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Work and Natural Rights Print E-mail
By Hadley Arkes   
Tuesday, 30 August 2011

Winston Churchill was brought back resoundingly to power in the General Election of 1950, and he remarked on the conceit of the opposing party in appropriating the name “Labour”: For “they are not the only ones who work in this country.”

As we approach Labor Day, it seems curious that the day has come to celebrate the place and strength of labor unions. In recent years, unions have been disappearing from manufacturing and private industry; they have held on and grown mainly with jobs in the government, sustained by their political clout. By 2010, the union membership in government had come to exceed the membership in private industry (7.6 million, as against 7.1 million employees). But what is more curious is the way in which the “rights of workers” have been identified with the rights of unions –and radically detached, then, from the understanding of the “natural right” to work. 

That understanding was put forth with a rare clarity and force by political authority with – of all things – a proclamation by Louis XVI in 1776. The king’s edict was drafted by Anne-Robert-Jacques Turgot, the estimable minister of finance and a prime defender of a liberal order in the economy and the polity. The purpose of the edict was to break the special privileges of guilds, trading companies, and other monopolies, including the government itself, in controlling access to employment.

The edict would explicitly reject the premise that the means of making a living are the property, presumptively, of the state. These schemes of regulation brought their advantages for the privileged, but this “illusion” of benefits, said the monarch, concealed “the infraction of natural right.” He rejected the notion that “the right to work was a royal privilege which the king might sell, and that his subjects were bound to purchase from him”: 

God in giving to man wants and desires rendering labor necessary for their satisfaction, conferred the right to labor upon all men, and this property is the first, most sacred, and imprescriptible of all.

A little more than a century later, Leo XIII would fill out the moral grounding of that understanding in Rerum Navarum (1891). The Holy Father warned against socialist schemes that would do away with private property, so that “individual possessions should become the property of all, to be administered by the state.”  The working man himself, he said, would be among “the first to suffer.”


         Not listening to Leo.

The rejection of private property as a right would remove the ground on which the worker claims the fruits of his work distinctly as his own. “For every man has by nature the right to possess property as his own”: 

Socialists, therefore, by endeavoring to transfer the possessions of individuals to the community at large, strike at the interests of every wage-earner, since they would deprive him of the liberty of disposing of his wages, and thereby of all hope and possibility of increasing his resources and of bettering his condition in life.

Unions, along with other associations, could bring the benefits of solidarity joined with love and charity, as members help one another in many ways.  But it was quite another matter when unions use their power to deny, to ordinary people, legitimate work they were willing to do. 

Several years ago some enterprising New Yorkers brought forth a gypsy cab service, which would take people safely from their subway stops to their homes, for about $1. That useful service had to be shut down because it collided with the monopoly powers of the transit workers. And more recently, we have had the National Labor Relations Board, tilted toward the unions, resisting the freedom of Boeing to shift some operations to South Carolina, because the 4,000 jobs created there would be in a “right to work,” or a non-union, state.

Strangely lost from memory here is the fact that the first opposition to unions in the courts came from the judges who had come out of the anti-slavery moment. Justice John Harlan, the great dissenter in Plessy v. Ferguson on racial segregation, put the argument on unions most clearly in the case of Adair v. U.S. (1908). The anti-slavery movement confirmed that the individual person was the owner of his own labor. He was not obliged to give justifications when he walked away from the employ of any man.

But the employer was no less a natural man than the worker. If a worker wished to join a union, that right was implicit in his standing as a free man. So too was his right to refuse to work at a place that would not confine its hiring only to members of his union. But the employer had precisely the same right to free association, including the right to refuse a relation with a union of that kind, for it barred his own freedom of association, including his freedom to employ people of his own choosing quite willing to work for him.

That these arguments seem to come as news to so many people may simply reflect the fact that our lives have been woven in now with a system of “rights” and franchises and licensing conferred by the laws. And as we become accustomed to them, we may no longer have the same vivid sense of a right to work that finds its moral ground in the natural law. 

 

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.

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Comments (6)Add Comment
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written by Ray Hunkins, August 30, 2011
A valuable tutorial Proffesor Arkes. Thank you. And,I might add that prosperity presently seems most evident and most assured in "Right to Work" states.
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written by jsmitty, August 30, 2011
Dr. Arkes,

You are correct that labor unions sometimes interfere with the right to work as a means of keeping wages artificially high. And you are correct in your insinuation that sometimes labor unions have excluded blacks in the past. But let's be consistent here. This problem you point to is hardly limited to labor unions.

If a group of dentists get together to form a group, we call this group a "professional association" rather than a labor union. But if this group then goes to lobby the state government to prevent dental hygienists from cleaning teeth independently of dentists--with the result that dentists block cheaper competition from hygienists for the teeth cleaning market, this has exactly the same effect on the welfare of consumers and hygienists as labor unions do...but critics of unions utter not a peep of protest. (pssst....don't tell anyone but usually dentists are good Republicans!!!)

When people are prevented from becoming massage therapists, manicurists, barbers, school teachers, appraisers etc. etc. not because they can't do the basic job functions but because they lack the heavy state mandated occupational requirements--which are designed solely to keep upstart competitors out of the field--this has the same effect as closed shops at unionized plants do...but critics of unions never come around to criticizing the fact that all these professions have obtained these privileges and barriers to entry through the same rent seeking that unions use. Conservatives want to convince themselves that these groups are the "entrepeneurial class." But they play the same game that unions do!!!

And College Professors---how many of them through the state run accreditation cartels have protected their tenure and bloated salaries from cheaper grad students who all could perform the basic teaching functions they do at a fraction of the cost to students??? Sorry, but in no open market would it take seven to ten years to train a graduate student to teach liberal arts courses to sophomores. We don't call the academic cartel of the tenured professoriate a "labor union" but it functions exactly the same way as the New York city transit workers or what have you. Low cost workers are kept out the field or made to toil for years at subsistence wages until they get their union card or get the brass ring of tenure.

So I don't begrudge you your opinion of labor unions, Dr. Arkes. And I don't even disagree. But let's please be consistent here!!! Our economy is rife with the kind of injustices you pin on unions.
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written by Hadley Arkes, August 30, 2011
I thank Mr. Smitty for writing, for he was elaborating the point I was alluding to when I mentioned schemes of "licensing" and the action of "guilds." It may be one thing to establish tests of competence. But we find tests for admission to different professions and vocations, with the tests made harder for the sake of limiting the supply of practitioners and keeping up the incomes of those already in the field. And of course we don't know what moral principles can establish for us the right price for a pair of pants--or the right income for beauticians, accountants, optometrists,lawyers. Mr. Smitty was quite right but he was filling the point I didn't have the space to fill out.
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written by Duke, August 31, 2011
To elaborate on Smitty's comment, Milton Friedman many years ago distinguished between state licensure and private certification. While licensure uses the power of the state to restrict supply and raise prices, certification by private groups provides information to consumers while allowing the excluded to provide the service. The right to judge qualifications is left in the hands of consumers. The situation at all levels of education is best solved by either a voucher system or simply abolishing any govt role in education. It is the power of the state that is the problem in both cases - given human nature, it is inevitable that people will exploit govt power in their own interests.
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written by Deacon Jim Stagg, August 31, 2011
Would someone please send a copy of this excellent article to the NLRB?
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written by Arnaud, September 01, 2011
I read this article with great interest - but I have a linguistic comments to offer.
Where Louis XVI's minister Turgot, is described as "prime defender of a liberal order", an English reader may get the wrong impression. The author most certainly meant to say prime defender of a “liberal order (liberal in the classical sense) etc…
That description comes probably from a French source, and if so, but it begs for clarification. In French, the term liberal is always used in the sense suggesting liberty (as in freedom of enterprise), without any leftist connotation. Given the general sense of the text, it's fair to assume that Turgot was on such character, fighting statist dictate (that sounds familiar). Because “Liberals” tend to embrace bureaucratic / legal solutions, statism, I think that Turgot is a classical liberal, not a liberal.

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