Work and Natural Rights Print
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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