As I was writing this manuscript, the COVID-19 pandemic had been ongoing for two years. The pandemic has caused disruptions and uncertainty to the lives of millions of people around the globe. In this era of global mobility, the spread of the COVID-19 virus has been ironically facilitated by the very activities that have helped sustain our lives and how we relate to others in our communities: Working and commuting to work, doing business, shopping, meeting people, visiting our loved ones, and spending time together, among others. The contagion has been alarming and destructive: It has taken people’s lives and left many others with ongoing medical problems; the governments’ measures to tackle it, in the forms of restriction of movements that can go as far as lockdowns and curfews, have left millions without a job and without care, and have in turn created a plethora of economic, social, and mental health problems. The negative effects of the pandemic are also greatly differentiated, with people such as the elderly, the disabled, women, precarious employees, and minority communities among the most vulnerable, or most subject to abuse and impoverishment as a result of the governments’ measures to contain the infection. All in all, this pandemic has reminded us of how precious, as well as how precarious, our lives are, and how this kind of disruption has most often caught us unprepared, swerving and losing control over the journeys of our lives.
The kind of disruption and resultant uncertainty as told and experienced by my Vietnamese research participants are of a different nature and degree from those caused by the COVID-19 pandemic, but they also reveal striking realities about the vulnerability of life and people’s coping and resisting strategies amidst adverse conditions. In this book, I have attempted to capture such realities through the notion of precarity and analyze how they reflect and result from a combination of institutional and social processes, as well as individual practices. The low-income workers, retirees, and residents of Hồ Chí Minh city (HCMC) found themselves entangled within rules, structures, and power relationships that characterize the way their country is transitioning toward a market economy. The factory workers in the garment industry are those among the Vietnamese workforce who moved from their rural hometowns to benefit from and contribute to the growth of the light manufacturing sectors, mostly producing for exports. They earn their living in a competitive market environment with a wage system that rewards them just enough to survive. For the retired workers who used to work for a state-owned enterprise (SOE) in the pre-reform era which upheld the socialist social contracts, the freeze in their basic wage rise and the reduction of workplace benefits following the enterprise’s restructuring led to a sense of increasing insecurity and dissatisfaction at work, and discouraged them from making further contributions to the business where they had been working for a few decades. And finally, for the residents and their families now residing in peri-urban areas, many of whom came from other places to find work in the city, their daily struggle is mostly to do with the lack of economic and social stability due to marginalization in the land and housing markets.
How do these individuals overcome these difficulties and challenges, when their capability to do so is most likely constrained by limited economic resources, lack of voice, and a culture of law enforcement that is fraught with personalistic ties, informal brokerage networks, and corruption? As a Vietnamese saying goes, “in hardship there is wisdom” (trong cái khó ló cái khôn), for they have indeed come up with strategies and plans to cope with adverse conditions, or to pursue what they see as morally right, worthy, and deserving. Thus far we have learned that some of their strategies include early withdrawal of social insurance benefits, lodgment of early retirement on the basis of declining health, and house construction on cheap but nonresidential land in peri-urban areas. In pursuing these strategies, some people have turned to the law in a tactical way: They complied fully with the letter of the law whilst in fact trying to get around its restrictions through informal networks and negotiation. Some others exploited a gray area in the practice of the law that has been subject to abuse and corruption, and the rest chose to bypass or resist the law. Some people appreciate the benefits of the law, while most reject the law as corrupt, unfair, and discriminatory. Regardless of their different attitudes and actions toward the law, the outcomes of these actions have turned out to be disadvantageous, putting them in another situation of insecurity and adversity.
Through these participants’ stories, I have argued that an individual’s legal consciousness has to be understood in terms of their precarity, that is, their daily struggle to overcome uncertainty and achieve greater stability in life. Precarity influences the way people understand and perceive the law, which in turn shapes their engagement with the law, or resistance to it; however, their legal behavior inadvertently reinforces or sustains their precarity. This mutually reinforcing relationship between law and precarity conceptualizes the double-edged effects of law on everyday survival: On the one hand, law offers a window of opportunity for people to address and overcome their problems; on the other hand, it can disadvantage them further and make their work and lives even more precarious.
This Conclusion will first discuss three main contributions of this book to the law and society literature. The relationship between law and precarity advances our understanding of the mixed, paradoxical effects of law on the lived experiences of the rights bearers, as has been suggested in previous research on legal consciousness and legal mobilization. From the conceptual vantage point of rights and identity, David Engel and Frank Munger reveal the mixed perceptions of some of their research participants toward pursuing their disability rights in the workplace. Some professionals interviewed in their study fully understand and acknowledge the benefits of the American Disability Act upon their lives; however, they refrained from invoking those rights since they think that doing so might negatively affect their “independence,” the kind of identity that they wish to promote in their workplace (Engel and Munger, Reference Engel and Munger2003: 27). In her surveys and interviews with the factory workers receiving legal aid in China, Mary Gallagher Reference Gallagher(2006) also discusses the mixed experiences of her participants who came to learn about the law and then pursued litigation in the face of their workplace rights’ violation. These workers’ legal consciousness of “informed disenchantment” captures a stronger sense of awareness about their legal rights achieved through legal education, one that is nonetheless accompanied by “more negative evaluations/perceptions of the legal system,” the function of which has been stacked against the workers’ interests (Gallagher, Reference Gallagher2006: 785). Other research about legal mobilization in various issues and contexts also contains certain caveats about the positive or empowering effects of law to people who choose to invoke or pursue their rights. The difference of my study lies in the way it foregrounds the complex nature of individuals’ life circumstances and demonstrates how these circumstances both shape and are shaped by their engagement with or resistance to the law. The mutual relationship between law and precarity provides a new perspective into the enabling and sanctioning impacts of law on daily survival.
The line of argument pursued in this book also brings the notion of precarity into sharper focus in the broader sociolegal scholarship that concerns the plight of marginalized and disadvantaged citizens. If we understand precarity as a generalized state of existence that is insecure and uncertain, whereby an individual is vulnerable to material deprivation, harms, abuses, and injustices, then the way such a situation influences or shapes one’s legal consciousness has been empirically discussed or alluded to in this strand of literature. Because of their precariousness and disadvantaged condition, these groups of people tend to exhibit a type of resistant legal consciousness: They tend to see law as dominating and arbitrary and find ways to avoid or escape from it (Boittin, Reference Boittin2013; Levine and Mellema, Reference Levine and Mellema2001; Sarat, Reference Sarat1990). Yet the connection between law and precarity discovered in this study is far more nuanced and complex than has been recognized. In my research, the same people who see law as arbitrary, corrupt, and discriminatory also take advantage of its flexible and ambiguous rules, and tactically deploy the law to suit their life circumstances. My research also reveals the change in legal consciousness exhibited by the same individuals and how such change is intrinsically linked to their experiences and perceptions of precarity.
The findings of this book about laypeople’s uses and attitudes toward the law in Vietnam also contribute to broader understandings of the role and legitimacy of law in regimes under authoritarian or dictatorial rule, where the space for civil society or grassroots political mobilization has either been limited or suppressed by political authority. With this, I first wish to reiterate Kathryn Hendley’s Reference Hendley(2017) claim, in her study of law and daily life in Russia, that it is essential to shift our analytical attention away from the politicized version of law toward the commonplace images of law embraced by lay citizens. Research conducted in these regimes has either portrayed law as distant and detached from the way people make sense of their lives and solve their problems (Galligan, Reference Galligan, Galligan and Kurkchiyan2003; He et al., Reference He, Wang and Su2013), or projected a view of law as potentially useful and empowering, in allowing the citizens to raise their voices against injustice and pursue rights claims (Nguyen, Reference Nguyen2019). My findings provide a rather different picture of law. This book has demonstrated that, when faced with pressing needs and challenges in their daily life, people are willing to invoke and manipulate the law in a tactical way to solve their problems. Nonetheless, in doing so, they are confronted with the sanctioning and subordinating effects of law. These effects, mostly constituted by the ambiguity and arbitrariness in law enforcement, are vividly apparent in authoritarian or semi-authoritarian polities.
Addressing Precarity: What Role for the Law?
The second part of this conclusion summarizes and discusses the main factors and conditions that determine people’s decision to act upon the law when faced with precarity, and the aftereffects of their behavior. The factors and conditions that will be described play out to various degrees in different regulatory issues, and although my empirical investigation was located in Vietnam, the findings can be useful for future studies of law and precarity in other contexts.
(Mis)match between Law and Other Sets of Values and Understandings of Justice
A central element behind people’s decision-making relating to their survival strategies has been their daily needs: Feeding and sustaining themselves and their family, funding their children’s education, settling family debts, paying for the costs of health care in their old age, and having an affordable, stable place of residence. Most of the people articulate their needs without explicitly evoking the law or the legalistic discourse of rights. While some of those needs are pressing and urgent, others are linked to their broader struggle and aspirations to live and work in decency, and to achieve long-term social stability.
The decision of my participants is indeed underpinned by more complex moral judgments about what they believe as right, just, or appropriate. For the low-income factory workers discussed in Chapter 3, their decision to withdraw their pension early was justified by a strong sense of their social roles in the family and the moral obligations among family members. The workers consider their roles as mothers and fathers who are responsible for their children’s upbringing and education, or as spouses who care for the other’s wellbeing and are willing to shoulder the household’s financial burden. Furthermore, their backup plan to mitigate future risks that result from their early withdrawal of the pension also has a moral ground, whereby they expect their children to look after them in their old age, or their spouses to reciprocate for what they have “sacrificed” for the family. Because workers view their social insurance money as a form of savings which has been earned from their hard work, these moral justifications and expectations further consolidate their sense of entitlement to such money in times of hardship in order to fulfil their needs and family obligations.
The story of the retired workers, featured in Chapter 4, reveals the gap between the socialist values embedded in the employment relationships of the pre-reform era, and what the law delivered, or indeed failed to deliver, in their later years of work and retirement. The socialist values, which place emphasis on ensuring workers’ minimum living needs and the reciprocal obligations of the state and enterprise to the workers, have eroded, as the construction enterprise where they worked had its ownership and management transferred from the state to private capital. Workers’ decision to quit the enterprise and obtain early retirement was a reaction to their declining economic security and growing dissatisfaction at work, where the management failed to remunerate and reciprocate workers in a fair manner for several decades of service and loyalty. Moreover, there is an expectation from the workers that they should be able to claim the economic security that they deserve. Nonetheless, the law does not grant them a pension that fulfils their living needs and their ongoing or growing demands for health care in their old age. It does not reflect the socialist values that workers have held on to in making sense of their entitlements.
With regard to the low-income residents who encounter housing problems in Chapter 5, their justification for their decision on housing has nothing to do with rights or values encoded in the law. People invoke their right to housing based on a communal, shared ethics of survival, and their own sense of social stability and financial autonomy. While the Vietnamese Constitution grants citizens the right to have a legal residence, people living on a low income understand that such right can only be realized if they are rich and have personal connections. The sense of unfairness was felt even more strongly by the residents who were displaced because of the state’s infrastructure and development projects. These residents received monetary compensation that they thought fell short of the value of the land on which they used to reside, and that made it difficult for them to afford new, reasonably priced accommodation. People’s engagement in construction activities “in hiding,” which have no construction permit from the local authorities and take place on land not designated for residential purpose, reflects a shared ethics of survival in defiance of the law. In what followed, the state’s suspension of their construction and demolition of their houses on the grounds of legal violation are seen by the people as denying them their socially legitimate right to their very basic settlement.
Legal Ambiguity and the Prevalence of Informal Processes and Practices
The laws that regulate social insurance, pension, land, and housing are exposed to gaps and ambiguities that allow much room for the participants to maneuver their coping strategies. By legal ambiguity, I am referring to vaguely defined areas within the law, articles and terms that are subject to abuse, negotiation, and discretion in their implementation, and a degree of mismatch between law and its actual enforcement. Such ambiguity gives rise to informal networks, processes and practices, or aids with their operations, which stand at the blurred boundary between what is legal and illegal. It provides a window of opportunity for individuals to craft and plan their strategies to cope with precarity, including whether and how they interact and deal with law enforcement actors as well as the brokers and intermediaries who operate in the gray shadow of the law. But the individuals’ engagement with these informal actors, processes, and practices is not just instrumental; it is also underpinned and driven by shared and individual normative judgments.
The low-income factory workers who attempted to withdraw their pension early are perhaps those who benefit the most from the ambiguity of the law. The legislation of social insurance in Vietnam, while aimed at consolidating the contributory pension scheme and promoting employees’ long-term social security, is at the same time flexible enough to allow employees to obtain early access to their social insurance money, to be otherwise claimed as their pension when they reach their legal retirement age. Many factory workers, perceiving social insurance as part of the money that they earn and a kind of savings that they are entitled to, have in reality invoked the stipulation in the law that allows them to claim such money as a lump sum within one year after they quit their job. The only restriction that they face is the one-year time lapse, which is a disadvantage to those who are in urgent need of that extra money, or those who wish to continue earning money during the time they wait for the lump-sum claim. The workers in need have managed to get around this restriction, either by engaging in an informal practice of “trading” their social insurance books with a broker, or negotiating to work “casually” for their current employer. These practices comply fully with the procedure of the law but in fact undermine law’s authority. In my detailed investigation of workers’ early withdrawal following their informal agreement with their manager in a private garment company, workers alluded to the manager’s compassionate consideration of their life circumstances and their urgent, desperate financial need. This is despite the fact that the agreement resulted in an exploitative working arrangement between workers and manager, which the workers attributed to their own choices and family problems.
The retired workers also benefit from an aspect of social insurance law which grants them early retirement on the basis of their deteriorating working capability. It is required that eligible employees demonstrate a rate of working capability decrease of 61 percent through an officially approved health check. The rate depends on individual employees’ past medical records, and any chronic illnesses or occupational diseases and accidents, but the determination of such rate is entirely subject to the discretion of the doctors who are part of the board of medical examination. The former workers, through their social networks, became involved in gifting and bribery exchanges with the brokers, who then made arrangement with the doctors to make sure that the workers’ decline in their physical capability met the threshold requirement for them to retire. To the workers, these petty forms of corruption speak broadly of the ethical problems in the medical profession, especially in the public sector, where patients usually have to line the pockets of nurses and doctors to be able to receive quality care and treatment. In a similar way, the workers see the way doctors and their brokers make money out of the needs of disadvantaged workers, an amount that costs them more than what they usually earn in a month, just as immoral.
The low-income residents in peri-urban areas, who wish to have an affordable, modest house of their own, fall victim to informal networks and practices in a more significant way than benefiting from them. Networks of brokers who arrange for the purchase of nonresidential land that is then purportedly used for construction purposes, and the builders who arrange for house construction on those lands, have enabled low-income residents to settle down while the costs of land and housing in the legal market are almost prohibitive. These networks operate in collusion with the local authorities and exploit the residents’ need for cheap housing to make profits. As some of the residents were explicitly against bribing local authorities, they talked about these networks as necessary in enabling them to address their housing challenges, and some were willing to deal with them through verbal agreements. But the residents’ engagement with informal networks and practices turns out to be a double-edged sword, as it hinges upon fragile mutual trust or false promises, and is unable to save some of them from the local government’s punitive measures against illegal construction, including house demolition. The residents’ strategies to achieve social stability reflect their roles as victims of and participants in the complicated networks of corruption and patronage that have characterized the regulation of land and housing in peri-urban areas during fast-paced industrial development.
The Regulatory and Normative Role of the State
The third factor identified here that influences people’s struggles against precarity concerns the role of the state as the key actor of law enforcement. In the case of social insurance regulations, the role of the state manifests mostly in the way it promotes and shapes public discourse and discussion about the benefits of employees’ ongoing participation in the social insurance scheme, as opposed to claiming social insurance money as a lump sum to address their immediate needs. The way factory workers interviewed for this study acted upon their social insurance benefits has little to do with this official discourse, and was determined mostly by their relationship and negotiation with their employer. With regard to the retired workers, there is an expectation that the state will fulfil its moral obligations to the workers in their retirement. Such expectation influences their decision to retire early and claim their “pension booklets,” the individual records of one’s pension benefits and receipts, which the workers spoke of as rewarding and symbolic of their decades-long labor.
In the context of housing and construction in peri-urban areas, the state has played an active role in creating and perpetuating the ambiguous regulatory space in which the residents’ coping strategies unfold. The residents’ decision to engage in illegal construction activities has been mainly driven by an expectation that the state will accommodate their survival needs and desire for stability, and thus will be lenient toward their decision to build their own houses in nonresidential land without obtaining a construction permit. Such an expectation reflects the broader manner of law and policy practices at the local level, which has allowed much scope for flexibility and negotiation between the citizens and the state through patronage networks. It also reflects recent, frequent changes in the regulation of housing and construction that legitimate already illegally built establishments and allow them to exist. Nonetheless, at the same time, the state also exercises its arbitrary power when it comes to punishing illegal residences, justifying such punishment in the spirit of its objective to restore order in local construction activities. The violent and arbitrary measures taken against the very basic and modest houses of low-income citizens were viewed by the residents as going against the state’s official rhetoric of taking care of the people, especially the poor. To one of the residents of families with past wartime contributions, these measures betray the traditional moral value of reciprocity.
Law and Precarity in a Global Context
The sociolegal perspective developed in this book contributes to advancing the broader research agenda on precarity in a global context. Since precarity is relational in the sense that it varies across regions and nations and is an outcome of the contestation and negotiation between different state and nonstate actors (Lee, Reference Lee2019), it is important to situate individuals’ experiences of precarity within the broader institutional structures and processes, as well as the opportunities and constraints that they offer and impose upon individual lives. A low-income factory worker in a place that allows only one state-affiliated trade union like Vietnam might take a rockier road to contest the increasing precarity of their employment, compared to a similar employee working in a multiple-union system, such as Indonesia. Of course, the reality of precarious workers’ mobilization for their rights in these places is usually more complex than such a simple comparison. The point is, since the notion of precarity can travel across countries and regions, and the everyday operation of law everywhere is always ambiguous, arbitrary, and subject to abuse, a sociolegal perspective is useful and applicable to understanding the nature and dynamics of precarity in different contexts.
Thus far, while a rich body of research from different disciplinary perspectives has explored how experiences of precarity unfold through institutional processes and individual practices, only a few studies attempt to flesh out the multiple, intricate ways in which law contributes to shaping the nature and dynamics of these experiences. In her research on people-smuggling crimes committed by Indonesian fishermen from Rote Island, Antje Missbach Reference Missbach(2016) debunked the assumption about these people making money and profits out of breaking the law. These fishermen, being unable to earn their living from traditional fishing activities while viewing other employment options just as precarious and dangerous for people with no or limited skills such as them, found a way out of poverty by taking part in smuggling asylum seekers across the water between Indonesia and Australia. Consequently, they were charged and imprisoned under Australia’s migration law. Portraying their lives as “hyper-precarious,” Missbach deftly shows how these people are caught between impoverishment due to limited and shrinking viable options to earn their income legally in their country, and the criminalization of alternative ways to make a living (rather than profit) such as people smuggling (Missbach, Reference Missbach2016: 754). Indeed, the legal sanction against people smuggling has presented an economic opportunity for these former fishermen – the money that they were able to earn in Australian prisons, such as for helping with housekeeping tasks, and then remit back home, could help sustain their family (Missbach, Reference Missbach2016: 751). But the likelihood of earning money in jails and remitting back home has been reduced due to recent forceful changes to Australian regulations concerning the financial issues of jailed people smugglers, coupled with the Indonesian government’s legal crackdown on these kinds of transborder criminal activities (Missbach, Reference Missbach2016: 766–9).
Another article by Indre Balcaite Reference Balcaite(2019) on the precarity of a minority ethnic group of Burmese people, the Karen, provides some interesting findings about these people’s agency in the face of political persecution and displacement. These people, in their migration and resettlement in Thailand, managed to navigate and get around the complicated webs of regulations to move away from their “de facto statelessness” (Balcaite, Reference Balcaite2019: 64) and obtain residency and citizenship. The article richly shows how ambiguous law enforcement and the establishment and operation of informal, social networks along the Thai–Myanmar border contribute to these Karen people’s acquisition of new residency status, albeit one that does not provide full legal protection, thus leaving them still somewhat vulnerable (Balcaite, Reference Balcaite2019: 78–9). Even though this article comes from a conceptual vantage point of citizenship regimes, it, in a similar way to my study, reveals how the law subordinates and constrains these people, who, however, can manipulate its gaps and ambiguities to move up the residency and citizenship ladder. Put together, the methodological assumptions and findings by the two studies just mentioned, in bringing in the role of law to the analysis of precarity, are comparable to those adopted and advanced thus far in this book.
The conceptual framework developed in this book will benefit future analysis of law and precarity in two ways. First, it draws greater attention to the normative dimension of precarity and people’s struggles against it. The normative dimension captures the way people perceive their precarious circumstances in terms of their roles and obligations within the family and communities, and in terms of their expectations of the state and other actors with whom they interact in commonplace settings. Such an approach shifts the predominant focus of most analyses of precarity from economic survival in a neoliberal context to the moral complexities that underpin people’s experiences and their decision-making. To be clear, most studies on people’s engagement in illegal means for economic survival have used the term “licitness” to suggest that, despite their illegality, these activities are deemed as socially right and acceptable (Missbach, Reference Missbach2016: 754; Van Schendel and Abraham, Reference Schendel, Abraham, Schendel and Abraham2005: 18). However, the notion of “licitness” refers to a collective view of social fairness or a communally shared ethics of survival, and tells us little about individuals’ moral judgments and justifications for their decisions, as well as the sets of ideologies and values underpinning them. In addition, a better focus on the normative dimension of precarity allows for further evaluation of the legitimacy of the institutional structures, processes, and actors that contribute to making people’s lives worse or better.
Second, a sociolegal approach is able to generate important insights into the multiple shades of law in the lives of precarious people. Thus far, most research on legal precarity has portrayed the law as constraining and subordinating, or as part of the broader set of institutional structures that make people’s lives and work insecure and vulnerable (Bal, Reference Bal2015; Pang, Reference Pang2019). Existing literature therefore tends to focus on people’s measures and attempts to resist the law, through legal violation or avoidance, in their survival strategies. A deeper, ethnographic investigation of law, both in its substance and operations, can tease out different kinds of attitudes of and engagements with the law, and the multiple ways in which law may determine or influence people’s attempts to overcome precarity. Viewing law as part of the broader social process that constitutes, sustains, or mitigates precarity will pave the way for further investigation and conceptualization of how potential benefits or negative effects of the law can be mediated by individuals’ social relationships and interactions.
After all, the disadvantage, and even destruction, that my participants have experienced as a result of their engagement with, or resistance to the law, is not a dead end. These participants have continued to find ways to mitigate their precarious circumstances and the anticipated risks of their actions, as such trying to reduce the negative effects that the law has wrought upon their lives. As I mentioned briefly in the chapters, since employees under labor contracts are entitled to public health insurance, which employers and employees both contribute to, most of the factory workers who chose to end their labor contracts (in order to withdraw their social insurance money) planned to pay for the public health insurance on their own. The free or discounted medications, health checks, and hospitalization that they are entitled to with the public health insurance will be useful, to some extent, in cushioning the economic burdens in the near and far future. The retired workers who find themselves well enough have continued to work casually and informally, as security guards, cleaners, or small traders, to meet their household and medical expenses. The residents whose houses were destroyed due to illegal construction have managed to rely on support from their neighbors and relatives to get over their losses, move to rental accommodation, or find a temporary place to stay. Regardless of their different circumstances, life chances, and personal capabilities, most participants shared with me how they are “taking life as it comes” (tới đâu hay tới đó). They see their future as one that is uncertain, murky, and beyond their control, but at the same time, one that does not rule out the possibility of things lightening up, of betterment.
