International Labor Law and its Others: Governance by Norm Versus Governance by Knowledge

Domestic laws are shaped by myriad global governance projects, which may attract the support of different organizations, promote contrasting socioeconomic visions, and operate at diverse levels and scales. Beyond differences in their whos, whats, and wheres, governance projects are also differentiated by their hows: they may embody different ways of imagining relations between order, authority, and legitimacy; operate through different styles; or deploy different technologies. International legal regimes, which function through a logic of governance that applies norms sanctioned by the political consent of states, have long operated alongside “systems of management and control” drawing their legitimacy from claims of “objective, disinterested scientific knowledge.”

employing workers. 9 The indicators are based in part on whether national law guarantees specified rights to certain actors and in part on the estimated time, cost, and number of steps involved for a business to conduct a given legal or administrative task.
The project's hallmark is its ranking of countries by a weighted aggregate of these indicators. Updated rankings and scores are disseminated through annual reports, which also describe current methodologies, explore thematic case studies, and elaborate on project rationales. The reports make the tacit message of the rankings explicit: reallocate legal rights and reform legal practices to push each indicator score as high (or in some cases as low) as possible.
The project's influence has been remarkable. 10 National political leaders, including heavyweights in Russia, India, and the United Kingdom, have made the Doing Business rankings a key benchmark for reforms. 11 More than fifty states have government units mandated to respond to the project. 12 Their efforts have had striking results. 13 Georgia climbed the ranking from one hundred to eleven between 2004 and 2011. 14 Between 2016 and 2018, China moved from seventy-eight to forty-six, while India jumped up an astonishing fifty-three spots, to fifty-seven. 15 Qualitative studies tracing national reform processes 16 have given the lie to perennial concerns that responses to Doing Business are no more than paper-pushing and hot air. 17 Sam Schueth, for example, has closely traced how Doing Business drove mid-2000s reforms in Georgia that reshaped not only corporate law and property, customs, and tax administration, but also labor law. 18

Governance by Norm and Governance by Knowledge
How does the governance logic of the Doing Business project differ from that of international labor law? Doing Business is framed as prescriptive rather than embodying a "normative" obligation with moral or legal force. 19 It purports to offer a technical means to an end desired by a unitary, domestic policy actor, not a norm of conduct that balances various social and economic interests. 20 Its authority is grounded in the epistemic validity of (quasi) objective data and statistical science, not the legitimacy afforded by an appropriate political process. 21 As stated in a high-level review that the Bank commissioned in 2008, the project is "anchored in research that links characteristics of a country's business environment … to macroeconomic outcomes." 22 Specifically, the project draws much of its authority from empirical data correlating indicator values with economic benefits, and on (ultimately flawed) statistical methods that exploit differences in national "legal origins" to characterize those correlations as causal. 23 The most palpable contrast between Doing Business and international labor law lies in their divergent socioeconomic agendas. The Doing Business approach to labor markets is consonant with a broader "flexibility" agenda aggressively pursued by the World Bank, the International Monetary Fund, and the Organisation for Economic Co-Operation and Development. 24 In line with this understanding of flexibility, 25 the project's Employing Workers indicator embodies a deregulatory approach to labor markets that, in practice, shifts significant power over working conditions to employers. 26 In its early years, the indicator was used by the Bank as a template for numerous Bank-sponsored national labor law reforms. 27 The labor dimensions of Doing Business met substantial challenges, on multiple fronts. 28 The project's entanglements with the broader flexibility agenda make it hard to isolate political responses to the former from broader resistance to the latter. 29 Nonetheless, a number of actors expressly targeted the labor dimensions of Doing Business, including, notably, the ILO itself. 30 While ILO interventions deployed numerous critiques, its approach can be characterized as a synthesis of two stratagems. The scientific stratagem critiqued various "methodological and conceptual problems" with the Employing Workers indicator and its subcomponents. 31 Those critiques suggested that the indicator did not  adequately reckon with interactions between different labor market rules, appreciate the importance of law in action, or account for the social and economic benefits of labor market institutions alongside their economic costs. The legal stratagem turned on claims that the reforms promoted by Doing Business conflicted with the spirit of international labor law, and the letter of certain ILO Conventions. 32 The legal stratagem combined that critique with an appeal to international legal functionalism and interorganizational comity; the watchword was "policy coherence." 33 Francis Maupain's reading is paradigmatic. Invoking the concept of international legal fragmentation, 34 Maupain characterizes incompatibilities between ILO activities and those of international financial institutions as a matter of reconciling conflicting organizational mandates. 35 His analysis interprets the World Bank's charter as a constitutional text and its approach to labor markets as doctrine. 36 His reading of Doing Business is thus framed as a case study in the legal subordination of the ILO's social objectives to the Bank's economic functions. 37 These two stratagems had a number of shortcomings. The issues raised by the scientific stratagem, though crucial for theorizing labor institutions, had little critical purchase on Doing Business methods. The Doing Business indicators are not based on "assumptions" about the effect of regulations, 38 but on causal claims tied to statistical analysis of empirical data. Balancing economic and social ends is incompatible with a methodology concerned with tying particular actions to particular effects, which is likely why the invocation of international labor law standards and their purposes seems so misplaced in the research that grounded the scientific stratagem. 39 The legal stratagem, by contrast, did not fully appreciate the strategic context. There is a patent "functional incoherence" between the Employing Workers indicator and international labor law. Yet it is hard to pinpoint why this tension should matter to proponents of Doing Business. Unlike the application of trade agreements by a WTO dispute panel, the methodology, scores, and rankings deployed by Doing Business are not an exercise in legal interpretation. 40 The "doctrine" the project promotes is not legally derivable from the World Bank's mandate. In fact, it is only loosely tied to the Bank's legally-granted powers. 41 Stated differently, the project does not express a norm that might notionally be integrated into the broader international legal field, but a technical claim about how to achieve an end. 42 The outcome of the ILO's intervention appears to be a good-news story for international "functional coherence." In 2010, the World Bank quarantined the Employing Workers indicator from other parts of the report, and prohibited its use in other Bank activities. 43 Although funding provisos by the U.S. Congress were the proximate cause of these changes, 44 a broader view suggests that the shift resulted from an amalgam of international norms and local activism. 45 Closer scrutiny reveals unintended, even perverse effects. The formal neutralization of the Employing Workers indicator may have further reduced the visibility of World Bank strategies driving the flexibility agenda. 46 Moreover, ILO interventions were silent on the most salient fact about Doing Business methodology: the fundamental weaknesses in the modes of causal inference that support its policy guidance. 47 Worse, those interventions were expressed in diplomatic prose that signaled the ILO's approval of the project's overall design and aims. 48 As a result, the ILO may have ultimately bolstered the project's legitimacy by chasing small changes to what gets measured, rather than fundamentally challenging how the project uses those measurements. Likewise, the ILO's appeals to international legal coherence may have given an air of legal authority to models and standards that are in fact grounded in little more than mechanical objectivity and a rote showing of technical rigor. 49 No binding norm regulates the relative priority of the international system's social and economic goals. This sometimes produces policy incoherence. But reading every conflict between international institutions as a problem of normative ordering risks lending legal legitimacy to bad science. 50 Conclusion Global governance projects depend on different permutations of knowledge, power, and action. Such differences are the key theme of recent scholarship on governance by indicators, 51 of which Doing Business is an archetype. 52 Governance competitors to international law, however, are not limited to projects that rely on the ostensible objectivity of numbers. For example, much of the technical cooperation conducted under the banner of development during the last seventy-five years, including by the ILO, 53 has drawn its power more from the epistemic authority of experts than the political legitimacy of its origins. It may be more useful to think in terms of this essay's distinction between governance by norm and governance by knowledge.
The power of Doing Business is of continuing concern for those willing to invoke "the spirit of international labor law." For example, the project continues to promote reforms on business registration and property administration that exacerbate the exclusion of informal workers. 54 For those concerned with the traditional subjects of international labor law, and those who for too long were its "others," there is value in attending carefully to the "hows."