From Festschrift for Carol Greenhouse

Emily Grabham

My situation in the field was not a difficult one by any objective standard. The demands I felt were the claims of its inherent ambiguities—some of which involved genuine intellectual problems, even if they felt like impasses at the time.

—Carol Greenhouse (in Halliday and Schmidt 2009, 114)

Reflexivity in anthropological research has many shades of meaning, but I have found it useful to explore where one might find moments of reflexivity in what Carol Greenhouse has termed the “everyday realities (including crucial everyday ambiguities) of people’s lives” (Greenhouse et al. 2002, 6–7). These ambiguous realities often accompany, or translate into, ambiguities in ethnographic research. As researchers, we might experience moments of questioning, where research throws up distinct epistemologies or objects that have few obvious commonalities beyond a resonance—a hunch that something is at work or needs more work from us. When ideas simultaneously feel like they’re connected but also disjunctive, something is driving us, and the process of figuring it out is often non-linear and not strictly rational. The findings from our fieldwork are ambiguous or incommensurable, and we are left somewhere in the middle, trying to figure it all out.

It is in coping with such dilemmas that I have found Greenhouse’s work both moving and instructive. When reflecting on what it is that characterises the “ethos” of Greenhouse’s work, it is worth returning to her first monograph Praying for Justice (1986), in which a study of dispute resolution in “Hopewell” Georgia led to rich insights about the social lives of Baptists and their approach to conflict. The core insight that, for Baptists, “Every moment is created by God, and every situation in which individuals find themselves [is] created by God for each one personally,” took Greenhouse far from the research she initially expected to do, and leads the reader far from what they might have expected from the study (Greenhouse 1986, 77). Just some examples of insights from the book include the following: because Baptists in Hopewell conceptualized conflict in terms of salvation, cases and adversarial conflict were “extraneous” to their experience of conflict; Baptists in Hopewell experienced relationships with others not through ideas of negotiation but through the perfection of individual roles in relation to God; conflict was located among the unsaved; anger led to intense personal dilemmas instead of interpersonal conflict (Greenhouse 1986, 118). This led to a situation where it had become normal, in “Hopewell” at the time of the study, for certain historical conflicts to be organised out of common practices of memory, leading Greenhouse to the insight that ahistoricism had been created through the particular approach to conflict forged by successive generations of Baptists in the local area. Reflecting on her study later, Greenhouse stated that “Allowing my circumstances in the field to pull me into another sense of the project was the solution to a problem, not a problem in itself” (Greenhouse in Halliday and Schmidt 2009, 111).

In Greenhouse’s research, ambiguity suggests not only the solution to research problems, but often also to a reconceptualization of the research itself. In registering and working through the wider scholarly effects of Greenhouse’s capacity for finding new “senses of the project,” I want to tell a story about how I started out researching the lives of women in precarious work and found myself enchanted with legislative drafters. The story bugs me because I am a feminist legal scholar and I would have expected the passion in my work to be largely or mainly directed towards the lives of women, not on “more of those lawyers.” I’m telling the story because the invitation to reflect on reflexivity has encouraged me to get to grips with my disobedient research attachments, but also because the story is about grappling with ambiguous or incommensurable fieldwork observations. In this instance, a set of encounters with working women led me via a circuitous route to interview legislative drafters in the Cabinet Office, the home of the UK’s Office of the Parliamentary Counsel, and into a much longer term, and expansive, preoccupation with the process and meaning of legislative drafting. The direction my research took has helped me to understand how disturbing reflexivity can be, how starting with the “everyday ambiguities of people’s lives” can lead researchers away from the people with whom we have spent time, and how all of this inevitably intensifies researchers’ dilemmas about who and what “should” be the proper focus for our work.

In 2016, I was working on a project about the experiences of women in precarious work who also have care obligations—for children, family members and others.^[1] The idea behind the project was to understand how these women managed care alongside work—how they understood and created meanings around law, the extent to which family-friendly employment rights appeared in their lives, what other strategies these women used, and so on. Many employment rights in the United Kingdom are available only to the distinct legal category of “employees,” and family-friendly rights are often restricted to employees who have been working for the same employer for twenty-six weeks or more, the so-called “twenty-six week qualifying period.” The women I interviewed did not know whether they were employees, and they would rarely mention their care obligations to employers or request flexible working because they had an immediate need to be given further shifts in the coming weeks. They often did not think that the type of work they were doing allowed them any room to negotiate flexibility. As this prison-based teacher put it: “If you’ve got caring responsibilities and you are on a zero hour contract, companies aren’t going to want to know.”^[2]

In the United Kingdom, the “right to request flexible work” is one of the most well known socio-technical solutions to the dilemma of ensuring that unpaid care continues alongside women’s increased participation in paid work. My interviews led to a preliminary observation that this right was not only designed for standard employment (a point obvious from the face of the law), but also that its underlying ethos of flexibility could not easily be mobilized in the context of precarious work. Flexibility modulates a career already underway or allows discrete episodes of leave that leave the status of a permanent worker unharmed. By contrast, my research participants had little predictability and, as a result, they had an overwhelming need at any point in time to secure the next shift. Managerial control and discretion conjured disorderly careers and volatile finances in these women’s lives. In such a context, requesting flexibility made little sense when the work itself was already structured to be uncertain. I found that ideas of “fate” and what Neferti Tadiar would call “fate-playing” were more important and powerful to them than concepts of “flexibility” (Tadiar 2012).

Fate is complex, however, and I began to wonder how many guises it could take. Fate captures the heated sense of doom felt by women who were financially struggling and angling for more shifts, but it popped up at other points in women’s narratives—for example, when they reflected on whether a decision made quickly years ago to take precarious work would prevent them from ever getting regular work. Fate was co-articulated with fear and regret, but also with (constrained) agency. Women’s accounts of taking on precarious work very often emphasized lack of choice, through unavailability of other work in economically deprived locations, through needing to “get a foot in the door,” through conditions imposed by welfare benefits, and always for reasons relating to financial necessity. One dilemma came up again and again in women’s accounts: they talked about a feeling of “newness” at the outset of employment and long after. This “newness” feeling accompanied dilemmas about whether to disclose a care responsibility to an employer. Newness and disclosure (or lack of it) were co-articulated and undermined any rational individual sense that work contracts were negotiated with respect to women’s experiences of care and social reproduction. This is not necessarily surprising, given what we have learned from decades of feminist critiques of contract law and labour regulation (Conaghan 2017; Fudge 2014; Mulcahy and Wheeler 2005). However, I was surprised at how long into the employment relationship women reported this feeling of newness, which tended to emerge again whenever a care crisis emerged and accompanied a sense that they were on the “back foot” in terms of negotiating around work with the employer. As a gas station worker observed: “When people go in wanting flexibility because something has happened and they now become a carer, they are very emotional. It’s a very emotional time. They might say yes to something when it’s not what they want or what they need, because that’s what the boss says.”^[3] The point at which women needed most to negotiate was the point at which they were often very distressed and under considerable pressure. Somewhere at the intersection of managerial control, emotional distress, and this oddly prolonged feeling of “newness,” women experienced fateful feelings rather than the orderly promise of flexibility.

I continued with legal research all the while. The architecture of family-friendly rights in the UK is such that many exclusions on rights are not contained in primary legislation but in secondary legislation. The point here is not (just) one of legal visibility; this is also a point about what the location or expression of exclusions means for understanding their legal form and meaning. Provisions in secondary legislation can be more easily altered by a Secretary of State without as much recourse to Parliament in most circumstances (Grabham 2016b); they are often viewed as particularly responsive, even if they are in fact rarely changed. Among the more powerful restrictions on family-friendly rights is the twenty-six-week qualifying period, which applies to the right to request flexible working. This means that as currently expressed, working women need to complete twenty-six weeks with the same employer before making a request, thereby creating an initial period of lack of protection even for those workers who are lucky enough to otherwise qualify for the right.

After hearing women talk about feeling “too new” to ask for flexible work, I began to feel a resonance between the qualifying period and the “too new” feeling. Was one the ghostly analogue of the other? Were the prolonged feelings of newness an expression of something inchoately known or transmitted in the working relationship, through managerial control perhaps, but now supported by the qualifying period? To go too far down this analytic track would be to risk theorizing women’s subjectivity “in ways that … simply replicate the discursive templates of neoliberalism’s ideological charter,” as Greenhouse has put it, writing about the challenge of conducting ethnographies of neoliberalism (2012, 7). However, I wondered, did the people who drafted the qualifying period draw on similar knowledges to those expressed by women in precarious work, meaning that the qualifying period reflected wider understandings about how long it should take for new employees to “earn” the right to negotiate, for example? Take, for example, the following two comments, the first by a temporary worker in higher education, and the second by a legislative drafter in the Office of the Parliamentary Counsel in London:

The [employer] has got brilliant policies, but the problem was, because I was only six months into a new job, I didn’t feel I could make the most of the policies.^[4]

If somebody said, “Well, we expect the qualifying period to be two weeks,” I would probably go back to them and say, “Well, how would you know? Somebody’s hardly in       the door, how would you know when they had started?” But twenty-six weeks, you’d know if someone was there or not. It would be much more easy to prove.^[5]

The remarks from the temporary worker and the drafter evoke a sense of the worker having to prove herself in employment. But this means something very different to the worker, who expressed in her interview a sense of fear, tentativeness, and not wanting to “rock the boat,” than the drafter, who was interested in establishing proof of the fact of employment as well as loyalty to the employer.

I have written elsewhere about the logic of using time to modulate access to employment rights (Grabham 2016). No matter what justification is given, using a qualifying period of twenty-six weeks to restrict the right to request flexible work is just as much a matter of legal form as it is a substantive policy debate. When I asked legislative drafters about the time-related exclusions on family-friendly rights, they referred to choosing the time period of twenty-six weeks in order to make qualifying periods “mesh” with other similar qualifying periods in the field of family-friendly rights, rather than wider policy debate. A similar approach can be found in statements in the House of Commons Select Committee when the qualifying period was first introduced into the draft legislation on flexible work. Qualifying periods can be understood, in Alain Pottage’s terms, as legal “recipes,” which conjure time and legal form as inextricable (Grabham 2016, 401; Pottage 2014, 152–153). This underlines the importance of legal form to wider understandings of time, which are often enunciated and re-created at least in part through legal knowledges and which reflect struggles about social agency (Greenhouse 1996, 2014a, 2019).

Form is relevant here, because in these contributions, we have been asked to reflect on the “discursive knot connecting law-making and law-performing.” If the women I interviewed were performing or experiencing a legal knowledge about an experience of time—“newness”—then scholarly inquiry can also ask how drafters “made” legal knowledge (and time) through qualifying periods. In this way, thinking about a discursive knot also helps me think about some of the changes in approach I have made in my research. The move to research legislative drafting, in particular, could be seen to parody the “black letter” approach to law in its dogged attention to the writing process and the legal text. Indeed, for many years prior to this research, I had turned away from legal text to try to also register the social meanings or relationships that create wider, vernacular understandings of law. Such is the hope of many socio-legal scholars or legal anthropologists. With research on qualifying periods, I began to ask myself what it might mean to turn back to the text. Legislative drafting is writing as much as law-making: it’s creative; it requires legal problem-solving; it requires attention to syntax, pace, and expression, and to legal problems, propositions, and risks (Bowman 2015; Grabham 2016; Xanthaki 2014). Drafters, who are largely hidden from public view, produce statutory text to instructions from government lawyers, and then put the text through rounds of revisions before it’s debated in Parliament (Greenberg 2011). In my research on qualifying periods, I found that legislative drafting creates dilemmas for researchers that traverse discourse, law, meaning, and power in ways that raise questions about how we understand the performativity of law. Through the process of interviewing drafters about qualifying periods, I became interested in how these peculiarly powerful clusters of words are created. When we think about the “agency of legal form,” what is happening when government lawyers create law through statute (Riles 2016, 808)? What skill and craft do drafters cultivate? What values do they hold and attempt to transmit? Do they think of their work as creative, as such?

Statutory texts are simultaneously documents, legal forms, laws, and also something in between: a particularly performative type of text, a text-y legal performance. And there are many ways in which an ethnography of legislative drafting could explore wider understandings of meaning, subjectivity, and social action. These are the areas that research on qualifying periods have led me to study.

First, and perhaps most obviously, legislative drafting can be analyzed as a type of technical legal expertise (Riles 2005; Sylvestre et al. 2015; Valverde 2009). Studies of how legal technicalities are created and used have focused on a wide range of legal actors, such as “back room” collateral experts in the banking sphere, International Labour Organization bureaucrats, and administrative court judges (Kawar 2014; Latour 2010; Riles 2011). Yet with some notable exceptions, there is much less anthropological scholarship on the work of government legislative drafters in a wide range of jurisdictions, in both civil and common law (e.g. Craven 2004). Asking questions about the cultivation and significance of legislative drafters’ work as a distinct type of technical expertise can animate debates about the meaning and creation of legal technicalities and how they “travel” into social and political life through use and interpretation (Milyaeva 2014).

Second, legislative drafting creates statutes as powerful legal documents with a specific visual appearance, which are widely published and consulted across a variety of platforms. Legislation takes form through processes of documentation, and as such, the study of legislative drafting could draw on research investigating legal documents as “artefacts of modern knowledge” (Cabot 2012; Höhn 2013; Riles 2006). Ethnographic research could usefully begin inquiring into how drafters approach the “legal aesthetics” of legislation (Mulcahy 2015; Perry-Kessaris 2014). Focusing on how legislation takes shape on the page, the visual power of punctuation, drafters’ practices of revision, and the effects of software and internet publication on the process of drafting, an ethnography of legislative drafting could contribute insights about the appearance and publication of legislative texts to academic debates in legal and visual culture (Jacob 2017; Sullivan 2013). As one drafter put it to me: “We need to stop thinking about it as words on a paper document.”^[6]

Third, legislative drafting is an archetypal process of law-making; it adopts precise techniques of written expression that can be analyzed for their creative qualities as much as their legal effects. Analyzing the material practices associated with legislative drafting—such as circulating or revising—can shed new light on how law comes into being, and how it comes to be viewed as a specialized area of social and cultural knowledge (Greenhouse 2014b; Latour 2010; Pottage 2012). Controversies and deliberations over form that are found in the work of drafters could be brought into productive conversation with debates about law’s “non-representational” functions: the extent to which law can be understood to have wider social effects (Riles 2005).

Why perform such an inquiry about drafting in or after a study of the experiences of precarious workers? One answer might be that women’s experiences of “newness” led me to research the twenty-six-week qualifying period, with women as the law-performers (on one side of the discursive knot between law making and law performing) and drafters as the law-makers (on the other). However, if there is a knot, it is uneven and badly tied: women often did not know about the qualifying period and would have been excluded from rights on other grounds. Also, the women did not heed or interpret the qualifying period in any direct sense; they did not “perform” law in the terms on which the law enunciated itself (this is not a surprising observation). Indeed, these women not only expressed concern about disclosing a care burden at work, but they often actively refused, possibly guessing that being transparent about care put too much knowledge in the hands of the employer. As such, their braided experiences of “newness” and strategic silence evoke what Greenhouse has referred to as the tendency of individuals not merely to refuse the “terms and gambits” they are offered in conditions of neoliberalism but also to “withdraw into another sphere, markedly social and markedly not individualistic: a circle of friends or colleagues, family” (2012, 8). Women’s experiences of bartering shifts and relying on networks of family and friends for care evidence the extent and effects of such tactics.

What then of the other side of the knot, the making of law? That is where, as I have suggested above, there still remains much to be observed and analyzed amongst the processes of drafting, writing, deliberating, and revision that drafters perform on a daily basis. And the point that I want to make here is that the knot, which is productive, frustrating, and avoidant of any fixed or settled meaning, connects things and concepts which are ambiguous and incommensurable. In the years that have followed the interviews, I have tried many times to understand how women’s experiences of “newness” relate to, or can be explained alongside, the qualifying period, and I still cannot fully explain it. Newness is present in women’s lived experiences. They feel it at the outset of a new job, and possibly as a result, they often refuse to disclose a care obligation to their employer. Newness is also encoded in the secondary legislation through an expression of time that has more to do with formal consistency across a body of legislation than it has to do with objective policy decisions. If newness arises as an object of research, then perhaps we can see it operating in different genres across distinct legal experiences and locations, haunting the statutory text as much as shimmering in the strategic silences of working women. And at this juncture, I am reminded of Greenhouse’s suggestion to allow “my circumstances in the field to pull me into another sense of the project,” and I am left with a new project on legislative drafting.

Emily Grabham is Professor of Law at the University of Kent, UK. Emily’s research focuses on time and temporalities, labour regulation, and feminist legal theory. Her monograph – Brewing Legal Times: Things, Form and the Enactment of Law (University of Toronto Press, 2016) – was awarded the 2017 Socio-Legal Studies Association Legal Theory and History prize. With Dr Sian Beynon-Jones (sociology, York, UK) she led an interdisciplinary research network on the relationship between law and time between 2015-2017, funded by the UK Arts & Humanities Research Council. Their co-edited collection, Law and Time, was published by Routledge in 2019.

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 Notes

^[1] The bulk of this research was carried between 2013 and 2016 out as part of a study funded by the UK Economic & Social Research Council: Balancing Precarious Work and Care: How Well Does Labour Law Respond to Women’s Changing Work Patterns? (ES/K001108/1). Names of interview participants below are pseudonyms.

^[2] Interview with Sandy, retail worker.  May 2016. Ebbw Vale.

^[3] Interview with Sam, retail worker. April 2016. London.

^[4] Interview with Dipika, higher education worker. August 2015. Milton Keynes.

^[5] Interview with legislative drafters. September 2015. Office of the Parliamentary Counsel, London.^[5]

^[6][6] Field notes. June 12, 2019.