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Legal Consciousness and Resistance in Carribean Seasonal Agricultural Workers

Published online by Cambridge University Press:  18 July 2014

Adrian A. Smith
Adrian A. Smith
Affiliation:
Institute of Comparative Law, McGill University, Montreal (Quebec), Canada H3A 1X1, adrian.smith@mail.mcgill.ca
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Abstract

Workers from the Commonwealth Caribbean employed seasonally on Canadian farms through the Canadian Seasonal Agricultural Workers Program are thought to be ignorant of prevailing labour standards. This marks not only an empirical claim about legal ignorance and knowledge, but also a theoretical claim about the role law assumes in capitalist relations, particularly in the ways law shapes consciousness and behaviour. The seasonal agricultural worker context presents an intriguing opportunity for the application of legal consciousness studies. Drawing specifically on the emerging field of new legal consciousness studies, with its emphasis on the legal consciousness of non-legal professionals, the paper contests both the empirical and theoretical aspects of the legal ignorance claim. New legal consciousness studies undergo an important revision to account for law's role in forming the background rules for liberal capitalism. In this respect, the paper points the direction for future study of the relationship between seasonal agricultural worker resistance and law.

Résumé

On considère que les travailleurs des Antilles du Commonwealth qu'embauchent les producteurs agricoles au Canada en vertu du Programme canadien des travailleurs agricoles saisonniers ignorent tout des normes du travail en vigueur. Cet état de fait constitue non seulement une affirmation empirique concernant l'ignorance et la connaissance du droit, mais aussi une affirmation théorique concernant le rôle du droit dans les relations capitalistes, et surtout la façon dont il façonne les consciences et les comportements. Le cas des travailleurs agricoles saisonniers présente une occasion intéressante d'appliquer les études sur la conscience du droit. En s'appuyant sur les assises de ce nouveau domaine en émergence qui examine la conscience du droit chez les non-juristes, le présent article conteste l'aspect à la fois empirique et théorique de l'affirmation relative à l'ignorance du droit. Les nouvelles études en conscience du droit font l'objet d'une révision importante pour expliquer le ro1e du droit dans l'énoncé des règles de base d'un capitalisme libéral. En ce sens, cet article ouvre la voie à des études subséquentes sur le rapport qui existe entre la résistance du travailleur agricole saisonnier et le droit.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 20 , Issue 2 , August 2005 , pp. 95 - 122
Copyright
Copyright © Canadian Law and Society Association 2005

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References

1 Bob Marley, Concrete Jungle. From the 1972 Bob Marley & the Wailers album, Catch A Fire. See online: Bobmarley.com <http://www.bobmarley.com/songs/songs.cgi7concrete>.

2 For instance, on 22 April 1978, eighteen months after a failed assassination attempt on his life, Marley returned to Jamaica to perform at the “One Love Peace Concert.” That night on stage Marley brought together for the first time Prime Minister Michael Manley and opposition leader Edward Seaga, the prime perpetrators of the politically charged gun-war which left bullet fragments in Marley's left shoulder and Jamaica in a state of social turmoil. The lasting image of the concert is of Marley at centre stage, holding together the hands of the two political rivals.

3 In songs such as “War”, “Zimbabwe”, and “Redemption Song” Marley called for the oppressed to rebel against the powers that be.

4 Throughout this article, I employ the terms “seasonal agricultural worker” and “migrant worker” interchangeably. Although I do not use “guest worker” here, other literature adopts this terminology.

5 The SAWP operates in Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick, Nova Scotia and Prince Edward Island with most workers going to Ontario and Quebec. The program has recently been expanded to include British Columbia. See HRSD, News Release, “Government of Canada Seasonal Agricultural Workers Program expanded in British Columbia” (20 May 2004), online: HRSD <http://www.hrsdc.gc.ca/en/cs/comm/hrsd/news/2004/040520a.shtml>. In 2003, the Canadian and Guatemalan governments initiated a two-year pilot project that brought 215 indigenous farm workers to Canada. For key statistics on the Canada-Guatemala project see International Organization For Migration, News Release, “Guatemala—Labour Migration to Canada” (May 2004), online: International Organization For Migration <http://www.iom.int>. Pilot projects are also underway in other sectors such as hotel (Alberta), meat-packing (Manitoba) and worm picking (Ontario). Trial workers, like their cohorts in the SAWP, have complained about employer mistreatment. See e.g. Richmond, Randy, “Unwanted migrants taken to ‘safe house’” The London Free Press (22 June 2004), online: The London Free Press <http://www.lfpress.com>Google Scholar (reporting that two female worm workers—both single mothers from Mexico—sought refuge in a “safe house” after allegedly being mistreated by their employer, Mississauga-based National Bait which recruited over forty workers for worm picking on farms and golf courses in south-western Ontario); Richmond, , “A dream undone” The London Free Press (3 July 2004)Google Scholar, online: The London Free Press <http://www.lfpress.com>; Richmond, , “Battle over workers heats up” The London Free Press (3 July 2004).Google Scholar

6 Jamaica signed the initial agreement with Canada and immediately sent 264 workers. Trinidad and Tobago and Barbados signed on in 1967. In 1974, Mexico and Canada entered into a similar agreement. In 1976, the Canadian government extended the program to include the Organization of the East Caribbean States—Antigua & Barbuda, Dominica, Grenada, Montserrat, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines. Currently, there are about 20000 workers employed through the SAWP each year; over 7500 workers are from the Caribbean. The United States has a structurally similar program, referred to as the H-2A Seasonal Agricultural Worker Program (named after the pertinent section of the U.S. Immigration and Nationality Act).

7 Program administration fell initially on the Department of Manpower and Immigration and the Canada Employment Commission. In 1987 FARMS assumed administrative duties. FARMS processes employer's requests for workers and “communicates the orders (…) to the governments of the supply countries”. FARMS also works with CanAg Travel Services Ltd., the SAWP's authorized travel agent, to arrange workers' travel itineraries. Employers may request that CanAg coordinate the movement of workers from the airport to the farm. Some commentators have argued that the inclusion of industry representatives in the administrative and design aspects of the SAWP constitutes an important or best practice. See Philip L. Martin, “Managing Labor Migration: Temporary Worker Programs For the 21st Century” (Geneva: International Institute For Labour Studies, 2003) at 23, online: International Labour Organization <http://www-ilo-mirror.cornell.edu/public/english/bureau/inst/download/migration3.pdf>.

8 Caribbean & Mexican Seasonal Agricultural Workers Program—Overview online: HRSD <www.hrsdc.gc.ca> [emphasis added].

9 Ibid.

10 Ibid.

11 Ibid. [emphasis added].

12 Satzewich, Vic, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991).Google Scholar For additional political economic accounts see Andre, Irving, “The Genesis and Persistence of the Commonwealth Caribbean Seasonal Agricultural Workers Program In Canada” (1990) 28:2Osgoode Hall L.J. 245Google Scholar (locating labour migration in the historically rooted and on-going process of “third world” labour exploitation, that is “as the logical outcome of a historical process or, indeed, the result of a conscious rational policy rooted in the political economy of” the Commonwealth Caribbean); Sharma, Nandita Rani, “Birds of Prey and Birds of Passage: The Movement of Capital and the Migration of Labour” (1997) 30:1Labour Cap. Soc. 8.Google ScholarPubMed

13 Satzewich credits “the process of capitalist accumulation” for “drain[ing] off labour previously employed on farms.” ibid. at 81–82; c. 3.

14 But see Basok, Tanya, Tortillas and Tomatoes: Transmigrant Mexican Harvesters (Montreal & Kingston: McGill-Queen's University Press, 2002)Google Scholar [Basok, Tortillas and Tomatoes] (arguing farm labour migration occurs not necessarily because of cheap labour but “captive labour” as, to put it simply, the natural environment dictates the picking and production schedule. The cheap labour rationale, contends Basok, is based on the outdated notion of the family farm); Griffith, David, “Peasants in Reserve: Temporary West Indian Labor in the U.S. Farm Labor Market” (1986) 20:4International Migration Review 875 at 881CrossRefGoogle ScholarPubMed (“Coming from poor nations (…) West Indians constitute a willing, reliable, and highly docile labor force. Most importantly, the West Indians constitute a captive labor force: they are certified to work for a single apple or sugar company and they have no freedom to move on to other, subjectively better jobs (…) the primary reason for their desirability is that they are captive”). A commentator in the United States has argued that the corporatization of farming may present union organizing opportunities for farm workers. The accumulation of capital and other assets by corporate farms will allow the pool of workers to reach a critical mass at these farms from which union mobilization efforts can be launched. Rebecca Clarren “Got guilt?” Salon.com (27 August 2004), online: Salon.com <http://www.salon.com/news/feature/2004/08/27/dairy_farms/index_np.html>.

15 As one worker stated to me: “The boss has lots of work but little money.” In 2004, the standard wage for migrant farm workers in Ontario was just over seven dollars. While this rate surpassed Ontario's general minimum wage rate of $6.85 (a rate that went unchanged throughout the nearly ten year reign of the Mike Harris neo-conservati ve regime), both rates fell (and continue to fall) far below a living wage. HRSD sets the agriculture wage rate on an annual basis with, according to critics, little explanation on how they make their assessment.

16 Kimberly Knowles points out that all but four of the thirty Jamaican workers she interviewed complained about the strenuous nature of farm work in Canada. Knowles, The Seasonal Agricultural Workers Program in Ontario: from the Perspective of Jamaican Migrants (M.A. Thesis, University of Guelph, 1997) [unpublished] at 73–75.Google Scholar The work can also be deadly. In August 2002, for instance, Ned Livinston Peart, a Jamaican migrant worker, was crushed to death by a 12000-pound kiln of tobacco on a farm in the Brantford Ontario area. A coroner's inquest has not been called into Peart's death despite vehement calls from family members and activists. In other respects, the Ontario College of Family Physicians released a report linking the use of pesticides to a number of forms of cancer and other serious illnesses. A principle finding was that exposure to agricultural chemicals on the job may lead to adverse reproductive effects, including birth defects and fetal death. See Systematic Review of Pesticide Human Health Effects, (2004), online: Ontario College of Family Physicians <http://www.ocfp.on.ca>. For a historical look at the dangers of farm work see Parr, Joy “Hired Men: Ontario Agricultural Wage Labour in Historical Perspective” (1985) 15 Labour 91.CrossRefGoogle Scholar

17 Calls for the use of Caribbean workers on Canadian farms began as early as 1947. These calls originated from two sources, Commonwealth Caribbean governments (along with the United Kingdom High Commissioner in Canada) and Ontario farmer and food processor organizations and their Members of Parliament. See Satzewich, supra note 12 at 146.

18 The formal shift in immigration policy has been recounted by Satzewich and others. See e.g. Satzewich, , “Racism and Canadian Immigration Policy: The Government's View of Caribbean Migration, 1962–1966” (1989) 21:1Canadian Ethnic Studies 77.Google Scholar

19 For a comparative examination of the rights afforded to migrant workers, see the Commission for Labor Cooperation, “Protection of Migrant Agricultural Workers in Canada, Mexico and the United States” (Secretariat of the Commission, 2002), online: Commission for Labor Cooperation <http://www.naalc.org/english/pdf/study4.pdf>. For a recent look at the socio-economic plight of migrant workers in the United States, Canada and Mexico, see R. Hinojosa-Ojeda, et al., “The Extent, Pattern, and Contributions of Migrant Labor in the NAFTA Countries: An Overview” (Los Angeles: The North American Integration and Development Center, 2000), online: The North American Integration and Development Center <http://naid.sppsr.ucla.edu/pubs&news/wr00800.html>. See also Basok, supra note 14; Cecil, R.G. & Ebanks, G.E., “The Human Condition of West Indian Migrant Farm Labour in Southwestern Ontario” (1991) XXIX:3International Migration 389CrossRefGoogle Scholar; Satzewich, supra note 12; and Min Sook Lee's awarding-winning documentary “El Contrato” (National Film Board of Canada, 2003).

20 These constraints come from various sources. There are limitations (and inclusions) by way of statute and public policy, which I address below. In Canada, migrant farm workers are governed by a specific contractual agreement with employers, provincial governments, the Canadian federal government, and foreign governments. There are distinct agreements in place for workers from the Commonwealth Caribbean and for workers from Mexico. The standard form agreement covers eleven areas including: the scope and period of employment; lodging, meals and rest periods; payment of wages; deductions from wages; insurance for occupational and non-occupational injury and disease; maintenance of work records and statement of earnings; travel and reception arrangements; obligations of the employer; obligations of the worker; premature repatriation; financial undertakings. Because the larger point of this paper is about “legal consciousness” I do not evaluate the specifics of these agreements. For a cogent, albeit slightly outdated, look at the SAWP contracts see Andre, supra note 12. An interesting provision of the Agreement that might speak to the validity of the notions unfree labour and captive labour is the formalized right of employers, “where the urgency to finish farm work can not be delayed”, to seek the consent of workers to postpone the one day of rest (an entitlement after six consecutive days of work) “until a mutually agreeable date”. A copy of the Agreement can be found on the HRSD internet site, see online: <www.rhdcc.gc.ca>.

21 Seasonal agricultural workers fall under provincial jurisdiction with respect to labour regulation. The regulatory frameworks differ (sometimes drastically) across provinces.

22 The Act excludes migrant workers from coverage for hours of work, daily rest periods, weekly/bi-weekly rest periods, eating periods, overtime; and provides coverage for termination notice/pay, and pregnancy, parental, family medical and emergency leave.

23 In June 2003, the United Food and Commercial Workers of Canada (UFCW) initiated an action against the province of Ontario on the basis that the exclusion of farm workers from Ontario's Occupational Health and Safety Act violates the equality rights provision of the Charter of Rights and Freedoms. The Ontario government has recently announced plans to amend the regulations to extend health and safety protection to some farming operations (by June 2006).

24 According to a recent news release issued by the UFCW, in 2002 migrant workers paid $3.4 million in premiums under the federal Employment Insurance Act. “UFCW Canada launches constitutional challenge over discriminatory treatment of migrant agricultural workers under the Employment Insurance Act” (12 November 2003).

25 Employers must provide workers with living accommodations without cost. These accommodations are subject to inspection by officials from the Ministry of Health. Further, the employer is required to provide meals for workers, paid for by the worker, or to provide “cooking utensils, fuel, and facilities without cost” where workers prepare their own meals.

26 Interestingly, female domestic migrant workers entering under the auspices of what is now called the Live-In Caregiver Program have won the opportunity to apply for permanent residence status after two years of service in Canada (within three years of their arrival in Canada). Researchers have shown that the advantages of permanent residence status have quite often eluded female domestic workers in Canada. See e.g. Stasiulis, Daiva K. & Bakan, Abigail B., Negotiating Citizenship: Migrant Women in Canada and the Global System (New York: Palgrave, 2003).CrossRefGoogle Scholar

27 In Satzewich's words: “The condition of unfreedom derives from the inability to circulate in a labour market (indeed the absence of a labour market), the inability to determine to whom one must provide surplus labour and the inability (or lack of necessity) to enter the market to purchase commodities for the reproduction of the capacity to work.” Satzewich, supra note 12 at 42. As well, the denial of the opportunity to permanently settle in Canada also constitutes a defining characteristic of unfreedom (ibid. at 107). Some workers employ identical language to describe their situation on Canadian farms. “In my mind, slavery has not yet disappeared”, states one Mexican tomato picker in Leamington Ontario. The worker made these comments in the course of the 2003 documentary entitled, “El Contrato”. The documentary, directed by Torontonian Min Sook Lee, and produced by the National Film Board of Canada, examines the relationship between workers, growers and community members in Leamington Ontario—one of North America's largest greenhouse growing communities. Local activists also support this contention, openly employing terms such as “slave labour” and “indentured servitude” to refer to the role that migrant workers play in Ontario's produce industry; and, describing the SAWP as a “form of slavery.” Interview of Chris Ramsaroop (30 November 2003). Ramsaroop is a cofounder of Justicia For Migrant Workers (J4MW), a group of Toronto area activists that function to provide assistance to seasonal agricultural workers as well as to advocate for legal and social reform on issues related to migrant workers. J4MW is the only group of its kind in Ontario, and operates the only Canadian Internet site dealing with migrant worker issues. See online: J4MW <http://www.justicia4migrantworkers.org/>. Employers also employ this language. See e.g. El Contrato; Sarah McGregor “A Program That Works” Embassy (1 September 2004), online: Embassy <http://www.embassymag.ca/html/index.pnp?display=story&full_path=/2004/september/l/mcgreg3/> (citing Laurent Cousineau, the vice president of Paul Cousineau & Fils Inc, a broccoli farm in Montreal, in reference to the seventy-two workers employed at the farm: “It's like having 72 dependents with me”). Similar claims have been made about the employment of illegal immigrant workers in the United States. See the three-part special report of the Palm Beach Post “Slavery is not just the shameful stuff of history books—not in Florida” (December 2003), online: Palm Beach Post.com <http://www.palmbeachpost.com/hp/content/moderndayslavery/index.html?track=mb>.

28 Satzewich, supra note 12 at 42. See also Satzewich, , “Unfree Labour and Canadian Capitalism: The Incorporation of Polish War Veterans” (1989) 28 Studies in Political Economy 89CrossRefGoogle Scholar; Miles, Robert, Capitalism and Unfree Labour: Anomaly or Necessity? (New York: Tavistock, 1987)Google Scholar; Wall, Ellen, “Personal Labour Relations and Ethnicity in Ontario Agriculture” in Satzewich, Vic, ed., Deconstructing A Nation: Immigration, Multiculturalism and Racism in '90s Canada (Halifax: Fernwood, 1992).Google Scholar The term unfree labour is used in contrast with free or wage labour which, in Marxian terms, refers to mere economic compulsion. Marx did not actually employ the term in his work.

29 See e.g. Miles, ibid.; Banaji, Jairus, “The Fictions of Free Labour, Contract, Coercion, and So-called Unfree Labour” (2003) 11:3Historical Materialism 69CrossRefGoogle Scholar; Brass, Tom, “Why Unfree Labour is Not ‘So-Called’: The Fictions of Jairus Banaji” (2003) 31:1J. Peasant Stud. 101.CrossRefGoogle Scholar

30 See Basok, Tanya, “Free to Be Unfree: Mexican Guest Workers in Canada” (1999) 32:2Labour Cap. Soc. 192.Google Scholar

31 Ibid. at 196.

32 Ibid.

33 Ibid., at 194. See also Knowles, supra note 16 at 30.

34 For a searing attack on the capitalist notion of freedom that was so freely perpetuated in the work of neo-classical economists like Milton Friedman see Macpherson, C.B., “Elegant Tombstones: A Note on Friedman's Freedom” in Democratic Theory: Essays in Retrieval (New York: Oxford University Press, 1973) 143.Google Scholar

35 Basok, supra note 30 at 218. See also Basok, , “Post-national Citizenship, Social Exclusion and Migrant Rights: Mexican Seasonal Workers in Canada” (2004) 8:1Citizenship Studies 47 at 50CrossRefGoogle Scholar [Basok, “Post-national Citizenship”] (arguing “[t]o formulate claims individuals and groups need to understand that they are denied legal rights and that extant legal or human rights frameworks make it possible for them to seek redress. These individuals and groups also require communication skills to translate their understanding of the oppression into demands for justice using the language that is understood and accepted by those who deny them equal treatment (…)? Some groups of migrants, by virtue of their exclusion from the host society, may lack linguistic skills, knowledge of their legal entitlements, mechanisms required to access benefits, or support from sympathizers, to be able to claim their rights”) [original emphasis].

36 For a discussion on paternalism see e.g. Basok, Tortillas and Tomatoes, supra note 14; Cecil & Ebanks, supra note 19.

37 I must stress that this qualitative research is not yet finished. It has been delayed by two central factors. First, access to workers who are openly willing to discuss their experience in the SAWP has been difficult. Even fewer workers are willing to discuss their daily acts of defiance and resistance. Second, the preliminary results have raised myriad theoretical challenges. In particular, workers bring with them legal sensibilities formed in their home societies, and in turn these sensibilities are re-shaped in Canada. Legal scholars (broadly defined) have done little to examine these “transnational” issues to date, and a reliance on social scientific approaches to transnationalism presents complex conflicts and challenges for the legal researcher.

38 The primary method of data collection, generated data in the form of group discussions, was conducted at the Root farm on 26 October 2003 in the Holland Landing area. Holland Landing is the home of the Holland Marsh, the Dutch farming settlement at the heart of Ontario's produce industry. I met with at least eight Jamaican migrant workers, but had extensive discussions over several hours with Clark, George, and Adam. I am deliberately vague about the exact location of the farm to ensure the anonymity of the workers interviewed. I have changed individual's names, and the name of the farm, also out of respect for these workers. In addition, I have conducted in-depth interviews with activists working on migrant worker issues. Finally, participant observational research was conducted at three J4MW meetings in 2003 and 2004.

39 To be clear, Basok acknowledges this point. Basok also describes an incident during the course of research interviews of Mexican migrant workers which supports the view that workers likely know little about their legal entitlements. On this occasion, Basok and research assistant Nicole Noel were “bombarded” with questions about legal rights by workers. The pair later conducted a legal education session in which about 200 workers participated. They also arranged for representatives of the Occupational Health Clinics for Ontario Workers to conduct an information session. Basok, “Post-national Citizenship”, supra note 35 at 52–53.

40 I believe that by taking seriously questions about the relationship between legal consciousness and the structural parameters of law, we open up important possibilities for legal activism. The task is to foreground law's role as background rules; that is, to bring them into the consciousness of workers and activists alike.

41 Dworkin, Ronald, Law's Empire (London: The Belknap Press, 1986) at 410Google Scholar; Jacobs, Lesley, “Legal Consciousness and Its Significance for Law and Society Teaching Outside Canadian Law Schools” (2003) 18:1C.J.L.S. 61 at 64.CrossRefGoogle Scholar

42 Dworkin, ibid.

43 Sarat, Austin, Douglas, Lawrence, & Umphrey, Martha, eds., Lives in the Law (Ann Arbor: University of Michigan, 2002) at 10.CrossRefGoogle Scholar

44 Klare has described his politics as traditional leftist and Kennedy's as modernism/post-modernism, or MPM. See Klare, Karl, “The Politics of Duncan Kennedy's Critique” (2001) 21 Cardozo L. Rev. 1073 at 1083Google Scholar, especially 1088–1093 [Klare, “Politics”].

45 As Richard Bauman argues, this adherence to Marxian (and Hegelian) philosophy is likely more about “inspiration rather than models strictly to be followed”, see Bauman, , Ideology and Community in the First Wave of Critical Legal Studies (Toronto: University of Toronto, 2002) at 44.Google Scholar Klare reiterates these sentiments about Kennedy, noting Kennedy's acknowledgement of “Marx's influence” but arguing that “the strand in Marxism looking toward insurrectionary seizure of the organs of state finds no resonance in Kennedy's work; if anything, it is treated as a dangerous fantasy”, see Klare, ibid. at 1089. The discrepancies between the critical legal understanding of legal consciousness and what might be deemed Marx's own understanding cannot be explored in detail here. An appropriate starting point for such an exploration might be Marx's Preface to the Critique of Political Economy. “Consciousness,” as Marx put it, “must be explained rather from the contradictions of material life, from the existing conflict between the social productive forces and the relations of production.” The Marxian legal project underwent a serious revision in the late 1970s and early 1980s. Neo-Marxian critiques adopted the relative autonomy of law thesis as a response to questions about determinism. See e.g. Balbus, Issac, “Commodity Form and Legal Form: An Essay on the ‘Relative Autonomy’ of the Law” (1977) 11 Law & Soc'y Rev. 571CrossRefGoogle Scholar; Spitzer, Steven, “Marxist Perspectives in the Sociology of Law” (1983) 9 Ann. Rev. Soc. 103CrossRefGoogle Scholar; Stone, Alan, “The Place of Law in the Marxian Structure-Superstructure Archetype” (1985) 19:1Law & Soc'y Rev. 39CrossRefGoogle Scholar; Tucker, Eric, “The Law of Employers' Liability In Ontario 1861–1900: The Search For A Theory” (1984) 22 Osgoode Hall L.J. 213.Google Scholar

46 See e.g. Kairys, David, ed., The Politics of Law: A Progressive Critique, 3d ed. (New York: Basic Books, 1998)Google Scholar; Hunt, Alan, “The Ideology of Law: Advances and Problems In Recent Applications of the Concept of Ideology to the Analysis of Law” (1985) 19:1Law & Soc'y Rev. 11.CrossRefGoogle Scholar

47 Klare, Karl, “Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law” (1981) 4 Ind. Relat. L.J. 450 at 451.Google Scholar

48 Klare, Karl, “Contracts Jurisprudence and the First-Year Casebook”, Book Review (1979) 54 N.Y.U. L. Rev. 876 at note 2, 876.Google Scholar This footnote is widely recognized as the first scholarly statement on the Crits' version of legal consciousness.

49 Ibid. The relationship between law and society as Crits saw it, was dependent on a more nuanced understanding of “the degree to which law can be a relatively autonomous phenomenon.” See Bauman, supra note 45 at 8. Despite this altered conception of legal consciousness, Crits share a basic understanding of adjudication with liberal legal theorists. In his review of Kennedy's Critique of Adjudication, Klare characterizes Kennedy's view on adjudication as follows: “Legal texts must be interpreted through legal work. Interpretation is a meaning-creating activity, so that ‘the law handed down' to adjudicators consists in part of meanings created by prior adjudicators.” See Klare, “Politics”, supra note 44 at 1083. In a partial restatement of the Crit position, Klare notes that “the judge's personal/political values and sensibilities cannot be excluded from interpretive processes and adjudication” (ibid., at 1087).

50 See e.g. Kairys, supra note 46.

51 Ewick, Patricia & Silbey, Susan S., “Common Knowledge and Ideological Critique: The Significance of Knowing That the ‘Haves’ Come Out Ahead” (1999) 33 Law & Soc'y Rev. 1025 at 1026CrossRefGoogle Scholar [Ewick & Silbey, “Common Knowledge”].

52 Ibid.

53 Ibid. at 1036.

54 Ibid. at 1040.

55 Ibid.

56 Ibid. at 1037.

57 Bauman finds the critical legal studies approach offers an important benefit. A focus on legal consciousness of elites does hold some promise “in so far as it parallels explanations of change and resistance to change in the history of scientific disciplines. It could illuminate how certain elite conceptions of justice and of the very notion of legality have managed to hold the field against alternative conceptions based on different political or economic premises.” In essence then, it “demonstrate[s] the conservative nature of what passes for legal scholarship.” See Bauman, supra note 45 at 49–50.

58 Nielsen, Laura Beth, “Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment” (2000) 34 Law & Soc'y Rev. 1056 at 1059.CrossRefGoogle Scholar

59 Ibid.

60 Ibid. at 1060. See also Ewick, Patricia & Silbey, Susan S., “Conformity, Contestation, and Resistance: An Account of Legal Consciousness” (1992) 26 New Eng. L. Rev. 731 at 736Google Scholar [Ewick & Silbey, “Conformity”], “[t]o know the uses of law, we need to know not only how and by whom the law is used, but also when and by whom it is not used.”

61 Ibid., at 748. “(…)‘[P]recisely when an act becomes transformed from mundane practice to rebellious praxis is an empirical question, and the effects of an act may not be visible until some future date’” (ibid. at 748–49).

62 Ibid. at 732.

63 Ibid.

64 Ibid. at 742–43.

65 Ibid. at 747.

66 Ibid. at 736.

67 Jacobs supra note 41 at 63.

68 In Jacobs' words, “[t]he insider perspective is that of lawyers, judges and other legal professionals. They view legal rules and procedures from inside the legal system, as repeat players in the system. Practically everyone else has an outsider perspective” (ibid. at 63).

69 Ewick & Silbey, “Conformity”, supra note 60 at 736.

70 Ewick and Silbey, and Nielsen, employ the term “citizen.” I find the use of the term troubling and problematic particularly in the context of the relevance of new legal consciousness studies to migrant farm workers who are not Canadian citizens.

71 The use of the term “ordinary” is also problematic. I employ the term in quotations to recognize that it takes on a particular meaning, in contrast to legal professionals, in the new legal consciousness studies literature.

72 Supra note 57.

73 The discipline is so fragmented that some scholars have even questioned whether non-liberal perspectives on law have a legitimate place in legal professional education at all. See, for instance, the call from then Duke University Law School Dean Paul D. Carrington to banish critical legal studies from the legal academy, and for Crits to resign from their academic positions in law schools, Carrington, , “Of Law and the River” (1984) 34 J. Legal Educ. 222.Google Scholar These close-minded and intolerant views continue to haunt legal education in both Canada and the United States.

74 See e.g. Purdy, Jeannine, “Postcolonialism: The Emperor's New Clothes?” in Darian-Smith, Eve & Fitzpatrick, Peter, eds., Laws of the Postcolonial (Ann Arbor: University of Michigan, 1999) 203.Google Scholar

75 In Jacobs' words, “allowing for divergence in interpretations of script [“statutes, treaties, case law”] does not mean that the legal consciousness of ordinary people is necessarily mistaken; this conception of legal consciousness rejects, like much contemporary literary theory, the view that there is one true interpretation of a script and therefore the very intelligibility of the charge that the legal consciousness of ordinary people is ‘false.’” See Jacobs, supra note 41 at 63.

76 Ewick & Silbey, “Common Knowledge”, supra note 51 at 1027, note 1.

77 Ibid. at 742.

78 Ibid.

79 Ibid. at 741.

80 See e.g. Sheldrick, Byron, Perils and Possibilities: Social Activism and the Law (Halifax: Fernwood, 2004).Google Scholar

81 Garcia-Villegas, Mauricio, “Symbolic Power Without Violence? Critical Comments On Legal Consciousness Studies” (2003) 16 Int'l J. Sem. L. 363 at 367.CrossRefGoogle Scholar

82 See e.g. Fudge, Judy & Tucker, Eric, Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900–1948 (Toronto: Oxford, 2001) at 15Google Scholar (“our focus on legal institutions [represented in a concentration on “strike-related and trade union activity”] inevitably tends to obscure the texture of daily life against which class relations are played”).

83 It is significant to note that the idea of overlapping and competing ideologies is supported in neo-Marxian accounts. See e.g. Stone, supra note 45 at 44 (explaining Pashukanis' understanding that capitalist law both reinforces an ideology that embraces individualism, private autonomy and material self-interest on one hand, and mutual obligation and obedience to external authority on the other).

84 Ibid. at 48–54. In Harry Glasbeek's words, “(…) it is not necessary that the constructs of private property and private contract have to have a specific meaning or content. Indeed, it would be ahistorical, acontextual, i.e., profoundly anti-Marxian, to hold that the meaning and content of these constructs be written in stone. Historical struggles and material conditions will dictate the scope of these constructs (…)” See Glasbeek, , “Class War: Ontario Teachers and the Courts” (1999) 37:4Osgoode Hall L.J. 805 at 820.Google Scholar

85 “To assert that liberal law plays a central role in the maintenance and perpetuation of capitalist relations of production,” as Glasbeek asserts, “is not the same as saying that law automatically reflects the needs of capitalism”. This, according to Glasbeek would be “too crude a view of the way in which law works.” Instead, “[l]aw does more than reflect the fundamental needs of capitalism, in part because it is not clear what the precise scope of the needs its has in any one place at any one time”, see Glasbeek, ibid. at 819. For an elaboration of the relative autonomy of law thesis see Eric Tucker, supra note 45.

86 Law does this not only by supporting the tenets of liberalism “and democratic forms within the framework of those liberal tenets,” but by facilitating the turn to markets (and “market transactions”). See Glasbeek, ibid. at 818.

87 Stone, supra note 45 at 60.

88 Fudge & Tucker, supra note 82 at 10–11. See also Smith, Adrian A., Industrial Democracy and Industrial Legality in Canada: A Critique of Communitarian Corporate Law (LL.M Thesis, Osgoode Hall Law School, 2005) [unpublished].Google Scholar

89 Cited in Craton, Michael, “Proto-Peasant Revolts? The Late Slave Rebellions in the British West Indies 1816–1832” (1979) 85 Past Present 99.CrossRefGoogle Scholar Owners struggle to contain and suppress workers' acts of resistance to the extent desired for the most efficient extraction of surplus value.

90 Balbus, supra note 45 at 582–83.

91 In supporting the construction of Black Canadian identity bounded by a particular understanding of the nation-state, law takes on a pivotal role in shaping the disciplinary boundaries of Canadian labour studies. Liberal law imposes politico-legal constraints on migrant farm workers as non-citizens, which in turn legitimizes their exclusion from nation-state confined definitions of “Canadian,” or more specifically “Black Canadian”; consequently, legitimizing their exclusion from the study of Canadian labour. As mentioned above, Basok similarly criticizes earlier Marxian political economic studies on migrant labour for adopting a nation-state confined approach. See Basok, supra note 30. In a recent article, Satzewich acknowledges the validity of the transnational critique. See Satzewich, & Wong, Lloyd, “Immigration, Ethnicity, and Race: The Transformation of Transnationalism, Localism, and Identities” in Clement, Wallace & Vosko, Leah F., eds., Changing Canada: Political Economy as Transformation (Montreal & Kingston: McGill-Queen's, 2003) 363.Google Scholar

92 To say I sympathize with the view that transnational factors complicate the study of seasonal migrant labour is not to advance claims about state sovereignty and disempowerment. We must be careful not to confound transnational insights on the limitations of nation state-bounded analytical approaches with sweeping claims about diminished state sovereignty and the decline of domestic law-making, which derive from current debates over the impact of “globalization” on the state.

93 I have uncovered three important exceptions: Andre, supra note 12 (drawing on the political economy of labour migration in the historical development of the Caribbean in an analysis of the legal framework governing migrant labour in Canada); Knowles, supra note 16 (locating discussions on migrant farm workers in Ontario within the post-emancipation history of Jamaica); Larkin, Sherrie N., Workin' On The Contract: St Lucian Farmworkers In Ontario A Study of International Labour Migration (Ph.D Dissertation, McMaster University, 1998)Google Scholar, (locating labour migration within the post-emancipation history of St Lucia in a discussion of St Lucian seasonal agricultural workers in Simcoe).

94 Farmers and government officials in the receiving and supplying nations have noted their concerns about worker flight—using the military acronym, absent without leave or “AWOL.” See Knowles, ibid. at 89–90 (including a statistical breakdown of the number of AWOL cases between 1986–1995. Farmers in the late 1980s saw a spike in the percentage of AWOL cases with 4.2% of all migrant workers in the SAWP in 1988 and 3.8% the following year. By 1995 the percentage had fallen to 1.4%). Moreover, we can draw on the second-hand accounts from activists and others of the actual tactics employed by migrant workers. For instance, J4MW member Chris Ramsaroop notes that workers have acknowledged purposely slowing the pace of work to disrupt the picking process—although he had never heard of workers feigning sickness or destroying crops. See also Basok, , “He Came, He Saw, He (…) Stayed. Guest Worker Programmes and the Issue of Non-Return” (2000) 38:2Int. Migr. 215.CrossRefGoogle Scholar

95 From this perspective, future research could contrast the experiences of seasonal workers to the histories of enslaved and indentured agricultural workers throughout the western hemisphere. Slaves in the antebellum era in the United States and in the Caribbean sugar plantation period adopted varying forms of labour resistance, including crop destruction, collective slowdowns and flight. Such an approach would assist in more detailed understandings of how strategies of resistance employed by Caribbean migrant workers were influenced by the ineffectual nature of liberal law, and how old strategies might now be adapted.

96 The best example of the transformation is the creation of two standard form agreements one that applies strictly to Caribbean migrant workers the other to Mexican workers. This approach downplays the common work and other experiences of Caribbean and Mexican workers.

97 See Macpherson, supra note 34.

98 Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016 (striking down an Ontario labour relations statute which withheld freedom of association rights from agricultural workers).

99 Makin, Kirk, “Farm workers take issue with ‘useless’ law” Globe and Mail (15 March 2005) A9Google Scholar, noting the arguments put forth by UFCW lawyer Paul Cavalluzzo “(…) that a new law passed by the province, the Agricultural Employees Protection Act, is a cosmetic response to the top court's ruling and provides virtually no genuine rights or protections to the province's estimated 80,000 farm workers.”

100 See Affidavit of Judy Fudge in Dunmore v. Ontario, [1997] 37 O.R.3d 287 (Ont. Ct. Gen. Div.).

101 That is to say, even without the interference of the SAWP and related regulatory and legal intrusions, agri-employers benefit from power and privileges extended through the employment relationship.