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Feminist Reflections on the Scope of Labour Law: Domestic Work, Social Reproduction, and Jurisdiction

Abstract

Drawing on feminist labour law and political economy literature, I argue that it is crucial to interrogate the personal and territorial scope of labour. After discussing the “commodification” of care, global care chains, and body work, I claim that the territorial scope of labour law must be expanded beyond that nation state to include transnational processes. I use the idea of social reproduction both to illustrate and to examine some of the recurring regulatory dilemmas that plague labour markets. I argue that unpaid care and domestic work performed in the household, typically by women, troubles the personal scope of labour law. I use the example of this specific type of personal service relation to illustrate my claim that the jurisdiction of labour law is historical and contingent, rather than conceptual and universal. I conclude by identifying some of the implications of redrawing the territorial and personal scope of labour law in light of feminist understandings of social reproduction.

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Notes

  1. 1.

    Jamieson’s notion of cognitive mapping draws upon Althusserian understandings of ideology as common sense.

  2. 2.

    The idea of a gender contract blends Carole Pateman’s (1988) notion of a sexual contract with the idea of a social contract, a concept that aims to capture, social, legal, and political norms surrounding the exchange between breadwinning and caregiving, protection and freedom, and public and private responsibility (Fudge and Vosko 2001; Vosko 2010). Gender relations and discourses are inscribed with processes of racialisation. For example, the gender contract of male breadwinner and female housewife did not pertain to Black women in the UK, who were much more likely to be employed full-time that their white counterparts (Ashiagbor 1999).

  3. 3.

    The original study was conducted for the performing arts sector. However, the analysis has also been used to describe consequences of the lack of growth in productivity in public services such as public hospitals and state colleges. Another implication of the analysis is that public sector production is more dependent on taxation level than growth in the GDP.

  4. 4.

    Meg Luxton (2006) points out that apparent limits to the concept of social reproduction in part stem from the imprecision with which it can be deployed as a rubric under which all manner of tasks performed by women are collected. Jane Jenson (1986) points out the elision in the concept between different levels of analysis.

  5. 5.

    In 2011, the International Labour Conference adopted a Convention (No. 189) concerning decent work for domestic workers (Entry into force: 05 Sep 2013); Geneva, 100th ILC session (16 June 2011) that indicates that recently paid domestic work is being treated as a matter of employment and not family relations.

  6. 6.

    Regulation 19, Working Time Regulations 1998 (No. 1833 of 1998).

  7. 7.

    Council Directive 92/85. These exclusions emerged from the political settlement that grounded EU working condition laws in the realm of health and safety; Member States decided to exclude private homes and domestic work from the scope of health and safety laws. Directive 89/391 on Health and Safety singles out domestic workers from exclusion.

  8. 8.

    National Minimum Wage Regulations 1999 (No. 183 of 1998), Regulation 2:

    (2) In these Regulations “work” does not include work (of whatever description) relating to the employer’s family household done by a worker where the conditions in sub-paragraphs (a) or (b) are satisfied.

    (a) The conditions to be satisfied under this sub-paragraph are–

    (i) that the worker resides in the family home of the employer for whom he works,

    (ii) that the worker is not a member of that family, but is treated as such, in particular as regards to the provision of accommodation and meals and the sharing of tasks and leisure activities;

    (iii) that the worker is neither liable to any deduction, nor to make any payment to the employer, or any other person, in respect of the provision of the living accommodation or meals; and

    (iv) that, had the work been done by a member of the employer’s family, it would not be treated as being performed under a worker’s contract or as being work because the conditions in sub-paragraph (b) would be satisfied.

  9. 9.

    Noah Zatz (2008, 2011), who I will discuss in the following pages, endorses an idea of work that focuses on the activity, not the relationship, and he adopt a narrower scope of labour law than do Freedland and Kountouris by confining it to employment. Like them, Zatz does not want to disrupt prevailing conceptions of the appropriate scope of labour law.

  10. 10.

    Freedland and Kountouris (2011, 350) note that their analysis of personal work relations “is posed as a challenge to a generally accepted much simpler paradigm for the legal construction of personal work relations in which those relations are viewed as universally or nearly universally having the legal character of bilateral contract.”

  11. 11.

    Glenn (2010, 12–40) notes how slavery and indenture in the United States to forced women to care and imprinted domestic work as different from free wage labour.

  12. 12.

    I am using jurisdiction to refer to regulatory regimes that pertain to specific subject maters such as family law, tort law, contract law, tax law labour law.

  13. 13.

    Another is that it lacks the conventional indicia of employment—control and an employer.

  14. 14.

    The latter is Freedland and Kountouris’ concern.

References

  1. Albin, Einat. 2012. From “Domestic Servant” to “Domestic Workers”. In Challenging the legal boundaries of work regulation, ed. Judy Fudge, Shae McCrysal, and Kamala Sankaran, 231–250. Oxford and Portland: Hart.

    Google Scholar 

  2. Anderson, Elizabeth. 1999. What is the point of equality? Ethics 109(2): 287–337.

    Article  Google Scholar 

  3. Antonopoulos, Rania. 2008. The unpaid care work-paid work connection. The Levy Economics Institute of Bard College, Working paper no 541.http://www.levyinstitute.org/publications/?docid=1081. Accessed 25 July 2012.

  4. Ashiagbor, Diamond. 1999. The intersection between gender and ‘race’ in the labour market: lessons for anti-discrimination law. In Feminist perspectives on employment law, ed. Anne Morris, and Thérèse O’Donnell, 139–160. London: Cavendish.

    Google Scholar 

  5. Bakker, Isabella. 2007. Social reproduction and the constitution of a gendered political economy. New Political Economy 12(4): 541–556.

    Article  Google Scholar 

  6. Barzilay, Arianne Renan. 2012. Labor regulation as family regulation: Decent work and decent families. Berkeley J. Emp. & Lab. L. 33: 119–151.

    Google Scholar 

  7. Bauder, Harald. 2006. Labor movement: How migration regulates labor markets. Oxford: Oxford University Press.

    Google Scholar 

  8. Baumol, William. 1993. Health care, education and the cost disease: A looming crisis for public choice. Public Choice 77: 17–28.

    Article  Google Scholar 

  9. Baumol, William, and William Bowen. 1966. Performing arts, the economic dilemma: A study of problems common to theater, opera, music, and dance. New York: Twentieth Century Fund.

    Google Scholar 

  10. Becker, Gary. 1976. The economic approach to human behavior. Chicago: University of Chicago Press.

    Google Scholar 

  11. Benéria, Lourdes. 2008. The crisis of care, international migration, and public policy. Feminist Economics 14(3): 1–21.

    Article  Google Scholar 

  12. Benéría, Lourdes. 2003. Gender development and globalization. London: Routledge.

    Google Scholar 

  13. Bezanson, Kate. 2006. Gender, the state, and social reproduction: Household Insecurity in neo-liberal times. Toronto: University of Toronto Press.

    Google Scholar 

  14. Blackstone, William. 1979. Commentaries on the laws of England: A facsimile of the first edition of 1765-1769. Chicago: University of Chicago Press.

    Google Scholar 

  15. Busby, Nicole. 2011. A right to care? Unpaid work in European employment law. Oxford Monographs on Labour Law, Oxford University Press.

  16. Conaghan, Joanne. 2005. Work, family, and the discipline of labour law. In Labour law, work and family: Critical and comparative perspectives, ed. by Joanne. Conaghan and Kerry Rittich, 19–42. Oxford: Oxford University Press.

  17. Conaghan, Joanne, and Kerry Rittich. 2005. Introduction: interrogating the work/family divide. In Labour law, work, and family: Critical and comparative perspectives, ed. Joanne Conaghan, and Kerry Rittich, 1–18. Oxford: Oxford University Press.

    Google Scholar 

  18. Cooper, Davina. 2007. “Well, you go there to get off”: Visiting feminist care ethics through a women’s bathhouse. Feminist Theory 8(3): 243–262.

    Article  Google Scholar 

  19. Crompton, Rosemary. 2002. Employment, flexible working and the family. British Journal of Sociology 53(4): 537–558.

    Article  Google Scholar 

  20. Crouch, Colin. 2005. Capitalist diversity and change: Recombinant governance and institutional entrepreneurs. Oxford: Oxford University Press.

    Book  Google Scholar 

  21. Davidov, Guy, and Brian Langille. 2011. The Idea of Labour Law. Oxford University Press.

  22. Davies, Anne. 2012. Identifying ‘exploitative compromises’: The role of labour law in resolving disputes between workers. Current Legal Problems 65(1): 269–294.

    Article  Google Scholar 

  23. Deakin, Simon, and Frank Wilkinson. 2005. The law of the labour market: Industrialization, employment, and legal evolution. Oxford: Oxford University Press.

    Book  Google Scholar 

  24. Elson, Diane. 1999. Labour markets as gendered institutions: equality, efficiency and empowerment issues. World Development 27(3): 611–627.

    Article  Google Scholar 

  25. Federici, Silvia. 2012. Revolution at point zero: Housework, reproduction, and feminist struggle. Brooklyn: Autonmedia.

    Google Scholar 

  26. Federici, Siliva. 2004. Caliban and the witch: Women, the body and primitive accumulation. Brooklyn: Automedia.

    Google Scholar 

  27. Fraser, Nancy. 2013. A triple movement? Parsing the politics of crisis after Polanyi. New Left Review 81: 119–132.

    Google Scholar 

  28. Fraser, Nancy. 2009. Scales of justice: Reimaging political space in a globalizing work. New York: Columbia.

    Google Scholar 

  29. Fredman, Sandra, and Judy Fudge. 2013. The legal construction of personal work relations and gender. Jerusalem Review of Legal Studies 7(1): 321–340.

    Article  Google Scholar 

  30. Freedland, Mark, and Nicola Kountouris. 2011. The legal construction of personal work relations. Oxford: Oxford University Press.

    Book  Google Scholar 

  31. Fudge, Judy. 2013. From women and labour law to putting gender and law to work. In A research companion to feminist legal theory, ed. Margaret Davies, and Vanessa Munro, 321–340. Franham: Ashgate.

    Google Scholar 

  32. Fudge, Judy. 2012a. Blurring legal boundaries: Regulating work. In Regulating work: Challenging legal boundaries, ed. Judy Fudge, Shae McCrystal, and Kamala Sankaran, 1–26. Oxford: Hart.

    Google Scholar 

  33. Fudge, Judy. 2012b. Global care chains: Transnational migrant care workers. International Journal of Comparative Labour Law and Industrial Relations 28(1): 63–70.

    Google Scholar 

  34. Fudge, Judy. 2012c. Precarious migrant status and precarious employment: The paradox of International Rights for Migrant Workers. Comparative Labor Law and Policy Journal 34(1): 101–137.

    Google Scholar 

  35. Fudge, Judy. 2011a. Labour as a ‘fictive commodity’: Radically reconceptualizing labour law. In The idea of labour law, ed. Guy Davidov, and Brian Langille, 120–135. Oxford: Oxford University Press.

    Chapter  Google Scholar 

  36. Fudge, Judy. 2011b. Global care chains, employment agencies and the conundrum of jurisdiction: decent work for domestic workers in Canada. Canadian Journal of Women and The Law 23(1): 235–264.

    Article  Google Scholar 

  37. Fudge, Judy. 2005. The new duel-earner gender contract: Work-life balance or working-time flexibility? In Labour law, work and family: Critical and comparative perspectives, ed. Joanne Conaghan, and Kerry Rittich, 261–288. Oxford: Oxford University Press.

    Google Scholar 

  38. Fudge, Judy. 1999. Legal forms and social norms: Class, gender and the legal regulation of women’s work from 1870 to 1920. In Locating law: Race/class/gender connections, ed. Elizabeth Comack, 160–182. Halifax: Fernwood.

    Google Scholar 

  39. Fudge, Judy. 1997a. Rungs on the labour law ladder: Using gender to challenge hierarchy. Saskatchewan Law Review 60(2): 237–263.

    Google Scholar 

  40. Fudge, Judy. 1997b. Little victories and big defeats: The rise and fall of collective bargaining rights for domestic workers in Ontario. In Making the match: Domestic placement agencies and the racialization of women’s household work, ed. Abigail Bakan, and Daiva Stasiulis, 119–145. Toronto: University of Toronto Press.

    Google Scholar 

  41. Fudge, Judy, and Brenda Cossman. 2002. Privatization, law and the challenge to feminism. In Privatization, law and the challenge to feminism, ed. Brenda Cossman, and Judy Fudge, 3–37. Toronto: University of Toronto Press.

    Google Scholar 

  42. Fudge, Judy and Guy Mundlak. 2013. Justice in a globalizing world: Resolving conflicts involving workers rights beyond the nation state. European University Institute, Faculty of Law working paper, 2013/06.

  43. Fudge, Judy, and Rosemary Owens (eds.). 2006. Precarious work, women, and the new economy: The challenge to legal norms. Oxford: Hart Publishing.

    Google Scholar 

  44. Fudge, Judy, and Leah Vosko. 2001. Gender, segmentation and the standard employment relationship in Canadian labour law and policy. Economic and Industrial Democracy 22(2): 271–310.

    Article  Google Scholar 

  45. Gardiner, Jean. 1997. Gender, care and economics. Hampshire: Macmillan.

    Google Scholar 

  46. Glenn, Evelyn Nakano. 2010. Forced to care: Coercion and caregiving in America. Cambridge, Mass: Havard University Press.

    Google Scholar 

  47. Hochschild, Arlie Russell. 2000. Global care chains and emotional surplus value. In On the edge: Living with global capitalism, ed. W. Hutton, and A. Giddens, 131–146. London: Jonathon Cape.

    Google Scholar 

  48. Halley, Janet, and Kerry Rittich. 2010. Critical directions in comparative family law: Genealogies and contemporary studies of family law exceptionalism. The American Journal of Comparative Law 58: 753–775.

    Article  Google Scholar 

  49. Himmelweit, Susan. 2013. Care: Feminist economic theory and policy challenges. Journal of Gender Studies Ochanomizu University 16: 1–18.

    Google Scholar 

  50. Jamieson, Frederic. 1991. Postmodernism, or the cultural logic of postmodernism. Durham, NC: Duke University Press.

    Google Scholar 

  51. Jenson, Jane. 1986. Gender and reproduction, or babies and the state. Studies in Political Economy 20: 9–46.

    Google Scholar 

  52. Kahn-Freund, Otto, and William Wedderburn. 1971. Editorial Foreward. In John Eekelar, ed. Family Security, and Family Breakdown. Harmondsworth: Penguin.

    Google Scholar 

  53. Kofman, Eleonore. 2012. Rethinking care through social reproduction: Articulating circuits of migration. Social Politics 19(1): 142–163.

    Article  Google Scholar 

  54. Lerner, Gerda. 1997. Why history matters: Life and thought. New York: Oxford University Press.

    Google Scholar 

  55. Luxton, Meg. 2006. Feminist political economy in Canada and the politics of social reproduction. In Social reproduction: Feminist political economy challenges neo-liberalism, ed. Kate Bezanson, and Meg Luxton, 11–44. Montreal: McGill-Queen’s University Press.

    Google Scholar 

  56. McCann, Deirdre. 2012. New frontiers of regulation: Domestic workers, working conditions and the holistic assessment of nonstandard work norms. Comparative Labor Law and Policy Journal 34: 101.

    Google Scholar 

  57. McDowell, Linda. 2001. Father and ford revisited: Gender, class and employment change in the new millennium. Transactions of the Institute of British Geographers 26(4): 448–464.

    Article  Google Scholar 

  58. Mahon, Rianne, and Fiona Robinson. 2011. Introduction. In Feminist ethics and social policy. Towards a new global political economy of care, ed. R. Mahon and F. Robinson, 1–16. Vancouver: University of British Columbia Press.

  59. Mullally, Siobhán, and Clíodha Murphy. 2014. Migrant domestic workers in the UK: enacting exclusion, exemptions and rights. Human Rights Quarterly 32(2). Forthcoming.

  60. Mundlak, Guy. 2011. The third function of labour law: Distributing labour market opportunities among workers. In The idea of labour law, ed. Guy Davidov, and Brian Langille, 315–328. Oxford: Oxford University Press.

    Chapter  Google Scholar 

  61. Mundlak, Guy. 2009. De-territorializing labor law. Law and Ethics of Human Rights 3(2): 189–222.

    Article  Google Scholar 

  62. Orozco, Amaia Pérez. 2009. Global perspectives on the social organization of care in times of crisis: Assessing the policy challenge (Gender, Migration and Development Series). The United Nations International Research and Training Institute for the Advancement of women, working paper no. 2. http://www.un-instraw.org/data/media/documents/GCC/WORKING%20PAPER%202%20-%20INGLES.pdf Accessed 25 July 2013.

  63. Parrenas, Rhacel Salazar. 2005. Children of global migration: Transnational families and gendered woes. Stanford: Stanford University Press.

    Google Scholar 

  64. Pateman, Carol. 1988. The sexual contract. Cambridge: Polity Press.

    Google Scholar 

  65. Peck, Jamie. 1996. Workplace: The social regulation of labour markets. New York: The Guilford Press.

    Google Scholar 

  66. Peterson, Spike. 2003. A critical rewriting of global political economy: Integrating reproductive, productive and virtual economies. London, New York: Routledge.

    Book  Google Scholar 

  67. Picchio, Antonella. 1992. Social reproduction: The political economy of the labour market. Cambridge: Cambridge University Press.

    Google Scholar 

  68. Picchio, Antonella. 2003. A macroeconomic approach to an extended standard of living. In Unpaid work and the economy: A gender analysis of the standard of living, ed. Antonell Picchio, 1–10. New York: Routledge.

    Google Scholar 

  69. Polanyi, Karl. 1944. (2002 2nd edition). The great transformation: Origins of our time. Boston: Beacon Press.

  70. Rai, Shirin, Catherine Hoskyns, and Dania Thomas. 2013. Depletion: The costs of social reproduction. International Feminist Journal of Politics. doi:10.1080/14616742.2013.789641.

    Google Scholar 

  71. Scott, Joan. 1986. Gender: A useful category of historical analysis. The American Historical Review 91(5): 1053–1075.

    Article  Google Scholar 

  72. Seccombe, Wally. 1992. A millennium of family change. London: Verso.

    Google Scholar 

  73. Silbaugh, Katherine. 1996. Turning labor into love: Housework and the law. North Western University Law Review 91(1): 1–86.

    Google Scholar 

  74. Stewart, Ann. 2011. Gender, law and justice in a global market. Cambridge: Cambridge University Press.

    Book  Google Scholar 

  75. Strauss, Kendra. 2012. Unfree again: Social reproduction, flexible labour markets and the resurgence of gang labour in the UK. Antipode 45(1): 180–197.

    Article  Google Scholar 

  76. Tucker, Eric. 2010. Renorming labour law: Can we escape labour law’s recurring regulatory dilemmas? Industrial Law Journal 39(2): 99–138.

    Article  Google Scholar 

  77. Valverde, Marianna. 2009. Jurisdiction and scale: Using law’s technicalities as theoretical resources. Social & Legal Studies 18(2): 139–157.

    Article  Google Scholar 

  78. Vosko, Leah. 2010. Managing the margins: Gender, citizenship, and the international regulation of precarious employment. Oxford: Oxford University Press.

    Google Scholar 

  79. Weeks, Kathi. 2011. The problem with work: Feminism, marxism, antiwork politics and postwork imaginaries. Durham, London: Duke University Press.

    Book  Google Scholar 

  80. Williams, Fiona. 2011. Markets and migrants in the care economy. Soundings: A journal of politics and culture 47:1–8.

  81. Williams, Joan. 2010. Reshaping the work family debate: Why men and class matter. Cambridge: Harvard University Press.

    Google Scholar 

  82. Williams, Lucie. 2002. Beyond labour law’s parochialism: A re-envisioning of the discourse of redistribution. In Labor law in an era of globalization: Transformative practices and possibilities, ed. Joanne Conaghan, Richard Michael Fischl, and Karl Klare, 93–116. Oxford: Oxford University Press.

  83. Wimmer, Andreas, and Nina Glick Schiller. 2002. Methodological nationalism and beyond: Nation-state building, migration and the social sciences. Global Networks 2(4): 301–334.

    Article  Google Scholar 

  84. Wolkowitz, Carol. 2006. Bodies at work. London: Sage Publications.

    Google Scholar 

  85. Yeates, Nicola. 2005. Global care chains: A critical introduction. Global migration perspectives, no. 44. Geneva: Global Commission on International Migration.

  86. Zatz, Noah. 2011. The impossibility of work law. In The idea of labour law, ed. Guy Davidov, and Brian Langille, 234–255. Oxford: Oxford University Press.

    Chapter  Google Scholar 

  87. Zatz, Noah. 2008. Working at the boundaries of markets: Prison labor and the economic dimension of employment relationships. Vanderbilt Law Review 61: 857–958.

    Google Scholar 

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Acknowledgments

I would like to thank Donatella Alessandrini, Kate Bedford, Emily Grabham, and Kendra Strauss for their very helpful comments and conversations on this paper or the topic more generally, and the Leverhulme Trust for providing the support for my visiting professorship at Kent Law School that made these conversations possible.

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Fudge, J. Feminist Reflections on the Scope of Labour Law: Domestic Work, Social Reproduction, and Jurisdiction. Fem Leg Stud 22, 1–23 (2014). https://doi.org/10.1007/s10691-014-9256-2

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Keywords

  • Labour law
  • Care
  • Domestic work
  • Gender
  • Work
  • Social reproduction