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Philip Pettit's Republicanism and Labour Law: A Defence

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Abstract

Republican political theory has attracted the attention of labour lawyers in recent years. Engaging with and contributing to this emerging area of scholarly interest, this paper endeavours to defend the possibility of a general republican justification for labour law through reliance on the writings of Philip Pettit. Contrary to the arguments of some scholars, the paper suggests that at least some important parts of labour law could be justified in the light of this particular version of republicanism and it is possible that many other if not all areas could be justified in the future. As Pettit's republicanism is a work in progress, so too is the justification of labour law in the light thereof. The "Download of the Week" on Lawrence Solum's Legal Theory Blog, 19-23 July 2021. A "Top Ten Download" for a Political Science Network Labour paper on SSRN, 4 July - 2 September 2021. A "Top Ten Download" for: an Employment, Labour, Compensation & Pension Law eJournals; Legal Scholarship Network Collective Bargaining Law; Legal Scholarship Network Other Law & Society: Private Law - Labour & Employment Law; Labor Law eJournal; and Law & Society: Private Law - Labour & Employment Law eJournal paper on SSRN, 13 July - 11 September 2021. A version of the paper has been accepted for publication in the International Journal of Comparative Labour Law and Industrial Relations.
Philip Pettit’s Republicanism and
Labour Law: A Defence
Dáire McCormack-George
*
Abstract: Republican political theory has attracted the attention of labour
lawyers in recent years. Engaging with and contributing to this emerging
area of scholarly interest, this paper endeavours to defend the possibility
of a general republican justification for labour law through reliance on the
writings of Philip Pettit. Contrary to the arguments of some scholars, the
paper suggests that at least some important parts of labour law could be
justified in the light of this particular version of republicanism and it is
possible that many other if not all areas could be justified in the future.
As Pettit’s republicanism is a work in progress, so too is the justification of
labour law in the light thereof.
Keywords: Republicanism, freedom as non-domination, social justice,
political legitimacy, sovereignty, basic liberties, work, community
Introduction
In recent times, some prominent labour law academics in the English-
speaking world have attempted to justify at least some parts of labour
law in the light of the normative political theory known as ‘republicanism’.
This paper expands on those attempts by providing an exposition and
general but qualified defence of the possibility of a normative republican
justification of labour law. It is, therefore, a paper in special jurisprudence
and applied normative political theory. The paper proceeds in three parts.
* Researcher at the Courts Service of Ireland. This paper was presented at LLRN5, 27-29
June 2021. Parts of this paper draw on the author’s doctorate and materials first
published as ‘The Right to Work in Irish Law’ (2020) 42 DULJ 119. The author would like
to thank his doctoral supervisor, Prof Mark Bell, for extensive commentary on previous
drafts. The author is also grateful to Dr David Prendergast, Prof Guy Davidov and two
anonymous reviewers for their comments and suggestions. The usual disclaimer applies.
1
Relying on the priority of value over normative theory, Part I
1
identifies some central values of relevance to labour law. Specifically, Part
I identifies work and community as basic goods in the lives of workers.
The point of this part is to identify some of the fundamental values
justifying labour law which have heretofore been overlooked and/or given
inadequate attention. In doing so, it identifies and clarifies some of the
presuppositions underlying philosophical theories of labour law generally
and normative republicanism in particular. It is important to emphasise, at
this stage, that Part I not only forms a logically and explanatorily
necessary background to what follows in Parts II and III, but also itself
responds directly to a number of minor preliminary uncertainties and
misunderstandings which have emerged in some labour law theorisation
to date.
Part II then provides a relevant exposition of one contemporary
version of republican normative political theory necessary to secure those
valuable aspects of workers’ lives in political communities. The version of
republicanism relied on here is that of Philip Pettit. My reasons for doing
so are twofold. First, in the pantheon of republicanism, it stands out as
the most developed and comprehensive form of republicanism to date.
Second, it is hoped that by relying on one theorist, a consistent
republican account can be developed throughout the paper, rather than
simply drawing on different theorists as and when it suits, a problem
which, in this writer’s view, explains some criticisms which have emerged
in the republican labour law literature discussed in Part III.D. The
combined analysis of Parts I and II, in providing an exposition of one of
the most prominent versions of normative republicanism and its value
theoretic presuppositions, has yet to be fully provided and appreciated by
labour law scholars advocating a republican justification of labour law.
In the light of this exposition, Part III provides a defence of the
possibility of a ( the only) republican justification of labour law against
some significant objections to Pettit’s theory and republicanism more
generally which have been raised in the literature to date. The objections
considered revolve around three themes: unfreedom and work; non-
domination and work; and theory and practice in labour law. The
argument made in Part III can be summarised as follows. Pettit’s
republicanism offers an instrumental justification for labour law. It
identifies the employment relationship as necessarily involving
domination. Finally, the criticisms made to date in respect of other
aspects of labour law have not been convincing. A conclusion follows.
In sum, this paper makes the following critical and original
contributions to labour law scholarship. First, it identifies a number of
fundamental values which may justify labour law according to a novel
Joseph Raz, Practical Reason and Norms (Revised edition, OUP 1999) 11-12. On the
1
distinction between value theory and normative theory, see further Michael Zimmerman,
‘Value and Normativity’ in Iwao Hirose and Jonas Olson (eds), The Oxford Handbook of
Value Theory (OUP 2015).
2
methodology which has not yet been entirely appreciated or explored by
academic labour lawyers, as well as making some minor critical comments
on philosophical methodology in labour law theorisation generally.
Second, the paper provides a more comprehensive and descriptively
accurate account of one version of republicanism than has heretofore
provided by labour lawyers in their analysis of the broad field of
republican political theory. Third and relatedly, it largely rebuts criticisms
of that particular version of republicanism which have been made by
labour law scholars to date.
I. Workers’ Lives
A. A Good Life
In practical thought, we are often concerned with the quality of people’s
lives. Well-being is the measure of the success of a person’s life. When we
determine a person’s well-being, we determine how successful their life,
in whole or in part, is, has been or will be. Labour lawyers tend to be
interested in the well-being of workers in many respects. This concern is
manifested not only in those most semantically relevant laws, namely,
‘safety, health and welfare at work’ but also in their concern for fulfilment
through work, the development of meaningful and long-lasting
relationships and activities, a healthy work-life balance and remedies for
breaches of the terms of the contract of employment.
There are many different concepts of well-being—philosophical,
economical, psychological and so on. The focus of this paper is on one
philosophical concept of well-being. Within the philosophy of well-being,
2
there are, once again, numerous measures of the quality of people’s lives.
The standard taxonomy of such philosophical measures is provided by the
philosopher Derek Parfit:
“On Hedonistic Theories, what would be best for someone is what
would make his life happiest. On Desire-Fulfilment Theories, what
would be best for someone is what, throughout his life, would best
fulfil his desires. On Objective List Theories, certain things are good
or bad for us, whether or not we want to have the good things, or
to avoid the bad things.
3
There is a vast literature on the philosophy of well-being more generally: see, inter
2
alia, James Griffin, Well-Being: Its Meaning, Measurement and Moral Importance (OUP
1988); Richard Kraut, What is Good and Why: The Ethics of Well-Being (HUP 2009); Guy
Fletcher, The Philosophy of Well-Being: An Introduction (Routledge 2016); and Guy
Fletcher (ed), The Routledge Handbook of Philosophy of Well-Being (Routledge 2016).
Derek Parfit, Reasons and Persons (OUP 1984) Appendix I (emphasis as original). Cf
3
Samuel Clark, ‘Philosophical Taxonomies of Well-Being’ in Kathleen Galvin (ed), The
Routledge Handbook of Well-Being (Routledge 2018).
3
Of these possible philosophical measures of well-being, this paper
relies on an objective list theory. Objective list theories are also known as
perfectionist theories of well-being: they rely on an account of human
flourishing which is based on an objective account of the human good.
4
More specifically, this paper will focus on two objective or basic goods
amongst a range of goods which makes up a broader list of objective
goods constitutive of personal well-being, namely that of work and
community. These two goods should be understood as forming only part
of the quality of people’s lives. Naturally, a proposed justification for
labour law is likely to advocate a certain priority for these over other
goods. Nevertheless, a full exploration of the link between these goods
and others basic goods constitutive of the quality of people’s lives remains
to be completed on another occasion.
B. Work
1. Two Concepts of Work
Conceptualising work is a Herculean task and certainly cannot be
adequately or fully addressed in a short section of a paper. But some
5
rudimentary remarks for the purposes of the argument here developed
can be made. A first point to note is that seeking to define what work is
by stipulation would probably be otiose, at least in this context. It is
6
better to define work by reference to existing cultural understandings,
allowing for development and change in our understanding of the
concept. The legal and political philosopher James Nickel offers two such
definitions, one broad and one narrow. According to the former, work is
7
‘productive activity requiring effort’. Nickel suggests that this could
8
involve almost anything, from the work of householders and family
members, to growing one’s vegetables in a garden allotment or even
more conventional forms of paid labour. By contrast, on the latter
account, work occurs within, ‘some organised form of production [which
Thomas Hurka, Perfectionism (OUP 1993); The Philosophy of Well-Being: An
4
Introduction (n 2) ch 4; and Gwen Bradford, ‘Perfectionism’ in The Routledge Handbook
of Philosophy of Well-Being (n 3).
On the philosophy of work generally, see, inter alia, Henri Arvon, La philosophie du
5
travail (Presses universitaires de France 1961); Lars Svendsen, Work (2nd edn,
Routledge 2016); and the articles in (2016) 70 Revue Internationale de Philosophie
429-534.
Take the example of Herbert Applebaum, who merely enumerates a series of examples
6
of what ‘productivity’ involves: Herbert Applebaum, The Concept of Work: Ancient,
Medieval and Modern (SUNY Press 1992) ch 20.
James Nickel, ‘Is there a Human Right to Employment?’ (1978-1979) 10 Philosophical
7
Forum 149, 158-159; and James Nickel, ‘Giving up on the Human Right to Work’ in
Virginia Mantouvalou (ed), The Right to Work: Legal and Philosophical Perspectives (Hart
2014) 138.
‘Giving up on the Human Right to Work’ (n 8) 138.
8
4
is] oriented towards generating income and making a living’. Both the
9
broad and narrow accounts of work have their own problems. On the
broad account, we may have trouble finding reasons to reject certain
categories of work as worthy of social, moral or legal protection and
recognition; while, on the narrow account, we might find its
categorisation discriminatory as against other legitimate forms of labour.
Perhaps most significantly, care work could not easily be included on the
narrow account.
10
2. The Good of Work
Paid work has been the primary concern of labour law academics to date.
The focus has not so much been on the activity of work but rather on the
relational nature of that activity. In their leading contribution to labour
law scholarship, for example, Mark Freedland and Nicola Countouris begin
by seeking to first ‘identify a domain or sphere of operation for labour law
(…) and regulate the relations which exist within that domain’. Given
11
their focus on the relational nature of work, Freedland and Countouris
accordingly go on to hold that a dictionary definition of work should
suffice to justify what they describe as the ‘legal construction of personal
work relations’. Similarly, Alan Bogg argues that viewing work as an
12
activity or ‘basic good’ is deficient because it overlooks this relational
nature of labour law. Finally, in his enlightening text, Guy Davidov
13
identifies a range of values which labour law may serve: democracy;
redistribution; human rights/dignity; social inclusion/citizenship; stability/
security; efficiency; human freedom and capabilities; and emancipation/
social equality. Notice that nowhere among these is the good of work
14
included.
These reflections by some of the field’s leading scholars at first
glance seem very fair. However, from the perspective of this paper, they
require some clarification. First, it is important to understand the point of
purpose of identifying work as an objective good. As far as this author can
tell and certainly from the literature review conducted by Davidov just
noted, labour lawyers have not generally identified work as an objective
good which (in part) justifies the existence labour law. Rather, they have,
as Davidov rightly points out, focussed on the instrumental contribution of
labour law to certain normative concepts. The point, therefore, of here
identifying ‘work’ as an objective good constitutive of personal well-being
ibid.
9
Nicola Busby, A Right to Care? Unpaid Work in European Employment Law (OUP
10
2011).
Mark Freedland and Nicola Countouris, The Legal Construction of Personal Work
11
Relations (OUP 2011) 11.
ibid 32.
12
Alan Bogg, ‘Labour, Love and Futility: Philosophical Reflections on Labour Law’ (2017)
13
33 IJCLLIR 7.
Guy Davidov, A Purposive Approach to Labour Law (OUP 2016) ch 4.
14
5
is to advance the position, seemingly heretofore overlooked, that the
need to regulate the activity of work may be one of the justifications of
labour law. It is only once we have accepted this point that we may go on
to argue that labour law should regulate work qua activity for justice,
efficiency, democracy, equality and so on because these normative
concepts supervene upon the prior acceptance of the value theoretic good
of work. The point is largely a methodological one but, as I shall note in
Part III.B below, it has important implications for the value of labour law
itself.
The second point leads naturally from the first. Once it is accepted
that values come first, we are then ready to move to the normative—that
is, to what we ought to do to secure, promote and instantiate such values
in reality. It would therefore seem possible to respond to Bogg’s point that
the basic good view of work is deficient as follows. If we accept, for the
purposes of labour law’s justification, that work is one of the fundamental
values which justifies labour law, then and only then appropriate to
consider what obligations, moral and legal, if any, should be recognised to
secure that value, amongst others. With respect, then, Bogg appears to
misunderstand the proper place of value theory in relation to normative
theory, a point which Freedland and Countouris seem to impliedly accept.
Again, the point is largely a methodological one; but methodology counts
in philosophy.
C. Community
As with work, it would be otiose to expend a significant effort defining
community. Only some rudimentary attempts to define the good of work
will be provided here. So, what can be said by way of conceptualisation?
Note first that it is necessarily a participatory good. On a basic level, to be
in community is to join with others for some common purpose—to share a
hobby, a sport, religion, a political cause and so forth. We engage with
many such communities throughout our lives—sports clubs, religious
communities, political parties, trade unions, corporations and other legally
recognised corporate forms. Our freedom to choose who we spend time
with and how is largely seen as being of great significance across
cultures. We may not choose our families, but we do choose our friends
and (if possible) our colleagues.
However, we do not join all communities willingly. We are born into
particular societies and families. These are forms of community we cannot
and should not be able to choose. Such forms of community give rise to
obligations independently of choice. As Alan Bogg puts it, ‘[t]he intrinsic
value of community (…) is based on a view of citizens as social beings
encumbered by obligations of solidarity to their communities of belonging,
obligations that they have not voluntarily incurred and that they cannot
6
simply discard at will’. Cynthia Estlund has expended a significant
15
amount of scholarly effort exploring how the workplace is an important
form community in contemporary culture. According to Estlund,
workplaces are likely to be diverse due to the application of strong anti-
discrimination norms therein. This is important to ‘build connections,
trust, and norms of reciprocity and cooperation across lines of social
division and enable people to cooperate for the good of diverse
collectives’.
16
II. The Republic
A. The Ideal of Freedom as Non-Domination
While our well-being is determined by our pursuit of a range of objective
goods or options, there is a particular aspect of the concept of well-being
already delineated which stands out, namely, that of free choice of
objective goods. That is not to say that assessing the extent to which a
person’s freedom of choice over a range of options is guaranteed is the
sole measure of well-being, but it is a significant element to be taken into
account in assessing a person’s quality of life.
Now, it is important to recall that the conception of well-being relied
on in this paper is a perfectionist one: it holds that the quality of a
person’s life must be assessed from an objective viewpoint. But this
perfectionist account is a constrained one. For one, only one aspect of this
concept of well-being is freedom of choice. The account accordingly holds
that the objective good is itself pluralistic. While this does not mean that a
person may make choices in a completely unconstrained manner, what it
does mean is that people should be able to avail of a wide range of
valuable options which exemplify different virtues and are themselves
incommensurably good. Given that this paper relies on an objective list
theory of well-being, it acknowledges that there are a range of
incommensurable objective goods participation in which constitutes one’s
well-being, work and community being just two of those.
17
For many republicans, there is a particular ideal of freedom which
should be guaranteed in society. It is the ideal of freedom as non-
domination. It transcends the conceptual point that our well-being is
18
determined by our pursuit of objective goods and holds that free choice of
such objective goods in the absence of domination is an important
Alan Bogg, The Democratic Aspects of Trade Union Recognition (Hart 2009) 119.
15
Cynthia Estlund, Working Together: How Workplace Bonds Strengthen a Diverse
16
Democracy (OUP 2005) 107.
Tarunabh Khaitan, A Theory of Discrimination Law (OUP 2015) 93-95 raises similar
17
points about the perfectionism of a concept of well-being founded centrally on freedom.
On the perfectionism of this ideal, see Frank Lovett and Gregory Whitfield,
18
‘Republicanism, Perfectionism and Neutrality’ (2016) 24 Journal of Political Philosophy
120.
7
condition for pursuit of the good life. Freedom as non-domination,
‘neorepublican freedom’ or ‘republican freedom’ is distinctive both
historically and theoretically for a number of reasons, perhaps most
importantly due to its focus on non-domination and communitarian social
justice. And there is one contemporary political theorist, Philip Pettit,
19
who has developed a rich vision of the demands of freedom as non-
domination.
20
In elaborating on the ideal of freedom as non-domination, Pettit
first outlines what it is to have freedom of choice over a range of options.
According to Pettit, freedom of choice over a range of options necessitates
objective and cognitive conditions: objective, in that it is objectively
possible to make the choice; and cognitive, in that, according to one’s
own perceptions, it is possible to make the choice. He then considers
21
the types of restrictions on the options open to a person. Any factor that
can reduce your freedom of choice is a hindrance to your freedom of
choice. And there are two kinds of hindrances: generic/vitiative and
specific/invasive. Generic/vitiative hindrances restrict your freedom in a
choice generally; by contrast, specific/invasive hindrances restrict your
freedom in a choice only in respect of the specific purpose of satisfying
The literature on republicanism is broad and deep. For present purposes, see, inter
19
alia, Philip Pettit, Republicanism: A Theory of Freedom and Government (OUP 1997);
Quentin Skinner, Liberty Before Liberalism (CUP 1998); Iseult Honohan, Civic
Republicanism (Routledge 2002); Iseult Honohan and Jeremy Jennings (eds),
Republicanism in Theory and Practice (Routledge 2006); Cécile Laborde and John Maynor
(eds), Republicanism and Political Theory (Blackwell 2007); Samantha Besson and José
Luis Martí (eds), Legal Republicanism: National and International Perspectives (OUP
2009); Frank Lovett, A General Theory of Domination and Justice (OUP 2010); Philip
Pettit, On the People’s Terms: A Republican Theory and Model of Democracy (CUP
2012); Philip Pettit, Just Freedom: A Moral Compass for a Complex World (WW Norton
and Co 2014); Barbara Buckinx, Jonathan Trejo-Mathys and Timothy Waligore (eds),
Domination and Global Political Justice: Conceptual, Historical, and Institutional
Perspectives (Routledge 2015); and Iseult Honohan and Marit Hovdal-Moan (eds),
Domination, Migration and Non-Citizens (Routledge 2015).
This section draws on Philip Pettit, ‘Negative Liberty, Liberal and Republican’ (1993) 1
20
European Journal of Philosophy 15; Philip Pettit, ‘Liberalism and Republicanism’ (1993)
28 Aus tra lian Jou rnal of Pol itical Scie nce 162 ; P hili p Petti t, Freedom as
Antipower’ (1996) 106 Ethics 576; Republicanism (n 22); Philip Pettit, ‘Republican
Political Theory’ in Andrew Vincent (ed), Political Theory: Tradition and Diversity (CUP
1997); Philip Pettit, ‘Free Persons and Free Choices’ (2006) 28 History of Political
Thought 709; Philip Pettit, ‘The Determinacy of Republican Policy: A Reply to
McMahon’ (2006) 34 Phil & Pub Aff 275; Philip Pettit, ‘Republican Freedom: Three
Axioms, Four Theorems’ in Republicanism and Political Theory (n 19); Philip Pettit,
‘Freedom’ in David Estlund (ed), The Oxford Handbook of Political Philosophy (OUP
2012); On the People’s Terms (n 19); Just Freedom (n 19); Philip Pettit, ‘On the People’s
Terms: A Reply to Four Critiques (2015) 5 Philosophy and Public Issues (ns) 79; Philip
Pettit, ‘On the People’s Terms: A reply to five critiques’ (2015) 18 Critical Review of
International Social and Political Philosophy 687; and Philip Pettit, ‘On the People’s
Terms: A Reply to Bellamy, Levy and Lovett’ (2016) 44 Political Theory 697. Specifically,
this section draws heavily on the account provided in On the People’s Terms given that it
is the most detailed restatement of Pettit’s republicanism in its internal dimension.
On the People’s Terms (n 19) 26.
21
8
your will. Vitiating hindrances are therefore characterised by any factors
‘that deprive you of resources required for freedom in [a] choice, or that
limit the use to which you can put those resources, without imposing the
will of another’. Such resources may be personal (eg, illness, disability
22
or lack of skills), natural (eg, environmental) or social (eg, aggregate
consequences of independently motivated actions by others).
Specific/invasive hindrances, by contrast, constitute the imposition
of the will of another; they ‘compete with your will for control of what you
do’. Invasive hindrances are therefore considered to be particularly
23
objectionable and significant because it ‘is to be denied the very condition
by which freedom is identified: to be thwarted in making the choice
according to your will’. Indeed, it is one thing to be subjected to the will
24
of one’s employer as mediated by and through employment law; it is
quite another to be subject to the will of one’s employer without limitation
to their discretionary power. This is a point which the republican doctrine
of freedom as non-domination highlights very well. The distinction and
difference between vitiative and invasive hindrances is not, however, a
rigid one. As Pettit notes,
“the way things are organised in a society may not be the work of
will in a relevant sense and may not invade people’s choices as such
– it may be the unintended, aggregate consequences of how people
are independently motivated to act – but it can impact on free
choice in a way that is closely connected to invasion. It may
constitute a structure or pattern that facilitates the invasion by
some people of the choices available to others. It may amount to an
indirect, structural form of invasion, we might even say, as distinct
from the direct, personal form of invasion that it occasions.
25
The two types of hindrances Pettit discusses correspond to two
dimensions to freedom of choice: first, ‘the freedom that goes with the
unvitiated range of choices available’—what Pettit calls freedom of
opportunity; and, second, ‘the freedom that goes with not being invaded
by others in the exercise of those choices’—the freedom of exercise or
control. To ensure freedom of choice over a range of options, both of
26
these need to be secured; and invasive hindrances are particularly
morally significant. Invasive hindrances come in two forms: they can be
dominating or interfering. Interferences to one’s freedom of choice come
in a variety of kinds: they may involve the removal, replacement or
misrepresentation (in the form of deception or manipulation) of one or
ibid 39.
22
ibid 38-39.
23
ibid 43.
24
ibid 44.
25
ibid 45.
26
9
more options which would otherwise be available to us. To be
27
dominated, however, merely involves being subjected to the will of
another: it requires nothing more than that. It does not require
interference; rather, it may simply involve invigilation or intimidation. To
28
give an example, while it may be more morally objectionable to be
subject to a harsh master, a slave with a kind master nonetheless remains
a slave, which is morally objectionable in and of itself and constitutes a
paradigm form of domination.
Freedom, on Pettit’s terms, is therefore very broad, transcending
some traditional liberal positions on freedom, such as freedom as non-
frustration as reflected in the work of Thomas Hobbes and freedom as
29
non-interference as reflected in the work of Isaiah Berlin. It identifies
30
issues which are consistent with a concern for freedom of choice through
its identification of personal, social and environmental barriers to one’s
capacity for choice; the ability to exercise one’s capacity for freedom of
choice; the need for an adequate range of options; and the consequent
overall freedom that comes with that same range.
So much for the particular ideal of freedom that should be secured
in society; but how should it be secured? For Pettit, there are two
dimensions to people’s freedom as non-domination which political
authorities governing political communities should develop. The first,
31
which shall be c a l l ed the inter n a l dimension’, consists of a
comprehensively just society—that is, a society which is socially just and
politically legitimate. Such comprehensive justice is a matter for the
32
domestic affairs of a given society. The second, which shall be called the
‘external dimension’, concerns the relationships between political
communities—in other words, states’ foreign and international relations.
This paper now proceeds to explore both of these and their potential
relation to the goods of work and community.
ibid 50-56.
27
ibid 60-64.
28
Thomas Hobbes, Leviathan (Hackett 1994) section 2.1.
29
Isaiah Berlin, Liberty (OUP 1969).
30
‘Freedom as non-domination matters, not just in the mutual relations of individuals,
31
but in their relation to the state. And that freedom requires both the internal and
external freedom of the people’: Philip Pettit, ‘The Globalised Republican Ideal’ (2016) 9
Global Justice 47, 67.
On comprehensive justice, see John Rawls, A Theory of Justice (HUP 1971); Philip
32
Pettit, ‘Legitimacy and Justice in Republican Perspective’ (2012) 65 CLP 59; and Philip
Pettit, ‘Justice: Social and Political’ in David Sobel, Peter Vallentyne and Steven Wall
(eds), Oxford Studies in Political Philosophy: Volume 1 (OUP 2015).
10
B. The Internal Dimension: Social Justice and Political
Legitimacy
1. Social Justice
Accepting that people freely making choices from the options available to
them and thereby pursuing their own conception of the good may entail
conflict and serious disparities in social, economic and cultural power
between persons, Pettit develops a doctrine of social justice which
responds to such distributive inequalities between persons. For Pettit,
republican social justice has essentially two separate but complementary
strands: first, an account of the options which must be made available to
everyone in society; and second, the method by and manner in which
these options are to be made available.
Accordingly, what range of options need to be guaranteed for a
person to be free? For Pettit, the basic liberties—a range of options which
must be guaranteed and entrenched in any given society—are those
choices which are both co-satisfiable and co-exercisable. That is, exercise
of such choices must be capable of being equally exercisable by all
persons in a given society at any given time, and of satisfying all persons
in a given society at any given time. Thus for example, the collective
33
aspect of the co-satisfaction requirement mandates that candidate
choices for entrenchment as basic liberties are not harmful or ‘over-
empowering’, such as choices which might allow a person to ‘gain such
economic power that they are bound to dominate others in certain
contexts’. However, given that these are basic or fundamental liberties,
34
the state need only entrench those basic or fundamental choices which
are ‘the more distal and general’, ie, the most abstract expression of the
given choice. Moreover, such basic liberties are likely to vary, depending
35
on the culture, customs and conventions of a given society, and its
development over time. As Pettit notes, the basic liberties are ‘deeply
dependent on interpretative rules’. Among the basic liberties, Pettit
36
includes the ‘freedom to associate with those willing to associate with
you’, the ‘freedom to own certain goods and to trade in their exchange’
and ‘the freedom to change occupation and employment’. According to
37
Pettit, ‘let the state entrench them and it will automatically entrench all
the other choices too’.
38
On the People’s Terms (n 19) ch 2. See further Philip Pettit, ‘The Basic Liberties’ in
33
Matthew Kramer, Claire Grant, Ben Colburn and Antony Hatzistavrou (eds), The Legacy
of HLA Hart: Legal, Political and Moral Theory (OUP 2008).
ibid 99.
34
ibid 102.
35
ibid 107.
36
ibid 103.
37
ibid 102.
38
11
How are the basic liberties to be entrenched? Fundamentally, ‘the
state should entrench people’s [basic] liberties, on the basis of public laws
and norms, to the point where each is able to pass the eyeball test,
namely, to ‘the point at which each person can look at one another in
society without fear. More specifically, the level of entrenchment to be
39
secured to meet the eyeball test requires that each be provided ‘with a
[sufficient] threshold benefit in the currency of free or undominated
choice’. The level of entrenchment required is therefore sufficientarian in
40
that it requires each to be provided with sufficient resources and
opportunities to exercise their freedom of choice over the basic liberties.
41
Thus, for example, people must be provided with sufficient resources and
opportunities to exercise their freedom of choice to work. While this
sufficientarianism is consistent with widespread material and social
inequalities, same are significantly tempered by an overarching
commitment to freedom as non-domination, requiring that both direct or
personal and indirect or structural invasions to people’s freedom of choice
be eliminated. In other words, while people are only required to have
sufficient resources and opportunities to exercise their freedom of choice
over the basic liberties, meaning that some may have more choice than
others, the standard of sufficiency is itself quite demanding. As Pettit
notes, ‘[a]lthough it constitutes a sufficientarianism in the currency of
free or undominated choice, the republican theory of justice supports a
substantive egalitarianism in the currency of free or undominated
status’. In a lengthy but crucially important passage, Pettit clarifies what
42
he means by this as follows:
“The level of resources and protections required for undominated
status—the threshold of provision necessary—is determined on a
basis that takes into account the resources and protections available
to others. If the state allows excessive disparities between the
endowments of different people, then the less well off are unlikely
to be able to attain that threshold. It is true that equality in status
freedom—equality, as we may say, in freedom as non-domination—
is consistent with differences of private wealth and power and with
corresponding differences in resources and protections. But still the
ideal imposes severe constraints on how large or pervasive those
differences can be allowed to be.
43
ibid 87.
39
ibid 88.
40
ibid 80-81, 87-88, citing Harry Frankfurt, ‘Equality as a Moral Ideal’ (1987) 98 Ethics
41
21. See also Rudolf Schuessler, ‘Sufficientarianism and the Measurement of
Inequality’ (2019) 6 Moral Philosophy and Politics 147.
ibid 88.
42
ibid 90. Pettit has confirmed the accuracy of this account in correspondence with the
43
author (on file).
12
In addition, Pettit suggests three particular methods for
entrenchment: infrastructural programmes, insurance programmes and
insulation programmes. Pettit envisages infrastructural programmes of
three kinds: investing in education to develop people’s skills; establishing
a functioning institutionalised normative order (ie, a legal system
consisting of, inter alia, the law of torts, contract and criminal law); and
developing economic and social policies which are ecologically
sustainable. In respect of insurance programmes, people should benefit
44
from ‘social security, medical security and judicial security, whether by
means of a system of social insurance, national health and legal
assistance, or by any of a number of alternatives’. Finally, according to
45
Pettit, insulation programmes should protect those in positions of
vulnerability in society, such as a person in an abusive relationship, or an
employee in her relationship with her employer. Insulation initiatives
which are likely to be necessary in such situations to counterbalance the
obvious imbalance of power in an employment context include
unionisation, the right to strike, and, more generally, the ‘supportive
norms of civil society’.
46
So much for republican social justice in general; how does it
specifically relate to the values of work and community? As Pettit puts it,
‘in a well-functioning labour market (…) no one would depend on any
particular master and so no one would be at the mercy of a master: he or
she could move on to employment elsewhere in the event of suffering
arbitrary interference’. However, for Pettit, a well-functioning labour
47
market is characterised by a number of important assumptions:
imbalances of property and power do not necessarily permit domination in
market exchanges; market exchanges are subject to anti-discrimination
norms; and market exchanges in which a person accepts or risks
domination are prohibited. These assumptions suggest that labour
markets in the republic will only be permitted where they are subject to
quite a significant degree of regulation designed to minimise actual or
potential domination as well as associated wrongs, such as exploitation.
48
Whether such regulation will be by law or collective agreement is left
undetermined at this point. Pettit even goes so far as to suggest that
there ought to be a right to a basic income, reasoning therefor as follows.
First, ‘[i]f I am not assured a basic income, there will be many
areas where the wealthier could interfere with me at tolerable cost,
ibid 110-112.
44
ibid 112.
45
ibid 115.
46
Philip Pettit, ‘Freedom in the Market’ (2006) 5 Politics, Philosophy and Economics 131,
47
142.
On the relationship between exploitation and domination, see Fausto Corvino,
48
‘Republican Freedom in the Labour Market: Exploitation without Interpersonal
Domination’ (2019) 66 Theoria 103.
13
without their being confronted by legal prevention of that interference’.
49
Second, in conditions of severe economic scarcity, when workers may
struggle to demand a decent wage, ‘one’s ability to leave employment
and fall back on a basic wage available unconditionally from the state’
would provide proof against the arbitrary will of employers. Pettit
50
therefore envisages strong state intervention as necessary to guard
against the evil of domination. Notice, however, that he does not
prescribe a particular economic system. Rather, arguments need to be
made on the basis of reasons which are consistent with the values of
work, community and non-domination. Some scholars have explored
these reasons in further detail than can be discussed here, concluding
that it is likely that Pettit’s republicanism entails a rejection of both
market capitalism and state socialism, instead endorsing a property-
51
owning social market economy regulated by a democratically controlled
state; and it is to this latter requirement which I now turn.
2. Political Legitimacy
The doctrine of social justice explicated above generally focussed on
horizontal relations, viz, relations between people in a republic but it did
not consider vertical relations, viz, relations between people and the
state. As Pettit rightly notes, a just society may be politically illegitimate
and an unjust society may be politically legitimate. Justice and legitimacy
come apart this way and need to be considered separately. While people
may not approve of the state and its laws, the state nonetheless claims
the right to rule and levy coercion over its citizens. Accordingly, the
question arises, what makes a sovereign republic legitimate? As with the
justice of the republic, the answer for Pettit lies in the state’s pursuit of
freedom as non-domination for its citizens. But how can citizens of a state
be free and yet subject to the coercive forces of the state? Under some
rival conceptions of freedom, such as Isaiah Berlin’s conception of
freedom as non-interference, the state’s use of its coercive power
necessarily interferes with people’s freedom: as Pettit puts it,
“interfering with a choice may involve intentionally replacing,
removing or misrepresenting any of the options, preferred or
unpreferred, by which the choice is defined. That means that all
laws take away from the freedom of subjects in at least some of
their independently available choices.
52
Philip Pettit, ‘A Republican Right to a Basic Income?’ (2007) 2 Basic Income Studies 1,
49
5.
ibid.
50
On the uncertainty of the demands of contemporary republicanism for economic
51
systems, see Stuart White, ‘The Republican Critique of Capitalism’ (2011) 14 Critical
Review of International Social and Political Philosophy 561.
On the People’s Terms (n 22) 149.
52
14
How does the republican ideal of freedom as non-domination
compare? Recall that domination is a necessary and sufficient condition
for a reduction of a person’s freedom. Recall further that domination is
53
characterised by submission to the arbitrary will of another. However, ‘if
there is no domination involved, freedom is not reduced in the presence
of either interference or frustration’. This offers an alternative possibility
54
of legitimacy to that of freedom as non-interference: if that potentially
arbitrary will is controlled, then there will be no domination; and an
absence of domination entails that one’s freedom is not reduced. It merits
quoting Pettit on this point at length:
“if the people governed by a state control the interference practised
by government – if they control the laws imposed, the policies
pursued, the taxes levied – then they may not suffer domination at
the hands of their rulers and may continue to enjoy their freedom in
relation to the state. A state that was suitably controlled would be
legitimate in the required sense of not exercising domination over
its people. It would practise interference, for sure – think about how
frustrating laws and taxes can be but it would only interfere with
them on their terms, not at its own will or pleasure.
55
Accordingly, the point of political legitimacy in the republican
account of freedom becomes clear, namely, ‘to ensure that you and your
fellow citizens are not subject to an alien, controlling will, despite that fact
that there may be a good deal of discretion exercised by those in
power’. But to what extent do people need to control the state to ensure
56
that it secures their freedom as non-domination? For Pettit, there are
three requirements of popular control, namely, that it be individualised,
unconditioned and efficacious. As to the first, ‘[a] system of popular
control will be individualised insofar as it gives a comparable role to each
of the individuals involved in the exercise of control’. This entails that
57
each should be given an equal share in a system of joint control over the
state. However, as the second element clarifies, the system of joint
control over the state must enable people to ‘enjoy a directive influence
over government that is based on the resistive character of the society,
not on the goodwill of government or of any other agency’. Finally,
58
popular control must not be merely individualised and unconditioned: it
must be ‘effective or efficacious enough to impose a popular direction on
ibid 152.
53
ibid.
54
ibid 153. See further Philip Pettit, ‘The Control Theory of Legitimacy’ in Wojciech
55
Sadurski, Michael Sevel, Kevin Walton (eds), Legitimacy: The State and Beyond (OUP
2019).
ibid 177.
56
ibid 168.
57
ibid 174.
58
15
government that nullifies the intrusion of alien will’. The resulting
59
system of joint control must ultimately satisfy the ‘tough luck’ test,
namely, an intuitive test, like the eyeball test, which ensures that people
in a sovereign republic will ‘have good grounds to think that any
unwelcome results of public decision-making are just tough luck’. The
60
political legitimacy of a sovereign republic will, in other words, turn on the
kratos—or control—the demos—or people—have over the state and its
actions. It will result in a republican theory of democracy. What the
detailed requirements of the institutions of a democracy must look like is
left for discussion on another occasion.
But what are the implications of this analysis for the basic goods of
work and community? Republican political legitimacy demands that the
law and norms of the state are established in a democratic manner. They
must not be arbitrary or capricious; they must guarantee the basic
liberties at all levels of society; and be, ultimately, subject to the people’s
control. This may entail the development of laws and norms by the state
which, for example, regulate the extent to which certain socio-economic
and political actors, such as over-powered corporations or trade unions,
can influence the state in its law-making capacity; judicial review of
administrative action affecting the goods of work and community, such
61
as administratively-established norms regulating workplace health and
safety as well as the conditions for trade union composition, elections and
strike-balloting; and collectively chosen regulation of the labour market in
a manner consistent with obligations of social justice.
C. The External Dimension: Sovereign Freedom
So much for the internal dimension of a commitment to republican
freedom; but what does republicanism require on a global scale?
According to Pettit, a very similar analysis operates on a global level.
62
Freedom as non-domination between states requires that ‘sovereign
liberties’—the correlative of basic liberties within a state—be drawn up by
the international community. Pettit does not offer a list of these as he
ibid 175.
59
ibid 177.
60
On the possibility of republican judicial review, see ‘Iseult Honohan, ‘Republicans,
61
Rights and the Constitution: Is Judicial Review Compatible with Republican Self-
Government?’ in Samantha Besson and José Luis Martí (eds), Legal Republicanism:
National and International Perspectives (OUP 2009); and Tom Hickey, ‘The republican
core of the case for judicial review’ (2019) 17 I•CON 288, 300.
Philip Pettit, ‘A Republican Law of Peoples’ (2010) 9 EJPT 70; Just Freedom (n 19) ch
62
6; Philip Pettit, ‘The Republican Law of Peoples: A Restatement’ in Domination and Global
Political Justice: Conceptual, Historical and Institutional Perspectives (n 19); and ‘The
Globalised Republican Ideal’ (n 31). See also Cécile Laborde, ‘Republicanism and Global
Justice: A Sketch’ (2010) 9 EJPT 48; Julian Culp, Tamara Jugov, Miriam Ronzoni and
Laura Valentini, ‘Global Justice and Non-Domination’ (2016) 9 Global Justice i; and Cécile
Laborde and Miriam Ronzoni, ‘What is a Free State? Republican Internationalism and
Globalisation’ (2016) 64 Political Studies 279.
16
does for the basic liberties but acknowledges that they will likely include
norms on issues of shared concern, such as international trade. And such
sovereign liberties must be entrenched to the point where each can pass
the ‘straight talk test’, namely where each state ‘ought to be able to
address other peoples (…) as an equal among equals’. The sovereign
63
liberties should be entrenched through international fora, preferably
through the emergence of social norms at a global level. Such norms can
be ‘greatly strengthened’ if they are made binding but this is not a
prerequisite of their entrenchment. And it is ‘crucial’ that the sovereign
liberties be entrenched on the basis of an international rule of law,
ensuring that none occupies a special or privileged place.
64
Accordingly, for Pettit, the ideal situation is a ‘republican law of
peoples’—a world which consists of separate but equal states which hold
each other in relations of non-domination. And for Pettit, the
preconditions for such a relation surpass traditional perspectives on
international relations requiring merely non-interference between states.
The external dimension of the ideal of freedom as non-domination
demands that states be adequately resourced and not subject to the
arbitrary will of other states or regional or international institutions. The
ideal of global freedom as non-domination is therefore rich but different
from that which applies nationally—hence the ‘straight talk test’ rather
than the ‘eyeball test’ or ‘tough luck test’. As Pettit notes, it is not so
idealistic or utopian as some cosmopolitan accounts of global justice
which hold that states owe each other precisely the same obligations
which they owe their own citizens. The external dimension of freedom
65
as non-domination does not entail, for example, obligations of global
justice. Indeed, Pettit expressly acknowledges that ‘states depend for
66
their finances and capacities on the coercive taxation of their citizens and
it is not obvious that they should be permitted, let alone obliged, to use
those resources for any old cause, however meritorious’.
67
That is not to say that states owe each other nothing; it merely
means that states do not owe each other obligations of justice. Pettit is
ready to acknowledge that states can and should assist other states which
are poor or oppressed. While he avoids prescribing a concrete list of
obligations which states have in respect of other states, he does
acknowledge that states ‘ought to support global arrangements for
promoting public goods as well as avoiding public bads, whether in regard
to community health, crime prevention, commercial regulation, or simply
Just Freedom (n 19) 182.
63
ibid 185.
64
Cf Thomas Pogge, ‘An Egalitarian Law of Peoples’ (1993) 23 Phil & Pub Aff 195.
65
See Thomas Nagel, ‘The Problem of Global Justice’ (2005) 33 Phil & Pub Aff 113.
66
Just Freedom (n 19) 175. Pettit occasionally equivocates in his language between
67
social justice and ‘international justice’ but his citation of Nagel’s work suggests that his
conception of international justice is equivalent to Nagel’s understanding of
humanitarianism or human rights.
17
the promotion of mutual understanding’. So global freedom as non-
68
domination by default imposes a minimum of humanitarian obligations in
relations between states. However, that is not to say that political
communities’ humanitarian obligations will necessarily be less onerous
than their obligations of justice. Indeed, in some circumstances their
humanitarian obligations may be more onerous than their obligations of
justice would otherwise be. An obvious example would be the
humanitarian obligations which political communities owe refugees which
are at least equal to if not greater than their obligations of justice towards
their own citizens and to the citizens of other political communities.
Again, the question must be asked: what is the link between the
external dimension of republicanism and labour law? While Pettit
describes the external dimension of his theory in relatively less detail than
the internal dimension thereof, its importance is nonetheless significant
and of particular relevance for labour lawyers. The point can be
illustrated. As a sovereign republic only claims legitimacy over and
secures socially just relations for its citizens, non-citizens are, by
definition, generally excluded from the benefits (and costs) of
republicanisms’ internal dimension. To put the point more bluntly, without
an external dimension to the theory of the republic, non-citizens have no
rights. Similarly, from the point of view of the sovereign state in isolation,
refugees have no rights; indeed, refugees are, morally and legally-
speaking, no different from other non-citizens. This is a necessary feature
of single axis theories of the state, viz, theories of the state which justify
its authority over its own citizens without considering how and to what
extent it may have authority over non-citizens. Accordingly, it is only by
virtue of this external dimension that we can begin to justify the labour
rights of non-citizens.
Returning to the labour law-implications of the external dimension
to Pettit's republicanism, it may first be noted that the requirement that
international trade be regulated, whether by law or other non-binding
forms of regulation, at a global level may legitimise the regulation of
labour migration at a global and local level. That is to say, insofar as the
external dimension requires that international trade be regulated in some
way, it may be necessary to adopt international rules, whether binding or
not, which affect not only the relations between states but necessarily
also relations within states, such as the rights associated with trade in
persons.
However, as noted above, this must be done in a manner which, at
a minimum, is consistent with states’ human rights obligations. But, to be
clear, such human rights obligations exist not merely due to national
constitutional guarantees or the ‘basic liberties’ as entrenched therein.
Rather, on Pettit’s view, such humanitarian obligations exist by virtue of a
plurality of republics and the consequent global acceptance of interests
ibid 186.
68
18
justifying the imposition of duties on others. Pettit’s republicanism
therefore leaves states with quite a lot of wiggle room within which to
determine non-citizens’ labour rights. While they must meet international
humanitarian standards, they need not go beyond this. In this case, then,
Pettit’s external dimension would seem to fall into line with those
migration theorists who believe that non-citizens' entitlement to equal
treatment with citizens in respect of all domestic labour rights is largely a
matter of social and economic policy rather than (domestic) social
justice. Accordingly, one republican theorist, in an attempt to further
69
expand upon the external dimension of Pettit's republicanism, has argued
that the most appropriate way of treating migrants is a tiered system of
entitlement, with non-citizens’ rights increasing over time, ultimately
approximating with those of citizens. Without wishing to expressly and
70
conclusively endorse this model as the most fitting application of Pettit’s
theory, it does suggest that to instantiate the value of non-domination
requires a highly complex balancing exercise of the many complementary,
competing and even conflicting interests at play in the context of
migration.
III. Work and Community in the Republic
A. Overview
Various strands of republicanism have attracted the attention of a
significant number of leading labour law scholars in the English-speaking
world. Specifically, republicanism has been offered as a justification for
collective labour law generally, freedom of association, the right to
71 72
strike, the right to private and family life as it relates to work, the
73 74
right to be free from forced labour and as a general justification for
75
David Miller, Strangers in Our Midst: The Political Philosophy of Immigration (HUP
69
2016) 122, 124-125.
Marit Hovdal-Moan, ‘Unequal residence statuses and the ideal of non-domination’ in
70
Domination, Migration and Non-Citizens (n 19).
The Democratic Aspects of Trade Union Recognition (n 17) ch 4.
71
Alan Bogg and Cynthia Estlund, ‘Freedom of Association and the Right to Contest:
72
Getting Back to Basics’ in Alan Bogg and Tonia Novitz (ed) Voices at Work: Continuity
and Change in the Common Law World (OUP 2014).
Alan Bogg and Cynthia Estlund, ‘The Right to Strike and Contestatory Citizenship’ in
73
Hugh Collins, Gillian Lester and Virginia Mantouvalou (eds), Philosophical Foundations of
Labour Law (OUP 2018).
Virginia Mantouvalou, ‘Human Rights and Unfair Dismissal: Private Acts in Public
74
Spaces’ (2008) 71 MLR 912.
Cathryn Costello, ‘Migrants and Forced Labour: A Labour Law Response’ in Alan Bogg,
75
Cathryn Costello, ACL Davies and Jeremias Prassl (eds), The Autonomy of Labour Law
(Hart 2015).
19
employment and labour law as a whole. It is therefore appropriate to
76
provide some general reflections on the relationship between Pettit’s
republicanism and work and to consider some of these scholars’
reflections and criticisms of republican political theory as it applies to
labour law. These scholars consider a number of types of republican
political theory. Given this paper’s reliance on the republican political
philosophy of Pettit, my comments shall be on those reflections and
criticisms which address his theory as explained thus far and republican
political theory generally rather than on other specific theorists. In
addition, given the significant degree of attention paid to the republican
justification of collective labour law in the scholarship to date, this section
will primarily focus on the relationship between republicanism and the
good of work. Doing so results in a more novel contribution to the
scholarship to date insofar as this aspect of theoretical labour law appears
to have been overlooked.
This Part is structured as follows. In Part III.B, I consider whether
the ideal of freedom as non-domination is an illuminating ideal for labour
law generally by considering the extent to which people freely choose to
work. I note that at least some people are forced to work and are
therefore dominated, a fact which Pettit’s republicanism can address.
However, in acknowledging that others do freely choose to work, I identify
some important implications of Pettit’s republicanism for labour law’s
theory. Second, in Part III.C, I argue that the submission and
subordination of the worker to the employer’s authority is a form of
domination. As the domination within the employment relationship can be
captured by Pettit’s theory, it may therefore be possible that his
republican theory can go on to justify the entirety of labour law. Third, in
Part III.D, I outline, in broad terms, how guaranteeing the basic liberties
of work and community in a sovereign republic could provide a
justification for labour law, thereby alleviating the domination workers
would otherwise face. I also rebut criticisms made to date to the
possibility of justifying some particular labour laws in the light of Pettit’s
republicanism, concluding that while the entirety of labour law has not yet
been fully justified in the light of Pettit’s republicanism, this is certainly
possible in future.
See the articles in the special edition on freedom, non-domination and subordination
76
in (2017) 33 IJCLLIR 331-439; David Cabrelli and Rebecca Zahn, ‘Civic Republican
Political Theory and Labour Law’ in Philosophical Foundations of Labour Law (n 73); and
Anja Eleveld, ‘Argumentative Strategies in the Defence of Labour Law: The Promises of
Republican Theory’ in Alysia Blackman, Miriam Kullmann and Ania Zbyszewska (eds),
Theorising Labour Law in a Changing World: Towards Inclusive Labour Law (Hart 2019).
20
B. Unfreedom and Work
The first point to consider concerns the ideal of freedom as non-
domination as an illuminating ideal for labour law generally. For the
purposes of the argument of this paper, work is perhaps the primary way
in which people exercise their freedom to pursue their own conception of
the good life. People make different choices about the kind of work they
do, the hours they are willing to work and the amount they want to get
paid on the basis of their comprehensive conceptions of the good life.
Given that Pettit envisages the entrenchment of basic liberties to
associate with others, exchange goods, work and the establishment of,
inter alia, contract law to entrench these basic liberties, one might
reasonably envisage certain fundamental labour rights as necessary to
guarantee people’s freedom of choice. Furthermore, at a broad and
abstract level, the ideal ‘converges with the ideas put forward by Kahn-
Freund’, namely, that the worker’s freedom is enhanced by default rules
restraining the market and bureaucratic power of the employer. Indeed,
77
if workers are to have real freedom in their lives and in the workplace,
measures must be put in place to reduce domination as a hindrance to
their freedom of choice.
The problem with this very superficial analysis of freedom as non-
domination at work is that some people do not freely choose to work in
general, to work a certain number of hours or to get paid a certain
amount. Some people are just forced—not metaphysically but by virtue of
their circumstances—to work. The classic statement of this riposte is
made by the analytical Marxist GA Cohen who argues that some people
are forced to work because they do not have access to or control over the
means of production. While Cohen concedes that some people are not
forced to work, such as capitalists and proletarians who do have access to
the means of production, others nonetheless remain collectively unfree to
do so: some people are collectively forced to work by virtue of the
scarcity of opportunities to leave the working classes and the impossibility
of all simultaneously co-exercising and co-satisfying their freedom to
escape the need to work.
78
Now, the first question which naturally arises in the light of this
objection is whether being forced to work is conceptually equivalent to
being dominated. Is collective unfreedom equivalent to domination? It
does not seem that Cohen’s characterisation of being forced to work is
equivalent to what Pettit describes as direct/personal domination: Cohen
is not concerned with people being individually forced to work by specific
employers. Indeed, this is an account Cohen rejects: some people are not
individually forced to work but are rather unfree as a group. But it does
Guy Davidov, ‘Subordination vs Domination: Exploring the Differences’ (2017) 33
77
IJCLLIR 365, 379.
GA Cohen, History, Labour and Freedom: Themes from Marx (OUP 1988) ch 13.
78
21
seem that to be collectively unfree is equivalent to a form of indirect/
structural domination. Recall that Pettit considers vitiating hindrances to
our freedom of choice as ‘a structure or pattern that facilitates the
invasion by some people of the choices available to others’. The existing
or prior distributive pattern of resources and opportunities, such that
some lack adequate means to survive without being required to sell their
labour power, is just such a structure. To be forced to work is, therefore,
to be dominated.
For those people who are forced to work and are therefore
dominated, what use is the ideal of freedom as non-domination? How can
it account for such people’s unfreedom? The response comes in two parts.
First, it should be noted that the ideal of freedom as non-domination is
secured through ensuring that society is comprehensively just—that is,
that a sovereign state is socially just and politically legitimate. As Pettit
puts it, the ideal of freedom as non-domination ‘is a return derived from
the required pattern of resourcing and protecting choice’. And given that
79
republican social justice simply requires that people be entrenched in
respect of the basic liberties to a sufficient degree, the ideal of freedom as
non-domination is consistent with some being more or less free in some
respects than others. Second, however, and relatedly, the ideal is not
80
consistent with some having no freedom of choice at all: everyone must
be ensured at least a modicum of free choice in respect of the basic
liberties. In the context of the basic liberty to work, such freedom of
choice implies two contexts of choice: the choice to work in general and
choices made within work. Thus, for example, the ideal of freedom as
non-domination demands that people are not forced to work and instead
have other options through which to pursue their own conception of the
good. One instance of this may be the provision of a basic income which,
as Pettit suggests, could provide people with the freedom to pursue the
good outside of work. When it comes to people exercising their freedom
of choice in and through their work, the ideal of freedom as non-
domination may require that people have a range of options to choose
from when accessing work, rather than being confined to one job or, more
richly, just one area of work; that the options to work available are
morally valuable; the options to work available secure further freedom of
choice in and through work; and/or that derivative choices with the
options to work available are themselves morally valuable.
However, notice that, according to the terms of Cohen’s objection,
some people do freely choose to work. Allow me to explain. If some
people are not forced to work, then those people simply freely choose to
work. I am thinking in particular of owners of capital and those, who
On the People’s Terms (n 19) 88.
79
As some theorists have rightly recognised, in this respect freedom is a less demanding
80
value than self-realisation: see Joseph Raz, The Morality of Freedom (OUP 1986)
375-376 and John Gardner, ‘The Contractualisation of Labour Law’ in Philosophical
Foundations of Labour Law (n 73).
22
Cohen himself suggests, poor immigrants who enter the state, save up a
capital sum, invest it and live off the returns. These people and others are
not forced to work by virtue of their economic dependence on their
employer or on terms dictated to them by employers; rather, they can
reject these terms and simply choose not to work, live off their capital
sum or set up their own business and hire workers. Accordingly, if some
people are not forced to work and instead freely choose to do so, what
need is there for labour law?
In an intriguing analysis of a rival theoretical justification for labour
law, namely, the Capabilities Approach, Hugh Collins makes some
81
comments of relevance to this very issue. Collins suggests that placing an
emphasis on freedom in justifying labour law ‘renders it hard to justify
detailed mandatory laws. The whole emphasis on freedom (…) suggests
that everyone should have the opportunity to enter markets on the terms
that they choose without paternalist controls’. Given that some people
82
are not forced to work and therefore freely choose to work, Collins’
concern may seem appropriate if the ideal of freedom as non-domination
could be used to undermine protective labour standards. This concern
with freedom as an illuminating ideal for labour law generally is closely
linked to a second, namely that of justice and institutions. According to
Collins, theories which put the good prior to the right—the valuable prior
to the normative, as Pettit’s republicanism appears to according to this
paper—cannot provide a justification for labour law because they do ‘not
offer a view of what permanent institutional structures are the kind of just
arrangements that are needed to secure the basic elements of justice in a
society’.
83
The relevance of these points to this section can be stated as
follows. Pettit’s republicanism requires that each citizen in a given political
community enjoy their freedom as non-domination to a sufficient degree.
It does so by prioritising the good over the right—by defining what is right
in terms of an independently established conception of the good. Such
theories as Pettit’s are generally considered telic, as opposed to those
which are deontic. In some such telic theories, as Collins rightly notes,
laws and norms are valued only for their instrumental contribution to
freedom. Thus, it could be argued that a theory which prioritises the good
over the right in furtherance of people’s freedom supports a form of
freedom which, rather than advocating protective measures as much of
labour law currently is, rejects those where they are no longer needed. By
contrast, at least some deontic theories, in defining the right prior to the
good, value laws and norms intrinsically regardless of their actual or
empirical contribution to people’s freedom.
See generally Brian Langille (ed), The Capability Approach to Labour Law (OUP 2019).
81
Hugh Collins, ‘What Can Sen’s Capability Approach Offer to Labour Law’ in The
82
Capability Approach to Labour Law (n 81) 28.
ibid 32.
83
23
Now, there are many practical and theoretical problems with this
analysis which shall not detain us here. For present purposes, the
84
question is as follows: should worker-protective measures be maintained
when they are, empirically speaking, not necessary—when, as was
suggested above, some people freely choose to work and therefore are
not forced to do so? The argument of this paper culminates in an
acceptance of Collins’ objection. Where workers are not forced to work
and are therefore free, Pettit’s republicanism does not demand that they
benefit from traditional labour-protective standards. If people are free
from domination either in accessing work or in the workplace in the
absence of labour law, then the justification therefor falls away.
Determining whether people in relations of production, in particular, those
in employment relationships, are actually dominated will therefore be
crucial in providing a general republican justification for labour law.
These reflections clarify and reaffirm the relationship between
republican freedom as non-domination and labour law advanced in this
paper. For republicans such as Pettit, labour law is not intrinsically
valuable. Labour law’s value derives from its actual or potential
contribution to people’s freedom as non-domination at work and in
community secured in a social just and politically legitimate manner. The
account thus provided justifies labour law as being of instrumental or
constitutive value in respect of certain intrinsic or final values, such as
freedom as non-domination, work and community. It is, in other words, a
type of consequentialist ( utilitarian) justification of labour law. To this
extent, republicans like Pettit must accept Collins objection to
consequentialist justifications of labour law, namely, that they can only
justify labour law instrumentally and not intrinsically. But as the analysis
of this section suggests, it is difficult to justify labour law intrinsically in
respect of all relations of production, such as for those who actually freely
choose to work and are free at work. In such circumstances, the normal
justification for labour law appears unnecessary. But this is of course
trite; for not all relations of production are employment relations. All I
have said here merely provides a deep explanation and justification for
the well-recognised spectrum of work relations, ranging from fully
independent commercial relations to those of complete dependence and
domination.
85
A helpful analysis of these issues is provided in The Morality of Freedom (n 80) ch 5-6.
84
On which see most helpfully Paul Davies and Mark Freedland, ‘Employees, Workers
85
and the Autonomy of Labour Law’ in Hugh Collins, Paul Davies and Roger Rideout (eds),
Legal Regulation of the Employment Relation (Kluwer Law International 2000). The
differences are of degree; consequently, the normal justification for labour law in
individual cases may not stand on its own feet but remain of exclusionary value overall
for structural reasons, viz, the general justification of a particular law or area of law may
be undermined by a large and growing exception thereto.
24
C. Non-Domination and Work
One of the most important links between the ideal of freedom as non-
domination and work is to assess whether the employment relationship—
the most relevant relation of production for the purposes of this paper—is
inherently dominating. This is a crucial step in the argument in favour of a
general republican justification of labour law. Of all possible forms of work
or relations of production, only the employment relationship and the
associated status of ‘worker’ or employee’ is the gateway to the
protective measures offered by labour law. If those people who either
freely choose to or are forced to take up paid employment are dominated
within the employment relationship, then it is possible that republicanism
can go on to justify the entirety of labour law.
Naturally, labour law scholars disagree as to whether the
employment relationship is inherently dominating. David Cabrelli and
Rebecca Zahn, for example, confidently declare that the employment
relationship can undoubtedly be cast as one that is tainted by
‘domination”. While this seems like an intuitively attractive viewpoint,
86
the traditional concern of labour lawyers is with the submission and
subordination of the employee to the employer’s market and
87
bureaucratic power and so the question becomes, are submission and
88
subordination conceptually equivalent to domination?
Two scholars have engaged with this question, Guy Davidov and
Hugh Collins. For Davidov, Pettit’s ideal of freedom as non-domination is
both too broad and too narrow: too broad in the sense that ‘every market
exchange involves domination [and s]uch a broad definition cannot help
us understand, explain or justify the need for special regulations to
protect employees’; and too narrow in the sense that ‘the vulnerability
captured by the concept of subordination still exists’ even where
domination has been eliminated. Davidov’s first point seems to be
89
concerned with the difference between employment contracts and other
types of contracts. In my humble opinion, this criticisms is unfounded.
90
For, as noted earlier, it is not clear that domination is evident in all market
transactions if they are appropriately regulated by control. If the demos of
a sovereign republic choose to exercise their control over all market
transactions through regulation, then domination is eliminated and only
the risk of domination remains. But even if Davidov is right and all market
transactions involve domination, then the republican project would
David Cabrelli and Rebecca Zahn, ‘Theories of Domination and Labour Law: An
86
Alternative Conception for Intervention?’ (2017) 33 IJCLLIR 339, 345.
The famous words of Sir Otto Kahn-Freund in Paul Davies and Mark Freedland, Kahn-
87
Freund’s Labour and the Law (3rd edn, Stevens 1983) 18.
Hugh Collin s , Ma r ket Powe r, Bureau c rati c Po w e r a n d the Contr act o f
88
Employment’ (1986) 15 ILJ 1.
‘Subordination vs Domination: Exploring the Differences’ (n 77) 376-377.
89
Prof Davidov has confirmed this in correspondence with the author (on file).
90
25
nevertheless ‘baulk at accepting any degree of subjection to another’. As
91
to the residual vulnerability of subordination remaining extant due to the
narrowness of the concept of domination, Davidov argues as follows:
“Imagine that before every decision, an employer (as the power
holder) must ask its employees about their opinion and take their
views and interests into consideration. Or, to put it otherwise,
employees can effectively contest the employer’s decisions.
According to Pettit this will not be a relationship of domination. But
the vulnerability captured by the concept of subordination still
exists. Although democratic deficits are lower when employees get a
chance to voice their opinions, at the end of the day the decision is
still taken by the employer; they do not get to vote on the decision
or to choose the managers who make the decisions.
92
The point of the example is to suggest that if workers have control
over their employer, then there is no subordination; but such control,
according to Davidov, is not required by Pettit’s republicanism.
Accordingly, domination does not capture all forms of subordination and
cannot be considered conceptually equivalent to domination. However,
with respect, Davidov’s example does not establish the point. Davidov
commences by suggesting that mandating worker voice and consultation
is sufficient to eliminate domination. But if the employer retains veto
power, as Davidov goes on to suggest, then there nonetheless remains a
residual power of discretion which could possibly be exercised in disregard
of the views of workers and the needs of the business—in other words,
arbitrarily. Accordingly, domination has not been eliminated and the ideal
of freedom as non-domination would therefore capture the residual
subordination extant in the employment relationship.
In considering the potential contribution of Pettit’s value of non-
domination to labour law, Davidov rightly goes on to note that Pettit views
non-domination as an uncontrolled form of interference. Davidov
93
acknowledges that Pettit’s exploration of domination as an uncontrolled
form of power has been most prominent in relations between citizens and
the state but not relations between individuals themselves. As Davidov
94
notes, it might nonetheless be possible to argue consistently with Pettit’s
conceptualisation of domination as uncontrolled interference that
employees are subjected to domination if they lack the ability to control
the employer through worker voice and consultation rights, as noted
earlier. But, for Davidov, ‘this will still not justify or explain the multitude
of employment standards that are an important part of labour law’.
95
Republicanism (n 19) 86.
91
‘Subordination vs Domination: Exploring the Differences’ (n 77) 376-377.
92
On the People’s Terms (n 19) 58.
93
‘Subordination vs Domination: Exploring the Differences’ (n 77) 378.
94
ibid.
95
26
It is prescient to make a number of concluding reflections on
Davidov’s criticisms. First, the final point he makes, which I have just
noted, is largely a repetition of the previous point, which, as I
demonstrated, does not entail a conceptual difference between
subordination and domination. Second, Davidov’s final comments merit
emphasising the point made towards the end of Part II.A above. For
republicans like Pettit to justify labour law, the question that needs to be
asked is whether there are exclusionary reasons in favour of each and
96
every labour law. Nothing I have said thus far entails that Pettit’s
republicanism necessarily justifies the entirety of labour law as we
currently know it. Indeed, this would be an impossible claim to make
without first knowing for certain what the broader systemic demands of
Pettit’s republicanism are for the economy and society generally,
something which, as yet, remains somewhat uncertain. All I have argued
for thus far is that: (i) the general scheme of Pettit’s republicanism, with
its emphasis on the values of work, community, non-domination and
concepts of justice, democracy and sovereignty appear to respond to
some of the most general problems labour law faces; (ii) for republicans,
labour law is not intrinsically valuable and will therefore need to respond
to the empirical reality facing workers, broadly construed; and (iii) the
reasons given by Davidov rejecting non-domination as a general
justificatory value for labour law are inadequate and incoherent.
By contrast, Collins makes a much more complex and abstract
argument which merits reflection. He suggests that insofar as the contract
of employment sets up an institutionalised form of practical authority,
97
the employment relationship is not one of domination because there is no
arbitrary power being exercised by the employer:
“the institution of practical authority relies on rules to constitute it
and to place constraints on its abuse (…) [i]f that is correct,
exponents of the republican political theory of freedom and
domination make a mistake when they equate managerial discretion
with arbitrary powers (…) If [the] analysis of the concept of
subordination in terms of practical authority is correct, it is in effect
analogous to constitutional government not arbitrary dictatorships,
so there is no necessary inconsistency with the (…) value of
republican freedom, but merely a contingent risk, albeit a serious
one.
98
This is a very powerful objection to the value of non-domination as
an illuminating ideal for labour law generally. But it can be responded to
On exclusionary reasons for action, see Practical Reason and Norms (n 1) 35 et seq.
96
On institutionalised practical authority, see Andrei Marmor, ‘An Institutional Conception
97
of Authority’ (2011) 39 Phil & Pub Aff 238.
Hugh Collins, ‘Is the Contract of Employment Illiberal?’ in Philosophical Foundations of
98
Labour Law (n 73) 60.
27
quite straightforwardly and comprehensively. If such laws were not
socially just and politically legitimate as required by the internal
dimension of Pettit’s republicanism, then the employment relationship
would necessarily be one of domination insofar as that relationship would
involves being subjected to the uncontrolled will of another. Accordingly,
in the absence of labour law—a system of consensually-established and
socially just rules governing the workplace—workers would generally be
dominated in the employment relationship. To put the point another way,
but for labour law, the employment relationship would generally be one of
domination because the worker would be subject to the necessarily
arbitrary will of the employer. Pettit’s republicanism can, therefore,
provide a default but contingent general justification for labour law:
namely, if those who enter into a relationship of employment are
dominated at work or at risk thereof, then republicanism demands
worker-protective norms; and contrastively, if they are not so dominated
or at risk thereof, then republicanism rejects those very rules as
themselves dominating.
D.Republicanism and Labour Law: Critical Reflections
Cabrelli and Zahn identify a number of other strengths of republican
political theory as it may apply to labour law. First is its promotion of
99
substantive and procedural fairness. Republican political theory
emphasises social justice and political legitimacy, requiring that each has
a fair balance of resources and opportunities and that the political process
be legitimate; in other words, that the state be comprehensively just.
100
Accordingly, Pettit’s requirement that the basic liberties, such as the
freedom to work and the freedom of association, be entrenched in society
through insulation, infrastructure and insurance programmes in the laws
and norms of the state suggests that his theory could justify the
regulation of work vertically and horizontally—that is, work relations
between individuals and the state, on the one hand, and work relations
between individuals, on the other hand. This means that the full score
101
of labour protection could be justified in the light of republican political
theory, including, in particular, certain constitutional guarantees of rights
Theories of Domination and Labour Law: An Alternati ve Conception for
99
Intervention?’ (n 86); and ‘Civic Republican Political Theory and Labour Law’ in
Philosophical Foundations of Labour Law (n 73).
On the relationship between justice and work, see further Guy Davidov, ‘Distributive
100
Justice and Labour Law’ in Philosophical Foundations of Labour Law (n 73). On the
relationship between distributive justice and the law of contract generally, see, inter alia,
Hugh Collins, ‘Distributive Justice through Contracts’ (1992) 45 CLP 49; and Aditi Bagchi,
‘Distributive Justice and Contract’ in Gregory Klass, George Letsas and Prince Saprai
(eds), Philosophical Foundations of Contract Law (OUP 2014).
On the vertical/horizonal application of (in)directly effective (human) rights in private
101
law, see Hugh Collins, ‘On the (In)compatibility of Human Rights Discourse and Private
Law’ in Hans-W Micklitz (ed), Constitutionalisation of European Private Law (OUP 2014).
28
at work, such as the basic liberties themselves, the right to strike
102
(which Pettit mentions).
Cabrelli and Zahn also point out that republicanism helps to
elucidate the ‘normative scope and relational coverage’ of labour law,
justifying restrictions on employers’ powers and rights in the name of the
reduction of their ability to arbitrarily exercise their will over their
employees. This ‘normative scope and relational coverage’ implies not
103
only that republicanism can justify the inclusion of and discrimination
between workers of different categories—from fully dependent workers to
independent contractors—within labour law by virtue of the varying
degrees of domination which those people experience, but that it can also
be used to explain and justify the substantive parts of labour law, such as
minimum wage, unfair dismissal, working time and collective bargaining
norms, as well as implied terms in the contract of employment. In
104
other words, some of the most important aspects of labour law can
plausibly be justified in the light of republicanism.
While Cabrelli and Zahn have accordingly begun analysing how and
to what extent republicanism is descriptively accurate in terms of labour
law as it is presently constituted, a comprehensive or global analysis of
the normative implications of republicanism for labour law remains to be
completed. This must involve, inter alia, widely interdisciplinary
105
analyses of the extent to which present and future labour standards
actually minimise domination and the risk thereof in the lives of workers.
The difficulty of this task should not be underestimated: republicanism
will only legitimise specific worker-protective laws and norms when an all-
things-considered assessment of the relevant reasons at play justify
same. This implies that an assessment must be made of all of the
possible sources of domination operating in both directions, namely,
domination which affects workers individually and systemically as well as
the potential domination which employers may face from overregulation.
This will likely be an exceptionally complex task relying on economic,
sociological and psychological data. All that can be achieved in this paper
is to outline some of the pro tanto reasons in favour of a republican
justification for specific labour laws which need to be assessed in an all-
things-considered judgment in the future.
106
On constitutional employment and labour law, see Ruth Dukes, The Labour
102
Constitution: The Enduring Idea of Labour Law (OUP 2014).
‘Theories of Domination and Labour Law: An Alternative Conception for Intervention?’
103
(n 85) 350-352.
‘Civic Republican Political Theory and Labour Law’ in Philosophical Foundations of
104
Labour Law (n 73) 116-121.
On the understanding of normative theorisation as a branch of special jurisprudence
105
implicitly relied on here, see Tarunabh Khaitan and Sandy Steel, ‘Theorising Areas of
Law’ (SSRN Paper, 15 October 2019) <https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=3464432&download=yes> (accessed 24 March 2020).
On the distinction between pro tanto and all-things-considered judgments, see WD
106
Ross, The Right and the Good (OUP 1930) 18-33 and Shelly Kagan’s corrective thereof in
The Limits of Morality (OUP 1989) 17.
29
Notice my language here. For Pettit, law is needed to prevent both
actual and potential domination. This means tackling domination where it
is in place and also pre-empting it arising. The complex relationships in
the workplace (and elsewhere) are dynamic, not static. Allow me to
107
illustrate by reference to a contemporary development in labour law.
There is now a significant amount of empirical research which suggests
that participants in the ‘gig’ economy are at serious risk of exploitation
across a range of pertinent variables (eg, working time, wage, procedural
rights, worker voice, etc). These facts give Pettitian republicans, at the
very least, strong pro tanto reason for the introduction of labour-
protective regulations. For present purposes, I cautiously say pro tanto
reasons' due to my ignorance of all the reasons at play in the gig
economy; but my own view is that the aforementioned facts do give us
reasons which have exclusionary force requiring legal intervention to
respond to the real domination such workers experience.
However, Cabrelli and Zahn’s praise is not complete; republicanism
does have its limitations. They raise four objections, namely, that it is too
individualistic and relational; too selective as a general justification; that
it creates an illusion of free consent; and that it may not be possible to
‘transplant’ the concerns of political philosophers to meet the needs of
labour lawyers. Only the first three will be outlined and responded to
here. Accordingly, as for the first objection, the authors suggest that it
may not sufficiently justify collective rights such as those which form key
parts of labour law. However, republicanism is often very abstract and
108
significant interdisciplinary assessments of social and cultural practice
may be necessary to apply it to real life situations. As suggested in the
preceding two paragraphs, republicanism leaves a great deal of what can
be described as ‘deliberative space’ within which to consider and apply
their principles to real-life situations. Republican political philosophy is no
different from any other in this respect. It requires that a reason-weighing
process be undertaken when applying its concepts to real situations.
Moreover, the fact that republican political philosophy focuses so centrally
on the reduction of arbitrary power suggests an approach based on
reason. Normative, reason-based arguments can therefore be made
within this deliberative space to develop and design more specific
normative responses to real-life problems.
A second criticism of Cabrelli and Zahn is that the ideal of freedom
as non-domination is too selective as a general justification for labour
law: ‘the adoption of selective goals for labour laws such as ‘domination’
has the potential to craft a rigid justificatory pillar for the discipline which
is unresponsive to changes in underlying social, economic and political
I am grateful to David Prendergast for helping me to more accurately articulate this
107
point.
‘Theories of Domination and Labour Law: An Alternative Conception for Intervention?’
108
(n 86) 360.
30
conditions’. Recall, however, the distinction drawn between theories
109
which prioritise the good over the right and those which prioritise the
right over the good. It was suggested that the former theories maintain a
degree of flexibility which the latter do not have. Thus, it was said, the
justification of labour law offered by Pettit’s republicanism is contingent
on the existence of actual or potential domination in the employment
relation. If there is domination, then labour law is justified; if there is no
domination, then there is no need for labour law. It was suggested that
there is an inherent risk of domination in the employment relationship
and, accordingly, certain paradigmatic aspects of labour law can be
justified by republicanism. It was also suggested that certain emerging
developments, such as the gig economy, may require labour-protective
regulation, something which it is likely Pettit’s republicanism can justify.
The point that needs to be emphasised at this stage is that republicanism
demands the reduction of domination whatever its form; contra Cabrelli
and Zahn, it therefore can ‘change with the times’.
The third and final criticism of Cabrelli and Zahn to be dealt with
here is what they describe as free consent: ‘the wage-labourer, having
submitted to a state of domination and traded independence in return for
security and continuity of work, must accept his/her lot’. In other
110
words, ‘the worker’s freely given consent to domination is sufficient to
relieve the state from passing protective laws’. However, as it was
111
argued earlier, the employment relationship entails an inherent risk of
domination which necessitates intervention by the state in the form of
worker-protective regulation and/or collective bargaining to secure the
freedom as non-domination of workers. This objection, then, is also
unfounded.
Another important source of criticism comes from Bogg, who makes
two salient points. The first concerns the link between the ideal of
112
freedom as non-domination and the right to strike. According to Bogg,
Pettit’s views on the operation of the right to strike are in violation of ILO
standards. For Pettit, it is legitimate to use criminal sanctions against
trade unions for abusing their powers. Other prior compliance-inducing
measures are envisaged, such as compulsory arbitration. This reflects the
point, made previously, that if there is no domination, then the
justification for labour law falls away; and in some cases, even trade
unions can be dominating. However, this violates art 3 of the
113
Convention on the Freedom of Association and Protection of the Right to
Organise 1948 (No 87) which permits compulsory arbitration only in the
case of strikes affecting ‘essential services’, which is itself restrictively
ibid 361.
109
ibid 362.
110
ibid.
111
Alan Bogg, ‘Republican Non-Domination and Labour Law: New Normativity or Trojan
112
Horse?’ (2017) 33 IJCLLIR 391.
See my example of this in ‘The Right to Work in Irish Law’ (2020) 42 DULJ 119.
113
31
defined. While this is a significant problem for Bogg, as he admits, it is
not necessarily a ‘fatal objection’ to Pettit’s position given that it is open
to Pettit to claim that the international legal order is wrongly or
inappropriately constructed. Bogg’s second point is that Pettit’s
114
understanding of the contract of employment is incorrect, misconstruing it
as a ground of domination rather than, as is often the case, a source of
stability for workers and a way of channelling obligations and risks.
115
However, this criticism is unfair given that Pettit’s comments on the
contract of employment are made in the context of an appeal to socialists
for support of the doctrine of freedom as non-domination, referring
specifically to the historical context of the emergence of wage labour in
the nineteenth century, something which Bogg acknowledges as
116
historically accurate.
117
A final source of criticism comes from Keith Breen who claims that,
for republicans, what is ultimately required to counter workplace
domination is a free market exchange underwritten by an effective right
of exit that grants workers bargaining power in negotiating labour
contracts’. Now while it is true that some republicans, such as Pettit,
118
advocate the establishment of markets in labour, as was noted earlier,
these markets are not simply unregulated or regulated in a minimalistic
fashion. Moreover, Pettit’s republicanism requires that the basic liberties
be entrenched in the law and norms of a politically legitimate sovereign
state. The basic liberties include not only the good of work but also the
good of community. It follows that, inter alia, collective labour law could
also be justified to all its extents: collective bargaining; worker
consultation; and the right to strike.
Breen goes on to advocate greater worker voice in and control of
firms which, he claims, are inconsistent with Pettit’s republicanism for
three reasons. First, Pettit has an ‘excessively narrow understanding of
economic domination’. The paragraph which preceded this entails the
119
rejection of this argument. Second, Pettit fails to address the arbitrary
interference to which employees are exposed within the employment
relationship. Collins’ argument concerning the employment relationship
120
as an institutionalised form of practical authority and my response thereto
refutes this argument. Finally, Breen believes that Pettit’s advocacy of a
universal basic income is insufficient insofar as it does not entail a
commitment to a ‘living’ basic income as opposed to one which is merely
‘Republican Non-Domination and Labour Law: New Normativity or Trojan Horse?’ (n
114
112) 405.
ibid 406-409.
115
Republicanism (n 19) 140-143.
116
‘Republican Non-Domination and Labour Law: New Normativity or Trojan Horse?’ (n
117
106) 406.
Keith Breen, ‘Non-Domination, Workplace Republicanism and the Justification of
118
Worker Voice and Control’ (2017) 33 IJCLLIR 419, 424.
ibid 424-426.
119
ibid 426-428.
120
32
designed to facilitate workers’ transition between jobs. But this is not
121
the case: Breen cites no source for Pettit’s view on this—he merely
assumes the point.
As has been noted, it must be remembered that the question in
each and every case will be whether a given law and/or norm contributes
to the minimisation of domination in people’s lives. In principle, there is
no objection from Pettit republicanism to measures of worker voice in and
control of firms provided that they do not dominate capital. Whether they
do so will likely involve a complicated socio-economic analysis. Insofar as
Pettit does advocate the establishment of markets, the widespread
emergence of workers cooperatives may serve to structurally undermine
them; to that extent, they would be inconsistent with Pettit’s general
122
preference for markets. But Pettit’s republicanism can nonetheless
facilitate the emergence of a significant worker-controlled space within a
market economy provided that it does not dominate all market
transactions.
There is an oft overlooked aspect of Pettit’s republicanism which
merits attention, namely, the implications of the external dimension for
the regulation of the goods of work and community. While admitting the
fairly sparse requirements Pettit currently envisages, global cooperation in
respect of international trade, as he suggests, may justify the facilitation
of international trade in persons—that is, the movement of persons
between free states, thereby requiring the transnational or international
regulation of labour, at least to some extent. Moreover, the mere fact that
Pettit’s republicanism has internal and external dimensions suggests the
need to regulate migration in a manner which is at least consistent with
states’ human rights obligations. This author is only aware of one other
theorist who offers such a comprehensive theory of justice in and
between states (John Rawls) and his writings in this respect have not
been assessed for the extent to which they can justify the law of labour
migration.
Conclusion
In this paper, I have attempted to carefully and respectfully make the
following argument. First, in Part I, I argued that people pursue the good,
inter alia, by working and entering into community with one another. But
there is another aspect of the good which has become popular again in
recent years. It is the republican ideal of freedom as non-domination. It
ibid 428-430.
121
This point is made in History, Labour and Freedom (n 78) 276-278. Cf David Miller,
122
Market, State and Community: Theoretical Foundations of Market Socialism (OUP 1989)
who advocates the establishment of co-operatives, funded primarily by publicly-owned
investment firms, which operate within a market economy. However, Miller recognises
(at 12-13) that, in many industries, the most realistic situation is one in which different
enterprise forms co-exist.
33
transcends the conceptual point that one’s well-being is determined by
the pursuit of objective goods and holds that free choice of such goods in
the absence of domination is an important condition for pursuit of the
good life. The particular perfectionist approach to justifying labour law
advanced in this part of the paper has not been adopted in the labour law
scholarship to date, nor have some of its methodological implications
been clarified or understood, uncertainties and errors which I correct.
Second, the question then arises as to how we can guarantee
people’s freedom at work and in community. In Part II, I stated that the
answer Philip Pettit’s republican normative political theory provides is to
establish a sovereign, socially just and politically legitimate state which
adopts laws and norms securing citizens’ basic liberties to work and
associate with one another generally and specifically; generally, in the
constitutional law and norms of the state; and specifically, as a sub-
system of the state’s legal system—in other words, a republican law of
work and community. Furthermore, Pettit’s republicanism requires, at the
very least, that non-citizens human rights be guaranteed and may require
that they be granted equality of treatment with citizens in respect of their
labour rights. This author is not aware of any other comprehensive theory
of justice which has been used to so justify labour law to date. This
particular fact has not yet been appreciated by labour law scholars. Nor
has such a full exposition of Pettit’s theory been provided to date,
something which is necessary to do before going on to evaluate the
theory’s relevance and justificatory force for labour law.
Third, the argument made thus far in the paper (Parts I and II)
relies on the priority of the good over the right. This has important
implications for labour law which have not been fully appreciated.
Specifically, Part III.B suggested that labour law is only instrumentally
valuable in respect of its contribution to the realisation of the goods of
work, community and non-domination. The primary problem this raises
for theorists of labour law is that the republican justification of labour law
is contingent on people in a republic actually being dominated at work or
being put at risk thereof; if there is no domination, actual or potential,
then there is simply no need for labour law. In Part III.C, I argued,
contrary to the views of some scholars, that the employment relationship
is necessarily dominating. Given that the employment relationship is the
gateway to protective labour legislation, it is then possible in principle
that Pettit’s republicanism could go on to justify the entirety of labour law.
Accepting the consequences of the argument made in Part III.B, I
argued in Part III.D that while there are certain general features of Pettit’s
theory which suggest that need to establish a system of labour law in a
republic, in the case of many areas of labour law and emerging areas of
labour law in particular, the question remains as to whether and to what
extent same serves to reduce actual or potential domination in the lives of
workers. The answer to that question will be difficult, necessitating
complex interdisciplinary analyses of the many aspects of people’s lives
34
which constitute domination—economic, psychological, social and political.
Only when an all-things-considered judgment favours intervention will
labour law be justified by the ideal of freedom as non-domination. Such a
judgment has not been reached by this paper in respect of all areas of
labour law. However, given that Pettit’s theory can certainly justify labour
law’s response to the employment relationship and that some of the
reasons identified in the literature to date that criticise the possibility of
Pettit’s republicanism justifying specific labour laws have been found
wanting, it remains the case that, in future, many more if not all parts of
labour law could be justified in the light of his theory.
Accordingly, my overall conclusion is that Pettit’s republicanism as it
presently stands offers a valuable lens through which to justify some of
the most important aspects of labour law. Much, however, remains
uncertain; it is hoped that future work by political theorists will help to
clarify some of the unanswered questions left by Pettit’s theory, such as
the particular economic system it prescribes. Once this question, amongst
others, are answered, it will then be possible to come to an all-things-
considered judgment in respect of those areas of labour law which have
not been fully addressed in this paper.
35
ResearchGate has not been able to resolve any citations for this publication.
The republican core of the case for judicial review' (2019) 17 I•CON 288, 300. Philip Pettit, 'A Republican Law of Peoples' (2010) 9 EJPT 70
  • Tom Hickey
and Tom Hickey, 'The republican core of the case for judicial review' (2019) 17 I•CON 288, 300. Philip Pettit, 'A Republican Law of Peoples' (2010) 9 EJPT 70; Just Freedom (n 19) ch 62
The Republican Law of Peoples: A Restatement' in Domination and Global Political Justice: Conceptual, Historical and Institutional Perspectives (n 19); and 'The Globalised Republican Ideal' (n 31). See also Cécile Laborde
  • Philip Pettit
Philip Pettit, 'The Republican Law of Peoples: A Restatement' in Domination and Global Political Justice: Conceptual, Historical and Institutional Perspectives (n 19); and 'The Globalised Republican Ideal' (n 31). See also Cécile Laborde, 'Republicanism and Global Justice: A Sketch' (2010) 9 EJPT 48;