¹ Yeats, W. B., “The Second Coming,” in The Collected Poems of W. B. Yeats, ed. Finneran, Richard J. (New York: Palgrave Macmillan, 1989).Google Scholar The cited passage has famously been transformed by Chinua Achebe into a formative intervention of post-independence African literature: “Things fall apart.”

² In the first parts of the analysis I place emphasis on labour law as a body of rules and field of scholarship within the postwar North American context. I do so as a way of situating the ensuing critique, which rests on the normative belief that divergence between the rules-field understandings would have been far more desirable and productive than what otherwise occurred, especially had the field account embraced a wider and deeper perspective. In other words, there is nothing inherently problematic about scholarly constitution of a field in terms unique from its practitioners, particularly if it occurs as a way of contesting reactionary orthodoxy. I use the capitalized form, Labour Law, to connote the academic field and the pluralized form, labour laws, in reference to what are conventionally taken as the rules. But I concede that the distinction is not always self-evident, which one would expect in the messy production of knowledge, including academic knowledge, although there is much of importance in a positivist line of inquiry (e.g., What are these things they call “labour laws”? How do/did they come to pass?, etc.). The task herein is to problematize Labour Law as a field of study, not as a boundary-enforcing or canonical-setting exercise, but instead to show how scholarly adherents have come to define, know, and query “it” as an object of study.

³ See, e.g., Blackett, Adelle and Trebilcock, Anne, eds., Research Handbook on Transnational Labour Law (Cheltenham, UK: Edward Elgar, 2015);CrossRefGoogle Scholar Hepple, Bob, Labour Laws and Global Trade (Oxford, UK; Portland, Oregon: Hart, 2005).Google Scholar

⁴ While I have opted to use the terms “global South” and “global North” to align with the wider “South of the North” framing, this should not be read as a rejection of the concept of a “Third World” as a prescient way of framing inequality within the ongoing history of geopolitical analysis. For greater insight, see D’Souza, Radha, “Imperial Agendas, Global Solidarities, and Third World Socio-legal Studies: Methodological Reflections,” Osgoode Hall Law Journal 49 (2012);Google Scholar Randall, Vickey, “Using and Abusing the Concept of the Third World: Geopolitics and the Comparative Study of Development and Underdevelopment,” Third World Quarterly 4153, no. 25 (2004): 1.Google Scholar

⁵ This particular formulation stands indebted to Amar Bhatia’s incisive intervention, and he graciously read an earlier version of this article and provided thoughtful reflections. Bhatia, “The South of the North: Building on Critical Approaches to International Law with Lessons from the Fourth World,” Oregon Review of International Law 14 (2012): 131. See also Sujith Xavier et al., “Placing TWAIL Scholarship and Praxis,” Windsor Yearbook of Access to Justice 33, no. 3 (2016): vii.

⁶ In a thorough if now dated review of social science scholarship on the idea of belonging, political and social geographer Marco Antonsich draws an analytical distinction between personal and intimate feelings of belonging in a place, “place-belongingness,” and the surrounding social context, “politics of belonging,” arguing that both dimensions are necessary for a full understanding of territorial belonging. Antonsich, “Searching for Belonging—An Analytical Framework,” Geography Compass 4, no. 6 (2010): 644–59. See also Mee, Kathleen and Wright, Sarah, “Geographies of Belonging,” Environment and Planning A 41 (2009): 772–79.CrossRefGoogle Scholar I place great emphasis on the latter and concede that my analysis pays far less attention to the former, despite belonging’s crucial emotional or psycho-affective dimensions. And while conceptions of belonging can take on personal or individual-centred focus, I attend to group-centred (or centric) conceptions and the interconnected concept of Othering. For a forceful, multidimensional account of belonging in settler capitalist Canada see Coulthard, Glen Sean, Red Skin White Masks: Rejecting the Colonial Politics of Recognition (Minneapolis: University of Minnesota Press, 2014).CrossRefGoogle Scholar For the formative anti-colonial engagement, see Frantz Fanon, Black Skin, White Masks (New York: Grove, 1967).

⁷ Powell, John A. and Menendian, Stephen, “The Problem of Othering: Towards Inclusiveness and Belonging,” Othering & Belonging 1 (2016): 14–40, online: http://www.otheringandbelonging.org/the-problem-of-othering/.Google Scholar

⁸ In focusing on a particular articulation of Othering, racialization or the process through which perceived racial identities are ascribed to a group or situation, the aim is not to essentialize or elevate its significance above other forms. Racialization is enduring, and stubbornly so, but historically-situated/specific and thus far from fixed or even necessary. That said, the process has proven integral to the historical development of global capitalism, including through accordant understandings of superiority/inferiority, or racism. I have addressed this in the contemporary context of the regulation of labour: see Smith, Adrian A., “Racism and the Regulation of Migrant Labour,” in Research Handbook on Transnational Labour Law, ed. Blackett, Adelle and Trebilcock, Anne (Cheltenham, UK: Edward Elgar, 2015), 138–149 [“Racism”].CrossRefGoogle Scholar

⁹ See, e.g., Kaplan, William, ed., Belonging: The Meaning and Future of Canadian Citizenship (Montreal and Kingston: McGill-Queen’s, 1993).Google Scholar

¹⁰ Yuval-Davis, Nira, Kannabiran, Kalpana, and Vieten, Ulrike, “Situating Contemporary Politics of Belonging,” in The Situated Politics of Belonging, ed. Yuval-Davis, N., Kannabiran, K., and Vieten, U. (London, Thousand Oaks: SAGE, 2006), 7–8.Google Scholar See also Yuval-Davis, Nira, “Belonging and the Politics of Belonging,” Patterns of Prejudice 40, no. 3 (2006): 197–214.CrossRefGoogle Scholar I borrow the important framing from Yuval-Davis and her collaborators, but I refrain from adopting their third identified way in which the politics of belonging is situated, that of intersectionality. See Yuval-Davis, The Politics of Belonging—Intersectional Contestations (London, Thousand Oaks, New Delhi, Singapore: SAGE, 2011).Google Scholar

¹¹ See Langille, Brian, “Labour Law’s Back Pages,” in Boundaries and Frontiers of Labour Law, ed. Davidov, Guy and Langille, Brian (Oxford, Portland: Hart, 2006), 13–36.Google Scholar

¹² Klare, Karl, “The Horizons of Transformative Labour and Employment Law,” in Labour Law in an Era of Globalization: Transformative Practices and Possibilities, ed. Conaghan, Joanne, Fischl, Richard Michael, and Klare, Karl (New York: Oxford University Press, 2002), 29.Google Scholar

¹³ Hepple, 3.

¹⁴ Ibid.

¹⁵ A recent example of this occurred in the context of a municipality’s attempt to employ loitering by-laws to restrict the local movement of migrant workers. See Caton, Mary, “Leamington business owners ask council to curb uptown loitering,” The Windsor Star, 20 July 2017, online: http://windsorstar.com/news/local-news/leamington-business-owners-ask-council-to-curb-uptown-loitering.Google Scholar For other examples see Smith, Adrian A., “The Bunk House Rules: A Materialist Approach to Legal Consciousness in the Context of Migrant Workers’ Housing in Ontario,” Osgoode Hall Law Journal 52, no. 3 (2015): 863;Google Scholar Smith, Adrian A., “Racialized in Justice: The Legal and Extra-Legal Struggles of Migrant Agricultural Workers in Canada,” Windsor Yearbook of Access to Justice 31, no. 2 (2015): 15 [“Racialized”].CrossRefGoogle Scholar

¹⁶ See, e.g., Fudge, Judy, “Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers,” Comparative Labour Law and Policy Journal 34, no. 1 (2012): 96;Google Scholar Costello, Cathryn and Freedland, Mark, eds., Migrants at Work: Immigration and Vulnerability in Labour Law (Oxford: Oxford University Press, 2014);CrossRefGoogle Scholar Blackett, Adelle, Making Domestic Work Visible: The Case for Specific Regulation (Geneva: International Labour Office, 1998);Google Scholar Howe, Joanna and Owens, Rosemary, eds., Temporary Labour Migration in the Global Era: The Regulatory Challenges (Oxford; Portland, Oregon: Hart, 2016).Google Scholar

¹⁷ See Satzewich, Vic, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991).Google Scholar

¹⁸ Langille, 22.

¹⁹ Ibid.

²⁰ Ibid., 23, 22. On the historical development of the contract of employment in Ontario see Claire Mummé, “‘That Indispensable Figment of the Legal Mind’: The Contract of Employment at Common Law in Ontario, 1890–1979” (doctoral thesis, Osgoode Hall Law School, 2013).

²¹ Langille, 23.

²² Ibid.

²³ Arthurs, Harry W., “Labour Law as the Law of Economic Subordination and Resistance: A Thought Experiment,” Comparative Labor Law and Policy Journal 34, no. 3 (2013): 585–604 [“Economic Subordination”], see especially 592–596.Google Scholar

²⁴ Ibid., at 589.

²⁵ Arthurs, Harry W., “Labour Law after Labour,” Comparative Research in Law & Political Economy. Research Paper No. 15/2011, 2011, http://digitalcommons.osgoode.yorku.ca/clpe/53 [“Labour Law”], 22.Google Scholar

²⁶ Arthurs, Economic Subordination, 591. Employment law, which in principle offers the opportunity to “take up the slack,” cannot in practice keep up with the demands, according to Arthurs.

²⁷ Ibid., 596.

²⁸ Ibid., 596.

²⁹ Smith, Adrian A., “Legal Consciousness and Resistance in Caribbean Seasonal Agricultural Workers,” Canadian Journal of Law & Society 20, no. 2 (2005): 115 (citing Herbert Aptheker’s dictum, “[r]esistance is the core of history, not acquiescence”).CrossRefGoogle Scholar

³⁰ This implies the existence of an individual-collective binary distinction. Arthurs is of course not alone in drawing so sharp a distinction, nor in identifying individualism as a defining feature of neoliberalism. But this sort of framing lacks the nuance necessary to account for the continuing, if shifting, role of collectivities in social life. While it is evident that neoliberalism produces certain crucial individualizing trends, collectivities remain an indispensable feature of our social world. The neoliberal production of national subjects is such an example of an individualizing trend which occurs within a pre-existent collectivist context, that of national states. While the point here is to cast doubt on the interpretative framing of the empirical data, and not to launch into a full articulation of the claim, we would do ourselves an analytical favour by more readily appreciating that social life is always-already collective and interconnected. In this respect, we might consider more carefully how neoliberalism impacts collective action, not simply by fostering individual allegiances and action but also by producing fragmented and reactionary forms of collectivity.

³¹ See Harvey, David, A Brief History of Neoliberalism (Oxford: Oxford University Press, 2005).Google Scholar While Harvey sees neoliberalism as a theory, it is apparent that its practical existence forms a pivotal aspect of critical understandings of contemporary social life. The theory–actually existing neoliberalism distinction proves disruptive to efforts to appreciate shifts and challenges of everyday life in the current moment.

³² See Knox, Robert, “Law, Neoliberalism, and the Constitution of Political Subjectivity: The Case of Organized Labour,” in Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project, ed. Brabazon, Honor (Abingdon, Oxforshire: Routledge, 2016).Google Scholar

³³ Ness, Immanuel, Southern Insurgency: The Coming of the Global Working Class (London: Pluto, 2016)Google Scholar (contending that “the expansion of neoliberal capitalism has radically reshaped the composition of the industrial working class on a global level” (46) and tracing contemporary militant struggles of the industrial working class of the global South); Featherstone, David, Solidarity: Hidden Histories and Geographies of Internationalism (London: Zed Books, 2012)Google Scholar (discussing the global “hidden histories” of internationalism from below). For a discussion, see Smith, Racism, supra note 8; Smith, Racialized, supra note 15. For a forceful account of Canadian state efforts to undermine transnational community organizing, see Austin, David, Fear of a Black Nation: Race, Sex, and Security in Sixties Montreal (Toronto: Between the Lines, 2013).Google Scholar

³⁴ See, e.g., Smith, Andrea, “Queer Theory and Native Studies: The Heteronormativity of Settler Colonialism,” GLQ: A Journal of Gay and Lesbian Studies 16 (2010): 41;CrossRefGoogle Scholar Blackett, Adelle, “Decolonizing Labour Law: A Few Comments,” in Labour Law and Social Progress: Holding the Line or Shifting the Boundaries?, ed. Blanpain, Roger, Hendrickx, Frank, and du Toi, D’Arcy (Alphen aan den Rijn, The Netherlands: Wolters Kluwer, 2016), 89.Google Scholar

³⁵ Smith, Racism, 144.

³⁶ Ness, 2. See also Silver, Beverly J., Forces of Labour: Workers’ Movements and Globalization Since 1870 (Cambridge, New York: Cambridge University Press, 2003).CrossRefGoogle Scholar

³⁷ A more difficult matter to assess is the extent to which “critical” field scholarship reinforced the problematic construction of Labour Law. I cannot properly address the matter here, but it is worth raising some preliminary, if provisional, points. Over time, critical scholarly interventions helped to ground down certain of the foundational assumptions of Labour Law. Notwithstanding their salience, however, these interventions tended to be directed in ways that sought to reconfigure or stretch the constituting narrative while staying within its confines in notable ways. For instance, certain accounts viewed the narrow construction of “labour” and “worker” as troubling but not insurmountable. Other accounts failed to develop a robust enough analysis of the impact of racialization or other forms of marginalization and exclusion such as unemployment and social welfare. This might lead one to Langille’s argument that Labour Law scholars, irrespective of ideological inclinations or “critical” commitments, tacitly accepted the constituting narrative, a claim with which I generally concur. But yet there is a part of that claim that proves more difficult to assess: whether certain critics of the constituting narrative worked “outside” of Labour Law, in other fields and through alternative frameworks, to pursue their interests in the regulation of capitalist labour and work—an assessment which is further complicated by whether critical interveners adopted different strategy and tactics when pursuing motives on expressly policy reform grounds than more expressly scholarly-epistemic ones (if such an analytical distinction can be drawn). The very idea of working “inside” or “outside” of the field, a distinction implied by Langille, is contested. What appears more certain is that amongst those who self-identified as field scholars or critical field scholars, the constituting narrative’s outright rejection seldom appeared on offer. In maintaining a certain sympathy with or nostalgia for the three legal regimes of employment framing and wider Labour Law project, critical and orthodox interventions refrained from reconstituting the constituting narrative in expressly “radical” terms, that is as a marked departure from customary understanding and practice.

³⁸ Smith, Racialized.

³⁹ Wimmer, Andreas and Schiller, Nina Glick, “Methodological Nationalism and Beyond: Nation-State Building, Migration and the Social Sciences,” Global Networks 2 (2002): 301–34;CrossRefGoogle Scholar Wimmer, Andreas and Schiller, Nina Glick, “Methodological Nationalism, the Social Sciences, and the Study of Migration: An Essay in Historical Epistemology,” International Migration Review 37, no. 3 (2003): 576–610.CrossRefGoogle Scholar But see Chernilo, Daniel, “The Critique of Methodological Nationalism: Theory and History,” Thesis Eleven 106 (2011): 98.CrossRefGoogle Scholar

⁴⁰ Smith, Adrian A., “Migration, Development and Security within Racialized Global Capitalism: Refusing the Balance Game,” Third World Quarterly 37, no. 11 (2016): 219.CrossRefGoogle Scholar

⁴¹ See, for example, the works of scholars like Adelle Blackett and Alvaro Santos. Blackett, Decolonizing, supra note 34.

⁴² de Sousa Santos, Boaventura, Another Knowledge Is Possible: Beyond Northern Epistemologies (London, New York: Verso, 2007);Google Scholar Darian-Smith, Eve, Laws and Societies in Global Contexts: Contemporary Approaches (Cambridge, New York: Cambridge University Press, 2013).Google Scholar On TWAIL see, e.g., Chimni, B. S., “Third World Approaches to International Law: Manifesto,” International Community Law Review 8 (2006): 3–27;CrossRefGoogle Scholar Anghie, Antony, Imperialism, Sovereignty and the Making of International Law (Cambridge, UK: Cambridge University Press, 2005);CrossRefGoogle Scholar Okafor, Obiora Chinedu, “Critical Third World Approaches to International Law (TWAIL): Theory, Methodology, or Both?,” International Community Law Review 10 (2008): 371–78; Xavier et al., supra note 5.CrossRefGoogle Scholar

⁴³ Darian-Smith, 5.

⁴⁴ Comaroff, Jean and Comaroff, John, “Theory from the South: A Rejoinder,” Cultural Anthropology, 2012, https://culanth.org/fieldsights/273-theory-from-the-south-a-rejoinder. One need not support the wider argument to appreciate the insight that South and North “bleed” into each other.Google Scholar

⁴⁵ D’Souza, supra note 4.

⁴⁶ Ibid., 441.

⁴⁷ On this, see Smith, Adrian A., “A Political Economy of Sociolegality in Settler Colonial Canada,” in Change and Continuity: Canadian Political Economy in the New Millennium, ed. Thomas, Mark, Vosko, Leah F., Fanelli, Carlo, and Lyubchenko, Olena (Montreal and Kingston: McGill-Queen’s University Press, forthcoming).Google Scholar

⁴⁸ See Mills, Charles, The Racial Contract (New York: Cornell University, 1997), 18.Google Scholar

⁴⁹ Crowley, John, “The Politics of Belonging: Some Theoretical Considerations,” in The Politics of Belonging: Migrants and Minorities in Contemporary Europe, ed. Geddes, Andrew and Favell, Adrian (Aldershot: Ashgate, 1999), 30.Google Scholar

⁵⁰ See, e.g., Smith, Sociolegality, supra note 47; Gordon, Todd, Imperialist Canada (Winnipeg: Arbeiter Ring, 2010).Google Scholar