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. 912Alex 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. 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