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). 911The 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