Abstract
We style ourselves as liberal polities and law purports to sustain liberal values. It does not claim to maintain and perpetuate capitalist goals as such. Yet, its adherence to the sacrosanct nature of private property, individualism and freedom to contract allow it do just that. To further this unmentioned objective, law is twisted and bent to ignore the supposed right of workers as individuals to be autonomous decision-makers. The indefensible assumptions made give capitalists coercive powers that inhibit the working class from achieving economic and political autonomy. The owners of the means of production are given political and economic privileges by a legal system that pretends to serve the liberal project. The contradiction between liberal law and its capitalist orientation is plain, leading to occasional and always transitory reforms. This is illustrated by this overview of the legal mechanism of adjustment devised by supposedly liberal law to regulate capital/labour conflicts.
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Notes
Coase’s caution that there are limits to the sale of human talents and attributes is necessitated because a complete sale would amount to slavery. Inevitably, decision-makers have to acknowledge that there may be some supposedly agreed-to sales of talents and attributes might amount to a form of serfdom, meaning that workers had entered into a feudal kind of servitude, rather than an acceptable contract to give service; see Davies v. Davies, (1887), 39 Ch. D. 359, 393.The decision-makers have no guidance as to how to draw this kind of distinction.
Viewed in this way, unions are reactionary—they are a defensive formation to counter the built-in power of employers. But, because they have had to act politically to be allowed to organize they have used, and retain, the capacity to become political agents. Employers do everything in their power to ensure that this political potential is blunted. They want to limit such unions as are formed to narrow localized bargaining.
The employer duties include the duty to pay, to provide work, to take responsibility for the employees’ conduct and to provide a safe work environment. The last of these duties came much later when workers were becoming successful with their efforts to have legislatures intervene with pure contract law doctrine.
At the time of writing the Ontario government has initiated welcome reforms to this end. It is noteworthy that it will be up to the employer to prove that a worker should not be covered by the legislation. When the onus is on the claimant worker, it is much easier for employers to exploit the vagueness of the definition of the employee that underpins the application of statutory entitlements. The European Commission (2017) has resolved that all workers who do not fit the standard contract of employment model should be covered by minimum standard schemes. This resolution has not yet been implemented. After this was written there was a change of government in Ontario and promised reforms are unlikely to be implemented. This speaks to a theme of this paper: such reforms are superimposed on the unchanging fundamentals therefore are always challengeable and often challenged.
There are exceptions to this, for instance, when an oligopolistic situation, as there was in the automobile industry for a long time, tempts employers to do one central deal which will apply to all the plants of all the competitors. But, this is a tool that is only available exceptionally. Another exception is provided by the establishment of an ‘ally’ doctrine where administrative tribunals may allow a local union to treat another employer in an integrated organization as a party to the bargaining. But these are exceptions. The standard model is plant-by-plant bargaining.
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Glasbeek, H. Coerced and Unfree in the Private Sector. Crit Crim 26, 579–593 (2018). https://doi.org/10.1007/s10612-018-9419-6
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DOI: https://doi.org/10.1007/s10612-018-9419-6