Characterizations of labour
In the context of labour law, Mark Freedland and Nicola Kountouris define “legal construction” as “the whole process of ascribing legal form and structure to personal work relations”, which includes determining the applicability of legal, or legally recognized, norms.[70] A significant part of this process is, they aver, the classification (or taxonomy) of personal work relations, which is carried out to ascertain the particular applicability of a set of norms to a particular personal work relation.
This aspect is not a self-contained element within the process, but according to Freedland and Kountouris, “part of a very complex activity which we identify as the ?legal characterization' of personal work relations.”[71] Legal characterization, according to them, is the combination of taxonomy with regulation, which is the pronouncement of certain norms as applicable to a particular work relation. As a consequence, the scholars point out, legal characterization demonstrates how closely “legal categories of personal work are bound up with particular sets of norms in particular legal systems at particular moments in time”, and that “ ?legal characterization' depicts an activity which is very contingent upon the particular legal and practical context in which it takes place, and very dependent on the path by which that context was created.”[72] Freedland and Kountouris state that legal characterization may be descriptive or prescriptive, with the former being concerned with pure application of norms and the latter with fundamental re-classification and re-regulation. Depending on the role of the legal actor in question, there may be a tendency to choose a single mode, such as judges predominantly choosing the descriptive mode and legislators frequently, though not exclusively, operating in the prescriptive one. For theorists and policy makers, the scholars observe, the choice may be difficult, and they suggest a combination of the two, using descriptive mode for analysis and in prescriptive mode, offer conscious criticism.[73]For this study, these definitions of the legal characterization of personal work relationships offer interesting guidance. Slavery, as explored in detail in Part I, is not usually conceptualized as a work relationship, but in historical discourses commonly regarded as a system of oppression, integral to early colonialism, which itself has been conceptualized as a scheme of domination. Characterizing slavery as a system of plantation labour, as proposed here, is a re-classification which allows for critical analysis of the relationship between plantation owners and their workers, and the effect of that relationship not only in the context of the contemporary economy, but also in shaping the emerging multi-ethnic society. This reclassification of also places slavery within the same framework of analysis as that of indentured labour, and thus helps to bring out and elucidate the commonalities of both systems, not simply at the superficial level of working conditions, but more fundamentally as the structures upon which Mauritian society was erected.
A brief example might suffice here. A major issue in the way in which indentured labour operated in Mauritius was through the commodification of labour, the negation ofwhich is the principal tenet behind the idea of labour law.[74] Polanyi argues against the idea that labour is a commodity, stating that to describe it as such, as with land or money, is “entirely fictitious”, while also stating that it is this fiction which enables the market economy to operate.[75] But is it labour which is bought on and sold? Karl Marx elucidates this point when discussing the “price” of labour. The price is of course the wages, defined by Marx as “the sum of money paid by the capitalist for a particular labour time or for a particular output of labour.”[76] He stipulates however that the transaction merely appears to
be a sale of labour, and asserts that it is in fact the “labour power” that is being sold.
Marx explains that it is the labour power which is equivalent to any other commodity, and may be substituted for such. Hereby, the labour power is the worker's commodity, which is exchanged for another commodity, namely money. However, within that framework, labour power understood in terms of “labour time” was not that which was commodified in the case of slaves - rather it was the slaves themselves who were the commodity, unlike the free labourer who sells the “hours of his life”.[77] The shift from slavery to indentured labour, can thus be analyzed through an examination of the extent to which there is a transformation in the character of the “commodity” being exchanged - whether, for example, the system of indentured labour could be understood as one concerned with the exchange of labour time as opposed to the body of the labourer.In the case of Mauritius, it is submitted, such a transition is not discernible. Indentured labour continued to be redolent of slavery precisely because workers continued to be treated as expendable commodities. This, it is argued in the work, is partially the result of the island's geographical proximity to India and Africa, providing an endless reservoir of workers during the periods of indentured labour and slavery respectively, the availability of which incidentally also acted as a brake upon amelioration policies of any kind.
1.2.8
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