Revue Européenne du Droit
Labour, Love and (De)coloniality in the employment relationship
Issue #4
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Issue #4

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Flavia Souza Maximo Pereira

Revue européenne du droit, Summer 2022, n°4

Quando eu morder a palavra, por favor, não me apressem, quero mascar, rasgar entre os dentes, a pele, os ossos, o tutano do verbo, para assim versejar o âmago das coisas.  

Conceição Evaristo

Labour and Love. For me this is an intriguing combination. Is this feeling allowed when we perform labour? When I think about love, it is inevitable to think about the freedom to choose, to feel, to think, to breathe in these suffocating times. This freedom is what makes us human. 

In theory, this freedom should be guaranteed by Labour Law, which revolutionized in modernity the concept of freedom of choice. Labour Law made the asymmetry in human liberty intelligible. It underlined how this asymmetry manifested itself in the concreteness of the flesh and how it should be compensated by the legal construction of the employment relationship, so that working bodies could be free, so that working bodies could be humans.

In contrast with the slave and servitude models, the heart of Labour Law is constituted by this freedom in the employment relationship. The employee sells his labour force – not his body – under the directive power of the employer, in a paradoxical combination of free and subordinated labour. But how free is this working body? Is it possible to separate labour force from the working body? Is there freedom to choose work, to love labour?

We know that Labour Law, in legal relations, is one of the greatest accomplishments of modernity. The employment relationship itself represents a subaltern achievement. It is the result of critical knowledge developed to resist the oppression experienced by the working class. None of this takes place in a space of pure imagination, but of violence experienced as a collectivity. 

 And yet this achievement is constantly threatened with austerity policies, centered on social fear, blaming the working class for its own poverty. With these constructed lies, the employment relationship is seen an obstacle to economic growth, to entrepreneurship and job creation. Consequently, a state of exception in Labour law is established. These austerity policies can only result in undemocratic measures that strengthen intersectional inequalities in the world of labour.

Therefore, the employment relationship is a counter–hegemonic legal weapon in political and epistemic terms. And that is why we still fight for Labour Law. It is why we still work to defend its epistemology. Because the simple destruction of protected employment, as it has been happening in most jurisdictions, is nothing more than a further deepening of coloniality, racism, sexism and LGBTphobia. These are the bodies that suffer strongly and firstly the effects of precariousness at work. And that is also why when we criticize Labour Law here, pointing out the legal coloniality of the employment relationship, we are also defending it. With affection. With love. Despite all its contradictions.  

Such contradictions are constantly perplexing me. Perplexity, according to Priti Ramamurthy, is the site of convergence of ‘multiple ideologies that constitute subjects – cultural practice, temporalities and place’. This perplexity makes me question my affection for Labour Law. This perplexity makes me wonder: from which epistemic place were the main categories of Labour Law created? How are the core categories of Labour Law translated into different geopolitical contexts? Who is the epistemic subject of Labour Law? What are the relations between the specificities of each worker’s body and its legal protection in Labour Law? 

 Perplexity is the simultaneity of joy and pains that constitute us. That is how I feel towards Labour Law. Is this love? In order to love someone, it is necessary to undress ourselves. To reveal also what we do not want to show. To reveal our ugly parts. The ones which we insist on hiding even from ourselves. You love someone when you can get into the core of their being. Knowing their innermost secrets. Despite all these contradictions. 

But Labour Law insists on keeping its epistemic secrets. Its epistemic subject appears to us devoid of race, gender, sexuality, language, or location in any relation of power. To reveal itself, Labour Law must show its location in terms of geopolitics and body–politics of knowledge. This consists of the recognition of its economic, social, epistemic, and ontological position. As Sumi Madhok put it, the legal production of situated knowledge must consider ‘from where you are looking and what/whom you are seeing’.

 To love Labour Law, it is necessary to understand why its epistemic body remains so distant from the reality of the labouring body. I need to understand why Labour Law does not reach the brown street vendor, or the black domestic worker who cleans white houses; why it does not speak the language of the waste picker in the Global South, or the transexual who works as a prostitute. Most of those who feel the deepest exploitations of work in their bodies have never experienced the protection of Labour Law. They have never been in an employment relationship.  In the eyes of the Labour Law categories all this is ‘non-typical’ work. However, ‘typical’ wage work, regulated under the standard employment relationship, has never expressed, and still does not express, the extent of productive relations, especially in the Global South.

How to love and to fight for something unknown? How to love someone who has no color, no identity, no desire? Is this fracture between Labour Law’s epistemology and the experience of workers accidental, or is it a deliberate project? 

Who loves must tell the truth. So, listen to me. There is a legal coloniality in Labour Law. Labour Law is also centered on the subjection of bodies, under the varnish of legal subordination, which has always sustained the coloniality of power. 

Among the central concepts used by decolonial studies, the coloniality of power demonstrates that colonial relations in economy, politics, society, and epistemology did not end with the formal destruction of colonization. Coloniality allows us to understand the continuity of colonial domination forms beyond colonization. 

According to Quijano, modernity was characterized by a world power pattern which controlled various forms of social existence. It was a structural power complex, characterized by domination, exploitation, and conflict in the space of labour, of collective authority, of sex and, finally, that of knowledge production. 

This modern power pattern imposed, as a way of labour control, the racial capitalism system, to set a difference between the colonized and the colonizer; the Nation–State, as a central form of collective authority; the bourgeois white family, as an institution of sex control; and, finally, the Eurocentrism, as the hegemonic form of knowledge production. 

Eurocentrism doesn’t refer to all cognitive history throughout Western Europe, but to a specific form of rationality that became worldwide hegemonic and colonized all others and their respective concrete knowledges, both in Europe and the rest of the world.

The decolonial thinking proposes a project of detachment from Eurocentric knowledge. It is not a simple negation of all its categories in yet another perspective of the totality of knowledge. Far from this, decolonial thinking wants to depart from the norm of rationality–modernity–coloniality. Ultimately, decoloniality of knowledge seeks to create strategies to restore ‘all power not constituted in free decision of free people, [as] [it] is the instrumentalization of reason by the colonial power, in the first place, that produced distorted knowledge paradigms and failure in liberating promises of modernity’. 

As we discuss democratizing workplaces, let us remember that more than two billion workers perform activities that are not protected by formal employment relationships at all.  61 percent of the world’s workers are engaged in informal relations. Moreover, income inequality between workers from the Global South and North has increased over the past decades. Therefore, democratizing work relations necessarily involves decolonizing Labour Law’s knowledge production.

We know that decolonizing Labour Law’s epistemology doesn’t mean claiming subaltern practices as superior to Eurocentric knowledge. It involves traveling between worlds and being aware of the journey within oneself, with no conciliatory rush. Decolonizing is knowing how to deal with plural epistemologies, without hierarchy. It means confronting different normative life-worlds, knowing that they are going to collide and interact. It is from these normative clashes that contact zones will be created towards a cosmopolitan reason.

Because decolonizing is not diversifying. It’s not moving on the surface. It is theorizing in the epistemic bowels. Decolonizing requires asking different questions, with a genuine interest in theory produced in the Global South. It involves giving up places of academic leadership, recognizing privileges of class, race, gender, and nationality. It includes naming the epistemic basis from which one speaks. It requires letting go of non–performative claims of diversity. It involves refusing theoretical partnerships with those who are not engaged in social justice practices in the Global South and the Global North. It requires effort and will to change the epistemic transit of knowledge production. It takes courage to take risks. To change the flows of the social division of scientific work and the very meaning of that work. 

Decolonizing Labour Law is a difficult and painful wager because it involves letting go of categories that captivated us and brought us here. If we are here, it is because our affection has brought us to the territory of Labour Law.

However, who loves must tell the truth. So, listen to me. The concrete subjection of bodies that is afforded by the legal coloniality in Labour Law must be denounced. Through legal subordination, Labour Law pretends that freedom for some of the labouring bodies exists in capitalism. And this also means that this concrete subjection is more violent for some bodies than for others in this modern/colonial system.

As Walter Mignolo emphasizes, in the 18th century, European secular philosophers celebrated the abandonment of theology and the advancement in direction of the rational scientific world in modernity. However, this ‘new’ scientific rationality was a somewhat totalitarian model because it denied the character of science to all forms of knowledge that were not guided by its epistemic Eurocentric principles of ‘universality’, ‘objectivity’ and ‘impartiality’. Unlike Eurocentric knowledge, forms of scientific production created by colonized people were deemed naive, irrational, and uncivilized. Notwithstanding claiming that its scientific production was universal, Eurocentrism was also located in power relations. And its knowledge production was geared towards itself, maintaining modern capitalist racial-sexual division of labor, including the scientific one.

Therefore, according to Mignolo, the scientific revolution, as well as the Enlightenment, despite its immense contributions, can be considered as a species of a ‘homemade revolution’, because there is a greater paradigmatic continuity than a rupture: a change within the same white, male Christian, and Western tradition, which continues rejecting other non–European forms of knowledge.

Despite being established in colonization, Eurocentrism is still the reference of world’s knowledge production; hence, the term coloniality of knowledge. Labor Law’s epistemology, its foundations, and key categories are suffused by this coloniality. 

In this Eurocentric context, the idea of the modern labour relations differentiation arises. Free and subordinated labour appears to establish a counterpoint to bury pre–capital forms of work previously experienced, that is, slavery and servitude. The aporia of the free and subordinated labour is also exalted as a form of resistance to the idea of pure autonomy of will, embodied in Civil Law: Labour Law was able to recognize the factual asymmetry among subjects, granting legal protection to the employee. Hence, another ideology was forged: the universalization of the capitalist system, with the normative regulation centered on free and subordinated labour. 

Latin American Labour Law imported this Eurocentric theory, reproducing the time parallel of slavery and servitude, to exalt the employment relationship as a revolution of freedom in modernity for all workers, for all humans, because all should have the right to choose, to feel, to think, to breathe and to love.

However, in Latin America, the forms of labour control did not emerge from this historical sequence. None of them were a mere extension of old pre–capitalist forms. They were not incompatible with capitalism. Servitude, slavery, and free labour were exercised together in a capitalist world–system. And they were combined with the phenotypical idea of ​​race, associated with the color of the skin, and with gender. This was done with the purpose of granting legitimacy to the relations of domination between colonizer and colonized, naturalizing inferior functions in the social division of labour, and classifying people into human and anti–human. The latter had no right to choose, to feel, to think, to breathe or to love, because they were just flesh.

The ‘indigenous’ were confined to servitude, ‘blacks’ were enslaved; European white women were imprisoned in reproductive work; ‘black’ and ‘indigenous’ women were sexually objectified, raped and exploited in domestic enslavement; ‘black’ women were mortified in rural slavery and in mining. 

Only white European men could perform free labour. This means that in the colonization of Latin America there was an exclusive association of male whiteness with free and paid–for labour. They were the standard for what meant being human, and this remains the case until today.

The free and subordinated labour, which is at the heart of Labour Law protection, is a legal construction based on a single type of worker, the only one considered to be human and deserving of the illusion of freedom of choice created by legal subordination. 

Who loves tells the truth. So, listen to me. There is a legal coloniality in Labour Law. The employment relationship presents itself through a fictitious neutrality that equalizes inequalities. And even today it is this Eurocentric discourse created by and for the white male worker that defines who the epistemic subject in Labour Law is. This naturalizes and legitimizes the sexual–racial division of Labour in the world and in Latin America, through Labour Law itself.  

The Labour norm has colour, it has an origin and it is gendered. The Labour Law epistemology is constituted from an anti–black, anti–indigenous and anti–feminine foundation created in modernity. We can affirm, as a result of the reproduction of this Eurocentric discourse of legal subordination, without the proper decolonial translation, that the connection between Labour theory and its application in the Global South is radically fractured.

This is precisely why the mere legal absorption in the employment relationship is insufficient to secure the detachment from the condition of subalternity. It is an extremely complex issue, involving the pluralization of the epistemological fundaments of Labour Law and the epistemic subject in Labour Law, about silent ontological Labour, geopolitics and the body–politics of knowledge. 

And this cannot be reduced to the binary modern discourse of formal and informal work, in the exclusive quest for protected employment. 

An example comes from Law 150/15 in Brazil, which recognizes all employment relationship rights for domestic workers. It was an immense achievement carried out by the domestic workers themselves, which had no recognized union representation prior to this law. However, the recognition of legal subordination did not overcome colonial inequalities. 

Firstly, the informality in domestic work in Brazil did not decrease after Law 150/15. Nowadays, only a third of domestic workers have a formal contract. More than 90 percent of domestic workers in Brazil are women and 63 percent are black women. When these workers access the employment relationship, this does not prevent them from being brutally discriminated, being treated as enslaved people, using separate toilets, dishes, and cutlery in the house so that they do not mix in their white employers’ spaces. About 2 out of 10 domestic employees in Brazil work longer than the limits established in Law 150/2015, which allows working hours of up to 44 hours per week or 8 hours per day. Colonial subalternity is not overcome by the protection provided by legal subordination.

Nevertheless, most workers in the Global South, especially those ‘non–white’, still aim to achieve legal subordination as a privileged place of subjection in capitalism. Because currently they are subaltern flesh, non–human flesh, with no right to choose, feel, think, breathe or love. In Africa, 85.8 per cent of employment is informal. The proportion is 68.2 per cent in Asia and the Pacific, 68.6 per cent in the Arab States, 40.0 per cent in the Americas and 25.1 per cent in Europe and Central Asia. About 93 per cent of the world’s informal employment is in emerging and developing countries.

The task of making coloniality in Labour Law apparent is not an easy one, as we do not know what the limit of radical critique is. Nonetheless, it is not enough to denounce the complicity of Labour Law’s modern categories with the logic of coloniality. Because decolonial thinking, as love, due to its radical nature, involves practical acts. ‘Love is an action, never simply a feeling, which involves assuming accountability and responsibility’. Decolonizing is a process which requires action. 

We must act. We must take epistemic responsibility for our knowledge production in Labour Law.  Therefore, it is crucial to decolonize its epistemic subject, its modern concept of time and value, based on merely mercantile criteria. We must shift its productive labour centrality, with the demystification of the idea that only those who perform productive labour should be entitled to a minimum income. We must apply the decolonial method in Labour legal education, which involves a disobedient knowledge–praxis; expand the concept of work environment, which goes beyond the employment relationship and the world of work but must be in the scope of Labour Law. We should critically reappropriate techniques of data gathering, of digital platforms and of bio–surveillance at work, and set up feminist intersectional strikes. 

This is my research. This is my work. Which is part of me. My body. My subjectivity. My affection. Is this love? Labor and Love. For me this is an intriguing combination. Is this feeling allowed when I am performing my labor? Because to have the right to love, to be considered as a worker, I have, firstly, to be considered human.

Ain’t I a human? 

I am considered as a white wealthy woman from the Global South. The first part of this sentence makes me be considered as a human, who has the right to love. And the Brazilian society makes me think that I am worthy to be loved. These privileges made me a young Professor. I had the freedom to choose my work.

I work at a University in a city called ‘Ouro Preto’. This means black gold. This refers to the value of black flesh in Brazilian colonization, comparable with gold.  Every day, I walk by this historical city, build on black labour, to enter a classroom full of white people. This racial gentrification is reflected in an epistemic racism on my own academic work: while people considered to be white – like me – produce Labour Law theory, it is expected that the black periphery – especially from black women – would simply provide case studies: they are our research ‘object’, with no right to choose, to feel, to think, to breathe or to love. 

The colonial legacy of dehumanization of black women at work continues in these pandemic times at my University. They are forced to perform precarious work activities. They are not Professors; they are not researchers. They are not lawyers; they do not exist in the Law doctrine. They are not most of my students, despite being most of the Brazilian population. The ones who were able to be my students are being excluded again. Because they do not have access to the internet, they cannot study at home, they do not have space nor time. They must work, with no right to choose, to feel, to think, to breathe or to love. 

Because everything else is a priority at the expense of herself, she does not have the privilege of being taken care of, to love herself, and the Brazilian society makes her think that she is not worthy of being loved, because she is a black poor woman from the Global South, not a human. This is her ontological labour.

Ain’t she a human? 

I am considered a white wealthy woman from the Global South. The second part of this sentence makes me not a complete human. In this pandemic reality, I – and all my fellow female researchers – worked more, better, without the right to disconnection, but I am less recognized than my male white colleagues. Because I am a woman from the Global South, not a human. This is my ontological labour.

In this pandemic reality, I – along with all my fellow female researchers – am exhausted from performing reproductive labour. This makes me feel far from love; it makes me feel angry at myself for being a professor of Labour Law. Because I cannot stop thinking about its epistemic insufficiencies regarding the concepts of time, of value, of environment, of teaching, of learning, that of being human.

Who loves tells the truth. So, listen to me. When I am criticizing Labour Law here, I am also defending it, with affection and love, despite all its contradictions. Because what I want for Labour Law – and for us – is freedom, the right to choose, to feel, to think, to breathe in these suffocating times; the right to love what we do.

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APA

Flavia Souza Maximo Pereira, Labour, Love and (De)coloniality in the employment relationship, Aug 2022, 116.

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