Philosophical Foundations of Labour Law (Philosophical Foundations of Law) 0198825277, 9780198825272

Table of contents :
Cover
Philosophical Foundations of Labour Law
Copyright
Contents
List of Contributors
1. Introduction: Does Labour Law Need Philosophical Foundations?
Part I
2. The Contractualisation of Labour Law
3. Is the Contract of Employment Illiberal?
4. Dignity at Work
5. Human Development: A Way out of Labour Law’s Fly Bottle
6. Civic Republican Political Theory and Labour Law
7. Human Rights as Foundations for Labour Law
Part II
8. Distributive Justice and Labour Law
9. Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination
10. Structures of Exploitation
11. Legal Construction of Structures of Exploitation
12. A Risk Theory of Exploitation
Part III
13. The Right to Strike and Contestatory Citizenship
14. Trade Unions and Political Equality
Part IV
15. Gender and the Labour of Law
16. Social Inclusion for Labour Law: Meeting Particular Scales of Justice
17. Volunteer Work, Inclusivity, and Social Equality
18. Reinforcing the Philosophical Foundations of Social Inclusion: The Isolated Worker in the Isolated State
Index

Citation preview

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P H I L O S O P H IC A L F OU N DAT IO N S O F L A B OU R   L AW

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Philosophical Foundations of Labour Law Edited by

HUGH COLLINS G I L L IA N   L E ST E R V I R G I N IA M A N T OU VA L OU

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1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © The several contributors 2018 The moral rights of the authors have been asserted First Edition published in 2018 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2018949659 ISBN 978–​0–​19–​882527–​2 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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Foreword Harry Arthurs Mining the Philosophers’ Stone: Sixteen Tons and What Do You Get? Another Day Older and Deeper in Doubt Two very different tendencies inform most philosophical discussions of labour law. The first, the idealist tendency, resembles alchemy—​a discipline whose great ambition was to discover the chimerical ‘philosopher’s stone’ that was capable of turning ‘base’ metals into ‘noble’ ones such as gold or silver. This tendency is analytical and optimistic: its adherents in the field of contemporary labour law apparently believe that the discovery of a philosopher’s stone—​‘distributive justice’, ‘non-​exploitation’, ‘dignity’, ‘citizenship’, ‘social inclusion’1—​will one day enable us to convert dark satanic mills into temples of just and joyful employment. However, their efforts have so far been in vain. Indeed, three or four recent decades of brilliant alchemical advances in the scholarly and judicial articulation of human, labour, and social rights have coincided with significant social, economic, and political setbacks for workers in the advanced economies.2 Nor is the philosopher’s stone of liberal legalism likely to produce positive results any time soon: relations of power are notoriously impervious to right reason, moral exhortation, or, for that matter, legal regulation. Still, alchemy has not only a distinguished pedigree (Newton and Boyle were practitioners) but perhaps a promising future3 if, as I will suggest, its adherents find a way to cooperate with those who embrace the second tendency amongst philosophers of labour law. That tendency, the materialist tendency, tends to be preoccupied with what I  will call ‘muscle and blood’—​an evocative phrase I have borrowed from Sixteen Tons,4 an American popular song about the working life of a coal miner. Unlike alchemy, the ‘muscle and blood’ tendency deals squarely with the nasty side of power. It holds that under our current form of capitalism, working people are subordinated, their interests callously disregarded, and their lives brutally impoverished.5 Resistance is not only inevitable but justifiable, and the point of labour law is to legitimate and facilitate it: to expose and expunge all juridical impediments to the power of workers to fight against subordination, to protect their interests, or to secure reparations for the abuses visited upon them. A less categorical version of the ‘muscle and blood’ tendency accepts the inevitability of conflict between workers and employers, but conceives of labour law as a sort of Geneva Convention designed to ensure that the conflict is waged in a civilised fashion.

1  See eg in this volume: Guy Davidov, ‘Distributive Justice and Labour Law’; Hugh Collins, ‘Is the Contract of Employment Illiberal?’ (non-​domination); David Cabrelli and Rebecca Zahn, ‘Civic Republican Political Theory and Labour Law’ (non-​domination); Alan Bogg and Cynthia Estlund, ‘The Right to Strike and Contestatory Citizenship’; Pablo Gilabert, ‘Dignity at Work’; John Gardner, ‘The Contractualisation of Labour Law’ (dignity); Virginia Mantouvalou, ‘Legal Construction of Structures of Exploitation’; Jonathan Wolff, ‘Structures of Exploitation’; Einat Albin, ‘Social Inclusion for Labour Law: Meeting Particular Scales of Justice’. 2  I have documented the Canadian case, see Harry Arthurs, ‘Of Skeptics and Idealists: Bernie and Me and the Right to Strike’ (2016) 19 Canadian Labour and Employment Law Journal 15. 3  Benjamin Radford suggests that ‘[w]‌ith modern physics equipment, such as particle accelerators, it is indeed possible to create gold from other elements, though the amounts are sub-​microscopic and the process costs far more to create than the resulting gold is worth.’ ‘What is Alchemy?’, Live Science (24 March 2016) accessed 25 March 2017. 4  The lyrics of Merle Travis’s working class anthem Sixteen Tons (1946) are widely available online. 5  Martin O’Neill and Stuart White, ‘Trade Unions and Political Equality’, this volume.

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vi Foreword I said earlier that the alchemists’ rights-​based theories of labour law were unlikely to produce positive outcomes for workers. Now I  must admit that, alas, the same is true of conflict-​focused, ‘muscle and blood’ theories. The chorus of Sixteen Tons reminds us why: ‘You load sixteen tons and what do you get? /​Another day older and deeper in debt’. In one way, this rueful refrain (which dates from 1946) was prescient: American workers today are indeed on average both many days older and much deeper in debt than they have ever been. However, the author of Sixteen Tons failed to predict that they would no longer load coal—​environmental concerns have drastically curtailed production—​or that, in the advanced economies, automation and globalisation would create highly unfavourable labour market conditions for unskilled and semi-​skilled ‘muscle and blood’ workers. Nor did he, or most ‘experts’, predict the profound changes in capitalism that lay ahead. Sixteen Tons was written when the so-​called ‘postwar compromise’ was just emerging—​ an implicit bargain whereby the welfare state and access to collective bargaining would ensure workers a fair share of both political power and the prosperity generated by an open market economy.6 That compromise now seems to have run its course. Economic inequality and insecurity are growing; labour’s share of GDP is shrinking along with its capacity to mobilise for industrial or political action; and the ‘grabbing hand’ of capital has seized not only wealth but also control over public discourse and policy-​making.7 Thus, workers are entrapped not just in unfavourable labour markets and relations of employment but, more generally, in a broader political economy that seems particularly inimical to their interests. So it turns out that neither of these broad philosophical tendencies in labour law—​not alchemy, not ‘muscle and blood’—​provides a sturdy platform on which to construct the kind of labour markets and workplaces that a thoughtful philosopher might hope to inspire. Nor do other philosophies of labour law: not Catholic social doctrine or republicanism, not anarcho-​syndicalism or Marxism; not theories that stress market efficiency or those that prioritise human capital and capacities; not critical theories of race or gender or those that advocate the peaceful coexistence of social forces. None of these philosophies has led to the development of legal, political, or social strategies that have been able to slow the long decline in labour’s fortunes, much less to reverse it. This disjuncture between good ideas and bad outcomes is deeply disturbing—​especially for people with a genuine interest in philosophy, and a desire to deploy it to make the world a better place. But why this disjuncture? Perhaps Thomas Huxley, the nineteenth-​century public intellectual, was right when he observed that some bad ideas are able to survive long after their brains have been bashed out.8 Neoliberalism might be a case in point. Other examples include the false promise of trickle-​down prosperity, the foregone conclusion-​ ism of much econometric analysis, and the mindless pursuit of labour market flexibility. Nonetheless, these discredited ideas continue to dominate policy discourse. Worse still, they have persuaded many governments not only to abandon labour law as an instrument for the achievement of social justice but to abandon social justice as the ultimate goal of political thought and action. And worst of all, these ideas appear to resonate with large segments of what was once called ‘the working class’, whose members now self-​identify as supporters of rich oligarchs and anti-​state, xenophobic, and populist demagogues. Consequently, I propose a corollary to Huxley’s aphorism: ‘some ideas, no matter how logically sound, morally

6  See Tony Judt, Postwar: A History of Europe Since 1945 (Penguin Books 2006). 7  See Thomas Picketty, Capital in the Twenty-​First Century (Belknap Press 2014) especially 331ff. 8  I have been unable to trace this aphorism to its source. However, the distinguished American jurist, Felix Frankfurter, attributed it to Huxley. See Felix Frankfurter, ‘Foreword’ (1938) 47 Yale Law Journal 515, 517.

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compelling, and empirically incontestable, must nonetheless struggle to gain acceptance in the face of deeply held prejudices and powerful self-​interest’. Still, there is a ray of hope. Thomas Huxley was known as ‘Darwin’s bulldog’. With persistence, courage, and a sharp wit (as well as a good case on the merits) he successfully defended Darwin’s theory of evolution against attacks by conservative theologians and populist know-​ nothings. And in the end Darwin and Huxley prevailed. Good thinking—​good philosophy, one might say—​did overcome bad. Their victory was not complete, to be sure. Creationism lingers on, of course, like much of neoliberal ideology, despite having its brains bashed out; and even those who accept evolution in principle are not always prepared to accept scientific method when its application leads to conclusions they do not understand or like. But no one is in doubt: Huxley’s advocacy and Darwin’s theory prevailed. All of the contributors to this volume aspire to be someone’s bulldog—​Mills’s or Marx’s, Sinzheimer’s or Sen’s; Kahn-​Freund’s or JR Commons’s. Some of us believe, like alchemists, that we can convert higher order ideals such as equality and dignity, freedom and justice into legally enforceable workers’ rights. Perhaps so, but surely not by simply tweaking legal doctrine or patching leaky legislation, nor even by the clever channelling of traditional constitutional theory. If we want to propose ideas about rights that might be able to transform relations of work, they must be big ideas like Darwin’s, and we must advocate them aggressively, as Huxley did. Subordination, injustice, and indignity are endemic in our society; they are not confined to the employment context.9 If we want our critique of the status quo to be taken seriously it must therefore be a broad and deep critique of our society and political economy; if we want to make rights a reality, they must be everyone’s rights, not just workers’; and if we want to change the nature of our society, we must speak not just to philosophers and jurists, but to the broadest possible audience of our fellow citizens. Of course, some observers are impatient with rights discourse and legal philosophy more generally. Their ‘philosophy’ begins with acceptance of the grim facticity of the ‘muscle and blood’ narrative, with an acknowledgement that the essence of the employment relation is unequal power, and in that power relation abuse is commonplace if not inevitable. The logic of this narrative is that the ultimate riposte to power is not rights but countervailing power. Rights (the narrative continues) do not revise power relations; at best, they ratify and legitimate them. Labour must therefore seek protection of its own interests through a muscle and blood strategy, a show of political and/​or industrial force. Its modest aim should be to embed labour’s interests in the theoretical assumptions and working practices of a more benevolent form of capitalism, though obviously some will favour more radical alternatives. Finally, the narrative concludes, labour may indeed win new statutory or constitutional rights through struggle, but those rights will be more a consequence of its victory than a cause. But is this narrative any more plausible than the one offered by believers in the philosophers’ stone of rights discourse? Contemporary capitalism may be experiencing severe stress, may indeed be in terminal decline.10 However, it is hard to see that labour 9  By arguing for attention to injustice ‘beyond the employment context’, I mean to include not only: (a) waged labour that falls outside current legal definitions of ‘employment’ and/​or is exempt from or escapes legal regulation (see Albin n 1) and (b) those engaged in the non-​waged labour of social reproduction (see Sabine Tsuruda, ‘Volunteer Work, Inclusivity, and Social Equality’ and Joanne Conaghan, ‘Gender and the Labour of Law’, this volume), but also (c)  everyone confronting subordination in non-​employment contexts—​most of whom are also workers or their close relations. See Noah D Zatz, ‘Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination’, this volume and Virginia Mantouvalou, ‘Legal Construction of Structures of Exploitation’ especially section 3 ‘Structural Vulnerability and the Law’ in this volume. I have developed this notion in ‘Labour Law as the Law of Economic Subordination and Resistance: A Thought Experiment’ (2013) 34 Comparative Labor Law and Policy Journal 585. 10  Wolfgang Streeck, How Will Capitalism End?: Essays on a Failing System (Verso 2016).

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viii Foreword can claim much of the credit, or that it is poised to gain power or influence in whatever dispensation comes next. As the 2016 American presidential election showed, coal miners—​industrial workers in general—​who figuratively ‘owe their soul to the company store’ now apparently prefer to align themselves with its plutocratic proprietors, and to blame ‘others’ for their plight, rather than their employers. In this respect, they resemble workers in the other advanced democracies, who have migrated en masse from labour-​ friendly political parties to populist movements with xenophobic tendencies, and abandoned faith in unions in favour of a cargo cult that promises that deregulated labour markets will bring prosperity to all.11 Labour law’s traditional muscle and blood narrative, it seems, has so dominated our thinking that we have ignored new evidence that qualifies it or alters its character. Perhaps this explains labour law’s failure to adapt to the changing technologies, demographics, and social dynamics of the contemporary workplace. It almost certainly explains the failure of labour and social democratic parties to maintain their appeal to their former faithful supporters. Sixteen Tons, we must now admit, has failed to provide a plausible blueprint for a more just society and fairer workplaces, as has much scholarship by adherents of the ‘muscle and blood’ school. It is clear, then, that neither the idealist nor the materialist narrative of labour law offers a full account of its ‘why’ and ‘how’, and that neither account offers much promise for its renewal. How to move forward? Alan Bogg has rightly argued that [t]‌here are many different paths to enlightenment, and which path you take will be determined by the questions that you are interested in answering. Scholarly traditions should be eclectic. Dogmatism is an intellectual vice, never a virtue.12

Adherents of each tendency that I have identified must acknowledge their affinity to, even dependence upon, the other. Some materialists use an alchemical vocabulary to frame their normative ambitions for labour law;13 some idealists use ‘muscle and blood’ anecdotes to justify their search for its philosophical foundations.14 But they must do more than acknowledge each other; they must develop a synthesis of the two approaches. The alchemists, the idealists, can re-​energise their dispirited colleagues of the ‘muscle and blood’ persuasion by reframing labour law’s constituting narrative in light of contemporary evidence and experience, by re-​imagining what comes after neoliberalism and hyper-​ managerialism, and especially by restating in a contemporary vernacular the fundamental values that once sustained workers, inspired scholars, and, on their best days, guided lawmakers. The materialists, for their part, can rescue their idealist colleagues from possible irrelevance by welcoming clear analysis, lofty principles, and good laws as necessary (if not sufficient) conditions for a regime of industrial and social justice, while continuing to insist that only struggle or the threat of struggle will translate labour law’s noble aspirations into practical reality. The refrain of Sixteen Tons (quoted earlier) portrays miners as ending up ‘another day older and deeper in debt’. Participants in the conference at which this collection of essays originated certainly left it ‘another day older’. Happily, however, they were deeper not in debt but in doubt. And so they should be. To engage in philosophy, one might say, is to 11  Davidov (n 1) points out that traditional labour law itself may be poorly designed to generate the major redistributive effects necessary to achieve ‘equality’. 12  Alan Bogg, ‘Labour, Love and Futility: Philosophical Perspectives on Labour Law’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 1, 37. 13  O’Neill and White (n 5) relate their contributions to the crisis of modern political democracy. 14  See eg Bogg and Estlund (n 1).

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scratch the itch of doubt—​self-​doubt, doubt about the truth and virtue of what others believe, say, and do, doubt about the meaning of great events and the justness of laws and institutions. I left the conference on the Philosophy of Labour Law with everyone scratching vigorously. The contributors to this volume, like its readers, are unlikely to stop any time soon.

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Acknowledgements This book is based on papers presented at the Bentham House Conference, which we hosted at University College London (UCL) on 16–​17 June 2016. We are deeply grateful to UCL, Faculty of Laws, for the very generous financial support, without which we would not have been able to complete this long journey. We are also grateful to the Modern Law Review for awarding us additional seminar funding. When we started organising the conference in 2014, we were uncertain about how much interest it would attract, but were delighted to discover that the project generated great enthusiasm. We are deeply thankful to all conference speakers for their positive responses to our invitation, and for their thought-​provoking contributions and papers, as well as to all conference participants for excellent discussions during our two-​day event in London. We would also like to record our thanks to colleagues who chaired the sessions, Lizzie Barmes, Nicola Countouris, Mark Freedland, Hazel Genn, Cecile Laborde, and Colm O’Cinneide. In addition, Lisa Penfold and Cat Balogun provided us with excellent administrative support, and we would like to thank them for that. We are also very grateful to Hitesh Dhorajiwala and Natalie Sedacca of UCL Laws for superb research assistance in the final stages of this project. Virginia’s father, Yiannis Mantouvalos (1947–​2017), a brilliant and much loved practising labour lawyer, was an inspiration when she originally conceived of this project. His thoughtful, perceptive, and pragmatic views about labour law have been a source of endless discussions and debates between them. Yiannis passed away suddenly in June 2017, before the completion of the book. Virginia would like to dedicate it to his memory.

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Contents List of Contributors

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1. Introduction: Does Labour Law Need Philosophical Foundations? Hugh Collins, Gillian Lester, and Virginia Mantouvalou

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I.  FR E E D OM, DIG NI T Y, AN D H UM A N   RIG H T S 2. The Contractualisation of Labour Law John Gardner 3. Is the Contract of Employment Illiberal? Hugh Collins 4. Dignity at Work Pablo Gilabert 5. Human Development: A Way out of Labour Law’s Fly Bottle Brian Langille 6. Civic Republican Political Theory and Labour Law David Cabrelli and Rebecca Zahn 7. Human Rights as Foundations for Labour Law Joe Atkinson

33 48 68 87 104 122

II.  DI ST R I BUT I V E J UST IC E A N D E XPLOITAT ION 8. Distributive Justice and Labour Law Guy Davidov 9. Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination Noah D Zatz 10. Structures of Exploitation Jonathan Wolff 11. Legal Construction of Structures of Exploitation Virginia Mantouvalou 12. A Risk Theory of Exploitation Horacio Spector

141 156 175 188 205

III.  WORKPL AC E DE MO C R AC Y A N D SE L F- ​D ET E RM INAT ION 13. The Right to Strike and Contestatory Citizenship Alan Bogg and Cynthia Estlund 14. Trade Unions and Political Equality Martin O’Neill and Stuart White

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I V.  SO C IAL I NC LU SION 15. Gender and the Labour of Law Joanne Conaghan 16. Social Inclusion for Labour Law: Meeting Particular Scales of Justice Einat Albin 17. Volunteer Work, Inclusivity, and Social Equality Sabine Tsuruda 18. Reinforcing the Philosophical Foundations of Social Inclusion: The Isolated Worker in the Isolated State Mark Freedland

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List of Contributors Einat Albin is a lecturer in law and the academic director of the Clinical Legal Education Center at the Hebrew University of Jerusalem. She completed her DPhil at the University of Oxford on the regulation of the service economy. Her research focuses on domestic work, service work, intimate work, social inclusion, and persons with disabilities in the workplace. Einat has written numerous articles in leading law journals, including the Modern Law Review, the Oxford Journal of Legal Studies, Theoretical Inquiries in Law, and the Industrial Law Journal, and also has contributions in edited books, including in the recent Migrant at Work (OUP 2014) and The Right to Work (Hart 2015). Harry Arthurs FBA is University Professor Emeritus, former Dean of Osgoode Hall Law School (1972–​7), and former President of York University (1985–​92). He has published extensively in the fields of legal education and the legal profession, legal history and legal theory, labour and administrative law, globalization, and constitutionalism. In addition to serving as an arbitrator and mediator in labour disputes, Arthurs has conducted enquiries and reviews at Canadian, British, and American universities, and has advised governments on issues ranging from higher education policy and the constitution to labour and employment law. Most recently he has chaired reviews of federal labour standards legislation (2004–​6), Ontario pension legislation (2006–​8), and the funding of Ontario’s workplace safety and insurance system (2010–​12). Joe Atkinson is a PhD candidate at University College London, researching the relationship between labour law and human rights. He holds a BA in Jurisprudence from the University of Oxford and an LLM from the London School of Economics. Prior to joining UCL he worked for the Labour Party Policy Directorate, and as Political Advisor to the Shadow Chancellor. From 2019 he will be a Lecturer in Law at the University of Sheffield. Alan Bogg is a Professor of Labour Law at the University of Bristol. He is Co-​Director of the Bristol Centre for Law at Work. Previously, he was Professor of Labour Law at the University of Oxford. He received his undergraduate and graduate legal education in Oxford. Following a period as a lecturer at the University of Birmingham, Alan returned to Oxford in 2003 to take up his fellowship at Hertford College. Alan’s research focuses predominantly on theoretical issues in domestic, European, and international labour law. As well as many journal articles, he published The Democratic Aspects of Trade Union Recognition (Hart 2009). He coordinated a Leverhulme International Research Network with Professor Tonia Novitz, which resulted in the edited collection Alan Bogg and Tonia Novitz (eds), Voices at Work (OUP 2014). His current research projects include: the intersection between migrant status and labour rights; European Social Dialogue and theories of deliberative democracy; and the constitutionalisation of freedom of association in comparative perspective. David Cabrelli is a Professor in Labour Law at the University of Edinburgh, having previously lectured at the University of Dundee. Prior to his appointment, David practised commercial law and corporate law as a solicitor. David has published papers in a number of academic and practitioner journals in the field of labour law/​employment law and commercial law, together with a book on the Scots law of commercial agreements and student textbooks on employment law and Scots commercial law. His current research involves a detailed examination of differing behavioural standards and expectations which the common law and the legislature impose upon employers and how they impinge on the employment contract. Hugh Collins FBA is the Vinerian Professor of English Law at All Souls College, Oxford. Previously he was Professor of English Law at the London School of Economics and a Fellow of Brasenose College, Oxford. He studied law at Oxford and Harvard. He has published research in a wide range of fields including contract law, employment law, European law, legal theory, and human rights law. Recent book publications include A European Civil Code:  The Way Forward (CUP 2008); Employment Law (2nd edn, OUP 2010); Networks as Connected Contracts (by Gunther Teubner)

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Edited with an Introduction (Hart 2011); and Labour Law (with KD Ewing and Aileen McColgan) (CUP 2012). Joanne Conaghan is a Professor of Law and until recently Head of School at the University of Bristol. She has published extensively in the field of gender and labour law, co-​editing (with Professor Kerry Rittich, University of Toronto) Labour Law, Work, and Family (OUP 2005). More recently she has published a monograph Law and Gender (Clarendon Press 2013), exploring the place of gender in the conceptual and normative structure of law and legal reasoning. Guy Davidov, LLB (Tel-​Aviv, 1996), LLM (Toronto, 1998), SJD (Toronto, 2002), is the Elias Lieberman Professor of Labour Law at the Hebrew University of Jerusalem, where he previously served as Vice-​Dean as well as Chair of Graduate Studies at the Faculty of Law. He was the founding Chair of the Labour Law Research Network (LLRN) and is the Editor-​in-​Chief of the International Journal of Comparative Labour Law and Industrial Relations. As well as publishing widely on labour law issues in journals, he has co-​edited (with Brian Langille) two influential books, Boundaries and Frontiers of Labour Law (Hart 2006) and The Idea of Labour Law (OUP 2011). His most recent book, A Purposive Approach to Labour Law, was published by OUP in 2016. Cynthia Estlund is the Catherine A. Rein Professor at NYU School of Law. Estlund obtained her BA from Lawrence University, and her JD from Yale Law School. After clerking for Judge Patricia M Wald on the US Court of Appeals for the DC Circuit, Estlund practised labour law for several years. She has written extensively on workplace regulation and governance; freedom of expression and procedural fairness at work; diversity, integration, and affirmative action; and many aspects of collective labour law. Her books include Working Together: How Workplace Bonds Strengthen a Diverse Democracy (OUP 2003), Regoverning the Workplace: From Self-​Regulation to Co-​Regulation (Yale University Press 2010), and A New Deal for China’s Workers? (Harvard University Press 2017). Mark Freedland FBA is Emeritus Professor of Employment Law in the University of Oxford and an Emeritus Research Fellow of St John’s College Oxford which continues to be the base for his legal scholarly work. He is also an Honorary Professor in the Faculty of Laws of University College London, at which he first embarked upon his legal studies. His research and writing have been predominantly in the field of labour/​employment law, including two recent edited collections: Freedland et al, The Contract of Employment (OUP 2016), and Costello and Freedland (eds), Migrants at Work (OUP 2014). John Gardner FBA is Senior Research Fellow at All Souls College, Oxford, and was formerly Professor of Jurisprudence in the University of Oxford and a Fellow of University College, Oxford. He teaches and writes on the philosophy of private law, of criminal law, of public law, and of law in general, as well as in nearby areas of moral philosophy, political philosophy, and the philosophy of action. His books include Law as a Leap of Faith (OUP 2012) and Offences and Defences (OUP 2007). His most recent book is From Personal Life to Private Law (OUP 2018). Pablo Gilabert, who is originally from Argentina, is an Associate Professor in the Department of Philosophy at Concordia University (Montreal, Canada). He has been an HLA Hart Visiting Fellow at the University of Oxford, a DAAD Fellow at the University of Frankfurt, a Visiting Fellow at the Australian National University, and a Laurance S. Rockefeller Visiting Faculty Fellow in the Center for Human Values at Princeton University. As well as publishing many articles in philosophical journals, he is the author of From Global Poverty to Global Equality. A Philosophical Exploration (OUP 2012), and Human Dignity and Human Rights (OUP 2018). Brian Langille is Professor of Law at the University of Toronto where he teaches labour and employment law, as well as contract law. His writing concentrates on labour law, labour law theory, international labour law, and constitutional labour law. He co-​edited (with Guy Davidov) two influential books, Boundaries and Frontiers of Labour Law (Hart 2006) and The Idea of Labour Law (OUP 2011). He has advised Canadian governments, the ILO, the OECD, the World Commission on the Social Dimension of Globalization, and others. He is also an experienced labour arbitrator. His current projects include further study of the significance of the ‘Capability Approach’ for our understanding of labour law.

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Gillian Lester is the Dean and the Lucy G.  Moses Professor of Law at Columbia Law School. Previously she held faculty appointments at the University of California Berkeley School of Law (2006–​14) and at UCLA School of Law (1994–​2005). She has held visiting appointments at Georgetown, University of Southern California, Chicago, Harvard, and the Interdisciplinary Center (Israel). Her scholarship focuses on workplace issues, particularly intellectual property in the workplace, distributive justice, and the design of social insurance programmes. She is the co-​author of Steven Willborn, Stewart Schwab, John Burton, and Gillian Lester, Employment Law:  Cases and Materials (6th edn, Carolina Academic Press 2017) and served as Advisor to the American Law Institute Restatement of Employment Law. Virginia Mantouvalou is Professor in Human Rights and Labour Law and Co-​Director of the UCL Institute for Human Rights. Before joining UCL, she taught at the University of Leicester and the London School of Economics. She has published extensively on issues of human rights and employment law, social and labour rights, the right to privacy in dismissal, domestic labour, and the rights of migrant workers. Virginia is the author of Debating Social Rights (with Conor Gearty) (Hart, 2011) and editor of The Right to Work: Legal and Philosophical Perspectives (Hart,2015). Her articles and book chapters include: ‘ “Am I Free Now?” Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and Society 329; ‘Are Labour Rights Human Rights?’ (2012) 3 European Labour Law Journal 151. She is on the management board of Kalayaan (an organisation working on the rights of migrant domestic workers) and the Equal Rights Trust (an organisation promoting equality). Martin O’Neill is a Senior Lecturer at the Department of Politics at the University of York. He works on a number of topics in moral and political philosophy. He is especially interested in equality and social justice, freedom and responsibility, and a number of issues at the intersection of political philosophy and public policy (including taxation, financial regulation, corporate governance, labour unions, insurance, climate change, the welfare state, education, and health). His collection on Property-​Owning Democracy: Rawls and Beyond (co-​edited with Thad Williamson) (University of Richmond, Virginia) was published by Wiley-​Blackwell in 2012. Another collection, Taxation and Political Philosophy (co-​edited with Shepley Orr, UCL), was published by OUP in 2018. Horacio Spector has a law degree and a doctoral degree in Legal Philosophy from the University of Buenos Aires, as well as a master’s degree in Philosophy from the Argentine Society of Philosophical Analysis (SADAF). He was Founding Dean of the School of Law at Universidad Torcuato Di Tella in Buenos Aires (1996–​2013) and Provost of the University (2000–​8). At present he is Professor of Law at Universidad Torcuato Di Tella and at the School of Law of the University of San Diego. He is also a member of the Research Faculty in the Center for the Philosophy of Freedom at the University of Arizona and has held fellowships from the Alexander von Humboldt and the John Simon Guggenheim Memorial foundations. He is the author of Autonomy and Rights: The Moral Foundations of Liberalism (OUP 1992), Analytische und Postanalytische Ethik: Untersuchungen zur Theorie moralischer Urteile (Alber 1993), and Rights: Concepts and Contexts (co-​edited with Brian Bix) (Ashgate 2012). He has published several papers in philosophical and legal journals such as Mind, Political Theory, Social Philosophy and Policy, and the Fordham Journal of Corporate and Financial Law. Sabine Tsuruda is an Assistant Professor at Queen’s University Faculty of Law. She is a graduate of the Joint JD/​PhD Program in Law and Philosophy at the University of California, Los Angeles, where she studied as a Charlotte W.  Newcombe Doctoral Dissertation Fellow and  served as a Senior Editor of the UCLA Law Review. Her thesis was entitled ‘A Liberal Requirement to Make Work Meaningful’. Her published work includes ‘The Moral Burdens of Temporary Farmwork’ in Anne Barnhill, Tyler Doggett, and Mark Budolfson (eds), The Oxford Handbook of Food Ethics (OUP 2018). Stuart White is Associate Professor of Politics and Tutorial Fellow in Politics at Jesus College Oxford. He has a BA in Philosophy, Politics, and Economics and an MPhil in Politics from Oxford University, and did his PhD in Politics at Princeton University. Stuart’s research focuses centrally on democracy, citizenship, and property rights and the question of what rights to resources we should have as members of a democratic community. A unifying theme is the

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concern to explore visions of society that are at once anti-​capitalist and opposed to authoritarian forms of socialism. Publications include:  The Civic Minimum:  On the Rights and Obligations of Economic Citizenship (OUP 2003); The Ethics of Stakeholding (Palgrave Macmillan 2003); The Citizen’s Stake: Exploring the Future of Universal Asset Policies (University of Chicago Press 2006); Equality (Polity 2006); How to Defend Inheritance Tax (Fabian Society 2008); Building a Citizens’ Society:  The Emerging Politics of Republican Democracy (co-​edited with Daniel Leighton) (Lawrence & Wishart 2008); and a free to download e-​book, Democratic Wealth (co-​ edited with Niki Seth-​Smith) (2014). Jonathan Wolff is the Blavatnik Chair in Public Policy in association with Wolfson College, University of Oxford. He was formerly Professor of Philosophy and Dean of Arts and Humanities at UCL. He is a political philosopher who works on questions of equality, disadvantage, and social justice. His work in recent years has also turned to applied topics such as public safety, disability, gambling, and the regulation of recreational drugs, which he has discussed in his books Ethics and Public Policy: A Philosophical Inquiry (Routledge 2011) and The Human Right to Health (Norton 2012). Earlier works include Disadvantage (with Avner de-​Shalit) (OUP 2007); An Introduction to Political Philosophy (3rd edn, OUP 2016); Why Read Marx Today? (OUP 2002); and Robert Nozick (Polity 1991). His current work concerns social equality and social exclusion. Rebecca Zahn is Senior Lecturer in Law at the University of Strathclyde. Her research interests lie in the fields of European law and labour law (particularly European, national, and comparative labour law). She studied law at the University of Edinburgh and the European University Institute. As well as numerous journal articles, she co-​edited (with Nicole Busby and Douglas Brodie) The Future Regulation of Work:  New Concepts, New Paradigms (Palgrave Macmillan 2016). Together with David Cabrelli, Rebecca is working on the significance of the concept of ‘domination’ within contemporary political, and social philosophy to the area of labour law. Noah D Zatz is Professor of Law at UCLA School of Law. His interests include employment and labour law, welfare law and anti-​poverty policy, work/​family issues, feminist legal and social theory, and liberal political theory. His writing and teaching address how work structures both inequality and social citizenship in the modern welfare state. Zatz’s primary focus is on which activities become recognised and protected as ‘work’, how work is defined in relationship to markets, and how the boundaries of markets are themselves mediated by gender and race, among other things. His published scholarship engages these questions by studying the legal concepts of ‘work’ in welfare work requirements and ‘employment’ in labour and employment law, especially with regard to the status of family caretaking, prison labour, workfare, and sex work. Another major interest is how anti-​discrimination law, and employment law more generally, address labour market inequality that is jointly produced by workers’ interactions with employers, co-​workers, and actors outside the workplace.

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1 Introduction: Does Labour Law Need Philosophical Foundations? Hugh Collins, Gillian Lester, and Virginia Mantouvalou

Philosophical foundations of labour law is emerging as a new field of scholarship. As far as we know, a book on this subject has not yet been published, though in recent years several exploratory articles and book chapters have directly addressed the theme.1 In addition, some monographs that engage with philosophy have examined aspects of labour law such as dismissal, the statutory minimum wage, freedom of association, recognition of trade unions for the purpose of collective bargaining, and the right to work.2 Building on those initiatives, this collection of essays tries to develop a philosophical perspective on the subject of labour law as a whole. At its heart this enquiry concerns the moral and political ideas, values, and principles that underpin conceptions of the foundations, purposes, and scope of the field of law known as labour law. The contributors to this volume illuminate and critically examine the meaning, application, and interconnection of these foundational ideas, values, and principles that shape the field. Going beyond many fruitful enquiries into the purposes and rationale of labour law,3 the essays try to uncover the moral ideals and principles that provide the foundations or assumptions that support the differing views that have been expressed about the aims and purposes of labour law. This collection of essays offers the opportunity to shape for the first time a wide-​ranging and pluralist philosophical enquiry into the foundations of labour law, which in turn is likely to influence the development of the subject and the law in the future. For centuries, of course, there has been lively and thoughtful philosophical discussion of closely related topics such as the nature and meaning of work, the quality of the social relation between master and servant (or slave), the nature of exploitation, the need for democracy in economic institutions such as firms, and the demands of justice in the distribution of the benefits of work.4 But the topic of why and how the law regulates and ought to 1  eg Horacio Spector, ‘Philosophical Foundations of Labour Law’ (2006) 33 Florida State University Law Review 1119; Brian Langille, ‘Labour Law’s Theory of Justice’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011) 101; Hugh Collins, ‘Theories of Rights as Justifications for Labour Law’ in the same volume; Riccardo Del Punta, ‘Labour Law and the Capability Approach’ (2016) 32 International Journal of Comparative Labour Law and Industrial Relations 383; David Cabrelli and Rebecca Zahn, ‘Special Issue: Theories of Domination and Labour Law:  A New Conception for Legal Intervention?’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 331; Alan Bogg, ‘Labour, Love and Futility: Philosophical Perspectives on Labour Law’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 7. 2 eg Hugh Collins, Justice in Dismissal (OUP 1992); Sheldon Leader, Freedom of Association:  A Study in Labor Law and Political Theory (Yale University Press 1992); Alan Bogg, The Democratic Aspects of Trade Union Recognition (Hart 2009); Virginia Mantouvalou (ed), The Right to Work:  Legal and Philosophical Perspectives (Hart 2015). 3  eg Hugh Collins, ‘Labour Law as a Vocation’ (1989) 105 Law Quarterly Review 468; Hugh Collins, ‘The Productive Disintegration of Labour Law’ (1997) 26 Industrial Law Journal 295; Davidov and Langille (n 1); Guy Davidov, A Purposive Approach to Labour Law (OUP 2016). 4  See eg Hannah Arendt, The Human Condition (University of Chicago Press 1958); Karl Marx, Economic and Philosophic Manuscripts of 1844 (Dirk Struik ed, International Publishers 1964); John Locke, ‘Second Treatise of Government’ in John Locke: Two Treatises of Government: A Critical Edition (Peter Laslett ed, 2nd edn, CUP Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 1 © Hugh Collins, Gillian Lester and Virginia Mantouvalou 2018. Published 2018 by Oxford University Press.

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regulate work and relations in the workplace is rarely mentioned in philosophical analysis. Rather than engaging in much philosophical enquiry, the subject of labour law has in the past mostly comprised technical legal analysis for the purpose of assisting legal practice, or evaluative discussion about the policies embodied in legislation, or calls for activist interventions through the legal process and collective industrial action by workers. This book provides an opportunity to stand back from those other valuable activities and contemplate more fully the central moral and political principles that go to the core of the existence of labour law as a field of legal practice and scholarship. Should we embrace this opportunity?

1.  The Case for Examining Philosophical Foundations The claim that it is a good time for philosophical contemplation is not to deny that ultimately the point of labour law is to do something. One of labour law’s key tasks is to provide a countervailing force against the power of owners of business organisations in support of workers, who, because they have nothing to sell but their labour, suffer from an inherent weakness of bargaining power that can lead to exploitation.5 The countervailing force can be achieved in many ways including mandatory protective laws and support for collective bargaining and industrial action through which workers can negotiate better terms of employment. As discussed in this book and elsewhere, labour law performs many other important tasks, ranging from protection of the dignity and liberty of workers to the basic task of the facilitation of the cooperation needed for an advanced division of labour in a market economy. The identification and pursuit of these practical goals clearly do not depend upon a philosophical understanding of the values and principles that may underlie labour law. Instead of philosophical contemplation, it may appear more important to carry out other kinds of research such as empirical assessment of the effects of legislation in order to discover how best to achieve the goals of labour law through legal regulation.6 Moreover, labour law is often infertile terrain for reflection upon coherent underlying principles. In devising the laws and legal institutions, much of the detailed rules and standard labour laws are the product of political conflict in the legislature and sometimes in the streets. Laws that are produced through politics are always provisional settlements of these conflicts of interest and ideologies that will be open to contestation. The balance of political forces and the popularity of political parties explain the detailed content and nature of those legal outcomes at any particular time. In view of the shifting and often pragmatic goals and measures of labour law, the question must arise whether it is even possible to have a philosophy of a subject that concerns an area of law that often appears to dispense with coherent legal principles in favour of a patchwork of regulations that have been

1967); Karl Marx, Capital: A Critique of Political Economy, Vol II (International Publishers 1967); Carole Pateman, Participation and Democratic Theory (CUP 1970); Adina Schwartz, ‘Meaningful Work’ (1982) 92 Ethics 634; Robert Dahl, A Preface to Economic Democracy (University of California Press 1985); Andrew Reeve (ed), Modern Theories of Exploitation (Sage 1987); Gerry A Cohen, History, Labour, and Freedom: Themes from Marx (OUP 1989); James Bernard Murphy, The Moral Economy of Labour (Yale University Press 1993); Michael Sandel, Democracy’s Discontent (Harvard University Press 1996); Alan Wertheimer, Exploitation (Princeton University Press 1999); Kory P Schaff (ed), Philosophy and the Problems of Work: A Reader (Rowman & Littlefield 2001); Ruth Sample, Exploitation: What It Is and Why It’s Wrong (Rowman & Littlefield 2003); Iris M Young, ‘Responsibility and Global Labor Justice’ (2004) 12 Journal of Political Philosophy 365; Andrea Veltman, Meaningful Work (OUP 2016). 5  Paul Davies and Mark Freedland, Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 18. 6  For examples of insightful empirical research, see eg Lizzie Barmes, Bullying and Behavioural Conflict at Work (OUP 2016) and Lydia Hayes, Stories of Care: A Labour of Law (Palgrave 2017). On prospects and challenges for empirical labour law research, see Amy Ludlow and Alysia Blackham (eds), New Frontiers in Empirical Labour Law Research (Hart 2015).

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devised to satisfy short-​term political agendas. Does it make any sense to look for coherent philosophical foundations of moral and political principles for a subject like labour law that is so clearly the product of historical and pragmatic political compromises? Although no doubt there is much to be said in favour of the argument that labour law demands action rather than contemplation, there are some important reasons for believing that the aims of labour law cannot be secured unless we articulate its philosophical foundations.7 We suggest that it is essential and inevitable to stand back from the political compromises and ad hoc measures to consider and spell out explicitly what are the key attributes of the subject and its foundational goals and principles. We also suggest that in order to identify what it is that labour law needs to do and whether it is successful in doing it, we must think about its philosophical foundations. We need a normative account of labour law in order to assess its shortcomings and propose reforms. To assess the success of legal and civil society institutions, we need to consider against what this success is assessed: do we assess it against the ideas of workers’ equality or liberty, against everyone’s social inclusion, or against the promotion of workers’ dignity? And what is the meaning of each of these concepts? It is easy to lose sight of the broader picture when one is engaged in the resistance to some apparently technical measure that may have adverse practical ramifications for workers in employment. The same can be said about empirical research findings: we suggest that they may be of limited significance unless they are assessed against a normative framework that explains what is just and what is unjust in the workplace. Political action and empirical study, on the one hand, and normative theory, on the other, have to go hand in hand. Yet, probably the most important reasons for pursuing a philosophical agenda at this time concern very large questions. These involve the continuing existence of the subject of labour law and the paradigm around which it is built. As well as the significance of those questions for the destiny of the subject of labour law as a whole, philosophical enquiry has the potential to throw valuable light on a whole range of difficult issues and concepts that arise within labour law. We need to explain briefly these key tasks for an enquiry into the philosophical foundations of labour law.

(a) The existence of labour law The need for labour law has often been questioned, and perhaps no more so than today when the very idea of labour law is under attack.8 A major challenge to the existence of labour law comes from the direction of libertarian political philosophies.9 Apart from the protection of rights to private property, on a strong libertarian view pretty much all that is required from government is the legal enforcement of contracts freely concluded between those wishing to acquire and use labour power and those seeking to sell it in return for wages. On this view that treats the provision of work personally much like the sale of any other commodity, an employer and employee can and should use the ordinary law of contract to regulate their relations to their mutual benefit, without the need for any special rules for contracts of employment. As well as being unnecessary, the libertarian view holds that labour law is extremely undesirable. One reason given for rejecting labour law is that libertarians assert that legal regulation of employment tends to create inefficiency and inelasticity in the labour market by interfering with freedom of contract. As a consequence, 7  See Arthurs in this volume. 8  Alan Hyde, ‘The Idea of the Idea of Labour Law: A Parable’ in Davidov and Langille (n 1). 9  Robert Nozick, Anarchy, State and Utopia (Basic Books 1974); Friedrich A Hayek, Law, Legislation and Liberty (Routledge & Kegan Paul 1982).

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labour law may end up ‘back-​firing’:10 by increasing the costs of employment to employers from the need for compliance with the law, it may depress demand for labour, with the possible consequences of reduction of wage levels and unemployment. Moreover, on the libertarian view any mandatory laws about employment relations are wrong in principle because they do not fully respect the rights of the parties to self-​ determination or autonomy, but instead impose improper paternalist controls over the labour market and employment relations. The political manifestation of such libertarian views includes such policies as getting rid of ‘red tape’, a category that tends to include all mandatory labour laws, and laws against discrimination.11 This view also supports the reduction of the power of trade unions and organised labour by placing restrictions on the right to organise or the right to strike on the ground that the activities of trade unions interfere with the operation of a free market. The libertarian view can also be used to justify measures designed to make access to specialised agencies and the courts to enforce specialised employment rights more difficult or more expensive, because easy access to justice may encourage frivolous and wasteful claims. Libertarians are likely to concede that sometimes the unregulated market produces the consequence that individuals may lose nearly all their rights and freedoms—​in which case, it is appropriate to pass laws against such comprehensive denials of rights, such as the crimes of modern slavery and human trafficking. But these measures are not perceived as invidiously paternalistic like other labour laws, merely laws to prevent the free market from undermining a libertarian social order in which everyone’s basic liberties are fully respected.12 Versions of these libertarian views have achieved prominence in politics in recent years, especially in North America and the UK. Labour lawyers correctly perceive that such arguments in favour of a simple regime of freedom of contract and the freedom of a business to conduct its affairs without detailed regulation of employment relations foreshadow the demise of labour law. To be a libertarian labour lawyer would be to commit professional suicide. To resist such arguments for the abolition of a special set of rules to govern employment relations, it is necessary to address critically the fundamental assumptions of the libertarian position. One major presupposition insists on the efficiency of an unregulated labour market; and the other is the claim that to properly respect the rights of the individual it is necessary to avoid any kind of paternalist mandatory laws. Whilst the former claim can be effectively challenged by more sophisticated economic models of the operation of the labour market in the context of a state that provides a social security system,13 the latter claim about the incompatibility of labour law with a state that fully respects the rights of individuals can be assessed by philosophical reflection. In particular, a libertarian will object to the state telling employers what value they should place on the labour of others, how they should run their businesses, and dictating the terms of their contracts through mandatory regulations. Does labour law violate the basic liberties and rights of persons? The starting point for libertarians is the proposition that interference with freedom of contract is incompatible 10  Cass Sunstein, ‘Paradoxes of the Regulatory State’ (1990) 57 University of Chicago Law Review 407 (though Sunstein does not endorse the libertarian position). 11 Richard A Epstein, Forbidden Grounds:  The Case Against Employment Discrimination Laws (Harvard University Press 1992). 12  Exceptionally, Nozick (n 9) 331 holds to the view that contracts for slavery should be permitted. 13  Frank Wilkinson and Simon Deakin, Labour Standards—​Essential to Economic and Social Progress (Institute of Employment Rights 1996); Simon Deakin and Frank Wilkinson, ‘Labour Law and Economic Theory:  A Reappraisal’ in Hugh Collins, Paul Davies, and Roger Rideout (eds), Legal Regulation of the Employment Relation (Kluwer Law International 2000); Hugh Collins, ‘Justifications and Techniques of Legal Regulation of the Employment Relation’ in Collins, Davies, and Rideout ibid.

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with the value of freedom or liberty of the individual, a value that they cherish. It is plainly true, for instance, that a minimum wage law takes away the freedom of both employer and employee to choose the terms on which they will enter a transaction, for agreed wages below the minimum wage will be invalidated by the law and replaced with the statutory minimum. Is this mandatory law therefore an impermissible interference with the freedom of employers and workers? The decision of the Supreme Court in Lochner v New  York14 haunts us to this day: is a law that sets maximum hours for workers in order to protect their health necessarily a wrongful and unconstitutional interference with their liberty as the US Supreme Court decided? To answer that question we need to develop a deeper, philosophical understanding of concepts like human rights, dignity, freedom, and respect for the equality of persons. It is too simple to say that liberty has been damaged simply because the law prevents people from selecting an option that might lead to exploitation and damage to their health. A better understanding of the value of liberty might claim, for instance, that freedom is only valuable if it provides individuals with worthwhile opportunities and the capability of seizing some of those opportunities. On this view, precarious, exploitative, and dangerous jobs are not worthwhile opportunities to have, so that deprivation of those opportunities is not an interference with an exercise of freedom that anyone should value. Moreover, one should question the assumption made by libertarians that unregulated markets involve dealings between free and equal persons achieved through ordinary contractual arrangements.15 A typical employment relation involves the worker’s submission to a one-​sided contract drawn up unilaterally by the employer. This asymmetry in the labour market arises in general because only one party, the employer, owns substantial property, the means of production, which places structural constraints on the freedom of the other party, the employee, to refuse offers of employment.16 In the context of employment, there has to be a better interpretation of freedom that takes account of workers’ material conditions.17 This better understanding of the concept of freedom in the context of employment needs also to incorporate two further special features of typical contracts of employment. First, under the terms of employment contracts, the employer acquires the right to direct and manage employees, and employees are obliged to obey those instructions. This structure of power and subordination appears to confer a discretionary power on the employer that often seems to be the very opposite of a free and equal relationship. Workers are frequently in a relation of something that is more aptly described as a master and servant relation than business partnership. Secondly, the employer’s power extends in practice not only to complete control over the workplace in every aspect, but also to the ability to tear up the contract almost at will and set new terms for the arrangement. This additional power stems from the employer’s power to terminate the contract of employment by summary dismissal. Although national legislation differs in the constraints placed on employers with respect to dismissal, with few countries having the equivalent of the American doctrine of termination at will, the employer’s power to threaten to terminate the contract unless employees agree to contractual modifications or extra-​contractual performance is invariably strong. 14  198 US 45 (1905). 15  For discussion of freedom in relation to the employment contract, see Gardner in this volume. 16  Gerry A Cohen, ‘Capitalism, Freedom and the Proletariat’ in Alan Ryan (ed), The Idea of Freedom: Essays in Honour of Isaiah Berlin (OUP 1979) 11–​14. 17  On freedom and material conditions, see eg ibid; see also Jeremy Waldron, ‘Homelessness and the Issue of Freedom’ in Liberal Rights—​Collected Papers (CUP 1993); Gerry A Cohen, ‘Freedom and Money’ (2001) 2 Revista Argentina de Teoria Juridica 1.

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This power reduces the contract of employment to a bargain that, unlike most binding legal contracts, has surprisingly little effective coercive force. Employees may object to a wage cut or an imposed variation in duties, but the employer can impose these changes usually at very little cost. If the workers do not go along with the new arrangements, they can be dismissed and find themselves unemployed, and replaced by others who will accede to the employer’s demands. When these two features of the one-​sided deal that can be unilaterally adjusted to the interests of one part are combined in the contract of employment, they create a unique kind of transaction. This context reveals that the freedom and equality that are presupposed by libertarians to exist in all contractual relations assume a special deviant form in contracts of employment, in which the essence of the contract in some respects is for the worker to sacrifice freedom and equality. Threats to the existence of labour law depend on intellectual perspectives and frameworks that essentially liken employment to other kinds of transactions, such as sales of goods. But labour is not a commodity. Nor is the contract of employment really a textbook type of freely negotiated contract: its terms are normally dictated unilaterally; they confer discretionary power on the employer to vary the employee’s performance obligations; and through threats of termination can always be altered unilaterally in the interests of the employer. Employment is more of an autocratic governance mechanism than a contractual bargain.18 How may philosophical reflection contribute to countering the agenda voiced by libertarians? To be sure, ideas such as inequality and subordination are already widespread in discussions of labour law, as in the frequent references to the inequality of bargaining power between employer and employee. Values such as equality and dignity have also been discussed, especially in connection with laws against discrimination in employment,19 but also in the context of the contract of employment.20 Wrongs such as exploitation have been analysed in connection with laws against forced labour, trafficking, and modern slavery. However, there is limited theoretical exploration of these ideas as the underlying justification of labour laws and their broader implications for legal intervention. To resist the challenge to the existence of labour law posed by libertarians, we need to be much clearer about the ways in which the contract of employment subverts liberal values such as rights, dignity, liberty, and equality, and about the broader structures that make workers vulnerable to exploitation. A more precise understanding of the tension between libertarianism and liberal values helps us to understand exactly why labour law is needed, how it should be interpreted, and what it should do. It can give a strong intellectual support to labour law, which will be important for workers and their organisations, scholars, judges, and legislators.

18  Elizabeth Anderson, Private Government (Princeton University Press 2017). For explorations of this idea in this volume, see: David Cabrelli and Rebecca Zahn; and Hugh Collins. 19  This book mostly excludes the law of discrimination because its philosophical foundations have been explored extensively elsewhere, including a volume in this series:  Deborah Hellman and Sophie Moreau (eds), Philosophical Foundations of Discrimination Law (OUP 2013). Cf Larry Alexander, ‘What Makes Wrongful Discrimination Wrong? Biases, Preferences, Stereotypes, and Proxies’ (1992) 141 University of Pennsylvania State Law Review 149; John Gardner, ‘On the Ground of Her Sex(uality)’ (1998) 18 Oxford Journal of Legal Studies 167; Deborah Hellman, When is Discrimination Wrong? (Harvard University Press 2008); Kasper Lippert-​Rasmussen, Born Free and Equal: A Philosophical Inquiry into the Nature of Discrimination (OUP 2013); Benjamin Eidelson, Discrimination and Disrespect (OUP 2015); Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015); Hugh Collins and Tarunabh Khaitan (eds), Foundations of Indirect Discrimination Law (Hart/​ Bloomsbury 2018). 20  Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2011).

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(b) The paradigms of labour law Labour law has never been entirely sure about its special province or scope.21 Indeed, the subject has never settled on its own name. Should it be called, as it has been at various times in the last century, industrial law, labour law, employment law, work law? Different names reveal varied historical contexts and economic systems; to some extent they reflect the evolution in the US and Europe from the heavy industry of mass production to modern service networks, global supply chains, and the emerging gig economy. As well as historical circumstance, the changes in name often signify different priorities and scope for the subject. When we choose a label for a field of study, we are not simply launching a descriptive account of various laws. The label derives implicitly from a conception of the subject that describes a normative vision of what labour law ought to do or what its ideal scope should be. The selection of a label involves the choice of a paradigm for the subject. This paradigm has in mind a central case of the subject, which in this instance will be certain social and economic institutions, and how they ought to be regulated. This paradigm indicates boundaries for the subject, though of course related topics can always be considered as well. The selection of a paradigm is not a purely descriptive exercise. It is a normative judgement about what labour law ought to be doing and how that task should be performed. The central case of labour law will be the best example of that paradigm available. There will be marginal cases on the boundaries of labour law, of course, but understandings of the subject will rely heavily on their orientation towards the paradigm. The selection of a paradigm may be motivated by a variety of moral and practical considerations. At bottom, however, the selection of paradigm involves, we suggest, a philosophical choice. The choice relies upon analysis of social and legal practices, but develops a conception of labour law that presents the subject in its best light as a coherent and purposeful undertaking. The paradigm that is usually strongly associated with the label of ‘labour law’ concerns collective labour relations. The normative vision within this paradigm holds that the best way to combat an employer’s inequality of bargaining power and to provide a countervailing force to capital is to promote and support collective bargaining on the part of workers.22 Within this paradigm, labour law needs to establish the rights of workers to organise, to strike, and to compel employers to come to the table and negotiate about terms and conditions of employment. Provided that organised labour develops sufficient bargaining power, collective agreements should on this view establish fair terms and conditions of employment and mechanisms to ensure fair management of the enterprises through forms of joint regulation with worker representatives, such as trade union officials. Supporters of this agenda for labour law also assert that through collective organisations workers can achieve voice at work and exercise a kind of industrial democracy.23 In the middle of the twentieth 21  Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (Hart 2006); Guy Mundlak, ‘The Third Function of Labour Law: Distributing Labour Market Opportunities among Workers’ in Davidov and Langille (n 1); ACL Davies, ‘Identifying “Exploitative Compromises”: The Role of Labour Law in Resolving Disputes Between Workers’ (2012) 65 Current Legal Problems 269; Guy Davidov ‘Setting Labour Law’s Coverage: Between Universalism and Selectivity’ (2014) 34 Oxford Journal of Legal Studies 543; Alan Bogg et al (eds), The Autonomy of Labour Law (Hart 2015). 22  See eg Karl Klare, ‘Countervailing Workers’ Power as a Regulatory Strategy’ in Hugh Collins, Paul Davies, and Roger Rideout (eds), Legal Regulation of the Employment Relation (Kluwer Law International 2000); Keith Ewing and John Hendy, ‘New Perspectives on Collective Labour Law: Trade Union Recognition and Collective Bargaining’ (2017) 46 Industrial Law Journal 23. More broadly on the different roles of trade unions, see eg Keith Ewing, ‘The Function of Trade Unions’ (2005) 34 Industrial Law Journal 1; Gillian Lester, ‘Beyond Collective Bargaining: Modern Unions as Agents of Social Solidarity’ in Davidov and Langille (n 1). 23  Alan Bogg and Tonia Novitz (eds), Voices at Work:  Continuity and Change in the Common Law World (OUP 2014).

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century, collective bargaining was typically the preponderant method by which the terms of employment relations were fixed in advanced industrial economies. Collective agreements were enforced either by a legal mechanism, such as arbitration, or a court or by the threat of lawful industrial action. Based on this industrial context and the widespread development of unions and collective bargaining, the paradigm of labour law focused on the rules of collective labour relations between management and unions, and paid rather less attention to individual contracts of employment or other forms of regulation. In contrast, the paradigm association with the label ‘employment law’ places the contract of employment at the centre of the subject. The core legal materials of employment law consist not only of the legal rules governing the formation and enforcement of contracts of employment, but also the variety of modern legislation and regulations that to some extent have replaced collective bargaining as the principal mechanism for ensuring fairness at work. Important regulations of this kind might include laws against discrimination, guarantees for minimum wages, health and safety regulations, laws that place upper limits on hours of work, and more generally regulations that protect employees against unfair treatment by employers and against exposure to unnecessary risks. The label ‘work law’ extends the paradigm to people who are not classified by the law as employees, but who nevertheless are economically dependent on the sale of their services to others. The label ‘work law’ can also extend to unpaid workers such as volunteers and prisoners.24 The normative vision behind these conceptions of ‘employment law’ and ‘work law’ views mandatory regulation that provides workers with legally enforceable individual rights as usually the best way to secure the goals of labour law.25 That view will be strengthened during periods when trade unions are weakened and collective bargaining is ineffective to secure fair terms and conditions of work. That view can also be undermined if the coverage of employment law rights becomes so diminished that a social division emerges between those who benefit from a good package of legal rights and those routinely or systematically excluded from legal protection.26 Many other paradigms for labour law seem possible. Harry Arthurs has argued that labour law should be discussed as part of a broader field of the law of economic subordination and resistance.27 Feminists have frequently questioned whether the paradigm should be based exclusively on paid work or whether it should include unpaid work in the home.28 This integration of paid and unpaid productive activities may also be described as ‘work law’. In the German and French traditions, ‘social law’ (‘droit social’) takes broad issues of social justice and insurance against economic security as a central normative theme and organising paradigm.29 The law is envisaged as creating an ‘economic constitution’

24  Noah D Zatz, ‘The Impossibility of Work Law’ in Davidov and Langille (n 1); Noah D Zatz, ‘Does Work Law Have a Future If the Labor Market Does Not?’ (2016) 91 Chicago-​Kent Law Review 1081. 25  Hugh Collins, ‘Against Abstentionism in Labour Law’ in John Eekelaar and John Bell (eds), Oxford Essays in Jurisprudence: Third Series (OUP 1987). 26  See in this volume the chapters by Einat Albin, Mark Freedland, and Sabine Tsuruda. 27  See Harry Arthurs, ‘Labor Law as the Law of Economic Subordination and Resistance: A Thought Experiment’ (2013) 34 Comparative Labor Law and Policy Journal 585. 28  Joanne Conaghan in this volume; and see Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work and Family: Critical and Comparative Perspectives (OUP 2005). 29  Léon Duguit, Le droit social, le droit individuel et la transformation de l’état (Social Law, Individual Law and State Transformation) (Presses Universitaires de France 1911). The German tradition was similar: Otto von Gierke, ‘The Social Role of Private Law’ (2016) (originally ‘Die soziale Aufgabe des Privatrechts’ (Berlin 1889)) translated and introduced by Ewan McGaughey, ‘The Social Role of Private Law (Otto von Gierke, 1889)’, Social Science Research Network, 2016, SSRN Scholarly Paper ID 2861875  accessed 19 February 2018.

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that ensures the fair operation of markets and the division of labour.30 On that approach, boundaries between public and private law, and between employment regulation and social security systems, dissolve, for they are attributed with common objectives that include the promotion of an efficient labour market and the protection of workers from the vicissitudes of market forces such as poor wages and unemployment. This broad perspective of social law arguably informs the current employment policy of ‘flexicurity’ of the EU.31 It also informs many of the ideas in the influential Supiot Report that viewed employment regulation in the context of the whole life-​cycle of workers, from education and training to retirement and dependence on a pension.32 That social and labour market perspective was also at the heart of the pre-​industrial statutory regulation of labour markets in England, which restricted the free movement of labour, fixed wages, and regulated access to skills and good jobs.33 Boundaries between public and private law are also challenged when the subject is regarded as being founded on human rights, an approach that is sometimes also called the constitutionalisation of labour law.34 Philosophical justifications for human rights or for treating rights as constitutional imperatives can be appropriated as arguments for the need for labour law in the form of protection of human rights.35 This stance leads to debates about which labour rights should be classified as human rights in constitutions. It also poses the question of the extent to which traditional liberal rights, such as freedom of expression, should be applied to the employment relation. Viewing the subject as a study of human rights at work is connected to the idea that the employment relation resembles the power relation of an authoritarian state over its citizens. If workers’ rights can be viewed as fundamental or human rights, these are stringent entitlements with an increased moral and legal force. They can therefore be a countervailing legal force against an employer’s power based on ownership of private property. They may also ensure that workers’ essential interests are not sacrificed in the political compromises of legislation. In this context, the judiciary plays a vital role in defending workers’ rights, a task that some courts may be reluctant to perform.36 The human rights at work paradigm can also embrace the idea of transnational labour law. In recent decades, the challenges posed by the economic forces of globalisation have been understood to undermine the effectiveness of national labour laws.37 National laws may need to be supplemented or even replaced by transnational or international labour 30  Ruth Dukes, The Labour Constitution (OUP 2014). 31  Commission, ‘Towards Common Principles of Flexicurity: More and Better Jobs Through Flexibility and Security’, COM (2007) 359 final; Commission, ‘An Agenda for New Skills and Jobs:  A European Contribution Towards Full Employment’, COM (2010) 682 final. See Catherine Barnard, ‘EU Employment Law and the European Social Model: The Past, the Present and the Future’ (2014) 67 Current Legal Problems 199. 32  Alain Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (OUP 2001). 33  Statute of Labourers 1351, Statute of Artificers 1563. 34  Keith Ewing, ‘Democratic Socialism and Labour Law’ (1995) 24 Industrial Law Journal 103; Virginia Leary, ‘The Paradox of Workers’ Rights as Human Rights’ in Lance Compa and Stephen Diamond (eds), Human Rights, Labor Rights, and International Trade (University of Pennsylvania Press 1996); Harry Arthurs, ‘Labour and the “Real” Constitution’ (2007) 48 Les Cahiers De Droit 43; Guy Mundlak, ‘Industrial Citizenship, Social Citizenship, Corporate Citizenship: I Just Want My Wages’ (2007) 8 Theoretical Enquiries in Law 719; Virginia Mantouvalou, ‘Are Labour Rights Human Rights?’ (2012) 3 European Labour Law Journal 151; Pablo Gilabert, ‘Labor Human Rights and Human Dignity’ (2016) 42 Philosophy and Social Criticism 171; Joe Atkinson in this volume. 35  Atkinson in this volume; see also Collins (n 1). 36  See the sceptical reflections in Keith Ewing, ‘The Human Rights Act and Labour Law’ (1998) 27 Industrial Law Journal 275; Keith Ewing and John Hendy, ‘The Trade Union Act 2016 and the Failure of Human Rights’ (2016) 45 Industrial Law Journal 391. Cf Keith Ewing and John Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law Journal 2. 37  See eg Joanne Conaghan, Richard M Fischl, and Karl Klare (eds), Labour Law in an Era of Globalization (OUP 2002).

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laws, for only such transnational laws may be capable of providing a bulwark against social dumping in the context of rapid movements of capital investment and economic migration of workers.38 Studies of transnational labour law, such as EU employment law, typically pay special attention to regulation of equal opportunities in labour markets, restrictions on the free movement of workers placed by immigration laws, and protections for workers against capital restructuring that intensifies in response to global pressures on domestic markets. As well as focusing on the governance of labour markets, transnational labour law may also be grounded in respect for human rights. The European Convention on Human Rights is providing a fertile source of legally binding principles that require both respect for individual liberties in the workplace and rights for collective organisation and bargaining.39 The Charter of Fundamental Rights of the European Union appears to have an unrealised potential to reorient EU labour law towards respect for fundamental rights under the banners of equality and solidarity rights. Using these transnational sources of binding rights, together with international norms and national constitutions, it makes sense to explore a new paradigm for labour law under the rubric of ‘human rights at work’.40 Although there is considerable continuity between the values and principles that motivate these paradigms of labour law, employment law, work law, social law, human rights law, and transnational labour law (which we will collectively refer to as labour law for convenience), some differences emerge. These differences can be explored by philosophical enquiry. It may be suggested, for instance, that the high value attached to individual rights, especially human rights, comes to the fore in normative discussions of employment law rather than labour law, because the focus in employment law is always on the individual employment relations. In contrast, in the paradigm of labour law understood narrowly as collective labour relations, a particularly important value is solidarity between workers doing the same jobs and ideally solidarity between much wider groups of workers. Yet these differences should not be exaggerated, for it is certainly possible to derive a strong argument for collective labour law institutions from individual liberties,41 and equally individual employment rights such as the right to a minimum wage can be justified on the basis of collective considerations of distributive justice.42 One of the tasks of investigations into the philosophical foundations of labour law (in its broadest sense) is to tease out these contrasting normative foundations buried within competing conceptions of the subject. The exploration of the underlying values of labour law brings out insights that unify it and challenge traditional assumptions.43 These elucidations should help us to understand better what we believe should be the proper scope and purpose of the subject.44

38  Ton Wilthagen (ed), Advancing Theory in Labour Law and Industrial Relations in a Global Context (North Holland 1998); Yossi Dahan, Hanna Lerner, and Faina Milman-​Sivan (eds), Global Justice and International Labour Rights (CUP 2016). 39 Virginia Mantouvalou, ‘Labour Rights in the European Convention on Human Rights:  An Intellectual Justification for an Integrated Approach to Interpretation’ (2013) 13 Human Rights Law Review 529. 40  See eg Tonia Novitz and Colin Fenwick, Human Rights at Work: Perspectives on Law and Regulation (Hart 2010); Bob Hepple (ed), Social and Labour Rights in a Global Context (CUP 2002). 41  See Bogg and Estlund in this volume. 42  See Davidov in this volume. 43  See Zatz in this volume. 44  In this volume, other examples of this sort of philosophical enquiry include: Langille’s explanation of the expanding scope of labour law by reference to Sen’s capabilities approach; and Collins’s emphasis on the significance of the protection of employee’s civil liberties and equal respect within a paradigm of employment law informed by strong liberal values.

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(c) Concepts in labour law A third general task that philosophical enquiry will assist is the clarification of some of the difficult concepts used in labour law. Labour law deploys a wide range of indeterminate and contested concepts. This becomes evident, for instance, when examining labour rights that are classified as human rights, and is also true of human rights law more generally. There are a number of controversial examples. Consider, for instance, the right to work. The United Nations Universal Declaration of Human Rights (UDHR) states at Article 24 that ‘Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.’ Does this mean that everyone should have the work of their choice? Or that everyone should have non-​exploitative work? Some scholarship has attempted to explore the meaning of the right to work, sometimes using philosophical ideas for this purpose, such as the idea of self-​realisation that is achieved through work.45 The right to rest and leisure, including a right to paid holidays, in Article 24 of the UDHR has also been debated in theoretical scholarship, with some saying that it does not belong to a list of human rights,46 and others suggesting that denial of this right would violate human dignity.47 Or consider the right to ‘just and favourable remuneration’. Article 23.3 of the UDHR proclaims that ‘Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.’ How should we understand this idea of just and favourable remuneration? Does it mean no more than that workers should be paid the going market rate for their labour? Or does the reference to a life worthy of human dignity mean that workers should receive a living wage, even if it exceeds the market rate for the job? Or does the principle merely require the state to supplement earned income when it falls below the poverty line for a family? Friedrich Engels thought that the whole idea of advancing claims for a fair wage was nonsense, because it seemed to amount to no more than a claim for the poverty wages of the going market rate.48 Yet it is possible to attribute a more determinate and principled meaning to the idea of a just wage. There are several conceivable routes towards developing a coherent concept of the idea of a fair wage. One possibility is to consider what the difference might be between a fair wage and exploitation.49 Yet that strategy inevitably raises the further contested question of what counts as exploitation.50 We cannot understand and assess these difficult and contested concepts without considering their moral meaning. This endeavour cannot only be a technical enterprise of putting together the different interpretations that courts have adopted or that the drafters of the legislation and international conventions may have preferred. A  dictionary definition of the concepts will also not suffice, because the dictionary cannot do our moral thinking for us.51 To understand these concepts, we need to uncover the principles of political morality underlying them.52 Answers to complex questions such as the ones that labour lawyers 45  Mantouvalou (n 2). 46  Maurice Cranston, ‘Human Rights, Real and Supposed’ in DD Raphael (ed), Political Theory and the Rights of Man (Macmillan 1967). 47  Jack Donnelly, Universal Human Rights (2nd edn, Cornell University Press 2003) 28. 48  Friedrich Engels, ‘A Fair Day’s Wages for a Fair Day’s Work’, The Labour Standard No 1 (London, 7 May 1881) 1. As an alternative to the pricing of labour according to supply and demand, Engels urged workers to seize ownership of the means of production and set their own wages, which would be presumably fair. 49  Horacio Spector in this volume. 50  See Spector, Wolff, and Mantouvalou in this volume. 51 Jeremy Waldron, ‘Social Citizenship and the Defence of Welfare Provision’ in Liberal Rights—​Collected Papers (CUP 1993) 299. 52  Ronald Dworkin, ‘In Praise of Theory’ (1997) 29 Arizona State Law Journal 353.

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address can only be discovered by considering a range of principles that justify labour law. In some instances of the exploration of concepts, as in the case of exploitation, we are trying to understand better the variety of meanings that have been signified by the word in order to dispel confusion and assist in normative arguments about how to address the problem of exploitation.53 In other instances, the exploration of words is not as significant perhaps as the normative enquiry into what the word ought to mean in its particular legal context. For example, when the European Court of Human Rights is asked to rule on the meaning of the right to freedom of association, it views its task as not merely providing a choice between the variety of possible meanings, but rather its considered view about how the European Convention on Human Rights ought to protect the activities of trade unions with respect to collective bargaining and industrial action. Similarly, in these philosophical explorations, the answer to reflections on the meaning of hard concepts depends in part upon the normative goals that one might wish to attribute to the law.

2.  The Relevance of Theories of Justice In relation to some other fields of the law, the search for the normative foundations of the subject has been conceived rather narrowly. For example, in relation to contract law, the principal idea has been that the moral duty to keep one’s promises provides the essential moral justification for the law enforcing contracts.54 Although this idea has many opponents and encounters difficulties in accounting for the law of contract, it provides a focus for discussion of the moral foundations of the law of contract that confines the field to a branch of moral philosophy. Similarly, an influential (though by no means as dominant) theoretical approach to tort law has been to insist that its role is merely to protect existing legal rights, not to attempt to secure policy goals such as the reduction of accidents or the device of insurance spreading accidental losses throughout the community as far as possible. These focused approaches to investigations of the normative foundations of branches of private law are not imitated in labour law. Though perhaps attractive to libertarians examining the employment relation, a narrow moral enquiry has rarely appealed to most labour law specialists, who prefer to link labour law to a more capacious set of values. Why should labour law look more broadly into moral and political philosophy for its normative foundations than many other legal subjects like contract law and tort law? The answer seems to be that labour law presupposes and builds on the institutions of private law such as contract, tort, and property law with a view to adjusting the governing rules in particular instances. Labour law assumes that the parties enter into a contract when they form an employment relation. Labour law assumes that private ownership provides the explanation of why an employer has control over the capital assets of the business. Private law provides some kind of framework for governing work relations, but this legal framework is certainly not the same as the distinctive legal fields of labour law and employment law that developed in the twentieth century. The normative justification for labour law must therefore reach beyond the justifications for private law rules, and discover more compelling arguments and justifications for partly overriding those private law rules with different, often mandatory, regulations. In other words, the justice achieved by the application of the ordinary rules of private law is regarded by labour lawyers as an inadequate scheme of

53  As above (n 50). 54  Gregory Klass, George Letsas, and Prince Saprai (eds), Philosophical Foundations of Contract Law (OUP 2014).

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justice for the employment relation and associated institutions. In the search for normative foundations, labour lawyers therefore reach for other schemes of justice. Those that come most readily to hand are to be found in general political theory, in which there are many candidates for explanation of the key elements of a just society and system of government. These broader values may be loosely described as theories of social justice. These theories of social justice seek to describe, justify, and promote moral principles that will achieve justice in a given society (or more broadly the world) with regard to the distribution of wealth, power, opportunities, freedoms, and other capabilities and material goods that we have reason to value as part of enjoying well-​being and a valuable life.55 Political theories of the state, justice, the constitution, fundamental rights, and the idea of the rule of law consider how best (morally) to construct a framework for such a just society deserving of our obedience to its laws. But do those insights about the nature of a just society and its appropriate form of government have anything to tell us about how labour law should address the more concrete, limited issues, with which it is typically concerned, such as the legal framework for collective bargaining, protection of workers against unjust dismissal or unfair discrimination, and minimum wages? Can we derive valuable and credible insights for labour law from the abstract discussions of justice provided by liberal political philosophy? Labour lawyers believe that the need for labour law as a specialist branch of the law is intimately linked to conceptions of social justice. Scholars have also examined political theories of democracy at state level, and their implications for the governance of the workplace. In democratic theory, the central idea is that ‘in a certain kind of human association, the process of government should as far as possible meet democratic criteria, because people involved in this kind of association possess a right, an inalienable right to govern themselves by the democratic process’.56 Workplace participation has also been grounded on democratic theory with the key idea being that the workplace is a political system itself, and individuals in this political system should be able to exercise control in the way that they are governed in this context, in a manner analogous to the control that they exercise at state level.57 Labour law scholarship has provided a justification for workplace participation on the basis of democratic theory.58 Other kinds of theoretical approaches to an examination of labour law are of course possible. A  critical historical approach seeks to uncover the structures of ideas and perhaps their internal contradictions and development.59 A  social theory approach might seek to understand how labour law contributes to social cohesion or social disorder. Such an approach grounded in sociology might also cast doubt on the coherence or validity of concepts that seem to be taken for granted in the deliberations of moral and political philosophy.60 Feminism has also provided a powerful critique of the paradigm of labour law and how it conceives the key issues.61 Although there are elements of these different

55  Davidov in this volume. 56 Robert Dahl, A Preface to Economic Democracy (University of California Press 1985) 56–​7 (original emphasis). 57  Carole Pateman, Participation and Democratic Theory (CUP 1970) 43. 58  Sidney Webb and Beatrice Webb, Industrial Democracy (Longmans 1897). See also Karl E Klare, ‘Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform’ (1989) 38 Catholic University Law Review 1; Alan Bogg, The Democratic Aspects of Trade Union Recognition (Hart 2009); Keith Ewing, ‘The Importance of Trade Union Political Voice’ in Bogg and Novitz (n 23); Martin O’Neill and Stuart White in this volume. 59  Conaghan in this volume. 60  Zatz in this volume adopts this approach to the concept of the labour market. 61  Joanne Conaghan, ‘Labour Law and Feminist Method’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 93; see also Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work, and Family (OUP 2005).

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methodologies in the contributions to this volume, most of the contributors have reached for political philosophy as their inspiration for reflection on the foundations and normative scope of labour law.

3.  The Perils of Appropriating Political Theory Having made the case for the necessity of political theory when reflecting on the philosophical foundations of labour law, we should acknowledge that we may encounter difficulties in applying some of these ideas and theories of justice to an enquiry into the foundations of labour law. There may be a risk of some kind of unsatisfactory transplant in the sense that ideas, concepts, and principles designed to address one set of questions in political philosophy will not function well or in a similar way when they are applied to resolve issues about the normative foundations of labour law. Some political theorists have specifically discussed the labour relationship. Philosophical literature has examined directly workers’ exploitation, for instance.62 However, most political theories focus on the role of the state in relation to its citizens. Is it problematic to apply this kind of analysis directly to the employment relation? It may be helpful to distinguish the different ways in which we might borrow insights from political theory to help to establish the normative foundations of labour law. There seem to be three possible strategies in making what might be called the transplant from political theory to labour law: (a) methodological imitation; (b) reapplication of key concepts of political theory; and (c) exegesis of implicit positions.

(a) Methodological imitation The first approach is to copy the methodology from a particular political theory, such as the work of John Rawls on justice,63 and then apply the method to construct a just system of labour law.64 Imagine an ‘original position’ of the kind envisaged by Rawls, where the task is for everyone to agree upon the rules about the institution of employment and its legal regulation. Behind a ‘veil of ignorance’, no one knows if they will be an employer or an employee, a senior manager, an agency worker, or regular employee or a casual worker, etc. They understand how the economy works in general and that the division of labour is required for reasons of efficiency, and that some savings on transaction costs can be achieved by granting one party to a contract the power to direct the performance of the other. What kinds of rules and institutions would reasonable people agree to in this artificial situation that is designed to rule out considerations of self-​interest? This approach using (broadly speaking) Rawls’s methodology was applied by Jackson with respect to the law of corporate insolvency.65 The question is what a hypothetical meeting of creditors of a company would agree to be the fair rules for the distribution of assets in the event of insolvency between the various groups of creditors. That approach can work reasonably well in the context of insolvency, because in the end the issues are all about money and the allocation of risk of loss. In labour law, things are not so simple because the parties in the original position would have to reach agreement on such issues as power, fairness, and self-​affirmation through work, as well as the distribution of resources.

62  See literature on exploitation cited above (n 4). 63  John Rawls, A Theory of Justice (OUP 1972); John Rawls, Political Liberalism (Columbia University Press 1993). 64  eg Collins (n 1). 65  Thomas H Jackson, The Logic and Limits of Bankruptcy Law (Harvard University Press 1986).

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Where might the Rawlsian methodology take us with respect to the normative foundations of labour law? Rawls’s general objective was to avoid both a libertarian position in which there is minimal government and redistribution, and also to avoid a general reliance on utility as a comprehensive guide to justice. His methodology in effect seeks to protect fundamental rights and minimum standards of welfare, but avoid detailed imposition of programmatic welfare policies. If the economic argument that the structure of the contract of employment provides an efficient use of labour power is correct and accepted by the parties to the original position with respect to labour law, the general features of the institution of employment, including the subordination of the employee to the employer’s demands for performance, would be broadly preserved by the parties in the original position. However, it seems likely that they would also want some guarantees against the abuse of power by employers and at least protections against oppressive economic arrangements of the kind found in sweatshops. Perhaps, if sufficiently risk-​averse, people in the original position would also agree to a law requiring ‘fair wages’ or at least a ‘living wage’. Rawls’s emphasis on the point that the protection of rights or civil liberties would be a key outcome of agreement in the original position might also lend support to the argument that the participants in the original position would agree to the protection of the human rights of workers at work, which might not only include rights such as freedom to manifest a religion and the right to freedom of expression, but also extend to the right to work and the right to freedom of association including the right to join a trade union. There are, of course, many other kinds of methodologies apart from Rawls’s original position that can be employed in political theory. Some start from a few basic moral ideas, such as respect for human rights, and seek to elaborate the consequences of deriving the structures for a just society by reference to that idea. This methodology could be applied to labour law by exploring the implications of founding labour law on the protection and elaboration of human rights in the context of the workplace, an agenda explored by several authors in this volume.66 Instead of human rights, the powerful motivating idea behind labour law might be ascribed to freedom,67 or equality,68 or dignity,69 or some other widely acknowledged fundamental political principle, such as Sen’s capabilities approach.70 There has also been a strong utilitarian or welfare theme in labour law in which maximising general wealth has been a guiding methodology, as in the example of regulating the employment relation for the purpose of maximising the competitiveness of businesses. Are there problems or dangers in using the methodology of political theories? The main danger derives from the difference in purpose of political theory and investigations of the philosophical foundations of labour law. Political theories usually start with very minimal conditions or assumptions that avoid making many presuppositions about human nature and the world and how social systems work. They try to justify their theories of justice or liberty on the basis of a few core principles and basic assumptions about human nature and the social organisations of human beings. Although the presuppositions may be more numerous than appears at first sight, the strength of a political theory is often regarded as lying in its ability to generate interesting and plausible conceptions of justice out of relatively minimal assumptions. In contrast, when we are looking for the normative foundations of labour law (or indeed some other branch of law), though we may be interested in the implications of first 66  Atkinson; Gilabert; Bogg and Estlund. 67  Cabrelli and Zahn in this volume. 68  Davidov in this volume. 69  Gilabert in this volume. 70  Bruce Archibald, ‘The Significance of the Systemic Relative Autonomy of Labour Law’ (2017) 40 Dalhousie Law Journal 1; Langille in this volume.

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principles and of views about human nature, we also need to keep a focus on what measures we find in the existing labour laws and employment law. We are looking for the normative foundations of something that already exists, albeit perhaps in a flawed form. We cannot start from a basic principle and ignore the question of whether its implications actually have much fit with the current law. Unless we are content to let the methodology of political theory take us far away from the kinds of labour laws that we actually have, we need to recognise that the search for normative foundations of labour law is to some extent a different kind of enterprise. It is an interpretive exercise in the sense articulated by Ronald Dworkin:71 we are examining an existing human institution and trying to explain it by presenting it in its most coherent and morally compelling form. Moral principles and concepts can be drawn from political theory, but it is a mistake simply to impose them on the existing practices known as labour law whether or not they fit and explain them. We are looking for an interpretation of labour law that presents it in its best light, not proposing a new theory of justice that has some application to work relations.

(b) Reapplication of key concepts A second kind of use of political philosophy is to copy some of the key concepts in a particular political theory and apply those concepts to employment law and associated institutions, such as collective bargaining. Conceptions of democracy might be applied to collective bargaining. The value of protecting particular human rights such as privacy or freedom of expression could be applied to the terms of contracts of employment. These transplants of concepts of moral and political theory into interpretations of the foundations of labour law may produce genuine insights, but there are evident dangers in trying to use the same concept in two different contexts—​abstract theories of justice or other moral ideas, on the one hand, and interpretations of labour law, on the other, without placing adequate weight in the particularities of the employment context. For example, in what have been called ‘republican’ theories of freedom and justice,72 the central claim is that the main purpose of a constitutional framework for a society is to minimise the exercise of uncontrolled power by one person or group over all the others. The prerogative power of a king provides an example of such arbitrary power. To prevent such domination by a monarch or later a dictator, a political theorist in this stream of republican thought might support various proposals including strict observance of the rule of law by all including the most powerful, democracy as a mechanism of control and accountability, constitutional government, and perhaps more generally measures designed to prevent people acquiring domination or at least too much dominating power over others. Observing the many successes of such a republican theory of government, we might attempt to reapply these notions of domination and constitutional government to employment relations and an interpretation of the foundations of labour law.73 Such an endeavour is encouraged by republican theorists themselves, who sometimes liken the powers of an employer to those of an arbitrary dictator.74 We could say plausibly enough that employment relations are a situation where there is considerable potential for the exercise of domination by one party (the employer) over the

71  Ronald Dworkin, Law’s Empire (Harvard University Press 1986). 72  Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1977); Cecile Laborde and John Maynor (eds), Republicanism and Political Theory (Blackwell 2008); Frank Lovett, A General Theory of Domination and Justice (OUP 2010); Alex Gourevitch, ‘Labor and Republican Liberty’ (2011) 18 Constellations 431. 73  Cabrelli and Zahn (n 1). 74  Pettit (n 72) 22.

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other (the worker). Employment law could be seen as an appropriate ‘republican response’ to domination. In pursuit of the application of republican ideas to labour law, it might be proposed, for instance, that the law should include, amongst other things, tight regulation to prevent the abuse of power by employers and managers, some kind of democratic representation or voice at work, and, in an endeavour to reduce the amount of domination that is produced in the employment relation, it might also lead to measures to fix fair basic standards such as a minimum wage and maximum hours. Another example of reapplication of key concepts might be attempts to justify the moral foundations of labour law on the idea of human rights. Some human rights documents were perhaps originally conceived as establishing primarily civil and political rights that would be exercised by individuals against their governments. Even so, many of these human rights documents, such as the UDHR, had some references to social and economic rights, including labour rights, so they might help to provide some foundations for labour law. Furthermore, some general civil rights and freedoms such as rights to dignity, liberty, and equality, can be used to justify a variety of legal structures including rules regarding the employment relation. Are there problems or dangers in transplanting the key concepts of moral and political theory to provide an explanation of the normative foundations of labour law? The problem that may be encountered is that a concept such as ‘domination’ or ‘human rights’ or ‘capability’ may be taken out of its original context and given a new meaning with a whole set of fresh implications. Although it may appear that the original political theory has provided the key concepts in a proposed account of the normative foundations of labour law, it may be the case on closer inspection that the meaning of the concepts has changed in significant ways when they are reapplied to labour law. With respect to domination, for instance, the question is whether some important dimensions of the concept alter as we move the context from the unbridled power of an arbitrary dictator to apply it to the more powerful party to the contract of employment.75 In relation to human rights, some theories examine duties imposed primarily on state institutions, while others examine duties imposed on everyone.76 When considering these theories, do the key concepts of human rights alter when we shift the context from claims that sovereign states should not be permitted to violate the human rights of anyone in their territory to a claim about the proper limits of the employer’s power? For instance, does the meaning of the right to privacy change when it is used by employees against an employer’s intrusive surveillance or testing as opposed to its similar uses by public authorities?77 Furthermore, is it even appropriate to think that private employers should have the same duties to respect and promote human rights as those undertaken by institutions of the state? On this issue, it can be said that employers have duties of justice on the basis of their role in the institution of employment. In any case, in this volume, since we discuss labour law, our primary focus is on the role of the state in delivering principles of social justice through the regulation of the institution of employment. This change of meaning in the transfer from theories of justice to their application to labour law may have sometimes happened with the concept of capability used by Amartya 75  Guy Davidov, ‘Subordination vs Domination: Exploring the Differences’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 365; Collins in this volume. 76  For a theory that focuses on state duties, see Charles Beitz, The Idea of Human Rights (OUP 2009) 109; for a theory that focuses on duties on everyone, see Henry Shue, Basic Rights—​Subsistence, Affluence, and US Foreign Policy (2nd edn, Princeton University Press 1996) 157; James Griffin, On Human Rights (OUP 2008). 77  For shifts in the meaning of the right to privacy in the employment context, eg, see Virginia Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Spaces’ (2008) 71 Modern Law Review 912.

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Sen. His attack on material and pecuniary notions of welfare and well-​being that were used by international financial institutions was justified by reference to his idea of the greater importance of positive freedom to achieve meaning for one’s life, an idea that he called ‘capability’.78 In the same way, we might transpose the idea of ‘capability’ to provide normative foundations for labour law by saying that in the pursuit of fairness or justice at work, labour law should be concerned with not only material conditions of work produced by inequality of bargaining power, but also with a worker’s opportunity for self-​realisation through work.79 Whilst this line of enquiry looks promising, it is unclear where it leads. Is it possible, for instance, to move from that philosophical position about the importance of the value of positive freedom in any judgement about welfare, to an assertion that labour law needs to have certain kinds of protective rights or should protect some basic labour rights of workers? In the context of a theory of justice, the idea of capability seems to be an aspirational goal and a measure of whether a situation has improved or not. It does not appear to provide a conceptual apparatus for a programmatic theory of justice that might provide concepts and guides to an elaboration of a principled discussion of labour law. Improving the capabilities of individuals may indeed be a worthwhile goal, but it is unclear how it might be applied to help to fix minimum standards and entitlements of employees. The difficulties of the transplantation and adaption of ideas and concepts drawn from political theory and applied to labour law provide a fertile source of debate, distraction, and perhaps misunderstanding. The investigation of the ensuing problems can provide a valuable source of insight in itself. We should not be concerned that ideas drawn from political theory may not prove fruitful or inspirational. The concern voiced here is rather that those ideas will often be subjected to unacknowledged or unconscious transformations, so that the link to the original idea may sometimes be tenuous at best.

(c) Exegesis of the principles of political theories It is rare that political philosophy engages with normative questions about labour law. There may be some broad principles that may be obviously relevant, such as a stress on equality of opportunity that can certainly support some employment rights, not least laws against discrimination, or the prohibition of exploitation that can support other employment rights, such as a fair wage. In order to address this problem that political theory offers little by way of explicit guidance about labour law, the third strategy linking political theory and labour law holds that some rules or broad principles about labour law are already implicit in the leading works of political theory, even though they may not have been drawn out explicitly by the original authors of the theories of justice. The task becomes one of proposing a close reading of these works on political theory in order to discover clues about their implicit recipe for labour law’s rules and principles. It is also possible within this framework to argue that although there is no direct textual support for a particular aspect of employment law, a particular rule or principle is inherent in the explicit statements of the authors, or is an inevitable consequence of the adoption of a particular explicit statement in the political theory. For example, it might be claimed that Rawls’s theory of a ‘basic structure’ that provides a guarantee of fairness in civil society contains within it the rudiments of a scheme for employment law. Rawls’s theory holds that in the original position the parties would agree

78  Amartya Sen, Development as Freedom (OUP 1999). 79  Brian Langille pursues this line of thought in this volume.

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to certain guarantees about civil liberties, democracy, equal opportunities, and minimum standards of welfare. Rawls recognises that free markets are valuable as generators of material goods, but that they may also lead to gross disparities of wealth. It is clear that he envisages that the system of taxation and public welfare policies would address those gross disparities. What Rawls does not say, however, is whether he would regulate markets and market transactions to prevent those gross disparities of wealth and perhaps other problems of injustice from arising. On one view, there is no need to regulate the market or interfere with freedom of contract if there is an effective progressive system of taxation and generous welfare payments; on the opposite view, which is often associated with Gerry Cohen,80 regulating the market and controlling contracts was surely envisaged (implicitly) by Rawls as another tool for preventing gross disparities from arising. On the former view, therefore, there is no reason to have, for instance, a minimum wage law, for the government and its system of welfare will (under the rules of the basic structure) rectify labour market outcomes by some kind of tax credit or in-​work benefit system; on the latter view, it would be irrational for Rawls and those seeking to follow his general theory of justice not to support a minimum wage, for that legislation prevents very efficiently the worst disparities in wealth and income from arising at source.81 There are many possible positions within this spectrum between complete freedom of contract and detailed regulation of contracts including employment relations. Much turns on the extent to which it is accepted that private employers should have any duties at all with respect to securing distributive justice. All of these positions may find some textual support in the work of Rawls, so we should be cautious when trying to extrapolate from these abstract philosophical ideas to propose normative standards for labour law. It is certainly worth reflecting upon what insights might be gained about the normative foundations for labour law by extrapolating from political theories, but we are unlikely to obtain determinate answers. Another problem may arise from a close reading of the texts of a political theory for clues about the normative foundations of labour law. We may discover that the author of the political theory has endorsed two important principles, both of which have obvious applications to the kinds of issues that arise in labour law. The problem is rather that these principles clash in the particular instance of labour law, and the political theory offers no obvious way in which to reconcile these competing principles. For instance, the political theory may endorse free markets and freedom of contract as a general principle that is conducive to autonomy or positive freedom, but also endorse protections against exploitation or demeaning work. If we cannot discover any clear indications within the theory about how to reconcile these principles, perhaps by giving one priority over the other, we will only extract indeterminate guidance from the political theory. In a sense, the political theory may only state at a higher level of abstraction the problem with which labour law may be wrestling without offering any further guidance about a process or method for resolving the issue in line with a general theory of justice. It is suggested that problems of linking political theory to labour law will be a common issue when we investigate the philosophical foundations of labour law. The detailed kinds

80  For a variety of views of this kind: Gerry A Cohen, ‘Where the Action Is: On the Site of Distributive Justice’ (1997) 26 Philosophy & Public Affairs 3; Liam B Murphy, ‘Institutions and the Demands of Justice’ (1999) 27 Philosophy & Public Affairs 251; Arthur Ripstein, ‘The Division of Responsibility and the Law of Tort’ (2004) 72 Fordham Law Review 1811; Arthur Ripstein, ‘Private Order and Public Justice:  Kant and Rawls’ (2006) 92 Virginia Law Review 1391; Seana Valentine Shiffrin, ‘Incentives, Motives, and Talents’ (2010) 38 Philosophy & Public Affairs 111; Samuel Scheffler, ‘Distributive Justice, the Basic Structure and the Place of Private Law’ (2015) 35 Oxford Journal of Legal Studies 213. 81  Anthony Kronman, ‘Contract Law and Distributive Justice’ (1980) 89 Yale Law Journal 472.

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of questions that interest those seeking to find the normative foundations of labour law will simply not be answered except in broad terms. In the case of Rawls, we cannot be sure what he might have wished to say about labour law. It may be fun and enlightening to have intelligent disagreements about what he ought to have said, given his general position on the principles of justice, but these arguments are unlikely to deliver firm conclusions.

4.  Towards a General Theory? Assuming that we can navigate safely around those methodological reefs of drawing on political and moral philosophy to help to elucidate the foundations of labour law, there remains the question of what outcomes might be expected from these investigations. Is deeper reflection on the philosophical foundations of labour law going to produce a general theory of the principled foundations of the subject and an associated clear paradigm for the subject that together might be regarded in some sense as a conclusion to this line of thought? Some contributors to this volume might be read as having that ambition.82 More commonly the contributors may be read as articulating views about what should be regarded as the principal aim of labour law, without denying that other aims and principles could be sensibly incorporated into labour law as well. In the Foreword to the volume, however, Harry Arthurs, speaking from long experience, pours cold water on the ambition to develop a general theory, let alone a new general theory. He describes the scholarly efforts to develop philosophical principles for labour law as a kind of alchemy, a task that fascinates brilliant minds, but which has failed to secure much of value for the working class, and perhaps like alchemy it is bound to fail. Indeed, Arthurs points out a risk that the elegant theories will somehow end up legitimising a system of subordination and exploitation of ordinary people rather than providing a vision for the reconstitution of a market society with radically different foundations. Looking at the contemporary world, he fears that the success of radical libertarian and populist ideologies have led governments not only to seek to dismantle labour law as an instrument of social justice but also to abandon social justice as an aim of politics altogether. His advice is to parry these ideas with equally bold, broad, and deep principles such as human rights, liberty, democracy, and justice, but not to tie ourselves to one particular value as a lodestone. Willingly following that advice, the editors commissioned papers for a conference and ultimately this volume that sought to explore a wide range of principles, theories, themes, and values. The book is divided into four parts, each representing what seems to us to be a key set of values that need to underpin any labour law system. Part I engages with values that are particularly associated with liberal political theories, such as freedom, dignity of the individual, and the protection of human rights, and examines how they underpin labour laws. Part II considers how labour law addresses the task of securing distributive justice in society and of seeking to eliminate exploitation. Part III investigates how the workplace can and should become a site for democratic values and participatory government. Part IV asks how labour law can contribute to social inclusion for all groups in society, including women, without becoming an exclusionary force itself. This inaugural volume cannot, however, aspire to be comprehensive. What it claims, rather, is that it has identified and begun to explore four of the key fields of moral and political values in which labour law can make a significant contribution.

82  eg Langille.

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5.  Part I: Freedom, Dignity, and Human Rights The chapters in Part I of the book explore whether justifications for labour law might be found in liberal values. Values such as autonomy, dignity, human rights, and freedom from domination and alienation have been close subjects of study in political theory, where the focal relationship is that of citizens to the state and the objective is to identify and justify the desiderata of a just society. Earlier we discussed some of the hazards of transplantation, such as whether the theories of a just state vis-​à-​vis its citizens can be generalised to the more private or localised relationships of employers to employees. The opening chapters take on these and other questions in their rich and provoking contributions to this collection. The first of these chapters confronts the challenge of reconciling the apparent contradiction between the rejection of authoritarianism in the relation of citizen to state and the apparent toleration of parallel risks in the relation of employee to employer. John Gardner argues that as employment relations have shifted from status norms to a more contractarian ethos, the risks of worker alienation have increased. By contractualising roles and relationships, Gardner argues, the values intrinsic to vocations, such as the meaningfulness of one’s work, the satisfaction of putting one’s talent to good use, developing one’s potentialities, and the like, have been subordinated to the impulse towards getting one’s money’s worth. Work has become less about pride, he argues, and more about sacrifice; this, in turn, begets resentment on the part of the worker and loss of motivation. The worker’s loss of motivation further leads the employer to redouble its assertion of authority, and so on, in a self-​ reinforcing cycle towards the ultimate process of alienation of the worker. Hugh Collins similarly presses the question of why, if a political regime that suppresses core liberal values such as freedom, dignity, privacy, and equality would be seen as authoritarian and abusive, we should be untroubled by the autocratic features of the contract of employment. His answer: we should be troubled. Collins considers the tension between the institution of contract and several core liberal values: negative liberty (freedom from interference by the state), positive liberty (autonomy), non-​domination, and equal respect. He shows how the contract of employment undermines these values to greater and lesser degrees, but ultimately identifies as most directly fatal to liberal values in the workplace the inherently hierarchical structure of the contract of employment. Collins advances this claim through the clarifying analytic device of distinguishing between submission to the contract of employment and the subordination that is intrinsic to the relationship. Submission to contractual terms in a variety of contexts may do no harm from a liberal perspective; the trouble is that subordination—​the requirement of obedience to the employer’s will and the attendant assertion of hierarchy—​is a pervasive feature of the contract of employment and of necessity deprives the employee of the value of equal respect. Other chapters look to political theory to explore the purpose of labour law. There is a growing body of scholarship suggesting that law can advance human development, capacities, or capabilities. Capabilities might include health, education, reason, conscience, and the ability to work and act in the spirit of solidarity—​all resources that enable people to lead a life to which they attach value. These capabilities have intrinsic value, but they also can be instrumental in advancing human freedom. Can the goal of increasing capabilities provide a justification for labour law? Pablo Gilabert explores the requirements of human dignity, a concept commonly appearing in human rights instruments but which is often underspecified. He argues that protecting dignity involves ‘solidaristic empowerment’, whereby a good society does not block, and ideally facilitates, the development and exercise of critical human capacities. Labour rights, by Gilabert’s reckoning, are norms that advance

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the ideal of solidaristic empowerment in the workplace by supporting a range of basic interests linked to capacities, such as access to consumption goods, associational power, self-​ development, a feeling of contribution, self-​esteem, and so on. Brian Langille, who also takes a capabilities approach, stresses that it is not only what set of capabilities one has that matters, but also how one comes to have them. Collective bargaining, for example, facilitates a ‘process’ aspect of the freedoms and opportunities important to human development. But Langille’s focus is labour standards. His analysis of several recent leading court decisions from Canadian labour jurisprudence lauds approaches to statutory interpretation that seek to vindicate the remedial purpose of the statutes. This approach asks who is best situated to advance a statute’s purpose, rather than whether a duty was required by contract—​the latter framework being rife with problems of avoidance and exclusion. It is this more pragmatic and purposive jurisprudence, he argues, that can best remove obstacles to freedom and advance human development. The tradition of civic republicanism might similarly help provide a moral foundation for labour law. A common thread in civic republican accounts—​and one that gives them particular appeal for labour lawyers—​is the assertion that citizens are entitled to be free from domination. Some theorists see this as flowing from the value of liberty while others link it to conceptions of social justice. Despite its origins in efforts to establish criteria for the limits of state power in relation to citizens, David Cabrelli and Rebecca Zahn argue in their chapter, the appeal of non-​domination theory is its ready generalisability to relations in the private sphere, including the workplace. The types of labour regulation that might be justified by non-​domination theories could depend, however, on whether one’s theory is grounded in liberty values or social justice. Liberty-​based theories might justify procedural protections to enable collective action and worker participation in managerial decision-​making, while other forms of labour law—​for example, minimum wage, equal pay, and working time regulation—​can be understood as concerned with the minimisation of domination as a matter of social justice. A non-​domination framework, they argue, might free us from the limitations inherent in the construct of the ‘employment’ relation as a basis for regulation and justify extension of protections to independent contractors and other workers who fall outside the employment paradigm. Finally, Joe Atkinson illuminates both the allure and the limitations of looking to human rights to provide a normative justification for labour law. The challenge, in part, lies in the contestation among theorists of the very foundations and imperatives of human rights, with political approaches seeking to classify human rights as rights the violation of which justifies state intervention with a sovereign state, and more naturalistic accounts seeing human rights as protecting ‘personhood’, or the ability to choose one’s own conception of the good life. Moreover, even if one could resolve such conflicts, the fit between human rights and labour rights may prove quite imperfect. Human rights are seen as timeless, universally applicable norms of the highest moral order, while many labour rights are quite particularised and workaday in character. Atkinson ventures that while an unlikely candidate to serve as a general theory of labour law, human rights might at least offer an arrow within a more pluralistic quiver of normative foundations.

6.  Part II: Distributive Justice and Exploitation As said earlier, academic scholarship often refers to the inequality of bargaining power between the employer and the worker as the central issue that labour law seeks to address. Less frequently perhaps, scholars refer to employment as an institution that distributes wealth

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and power in modern societies.83 By intervening in the employment relation, then, we do not only seek to make workers and employers more equal; we also aim to promote a vision of social justice and fair distribution of resources both in the workplace and in society more broadly. Against this background, the second part of the book examines, first, the implications of theories of distributive justice for labour law. Distributive justice involves questions of how political, economic, and social institutions and laws should distribute burdens and benefits in society. Scholarly debates on distributive justice explore questions such as what is to be distributed (for instance, opportunities or material resources), on the basis of what principles there should be redistribution (for instance, different conceptions of equality or desert), and who should benefit from this redistribution (for instance, individuals or groups). A society’s laws have significant effects on the distribution of resources. Perhaps the area of law that most obviously deals with redistribution of resources is tax law.84 A state’s tax system addresses how resources should be redistributed in order to promote principles of distributive justice. Contract law rules can also serve to redistribute resources.85 In this volume, Guy Davidov considers the application of theories of distributive justice to labour law, and examines what interventions through labour legislation each of these theories support. He first outlines theories of distributive justice that are based on desert, namely on the responsibility of individuals as a basis for what treatment they should receive. On this view, each person’s contribution or effort should form the basis for the resources that they should receive. Luck egalitarianism, in turn, insists that people should not suffer consequences because of their bad luck, and argues that distributive justice should address such issues. The chapter also presents theories of redistribution as addressing inequality, according to which redistribution should eliminate existing disadvantage. It considers what is to be redistributed according to the relevant theories, and explores redistribution as instrumental to equality of status. Having reviewed these different approaches, the chapter considers what labour laws each theory justifies and requires, including legislation on anti-​discrimination, trade union and collective bargaining protection, unfair dismissal, and minimum wage. Moreover, the chapter examines the implications of employing these theories in order to address unjust distribution between different groups of workers. Like many contributors to this volume, Davidov takes a broad account of the scope of labour law, and considers individual and collective labour law, as well as anti-​discrimination law as parts of it. Noah D Zatz, on the other hand, presents and challenges the traditional accounts on the foundations of anti-​discrimination law and labour law, and examines the insights that we gain from this exercise. He explains how the traditional narrative of labour law focuses on inequality of bargaining power in the labour market, and the principle that ‘labour is not a commodity’ as a way to address this. Employment discrimination law, on the other hand, focuses on employers who, because of bias, do not treat workers as market actors, and aims to purify market dynamics. Zatz considers the bilateral employer/​employee relationship as the central focus of attention in both fields of law, and puts forward a more structural analysis. He suggests that the wrong that anti-​discrimination law addresses is the arbitrary distribution of opportunities for work and income. This move brings employment discrimination law closer to labour law. At the same time, it brings insights to labour law by

83  Hugh Collins, Employment Law (2nd edn, OUP 2010) 14. 84 See eg David G Duff, ‘Tax Policy and the Virtuous Sovereign’ in Monica Bandhari (ed), Philosophical Foundations of Tax Law (OUP 2017). See also Gillian Lester, ‘Can Joe the Plumber Support Redistribution? Law, Social Preferences, and Sustainable Policy Design’ (2011) 64 Tax Law Review 313. 85  Kronman (n 81).

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questioning its exclusive focus on market structures and highlighting relationships that are typically viewed as falling outside the labour market. When is workers’ treatment exploitative? It is to this question that the three chapters that follow turn. When considering exploitation, a natural starting point is the theory of Karl Marx. For Marx all workers are exploited in a capitalist system, because they do not have access to the means of production. On this account, they are exploited when they work more hours than it takes to make goods that they can buy with their earnings. This theory of exploitation does not examine distributive justice at a general, macro-​level, but is concerned instead with unfair distribution of resources within the employment relationship. Yet some of the crucial insights from Marx involve the role of structures in creating conditions of exploitation. Political philosophy has examined the concept of exploitation both by developing Marx’s account and by departing from it. Some philosophers examine interpersonal exploitation, disconnected from background structures, while others focus attention on structural conditions that make workers’ exploitation possible.86 The contributions to this volume give primary attention to structures of exploitation. Jonathan Wolff examines the concept’s structure and normative implications. He addresses the puzzle that often the only thing that is worse than being exploited is not being exploited: for many people, the alternative to having low wages and bad working conditions is having no wages at all. How then shall we determine if people are exploited if they are better off than they would be had they not been exploited? To determine this, we need to consider background norms. Wolff broadens the Marxist inquiry from the specifics of the structural problems of the employment relation, to the background structures that give rise to the particular exploitative relations. These broader structures, he argues, will have a key role to play in our attempt to understand if the particular relation is exploitative. Having explained that exploitation has two aspects—​first the treatment of the worker, and second the background structures that create vulnerability—​he suggests that it can be addressed in two ways. We can tackle exploitation either by regulating working conditions through offering a minimum wage and other such protections, or, more ambitiously, by changing the background structures that create vulnerability through, for example, educating groups of people who are in a position of vulnerability. On this latter issue of structural injustice, he emphasises that even when background structures are legitimate, this does not mean that there can be no limits to the powers that flow from them. In the chapter that follows, Virginia Mantouvalou continues this attention to the role of structures, but focuses on the role of the law in particular as an institution that creates special vulnerability to exploitation. She questions the current accounts of exploitation that we find in law and policy, which emphasise extreme violations of labour rights, pay special attention to interpersonal relations, and focus on criminalisation as a legal response. Building on Marxian insights, she examines structural accounts of vulnerability to exploitation, and considers particularly the role of the law in creating special vulnerability, which is exploited by violating workers’ rights or other human rights. Mantouvalou suggests that against this background, it is not only individual employers who have to be held accountable for exploitation, but also the state itself for its role in creating these unjust structures. She suggests that human rights law, with its focus on state conduct, can expose some forms of exploitation, and labour law can address the problem by incorporating rules that remove workers’ structural vulnerability, and protect them from oppressive subordination.

86  See literature on exploitation above (n 4).

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In the final chapter in this part, Horacio Spector sets out to define the meaning of the concept of fair compensation, which is implied in provisions such as Article 7 of the International Covenant on Economic, Social and Cultural Rights, by reference to the idea of exploitation. Article 7 of the Covenant provides, inter alia, that everyone has a right to fair and just working conditions, including fair wages that secure a decent living standard. To examine what is fair in this context, he discusses different accounts of exploitation, before putting forward a risk theory of exploitation grounded in contemporary economic theory. He suggests that labour exploitation is a structural feature of modern capitalism because of the allocation of risks in a market economy. In this context, he places attention on workers who, against a backdrop of unemployment, are risk-​averse for the reason that they risk significant losses in case of non-​transaction. Capitalists, on the other hand, have many ways in which they can spread the risk by investing in stocks or bonds, for instance. The workers’ inequality of power, understood in this way, leads them to accept wages that they would not accept if the risks were distributed equally. Capitalism gives the opportunity to exploit systematically workers’ aversion to risk. Spector suggests that the right to a fair wage should be understood as a right to address the risk imbalance that is inherent in capitalism. The same can be said about the role of labour law as a whole: it can be seen as a mechanism that addresses the imbalance of risks.

7.  Part III: Workplace Democracy and Self-​Determination The third theme of the book concerns the support given by labour law for democratic values. That support might be directed towards the workplace or towards national and international political activities. In the workplace, the values of democracy might explain and justify the need for representation of the workforce in key decision-​making bodies of the organisation. The workers should have a voice in influencing all the different decisions that might affect them from the obvious claims to be interested in wages and other terms of employment to the more remote strategic goals and ethical conduct of the business. Outside the immediate workplace, workers may contribute to the functioning of democratic government by their formation of political parties and other associations that represent the interests of workers or particular groups of workers. It is also possible to observe at the transnational and international level how federated trade unions, as associations of workers’ organisations, can join councils, committees, and other consultative mechanisms to help to set the agendas and guide the outcomes of their deliberations about international labour standards. In most countries, the principal mechanism through which workers represent their interests in the workplace is collective bargaining between their employer and a recognised trade union. There may also be works councils that provide a forum for discussion of a broad range of issues. Is collective bargaining or a works council a form of democratic representation? It is clear that these institutions differ from the political process in government that relies on candidates belonging to political parties standing for election for office and power. By seeking recognition for the purpose of collective bargaining, a trade union is not seeking to replace management but merely to compel it to reach decisions that respect and protect the interests of the workforce. Inside trade unions themselves, there is likely to be competition for office between different personalities and factions, though these rival groups are unlikely to share the organisational and membership qualities of political parties. When we speak of workplace democracy, therefore, we are not making an analogy with the political process but rather drawing on the underlying ideas of democratic government that include respect, equality, and self-​determination. The emphasis must be on the idea that individual

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workers should have a say in how their business is run and the objectives it pursues without taking over the governance of the organisation. Although this idea of workers having a voice and the possibility of participation in decision-​making seems a rather loose demand that might be easily satisfied by some kind of consultation mechanism in the workplace, many employers resist even this amount of worker participation. Claims for worker voice are seen as antithetical to the claims of management to govern the workplace. Management insists that its power to govern is conferred by the employer’s ownership of the means of production. Thus claims for voice at work must address the tension between the employer’s reliance on the entitlements of private ownership and the workers’ claim, based upon values of respect, equality, and self-​determination, to have a voice in the management of the business. Given the reluctance of most employers to concede voluntarily the need for employees to be able to express their views about the conduct of management, effective employee voice is likely to depend upon the power of workers to compel the employer to listen to their concerns. Labour law may be able to induce employers to sit and listen to representatives of the workforce in collective bargaining and works councils, but it is much harder for the law to compel a recalcitrant employer to listen and act upon the concerns of the workforce. In order to have an effective voice within the employing organisation, workers generally have to use their economic power as well as their legal rights. Their ultimate economic power is to take industrial action and refuse to work until the employer lists and accedes to some of their demands. Many employers take the further view that such strike action is itself morally wrong. Industrial action can be presented as interfering with the entitlements attached to private ownership of businesses or at least attempting to induce management to change direction. Trade unions are criticised by employers for interfering with their business and their contractual relations by inducing workers to go on strike. The common law accepted this point of view and decided that a union leader who led strike action was committing a tort. Legislation was needed to grant trade unions immunity from this tort. But is strike action morally wrong? Is there not a right to strike that competes with an employer’s entitlements based on property rights? Alan Bogg and Cynthia Estlund contribute to the collection by considering the moral basis and strength of the right to strike. Drawing on the perspective that labour law can be based on respect for human rights, they argue that the right to strike is a fundamental right resting upon three basic liberties: freedom from forced labour, freedom of association, and freedom of expression. In turn they explain that the importance of these civil liberties can be explained and justified by the republican ideas of freedom and contestatory citizenship.87 They then use those philosophical foundations to explore how the basic regulatory questions of a ‘right to strike’ have been addressed in Canada, the UK, and the US. Turning to the relation between workers’ organisations and politics in the government of the state, Martin O’Neill and Stuart White make the case for using associations like trade unions to help to insulate political structures against the influence of the wealthy. Associations of workers can act as conduits for information and lay the basis for political participation. They can also help to mobilise mass preferences in favour of social legislation that addresses such concerns as the precariousness of work and the need for benefits such as health care.88 Labour law can help to stabilise and protect such associations, but there is

87  Pettit (n 72).

88  Lester (n 22).

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clearly a role for the state to try to cement these alternative routes for political participation into the democratic processes.

8.  Part IV: Social Inclusion Our fourth theme examines the idea of social inclusion as a philosophical foundation for labour law and particular aspects of regulation of employment. This theme of social inclusion is part of the concern to identify how and in what ways distributive justice is an aim of labour law. It explores the ways in which labour law may be regarded as one of numerous institutions and legal measures in the modern state that aim to distribute power and wealth fairly. That task has already been addressed to some extent within the theme of exploitation, though not all conceptions of exploitation are concerned with distributive questions and some address rather different issues such as those concerned with human rights in exploitative relationships. The theme of social inclusion is primarily concerned with distributive issues, though it concerns not so much the distribution of wealth as the distribution of other valuable interests including the distribution of good jobs. It was earlier said that within political theory, distributive aims are often described by reference to various conceptions of equality. For instance, the distributive aim in a theory of justice might be described as equal treatment for everyone, or equal opportunities for all, or equality of initial resources, or equality of welfare or well-​being, or some other standard of equality. A more complex approach to distributive justice, though one still influenced by ideas of equality, is to permit some inequalities in wealth and power to exist in society, but only to the extent that these disparities function ultimately to the benefit of everyone. Rawls provides an example of that kind of flexible egalitarian principle in his proposed second principle of justice, which as well as requiring equality of opportunity, states that: social and economic inequalities should be arranged so that they are to the greatest benefit of the least advantaged.89 Such a principle of justice might prove interesting if it were used to assess the justice of arrangements within productive organisations. According to that ‘maximin’ principle, we might ask whether the disparities of power and income within an organisation accrue to the greatest advantage of the lowest paid workers at the bottom of the hierarchy of the organisation. Assuming that this principle could fairly be applied beyond the ‘basic structure’, it seems unlikely that many large organisations could meet that demanding principle of justice. In contrast to ideas of distributive justice based on different conceptions of equality, a recent strand in political theory puts forward the idea of social inclusion as a possible distributive aim for theories of justice. This idea is open to a number of interpretations, but it is reasonably clear that it does not use the scales of justice provided by some measure or conception of equality, because its objective is defined in terms of minimum standards rather than equal standards. Furthermore, the ambition of the idea of social inclusion seems to be broader, because it is not solely aimed at a fair distribution of power and wealth, but is also concerned with securing social order and acceptance of the legitimacy of government and the law. Great disparities of wealth and power tend to undermine social cohesion. If a society contains a substantial group of people who lack material necessities, who cannot obtain economic security or improve their lot in life, and who lack any effective political representation, it risks social disorder and even revolution. The aim of social inclusion to help 89  John Rawls, A Theory of Justice (OUP 1972).

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people feel more integrated into society and to feel that it is worth their while to uphold the institutions of their society including its government and laws. Measures to address social exclusion may include material support by the state, but in accordance with a goal of social inclusion governments are more likely to prioritise the creation of decent jobs open to all, the opportunity to participate in political institutions and government, and effective policies to enable everyone to be able to benefit from the educational and cultural dimensions of society. The aim of social inclusion prioritises those goals concerning work, education, and participation in social institutions, over narrower attempts to relieve poverty and to make people more materially equal. One way to present the aim of social inclusion is to present a list of minimum opportunities and outcomes that must be accessible to every person such as education to their full potential, decent work according to their capabilities, and real opportunities to have a voice in matters that affect them. Usually the first task for governments who are aiming to increase social inclusion is to try to make sure that everyone has a paid job. Having a job not only meets many material needs such as food and shelter, but it also integrates the worker into an organisation or a network through which the worker can establish social relationships, self-​esteem, and a sense of belonging to the group and society as a whole. The most obvious relevance to labour law of this goal of social inclusion is that it suggests that priority should be given to the distributive goal of getting everyone a paid job no matter what disadvantages they may suffer from. Not only do laws against discrimination match into that distributive goal, but also other legal measures such as family-​friendly provisions that permit parents and carers to arrange their working time around their other pressing responsibilities. The priority to be attached to this goal of maximising access to paid work by reason of maximising social inclusion is challenged, however, at least in part, by contributors to this volume. In her contribution to this volume, Joanne Conaghan questions the central importance attached to paid work in the thinking of labour lawyers. Adopting a critical historical perspective, she points out how the division between home and workplace arose during the industrial revolution. This division was used, she argues, to justify a patriarchal society with the subordination of women in the home where they performed unpaid work, whereas men were treated as free and equal participants in a labour market that offered paid work. Although paid work was thus a gendered construct, she welcomes to some extent the opening up of opportunities for women in recent decades, whilst recognising that caring responsibilities are for the most part still not shared equally between men and women, so there remains a powerful exclusionary effect for women. More fundamentally, however, she challenges the idea that paid work for everyone should be the measure of success in the policy of social inclusion on the ground that it is a historically constructed male norm. It is possible that economic developments such as teleworking may break down the separation between work and home, which in turn may facilitate a reintegration of work and social reproduction. As that discussion of paid work as a boundary of labour law’s protections illustrates, whilst a goal of labour law or at least some parts of labour law may include social inclusion, it is also true that labour law inevitably draws lines around the scope of application of employment rights. Laws that set minimum wages, maximum hours, and health and safety rules do not apply to every kind of work that is performed. In the gig economy, for instance, where people agree to perform particular tasks on a casual basis, the normal conditions for the application of employment rights may not be satisfied for various reasons, such as the absence of a contract with the putative employer. Alternatively, if there is a contract it may be the wrong kind of contract such as a contract for services, or the short duration of the engagement may exclude the application of relevant legislation, or some other condition

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for the entitlement may not be satisfied. Unfortunately, in most cases the workers who are excluded from many of the protections that workers in good jobs enjoy are precisely those workers who tend to be excluded in a more general sense from the opportunities provided by society. Einat Albin illustrates this point by reference to domestic workers. She is also critical of the narrowness of the goal of social inclusion. Using the example of sex workers, Albin argues that current definitions of the policy of social inclusion would emphasise the importance of making such work legitimate and paid and regulated according to the standards applicable to other kinds of jobs. She argues that such a conception of the goal of social inclusion overlooks the significance of the way in which sex workers are degraded by their work. She advocates therefore a broader conception of social inclusion that also prioritises humanitarian concerns. Another group who are typically excluded from labour law because they do not perform paid work are volunteer workers. In most legal systems, the absence of payment will have the legal consequence that they are excluded from employment protective rules such as the minimum wage and also legal rights to become a member of a trade union and to organise and bargain collectively. As Sabine Tsuruda points out in her contribution to this volume, volunteers may nevertheless perform exactly the same range of tasks as regular paid employees and suffer from many of the problems that employees suffer in the workplace such as discrimination, harassment, abusive treatment by managers, and risks to health and safety. Tsuruda accepts that it is appropriate to exclude some volunteer work from employment protections, but only when that volunteering satisfies a condition that she describes as ‘merit inclusivity’, which means that it provides opportunities not available in the labour market for people to use their skills and abilities. For instance, interns working in many organisations as volunteers are functioning as free substitutes for paid labour, rather than being granted the opportunity to develop their skills and capabilities, in which case they should be entitled to the minimum wage because their work does not satisfy the criterion of ‘merit inclusivity’. In the final contribution to this book, Mark Freedland tackles the question of how ideas of social inclusion can address the complex issues faced by migrant workers, who may be excluded by either employment law rules or immigration law rules or a complex interaction of both sets of rules.90 Freedland argues that the policy of social inclusion applied as a goal for labour law can be expressed as including within its scope all personal work relations that merit worker-​protective regulation and assigning classifications of different kinds of work relations that uphold worker-​protective regulation in a proportionate way. He recognises the many different types of challenges presented to this aim by current kinds of precarious work relationships, not least zero-​hours contracts and sham self-​employment. Immigration law also tends to function to exclude workers, though in a way that can be justified by reference to a particular interpretation of the aim of social inclusion that treats its citizens as those who must be included, not others. This ‘us’ and ‘them’ mentality of populist immigration law,91 however, seems ultimately to run counter to the aim of other possible understandings of the goal of social inclusion, which might be linked more closely to the appeals to social solidarity that lay at the foundation of the Declaration of Philadelphia in 1944.92

90  See further Cathryn Costello and Mark Freedland (eds), Migrants at Work (OUP 2014). 91  Bridget Anderson, Us and Them?—​The Dangerous Politics of Immigration Control (OUP 2013). 92  Alain Supiot, The Spirit of Philadelphia—​Social Justice vs. the Total Market (Verso 2012).

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9. Conclusion This brief introduction has mainly focused on some of the challenges that the contributors to this volume have faced in exploring the relatively uncharted terrain of the philosophical foundations of labour law. We have explained how we hope that careful reflection about underlying moral and political principles and values can serve to provide firmer foundations and a clearer sense of direction for labour law. At a time when many appear to doubt the value of labour laws and workers’ rights at all, we believe it is necessary to reassert that the values and principles that provide the foundations for a system of labour law are not those of a narrow special interest group, but rather embrace interpretations of key values such as freedom, autonomy, dignity, equal respect, democracy, and social justice. Exploitative labour conditions are simply incompatible with key values that most of us share. But more fundamentally, many of the contributions explain how even the basic building blocks of the division of labour, such as contracts of employment, must be engineered and regulated so that they do not interfere with those key values in a disproportionate way. We hope that readers of this volume will agree that labour law does need philosophical foundations and that elements of those foundations have been uncovered by the contributors.

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2 The Contractualisation of Labour Law John Gardner 1.  The ‘Contractual Foundation’ As long ago as 1967, Otto Kahn-​Freund was able to write: The labour law of Great Britain . . . is based on the contractual foundation of the obligation to work and of the obligation to pay wages.1

At the time, notice, the field was still known as ‘labour law’ rather than ‘employment law’. It was only twenty-​five years later that the new name started to take hold. The old name, which some of us still insist on using, reflected the old order in which the field was in fact two fields, standing in precarious equilibrium. One subject was the individual legal rights of workers; the other was the legal treatment of their collective bargaining activities, largely conducted through trades unions. An interesting feature of this old order, at the time of Kahn-​Freund’s writing and for perhaps another twenty years beyond, was that the second field of law had greater social importance but was characterised by very little legal intervention. For this was the heyday of the policy that Kahn-​Freund called ‘collective laissez-​faire’, in which the law’s main contribution to collective bargaining was to stay out of it.2 As Kelsenians will tell you, the law is never strictly speaking ‘out of ’ anything.3 There is a legal position on everything, even if it is frequently an indeterminate one (for example, φing is neither lawful nor unlawful).4 Where collective bargaining activities were concerned, the law in 1967 was not characterised by any unusual indeterminacies, but it was characterised by strikingly wholesale abstention. The law’s main technique was the grant of sweeping immunities from private law liability to trade unions and others acting as collective bargainers for workforces. Americans hearing this may think first of immunity from liability for breach of contract. But in the British tradition, unlike the American, collective agreements are not normally legally binding contracts. It is presumed in law that they are not intended to create legal relations. In that respect they are like agreements by which friends plan to meet for lunch or parents set up a school collection rota for their children.5 There is no need for any immunity from legal liability for breach of a contract that is not legally 1  Otto Kahn-​Freund, ‘A Note on Status and Contract in British Labour Law’ (1967) 30 Modern Law Review 635, 635. 2  Otto Kahn-​Freund, ‘Labour Law’ in Morris Ginsberg (ed), Law and Opinion in England in the 20th Century (Stevens & Sons 1959) 215, 224. 3  Hans Kelsen, General Theory of Law and State (Harvard University Press 1945) 147. 4  Kelsen himself did not allow for the possibility of an indeterminate legal position. The possibility is explained by Joseph Raz in ‘Legal Reasons, Sources, and Gaps’ in Raz, The Authority of Law (Clarendon Press 1979) 70ff. 5  Ford Motor Co Ltd v AEF [1969] 2 QB 303 (QB), confirming what Folke Schmidt and Alan Neal call the ‘prevailing view’:  Schmidt and Neal, ‘Collective Agreements and Collective Bargaining’ in Bob Hepple (ed), International Encyclopaedia of Comparative Law, Vol XV: Labour Law (Mohr Siebeck 1979). After a brief statutory dalliance with the opposite position in the ill-​fated Industrial Relations Act 1971, the Ford rule was put on a statutory footing in the Trade Union and Labour Relations Act 1974, in the form now found in the Trade Union and Labour Relations (Consolidation) Act 1992, s 179. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 2 © John Gardner 2018. Published 2018 by Oxford University Press.

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binding. So the main legal immunities associated with the policy of collective laissez-​faire were always immunities from liability in tort, perhaps most importantly from liability for so-​called ‘economic torts’ such as inducing breach of contract and interfering with contractual relations. The contractual relations in question were the contractual relations between individual workers and those whom they worked for. Here we can already see one thing that Kahn-​Freund may be getting at when he says that, even in 1967, our whole labour law has a ‘contractual foundation’. The ‘collective bargaining’ part of labour law does not for the most part have any legal bearing (although it may of course have extensive causal influence) on the terms of the contract between individual workers and those they work for, nor on liability for breach of that contract. Yet the ‘collective bargaining’ part of labour law does presuppose the existence of such a contract, and it regulates (by immunising against) some derivative forms of legal liability that certain others may face in respect of the (actual or potential) breach of it. You might think that the passage of time, and in particular the shift marked by the rebranding of ‘labour law’ as ‘employment law’, would lend heightened significance to Kahn-​ Freund’s 1967 remark. The 1980s saw a rapid narrowing of the immunities associated with the policy of collective laissez-​faire, hence a rapid reduction in the scope of the policy.6 It also saw, not coincidentally, a rapid legally facilitated erosion of the social importance of collective bargaining and trade unions. A growing emphasis on the legal rights of individual workers, some of which might have been regarded as a complement and even a tribute to trade union power in the 1970s, came to pose a direct threat to such power in the 1980s. In that decade, individual workers acquired ever-​wider rights not to be discriminated against, including not to be denied work, on ground of their non-​membership of a trade union. The ‘closed shop’ was on its way out. The securely unionised workforce with collectively negotiated conditions of work, enforced against the bosses mainly by the threat of industrial action, was destined to become a workforce managed principally through individual contracts of employment, with union membership sold to individual workers somewhat on the model of an insurance policy, ie on the promise of help in upholding individual legal rights. Was more of labour law, in this way, assimilated to the law of contract, and in that stronger sense placed on ‘a contractual foundation’? Actually, not so much. An intriguing feature of the rise of statutory rights for individual workers from the 1970s onwards was that, unlike the statutory rights for individual consumers that mushroomed in the UK over the same period, they were not automatically incorporated, as implied terms, into anyone’s contracts. They presupposed the existence of contracts, often contracts of employment but sometimes, more generously, contracts to carry out ‘work’. Yet violation of the rights was not to be classified, in law, as a breach of contract. So, for example, ‘unfair dismissal’ (the statutory cause of action inaugurated in 1971)7 has never been assimilated to ‘wrongful dismissal’ (the common law cause of action for repudiatory breach by an employer of an employment contract). This extra-​contractual model, rolled out more widely, has allowed the assertion and enforcement of the statutory rights of individual workers to be hived off from the regular court system into specialised tribunals. Such tribunals certainly do deal with questions of contract law, for they must often establish whether the applicant before them is or was an employee, and that, as we will have cause to emphasise shortly, is a contract law question. But the tribunal’s task of upholding the rights that depend on the applicant’s 6  For fuller explanation of this and the other developments outlined in this paragraph, see Paul Davies and Mark Freedland, Labour Legislation and Public Policy: A Contemporary History (Clarendon Press 1993) chs 8 and 9. 7  See now the Employment Rights Act 1996, Part X, which has grown a long way from its roots in the Industrial Relations Act 1971, s 24.

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having such a contract are not, in law, part of the task of upholding the contract itself. So the ‘contractual foundation’ of labour law remained, through all this upheaval, principally a contractual presupposition. And yet there is some sense, in seems to me, in which labour law has become more contractualised—​if you will forgive the ugly term—​since Kahn-​Freund wrote in 1967 of its ‘contractual foundation’. In this chapter I  aim to explore this sense. Labour law’s contractualisation, in the relevant sense, turns out to be but one symptom of a wider contractualisation of relationships. But labour law, it also turns out, provides a particularly good test bed for thinking about the more general process that I have in mind, and its far-​reaching consequences. It is not strictly speaking a legal process. It is a process of social change that the law helps to propel, in spite of itself. I add ‘in spite of itself ’ because the law puts up some localised resistance. It does not take the process of contractualisation completely lying down. Yet it is ill-​equipped to resist. For the law’s doctrines in this neighbourhood are out of step with its ideology, and there is a resulting lack of conviction in how the doctrines are supported and maintained. Having been left behind by wider and deeper changes, the doctrines in question have become orphaned, neglected, isolated, and frail. The ideology of the law connives in contractualisation, and the law itself can offer only feeble and futile defences against it. Here is a sketch-​map of what follows. In Section 2 I explain what I take contractualisation to be, not yet focusing attention on the specific context of labour law. I  emphasise that a contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Only in Section 3 does our attention shift to the distinctive subject matter of labour law, and in particular to the employment relationship. I resist the thesis that the employment relationship is fundamentally a contractual relationship, and the thesis that all the norms of the employment relationship can be captured adequately in a contract. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends social acceptability to the depressing idea that work is there to pay for the life of the worker without being part of that life. Throughout there are intimations of the conclusion drawn in Section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-​realisation, should resist. Or rather, should have resisted. For the mood of the whole discussion is pessimistic. The process of contractualisation has probably passed the point at which it could have been inhibited by any policies designed to inhibit it.

2.  Contractualisation as a Social Process Contracting is one way of incurring voluntary obligations. These are obligations that one has for the ‘content-​independent’ reason that one entered into them, and not for the ‘content-​dependent’ reason that they are good obligations for one to have quite apart from one’s having entered into them.8 Theoretical writings on the law of contract often seek to show that contracting involves, or even reduces to, some other way of incurring voluntary obligations, such as promising, agreeing, or consenting.9 The assumption seems to be that 8 The distinction is owed to HLA Hart, ‘Commands and Authoritative Legal Reasons’ in Hart, Essays on Bentham: Jurisprudence and Political Philosophy (Clarendon Press 1982) 243, 254. 9  As in Charles Fried, Contract as Promise (Harvard University Press 1981); Randy Barnett, ‘A Consent Theory of Contract’ (1986) 86 Columbia Law Review 269; or Lawrence Solan, ‘Contract as Agreement’ (2007) 83 Notre Dame Law Review 353, among many other examples.

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contracting is a way of incurring voluntary obligations that is specific to the law, and that any attempt to show the moral appeal of the law must therefore begin by looking for some extra-​legal counterpart, some other way of incurring voluntary obligations of which the legal way is an adaptation. That is an odd assumption. The extra-​legal counterpart of contracting is surely contracting. In contracting, one may or may not promise anything. One may or may not reach an agreement. One may or may not consent to something. All that is required, as the law registers, is that one accepts an offer from another and gives, or promises, something in return.10 That is how each—​offeror and acceptor—​incurs a contractual obligation. That obligation is not always recognised by law. As we already know from the case of collective agreements in labour law, the law is selective in giving legal effect to contracts. For collective agreements are typically contracts as well as agreements. Typically they are not, however, legally binding on either of the parties to them. The legal bindingness of a contract is an optional extra, not entailed by its being a contract. Another way to make the same point is to say that contractual norms are not legal norms. They are merely legally recognised norms.11 They have their source in the contract, not in the law. That is not a historical claim. It is not about where the concept of a contract originated. Perhaps it originated in some legal system. Clearly the law of contract helps to shape how we think about contracts outside the law. Yet equally clearly we do think about contracts outside the law. Contract has become a concept in ordinary, everyday use. According to that concept, contractual norms are norms created by the parties to the contract, whether intentionally or accidentally, and whether agreed or consented to or otherwise. The law merely adds legal effect to some of them. Or at any rate, the law attempts or claims to do so. It may distort them in the process, misrepresenting in law the content or the force that they have apart from the law. Sometimes, indeed, the law may actually change the norms of the contract, so that the content or force that they would have had apart from the law is no longer the content or force that they have, even for extra-​legal purposes. Still this should be regarded as a feedback effect that the law has on what are, fundamentally, contractual norms. For even as it changes them in the process, the law holds itself out as merely giving legal effect to contractual norms, and those are the norms that, in the process, it changes. Does this picture of contractual norms as existing apart from their legal effect mean that we should think of them as social norms instead? No. Their social effect, like their legal effect, is supplementary. In some times and some places, there is support for contracting in public culture. Contractual norms have customary effect, are upheld by social pressure, are widely held to be morally binding, and so on. But there need not be any such social support for there to be contracts.12 The social process of contractualisation, as I will call it, is the process by which contractual norms come, not only to be socially supported, but to enjoy a unique pre-​eminence among those that enjoy social support. What kind of pre-​ eminence? This kind: whenever the norms of certain roles and relationships can be understood as having their source in a contract, they are so understood. They are reinterpreted as contractual norms, existing for content-​independent reasons. When it takes hold in public culture, the myth of the ‘social contract’ is an extreme example of such a reinterpretation. The obligations (and other norms) of all or most other social roles and relationships are reinterpreted as having their source in a contract, such that the idea that they are good norms

10  Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 (CA), the seminal case of contract without agreement. 11  Joseph Raz, Practical Reasons and Norms (Hutchinson 1975) 153. 12  See Thomas Scanlon, ‘Promises and Practices’ (1990) 19 Philosophy & Public Affairs 199, building on the debate between Neil MacCormick and Joseph Raz published as ‘Voluntary Obligations and Normative Powers’ (1972) 46 Proceedings of the Aristotelian Society Supplementary 59.

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for people to be bound by is bypassed in favour of the idea that they were, at some time and place, created by the actions of those who are bound by them (namely, the actions of accepting offers, and giving or promising something in return). Less ambitious, but more pernicious, is the creeping contractualisation of particular roles and relationships that we see around us today. Police officers, social workers, architects, and solicitors typically carry out their professional work under a contract, whether it be a contract with an authority, a firm, or a client. The contract typically includes terms that indicate which professional role the incumbent is supposed to be occupying. The professional role may well be named in the contract. The contract may purport to replicate, or incorporate by reference, some or all of the associated professional obligations. However, the professional obligations of police officers, social workers, architects, and solicitors are not contractual obligations. They do not have their source in this or any other contract. The contract may get some or all of the professional obligations wrong, and may even impose conflicting obligations. Then the incumbent may one day face a dilemma:  perform my contractual obligation or perform my professional obligation? In extreme cases the contract may get the whole idea of an architect or a solicitor (etc) wrong, by garbling the associated obligations. Then the incumbent is not after all under a contract to be an architect or solicitor. The contract may say that he is to serve as an ‘architect’ or a ‘solicitor’ but calling him one doesn’t make him one. Such roles have their own normative structure and no amount of contracting can change it. ‘I am a police officer but I owe no obligation to uphold the law’ is not a dystopian nightmare but an oxymoron. If you owe no obligation to uphold the law you are not a police officer, whatever your contract may say. If you nevertheless hold yourself out as a police officer, you are, whether you know it or not, an imposter.13 When the obligations (and other normative incidents) of a role are regarded as having their source in the contract under which the role is filled, the role has been contractualised. Contractualisation of all roles is an unintelligible goal. One cannot contractualise the role of a contractor. That role too has its own normative structure, including an obligation to perform and a power to vary by common consent and a power to terminate unilaterally upon fundamental breach and so forth. ‘This contract imposes no obligation to perform it’ is another oxymoron, and not because the law says so. Pacta sunt servanda is a conceptual truth that no pactum, and no legal system, can countermand. The Holmesian view14 that, at common law, there is no legal obligation to perform a binding contract, but only a legal obligation to either perform it or pay damages, makes no sense as it stands. All that can really be meant is that the legal obligation to perform a legally binding contract includes an option as to the mode of performance. At the option of the performer, performance may either be by way of specific performance or by way of monetary substitute. You may think, as I do, that this view wildly misrepresents the common law. But at least it does not misconceive the very nature of a contract. There is much to be debated, of course, about the nature of a contract. For now the main thing to understand is simply that a contract has a nature. A contract cannot settle whether it is a contract or what its being a contract entails. Hence the role of contractor is not itself intelligibly subject to contractualisation. So contractualisation of all roles, to repeat, is an unintelligible goal. Yet contractualisation of all roles except that of contractor is not only an intelligible goal. It is a popular and prestigious one in contemporary public culture.15 The 13  For more on police officers (and on imposters), see my ‘Criminals in Uniform’ in RA Duff et al (eds), The Constitution of Criminal Law (OUP 2012). 14  Oliver Wendell Holmes, The Common Law (Little, Brown 1881) 300–​1. 15  See, among many critical treatments, Mark Freedland, ‘Status and Contract in the Law of Public Employment’ (1991) 20 Industrial Law Journal 72; John Dewar, ‘Family Law and its Discontents’ (2000) 14 International Journal

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remarks I just made about professional roles, such as that of architect, make it easy to see how it can gain traction. Apart from the question ‘what are my obligations as an architect?’, there is also the question ‘to whom do I owe these obligations, where this project is concerned?’ The answer is that my obligations as an architect, or most of them, are owed to my client or my firm. And the follow-​up question ‘who is my client, or which is my firm?’ is, as I said before, usually answered by a contract. Thus there is usually a contractual condition for my professional obligations to become what Mill called ‘perfect’ obligations, ie to acquire a particular beneficiary, also known as a rightholder.16 It is easy to slip into thinking that obligations that are perfected in this way by contract are also contractual obligations, ie that they are whatever obligations the contract may say they are, existing for the content-​ independent reason that they were taken on, not for the content-​dependent reason that they are the right obligations to have. By this route the freedom to practise as an architect is all too easily assimilated to the freedom to enter into a contract to provide services to another. Yet once this assimilation is total, once we reach maximal contractualisation, one has surely lost the freedom to practise as an architect. For the norms of that role have lost their distinct existence, meaning their existence apart from the norms of the contract by which they are to be provided to particular clients. The so-​called ‘architect’ now has whatever obligations the contract may give her, and that means that, strictly speaking, she is not an architect any more. She can no longer be one. She is just another contractor. For ‘architectural services’ is now just a name for some boilerplate that we may handily replicate, or incorporate by reference, in certain contracts we make for work on building projects. Like anything else that can be replicated or incorporated, it can be selectively replicated or incorporated. At this point, I am only as much of an ‘architect’ as my contract makes me, for my contract is the source of all my obligations in respect of the service I provide.

3.  The Contractualisation of Employment One can see in these remarks how easily freedom of contract can become an enemy of all other freedom. It can eliminate valuable options such as those of being an architect, or a therapist, or a hairdresser, or a teacher, or a foster carer, or a flatmate, or even a spouse, and leave one with only the single option, for what it’s worth, of being a contractor. The foregoing list indicates that my points in the previous section were not restricted to the erosion of professions, or even of occupations. They could extend to any role. The roles that I am most concerned with here are those of employer and employee. These are relational roles and they form a matching pair. One cannot be an employee without an employer, and one cannot be an employer without at least one employee. There is some evidence that the employee–​employer relationship, with its paired constituent roles, is currently in social decline, and that the threat to its social prestige is principally a threat from, and of, contractualisation. This may sound odd. Surely, if Kahn-​Freund is right, the employee–​employer relationship is necessarily a contractual one, and so there can be no question of its currently being

of Law, Policy and the Family 59; Daniel Markovits, ‘Sharing Ex Ante and Sharing Ex Post: The Non-​Contractual Basis of Fiduciary Relations’ in Andrew Gold and Paul Miller (eds), Philosophical Foundations of Fiduciary Law (OUP 2014). These all focus on legal shifts; the associated social shifts are not hard to see. 16  As George Rainbolt says, ‘The perfect/​imperfect distinction has been drawn at least eight different ways.’ Rainbolt, ‘Perfect and Imperfect Obligations’ (2000) 98 Philosophical Studies 233, 233. The way I draw it here comes from John Stuart Mill, Utilitarianism (Roger Crisp ed, OUP 1998) 94.

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under threat of contractualisation. Kahn-​Freund’s remark, however, was about the way in which the employment relationship is recognised in UK law. Like contract, employment is a concept in everyday use, although not always going by that name. Once it was called ‘being in service’ or ‘being a servant’ (hence the law’s old nomenclature, ‘contract of service’) and it was contrasted with ‘being in trade’. Today it often goes by the name of ‘having a job’ or ‘being on the staff ’ or ‘being on the payroll’ and is contrasted with being ‘a contractor’ or ‘a supplier’. These various contemporary descriptions are less redolent of social class, less ‘upstairs–​downstairs’, than their predecessors. This already marks an important ideological shift. You might say it marks the first step in a homogenising process of which the contractualisation of all paid work is but the culmination. In the first stage, professionals and office-​holders, once regarded as falling outside the service/​trade contrast reserved for the working and lower middle classes, were gradually absorbed into it. Never mind whether you’re a priest or a police officer or a parliamentarian or a plumber. Are you employed or self-​employed? Those are the only two tick boxes left on the form for those who obtain an income from their work. No doubt the law helped to make these two tick boxes, and the contrast between them, as socially and economically important as they became over the past two centuries. No doubt the law helped, in the process, to add some extra determinacy to the distinction as it now figures in social and economic life. We will come back to both of these points. The important point for now is that whether one is employed or self-​employed is not a technical question of concern only to lawyers. Quite the opposite: it is, and is widely treated as, a question of the utmost social and economic importance for all involved. I am using the present tense. How is it possible that the distinction between an employee and (what I will call) a ‘mere contractor’ remains so socially and economically important if, as I also claim, we now face the spectre of the contractualisation of all paid work? What I mean by the contractualisation of all paid work is the gradual migration of people’s working lives out of the model of the employee and into the model of the mere contractor. Where once we would have found people with jobs, we might well now find people with ‘gigs’, undertaking work assignments without any standing relationship with the person for whom the work is performed, or if in a standing relationship then in one that is not characterised by any commitment to its continuation (by the offering or the accepting of any further work assignments).17 This does not mark any loss in importance of the distinction between being an employee and being a mere contractor (although that too may well come to pass). It simply marks a growth in uptake or availability of what lies on one side of the distinction, and a corresponding decline in uptake or availability of what lies on the other. In a way it is testament to the social importance of the distinction that this social change revolves almost entirely around it. The main engine of this social change is surely technological. The cheaper and faster (some people tendentiously say ‘freer’) movement of people, capital, and especially information has reduced the advantages of a committed relationship between the provider and the performer of many kinds of work. The list of kinds of work to which this observation applies is growing all the time. Anyone witnessing the recent resurgence of Canute-​like economic nationalism in politics (Trump, Brexit, etc), and understanding its causes, knows this much all too well. Yet as a labour lawyer one can hardly ignore the similarly Canute-​ like propensities of the law. In the UK, as in many other countries, there is a large and 17  For a recent overview of the trends, see Matthew Taylor, Good Work: The Taylor Review of Modern Working Practices (UK Department for Business, Energy, and Industrial Strategy 2017). Some more detailed comparative data can be found in Ursula Huws, Neil Spencer, and Simon Joyce, Crowd Work in Europe: Preliminary Results from a Survey in the UK, Sweden, Germany, Austria and the Netherlands (Foundation for European Progressive Studies 2016).

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long-​standing policy investment in employment as a standard model for the assignment of paid work, and the law has therefore been much called upon to maintain and police the distinction between employment and mere contracting. The tax system relies heavily on both the distinction (for the calculation of tax liabilities) and the model (for tax collection). The incurring of vicarious liability for torts, and hence the assignment of de facto (and sometimes de jure) responsibility to insure, turns on the same distinction. One notorious effect of attaching so many potentially off-​putting legal consequences to employment relationships has been to incentivise on both sides, but especially on the side of the employer, the lawful avoidance and the unlawful evasion of employment relationships in favour of relationships of (actual or pretended) mere contracting. Meanwhile, the law’s attempts to shore up the ‘commitment to continuity’ aspect of the employment relationship (for example, by providing for redundancy payments and by conferring rights against unfair dismissal) may have made matters worse in the long run. They may have helped to protect those already in employment at the price of creating yet further disincentives for would-​be employers to stick with the employment model in meeting their future workforce needs. Those who fondly remember the union movement with its closed shops and muscular techniques of enforcement may be tempted to say ‘we told you so’. I am sympathetic to this sense that the working population was sold down the river by the alluring promise of individual legal rights at work. But it is not clear how much difference the shift from collective laissez-​faire to individual legal rights has made to the pace of contractualisation. Quite possibly the causal connection runs entirely in the opposite direction: the pace of contractualisation is what lies behind the decline of collective laissez-​faire and the rise of what might be seen, with the benefit of hindsight, as futile resistance in the form of an ever-​growing stack of individual legal rights at work. The foregoing paragraphs are rife with empirical claims and suppositions which it lies beyond my expertise, and beyond the objectives of this volume, to defend. I do not offer to defend them. I offer only to make sense of them. You may regard them as hypotheses if you like, and you may regard this chapter as an attempt to explore how they are interrelated conceptually, proceeding on the supposition that they are true. The most conspicuous conceptual move I made, from the labour lawyer’s point of view, was to associate the employment relationship with a commitment to its continuation. You may suspect that this move is question-​begging, given that I also represented employment protection rights, of the kind now common in UK law, as optional extras. But the question of how easily a relationship may be brought to an end by the parties to it is not the same as the question of whether being in the relationship entails commitment to its continuation. The first question arises only once we have an answer to the second. If entering a relationship is not committing to its continuation, we do not need norms governing how it is to be brought to an end. Rules for divorce are needed only because getting married entails committing oneself to a married future together. Much the same is true of employment. So to constitute a relationship of employment, as Mark Freedland says, the ‘service and pay’ relationship identified by Kahn-​Freund (in the 1967 remark that I quoted at the outset) is not enough. There must also be ‘mutual obligations of the parties to maintain the . . . relationship’.18 That is the law in the UK, and it is also the position apart from the law. As Freedland points out, it leaves open what counts as maintaining the relationship. To work that out, we would have to know what the other essential ingredients of the employment relationship are apart from commitment to its continuation. Does it entail, for example, keeping the

18  Mark Freedland, The Contract of Employment (Clarendon Press 1976) 23.

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employee supplied with work as well as with remuneration? That is a question to which we will return. Our interest right now is in the idea that employment is a continuing commitment, whatever else it may be. That idea may bring to mind Ian MacNeil’s famous plea for a paradigm shift in the law of contract more generally. He writes: The structure of the principles of general contract law, instead of reflecting material relations as they really exist, is based entirely on the nonexistent discrete transaction. Other forms of reciprocity, dominant in the real world, have been eliminated. And solidarity has been reduced to narrow legal remedies.19 [In] the abstract world of the law of contract . . . [t]‌he This for That of atomistic, unrelated humans, nonexistent in the real world, has become the lens through which such relations are observed. . . . Upon the sands of this abstraction all the other elements of contract law are founded or pretended to be founded.20

MacNeil regards the law of contract as a suitable place, in principle, for the legal recognition of various ‘real world’ relationships. But he finds the currently extant law of contract ill-​adapted to providing such recognition because it tries to remodel each such relationship as an isolated transaction, or as a series of such transactions. Such ‘neoclassical contract law’ not only fails to do justice to ‘particular types of contractual relations’, such as that between employer and employee. In the process it fails to do justice to ‘contractual relations’ of any kind.21 Here is a rival analysis, which strikes me as an improvement. The problem is not that the extant law of contract regards us as ‘unrelated humans’ but that it regards us as merely contractually related humans. So the problem is not that the law of contract fails to do justice to contractual relations. The problem, rather, is that it does justice only to contractual relations. It fails to do justice to other relations, such as that between employer and employee, because it insists, reductively, that they are but types of contractual relations. Being the law of contract, it recognises only their contractual concomitants. There may well be such concomitants. A contractual relationship may be used to bring another relationship into existence, to crystallise or foreground some features of it, or to provide for a possible future in which it starts to break down. But notice that the contractual relationship here exists to facilitate or enable another relationship between the same parties. And while the contractual relationship may help in various ways with that other relationship, it may also get in the way. For both relationships are equally in the ‘real world’ and their normative structures threaten to compete, just as the obligations of priesthood threaten to compete with the obligations of a contract to provide, say, sacramental services. A contractual relationship can offer at best what MacNeil calls an ‘incomplete and distorted reflection’ of a relationship that itself is not contractual.22 That is not a contingent limitation borne of the extant law of contract. It is a limit on the suitability of contract law, even in principle, even with as many implied terms and vitiating factors as you like, and even with as much statutory protection for weak bargainers as the law can add, to do all the work that is being asked of it. Especially what is effectively being asked of it by MacNeil, namely that it be non-​contractual. Like the professional obligations that we discussed in Section 2, the mutual obligations of employer and employee, the ones that are essential to the employment relationship, are non-​contractual. A  contract (or some other relationship-​initiating process) is of course needed to perfect them in the Kantian sense identified earlier, ie to settle which employer

19  Ian MacNeil, The Relational Theory of Contract (Sweet & Maxwell 2001) 126. 21  ibid 292. 22  ibid 301.

20  ibid  300–​1.

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owes his or her obligations to which employees, and vice versa. But it does not follow, and it is not true, that all the obligations thus perfected have their source in the contract. The contract may attempt or purport to capture the normative structure of the employment relationship; but the contractual relationship cannot actually be the employment relationship. That the two are distinct is implicit in Crompton J’s 1853 remarks: Whenever there is a contract for . . . employment . . . for a specified time, there is an engagement on the part of the employer to keep the employed in the relation in question during that time and not merely to pay him the wages for the services at the end.23

The ‘relation in question’ here must surely be the relationship of employer and employee. Notice that, for Crompton J, the contract is ‘for’ that relationship, and not, as lawyers now tend to say, ‘of ’ it. Contrast the more reductive-​to-​contract language of the Employment Rights Act 1996: In this Act ‘employee’ means an individual who has entered into or works under . . . a contract of employment.24

Here being an employee does not merely depend on having a contract of employment. It means having a contract of employment, no more and no less. The employment relationship is treated as identical to the contractual one by which it is brought into being. So over the years, as Freedland observes, a ‘central unifying proposition or implicit assumption’ of labour law, even of the statutory law protecting individual employment rights, has come to be that ‘the personal employment relationship can and should be understood in legal terms as a particular contract type, namely the contract of employment’.25 One implication is that, if an employment relationship exists in law, it must reside in the terms of the contract between employer and employee. This proposition introduces extra latitude for evasion of employment’s legal incidents. Quite apart from the possibility that the documentation of a contract misrepresents the true terms of the contract, there is the possibility that the true terms of a contract themselves misrepresent the true norms of the non-​contractual relationship that the contract exists to establish or maintain or otherwise assist with. By locating the employment relationship in the contractual relationship, the law blocks the claim that there is any non-​contractual employment relationship that the contract could be misrepresenting. In law, there is no such relationship. The law is not oblivious, of course, to the costs of blocking this claim. It soon reasserts some non-​negotiable aspects of the employment relationship by adding various implied terms to employment contracts, and attaching various statutory rights and obligations to them. These moves are often calculated, as we already noted, to capture and fortify the commitment to continuity that characterises the (non-​contractual) employment relationship, and to keep that relationship distinct, socially as well as legally, from that of mere contractor. But this policy of holding out against the contractualisation of the employment relationship comes too late. For, by the time the policy is being implemented, the ideological game is already up. The employment relationship has already been relocated inside the contract, and the argument that it exists apart from the contract is lost. The law has licensed the very same ‘incomplete and distorted’ understanding of the employment relationship, the reductive and destructive effect of which it now vainly seeks to contain by its implied terms and so forth. How can the law stop the employee from being recast as a mere contractor? Difficult, since that is how the law itself has already recast her. 23  Emmens v Elderton (1853) 13 CB 495, 506. 24  Employment Rights Act 1996, s 203. 25  Mark Freedland, The Personal Employment Contract (OUP 2003) 15.

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4.  Authority at Work The implications of this recasting go beyond the law’s ability to maintain its own policy of recognition and support for the employment relationship. MacNeil is surely being too quietist in portraying the law as a ‘lens through which . . . relations are observed’, those observed relations being the only relations that ‘really exist’.26 As MacNeil’s own work also tends to illustrate, the law can affect the range of available social relations. The law is no mere instrument of observation to be judged by its accuracy. It is also an engine of adjustment in the ideological orientation of public culture. It helps to reconstitute the social world as it represents it. In civilisations in which prestige attaches to the rule of law, the law generally plays a powerful (if often imperceptibly gradual) role in the reshaping, sometimes even the replacing, of the relationship-​types and other role-​types that it purports to recognise and support. By locating the employment relationship inside the contract of employment, the law drives, or at any rate helps to drive, the social process that I labelled the contractualisation of employment. This has many implications. I want to focus on the implications for the way we have come to understand the assignment of authority in the workplace. Recall: contractual obligations exist for content-​independent reasons. Take, for example, a consumer’s obligation to pay a revised price for supply of electricity or water supply when pricing changes are announced by the supplier. Here the supplier exercises authority over the consumer. Where it is contractual authority, the fact that the contract was entered into by the consumer is the reason for the consumer’s subjection to it. She bound herself. That is a content-​independent reason for her to incur the obligation to pay the revised price. The extensive contemporary use of contract and similar voluntaristic devices (agreement, promise, consent, etc) to assign authority can blind us to the fact that the legitimacy of one’s authority need not, and generally does not, depend exclusively on how one’s authority is acquired. A much simpler reason for being subject to the authority of another is the obvious content-​dependent reason. It is that submitting to the authority will help us to do better what, quite apart from the authority’s intervention, we ought to be doing.27 Under this rationale, it matters to the authority’s legitimacy whether the authority is used wisely. Recasting an authority-​relationship in voluntaristic terms has the effect of reducing the emphasis on the wisdom of the authority’s use (the content-​dependent reasons for following it) in favour of an emphasis on the mere fact that the authority was acquired in a certain way (the content-​independent reason). In the case of a contractual recasting, or contractualisation, the ‘certain way’ is much as MacNeil says it is. It is the This for That way. It may be work in return for wages or discounts in return for repeat custom or love in return for loyalty. The whole point is that, so far as the content-​independent reasons are concerned, it doesn’t matter what the This or the That happens to be. That is what it means for the reasons to be content-​independent. Applied to the This of work and the That of wages, the effect is what might be called, with a deliberate nod to Marx, the alienation of labour.28 It is as if one’s working life is not part of one’s life. The questions of whether one is engaging 26  MacNeil (n 19) 300–​1. 27  This Joseph Raz usefully labels the ‘normal justification’ of authority. Raz, ‘Authority and Justification’ (1975) 14 Philosophy & Public Affairs 3. 28  Karl Marx, ‘Estranged Labour’ in Marx, Economic and Philosophic Manuscripts of 1844 (Martin Milligan trs, Dover Publications 2007) 72–​3. Marx lists a variety of interconnected senses in which ‘wage labour’ can be said to be alienated. The one that interests us here is the one that Marx mentions second: ‘[Such work] is . . . not the satisfaction of a need; it is merely a means to satisfy needs external to it. . . . [It] is a labour of self-​sacrifice, of mortification.’

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in worthwhile pursuits, putting one’s talents to good use, developing one’s personality, filling one’s time constructively, living with integrity—​none of these questions arise. Or, more precisely, none of them arise in connection with the employer’s exercises of authority. So long as he is getting his value out of your work, it is not fundamentally his problem what you, the employee, are getting out of it. For it is no part of the case for his having authority over you, on the This for That picture, that he is helping you to do better what, quite apart from his intervention, you ought to be doing. If your life is being wasted as a flunkey or a lackey, as a human conveyor belt or a human computer or a human cannonball, exit is your remedy. You can always resign and look for work elsewhere. If you do, good luck in finding a more indulgent, broad-​minded, life-​enhancing employer!29 The freedom to resign, for what it’s worth, is preserved for you by the law of contract, which implies a legal power to terminate a contract of employment by reasonable notice on either side. But the law of contract does not imply a legal duty, on the part of the employer, to use his authority reasonably while the contract of employment subsists. You may say that it could not do so, for authority that has no latitude to err is no authority at all. Yet there is a large space between having latitude to err and being immune from any charge of error. Public bodies have legal duties to act reasonably in the exercise of their public authority, and in particular with due regard for the way in which their decisions impact on the lives of those over whom the authority is exercised. These duties plainly do not annihilate the whole of their authority; they merely circumscribe it. And notice that these duties do not evaporate when those over whom they are exercised are also bound to submit to the authority by a voluntary commitment (for example, by an oath of obedience taken upon naturalisation). A content-​independent rationale for the public body’s authority does not freeze out the more basic content-​dependent rationale, and so does not put paid to questions, even questions asked by other authorities (such as reviewing courts), about how wisely that body governs. It would be no answer to a complaint by a naturalised citizen whose days are repeatedly wasted on futile attendance at a government office (as in Kafka’s Vor Dem Gesetz30) that by her oath she had submitted herself to the authority of the state. Why is it taken to be a final answer to a complaint by an employee whose days are repeatedly wasted at the beck and call of a derelict employer that this is exactly what she contracted into? It might be different if it were just the occasional lost hour. But day-​in, day-​out, maybe more than half of her waking life, with time limits on trips to the loo and no way to receive emergency calls from the children’s school and wearing hair and clothes to the employer’s detailed specifications? It is simply unbelievable that anyone, paying wages or otherwise, could enjoy legitimate authority over such an extensive swathe of another’s life irrespective of the wisdom of the authority’s exercise, and in particular irrespective of how the use of that commandeered time contributes constitutively to the life of the person who is subject to the authority.31 That is surely one of the animating thoughts of many younger people who now flee the contractualised employment relationship into the ‘gig economy’. For in the ‘gig economy’ the contractualisation is at least in the open. One is a bare contractor and there is no illusion to the contrary, no ‘commitment to continuity’, no ‘mutual obligation of trust

29  This riposte bears on a different point that Marx makes (ibid 72) without keeping it clearly distinct: ‘His labour is . . . not voluntary but coerced, forced labour.’ I do not rely on this claim here, but I do find highly plausible the detailed development of it in GA Cohen, ‘The Structure of Proletarian Unfreedom’ in Cohen, History, Labour, and Freedom (Clarendon Press 1988). That is why I express the riposte here with more than a hint of sarcasm. 30  The parable first published in Franz Kafka’s collection Ein Landarzt (Kurt Wolff Verlag 1919) and later included in his novel Der Prozess (Verlag Die Schmiede 1925). 31  On the limits of consent as a justification for authority, see Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 88–​94.

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and confidence’, no forlorn expectation that the non-​contractual qualities of the employment relationship will somehow be kept alive within an otherwise contractualised scheme of thought. You may object that I am exaggerating the distance between administrative law and labour law, and in particular between the ways in which authority is constrained in each. The law of unfair dismissal deploys the idea of the reasonable employer in much the same way in which administrative law deploys the idea of the reasonable public body. The law of unfair dismissal burdens the contractual authority of the employer with restrictions that have a content-​dependent rationale. It filters for wisdom; it has the reviewing tribunal assess the employer’s reasonableness in dismissing the employee ‘in accordance with equity and the substantial merits of the case’.32 True, the emphasis is on wisdom only in how and why the employer terminates the employment relationship; but thanks to the legal rules about ‘constructive dismissal’ the standard of the reasonable employer has a potential feedback application to other actions, falling short of dismissal, which drive an employee out. Is this not akin to judicial review of public bodies? In some ways, yes. Yet one may doubt the extent to which it limits the contractual authority of the employer. The reasonable employer, it seems, is for the most part an employer who upholds the terms of the employment contract. Those terms often include the employer’s own disciplinary rulebook, incorporated by reference or custom into the contract. The courts insist on the rulebook’s being clearly promulgated, scrupulously adhered to by the employer, and administered fairly (‘equit[ably]’) with attention to the circumstances (‘substantial merits’) of the employee’s alleged disciplinary offence. But how about the list of disciplinary offences itself? That is generally regarded as lying entirely within the scope of the employer’s contractual authority, and hence beyond review.33 Be that as it may, my main goal a couple of paragraphs ago was not to bemoan the law’s failure to register the parallels between the authority of employers and the authority of public bodies. That complaint leaves too many hostages to fortune. My main goal was to bring out how awkwardly such parallels sit with the dominant ideology of the day, social as well as legal, according to which the fact that one entered into the contract of employment is the whole rationale for the employer’s authority over one, which therefore need not be exercised with attention to the place of one’s work within one’s wider life. On the This for That model, going to work is a cost to the employee, a sacrifice of time and effort that calls for compensation, a burden to be borne in return for wages. Work is not supposed to have a place within her wider life. It is not supposed to contribute constitutively, as I put it before. It is supposed to contribute only instrumentally, by giving her a way of supporting herself in her life, a life which is conducted wholly outside work in what is tellingly called her ‘spare time’. Her working life, to repeat, is not regarded as part of her life at all. She is said to have a ‘work/​life balance’, not a balance among life’s demands. For the demands she faces at work are not seen as demands of her life. They are demands of her work, which is as conceived as an alien force consuming what would otherwise be her life. That is the sense in which she is alienated from her work. That alienation from her work is the fundamental problem that, alas, no statutory right augmenting her contractual rights, nor any implied term in her contract, can be expected to do much to ameliorate. It is an inevitable concomitant of contractualisation.

32  Employment Rights Act 1996, s 98. 33  See eg Hadjiannou v Coral Casinos Ltd [1981] IRLR 352 (EAT); Ladbroke Racing v Arnott [1983] IRLR 154 (EAT).

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5.  Freedom and Self-​Realisation at Work In Section 3 I pointed to one way in which freedom of contract can come at the expense of freedom in general. If every option is contractualised, then being a contractor is one’s only option. In Section 4 we have encountered another way in which freedom of contract can be freedom-​sapping. Contracts assign authority. They can be used to assign vast authority in the employment context, potentially subjecting people for a significant proportion of their waking hours to a regime of petty rules and capricious directions which, if it were replicated outside the workplace, would be classified as the apparatus of a totalitarian regime. Can a mere contract lend legitimacy to a totalitarian regime, even one from which one can luckily absent oneself overnight, and from which one could theoretically absent oneself altogether if only there were better places to work? Some in the ‘social contract’ tradition of political thought have assumed that it could. They have taken comfort in the supposition that contracts legitimating totalitarian regimes would never be entered into.34 The real-​life labour markets of capitalist economies test this supposition to the limit. Their excesses tell against the idea that contracts have the ability to legitimate authority content-​independently that social contract theorists, and many others, imagine them to have. For if contracts had such an ability, contracts would be no friends to human freedom. They are friends to human freedom only if they are held to take effect within much stricter limits, and in particular with suitable respect for (the rest of) our valuable freedoms. Freedom of contract on its own, consuming all else around it, is not a liberal doctrine. It is not even a ‘classically’ liberal doctrine. Nor do we do anyone any favours by calling it a ‘neoliberal’ doctrine or a ‘libertarian’ doctrine. It is more like a pseudo-​liberal or pseudo-​libertarian doctrine: a freedom-​ destroying monster with a freedom-​friendly face. More salient than our discoveries about contract and freedom, however, have been our discoveries about contract and work. I gave a nod to Marx because Marx rightly saw that work, when things go well, contributes to the life of the worker.35 That is part of its point. It is not, or not mainly, a sacrifice. It is a sacrifice only when and because things are not going well. And there is, as Marx also saw, and element of downward spiral in the relevant way of not going well. When people come to see their work as a sacrifice they resent it more and are less inclined to commit themselves to it. They just want to get home to their lives. That resentment necessitates an exercise of authority over the worker, during working hours, that compounds the worker’s alienation and breeds her resentment and necessitates more authority . . . and so on. Jaded cynics laugh at such claims and peddle counterclaims about ‘human nature’ and the temptation to skive and shirk. Well, they would do that. For they also laugh off Marx’s very wise observations about the ideological plasticity of much that is commonly called ‘human nature’.36 Laziness, Marx saw, is as much a consequence as a cause of capitalist decadence. If work becomes alienated from people, people inevitably become alienated from work. Here I have explored the contractualisation of the employment relationship as the contemporary engine of alienation from work. Was the engine in Marx’s time any different? Has the story of labour, and of labour law, always been the saga of creeping contractualisation? Perhaps it has. It was in Marx’s lifetime, after all, that Henry Maine proudly wrote: 34  eg John Rawls, A Theory of Justice (Harvard University Press 1971) 261–​2. 35  Marx (n 28) 72. 36  See eg Karl Marx, ‘Critique of the Gotha Programme’ in Lawrence Simon (ed), Karl Marx: Selected Writings (Hackett 1994) 321. It does not follow that Marx did not believe in human nature. On the contrary, he held a teleological view of human nature akin to Aristotle’s. Estranged labour, says Marx, ‘tears [man] from his species life, his real species objectivity’: ‘Estranged Labour’ (n 28) 76.

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Thus the status of the Slave has disappeared—​it has been superseded by the contractual relation of the servant to his master.37

‘From Status to Contract’ was the slogan that Maine chose to capture what he regarded as a universal dynamic of progress in the legal interpretation of roles, including but not limited to work roles.38 We should beware, however, of the anachronistic assumption that he was talking about contractualisation in the sense that I have given to the word here. In Maine’s slogan, ‘status’ was used narrowly to designate ‘such conditions as are [not] the immediate or remote result of agreement’.39 It is not possible for the master–​servant relationship to be the immediate or remote result of agreement while still being a relationship of ‘status’ in Maine’s sense of that word. But it is clearly possible for the master–​servant relationship to be the immediate or remote result of agreement while still being a relationship of ‘status’ in the ordinary sense of that word. You only have to read The Remains of the Day to see that much.40 The non-​contractual content of the role survives the contractual mode of initiation and termination. Yet one may reasonably say that the liberating arrival of the contract as a mode of initiation and termination of service relationships, putting an end to feudal forms of bonded labour, is what gradually metastasised into the oppressive colonisation of modern working life by the This for That of contract, and hence the creeping elimination of all other working roles but that of contractor. As my remarks about freedom of contract suggested, one can have too much of a good thing. One need not dismiss Maine’s pride in the shift ‘from Status to Contract’ to be horrified at how contract has become an all-​ consuming tyranny in the intervening 150 years. Is there some tension between my liberal critique of the contract of employment (as a threat to freedom) and my Marxian critique of it (as a recipe for alienation)? You might expect there to be. Marx championed a life of self-​realisation, a life of optimal development of one’s potential. He regarded the liberal (‘bourgeois’) idealisation of personal autonomy as an invitation to squander value, wasting one’s days on second-​or third-​best pursuits. The suboptimal development of one’s potential could be defended, in liberal thought, by pointing to the fact that it was the path that one freely chose from a range of worthwhile alternatives. Marx was right to regard the two ideals as rivals.41 But one should not conclude from the fact that they are rivals that they have no common enemies. If I am right, the contractualisation of work is a common enemy against which liberal lovers of personal autonomy and Marxian lovers of self-​realisation should equally have raged and rallied . . . while they still had the chance.42

37  Henry Maine, Ancient Law (6th edn, J Murray 1876) 169. 38  ibid 170. 39 ibid. 40  Kazuo Ishiguro, The Remains of the Day (Faber & Faber 1989). 41  See Raz, The Morality of Freedom (n 31) 375–​6. 42  For a slightly more optimistic take on many of the same themes, see Hugh Collins, ‘The Contract of Employment in 3D’ in David Campbell, Linda Mulcahy, and Sally Wheeler (eds), Changing Concepts of Contract: Essays in Honour of Ian MacNeil (Palgrave Macmillan 2013).

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3 Is the Contract of Employment Illiberal? Hugh Collins* 1.  A Few Bad Apples? Imagine the following situation. An unelected and plutocratic government announces to its subjects: ‘You must obey all our instructions to the letter and always act in the best interests of the government, including always praising it and never criticising it; senior members of staff of the government such as the President must always be treated with deference and uncritical obedience; and to ensure compliance with this instruction, the government will use every means of surveillance available, in order to monitor your behaviour to ensure that you follow these instructions to the letter and the spirit both when you are in public spaces such as your workplace and also at home.’ History shows that close approximations to this kind of authoritarian government have been all too common. Whilst freedom remains a contested concept in political theory, thanks to the writings of Orwell1 and Berlin,2 amongst many others, the idea that one can be forced to be free has been largely rejected, with the consequence that authoritarian regimes are regarded as profoundly inconsistent with freedom and other connected liberal values such as dignity, privacy, and equality. Now, take the same situation as was imagined in the opening paragraph and substitute the word ‘employer’ for the word ‘government’. Following such a substitution (and some other minor linguistic adjustments) the sentence would read as follows. An employer says to its subjects (or employees): ‘You must obey all our instructions to the letter and always act in the best interests of the employer, including always praising it and never criticising it; senior members of staff of the employer such as the President and managers must always be treated with deference and uncritical obedience; and to ensure compliance with this instruction, the employer will use every means of surveillance available, in order to monitor your behaviour to ensure that you follow these instructions to the letter and the spirit both when you are in public spaces such as your workplace and also at home.’ This sentence now describes fairly accurately the modern employment relationship governed by the common law of the contract of employment. Although some minor concessions will have to be made later, the main point of this substitution seems indisputable: the contract of employment embraces an authoritarian structure that appears to be at odds with the commitment in liberal societies to values such as liberty, equal respect, and respect for privacy. A typical employee experiences considerable constraint on liberty, not only arising from the need to be physically present in the workplace during working hours to perform work, but also arising from rules promulgated by the employer about such matters as dress codes, statements on the social media, and freedom of expression generally. The employment relationship also appears unequal because it creates an authority relation under which

*  Thanks to Cecile Fabre and Virginia Mantouvalou for comments on an earlier draft. 1  George Orwell, Nineteen Eighty-​Four (Secker & Warburg 1949). 2  Isaiah Berlin, ‘Two Concepts of Liberty’ in Berlin, Four Essays on Liberty (OUP 1969). Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 3 © Hugh Collins 2018. Published 2018 by Oxford University Press.

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the employee must obey all lawful orders of the employer or mangers. Most workers quickly learn that it is in their best interests to be subservient and to show deference to managers even though nothing may be said formally to that effect in the terms of the contract of employment. The impact on privacy arises from the inability of the employee to have an unfettered personal life at work such as spending time making friends. Many employers also attempt to control what employees do outside working hours, from banning membership of certain political parties to attempting to govern sexual preferences and leisure activities. This control exercised by employers over private life can be taken to extremes, as in the case of a woman dismissed from her job after a picture of her raising her middle finger at Donald Trump as his motorcade passed her on her bicycle in her leisure time went viral on the internet.3 Should we be troubled by this comparison between authoritarian political regimes and the structure of the employment relationship? Is the presence of oppressive constraints on liberty, threats to the ideal of equal respect for persons, and invasions of privacy as morally troubling in the context of a contractual relation of employment as when applied to political institutions? This authoritarian character of employment relations is often noted and criticised in literary and sociological works and in moral and political philosophy.4 For instance, the philosopher Elizabeth Anderson has suggested that workplaces in the US are governed by ‘communist dictatorships’.5 She points out that employers, like dictators, own all the means of production apart from labour power, are unaccountable to their inferiors in the hierarchy, and that they seek to control not only conduct in the workplace but also the personal or private sphere of autonomy of employees by imposing dress codes, testing for drugs, and monitoring what is said on social media. Admittedly, the sanctions available to employers are not on a par with the severity or ferocity of those frequently deployed by political dictators, but the economic sanctions of demotion, deductions from pay, and dismissal, as well as the social sanctions of harassment and bullying, certainly can inflict considerable pain on workers. Anderson suggests that her description of employment relations as a form of dictatorship would be ‘deeply surprising to most people’.6 Whilst that claim may not be correct, Anderson’s broader point that people do not seem to worry explicitly and vociferously about the presence of this autocratic governance structure in their daily lives seems valid. Newspapers often decry governments’ attempts to create institutional structures to control populations by terror and through the denial of civil liberties, but we do not see leading articles objecting to the institution of the contract of employment on the ground that it is calculated to destroy liberty, equality, privacy, and other liberal values. At most, newspapers to tend cover stories where, as in the example of dismissal for the cyclist’s gesture of political expression, the employer has arguably stepped well beyond the informal norms governing the proper scope of autocratic managerial power, without the newspapers ever seriously questioning the basic structural arrangement that confers that dominating power on the employing entity.

3  Joanna Walters, ‘Woman who gave Donald Trump the middle finger fired from her job’, The Guardian (7 November 2017) accessed 9 January 2018. 4  eg: Alexis de Tocqueville, Democracy in America (Vintage Books 1945) Pt II, 195; Reinhard Bendix, Work and Authority in Industry (University of California Press 1974); Alan Fox, Beyond Contract: Work Power and Trust Relations (Faber & Faber 1974); Allan Flanders, Management and Unions: The Theory and Reform of Industrial Relations (Faber & Faber 1975) 132; Richard Edwards, Contested Terrain (Basic Books 1979). 5  Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk About It) (Princeton University Press 2017) 37–​8. 6  ibid 40.

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Why does the presence of autocratic power in our daily lives in the workplace not constantly provoke criticism and questioning? Many kinds of explanation for this striking lacuna are possible. The most probable explanation seems to me to be a widespread view that employment, despite its objectionable features, nevertheless provides most workers with material benefits, economic security, and to a variable extent meaning and social inclusion for their lives. Securing employment for nearly everyone remains an uncontroversial prime objective of all governments. To be more precise, the perceived efficiencies of the division of labour, which are secured by the institution of employment within a firm by means of savings on transactions costs,7 are widely regarded as essential to our well-​being and provide a justification for any or at least any proportionate deprivations of liberty imposed on the individual employee. In the light of these strong welfare arguments in favour of employment as the core legal institution for securing labour power in the relations of production, few people seriously doubt that the material and social benefits of this institution significantly outweigh its costs to liberty and autonomy. In general, people may regard the trade-​off between liberal values and material welfare as broadly acceptable. But liberals should, at least in principle, oppose such a trade-​off, because owing to the priority that they attach to individual autonomy or liberty, these core civil liberties should not normally be sacrificed for reasons of welfare or efficiency. There is probably another general reason for the apparent lack of concern about the autocratic features of the contract of employment. Many people may regard the examples of abuse of power by employers as aberrations from what is normal. In general, it can be argued, employers tend to treat their employees fairly and decently, because it is in their business interests to have a contented, stable, well-​motivated, and obedient workforce. It may be for this reason that we only observe criticisms of the institution of employment when something out of the ordinary has happened and not with regard to the ordinary exercise of powers of managerial control over the workforce. These aberrations are not significant on this perspective, because contracts of employment are consensual and can be terminated by an employee whenever the employer breaches the standards of good faith or mutual trust and confidence. In the assessment of these views that tend to reject any inconsistency between liberal values and contracts of employment, we need to distinguish between three different positions. The first position states that the legal institution of the contract of employment largely conforms to liberal values, though, as in all human institutions, there will be a few bad apples who misuse the managerial powers that employers have acquired through the legal institution of the contract of employment. The second position holds that the structure of the contract of employment creates a substantial risk that employers will abuse their powers, which, when combined with perceived economic incentives to try to exploit the workforce, create a strong, though not universal, tendency to establish autocratic relations of production and the frequent occurrence of abuse of power by employers. The third position insists that the objectionable autocratic dimension of employment relations is not simply contingent in the senses described either in the first or second formulations, but is rather inherent in the conception of an employment relation as a legal institution in which one party, the employer, has the power and the right to govern the other party, the employee, in

7  Ronald H Coase, ‘The Nature of the Firm’ (1937) 4 Econometrica NS 386; Oliver E Williamson, The Economic Institutions of Capitalism (Free Press 1985) ch 9. Not all economists accept the necessity of hierarchy: Stephen A Marglin, ‘What Do Bosses Do? The Origins and Functions of Hierarchy in Capitalist Production’ (1974) 6 Review of Radical Political Economics 33.

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accordance with a broadly defined discretion. In other words, on this third view, the inconsistency between liberal values and the contract of employment is immanent in this legal institution. The choice between those three positions is not an empirical question. Newspaper stories and legal cases illustrating abuses of power are potentially consistent with any of the positions, though the second and third positions become more plausible as the stories multiply about the bad apple employers. In practice, the choice between these positions may often be made in accordance with broader political frameworks, with conservatives tending to prefer the story about a few bad apples and progressives and liberals tending towards the second formulation about substantial risk of abuse of power. In this chapter, my purpose is to assess the validity of the third position that claims an inherent tension between the contract of employment and liberal values. This task poses an analytical and philosophical question. To answer this question about the possibility of an inherent contradiction between liberal values and the contract of employment, we need to develop a conception of the key features and structures of the legal institution of the contract of employment and then assess their consistency or compatibility with some of the core values of liberal political and moral thought such as freedom and equality. The first section of the chapter provides an analysis of the structures of the contract of employment that appear especially pertinent to this enquiry. This section draws on and develops a distinction between an employee’s submission to a contract of employment and an employee’s subordination to managerial control. The second section examines more closely the kinds of liberal values that appear to be contradicted by the institution of the contract of employment and in particular those values that are subverted by its distinctive dimension of subordination. Having concluded that there is an inherent conflict between some liberal values and the subordination that is inherent in the contract of employment, a third section addresses and rebuts a cluster of positions that insist that any measurement of private arrangements such as contracts by reference to public values such as liberty and equality is misconceived. The conclusion is that there is an inherent tension between some liberal values and the institution of the contract of employment that can only be resolved by labour law adopting a particular, worker-​protective, legal framework for employment relations.

2.  Submission and Subordination In his famous Hamlyn lectures, Sir Otto Kahn-​Freund introduced a brief discussion of the contract of employment by observing: In its inception it is an act of submission, in its operation it is a condition of subordination, however much the submission and the subordination may be concealed by that indispensable figment of the legal mind known as the ‘contract of employment’.8

In this passage, Kahn-​Freund drew an important distinction between an employee’s act of submission and an employee’s experience of subordination. Submission occurs when a person enters a contract of employment on terms dictated entirely or almost entirely by the employer and where there may be no reasonable alternatives to earn an income but to take this job.9 One reason why employees typically submit to the 8  Paul Davies and Mark Freedland, Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 18. 9  This concept of submission seems to be consistent with a thin theory of consent that usually suffices in law to create a contract but also with the acceptance of the Marxist claim that workers are forced to sell their labour power. See Gerald A Cohen, ‘The Structure of Proletarian Unfreedom’ in Cohen, History, Labour, and Freedom (OUP 1989) 255.

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employer’s terms is that they lack the bargaining power to contest them. But submission to standard form contracts is commonplace in most transactions, be they between consumers and businesses or between businesses. Standard form contracts that are used repeatedly by a business save on transaction costs and enable that business to use a uniform business model that produces other savings. As consumers, when we click on a website to accept the standard terms and conditions, in effect we submit to the terms hoping that they will not matter in practice and knowing that in all likelihood the terms offered by competitor businesses will be much the same. In the EU, consumers also benefit from extensive protections against unfair terms in non-​negotiated contracts,10 so that blind submission without reading the terms may be the rational choice in most instances. Despite the absence of similar protections against unfair terms in contracts of employment, employees may also decide that having identified the core aspects of the proposed job including the main duties and the rate of pay, it is best to take the job on offer rather than hope that something better will turn up. This act of submission takes the risk that the small print of the employer’s standard form contract and associated rulebook will impose unwelcome duties and qualifications to entitlements. The concept of subordination differs from submission, because it concerns the daily experience of an employee being subject to the hierarchical control of the employer or manager. This is a power relationship constructed by the contract of employment and supported by the law. The employer is the dominant power—​the boss—​and in accordance with the contract of employment the employee must serve as an instrument of the employer’s commands. This power relation that has been described as subordination is not the same as the idea of inequality of bargaining power in the market. Whereas the act of submission to a standard form contract is partly determined by the employer’s market power to impose terms on the job applicant, a relation of subordination is determined not by market forces but by the contractual relation that requires obedience on the part of the employee to the employer’s lawful instructions. Even in the absence of express terms that confer a power on the employer to issue binding instructions, under the English common law an employee is under an implied duty to obey all lawful instructions and to ‘serve the employer faithfully within the requirements of the contract’.11 An employee is also under a duty to serve the employer loyally, a duty that might forbid the disclosure of information that harms the employer’s business reputation or gives aid to a competitor of the employer.12 These duties of faithful service apply equally to senior and managerial employees who may have considerable bargaining power to influence their terms of employment. Senior managers of a business are required to follow instructions issued by the owners or the board of directors and are therefore in a relation of subordination, whereas when they negotiated their package of terms and remuneration it is possible that the bargaining power of those senior managers was considerable and that there was no meaningful sense in which they had to submit to the employer’s dictated terms. Subordination is inherent in the employment relation, whereas submission, though widespread, is ultimately a contingent phenomenon. Although not unique to the employment relation, this condition of subordination is certainly an essential feature of employment. In some commercial relationships where one party acts as the agent of the other, the principal may also bargain for the power to control 10  Council Directive 93/​13/​EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L95/​29. 11  Secretary of State for Employment v ASLEF (No 2) [1972] ICR 19 (CA); British Telecommunications plc v Ticehurst [1992] ICR 383 (CA). 12  Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169 (CA).

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in some detail how the agent performs its tasks.13 But in such agency relationships outside of employment, the principal usually confines its instructions to the specification of the goals to be reached rather than detailed directions on how the task should be performed. In contrast, employment is usually understood as an economic transaction in which the employer acquires the right to issue detailed instructions on how the work is to be performed and the goals to be achieved. In many instances of professional employees such as a surgeon or a lawyer, this right to issue detailed instructions may not be exercised in practice, because the employer may decide that it is in its best interests to leave the employee to identify the tasks that have to be performed and to manage all the everyday details. Nevertheless, the right to issue specific instructions is always present in employment, no matter the employee’s status in the organisational hierarchy or possession of unique skills. This condition of subordination that is inherent in the contract of employment can be elucidated further by three points that highlight its essential features. These concern the instrumental quality of employment, the conception of practical authority in employment, and the limits on discretionary power. Subordination may also be connected with loss of self-​esteem or a feeling of inferiority, but this is not integral to the concept advanced here, in part, because a subordinate may still feel a valued member of a team such as a musician in a symphony orchestra,14 and, in part, because subservient behaviour is not an independent criterion but a consequence of the presence of the third feature of discretionary power in the concept of subordination.

(a) Labour is not an instrument In this condition of subordination that is inherent in the employment relation, an employee becomes to a considerable extent like an instrument of the employer. The dictionary definition of the word ‘employ’ specifies as the meaning of the word employ: the use of a thing for a purpose. In the Oxford English Dictionary, the first instance of the meaning of the word ‘employ’ is ‘to apply (a thing) to some definite purpose: to use as a means or instrument’. John Locke wrote of employing wood to make a plough.15 In a slightly antiquated manner, I could say that I employ my hoe to weed my vegetable patch. When we introduce the terms ‘employer’ and ‘employee’, it is still recognised that an employer uses something (the employee) for a purpose of the employer, but now the conventional meaning includes the idea of a contractual relation and an expectation of wages in recompense for performance of the employer’s purpose. Even so, the core meaning of employment as an instrument is retained in connection with the institution of the contract of employment. The employer uses the services or labour power of the employee or servant for the employer’s purpose. To be employed is to be the instrument of someone else. On the other hand, for much the same reasons as labour should not be regarded simply as a commodity, nor can labour in the sense of a worker be regarded as a mere instrument like a plough or a hoe. In recognition of this point, Aristotle called a slave an ‘animated tool’, and the Roman scholar Varro described a slave as a ‘speaking tool’.16 This instrument, a worker or a slave, like a horse that pulls the plough, has its own capacity or will to achieve (or defeat) the purpose of its master. Furthermore, a worker or a slave, like a sophisticated computer program, has the ability to understand instructions and respond to questions. 13  Hugh Collins, Regulating Contracts (OUP 1999) 236. 14  Robert Nozick, Anarchy, State, and Utopia (Blackwell 1974) 246. 15  Oxford English Dictionary, Vol E (OUP 1971) 130. 16  Barry Nicholas, An Introduction to Roman Law (rev edn, OUP 1979) 70.

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Put together, these features of animation, independent will, and a communicative capacity clearly turn the instrument of a worker into something that in a sense is the opposite of an instrument: it is an instrument that may develop its own plans and carry them out. Like the computer HAL 9000, in 2000: A Space Odyssey,17 by forming its own plan that contradicted its formal mission, HAL ceased to be a sophisticated instrument and instead became something equivalent to a sentient being or a worker. Thus, labour or an employee is not a mere instrument or robot, because a worker is capable of forming his or her own independent plans and acting upon them. Yet, that difference is arguably more significant in theory than in practice. Although an employee can formulate personal plans at variance with those ordered by the employer, if the employee chooses to pursue those plans in defiance of the employer’s wishes, such disobedient conduct will typically result in the termination of the contract by dismissal. It is true that in some jobs an employer will want an employee to develop his or her own plans or define the tasks to be performed. A university will expect a professor to develop new research fields and publish the results; businesses often encourage senior employees or managers to try out innovations in products or processes. To this extent, in some jobs a worker can form and carry out his or her own plans. Yet, though the academic article or innovative process is very much the autonomous idea and plan of relatively self-​guiding and self-​motivating workers, the conduct is encouraged and facilitated by the employer because it fits into the employer’s broader goals or framework for productive activities. Although the employer may not have instructed the employee to perform this specific task, the employer has only granted a discretion to the employee to perform work that it is believed by both parties will accrue to the benefit of the employer. If the professor writes articles that are not regarded as scholarly or the manager’s innovative process causes a catastrophic breakdown in the production line, suddenly the limited scope for the employee’s task-​defining autonomy will become apparent as the employer commences disciplinary proceedings or terminates the contract. Therefore, no matter how much independence and discretion an employee enjoys, even a chief executive officer is expected to act loyally in the best interests of the employer’s business or organisation. The concept of subordination seeks to encapsulate this idea that whilst an employee is in an important sense an instrument of an employer, because employees are capable of forming their own independent goals, the key to understanding their instrumental quality is to perceive that within the structure of the contract of employment they must always subordinate or sacrifice their personal wishes to those that support the promotion and fulfilment of the goals of the employer. Employers often try to align incentives to support this subordination by rewarding employees well for working hard in the interests of the employer, so that an employee’s interests are also to some extent satisfied by performing as an instrument for the employer. But even where the interests are radically opposed, an employee is expected and legally required to give priority to the lawful interests of the employer.

(b) Practical authority Secondly, it is important to distinguish the relation of subordination from one of mere coercive force and control. In the relation of subordination, the employer not only has the power to control the workforce through threats of economic sanctions, but also an authority conferred by the law to direct the workforce.18 Indeed, subordination in employment is best 17  Warner Bros (1968), Director Stanley Kubrick, based on a story by Arthur C Clark. 18  Alan Fox, A Sociology of Work in Industry (Collier-​Macmillan 1971) 34.

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understood as a relation of ‘practical authority’ in the sense that an employer can issue orders that the employee ought to obey.19 The employee feels under an obligation to obey the instructions of the employer, not merely obliged to do so for fear of the adverse consequences of disobedience. The presence of a sense of obligation must mean that an employer has the power to ‘change the normative situation of the employee’.20 As a result of the employer’s instruction, the employee is not merely forced or obliged to comply, but is under an obligation to perform the selected task. The possession of practical authority means that those subject to the authority recognise that, apart from exceptional circumstances, they ought to comply with the instructions of the person with authority simply by virtue of the fact that the person has authority. As HLA Hart realised in The Concept of Law,21 practical authority or the sense of being under an obligation depends for its existence on an institutional framework. This framework in the legal system comprises a set of secondary or constitutional rules, which confer power on officials such as legislators and judges to change the rights and duties of others through the enactment of primary rules and other directives issued in conformity with the secondary rules. Similarly, a contract of employment provides an institutional framework that authorises the employer’s power to issue instructions to employees. The employee feels under such an obligation because the orders of the employer are authorised by the rules of the enterprise, and those rules are themselves authorised by the express or implied terms of the contract of employment, which in turn is treated by the law as a valid contractual undertaking. This is power or practical authority conferred by a hierarchical, secondary rule-​system, not the brute force of a robber or kidnapper making demands. There is an ‘externalisation’ of the orders issued by the employer,22 so that an employer acquires authority from a system of secondary rules, which, as HLA Hart realised, is what is required to turn the exercise of power into an exercise of practical authority. A relation of subordination is one where the dominant person has practical authority over the other. This authority is derived from a system of rules that are believed to confer that authority, such as the terms of the contract of employment, the rules of the organisation, and the background legal rules. In that sense subordination is inherently consensual, for it can only exist where the rules that confer authority are accepted as having the power to confer authority. But it is the institution of employment and its constitutive rule-​system that possesses and confers the authority. The main moral justification that is likely to be put forward for conferring that authority on management, as opposed to other persons or groups in the organisation, is that, by virtue of their skills and experience, they are more likely successfully to realise the shared goals of all the members of the organisation, such as material benefits and fair treatment, though that general justification is consistent with the possibility that particular instructions issued by managers may fall outside the power conferred by the rules or represent a misuse of their authority.23

19  Adapting the usage of others, eg Joseph Raz, The Authority of Law (Clarendon Press 1979) 10, I call this ‘practical authority’ in order to distinguish it from other kinds of claims to authority such as the Divine Right of Kings or the spiritual enlightenment of religious leaders or personal charisma. 20  Andrei Marmor, ‘An Institutional Conception of Authority’ (2011) 39 Philosophy & Public Affairs 238. 21  HLA Hart, The Concept of Law (Clarendon Press 1961) ch V. 22 On externalisation, see Gunther Teubner, ‘Global Bukowina:  Legal Pluralism in the World Society’ in Teubner (ed), Global Law Without a State (Aldershot 1997) 3. 23  This sentence applies to employment the insights about authority more generally by Joseph Raz, The Morality of Freedom (Clarendon Press 1986) 53.

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(c) Prerogative  power Thirdly, the practical authority of the employer comprises a discretionary power. Industrial relations theorists used to refer to the concept of a ‘managerial prerogative’ to explain how management governed the firm or organisation (in the absence of effective trade unions).24 An analogy with the royal prerogative was imagined to be close. Just as the king might have claimed in the past the right and the power to take executive action under the royal prerogative, including even the power to dispense with parliamentary legislation,25 so too the management of businesses might be presented as claiming to be able to take any executive action, including tearing up all the existing contracts of employment either through dismissal or imposed renegotiation. But this analogy should not be pressed far. The power of management is never as strong as the claims of kings to prerogative powers. Unlike kings, employers cannot claim to be above mandatory laws, such as criminal law and health and safety regulations. Nor can employers claim to be unfettered by their contractual obligations towards employees such as to pay them wages due and only to ask them to perform jobs within the scope of their job description. Labour law may add further obligations that limit the scope of an employer’s discretionary power, such as a requirement that it be exercised in good faith or not in an irrational way. Indeed, as argued above, the power of employers is in an important sense the very antithesis of a prerogative power, because subordination in employment is a relation of authority created by rules, and those rules necessarily set some limits on the scope of managerial discretion. Yet the power of employers is closer to a prerogative power than it may seem at first glance at the express and implied terms of the contract of employment for three reasons. First, employers can instruct employees to perform any work within the scope of the job as defined by the terms of the employment, which the employer itself may have devised in rather general terms. Secondly, if those terms turn out to restrict the discretion of the employer in an inconvenient way, the employer can always ignore those terms with little concern for any comeback from employees who want to keep their jobs and wages, or it can simply tear up the contract and replace it with new terms to which most existing employees, for fear of losing their jobs, will reluctantly give their assent. Thirdly, under the common law, the contract of employment can usually be terminated at will or on giving short notice, so its restraints on the abuse of discretionary power are never more than temporary. The concept of the relation of subordination in employment does not require acceptance of the view that employers have a prerogative-​like unfettered discretionary power. It should be acknowledged that the contract of employment places limits on the scope of authority, for those rules are necessary to create the practical authority of the employer in the first place. Nevertheless, it has to be conceded that the terms of the contract and the mandatory laws applicable to the employment relation in practice often place little constraint on the power of a determined employer to direct the workforce. In short, subordination entails the presence of a broad though not completely unfettered discretionary power.

3.  Employment and Liberal Values Having described the employment relation by reference to the concepts of submission and subordination, my next question is to consider to what extent and in what ways the 24  Fox (n 18) 156. 25  For a measured assessment of the concept of royal prerogative, see: William Blackstone, Commentaries on the Laws of England (W Prest and D Lemmings eds, first published 1765, OUP 2016) Book 1, ch 7.

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institution of the contract of employment may be regarded as contradicting or necessarily subverting liberal values. That question presupposes that we can point to an undisputed set of liberal values, which is of course not the case.26 Even so, we can make progress by adopting some commonly cited liberal values and assessing the institution of the contract of employment by reference to those values.

(a) Negative liberty and civil liberties Liberals usually place great weight on the importance of civil liberties or individual freedoms from interference by the state. As in the illustrative case of John Rawls’s A Theory of Justice,27 in liberal political philosophies, civil liberties or human rights are likely to be given priority over other considerations of justice such as improving everyone’s welfare or making society fairer. These civil liberties are often described as negative liberties, because they stress the importance of freedom from interference by others, especially the state. In the context of employment, the civil liberties that might prove especially important include freedom from control by the employer outside working hours, respect for the privacy of the employee’s home and correspondence, freedom of speech and expression, and freedom to manifest a religion. Workers may also be especially concerned about freedom of association insofar as it requires a right to be able to form or join a trade union for the protection of their interests. Is the institution of the contract of employment inherently inconsistent with or in tension with this priority given to civil liberties in liberal theories of justice? The answer to that question differs with respect to the features of employment described earlier as submission and subordination. It may sometimes be thought that the submission to a contract of employment is itself an interference with civil liberties. It is true that the contract will necessarily limit the liberty of an individual, if only by virtue of its requirement that the worker should attend the workplace during the prescribed hours. But this degree of interference with negative liberty does not seem to be much greater or more significant than entry into many other kinds of contractual relations. For instance, if I take a journey on the train from London to Oxford, barring the frequent delays I will be stuck in the carriage for about an hour, and though that confinement constrains my liberty to some extent, that limitation seems to be easily outweighed by the other benefits of the transaction and the arrangements, not the least being the fulfilment of my wish to get safely to Oxford. The combination of consent to the contract plus the benefit received from its performance such as wages tends to support a rejection of the idea that submission to a contract of employment is an interference with civil liberties. That point is strengthened by an appreciation that in practice an employee can also quit a contract of employment and so protect civil liberties, though at the price of loss of wages. The common law will not grant the employer an order to force the employee to stay at work.28 In contrast, the subordination involved in the contract of employment presents a substantial risk to the employee’s enjoyment of civil liberties. The employer may try to exercise

26  In the following discussion, many of the ‘liberal values’ discussed, such as liberty and equality, are widely supported by a variety of contemporary political philosophies including libertarianism, but the chapter focuses on the conceptions of these ideas that have been presented by those who appear to identify themselves as liberals, albeit disagreeing with other liberals on many issues. 27  John Rawls, A Theory of Justice (OUP 1972); HLA Hart, ‘Rawls on Liberty and its Priority’ in Norman Daniels (ed), Reading Rawls (Blackwell 1975) 230. 28  De Francesco v Barnum (1890) 45 Ch D 430, though restrictive covenants (or non-​compete clauses) sometimes come perilously close to forced labour: Warner Bros Pictures Inc v Nelson [1937] 1 KB 209 (Ch).

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its power to prevent freedom of speech and in some workplaces to prevent any speech at all. The employer may impose dress and appearance codes, including restrictions on clothes and ornaments worn for reasons of religious faith. The employer may use its authority to try to control activities outside the workplace, whether those be leisure activities, dating, sports, or political association. Employers have often used their disciplinary powers to dismiss workers who try to form trade unions or to engage in collective bargaining. In practice, the disciplinary powers of the employer can be used for any of these purposes unless employees benefit from special legal protections. It is evident that there is a substantial risk of the institution of employment leading to interferences with the civil liberties of employees. My question is, however, whether there is an intrinsic or necessary tension between the institution of the contract of employment and the protection of civil liberties. The case for arguing that the relation of subordination is inherently opposed to the enjoyment of civil liberties is that, for a liberal, civil liberties must be exercisable as of right, whereas in the context of employment, the enjoyment of civil liberties is normally dependent on permission from the employer or is subject to the employer’s legitimate aims and purposes. For instance, in liberal societies freedom of expression or speech can normally be enjoyed without asking anyone’s permission. But in the workplace, in the exercise of its practical authority, an employer typically assumes the right to control what employees may say. An employer often creates codes of conduct, such as rules against bullying and offensive speech, rules against denigrating the employer’s products, and rules about the protection of confidential information. In themselves, these rules may often be morally justifiable. The point is rather that, under the contract of employment, it is the employer that has a broad authority to fix limits on freedom of speech using its practical authority in the relation of subordination. Outside the employment relation, civil liberties will not be unrestricted either. Freedom of speech may have to be limited, for instance, by the laws of defamation and privacy. But in those cases, it is possible to argue that there is a conflict of civil liberties, between freedom of expression and the right to respect for private life, so that inevitably a balance must be drawn that limits either or both rights. In the context of employment, however, though it is sometimes pointed out that employers may have rights at stake as well, typically in the form of property rights, the main justification for the exercise of authority to restrict freedom of speech in the workplace is to enhance or protect the economic interests of the business, including its valuable business reputation. The inherent conflict between civil liberties and the relation of subordination in employment is therefore that the employer appears to be entitled to rely on its practical authority to restrict civil liberties not only for the protection of the rights of others, which is consistent with liberalism, but also for the purpose of pursuing private economic goals, a kind of justification for restrictions on civil liberties that liberals such as Rawls would normally reject. By way of a counter to that argument about the tension between subordination and the enjoyment of civil liberties, it is sometimes argued that there is no substantial threat to civil liberties in employment relations because employees can always find another job where the terms of the employment do not interfere with their enjoyment of their rights. The possibility of exit is said to prevent any significant power relation from arising.29 It may be true in some cases that plentiful alternative employment opportunities enable workers to resist autocratic power by the threat of exit, though one suspects that workers who have a record of being union activists or who resist the abuse of managerial authority and therefore have

29 eg Armen Alchian and Harold Demsetz, ‘Production, Information Costs, and Economic Organization’ (1972) 62 American Economic Review 777.

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poor references from their employer will have trouble in finding another job. But even if it were true that workers could normally obtain another job and enjoy their civil liberties better in that new position, is that a sufficient answer to the concern that an employee is subordinated to the preferences of the employer in respect of the enjoyment of civil liberties? In 2013, the European Court of Human Rights (ECtHR) in Eweida v UK reversed its position that there could be no interference with a manifestation of a religion in the workplace, because the employee could always take another job.30 The Court now holds that employers’ attempts to control religious clothing or ornaments are interferences with the civil liberty of freedom of religion and that therefore under the Convention any controls of such manifestations of religious beliefs can only be permitted if they are necessary and proportionate as protections for the rights of others or in the pursuit of some valuable goal. The Court is surely correct that the theoretical ability to change jobs does not displace the fundamental tension between the position of subordination and the liberal value of an unrestricted right to enjoy civil liberties (consistently with everyone else’s enjoyment of civil liberties).

(b) Positive freedom A different strand in liberal political thought tends to emphasise the importance of positive freedom. The core idea is that individuals should have the opportunity, in accordance with their free choice, to live worthwhile lives31 or lives that they have reason to value.32 With this political goal that values autonomy as the key ingredient of liberalism, civil liberties matter as a way of protecting freedom of choice and aspects of lives that people have reason to value, but what is equally important is for society to create a wide range of valuable choices that its citizens have a reasonable opportunity of accessing and enjoying. Good jobs clearly qualify as valuable choices and opportunities to live a life that is valued. The existence of a wide range of jobs being offered on the labour market ensures a degree of autonomy in the sense that the individual can exercise the freedom to select from a range of professions, vocations, careers, and skills. The institution of the contract of employment therefore does not appear to be inherently opposed to the idea of positive liberty. On the contrary, at least with respect to many jobs, the good jobs, the opportunity to take employment is a way in which people can become the authors of their own lives, and one of the greatest dangers to positive freedom is posed by persistent high levels of unemployment. Whilst that argument about the importance of the right to work as an aspect of positive freedom explains why, in the absence of coercion, submission to a contract of employment is not inconsistent with the positive conception of freedom, there remains the question whether the subordination in employment is necessarily opposed to autonomy. It is evident that in some jobs where mechanical performance of work with no social interaction is required, there is little or no enhancement of positive freedom and autonomy for there will be little chance for the worker to find opportunities for self-​realisation and social inclusion through work. But these jobs that require robotic behaviour are not the standard instance of employment. Although the contract of employment creates the risk of employment relations that tend to undermine positive freedom rather than assist it, this is not an inherent feature of the institution of employment.

30  Eweida and others v UK (2013) 57 EHRR 8. 31  Joseph Raz, The Morality of Freedom (Clarendon Press 1986) Pt V. 32  Amartya Sen, Development as Freedom (OUP 1999) ch 1.

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(c) Freedom from domination In yet another strand of liberalism, often called the republican idea of liberty,33 the central contention is that the kind of freedom that matters most to liberals consists of protection from unfettered discretionary power. What interferes immorally and unacceptably with liberty in the view of republican theorists is a power holder who can control others without constraints. Kings and dictators typically claim such discretionary powers and they are seen as the antithesis of this conception of liberty. Within political theory, the republican conception of liberty demands protection from a constitution, the rule of law, the separation of powers, and more generally the subjection of all exercises of power to rules laid down in advance. Although these rules and laws may restrict or constrain the exercise of civil liberties to a considerable extent, the republican theory views such constraints provided by clear rules enforced according to the rule of law as compatible with and required by liberty. Governments threaten liberty not by passing coercive laws but rather through the exercise of arbitrary power:  ‘the mere presence of arbitrary power has the effect of undermining political liberty’.34 This republican theory of freedom has been applied by its exponents not only to the political constitution of a society but also to institutions of civil society.35 Domination or the antithesis of freedom is seen as lying at the heart of the relation between master and slave or in employment relations. Domination, as I  understand it here, is exemplified by the relationship of master to slave or master to servant. Such a relationship means, at the limit, that the dominating party can interfere on an arbitrary basis with the choices of the dominated: can interfere, in particular, on the basis of an interest or an opinion that need not be shared by the person affected. The dominating party can practise interference, then, at will and with impunity: they do not have to seek anyone’s leave and they do not have to incur any scrutiny or penalty.36

On this view, if subordination in employment is inherently a relationship of arbitrary power, that relationship must deny employees freedom because they are subject to the arbitrary power of an employer. Mere submission to a contract of employment does not itself amount to an interference with freedom, however, for this is a contract that will be enforceable under the general legal rules enforcing the rights and obligations under contracts. The strength of the republican claim to find an inherent conflict between liberal values and the institution of employment depends on the extent to which it is correct to characterise the relation of subordination as an instance of a discretionary power that can be exercised arbitrarily. In our investigation of subordination earlier, it was concluded that the institution of practical authority relies on rules to constitute it and to place constraints on its abuse, though it was acknowledged that there are ways around those constraints. If that is correct, exponents of the republican theory of freedom and domination make a mistake when they equate managerial discretion with the kind of arbitrary powers claimed as royal prerogatives. If my earlier analysis of the concept of subordination in terms of practical authority is correct, it is in effect analogous to constitutional government not arbitrary dictatorships, so there is no necessary inconsistency with the liberal value of republican freedom, but merely a contingent risk, albeit a serious one. 33  Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1977). 34  Quentin Skinner, ‘Freedom as the Absence of Arbitrary Power’ in Cecile Laborde and John Maynor (eds), Republicanism and Political Theory (Blackwell 2008). 35  Alex Gourevitch, ‘Labor and Republican Liberty’ (2011) 18 Constellations 431. 36  Pettit (n 33) 22.

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(d) Equal respect Liberal theories also typically embrace the idea of equality, though the precise conception of equality and the weight attached to it is contested. Nevertheless, all liberals would agree that, at a minimum, each person should be accorded equal respect or equality before the law. This ideal of equal respect rejects the idea of privileged classes, castes, or inherent differences that entitle some persons to govern others. Of course, most liberals go further and require that everyone should enjoy equal opportunities in life or that measures should be taken to reduce material inequalities between people. Here I will focus on the narrow idea of equal respect or treating others as an equal to consider whether the institution of the contract of employment is inherently inconsistent with that liberal value. The practice of entering into a contract with another person tends to uphold the idea of equality before the law. The practice presupposes that both parties have an equal capacity to enter into transactions. In the past, when women were not permitted to enter into certain kinds of legally binding transaction, that disability presupposed an inequality before the law. Even though the terms of the contract may have been drawn up solely by one party and tend to support its own interests, that exercise of market power does not detract from the point that the contract presupposes that both parties are equal before the law. Therefore, there is no necessary inconsistency between the value of equality and the phenomenon of submission to contracts of employment. In contrast, the relation of subordination at the heart of the contract of employment appears to contradict even the most formal ideas of equality. The relation of subordination necessarily involves a hierarchy—​the master over the servant, the boss over the worker, or the manager over staff—​and this hierarchy seems to confer some kind of social superiority on the powerful party. Does this hierarchy necessarily involve a denial of the principle of equal respect or equality before the law? It can be argued that, when issuing orders, a manager or an employer is merely coordinating production and that there is no assumption when performing this necessary and useful function that the manager is more important or socially superior to the workers who receive the commands. But that hypothetical possibility of egalitarian hierarchical relations does not ever seem to be realised in practice. Managers assume not only a power to coordinate production, but also a right to deference from subordinate staff. Evidence of the existence of that inequality of respect can be observed in the normal practice of deferring to the judgement or decision of a person higher up the organisational ladder, even though that decision may seem foolish or pointless to the subordinates. Similarly, in some workplaces subordinate employees will greet their employer as ‘Sir’ or ‘Madam’, a bit like the upstairs/​ downstairs mentality once found in the stately homes of the aristocracy. Managers often assume that their superior position entitles them to criticise other staff in abusive, harassing, and demeaning ways. For our purposes, the question is whether these instances of the denial of equal respect in workplace hierarchies are aberrations, or the realisation of a contingent risk, or are inherent in the institution of the contract of employment. Elizabeth Anderson argues that the reduction of personal autonomy when acting as an instrument of an employer creates an inequality between the subordinated worker and the person with the power to control the performance of work. 37 In addition, an employer’s lack of concern for important interests of employees such as their health and safety also demonstrates an attitude that regards

37  Anderson (n 5) 126–​7.

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employees as inferior and as less deserving of concern that the employer. Anderson concludes, ‘Private government at work embeds inequalities in authority, standing, and esteem in the organizations upon which people depend for their livelihood.’38 Anderson’s argument appears to support the strong claim that all private hierarchical organisations implicitly deny the liberal value of equality, in this case roughly understood as the value of equal respect. In my previous arguments, however, the reduction of personal autonomy for those in a subordinate position was only regarded as a contingent infringement of liberal values, since some jobs grant considerable autonomy to a skilled employee. Nor do I accept the point that the willingness of one party to a contract to look solely to its own interests and not those of the other party necessarily involves a denial of equality. In most contracts, the law assumes that both parties will promote their own interests, but that does not mean that there is any inequality before the law. Yet, it does seem to be true that workplace hierarchies invariably create perceptions of inequality of social status, whether it be between white-​collar workers and blue-​collar workers, or semi-​autonomous professionals and clerical staff. As the Webbs observed, The capitalist is very fond of declaring that labour is a commodity, and the wage contract a bargain of purchase and sale like any other. But he instinctively expects his wage-​earners to render him, not only obedience, but also personal deference. If the wage contract is a bargain of purchase and sale like any other, why is the workman expected to toff his hat to his employer, and to say ‘sir’ to him without reciprocity . . ?39

Whilst in theory it might be possible to create a workplace in which everyone is accorded equal respect, the structure of practical authority confers in practice asymmetrical authority and responsibilities, which in turn construct different levels of esteem.40 From this ‘insolence of office’,41 it follows that there is an inherent conflict between the institution of the contract of employment and the value of equal respect with regard to differences in social status or esteem.

(e) Conclusion The foregoing exploration of the question whether there is an inherent tension or contradiction between the institution of the contract of employment and liberal values concludes that there are many contingent flashpoints and some inherent contradictions. With respect to the value of negative liberty, as represented by the protection of civil liberties, whilst there is no inherent tension with the idea of submission, the dimension of subordination in employment contradicts the full enjoyment of civil liberties in the workplace. Next, whilst submission to a job may augment the value of positive liberty to pursue choices that we value, subordination, particularly when it takes the form of requiring strict obedience in the context of almost mindless routine jobs, seems to undermine the potential for the job to promote positive liberty, but only in a contingent and not an inherent way. Contrary to the view commonly expressed that there is an inherent conflict between subordination in employment relations and the value of the republican conception of freedom,42 it was argued 38  ibid 130. 39  Sidney Webb and Beatrice Webb, Industrial Democracy (first published 1897, Longmans 1902) 842 fn. 40  There are similarities between this conclusion and the perplexing dialectic between master and servant in GWF Hegel, Phenomenology of Spirit (AV Miller trs, Clarendon Press 1977), with analysis of the text and foreword by JN Findlay, 111. 41  Michael Walzer, Spheres of Justice (Blackwell 1983) 155. 42  See David Cabrelli and Rebecca Zahn, ‘Civic Republican Political Theory and Labour Law’ in this volume, and Anderson (n 5) 64.

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that the institution of employment is structured by rules that confer and constrain discretionary powers in a manner that renders subordination in employment relations different from unacceptable forms of domination based on unconstrained discretionary powers such as the relation of slavery. Finally, with respect to the liberal value of equal respect or treatment as an equal, submission to a contract of employment represents a recognition of the formal equality of the parties, but the dimensions of hierarchy and subordination inevitably distinguish between persons on the basis of esteem and therefore workplace organisations based on contracts of employment not only contingently but necessarily deny the value of equal respect. In general, it is not submission to a one-​sided contract that contradicts liberal values, but rather it is the inherent hierarchical structure of the contract of employment that is signalled by the term ‘subordination’ that turns out to be the crucial subversion of some liberal values in the workplace.

4.  The Public/​Private Divide Although the previous paragraph presents an answer to the central question posed by this chapter, before concluding it is necessary to address one final objection to the argument made in the previous section that the institution of the contract of employment necessarily subverts some liberal values. This is a claim that the supposed inherent tension between the contract of employment and liberal values is irrelevant and misconceived. According to this objection, it is simply wrong to think that those liberal values, though absolutely vital in their appropriate sphere concerning government and the relationship between the state and its citizens, may have any application to aspects of civil society such as the family, the market, and private contractual arrangements such as employment. In short, the whole project of this chapter to assess the compatibility of the legal institution of the contract of employment with liberal values is regarded as misconceived, because it is attempting to import the values applicable to one social sphere in life and to impose them inappropriately on a different social sphere. Just as it would be foolish to evaluate the institution of money principally by reference to its inability to enable a person to acquire love, so too it may be asserted that it is wrong to try evaluate the contract of employment by reference to the values developed in the context of political theory and theories of constitutional government. According to this objection, the contract of employment serves material purposes within the division of labour and we should not evaluate it as if it were an institution dedicated to liberal values of justice. This argument about the irrelevance of liberal values to employment can be framed in a number of ways. Lawyers tend to discuss the idea in terms of a division between the public sphere and the private sphere or public law and private law. In recent years, much of the philosophical discussion about the issue has been about whether theories or principles of justice extend beyond the ‘basic structure’ of society (whatever that may be),43 to more detailed social and economic arrangements including possibly the rules of private law such as contract and tort. At bottom, however, the issue is the same: should we apply liberal values to economic institutions such as the contract of employment? In legal thought, the division between public law and private law is often seen as drawing a fundamental difference between relevant legal principles. Values such as the rule of law, the separation of powers, the protection of democratic institutions, and respect for human

43  Samuel Scheffler, ‘Is the Basic Structure Basic?’ in Christine Sypnowich (ed), The Egalitarian Conscience: Essays in Honour of GA Cohen (OUP 2006).

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rights are generally thought to be applicable in public law, but largely irrelevant to issues that arise in private law. For instance, constitutional bills of rights are usually primarily directed at ‘state action’ or only impose direct legal obligations on public authorities. It is therefore said that the constitution, as the embodiment of liberal values including the rule of law, equality before the law, and respect for fundamental rights, only imposes duties on public bodies and that private individuals should not be required to conform to those kinds of values. It seems to follow that in a relationship between two private individuals, such as an employer and an employee, one should not assess the character of that relationship by reference to those liberal values such as equal treatment and respect for fundamental rights that have inspired political constitutions. Instead, mirroring the law’s distinction between public and private law, the values that are appropriate for assessing the justice of contractual arrangements like employment will differ from grand constitutional principles and be rather more concerned with matters such as consent and protection of interests in the safety of the person and in possession of property. Furthermore, using this formal distinction between public and private law, insofar as liberal theories of justice construct distributive schemes for the fair allocation of resources, those principles should generally be confined to the sphere of public law, including welfare law and tax law, because private law, including contract law and the contract of employment, operates under different distributive principles that are often described as ‘corrective justice’. A similar argument is made in political theory with respect to the scope of application of liberal theories of justice. It may be claimed that any perceived tension between employment and liberal values is false, because the basic tenets of liberalism such as liberty and equality are only applicable to the constitutional arrangements of a liberal society, or only to its basic structures, not to its detailed practices and private arrangements made between citizens. The Theory of Justice presented by John Rawls, for instance, is a leading liberal theory, but his work is expressly confined to the basic institutions or the legal framework for society. If employment or vital aspects of employment should not be regarded as part of this basic structure of society, it would follow that Rawls’s principles of justice concerning fundamental rights, equality of opportunity, and a fair distribution of wealth would not be applicable to the contract of employment at all. The precise scope of Rawls’s theory of justice (and similar liberal theories of justice) is much debated.44 As an interpretive matter, it may be questioned whether employment is in fact excluded from the basic structure that must embody the principles of justice. Rawls said that the basic structure is concerned with the ‘way in which the major social institutions distribute fundamental rights and duties and determine the division of advantages from social cooperation. By major institutions I understand the political constitution and the principal social and economic arrangements.’45 In the same passage, Rawls goes on to say that his principles of justice may not be applicable to ‘the rules and practices of private associations’ and ‘they may not elucidate the justice . . . of voluntary cooperative arrangements or procedures for making contractual agreements’.46 It is unclear where the contract of employment might be placed in the division between major institutions and contractual agreements, for employment is basic in the sense that it is a cardinal legal and economic institution and is of similar importance to that of private property ownership, but on the

44  eg Arthur Ripstein, ‘The Division of Responsibility and the Law of Tort’ (2004) 72 Fordham Law Review 1811; Samuel Scheffler, ‘Distributive Justice, the Basic Structure and the Place of Private Law’ (2015) 35 Oxford Journal of Legal Studies 213. 45 Rawls, A Theory of Justice (n 27) 7–​8 46  See also John Rawls, Political Liberalism (Columbia University Press 1993) 267–​9.

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other hand it is a voluntary arrangement between private individuals. It might be possible to draw a line between the law’s mandatory framework for employment and the variations that may be made by agreement of the parties, with only the former being required to match the liberal principles of justice, but that may not prove a workable distinction in view of the ability of the parties to arrange their affairs to avoid mandatory regulation as in the case of sham self-​employment.47 Alternatively, following Cohen,48 it is possible to argue that no coherent distinction can be drawn between the fundamental institutions that must satisfy theories of justice and core institutions of civil society such as the family and contracts of employment that need not meet those standards. If liberal values such as respect for liberty and equality matter so much, there seems no good reason not to extend their reach into civil society. In the family, for instance, the importation of liberal values could mean that men and women should treat each other as equals, reject patriarchy and subordination, and share wealth equally. Similarly, lawyers question the distinction between public law and private law and on many occasions overstep that divide. For instance, if fundamental rights in the constitution are especially valuable, surely those rights should also be applicable at least to some other kinds of relations of power than those between citizen and the state? In exercising their disciplinary powers over employees, for instance, should we not require private employers to respect civil liberties, for their disciplinary powers pose a threat to freedoms such as freedom of speech and association that seems to be as equally grave as that presented by a powerful state. Indeed, in breach of the alleged divide between public and private law, many legal systems permit the application of constitutional rights to private employment relations. The ECtHR insists that member states of the Council of Europe are under a positive duty to protect civil liberties against private employers’ disciplinary powers.49 The ECtHR has insisted that employers cannot lawfully interfere disproportionately with an employee’s manifestation of religion at work,50 or dismiss someone simply for membership of a political party.51 Similarly, most laws against discrimination demand that the institutions of government must conform to the principle of equality in all their dealings with citizens, but those laws also apply to private employers and ordinary contracts of employment. More generally, public policy considerations may be applied by the courts to any kind of private or informal arrangement if they perceive some vital interest, value, or right to be at stake.52 It could be on this ground, for instance, that contracts for the performance of work that amount in practice to slavery or forced labour would be declared unlawful and unenforceable. The example of slavery and the experience of the widespread application of public policy considerations to any kind of private arrangements suggest that it is not possible to decide that a particular legal institution such as the contract of employment is inside or outside the scope of the basic structure to which liberal values must be applied. Instead, it seems better to recognise that liberal principles of justice may be thought to be properly applicable to any kind of private arrangement including contracts of employment, if there is a compelling 47  Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157. 48  Gerald A Cohen, ‘Where the Action Is: On the Site of Distributive Justice’ (1997) 26 Philosophy & Public Affairs 3. Cohen’s argument is that ultimately the principles of justice or perhaps merely the principles concerning equality in distributive justice should apply not only to all institutions but also our personal choices. See also Seana V Shiffrin, ‘Incentives, Motives and Talents’ (2010) 38 Philosophy & Public Affairs 111; Liam B Murphy, ‘Institutions and the Demands of Justice’ (1998) 27 Philosophy & Public Affairs 251. 49  Barbalescu v Romania App no 61496/​08 (ECtHR, 5 September 2017) applies the positive duty doctrine to secure respect for private life by private employers. 50  Eweida (n 30). 51  Redfearn v UK (2013) 57 EHRR 2. 52 eg Novosel v Nationwide Insurance Co, 721 F2d 894 (1983).

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public interest in the need for that particular arrangement to conform to liberal rights and principles. This chapter proceeds on the assumption that key institutions of civil society such as employment and marriage can be regarded at least in some respects as institutions that should conform to liberal values. Nevertheless, compliance with liberal values by institutions and arrangements of civil society may not need to be as complete or comprehensive as it must be in government. For instance, in the name of equality or autonomy, a liberal government should not discriminate between citizens on grounds such as race, sex, disability, and age without compelling reasons for so doing. In civil society, however, that prohibition against discrimination, though still influential, is not applicable and should not be applicable to every kind of relationship. An employer should not discriminate against workers on those grounds, but when choosing a marriage partner a citizen should be permitted to engage in discrimination on those grounds and many others. That permission to private actors to discriminate in personal and intimate relationships partly respects liberal values, such as liberty and respect for privacy, but it is also a recognition that whatever one’s view of the debate about whether or not liberal theories are only concerned with the basic structure, even the most expansive demands that liberal theory should apply to every aspect of civil society are likely to recognise the existence of a private sphere in which the demands of politically correct behaviour are silenced.53 On this view, it is appropriate to question whether the framework of the contract of employment that constructs a relation of subordination conforms to liberal values, albeit without insisting that its conformity to liberal values should be so comprehensive and total as the requirement of conformity placed upon institutions of the state.

5. Conclusion Immediately following Otto Kahn-​Freund’s withering description of the composition of the contract of employment in terms of submission and subordination, he added: The main object of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship.54

My investigation of the compatibility of contracts of employment with liberal values suggests that a different object of labour law may be at least as important as the distributive concern articulated by Kahn-​Freund. My argument has been that not only does the contract of employment create a serious risk of employers acting in ways that violate important liberal values such as equal respect and the protection of civil liberties in the workplace, but more significantly there is an inherent and unavoidable contradiction between some of these liberal values and the legal institution of the contract of employment and forms of workplace hierarchies built on it. In particular, it was concluded earlier that there is an inherent tension between the contract of employment and both respect for civil liberties and respect for equality before the law. The institution of the contract of employment is therefore in some respects both illiberal and inegalitarian. It has been argued, however, that many perceived tensions between liberal values and the contract of employment have been exaggerated or misconceived as inherent in the legal 53  Hugh Collins, ‘Discrimination and the Private Sphere’ in Kasper Lippert-​Rasmussen (ed), The Routledge Handbook of the Ethics of Discrimination (Routledge 2018) 360. 54  Davies and Freedland (n 8).

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institution when they are merely contingent. As a consequence, without dismantling the institution of the contract of employment altogether, labour law can address many of the key points of tension between liberal values and the contract of employment with a view to reducing or eliminating the problem. In particular, it has been suggested that at the core of the contract of employment is a relation of practical authority, which is constructed and confined by rules. The legal framework must ensure that the construction of practical authority is not distorted by the use of economic power into a relation of domination. By permitting termination of employment by the employer at will or with few constraints, however, the legal rules that construct and restrain practical authority can be far too readily subverted. What labour law needs to ensure is that practical authority is always effectively constrained by strict and often mandatory boundaries on the content of the performance obligations, and on an employer’s restrictions on workers’ civil liberties, and on the use of disciplinary powers including dismissal to revise the rules of governance in the workplace unilaterally. If labour law can achieve such legal measures, it will have begun to address some of the key contradictions between liberal values and the legal institution of the contract of employment. Without such laws in place, the institution of the contract of employment will remain inherently incompatible with liberal values.

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4 Dignity at Work Pablo Gilabert* 1. Introduction Basic labour rights, such as rights to freely chosen rather than forced employment, to safe and rewarding working conditions, and to form and join unions, are gaining traction in current ethical, political, and legal debates about human rights and social justice. These debates arise partly in response to the increasingly fragile predicament of workers in contemporary capitalist societies (rich and poor alike). Global neoliberal capitalism has fostered policies that weaken the protection of labour rights by reducing governmental regulations of the labour market, by hampering unions and other forms of workers’ associational power, and by sustaining forms of production that are intensely harmful to workers. A dramatic showcase of these phenomena occurred in 2013 in Dakar, Bangladesh, when a building containing garment factories collapsed, killing over 1,100 workers. Management knew that the building was unsafe, but cajoled workers to enter it through various threats. Significantly, the garment workers’ ability to unionise was restricted at the time, and governmental protections were insufficient.1 Sweatshop production in these factories was integrated in a global supply chain linking these workers with brands, retailers, and consumers around the world. This chapter provides a philosophical exploration of the nature and grounds of basic labour rights of the kind patently violated in Dakar. It also explores more expansive (or maximal) rights of workers to have real options to engage in work that avoids or minimises alienation, exploitation, and domination. The main philosophical goal of this chapter is to provide a defence of labour rights based on the idea of human dignity. Human dignity is widely considered to be central to human rights and labour law. Surprisingly, however, the content of this idea and its precise implications for labour rights remain unclear and underexplored. This chapter fills these gaps.

*  For comments and conversations, I thank Arash Abizadeh, Samuel Arnold, Ian Campbell, Hugh Collins, Rahel Jaeggi, Roberto Gargarella, Anca Gheaus, Alex Gourevitch, Ben Laurence, Gillian Lester, Virginia Mantouvalou, Julio Montero, Katharina Nieswandt, Kristi Olson, Martin O’Neill, Will Roberts, Julie Rose, Lucas Stanczyk, Lea Ypi, and participants in colloquia at Bath University, Concordia University, the conference ‘Philosophy and Social Science’ (Prague, 2016), Torcuato Di Tella University, University College London, and the University of Chicago. 1  Catherine Lu, ‘Worker Rights, Structured Vulnerabilities and Global Labor Justice’, unpublished manuscript. Two years after these events, workers’ rights were reported to be routinely violated. An investigation says that ‘[w]‌orkers report violations including physical assault, verbal abuse—​sometimes of a sexual nature—​forced overtime, denial of paid maternity leave, and failure to pay wages and bonuses on time or in full. Despite recent labour law reforms, many workers who try to form unions to address such abuses face threats, intimidation, dismissal, and sometimes physical assault at the hands of factory management or hired third parties.’ Mitu Datta, a garment factory worker in Chittagong, describes an attack on him and his wife outside the factory as follows: ‘Four people were holding me and beating me on the legs with bars and two people were beating her with iron bars. She was beaten on her head and on her back. Her arms were severely injured and bleeding. Bones of one of her fingers were broken. She had to get 14 stitches on her head. When they were beating up Mira, they were saying “You want to do unions activities? Then we will shower you with blood”.’ Human Rights Watch, ‘Bangladesh: 2 Years After Rana Plaza, Workers Denied Rights’ (22 April 2015)  accessed 14 December 2017. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 4 © Pablo Gilabert 2018. Published 2018 by Oxford University Press.

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I offer an interpretation of the idea of human dignity, and explain how it helps to provide a compelling account of labour rights. According to the dignitarian approach, as I articulate it here, we have reason to organise social life in such a way that we respond appropriately to the valuable features of human beings that give rise to their dignity. That dignity is a deontic status in accordance with which people are owed certain forms of respect and concern. The relevant forms of respect and concern are stated by various norms, including human rights and requirements of social justice. These dignitarian norms can be articulated as specifying an ideal of solidaristic empowerment according to which we should support everyone’s pursuit of a decent and flourishing life by affirming both negative duties not to destroy or block their valuable human capacities and positive duties to protect and facilitate their development and exercise. Labour rights, both basic and maximal, can be seen as norms that provide an appropriate specification of the dignitarian ideal of solidaristic empowerment in the domain of working practices. In a recent article, I identified three sets of labour rights and showed how they support five important human interests.2 I also suggested that these interests and rights link up to the ideal of human dignity. However, that connection was not fully worked out. In this chapter I explore that connection in a systematic fashion by developing the claim that there is a significant connection between catering for workers’ important human interests and responding appropriately to their human dignity. Furthermore, this chapter focuses not only on basic rights that are relevant for a minimally good or decent life, but also on more expansive rights to access the conditions of a flourishing life. So my exploration of labour rights potentially goes beyond what are often regarded as human rights.

2.  Basic Labour Rights and Human Dignity (a) Basic labour rights and human interests What are labour rights? It is not easy to give a canonical statement of them. There are several reasons for this. First, labour rights can be moral, legal, and/​or political. We should not assume, for example, that the best way to articulate them is always through legal codes. Although legal implementation is often crucial,3 sometimes it is infeasible or undesirable.4 Secondly, rights can be stated at different levels of abstraction. It is helpful to distinguish between more general and core normative ideas and more specific requirements that implement those ideas in certain social and historical contexts. The boundaries here are not precise. For example, should the normative ideas presuppose the existence of a modern industrialised economy, and if so, should we assume that it is a capitalist one? Even within

2  Pablo Gilabert, ‘Labor Human Rights and Human Dignity’ (2016) 42 Philosophy and Social Criticism 171. I use ‘support’ as an umbrella term comprising the standard triad of respect, protection, and fulfilment. Also, I use ‘labour’ and ‘work’ interchangeably. 3  One reason for this is that corporations are unlikely to comply with self-​imposed, non-​legally binding regulations protecting workers—​Richard Locke, The Promise and Limits of Private Power: Promoting Labor Standards in the Global Economy (CUP 2013). Philip Alston reports that the International Organisation of Employers has opposed moving beyond voluntary codes of conduct or introducing independent monitoring of labour standards. Philip Alston, ‘Labour Rights as Human Rights: The Not So Happy State of the Art’ in Alston (ed), Labour Rights as Human Rights (OUP 2005) 22. See further Simon Deakin, ‘The Contribution of Labour Law to Economic and Human Development’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011). 4  On these difficulties and on the significance of mechanisms different from legal codes, see Davidov and Langille (n 3) chs 15–​18. On the historical and geographical diversity of labour law, see Henry Arthurs, ‘Labour Law After Labour’ in Davidov and Langille (n 3) 13–​29; and Alain Supiot, Le droit du travail (5th edn, Presses Universitaires de France 2011).

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capitalism, there are important differences between the organisation of production that existed around the middle of the twentieth century and the forms that capitalism displays today (with, for example, intense financialisation and globalisation, growing inequality of income and wealth, labour contracts and jobs that are becoming increasingly precarious, and decision-​making structures and career paths within firms that are more complex and flexible).5 Finally, a third complication concerns the ambitiousness of the normative ideals about how to arrange labour conditions. For example, we could focus on human rights understood as the most urgent and basic requirements of decent labour, or we could focus on more ambitious and less urgent requirements of social justice about opportunities for flourishing at work. In this chapter, I will focus on philosophical issues about the normativity of labour rights. I will, however, pay attention to the significance of my theoretical arguments for legal and political contexts. I understand labour rights as primarily moral requirements which hold independently of their effective legal or political recognition and implementation, but recognise that such a recognition and implementation is often, in modern contexts, a key part of what they require. To further narrow the scope of my discussion, I will concentrate on formulations of rights that are either relevant within a contemporary capitalist economy or can be seen as prompting discussion about social change pointing beyond capitalism. Finally, I will focus on both basic and non-​basic labour rights. I start in this section with the former, turning to maximal labour rights in Section 3. Basic labour rights target support for decent work. Important examples are the labour human rights enshrined in Articles 23–​24 of the Universal Declaration of Human Rights and in Articles 6–​9 of the International Covenant on Economic, Social and Cultural Rights. Three types of such rights are the following: (a) rights regarding access to work (including, for example, opportunities for employment, free choice of employment, non-​discrimination in hiring, and some security in holding jobs); (b) rights regarding decent conditions at work (for example, adequate remuneration, equal pay for equal work, safe and healthy conditions, rest and holidays); (c) rights to form and join unions (and to strike). These rights are practically salient around the world. The catastrophe in Dakar mentioned earlier involves problems regarding all three. Massive unemployment in Europe and worldwide human trafficking for sexual exploitation engage (a). Current campaigns in the US and Canada to increase the minimum wage link up to (b). And, everywhere, labour activists are trying to explore new ways to organise workers in precarious and flexible positions as well as maintain, regain, or expand their base in large corporations. Labour rights can be given a first defence by showing that their fulfilment supports people in the satisfaction of important human interests. We can deploy this justificatory strategy by addressing three questions. The first is ‘Why is work valuable?’ Answering this question helps us defend rights of type (a). The significance of access to work is revealed

5 On the distinction between abstract and specific rights, see Pablo Gilabert, ‘Humanist and Political Perspectives on Human Rights’ (2011) 39 Political Theory 439. Another debatable issue concerns the very definition of work. I use here a fairly ecumenical definition according to which work is an intentional activity of production of goods or services that can satisfy needs or desires. I defend this definition and explore in more detail the issue of the relation between more abstract and more specific labour human rights in Gilabert (n 2). For difficulties regarding the specificity of these rights see Hugh Collins, ‘Theories of Rights as Justification of Labour Law’ in Davidov and Langille (n 3) 143–​4.

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once we identify important human interests in certain goods which work can deliver. The following seems to me a plausible list.6 I1 Consumption goods: consumption goods and services securing (at least) subsistence. I2 Self-​development: development and exercise of productive abilities. I3 Socialising: socialising with other persons in shared activities. I4 Contribution: contribution to the well-​being of others by helping produce goods and services that satisfy their needs or desires. I5 Self-​esteem and self-​respect: sustaining one’s self-​esteem and self-​respect. The goods tracked by I1 are obviously crucial. Without access to subsistence goods we cannot survive, and carrying out most of our plans involves using consumption goods of various sorts. The goods tracked by I5 are also crucial, as we can hardly pursue any project without taking ourselves to be worthy of the well-​being it might bring about. I5 relates to the other interests in complex ways. Its satisfaction is partly a function of the satisfaction of the other interests, as we often develop a sense of self-​esteem and self-​respect as a result of succeeding in tasks delivering the goods tracked by I1–​I4, and, in reverse, when we have self-​esteem and self-​respect we develop greater willpower to engage in the activities and relationships that cater for those interests. Interests I2–​I4 also strike me as quite important. Part of their importance consists in their instrumental significance for achieving I5. But they have independent significance as well. We can affect our surrounding environment through productive activities that engage our imagination, creativity, perseverance, and other physical, emotional, and intellectual skills. Developing and exercising such capacities involves achievements which are often important sources of satisfaction for us. We are also social creatures for whom relationships with others are central to our well-​being. One reason some jobs are undesirable is that they involve intense isolation, or toxic interpersonal relationships (including harassment, cut-​throat competition, backbiting, and so on).7 Finally, concern for others also surfaces if we consider the importance of the fact that our productive activities generate goods that meet their needs or desires. Sometimes we choose a job precisely because it offers a significant opportunity to use our capacities to increase the well-​being of others besides our own. Doctors in public health-​care facilities provide a telling example.8 6  Gilabert (n 2) 178–​80 (including references). See also Virginia Mantouvalou (ed), The Right to Work (Hart 2015). The Supreme Court of Canada affirmed that employment gives workers ‘a means of financial support and, as importantly, a contributory role in society’, as well as a sense of ‘identity, self-​worth, and emotional well-​being’. Reference Re Public Service Employee Relations Act (Alta) [1987] 1 SCR 313, [91], Dickson CJC dissenting; affirmed Health Services and Support—​Facilities Subsector Bargaining Assn v British Columbia, 2007 SCC 27, [2007] 2 SCR 39 cited in Arthurs (n 4) 20. 7  On the predicament of workers in precarious jobs, see Gabriel Thompson, ‘The Workers Who Bring You Black Friday’, The Nation (26 November 2013) accessed 13 December 2017. On the harsh conditions for workers in large factories in China, see Charles Duhigg and David Barboza, ‘In China, Human Costs are Built into an iPad’, New York Times (25 January 2012) accessed 13 December 2017. Psychological harm is experienced not only by blue-​collar workers in sweatshops but also by white-​collar workers in organisations imposing a toxic social environment. Eg Amazon uses the ‘Anytime Feedback Tool, . . . [a]‌widget in the company directory that allows employees to send praise or criticism about colleagues to management. (While bosses know who sends the comments, their identities are not typically shared with the subjects of the remarks.) Because team members are ranked, and those at the bottom eliminated every year, it is in everyone’s interest to outperform everyone else.’ This generates ‘a river of intrigue and scheming’—​ Jodi Kanto and David Streitfeld, ‘Inside Amazon: Wrestling Big Ideas in a Bruising Workplace’, New York Times (15 August 2015) accessed 13 December 2017. 8  Dr Mastracci, who left a top US hospital to work in a public hospital in the UK, explains her motives as follows: ‘I wanted to work in the NHS because it is a publicly funded and provided healthcare system. To me, access

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It could be objected that work is not necessary for satisfying I1–​I5. But in most contemporary societies not enough of the attributes tracked by I1–​I5 are likely to be accessible for most people independently of work. Even great transformations (such as a universal basic income) would likely involve a society in which work catering for these interests still occurs. This would happen through formal employment that gives workers better conditions (including greater satisfaction of I1–​I5 than is currently available) or through care work at home or in the community (or other working activities falling outside the standard labour market). Work plays a crucial role in accessing the five sets of goods mentioned which cannot be fully substituted by other mechanisms at reasonable cost for most people in (at least) contemporary circumstances.9 The second question is ‘What are the features that work should have if it is to be valuable in the ways mentioned?’ By answering this question, we provide an account of the importance of rights of type (b). They support access to work that delivers on interests I1–​I5. Decent work would thus provide adequate remuneration, be devoid of harassment, furnish opportunities for advancement and development of skills, etc. Some interests other than I1–​I5 will also be relevant. Thus, to justify limitations on working hours and vacations (with pay if needed to afford them), we can also invoke important interests to be able to participate in the political and cultural life of one’s society, and to cultivate personal relationships such as family and friendship.10 The third question is ‘What do workers need to ensure that their labour conditions will be decent?’ Answering this question helps us defend labour rights of type (c). Social science and historical experience support the claim that workers are far less secure in the enjoyment of their rights of types (a) and (b) if they do not boost their bargaining power in their negotiations with employers and their capacity to affect the broader political process of society. Unionisation rights, and other associational and political rights, increase workers’ clout. This is an extremely important instrumental argument to accept rights of type (c). Unless they have rare and highly demanded skills, isolated individual workers are very vulnerable in the labour market, and have much less power than capitalists to influence the political processes leading to economic legislation that affects them. In addition, it is intrinsically important that workers be able to shape the social process structuring their working conditions as active agents who are protagonists in their own life stories rather than mere recipients of more powerful agents’ designs (however benevolent they turn out to be). Workers need to be able to act collectively. Some workers might complain that they should not be obliged to join a union, or pay fees to support it. An issue here is whether the liberty of these workers is unduly limited. One response is that there is no limitation because there is no liberty to choose whether to support a union. Another response is that there is a limitation, but that the liberty limited is not important. Yet another response is that although an important liberty is limited, the limitation is all things considered justified because it is to health care is a fundamental human right. Everyone in the world should have access to it. . . . I have a great deal of respect for the NHS and the way it delivers care to every member of society—​all walks of life. . . . [H]‌ere I have treated everyone from homeless people to celebrities. I like the fact that the NHS has guiding principles and values—​almost a moral compass—​and is a fair system, where treatment is on the basis of need, not ability to pay . . . I love this system because there is a general feeling of caring. Other places may have nicely appointed rooms and a great deal of resources, but here that kind of compassion is integral to the success of health care.’ Tara Mastracci, ‘Why I left the US to work in the NHS: compassion is part of the job’, The Guardian (10 February 2016)

accessed 13 December 2017. 9  Gilabert (n 2) 183–​5. 10  We should also acknowledge the good of free, discretionary time—​which could be invested in or out of work. See Julie Rose, Free Time (Princeton University Press 2016).

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necessary for, or strongly contributory to, the protection of workers’ rights (including other liberties, or their freedom overall). It is worth exploring each of these possible responses. I find the last to be the most promising. Normative considerations often make conflicting demands in practice. In contemporary societies, honouring an individual liberty not to associate is in tension with the fulfilment of workers’ right to access just working conditions. Given deep structural inequalities with capitalists and standard collective action problems and free-​riding, workers’ rights can realistically be enjoyed in a reliable way only if collective agents like unions are set up and sustained to defend them.11

(b) Labour rights, human dignity, and solidaristic empowerment Although illuminating and appealing as far as it goes, reference to human interests is not enough to provide a robust defence of labour rights. We need more to support a claim that the agents who can affect workers’ access to the goods catering for those interests owe them support in gaining and maintaining this access. There is a logical gap between interests and rights. Moving from the former to the latter seems to involve a categorial leap from the evaluative to the deontic. To bridge this gap, we need to mobilise a notion that makes contact with both ends of the gap. It must, like rights, be deontic (which here I understand as regarding what people ought morally to do); and it must, like interests, be evaluative (which here I understand as regarding what people have reason to appreciate, or to want as contributory to their well-​being). I will argue that the important idea of human dignity provides a bridging notion of the kind we need. The idea of human dignity already features prominently in human rights discourse, both as a general basis for human rights and in the articulation of specific rights. For example, the Preamble to the Universal Declaration refers to the ‘inherent dignity . . . of all the members of the human family’ and expresses ‘faith . . . in the dignity and worth of the human person’, while its Article 1 asserts that ‘[a]‌ll human beings are born free and equal in dignity and rights’ and that they ‘are endowed with reason and conscience and should act toward one another in a spirit of brotherhood’. The Preambles to both Covenants (the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights) assert that human rights ‘derive from the inherent dignity of the human person’. The Universal Declaration also articulates specific rights on dignitarian terms. Thus, its Article 22 presents ‘economic, social and cultural rights [which include labour rights] as indispensable for [persons’] dignity and the free development of [their] personality’. I have developed elsewhere an account of the content and significance of the idea of human dignity.12 Let me briefly mention some points of this account that are relevant for the purposes of this chapter, and then proceed to explain how they help us to link interests and rights, both generally and in the case of labour rights. I start by presenting five conceptual components of human dignity. The first three are status-​dignity, condition-​dignity, and dignitarian norms. Status-​dignity is a normative status that people have in accordance with which certain forms of respect and concern are owed

11  The rights to strike and collective negotiation can be seen as ‘individual rights whose exercise is collective’—​ Supiot (n 4) 82–​3, 95. Importantly, workers also need to defend their rights vis-​à-​vis the state (either as an employer or when it fails to regulate the economy in supportive ways). 12  Pablo Gilabert, ‘Human Rights, Human Dignity, and Power’ in Rowan Cruft, S Matthew Liao, and Massimo Renzo (eds), Philosophical Foundations of Human Rights (OUP 2015); Pablo Gilabert, Human Dignity and Human Rights (OUP forthcoming).

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to them. The specific forms of concern and respect are specified by the dignitarian norms, of which human rights are a paradigmatic example. Status-​dignity is to be distinguished from condition-​dignity, which marks states of affairs in which dignitarian norms are fulfilled. The distinction is important if we are to avoid contradiction. It is sometimes said that because they have human dignity, people may not be enslaved. It is also said that when they are enslaved, people’s dignity is destroyed. Some critics use examples like this to charge dignitarian talk of incoherence.13 But the alleged incoherence dissolves if we use the distinction between status-​and condition-​dignity. Slaves’ status-​dignity is independent of whether it is recognised or honoured by any convention or practice. As a moral status it remains all along. It is because of that that slaves are morally entitled to resist oppression, and slave-​owners are required to give it up. What slaves lack is condition-​dignity, the situation in which dignitarian norms prohibiting slavery are recognised and honoured, which is precisely what the work of justice must bring about. A fourth dignitarian notion is the basis of dignity, which is used to refer to the valuable features in virtue of which human individuals are justifiably said to have status-​dignity (independently of their class, race, nationality, and other conventional or normatively irrelevant, or less relevant, features). Prominent in an account of the basis of human dignity are human beings’ valuable capacities, such as their reason, conscience, and the ability to act in a spirit of solidarity (paraphrasing from Article 1 of the Universal Declaration). Finally, the circumstances of dignity concern the domain of situations in which the fulfilment of dignitarian norms is both necessary—​in the sense of morally called for—​and possible—​in the sense of feasible to fulfil. Typical ingredients of the circumstances of dignity are certain problematic and hopeful features of people in certain contexts. On the one hand, they include particular difficulties and vulnerabilities springing from material scarcity, physical and psychological frailties, and certain troublesome tendencies (such as greed, or insufficient readiness to help). On the other hand, they also include noble features (such as the valuable human capacities forming the basis of dignity) and prospects for their feasible deployment to resolve social conflicts and deficiencies regarding the enactment of dignitarian concern and respect. Dignitarian norms articulate how people should deal with the circumstances of dignity in various situations. The latter are thus significant for articulating the former as both feasible and normatively desirable. I also propose that we develop a substantive articulation of the idea of human dignity in terms of the ideal of solidaristic empowerment: Solidaristic Empowerment: we should support people in their pursuit of a decent and flourishing life by fulfilling both negative duties not to destroy or block their valuable human capacities and positive duties to protect and facilitate their development and exercise.14

To act in a ‘spirit of brotherhood’ (Universal Declaration, Article 1)  towards those who have status-​dignity, we should respond to the significance of what gives rise to that dignity. Whether the valuable human capacities in the basis of dignity are maintained, developed, or exercised by their holders partly depends on whether other people treat them in respectful and helpful ways or in harmful or neglectful ways. Solidaristic empowerment calls for readiness to support the human development of other people. According to the ideal of Solidaristic Empowerment, the appropriate response to the dignity of human beings involves not only negative duties of respect (to avoid harm), but 13  Steven Pinker, ‘The Stupidity of Dignity’ (2008) 238 New Republic 28. 14  I  do not claim that every requirement of respect or concern for dignity must be construed in terms of solidaristic empowerment.

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also positive duties of concern (to protect and aid). The valuable capacities in the basis of dignity that ground the former also ground the latter. If the fact that a person is capable of self-​determination gives you reason not to dominate them, does it not also give you reason to protect them when others try to dominate them? If a person’s capacities to pursue a life including love, friendship, knowledge, productive work, etc gives you reason not to block their pursuit of those goods, do they not also give you reason to make such pursuit more likely to succeed? (Notice that I am not saying that negative and positive duties have equal weight, but that both feature in the appropriate responses to what is valuable in people.) Of course, although solidaristic empowerment is a universalist ideal involving, in principle, everyone (both as givers and receivers of human solidarity), the precise duties and rights that would specify this general normative project depend on looking at various contexts. We will have to identify specific duties for individuals, corporations, states, international organisations, and so on. In each case, we would consider the interests of everyone affected, and articulate requirements that are feasible to fulfil at reasonable costs to all the agents involved (including both duty-​bearers and rightholders). The task is to develop the feasible social arrangements that would provide the most reasonable implementation of the ideal in the relevant contexts. When we seek to answer the question ‘Why do people have rights?’ it is illuminating to refer to people’s dignity, and to the valuable capacities that give rise to it. But when we do so, we can also find a link to the important interests that people have. As it turns out, people have important interests in being able to develop, maintain, and exercise those capacities. To articulate this line of argument involving a link between capacities, dignity, interests, and rights, I propose the following principle: Bridge Principle: when human individuals have dignity, they have the deontic status of being owed (reasonable and feasible) support by every agent who can affect the fulfilment of their interests in being able to develop, maintain, and exercise the human capacities that give rise to that dignity. The features in the basis of dignity simultaneously ground status-​dignity, certain interests, and the rights to support regarding those interests.15

The Bridge Principle links certain important interests with rights via dignity. The thoughts crystallised in this principle can be reconstructed in terms of a sequence linking the following points: • recognising and fulfilling rights (generally); • responding appropriately to people’s dignity (as status-​dignity); • supporting people’s valuable capacities at the basis of their dignity; • supporting people’s interests in maintaining, developing, and exercising these capacities; • recognising and fulfilling specific rights that support these interests and capacities in various relevant contexts (ie some dignitarian norms the fulfilment of which constitutes condition-​dignity in certain circumstances of dignity). The general stance we adopt when we recognise and fulfil rights can be explained by saying that it constitutes an appropriate response to people’s status-​dignity. That response can be

15  Notice that this principle does not claim that no entitlement can be justified unless it is based on the interests regarding the support for the capacities grounding the dignity of the entitlement’s bearer. There may be other sources of entitlement. My focus here is to explain how justifications of entitlements that invoke interests could succeed. This caveat also applies to the Schema of Justification.

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articulated in terms of the task of supporting the valuable capacities in virtue of which people have status-​dignity. Such support, in turn, can be enacted by catering for the interests people have in maintaining, developing, and exercising these capacities. Such obligatory support can finally be articulated in terms of specific rights and duties in various contexts. Those requirements specify the general stance mentioned at the outset; they are dignitarian norms, the fulfilment of which would give people the condition-​dignity their status-​dignity calls for. Now, by deploying the Bridge Principle, we can provide the additional argument needed for a robust case for labour rights. We can do so by linking interests I1–​I5 (and other relevant interests) to the important human capacities that ground people’s status-​dignity. The strictures of the proposed dignitarian justification of rights can be stated, in their most general form, through the following Schema of Justification: Schema of Justification: rights are justified if, and to the extent that, their fulfilment (through certain institutions and practices) is either necessary for, or strongly contributes to, the feasible and reasonable support for certain important human interests regarding the existence, development, and exercise of certain valuable human capacities—​the ones grounding human dignity.

Specifically, the robust defence of labour rights requires identifying the institutions and practices, the human interests, and the human capacities stated in this schema as they concern the life of workers. It involves showing that labour rights are indeed dignitarian norms, ie that their fulfilment is either necessary for, or strongly contributory to, the feasible and reasonable support for important human interests linked to the valuable human capacities of workers. It is beyond the scope of this chapter to provide a detailed demonstration of how each putative labour right is justified. But I do want to give the reader a sense of why the proposed explanatory strategy is worthwhile. The appeal to human dignity and solidaristic empowerment are fruitful for the defence of labour rights (as well as other rights) in at least four important ways. The first concerns the deontic strengthening of the justification of rights in terms of human interests. By drawing on dignity, we can more easily move from interests to rights, from the good to the obligatory. The key idea is that since interests I1–​I5 are linked to human capacities that give rise to status-​dignity, responding to status-​dignity as solidaristic empowerment requires would call for taking steps to support the interests people have regarding the maintenance, development, and exercise of their capacities. The satisfaction of I1 is evidently linked to all the capacity-​related interests, as subsistence and access to consumption goods is a precondition for engaging in most projects that fulfil those interests. Significantly, the dignitarian strategy would boost the case for rights supporting I2–​I4. Amongst the most important human capacities are the capacities for creative production in cooperation with others, and to act to further the well-​being of others. Arranging work in ways that cater for I2–​I4 would support people’s interests in developing and exercising those capacities. I5, in turn, is dependent in part on people’s capacity for self-​appraisal on prudential and moral grounds. Since some of these appraisals target people’s working activities, when labour rights are fulfilled, people’s capacity for self-​appraisal is to that extent positively engaged. These points boost the case for rights of types (a)  and (b). I  will say something about (c) at the end of this section. Of course, much more should be said to articulate the palette of specific labour rights in various social contexts. But the comments just made should be enough to give the reader a sense of how the deontic boosting of the interests-​based arguments would proceed. If we do not support the satisfaction of certain important human interests (when we can do so at reasonable cost) it is not just those interests that are set back. We are also failing to

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enact proper respect and concern for the persons who have those interests. The interests are linked to the capacities that give rise to our duty to enact respect and concern for these persons to begin with. We cannot enact respect and concern and neglect the interests. Secondly, human dignity helps us to account for the universality of some rights. This is so because human dignity is a universal status that all human beings possess independently of their position within any conventional social framework. When we construe labour rights in terms of the support for important human capacities, we avoid a parochial focus limited to the ‘near and dear’. Every human being who works or can work becomes salient and deserves our ethical, political, and sometimes legal attention. In the current context of economic globalisation, the dignitarian approach helps us to adopt an appropriately universalist perspective.16 We can thus illuminate our duties towards all vulnerable workers, including sweatshop workers in distant lands and migrant workers on our shores (who are often deprived of some standard protections granted to non-​migrant workers). Thirdly, the dignitarian approach helps us to develop further our defence of certain specific rights. Thus, when we see how important self-​determination is for human dignity, we also see why it is so important that work be freely chosen rather than forced. Similarly, we understand more clearly why unionisation and other associational rights are significant. If workers are to be dynamic agents rather than mere beneficiaries of the largesse of the state, they need to be able to participate as active shapers in the social process leading to more just labour conditions for them. Finally, the fact that human dignity is a status that is equally held by all human persons also helps to criticise discrimination. The common idea of equal pay for equal work can thus gain further support. By appealing to a rather fundamental idea like dignity, we increase the depth and range of our reasoning about labour rights. This generates a fourth benefit of the dignitarian strategy, which is that it can help us to overcome a perceived crisis of labour law as too narrowly focused on conditions of bargaining between employers and employees in hierarchically organised and integrated large firms. Dignity arguably underpins much of the territory of social justice. It allows us to understand the normativity of labour rights, further articulate the duties correlative to them, and see how they relate to other important rights. Thus, human work, and the dignity-​relevant capacities and interests involved in it, should be treated in their full range of incarnations. We can render visible and address normatively, and legally when appropriate, not only power relations within standard capitalist firms, but also in the household where care work that secures social reproduction is performed, and in the more diffuse and flexible arrangements that proliferate in the current economic landscape (including occasional and precarious jobs, subcontracting, and so on). Furthermore, the focus on solidaristic empowerment allows us to address the full panoply of protections that a right deserves, often through linkage with other rights. Thus, associational rights boosting workers’ bargaining power to secure better working conditions should include more than the traditional rights to unionisation and strike (although these certainly remain crucial). They also include broader political rights to partake in political parties, local and regional governance entities, and various national and international social movements that address intersectional concerns regarding class, gender, race, ethnicity, and nationality. Besides the shaping of contractual terms, support for workers might require structural changes of property relations and cultural perceptions of what counts as work (so as to valorise care work, for example). We can also explore personal empowerment supporting

16  I would add this dignitarian dimension to the account of global justice given in Pablo Gilabert, From Global Poverty to Global Equality: A Philosophical Exploration (OUP 2012).

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workers’ human capacities to engage in meaningful productive activities, and more generally to live a decent or flourishing life. An example of this would be a renewed attention to education, and a view of its contents as preparing people to develop their multifarious human capacities.17 I conclude this section by emphasising the significance of the strengthening of specific labour rights provided by an account of human dignity when it comes to the rights to unionisation and other forms of associational power for workers. Understood as requiring solidaristic empowerment, dignity clearly links with the importance to workers of being able to stand tall in their negotiations with various agents that might significantly affect their labour conditions. When they are given chances to be protagonists in the shaping of their working conditions, workers’ capacities for practical judgement are given proper recognition. Furthermore, their ability to defend their rights in an inegalitarian economy are enhanced. There seems to be a correlation between unionisation and reduction of income inequality. Both have been in decline in many countries after the aggressive anti-​union policies imposed by the neoliberal push that began in the 1980s. An ideological view gained traction according to which ‘corporations are a natural feature of market economies, while unions are an alien intrusion’.18 But both are social constructions. They can and should be shaped on the basis of sound normative considerations that track workers’ empowerment. We should counter anti-​union policies and the legal rules that shape corporations in ways that unjustly disadvantage workers. Unions are only part of what workers need to boost their associational power and dignitarian standing in a capitalist society. Erik Wright has helpfully identified three sites or institutional contexts in which workers and capitalists may struggle and sometimes reach compromises, and he associates with each a specific form of associational power which workers would benefit from having and utilising.19 First, workers face capitalists within the sphere of exchange, notably in the labour market, to negotiate the terms of the labour contract (stating, for example, workers’ salary). They also encounter each other in the sphere of production, where many issues not codified in the labour contract arise regarding the control of production (such as the pace of work, the introduction of labour-​saving technology, technical division of labour, and decision-​making about daily workplace activities). Finally, workers, like capitalists, seek to influence governmental decisions that affect the overall shape of the economy and their specific standing within the two previous spheres. Policies regarding minimum wages, taxation and benefits, unemployment insurance, and funding

17 The idea of human dignity can (if properly developed) provide the deeper and more fruitful form of normativity that some labour lawyers (like Brian Langille, ‘Labour Law’s Theory of Justice’ in Davidov and Langille (n 3)) see as necessary to face changing conditions of labour in our contemporary world. The perceived crisis concerns the weakening of the ‘basic pillars that supported labour law and enabled it to flourish after the Second World War—​the nation state, the vertically integrated firm, the standard employment relationship, the male breadwinner and female housewife gender contract, industrial unions, and social democracy’—​Judy Fudge, ‘Labour as a “Fictive Commodity”: Radically Reconceptualizing Labour Law’ in Davidov and Langille (n 3) 120. If we adopt the deep and broad dignitarian perspective, we can illuminate what is normatively significant in work that, eg, proceeds in a globalised economy, is not framed by a contract of employment, is affected by institutional background conditions outside contract-​setting, can be politically supported by novel organisations and movements, and might even flourish in new social structures that are not capitalist. 18 John Quiggin, ‘Predistribution:  Wages and Unions’, Crooked Timber Blog (28 April 2016) accessed 14 December 2017. Corporations (and their power structure) are social and legal constructs that impose conditions on the bargaining between workers and employers at the point of the labour contract—​Elizabeth Anderson, ‘Equality and Freedom in the Workplace: Recovering Republican Insights’ (2015) 31 Social Philosophy and Policy 48. 19 Erik Wright, ‘Working Class Power, Capitalist Class  Interests, and Class  Compromise’ in Wright, Understanding Class (Verso 2015).

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for training, are examples. Key forms of workers’ associational power corresponding to these three spheres are unions, works councils, and political parties. Wright also helpfully distinguishes between structural and associational power. The former is the relative power that agents have by virtue of their class position within a class system. Workers have some power as owners of their labour force. They may not be put to work without their formal consent. Capitalists in turn have power as owners and controllers of the means of production. Capitalists can bargain with significant clout with workers. Since workers lack means of subsistence they must seek employment with capitalists, who normally want to limit labour costs like wages in order to maximise profit or merely to stay afloat in the face of competition.20 On the other hand, both workers and capitalists can form associations to increase their relative power. In the case of workers, the generation of associational power is very important given that their structural power as individuals is comparatively weak. Through unions, works councils, and political parties, workers can act collectively and elicit far more convenient arrangements in their conflicts and negotiations with capitalists. Short of overthrowing the capitalist class system altogether, workers’ best hope for increasing their autonomy and well-​being lies in developing strong collective agencies. Such collective agencies also enable them to pursue more ambitious trajectories of transformation leading to a post-​capitalist society. The relation between increases in unionisation and other forms of workers’ associational power and the interests of capitalists is complex. On the one hand, there is an obvious conflict, as increasingly powerful workers are able to limit capitalists’ decision-​making power over the organisation of production, wages, hiring and firing, and other decisive features of the economic process. On the other hand, as Erik Wright has also argued, if the associational power of workers grows beyond a certain point, it might actually function in a way that benefits capitalists. Collective workers’ associations can solve a collective action problem for capitalists, ensuring that they all pay their workers decent wages that boost consumption and with it capitalists’ profits. Furthermore, workers’ associations may discipline workers by limiting protests and disruptions, thus generating a predictable and stable environment for capitalists’ investment and profit.21

3.  Developing the Dignitarian Account (a) Basic and maximal labour rights Contributing to the well-​being of others through work is something people find important. ‘[S]‌urveys on “happiness” seem to suggest that absence of opportunities to make oneself useful correlates strongly with a strong feeling of unhappiness.’22 But the endorsement of the idea of social contribution can unfortunately be used ideologically, to manipulate people into accepting jobs which do not fulfil their labour rights. ‘Not every kind of work is better than being idle, and not every kind of work dignifies the worker.’23 To properly enact 20  These facts underpin the structural domination of workers in a capitalist society. For how we can make sense of structural domination without ascribing agency to structures, see Alex Gourevitch, ‘Labor Republicanism and the Transformation of Work’ (2013) 41 Political Theory 591, 603–​7. 21  Wright also notes that if the associational power of workers along the three dimensions extends towards the limit of democratic socialism (in which workers are able to control the deployment of means of production), then the synergy between the interests of capitalists and the expansion of workers’ power ends—​Wright (n 19) 218ff. 22  Claus Offe, ‘Basic Income and the Labor Contract’ (2009) 1 Analyse & Kritik 49, 63. 23  Guy Mundlak, ‘The Right to Work—​The Value of Work’ in Daphne Barak-​Erez and Aeyal M Gross (eds), Exploring Social Rights (Hart 2007) 351. We should be vigilant against manipulation of reference to goods related to interests I1–​I5 to discipline people into accepting undignified work.

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respect and concern towards workers’ dignity, work has to be at least decent. But, arguably, conditions of flourishing at work are also worth construing as rights, even if they are less urgent than the basic labour rights normally seen as parts of human rights doctrine (discussed briefly earlier). It would also be a form of ideology to brush aside calls for more than basic rights by saying that decent labour conditions are ‘enough’. Let us make a distinction between basic and maximal labour rights. Whereas the former focus on workers’ access to a decent life, the latter go further by tracking workers’ access to a flourishing life. Both rights can be articulated in terms of human dignity and solidaristic empowerment. The humanist ‘spirit of brotherhood’ and the rights ‘indispensable to [people’s] dignity and the free development of [their] personality’ mentioned in the Universal Declaration of Human Rights could embrace both. Whereas basic labour rights would require meeting thresholds of support for the human capacities of workers which are appropriately deemed as part of the minimum every society must grant its members, maximal labour rights would call for fuller responses to the dignity of people by supporting their full human development at work. The distinction between basic and maximal rights is at once intuitive and obscure in its details,24 and its development requires a separate discussion which I cannot provide here. One possibility is to say that basic justice tracks the conditions that must be in place for a social order to be legitimate. When those conditions are met, the members have reason to obey the order’s rules. But legitimacy is only a subset of what social justice requires. People may accept the authority of a social order while thinking that some of its rules are unjust and should be changed. Maximal justice could be seen as covering the further rules that the social order must generate if its structuring of the lives of its members is to be fully just besides legitimate. For example, basic justice might require that workers have access to freely chosen jobs that allow them to contribute to society, socialise in ways that are not humiliating, and meet their subsistence needs, while also having political rights to form workers’ associations and more broadly act as citizens. They could then use these rights to seek changes in the organisation of production that give them opportunities for more than decent work. While acknowledging that this distinction requires further exploration, I will focus in what follows on how the dignitarian approach might cover (part of) the territory of maximal justice regarding labour conditions.

(b) Dignity vs domination, alienation, and exploitation Human dignity is a resonant moral and political idea. It is recognised as one of three core ideas behind labour law. The other two ideas are that the inequality in bargaining power between workers and their employers should be compensated for and that labour is not a mere commodity.25 Interestingly, when developed through the substantive ideal of solidaristic empowerment, the dignitarian approach can capture the content, and explain the force, of these additional ideas. It is because they have status-​dignity and require condition-​dignity that workers should have stronger bargaining power and their capacities and activities should not be regarded in exclusively instrumental ways. But human dignity, and the two additional ideas, in fact call for more than decent labour conditions, as such conditions do not dissolve capitalist relations of production which typically generate unequal bargaining power and commodification of labour. We need to explore maximal labour rights that give 24  Stuart White, ‘Social Minimum’ in Stanford Encyclopedia of Philosophy (Metaphysics Research Lab, Stanford University 2015). 25  Langille (n 17) 104–​7.

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workers real opportunities to fully develop and exercise the capacities that give rise to their dignity. Injustices regarding work that involve avoidable failures to implement the ideal of solidaristic empowerment (and thus failure to enact proper respect and concern for workers’ dignity) include domination, alienation, and exploitation. We can briefly state these unjust conditions as follows, Domination: when workers are inappropriately subject to the will of others in the shaping of the terms on which they work (at the spheres of exchange, production, or in the broader political process). Alienation:  when workers’ ability to develop and exercise their valuable capacities at work is unduly limited. Exploitation: when the relative vulnerability of workers is unfairly taken advantage of by others for the latter’s (or some third party’s) benefit. Although basic labour rights call for the elimination of the most egregious injustices regarding domination, alienation, and exploitation, maximal labour rights are meant to offer workers opportunities to avoid these conditions altogether (or to avoid them as much as it is reasonably feasible). Domination is overcome to the extent that workers are able to shape the terms on which they work. This turns on the extent to which they are empowered in the three spheres of exchange, production, and broader politics. The issue of domination is procedural, concerning how decision-​making occurs in the organisation of work.26 The issue of alienation, in turn, concerns the meaningfulness of work. Meaningful work may itself include procedural dimensions (ie non-​domination is arguably part of non-​alienation), but goes further to capture the extent to which people’s capacities for creative production, socialisation, and social contribution are developed and exercised in working activities. The more workers can develop and exercise these capacities, the more they can avoid alienation in work. Finally, the issue of exploitation combines procedural and outcome-​oriented considerations about how asymmetrical power is exercised in productive processes. Exploitation is a use of asymmetric power in which the more powerful exploiting agents extract benefits from the less powerful exploited agents in wrongful ways. For reasons of space, in the remainder of this section I concentrate on clarifying this phenomenon. Some points relevant for alienation and domination will also be mentioned as I proceed. After all, the search for maximal justice at work should combine the three considerations. In general, exploitation involves an exchange or transfer between two individuals or collective agents, in which one gets more than the other. This may occur in a one-​off interaction or as part of a systematic pattern.27 In the case of the exploitation of workers in capitalist societies, the idea often is that workers are exploited by their capitalist employers when the former benefit the latter more than the latter benefit the former; when, for example, the

26  The experience of cooperatives illustrates this. Even though his salary is lower, a member of the cooperative Musicop in Spain declared that ‘we’re better off today, because we are empowered’. Another worker, a member of the cooperative firm Viome in Greece, declared: ‘We don’t want to hide it: above and beyond our own jobs and our families’ futures, this is about equality, democracy, the whole employer–​employee relationship . . . We’re working for each other. That’s the difference.’ Guardian Reporters, ‘Workers find strength in unity’, The Guardian Weekly (8–​14 May 2015) 1, 12–​15. 27  Here I disagree with a view of exploitation as necessarily involving a systematic relationship between exploiter and exploited. See Nicholas Vrousalis, ‘Exploitation, Vulnerability, and Social Domination’ (2013) 41 Philosophy & Public Affairs 131, 138. We can imagine one-​off interactions involving exploitation, as when A passes by B’s island and gets B to repair A’s ship (which takes strenuous work) by offering B, who is starving, some food (of which A has plenty).

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workers make through their work an economic contribution that carries more value than the value contained by the salary they receive from their employer. When used, as it often is, in a normatively loaded sense, the idea of exploitation is, in addition, assumed to code the exchange or transfer as (at least pro tanto) wrongful.28 This is captured, for example, by the common view of exploitation as involving an unfair taking of advantage of someone by another. Of course, not all forms of unequal exchange or transfer are wrong, or unfair. Arguably, it is not wrong for disabled people who cannot work to receive support from those who can and do. Thus, a normative account of exploitation must specify the additional conditions that make the exchange or transfer wrongful or unfair. To develop this normative account, it is important to pay attention to power. Typically, the exploiter has power over the exploited. A exploits B (in the normatively loaded sense—​ on which I focus from now on), when A extracts an unfair benefit from B by taking advantage of B’s weaker power position. To further understand the possible relations between power and exploitation, let us consider some cases. (a)

Wrongful advantage taking: Exploiter drives a hard bargain on Exploited, getting Exploited to work in ways that involve unfair benefitting of Exploiter (or some third party selected by Exploiter—​I presuppose this rider in future formulations) by Exploited. This is partly enabled by the fact that Exploited does not, while Exploiter does, have acceptable alternative options29 to the scheme put forward by Exploiter. This scheme is avoidable, in that a scheme involving fair reciprocity (or some other morally appropriate norm), or less violation of it, is feasible (ie Exploiter could agree to it and thus render it accessible for Exploited).

The foregoing is the basic case. Notice that it is parasitic on some account of ‘appropriate’ or ‘fair’ shares. I do not focus here on the issue of what is the correct normative baseline, and what I go on to say is compatible with various accounts of fair or appropriate shares in the benefits of production. More specific cases are developed by adding to (a) clauses about the causal and normative responsibilities of the relevant agents with respect to the circumstances involving asymmetry of power between them. Here are some examples: (b.1) Direct force and coercion: Exploiter makes it the case that Exploited has no acceptable alternative option to the scheme put forward by Exploiter. Exploiter can do this by eliminating alternatives altogether—​brute force—​or by threats that make them unacceptable to choose—​coercion. An instance is the relationship between a slave-​owner and a slave in the Antebellum American South. Slave-​traders had removed slaves from the territory in which alternative forms of life were available,

28  In what follows, I assume that the wrongness of exploitation holds pro tanto, so that it is possible that other normative considerations are stronger in some circumstances, and that we could have to conclude that, all things considered in those circumstances, exploitative acts may be carried out. Whether exploitation is wrong, and if so why, is one issue. What the relative weight of its condemnation is when it competes with other normative requirements, is a different question (which I am not addressing now). 29  The notion of ‘acceptable options’ as understood here is inherently relational. Exploitation often in fact takes place when the alternatives open to Exploited are absolutely bad (eg involving destitution). But it is possible that exploitation occurs when the alternatives are tolerable or acceptable in an absolute sense but unacceptable in a comparative sense. What is key to exploitation is, first, that Exploited could not rationally choose to go for the alternatives to the scheme offered by Exploiter (at least within some space of reasons, such as those concerning income and wealth—​I recognise that other reasons may weigh in and push in a different direction: eg Exploited may have reason to punish Exploiter for offering an exploitative deal, even if Exploited would be poorer as a result). A second key comparative feature of exploitation is that the alternatives to the exploitative scheme are worse for Exploited than they are for Exploiter.

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and slave-​owners threatened physical torment unless slaves worked as slave-​ owners demanded. (b.2) Indirect force and coercion: Exploiter contributes to a complex causal process that eventually makes it the case that Exploited has no acceptable alternative to the scheme put forward by Exploiter. This case differs from (b.1) because Exploiter does not directly threaten Exploited with unacceptable scenarios, but has been involved in a process that has the result that Exploited does not have acceptable alternatives. A typical historical example is the ‘enclosures’: the concerted efforts by some people to make others lose access to their (privately, or commonly, accessible) land, and as a result come to lack acceptable alternatives to working as wage labourers under the former. Another example is when capitalists push governments to eliminate unemployment benefits and other income-​security programmes that enable people rationally to choose not to work for them on the conditions the latter fancy. (c)

Contra-​solidaristic cooperation: Exploiter could help Exploited at reasonable cost, but chooses instead to take advantage of the relative weakness of Exploited to drive a hard bargain which leads to a division of the fruits of cooperation that is disproportionally beneficial to Exploiter. This case differs from (b) because in it Exploiter is directly or indirectly responsible for the fact that Exploited does not have acceptable alternatives through omission rather than through (actual or threatened) commission. Exploiter does not deprive Exploited of an otherwise available option, but fails to provide them with an otherwise non-​available option. Exploiter could generate the latter provision directly or indirectly, for example by offering Exploited a better deal within the economic relationship, or by acting to help change background circumstances that make Exploited’s bargaining power so weak. So we have again two sub-​cases (c.1) and (c.2) paralleling the cases (b.1) and (b.2). An example of (c.1) arises if we compare employers who choose to offer low salaries or other benefits to their workers (as is common in sweatshops or in precarious jobs) and others who choose to offer better deals. An example of (c.2) arises when we compare capitalists donating some of their wealth to fund political parties with anti-​union agendas and others who support political changes to strengthen the bargaining power of workers.

Marxist scholars sometimes say that exploitation occurs when workers are either coerced by their employers or forced by the circumstances to take up employment under the latter.30 These scenarios are covered by the categorisation introduced above. For example, (b.1) covers the case of the relation between slave-​owners and slaves (which is directly coercive). The case of capitalist exploitation is covered by a combination of (b.2) and (c): capitalists may not directly force or coerce workers to work, but they shape the circumstances faced by workers so that they have no good alternative to working under capitalists, and they fail to offer better terms at the points of hire, a better treatment at work, or support the creation of a better social environment in which workers’ power increases over time. How does power operate in these cases, exactly? The social power of Exploiter over Exploited is a function of their different abilities to (i) access valuable objects for themselves, 30  Jon Elster, An Introduction to Karl Marx (CUP 1986) 82–​3. Karl Marx talks about workers in capitalism as voluntarily taking up employment under capitalists while also being subject to the ‘silent compulsion of economic relations’, Marx, Capital I (new edn, Penguin 1990) 899 (see also 382).

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and (ii) make inaccessible or accessible those objects for the other. Often, these differences are largely the result of certain institutional structures. Thus, relations of production involve relations of effective power of people over productive resources (such as abilities to work and means of production—​external natural resources and technology—​used in work), and the inequalities in these powers go together with relations of subordination between people.31 When A has greater control than B over certain desirable resources, A can bargain with B from a position of superiority and get B to work to benefit A disproportionately. The injustices involved here, if there are any, would concern at least those power relations. The injustices might either concern the very existence of asymmetry in social power or its exploitative use. Some views of exploitation emphasise the former, while others highlight the latter.32 These views can be combined. We can call for the reduction of power differentials, and for a use of whatever differentials remain in which those involved enact proper concern and respect for others. This is what the dignitarian ideal of solidaristic empowerment would require. When we take advantage of the relative weakness of others for egotistic purposes, we are failing to respond appropriately to their status as agents with valuable capacities which they could develop and exercise to flourish on their own terms. I am presenting here exploitation as one case (among others) of wrongful use of asymmetric power, as involving an inappropriate instrumentalisation of relatively vulnerable people to benefit others. On this account: A exploits B when A instrumentalises B in a wrongful way, by using A’s superior power to get B to benefit A disproportionately (ie more than what fair reciprocity, or another relevant normative requirement, would require).33

I present this account as providing sufficient conditions for exploitation. I  do not make the stronger claim that these conditions are also necessary. The statement of the account also leaves it open what standard of fair or rightful shares is to be used as the baseline of comparison to identify wrongful treatment. Although other standards are of course possible, I endorse the Abilities/​Needs Principle ‘From each according to their abilities, to each according to their needs.’ This principle is in line with the dignitarian approach and the ideal of solidaristic empowerment in that it calls for schemes of production in which people exercise their capacities in ways that foster both their own and other people’s human development. 34

31  Gerald Cohen, Karl Marx’s Theory of History:  A Defence (7th printing and first expanded edn, Princeton University Press 2001) ch 3. For how capitalist relations of production relate to power of capitalists over workers (the ability of the former to get the latter to work for them through their control of means of production) see Vrousalis (n 27) 136–​7. 32  See, respectively, John Roemer, Egalitarian Perspectives (CUP 1986) and Vrousalis (n 27). For an appealingly broad view, see Robert Goodin, ‘Exploiting a Person and Exploiting a Situation’ in Andrew Reeve (ed), Modern Theories of Exploitation (Sage 1987). 33  In this account I focus on wrongful instrumentalisation for self-​advancement, but I do not deny that it is possible (even if it is atypical) that wrongful instrumentalisation is undertaken for the sake of someone else, so that A exploits B for the sake of C. The account could accordingly be revised to refer to the benefiting of A or some other person C. I should also note that A, B, C, etc can be either individuals or collectives. 34  Pablo Gilabert, ‘The Socialist Principle “From Each According to Their Abilities, to Each According to Their Needs’” (2015) 46 Journal of Social Philosophy 197. This account of fair reciprocity differs from other views. Eg it is different from the view that a worker is entitled to the totality of the value of what they produce. It also differs from the view that there is no exploitation, or wrongful unequal exchange, between two persons who are unequal in assets, have reached that inequality in a way that reflects their choices rather than their circumstances, and engage in an exchange in which the agent richer in assets offers a scheme to the poorer agent in which the former benefits from the work of the latter without doing as much in return.

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(c) The worry regarding neutrality It could be objected that a demanding view of labour rights that calls for the accessibility of work without domination, alienation, or exploitation flouts the liberal requirement of neutrality with respect to conceptions of the good.35 Six points are worth making in response. First, some labour rights can partly be defended by saying that their fulfilment is either necessary for or (more plausibly) strongly contributory to a robust development of the autonomous moral or/​and political agency which liberals praise.36 Two typical linkage arguments are these. First, economic practices have a formative effect on people’s political practices, so that domination in the former fosters dispositions that are at odds with autonomy in the latter. Secondly, concentration of power in the economy allows some individuals to use their greater economic power to tilt the political process in their favour (for example, by funding lobbying agencies, by spending money on the campaigns of politicians that favour their interests, by promising jobs to officials when they leave office, and by signalling that they will disinvest in the country if governments make decisions they dislike). It is also important to note that the neutrality requirement has the normative force it has partly because it reflects a substantive moral commitment to freedom, and explores what it requires in circumstances of great diversity of views about the good life. No normative position can be morally neutral all the way down. Secondly, I articulate the more ambitious and controversial requirements regarding non-​ alienating, non-​exploited, and non-​dominated work in terms of the generation of real options to engage in those kinds of work, not in terms of making work of that kind mandatory. Thirdly, no moral or political conception can be articulated in sufficient detail (ie make clear and determinate demands) without some potentially controversial commitments about the good. The liberties a principle of liberty would protect, or the opportunities a principle of equality of opportunity would foster, for example, cannot be identified or assessed without some sense of what goods would and should be rendered accessible through them.37 35  An important line of argument from John Rawls is that a theory of justice should not be based on a ‘thick’ theory of the good featuring a detailed account of what life plans individuals should choose. See Rawls, A Theory of Justice (rev edn, Harvard University Press 1999), section 68. An agreement on such a theory seems unlikely, is unnecessary, and should not be pursued. It is unlikely to arise because of the great diversity in individuals’ circumstances, abilities, and interests. It is unnecessary because principles of justice can use a thin theory of the good which identifies some goods that are fairly general and abstract and necessary for pursuing more specific and diverse goods. Building a reasonable agreement on these goods seems feasible. Finally, we should not make justice depend on a thick conception of the good that applies to everyone because we would in fact benefit (through division of labour) from situations in which people pursue different plans of life and we should respect people’s freedom to choose their specific plans of life. So long as these pursuits do not involve conflict with the principles of justice (which rely on the thin, not the thick, theory of the good), justice is not undermined. 36  Nien-​hê Hsieh, ‘Justice in Production’ (2008) 16 Journal of Political Philosophy 72; Samuel Arnold, ‘The Difference Principle at Work’ (2012) 20 Journal of Political Philosophy 94. These philosophers develop liberal egalitarian approaches to justice in production that eschew perfectionism. They also provide important discussions of the limits of Rawls’s views on the topic, while also developing certain Rawlsian insights (eg Arnold argues that access to work involving authority, responsibility, and complexity is a social primary good falling under Rawls’s difference principle). Rawls claimed, puzzlingly, both that ‘meaningful work in free association with others’ is important and that its ‘definition’ is not ‘a problem of justice’—​Rawls (n 35) 257–​8. Some liberals seem to avoid discussion of justice concerning work (partly) out of fear that this would involve perfectionist conceptions of justice based on thick conceptions of the good. 37  Hsieh mentions that ‘neutrality-​based arguments’ require that ‘citizens have a meaningful range of options from which to choose’—​Nien-​he Hsien, ‘Work’ in Gerald F Gaus and Fred D’Agostino (eds), Routledge Companion to Social and Political Philosophy (Routledge 2012) 759. But how can we decide what subset of the set of all the feasible arrangements of options counts as ‘meaningful’? It is hard to do this if our normative framework imposes on itself a complete evaluative lobotomy. It is better, I suggest, to be upfront about the evaluative importance of some candidates, while finding a way to introduce them as options rather than as unavoidable outcomes (and so reflecting as well reasonable concerns about personal and political liberty and pluralism).

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Fourthly, since the controversy about maximal labour rights will persist no matter what framework is introduced (the status quo also being controversial, of course), we need a fair, and ongoing, way to process it. Now, the social implementations of labour rights as I see it would be authorised and monitored through a democratic political system that gives everyone real opportunities to participate in their evaluation and improvement over time. To this recognition, we can add advocacy for a moral and political ethos of fallibilism, humility, and tolerance. Fifthly, work is somewhat special, in that any society that is not fully automated will to some extent and in some ways push its people to work. It is important that this pressure is accompanied with a real effort to make available forms of work that are justifiable to the people pushed to work. In such a justification, interests of the kind I mention in this chapter will be relevant. Finally, and interestingly, by linking talk of human interests to talk of human dignity we can underwrite and strengthen the points made earlier. The Bridge Principle discussed in Section 2(a) allows us to link workers’ interests in accessing the object of their labour rights with capacities that give rise to their deontic status-​dignity. The liberal concerns themselves reflect appreciation of agential capacities for autonomous judgement that are paramount in the basis of dignity. These capacities have great value and their exercise is crucial for the epistemic and legitimating process which, through political discourse and choice, should set the terms of labour practices. We can in fact identify a hierarchy within the normative space of dignity, with certain civil and political freedoms having priority over specific views of meaningful work.

4. Conclusion Dignity at work involves the treatment of people in accordance with the ideal of solidaristic empowerment as it pertains to their life as workers. This ideal requires that we generate feasible and reasonable social schemes to support each other as we pursue the development and exercise of our valuable capacities to produce in personally and socially beneficial ways. The spectrum of dignitarian justice goes from basic rights, to decent working conditions, to maximal rights to flourish in working practices that are free from domination, alienation, and exploitation.

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5 Human Development: A Way out of Labour Law’s Fly Bottle Brian Langille*

What is your aim in philosophy? To show the fly the way out of the fly-​bottle Ludwig Wittgenstein, Philosophical Investigations, 309

1. Introduction Several remarkable and unusual cases require our attention. These cases look like labour law cases—​their subject matter is people at work, there are employers and employees, unions, and contracts. Livelihoods and personal relations are at stake.1 Yet, despite the presence of these conventional labour law features, these cases stand out. This is because they are simply inconsistent with our conventional understanding of what labour law, as an understandable and distinct legal subject, actually is.2 But rather than view these cases as ‘mistakes’ the idea pursued here is that these remarkable cases both compel and inspire us to find a new understanding, a new narrative—​one that can account for the emancipated and, as a result, pragmatic vision of labour law which lies implicit within, and underwrites the approach taken in, these decisions. The object of this chapter is to offer a preliminary view of a narrative which can make sense of these remarkable decisions.3 We will begin our undertaking by presenting two such unusual cases: Robichaud v Canada (Robichaud)4 and United Steelworkers v Tim Hortons (Tim Hortons).5 We will then review the reasoning deployed in these cases and identify what marks them out as so remarkable. Next we seek to uncover the normative account that emboldens their pragmatic and emancipated approach. Our enquiry leads to some basic insights regarding the normative salience of substantive human freedom inspired by the works of Amartya Sen and Martha Nussbaum.6 To cultivate the liberating capacity of their ideas, we will review some of the most relevant operative concepts and then articulate those concepts in expressly labour law terms. Then we revisit Robichaud and Tim Hortons and find that they are best explained by our proposed *  This chapter is part of a project supported by a grant from the Social Sciences and Humanities Research Council of Canada. I would like to especially thank Scarlett Smith JD (2017, University of Toronto) for stellar assistance with the final draft. 1  This chapter uses the term labour law to encompass both labour and employment law—​ie both the regime concerning unions and collective bargaining as well as the regime concerning individual employers and employees. 2  See eg Brian Langille, ‘Labour Law’s Back Pages’ in Guy Davidov and Brian Langille (eds), The Boundaries and Frontiers of Labour Law (Hart 2006) 13; Brian Langille, ‘Labour Law’s Theory of Justice’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011). 3  The emancipated approach undertaken is extremely effective in advancing labour law’s conventional objectives of offering workers protection, but even further than that, it is malleable and thus able to adapt to a shifting empirical reality and thus capable of overcoming the challenges that labour law currently faces. 4  Robichaud v Canada [1987] 2 SCR 85. 5  United Steelworkers v Tim Hortons 2015 BCHRT 168. 6  eg Amartya Sen, Development as Freedom (OUP 1999); Martha Nussbaum, Creating Capabilities: The Human Development Approach (Harvard University Press 2011). Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 5 © David Cabrelli and Rebecca Zahn 2018. Published 2018 by Oxford University Press.

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normative account and thus offer cogent examples of how this new account can be, and has been, instantiated. To further explicate its utility, we will then review recent cases where the normative vision of human freedom is notably absent—​we focus on two in particular: Lian v J-​Crew7 and McCormick v Fasken Martineau DuMoulin LLP (Faskens).8 We see here that the conventional labour law narrative functions to oppress rather than advance labour law’s true objectives. To sustain the forward momentum of this chapter, we will reconstruct Lian and Faskens to demonstrate how similar cases could be decided in the future in ways that align with the human freedom framework that this chapter seeks to set in motion.

2.  The Curious Cases of Robichaud and Tim Hortons In Robichaud v Canada a supervisor had sexually harassed an employee, Ms Robichaud. The supervisor had clearly violated Ms Robichaud’s statutorily protected right to be free from sexual harassment at work. But what of the Department of National Defense who employed both the harassing supervisor and the victim employee? It is not surprising that the Supreme Court of Canada (SCC) held the employer liable as well. But the reasoning is surprising, and it deserves our attention. Given that there was no doubt that the supervisor had violated the legislation in question by sexually harassing Ms Robichaud, the question the court posed was whether ‘such actions can be attributed to the employer’. Conventional labour law rhetoric has been known to compel a court to focus on the various theories supporting the liability of an ‘employer’ for the acts of its ‘employees’ during the ‘course of employment’, such as vicarious liability in tort and strict liability in quasi-​criminal context.9 Such a focus was adopted by the Federal Court of Appeal in this case prior to its review by the SCC. It is worth pointing out that the result of this was that the employer was not held to be liable by that court.10 Unexpectedly, and wonderfully, the SCC took a very different approach. The court stated that ‘the place to start is necessarily the Act, the words of which, like those of other statutes, must be read in light of its nature and purpose’.11 The statutory purpose, clearly articulated in the text, and condensed by the court, was ‘ “to give effect” to the principle of equal opportunity for individuals by eradicating invidious discrimination’, not merely by punishing offenders, but also by ‘redressing socially undesirable conditions’.12 The court rejected the arguments advocating the liability theories previously mentioned, noting that a fault-​based orientation would be ‘completely beside the point’.13 The court also dismissed the employer’s assertion that the impugned act must have been committed ‘in the course of employment’, concluding that such a limitation, having developed in the law of tort, ‘cannot meaningfully be applied to the present statutory scheme’.14 Having disposed of both vicarious liability and fault-​oriented approaches, the court articulated a positive account of the liability imposed on the employer as follows: It is unnecessary to attach any label to this type of liability; it is purely statutory. However, it serves a purpose somewhat similar to that of vicarious liability in tort, by placing responsibility for an organization on those who control it and are in a position to take effective remedial action to remove undesirable conditions.15

7  Lian v J Crew Group Inc, 54 OR (3d) 239, [2001] OJ No 1708. 8  McCormick v Fasken Martineau DuMoulin LLP, 2014 SCC 39. 9  Robichaud (n 4) [7]‌. 10  [1984] 2 FC 799. 11  Robichaud (n 4) [7]‌. 12  ibid [90]. 13  ibid [11]. 14  ibid [12]. 15  ibid [17].

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This is a radical and very powerful passage expressing a very important idea. The key to the court’s reasoning is that the remedial purposes of the legislation ‘would be stultified if the . . . remedies were not available against the employer’.16 The employer did not itself commit the acts complained of, it was not found liable because of any wrong it committed (failing to supervise the supervisor, negligent hiring, etc), nor was the liability based on any theory of vicarious liability inherent in the employment relationship. Rather, the employer was found responsible because it was best placed to do what was required to both remedy and prevent the violation of the statute’s purposes. In a sentence, the focus in Robichaud is not, as conventional labour law thinking would have it, on who controls another person, but who controls the success or failure of statutory purposes. Our second case, Tim Hortons v Steel Workers, concerned a human rights complaint filed by the United Steelworkers union on behalf of a group of temporary workers from the Philippines (the complainant workers). The complainant workers had been brought to Canada under the Temporary Foreign Worker Program (TFWP) to staff a Tim Hortons coffee shop in Fernie, British Columbia.17 The complaint workers alleged a pattern of discrimination, including the refusal to pay overtime premiums, giving the TFWP workers less desirable shifts than other workers, and threatening the TFWP workers with being sent back to the Philippines.18 The complaint was filed against both the owners of the franchise where the violations took place—​the franchisee, and corporate Tim Hortons—​the franchisor. In other words, the Steelworkers union sought to hold Tim Hortons, as franchisor, accountable for the harm afflicted to the franchisee’s employees. Tim Hortons brought a motion to dismiss the action against it, alleging no reasonable prospect of success on the grounds that Tim Hortons was not the ‘employer’ of the complainant workers, rather, the franchisee was. Tim Hortons argued ‘that the franchisee is responsible for hiring and training its employees, establishing their terms and conditions of employment, paying WCB [Workers’ Compensation Board] premiums and complying with all local labour laws and the Code’.19 Tim Hortons went on to allege that ‘they were not party to any employment contracts with any members of the Complainant Group, had no control over any terms of employment and had no ability to influence the employment relationship between members of the Complainant Group and [the franchisee]’.20 As such, Tim Hortons asserted that they could not be held liable for the rights violations committed by the franchisee. All very familiar labour law thinking. But the tribunal dismissed Tim Hortons’s application, finding that the absence of a direct contract between Tim Hortons and the complainant employees was not determinative of the issue. A finding of discrimination ‘is not limited to employers or persons who attract vicarious liability’.21 In fact, the tribunal expressly acknowledged the emphasis in some jurisdictions on establishing a relationship of employment or an employment-​like relationship when determining liability, and it noted that such decisions should be approached with caution.22 According to the tribunal, the key question to be decided was whether the franchisor (Tim Hortons) was in a position to monitor and control the success of the purposes of the legislation. Nicely summarising Robichaud, the tribunal affirmed that ‘liability in a human rights context should not be determined on the basis of principles brought from other areas’ but rather it should be found ‘with regard to the remedial purposes of such legislation’.23 16  ibid [15]. 17  Tim Hortons ‘restaurants’ are ubiquitous in Canada, known primarily for selling coffee and donuts, but also other food products. 18  Tim Hortons (n 5) [6]‌. 19  ibid [52]. 20  ibid  [9]‌. 21  ibid [63]. 22  ibid [65]. 23  ibid [70].

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Robichaud and Tim Hortons are simple cases. By focusing on the purpose and object of the statutes in question, the adjudicators effectively advance that purpose and object in the decision they render. Since the statutes in question were enacted to provide protection to workers and others in need of protection, this approach functions to advance that protection above all else. Both decisions make it abundantly clear that the contract of employment is not determinative of the scope of accountability, the conceptual categories of employer or employee are not indicative of the remedial entitlements, and the core normative ambition has little to do with the inequality of bargaining power between employers and employees. What we see instead is a clear and steady focus on the remedial purposes of the legislation and a pragmatic determination of who is best positioned to advance that remedial purpose. The approach in these cases is remarkable because of its simplicity. The effect of focusing solely on the legislative purpose is that the contract of employment fades from the limelight. Along with it goes the coherence of a normative ambition wholly circumscribed by the injustice arising between an employer and an employee with respect to the contract of employment.24 But that is exactly how the conventional labour law narrative proceeds—​on the basis that labour exists to protect workers from the injustice that is sure to arise from the contract of employment given the inherent inequality of bargaining power between an employer and an employee. This is the mischief that labour law seeks to cure through procedural and substantive means. Yet, Tim Hortons and Robichaud are clearly not motivated by a normativity having anything to do with the contract or any inequality of bargaining power involved in its negotiation or administration. That being the case, we are left with the following questions: what normative account of labour law can explain these remarkable cases? And what is the reach or scope of a labour law so understood? Our answer here must depict a normative ideal that moves beyond the equalisation of bargaining power and offers us a fuller, more robust account of why we do what we do. That is, we need a better answer to the question ‘what is labour law for?’ It is obvious that such an account requires a frame of thought which is not centred on the contract of employment, or any other contract. It will have to be able to deal with problems caused, and sometimes solved, by contract, but it cannot take contract as central, or even as a necessary starting point. Thus, it seems clear that we need a view which allows us to directly connect our various labour law purposes to those within their purposive scope. It follows that we need to focus directly upon workers. That is, we need a ‘worker-​centred’ approach.25 This does not mean that we will not have contracts of various sorts through which labour is engaged, including what we now know as the standard contract of employment. Rather, our focus is upon connecting our labour law purposes to the people who are labouring. The existence or the absence of a contract, like the presence or absence of wrongdoing or fault in Robichaud, can be seen as two different, and potential, sets of pragmatic circumstances which have to be dealt with—​sometimes by seeing them as irrelevant in making the connection. Our problems are more pragmatic than we could previously see. If we could cast off from the land of contracts, we would be in a position to account for the diversified forms of productive activity that permeate our modern economy. If our

24  See ‘Labour Law’s Back Pages’ (n 2) 17: in order to maintain the coherence of a subject such as ours, it must be true that we are able to construct a compelling story (or narrative), both conceptually and normatively, of all the law appropriate to this subject matter as a subject matter, ie of what it is (and is not), why it is important, and therefore why it deserves our attention. If such a constituting narrative is available and compelling, then we have a viable subject matter. 25  See, on this idea, Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2012) 310ff; Supriya Routh, Enhancing Capabilities Through Labour Law:  Informal Workers in India (Routledge 2014).

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subject were not based on an a priori assumption of the existence of two entities, employers and employees, and regulating the contract between them, the potential scope of our labour law could include independent contractors, dependent contractors, self-​employed individuals, unwaged workers, independent producers—​in short, all those who work. But this opening up begs the question of what important concern could provide the normative force required to hold it all together? What purposes are labour law’s purposes? The idea advanced here is that the normative frame required for our discipline is that provided by Amartya Sen and Martha Nussbaum.26 The common structure to both of their approaches is critical to our current task. That is, both Sen and Nussbaum share a resolute focus on starting with ends rather than means. The end, as Sen puts it, is real human freedom to lead lives that we have reason to value.27 That is, as Nussbaum describes it, a life worthy of human dignity.28 At the outset, we will note that there are important distinctions between Sen and Nussbaum’s work and, although we will draw unique elements from each, our primary inspiration will come from the ideals that are common to both. For the purposes of clarity, we can refer to their theories collectively as the ‘human development’ approach moving forward.

3.  Basic Starting Points The human development approach envisions substantive human freedom as both the end goal and the way there—​freedom is the end and the means. The focus is on the expansion of capabilities—​that is, improving human lives by expanding the range of things that a person can do and be.29 Capabilities, as Nussbaum explains, are the answers to the question, ‘What is this person able to do and to be?’30 What counts is not what persons do or are, but what they are capable of doing and being.31 Nussbaum summarised the approach as follows: [T]‌he approach takes each person as an end, asking not just about the total or average wellbeing but about the opportunities available to each person. It is focused on choice or freedom, holding that the crucial good societies should be promoting for their people is a set of opportunities, or substantial freedoms, which people then may or may not exercise in action: the choice is theirs.32

Capability is thus distinguishable from actually doing or being something—​these are termed ‘functionings’. Functionings are conceived of as ‘the things a person may value doing or being’ and they may range from ‘elementary ones’ such as ‘being adequately nourished’, to very complex ones such as ‘being able to participate in the life of the community and having self-​respect’.33 While the combinations of a person’s functionings represents her actual achievements, the capability set represents the freedom to achieve: the alternative functioning combinations from which this person can choose. The evaluative focus of this ‘capability approach’ can be either on the realised functionings (what a person is actually able to do) or on the capability set of alternatives she has (her real opportunities). The two give different types of information—​the former about the things a person does and the latter about the things a person is substantively free to do.34 A ‘fertile functioning’35 or ‘fertile capability’ is one that tends to advance and promote other related capabilities.36 Nussbaum uses a specific example where a woman’s access to 26  Leaving aside their differences for now: see Development as Freedom (n 6) and Creating Capabilities (n 6). 27  Development as Freedom (n 6). 28  Creating Capabilities (n 6) 29. 29  ibid 14. 30  ibid 20. 31  Brian Langille, ‘ “Take These Chains from my Heart and Set Me Free”:  How Labour Law Theory Drives Segmentation of Workers’ Rights’ (2015) 36 Comparative Labor Law and Policy Journal 257, 270. 32  Creating Capabilities (n 6) 18. 33  Development as Freedom (n 6) 75. 34 ibid. 35  Jonathan Wolff and Avner de-​Shalit, Disadvantage (OUP 2007) 37. 36  Creating Capabilities (n 6) 44.

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credit functioned as a fertile capability. She explains that ‘the loan enabled her to protect her bodily integrity (by not returning to an abusive husband), to have employment options, to participate in politics, to have a sense of well-​being, to form valuable affiliations, and to enjoy enhanced self-​respect’.37 Which functionings or capabilities are fertile may vary depending on the context. On the flip side, a ‘corrosive disadvantage’ is a deprivation that leads to disadvantages in other functionings.38 The utility in identifying fertile functionings/​ capabilities and corrosive disadvantages is that, in so doing, one can identify the best intervention points for public policy.39 The fertility of one capability or its tendency to remove corrosive disadvantages indicates that it is salient enough to devote our resources to.40

(a) Basic starting points for labour law ‘Work’ or ‘productive activity’ is a ‘functioning’ as defined in the human freedom framework. Having the health, education, and so on to enter the workforce—​to have human capital which can be deployed—​is a valuable internal capability package. Our labour law, as does the capability approach, has long recognised the intrinsic value of this capability as well as its instrumental significance for other aspects of our lives. Work can turn out to be a corrosive disadvantage or a fertile functioning. The job of labour law is to prevent the former and promote the latter. To do this, labour law must conceive of itself as engaged in the project of expanding the real capability that people have to lead lives they have reason to value. Human capital is at the core of human freedom. Human capital is thus best understood as the capability set that enables a person to be a productive part of the workforce. On this view, labour law is best conceived as the part of our law that structures, and thus constrains or liberates, human capital deployment.41

4.  Combined Capabilities Real capability depends upon what resources we have at our disposal and how well we can actually put our capabilities to use in the real world.42 This is the idea of ‘conversion’. We must attend to not only the resources or primary goods that a person has, but also ‘the relevant characteristics that govern the conversion of those primary goods into the person’s ability to promote her ends’.43 Nussbaum best analyses capabilities as follows:44 she speaks of ‘basic capabilities’, ‘internal capabilities’, and ‘combined capabilities’. Basic capabilities are ‘the innate faculties of the person that make later development and training possible’.45 Internal capabilities are ‘not fixed, but fluid and dynamic’ they are trained or developed ‘in interaction with the social, economic, familial and political environment’.46 Internal capabilities include 37 ibid. 38  Disadvantage (n 35) 131. 39  Or, in the case of labour law specifically, they can be used to indicate the points where policymakers have already identified the corrosive disadvantage or fertile functioning/​capability and have acted in ways that respond to it. Eg by providing remedies through statutory instruments. 40  Creating Capabilities (n 6)  44–​5. See also Amartya Sen, ‘Inequality, Unemployment and Contemporary Europe’ (1997) 136 International Labour Review 156 for an exploration of the corrosive disadvantages of unemployment. 41  Human capital is here not thought of solely in economic or instrumental terms (indirectly contributing to productivity and GDP growth) but also as an end in itself (directly contributing to a more fulfilling and freer life(. See ‘Labour Law’s Theory of Justice’ (n 2) 112. 42  ‘Take these Chains’ (n 31) 270. 43  Development as Freedom (n 6) 74. 44  This passage draws upon ‘Take these Chains’ (n 31) 274. 45  Creating Capabilities (n 6) 24. 46  ibid 21.

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personal characteristics such as ‘personality traits, intellectual and emotional capacities, states of bodily fitness and health, internalized learning, skills of perception and movement’.47 One job of society is to support the development of ‘internal capabilities through education, resources to enhance physical and emotional health, support for family care and love, a system of education, and much more’.48 But this is not enough, for not only does a society need to nurture internal capabilities, it must also attend to the social, political, and economic conditions, or ‘external conversion factors’ in which ‘functioning can actually be chosen’.49 In Nussbaum’s terms, combined capabilities ‘are not just the abilities residing inside a person but also the freedoms or opportunities created by a combination of personal abilities and the political, social, and economic environment’.50 An individual’s combined capabilities are thus understood as the ‘totality of the opportunities she has for choice and action in her specific political, social and economic situation’.51 Two simple examples show the strength of the combined capability idea. First, ‘many people who are internally capable of participating in politics are not able to choose to do so in the sense of combined capability: they may be immigrants without legal rights, or they may be excluded from participation in some other manner’.52 The internal capabilities are present (the intellectual and physical capacities etc) but the external conversion factors (the legal circumstances in which functioning can actually be chosen, the functioning here being the decision to actually vote) were not. A second example is the existence of states in which everyone is legally free to participate in politics but the state’s failure to deliver basic health care and education renders the people unable to do so.53 These examples demonstrate how there can be both formal and informal substantive restrictions upon citizens. But recall that what counts, according to the capabilities approach, is not what people do—​that is to say, their functionings, for example whether they vote or not—​but their capability, ie having a real substantive freedom to choose whether to act or not.

(a) Combined capabilities in labour law The notion of combined capability, with its focus on external conversion factors, such as law, can map directly onto labour law and its story of inequality of bargaining power.54 The general law of contract, while formally neutral and equal, was an ‘external conversion factor’ that did not support the development of combined capabilities, or substantial freedoms. Labour law was thus established as a means of fostering the combined capabilities of workers by shifting the external legal condition to be one in which functionings could actually be chosen.

47 ibid. 48 ibid. 49  ibid 22. 50  ibid 20. 51  ibid 21. It is helpful to note here that what Nussbaum refers to as ‘combined capabilities’, Sen refers to in more general terms as ‘substantial freedoms’—​a set of (usually interrelated) opportunities to choose and to act. In Sen’s vision, substantial freedoms are a set of (usually interrelated) opportunities to choose and to act. 52  Creating Capabilities (n 6) 21. 53  ibid 22. Nussbaum notes, ‘terminologically, we would say that neither internal nor combined capabilities were present, but that the society had done at least some things right’. 54  ‘Take these Chains’ (n 31) 273.

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5.  Process and Opportunity Another key element of Sen’s thinking is as follows: what matters is not only what set of capabilities one ends up with, but how you came to have them. This is what Sen describes as the ‘process’ aspect of freedom and not simply the ‘opportunity aspect’.55 This is an expression of Sen’s continuous emphasis on democratic participation and human freedom, both as the end as well as one of the most valuable ways to achieve it. Freeing humans to particulate in advancing the cause of their own freedom and to not be the ‘passive recipients’56 of benefits is fundamental to Sen’s approach.57 This relates to Sen’s ideas about free agency being both a constitutive part of development and also a contributor to the strengthening of free agencies of other kinds. As Sen describes, ‘[g]‌reater freedom enhances the ability of people to help themselves and also influence the world, and these matters are central to development’.58 This idea is elaborated in the next section.

(a) Process and opportunity in labour law The crucial importance of both process and opportunity is implicit in labour law’s provision of both procedural and substantive protections for workers. Labour law intervenes in the employment relationship in two distinct ways. First, it intervenes with substantive protections to ensure workers receive their most basic entitlements. This is sometimes referred to as ‘legislative protectionism’59 as it is achieved through the substantive rewriting of employment contracts through, for example, employment standards legislation, human rights codes, and health and safety laws. Secondly, labour law intervenes with procedural protections ensuring the conditions necessary to engage in the process of collective bargaining. That is, labour law provides the necessary external legal structure (or ‘conversion factors’) to ensure workers have the freedom to associate, organise, and collectively bargain with their employers should they so choose. The collective bargaining regime helps workers obtain the ultimate outcomes they desire, but, more fundamentally, it provides workers with the real capacity to choose. The regime is often understood to provide for the self-​advancement of working people.60 On this intrinsic view it is not simply what the freedom does, or results in, for you, but what you can do with the freedom that matters.61 This important idea has long been central to labour law thinking. The classic defence of collective bargaining laws offered by Paul Weiler is one clear example. Weiler first identified the economic impact of unions—​better wages and other terms of employment. He next identified what he called the ‘civilizing’ or ‘rule of law’ impact of unions. This captures the way in which collective agreements establish enforceable objective standards constraining management discretion. These two functions address what Hugh Collins has identified as the submission and subordination problem. However, and this is the key point, Weiler held 55  Development as Freedom (n 6) 17. See also Sen’s The Idea of Justice (Harvard University Press 2009). 56  Development as Freedom (n 6) 11. 57  He offers the cogent example of a rich person being prevented from speaking freely—​that person may have her basic needs covered but she is still deprived of something that she has reason to value. At 67 of Development as Freedom, Sen notes: as such, ‘the process of development, when judged by the enhancement of human freedom, has to include the removal of this person’s deprivation’. Sen further explains at 291, ‘[s]‌uch processes as participation in political decisions and social choice cannot be seen as being—​at best—​among the means to development (through, say, contribution to economic growth), but have to be understood as constitutive parts of the ends of development in themselves’. 58  Development as Freedom (n 6) 18. 59  Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211. 60  ibid 292. 61  ‘Condescending Constitution’ (2016) 19 Canadian Labour and Employment Law Journal 335, 341.

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that the true defence of collective bargaining does not reside in these two purposes. This, he explains, is because ‘[c]‌ollective bargaining is not simply an instrument for pursuing external ends, whether these be mundane monetary gains or the erection of a private rule of law to protect the dignity of the worker in the face of managerial authority’. Indeed, these external ends can, after all, be provided by benign management. ‘Rather, collective bargaining is intrinsically valuable as an experiment in self-​government.’62

6.  Intrinsic and Instrumental Value: Freedom as the End and the Means As previously stated, human freedom is both the end and the means of development. Reflective of the emphasis on both process and opportunity outlined earlier, freedom as both the end and means also speaks to the intrinsic and instrumental value of human freedom: Expanding the freedoms that we have reason to value not only makes our lives richer, and more unfettered, but also allows us to be fuller social persons, exercising our volitions and interacting with—​and influencing—​the world in which we live.63

Sen notes that the intrinsic importance of human freedom has to be distinguished from its instrumental effectiveness in promoting human freedom.64 The two different roles played by human freedom he refers to as the ‘constitutive role’ and the ‘instrumental role’.65 The constitutive role relates to the ‘importance of substantive freedom in enriching human life’.66 Steps taken to advance individual capabilities are, not surprisingly, instrumental to overall freedom as they represent an expansion of its constituent parts, however, the more important instrumental role relates to the effectiveness of human freedom in attaining other freedoms. Instrumental freedoms, as Sen notes, tend to contribute to the general capability of a person to live more freely, but they also serve to complement one another.67 While we must remain aware of our ultimate ends that make instrumental freedoms ‘consequentially important’, we must also remain aware of the empirical linkages that tie the distinct types of freedoms together, strengthening their joint importance.68 This reinforces the ideas of fertile functionings/​capabilities and corrosive disadvantage noted earlier. If our ultimate objective is expanding real human freedom, we must understand and account for the interconnectedness of capability and disadvantage and account for the empirical consequences in our efforts.

(a) Intrinsic and instrumental importance in labour law The capability and freedom to work is intrinsically valuable as a substantive freedom in itself, and working is also instrumentally valuable in attaining freedoms and choices in other areas of our lives. As previously noted, having the health, education, and so on to enter the workforce—​to have human capital which can be deployed—​is a valuable internal capability package, not simply because these capabilities might ultimately contribute to economic growth and productivity, but also because it allows the person to live a freer and more fulfilling life.69 What is significant are the links one can easily discern between these labour 62  Paul C Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Carswell 1980) 33. 63  Development as Freedom (n 6) 15. 64  ibid 37. 65  ibid 36. 66 ibid. 67  ibid 38. 68  Creating Capabilities(n 6) 38. 69  ‘Labour Law’s Theory of Justice’ (n 2) 112.

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capabilities and other capabilities, including: life, bodily health, bodily integrity, affiliation (including non-​discrimination), and so on.70 This is because access to decent work is not only an important capability in itself, and a large/​everyday dimension of our lives in which many capabilities are in play, but also because work is instrumental to the securing of other capabilities. Whether in formal employment or in the informal sector without an employer of any sort. It seems that decent work has some characteristics of a fertile functioning71 or fertile capability. Sen has argued that the traditional approach to ‘human capital’ has emphasised the instrumental significance while the capability approach emphasises the intrinsic importance of capability. The idea of human capital, so entrenched, helps us shape the common labour law idea that, while social policies aim at nurturing internal capabilities and human capital, others are aimed at the real world of formal and informal obstacles to their deployment. Work is a central part of life both intrinsically, as a focal point for the working out (or not) of many important aspects of our lives, and as an instrumental vehicle, for the securing of other vital aspects of our lives. This is an empirical claim which no labour lawyer challenges. As previously noted, the intrinsic and instrumental value of freedom is evident in the collective bargaining regime. The instantiated freedom to associate, that is, the procedural protections labour law accords to the processes of unionisation and collective bargaining, is both intrinsically valuable as ‘an exercise in self-​government’ and also instrumentally valuable in securing favourable working conditions (which in turn will likely advance freedoms in other areas).

7.  Practical Application: Removing Unfreedoms In Development as Freedom, Sen noted that ‘[d]‌evelopment can be seen . . . as a process of expanding the real freedoms that people enjoy’, he goes on to explain ‘development consists of the removal of various types of unfreedoms that leave people with little choice and little opportunity of exercising their reasoned agency’.72 He notes that, ‘[v]iewing development in terms of expanding substantive human freedoms directs attention to the ends that make development important, rather than merely to some of the means that, inter alia, play a prominent part in the process’.73 This messages is particularly salient for labour law.

(a) Practical application: removing unfreedoms in labour law The idea of removing unfreedoms—​of the removal of substantive obstacles, formal and informal, to the deployment of human capital—​is pragmatic and useful. Thus, under this new normative frame, labour law’s role can be seen as identifying, and removing, obstacles to the deployment of human capital in ways which optimise its intrinsic and instrumental role in lives lived. By remaining focused on our true ends of expanding real human freedom to lead lives we have reason to value, a normative account that limits labour law’s core purpose to the amelioration of an employment contract between an employer and an employee can be seen for what it truly is: simply one of the venues for achieving our broader overall purpose. The

70 The listed capabilities reflect the ‘Central Capabilities’ identified as being of paramount importance in Nussbaum’s approach. 71  Disadvantage (n 35) 131. 72  Development as Freedom (n 6) xii, 1. 73  ibid 3.

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empirical and conceptual conditions necessary to facilitate the pursuit of equal bargaining power are only useful to the extent that they function to advance our broader normative vision—​that is, the expansion of real capability to lead lives we have reason to value. We can advance our ultimate object in more ways than just the limited method anticipated by our conventional account. The result is that the human freedom framework sets us free to pursue our ultimate ends in the most pragmatic way possible.

8.  Human Freedom in Real Labour Cases: Revisiting Robichaud and Tim Hortons The method for accomplishing all of this is on display in Robichaud and Tim Hortons. It is one of identifying the obstacle or ‘unfreedom’ to be removed by the labour law in question, and proceeding in pragmatic fashion to determine how best to ensure that removal actually occurs. Remember, the end is substantive human freedom—​the real capability to lead lives we have reason to value. The precise obstacle that manifested as an ‘unfreedom’ or ‘corrosive disadvantages’ that was in need of removal was obvious in both cases. In Robichaud it was sexual harassment at work; in Tim Hortons it was discrimination based on race, colour, ancestry, and place of origin. In human development terms, sexual harassment and discrimination in the workplace are corrosive disadvantages—​they are disadvantages that cause other disadvantages.74 As both cases involved legislation enacted specifically to prevent the unfreedom alleged, the process of removing the obstacles was, as described in Robichaud, ‘purely statutory’.75 There was no need to rely on elements of contract, tort (including notions of fault), or any other legal category. These cases indicate that we are simply after the following sorts of pragmatic questions: who is in a position to advance this aim of our labour law; who can effectively remove the obstacle in question; or, as was asked in Robichaud, who was positioned ‘to eradicate anti-​social conditions’?76 The questions, therefore, are ‘who is well positioned to monitor for compliance, bear a duty, respond to an incentive, and to take the required action both prophylactic as well as remedial?’ And so on. Just the sorts of questions asked in Robichaud and Tim Hortons—​unmediated and unhindered by labour law’s self-​imposed empirical and conceptual limitations. Again, all that needs to be considered are the statutory purposes, and a pragmatic issue about who is best positioned to advance those purposes through prevention and cure. All in light of our true goal of human freedom in work.

9.  Measuring Success: A Litmus Test A vital litmus test for any proposed account of our discipline is whether it can respond to the challenges created for us by labour law’s standard account of itself. One way to measure this is to apply the proposed normative account to actual cases where the empirical and conceptual limitations of our dominant account are readily on display. Two such cases are that of Lian v J-​Crew Group and Faskens v McCormick. We will begin with a critical summary of each case before reconstructing them using the human freedom framework.

74  Sexual harassment and racial discrimination are linked to psychological harm, social isolation, violence, a lack of perceived self-​efficacy, unemployment, poverty, the perpetuation of prejudice in the broader community, etc. 75  Robichaud (n 4) [17]. 76  ibid [11].

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(a)  Lian v J-​Crew Ms Lian was an immigrant homeworker whose job was to sew garments in her apartment for a company called Eliz World. The garments carried the labels of J-​Crew and other brands. J-​Crew had contracted with garment manufacturers in Asia who, in turn, subcontracted down through several tiers of production chain before reaching Eliz World and ultimately Ms Lian. J-​Crew successfully avoided any direct contractual relations between themselves and Ms Lian, despite her sewing J-​Crew garments. Ms Lian was not paid in accordance with the applicable Employment Standards Act (ESA). Rather than suing the sub-​sub-​sub-​sub-​contractor with whom she dealt directly (a ‘fly by night’ operation which did not respond to Ms Lian’s legal claim) she sued the well-​known firm at the top of the chain whose labelled garments she was sewing. Notwithstanding a very broadly worded statutory definition of who her ‘employer’ might be,77 the judicial holding that J-​ Crew was not her ‘employer’ was fatal to her case. Ms Lian, it was said, was participating in an ‘integrated industry’ but not in an ‘integrated business’.78 Ms Lian’s claim failed because she was unable to establish the existence of a contract of employment between herself and J-​Crew. The impugned statute, as mentioned, was the ESA, the purpose of which is to protect the interests of employees by compelling employers to comply with the minimum fair and reasonable standards. The legislature in this case had acknowledged the empirical reality of prevalent subcontracting and fragmented supply chains in the garment industry, and it had acted to ameliorate the resultant unfreedoms by broadening the definition of ‘employer’ such that it included all those involved in ‘associated or related activities or businesses’ if the ‘intent or effect’ of the separation of business ‘directly or indirectly defeat[s]‌the intent and purposes’ of the Act.79 Which was precisely what happened in Lian—​J-​Crew had subcontracted the employment of Ms Lian down to Eliz World and the intent or effect was to evade responsibility for Ms Lian’s working conditions and wages. The judge, however, was unwilling or unable to conceive of the subcontracted supply chain as within the scope of labour law’s concern. Another way of putting this same point is that the court could not see that, for the remedial purposes of the pay protection statute in question, J-​Crew was Ms Lian’s ‘employer’. The upshot of this case was that an entire class of vulnerable workers were denied basic labour protections because their work structure did not align with the conventional contract of employment. Worse still, the decision likely perpetuated the fragmentation problem by signalling to other firms like J-​Crew that they are able to denounce accountability without penalty.

77  The relevant statutory provision in the Ontario Employment Standards Act, 2000, SO 2000, c 41 reads: Separate persons treated as one employer 4. (1) Subsection (2) applies if, (a) associated or related activities or businesses are or were carried on by or through an employer and one or more other persons; and (b) the intent or effect of their doing so is or has been to directly or indirectly defeat the intent and purpose of this Act. 2000, c. 41, s. 4 (1). Same (2) The employer and the other person or persons described in subsection (1) shall all be treated as one employer for the purposes of this Act. 2000, c. 41, s. 4 (2). One would have thought that this was a very useful provision aimed exactly at the problem at the heart of Weil’s book: while fissuring has advantages it also has disadvantages in that it precisely drives the sort of labour law violation we see in Lian. 78  Lian (n 7) [57]. 79  See Employment Standards Act 2000, SO 2000, c 41, s 4.

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(b)  Faskens v McCormick The 2014 SCC decision Faskens comes from the other end of the labour law world—​that of law firms and their partners—​but it involves the telling of the same legal story told in Lian. The plaintiff had been forced out of his partnership (a law firm) on the basis of his turning the age of 65. This is overt discrimination on the basis of age in the sphere of employment.80 Mr. McCormick was ‘intentionally’, overtly, and unashamedly fired simply because of his age. But his claim under the Human Rights Code failed for the same reason as did Ms Lian’s: there was no employer/​employee relationship or employment contract. Even though there was clearly a contract of some type, all the court was concerned with was determining whether it was an ‘employment contract’ in the sense that Mr McCormick was an ‘employee’ and the law firm was the ‘employer’ and therefore they were in an ‘employment’ relationship with one another. The court found that there was not enough subordination, ‘dependence’, or other such factors to classify Mr McCormick as an employee. The result was that Mr McCormick suffered overt discrimination with no legal recourse in light of his status as falling outside the conventional concept of ‘employee’. Discrimination in the workplace is a corrosive disadvantage, or unfreedom, that is explicitly contemplated by the Human Rights Code. For those who have read the Human Rights Code and understand its purposes, the exclusion of law firms and the partners who work in them from the Code’s application remains a very real mystery.81 Again, another way of putting the same point:  the court could not see—​or was blind to—​the idea that being a partner at a law firm is ‘employment’ and Mr McCormick is an ‘employer’ for the statutory purposes at hand. The plaintiffs in both of these cases are denied basic labour law protections (pay protection and anti-​discrimination laws, respectively) that were specifically enacted to protect workers in their positions. The reason was that the court held that either there was not a contract, or there was not the right type of contract (the right type being the contract of employment between an employer and an employee).

(c)  Lian and Faskens: reconstructed The next question must necessarily be, how would the human development approach differ in its treatment of these cases? Our starting point, as advocated by both Nussbaum and Sen, is recognising what our true ends are. As we have already established, our end is substantive human freedom—​the expansion of real capability to lead lives we have reason to value. In labour law’s terms specifically, we know this requires removing the obstacles to the deployment of human capital in ways which optimise its intrinsic worth and instrumental role in advancing substantive human freedom. Keeping that in mind, our next move is to identify the obstacle in need of removing. On the pragmatic approach demonstrated in Robichaud and Tim Hortons, the obstacle may be viewed in light of the statutory purpose. In other words, we must address the obstacle to be removed by the labour law in question. In Lian, this directs our attention to the ESA and precisely the provisions regarding pay rate and the broad definition of who is an employer as this is an indication of who is contemplated as being the person able to best control the statutory purposes. The purpose of these combined 80  To file a human rights claim there are three criteria: (a) there must be differential treatment; (b) connected to a prohibited ground; (c) within a protected sphere. ‘Employment’ is a protected sphere. 81  See Brian Langille and Pnina Alon-​Shenker, ‘Law Firm Partners and the Scope of Labour Law’ (2015) 4 Canadian Journal of Human Rights 211.

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provisions was clearly to ensure that workers are fairly compensated for their work (not exploited) notwithstanding the outsourcing of labour. The obstacle here was twofold: first and most obvious, the deprivation of wages, a corrosive disadvantage; secondly, the persistence and prominence of the fragmented supply chain in the textile industry—​arguably, this is also a corrosive disadvantage. In Faskens we look to the purposes of the Human Rights Code which we know from Robichaud is ‘ “to give effect” to the principle of equal opportunity for individuals by eradicating invidious discrimination’.82 The obstacle here was, again, discrimination, a corrosive disadvantage.83 Before moving on to the next stage of the analysis, it is worth identifying some of the operative human freedom concepts/​ideas at play in these cases. In light of the fact that work/​employment is a fertile functioning with respect to the instrumental role it plays in the acquisition and maintenance of other capabilities and functionings, it is important to recognise the full implications of the unfreedoms at issue here. If Ms Lian cannot be compensated for her work and her employer, whoever that is, fails to deliver on those wages, it is reasonable to assume that she cannot continue to work for that employer and thus she will be unemployed, at least temporarily, and her prospects for new employment will likely be limited to situations involving similar working conditions and associated accountability problems. And if Mr McCormick is discriminated against by his law firm on the basis of his age and the consequence is that he can no longer work for the partnership, he too will be unemployed. This outcome will necessarily lead to a further depreciation of his overall freedom. As Sen explains, There is plenty of evidence that unemployment has many far-​reaching effects other than loss of income, including psychological harm, loss of work motivation, skill and self-​confidence, increase in ailments and morbidity (an even mortality rates), disruption of family relations and social life, hardening of social exclusion and accentuation of racial tensions and gender asymmetries.84

If the object of our exercise is to expand human freedom, it is important to keep in mind these empirical realities when coming to a decision. The next move in the analysis is to identify the person best positioned to respond—​ the person best placed to monitor, prevent, and remedy the obstacle—​and we place legal responsibility there. As in Robichaud and Tim Hortons, we are not preoccupied with the contract of employment, particularly in light of the fact that in Lian the unfreedom was perpetuated by strategic manipulation of the employment contract as a means of evading accountability, and in Faskens where the concepts of employer and employee were used solely as a means of distracting the court from the overt and explicit discrimination which had occurred. If we insist upon using the terms employer, employee, employment, and so on, they are to be understood as conclusions drawn from this method of fixing legal

82  Robichaud (n 7) [9]‌. 83  It is worth noting here that the presence of corrosive disadvantages—​deprivations that negatively impact other spheres of capability—​can, as previously noted, indicate a point which calls for public policy intervention, or, as the case was in Lian and Faskens, it can indicate a situation where policymakers have already intervened through statutory measures or otherwise thus conveying to the court that the unfreedom is particularly detrimental to the individual or group at risk and the court should be reticent of the broader implications of the detriment beyond just the particular unfreedom at issue. In such a situation, the court should focus its assessment on the remedial purposes of the statute in question. We see a failure to do this in Lian where the legislation clearly functioned to address the precise corrosive disadvantage Ms Lian faced. The failure of the court to appreciate the severity of the issue and the subsequent denial of a remedy not only left Ms Lian without her wages, but it perpetuated the cycle of labour violations that have become commonplace in the garment industry through the fragmented supply chain. 84  Development as Freedom (n 6) 94.

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responsibility—​and not the other way around, as drivers or determinants of responsibility. In Lian, it was clear that J-​Crew Group was the best equipped to ensure Ms Lian received her fair wages under the ESA, thus it is J-​Crew Group that should be fixed with legal responsibility. In Faskens, it is clear that the law firm is in the best position to prevent and remedy the obstacle they themselves imposed on Mr McCormick and therefore they should be fixed with legal responsibility. What of the common law of employment contracts? If we are confronted with a traditional employment contract then the logic of the human development approach instructs common law judges to identify obstacles—​in the shape of barriers to the deployment of human capital, or human capital deployment on terms inconsistent with advancing the cause of substantive human freedom—​and, once identified, work to eliminate them. A theory of labour law which is independent, in its normative self-​understanding of the idea of both a contractual relationship (Lian along with the whole informal sector) and one of a certain sort (Faskens), can of course—​as it must—​address the issues found in the ‘standard employment relationship’. Indeed, it can do so notwithstanding the power imbalances that those contracts necessarily entail. But on this new view, the power imbalance is merely one sort of blockage to the deployment of human capital. A  particular instantiation of a more general concern which can manifest itself in many ways in many circumstances. And on this view, the great advantage in seeing ‘inequality of bargaining power between two contracting parties’ as simply one particular version of a general problem of (securing) just deployment of human capital is tied to our other main point, and it is put so clearly in cases such as Robichaud: we do not need to tie ourselves to that particular account of employer/​employee relationships. Nor do we even have to consider that relationship at all in our thinking about how to advance labour law’s purposes. We are instead free to think directly and intelligently about how best to ensure that people like Ms Lian as well as Ms Robichaud receive the labour law they deserve.

10.  Broader Implications of the Human Development Approach If we were to adopt this new normativity as central to labour law’s self-​constituting narrative, then everything changes, including the domain of labour law and its central concepts. The contract of employment ceases to be the centre of attention and our central platform for the delivery of labour law. We no longer need to seek employees negotiating with employers in an effort to remedy inequality of bargaining power. We are permitted to see that the very concepts of employer and employee are often a barrier to the realisation of our goals in much of the modern economy.85 Moreover, if we see labour law as underwritten by the idea of human freedom we not only have a set of reasons for traditional labour law but also for non-​contractual approaches to work relations (informality, for example) and for other non-​traditional labour law subjects (unpaid work, education, child care, and so on).86 This very broad and important point is well made by Supriya Routh in his work on the informal sector in India. As he puts it: ‘This focus on human development of workers helps in thinking about informal workers as complete individual entities, not necessarily tied to an employment relationship on which the traditional idea of labour law is based.’87 He

85  ‘Take these Chains’ (n 31) 277. 87  Routh (n 25) 10.

86  ‘Labour Law’s Theory of Justice’ (n 2) 114.

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correctly notes that this results in a ‘new juridical basis’ of labour law and the need to ‘shift from balancing bargaining power to something else that is not based on an a priori assumption of the existence of two entities—​employers and employees’.88 This liberation from contracts of various sorts thus broadens our focus. It allows, as Routh’s work explicates, a comprehension, by labour law, of the world built on informal work (the way in which the majority of workers throughout the world now find themselves working).89 That is no mean feat. It allows us to take ‘fissuring’ in stride. The absence of contract may be seen as just another reality—​one which should not deflect our attention from delivering on labour law’s promises to workers.

11. Conclusion One of the most profound, classic, and beautiful written essays in Canadian labour law is David Beatty’s ‘Labour is Not a Commodity’.90 Written over thirty years ago, it is focused upon employment as the ‘central institution in which work is performed’.91 Beatty argued that what he called the personal aspect of employment was sacrificed to the ‘productive’ aspect. He voiced the view that the most pernicious aspect of the common law of the contract of employment was the employer’s ability to terminate the employee without cause at any time. Beatty was a well-​known labour arbitrator at the time and he was laying out the rationale for importing a ‘just cause standard’, common under collective agreements, into the common law contract of employment.92 Beatty’s reform proposal is quite at home with the ideas expressed in this chapter. This chapter would use different language of freedom, development, and capability. It might even address the problem of insecure employment in terms of ‘secure functionings’93 as a way of better capturing what is at stake. Insofar as employment is still an important institution for organising work, ensuring its adequacy to our normative ambitions is still a concern for labour law. But the import of this chapter is that employment is not our focus, not our starting point, and it is certainly not our end point. The methods of deployment of labour have changed since Beatty wrote. And he was at pains to remind us that employment too was a relatively new invention as a method of deployment. (Even then, as Routh would point out, we were ignoring the informal sector where the most work in the world was done.) We are simply opening ourselves to obvious charges of irrelevance if we tether our understanding of our labour law to that particular form of deployment of human capital, or any contractual form. But the case made here is not simply one of possible empirical irrelevance but of normative salience—​that we need, and have available, a deeper way of accounting for the importance of labour law. But once we have adopted our normative stance the legal project is free to be relentlessly pragmatic about how to best achieve it. It has the advantage of removing perverse incentives to, and techniques of, labour law avoidance—​ones which our current model makes available and perhaps inevitable.94 By slipping the moorings of contract, and adopting our new narrative’s normative orientation—​including the pragmatism it 88  ibid 147. 89  ibid 18. 90  David Beatty, ‘Labour is not a Commodity’ in Barry Reiter and John Swan (eds), Studies in Contract Law (Butterworths 1979) 314. 91  ibid 315. 92  This is a reform which Canadian common law judges have not yet adopted—​although the implications of the new ‘good faith’ principle are yet to be explored in this regard. Bhasin v Hrynew, 2014 SCC 71. 93  Disadvantage (n 35). 94  David Weil, The Fissured Workplace: Why Work Became So Bad for So Many (Harvard University Press 2014).

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both makes available, as well as sensible—​we are able to solve many of labour law’s current problems. And to ‘dissolve’ what is often called labour law’s existential ‘crisis’. We began by recounting and reviewing the unusual and remarkable cases of Robichaud and Tim Hortons. The approach and beneficial results on display therein cannot be explained on labour law’s current and dominant account of itself. We sought to discover an account of labour law that could explain and justify those decisions. We found that the human freedom approach not only explained much of what we already implicitly understand, as revealed in those decisions, but it offered a broader, more conclusive account of the true purpose of labour law. We then turned our attention to two other Canadian cases, Lian and Faskens, in which the result was in our view perverse, but dictated by an adherence to labour law’s received account of its role in our lives. We then saw that the way forward to beneficial results in such cases lies in emancipating ourselves from labour law’s outdated narrative. But a main point of this chapter is that this is not simply a lonely, purely theoretical, and external call for a radical overhaul of our basic thinking. Rather, it is an ‘internal’ call to legal duty—​to make sense of important and sound decisions that we already have on hand, sometimes from our highest courts, and which cannot be explained without revisiting some very basic ideas. We are forced as lawyers to see if we can make legal sense of them. Once we have undertaken that work, we have the tools at hand to see the nature of the mistake made in decisions such as Faskens and Lian which we knew were, in some basic way, wrong. We are also able to articulate in a principled way a justification for the very positive results we see in cases such as Robichaud and Tim Hortons. It is encouraging that the resources we need are implicit in, at least some of, our existing law. The task, which we have attempted here, is to make explicit that which was hitherto implicit. Doing that lets us see our way to a better understanding of our labour law. And also makes visible the truth that we are, sometimes at least, already there. Outside the fly bottle.

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6 Civic Republican Political Theory and Labour Law David Cabrelli and Rebecca Zahn 1. Introduction Several justifications are cited in the academic literature in favour of common law and statutory intervention in the field of labour law. First, there is the traditional ‘inequality of bargaining power’ rationale. This justification shares some commonalities with the second rationale, namely that labour laws are an integral part of the package that must be put in place to prevent the commodification of labour and achieve social justice and a more egalitarian society, in terms of the appropriate distribution of resources and opportunities. Finally, in recent times, the ‘law of the labour market’ school of thought has sought to conceptualise labour law as a discipline in more economic terms, in the sense that it promotes, and ought to promote, a regulated labour market that is well-​functioning for the benefit of all. However, these justifications have been criticised for ignoring the realities of the contemporary labour market where increasing numbers of people work outside the confines of standard employment contracts and for even bothering to undertake such a ‘sterile’ exercise as attempting to identify a theoretical explanation for the discipline in the first place.1 One must therefore ask to what extent traditional justifications for the legal regulation of the employment relationship have become frayed at the edges as a result of changes in underlying political, social, economic, and industrial conditions over the past half century. For example, to what extent do such developments render the orthodox rationales outmoded or redundant? In response to this question, a strand of academic literature has emerged which offers alternative theoretical support for the regulation of the work relationship. This chapter seeks to contribute to this debate by demonstrating how an account of justice based on ‘non-​domination’ grounded in contemporary civic republican political theory and associated with scholars such as Philip Pettit and Frank Lovett can prove helpful in shedding new light on the rationales for labour law intervention in the twenty-​first century. In order to do so, this chapter first summarises the traditional justifications for common law and statutory intervention in labour law and probes the accompanying objections. A  second section pinpoints the position of non-​domination civic republican theory in political philosophy and sets out some of the advantages of adopting it as a justification for labour laws. Against this background, the chapter then goes on to consider the extent to which non-​ domination theory can present an accurate descriptive account of the design and objectives of, and the range of individuals and policy areas falling and contained within, the sweep of, labour laws. The discussion moves on to provide a brief sketch of the potential benefits of

1  Bob Hepple, ‘Factors Influencing the Making of Labour Law’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011) 30. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 6 © Brian Langille 2018. Published 2018 by Oxford University Press.

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non-​domination theory in terms of its ability to chart a normative programme for the reform of labour law and the final section concludes.

2.  The Orthodox Rationales for Labour Law Intervention In this section, we identify and explore the oft-​versed deficiencies in the competing justifications for the introduction and preservation of labour laws. Here, we take the lead from Collins, who divided these rationales into two differing camps, depending on whether they are rooted in a ‘social justice’ or ‘efficiency’ strand.2 Turning first to the social justice-​ based ideological drivers, we focus on two distinct justifications for individual and collective labour laws, namely ‘equality of bargaining power’ and ‘social equality/​inclusion’. The emphasis on correcting the inequality of bargaining power inherent within the employment relationship has formed the classic account for regulatory intervention. The common law governing the regulation of the relationship between employer and worker has, at its heart, a belief in the equality of legal persons before the law. However, as noted by Von Gierke,3 Sinzheimer,4 and Kahn-​Freund,5 the private law protection of freedom of contract is seen as unjust in the sense that the recognition of formal equality underpinning that doctrine thinly conceals the inevitable inequality of bargaining power inherent in the relationship. Or, as Webb puts it, ‘whenever the economic conditions of the parties are unequal’ as they are in the majority of employment relationships, ‘legal freedom of contract merely enables the superior in strategic strength to dictate the terms’.6 The fictional notion of equality of the contracting parties simply tends to perpetuate the domination of the employer over the worker and the latter’s dependence on the former.7 As such, labour law supplements rather than supplants private law in order to reduce the domination of the employer by ‘emancipat[ing] the worker from the relationship of subordination to the [employer], “to temper the employer’s power to command”.’8 Seen from this perspective, the mission of labour law has been to override the freedom of contract doctrine to some extent by protecting workers because they suffer from an inequality of power in the contractual bargaining process. In the context of labour relations, ignoring the inevitable divergences in the power of management and labour is not necessarily a desirable approach and is one that, over the past fifty years or so, has been altered and amended by Parliament thereby nudging the power balance in a pro-​employee direction. Traditionally, therefore, ‘the main object of labour law has always been, and . . . will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship’.9 In the contemporary context, the concern with the correction of inequalities in bargaining power via the prophylactic of labour laws or the social practice of collective bargaining lacks clarity in its concept and has lost much of its force for a variety of reasons.10 2  Hugh Collins, ‘Theories of Rights as Justifications for Labour Law’ in Davidov and Langille (n 1) 137. 3  Otto von Gierke, Die soziale Aufgabe des Privatrechts (Springer 1889), cited in A Seifert, ‘ “Von der Person zum Menschen im Recht”—​zum Begriss des sozialen Rechts bei Hugo Sinzheimer’ (2011) 2 Soziales Recht 62, 64 (authors’ translation in this and subsequent foreign-​language citations). 4  Hugo Sinzheimer, ‘Demokratiesierung des Arbeitsverhältnisses’ (1928) in Hugo Sinzheimer, Arbeitsrecht und Rechtssoziologie: gesammelte Aufsätze und Reden (Europäische Verlagsanstalt 1976) 115–​24. 5  Paul Davies and Mark Freedland (eds), Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 18. 6  Sidney and Beatrice Webb, Industrial Democracy (Longmans Green & Co 1920) 217. 7  Ruth Dukes, The Labour Constitution (OUP 2014) 16. 8  ibid 17. 9  Davies and Freedland (n 5) 18. 10  For a spirited rejoinder reasserting the relevance of this concept as a justification for labour laws, based on the idea of labour laws curtailing the social ‘power’ of the employer as a means of expanding the scope of the human freedom of the employee, see Dukes (n 7) 212–15. To that extent, whilst inequality of bargaining power

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First, the ‘inequality of bargaining power’ justification for labour law has been criticised for its lack of precision in respect of the kinds of labour laws it may be used to justify: to the extent that it is at once under-​inclusive, insofar as it is unable to identify specifically the individuals who should and should not fall within the protective coverage of labour laws,11 as it is over-​inclusive, inasmuch as consumers, franchisees, and some commercial agents also labour under unequal bargaining power in the contracting process. But by no means can we conceptualise consumer, franchise, or agency laws as simply subsets of labour law. Equally, scholars have criticised the notion of bargaining power imbalances as the key driver for labour law intervention on the basis that it is overly grounded in the notion of subordination or dependency in work relationships, which are two concepts that do not necessarily map on neatly to disadvantage or vulnerability in such personal relations which ought more properly to be the target of such laws.12 Thirdly, the lack of interest of legislatures and governments in worker protection when enacting employment legislation, for example through more balanced and sustainable employment contracts, is amply demonstrated by the emphasis placed instead on designing systems that enhance business competitiveness and flexibility.13 Fourthly, traditional methods of regulation through individual labour laws or standard-​setting through collective bargaining both fail to take account of the range of methods by which working conditions are determined in a large proportion of workplaces, such as through individual agreement, or unilateral imposition. In addition, economists have attacked the notion that legal intervention is required to offset the unequal exchange of resources between the employee and the employer.14 They argue instead that ‘asymmetrical bargaining power does not prevent the free negotiation of any term or condition that the employee is prepared to pay for’.15 As such, for a variety of reasons, whilst the inequality of bargaining power justification is not necessarily inaccurate and cannot be easily dismissed as outmoded in every case, it does fail to convince as a universal account. We are thus left with two further justifications for labour law. The first is rooted in the social justice–​ideological strand, the development of which has coincided with vast changes in the UK labour market in the form of the structural reorganisation of working patterns and the industrial bases of developed economies over the past forty years. This rationale clings faithfully to the traditional social objective of labour law with its emphasis on the redistribution of wealth, resources, and power away from the employer to the employee. Such continued focus gives way to a realisation of social justice through the repulsion of the ‘economic logic of the commodification of labour’.16 Or, to put it differently, ‘the principal aim of labour law is to steer towards a particular conception of social justice, such as a more

may no longer have the capacity to offer up a central defining narrative for the regulation of the employment relationship, as will become clearer, the significance of the inevitable imbalance in the social power relations between employers and employees cannot be discounted as one of the components of any justification for labour law as an autonomous field of enquiry. 11  Brian Langille, ‘Labour Law’s Theory of Justice’ in Davidov and Langille (n 1) 105–​10. 12  Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2011) 370–​1 and 438–​9. See also Harry Arthurs, ‘The Constitutionalization of Employment Relations: Multiple Models, Pernicious Problems’ (2010) 19 Social & Legal Studies 403, 404. 13  Paul Davies and Mark Freedland, Towards a Flexible Labour Market: Labour Legislation and Regulation since the 1990s (OUP 2007) 5. 14  See Horacio Spector, ‘Philosophical Foundations of Labour Law’ (2006) 33 Florida State University Law Review 1119, 1133. 15  ibid 1133. Yet, this notion of employers agreeing to all benefits and protections provided employees are willing and able to cover their costs depends on the effective functioning of the labour market which, in most sectors, describes fiction rather than fact. 16  Hugh Collins, Employment Law (2nd edn, OUP 2010) 5. See also the discussion in Guy Davidov, A Purposive Approach to Labour Law (OUP 2016) 62–​4 and 68.

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egalitarian society, and the norms of labour law are required primarily for the instrumental purpose of securing that goal’.17 This formulation chimes with the line of thought which treats employment laws as state-​sanctioned norms that seek to promote social equality or equal autonomy, ie rules motivated by the desire to avoid social inequality and to ensure parity of status and power so that the employee and employer are afforded an equivalent degree of regard and deference in the workplace and by wider society.18 We now turn to the second ideological driver for labour laws, which is the ‘efficiency’ thread.19 In the contemporary context, the mainstream justification rooted in ‘efficiency’ finds its expression in the ‘law of the labour market’ discourse, whose principal proponents are Deakin and Wilkinson,20 Collins,21 Davies and Freedland,22 and Mitchell and Arup23 (admittedly, each with varying degrees of enthusiasm). This is closely linked to the functioning of the labour market and is anchored within a market-​driven ideology. The justification stresses the need to regulate labour market failures in order to achieve efficient labour markets.24 The basic claims associated with this approach are utilitarian in their foundation: that governments treat one of the principal objectives of labour law to be labour market regulation for the benefit of all members of society; and that such a regulatory set of techniques does not necessarily impose costs, since it can correct imperfections in the labour market and enhance overall efficiency. As Collins explains, it ‘appeals to efficiency or welfare considerations, in order to justify rules that address market failures caused by transaction costs and asymmetric information, problems arising in the governance of contracts of employment such as coercion and opportunism, and more generally the desirability of promoting productive efficiency and competitiveness through a well-​coordinated and flexible division of labour’.25 Such a rationale underlies, for example, much of the European Commission’s proposals on labour market regulation since the beginning of the twenty-​first

17  ibid. See also: Hugh Collins, ‘Justifications and Techniques of Legal Regulation of the Employment Relation’ in Hugh Collins, Paul Davies, and Roger Rideout (eds), Legal Regulation of the Employment Relation (Kluwer 2000) 4 and 26; Simon Deakin and Frank Wilkinson, ‘Labour Law and Economic Theory: A Reappraisal’ in the same volume, 42–​7; Bob Hepple, Labour Laws and Global Trade (Hart 2005) 262; and Bob Hepple, ‘Factors Influencing the Making of Labour Law’ in Davidov and Langille (n 1) 32–​4. 18  See Michael Walzer, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books 1983) xiii; Spector (n 14) 1144–​7; and Samuel R Bagenstos, ‘Employment Law and Social Equality’ (2013) 112 Michigan Law Review 225, 237. In this chapter, we leave to one side the growing trend for dignitarian-​based justifications to be advanced for the subject of labour law, on which see Guy Davidov, ‘A Purposive Interpretation of the National Minimum Wage Act’ (2009) 72 Modern Law Review 581, 592–​4; Freedland and Kontouris (n 12) 49 and 371–6; and Davidov (n 16) 59–​62. For a sceptical note on this dignitarian foundation, see Christopher McCrudden, ‘Labour Law as Human Rights Law:  A Critique of the Use of “Dignity” by Freedland and Kountouris’ in Alan Bogg, Cathryn Costello, ACL Davies, and Jeremias Prassl (eds), The Autonomy of Labour Law (Hart 2015) 289. 19  Collins (n 2) 137. 20 Deakin and Wilkinson (n 17)  29; Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment, and Legal Evolution (OUP 2005) and Simon Deakin, ‘A New Paradigm for Labour Law? A Review of Labour Law and Labour Market Regulation: Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships edited by Christopher Arup, Peter Gahan, John Howe, Richard Johnstone, Richard Mitchell and Anthony O’Donnell (Sydney:  The Federation Press, 2006)’ (2007) 31 Melbourne University Law Review 1161. 21  Collins (n 17) 9; Hugh Collins, ‘Regulating the Employment Relationship for Competitiveness’ (2001) 30 Industrial Law Journal 17. 22  Paul Davies and Mark Freedland, Labour Law: Text and Materials (2nd edn, Weidenfeld & Nicholson 1984); Paul Davies and Mark Freedland, Towards a Flexible Labour Market: Labour Legislation and Regulation since the 1990s (OUP 2007). 23 Christopher Arup et  al (eds), Labour Law and Labour Market Regulation:  Essays on the Construction, Constitution and Regulation of Labour Markets and Work Relationships (Federation Press 2006). 24  See Davies and Freedland (n 22) 1–​11; Deakin and Wilkinson (n 20) 5–​35; and Alan Hyde, ‘What is Labour Law?’ in Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (Hart 2006) 37. For a critique, see Dukes (n 7) 92–​122 and 194–​221. 25  Collins (n 2) 137.

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century and underpins its strategy to ‘turn the EU into a smart, sustainable and inclusive economy delivering high levels of employment, productivity and social cohesion’.26 The ‘law of the labour market’ account claims to be descriptively accurate (for example, with an emphasis on competitiveness, flexibility, managerial adaptability, and ‘partnership’ in policy circles as a means of enhancing the efficiency and functioning of the labour market) and normatively salient (as an instrument to evaluate the deficiencies in the law so that arguments about reforming its extent, content, and scope can be made) in terms of advancing a critical agenda for the discipline. The basic argument is that social rights conferred by labour laws are, and ought to be, market-​constituting and serve to set the basic rules of the game for a well-​functioning and efficient labour market. However, this approach has also been subject to criticism most notably by Dukes,27 Streeck,28 and Tucker.29 One objection is that there is an inherent danger in prioritising the economic over the social as the predominant unifying narrative or rationale for the study of labour law, since such an approach serves to underplay the purchase of the claims for particular labour laws and rights. There are limitations on the normativity of the law of the labour market narrative inasmuch as its internal grammar naturally imposes restrictions on the scope of the subject.30 This can be explained on the basis that, within this justificatory framework, the ultimate question when evaluating a proposed labour law reform is whether it will lead to greater efficiency, productivity, and a better functioning labour market, rather than whether it reduces the vulnerability, domination, or subordination of, or disadvantages experienced by, workers. In addition, the law of the labour market model operates to detach the connection between labour law and politics, as well as labour law and democracy/​democratic control of the adverse effects on workers of ever-​expanding markets. It is also unable to offer up justifications for certain areas of labour law, particularly collective labour laws, industrial action, collective representation, collective bargaining, etc,31 where there is no dispute between neoclassical and new institutional economists regarding the extent to which such laws have the effect of restraining, rather than constituting or complementing, a well-​ functioning labour market.32 In other words, these are areas of labour law that are clearly not market-​constituting. Overall, then, each of the three main justifications for labour law grounded in the ‘social justice’ or ‘efficiency’ variables are vulnerable to the critique that they no longer fully describe the role and scope of labour law, nor do they capture how such laws ought to be conceived and how far they ought to extend. Neither do they offer an all-​encompassing explanation for labour law’s interference in contemporary employment relationships—​ although the extent to which this is a reasonable and proper criterion for the identification of a sufficient or adequate theory of justification of labour laws must also be questioned. Furthermore, despite regular regulatory interference in the employment relationship by the legislature, the judiciary, and supranational bodies (such as the EU), competition and flexibility amongst workers has increased, atypical and precarious forms of labour are on the rise, while the strength of organised labour has declined and is continuing to do so.

26  Commission, ‘Europe 2020’, COM (2010) 2020 final, 5. 27  Dukes (n 7) 97 and 105–​15. Dukes proposes the labour constitution as an alternative framework for analysis, whilst pointing to the political and democratic deficits in the ‘law of the labour market’ account of labour law. 28  Wolfgang Streeck, Re-​Forming Capitalism: Institutional Change in the German Political Economy (OUP 2009). 29  Eric Tucker, ‘Renorming Labour Law:  Can We Escape Labour Law’s Recurring Regulatory Dilemmas?’ (2010) 39 Industrial Law Journal 99. 30  See Dukes (n 7) 114–​15. 31  Deakin himself would seem to recognise the problem here: Deakin (n 20) 1172–​3. 32  See Dukes (n 7) 114.

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Inequality of bargaining power has thus increased. As a result, labour law in most developed economies finds itself ‘in a conceptual and normative crisis’ and unable to respond to ‘vertical inequality [which has] increased to levels not seen since before the Second World War in the dominant developed countries’.33 For this reason, this chapter suggests looking beyond socio-​legal and economic justifications for the discipline and borrows from civic republican concepts of ‘social justice’ and ‘domination’ which are grounded in political philosophy, to consider whether such concepts can provide an alternative justificatory framework for labour laws. The purpose of this exercise is to test the purchase of this model as a supplementary basis for labour laws, rather than to attempt to cast doubt on, or critique, other key accounts for the subject: as such, this chapter does not claim that non-​domination provides an exhaustive account as a univocal theory or justification of labour law or that it ought to be treated as the exclusive value that the field ought to promote. Instead, the argument is presented within a spirit favouring a pluralistic scheme and the coexistence of different goals for the discipline, each of which may be brought out of the kitbag to justify different labour laws according to the context.

3.  The Position of Domination Theory in Contemporary Political Theory and Its Advantages Over Competing Philosophies (a) Introduction In a prescient essay, Collins identified how labour law study and theory has largely been deaf to developments in the field of political philosophy.34 Taking inspiration from Collins’s article, the ensuing narrative in this chapter is primarily intended as a modest attempt to fill such a gap in the labour law literature. In particular, the chapter takes its cue from the domination stream of civic republican school thought in contemporary political philosophy, whose more notable adherents include Pettit,35 Skinner,36 and Lovett.37 This contemporary political and social philosophy rooted in the civic republican tradition claims to offer up an alternative conception of freedom and social justice, with the latter defined as ‘how well members should compare with one another within the basic structure of the society’.38 In this section, the relationship between such civic republican thinking, ‘social justice’, ‘freedom’, and ‘non-​domination’ will be analysed, as will the connection between the latter and its capacity to be harnessed to further and justify—​as well as provide a descriptively

33  Judy Fudge, ‘Labour as a “Fictive Commodity” ’ in Davidov and Langille (n 1) 124. See also Thomas Piketty, Capital in the Twenty-​First Century (Harvard University Press 2014). 34  Hugh Collins, ‘The Productive Disintegration of Labour Law’ (1997) 26 Industrial Law Journal 295, 297. Of course, there are notable exceptions, eg Mantouvalou and Collins and Bogg and Estlund: Virginia Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Places’ (2008) 71 Modern Law Review 912, 925–​6 and 938–​9; Hugh Collins and Virginia Mantouvalou, ‘Redfearn v UK: Political Association and Dismissal’ (2013) 76 Modern Law Review 909, 922–​3, and Alan Bogg and Cynthia Estlund, ‘Freedom of Association and the Right to Contest: Getting Back to Basics’ in Alan Bogg and Tania Novitz (eds), Voices at Work (OUP 2014) 141–​3 and 151–​62. 35  Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1997) and Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012). 36  Quentin Skinner, Liberty before Liberalism (CUP 1998). 37  Frank Lovett, A General Theory of Domination and Justice (OUP 2010). 38  Philip Pettit, ‘Justice’ in David Sobel, Peter Vallentyne, and Steven Wall (eds), Oxford Studies in Political Philosophy, Vol I (OUP 2015) 9. Lovett defines a conception of social justice as ‘an account of what sort of basic structure would be best, from the point of view of justice . . . that [is] in respecting and upholding its institutions and practices in the process of living out their lives, people would, in the traditional expression, be giving each their due . . .’: Lovett (n 37) 158.

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contoured account of and normative programme for—​labour law. The subsequent subsections expound both the theories of Pettit and Lovett in more detail.

(b) Civic republicanism and ‘freedom’: Pettit To understand the concept of ‘domination’, we must first provide a sketch of the elementary attributes of the civic republican thread of political thought. Traditional civic republican philosophy provides an account of the concept of ‘freedom’ within the context of a framework that seeks to address questions of the legitimacy and justice of a social and political order or system.39 Writing within that scheme, Pettit’s understanding of ‘freedom’ contains three main ideas40 which are of relevance. First, the state must guarantee the equal freedom of its citizens. Freedom, in this context, is understood as ‘non-​domination’; meaning that citizens should be able to act freely, ‘undominated’—​not being subject to the potentially harmful power of the state or other citizens—​in the sphere of fundamental liberties. According to Pettit, ‘freedom as non-​domination’ requires not merely non-​interference in individuals’ life choices (including their contractual choices); it requires the ability to contest the decisions of others, both public and private actors, who wield power over one’s life and livelihood’.41 As such, an ‘unfree’ relationship, political, social, or otherwise, is one characterised by domination, and it is irrelevant whether ‘interference’ from outside is or is not being exercised over one’s liberty. For example, in the case of the benevolent master and his slave, notwithstanding the good behaviour and non-​interference of the master, the slave remains subject to the domination of the master, and as such, is ‘unfree’. Meanwhile, it is equally possible for a ‘free’ individual to be subject to routine external interference without domination, for example the borrower bound by crippling financial covenants in a loan agreement it freely committed itself to with a lender.42 This leads us on to the second idea underpinning the domination strand of civic republican thought: the state can best guarantee the freedom of its citizens from domination if it is subject to certain constitutional constraints usually associated with a mixed constitution. Such a constitution must guarantee a rule of law which provides for the equality of its citizens and a separation of powers. Only if both of these aspects are fulfilled can citizens be free from domination by the state and protected from domination by other citizens. Finally, the republication account of ‘freedom’ prescribes that citizens must be able to hold the state to account under such a constitution—​a ‘contestatory citizenry’43—​in order to ensure that a government promotes freedom and equality amongst its citizens without itself becoming dominant. One of the normative propositions for the concretisation of this ‘contestatory citizenry’ is to coordinate vertical state–​citizen and civic institutions and horizontal social relationships (such as employer and employee) around deliberative democratic principles or principles of participative communitarianism.44 This involves affording a measure of procedural protections to citizens and parties in private social relationships such as workers

39 See Philip Pettit, ‘Legitimacy and Justice in Republican Perspective’ (2012) 65 Current Legal Problems 59,  60–​5. 40  ibid 72–​4. For a more detailed discussion of these ideas, see Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012). 41  Bogg and Estlund (n 34) 142. 42  See Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1997) 51 and Pettit (n 39) 73–​4. 43  Bogg and Estlund (n 34) 143–​9. 44  See Dawn Oliver, Common Values and the Public–​Private Divide (Butterworths 1999) 5–​6 and Mark Freedland and Nicola Kountouris, ‘Common Law and Voice’ in Alan Bogg and Tania Novitz (eds), Voices at Work: Continuity and Change in the Common Law World (OUP 2014) 358–​9.

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in the context of workplace decisions taken by employers pursuant to the managerial prerogative, Pettit explicitly recognising employment as a relationship characterised by domination.45 Building on these ideas, republican theories require a state not only to establish a proper balance between the differential claims of citizens within its social order but also to ‘[publicly] entrench . . . [people] in their enjoyment [and exercise] of . . . basic liberties’46 so that they can enjoy freedom from domination. When freedom as non-​domination is assured, according to Pettit, citizens can ‘look [each] other . . . in the eye without reason for the fear or deference that a power of interference might inspire; they can walk tall and assume the public status . . . of being equal in this regard with the best.’47 Seen from this perspective, under Pettit’s scheme, a legitimate social order guaranteeing ‘freedom’ ought to extend to private, horizontal relations and would confer workers with certain procedural freedoms, empowering them to combine together in solidarity so that they can participate in decision-​making and contest workplace decisions affecting them via discussion and consultation with management. As such, a necessary precursor of any normatively legitimate social system is the promotion of voice and freedom of association via collective labour law,48 as well as collective bargaining law,49 and laws recognising industrial action.50 Only such a system can truly be legitimate in terms of Pettit’s normative framework, relying as it does on procedurally fair precepts which confer a say in favour of workers, for example by affording workers the freedom to ‘turn up’ the bargaining power on their side of the worker–​management equation,51 to restructure it in the direction of the worker, and which can be brought to bear on the substance of the terms of their contract through bilateral negotiations.

(c) Lovett’s theory of social justice as ‘non-​domination’ Non-​domination is presented as a theory of liberty by Pettit, but as a theory of social justice by Lovett.52 Pettit’s theory of non-​domination is primarily concerned with freedom in terms of the absence of domination (as opposed to the absence of interference which pertains in the mainstream account of ‘negative liberty’ propounded by both liberal-​contractualists and neoliberals), participatory democracy, and the establishment of procedural rights in:  (a) vertical relations between the individual and the state, for example democratic control and the right of individuals to participate in political decisions; and (b) horizontal private relationships in order to embed procedural entitlements, such as those secured through the process of procedural fairness in the case of unfair dismissal regulation in labour law. It can be contrasted with Lovett’s conception of a just social system. In Lovett’s scheme, social justice is treated as non-​domination, which is concerned with an evaluation as to whether the substance of a horizontal social relationship and the terms on which it is founded are structured in a way that is fair, desirable, or justifiable.

45  Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1999) 22; Philip Pettit, ‘Freedom in the Market’ (2006) 5 Politics, Philosophy and Economics 131, 142; and Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012) 99 and 115–​16. 46  Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012) 299. 47  ibid 114–​15. 48  ibid 111. 49  For the links between freedom of association, collective labour law, procedural fairness/​justice, and Pettit’s conception of freedom as non-​domination, see Bogg and Estlund (n 34) 142–​62. 50  Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1999) 142–​3. 51  Brian Langille, ‘Labour Law’s Back Pages’ in Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (Hart 2006) 20. 52  See Lovett (n 37) 9 and 173.

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(d) Lovett’s theory of ‘domination’: the essential elements According to Lovett, a person or group is ‘subject to domination to the extent that [he/​she​] they are dependent on a social relationship in which some other person or group wields arbitrary power over [him/​her/​them].’53 He then sets out three variables which influence the extent to which a particular social relationship, such as employer and employee, can be characterised as one grounded in domination. In shorthand, we can refer to these three elements as ‘dependency’, ‘power imbalance’, and ‘arbitrariness’. Starting first with ‘dependency’, party A must be dependent on his/​her social relationship with party B, which will often be financial in nature, but not necessarily always so. The greater the displacement cost to A involved in exiting the relationship,54 the higher A’s dependency. The cost of exit/​ level of dependency is calculated in terms of the degree to which A’s engagement in the social relationship with B is involuntary, which is equated to the net expected costs of exit; ie (a) the overall value of the existing position judged from the employee’s viewpoint, less (b) the overall value of the next best job in the labour market, plus (c) the transaction costs and risks of moving from the existing position to the alternative one.55 Seen from this perspective, the ‘typically high displacement’,56 financial, emotional, and other costs of the individual employee exiting the social relationship operate as a major deterrent from him/​her doing so. In this regard, the notion of dependency also covers well-​paid employees57 and clearly differs from the element of subordination that inheres in the employment relationship. What is also clear is that the costs of exit borne by the employee will routinely be of a higher order of magnitude than the replacement costs incurred by the employer. This phenomenon is attributable to the elasticity of the labour supply in the market whereby supply inevitably outstrips demand. The second important factor is the requirement for a ‘power imbalance’,58 in the sense that B must have greater coercive social or market power over A than A has over B.59 The greater the imbalance in social power, the greater the extent of the domination. The degree of social power wielded by B over A is measured by the degree to which B can induce or encourage a difference in A’s level of effort, by issuing credible threats or offers.60 This idea of ‘power imbalance’ is similar, albeit not quite identical, to the notion of ‘subordination’ evoked by the UK Supreme Court in Jivraj v Hishwani61 and Bates van Winkelhof v Clyde & Co LLP.62 In other words, the individual A must be able to show as sociological fact that he/​ she is in a hierarchical relationship with B, the hirer of his/​her labour, in the sense of some subservience to the direction of B that is attributable to a mismatch in power relations, with the potential for A’s dignity, liberty, home and private life, and sense of self-​esteem/​ respect to be overridden by B. It is this social, market, or coercive power of the employer to direct the employee which is so important and captured in the notion of the employer’s managerial prerogative. The final variable is ‘arbitrariness’, in the sense that the features of A and B’s social relationship are such that B has the ability to wield arbitrary power over A. Such power will be

53  ibid 119. 54  ibid  39–​40. 55  ibid 39 and 50. 56 Marc Moore, Corporate Governance in the Shadow of the State (Hart 2013) 45–​49 and Marc Moore, ‘Reconstituting Labour Market Freedom: Corporate Governance and Collective Worker Counterbalance’ (2014) 43 Industrial Law Journal 398, 416. 57  See Cécile Laborde, ‘Republicanism’ in Michael Freeden, Lyman Tower Sargent, and Marc Stears (eds), The Oxford Handbook of Political Ideologies (OUP 2013) 527. 58  The account of power advanced by Lovett is based on Hobbes, Weber, and Foucault, but not Gramsci, on which, see Lovett (n 37) 67–​74, 74–​8 and 83. 59  ibid  74–​8. 60  ibid  78–​9. 61  [2011] 1 WLR 1872. 62  [2014] 1WLR 2047, paras 2058G–​2059B per Baroness Hale.

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‘arbitrary’ to the extent that its ‘potential exercise is not externally constrained by effective [laws, policies, conventions,] rules, procedures, or goals that are common knowledge to all persons or groups concerned’.63 In other words, in the absence of external legal measures and effective constraints which operate to restrict B’s exercise of power or prerogative, B is said to wield ‘arbitrary’ power over A. To this end, B enjoys a social power which it can exercise according to its ‘will or pleasure’ over A without any effective external limits, ie that decisions may be taken or not taken for no, any, or a bad, reason.64 Lovett specifically identifies employees65 as being subject to an arbitrary social power imbalance at the hands of their employers.66 Finally, it should be stressed that the higher the aggregate of: (a) the dependency of A on B; (b) the power imbalance favouring B; and (c) the arbitrariness exercised by B, the greater the level of domination inherent in the social relationship between A and B. Arguably, it is the addition of the ‘arbitrariness’ and dependency factors that distinguish ‘domination’ from the traditional ‘inequality of bargaining power’ justification for legal intervention.

(e) The similarities and divergences between Pettit’s and Lovett’s accounts of domination Both Pettit’s and Lovett’s models form a key part of the domination thread of civic republican theory.67 Alongside the lexicon of ‘domination’, what they both share in common is the rejection of structuralism. Unshackled from the constraints of philosophy, many people would agree with the idea that economic, social, or political institutions such as the labour market or the structure of society can function in a way which dominates individuals. But Pettit and Lovett reject this. Instead, they recognise a conception of domination in terms of interpersonal relationships so that in an agentless context, ‘domination’ would be impossible. In this way, a bilateral relationship is required for both Pettit and Lovett before any domination can arise. But where they part company from each other is in three key areas. The first main distinction that can be drawn between them is precisely the measure that they use to calculate the reduction or elimination of domination, namely that Pettit’s model is designed to elicit ‘freedom’, whereas Lovett’s is concerned with a socially just order. Secondly, the minutiae of the criteria for the establishment of ‘domination’ differ in terms of their two schemes. For example, Pettit’s idea of arbitrary power is slightly different from that of Lovett. Moreover, Pettit does not include ‘dependency’ as a factor that is necessary

63  Lovett (n 37) 96–​7. 64  ibid 96. 65  As does Pettit in Pettit (n 50) 22, Philip Pettit, ‘Freedom in the Market’ (2006) 5 Politics, Philosophy and Economics 131, 142 and Pettit (n 46) 99 and 115–​16. 66  Lovett (n 37) 100. Lovett cites the employment-​at-​will doctrine in US labour law. To the extent that the ‘unrestricted reasonable notice rule’ was introduced in the nineteenth century in English law to afford employees a measure of common law protection, it represents only a limited dilution of the legal restrictions imposed on the arbitrary social power of employers to fire their employees. 67  Another strand of the civic republican philosophy is workplace or labour republicanism, with which we are not concerned here:  for details, see Gourevitch (Alex Gourevitch, ‘Labor and Republican Liberty’ (2011) 18 Constellations 431 and Alex Gourevitch, ‘Labor Republicanism and the Transformation of Work’ (2013) 41 Political Theory 591); Anderson (Elizabeth Anderson, ‘Equality and Freedom in the Workplace:  Recovering Republican Insights’ (2015) 31 Social Philosophy and Policy 48 and Elizabeth Anderson Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) (Princeton University Press 2017)); Hsieh (Nien-​hê Hsieh, ‘Rawlsian Justice and Workplace Republicanism’ (2005) 31 Social Theory and Practice 115); González-​ Ricoy (see Iñigo González-​Ricoy, ‘The Republican Case for Workplace Democracy’ (2014) 40 Social Theory and Practice 232); and Schuppert (see Fabian Schuppert, ‘Being Equal:  Analysing the Nature of Social Egalitarian Relationships’ in Carina Fourie, Fabian Schuppert, and Ivo Wallimann-​Helmer (eds), Social Equality: On What It Means to Be Equals (OUP 2015)).

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for a relationship to be characterised by ‘domination’, whereas Lovett does.68 The third way in which both models deviate concerns the normative prescriptions that they put forward for the reduction of domination. Lovett’s agenda for the diminution of domination involves the establishment of a universal basic income for all individuals (including workers) which would incentivise the generation of a frictionless and ease of exit from one’s job, and as such adheres much more faithfully to the rejection of structuralism. However, alongside individual worker’s rights to challenge at-​will dismissals, Pettit’s scheme embraces measures operating at the collective level which confer rights on bodies such as trade unions. It is challenging to square the latter with the anti-​structuralist account to the extent that such laws do not act directly on bilateral relationships tainted by domination to drive down the relevant dependency and arbitrary power dynamics. If anything, they only do so indirectly, but this jars with a relational conception of domination which can only justify laws that directly subject a particular relationship to interference.

(f) The advantages of Pettit’s and Lovett’s approaches over liberal theories Once abstracted from civic republicanism, Lovett’s theory of social justice as non-​ domination—​defined as ‘societies are just to the extent that their basic structure is organized so as to minimize the expected sum total domination experienced by their members, counting the domination of each member equally’69 provides a highly persuasive political and social account of justice designed to govern horizontal relations between ‘the individual citizens of a state, whether individually or in groups’.70 As labour laws are an integral component of a socially just system, they form a subset of any system of social justice, alongside social security/​welfare law, family law, and housing law. Herein lies the relevance of Lovett’s non-​domination-​based conception of social justice to labour laws. In particular, the major attraction of adapting Pettit’s or Lovett’s non-​domination strand of civic republicanism as a political grounding for labour laws is the extent to which it addresses some of the weaknesses in the high-​profile liberal-​contractualist stream of political thought. The liberal-​contractualism or modern liberalism of Rousseau, Locke, Kant, Mill, and Rawls which supplanted the republican mode of analysis in the early modern period is now in the mainstream of political and social thought, but struggles to account for policies whose objective is to combat the exploitation of labour, inequality, and poverty in the private sphere.71 Since liberals are in the habit of focusing on arranging the essential elements of a society’s structures in a way that is just, they tend to overlook the private arena. Therefore, it is not always clear how policies designed to achieve distributive justice and equality can fit within a framework of individual liberalism.72 For example, liberals are generally comfortable with 68  Contrast Lovett (n 37) 9, 119–​23 and chs 2–​4 with Pettit (n 50) 52–​6, Philip Pettit, ‘Freedom in the Market’ (2006) 5 Politics, Philosophy and Economics 131, 138 and Pettit (n 46) ch 1. However, Lovett’s reform agenda to achieve non-​domination is arguably overly restrained. 69  Lovett (n 37)  159. This enables us to distinguish social justice as non-​domination from utilitarianism, ie social justice as the maximisation of happiness, or efficiency-​based justifications of social justice which seek to maximise overall efficiency: ibid 160. 70  Philip Pettit, ‘Justice’ in Sobel, Vallentyne, and Wall (n 38) 11. 71  For other differences between the liberal-​contractualist conception of social justice and that of civic republicans, see Lovett (n 37) 169. 72  See: Will Kymlicka, Contemporary Political Philosophy: An Introduction (OUP 1990) 94–​6 and 102–​61; Alan Ryan, ‘Liberalism’ in Robert E Goodin, Philip Pettit, and Thomas Pogge (eds), A Companion to Contemporary Political Philosophy, Vol I (2nd edn, Blackwell 2007) 364–​5; Philip Pettit, ‘Analytical Philosophy’ in the same volume, 14–​15; Frank Lovett, ‘Domination and Distributive Justice’ (2009) 71 Journal of Politics 817, 818; Lovett (n 37) 7; and David Enoch, ‘Against Public Reason’ in Sobel, Vallentyne, and Wall (n 38) 123–​4.

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employees being dependent on their employers for a living so long as the basic social and political institutions and structures of the society are just and do not interfere in the liberty of employees, and the market is operating effectively to maximise the level of wages, salaries, and economic growth all round.73 Part of the explanation for the poverty of liberal-​contractualism in this regard is that adherents of this approach define liberty in the negative terms associated with eminent thinkers such as Hobbes,74 Bentham,75 Mill,76 and Berlin.77 This compelling account of liberty embraces the received notion that liberty should be defined as freedom from interference, subject to those exceptional circumstances where interference with an individual’s freedom is necessary to reduce the harm done to others or to prevent the deprivation of the liberty of others.78 However, at the very same time as modern liberals promote such a conception of negative liberty, they also advocate policies which are designed to ‘expand the freedom’ of individuals by ensuring that the state intervenes at a vertical level to introduce laws ‘emancipat[ing] individuals from the fear of [poverty,] hunger, unemployment, ill health and a miserable old age . . .’79 As demonstrated by Collins, the relationship established by the contract of employment is fundamentally illiberal insofar as it interferes in the freedom of employees by all manner of common law rules80 and via its inherent authority/​ power relation dynamic,81 thus embedding the subordination of employees to that of the employer.82 As such, although liberal-​contractualists advocate laws to expand the freedom of employees, the catch-​22 for this strand of liberalism is that any legal measures designed to reduce the subordination of the employee to the employer necessarily impinge on the freedom of the employer. These laws will inevitably amount to state interference and, as such, infringe and curtail the negative liberty of employers. Hence, liberal-​contractualism struggles to account for progressive liberal policies. Therein lies the paradox and internal contradiction in the position of the liberal-​contractualist who, one would think, ought to be naturally unsympathetic or at the very least, indisposed, to such policy prescriptions. Civic republicans take issue with this non-​interference-​based conception of liberty.83 Instead, as we saw when discussing Pettit’s scheme earlier, they define liberty as the absence of domination.84 In essence, if a state policy is, or suite of laws are, introduced that serve(s) to reduce the dependency of an individual A  on an imbalanced social relationship with another B, or limit the extent of the arbitrary discretion or power that B wields over A, then the domination of A will be constrained by that policy or law. In this way, aggregate domination is reduced, and the policy measures or laws that have been enacted are acting in a manner that is constitutive, rather than destructive, of freedom.85 As such, civic republicans, unlike neoliberals and some liberal-​contractualists, are completely comfortable with 73  See further Laborde (n 57) 526. 74  Thomas Hobbes, Leviathan (Richard Tuck ed, CUP 1991) ch 21 at 146. 75  John Bowring (ed), The Works of Jeremy Bentham (first published 1838–​43, Russell & Russell 1962). 76  John Stuart Mill, ‘On the Ground and Limits of the Laissez-​Faire or Non-​Interference Principle’ in Mill, Principles of Political Economy with some of their Applications to Social Philosophy (first published 1848, Longmans Green & Co 1994) 334. 77  Isiah Berlin, ‘Two Concepts of Liberty’ in Berlin, Liberty, Incorporating Four Essays on Liberty (Harry Hardy ed, OUP 2002) 166–​81. 78  See Lovett (n 37) 152–​3. 79  Alan Ryan, ‘Liberalism’ in Goodin, Pettit, and Pogge (n 72) 366–​8. 80  eg the implied terms enjoining employees to obey reasonable instructions and orders of the employer and obliging them to be loyal. 81  Herbert Simon, ‘A Formal Theory of the Employment Relationship’ (1951) 19 Econometrica 293, 293–​4. This authority/​power relation can be partly attributed to the incomplete nature of the contract of employment, on which, see William Brown and David Rea, ‘The Changing Nature of the Employment Contract’ (1995) 42 Scottish Journal of Political Economy 363, 363–​4. 82  See Hugh Collins, ‘Is the Contract of Employment Illiberal’ in this volume. 83  See Lovett (n 37) 153–​4. 84  ibid 155 and Laborde (n 57) 518–​19. 85  Lovett (n 37) 156.

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the idea of being ‘free under the law’.86 Implicit in this idea of interference ‘under the law’ is the recognition that although there has been a reduction in the negative liberty of individuals or legal persons such as B, the extent of the increase in the state’s domination over them is negligible to limited, and the sum total of freedom is enhanced and expanded overall inasmuch as such intervention results in a diminution of the level of dependency experienced by A, the power imbalance wielded by B over A, or the degree of arbitrariness enjoyed by B. Here, we can see a prima facie civic republican justification for some mandatory labour laws—​such as discrimination/​equality laws, wrongful or unfair dismissal/​discharge laws, and redistributive laws87 such as national minimum wages—​which, owing to the fact that they directly tone down the dependency of the employee or arbitrary power imbalance, curtail the sphere of activity and range of choices open to employers, and which otherwise might cause liberals serious misgivings. This prescription explains why civic republicanism places emphasis on substantive relational rights and social concerns addressed by labour laws88 that transcend mere individualistic considerations. The import of the concept of ‘justice as non-​domination’ viewed specifically through the lens of labour law lies primarily in its impact on the substantive fairness of the bargain concluded between management and an employee. To the extent that substantive interferences prescribed by law rupture the freedom of contract doctrine, civic republicans ought to be relaxed about this, so long as the domination to which the employee is subject is diminished and the employer’s vertical position vis-​à-​vis the state is not so radically altered as to give rise to a relationship of domination. In this way, Lovett’s framework can account for the conferral of substantive rights in favour of legal persons in employment relationships. For example, redistributive policies can be supported on the basis of the civic republican conception of labour laws as constitutive of social justice.

4.  Descriptive Accuracy of Non-​Domination Theory in Terms of Labour Law To be useful as a justificatory pillar for labour laws, the conception of social justice as ‘non-​ domination’ must be descriptively accurate. That is to say that one must evaluate the degree to which the account of ‘social justice as non-​domination’ presents an accurate descriptive account of: (a) the range of individuals engaged in the personal provision of work that are caught by the protective coverage of labour laws; and (b)  the disparate topics contained within the regulatory sweep of labour laws. This raises the question whether it can justifiably be claimed that each of the policy areas comprised within what we traditionally understand as the field of ‘labour law’ can be understood as rules or principles intended to directly drive down employee dependency, or the extent of the arbitrary imbalance in power inherent within the employment relationship.89 Alternatively, are they motivated by some other policy choice or principle? We first turn to examine whether the non-​domination framework advanced by Lovett can explain the range of individuals personally providing work that fall within the purview of employment laws. To answer this question, we must apply the three variables identified by Lovett at Section 3(d) above and test their descriptive accuracy against the standard 86  Laborde (n 57) 523. 87  For the relationship between ‘non-​domination’ and distributive justice, see Lovett (n 72) 817. 88  Richard Dagger, ‘Neo-​Republicanism and the Civic economy’ (2006) 5 Politics, Philosophy and Economics 151, 155 and 162. 89  Lovett (n 37) 120.

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employment relationship and other personal work relationships regulated by labour law. In other words, to what extent are each of these three elements duly reflected in employment and other personal work relationships? As such, if we examine the employment relationship in the abstract (and a jurisdiction-​neutral context) for the presence of the above three elements, we find that they are generally in place. The employer is in the position to exercise social and market power to coordinate the activities of the employee in the workplace which, in the absence of law, would be subject to no effective or external legal constraints. This translates into the subordination of the employee to the employer that is essential to that relationship. The employee is also dependent on the employer inasmuch as the exit costs are sufficiently high to lock the employee into the working relationship because of the supply and demand mechanics of the labour market. Finally, the managerial prerogative that inheres in the contract of employment serves to afford the employer a degree of arbitrary discretion that operates without outside effectual checks. To that extent, if we are to attempt to formulate a descriptively useful account of, as well as a justificatory framework for, UK labour law, we can think of it as a body of rules and principles whose objective is to minimise the degree of domination exerted by the employer over the employee within the context of the employment relationship. This is achieved by crafting rules which seek to: (a) subject the employer’s power of direction and coordination, as well the degree of subordination of the employee, to external and effective controls; (b) level down the degree of dependency of the employee on the employer by modifying the operation of the labour market; and/​or (c) adjust the level of arbitrary discretion enjoyed by the employer by subjecting it to constraints. These rules function at a substantive level. As such, a ‘socially just’ system of individual labour laws can be considered as one which seeks to offset the imbalance of social, coercive, or market power inherent within the relationship by conferring various rights on employees through intervention in the substance of the terms and conditions of the employment contract. Of course, this evaluation only takes us so far. It simply asks whether individuals who are ‘employees’ have a relationship with their employers that can be characterised by domination. However, what of those persons providing a personal service to an employing entity who are not employees but sufficiently semi-​dependent on that employing entity to warrant their categorisation as lying somewhere between the two extremes of the contract of employment and the commercial contract for services? For example, some jurisdictions like the UK specifically recognise intermediate work categories:  UK employment law would identify such persons as ‘workers’90 or persons engaged on the basis of a ‘contract personally to do work’.91 Persons falling inside these categories are entitled to some employment protection, albeit not as extensive in scope as that enjoyed by employees. The question is whether these intermediate personal work relationships can be cast as being exemplified by domination, to which the obvious response is ‘yes’, when their attributes are evaluated in terms of the three criteria outlined at Section 3(d) above, namely: (a) dependency; (b)  power imbalance; and (c)  arbitrariness. Lovett himself recognises92 that domination presents itself in varying degrees and social working relationships can therefore be discriminated against depending on the degree to which each of these three factors are present in a particular relationship.

90  Trade Union and Labour Relations (Consolidation) Act 1992, s 296(1)(b); Employment Rights Act 1996, s 230(3)(b); National Minimum Wage Act 1998, s 54(3); Working Time Regulations 1998, SI 1998/​1833, reg 2(1); Part-​Tine Workers (Prevention of Less Favourable Treatment) Regulations 2000, SI 2000/​1551, reg 1(2); and Pensions Act 2008, s 88. 91  Equality Act 2010, s 83(2)(a). 92  Lovett (n 37) 120–​1.

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Once it is clear that the persons covered by labour law protections can be explained in terms of the domination-​based conception, we must then ask to what extent the concept accurately depicts the variety and range of topics consisting within the field of labour law. UK labour law will be used as a proxy for the purposes of this analysis and for reasons of space constraints, only some of the more obvious topics included within the compass of labour laws will be discussed. For example, UK labour law covers a broad range of topics such as national minimum wage laws, equal pay laws, and working time regulations. National minimum wage laws prescribe a standard minimum hourly rate for wages throughout the UK, the equal pay laws ensure parity of pay for equal work irrespective of gender, and the regulations governing working time govern the conditions of the workplace, annual leave, holiday pay, and the frequency of rest breaks throughout the worker’s day and working week. Each of these laws have in common the fact that they limit the degree to which employers can set the market rate for wages, or dictate the working conditions of employees, which would otherwise be adopted by the market. Likewise, the term of mutual trust and confidence that is implied by the common law in the UK to regulate the terms of the employment contract is partly motivated by the desire to subject the ingrained arbitrary decision-​making power of the employer to certain standards. Of course, a significant and pressing question is how and whether—​in the absence of a detailed explanation—​it is possible to draw a sufficiently robust connection between civic republican theory and specific labour laws such as the national minimum wage, equal pay laws, the regulation of working time, and the trust and confidence implied term. Whilst this issue of how we get from the abstract to the particular is a matter of considerable moment, only a brief sketch of a response is offered here. One plausible way to establish such a link is to focus on the impact of those laws and then assess whether their effect is one which chimes with the domination-​based narrative of civic republican political theory. By way of illustration, there is a prima facie argument that the aforementioned employment laws tie in with the conception of ‘justice as non-​domination’ to the extent that they minimise the opportunities available to an employer to exercise arbitrary power in what is an inherently imbalanced social relationship and where the weaker party, ie the employee, is highly dependent on that relationship. As such, the modest claim can be made that the particular policy areas of minimum wage, equal pay, and working time regulation and the implied term of mutual trust and confidence that are comprised within UK labour law can be understood as rules, principles, and doctrines forged by the common law and domestic UK legislation which are concerned with the minimisation of the domination exerted by an employer over an employee.

5.  A Normative Programme for Labour Laws In the previous section, we provided a fairly rough sketch as to how Lovett’s formulation of social justice as non-​domination can account for those individuals falling within the protective purview of labour laws. We also examined how it could assist our understanding of what the discipline actually includes in content and scope in terms of UK law. The question, however, is whether it also has the capacity to construct a strong justificatory pillar for labour laws by providing a coherent narrative for a normative agenda or programme for the reform of the field. As such, at this juncture in the discussion, we are moving from the ‘is’ to the ‘ought’. To put the point another way, if an explanation of labour laws as rules minimising domination is correct in descriptive terms, in what way can this assist us in the production of a normative framework that can be applied to justify specific labour laws, as well as to enable us to formulate how it ought to be conceived, and what ought to be

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included in its scope, coverage, and content?93 In essence, this is a debate about the normative value or salience of the concept. It is suggested here that the technique of adopting the ‘reflective equilibrium’ case method—​as advanced by Rawls94—​is a useful way of testing and establishing the potential normative utility of casting labour laws as rules or principles which ought to have the objective of minimising the degree of domination exerted by B over A—​where B is a social actor who wields an arbitrary imbalance of power over A, a dependent social actor. The reflective equilibrium technique demands that we enquire what range of individuals our intuition tells us ought to be protected by labour laws, including what the content of labour laws ought to be, for example by identifying a range of topics which our intuition suggests ought to fall within its scope and the extent of its coverage. Once such considered judgements are ‘reached after due consideration, free from the influence of special interests and other disturbing factors’,95 it is then incumbent on us to enquire whether the formulation of non-​domination expounded here can be applied as a sorting principle to provide a persuasive explanation for that range of individuals and topics as fully as possible. The point being made here can be particularised more precisely in terms of two sequential questions. First, if we identify the range of individuals labouring under an arrangement with an employing entity for the personal performance of work that our intuition suggests ought to be covered by labour laws, can we conceive of those social relationships as ones characterised by dependency, a social power imbalance, and the potential for arbitrary decision-​ making? Secondly, if we were to identify the policy areas that our intuition directs ought to be included within labour law, then do the employment protections conferred by such labour laws have the effect of reducing the levels of dependency, arbitrariness, and social power experienced by the individuals in the social relationships identified as worthy of legal protection pursuant to the first question? If our answer to both of these questions is ‘yes’, then domination-​based reasoning abstracted from the civic republication tradition can be seen as a useful principle to justify the normative coverage and scope of labour laws.96 In order to substantiate the assertion that the domination-​based conception can be established as normatively valuable, we turn first to the categorisation of the class of individuals engaged in the personal performance of work that our intuition tells us ought to be covered by labour laws. First, it is contended that employees engaged on the basis of a contract of employment ought to be included pursuant to this process for the reason that the contract of employment can be characterised as a contract imbued with an authoritarian structure and power relation dimension to the benefit of the employer. Likewise, intuitively, we would point to semi-​dependent workers engaged on the basis of ‘zero-​hours’97 or other types of ‘casual’98 contracts for the personal performance of work, where the workers are 93  This resonates with the importance of understanding the goals and objectives of labour law, on which, see Guy Davidov, ‘Articulating the Idea of Labour Law: Why and How’ (2012) 3 European Labour Law Journal 130 and Davidov (n 16) 13–​33. 94  John Rawls, ‘Outline for a Decision Procedure in Ethics’ (1951) 60 The Philosophical Review 177; John Rawls, A Theory of Justice (Harvard University Press 1971) 46–​53; Lovett (n 37) 27. For a critique of this ‘intuitive’ approach on the basis that it ingrains moral prejudices, see Amalia Amaya, The Tapestry of Reason (Hart 2015) 6 and 361–​417. 95  Philip Pettit, ‘Analytical Philosophy’ in Goodin, Pettit, and Pogge (n 72) 11. 96  This is similar to the approach adopted by the ‘law of the labour market’ scholars who argue that the justification for labour law should be grounded in terms of the stated policy aims. 97  A ‘zero-​hours’ contract is a contract for the personal performance of work that provides that the individual service provider has no guaranteed hours of work and that he/​she agrees to be potentially available for work, although not obliged to accept any work when offered by the hirer of his/​her labour. 98  A ‘casual’ contract is a contract for the personal performance of work that provides that the individual service provider is not obliged to accept any work when offered by the hirer of his/​her labour and that the latter is not obliged to make any work available to that individual.

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left exposed or vulnerable to exploitation, or in a precarious position of potential disadvantage. Meanwhile, it is argued that our intuition would tend towards the exclusion of the genuinely self-​employed from the protective cloak of labour laws on the basis that such individuals, by and large, operate a commercial business and take the risk of profit or loss. Having identified employees and semi-​dependent workers as classes of individual which our innate judgement identifies as deserving of employment protection, the next step in the process is to test whether persons involved in these relationships can be cast as dependent on the relevant employing entity and subject to power imbalances and arbitrary decision-​ making. For semi-​dependent workers, this is undoubtedly so, given the general absence of control that they experience over their working hours and duties, together with the tendency for their pay to be low and dependency to be high. Although employees may have slightly more scope to negotiate with the employer, the degree of arbitrariness in decision-​making to which they are subject suggests that they are also involved in relationships characterised by domination. These relationships can be contrasted with the independent contractor plumber or IT consultant, where the respective levels of dependency, power imbalance, and arbitrariness are likely to be much lower. Seen from this perspective, the results of the application of the domination-​based criterion marry up with our intuitive response to the first question in the preceding paragraph. Indeed, once the reflective equilibrium technique is applied and the social relationships identified as intuitively deserving of labour law protection are viewed against an evaluation for the presence of the three characteristic hallmarks of domination, it can be seen that the range of individuals and social relationships are likely to be overinclusive of the current state of labour law in many jurisdictions. To that extent, the domination construct can be perceived as opening up avenues for reform in the sense of extending the protective coverage of labour laws.99 We now turn to probe our intuition regarding the various policy fields that ought to be contained within the subject of labour law. For reasons of space constraints, only three particular topics will be chosen here. First, it seems reasonable to conceive of labour laws as norms that ought to be partly designed to provide certain procedural and/​or substantive protections for employees and semi-​dependent workers in the context of dismissal/​ discharge, for example wrongful and unfair dismissal/​discharge laws. Likewise, our intuition would also suggest certain pay protection regulations, for example minimum wage and wage protection norms, and rules to police discretionary powers retained by the employer and ensure that employing entities treat employees consistently and provide reasonable notice of proposed variations in managerial practices. Having established that these areas for regulation accord with our intuition, the question is whether wrongful and unfair dismissal/​discharge laws, pay protection regulations, and good faith controls, such as the common law implied term of mutual trust and confidence in UK labour law, function in a manner which reduces the domination of the employee or worker. First, as recognised by Pettit,100 wrongful and unfair dismissal/​discharge laws minimise such domination by restricting the power of the employer to fire at will, for bad, or no cause at all. Meanwhile, as demonstrated by Davidov,101 minimum wage legislation reduces the dependency of the employee or semi-​dependent workers on the employing entity by introducing a measure of 99  Of course, whilst this takes labour law in a progressive worker-​friendly direction, it may dull the edge of the claims made by the discipline: Mark Freedland, ‘From the Contract of Employment to the Personal Work Nexus’ (2006) 35 Industrial Law Journal 1, 28–​9; Manfred Weiss, ‘Re-​Inventing Labour Law?’ in Davidov and Langille (n 1) 48–​9. 100  Pettit (n 46) 115. 101  Davidov (n 16) 57–​8 and 77–​82; Guy Davidov, ‘A Purposive Interpretation of the National Minimum Wage Act’ (2009) 72 Modern Law Review 581, 586–​94.

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redistribution of resources and power from the latter to the former in the relationship. As for the implied terms of good faith or mutual trust and confidence, to the extent that they control the power imbalance in personal work relationships and the level of arbitrariness exerted by the employer, it is abundantly clear that part of their ethos is to produce a diminution in domination.

6. Conclusion The approach pursued in this chapter represents an attempt to promote a research agenda for the progressive reform of labour law which affirms a prime position for political theory and democracy in the various justifications and narratives for regulatory intervention. It has sought to achieve this by pinpointing the evident utility of civic republican non-​ domination ideology, which is an approach to political theory that is democratically thick, being counterpoised somewhere between the modern liberal-​contractualist theory expounded by adherents such as Rawls,102 on the one hand,103 and the communitarianism of political philosophers such as Sandel,104 on the other.105 By harnessing this particular school of political thought, the aspiration is that worker-​protective concerns can be restored to a central position in the decision-​making processes of state, supranational, and economic agents.106 Its strong relationship with democratic principles also ensures it is an approach that enhances the claims of labour in much the same way as casting labour laws as human rights increases the purchase of social policies.107 In that vein, it is contended that it warrants a greater degree of attention as a justification for labour laws than it has hitherto received, with future research focusing on the weaknesses and strengths of the theory in greater depth relative to the other traditional rationales for intervention, including whether the central organising device of the contract of employment is the most fitting, and sufficiently flexible institution, to act as an appropriate manifestation of the conceptualisation of labour law as non-​domination.

102  John Rawls, A Theory of Justice (OUP 1971). 103  Pettit (n 95) 9–​13. 104  Michael Sandel, Liberalism and the Limits of Justice (CUP 1982). See also Ryan (n 79) 360–​1. 105  See Laborde (n 57) 516 and 519–​20. 106  See Dukes (n 7) 196. 107  Colin F Fenwick and Tonia Novitz, ‘Conclusion: Regulating to Protect Workers’ Human Rights’ in Fenwick and Novitz (eds), Human Rights at Work: Perspectives on Law and Regulation (Hart 2010) 587–​8.

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7 Human Rights as Foundations for Labour Law Joe Atkinson 1. Introduction Doubts over the soundness of traditional justifications of labour law have sparked an increased interest in the theoretical aspects of the discipline. Understanding the principles and values underpinning labour law is necessary to ensure our analysis of the law and proposals for reform are sound. In addition, strong normative foundations are needed to prevent the discipline being undermined by its opponents, in both the legal and political arenas. A  divide has emerged between scholars who have attempted to reinvigorate old narratives about the foundations and purpose of labour law, and those who have opted instead to replace them. One potential new source of foundations is to develop a rights-​based justification rather than focusing on the more traditional approaches of social justice or efficiency.1 It might be possible to develop a rights-​based foundation for labour law using theories of constitutional rights, or theories of justice,2 and private law theory can also provide useful insights.3 Rather than pursuing these options, however, this chapter explores the potential for human rights to provide the normative foundations of labour law. In this chapter the term human rights is primarily used in a moral rather than in a legalistic sense. Human rights are taken to be universal moral rights that make up an important and distinct body of norms, and which exist independently of any legal or institutional recognition. The lists of rights contained in international treaties or domestic constitutions are not taken as determining what counts as a human right. Instead, questions about which rights are human rights, and the nature and content of these rights, must be answered by a philosophical theory. Although the duties generated by human rights do not depend on their recognition by the state, human rights are norms which society should endeavour to realise and fulfil for all people, and this will often involve the creation of legal protections, policy initiatives, and social institutions. There are at least two reasons why it is important to consider whether human rights can provide a philosophically sound underpinning for labour law. First, given that labour law is frequently aligned with human rights in practice, it is important to know whether this is legitimate as a matter of theory. Many human rights documents contain rights relevant to labour lawyers, and labour law issues are frequently discussed and analysed through the lens of human rights. Despite this, there has been little research into the relationship between labour law and human rights on the theoretical level, or the philosophical legitimacy of using human rights to provide the foundations for labour law. But without sound philosophical arguments we cannot in good faith use ideas of human rights to provide the 1  Hugh Collins, ‘Theories of Rights as Justifications for Labour Law’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011). 2 ibid. 3  Alan Bogg, ‘Labour, Love and Futility: Philosophical Perspectives on Labour Law’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 7. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 7 © Joe Atkinson 2018. Published 2018 by Oxford University Press.

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foundations of labour law.4 Using human rights as foundations without making these supporting arguments will undermine the justification of labour law and make it more vulnerable to attack. Human rights may be seen as attractive foundations for labour law because of their normative force and political salience, but a coherent philosophical justification is needed if human rights are to provide firm foundations. The second reason this enquiry is important is that it is necessary for assessing whether human rights can provide attractive foundations for labour law. In order to decide this we first need to establish what forms of regulation are justified under a human rights approach, and what a human rights-​based labour law might look like. Much of the current literature discusses the benefits and drawbacks of using existing human rights mechanisms to protect workers, but this instrumental question is different to assessing whether human rights can provide adequate normative foundations.5 This chapter aims to give an overview of contemporary perspectives on human rights, and map out their implications for labour law. Section 2 briefly considers the current landscape regarding human rights as a foundational perspective for labour law. Sections 3 and 4 then evaluate the potential of some prominent theories of human rights for providing foundations for labour law. Section 3 considers the place of labour law within theories of human rights that see them as triggers for action in the international arena, and Section 4 does the same for theories that see them in purely moral terms. These approaches can only be briefly summarised here, and there are many other theories that might feasibly provide human rights foundations for labour law. The theories discussed were chosen not because they are necessarily the most persuasive, but because they are among the most prominent, and taken together they provide a good introduction to philosophical perspectives on human rights. The focus of this chapter is on examining the likely implications of each conception for labour law rather than a detailed assessment of their merits. Clearly, however, a theory must be coherent and plausible in order to provide the foundations that labour law needs. Despite these caveats, this chapter aims to lay the groundwork for, and indicate the potential of, future research on human rights as a foundational perspective for labour law.

2.  Labour Law and Human Rights Labour law is already aligned with, and influenced by, ideas of human rights, so it seems natural to consider their potential for providing the foundations of labour law. There are provisions relating to both individual and collective labour law in international human rights documents6 and domestic constitutions.7 Although human rights mechanisms are 4  Collins (n 1) 144. 5  Virginia Mantouvalou, ‘Are Labour Rights Human Rights’ (2012) 3 European Labour Law Journal 151. 6  Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Arts 23–​24; International Covenant of Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3 (ICESCR), Art 7; Charter of Fundamental Rights of the European Union (26 October 2012), 2012/​C 326/​02, Ch 4; European Social Charter (Revised) (adopted 3 May 1996, entered into force 1 July 1999), ETS 163, Arts 1–​9; American Declaration of the Rights and Duties of Man, OAS Res XXX adopted by the Ninth International Conference of American States (1948) reprinted in Basic Documents Pertaining to Human Rights in the Inter-​American System, OEA/​Ser L V/​II.82 Doc 6 Rev 1, 17 (1992), Art 14; African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986), (1982) 21 ILM 58 (African Charter), Art 15; Arab Charter on Human Rights (adopted 27 June 1981, entered into force 21 October 1986), CAB/​LEG/​67/​3 rev. 5, 21 ILM 58 (1982), Art 34; Association of Southeast Asian Nations Human Rights Declaration (adopted 18 November 2012), Art 27; Social Charter of the Americas (adopted 18 October 1961, entered into force 26 February 1965), ETS 35, Art 8. 7  The right to work is in 136 domestic constitutions, to strike in 98, to rest and leisure in 81, to equal pay in 100, to a safe work environment in 85, and 77 contain anti-​child labour provisions. See ‘The Constitute Project’ .

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not always effective at protecting workers in courts, they have been used with some success,8 and the rights to collectively bargain and to strike are recognised by the European Court of Human Rights.9 In addition, human rights rhetoric has been adopted by trade unions and other organisations when campaigning for improvements in working conditions.10 The UN Guiding Principles on Business and Human Rights, and the growing debate over corporate responsibility for human rights, provide further examples of the increasing links between the two fields.11 This alignment of labour law and human rights is intuitively appealing; both are motivated by a desire to improve the human condition, and both are often seen as protecting human dignity. Furthermore, the strength and salience of human rights seems to offer the chance to settle long-​running disputes regarding the justification of labour law. Despite this, there has until recently been little attention paid to the philosophical legitimacy of justifying labour law using the idea of human rights. Most literature that assesses human rights as a foundational perspective for labour law does so from an instrumentalist perspective, which considers whether human rights mechanisms can be used to effectively protect workers’ rights and endorses human rights foundations to the extent that this is possible.12 An instrumentalist assessment of whether human rights can provide adequate foundations for labour law presents a mixed picture, and there is an ongoing debate over the benefits and drawbacks of framing labour law in terms of human rights.13 Such arguments are important, and will likely influence whether it is a good idea to adopt human rights as a foundational perspective, but they are distinct from the question of whether human rights can provide philosophical foundations for labour law. Human rights can be capable of justifying labour law at the normative level even if existing human rights mechanisms do not adequately protect workers. This chapter takes what Mantouvalou calls the normative approach, which examines human rights as a matter of theory and considers their implications for labour law.14 Several scholars who have considered the philosophical alignment of labour law with human rights have raised objections to the legitimacy of this approach. These generally take the form of identifying differences between human rights and labour rights, and arguing that these make it impossible for human rights to provide foundations for labour law.15 So human rights are said to be timeless, universally applicable standards of the highest moral importance, whereas labour law norms are less urgent, and neither timeless nor universally applicable. Other objections include the argument that human rights regulate the ‘vertical’

8  Kevin Kolben, ‘Labor Rights as Human Rights’ (2009) 50 Virginia Journal of International Law 449; Astrid Sanders, ‘A “Right” to Legal Representation (in the Workplace) during Disciplinary Proceedings?’ (2010) 39 Industrial Law Journal 166; Mantouvalou (n 5). 9  Demir and Baykara v Turkey (2009) 48 EHRR 54; KD Ewing and John Hendy, ‘The Dramatic Implications of Demir and Baykara’ (2010) 39 Industrial Law Journal 2. 10  Kolben (n 8); Mantouvalou (n 5). 11  Surya Deva and David Bilchitz, Human Rights Obligations of Business: Beyond the Corporate Responsibility to Respect? (CUP 2013); Anita Ramasastry, ‘Corporate Social Responsibility Versus Business and Human Rights: Bridging the Gap Between Responsibility and Accountability’ (2015) 14 Journal of Human Rights 237. 12  Mantouvalou (n 5) 156. 13  Jay Youngdahl, ‘Solidarity First:  Labor Rights Are Not the Same as Human Rights’ (2009) 18 New Labor Forum 31; Lance Compa, ‘Solidarity and Human Rights: A Response to Youngdahl’ (2009) 18 New Labor Forum 38; Kolben (n 8); Guy Mundlak, ‘Human Rights and Labor Rights: Why Don’t the Two Tracks Meet’ (2012) 34 Comparative Labor Law and Policy Journal 217; KD Ewing and John Hendy QC, ‘The Trade Union Act 2016 and the Failure of Human Rights’ (2016) 45 Industrial Law Journal 391. 14  Mantouvalou (n 5) 152; Pablo Gilabert, ‘Labor Human Rights and Human Dignity’ (2016) 42 Philosophy and Social Criticism 171. 15  Guy Mundlak, ‘Industrial Citizenship, Social Citizenship, Corporate Citizenship:  I Just Want My Wages’ (2007) 8 Theoretical Inquiries in Law 719; Kolben (n 8); Collins (n 1).

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relationship between individuals and the state while labour law is primarily concerned with the ‘horizontal’ relationship between employer and employee, and that human rights are too individualistic to accommodate the collective aspects of labour law. Many of these objections can be responded to persuasively.16 However, it is often unclear what philosophical conception of human rights is being used in the existing literature, which makes it impossible to know why human rights must have the particular characteristics that are attributed to them. One response to arguments such as ‘human rights are too individualistic to provide foundations for labour law’ is simply to say that many theories of human rights do take our social interests into account, and can therefore justify collective labour law regulation.17 But this response is not available unless we are clear on what philosophical conception of human rights we are using, and the nature and characteristics of human rights under this theory. To avoid this problem, this chapter examines particular conceptions of human rights, mapping the extent to which each might provide the foundations of labour law. There is no agreement between theorists as to the best philosophical conception of human rights, and almost everything about them is contested; from their nature and foundations to their very existence. However, there is some degree of consensus among philosophers of human rights that they are individual entitlements, whose normative force does not depend on legal or political recognition, that are distinct from other norms in some important way, and which all people hold equally. The main division in contemporary human rights discourse is between political and naturalistic approaches.18 Political theories view human rights as a postwar phenomenon, and take the modern practice of human rights as their starting point for developing a theory. These theories define human rights as norms that have a particular political function in the domestic or international arena. In contrast, naturalistic theories view human rights as the modern equivalents of natural rights, and define them as moral rights held in virtue of humanity, with no inherent political function. As we shall see, substantial differences exist between particular conceptions within each of these broad categories. But there is also potential for overlap between political and naturalistic approaches. A political theory might see human rights as universal moral rights that have some additional political function, and naturalistic theories deny only that human rights by their nature have a political function, not that they never have important political implications. Before moving on to consider some political and naturalistic conceptions of human rights, it is worth noting that there are at least two dimensions to the relationship between labour law and human rights. First, labour law has an important role to play in ensuring that human rights, such as privacy and freedom of expression, are properly protected in the workplace. Literature that looks at the impact of human rights on labour law is often written from this perspective.19 Under this approach, the role or purpose of labour law is, at least in part, to protect human rights. The second approach is different, and focuses on the potential for human rights to provide the foundations of labour law. Protecting the privacy, 16  Mantouvalou (n 5). 17  Hugh Collins and Virginia Mantouvalou, ‘Human Rights and the Contract for Employment’ in Alan Bogg, Mark Freedland, and Nicola Countouris (eds), The Contract of Employment (OUP 2016). 18 S Matthew Liao and Adam Etinson, ‘Political and Naturalistic Conceptions of Human Rights:  A False Polemic?’ (2012) 9 Journal of Moral Philosophy 327; Rowan Cruft, S Matthew Liao, and Massimo Renzo, ‘An Overview’ in Rowan Cruft, S Matthew Liao, and Massimo Renzo (eds), Philosophical Foundations of Human Rights (OUP 2015). 19  Hugh Collins, ‘The Protection of Civil Liberties in the Workplace’ (2006) 69 Modern Law Review 619; Virginia Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public Spaces’ (2008) 71 Modern Law Review 912.

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expression, and religious freedom of employees is undoubtedly an important part of labour law. But if human rights cannot also justify core elements of labour law, such as protections from dismissal or trade union rights, then it is hard to see them as providing the foundations of the discipline. Enquiries into human rights and labour law could therefore focus on either of these dimensions; the protection of human rights and civil liberties at work, or the question of whether human rights can provide the foundations of labour law. This chapter is primarily concerned with the latter approach. That said, no firm dividing line exists between thinking one important aim of labour law is the protection of human rights, and viewing human rights as the foundations for labour law. For example, these views collapse into each other to some extent if rights to fair remuneration, decent working conditions, and to collectively bargain and go on strike are human rights. Even if this is not the case, some core elements of labour law might be justified using linkage arguments and human rights. For example, the right to life could require the introduction of health and safety regulations in the workplace, and the right to freedom from slavery and forced labour requires the introduction of some minimum labour standards.20 Similarly, the right to freedom from discrimination will require the introduction of a substantial body of equality norms in the sphere of employment. Some protection against dismissal can also be justified using linkage arguments, as allowing employees to be dismissed for exercising their rights to privacy or religion prevents people from effectively enjoying those rights.21 Collins points out that the rights to free choice of occupation, decent working conditions, and protection from unemployment might all be seen as elements of more general rights, namely to liberty, dignity, and subsistence.22 The line between ‘protecting human rights at work’ and ‘human rights as the foundations of labour law’ is therefore a blurred one. However, if human rights are to provide the philosophical foundations of labour law, they must mandate and require the introduction of core labour law norms. A theory of human rights that demands the protection of civil liberties in the workplace certainly does valuable work, and will be relevant for labour law. But it cannot provide a foundational perspective for the discipline if it does not also justify elements such as protection from dismissal, decent working conditions, and the freedoms to strike and bargain collectively. The remainder of this chapter focuses on this question, identifying which, if any, labour law protections are justified by some prominent theories of human rights.

3.  Political Theories of Human Rights Human rights may have become an ‘ethical lingua-​franca’23 but until recently they were relatively neglected by philosophers. This is no longer the case, and there now is a voluminous body of philosophical literature in this area. A philosophical conception of human rights must make the term sufficiently determinate to be useful, by making their existence conditions clear, setting out the grounds for deciding their content, and indicating how conflicts between rights can be resolved.24 It should also address the questions of what type of statement a declaration of human rights makes, how the rights it entails should 20  Siliadin v France [2005] ECHR 545. 21  Redfearn v UK [2012] ECHR 1878. 22  Hugh Collins, ‘Is There a Human Right to Work?’ in Virginia Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Bloomsbury 2014) 24. 23  John Tasioulas, ‘The Moral Reality of Human Rights’ in Thomas Pogge (ed), Freedom From Poverty as a Human Right: Who Owes What to the Very Poor? (OUP 2007) 75; Joseph Raz, ‘Human Rights Without Foundations’ in John Tasioulas and Samantha Besson (eds), The Philosophy of International Law (OUP 2010). 24  James Griffin, ‘Replies’ in Roger Crisp (ed), Griffin on Human Rights (OUP 2014) 225.

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be promoted, and how proposed rights can be defended or challenged.25 Finally, a theory should have at least some degree of ‘fit’ with current uses and understandings of human rights in morality and practice.26 It is difficult to define the level of fit needed, and a theory should not just aim to replicate those rights found in international human rights documents.27 But if a theory of human rights does not adequately justify and explain key rights, such as freedom of expression or freedom from torture, then this is a strong indication that the label of human rights is being misapplied. One trend that has emerged in the contemporary debate is the rise of ‘political’ theories of human rights, which see their defining characteristic as being the particular political role they play. Such theories take the modern practice of human rights or international human rights law as their starting point, and attempt to develop a normative theory of human rights that fits this practice. Their method is often implicitly an interpretivist one, seeking to develop the most normatively attractive theory that has the requisite degree of fit.28 Political human rights theorists have proposed that human rights have various roles, at both the international and domestic level—​for example, as being standards for determining the internal legitimacy of a regime,29 or protecting human interests that are matters of common concern in the international arena.30 Some political theories do not even require that human rights be ‘rights’ in the sense normally understood.31 Perhaps the most prominent strand of political theories sees human rights as rights whose violation justifies intervention with a sovereign state. Several theorists take this approach, under which human rights are individual entitlements which delineate the boundaries of state sovereignty. John Rawls was the original proponent of this view, believing that human rights are the ‘class of rights that play a special role in a reasonable Law of Peoples: they restrict the justifying reasons for war and its conduct, and they specify limits to a regime’s internal autonomy’.32 For Rawls, human rights are therefore distinct from the constitutional rights of liberal states; they are norms whose violation provides justified, but defeasible, grounds for military intervention by other states, and acts of civil disobedience by citizens. This appears to equate the conditions for internal authority with the boundaries of sovereignty, which is problematic as not every state action that oversteps its authority is a justified reason for intervention.33 Ultimately, however, the critical benchmark for something being a human right under this theory is that it is a trigger for military intervention.34 States that fail to introduce policies and legislation adequately protecting human rights therefore leave themselves open to justified military coercion. The conception of human rights proposed by Rawls does not see labour law norms as matters of human rights, so cannot provide foundations for labour law. The question of what counts as a human right is to be answered by applying Rawls’s well-​known ‘original position’ at the international level, with public reason being used to determine which rights liberal and decent peoples would agree upon as conditions for cooperation behind the veil

25  Amartya Sen, ‘Elements of a Theory of Human Rights’ (2004) 32 Philosophy & Public Affairs 315, 318–​19. 26  John Tasioulas, ‘Towards a Philosophy of Human Rights’ (2012) 65 Current Legal Problems 1, 17. 27  George Letsas, ‘Dworkin on Human Rights’ (2015) 6 Jurisprudence 327, 330. 28  Ronald Dworkin, Law’s Empire (Hart 1998). 29  Ronald Dworkin, Justice for Hedgehogs (Belknap Press of Harvard University Press 2011). 30  Charles R Beitz, The Idea of Human Rights (OUP 2009); Charles R Beitz, ‘From Practice to Theory’ (2013) 20 Constellations 27. 31  Allen Buchanan, The Heart of Human Rights (OUP 2013); Beitz (n 30). 32  John Rawls, The Law of Peoples (2nd edn, Harvard University Press 1999) 79. 33  Raz (n 23) 330–​1. 34  John Tasioulas, ‘Are Human Rights Essentially Triggers for Intervention?’ (2009) 4 Philosophy Compass 938, 942.

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of ignorance.35 This leads to an extremely minimalist list of human rights, excluding many commonly accepted rights such as freedom of expression and association, as well as all socio-​economic rights besides subsistence.36 For labour law norms to be grounded in this conception of human rights, a state’s failure to introduce and enforce them would have to leave them open to justified military coercion. With the exception of the freedom from slavery and forced labour, labour law does not plausibly meet this criteria. Failure to regulate for decent work or introduce a right to bargain collectively would not be seen as justified grounds for military intervention by participants in the international original position. Most core aspects of labour law therefore have no place in this theory of human rights. However, there are several good reasons for not adopting Rawls’s view of human rights as triggers for military intervention. First, the political approach to human rights aims to develop theories which fit the practice, but this conception excludes many rights that are generally seen as central to the modern practice.37 Secondly, although human rights are sometimes used as justifications for military action, Rawls affords this role much greater significance than it has in practice, and ignores the broad range of other functions played by human rights.38 Finally, the method of justifying human rights via public reason and the original position has been criticised as making their content extremely difficult to determine.39 Given these drawbacks, it is no surprise that Rawls’s theory has not been widely adopted by philosophers of human rights. However, the view that human rights are triggers for intervention remains influential, and Joseph Raz builds on this core insight when developing his conception of human rights.40 Raz still views human rights as norms whose violation justifies interference with an otherwise sovereign state, but he departs from Rawls in three ways. First, the justification of military coercion is not the benchmark for what counts as a human right. Instead a right is a human right if it justifies ‘any international action against violators, provided that they are actions which normally would be impermissible being violations of state sovereignty’.41 This significantly lowers the threshold for something being a human right, and results in a less austere list of human rights. Secondly, human rights do not have the function of determining the legitimacy or internal authority of states. Thirdly, human rights are moral rights which must be justified using ordinary moral reasoning, rather than by public reason in the international original position. Under this modified ‘triggers for intervention’ theory, human rights are the subset of moral rights whose violation justifies external interference with a sovereign state. There are three ‘layers of argument’ for determining what counts as a human right: human rights must be moral rights, they must impose duties on government, and there must not be state immunity from interference regarding violations of the rights.42 Although Raz is sceptical of a human right ‘not to be exposed to excessively and unnecessarily heavy, degrading, dirty and boring work’,43 the theoretical framework he proposes can justify some key labour law norms as human rights. In order to determine the implications of this conception of human rights for labour law, we need to unpack each of these three layers of argument. The first requirement, that human rights must be moral rights, requires some theory of what moral rights are and how they are justified. There are various approaches which can be taken to establishing that there are moral rights to labour law

35  Rawls (n 32) 60. 36  ibid 65. 37  Dworkin (n 29); cf Letsas (n 27). 38  Charles R Beitz, ‘Rawls’s Law of Peoples’ (2000) 110 Ethics 669, 687; James Griffin, ‘Human Rights and the Autonomy of International Law’ in Samantha Besson and John Tasioulas (eds), The Philosophy of International Law (OUP 2010) 343. 39  Griffin (n 38) 343. 40  Raz (n 23) 328. 41  ibid fn 21. 42  ibid 336. 43  ibid 321.

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protections.44 For Raz, moral rights are protections of individuals’ interests, and exist where an interest is important enough to hold others to be under a duty to protect or refrain from interfering with it.45 For labour law to be a matter of moral rights under this interest-​based approach, it must be shown that certain interests of workers are sufficiently important to hold others to be under duties to respect or protect them. This would likely be possible for several important areas of labour law. For example, a moral right to education is generated by the interest in being ‘equipped with whatever knowledge and skills are required for him to be able to have a rewarding life’,46 and this would include the right to be provided with the skills and training needed to participate in the labour market. The significant roles that work plays in our lives mean that our interest in working justifies a moral right to work,47 and this would include a right to working conditions which support these underpinning interests.48 A right to minimum standards at work might also be justified by the interest employees have in working under terms and conditions which allow them to lead a rewarding life. The right to work might also include a right to non-​discriminatory access to work, grounded in our interests in dignity and self-​respect.49 It is likely that moral rights to limits on the use of managerial discretion can be justified by reference to workers’ interests in liberty and freedom from arbitrary power. The interest of individual workers in free association and not being subject to unequal bargaining power arguably justifies a right for them to form trade unions and attempt to bargain collectively. A right to strike might either be required as part of freedom of association, or justified through a combination of association, expression, and freedom from forced labour.50 A moral right to some protection from dismissal could be generated by the interest in avoiding the harm that comes from dismissal. There is not space here to discuss the justification or content of these rights in depth, and such arguments would no doubt be contested. But it seems that several elements of labour law will pass the first stage of Raz’s theory. The second layer requires a human right to generate duties for governments. Although under this conception human rights can be held against international organisations, domestic institutions, and individuals, there must always be state duties.51 The question is whether the state should be the ‘guarantor’ of these rights.52 In the context of workers’ rights, employers rather than the state are the most obvious duty-​bearers. But there are several reasons to think that the state will also have duties to protect and help realise them. Long years of experience tell us that unregulated labour markets lead to the ‘worst possible conditions’ for workers,53 and will result in widespread violations of workers’ moral rights. Given the bureaucratic power of modern states, and the extent to which they are involved in regulating labour markets, it is appropriate that the state should guarantee workers’ rights. The labour market is constituted by state legal systems, so the state necessarily has a major role in determining whether workers’ moral rights are realised. In light of this, it is reasonable to think workers’ moral rights will impose at least some duties on government, for example to ensure the law does not permit or encourage the violation of moral rights. The final requirement for labour law to have foundations in Raz’s theory of human rights is that there must not be ‘immunity from interference’ regarding workers’ rights.54 When it comes to matters of human rights, it is not legitimate for a state to claim that ‘I, the state, 44  Pablo Gilabert, ‘Dignity at Work’ in this volume; Alan Bogg and Cynthia Estlund, ‘The Right to Strike and Contestatory Citizenship’ also in this volume. 45  Joseph Raz, The Morality of Freedom (Clarendon Press 1986) ch 7. 46  Raz (n 23) 336. 47  Collins (n 22). 48  Gilabert (n 14). 49  Bogg (n 3) 25. 50  Bogg and Estlund (n 44). 51  Raz (n 23) 329. 52  ibid 336. 53  Sidney Webb and Beatrice Webb, Industrial Democracy (Longmans, Green & Co 1902) 560–​1. 54  Raz (n 23) 336.

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may have acted wrongly, but you, the outsider are not entitled to interfere. I am protected by my sovereignty.’55 The question therefore is whether a state’s violation of workers’ rights is a defeasibly justified ground for action being taken against it by external actors that would normally be ruled out by sovereignty. This in turn requires a moral theory of sovereignty which sets out the scope of immunity it provides, and the circumstances in which its value can be defeated. For Raz, state sovereignty consists in the ability of a state to deny the need to account for its actions towards outside actors and bodies.56 On this view, sovereignty gives immunity from condemnation by external agents, as well as any other diplomatic or economic interferences. Labour law norms that pass the first two layers of argument will therefore be human rights if their violation justifies interferences such as these. Violations of some labour law norms clearly provide justified grounds for intervention. For example, failing to introduce workplace safety standards, allowing widespread discrimination at work, or banning trade unions are all justified reasons for publicly condemning a state. Condemnation by the ILO and other UN bodies for violations of labour rights is widely regarded as justified, and while condemnation by other governments is less common, this has more to do with political expediency than such actions being impermissible interferences with sovereignty. Violations of some workers’ rights are also justified grounds for imposing trade sanctions or withdrawing financial support or foreign aid from a country. For example, the rights to association, freedom from forced labour, the abolition of child labour, and elimination of discrimination contained in the ILO’s 1998 Declaration on Fundamental Principles and Rights at Work are included in several free trade agreements.57 In contrast, some labour law norms are obviously not sufficient to justify intervention; the right of employees to a written copy of their terms and conditions, for example.58 The status of rights to voice at work, collective bargaining, working time regulations, minimum wages, and protection from dismissal is unclear, but these core elements of labour law might not be sufficiently important to justify intervention with a sovereign state. Determining which areas of labour law have foundations in Raz’s theory requires more thorough arguments than those sketched here. But the preceding paragraphs indicate that some areas of labour law can feasibly be justified using this conception of human rights. Despite this, there are several potential drawbacks with viewing labour law’s foundations in this way. One issue is that philosophical arguments about the existence of moral rights and the value of sovereignty are going to be contentious and complex. This might lead some to dismiss any theory which relies on such arguments as an attractive way of justifying labour law. However, philosophical arguments are almost always contentious, and there will be similar disputes over attempts to establish labour law’s foundations using theories of justice, or ideas about exploitation or non-​domination. A second reason for doubting whether this theory provides appropriate foundations for labour law is that it might require us to prove too much. The first two ‘layers’ of argument seem to be sufficient to provide foundations for labour law; if workers’ rights are moral rights that impose duties on government then why concern ourselves with the question of whether the rights can be classed as human rights or not? The possibility of developing a rights-​based justification along these lines is certainly an interesting prospect. However, the focus of this chapter is on assessing the ability of theories of human rights to provide these foundations, and the final layer does matter if we want to establish the legitimacy of basing labour law in Raz’s theory of human rights. 55  ibid 332. 56  Joseph Raz, ‘Human Rights in the Emerging World Order’ (2010) 1 Transnational Legal Theory 31, 42. 57  The recent EU–​Canada trade deal is just one example of this. 58  Employment Relations Act 1995, s 1.

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Finally, Raz’s view of human rights could be criticised for ignoring the many other roles they play in addition to being triggers for intervention.59 Political theories of human rights might struggle to provide appropriate philosophical foundations for labour law for more general reasons. If labour law has foundations in political theories of human rights, it must play the same political role as human rights, whatever that is. But labour law has traditionally been understood as having its own distinct functions, such as counteracting employers’ bargaining power,60 or promoting industrial democracy.61 Viewing labour law through the lens of political theories risks losing sight of these functions. However, this need not be the case. There may be multiple valid and overlapping approaches to justifying labour law, and the fact that some labour law norms have the same function as human rights does not mean that they cannot also play other roles. Another worry is that political theories of human rights are only formal theories of human rights, and do not provide substantive arguments for determining what counts as a human right.62 It is true that political theories are often incomplete, in that they do not do everything that a philosophical conception must do. Both Rawls and Raz’s theories are examples of this; they require additional substantive arguments to be made to establish what counts as a human right, as well as the content of these rights. Further philosophical work may therefore be needed in order for political theories to provide foundations for labour law. But this work is not impossible, and this critique does not rule out the political approach altogether. It merely indicates that further thought is needed to properly understand the implications of these theories for labour law.

4.  Naturalistic Theories of Human Rights Naturalistic theories make up the second major strand in contemporary human rights philosophy, and see human rights as moral norms with no inherently political function.63 Although the intellectual history of human rights is the subject of ongoing debate,64 naturalistic theorists reject the argument that human rights should be understood as a postwar phenomenon. Instead they situate themselves in the same natural rights tradition as scholars such as Grotius and Locke.65 But modern theories have come a long way from these roots; they are usually secular rather than grounded in appeals to religious authority, and although they tend to be less practice focused, they do generally aim to fit the contemporary human rights culture to some extent. The central features of naturalistic conceptions are to see human rights as moral rights held ‘simply in virtue of their humanity’, which are justified using ordinary moral reasoning.66 One leading naturalistic theory of human rights is proposed by James Griffin, who sees human rights as protecting ‘personhood’. Personhood means humanity’s distinctive capacity for normative agency; the ability to choose and pursue one’s own conception of the good life.67 According to Griffin, we have human rights to the conditions of normative 59  Griffin (n 38) 344. 60  Otto Kahn-​Freund, Kahn-​Freund’s Labour and the Law (Paul Davies and Mark Freedland eds, 3rd edn, Stevens 1983). 61  Webb and Webb (n 53); Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Laws (OUP 2014). 62  Liao and Etinson (n 18). 63  Naturalistic theories are also sometimes described as ‘orthodox’ or ‘traditional’ theories. 64  Jeffrey Flynn, ‘Human Rights in History and Contemporary Practice’ in Gerhard Ernst and Jan-​Christoph Heilinger (eds), The Philosophy of Human Rights:  Contemporary Controversies (De Gruyter 2011); Christopher McCrudden, ‘Human Rights Histories’ (2015) 35 Oxford Journal of Legal Studies 179. 65  James Griffin, On Human Rights (OUP 2008) 10–​11. 66  Tasioulas (n 34) 938. 67  Griffin (n 65) 33.

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agency. Being a normative agent requires one to be able to choose a path through life free from external control, so we have an abstract human right to autonomy and those things needed to choose one’s own conception of the good life. Having made these choices, one must be free to pursue them with at least some chance of success, so we also have abstract human rights to liberty and minimum provision.68 The right to liberty is infringed when the pursuit of one’s choices is blocked, whether by physical restraint or other means such as threats or social disapproval.69 The right to minimum provision requires more than just what is necessary for sustenance but does not extend to a flourishing life, or even a ‘satisfactory’ standard of living.70 For Griffin, these three abstract rights, to autonomy, liberty, and minimum provision, provide an umbrella framework within which more determinate human rights can be worked out. Under each higher level right there are a series of more specific rights. For example, the right to autonomy includes human rights to life, health, free expression, assembly, and to a level of education which allows one to make autonomous choices.71 The content of human rights is influenced by ‘practicalities’, which are empirical considerations about society and humanity.72 Practicalities are not an independent ground of human rights, but are used to make the scope and content of human rights more determinate. In addition there are derived human rights which ‘arise from applying a basic human right to a particular time and place’.73 The existence and content of derived human rights is context-​dependent. The right to a free press, for example, cannot exist in societies with ‘no press, or even the concept of one’, but in societies where it does exist it is a central element of the right to freedom of expression and so has the status of a derived human right.74 Griffin argues that this framework generates most, but not all, rights that commonly feature in human rights documents.75 Initially the prospects for this conception of human rights providing foundations for labour law do not look good. Griffin rejects a human right to work, or to decent conditions of work, arguing that these are matters of justice rather than human rights.76 He also does not recognise a human right against discrimination, or to equal pay for equal work.77 It is not that Griffin thinks that discrimination is morally permissible, or that fairness does not demand equal pay; it is just that they do not impact a person’s normative agency so are not matters of human rights. But despite this, some key areas of labour law do have foundations in Griffin’s conception of human rights. A right to work, in the sense of a right not to be blocked from working and to the promotion of employment opportunities, can be justified under Griffin’s theory despite his rejection of it. Rather than a human right to work, Griffin thinks there is a right to adequate options to live in a ‘productive, interesting, enjoyable way’.78 However, the right to work should be seen as a derived human right coming under this more basic right. Work plays a significant role in our lives in addition to being a source of income.79 Griffin himself acknowledges that the value of work consists in the dignity of contributing to society and having ‘something absorbing, demanding and useful to do’.80 Work provides the main way that people are able to live productive and meaningful lives in our current societies; there should therefore be a derived human right to work in current conditions. Griffin appears to 68 ibid. 69  ibid  160–​4. 70  ibid 183. 71  ibid 33. 72  ibid  37–​9. 73  ibid 327. 74  ibid 50. 75  James Griffin, ‘Discrepancies Between the Best Philosophical Account of Human Rights and the International Law of Human Rights’ (2001) 101 Proceedings of the Aristotelian Society (Hardback) 1. 76  Griffin (n 65) 207–​9. 77  ibid 42. 78  ibid 208. 79  Collins (n 22); Guy Davidov, A Purposive Approach to Labour Law (OUP 2016) chs 3–​4. 80  Griffin (n 65) 208.

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recognise this point when he says that the right to adequate options and the right to work can be reconciled by seeing them as operating on different levels of abstraction. It is therefore unclear why he continues to class the right to work as an unacceptable human right. The right to autonomy includes rights to the capacities needed to pursue a worthwhile life, and it could be argued that some areas of labour law protect these essential capacities. In modern industrialised societies, being able to access the labour market will be part of most people’s conception of a worthwhile life. Action to remove barriers to people accessing the workplace might be required as part of this; parental leave or flexible working for example, or duties of affirmative action or reasonable adjustment for those who would otherwise struggle to access the labour market. Accessing the labour market also requires adequate training and prohibitions of discrimination, so human rights to these things might plausibly be included in Griffin’s theory. This use of capacities echoes those who favour of using the idea of ‘freedom as capabilities’ to provide foundations for labour law.81 There may be no human right to decent working conditions on Griffin’s approach, but the abstract right to liberty protects the ability to pursue one’s own conception of a worthwhile life, which includes the ability of workers to pursue decent working conditions. When coupled with the human right to associate freely, which is an essential element of autonomy,82 the right to liberty provides foundations for the right to form trade unions and campaign for better working conditions, as well as attempt to bargain collectively. A right to strike might also be justified using these two rights as it is necessary for workers to have any chance of success in the pursuit of decent working conditions.83 Alternately, the right to strike might be justified as a derived human right under the rights to freedom of expression, association, and freedom from forced labour,84 all of which are included in Griffin’s theory. However, the right to liberty only protects the pursuit of one’s conception of a worthwhile life with some chance of success, so is not a substantive guarantee of decent working conditions. Further, while trade unions must be able to campaign and attempt to bargain collectively, there is no requirement for employers to actually listen or engage in collective bargaining, as these are not conditions of normative agency.85 Human rights protect the conditions for normative agency, so working conditions that are not compatible with workers’ being normative agents will violate their human rights. Normative agency requires ‘more than a life entirely devoted to the struggle to keep body and soul together’,86 and several areas of labour law can be seen as protecting conditions of personhood. Workplace health and safety regulations, for example, would be required as part of the human right to health. A minimum level of health is needed for normative agency, and safe working conditions are required by the right to health in the same way as safe roads and a working sewage system. Personhood also requires restrictions on working time. Without leisure time to contemplate what makes a worthwhile life people will be just as incapable of being autonomous self-​deciders as if they lack education. Similarly, without protected time to pursue one’s idea of a worthwhile life, there is no liberty to achieve these ends and no realistic prospect of success. This right to leisure time would likely include some periods of sustained leave; however, it does not necessarily extend to paid holiday. The right to minimum provision demands that workers have adequate resources for normative agency during any periods away from work. However, there is no requirement that

81  Simon Deakin and Frank Wilkinson, The Law of the Labour Market:  Industrialization, Employment, and Legal Evolution (OUP 2005); Brian Langille, ‘Labour Law’s Theory of Justice’ in Davidov and Langille (n 1). 82  Griffin (n 65) 159. 83  Gilabert (n 14). 84  Bogg and Estlund (n 44). 85  Griffin (n 65) 247–​55. 86  ibid 47.

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these resources be provided by paid leave, and a system of government subsidies during periods away from work would also be sufficient to protect normative agency. Some restrictions on discrimination and dismissal also have foundations in the personhood conception of human rights. Despite Griffin rejecting rights against discrimination and to equal pay, discriminatory treatment which impacts normative agency is impermissible under his theory of human rights. As being a member of a scorned or belittled group would likely undermine one’s autonomy, discrimination on the basis of sex, disability, race, or religion violates human rights.87 Discriminatory actions by employers, including dismissals, on these grounds would therefore also come within the protection of human rights. More generally, there must be protections against dismissals which threaten normative agency, so dismissals which infringe on privacy, expression, or association would be violations of human rights. Without this, there would be a chilling effect on people’s ability to enjoy these rights, undermining their normative autonomy. It is impossible to fully consider the implications of Griffin’s theory for labour law here. One important issue that has not been discussed is how to deal with conflicts of human rights between workers and employers. On the basis of this cursory review however, it seems likely that some aspects of labour law will be included within this conception of human rights. That said, there are criticisms of this account which might make us think twice before drawing conclusions about its ability to provide sound foundations. Normative agency might be seen as a Western value, and therefore as too parochial to form the basis of universal human rights.88 The reliance on normative agency as the sole value grounding rights leads to strained interpretations of some rights,89 and denies human rights to people without the capacity for normative agency such as children or the severely disabled. It is also not clear what theory of ‘rights’ Griffin is using in his theory.90 While the personhood theory has been defended against some of these critiques,91 it might still be thought to lack the coherence needed to provide foundations for labour law. John Tasioulas develops a naturalistic theory which aims to avoid these problems, and proposes that human rights be understood as those universal moral rights held simply in virtue of humanity. Moral rights are norms which generate duties owed to identifiable individuals, that apply regardless of the duty-​bearer’s motivation, and that exclude at least some competing reasons for action.92 Tasioulas builds on a ‘Razian’ interest-​based view of moral rights,93 with a right existing when ‘an individual’s interest in the object of the putative right . . . has the requisite sort of importance to justify the imposition of duties on others’.94 But although rights are generated by interests they are also grounded in human status. An ‘intimate union’ exists between interests and moral status; interests would not be capable of grounding rights if they were not underpinned by human status, and the ‘status of individuals is to be honoured primarily by respecting, protecting and advancing their interests’.95 On this view human rights are a subset of moral rights, namely those moral rights held ‘simply in virtue of humanity’. Given that moral rights are partly grounded in human status or dignity, they can all be seen as held in virtue of humanity to some extent. However, a

87  ibid 42. 88  David Miller, ‘Personhood versus Human Needs as Grounds for Human Rights’ in Roger Crisp (ed), Griffin on Human Rights (OUP 2014). 89  James W Nickel, Making Sense of Human Rights (2nd edn, Blackwell 2007) 54; Tasioulas (n 26). 90  Raz (n 23); Tasioulas, ‘Taking Rights out of Human Rights’ in Crisp (n 88). 91  See eg Griffin (n 24). 92  John Tasioulas, ‘On the Nature of Human Rights’ in Ernst and Heilinger (n 64) 27–​8. 93  See Raz (n 45). 94  John Tasioulas, ‘On the Foundations of Human Rights’ in Cruft, Liao, and Renzo (n 18) 50. 95  Tasioulas (n 26) 9.

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moral right is only held ‘simply’ in virtue of humanity in the requisite sense if it is generated by a universal human interest. Tasioulas says that human rights are justified by reference to ‘basic interests, for example, interests in health, physical security, autonomy, understanding, friendship, achievement, play, etc.’96 The interests capable of grounding human rights are open-​ended, and each right is likely to be justified by reference to a range of basic interests.97 In addition, human rights need not be strictly timeless, and can be justified within particular historical contexts.98 According to this conception, a human right exists when:  (a) for all persons within a given historical context the object of the supposed right serves their basic interests; (b) these interests are pro tanto sufficiently important to justify duties for others to respect or protect it; and (c)  these duties represent feasible claims given human nature and historical context.99 The second stage requires the interests of each individual to be sufficient to generate a right when considered alone, rather than the interests of everyone in society being considered together. The underlying interests ‘must have a very specific kind of moral importance, namely, [they] must be capable of generating a duty’.100 In addition to importance for well-​being, it must be logically possible and feasible for the right to be realised, and any duties generated cannot be overly burdensome.101 The existence of human rights will vary over time; universal interests may be pro tanto sufficient reasons for imposing duties in some socio-​historic conditions but not in others. The content of rights will also vary, as assessments of feasibility and burdensomeness depend on technological advancements and availability of resources. The most direct way for labour law norms to be justified within this theory would be if it were possible to establish a human right to decent working conditions. Many universal interests are furthered by having decent working conditions, including interests in having a decent standard of living, health, autonomy, being treated equitably and with dignity, and in not being exploited. If these interests are sufficient to meet the threshold of generating pro tanto duties Tasioulas’s theory would appear to establish a right to decent working conditions, subject to considerations of feasibility and burdensomeness. However, there is a potential problem with establishing a human right to decent working conditions in this manner. It must be shown that all humans have their universal interests furthered by the proposed human right, but the right to decent conditions at work only furthers the universal interests of those actually in work. The right therefore appears to be conditional on particular transactions or relationships, rather than being held simply in virtue of humanity. Tasioulas’s theory could include a right to decent working conditions despite this. People might have the right prior to entering work, with the duties being to not create or contribute to the existence of poor working conditions and further duties owed to people actually in work. Although the existence of human rights cannot be conditional, the concrete duties they generate can depend on circumstances, within certain limits. The content of human rights can be situation-​dependent as long as the conditions are not too remote from most people’s lives and do not rely on proper names.102 The condition of being in work satisfies both of these requirements, so a human right to decent working conditions might well exist under this conception despite the complicating factor of conditionality. Working out the content of this right requires much further work, but could well include many core labour law norms such as non-​exploitative rates of pay, protection from discrimination, safe working conditions, and limits on working time.

96  Tasioulas (n 94) 50. 97  ibid 51. 98  Tasioulas (n 92) 35–​6. 100  ibid 62. 101  ibid  57–​60. 102  ibid  38–​9.

99  Tasioulas (n 94) 50–​1.

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Even without a human right to decent working conditions, several areas of labour law can be given foundations in Tasioulas’s theory in less direct ways. Duties to protect or promote labour standards are generated by other human rights. For example, the human rights to health and physical safety will impose duties to ensure that people are not working under dangerous conditions, and this might also include imposing minimum rest periods and maximum working hours, as important elements of maintaining physical and mental health.103 A right not to be exploited could be justified via our universal interests in being treated with dignity and in not being exploited or used purely as a means to an end.104 This would include duties not to create or support exploitative working conditions or rates of pay. Duties to permit and promote the formation and campaigning activities of trade unions are imposed by our human rights to freedom of association and expression, which in turn are grounded in our basic interests. Our basic interests in autonomy and having a say in decisions which affect us are arguably sufficient to establish a human right to democracy, or at least to political participation. This might possibly include duties for the state to promote industrial democracy, or for employers to inform and consult workers before taking decisions which will have a significant impact on their lives. Finally, a right to strike might be justified using rights to freedom of association, expression, and freedom from forced labour,105 which can all be justified under the framework proposed by Tasioulas. The right to work can also be used as a vehicle for justifying other areas of labour law. A human right to work can be justified as serving the basic interests of all humans in accomplishment, social inclusion, and autonomy,106 as well as our interest in self-​realisation.107 This right contains negative duties not to block access to the labour market, as well as positive duties to promote opportunities to work. Given the important interests underpinning the right to work it may also impose duties on employers not to dismiss people without good reason or adequate process. Furthermore the right necessarily includes duties in respect of minimally decent working conditions; the right to work must contain duties to promote working conditions capable of serving the interests in accomplishment, social inclusion, autonomy, and self-​realisation that underpin it.108 Poor working conditions prevent the right to work from serving the interests that underpin it; the right to work must therefore be a right to minimally decent work. Much more work is needed to properly establish that labour law norms can be included in this theory of human rights. But even if such arguments can be sustained Tasioulas’s theory might not provide human rights foundations for labour law. He might be accused of changing the subject altogether and offering an account that has no relevance to contemporary understandings of human rights. The theory certainly does not fit well with human rights in international human rights law, where they are seen as applying primarily to governments and protecting things of particular importance. Many rights included in Tasioulas’s conception do not have either of these features, for example the rights to participate in family decisions, or to not be insulted or betrayed. However, it is possible that international rights documents are not exhaustive lists of human rights, and that a theory of human rights must fit the broader culture of human rights rather than international human rights law.109

103  The Working Time Directive were introduced on these grounds. 104  Although a right not to be exploited might sound far-​fetched, it is no less plausible than Tasioulas’s human right not to be betrayed—​see Tasioulas (n 26). 105  See Bogg and Estlund (n 44). 106  John Tasioulas, ‘Human Rights, Universality and the Values of Personhood: Retracing Griffin’s Steps’ (2002) 10 European Journal of Philosophy 79, 91–​2. 107  Collins (n 22). 108  ibid 36; Gilabert (n 14) 179. 109  Tasioulas (n 92) 40.

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More problematic is the fact that under this theory, and the naturalistic approach in general, human rights do not necessarily have any implications for the law. Human rights are not demands for legalisation; they are not what Feinberg calls ‘ideal moral rights’.110 Naturalistic conceptions might therefore provide moral foundations for labour law norms without actually providing foundations for labour law. Because Tasioulas sees human rights in purely moral terms, further argument is needed to determine whether they require legal protection. I cannot discuss here the circumstances under which it will be appropriate for workers’ moral rights to be translated into law. However, if the state is a duty-​bearer of human rights it usually fulfils its duties by introducing policies and legislation, and even where individual employers are the duty-​bearers it may still be appropriate for the law to get involved as a guarantor of the rights. Although all naturalistic theories face the problem of bridging from morality to law, it is comparatively easy to make this move under theories which see human rights as protecting key elements of well-​being, such as Griffin’s personhood account. States are widely accepted as having duties to promote the well-​being of citizens.111 So if human rights protect important elements of well-​being, such as the capacity for normative agency, a state will have duties to implement laws and policies realising human rights. But while there are numerous various ways in which naturalistic human rights theories can have legal implications, it must still be remembered that these do not flow automatically from classifying workers’ rights as human rights.

5. Conclusion The aim of this chapter has been to help bridge the gap between labour law and the philosophy of human rights. It is clear that several of the arguments against aligning labour law with human rights in the existing literature, such as the importance or timelessness of human rights, are not applicable under some particular conceptions of human rights. However, examining these theories does show that we must be cautious about adopting any particular theory as providing labour law’s foundations. Rawls’s conception has very limited scope for including labour law protections, and although Raz’s theory is more promising, it still only includes those rights that justify action on the international stage. Furthermore, political theories are often incomplete and require further substantive moral reasoning to determine which areas of labour law are included. Naturalistic theories appear more likely to include labour law norms, with both Griffin and Tasioulas’s theories providing foundations for some core elements of labour law, but the move from morality to law under naturalistic theories might be complicated. This chapter has focused on the philosophical legitimacy of justifying labour law via human rights. But one reason to doubt whether human rights present an attractive and useful foundational perspective is that the foundations of labour law should be acceptable to as wide a group of people as possible, and theories of human rights might be too contested and controversial to do this. It could also be argued that we should look to more far-​ reaching or ambitious ideas than human rights such as justice or maximal dignity.112 Both of these possibilities need to be considered further before a human rights foundation is endorsed. Finally, human rights will likely only provide partial foundations for labour law, which could lead to a two-​tier system that ends up undermining those areas that cannot be grounded in human rights. However, the fact that some labour law norms do not have their

110  Joel Feinberg, Social Philosophy (Englewood Cliffs 1973), 85. 111  Alan Bogg, ‘Only Fools and Horses’ in Mantouvalou (n 22).

112  Gilabert (n 44).

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foundations in human rights does not prevent human rights from playing an important role in justifying the discipline. Labour law is likely to be morally over-​determined, with multiple persuasive and overlapping justifications. In which case, labour lawyers should shift towards a pluralistic view of labour law’s foundations and make use of every justificatory argument at their disposal—including human rights.

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8 Distributive Justice and Labour Law Guy Davidov* 1. Introduction Redistribution is considered one of the main goals of labour law,1 alongside various other goals, that often complement (but sometimes have to be balanced against) each other.2 When we refer to redistribution as a goal, we usually do so, implicitly, as shorthand for distributive justice. It would be useful to explore, then, theories of distributive justice, and ask to what extent current labour laws are in line with those ideas, and what else labour law can (or should) do to advance this goal.3 The discussion will focus on the distribution of income and job opportunities—​with some brief references to distribution of power and risks as well, where appropriate.4 It should be clarified at the outset that there are many other reasons for redistribution, quite apart from distributive justice. For example, redistribution can be required to protect workers’ dignity, or freedom from non-​domination,5 and so on. However, in the context of justifying, explaining, and interpreting labour laws, if the goal is to protect dignity (for example), then this point should be made explicitly. We should assume that all rights have a positive aspect, and protecting (or advancing) them will sometimes require the allocation or redistribution of resources. If we say that a minimum wage law is justified for reasons of (a) protecting dignity and (b) redistribution,6 the latter has no independent meaning as an argument if it only follows from the former. To the extent that there is an independent justification for redistribution, it relies on an attempt to advance distributive justice. Accordingly, notwithstanding the fact that dignity (for example), in itself, could require

*  Many thanks to participants at the UCL conference on Philosophical Foundations of Labour Law—​and especially the organisers Virginia Mantouvalou, Hugh Collins, and Gillian Lester—​for helpful comments. Many thanks also to Re’em Segev, Ewan McGaughey, and Tammy Katsabian for helpful comments on a previous draft. 1 The term labour law is used in this chapter in its broad sense, including employment law and anti-​discrimination  law. 2  Guy Davidov, ‘The Goals of Regulating Work: Between Universalism and Selectivity’ (2014) 64 University of Toronto Law Journal 1; Guy Davidov, A Purposive Approach to Labour Law (OUP 2016) chs 3–​5. 3  Law-​and-​economics scholars often argue that redistribution should be performed only through taxation and government spending/​welfare payments. But many others have made good arguments in support of redistribution through other legal rules—​including private law—​as well (for a brief discussion and references, see Davidov, A Purposive Approach (n 2) 58). As a matter of practice, there is no doubt that labour laws have a redistributive role, so for current purposes it is not necessary to engage in this debate. 4  There are different views on whether power and risks should be considered part of the distributive justice discussion. For broad views concerning the subject matter of redistribution, see eg Jonathan Wolff and Avner de-​Shalit, Disadvantage (OUP 2007) 6; Hila Shamir, ‘Between Home and Work: Assessing the Distributive Effects of Employment Law in Markets of Care’ (2009) 30 Berkeley Journal of Employment and Labor Law 404, 426–​8. But see, in contrast, Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990) ch 1 (criticising the over-​extension of the logic of distribution to non-​material things or relations). For further discussion, see David Miller, Principles of Social Justice (Harvard University Press 1999) ch 1. 5  Frank Lovett, ‘Domination and Distributive Justice’ (2009) 71 Journal of Politics 817. 6 Guy Davidov, ‘A Purposive Interpretation of the National Minimum Wage Act’ (2009) 72 Modern Law Review 581. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 8 © Guy Davidov 2018. Published 2018 by Oxford University Press.

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redistribution, and without downplaying in any way the importance of such redistribution, the current chapter will focus on ways in which redistribution is required for other, independent reasons, which are more properly termed distributive justice. There is one exception in which it makes sense to include instrumental justifications of redistribution in the current discussion, and it has to do with the relations between distributive justice and equality (or egalitarianism). The philosophical literature often uses the terms interchangeably. Justice requires equality, and the distribution required to achieve equality can either be called distributive justice or be seen as part of equality. However, there is a difference even for philosophers between ‘distributional equality’7 and other forms of equality (legal/​social/​political etc). For lawyers the term equality usually means anti-​discrimination, and while legal scholars referring to equality as a normative ideal often use a broader understanding, for the most part in the legal mind arguments for equality do not challenge the basic distribution of resources in society. In theory, arguments for equality can certainly go to the extent of advocating equality of distribution, but given the current convention regarding the meaning of this term, it makes sense to maintain (at least for current purposes) the distinction between justifications of equality/​non-​discrimination and those of distributive justice, in the sense of distributional equality. However, given the close proximity between these ideas, arguments for redistribution in support of (other kinds of) equality will also be considered in this chapter. Alongside the theoretical interest in exploring the role of distributive justice within labour law, my practical motivation in pursuing this line of research lies in the growing division between different groups of workers, for example in two-​tier and dual labour markets. Such divisions often (or at least sometimes) appear to result from arbitrary reasons, creating resentment among large groups in society. While these divisions are hardly new, they have been exacerbated in recent years, creating increased interest in the role labour law plays—​ and the role it should play—​in addressing conflicts between different groups of workers.8 The distribution of resources created by these labour market phenomena appears (at least on its face) to be unjust—​hence the need to examine it through the lenses of distributive justice. Accordingly, the goal of this chapter is to provide a brief review of distributive justice theories and examine the implications for labour law. Section 2 is dedicated to the view that distributive justice should be based on ‘desert’. On this view, people should get what they deserve, given their contribution, or effort, or some other quality representing moral worth. This is perhaps the most intuitive approach, although it has been somewhat discredited by philosophers. Section 3 reviews theories of distributional equality, which demand redistribution in order to achieve equality in distribution. This is based on a rather radical idea of equality, in the sense that society cannot satisfy itself with treating all individuals equally; it also has to redistribute in order to eliminate previous (including inborn) disadvantages. There are many different theories about what should be equalised—​whether income, resources, opportunities, well-​being, access to advantage, or capabilities—​but they all share the same starting point of challenging the previous and ‘natural’ allocation of resources. Section 4 then moves to consider redistribution as instrumental to the advancement of 7  For this term, see Ronald Dworkin, ‘What is Equality? Part 1: Equality of Welfare’ (1981) 10 Philosophy & Public Affairs 185. Another term that is sometimes used is economic equality; see eg Stuart White, Equality (Polity Press 2007) 7. 8  See Guy Mundlak, ‘The Third Function of Labour Law: Distributing Labour Market Opportunities among Workers’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011) 315; ACL Davies, ‘Identifying “Exploitative Compromises”: The Role of Labour Law in Resolving Disputes Between Workers’ (2012) 65 Current Legal Problems 269.

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equality. This view puts emphasis not on distribution per se but on equality of status. Redistribution is justified only to the extent it is needed to allow each individual to function as equal in society. The philosophical literature on these issues is enormous. I cannot do justice to it here, nor claim sufficient expertise to confront all its nuances. My review will be cursory, but hopefully sufficient for our current purposes: at the end of each section I will briefly consider the possible implications for labour law, both in terms of employer–​employee relations and in terms of intra-​worker distribution.9 The question will be: what kinds of labour market regulations (if at all) can be supported by each distributive justice theory? Specifically, to what extent do these theories justify existing labour laws? I will not attempt to choose between the different theories; to a large extent, they can live side by side, and in any case, the idea is to put forward the connections between distributive justice theories and labour law, allowing readers to decide for themselves which theories they find convincing and draw the conclusions accordingly. Finally, in the concluding section (Section 5) some remarks are offered on one area that requires new labour law regulations to address distributive justice concerns: in light of the previous sections, I will suggest several steps that should be taken to address divisions in two-​tier and dual labour markets.

2.  Desert-​Based Distribution The idea that people should ‘get what they deserve’ seems to accord with common-​sense conceptions of justice. We would probably all agree, for example, that research grants should be allocated based on merit, or that an opening in our faculty should be filled by offering the job to the most deserved. Is it generally the case that resources should be distributed based on desert? It would be highly difficult and problematic to engage in assessing the general moral worthiness of individuals as a basis for dividing resources;10 but why not allocate resources based on desert/​merit that is relevant to the resource being distributed?11 In the context of the labour market, shouldn’t we reward people for their contribution (actual or potential), or their effort? To some extent, of course, this is what the market does, so desert-​ based theories can be invoked to justify the ‘free market’. But the market does this very crudely (and often fails). Moreover, the market is designed first and foremost to maximise utility/​efficiency, not to distribute according to desert—​although workers can generally be expected to receive compensation in line with their contribution, this is subject to constraints of supply and demand. Therefore, if distributing according to one’s contribution or effort is justified, this can support some interventions in the market to correct unjustified results. It may be useful to start thinking about this by considering an extreme example. Lebron James has a unique set of talents and physical qualities which made it possible for him to become the best basketball player in the world of his generation. As a result, he earns many

9  There are several ‘sites’ in which distributive justice issues may arise: (a) between a specific employer and a specific employee; (b) between different workers at the same workplace; (c) between different groups of workers across workplaces; (d) between capital and labour at the societal level; and (e) the last two also at the global level. I focus mostly on (a) and (b) which are the main concern of labour law, with some brief references to (c) where relevant. The other two levels are out of the scope of the current chapter. 10  John Rawls, A Theory of Justice (first published 1971, rev edn, Harvard University Press 1999) 274–​5. I put aside, for now, the idea that distributive justice should take into account people’s responsibility for their actions; this will be discussed separately later. 11  See Miller (n 4) ch 7 (justifying distribution based on desert by reference to ‘performance’) and see especially p 135 (the kind of performance relevant to desert depends on the context).

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millions of dollars each year from playing basketball and from related endorsements. Can the rest of us complain about this distribution? James has to work hard to succeed as a basketball player, and surely, he deserves reward for this effort. But it is reasonable to assume that the level of effort required is not different from that required in many other jobs. So, by far the largest share of his compensation rewards his inborn talents (that rely also on his physical qualities). Does he deserve to earn so much more money than the rest of us? Let us put aside the issue of incentives. It could be argued that if James does not get to enjoy all the rewards of his talents he will not bother to make an effort to train and develop his talents, and as a result we will all lose. The extreme version of this argument is surely incorrect, as even with high levels of taxation he will still have enough monetary incentive to work hard. There are also, of course, non-​monetary rewards that come with professional success. But more importantly, these are considerations related to maximising utility/​efficiency and not distributive justice. They should be taken into account separately, and perhaps balanced later on against considerations of distributive justice. But first we have to ascertain what distributive justice requires in this situation. One could answer that if the public is interested in what James has to sell, and people are willing to pay a lot of money to enjoy watching him play, then the distribution created by this set of contracts is just. Everybody is happier thanks to James, so he deserves the rewards. But this assumes that he deservedly ‘owns’ his talents and all of their fruits.12 This assumption was contested by John Rawls in his critique of desert-​based distribution, when he pointed out that ‘the initial endowment of natural assets and the contingencies of their growth and nurture in early life are arbitrary from a moral point of view’, and even ‘the effort a person is willing to make is influenced by his natural abilities and skills and the alternatives open to him’.13 This line of thought was developed by a number of philosophers who have later been dubbed ‘luck egalitarians’.14 While luck egalitarians differ on what exactly has to be equalised—​an issue I will discuss in the next section—​they all agree that people should not suffer the consequences of bad luck. Factors beyond our control (such as the level of talent) should not form the basis for decisions about distributions and cannot in themselves justify an existing (or market) distribution. On the contrary, distributive justice requires us to neutralise, as much as possible, the impact of the unequal allocation of talents, physical qualities, and other attributes and abilities. The idea that because all people are fundamentally equal the distribution should make us equal, despite differences in talent and other such differences beyond our control, is likely to be appealing to some but reprehensible to others. This basic disagreement is probably rooted in the question of whether one can complain or make demands when nobody else is at fault. Although sometimes the advantage enjoyed by some people is socially constructed and not ‘objective’—​for example, the conception of what is pretty/​attractive that allows some people to enjoy rewards—​quite often there are objective advantages to having a talent. If one has the good fortune of possessing useful talents or the bad luck of not having them, there is obviously no one to blame. Elizabeth Anderson has argued that a conception of justice should be interpersonal, that is, can include only demands that people can make

12  See Robert Nozick, Anarchy, State and Utopia (Basic Books 1974) 161–​3 (Wilt Chamberlain example). I will not discuss Nozick’s theory here; although he described it as a theory of distributive justice (ibid 149) it is concerned with the acquisition of property. Arguments for private property are based on other normative justifications, quite separate from the ones considered here under the heading of distributive justice. 13  Rawls (n 10) 274. As noted by Daniel Markovits, ‘How Much Redistribution Should There Be?’ (2003) 112 Yale Law Journal 2291, 2295–​6, the same point was made much earlier by John Stuart Mill. 14  See Elizabeth Anderson, ‘What is the Point of Equality?’ (1999) 109 Ethics 287 for this term. For a prominent example of luck egalitarianism, see GA Cohen, ‘On the Currency of Egalitarian Justice’ (1989) 99 Ethics 906.

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from others.15 People with less talent do not have any valid claim against people with more talent; therefore, according to Anderson, the distribution of talents is not unjust and does not require redress. But it is difficult to accept the claim that justice is necessarily limited in this way.16 There is no reason why we cannot demand, as a matter of justice, the correction of results created by nature, if we find this to be warranted.17 There are two other and perhaps more convincing replies that we can make to luck egalitarians, and they are more practical than principled. First, we each have a ‘package’ of talents, physical qualities, as well as other good and bad attributes; and we each have our share of good and bad luck in different areas of life. It could certainly be the case that Lebron James had some bad luck (or lack of talents) in other parts of his life; he is not necessarily happier than the rest of us. It is not possible to separate one part of the ‘package’ from others. Some people have the gift of being kind and sociable and they enjoy some rewards for these attributes (not necessarily monetary rewards) on a daily basis. Others have the good fortune of finding the perfect match for a partner. Yet others have marketable talents which make them rich, but at the same time they could be miserable because of other misfortunes. It seems unfair to ‘equalise’ one part of the package while ignoring other parts that are not quantifiable and might pull in other directions. In other words, if we take the idea of luck egalitarianism to its logical conclusion, it requires full equality of welfare/​well-​being. I will return to this option in the next section; for now, suffice it to say that it is clearly impractical. Admittedly, however, this argument has only limited power because at the end of the day we all want more money; and if luck should be neutralised, by redistributing money at the very least we will get closer to just distribution. Some could argue that the non-​monetary parts of the ‘package’ can be assumed to be similar (and then ignored), given that it is impossible to assess them. A second practical objection to luck egalitarianism maintains that it is impossible to distinguish between choice and circumstance, or (more specifically) between effort that is voluntary (made by choice) and effort that is rooted in inborn characteristics.18 As noted by Samuel Scheffler, ‘people’s voluntary choices are routinely influenced by unchosen features of their personalities, temperaments, and the social contexts in which they find themselves’.19 The question is whether this should lead us to ignore effort altogether, or to ignore the inborn differences altogether,20 or rather (which seems most reasonable to me) to take both of them into account. Overall, while the argument against desert-​based distribution is certainly powerful, I think it is overstated. The basic idea behind the critique is important: it is difficult to accept the claim that the lucky ones should be able to enjoy all the rewards of their luck; and 15  Elizabeth Anderson, ‘The Fundamental Disagreement between Luck Egalitarians and Relational Egalitarians’ (2012) 40 Canadian Journal of Philosophy 1. 16  For the view that people have a duty to justify any superior position they have relative to others, see Shlomi Segall, Equality and Opportunity (OUP 2013) 22–​3. Note that one need not accept this position either in order to conclude that as a society we should intervene to offset specific inequalities. 17  According to Anderson, if some people make more (thanks to their talents) it is not to anyone’s disadvantage. This ignores the fact that one’s status in society is relative to others. Moreover, even if it is objectively beneficial to be smart (for example), the rewards that the market bestows on this quality are not in themselves ‘natural’; the market is a construct which we devise as a society and we are therefore responsible for. 18  Indeed, Rawls’s critique focused mostly on the argument that ‘the idea of rewarding desert is impracticable’ (n 10 at 274). See also Cohen (n 14) 915. For an attempt to articulate a basis for distinction, see Richard J Arneson, ‘Desert and Equality’ in Nils Holtug and Kasper Lippert-​Rasmussen (eds), Egalitarianism: New Essays on the Nature and Value of Equality (Clarendon Press 2007) 262 (arguing that people are not deserving for things they did not control, but accepting desert for ‘consciousness striving’). 19  Samuel Scheffler, ‘What is Egalitarianism’ (2003) 31 Philosophy & Public Affairs 5, 18. 20  See Miller (n 4) 148–​9 (concluding that because natural talent cannot be separated from effort we should reward effort).

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more importantly, that the unlucky should suffer all the consequences themselves. Luck egalitarianism can support a high level of taxation and redistribution. At the same time, the idea of desert does not entirely lose its validity.21 Rewarding contribution and effort that enlarge the pie or otherwise increase welfare seems just (subject, of course, to taxation and other conflicting considerations). This middle-​ground approach arguably conforms to the theory of Ronald Dworkin, who imagined a hypothetical system of insurance against bad luck. Starting from the premise that people should be responsible for their choices, including the management of risks, he asked what kinds of bad luck ‘average people’ would have insured themselves against if they could. If we do not know which set of talents and abilities we might get (or what would be the implications of these talents and abilities in the market), what kind of insurance would we buy? It is safe to assume that no reasonable person would buy insurance against the bad luck of not getting the talents of Lebron James; both in the sense of not being able to afford it and in the sense of not finding it necessary. In contrast, we can certainly expect rational people to insure themselves against the risk of having no marketable talents or abilities, thus ending up unemployed or stuck at minimum wage jobs.22 This thought-​experiment suggests that people are happy to allow others to enjoy the rewards of their good fortune, and would only require redistribution to protect against cases of (relatively extreme) bad luck. Otherwise put, although supporting redistribution to correct for bad luck, Dworkin’s view appears to leave room for desert-​based distribution. If indeed contribution and effort should be rewarded, what about other aspects of work? One could argue that some kinds of work are more deserving than others, for example when people assume exceptional risks (dangerous jobs) or positions that most people prefer to avoid (‘dirty’ work). However, in contrast it could be argued that jobs that require a high degree of responsibility deserve more compensation. Overall it would be difficult (and probably harmful to people’s dignity at work) to create a ranking of jobs in terms of desert. What could be the implications for labour law, assuming one accepts the view that at least one relevant criterion for distributive justice is desert, meaning specifically contribution and effort? David Miller distinguished between four possible claims against unjust distribution based on desert,23 which can potentially translate into four levels of regulation: (a) decisions about distribution should not be made based on criteria that are evidently irrelevant from the point of view of desert, such as race, gender, or religious affiliation; (b) when people in the same group are equally deserving, they should enjoy the same benefits; (c) when two groups are equally deserving, people in these groups should enjoy the same benefits; and finally (d) there are non-​comparative arguments, ie simply that someone is deserving of a certain benefit by virtue of a certain performance. The idea of desert can thus support anti-​discrimination laws (claim type a), as well as pay equity laws (type b and sometimes type c). It can also support arguments for further equality within organisations (type c): pay equity laws are usually limited to equal pay for men and women, and in some countries also equal pay for workers through temporary

21  Although for some years following the publication of Rawls (n 10) there appeared to be an almost consensus view against desert, more recently there is revived interest in it. There is even a view that desert should replace the concept of equality altogether; see Shelly Kagan, ‘Equality and Desert’ in Louis P Pojman and Owen McLeod (eds), What Do We Deserve? A Reader on Justice and Desert (OUP 1999) 298. However, the work of Kagan and the debate following it do not include any discussion of the appropriate bases of desert—​an issue he explicitly avoids also in his later work; see Shelly Kagan, The Geometry of Desert (OUP 2014) 6. 22  Ronald Dworkin, ‘What is Equality? Part 2: Equality of Resources’ (1981) 10 Philosophy & Public Affairs 283, 314ff. 23  Miller (n 4) 151–​5.

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employment agencies and for part-​time and fixed-​term workers. This seems to be based on the understanding that gender, and the form of employment arrangement, are irrelevant considerations when determining the level of desert. The same understanding could support additional regulations to confront disparities between workers that cannot be explained by contribution and effort. Miller himself is quite sceptical about our ability to make determinate conclusions when comparing two different groups (ie type c). He gives as an example the claim that doctors are more deserving than manual workers, which he considers impossible to say by how much.24 According to Miller, it would be easy to conclude that a society that pays doctors less than manual workers is unjust; but if they are paid more, it is difficult to say by how much is ‘just’. However, the difficulty of making clear-​cut determinations should not deter regulators from action. In fact, in pay equity cases this is already performed in many legal systems: in comparing the salaries of men and women doing different jobs, experts evaluate whether these jobs represent ‘equal value’ and as a result deserve equal pay. A legislature can similarly intervene to ensure appropriate compensation for workers when the market fails to reward their contribution and effort sufficiently—​which can become apparent by comparison to other workers (even if this is not based on clear-​cut numbers but requires some judgement). What about non-​comparative desert arguments (type d)? Miller considers them highly problematic for social policy because it is impossible to make determinate claims of this sort. However, while it may be too extreme to expect the law to determine the ‘right’ or ‘fair’ level of wages for a specific worker or profession, it is quite possible to say that below a certain level, compensation cannot reflect sufficient reward for reasonable contribution and effort—​thus supporting minimum wage laws.

3.  Redistributing to Achieve Equal Distribution The current philosophical debate concerning egalitarianism revolves around two basic approaches. One stems from the critique of desert as described in the previous section: according to luck egalitarians, the principle of equality demands neutralising the impact of factors that we are not responsible for, including inborn talents and physical qualities, or lack thereof. Obviously, this requires massive redistribution, and there are different views about how far to take this idea and at what point people become responsible for their own fates. In contrast, so-​called ‘relational egalitarians’ refuse to accept the idea that society has to redistribute in order to offset the cost of bad luck. The latter approach is discussed in the next section; the current section is dedicated to attempts to achieve equality of distribution, predicated on the assumption that it is unjust for people to enjoy (or suffer) the consequences of unequal natural endowments. If our talents and handicaps are ‘morally arbitrary’, how can we neutralise their impact? Rawls was concerned with the unequal distribution of income and wealth created by these endowments (among other things).25 Accordingly he viewed social and economic inequalities as presumptively unjust. As part of the well-​known ‘difference principle’ he maintained that such inequalities can be justified only if they are ‘to the greatest benefit of the least advantaged’.26 Simply put, if the least advantaged members of society benefit from an unequal situation—​for example, thanks to the creation of improved work opportunities, or progressive taxation—​the situation is justified. This formulation is based on the assumption that 24  ibid  153–​4.

25  Rawls (n 10) 53, 79.

26  ibid 266.

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the more talented need an incentive (in the form of higher salaries) to work hard or otherwise to put their talents to use, and society benefits from that.27 This part of Rawls’s theory of justice is thus an attempt to balance considerations of distributive justice with considerations of efficiency. It has later been questioned whether (or to what extent) such incentives are really necessary;28 and also whether the result would be just for the middle class (people that will not necessarily benefit from the inequality).29 A further problem arises from the exclusive focus on the absolute position of the least-​advantaged without giving any weight to their relative position.30 Income and wealth are obviously not important in themselves. Rawls defined a person’s good as ‘the successful execution of a rational plan of life’, and this requires liberty and opportunity, as well as income and wealth as means to achieve one’s ends (Rawls considered all four, together with the social bases of self-​respect, ‘primary goods’).31 The question of what exactly we should equalise became central in subsequent contributions. Dworkin started his enquiry with a critique of equality of welfare, arguing that people should be responsible for their choices.32 To equalise welfare, or well-​being (whether we define it as preference-​ satisfaction, enjoyment, or otherwise) we will have to subsidise risky and lazy behaviour, as well as expensive tastes. Dworkin distinguished between ‘brute luck’ which people should not be penalised for, and ‘option luck’—​the risks and choices people are taking voluntarily, for which they should enjoy the rewards but also pay the costs. Otherwise put, the distribution should be ambition-​sensitive but not endowment-​sensitive.33 To this end he proposed equality of resources. The goal is not to eliminate all uncertainties, but ‘to make people equal, as far as this is possible, in the resources with which they face uncertainty’.34 Dworkin accordingly supported a tax-​and-​redistribution system that would mimic the results of the hypothetical insurance scheme mentioned in the previous section. People with disabilities, or who are less talented, would have to get more to reach the same level of resources; but only to the extent an average person would have insured herself against this kind of bad lack. Dworkin’s approach is similar to Rawls’s in its focus on resources. Although Rawls called them primary goods and included a more specific list of such goods, they both considered income and wealth as major resources that should in principle be equalised, subject to the conditions they each developed. If resources are just a mean to an end (‘the successful execution of a rational plan of life’, for Rawls), we have to wonder whether the same level of resources will give different people the same opportunities and ability to reach their goals. Surely people with disabilities, or otherwise detrimental conditions, will be able to do much less if given the same resources. Dworkin attempted to rectify this problem with his scheme for redistribution to compensate for brute bad luck. A different solution to this problem was developed by Amartya Sen, who argued that we should focus on ‘capabilities’ instead of resources. According to Sen, what is important for people is effective, real freedom to pursue their plan of life. Sen called what we need and want ‘functionings’, and he pointed attention to the importance of capabilities to achieve these functionings. Martha Nussbaum has later developed an influential list of specific functionings, which she identified as crucial for humans’ well being.35 Although Sen originally developed

27  ibid 68. 28  See eg GA Cohen, Rescuing Justice and Equality (Harvard University Press 2008) ch 1. 29  See eg White (n 7) 109–​10. 30  See eg Julian Lamont and Christi Favor, ‘Distributive Justice’ in Stanford Encyclopedia of Philosophy (Winter 2016 edn) accessed 11 June 2017. 31  Rawls (n 10) 380. 32  Dworkin (n 7). 33  Dworkin (n 22) 311. 34  Ronald Dworkin, ‘Sovereign Virtue Revisited’ (2002) 113 Ethics 106, 107. 35  Martha Nussbaum, Women and Human Development: The Capabilities Approach (CUP 2000).

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this idea in response to the question ‘equality of what?’,36 his focus was more on freedom than equality (capabilities being a way to understand effective human freedom). In principle, one could argue in favour of redistribution towards full equality of capabilities, but Sen himself is sceptical about this idea.37 He supports equality of capabilities only in the ‘sufficientarian’ sense:  ensuring that everyone has a set of basic capabilities. Thus construed, his theory can be used (and has been used) to support relational equality, which I discuss separately in the next section.38 The view that equalising resources is insufficient is shared by luck egalitarians such as Gerald Cohen, Richard Arneson, and John Roemer. These scholars accept the premise (stressed by Dworkin) that people should be responsible for their choices and it would not be justified to equalise welfare in a way that ignores these choices. However, they argue that what Dworkin considers ‘option luck’ is not truly optional: our laziness (or in contrast ability to work hard), our propensity to take risks, our expensive tastes—​these are all (to some extent) the result of inborn character and early childhood education/​socialisation. Because these factors are somewhat beyond our control, they too are morally arbitrary, and a just distribution should aim to eliminate their impact. This brings us closer to examining equality of final outcomes, ie ultimately of welfare. However, in an attempt to separate the implications of bad luck (even if indirectly) from the results of voluntary choices, it has been suggested to equalise opportunity for welfare39 or alternatively access to advantage;40 or to ask whether people who exercised a ‘comparable degree of responsibility’ have equal opportunities, regardless of their circumstances.41 Such proposals obviously run into significant practical problems. To the extent they aim to take into consideration non-​monetary aspects of happiness and well-​being, this is mostly a theoretical exercise (unless one wishes to engage in extreme violations of privacy, alongside wild speculations). Distinguishing decisions taken in free choice from other kinds of decisions is also highly difficult as a practical matter, and when used to deny benefits to some people (based on their choices) would create problems of stigma and harms to dignity and self-​respect.42 Moreover, if we take luck egalitarianism to the extreme, people with inborn genetic or environmental advantages will end up having to pay harshly to offset these advantages. The good fortune of being born with a special talent will turn into a curse

36  Amartya Sen, ‘Equality of What?’ in Sterling M McMurrin (ed), Tanner Lectures on Human Values (CUP 1980). See also Amartya Sen, Inequality Reexamined (Harvard University Press 1992). My discussion here focuses on Sen’s normative theory of capabilities. In earlier writings, he developed the idea of capabilities as an alternative to GDP in measuring successful development. 37  Amartya Sen, The Idea of Justice (Harvard University Press 2009) 295. 38  I will not refer here to capabilities as an independent justification for labour law or as part of a justification centred on human freedom. These issues have been the focus of much discussion among labour law scholars in recent years. Capabilities are considered in this chapter only to the extent they could be relevant to distributive justice. 39  Richard Arneson, ‘Equality and Equality of Opportunity for Welfare’ (1989) 56 Philosophical Studies 77. 40  Cohen (n 14). The term ‘advantage’ is broader than welfare, in the sense that if poor people are satisfied with very little, this cannot be an excuse to perpetuate their situation. Even if they score high in terms of preference-​ satisfaction or enjoyment, we should still offer them more advantage. In this respect, Cohen’s argument is similar to Sen’s. The term ‘access’ is used to convey the need to ensure that opportunities are really equal, in the face of disparities in talent and other endowments. 41  John E Roemer, ‘A Pragmatic Theory of Responsibility for the Egalitarian Planner’ (1993) 22 Philosophy & Public Affairs 146, 149; John E Roemer, Theories of Distributive Justice (Harvard University Press 1996) 276–​9. Roemer gives as an example the question of whether society should compensate people for lung cancer which resulted from smoking. The problem is to decide whether the decision to smoke was a free choice, and at what point people should be held responsible for this choice. He argues that the answer is different depending on the ‘type’ of person (determined by economic class, level of education, etc). We can decide, eg, that ten years of smoking by a college professor are equivalent to thirty years of smoking by a steelworker, in terms of the ‘degree of responsibility’. 42  Jonathan Wolff, ‘Fairness, Respect, and the Egalitarian Ethos’ (1998) 27 Philosophy & Public Affairs 97.

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of having to pay for it in cash throughout one’s life in the name of distributive justice.43 However, such unreasonable results will only ensue if one ignores all other goals, values, and principle of justice. This is certainly not required by accepting luck egalitarianism (or any other of the previously mentioned theories). We can appreciate the value of luck egalitarianism while at the same time acknowledging the importance of dignity, autonomy, efficiency, and other values (including other forms of equality).44 Laws regulating complex human affairs often have to take into account a multitude of purposes and justifications and sometimes balance between them. What are the implications of ‘distributional equality’ theories (as discussed in this section) for labour law? First, these theories support anti-​discrimination laws, because they can prevent differences in distribution on the basis of ‘luck’ in terms of being born male or female, with a certain skin colour, ethnicity, etc. Affirmative action programmes are also justified in order to counteract the disadvantage resulting from those inborn traits.45 For similar reasons, distributional equality supports pay equity laws and could support their further expansion to ensure equal pay for equal value not only between men and women but between other groups in society as well. Secondly, relying on the general idea that distribution based on natural endowments (including talent) is unjust, or at least problematic, we can minimise the impact of these factors by reducing wage differentials. This can be achieved by supporting labour unions and collective bargaining (which are known to flatten wage differentials),46 and/​or through direct intervention in the maximum ratio between high and low salaries within the firm (which can be called ‘maximum wage laws’).47 Thirdly, a minimum wage can be justified to prevent extremely low wages which are likely to result from lack of talent or lacking childhood education etc (again minimising the impact of such ‘brute bad luck’). Fourthly, in terms of the distribution of wealth between employers and employees—which at least to some extent can be presumed to result from luck—unions, and the minimum wage are once again instruments for reducing disparities. Admittedly, for all of these regulations, there is a risk that employers will shift the costs to the protected group—​or to other groups of workers—​eventually leading to regressive redistribution. While this risk should not be ignored, there is certainly no reason to believe that 43  Michael Sandel uses a powerful story by Kurt Vonnegut to vividly illustrate this difficulty. The short story depicts a time in the future in which ‘everybody was finally equal’, and strict equality is enforced by the state by methods such as government transmitters sending a sharp noise into the ears of smart people to prevent them ‘from taking unfair advantage of their brains’, requiring attractive people to disguise their beauty, and requiring strong people to walk around wearing heavy scrap metal to offset their physical strength. See Michael J Sandel, Justice: What’s the Right Thing to Do? (Farrar, Straus and Giroux 2009) 155, referring to the story ‘Harrison Bergerson’ (1961) included in Kort Vonnegut Jr, Welcome to the Monkey House (Dell Publishing 1998) 7. 44  And see Sen (n 37) 317 (rejecting a ‘unifocal’ approach to equality and to justice, acknowledging instead a plurality of concerns); Cohen (n 14)  908 (adopting a ‘weak equalisadrum’ claim, meaning that equality can be limited in favour of other values). See also Nancy Fraser, ‘From Redistribution to Recognition? Dilemmas of Justice in a “Post-​Socialist” Age’ (1995) 212 New Left Review 68 (proposing ways to reconcile claims for redistribution with claims for recognition). 45  For a luck egalitarian approach to hiring, see Segall (n 16) chs 4–​5. 46  Richard B Freeman and James L Medoff, What Do Unions Do? (Basic Books 1984) ch 5; Bruce Western and Jake Rosenfeld, ‘Unions, Norms, and the Rise in US Wage Inequality’ (2011) 76 American Sociological Review 513. See also Ewan McGaughey, ‘All in “It” Together: Worker Wages Without Worker Votes’ (2016) 27 King’s Law Journal 1. 47  Such a law was recently adopted in Israel with regard to the financial services sector (banks, insurance companies, etc). The new Act determines that payment of a yearly salary higher than 2.5 million NIS (approx US$700,000) requires a burdensome process of approval within the company, and cannot be approved if the overall cost of the compensation package is more than thirty-​five times the cost of employing the lowest-​paid employee working for the company (including those employed through temporary employment agencies, as well as cleaning and security workers through contractors). Moreover, any surplus paid over the above sum (if approved) cannot be deducted as a business expense for tax purposes. See Compensation for Executives at Financial Corporations (Special Approval and Prevention of Tax Deductibility of Exceptional Compensation) Act 2016.

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redistribution attempts are hopeless. For each specific regulation, a full separate analysis of the expected redistribution is required before concluding what results can be expected. It is certainly possible to include within the previously mentioned laws measures that prevent or at least minimise the risk of cost-​shifting; and in some cases, even if it occurs, the results are still expected to be progressive.48 So far, the discussion has been limited to the distribution of material goods. But distributive justice can arguably refer to the distribution of power and risks as well.49 If we adopt this broader view, regulations supporting unions and collective bargaining receive further support (because they redistribute power from employers to workers) and other protections such as unfair dismissal laws can also be supported (because they redistribute risks from employees to employers). Redistribution along these lines can be justified once again based on the assumption that without it, the distribution of power and risks created by the market gives too much weight to factors that are morally arbitrary (such as the bad luck of being fired for arbitrary reasons). Finally, can we apply Rawls’s difference principle in labour law? Because labour laws apply to people who have jobs, almost by definition they do not cover the ‘least advantaged’ members of society (who are presumably unemployed). Accordingly, it could be argued that laws redistributing in favour of employees—​who are not the least advantaged—​are unjustified.50 However, we can use the general idea to suggest that inequalities in the labour market can be justified only if they benefit the least advantaged workers (ie the least advantaged members of the labour market). This idea can be used to justify (and require) regulations that redistribute resources, power, and risks in favour of low-​wage, precarious workers. Moreover, it has been argued following Rawls that job complexity, authority, and responsibility should be considered primary goods, because of their importance for ‘self-​ governing and social capacities of the self ’;51 according to this view we should be concerned not only with income equality, but also with occupational equality, meaning the distribution of jobs with opportunities for self-​fulfilment and self-​respect. This could lead to a proposal to ‘flatten workplace hierarchies and democratize workplace governance’, subject to Rawls’s constraint that such hierarchies and non-​democratic governance could be justified if they benefit the least advantaged.52 Arguably this provides further support for regulations supporting unionisation and collective bargaining.

4.  Redistribution to Advance Relational Equality The idea of distributional/​economic equality is contested by some philosophers, who argue that our focus should be social or relational equality: to ensure that people have equal status, are treated as equals, and have the ability to function in society on ‘equal terms’.53 The idea of equality, they argue, is to fight oppression, castes, hierarchies between classes, etc and not bad luck.54 The relational approach therefore considers equality a social and political ideal and not a distributive ideal per se. Proponents of this approach accordingly try to avoid the

48  For examples of distributional analyses concerning specific labour laws, all of which support such laws at least partially, see Christine Jolls, ‘Accommodation Mandates’ (2000) 53 Stanford Law Review 223; Shamir (n 4); Davidov (n 6). 49  See n 4. 50  For this interpretation of Rawls, see eg Horacio Spector, ‘Philosophical Foundations of Labor Law’ (2006) 33 Florida State University Law Review 1119, 1134. 51  Samuel Arnold, ‘The Difference Principle at Work’ (2012) 20 Journal of Political Philosophy 94, 98, 106. 52  ibid 107. 53  See Anderson (n 14); Scheffler (n 19). On social equality, see also Miller (n 4) 232. 54  Scheffler (n 19) 22.

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term distributive justice, describing their theory as dealing with equality or egalitarianism. However, they do not settle for formal equality (in the sense that the rule of law applies to all equally) but rather understand that resources have a crucial impact on the ability of people to function as equals in society. Because relational egalitarians realise that redistribution is necessary to secure equality—​and make an effort to explain how this should be done—​this theory can be seen as a theory of distributive justice as well. What kind of redistribution is needed to achieve equality of status? Obviously the social status and political power enjoyed by a billionaire are dramatically higher than those held by poor people. Therefore, in principle the idea of equal status could be taken to require equality of resources. However, relational egalitarians prefer a ‘sufficientarian’ approach: each individual must have a basic level of resources, not less than the minimal level needed to ensure one’s ability to function in society as equal. It immediately becomes clear that the above description is hopelessly circular: the idea of ‘equal status’ cannot in itself provide any guidance as to what is sufficient to function as equal. One has to rely on some additional theory to figure out what is required in terms of distribution. Elizabeth Anderson turns in this juncture to the capabilities approach, arguing (following Sen) that society has to ensure ‘our freedom to achieve valued functioning’.55 She includes three aspects of functioning: as a human being, as a participant in a system of cooperative production (the market), and as a citizen of a democratic state. The second of those is most relevant for current purposes, and in this regard Anderson explains that it requires ‘effective access to the means of production, access to the education needed to develop one’s talents, freedom of occupational choice, the right to make contracts and enter into cooperative agreements with others, the right to receive fair value for one’s labor, and recognition by others of one’s productive contributions’.56 The last two points seem to rely (implicitly) on an idea of desert. The other rights and freedoms which Anderson considers to be required in this context all aim to ensure access and nothing more. Although Anderson herself calls this ‘effective’ access,57 in practice she seems to settle for a very minimal level of effectiveness: just enough to ‘avoid being oppressed by others’.58 She does not consider income inequalities to be problematic in themselves. She admits that such inequalities are problematic when they are easily translated into ‘status inequality—differences in the social bases of self-​respect, influence over elections, and the like’59 but refuses to assume (even though it would be reasonable to assume) that this is normally the case. Further development of the capabilities approach that can be helpful in the current context has been offered by Jonathan Wolff and Avner de-​Shalit, who argued that alongside the level of functionings we must be concerned with the ability to sustain them. Insecurity of functionings creates risk and vulnerability which are in themselves problematic. They give casual employees as an example, characterising the insecurity of being possibly out of work at any given time as a disadvantage requiring societal response.60 Moreover, in an attempt to identify the least advantaged members of society, they show how disadvantages ‘cluster’ together, multiplying in severity.61 What would be the implications of distributive justice based on relational equality for labour law? Anderson points to the minimum wage as one mechanism that can help ensure that people are not ‘deprived of the social conditions of their freedom’.62 She also supports the right of people with disabilities to accommodation, to the extent this is needed to allow 55  Anderson (n 14) 316. 56  ibid 318. 57  ibid 318. 58  ibid 320. 59  ibid 326. 60  Wolff and de-​Shalit (n 4) 9, 70. They further argue that ‘the government should guarantee genuine opportunities for secure functionings’ (at 14). 61  ibid ch 7. 62  Anderson (n 14) 325.

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them to participate in society.63 The emphasis on insecurity proposed by Wolff and de-​ Shalit could support various protections for precarious workers. David Miller goes a step further; noting that ‘if we want our society to be egalitarian, then we will try to shape our distributive practices so that the emergence of hierarchy is discouraged’, he argues that large, cumulative inequalities that exist in current liberal democracies—​in education, income, and organisational power—​mean that ‘these societies are still effectively class-​divided’.64 Accordingly, he argues that differences in wages within firms should be compressed, suggesting as an example that the managing director of a large company should not be paid more than three or four times the wage of an unskilled worker.65 This goal can be advanced (as noted in the previous section) through direct regulations—​a ‘maximum wage law’—​ and/​or indirectly by supporting labour unions. Samuel Bagenstos has taken a broad approach and argued that ‘social equality’ can also be used to justify laws concerning workplace discrimination, unjust dismissal, workers’ privacy, workers’ political speech, whistle-​blowing, child labour, and maximum hours.66 This is based on the idea that the point of all these laws is ‘to ensure that individuals have the time, space, and ability to participate in democratic citizenship’.67 This appears to be a useful justification for some laws, but quite artificial and too indirect for others. For example, the idea that we need free time from work in order to be able to use it for participation in society as equal citizens is plausible, as a supporting/​secondary justification, but would be strange to be seen as the main justification. Maximum hour laws are needed first and foremost to give workers an opportunity to rest and have time for themselves and their family, and to prevent their exploitation and abuse.

5.  Conclusions—​and Implications for Intra-​Worker Distribution Labour laws have various goals.68 Distributive justice is certainly not the only goal of labour law; it is probably not even the main one. However, it is one important goal that has been relatively neglected (as an independent justification) in the labour law literature. The goal of this chapter was to review several theories of distributive justice and examine to what

63 ibid 331. In a later, recent contribution Anderson applies republican theories of non-​domination to the labour context, arguing that the idea of non-​domination can support various labour laws, as well as possibly more radical interventions such as co-​determination—​Elizabeth Anderson, ‘Equality and Freedom in the Workplace: Recovering Republican Insights’ (2015) 31(2) Social Philosophy and Policy 48, 66–​8. I note this here because she stressed the connection between relational equality and non-​domination (at 65). However, her article focuses almost entirely on non-​domination rather than equality, and such arguments should be examined separately. See also Philip Pettit, Republicanism: A Theory of Freedom and Government (Clarendon Press 1997) 110–​19 (arguing that advancing non-​domination—​in line with the ideal of freedom as non-​domination—​is also egalitarian, but adding that it does not lead to ‘material egalitarianism’). There are obviously strong connections between minimising domination and distributive justice (see also Lovett (n 5)), but I believe, as noted in the introduction, that they are better construed as separate arguments. For a discussion of non-​domination arguments as justifications for labour law, see Guy Davidov, ‘Subordination vs Domination: Exploring the Differences’ (2017) 3 International Journal of Comparative Labour Law & Industrial Relations 365. Horacio Spector, another supporter of relational equality as a justification for labour law, relies especially on the connection of this idea to Kant, who rejected contracts ‘whereby people disclaim their equal worth and autonomy’—​Spector (n 50) 1145–​6. I believe it would be more appropriate to use dignity directly as a justification rather than distributive justice or equality in this case. 64  Miller (n 4) 242. 65  ibid 243. Compare to the recent Israeli legislation mentioned at n 47. 66  See Samuel R Bagenstos, ‘ “Rational Discrimination,” Accommodation, and the Politics of (Disability) Civil Rights’ (2003) 89 Virginia Law Review 825 for workplace discrimination law; Samuel R Bagenstos, ‘Employment Law and Social Equality’ (2013) 112 Michigan Law Review 225 for all other laws. 67  Miller (n 4) 269. 68  Which I discussed extensively in previous writings; see especially Guy Davidov, A Purposive Approach to Labour Law (OUP 2016).

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extent labour laws can be said to advance them (or, otherwise put, to what extent distributive justice theories can be used as justifications for labour laws). As we have seen, for the most part the different theories do not contradict each other; they all support several basic labour law protections. There is some difference of emphasis depending on which theory is adopted, but as long as we avoid extreme versions of the different theories, they can live side by side. Desert-​based distributive justice can support anti-​discrimination laws, pay equity laws (not only gender-​based but also pay equity for part-​time, fixed-​term, and temporary employment agency workers), as well as corrections of market failures leading to under-​valuation of workers in specific jobs or sectors, given their level of contribution. Distributional equality theories similarly support anti-​discrimination and pay equity law (broadly conceived), as well as laws supporting unionisation and collective bargaining; and minimum wage laws. If we adopt a broad view of distributional equality and include the distribution of risks as well, we find justification for unjust dismissal laws. And inspiration from Rawls’s difference principle can provide support for laws that protect/​advance the situation of low-​wage, precarious workers. Finally, relational equality theories support minimum wage laws; accommodation for people with disabilities; protection for precarious workers; and potentially (if adopting a broad view) also laws supporting unions and collective bargaining, and various other employment standards. It should be made clear that these justifications provide only a prima facie case for the above-​mentioned laws; a full consideration must also take into account additional justifications as well as possible critiques (conflicting normative arguments), apart from distributive justice. Alongside support for current labour laws, theories of distributive justice point attention to one area in which current laws are especially lacking: the proliferation of two-​tier (or dual) labour markets. There are two different levels to this problem, the micro level (of a specific organisation/​employer) and the macro level. At the micro level, the problem presents itself in three different ways. First, a distinction between full-​time, long-​term employees and other employees who are relegated to fixed-​term, part-​time, temporary, or otherwise ‘second grade’ contracts. Secondly, a division between ‘insiders’ who enjoy a full package of rights and benefits and ‘outsiders’ who work for the benefit of the organisation but are formally employed by a contractor or a temporary employment agency, where the level of wages and benefits is significantly lower. Thirdly, in unionised workplaces, there are sometimes collective agreements that create two tiers of workers, allowing veteran workers to enjoy generous benefits but depriving new workers of these benefits. In all three methods, workers at the ‘secondary’ markets are relegated to an inferior position. At the macro level, there are sharp distinctions between unionised and non-​unionised workplaces, which are even more extreme when comparing workers at governmental monopolies (who often have the power to exert exceptional pressure and enjoy exceptional rewards as a result) with low-​ wage workers in small private-​sector establishments. The sufficientarian approach associated with relational equality is not likely to support significant interventions to address intra-​worker disparities, as long as the workers in secondary markets are guaranteed minimum protections (minimum wage etc). However, the other two theories seem to support radical changes. This is true for distributive justice based on desert, because the sharp differences between workers noted earlier are often not based on contribution or effort (or any other desert-​base). The case for significant intervention is even stronger if we accept the ideas of luck egalitarianism (or otherwise the basic premise of distributional equality)—​as I think we should. The reasons for being in the secondary market are often—​even if not always—​arbitrary, mere bad luck. Sharp differences between

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the income and benefits of different workers that result from bad luck cannot be justified. Redistribution is justified, and required, to correct this injustice. The question then becomes how to separate differences in pay that can be justified (based on contribution/​effort) from arbitrary (bad luck) differences that cannot be justified, and what are the best methods to prevent/​correct the latter. A further complication that requires special attention is how to amend existing labour laws that cause distributional injustice, and how to do so without jeopardising the goals of these laws. It is important to realise that at least some of the problem of intra-​worker distributional injustice is caused by labour laws. One does not have to accept a strict ‘free market’ adherence to acknowledge that some degree of cost-​shifting as a result of labour laws takes places, and could lead to regressive redistribution, as noted earlier. One common strategy used by employers to avoid the costs of labour laws is shifting work to secondary labour markets, where costs can be minimised.69 Measures must be taken to prevent the proliferation of secondary markets and the ability to use them as ‘shelters’ from legal obligations. I have noted in Section 3 above that a careful distributional analysis is required for each labour law to examine the expected distributive results; legislatures have sometimes failed to perform such an analysis, or at least failed to adopt the necessary preventive measures. In some cases, the problem is not with costs created directly by labour laws but with strategies adopted by labour unions that lead to greater inequality between groups of workers.70 Again, the implication is not to avoid unionisation, but rather to finds ways to address and minimise such concerns. Our starting point should be that luck necessarily plays some role in a market economy, so if we want a market economy (and we do) we have to accept it to some extent. The goal is not to eliminate the impact of luck completely, but to minimise it as much as possible, especially by preventing clear-​cut cases of distributive injustice. Singling out the cases in which a distinction between groups of workers is not based on desert but rather results from mere bad luck is not easy; a full attempt to do so will have to await future research. For now, I will make just a few preliminary points. First, two-​tier collective agreements cannot be justified; they are a stark example of distributive injustice. Secondly, labour laws should not allow ‘temporary’ positions (whether in direct employment or indirectly through temporary employment agencies) that are not truly temporary in reality. When such methods are used only to relegate the worker to a secondary market, artificially, the distributional injustice cannot be tolerated. Thirdly, to minimise the distinction between unionised and non-​unionised workers, all effort must be made to ensure real and effective freedom of association; the ability of monopolies and their workers to exert excessive rents must be curtailed, possibly through price control (on the firms) and some limitations on the right to strike (on the unions); and a system of extension orders should be considered (to extend some of the benefits secured by unionised workers to non-​unionised workplaces as well). Finally, a maximum wage law, limiting the ratio between the top and bottom salaries in the same firm, is an important technique to limit distributive injustice, if we presume (as I think we can) that excessive wage variations can only be explained by considerable good/​ bad luck.

69 See eg Sharon Rabin-​Margalioth, ‘Cross Employee Redistribution Effects of Mandated Benefits’ (2003) Hofstra Labor & Employment Law Journal 311. 70  See Mundlak (n 8) 319–​21; Davies (n 8) 273–​6, 280–​1.

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9 Discrimination and Labour Law: Locating the Market in Maldistribution and Subordination Noah D Zatz

What is a discussion of anti-​discrimination law doing in a collection about labour law? An odd question, perhaps. True, prohibitions on employment discrimination were not among the initial waves of worker protections concerning organising, striking and collective bargaining, wages and hours, workplace injury, social security, and so forth. Today, though, the question seems odd because employment discrimination provisions are now commonplace and well integrated into the practice and teaching of labour law.1 Nonetheless, there is an awkward conceptual fit between the fields, at least as they commonly are understood. The standard ‘constituting narrative’ of labour law2—​one that predates the rise of anti-​ discrimination law—​is a story of partial decommodification. Markets characterised by an ‘inequality of bargaining power’3 must be restrained to vindicate the principle that ‘the labor of a human being is not a commodity’.4 The recent ferment in labour law theory largely has continued to anchor the field in market labour specifically, even when looking beyond employment relationships to broader concepts of labour market regulation.5 At first glance, employment discrimination law fits poorly within labour law’s constituting narrative. Instead, its practical legal development and theorisation both have emerged largely as specific, though centrally important, applications of general purpose or multi-​sector anti-​discrimination principles.6 More substantively, insofar as employment discrimination law has its own constituting narrative, it cuts in just the opposite direction as labour law’s. Discrimination occurs when, infected by bias, employers fail to fully commodify workers by treating them strictly as factors of production. Instead, such employers get distracted by workers’ unrelated human particularities, disrespecting them as market actors. By excising bias, employment discrimination law purifies market dynamics, not counteracts them. Of course, this conception centred on ‘direct discrimination’ (or, in

1  Orly Lobel, ‘The Four Pillars of Work Law’ (2006) 104 Michigan Law Review 1539. 2  Brian Langille, ‘Labour Law’s Theory of Justice’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011). 3  Paul Davies and Mark Freedland, Otto Kahn-​Freund’s Labour and the Law (3d edn, Stevens & Sons 1983); Mark Barenberg, ‘Workers: The Past and Future of Labor Law Scholarship’ in Peter Cane and Mark Tushnet (eds), The Oxford Handbook of Legal Studies (OUP 2003). 4 Clayton Act of 1914, codified at 15 USC § 17; Declaration Concerning the Aims and Purposes of the International Labour Organisation (Declaration of Philadelphia), § I(a) (1944). 5  Christopher Arup et  al (eds), Labour Law and Labour Market Regulation (Federation Press 2006); Simon Deakin and Frank Wilkinson, The Law of the Labour Market (OUP 2005); Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2011); David Weil, The Fissured Workplace (Harvard University Press 2014). 6  Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015); Stephen M Rich, ‘One Law of Race?’ (2014) 100 Iowa Law Review 201. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 9 © Noah D Zatz 2018. Published 2018 by Oxford University Press.

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the US, ‘disparate treatment’7) is itself contested, but typically not in ways more integrated with labour law.8 My contention here is that as labour law and anti-​discrimination law theorists scrutinise and attempt to stabilise our fields’ foundations, it is fruitful to consider explicitly how compatible those foundations are, and what insights might be shared. In particular, discrimination casts a different light on whether labour law is concerned exclusively and constitutively with market-​specific dysfunctions. In debates over labour law’s scope,9 feminist theorists in particular have urged that going ‘beyond employment’10 means attending not only to the wide varieties and determinants of work in labour markets but also to work performed outside them.11 Employment discrimination law, however, reminds us that even in labour law’s core institutional setting of conventional employment, economists’ market concepts provide neither a complete description of how work is organised nor a complete diagnosis of how it may go awry.12 In this way, workplaces conventionally located inside ‘the labour market’ raise problems for labour law that are not captured by its constituting narrative.13 These problems may operate along altogether different dimensions than labour–​capital conflict.14 More challenging still, labour–​capital conflict cannot itself be understood exclusively in market terms. Instead, that quintessential object of labour law may also be constituted by the social practices and power relations of, inter alia, white supremacy, as the literature on ‘racial capitalism’ insists.15 This chapter explores these themes through the lens of bilateralism, the location within the employer–​employee relationship (or its variants) of the wrongs the law seeks to prevent or remedy. Both fields’ conventional constituting narratives are strongly bilateral, but in the different ways already noted. Critical perspectives on both bilateralisms tend to press towards more structural analysis. But with different structures in each case—​white supremacy, patriarchy, etc on the one hand, capitalist labour markets on the other—​this structural turn seems to further diminish the common ground. Focusing on anti-​discrimination theory, I offer a heterodox conception of the structural problem that helps return anti-​discrimination law to the familiar ground of bilateral work relationships, albeit with a new understanding of the crucial injury at issue. The simple

7 For varied assertions of disparate treatment’s primacy, see Ricci v DeStefano, 557 US 557, 577 (2009) (‘Disparate-​treatment cases present “the most easily understood type of discrimination. . . .” ’) (quoting Teamsters v United States, 431 US 324, 335, fn 15 (1977)); Tristin K Green, ‘A Structural Approach as Antidiscrimination Mandate: Locating Employer Wrong’ (2007) 60 Vanderbilt Law Review 849. 8  But see SR Bagenstos, ‘Employment Law and Social Equality’ (2013) 112 Michigan Law Review 225; Noah D Zatz, ‘The Minimum Wage as a Civil Rights Protection: An Alternative to Antipoverty Arguments?’ (2009) 2009 University of Chicago Legal Forum 1. 9  Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (Hart 2006). 10  Alain Supiot, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (OUP 2001). 11  Adelle Blackett, ‘Emancipation in the Idea of Labour Law’ in Davidov and Langille (n 2) 430; and in the same volume, J Fudge, ‘Labour as a “Fictive Commodity”: Radically Reconceptualizing Labour Law’ and Noah D Zatz, ‘The Impossibility of Work Law’. 12  Chris Tilly and Charles Tilly, Work Under Capitalism (Westview Press 1998). 13  Noah D Zatz, ‘Does Work Law Have a Future If the Labor Market Does Not?’ (2016) 91 Chicago-​Kent Law Review 1081. 14 Guy Mundlak, ‘The Third Function of Labour Law:  Distributing Labour Market Opportunities among Workers’ in Davidov and Langille (n 2). Again, feminist legal theory has provided an important template by analysing labour law in terms of the politics of a ‘family wage’, situating workers in gendered relation not only to their employers but to their ‘dependants’ and the state. Alice Kessler-​Harris, In Pursuit of Equity: Women, Men, and the Quest for Economic Citizenship in 20th-​Century America (OUP 2001). 15  Cedric J Robinson, Black Marxism: The Making of the Black Radical Tradition (Zed Press 1983); Michael C Dawson, ‘Hidden in Plain Sight: A Note on Legitimation Crises and the Racial Order’ (2016) 3 Critical Historical Studies 143.

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idea, drawn from liberal egalitarian philosophical thought, is that institutions allocating opportunities for work and income ought to be structured to avoid distribution on morally arbitrary bases.16 Such bases include race, sex, and other grounds traditionally protected by anti-​discrimination law.17 This conception places direct and indirect discrimination on a common foundation without relying on a structural analysis of group hierarchy that is divorced from specific bilateral relationships.18 The harms inflicted on one worker by one employer ideally are addressed at that level because structural remedies fall short when they treat workers as fungible. By seamlessly crossing the direct/​indirect distinction, this conception acquires the distinguishing feature of neither systematically embracing nor systematically rejecting market ordering. Instead, it offers an analysis of both how markets can go astray and how they can advance justice, as can non-​market relationships.

1.  The Traditional Approaches: United by Bilateralism, Divided by Markets Employment discrimination law, like labour law generally, obviously regulates employment. But so what? Is it like the proverbial ‘law of the horse’?19 Theft, assault, fraud, and breach of contract might all occur between employers and employees, but the fact that a lawyer accustomed to representing employees might handle all these claims would not imply any coherent structure or rationale. And yet it is generally thought that labour law is more than an iterated doctrinal coincidence but rather is a meaningful field. At this level of a field’s constituting narrative, the most familiar accounts set employment discrimination law and labour law at loggerheads. They are united in employment but divided by the role of markets.

(a) Bilateralism in traditional labour law: the market bargain Labour law is the law of work under capitalism, understood a specific way. As Guy Davidov has recently observed, the attribution of ‘inequality of bargaining power’ to employment relationships has been and remains ‘by far the most widely accepted’ account of labour law.20 Precisely what that means and why it requires correction gets elaborated in various ways, but the consistent theme—​even among those who eschew ‘the bargaining power’ terminology—​is that the problems labour law addresses are specific to and emergent from market-​based allocation of labour. Thus, the essence of labour law is that it constitutes ‘restraints on’,21 ‘regulation of ’,22 or ‘interventions in’23 labour markets. These are grounded in rejection of the laissez-​faire ‘assumption that market forces are ordinarily adequate to

16  Seana V Shiffrin, ‘Egalitarianism, Choice-​Sensitivity, and Acccommodation’ in R Jay Wallace et  al (eds), Reason and Value:  Themes from the Moral Philosophy of Joseph Raz (OUP 2004); Sophia Moreau, ‘What Is Discrimination?’ (2010) 38 Philosophy & Public Affairs 143; Noah D Zatz, ‘Managing the Macaw:  Third-​ Party Harassers, Accommodation, and the Disaggregation of Discriminatory Intent’ (2009) 109 Columbia Law Review 1357. 17  Khaitan (n 6). 18  Noah D Zatz, ‘Disparate Impact and the Unity of Equality Law’ (2017) 97 Boston University Law Review 1355. 19  Frank H Easterbrook, ‘Cyberspace and the Law of the Horse’ [1996] University of Chicago Legal Forum 207. 20  Guy Davidov, A Purposive Approach to Labour Law (OUP 2016) 52. 21  Katherine VW Stone and Harry Arthurs, Rethinking Workplace Regulation: Beyond the Standard Contract of Employment (Russell Sage Foundation 2013) 4. 22  Samuel Estreicher and Gillian Lester, Employment Law (Thomson/​Foundation Press 2008) 1. 23  Marion G Crain, Pauline T Kim, and Michael L Selmi, Work Law: Cases and Materials (LexisNexis 2011) ix.

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deal with problems that arise in employment contexts’.24 Market actors making deals in rational pursuit of their economic self-​interest are what generates the need for intervention, whether in the name of efficiency (to correct ‘market failures’), distributive justice, or other values. This conception ‘is so entrenched in the way we think about labour law that it is difficult to conceive of an alternative view’.25 Although developed with respect to the employment relationship specifically, this bilateral conception of the problematic market bargain can readily be extended to forms of market work that either fall outside employment or can be captured only by expansive conceptions of that category. Fidelity to the traditional goals of labour law may require reaching beyond its traditional scope, not only with regard to the precise scope of the bilateral market relationship but even to more complex variants that may take ‘triangular’ shape and beyond, but which nonetheless retain the relevant functional features of employment.26 Thus, even accounts of labour law that disclaim reliance on the particular labour process features of employment nonetheless most often rely on a more general conception of the inadequacy of market ordering.27 In this vein, labour law remains fundamentally tethered to a project of market regulation focused on the participants in market bargains over work.

(b) Bilateralism in anti-​discrimination law: the distortion of market value Employment discrimination’s constituting narrative arguably is more fraught, at least among scholars, though not so in US courts and much lay understanding.28 ‘Bias’ plays a role roughly like that of ‘inequality of bargaining power’, the ill that must be corrected, even as it may be understood more or less expansively.29 Rather than being endemic to the market form, however, employer bias is understood as an intrusion on it: the vestiges of illiberal commitments to race and gender hierarchy, the eruptions of anti-​democratic passions poorly controlled, or the distortions of undisciplined irrationality. The problem is failure to act according to market principles, not the failure of market behaviour to deliver what matters most. Thus, ‘anti-​discrimination laws can help labor markets function more competitively’.30 This concept of discrimination as an intrusion upon markets—​ and thus anti-​ discrimination law as demanding a restoration—​is closely linked to its lack of specificity to the employment arena. Unlike labour law, employment discrimination law typically is understood as the workplace application of more general anti-​discrimination principles.31 Thus, the Civil Rights Act of 1964 contains the centrepiece of US employment discrimination law in Title VII; the other titles address discrimination in voting, education, public accommodations, government facilities, and public expenditures—​but not other types of employment regulation. In this transcontextual vein, what is consistent is the nature of discrimination’s disruption, the distortion by bias of spherically appropriate organising principles, whatever they are. We understand discrimination in government services as readily as in labour markets

24  Estreicher and Lester (n 22) 1. 25  Davidov (n 25) 21. 26  Judy Fudge, ‘The Legal Boundaries of the Employer, Precarious Workers, and Labour Protection’ in Davidov and Langille (n 9). 27  Alan Hyde, ‘What Is Labour Law?’ in Davidov and Langille (n 9). 28  Khaitan (n 6). 29  Stephen M Rich, ‘Against Prejudice’ (2011) 80 George Washington Law Review 1. 30  Estreicher and Lester (n 22) 192. 31 George Rutherglen, Employment Discrimination Law:  Visions of Equality in Theory and Doctrine (West Academic 2016) 14; Supiot (n 10) 144.

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because their two quite different organising principles may be undermined by the common threat of bias. No generalised account of discrimination would ever conceive of it in terms of ‘market failure’, whether broadly or narrowly construed. To the contrary, when the setting is labour markets, the narrative of external threat positions employment discrimination law as enforcing market rationality, not restraining it. As Mark Kelman put it in an influential article, the core employment discrimination principle is that market actors ‘are duty-​bound to treat those putative plaintiffs with whom they deal  . . .  no worse than they treat others who are equivalent sources of money. . . . A worker is essentially just her embodied net marginal product . . .’32 In Hazen Paper Co v Biggins,33 the US Supreme Court identified the ‘essence of age discrimination’ as the reliance on ‘inaccurate and stigmatizing stereotype[s]‌’, such as the notion that ‘productivity and competence decline with old age’; under the law, however, an employer ‘cannot rely on age as a proxy for an employee’s remaining characteristics, such as productivity, but must instead focus on those factors directly’. The leading sexual harassment opinion, Burlington Industries v Ellerth,34 expressed a similar view when assessing an employer’s legal responsibility for one of its supervisory employees’ sexual harassment of a subordinate. The Court saw the difficulty with standard agency analysis as the fact that ‘[t]he harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer’. In short, the law commands that employers be good capitalists, focused on worker productivity and their own bottom line, not distracted by social categorisation, hierarchy, and extrinsic motives. This conception of disparate treatment elegantly facilitates an alliance between two quite different legal theoretical stances. On the one hand, it appeals to a tort-​like conception of discrimination as blameworthy conduct that gives rise to a demand for corrective justice within a bilateral relationship. The act of discrimination is understood as a ‘personal wrong’35 that reflects the discriminating employer’s disrespect for the worker or, more generally, failure to give adequate weight to her interests. Tristin Green insists on the distinctive character of disparate treatment as an ‘intrinsically morally wrong act’ that reflects a ‘view that members of that [discriminated against] group are of less moral worth’.36 This ‘perpetrator perspective’37 ‘approach[es] the question of what makes discrimination wrongful by examining discrimination as an expression of various types of preferences’,38 thereby treating discrimination as an improperly motivated act. On the other hand, because economic decision-​making based on these wrongful preferences marks a deviation from market rationality, suppressing discrimination also means instructing employers to ‘ignore race’ and ‘focus solely on criteria related to productivity’.39 This opposition between discrimination and productivity can extend even into the more controversial claim of ‘disparate impact’ (indirect discrimination). When the US Supreme Court endorsed such claims in Griggs v Duke Power Co,40 it retained market-​perfecting rhetoric even while it dispensed with the perpetrator perspective. To determine which policies with a disparate impact must be stricken and which may be retained, the Court

32  Mark Kelman, ‘Market Discrimination and Groups’ (2001) 53 Stanford Law Review 833, 834. 33  507 US 604 (1993). 34  524 US 742 (1998). 35  Moreau (n 16). 36  Green (n 7) 874. 37 Alan David Freeman, ‘Legitimizing Racial Discrimination Through Antidiscrimination Law:  A Critical Review of Supreme Court Doctrine’ (1978) 62 Minnesota Law Review 1049. 38 Larry Alexander, ‘What Makes Wrongful Discrimination Wrong?:  Biases, Preferences, Stereotypes, and Proxies’ (1993) 141 University of Pennsylvania Law Review 149, 153. 39  Stewart J Schwab and Stephen L Willborn, ‘Reasonable Accommodation of Workplace Disabilities’ (2003) 44 William and Mary Law Review 1197, 1199. 40  401 US 424 (1971).

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characterised the law as requiring the ‘removal of artificial, arbitrary, and unnecessary barriers to employment’ in order to make ‘qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant’. On this view, employment discrimination law continues to require nothing more than merit-​based productivity considerations, not costly deviations from a market baseline.41 This, too, keeps the focus on individual employer decision-​making.

2.  Away from Bilateralism: Property Distribution and Racial Caste This section considers how important critiques of the constituting narratives discussed earlier only push employment discrimination and labour law further apart, away from shared bilateralism but no closer to common substantive underpinnings.

(a) Labour law: the roots of bargaining power outside the employment relationship A basic problem with labour law’s bilateralism is that focusing on the unequal employer–​ employee bargain obscures how inequality originates in the social relations that structure entrance into and potential exit from such bargains. The emphasis on unequal bargaining power suggests that so long as we get the power right, employment bargains would be unproblematic in principle. This, however, necessarily abandons the notion that markets in human labour pose a particular problem above and beyond those afflicting markets in general.42 The distinctive problem of labour markets lies in labour’s status as a ‘fictive commodity’,43 ‘a human activity which goes with life itself, which in its turn is not produced for sale but for entirely different reasons, nor can that activity be detached from the rest of life’.44 The irony, then, is that labour law’s narrow focus on the employment relationship bargained in the market neglects precisely the ‘rest of life’ that the Polanyian perspective declares is inevitably ‘embedded’ in labour markets. A version of this insight animated Sinzheimer’s path-​breaking work. As Ruth Dukes reconstructs, ‘the source of [workers’] subordination lay with the employer’s ownership of the means of production’.45 This is a question of the posture in which workers approach the wage bargain and what they face if they exit it. The injunction to ‘work or starve’ gains its force not simply from the market character of work but from its interaction with markets in food and with workers’ propertylessness, where food comes only from money and money comes only from wages. In this way, labour law’s constituting narrative risks reproducing the problem it aspires to solve: the way in which ‘this domination of the worker by “Property” was obscured by the notion of freedom of contract, which posited free agreements between legal persons, each the bearer of legal rights and legal capacity’.46 Labour law rejects the sanctity of contract, but 41  Schwab and Willborn (n 39); JH Verkerke, ‘Disaggregating Antidiscrimination and Accommodation’ (2003) 44 William and Mary Law Review 1385. 42  Paul C Weiler, Governing the Workplace: The Future of Labor and Employment Law (Harvard University Press 1990) 21. 43  Fudge (n 11). 44  Karl Polanyi, The Great Transformation:  The Political and Economic Origins of Our Time (Beacon Press 2001) 75. 45  Ruth Dukes, ‘Hugo Sinzheimer and the Constitutional Function of Labour Law’ in Davidov and Langille (n 2) 59. 46 ibid.

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its bilateralism focuses on reconstructing the deal—​most obviously in the aspiration for collective rather than individualised bargaining. It does not directly address the property relations that necessitate the employment contract’s reconstruction. This is one sense in which labour law constitutes and validates labour markets, not just restrains them.47 Thus, it profoundly misses the point to focus simply on bilateral bargaining and the resulting employment relationships, not on the political economic structures that shape bargaining power. These observations comport with certain efforts in labour law theory to move away from bilateralism. These suggest that ‘labour law scholarship will have to extend its reach to all policy domains that influence work relations or labour market outcomes’,48 including tax, trade, education, industrial policy, and so forth.49 Similarly, Freedland and Kountouris’s innovative notion of the ‘personal work profile’ incorporates not only a worker’s present relationship to a particular (putative) employer but also her simultaneous work or work-​related states (including both disability and family care work) and her work trajectory over time (including unemployment and retirement).50 This expansion beyond bilateralism, however, runs some risk of hollowing out labour law’s core.51 These developments generally are understood to be expansive in nature, as additions to the scope of labour law that come with a richer understanding of its goals and the means necessary to achieve them. Nonetheless, by attributing inequality within employment to the power relations created outside it, the question arises whether redressing the latter may seem to obviate the need to muck around with the former. This hollowing-​out dynamic is evident in attempts to impose a division of policy labour between market-​perfecting regulation, on the one hand, and redistributive tax-​and-​ transfer policy, on the other.52 Although these sometimes arise as bad-​faith arguments by those seeking labour market deregulation without any genuine interest in redistribution, even sincere proponents of ambitious distributive schemes sometimes count labour market liberalization among their benefits.53 This implication lurks in the observation that a universal basic income or other aggressive forms of decommodification—​in the sense of access to resources outside the wage bargain—​would enhance workers’ bargaining power in the labour market.54 If insufficient bargaining power is labour law’s raison d’être, then more decommodification through social welfare policy would seem to justify less decommodification through traditional labour law.

(b) Employment discrimination: from the perpetrator to the caste structure In employment discrimination law, too, the narrow focus on bilateral employment relationships has come under attack for bracketing structural context and accepting a market 47  Deakin and Wilkinson (n 5); Noah D Zatz, ‘Working at the Boundaries of Markets’ (2008) 61 Vanderbilt Law Review 857. 48  Harry Arthurs, ‘Labour Law After Labour’ in Davidov and Langille (n 2) 27. 49  John Howe, ‘The Broad Idea of Labour Law: Industrial Policy, Labour Market Regulation, and Decent Work’ in Davidov and Langille (n 2). 50  Freedland and Kountouris (n 5). 51  Guy Davidov, ‘The Reports of My Death are Greatly Exaggerated: “Employee” as a Viable (Though Over-​ Used) Legal Concept’ in Davidov and Langille (n 9). 52  Hugh Collins, ‘Theories of Rights as Justifications for Labour Law’ in Davidov and Langille (n 2); Daniel Shaviro, ‘The Minimum Wage, the Earned Income Credit and Optimal Subsidy Policy’ (1997) 64 University of Chicago Law Review 405. 53  Anne L Alstott, ‘Work vs Freedom:  A Liberal Challenge to Employment Subsidies’ (1999) 108 Yale Law Journal 967. 54  Erik O Wright, ‘Basic Income, Stakeholder Grants, and Class Analysis’ (2004) 32 Politics Society 79.

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baseline. For instance, Neil Gotanda’s classic critique of colour-​blindness ideology characterises the fetish of disparate treatment as an ideology of ‘unconnectedness’ that treats race as an individual attribute and racism as ‘irrational personal prejudices’ against people with a racial attribute. This excludes any ‘understanding that race has institutional or structural dimensions beyond the formal racial classification’.55 A large body of critical scholarship demonstrates that the conventional constituting narrative fails as a description of core employment discrimination doctrine. Most obviously, well-​established prohibitions on indirect discrimination (both disparate impact and non-​ accommodation) explicitly break from the bias model and consistently require employers to deviate from what profit-​maximising employment practices would counsel.56 Of course, this is precisely the basis on which many have questioned—​or attempted to sharply limit—​ those claims as deviations from core anti-​discrimination principles. In particular, a large literature has grown up attempting to distinguish market-​perfecting ‘anti-​discrimination’ (paradigmatically the disparate treatment prohibition) from redistributive ‘accommodation’ (paradigmatically affirmative action and reasonable accommodation mandates), with disparate impact liability allocated to one side or another depending on whether market rationality is a sufficient defence.57 This attempted division between market correction and redistribution is confounded by the inability of even relatively uncontroversial doctrines—​such as the prohibitions of disparate treatment and sexual harassment—​to be explained adequately from a market-​ perfecting perpetrator perspective.58 As discussed further below, disparate treatment liability attaches even when specific employment decisions based on protected status are economically rational.59 Similarly, it attaches even when the challenges of effective monitoring and management make it more costly to prevent, detect, or remedy discrimination than to accept some level of managerial error as a cost of doing business.60 The dominant view among courts and scholars working in this vein is that these doctrines show anti-​discrimination to be better understood as an effort to dismantle caste-​like relationships of structural subordination among groups.61 This turn to structural subordination typically is tied to an explicit incorporation of distributive justice aims.62 Understood in this way—​as an effort to override rather than perfect market distributions—​employment discrimination law starts to look much more at home within labour law. That said, it generally does so without incorporating a critique of capital–​labour wage bargaining and labour discipline as the specific source of how markets go astray. In this way, such structural accounts of employment discrimination by private employers remain continuous with those offered for government conduct in other domains. The incorporation of market-​overriding distributive aims triggers for employment discrimination law a new difficulty that parallels those for labour law. Distributive rationales 55  Neil Gotanda, ‘A Critique of “Our Constitution Is Color-​Blind” ’ (1991) 44 Stanford Law Review 1, 43. 56  Christine Jolls, ‘Antidiscrimination and Accommodation’ (2001) 115 Harvard Law Review 642; Samuel R Bagenstos, ‘ “Rational Discrimination,” Accommodation, and the Politics of (Disability) Civil Rights’ (2003) 89 Virginia Law Review 825. 57  Kelman (n 32); Schwab and Willborn (n 39); Verkerke (n 41); Samuel Issacharoff and Justin A Nelson, ‘Discrimination with a Difference:  Can Employment Discrimination Law Accommodate the Americans with Disabilities Act?’ (2001) 79 North Carolina Law Review 307; Green (n 7). 58  Bagenstos (n 56); Jolls (n 56); Zatz (n 16). 59  Bagenstos (n 56). 60  Owen M Fiss, ‘A Theory of Fair Employment Laws’ (1971) 38 University of Chicago Law Review 235; JH Verkerke, ‘Notice Liability in Employment Discrimination Law’ (1995) 81 Virginia Law Review 273; Amy L Wax, ‘Discrimination as Accident’ (1999) 74 Indiana Law Journal 1129. 61  Bagenstos (n 56); Jolls (n 56); Cheryl I Harris, ‘Whiteness as Property’ (1993) 106 Harvard Law Review 1709; Cass R Sunstein, ‘Three Civil Rights Fallacies’ (1991) 79 California Law Review 751; Khaitan (n 6). 62  Harris (n 61); Bagenstos (n 56).

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risk becoming unmoored from the bilateral employer–​employee relationship. Insofar as individual employment relationships matter merely as reflections of and increments in the broader structural patterns of ultimate importance, it becomes an open question whether retail intervention in those relationships is the best way to shift the structural patterns; were that so, employers could appropriately be held responsible for implementing such redistribution.63 Rather than a bilateral focus on employers’ discrimination against their employees, shifting the balance of employment opportunities to overcome stratification by race and sex (and so on) may require massive shifts in education, training, job creation, and even macroeconomic growth.64 Moreover, because these market-​overriding discrimination claims are ‘best conceived of as zero-​sum, distributive claims to a finite pot of redistributed social resources’, they must ‘compet[e]‌not only with the demands of others who seek accommodation (or the wishes of putative defendants) but with all claimants on state resources’.65 Even if what is at stake is the distribution of jobs, not merely the income conventionally linked to jobs, this may best be addressed through active labour market policies quite different from duties between employers and their own current employees or applicants. A useful thought-​experiment once was proposed by David Strauss. He embraced the standard distributive conception offered against a focus on retail bias, a conception in which the ultimate goal is ‘justice between racial groups’.66 On that view, individual litigation is an error-​prone, misdirected waste of resources. Instead, ‘employment discrimination laws should be designed to give employers incentives to hire and promote members of minority groups in proportion to their representation in the relevant population’. Under such an approach, ‘an employer can make whatever employment decisions it wishes within the minority employee population, so long as it maintains the required ratios’.67 In other words, the employer owes no duty to any individual employee. Its duty is to maintain an aggregate pattern. This aggregative approach could readily be generalised. Once one moves above the level of individual workers, it is difficult to see why even the individual employer remains a relevant unit of analysis. Consider two firms, one with an under-​representation of a group and the other with the equal and opposite over-​representation. On Strauss’s model, both would be in violation, but the violation would be cured if the firms merged. Vice versa, a compliant firm could produce two non-compliant firms by spinning off a division. From the perspective of inter-​group justice, there is no less reason to allow trade-​offs across firms than to allow trade-​offs across divisions within a firm. There might plausibly be reasons to care about patterns that exist within integrated labour markets at subnational scale, and about patterns at the levels of specific occupations, but neither of these would respect firm boundaries. Abstracting from those subtleties, one quickly gets to a system of tradable inequality permits, a hybrid of Derrick Bell’s fable of the ‘Racial Preferences Licensing Act’68 and systems of tradable emissions permits. A firm that deviates from racial parity may do so perfectly legally so long as it purchases a permit from another firm with offsetting demographics. If the goal is to increase aggregate African American employment, then by all means, let us 63  John Gardner, ‘Discrimination as Injustice’ (1996) 16 Oxford Journal of Legal Studies 353. 64  Cass R Sunstein, ‘The Anticaste Principle’ (1994) 92 Michigan Law Review 2410, 2450. 65  Kelman (n 32) 852. 66  David A Strauss, ‘The Law and Economics of Racial Discrimination in Employment: The Case for Numerical Standards’ (1991) 79 Georgetown Law Journal 1619, 1620. 67 ibid. 68  Derrick A Bell, Faces at the Bottom of the Well: The Permanence of Racism (Basic Books 1992).

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get the most bang for the buck. Firms that are particularly good at minority hiring will do even more of it thanks to the financial incentives, and their increases will more than offset the decreases at firms where resistance is more entrenched. As we have seen, labour law’s and employment discrimination law’s characteristic focus on bilateral work relationships both can readily be seen as epiphenomenal distractions from the broader structural forces that produce particular instances of inequality. The nature of those structural forces, however, tends to diverge along familiar lines of class versus race, etc. There are opportunities to bridge that divide by drawing on, for instance, the critical literature on racial capitalism.69 Bargaining in the shadow of property distribution is just one example of a broader point about the socially and legally determined stakes of unemployment. Southern states in the US taught a master class in this point during Jim Crow, utilising a range of practices that reduced the ability of African Americans to switch employers or exit the labour market. These practices often took the form of criminal prohibitions—​on vagrancy, on quitting work, on changing employers—​and criminal punishments, from convict leasing to parole, many of which have analogues today.70 Similarly, employment-​based visas in contemporary ‘guestworker’ programmes, as well as employers’ capacity to trigger immigration enforcement against unauthorised workers, link unemployment to the state violence of deportation.71 Thus, the political structures that shape ‘economic’ bargaining power include racialised structures of property distribution, criminal prosecution and punishment, impunity for private violence, and so on. Analyses of this form, promising as they are, remain at a structural level that risks divorce from the bilateral bread-​and-​butter of both employment discrimination and labour law. So rather than develop these points further, I  turn to the possibilities for linking broad distributive concerns to the workings of individual employer–​employee relationships.

3.  Back to Bilateralism: The Injured Worker, Not the Perpetrator Employer Is there a route back down from these heights to regulation of employment relationships? And might employment discrimination law and labour law both follow a similar route? One possible answer is that forging such a path depends on sidelining the distributive concerns that propelled the structural turn discussed earlier. Labour law certainly offers resources to do so via its concern for workplace subordination, but it is less obvious what that might mean for employment discrimination law, if not reversion to a perpetrator perspective. 69  Robinson (n 15); Dawson (n 15). 70  Angela Y Davis, ‘From the Prison of Slavery to the Slavery of Prison: Frederick Douglass and the Convict Lease System’ in Bill E Lawson and Frank M Kirkland (eds), Frederick Douglass:  A Critical Reader (Blackwell 1999); Robin DG Kelley, Hammer and Hoe: Alabama Communists During the Great Depression (25th anniversary edn, University of North Carolina Press 2015 [1990]); Risa L Goluboff, The Lost Promise of Civil Rights (Harvard University Press 2007); Douglas A Blackmon, Slavery by Another Name: The Re-​Enslavement of Black Americans from the Civil War to World War II (Anchor Books 2009); Sarah Haley, No Mercy Here: Gender, Punishment, and the Making of Jim Crow Modernity (University of North Carolina Press 2016); Angela Y Davis, ‘From the Convict Lease System to the Super-​Max Prison’ in Joy James (ed), States of Confinement: Policing, Detention, and Prisons (St Martin’s Press 2000); Amy Dru Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age of Slave Emancipation (CUP 1998); Noah D Zatz, ‘A New Peonage?: Pay, Work, or Go to Jail in Contemporary Child Support Enforcement and Beyond’ (2016) 39 Seattle Law Review 927. 71  Maria L Ontiveros, ‘Immigrant Workers and the Thirteenth Amendment’ in Alexander Tsesis (ed), The Promises of Liberty: The History and Contemporary Relevance of the Thirteenth Amendment (Columbia University Press 2010); Kathleen Kim, ‘Beyond Coercon’ (2015) 62 UCLA Law Review 1558.

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Resisting that route, this section sketches how a return to bilateralism in employment discrimination law can proceed via a reconceptualisation of its distributive project.72

(a) Individual injury in indirect discrimination How might employment discrimination law overcome the tension between a conventional, bilateral theory that is rather shallow in its ambition and a more structural competitor that either abandons bilateralism or remains wedded to it arbitrarily, even dysfunctionally? A useful entry point is the Achilles heel of the perpetrator perspective, its inability to account for the bar on so-​called ‘rational discrimination’. Rational discrimination occurs when an employer motivated purely by conventional market money-​making goals will make decisions based on applicants’ or employees’ race, sex, or other protected status.73 When life expectancy is difficult to predict but correlates with sex, employers might use employees’ sex as an actuarial factor in pension policy. When customers prefer to be served, or prefer not to be, by workers of a particular race, then employers might use employees’ race as a proxy for expected customer satisfaction. And so on. Although such employers act for precisely the sorts of profit-​maximising reasons ordinarily legitimated in the labour market, US courts consistently prohibit rational discrimination as a form of disparate treatment.74 Although one can generate a variety of plausible market-​failure rationalisations for the prohibition on rational disparate treatment,75 the most direct and powerful failing shifts from the perpetrator to the victim perspective. Whether the employer is boiling over with animus or coolly assessing her as ‘embodied net marginal product’,76 either way the result is the same: the worker loses a job because of her sex, race, etc.77 This very simple idea—​that the injury at the heart of employment discrimination law is to suffer workplace harm because of one’s protected status, what I call ‘status causation’78—​ coheres with the strong emphasis on causation in disparate treatment claims. Notably, it has no fixed relationship to market rationality, even in the disparate treatment context. Some forms of disparate treatment arise as deviations from market rationality and would be corrected by adherence to it. Others arise as manifestations of market rationality and would be corrected by specific deviations from it. The real power of a status causation framework comes from its ability to connect disparate treatment to the other forms of liability that seem to veer away from bilateralism and into general distributive concerns. Consider the relationship between the prohibition of disparate treatment and the mandate of reasonable accommodation.79 The quintessential non-​accommodation case involves a worker who loses a job without the employer taking his disability into account. Instead, the employer applied some ‘neutral’ rule: to work here, you must use this tool proficiently. The worker could not use the tool; that is all the employer needed to know. But one reason why the worker could not use the tool was because of his disability (as well as how the tool was designed). The worker could not use the tool because of his disability. The worker could not get the job because he could not use the tool.

72  For another effort to address the same problem, see Tarunabh Khaitan’s excellent recent book (n 6) ch 6. 73  Bagenstos (n 56); Stewart Schwab, ‘Is Statistical Discrimination Efficient?’ (1986) 76 American Economic Review 228. 74  City of LA Department of Water & Power v Manhart, 435 US 702 (1978); UAW v Johnson Controls, Inc, 499 US 187 (1991); Ferrill v Parker Grp, 168 F3d 468 (11th Cir 1999). 75  Schwab (n 73); Bagenstos (n 56). 76  Kelman (n 32) 835. 77  Owen M Fiss, ‘A Theory of Fair Employment Laws’ (1971) 38 University of Chicago Law Review 235. 78  Zatz (n 18). 79  Zatz (n 16); Zatz (n 18).

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Therefore, the worker did not get the job because of his disability: status causation. That the employer cared only about his tool use, not his disability, is as cold a comfort here as it is in the case of rational disparate treatment. Again, the relationship to market rationality is indeterminate in theory. The employer might insist on proficiency with the tool because it is the most cost-​effective one available, in which case an accommodation will require a costly deviation from market rationality. But maybe the employer insists to favour his lazy nephew who is idiosyncratically good at using this tool (or owns the company that produces them), and the employer wants to subsidise his kin rather than maximise profits. Now a little market discipline might improve matters for equality.

(b) Bilateralism and the rejection of fungibility among workers The connection between status causation and bilateralism is illustrated by analysis of disparate impact liability, seemingly the most structurally oriented aspect of employment discrimination law. In Griggs,80 the employer required high school graduation as a hiring credential in circumstances where this credential was distributed unequally by race. Thus, racial disparity in employment was produced by racial disparity in education, itself produced by pervasive discrimination in the educational sphere at that time. Under these circumstances, there were African American job applicants who were denied a job for lack of a degree and lacked a degree because of their race. Absent a racist education system, they would have gotten the degree and gotten the job. In this regard, they are like the quintessential non-​accommodation plaintiff—​harmed by a policy that does not take status into account and yet one that imposes harm on some individuals because of their protected status. In the disparate impact setting, however, such victims cannot be identified individually. In contrast, the paradigmatic non-​accommodation case determines that the plaintiff cannot use the tool because her particular impairment interacts with tool use in a known way. In Griggs, however, not all African American non-​graduates were non-​graduates because of their race. True, 88% of blacks did not graduate, but neither did 66% of whites. Equalising the rates requires shifting 22% of blacks from non-​graduate to graduate status, but that is only one-​quarter of all black non-​graduates. Furthermore, the pool of non-​graduates cannot feasibly be sorted into those whose non-​graduation is and is not attributable to their race. The distinctive function of disparate impact liability is, in my view, to use statistical evidence to identify the presence of this harm within a larger pool even when individual victims cannot reliably be identified.81 Changing the policy, however, will prevent future victimisation. How does this relate to bilateralism? The crucial point is that the requisite injury occurs at the level of individuals, not groups, even though its existence only can be made visible by looking for patterns in groups—​aggregations of individuals. From this perspective, two individuals are not rendered fungible simply because their employment makes the same incremental contribution to their group’s aggregate employment level. Recall Strauss’s proposal: employers should focus on their ‘bottom line’ while remaining free to draw intra-​group distinctions. That dictum contradicts the most theoretically perplexing disparate impact decision of the US Supreme Court, Connecticut v Teal.82 Teal began

80  See n 40.

81  Zatz (n 18).

82  457 US 440 (1982).

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with a fairly typical challenge to the standardised test used to determine which applicants for promotion were eligible; the test disproportionately screened out African American applicants. As among those eligible based on test results, however, the employer hired African Americans at a higher rate. This ad hoc affirmative action resulted in a ‘bottom line’ in which promotions were racially proportionate to the original (pre-​testing) applicant pool. The employer argued that this bottom-​line parity insulated it from disparate impact liability. If proportional distribution of promotions by race was the goal, then the employer’s approach fulfilled it.83 The Supreme Court rejected this ‘bottom line defense’ in a notoriously confusing opinion.84 My analysis, however, makes sense of it. The problem with the test was that some test-​takers failed it because of their race. These individuals lost promotional opportunities because of their race. They suffered status causation. That injury was personal to those individuals. It could not be cured or offset by awarding promotions to other African Americans. Although in Teal this analysis operates at the level of the promotional process, the same logic applies at the level of the firm and at the level of the labour market as a whole. Structural changes to increase aggregate black employment are not simple substitutes, let alone more efficient ones, for firm-​level changes that alter outcomes for the particular individuals who suffer racial harm. The notion that employment discrimination law aims to minimise status causation is readily understandable within conventional—​though of course contested—​streams of liberal egalitarian thought.85 In particular, it appears to be a simple application of what is known as ‘responsibility-​tracking’ or, from its critics, ‘luck’ egalitarianism.86 Resources subject to principles of just distribution should be allocated according to features of individuals, including their actions, for which they are responsible and ‘should not be influenced by morally arbitrary factors’.87 Race, gender, and other typical statuses protected by employment discrimination are obvious candidates to be among the morally arbitrary factors that should not drive resource distribution. The reason why this conception of distributive justice is compatible with, and even demands, some degree of bilateralism is that the ultimate matter of concern is the processes that drive outcomes for individuals.88 This proceduralism is why this school of thought is sometimes referred to as a ‘left-​libertarian’ approach. This egalitarianism is leftist because it views property and contract as political choices about how to structure human relationships, and thus subject to design constraints that advance underlying goals of human freedom and equality.89 There is no a priori commitment to the security of private property or the freedom to contract, though in fact in some form these may be quite important.90 But it is libertarian insofar as it aspires to protect individuals’ ability to order their affairs in

83  Cases like Teal create a serious difficulty for Khaitan’s effort to harmonise the group and individual levels of his analysis into an account of discrimination law as having dual purposes that are systematically aligned (n 6) ch 6. 84  Richard T Ford, ‘Civil Rights 2.0: Encouraging Innovation to Tackle Silicon Valley’s Diversity Deficit’ (2015) 11 Stanford Journal of Civil Rights & Civil Liberties 155. 85  Zatz (n 16). 86  Daniel Markovits, ‘Luck Egalitarianism and Political Solidarity’ (2008) 9 Theoretical Inquiries in Law 271; Elizabeth S Anderson, ‘What Is the Point of Equality?’ (1999) 109 Ethics 287. 87  Shiffrin (n 16) 273. 88 For another account of anti-​ discrimination law grounded in individual harm, see Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (OUP 2014). 89  Gerald A Cohen, ‘Back to Socialist Basics’ (1994) 1/​207 New Left Review 3. 90  Philippe Van Parijs, Real Freedom for All (OUP 1995); Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality (Harvard University Press 2002).

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pursuit of their own conception of the good life, which in turn requires significant responsibility for the outcomes of those pursuits. The upshot of this proceduralism is that aggregate—​or in Nozick’s terms, ‘patterned’91 —​ outcomes do not supply the ultimate criteria for whether justice is being achieved, though they may be relevant indicators, as in disparate impact theory. And yet standard accounts of the distributive goals of both labour law and employment discrimination law generally take group outcomes as providing the relevant benchmark. That is why they both are subject to the standard objection that it would be more direct, fair, and efficient to focus on structural policies, especially via tax-​and-​transfer, that achieve those aggregate benchmarks rather than piecemeal attention to particular employment relationships.92 If it is the aggregate outcome that matters, then individual members of that aggregate are fungible—​it does not matter which workers are unemployed versus employed or make this wage rather than that, so long as workers overall are doing well enough. That kind of fungibility ignores intra-​group difference. This includes both intra-​group difference with respect to those choices for which individuals are responsible and also intra-​group difference with respect to subjection to unjust practices. Employment discrimination law consistently rejects this kind of fungibility, not only in the relatively controversial case of the ‘bottom-​ line defense’ discussed earlier, but pervasively.93 The simple, consistent point is that if one worker loses a job because of her race, the remedy must go to that worker, not to another worker who shares the same protected status.

(c) Revisiting labour law’s distributive function Does this account of employment discrimination law have any significance for labour law more generally? It might. Labour law, after all, has long sounded in the correction of economic inequality, namely that emergent from inequality of bargaining power in labour markets. Superficially, these seem to be different forms of equality: labour law’s runs between workers and employers, employment discrimination’s from worker to worker. But if we think of bilateral employment relationships as part of the economic structure of society—​ even the ‘basic structure’ that Rawls argued is the proper object of justice—​each field is simply one component in the broader institutional design project of advancing the freedom and equality of all citizens.94 If the problem of inequality of bargaining power emerges from problems in the distribution of resources, including not only productive capital but also many of the determinants of individual capabilities, then labour law’s problem linking structural inequality to bilateralism is not so different in kind from employment discrimination law’s problem. That is especially clear where the law forbids ‘rational’ employer action, something characteristic of labour law generally and of the swathes of employment discrimination law that motivate alternatives to the perpetrator perspective. When an employer pays what the market will bear to a worker economically dependent on employment and relatively low skilled, that employer is doing something similar to paying African American workers less because of the consequences of racial inequality in education, criminal justice, and so forth. Indeed, I have suggested elsewhere95 that this area 91  Robert Nozick, Anarchy, State, and Utopia (Basic Books 2013 [1974]). 92  Zatz (n 8). 93  Zatz (n 18). Eg courts allow ‘sex plus’ discrimination claims by women in female-​dominated job categories where the employer strongly favours (relative to all men) women with a particular additional characteristic (like being unmarried) while barring women (but not men) who lack that characteristic. 94  John Gardner, ‘Liberals and Unlawful Discrimination’ (1994) 9 Oxford Journal of Legal Studies 1. 95  Zatz (n 8).

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of convergence—​where both labour law and employment discrimination law focus primarily on altering market-​driven outcomes against the backdrop of unjust distribution of bargaining power—​makes new sense of the relationship between accommodation requirements in discrimination law and wage regulation in labour law; that includes their shared puzzle of bilateralism. The same might be true of important conditions of employment that are not monetised for workers but, for employers, are fungible with wage costs. Occupational safety and health, working hours, and family and medical leave may be candidates. Insofar as the underlying problem is fair distribution, however, there is no reason to limit either labour law or employment discrimination law to market-​driven injustice. It is an observation basic to labour law, institutional economics, and the sociology of work that employment within firms is managed by hierarchy, not markets. Bosses (or teams, or software) exercise ongoing power over subordinates. And from a management perspective, this exercise of discretionary power entails agency costs, creating opportunities for supervisory power to diverge from market rationality at the level of the firm. Employment discrimination law adds the insight that this problem of discretion also operates with regard to hiring into the firm. If these ‘non-​market’ dynamics within firms systematically produce results that deviate from just distributions, then it makes perfect sense for law to seek to suppress those dynamics. If people of colour lose job opportunities because of their race, that problem is not fundamentally different when that injustice arises from market-​driven bargaining versus exercises of supervisory discretion that deviate from firm-​level interests. To the firm, these may merely be agency and error costs that must be accepted because the cure is more expensive than the disease, but from a regulatory perspective, they are a problem of a higher order. An important question is whether any of labour law, discrimination aside, can be understood as confronting distributive questions of this sort. To be sure, the exercise of supervisory discretion, and its limitation by just-​cause dismissal, seniority-​based pay and promotion, and so on, are classic subjects of both direct regulation and collective bargaining. But insofar as such discretion (when unconstrained) is exercised essentially randomly—​rather than in ways that are socially patterned and predictable—​the problem of its regulatory control may look more like the firm’s own internal problem, and thus a weaker candidate for intervention. That certainly is consistent with the US model of only selective deviation from at-​will employment. But it may well be that some of the problems of inter-​worker distribution that Guy Mundlak has identified as labour law’s hidden ‘third dimension’ have a distributive character analogous to those familiar in employment discrimination; that may be especially likely when they are negotiated by unions that use non-​market (hierarchical or democratic) means to choose among inter-​worker distributions that are equally costly to the employer on net.96

4.  Revisiting Subordination after Decentring the Market The preceding discussion focused on economically distributive projects within labour law and employment discrimination law. But the resulting stance in relation to markets—​that they neither systematically create nor systematically correct either field’s problems—​might have broader application, including to labour law’s prong focused on workplace subordination. This suggestion coheres with arguments, different as they are in particulars, from 96  Mundlak (n 14).

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Blackett97 and Langille that ‘ “inequality of bargaining power” has cramped our thinking about labour law and has held us hostage to a thin normative ideal’.98 Langille calls for articulating the upsides of markets, a search for ‘something positive’ that explains why ‘more equal labor markets, and their outcomes, are a good thing’.99 Doing so creates room for ‘a theory which explains why market activity and economic growth are desirable in the first place’.100 If labour law has something positive to say about (appropriately constructed and regulated) labour markets, then labour law must also have something critical to say about (at least some) non-​market forms of work—​or at least about some ways in which work within ‘labour markets’ may deviate from idealised market ordering. In other words, not all decommodification is created equal; some forms constitute no improvement, or even a deterioration, in the circumstances of work that are labour law’s core concern.101 That, recall, is employment discrimination law’s home turf. This suggestion resonates with some aspects of the inequality of bargaining power concept. Although it is amenable to the structural interpretation discussed earlier, another strand operates at some remove from the problem of market power—​and the terms of the bargain struck—​but instead emphasises the fictive character of the commodity bargained over.102 That is, labour law’s problem arises from the fact that the human embeddedness of labour requires that its transfer occurs via ongoing social relations. That is why labour law is at its apex when work is organised by command-​and-​control within the firm (even if entry into that control is by bargain) rather than by arms-​length bargains for a discrete product.103 If, however, this fictive character means that labour law addresses problems that arise when employment deviates from stylised market ordering, then it becomes quite peculiar to see those problems as deriving exclusively from work relationships constructed through labour markets. The fact that labour markets can and do systematically produce subordination cannot bear the inference that only labour markets can produce such subordination at work. At this juncture, Blackett’s analysis complements Langille’s by highlighting how labour law must look beyond the confines of conventional labour markets and include slavery and forced labour within its ambit. To focus on, and to theorise from, labour markets alone is—​ and has been—​to condemn labour law to silence or befuddlement about slavery and forced labour,104 the most abhorrent—​and thoroughly racialised—​means of organising human activity into economic production. How bizarre! Thus, ‘labour market regulation alone as the core idea of labour law offers a dangerously thin conceptual starting point’.105 Slavery and forced labour present particularly extreme versions of labour law’s core concerns with subordination, not outliers relative to the core problems of labour markets. Chattel slavery in particular represents the ultimate institution of dehumanisation,106 one that ‘solves’ the problem of labour’s human embeddedness by denying the humanity of those whose bodies labour. Moreover, there are ample continuities not only in labour management techniques107 but even in nominal legal protections108 between unfree and free labour regimes.

97  Blackett (n 11). 98  Langille (n 2) 110. 99 ibid. 100 ibid. 101  Zatz (n 13). 102  Fudge (n 11). 103 Stephen Nayak-​Young, ‘Revising the Roles of Master and Servant:  A Theory of Work Law’ (2014) 17 University of Pennsylvania Journal of Business Law 1223. 104  Blackett (n 11). 105 ibid. 106  Dukes (n 45). 107  Edward Baptist, The Half Has Never Been Told:  Slavery and the Making of American Capitalism (Basic Books 2014). 108  Blackett (n 11) 425.

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Consider the relationship between labour law and prohibitions on slavery, involuntary servitude, and forced labour. Surely these constitute labour law’s foundation, not an entirely separate topic.109 As such, they illustrate the point that market ordering can further labour law’s purposes relative to certain non-​market forms.110 That is the central insight of Pollock v Williams, the high-​water mark of involuntary servitude jurisprudence in the US: ‘When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work.’111 The corollary of this fundamental right to quit—​and thereby to bargain over staying—​is the right to strike’s centrality within labour law.112 Forced labour may seem distant from labour law’s contemporary concerns, but less so as one considers both slavery’s incorporation into capitalist development and its projection towards the present through colonial relationships113 and forms of neoslavery like those of the US institutions of convict leasing and the chain gang,114 as well as prison labour.115 Moreover, physical coercion by both private and state actors persists in matters of trafficking and deportation116 and in emergent practices that criminalise unemployment, especially among low-​income communities of colour subject to non-​custodial forms of criminal justice supervision and coercive debt collection.117 Forced labour represents merely an example of a more general claim to decentre market work within labour law theory. That more general point extends to care work within families, which generations of feminist scholars have argued—​seemingly with little impact on labour law theory generally—​can (and historically does) exhibit the exploitation, subordination, and dependency that labour law attacks in labour markets.118 Not coincidentally, all these practices are pervasively structured by and constitutive of the race and gender stratification central to discrimination law. Even efforts to incorporate non-​market work and thereby expand labour law’s scope often remain curiously tethered to labour law’s traditional emphasis on market ordering. The validation of non-​market work relies upon linking it to the market. Thus, in a tradition tracing back at least to Engels, feminists have theorised familial care work as a practice of reproductive labour.119 What is reproduced, however, is the capacity to work in labour

109  cf Deakin and Wilkinson (n 5). 110  Lea S VanderVelde, ‘The Labor Vision of the Thirteenth Amendment’ (1989) 138 University of Pennsylvania Law Review 437. 111  322 US 4, 18 (1944). This passage also vividly illustrates the interaction between interpersonal subordination and economic dependency. 112  James G Pope, ‘Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude” ’ (2010) 119 Yale Law Journal 1474. 113  Blackett (n 11). 114  Haley (n 70); Davis, ‘From the Prison of Slavery to the Slavery of Prison (n 70). 115  Noah D Zatz, ‘Prison Labor and the Paradox of Paid Nonmarket Work’ in Nina Bandelj (ed), Economic Sociology of Work (Emerald Press 2009); CF Fenwick, ‘Private Use of Prisoners’ Labor: Paradoxes of International Human Rights Law’ (2005) 27 Human Rights Quarterly 249. 116  Kim (n 71). 117  Zatz (n 70). 118  Michelle Barrett and Mary McIntosh, ‘The “Family Wage”:  Some Problems for Socialists and Feminists’ (1980) 11 Capital & Class 51; N Folbre, ‘Exploitation Comes Home:  A Critique of the Marxian Theory of Family Labour’ (1982) 6 Cambridge Journal of Economics 317; Nancy Fraser and Linda Gordon, ‘A Genealogy of Dependency:  Tracing a Keyword of the US Welfare State’ (1994) 19 Signs 309; Dorothy E Roberts, ‘The Value of Black Mothers’ Work’ (1994) 26 Connecticut Law Review; Katharine Silbaugh, ‘Turning Labor into Love: Housework and the Law’ (1996) 91 Northwestern University Law Review 1; Anne L Alstott, No Exit: What Parents Owe Their Children and What Society Owes Parents (OUP 2004); Blackett (n 11); Fudge (n 11). 119  Folbre (n 118); Rayna Rapp, ‘Family and Class in Contemporary America: Notes Toward an Understanding of Ideology’ in Barrie Thorne and Marilyn Yalom (eds), Rethinking the Family: Some Feminist Questions (Longman 1982); Ann Ferguson, Blood at the Root (Pandora Press 1989).

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markets. Similar patterns are endemic to analyses of coerced labour as integral to, even constitutive of, raced and gendered capitalism. Focusing on the porous border between market and non-​market work, as I have often done myself,120 risks tethering analysis of the latter to the former. Much as Fudge, for instance, pushes beyond a ‘labour market regulation’ framework to insist rightly that labour law include ‘the problems of incorporating labour into the market and the reproduction of labour’,121 the labour market remains the touchstone for a field that includes ‘all of the regulatory dilemmas that any attempt to govern the labour market must confront’.122 Freedland and Kountouris likewise tether their move beyond bilateralism and into ‘personal work relations’ to a labour market nexus, for instance when they justify their inclusion of unpaid volunteers by virtue of ‘their significance to the functioning of labour markets’.123 Blackett goes further by rejecting labour market regulation as labour law’s core, yet she retains a more general market nexus by invoking a framework of ‘resistance to the commoditization of the factor of production that is labour’.124 Rather than pursuing this problem of labour outside the market, I have tried to reverse course, turn inward, and reconsider whether it is the market character of market work that underlies the labour law project. In other words, we might return to the Polanyian insight not only that markets are but one form of economic organisation but also that what we call ‘markets’—​and in particular labour markets—​always fail to achieve the ‘self-​regulating’ character that liberal thought attributes to them, that markets in labour are never just that.125

5. Conclusion Focusing on matters of distribution, I have suggested how a particular liberal conception can make sense of employment discrimination law in ways that account for the broader structural context that shapes employment while continuing to bring that account to ground in the experiences of individual workers within particular employment relationships. That bridging, in conjunction with a capacious account of how markets may either produce or counteract injustice, suggests opportunities for placing employment discrimination law and labour law on a shared footing. Doing so, however, will require further attention to the aspects of labour law that emphasise interpersonal subordination, which likewise may be enriched by a more contingent relationship to the market. This domain of subordination also may be where labour law has the most to offer employment discrimination law. The most obvious application is to the law of harassment. In this domain, employment discrimination scholars rightly have shown the distributive significance of hostile work environments, how they may influence occupational segregation, job success, and advancement in ways that are functionally equivalent to more direct control over hiring, firing, pay, and promotion.126 Yet there always has been a competing 120  Zatz (n 115). 121  Fudge (n 11) 136. 122 ibid. 123  Freedland and Kountouris (n 5) 356. 124  Blackett (n 11) 421. To be clear, I do not mean to deny that commoditisation is implicated by Blackett’s examples, nor that this commoditisation is part of the dynamic that produces the need for emancipatory resistance, just to suggest that this relationship to markets is a contingent rather than essential one. Any specific examples will raise difficult questions about how to give content to notions of production and labour without either using market society as a baseline or incorporating all human activity with social significance. Zatz (n 11); Noah D Zatz and Eileen Boris, ‘Seeing Work, Envisioning Citizenship’ (2014) 18 Employee Rights and Employment Policy Journal 95. 125  Tilly and Tilly (n 12). 126  Vicki Schultz, ‘Reconceptualizing Sexual Harassment’ (1998) 107 Yale Law Journal 1683.

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analysis grounded in dignitary affront,127 one that remains important for a worker who bears it without economic consequence.128 This non-​economic aspect, moreover, is not unique to harassment. Instead, it is continuous with the long-​standing set of concerns around self-​respect, dignity, and stigmatisation that accompany more tangible forms of discrimination.129 This, too, is clarified by returning to slavery as a touchstone for both labour law and anti-​discrimination law, one that speaks to labour not only as a site of economic expropriation but also a site of interpersonal violence, one that both reflects and reproduces ‘the ontological distinction between superior and inferior humans . . . codified as race.’130 One virtue of labour law’s traditional ‘inequality of bargaining power’ notion was its effort to integrate matters of economic inequality and day-​to-​day subordination at work. Although analytically separating these clearly has its benefits,131 this discussion also suggests some of what may be lost, whether the paradigm case is enslavement or a wage bargain. Any effort to analyse these in an integrated fashion will be aided by approaching them as both labour law problems and discrimination problems, and as both inextricable from yet irreducible to the problems of markets under racial capitalism.

127  Anita Bernstein, ‘Treating Sexual Harassment with Respect’ (1997) 111 Harvard Law Review 445. 128  Harris v Forklift Sys, 510 US 17 (1993). 129  Kenneth L Karst, ‘Foreword: Equal Citizenship Under the Fourteenth Amendment’ (1977) 91 Harvard Law Review 1; T Shelby, We Who Are Dark:  The Philosophical Foundations of Black Solidarity (Harvard University Press 2005). 130  Dawson (n 15) 147. 131  Davidov (n 20).

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10 Structures of Exploitation Jonathan Wolff*

The misery of being exploited by capitalists is nothing compared to the misery of not being exploited at all. Joan Robinson, Economic Philosophy (first published 1962, Penguin 1964) 46

1.  Introduction: Two Puzzles about Exploitation I begin with a couple of well-​known puzzles about exploitation, one practical, one theoretical. The practical puzzle is that, in the general case, and looking only at the immediate relation of exploitation, often the only thing worse than being exploited is not being exploited. For those on exploitative wages and terrible working conditions, the most likely consequence of the end of exploitation is no job and no wage. And had that appeared a better option then the exploited person would have already chosen it.1 The second puzzle is theoretical. There are very few fully determinate accounts of exploitation. The best known comes from the Marxist tradition, either based on the labour theory of value, or a neo-​Marxist naturalised version of the same insight. (By ‘naturalised’ I mean an account that preserves the moral insight but removes it from Marx’s technical theory and terminology.2) The basic Marxist suggestion is that the core of exploitation is a matter of working more hours than it takes to make anything you can buy with your wages. Hence you ‘lose labour’ through employment, and someone else profits. The puzzle, though, is that almost everyone today is prepared to use the term ‘exploitation’ at least in the most extreme cases, and relatively few people think that the Marxist account is sound.3 So what do people think they are talking about when they use the term ‘exploitation’? In particular, what is the cut-​off point to distinguish exploitative and non-​exploitative labour? And where are we to look without endorsing some version of the neo-​Marxist account?4 In this chapter I  will try to defuse, if not settle, potential anxiety about this second problem—​the absence of a theory of exploitation—​by attempting to broaden the context of discussion in a way that also addresses the first puzzle. I suggest we turn our attention *  I would like to thank Virginia Mantouvalou, Hugh Collins, and Hillel Steiner for excellent comments on an earlier draft. I would also like to thank the audience at the Philosophical Foundations of Labour Law conference at UCL in 2016 for an extremely helpful discussion. 1  Throughout this chapter I draw on and extend two previous pieces of work; my 1985 University of London MPhil thesis, Jonathan Wolff, ‘Exploitation’ (MPhil, University of London 1985)  accessed 21 December 2017; and my Jonathan Wolff, ‘Marx and Exploitation’ (1999) 3 Journal of Ethics 105. 2  See eg GA Cohen, ‘The Labor Theory of Value and the Concept of Exploitation’ (1979) 8 Philosophy & Public Affairs 338; John Roemer, ‘Should Marxists Be Interested in Exploitation?’ (1985) 14 Philosophy & Public Affairs 30. 3 Arguably this problem sets the agenda for the collection Monique Deveaux and Vida Panitch (eds), Exploitation: From Practice to Theory (Rowman & Littlefield 2017). 4  An alternative approach tries to use some sort of competitive market price as a benchmark for exploitation. I will discuss this in more detail later in the chapter. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 10 © Jonathan Wolff 2018. Published 2018 by Oxford University Press.

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also to the structures that give rise to the particular exploitative relations, for the question of the justice of those structures will very often be a key, though rarely fully, determining factor in whether or not a particular relationship is exploitative. My argument is that while it is relatively straightforward to identify the elements that are relevant to a charge of exploitation, it is very unlikely that there will be any clear formula that can be applied in every case, or would be acceptable to people who make different moral assumptions about the same case. Hence it is no surprise that this is an area of conflicting intuition and reasonable disagreement.

2.  The Normativity of Exploitation Even if the ordinary language user does not have to hand a precise operational definition of exploitation, the general meaning of the concept is relatively unproblematic. The core ordinary language understanding of exploitation in its moralised sense is that of ‘taking advantage in a morally dubious way’. There is a non-​moralised use of the word too, which stops after ‘taking advantage’. I will leave that aside here, concentrating only on exploitation in a moral sense. And it is tempting to simplify the account so that it reads ‘taking unfair advantage’, rather than referring, vaguely, to the ‘morally dubious’. Though reasonable, nevertheless, as I shall explain, I think to relate exploitation only to unfairness could be misleading. The first puzzle—​that not being exploited is often worse than being exploited—​brings out the fact that exploitation is a heavily normative concept. To exploit someone is, in some sense, to make them worse off. But we have already seen enough to know that it is not to make them worse off than they would have been without the exploitative relationship. It must, therefore, appeal to some other normative baseline: worse off than they should be. But how well off should someone be? If we look at the neo-​Marxist account, it would be the case in which you were paid a wage high enough to command equivalent labour of others (with various controversial caveats about deductions for those unable to work and so on). That, we can say, is a fairness norm. And so it does look like, on this account, to be exploited is to be taken advantage of unfairly. Yet even in the Marxist tradition there are other ideas. In Marx’s first use of the term ‘exploitation’, using the French rather than finding a German equivalent, in The German Ideology, he seems to regard it as something the bourgeoisie do to each other: The verbal masquerade only has meaning when it is the unconscious or deliberate expression of an actual masquerade. In this case, the utility relation has quite a different meaning, namely, that I  derive benefit for myself by doing harm to someone else (exploitation de l’homme par l’homme).5

This seems to imply that there can be mutual exploitation. But then, one wonders, how can a trade be unfair to both parties? Perhaps we can devise exotic cases, but Marx, of course, is talking about the general case. It could be that exploitation is simply a matter of not caring whether the transaction is unfair, rather than it actually being unfair; a type of callous disregard for the interests of others. It is plausible to regard this as part of Marx’s thought. But at the same time I think that there is another tone to Marx’s discussion, concerning the ‘proper nature’ of human beings and human interaction. Capitalist profit-​seeking trading, Marx

5 Karl Marx and Friedrich Engels, The German Ideology:  Introduction to a Critique of Political Economy (Christopher John Arthur ed, Lawrence & Wishart 1970) 110 (emphasis in original).

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believes, demeans us. It is part of our nature to be able to meet the needs of others through a complex and elaborate division of labour. But in capitalistic trading I am treating my ability to meet other people’s needs as potentially generating profit for me, rather than creating a human bond between us. Thereby each one of us is ignoring or undermining his or her ‘species essence’, using our elaborate connections with other people as means to our profit. To ‘naturalise’ Marx’s thought once more, Marx has an idea of what it is for human beings and human society to flourish. If we engage in capitalist forms of trade we do not live according to our nature as human beings. We are, indeed, exploiting ourselves as much as those we trade with. While many will have a certain sympathy for this criticism of capitalism, it is not my purpose here to defend or discuss it. Rather, as should already be clear, I want to extract from it another idea about ordinary cases of the use of the term ‘exploitation’. We have already seen one way of exploiting someone: by getting them to work for you on unfair terms in the form of low wages that create illegitimate profit for the exploiter. But there is another way, in Marx’s view, and on the ordinary understanding. It is by undermining the conditions for their flourishing as a human being. To extend this idea, a wage may be perfectly adequate, but there may be something demeaning or damaging about the work performed, or the working relationship. Some forms of sex work, or demanding domestic service, could easily have this character. The wages paid may be generous, but we still might think that someone can be exploited. The famous French ‘Dwarf tossing’ case may be a good illustration; the wages were not at issue, but a conception of human dignity was.6 And this is why the understanding of exploitation as ‘taking unfair advantage’ could be misleading. Agreed, it could be said to be unfair to undermine someone’s human flourishing. However, the norm violated in such a case is better thought of as a ‘flourishing’, or perhaps a ‘dignity’ norm rather than a ‘fairness’ norm. The more general point is that exploitation can be related to a number of different forms of morally dubious treatment. It is worth noting that flourishing norms can also be expressed in terms of the level of payment. For example, the London Living Wage campaign focuses not on alleged excess profits of employers, but what it takes to live any sort of decent life in London. This is a minimal flourishing norm, rather than a fairness norm, but it is very easy to confuse the two, especially as both considerations can apply simultaneously, and in this case are stated in terms of money. The obvious question, though, is why people allow themselves to be treated in ways that violate fairness or flourishing norms? Unlike paradigm cases of slavery, exploitation relies on some degree of consent of both contracting parties, and so the question arises of why anyone should consent to exploitation. This was a question that Marx seemed to enjoy discussing. He tells the tale of an ‘unhappy Mr Peel’ who tried to set up an industrial manufacturing plant in the Swan River district in Australia, exporting the means of production and the necessary workers to staff his factory. But soon after arrival he was left without a servant to bring him water or to make his bed, as the workers realised that, like Mr Peel, they too had the opportunity to make use of unclaimed land for their own purposes, and so they all ran away. Marx points out that Mr Peel was unable to transfer English conditions of production to the Swan River district, and in particular the condition that the worker had no independent access to the means of production and subsistence.7 Hence, Marx says that

6  See UN Human Rights Committee, Manuel Wackenheim v France, Communication No 854/​1999 (26 July 2002), UN Doc CCPR/​C/​75/​D/​854/​1999. 7  Karl Marx, Capital I (Penguin 1976) 933.

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for capitalism to exist workers must be free ‘in a double sense’: free from feudal bonds, but also free from independent access to the means of production.8 Therefore, workers only agree to exploitative conditions, on Marx’s view, because they have no other option. In other words, the workers are in a seriously vulnerable position and the capitalist is able to take advantage of the worker’s vulnerability in order to get the worker to agree to a low wage. This helps us to understand that paradigm cases of exploitation have a double aspect: a background vulnerability, as well as exploitative terms. The distinction between exploiting a person’s circumstances and exploiting the person is now well understood.9 The two typically go together, in paradigm cases. The exploiter uses the vulnerable conditions of the exploited party in order to get them agree to an arrangement that benefits the exploiter while violating a fairness, flourishing, or another moral norm. Typically, then, in a case of exploitation the exploiter exploits a person’s vulnerable circumstances to impose an exploitative arrangement on them (one that violates a fairness, flourishing, or another norm). However, there are also non-​standard cases. For example, it is possible to exploit a person’s vulnerability for the person’s own good. Some cases of paternalism are like this, including literal paternalism involved in parent/​child relationships. Now, it may reasonably be asked whether there must always be some sort of vulnerability if exploitation is to take place. Consider, for example, the type of exploitation that can take place in personal relationships, in which a rich, lonely person is exploited by a calculating, often younger, partner. Of course, there is a sense in which it is trivially true that, if exploitation is to take place, the exploited person must have been vulnerable in some sense. But often the vulnerability is subjective or personal. Gullibility, infatuation, ignorance, or, as mentioned, loneliness can make someone more trusting than they ought to be, for example. Such personal cases, though, need to be contrasted with objective cases in which there is something in the structure of the situation—​probably in common with many other people in very similar circumstances—​that renders the person vulnerable. For Marx, the proletariat are in this position. Today undocumented migrants clearly are. From the point of view of political philosophy and social policy, our interest should be cases where there is a structural vulnerability.10 Interpersonal morality is also important, of course, but it is a different topic. However, this difference between personal and structural vulnerability may have consequences for law and legal theory. On the face of it contract, tort, family, or probate law may be able to deal with the consequences of some cases of exploitation arising from subjective vulnerability, as, for example, in the case of the striking out of a will that has been induced through exploitation. Objective exploitation would need to be dealt with in other ways, perhaps through labour and human rights law,11 in which, typically, similar considerations apply to groups of people. In cases of objective exploitation there need be no mistake, no duress, no absence of consent, and no undue influence, and hence nothing on which law regulating interpersonal relationships can get a clear purchase. To recap, we now have a very general understanding of the nature of exploitation. It is to take advantage of another’s vulnerability to obtain benefits for oneself, by inducing the 8  ibid 272. 9  See Wolff, ‘Exploitation’ (n 1); Wolff, ‘Marx and Exploitation’ (n 1) for discussion, as well as Robert Goodin, ‘Exploiting a Situation and Exploiting a Person’ in Andrew Reeve (ed), Modern Theories of Exploitation (Sage 1987)  166–​7. 10  See Virginia Mantouvalou, ‘Legal Construction of Structures of Exploitation’ in this volume for an excellent account of the ways in which structural vulnerability can be created, including as an unintended consequence of the legal system. For an application of the idea of structural vulnerability to international contexts, see Maeve McKeown ‘Sweatshop Labour as Global Structural Exploitation’ in Monique Deveaux and Vida Panitch (eds), Exploitation: From Practice to Theory (Rowman & Littlefield International 2017). 11  See Mantouvalou (n 10).

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exploited party to agree to morally dubious arrangements, which will generally be either unfair terms, or conditions that are in some sense contrary to human flourishing. I do not propose this as a set of necessary and sufficient conditions as I expect counter-​examples can be found. But it does capture many of the most important cases. However, it does not yet answer our question: how do we tell the difference between an exploitative and a non-​ exploitative arrangement?

3.  Exploiting a Person There are at least two gaps, or perhaps variables, in the account provided so far. First, what is to count as vulnerable circumstances and, secondly, what is to count as an exploitative relationship or contract? Let us start with the second, that of exploiting a person, where much of the analytical work on the topic has been focused. It is tempting to approach this question by offering a theory of justice of some sort to generate a norm against which exploitation can be measured. There are, however, two types of problems with this. First, it is very hard to find a compelling norm, such as, in the case of the employment relation, a ‘just price’ for labour. Secondly, our intuitive judgements of exploitation do not seem to depend on any explicit norm. I will illustrate the first problem by considering two leading theories, the neo-​Marxist, and the competitive equilibrium approach. I will then turn to the point about intuitive judgements, and explore its consequences. We start, then, with the neo-​Marxist theory. The natural development for those influenced by Marx is to assume that the only way in which exploitation is to be overcome is if each worker can command with their wages as much labour as they had to expend to achieve those wages. This would be equivalent to the ‘lower’ form of socialism put forward in Marx’s Critique of the Gotha Programme, also known as a ‘labour-​money’ scheme, in which each worker is given a certificate recording each hour worked.12 These certificates can then be redeemed for goods. This amounts to having a common rate of pay per hour throughout the economy. There are, though, several obvious difficulties. First, as Marx himself pointed out, there always needs to be a deduction from the total product for those who cannot work, for investment, and for insurance, among other things. Workers will always ‘lose labour’ if non-​workers need to be supported. Is this, in itself, exploitation? Secondly, it assumes that all labour is of the same value, however demanding. Thirdly, it entails that there is no such thing as legitimate return to capital, which is, of course, part of the Marxist position, but in the contemporary world is a highly controversial assumption and will not be generally accepted. Finally, and most importantly for current purposes, as pointed out by John Roemer, it probably has the consequence that no one working in a wealthy country today, even the worst paid, is exploited.13 To illustrate, a pair of trousers can be bought at Primark for £8. The minimum wage for a worker aged 25 or over is £7.20. It is very likely that there is more than an hour’s labour embodied in a pair of trousers, at least by the time it arrives on Primark’s shelves, although given the number of processes involved it is very hard to calculate. Nevertheless, even the lowest paid workers in the UK are likely to be able to command more labour than they expend, when the global labour market is taken into account, bearing in mind the low wages of those in the developing world. Hence, on this

12  Karl Marx, ‘Critique of the Gotha Programme’ in The Marx–​Engels Reader (Robert Tucker ed, 2nd edn, WW Norton 1978). 13  John Roemer, ‘Property Relations vs. Surplus Value in Marxian Exploitation’ (1982) 11 Philosophy & Public Affairs 281.

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definition of exploitation virtually no one in the UK is exploited. Some will accept this consequence, but not all, I presume. An alternative method of approaching the benchmark norm of exploitation starts from the idea that in a perfect market, with no entry barriers, there is no exploitation, for any unfair profits will be eroded away by competitors attempting to capture them.14 Hence, exploitation can only exist if there is interference of some sort with free competition. For this reason, Hillel Steiner, for example, insists that exploitation is not a one-​shot two-​party relation, as normally thought, but a two-​stage sequence involving a prior rights violation that pre-​empts the two parties from contracting on competitive terms. The right-​wing version of this position argues that trade unions, or government regulation, interferes with the free market to keep wages artificially high and therefore allow workers to exploit capitalists. One left-​wing argument is that employers form an unofficial cartel to keep wages down. But again there are some difficulties. First of all, the right-​wing version assumes that the starting point in which some hold large amounts of capital and others hold nothing is morally acceptable and outside the discussion. Secondly, arguably, it conflates the perfect market of the economic textbook with the unregulated market of capitalism, which has an inbuilt tendency towards monopoly and imperfect competition, creating entry barriers through economies of scale. Hence, vulnerability can be created through the natural workings of the real market, as well as by interference with the market. As the US and EU have repeatedly found, regulation is necessary to bring us closer to competitive markets. Thirdly, notoriously, the free market is unable to distinguish between effort and pure luck. Finally, the counterfactual is often impossible to determine. Many transactions only take place because we are not in a perfect market, for many firms would go out of business if they were not protected in some way. Thus, the idea of the free market wage for those companies has no grip. Even where the firm could continue to exist there may be many different possible free market prices (multiple equilibria) rather than one. But determining these in practice is likely to be an impossible task, even before we work out which one to choose. The fact that the two leading theories do not solve the problem of how to define exploitation does not, in itself, show that there is no possible theory that would do a better job. And indeed detailed and sophisticated versions of these theories are advanced in the literature. But on the surface it seems unlikely that there will be a theory that satisfies everyone. A problem that underlies many of the difficulties is that there often appears to be disagreement about what is to count as exploitation. Take the Dwarf-​tossing example. Many regard it as exploitation, while others view it as simply a novel employment market which gives those who may find it difficult to obtain other employment a chance of a decent wage. A more important case of public policy where there can be disagreement concerns low wages. Consider someone on the minimum wage, but below the local living wage. Is that exploitative or not? And does the question depend on the degree of profit that is being made? Take the example of a small company currently making a loss and depending on expensive borrowing to survive. It pays its staff the minimum wage, but tries to employ young staff to whom lower minimums apply. The working conditions are very poor, relative to the rest of the sector, just meeting minimal legal standards. Or imagine that the employer is a loss-​making charity. Are their workers exploited? On one view, if no profit is being made they cannot be exploited, as no one is benefiting. On another, it does not matter whether 14  For a sophisticated version of such a ‘left-​libertarian’ approach to exploitation, which avoids some of the objections that follow, see Hillel Steiner, ‘A Liberal Theory of Exploitation’ (1984) 94(2) Ethics 225; Hillel Steiner, ‘Free Markets and Exploitation’ in Jason Brennan, Bas van der Vossen, and David Schmidtz (eds), The Routledge Handbook of Libertarianism (Routledge 2018).

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anyone is actually benefiting, as the issue turns on whether there is an intention to benefit, which presumably there is in the commercial company, if not the charity. On yet another, it is not important whether there is any intention to benefit, for what matters is that the workers have been subjected to degrading working conditions and pay that is not sufficient to meet reasonable needs, and hence flourishing norms (better thought of as ‘decency norms’ perhaps) have been violated. It seems very hard to say that one of these accounts is right and the others wrong. Rather, it is likely that we should just accept that there is reasonable disagreement. Note, though, that it is unlikely that each person in this disagreement is arguing from a clear theory. For consider the case where you, yourself, personally make a clear judgement that a situation is exploitative, whether or not others disagree with you. Is it likely to be the case that in making a judgement that a situation is exploitative you have a determinate theory of exploitation in your head, waiting for articulation? In other work I have suggested that we find it much easier to identify injustices and unacceptable inequalities than we do to set out determinate and compelling theories of justice and equality.15 This seems to be the case for exploitation too. Generally, we are much more comfortable designating a situation as exploitative than we are setting out clear terms for what would be necessary and sufficient to end that exploitation, in the sense of stating a cut-​off for non-​exploitation. There is much to be said about this general phenomenon, but in the current context I want to suspend the question of how to move on until we have explored the background question concerning the existence of a structural vulnerability.

4.  Exploiting a Vulnerability Although the dominant focus in analytic discussions of exploitation has been to try to set out the conditions under which it is possible to determine whether a given individual has been exploited, within the Marxist and radical traditions the much more pressing issue is whether a significant group of people find themselves placed at a common structural disadvantage that renders them all exploitable. For Marx, of course, this was the position of the subservient class in class-​divided society, whereas for feminists it is women, for race theorists those of a minority race, and so on.16 Hence, in such writings we see exploitation related to ideas of systematic power, and to the presence of domination and privilege, rather than the opportunistic use of individualistic unfortunate circumstances.17 And as we saw, for Marx the proletariat could be exploited because they are excluded from independent access to the means of subsistence. To extend the picture to other domains, women can be exploited both in the home and in the workplace because, for much of history, they have been excluded from positions of power, and attractive employment, or even basic rights enjoyed by men.18 And people of minority races can be exploited because formal and informal structures have evolved in ways that lock minorities into positions of little power, wealth, and influence, and so if they are to work at all they have to take jobs that others find unappealing, or even unacceptable. Indeed, taking slavery as his paradigm of racial exploitation, Charles Mills claims

15 Jonathan Wolff, ‘Social Equality and Social Inequality’ in Carina Fourie, Fabian Schuppert, and Ivo Wallimann-​Helmer (eds), Social Equality: Essays on What It Means to be Equals (OUP 2014). 16  Although as Hillel Steiner has pointed out to me, for racists, and especially anti-​Semites, it is often the minority race that is claimed to be the exploiter. 17  eg Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990) 48–​53. 18  See McKeown (n 10) for a discussion of the gendered nature of sweatshop exploitation.

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The paradigm case of racial exploitation is one in which the moral/​ontological/​civic status of the subordinate race makes possible the transaction in the first place (that is the transaction would have been morally or legally prohibited had [the exploited parties] been [members of the dominant race]) or makes the terms significantly worse than they would have been.19

However, Mills accepts that over time a secondary form has evolved in the US in which the vulnerability of the disadvantaged race is a matter of a weaker bargaining position, as a legacy of historically earlier rights denials. Suppose it is true that social structures operate to privilege some and exclude others. Those who are excluded thereby lack opportunity and with it bargaining power, and find themselves with no alternative but to agree to terms and conditions of work that breach fairness or flourishing norms. If this is a reasonable account of some aspects of our economies then there are structures that disempower groups of people, rendering them vulnerable. In cases of systematic exploitation, the exploiting party will make use of those structures, turning them to their advantage. I want to give some thought now to the structures that lead to exploitation. We have seen that in standard cases these structures are exploited by those in more privileged positions to engage in mass exploitation of individuals. But that raises the question of how the structures came to exist and how they are sustained and reinforced. On the classic Marxist picture, structures began by violent acts of appropriation and usurpation, and they have been maintained by a combination of force and self-​sustaining mechanisms, including an adverse legal system that cemented, for example, the property rights of enclosure. The structures are self-​sustaining in the sense that some actions are strongly encouraged by the structure, such as market pressures forcing employers to offer low-​paid work, and forcing workers to accept whatever is on offer in order to survive. These actions tend to reinforce the structure by consolidating power relations. Those who try to rebel against the structure, such as capitalists who try to employ their workers on decent wages, will not survive against the price competition of those who ruthlessly exploit their workers. Similar considerations apply to workers who refuse to accept low wages: they will starve. However, even on the Marxist view the structures are not entirely self-​reinforcing at the economic level. The power of the state is needed to frustrate the attempts of the workers to change structural relations. On this classic Marxist picture, the exploited worker has no acceptable choice but to work for terms barely adequate to keep him or her, and his or her family, alive to be exploited the next day, in conditions which crush the spirit and break the body. In these circumstances, in which unemployment is even worse than employment, there is some sense in which the worker will very willingly go to work. But this is against a background in which other factors conspire to make that the case. It is worth comparing the worker in Marx’s analysis with a milk cow on a modern farm. Cows willingly go to be milked, as the discomfort of not being milked is intolerable. In that sense, they freely agree to be milked. Yet that is only the most immediate aspect of a much deeper structural arrangement in which cows have been bred to be milked, and indeed bred to need to be milked. And it is not a simple matter of good fortune that farmers can find cows with such capacities and desires. Rather, thousands of years of refinement of farming techniques have led to a structure in which the domination of the cow is maintained by farmers in order to profit from the milk that the cows apparently willingly hand over without the use of significant force by the farmers. If we accept this analogy at least as the basis of a Marxist account of capitalism, several questions arise. First, how did the complex power structures of contemporary societies 19  Charles W Mills, Black Rights/​White Wrongs (OUP 2017) 123.

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come into being? Secondly, what are the mechanisms by which they are sustained? And, thirdly, how are they used so that some can profit from the efforts of others? In Capital I Marx contemplates the possibility that the capitalism of his day had an entirely virtuous birth. Those with wealth and power today, on this story, are simply descendants of those who, many generations ago, put in exceptional efforts to build up their possessions, while others around them idled away their time accumulating nothing. And the descendants of those slackers are condemned to toil today.20 Marx, of course, regards this as laughable nonsense, and so does not consider the theoretical question of whether we should have the same attitude to capitalist exploitation if it really were the case that capitalist power structures had ‘morally clean’ origins. But there we see an opening for those who might broadly agree on an account of exploitation, but disagree as to whether capitalism is exploitative. Just as an observer might think that the relation between the farmer and the cow is one of mutual need and advantage, if they knew nothing of the nature and history of farming, it is possible to think that the relation between worker and capitalist is also one of mutual need and advantage. But it would be hard to combine that view with a Marxist account of the origins of capitalism and the manner in which it is maintained. The questions of how, in fact, the social and economic structures of contemporary societies came into being and are sustained are far outside the scope of this chapter. But compare those who regard them as having emerged from ‘conquest, enslavement, robbery, murder, in short, force’21 as Marx did, and being sustained by naked use of state power and ideology, on top of any self-​sustaining mechanisms, with those who take a much more benign view: that either capitalist structures came about either completely by accident, or even are the result of the morally exemplary behaviour of those who ended up in fortunate positions. Having these different views of the background structures is very likely to lead to very different views of the nature of the contractual arrangements that emerge from them. On Marx’s view of the origins of capitalism, even if the availability of exploitable workers is, as Marx says, ‘a piece of good fortune’ for the capitalist, it is hard to agree with his further comment that it is ‘by no means an injustice’ to the worker.22 But the salient location of the injustice is not, or not only, the exploitative contractual terms, but also the background structures that allow those terms to emerge. Hence, it is something of a distraction to agonise over the precise details of a theory of exploitative contracts when the real disagreement is likely to be not the precise wording of a transactional fairness norm, but whether the background conditions are seriously unfair or not.

5.  Confronting Exploitation The discussion to this point implies two different approaches to the question of how to address and end exploitation. If exploitation consists in an unfair, or otherwise morally dubious, relation between two parties then one proposal is to regulate the terms: minimum wage, health and safety legislation, and so on. This focuses on the immediate relation of exploitation and attempts to ensure that the working relationship is improved, which would certainly be welcomed by the workers. A much more radical approach starts from the fact that exploitation is close to an inevitable consequences of certain structural factors, and therefore the deeper solution to exploitation is to make structural changes so that systematic exploitation cannot happen. What does this mean in practice? It could be a matter of legal change, but not direct legal regulation of the potentially exploitative regulation. For 20  Marx (n 7) 873–​4.

21  ibid 874.

22  ibid 301.

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example, one way of addressing the exploitation of women in the home and in low-​paid employment has been to improve female education and to open up all professions to women. Once the background structure is changed, the very significant inequalities in bargaining power that lead to exploitation are mitigated. This last point is worth dwelling on. Exploitation, in this systematic sense, arises as a result of the unequal bargaining positions of the parties to the contract. It would seem to follow that we can end exploitation if we equalise the bargaining strength of the parties to the contract. All well and good, and this is probably the motivation behind the ‘perfect market’ model of exploitation, for in a perfect market no one has any bargaining strength. Nevertheless, outside the fiction of a perfect market I’m not sure how much sense we can give to the idea of ‘equal bargaining strength’, at least defined independently of actual outcomes of bargaining. This is a challenge even in very abstract, formal models, but in the real world in which, for example, a multinational company faces a solid, national trade union, what would we mean by ‘equal bargaining strength’? Once again we can intuitively pick out large discrepancies in bargaining power, but it is rather a different matter to give an account of bargaining strength that would license the fine judgement in standard cases that one person or organisation is in a somewhat better bargaining position than another. Still, reduction of significant bargaining differentials, which are relatively easy to spot, would have a natural effect on exploitation. This is what we saw in the example of opening the labour market to reduce female exploitation in the home. The idea, then, is that problematic labour relations can be changed by changing the background circumstances that give rise to those relations. There are, however, at least two problems that this proposal has to deal with. The first is the obvious one that structures can be very hard to change. Typically they have arisen by a form of unintended consequence and are in part self-​reinforcing because they incentivise behaviour that cements the structure. Change will be difficult, and is likely to be slow, and if we put all of our efforts into structural change then we might find ourselves in effect tolerating exploitation while waiting for structural change that can be a long time coming. There is, therefore, reason for pursuing regulatory reform, even, if, as Marx put it, it would lead only to ‘better payment for the slave’.23 The second challenge is normative. I have suggested that there is a natural flow through from background structures to employment terms and conditions, and therefore what are often regarded as exploitative contracts are the near-​inevitable consequence of background conditions. Yet as we saw in the discussion of whether capitalism could have emerged in a morally clean form, similar structures can have different origins, or there can be different opinions on the morality of their origin. Suppose that the wealth of capitalists is the result not, ultimately, of theft and force, but exceptional thrift, sacrifice, and hard work.24 Would this not have consequences for whether the resulting labour relations are exploitative? It could be that the differentials that lead to a superior bargaining are morally permissible. Would it then also be the case that the superior bargaining position is morally permissible? And if that were the case, does it follow that anything that is agreed under these circumstances is morally permissible too? Here, then, we have the moral argument for the defence of low wages under capitalism, in the following steps.

23  Karl Marx, ‘Economic and Philosophical Manuscripts’ in Tucker (n 12) 80. 24  There are, of course, two possibilities here. One is where the thrift etc took place particularly in the first generation, who handed on their wealth to subsequent generations. The other is where each person starts from equality and differential wealth only appears during the course of a lifetime. The two possibilities will have very different consequences for what is later considered exploitation, but both are distinct from the expropriation story. I owe this observation to Hillel Steiner.

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(1) Wealth disparities as they exist under capitalism have a morally clean origin. (2) Therefore, the bargaining superiority of the capitalism is morally acceptable. (3) Therefore, the use of the bargaining superiority is morally acceptable. (4) Therefore, the consequent low wages for workers are morally acceptable (and not exploitative). As we noted, Marx denied the first premise—​‘such insipid childishness is every day preached to us in defence of property’25—​and so did not need to engage with the rest of the argument. It is interesting though, that the argument seems to tail off in plausibility. Even if it is true that the capitalist has a moral right to wealth, the subsequent propositions do not obviously follow. For the same considerations that give rise to the initial claims of ownership—​hard work and sacrifice—​seem to generate claims for the worker further down the chain (this is the ‘Lockean socialist’ argument for the workers’ right to the product, which has been argued to have influenced Marx).26 These ultimately seem to be questions of desert; the desert claims of those who have worked hard to acquire assets, and the desert claims of those who find that assets in other people’s hands are being used against them. In saying this, we come to appreciate that lying just below the surface of the concept of (economic) exploitation is the concept of desert.27 In one way this seems a positive step, as it should be possible to appeal to what we know about desert to help elucidate the concept of exploitation. In another way this is less helpful than it may seem as the concept of desert is itself notoriously difficult to pin down. Still, this does help us to unify the two traditions of thinking about exploitation that I have discussed: the Marxist and the perfect market. Both, we can speculate, are based on fairly crude theories of desert: the Marxist that labour time is the measure of desert and the perfect market theory that the market rewards people in accordance with their desert. Both of these, in their different ways, define exploitation in terms of the deviation of results from desert. Those who disagree with the two accounts in effect substitute their own theory of desert, and it must be said that neither of the two theories is especially plausible. The replacement theory of desert, however, is very unlikely to be precise, though will be able to pick out gross violations of desert. For a further complexity of the account is that it is likely to be a hybrid theory, looking backward to what has been done (fairness—​deserving of reward for labour) and forward to what is needed to live an acceptable life (in the sense of ‘everyone deserves to live in decent accommodation’). Which really puts us back to where we started in understanding that exploitation involves the violation of fairness or flourishing norms.

6.  Return to the Two Puzzles The two puzzles I  started with were, first, the problem that ending exploitation is often worse for the exploited party than continuing it, and, second, that outside the Marxist tradition, or perhaps the perfect market tradition, we do not have a clear theory of what is to count as exploitation. I want to indicate my responses to these puzzles together, starting with the question of how to identify cases of exploitation given the lack of an agreed technical moral definition. It will be clear that I do not think much is to be gained by trying

25  Marx (n 7) 873–​4. 26  See Anton Menger, The Right to the Whole Produce of Labour (Macmillan 1899). 27  See Guy Davidov, ‘Distributive Justice and Labour Law’ in this volume.

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to refine a theory of exploitation through standard analytic means of theory and claimed counter-​example. Rather, I think we need to follow something like the following procedure. In the first instance, we will be alerted to an example in which it appears that something has gone wrong in a relationship between two parties, or between one party and a group who are affected in the same way. Typically, there will be an apparent unfairness in wages or another contractual element, or the relationship will be in some way degrading. Although mutual exploitation is possible, most likely the alarm will be set off by the apparent one-​ sidedness of the relation. We will typically be prepared to entertain the judgement that it is exploitative, violating acceptable norms of some sort. We then need to explore why it is that the relationship exists in this form. The putatively exploited party must in some sense be vulnerable to such treatment. The question is whether the source of the vulnerability is subjective (for example, infatuation) or objective (structural factors). If the former then it is likely that we are dealing with a case of interpersonal morality, which can be very fateful for individual lives but outside the scope of political philosophy, or at least of social policy. If, however, structural factors generate the vulnerability that led to the problematic contractual relationship, then we need to move to the assessment of the justice of those structures, and the power that they distribute. In the literature on structural injustice the object of discussion is typically a set of structural factors that exist for no normatively good reason. Yet we cannot dismiss the idea that some structures, such as those of the power of the state, or even the institutions of private property or the family, exist for good reason. And if that is so, some who hold power within those structures may occupy those roles on morally acceptable grounds. For example, most people will accept that, in principle, private property is acceptable, and that some people have built up significant private holdings in morally acceptable ways. As we have seen, however, it is nevertheless one thing to argue that a structure is legitimate, but quite another to accept that everything that naturally follows from it is equally legitimate. Here we can develop the argument further by drawing on suggestions from Jeremy Waldron28 and Hillel Steiner29 that having a moral right to do something does not entail that it is morally right, or even acceptable, to act in the way to which you have a right. That is, even if one has built up a position of power in ways that are normatively acceptable, it does not follow that every use of the power is also morally acceptable. For example, even if property-​owning inequalities under capitalism are the result of the current generation’s Dworkinian luck-​egalitarian differential choice from an initial position of absolute equality,30 it would not follow that those who now possess property can use it to extract hard deals on any mutually agreed terms, free from moral criticism. As suggested earlier, it is hard to see how desert can stop at initial acquisition. Yet at the same time, it would not seem reasonable to expect exactly the same terms of employment irrespective of the moral quality of the structure giving rise to vulnerability. That is, the more morally acceptable the origin of the structures creating the vulnerability, the less ground there is likely to be for the claim that an ensuing employment relation is exploitative. But there is no limit case. However ‘clean’ the origin of the structural inequality, the possibility of exploitation still exists. And it will be a matter of weighing different claims: for example, the desert of those who put in the effort to create and maintain the achievements that led to the power differential and the desert of those operating within the constrained situation that they face. It will be a struggle to do more than let this rest on comparative intuitive judgement. Hence, 28  Jeremy Waldron, ‘Rights in Conflict’ (1989) 99 Ethics 503. 29  Hillel Steiner, An Essay on Rights (Blackwell 1994) 208. 30  Ronald Dworkin, ‘What is Equality? Part 2: Equality of Resources’ (1981) 10 Philosophy & Public Affairs 283.

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we can draw two conclusions. There is no prospect of arriving at a satisfactory theory of exploitation that concentrates only on the immediate relations between the parties without taking into account background structure, as the same relations can be exploitative if they arise in a normatively unacceptable structure, but not exploitative if they arise in an identical structure which is normally acceptable. Secondly, although a comprehensive account of exploitation will need to take into account background structure as well as immediate relations, it seems very unlikely that it will be possible to arrive at a determinate technical definition of exploitation given the diversity of possible structures and the diversity of possible normative grounds for them. Understanding this broader context allows us to return to the first puzzle, that ending exploitation is often not in the interests of the exploited party. This can now be seen as an apparently superficial point, as may have been obvious from the start. Instead of ending the contractual relationship, two other possibilities are available. One, most obviously, is to regulate the relationship through such things as a minimum wage. The other, and more ambitious, is to change the background structure so that the natural outcome of the balance of power is an outcome more favourable to the exploited party. But nevertheless there is, of course, a concern that these alternatives could return us to the situation in which the previous exploiter will no longer continue the relationship (hence Milton Friedman’s comment that ‘it has always been a mystery to me to understand why a youngster is better off unemployed at $1.60 an hour than employed at $1.25’31). It is an empirical question whether this will be the situation in any particular case but it will be a danger.

7. Concluding Thoughts My aim in this chapter has been to try to draw out the underlying structure of the nature of exploitation, and to explain why it is that even though we often have very firm intuitions that a situation is exploitative, it turns out to be very hard to supply a definitive account of exploitation that can firmly distinguish cases of exploitation from non-​exploitation. The explanation begins from the fact that exploitation is a compound relationship in which an individual’s vulnerable circumstances are used by another individual in order to achieve a benefit for the exploiter in violation of fairness or flourishing norms. The salient point is that there are two normative variables: the moral acceptability of the nature of the contractual arrangement and the moral acceptability of the process that led to the structural situation that created the exploited vulnerability. When the background process is clearly unacceptable, the charge of exploitation will be relatively easy to sustain, but even when it is fully acceptable, exploitation is still possible. In such a case, it will be a matter of judging norms against each other, most likely norms of desert. Although often there will be clear cases, the prospects of arriving at a formula to settle issues in a determinate way appear remote.

31  Milton Friedman, ‘Minimum-​Wage Rates’, Newsweek (26 September 1966).

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11 Legal Construction of Structures of Exploitation Virginia Mantouvalou*

The concept of exploitation has been underexplored in labour law scholarship but is being used increasingly in recent law and policy documents. Labour law literature typically focuses on the inequality of bargaining power between the employer and the worker as a justification of the discipline.1 The idea of exploitation, though, is beginning to dominate political discourse. Theresa May, as UK Home Secretary, stated:  ‘It is only by working together, taking responsibility and fighting criminality that we can stop the misery of exploitation and enable everyone in society to work without fear.’2 Human rights law, particularly in the areas of slavery and servitude, and the law on human trafficking also make references to exploitation. Typically when used in law and policy, exploitation describes some grave moral wrong. My aim in this chapter is to examine the concept of exploitation afresh and assess whether a different account of it is possible than the one emerging from recent law and policy documents. The reason that motivates revisiting exploitation is multifold. First, the concept of labour exploitation seems to be driving an agenda in labour regulation today, which focuses on extreme forms of abuse, while remaining silent on, or even reproducing, conditions that lead to more subtle forms of injustice at work. Instances of labour exploitation, such as slavery and forced labour, must no doubt be tackled. However, there are other forms of exploitation that must be addressed. Instead, the current trend that focuses primarily on the most extreme forms may appear to legitimise unfair treatment at work, which should also be viewed as exploitative, and obscure the moral wrong of exploitation. The second reason that motivates revisiting exploitation is that the concept is today linked to criminal conduct in most instances in international and national law. The exploiter commits a grave moral wrong, and our legal systems need the machinery of criminal law to tackle it. In response, because of the gravity of the wrong, the European Court of Human Rights (ECtHR) has imposed on state authorities primarily a duty to criminalise the employers’ conduct. The law on human trafficking and the UK Modern Slavery Act 2015 also focus on criminalisation. At the same time, labour legislation leaves many workers unprotected even though the rhetoric of exploitation is regularly deployed. In this way, the concept of exploitation risks becoming a powerful rhetorical device but with limited normative scope. Thirdly, the current approach to exploitation in law mainly identifies individual wrongdoers, and often misses the role of institutions that create structural injustice. The idea regularly promulgated is *  I  am grateful to Lizzie Barmes, Alan Bogg, Hugh Collins, Jeff King, Gillian Lester, George Letsas, Gillian Morris, and Jo Wolff for suggestions and comments on a draft. I  also greatly benefited from comments at the Philosophical Foundations of Labour Law conference at UCL, the 2016 UK IVR conference at the University of Leeds, and the 2016 SLS conference at the University of Oxford. 1  Paul Davies and Mark Freedland (eds), Kahn-​Freund’s Labour and the Law (3rd edn, Stevens 1983) 18. 2  Home Office, ‘Tackling Exploitation in the Labour Market’ (January 2016)  accessed 20 September 2018. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 11 © Virginia Mantouvalou 2018. Published 2018 by Oxford University Press.

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that there are evil traffickers, for instance, on the one hand, and that the state seeks to protect the victims of these traffickers, on the other. However, the state itself may have a role in establishing conditions for exploitation, as my chapter explains. Finally, there is an issue of conceptual clarity. It is important to have an understanding of what is labour exploitation in order to find what is the best way to address it in law and policy. In this chapter, I argue that the prevailing understanding of workers’ exploitation in law and policy is unjustifiably narrow, and that criminal law alone does not meet the challenge of addressing it. The concept of exploitation should not be confined to slavery, servitude, and forced and compulsory labour. Exploitation is about taking unfair advantage of someone or taking unfair advantage of someone’s vulnerability and the resulting bargaining weakness. Employers can always exploit the vulnerability of the worker, which may stem from either personal or structural reasons. Yet I also argue that the state, through its laws, sometimes creates structures that facilitate exploitation by private or state agents. It is then not only the private employers who have to be held accountable for exploitation, but also state authorities themselves. Section 1 of the chapter explores the current usage of the concept of exploitation in law. In several cases and treaties, exploitation refers to the most obvious and extreme violations of labour rights that are akin to slavery. By describing these as exploitative, the ECtHR opens the door for certain labour rights to be classified as human rights, and protected through a liberal human rights document. Similarly, international and European law on human trafficking connects the concept of exploitation with very serious abuse. These may be welcome developments to the extent that they raise awareness and may help start addressing serious violations of workers’ rights to a certain degree. But the concept of exploitation needs to be further explored if we are to address the moral wrong through law. In order to advance a different conception of exploitation, Section 2 of the chapter examines the concept in political philosophy literature, which attempts to capture what is exploitation and why it is a moral wrong.3 It rests on a definition of exploitation as taking unfair advantage of someone or someone’s vulnerability and the resulting bargaining weakness, and explains that we find opportunistic and structural accounts of exploitation in the literature. On opportunistic accounts, exploitation occurs when an employer takes unfair advantage of a worker, with a focus on individual circumstances in a specific transaction, rather than background conditions of injustice. Certain other accounts, which this section presents, define exploitation as taking unfair advantage of someone’s vulnerability. Depending on the source of the vulnerability, these analyses examine either personal characteristics of a worker or background conditions of injustice. The chapter then turns to structural accounts.4 It first examines the Marxian theory of exploitation, which is a natural but very different starting point than the one discussed in Section 1. For Marx, all workers are exploited in a capitalist system. I suggest that an important insight from Marx is that we should primarily be concerned with background injustice in the structure of society, rather

3  Literature on the topic of exploitation includes: Andrew Reeve (ed), Modern Theories of Exploitation (Sage 1987); Robert Goodin, Reasons for Welfare (Princeton University Press 1988); Alan Wertheimer, Exploitation (Princeton University Press 1999); Ruth Sample, Exploitation:  What It Is and Why It’s Wrong (Rowman & Littlefield 2003). 4  On exploitation and structural injustice, see eg Jonathan Wolff, ‘Structures of Exploitation’ in this volume; Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990); Jeremy Snyder, ‘Exploitation and Sweatshop Labour’ (2010) 20 Business Ethics Quarterly 187; Monique Deveaux and Vida Panitch, ‘Introduction’ in Deveaux and Panitch (eds), Exploitation: From Practice to Theory (Rowman & Littlefield 2017) 1; Matt Zwolinski, ‘Structural Exploitation’ (2012) 29 Social Philosophy and Policy 154.

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than just individual transactions. Even if we do not agree with Marx that all employment relations are exploitative in a free market, we should keep at least this feature of his theory. Against this background, in Section 3 I examine background conditions of injustice that create vulnerability of workers, placing special attention on special structural vulnerability that is created not by the free market, but by the legal system itself. The law constitutes our system of private property, of course, as well as the rules of the labour market, and we need a social justice-​based critique of property in order to assess its fairness. If the rules of private property are unfair, then it can be said that workers are placed in a position of vulnerability to exploitation. However, here I consider a special structural vulnerability in which the law places an increasing number of workers, and of which both the state and private employers take advantage. This is created, perhaps as an unintended consequence of laws with a prima facie legitimate aim, when the state explicitly excludes workers from protective rules or when it creates a legal framework that leads to this situation, and the state knows or ought to have known of the vulnerability and the exploitation, or the immediate risk of exploitation. That the law, even if unintendedly, creates structures that place groups of workers in a special position of vulnerability which state or non-​state agents systematically exploit is troubling, and not often acknowledged as a source of vulnerability to exploitation. The chapter then discusses four groups of workers who are in a position of special structural vulnerability created by the law and who are systematically subject to exploitation: migrant workers, domestic workers, prison workers, and care workers in zero-​hours contracts. The law creates conditions for the exploitation of these workers, and either state or private agents exploit them by violating their labour and other human rights. Focusing in this way on laws that systematically exclude helps us identify particular oppressed groups of workers, and some of the structures that place them in this position.5 Human rights law, with its focus on state conduct, can expose some forms of exploitation, even though it must be acknowledged that structural oppression of groups of workers is created and reproduced not only in law, but also in other political and economic institutions.6 As soon as this state conduct is exposed, labour law must start to address the problem by incorporating rules that remove workers’ structural vulnerability, and protect them from oppressive subordination. Legal reform to remove this structural vulnerability is a matter of urgency, for the employment relation is already one of inequality and subordination.

1.  Exploitation as Slavery, Servitude, and Forced and Compulsory Labour Human rights law does not contain a right not to be exploited as such. Nevertheless, the concept of exploitation has figured in the case law of courts and has been linked to slavery and human trafficking. The European Convention on Human Rights (ECHR) does not protect labour rights, such as the right to a minimum wage or to fair and just conditions at work, which are protected in the counterpart of the Convention in the area of social rights, the European Social Charter. The Convention only includes the right to form and join trade unions7 and the prohibition of slavery, servitude, and forced and compulsory labour.8 It binds the forty-​seven member states of the Council of Europe, and individuals from these 5  On oppression of groups, see Young (n 4). 6 ibid. 7  Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR), Art 11. 8  ECHR, Art 4.

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member states can apply to the ECtHR (having exhausted domestic remedies), if they have a claim under the ECHR. Several complaints have been brought under Article 4, which the ECtHR has examined referring to the concept of exploitation. The first two paragraphs of the provision read as follows: 1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour.

The prohibition of slavery and servitude under the ECHR is a fundamental provision that reflects a grave moral wrong. It is an absolute right, which the state cannot limit under any circumstances and from which it cannot derogate.9 Slavery is defined according to Article 1(1) of the 1926 United Nations Slavery Convention as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’. The concept of ‘servitude’ is broader, and prohibits ‘particularly serious form of denial of freedom’.10 It includes an obligation to provide certain services for someone, to live in another person’s property, and the impossibility of changing this condition.11 ‘Forced and compulsory labour’ encompasses ‘all work or service which is exacted from any person and under the menace of any penalty and for which the said person has not offered himself voluntarily.’12 The ECtHR has ruled that there is a violation of Article 4 in a line of cases on domestic servitude and human trafficking. The first case where the Court ruled that there was a breach of Article 4 was Siliadin v France,13 which exemplifies the extremity of the ill-​treatment that is required in order to have a violation of the provision. This involved a migrant domestic worker who was brought to France from Togo at the age of fifteen. She had been promised that she would work, be sent to school, and that her immigration status would be regularised, but she was instead kept as a domestic worker for many years and was never sent to school. She worked very long hours with no pay and no days off, she slept on the floor in the children’s room, and her passport was withheld. Her immigration status was never regularised. The employers were prosecuted under French criminal law. Articles 225-​13 and 225-​14 of the Criminal Code criminalise the exploitation of someone’s labour and the subjection of someone to working or living in conditions that are incompatible with human dignity, but the ECtHR was not satisfied that these provisions were sufficient for the purposes of Article 4 of the ECHR. Since the applicant’s treatment was classified as servitude, there was a need to have effective laws tackling the particular wrong, which French criminal law did not sufficiently address. More recent cases examining workers’ exploitation also involved serious abuse of labour and other human rights. In a case of sex trafficking,14 the Court said that it is ‘undisputed

9  ECHR, Art 15 makes Art 4 para 1 a non-​derogable right. Paragraph 3 of Art 4 also contains some exceptions: ‘For the purpose of this article the term forced or compulsory labour shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognized, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-​being of the community; (d) any work or service which forms part of normal civic obligations.’ 10  Van Droogenbroeck v Belgium, Commission’s report of 9 July 1980, Series B, No 44, p 30 [78]–​[80]. 11  Van Droogenbroeck v Belgium App no 7906/​77, Commission decision of 5 July 1979, DR 17, 59. 12  Van der Mussele v Belgium App no 8919/​80 (ECtHR, 23 November 1983) [32]. 13  Siliadin v France App no 73316/​01 (ECtHR, 26 July 2005). There are other cases on domestic workers. See eg CN v UK App no 4239/​08 (ECtHR, 13 November 2012). 14  The Court has classified both sex and labour trafficking as giving rise to violations of Art 4: Rantsev v Cyprus and Russia App no 26965/​04 (ECtHR, 7 January 2010); Chowdury and Others v Greece App no 21884/​15 (ECtHR, 30 March 2017).

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that victims of trafficking and exploitation are often forced to live and work in cruel conditions and may suffer violence and ill-​treatment at the hands of their employers’.15 A labour trafficking case examined the complaint of migrant workers who were employed under inhuman conditions, and were shot when they complained about these conditions.16 In the same spirit, examining Article 4, which has been incorporated in English law through the Human Rights Act 1998, the UK Supreme Court said that ‘[f]‌orced labour is not fully defined and may take various forms, but exploitation is at its heart’.17 As exploitation is viewed as a severe wrong when linked to Article 4, it primarily gives rise to a duty of the authorities to criminalise conduct and to investigate allegations of victims.18 The linkage of exploitation to criminalisation and to extreme forms of abuse is not unique in the case law of the ECtHR. European human rights law may have in fact primarily been influenced by the law on human trafficking, which is cited in Article 4 cases.19 Human trafficking law at international, regional, and domestic level adopts a criminal law paradigm, and mainly requires the criminalisation of perpetrators of trafficking for the purposes of exploitation. For instance, one of the recent trafficking instruments, the EU Human Trafficking Directive, criminalises trafficking ‘for the purpose of exploitation’.20 On the meaning of exploitation, the Directive explains: Exploitation shall include, as a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.21

Exploitation involves very serious human rights violations in this context, though the attempt to define it is not satisfactory as it simply lists examples of exploitative treatment. The fact that the focus is on extreme examples of ill-​treatment explains why it has been suggested that the concept in the trafficking conventions is a minimum, but that exploitation is in fact a broader problem.22 The association of exploitation with slavery or servitude has several implications, discussed in the introduction. It neglects more subtle forms of ill-​treatment at work, which can also involve violations of human and labour rights. Viewed as a grave moral wrong akin to slavery, exploitation primarily imposes a legal duty to criminalise and prosecute. The conduct in question is conduct in which unscrupulous employers engage and which the state seeks to tackle using the machinery of criminal law,23 while state action that creates vulnerability to exploitation is overshadowed by the employer’s criminality.24 In the sections that follow I argue that the current use of exploitation in law and policy is unjustifiably narrow. What other examples of violations of workers’ rights may be classified as exploitative and

15  Rantsev (n 14) [222]. 16  Chowdury (n 14) [112]. 17  Reilly & Anor, R (on the application of) v Secretary of State for Work and Pensions [2013] UKSC 68, [2014] AC 453, [81]. 18 See Siliadin (n 13); CN (n 13); Rantsev (n 14). See also the UK Modern Slavery Act 2015. 19  Rantsev (n 14) [278]; Siliadin (n 13) [50]. 20  Directive 2011/​36/​EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/​629/​JHA [2011] OJ L101/​1 (EU Human Trafficking Directive), Art 2 para 1. 21  ibid Art 2 para 3. 22  Jean Allain, The Law and Slavery—​Prohibiting Human Exploitation (Brill/​Nijhoff 2015) 345. 23  When exploitation is connected to criminal offences, the need to define it for the purposes of criminal law is pressing, but this is not the purpose of my chapter. For discussion of exploitation in the criminal law context, see Jennifer Collins, ‘Exploitation of Persons and the Limits of the Criminal Law’ [2017] Criminal Law Review 169. See also R v K (S) [2011] EWCA Crim 1691, [2013] QB 82. 24  Bridget Anderson and Rutvica Andrijasevic, ‘Sex, Slaves and Citizens: The Politics of Anti-​Trafficking’ (2008) 40 Soundings 135, 144.

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who is to be held accountable for these violations? To answer this question, we need to revisit the concept of exploitation.

2.  Exploitation in Political Philosophy There are modern accounts in political philosophy that attempt to explain what is wrong with exploitation. These can help us elucidate the concept and put forward a different conception than the one described earlier.25 The starting point of these accounts is usually that exploitation occurs when a person takes unfair advantage of another.26

(a) Opportunistic accounts of exploitation Alan Wertheimer’s influential analysis focuses on exploitation in interpersonal relations, namely on ‘micro-​level’, rather than ‘macro-​level’ injustice.27 On such an account, the wrong in question consists in taking unfair advantage of another person, but this is not examined against background conditions of fairness but against what fairness requires in a specific transaction, paying regard to a person’s consent and examining the fair price of the transaction. There may be good reasons to focus on individual transactions rather than background conditions. As Wertheimer suggests, it is important to examine these instances, because even if there is background injustice, it may be best to respect the wishes of the parties of a specific transaction if it is advantageous to them. Analyses of opportunistic exploitation are important for reasons such as the fact that they focus attention on specific unfair transactions and the responsibility of individual agents.28 Opportunistic accounts of exploitation may fit the modern slavery and human trafficking policy agenda that was described in the previous section to the extent that it focuses on interpersonal relations between individual exploiters and innocent victims: ‘[v]‌ulnerable people who have travelled long distances believing they were heading for legitimate jobs are finding they have been duped, forced into hard labour, and then locked up and abused. Innocent individuals are being tricked into prostitution, often by people they thought they could trust’.29 In this kind of political discourse, the background conditions of justice are generally neglected. Can we ignore background conditions of fairness in this context, though?

(b) Exploitation and vulnerability Other literature suggests that exploitation of a person occurs when someone takes unfair advantage of that person’s vulnerability. Wood argued that when someone’s vulnerability is due to a significantly weaker bargaining position than the other, and the stronger party uses this vulnerability, then we are faced with a situation of exploitation.30 The reason why this is morally objectionable is because respect for others requires that we do not treat their

25  For an overview, see Snyder (n 4). 26  Wertheimer (n 3) 10; Goodin (n 3) 171; Zwolinski (n 4) 156. There are certain accounts of exploitation for which the central issue is whether treatment is degrading rather than unfair. Eg see Sample (n 3). 27  Wertheimer (n 3) 9. 28  Deveaux and Panitch (n 4) 2. 29  Theresa May, ‘My government will lead the way in defeating modern slavery’, The Telegraph (31 July 2016) accessed December 2017. 30  Allen Wood, ‘Exploitation’ in Kory Schaff (ed), Philosophy and the Problems of Work: A Reader (Rowman & Littlefield 2001) 148.

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vulnerabilities as opportunities to advance our own interests.31 Goodin suggested that for exploitation to be objectionable, it has to take advantage of someone’s vulnerability when a person is in ‘an especially strong position vis-​à-​vis another’.32 He explained that such extreme vulnerability may consist in asymmetry of power between the parties, the possession by the powerful of what the weaker party needs, a monopoly of the powerful of what the other needs, and control by the powerful of what the weaker party needs. However, this account is narrow particularly because it requires a monopoly of the powerful. As Sample has put it, it is ‘not merely taking advantage, but kicking a person when he is down’.33 An account examining workers’ vulnerability can bring into the discussion some structural factors. Someone may take advantage of various kinds of vulnerability of another, such as his or her needs or desires, but this will not always be classified as wrongful exploitation in the sense discussed here. The type of vulnerability that interests me here is not the kind of emotional vulnerability that often exists in love relationships, when a lover or a friend has a weakness that can be exploited by their loved ones.34 My focus is on economic or legal vulnerability, which is the reason that we have to examine the role of background structures to which I now turn.

(c) Structural accounts of exploitation There are accounts of exploitation that are concerned with the role of background structures. In this context, Marx’s theory of exploitation has to be the starting point. Marxian exploitation has been defined as ‘the unequal exchange of labour for goods: the exchange is unequal when the amount of labour embodied in the goods which the worker can purchase with his income . . . is less than the amount of labour he expended to earn that income’.35 The Marxist account of exploitation is about structural unfairness, rather than opportunistic exploitation. Market structures place all workers as a class in a position of vulnerability, and exploitation creates a structural relation between social groups.36 Workers constantly transfer the results of their labour to capitalists, who benefit from this system, and become for this reason an oppressed social group.37 The focus on the fairness of the background structures is an important insight. The idea that analyses of exploitation should not only be concerned with individual transactions, and individual conduct and liability, contrary to the criminal law approach described earlier, but should examine background conditions that create structural unfairness, is crucial for my argument.38 For Marx, the element of coercion is central. However, this does not mean that the focus is on coercion that involves individual circumstances. In Marxian terms, coercion captures all wage labourers because they are forced to work for the capitalists as they have no property and no control over the means of production.39 Some may say that when there are alternatives to wage-​labour, such as running a small business, we cannot talk about coercion.40 In response, it has been suggested that even if some individuals can escape from 31  ibid 153. 32  Goodin (n 3) 125. 33  Sample (n 3) 31. 34  It should be noted, though, that some love relationships may lead to labour exploitation, with a good example being that of child labour. 35 John Roemer, ‘Should Marxists Be Interested in Exploitation?’ in Kai Nielsen and Robert Ware (eds), Exploitation (Humanities Press International 1997) 94. 36  Iris Marion Young, Justice and the Politics of Difference (Princeton University Press 1990) 49–​50. 37 ibid. 38  See also Zwolinski (n 4) 172; Iris Marion Young, ‘Responsibility and Global Justice: A Social Connection Model’ (2006) 23 Social Philosophy and Policy 102, 114. 39  Goodin (n 3)  174. Richard Miller, ‘Marx’s Legacy’ in RL Simon (ed), The Blackwell Guide to Social and Political Philosophy (Blackwell 2002) 134–​5. 40  Miller (n 39) 135.

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wage-​labour, proletarians as a class cannot escape, so they are coerced as a class.41 On this account, then, it can be said that all labour is forced in a capitalist society. This is contrary to the contemporary understanding of forced labour that focuses on particularly serious restrictions of freedom. There have been several attempts to refine Marx’s definition for reasons such as the fact that it is not relational, in the sense that it does not consider economy as a whole but focuses on a specific labour contract, it places unequal exchange of labour and goods at the heart of exploitation without justifying this,42 or that it is too narrow and leaves instances of exploitation that involve groups’ gender or race unexplained.43 Wolff has suggested that there is the possibility of a ‘liberal democratic account of exploitation: there is still such a thing as economic exploitation—​or rather many forms and depths of economic exploitation—​even if we reject some of the moral assumptions driving Marx’s own account’.44 Indeed, scholars who further elucidated Marx’s account of exploitation focused on broader issues of distributive justice, and not just on the labour relation. Arneson, for instance, argued that in order to understand exploitation, we need to assess it against a model of egalitarian distribution.45 In this context, it has been said that Marx’s account of exploitation has been refined to such an extent that some theories of exploitation which rely on Marx are in the end applying liberal egalitarian principles of justice.46 Even if we do not think that the working class as a whole are coerced and exploited, we can still resist the current rhetoric according to which only situations that can be classified as slavery, servitude, or forced and compulsory labour, and human trafficking count as exploitation that needs to be addressed, and that it is primarily individual wrongdoing that has to be tackled through the machinery of criminal law. Building on Marxian insights and on accounts of exploitation that examine workers’ vulnerability, what interests me in the remainder of this chapter, then, is the type of exploitation that occurs when someone takes advantage of a vulnerability and the resulting bargaining weakness that is due to societal structures, rather than personal characteristics. Structural injustice ‘exists when social processes put large categories of persons under a systematic threat of domination or deprivation of the means to develop and exercise their capacities, at the same time as these processes enable others to dominate or have a wide range of opportunities for developing and exercising their capacities’.47 Those who are put in the former position have a vulnerability that can be exploited. On such accounts, exploitation ‘derives its badness from preexisting social institutions that underwrite and encourage the transaction’.48

3.  Structural Vulnerability and the Law There may be different social structures that place workers in a position of vulnerability to exploitation.49 Vulnerability created by factors such as race or gender, for instance, has

41  Gerald Cohen, ‘The Structure of Proletarian Unfreedom’ (1983) 12 Philosophy & Public Affairs 3. 42  Jonathan Wolff, ‘Marx and Exploitation’ (1999) 3 Journal of Ethics 105, 106–​7. 43  Young (n 4) 50. 44  Wolff (n 42). Horacio Spector develops an account of exploitation on the basis of risk imbalance that characterises capitalism, ‘A Risk Theory of Exploitation’ in this volume. 45  Richard Arneson, ‘What’s Wrong with Exploitation?’ (1981) 91 Ethics 202. 46  Will Kymlicka, Contemporary Political Philosophy—​An Introduction (OUP 2004) 185. 47  Iris Marion Young (n 38) 114. 48  Sample (n 3) 97–​8. 49  See Jonathan Wolff, ‘Structures of Exploitation’ in this volume.

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systematically and historically been exploited.50 However, in what follows, my focus is on structural vulnerability created by law. This type of exploitation consists in two wrongs: the first wrong is political: the creation of vulnerability by the state when it knows or ought to have known that it can constitute the basis for exploitation; and the second one is the actual exploitation, which is most of the times an interpersonal wrong. For the purposes of this chapter, I will use the following definition of exploitation: (a) background unfairness in the form of a special vulnerability created or exacerbated by law, when the authorities know or ought to know that this can be exploited;51 (b) taking advantage of the vulnerability by violating workers’ rights or other human rights, such as rights to a minimum wage, maximum working time, or health and safety; (c) a benefit for private actors or for the state. This definition of exploitation is different to the account that underlies the modern slavery policy agenda in at least two ways: first, it examines the role of the state and the law as a structure, and not just the role of individual exploiters; and, secondly, it does not only view extreme violations of labour and other human rights as problematic, but all violations of workers’ rights and other human rights.52 To be sure, when considering the role of the law in relation to exploitation, it is important to appreciate that the law constitutes our system of property at a general level:  different areas of law determine rules on the acquisition and transfer of property. When something is a person’s private property, he or she decides how and by whom the property will be used, so that others are not free to use it.53 If someone’s property is used contrary to his or her will, state coercion will ensue. When it comes to the employers, a system of private property always places them in a position of power, and workers in a position of vulnerability. As Collins put it, ‘the law respects a particular concept of private property which gives the owner of capital complete freedom to choose whether or not to put it to productive use. If the law did not respect this privilege, then the power of capital would be radically diminished.’54 The law as an institution ‘constitutes the labour market and determines the relative power of the actors within it’.55 For Marx, by constituting the rules of private property a legal system always places workers in an exploitative relation, because they do not own the means of production. On other accounts, on the other hand, rules of private property are not always unfair,56 but may sometimes be unfair, depending on the theory of social justice that we endorse. When property rules are unfair and place individuals or groups in a position of disadvantage, they create vulnerability to exploitation. Of course, the purpose of this chapter is not to consider fairness in private property rules in general, for which we would need a theory of social justice and a justice-​based critique of property. My purpose is narrower. Suffice it to say that

50  On race and exploitation, see Charles W Mills, ‘Racial Exploitation and the Payoff of Whiteness’ in Deveaux and Panitch (n 4) 75. On gender and exploitation, see Sample (n 3) ch IV; see also John Stuart Mill, The Subjection of Women (Susan Moller Okin ed, Hackett Publishing 1988). 51  The ‘know or ought to know’ formulation is regularly used by the ECtHR to establish positive obligations of state authorities for human rights violations. See eg Osman v UK App no 23452/​94 (ECtHR, 28 October 1998) [116]. 52  On labour rights as human rights, see Virginia Mantouvalou, ‘Are Labour Rights Human Rights?’ (2012) 3 European Labour Law Journal 151. 53  Jeremy Waldron, ‘Homelessness and the Issue of Freedom’ in Jeremy Waldron, Liberal Rights—​Collected Papers (CUP 1993) 309. See also GA Cohen, ‘Capitalism, Freedom and the Proletariat’ in Alan Ryan (ed), The Idea of Freedom—​Essays in Honour of Isaiah Berlin (OUP 1979) 9. 54 Hugh Collins, ‘Against Abstentionism in Labour Law’ in J Eekelaar and J Bell (eds), Oxford Essays in Jurisprudence (Clarendon Press 1987) 86. 55  ibid 87. 56  For an introduction of the key issues on liberalism and property, see Jonathan Wolff, An Introduction to Political Philosophy (OUP 2016) 147.

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if we do not accept that a private property system as a whole is exploitative, we can still explore the role of the law in creating structural vulnerability to exploitation. Because of my narrower focus, it is more suitable to talk about a special vulnerability to exploitation that is created by the law, as the definition of this section does. What I want to highlight in the remainder of this chapter is that there is a perhaps at times unintended function of some laws with a prima facie legitimate aim, which is not often explicitly discussed: legislation can create special structural vulnerability to exploitation by excluding categories of workers from protective rules or by creating rules that make them particularly vulnerable. A result of the special vulnerability that I discuss here is that workers are placed in a position of great bargaining weakness, a position of oppressive subordination more extreme than the typical inequality and subordination that characterises the employment relation. This structural vulnerability may be exploited both by the state itself and by private employers, as the examples that follow show. It is important to appreciate that when looking at the role of laws that create vulnerability to exploitation, our attention shifts away from the modern slavery agenda discussed earlier in this chapter. We are no longer considering only individual wrongdoers and their culpability, but we turn instead to the role of the state and its responsibility. The role of the law in the examples that I discuss here may come as a surprise to labour lawyers. Typically, when we consider the role of the law in the labour law context, we consider and propose legal interventions that can help equalise the inequality of bargaining power in the employment relation. Kahn-​Freund famously said that ‘the main object of labour law has always been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship’.57 The employment relationship is generally described as one of subordination, and the law is supposed to attempt to address the vulnerability of workers through interventions.58 That the law places groups of workers in a position of special vulnerability to exploitation is troubling when the authorities know or ought to know of this situation. It raises questions about how genuine is the political commitment to tackle exploitation that the earlier sections explored. It also gives rise to a demand for accountability, not only of individual wrong-​doers anymore, but of the state that creates the unjust structure. Moreover, it gives rise to an urgent demand for legal reform so as to remove this type of structural injustice. The urgency of the demand stems from the fact that, given the general inequality between the worker and the employer, the special vulnerability created by the law equates to kicking a worker when she or he is down. The focus on laws that systematically disadvantage workers helps us identify particular oppressed groups that are dominated. The groups that this chapter identifies in the sections that follow are already in relations of structural injustice because of other factors, such as gender or race, which the law reinforces through the creation of special vulnerability to exploitation. Special vulnerability created through law reproduces and consolidates their subordination. The following sections discuss four categories of workers who are in a position of structural vulnerability created by law and systematically subject to exploitation. Before doing so, I should clarify that not all instances of structural vulnerability lead to exploitation by employers. But very often they do, while even if they do not, the kind of structural 57  Davies and Freedland (n 1) 8. 58  Hugh Collins, ‘Labour Law as a Vocation’ (1989) 105 Law Quarterly Review 468, 470. See further the discussion in Guy Davidov, A Purposive Approach to Labour Law (OUP 2016) chs 3 and 4 in particular; Hugh Collins, ‘Is the Contract of Employment Illiberal?’ in this volume.

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vulnerability discussed here is still deeply problematic because it places workers in an especially weak position of inequality and subordination vis-​à-​vis their employers.

(a) Migrant workers An example of a special structural vulnerability created by the law is found in the case of migrant workers, both documented and undocumented. In this example, migration regimes, which have as a prima facie legitimate aim to control immigration, constitute structures that create vulnerability of migrant workers to exploitation. The exploitation of this vulnerability consists in paying workers below minimum wage, requiring them to long excessively long hours or live in abusive conditions. Migrant workers under temporary labour migration regimes, for instance, are often placed in a position of vulnerability. Temporary labour migration regimes are schemes that are restrictive in terms of the length of time that the migrant worker can stay in the receiving country. Other restrictions, in addition to time, include binding the worker to a particular work sector or, more controversially, a particular employer. Such regimes are used in many legal orders. Research has highlighted challenges in regulation and negative consequences of the schemes, many of which restrict the human rights of migrant workers.59 For example, some of the regimes do not permit workers to be accompanied by a family member, which has repercussions for the private and family life of the migrant worker.60 In the UK, the very restrictive visa regime of migrant domestic workers, which ‘ties’ the workers to the employer with whom they arrived in the UK, has often been criticised. There is empirical evidence that supports the position that workers with visas that tie them to a particular employer are subject to severe exploitation and other abuse, but there are also significant obstacles in identifying these workers, which are often also set by the state. From an empirical study that I conducted in the UK in the context of which I interviewed twenty-​four migrant domestic workers under a tied visa, it emerged that most of them are paid far below the minimum wage, work very long hours with no time off, have no privacy, and are often victims of psychological and sometimes physical abuse.61 Because of the conditions of their visa, until recently if they escaped their employer (as my interviewees had done), they became undocumented and were then subject to a set of vulnerabilities particular to undocumented workers, discussed momentarily.62 Following some recent reforms, these workers still do not have a general unconditional right to change employer, contrary to recommendations,63 but are only allowed to change employer unconditionally during the first six months of their visa, or if they prove that they are victims of trafficking, which would give them a right to remain in the country for a period of up to two-​and-​a-​half years. The fact that there is no unconditional right to change employer makes the reforms ineffective, for reasons such as the fact that it is very difficult to prove

59  Martin Ruhs, Temporary Labour Migration Programmes: Policies, Adverse Consequences and the Need to Make them Work (International Labour Office 2003); Rosie Cox, ‘Gendered Work and Migration Regimes’ in Liam Leonard and Ragnhild Aslaug Sollund (eds), Transnational Migration, Gender and Rights (Emerald 2012) 33. See also Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era (Hart 2016). 60  See Ruhs (n 59). 61  Virginia Mantouvalou, ‘Am I Free Now? Overseas Domestic Workers in Slavery’ (2015) 42 Journal of Law and Society 329. 62  See also details of the kafala system, UN Human Rights Council, Report of the Special Rapporteur on contemporary forms of slavery, including its causes and consequences (18 June 2010) [47]–​[48]. 63  James Ewins, ‘Overseas Domestic Workers Visa: Independent Review’, Gov.uk (17 December 2015) accessed December 2017.

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abuse, particularly for workers employed in the household of the employer. This category of migrant workers, then, continues to be in a position of special vulnerability to exploitation, which the authorities know.64 Another category of migrants who are in a situation of such vulnerability is that of undocumented workers.65 In many legal orders, undocumented migrants have no legal right to work under immigration law. If they do work, they cannot claim rights on the basis of their employment relation, because courts view their contract as illegal. The doctrine of illegality in English contract law bars claims for unpaid wages and other employment rights.66 Contract law places undocumented workers in a position of structural vulnerability, which may be sustained and abused by the employer. This vulnerability is further exacerbated through the Immigration Act 2016, which criminalises illegal working. The relevant offence applies when someone subject to immigration control works when that person knows or has reasonable reason to believe that he or she is not entitled to work because of his or her immigration status.67 This offence carries a maximum of six months’ imprisonment or a fine, while the prosecutor may also seek confiscation of the individual’s earnings under the Proceeds of Crime Act 2002. In this way, the state creates a structure that facilitates the exploitation of migrant workers by private employers, but also arguably by the state itself, which can confiscate workers’ earnings.68 The extreme vulnerability to exploitation of undocumented workers was emphasised in Chowdury, where the ECtHR said that the employers were aware of their resulting fear of arrest and deportation,69 took advantage of this vulnerability by not paying them, and finally shot them when they protested against their exploitation. As the authorities had been made aware of the workers’ vulnerability, the Court ruled that their inaction constituted a violation of the Convention.

(b) Domestic workers In many jurisdictions, labour legislation on working conditions and union representation differentiates the treatment of domestic workers from other workers.70 Even though the relevant legislation may have the prima facie legitimate aim of regulating a sector that is not typical because of the nature of the work, it places domestic workers in a position of special vulnerability to exploitation. In the UK, domestic workers are exempted from legislation on working time,71 minimum wage, and health and

64 ibid. 65 See Virginia Mantouvalou, ‘The Right to Non-​Exploitative Work’ in Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart 2015) 39. 66  Hounga v Allen and Another [2014] UKSC 47, [2014] 1 WLR 2889; Alan Bogg and Sarah Green, ‘Rights Are Not Just for the Virtuous: What Hounga Means for the Illegality Defence in the Discrimination Torts’ (2015) 44 Industrial Law Journal 101; ibid. 67  Immigration Act 2016, s 34. 68  There are also instances where the state directly employs undocumented workers. See Elwyn Roberts, ‘Illegal workers found on Wrexham prison construction site’, Daily Post (16 April 2016) accessed December 2017. 69  Chowdury (n 14) [95]. 70  Virginia Mantouvalou, ‘Human Rights for Precarious Workers: The Legislative Precariousness of Domestic Labor’ (2012) 32 Comparative Labor Law and Policy Journal 133. 71  Working Time Regulations 1998, SI 1998/​1833, reg 19 excludes domestic workers in private homes from the majority of regs 4–​8 on maximum weekly working time, maximum working time for young workers, length of night work, night work by young workers, and restrictions on the patterns of work that can be set by employers when there is risk to the health and safety of a worker. On working time and domestic work, see Deirdre McCann and Jill Murray, ‘Prompting Formalisation through Labour Market Regulation: A “Framed Flexibility” Model for Domestic Work’ (2014) 43 Industrial Law Journal 319.

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safety.72 On minimum wage, for instance, the UK Minimum Wage Regulations 1999 exempt from the scope of protection family members and those living within the family household who are not family, but who work in the household or for the family business. The provisions are interpreted as applying to some domestic workers.73 Employers of domestic workers frequently take advantage of their vulnerability by underpaying them or by not paying them at all, for instance. The case Nambalat v Taher74 of the UK Court of Appeal illustrates the operation of the family member exemption from minimum wage. Ms Nambalat, a live-​in domestic worker, claimed that she was not treated as a member of the family, and was therefore entitled to a minimum wage. The Court of Appeal ruled that she took part in many family activities, and that even though she did not have her own room and she at some point had to sleep on the floor in the dining room, she was still treated as a family member and hence was not entitled to the minimum wage.75 Given that the regulation of domestic work is very challenging, it is unsatisfactory that the law creates this additional structural vulnerability to exploitation by suggesting misleadingly that this category of workers is treated as ‘family’.

(c) Prison work/​work in immigration detention Prison workers or those who work in immigration detention are also affected by special structural vulnerability created by law. In the UK and in other countries, prisoners are commonly viewed as having forfeited many legal rights and not just their physical liberty.76 In many legal orders, prisoners may engage in work (not as part of their sentence). The significant benefits of fair work in prison have been highlighted in research.77 It has also been suggested that one aspect of vulnerability of prison workers consists in the fact that they do not have freedom of movement, and are hence in a very disadvantaged position in comparison to other workers,78 as well as the fact that sometimes prison work is viewed as work done in the ‘ordinary course of detention’.79 It is telling that Article 4 of the ECHR, which prohibits slavery, servitude, and forced and compulsory labour, explicitly states:  ‘For the purpose of this Article the term “forced or compulsory labour” shall not include . . . any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during release from such detention.’80 The International Labour Organisation draws a distinction between private and public prisons in the Forced Labour Convention No 29, and places specific requirements to the regulation of private use of prisoners’ labour, probably because of the fear of exploitation of prison workers by

72  UK Health and Safety at Work Act 1974, s 51 which regulates working conditions, inspection, and sanctions, excludes domestic workers from its scope altogether. 73 See Julio & Others v Jose & Others, UKEAT/​0553/​10/​DM, UKEAT/​0596/​10/​DM, UKEAT/​0597/​10/​DM, UKEAT/​0070/​11/​DM, UEKAT/​0071/​11/​DM, 8–​10 November 2011. The Low Pay Commission highlighted the problems in the interpretation and enforcement in its 2011 National Minimum Wage Report, paras 4.6–​4.7. 74  Nambalat v Taher & Anor; Udin v Pasha & Ors [2012] EWCA Civ 1249, [2013] ICR 1024. 75  There are many employment tribunal decisions involving minimum wage for domestic workers. The challenges are also illustrated in Ajayi v Abu & Anor [2017] EWHC 1946 (QB). 76  See the debates in the UK around prisoners’ right to vote in response to Hirst v UK App no 74025/​01 (ECtHR, 6 October 2005). 77  Richard Lippke, ‘Prison Labour:  Its Control, Facilitation, and Terms’ (1998) 17 Law and Philosophy 533; Howard League for Penal Reform, ‘Business Behind Bars: Making Real Work in Prison Work’ (2011) accessed December 2017. 78  Lippke (n 77) 553. 79  ECHR, Art 4. 80  International Labour Organisation Forced Labour Convention, 1930 (No 29), Art 4 para 3(a).

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private entities.81 It excludes prison work from the scope of the Convention when it is performed in state prisons, but includes private-​run prisons. Labour law excludes prisoners from protective rules. This is an instance of special structural vulnerability which the state itself exploits, but which can also be exploited by private actors, when private entities run a prison. Prison workers are excluded from the right to form trade unions in some legal orders.82 Significantly, moreover, prisoners are not entitled to the minimum wage, for the prima facie legitimate reason of reducing public spending for the running of prison facilities. This vulnerability of prison workers is then exploited by underpaying them. In a report that was published by the Howard League for Penal Reform, it was documented that current average pay for prison service work is £9.60 per week.83 The Howard League recommended that prisoners should not be paid below the national minimum wage. It is also worth noting that the Committee of Experts of the International Labour Organisation said in a report: ‘where private enterprises are permitted to pay prisoners wages that are less than the minimum wage, their relationship cannot be considered comparable to a free employment relationship’.84 Detainees who work in private-​run immigration detention centres are also in a position of special structural vulnerability. Immigration detainees are either asylum-​seekers awaiting the outcome of their asylum application or migrants awaiting deportation.85 In terms of their work, in English law, Rule 17 of the Detention Centre Rules says that paid work ‘opportunities’ may be provided in detention centres. Section 59 of the Immigration, Asylum and Nationality Act 2006 excludes immigration detainees from minimum wage legislation. Detention Services Order 01/​2013, in turn, provides that detainees should be paid £1.00 per hour for ‘routine work’ (cleaning, for instance), and £1.25 per hour for ‘specified projects’ (painting, for instance).86 Private companies running these detention centres exploit detainees by getting them to perform essential work for the maintenance of the centres, and pay them £1 per hour for this work, according to the Detention Order. In all these situations of prison and immigration detention work, the law may have a prima facie legitimate aim, such as the reduction of public spending for the running of detention facilities. However, it creates structural unfairness, and the state either exploits the unfairness that it has created or facilitates the exploitation by private actors. The ECtHR examined prison work in Stummer v Austria,87 which highlights further effects of the special structural vulnerability of prison workers with respect to their pension rights.

81  See Colin Fenwick, ‘Private Use of Prisoners’ Labor: Paradoxes of International Human Rights Law’ (2005) 27 Human Rights Quarterly 249, 273; Faina Milman-​Sivan, ‘Prisoners for Hire: Towards a Normative Justification of the ILO’s Prohibition of Private Forced Prisoner Labor’ (2013) 36 Fordham International Law Journal 1619. 82  Jones v North Carolina Prisoners’ Labor Union, Inc, 433 US 119 (1977); see Noah D Zatz, ‘Working at the Boundaries of Markets:  Prison Labor and the Economic Dimension of Employment Relationships’ (2008) 61 Vanderbilt Law Review 857, 923; see also ‘On Strike in Germany’s Jails: An Interview with the Prisoners’ Union’ (26 January 2016)  accessed December 2017. 83  Howard League (n 77) 35. 84 ILO Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labour Conference (ILO 1990), 90. 85  On immigration detention generally, see Catherine Costello, ‘Immigration Detention: The Grounds Beneath Our Feet’ (2015) 68 Current Legal Problems 143; see also Corporate Watch, ‘Immigration Prisons: Brutal, Unlawful and Profitable—​Yarl’s Wood: A Case Study’ (2011) accessed December 2017. On exploitation of labour in immigration detention, see Aimee Riese, LLM dissertation, UCL, 2015; Phil, ‘Are £1 an Hour Jobs Legal?’, Corporate Watch (22 April 2015)  accessed December 2017. 86  Home Office, ‘Detention Services Order 01/​2013: Paid work (26 March 2013)  accessed December 2017. 87  Stummer v Austria App no 37452/​02 (ECtHR, 7 July 2011).

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(d) Care workers in zero-​hours contracts A different type of special structural unfairness created by the law emerges in situations where the state knows or ought to know that the legislation creates vulnerability, even if it does not consist in specific exclusions. An example of this category is provided in the so-​called ‘zero-​ hours’ contracts. The definition of zero-​hours contracts is contested.88 Some describe the arrangements as personal work relations for which ‘there are no fixed or guaranteed hours of remunerated work’.89 These may have a prima facie legitimate aim, consisting in the supposed flexibility that some workers may value. There are several different work arrangements that are classified as such. As the arrangements are different, they lead to different types of classification of the relationship under the common law, with varying degrees of legal protection.90 Because those under zero-​hours contracts do not have any minimum number of hours guaranteed, they will often not be classified as employees in English law, so they would not have rights, such as protection from unfair dismissal. They may not even be classified as workers, which means that they would not be entitled to rights, such as the minimum wage. In order to analyse zero-​hours work arrangements from the perspective of structural injustice, I will focus on the relatively coherent category of care workers.91 Care workers are people who support others in their own homes by helping them with basic daily activities, such as washing and feeding. In the past, care workers in the UK were directly employed by local authorities. This changed with several reforms to make the system more cost-​effective, and now 97% of care workers are in the private sector.92 Under the Care Act 2014, local authorities in the UK have a duty to promote well-​being by supporting individuals to control their daily lives. The Act’s aim is to build support around each individual person in need of care, which is a prima facie legitimate aim. Each person has a budget to pay for his or her care. However, it has been argued that ‘the Care Act’s principle of service-​user control over caring labour undermines the entitlement of homecare workers to statutory minimum wage protection’.93 The majority of care workers are employed under zero-​hours contracts.94 This means that they do not have a guaranteed number of hours per day or per week. They work and are paid for periods of 15, 30, 45, or 60 minutes per day for each individual in need for care. The 15-​minute slots have been particularly criticised because they do not provide sufficient time for the worker to attend to the needs of the care receiver. Most travelling time is unpaid,95 as well as time spent on training, assistance provided in emergency, and time between visits. It was established, for instance, that in 2014, 220,000 home-​care workers in England were earning below the minimum wage.96

88  Abi Adams, Mark Freedland, and Jeremias Prassl, ‘The “Zero-​Hours Contract”: Regulating Casual Work, or Legitimating Precarity?’, Oxford Legal Studies Research Paper No 11/​2015 (2015) accessed December 2017. 89  Mark Freedland and Nicola Kountouris, The Legal Construction of Personal Work Relations (OUP 2012) 318. 90  Adams, Freedland, and Prassl (n 88) 10. 91  On this, see further LJB Hayes, Stories of Care:  A Labour of Law—​Gender and Class at Work (Palgrave Macmillan 2017). 92  LJB Hayes, ‘Care and Control: Are the National Minimum Wage Entitlements of Homecare Workers at Risk under the Care Act 2014?’ (2015) 44 Industrial Law Journal 492, 497–​8. 93  ibid 495. 94  ibid 498. 95  The Court of Justice of the European Union has found that travelling time, at least for certain categories of workers, should be paid: Case C-​266/​14 Federación de Servicios Privados del sindicato Comisiones obreras [2016] 1 CMLR 22. On minimum wage for care workers who sleep-​in, see Royal Mencap Society v Tomlinson-​Blake [2017] UKEAT 0290_​16_​2104, [2017] WLR(D) 443. 96 Unison, ‘UNISON urges illegal wage crackdown in homecare sector’ (29 October 2014)  accessed December 2017.

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In the example of care workers in zero-​hours contracts we are not faced with explicit exclusions of a category of workers from protective rules, but with a situation where the state knows or ought to know that the legal system creates a special structural vulnerability which can be, and is, systematically exploited. There are good reasons to believe that the authorities know of this situation. In a parliamentary debate on zero-​hours contracts, for instance, Conservative MP Richard Bacon said: ‘The best argument against zero-​hours contracts is that they provide opportunities for unscrupulous employers who are determined to exploit people and who engage in practices that they would not wish to endure themselves, and that, in certain sectors such as domiciliary care, the problem amounts to systematic exploitation.’97 The Care Act, the zero-​hours contracts arrangements, as well as the regulation of their working time create the conditions for care workers’ vulnerability, which is systematically exploited through the payment of below-​minimum wages.

4. Conclusion The usage of exploitation in many legal and policy documents is predominantly preoccupied with situations of slavery and servitude, and with individual wrongdoing and accountability. This may be welcome as a starting point because it generates debate on the classification of labour rights as human rights, raises awareness of, and helps to start addressing, some serious abuses of workers’ rights. However, it can also drive an agenda in labour regulation that focuses on the extremes, while neglecting violations of rights such as the minimum wage or other instances of labour exploitation in which opportunistic employers engage. By not describing these less extreme forms as exploitation, the moral wrong of exploitation is obscured, and employers remain unaccountable for their actions. Most significantly, the current approach turns a blind eye to the role that unjust structures sometimes play in creating conditions of vulnerability to exploitation, from which either private employers or the state itself may benefit. In this chapter, having discussed the concept of exploitation in political philosophy as an alternative to its current usage in law and policy, I suggested that vulnerability to exploitation may be due to both individual and structural factors. Employers can take advantage of a worker’s personal circumstances, and exploit their vulnerability by violating their labour and other human rights. At the same time, though, we should not underestimate the role of structures that place workers in conditions of vulnerability to exploitation. Structural oppression of groups of workers is created and reproduced in several political and economic institutions, but the role of the law in creating special vulnerability to exploitation should not be neglected. In this chapter I discussed the role of the law in creating structural injustice, and focused more particularly on legislation that excludes or treats differently certain groups of workers, making them in this way especially vulnerable to exploitation. That the state has such a role in creating structural conditions of vulnerability to exploitation through law is deeply troubling, given that the employment relation is already a relationship of inequality and subordination. The existence of this special structural injustice shows that—​contrary to Theresa May’s contention in the introduction of this chapter—​not only does the law not fully address workers’ exploitation, but that some laws also reproduce and consolidate their vulnerability to exploitation. If we are to address exploitation in a more coherent and systematic manner, a deeper understanding of the sources of workers’ vulnerability is needed. This requires examining 97  HC Deb, 27 May 2015, vol 596, cols 152–​60.

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the social structures, and particularly the role that the law may play in creating vulnerability to exploitation. It also requires interrogating the ways in which the state itself may benefit from this exploitation. Human rights law has a potentially significant role to play by examining state conduct and accountability. Lawyers have to be imaginative when employing the legal tools of human rights to expose workers’ exploitation. Liberal human rights documents, with their focus on civil and political rights, may have limitations as we saw earlier in this chapter, but courts have shown some willingness to address violations of workers’ rights in cases of violations that are not linked to structural injustice of the kind that I discuss here,98 as well as some cases of structural injustice.99 Having identified unjust structures, new or revised labour laws should help address the vulnerability created through these structures and equalise the bargaining power between the employer and the worker.

98  See eg unfair dismissal cases, such as Redfearn v UK App no 47335/​06 (ECtHR, 6 November 2012). 99  Rantsev (n 14); Chowdury (n 14).

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12 A Risk Theory of Exploitation Horacio Spector* 1. Introduction In this chapter I want to discuss the foundation of the legal right of workers to fair compensation as established, for instance, in Article 7 of the International Covenant on Economic, Social and Cultural Rights. The implication of this right is that market wages may not be fair, and often are not. Now workers get fair compensation when they are given their due, that is, a combination of wage and benefits that is reasonably commensurate with their contribution to the productive process. This means that the value underlying the labour right to fair compensation is transactional fairness or equity. The main point of the right to fair compensation is to ban exploitation of workers by capitalists. While most people intuitively agree on the exploitative character of typical instances of labour exploitation (for example, sweatshops in third world countries), there is no consensus about how to articulate those intuitions in a theory that could explain the mechanisms of exploitation. The basic question I want to address is the following: can labour exploitation be considered a structural mechanism in the capitalistic system of production according to contemporary economic theory? The chapter is organised as follows. I will start by explaining in Section 2 why Marxian approaches to exploitation are no longer plausible. In Section 3 I examine accounts of capitalist exploitation that are based on capitalists’ unequal bargaining power. I argue that the assumption of market power cannot be made on a general basis and that, labour law being a general institutional arrangement, it should be grounded on a systemic feature of capitalism. In Section 4 I discuss two accounts of exploitation that supposedly depart from the market power analysis. One account introduces the idea of vulnerability and, in a later rendition, appeals also to the notion of domination as arising out of the underlying structural inequalities in the distribution of resources. The other focuses on the size of the actual losses that an exploitee needs to incur if he does not accept a monopolist’s or monopsonist’s offer. In Section 5 I explore a different theory that is based on the impact of risk aversion on workers’ choices when they are subject to the risk of significant losses in the case of non-​transaction. Although this theory still uses, in an abstract sense, a notion of bargaining power, it picks out an aspect of industrial capitalism that is different from the contingent number of labour buyers or product sellers and their respective market shares. I suggest that the structure of industrial capitalism allows capitalists to systematically exploit wage workers in gratuitously taking from them a surplus that they would be unwilling to relinquish if they were capable of spreading their occupational risk. In Section 6 I submit that the right of workers to fair compensation can be fruitfully understood as a form of redressing the risk imbalance that characterises industrial capitalism. Furthermore, I suggest that labour law as a whole can be *  I am grateful for excellent comments made by Cindy Estlund, the editors of this volume, and other participants at the conference on the Philosophic Foundations of Labour Law. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 12 © Horacio Spector 2018. Published 2018 by Oxford University Press.

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interpreted in light of a narrative based on the idea of risk unfairness. This narrative underscores that wage workers bear a disproportionate share of the risk needed to enable mutually advantageous industrial growth and economic efficiency. I conclude in the last section.

2.  Labour Exploitation as Misappropriation of Objective Value It is useful to begin the analysis of exploitation in labour contexts by providing a couple of uncontroversial examples. One example of labour exploitation is the compensation of maquiladora workers in Central America. Another example is the compensation of workers in the garment industry in such countries as Argentina, India, and even the UK. These workers are exploited because they earn miserable wages compared with the value of their physical production, even if they prefer such exploitation to a few unappealing alternatives. I hasten to say that these are just two examples and that we should not assume that the same mechanisms of exploitation operate in all examples. In fact, it is probably false that for every scenario of labour exploitation there is one and only one causal mechanism that generates the exploitation. One argument for that conclusion is that, as Alfred Marshall taught, there is a wide variety of factors that reduce workers’ bargaining power, such as deficient training, immobility, perishability of labour power, and the insufficiency of workers’ savings as a reserve fund. 1 And yet it may be true that there is one causal mechanism of exploitation that is present in every scenario of labour exploitation. The classic defender of the latter proposition was Marx. As is well known, he characterised labour exploitation as the capitalist’s appropriation of surplus value from labourer. Marx sought to pinpoint a structural mechanism of capitalism that causes a transfer of objective value from labourers (as a social class) to capitalists (as a social class). The famous surplus value argument is that the capitalist exploits a wage worker by gratuitously taking from him a quantity of surplus value that is equivalent to the difference between the value of the manufactured product and the labour that is socially necessary to reproduce the worker’s labour power.2 Marx’s notion of exploitation is factual and only normative by a kind of conversational implicature. In effect, under the assumption that the worker is entitled to the full value of what he produces, Marx implied that the capitalist wrongfully expropriates some units of labour time from the labourer (ie an amount of surplus labour).3 While the labourer deserves compensation in fair return for his surplus productive labour, the capitalist takes that surplus for free. On the Marxian view, unregulated freedom of contract allows capitalists to misappropriate workers’ surplus product. It is generally assumed that the triumph of the marginalist revolution wreaked havoc with Marx’s surplus value argument insofar as this argument assumes that the value of products (including labour) is determined by the labour time that they embody. Jerry Cohen offers a good discussion of the connection between the labour theory of value and Marxian accounts of exploitation. For Cohen, the argument is based on the following propositions: (a) labour alone creates value; (b) the labourer is only paid the value of his labour power; and (c) the value of the product that he creates exceeds his labour power. The surplus value—​that is, the difference between the value created by the labourer and the value

1  Charles E Lindblom, ‘ “Bargaining Power” in Price and Wage Determination’ (1948) 62 Quarterly Journal of Economics 396. 2  Karl Marx, Capital I (Samuel Moore and Edward Aveling trs, William Glaisher 1920) 198–​200. 3  Joan Robinson, An Essay on Marxian Economics (2nd edn, Macmillan 1966) 21–​2; Richard J Arneson, ‘What’s Wrong with Exploitation?’ (1981) 91 Ethics 202.

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of his labour power—​represents the measure of the labourer’s exploitation.4 The rejection of the labour theory of value left premise (a) unsupported. But Cohen argues that premise (a) is not a consequence of the labour theory of value. This theory states that the value of a product p at time t is determined by the labour time that is socially necessary to produce p at time t (not by the labour time already embodied in the production of p). As such, the labour theory of value says nothing about the backward-​looking notion of value creation. It is not the case, then, that premise (a) must be rejected because the labour theory of value is false. It must be rejected because it cannot be warranted by the labour theory of value, regardless of whether this theory is true or false. Cohen tries to cut off the idea of exploitation from the labour theory of value. He argues that the exploitation argument depends on a couple of reasonable non-​technical assumptions:  (a) the labourer is the only person who creates the product, that which has value; and (b) the capitalist appropriates (‘receives’) some of the value of the product.5 On this reconstruction, the argument says that ‘the proletarian produces the whole product, but the capitalist appropriates part of the value of the product’.6 Cohen emphasises that this argument does not presuppose the labour theory of value. This is very controversial. In fact, for Marx the capitalist exploits the labourer because he obtains greater value (ie the value of the product) for lesser value (ie the value of the labour power). If the value of labour power (ie wage) is equal to the labour time that is socially necessary for the labourer’s subsistence, this appropriation of value is possible. On the contrary, if—​as marginalists state—​the wage is equal to the marginal product of labour (under perfect competition), there cannot be a difference between the value the labourer produces and the value he receives, because the labourer is paid the value of his labour power as determined by his marginal productivity. The labour theory of value is not necessary for the exploitation argument (as Cohen contends), but it enables this argument. In fact, theories of value other than the labour theory of value may render it impossible to characterise the employer’s exploitative appropriation in terms of a difference between the value of the worker’s labour power and his productive contribution to the value of the product. For instance, according to the neoclassical account of value, in a perfectly competitive market the worker is paid a wage that is equivalent to the full market value of the ‘product’ he creates, that is, his labour.7 The concept of ‘product creation’ as used by Cohen has no meaning in the neoclassical paradigm of economics. It is rather a normative notion for displaying with respect to the wage–​labour relation the injustice of capital accumulation by one class, the capitalists, at the expense of another class, the labourers. More than a feature of each labour contract, ‘product expropriation’ in this context denotes a feature of the background structure of unequal power resulting from the unequal distribution of capital ownership. In a similar vein, John Roemer also eschews the labour theory of value by analysing capitalistic exploitation in game-​theoretic terms as a logical corollary of the unequal distribution of capital between the coalition of propertyless producers and the coalition of capitalists.8 Roemer intends to frame a general theory of exploitation, that is, one applicable to every system of production. Thus, he says that the unequal distribution of freedoms, alienable resources, and inalienable goods respectively generate different forms of exploitation

4  Gerald A Cohen, ‘The Labor Theory of Value and the Concept of Exploitation’ (1979) 8 Philosophy & Public Affairs 339. 5  ibid  355–​6. 6  ibid 358. 7  Jeffrey Reiman, ‘Exploitation, Force, and the Moral Assessment of Capitalism:  Thoughts on Roemer and Cohen’ (1987) 16 Philosophy & Public Affairs 6. 8  John E Roemer, A General Theory of Exploitation and Class (Harvard University Press 1982) 20, 21.

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in feudalism, capitalism, and socialism.9 In capitalism, workers as a class or coalition are exploited because of their constraints in the access to alienable private property. So the unequal allocation of alienable resources to different coalitions guarantees that workers as a class will transfer to capitalists an uncompensated fraction of their labour time. On this view, labourers are exploited in that the amount of labour time embodied in any bundle of goods they could possibly purchase with their revenues in any feasible assignment of goods received is less than the labour time they expended in the productive process.10 Roemer’s class exploitation correspondence principle (CECP) states that, at an equilibrium, every producer who is in a labour-​hiring coalition is an exploiter, and every producer who is in a labour-​selling coalition is exploited.11 As pointed out by commentators, Roemer handles two different concepts of exploitation: a concept of exploitation as unequal exchange of labour time and a concept of exploitation as unfair distribution in terms of hypothetical alternatives.12 In subsequent works, Roemer makes it clear that the notion of unequal exchange is not essential to exploitation and he directly frames exploitation in terms of property relations in order to accommodate some possible counter-​examples to the former notion. He says that the coalition of workers is exploited if there is an alternative arrangement of property relations such that, were they to withdraw from the present system of property relations endowed with their per capita share of alienable property, they would be better off under that alternative arrangement (whereas the class of capitalists would be worse off).13 Roemer’s notion of exploitation in terms of hypothetical withdrawals fails to capture the causal mechanism of exploitation, as rightly pointed out by Jon Elster.14 Since Roemer concedes that capitalism, unlike feudalism, rules out coercive labour agreements, he must imply that the class of capitalists have a monopolistic and, therefore, unequal control of one critical component of the productive process (ie capital). This inequality—​he thinks—​ allows capitalists to set the wages of the class of propertyless producers at exploitative rates. It is essential for Roemer to define exploiters and exploitees as ‘classes’ or ‘coalitions’ rather than individuals. In fact, unequal but non-​monopolistic capital ownership would not cause exploitation of individual workers. Even if unequal, capital ownership might be so spread out that the competitive advantage of capitalists in labour bargaining vanishes. This means that it is the idea of a class or coalition possessing monopolistic advantage that makes the work. Therefore, inequality of capital ownership is a necessary but secondary feature of the monopolistic access to capital by the class or coalition of capital owners. At the level of individuals, it might not be the case that every single capitalist exploits each of the workers that he hires. To be sure, this would be the case if the coalition of capitalists were organised to take advantage of their collective monopolistic power. But it is not realistic to state that all capitalists are as a matter of fact organised in a cartel for the exploitation of workers, and in most capitalistic countries that kind of cartelisation is also illegal. On Roemer’s view, exploitation is a necessary feature of the capitalistic mode of production, because he defines exploitation as the misappropriation of labour time given the initial inequality of capital ownership. A  fair wage should compensate labourers for the total labour time that is embedded in the products they produce, whereas an exploitative wage compensates labourers for only a fraction of the labour time therein embedded. Though there is no claim that the value of a product (including labour) is determined by the

9  John E Roemer, Egalitarian Perspectives (CUP 1994) 21–​9. 10  Roemer (n 8) 121–​2; Roemer (n 9) 68–​70. 11  Roemer (n 8) 78–​83. 12  Jon Elster, ‘Roemer versus Roemer: A Comment on “New Directions in the Marxian Theory of Exploitation and Class”’ (1982) 11 Politics & Society 363, 365. 13  Roemer (n 9) 39–​41. 14  Elster (n 12) 365–​9.

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labour time that is socially necessary to (re)produce it, the assumption that a wage involves a misappropriation if it compensates labourers for a fraction of the labour time that they incorporate into the products only makes sense if the value of labour is determined in terms of labour time. On the other hand, if the link between labour time and the value of labour is severed and exploitation is conceived of as unfair distribution, it becomes too general a concept to allow a criticism of capitalist relations for their exploitative character that is distinct from the general criticism of capitalism as based on an unjust or unfair distribution of the means of production.15 Despite my objections, I agree with Cohen and Roemer that the demise of the labour theory of value does not pre-​empt the possibility of identifying a different systemic property of industrial capitalism that is responsible for the exploitative character of wage–​labour relations. The Marxian insight, in its most abstract form, is that exploitation is not a local, contingent phenomenon but rather a pervasive trait of the capitalist mode of production. It is this insight that I wish to articulate in a different fashion. The challenge is to identify a systemic feature of capitalism other than the misappropriation of surplus value that explains why unregulated industrial capitalism would allow payment of unfair compensation to workers. In other words, can labour exploitation be considered a structural or systemic element of capitalism in the marginalist era? Though in neoclassical economics the labourer’s wage is equal to the marginal product of her labour, that fact does not entail that the wage amounts to a fair wage, that is, the full compensation the worker deserves. The marginal productivity analysis is only a factual claim about wage rates, and from this claim alone no normative consequence can follow. Therefore, marginal productivity on its own does not establish the normative conditions of fairness in labour compensation. If the prediction were coupled with a normative theory that equated the marginal product with fair remuneration, unfair appropriation of objective value would certainly be impossible under conditions of perfect competition, since perfect competition guarantees that the worker is paid his marginal product. But that normative theory would be an unacceptable extrapolation from the marginalist account of resource allocation. The concept of marginal product does not seek to justify the relative compensation that is to be assigned to workers. It has an explanatory or predictive function.16

3.  Exploitation as Unequal Bargaining Power In a perfectly competitive market, many sellers and buyers of a homogenous product or service lack influence or power to set market terms because they supply or demand an insignificant share of the market output. Under those conditions, the capitalist could not exploit the labourer. The reason why exploitation could not occur in a perfectly competitive market is that the product demand curve and the labour supply curve are perfectly elastic: producers are price-​takers and employers are wage-​takers. Therefore, employers have no power to set wage rates and unequal bargaining power has no room.17 However, in non-​competitive markets the ability to set prices and wages, that is, bargaining power, does exist. One variety of non-​competitive markets is markets with monopolistic competition. In such markets,

15  For an interesting critique of Roemer’s property relations definition of exploitation, see Jeffrey Reiman, ‘Exploitation, Force, and the Moral Assessment of Capitalism’ (1987) 16 Philosophy & Public Affairs 3, 21–​5. 16  Alan Wertheimer, Exploitation (Princeton University Press 1996) 229. 17  Charles E Lindblom, ‘ “Bargaining Power” in Price and Wage Determination’ (1948) Quarterly Journal of Economic 396, 400; Michael J Trebilcock, ‘The Doctrine of Inequality of Bargaining Power:  Post-​Benthamite Economics in the House of Lords’ (1976) 26 University of Toronto Law Journal 365.

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products are differentiated and, therefore, fall short of perfect substitutability. Monopolistic markets differ in their degrees of lack of substitutability or lack of perfect elasticity, as there are intermediate market situations that are neither perfectly competitive nor fully monopolistic. This is the classic theme of Joan Robinson’s The Economics of Imperfect Competition and Edward Chamberlin’s The Theory of Monopolistic Competition.18 Despite the similarities in their accounts of ‘imperfect’ and ‘monopolistic’ competition, Robinson and Chamberlin disagreed on labour exploitation. While Chamberlin thought that in monopolistic competition all factors receive less than their marginal products, Robinson adopted the Pigouvian definition of exploitation, as we shall presently see, and argued that specific exploitation of labourers does take place in situations of input monopsony and output monopoly.19 In his The Economics of Welfare, Pigou says that labourers are exploited if they are paid less than the value of their marginal net product. He argues that this can only happen if the relevant labour market includes a ‘monopolistic element’ that hampers perfectly free competition. Lack of perfect competition may arise out of two causes: (a) costs of movement prevent workers from selling their labour power in places or occupations where their marginal net product to firms is maximised; or (b) workers are ignorant about their ability to maximise their marginal net product in such places or occupations. When the market is monopolistic in any of these senses, employers have bargaining power that they can utilise to negotiate and pay ‘unfair’ wages. 20 Following Pigou, Robinson defines ‘exploitation’ as a situation in which ‘the wage is less than the marginal physical product of labour valued at its selling price’.21 Robinson acknowledges that there is no labour exploitation if individual workers enjoy complete freedom to move from firm to firm.22 She claims that exploitation is not possible in the absence of monopoly or monopsony power by the employer. For our purposes, it is only the second case that is relevant. Robinson calls it monopsonistic exploitation. In such situation, a single employer or various employers acting in concert set the price of the labour input, and, therefore, paid wages are less than the value of the marginal physical product of labour. In the simplest case of one single employer, minimum wage laws and collective bargaining can palliate this form of exploitation; in cases of organised employers, the solution may lead to higher prices of the product.23 Without explicit quotation, moral philosophers often echo the Pigou–​Robinson approach to exploitation. Thus, they offer the advantageous use of bargaining power in a non-​ competitive market as the simplest example of unfair advantage-​taking. For instance, Alan Wertheimer has proposed a persuasive account of wrongful exploitation that is grounded on the idea of non-​competitive prices.24 Wertheimer claims that a plausible conception of fair transactions, at least for a certain range of cases, is one that states that the ‘fair market value’ is identical to the hypothetical market price under perfect competition.25 One obvious consequence is that prices in non-​competitive markets are unfair if the party who has monopolistic power exercises it. A similar analysis applies to the capitalist, who purchases labour. On this view, exploitation presupposes that the exploiter fails to pay the exploitee the perfectly competitive price for a product or service. In a non-​competitive market, says Wertheimer, A has a threat advantage over B when A stands to lose less if the agreement is 18  Joan Robinson, The Economics of Imperfect Competition (Macmillan 1946); Edward Hastings Chamberlin, The Theory of Monopolistic Competition (Harvard University Press 1950). 19  Chamberlin (n 18) 182; Robinson (n 18) 281–​300. Robinson lamentably endorsed years later the communist experiments in the Soviet Union and China. 20  Arthur Cecil Pigou, The Economics of Welfare (Macmillan 1932) 553–​4. 21  Robinson (n 18) 282. 22 ibid. 23  ibid 292–​300; see especially 295 and 299. 24  Wertheimer (n 16) ch 7. 25  ibid  230–​1.

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not reached.26 A’s gaining less utility than B from the bargaining is what gives A leverage over B. In a perfectly competitive market the threat advantage of A is zero, as there is an infinite number of alternative sellers of his product or service. As the number of sellers approximates one, and so the degree of competitiveness approximates zero, A’s threat advantage varies directly with the level of opportunity costs of B. In such situations, A can fix an unfair price. Justifications of labour law based on unequal bargaining power are useful but incomplete. Unequal bargaining power is a local phenomenon, for markets exhibit various degrees of competitiveness. It is not a systemic aspect. In practice, both employers and employees have varying degrees of market power. Unequal bargaining power held by the employer gives him obvious leverage against the employee, but this seems to be only part of the picture. Is labour exploitation systemic in labour markets that are competitive, though not perfectly competitive?

4.  Exploitation as Advantageous Utilisation of the Vulnerable Robert Goodin argues that exploitation is a violation of the moral requirement to protect the vulnerable. Given the structure of socio-​economic relations in our society, some people’s interests can be strongly affected by our actions. For Goodin, it is towards those people that we have a moral duty of care.27 Moral duties can be classified in general and special duties. General duties do not depend on voluntary actions or particular personal relations. Special duties can flow from self-​assumed obligations or from obligations that derive from vulnerability relations. Goodin defends the latter model of special responsibilities, and he characterises exploitation as the violation of a special duty or responsibility to protect someone else’s interests that arises from the fact that that person is vulnerable to or dependent on our omissions or acts. Exploitation can be performed by omission or commission. Applying these conceptual resources to the wage–​labour relationship, Goodin might say that the worker is especially vulnerable to the capitalist and that the latter exploits the former in failing to pay him the wage that the moral norm of protection of the vulnerable establishes. Goodin gives little indication about the wage rate that special protective responsibilities sanction, but it can be assumed that sweatshops do not discharge their protective responsibility. One problem with Goodin’s analysis is that the difference between the moral position of the employer and that of a bystander vanishes. Suppose that B, the employer, pays A, a sweatshop worker, an annual salary of £3,000, while A needs an annual salary of £10,000 to have a decent standard of living. Presumably B fails to fulfil his special responsibility of protection in relation to A by failing to pay A the extra amount he needs for subsistence (£7,000). Now consider the situation from the vantage point of C, a bystander. Suppose that C might easily give A that extra amount, given his comfortable financial position. Is there any moral contrast between the duty of B and the duty of C? Notice that B’s responsibility arises, according to Goodin, not because of his labour contract but because of the special vulnerability of A and B’s actual possibility to protect A. Since both B and C have special duties in relation to A, and C cannot be said to exploit A in any meaningful sense, Goodin’s account cannot capture the special sense in which B’s behaviour is exploitative towards A, 26  ibid 67. 27  Robert Goodin, ‘Exploiting a Situation and Exploiting a Person’ in Andrew Reeve (ed), Modern Theories of Exploitation (Sage 1987) 166–​200; Robert Goodin, Protecting the Vulnerable (University of Chicago Press 1985); Robert Goodin, Reasons for Welfare (Princeton University Press 1988) 142–​52.

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whereas C’s behaviour is not. In exploiting a worker in a sweatshop, the employer occupies a special position that is different from the position of any third party who might protect the worker by giving him the difference that he needs for his subsistence. Workers’ vulnerability is also the theme in Nicholas Vrousalis’s recent work. Vrousalis explores the concept of domination for self-​enrichment and says that the capitalist exploits the worker in that both are embedded in a systematic relationship in which the capitalist instrumentalises the worker’s economic vulnerability to appropriate the fruits of the worker’s labour.28 Vrousalis holds that there is a conceptual connection between exploitation so defined and the idea of domination. By domination he understands a systematic relationship between A and B in which A takes advantage of his power over B, or the power of a coalition of agents A belongs to, in a way that is disrespectful to B. Since A’s instrumentalisation of B’s economic vulnerability plausibly amounts to A’s taking advantage of his power over B, Vrousalis needs to prove that the capitalist’s advantage taking of the worker—​carried out by instrumentalising the latter’s vulnerability—​is disrespectful to the worker in being aimed at appropriating the fruits of his labour (ie the physical goods he produces). In fact, Vrousalis claims that the conditions of economic exploitation entail that the capitalist takes advantage of his power over the worker in a manner that is disrespectful to the worker.29 However, he says that the connection between capitalist’s instrumentalisation of the worker’s vulnerability and his being disrespectful to the worker ‘is not directly amenable to proof ’.30 At this point Vrousalis invites us to rely on intuitions nurtured by such literary works as Zola’s Germinal or Dickens’s Oliver Twist. Can moral intuitions help to establish a conceptual connection? This is doubtful. I believe that a respectful exploiter is not a conceptual impossibility. Though domination can obviously include a subjective dimension (for instance, humiliation), there can be exploitation without any particular expressive attitude on the part of the exploiter. For instance, the kind of exploitation Marx meant to capture did require economic instrumentalisation of wage workers, but not an expressive attitude of disrespect by the capitalist. Attitudes are expressed by individuals towards other individuals through their voluntary choices, and individual capitalists need not choose to express any demeaning or degrading attitude towards wage workers. According to Marx, if unorganised individual capitalists do not wish to be driven out of business, they have no option but to exploit workers as long as this remains the source of their profits. I imagine that Friedrich Engels could have respectfully said to the workers of his father’s factory in Manchester: ‘It hurts me to pay these wages, but we are forced to do so by the capitalist mode of production; this will cease as soon as our revolutionary efforts will be successful.’ Vrousalis’s domination-​based account raises many questions. To start with, his definition of economic exploitation seems incomplete, for the crucial question of what the fruits of the worker’s labour are is left unanswered. His notion of domination is also shaped in an ad hoc manner. Generally, we want to say that if B is systematically dominated by A, A can (even at his whim) make B do whatever A wants B to do. For the capitalist to possibly exert that kind of domination over workers we should portray the capitalistic mode of production as close to slavery or feudalism. That portrayal is a serious distortion of most labour markets. Nor is it clear what kind of economic power Vrousalis has in mind. He persuasively rejects Roemer’s assimilation of exploitation to distributional inequality.31 But in arguing for that rejection, he seems to return to the classic notion of bargaining advantage. One of his examples is illustrative: A offers to rescue B from a pit only if B signs a sweatshop contract with

28  Nicholas Vrousalis, ‘Exploitation, Vulnerability, and Social Domination’ (2013) Philosophy & Public Affairs 1. 29  ibid  138–​9. 30  ibid 141. 31  ibid 150.

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A.32 Vrousalis says: ‘This exchange is paradigmatic of exploitation: if this is not an instance of exploitation then nothing is.’33 But we do not need a new theory to explain this kind of intuition. This is a clear example of a monopolist (A) abusing his market power to obtain a ridiculous price from his unexpected customer (B). Here power means ‘unequal bargaining power’. Vrousalis contends that ‘the wealth owned by capitalists systematically gives them a decisive bargaining advantage over workers, which means capitalists always have and can take advantage of economic power over workers and never vice versa’.34 Unfortunately, it is no longer clear how Vrousalis understands ‘bargaining advantage’. To have an idea of the kind of problems that he gets around, consider that the owners of restaurants in San Diego might collectively prevent me from dining out by charging exorbitant prices. But even though the owners of restaurants in San Diego might be considered wealthy, my social power concerning dining out would be very significant as long as restaurateurs remained unorganised (despite their membership within a potential ‘coalition’). For there is no bargaining advantage that restaurateurs can wield against my choices, as high competition removes any market power that they might derive from the differentiation of their services and products. By the same token, the unequal distribution of external resources does not mean that capitalists under conditions of high competition have a greater bargaining advantage in purchasing labour. Patrons’ power to choose where to dine out is not (seriously) limited by the fact that owners of restaurants are often wealthier than patrons. Why should the position of workers be any different? Individual choices reflect relative gains and losses as measured from a certain point of reference (for instance, present wealth). Absolute levels of wealth are independent from the structure of the relevant market. Do philosophers really go beyond the monopolistic nature of the relevant market in order to analyse the concept of wrongful exploitation? Mikhail Valdman wants to introduce a new element by considering the absolute extent of the opportunity costs that the exploitee would incur if he declined the exploiter’s offer; that is, in the case of non-​transaction, as we shall call it. Valdman says that in standard cases of exploitation the monopolist wrongs the consumer relative to a counterfactual non-​transaction baseline in which the latter is not subject to unacceptable costs.35 In Valdman’s Antidote case, B has been bitten by a poisonous snake in a forest and A is the monopolist who offers B the only available antidote for an exorbitant price. Although monopolistic extraction of rent does not necessarily count as wrongful exploitation for Valdman, in the Antidote case he says that A wrongly exploits B because B is in no position to refuse A’s offer. In other words, B’s costs if he forgoes the transaction with A (ie B’s ‘non-​transaction costs’) are unacceptable. For Valdman, wrongful exploitation is not the violation of a general moral obligation to assist or protect the vulnerable, but a more specific moral duty not to extract excessive benefits from people who cannot reasonably refuse one’s offers. I think that this is a smart move. Labour exploitation does not necessarily involve failing to help vulnerable or needy workers (though this failure surely exacerbates its moral seriousness). Suppose a computer scientist, Alfred, is paid in Argentina a high but still exploitative salary by a labour monopsonist software corporation that sells its products in the North-​American market. Whereas the corporation certainly exploits Alfred, neither the corporation nor any other party has a moral duty to aid him as his exploitative salary is still more than enough to sustain a good living standard. The corporation has just a moral duty not to exploit Alfred.

32  ibid 148. 33  ibid 149. 34  ibid 137 (emphasis added). 35  Mikhail Valdman, ‘A Theory of Wrongful Exploitation’ (2009) Philosophers’ Imprint 9.

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It is useful to underline what we may call the tripolar nature of exploitation. An exploitative transaction has, so to speak, three poles: the exploiter’s market power, the exploitee’s need, vulnerability, or pressure, and the former’s appropriation of value from the latter. Thus, it is not only the quasi-​monopsonist power of the businessman who runs the sweatshop that explains the exploitative character of the labour transaction. Another element, emphasised by Valdman, is the fact that the sweatshop worker has to accept a wage rate that she would be free to refuse in a hypothetical baseline in which she has an alternative means to sustain herself. Valdman tries to modify Wertheimer’s proposal.36 Unlike Wertheimer, Valdman sees the exploitative situation from the viewpoint of the consumer as well. Thus he defines a ‘non-​exploitative price’ as ‘one that an informed buyer would get from an informed seller in a competitive market if either could reasonably refuse the other’s offer’.37 Is this notion different from Wertheimer’s ‘counterfactual competitive price’? Under perfect competition, any offer is (reasonably) refusable. Therefore, any competitive price is also a ‘non-​exploitative price’ in Valdman’s sense. But even if the relevant market is non-​ competitive, an offer might be (reasonably) refusable. In other words, a non-​competitive price might be ‘non-​exploitative’ in Valdman’s sense. He gives the example of Steve, a stamp collector who agrees to pay to a monopolist (say, Royal Mail) an exorbitant price for a new and rare stamp.38 He suggests that, although the price is non-​competitive, it is non-​ exploitative because Steve could well decline the offer. The non-​transaction situation must be an unacceptable one for the monopolist to exploit the exploitee. In sweatshops cases both elements are present. On the one hand, owners of sweatshops generally are quasi-​ monopsonist buyers of immigrant labour or of local labour in third world countries. On the other hand, the alternative non-​transaction situation is one in which wage workers just starve because of the lack of employment and social welfare alternatives. I think that Valdman has been misled by typical examples of wrongful exploitation, and that ‘unacceptability of absolute non-​transaction costs’ is not a necessary trait of wrongful exploitation. To illustrate this point, consider again the case of Alfred. He is exploited by the software corporation because under perfect competition, where an infinitely great number of buyers demanded his labour, his wage would be much higher still. However, we assume that if Alfred refused the corporation’s offer, his non-​transaction baseline would not be unacceptable in absolute terms. For instance, if Alfred preferred a lower non-​exploitative compensation to a higher exploitative wage, he might become self-​employed, or he might be prepared to take a lower skilled job. Though unacceptability of absolute non-​transaction costs is not a necessary condition of exploitation, it seems reasonable to say that relative or marginal non-​transactions costs (ie the welfare difference between Alfred accepting and declining the job offer) must be significant for exploitation to take place. In fact, we want to say that if Alfred accepts the corporation’s offer, he is being wrongfully exploited (though consensually and beneficially).

5.  The Risk Theory of Capitalist Exploitation Marx’s insight was that the capitalistic mode of production embodies a pervasive exploitative trait that works to the benefit of capitalists and to the detriment of the labouring class. When the labour theory of value was jettisoned from economic theory and replaced by the 36  ibid 12. I  think that Valdman mischaracterises Wertheimer’s baseline. For Wertheimer, the baseline for determining exploitative prices is a counterfactual competitive market, not a counterfactual situation ‘where the bargainers are unpressured’. 37  ibid 12. 38  ibid 10.

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marginalist analysis, that systemic approach to capitalist exploitation simply lost its foundational resource. The neoclassical paradigm maintains that a plurality of factors can make labour markets non-​competitive. Economists now study the various frictions that reduce competitiveness in labour markets.39 However, I will retain the systemic approach by contending that there is one systemic property of capitalism that makes unregulated wages unfair. I call this systemic property risk asymmetry and I suggest that it allows the capitalist to extract a surplus from the wage worker. This is the core of my risk theory of capitalistic exploitation, whose four building blocks I proceed to explain.

(a) Division of labour and specialisation Since Plato, social theorists have appreciated the contribution of division of labour to social progress. But it was Adam Smith who argued that division of labour is a central and systemic feature of industrialisation. It is worth reading what kind of situation led Smith to think that division of labour is a systemic aspect of industrial capitalism: One man draws out the wire, another straights it, a third cuts it, a fourth points it, a fifth grinds it at the top for receiving the head; to make the head requires two or three distinct operations; to put it on, is a peculiar business, to whiten the pins is another; it is even a trade by itself to put them into the paper; and the important business of making a pin is, in this manner, divided into about eighteen distinct operations, which, in some manufactories, are all performed by distinct hands, though in others the same man will sometimes perform two or three of them.40

Like Smith and other classic economists, Marx was well aware that capitalism enhances productivity and efficiency by dividing complex tasks in simpler, homogenous, and mechanical operations that can be performed by wage workers. Marx realised that division of labour and specialisation as hinted at by Plato are quite different from the kind of division of labour that was born with the Industrial Revolution. Division of labour in society requires professional specialisation of independent labourers each of whom produces commodities. According to Marx, this fact explains the bonds between the labours of the cattle-​breeder, the tanner, and the shoemaker. By contrast, division of labour in manufacture is characterised by the fact that each labourer in the workshop produces no commodities on his own.41 Whereas social division of labour is a universal feature of social organisation, industrial division of labour is an aspect of the capitalist mode of production: While division of labour in society at large, whether such division be brought about or not by exchange of commodities, is common to economical formations of society the most diverse, division of labour in the workshop, as practised by manufacture, is a special creation of the capitalist mode of production alone.42

While division of labour is indispensable in any progressive social and economic system, it has problematic side effects from a human rights perspective (inequality, alienation, exploitation, and so on). Unlike product differentiation, social division of labour, and professional specialisation, division of labour in manufacture does not necessarily give the worker greater market power. This is paradoxical, as we are educated to think that differentiation is associated with monopolistic power. How can greater labour differentiation be 39  See eg Dale T Mortensen and Christopher A Pissarides, Job Matching, Wage Dispersion, and Unemployment (Konstantinos Tatsiramos and Klaus F Zimmermann eds, OUP 2011). 40  Adam Smith, An Enquiry into the Nature and Causes of the Wealth of Nations (RH Campbell and AS Skinner eds, Liberty Fund 1981) 15. 41  Marx (n 2) 348. 42  ibid 353.

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associated with greater competition in labour supply, and, therefore, with workers’ weaker bargaining power? The answer is that the simpler and more homogenous an industrial task becomes, the greater the number of potential substitutable workers. This means that increasing unskilled specificity leads to decreasing market power by workers. The word ‘specialisation’ is ambiguous, with two opposite meanings in this context. It may mean ‘high-​skilled specialisation’ and ‘low-​skilled specialisation’. While the specialisation of a neurosurgeon belongs to the former type and carries increasing market power by the labourer, the specialisation of an assembly line worker instantiates the second type and is correlated with increasing market power by the capitalist. Division of labour in manufacture is constructed by capitalism, as Marx pointed out, and, unlike social division of labour, this kind of labour division generally diminishes the bargaining power of labourers. Labour specificity is encouraged by a parallel process as well. Gary Becker has emphasised that firms can pay on-​the-​job specific training, but not general training. Whereas general training tends to increase the marginal productivity of workers in any firm, specific training increases productivity especially in the training firm.43 Since specific training is subsidised by the employer and is often compulsory, workers often develop firm-​specific skills, that is, capabilities that cannot be transferred or can only be transferred with a loss of productivity to other firms. This phenomenon gives a certain monopsony power to the employer, as the worker knows that rehiring will cause a loss of his productivity and, hence, a wage reduction. Firms will maximise the utility derived from their training investments, and, therefore, they will concentrate those investments in forms of training that have little chance to augment workers’ bargaining power because they have also little chance to diversify workers’ options in the labour market.

(b) Transaction costs and full-​time/​wage employment As division of labour makes industrial works more specific and differentiated, the method of contracting out different workers for those tasks becomes too costly for both labour sellers and buyers. Thus, division of labour is associated with full-​time employment. The causal mechanism between the two phenomena (ie industrial division of labour and wage employment) can be explained by appealing to transaction costs economics. Ronald Coase pioneered the transaction costs account of various fields of law. In his The Nature of the Firm Coase argued that the size of a firm and its degree of outsourcing depend on the level of transaction costs.44 Using the market to purchase labour involves such transaction costs as those related to search and information, bargaining, and the protection of confidential technical and commercial information. Division of labour increases the number of specific tasks that industrial production demands. In turn, as the number of specific tasks rises, the number of market transactions that would be necessary to outsource all those tasks also rises. Since the organisation of the industrial firm presupposes a high degree of labours differentiation, it also makes contracting out of those labours prohibitively costly. On the other hand, Coase also stated that the firm cannot grow indefinitely, for governance and managerial costs may also become very high. The optimal balance between transaction costs and governance and managerial costs determines the size of the firm.

43  Gary Becker, Human Capital (National Bureau of Economic Research 1964) 18–​19. 44  Ronald Coase, ‘The Nature of the Firm’ (1937) 4 Economica 386.

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(c) Abstraction of capital and increasing specificity of labour The accumulation of capital is possible because, by its very nature, capital is abstract. In Marx’s political economy, the difference between money and capital is a functional one. Capital results from the transformation of money, whose original function is to act as a means of exchange, into a means of ‘advancement’ and expansion of money. By means of the circulation of money the capitalist can increment his capital. In this new function, essential to the accumulation of capital, money is (functionally) transformed into capital.45 Unlike capital, labour is not amenable to incremental circulation. However, Marx proposes a twofold distinction of labour: abstract labour and concrete labour. On the one hand all labour is, speaking physiologically, an expenditure of human labour-​power, and in its character of identical abstract human labour, it creates and forms the value of commodities. On the other hand, all labour is the expenditure of human labour-​power in a special form and with a definite aim, and in this, its character of concrete useful labour, it produces use-​values.46

Abstract labour is the quantity of labour value embodied in commodities. According to Marx, this quantity varies with labour time but not with the productive power of labour. Productivity is not a feature of abstract labour but of the concrete form of labour.47 My argument relies on conceptual resources that have some affinity with Marx’s categories. I contend that capital as a means of accumulation is abstract because it is perfectly fungible, while labour in its concrete, special form is not amenable to abstract accumulation. This contrast applies specially to financial capital, rather than to physical capital (machines, equipment, etc). Physical capital is not perfectly fungible and so may be considered the concrete form of capital. Capital (henceforth I mean financial capital) can be expanded and used as a productive factor in any branch or sector of the economy, and can be moved transnationally to diversify investments and increase their returns. Moreover, capitalistic financial and legal engineering has produced a variety of instruments that enable the ownership and control of vast amounts of capital. For instance, securitisation allows the conversion of various forms of concrete capital into the abstract, financial form. In contrast, concrete labour (the only asset a wage labourer has) cannot be expanded and accumulated and its transferability to other firms, branches of manufacture, and nations is strongly limited by a variety of social, economic, and legal impediments. This aspect of capitalism puts industrial labourers in a position of unfair risk bearing—​and hence unfair vulnerability—​that escaped Marx’s scrutiny. This has a historical explanation, as economics and finance only developed the concepts to understand decision-​making under risk during the twentieth century. In Marx’s time the expected utility hypothesis was not at the centre of economic theory. Though Daniel Bernoulli pioneered this hypothesis in 1738, it was only in 1944, with John von Neumann and Oskar Morgenstern’s Theory of Games and Economic Behavior, when economic theory started to study the problem of choice under risk.48 A few years later, in 1952, the account of allocation of financial resources by risk-​averse investors would take its contemporary form. In that year, Harry Markowitz published ‘Portfolio Selection’ in the Journal of Finance and originated portfolio theory.49 Markowitz assumes that capitalists (ie investors) are risk-​averse, which means that given an equal expected return, they will prefer the option that minimises risk. Basically, a capitalist’s best strategy is not to put all his eggs 45  Marx (n 2) 123–​33. 46  ibid 14. 47  ibid 13. 48  John Von Neumann and Oskar Morgenstern, Theory of Games and Economic Behavior (Princeton University Press 1953). 49  Harry M Markowitz, ‘Portfolio Selection’ (1952) 7 Journal of Finance 77.

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in one basket. An investor can spread risk in her portfolio of investments by combining instruments of varying degrees of risk, balancing risk tolerance and return expectations. When capitalists accumulate more capital, they can put their new capital to a diversity of other uses, thus spreading the risk across a larger range of investments. The abstraction of capital (plus other instruments such as the limited liability of corporations) allows capitalists to keep their risks reasonably low according to their various degrees of risk tolerance. Wage workers find themselves in an asymmetric position regarding the bearing of risk on their only asset: concrete labour. Various forms of labour specificity force them to put all their eggs in one basket (eg their actual job). Unlike the investor, who can spread risk in a diversified portfolio, the worker is perversely led to concentrate risk in one concrete set of skills. As already stated, two additional factors exacerbate this problem. First, transaction costs drive firms to employ full-​time workers. Wage working is a joint result of labour differentiation and transaction costs. Secondly, unlike social division of labour, which can be associated with greater market power arising out of service differentiation, industrial division of labour also diminishes the worker’s bargaining power. The joint effect of risk concentration and lesser market power puts the wage worker in an especially ‘vulnerable’ position. Vulnerability must be understood here in a technical sense. The worker’s position is vulnerable in the sense that she bears a disproportionate risk burden that shapes her labour choices to the benefit of capitalists.

(d) Risk aversion with high stakes Though labour is remunerated as abstract labour, its concrete, specific form stands in the way of risk spread. Division of labour as a systemic feature of capitalism drives concrete labour to specific forms that are to some extent ill-​suited for other jobs, or that will likely become obsolete with increasing technical change. Because wage labourers invest all their time, energy, and efforts in performing their specifically assigned task, they have little chance to spread their risk by obtaining off-​the-​job retraining. (I have already said that on-​ the-​job training is likely to be firm-​specific.) This kind of systemic risk concentration creates a condition of risk vulnerability in wage–​labour relations that justifies universal social policies that reduce social risk, such as free retraining, unemployment insurance, workers’ capitalisation, workers’ rights to monitor corporate decisions, and so on.50 The justification for converting a democratic polity into a social insurance association lies in fairness. And fairness considerations also lurk behind labour redistributive institutions. Division of labour is an essential part of a socially useful system of business and capital accumulation. While all citizens share in the benefits of this system, the social risk that arises out of that system is especially concentrated on wage workers. Therefore, it is fair to establish labour policies that mitigate the highly concentrated risk that affects wage workers. Let us recapitulate the main bases of the argument. Whereas the capitalist can freely spread the risk of capital loss by diversifying his investment portfolio, increasing specificity of labour leads the wage worker into a highly concentrated use of his talents and skills. This process puts the worker in a vulnerable position. Consider the case of Jane, who has no other reasonable option than to accept a low-​wage offer to work in a factory. How is her bargaining position to be characterised? We say that her position is weak or vulnerable even if the relevant labour market has a reasonable degree of competitiveness. Since preference-​based exploitation theorists, such as Wertheimer, Vrousalis, and Valdman, fail

50  Isabela Mares, The Politics of Social Risk (CUP 2003).

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to incorporate the idea of risk aversion into their analyses, they are unable to specify the relevant baseline on the basis of which they can determine that Jane’s salary is exploitative. Valdman, for instance, would say that Jane’s wage is exploitative if her non-​transaction position is unacceptable. However, since the labour market is competitive, as a matter of fact Jane can find another job. So if we think that her wage is exploitative, this is not because her non-​transaction position is unacceptable. That is, to conclude that the wage offered to Jane is exploitative we need to compare it with the salary that Jane might get in a counterfactual competitive situation in which Jane is not risk averse. Jane’s potential non-​transaction costs are very high and she lacks an effective way to spread the risk of their eventuation. Therefore, expected non-​transaction costs may also be high even if the likelihood of such costs is low or negligible. My hypothesis is that the odds of being forced to take a downgraded occupation or of (temporary) unemployment, even if low in competitive labour markets, involve such large losses that Jane will behave in a risk-​averse way. Even if we have a competitive labour market, assuming that labourers’ choices are risk-​ neutral is dogmatic. In fact, labourers’ utility functions may well be consistent with those of standard economic agents. Thus, it is unwarranted to assume that workers are risk-​neutral towards the odds of large losses while investors are risk-​averse when they face similar losses. There are numerous lines of research that study various forms in which risky choices deviate from expected utility theory. For instance, prospect theory identifies various cognitive biases that affect choices under risk. These interesting results are obviously relevant for explaining labourers’ choices.51 However, in this chapter I will maintain expected utility theory, instead of adopting more heterodox approaches to choice under risk. The core insight that underlies the risk theory of exploitation can be explained as follows. Accounts of exploitation generally specify a comparison between riskless alternatives: the transaction situation and the non-​transaction situation. They assume that the person subject to exploitation knows for sure what the non-​transaction situation is like. This is a groundless assumption. People are subject to various risks, and a perspicuous account of labour exploitation must accommodate the fact that the options among which a person must choose are not certain but risky. The risk theory of exploitation brings to its ultimate consequences the assumption that labourers’ occupational choices are made under risk, and that wage workers are risk-​averse to unemployment or job downgrading. According to expected utility theory, risk aversion is expressed in terms of a concave utility function. In phenomenological terms, the labourer’s risk aversion to unemployment is his fear for the prospect of unemployment, a sort of fear that a capitalist or investor can control and ultimately avoid by diversification and risk spread.52

(e) Exploitation of workers’ systemic risk aversion As is well known, Milton Friedman and Leonard Savage proposed a utility analysis, later modified by Markowitz, to explain why people buy lottery tickets and insurance policies.53 Workers’ voluntary acceptance of exploitative job offers can be explained by both Friedman–​Savage’s and Markowitz’s hypotheses. I  will use, however, Markowitz’s utility function, which is portrayed in Fig 1. We can imagine that the shape of the curve in Fig 1

51  For a general exposition, see Daniel Kahneman, Thinking, Fast and Slow (Farrar, Straus & Giroux 2011). 52  I have recently studied the implications of risk aversion and risk affinity for moral theory in Horatio Spector, ‘Decisional Nonconsequentialism and the Risk Sensitivity of Obligation’ (2016) 32 Social Philosophy & Policy 91. 53  Milton Friedman and LJ Savage, ‘The Utility Analysis of Choices Involving Risk’ (1948) 56 Journal of Political Economy 279; Harry Markowitz, ‘The Utility of Wealth’ (1952) 60 Journal of Political Economy 154.

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depicts the utility function of John, a low-​income worker. As usual, John’s baseline is his level of present wealth. The utility function for his levels of wealth going upwards is convex immediately above present wealth and then concave. Conversely, the utility function for levels of wealth going downwards (eg for levels of wealth below John’s present level) is concave immediately below present wealth and then convex. The convex segment of the downward curve explains John’s purchasing of an insurance policy that covers large losses, for instance his house catching fire. In fact, John will prefer the certainty of a small loss (the premium) to a small chance of a large loss. U

W

Fig 1  Markowitz’s utility function

I will distinguish between two kinds of premiums: the choice premium and the insurance premium. The choice premium is the minimum difference between an uncertain gain and a smaller sure gain, or between an uncertain loss and a smaller sure loss, that is necessary for an agent to choose the latter. The insurance premium is the amount that a policyholder pays an insurer to obtain coverage for a contingent loss. Of course, every insurance premium presupposes a choice premium, but a choice premium need not allow an insurance premium. Insurance markets only develop for certain spreadable large risks. Suppose now that John must decide whether to accept a job offer with a slightly unsatisfactory wage or continue his time-​consuming search for a better job offer. The same utility function portrayed in Fig 1 is consistent with John’s preference for the sure loss of a higher wage to the low chance of getting no job. Recall that John cannot spread the risk of forgoing a labour contract among a portfolio of occupational options. Therefore, he cannot avoid a heavy loss if he has the ‘unemployment lottery ticket’. (‘Lottery ticket’ here means, of course, a very large loss.) Given that John contributes to enhancing productivity by supplying specific labour, he is unable to spread risk as an investor usually does.

(f) A hypothetical labour market with risk diversification for workers There are various ways in which we can model a situation in which workers are free from their systemic risk concentration. Here I  propose one possible representational device. Imagine that John could diversify his occupational portfolio similarly to capitalists. In a hypothetical world in which John has a diversified occupational portfolio he can spread risk and therefore reduce the size of the potential losses associated with each labour negotiation. As John is exposed to lesser losses in the event of non-​transaction, his bargaining power augments. This process of risk equalization and bargaining strengthening is independent

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from the number of potential alternative buyers of John’s labour power. So we can reduce John’s expected losses by increasing the number of potential buyers of his labour power and lowering their respective market shares (competitiveness) and/​or by hypothetically diversifying his occupational portfolio (risk neutrality). Industrial capitalism structurally blocks the diversification of John’s occupational portfolio to his disadvantage. Diversification of the occupational portfolio has two aspects: labour packet disintegration and client portfolio expansion. The former denotes a worker selling technically diversified fine-​grained units of his labour time to various buyers. Labour packet disintegration operates within the range of technical complexity that a worker could command through training and retraining, given his background level of education, in a hypothetical scenario of widespread occupational diversification. Client portfolio expansion denotes a worker selling his labour power simultaneously to a large number of buyers. Both aspects are inextricably united. In fact, labour packet disintegration allows John to expand his client portfolio from one to various customers, and labour packet disintegration without client portfolio expansion would be useless for John. So I  will understand the phrase ‘diversification of the occupational portfolio’ and its cognates as denoting both aspects. If John has a diversified occupational portfolio, he can spread his risk of unemployment or job downgrading. The definition of exploitation in terms of occupational diversification requires us to imagine a hypothetical world in which John can choose labour offers within a highly diversified occupational portfolio and in which the quantity of labour supply and the levels of productivity and wealth remain unchanged. (Labour regulations are also assumed to remain unchanged.) This hypothetical world is admittedly unrealistic but perhaps no more unrealistic than a possible world with perfect competition or zero transaction costs. In practice, an imaginary social world that includes a style of division of labour consistent with occupational diversification would probably be a poor world, with lesser labour productivity and, hence, lower wages. But we could conceive of a possible world that did not differ from the actual world in terms of wealth and productivity and still had a modality of division of labour that is compatible with labour diversification. We are now well equipped to formulate the risk theory of exploitation. Recall that this account will take into consideration the risk of unemployment (or occupational downgrading) and its bearing on labourers’ choices. Suppose that John wants to sell a total of n units of labour time. We can then define a fair compensation for n as any wage that is equal to or greater than his overall return for n in a similarly competitive hypothetical zero-​transaction costs market in which he sells n units of labour time of similar marginal productivity within a highly diversified occupational portfolio, and in which the quantity of labour supply, the levels of wealth, and other relevant factors remain unchanged. Accordingly, the risk surplus value is defined as the difference between a worker’s expected return under occupational portfolio diversification (risk neutrality) and his actual wage under risk concentration (risk aversion): Risk surplus value = Diversified expected return –​Actual risk concentrated wage Conversely, I will say that John’s wage for n units of labour time is exploitative for any magnitude of risk surplus value greater than 0. More precisely, John’s wage for n units of labour time is exploitative if it is lower than his overall return for n units of labour time of similar marginal productivity in a similarly competitive hypothetical zero-​transaction costs market in which John renders his services within a highly diversified occupational portfolio, and in which the quantity of labour supply, the levels of wealth, and other relevant factors remain unchanged.

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With risk spread John would be subject to a lesser risk and he would be in a reasonable position to negotiate a price for each of his labour time units that reflects a risk-​neutral utility function. Suppose John must choose between two options: (a) a sure wage of £80 and (b) a prolonged job search that offers a 90% chance of getting £200 in a better job and a 10% risk of being unsuccessful in the search and, therefore, having a loss of £1,000, which represents unemployment. According to rational choice theory, John’s second option is a lottery or gamble. If John were risk-​neutral, he would be indifferent between the two options, since both yield the same expected utility. In fact, John’s sure wage in option (a) is 1 × £80, which equals £80. In option (b), under risk neutrality, John’s expected return is (0.9 × 200) + (0.1 × –​1,000), that is, also £80. However, the assumption of risk neutrality in option (b) is unrealistic. In accordance with Markowitz’s utility function (Fig 1), John is naturally risk-​ averse to remaining unemployed (represented by the loss of £1,000), and, therefore, we will assume that his expected return is lower than £80. Thus, he must rationally choose the sure option (ie a wage of £80). Now let us slightly modify the example. The lottery in option (b) is as follows: 90% probability of getting £250 in a better job, and 10% probability of being unsuccessful in the job search and therefore losing £1,000. If John were in a hypothetical world in which he renders his services within a diversified occupational portfolio, he would be risk-​neutral and would then choose the gamble, which yields an expected return of £125 (0.9 × 250 + 0.1 × –​1,000). But John is subject to risk concentration and, therefore, risk-​averse with high stakes. We assume again that John’s expected return from the lottery is lower than £80. On this assumption, John must choose the sure wage of £80. The difference between his expected return under risk neutrality—​that is, his expected return in a hypothetical diversified occupational portfolio (£125), and his actual wage (£80) —​is what I call his risk surplus, which in this example equals £45. John’s wage is exploitative because the risk surplus has a positive number. And any wage equal to or greater than £125 is a risk fair wage. As long as we have a clear notion of a non-​exploitative wage, we can now define the exploitative surplus that the capitalist extracts from John. John accepts a lower wage offer given his risk aversion with high stakes. The difference between his hypothetical non-​ exploitative wage and his actual exploitative wage is what I have called risk surplus value. Mathematically, the surplus value is equal to a choice premium. John forgoes a choice premium for the sake of greater employment security. According to the risk theory of exploitation, there is a discernible sense in which the job offer John accepts is exploitative. Instead of relying on John’s certain non-​transaction costs in order to establish if his refusal would be reasonably unacceptable, we pick out his expected costs of non-​transaction in accordance with Markowitz’s utility function. Since John is risk-​averse with respect to large losses, his meagre accepted wage is exploitative insofar as the expected costs of his potential refusal would be unreasonably high. Basically, he cannot afford to reject the offer as his risk tolerance to unemployment or occupational downgrading is very low. Our hypothetical market of labourers holding diversified occupational portfolios is similar to an idealised market of independent contractors who sell labour time in a minute-​ by-​minute way.54 Just as a handyman can negotiate the price for his labour time with greater

54  Relying on works by Ernst Jonsson and Rolf Wank, Guy Davidov claims that employees cannot spread their work-​related risks, whereas independent contractors can spread their entrepreneurial risks in different ways. He suggests, in an illuminating way, that this is one of the differences that serve to demarcate the scope of labour law protection. See Guy Davidov, ‘The Three Axes of Employment Relationships: A Characterization of Workers in Need of Protection’ (2002) 52 University of Toronto Law Journal 357, 390–​4.

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bargaining advantage than similarly qualified workers in full-​time jobs, I  assume that a worker who can perfectly diversify his labour risk will enjoy, other things being equal, an even stronger bargaining position vis-​à-​vis real-​world employees. It is important to note that I have introduced the clause ‘other relevant factors remaining unchanged’ within the characterisation of such idealised markets. As usual, the ‘other things being equal’ or ‘ceteris paribus’ clause serves to equalise other potential factors that can alter wage levels. For example, the efficiency wage hypothesis claims that in some real-​world labour markets wages are higher than clearing-​market levels to reduce such costs as those caused by malingering or turnover. I do not pass judgement on these hypotheses in labour economics. Assuming that the identified factors are relevant, my idealised markets of diversified occupational portfolios keep those factors invariant. Similarly, in zero-​hours contracts capitalists often hire labourers at lower wage levels than in standard employment contracts without commitment to minimum working hours. Such real-​world contracts do not meet the conditions of our idealised labour markets, for various reasons. First, background regulatory conditions are often different. Secondly, the quantity of labour supply is increased by allowing new labourers to enter into the labour market (eg retirees, students). Thirdly, labourers do not necessarily sell the total amount of their available labour time, thus remaining subject to risk aversion. Finally, there are other differences associated with efficiency wage theory (eg frictions of labour markets) that can benefit the employee and that are probably not worth enumerating at this point.

6.  Labour Law and the Prevention of Risk Unfairness Since high risk aversion is characteristic of large stakes, labourers are by necessity risk-​ averse, for unemployment represents a very large loss, whose size depends on the structure of the relevant market and the background social welfare institutions. Therefore, they generally are in a weak bargaining position that derives from high expected losses in the event of non-​agreement. Of course, these expected losses increase as the market power of the employer increases. Therefore, wage labourers are forced to accept labour salaries that they would rationally reject if they could spread risks by supplying their labour through a diversified occupational portfolio. The right to fair compensation provides rectification for the choice premium that the wage worker has no rational option but to transfer to the employer. It corrects the unfair risk imbalance between capitalists and labourers. Therefore, its justification lies in a sort of fairness. It is transactional unfairness resulting from a systemic aspect of industrial capitalism rather than injustice in the distribution of resources that animates the right to fair compensation. Some labour law institutions are amenable to an additional but complementary interpretation. Consider a severance package. We can assume that employers will lay off workers if and only if utility maximisation dictates them to do so. In turn, utility maximisation depends on a great diversity of circumstances, many of which are completely outside the control of employers (eg changes in demand, technical innovations, and so on). A severance package might be interpreted as if it turned the choice premium into an insurance premium that covers some of the losses associated with dismissal. Of course, severance pay provisions are not an insurance policy. My point is that we can interpret these provisions as a hypothetical insurance policy. On this interpretation, the choice premium forgone by workers would have the same role as a hypothetical premium insurance voluntarily paid by workers. The conversion of the choice premium into an insurance premium prevents the employer’s unjust enrichment.

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If capitalists enjoy monopoly or monopsony power, and/​or wage workers are subject to risk aversion and concentrated risk, their unjust enrichment derived from the appropriation of workers’ forgone choice premium could be pre-​empted, for instance, by converting that choice premium into a hypothetical insurance premium. Labour legislation would then act as if workers paid employers an insurance premium to obtain protection against dismissal. More generally, the risk theory also casts new light on the point of labour law as a whole. Labour law institutions sometimes act as if their goal were to make up for the risk surplus transferred by capitalists to workers. Capitalists could appropriate the choice premium of workers thereby enjoying a surplus value on top of their deserved profits. Were labour law not to intervene, capitalists could capitalise the burdensome risk setting in which wage workers have been placed by the combined effect of division of labour, increasing substitutability of labour power, and transaction costs efficiency. When capitalists enjoy monopoly and monopsony power, for instance in countries that persecute illegal immigration or in poor, undercapitalised countries with a high unemployment rate, the rectification can be done by picking out the competitive price of the worker’s services. But even if markets are more competitive (though imperfect) and a Pigouvian–​Robinsonian theory of exploitation loses a good deal of its explanatory power, it is still true that workers are generally ignorant about the exact degree of competitiveness of the market and have nonetheless to make risky choices along a utility function that is sensitive to high stakes. Choice under high concentrated risk allows capitalists to appropriate a gratuitous gift within a risk disequilibrium that law must even out in all conscience. In the absence of labour law, the capitalist would appropriate the risk surplus, thus taking advantage of the structurally weak bargaining position of the wage worker derived from his inability to diversify his occupational portfolio. Many institutions in labour law, such as minimum wage laws, collective bargaining, and severance pay and compensation, can be regarded as institutional instruments designed to compensate workers for the risk surplus that they must give up as a result of their risk aversion and risk-​concentrated predicament. This predicament is an outcome of capitalism that benefits everyone but subjects a single group to a special and unfair level of risk.

7. Conclusion The obvious rationale of the right to fair compensation is that it is a form of avoiding exploitation of wage workers. After the rejection of the labour theory of value, this justification became problematic. The Pigou–​Robinson view suggests a notion of exploitation as market power that is consistent with the marginalist theory of wage. However, the plain monopsony or monopoly hypothesis is largely false with respect to many labour markets. True, most labour markets have monopolistic elements, but this falls short of explaining the intuition that industrial workers are exploited even when there are a reasonable number of alternative buyers of their labour power. Contemporary philosophers propose normative accounts of exploitation that supposedly transcend the Pigou–​Robinson analysis. But I think that these accounts merely restate that analysis in moralised jargon, or expand the concept of exploitation to cover any failure to comply with the moral duty to aid. I have explored an alternative view that uses contemporary economic and financial tools but is, to some extent, congenial with Marx’s systematic spirit in dissecting the exploitative elements of capitalism.

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My basic argument is that labour contracts allow transfer of a risk surplus value from risk-​averse workers to capitalists. The risk surplus is equivalent to the difference between a worker’s actual wage and the hypothetical income she could get from a diversified occupational portfolio in which she performed the same amount of labour time but could drastically reduce the impact of risk aversion on her choices through risk spread. That transfer might be understood as exploitative, that is, as a gratuitous gift from the labourer to the employer that the labourer has no option but to consent to. The right to fair compensation is a way of redressing the imbalance or asymmetry in the risk predicaments of capitalists and workers.

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PA RT   I I I WO R K P L AC E D E M O C R AC Y A N D SE L F-​D E T E R M I NAT IO N

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13 The Right to Strike and Contestatory Citizenship Alan Bogg and Cynthia Estlund

Is there a fundamental right to strike? By ‘fundamental right’, we mean a right that legislatures are obliged to protect (say, under a national constitution or a binding international treaty such as the European Convention on Human Rights (ECHR)). In the US, the question of a constitutional right to strike has not been seriously entertained in the courts for many decades; and with strikes at their lowest levels for well over a century, one might wonder whether the question is worth asking. The utility of the strike as a means of squeezing concessions from employers in collective bargaining has been sapped by a confluence of legal, economic, and political forces that seem unlikely to abate. In the US today, strikes are widely seen to be ineffectual at best and ‘suicidal’ at worst. Outside the US, by contrast, the idea of a fundamental right to strike has become a hot topic. Within the last decade, both the European Court of Justice (ECJ) and the European Court of Human Rights (ECtHR) issued controversial rulings on the shape of a fundamental right to strike in jurisdictions subject to their authority.1 In a much-​debated 2016 decision, the Canadian Supreme Court found a constitutional right to strike implicit in its Charter.2 And within the tripartite International Labour Organization (ILO), the Employer Group kicked up a rare public row by expressly challenging the notion that a right to strike is implicit in the freedom of association that is itself a core principle of international labour law.3 In short, the concept of a fundamental right to strike is hotly contested within the industrial democracies and beyond. We are not foolish enough to imagine that a good philosophical argument can quiet these controversies (much less that it could rejuvenate constitutional labour rights in the US courts). It is unlikely that the Employer Group in the ILO is responding to scepticism within its constituency about the philosophical underpinnings of the right to strike. What happens in the world of labour rights is usually a reflection of power dynamics and political moves to press advantages and capitalise on the weakness of opponents. Nevertheless, we think the theoretical basis of the right to strike might benefit from some renewed attention. Broadly speaking, proponents have generally pursued some form of a ‘derivative right’ strategy, arguing that the right to strike is a derivative implication of some widely recognised basic liberty, such as freedom of association or freedom from forced labour. One such argument, which has had some success in Canada and in Europe under the ECtHR, derives a right to strike from a right of collective bargaining, itself usually derived from the freedom of association. Others seek to derive a right to strike directly from the freedom of

1  On the EU and the right to strike, see Case C-​438/​05 International Transport Workers’ Federation, Finnish Seamen’s Union v Viking Line ABP, Viking Line Eesti [2007] ECR I-​10779. On the ECHR and the right to strike, see National Union of Rail, Maritime and Transport Workers v UK App no 31045/​10 (ECtHR, 8 April 2014). 2  Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4. 3  For discussion, see Claire La Hovary, ‘Showdown at the ILO? A  Historical Perspective on the Employers’ Group’s 2012 Challenge to the Right to Strike’ (2013) 42 Industrial Law Journal 338. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 13 © Alan Bogg and Cynthia Estlund 2018. Published 2018 by Oxford University Press.

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association.4 At its most basic level, however, the freedom of association means simply the freedom to do with others whatever one is free to do individually.5 It is not clear how the right to act in association gives rise to a right to engage in specific kinds of collective action, still less a right to strike. Another variant of the ‘derivative right’ strategy, seen in the work of Ruth Ben-​Israel and of James Gray Pope, would link the right to strike to the freedom from forced or compulsory labour.6 That freedom provides a powerful argument against the imposition of penal sanctions or civil injunctive remedies against individual strikers. It does not seem to provide a complete justification for an individual right to strike, however, insofar as the withdrawal of labour in a strike is meant to be temporary; most strikers hope to resume work at the end of the dispute. Nor is it obvious why this basic liberty, standing alone, would protect a collective right to exit. This might seem to offer a counsel of despair at the prospects for a derivative argument, for each of the basic liberties has been considered and found wanting. This problem stems, we think, from the reductive pattern of focusing derivation on one or other of the ‘basic liberties’. For example, in her seminal analysis of the right to strike, Ruth Ben-​Israel explored the possibilities for its derivation from a recognised civil liberty: ‘in this context the freedom to strike was introduced as a complementary freedom either to the freedom from slavery and forced labour, or to the freedom of association’.7 To this we would simply ask, why either/​or? In our view, the best ‘derivative right’ argument for a right to strike rests on a dynamic normative interaction between three basic liberties, rather than on any one of them in isolation.8 For these purposes, we focus on the basic liberties to leave one’s employment, to associate with others, and to express what one thinks. We explore this basic liberties argument using the republican ideal of freedom as non-​domination, as developed in the work of Philip Pettit and other neo-​republican theorists.9 Taking the ‘basic liberties’ cumulatively rather than singly begins to dissolve many puzzles surrounding the right to strike. The expressive dimension of striking may warrant heightened legal protection because of its proximity to republican concerns about involuntary servitude. Collective withdrawals of labour might attract special protection under freedom of association precisely because of their expressive quality. The expressive dimension of a strike might require stronger protections against private reprisals. In this chapter we develop the argument for a fundamental right to strike that rests simultaneously on basic liberties of exit from employment, association, and voice.

4  For a sophisticated argument in this vein, see Sheldon Leader, Freedom of Association: A Study in Labor Law and Political Theory (Yale University Press 1992) ch 11. 5  ibid 23. 6  Ruth Ben-​Israel, International Labour Standards—​The Case of the Freedom to Strike (Kluwer 1988); James Gray Pope, ‘Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude” ’ (2010) 119 Yale Law Journal 1474. 7  Ben-​Israel (n 6) 29. 8  cf Tonia Novitz, International and European Protection of the Right to Strike (OUP 2003) who avoids the reductive trap in her own normative arguments in Part I of the book. 9  Robert S Taylor uses the term ‘neo-​republican’ to describe the tradition of civic republican thought concerned with freedom as non-​domination: Robert S Taylor, Exit Left: Markets and Mobility in Republican Thought (OUP 2017) v. We should also acknowledge the important work of Alex Gourevitch, From Slavery to the Cooperative Commonwealth:  Labor and Republican Liberty in the Nineteenth Century (CUP 2014). We do not focus in this chapter on Gourevitch, for whom the right to strike would seem to occupy a liminal position. Striking fosters the experience of solidarity and the inculcation of civic virtues. It is also a vital instrument in the forging of a new economic order based upon cooperative governance. Yet in Gourevitch’s vision, the strike may be expected to become otiose, once the underlying structures of domination have been swept away.

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1.  The ‘Basic Liberties’ Argument for the Right to Strike On Pettit’s theory of freedom as non-​domination, a citizen’s freedom is compromised where other agents (individual or collective) enjoy a capacity to interfere arbitrarily in her choices. One who is vulnerable to arbitrary interference, and especially where there is a shared awareness of this vulnerability, occupies a shaming and demeaning status, and might resort to strategies of deference or subterfuge in order to placate the powerful. By contrast, republican citizenship is based upon an equal civic status, underpinned by public laws and institutions that impose effective external constraints on arbitrary interference. ‘Freedom . . . requires the capacity to stand eye to eye with your fellow citizens, in a shared awareness that none of you has a power of arbitrary interference over another.’10 According to Pettit, this equal civic status requires the effective public resourcing and protection of ‘basic liberties’ in the relations between private citizens.11 These ‘basic liberties’ consist of those freedoms that are capable of being exercised and enjoyed equally by all citizens. This would require the republican state to entrench such freedoms as ‘the freedom to think what you like’ and ‘the freedom to travel within the society’ as ‘basic liberties’.12 The specification and content of these ‘basic liberties’ is determined through Pettit’s ‘free-​ person heuristic’, or ‘eyeball test’: ‘people should securely enjoy resources and protections to the point where they . . . can look others in the eye without reason for the fear or deference that a power of interference might inspire; they can walk tall and assume the public status, objective and subjective, of being equal in this regard with the best’.13 Among the ‘basic liberties’ that Pettit identifies, three are of particular salience in the employment sphere: the freedom to express what you think; the freedom to associate with those willing to associate with you; and the freedom to change occupation and employment.14 By way of shorthand, we will refer to these as rights of voice, association, and exit; but we will strive to make clear along the way how these ‘basic liberties’ may differ from the meanings others give, for example, to exit and voice. We argue that, taken together, these three basic liberties provide a composite underpinning to a republican right to strike. Before moving to that positive argument, we note that, for labour lawyers, it is a great strength of Pettit’s account of ‘basic liberties’ that it is rooted in a concern to ameliorate private domination between citizens.15 By contrast, standard liberal accounts of freedom focus on state infringement of freedom, and are sceptical of the ‘horizontal’ extension of public rights into the private sphere.16 On Pettit’s republican account, the ‘basic liberties’ demarcate a protected zone of freedoms that must be insulated from arbitrary interference by other private parties.17 In particular, Pettit’s eyeball test leads to the need for ‘special insulation’ of the ‘basic liberties’ within ‘relationships like those of wife and husband, employee and employer, debtor and creditor, where there are often asymmetries of power’.18 10  Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1997) 5. 11  Philip Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP 2012) 75–​107. 12  ibid 103. 13  ibid 84. 14  For an earlier exploration of these republican basic liberties, see Alan Bogg and Cynthia Estlund, ‘Freedom of Association and the Right to Contest: Getting Back to Basics’ in Alan Bogg and Tonia Novitz (eds), Voices at Work: Continuity and Change in the Common Law World (OUP 2014) 141. 15  Contrast Rawls’s approach to ‘basic liberties’ in his liberal theory of justice:  for discussion, see Pettit (n 11) 109–​10. 16  For discussion, see Jean Thomas, Public Rights Private Relations (OUP 2015). 17  That in turn requires public resourcing and legal protections, including ‘infrastructural programmes’ such as universal education and a public regime of property and contract rights—​Pettit (n 11) 110–​12; and ‘insurance programmes’, such as basic income support, public health provision, and legal aid—​ibid 112–​14. 18  ibid 114.

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This would require the republican state to impose legal duties on the stronger party to restrain the arbitrary exercise of private power. In the employment relation, it might include ‘for cause’ dismissal protection, unemployment insurance to resource effective ‘exit’ rights, and ‘legalizing the unionisation of employees and recourse to strike action’.19 In our view, this legalisation of ‘recourse to strike action’ is not simply a safeguard for insulating the employee’s ‘basic liberties’ from private domination: it is itself derived from those ‘basic liberties’. It is nevertheless an attractive feature of Pettit’s theory that power and domination are central to understanding the normative significance of the strike, even where those supporting arguments are mediated through ‘basic liberties’ and the ‘eyeball test’. We think that is a more promising approach to the right to strike than are conventional appeals to the need to achieve ‘equilibrium’ between trade unions and employers.20 This is a point to which we will return. A republican account of the basic liberties takes inspiration from an ideal of ‘contestatory citizenship’21 in which citizens are disposed to work together and form associations, eschew timidity, and contest public and private domination on behalf of themselves and others. In short, the contestatory citizen must be prepared to stand up and look the powerful in the eye, and the republican state must provide the protection and resources to make that possible.

(a) The freedom to leave employment, or ‘exit’ The ‘basic liberty’ to leave one’s employment is vital to neutralising domination in the employment relation. At a minimum that entails freedom from forced labour and a right to quit one’s job. Frank Lovett has highlighted the centrality of exit rights in republican accounts of freedom.22 But we focus here on Robert Taylor’s recent sustained account of ‘exit-​oriented’ republicanism in Exit Left.23 Taylor’s central contention is that an effectively resourced ‘exit right’ is likely to be the most powerful corrective to private domination in domains such as family or employment. Taylor’s ‘exit-​oriented’ republicanism, far from simply repackaging laissez-​faire liberalism, envisages a regime of public support for exit rights to ensure that exit is a credible option even for the most vulnerable workers. The jurisdictions with which we are most familiar fall well short of what would be required for an adequately resourced right to exit. Considering recent republican work on exit, especially by Taylor and by James Gray Pope,24 we can usefully disaggregate the ‘right to exit’ into three more specific rights: the ‘right to change employers’;25 the right to self-​employment; the right to exit the labour market. Starting with ‘the right to change employers’, the ‘eyeball test’ would require the strict scrutiny of lengthy notice periods, restrictive covenants, and visa schemes that impede workers’ movement between employers. The republican state would also be required to take measures to promote job creation and mobility (perhaps including public employment services, vocational training, relocation vouchers, and unemployment insurance);26 19  ibid 115. 20  The classic ‘equilibrium’ argument for the right to strike is set out in PL Davies and Mark Freedland (eds), Kahn-​Freund’s Labour and the Law (3rd edn, Stevens & Sons 1983) 292. 21  Pettit (n 10)  ch 8.  For a discussion of contestation in the sphere of work and labour, see Nien-​hê Hsieh, ‘Rawlsian Justice and Workplace Republicanism’ (2005) 31 Social Theory and Practice 115. 22  Frank Lovett, A General Theory of Domination and Justice (OUP 2010) 53–​4. 23  Taylor (n 9). 24  Pope (n 6). 25  We adopt this terminology from Pope in his account of the prohibition of ‘involuntary servitude’ as a constitutional norm: Pope (n 6) 1531. 26  Many of these resource measures are discussed in Taylor (n 9) ch 3.

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to combat monopsony and collusive practices among employers; and to critically examine the economic effects of labour standards. Where legislated standards are dampening decent job creation, the ‘right to change employers’ might even require some deregulation of employment standards.27 The right to self-​employment would also require positive state action for its effective realisation. For example, Taylor has proposed the provision of ‘capitalist demogrants’ to enable workers ‘the option of exiting employment relationships and becoming capitalists if they choose to do so’.28 We share Pope’s scepticism about the prospects for self-​employment as an exit route from private domination under current labour market conditions. For workers without college degrees and capital, ‘the most likely results of an attempt at self-​ employment would be loss of the current job, exhaustion of savings, failure of the business within a few years, and return to the job market’.29 Demogrants are unlikely to transform those prospects. Finally, Taylor joins with other republicans in supporting the implementation of a ‘universal basic income’ which would resource a right to exit the labour market.30 According to Taylor, this ‘would serve as a firm backstop against employment exploitation, discrimination, and domination by making it possible for workers to exit the labour market entirely’.31 A basic income would better enable workers to choose among subordinated employment, self-​employment, and non-​employment; crucially, it might also allow them to quit their current employment without having a new job in hand. The effective protection of these three aspects of a basic liberty of exit would have a powerful prophylactic effect on private domination in labour markets. According to Taylor, however, exit is all that is needed. In particular, he takes aim at arguments for enhancing workers’ collective ‘voice’ as an alternative strategy for combating employer domination. Taylor argues that affirmative efforts to promote workers’ ‘voice’ through trade unions would augment not only the power of weaker groups of workers facing monopsonistic employers, but also the power of monopolistic unions facing weaker employers.32 This might lead to an overall increase in private domination as opposed to its reduction. We might deal with this problem, says Taylor, by empowering public regulators to determine whether employers’ monopsony or oligopsony power in an industry justifies positive state support for unionisation. But these ‘easy-​to-​abuse discretionary powers’ might create another problem of public domination.33 (This objection seems at odds with Taylor’s support for aggressive use of antitrust laws against trade unions to reduce monopoly power.) It is much more straightforward, says Taylor, to provide effective resourcing for a general right to exit, as opposed to this targeted resourcing for voice. We think that this framing of labour rights is problematic. It treats them as flexible policy levers to minimise overall domination, but fails to acknowledge that some labour rights are basic civic entitlements. For example, Taylor asks, ‘why can’t the direct empowerment of voice supplement, substitute for, or even entirely replace the indirect empowerment exit offers?’34 The answer, says Taylor, is that such empowerment requires expanded regulatory intervention by the state, which may threaten greater overall domination. We think there is a much simpler answer: ‘voice’ cannot provide a substitute for ‘exit’ because ‘exit’ from employment is rooted in a basic liberty, viz freedom from forced labour and involuntary 27  ibid 52. 28  ibid 62 fn 8. 29  Pope (n 6) 1530. 30  Taylor (n 9) 54. Lovett also favours a universal basic income. Pettit has also defended it from a republican perspective: Philip Pettit, ‘A Republican Right to Basic Income?’ (2007) 2 Basic Income Studies 1. 31  Taylor (n 9) 54. 32  ibid  59–​60. 33  ibid 24. 34  ibid 20.

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servitude. But neither can ‘exit’ wholly substitute for ‘voice’, as Taylor would have it; for ‘voice’ is also at some level a basic liberty, viz the freedom of expression. Treating ‘voice’ and ‘exit’ as fungible components of a general policy designed to reduce domination fails to reckon with the ‘basic liberties’ dimensions of ‘voice’ and ‘exit’.35 Certainly, Taylor does not dismiss the importance of voice. According to Taylor, effectively resourced exit provides a potent indirect empowerment of voice.36 We agree. In particular, workers with scarce skills in favourable market conditions can leverage a credible threat of exit into voice, and induce employers to meet their demands or address their complaints. For most workers, however, an individual right of exit alone might relegate them to bouncing around from one crummy job to another.37 On the other hand, exit by a group of ordinary workers is more likely to get the employer’s attention. And if those workers, instead of scattering immediately to the four winds, stick together to publicise their concerns and pressure the employer to address them, then their exit—​noisy, collective, and designedly temporary—​becomes a more effective form of voice. We agree with Taylor that a realistic ability to exit employment is indispensable in limiting employers’ power to dominate employees. That is so in part because a right of exit can amplify workers’ voice in contesting employer power—​whether that is an earnest demand for fair treatment or an exclamatory ‘take this job and shove it’ on the way out.38 However, a right of exit will afford little protection or voice to most workers unless it can be exercised collectively, expressively, and temporarily. Those additional conditions find no support in the right of exit alone, that is, in the freedom from forced labour and the corollary right to quit. In short, we are beginning to see that rights of exit and voice, as well as the right to engage in those activities in concert with others, are all required to protect most workers from employer domination. That is how the basic liberties support a right to strike. In retrieving the right to exit from relative obscurity and repositioning it as a fundamental labour right, Lovett and Taylor have provided a welcome corrective in contemporary debates. But for those who agree with us that the right to leave one’s job is not enough, it is important to recognise that this basic liberty also helps to undergird the composite right to strike. The normative proximity of the strike to the freedom from involuntary servitude also implies that a withdrawal of labour is a distinctive form of resistance to private domination, more deeply rooted in our most basic commitments than, for example, rent strikes or consumer boycotts.39 A  broad prohibition of strikes is generally regarded as a rather momentous step in liberal democracies. Perhaps the echoes of involuntary servitude help us to account for this fact.

35  Similarly, the aggressive application of antitrust principles to trade unions cannot be justified as a way to reduce overall domination, for that would run roughshod over basic liberties of voice and association. Moreover, history will confirm that such a policy, especially if backed by the labour injunction, would confer enormous discretionary powers on the state and its judges, and would surely magnify public domination in labour relations at least as much as would the affirmative protection of voice through trade unions, which Taylor resists on similar grounds. 36  Taylor (n 9) 12–​18. 37  Taylor argues that his framework must be adopted wholesale, not piecemeal; and that its wholesale adoption would afford all workers, even the most vulnerable, a credible exit option. That might be true. Unfortunately, the extent of public resourcing envisaged by Taylor is well-​nigh fanciful under current political circumstances. It is thus important to recognise the real-​world political consequences of the ‘exit is enough’ argument. 38  The authors could not agree on whether Johnny Paycheck or The Dead Kennedys offered the best musical rendering of exit rights. 39  This might suggest some limits on Harry Arthurs’s argument in favour of a ‘law of private resistance’: see Harry Arthurs, ‘Labor Law as the Law of Economic Subordination and Resistance: A Thought Experiment’ (2013) 34 Comparative Labor Law and Policy Journal 585.

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(b) The freedom to associate with those willing to associate with you The leading candidate basic liberty for the derivation of a right to strike is the freedom of association. Its prominence in theoretical accounts of the right to strike no doubt reflects its prominence in constitutional litigation in Canada and Europe. At its core, the freedom of association rests upon the basic normative principle that individuals should be entitled to do collectively what each is at liberty to do individually.40 At a minimum, we think that this encompasses a collective right to cease work, or to exercise the basic liberty of exit in association with others. The key question is how much further the freedom of association might get us to a right to strike. The most common approach in constitutional courts adopts what Leader describes as a strategy of ‘indirect derivation’:41 collective bargaining is a fundamental right, itself derived from the freedom of association; and since collective bargaining depends upon workers’ ability to strike in the event of a bargaining impasse, it follows that the right to strike is its indispensable corollary under freedom of association. Examining this matter from first principles, we do not regard the ‘indirect derivation’ argument as very promising. It begs the question of how the right to collective bargaining is derived from freedom of association. From a republican perspective, the answer is far from straightforward. For example, Pettit argues that ‘basic liberties’ cannot include a right ‘of anyone to determine how others act’;42 and he argues against an understanding of basic liberties that would entrench the rights of existing groups ‘since this would favour those who already happen to have formed such groups and would fail to treat people equally’.43 The upshot of this might be that the right of collective bargaining itself rests upon shaky republican foundations, particularly where it is understood as a right of trade unions that entails a duty of employers to negotiate in good faith. Especially given the waning reach of collective bargaining through established trade union structures in many countries, it is important to determine whether the right to strike can stand on its own feet as a direct implication of basic liberties. Take as an example the strike action in 2017 by New York City taxi drivers to protest President Trump’s executive order discriminating against Muslim entrants to the US.44 There is no connection to collective bargaining, and the individual strikers may even be self-​employed contractors. Its legitimacy would be scarcely comprehensible on the ‘indirect derivation’ argument. Yet from a republican perspective the question of this strike’s legitimacy, at the very least, warrants further enquiry using the basic liberties more directly. A more direct route to derivation might be Sheldon Leader’s ‘symmetry’ argument.45 Following JS Mill, we might say that freedom of association makes its distinctive contribution by blocking the imposition of special legal disabilities on concerted activities simply because they are collective, in circumstances where each individual would be permitted to do the relevant action singly.46 One might ask why this is even necessary; does the

40  This is described by Oliphant as the ‘parallel liberty’ standard. See Benjamin Oliphant, ‘Exiting the Freedom of Association Labyrinth:  Resurrecting the Parallel Liberty Standard Under 2 (D)  and Saving the Freedom to Strike’ (2012) 70 University of Toronto Faculty Law Review 36, 62. See also Brian Langille, ‘The Freedom of Association Mess: How We Got Into It and How We Can Get Out of It’ (2009) 54 McGill Law Journal 177, 185–​8. 41  Sheldon Leader, ‘Can You Derive a Right to Strike from the Right to Freedom of Association?’ (2009–​10) 15 Canadian Labour and Employment Law Journal 271, 273. 42  Pettit (n 11) 94. 43  ibid 95 fn 14. 44 Siobhan Fenton, ‘New  York Taxi Drivers Strike in Protest at Donald Trump’s Muslim Travel Ban’, The Independent (29 January 2017) accessed 19 June 2017. 45  Leader (n 4) 199–​205. 46  ibid 200.

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individual protection not extend to the group in an aggregative way? The answer lies in the inglorious history of common laws on conspiracy and ‘combinations’ in restraint of trade. The freedom of association should also operate as a cautionary break on some tendencies in exit-​oriented republicanism to regard all economic confederacies as noxious threats to free competition and individual exit. The basic republican liberty of freedom of association also creates a protected space for solidaristic ties to develop. Even where labour mobility is encouraged through exit rights, solidarity is indispensable in a republican polity. It supports the civic norms and dispositions of contestatory citizenship in the networks of civil society. Without an engaged republican citizenry, public and private domination will go unchallenged. As Pettit argues, domination cannot be countered by laws alone; those laws must be reinforced by voluntary civic engagement.47 Does ‘symmetry’ provide an underpinning to a right to strike under freedom of association? In English law, for example, the individual striker always commits a repudiatory breach of contract when striking; whereas strike organisers enjoy a statutory immunity in tort for organising strike action. According to Leader, the norm of ‘equal treatment’ calls for aligning the position of the individual striker with that of the strike organiser.48 Strikers should not be burdened in the domain of contract for their individual withdrawals of labour that are privileged in the domain of tort. We are sceptical about the traction of ‘equal treatment’ in the derivation of a right to strike from the basic liberty of freedom of association. It is heavily dependent upon the existing state of positive law as it relates to individual strikers and strike organisers. The positive law can be chaotic and irrational, shaped more by power dynamics in the judicial and political process rather than by rational normative choices. But more fundamentally, equal treatment can be satisfied through levelling up or levelling down. Leader’s argument calls for a levelling up of protections; but that is not required by the equal treatment principle. Equal treatment could also be achieved by withdrawing immunities from the tort sphere, bringing the domains of contract and tort into repressive alignment. If the law were to criminalise individual acts of striking along the lines of the old ‘Master and Servant’ legislation, this minimal account of freedom of association would have nothing at all to say. It may be that Leader is expecting too much from freedom of association on its own—​or that he is implicitly relying on other basic liberties to justify his conclusions. We think that he should be explicit. It is our contention that freedom of association operates dynamically with the basic liberties of exit and contestatory expression to provide a composite underpinning to the right to strike. A similar hybrid approach can be seen in this 2015 elaboration of freedom of association under the Canadian Charter by the Supreme Court of Canada: In summary, s. 2 (d), viewed purposively, protects three classes of activities: (1) the right to join with others and form associations; (2) the right to join with others in the pursuit of other constitutional rights; and (3) the right to join with others to meet on more equal terms the power and strength of other groups or entities.49

We regard this three-​tier framework for freedom of association as compelling from a republican perspective, and compatible with our argument for a right to strike. The first tier of basic protection extends to a wide range of associational choices, reflecting the myriad reasons that citizens have for forging social relationships in diverse contexts. This is in keeping with Langille’s view that ‘freedom of association is just the freedom 47  Pettit (n 10) ch 8. 48  Leader (n 43) 282. 49  Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1, para 66.

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to associate’ for any lawful purpose, allowing citizens to realise their social natures whether they choose to associate in book clubs, sporting activities, church bell ringing, neighbourhood groups, and so forth.50 We might regard this as the freedom of association of ‘everyday life’.51 The second tier of associative freedom demands a more robust set of resources and protections where citizens join together to exercise other constitutional rights. For example, in the human relationships that constitute marriage or religious worship, the constitutionally protected freedom of association converges with the basic liberties of private intimacy and freedom of religion. Similarly, when individuals come together to express shared ideas, grievances, or demands, their expressive associations deserve, and generally enjoy, greater protection. In our view, the strike exemplifies that sort of convergence between the freedom of association and not just one but two other basic liberties: the freedom of expression and the freedom from forced labour. As such, we should regard the strike as a special form of associative activity that warrants elevated protection under the eyeball test. The third tier of associative freedom is specifically focused upon the contestatory dimension of civil society. In Pettit’s account of ‘contestatory citizenship’, non-​domination is more effectively realised in a republic with a strong tradition of civic activism in civil society groups. Concerted action leads to ‘a form of civility which leads [citizens] to work at organizing the group and at articulating shared grievances’.52 The self-​organisation of the marginalised and disempowered renders their voices more audible to the powerful, ensuring that republican norms are responsive to those interests. It also fits with the republican emphasis on vigilance as the price of liberty.53 Organised groups can hold both public and private power to account, which supports the republican state in the minimisation of domination. The eyeball test would call for protection whenever two or more individuals join together for a contestatory purpose, regardless of whether that concerted activity is informal or more formally instituted through an established trade union. Some scholars, with Langille, would regard this as a form of ‘condescension’.54 On this view, the freedom at stake in freedom of association is simply the freedom to do something with others, whether it is to play tiddlywinks together or to protest together. It is not for courts and constitution-​makers to take a stand on which exercises of freedom of association are valuable or inconsequential. That is for citizens to decide for themselves. By contrast, republicanism requires taking a stand on just that question.55 Constitutions do not protect liberty in general. Constitutions protect basic liberties, particular zones of freedom identified as warranting special resourcing and protection. Political speech warrants greater protection than pornography, for example. Similarly, collective exercise of the basic liberties of exit and expression marks the strike as a form of associative activity of momentous importance in republican democracies. One final point: the republican freedom of association (like its liberal counterpart) entails a freedom from association, and that suggests a republican basis for a ‘right to refrain’ from collective labour activity, including strikes. That is one of the implications of our analysis that will be controversial among the friends of organised labour. This is a larger topic,

50  Brian Langille, ‘The Condescending Constitution or, The Purpose of Freedom of Association is Freedom of Association’ (2015–​16) 19 Canadian Labour and Employment Law Journal 335. 51  See Nancy L Rosenblum, Good Neighbors: The Democracy of Everyday Life in America (Princeton University Press 2016). 52  Pettit (n 10) 247. 53  ibid 250. 54  Langille (n 52). 55  Rawls, too, recognises a ‘central range of application’ of liberal basic liberties, for some exercises of liberty are especially significant in the constitutional order. See John Rawls, Political Liberalism (Columbia University Press 1996) 297.

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but a few points are critical in the present context: first, individuals should not be compelled to participate in a strike, and should be protected against coercion, such as a threat of physical injury or job loss, by the union or other strikers. That follows from both the nature of freedom of (and from) association and the principle of freedom as non-​domination. At the same time, the union or group should be free to urge participation, short of coercion. That follows from both the freedoms of association and expression. Defining the point at which the freedom to associate treads on an individual’s freedom not to associate in connection with a strike is not easy, neither is it a novel problem. The issues have been rehearsed ad nauseam, for example, in connection with picket-​line misconduct. Our point here is simply that our republican theory of a right to strike, guided by the eyeball test, has the basic analytic tools needed to resolve these conflicts, even if it does not greatly simplify their resolution. Returning to the main point: the basic freedom of association entails a right to join with others in exercising equally basic rights of voice and exit, free from employer reprisals. For most workers most of the time—​that is, workers who lack whatever skills happen to be scarce and in demand under current market conditions—​a basic collective right to strike is an important means of contesting employer power and resisting employer domination.

(c) The freedom of contestatory expression Finally, we think that the right to strike is underpinned by the ‘freedom to express what one thinks’.56 This encompasses a right to contest the employer’s discretionary decision-​making as it bears on the employee’s life at work. This is a workplace-​specific instantiation of the basic liberty to express one’s thoughts. Brian Langille once asked the disarmingly simple question, ‘what is a strike?’57 To this end, he explored what distinguished a group of workers ceasing work in order to go fishing from a group of workers ceasing work in order to protest an injustice. The latter is a strike.58 The former is not. Why? Our own response to this excellent question is that the strike is always expressive, whether or not it is accompanied by picketing or other forms of explicit protest. It is moreover contestatory expression—​a means of underscoring a grievance or a demand. The grievances or demands might concern employer violations of statutory employment rights, environmental protections, or corporate social responsibilities; noxious terms or conditions of employment, inadequate pay, or the abuse of managerial prerogatives; political injustices, as in our NY Taxi Drivers’ example; or the violation of workers’ ‘basic liberties’ by employers. But some grievance or demand lies at the bottom of any strike. We are not the first to suggest a link between striking and the basic liberty of expression; for us, it fills a gap in the conceptual foundations of a right to strike that rests only on the freedom of association and a freedom of exit. The freedom of expression does not alone support a right to strike. As ACL Davies has observed, ‘freedom of expression is not an unlimited right, and the downside of using it as the basis for the right to strike is that striking is one of the more disruptive forms of expression’,59 and accordingly amenable to legal restriction. It is true that the withdrawal of labour may be a disruptive means of protest; but it does not stand on the same plane as, for example, smashing windows. One has an independent right to withdraw one’s labour, or to exit. As we have noted, the right of exit 56  Pettit (n 11) 103. 57  Brian Langille, ‘What Is a Strike?’ (2009–​10) 15 Canadian Labour and Employment Law Journal 355. 58  The fishing question was posed by Chief Justice MacKeigan of Nova Scotia: ibid 358. 59  ACL Davies, Employment Law (Pearson 2015) 459.

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cannot by itself support the right to get one’s job back after the strike; but a hybrid right to express grievances or demands by means of a temporary (and collective) withdrawal of labour can support that right of return. Again, efforts to derive a right to strike from other basic rights falter when they rely solely on one or other of the ‘basic liberties’. The freedom of contestatory expression, in tandem with the basic liberties to exit and to associate, support a hybrid right to strike, including a right to return to work at the end of a strike.

(d) Basic liberties and the right to strike: two objections This ‘basic liberties’ argument presented here might be thought vulnerable to two general objections. The first is based in republican concerns with the impact of the strike weapon in the lives of citizens. For example, Pettit criticises a ‘strategy of reciprocal power’ for securing private non-​domination, under which ‘each achieves non-​domination through having resources sufficient to ensure that every act of interference by another can be effectively resisted’.60 At its worst, says Pettit, this strategy leads to a situation of ‘self-​protection, including pre-​emptive self-​protection’ which will lead everyone to be worse off.61 It would be better for everyone to secure non-​domination through constitutional provision than through the decentralised pursuit of self-​protection.62 Pettit does acknowledge that, as a historical matter, ‘[t]‌he trade union movement almost certainly advanced the non-​domination of workers in the industrial world of the nineteenth century’; and it did so ‘precisely by giving them collective powers with which to confront the powers of employers’.63 Nevertheless, Pettit’s reservations about the ‘reciprocal power’ argument show up in his recurrent concern with the strike as an instrument of domination against small employers or vulnerable consumers.64 It is true that reciprocal power in industrial relations depends for its stability upon mutual forbearance and responsible bargaining behaviour. While this might generate an equilibrium state of industrial détente, it is open to the republican criticism that workers, employers, consumers, and the wider public remain vulnerable to arbitrary interference in an outbreak of industrial hostilities. After all, there is nothing special, in republican terms, with domination experienced by workers, as compared to domination experienced by employers, consumers, or the unemployed. While Pettit expresses ambivalence about the right to strike as a potential instrument of dominating power over weaker groups, ambivalence hardens into hostility in Taylor’s exit-​oriented republicanism. He criticises what is described as a strategy of ‘privatization’, whereby ‘the state encourages (or perhaps just ceases to oppose) the creation of countervailing forms of market power’.65 The empowerment of workers through a legal right to strike is suspect because ‘fighting fire with fire still risks burning all involved’.66 According to Taylor, this counsels a ‘sceptical perspective’ on trade unions and their various rights and privileges.67 It also fortifies him in his view that resourcing exit from private relations is a more appealing republican strategy than the direct promotion of voice or countervailing power. Along similar lines, republican theorists might object that a freedom to strike breaches the essential condition that a ‘basic liberty’ must be ‘co-​satisfying’.68 Where choices are ‘counter-​productive’, ‘harmful’, or ‘over-​empowering’, the universal exercise of such liberties 60  Pettit (n 10) 94. 61  ibid 95. 62 ibid. 63 ibid. 64  Pettit (n 11) 40. See also Philip Pettit, Just Freedom: A Moral Compass for a Complex World (WW Norton 2014) 91. 65  Taylor (n 9) 24. 66 ibid. 67  ibid 60. 68  Pettit (n 11) 98. See, further, Philip Pettit, ‘The Basic Liberties’ in Matthew H Kramer, Claire Grant, Ben Colburn, and Antony Hatzistavrou (eds), The Legacy of HLA Hart: Legal, Political, and Moral Philosophy (OUP 2008) 201.

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cannot be co-​satisfying because some citizens will suffer as a result of the liberty’s exercise.69 Striking arguably runs afoul of all three constraints: It involves the intentional infliction of economic harm; it can be over-​empowering where striking workers wield superior economic power against small employers or vulnerable consumers; and it can lead to a counterproductive spiral into industrial war of all against all. These are all important considerations. Fortunately, the ‘basic liberties’ argument can accommodate these concerns. The ‘basic liberties’ can be subject to ‘rules of order’, guided again by the ‘eyeball test’, that regulate their exercise and ensure their compatibility with the co-​exercisability constraint.70 For example, procedural restrictions on striking such as ballot thresholds or notice requirements might be justified as reasonable ‘rules of industrial order’ that restrict the harmful, over-​powering, and counterproductive use of the right to strike. A ‘basic liberty’ to strike is not an absolute right to strike; it can still be subject to ordering and coordinating public regulation. We believe that this approach keeps faith with Pettit’s republicanism. Although critical of the ‘reciprocal power’ strategy, Pettit recognises trade union action as a legitimate ‘reciprocal-​power strategy within the framework of a constitutional state’.71 This linkage between ‘reciprocal power’ and the ‘constitutional state’ is reflected in our ‘basic liberties’ argument for a right to strike. A second objection concerns the significant degree of variation in the national implementation of strike laws on such matters as the treatment of ‘political’ and ‘secondary’ strikes, the role of ‘peace obligations’ and other waivers, and the degree of legal protection for individual strikers from victimisation, dismissal, and permanent replacement.72 Is this kaleidoscopic variety of strike laws incompatible with the recognition of a fundamental right to strike? Again, we think that this variability can be accommodated within the ‘basic liberties’ framework. As Pettit has argued, the specification of the ‘basic liberties’ will be sensitive to national differences reflecting different historical and constitutional arrangements: the ‘basic liberties’ are a conventional rather than a natural kind.73 Variations are likely to be especially pronounced in the field of collective labour relations with their different histories of trade union struggle and state accommodation. Furthermore, the scheme of ‘basic liberties’ will need to be adjusted over time through adjudication and legislation, so that ‘even societies that begin from the same specification of basic liberties, are likely to come apart in the course of their development’.74 The eyeball test allows us to examine variations of resourcing and protection in different legal regimes, to assess whether the appropriate threshold is met despite those variations. In the next part of this chapter, we examine several facets of strike laws in the US, Canada, and the UK to that end. A collective and temporary withdrawal of labour can be a powerful yet peaceful way to amplify employees’ grievances or demands, one that is supported, like a three-​legged stool, by the three basic liberties of exit, voice, and association. This marks an important advance in the ‘derivative right’ strategy for justifying the right to strike. We think these analytic foundations also suggest that the right to strike has a core, the content of which follows from the three pillars on which it rests. A ‘basic liberties strike’—​that is, a strike in defence of the freedom from forced labour, the right of contestatory expression, the freedom of

69  Pettit (n 11) 99. 70  ibid 101. 71  Pettit (n 10) 95 (emphasis added). 72  Alan Bogg, ‘The Hero’s Journey: Lord Wedderburn and the “Political Constitution” of Labour Law’ (2015) 44 Industrial Law Journal 299, 345–​6. 73  Pettit (n 11) 105. 74  ibid 106, citing Lorenzo Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA (OUP 2007).

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association, and perhaps other basic liberties—​warrants special protection.75 The broader fundamental right to strike that we elaborate here is not unlimited or immune from regulation, but it should be least limited and least regulable when it qualifies as a ‘basic liberties strike’. We sketch a few possible implications of this proposition below.

2.  Some Issues of Scope and Implementation with Reference to US, UK, and Canadian Labour Law In this section we briefly address a few questions about the scope and nature of the fundamental right to strike with illustrations from three Anglo-​American jurisdictions, the UK, the US, and Canada. The objective here is to test the usefulness of our undertaking by identifying some points of convergence and divergence between a fundamental right to strike and positive law—​including aspects of both statutory and constitutional law—​in those three fairly similar jurisdictions. We make no attempt here to systematically work through the doctrinal issues that would arise in any of the three jurisdictions in attempting to establish a basic right to strike as we envision it. But it already seems evident that, to the extent existing legislation falls short, the constitutional pathways for our argument are most clear in Canada, where labour rights under the Charter are already well developed, and most obstructed in the US. The ‘state action’ hurdle blocks most constitutional limits on private power; but even as against state action there is a deeply rooted resistance to constitutionalising labour rights. Labour activity—​even peaceful solidaristic expression—​is often characterised as economic or commercial in nature, and as such subject to broad legislative power. So we hold out little near-​term hope for resolving any conflicts between our fundamental right to strike and US statutory labour law in favour of the former. In the UK, strikes are regulated primarily by statute, although the interpretation of the legislative framework may be informed by human rights norms in the EU and the ECHR. Yet it is still worth observing where US and UK labour law falls short and where it stacks up fairly well against our normative analysis. We see some of both in what follows.

(a) Who has a right to strike? This basic scope question has several dimensions, but we begin with one for which the implications of our analysis are particularly clear and at odds with much positive law: does the right to strike belong to individuals, or does it effectively belong to trade unions as an aspect of collective bargaining? The question is critical throughout the developed world, and especially in the Anglo-​American world, in which union density has been declining for decades. The situation is most dire in the US, where nearly 94% of the private sector workforce and nearly 90% of the workforce overall lack union representation.76 The reasons for union decline are complex and hotly contested, and we will not rehearse them here. But the fact of union decline is inescapable, and it has rightly led labour law scholars and practitioners to explore alternatives to trade unions and collective bargaining as institutional vehicles for worker voice and empowerment. We join that exploratory project by contending for a broader understanding of workers’ basic rights. The basic liberties 75  We are inclined to add to this core the right to strike in protest of discrimination; but the justification for that addition is beyond the scope of the present chapter. 76  Statistics for 2016—​Bureau of Labor Statistics, ‘Union Members Summary’, US Department of Labor (27 January 2017)  accessed 16 October 2017.

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that undergird the fundamental right to strike on our view—​exit, voice, and association—​ are vested in individuals as requisite conditions for freedom from domination. Those basic rights are in no way contingent on the formal institutions of collective bargaining. Accordingly, workers should enjoy a right to withhold their labour power to express and underscore their demands and grievances without regard to the formalities of collective bargaining institutions. This is a rare point to which US labour law offers a model worth emulating: Section 7 of the National Labor Relations Act (NLRA), which is the basic US labour statute governing the private sector, grants a right to engage in ‘concerted activity for . . . mutual aid or protection’; and it grants that right to ‘employees’, including any two or more employees acting together, or even a single employee seeking to promote group action.77 The iconic case is Washington Aluminum, from 1962: several unrepresented workers were fired for walking off the job in protest at cold temperatures; the Supreme Court agreed with the National Labor Relations Board that their work stoppage was ‘concerted activity’ protected by the NLRA, and overturned their discharge.78 By contrast, Canadian labour law statutes protect workers’ concerted activity, and in particular strikes, only when undertaken through a trade union within the institutional channels of collective bargaining established by the statute.79 The relevant UK statute governing trade union activity similarly protects only workers who ‘take[] part, or proposed to take part, in the activities of an independent trade union’.80 One case (not involving a strike) left unprotected a worker who was fired for presenting a petition on health and safety concerns that had been vetted but not explicitly authorised by the union of which he was a member.81 This restriction on the scope of workers’ collective rights is softened by some modest unfair dismissal protections for non-​unionised strikers in UK law.82 In our view, this is one of those historically and institutionally contingent features of positive labour law that should be re-​examined through the conceptual lens developed here. We have previously explained why we believe the freedom of association should protect informal group action as well as trade union action.83 So, too, here: given the pillars underlying the fundamental right to strike—​all of them basic individual entitlements—​the right to strike should not be confined to those who act through a particular institution or collective bargaining structure. It should presumptively extend to unrepresented individuals (like the workers in Washington Aluminum). One need not give up on trade unions and collective bargaining to recognise that workers need the freedom and the ability to contest employer power even if they do not manage (or choose) to form a union. Unions did not invent the strike. It has long been workers’ primary tactic for contesting employer power, and a prelude to more developed forms of collective organisation. Labour power is the one thing that workers have and employers need, and its collective withdrawal provides workers a unique form of leverage within employment relationships. That remains true whether or not the workers have formalised their collectiveness through institutional structures of collective bargaining. Indeed, workers who have not done so are usually more vulnerable and in need of protections, including those entailed by a right to strike.

77  National Labor Relations (Wagner) Act of 2012, § 7, 29 USC § 157 (2012) (NLRWA 2012). 78  National Labor Relations Board v Washington Aluminum Co, 370 US 9 (1962). 79  We are grateful to Professor David Doorey for a very helpful discussion of this point. 80  See Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA 1992), s 152. 81  Chant v Aquaboats Ltd [1978] 3 All ER 102 (EAT). 82  TULRCA 1992, s 237(2)(b), s 238. 83  See Bogg and Estlund (n 14) 141–​62.

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That is not to say that labour lawyers are misguided in seeking to delineate a right to strike that is derivative and supportive of collective bargaining rights. That is how Canadian workers got their fundamental right to strike in the Saskatchewan case.84 Nothing here cuts against other arguments for expanding the right to strike—​especially pragmatic arguments about what is required in a particular society for a well-​functioning industrial relations system. Moreover, organised labour and its allies might have the political power to demand more than first principles alone would compel. To be sure, they might be able to demand more than first principles would permit, for unions pose a threat of domination if they exercise unchecked power over individuals.85 First principles like those we rely on here should constrain the range of permissible political choices for societies that adhere to them (and they do not operate as a one-​way ratchet in favour of collective labour rights); but they do not dictate a single resolution for all such societies. Democracy should have its due. We argue elsewhere that a fundamental right to bargain collectively (though one that is thinner than most modern instantiations of the concept in positive law) can be constructed on the same conceptual foundations as we build on here.86 And one could derive a right to strike as a necessary predicate of meaningful collective bargaining. But we have elucidated a more basic right to strike that is not derivative of or dependent on collective bargaining rights or its particular institutions.87 As we have argued, that does not mean the right is absolute or unlimited. But as a method of amplifying collective demands or grievances, the basic right of a group of workers to temporarily withhold their labour through a strike transcends any particular set of industrial relations institutions. That brings us to a second major scope issue, and a second categorical denial of the right to strike in positive labour law that our analysis renders suspect. Under most national labour laws, only ‘employees’ enjoy a right to strike for shared economic goals; independent contractors do not.88 Indeed, the line between employees and independent contractors has historically marked the line between legitimate concerted labour activity and presumptively prohibited restraint of trade among competitors.89 The sharp dichotomy between employees, equipped with a hard-​won array of legal rights including a right to engage in collective self-​help, and independent contractors, who lack all of those rights, is increasingly troubling as firms become ever more willing and able to meet their labour needs without directly employing workers.90 A leading case in the US involved legal aid lawyers in the District of Columbia, who represented indigent criminal defendants in exchange for fees set by the District.91 Claiming that the fees were too low to enable them to provide an adequate defence, the lawyers 84  Saskatchewan Federation of Labour v Saskatchewan (n 2). 85  eg the kinds of union security agreements prevalent in the US before the 1947 Taft–​Hartley Act—​the ‘closed shop’ and the ‘union shop’—​enabled unions to control individuals’ right to work by excluding or ejecting them from union membership on arbitrary or unfair grounds. The idea of freedom as non-​domination would require protections against union power as well as employer power. 86  See Bogg and Estlund (n 14). 87  Granted, a fundamental right to bargain collectively would defuse some of these concerns, for it would provide critical traction against unwarranted statutory restrictions on collective bargaining rights, as it has done to some degree in Canada. See Ontario (Attorney General) v Fraser, 2011 SCC 20, [2011] 2 SCR 3 (Can). 88  See eg NLRWA 2012; Ontario Labour Relations Act, SO 1995, c 1, Sched A, 1; TULRCA 1992, s 244, where the ‘trade dispute defence’ is confined to disputes between ‘workers and their employer’ (emphasis added). 89  Sanjukta M Paul, ‘The Enduring Ambiguities of Antitrust Liability for Worker Collective Action’ (2016) 47 Loyola University Chicago Law Journal 969; Mark Freedland and Nicola Kountouris, ‘Some Reflections on the “Personal Scope” of Collective Labour Law’ (2017) 46 Industrial Law Journal 52. 90  See generally, David Weil, The Fissured Workplace: Why Work Became so Bad for so Many and What Can Be Done to Improve It (Harvard University Press 2014). This is obviously very relevant to the growth in self-​ employment, including ‘sham’ self-​employment, in the ‘gig economy’. 91  FTC v Superior Court Trial Lawyers Assn, 493 US 411 (1990).

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collectively refused to take new criminal cases to pressure the District to raise their fees. The Federal Trade Commission ruled that the ‘strike’ was an unlawful combination in restraint of trade. As independent contractors, the lawyers found no refuge in the ‘labor exemption’ from antitrust liability, so they turned instead to the First Amendment. But the Supreme Court held that the strike in support of higher pay, despite its political overtones, was a per se violation of antitrust laws and was unprotected by the First Amendment. The Court’s First Amendment ruling suggests some of the hurdles to finding a fundamental right to strike (even for employees) in US constitutional law. But for present purposes the case illustrates a point about strikes by independent contractors: they are not merely unprotected by labour laws; they may be unlawful under antitrust laws. One might resolve tensions between the right to strike and the competition laws by simply deferring to the latter. If the entrenched principles underlying competition law were taken as inherent limitations on the scope of the basic liberty to do with others what one has a right to do as an individual, then that limitation would logically seem to carry over to the composite right to strike that partakes of that basic liberty. Yet it would be a serious mistake to define the scope of fundamental rights by deferring to the existing boundaries of antitrust law. For over a century, until workers won recognition of their right to act in concert, antitrust law and its common law precursors were deployed vigorously against the activities and the very existence of labour unions. A reconceptualisation of workers’ fundamental rights might require another reckoning over the boundaries of the policy favouring competition. It would certainly preclude any blithe elevation of the dictates of competition law over basic associative freedoms. Some jurisdictions have sought to protect some concerted action by non-​employees by creating a third category of ‘dependent contractors’, whose reliance on a single firm renders them dependent (like employees) rather than truly independent. Ontario, acting on a prescient suggestion from Harry Arthurs in the mid-​1960s, was an early adopter.92 ‘Dependent contractors’ in Ontario are entitled to form a union and seek collective bargaining, and may thereby gain the protections of the labour laws for their strikes.93 There are some limited statutory protections for an intermediate category of ‘worker’ in UK law too. A recent proposal in the US would create a similar third category for so-​called ‘independent workers’ who provide services through a technology platform like Uber, and who are said to fall in between the two existing categories.94 The conceptual underpinnings of the ‘dependent contractor’ category resonate with our analysis here, in that they focus attention on the potential for domination of individual workers by ‘organized capital’. Workers who face that structural imbalance of power should enjoy a right to withdraw their labour power in concert with others who are similarly situated. In short, the right to strike that we propose here, grounded as it is in the rights of individuals, cannot necessarily be confined to those whom positive law designates as employees, and casts a shadow over the application of antitrust law to some concerted work stoppages by individuals in support of shared interests. We do not pretend that our analysis neatly resolves the recent skirmishes along the border between the domains of antitrust and labour law; but we do think that the republican eyeball test can provide a useful analytical device for examining those tensions and proposing regulatory solutions that comport with non-​domination.

92  Labour Relations Act, RSO 1995, c 1, Sched A, s 9 (Can). 93 ibid. 94 See Seth Harris and Alan Krueger, ‘A Proposal for Modernizing Labor Laws for Twenty-​First Century Work:  The “Independent Worker” ’, The Hamilton Project (December 2015) accessed 16 October 2017.

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Our analysis would also cast doubt on other categorical prohibitions on strikes by particular groups of employees. Some employees are excluded from statutory labour law schemes (like agricultural workers in both the US and Canada), or covered by separate labour law schemes but banned from striking (like some public employees in all three countries). Neither the basic liberties nor the underlying commitment to non-​domination on which the fundamental right to strike rests are confined to workers in particular categories of employment. Our argument for a right to strike could thus call into question many statutory restrictions on public employee strikes. But the argument is not that the right to strike is absolute; it admits of restrictions, including some that may apply especially to public employees. In particular, strikes that threaten the delivery of essential public services may be restricted, provided there are alternative mechanisms for protecting employees’ freedom from employer domination. We have already seen in the work of Pettit and Taylor a concern to minimise domination wielded by groups of workers against other vulnerable groups. That is roughly the state of public employees’ right to strike in Canada after the Supreme Court’s Saskatchewan decision finding a presumptive constitutional right to strike in support of collective bargaining demands. We have argued for an alternative analytic path to the right to strike. But however one arrives at such a right, the question is how it might be regulated. The Canadian Supreme Court allowed for narrowly tailored exceptions where a strike would interfere with access to essential public services, with the government bearing the burden of justification, including the burden of showing that there was some fair alternative mechanism for resolving collective disputes. In our view, the Saskatchewan court’s qualification of the right to strike is consistent with the conception of a fundamental (but not absolute) right to strike elucidated here. Indeed, our basic normative premises might require some restrictions on the right to strike; workers’ collective denial of essential services might well pose a threat of domination of other citizens who are dependent on those services. Relative to both public agencies and their employees, those citizens might experience conditions of dependence, power imbalance, and the risk of arbitrariness that the state is bound to counter. Even then, however, the workers must have some other means of resisting domination from employers, such as impartial arbitration of their collective grievances and demands. Public employees may be distinct in other ways. In the US, for example, they often play a large role in the election of the public officials who are their ultimate employers. Some US scholars have argued that, as a consequence, public employees do not need the same collective rights as their private sector counterparts. Indeed, they say, to give public employees a right to strike in support of their demands would tilt the scales too far in their favour as against the interest of the public as a whole.95 Translated into republican terms, they might say that, where public employees exercise unique political leverage, enhancing that leverage through a right to strike might threaten domination of others. We think this objection points to a feature of the political context that would properly affect the shape of a right to strike based on the eyeball test. It would seem to bolster our conclusion that strikes can be restricted when they block essential public services; but it is not clear that it extends beyond that point.

95  Harry Wellington and Ralph Winter, ‘The Limits of Collective Bargaining in Public Employment’ (1969) 78 Yale Law Journal 1107, 1123–​5.

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(b) What constitutes an infringement of the ‘right to strike’? At a minimum, to have a right to strike means that an expressive work stoppage cannot generally be enjoined, prohibited, or punished by the state (except in unusual circumstances as discussed earlier). But it means more than that in positive labour law, and rightly so. To have a ‘right to strike’ in our view means that strikers must be protected by law against employer reprisals. The right to strike rests partly on workers’ right to contest employer power, and ultimately on the freedom from domination that is our starting point. Employer reprisals are a direct assertion of employer domination over the employee, and the threat or fear of such reprisals enables the employer to exercise dominant power over workers. The question then becomes: what counts as an employer reprisal against strikers? That question calls upon practical judgement more than analytic precision. We think an employer action should count as a reprisal if it inflicts gratuitous economic harm on strikers—​ that is, more harm than is inherent either in the strike itself or in the employer’s legitimate effort to carry on its business as best as it can. Without pretending that is a bright line, we think it makes easy cases of employer actions such as summary discharge or blacklisting of strikers. It seems equally clear that the refusal to pay workers their wages during a work stoppage should not count as a reprisal, even though workers suffer as a result. Forgoing the wages that come with work is part of what it means to go on strike—​or it seems fair to regard it as such in the case of ordinary economic strikes. (A case might be made for awarding strikers lost wages in the case of a ‘basic liberties’ strike—​one provoked by the employer’s violation of workers’ basic liberties.) Similarly, not all measures by which the employer seeks to continue production in the face of a strike, such as hiring of temporary replacements, should count as reprisals, even if the effect is to undermine the strike and induce workers to give it up. If the employer is merely seeking to continue normal operations, and not exacting punishment or inflicting additional economic pain on strikers, we do not think its actions infringe the workers’ right to strike. In the UK context, striking constitutes a repudiatory breach of contract by the individual striker. This leaves individual strikers generally exposed to actions for damages for breach of contract, even in respect of lawful strikes.96 This has led to calls for a doctrine of contractual suspension as the touchstone of an individual right to strike, and we certainly regard the general availability of contract damages against individual strikers as falling short of the eyeball test. The lockout poses an interesting case. It is sometimes described as the counterpart to a strike, but that is misleading, for the lockout draws on none of the basic liberties that underlie the right to strike outlined here. As a general matter, we think the lockout is neither a per se violation of workers’ basic liberties nor an exercise of employers’ basic liberties; that suggests wide latitude for positive law in its treatment. An important but not especially difficult question concerns the permanent replacement of strikers—​that is, refusal to reinstate them after the strike. Permanent replacement is perilously close to dismissal,97 and is generally prohibited against lawful strikers in Canada and it is likely to be legally problematic in the UK too (and in most developed countries). By contrast, permanent replacement has long and notoriously been permitted in the US as an ‘economic weapon’ against economic strikers (though not against ‘unfair labor practice

96  National Coal Board v Galley [1958] 1 WLR 16 (CA). 97  The formal difference between dismissal and permanent replacement in US labour law is that replaced strikers have a right to recall with their seniority intact in case of a later vacancy. An additional practical difference is that it usually takes a little longer to actually replace employees than to fire them.

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strikers’ protesting employer misconduct).98 The legality of permanent replacements has helped to render the strike virtually extinct in the US. Permanent replacement inflicts economic harm on strikers beyond what inheres in a strike, and usually beyond what is necessary for the employer to continue operations. Unless the employer is unable to continue production with non-​strikers or temporary replacements, we think permanent replacement is fairly construed as a ‘reprisal’ and an infringement of the right to strike.99 Beyond the fraught issue of permanent striker replacements, our understanding of the right to strike, and the bar against reprisals that we think follows from that right, is in tension with the wide scope given to the use of ‘economic weapons’ in US labour law. It is a touchstone of US labour law that both sides have wide latitude to inflict economic pain in pursuit of bargaining objectives. Strikes by their nature inflict economic harm on both sides, and exert pressure towards compromise; and both sides are entitled to take defensive measures to limit the economic harm to their own interests. But the idea of a right to strike that we propose here is inconsistent with permitting employer tactics whose object is to exert pressure and gain bargaining leverage by aggravating the pain of the strike on employees.

(c) Can the fundamental right to strike be waived? If so, then how and by whom? The answer bears on the enforceability of a ‘peace obligation’ or ‘no strike’ agreement of the sort that is common in Anglo-​American jurisdictions. A simple answer would be ‘no’: a fundamental right that is vested in individuals cannot be waived. But we do not think that the very notion of fundamentality implies inalienability. For example, one can waive constitutional due process rights, such as the right to a public trial on criminal charges, in exchange for a lower sentence. One can partially waive the constitutional freedom of expression by entering into a non-​disclosure agreement.100 On the other hand, some individual rights are inalienable, and that is largely true of the freedom from forced labour. Under the Thirteenth Amendment of the US Constitution, for example, one cannot voluntarily submit to a permanent or lengthy term of personal service; even if the agreement were voluntary at formation, its enforcement would entail ‘involuntary servitude’.101 This precept presents a conundrum under some liberal theories of freedom centred on consent, but not under the republican commitment to non-​domination:  one cannot consent to such an egregious condition of domination by another. We might press a bit further along this line of thought given the centrality of the freedom from forced labour in our account of the right to strike. For the common law permits some temporary agreements not to quit employment if both the time period and the terms are reasonable, not oppressive; even then, the contract will not be specifically enforced, and its

98  National Labor Relations Board v Mackay Radio & Telegraph Co, 304 US 33 (1938). 99  In 2016, the NLRB affirmed that use of permanent replacements is unlawful if motivated by a wish to punish strikers or discourage future strikes. See American Baptist Homes, 364 NLRB 13 (2016). An honest enquiry into employer motives would seriously curtail employers’ entitlement to use this ‘big gun’ against strikers. 100  Something like that compromise appears to underlie the US law governing employee covenants not to compete (which indirectly constrain the right to quit). See Cynthia Estlund, ‘Between Rights and Contract: Arbitration Agreements and Non-​Compete Covenants as a Hybrid Form of Employment Law’ (2006) 155 University of Pennsylvania Law Review 379. 101  eg US Const Am XIII § 1; Clyatt v United States, 197 US 207, 215 (1905). For an argument that this overstates the reach of ‘involuntary servitude’ under the Thirteenth Amendment, see Nathan B Oman, ‘Specific Performance and the Thirteenth Amendment’ (2009) 93 Minnesota Law Review 2020.

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breach cannot be criminally punished.102 Anglo-​American law thus crafts a compromise between the freedom to quit and the freedom to contract away one’s future freedom to quit. Without suggesting that ‘is’ implies ‘ought’, the common law treatment of contractual constraints on the individual right to quit begins to suggest the outlines of an analogous compromise regarding waivers of the right to strike:  workers might be allowed to waive their right to strike in the future, though only for a reasonable period and for a reasonable consideration. But it would be a mistake to apply this principle to individual unrepresented workers. It would be too easy for employers to secure such waivers, given their usual position of economic dominance, and too hard to police the provisos. That is, the very conditions of unequal power that the right to strike is supposed to counter would enable employers to routinely nullify that right. Again, this conclusion chafes against a liberal preoccupation with consent and freedom of contract, but it follows logically from the republican theory of freedom as non-​domination. And it happens to be the state of positive labour law in the US: an individual agreement not to strike is void, just like an agreement not to join a union, historically labelled a ‘yellow-​dog contract’ in the US.103 By contrast, a no-​strike clause of a collective bargaining agreement is enforceable in the US; the strike can generally be enjoined, and the strikers can be fired.104 Similar contract-​ based restrictions on the right to strike are also found in Canada (though far less commonly in the UK since collective agreements are generally not legally enforceable).105 Can the enforceability of collective no-​strike agreements be reconciled with the fundamental right to strike elaborated here? If the right to strike were grounded in the right to bargain collectively, as some would have it, then it would be straightforward to defend no-​strike agreements: workers’ bargaining power rests not only on their right to strike but on their unions’ ability to credibly trade away that right for some period of time. That is what induces employers to make concessions to end or avoid a strike. That instrumental and institutional logic does not obviously apply, however, to the ‘basic liberties’ right to strike, which is grounded in the basic entitlements of individual workers. If individuals cannot properly waive their right to strike, then it might seem to follow that unions representing those individuals cannot waive that right on their behalf. We think that reasoning is too simple. Even though the fundamental right to strike is not derived from the right of collective bargaining and does not belong to the collective representative, the facts of collective representation and bargaining are far from incidental to the shape of the right to strike. Workers need the right to act collectively to counter employer domination. When workers gain access to processes of collective bargaining, it is more likely to be empowering than disempowering to allow them to use the right to strike as leverage in that bargaining process, and to trade it for employer concessions.106 The logic of non-​domination thus brings us by a different path to the same place where US and Canadian labour laws have settled: a majority-​supported union can waive the right to

102  On the two competing conceptions of ‘voluntariness’ at work in the doctrine—​as freedom of contract and as freedom from compulsion or oppression—​see Pope (n 6). 103  Norris–​LaGuardia Act of 1932, 29 USC § 103 (1932). 104  Boys Market v Retail Clerks Unions, 398 US 325 (1970). 105  Though see TULRCA 1992, s 180 which sets down certain procedural requirements for valid restrictions on the individual’s freedom to strike to be implemented through collective agreements. 106  Others disagree, and criticise the ability of unions to ‘sell’ their members’ right to strike. See eg Jim Pope, Peter Kellman, and Edward Bruno, ‘The Right to Strike’, Boston Review (22 May 2017) accessed 16 October 2017. We think that, rather than refusing to enforce no-​strike agreements generally, it makes more sense to allow for exceptions to their enforceability in cases of collusion, and to build in safeguards against union collusion by ensuring democratic voice within unions.

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strike for a reasonable period of time as part of a collective bargaining agreement; but unrepresented individuals cannot waive their right to strike. That same logic might not apply, however, to what we have called ‘basic liberties strikes’. Collective waiver of the right to strike over economic matters can be a useful tool in gaining economic concessions, but that quid pro quo does not apply when employers threaten workers’ basic liberties. That may be especially true where strikers are protesting a serious infringement of basic liberties in which their union is somehow complicit. The need for some escape hatch from potentially oppressive or collusive collective agreements follows from the principle of non-​domination: unions can exercise domination over individuals, or join in employer domination, if their power is not appropriately constrained. Though less of a concern now than at the height of union power in the mid-​twentieth century, the potential for union domination or collusion justifies an exception to the general legitimacy of collective no-​strike agreements. (It also justifies other restraints on union power beyond what is relevant here.)

(d) Can the right to strike be limited based on its target or purpose? Not all strikes stem from a dispute with the strikers’ own employer. Some strikes seek to pressure another employer with whom the struck employer does business (secondary strikes), or to support employees elsewhere (sympathy strikes), or to protest government actions (political strikes). Does the right to strike encompass secondary, sympathetic, and political strikes as well as strikes arising out of disputes with the struck employer? These questions have generated a century’s worth of law and commentary in the Anglo-​American jurisdictions, and our answer here is merely suggestive. The right to strike in all these instances is still supported by three pillars—​the freedom from forced labour, the freedom of association, and the general freedom of contestatory expression.107 But such strikes may not implicate the workplace-​specific dimension of the freedom of expression, the right to contest employer power.108 That suggests that secondary strikes, sympathy strikes, and political strikes should still be protected against state action (such as criminal punishment or judicial injunctions against strikers), but not necessarily against employer reprisals. The justification for constraining employer action lies mainly in the essential right of employees to contest employer power—​to amplify demands and underscore grievances against the employer with a collective withdrawal of labour. That justification is arguably missing when a strike is not aimed at any action of the employer. On the other hand, there may be cases in which citizens might have no reasonable alternative means of resisting arbitrary and oppressive state power. In that case, ‘contestatory citizenship’ might entail a full right to strike, protected against employer as well as state reprisals. But the question deserves further consideration than we can give it here.

3. Conclusion Lord Wedderburn once suggested that an analytical focus on the question of a ‘right’ to strike was ‘no more useful today as a contribution to the politics of labour law than a dispute

107  Indeed, the expressive element of political strikes would rank higher on the traditional hierarchy of expressive freedom than an ordinary economic strike. 108  This qualification would not apply if the supposed ‘secondary’ employer is a joint employer with, or ally of, the primary employer. In short, it would still be open to strikers to contend that the target of the strike is an appropriate primary target.

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about the number of shop stewards able to dance on the head of a pin’.109 Perhaps times have changed. Today, at least, we think that the philosophical perspective has great value in exposing muddled thinking and providing a reasoned clarification of the ways forward. What judges and legislators choose to do with that knowledge is a separate and important question. As scholars, we can nevertheless perform a vital role in holding legal and political reasoning to philosophical account. We acknowledge also that labour law scholars often prefer to bring a dose of pragmatism to the regulatory challenges of worker emancipation, evincing a concern for what works in practice, rather than what works in theory. That is all well and good, though any assessment of ‘what works’ should be informed by a rational account of normative values, as a prelude to assessing whether those values are being realised in the real world of work. Historically, the right to strike was a creature of labour law. It was deeply embedded in the existing structures of collective bargaining, devised in an era of mass manufacturing, large vertically integrated employing organisations, standard employment, and national markets. This labour law perspective has had an enduring influence on recent constitutional engagements with the right to strike, treating it as a derivative corollary of the right to collective bargaining. These structures, and the normative cartography that they provide for core labour rights, are ill-​equipped to empower and protect workers in the more fluid, fissured, footloose organisations for which they mostly work today. Workers and their advocates are casting about for new ways to organise and exercise countervailing power and to protect workers from abusive conditions. In the US, candidates include members-​only union representation, worker centres without the powers or the restrictions of ‘labor organizations’, sector-​specific regulation (as in some recent actions affecting fast-​food workers), and local ‘living wage’ laws. The ongoing Fight for Fifteen in the US combines several of those tactics. In the UK and Canada, too, worker advocates who have not hidden their heads in the sand or succumbed to despondency would agree that now is a time for experimentation. Workers need some basic individual entitlements to experiment with seeking new ways of contesting employer power. These organisational challenges are especially acute in the growing ‘informal sector’. One way in which workers and trade unions have sought such entitlements is through constitutional litigation, especially through ‘freedom of association’ guarantees in national and transnational constitutions. Our republican argument provides some important insights into the constitutional road to worker emancipation. We have argued that it is a mistake to think too reductively about the normative foundations of the right to strike. It is a composite right, derivative of the three fundamental basic liberties of exit, association, and voice. It is therefore rooted in a set of individual entitlements, rather than a concern for the institutional rights and privileges of organised labour (though we would expect trade unions to benefit significantly from our republican right to strike). It encompasses a concern to protect and facilitate the contestation of employer power, rather than a narrow instrumental justification in supporting collective bargaining. We recognise the virtues of collective bargaining for those workers lucky enough to benefit from it. Indeed, our republican right to strike provides an important normative base for more developed forms of unionisation and collective bargaining. Yet we do not regard the ‘industrial’ right to strike as basic or fundamental. Given

109  Lord Wedderburn, Employment Rights in Britain and Europe (Lawrence & Wishart 1991) 95.

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its roots in ‘contestatory citizenship’, the republican right to strike would be enjoyed by all those participating in the activity of labour, whether self-​employed, workers in the informal sector, or standard employees. We think that this republican argument provides a radical and progressive foundation for workers to emancipate themselves from structures of arbitrary power.

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14 Trade Unions and Political Equality Martin O’Neill and Stuart White* 1. Introduction Recent years have seen major concerns about the growth of both economic and political inequality in many Euro-​Atlantic countries. The claim that political inequality has increased is often expressed by saying that politics has become more ‘oligarchic’ or ‘post-​democratic’, with policy-​making strongly influenced, more so than in the relatively recent past, by business corporations and the very wealthy.1 At the level of political activism, this is part of what is conveyed by the contrast between the ‘1%’ and the ‘99%’.2 The ‘1%’ is not just an economically privileged group, but a group that is held to have disproportionate political influence. This state of affairs has prompted interest in rethinking democratic political structures, such as interest in direct democracy and/​or in the use of lottery-​like mechanisms (‘sortition’) to select representatives. These proposals tend to focus on political institutions, however, while abstracting from the associational context in which these institutions work. Yet changes in the associational environment—​in particular, the decline of trade unions—​play a central role in influential accounts of how the oligarchic shift, as we might call it, has occurred. The discussion of how to address this shift thus seems somewhat disconnected from discussion of how it emerged. In this chapter, we aim to reconnect the two by revisiting the issue of how trade unions potentially contribute to political equality. We argue that the state’s adoption of a promotive stance towards trade unionism and collective bargaining should be seen, in part, as a feature of a stable democratic polity, one that is more internally resilient to oligarchical pressures. In this way, we argue that basic questions of labour law, which affect trade unions’ formation and operation, need to be viewed from the standpoint of democratic theory and the challenge of preventing a drift of representative institutions towards oligarchy. We proceed as follows. In Section 2 we clarify the oligarchic shift thesis and briefly outline some of the proposals for addressing it by means of changes to the structures of democratic policy-​making. We also draw out the aforementioned disconnection between the

*  The authors are grateful to audiences in Braga, London, Manchester, Newcastle, Paris, and Seoul for valuable discussion both of this material and of some of its precursors. Special thanks for helpful and productive discussion to Gustaf Arrhenius, Juliana Bidadanure, Alan Bogg, Daniel Butt, Jurgen De Wispelaere, Eva Erman, Marc Fleurbaey, Joe Guinan, Angus Hebenton, James Hickson, Louis-​Philippe Hodgson, Stephen Hood, Jiwei Ci, Elizabeth Kahn, Hyunseop Kim, Cécile Laborde, Hélène Landemore, Virginia Mantouvalou, Emily McTernan, Gabriel Monette, Mirjam Müller, John O’Neill, Shin Osawa, Tom Parr, Mathias Risse, Julie Rose, Christian Schemmel, Fabian Schuppert, Jiewuh Song, Nicholas Southwood, Lucas Stanczyk, Andrew Walton, and Laura Valentini. Martin O’Neill would like to record his gratitude to the Independent Social Research Foundation (ISRF) for its generous support in the shape of a Mid-​Career Research Fellowship on ‘Democracy at Work: Power, Voice, and Employment in the 21st Century’. 1  Colin Crouch, Post-​Democracy (Polity Press 2004). 2  Joseph E Stiglitz, ‘Of the 1%, by the 1%, for the 1%’, Vanity Fair (2011) accessed 19 December 2017; Joseph E Stiglitz, The Price of Inequality (WW Norton 2012). Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 14 © Martin O’Neill and Stuart White 2018. Published 2018 by Oxford University Press.

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discussion of what has caused the shift and how we might address it. In Section 3 we then set out some of the ways in which trade unions can be expected to contribute towards political equality and, in this way, help to reverse and prevent oligarchic shifts. We also respond to the objection that unions can be bad for democracy. On this basis we argue, in Section 4, that the democratic state should adopt a promotive stance towards trade unions and collective bargaining. We clarify what the promotive stance involves and respond to some objections to it. Section 5 concludes.

2.  The Oligarchic Shift and the Rethinking of Democracy In the spring of 2014 newspapers and websites in the US and around the world (including the UK) ran a story about a highly quantitative article in an academic political science journal. Headlines were typically of the form: ‘Study finds US is an oligarchy, not a democracy’.3 The reports concerned a paper by Martin Gilens and Benjamin I Page.4 Gilens and Page examine how the likelihood of a policy’s adoption by the US government is affected by the level of support it receives from the average voter (the voter in the middle of the income distribution). They find that once we control for the preferences of the rich (the top 10% of the income distribution) and of organised interest groups, the level of support for a policy by the voter on median income makes no difference to the likelihood of its adoption. Policy is sensitive to the preferences of the better off and of organised interest groups; but apparently not to those of the economically average citizen. (Organised interest groups do not do much to offset this as they are weighted towards business corporations and the better off.) If, however, policy-​making is insensitive to the preferences of the economically average citizen, how can the US really be a democracy? Although these results have been challenged,5 Gilens and Page are not alone in suggesting that the US is, or has become, oligarchic in character. For Jacob Hacker and Paul Pierson, an important ‘smoking gun’ here is the marked difference in the distribution of gains from economic growth in the postwar period (1945–​79) when compared to this distribution in more recent years.6 While in the first period income growth was roughly the same across the income distribution, meaning that everyone was sharing equally in growth, the period since 1979 has seen an extreme concentration of economic growth at the top end of the income distribution. This cannot be plausibly explained by economic changes alone, but reflects policy choices and the political forces that have shaped these choices. According to Hacker and Pierson, a key set of developments, helping to explain the observed change in the distribution of gains from growth, concerns the representation of social interests in the policy-​making process. Business corporations have hugely increased their formal organisation and lobbying efforts since the 1970s. Trade unions have been in decline over the same period. Elected representatives face growing costs in running election campaigns and have

3  See eg ‘Study: US Is an Oligarchy, Not a Democracy’, BBC News (17 April 2014)  accessed 7 August 2017. 4  Martin Gilens and Benjamin I Page, ‘Testing Theories of American Politics:  Elites, Interest Groups, and Average Citizens’ (2014) 12 Perspectives on Politics 564. 5  Omar S Bashir, ‘Testing Inferences about American Politics: A Review of the “Oligarchy” Result’ (2015) 2 Research & Politics 1—​Omar Bashir’s study nevertheless offers some evidence consistent with the oligarchy thesis. Looking at who wins when the preferences of the average citizen and the highest income 10% conflict, he finds that the rich win roughly 50% of the time (at 7). 6  Jacob S Hacker and Paul Pierson, Winner-​Take-​All Politics: How Washington Made the Rich Richer-​and Turned Its Back on the Middle Class (Simon & Schuster 2010).

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therefore become more reliant on those who have the money to help them, tipping them into more reliance on richer voters and business corporations. Hacker and Pierson’s study is consistent with a wider argument presented in a series of works by Colin Crouch.7 Crouch argues that many advanced capitalist nations have become ‘post-​ democratic’ in the past thirty or so years. They retain important democratic features such as universal adult suffrage, open political competition, and expansive rights of free speech. But the effective representation of social interests has narrowed, so that ‘politics and government are increasingly slipping back into the control of privileged elites in the manner of pre-​democratic times . . .’8 Globalisation has enhanced businesses’ bargaining power by increasing their exit options, Crouch argues, while at the same time deindustrialisation has led to union decline and to a weakening of the relationship between unions and parties of the left and centre-​left. These parties have tended to solicit more support from business and have had to become more responsive to them. Alongside these studies, there is no doubt that the last decade has seen the emergence of a form of activism that is centrally motivated by a perceived failure of democracy. In a recent study of what they call ‘subterranean politics’ in Europe, encompassing among other groups Occupy and the Indignados, Mary Kaldor and Sabine Selchow find that a common feature of this politics across the continent is ‘extensive frustration with formal politics as it is currently practised . . . current protests are not so much simply about austerity but about politics’.9 This frustration with ‘politics’ is linked to ‘projects of collective re-​imagining of democracy’.10 Concerns about the alleged oligarchic shift have promoted a rethinking of democracy at the academic level too. One expression of this is interest in more use of direct democracy. Proposals for greater use of direct democracy, for example referendums, feature in the programmes of European Pirate Parties and of Partido X in Spain, a party that emerged out of the Indignados movement.11 Another expression, initially more a focus of the academic literature but with a growing presence in activist thinking, is for the use of random or near-​random selection of representatives. For example, in 2011 in his book on ‘Machiavellian democracy’, John McCormick proposed the creation, in the US context, of a Tribunate, a body of fifty-​one citizens selected at random from the US population for a short term of office, but with politicians and the rich (those in the top 10% of the wealth distribution) excluded from eligibility.12 The Tribunate would have powers to veto decisions by other branches of the US government, to put one proposal a year to a national referendum, and to initiate impeachment proceedings against officials in other government branches. McCormick understands the Tribunate as having an explicitly anti-​oligarchic function: as representing ‘the people’ as distinct from the economic elite and, thereby, as building a stronger sense of popular consciousness in relation to the elite. Meanwhile, Alex Guerrero has argued for the full replacement of elected representation with representative assemblies selected by lot, on the ground

7  Crouch (n 1); Colin Crouch, The Strange Non-​Death of Neo-​Liberalism (Polity Press 2011); Colin Crouch, Making Capitalism Fit for Society (Polity Press 2013). 8  Crouch (n 1) 6. 9  Mary Kaldor and Sabine Selchow, ‘The “Bubbling Up” of Subterranean Politics in Europe’ (2013) 9 Journal of Civil Society 78, 84. 10  ibid 88. 11  See the website of Partido X at https://​partidox.org/​democracia-​y-​punto-​version-​reducida/​ and the website of the Icelandic Pirate Party at http://​www.piratar.is/​policies/​?lang=en. 12  John P McCormick, Machiavellian Democracy (CUP 2011).

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that this ‘lottocratic’ system would be much less vulnerable to elite capture than elected representation.13 Arguments for new political institutions and processes of this kind might or might not have their merits, but it is surely important to consider not only the nature of democratic institutions themselves but the associational environment within which they work. After all, if we return to the research cited earlier on the alleged emergence of the oligarchic shift, we do see an emphasis on the role of associational change. In particular, Hacker and Pierson and Crouch both identify the decline of trade unionism as one factor causing the shift.14 Indeed, inattention to associational factors may lead democratic reformers either to overstate the problems with established forms of representation or to overstate the gains from proposed innovations. Guerrero, for example, argues that electoral representation fails as a device for holding representatives to account because voters are too ignorant of their interests and of what their representatives do.15 But voter ignorance is not a fixed constant of electoral representative democracy. Hacker and Pierson argue that one way the decline of trade unions has contributed to the rise of a ‘winner-​takes-​all’ politics and economy is precisely by weakening the informational basis on which ‘middle class’ citizens approach politics.16 By the same token, it may be that a revival of broad-​ based associations within the US ‘middle class’ would improve things and so mitigate voter ignorance.17 Those proposing a turn to direct democracy might also consider how far this is likely to tackle oligarchy by itself. Who will have the resources to shape agendas for direct democracy and to intervene in debates prior to votes? Will advantage not lie with the rich and with business corporations? A strong civil society able to counteract the power of money is likely to be very important. Hacker and Pierson make this point about the importance of associations with the present US political system in mind, but the point applies more generally: Voters are hardly powerless. But their attention to what government actually does is limited and typically brief. And given the complexity of our political institutions, they can have a devilishly hard time determining whom they should hold accountable when they are discontented. In our fragmented political system, victories without enduring organization are almost always fleeting. To influence the exercise of government authority in a modern democracy generally requires a range of formidable capabilities: the capacity to mobilize resources, coordinate actions with others, develop extensive expertise, focus sustained attention, and operate flexibly across multiple domains of activity. These are the attributes of organizations, not discrete, atomized voters.18

13 Alexander A Guerrero, ‘Against Elections:  The Lottocratic Alternative’ (2014) 42 Philosophy & Public Affairs 135. 14  Unionisation has declined in all OECD countries (with ‘peak’ years ranging from 1960 to 1995). See Jonas Pontusson, ‘Unionization, Inequality and Redistribution’ (2013) 51 British Journal of Industrial Relations 797, 800, table 1. 15  Guerrero (n 13) 140. 16  Hacker and Pierson (n 6) 139–​58. Hacker and Pierson’s talk of the ‘middle class’ can be confusing for their readers in the UK, where the term denotes those in professional and managerial occupations, in the upper parts of the income distribution. Hacker and Pierson’s US-​English use of the term is much broader, including workers on relatively low or moderate incomes. 17  Guerrero goes some way towards acknowledging this point when he says that ‘there are some contexts in which these properties [eg voter ignorance] might not obtain’, in which ‘an electoral representative system might fare better’ Guerrero (n 13) 153–​4. 18  Hacker and Pierson (n 6) 113.

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With Hacker and Pierson’s general point in mind, we intend now to explore the contribution that trade unions in particular might make to reversing and/​or preventing the oligarchic shift.19

3.  Trade Unions and Political Equality There is considerable evidence that organised labour, including trade unionism, plays an important causal role in the replacement of authoritarian with democratic regimes.20 Within democratic politics itself, there are a number of ways in which trade unions can affect the relationships of informal power within which politics takes place. As well as representing their members within the workplace, trade unions can provide a much wider form of ‘countervailing power’ to the rich and business corporations.21 This role can be achieved by a number of discrete, but sometimes intertwined and interacting, mechanisms. We here describe several such mechanisms:  (a) increasing political participation; (b)  improving voter information; (c) cultivating democratic character; (d) contributing to cementing partisan alliances and building social trust within political parties; (e) widening elite recruitment; and (f) giving direct voice to workers’ interests thereby shaping the terms of political argument. We also briefly comment on (g) possible contributions to coordination of transnational political action and (h) unions’ potential role in shifting control over investment in a more democratic direction. Finally, we respond to a vein of scepticism about unions and democracy.

(a) Unions and political participation ‘Why should we be beggars with the ballot in our hand?’ This line from an old Liberal song conveys a basic truth about the potentially empowering and equalising effects of universal suffrage.22 However, the ballot’s impact will not be felt if it is not exercised, particularly by those who have few other sources of influence. Thus, one way in which trade unions might contribute to the health of democracy is through their impact on participation in democratic institutions and processes, for example on voting in elections. Unions might encourage participation in a range of ways.23 They might foster a sense of efficacy in the workplace that carries over into other areas such as electoral politics (see also Section 5(c) 19  In their response to McCormick’s Tribunate proposal, David Owen and Graham Smith suggest that trade unions might perform the tribunate role. See Owen and Smith, ‘Machiavellian Democratic Innovations:  McCormick’s People’s Tribunate’ (2011) 20 The Good Society 203. 20  See eg Dietrich Rueschemeyer, Evelyne Huber, and John D Stephens, Capitalist Development and Democracy (University of Chicago Press 1992); Evelyne Huber, Dietrich Rueschemeyer, and John D Stephens, ‘The Impact of Economic Development on Democracy’ (1993) 7 Journal of Economic Perspectives 71. According to Huber, Rueschemeyer, and Stephens, at 83: ‘The level of economic development is causally related to the development of political democracy. However, the underlying reason for the connection . . . is that capitalist development transforms the class structure, enlarging the working and middle classes and facilitating their self-​organization, thus making it more difficult for the elites to exclude them politically’ (emphasis added). The rise of trade unions is an important element of what the authors refer to here as the ‘self-​organization’ of the working class. Other variables mediate the impact of working-​class self-​organisation, so that democratisation is not the only or inevitable outcome. 21  John Kenneth Galbraith, American Capitalism:  The Concept of Countervailing Power (Houghton Mifflin 1952); Sidney Verba, Jae-​on Kim, and Norman H Nie, Participation and Political Equality:  A Seven-​Nation Comparison (CUP 1978); see also Wolfgang Streeck and Anke Hassel, ‘Trade Unions as Political Actors’ in John T Addison and Claus Schnabel (eds), International Handbook of Trade Unions (Edward Elgar 2003). 22  The song is ‘The Land’ and featured in the campaigns for land reform initiated by British Liberals in the early twentieth century. 23  Patrick Flavin and Benjamin Radcliff, ‘Labor Union Membership and Voting across Nations’ (2011) 30 Electoral Studies 633, 634–​5.

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below). They might give individuals more information that prompts participation (see also Section 5(b) below). They might give individuals a sense of collective belonging or identity that makes voting more of a benefit in expressive terms.24 They might change what politicians offer at elections so as to engage specific groups. Not least, they can help voters get to the polling station on the day of an election (and help them to register to vote where this is necessary). This effect on participation furthers political equality insofar as it works in particular to raise participation amongst disadvantaged individuals, working against the frequently observed class profile in political participation. That is the theory, but what is the evidence? There is a good deal of evidence that is consistent with these expectations. Aggregate-​level studies have found a statistical association between union density and voting turnout across nations and across time.25 Declining voter turnout across the bulk of Organisation for Economic Co-​operation and Development (OECD) nations is statistically associated with the decline in trade unionism: ‘Overall, those nations that saw a decrease in unionization also saw the greatest average decline in voter turnout.’26 Individual-​level studies have found that union members are more likely to vote than non-​union members.27 There is dispute as to how far this association is causal, such that union membership independently causes higher participation. There is, however, some evidence to support the causal interpretation, at least as part of what is going on.28 There is also some evidence that union effects on political participation are stronger for those with lower educational levels.29 By contrast, one study in 2010 by Aina Gallego finds that strong unions do not improve equality in voting across social classes.30 However, Gallego speculates that this might reflect changes in the profile of workers represented in unions, away from the most disadvantaged groups: while unions might once have mobilised poorer voters so as to narrow class inequalities in voting, they do so to a lesser extent now because they have become less representative of poorer voters. The study thus underscores the importance of looking at which groups of people unions represent and mobilise, and how this might be changed.31

24  Carole J Uhlaner, ‘Rational Turnout: The Neglected Role of Groups’ (1989) 33 American Journal of Political Science 390. 25  Mark Gray and Miki Caul, ‘Declining Voter Turnout in Advanced Industrial Democracies, 1950 to 1997’ (2000) 33 Comparative Political Studies 1091; Benjamin Radcliff and Patricia Davis, ‘Labor Organization and Electoral Participation in Industrial Democracies’ (2000) 44 American Journal of Political Science 132; Pontusson (n 14) 808–​10. 26  Gray and Caul (n 25) 1103. 27  Daryl D’Art and Thomas Turner, ‘Trade Unions and Political Participation in the European Union:  Still Providing a Democratic Dividend?’ (2007) 45 British Journal of Industrial Relations 103; Flavin and Radcliff (n 23); Jasmine Kerrissey and Evan Schofer, ‘Union Membership and Political Participation in the United States’ (2013) 91 Social Forces 895. 28  D’Art and Turner (n 27) 118; Kerrissey and Schofer (n 27) 917–​18. 29  Kerrissey and Schofer (n 27) 909. 30  Aina Gallego, ‘Understanding Unequal Turnout: Education and Voting in Comparative Perspective’ (2010) 29 Electoral Studies 239. 31  In the UK, the class profile of trade unionism has changed substantially in the last sixty years. In the 1960s, a majority of trade union members were ‘working class’ (people in manual jobs with relatively low education). Today, around half of trade unionists in the UK are in the ‘new middle class’ (non-​manual workers with relatively high education levels), and unionisation is actually higher amongst those in the new middle class than in the working class. See Geoffrey Evans and James Tilley, The New Politics of Class: The Political Exclusion of the British Working Class (OUP 2017) 65–​7. The consequences of such changes are discussed in Pontusson (n 14). Pontusson finds that while union decline helps to explain growing inequality in earnings and reduced redistribution in OECD countries in the period from the late 1970s to the mid-​1990s, it is less able to explain these trends after the mid-​ 1990s. He suggests that this may reflect an upward shift in the average position of union members in the income distribution: as unionists have become relatively higher earners, on average, unions have come to exert less compression on wages inequality and less pressure for redistribution.

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Janice Fine’s work on ‘community unions’ in the US focuses on the way new kinds of labour-​and community-​based associations have emerged in response to the limitations of coverage and responsiveness by the mainstream trade union movement.32 Fine’s case studies indicate how, through community-​based campaigns against specific employers or for specific policy measures, these associations can help particularly disadvantaged groups of workers, such as immigrant workers, become political participants: ‘Learning that they could take part in a public confrontation without feeling that they were placing their lives in jeopardy was an important lesson about civic participation in their new home.’33

(b) Unions and political information As we noted earlier, some critics find fault with electoral representative democracy because of voter ignorance. As we also noted, however, levels of voter ignorance need not be taken as a given, and we may respond to it not by rejecting elected representation but instead by seeking to change public awareness of political matters. One possible strategy is to promote an associational culture in which individuals are able to access such ‘political goods’ through secondary associations such as trade unions. Hacker and Pierson suggest that a lack of organisations in the US ‘middle-​class’ weakens the ability of its members to develop an informed sense of economic inequality and what might be done about it.34 Torbern Iversen and David Soskice point out that, contrary to what one might initially expect, ‘polarization’ of voters between left and right is currently negatively correlated in ‘advanced democracies’ with levels of income inequality: high inequality is associated with low voter polarisation (as in the US). Part of their explanation is that high inequality is associated with relatively weak trade unionism which, in turn, contributes to a low level of political information amongst voters which, in turn, leads people to adopt ‘centrist’ political positions.35 This is consistent with Hacker and Pierson’s argument that a lack of union presence leads to a lack of awareness of inequality and what might be done about it.

(c) Unions and democratic character A third potential union contribution, connected to impacts on participation and information, relates to the effects of unions on what we might term democratic character: the willingness and capacity of individuals to engage in democratic politics and to do so in ways that are informed by judgements of the common good. There is a long tradition in political thought that links the structure of authority and decision-​making in the workplace to the general capacity for democratic citizenship, and we need to consider what implications

32  Fine describes community unionism as follows: ‘They are modest-​sized community-​based organizations of low-​wage workers that focus on issues of work and wages in their communities. These organizations are mediating institutions that are based in specific ethnic and geographic communities (as opposed to specific workplaces) that provide support to communities of low-​wage workers, especially immigrants and African Americans’—​Janice Fine, ‘Community Unions and the Revival of the American Labor Movement’ (2005) 33 Politics & Society 153, 154. On the limitations of mainstream unions in responding to the needs of these groups of workers, the resulting tensions between them and community unions, and on how the two might work together more constructively, see also Janice Fine, ‘A Marriage Made in Heaven? Mismatches and Misunderstandings between Worker Centres and Unions’ (2007) 45 British Journal of Industrial Relations 335. 33  Fine, ‘Community Unions and the Revival of the American Labor Movement’ (n 32) 165. 34  Hacker and Pierson (n 6) 151–​8. 35  Torben Iversen and David Soskice, ‘Information, Inequality, and Mass Polarization: Ideology in Advanced Democracies’ (2015) 48 Comparative Political Studies 1781.

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the relationship between participation in workplace decision-​making and broader political participation has as regards the possible effects of trade unions. The argument we have in mind can be traced back to John Stuart Mill and to a wider circle of industrial republicans and democrats in the nineteenth century.36 It runs through the Guild Socialism of GDH Cole to contemporary political theorists such as Carole Pateman and Joshua Cohen.37 In essence, the claim is that an authoritarian workplace will inhibit development of the dispositions and capacities necessary for, or supportive of, democratic citizenship and that, since effective democratic citizenship is highly desirable, workplaces should themselves be democratic: democracy in the workplace will have a positive ‘spillover effect’ on wider political democracy and is desirable for this reason. Cohen develops this as what he terms the ‘psychological support argument’ for workplace democracy: The psychological support argument holds that the extension of self-​government into the traditionally undemocratic sphere of work contributes to both the formation of an active character and to the development of a sense of the common good, and thus contributes to a more fully democratic state. Since capitalist property relations vest final authority in the owners of capital, they limit the extent of intra-​firm democracy, thereby fostering passivity and a narrower base of political judgment. For these reasons, they are not well suited to a democratic society.38

Although this tradition of argument typically aims at establishing grounds for workers’ control over productive enterprises, its relevance to our present discussion seems clear. A strong union presence in a workplace is not equivalent to workers’ control (indeed, it is importantly distinct from it). But nevertheless it can represent a significant form of what Nien-​hê Hsieh terms ‘workplace republicanism’ as union power checks and limits the authority of the employer.39 In this way, one might expect unionisation to have many of the positive effects on democratic character claimed for workplace democracy. In fact, when we turn to the empirical research in this area, one can argue that the case for unions in this respect is stronger than that for workplace democracy. On the one hand, research on the ‘spillover thesis’ from workplace democracy has tended to produce somewhat mixed results. Neil Carter’s review of the research suggests that the impact of workplace democracy on ‘political efficacy’ and political participation depends to a great extent on the specific form of workplace democracy, how it was established, firm size, and on numerous other context-​specific factors.40 On the other hand, the evidence on unions and political participation seems more straightforwardly consistent with the spillover thesis (see Section 3(a) above). Daryl D’Art and Thomas Turner suggest that the observed union effect on participation may be caused partly in the way the psychological support argument suggests:  ‘We argue that, in part, this [union-​based] mobilization emerges from the fact that union membership, in providing employees with an independent voice, functions as

36  John Stuart Mill, Principles of Political Economy, with Some of Their Applications to Social Philosophy, Books IV and V; edited with an introduction by Donald Winch (first published 1848, Penguin 1970) ch 7; Alexander Gourevitch, From Slavery to the Cooperative Commonwealth:  Labor and Republican Liberty in the Nineteenth Century (CUP 2015). 37  GDH Cole, Guild Socialism Re-​Stated (George Allen & Unwin 1920); Carole Pateman, Participation and Democratic Theory (CUP 1970); Joshua Cohen, ‘The Economic Basis of Deliberative Democracy’ (1989) 6 Social Philosophy and Policy 25; see also Martin O’Neill, ‘Three Rawlsian Routes towards Economic Democracy’ (2008) 9 Revue de Philosophie Économique 29. 38  Cohen (n 37) 29. 39  Nien-​hê Hsieh, ‘Rawlsian Justice and Workplace Republicanism’ (2005) 31 Social Theory and Practice 115. 40 Neil Carter, ‘Political Participation and the Workplace:  The Spillover Thesis Revisited’ (2006) 8 British Journal of Politics and International Relations 410.

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a check on autocratic managerial power and creates in employees the sense that they can exercise some control over their working lives.’41 In addition to contributing to democratic character in this way, it is possible of course that unions can also contribute through educative effects on members (or, indeed, indirectly, on non-​members). For example, through campaigns and activities in the workplace, unions might be able to foster greater awareness of and sensitivity to issues of social inclusion and equality, which may have effects beyond the workplace. Consistent with this, one recent study finds that by exposing individuals to issues of just distribution within the workplace, unions affect attitudes towards justice and redistribution in the wider economy: egalitarian objectives in the first sphere support egalitarian attitudes in the second.42

(d) Unions and partisanship Strong and vibrant political parties are a sine qua non for representative democratic politics. The widespread decline of party politics as measured by party membership and the breadth of the electoral choice on offer is a major source of concern about Western democracy.43 But political parties do not come out of nowhere. They depend on a broader background of associations and alliances. Historically, trade unions have often had an essential role in providing organisational structure and various kinds of material support for parties of the left and, in some cases, also for the centre-​right.44 There is thus a natural line of argument that moves from a concern for the associational ecology of political parties to a concern with trade unions as a building block for creating stable and effective parties that represent the interests of working people and offer meaningful electoral choice. Here the issue of the representativeness of so-​called representative democracy is important. As parties of the left and centre-​left have weakened their links to unions and sought stronger connection with voters and funders from social groups outside the working class, they have consequently become less effective at representing the views and interests of some working people. This can create a representational deficit in the polity that manifests in a growth of distrust and alienation, not just in relation to specific parties but towards the political system.45 This is, in essence, the flip-​side of a point suggested earlier (Section 3(a)), that unions can use their influence within parties to shape party platforms in ways that draw the interest and support of working-​class voters.46

(e) Unions and elite recruitment This brings us to a further point: when trade unions have strong connections into the party system they can provide an important means of recruiting individuals into the ‘political elite’. The difference in the class composition of Conservative and Labour UK Cabinets up to 1955 is striking:  while only 3% of Conservative Cabinet members had working-​class

41  D’Art and Turner (n 27) 108. 42 Nadja Mosimann and Jonas Pontusson, ‘Solidaristic Unionism and Support for Redistribution in Contemporary Europe’ (2017) 69 World Politics 448. 43  Peter Mair, Ruling the Void: The Hollowing of Western Democracy (Verso 2013). 44  Streeck and Hassel (n 21) 345–​7. 45  On the UK case, see Evans and Tilley (n 31). 46  See Patrick Flavin, ‘Labor Union Strength and the Equality of Political Representation’ (2016) British Journal of Political Science 1; Tom O’Grady, ‘Careerists Versus Coal-​Miners:  How British MPs’ Social Backgrounds Affect Their Support for Welfare Reform’, Social Science Research Network 2016, SSRN Scholarly Paper ID 2801293  accessed 20 December 2017.

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parents, 55% of Labour Cabinet members did.47 The working-​class character of Labour Cabinets in part reflected the role of unions in recruiting Labour MPs. The union–​party nexus thus helped to make the political elite more inclusive in class terms. This constituted a gain for some in terms of equality of opportunity at the individual level. It also constituted a likely gain in terms of the quality of deliberation and decision-​ making within the legislature and political executive insofar as these were consequently exposed to a wider range of life experiences and perspectives.48 As suggested earlier, it also contributed to making the political system more representative in terms of social interests. The picture has changed a great deal in recent years. There has been a substantial decline in the proportion of Labour MPs from working-​class occupations; a substantial decline in the extent to which voters identify Labour with the ‘working class’; and there is evidence that Labour is no longer seen predominantly as a working-​class party in part because its MPs are less working class than in the past.49 The weakening of the link between unions and party likely has contributed to this dynamic: while ‘around 10 per cent of Labour MPs were previously union officials from the 1950s to the 1980s, by 2015 only 1 per cent of Labour MPs had worked for a trade union’.50

(f) Unions and political voice In addition to influencing policy through their connection to political parties, unions can of course directly intervene in political debates and decision-​making to advance the interests of working people, counterbalancing the influence of business and the very rich. At one level, this is a matter of giving voice to ideas and interests so as to shape the ‘national conversation’ about policy. The interests of capital are quick to organise to project their voice strongly within national debates. Without a countervailing voice, it is unlikely that workers’ interests will get fair consideration within the broader public political culture; and without strong unions such countervailing voices will simply not be sufficiently heard. Extending this point, unions can also obviously play a similarly countervailing role in terms of lobbying and direct campaigning. In her discussion of community unionism in the US, Fine describes how unions working in cooperation with community-​based organisations use direct action campaigns to put pressure on mainstream politicians to adjust their policy platforms in ways that align with workers’ needs and win their political engagement.51 More generally, trade unions can contribute significantly to community organising, joining with other civil society groups such as faith groups to construct powerful local alliances to shape public policy.52 In the UK, for example, union branches have been active in Citizens UK, an alliance of groups that has successfully put the Living Wage on the national agenda.53 Consistent with the claim that unions make a difference to the ‘national conversation’, there is considerable cross-​national evidence that higher levels of unionisation and stronger collective labour rights are associated with different policies and outcomes: lower

47 Martin Burch and Michael Moran, ‘The Changing British Political Elite, 1945–​1983:  MPs and Cabinet Ministers’ (1985) 38 Parliamentary Affairs 1, 15, table 6. 48 See Hélène Landemore, Democratic Reason:  Politics, Collective Intelligence, and the Rule of the Many (Princeton University Press 2013) 97–​104 on the value of social diversity in deliberation. 49  For evidence of these claims, see Evans and Tilley (n 31) 126–​36. 50  ibid 128. 51  Fine, ‘Community Unions and the Revival of the American Labor Movement’ (n 32). 52  Amanda Tattersall, Power in Coalition: Strategies for Strong Unions and Social Change (Cornell University Press 2010); see also Saul D Alinsky, ‘Community Analysis and Organization’ (1941) 46 American Journal of Sociology 797. 53  Lina Jamoul and Jane Wills, ‘Faith in Politics’ (2008) 45 Urban Studies 2035.

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earnings inequality, lower income inequality, more redistribution, and a more expansive ‘decommodifying’ welfare state.54

(g) Unions and international cooperation Two further potential democratising contributions of trade unions may be briefly noted. The first concerns the potential for trade unions to act as organisations to help promote coordinated transnational action on issues that affect workers. One way in which capital can try to evade the demands of democracy, of course, is by exiting a given nation-​state or threatening to do so. Unless nation-​states move back to a world of stringent controls on capital export, the obvious counter to this is for democracy to be scaled-​up to the transnational level. Insofar as trade unions have international links, they have some potential to act in coordinated ways at the transnational level and so may help in the project of building the social and institutional bases for democracy at this level. Concretely, this might involve coordinated direct action against particular firms, or transnational political campaigns addressed to transnational political bodies (for example, the European Commission and Parliament), or seeking union representation within major international bodies such as the International Monetary Fund (IMF) or World Trade Organization (WTO).55

(h) Unions and control over investment Unions might also have a role in democratising control of investment. Investment decisions obviously affect societies in profound and pervasive ways. Nevertheless, in a capitalist society, they remain largely at the discretion of capital-​owners. Insofar as unions have a role in managing investment funds, however, then this could serve somewhat to democratise investment decisions. In some advanced capitalist countries in the 1970s, strong union movements devised ambitious plans with radical implications in this regard. The famous example is the ‘Meidner Plan’ in Sweden that would have required companies to issue new shares each year into union-​controlled collective investment funds.56 But aside from these radical possibilities, unions are able to establish and exert some control over investment, for example through a role in managing pension funds. In the US, ‘financial activism’ has become an important plank of union strategy since the 1980s with unions intervening, as shareholders, to reform companies’ structures of governance.57

54 See eg Wolfgang Streeck and Anke Hassel, ‘Trade Unions as Political Actors’ in John T Addison and Claus Schnabel (eds), International Handbook of Trade Unions (Edward Elgar 2003) 357–​8; Jonas Pontusson, ‘Unionization, Inequality and Redistribution’ (2013) 51 British Journal of Industrial Relations 797; Jasmine Kerrissey, ‘Collective Labor Rights and Income Inequality’ (2015) 80 American Sociological Review 626. Most studies focus on industrialised countries but Jasmine Kerrissey’s 2015 research looks at the impact of collective labour rights on income inequality worldwide. She finds that collective labour rights are associated with lower income inequality in most parts of the world with the strongest effect in the industrialised West. She finds no statistically significant effect in Africa, though she suggests this might reflect Africa’s low sample size in the study; and no effect in Eastern Europe, possibly reflecting the impacts of state socialism. 55  Streeck and Hassel (n 21) 360. 56  John D Stephens, The Transition from Capitalism to Socialism (Palgrave Macmillan 1979) 177–​94; Rudolf Meidner, Employee Investment Funds: An Approach to Collective Capital Formation (George Allen & Unwin 1978); Jonas Pontusson, The Limits of Social Democracy: Investment Politics in Sweden (Cornell University Press 1992); Joe Guinan, ‘Social Democracy in the Age of Austerity and Resistance: The Radical Potential of Democratising Capital’ (2012) 20 Renewal: a Journal of Social Democracy 9. 57  For one discussion, see Archon Fung et al (eds), Working Capital: The Power of Labor’s Pensions (Cornell University Press 2001).

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(i) But aren’t unions bad for democracy? Our argument thus far has stressed the benefits of strong trade unions for democracy. Unions are, however, often viewed and presented as bad for democracy. In Britain in the 1970s, unions were frequently said in the press to be ‘holding the country to ransom’ and the February 1974 general election was fought by the Conservatives on the platform of ‘Who governs?’, the implication being that voters had to choose between parliamentary democracy and rule by union overlords. In response to this vein of scepticism, we make three points. First, while individual unions can obviously use their power in unfair or imprudent ways, we think it vital to be explicit about the underlying reality of class politics.58 In a capitalist economy, capital almost always has the option of exit in some form and this puts strong and constant pressure on governments to shape policy to accord with the broad interests of capital-​owners. It is much harder for labour to bring similar pressure to bear because of the organisation and coordination involved.59 Insofar as unions manage to bring pressure to bear on governments, this is, broadly speaking, a democratising influence in society as it tends to counterbalance the background pressures on policy from capital. Governments—​ and electorates—​have to find ways to accommodate both sets of interests rather than passively accommodating to an implicit but powerful norm that is more straightforwardly pro-​capital. If we picture capitalist democracy as a kind of ‘mixed constitution’ in Aristotle’s terms, combining institutions that empower the rich (such as private control over investment) and those that empower the poor and non-​wealthy, union power shifts the mixed constitution in a less oligarchic direction. Secondly, we think it important to attend to the structure and spread of trade unionism. There is a strong body of evidence that where unions are encompassing in coverage of the workforce and centralised or otherwise capable of coordinated action, they facilitate effective management of the economy.60 Rather than being a threat to governance, the unions facilitate and participate in it. As indicated earlier (Section 3(f)), this is typically a democratising influence in that it shifts the terms of the national political conversation towards closer consideration of workers’ interests. We should recall the cross-​national evidence, noted in Section 3(f), on the difference unions make to such things as earnings and income inequality. The third part of our response is to stress the importance of internal union democracy and unions’ inclusiveness. If unions have power but operate in ways that are not robustly democratic, or fail to practice inclusion in their membership and methods of work, then we would agree that there is cause for concern. This is why we think the state has a legitimate role in legislating some basic requirements for union organisation.61 We return to

58 For insightful comment specifically on British trade union strategy in the 1970s and 1980s, see David Purdy, ‘The Wages of Militancy:  Incomes Policy, Hegemony and the Decline of the British Left’, Hegemonics (2006) accessed 3 August 2017; Peter Ackers, ‘Gramsci at the Miners’ Strike: Remembering the 1984–​1985 Eurocommunist Alternative Industrial Relations Strategy’ (2014) 55 Labor History 1. 59 Claus Offe and Helmut Wiesenthal, ‘Two Logics of Collective Action’ in John Keane (ed), Claus Offe, Disorganized Capitalism: Contemporary Transformations of Work and Politics (Polity Press 1985). 60 Lars Calmfors and John Driffill, ‘Bargaining Structure, Corporatism and Macroeconomic Performance’ (1988) 3 Economic Policy 14; David Soskice, ‘Wage Determination: The Changing Role of Institutions in Advanced Industrialized Countries’ (1990) 6 Oxford Review of Economic Policy 36; Jukka Pekkarinen, Matti Pohjola, and Bob Rowthorn (eds), Social Corporatism: A Superior Economic System? (Clarendon Press 1992); Streeck and Hassel (n 21) 95–​113; Jonas Pontusson, Inequality and Prosperity: Social Europe vs Liberal America (Cornell University Press 2005) 95–​113. 61  Stuart White, ‘Trade Unionism in a Liberal State’ in Amy Gutmann (ed), Freedom of Association (Princeton University Press 1998).

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this point briefly later in elaborating what we call the promotive stance of the state towards trade unionism.

4.  The Promotive Stance We have argued that trade unions can and do serve as a counterweight to oligarchy in numerous ways and, in these respects, contribute to substantive political equality. If we are right, then this is a reason to think that a democratic state ought to adopt a promotive stance towards trade unionism.62 In short, if strong unions are a feature of a robust democracy, and if a democratic state should take action to sustain the conditions for its own health as a democracy, then surely the state should be supportive of trade unionism.63 But what do we mean by a ‘promotive stance’? What can be said against it?

(a) Defining the promotive stance In principle, states can adopt legal and policy frameworks that discourage trade unionism, encourage it, or aim at neutrality. If the state bans independent trade unions, it obviously has adopted a discouraging stance. Some might argue that the absence of a ban suffices for a neutral stance. However, the common law baseline of countries such as the UK itself creates an inhospitable environment for trade unions. Cole puts the point as follows: ‘According to the common law, a Trade Union, if it is not in itself illegal, at least comes into conflict with the law as soon as it takes any action for the regulation of the conditions of employment of its members.’64 On efforts by workers to achieve union recognition in particular, Alan Bogg points out that:  ‘ “Neutral” enforcement of property means that unions can be excluded from the employer’s property, while the employer can campaign to a “captive audience” workforce at any time during the working day. “Neutral” enforcement of freedom of contract means that workers can be dismissed with impunity for choosing to support the union.’65 The neutrality embodied in the common law background is not sufficiently attuned to the inequalities in power between workers and employers that this legal background itself creates. A plausible conception of the neutral stance needs to take these background inequalities into account.66 A more plausible candidate in this respect, as discussed by Bogg, is the model of statutory union recognition established in the UK in 1999, which has much in common with the US system deriving from the Wagner Act of 1935. In this kind of model—​we’ll call it the Wagner-​type model—​the default is a non-​unionised workplace. But under certain conditions, workers can trigger a workplace ballot on union recognition. If there is a majority in the ballot, the union wins recognition and the employer then has duties to respect the union as a collective bargaining agent. There are rules also to ensure that unions and employers both get a ‘fair hearing’ in the run-​up to the ballot (for example, workers cannot be dismissed for supporting unionisation). In practice, neither the US nor the UK actually live up

62  ibid; Stuart White, ‘Liberal Neutrality and Trade Unions’ (2011) 33 Comparative Labor Law and Policy Journal 417; see also Alan Bogg, The Democratic Aspects of Trade Union Recognition (Hart 2009); Alan Bogg, ‘New Labour, Trade Unions and the Liberal State’ (2009) 20 King’s Law Journal 403; Brishen Rogers, ‘Three Concepts of Workplace Freedom of Association’ (2016) 37 Berkeley Journal of Employment and Labor Law 177. 63  The argument for the promotive stance is wider than the link with political equality discussed here. In Rawls’s terms, the argument will likely include considerations related to the difference principle and fair equality of opportunity as well as to the fair value of the political liberties. For a statement of the wider argument, see White (n 61). 64  Cole (n 37) 140. 65  Bogg, ‘New Labour, Trade Unions and the Liberal State’ (n 62) 417. 66  White (n 61).

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to the ‘even-​handed’ promise of this model. In the UK, there are a number of concerns such as the lack of guaranteed union access to workplaces before a ballot is triggered, and about the requirement that majority votes meet a threshold of at least 40% of the workers eligible to vote, both rules that weight things further in favour of the non-​union default.67 However, it is possible in principle to correct these features and to imagine a variant of the model that would give unions more access and individual workers more protection. Arguably, a suitably amended variant of the model would exemplify a neutral stance on the part of the state towards trade unionism. In contrast to this neutral stance, Keith Ewing advocates a state that will: intervene to ensure that the institutional structures are in place to facilitate trade-​union involvement in the decision-​making process, using the law or other forms of state apparatus in a positive sense where necessary, rather than merely to remove impediments to trade-​union organization, as in the case of the liberal state.68

As we will explain later, we see no inconsistency between such intervention and the ‘liberal state’, but otherwise Ewing’s formulation captures in general terms what we mean by a promotive stance. Concretely, this stance will guide the state’s approach to a range of key questions concerning union membership rules, union recognition, duties on employers to engage in collective bargaining, and the rights of workers to take strike action. Roughly speaking, the idea is to switch the default setting to union membership and recognition; to complement this with clear duties on employers to bargain with unions in good faith; and to secure for workers an expansive right to strike, for example one that includes the right to take secondary action.69 Ewing points out that the UK state did in fact adopt a promotive stance for much of the twentieth century, for instance by authorising executive agencies to encourage collective bargaining at industry level. He and John Hendy have set out an ambitious proposal for a revival of this approach.70 Under Ewing and Hendy’s scheme, government enumerates the various sectors of the economy and then legislates the establishment of a Sectoral Employment Commission (SEC) in each sector. SECs are to have equal employer and union representation. They would have the power to make authoritative rules within the sector with regard to a wide range of employment issues such as pay, health and safety rules, holidays, disciplinary rules, and trade union membership.71 In this model, the state takes the view that unions are a desirable part of a system of economic governance and deliberately creates this system and brings unions into it. We repeat, however, that the promotive stance as we conceive it can also imply duties on trade unions, as well as justifying state intervention in support of the fulfilment of those duties. In particular, as suggested earlier (Section 3(h)), we think there is a legitimate role for the state in upholding good democratic and inclusive practices within trade unions (such as requiring the use of the secret ballot in votes over strike action).72 We also emphasise that the promotive stance has a qualitative as well as quantitative aspect: what matters is 67  Ruth Dukes, ‘The Statutory Recognition Procedure 1999:  No Bias in Favour of Recognition?’ (2008) 37 Industrial Law Journal 236, 249–​58; Bogg, The Democratic Aspects of Trade Union Recognition (n 62); Bogg, ‘New Labour, Trade Unions and the Liberal State’ (n 62) 418–​22. 68  Keith D Ewing, ‘The State and Industrial Relations: “Collective Laissez-​Faire” Revisited’ (1998) 5 Historical Studies in Industrial Relations 1, 6–​7. 69  Much more detailed discussions to which we are sympathetic include Bogg, The Democratic Aspects of Trade Union Recognition (n 62); Keith Ewing and John Hendy, ‘New Perspectives on Collective Labour Law: Trade Union Recognition and Collective Bargaining’ (2017) 46 Industrial Law Journal 23; see also Rogers (n 62). 70  Ewing and Hendy (n 69). 71  ibid  38–​40. 72  We also have little doubt that current UK law goes well beyond what can be justified in these terms. While insistence on a secret ballot defines good practice, a requirement on postal ballots does not seem necessary in this way. Recent proposals in the UK that strike votes must win not just a majority of those who vote but a threshold of 40% of those eligible to vote are also not justified by a need to ensure good practice. These requirements seem

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not just the raw proportion of the workforce in unions, or covered by collective bargaining agreements, but the distribution of union representation and support within the workforce, in particular the inclusion and participation of more disadvantaged workers.73

(b) Defending the promotive stance If this describes what the promotive stance is, in broad terms, is it desirable? Even if there are grounds for such a stance, are there not also strong, and perhaps stronger, considerations against it? There are a number of criticisms and concerns we might discuss here but we will focus on two, both of which claim that the promotive stance is objectionably illiberal. If the objections hold then it looks as if liberal democracies may have to forgo pro-​ union interventions that are putatively good for their democratic character, on the grounds that these are also bad for their liberal character. The first objection appeals to the value of neutrality. One strand in contemporary liberal philosophy argues that the state should not take sides on questions about the nature of the good life, or between ‘comprehensive doctrines’ of a philosophical or religious nature, that are reasonably disputed by citizens. Neutrality here expresses the idea that the state should affirm the equal dignity of all citizens and fails to do so if it takes sides in such disputes. Neutrality at this level might be thought, in turn, to demand neutrality in relation to associations: it is wrong for the state to promote a specific religious group or give special status to associations such as the Boy Scouts or the Girl Guides.74 As one of us has explained in earlier work, the objection fails in general terms.75 The principle of state neutrality advanced within contemporary liberal political philosophy, in particular in the work of John Rawls, is one that constrains the kind of justification that citizens may offer for their laws, particularly (for Rawls) in relation to ‘constitutional essentials’ and ‘matters of basic justice’.76 Justification must be based on ‘public reason’ rather than on considerations internal to a specific comprehensive ethical doctrine. Public reason includes, centrally, considerations of social justice, considerations that are, as Rawls would argue, acceptable to reasonable citizens of diverse comprehensive views. In Rawls’s view, principles of justice include a commitment to what he terms the ‘fair value of the political liberties’, a commitment to ensure that the value of political liberties (such as rights to vote and stand for office) is not undermined by such things as background economic inequality.77 Our democratic case for trade unions, and for a promotive stance based in part on unions’ contribution to democracy, can be seen precisely as appealing to the fair value of political liberties. It is, therefore, grounded in public reason and so is fundamentally neutral in the appropriate liberal sense. A second objection focuses on specifics of the promotive stance, in particular on what it might imply for union membership rules. On one interpretation, the promotive stance entails support for the ‘closed shop’: an arrangement under which union membership is a condition of employment. But this violates the idea that, in a liberal society, associational membership should be voluntary. In response, we make two points. First, even were one to motivated by a desire to make it more costly or difficult for unions to call strikes and so arguably indicate a state position of seeking to discourage effective trade unionism. 73  Fine, ‘Community Unions and the Revival of the American Labor Movement’ (n 32); Fine, ‘A Marriage Made in Heaven?’ (n 32); Pontusson (n 14). 74  See also Alan Bogg and Keith Ewing, ‘A (Muted) Voice at Work—​Collective Bargaining in the Supreme Court of Canada’ (2011) 33 Comparative Labor Law and Policy Journal 379, 408–​9. 75  White (n 61). 76  John Rawls, Political Liberalism (Columbia University Press 1993). 77  See John Rawls, Justice as Fairness: A Restatement (Harvard University Press 2001) 148–​50.

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concede the objection to the point of giving up altogether on the closed shop, this would not necessarily rule out other interventions that we have sketched as part of the promotive stance. Secondly, and more fundamentally, we think the legitimate liberal concern here can and—​for reasons internal to liberalism itself—​should be met without giving up altogether on the closed shop. The debate around the justifiability of the closed shop is often presented in terms of a claim of individual liberty against a claim of fairness between workers in a given workplace or industry. The fairness issue is said to concern the risk of ‘free-​riding’ by non-​union members: they get the benefits of higher wages or better conditions negotiated by the union without carrying any of the associated costs. Our argument in this chapter suggests, however, that more is at stake here. If trade unions make an important contribution to social justice more widely, including to maintaining the fair value of political liberties, then non-​union members are also free-​riding to some degree in relation to these goods. Or, to put the point in another way, these workers’ lack of membership and participation in unions creates a kind of ‘negative externality’ for the wider promotion of social justice and (our focus in this chapter) a robust democracy. In view of this it is reasonable—​ reasonable in terms of the pursuit of a liberal conception of social justice—​to make union membership the default. Where the individual has a genuine conscientious objection to unions we agree that this should be respected. The default is trumped. But in order to protect the default, and the liberal, social justice values it protects, the state may legitimately take steps to prevent the abuse of the right of conscientious exemption. One proposal is to require the objector to make payments to a charity of their choice equal to the cost of union dues.78 Related issues internal to membership, such as liability to political party and campaign contributions, can be approached in a similar spirit. There is an important value here concerning individual consent and the right to refuse association. But it is a mistake, and not necessarily in best accord with a liberal account of justice in an all-​things-​considered sense, to think that this value requires union membership and recognition rules akin to what we have called the merely neutral stance (ie following, with appropriate amendments, the Wagner-​type model).

5. Conclusion Concerns that liberal democracies in advanced capitalist economies have recently experienced an oligarchic shift have given urgency to both activist and academic efforts to identify ways of renewing democracy. However, many proposals neglect the associational environment in which democratic institutions work. This carries the risk of misdiagnosing the problems with existing institutions and/​or of overestimating the likely counter-​oligarchical effects of particular reforms to decision-​making structures. In this chapter we have sought to reaffirm the perspective of ‘associative democracy’,79 in particular exploring the potential contribution of trade unions to political equality. We hope that we have convincingly made the case that, given the ways in which the political power of the rich has come to undermine political equality and the fair value of the political liberties, there are decisive reasons for the state to support and promote trade unions in their role as sources of countervailing political power, redressing underlying inequalities of voice and influence, and acting as a bulwark against oligarchic power. A neutral concern

78  As argued in White (n 61). 79  Paul Q Hirst, Associative Democracy:  New Forms of Economic and Social Governance (Polity Press 1994); Joshua Cohen and Joel Rogers, Associations and Democracy: The Real Utopias Project, Vol 1 (Verso 1995).

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for the political standing of all citizens should not lead a liberal state towards neutrality about institutions such as trade unions. Rather, it is precisely because of the state’s equal concern for the political standing of all citizens that it has a duty to ensure the associational preconditions for that equal political standing, and therefore why the liberal state has reason to promote the flourishing of trade unions, as the best chance we have of finding an associational counterweight to the inegalitarian power of the wealthy.

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15 Gender and the Labour of Law Joanne Conaghan 1. Introduction A fundamental assumption which has underpinned labour law since its inception as a discipline is that the ‘labour’ of labour law signifies labour that is remunerated. While debate may thrive over the varied forms which paid working arrangements can take, there remains wide agreement that the field of labour law corresponds with the field of paid work and that unremunerated labour carried out in the home or community is outside its scope.1 Challenges to this widely shared consensus occasionally arise, increasingly so as feminist scholars acquire a (still tenuous) grip on the discipline.2 Nevertheless, such challenges rarely if ever disturb the core assumption that paid labour is a distinct domain of social activity inviting a distinct normative and regulatory response. So ingrained is this assumption in the labour law psyche that feminist exhortations to expand the reach of labour law to encompass unpaid domestic labour are generally met with polite bewilderment.3 They are off the spectrum of serious consideration. The purpose of this chapter is to trouble this consensus by excavating the material and philosophical roots of the distinction between paid and unpaid labour. It is important to remember that, like any conceptual framing, the paid/​unpaid labour distinction is no more than an intellectual contrivance which may or may not correspond at any time or place with the material realities it seeks to represent. Labour law, as we know it, is a historical creation. It takes its form and purpose from the social concerns thrown up by industrial capitalism,4 reflecting a paradigm of industrial relations in which the central protagonists, capital and labour, are invariably at odds. It is the inevitability of industrial conflict in the context of sharp asymmetries of power in the individual employment relationship which gives labour law its purpose: ‘The main object of labour law,’ Kahn-​Freund declares, ‘has always been and I venture to say always will be, to be a countervailing force to counteract the inequality of bargaining power which is inherent, and must be inherent, in the employment relationship.’5 There are reasons to think that notwithstanding the absolute and universal terms in 1  The assumption that labour law correlates with paid work is generally taken for granted rather than explicitly stated but cf Matthew Finkin, ‘The Death and Transfiguration of Labor Law’ (2011) 33 Comparative Labor Law and Policy Journal 171, 177 (where Finkin reasserts the historical and contemporary linkage between labour law and ‘the institution of waged work’). 2  My own engagement with the disciplinary parameters of labour law can be found in Joanne Conaghan, ‘Work, Family and the Discipline of Labour Law’ in Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work and Family (OUP 2005) 26. For an excellent analytical overview of feminist labour law scholarship, see Judy Fudge, ‘From Women and Labour Law to Putting Gender and Law to Work’ in Margaret Davies and Vanessa Munro (eds), The Ashgate Research Companion to Feminist Legal Theory (Ashgate 2013) 321. 3  Finkin (n 1) 173. For a rare example of scholarship engaging directly with the notion that labour law extends beyond ‘nonmarket work’, see Noah D Zatz, ‘The Impossibility of Work Law’ in Guy Davidov and Brian Langille (eds), The Idea of Labour Law (OUP 2011) 234. 4  Bob Hepple, ‘Factors Influencing the Making and Transformation of Labour Law in Europe’ in Davidov and Langille (n 3) 30–​2 and Harry Arthurs, ‘Labour Law after Labour’ in the same volume, 13. 5  Otto Kahn-​Freund, Labour and the Law (2nd edn, Stevens & Sons 1977) 6. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 15 © Joanne Conaghan 2018. Published 2018 by Oxford University Press.

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which Kahn-​Freund cast his pronouncement, the employment relationship—​and the contract of employment which underpins it—​is no longer the lynchpin anchoring labour law in the early twenty-​first century.6 Many questions have been raised about labour law’s reach and scope,7 troubling the notion that labour regulation is solely or even predominantly concerned with what goes on in workplaces. Increasingly it is acknowledged that the regulatory field encompasses and/​or engages broader efforts to manage labour markets and to mitigate the risks (for workers and employers) to which market-​governed interactions frequently give rise.8 An unprecedented degree of uncertainty surrounds the object, concerns, and bounds of the discipline proper as old concepts and certainties collapse in the face of new ideas and possibilities.9 It is within the context of what many agree is a disciplinary crisis that the predication of labour law on a paid work paradigm comes under enhanced scrutiny. Radical changes in the gender demographics of paid work participation have highlighted the extent to which the social organisation of work in industrial societies is historically reliant on a gendered configuration of productive and reproductive activities that has become increasingly untenable.10 The interpenetration of the domains of work and family in legal and social policy-​ making, encapsulated in concerns about ‘work/​life balance’ or the ‘reconciliation of work and family responsibilities’11 also contributes to a discursive environment in which questions about the relation between paid and unpaid labour inevitably arise. How, then, did the distinction come about and how does it map onto broader ideas of political and social order? It is important to situate this enquiry against the background of a wider set of issues to which the slow but steady collapse of the paid work paradigm gives rise. Some of these issues are normative, raising concerns about how work is distributed and rewarded and how patterns of power relations—​gender, race, and class—​mediate these processes of distribution and reward. However, it is a recurrent misapprehension of labour law scholars to assume that the feminist focus on unpaid work is animated solely by egalitarian or justice-​ seeking aspirations. In fact, the feminist foregrounding of unpaid work is equally driven by concerns as to the value and utility of the analytical and conceptual frames through which labour law is commonly apprehended.12 It is with these primarily analytical concerns in mind that I embark upon a genealogical exploration of the emergence of the distinction between paid and unpaid work, with a view to historicising and denaturalising what continues to be a critical disciplinary frontier.13

6 See eg Mark Freedland and Nicola Kountouris, The Legal Construction of the Personal Work Relation (OUP 2011). 7  Guy Davidov usefully summarises these concerns in ‘Setting Labour Law’s Coverage: Between Universalism and Selectivity’ (2014) Oxford Journal of Legal Studies 543, 546–​50. 8  Simon Deakin and Frank Wilkinson, The Law of the Labour Market: Industrialization, Employment and Legal Evolution (OUP 2005). 9  See essays in Davidov and Langille (n 3). 10  Deakin and Wilkinson (n 8) vii, 17; Judy Fudge, ‘The New Dual Earner Gender Contract: Work-​Life Balance or Working Time Flexibility’ in in Joanne Conaghan and Kerry Rittich (eds), Labour Law, Work and Family (OUP 2005) 261, 266–​9. 11  Eugenia Caracciolo di Torella and Annick Masselot, Reconciling Work and Family Life in EU Law and Policy (Palgrave Macmillan 2010). 12  Judy Fudge, ‘A New Vocabulary and Imaginary for Labour Law:  Taking Legal Constitution, Gender and Social Reproduction Seriously’ in Douglas Brodie, Nicole Busby, and Rebecca Zahn (eds), The Future Regulation of Work (Palgrave MacMillan 2016) 9; Joanne Conaghan, ‘Labour Law and Feminist Method’ (2017) 33 International Journal of Comparative Labour Law and Industrial Relations 93. 13  For an exploration of labour law’s ‘frontiers’, see Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law (Hart 2006).

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2.  Material Origins Modern labour law emerged as a response to the problems occasioned by industrialisation.14 Its particular, history varies from jurisdiction to jurisdiction but its essential forms and categories reflect the specific social and economic requirements of the transition from feudalism to capitalism: the shift from rural to urban living; the rise of a market economy; the separation of production from consumption and of workers from ownership and/​or control of the means of production; and the demarcation of work and family into distinct spheres of activity. These are all well-​documented historical phenomena giving rise to the forms of social organisation we apprehend today.15 Let us dwell for a moment on one aspect of this broad package of social changes, the demarcation of work and family into distinct spheres of activity. Imagine a world where workplaces, as we understand them, did not exist, or did not constitute the living experience of most ordinary people. In the subsistence economy of feudalism, peasants lived and worked the land of their lords, bound in a relationship of asymmetric obligations and undisguised hierarchy.16 For most people, home and work were one and the same, with men and women working together to support their families and communities: ‘Feudal relations of production tied the whole household rather than the individual to socially productive labour.’17 It would be wrong to romanticise this world as one of unabashed gender equality. Feudal society was characterised both by a sexual hierarchy and division of labour.18 Responsibility for feeding, caring, and nurturing family and community generally fell upon women but women also contributed to working the land and serving the lord and his family.19 The lives of peasants were hard, the lives of women particularly so; but what was not in doubt was that women worked; the labour they performed was critical to the survival of the family and community.20 In an economic and social world where, for most people, subsistence was a daily struggle, the value and importance of women’s contribution to the household economy was not in question. In the course of the transition from feudalism to capitalism, a process characterised in Marxist terminology as ‘primitive accumulation’21 and in England broadly corresponding with the fourteenth through to seventeenth centuries, this way of life broke down: feudal privileges were repeatedly challenged and economic life became increasingly monetarised

14  Deakin and Wilkinson (n 8) especially ch 2. 15  There is a significant literature on the transition from feudalism to capitalism particularly within Marxism where debate has focused on the precise causes and drivers of economic and social change. See eg Maurice Dobb, Studies in the Development of Capitalism (Routledge & Kegan Paul 1946); Rodney Hilton (ed), The Transition from Feudalism to Capitalism (Verso 1978); TH Aston and CHE Philpin (eds), The Brenner Debate: Agrarian Class Structure and Economic Development in Pre-​Industrial Europe (CUP 1985); Ellen Meiksins Wood, The Origins of Capitalism (Monthly Review 1999). (The latter provides an incisive overview of Marxist debate as well as her own analysis of the dynamics of transition.) 16 Silvia Federici, Caliban and the Witch:  Women, the Body and Primitive Accumulation (Autonomedia 2004)  21–​50. 17  Michele Barrett, Women’s Oppression Today (3rd edn, Verso 1984) 177. There is a rich feminist literature on the pre-​capitalist ‘family economy’ in which all family members engaged in the necessary labour to sustain the household. See especially Louise Tilly and Joan Wallach Scott, Women, Work and Family (Psychology Press 1987) chs 1–​3; Bridget Hill, Women, Work and Sexual Politics in Eighteenth Century England (Routledge 1989) chs 3 and 4. 18  Chris Middleton, ‘The Sexual Division of Labour in Feudal England’ (1979) 0/​113 New Left Review 147. 19 ibid. 20  ibid. Within the family economy, women did both work we would characterise as housework (domestic labour) and work we would classify as production, ie making goods and produce for use and/​or exchange (see further Hill (n 17) 24–​5). 21  Karl Marx, Capital I, Part VIII (Lawrence & Wishart 1983).

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as money-​rent replaced the old obligations to render labour services to feudal lords.22 This was a period in which economic inequalities deepened,23 and for women the shift from a subsistence-​based to monetary economy was largely detrimental. With limited access to income or land and deepening patterns of gender stratification in wage labour,24 women became increasingly economically dependent on men.25 Displaced people flocked to towns which operated as commercial centres supported by craft guilds but also created wage labour opportunities. In the early social chaos following the breakdown of serfdom, opportunities for women sometimes arose.26 However, in general the social and economic restructuring process accompanying the transition to industrial capitalism closed down rather than opened up opportunities for women and, indeed, for most working men.27 The historian, EP Thomson tracks the social disciplining of the working class into new working habits centred on the needs of industrial production. He documents the transition from ‘task-​oriented time’, structured around the cyclical activities of rural life, to ‘timed labour’, in which a labourer’s time became the measure of his wage, which was in turn dependent upon his employer’s needs.28 In a production-​for-​use economy, where subsistence, not profit, governed social and labour activities, the household was the centre of activity and ‘social intercourse and labour [were] intermingled’.29 With the rise of a production-​ for-​exchange (markets), ‘productive’ labour moved out of the household and into the mills and factories so that a cleavage between ‘home’ and ‘work’ emerged.30 Working patterns changed and the idea of the working day—​of working to time not task—​took hold. It was clearly in the interests of employers to secure as much of workers’ time as possible and, not surprisingly, the process of industrialisation witnessed intense class struggle over working time, culminating in the nineteenth-​century Factory Acts and associated measures.31 In the early stages of industrialisation, women as well as men were drawn into the mills and factories.32 At the same time, social reproductive work—​feeding, caring for, and reproducing 22  Federici (n 16) 28–​30 and 72–​5. 23  Chris Middleton, ‘Patriarchal Exploitation and the Rise of English Capitalism’ in Eva Gamarnikow, David Morgan, June Purvis, and Daphne Taylorson (eds), Gender, Class and Work (Gower 1983) 11. 24  Middleton (n 18) 159–​62. 25  Federici (n 16) 74: ‘As soon as land was privatised and monetary relations began to dominate economic life, [women] found it more difficult than men to support themselves, being increasingly confined to reproductive labour at the very time when this work was being completely devalued.’ 26  Federici (n 16) 31; Martha Howell, ‘Gender in the Transition to Merchant Capitalism’ in Judith Bennett and Ruth Mazo Karras (eds), The Oxford Handbook of Women and Gender in Medieval Europe (OUP 2013) 561. 27  Early feminist studies of women’s work took diverging approaches to the question of whether women’s status and position improved or declined as a consequence of capitalism. Alice Clark, writing in 1919—​The Working Life of Women in Seventeenth Century England (Frank Cass 1968)—​thought women were better off in the pre-​ industrial era whereas Ivy Pinchbeck, in her classic work Women Workers and the Industrial Revolution 1750–​1850 (first published 1930, Virago 1981), viewed industrialisation as providing greater opportunities for women to engage in waged labour. This divergence continues to resonate in feminist histories of women’s work although recent analyses are more nuanced and equivocal, acknowledging both continuity and change in women’s working lives under capitalism. See collected essays by Pamela Sharpe, Bridget Hill, and Jean Bennett in Pamela Sharpe (ed), Women’s Work: the English Experience 1650–​1914 (Arnold 1998) Part 1. 28 EP Thompson, ‘Time, Work-​Discipline and Industrial Capitalism’ Thompson in Customs in Common (Penguin 1991) 352, 358. 29  ibid 358. 30  Or, as Thompson puts it, between ‘life’ and ‘work’ (ibid). For a feminist reading of Thompson’s analysis of working time, see Joanne Conaghan, ‘Time to Dream? Flexibilities, Families and the Regulation of Working Time’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women and the New Economy (Hart 2005) 101, 106–​10. 31  See Marx (n 21) ch XVII on the importance of working time to the extraction of surplus value. On the gender dimensions of nineteenth-​century working-​class struggle to limit the length of the working day, see Sylvia Walby, Patriarchy at Work (Polity Press 1986) 97–​134. 32  There is evidence that in early industrialisation women workers dominated certain manufacturing sectors such as textiles and weaving—​Maxine Berg, ‘What Difference did Women’s Work Make to the Industrial Revolution?’ in Pamela Sharpe (ed), Women’s Work: the English Experience 1650–​1914 (Arnold 1998) 149.

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labour—​still needed to be done. Indeed, in a context in which labour was perceived as the prime source of economic value,33 never more so. Thus, most working women’s lives tended to comprise both work to support the family income, in the form of waged labour, alongside the many activities typically required to sustain and reproduce labour power. This is the historical and material context in which a notion of labour equating with paid labour took shape and form: the advent of industrial capitalism triggered a reconfiguration of the labour process which split ‘domestic’ and ‘industrial’ labour, affecting perceptions of the character and value of the work performed.34 With productive and reproductive work no longer temporally and spatially aligned, their distinctiveness became more pronounced, assuming a tangible visible form, which intensified and naturalised the sexual division of labour.35 Productive labour became spatially associated with a place of work—​a workplace—​ while reproductive labour became the province of family life, physically located in the home, which also served as a retreat from the demanding rigours of the production line. Reproductive work became less valued, in part because it was performed by women within a context of social intensification of sexual difference, but also because it was no longer seen to be contributing economically: it did not generate a wage.36 Although reproductive work remained equally essential to the survival of the family unit, in a world in which money now measured value, it did not appear so.37 During the nineteenth century the bourgeois ‘cult of domesticity’, expressed in the idea that women’s place is in the home, gradually spread its tentacles to encompass and define working-​class aspirations.38 This dominant ideology of the Victorian period conjured up a social vision in which women devoted themselves to the ‘private’ sphere of home and family while men occupied the ‘public’ world of market and politics.39 Such a sharp delineation of gender roles was always more ideal than real, particularly for working-​class women, most of whom continued to engage in wage labour to some degree as a matter of economic necessity40 but there is no denying that, during the nineteenth century, women’s access to paid work became an increasing focus of social and political conflict:  among bourgeois women the primary concern (in the face of strong male resistance) was access to the professions and related occupations;41 within the working class, women’s employment became a

33  This was a period when the labour theory of value was gaining traction (see especially the work of David Ricardo and, later, Karl Marx). 34  Wally Secombe, ‘The Housewife and her Labour under Capitalism’ (1974) 0/​83 New Left Review 3, 5–​6. 35  Much of nineteenth-​century debate concerning restrictions on women’s employment drew upon notions of women’s ‘natural’ duty to care for their families and the moral and social harm occasioned by their inability to do so while they were engaged in paid work. See Walby (n 31) 112–​16. 36  Domestic work carried out by servants did command some form of remuneration (generally including board and lodgings) although it was low paid and often deeply exploitative—​Hill (n 17) ch 8. During industrialisation, domestic service became the main form of employment for young working-​class women; moreover, women vastly outnumbered men as domestic servants (ibid 125–​6). On the history of domestic work regulation, see Einat Albin, ‘From Domestic Servant to “Domestic Worker”’ in Judy Fudge, Shae McCrystal, and Kamala Sankaran (eds), Challenging the Legal Boundaries of Work Regulation (Hart 2012) 231. 37  Changes in how domestic labour was perceived and valued occurred gradually over a lengthy period; there is evidence that in early capitalism women’s contribution to the household was still regarded as economically essential—​Middleton (n 23) 21–​4. 38 Joanna Bourke, ‘Housewifery in Working Class England 1860–​1914’ in Pamela Sharpe (ed), Women’s Work: the English Experience 1650–​1914 (Arnold 1998) 332. 39 Pamela Sharpe, Introduction’ in Pamela Sharpe (ed), Women’s Work:  the English Experience 1650–​1914 (Arnold 1998) 10. 40  See eg Amanda Vickery, ‘Golden Age to Separate Spheres’ in Pamela Sharpe (ed), Women’s Work: the English Experience 1650–​1914 (Arnold 1998) 294 critiquing the idea of separate spheres as a characterisation of working class women’s lives in the Victorian era. 41  Candida Ann Lacey (ed), Barbara Leigh Smith Bodichon and the Langham Place Group (Routledge & Kegan Paul 1987).

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significant focus of capitalist–​labour conflict over matters such as sex-​based wage differentials and the length of the working day.42 By the twentieth century, with the development of the welfare state, a distinct social model had emerged to support the organisation of work in the industrial world: the male breadwinner/​female caregiver model43 was an unequivocally gendered order based upon a sharp distinction between work and family life and the promise—​or myth—​of a ‘family wage’.44 Within this social imaginary, work and family appeared to operate autonomously, serving different social functions and meeting different human needs. Care work became the province of family; no longer viewed as a necessary economic contribution to social well-​being, it attracted no wage and was conceived as freely given and naturally expressive of relations of affect and intimacy. Paid work took place outside the family realm; it was visibly economic in character and expressed in formal legal relations of mutuality and exchange. Of critical importance, the world of paid work, now spatially aligned with the ‘workplace’, was predicated on the assumption that ‘workers’ were exclusively available for the duration of the period they were contracted to work, unencumbered by care work which was carried out elsewhere. Thus, while industrial production remained materially reliant upon unpaid care work to ensure, on a daily and generational basis, that labour was reproduced, this reliance was obscured both by the physical and conceptual separation of work and family and the naturalisation of distinct gender roles. The old world in which productive and reproductive activities appeared inextricably entwined in material life processes had disappeared.

3.  Philosophical Underpinnings The brief account offered above cannot pass for a proper exploration of what was unquestionably a huge transformation in social and economic life, taking place over a lengthy period and the product of complex, often conflicting forces and demands. Nevertheless, it serves for our purposes to identify a notional moment when production and reproduction materialised as separate and distinct realms of social activity. The analysis so far has focused on the material dimensions of this process of separation but it is important too to highlight the contribution of philosophical ideas to a worldview in which gender and labour became simultaneously aligned (in the naturalisation of a sexual division of labour) and dissociated (in the reconfiguration of the labour process to exclude women’s reproductive work). Philosophy does not emerge in a vacuum. While philosophical texts are often read as if they speak across time and space, philosophical ideas take their shape and substance, their concerns and preoccupations, within specific social, economic, and political contexts. Inevitably, then, philosophical ideas connect at some level with the historical conditions from which they arise. It is no coincidence that amidst the social disruption wrought by early capitalism, radical new ideas appeared about the proper ordering of government and society, ideas which challenged the absolutism of monarchs and championed notions of freedom and formal equality.45 During the seventeenth century, in particular, a new political imaginary gained 42  Walby (n 31). 43 Nancy Fraser, ‘After the Family Wage:  A Postindustrial Thought Experiment’ in Fraser, Justice Interruptus: Critical Reflections on the ‘Postsocialist’ Condition (Routledge 1997) 41; Jane Lewis, ‘The Decline of the Male Breadwinner Model’ (2001) 8(2) Social Politics 152. 44  Michele Barrett and Mary McIntosh, ‘The “Family Wage”: Some Problems for Socialists and Feminists’ in Terry Lovell (ed), British Feminist Thought in the Second Wave (Blackwell 1990) 134, 139. 45  Ellen Meiksins Wood and Neal Wood, A Trumpet of Sedition:  Political Theory and the Rise of Capitalism 1509–​1688 (Pluto Press 1997).

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currency, crafted by political theorists such as Thomas Hobbes and John Locke and framed in terms of an idealised ‘social contract’46 which seemed to offer a justification for political authority more attuned to the economic and social needs of a market-​based economy.47 At the heart of this new political framework (from which we can glean the origins of modern liberalism) was an insistence that all men are by nature equal and free to pursue their own interests and that political authority derives from the free consent of the governed.48 Such a vision contrasted radically with traditional notions of political power, predicated on the assumption that the authority of the monarch was absolute and divinely ordained and that the organisation of society simply reflected a status-​based, deeply hierarchical natural order. At first glance, such challenges to old assumptions about nature and the social order seem promising in terms of their potential to disrupt traditional notions of gender roles and relations. As seventeenth-​century feminist philosopher, Mary Astell, expostulated, ‘If all men are born free how is it that all women are born as slaves?’49 Unfortunately, and notwithstanding this visible tension, the emancipatory benefits of these innovative political ideas were not extended to women; indeed, the rise of liberal thought in the seventeenth and eighteenth centuries coincided with an intensification of gender discrimination (understood in the multiple senses of the word).50 Nevertheless, while the view that women were properly subject to the authority of men persisted, it did present problems for radical political thought. As Andrea Nye observes, ‘this was treacherous ground: if nature was allowed to dictate women’s subordination it might also dictate other forms of subordination’.51 Matters were further complicated because the main argument raised against social contract conceptions of political authority invoked the notion of patriarchal authority to defend the divine right of kings.52 How could social contractarians, at one and the same time, conjure up a state of nature in which everyone was assumed to be free and equal while simultaneously endorsing the gendered hierarchy of the family? The answer to this is complicated and, most scholars concur, not terribly satisfactory. In particular, while Hobbes and Locke both seemed to concede women’s equality in a state of nature,53 neither adequately explained how and why women go on to ‘agree’ to be subject

46  The term ‘social contract’ derives from Jean Jacques Rousseau’s essay of the same title (Du Contrat Social) published in 1762. However, social contract theory has earlier origins and is closely associated with the writings of Thomas Hobbes (Leviathan (London 1651)) and John Locke (Two Treatises of Government (London 1689)) a century before. 47  Wood and Wood (n 45) ch 1. 48  For a useful summary of the origins and key features of social contract theory, see GDH Cole, Introduction to Jean-​Jacques Rousseau, The Social Contract and Discourses (Dent & Sons 1973) xi, xvii–​xxii. 49  Mary Astell, Preface to the 3rd edition of Some Reflections upon Marriage (3rd edn, London 1706). 50  Teresa Brennan and Carole Pateman, ‘ “Mere Auxiliaries to the Commonwealth”: Women and the Origins of Liberalism’ (1979) Political Studies 163, 196–​7; Thomas Laqueur, Making Sex: Body and Gender From the Greeks to Freud (Harvard University Press, 1990) ch 5 (on changing ideas of gender difference in the Enlightenment period); and Merry Wiesner-​Hanks, Women and Gender in Early Modern Europe (CUP 2008) (on intensification of legal restrictions on women). 51  Andrea Nye, Feminism and Modern Philosophy (Routledge 2004) 52–​3. The institution of slavery presented similar problems for social contract theorists. 52  The most famous exponent of patriarchal theory in this period was Robert Filmer, whose Patriarcha (London 1680) was the focus of extended critique by Locke in the first of his Two Treatises. According to Filmer, God gave the first father (Adam) absolute monarchical power which was then passed on via procreation to Adam’s sons. Filmer also argued that Eve was placed by God in a position of natural subordination to her husband (see further Locke (n 46) I: II). 53  Hobbes considers the position of women in the state of nature in two key texts, De Cive (the English version entitled in the first edition Philosophical Rudiments Concerning Government and Society) (London 1651) and Leviathan (London 1651) in both of which he is at best ambiguous about the equality of the sexes. See further Gabriella Slomp, ‘Hobbes and the Equality of Women’ (1994) 42(3) Political Studies 441. Given limits of space and time, I concentrate primarily on Locke’s philosophical writing here.

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to male authority.54 Much feminist ink has been spilt probing the philosophical texts here55 and the best that can be said is that the logic and rationality upon which these great philosophers placed such value appears to have been sacrificed on the altar of expediency when it comes to accounting for women’s position.56 It is true that in his Two Treatises of Government, Locke tried to counter the patriarchal challenge by drawing a distinction between ‘political’ power, on the one hand, and ‘paternal’ power, on the other. Political power, he argued, resided in the sphere of ‘civil government’ and included, inter alia, ‘the right of making laws with penalties of death . . . and of employing the force of the community in the execution of such laws’.57 Paternal power encompassed the authority exercised by parents over their children and which arose from ‘that duty which is incumbent on [parents] to take care of their offspring during the imperfect state of childhood’.58 Because political and paternal authority were of different kinds, Locke’s argument ran, the family could not be presented as a model for political power, as Filmer and others suggested.59 Note that Locke speaks here of parents not fathers; mothers, he concedes, have ‘equal title’ to paternal power.60 At the same time, Locke is never in doubt that ultimate parental jurisdiction lies with fathers. This is not really explained other than in vague allusions to men’s natural superiority over women.61 It seems that Locke’s concept of parenting is already endowed with gendered features, creating distinct categories of ‘mother’ and ‘father’ which carry naturally differing roles. Social characteristics, in other words, have been inexplicably grafted onto the natural state. It is fathers, Locke observes, who ‘ordinarily’ have the power ‘to bestow their estates on those who please them best’.62 In this sly elision of paternal and property rights, Locke inadvertently reveals himself; for the freedom to acquire and dispose of property is a critical feature of his political vision, a natural right to which all in theory are entitled but which women, by virtue of their sex, social role, and, not least, legal status, are not in a position to exercise.63 Let us now begin to track the links between these emerging ideas about the proper ordering of government and the family and the material transformation of work relations during the rise of capitalism. First, one sees in Locke’s distinction between paternal and political power the re-​inscription of a much older divide between public and private spheres.64 The precise correlation of public and private with spatial and/​or conceptual boundaries is ambiguous; in some contexts, home or family signifies the realm of the private in contrast

54  There are significant differences between Hobbes and Locke in their portrayal of women’s position in the state of nature but ultimately neither theorist is really interested in troubling the notion that women should be governed by men (see further Brennan and Pateman (n 50)). 55  The classic feminist critique of social contract theory is Carol Pateman, The Sexual Contract (Polity Press 1988). On Hobbes and/​or Locke specifically, see Brennan and Pateman (n 50); Slomp (n 53); and Nye (n 51) ch 3. 56  See Nye (n 51) commenting that Locke ‘asserted women’s independence when it helped his case. He resorted to nature to preserve her domestic status’ (55). 57  Locke (n 46) II:I. 58  ibid II:VI:58. 59  ibid II:VI:71: ‘But these two powers, political and paternal, are so perfectly distinct and separate, and built upon so different foundations and given to so different ends . . .’ 60  ibid II:VI:52. 61  See eg ibid II:VII:82: ‘But the husband and wife, though they have but one common concern, yet having different understandings, will unavoidably sometimes have different wills too. It therefore being necessary that the last determination (i.e. the rule) should be placed somewhere, it naturally falls to the man’s share as the abler and stronger’ (emphasis added). 62  ibid II:VI:72. 63  Under the doctrine of coverture which governed married women’s status in England until the late nineteenth century, married women could not own, receive, or transfer property as, on entering marriage, their legal personhood merged with and became absorbed in that of their husbands. Thus, when Locke was writing about property-​ owning, it was within a frame of legal reference in which married women could not hold property. See generally William Blackstone, Commentaries of the Laws of England (Clarendon Press 1765–​9), Vol 1 ch XV. 64  On the ‘ancient origins’ of the public/​private dichotomy, see eg Margaret Thornton, ‘The Cartography of Public and Private’ in Thornton (ed), Public and Private: Feminist Legal Debates (OUP 1995) 2.

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to the public world of market or commerce; in others, private relations encompass both home and market (‘private enterprise’) while the relationship between individuals and the state is designated public.65 Thornton, among others, argues that ‘public’ and ‘private’ are best understood not as distinct realms or sites but as a particular mode of thinking which permeates political and legal thought, serving multiple, sometimes conflicting, purposes.66 Among those purposes, designations of public and private are often used to signify difference and/​or to assign value.67 Locke’s implicit invocation of the public/​private divide, expressed in his distinction between political and paternal power, serves both functions: it constitutes family and society/​state as different in kind and thereby allows the latter, not the former, to seize the attention of political philosophy. The family, and relations and activities therein, are placed outside the sphere of political contemplation. How does wage labour fit into this picture? Locke famously viewed labour as self-​owned; the capacity to work constituted a form of property which was alienable just like any other market commodity. Locke in particular placed great theoretical weight on the notion that ‘every man has “property” in his own “person” ’68 as this formed the justification for property-​owning more generally: ‘The “labour” of his body and the “work” of his hands we may say are properly his. Whatsoever then he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property.’69 Labour, then, was a source of value. The process of ‘mixing’ one’s labour with the resources bestowed by Nature produced something the labourer was entitled to appropriate; similarly, if one sold one’s labour to another and that labour was applied in this way, the thing produced would belong to the person who had purchased the labour. Locke’s conception of wage labour was necessarily contractual because it was only through voluntary agreement that one’s labour could be appropriated by another: ‘A free man makes himself a servant to another by selling him for a certain time the service he undertakes to do in exchange for the wages he is to receive.’70 This contractual model was only partially mirrored in law. Writing less than a century later, Blackstone made clear that the master and servant relationship, while created by contract, was far from determined by free agreement in all its particulars.71 Once the service relationship came into being, the obligations between the parties—​and these varied depending on the type of service contracted for72—​derived from the formal status the parties had assumed and the law now determined. Contract was merely the mechanism for bringing into being a status-​governed relationship.73 Although the later stages of industrialisation witnessed an intensification of freedom of contract rhetoric in political discourse, it was not until the late nineteenth century that the statutory framework governing master and servant law was dismantled.74 Even then, the status elements of the service relationship were not so much displaced by as submerged within an overarching contractual frame incorporating common law implied terms.75 Indeed, the retention of a significant status 65  Frances Olsen, ‘The Family and the Market: A Study of Ideology and Legal Reform’ (1983) 96 Harvard Law Review 1497. Note that within law, the term ‘private law’ generally encompasses both home and market while ‘public law’ relates to the sphere of government. 66  Thornton (n 64). 67 ibid. 68  Locke (n 46) II:V:26. 69 ibid. 70  Ibid II:VII:85. 71  Blackstone (n 63) Vol 1 ch XIV. 72  Blackstone identifies four kinds of service relationship:  ‘menial’ or ‘domestic’ servants; ‘apprentices’; ‘labourers’; and ‘superior servants’—​ibid I. 73  The situation regarding menial servants must be further qualified as Blackstone comments that: ‘all single men between twelve years old and sixty, and married ones under thirty years of age, and all single women between twelve and forty, not having any visible livelihood, are compellable by two justices to go out to service’ (ibid I:1). In other words, working people could be forced into contracting. 74  Deakin and Wilkinson (n 8) 61–​86. 75  Alan Fox, Beyond Contract: Work, Power and Trust Relations (Faber & Faber 1974) 181–​90.

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element to the labour contract proved critical to the transition to a mature industrial society, providing a means of disciplining workers and facilitating the restructuring of traditional working habits.76 Thus, notwithstanding that wage labour took a contractual form, the nature of the relationship was (and arguably remains) essentially one of subjection: ‘there can be no employment relation without a power to command a duty to obey’.77 Let us turn now to marriage in social contract theory: this too was conceived as contractual: ‘conjugal society’ Locke observes ‘is made by a voluntary compact between man and woman’.78 Moreover, like the labour contract, marriage created a relationship of subjection: ‘it can be no other subjection than what every wife owes her husband’.79 What, then, of a wife’s labour? In his discussion of the property-​producing value of labour, Locke makes no formal distinction between men and women’s labour although not infrequently he speaks of the putative property owner as a ‘man and his family’.80 His assumption is that men acquire property to support and benefit their families but that families themselves lie beyond the sphere of production and property acquisition, constituting a separate ‘little commonwealth’ comprising ‘a master of a family with all these subordinate relations of wife, children, servants and slaves’.81 In this account, women and the labour they typically perform is implicitly distanced from productive activities, consigned to a separate and autonomous realm of activity with its own peculiar mode of governance and social order. The reality of the times was rather different. At the time Locke was writing (the late seventeenth century), the process of separation of economic production from the household was still at a relatively early stage. Most women of the labouring classes engaged not just in what we would now perceive as ‘domestic’ duties but also in the family business or trade; they were a visible part of economic life.82 The model of work and family described by Locke was very much an ideal, supporting his vision of a property-​owning society of atomic individuals contracting freely in the marketplace. Locke himself was employed by the Earl of Shaftesbury who was strongly aligned with Parliamentarians in seventeenth-​ century conflicts with the Crown: many argue that Locke’s Two Treatises was written as a political manifesto for parliamentary government. Thus, the interests to which Locke addressed himself were not those of working people but the propertied classes; Locke spoke to the concerns of property accumulators. We have seen that during the course of the seventeenth century and thereafter, opportunities for women to be economically independent progressively diminished.83 This was part of a broader process of restructuring of work relations under industrial capitalism but was also a product of working-​class resistance to the deleterious consequences that industrialisation visited upon working lives. Working men challenged women’s employment in part because women’s wages undercut men’s but also because the quality of their lives and the well-​being of their families were seriously threatened by the harsh material conditions in which working people lived and worked.84 By the nineteenth century, Locke’s domestic ideal was one to which all consciously aspired85 and an archetype of the property-​owning individual and his family cut from the cloth of social contract theory was visibly embodied in the lives of a burgeoning middle class. This ‘possessive individual’, as CB MacPherson

76  ibid; see also Deakin amd Wilson (n 8) 70–​1. 77  Kahn Freund (n 5) 7. 78  Locke (n 46) II:VII:78. 79  ibid I:V:48. 80 ibid. 81  ibid II:VII:86. 82  Anne Laurence, Women in England 1500–​1760 (Phoenix 1994) chs 8 and 9. 83  ibid ch 18; Hill (n 17) ch 14. 84  Jane Humphries, ‘Class Struggle and the Persistence of the Working-​Class Family’ (1977) 1(3) Cambridge Journal of Economics 241. 85  ‘By the middle of the nineteenth century, to have a wife as a full-​time housewife, had become the goal for husbands of all respectable classes’—​Pateman (n 55) 130.

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describes him, was proprietor of his own person and capacities, independent of the will of others and entering agreements only insofar as they served his own interests.86 At the same time, as MacPherson goes on to point out, the theoretical assumptions underpinning the possessive individual (which MacPherson derives primarily from Hobbes and Locke) were undermined in practice by the reality of capitalist exploitation ‘in which full individuality for some was produced by consuming the individuality of others’.87 For MacPherson, possessive individualism was flawed because the very conditions which gave rise to this ideal eventually destroyed it by eroding social cohesion (through the development of class consciousness) and (re)embedding inequality in social relations.88 He concludes: ‘the greatness of seventeenth century liberalism was its assertion of the free rational individual as the criterion of the good society; its tragedy was that this very assertion was necessarily a denial of individualism to half the nation’.89 For MacPherson, the ‘half the nation’ denied was the exploited working class who failed to benefit from the liberal promise of the social contractarian vision. Yet, how much more starkly denied were women, who struggled even notionally to meet the criteria for possessive individualism. Women were not self-​owners; they were effectively the property of their husbands, reflected not just in Locke’s imaginary of ‘the little commonwealth’ of subordinate relations but also in the common law doctrine of coverture by which a woman’s person was absorbed in that of her husband at the point of marriage, her basic civil rights, including her right to contract or hold property, wholly extinguished.90 Even a woman’s body belonged to her husband conferring a right of sexual access regardless of her will or preference.91 Together these laws ensured that a woman’s labour was at the disposal of her husband and master; it was, for all intents and purposes, his. Although these patriarchal laws dated back to the Norman conquest, their practical impact intensified as changes in the social and economic organisation of labour further weakened women’s status and autonomy.92 Women’s gradual exclusion from forms of employment previously open to them, along with the collapse of the family economy heralding the spatial separation of productive and reproductive activities, generated new social conditions for the operation of coverture laws. In particular, workers’ increasing dependence on wage labour sat uneasily alongside a legal regime which denied women the right to their own earnings. It is true that in practice the effects of coverture were primarily the concern of the propertied classes. As Joan Perkin observes, working women’s earnings, though technically their husband’s property, would go directly into feeding the family; moreover, working-​class men were without the means to enforce the law.93 At the same time, there is some contemporary speculation that the laws governing married women’s earnings actively discouraged women from engaging in paid work.94 It is time now to pull the threads of the argument together: how does all this relate to the distinction between paid and unpaid labour and the exclusion of the latter from the field of labour law? We have first a process of economic and social restructuring in which productive and reproductive activities become spatially and conceptually separated from one another and firmly entrenched along gender lines. The social and economic consequences

86  CB MacPherson, The Political Theory of Possessive Individualism (OUP 1962) 263. 87  ibid 261. 88  ibid  272–​7. 89  ibid 262. 90  See n 63. 91 Barbara Leigh Smith Bodichon, A Brief Summary of the Most Important Laws Concerning Women (Chapman 1854). 92  Hill (n 17) 201–​2. Their impact would also have been more widely felt when marriage was legally regularised in the mid-​eighteenth century—​ibid 202–​20. 93  Joan Perkin, Women and Marriage in Nineteenth Century England (Routledge 1989) 6. 94  Hill (n 17) 201–​2.

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of this process for working people are generally bad, for women doubly so. Then we see the emergence of a political philosophical outlook which promotes the rights and freedoms of the possessive individual, self-​owning, acquisitive and economically driven. This is a vision in which economic activity becomes the purpose of political power and economic success the measure of political worth. At the same time, the sphere of politics is formally distinguished from that of the family, captured in Locke’s distinction between political and paternal power. The distinctiveness of these realms is essential to Locke’s argument for it explains why the natural hierarchy governing family life should not also serve as a model for political governance:  ‘that the power of a magistrate over his subject may be distinguished from that of a father over his children, a master over his servant, a husband over his wife . . .’95 Women’s subjection to men within the construct of the family is taken outside the realm of political consideration; the labour they perform therein formally distanced from the economic world of property accumulation. The actual work that they do in the home may be very productive; they may weave or craft, cook or sew, plant or harvest. However, the social relations which govern this productive process are distinct from those that govern the market; they do not command a wage and are not viewed as economic in character. The construction of work and family as separate and distinct realms of governance presents no difficulties for men who straddle the two spheres with ease. Women, however, struggle and are increasingly encouraged to confine themselves to hearth and home. It is here that we begin to glimpse the interdependence of the social contractarian ideal and a particular gendered order which denies women the privileges of free individuals, placing them in a formal relation of subjection to men. Carol Pateman explains this by invoking the notion of the ‘sexual contract’. She argues that the original social contract of classic contract theory, in which free men come together and agree to be governed in their collective interests, presupposes a sexual contract taking the form of a ‘patriarchal’ or ‘sex-​right’ which allows men to exercise power over women.96 This power is perceived as necessary not least because marriage and primogeniture served as a primary mechanism for the accumulation and transmission of property rights within families.97 The sexual contract, Pateman argues, is a ‘repressed’ dimension of social contract theory but one which nevertheless explains the many ambiguities and confusions which inhere in social contractarian accounts of women’s social and political status. Critical to Pateman’s argument is the way in which sex difference is utilised to explain and justify capitalist social relations: ‘capitalists can exploit workers and husbands can exploit wives because workers and wives are constituted as subordinates through the employment contract and the marriage contract’.98 In other words, although contract is conceived as a means of expressing and assuring individual freedom, it actually serves as a mechanism for the creation of relations of domination and subordination.99 The worker by agreeing to sell his labour places himself in a position of subjection to his master, the wife by agreeing to marriage becomes subject to her husband; her person is his property, the worker’s labour the property of his master. It is property, not contract, which is the critical concept here. There is yet more to this story. What makes a man ‘free’ to sell his labour? What allows the capitalist to command a worker’s time exclusively and without encumbrance? As Pateman, among many modern commentators, points out, ‘the employment contract presupposes the marriage contract. Or to make this point another way, the construction of the 95  Locke (n 46) II:I:2. 96  Pateman (n 55). 97  Perkin (n 93) 51–​3. 98  Pateman (n 55) 8. 99  ibid 118: ‘contract is the specifically modern means of creating modern relationship of subordination, but because civil subordination originates in contract, it is presented as freedom’.

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“worker” presupposes that he is a man who has a woman, a (house)wife to take care of his daily needs.’100 The new ‘rhythms of industrial life’101 demanded not only that workers be disciplined into more regimented ways of working (in contrast to the irregular, subsistence-​ governed rhythms of pre-​industrial life) but that as much of workers’ time as could be provided was at the disposal of masters. Thompson puts it thus: ‘What we are examining here are not only changes in manufacturing technique which demand greater synchronisation of labour and a greater exactitude in time-​routines in any society . . . we are concerned simultaneously with time-​sense in its technological conditioning and with time-​measurement as a means of exploitation.’102 The primacy thus placed on workers’ time required a form of social organisation which not only maximised their availability to work but also ensured that the labour so vital to productive activities was reproduced on a daily and generational basis. Social reproduction, ‘the social processes and labour that go into the daily and generational maintenance of the working population’,103 became the province of the family and the responsibility primarily of women. Their domestic labour became vital to the process of paid labour exploitation; their sexual difference both the explanation and justification for their distinct and undervalued role. Excluded from the world of possessive individuals, confined to a sphere of ‘natural’ subjection, women’s unfree status became formally enshrined in the grammar and assumptions of philosophical and political thought.

4.  Labour Law and the Future of the Paid Work Paradigm A close interrogation of the material origins of and philosophical justifications for the distinction between paid and unpaid labour, manifest in the spatial and conceptual separation of productive and reproductive activities and embedded, inter alia, in labour law theory and discourse, reveals that the distinction is not natural or inevitable but constructed and correspondent with the particular configuration of social and work relations which emerged with industrial capitalism. In its origins, justifications, and applications, the paid/​unpaid work distinction is also deeply gendered. Should we be worried that our discipline remains significantly reliant upon a distinction of problematic origins, dubious rationality, and systematically gender-​disadvantaging effects? The answer is yes and for a number of pressing reasons properly the concern of labour law scholars. Chief among these is that the historically produced, economically compelled separation of work and family is breaking down, bringing into sharper focus their hitherto obscured interdependence.104 The last half century has witnessed a period of major economic restructuring which Fraser describes as ‘the death throes of the old industrial gender order with the transition to a new postindustrial phase of capitalism’.105 Features of this brave new world include the steep decline of manufacturing, the rise of flexible and precarious forms of work, the technologically driven transformation of working practices, the demise of the family wage, the shrinking of the welfare state, and the increasing participation of women in paid labour, the latter generating a policy demand for the reconciliation of work and family responsibilities.106 The drive to 100 ibid 131. This, of course, is the ‘male breadwinner/​ female caregiver model’ considered in text accompanying n 43. 101  Thompson (n 28) 369. 102  ibid 382. 103  Fudge (n 10) 263. 104  For further elaboration, see Conaghan (n 2) 26–​30. 105  Fraser (n 43) 42. See also Fudge (n 10) and Leah Vosko, Managing the Margins (OUP 2010) (tracking the demise of the ‘old’ gender contract). 106  Conaghan (n 2)  27; on economic transformation generally, see essays in Joanne Conaghan, Karl Klare, and RM Fischl (eds), Labour Law in an Era of Globalization (OUP 2003) especially Karl Klare, ‘The Horizons of Transformative Labour and Employment Law’ and Massimo D’Antona, ‘Labour Law at the Century’s End:  An Identity Crisis’.

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enhance productivity and economic competitiveness, aligned with the dwindling returns provided by social insurance, demand that women (as well as other ‘dependants’) should actively participate in paid labour.107 The old normative order in which the male breadwinner was expected to engage in paid work while the female caregiver attended exclusively to domestic responsibilities has buckled under the weight of new economic and social priorities. The sexual contract implicit in social contractarian thought is collapsing.108 Gendered social arrangements which emerged from and took particular form within the context of industrialisation no longer serve the purpose of resolving the incipient tension between the imperatives of production and reproduction.109 The emergence of work/​life conflict in modern labour law is both a symptom of and response to the decline of the old sexual contract. While traditionally in labour law work and family were seem as antithetical, as two separate spheres which occasionally collided usually when women’s employment was at issue, with wider social and economic changes work and family are now visibly interpenetrating; their gender-​segregated boundaries are becoming blurred (witness the ‘feminisation’ of labour), their activities increasingly co-​mingling.110 This is not just a product of the huge increase in female workforce participation over the last few decades,111 generating new pressures for men to assume a greater share of domestic labour. It is also a result of unprecedented advances in communications and other forms of information technology, enabling work to be carried on outside a workplace under the continued surveillance and control of employers.112 The old workplace—​the factory, the mill, the office—​is becoming redundant, the spatial separation of production and reproduction no longer economically required. We are not necessarily seeing the end of gender-​based disadvantage in the social organisation of work—​recall that a sexual division of labour pre-​existed the economic transition to capitalism—​but we are seeing the end of the old gender order.113 This brings both opportunities and risks. On the one hand, it makes it possible for women to aspire to the liberal promise, to become self-​owning property accumulators through the commodification and alienation of their labour. On the other hand, it exposes them—​and workers more broadly—​to new forms of subjection and exploitation114 while, at the same time, throwing into serious question the adequacy of social reproductive arrangements which are reliant on the traditional family. In particular, with the demise of the old gender contract, the problem of care looms large. The social impact of global economic restructuring on women’s capacity to engage in unpaid domestic labour along with the contraction of social care provision and rising life expectancy has generated a growing care deficit, leading to the increasing commodification and privatisation of care work supported by the transnational movement of workers

107  On the development of labour activation policies, see Amir Paz Fuchs, Welfare to Work: Conditional Rights in Social Policy (OUP 2008) ch 3; on their gender implications, see Joanne Conaghan, ‘Gendered Aspects of Activation Policies’ (FLJS 2009) http://​www.fljs.org/​sites/​www.fljs.org/​files/​publications/​Conaghan.pdf. 108  Pateman (n 55). 109  See text accompanying nn 100–​103. 110  Joanne Conaghan and Kerry Rittich, ‘Interrogating the Work/​Family Divide’ in Conaghan and Rittich (eds), Labour Law, Work and Family (OUP 2005) 1. 111  This is a global trend, albeit varying in intensity depending on country/​region—​ILO, Women at Work—​ Trends 2016 (ILO 2016) especially 6–​7. 112  A 2016 TUC study charts the rise of homeworking in the context of the advances in information and communication technologies—​‘Home-​Working up by a Fifth over the Last Decade, TUC Analysis Reveals’, TUC (20 May 2016)  accessed 17 November 2017. 113  Fudge (n 10); Vosko (n 105). 114  See eg Judy Fudge and Kendra Strauss, ‘Migrants, Unfree Labour and the Legal Construction of Domestic Servitude’ in Cathryn Costello and Mark Freedland (eds), Migrants at Work (OUP 2014) 160.

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to meet the care needs of the (more) privileged.115 The breakdown of social reproduction in the post-​industrial world connects to a wide range of pressing concerns relating to human capabilities, from working conditions and quality of life, to education, health and well-​ being, wealth and income inequality, social and cultural cohesion. Women are no longer in a position to bear the weight of such problems, although to varying degrees they still do.116 Meanwhile, ‘new’ kinds of labour exploitation demand attention, from the legal (re)production of precarity117 to the regulatory and ethical complexities of global care chains,118 as novel configurations of race, sex, and class-​based inequality take shape and form. The concern here is not just with developing appropriate regulatory norms to address the many and complex problems arising from the breakdown of the old gender contract, but to ensure too that we are not so invested in a disciplinary frame which has been historically blind to gendered operations as to fail to recognise that a new gender contract is currently under construction. What form might such a contract take? Nancy Fraser suggests that to resolve the tension between productive and reproductive needs while at the same time ensuring gender equity, we must adopt a ‘universal caregiver’ model.119 Work relations must be reconfigured so that women’s current life patterns (in which balancing work and family responsibilities tend to be central) become the norm for everyone.120 This she argues is the only solution which will ensure both gender equality and go some way to meet the care deficit, particularly in a context in which people are living longer, pension pots are shrinking, and the modern state no longer can or will assume a significant share of responsibility for care provision. Nicole Busby makes a similar intervention arguing that rather than responding to the care dilemma by extending employment rights to carers,121 we should promote caring rights for workers.122 Both Fraser and Busby foreground social reproductive needs in their efforts to re-​imagine and/​or reconstruct the world of work. This becomes their normative and regulatory starting point; but what kind of labour law might thus ensue? Busby sketches an outline of a legal right to care predicated on making carer status a protected ground of discrimination and imposing on employers a duty of reasonable accommodation.123 Other scholars have proposed stricter regulation of working time; for example, Vicki Schultz and Alison Hoffman make the case for a shorter working week to ensure care work is performed and fairly distributed.124 This latter suggestion also resonates with broader concerns about job contraction in the context of technological advances in robotics and artificial intelligence.125 115  Again, there is a burgeoning feminist literature on the political economy of care. See especially Rianne Mahon and Fiona Robinson (eds), Feminist Ethics and Social Policy:  Towards a New Political Economy of Care (University of British Columbia 2011); Shahra Razavi and Silke Staab (eds), Global Variations in the Political and Social Economy of Care (Routledge 2012). 116  Debbie Budlender (ed), Time Use Studies and Unpaid Care Work (Routledge 2010). 117  Rosemary Hunter, ‘The Legal Production of Precarious Work’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women and the New Economy (Hart 2005) 283; Bridget Anderson, ‘Migration, Immigration Controls and the Fashioning of Precarious Workers’ in Elena Jurado and Grete Brochmann (eds), Europe’s Immigration Challenge: Reconciling Work, Welfare and Mobility (Tauris 2013) 185. 118  Arlie Hochschild, ‘Global Care Chains and Emotional Surplus Value’ in Will Hutton and Anthony Giddens (eds), On the Edge: Living with Global Capitalism (Jonathan Cape 2000) 131. 119  Fraser (n 43) 59. 120  ibid 61. 121  The ‘caregiver parity model’ in Fraser’s terminology (ibid 55–​8). 122  Nicole Busby, A Right to Care: Unpaid Care Work in European Employment Law (OUP 2011). 123  ibid  182–​8. 124  Vicki Schultz and Allison Hoffman, ‘The Need for a Reduced Workweek in the United States’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women and the New Economy (Hart 2005) 131. 125  Zoe Williams, ‘If Robots Are the Future of Work, Where Do Humans Fit In?’, The Guardian (24 May 2016) accessed 17 November 2017.

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Making social reproduction a point of entry for labour law does not, however, entail extending existing labour laws to unpaid domestic workers, as is sometimes mistakenly assumed. This is no call for ‘a uniform system of work regulation’126 applying to anyone engaged in ‘work’. The very point is to highlight that work relations take diverse forms, only some of which find recognition within the paid work paradigm of current labour law.127 As Zatz points out, with unpaid domestic labour there is no formal employer or market relationship and no proper demarcation of working time.128 Indeed, the latter feature contributes to the legal problematisation of paid domestic work, particularly in a live-​in context.129 On the other hand, and as we have seen in our exploration of the material and philosophical underpinnings of the paid/​unpaid labour distinction, there are certain formal resonances which unite the marriage and the labour contract: they are both conceived as the product of agreement; they both create relations of subjection; and, whether we recognise it or not, they are both sites of labour activity which together produce economic value. Each is, or certainly has been, indispensable to the other; they are co-​dependent. To require that labour law take account of unpaid domestic labour is simply to acknowledge this co-​dependence in the context of the wider economic and social eco-​structure—​ and to attend to the implications—​normative and conceptual—​to which it gives rise. To some extent this is already occurring in labour law scholarship. When Brian Langille calls for a new ‘constituting narrative’ for labour law, drawing upon Amartya Sen’s concept of human capabilities to connect labour law directly with the advancement of human freedom (understood in a rich developmental sense to encompass ‘the mobilization and deployment of human capital’),130 he is crafting a normative foundation for labour law in which social reproduction—​the social and labour processes which go into nurturing human capabilities—​must be central. The risk is, however, that it will continue to be overlooked. It is here that gender comes back into play, not as a social justice concern (although it is clearly important to continue to engage with gendered aspects of social injustice) but as an analytical category131 which casts particular light on the social organisation of work. Sex almost invariably features in any society’s division of labour and it is sex, or more broadly gender, which enables us to see and trace both the historical divergence of productive and reproductive work, paid and unpaid labour, and its contemporary convergence in the context of the radical economic and social restructuring which is the hallmark of post-​industrialism. My primary focus in this chapter has been to explore the process of divergence and to probe its seepage into the conceptual and normative architecture of political and legal thought. By excavating the material and philosophical roots of the paid/​unpaid work distinction, I have sought to show that the current conception of ‘labour’ which underpins labour law is historically contrived and not universally prescribed; therefore, our continued allegiance to a paid work paradigm is neither necessary or inevitable. In the final section, I have offered some reasons why it might be timely to revisit that allegiance. No doubt an opportunity to pursue that line of thinking further will arise in due course.

126  Zatz (n 3) 248. 127  Other kinds of labour arrangements which, for various reasons, struggle to find a foot in labour law include volunteer work, unpaid internships, prison work, workfare (compelled labour in exchange for welfare benefits), and live-​in domestic work, some of which are discussed in ibid. 128  ibid  235–​6. 129  Guy Mundlak and Hilar Shamir, ‘Bringing Together or Drifting Apart: Targeting Care Work as “Work like no Other”‘ (2011) 23 Canadian Journal of Women and Law 289. 130  Brian Langille, ‘Labour Law’s Theory of Justice’ in Davidov and Langille (n 3) 101, 112. 131  On gender as an analytical category, see Conaghan (n 12).

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16 Social Inclusion for Labour Law: Meeting Particular Scales of Justice Einat Albin* 1. Introduction In 1998, when the National Minimum Wage Act was enacted in Britain, adopting the category of ‘workers’, a broader category than ‘employees’ who are covered by the contract of employment, it was celebrated as an act of social inclusion. Tony Blair said that ‘the best defence against social exclusion is having a job’,1 and the perception of the then New Labour government was that having a job, together with the provision of minimum wages, was sufficient to fulfil the idea of social inclusion.2 With social inclusion being the ‘keyword of our age’,3 and with various scholars also arguing that it is a central foundation of labour law,4 one should question what the normative conception of social inclusion as a foundation of labour law should be. Surprisingly, this question has not yet been answered in the labour law literature and it is the task of this chapter to engage with it. Social inclusion theory has developed from the 1970s onwards, transforming the emphasis that previous theories have placed on those living in poverty, those coming from poor educational backgrounds, those suffering from discrimination, and those lacking stable employment and employment opportunities, while shifting the focus from their material deprivation to their inability to fully exercise their social, economic, and political rights as citizens.5 The focus has shifted to the idea of citizenship, with labour being one of its central aspects. Most literary contributions agree as to the importance of having a job accompanied by labour rights. Scholars have asserted that labour law fulfils the idea of social inclusion through the wages it provides, its prevention of discrimination, its limiting of dismissals and control of hours of work in order to enable a balance with other aspects of *  I want to thank Guy Davidov, Amir Paz-​Fuchs, and the editors of this book for comments on earlier drafts. Thanks are also due to Yuval Bresler for his excellent research assistance. 1  ‘Full Text of Tony Blair’s Speech on Welfare Reform’, The Guardian (10 June 2002)  accessed 5 October 2017. 2  Ruth Lister, ‘From Equality to Social Inclusion: New Labour and the Welfare State’ (1998) 55 Critical Social Policy 215. 3  Nancy Fraser has argued that social exclusion, the counterpart of social inclusion, is ‘the keyword of our age’ because it is widely used in many countries and regions throughout the world, there is an abundance of policy-​ oriented literature on the subject, the British government has established a ‘Unit on Social Exclusion’, the EU has adopted a policy aimed at eradicating poverty and social exclusion, and other international bodies have placed it on their agendas, while academic institutions are opening centres to research the topic. Nancy Fraser, ‘Injustice at Intersecting Scales: On “Social Exclusion” and the “Global Poor” ’ (2010) 13(3) European Journal of Social Theory 363. The ILO has been involved in social inclusion policies as well, including its Decent Work and the Strategies and Tools against Social Exclusion and Poverty (STEP) programmes. 4  Hugh Collins, Employment Law (OUP 2003) 22; Guy Davidov, A Purposive Approach to Labour Law (OUP 2016)  62–​4. 5  Commission of the European Communities, ‘First Report on Economic and Social Cohesion’ (1997); Mike Geddes, ‘Tackling Social Exclusion in the European Union? The Limits to the New Orthodoxy of Local Partnership’ (2000) 24(4) International Journal of Urban and Regional Research 782, 782–​3. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 16 © Einat Albin 2018. Published 2018 by Oxford University Press.

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life, and its ability to improve one’s development within society, and to further democracy and collective action.6 Within this current economic order where some citizens have benefited from increased incomes and improved living conditions, while others have lost and are placed at a disadvantage, it is a sound argument to say that labour law is an important mechanism for fulfilling the idea of such inclusion.7 The relationship between social inclusion and labour law is more cohesive, however, than labour law fulfilling the aims of social inclusion. This is because social inclusion theory has been offered as a sound reasoning for labour laws as well. Indeed, social inclusion has been proposed in the literature as a reasoning for equality law,8 for the adoption of intermediate categories that lead to the inclusion of further groups of workers within labour law’s scope, while providing them with a set of rights,9 and also for worker-​protective legislation that ensures that social inclusion is not solely about having a job, but also about social rights.10 However, within this stream of literature the normative account of social inclusion is unclear, an issue that poses various problems in the assessment of social inclusion as a foundation of labour law, particularly given numerous studies that have been done in recent years showing how a large number of workers are left fully or partially excluded from the scope of labour law.11 These studies point to a close correlation between those who are partially or fully excluded from the scope of labour law, or those experiencing unfavourable inclusion, and those who are excluded from society due to poverty, poor education, or harsh discrimination—​exactly the group which theories and policies of social inclusion aim to address.12 Given that inclusion within labour law also has direct effects on livelihood, while exacerbating other processes of exclusion, such as those related to basic welfare and social security rights and to one’s identity,13 one can understand the claims that labour law does not fulfil the idea of social inclusion (at least for those who need it most), and perhaps even drives towards exclusion. Indeed, the different viewpoints on social inclusion as a foundation result from variations in the normative idea of social inclusion. Hugh Collins, for example, said that the objective of social inclusion is to secure a minimal level of welfare for everyone.14 Jeremias Prassl and I, however, have adopted a broader notion of social inclusion that also entails the provision of a voice to workers, and personal choice.15 Such variations of the notion are not only found in the labour law literature. Studies on social inclusion show that it has 6  Vicky Shultz, ‘Life’s Work’ (2000) 100 Columbia Law Review 1881; Davidov (n 4). 7  This was also the approach taken by the Observatory on National Policies to Combat Social Exclusion. See Table 1 in G Room et al, ‘Second Annual Report of the European Community Observatory on National Policies to Combat Social Exclusion’ Commission of European Communities; Gerry Rodgers, Charles Gore, and Jose B Figueiredo (eds), Social Exclusion:  Rhetoric, Reality, Responses (ILO, International Institute for Labour Studies 1995); Jordi Estivill, Concepts and Strategies to Combat Social Exclusion (ILO 2003). 8  Hugh Collins, ‘Discrimination, Equality and Social Inclusion’ (2003) 66 Modern Law Review 16. 9  Brendan Burchell, Simon Deakin, and Sheila Honey, ‘The Employment Status of Individuals in Non-​ Standard Employment’, Department of Trade and Industry EMAR publications No 6 (1999) accessed 5 October 2017; Davidov (n 4). 10  Lister (n 2). 11  Numerous studies have pointed to the full or partial exclusion of various groups of workers from the scope of labour law, such as those receiving minimal levels of rights, included in the category of precarious workers. It is beyond the scope of this chapter to mention these studies. 12  This can be learned from numerous studies on precarious workers, on migrant workers, and on the working poor. 13  Charles Gore, ‘Introduction: Markets, Citizenship and Social Exclusion’ in Rodgers, Gore, and Figueiredo (n 7) 1, 15. 14  Collins (n 4) 22. 15  Einat Albin and Jeremias Prassl, ‘Fragmenting Work, Fragmented Regulation: The Contract of Employment as a Driver of Social Exclusion’ in Mark Freedland et al (eds), The Contract of Employment (OUP 2016).

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both broad and narrow definitions,16 and, as Atkinson has said, the term ‘seems to have gained currency in part because it has no precise definition and means all things to all people’.17 Adopting a normative account of the term becomes ever so complex when a globalised perspective is added. First, ideas of justice vary between national contexts, and the Eurocentric framing of social inclusion has been in dispute. It has been argued, for example, that theories of social inclusion are not necessarily fit for the global South.18 Secondly, questions regarding social inclusion go beyond national citizens and include policies regarding migrants crossing borders, therefore requiring a theory of social inclusion that can also embrace that movement. Here, too, we can see the tensions between the inclusion of these migrants and exclusionary practices that leave them in precariousness.19 In this chapter I would like to offer an account of social inclusion that aims to capture the lives of various workers, including those who are most in need of such inclusion, while considering both the local and global scale. Based on Nancy Fraser’s Scales of Justice,20 I claim that social inclusion should entail recognition, redistribution, and representation, stressing that these scales of justice are generally in line with both social inclusion theory and labour law. I offer an integrated theory of scales of justice and labour law, tailored for our current purposes. The proposed normative account for social inclusion in labour law opens a way to think of situations where workers are fully excluded from labour law, such as informal workers,21 as well as about more subtle exclusions that fall within what Amartya Sen has termed ‘unfavourable inclusion’.22 It is these subtler exclusions that this chapter uses as examples, in order to emphasise the contribution the proposed account makes in comparison to other accounts, particularly that of minimal welfare. According to Sen, ‘unfavourable inclusion’ refers to instances where unfavourable terms of inclusion and adverse participation cause danger, such as when there are exploitative conditions of employment or deeply unequal terms of social participation.23 Three examples of situations where labour law includes workers but such inclusion is exclusionary in essence are discussed—​‘unfavourable coverage’, ‘unfavourable welfare’, and ‘unfavourable humanity’. By using the scales of justice account I reveal how ‘unfavourable coverage’, ‘unfavourable welfare’, and ‘unfavourable humanity’ all create deeply unequal terms of participation for workers who are at least partially covered by labour law. The discussion also points to the potentials of the proposed account to offer a compass to address these deep and unequal terms. Let me elaborate on these forms of unfavourable inclusion. The first is ‘unfavourable coverage’, where the coverage of labour law is minimal under deeply unequal terms of 16  Gore (n 13); Hilary Silver, ‘Reconceptualizing Social Disadvantage: Three Paradigms of Social Exclusion’ in Rodgers, Gore, and Figueiredo (n 7) 57. 17  AB Atkinson, ‘Social Exclusion, Poverty and Unemployment’ in AB Atkinson and John Hill (eds), Exclusion, Opportunity and Employment (Centre for Analysis of Social Exclusion 1998) 1. 18  Vilmar E Faria, ‘Social Exclusion and Latin American Analyses of Poverty and Deprivation’ in Rodgers, Gore, and Figueiredo (n 7) 117. 19  Judy Fudge, ‘Precarious Migrant Status and Precarious Employment: The Paradox of International Rights for Migrant Workers’ (2012–​13) 34 Comparative Labor Law and Policy Journal 95; Virginia Mantouvalou, ‘Human Rights for Precarious Workers:  The Legislative Precariousness of Domestic Labor’ (2012–​13) 34 Comparative Labor Law and Policy Journal 133. 20  Nancy Fraser, Scales of Justice:  Reimagining Political Space in a Globalizing World (Columbia University Press 2010). 21  Informal workers have been the target of the ILO’s Decent Work programme, which aims to address, among other things, social exclusion. The normative concept of social inclusion on the basis of Fraser’s scales of justice is, I believe, also very much relevant for thinking of this programme. 22  Amartya Sen, ‘Social Exclusion:  Concept, Application and Scrutiny’, Asian Development Bank Social Development Papers No 1 (2000) accessed 5 October 2017. 23  ibid.

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participation. An example that will be discussed in this chapter is domestic workers. In most countries this group of workers is entitled to minimum wages, but is generally excluded from hours of work regulation, as well as from many other labour rights. Their working conditions are also controlled by immigration laws. It is a situation where the deeply unequal terms of participation as set by the law lead to social exclusion. The second is ‘unfavourable welfare’. This occurs when the terms of welfare offered by labour law are so minimal (like the level of minimum wage) that they leave some workers beneath the poverty line or needing to work in two jobs or more in order to support a family. This typifies the lives of many working poor, who as a consequence are under exploitative conditions of employment or deeply unequal terms of social participation. Figures show that the number of workers finding themselves beneath the poverty line is growing, with a further illustration being those who work by the hour or those combining two jobs in order to support their families. One example discussed in this chapter to illustrate this set of situations is that of Uber drivers. I argue that even if acknowledged as being covered by labour laws, their work experience reveals that many of them are in a situation of ‘unfavourable welfare’. ‘Unfavourable humanity’ addresses cases where workers have been included within the scope of labour law, but their inclusion, particularly the minimal rights offered to them, degrades other human values. This will be illustrated by the case of sex workers who have been recognised by the courts in several countries as having employment relationships with their pimps in order to receive minimal wages and at times some other labour rights. Here one can argue that their inclusion within labour law is problematic because it legitimises their objectification as sexual objects. It can also be argued that even if the application of labour law to sex workers is not problematic, because it respects their choice to work in this occupation, what labour law offers is what leads to their dehumanisation. Hence, if one conceptualises social inclusion on the basis of minimal welfare one will see their inclusion within the scope of labour law as leading to social inclusion and the minimum wage as fair compensation for sex work. However, a broader account of social inclusion, as the one presented here, can capture the problems of dehumanisation, because it points out that the level of pay offered by minimum wage is unfair in a way that practically objectifies the workers while degrading our human values and respect for the body. The normative account of social inclusion according to the scales of justice, as offered in this chapter, has three main contributions: first, while an account that focuses on minimal welfare fails to address unfavourable inclusion and the forms of unfavourable inclusion that this chapter points to, an account based on scales of justice helps to shed light on these hidden aspects of exclusion. Secondly, it offers a compass for assessing whether labour law is fulfilling its foundation of social inclusion, while offering guidelines to assess situations where social inclusion is not fulfilled. Thirdly, it makes both of the above two contributions while broadening our vision of justice beyond the Eurocentric understanding, while integrating labour law’s basic understandings into this setting. I  will show that once the complex lives of the working poor are recognised, legal tools can be adopted to deal with ‘unfavourable welfare’; once fair redistribution is required for sex workers, rights beyond the minimum can be gained, diminishing the objectification of these workers while addressing ‘unfavourable humanity’; and once representation is provided to domestic workers, they are able to push towards legislation that rewards them with working hours’ protections and further labour and migration rights, while departing from the Eurocentric norm of justice that is common in labour law. Such was the case with domestic workers who have organised and pushed for the adoption of the International Labour Organization (ILO) Convention

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and Recommendations for domestic workers, with their organisations promoting a nonEurocentric form of legislation in countries such as Brazil and several US states. The chapter is structured as follows. Section 2 briefly introduces the literature on social inclusion in the labour law literature. Section 3 presents the account of social inclusion offered on the basis of Fraser’s scales of justice, entailing recognition, redistribution, and representation on both a global and local scale. Section 4 provides some examples of unfavourable inclusion, while Section 5 shows how the integrated account of scales of justice and labour law can also serve as a compass for assessing current labour law’s failures to meet the idea of social inclusion, as well as guidance for amendments that are needed. Section 6 concludes.

2.  Social Inclusion and Labour Law A number of writers have emphasised that social inclusion is one of the foundations of labour law. Writing in 2003, Hugh Collins argued that employment law functions together with other governmental policies to reduce or minimise social exclusion.24 Although subsidiary in relation to other policies, such as taxation, welfare benefits, education, and other macroeconomic policies, labour law still plays a vital role. By controlling the employers’ power to make hiring and firing decisions, by prohibiting discrimination, enabling training, etc, employment law intervenes in markets which lack, according to Collins, ‘any sense of social responsibility’,25 and achieves ‘much more than to protect a liberal freedom to work’.26 In 2016, in his book, A Purposive Approach to Labour Law, Guy Davidov also mentioned social inclusion as one of the goals of labour law.27 Davidov argues that while there are various laws and policies aimed at dealing with social inclusion, labour law plays an important part ‘by preventing discrimination, limiting dismissals, requiring hours of work (and other aspects of work organization) to be compatible with family obligations, improving employability (by requiring training for example), and also by indirectly controlling the size of the labour market’.28 Alongside these writers, numerous studies in recent years have shown how labour law is an institution that drives towards social exclusion, especially in the currently fragmented world of work.29 Given that the study of social inclusion is also concerned with a process that leads to social exclusion, in order to assess policies resulting in such exclusion,30 such research is of tremendous value. Studies show that many workers find themselves fully excluded from labour law’s coverage or only enjoying partial rights,31 precarious work has become highly prevalent,32 and the processes of globalisation and migration have led to new forms of social exclusion.33 Once it is acknowledged that there is a high correlation between 24  Collins (n 4). 25  ibid. 26  ibid 23. 27  Davidov (n 4). 28  ibid 62–​3. 29  Albin and Prassl (n 15). 30  Gerry Rodgers, ‘What is Special about a “Social Exclusion” Approach?’ in Rodgers, Gore, and Figueiredo (n 7) 43. 31  The wide range of literary contributions cannot be mentioned, of course, but for a good collection see Guy Davidov and Brian Langille (eds), Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work (Hart 2006). 32  A small sample of the literature on precarious work: Judy Fudge and Rosemary Owens (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (Hart 2006); Leah F Vosko (ed), Precarious Employment: Understanding Labour Market Insecurity in Canada (McGill-​Queen’s University Press 2006); Einat Albin, ‘Introduction:  Precarious Work and Human Rights’ (2012–​13) 34 Comparative Labor Law and Policy Journal 1. 33  Bridget Anderson, ‘Migrations, Immigration Controls and the Fashioning of Precarious Workers’ (2010) 24 Work, Employment and Society 30; Leah F Vosko, Managing the Margins: Gender, Citizenship and the International Regulation of Precarious Employment (OUP 2010); Fudge (n 19).

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those who are fully or partially excluded from labour law and the socially excluded, a question is raised on whether there is a problem with the normative account of social inclusion in regards to labour law or rather only a problem in its application due to market changes, governmental policies, etc. I believe the problem lies with both the account and its application. Some accounts of social inclusion, particularly those that emphasise its provision of minimal welfare, do not capture central problems in understanding what inclusion means and thus do not realise forms of unfavourable inclusion that will be discussed in this work. As noted in the introduction, this chapter aims to offer a normative account of social inclusion which addresses these problems, but before doing so, in this section of the chapter I will introduce as background some theoretical work that has been done on this term. ‘Social inclusion’ is a European notion of social justice tied to the idea of citizenship.34 Its roots lie in the French tradition, built on the importance that France has placed on social solidarity, in the sense of a ‘social bond’ between the individual and society and his or her active participation in public life.35 When it came into use in liberal individualistic societies within Europe, the notion was based on an understanding of a social contract among citizens (as opposed to the bond between the individual and society), grounded on the equal rights of all individuals. Later the EU linked it with the inadequate realisation of social rights, including social rights to employment.36 Within the literature, the term has multiple meanings, with both broad and narrow definitions being used by policymakers and academics. Moreover, being a Eurocentric term, there has been criticism of its application in southern states, where, for example, social exclusion is not seen as a lack of integration, but rather as structurally related to the ways economies and societies function.37 In some countries people have been excluding themselves from the wider economy and society in order to survive; they have not suffered from poverty due to social exclusion. The notion still, however, as Gore has said, provides ‘an important framework for thinking out alternatives to the welfare state’,38 and its strength lies, as Faria has said, in linking together ‘loosely connected notions such as poverty, deprivation, lack of access to goods, services and assets, precariousness of social rights’, thus providing a general framework.39 The normative discussions on social inclusion have featured theories arguing that the right to membership within a society is the most basic right, and that it depends on admission policies.40 This line of thinking looks at opportunities to enter into the social and economic order. Following this, it can be said that in relation to labour, all social inclusion means is that everyone should have a job.41 This was indeed the meaning adopted in Britain during the time of the New Labour government, when there was a turn away from a policy whose agenda was based on equality achieved through distribution via welfare payments, to a social inclusion policy that stressed access through labour market participation and education.42 According to the government, such labour participation not only meant having a job, but rather having a job that ensured a minimum wage.43 Hence, in respect of social inclusion and labour regulation, access and minimum wages lay at the heart of the Labour Party’s policy. This was also the meaning adopted by those arguing that the British category of ‘workers’ led to the social inclusion of more workers.44 Others, however, argue that social inclusion has to be more than that; it should include membership within the core social and legal arrangements of work. In addition to

34  37  41  44 

European Citizenship and Social Exclusion. 35  Gore (n 13) 2. 36  ibid. Faria (n 18). 38  Gore (n 13) 3. 39  Faria (n 18) 127. 40  Gore (n 13) 9. See the statement of Tony Blair (n 1). 42  Lister (n 2). 43  ibid 220. Burchell, Deakin, and Honey (n 9).

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redistribution, social inclusion focuses on relational issues, including participation and power.45 In respect of legal arrangements, literary contributions point to several aspects of social inclusion. There are those who emphasise the provision of rights as achieving social inclusion. Scholars have noted the exclusion of workers from labour law’s protection due to the growth of various work patterns that are outside its scope as a cause of concern.46 In this respect, discussions have ensued on problems resulting from the exclusion of workers from the more protected jobs and from those providing more rights at work, as well as on strong patterns of legal segmentation that have emerged with rather weak justification (resulting from intermediate categories that offer limited levels of rights). Others adopt a broader idea of citizenship, and more particularly of industrial citizenship, that extends beyond guaranteeing employment rights and is comprised of active participation, organisation, and voice.47 At the very minimum, the opportunity to have a voice is dependent upon receiving information and/​or being entitled to be consulted. A further approach to social inclusion is one that Sen has emphasised as inclusion in the richness of life and the freedom to choose.48 In his work, Sen uses the theory of capabilities, emphasising the relational aspects of capabilities, to shed light on both material and non-​material dimensions of inclusion and its counterpart—​social exclusion. Capabilities are seen as the means by which one can make choices and achieve participation in the social sphere and in social relations. If one follows these latter literary conceptions of social inclusion, then it becomes clear that securing a minimum level of welfare for every citizen is a very narrow and minimal conception of the term. This minimum is rare in the literature on social inclusion for most literary contributions place emphasis on access to rights, livelihoods, and sources of well-​ being, and a share of the general prosperity.49 That share is not necessarily an equal share, but it is also not minimal. Well-​being includes material as well as non-​material goods, such as participation in political life and cultural activities, with the aim of achieving an outcome of social cohesion. With this in mind, what should the normative conception of social inclusion be for labour law? The remaining sections of this chapter aim to offer such an account.

3.  Social Inclusion as Recognition, Redistribution, and Representation in Local and Global Scales of Justice Nancy Fraser’s Scales of Justice offers, I believe, an appropriate normative account of social inclusion in labour law, especially once it is integrated with labour law’s thought. I will show that Fraser’s theory is very much attuned, first, to social inclusion theory as presented in the previous section, something that Fraser herself has acknowledged50 and, secondly, to labour law scholarship, particularly her scales of recognition, redistribution, and representation. Adding to them the global scale, as she proposes in her late work, offers an important layer for assessing more deeply the idea of social inclusion in labour law. According to Fraser, ‘justice requires social arrangements that permit all to participate as peers in social life’.51 In her earlier work, Fraser focused on economic structures that deny people the resources they need for full participation, subjecting them, therefore, to distributive injustice. She also attended to cultural values that deny people the necessary standing in order to participate in social life, leading to their need of recognition. These together 45  G Room, ‘Understanding social exclusion:  Lessons from transnational research studies’, conference on ‘Poverty studies in the European Union: Retrospect and Prospect’, Policy Studies Institute, London (November 1994) 9. 46  Rodgers (n 30) 44. 47  Albin and Prassl (n 15) 217. 48  Sen (n 22). 49  Rodgers (n 33) 43. 50  Fraser (n 3). 51  Fraser, Scales of Justice (n 20) 16.

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formed her two-​dimensional model of justice—​redistribution (the economic dimension) and recognition (the cultural dimension).52 A few years ago Fraser added a political domain of justice to her previous model, which she calls ‘representation’. This was done in her work Scales of Justice where she explains the choice of this term in reference to the ways in which justice should be measured, under a moral balance, and as a way to describe spatial relations in today’s global world.53 Let me elaborate on both theses. Fraser’s early work dealt with the transition of social justice claims from redistribution, whereby social justice is considered to be achieved through more distribution of resources and wealth (from North to South, from the rich to the poor, from owners of capital to workers), to the politics of recognition.54 In that work she presented her thesis that justice requires both recognition and redistribution, stressing that the two need to be reconciled and recombined.55 While breaking the alignment of redistribution with class-​centred politics, and of recognition with identity politics, she reveals that feminist and race theory and politics have looked at socio-​economic transformations or reform as a remedy for gender and race injustice, and that at the same time those who have focused on the economic structure of society have acknowledged that gender and race politics impact that structure. As Iris Young wrote, if redistribution is seen as distinct from recognition, its difference-​blind perception of justice can misleadingly universalise dominant group norms.56 Fraser shows how gender, race, sexuality, and also class encompass the two dimensions of redistribution and recognition. In regard to class, for example, she notes that while the ultimate cause of class injustice is the economic structure of a capitalist society, there are status harms that are by-​products of that order, which have ‘since developed a life of their own’.57 These are cultural and therefore fall in the dimension of recognition. This viewpoint gains in importance once it is taken into consideration that these various axes of gender, race, sexuality, class, etc, as also axes of subordination, intersect with each other. This understanding leads Fraser to develop an integrated approach towards justice that can ‘encompass and harmonize both dimensions of social justice’.58 In Scales of Justice Fraser develops this theory in two main directions. The first is to go beyond the territorial state. As she says, both redistribution and recognition have been traditionally thought about within territorial states, upholding a ‘Westphalian’ framing of justice.59 In joining human rights activists and international feminists, as well as the World Trade Organization (WTO), Fraser points to the importance of adding globalisation to her thinking about justice. Globalisation in this respect entails both addressing competing frames of justice, and opening a path for determining not only what justice is, but also who counts as a bona fide subject of justice.60 This leads to her second development, which is to add a political dimension of participation in rulemaking and in the community of those entitled to make justice claims on one another. According to Fraser, this is where the struggle over redistribution and recognition takes place.61 Representation in her theory has been added mainly in light of concerns with forms of political misrepresentation, which are detrimental to justice, especially for non-​citizens. As Fraser herself notes, adding this dimension of justice remedies a lacuna in her previous theory, which did not give enough weight to inequalities rooted in the political constitution of society, while also addressing a

52  On this two-​dimensional model, see Nancy Fraser and Axel Honneth, Redistribution or Recognition? A Political–​Philosophical Exchange (Verso 2003) ch 1. 53  Fraser, Scales of Justice (n 20). 54  Fraser and Honneth (n 52). 55  ibid 9. 56  Iris Marion Young, Justice and the Politics of Difference (2nd edn, Princeton University Press 2011). 57  Fraser and Honneth (n 52) 23. 58  ibid 26. 59  Fraser, Scales of Justice (n 20) 12. 60  ibid 5. 61  ibid 17.

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meta-​political kind of misrepresentation, resulting from the lack of attention to space and geography in political decision-​making.62 Both moves Fraser makes are in line with the central ideas of social inclusion discussed in the literature. As noted earlier, it has been a point of criticism that theories of social inclusion discuss inclusion in regard to membership within a particular society; detractors have pointed to the Eurocentric ideology that governs this way of thinking, while emphasising that issues of globalisation have become crucially important. This is particularly true in regard to the entry of migrants, posing a challenge to what redistribution and recognition entail within the receiving country. Additionally, representation is also central to social inclusion theories. As Room noted, social inclusion focuses on relational issues, including participation and power. The relational aspect is what differentiates social inclusion theories from the earlier theories that focused on poverty alone. Fraser herself has argued that social exclusion is rooted in the three dimensions of social ordering she offers, ‘as when economic, cultural and political structures work together to obstruct participation’.63 Moreover, her theory also accords with the theories regarding social inclusion and labour regulation that have emphasised rights, industrial citizenship, and the freedom to choose—​those that were presented in the previous section. Most importantly, Fraser’s theory follows the basic understandings of labour law, which has developed from a focus on the goal of redistribution through the provision of labour rights, including a balance between work time and free time, minimal earnings, holiday rights, protections from dismissals, etc, to addressing identity politics through anti-​ discrimination regulation, affirmative action, and others, ie recognition. The two dimensions have been central to this field, and one might say even developed from within it, for decades. And always, labour law’s core foundation rested on voice and representation. Importantly, labour scholarship and practice emphasised that representation need not necessarily be bound to unionisation, and that other forms of voice are critical as well.64 However, as opposed to Fraser’s theory, which mainly looks at the entry level of representation, labour law scholarship and activism contribute to the understanding that this is insufficient. Representation has to be substantial in order for it to succeed. Recently, more attention has been paid within this legal field to issues of globalisation and problems in the social inclusion of migrants,65 and to practices, some of which will be discussed in the following sections of this chapter, that show how the voices of migrants have been crucial in the process of developing labour laws so as to include this group of workers. But going back to Fraser, these scales, as she herself says, cannot be thought of in separation from one another,66 therefore positing a normative basis for understanding justice. Fraser’s theory therefore fits with the idea of labour law, with labour laws offering important insights for its development. And, indeed, several labour law scholars have used her theory in recent years to understand the foundations of labour law and of social rights, on both the national and international level.67 I therefore argue that the integration of Fraser’s 62  ibid 6. 63  Fraser (n 3) 366. 64  The Information and Consultation Directive serves as one example—​Directive 2002/​14/​EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community [2002] OJ L80, and see also other means of workers’ voices in Alan Bogg and Tonia Novitz (eds), Voices at Work: Continuity and Change in the Common Law World (OUP 2014). 65  See references in nn 19 and 33. 66  Fraser, Scales of Justice (n 20) 18, 21. 67  See Prabha Kotiswaran, ‘Abjective Labors, Informal Markets: Revisiting the Law’s (Re)Productive Boundary’ (2014) 18 Employee Rights amd Employment Policy Journal 111; Judy Fudge and Guy Mundlak, ‘Justice in a Globalizing World:  Resolving Conflicts Involving Workers’ Rights Beyond the Nation State’ in Yossi Dahan, Hanna Lerner, and Faina Milman-​Sivan (eds), Global Justice and International Labour Rights (CUP 2016); Gabriela Medici and Adelle Blackett, ‘Ratification as International Solidarity—​Reflections on Switzerland and Decent Work for Domestic Workers’ (2016) 31 Connecticut Journal of International Law 187.

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theory and labour law scholarship should serve as a normative conception for social inclusion as a foundation of labour law. Inclusion within the scope of labour law does not suffice as fulfilling the aim of social inclusion: rather, social inclusion remains unmet whenever there is a deficiency on the three scales—​recognition, redistribution, and representation—​ locally or globally. Such a viewpoint is illuminated once we start discussing examples of what Sen has termed ‘unfavourable inclusion’.

4.  Unfavourable Inclusion By offering the term ‘unfavourable inclusion’, Sen pointed out that there are forms of inclusion that are in practice exclusionary.68 Unfavourable inclusion occurs when there are exploitative conditions of employment, or deeply unequal terms of participation. While from a minimal welfare perspective partial inclusion might seem ‘better than nothing’, if we follow Sen’s account of unfavourable inclusion these situations can potentially be covered by the notion of social exclusion. This is because he sees exclusion as including ‘exclusion from equitable inclusion’ or even ‘exclusion from acceptable arrangements of inclusion’.69 Questions thus remain as to what those acceptable arrangements are in respect of labour. In Sen’s view—​the capabilities approach—​the issue, ultimately, is how this affects a person’s ability to have adequate basic capabilities, and what freedom a person has.70 Building on Sen’s notion, I provide three examples where workers received minimal welfare but were excluded from acceptable arrangements—​‘unfavourable coverage’, ‘unfavourable welfare’, and ‘unfavourable humanity’.

(a) Unfavourable coverage I use the term ‘unfavourable coverage’ to refer to situations of partial inclusion in labour law, which creates a non-​acceptable arrangement leading to exploitative conditions of employment or deeply unequal terms of participation. An example of this sort is domestic workers. It is already widely known that domestic workers are deprived of some of the most acceptable arrangements of labour law, even after the adoption of the ILO Convention and Recommendations.71 In Britain, for example, domestic workers are excluded from working time regulation;72 they are placed outside the scope of health and safety legislation;73 they can be paid less than the minimum wage when they receive accommodation;74 and if treated as family members, domestic workers are exempted from the minimum wage entitlements.75 In Israel they have been excluded from the Work and Rest Time Act by a Supreme Court decision.76 Under US law, domestic workers are exempted from the Fair Labor Standards Act,77 the National Labor Relations Act,78 as also from the Occupational Health and Safety Act.79 They are also not covered by federal anti-​discrimination laws, such as Title VII that 68 Sen notes it is Anita Kelles-​Viitanen who pointed out this issue in Anita Kelles-​Viitanen, ‘Discussant’s Commentary’, Asian Development Bank Seminar on Inclusion or Exclusion: Social Development Challenges for Asia and Europe, Geneva (April 1998); Sen (n 22) 29. 69  Sen (n 22) 29. 70  ibid. 71  Adelle Blackett, ‘Introduction: Regulating Decent Work for Domestic Workers’ (2011) 23 Canadian Journal of Women and the Law 1; Mantouvalou (n 19). 72  Working Time Regulations 1998, SI 1998/​1833, reg 19. 73  Health and Safety at Work Act 1974, s 51. 74  National Minimum Wage Regulations 1999, SI 1999/​584, reg 57. 75  ibid. 76  Yulanda Glutan v The National Labour Court HCJ 10007/​09 (unpublished). 77  Fair Labor Standards of 1938, 29 USC §§ 201–​219 (1938). 78  National Labor Act of 1935, 29 USC §§ 151–​169 (1935). 79  Occupational Health and Safety Act of 1970, 29 USC §§ 651–​678 (1970).

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applies only to workplaces with fifteen employees or more.80 Another essential freedom that domestic workers are usually missing is that of unionisation. A number of studies have pointed to the hurdles domestic workers face in attempting unionisation.81 Even though they do organise and mobilise, it is usually not within a traditional trade union setting.82 Hence, while domestic workers are seen as having a contract of employment and being entitled to minimum wages, they are also an excluded category. Some might argue that their precariousness does not necessarily point to social exclusion. It has been argued that the agreement of domestic workers to come and work under these conditions represents their ‘freedom to choose’.83 Moreover, from a minimal welfare perspective, it can be argued that these minimal wages are sufficient for living, and even more—​that the wages are higher than those they earned in their national states, and that they also lead to social inclusion in their countries of origin, due to their ability to improve the living conditions of family members that have been left behind. The account offered in this chapter will lead to arguing otherwise. It reveals that the work culture of these workers is not recognised, and that they have minimal representation. Such lack of recognition impacts distributive arrangements and places these workers under exploitative conditions of employment (regarding health and safety, for example, or possibilities for severe exploitation) and deeply unequal terms of participation. From this perspective, their social exclusion due to unfavourable coverage is prominent, and is explained by such lack of recognition (their migratory status and their gender)84 and representation, so that considerations of what is just by them can be included in the discussion as well.

(b) Unfavourable welfare According to the Organisation for Economic Co-​operation and Development (OECD), 1.8 billion people work in informal jobs, compared to 1.2 billion who benefit from formal contracts and social security protection, and the growth in informal employment also increases poverty.85 Statistics reveal that the percentage of the working population beneath the poverty line has been increasing in recent years, with more working people living in poverty. Figures also show that there is a much greater risk of being in poverty while working in jobs that are defined as ‘non-​standard’.86 Even those who are covered by labour laws find 80  Civil Rights Act of 1964 § 7, 42 USC § 2000e ff (1964). 81  Shireen Ally, ‘Caring About Care Workers:  Organizing in the Female Shadow of Globalization’ (2005) 31 Labour, Capital and Society 184; Guy Mundlak and Hila Shamir, ‘Organising Migrant Care Workers in Israel: Industrial Citizenship and the Trade Union Option’ (2014) 153 International Labour Review 93; Margriet Kraamwinkel, ‘Organizing in the Shadows: Domestic Workers in the Netherlands’ (2016) 17 Theoretical Inquiries in Law 351. 82  Einat Albin and Virginia Mantouvalou, ‘Active Industrial Citizenship of Domestic Workers: Lessons Learned from Unionizing Attempts in Israel and the United Kingdom’ (2016) 17 Theoretical Inquiries in Law 321. 83  This is the understanding underlying the theory of consent that sees migrant workers as agreeing to come and work under the terms offered in the receiving country once they enter its borders. On this, see Guy Mundlak, ‘Workers or Foreigners? The “Foundational Contract” and Democratic Deficit’ (2003) 27 Iyunei Mishpat 423 (Hebrew—​author’s translation) 428–​32. 84  Guy Mundlak and Hila Shamir, ‘Between Intimacy and Alienage: The Legal Construction of Domestic and Carework in the Welfare State’ in Helma Lutz (ed), Migration and Domestic Work: A European Perspective on a Global Theme (Routledge 2008) 161; Blackett (n 71). 85  OECD, ‘Raising Informal Employment will Increase Poverty’ (8 April 2009)  accessed 7 October 2017. 86  This has been established across European countries as well as in the US. For Europe, see Jeroan Horemans and Ive Marx, ‘Should We Care about Part-​Time Work from a Poverty Perspective? An Analysis of the EU15 Countries’ in Max Koch and Martin Fritz (eds), Non-​Standard Employment in Europe: Paradigms, Prevalence and Policy Responses (Palgrave Macmillan 2013) 169; Wim Van Lancker, ‘Temporary Employment and Poverty in the Enlarged European Union: An Empirical and Comparative Analysis’ in the same volume, 190. For the US, see

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themselves at times under degrading conditions. It has been established that having a job is not sufficient to escape from poverty and that state intervention as well as family support is especially crucial.87 With the growing number of people working in non-​standard jobs around Europe and the US, the concern has been raised that while job participation might increase, the poverty rate will stay the same given that the unemployed poor just turn into working poor.88 Hence, while formal contracts and a stable lifelong job linked with social security provisions were once indeed seen as a gateway out of poverty, this is not always the case regarding the patterns of work that now typify the market. In the more unstable job market that offers lower job security and more minimal degrees of protection, people might still find themselves in poverty. According to the literature on social inclusion, people living in poverty are excluded from society. But it is not only those who work but are still in poverty that should disturb us. The situation of workers that are covered by labour law but are deprived of other labour rights, such as a balance between work time and leisure or family time, is troubling as well. This can occur even if workers are within an employment relationship and work time regulations apply to them, because in their ‘spare time’ they need to work in another job to earn a living. These workers have no time to do anything else than work—​no time for their family or for themselves. Uber is an interesting case for assessing both situations. Figures regarding Uber drivers in London show that around 38% of them have another job and that over 50% have another source of income (some being another driving app like Lyft).89 Uber drivers are in precarious situations and some of them are poor. A New York Uber driver reported in December 2016 that he had struggled to survive on poverty pay. While Uber were advertising that drivers will earn around $1,500 a week, in practice he earned much less because Uber, in his words, ‘flood the streets with more drivers’, leading to lower rates, while Uber continued to take its commission as before.90 Also, when he was unable to work due to illness or weather conditions, he still needed to pay his leasing fees. ‘Eventually almost everything I earned was going toward paying the car lease and other expenses deducted from my check.’91 Indeed, with the growing volume of case law taking the position that Uber drivers are covered by labour laws,92 it may be assumed that their situation can and will become much better. But these other aspects of the job—​the commission required, the inability to work due to health and weather conditions, the number of drivers on the streets, and so on—​will not necessarily leave Uber drivers in a better position regarding their earnings or their ‘non-​work’ time.

Bernadette D Proctor, Jessica L Semega, and Melissa A Kollar, ‘Income and Poverty in the United States: 2015—​ Report No P60-​256, United States Census Bureau’ (2016). 87  Jeroen Horemans, ‘Atypical Employment and In-​Work Poverty:  A Different Story for Part Timers and Temporary Workers?’, CSB Working Paper (January 2017)  accessed 7 October 2017. 88  ibid Introduction. 89  James Titcomb, ‘Majority of Uber Drivers in London Work Part Time, Study Says’, The Telegraph (2 June 2016) accessed 15 January 2018. 90  Jeffrey Shepherd, ‘For This Ex-​Driver, Uber “Gig” Was Ticket to Poverty’, Times Union (27 December 2016)

accessed 7 October 2017. 91  ibid. 92  O’Connor et al v Uber Technologies, Inc et al, 82 F Supp 3d 1133, 1138 (ND Cal 2015); Mr Y Aslam, Mr J Farrar and Others v Uber BV, Uber London Ltd, Uber Britannia Ltd [2017] IRLR 4 (ET). See also Cotter v Lyft, Inc, 60 F Supp 3d 1067 (ND Cal 2015).

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Uber drivers are, of course, not alone in this situation. They are merely an example of workers in the current economy that suffer from unfavourable welfare. This means that the level of rights provided by labour law is insufficient to afford welfare to a family, indeed leaving many workers in poverty or needing to complement their earnings with an additional job. Here, it is not the scope of labour law that leads to deeply unequal terms of participation, but rather issues of redistribution resulting from the level of welfare that labour law has to offer. It follows that the assumption that when labour rights are provided people are socially included does not hold water; the political message that once one has a job one can benefit from social inclusion and the assumption that labour law leads to social inclusion are not only false, but also create a misconception. Additionally, former academic research, which highlighted that being included within labour law and entitled to labour conditions seems to offer recognition and redistribution93 and make work just,94 clearly is not necessarily correct in our current times. Concentrating on minimal welfare alone points to part of the problem experienced by the working poor—​that of redistribution. Not to minimise the importance of redistribution, other emerging central problems are lack of free time and of family time, as well as precariousness. These are essential aspects of humanity and of social inclusion that are missed. A broader notion of social inclusion that captures recognition and redistribution makes it possible to point them out, because, as Fraser said, these status harms are by-​products of a class order, which have ‘developed a life of their own’.95

(c) Unfavourable humanity In this final example of unfavourable inclusion, I wish to stress the dehumanisation process that labour law can contribute to once it has included individuals within its scope and provided them with minimal welfare benefits. Dehumanisation is an unclear concept, but it has been noted in the literature to entail two main senses. The first is the separation of human beings from the related category of animals, focusing on the uniquely human characteristics that define the boundary of such separation. The second is the non-​comparative sense of humanness, focusing on the features which are typical of or central to humans.96 Inclusion within labour law necessarily separates humans from animals, because it is a law that governs the work of humans based on the view that the labour of human beings should not be seen as a commodity. Hence, unfavourable humanity will refer more to the second sense. I argue that in some circumstances labour law harms features that are typical of or central to humans, eroding our perception of humanity. Previous pieces of scholarly work in regard to gender, race, and disabilities have used this second sense to make claims regarding dehumanising treatment either through objectification (feminism), organism metaphors (disability), lack of culture, self-​restraint, sensibility, or cognitive capacity (race).97 I  will argue that at times labour law strengthens the dehumanisation of workers, and when it does so it cannot be seen as achieving social inclusion. At the minimum, securing minimal welfare through labour laws forestalls opportunities to see the complexities emerging from such actions and their problematic effects. An example that will be discussed is that of sex 93  Kotiswaran (n 67). 94  Guy Mundlak, ‘The Right to Work—​the Value of Work’ in Daphne Barak-​Erez and Aeyal Gross (eds), Exploring Social Rights: Between Theory and Practice (Hart 2007) 341. 95  See the discussion in Section 3. 96  Nick Haslam, ‘Dehumanization:  An Integrative Review’ (2006) 10(3) Personality and Social Psychology Review 252, 256. 97  ibid 252–​3.

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workers that have been recognised as entitled to be covered by some labour laws. Seeing social inclusion through the scales of justice proposed here highlights the problems associated with applying labour laws to these workers—​its confirmation and reinforcement of their exclusion from society. In several jurisdictions around the world, sex workers have been recognised by the courts as being covered by labour laws. For example, in Australia sex workers employed in what is seen as legal prostitution are entitled to very similar labour rights as other workers;98 a civil court in Spain ruled that sex workers are to be entitled to the same labour rights as any other workers;99 and in Israel a victim of trafficking was seen as entitled to minimum wages and salary protections not through recognition of her having an employment relationship, but rather by applying the Minimum Wage Act, the Severance Payment Act, the Annual Vacation Act, and the Protection of Wages Act on the basis of the purposive test.100 This latter case—​Unidentified Person v Sofia Kutchik—​is of importance to this discussion and I shall therefore elaborate on it further. Its applicant is a trafficking victim who had been locked in an apartment to provide sex services seven days a week, to ten to twelve clients per day. She was alone in Israel and had no one to turn to and therefore kept on working for more than a year. She was forced to work during illness and was not allowed to leave the apartment on her own. Her claim for labour rights was not accepted by the Regional Labour Court, a decision that was overturned by the National Labour Court. The latter decided that there was no contract of employment between the trafficked individual and her pimp because the mere idea of a contract requires decency, good faith, and trust, something that does not typify the type of relations in trafficking. However, the court reached a decision that the worker should be seen as entitled to minimum wages, compensation for the holding back of wages, and dismissal and holiday payments due to the purposes of these pieces of legislation, which, in the words of the court, ‘protect these workers from exploitation’.101 In citing previous court decisions in Israel that applied the same test, the court notes that it is obliged ‘to protect the economic rights of a victim of trafficking and to ensure her at least a decent compensation for her work’.102 Because the worker cannot prove what her monthly income was, she is entitled, as the court says, to a minimum wage the purpose of which is to provide the minimum necessary for a worker and her family.103 As noted above, she was seen as entitled to some further rights as well. There is a fierce debate within feminist scholarship over the question whether seeing sex work as any other work is objectifying or liberating. Liberal feminists argue that seeing sex work as work respects these women’s choices,104 and addresses the distributive effects of regulating sex work.105 Radical feminists, on the other hand, argue that it legitimises work which objectifies women, therefore claiming that it is highly problematic.106 Following this discussion, there are those who will see inclusion within the scope of labour law—​full or

98  Barbara Sullivan, ‘When (Some) Prostitution is Legal: The Impact of Law Reform on Sex Work in Australia’ (2010) 37(1) Journal of Law and Society 85. 99  NSWP, ‘A Spanish Court Rules on Sex Workers’ Labour Rights’, Global Network of Sex Work Projects (11 March 2015)  accessed 7 October 2017. 100  Case 000247/​07 (NLC) Unidentified Person v Sofia Kutchik (24 September 2009). 101  ibid para 17. 102  ibid para 16. 103  ibid para 26. 104  Janet Halley et al, ‘From the International to the Local in Feminist Legal Reponses to Rape, Prostitution/​ Sex Work, and Sex Trafficking: Four Studies in Contemporary Governance Feminism’ (2006) 29 Harvard Journal of Law and Gender 335, 339. 105  Hila Shamir in ibid 360. 106  Catharine A MacKinnon, ‘Prostitution and Civil Rights’ (1993) 1 Michigan Journal of Gender and Law 13, 22.

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partial—​as dehumanising (the radical feminists). But, even if one accepts the view that sex work should be seen as work, it can be argued that there is still a problem with what labour law has to offer. The problem lies in labour law’s conception of fairness, embedded in its rules, such as the level of minimum wage or the number of holiday days to which workers are entitled. In the case of sex workers, what labour law has to offer leads to their dehumanisation in the sense of objectification. Martha Nussbaum has pointed to seven components of objectification, one of them being denial of subjectivity, ie treating people as objects whose experience and feelings (if any) need not be taken into account.107 It can be said that providing sex workers with an entitlement to minimum wages and holiday payment is what objectifies these workers because it denies their subjectivity—​their experiences and feelings. In other words, it denies recognition of what it entails to be a sex worker. Moreover, the norm of social inclusion as minimal welfare leads to seeing the minimum wage as a fair compensation for sex work, when in fact, once the dimension of recognition is added, minimal wages are seen as an insult to that profession and to what it requires. The words of the court in the Kutchik case are an excellent example. To see minimum wages, compensation for the holding back of wages, and for dismissal, as well as holiday payments, as protecting these workers from exploitation is to ignore the reality, highlighting labour law’s assumption of fairness that was noted earlier. In these cases, applying the same laws that apply to others only strengthens the objectification of these women. It can hardly be seen as fulfilling the conception of social inclusion presented earlier.

5.  An Integrated Account of Scales of Justice and Labour Law as a Compass In this section I will show how an account of social inclusion based on an integration of Fraser’s Scales of Justice and labour law offers a compass for assessing whether labour law meets its foundation of social inclusion, and for thinking of means to respond to the problems of social exclusion via a global perspective. It is through this conception of social inclusion that one can see how this idea can be fulfilled by labour law and/​or other laws. The discussion will be conducted based on the three examples put forth earlier.

(a) Addressing unfavourable coverage Literary contributions have argued that domestic workers need to be fully included within the scope of labour laws.108 But for many years the rights of domestic workers have not been recognised on the international and national levels. Various reasons can be pointed to as reasons for the change in this approach, a central one being domestic workers’ organisation at the local and international levels, voicing their claims to the rights they deserve. As Adelle Blackett wrote, ‘[t]‌he international and domestic law landscape has been profoundly influenced by social movements of domestic workers, who have actively mobilized “from below” ’.109 When domestic workers’ organisations have struggled, they have had significant achievements beyond the territorial state and within its boundaries. The 107  Martha C Nussbaum, ‘Obejctification’ (1995) 24(4) Philosophy & Public Affairs 249. 108  Martin Olez, ‘The ILO Domestic Workers Convention and Recommendation: A Window of Opportunity for Social Justice’ (2014) 153(1) International Labour Review 143, 144, 147–​52; Blackett (n 71). 109  Adelle Blackett, ‘The Decent Work for Domestic Workers Convention and Recommendation, 2011’ (2012) 106 American Journal of International Law 778, 782.

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ILO Convention for Domestic Workers and accompanying Recommendations was a major achievement in international labour law to promote their rights,110 sketching a vision of justice for these workers. Domestic workers’ representation in the process enabled the drafting of these documents in a way which considered various aspects that have been of particular relevance to this group.111 One of the main strengths of this Convention and Recommendations is that they are sectoral, based on a recognition of these workers’ specific culture and experiences.112 The alliance has continued working after this achievement, pushing for its implementation in various national states. As the International Trade Union Confederation declared in 2015, the domestic workers’ movement, a unique alliance of domestic workers’ unions and movements, national trade union centres, and migrant, women, and human rights groups, has continued campaigning and gained success in impacting Brazilian law’s protection of domestic workers as well as several state laws in the US that secure the rights of these workers.113 Indeed, in the US, the movement of domestic workers for their recognition and redistribution has produced results. The National Domestic Workers Alliance (NDWA), which brings together over sixty affiliated organisations, ‘works for the respect, recognition and inclusion in labor protections for domestic workers’.114 It has succeeded in pushing legislative bills that protect the rights of domestic workers in New  York (the Domestic Workers’ Bill of Rights),115 Hawaii,116 California,117 Massachusetts,118 Oregon,119 Connecticut,120 and Illinois.121 The success of this movement is impressive, as are the details of the legislation it promotes. A close look at the Domestic Workers’ Bill of Rights, a selective piece of legislation, shows that it has adopted a particular model of working hours for domestic workers that considers their live-​in situation. The law covers workers, whether they are citizens, permanent residents, immigrants of other lawful status, or undocumented workers—​in that it considers the various circumstances migrant workers face, through no fault of their own, in respect of their legal status. Moreover, it provides domestic workers with eligibility to receive pay for overtime work, including during the weekly rest day, if the worker agrees to work on that day. The balance between rest time and work time is achieved by providing rest periods during the day, as well as at night. Similar provisions were later adopted in the other US states mentioned above. This example illustrates that the issue is therefore no longer only what redistribution should be achieved (between hours of work and hours of free time), but also who determines how this redistribution will be achieved—​the central issue put forward by Fraser—​with a recognition of this group’s specific identity(es). When domestic workers have a voice, opportunities for inclusion open up. This makes the question of ‘who’ central, stressing the need for representation. 110  The ILO recognised this achievement in their webpage:  ILO, ‘Domestic Workers—​Promoting ILO Convention No 189 and Building Domestic Workers’ Power’ accessed 9 October 2017. 111  Blackett (n 109). 112  Einat Albin and Virginia Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’ (2012) Industrial Law Journal 67. 113  International Trade Union Confederation, ‘The Unstoppable Domestic Workers’ Movement:  Winning Labour Rights and Protections for 15 Million Domestic Workers’ (16 June 2015)  accessed 9 October 2017. 114  https://​www.domesticworkers.org/​about-​us. 115  Domestic Workers Bill of Rights, NY Laws § 1315, Ch 481 (2010). 116  Domestic Workers Bill of Rights Act 248 §§ 1–​2, Hawaii Revised Statutes §§ 378-​1 and 378-​2 (2013). 117  Domestic Workers Bill of Rights, AB 241 CA. LAB division 2 §§ 1450–​1454 (2013). 118  Domestic Workers Bill of Rights, MGL Ch 149, Sec 190 (2015) (workers in origin). 119  Domestic Workers Bill of Rights, Or SB 552-​A, Ch 457 (2015). 120  Domestic Workers Bill of Rights, Conn HB 5527 §§ 14–​17 (2014). 121  And see also https://​www.domesticworkers.org/​illinois-​bill-​of-​rights.

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The question of ‘who’ is also evident from a discussion held in Israel by a group of experts on the regulation of domestic workers’ hours of work (hereafter ‘the expert group’). Following the Supreme Court decision in the case of Glutan, in which the court decided that the Hours of Work and Rest Act does not apply to live-​in domestic workers and called on the Israeli legislature to adopt legislative measures to regulate the working time of domestic workers, the International Human Rights Clinic at the Hebrew University drafted several proposals for such legislation to be discussed by the expert group.122 Two of the options proposed selective legislation, the first following the Domestic Workers’ Bill of Rights to some extent, and the second following a model previously offered by the Israeli National Labour Court.123 The third option was unitary legislation, proposing to apply the same rules as those applicable to other Israeli workers. One member of the expert group was the NGO Kav-​La’Oved, the central organisation representing the voices of domestic workers in Israel. The organisation informed the expert group that the situation of domestic workers in Israel has actually improved after the decision, not necessarily because of the court’s ruling, but because in parallel migration laws have changed, increasing the bargaining power of these workers. Its recommendation was therefore that the law does not necessarily matter, and that from the workers’ perspective no legislation is required. By voicing their claims and being represented, the workers have eventually determined their own fate, in distinction from the Eurocentric approach to the importance of labour rights. The expert group thus decided not to proceed with a proposal for legislation. Hence, while the obvious response to unfavourable scope is full inclusion, the story of domestic workers points to representation as crucial, either for promoting legislation that can target the needs of the particular group (like the selective work-​time regulation for domestic workers in the US) or by voicing their lack of need for legislation (as is the case in Israel). What the labour case teaches us is that representation has to be substantial in order for it to make an impact, and when this is the case, that it can contravene the Eurocentric meaning of justice, making it possible, for example, for them to work seven days a week for pay if the worker wishes to do so (with an alternative model of rest time), or even leading the Israeli working group to restrain from promoting the application of labour legislation and rights.

(b) Addressing unfavourable welfare One might think that unfavourable welfare should be addressed through support provided by the welfare state,124 but further solutions can be thought of once the account of social inclusion offered in this chapter is used. These have to do with recognition of the working poor within the current labour market and the need for labour law to adjust to their life

122  International Human Rights Clinic at the Hebrew University, ‘Proposal for Regulating the Working Hours of Domestic Workers in Israel, Following the Glutan Decision’ (25 March 2014) Hebrew (author’s translation). 123  In several court judgments it was asserted that counting the hours of work for live-​in domestic workers is difficult, leading the justices to offer a general compensation for hours of work, varying from 20% to 30% overtime compensation. That was the offer in the second proposal. 124  On the link with the welfare state, see Mauro Zamboni, ‘The “Social” in Social Law:  An Analysis of a Concept in Disguise’ (2008) 9 Journal of Law in Society 63; Harry Arthurs, ‘Labour Law as the Law of Economic Subordination and Resistance: A Thought Experiment’ (2013) 34 Comparative Labor Law and Policy Journal 585, which says that if a law of economic subordination and resistance had been developed then ‘Instead of relying on special pleading to the effect that the unique character of employment relations requires, in effect, a semi-​ autonomous legal subsystem, labour law might have presented itself as part of a broad array of differentiated but related subsystems that collectively challenged some core conceptions of the law of industrial and postindustrial capitalism’, at 596.

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circumstances. Here the work done by Alain Supiot and his colleagues is of particular importance,125 specifically their proposal of the idea of ‘labour force membership’ that entails ‘a comprehensive review of working life which is not just limited to paid work’,126 and includes situations of movement between jobs, part-​time work, and also the work of women in the home. Their work thus has covered such movements, eventually leading them to talk about ‘social law’ and the need to expand labour law beyond its scope ‘to cover all kinds of contracts involving the performance of work for others, not only strict worker subordination’.127 Recognition of the working poor can lead us to make a shift in legal thought from a focus on a specific relationship to a focus on the individual. In respect of the examples discussed in the previous section, such recognition of the working poor would consider all the jobs a person is engaged in, moving beyond a singular employment relationship. This will open a possibility of assessing working time and income more holistically, including all the work a person is engaged in. Such recognition of the working poor can eventually bring fairer redistribution. Again, the integration of labour law scholarship and the idea of recognition can offer such a deep account of social inclusion. The representation of the working poor in the process of determining labour law tools that address their life circumstances is highly desirable as well. Currently, labour laws are mainly set by elites in the legislative body, or by unions that do not necessarily represent the interests of the non-​unionised working poor. As shown by the importance of representation in the example of domestic workers discussed earlier, different ways of achieving recognition and redistributive goals for the working poor can be presented by them.

(c) Addressing unfavourable humanity Combating dehumanisation lies at the heart of labour law, which has been built on ideas such as ‘labour is not a commodity’, dignity, and human rights.128 Therefore, attending to dehumanisation can be a very helpful compass for this legal field. Such was the reasoning given by the court in the Kutchik case. However, avoiding dehumanisation requires more than simply providing people with minimum wages. As the discussion earlier has shown, the minimum wage can be extremely insulting and objectifying. What is needed is a more profound understanding and recognition of what this work entails for workers, and through such recognition further consideration of what is fair redistribution. One cannot assume that the minimum wage does the job. Again, this logic is not new to labour law. The paradigm of labour law holds that commodification and objectification can be ameliorated with more rights and better labour conditions. It is just that this remains concealed when viewed through a normative account of social inclusion as minimal welfare, but is highlighted once one adopts the normative account of social inclusion as Scales of Justice.

6. Conclusion This chapter has offered an account of social inclusion based on Nancy Fraser’s Scales of Justice, while integrating into it a labour prism, the aim of which is to capture the lives of various workers, particularly those who are most in need of such inclusion, on both the local and global scales. I have argued that the norm of social inclusion should entail recognition,

125  Alain Supiot et al, Beyond Employment: Changes in Work and the Future of Labour Law in Europe (OUP 2001) 53. 126 ibid. 127  ibid 219. 128  Collins (n 4); Davidov (n 4).

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redistribution, and representation, stressing that these scales of justice are generally in line with both social inclusion theory and labour law. Leaning on this account, I have shown that the account of minimal welfare is insufficient, because it does not adequately address one of the most significant aspects of social exclusion—​‘unfavourable inclusion’. I demonstrated that while the normative account of minimal welfare may justify the inclusion of workers within labour law at a minimal level of protection, it could have the troubling effect of ‘unfavourable inclusion’ about which we should be concerned. The account offered here provides a compass for assessing whether labour law meets its foundation of social inclusion, and serves as a means of responding to the problems of social exclusion. It also opens the path for extending our vision of justice beyond Eurocentric understandings.

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17 Volunteer Work, Inclusivity, and Social Equality Sabine Tsuruda* 1. Introduction Employment law abounds with questions about employee status—​about what makes someone an employee as opposed to, for example, an independent contractor or a volunteer. How the law settles these questions determines the scope of many workers’ rights and protections. For example, under US federal law, volunteers have no right to a minimum wage1 and are not protected by employment discrimination law.2 The law then directs courts to determine employee status by examining the relationships between particular workers and employers. Thus, seemingly narrow issues about particular workers’ financial and hierarchical relations to employers are familiar and pervasive in employment law. Less appreciated are the larger moral and political values implicated by where the law locates the boundaries of employment.3 By examining volunteer status under US minimum wage law, this chapter argues that how the law defines employment not only shapes the terms and conditions of people’s jobs, but also implicates public ideals of social cooperation and the moral significance of work. *  Thanks to Einat Albin, Kevin Banks, Chiara Cordelli, Hugh Collins, Bill Flanagan, Pablo Gilabert, Barbara Herman, AJ Julius, Joshua Karton, Jedidiah Kroncke, Gillian Lester, Virginia Mantouvalou, Cherie Metcalf, Jon Michaels, Sanjucta Paul, Richard Re, Julie Rose, Lawrence Sager, Gina Schouten, Seana Shiffrin, Lucas Stanczyk, Lucas Swaine, Grégoire Webber, Jacob Weinrib, Moran Yahav, Noah Zatz, and Ariel Zylberman, as well as participants in the UCLA Ethics Writing Seminar, Dartmouth Workshop on Economic Justice, the Eleventh Annual Colloquium on Current Scholarship in Employment and Labor Law, and the Conference on the Philosophical Foundations of Labour Law. 1  See eg Tony & Susan Alamo Foundation v Secretary of Labor, 471 US 290, 302 (1985) (explaining that a federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), 29 USC § 201ff (2012), does not reach ‘ordinary voluntarism’). 2  See eg O’Connor v Davis, 126 F3d 112, 113–​16 (2d Cir 1997), cert denied, 552 US 1114 (1998) (holding that the plaintiff, who worked part-​time without remuneration at a psychiatric hospital to complete her social work degree, was a volunteer and therefore not an employee for the purposes of employment discrimination law). Volunteers also do not have a right to engage in ‘concerted activities for the purpose of collective bargaining’. National Labor Relations Act (NLRA), Sec 7, 29 USC § 157; see Wbai Pacifica Foundation, 328 NLRB 1273, 1275 (1999) (finding that volunteers at a radio station were not NLRA employees because ‘[t]‌hey receive no wages or fringe benefits’). This chapter discusses volunteers under minimum wage and employment discrimination law. For a discussion of how volunteers should be treated under the NLRA, see Mitchell H Rubinstein, ‘Our Nation’s Forgotten Workers:  The Unprotected Volunteers’ (2006) 9 University of Pennsylvania Journal of Labor and Employment Law 147, 171–​9. 3  A notable exception is the literature on the labour of care within the family, which addresses questions such as who should be recognised as a worker for the purposes of a variety of social benefits. For a few examples of this substantial and rich literature, see generally Martha M Ertman, ‘Commercializing Marriage: A Proposal for Valuing Women’s Work Through Premarital Security Agreements’ (1998) 77 Texas Law Review 17; Martha Albertson Fineman, ‘Contract and Care’ (2001) 76 Chicago-​Kent Law Review 1403; Gillian Lester, ‘A Defense of Paid Family Leave’ (2005) 28 Harvard Journal of Law and Gender 1; Dorothy E Roberts, ‘The Value of Black Mothers’ Work’ (1994) 26 Connecticut Law Review 871; Hila Shamir, ‘Between Home and Work: Assessing the Distributive Effects of Employment Law in Markets of Care’ (2009) 30 Berkeley Journal of Employment and Labor Law 404; Noah D Zatz, ‘What Welfare Requires From Work’ (2006) 54 UCLA Law Review 373. This chapter complements this literature by examining the question of who should count as an employee for labour undertaken outside the home. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 17 © Sabine Tsuruda 2018. Published 2018 by Oxford University Press.

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The volunteer–​employee boundary is of particular interest because our understanding of volunteer work—​of what it is and why it is valuable—​is surprisingly under-​theorised and yet the stakes are high with respect to how we fix that boundary.4 Courts typically distinguish volunteers from employees on the basis of a principle of economic dependency: a person has a right to a minimum wage only if she depends for her livelihood on the organisation for which she works; otherwise, she is a volunteer.5 Such an approach can protect against obvious cases of economic exploitation,6 but leaves it mysterious why we should have volunteers to begin with. That is an important question to answer. Volunteers often perform the same kinds of work as paid employees. Volunteers cook, perform clerical work, teach, build homes, and so forth. Employees and volunteers alike can also be vulnerable to discrimination that compromises equal employment opportunity.7 Thus, as recent policy debates surrounding unpaid internships have brought to light,8 how we fix the volunteer–​employee boundary can affect the number of paid jobs and the kinds of barriers people face to accessing the labour market. Volunteering also has a historically gendered character. Women have tended to (and continue to) volunteer at higher rates than men9 and women tend to perform different kinds of volunteer work than men—​women are cooking, cleaning, and performing administrative work, while men are more likely to mentor and coach.10 While these trends may not necessarily be morally problematic, they suggest a risk that the largely unregulated voluntary sector may be reinforcing social inequality.11 Given 4  In discussing volunteer status for purposes of minimum wage law, this chapter focuses on the sort of work for which a person is normally owed a minimum wage. Professional volunteerism, such as volunteer legal services, is thus not a focus of this chapter, as licensed professionals have no right to federal minimum wage when they work in their capacity as professionals. See Fair Labor Standards Act (FLSA), 29 USC § 213(a)(1) (explaining, inter alia, that ‘any employee employed in a bona fide . . . professional capacity’ is not entitled to a minimum wage under the FLSA); 29 CFR 541.304 (2004) (explaining that ‘employee employed in a bona fide professional capacity’ under 29 USC § 213(a)(1) includes licensed attorneys and physicians practising within their respective fields). 5  See eg Tony & Susan Alamo Foundation (n 1) 301 (explaining that whether someone is a volunteer for the purposes of federal wage and hour law turns on whether, as a matter of ‘economic reality’, she depends for her livelihood on the organisation for which she volunteers); Bryson v Middlefield Volunteer Fire Dept, Inc, 656 F3d 348, 352–​4 (6th Cir 2011) (internal quotation marks and citations omitted) (holding that whether a volunteer firefighter was an employee for the purposes of protection from employment discrimination under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e ff (2012), turned on whether the firefighter was an employee under the common law agency test (citing Nationwide Mutual Ins Co v Darden, 503 US 318, 323–​4 (1992))). 6 See Tony & Susan Alamo Foundation (n 1) 292–​3, 299–​303 (finding that ‘associates’, who were recovering from drug addiction and formerly homeless, were entitled to a minimum wage for their work at a religious organisation’s commercial hog farms and gas stations, even though the associates felt that they were religiously motivated volunteers, because the associates were given room and board while they performed such work). 7  See eg O’Connor (n 2) 113–​16 (finding that a plaintiff who worked at a hospital did not have a sexual harassment claim even though her supervisor called her ‘Miss Sexual Harassment’, suggested that she participate in an orgy, regularly made remarks about her attractiveness and sex life, and was working at the hospital to complete her degree, because the hospital did not pay the plaintiff). 8  See eg Alex Williams, ‘For Interns, All Work and No Payoff ’, New York Times (14 February 2014) accessed 19 January 2018 (describing how unpaid internships are replacing entry-​level positions); ‘Do Unpaid Internships Exploit College Students?’, New York Times (4 February 2012)  accessed 19 January 2018 (sharing perspectives from a variety of scholars and practitioners on the legality of unpaid internships). 9  See eg US Bureau of Labor Statistics, ‘Volunteering in the United States, 2015’, US Department of Labor (25 February 2016)  accessed 19 January 2018 (explaining that in 2015, ‘[a]‌cross all age groups, educational levels, and other major demographic characteristics, women continued to volunteer at a higher rate than men’). 10 See US Bureau of Labor Statistics, ‘Charts by Topic:  Volunteer Activities’, US Department of Labor (20 December 2016)  accessed 19 January 2018 (explaining that according to the findings of the 2015 American Time Use Survey, women were more likely than men to do volunteer activities such as ‘food preparation, presentation, and cleanup activities’, in addition to ‘organizing and preparing activities’, whereas men were more likely than women to do ‘teaching, leading, and mentoring activities’). 11  Volunteer organisations may also be less racially diverse than paid workplaces. See Section 3(a).

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all that is at stake, we need an account of why we want to make space for volunteer work—​ why it is valuable in ways that employment tends not to be—​to fix the volunteer–​employee boundary in the best place. To that end, this chapter investigates whether a compelling account of volunteer work’s value can be found and deployed to justify not paying would-​be volunteers a minimum wage. While courts tend to take the value of volunteer work for granted, commentators typically applaud volunteerism on the basis of the work’s civic, humanitarian, and charitable character. Although these aspects of volunteer work may be valuable, as bases for legally distinguishing volunteer work from employment they either overlook the many ways in which volunteer work is meaningful to volunteers or imply an unappealing dichotomy between volunteer work as moral work and employment as amoral work. Many paid employees perform civic, humanitarian, and charitable work as part of their jobs, and the paid workplace’s centrality in social life and regulation by anti-​discrimination law should make the paid workplace well suited for such publicly oriented projects. Volunteer work can, at the same time, fail to be civic, humanitarian, or charitable. A  person may, for example, want to volunteer at a museum simply because she loves art. The defects in these familiar accounts of volunteer work are nonetheless instructive, as they reveal that how we distinguish volunteers from employees not only shapes the material conditions of work, but also implicates our public understanding of the aims of the paid workplace and the moral significance of work more broadly. In this chapter, I propose that volunteer work’s potential to be inclusive with respect to skill and ability offers a compelling set of reasons for carving out legal space for volunteerism. I refer to such inclusivity as merit inclusivity. Often all that is required to volunteer is to sign up or show up at a designated location. The animating purposes of volunteer work can also facilitate merit inclusive cooperative relations. For example, the urgent need for help may move neurosurgeons to administer emergency relief alongside nurses and students. Volunteer work is also voluntary—​one does not need to volunteer to secure a livelihood—​ and often performed outside standard employment hours. As neither a substitute for nor in competition with employment, volunteer work can reduce the costs of trying something new, and can thereby encourage people to work beyond their professional expertise. In contrast, a person’s opportunities for paid work typically depend on her comparative skill and ability. By providing access to forms of social cooperation that reflect shared interest rather than comparative skill and ability, volunteer work opportunities can mitigate the risk that a person’s skills will confine her to certain social roles or arbitrarily limit her opportunities to participate in valuable social projects. A person’s skill and ability can also be a product of her educational opportunities, wealth, and the like. Competitive, meritocratic workplaces and labour markets may accordingly reproduce the same kinds of status-​ based hierarchies anti-​discrimination law aims to lessen. Volunteerism’s merit inclusivity can thus complement employment’s potential to foster social equality along lines of race, gender, and other socially salient statuses by lessening the influence of skill and ability on social organisation. Thus, even if paid workplaces sometimes instantiate aspects of merit inclusivity, the world of employment—​because of its skill-​sensitivity and the competitive pressures firms often face—​is not a stable environment for merit inclusive work. Merit inclusivity can hence justify taking public steps to create space for merit inclusive work outside paid employment. Insofar as permitting organisations to not pay volunteers accomplishes that aim, merit inclusivity recommends excluding volunteers from minimum wage law. Merit inclusivity also supplies a standard for criticising existing practice. If merit inclusivity justifies volunteer minimum wage exclusions, then competitive unpaid internships at film

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studios, the White House, and the like, will be in tension with the justification for that exclusion and should accordingly not fall within its reach. It will also be hard for volunteer work to be merit inclusive if disability discrimination is rampant, and volunteer work will fail to complement work’s potential status-​based inclusivity if volunteer organisations have free rein to discriminate on the basis of race, gender, and other socially salient statuses. Merit inclusivity thus has implications outside the minimum wage context, providing a basis for extending anti-​discrimination protections to volunteers. I begin in Section 2 by arguing that common approaches to conceptualising volunteer work in terms of its civic–​humanitarian, donative, and associational character fail to provide a principled basis for the volunteer–​employee legal boundary. In Section 3, I argue that merit inclusivity can provide such a basis. Section 4 then addresses how merit inclusivity might help us to better locate the legal boundary between volunteerism and employment.

2.  Two Familiar Models of Volunteer Work’s Value (a) Civic duty and humanitarianism Volunteer work’s civic and humanitarian character is a popular basis for valuing volunteer work.12 Volunteers serve food at shelters,13 offer emotional support to hospital patients,14 and rebuild homes in the wake of a disaster.15 Volunteer work is a central part of how we care for one another, of how we act on and express beneficence and civic duty. Although I do not deny that volunteer work may be valuable in these ways, civic and humanitarian work is not performed only by volunteers. Employees at Save the Children and the US Equal Employment Opportunity Commission also do humanitarian and civically minded work. It seems plausible that they might understand themselves as working to help others. And it is not only work at non-​profits that may be so understood: agricultural workers employed by a regional grower might work to support local governance and cultural solidarity.16 More broadly, we might be moved to join the paid workforce ‘to feel that we are contributing to something larger than ourselves and our own families’.17

12  See eg 29 CFR § 553.101(a) (explaining that public sector ‘volunteers’ are not employees so long as they neither expect nor are promised compensation for their work, and work for ‘civic, charitable, or humanitarian reasons’); The White House, Office of the Press Secretary, Memorandum for the Heads of Executive Departments and Agencies: Expanding National Service Through Partnerships (2013) accessed 19 January 2018 (‘National service and volunteering can be effective solutions to national challenges and can have positive and lasting impacts that reach beyond the immediate service experience’). 13  See eg ‘Adopt-​A-​Meal’, Los Angeles Mission accessed 16 May 2016 (‘The Adopt-​a-​Meal program allows volunteer groups to take charge of a meal as though it were their own event. The volunteers will prepare and serve the designated meal for approximately 500 Mission guests’). 14 See eg ‘POOCH Volunteers’, Cedars-​ Sinai Medical Center accessed 16 May 2016 (explaining that POOCH volunteers provide ‘supportive experiences [with dogs] to patients’ by, eg, helping patients play with and walk dogs). 15  See eg ‘Disaster Response Volunteer Opportunities’, Habitat for Humanity accessed 16 May 2016. For other like examples of voluntary activities and organisations, and data about the extent and type of volunteer work in the US from 2013 and 2014, see generally ‘Volunteering in America, Frequently Asked Questions’, Corporation for National Community Service accessed 23 February 2016. 16  Consider, eg, members and proponents of La Via Campesina, an international organisation that aims to facilitate ‘small-​scale sustainable agriculture’ to promote agricultural worker rights and protect agrarian ways of living. ‘The International Peasant’s Voice’, La Via Campesina (9 February 2011)  < https://​viacampesina.org/​en/​ who-​are-​we/​what-​is-​la-​via-​campesina/​> accessed 19 January 2018. 17  Vicki Schultz, ‘Life’s Work’ (2000) 100 Colombia Law Review 1881, 1928. Of course, we might also be moved to join because we simply need the money.

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Of course, some descriptive overinclusiveness is not necessarily a reason for rejecting a civic–​humanitarian model of volunteer work’s value. Overinclusiveness may simply indicate that we have historically erred in sorting work that should be done by volunteers from work that should be done by employees. But I do not think that is the case here. As familiar as the civic–​humanitarian model may be as a description of volunteer work’s importance, as a normative basis for distinguishing volunteer work from employment it is premised on an impoverished view of employment’s moral potential. The model suggests that civic and humanitarian values are not properly at home in employment. Yet why should that be so? To be sure, if the paid workplace were predominantly a forum for self-​interested activity, then perhaps civic and humanitarian values—​because of their cooperative, social character—​would best be realised outside employment. Yet we might also understand employment as a project of harnessing our talents to realise a diversity of public and private aims,18 as providing a ‘stable foundation [of repeated interaction] for a democratic order’19 and embracing our interdependency through mutual aid and support.20 Civic and humanitarian values would be welcome in such a social world of employment. Further, as Cynthia Estlund has argued, the paid workplace’s centrality in social life makes it an especially urgent and promising site for diversity—​for racial integration, for undoing gendered relationships of subordination, and, more generally, for facilitating social bonds between people from different backgrounds.21 The paid workplace can facilitate social ties between people who, but for their workforce participation, might never have encountered one another.22 If employment manifested such inclusivity, the paid workplace would be well suited for civic and humanitarian projects, given the values of equality and mutual recognition that underlie such projects. By treating civic and humanitarian aims as better pursued through volunteer work than employment, the civic–​ humanitarian model thus suggests an unappealing dichotomy between volunteer work and employment, according to which publicly minded work is best done outside the world of employment. The civic–​humanitarian model is also overly narrow in its vision of volunteerism. Many instances of volunteer work are neither civic nor humanitarian. For example, people might volunteer at the opera because of their love of music. Volunteering is a pluralistic practice, as diverse as the associations we might form with one another and the conceptions of the good life we might pursue. By taking such a narrow view on volunteerism’s value, the civic–​humanitarian model risks overlooking the many ways in which volunteering is meaningful for people. We should at least enquire whether these other forms of volunteering are valuable before we endorse a model of volunteerism that marginalises them. 18  John Rawls suggests such a vision for the paid workplace: [E]‌ven when work is meaningful for all, we cannot overcome, nor should we wish to, our dependence on others. In a fully just society persons . . . rely upon their associates to do things they could not have done, as well as things they might have done but did not . . . It is a feature of human sociability that we are by ourselves but parts of what we might be . . . The division of labor is overcome not by each becoming complete in himself, but by willing and meaningful work within a just social union of social unions in which all can freely participate as they so incline. John Rawls, A Theory of Justice (The Belknap Press of Harvard University Press 1971) 529. 19  Schultz (n 17) 1928. See generally Cynthia Estlund, Working Together: How Workplace Bonds Strengthen a Diverse Democracy (OUP 2003) 118. 20 Estlund (n 19)  110–​12 (discussing Émile Durkheim’s position that the division of labour can facilitate solidarity); Rawls (n 14) 529. 21  Estlund (n 19) 4–​5, 138–​9. 22 ibid.

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(b) Volunteering as gift giving Perhaps it is not volunteerism’s civic and humanitarian character but its donative character that makes volunteer work a special moral arena. Volunteer work is typically done without expectation of a wage and volunteers often describe their own work as ‘giving back’.23 Giving a gift of labour is, of course, not the only way to communicate beneficence and gratitude to others. Money and goods often suffice. But sometimes gifts of money are inappropriate,24 and people may not have enough money to purchase the relevant gift. Although a person may not be able to buy someone a new home, she might still be able to help build one. Volunteerism can thus make gift giving more inclusive and provide a wider range of expressive contexts. I agree that volunteer work is a valuable part of gift giving, but doubt that that fact can offer a principled basis for legally distinguishing volunteerism from employment. If what makes volunteer work donative is its being performed from a donative motive, then a gift-​giving model runs into one of the same problems as a civic–​humanitarian model: the model is underinclusive of volunteering and may therefore overlook many meaningful forms of volunteering. A  person might join her neighbourhood association, helping to run regular meetings and organise local events, not because she wants to give back to her community, but because she feels she has a civic duty to participate in local governance. Similarly, another person might lead religious liturgies as a form of worship, while yet another might set up tents and cook food to occupy Wall Street out of social protest. This is not to say that acting from duty and donative motives are mutually exclusive; we may sometimes be morally required to give gifts.25 My point is rather that volunteering need not be performed from donative motives. Volunteering provides contexts for acting from a variety of motives. A  theory of volunteer work’s value should be able to explain that diversity. A donative model of volunteerism may also be overinclusive. Lawyers often speak in the register of gift when they describe pro bono work,26 even though pro bono hours are often treated as billable hours for purposes of salaries and bonuses.27 Employees at charitable and humanitarian institutions, such as Save the Children, may also be motivated by a desire to give to others, even though they are paid a salary for their work. In such cases, a donative motive may still be possible because the work ultimately produces a gift—​legal services, food—​for the recipient. It would be regrettable if this were not the case, because then perhaps only the very rich would have the opportunity to make it their life’s work to help others.

23  Joyce Rudolph, ‘Community: Three Seniors Honored for Their Volunteer Work’, LA Times (16 December 2015) accessed 22 June 2017 (‘The feeling that one gets out of volunteering and giving back to the people in your community—​the rewards are indescribable . . .’); see Rubinstein (n 2). 24  For a discussion of duties of gratitude and the potential moral difficulties of giving someone a gift, and thereby placing them under a ‘debt of gratitude’, see generally Barbara Herman, ‘Being Helped and Being Grateful: Imperfect Duties, the Ethics of Possession, and the Unity of Morality’ (2013) 109 Journal of Philosophy 391. 25  See Herman (n 24). 26  See eg Scott L Cummings and Deborah L Rhode, ‘Managing Pro Bono: Doing Well by Doing Better’ (2010) 78 Fordham Law Review 2357. 27  eg ‘Akin Gump Strauss Hauer & Feld LLP’ in Matthew J Moody (ed), Vault Guide to Law Firm Pro Bono Programs (Vault 2016) 14 (reporting that Akin Gump gives billable hour credit for pro bono hours, considers pro bono hours for the purposes of yearly bonuses, and has no limit on how many pro bono hours may be applied towards the target amount of billable hours); see also Alan Gutterman, Hildebrandt Handbook of Law Firm Management (LegalWorks 2015) § 12:10 (‘A survey of major law firms conducted by the Pro Bono Institute in 2005 found that the majority of law firms now provide billable hour parity [for pro bono work] . . . for purposes of meeting billable hour targets’).

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Employment’s potential to be inclusive as to race, gender, and other socially salient social statuses may also make the paid workplace’s involvement in philanthropy particularly important. White people are historically overrepresented in donor populations, and donor priorities and values may differ along racial lines.28 Status inclusivity in the paid workplace can help make philanthropy more sensitive to the situation of recipients,29 and may lessen risks of stereotyping or pressuring recipients to conform to disempowering victim tropes.30 But perhaps I have been overly focused on donative motives rather than the donative structure of volunteer work. Borrowing from the idea of a donative promise under US contract law, what makes volunteer work donative, one might argue, is that volunteer labour is not supported by consideration—​the work is not exchanged for money or some other bargained-​for good,31 service, forbearance, or promise of later performance.32 In contrast, even when a given paid position involves producing or providing a gift, the work is not donative in this contractual sense because the worker is paid by an employer, and the fact that she is paid at least in part explains why she is performing that work for her employer. Even if such a contract view of volunteer work as donative can avoid the over-​and underinclusiveness worries, I am not sure the view adds much to the doctrinal proposition we started with: that volunteer work is simply some kind of work that is not performed for securing a livelihood.33 What seems to make volunteer work donative on this contract view is that the work is simply unpaid or otherwise unremunerated. But that provides little guidance as to what kind of work we should include in that category. Should we, for instance, treat prestigious unpaid internships at government agencies the same way that we treat part-​time soup kitchen volunteers? And why should we have any volunteers to begin with? What would be lost if all labour had to be paid? The fact that volunteer work is unbargained for seems to say little about what values are at stake in such questions.

3. Inclusivity As the shortcomings of the civic–​humanitarian and donative models of volunteer work illustrate, workforce participation is a major way in which people develop ideas and values, form relationships, understand themselves, and implement conceptions of the good life. Indeed, the workplace may be one of the most central and pervasive contexts for social cooperation.34 People spend much of their waking hours in the paid workplace and form lasting relationships with co-​workers.35 This is not simply because most people need 28  See Emmett D Carson, Diversity in Giving: The Changing Landscape of American Philanthropy (2015) accessed 22 June 2017. 29 ibid. 30  For a discussion and illustration of such pressures, see generally Jasmine Phillips, ‘Black Girls and the (Im) Possibilities of a Victim Trope: The Intersectional Failures of Legal and Advocacy Interventions in the Commercial Sexual Exploitation of Minors in the United States’ (2015) 62 UCLA Law Review 1642. Similar issues surround Northern giving to the global South. See eg Teju Cole, ‘The White Savior Industrial Complex’, The Atlantic (21 March 2017) accessed 19 January 2018. For a related discussion of how international human rights discourse and practice may similarly reflect race-​based victim stereotypes, see generally Makau Mutua, ‘Savages, Victims and Saviors: The Metaphor of Human Rights’ (2001) 42 Harvard International Law Journal 201. 31  ‘To constitute consideration, a performance or return promise must be bargained for.’ Restatement (Second) of Contracts § 71(1) (1981). 32  See Restatement (Second) of Contracts §§ 71(3), 75 (1981). 33  See text accompanying n 5. 34  See Estlund (n 19) 4–​5, 12, 125. 35  Such a potential for ongoing relationships may be eroding through rising temporary work and underemployment. See Arne L Kalleberg, Good Jobs, Bad Jobs: The Rise of Polarized and Precarious Employment Systems in the United States, 1970s to 2000s (Russell Sage Foundation 2011); Gillian Lester, ‘Careers and Contingency’ (1998) 51 Stanford Law Review 73, 78–​87 (discussing challenges of analysing ‘contingent’ employment due to its

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to work to earn a living, but also because employment has personal and cultural significance. Workforce participation can ‘provide[] people with a sense of belonging and contributing to something of value to a group larger than ourselves or our loved one[s]‌ . . .’36 Hence, a person may feel a concomitant loss of self-​esteem with a loss of employment.37 Workforce participation is also tied to conceptions of equal citizenship38—​with rejections of feudalism,39 emancipation from slavery,40 and women’s freedom from being destined to domestic work within the family.41 A person’s workforce participation may, of course, also be demeaning and stigmatising, but that is further evidence of the social and personal salience of work.42 Because of its social significance, the paid workplace is an especially important place for social inclusion.43 Making the paid workplace inclusive of race, gender, and other socially salient statuses helps ensure fair access to a livelihood and that our primary ways of interacting with one another are not structured by status-​based (such as patriarchal or racist) hierarchies. Status inclusivity in our major social institutions is also a way of publicly repudiating the idea that race, gender, and the like, may arbitrarily limit opportunities for pursuing meaningful life projects and accessing positions of power. Fostering status inclusivity in employment can thus be understood as a continuation of the larger projects of emancipation that made wage labour—​as opposed to forced labour or labour compensated in-​kind—​such an important step forward.

(a) Volunteer work’s merit inclusivity Part of what makes the paid workplace a promising site for status inclusivity is that workforce participation is typically non-​voluntary—​we ordinarily have to work in order to secure a living44—​and the paid workplace is regulated by anti-​discrimination law.45 Volunteer work, in contrast, is voluntary and not subject to employment discrimination law.46 And, in practice, volunteer work may actually be less diverse with respect to status than paid

heterogeneity, and suggesting instead that lawmakers refocus reform efforts on underemployment—​‘employment in a job that undervalues one’s labor relative to that of other workers with the same abilities, availability, and desires’). For an analysis of the international and political dimensions of precarious employment, see Guy Standing, The Precariat: The New Dangerous Class (Bloomsbury Academic 2011). 36  Schultz (n 17) 1888. 37  ibid 1888–​90. 38  See generally Kenneth L Karst, ‘Coming Crisis of Work in Constitutional Perspective’ (1997) 82 Cornell Law Review 523; Schultz (n 17) 1886–​8. 39  See eg Debra Satz, Why Some Things Should Not Be for Sale: The Moral Limits of Markets (OUP 2010) 24. 40  See Schultz (n 17) 1887–​9 (discussing the ‘complex legacy’ of identifying the freedom to sell one’s labour—​ rather than, say, freedom to own ‘productive property’—​with social and political ‘independence’); Allegra M McLeod, ‘Prison Abolition and Grounded Justice’ (2015) 62 UCLA Law Review 1156, 1188–​92 (linking the US post-​Civil War history of prison labour to attempts to reproduce de facto slavery). 41  See eg Schultz (n 17) (arguing in favour of policies collectivising housework rather than paying women for care to their own families); Vicki Schultz and Allison Hoffman, ‘The Need for a Reduced Workweek in the United States’ in Judy Fudge and Rosemary Owens (eds), Precarious Work, Women, and the New Economy: The Challenge to Legal Norms (Hart 2006) 131. 42  See eg Tommie Shelby, Dark Ghettos:  Injustice, Dissent, and Reform (Harvard University Press 2016) 199 (explaining that often the work available to poor black women is ‘domestic service in the homes of affluence white families’ that reinforces the ‘ideological image of the “mammy” . . . used to justify the exploitation and subordination of black women under slavery’); Patricia Hill Collins, Black Feminist Thought (2nd edn, Routledge 1999) 48–​ 64 (describing how black women’s work after the Civil War has repeatedly recreated relationships of ‘interpersonal domination’ and domestic service reminiscent of slavery and American apartheid). 43  See Estlund (n 19) 34, 125. 44  Or we need to form an economic unit with someone who performs paid work, such as through marriage. See eg Noah D Zatz, ‘Revisiting the Class Parity Analysis of Welfare Work Requirements’ (2009) 83 Social Service Review 213. 45  See Estlund (n 19) 13–​15. 46  See n 2.

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work.47 The composition of neighbourhood-​based volunteer organisations may reproduce the racial composition of the neighbourhood. Women tend to do different kinds of volunteer activities than men.48 Yet even if volunteer work is presently less status inclusive than employment, volunteer work may still be inclusive in ways that employment systematically tends not to be. In particular, volunteer work may instantiate merit inclusivity—​inclusivity with respect to people of different skills and ability. A remarkable and underemphasised feature of volunteer work is that it can be quite easy to volunteer. Often all that is required to, for example, help build houses for Habitat for Humanity or serve food at a local shelter, is to sign up and show up. So long as you can serve food, it may not matter whether you can serve twenty or ten people per hour to volunteer at a local shelter. And if you do not have the requisite skills, training may be provided,49 someone may be assigned to help you,50 or the organisation may try to find some other way for you to be present and engaged. In contrast, a person’s employment opportunities are normally a product of pre-​existing skills and how that person compares to others in the labour market. Paid workplaces may, of course, be diverse with respect to skill and ability. A person does not need to be a physician to work at a hospital, or a career politician to help run a campaign. But for a workplace to also be inclusive, it must be more than numerically diverse. An inclusive workplace evinces a willingness to welcome and accommodate difference. A workplace may, for instance, be diverse with respect to women based on the number of women it employs, yet not inclusive if it is insensitive to the distinctive social pressures women face to be primary caretakers.51 Similarly, paid workplaces may be diverse as to skill and talent, but generally fail to be inclusive on that basis. To access the factory floor or a campaign headquarters as an employee, a person ordinarily must go through a competitive hiring process. Even when work is denominated as ‘unskilled’, it can still be done better and worse, and employers may still select and promote on that basis.52 It is precisely on the basis of skill and ability that a candidate is typically welcomed to be present and participate in a paid workplace and any role therein. But to be welcomed as a volunteer, it is often because you satisfy some other, non-​ meritocratic criteria. To volunteer to help organise my neighbourhood’s annual Fourth of July Parade, I need only show that I am a local resident and pay the low yearly neighbourhood association fee.53 And indeed such inclusivity may be an aim of the association—​to facilitate community ties between retirees, retail workers, stay-​at-​home parents, professors, teenagers, and people who, for whatever the reason, never have been able to (or never will be able to) enter the paid workforce. There are, of course, zones of volunteering that require specialised skill. Emergency medical relief should be provided by qualified people; there seems to be no good reason not to give Ebola patients, or earthquake victims, anything less than the best medical care available. But even then, the relief efforts may lack a rigid skill-​based division of labour. Cardiothoracic surgeons might administer vaccines alongside general practitioners and 47  See Estlund (n 19) 8–​9. 48  See n 10. 49  See eg ‘Adult Volunteers’, Cedars-​Sinai Medical Center accessed 31 May 2016 (indicating volunteers need not have prior hospital experience and that volunteers will be provided with ‘[j]‌ob-​specific training’ for their volunteer work if needed). 50  See eg ‘Volunteers’, Chelsea Opera accessed 30 May 2016 (describing opportunities to volunteer in the Chelsea Opera’s management and production activities with ‘[n]‌o prior experience’, and explaining that the Opera ‘will provide any necessary guidance and/​or training’). 51  See Schultz and Hoffman (n 41) (arguing that a 35-​hour working week could relieve such pressures). 52  I am indebted to Seana Shiffrin for drawing my attention to this point. 53  See ‘Join OPA!’, Ocean Park Association accessed 20 May 2016.

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college students.54 Volunteer legal work may similarly engage attorneys from a variety of backgrounds in the provision of the same legal services—​a partner at a business law firm may volunteer alongside a junior public interest attorney in the same landlord–​ tenant case.55 To be clear, this is not to say that professional volunteerism ought to be merit inclusive. Indeed, merit inclusive professional volunteerism should give us pause, as the often short-​ term and welcoming character of professional volunteerism may compromise the ongoing attention and expertise that proper legal and medical services require. But professional volunteerism is typically not the sort of work excluded from minimum wage law on the basis of its voluntariness.56 Lawyers and physicians, for example, already lack a right to minimum wage whenever they work in their capacity as professionals, regardless of whether their work is voluntary.57 This suggests that the volunteer work enabled by minimum wage exceptions is not professional volunteerism, but rather volunteer work that is liable to be mistaken for work for which a minimum wage is owed. These examples of professional volunteerism are nonetheless instructive, illustrating that merit inclusivity operates along a continuum and that the aims of a volunteer organisation (such as supplying an emergency need) can produce merit inclusive access and cooperative structures even when the work is fairly specialised. The flexible and voluntary character of volunteer work can also foster merit inclusivity. Volunteer work is often part-​time, after typical workday hours, on weekends, or for limited tours of service. Employment is typically full-​time, indefinite, and immersive. To be sure, paid work may be part-​time and during weekends and evenings. But how flexible the work is and when one works is usually dictated by the amount and type of work the employer needs, and employees face economic pressure to conform to those needs to remain employed or advance in their workplaces. In contrast, when people do not need to volunteer to access a living,58 there is little economic pressure to volunteer at the same organisation indefinitely or regularly. By complementing rather than competing with employment, volunteer work can enable people to try new forms of work that they might not want to do long term, and can encourage people to work outside their professional background without the fear of compromising their livelihood. Volunteer work’s flexible and voluntary character can thus draw people from a wide range of skill and ability by lowering the costs of trying something new.

(b) Opportunity, identity, and recognition Although employment can and should provide opportunities for acting from moral motives—​such as civic and humanitarian ones—​not everyone may have the background to compete for a full-​time position as, for example, a litigator for the National Association for the Advancement of Colored People (and not everyone may want to do such work full-​time). But it does not follow that people should have to forgo the chance to further racial justice. Volunteer work’s merit inclusivity thus helps to explain why we might have thought that volunteer work’s value consisted primarily its civic–​humanitarian and donative character: it

54  I am indebted to Noah Zatz for this example. 55  See ‘Volunteer Opportunities for Attorneys’, Legal Aid Foundation of Los Angeles accessed 16 June 2017. 56  See n 4. 57 ibid. 58 ‘Volunteer’ work performed to access certain sectors of the labour market offers a contrast. See eg O’Connor (n 2).

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is not that civic–​humanitarian or donative values are best or primarily realised through volunteer work, but rather that merit inclusive volunteer work can make civic–​humanitarian and donative projects (and a variety of other projects) widely available. Opportunities for merit inclusive volunteer work can thereby help to lessen the risk that a person’s skills will silo a person in any particular cooperative role. Workforce participation can encourage us to hone particular skills at the exclusion of others and to hence narrow our real employment opportunities. That is not necessarily regrettable; the refinement of one’s skills can be a joy for oneself and others.59 But while the jobs we do may sometimes be an expression of our own tastes and personality, occupations and workplaces often have distinctive cultures. We may reasonably feel pressure to conform to that culture and tailor our self-​presentation accordingly.60 Over time, a Google employee may come to see herself as a Googler; a teacher’s status as an educator may become the dominant lens through which she understands herself.61 In the more pernicious cases, an employee may come to feel alienated from her gender identity or ethnicity after years of trying to fit into a patriarchal workplace.62 Volunteer work’s merit inclusivity can, in contrast, provide people with opportunities to occupy social roles that are unrelated to the professional (or interpersonal) roles they have come to occupy. Mary does not need to be only a Googler, or mother to Omar and wife to Jean; she can also be a political activist and an amateur astronomer. This is not to suggest that simply being just one of those would be regrettable. Rather, volunteer work’s merit inclusivity can provide people with opportunities to express the many dimensions of their personality, and to cultivate a personal identity that is not limited to the form of their workplace contribution or their roles at home (both of which may be a matter of accident and happenstance, or the outcome of inegalitarian social forces, although of course that need not be the case). In turn, volunteer work can welcome people into roles that value their contributions independently of their employability. To be sure, we may form workplace friendships, and admire of our co-​workers’ ways of thinking and acting even when they have little to do with how well their filing system works, or how quickly they can toss a bag of vegetables into the bed of a moving truck. Even so, a person’s status within her workplace as a cooperator—​as evidenced by promotions, her leadership roles, bonuses, and the like—​typically depends on how she displays the skills for which she was hired. Thus, although the paid workplace may be uniquely situated to facilitate relationships of mutual respect across race, gender,

59  See Rawls (n 18) 429–​31, 471. 60  See Seana Valentine Shiffrin, ‘What’s Really Wrong with Compelled Association?’ (2005) 99 Northwestern University Law Review 839, 851–​73. As workplace relationships become less structured and increasingly temporary, the workplace may not have such an influence over employees. See Katherine VW Stone, From Widgets to Digits: Employment Regulation for the Changing Workplace (CUP 2004) 67–​70, 92–​4, 112–​14; James D Nelson, ‘The Freedom of Business Association’ (2015) 115 Columbia Law Review 461 (arguing that the new employment relationship tends to make it less likely that employees will come to identify themselves with workplace norms). 61  See Christine M Korsgaard, The Sources of Normativity (CUP 1996) 101 (‘[A practical identity] is a description under which you value yourself, a description under which you find your life to be worth living and your actions to be worth undertaking . . . You are a human being, a woman or a man, an adherent of a certain religion, a member of an ethnic group, a member of a certain profession, someone’s lover or friend, and so on’). 62  See Devon W Carbado and Mitu Gulati, ‘Working Identity’ (2000) 85 Cornell Law Review 1259 (explaining that employees who are ‘outsiders’ with respect to their workplace’s conception of a successful person will tend to put on ‘identity performances’ to counteract stereotypes attached to their race, gender, and the like, and may also relatedly feel pressured to engage in self-​denial); Kenji Yoshino, Covering: The Hidden Assault on Our Civil Rights (Random House 2006) (‘To cover is to tone down one’s disfavored identity to fit into the mainstream’).

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and other status-​based lines, meritocratic structures may encourage valuing one another’s contributions primarily on the basis of the instrumental qualities of our labour, such as how quickly we can perform tasks. In contrast, by de-​emphasising comparative performance, volunteer work can create cooperative contexts for acknowledging the non-​instrumental qualities of people’s labour. As volunteers for our neighbourhood association, we might value the elaborate dishes you cook for our meetings because they express your thoughtfulness or creativity, even if the dishes sometimes taste a little peculiar, and accordingly you may continue to play that role in our organisation. Should we decide to paint a mural, our community might find our work beautiful even if it reveals our lack of training because the mural communicates our backgrounds or the fun we had making it. To be clear, this is not to say that volunteer work is valuable an arena for low-​quality production. I  raise these examples where market standards and the basis for recognition diverge to highlight that people’s contributions to social projects can be valuable for reasons beyond the quality of what they produce, and that volunteer work provides contexts for making and publicly recognising those contributions. Volunteer work can thus provide expanded opportunities for expression, self-​definition, and mutual recognition. In addition to having independent value, such opportunities complement the paid workplace’s ability to, through its status inclusivity, facilitate relations of social equality. Underlying the democratic ideal of social equality is an ideal of moral equality. A person’s claim to the social conditions of equality arises from her moral personality—​her capacity to responsibly form, revise, and pursue a conception of the good, and to cooperate with and regard others as having like capacities. Part of what it is to regard a person as a moral equal is to value those aspects of her moral personality. By ‘value’ here, I mean to treat as important (not simply to like or endorse), and hence, to give those aspects of a person contexts for development and realisation. For example, for a parent to value her child’s potential for knowledge, it is not enough that she enjoys talking to her child; the parent must strive to develop that potential through education and by equipping the child with the confidence to pursue knowledge throughout her life. Similarly, to value one another as moral equals, we must provide one another with contexts for developing and realising our moral personality. The paid workplace, when it is status inclusive, can be such a context, offering opportunities for cooperation and joint-implementation of values and goals. But what values a person might reasonably adopt, who a person is, and how she might express those values and that personality through her social cooperation, far outstrip the expressive and cooperative possibilities her skill sets may provide her with through employment. Opportunities for volunteer work can give those important aspects of moral personality further contexts for development and exercise, and thereby complement the aims of status inclusivity that properly animate regulation of the paid workplace. That is especially true under the non-​ideal social conditions in which we live today, where skill and ability is often a reflection of the quality of the schools we attended, our family’s economic resources, and other social investments made (or not made) in developing our talents. Insofar as those opportunities and resources reflect racial, gender, and other forms of status inequality, skill-​based hierarchies and inequalities in opportunity risk reproducing the very kinds of status-​based hierarchies that anti-​discrimination law aims to eliminate in public life. Merit inclusive volunteer work can accordingly complement anti-​discrimination law’s aims of status inclusivity by lessening the influence of skill over how we define ourselves and what projects we pursue.

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4.  Implementing the Value of Volunteer Work It is, of course, conceivable that a paid workplace might manifest aspects of merit inclusivity. An employer could loosen or altogether set aside meritocratic hiring criteria to welcome people back into the world of employment after prison sentences, or periods of homelessness and drug addiction. A paid workplace could also be organised without any kind of skill-​based hierarchy; workers might take turns performing different roles and be paid roughly the same wage. The mere fact that a position is paid need not preclude the work from realising many of the values of merit inclusivity. Notwithstanding these possibilities, the world of paid employment is not a stable home for merit inclusive work. Firms often face competitive pressures to hire and promote (or demote) on the basis of skill. And some kinds of work may, as a moral and legal matter, demand a high level of skill and skill-​based organisation. Consider surgical work and legal services. These needs and pressures thus count against taking a taking a wholly laissez-​faire approach to the creation of merit inclusive work. Even if merit inclusivity—​because of cultural norms or other social forces—​were likely to arise in paid workplaces, there would still be value in taking public action to explicitly create space for merit inclusive work. If the reasons for creating space for merit inclusive work were made public, such an action could communicate a shared commitment to the idea that each person, regardless of her skill or ability, has an equal claim to general social conditions for self-​definition and to participate in public social life.

(a) Minimum wage exclusions and unpaid internships Excluding volunteers from minimum wage law can count as an effort to publicly create space for merit inclusive work. Pay threatens the voluntariness that can encourage people to work outside their area of expertise. Pay can also (though it need not always) operate as a meritocratic incentive, facilitating skill-​based competition in hiring and in internal cooperative structures. But perhaps more importantly, a minimum wage exclusion creates legal space for work within that exclusion to be performed outside the world of employment and the labour market more broadly. A minimum wage exclusion can thus create a protected space for merit inclusive work to develop and thrive. Much depends, however, on the standard with which we determine whether a given kind of work is excluded. Unless that standard reflects the features and values of merit inclusivity, that standard will neither guarantee nor communicate that the exclusion has created a protected space for merit inclusive work. The current US federal approach to determining whether someone is a volunteer illustrates both this potential and limitation. Under that approach, a person is an employee and not a volunteer if she depends for her livelihood on the organisation for which she purportedly volunteers.63 In applying this test of economic dependency, courts consider not only expectations of compensation, but all of the economic circumstances surrounding the relationship, including factors that seem clearly probative of whether the work is meritocratic, such as whether the volunteer is ‘hired’, the degree of skill required to volunteer, the length

63  Tony & Susan Alamo Foundation (n 1) 301 (citing Goldberg v Whitaker House Cooperative, Inc, 366 US 28, 33 (1961)).

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of time and regularity of the work, and the impact of performance on the volunteer’s livelihood.64 But the test suffers from one significant ambiguity: it is unclear how weighty the compensation factor is, and hence, whether pay is required for employee status. The US Supreme Court has suggested that it might be open to a remuneration requirement for distinguishing volunteers from employees, noting that federal wage and hour law was ‘obviously not intended to stamp all persons as employees who, without any express or implied compensation agreement, might work for their own advantage’.65 But just because a position is unpaid does not mean that it is merit inclusive. Consider, for example, prestigious unpaid internships at the White House and film studios. While these positions may be unpaid, they are typically full-​time and span several months, and are highly competitive. They may also be instrumental in accessing occupations within the labour market, and hence, because of their impact on future livelihood, are not truly voluntary. By permitting merit exclusive work to fall within the legal category of volunteerism, such an approach would fail to guarantee a protected space for merit inclusive work. A remuneration-​based standard for excluding volunteers from minimum wage law leaves it open that the world of volunteerism might become merely an adjunct of the labour market, a space where people acquire qualifications or are submitted to rites of passage to access sectors of the paid labour market. A remuneration requirement would in turn compromise the minimum wage exclusion’s communicative potential, leaving it unclear whether the exclusion served merit inclusivity, let alone why. Searching for an account of volunteer work’s value can thus help us better understand the limitations of and potential for different standards for employee status to foster social conditions for equality and personal autonomy, and to then fix the boundaries of employment to ensure that they stably foster such conditions. To be sure, merit inclusivity need not be the only moral basis for excluding certain kinds of work from minimum wage law. But whatever further values inform volunteer exclusions, they should not compromise those exclusions’ ability to create space for merit inclusive work and communicate the values of merit inclusivity. Thus, even if there were sound moral reasons for permitting competitive internships to be unpaid, such internships should at least be excluded in a way that marks them out as importantly different from volunteer work. And whatever standards are used to pick out lawfully unpaid internships, we should enquire what those standards communicate about the paid workplace. To briefly illustrate these methodological principles, consider a recently developed approach to legalising unpaid internships. Some lower courts exclude unpaid internships from minimum wage law when and because the intern is the primary educational and professional beneficiary of the position.66 For example, in Wang v Hearst Corporation,67 six former interns at magazines such as Harper’s Bazaar claimed that their unpaid internships violated federal minimum wage law.68 While the interns performed work similar to paid

64  See eg Evers v Tart, 48 F3d 319, 320–​1 (8th Cir 1995) (finding that certain poll workers were volunteers for the purposes of the FLSA in part because the workers had ‘worked from as few as no days during the year to eight days during the year, depending on the number of elections held in a given year[,]‌[and did] not apply for their jobs’). 65  Tony & Susan Alamo Foundation (n 1) 302 (quoting Walling v Portland Terminal Co, 330 US 148, 152 (1947). The Ninth Circuit has treated this suggestion as the legal standard for employee status for the purposes of federal minimum wage law. See Williams v Strickland, 87 F3d 1064, 1067 (1996) (holding that a participant in a six-​month work therapy programme administered by the Salvation Army was not an employee entitled to federal minimum wage because he had ‘neither an express nor implied compensation agreement with the Salvation Army’). 66  See eg Glatt v Fox Searchlight Pictures, Inc, 811 F3d 528, 536–​7 (2d Cir 2016). 67  203 F Supp 3d 344 (SDNY 2016). 68  ibid  348–​9.

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employees, such as data entry, the court also noted that some of the interns received educational credit for some of their work, received informal career counselling, ‘learned tangible skills’ for sales and advertising, and ‘gained the intangible value of exposure to the practical realities of jobs in their respective fields’.69 The court concluded that the unpaid internships had educational value that ‘tip[ped] decidedly . . . toward the conclusion that the Plaintiffs were properly classified as interns’.70 Although I  cannot fully explore the matter here, such an educational model suffers from defects similar to the civic–​humanitarian and donative models of volunteer work. By distinguishing unpaid internships on the basis of educational value, the exclusion seems to suggest that employment is not an appropriate or stable arena for learning new job skills and developing an understanding of an occupation. Not only does that seem false, but even if it were true, why shouldn’t practical education be a major part of paid work? Having an ongoing understanding of the kind of work you do is a precondition for making personally and socially responsible choices about what kind of work to do, how to work with others and interact with consumers, and manage environmental impact and other larger social risks of production.

(b) Anti-​discrimination and associational freedom As the case of unpaid internships illustrates, the normative standards with which we locate the volunteer–​employee boundary have both substantive and methodological implications for the boundaries of employment more broadly. Those standards also have application outside the minimum wage context. In particular, while excluding certain volunteers from minimum wage law can create space for merit inclusive work, merit inclusivity may also require regulation by anti-​discrimination law. Anti-​discrimination norms can require organisations to make reasonable accommodations for physical and mental disability.71 Volunteer work’s value seems to require making precisely such accommodations to make volunteer work genuinely welcoming of people with different skill and ability. It is also hard to see how volunteer work could complement employment’s status inclusivity if racial, gender, and other status-​based discrimination were rampant in volunteer organisations. Realising the values of merit inclusivity in volunteer work may therefore require extending anti-​discrimination protections to volunteers. There are, to be sure, constitutional limits to regulating volunteer work with anti-​ discrimination law. Volunteerism often occurs within voluntary associations. Requiring a voluntary association to admit members by operation of anti-​discrimination law can violate the associational rights of pre-​existing members when the admission would undermine the animating purposes or message of the association.72 Subjecting religious voluntary organisations to anti-​discrimination law may also violate the free exercise rights of adherents.73 Even so, these constitutional limits might still leave ample room to regulate secular 69  ibid 351, 354. 70  ibid  354–​5. 71  See eg Americans with Disabilities Act, 42 USC § 12112(b)(5)(A) (explaining that it is discrimination ‘on the basis of disability’ to fail to ‘mak[e]‌reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee’). 72 See Boy Scouts of America v Dale, 530 US 640, (explaining that ‘forced membership [in a voluntary association] is unconstitutional if the person’s presence affects in a significant way the group’s ability to advocate public or private viewpoints’, even if that membership is ‘forced’ by application of anti-​discrimination law). For an argument that such an interpretation of associational freedom is misguided, see Shiffrin (n 60). 73 See Hosanna-​Tabor Evangelical Lutheran Church & School v EEOC, 132 S Ct 694, 706 (2012) (holding that applying employment discrimination law to the employment relation between churches and ‘ministers’ violates the free exercise rights of adherents).

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volunteer work because the aims of many voluntary associations seem compatible with anti-​discrimination norms. For instance, why would a hospital need to sexually harass its volunteers? Further, the values underlying merit inclusivity suggest a moral limit on constitutional defences of discriminatory volunteerism. I have argued that creating space for volunteer work is a part of producing conditions and relations of social equality, and that volunteer work can produce such conditions when and because it provides for a special kind of association—​association that values a person’s cooperative contributions independent of the comparative skill with which those contributions are made. If I am ultimately correct, merit inclusivity is itself an associational value and, accordingly, we may want to look for ways to harmonise merit inclusivity with other associational values, rather than subordinate merit inclusivity to those other values. The case of volunteer work thus illustrates that investigating the boundaries of employment not only matters for the world of work, but may also enrich our understanding of broader moral and political values, such as associational freedom.

5. Conclusion While courts tend to take the value of volunteer work for granted, it is surprisingly difficult to identify what, if anything, about ‘ordinary volunteerism’ recommends that it be unpaid. Yet the risks of job replacement and the often non-​diverse character of volunteerism demand an explanation, and popular accounts conceptualising volunteer work as civic–​ humanitarian work and donative work are unsuccessful. These accounts, I  have argued, either fail to capture the many ways in which volunteering is meaningful for people or suggest a view of employment as paradigmatically amoral work. But they illustrate an important feature of the volunteer–​employee boundary: where we locate that boundary not only shapes what values and relations we have in the world of volunteerism, but also our public understanding of the aims of the paid workplace. Instead of asking what kinds of substantive aims make volunteer work an important moral arena, I have proposed that volunteer work’s potential to be a protected space for an overlooked but important form of association can justify excluding volunteers from minimum wage law—​merit inclusive association. Opportunities for performing merit inclusive work can provide expanded opportunities for moral agency and self-​definition, and for valuing each other’s contributions on bases beyond our labour’s instrumental qualities. Creating protected space for merit inclusive work can thus complement employment’s status inclusivity in helping to foster social relations of equality. That potential is compromised when we include merit exclusive work in the legal category of volunteer work, such as unpaid internships, and also when we fail to extend anti-​discrimination protections to volunteers. The inclusivity values that underpin the volunteer–​employee boundary accordingly recommend re-​examining constitutional limitations on anti-​discrimination regulation in the voluntary sector. The boundaries of employment thus not only implicate values within the world of employment, but also how we order and conceptualise broader associational and equality values.

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18 Reinforcing the Philosophical Foundations of Social Inclusion: The Isolated Worker in the Isolated State Mark Freedland* 1.  Introduction—​Two Shaky Pillars of Social Inclusion This chapter represents an attempt to compare the state of the philosophical foundations in two parts of labour law’s edifice which seem on the face of it to be very distant from each other, namely the law of the contract of employment and the law of labour migration. The choice to make this comparison arose from the fact that these are my current special interests within the field of labour law; the contract of employment has been so throughout my time as a scholar of labour law, while the law of labour migration has been a growing preoccupation of mine in recent years. As will shortly be explained in more detail, I embarked upon this comparison with a certain preconception of its outcome; but my enquiry has brought me to a different destination and a more ambitious argument than the one which I originally had in mind. As will also of course be explained in detail, that argument became embodied in the two complementary notions of the ‘isolated worker’ and the ‘isolated state’. The argument is at one level rather specially contingent upon the current state of labour law in the UK and in the US, and I should like to think that it might in that sense be an ephemeral one; but I fear that the conditions in which it is presented may be all too long-​lasting. Equally a matter of chance at one level was the decision to locate this chapter within the discourse of ‘social inclusion’; it seemed that this was the part of the symposium into which my proposed argument would fit best. That circumstance too has come to seem to me to be a productive one; I have found it useful to cast the argument in terms of a certain conception of labour law’s concern with social inclusion. This does not require a very elaborate defining of the idea of social inclusion: it suffices for the purpose of my argument to suggest that social inclusion, in this context, represents the normative ideal of bringing all working people within the scope and application of each and all of labour law’s protections unless there is some concrete and proportionate reason for not doing so in any particular instance. From that starting point, we can begin to construct an idea of labour law’s edifice of social inclusion and to imagine it as constructed, like a classical temple, upon a number of pillars—​an anti-​discrimination pillar, a human rights pillar, and so forth. This chapter envisages and focuses upon two such pillars: one of them is concerned with labour law’s apparatus for structuring and determining the work relations which come within its scope (the ‘relational structure pillar’). The other is concerned with the regulation of admission of immigrants who wish to work in a particular nation-​state (the ‘labour migration pillar’).

*  In writing this chapter, I have been greatly assisted by the opportunities which I have had to discuss its main themes with Professors Alan Bogg, Hugh Collins, and Cathryn Costello. Philosophical Foundations of Labour Law. First Edition. Edited by Hugh Collins, Gillian Lester, and Virginia Mantouvalou. Chapter 18 © Mark Freedland 2018. Published 2018 by Oxford University Press.

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The idea of evaluating the state of the philosophical foundations which underpin—​or fail to underpin—​those pillars of social inclusion provides a promising methodology for framing the arguments of this chapter. As I indicated earlier, the outcome of that evaluation has differed greatly from my initial prognostication of it. Normally one simply ignores such false starts and passes over them in silence, but on this occasion it is useful to explain how the argument has developed. My initial idea was to draw a radical contrast between the philosophical foundations of these two pillars of social inclusion. Although I regarded the relational scope pillar as misshapen—​by reason of its overdependence upon the contract of employment—​I thought that this could not be attributed to a weakness in its philosophical foundations, which I saw as strong and richly theorised ones. In stark contrast, I initially regarded the labour migration pillar as lacking any clear philosophical foundation; it seemed to me to be seriously under-​theorised in that sense. The picture I have since formed is a more complex and nuanced one in several crucial respects, and this change of view has significant implications for my understanding of the task of reinforcing these two pillars of social inclusion. In short, I now believe that both pillars do have recognisable philosophical foundations, but that in both areas there are deep conflictual cracks in these foundations which we should be concerned to expose and then to try to repair. The succeeding sections of this chapter make an attempt at that task. The next section examines the state of the foundations of the relational structure pillar, and the succeeding one looks similarly at the labour migration pillar. The concluding section looks for paths of amelioration, and tries to devise a set of common normative foundations for both pillars, invoking the notions of the isolated worker and the isolated state in order to do so.

2.  The Relational Structure Pillar and Its Philosophical Foundations Having invoked the notion of ‘the relational structure pillar’ of labour law’s edifice, with its own philosophical foundations, I now need to define that notion more fully before going on to examine those philosophical foundations. I spoke earlier of the relational structure pillar as being ‘concerned with labour law’s apparatus for determining and structuring the work relations which come within its scope’; we now need to expand upon that cryptic definition. The idea of the relational structure pillar of social inclusion is both an analytical and a normative one. At the analytical level, it comprises the body of law and doctrine which, on the one hand, specifies the categories of personal work relations or contracts which are regarded as falling under the remit of labour law and which, on the other hand, assigns particular shapes or structures to those legal forms.1 It can be said from the outset that the contract of employment is the central category which is so specified; but it has to be said in the same breath that the contract of employment is not the sole category which is so specified, since other forms of personal work relations and contracts are also to some extent regarded as falling under the same remit. In particular, there probably never was, but certainly now is not, a simple or complete binary division between, on the one hand, relations and contracts

1  This is the essential argument of my ch 2 ‘The Legal Structure of the Contract of Employment’ in Mark Freedland (ed), The Contract of Employment (OUP 2016); see in particular section 1  ‘A Theory of Structural Principles’ at 29–​39. A key example of the assignment of particular shapes and forms to particular types of personal work contract or relations consists in the doctrine that an obligation of mutual trust and confidence is attached as, whether as a term implied by law or as an essential attribute, to the contract of employment—​see further, Hugh Collins, ‘Implied Terms in the Contract of Employment’ in ibid, 478–​80.

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of employment regarded as coming within the remit of labour law and, on the other hand, relations or contracts for self-​employment regarded as falling outside the remit of labour law. By the same token, although labour law is elaborate in its shaping and structuring of the contract of employment, it is also to a significant extent engaged in the shaping and structuring of other personal work relations and contracts regarded as falling wholly or partially within its remit—​such as, in the context of UK labour law, those contracts which are regarded as being ‘workers’ contracts’2 without however being contracts of employment, so that they constitute a type of contract for self-​employment but under which the worker is not regarded as being in business on his or her own account.3 This might suffice if our concern was to define the notion of ‘relational structure’ as a purely analytical concept, capturing its dual nature as on the one hand classifying and on the other hand shaping the legally recognised forms of personal work relations. However, a more elaborate definition is required for the idea of relational structure as a pillar of labour law’s edifice of social inclusion. This notion is an essentially normative one: it is the idea of specifying and structuring those legally recognised forms of personal work relations so as to maximise labour law’s social inclusiveness. I suggest that it can be expressed as the dual goal of, on the one hand, recognising all the personal work relations or contracts which merit labour law’s worker-​protective regulation and, on the other hand, assigning shapes and structures to those relations or contracts which validate and uphold that worker-​protective regulation in a proportionate way. Formulated in that way, the goal of social inclusiveness provides the basis of a composite normative critique both of the substantive rules of labour law and of the taxonomy which determines the scope of application of those rules. It will not, of course, have escaped the reader’s attention that not just one but several normative elements have been introduced into this extended definition. Its focus is specially upon the worker-​protective aspects of labour law; it evokes the idea that some personal relations or contracts will deserve labour law’s worker-​protective regulation to a greater extent than others; and it requires the corresponding shaping and structuring of those relations or contracts to be proportionate to its worker-​protective purpose. It is these normative elements which invite an evaluation of the robustness of the relational structure pillar, and more particularly of the soundness of its philosophical foundations. Many of those who follow the development of the labour law of the UK have for some time been very concerned about the shakiness of the relational structure pillar; I suggest that the nature of those concerns has been shifting in recent years. For many of the recent decades, the main focus of anxiety has been upon labour law’s taxonomy of personal work relations or contracts and upon the questions of whether that taxonomy was both sufficiently comprehensive and sufficiently subdivided—​what should be the outer boundary of labour law’s application, and should there be a binary or a tripartite taxonomy of the relations and contracts falling within that boundary. I was myself very much preoccupied with the retrenchment upon the outer boundary which had been delineated by and for employment equality law as extending to all personal work contracts.4 As mentioned earlier, there 2  This is the category which has become known as that of the ‘Limb (b) worker’s contract’ from its appearance in s 230(3)(b) of the Employment Rights Act 1996 as part of the definition of the statutory concept of the ‘worker’. Limb (a) of that definition consists of the contract of employment itself. 3  This distinction is drawn most clearly by Lady Hale in Clyde & Co LLP v Bates van Winkelhof [2014] UKSC 32, [2014] ICR 730, [25]. 4  This is the category of ‘employment under a contract of employment or a contract personally to do work’ as currently embodied in s 83(2)(a) of the Equality Act 2010 which Professor Nicola Kountouris and I have argued was egregiously over-​narrowly interpreted in the decision of the Supreme Court in Jivraj v Hashwani [2011] UKSC 40, [2011] 1 WLR 1872—​see Mark Freedland and Nicola Kountouris, ‘Employment Equality and Personal Work Relations—​A Critique of Jivraj v Hashwani’ (2012) 41 Industrial Law Journal 56.

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has rightly been a widespread concern to vindicate the idea of the ‘worker’s’ contract as a distinctively more inclusive notion than that of the contract of employment itself.5 However, in the most recent times there has been a refocusing of these concerns upon the rapidly growing phenomenon of the ultra-​casual personal work relation known as the zero-​hours contract, and its capacity, in the terminology of this chapter, to shake the relational structure pillar to its very core.6 The idea of the ‘zero-​hours’ work arrangement or contract is that it is fully casual in the sense that the employer is not obligated to provide a fixed timetable of work or a fixed minimum number of remunerated hours of work and the worker is not obligated to accept them. It has for some considerable time been evident that such casual work arrangements or contracts have been liable to fall outside labour law’s categories of protection; in UK law this has been especially prone to happen by reason of the courts’ imposition of a special requirement of ‘continuing mutual obligation’ which they have attached to the recognition of contracts of employment,7 and apparently also, though to a lesser extent, to other ‘workers’ contracts’.8 I have myself sought to in earlier writings to draw attention to the gravity of this assault upon labour law’s taxonomy of personal work contracts: I have depicted it as one of the ‘paradoxes of precarity’ that employing enterprises may, by adopting ultra-​casual forms of work arrangement or work contract, both place their workers in precarious situations in which they are supremely vulnerable to the economic risks which those employing enterprises would otherwise have more equitably shared with them, and by the same means place them beyond the scope of those protections of labour law which they thereby more than ever need.9 Behind this lurking threat which the growth of zero-​hours contracts presents to labour law’s taxonomy of personal work contracts is an even deeper inroad into the relational structure pillar at the point at which labour law accords shape and structure to those contracts themselves. In the labour law of the UK, efforts have been made, and further such efforts have been promised, to exert some controls over the use and practice of zero-​hours contracts: but the imposition of these rather superficial controls actually serves, at a deeper level, to confirm the underlying legitimacy of such arrangements and to accept them into the received panoply of personal work contracts, indeed of contracts of employment strictly so called. Thus for example, the decision of the Supreme Court in the Autoclenz case10 is justly regarded as a landmark for judicial control of the spurious or ‘sham’ documentary presentation of dependent employment relationships as relations of self-​employment

5  See eg Nicola Kountouris, ‘The Concept of “Worker” in European Labour Law—​Fragmentation, Autonomy, and Scope’ (2018) 47 Industrial Law Journal 192. 6  For a general presentation of this set of issues, see Abi Adams, Mark Freedland, and Jeremias Prassl, ‘The “Zero-​Hours Contract”:  Regulating Casual Work, or Legitimating Precarity?’, Oxford Legal Studies Research Paper 11/​2015  accessed 14 December 2017. 7  This possibility became very evident in the decision of the Court of Appeal in O’Kelly v Trusthouse Forte plc [1983] ICR 728 (CA), and was fully realised in the decision of the House of Lords in Carmichael v National Power plc [1999] UKHL 47, [1999] ICR 1226: see Nicola Countouris, ‘Uses and Misuses of “Mutuality of Obligations” and the Autonomy of Labour Law’ in Alan Bogg, Cathryn Costello, ACL Davies, and Jeremias Prassl (eds), The Autonomy of Labour Law (Hart 2015) 169. 8 Compare Secretary of State for Justice v Windle and Arada [2016] EWCA Civ 459, [2016] ICR 721, and in particular [22]–​[26] (Underhill LJ). For powerful critiques, see Hitesh Dhorajiwala, ‘Secretary of State for Justice v Windle: The Expanding Frontiers of Mutuality of Obligation?’ (2017) 46 Industrial Law Journal 268; Jeremias Prassl, ‘Who is a Worker? (2017) 133 Law Quarterly Review 366. 9  See Mark Freedland, ‘The Contract of Employment and the Paradoxes of Precarity’, Oxford Legal Studies Research Paper 37/​2016  accessed 14 December 2017 (also published as Mark Freedland, ‘Le contrat du travail et les paradoxes de la précarité’ (2016) Revue de Droit du Travail 289, and as a podcast of a lecture given at the College de France on 9 March 2016  accessed 14 December 2017). 10  Autoclenz Ltd v Belcher [2011] UKSC 41, [2011] ICR 1157.

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falling outside both the ‘employee’ and the ‘worker’ categories. It tends to pass almost unnoticed that the claimants had been presented with and required to sign up to contractual documents which not only designated them as self-​employed but also placed them in a zero-​hours situation.11 Rather ironically, the decision that they were to be regarded as ‘employees’ for the purposes of the relevant employment legislation confirmed that this zero-​ hours arrangement could qualify as a fully-​fledged and valid contract of employment.12 One would not tax the Supreme Court, in arriving at that decision, of positive or purposeful endorsement of zero-​hours contracts of employment: however, more suspect in that regard was the policy of the government in 2015–​16 when it introduced legislation ostensibly to control the abusive deployment of zero-​hours contracts.13 The measures in question were directed at preventing the enforcement against workers of exclusivity clauses in such contracts; but this is rather superfluous or irrelevant to the tackling of what, I suggest, is the main mischief of zero-​hours contracting, and it would seem that the real effect, perhaps the concealed purpose, of this intervention was somewhat to sanitise the practice of zero-​hours contracting and thereby to permit, if not to promote, its positive development. The main mischief of zero-​hours contracting consists, I suggest, in its conferral of a continuingly unfettered discretion or managerial prerogative upon the employing enterprise to adjust and to vary the allocation to the worker of opportunities for remunerated hours of employment. Not only does this paradigmatically deprive the worker of any security of income, but it also hollows out, from within, any statutory protection of job security from which the worker may in theory benefit—​for instance, the various rights against unfair or discriminatory dismissal—​since the untrammelled freedom of the employing enterprise to control the flow of remunerated work largely empties any job security claim of its essential substance. This set of developments shakes our ‘relational structure pillar of social inclusion’ to its foundations, and indeed leads us to investigate the state of those foundations. It prompts the question of what underlying fissures in this part of labour law’s philosophical underpinnings have been opening up such large breaches in its worker-​protective apparatus. At one level, the philosophical foundations appear to be strong ones. Within the academe of labour law in the UK, much work has been done to establish and maintain them, especially with regard to the law and social and economic practice of the contract of employment. Otto Kahn-​Freund’s foundational proposition that ‘The main object of labour law has always been, and I venture to say always will be, to be a countervailing force to counteract the inequality of bargaining power which is inherent in the employment relationship’ is itself essentially targeted upon the contract of employment and designed to rebalance that contract.14 Some at least of the chapters in the present volume descend from or fall broadly within that tradition of philosophical writing about and around the contract of employment, especially that of Hugh Collins on the concept of subordination in work relations. In the currently popular genre of writing about civic republicanism and the theory

11  ibid [8]‌(Lord Clarke), reciting the provision that ‘You will not be obliged to provide your services on any particular occasion nor, in entering into such agreement, does Autoclenz undertake any obligation to engage your services on any particular occasion.’ 12  In 2017 the Court of Appeal took a somewhat similar decision in Pimlico Plumbers Ltd v Smith [2017] EWCA 51, [2017] ICR 657, but with the important difference that the claimants were held to be ‘workers’ rather than employees. 13 s 53  ‘Exclusivity terms unenforceable in zero hours contracts’ of the Small Business, Enterprise and Employment Act 2015, and the Exclusivity Terms in Zero Hours Contracts (Redress) Regulations 2015, SI 2015/​ 2021. 14  Otto Kahn-​Freund, Labour and the Law (2nd edn, Stevens 1977) 6, where it immediately follows upon a reiteration of his equally famous characterisation of the contract of employment as ‘that indispensable figment of the legal mind’ or legal imagination.

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of non-​domination, in 2017 Alan Bogg contributed a powerful article which is mainly concerned with that theory’s application to dependent employment relations in general and to the legal regulation of the contract of employment in particular.15 In that sense and to that extent, we could regard the philosophical foundations of our relational structure pillar as being both deeply grounded and well maintained. This is not to deny that the public and governmental policy of labour law in the UK has subjected those foundations to some significant shocks in recent decades, mainly in the shape of reverberations from de-regulatory discourses about ‘labour market flexibility’ or ‘flexicurity’ and ‘labour market competitiveness’. For some years, labour law scholars were engaged in trying to absorb and contain those particular shocks by suggesting ways of reconciling those discourses with the more traditional ones of labour law; this I think was the purpose, for example, of Hugh Collins’s article on ‘Regulating for Competitiveness’,16 of Paul Davies’s and my monograph, ‘Towards a Flexible Labour Market’,17 and of Sandra Fredman’s article on ‘Flexicurity’,18 as, in a larger sense, of Simon Deakin and Frank Wilkinson’s book on labour market regulation.19 However, I think that these writers saw themselves more as engaging with current political and economic policies than as proposing deep transformations in the underlying philosophy of labour law. Nevertheless, I fear that there are actually some cracks quite close to the core of these philosophical foundations, and I believe that the growing practice and legal toleration of zero-​hours labour contracting threatens to reveal and enlarge them. Alan Bogg’s article on civic republicanism and non-​domination theory elegantly exposes an incipient ‘Trojan horse’ in the version of that theory which is put forward by Frank Lovett, who is one of its principal protagonists;20 and he shows how that Trojan horse serves to secrete the commandos of deregulation into the citadel of civic republicanism precisely at the point where it ought in his view—​and in mine—​to be providing a bulwark against the encroachment of ultra-​casual work arrangements upon the law and practice of the contract of employment. Bogg deftly depicts the two crucial moves which Lovett makes in that direction: the first one consists of identifying the greatest danger of employer domination in employment relationships as being located in the practice of long-​term or ‘strategic’ contracts of employment, as opposed to those spot transactions in personal work—​the ‘parametric’ work contracts in Lovett’s terminology—​which are, of course, typified by the practice of zero-​hours contracting; the second such move consists in demarcating employment-​protection legislation directed to controlling that practice as a suspect form of public domination of the private sphere. Frank Lovett’s arguments in fact, and perhaps unconsciously, reach down into a certain seepage into labour law’s philosophical foundations which most of the theorists of labour law prefer to seal off because of the damage which it may inflict upon those foundations: this is the ideology of ‘Employment at Will’, of which the classic exposition is to be found in Richard Epstein’s famous article, ‘In Defense of the Contract at Will’. Most UK labour law theorists would regard Richard Epstein’s fervid insistence upon the efficiency of the instant 15  Alan Bogg, ‘Republican Non-​Domination and Labour Law: New Normativity or Trojan Horse?’ (2017) 33(3) International Journal of Comparative Labour Law and Industrial Relations 391. 16 Hugh Collins, ‘Regulating the Employment Relation for Competitiveness’ (2001) 30 Industrial Law Journal 17. 17  Paul Davies and Mark Freedland, Towards a Flexible Labour Market—​Labour Legislation and Regulation since the 1990s (OUP 2007). 18  Sandra Fredman, ‘Women at Work: The Broken Promise of Flexicurity’ (2004) 33 Industrial Law Journal 299. 19  Simon Deakin and Frank Wilkinson, The Law of the Labour Market—​Industrialization, Employment and Legal Evolution (OUP 2005). 20  See Frank Lovett, A General Theory of Domination and Justice (OUP 2010).

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terminability of the ‘contract at will’, as the best means of achieving the main regulatory goals of worker-​protective labour law, as over-​dogmatic to the point of perversity; and Alan Bogg succeeds in showing that both Frank Lovett, and indeed also Philip Pettit, are actually putting forward versions of civic republican non-​domination theory which have some redeeming caveats built into them—​for example, Frank Lovett believes that the worker’s crucially controlling capacity for exit from employment relations in which (s)he is unduly subject to the employer’s domination has itself to be sustained by social security provision of a safety net of basic income support. Nevertheless, thinkers such as Frank Lovett seem to be taking a certain philosophical road which does lead towards an extolling of ‘employment at will’; and I think it is right to see the tolerated growth of zero-​hours contracting in the UK as a practical turn down that same road. This has been a cursory discussion of a very large topic, because its purpose has been not so much to define or to complete any particular understanding of the ‘relational structure pillar of social inclusion’ as to pave the way for a comparison between the state of this quite intensely surveyed part of the architecture of labour law and that of another one, namely the ‘labour migration pillar of social inclusion’, of which the philosophical foundations seem to me to have been much less examined: the next section of this chapter sets about trying to pursue that comparison and thereby to repair that omission.

3.  The Labour Migration Pillar and Its Philosophical Foundations As I indicated in the Introduction to this chapter, my contemplation of the ‘labour migration pillar of social inclusion’ has produced results which are much more closely similar than I had initially expected to those of our examination of the ‘relational structure pillar’ in the previous section of this chapter, with the difference that in this case my sense is even stronger that this pillar is hollow and fragile and that its philosophical foundations are deeply cracked and unstable. Accordingly, I set a course for this section which is parallel to that of the previous section: I begin by seeking to define the normative idea embodied in my notion of a ‘labour migration pillar of social inclusion’: I continue by considering whether labour law’s edifice of social inclusion can be said to have anything resembling such a pillar, first in the dimension of existing law and public policy, and then in the dimension of theoretical doctrine; and I conclude, as in the previous section, by looking down into the philosophical foundations of this aspect of labour law and assessing the condition of those foundations. As in the previous section, the argument is made out in a way which is very specific to the labour law and the labour migration law of the UK and to its present state; in the next and concluding section of the chapter, I shall consider the more general applications or implications of these arguments. As is often the case, the first step in this argument is probably the most difficult one: I have postulated the notion of a ‘labour migration pillar of labour law’s edifice of social inclusion’, but the putting of flesh on the bare bones of that idea is no easy task, and I acknowledge that this whole enterprise might be regarded with scepticism. It is relatively straightforward to say that there is an important normative concern with maximising the social inclusiveness of labour law—​I have argued for that proposition in the previous section—​and once we have, entirely appropriately in my view, recognised that labour migration law should be regarded as an integral part of labour law, we can see that it follows that this normative concern extends to the law and public policy of labour migration: that much is plain sailing. But to fare further along that course of argument is to encounter a fundamental lack of agreement, which afflicts labour migration law systems in general, as to which labour

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migrants should be the subjects or beneficiaries of this social inclusion and as to the terms on which it should be extended to them. It is the underlying problem which I encountered, with Cathryn Costello, when we were writing the Introduction to the symposium volume Migrants at Work, and which we expressed as ‘the fundamental unresolved normative tension between the objectives of expanding employers’ access to migrant workers; protecting the employment prospects and conditions of local workers; and acknowledging the importance of migration for the life chances and even, in some instances, survival of migrants’.21 The upshot of the foregoing discussion is that we cannot aspire to identify a ‘labour migration pillar of social inclusion’ in the form of a normative proposition which could tell us precisely how those conflicting policy objectives might best be reconciled in any one particular nation-​state at any one particular moment in time. This realisation does not, however, entirely frustrate the aim of articulating any normative principles of social inclusion with regard to labour migration. We still can and still should envisage a notion of fairness towards labour migrants, and as between immigrants and citizens, both in the making and in the implementing of the laws and public policy of labour migration. This notion would have both substantive and procedural dimensions: on the substantive side, it would have regard to the rationality and proportionality of decision-​making and to the human rights and legitimate expectations both of immigrants and of citizens. On the procedural side, it would concern itself with the methodology of creating and maintaining both international comity, internal consistency, and the control of abusive or exploitative conduct on the part of both public and private employers, in the making and applying of labour migration law. This may sound like a wholesale importation of principles of public law into the sphere of labour migration law: if so, it would not be the first nor I predict the last time labour law has needed or will need to draw upon such ideas in order to develop its own normative principles.22 This does not in my view imply that labour migration law is simply a branch of public law; it merely identifies it as being, like labour law as a whole in my view, poised between public and private law23 and properly drawing on the ideas and thought-​patterns of both. At all events, I believe that this normative principle of fairness in labour migration law and policy, although both sketchy and experimental in character, does nevertheless identify what a ‘labour migration pillar of labour law’s edifice of social inclusion’ might in outline look like. It does at least provide the basis for a critique, which will now be attempted, both of the current state of labour migration law and policy in the UK, and moreover of the body of legal and normative theory which frames or should frame that current state of labour migration law, and which provides or should provide its philosophical foundations. To the initial question which is thus posed, as to whether the current state of labour migration law in the UK can be regarded as giving effect to our suggested normative notion of fairness in labour migration law, and as thus substantiating our ‘labour migration pillar of social inclusion’, the answer I fear has to be a resoundingly negative one. The point here is a rather contingent and circumstantial one: whereas such a claim could possibly have been made of the law and practice of the UK as it stood before the UK referendum of 2016 on 21  Cathryn Costello and Mark Freedland (eds), Migrants at Work—​Immigration and Vulnerability in Labour Law (OUP 2014) 24. 22  Compare Paul Davies and Mark Freedland, ‘The Impact of Public Law on Labour Law, 1972–​1997’ (1997) 26 Industrial Law Journal 311. 23  This location of labour migration law between public and private law is vividly instantiated by the discussion of the way that the law and doctrine of contractual illegality applies to determine the employment law status of illegal immigrants; see Alan Bogg and Sarah Green, ‘Rights Are Not Just for the Virtuous: What Hounga Means for the Illegality Defence in the Discrimination Torts’ (2015) 44 Industrial Law Journal 101; and more generally Alan Bogg, ‘Illegality, Public Policy, and the Contract of Employment’ in Mark Freedland (ed), The Contract of Employment (OUP 2016).

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its membership of the EU, there seems to me to be no doubt that the outcome of that referendum, and the development of labour migration policy which has ensued in consequence of that result, has served to make that claim unsustainable to the point where it would seem almost laughable to advance it. I advance this view on the basis of the fundamental uncertainty and unpredictability which has beset the labour migration law and policy of the UK since the Brexit referendum. Any other evaluation seems scarcely possible, since the central objectives of that policy became those of, first, withdrawing the UK from its adherence to the EU regime of freedom of movement of persons24 and, secondly, using that withdrawal to enable further reduction of annual net migration to the UK so that it would amount to no more than 100,000 persons per year.25 These linked proposals for withdrawing from the EU free movement of persons regime and for pushing further towards a net migration cap of 100,000 persons per year were surely plans for a system which was in its very nature arbitrary in its treatment of labour migrants and their families, especially those who had migrated to the UK under the existing regime but had not yet acquired the right to citizenship of the UK or permanent residence in the UK. The proposal for withdrawal from EU free movement of persons is wholly uncertain and unpredictable in its impact upon labour migrants in the sense that the detailed provisions of the regime which would replace the existing one have not been enacted or even published, and indeed are entirely dependent upon a set of negotiations with the EU the likely outcome of which is absolutely unclear. The linked proposal to bring the net migration figure down to 100,000 persons per year, of which the intention seemed to be to elevate that numerical cap from the status of a general policy objective to that of the overriding rule which would govern the whole labour migration regime, is in its nature arbitrary and capricious towards any particular labour migrants and their families, in view of the great number of shifting variables which determine the actual net migration figure in any given year or set of years. This arbitrariness in the substance of the projected labour migration regime for the UK also promises to bring about a correspondingly more oppressive and exclusionary implementation of labour migration rules and requirements. There is some indication that the current administrative regime of the Home Office is already undergoing a hardening towards labour migrants from elsewhere in the EU as it starts to anticipate the changes which are in prospect.26 It would be a travesty of the whole idea of a ‘labour migration pillar of social inclusion’ to regard this situation as capable of constituting such a pillar. All this having been said, it may have seemed strange and even counterintuitive to seek to base a whole argument about the ‘labour migration pillar of labour law’s edifice of social

24  ‘We will design our immigration system to ensure that we are able to control the numbers of people who come here from the EU. In future, therefore, the Free Movement Directive will no longer apply and the migration of EU nationals will be subject to UK law.’ Para 5.4 of ‘The United Kingdom’s exit from, and new partnership with, the European Union’, Department for Exiting the European Union, originally issued as White Paper Cm 9417 in February 2017 and updated and reissued as a Policy Paper in May 2017. 25  ‘[W]‌ith annual net migration standing at 273,000, immigration to Britain is still too high. It is our objective to reduce immigration to sustainable levels, by which we mean annual net migration in the tens of thousands, rather than the hundreds of thousands we have seen over the last two decades. We will, therefore, continue to bear down on immigration from outside the European Union. . . . Leaving the European Union means, for the first time in decades, that we will be able to control immigration from the European Union too. We will therefore establish an immigration policy that allows us to reduce and control the number of people who come to Britain from the European Union, while still allowing us to attract the skilled workers our economy needs.’ Forward, Together: Our Plan for a Stronger Britain and a Prosperous Future—​The Conservative and Unionist Party Election Manifesto 2017, 54. 26  See Colin Yeo, ‘New policies, processes and forms for EU nationals show hardening Home Office position’, Free Movement (10 February 2017)  accessed 21 June 2017.

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inclusion’ upon the state of the labour migration regime in one country, the UK, when that national regime is so evidently in a period of turbulence and flux for a very singular, contingent, and perhaps even ephemeral set of reasons. However, it is that very sense of fundamental disturbance which makes this particular national labour migration regime at this particular juncture such an interesting case study for this part of the present chapter. That is because we could scarcely hope to find a more telling national location in which to test under extreme stress the strength of the theoretical underpinnings of the emerging sub-​discipline of labour law which is the law of labour migration. The results of conducting that stress test in and from that national location are unexpectedly interesting in the conflicts which they reveal at the core of the philosophical foundations of labour migration law. The conducting of this stress test requires us to consider the state of the body of theoretical writings on labour migration law, but also, I suggest, requires us to go beyond those existing writings and to draw upon an allied but distinct literature which is concerned with the political philosophy of immigration control. That is for the following reason: I think the existing body of literature on labour migration law, although it has done quite a lot in recent years to create an understanding of the crucial place which labour migration law occupies both within and alongside the mainstream of labour law itself, has not hitherto had to address a perceived existential crisis for the system of labour migration law in any one country or region.27 Two symposium works which have been produced in recent years may be cited to illustrate the point: the symposium volume Migrants at Work was cast in a mould of analysing the ways in which migration and migration law introduce various divisions into labour law,28 while the symposium volume Temporary Labour Migration in the Global Era is framed around the regulatory challenges which are specially posed by temporary labour migration regimes;29 but it would seem fair to say that neither work is engaged in portraying labour migration law systems as being in states of fundamental upheaval. The contemplation of undeniably deep crises in the sphere of labour migration law—​ such as the one which is occurring in the UK—​requires us to move beyond this essentially legal literature into a discussion of questions about the deep ethical and philosophical justifications for labour migration controls. These are questions which themselves quickly turn out to have a constitutional or jurisdictional aspect to them which it becomes important to explore. It is useful to refer to two books which represent opposing positions in this zone of deep controversy; they vividly display this dual nature of the philosophical controversy as being in part ethical and in part constitutional. The works in question are those of Joseph Carens and David Miller on the ‘ethics’ or ‘political philosophy’ of immigration.30 The opposition between the two works can be simplified down to a clash between, on the one hand, Joseph Carens’s view that democratic values of freedom and equality ultimately entail a commitment to open borders, and, on the other hand, David Miller’s defence of the right of democratic states to control their borders and to decide upon the future size, shape, and cultural make-​up of their populations. Although these two works do represent basically 27  Though there has rightly been seen to be an intensifying crisis in the domain where migration law merges with refugee law in the European region—​see eg Cathryn Costello, The Human Rights of Migrants and Refugees in European Law (OUP 2015). 28  Cathryn Costello and Mark Freedland (eds), Migrants at Work—​Immigration and Vulnerability in Labour Law (OUP 2014)—​see in particular their introductory ch 1 ‘Migrants at Work and the Division of Labour Law’. 29  Joanna Howe and Rosemary Owens (eds), Temporary Labour Migration in the Global Era—​The Regulatory Challenges (Hart 2016); see especially their framing ch 1, which at page 1 concentrates attention on the ‘controversies [which] abound over temporary labour migration, either undertaken through programmes designed specifically for that purpose or as an adjunct to migration for non-​labour purposes’. 30  The two works are: Joseph Carens, The Ethics of Immigration (OUP 2013) and (the revealingly titled) David Miller, Strangers in Our Midst—​The Political Philosophy of Immigration (Harvard University Press 2016).

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divergent ethical or philosophical positions, their respective arguments are developed in ways which are partly convergent upon each other: Joseph Carens recognises that it is not at all realistic to expect that an ideal of open borders will ever entirely prevail over the claims of nation-​states to control their own borders,31 while David Miller for his part accepts that there have to be some ethical constraints, particularly with regard to the human rights of immigrants, upon the discretions of nation-​states in the exercise of border controls.32 However, despite these partial convergences, the remaining differences are very significant ones, and, as I  have begun to indicate, these differences can best be understood as being partly ethical, but partly also political and constitutional in character. The interplay between the ethical aspect and the political and constitutional aspect of each of these two positions is in each case a subtle and complex one which it is worth examining a little more fully since it in my view provides the key to understanding much of the debate about the philosophical foundations of labour migration law. Thus Joseph Carens’s arguments are asserted as primarily ethical ones, but they do have significant political and constitutional implications. His special concerns with the human rights and legitimate expectations of immigrants marks out his position as a universalist and politically cosmopolitan one, and at the constitutional level it seems to me to presuppose or require a considerable degree of supranational ordering to vindicate those concerns. David Miller, by contrast, although he is by no means oblivious to those moral and universal concerns, primarily focuses on the claims of democratic nation-​states to exercise autonomous and discretionary control of their borders in the interest of maintaining their own democracies. Although he views those claims as truly philosophical ones, he regards his theoretical construct as essentially existing in the realm of political philosophy,33 and I would incline to view his position as an underlying constitutional one of assertion of overriding nation-​state autonomy in the matter of control of labour migration. We might accordingly wish to understand and engage with the debate between Joseph Carens and David Miller as a primarily political and constitutional one, for all its assertion of its philosophical standing. We might feel that Joseph Carens’s argument is uncomfortably trapped between the domain of philosophical ideals and that of practical reality,34 and therefore somewhat jejune in political and constitutional terms. However, we might in my view have much more significant concerns about the political and constitutional dimensions of David Miller’s arguments. For all his demonstrated concern with the rights of immigrants,35 he does not hesitate to invoke the notion of ‘Strangers in our Midst’ as one which may appropriately form the title and provocative starting point for his discussion, nor to put forward quite a strong version of indigenous cultural values as the rationale for an integrationist approach to the maintenance of national democracy36 which ultimately 31  Carens (n 30) 10: ‘I take the existing international order as a given because that order is deeply entrenched and it is the context within which moral questions about immigration and citizenship first arise for us’. 32  Miller (n 30) 12: ‘The human rights perspective on immigration, like the economic perspective, makes an important contribution to our understanding, and in later chapters of this book I  will look in some detail at the human rights questions posed by refugee admissions, selective immigration policies, temporary migration schemes and so forth.’ 33  Compare eg his assertion that ‘[T]‌he most influential work of political philosophy written in the later twentieth century, John Rawls’s A Theory of Justice, avoids the issue of immigration altogether by assuming that the principles of justice it defends are to apply to a society whose membership is already fixed.’ Miller (n 30) 14. 34  Joseph Carens struggles hard to maintain the philosophical standing of his argument despite the fact that much of it is conducted at a pragmatical level: ‘I want to insist that the first ten chapters of the book are just as philosophical as the last ones. They are simply philosophy in a slightly different style. The dialectical approach that I take in these earlier chapters has a respectable philosophical pedigree that stretches back to Socrates. The fact that an argument is more radical or more controversial does not make it more philosophical.’ Carens (n 30) 12. 35  See Miller (n 30) ch 7 ‘The Rights of Immigrants’. 36  See Miller (n 30) ch 8 ‘Integrating Immigrants’.

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feeds back into his underlying advocacy of the right of nation-​states to control and if necessary close their borders. Three years before David Miller’s book was published, Bridget Anderson had published a monograph which very powerfully pointed out the ways in which such a rhetoric may infuse debates about immigration control and may become part of a wider political and constitutional practice of social exclusion of types of people who can be viewed in some sense as ‘failed citizens’.37 I believe that, whether or not I have correctly understood or represented David Miller’s position in the underlying philosophical debate, the threat of such a political and constitutional practice of social exclusion can be discerned in the public policy of the UK in general and in the domain of labour migration law in particular. This reflection leads on to a set of conclusions about the issues and problems which have been discussed in this and the preceding section, which are presented in the next and final section of this chapter.

4.  Conclusion—​The Isolated Worker in the Isolated State The previous two sections have revealed the extreme weakness, in the context within which our argument has been located, of two of the pillars of labour law’s edifice of social inclusion, and the deep cracks which are to be found in the philosophical foundations of those two pillars. Hitherto these two sets of problems, one in labour law’s relational structure and the other in the sphere of labour migration, have been considered separately from each other; the focus has been upon the comparisons and the contrasts between these two sets of problems rather than with what they have in common. In this concluding section, our enterprise becomes the rather different one of fusing the two discussions into a single one, hoping that by so doing we may improve our understanding of each of those discussions and also our chances of suggesting methods of repair to these shaky pillars and their cracked foundations. The plan for carrying out this enterprise is a threefold one: first, to depict our common set of problems under a single conceptual umbrella, that of ‘the isolated worker in the isolated state’, secondly, to consider how far the phenomenon of the isolated worker in the isolated state, as we have localised it in the previous two sections, is a contingent one or a universal one; and thirdly to try, from those starting points, to suggest ways of ameliorating the whole concatenation of problems thus identified—​in other words, of de-​isolating both the worker and the state in the domains of labour law within which this chapter is set. The first step, therefore, in this concluding argument, consists of identifying the sense in which our forgoing reflections upon two elements of labour law, namely its relational structure and its labour migration aspect, have turned out to coalesce into a set of problems common to both of them. It is essentially that our two supposed ‘pillars of labour law’s edifice of social inclusion’ have turned out to be so hollow and shaky, and their supposedly stable philosophical foundations have turned out to be so fissured with cracks, that we should probably regard these elements not as pillars of social inclusion at all, but instead as the mainstays of a very different and normatively negative structure of social exclusion rather than social inclusion; but I think we might arrive at a better understanding of it if we considered it, more elaborately, as the problem of ‘the isolated worker in the isolated state’. It is in that idea of a convergence upon a single notion of the isolated worker in the isolated state that we can discover a set of common concerns about the development of labour law in these two aspects, that of relational structure and that of labour migration. We could 37  Bridget Anderson, Us and Them?—​The Dangerous Politics of Immigration Control (OUP 2013).

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even think of this as a convergence upon these common concerns from initially opposite directions. Our concern in the area of labour law’s relational structure was with the way in which it can isolate workers in situations of extreme precarity and vulnerability—​an isolation which they are supposed to have ‘chosen’ for themselves by reason of an alleged preference for flexible and independent patterns of working. These choices and preferences often turn out to be ones into which the workers in question have been coerced by economic necessity in general and the need, still strongly concentrated upon women workers, to be able to combine work with the discharge of parenting and family-​caring responsibilities. My main point, however, is the following one: this isolation of workers, by the ‘paradoxes of precarity’ which labour law’s relational structure can produce, also brings with it, I suggest, a kind of isolation of the nation-​state in which such relational structures and such paradoxes of precarity are tolerated and encouraged. That is to say, the nation-​state in question tends to become increasingly wedded to its ‘on-​demand economy’ and its ‘zero-​hours contracts’, which come to be regarded as crucial to the prosperity of the national economy; and thus the nation-​state in question is liable to be drawn into a ‘race to the bottom’ competition with other nation-​states to reduce labour standards which leaves it increasingly isolated from other states of a more welfarist and strongly regulatory disposition. In the realm of labour migration law, on the other hand, we converge on the notion of ‘the isolated worker in the isolated state’ from the opposite direction. A nation-​state which pursues an exclusionary approach to labour migration and tends towards closing its borders to labour migrants is thereby tending to isolate itself and its people from other states and peoples: at the same time, however, it is also tending to isolate workers—​not only those excluded from immigrating, but also those existing labour migrants and their families who are thereby rendered less secure in their continuing presence within the nation-​state in question. It is this accumulation of exclusionary effects which constitute the potentially toxic combination of the isolated worker in the isolated state. The next stage of this argument consists of deciding how far and in what sense this construct, which we are arriving at, of ‘the isolated worker in the isolated state’ is a localised and contingent one; the stage of asking, in other words, how far this characterisation is, on the one hand, specific to a certain nation-​state or set of nation-​states at a certain moment in time, and how far it is, on the other hand, erected on theoretical foundations which are themselves specific to certain nationally-​based philosophical traditions with regard to labour law. Both those sets of questions are very hard to answer, but the questions seem nevertheless to be ones which are very pertinent to the arguments which have been advanced in this chapter. So far as those arguments have related to labour law’s actual regulation and practice, it has been focused upon the UK; and the whole construct of ‘the isolated worker in the isolated state’ is, I will admit, in large measure arrived at by reflecting upon the current situation of the UK as a standard-​bearer both for the ‘gig economy’ and the ‘zero-​hours contract’ and for the exclusionary approach to labour migration which has in large measure motivated its decision to leave the EU. There has been an unspoken question running through the narrative of this chapter as to whether the same construct also serves to characterise the regulation and policy of employment relations and labour migration in the US under the presidency of Donald Trump, who seems to be steering that country in the same direction; it is very tempting to locate the whole idea of ‘the isolated worker in the isolated state’ in the UK and the US of this present moment. It is very important not to overstate this argument, but once it has been uttered it is hard not to find it fairly convincing. Somewhat in the same vein, we might also wish to regard the foregoing discussion of the philosophical foundations of the two aspects of labour law upon which we have focused as itself being a rather specifically Anglo-​American one, even as possibly representing a certain

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Anglo-​American tradition in ways of thinking about these aspects of labour law, albeit a contested or conflicted tradition. In these respects, choosing and treading the path between practices and theories of labour law which are, on the one hand, contingent and ephemeral and, on the other hand, consistent and enduring is a profoundly difficult matter requiring a keen and continuing sensitivity to the evolution of politics and of political philosophies. Retaining a due caution about the danger of over-​generalising from the circumstances of any given time and place, we can nevertheless regard ourselves as having identified a particular set of ‘isolated worker in isolated state’ phenomena to which particular kinds of remedial response might be regarded as specially appropriate. The final stage of our argument therefore consists of beginning to look for methods of repair to this grave condition which we have identified in two of the pillars of labour law’s edifice of social inclusion and in their philosophical foundations—​the condition which I have described as that of the isolated worker in the isolated state. I do not claim to have found any magical kind of mortar with which to bind up this structure, but we can perhaps draw on some of the particular features of the construct of ‘the isolated worker in the isolated state’ in order to begin to mix this cement. There are two such features upon which it might be profitable to concentrate. The first of those is that we have identified the idea of the isolated worker in the isolated state as a composite notion; the isolation of the worker and the isolation of the nation-​state are essentially linked with each other. The second such feature is that we have localised the phenomenon of the isolated worker in the isolated state as a condition especially observable in the practices and even to some extent in the philosophical theories of labour law which seem to prevail at the present juncture in the Anglo-​ American sphere. It is worth taking a moment to consider in turn the ways in which those two features point us down pathways of amelioration or improvement. I look first at the interdependence between the isolation of the worker and the isolation of the nation-​state. This is the idea which I have put forward that workers become more isolated as the nation-​state becomes more isolated and vice versa. This suggests the need for mechanisms or processes which will de-​isolate or reintegrate both the isolated worker and the isolated state. So the search is for new or renewed bases of solidarity, collective deliberation, and collective action both between workers and between nation-​states. Here I suggest that we need to introduce another element into our basic idea of the isolated worker in the isolated state: this mutual isolation of the worker and the state also often brings with it an isolation of employers too; the many employing enterprises which sustain each national labour economy may find themselves caught between and damaged or inhibited by the isolation of the workforce on the one hand and the nation-​state on the other. A long historical view might suggest that these complexes of isolation have needed to be resolved, so far as they ever can be, by the creation and evolution of mechanisms which are ultimately tripartite as between nation-​states and organisations representing workers on the one hand and employers on the other. In order to pursue this line of thought, it may be useful to think further about the second feature of the analysis, namely the way in which we have localised our instantiation of the idea of the isolated worker in the isolated state upon the condition of labour law in the UK and the US at the present moment in time. This form of extrapolation from a state of affairs at a particular moment in a particular place is an essentially risky one, but it is also a potentially fruitful one, because it reminds us of earlier moments at which a creation or renewal of mechanisms of international and tripartite solidarity in the governance of labour and employment relations has been engendered in the aftermath of crises of an international order of magnitude; we could regard the founding of the ILO in 1919 and its rebirth from 1944 onwards in those terms. At both those times, a certain body of

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enlightened Anglo-​American practice and philosophy contributed to those developments. Ironically, it is a specially unenlightened body of contemporary political practice in the UK and the US which seems to bring about a present isolation of those states and of the workers who relate to them. This chapter has sought to point out the need for processes of re-​integration which may counter these manifestations of isolation. Perhaps one of the paths towards such reintegration is to be found in the recombining of elements of enlightenment which have in the past manifested themselves in thinking about labour law and labour migration both in this Anglo-​sphere and in continental European traditions. This was in a real sense the mission of those labour law scholars who were developing the study and theory of labour law in the post-​Second World War period of the twentieth century, and it may now be time for a new generation to revert to the sources of inspiration which they sought to provide. Among current labour law scholars, there is no shortage of enthusiasm to develop such a project of renewal and repair of the philosophical foundations of labour law’s edifice of social inclusion, and in particular to do so by a recombination of Anglo-​American philosophical traditions with continental European ones: prominent examples are to be found in Alain Supiot’s work on ‘The Spirit of Philadelphia’38 and Ruth Dukes’s project of work on the idea of a labour constitution.39 This was in my view the underlying and unifying purpose of the symposium work on ‘Resocialising Europe’ which was published in 2013.40 Perhaps the same might be said of the present volume, though it is not for me to presume to speak for others in that respect. At all events, it can certainly be asserted that the need for such a kind of intellectual reconstruction is a very great and pressing one for the international community of labour scholarship, and for the reasons which I have given that need is especially urgent in the face of the various kinds of isolation and isolationism which have been the subjects of this chapter.

38  Alain Supiot, The Spirit of Philadelphia—​Social Justice vs. the Total Market (Verso 2012), originally published as L’Esprit de Philadelphie—​La justice sociale face au marché total (Seuil 2010). 39  Of which the main and very significant product to date has been Ruth Dukes, The Labour Constitution: The Enduring Idea of Labour Law (OUP 2016). 40  Nicola Countouris and Mark Freedland (eds), Resocialising Europe in a Time of Crisis (CUP 2013).

37

Index abstraction of capital exploitation, risk theory, 217–​18 access to work dignity at work, 70 alienation dignity at work, 80–​4 Anderson, Elizabeth capabilities, 152 inequality,  61-​62 interpersonal justice, 144-​145 workplaces as dictatorships, 49 anti-​discrimination  law bilateralism in, 159–​61 distributive justice and, 146–​7 volunteer work, 320–​1 see also discrimination Arneson, Richard, 149, 195 association, freedom of right to strike, 235–​8 volunteer work, 320–​1 authority at work,  43–​5 submission or subordination, 54–​5 autonomy employment contracts and, 47, 49–​50, 54, 59 human right to, 132–​6 increasing autonomy, 79 liberal values, 21 reduction of personal autonomy, 61–​2 women and, 281 bargaining power, inequality of civic republican political theory, 106 employment, 158-​159, 169, 171, 174 exploitation, risk theory, 209–​11 markets, 156 basic labour rights dignity at work, 69–​79, 79–​80 Blackett, Adele, 171, 173, 301 bridge principle dignity at work, 75–​6 capabilities, human freedom and basic capabilities, 92 combined capabilities, 92–​3 internal capabilities, 92–​3 capital abstraction exploitation, risk theory, 217–​18 capitalism exploitation and, 183 paid/​unpaid labour divide, 274–​6 capitalist exploitation risk theory, 214–​23 care workers exploitation,  202–​3 caregivers paid/​unpaid labour divide, 276, 284–​5 Carens, Joseph  331-​32 civic duty volunteer work, 309–​10 civic republican political theory descriptive accuracy of non-​domination theory,  116–​18

domination theory advantages of Pettit’s over Lovett’s approaches,  114–​16 civil republicanism and freedom, 110–​11 Lovett, Frank, 111–​13, 327 Pettit, Philip, 110–​11 similarities and divergences between Pettit’s and Lovett’s theories, 113–​14 social justice as non-​domination, 111 inequality of bargaining power, 106 law of the labour market, 107–​8 normative programme for labour laws, 118–​21 orthodox rationales for labour law intervention,  105–​9 reflective equilibrium, 119 social justice, 106–​7 zero-​hours contracts,  119–​20 civil liberties contracts of employment and, 57–​9 class exploitation correspondence principle, 208 coercion dignity at work, 82–​3 Marx, 194-​195 property, 196 strike, 238 Cohen, G.A. distributive justice, 19, 149 exploitation as misappropriation of value, 206–​7,  209 Cohen, Joshua, 259 collective bargaining balancing inequality of bargaining power,  7–​8 contractualisation of labour law and, 33–​4 freedom to associate and, 235, 241–​3, 248–​50 process and opportunity for, 94–​5 see also right to strike, trade unions compulsory labour exploitation,  190–​3 condition-​dignity, 73, 74 conditions at work dignity at work, 70, 72 contestatory citizenship workplace democracy, 229–​51 contestatory expression, freedom of right to strike, 238–​9 contra-​solidaristic cooperation dignity at work, 83 contracts of employment autocratic nature of, 48–​51 liberal values and, 56–​63 civil liberties, 57–​9 equal respect, 61–​2 freedom from domination, 60 negative liberty, 57–​9 positive freedom, 59 republican theory of freedom, 60 public law/​private law divide, 63–​6 submission or subordination, 51–​6 authority,  54–​5 labour as instrument of employer, 53–​4 prerogative power, 56

38

338 Index contractualisation of labour law authority at work, 43–​5 contract performance, 37 contractual foundations, 33–​5 contractual norms, 36–​7 employment versus contracting, 38–​42 freedom at work, 46–​7 roles and relationships, obligations of, 37–​8 self-​realisation at work, 46–​7 social process, as, 35–​8 statutory rights, incorporation of, 34 voluntary obligations, 35–​6 corrosive disadvantage human freedom, 92 coverage, unfavourable, 280–​90, 296–​7,  301–​3 Crouch, Colin 254 decentring market, subordination after,  170–​3 democracy contestatory citizenship, 229–​51 human rights and, 136 oligarchic shift, 253–​6 right to strike, 229–​51 trade unions democratic character, 258–​60 international cooperation, 262 negative impact, 263–​4 political equality, 252–​68 dignity at work access to work, 70 basic labour rights, 69–​79 basis of, 74 bridge principle, 75–​6 circumstances of, 74 condition-​dignity, 73, 74 conditions at work, 70 contra-​solidaristic cooperation, 83 developing dignitarian account, 79–​86 alienation,  80–​4 basic labour rights, 79–​80 contra-​solidaristic cooperation, 83 direct force and coercion, 82–​3 domination,  80–​4 exploitation,  80–​4 indirect force and coercion, 83 maximal labour rights, 79–​80 neutrality,  85–​6 wrongful advantage taking, 82 dignitarian norms, 73–​9 direct force and coercion, 82–​3 features that make work valuable, 72 human dignity, 73–​9 human interests, 69–​73 indirect force and coercion, 83 needs of workers for conditions to be decent, 72 reasons work is valuable, 70–​2 schema of justification, 76 self-​determination and, 77 solidaristic empowerment, 69, 73–​9 status dignity, 73–​4 trade unions, 70, 72–​3 wrongful advantage taking, 82 direct force dignity at work, 82–​3 discrimination bilateralism in anti-​discrimination law, 159–​61

in labour law, 158–​9 rejection of fungibility among workers, and,  167–​9 distortion of market value, 159–​61 distributive function of labour law, 169–​70 individual injury in indirect discrimination,  166–​7 perpetrator perspective, 165–​70 individual injury in indirect discrimination,  166–​7 rejection of fungibility among workers, and,  167–​9 revisiting labour law’s distributive function,  169–​70 property distribution employment discrimination, 162–​5 labour law, 161–​2 subordination after decentring market, 170–​3 distribution discrimination,  169–​70 intra-​worker distribution,  153–​–​5 distributive justice desert-​based distribution,  143–​7 implications for intra-​worker distribution,  153–​–​5 redistribution to achieve equal distribution, 147–​51 to advance relational equality, 151–​3 division of labour exploitation, risk theory, 215–​16 domestic workers exploitation, 191, 198–​200 paid/​unpaid labour divide, 286, 290–​1, 296–​7,  301–​3 domination dignity at work, 80–​4 freedom from, 60 domination theory advantages of Pettit’s over Lovett’s approaches,  114–​16 civil republicanism and freedom, 110–​11 Lovett, Frank, 111–​13 non-​domination theory, descriptive accuracy of,  116–​18 Pettit, Philip, 110–​11 similarities and divergences between Pettit’s and Lovett’s theories, 113–​14 social justice as non-​domination, 111 Dworkin, Ronald interpretation, 16 luck egalitarianism, 146, 148–​9, 186 elite recruitment trade unions, 260–​1 employment continuing nature of, 40–​1 contracting distinguished, 38–​40 non-​contractual relationships in, 41–​2 equality contracts of employment and, 61–​2 political equality oligarchic shift, 253–​6 rethinking democracy, 253–​6 trade unions and, 256–​67 relational equality, redistribution to advance,  151–​3 see also inequality of bargaining power

39

Index European Convention on Human Rights, 190, 229 exit rights right to strike and, 232–​4 exploitation care workers, 202–​3 confronting,  183–​5 criminalisation of, 188–​9, 192 dignity at work, 80–​4 domestic workers, 191, 199–​200 forced and compulsory labour, 190–​3 immigration detention, work during, 200–​1 legal construction of structures, 188–​204 migrant workers, 198–​9 normativity of, 176–​9 opportunistic accounts of, 193 person, of, 179–​81 political philosophy, as, 193 practical and theoretical puzzles, 175–​6, 185–​7 prison work, 200–​1 risk theory abstraction of capital and increasing specificity of labour, 217–​18 advantageous utilisation of vulnerable, 211–​14 capitalist exploitation, 214–​23 division of labour and specialisation, 215–​16 exploitation of workers’ systematic risk aversion,  219–​20 hypothetical labour market with risk diversification for workers, 220–​3 misappropriation of objective value, 206–​9 prevention of risk unfairness, 223–​4 risk aversion and high stakes, 218–​19 transaction costs and full-​time employment, 216 unequal bargaining power, 209–​11 servitude, as, 190–​3 slavery, as, 190–​3 structural accounts of, 194–​5 structural vulnerability, 195–​8 vulnerability, 181–​3,  193–​4 zero-​hours contracts,  202–​3 fair compensation see risk theory of exploitation Faskens v McCormick human freedom, 99–​101 fertile functioning human freedom, 91–​2 forced labour exploitation,  190–​3 foundations of labour law see philosophical foundations of labour law Fraser, Nancy gender, 283, 285 scales of justice theory, 287–​304 freedom at work contracts of employment civil liberties, 57–​9 domination, 60 negative liberty, 57–​9 positive freedom, 59 republican theory of freedom, 60 contractualisation of labour law, 46–​7 freedom of association right to strike, 235–​8 volunteer work, 320–​1 freedom of contestatory expression right to strike, 238–​9

339

freedom to leave employment right to strike, 232–​4 fungibility among workers bilateralism and, 167–​9 gender and the paid/​unpaid labour divide caregivers,  284–​5 demise of gendered social arrangements, 284 domestic work, acknowledgement of, 286 exclusion of unpaid labour from labour law,  281–​3 marriage, effect of, 280 material origins of divergence, 273–​6 paternal power, 278 philosophical underpinnings, 276–​83 possessive individualism, 281 public/​private divide, 279 re-​convergence,  283–​6 self-​owned labour, 279 social contracts, 277–​8 status-​governed relationships,  279–​80 gift-​giving volunteer work, 311–​12 gig economy, 28, 44, 334 Goodin, Robert exploitation and vulnerability, 194, 211 Griffin, James human rights, 131-​134 Hsieh, Nien-​hê, 259 human development human freedom and, 91–​2 human dignity,  73–​9 see also dignity at work human freedom basic capabilities, 92 combined capabilities, 92–​3 corrosive disadvantage, 92 Faskens v McCormick,  99–​101 fertile functioning, 91–​2 human development approach, 91–​2 implications of, 101–​2 instrumental value, 95–​6 internal capabilities, 92–​3 intrinsic value, 95–​6 Lian v J-​Crew,  98–​101 measuring success, 97–​101 process and opportunity, 94–​5 removing unfreedoms, 96–​7 Robichaud v Canada, 88–​91, 97 Tim Hortons v Steel Workers, 89–​91, 97 worker-​centred approach, 90 human interests dignity at work, 69–​73 human rights dignity, 68-​70, 73-​74, 80 exploitation, 188-​196, 198, 203 foundations of labour law, as, 123–​6 naturalistic theories, 131–​7 political theories, 126–​31 humanitarianism volunteer work, 309–​10 humanity, unfavourable, 290, 299–​301, 304 immigration detention, work during exploitation,  200–​1

340

340 Index immunity from liability collective bargaining, 34 indirect derivation right to strike, 235–​6 indirect discrimination individual injury in, 166–​7 see also discrimination indirect force dignity at work, 83 inequality of bargaining power civic republican political theory, 106 exploitation, risk theory, 209–​11 infringement right to strike, 246–​7 International Labour Organisation or ILO labour rights, 130 prison labour, 200-​201 right to strike, 229 solidarity, 335 internships, unpaid,  318–​20 intervention in labour law orthodox rationales for, 105–​9 investments, control over trade unions, 262 isolated worker and isolated state social inclusion, philosophical foundations of,  333–​6 justification, schema of dignity at work, 76 Khan-​Freund,  Otto contractual foundation of labour law, 33–​5 inequality of bargaining power, 197, 271-​272 submission and subordination, 51, 66 labour migration pillar social inclusion, philosophical foundations of,  328–​33 Leader, Sheldon right to strike, 235–​6 Lian v J-​Crew human freedom, 98–​101 liberal values contracts of employment and, 56–​63 civil liberties, 57–​9 equal respect, 61–​2 freedom from domination, 60 negative liberty, 57–​9 positive freedom, 59 republican theory of freedom, 60 living wage, 11, 15, 177, 180, 250, 261 see also maximum wage, minimum wage Locke, John  278-​80 Lovett, Frank domination theory, 111–​16, 327 luck egalitarians distributive justice and, 144–​6, 147, 149–​50 MacNeil, Ian legal recognition of real world relationships, 41 MacPherson, CB, 281 market bargain bilateralism in labour law, 158–​9 market value, distortion of,  159–​61 marriage paid/​unpaid labour divide, 280

Marx, Karl exploitation and, 24, 83, 175–​9, 181–​5, 189–​90, 194–​6, 206–​7, 209, 212, 214–​17 maximal labour rights dignity at work, 79–​80 maximum wage, 150, 153, 155 see also living wage, minimum wage migrant workers exploitation, 178, 198–​9 social inclusion, 329-​334 Mill, John Stuart perfect obligations, 38 Miller, David immigration, 331-​332 unjust distribution, 146–​7 Mills, Charles racial exploitation, 181-​182 minimum wage care workers, 202–​3 dehumanisation, combating, 304 dependency of workers and, 120–​1 distributive justice and, 141, 150 domestic workers, 199–​200 exploitation and, 179, 180, 198 immigration detainees, 201 migrant workers, 198 prisoners, 201 sex workers, 300–​1 social justice, 289–​90, 296–​7 volunteer work, 318–​20 see also living wage, maximum wage naturalistic theories human rights, 131–​7 negative liberty contracts of employment and, 57–​9 neutrality dignity at work, 85–​6 non-​domination  theory descriptive accuracy of, 116–​18 social justice as non-​domination, 111 see also domination theory Nussbaum, Martha C. human development, 87, 91–​3, 99–​100 objectification, 301 objective value, misappropriation of exploitation, risk theory, 206–​9 oligarchies political equality and trade unions,  253–​6 outsourcing, 100, 216 paid/​unpaid labour divide caregivers,  284–​5 demise of gendered social arrangements, 284 domestic work, acknowledgement of, 286 exclusion of unpaid labour from labour law,  281–​3 marriage, effect of, 280 material origins of divergence, 273–​6 paternal power, 278 philosophical underpinnings, 276–​83 possessive individualism, 281 public/​private divide, 279 re-​convergence,  283–​6 self-​owned labour, 279

341

Index social contracts, 277–​8 status-​governed relationships,  279–​80 Pateman, Carol, 259, 282 paternal power paid/​unpaid labour divide, 278 perpetrator perspective generally,  165–​6 individual injury in indirect discrimination,  166–​7 rejection of fungibility among workers, and,  167–​9 revisiting labour law’s distributive function,  169–​70 Pettit, Philip domination theory, 110–​11, 113–​16, 231-​232, 236-​237,  245 strikes,  239-​40 philosophical foundations of labour law case for examining, 2–​12 concepts in, 11–​14 existence of labour law, 3–​6 general theories, 20 human rights as, 123–​6 justice theories, 12–​14 paradigms of labour law, 7–​11 political theories exegesis of principles of, 18–​20 methodological limitation, 14–​16 reapplication of key concepts, 16–​18 reinforcing isolated worker in isolated state, 333–​6 labour migration pillar, 328–​33 relational structure pillar, 323–​8 Pigou, AC, 210 political equality oligarchic shift, 253–​6 rethinking democracy, 253–​6 trade unions and control over investment, 262 democracy and, 263–​4 democratic character, 258–​60 elite recruitment, 260–​1 international cooperation, 262 political information, 258 political participation, 256–​8 political voice, 261–​2 promotive stance towards, 264–​7 political philosophy exploitation as, 193 political theories exegesis of principles of, 18–​20 human rights, 126–​31 methodological limitation, 14–​16 reapplication of key concepts, 16–​18 positive freedom contracts of employment and, 59 possessive individualism paid/​unpaid labour divide, 281 precarious work civic republican theory and, 119–​20 dignity at work and, 70, 83 distributive justice and, 151, 153, 154 gender and, 283 scales of justice theory and, 289, 291–​2, 297–​9 social inclusion and, 29 prerogative power contracts of employment and, 56

341

prison work exploitation,  200–​1 property distribution employment discrimination, 162–​5 labour law, 161–​2 public/​private  divide contracts of employment and, 63–​6 paid/​unpaid labour divide and, 279 race discrimination,  161–​5 exploitation,  181–​2 Rawls, John human rights and labour law, 127–​8, 131 equality, 27 reflective equilibrium, 119 state neutrality, 266 theory of justice, 15-​20, 57-​58, 64 uneven distribution, 147–​8 work and social life, 310 Raz, Joseph human rights and labour law, 129–​31 recognition social inclusion and scales of justice, 293–​6 redistribution justification for, 141–​2 social inclusion and scales of justice, 293–​6 to achieve equal distribution, 147–​51 to advance relational equality, 151–​3 see also distributive justice reflective equilibrium, 119 relational equality, redistribution to advance,  151–​3 relational structure pillar social inclusion, philosophical foundations of,  323–​8 remuneration see wage law representation social inclusion and scales of justice, 293–​6 republican political theory see civic republican political theory republican theory of freedom, 60 respect contracts of employment and, 61–​2 right to strike basic liberties freedom of association, 235–​8 freedom of contestatory expression, 238–​9 freedom to leave employment, 232–​4 generally,  230–​2 objections to basic liberties argument,  239–​41 derivative right, 230 exit rights, 232–​4 eyeball test, 231–​2, 237–​8, 240, 244–​5 fundamental right, 229 indirect derivation, 235–​6 infringement,  246–​7 limitations on, 249 persons having right, 241–​5 state action, 241 symmetry,  235–​6 waiver of, 247–​9 risk aversion exploitation of workers’ systematic risk aversion,  219–​20 high stakes and, 218–​19

342

342 Index risk theory of exploitation abstraction of capital and increasing specificity of labour, 217–​18 advantageous utilisation of vulnerable, 211–​14 capitalist exploitation, 214–​23 division of labour and specialisation, 215–​16 exploitation of workers’ systematic risk aversion,  219–​20 hypothetical labour market with risk diversification for workers, 220–​3 misappropriation of objective value, 206–​9 prevention of risk unfairness, 223–​4 risk aversion and high stakes, 218–​19 transaction costs and full-​time employment, 216 unequal bargaining power, 209–​11 Robichaud v Canada human freedom, 88–​91, 97 Robinson, Joan, 210 Roemer, John luck egalitarian, 149 class exploitation correspondence principle,  208–​9 Sample, Ruth, 193-​194 scales of justice theory integrated account of, 301–​5 recognition, redistribution and representation,  293–​6 social inclusion and, 287–​9, 291–​3 unfavourable inclusion unfavourable coverage, 280–​90, 296–​7, 301–​3 unfavourable humanity, 290, 299–​301, 304 unfavourable welfare, 290, 297–​9, 303–​4 schema of justification dignity at work, 76 self-​determination dignity at work, 77 self-​employment, right to, 233 self-​owned  labour paid/​unpaid labour divide, 279 self-​realisation,  46–​7 Sen, Amartya development as freedom, 87, 91, 94–​6, 99–​100 social inclusion, 289 social reproduction, 286 servitude exploitation as, 190–​3 sex trafficking exploitation and, 191–​2 slavery exploitation as, 190–​3 racial exploitation, 181-​182 Smith, Adam division of labour, 215 social inclusion gender and the paid/​unpaid work divide caregivers,  284–​5 demise of gendered social arrangements, 284 domestic work, acknowledgement of, 286 exclusion of unpaid labour from labour law,  281–​3 marriage, effect of, 280 material origins of divergence, 273–​6 paternal power, 278 philosophical underpinnings, 276–​83 possessive individualism, 281 public/​private divide, 279

re-​convergence,  283–​6 self-​owned labour, 279 social contracts, 277–​8 status-​governed relationships,  279–​80 reinforcing philosophical foundations of labour law isolated worker in isolated state, 333–​6 labour migration pillar, 328–​33 relational structure pillar, 323–​8 scales of justice theory, 287–​305 generally, 287–​9,  291–​3 integrated account of, 301–​5 recognition, redistribution and representation,  293–​6 unfavourable coverage, 280–​90, 296–​7, 301–​3 unfavourable humanity, 290, 299–​301, 304 unfavourable welfare, 290, 297–​9, 303–​4 volunteer work anti-​discrimination,  320–​1 civic duty, 309–​10 freedom of association, 320–​1 gift-​giving,  311–​12 humanitarianism,  309–​10 identity,  315–​17 inclusivity,  312–​17 meriting inclusion, 313–​15 minimum wage exclusions, 318–​20 opportunity,  315–​17 recognition,  315–​17 unpaid internships, 318–​20 social justice civic republican political theory and, 106–​7 philosophical foundations of labour law and,  12–​14 non-​domination, as, 111 scales of justice theory generally, 287–​9,  291–​3 integrated account of, 301–​5 recognition, redistribution and representation,  293–​6 unfavourable coverage, 280–​90, 296–​7,  301–​3 unfavourable humanity, 290, 299–​301, 304 unfavourable welfare, 290, 297–​9, 303–​4 solidaristic empowerment dignity at work, 69, 73–​9 specialisation exploitation, risk theory, 215–​16 specificity of labour exploitation, risk theory, 217–​18 statutory rights contractualisation of labour law and, 34 strikes see right to strike submission contracts of employment and, 51–​6 subordination after decentring market, 170–​3 contracts of employment and, 51–​6 success, measuring human freedom, 97–​101 Supiot, Alain, 304, 336 Supreme Court of Canada, 88, 236 symmetry right to strike and, 235–​6 Tasioulas, John human rights and labour law, 134–​7

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Index Taylor, Robert exit rights, 232–​4, 239 Thompson, EP, 274 Tim Hortons v Steel Workers human freedom, 89–​91, 97 trade unions dignity at work, 70, 72–​3 political equality and control over investment, 262 democracy and, 263–​4 democratic character, 258–​60 elite recruitment, 260–​1 international cooperation, 262 political information, 258 political participation, 256–​8 political voice, 261–​2 promotive stance towards defending,  266–​7 defining,  264–​6 reducing importance of, 34 see also right to strike transaction costs exploitation, risk theory, 216 Uber right to strike and, 244 social inclusion and, 290, 298–​9 unfavourable inclusion unfavourable coverage, 280–​90, 296–​7, 301–​3 unfavourable humanity, 290, 299–​301, 304 unfavourable welfare, 290, 297–​9, 303–​4 universal basic income, 233 unpaid internships,  318–​20 unpaid labour see paid/​unpaid labour divide Valdman, Mikhail exploitation and vulnerability, 213–​14 value of human freedom instrumental value, 95–​6 intrinsic value, 95–​6 value of volunteer work anti-​discrimination,  320–​1 freedom of association, 320–​1 minimum wage exclusions, 318–​20 unpaid internships, 318–​20 value of work dignity at work, 70–​2 voluntary obligations contractualisation of labour law and, 35–​6 volunteer work civic duty, 309–​10 gift-​giving,  311–​12 humanitarianism,  309–​10 implementing value of anti-​discrimination,  320–​1

343

freedom of association, 320–​1 minimum wage exclusions, 318–​20 unpaid internships, 318–​20 inclusivity generally,  312–​13 identity,  315–​17 meriting inclusion, 313–​15 opportunity,  315–​17 recognition,  315–​17 Vrousalis, Nicholas exploitation and vulnerability, 212–​13 vulnerability advantageous utilisation of vulnerable,  211–​14 exploitation and, 181–​3, 193–​8 wage law living wage, 11, 15, 177, 180, 250, 261 maximum wage, 150, 153, 155 minimum wage care workers, 202–​3 dehumanisation, combating, 304 dependency of workers and, 120–​1 distributive justice and, 141, 150 domestic workers, 199–​200 exploitation and, 179, 180, 198 immigration detainees, 201 migrant workers, 198 prisoners, 201 sex workers, 300–​1 social justice, 289–​90, 296–​7 volunteer work, 318–​20 waiver of right to strike,  247–​9 welfare, unfavourable, 290, 297–​9, 303–​4 Wendell-​Holmes,  Oliver contract performance, 37 Wertheimer, Alan exploitation in interpersonal relations, 193, 210 women see gender and the paid/​unpaid labour divide worker-​centred approach human freedom, 90 workplace democracy contestatory citizenship, 229–​51 right to strike, 229–​51 trade unions and political equality, 252–​68 Wright, Erik dignity at work, 78–​9 wrongful advantage taking dignity at work, 82 zero-​hours contracts civic republican political theory, 119–​20 exploitation of care workers, 202–​3

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