What makes Labour Free? (And Why this Question Matters)

June 6, 2019 by CIRHR Communications

Judy Fudge developed the following piece out of the Sefton-Williams Memorial Lecture she delivered this March. It was originally published in Futures of Work, Issue 7. The text is posted with permission from Dr. Fudge.

‘Modern slavery’ is an umbrella term that focuses attention on commonalities across legal concepts such as forced labour, slavery, domestic servitude and human trafficking. As previous contributions to Futures of Work by Virginia Mantouvalou and Chris Pesterfield have discussed, the UK Modern Slavery Act 2015 – championed by former Home Secretary and current Prime Minister Theresa May – consolidated all the crimes falling under modern slavery into one statute, and imposed an obligation on large firms to disclose the efforts they have taken, if any, to rid their businesses and supply chains of modern slavery – what is commonly known as supply chain transparency legislation.

Between 2013 and 2018 the Coalition and two Conservative governments explicitly and repeatedly used the issue of modern slavery to justify changes in immigration law and labour standards enforcement. This timing coincided with both the lead up to and the aftermath of the Brexit referendum. In policy documents, legal documents, and debates the government indelibly linked categories such as modern slaves, illegal migrants, human traffickers, labour exploitation and labour market enforcement. These tropes circulated widely in popular and political discourse, and successive Conservative governments have configured them so as to justify policies that are hostile to irregular immigrants and against immigration more generally as a means of protecting both British labour standards and vulnerable migrant workers.

However, the attention on forced labour and modern slavery is not simply a preoccupation of anti-immigrant Conservative governments intent on scapegoating migrants for the social suffering caused by their own austerity policies and neo-Malthusian approaches to labour market regulation. In 2014, the International Labour Organization adopted the Forced Labour Protocol. Moreover, Target 8.7 of the United Nation’s 2015 Sustainable Development Goals is the immediate and effective eradication of forced labour, modern slavery and human trafficking.

How and why does the law categorise some forms of labour as free and others as unfree? Why the renewed attention internationally on forms of unfree labour? Instead of taking a conceptual, normative or empirical approach to these questions, my interest is discursive and political: what does the contemporary focus on modern slavery and forced labour reveal about how we understand the relationship between global capitalism and free labour?

Where equality and freedom meet

The focus on forms of unfree labour ignores the analytically prior question: what makes labour free? The classical political economists, Adam Smith, James Mills and Karl Marx and the founder of economic sociology, Max Weber, all grappled with this question because, when they were writing, the concept of ‘free’ wage labour had not yet come to epitomise freedom for working people.

Part of the answer to the question of what makes labour free has to do with how we understand freedom. Since the 1980s, freedom has come to be equated with free markets and free trade. Freedom means noninterference by the state. There has been a kind of neo-liberal flattening of a much more complex and robust concept.

Almost all normative political theories would agree that equality and freedom are two key dimensions by which we evaluate the justice of any social order. In the prevailing liberal conception of justice, equality and freedom are subject to what political theorist C.P. Macpherson identified as the ubiquity of the ‘trade off’. The idea is that freedom inevitably has to be traded off against equality.

In turn, this fuels the reigning narrative about labour law – that labour law’s goal is to redress the inequality between employees and employers while still ensuring that employers are free to contract and use their property. Equality as a value has come to be associated with employees while freedom is the value that employers are seen to prefer. Thus, in the conflict between equality and freedom, labour law’s goal is to protect employees from the employers’ freedom to contract. Talking about freedom is simply seen as a way of legitimatizing inequality; what workers need is protection.

Part of the problem is that we tend to understand these complex values in terms of simplistic binaries. There are at least three conceptions of freedom: negative, positive and republican. Negative freedom is non-interference with another, while positive freedom entails some kind of institutional support that enables individuals effectively to select a range of life options. This kind of positive freedom has been theorized by Amartya Sen in terms of capabilities. Republican freedom, by contrast, is the form of freedom that means that no one is dominating you; it is freedom from subordination.

If labour law’s goals are seen solely in terms of protection and inequality, this critical dimension of freedom – self-determination or self-government – is ignored. Self-determination or non-domination is also an important goal of labour law, as it is a critical dimension of freedom. Feminists are wary of attempts to substitute protection for self-determination. Non-domination is where equality and freedom meet; instead of being traded off against each other, equality and freedom as non-domination are mutual supports.

Control and consent

Figuring out what makes labour free is also in part a matter of context and contrast. In popular discourse, as well as in employment and labour law, freedom is what distinguishes a modern slave from an employee – the employee is free in this comparison – and a dependent employee from an independent entrepreneur – here the employee is the wage slave. Labour market institutions – unions, firms and labour regulations and their enforcement – shape who enjoys what freedoms as much as they do patterns of inequality and equality.

Social norms and discourses render these different distributions of the different forms of freedom so acceptable they are no longer even noticeable. We have, for example, come to take it for granted that we leave our civil freedoms outside the workplace. Our employer can tell us what we have to listen to at work, what we must wear, when we begin and end work, and when we can take time off. This control is not even considered a form of domination.

Law provides a particularly helpful lens for understanding the prevailing conception of freedom as it reflects underlying assumptions in neo-classical economics and liberal social contract theory about freedom as consent.

Although there is no legal definition of free labour, we can identify its characteristics from instances that the law considers to be unfree. International legal instruments that build upon and overlap with each provide definitions of the key forms of unfree labour – slavery, forced labour and human trafficking. Slavery is defined in the League of Nations 1926 Slavery Convention as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” The ILO adopted the Forced Labour Convention in 1930, which defines forced as “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily.”

In the late 1990s renewed attention was paid to forced labour and modern slavery, in part driven by the fall of the Soviet Union. The ILO identified the prohibition against forced labour as one of the four fundamental principles and rights at work in its 1998 Social Declaration.

In 2000 the United Nations adopted the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, which made it illegal to recruit, harbor or transport a person through means of coercion, force or deception for the purposes of exploitation. Instead of defining exploitation, the Protocol included a list of examples, such as slavery, forced labour and prostitution. New abolitionists such as Kevin Bales, who founded Free the Slaves, advocated bringing these different forms of exploitation together under the umbrella of modern slavery.

For the first decade, the focus of the anti-trafficking governance regime was on cross-border trafficking for sex exploitation. However, by 2010 transnational human rights activists and international organizations linked up with new abolitionists in order to refocus initiatives against human trafficking more on labour exploitation and less on sex, and to place greater emphasis on the structural causes of exploitation rather than individual perpetrators. Their explicit goal was to rethink trafficking as one form of contemporary slavery.

This campaign has been remarkably successful. UN organizations, human rights advocates, religious organizations, NGOS and other civil society groups, leading states and philanthrocapitalists, have embraced it. Eradicating modern slavery is a specific target of the UN’s sustainable development goals, and in 2016 the ILO launched Alliance 8.7, a global strategic partnership of different stakeholders committed to ending modern slavery.

Together with Walk Free, a charitable Foundation dedicated to ending modern slavery set up by an Australian mining magnate, in 2017 the ILO released the Global Slavery Index. It estimated that there were 40.3 modern slaves around the world in 2016. In 2018, it expanded its analysis beyond the mainly developing countries where the vast majority of the crimes are perpetrated, to examine the issue of modern slavery from the perspective of where the products of the crime are sold and consumed.

The 2018 Global Slavery Index found G20 countries collectively imported US$354 billion worth of the top five at-risk of slavery products annually (which are cotton, bricks, garments, cattle and sugar cane). This approach sees supply and labour chains as the conduits through which slavery has become a global problem.

At the United Nations General Assembly in September 2017, the UK’s Prime Minister Theresa May announced Her Call to Action to end Forced Labour, Modern Slavery and Human Trafficking. Now endorsed by over 60 states, the Call to Action sets out a common policy agenda about how to end modern slavery which includes making modern slavery a crime and working with business to ensure that slavery in supply chains is eradicated.

The UK and US governments also announced donations of $25 million dollars each to the Global Fund to End Modern Slavery, a private-public partnership whose goal is to “identify and promote business sector efforts to create market-based solutions to slavery” in order “to sustainably end modern slavery by making it economically unprofitable.” Indeed, this has now become the dominant approach at the international level to eradicating modern slavery.

The hidden abode of production

These international laws and multilateral initiatives provide a good picture of what leading international institutions and liberal nation states consider free labour to be. For them, free labour is characterized by the absence of coercion, force and deception in entering into, continuing in and leaving an employment or service relationship.

Over the past 80 years, ILO supervisory bodies have elaborated the definition of forced labour in response to the different ways in which workers are coerced to work, and in doing so they have provided guidance on the two key elements of the definition of forced labour: menace of penalty and freedom of choice. For example, a worker’s consent is irrelevant where there is evidence of deception about the nature of employment, and menace of penalty includes withholding wages.

It is also clear that the predominant approach to tackling modern slavery is a combination of criminal law against perpetrators and supply chain transparency regulation for businesses. The idea behind mandatory reporting is to enable the court of public opinion to rank how organizations respond to the issues and to permit investors and consumers to lead with their wallets. Since businesses, unlike governments, are not confined to national borders, the argument is that these laws can have extra territorial effect by creating incentives for businesses to eradicate slavery.

Although transparency legislation simply imposes obligations to report, other models impose more rigorous obligations, from auditing to due diligence – even though few impose liability on the lead firm for the wrongs of its subcontractors. The possibility that financialised capitalism which remains virtually unregulated may be creating conditions that directly undermine free labour is never seriously considered. In fact, unfree labour is considered an inhibition to, rather than a consequence, of surplus extraction.

The legal definition of what makes labour free – exchange relations where there is no coercion, force or deception – reflects a distinction originating in classical political economy. It also resonates with social contract theory – which assumes that free relations take a contractual form – and liberal understandings of self-ownership and self-sovereignty.

For liberal political economy, neo-classical economics, and contract law the voluntariness of the exchange is the distinctive feature of free labour and consent is the regulative ideal . The assumption is that the labour market is an arena of free exchange in which legally equal parties contract to their own mutual advantage. The law simply provides neutral rules of the game. Meanwhile the state’s role should be to ensure a ‘level playing field’ between market actors. Since slavery, which is the epitome of unfree labour, interferes with individual autonomy, it must be outlawed as a crime. Moreover, the claim is made that forced labour and slavery are bad for development.

Of course, as Adam Smith, Karl Marx and Max Weber pointed out, this description of free wage labour ignores how the legal regime – and I want to emphasize that all three of these authors saw the legal regime as constructing (and not simply reflecting) this inequality – renders this freedom purely formal for many workers.

During the industrial revolution, there was no choice but to do wage work, to go to the workhouse or to starve. In the Global North, the welfare state cushioned the process of commodification, but the spectre of a wageless life disciplines workers who increasingly must rely on workfare to subsist. In the Global South, workers construct precarious and informal livelihoods as they continue to hope for a truly developmental state.

Alleviating the economic compulsion that requires people to work would provide some measure of positive freedom. However, it would not address the other form of unfreedom that political economists and political theorists have identified – the subordination that resides in the hidden abode of production.

At the level of the exchange, the employer and worker contract as equals. But when it comes to the actual relationship, as Marx wrote, “he, who before was the money-owner, now strides in front as capitalist; the possessor of labour-power follows as his labourer. The one with an air of importance, smirking, intent on business; the other, timid and holding back, like one who is bringing his own hide to market and has nothing to expect but – a hiding.”

As every labour lawyer knows, at the heart of the employment relationship are notions of control, dependency and subordination and the duty for the employee to obey the employer’s orders is implied into every contract of employment. Employers exercise a great deal of control over working peoples’ lives.

It is the daily dullness of this subordination that makes self-employment so appealing to so many. Being one’s own boss is about self-determination. But the absence of a human manager may not guarantee self-government. Algorithms used by platforms in the gig economy clearly control workers. Weber explained how freedom of contract could increase, rather than reduce, authoritarian control at work.

Imagining alternatives: Exit or voice?

One widely advocated solution to the problem of labour’s lack of freedom is a universal basic or citizen’s income. The measure has been discussed in previous contributions to Futures of Work by Anton Jaeger and Daniel Zamoraand Lorena Lombardozzi and Harry Pitts, among others, While often associated with harbingers of the end of work, a universal basic income is also promoted by political theorists like Kathi Weeks, Andre Gorz and Guy Standing, all three of whom advocate a universal basic income as part of an anti-work politics.

Although quite diverse, each sees work as one of the most common and inescapable constraints on human freedom. For its advocates, a universal basic income would provide sufficient income for people to make a substantive choice not to work and to pursue other kinds of activities, and, as such, it would provide both positive freedom and freedom from domination.

But even a progressive universal basic income that was part of a broader utopian project to abolish work would not solve the problem of subordination at work. While the universal basic income promotes exit as the best way to guarantee free labour, it is important to recall that voice is an alternative way of challenging subordination.

Markets are unable to address the problem of subordination at work. Instead, democratic principles of governance are needed to give people voice at work. Voice is about exercising associational or collective power, and it involves democratic self-determination. Voice is what gives effect to the republican notion of freedom as non-domination at work.

Workers’ collective voice – whether it be through relatively anodyne forms of voice such as minority unionization or worker councils, or more effective forms such as broader based bargaining – is absolutely essential if labour is to be free. Freedom as non-domination means that people need voice to challenge authority. This kind of freedom is essential to equality and it is potentially – although only potentially – transformative. Perhaps that is why substantive freedom of association at work is so strongly resisted even in liberal democracies.

This conception of free labour as including freedom from subordination is profoundly different from the thin, market-oriented version of freedom that animates the campaigns against modern slavery. But, even a republican conception of freedom, which includes voice, does not address the problem that capitalism is an institutionalised social order that has penetrated every aspect of contemporary life. For workers to be truly free, we need an alternative imaginary, one that is not content simply to mediate capital’s power, but that can inspire us to work collectively and democratically in order to transform it.


Judy Fudge is Professor of Labour Studies at McMaster University

Image Credit: Scott Carpenter via Wikimedia Commons (CC BY-SA 4.0)