Abstract
This paper explores the moral and legal status of the right to strike from a contractualist perspective, broadly construed. I argue that rather than attempting to ground the right to strike in the principle of association, as is commonly done in the ongoing legal debate, it ought to be understood as the assertion of a second-order moral right to self-determination within economic life. The controversy surrounding the right to strike thus reflects and depends upon a more basic question of the legitimate scope of reason giving. I conclude that the right to strike, understood as an assertion of a right to self-determination, enjoys presumptive or pro tanto legitimacy apart from the merits or demerits of particular strike demands.
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Notes
A partial exception is Macfarlane (1981). Macfarlane surveys a variety of ethical frameworks in relation to the strike, including Rawlsian justice. But the treatment of Rawls is thin and severed from context. For instance, Macfarlane writes: ‘Thus a practice like striking may be held to be just if persons in the original position would have found it compatible with the two principles [of justice]: that is to say if, given the relationship of capital and labour inherent in industrial society, they would as potential employers or workers have accepted that workers ought to have such a right’ (Macfarlane 1981, p. 27). However, it is a serious distortion of Rawls’ account to apply the device of the original position in this way, stipulating ‘the relationship of capital and labour inherent in industrial society’ as a premise.
In linking the strike instrumentally with bargaining, the Court also appeals to ILO jurisprudence (para. 69), and to parallel decisions by the European Court of Human Rights [Enerji Yapi-Yol Sen v. Turqui, No. 68959/01, April 21, 2009 (HUDOC)] and the German (para. 72) and Israeli courts (para. 73).
For a sophisticated attempt to ‘derive’ the right to strike from the right to freedom of association, see Leader (2010) and Leader (1992). Leader’s derivation justifies only a ‘qualified’ version of the right to strike: because strike activity has a coercive element that intrudes on the freedom of others, he believes that strikes can only be justified when they are undertaken for ‘appropriate reasons.’ But that means that what really justifies the right in such cases is not, after all, the right to freedom of association, but whatever are the reasons that identify the particular strike as appropriately motivated.
On the German Workers’ Movement see Moore (1978); see also Thompson (1966), Montgomery (1987), and Lambert (2005). Lambert notes that unsuccessful efforts were made early in the American labour movement to defend the right to strike as a First Amendment right (of expression), and also as protected by the Thirteenth Amendment’s prohibition of involuntary labour. Indeed, Lambert himself defends the proposal to constitutionalize the right to strike through an expanded understanding of the Thirteenth Amendment and the connection between citizenship and free labour. He roots the relevant conception of citizenship in a substantive view of civic republicanism according to which rights to strike are ‘collective rights’ (2005, p. 192), a move I think unnecessary and, for reasons I cannot go into here (but which involve familiar criticisms of the idea of group rights), unattractive.
Although she does not discuss the right to strike, Elizabeth Anderson (2015) offers a compelling and in some ways parallel account of the importance of self-determination in workplace governance.
For additional support for the moral claim, see Lambert (2005), pp. 10–11, and Marfarlane (1981), p. 48. The best available discussion of workers’ conviction that they retain the jobs they are striking is Gourevitch (2014). Whereas Locke’s argument appears to require that workers allege something morally unacceptable about the conditions of their specific job, Gourevitch’s account focuses on the fact that the moral offence committed by scab workers is seen by workers themselves as a compounding of structural injustice: that is, what is wrong with scab labour is not just the failure to appreciate the unacceptability of the conditions of some particular job, but what the use of scab labour means for the position of all workers.
This is the direction of argument that Anderson develops in detail: in particular, she argues that the authority of employers is the product of an active infrastructure provided by the law, and that labour, property, and corporate law should be seen as ‘public goods provided by the state’ and therefore as ‘properly subject to evaluation and control by democratic processes’ (2015, p. 64). She, too, denies that appeal to property rights can justify the dictatorial authority of managers in the capitalist firm, and she persuasively argues that appeals to liberty of contract ignore the demonstrable fact that very view people engage in any form of contract negotiation as part of being hired. The ‘free contract’ approach in general ‘conflate[s] capitalism with the market, and therefore imagine[s] that the labor contract is the outcome of market orderings generated independently of the state’ (2015, p. 50).
Anderson does, however, accept an argument for workplace hierarchy based upon considerations of efficiency, although she denies that this hierarchy need be dictatorial. I do wonder whether this concession is compatible with a right on the part of workers to withhold their labour in protest of unjust conditions, a subject which she does not address. It also seems to me that, in attributing the existence of hierarchical capitalist firms to the functional imperatives of efficient, large-scale cooperation (2015, p. 60), Anderson is implausibly rationalizing history. It is noteworthy, for instance, that absent from her account of capitalist consolidation is anything corresponding to Marx’s discussion of primitive accumulation.
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Borman, D.A. Contractualism and the Right to Strike. Res Publica 23, 81–98 (2017). https://doi.org/10.1007/s11158-015-9316-8
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DOI: https://doi.org/10.1007/s11158-015-9316-8