1. The Crisis in Labour Law Orthodoxy

The now well-entrenched understanding of contemporary scholars of Labour Law is that the field exists in crisis. This “crisis in Labour Law” thesis essentially emerged out of concerns about the diminution of national states’ regulatory capacities within labour markets and the wider economic sphere wrought by neoliberalism.^{Footnote 11} The crisis is said to provide an opportunity to transform the borders of the field.^{Footnote 12} One place where this transformational project has been pursued is in the emergence of transnational labour law, an approach (or sets of approaches) concerned with, in the words of the late Bob Hepple, “[a] spider’s web of hard and soft transnational regulation […] weaved around domestic labour laws and […] profoundly influencing them.”^{Footnote 13} Extending across national boundaries, transnational “rules and procedures” apply unilaterally, bilaterally, regionally, or through multilateral arrangements.^{Footnote 14} Domestic labour laws are de-centred within transnational labour law accounts. That said, it is uncertain the extent to which proponents of these accounts remain indebted to the foundational assumptions of postwar Anglo-American Labour Law.

Temporary labour migration from the global South to the North offers a prescient example through which to explore Labour Law’s prevailing understandings. The regulation of migrant labour incorporates such conventionally understood legal spheres as labour and employment, immigration, criminal, corporate, trade, environmental, land use planning, housing, social assistance, and public health, among others.^{Footnote 15} Yet, certain exceptions aside,^{Footnote 16} Labour Law scholarship largely has treated migrant labour and these myriad other legal-regulatory spheres or regimes as largely unimportant and beyond its domain and purview. Why has Labour Law scholarship not taken up the issue of migrant labour regulation in a more meaningful way? After all, the Canadian state has utilized “foreign labour” through temporary labour migration throughout the so-called postwar period.^{Footnote 17} A reflection on certain core assumptions of Labour Law offers an explanation.

The origin story of postwar Anglo-American Labour Law, its “foundational framing and justificatory account of itself,” is what Brian Langille terms its “constituting narrative.”^{Footnote 18} This narrative is organized around the historical emergence and development of the three legal regimes governing employment: the individual contract of employment, statutorily-protected collective bargaining, and minimum employment standards.^{Footnote 19} The constituting narrative, following Langille, perceives “our current law as a reaction” to the “real life” limits of contract law.^{Footnote 20} On this account, labour laws, and in particular statutory collective bargaining, emerged with the aim of “constraining, or humanizing, or softening, or resisting contract in the name of justice, democracy, fairness, and equality.”^{Footnote 21} Labour laws therefore were conceived as a way of attaining “justice against, or as resistance to, markets.”^{Footnote 22}

Widening recognition of the deleterious effects of neoliberal globalization, including the mounting real life injustices stemming from the proliferation of precarious employment and life, has brought into question Labour Law’s constituting narrative. It is my contention, however, that the questioning has not occurred deeply enough. While it has spurred something of a disciplinary respite, the crisis thesis rests on obfuscation of key shortcomings of the constituting narrative, which become apparent when we query recent interventions and proposals of prominent scholars. Take, for instance, Harry Arthurs’s “counter-factual” proposal to re-envision the focus of orthodox Labour Law through the “law of economic subordination and resistance.”^{Footnote 23} The proposal launches from the premise that there is no longer collective identity for workers as “the terms ‘labour’ and ‘worker’ are being emptied of meaning.”^{Footnote 24} Arthurs characterizes the contemporary world as: “a world in which ‘labour’ as a sociological descriptor and political force has become anachronistic, in which ‘workers’ no longer answer to that name, and in which ‘employment’ has become so conceptually indeterminate and functionally attenuated that it no longer constitutes a stable platform for the protection of rights or the projection of entitlements.”^{Footnote 25} And he adds, “if workers do not perceive that they have collective interests, if they are not committed to a collective identity and collective action, there is not much collective labour law can do to improve their lot.”^{Footnote 26} Arthurs levels additional blame on the reliance upon “special pleading” about “the unique character of employment relations” as “a semi-autonomous legal subsystem.”^{Footnote 27} In this supposed “future without ‘labour,’” the only observable commonality is economic subordination and resistance. That is, a counterfactual existence in which “labour law might have presented itself as part of a broad array of differentiated but related subsystems that collectively challenged some core conceptions of the law of industrial and post-industrial capitalism.”^{Footnote 28}

Now my intervention is meant not as a quibble with, but in fact support for, an alternative presentation of labour laws as a subset of an interconnected whole. And, to be clear, I wholeheartedly agree with the need to take human resistance as a central heuristic—indeed, as I maintain elsewhere, resistance marks a pivotal device for conceptualizing social change.^{Footnote 29} That said, I am not certain the “future without labour” account confronts the full implications of its claims. A crucial shortcoming of the field stems from its tight mooring with the three governing legal regimes. Prevailing treatments of postwar labour laws have tended to operate within analytical frameworks artificially truncated and constrained by legal disciplinary distinctions. These accept—and even for some promote—the disciplining of labour laws within a discrete field insulated from overlaps with and intrusions from other fields. The academic acceptance and construction of postwar labour laws produced disciplinary “silo-ing” effects. Labour controls imposed through other regulatory frameworks (such as immigration) were not deemed worthy of consideration by scholars of the field. And to the point, the only sites from which most field scholars had conceived of “fight back” were linked directly (and more or less exclusively) with the aforementioned governing regimes. In fact, there was little if any space to consider collective acts of resistance beyond those which were expressly granted through the recognized institutional channels of statutory collective bargaining. At most, field scholars expressed modest concern for broader political struggles of unionized workers (and pointed to the limitations and weaknesses of organized labour’s social democratic orientation). Outside of certain forceful interventions on welfare state capitalism, field analyses tended not to stray far from well-trodden paths. Beyond narrowly specific legal-institutional forms, human agency and resistance largely were not part of Labour Law orthodoxy. Collective worker action is not robustly accounted for in the constituting narrative. The absence of these features serves to illustrate the tight scholarly hold of postwar collective bargaining and its particularly narrow formation of collective worker rights and rights-based outcomes.

Further, questions surround the empirical foundation for this “future without labour” claim. The claim turns on the perception of contemporary worker action as individualized, consumer-centric and de-collectivized, if not anti-collectivist.^{Footnote 30} But if this understanding conforms with certain Left critiques of neoliberalism which posit the deepening individualization of forms of social responsibility and subjectivity, it likewise misses how neoliberal subjectivity is introduced and imposed through the promotion of narrow, market-defined conceptions of “entrepreneurialism” and “competition.” Neoliberal logic, to be sure, has been internalized into the self-identities of people who themselves work to condition each other. But the production of neoliberal subjectivity stems from neoliberalism as a political-economic project which, at its core, seeks to restore and deepen capital accumulation following the so-called postwar compromise.^{Footnote 31} In this we find a refashioning or “reconstitution” of individual and collective subjectivity^{Footnote 32}—and not, as too often simplistically stated or implied, the displacement of the latter at the expense of the former. These trends, evident within labour unionism among other areas, serve to deepen reformist forms of collective worker action. In other words, we are left with an interpretation that at once elevates individual identity and action and ignores the promotion of reformist collectivism, while also downplaying wider, rich histories of collective resistance struggles from below.^{Footnote 33}

Reproducing Labour Law’s “Others”

Leaving aside questions of empiricism, other concerns persist. Conceptual ambiguity surrounds the use of the term “labour law” in the “future without labour” contention. Discussions of “labour law” of course can become muddled in whether we are referring to the academic field, policy rules or discourse, professional practices, or some or all of the above. Arthurs recognizes the muddling as a mere terminological or definitional issue and not as one with far deeper substantive implications. But the terminological shiftiness works to hide the question of the role and involvement of various constituents—especially scholarly adherents—in reinforcing or resisting the conditions created through labour laws. A similar shiftiness is apparent in how the account confines the geopolitical focus of analysis. Characterizations of labour law as “Anglo-American,” “advanced,” and “developed” are employed, again, without proper consideration of substantive implications—and, thus, without effort to truly test or broaden the field’s geopolitical horizons. Here we find opportunity to consider the role and impact of the global South-North relationship in the construction and operation of so-called Anglo-American Labour Law, a point to which I return to below. For now, I wish only to bring to light the lack of sustained interrogation of geopolitical tradition which signals a particular kind of flaw in the mode of critique adopted.

Specifically, Arthurs’s account regards “labour law” as a victim of its own special or even exceptional circumstances. But to portray “it” as an actor is to mount a critique without a subject.

And while subjectless critique may have a place within wider scholarly inquiry,^{Footnote 34} in this instance it has a tendency to cover up, exonerate, or re-inscribe. In failing to examine how adherents to orthodox Labour Law’s constituting narrative contributed to the perceived crisis, we are relinquishing both intellectual responsibility and an opportunity for constructive reckoning. This produces a peculiar bit of analysis in which scholars expressly “point the finger” at workers, or at “labour law” as though it were some magical (semi)autonomous subject or actor, but stand unwilling to effectively engage in meaningful self-interrogation of the role of its academic adherents, past and present. It is, as Yeats suggests in the epigraph, a “ceremony of innocence” of sorts. Specifically, I argue that the ceremony of innocence performed by orthodox Labour Law’s scholarly devotees amounts to actively not knowing their ongoing role in reproducing disciplinary marginalization and exclusion.

What becomes evident is the functioning of Othering and belonging as political forces within the postwar construction of Labour Law. And—as I put it elsewhere—here is the rub: “Postwar labour law orthodoxy was formulated in specific and limiting ways which reproduced a series of ‘[O]thers’ who fell outside of its purview and who it cared little about engaging. There were large swaths of people, forms of human activities, approaches to law and regulation, and ways of organizing exchange relations and social life, which fell beyond its ambit.”^{Footnote 35}

We are forced then to recognize the ongoing work of field scholars in reproducing marginalized and excluded “Others.” The reproduction of Otherness occurs in key ways. In particular, as “critical” scholarship in the field has deftly shown, “labour” and “worker” are construed in narrow and stifling terms, organized around the dominant postwar mode of production: industrialized, Fordist mass-manufacturing. Fordism provided the paradigm through which the norm of standard employment emerged. It ultimately assumed a white, able-bodied male citizen worker who, as the primary breadwinner in a heterosexual relationship, received decent wages and benefits sufficient to support the family, while a dependent female caregiver performed the daily upkeep of the household. Through hard-fought struggle, the norm became entrenched within the legal regimes of statutory minimum protections and of industrial pluralism, which situated freedom of association in a procedurally-oriented, reformist form of labour union representation and collective bargaining. Labour Law scholarship troublingly accepted the core premises of the standard employment norm and industrial pluralism.

We could also note here evidence on the shifting spatial contours of the industrial working class, which not only counters prevailing empirical claims but also illustrates the analytical effects of these Othering processes. As the recent intervention of Immanuel Ness serves to illustrate, the “industrial working class has not disappeared but has been relocated and reconstituted in the South ….”^{Footnote 36} The existence of resistance struggles from this reconstituted industrial proletariat, what Ness terms a “southern insurgency,” undermines the “future without labour” premise by illustrating how collective identity and action have been reconstituted “beyond” the North through global capitalist neoliberalization.

Therefore, the point is that the “future without labour” claim, a subset of the wider crisis in Labour Law thesis, is constructed on a deeply flawed premise: that postwar orthodoxy fully or effectively grasped the richness and complexity of the categories of labour and worker and collective action—not to mention work and social life—in that period. It did not. No amount of gesturing toward a “new” analytical future can overcome the intrinsic reliance upon such a deficient understanding.^{Footnote 37} Following from this, I maintain the ceremony of innocence of field scholars reproduces processes of Othering and the attendant production of belonging found in labour laws, the constituting narrative, and wider social relations. But if Ness is correct about the southern insurgency, we also must appreciate the effects of other contemporary and ongoing South-North “insurgencies” on relations of work. Those deemed racialized and unfree, temporary migrant labour are emblematic. For postwar Labour Law, workers constructed as “the migrant Other”—among other “Others”—simply did not belong.^{Footnote 38} Meaningful engagement with the spheres of regulation of migrant labour was largely stifled within the wider academic portrayal of postwar labour laws as a discrete and insulated field tightly moored with the three regimes of employment. In this we find a further dilemma of Labour Law orthodoxy, identified elsewhere in social scientific and other academic thought as methodological nationalism, the seemingly pervasive treatment of the national state as the most appropriate, if not natural, unit of analysis.^{Footnote 39} The marginalization and exclusion of migrant labour within Labour Law orthodoxy is evidence of the constituting narrative’s construction within the spatial and temporal parameters of methodological nationalism, framing the core constructs of “labour” and “worker” and “collective action,” among others. But if methodological nationalism presents a real challenge for Labour Law scholars, the solution does not rest in claiming that the national state does not matter. Indeed, states assume crucial roles in contemporary migration management and the re/production of global capitalist relations.^{Footnote 40}

But there is more to the point. A clear relationship emerges between the constitution of, on one side, the scholarly-epistemic community of postwar, Anglo-American Labour Law and, on the other, the national migrant-receiving community of Canada and the communities of sending states. These are mutually constitutive sets of communities enforcing and reinforcing processes of Othering and belonging within and between each. Insofar as the community of Labour Law refrains from challenging “exclusionary impulses,” it is part of the problem. In other words, there is a particular spatiotemporality to the Othering and belonging found within the epistemic community of Anglo-American Labour Law in the postwar moment which plays some role in the preservation of global inequality; or at the very least, that community has not expressly and forcefully devoted itself to confronting it.

Temporary labour migration develops within ongoing hierarchical relations of the global South and North, a geopolitical context excluded from the purview of “Anglo-American” Labour Law. The failure of Labour Law orthodoxy to consider the global South-North relationship in its constitution of labour and worker and beyond, undermines the field’s ability to appreciate the production of migrant labour. I take up these points in the final section.

Confronting “the South of the North”

Anglo-American Labour Law scholarship has not fully confronted the role and impact of the global South in the construction and operation of the field. While there are strong interventions committed to these sorts of explorations,^{Footnote 41} certain prominent accounts appear quite resistant. I argue that the global South-North relationship marks a foundational spatial and temporal dimension of the production of labour. But rather than focusing analysis, the argument invites a further set of questions: Is the widespread adoption of concepts of “the North” and “the South” all that is missing from Labour Law? Is reconstituting the constituting narrative with a view to the global South possible given underlying or entrenched assumptions and commitments? And, if so, is it a useful or even worthwhile endeavour? What is the contribution of key markers like “Anglo-American” and “postwar” analytically? Are these distinctions productive in anything but the most general terms? Or, do they serve merely to hide alternative approaches and assumptions, histories and geographies—flown as analytical flags of convenience to avoid answering questions about scholars’ geopolitical affiliations, sensibilities, and commitments? And a further set of questions emerges in the specific context of this analysis: What if concern rested not primarily with the limits of Labour Law, nor with saving the field as it were, but with confronting the problématique that temporary labour migration presents? What should we make of temporary labour migration’s capacity to situate people in work and life relations spanning differentiated societies of the South and the North? Where do national states, racialization, labour unfreedom, colonialism, settler colonialism, capitalist imperialism, among other critical constructs, fit into understandings of the making of migrant labour?

To see Labour Law as a largely regressive and problematic affair is also to acknowledge that these shortcomings mirror much—but not all—of socio-legal studies in the global North. In contrast, intervenors such as Boaventura de Sousa Santos, Jean and John Comaroff, Eve Darian-Smith and scholars of Third World Approaches to International Law, widely known as TWAIL, have sought to confront the “southern question” within the socio-legal imaginary.^{Footnote 42} Third World Socio-Legal Studies, as it is collectively termed by Radha D’Souza, adopts a particular set of methodological lenses and commitments to appreciate the relationship between socio-legal thinking and the global South-North interaction. While I cannot engage with all of these perspectives, there is a collective sense that knowledge about law cannot escape global geopolitical hierarchies. Like wider socio-legal studies, postwar Labour Law’s disciplinary silo represents a “geopolitical silo”^{Footnote 43} as knowledge production about the labour-law interaction develops parochially. The normative question then becomes from what spatiotemporal location(s) should we seek to make sense of the production of labour and migrant labour specifically? And, to borrow the words of Jean and John Comaroff, further complexity awaits the account, for: “[e]mpirically speaking, however it may be imagined, the line between north and south is endemically unstable, porous, broken, often illegible. It is not difficult to show that there is much south in the North, much north in the South, and more of both to come in the future. All of which is underscored by the deep structural articulation—indeed, by the mutual entailment—of hemispheric economies […] which defy any attempt to unravel them along geopolitical axes.”^{Footnote 44}

It is this particular dynamic, what we might term “the South of the North,” that presents a qualitatively distinct set of challenges which the mere introduction and widespread adoption of conceptions of the South and the North cannot address.

D’Souza’s formidable intervention offers helpful support for thinking through the issue of normative spatiotemporal location. Deftly interrogating the philosophical foundations of Third World Socio-Legal Studies, D’Souza identifies two dominant understandings of law in the global South—imperial agendas and global solidarities—which exist in binary opposition, and yet, tensions notwithstanding, both adhere to liberal philosophy’s undermined concept of society. Referring to these binary oppositions—which play out in socio-legal studies as comparative law versus TWAIL approaches, modern versus traditional law, state centralism versus legal pluralism—, D’Souza points to an over-reliance on conceptions of “society” derived from liberal social philosophy in the western or “Greco-Roman-Christian intellectual traditions.”^{Footnote 45} As such, “society” receives a binary treatment as opposed to, as D’Souza invites, a differentiated understanding following from a “non-dualist” philosophical commitment to allowing analytical tensions to exist. In this respect, in the context of “law and society” analysis of the global South, the task is to attend not only to law, but also to the “different modes of constitution of societies,” primarily an internally-derived or capitalist mode and an externally-imposed or imperialist mode.^{Footnote 46}

From D’Souza we might begin to identify ways forward for reconstituting Labour Law—and for directing the general production of transnational labour law—aimed at “bringing in” the global South by rendering more robust and nuanced conceptions of “its” legal-societal constitutions.

Temporary Labour Migration to Canada in Space and Time

Temporary labour migration to the global North produces a set of processes, situated relations, and experiences, a dynamic, that functions through and across national state borders of the South and the North. South and North bleed together through Canada’s temporary labour migration regime. But it is not a process or space of transcendence of national state territoriality. As a structure of living together and belonging, the regime is constituted through an amalgam of legal spheres deriving from the respective participating states and the wider global system of national states. The hierarchical state system, functioning on the premise of universal sovereignty and the preservation of territorial integrity, sets up a complex interplay of sending states and the receiving state in migrant labour production. Sending states assume a pivotal role by virtue of the fact that migrant workers, as respective citizens, are “tethered” to them. These states discipline the national populace in a myriad of ways that not only make labour into a productive force, understood in capitalist terms, but also prepare workers (and their kin) for the circular migratory experience. People are pre-sorted into categories of desirability based on “human capital” criteria such as formal educational attainment, health, and demographic profile. The Canadian receiving state, reliant upon projections of immigration humanitarianism and multicultural acceptance and tolerance, carry out migration selection in ways that marginalize, exclude, and render certain people more or less desirable but unequal. Taken together, it is through the interaction of national states that peoples of the global South are rendered racialized, unfree, and migrant, productive labour. And it is through this hyper-exploitation that these peoples are devalued and differentially treated or incorporated into the work and social life of the North.

Canada’s approach to temporary labour migration can be further situated in colonialism, marking a continuation of resource extraction from the global South which followed European contact and the colonization of vast peoples and territories. These southern territories, plentiful in fertile land, and water, minerals, and other raw materials that run with it, as well as existing indigenous and introduced populations, provided the site and source of labour power for a colonial-capitalist agenda of natural resource extraction. Canada’s approach to migration extends the hyper-exploitative arrangement through the extraction of human resources from the global South. This harnessing of so-called foreign labour from the global South facilitates the pursuit of capital accumulation, especially within Canada’s political economy. Temporary labour migration is therefore deployed as a counter to the political and economic gains secured through struggles for independence and ensuing claims for global solidarity, serving to shift the global North’s “post-colonial” burden of responsibility back onto inhabitants of the global South.

Just as Canada’s migration approach functions in ways consistent with colonialism, it too performs the work of settler colonial hyper-exploitation, displacement and dispossession.^{Footnote 47} The production of migrant labour occurs as a basis for preserving if not deepening the colonial settlement project in Canada. The work and very existence of migrant labour is called upon to bolster the underlying claim of territorial authority of the Canadian settler state. This work is further complicated by the fact that some of those deemed desirable migrants belong to indigenous communities which were, themselves, shaken from traditional territories of the South. The South of the North dynamic therefore clarifies the ongoing and conjoined development of colonialism and settler colonialism as a continuation of the racialized devaluation of migrant labouring and Indigenous bodies. It is, as such, a pattern of relations and processes deeply rooted in the historical development of racialized global capitalism, which is utilized to justify, enforce and reproduce the existing skewed relationship between peoples and states on a global scale. Thus, the dynamic clarifies transnational labour migration’s spatiotemporal logic of power, which, while extending beyond any given national territorial context, spans local and global scales, as a continuation of national settler state authority and, through it, the dominance of capitalist classes.

All of this notwithstanding, the South of the North dynamic also represents a spatial and temporal location through which ordinary working people struggle for survival. The dynamic encapsulates a transnational regime of global production and social reproduction. It is contingent on the gendered production–social reproduction divide, but in it we also find evidence of collective solidarities and resistance struggles from below aiming to contest the divide and prevailing social relations. Through a more serious focus on this “geography of survival” of migrant workers, and its affinities and tensions with longstanding geographies of survival of Indigenous communities, enslaved and indentured peoples, and other Others, we might find generative opportunities in which the structures of living together and belonging can be understood and ultimately remade. If, as a mode of inquiry, transnational labour law is to provide sustained analytical support to these efforts, it must expressly confront the narrowness and insularity of postwar Labour Law and avoid at all costs the repackaging of the field’s well-worn deficiencies. And this may require a scholarly commitment to shedding its affiliations with field orthodoxy altogether.