Friday, March 13, 2009

Unions and liberty.

0. This may be a little disjointed, but here goes. I've suggested in several different fora over the past few months that the existence of unions ties pretty closely with political liberty and human autonomy. Here's the argument to that effect, at leastg in sketch, which also entertains ideas about action, social institutions, and the role of government.

1. Everyone accepts that, politically, humans should be free to choose their employment and, indeed, whether or not they are employed at all. This seems to be part and parcel of autonomy: if it means anything to be able to legislate for oneself, then it follows that one can choose how to govern one's employed life. This implies, then, that one is free to not work except under a union contract.

2. Similarly, everyone accepts that, politically, humans should be free to choose their associations and, indeed, whether they associate with anyone else at all. Again, it seems to follow from autonomy: if it means anything to be able to legislate for oneself, then it follows that one can choose how to govern one's interpersonal life. This implies, though, that one is free to form a union or similar organization with other people.

3. And, everyone accepts that, politically, humans should be free to request and demand that others respect the above decisions. One more time, it seems to follow from autonomy. From this and the above two points, it follows that humans are politically and morally (because of autonomy) free to withdraw their labour as they choose in order to obtain this respect.

*4. [Aside: I'm not sure if there's an equivocation on "respect" here.]

5. Thus, the existence of unions and the practice of striking is not only consistent with but follows from political liberty and moral autonomy.

6. Of course, there are objections. Let me deal with some popular ones.

7. Objection the first: Don't employers have freedoms and autonomy, too? So, shouldn't we also recognize that employers have the right to hire scabs, try to break unions, and so on?

8. Reply the first: The employers' freedoms are entirely negative, and the employees' freedoms are positive.

9. The distinction between positive and negative freedom, at least in those terms, is made by Isaiah Berlin in "Two Concepts of Liberty" (widely anthologized and reprinted; the easiest place to find it is in Berlin's Four Essays on Liberty (1969); it may also be available in full-text online). But the distinction, as Berlin acknowledges, stretches back much further.

10. Negative liberty is freedom from: the lack of restraint or constraint in one's actions. This, I think, derives from a very Enlightenment view of human action, whereby actions emanate from a singular faculty (will) responsible for directing the body, a faculty at times opposed, at others assisted, by another singular faculty (reason) responsible for directing the mind. If action is no more than the functioning of a single faculty, then it seems to follow that the only sense in which action can be free is in the sense of being unrestrained: as the will can make the body do as it is willed to do, so the person is free.

11. Positive liberty is freedom to: the capacity or ability to do what one wishes to do. This, I think, derives from an ancient (you can find it in Aristotle, and to some extent, IIRC, Epicurus) view of human action, whereby actions emanate from a complex interaction between various functioning parts of the human psyche (usually, "soul", but "animating force or principle" is probably closer). If action is more than the functioning of a single faculty, but actually results from various competing impulses and directives within the mind/self/what have you, then it seems to follow that we do need a more robust sense of freedom of action: the sense of having the ability to do what a greater (e.g., more rational) part of one's nature is encouraging one to do.

*12. [Aside: This is speculative, but I think can be given better grounding.]

13. So, unless we want to accept seriously the Enlightenment conception of action, we need to incorporate positive freedom into our political perspectives. But, as soon as we do that, we must acknowledge that positive freedom is prior to negative freedom. This is because negative freedom is the lack of constraint or restraint; that is, the absence of impediment in doing as one wills. Positive freedom makes the will able to be governed by the (rational) self, rather than, say, prejudice or biological imperative. So, positive freedom creates the will which can then be negatively free or unfree.

14. This applies to the freedoms of employers in the following way. The employees' freedom to choose the terms of their employment, to associate with each other, to request and demand recognition of their associations, and to withdraw their labour are all instances of positive freedom, of the capacity to determine what goals one wishes to pursue, and to govern oneself by (practical) reason. The employers' freedom to employ scabs and break unions is a negative freedom, instances of a lack of restraint. Since positive freedom is primary over negative freedom, it is legitimate (possibly required) to introduce restraint (limit negative freedom) when doing so will ensure the exercise of positive freedom.

*15. [Aside: I'm not sure that's as clear as it could be.]

16. Objection the second: This is not so. Negative freedom is the only reasonable political concept of freedom. As Berlin himself argued, positive freedom leads inexorably to tyranny, as governments will act to create new capacities and abilities through restricting and restraining negative freedom. This is a license for massive increase of government power.

17. Reply the second: Negative freedom is no barrier against government tyranny. Failing to create positive freedoms, through deliberately allowing higher capacities to atrophy and native prejudices to flourish, can also lead to a tyrannical government. Careful management of the natural capacities, rather than the cultivated social capacities, of humans is as sure a mechanism for massive government power as is the management of the cultivated social capacities themselves. In other words, the challenge of a too involved government is met on the other side by the at least equal challenge of the tyranny of the idiotic majority.

18. Fundamentally, the objection is based on a misunderstanding of the role freedom plays in preventing tyrannical government. Freedom is never a bulwark all on its own, either positive or negative. It is the expanse of freedom that prevents tyranny. The freer the people, in both the positive and negative sense, the less able the government is to exert itself in a tyrannical fashion. When faced with a populace that has significant positive freedom -- capacities such as the ability to form their own new associations (this includes not only unions but also political parties and activist groups, and even a new government and state) -- as well as significant negative freedom -- such as constitutional limits on the power of government to impose restraints -- government is kept in service to the needs of the people, rather than people serving the government.

*19. [Aside: I sound almost libertarian here. I've never been entirely comfortable with the "socialist" label; I use it only because it's closest to my view, not because I buy every tenet that has been dubbed "socialism" in the past. "Libertarian socialist" sounds like a contradiction, and also focuses heavily on negative rather than positive freedom. Elitist liberal socialism? At a certain point, names give out and you have to roll up your sleeves and come to terms with the underlying view.]

20. Of course, it's important to note that there is no true proof against tyranny. Plato, in Republic, carefully describes the degeneration of the state: his decomposition goes from enlightened aristocracy to honour-loving military dictatorship to minority-dominated plutocracy to mob-like democracy to ruthless tyranny. We can argue with the details, but the overall lesson is, I think, sound. Everything that is born will end; everything that grows will decay. We shouldn't expect that any society is immune to degradation towards tyranny. What this illustrates, though, is the importance of careful stewardship of a free society to ensure that its tyrannical tendencies are eliminated or turned aside as they develop. (The advantage to social institutions unlike biological ones is that reversing the decay is well within our potential power.)

21. Objection the third: Okay, fine. But employers have a positive freedom, too, don't they? After all, employers are autonomous people and, by your argument to this point, positive freedoms like autonomy should be encouraged.

22. Response the third: This is true, but there is an important omission here. As employers have autonomy, so too do their employees. It must be conceded, then, that the situation we are aiming for is maximal liberty compatible with an equal liberty for all. (This is a slight rephrasing of John Rawls' Liberty Principle.) Anything less than this is settling for a poorer social circumstance than we might otherwise have. Furthermore, any unequal distribution necessarily prefers the freedom of some individuals over the freedom of others; unless an argument is forthcoming as to why some individuals are better (and thus deserve better treatment), then liberty should extend as widely as it can.

23. So, take that on board. Given that, we have to accept that employers' positive freedom, if they have any, must be quite weak. It fails against the needs of children and their positive freedoms: we all accept that children can insist that their needs be provided for even if they are unwilling to labour to satisfy them themselves; indeed, we would think it wrong to force children to labour to satisfy their own needs. Similarly, the positive freedoms of workers associated with health and safety are widely considered to be more important than any freedoms of their employers; we do not allow employers the positive freedom to choose not to provide adequate safety equipment and training. This point can be expanded with more examples, but the idea is, I think, clear: we're already quite willing to say that employers have a limited capacity to exercise their autonomy. (Qua employer, of course.)

24. Furthermore, in my view, employers qua employers don't have positive freedoms. The objection here is founded on a category-mistake.

25. I'm not usually a fan of the notion of a category-mistake. As originally presented by Gilbert Ryle in The Concept of Mind (he may have published it elsewhere, but that's where I first saw it), a category-mistake is committed when one accidentally attributes to terms or concepts of one category properties which really belong to terms or concepts of another category. So, we might say that there is a right glove and a left glove, and the right glove is beside the left glove; or that there is a pair of gloves; but we would be mistaken to say that the pair of gloves is beside the left glove. (Assume there's two gloves, not four.) Ryle argues that category-mistakes litter the philosophy of mind, but I've never been clear exactly where he thinks the categories come from, nor why he thinks that they can't be shifted by argument.

26. That said, I think there's a category-mistake in play here. Employers are organizations that exist to provide employment opportunities for workers. That's their point. If we could come up with another way for people to support themselves within a society, we wouldn't need to have the institution of an employer any more. (Like we don't have the institution of town crier any more; it served a purpose at one point, but we have other means of serving the same purpose now. We may also soon cease to need the institution of mass media, as mass media institutions appear to be dying off, replaced by other entities.) So, the value of employers qua employers is entirely instrumental: it is only to serve the interests of workers (and the general public, but since the general public consists largely of workers, I think I can omit this detail).

27. Given that, employers don't have positive freedoms; they don't have freedom at all. They are an institution which serves an important purpose, but they are just a means to that end. If an alternative were to exist, then employers could safely cease to exist as well.

*28. [Aside: I'm sure some will try to suggest that employers serve some non-instrumental value. I'm not sure what the value would be. Wealth-generation is another instrumental value -- it serves the interests of society at large to have wealth created. So, I take this as a strong, if often unexpressed, claim: there is no point to having employers around except insofar as it makes things better for workers. Consider if employers should exist if they actively harmed workers.]

29. Objection the fourth: But, hang on, all this talk of "employers qua employers" misses something important. Employers are people! And people are supposed to have autonomy and positive freedom; isn't that what you've been arguing all along? So how can you say that employers, as people, don't get positive freedoms?

30. Reply the fourth: As people, employers have the same positive freedoms as employees. They can freely form associations -- corporations, for example -- in order to pursue profits, and can set various kinds of rules in place to generate even more profit. But it doesn't follow from the fact that employers as people have positive freedoms that employers as employers can do anything they like. Again, this looks like a category-mistake.

31. Furthermore, even if it isn't a category-mistake, it certainly overlooks the fact that all liberties and freedoms must exist together: the greatest liberty compatible with an equal liberty for all. If we extend employers as employers' positive freedoms, then we will inevitably be limiting the freedoms of workers as individuals. If we give employers as employers the ability to, say, hire scab workers, then they will be able to restrict the positive freedom of workers to demand that their associations and choices regarding employment be respected. I think examples here can be easily multiplied.

*32. [Aside: This point is empirically weak. I need something broader in terms of evidential support.]

33. Objection the fifth: I think we're overlooking an important group of people here, namely those who are caught within a strike or similar labour disruption, yet aren't the workers exercising their freedom to strike, nor the employers. What about them? Aren't their freedoms limited?

34. Reply the fifth: There is an impact on the freedoms of those caught up in a strike; I don't think that can reasonably be denied. The question is not whether that's justifiable -- it isn't -- but whether it's avoidable. If ought implies can (and it does), then lack of ability (not-can) implies lack of obligation (not-ought). If it's not possible to not harm others' freedoms, then labour cannot be obligated to do so.

35. Let me explain what I mean here. First, when a situation requires a strike, not striking will necessarily impact on freedom. Those who could strike will be limiting themselves, and I'm not persuaded that any such choice is ever legitimate. It's certainly not legitimate to sell oneself into slavery; although a slavery contract may be freely entered into, it is nonetheless not binding, as this is a choice one simply cannot make. (In a Kantian frame, one might argue there was a contradiction here: using freedom to give up the capacity to be free. Similarly, there is a contradiction in not using the freedom to associate in a labour union by not using the association to improve employment conditions.) So, it's not reasonable to expect unions to limit the freedoms of their members. Thus, it's not possible (in a limited sense of "possible") for unions not to strike, when striking is needed.

*36. [Aside: I note I don't say here what it means for a situation to require a strike. That seems to be a weakness.]

37. Second, another way of getting to the same point about what's reasonable ("possible" in a sense). The freedom of the few is equal to the freedom of the many. You can't count noses in order to determine who gets to exercise their freedom and who doesn't; doing so leads to a slave society. So, the size or extent of the impact of a strike is morally irrelevant. There's two reasons here. First, it would clearly be immoral for a majority group within a society to enforce its will on a minority group just because the majority group was bigger. Think of religious persecution here. Second, it would clearly be immoral for a minority group to insist that its will needs to dominate over the majority. After all, they are a minority group here; certain facets of their behaviour shouldn't be restrained, but others they cannot legitimately insist be recognized. Given that we don't think the majority should be able to impose on the minority, nor that the minority should be able to impose on the majority, I think we have to go back to the idea of maximum liberty compatible with equal liberty for all, and leave numbers out of it. Given that, it's not reasonable to expect that we can restrict some people's freedoms because we're worried about even more people.

*38. [Aside: Besides, would it really be okay for a union to strike as long as it was only affecting a minority group? Suppose a union of 7,000 strikes in a town of 9,000. By definition, then, only 2,000 people are caught by the strike who are not part of the union. Is that okay, where it wouldn't be if the town's population was 90,000? That seems like the beginnings of a reductio ad absurdum to my eye.]

39. If we want to blame someone for the plight of those caught in a strike, why don't we just look to whoever created the poor situation which caused the strike in the first place? That is, as we can't limit freedom by counting heads, and we can't reasonably expect people to limit their own freedom (and such self-limitation is probably not a rational choice), there is no blame to assign here except to whoever made the strike necessary. Often, this is government, in failing to ensure that employment conditions are reasonably and/or that the public sector is reasonably funded. Occasionally, it is employers and unions together, whose difficulties in bargaining have produced the problem. Sometimes, it is the ignorance and indifference of the general public, whose often bizarre misunderstandings of a collective bargaining situation allow governments to seriously limit freedom with impunity. (See 17 above.) And sometimes, it's a combination.

40. And sometimes, it's no one. That is, sometimes tragic dilemmas arise -- situations where all possible options are wrong, and yet some option must be chosen. It is a feature of our moral situation that it is inevitably tragic: conflicts will arise and leave us with only wrong options to choose between. Failing to appreciate that is simply naive.

41. Objection the sixth: But, but... there are always right answers!

42. Reply the sixth: In the fullness of time, an institution may work itself pure, and a set of institutions like a society may do so as well, thus asymptotically approaching a state where tragic moral dilemmas -- such as the impact on the public of a strike -- never occur. That is not the actual situation as it stands, though; and, it is only a hope at best.

43. The point generalizes, really. We may never have a Grand Unified Theory in physics, even though we aspire to one. We may never end the debates on free will or the sources of knowledge or the existence of God. This doesn't mean that these endeavours can't improve, just that they will never reach full purity and thus solution. Why should ethical and political questions, with their inherent difficulties, confusions, and complications be expected to work out any better?

44. In sum, everyone has positive and negative freedoms. Unions and employers exist following from those freedoms. (The former is nothing more than the exercise of positive freedoms by its members; the latter is produced by the exercise of positive freedoms of its members.) To prevent tyranny, freedoms should be expanded widely. However, some institutions only have negative freedoms at best (i.e., employers). Tragic conflicts between freedoms are unfortunately inevitable, and we must navigate them as best we can. We should not despair, though, for we can approach the ideal where tragic conflicts do not arise -- although we may never reach it, we can continue to get closer.

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