Ambitious endeavours: on injecting colonialism, legal histories and racialised capitalism into informality studies

The contemporary literature on informality has established that informality is pervasive and not limited to a specific culture or geography. Entries in the Global Informality Project such as the old boy network and pulling strings in the UK to svart arbete (black work) in Sweden, serve as prime evidence that informality is a universal human reality, rather than a feature of developing societies (Kirkby & Trust, 2019; Larse, 2020; Polese, 2021; Smith, 2020). Loosely defined as an ‘activity performed by an individual or group of individuals … that eventually bypasses the state’, among the practical aims of informality studies is to identify alternatives to neoliberal governance approaches (Polese, 2021, p. 3). Formality and informality are conceptualised as representing a spectrum, being intertwined, and whose moral justifications are experienced subjectively (Ledeneva et al., 2017; Polese, 2021).

Informality has many sources of ambivalence, and an approach to enrich our understanding is one that sees the ‘informal and formal [as] relational categories whose boundaries are determined by culture and power’ (Tucker & Anantharaman, 2020, p. 290). For example, some informality scholars recognise that the post-colonial and post-socialist conditions are associated with ‘in-betweenness, liminality, marginality and ambiguity’(Ledeneva et al., 2017, p. 2; McCarthy & Puffer, 2017, p. 108). Relevantly, the literature on legal histories in colonial contexts recognises that economic rights, labour relations, property and other entitlements were enacted by means of legal instruments (Comaroff, 2001), which could offer insights into the sources of these states of ‘liminality’. In this essay, I present common narratives and arguments on the workings of colonial law, whose legacies constitute modern processes of ‘racialised capitalism’ within and across borders, which has implications for certain informal conditions, such as ‘informal work’ or ‘informal justice’. The aim is to reflect on the broad-brush, historical interconnections in the shaping of informalities, and highlight that law is the evidential centre-point, around which informality, and its racialised dimension can be observed.

As a disclaimer, despite the polyvalence of colonial legal orders around the world, this narrative aligns with Comaroff’s assertion that that they share commonalities in their purposes and effects (Comaroff, 2001), and for simplicity, uses the basic distinction between countries of the Global North and the Global South. Admittedly, this is a semantic criticised by postcolonial scholars of the ‘connected histories’ approach such as Gurminder Bhambra, however, the purpose here is to focus on the implication of colonial law’s exploitative function (of its many functions) for informality, without denying the contributions of the non-European world in the making of modernity, nor the reducing colonial societies into a binary between the coloniser and colonised.

Law and Institutions and Formality

Prior to delving into the core of the subject matter, it is worth defining the conceptual point of departure on formality, and why law may matter for informality. ‘Formality’ can be understood as ‘formal institutions’. In Institutions, Institutional Change and Economic Performance Douglass C. North defines institutions as the:

‘humanly devised constraints that structure political, economic and social interaction [consisting of] both informal constraints (sanctions, taboos, customs, traditions, and codes of conduct), and formal rules (constitutions, laws, property rights)’ (North, 1991).

In summary, North argues that formal institutions, are a prerequisite for market relations and economic growth as was achieved in Western capitalist democracies. ‘Formal institutions’, if broken down, consist of constitutions, contracts and regulations in the form of legal documents as well as conventions and forms of behaviour. This tangible and material aspect of formal institutions falls under the umbrella of the legal discipline, which views laws as social norms enforced by ‘socially authorised agents’ (Akers, 1965).

If laws, contracts and other legal documents form the basis of formal institutions, then it is worth outlining their roles in countries which struggle with the legitimacy and efficiency of formal institutions, namely the majority of the countries in the Global South. For this, some reflections on the uses of law and governance in the colonial context could be useful.

Trends in the former colonies: law as the civilising mission

Large swathes of the world inherited their legal systems from their colonisers, whether those from the common or civil law traditions. The large-scale transfer of laws was imposed on cultures with their own customs and laws, often leading to dual legal systems, which many developing countries have to balance today. Law, as the legal scholar Sally Engle Merry states, has ‘been described as the cutting edge of colonialism… It was central to the ‘civilizing mission’ of imperialism…’ (Merry, 1991). Presently, there about 150 countries with a civil law tradition and 80 which follow the common law (Maurya, 2021).

This civilising mission came in tandem with the rise of Mercantilism of the seventeenth century. According to Foucault, Mercantilism, was the first sanctioned effort of the ‘art of government’ – or administrative apparatus of the existing monarchies, actualised by the use of statistics and the theory of the contract (Foucault et al., 2009). Securing freedoms to trade as a technology of government was considered as the only dependable defence against a (food) crisis, forming the basis for neoliberal freedoms. However, as Alatout emphasises, ‘Foucault ignored […] the very condition of these freedoms: the unfreedoms engendered by colonialism’(Alatout, 2013, p. 104). Freedom, as a technology of government, secured by the theory of the contract as a legal mechanism, was produced in conjunction with and made possible by simultaneous unfreedoms of the colonised (Alatout, 2013). Similarly, Comaroff highlights that there is a persistent myth about the Age(s) of Empire -  that the modernity exported by Europeans was already highly developed and refined by the time it reached the ‘primitive’ peoples. Instead, he notes, it was ‘patently a work in progress, often more aspiration than achievement’ (Comaroff, 2001, p. 310), where colonised lands offered a kind of institutional laboratory ‘for the production of new forms of rule, new kinds of ruler’ (Ibid.) through administrative procedures situated in the law.

As a common example, Mercantilism governed Spanish colonial trade and commercial law, where land and resource expropriation as well as labour exploitation of native populations and imported slaves was the central objective of Spanish law, whose direct effects were experienced for at least until the 90s, such as in the case of land rights for peasants and the indigenous in Ecuador (Coral et al., 2021; Schmidhauser, 1992). In effect, the legal scholar Antony Anghie demonstrates how the sovereignty doctrine and the very foundations of international law, stem from the Spanish encounter with the native Indians, where their unlikeness to the civilised, ‘universal’ Spanish subject, makes them deserving of oppression (Anghie, 1996). Similarly, Mahmud explains how the modern law ‘was a critical facilitator of production and deployment of indentured labor from colonial India, and, generally of the coexistence of capitalism and un-free labour’ (Mahmud, 2013, p. 224).

The legal scholar Peter Fitzpatrick argues that the colonial encounter cemented legalism in European society, elevating law to the status of ‘myth’ – a god-endowed quality which could ‘mediate between and encompass law’s transcendent and terrestrial qualities’ (Fitzpatrick, 1992, p. 9). What was perceived as ‘savage practices’ of the colonised, served to justify European exceptionalism and the imposition of an authoritarian legal order in the colonies (Fitzpatrick, 1992). Law served as a tool of domination and repression of the less civilised, characterised by the slave owner Edward Long (1774) as ‘irrational’ and without ‘foresight’ (Fitzpatrick, 1992, p. 67). Similarly, John Stuart Mill, proclaimed that ‘despotism is a legitimate mode of government in dealing with barbarians provided the end be their improvement’ (Fitzpatrick qtd Mill, p. 108).

The colonial encounter had significant implications for modern notions of legal pluralism and informal, or non-state justice systems. Prior to colonisation, unwritten, customary law, such as in remote areas of the Global South, was a semi-autonomous social field, with an informal, ‘situationally informed vision of justice’ (Merry, 1991, p. 907). However, as Merry explains, customary law is a construction which emerged in the process of the colonial encounter, when with the help of local elites, the adaptable, unwritten legal system, was reshaped into a formal and written set of rules, enforced by a native court. With regards to Hindu law in particular, in an effort to find the language to rule the Indian subcontinent, the British administration mistranslated a set of sacred Hindu texts and manuscripts which ‘had the effect of converting Indian forms of knowledge into European objects’ (Merry, 1991 qtd. Cohn, 917). In effect, the very process of colonisation, necessitated the making of intricate cultures with tacit systems of meaning – legible for a European foreigner, available for economic and political calculation (Merry, 1991).

Implications for informality studies

A key concern for informality studies is addressing problems of unequal opportunity, cronyism, or clientelism which hamper effective economic, social and political development (Misztal, 2000). However, if informality is indeed the norm as posited by the Global Encyclopaedia of Informality, then colonialism may have widened the ‘formality gap’ by allowing colonisers to refine the art of formal institution-building. If Mercantilism and colonialism were the institutional and economic fuel of the ‘art of government’, it means that most of the world did not have the fortune to cement their know-how, laws and institutions of impersonal exchange via centuries-long, transcontinental management of the political and economic networks and exploitation of the subaltern. With this stance, I do not intend to minimise the agency of the countries of the Global South, but simply highlight unevenness of experience with the Global North, in terms of law, governance and formality.

Finally, resource extraction and land and labour exploitation enacted by laws, is a historical pattern  parallel to and constitutive of modern ‘racial capitalism’ which the scholars Tuckher and Anantharaman argue contributes to the large informal economy by justifying dispossession and neglect of those considered ‘uncivilised’, driving them into urban and invisible forms of labour. Whether it is Dalits in India, Afro-Brazilians or Central Asian workers in Russia, their informal work serves as an ‘invisible subsidy’, crucial for the reproduction of capitalism (Tucker & Anantharaman, 2020, p. 294). With these examples, naturally, processes of racialised capitalism are not exclusive to the post-colonial condition. In his essay on racialised capitalism, Satnam Virdee demonstrates how ‘racism formed an indispensable weapon in the armoury of the state elites’ (Virdee, 2019, p. 22), to contain class struggles to maintain social order and guarantee the flow of capital accumulation. Furthermore, Virdee argues that popular consent is fostered through hierarchical ordering and reordering of the multi-ethnic proletariat by state elites, which works as a sort of ‘divide and rule’ approach by facilitating indifference towards the ‘racially inferior’ fellow working class groups, undermining their unified mobilisation. Therefore, instead of rooting racism in the civilisational encounter between the Global North and Global South, he advocates situating it within the development of global capitalism to uncover multiple racisms including within parts of European working classes (Virdee, 2019).

Thinking historically with racial capitalism, ‘demonstrates the common patterns through which exclusion, exploitation and disposability are racialised processes’  (Tucker & Anantharaman, 2020, p. 293). This requires understanding that historical and modern processes of ‘formalisation’ (codifying and aligning practices with the law) (Tucker & Anantharaman, 2020), particularly conspicuous during colonisation, are tied to dispossession and reduction of modes of life to a dominant, elite-driven order, a phenomenon informality studies seek to address. Therefore, greater sensitisation to how past legal orders shaped the ‘ambivalences’ of modern informality by favouring a particular kind of elite, could help us in our practical mission to break the path-dependencies of modern formalisation.

Featured image

Library of Congress. (n.d.). Arrival of Cortés in Vera Cruz. Exploring the Early Americas: Exploring the Early Americas. Retrieved October 26, 2022, from https://www.loc.gov/exhibits/exploring-the-early-americas/conquest-of-mexico-paintings.html.

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