《社会保障概论》课程教学资源（课后阅读资料）APSR_Volume112. Issue 4.Nov 2018_The_Right_to_Strike_A_Radical_View

American Political Science Review (2018)112,4.905-917 doi:10.1017/S0003055418000321 American Political Science Association 2018 The Right to Strike:A Radical View ALEX GOUREVITCH Brown University orkers face a common dilemma when exercising their right to strike.For the worst-off workers to go on strike with some reasonable chance of success,they must use coercive strike tactics like mass pickets and sit-downs.These tactics violate some basic liberties,such as contract,associa- tion,and private property,and the laws that protect those liberties.Which has priority,the right to strike or the basic liberties strikers might violate?The answer depends on why the right to strike is justified.In contrast to liberal and social democratic arguments,on the radical view defended here,the right to strike is a right to resist oppression.This oppression is partly a product of the legal protection of basic economic liberties,which explains why the right to strike has priority over these liberties.The radical view thus best explains why workers may use some coercive,even lawbreaking,strike tactics. very liberal democracy recognizes that workers literature on neighboring forms of protest like non- have a right to strike.That right is protected violence,civil disobedience,conscientious refusal,and in law.sometimes in the constitution itself.Yet social movements. strikes pose serious problems for liberal societies.They The right to strike raises far more issues than a single involve violence and coercion,they often violate some essay can handle.In what follows,I address a particu- basic liberal liberties,they appear to involve group larly significant problem regarding the right to strike rights having priority over individual ones,and they and its relation to coercive strike tactics.I argue that can threaten public order itself.Strikes are also one of strikes present a dilemma for liberal societies because the most common forms of disruptive collective protest for most workers to have a reasonable chance of suc- 4号 in modern history.Even given the dramatic decline in cess they need to use some coercive strike tactics.But strike activity since its peak in the 1970s,they can play these coercive strike tactics both violate the law and significant roles in our lives.For instance,just over the infringe upon what are widely held to be basic liberal past few years in the United States,large illegal strikes rights.To resolve this dilemma,we have to know why by teachers paralyzed major school districts in Chicago workers have the right to strike in the first place.I argue and Seattle,as well as statewide in West Virginia,Ok- that the best way of understanding the right to strike is lahoma,Arizona.and Colorado:a strike by taxi drivers as a right to resist the oppression that workers face in played a major role in debates and court decisions re- the standard liberal capitalist economy.This way of un- garding immigration;and strikes by retail and food- derstanding the right explains why the use of coercive service workers were instrumental in getting new min- strike tactics is not morally constrained by the require- imum wage and other legislation passed in states like ment to respect the basic liberties nor the related laws California,New York,and North Carolina.Yet,despite that strikers violate when using certain coercive tactics their significance,there is almost no political philoso- The argument proceeds in three sections.The first phy written about strikes.This despite the enormous lays out the dilemma.The second describes the oppres- sion that workers face.The third then argues for seeing Alex Gourevitch is an Assistant Professor of Political Sci- the right to strike as a right to resist oppression and ence,Brown University,36 Prospect St.,Providence,RI,02912 compares it with liberal and social democratic versions (Alexander_gourevitch@brown.edu). of the right to strike. I would like to thank the following people for very helpful indi vidual conversations about this essay:Samuel Arnold,Joshua Braver. Candice Delmas,Leah Downey,David Estlund,Nicholas Frayn,Har- THE DILEMMA rison Frye,Andreas Kalyvas,Karl Klare,Jeffrey Lenowitz,Frank Lovett,Chris Muller,Suresh Naidu,Jeppe von Platz,Peter Ram- Here are some general facts about strikes and labor say,Corey Robin,Julie Rose,Lucas Stanczyk,and Carla Yumatle. markets that present liberal societies with a dilemma.A I am also grateful to political theory workshop participants at the following colleges and universities:University of Virginia,Prince- strike is a work stoppage to achieve some end.Higher ton University,MIT,Brown,New School,University of Chicago skilled,low-supply workers,who usually enjoy better (Human Rights Workshop),Stanford,Tufts,Dartmouth(Workshop wages,hours and conditions,can carry off a reasonably on Economic Justice),Washington University,Columbia University effective strike with little coercion and no significant (September Group),University of Pennsylvania,McGill University lawbreaking.That is because they are hard to replace. (Left Political Theory).I would also like to thank the Radcliffe In- stitute for Advanced Study for generously supporting a year of leave So long as they exercise adequate discipline,workers during which I was able to write and revise this article will have a reasonable chance of succeeding if they refuse to work.Production slows or stops altogether. Received:August 18,2017;revised:March 9,2018;accepted:May 18, 2018.First published online:June 21,2018. For instance,during the Verizon strike of 2016,Verizon I There is asmattering of essays or book chapters from the 1970s and 80s,almost none of which talk to each other,by Michael Walzer,Don There are a number of reasonable empirical assumptions built into Locke,Brian Smart,and Sheldon Leader,as well as an excellent book this statement.For the moment,I am characterizing a broad differ- by L.J.Macfarlane.To my knowledge,there are only two more recent ence in what it takes to carry off a strike with a reasonable chance articles that engage strikes in a sustained way (Gourevitch 2016c, of success.Therefore,I make generalizations that are reasonable but Borman 2017). that might not hold in particular cases. 905

American Political Science Review (2018) 112, 4, 905–917 doi:10.1017/S0003055418000321 © American Political Science Association 2018 The Right to Strike: A Radical View ALEX GOUREVITCH Brown University Workers face a common dilemma when exercising their right to strike. For the worst-off workers to go on strike with some reasonable chance of success, they must use coercive strike tactics like mass pickets and sit-downs. These tactics violate some basic liberties, such as contract, associa￾tion, and private property, and the laws that protect those liberties. Which has priority, the right to strike or the basic liberties strikers might violate? The answer depends on why the right to strike is justified. In contrast to liberal and social democratic arguments, on the radical view defended here, the right to strike is a right to resist oppression. This oppression is partly a product of the legal protection of basic economic liberties, which explains why the right to strike has priority over these liberties. The radical view thus best explains why workers may use some coercive, even lawbreaking, strike tactics. Every liberal democracy recognizes that workers have a right to strike. That right is protected in law, sometimes in the constitution itself. Yet strikes pose serious problems for liberal societies. They involve violence and coercion, they often violate some basic liberal liberties, they appear to involve group rights having priority over individual ones, and they can threaten public order itself. Strikes are also one of the most common forms of disruptive collective protest in modern history. Even given the dramatic decline in strike activity since its peak in the 1970s, they can play significant roles in our lives. For instance, just over the past few years in the United States, large illegal strikes by teachers paralyzed major school districts in Chicago and Seattle, as well as statewide in West Virginia, Ok￾lahoma, Arizona, and Colorado; a strike by taxi drivers played a major role in debates and court decisions re￾garding immigration; and strikes by retail and food￾service workers were instrumental in getting new min￾imum wage and other legislation passed in states like California, New York, and North Carolina. Yet, despite their significance, there is almost no political philoso￾phy written about strikes.1 This despite the enormous Alex Gourevitch is an Assistant Professor of Political Sci￾ence, Brown University, 36 Prospect St., Providence, RI, 02912 (Alexander_gourevitch@brown.edu). I would like to thank the following people for very helpful indi￾vidual conversations about this essay: Samuel Arnold, Joshua Braver, Candice Delmas, Leah Downey,David Estlund, Nicholas Frayn,Har￾rison Frye, Andreas Kalyvas, Karl Klare, Jeffrey Lenowitz, Frank Lovett, Chris Muller, Suresh Naidu, Jeppe von Platz, Peter Ram￾say, Corey Robin, Julie Rose, Lucas Stanczyk, and Carla Yumatle. I am also grateful to political theory workshop participants at the following colleges and universities: University of Virginia, Prince￾ton University, MIT, Brown, New School, University of Chicago (Human Rights Workshop), Stanford, Tufts, Dartmouth (Workshop on Economic Justice), Washington University, Columbia University (September Group), University of Pennsylvania, McGill University (Left Political Theory). I would also like to thank the Radcliffe In￾stitute for Advanced Study for generously supporting a year of leave during which I was able to write and revise this article. Received: August 18, 2017; revised: March 9, 2018; accepted: May 18, 2018. First published online: June 21, 2018. 1 There is a smattering of essays or book chapters from the 1970s and ’80s, almost none of which talk to each other, by Michael Walzer,Don Locke, Brian Smart, and Sheldon Leader, as well as an excellent book by L.J.Macfarlane. To my knowledge, there are only two more recent articles that engage strikes in a sustained way (Gourevitch 2016c, Borman 2017). literature on neighboring forms of protest like non￾violence, civil disobedience, conscientious refusal, and social movements. The right to strike raises far more issues than a single essay can handle. In what follows, I address a particu￾larly significant problem regarding the right to strike and its relation to coercive strike tactics. I argue that strikes present a dilemma for liberal societies because for most workers to have a reasonable chance of suc￾cess they need to use some coercive strike tactics. But these coercive strike tactics both violate the law and infringe upon what are widely held to be basic liberal rights. To resolve this dilemma, we have to know why workers have the right to strike in the first place. I argue that the best way of understanding the right to strike is as a right to resist the oppression that workers face in the standard liberal capitalist economy. This way of un￾derstanding the right explains why the use of coercive strike tactics is not morally constrained by the require￾ment to respect the basic liberties nor the related laws that strikers violate when using certain coercive tactics. The argument proceeds in three sections. The first lays out the dilemma. The second describes the oppres￾sion that workers face. The third then argues for seeing the right to strike as a right to resist oppression and compares it with liberal and social democratic versions of the right to strike. THE DILEMMA Here are some general facts about strikes and labor markets that present liberal societies with a dilemma.A strike is a work stoppage to achieve some end. Higher skilled, low-supply workers, who usually enjoy better wages, hours and conditions, can carry off a reasonably effective strike with little coercion and no significant lawbreaking.2 That is because they are hard to replace. So long as they exercise adequate discipline, workers will have a reasonable chance of succeeding if they refuse to work. Production slows or stops altogether. For instance, during the Verizon strike of 2016, Verizon 2 There are a number of reasonable empirical assumptions built into this statement. For the moment, I am characterizing a broad differ￾ence in what it takes to carry off a strike with a reasonable chance of success. Therefore, I make generalizations that are reasonable but that might not hold in particular cases. 905 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

Alex Gourevitch used many replacement workers,as it was their legal on strike with some reasonable chance of success they right to do,but those replacements could not do the job have to use one of these coercive tactics.6 effectively.Installing,servicing,and repairing copper- But what is the actual dilemma?It is the following.A -00081v0000/L0LoL wire and FIOS systems turned out to require weeks of basic principle of political morality in any liberal capi- training and further on-the-job experience.After seven talist society is that all persons enjoy basic liberties on weeks,the company still was unable to service existing the condition that they extend the same basic liberties lines,let alone install new ones.Exercising a great deal to everyone else and that these liberties should be en- of discipline and commitment,but no coercion or vi- shrined in law.You are free to exercise your basic lib- olence against replacements or managers,the Verizon erties so long as you do not coercively interfere with workers slowed production enough to win concessions others in the enjoyment of their same liberties.But the op//s (Gourevitch 2016b). aforementioned coercive strike tactics violate a num- However,low-skill,high labor supply workers in sec- ber of these basic liberties as they are commonly un- tors like service,transportation,agriculture,and basic derstood,both in law and political culture.They vio- industry are in a different situation.These kinds of late the property rights of owners and their managers workers,in part because they are in such high supply, the freedom of contract and association of replacement tend to have less bargaining power and therefore usu- workers,and they threaten the everyday.background ally enjoy lower wages,longer hours,and worse work- sense of public order of a liberal capitalist societ-in- ing conditions.3 On top of which,they are more vul- sofar as law and order is commonly identified with obe- nerable to forms of illegal pressure.For instance,con- dience to the law and uninterrupted flow of commerce. 元 sider the problem of wage theft,where employers fail The dilemma is that the right to strike,when exercised to pay the full wages and benefits that workers are by the majority of worst-off workers,seems to con- legally due.Wage theft is almost exclusively a problem flict directly with the basic economic and civil liberties affecting low-wage workers,64%of whom experience of large numbers of other people and with the back- it weekly and who on average lose 15%of their income ground legal order that secures those liberties. each year to their employers (Judson and Francisco- To resolve this dilemma,we need to know what has McGuire 2012).These workers already earn incomes moral priority:the basic economic and civil liberties not far from the poverty line.They are therefore the as they are enforced in law,or the right to strike.If ones we intuitively think should have the strongest the former,then the right to strike must be limited by case for a right to strike.Yet,even if all of the cur- the requirement to respect the legally protected basic rent workers walk off and respect the picket,replace liberties of owners,managers,and replacements.That ments are much easier to find,train,and put to work. would mean that,in the typical case,the majority of So workers might refuse to work but,once replaced. easily replaced workers cannot exercise their right to they will have little chance of slowing or stopping pro- strike with a reasonable chance of success.However,if duction.For example,this is one of the challenges fac- the right to strike has priority,then workers are not ex 是 ing workers like Walmart or McDonald's workers who ante restrained by the basic economic and civil liberties have done single-day strikes for demonstration and of others and they might be permitted even to engage protest purposes,but have not struck long enough to be in mass civil disobedience when violating those liber- replaced.4 ties.To know which way to think,we need an account What this means is that the majority of workers,who of why workers have the right to strike in the first place are relatively easy to replace,often have to use some A definitional note before proceeding.Three terms coercive tactics if they want to go on strike with some get used in the context of strikes with a great deal of reasonable chance of success.These tactics either pre- ambiguity:violence,coercion,and force.I cannot,in vent managers from hiring replacements,prevent re- this essay,address all such sources of ambiguity but placements from taking struck jobs,or otherwise pre- two things must be said.One source of ambiguity is vent work from getting done.The classic coercive tac- whether these terms are moralized or not.Here I use tics are sit-downs and mass pickets.5 Sit-down strikes them in a non-moralized sense-the use of violence.co- involve occupying the workplace so that no work can ercion,and force might be justified or unjustified,but be done.Mass pickets are when strikers and their sup- to call something an act of violence/coercion/forcing porters surround a workplace with a wall of picketers does not,in itself,imply a judgment that the act was so that no people or supplies can get in or out.For wrong.The other source of ambiguity lies in how these the majority of relatively easy to replace workers to go terms are defined.Each are different but related ways of interfering with and limiting people's freedom.I will use violence to refer to acts intending to cause physical harm to individuals.So,when the police,as part of their 3 Regularly updated tables showing that earnings for groups like strikebreaking activities,beat up picketers during the service workers,food prep,and retail workers are below the na- Justice for Janitors strike in 1990,they committed acts tional median can be found at this website:https://www.bls.gov/emp/ of violence.Forcing is when someone has no reason- p table_104.htm. able alternative to a course of action.So,workers are See the Fight for 15 strikes,which are best summarized and sourced forced to enter the labor market when they have no at the (inaccurately named)Wikipedia entry,"Fast Food Worker Strikes":https://en.wikipedia.org/wiki/Fast_food_worker_strikes 5 I set aside sabotage,the other common tactic,because it raises fur- For accounts of these tactics and their restriction in US law,see ther issues that I cannot address here. White(2010,2014):Pope(2004). 906

Alex Gourevitch used many replacement workers, as it was their legal right to do, but those replacements could not do the job effectively. Installing, servicing, and repairing copper￾wire and FIOS systems turned out to require weeks of training and further on-the-job experience.After seven weeks, the company still was unable to service existing lines, let alone install new ones. Exercising a great deal of discipline and commitment, but no coercion or vi￾olence against replacements or managers, the Verizon workers slowed production enough to win concessions (Gourevitch 2016b). However, low-skill, high labor supply workers in sec￾tors like service, transportation, agriculture, and basic industry are in a different situation. These kinds of workers, in part because they are in such high supply, tend to have less bargaining power and therefore usu￾ally enjoy lower wages, longer hours, and worse work￾ing conditions.3 On top of which, they are more vul￾nerable to forms of illegal pressure. For instance, con￾sider the problem of wage theft, where employers fail to pay the full wages and benefits that workers are legally due. Wage theft is almost exclusively a problem affecting low-wage workers, 64% of whom experience it weekly and who on average lose 15% of their income each year to their employers (Judson and Francisco￾McGuire 2012). These workers already earn incomes not far from the poverty line. They are therefore the ones we intuitively think should have the strongest case for a right to strike. Yet, even if all of the cur￾rent workers walk off and respect the picket, replace￾ments are much easier to find, train, and put to work. So workers might refuse to work but, once replaced, they will have little chance of slowing or stopping pro￾duction. For example, this is one of the challenges fac￾ing workers like Walmart or McDonald’s workers who have done single-day strikes for demonstration and protest purposes, but have not struck long enough to be replaced.4 What this means is that the majority of workers, who are relatively easy to replace, often have to use some coercive tactics if they want to go on strike with some reasonable chance of success. These tactics either pre￾vent managers from hiring replacements, prevent re￾placements from taking struck jobs, or otherwise pre￾vent work from getting done. The classic coercive tac￾tics are sit-downs and mass pickets.5 Sit-down strikes involve occupying the workplace so that no work can be done. Mass pickets are when strikers and their sup￾porters surround a workplace with a wall of picketers so that no people or supplies can get in or out. For the majority of relatively easy to replace workers to go 3 Regularly updated tables showing that earnings for groups like service workers, food prep, and retail workers are below the na￾tional median can be found at this website: https://www.bls.gov/emp/ ep_table_104.htm. 4 See the Fight for 15 strikes, which are best summarized and sourced at the (inaccurately named) Wikipedia entry, “Fast Food Worker Strikes”: https://en.wikipedia.org/wiki/Fast_food_worker_strikes. 5 I set aside sabotage, the other common tactic, because it raises fur￾ther issues that I cannot address here. on strike with some reasonable chance of success they have to use one of these coercive tactics.6 But what is the actual dilemma? It is the following.A basic principle of political morality in any liberal capi￾talist society is that all persons enjoy basic liberties on the condition that they extend the same basic liberties to everyone else and that these liberties should be en￾shrined in law. You are free to exercise your basic lib￾erties so long as you do not coercively interfere with others in the enjoyment of their same liberties. But the aforementioned coercive strike tactics violate a num￾ber of these basic liberties as they are commonly un￾derstood, both in law and political culture. They vio￾late the property rights of owners and their managers, the freedom of contract and association of replacement workers, and they threaten the everyday, background sense of public order of a liberal capitalist societ— in￾sofar as law and order is commonly identified with obe￾dience to the law and uninterrupted flow of commerce. The dilemma is that the right to strike, when exercised by the majority of worst-off workers, seems to con￾flict directly with the basic economic and civil liberties of large numbers of other people and with the back￾ground legal order that secures those liberties. To resolve this dilemma, we need to know what has moral priority: the basic economic and civil liberties, as they are enforced in law, or the right to strike. If the former, then the right to strike must be limited by the requirement to respect the legally protected basic liberties of owners, managers, and replacements. That would mean that, in the typical case, the majority of easily replaced workers cannot exercise their right to strike with a reasonable chance of success. However, if the right to strike has priority, then workers are not ex ante restrained by the basic economic and civil liberties of others and they might be permitted even to engage in mass civil disobedience when violating those liber￾ties. To know which way to think, we need an account of why workers have the right to strike in the first place. A definitional note before proceeding. Three terms get used in the context of strikes with a great deal of ambiguity: violence, coercion, and force. I cannot, in this essay, address all such sources of ambiguity but two things must be said. One source of ambiguity is whether these terms are moralized or not. Here I use them in a non-moralized sense—the use of violence, co￾ercion, and force might be justified or unjustified, but to call something an act of violence/coercion/forcing does not, in itself, imply a judgment that the act was wrong. The other source of ambiguity lies in how these terms are defined. Each are different but related ways of interfering with and limiting people’s freedom. I will use violence to refer to acts intending to cause physical harm to individuals. So, when the police, as part of their strikebreaking activities, beat up picketers during the Justice for Janitors strike in 1990, they committed acts of violence. Forcing is when someone has no reason￾able alternative to a course of action. So, workers are forced to enter the labor market when they have no 6 For accounts of these tactics and their restriction in US law, see White (2010, 2014); Pope (2004). 906 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

The Right to Strike reasonable alternative to entering the labor market- sonable alternative but to find a job.s They cannot pro- say,because finding a job is the only way to earn the duce necessary goods for themselves,nor can they rely money they need to meet their basic needs.?Coercion on the charity of others,nor can they count on adequate is a specific kind of forcing.It is the removal of reason- state benefits.The only way most people can gain reli- able alternatives to a course of action and making it able access to necessary goods is by buying them.The known to the coerced agent that she has no reasonable most reliable,often only,way most people have of ac- alternatives.So.the state coerces workers into not en- quiring enough money to buy those goods is through gaging in sit-ins and mass pickets when it pronounces employment.That is the sense in which they have no those tactics unlawful,makes it known that the tactics reasonable alternative but to find a job working for an are illegal,and commits to the use of police violence employer.Depending on how we measure income and to enforce that law.The threat of violent law enforce- wealth.about 60-80%of Americans are in this situa- ment is enough to say that workers are coerced into tion for most of their adult lives. following the law.Again,these are examples of what This forcing is not symmetrical.A significant mi- violence,forcing,and coercion mean,but to call them nority is not similarly forced to work for someone acts of violence/forcing/coercion is not,so far,a norma- else,though they might do so freely.That minority tive judgment about whether they are justified or not. has enough wealth,either inherited or accumulated or This terminological parsing might seem tedious but both,that they have a reasonable alternative to enter- is necessary both to grasp the stakes of the dilemma ing the labor market.So,this first dimension of oppres- above as well as the nature of the argument I will make sion comes not from the fact that some are forced to about resistance to oppression.The framing dilemma work,but from the fact that the forcing is unequal and has to do with the use of coercive,not violent.strike tac that asymmetry means some are forced to work for tics that give workers a reasonable chance of inducing others.10 That is to say,what makes it oppressive is the employers to renegotiate terms.A further dimension wrong of unequally forcing the majority to work,for to that dilemma is whether the state is justified in using whatever purpose,while others face no such forcing 4号 violence and coercion to prohibit the use of coercive at all.That way of organizing and distributing coer- strike tactics or whether workers are justified in break- cive work obligations,and of imposing certain kinds of 'asn ing the law. forcing on workers,is an unjustifiable way of limiting their freedom and therefore oppressive.To fix ideas,I THE FACTS OF OPPRESSION IN TYPICAL call this the structural element of oppression in class LIBERAL CAPITALIST SOCIETIES societies To explain why the right to strike is a right to resist oppression,I first must give an account of the relevant For a fuller analysis of workers being asymmetrically forced to oppression.Oppression is the unjustifiable deprivation work,or forced into particular occupations see Cohen(1988a,1988b), of freedom.Some deprivations or restrictions of free Ezorsky(2007),and Stanczyk(unpublished).These are primarily an- dom are justified and therefore do not count as op- alytic descriptions of forcing,not normative analyses of what is wrong with that forcing pression.The oppression that matters for this article is the class-based oppression of a typical liberal capitalist For the 60-80%statistic,see Henwood(2005,125).The statistics on wealth among the lower deciles is complex.A recent study shows society.By the class-based oppression,I mean the fact that the net wealth of the bottom 50%is roughly 0.So at least 50%of that the majority of able-bodied people find themselves US households are forced to use job-related income to meet annual expenses,though that has to be modified for those who receive (in- 8 forced to work for members of a relatively small group sufficient to live on)welfare benefits(Saez and Zucman 2014;Wolff who dominate control over productive assets and who, 2012) thereby,enjoy unjustifiable control over the activities 10 To be clear,the oppression here is not with any and all unequal and products of those workers.There are workers and and asymmetric forcing but with the inequality that arises from the then there are owners and their managers.The facts I class structure of society.For instance,it is not oppressive nor an refer to here are mostly drawn from the United States unjust constraint on individual freedom,to force the able-bodied to do some work to support the disabled,children,the sick.the elderly. to keep a consistent description of a specific society or the otherwise socially dependent who cannot perform a share of While there is meaningful variation across liberal cap- necessary labor.Though even there,there is some presumption that italist nations,the basic facts of class-based oppression that burden of working for those who cannot work should be shared do not change in a way that vitiates my argument's ap- equally,and that individuals should not be forced to work for any purpose and under any conditions whatsoever.What I am describing plicability to those countries too.Empirical analysis o as oppression is not the very fact that some work and others don't. 四 each country to which the argument applies,and how but the inequality and asymmetry that arises from the inequalities it would apply,is a separate project. in ownership and control.This forcing is unequal in that some able- The first element of oppression in a class society re- bodied-and even some who by all rights should not have to work at sides in the fact that (a)there are some who are forced all-are forced to work while other able-bodied individuals are not forced to work.And it is asymmetric in that those who have to work into the labor market while others are not and (b) are.on the whole,forced to work for those who hire them.under those who are forced to work-workers-have to work conditions controlled primarily by employers. for those who own productive resources.Workers are My account here of the oppressive distribution of coercive work forced into the labor market because they have no rea- obligations and exploitative relationships relies in part on argu- ments made in Stanczyk (2012;unpublished book manuscript;un- published).Stanczyk provides further arguments about the injustice of unequal,coercive work obligations,with which I agree but that are 7 On forcing see Cohen(1988a):Ezorsky(2007). unnecessary for the argument here. 907

The Right to Strike reasonable alternative to entering the labor market— say, because finding a job is the only way to earn the money they need to meet their basic needs.7 Coercion is a specific kind of forcing. It is the removal of reason￾able alternatives to a course of action and making it known to the coerced agent that she has no reasonable alternatives. So, the state coerces workers into not en￾gaging in sit-ins and mass pickets when it pronounces those tactics unlawful, makes it known that the tactics are illegal, and commits to the use of police violence to enforce that law. The threat of violent law enforce￾ment is enough to say that workers are coerced into following the law. Again, these are examples of what violence, forcing, and coercion mean, but to call them acts of violence/forcing/coercion is not, so far, a norma￾tive judgment about whether they are justified or not. This terminological parsing might seem tedious but is necessary both to grasp the stakes of the dilemma above as well as the nature of the argument I will make about resistance to oppression. The framing dilemma has to do with the use of coercive, not violent, strike tac￾tics that give workers a reasonable chance of inducing employers to renegotiate terms. A further dimension to that dilemma is whether the state is justified in using violence and coercion to prohibit the use of coercive strike tactics or whether workers are justified in break￾ing the law. THE FACTS OF OPPRESSION IN TYPICAL LIBERAL CAPITALIST SOCIETIES To explain why the right to strike is a right to resist oppression, I first must give an account of the relevant oppression. Oppression is the unjustifiable deprivation of freedom. Some deprivations or restrictions of free￾dom are justified and therefore do not count as op￾pression. The oppression that matters for this article is the class-based oppression of a typical liberal capitalist society. By the class-based oppression, I mean the fact that the majority of able-bodied people find themselves forced to work for members of a relatively small group who dominate control over productive assets and who, thereby, enjoy unjustifiable control over the activities and products of those workers. There are workers and then there are owners and their managers. The facts I refer to here are mostly drawn from the United States to keep a consistent description of a specific society. While there is meaningful variation across liberal cap￾italist nations, the basic facts of class-based oppression do not change in a way that vitiates my argument’s ap￾plicability to those countries too. Empirical analysis of each country to which the argument applies, and how it would apply, is a separate project. The first element of oppression in a class society re￾sides in the fact that (a) there are some who are forced into the labor market while others are not and (b) those who are forced to work—workers—have to work for those who own productive resources. Workers are forced into the labor market because they have no rea- 7 On forcing see Cohen (1988a); Ezorsky (2007). sonable alternative but to find a job.8 They cannot pro￾duce necessary goods for themselves, nor can they rely on the charity of others, nor can they count on adequate state benefits. The only way most people can gain reli￾able access to necessary goods is by buying them. The most reliable, often only, way most people have of ac￾quiring enough money to buy those goods is through employment. That is the sense in which they have no reasonable alternative but to find a job working for an employer. Depending on how we measure income and wealth, about 60–80% of Americans are in this situa￾tion for most of their adult lives.9 This forcing is not symmetrical. A significant mi￾nority is not similarly forced to work for someone else, though they might do so freely. That minority has enough wealth, either inherited or accumulated or both, that they have a reasonable alternative to enter￾ing the labor market. So, this first dimension of oppres￾sion comes not from the fact that some are forced to work, but from the fact that the forcing is unequal and that asymmetry means some are forced to work for others.10 That is to say, what makes it oppressive is the wrong of unequally forcing the majority to work, for whatever purpose, while others face no such forcing at all.11 That way of organizing and distributing coer￾cive work obligations, and of imposing certain kinds of forcing on workers, is an unjustifiable way of limiting their freedom and therefore oppressive. To fix ideas, I call this the structural element of oppression in class societies. 8 For a fuller analysis of workers being asymmetrically forced to work, or forced into particular occupations see Cohen (1988a,1988b), Ezorsky (2007), and Stanczyk (unpublished). These are primarily an￾alytic descriptions of forcing, not normative analyses of what is wrong with that forcing. 9 For the 60–80% statistic, see Henwood (2005, 125). The statistics on wealth among the lower deciles is complex. A recent study shows that the net wealth of the bottom 50% is roughly 0. So at least 50% of US households are forced to use job-related income to meet annual expenses, though that has to be modified for those who receive (in￾sufficient to live on) welfare benefits (Saez and Zucman 2014; Wolff 2012). 10 To be clear, the oppression here is not with any and all unequal and asymmetric forcing but with the inequality that arises from the class structure of society. For instance, it is not oppressive nor an unjust constraint on individual freedom, to force the able-bodied to do some work to support the disabled, children, the sick, the elderly, or the otherwise socially dependent who cannot perform a share of necessary labor. Though even there, there is some presumption that that burden of working for those who cannot work should be shared equally, and that individuals should not be forced to work for any purpose and under any conditions whatsoever.What I am describing as oppression is not the very fact that some work and others don’t, but the inequality and asymmetry that arises from the inequalities in ownership and control. This forcing is unequal in that some able￾bodied—and even some who by all rights should not have to work at all—are forced to work while other able-bodied individuals are not forced to work. And it is asymmetric in that those who have to work are, on the whole, forced to work for those who hire them, under conditions controlled primarily by employers. 11 My account here of the oppressive distribution of coercive work obligations and exploitative relationships relies in part on argu￾ments made in Stanczyk (2012; unpublished book manuscript; un￾published). Stanczyk provides further arguments about the injustice of unequal, coercive work obligations, with which I agree but that are unnecessary for the argument here. 907 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

Alex Gourevitch This structural element leads to a second,interper- United States,18%of current employees and sonal dimension of oppression in the workplace itself. 37%of workers in their lifetime work under non- Workers are forced to join workplaces typically char- compete agreements(Bunker 2016).These clauses :000100006/L0LoL acterized by large swathes of uncontrolled managerial give managers legal power to forbid workers from power and authority.This oppression is interpersonal working for competitors.The contract that the in the sense that it is power that specific individuals- Communications Workers of America had with employers and their managers-have to get other spe- Verizon until 2015 included a right for managers cific individuals-employees-to do what they want to force employers to perform from 10 to 15 hours We can distinguish between three overlapping forms of overtime per week and to take some other that this interpersonal,workplace oppression takes: day instead of Saturday as an off-day (Gourevitch subordination,delegation,and dependence. 2016a).These legal powers are not parts of the managerial prerogatives that all employers have. Subordination:Employers have what are some- Rather.they are voluntarily delegated to employ- times called "managerial prerogatives,"12 which ers by workers.In many cases,though the delega- are legislative and judicial grants of authority to tion is in one sense voluntary,in another sense it is owners and their managers to make decisions forced.This will especially be the case if workers. about investment,hiring and firing,plant location, who are forced to find jobs,can only find jobs in work process,and the like.13 These powers come sectors where the only contracts available are ones from judicial precedent and from the constella- that require these kinds of delegations. tion of corporate,labor,contract,and property Dependence:Finally,managers might have the law.Managers may change working speeds and material power to force employees to submit to assigned tasks,the hours of work,or even force commands or even to accept violations of their workers to spend up to an hour going through se- rights because of the worker's dependence on curity lines after work without paying them(In- the employer.A headline example is wage-theft, 4号元 tegrity Staffing Solutions,Inc.v.Busk 2014).Man- which affects American workers to the tune of $8- agers may fire workers for Facebook comments. $14 billion per year(Eisenbray 2015;Judson and their sexual orientation,for being too sexually ap- Francisco-McGuire 2012:NELP 2013;Axt 2013) pealing,or for not being appealing enough(Emer- In other cases,workers have been forced to wear son 2011:Hess 2013;Strauss 2013;Velasco 2011). diapers rather than go to the bathroom,refused Workers may be given more tasks than can be per- legally required lunch breaks,or pressured to work formed in the allotted time,locked in the work- through them,forced to keep working after their place overnight,required to work in extreme heat shift is up,or denied the right to read or turn on air and other physically hazardous conditions,or puni- conditioning during break (Oxfam 2015;Bennett- tively isolated from other coworkers (Greenhouse Smith 2012;Egelko 2011;Greenhouse 2009,3- 2009.26-2749-55,89,111-112:Hsu2011:JOM0 12;Little 2013;Vega 2012).Other employers have 2013;Urbina 2013).Managers may pressure em- forced their workers to stay home rather than go ployees into unwanted political behavior(Hertel- out on weekends or to switch churches and al- Fernandez 2015).In all of these cases,managers ter religious practices on pain of being fired and 15.501 are exercising legally permitted prerogatives.14 The deported (Garrison,Bensinger,and Singer-Vine law does not require that workers have any formal 2015).In these cases,employers are not exercising say in how those powers are exercised.In fact,in legal prerogatives,they are instead taking advan- in3黑ea8s tage of the material power that comes with threat- ening to fire or otherwise discipline workers.This ordination in the strict sense:workers are subject material power to get workers to do things that em- to the will of the employer. ployers want is in part a function of the class struc- Delegation:There are also other discretionary le- ture of society,both in the wide sense of workers gal powers that managers have not by legal statute being asymmetrically dependent on owners,and in or precedent but because workers have voluntar- the narrower sense of workers being legally subor- ily delegated these powers in the contract.For dinate to employers. instance,workers might sign a contract that al- lows managers to require employees to submit Subordination,delegation,and dependence add up eys to random drug testing or unannounced searches to a form of interpersonal oppression that employers (American Civil Liberties Union 2017).In the and their managers have over their employees.The weight and scope of this oppression will vary,but those 12 The one book-length study of managerial prerogatives is Storey are variations on a theme.Employers and managers en- (2014).On the "core of entrepreneurial control"see Atleson (1983 joy wide swaths of uncontrolled or insufficiently con- 67-96). trolled power over their employees.This is the sec- 13 On the injustice of these"managerial prerogatives"see Stanczyk ond face of oppression in a class society and it is a (unpublished),Hsieh(2005),and Anderson(2015,2017). 14 On the sense in which the workplace is properly understood as a live issue.For instance,during the Verizon strike of tue den and a mocr the 2016,one major complaint was that,when out on the job,hanging cable,or repairing lines,some technicians United States or England (Greenberg unpublished;Rosioru 2013). had to ask their manager for permission to go to the 908

Alex Gourevitch This structural element leads to a second, interper￾sonal dimension of oppression in the workplace itself. Workers are forced to join workplaces typically char￾acterized by large swathes of uncontrolled managerial power and authority. This oppression is interpersonal in the sense that it is power that specific individuals— employers and their managers—have to get other spe￾cific individuals—employees—to do what they want. We can distinguish between three overlapping forms that this interpersonal, workplace oppression takes: subordination, delegation, and dependence. Subordination: Employers have what are some￾times called “managerial prerogatives,”12 which are legislative and judicial grants of authority to owners and their managers to make decisions about investment, hiring and firing, plant location, work process, and the like.13 These powers come from judicial precedent and from the constella￾tion of corporate, labor, contract, and property law. Managers may change working speeds and assigned tasks, the hours of work, or even force workers to spend up to an hour going through se￾curity lines after work without paying them (In￾tegrity Staffing Solutions, Inc. v. Busk 2014). Man￾agers may fire workers for Facebook comments, their sexual orientation, for being too sexually ap￾pealing, or for not being appealing enough (Emer￾son 2011; Hess 2013; Strauss 2013; Velasco 2011). Workers may be given more tasks than can be per￾formed in the allotted time, locked in the work￾place overnight, required to work in extreme heat and other physically hazardous conditions, or puni￾tively isolated from other coworkers (Greenhouse 2009, 26–27, 49–55, 89, 111–112; Hsu 2011; JOMO 2013; Urbina 2013). Managers may pressure em￾ployees into unwanted political behavior (Hertel￾Fernandez 2015). In all of these cases, managers are exercising legally permitted prerogatives.14 The law does not require that workers have any formal say in how those powers are exercised. In fact, in nearly every liberal capitalist country, employees are defined, in law, as “subordinates.”15 This is sub￾ordination in the strict sense: workers are subject to the will of the employer. Delegation: There are also other discretionary le￾gal powers that managers have not by legal statute or precedent but because workers have voluntar￾ily delegated these powers in the contract. For instance, workers might sign a contract that al￾lows managers to require employees to submit to random drug testing or unannounced searches (American Civil Liberties Union 2017). In the 12 The one book-length study of managerial prerogatives is Storey (2014). On the “core of entrepreneurial control” see Atleson (1983, 67–96). 13 On the injustice of these “managerial prerogatives,” see Stanczyk (unpublished), Hsieh (2005), and Anderson (2015, 2017). 14 On the sense in which the workplace is properly understood as a place of government created by law, see Anderson (2017, 37–73). 15 This is just as true in Sweden and social democracies as it is in the United States or England (Greenberg unpublished; Rosioru 2013). United States, 18% of current employees and 37% of workers in their lifetime work under non￾compete agreements (Bunker 2016). These clauses give managers legal power to forbid workers from working for competitors. The contract that the Communications Workers of America had with Verizon until 2015 included a right for managers to force employers to perform from 10 to 15 hours of overtime per week and to take some other day instead of Saturday as an off-day (Gourevitch 2016a). These legal powers are not parts of the managerial prerogatives that all employers have. Rather, they are voluntarily delegated to employ￾ers by workers. In many cases, though the delega￾tion is in one sense voluntary, in another sense it is forced. This will especially be the case if workers, who are forced to find jobs, can only find jobs in sectors where the only contracts available are ones that require these kinds of delegations. Dependence: Finally, managers might have the material power to force employees to submit to commands or even to accept violations of their rights because of the worker’s dependence on the employer. A headline example is wage-theft, which affects American workers to the tune of $8– $14 billion per year (Eisenbray 2015; Judson and Francisco-McGuire 2012; NELP 2013; Axt 2013). In other cases, workers have been forced to wear diapers rather than go to the bathroom, refused legally required lunch breaks, or pressured to work through them, forced to keep working after their shift is up, or denied the right to read or turn on air conditioning during break (Oxfam 2015; Bennett￾Smith 2012; Egelko 2011; Greenhouse 2009, 3– 12; Little 2013; Vega 2012). Other employers have forced their workers to stay home rather than go out on weekends or to switch churches and al￾ter religious practices on pain of being fired and deported (Garrison, Bensinger, and Singer-Vine 2015). In these cases, employers are not exercising legal prerogatives, they are instead taking advan￾tage of the material power that comes with threat￾ening to fire or otherwise discipline workers. This material power to get workers to do things that em￾ployers want is in part a function of the class struc￾ture of society, both in the wide sense of workers being asymmetrically dependent on owners, and in the narrower sense of workers being legally subor￾dinate to employers. Subordination, delegation, and dependence add up to a form of interpersonal oppression that employers and their managers have over their employees. The weight and scope of this oppression will vary, but those are variations on a theme.Employers and managers en￾joy wide swaths of uncontrolled or insufficiently con￾trolled power over their employees. This is the sec￾ond face of oppression in a class society and it is a live issue. For instance, during the Verizon strike of 2016, one major complaint was that, when out on the job, hanging cable, or repairing lines, some technicians had to ask their manager for permission to go to the 908 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

The Right to Strike bathroom or to get a drink of water.As one striker said subject to dominating authority,and made asymmet- in an interview,"Do I have to tell my boss every single rically dependent in the economy does not produce minute of what I am doing?This is basic human dig- a fair way of distributing the obligation to work and nity"(Gourevitch 2016b).If they did not ask or wait to the rewards of social production.Rather,it constrains get clear approval from their manager,then they were their freedom in a way that secures the exploitation of guilty of a time code violation and were suspended for one class by another.The weight of these different op- up to six weeks.The strike made workplace control a pressions is unevenly experienced across different seg- direct issue and one measure of its success was a change ments of workers.Various factors modify the basic facts in disciplinary proceedings(ibid.).To take another ex- about class and oppression.We have seen,for instance, ample,the Fight for $15 strikes have made control over the difference between being in a high labor supply ver- scheduling a central demand,even managing in certain sus a low labor supply sector.High labor supply sec- states and municipalities to pass laws mandating min- tors involve more intense labor competition,resulting imal regularity and predictability in weekly schedules in weaker bargaining power for workers and intensified (Andrias2016,47-70). oppression.The opposite holds for lower labor sup- So,if the first face of oppression is that workers are ply sectors-like software programmers or fiber-optics forced to work for some employer or another who technicians-whose greater bargaining power means does not face a similar kind of forcing:the second face they face class-based oppression less intensively.This is that workers are forced to become de jure and de has downstream consequences for our analysis of par- facto subordinates to a specific employer.16 The third ticular strikes,but it does not affect the argument for face of oppression is the systematic distributive ef- the right to strike itself. fects of structural and interpersonal oppression.While My description of the economy is controversial. some instances of class-based oppression are idiosyn- Some will either reject aspects of the empirical descrip- cratic,in general it has consistent distributive effects. tion,find it too underspecified to agree,or they will The structural and interpersonal oppression of work- disagree with the normative interpretation of it as in- 4号元 ers produces wage-bargains and limits on wealth ac- volving systematic,unjustified restrictions on workers' cumulation that reproduce workers'economic depen- freedom.Any attempt to give a more detailed account dence on employers,their over or underemployment, of this political economy of exploitation would leave and thereby allows a relatively small group of owners no room for the rest of the argument.In what follows, and highly paid managers to accumulate most of the the reader does not have to agree with every aspect of wealth and income.I cannot discuss the extensive lit- my description of liberal capitalist arrangements.One erature on inequality.I can only cite some generally need only agree that the typical liberal capitalist econ- well-known facts and papers pointing to the role of in- omy is characterized by considerable,class-based op- equalities in power as determining factors in these out. pression of workers,for reasons similar to the ones I comes.17 To the degree that inequalities are a product of have just provided,to then think that the right to strike structural and workplace oppression,distributive out- can be seen as a right to resist oppression. comes are their own dimension of oppression and serve to reproduce those basic class relationships.Above all, there is one unjustifiable distributive effect of this op- THREE VERSIONS OF THE RIGHT TO STRIKE:RADICAL,SOCIAL-DEMOCRATIC, pression:that the majority of wage-bargains ensure the AND LIBERAL reproduction of that oppressive class structure.At any given point in time,a majority of workers do not earn There is more than one way to justify the right to strike enough to both meet their needs and to save such that and,in so doing,to explain the shape that right ought they can employ themselves or start their own busi- to have.As we shall see,there is the liberal,the social- nesses.They must therefore remain workers or,to the democratic,and the radical account.Any justification degree they rise,they do so either by displacing others of a right must give an account not just of the interest or by taking the structurally limited number of oppor- it protects but of how that right is shaped to protect that tunities available.18 interest.In the case of the radical argument for the right Each of these different faces of oppression to strike,which I will defend against the other two con- structural,interpersonal,and distributive-is a distinct ceptions,the relevant human interest is liberty.Work- injustice.Together they form an interrelated and mutu- ers have an interest in resisting the oppression of class ally reinforcing set of oppressive relationships.The var- society by using their collective power to reduce that eys ious ways in which workers are forced to work.made oppression.Their interest is a liberty interest in a dou- ble sense.First,it is an interest in not being oppressed, 16 For a more extensive catalogue of the legal and de facto powers or in not facing certain kinds of forcing,coercion,and that employers have to command their workers in a wide range of subjection to authority that they shouldn't have to.Any matters see Maltby(2009),Greenhouse(2009),and Bertram,Goure- resistance to those kinds of unjustified limitations of vitch.and Robin (201). freedom carries with it,at least implicitly,a demand The most famous work is,of course,Thomas Piketty's,although the for liberties not yet enjoyed.19 That is a demand for a social determinants of the inequality he discovers are hotly debated control over portions of one's life that one does not yet (Piketty 2014,237-76).See also Saez and Zucman 2014:Mohun 2014 orthe ee wrkerniduly tee but collee- 19 David Borman makes a similar and important argument for tively unfree to leave his or her class position,see Cohen(1988b). the right to strike as a version of the "right of justification"or 909

The Right to Strike bathroom or to get a drink of water. As one striker said in an interview, “Do I have to tell my boss every single minute of what I am doing? This is basic human dig￾nity” (Gourevitch 2016b). If they did not ask or wait to get clear approval from their manager, then they were guilty of a time code violation and were suspended for up to six weeks. The strike made workplace control a direct issue and one measure of its success was a change in disciplinary proceedings (ibid.). To take another ex￾ample, the Fight for $15 strikes have made control over scheduling a central demand, even managing in certain states and municipalities to pass laws mandating min￾imal regularity and predictability in weekly schedules (Andrias 2016, 47–70). So, if the first face of oppression is that workers are forced to work for some employer or another who does not face a similar kind of forcing; the second face is that workers are forced to become de jure and de facto subordinates to a specific employer.16 The third face of oppression is the systematic distributive ef￾fects of structural and interpersonal oppression. While some instances of class-based oppression are idiosyn￾cratic, in general it has consistent distributive effects. The structural and interpersonal oppression of work￾ers produces wage-bargains and limits on wealth ac￾cumulation that reproduce workers’ economic depen￾dence on employers, their over or underemployment, and thereby allows a relatively small group of owners and highly paid managers to accumulate most of the wealth and income. I cannot discuss the extensive lit￾erature on inequality. I can only cite some generally well-known facts and papers pointing to the role of in￾equalities in power as determining factors in these out￾comes.17 To the degree that inequalities are a product of structural and workplace oppression, distributive out￾comes are their own dimension of oppression and serve to reproduce those basic class relationships. Above all, there is one unjustifiable distributive effect of this op￾pression: that the majority of wage-bargains ensure the reproduction of that oppressive class structure. At any given point in time, a majority of workers do not earn enough to both meet their needs and to save such that they can employ themselves or start their own busi￾nesses. They must therefore remain workers or, to the degree they rise, they do so either by displacing others or by taking the structurally limited number of oppor￾tunities available.18 Each of these different faces of oppression— structural, interpersonal, and distributive—is a distinct injustice. Together they form an interrelated and mutu￾ally reinforcing set of oppressive relationships. The var￾ious ways in which workers are forced to work, made 16 For a more extensive catalogue of the legal and de facto powers that employers have to command their workers in a wide range of matters see Maltby (2009),Greenhouse (2009), and Bertram,Goure￾vitch, and Robin (2012). 17 The most famous work is, of course,Thomas Piketty’s, although the social determinants of the inequality he discovers are hotly debated (Piketty 2014, 237–76). See also Saez and Zucman 2014;Mohun 2014; Song et al. 2015; Barth et al. 2014; Mishel and Davis 2015. 18 For the sense in which each worker is individually free but collec￾tively unfree to leave his or her class position, see Cohen (1988b). subject to dominating authority, and made asymmet￾rically dependent in the economy does not produce a fair way of distributing the obligation to work and the rewards of social production. Rather, it constrains their freedom in a way that secures the exploitation of one class by another. The weight of these different op￾pressions is unevenly experienced across different seg￾ments of workers.Various factors modify the basic facts about class and oppression. We have seen, for instance, the difference between being in a high labor supply ver￾sus a low labor supply sector. High labor supply sec￾tors involve more intense labor competition, resulting in weaker bargaining power for workers and intensified oppression. The opposite holds for lower labor sup￾ply sectors—like software programmers or fiber-optics technicians—whose greater bargaining power means they face class-based oppression less intensively. This has downstream consequences for our analysis of par￾ticular strikes, but it does not affect the argument for the right to strike itself. My description of the economy is controversial. Some will either reject aspects of the empirical descrip￾tion, find it too underspecified to agree, or they will disagree with the normative interpretation of it as in￾volving systematic, unjustified restrictions on workers’ freedom. Any attempt to give a more detailed account of this political economy of exploitation would leave no room for the rest of the argument. In what follows, the reader does not have to agree with every aspect of my description of liberal capitalist arrangements. One need only agree that the typical liberal capitalist econ￾omy is characterized by considerable, class-based op￾pression of workers, for reasons similar to the ones I have just provided, to then think that the right to strike can be seen as a right to resist oppression. THREE VERSIONS OF THE RIGHT TO STRIKE: RADICAL, SOCIAL-DEMOCRATIC, AND LIBERAL There is more than one way to justify the right to strike and, in so doing, to explain the shape that right ought to have. As we shall see, there is the liberal, the social￾democratic, and the radical account. Any justification of a right must give an account not just of the interest it protects but of how that right is shaped to protect that interest. In the case of the radical argument for the right to strike, which I will defend against the other two con￾ceptions, the relevant human interest is liberty. Work￾ers have an interest in resisting the oppression of class society by using their collective power to reduce that oppression. Their interest is a liberty interest in a dou￾ble sense. First, it is an interest in not being oppressed, or in not facing certain kinds of forcing, coercion, and subjection to authority that they shouldn’t have to.Any resistance to those kinds of unjustified limitations of freedom carries with it, at least implicitly, a demand for liberties not yet enjoyed.19 That is a demand for a control over portions of one’s life that one does not yet 19 David Borman makes a similar and important argument for the right to strike as a version of the "right of justification" or 909 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

Alex Gourevitch enjoy.Second,and consequently,the right to strike is conditions to actual circumstances in the wrong way.It grounded in an interest in using one's own individual makes it appear like those ideal rights-their grounds. and collective agency to resist-or even overcome- limits,and permissions-apply as limiting conditions that oppression.The interest in using one's own agency to severely nonideal political and social relations.As to resist oppression flows naturally from the demand such,it lends the moral weight of the ideal to the real for liberties not yet enjoyed.After all,that demand for in a way that obscures the oppression of that social control is in the name of giving proper space to work- reality. ers'capacity for self-determination,which is the same To be clear,this methodological error is not a log- capacity that expresses itself in the activity of striking ically necessary feature of the liberal or social demo- for greater freedom. cratic views I shall present and criticize.But it is a recur- op//s On this radical view.the right to strike has both an ring or latent tendency that leads to mistakes and ambi- intrinsic and instrumental relation to liberty.It has in- guities about the basis for and the proper shape of the trinsic value as an (at least implicit)demand for self- right to strike.Insofar as this methodological issue is emancipation or the winning of greater liberty through not directly confronted,it creates real confusion about one's own efforts.It has instrumental value insofar as the basis for the right to strike-about whether the lib. the strike is on the whole an effective means for resist- eral or social democratic versions of the right to strike ing the oppressiveness of a class society.For the right are responses to oppression or theories of a species of to strike to enjoy its proper connection to liberty,work- right that one enjoys under ideal conditions.The radi- ers must have a reasonable chance of carrying out an cal version of the right to strike that I defend,however, effective strike,otherwise it would lose its instrumen- is explicit in its justificatory approach.The radical ar- tal value as a way of resisting oppression.If prevented gument makes no claim regarding whether members of from using a reasonable array of effective means,ex- an ideal society would enjoy a right to strike nor does ercising the right to strike would not be a means of it say what that right to strike would look like under reducing oppression and,therefore,strikes would also ideal circumstances.20 Instead,it answers the question, 4号元 be of very limited value as acts of self-emancipation.It "What kind of right to strike should workers have?"by would not be an instance of workers attempting to use asking,"What may workers who face oppression do to their own capacity for self-determination to increase resist that oppression?"That is to say,it is an argument the control they ought to have over the terms of their about the kinds of rights those who face oppression daily activity. have in virtue of the fact that they are oppressed and To grasp what makes this radical view distinctive,let only in the context of that oppression.This is a different us compare it with two other conceptions of the right kind of reasoning and yields a different view about why to strike:the liberal and the social-democratic.These certain ways of exercising that right are permissible or two other accounts are internally coherent.But they not,21 are deficient in at least one,potentially two,ways.The Again,the primary disagreement for the view I de- 是 first deficiency is substantive.The liberal and social- fend is substantive.The radical view takes a distinct po- democratic accounts fail to properly identify the na- sition on what is oppressive about a class-divided soci- ture,depth,and scope of the class-based oppression in ety and therefore what kind of right workers have to existing capitalist societies.This means their justifica- resist it.But a parallel and secondary concern regards 5.501g tion of the right to strike is improperly narrow or oth- the method by which this argument is justified.In what erwise constrained in ways it ought not to be follows,I will make clear when the critique of the lib- The second deficiency is methodological.Some lib eral and social democratic point of view is substantive eral and social democratic accounts proceed in a dif- and when it is methodological. ferent way that,at best,results in some confusion and at worst,produces ideological obfuscation.Those ac- counts begin by asking what kind of right to strike would workers in an ideal society enjoy.They then use the answer to justify and describe the shape of the right 20 It is worth observing that in nearly all visions of ideal societies. including classless ones,every work-capable individual is under some to strike that workers in actually existing.class-divided kind of work obligation to do at least what is necessary to maintain societies,enjoy.This move,whether explicit or implicit the existence of that society.Though there might not be classes,there is always illicit.It not only changes the normatively would be workers in workplaces,and thus one might imagine that relevant question from what is permitted under condi- some kind of properly regulated right to strike would be a constitu- tive feature of the ideal constitution.As one such right,it would be tions of oppression to what one ought to be free to do limited by the need to respect the other equally fundamental rights,it under ideal ones,but it also lends the weight of ideal would be instantiated in legitimate law,and would be administered by the relevant legal authority.I do not defend or reject that argu- ment,my point is just to show that (a)it is not absurd to imagine some kind of right to strike even in an ideal society and (b)its shape. relationship to legal authority,and its derivation are dramatically dif. self-determination in economic life (Borman 2017).While very friendly to his contractualist argument,mine springs from argu- ments about freedom (and oppression)beyond the absence of for- of nights to resist oppression.But I consider myself a kind of fellow mal practices of justification in workplace governance.Further,I see traveler with other similar attempts,like that of Tommie Shelby,to ar- the problem of self-determination as including the problem of self- ticulate the different rights and liberties that people have in the face emancipation,of justifying mass disobedience,and of how to explain of systematic oppression,or what Shelby calls "intolerable injustice' the shape of right to strike. (Shelby2016,1-48.201-27). 910

Alex Gourevitch enjoy. Second, and consequently, the right to strike is grounded in an interest in using one’s own individual and collective agency to resist—or even overcome— that oppression. The interest in using one’s own agency to resist oppression flows naturally from the demand for liberties not yet enjoyed. After all, that demand for control is in the name of giving proper space to work￾ers’ capacity for self-determination, which is the same capacity that expresses itself in the activity of striking for greater freedom. On this radical view, the right to strike has both an intrinsic and instrumental relation to liberty. It has in￾trinsic value as an (at least implicit) demand for self￾emancipation or the winning of greater liberty through one’s own efforts. It has instrumental value insofar as the strike is on the whole an effective means for resist￾ing the oppressiveness of a class society. For the right to strike to enjoy its proper connection to liberty, work￾ers must have a reasonable chance of carrying out an effective strike, otherwise it would lose its instrumen￾tal value as a way of resisting oppression. If prevented from using a reasonable array of effective means, ex￾ercising the right to strike would not be a means of reducing oppression and, therefore, strikes would also be of very limited value as acts of self-emancipation. It would not be an instance of workers attempting to use their own capacity for self-determination to increase the control they ought to have over the terms of their daily activity. To grasp what makes this radical view distinctive, let us compare it with two other conceptions of the right to strike: the liberal and the social-democratic. These two other accounts are internally coherent. But they are deficient in at least one, potentially two, ways. The first deficiency is substantive. The liberal and social￾democratic accounts fail to properly identify the na￾ture, depth, and scope of the class-based oppression in existing capitalist societies. This means their justifica￾tion of the right to strike is improperly narrow or oth￾erwise constrained in ways it ought not to be. The second deficiency is methodological. Some lib￾eral and social democratic accounts proceed in a dif￾ferent way that, at best, results in some confusion and, at worst, produces ideological obfuscation. Those ac￾counts begin by asking what kind of right to strike would workers in an ideal society enjoy. They then use the answer to justify and describe the shape of the right to strike that workers in actually existing, class-divided societies, enjoy. This move, whether explicit or implicit, is always illicit. It not only changes the normatively relevant question from what is permitted under condi￾tions of oppression to what one ought to be free to do under ideal ones, but it also lends the weight of ideal self-determination in economic life (Borman 2017). While very friendly to his contractualist argument, mine springs from argu￾ments about freedom (and oppression) beyond the absence of for￾mal practices of justification in workplace governance. Further, I see the problem of self-determination as including the problem of self￾emancipation, of justifying mass disobedience, and of how to explain the shape of right to strike. conditions to actual circumstances in the wrong way. It makes it appear like those ideal rights—their grounds, limits, and permissions—apply as limiting conditions to severely nonideal political and social relations. As such, it lends the moral weight of the ideal to the real in a way that obscures the oppression of that social reality. To be clear, this methodological error is not a log￾ically necessary feature of the liberal or social demo￾cratic views I shall present and criticize. But it is a recur￾ring or latent tendency that leads to mistakes and ambi￾guities about the basis for and the proper shape of the right to strike. Insofar as this methodological issue is not directly confronted, it creates real confusion about the basis for the right to strike—about whether the lib￾eral or social democratic versions of the right to strike are responses to oppression or theories of a species of right that one enjoys under ideal conditions. The radi￾cal version of the right to strike that I defend, however, is explicit in its justificatory approach. The radical ar￾gument makes no claim regarding whether members of an ideal society would enjoy a right to strike nor does it say what that right to strike would look like under ideal circumstances.20 Instead, it answers the question, "What kind of right to strike should workers have?" by asking, "What may workers who face oppression do to resist that oppression?" That is to say, it is an argument about the kinds of rights those who face oppression have in virtue of the fact that they are oppressed and only in the context of that oppression.This is a different kind of reasoning and yields a different view about why certain ways of exercising that right are permissible or not.21 Again, the primary disagreement for the view I de￾fend is substantive. The radical view takes a distinct po￾sition on what is oppressive about a class-divided soci￾ety and therefore what kind of right workers have to resist it. But a parallel and secondary concern regards the method by which this argument is justified. In what follows, I will make clear when the critique of the lib￾eral and social democratic point of view is substantive and when it is methodological. 20 It is worth observing that in nearly all visions of ideal societies, including classless ones, every work-capable individual is under some kind of work obligation to do at least what is necessary to maintain the existence of that society. Though there might not be classes, there would be workers in workplaces, and thus one might imagine that some kind of properly regulated right to strike would be a constitu￾tive feature of the ideal constitution. As one such right, it would be limited by the need to respect the other equally fundamental rights,it would be instantiated in legitimate law, and would be administered by the relevant legal authority. I do not defend or reject that argu￾ment, my point is just to show that (a) it is not absurd to imagine some kind of right to strike even in an ideal society and (b) its shape, relationship to legal authority, and its derivation are dramatically dif￾ferent from the radical right to strike articulated in this article. 21 It is beyond the scope of my article to develop a general theory of rights to resist oppression. But I consider myself a kind of fellow traveler with other similar attempts,like that of Tommie Shelby, to ar￾ticulate the different rights and liberties that people have in the face of systematic oppression, or what Shelby calls “intolerable injustice” (Shelby 2016, 1–48, 201–27). 910 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

The Right to Strike The Classical Liberal Theory as the basic liberties from which it is derived.Strikers must respect the fundamental rules of the market- On what we can call the classical liberal view,the right such as freedom of contract and property rights-as to strike is a derivative right.It is understood as one well as the general legal order of which those rules are way of exercising the right of free association and free- a part.That is why those who think about the right dom of contract in the economy.As part of those rights. to strike from within a broadly classical liberal frame- individuals are free to associate together and to decide work tend to argue that legitimate strike activity must to make contracts they all agree to.This is what the ex- ercise of those basic rights can look like in the economy. be strictly limited and regulated(Shenfield 1986,9-28. 3946;Hayek2011,384404). John Stuart Mill made roughly this argument when say- ing the strike was an It is not hard to see how this approach would re- solve the dilemma with which this article opened.The right to strike would be subordinate to the basic lib- "indispensable means of enabling the sellers of labour to erties from which it is derived.That means that strik- take due care of their own interests under a system of com- petition...Strikes,therefore,and the trade societies which ers would not be permitted to use any coercive strike render strikes possible,are for these various reasons not tactics like sit-downs and mass pickets.Any such per- a mischievous,but on the contrary,a valuable part of the mission would render this account of the right to strike existing machinery of society."(Mill 1909.V.10.32) incoherent or contradictory since it would permit vi- olation of some of the basic liberties from which this Far from a rejection or critique of existing economic right is derived.Much American labor law fits closely arrangements,the right to strike is a permitted,even with the classical liberal view that workers may go on “valuable part,.”of the way they function strike but they (a)may not interfere with the "core of As with the exercise of any basic right,the right to entrepreneurial control"23 that is said to inhere in the strike is limited by the requirement to respect every basic property rights of owners and(b)may not in any way coerce strikebreakers/other workers.That is the 4号 one else's equal freedom to exercise their basic rights Therefore,workers may not interfere in any coercive prevailing legal rationale in the US for prohibiting mass way with others'exercise of their rights.As Mill put it. pickets and sit-ins,as well as for permitting employers to hire permanent replacement workers during most & "It is,however,an indispensable condition of tolerating strikes.24 combinations,that they should be voluntary.No sever- A second and related limit of the liberal argument ity,necessary to the purpose,is too great to be employed for the right to strike is that,to the degree it makes an against attempts to compel workmen to join a union,or argument for the right to strike,it tends to do so by take part in a strike by threats or violence.Mere moral arguing that,ideally speaking,we ought to enjoy free- compulsion,by the expression of opinion,the law ought doms of association and contract.The right to strike not to interfere with;it belongs to more enlightened opin- is then derived from those rights.But workers already ion to restrain it,by rectifying the moral sentiments of the more or less enjoy those rights.Therefore,there is no people.”(V.10.33) significant disjunction between what they ought to be free to do and what they are already free to do,at least While strikes are acceptable ways for workers to pur- in the relevant area of economic activity.There are no sue their interests.their refusal to work must be un- grounds,then,for saying they should be permitted to do forced.Likewise,strikers may attempt to use moral sua- what they are not legally allowed to do-such as use co- sion or otherwise reason with employers and replace- ercive strike tactics that might violate others'freedom ment workers,but strikers may not coercively interfere of contract or association.That is because,on the clas- with others'personal or economic freedoms. sical liberal view,the right to strike is just an expression One important feature of this classical liberal case is of already existing.adequately instituted rights,rather that it does not justify the right to strike by reference to than a moral right claimed against unjust limitations on any claim about economic injustice.22 The liberal case workers'freedom.There is no room on this view even does not require us to think that there is some unfair to consider the right to strike as a right to resist oppres- limitation of workers'freedom nor any other form of sion,let alone explain the shape of that right. unfair disadvantage that workers face in the labor mar- ket in the name of which they claim a right to strike.In some cases,the liberal case explicitly denies any such The Social Democratic Theory disadvantage exists (Shenfield 1986,29-38).Instead. 四 On the social democratic view,unlike the liberal view, the classical liberal right to strike is derived from the conventional set of legally protected basic liberties-of the right to strike is derived by recognizing an injustice contract and association-that are adequate to secure in the capitalist economy.Even with a suitably estab- lished welfare state,a social democrat will say there the justice of a regime.That is why the right to strike is also limited by the same non-interference conditions 23 See footnote 11. 24 Specifically,US law permits hiring permanent replacements work- 22 There are those who ground the right to strike in freedom of asso- ers in all strikes except the narrow class of strikes that are against ciation who do appeal to economic injustices (e.g.,Gernigon,Odero unfair labor practices.On this and other distinctively American con and Guido 1998;Leader 1992).As I discuss below,they are best seen straints on the right to strike.see Atleson(1983.67-96).Burns(2011. as versions of the social democratic argument. 47-136),Pope(2004),and White(2010,2014). 911

The Right to Strike The Classical Liberal Theory On what we can call the classical liberal view, the right to strike is a derivative right. It is understood as one way of exercising the right of free association and free￾dom of contract in the economy.As part of those rights, individuals are free to associate together and to decide to make contracts they all agree to. This is what the ex￾ercise of those basic rights can look like in the economy. John Stuart Mill made roughly this argument when say￾ing the strike was an “indispensable means of enabling the sellers of labour to take due care of their own interests under a system of com￾petition…Strikes, therefore, and the trade societies which render strikes possible, are for these various reasons not a mischievous, but on the contrary, a valuable part of the existing machinery of society.” (Mill 1909, V.10.32) Far from a rejection or critique of existing economic arrangements, the right to strike is a permitted, even “valuable part,” of the way they function. As with the exercise of any basic right, the right to strike is limited by the requirement to respect every￾one else’s equal freedom to exercise their basic rights. Therefore, workers may not interfere in any coercive way with others’ exercise of their rights. As Mill put it, “It is, however, an indispensable condition of tolerating combinations, that they should be voluntary. No sever￾ity, necessary to the purpose, is too great to be employed against attempts to compel workmen to join a union, or take part in a strike by threats or violence. Mere moral compulsion, by the expression of opinion, the law ought not to interfere with; it belongs to more enlightened opin￾ion to restrain it, by rectifying the moral sentiments of the people.” (V.10.33) While strikes are acceptable ways for workers to pur￾sue their interests, their refusal to work must be un￾forced.Likewise, strikers may attempt to use moral sua￾sion or otherwise reason with employers and replace￾ment workers, but strikers may not coercively interfere with others’ personal or economic freedoms. One important feature of this classical liberal case is that it does not justify the right to strike by reference to any claim about economic injustice.22 The liberal case does not require us to think that there is some unfair limitation of workers’ freedom nor any other form of unfair disadvantage that workers face in the labor mar￾ket in the name of which they claim a right to strike. In some cases, the liberal case explicitly denies any such disadvantage exists (Shenfield 1986, 29–38). Instead, the classical liberal right to strike is derived from the conventional set of legally protected basic liberties—of contract and association—that are adequate to secure the justice of a regime. That is why the right to strike is also limited by the same non-interference conditions 22 There are those who ground the right to strike in freedom of asso￾ciation who do appeal to economic injustices (e.g., Gernigon, Odero, and Guido 1998; Leader 1992). As I discuss below, they are best seen as versions of the social democratic argument. as the basic liberties from which it is derived. Strikers must respect the fundamental rules of the market— such as freedom of contract and property rights—as well as the general legal order of which those rules are a part. That is why those who think about the right to strike from within a broadly classical liberal frame￾work tend to argue that legitimate strike activity must be strictly limited and regulated (Shenfield 1986, 9–28, 39–46; Hayek 2011, 384–404). It is not hard to see how this approach would re￾solve the dilemma with which this article opened. The right to strike would be subordinate to the basic lib￾erties from which it is derived. That means that strik￾ers would not be permitted to use any coercive strike tactics like sit-downs and mass pickets. Any such per￾mission would render this account of the right to strike incoherent or contradictory since it would permit vi￾olation of some of the basic liberties from which this right is derived. Much American labor law fits closely with the classical liberal view that workers may go on strike but they (a) may not interfere with the “core of entrepreneurial control”23 that is said to inhere in the basic property rights of owners and (b) may not in any way coerce strikebreakers/other workers. That is the prevailing legal rationale in the US for prohibiting mass pickets and sit-ins, as well as for permitting employers to hire permanent replacement workers during most strikes.24 A second and related limit of the liberal argument for the right to strike is that, to the degree it makes an argument for the right to strike, it tends to do so by arguing that, ideally speaking, we ought to enjoy free￾doms of association and contract. The right to strike is then derived from those rights. But workers already more or less enjoy those rights. Therefore, there is no significant disjunction between what they ought to be free to do and what they are already free to do, at least in the relevant area of economic activity. There are no grounds, then, for saying they should be permitted to do what they are not legally allowed to do—such as use co￾ercive strike tactics that might violate others’ freedom of contract or association. That is because, on the clas￾sical liberal view, the right to strike is just an expression of already existing, adequately instituted rights, rather than a moral right claimed against unjust limitations on workers’ freedom. There is no room on this view even to consider the right to strike as a right to resist oppres￾sion, let alone explain the shape of that right. The Social Democratic Theory On the social democratic view, unlike the liberal view, the right to strike is derived by recognizing an injustice in the capitalist economy. Even with a suitably estab￾lished welfare state, a social democrat will say there 23 See footnote 11. 24 Specifically, US law permits hiring permanent replacements work￾ers in all strikes except the narrow class of strikes that are against unfair labor practices. On this and other distinctively American con￾straints on the right to strike, see Atleson (1983, 67–96), Burns (2011, 47–136), Pope (2004), and White (2010, 2014). 911 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

Alex Gourevitch are still economic inequalities that put workers at an The Act's stated concern is that the"individual unor- unfair disadvantage in relation to employers.Workers ganized worker"cannot"exercise actual liberty of con- need labor rights,including a legally protected right to tract'”or enjoy“freedom of labor'”without bargain- strike,to enjoy real freedom of contract.That is be- ing rights,including striking or "concerted activities" cause,as individual workers,their bargaining power is (ibid.)The more famous National Labor Relations Act so weak,relative to large,powerful employers,that they of 1935,whose section 7 explicitly laid out a right to are practically subordinates rather than equal partners strike,opens with a reiteration of language similar to to the contract.Without the right to strike-and other Norris-Laguardia.Labor rights,including the right to rights to organize and bargain collectively-the dis- strike,are necessary because of"[t]he inequality of bar- tributive results of voluntary wage bargains would be gaining power between employees who do not possess op//s considered unfair. full freedom of association or actual liberty of con- The relevant bundle of labor rights corrects these in- tract and employers who are organized in the corpo- equalities by allowing workers to associate together. rate or other forms of ownership association"(ibid.) to effectively withhold their labor just as employers The great advantage of a right to strike,among other la- can withhold employment,and to use their collective bor rights,is its"restoring equality of bargaining power power to bargain reasonable contracts.Labor rights- between employer and employee"(ibid.)It should be together with background welfare rights-create a noted that these ideas are also compatible with liberal- kind of pure procedural justice.5 That is,they specify egalitarian theories of justice that,though not explicitly no precise distributive outcomes.Instead,they estab- 'social democratic,'hold that for labor markets to be lish the conditions for thinking that the wage bargains fair,workers must possess the bargaining power that whatever they happen to be,are the result of a fair labor rights,including an effective right to strike,pro- bargaining procedure.On this characterization,labor vide. rights broadly,and the properly regulated right to strike The advantage of the social democratic over the clas- in particular,are constitutive features of a just society. sical liberal position is that it recognizes a link between 4号元 Workers should be legally permitted to strike without the right to strike and economic injustice.The right to fear of being replaced,they should be permitted the strike protects an interest in non-exploitation in the use of certain tactics?6 and unions should be allowed & to force workers to join unions and go out on strike on owe bee bor oyu fear of losing membership and even the job.27 As such,the social democratic argument takes us some This social democratic argument is not just the think- way to explaining why the right to strike must include ing behind a few Scandinavian welfare states.It is a cen- some reasonable chance of success in striking.Absent tral part of international defenses of the right to strike that reasonable chance,the right would be a useless in- (Gernigon,Odero,and Guido 1998,11-6;Leader 1992 strument for increasing the bargaining power of work- 180-238).We can also find a version of it in the most ers.Therefore,any proper right to strike must include famous labor laws of the United States.Section 2 of not just permission for workers to use a range of tac- the Norris-Laguardia Act of 1932,one of the first major, tics,but.also and therefore,more legal restraints on federal acts of American labor law,8 says rights of property,managerial authority,and contract so as to secure the fair conditions for the exercise of Whereas under prevailing economic conditions,devel- this right.So,on the social democratic view,there is a oped with the aid of governmental authority for owners of potential double injustice that workers face.The first property to organize in the corporate and other forms of is the inequality of bargaining power of capitalist la- ownership association,the individual unorganized worker bor markets,the second is inadequate protection of la- is commonly helpless to exercise actual liberty of contract bor rights that they ought to enjoy or,what is nearly and to protect his freedom of labor,and thereby to obtain acceptable terms and conditions of employment,where the same thing,excessive legal prerogatives for capital fore...it is necessary that he have full freedom of associa- owners and managers.That is to say,failure to prop- tion,self-organization,and designation of representatives erly institute labor rights,wherever that failure exists, of his own choosing,to negotiate the terms and conditions constitutes its own,companion form of oppression be- of his employment..."(National Labor Relations Act 1935. cause workers are denied an important freedom that emphasis added. they ought to enjoy. There is one potentially confusing feature of the so- 25 On the concept of pure procedural justice.see Rawls(1999.74-6). cial democratic argument.As presented above,it is an eys I'd like to thank Lucas Stanczyk for suggesting this formulation to me. 29 Whether the right to strike is the "central"right for this view is 26 The question of which tactics,in particular,is often left implicit or debatable.A common thought among some social democrats is that unstated.The most coercive tactics,like mass picket and the sit-down, labor policy should create arbitration and negotiation mechanisms are rarely discussed explicitly as part or not of this right. for arriving at labor contracts without the social disruption of strikes. 27 On the argument that freedom of association is consistent with I put that consideration to one side since it is not directly relevant to forcing workers to join unions and to go on strike-within limits-see the discussion here.I also put aside the growth-based arguments of the important argument by Sheldon Leader(1992,121-238).Insofar labor rights,which were also a large part of the social democratic as Leader's argument is a version of a moral and theoretical argu- repertoire.Here the argument is that labor rights were good for ment for a legal right to strike,which would be part of a fair labor growth because increasing the worker wage packet increased aggre- morvamed ourt ijunei gate demand and,as such,worked against a crisis tendency in cap italism.For the purposes of this essay,the growth-promoting/crisis- strikes and other labor actions,and it banned "yellow-dog"contracts reducing effects of a right to strike are second order concerns. 912

Alex Gourevitch are still economic inequalities that put workers at an unfair disadvantage in relation to employers. Workers need labor rights, including a legally protected right to strike, to enjoy real freedom of contract. That is be￾cause, as individual workers, their bargaining power is so weak, relative to large, powerful employers, that they are practically subordinates rather than equal partners to the contract. Without the right to strike—and other rights to organize and bargain collectively—the dis￾tributive results of voluntary wage bargains would be considered unfair. The relevant bundle of labor rights corrects these in￾equalities by allowing workers to associate together, to effectively withhold their labor just as employers can withhold employment, and to use their collective power to bargain reasonable contracts. Labor rights— together with background welfare rights—create a kind of pure procedural justice.25 That is, they specify no precise distributive outcomes. Instead, they estab￾lish the conditions for thinking that the wage bargains, whatever they happen to be, are the result of a fair bargaining procedure. On this characterization, labor rights broadly, and the properly regulated right to strike in particular, are constitutive features of a just society. Workers should be legally permitted to strike without fear of being replaced, they should be permitted the use of certain tactics,26 and unions should be allowed to force workers to join unions and go out on strike on fear of losing membership and even the job.27 This social democratic argument is not just the think￾ing behind a few Scandinavian welfare states. It is a cen￾tral part of international defenses of the right to strike (Gernigon, Odero, and Guido 1998, 11–6; Leader 1992, 180–238). We can also find a version of it in the most famous labor laws of the United States. Section 2 of the Norris-Laguardia Act of 1932, one of the first major, federal acts of American labor law,28 says “Whereas under prevailing economic conditions, devel￾oped with the aid of governmental authority for owners of property to organize in the corporate and other forms of ownership association, the individual unorganized worker is commonly helpless to exercise actual liberty of contract and to protect his freedom of labor, and thereby to obtain acceptable terms and conditions of employment, where￾fore…it is necessary that he have full freedom of associa￾tion, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment…”(National Labor Relations Act 1935, emphasis added.) 25 On the concept of pure procedural justice, see Rawls (1999, 74–6). I’d like to thank Lucas Stanczyk for suggesting this formulation to me. 26 The question of which tactics, in particular, is often left implicit or unstated.The most coercive tactics,like mass picket and the sit-down, are rarely discussed explicitly as part or not of this right. 27 On the argument that freedom of association is consistent with forcing workers to join unions and to go on strike—within limits—see the important argument by Sheldon Leader (1992, 121–238). Insofar as Leader’s argument is a version of a moral and theoretical argu￾ment for a legal right to strike, which would be part of a fair labor law regime, he is quite similar to the social democratic position. 28 Its most well-known provisions banned court injunctions against strikes and other labor actions, and it banned "yellow-dog" contracts. The Act’s stated concern is that the “individual unor￾ganized worker” cannot “exercise actual liberty of con￾tract” or enjoy “freedom of labor” without bargain￾ing rights, including striking or “concerted activities” (ibid.) The more famous National Labor Relations Act of 1935, whose section 7 explicitly laid out a right to strike, opens with a reiteration of language similar to Norris-Laguardia. Labor rights, including the right to strike, are necessary because of “[t]he inequality of bar￾gaining power between employees who do not possess full freedom of association or actual liberty of con￾tract and employers who are organized in the corpo￾rate or other forms of ownership association” (ibid.). The great advantage of a right to strike, among other la￾bor rights, is its “restoring equality of bargaining power between employer and employee” (ibid.). It should be noted that these ideas are also compatible with liberal￾egalitarian theories of justice that, though not explicitly ‘social democratic,’ hold that for labor markets to be fair, workers must possess the bargaining power that labor rights, including an effective right to strike, pro￾vide. The advantage of the social democratic over the clas￾sical liberal position is that it recognizes a link between the right to strike and economic injustice. The right to strike protects an interest in non-exploitation in the labor market. It does so by ensuring that bargaining power between labor and capital is roughly equal.29 As such, the social democratic argument takes us some way to explaining why the right to strike must include some reasonable chance of success in striking. Absent that reasonable chance, the right would be a useless in￾strument for increasing the bargaining power of work￾ers. Therefore, any proper right to strike must include not just permission for workers to use a range of tac￾tics, but, also and therefore, more legal restraints on rights of property, managerial authority, and contract so as to secure the fair conditions for the exercise of this right. So, on the social democratic view, there is a potential double injustice that workers face. The first is the inequality of bargaining power of capitalist la￾bor markets, the second is inadequate protection of la￾bor rights that they ought to enjoy or, what is nearly the same thing, excessive legal prerogatives for capital owners and managers. That is to say, failure to prop￾erly institute labor rights, wherever that failure exists, constitutes its own, companion form of oppression be￾cause workers are denied an important freedom that they ought to enjoy. There is one potentially confusing feature of the so￾cial democratic argument. As presented above, it is an 29 Whether the right to strike is the "central" right for this view is debatable. A common thought among some social democrats is that labor policy should create arbitration and negotiation mechanisms for arriving at labor contracts without the social disruption of strikes. I put that consideration to one side since it is not directly relevant to the discussion here. I also put aside the growth-based arguments of labor rights, which were also a large part of the social democratic repertoire. Here the argument is that labor rights were good for growth because increasing the worker wage packet increased aggre￾gate demand and, as such, worked against a crisis tendency in cap￾italism. For the purposes of this essay, the growth-promoting/crisis￾reducing effects of a right to strike are second order concerns. 912 Downloaded from https://www.cambridge.org/core. 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The Right to Strike argument for why workers ought to enjoy a right to ties in who is forced to work and who exercises con- strike and,at least implicitly,an argument for what trol over the workplace.The primary social democratic that right to strike would look like in an adequately claim.instead.is that the central distributive injustice to social democratic society.But,on the best versions of which labor rights respond lies in the unequal bargain- the social democratic view,that is a moral argument ing position of workers when it comes to hours.ben- for why workers should have a legal right to strike and efits,and wages.That leaves aspects of both structural what that legal right would look like.It is not an ar- and interpersonal oppression in the workplace either gument that workers under conditions of oppression insufficiently modified or undertheorized as sources would have the same right to strike.Instead,the afore- of complaint.As a consequence,the scope of strikes mentioned version of the social democratic argument is implicitly limited because those forms oppression for labor rights is part of an overall theory of when aren't taken as objects against which strikes might legit- to count a socioeconomic order as oppressive.In that imately be directed.It looks like the main point of un- sense,the social democratic argument is compatible lawful and coercive strikes is to try to claim labor rights. with a version of the radical right to strike.When work- like the right to strike,as a legal right.The central polit- ers lack (social democratic)labor rights and/or when ical purpose of strikes will be constrained.The private their bargaining conditions are unfair,then they are monopolization of wealth,the unequal distribution of justified in using a range of strike tactics,potentially in- coercive work obligations,and the hierarchical organi- cluding some that would not be permissible in an ideal zation of the workplace are all consistent with the so social democratic regime,to resist that oppression. cial democratic view.This will lead the social democrat Notably,some figures historically associated with so- to argue that certain kinds of strikes,say industry-wide cial democracy have made versions of that argument strikes or political strikes against certain distribution Social democrats in the United States have claimed policies or strikes over workplace control are outside Samuel Gompers,John Lewis,even Eugene Debs for the legitimate scope of permitted strikes-a view re- their tradition,while in Europe social democrats will flected in the labor law of some actual social democ- 4r元 draw on a long line of thinking originating with fig- racies.31 On the radical view,however,the sources of ures like Eduard Bernstein and Karl Kautsky.30 In their oppression are more extensive and inter-related in a time,those figures defended enormously disruptive,co- class society,which is why the right to strike has a wider & ercive,and illegal strikes as a response to the actual scope.This substantive difference about what counts as injustices of their times,while arguing that workers class oppression explains the fundamental division be- should enjoy robust labor rights including a legally pro- tween social democrats and radicals:the radicals prop- tected right to strike.Whether each of these individ- erly identify the full scope of what is oppressive in actu- uals is properly understood as a 'social democrat'as ally existing.class-divided societies.This will inevitably opposed to,say,a 'socialist,'is less relevant than the lead to differences in political judgment about the ac- basic point.The best version of the social democratic ceptable range of strike tactics and situations in which argument for a right to strike is two-pronged.Primarily, it is appropriate to exercise the right to strike. it is a moral argument for why workers ought to en- joy a legal right to strike as part of the fundamental economic liberties of the ideal constitution.But,sec- The Radical View:The Right to Resist ondarily,the social democratic argument is compatible Oppression with the radical right to strike because it recognizes the The radical view has a number of advantages over the strike as a permissible way of claiming rights and re- 8 liberal and social democratic accounts.First and fore- sisting economic injustice.To the degree workers are most,it is a more adequate response to the facts of op- denied their rights and face economic injustice,a social pression in actually existing liberal economies.Where democrat could say,they enjoy a right to strike whose the liberal view recognizes no particular injustice,and shape would not be determined by the shape of the the social democratic view focuses primarily on in- right to strike they should ideally enjoy but,instead,by equalities of bargaining power,the radical view is based the fact that they have a right to resist oppression. on the social analysis sketched in the second section of As far as it goes,then,there is a family resemblance this article.That social analysis identifies the full range between the social democratic and the radical right of oppressions,and their interlocking character,that to strike.The two versions will overlap when social are typical of actually existing class-divided liberal so- democrats,in virtue of their conception of economic cieties.That is why I call this view radical:not for the justice,have reason to argue that workers enjoy a right sectarian frisson sometimes associated with that word to strike that is best understood as a right to resist but because radical means going to the root of a prob- oppression.However,the views come apart with re- lem. spect to the nature and scope of the relevant oppres- Second.the radical view goes to the root not just sion.After all,on the social democratic view,one can because it properly identifies all of the relevant facts. secure distributive justice without correcting the ba- but because it thereby more accurately identifies the sic class structure of actual societies and,in particu- kind of interest that the right to strike is supposed to lar,without fundamentally challenging the inequali- There is no room here to go into the details,but one example is 30 I thank a reviewer for insisting that I address this point. Sweden (Malmberg and Johannson 2014,525-536). 913

The Right to Strike argument for why workers ought to enjoy a right to strike and, at least implicitly, an argument for what that right to strike would look like in an adequately social democratic society. But, on the best versions of the social democratic view, that is a moral argument for why workers should have a legal right to strike and what that legal right would look like. It is not an ar￾gument that workers under conditions of oppression would have the same right to strike. Instead, the afore￾mentioned version of the social democratic argument for labor rights is part of an overall theory of when to count a socioeconomic order as oppressive. In that sense, the social democratic argument is compatible with a version of the radical right to strike.When work￾ers lack (social democratic) labor rights and/or when their bargaining conditions are unfair, then they are justified in using a range of strike tactics, potentially in￾cluding some that would not be permissible in an ideal social democratic regime, to resist that oppression. Notably, some figures historically associated with so￾cial democracy have made versions of that argument. Social democrats in the United States have claimed Samuel Gompers, John Lewis, even Eugene Debs for their tradition, while in Europe social democrats will draw on a long line of thinking originating with fig￾ures like Eduard Bernstein and Karl Kautsky.30 In their time, those figures defended enormously disruptive, co￾ercive, and illegal strikes as a response to the actual injustices of their times, while arguing that workers should enjoy robust labor rights including a legally pro￾tected right to strike. Whether each of these individ￾uals is properly understood as a ‘social democrat’ as opposed to, say, a ‘socialist,’ is less relevant than the basic point. The best version of the social democratic argument for a right to strike is two-pronged. Primarily, it is a moral argument for why workers ought to en￾joy a legal right to strike as part of the fundamental economic liberties of the ideal constitution. But, sec￾ondarily, the social democratic argument is compatible with the radical right to strike because it recognizes the strike as a permissible way of claiming rights and re￾sisting economic injustice. To the degree workers are denied their rights and face economic injustice, a social democrat could say, they enjoy a right to strike whose shape would not be determined by the shape of the right to strike they should ideally enjoy but, instead, by the fact that they have a right to resist oppression. As far as it goes, then, there is a family resemblance between the social democratic and the radical right to strike. The two versions will overlap when social democrats, in virtue of their conception of economic justice, have reason to argue that workers enjoy a right to strike that is best understood as a right to resist oppression. However, the views come apart with re￾spect to the nature and scope of the relevant oppres￾sion. After all, on the social democratic view, one can secure distributive justice without correcting the ba￾sic class structure of actual societies and, in particu￾lar, without fundamentally challenging the inequali- 30 I thank a reviewer for insisting that I address this point. ties in who is forced to work and who exercises con￾trol over the workplace. The primary social democratic claim,instead,is that the central distributive injustice to which labor rights respond lies in the unequal bargain￾ing position of workers when it comes to hours, ben￾efits, and wages. That leaves aspects of both structural and interpersonal oppression in the workplace either insufficiently modified or undertheorized as sources of complaint. As a consequence, the scope of strikes is implicitly limited because those forms oppression aren’t taken as objects against which strikes might legit￾imately be directed. It looks like the main point of un￾lawful and coercive strikes is to try to claim labor rights, like the right to strike, as a legal right. The central polit￾ical purpose of strikes will be constrained. The private monopolization of wealth, the unequal distribution of coercive work obligations, and the hierarchical organi￾zation of the workplace are all consistent with the so￾cial democratic view. This will lead the social democrat to argue that certain kinds of strikes, say industry-wide strikes or political strikes against certain distribution policies or strikes over workplace control are outside the legitimate scope of permitted strikes—a view re￾flected in the labor law of some actual social democ￾racies.31 On the radical view, however, the sources of oppression are more extensive and inter-related in a class society, which is why the right to strike has a wider scope. This substantive difference about what counts as class oppression explains the fundamental division be￾tween social democrats and radicals: the radicals prop￾erly identify the full scope of what is oppressive in actu￾ally existing, class-divided societies. This will inevitably lead to differences in political judgment about the ac￾ceptable range of strike tactics and situations in which it is appropriate to exercise the right to strike. The Radical View: The Right to Resist Oppression The radical view has a number of advantages over the liberal and social democratic accounts. First and fore￾most, it is a more adequate response to the facts of op￾pression in actually existing liberal economies. Where the liberal view recognizes no particular injustice, and the social democratic view focuses primarily on in￾equalities of bargaining power, the radical view is based on the social analysis sketched in the second section of this article. That social analysis identifies the full range of oppressions, and their interlocking character, that are typical of actually existing class-divided liberal so￾cieties. That is why I call this view radical: not for the sectarian frisson sometimes associated with that word but because radical means going to the root of a prob￾lem. Second, the radical view goes to the root not just because it properly identifies all of the relevant facts, but because it thereby more accurately identifies the kind of interest that the right to strike is supposed to 31 There is no room here to go into the details, but one example is Sweden (Malmberg and Johannson 2014, 525–536). 913 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321

Alex Gourevitch protect.It identifies the guiding interest of the right oppression.That the right comprises permissions to use not as an interest (only)in creating fair contracts or in some effective means is a defining feature of the radical distributive justice narrowly conceived but,rather,as argument.After all,for the right to strike to protect the an interest in claiming freedom against its illegitimate interest that justifies it,it must be shaped in ways that limitation.Workers have an interest in not facing cer- permit the right's exercise in ways that actually pro tain kinds of coercive restraints against their access to tect that interest.That follows directly from the liberty- property,in not being subject to unfair ways of forcing based justification of the right.So.on this account,there them to work,in not being required to accept various would be no strict prohibition on the use of coercive kinds of labor contracts,and in not being dominated strike tactics like sit-downs and mass pickets.3 in the workplace.These are elements of the same in- A fourth virtue of the radical approach follows from terest that workers have in self-determination,or in the third.If the radical right to strike does not contain enjoying those liberties that allow them to have the internal to its justification,the same restraints on the personal and political autonomy they ought to.This is means strikers may use,there is still the question of the full sense in which the radical view is more respon- why the right to strike would have moral priority over sive to the facts of oppression than other accounts.This other basic liberties in the case of labor disputes.On further means that the radical argument is compatible the radical view.the important point is not just that with,or at least in the neighborhood of,any number there is economic oppression but that the economic op- of egalitarian theories of justice-such as those argu- pression that workers faced is in part created and sus- ing for property-owning democracy or for workplace tained by the legal articulation and protection of those democracy and free time32-that are concerned with basic economic and civil liberties.Workers find them- these wider forms of unfreedom.It is,for the same rea selves oppressed because of the way property rights. son,compatible with a wide range of socialist and other contractual liberties,corporate authority,tax and la- left-wing criticisms of power and unfreedom in capital- bor law create and maintain that oppression.If that is ist workplaces(e.g.,Arnold 2017;Ezorsky 2007;Weeks the case,then the normal justification of those liberties 2011). which is supposed to establish their basicness'and thus The third virtue of the radical approach is that it priority is weak.Their priority is normally explained gives a distinct explanation for the shape of the right to by the thought that,ideally speaking,the protection strike.Recall that the liberal and the social democratic of those liberties creates more or less non-oppressive, approaches can have a tendency to explain the shape of non-exploitative relations of social cooperation.34 In that right by reference either to(a)the basic liberties of reality,their legal protection achieves the opposite actual liberal societies,or(b)the liberties one enjoys in Meanwhile,the right to strike,as a way of reducing an ideal constitution,or (c)through a mixture of both that oppression has a stronger claim to be protecting a arguments.That form of reasoning imparts a particu- zone of activity that actually serves the aims of justice lar shape to the right:it must respect the basic liberties itself-of coercing people into relations of less oppres- with which it comes in conflict.On the best version of sive social cooperation.That is why the right to strike the social democratic view,that methodological error is would have priority over some of these basic economic avoided.But it is present in any version of the argument and civil liberties,like property rights,freedom of con- in which the shape of the legal right to strike one ought tract,and freedom of association. S5.501g to enjoy is the same as or similar to the right workers For the foregoing reasons,we can see why the right to exercise when suffering economic injustice.But on the strike as a right to resist oppression resolves the open- right to resist oppression view,the shape of the right ing dilemma in a forceful and distinctive way.Work- is explained exclusively by reference to the liberty in- ers may use coercive strike tactics,like sit-downs and terest it is supposed to protect under conditions of op- mass pickets,because those are necessary means for pression.The right is justified instrumentally,by ref- erence to the fact that strikes are generally effective means for resisting the oppression to which workers 33 Perhaps other tactics would also be ex ante permitted,like sabo- are subject.And,further,the right is justified by ref- tage,intimidation of replacements,or boss-napping.Those are more controversial because they are closer to violence,rather than just co- erence to the interest workers have in using their own ercive interference of others'basic liberties.So I bracket them for collective power to reduce and resist that oppression. now because they are unnecessary to the argument.But they would Under conditions of oppression,that use of collective need to be considered downstream. power is one of the primary ways workers can give ex- 34 It could be argued that these basic liberties could be entrenched pression to the demand for self-determination.But that in a non-oppressive way.Therefore,they have moral priority in the aspect of the justification also depends upon strikes be- sense that.under those non-oppressive conditions,workers would be required to respect the law.I cannot say here fully why I doubt ing generally effective means for resisting oppression that line.Briefly,I think we would be speaking about such different since otherwise they would just be collective acts of conceptions of the basic economic liberties,their interrelationships and their institutional role in creating a non-class-based system of self-delusion or symbolic gestures of resistance but not economic cooperation,that it would be a mistake to call these the acts self-determination.For that to be the case,the right same basic economic liberties.That aside,for the purposes of this ar- L to strike must include the use of at least some of the ticle,the urgent point is that all known institutional interpretations of means that make strikes effective for those subject to those basic economic liberties produces the class-based oppression against which the right to strike is claimed and,in that context,the right to strike does enjoy moral priority,both to the basic liberties and There is a very large literature here,but to cite just a few:Stanczyk the various legal iterations of them.I thank a reviewer for pressing 2012;Anderson 2017:Rose 2016;O'Neill and Williamson 2012. me on this point. 914

Alex Gourevitch protect. It identifies the guiding interest of the right not as an interest (only) in creating fair contracts or in distributive justice narrowly conceived but, rather, as an interest in claiming freedom against its illegitimate limitation. Workers have an interest in not facing cer￾tain kinds of coercive restraints against their access to property, in not being subject to unfair ways of forcing them to work, in not being required to accept various kinds of labor contracts, and in not being dominated in the workplace. These are elements of the same in￾terest that workers have in self-determination, or in enjoying those liberties that allow them to have the personal and political autonomy they ought to. This is the full sense in which the radical view is more respon￾sive to the facts of oppression than other accounts. This further means that the radical argument is compatible with, or at least in the neighborhood of, any number of egalitarian theories of justice—such as those argu￾ing for property-owning democracy or for workplace democracy and free time32—that are concerned with these wider forms of unfreedom. It is, for the same rea￾son, compatible with a wide range of socialist and other left-wing criticisms of power and unfreedom in capital￾ist workplaces (e.g., Arnold 2017; Ezorsky 2007;Weeks 2011). The third virtue of the radical approach is that it gives a distinct explanation for the shape of the right to strike. Recall that the liberal and the social democratic approaches can have a tendency to explain the shape of that right by reference either to (a) the basic liberties of actual liberal societies, or (b) the liberties one enjoys in an ideal constitution, or (c) through a mixture of both arguments. That form of reasoning imparts a particu￾lar shape to the right: it must respect the basic liberties with which it comes in conflict. On the best version of the social democratic view, that methodological error is avoided.But it is present in any version of the argument in which the shape of the legal right to strike one ought to enjoy is the same as or similar to the right workers exercise when suffering economic injustice. But on the right to resist oppression view, the shape of the right is explained exclusively by reference to the liberty in￾terest it is supposed to protect under conditions of op￾pression. The right is justified instrumentally, by ref￾erence to the fact that strikes are generally effective means for resisting the oppression to which workers are subject. And, further, the right is justified by ref￾erence to the interest workers have in using their own collective power to reduce and resist that oppression. Under conditions of oppression, that use of collective power is one of the primary ways workers can give ex￾pression to the demand for self-determination.But that aspect of the justification also depends upon strikes be￾ing generally effective means for resisting oppression, since otherwise they would just be collective acts of self-delusion or symbolic gestures of resistance but not acts self-determination.For that to be the case, the right to strike must include the use of at least some of the means that make strikes effective for those subject to 32 There is a very large literature here, but to cite just a few: Stanczyk 2012; Anderson 2017; Rose 2016; O’Neill and Williamson 2012. oppression.That the right comprises permissions to use some effective means is a defining feature of the radical argument. After all, for the right to strike to protect the interest that justifies it, it must be shaped in ways that permit the right’s exercise in ways that actually pro￾tect that interest. That follows directly from the liberty￾based justification of the right. So, on this account, there would be no strict prohibition on the use of coercive strike tactics like sit-downs and mass pickets.33 A fourth virtue of the radical approach follows from the third. If the radical right to strike does not contain, internal to its justification, the same restraints on the means strikers may use, there is still the question of why the right to strike would have moral priority over other basic liberties in the case of labor disputes. On the radical view, the important point is not just that there is economic oppression but that the economic op￾pression that workers faced is in part created and sus￾tained by the legal articulation and protection of those basic economic and civil liberties. Workers find them￾selves oppressed because of the way property rights, contractual liberties, corporate authority, tax and la￾bor law create and maintain that oppression. If that is the case, then the normal justification of those liberties, which is supposed to establish their ‘basicness’ and thus priority is weak. Their priority is normally explained by the thought that, ideally speaking, the protection of those liberties creates more or less non-oppressive, non-exploitative relations of social cooperation.34 In reality, their legal protection achieves the opposite. Meanwhile, the right to strike, as a way of reducing that oppression has a stronger claim to be protecting a zone of activity that actually serves the aims of justice itself—of coercing people into relations of less oppres￾sive social cooperation. That is why the right to strike would have priority over some of these basic economic and civil liberties, like property rights, freedom of con￾tract, and freedom of association. For the foregoing reasons,we can see why the right to strike as a right to resist oppression resolves the open￾ing dilemma in a forceful and distinctive way. Work￾ers may use coercive strike tactics, like sit-downs and mass pickets, because those are necessary means for 33 Perhaps other tactics would also be ex ante permitted, like sabo￾tage, intimidation of replacements, or boss-napping. Those are more controversial because they are closer to violence, rather than just co￾ercive interference of others’ basic liberties. So I bracket them for now because they are unnecessary to the argument. But they would need to be considered downstream. 34 It could be argued that these basic liberties could be entrenched in a non-oppressive way. Therefore, they have moral priority in the sense that, under those non-oppressive conditions, workers would be required to respect the law. I cannot say here fully why I doubt that line. Briefly, I think we would be speaking about such different conceptions of the basic economic liberties, their interrelationships, and their institutional role in creating a non-class-based system of economic cooperation, that it would be a mistake to call these the same basic economic liberties. That aside, for the purposes of this ar￾ticle, the urgent point is that all known institutional interpretations of those basic economic liberties produces the class-based oppression against which the right to strike is claimed and, in that context, the right to strike does enjoy moral priority, both to the basic liberties and the various legal iterations of them. I thank a reviewer for pressing me on this point. 914 Downloaded from https://www.cambridge.org/core. Shanghai JiaoTong University, on 26 Oct 2018 at 03:53:05, subject to the Cambridge Core terms of use, available at https://www.cambridge.org/core/terms. https://doi.org/10.1017/S0003055418000321