Theories of labour law

This work does not address general labour law concerns as such, but is concerned with the legal regulation of labour as it was conceived when “free” labour was to replace slavery in a political economy.

Contemporary attention to labour law is directed at a wide range of issues, such as wages, working time, discrimination and trade union membership. How­ever, it is the perspective one assumes which fundamentally affects the how chal­lenges in this area are theorized. Two angles appear to be pervasive: human rights on the one side, and political economy on the other.^[62] Within the framework of the former, the focus largely falls upon the relationship between local labour regulation and the international legal environment, such as the binding directives issued by the EU or statements by the International Labour Organization, in which considerations as to the competitive undercutting of labour standards are brought to the fore.

In the context of the latter, labour law is examined from the perspective of its distributional effects within a national political economy. Kerry Rittich, for example, conceives labour and employment law as constituting, in their most basic form, a social contract, reflective of the political visions of the day, and notes that they are effectively the mechanism by which resources are distributed and the benefits and costs of economic activity shared by society.^[63] Her concern with the distributional consequences of economic arrangements is shared by Duncan Kennedy who has provided an insightful analysis on the distributive function of law in the context of creating, or re-creating, social injustice.^[64] Contrasting a real­ist analysis of the capitalist system with the traditional economic point of view, Kennedy states that the notion of “freedom” has no part the in the realist's inter­pretation of the agreement between capital and labour.

Importantly, the coercion paradigm illuminates the role of law. As Kennedy explains, the state becomes implicated in the distribution of income simply by its use of force to assure compliance to the bargain agreement, even though that agreement might have been entered into “freely” by the parties.^[66] Legislatures and judges establish the “ground rules”, meaning the legal framework, within which labour relations take place. Drawing on Robert Hale's theory on the dis­tribution of wealth and power, Kennedy states that these ground rules play a sig­nificant “causal” role, contrary to standard Marxist analysis (in which the law was frequently regarded as “superstructural”).^[67] The reason why the distributional effects of law are largely invisible is, according to Kennedy, because ground rules of permission are generally not perceived as such, unlike those of clear prohibi­tion. However, these are not omissions in the law, but “conscious decisions” by legislators. Commonly “when lawmakers do nothing, they appear to have noth­ing to do with the outcome”, yet it is also possible to conceive of “inaction” as being the consequence of “a policy”, and legal rules to have active effect, in the sense that they always could prohibit the conduct in question.^[68]

Kennedy's attention to the distributive effects of the law, whether as a con­sequence of permission or prohibition, is particularly relevant to the current research in respect of the analysis of the effects of each labour system. It is argued throughout that the legal arrangements prevailing within each labour system, not only distributed property (including, most visibly, what “counted” as property), but also had distributional effects in terms of what kinds of activities they enabled or closed down.

One qualification here should be noted. As Kennedy himself observes, the main objection to the pervasiveness of the distributive effects of law is that it may arguably overstate how much law may be seen to influence social behaviour. He states, however, that a distinction should be maintained between plain ineffectual enforcement on the one hand, and actual permission on the other hand, a dis­tinction which may be easily overlooked when noncompliance is discussed. Fur­thermore, Kennedy notes that social norms may also play a role in distribution, and it may be argued that it is these norms which most greatly effect distribution. In this context, judicial and legislative law-making must also be differentiated.^[69] Whilst taking these objections into account, the distributive paradigm provides a useful starting point for assessing the impact of slavery and indentured labour in the subsequent formation of social strata in Mauritius as this work, it is hoped, will illustrate.

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