Every liberal democracy recognizes that workers have a right to strike. That right is protected in law, sometimes in the constitution itself. Yet strikes pose serious problems for liberal societies. They involve violence and coercion, they often violate some basic liberal liberties, they appear to involve group rights having priority over individual ones, and they can threaten public order itself. Strikes are also one of the most common forms of disruptive collective protest in modern history. Even given the dramatic decline in strike activity since its peak in the 1970s, they can play significant roles in our lives. For instance, just over the past few years in the United States, large illegal strikes by teachers paralyzed major school districts in Chicago and Seattle, as well as statewide in West Virginia, Oklahoma, Arizona, and Colorado; a strike by taxi drivers played a major role in debates and court decisions regarding immigration; and strikes by retail and food-service workers were instrumental in getting new minimum wage and other legislation passed in states like California, New York, and North Carolina. Yet, despite their significance, there is almost no political philosophy written about strikes.Footnote 1 This despite the enormous literature on neighboring forms of protest like non-violence, civil disobedience, conscientious refusal, and social movements.
The right to strike raises far more issues than a single essay can handle. In what follows, I address a particularly significant problem regarding the right to strike and its relation to coercive strike tactics. I argue that strikes present a dilemma for liberal societies because for most workers to have a reasonable chance of success they need to use some coercive strike tactics. But these coercive strike tactics both violate the law and infringe upon what are widely held to be basic liberal rights. To resolve this dilemma, we have to know why workers have the right to strike in the first place. I argue that the best way of understanding the right to strike is as a right to resist the oppression that workers face in the standard liberal capitalist economy. This way of understanding the right explains why the use of coercive strike tactics is not morally constrained by the requirement to respect the basic liberties nor the related laws that strikers violate when using certain coercive tactics.
The argument proceeds in three sections. The first lays out the dilemma. The second describes the oppression that workers face. The third then argues for seeing the right to strike as a right to resist oppression and compares it with liberal and social democratic versions of the right to strike.
THE DILEMMA
Here are some general facts about strikes and labor markets that present liberal societies with a dilemma. A strike is a work stoppage to achieve some end. Higher skilled, low-supply workers, who usually enjoy better wages, hours and conditions, can carry off a reasonably effective strike with little coercion and no significant lawbreaking.Footnote 2 That is because they are hard to replace. So long as they exercise adequate discipline, workers will have a reasonable chance of succeeding if they refuse to work. Production slows or stops altogether. For instance, during the Verizon strike of 2016, Verizon used many replacement workers, as it was their legal right to do, but those replacements could not do the job effectively. Installing, servicing, and repairing copper-wire and FIOS systems turned out to require weeks of training and further on-the-job experience. After seven weeks, the company still was unable to service existing lines, let alone install new ones. Exercising a great deal of discipline and commitment, but no coercion or violence against replacements or managers, the Verizon workers slowed production enough to win concessions (Gourevitch Reference Gourevitch2016b).
However, low-skill, high labor supply workers in sectors like service, transportation, agriculture, and basic industry are in a different situation. These kinds of workers, in part because they are in such high supply, tend to have less bargaining power and therefore usually enjoy lower wages, longer hours, and worse working conditions.Footnote 3 On top of which, they are more vulnerable to forms of illegal pressure. For instance, consider the problem of wage theft, where employers fail to pay the full wages and benefits that workers are legally due. Wage theft is almost exclusively a problem affecting low-wage workers, 64% of whom experience it weekly and who on average lose 15% of their income each year to their employers (Judson and Francisco-McGuire Reference Judson and Francisco-McGuire2012). These workers already earn incomes not far from the poverty line. They are therefore the ones we intuitively think should have the strongest case for a right to strike. Yet, even if all of the current workers walk off and respect the picket, replacements are much easier to find, train, and put to work. So workers might refuse to work but, once replaced, they will have little chance of slowing or stopping production. For example, this is one of the challenges facing workers like Walmart or McDonald's workers who have done single-day strikes for demonstration and protest purposes, but have not struck long enough to be replaced.Footnote 4
What this means is that the majority of workers, who are relatively easy to replace, often have to use some coercive tactics if they want to go on strike with some reasonable chance of success. These tactics either prevent managers from hiring replacements, prevent replacements from taking struck jobs, or otherwise prevent work from getting done. The classic coercive tactics are sit-downs and mass pickets.Footnote 5 Sit-down strikes involve occupying the workplace so that no work can be done. Mass pickets are when strikers and their supporters surround a workplace with a wall of picketers so that no people or supplies can get in or out. For the majority of relatively easy to replace workers to go on strike with some reasonable chance of success they have to use one of these coercive tactics.Footnote 6
But what is the actual dilemma? It is the following. A basic principle of political morality in any liberal capitalist society is that all persons enjoy basic liberties on the condition that they extend the same basic liberties to everyone else and that these liberties should be enshrined in law. You are free to exercise your basic liberties so long as you do not coercively interfere with others in the enjoyment of their same liberties. But the aforementioned coercive strike tactics violate a number of these basic liberties as they are commonly understood, both in law and political culture. They violate the property rights of owners and their managers, the freedom of contract and association of replacement workers, and they threaten the everyday, background sense of public order of a liberal capitalist societ— insofar as law and order is commonly identified with obedience to the law and uninterrupted flow of commerce. The dilemma is that the right to strike, when exercised by the majority of worst-off workers, seems to conflict directly with the basic economic and civil liberties of large numbers of other people and with the background legal order that secures those liberties.
To resolve this dilemma, we need to know what has moral priority: the basic economic and civil liberties, as they are enforced in law, or the right to strike. If the former, then the right to strike must be limited by the requirement to respect the legally protected basic liberties of owners, managers, and replacements. That would mean that, in the typical case, the majority of easily replaced workers cannot exercise their right to strike with a reasonable chance of success. However, if the right to strike has priority, then workers are not ex ante restrained by the basic economic and civil liberties of others and they might be permitted even to engage in mass civil disobedience when violating those liberties. To know which way to think, we need an account of why workers have the right to strike in the first place.
A definitional note before proceeding. Three terms get used in the context of strikes with a great deal of ambiguity: violence, coercion, and force. I cannot, in this essay, address all such sources of ambiguity but two things must be said. One source of ambiguity is whether these terms are moralized or not. Here I use them in a non-moralized sense—the use of violence, coercion, and force might be justified or unjustified, but to call something an act of violence/coercion/forcing does not, in itself, imply a judgment that the act was wrong. The other source of ambiguity lies in how these terms are defined. Each are different but related ways of interfering with and limiting people's freedom. I will use violence to refer to acts intending to cause physical harm to individuals. So, when the police, as part of their strikebreaking activities, beat up picketers during the Justice for Janitors strike in 1990, they committed acts of violence. Forcing is when someone has no reasonable alternative to a course of action. So, workers are forced to enter the labor market when they have no reasonable alternative to entering the labor market—say, because finding a job is the only way to earn the money they need to meet their basic needs.Footnote 7 Coercion is a specific kind of forcing. It is the removal of reasonable alternatives to a course of action and making it known to the coerced agent that she has no reasonable alternatives. So, the state coerces workers into not engaging in sit-ins and mass pickets when it pronounces those tactics unlawful, makes it known that the tactics are illegal, and commits to the use of police violence to enforce that law. The threat of violent law enforcement is enough to say that workers are coerced into following the law. Again, these are examples of what violence, forcing, and coercion mean, but to call them acts of violence/forcing/coercion is not, so far, a normative judgment about whether they are justified or not.
This terminological parsing might seem tedious but is necessary both to grasp the stakes of the dilemma above as well as the nature of the argument I will make about resistance to oppression. The framing dilemma has to do with the use of coercive, not violent, strike tactics that give workers a reasonable chance of inducing employers to renegotiate terms. A further dimension to that dilemma is whether the state is justified in using violence and coercion to prohibit the use of coercive strike tactics or whether workers are justified in breaking the law.
THE FACTS OF OPPRESSION IN TYPICAL LIBERAL CAPITALIST SOCIETIES
To explain why the right to strike is a right to resist oppression, I first must give an account of the relevant oppression. Oppression is the unjustifiable deprivation of freedom. Some deprivations or restrictions of freedom are justified and therefore do not count as oppression. The oppression that matters for this article is the class-based oppression of a typical liberal capitalist society. By the class-based oppression, I mean the fact that the majority of able-bodied people find themselves forced to work for members of a relatively small group who dominate control over productive assets and who, thereby, enjoy unjustifiable control over the activities and products of those workers. There are workers and then there are owners and their managers. The facts I refer to here are mostly drawn from the United States to keep a consistent description of a specific society. While there is meaningful variation across liberal capitalist nations, the basic facts of class-based oppression do not change in a way that vitiates my argument's applicability to those countries too. Empirical analysis of each country to which the argument applies, and how it would apply, is a separate project.
The first element of oppression in a class society resides in the fact that (a) there are some who are forced into the labor market while others are not and (b) those who are forced to work—workers—have to work for those who own productive resources. Workers are forced into the labor market because they have no reasonable alternative but to find a job.Footnote 8 They cannot produce necessary goods for themselves, nor can they rely on the charity of others, nor can they count on adequate state benefits. The only way most people can gain reliable access to necessary goods is by buying them. The most reliable, often only, way most people have of acquiring enough money to buy those goods is through employment. That is the sense in which they have no reasonable alternative but to find a job working for an employer. Depending on how we measure income and wealth, about 60–80% of Americans are in this situation for most of their adult lives.Footnote 9
This forcing is not symmetrical. A significant minority is not similarly forced to work for someone else, though they might do so freely. That minority has enough wealth, either inherited or accumulated or both, that they have a reasonable alternative to entering the labor market. So, this first dimension of oppression comes not from the fact that some are forced to work, but from the fact that the forcing is unequal and that asymmetry means some are forced to work for others.Footnote 10 That is to say, what makes it oppressive is the wrong of unequally forcing the majority to work, for whatever purpose, while others face no such forcing at all.Footnote 11 That way of organizing and distributing coercive work obligations, and of imposing certain kinds of forcing on workers, is an unjustifiable way of limiting their freedom and therefore oppressive. To fix ideas, I call this the structural element of oppression in class societies.
This structural element leads to a second, interpersonal dimension of oppression in the workplace itself. Workers are forced to join workplaces typically characterized by large swathes of uncontrolled managerial power and authority. This oppression is interpersonal in the sense that it is power that specific individuals—employers and their managers—have to get other specific individuals—employees—to do what they want. We can distinguish between three overlapping forms that this interpersonal, workplace oppression takes: subordination, delegation, and dependence.
• Subordination: Employers have what are sometimes called “managerial prerogatives,”Footnote 12 which are legislative and judicial grants of authority to owners and their managers to make decisions about investment, hiring and firing, plant location, work process, and the like.Footnote 13 These powers come from judicial precedent and from the constellation of corporate, labor, contract, and property law. Managers may change working speeds and assigned tasks, the hours of work, or even force workers to spend up to an hour going through security lines after work without paying them (Integrity Staffing Solutions, Inc. v. Busk 2014). Managers may fire workers for Facebook comments, their sexual orientation, for being too sexually appealing, or for not being appealing enough (Emerson Reference Emerson2011; Hess Reference Hess2013; Strauss Reference Strauss2013; Velasco Reference Velasco2011). Workers may be given more tasks than can be performed in the allotted time, locked in the workplace overnight, required to work in extreme heat and other physically hazardous conditions, or punitively isolated from other coworkers (Greenhouse Reference Greenhouse2009, 26–27, 49–55, 89, 111–112; Hsu Reference Hsu2011; JOMO 2013; Urbina Reference Urbina2013). Managers may pressure employees into unwanted political behavior (Hertel-Fernandez Reference Hertel-Fernandez2015). In all of these cases, managers are exercising legally permitted prerogatives.Footnote 14 The law does not require that workers have any formal say in how those powers are exercised. In fact, in nearly every liberal capitalist country, employees are defined, in law, as “subordinates.”Footnote 15 This is subordination in the strict sense: workers are subject to the will of the employer.
• Delegation: There are also other discretionary legal powers that managers have not by legal statute or precedent but because workers have voluntarily delegated these powers in the contract. For instance, workers might sign a contract that allows managers to require employees to submit to random drug testing or unannounced searches (American Civil Liberties Union 2017). In the United States, 18% of current employees and 37% of workers in their lifetime work under non-compete agreements (Bunker Reference Bunker2016). These clauses give managers legal power to forbid workers from working for competitors. The contract that the Communications Workers of America had with Verizon until 2015 included a right for managers to force employers to perform from 10 to 15 hours of overtime per week and to take some other day instead of Saturday as an off-day (Gourevitch Reference Gourevitch2016a). These legal powers are not parts of the managerial prerogatives that all employers have. Rather, they are voluntarily delegated to employers by workers. In many cases, though the delegation is in one sense voluntary, in another sense it is forced. This will especially be the case if workers, who are forced to find jobs, can only find jobs in sectors where the only contracts available are ones that require these kinds of delegations.
• Dependence: Finally, managers might have the material power to force employees to submit to commands or even to accept violations of their rights because of the worker's dependence on the employer. A headline example is wage-theft, which affects American workers to the tune of $8–$14 billion per year (Eisenbray Reference Eisenbray2015; Judson and Francisco-McGuire Reference Judson and Francisco-McGuire2012; NELP 2013; Axt Reference Axt2013). In other cases, workers have been forced to wear diapers rather than go to the bathroom, refused legally required lunch breaks, or pressured to work through them, forced to keep working after their shift is up, or denied the right to read or turn on air conditioning during break (Oxfam 2015; Bennett-Smith Reference Bennett-Smith2012; Egelko Reference Egelko2011; Greenhouse Reference Greenhouse2009, 3–12; Little Reference Little2013; Vega Reference Vega2012). Other employers have forced their workers to stay home rather than go out on weekends or to switch churches and alter religious practices on pain of being fired and deported (Garrison, Bensinger, and Singer-Vine Reference Garrison, Bensinger and Singer-Vine2015). In these cases, employers are not exercising legal prerogatives, they are instead taking advantage of the material power that comes with threatening to fire or otherwise discipline workers. This material power to get workers to do things that employers want is in part a function of the class structure of society, both in the wide sense of workers being asymmetrically dependent on owners, and in the narrower sense of workers being legally subordinate to employers.
Subordination, delegation, and dependence add up to a form of interpersonal oppression that employers and their managers have over their employees. The weight and scope of this oppression will vary, but those are variations on a theme. Employers and managers enjoy wide swaths of uncontrolled or insufficiently controlled power over their employees. This is the second face of oppression in a class society and it is a live issue. For instance, during the Verizon strike of 2016, one major complaint was that, when out on the job, hanging cable, or repairing lines, some technicians had to ask their manager for permission to go to the bathroom or to get a drink of water. As one striker said in an interview, “Do I have to tell my boss every single minute of what I am doing? This is basic human dignity” (Gourevitch Reference Gourevitch2016b). If they did not ask or wait to get clear approval from their manager, then they were guilty of a time code violation and were suspended for up to six weeks. The strike made workplace control a direct issue and one measure of its success was a change in disciplinary proceedings (ibid.). To take another example, the Fight for $15 strikes have made control over scheduling a central demand, even managing in certain states and municipalities to pass laws mandating minimal regularity and predictability in weekly schedules (Andrias Reference Andrias2016, 47–70).
So, if the first face of oppression is that workers are forced to work for some employer or another who does not face a similar kind of forcing; the second face is that workers are forced to become de jure and de facto subordinates to a specific employer.Footnote 16 The third face of oppression is the systematic distributive effects of structural and interpersonal oppression. While some instances of class-based oppression are idiosyncratic, in general it has consistent distributive effects. The structural and interpersonal oppression of workers produces wage-bargains and limits on wealth accumulation that reproduce workers’ economic dependence on employers, their over or underemployment, and thereby allows a relatively small group of owners and highly paid managers to accumulate most of the wealth and income. I cannot discuss the extensive literature on inequality. I can only cite some generally well-known facts and papers pointing to the role of inequalities in power as determining factors in these outcomes.Footnote 17 To the degree that inequalities are a product of structural and workplace oppression, distributive outcomes are their own dimension of oppression and serve to reproduce those basic class relationships. Above all, there is one unjustifiable distributive effect of this oppression: that the majority of wage-bargains ensure the reproduction of that oppressive class structure. At any given point in time, a majority of workers do not earn enough to both meet their needs and to save such that they can employ themselves or start their own businesses. They must therefore remain workers or, to the degree they rise, they do so either by displacing others or by taking the structurally limited number of opportunities available.Footnote 18
Each of these different faces of oppression—structural, interpersonal, and distributive—is a distinct injustice. Together they form an interrelated and mutually reinforcing set of oppressive relationships. The various ways in which workers are forced to work, made subject to dominating authority, and made asymmetrically dependent in the economy does not produce a fair way of distributing the obligation to work and the rewards of social production. Rather, it constrains their freedom in a way that secures the exploitation of one class by another. The weight of these different oppressions is unevenly experienced across different segments of workers. Various factors modify the basic facts about class and oppression. We have seen, for instance, the difference between being in a high labor supply versus a low labor supply sector. High labor supply sectors involve more intense labor competition, resulting in weaker bargaining power for workers and intensified oppression. The opposite holds for lower labor supply sectors—like software programmers or fiber-optics technicians—whose greater bargaining power means they face class-based oppression less intensively. This has downstream consequences for our analysis of particular strikes, but it does not affect the argument for the right to strike itself.
My description of the economy is controversial. Some will either reject aspects of the empirical description, find it too underspecified to agree, or they will disagree with the normative interpretation of it as involving systematic, unjustified restrictions on workers’ freedom. Any attempt to give a more detailed account of this political economy of exploitation would leave no room for the rest of the argument. In what follows, the reader does not have to agree with every aspect of my description of liberal capitalist arrangements. One need only agree that the typical liberal capitalist economy is characterized by considerable, class-based oppression of workers, for reasons similar to the ones I have just provided, to then think that the right to strike can be seen as a right to resist oppression.
THREE VERSIONS OF THE RIGHT TO STRIKE: RADICAL, SOCIAL-DEMOCRATIC, AND LIBERAL
There is more than one way to justify the right to strike and, in so doing, to explain the shape that right ought to have. As we shall see, there is the liberal, the social-democratic, and the radical account. Any justification of a right must give an account not just of the interest it protects but of how that right is shaped to protect that interest. In the case of the radical argument for the right to strike, which I will defend against the other two conceptions, the relevant human interest is liberty. Workers have an interest in resisting the oppression of class society by using their collective power to reduce that oppression. Their interest is a liberty interest in a double sense. First, it is an interest in not being oppressed, or in not facing certain kinds of forcing, coercion, and subjection to authority that they shouldn't have to. Any resistance to those kinds of unjustified limitations of freedom carries with it, at least implicitly, a demand for liberties not yet enjoyed.Footnote 19 That is a demand for a control over portions of one's life that one does not yet enjoy. Second, and consequently, the right to strike is grounded in an interest in using one's own individual and collective agency to resist—or even overcome—that oppression. The interest in using one's own agency to resist oppression flows naturally from the demand for liberties not yet enjoyed. After all, that demand for control is in the name of giving proper space to workers’ capacity for self-determination, which is the same capacity that expresses itself in the activity of striking for greater freedom.
On this radical view, the right to strike has both an intrinsic and instrumental relation to liberty. It has intrinsic value as an (at least implicit) demand for self-emancipation or the winning of greater liberty through one's own efforts. It has instrumental value insofar as the strike is on the whole an effective means for resisting the oppressiveness of a class society. For the right to strike to enjoy its proper connection to liberty, workers must have a reasonable chance of carrying out an effective strike, otherwise it would lose its instrumental value as a way of resisting oppression. If prevented from using a reasonable array of effective means, exercising the right to strike would not be a means of reducing oppression and, therefore, strikes would also be of very limited value as acts of self-emancipation. It would not be an instance of workers attempting to use their own capacity for self-determination to increase the control they ought to have over the terms of their daily activity.
To grasp what makes this radical view distinctive, let us compare it with two other conceptions of the right to strike: the liberal and the social-democratic. These two other accounts are internally coherent. But they are deficient in at least one, potentially two, ways. The first deficiency is substantive. The liberal and social-democratic accounts fail to properly identify the nature, depth, and scope of the class-based oppression in existing capitalist societies. This means their justification of the right to strike is improperly narrow or otherwise constrained in ways it ought not to be.
The second deficiency is methodological. Some liberal and social democratic accounts proceed in a different way that, at best, results in some confusion and, at worst, produces ideological obfuscation. Those accounts begin by asking what kind of right to strike would workers in an ideal society enjoy. They then use the answer to justify and describe the shape of the right to strike that workers in actually existing, class-divided societies, enjoy. This move, whether explicit or implicit, is always illicit. It not only changes the normatively relevant question from what is permitted under conditions of oppression to what one ought to be free to do under ideal ones, but it also lends the weight of ideal conditions to actual circumstances in the wrong way. It makes it appear like those ideal rights—their grounds, limits, and permissions—apply as limiting conditions to severely nonideal political and social relations. As such, it lends the moral weight of the ideal to the real in a way that obscures the oppression of that social reality.
To be clear, this methodological error is not a logically necessary feature of the liberal or social democratic views I shall present and criticize. But it is a recurring or latent tendency that leads to mistakes and ambiguities about the basis for and the proper shape of the right to strike. Insofar as this methodological issue is not directly confronted, it creates real confusion about the basis for the right to strike—about whether the liberal or social democratic versions of the right to strike are responses to oppression or theories of a species of right that one enjoys under ideal conditions. The radical version of the right to strike that I defend, however, is explicit in its justificatory approach. The radical argument makes no claim regarding whether members of an ideal society would enjoy a right to strike nor does it say what that right to strike would look like under ideal circumstances.Footnote 20 Instead, it answers the question, "What kind of right to strike should workers have?" by asking, "What may workers who face oppression do to resist that oppression?" That is to say, it is an argument about the kinds of rights those who face oppression have in virtue of the fact that they are oppressed and only in the context of that oppression. This is a different kind of reasoning and yields a different view about why certain ways of exercising that right are permissible or not.Footnote 21
Again, the primary disagreement for the view I defend is substantive. The radical view takes a distinct position on what is oppressive about a class-divided society and therefore what kind of right workers have to resist it. But a parallel and secondary concern regards the method by which this argument is justified. In what follows, I will make clear when the critique of the liberal and social democratic point of view is substantive and when it is methodological.
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 freedom 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 exercise of those basic rights can look like in the economy. John Stuart Mill made roughly this argument when saying the strike was an
“indispensable means of enabling the sellers of labour to take due care of their own interests under a system of competition. . .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 Reference Mill1909, 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 everyone 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 severity, 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 opinion to restrain it, by rectifying the moral sentiments of the people.” (V.10.33)
While strikes are acceptable ways for workers to pursue their interests, their refusal to work must be unforced. Likewise, strikers may attempt to use moral suasion or otherwise reason with employers and replacement 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.Footnote 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 market in the name of which they claim a right to strike. In some cases, the liberal case explicitly denies any such disadvantage exists (Shenfield Reference Shenfield1986, 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 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 framework tend to argue that legitimate strike activity must be strictly limited and regulated (Shenfield Reference Shenfield1986, 9–28, 39–46; Hayek Reference Hayek2011, 384–404).
It is not hard to see how this approach would resolve the dilemma with which this article opened. The right to strike would be subordinate to the basic liberties from which it is derived. That means that strikers would not be permitted to use any coercive strike tactics like sit-downs and mass pickets. Any such permission would render this account of the right to strike incoherent or contradictory since it would permit violation 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”Footnote 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.Footnote 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 freedoms 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 coercive strike tactics that might violate others’ freedom of contract or association. That is because, on the classical 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 oppression, 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 established welfare state, a social democrat will say there 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 because, 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 distributive results of voluntary wage bargains would be considered unfair.
The relevant bundle of labor rights corrects these inequalities 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.Footnote 25 That is, they specify no precise distributive outcomes. Instead, they establish 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,Footnote 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.Footnote 27
This social democratic argument is not just the thinking behind a few Scandinavian welfare states. It is a central part of international defenses of the right to strike (Gernigon, Odero, and Guido Reference Gernigon, Odero and Guido1998, 11–6; Leader Reference Leader1992, 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,Footnote 28 says
“Whereas under prevailing economic conditions, developed 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, wherefore. . .it is necessary that he have full freedom of association, 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.)
The Act's stated concern is that the “individual unorganized worker” cannot “exercise actual liberty of contract” or enjoy “freedom of labor” without bargaining 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 bargaining power between employees who do not possess full freedom of association or actual liberty of contract and employers who are organized in the corporate or other forms of ownership association” (ibid.). The great advantage of a right to strike, among other labor 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, provide.
The advantage of the social democratic over the classical 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.Footnote 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 instrument for increasing the bargaining power of workers. Therefore, any proper right to strike must include not just permission for workers to use a range of tactics, 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 labor markets, the second is inadequate protection of labor 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 properly institute labor rights, wherever that failure exists, constitutes its own, companion form of oppression because workers are denied an important freedom that they ought to enjoy.
There is one potentially confusing feature of the social democratic argument. As presented above, it is an argument for why workers ought to enjoy a right to strike and, at least implicitly, an argument for what that right to strike would look like in an adequately social democratic society. But, on the best versions of the social democratic view, that is a moral argument for why workers should have a legal right to strike and what that legal right would look like. It is not an argument that workers under conditions of oppression would have the same right to strike. Instead, the aforementioned version of the social democratic argument for labor rights is part of an overall theory of when to count a socioeconomic order as oppressive. In that sense, the social democratic argument is compatible with a version of the radical right to strike. When workers lack (social democratic) labor rights and/or when their bargaining conditions are unfair, then they are justified in using a range of strike tactics, potentially including some that would not be permissible in an ideal social democratic regime, to resist that oppression.
Notably, some figures historically associated with social democracy have made versions of that argument. Social democrats in the United States have claimed Samuel Gompers, John Lewis, even Eugene Debs for their tradition, while in Europe social democrats will draw on a long line of thinking originating with figures like Eduard Bernstein and Karl Kautsky.Footnote 30 In their time, those figures defended enormously disruptive, coercive, and illegal strikes as a response to the actual injustices of their times, while arguing that workers should enjoy robust labor rights including a legally protected right to strike. Whether each of these individuals is properly understood as a ‘social democrat’ as opposed to, say, a ‘socialist,’ is less relevant than the basic point. The best version of the social democratic argument for a right to strike is two-pronged. Primarily, it is a moral argument for why workers ought to enjoy a legal right to strike as part of the fundamental economic liberties of the ideal constitution. But, secondarily, the social democratic argument is compatible with the radical right to strike because it recognizes the strike as a permissible way of claiming rights and resisting economic injustice. To the degree workers are denied their rights and face economic injustice, a social democrat could say, they enjoy a right to strike whose shape would not be determined by the shape of the right to strike they should ideally enjoy but, instead, by the fact that they have a right to resist oppression.
As far as it goes, then, there is a family resemblance between the social democratic and the radical right to strike. The two versions will overlap when social democrats, in virtue of their conception of economic justice, have reason to argue that workers enjoy a right to strike that is best understood as a right to resist oppression. However, the views come apart with respect to the nature and scope of the relevant oppression. After all, on the social democratic view, one can secure distributive justice without correcting the basic class structure of actual societies and, in particular, without fundamentally challenging the inequalities in who is forced to work and who exercises control over the workplace. The primary social democratic claim, instead, is that the central distributive injustice to which labor rights respond lies in the unequal bargaining position of workers when it comes to hours, benefits, and wages. That leaves aspects of both structural and interpersonal oppression in the workplace either insufficiently modified or undertheorized as sources of complaint. As a consequence, the scope of strikes is implicitly limited because those forms oppression aren't taken as objects against which strikes might legitimately be directed. It looks like the main point of unlawful and coercive strikes is to try to claim labor rights, like the right to strike, as a legal right. The central political purpose of strikes will be constrained. The private monopolization of wealth, the unequal distribution of coercive work obligations, and the hierarchical organization of the workplace are all consistent with the social democratic view. This will lead the social democrat to argue that certain kinds of strikes, say industry-wide strikes or political strikes against certain distribution policies or strikes over workplace control are outside the legitimate scope of permitted strikes—a view reflected in the labor law of some actual social democracies.Footnote 31 On the radical view, however, the sources of oppression are more extensive and inter-related in a class society, which is why the right to strike has a wider scope. This substantive difference about what counts as class oppression explains the fundamental division between social democrats and radicals: the radicals properly identify the full scope of what is oppressive in actually existing, class-divided societies. This will inevitably lead to differences in political judgment about the acceptable range of strike tactics and situations in which it is appropriate to exercise the right to strike.
The Radical View: The Right to Resist Oppression
The radical view has a number of advantages over the liberal and social democratic accounts. First and foremost, it is a more adequate response to the facts of oppression in actually existing liberal economies. Where the liberal view recognizes no particular injustice, and the social democratic view focuses primarily on inequalities of bargaining power, the radical view is based on the social analysis sketched in the second section of this article. That social analysis identifies the full range of oppressions, and their interlocking character, that are typical of actually existing class-divided liberal societies. That is why I call this view radical: not for the sectarian frisson sometimes associated with that word but because radical means going to the root of a problem.
Second, the radical view goes to the root not just because it properly identifies all of the relevant facts, but because it thereby more accurately identifies the kind of interest that the right to strike is supposed to protect. It identifies the guiding interest of the right not as an interest (only) in creating fair contracts or in distributive justice narrowly conceived but, rather, as an interest in claiming freedom against its illegitimate limitation. Workers have an interest in not facing certain kinds of coercive restraints against their access to property, in not being subject to unfair ways of forcing them to work, in not being required to accept various kinds of labor contracts, and in not being dominated in the workplace. These are elements of the same interest that workers have in self-determination, or in enjoying those liberties that allow them to have the personal and political autonomy they ought to. This is the full sense in which the radical view is more responsive to the facts of oppression than other accounts. This further means that the radical argument is compatible with, or at least in the neighborhood of, any number of egalitarian theories of justice—such as those arguing for property-owning democracy or for workplace democracy and free timeFootnote 32—that are concerned with these wider forms of unfreedom. It is, for the same reason, compatible with a wide range of socialist and other left-wing criticisms of power and unfreedom in capitalist workplaces (e.g., Arnold Reference Arnold2017; Ezorsky Reference Ezorsky2007; Weeks Reference Weeks2011).
The third virtue of the radical approach is that it gives a distinct explanation for the shape of the right to strike. Recall that the liberal and the social democratic approaches can have a tendency to explain the shape of that right by reference either to (a) the basic liberties of actual liberal societies, or (b) the liberties one enjoys in an ideal constitution, or (c) through a mixture of both arguments. That form of reasoning imparts a particular shape to the right: it must respect the basic liberties with which it comes in conflict. On the best version of the social democratic view, that methodological error is avoided. But it is present in any version of the argument in which the shape of the legal right to strike one ought to enjoy is the same as or similar to the right workers exercise when suffering economic injustice. But on the right to resist oppression view, the shape of the right is explained exclusively by reference to the liberty interest it is supposed to protect under conditions of oppression. The right is justified instrumentally, by reference to the fact that strikes are generally effective means for resisting the oppression to which workers are subject. And, further, the right is justified by reference to the interest workers have in using their own collective power to reduce and resist that oppression. Under conditions of oppression, that use of collective power is one of the primary ways workers can give expression to the demand for self-determination. But that aspect of the justification also depends upon strikes being generally effective means for resisting oppression, since otherwise they would just be collective acts of self-delusion or symbolic gestures of resistance but not acts self-determination. For that to be the case, the right to strike must include the use of at least some of the means that make strikes effective for those subject to oppression. That the right comprises permissions to use some effective means is a defining feature of the radical argument. After all, for the right to strike to protect the interest that justifies it, it must be shaped in ways that permit the right's exercise in ways that actually protect that interest. That follows directly from the liberty-based justification of the right. So, on this account, there would be no strict prohibition on the use of coercive strike tactics like sit-downs and mass pickets.Footnote 33
A fourth virtue of the radical approach follows from the third. If the radical right to strike does not contain, internal to its justification, the same restraints on the means strikers may use, there is still the question of why the right to strike would have moral priority over other basic liberties in the case of labor disputes. On the radical view, the important point is not just that there is economic oppression but that the economic oppression that workers faced is in part created and sustained by the legal articulation and protection of those basic economic and civil liberties. Workers find themselves oppressed because of the way property rights, contractual liberties, corporate authority, tax and labor law create and maintain that oppression. If that is the case, then the normal justification of those liberties, which is supposed to establish their ‘basicness’ and thus priority is weak. Their priority is normally explained by the thought that, ideally speaking, the protection of those liberties creates more or less non-oppressive, non-exploitative relations of social cooperation.Footnote 34 In reality, their legal protection achieves the opposite. Meanwhile, the right to strike, as a way of reducing that oppression has a stronger claim to be protecting a zone of activity that actually serves the aims of justice itself—of coercing people into relations of less oppressive social cooperation. That is why the right to strike would have priority over some of these basic economic and civil liberties, like property rights, freedom of contract, and freedom of association.
For the foregoing reasons, we can see why the right to strike as a right to resist oppression resolves the opening dilemma in a forceful and distinctive way. Workers may use coercive strike tactics, like sit-downs and mass pickets, because those are necessary means for the most oppressed workers to go on strike with some reasonable chance of success. The radical right to strike does not ex ante prohibit the use of those means and, given the actual social effects of the legal protection of basic liberties, it has priority over the basic liberties. Moreover, those strikes can be aimed at the full range of oppressions workers in those industries might face—not just denial of adequate respect for their labor rights or poverty wages, but as acts of resistance to various features of workplace oppression and the unfair distribution of work requirements.
We can also see that this version of the right to strike permits—though does not require—mass civil disobedience in those frequent instances where the state decides to enforce the law against strikers. For one, the property, contract, and related laws that strikers break are the ones that create systematic oppression. The systematic and serious character of that oppression undermines any general claim to political obligation, or local claim to an obligation to obey those laws.Footnote 35 Moreover, when the state decides, as it historically has done, that coercive strike tactics violate the law or otherwise violate the fundamental rights of legal persons, it has used sometimes quite extraordinary violence to suppress strikes.Footnote 36 Workers would be within their rights to resist that illegitimate use of violence, though it will often be prudential not to do so. It is important to draw this conclusion because it is a direct implication of the argument. Moreover, if one does not agree that workers are justified in mass civil disobedience as part of the exercise of the right to strike, then one is committed to arguing that the state is justified in the violent suppression of strikes—a violence with a long and bloody history. One might very well draw that latter conclusion, but then one must be clear about the side one is choosing. Either workers are justified in resisting the use of legal violence to suppress their strikes, or the state is justified in violent suppression of coercive strike tactics. There is no way around that stark fact about the liberal state and coercive strike tactics.
CONCLUSION
The dialectic of this article has been to use a dilemma to point out that the justification of the right to strike matters and then to use that justification to resolve the dilemma. The dilemma was that the worst-off workers typically cannot go on strike with a reasonable chance of success without using some coercive strike tactics that both appear to violate the basic liberties of others and potential involve substantial lawbreaking. To know which has priority, their right to strike or those legally protected basic liberties, we first need to know why actually existing workers have the right to strike. The best justification of that right is that it is one form of the right to resist oppression. Once seen as a right to resist economic oppression, a right justified in response to legal protection of the basic liberties that coercive strike tactics violate, then we can see why, on this radical account, workers would be permitted to use some of those tactics as part of the exercise of their right. Other conclusions follow from the radical account of the right to strike, but those are for another paper. Instead, I conclude with two quick thoughts about potential objections.
One might object that the right to strike is the wrong answer to the facts of oppression. Isn't the proper response to argue for social policies that would eliminate that oppression? Why bother with the chaos and collateral injustice that often follows from strikes? The short answer is that this is a non sequitur. I am asking, “given the facts of oppression, what may those who suffer it do to resist it?” The objector is asking, “What would the ideal, or at least reasonably just, society look like?” The latter is its own question, but as a response to my question it is unacceptably quietist. It verges on arguing that those who are oppressed must suffer it until utopia becomes possible.
One might also object that it sounds like I am saying there are no restraints on what strikers may do. I am not saying that either. I am explaining why a specific set of coercive strike tactics, which have been the centerpiece of the strike repertoire whenever the majority of workers have had it in their mind to strike, are not limited by the requirement to respect those legally protected economic liberties that they violate. There are, nonetheless, all kinds of things strikers are not justified in doing to win a strike. But that is a complex and separate problem of political ethics, which we can only tackle once we have taken the first step of understanding why some of the conventional restraints of liberal political morality do not apply to these kinds of labor disputes.
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