Servitude and Forced Labour in the 21st Century: The Human Rights of Domestic Workers

Organisations and scholars have recently drawn attention towhat they call a modern form of slavery, ‘domestic slavery’.Domestic workers in Europe and elsewhere live and work in appallingconditions and are vulnerable to abuse. This article describesthe problem, presents the relevant legal instruments and analysesa decision of the European Court of Human Rights, Siliadin vFrance, where France was found in breach of the prohibitionof slavery, servitude, forced and compulsory labour under theEuropean Convention on Human Rights. The paper examines thegrowing interaction between international labour law and internationalhuman rights law. It argues that the decision in Siliadin andits legal implications constitute a positive first step towardsaddressing the problem of the coercion and vulnerability ofmigrant domestic workers.     

Beyond the Gaze and Well Beyond Wolfenden: The Practices and Rationalities of Regulating and Policing Sex Work in the Digital Age

Drawing on the largest study of the United Kingdom online market in sexual labour to date, this article examines the legal and regulatory consequences as aspects of sex work increasingly take place within an online environment. Our research shows that while governmental policy has not kept abreast of these changes, the application of current laws (which have, since the 1950s, focused on public nuisance and, more recently, trafficking and modern slavery) are pernicious to sex workers and unsuited to recognizing and responding to the abuses and exploitation in online markets in sexual labour. These injustices are likely to be exacerbated if policies and policing do not better align with the realities of these markets in the twenty‐first century. This demands a more nuanced regulatory approach which recognizes that people may engage in sex work of their own volition, but which also addresses conditions of labour and criminal exploitation.     

International Law Book Facility Officially Launched

There has been growing international consensus on issues related to child labour – evident in various declarations, platforms, conventions, programmes of action etc. Child labour is the economic exploitation of children, or performance of any work that is likely to be hazardous or to interfere with the child’s health or physical, mental, spiritual, moral or social development. Poverty is the principal cause of child labour. Mostly the children work to support their families and also for their own survival. Paradoxically, however, child labour further aggravates the poverty syndrome as it usually deprives the children of education and opportunity to acquire skills for developing earning potentials. Other causes of child labour include family indebtedness, the lack or poor quality of schooling or non‐formal education, breakdown of extended family, uneducated parents, local cultural setting, and consumerism. It goes beyond economic exploitation or hazardous employment to include forced labour, trafficking, sexual exploitation and the use of children for the production and trafficking of illegal drugs. This article will ponder the socio‐legal situation of child labour and the large number of legislative enactments regarding labour in India, as well as their realities on the ground.     

It Ain't Necessarily So: A Legal Realist Perspective on the Law of Agency Work

Analysis of UK employment and labour law is often characterised by a curious dissonance. The overarching narrative mandates that labour law is a countervailing force to the inequality of bargaining power, embedded with values and assumptions concerning the nature of employment relations and the role of labour law. And yet, labour law jurisprudence tends to treat with respect, and seeks to decipher, abstract statutory concepts and tests derived from judicial pronouncements as if they were, indeed, a ‘brooding omnipresence in the sky’. This paper seeks to bridge that gap, by offering a legal realist account of the legal doctrine that governs the employment of agency workers, focusing on the ‘necessity’ and ‘sham’ tests. It assesses the legitimacy of importing legal tests from one (commercial) context to another (employment) context; questions the courts’ protestations that their use is mandated by precedent; and outlines the real implications for the status and rights of agency workers in the UK.     

Labour Law in a Service World

Drawing on the genealogy of the theoretical thought about services in economic and geographical economic literature, I argue in this article that in today's Service World it is highly important to develop an integrated approach that sees both consumption and production as impacting work relationships within legal thought. The current structure of labour law, which is based on the Fordist model of employment, is centred mainly on the production side, thus creating an incongruity between labour law and services. I propose thinking about work relations through a new framework –‘the nexus of service work’– that incorporates consumerism into the legal thought of work relationships, detaching it from the Fordist model of employment to achieve a more attuned approach to today's Service World.     

日本法上的劳动者人格保护—以劳动者健康隐私为中心

劳动者人格保护是现代劳动法上的重要内容。从以恢复劳动者之对等人格的集体劳动法律发展伊始,劳动者如何获得法律上"人"之对待,是促使劳动法发展演进的动力来源之一。我国劳动法上的劳动者人格研究甚少,基本停滞于"劳动者尊严"的保护原则宣誓上,其中,劳动者的健康隐私,在近年社会运动过程中获得了反歧视法上的保护。然而,无论是何种劳动者隐私,均属于劳动者人格权的范围,应当从劳动者人格权保护上予以正视。以日本劳动者人格保护中的健康隐私保护为例,其在实体法和判例法上的经验,可为我国劳动者人格保护问题的研究深入提供借鉴。     

Opportunistic termination of employment contracts and legal protection against dismissal in Germany and the USA

When analysing labour law most lawyers tend to focus on the protection of existing employment relations and neglect the feedback on ex ante incentives, whereas most economists focus on the incentives to create new jobs without knowing the regulations and relevant court decisions in detail. This paper starts with a simple model that discusses some potential ex post and ex ante effects of protection against dismissal and reconsiders the question of rigidity and flexibility with respect to German and US labour law. Special attention is paid to investments in specific human capital. It is shown that the legal protection against dismissal in Germany is in general characterised by relatively high expected dismissal costs with a low variance, although some court decisions have increased uncertainty for the parties to the employment contract. In the USA legal protection against dismissal is in general characterised by relatively low expected dismissal costs with a high variance, i.e. a high degree of uncertainty. This corresponds to the typical differences in employment relations between Germany and the USA with respect to external mobility, internal flexibility, capital intensity, labour productivity and long-term unemployment.     

关于我国物权法体系结构的思考

法律的体系结构问题是一个按一定逻辑联系将法律规范加以排列组合的问题。各国民法典 (包括其物权编 )体系结构上的差异 ,原于体系设计者选择的逻辑标准不同。法国法系国家在设计其民法典 (包括其物权编 )的体系结构时 ,更注重调整对象标准 ;而德国法系国家在设计其民法典 (包括其物权编 )的体系结构时 ,则更倾向于法权形式标准。本文作者主张以调整对象为标准来分配物权法与债法的内容 ,将作用于商品交换领域的抵押、质押、留置及让与担保等担保制度纳入债法规定 ,而不照搬德国法系国家的作法纳入物权法规定。对物权法内部的体系结构 ,本文作者主张除总则外 ,分所有权、用益物权、相邻权、占有与登记四个组成部分 ,以分别调整物的归属关系、物的用益关系、不动产相邻关系及无本权的动产占有人、不动产物权登记名义人与物之本权人之间的关系。本文作者认为 ,这一体系结构有利于明确物权法内各制度各自作用的社会经济生活领域 ,张扬它们各自不同的目的和功能 ,实现它们各自不同的价值。     

Slavery's Enduring Legacy

Abstract

Using data on post-Greggexecutions and death sentences, we explore the previously observed, but not well understood, relationship between slavery and the death penalty. We classify modern states into categories focused on their jurisdictional law and practice of slavery circa 1860. Our analyses reveal that the relationship between slavery and modern executions is stronger even than previously recognized, with 90.6% of post-Greggexecutions occurring in states that supported the practice of slavery, whether or not they were in the Confederacy or inside the traditional boundaries of the South. We conclude that capital punishment is one of the enduring legacies of American slavery.     

平台用工劳动权益保护的立法进路

我国互联网平台工人数量多达数千万,且增长迅速。平台工人面临身份不明确、工作时间长、收入不稳定、职业伤害保障缺失、算法运行不合理等突出问题。由于平台用工的特殊性,现有劳动法及其司法实践难以为平台工人提供有效保护。近年来,越来越多的国家,包括美国、法国、意大利等对平台工人进行了专门立法。我国有必要出台平台工人权益保护专门立法。平台工人权益保护立法的基本思路是确保符合"劳动者"标准的工人得到劳动法保护,并为一般平台工人提供基本劳动权益保障。立法应通过劳动关系举证责任转移规则,使平台工人身份得到正确归类。平台工人的基本权益内容应根据所有工人应享有的基本权益、平台用工的灵活性以及平台主要依靠算法运行的特点而设计,应赋予平台工人平等就业、职业安全卫生、工资、工时、加入工会和集体协商等方面的权利,以及与算法相关的权利。     

“If this be living I'd rather be dead”: Enslaved youth,agency and resistance on an eighteenth century Jamaican estate

By the late eighteenth century, enslaved children and young adults had become vital components in the reproduction of Caribbean slavery. Yet the experiences of enslaved children and adolescents have rarely been the focus of scholarship. Indeed, the near-absence of scholarship on enslaved children and youth within the historiographies of slavery, childhood and family history is striking. While we know much about the structure of family life, gender roles, courtship, marriage, and parenting among the enslaved, we know far less about the material worlds of enslaved youth and adolescents. Childhood and adolescence represented critical stages in the lives of enslaved children for it was during these life-stages that young people were inculcated with the racialised ideologies of the wider social order, gained insight into the value systems of their society, were socialized into acceptance of their status as unfree peoples, and prepared for their future roles as labourers. Hence, their experiences of slavery were qualitatively different from those of adult slaves.

This paper explores some aspects of adolescent life on the Jamaican estate of Thomas Thistlewood in the late decades of the eighteenth century. Thistlewood, manager of a slave-pen, early recognised the importance of young people in furthering his ambitions to become master of his own estate, and his purchases of young people reflect that market-rational strategy. Thistlewood’s preference for a youthful labour force stemmed from his conviction that young people could be more easily made to submit to his authority than adult slaves. Yet, Thistlewood’s belief in the greater tractability of enslaved youth was often undermined, as his adolescent labour force frequently and forcefully tested the limits of his mastery and asserted their rights to freedom. Thistlewood’s journal not only offers rich insights into the processes of transformation of enslaved children to adolescents and mature adults, but it also sheds light on enslaved youth and their negotiations with, manipulations of, and resistance to the master–slave relationship. This paper argues then, that far from being the passive objects of planter mastery, enslaved youth were active agents in the shaping of their own histories. In exploring these issues, this paper reveals much of the contradictions and ambiguities of enslaved childhood, youth and adolescence.     

Getting Schooled: Legal Mobilization as an Educative Process

This article explores the role of formal education and specific legal knowledge in the process of legal mobilization. Using survey data and in‐depth case narratives of workplace disputes in China, we highlight three major findings. First, and uncontroversially, higher levels of formal education are associated with greater propensity to use legal institutions and to find them more effective. Second, informally acquired labor law knowledge can substitute for formal education in bringing people to the legal system and improving their legal experiences. The Chinese state's propagation of legal knowledge has had positive effects on citizens' legal mobilization. Finally, while education and legal knowledge are factors that push people toward the legal system, actual dispute experience leads people away from it, especially among disputants without effective legal representation. The article concludes that the Chinese state's encouragement of individualized legal mobilization produces contradictory outcomes—encouraging citizens to use formal legal institutions, imbuing them with new knowledge and rights awareness, but also breeding disdain for the law in practice.     

Sexual Slavery: Do We Need This Crime in Addition to Enslavement?

The article focusses on the crime of sexual slavery in the ICC Statute. It examines the legal definition of enslavement in Article 7 (2) (c) ICC Statute and the Elements of Crimes (EOC) of enslavement and sexual slavery as well as the jurisprudence of the SCSL which was the first to deal with the application of the EOC of sexual slavery to a concrete situation (so-called ‘forced marriage’ phenomenon). The author questions whether there is a necessity to have two crimes against humanity of enslavement and sexual slavery but on the other hand, no war crime of enslavement. Further, she rejects the interpretation that human trafficking has become part of the definition of slavery/enslavement as the footnote in the EOC seems to suggest. The author argues vigorously that the phenomenon of ‘forced marriage’ should be prosecuted as sexual slavery and not under the residual offence of inhumane acts as a ‘new’ international crime.     

论劳动关系与劳务关系

随着市场经济的快速发展和劳动法制的不断完善,劳动力市场更加活跃,用人形式也更为灵活,劳动者与用人单位既可以建立劳动关系,也可以建立劳务关系。劳动关系与劳务关系都表现为一方提供劳动力,另一方支付劳动报酬,并经常交织在一起,实践中两者容易混淆,很难正确区分。但二者有着本质的不同,劳动关系是劳动者在用人单位从事劳动过程中发生的社会关系。劳务关系是指两个或两个以上的平等主体之间就劳务事项进行等价交换过程中形成的一种经济关系。二者在主体地位、表现形式、受国家干预程度、享受待遇等方面都具有本质的区别,只有认清二者的本质特征,才能正确适用法律,切实保障劳动者的合法权益。     

试论中国反贩运人口法律制度的完善

贩运人口是一种现代形式的奴役,严重侵害被贩运者的人权,危害社会和谐稳定。虽然有证据证明,中国的贩运人口情况很严重和需要加大对反贩运人口的法学研究,但是如何发展反贩运人口法律,仍然缺少系统的分析和严谨的论述。面对严峻的贩运人口犯罪形势,有必要完善反贩运人口法律制度,为打击贩运人口提供更为良好的法治环境。     

“If this be living I'd rather be dead”: Enslaved youth,agency and resistance on an eighteenth century Jamaican estate

By the late eighteenth century, enslaved children and young adults had become vital components in the reproduction of Caribbean slavery. Yet the experiences of enslaved children and adolescents have rarely been the focus of scholarship. Indeed, the near-absence of scholarship on enslaved children and youth within the historiographies of slavery, childhood and family history is striking. While we know much about the structure of family life, gender roles, courtship, marriage, and parenting among the enslaved, we know far less about the material worlds of enslaved youth and adolescents. Childhood and adolescence represented critical stages in the lives of enslaved children for it was during these life-stages that young people were inculcated with the racialised ideologies of the wider social order, gained insight into the value systems of their society, were socialized into acceptance of their status as unfree peoples, and prepared for their future roles as labourers. Hence, their experiences of slavery were qualitatively different from those of adult slaves.This paper explores some aspects of adolescent life on the Jamaican estate of Thomas Thistlewood in the late decades of the eighteenth century. Thistlewood, manager of a slave-pen, early recognised the importance of young people in furthering his ambitions to become master of his own estate, and his purchases of young people reflect that market-rational strategy. Thistlewood’s preference for a youthful labour force stemmed from his conviction that young people could be more easily made to submit to his authority than adult slaves. Yet, Thistlewood’s belief in the greater tractability of enslaved youth was often undermined, as his adolescent labour force frequently and forcefully tested the limits of his mastery and asserted their rights to freedom. Thistlewood’s journal not only offers rich insights into the processes of transformation of enslaved children to adolescents and mature adults, but it also sheds light on enslaved youth and their negotiations with, manipulations of, and resistance to the master–slave relationship. This paper argues then, that far from being the passive objects of planter mastery, enslaved youth were active agents in the shaping of their own histories. In exploring these issues, this paper reveals much of the contradictions and ambiguities of enslaved childhood, youth and adolescence.     

马克思的法律社会理论及其当代启示——以《〈黑格尔法哲学批判〉导言》为分析对象

法律社会理论是在法律社会学所提供的经验素材的基础上对整个现代社会的法律机理和法制系统进行总体性分析与批判,对现代法律关系下的人与物的关系、人与人的关系以及社会总体关系进行一种前瞻式的研究。马克思的法律社会理论深入到社会结构及其关系的内部,对人是人的最高本质这一核心命题进行了深刻解析,是一种关于法律的社会批判理论,并从批判中得出了法律之抽象性、矛盾性和世俗性等现代性问题。     

Cohabitation,Registration, and Reliance: Creating A Comprehensive and Just Scheme for Protecting the Interests of Couples' Real Relationships

This paper argues that courts and legislatures should recognize and protect adult relationships other than marriage, in two ways. First, couples in committed, cohabitating relationships should be protected when their relationship dissolves—even if they are not formally married. The law in this area is currently inconsistent and confusing, and should be cleaned up to reflect the reality of the lives of committed couples in need of legal protection. Second, all states should establish a registration scheme along the lines of Colorado's designated beneficiary law, which allows couples to flexibly design their legal relationship. This status should include specific arrangements about the ownership of property over the course of a long relationship, and should also be expanded to allow people to enter into more than one such relationship at a time, as long as the rights and obligations are not inconsistent. Given the number of couples operating outside of traditional marriage today, these two reforms will increase certainty of legal outcome and better protect the reliance interests of those in committed relationships.     

劳动力派遣中劳动者权益保护之探索

劳动力派遣就是一种新型用工关系,劳动力派遣涉及到派遣机构与劳动者之间的特殊劳动关系,用工单位与劳动者之间的关系,以及派遣单位与用工单位之间的关系。企业、事业单位违规使用劳务派遣工,逃避劳动合同责任,侵犯劳动者合法权益的现象时有发生。劳动力派遣中劳动者权益如何保护,劳动力派遣关系如何进行法律规制,是促进我国劳动力派遣制度完善并切实保护被派遣劳动者合法权益的重要课题。