[In this post, William Clare Roberts responds to Matthew Dimick’s recent article in Catalyst: A Journal of Theory and Strategy. Entitled “Counterfeit Liberty”, this article is available here.]
I.
In an ambitious article in the latest issue of Catalyst, Matthew Dimick contends that the American labour movement ought to fight for certain permissive freedoms rather than fighting for the corresponding legal rights. [1] In particular, he thinks that overturning legal prohibitions against mass picketing, organizing and bargaining strikes, and secondary strikes and boycotts would not create any new labour rights, but would create “a space in which labor is free to construct its own organizations and institutions, where the labor movement can build its own hegemonic project and begin to subordinate the state to society”. [2]
I will take issue with this argument, not because I disagree with his claim that the American labour regime is overly state-controlled, but because I think Dimick forwards an identification of the law and the state that, despite its pedigree in the history of Marxism, is both analytically inapt and politically unfortunate. Building strong and autonomous labour organizations is of fundamental importance for checking both the power of capital and the power of the state. Dimick is certainly right that the source of labour’s power is its extra-legal social basis. But the law need not replace or weaken this social basis, and it is a necessary mechanism for restraining the state itself.
Dimick’s argument leans on an interpretation of Hohfeld’s analytical distinction between claim-rights and privilege-rights. [3] Dimick calls these, respectively, “rights” and “freedoms”. Since Dimick’s argument is substantive rather than interpretive, I will follow Dimick’s nomenclature. A “right”, in Dimick’s sense, is not a mere normative claim, but a legal protection covering a particular interest or action. A “freedom”, on the other hand, is a legal permission, according to which one is not prohibited from having or doing something, but neither is one’s having or doing it legally protected.
If I have a right to something, or a right to do something, in this sense, I also have a right to call upon the state to enforce my right against those who would violate or have violated it. I have a right to use my home for all legal purposes, and to exclude unauthorized persons from entering it; if you try to enter my home without permission or to prevent me from living there, I have the further right to call the legal authorities to stop you and to protect me. And because I have a right to enlist the legal authorities on my behalf to enforce my right of use and access, your interference with my contacting the authorities would also be a violation of my rights. Thus, any right implies other rights, and these all bottom-out in the right to enlist some legal authority on the rights-bearer’s behalf. [4]
Freedoms, in Dimick’s sense, do not invoke the legal authorities in the same way. If I am free to verbally communicate my manifold virtues, there is no corresponding legal duty for anyone to heed me, and I cannot get the police to compel them to do so. I do not have a right to be listened to, so I have no legally enforceable claim on others. This does not mean, however, that no legally enforceable claims are involved here. The flip side of me being free to communicate is others’ right to ignore me. If I have a freedom (but not a right) to X, then you have a right to not be X’ed by me. If you did not have such a right, then my freedom to X would become a right to X.
This is significant for Dimick’s argument. He claims that “if Jane is legally free to join a union, but the employer may discharge or demote her for such a choice, then she has the freedom but not the right to make that choice”. [5] This is true, but there is more. If Jane has the freedom but not the right to join a union, then her employer has a corresponding right to dismiss her or demote her for such a choice. The employer can call upon the police to enforce this right. It is not the case, then, that “the state plays no role in the possible dispute” between Jane and her employer. The state plays the role of backing up the rights of the parties involved; and since one of those rights is the employer’s right to fire anyone who joins a union, the state plays the role of enforcing Jane’s termination.
Overturning the legal prohibitions on mass picketing, secondary strikes, and other forms of labour action, as Dimick wishes, would be a huge victory for American labour. But this is because it is better to be permitted these actions than to have them prohibited, not because it is better to be permitted these actions than to have a legally protected right to undertake them. Dimick fudges the difference between these two comparisons because he wants to invest the distinction between rights and freedoms with more weight than it will bear, all for the sake of disparaging labour rights as the “counterfeit liberty” of his title.
II.
Dimick gets into this trouble, I think, because he does something a thousand Marxists–and socialists and anarchists–have done before him: presume that law and the state are identical. Thus, for instance, he claims that labour rights entail substituting “the law for worker collective action”, and that this is the same thing as substituting “state power for worker power”. [6] This identification, and the series of entailments it suggests, are mistaken in three important ways.
First, the law and the state are not identical because the law does not simply empower state actors to intervene on behalf of rights-holders. The law also empowers rights-holders to control the actions of state actors. That is, legal rights are one way in which citizens can command and control (i.e. regulate) the state. If a union has the right to strike, this means it has the right to command state actors to intervene on its behalf if the boss interferes with its strike action. It also means that the union has a right to command the state itself not to interfere with its strike action. Legal rights allow the rights-holder to pull the state in, and also to push the state away.
Second, the law need not substitute for collective action. Two types of cases need to be distinguished here. Dimick’s “substitution” is ambiguous as between displacement and replacement. [7] The displacement of collective action by legal remedies is not a bad thing. Indeed, it is a big part of the reason social movements fight for legal changes. When the law recognizes your right to something–voting, healthcare, abortion, etc.–then you don’t have to constantly mobilize for that anymore–counting on the legal authorities to protect your rights–and you can mobilize for other things instead. So, for instance, by making healthcare into a right, Medicare for All would make it unnecessary for unions to organize and negotiate over employer-provided health insurance. This would free up union time and resources to organize and negotiate for higher payer, shorter hours, and other concessions workers would like to win from employers. Collective action does not go away, on this scenario. Instead, it is displaced onto other fronts and fields of struggle.
Dimick conflates this inescapable fact of organizing for legal change within the context of the modern state with the wholesale replacement of collective action by legal mechanisms. Such replacements certainly happen, locally. When a movement has set a particular legal change as its final aim, or has failed to effectively follow up on a victory with a new strategy for mobilization, or has won a Pyrrhic victory which leaves its organization depleted and exhausted, then the achievement of a legal right signals the replacement of the movement by lawyers and bureaucrats. But this sort of replacement is both contingent and not specific to the winning of a legal right. It might just as well follow the overturning of a prohibition–that is, winning a freedom rather than a right.
Third, and finally, we should be careful about conflating collective action with collective power. When state action displaces or replaces the direct action of the working class on a particular issue (e.g. collective agreements are enforced by courts rather than by strikes), this does not necessarily sap the power of the working class. Certainly, the power of the working class, like a muscle, grows and develops through exercise. Unions have to stay active to stay alive and strong. But social power is not zero-sum. Gains on the side of the state are not simple, and do not entail corresponding losses on the side of organized labour.
When collective agreements are enforced legally via court action, state actors gain certain powers–of enforcement and of channeling collective disputes into the legal arena–but they also lose certain powers. Police lose a freedom of movement they previously enjoyed with regard to labour actions. The court, therefore, becomes a mechanism of oversight on state actors who might otherwise side with bosses and knock some heads.
On the other side, while the legalization of collective agreements takes certain labour actions off the table, this in no way entails a diminution of “worker power”. Workers have gained a legal power, and they have only lost a power of direct action if they already lack the power of imagination to see the myriad other struggles they might engage in.
III.
Dimick’s concerns about labour rights seem to stem from a romanticism about “self-help” as “the process by which workers constitute themselves as a class”. [8] If this means only that workers come to see themselves in it together by struggling together, I have no quarrel. But it lends itself to something more: a worker identity politics that posits the self-affirmation of the working class as the path to a post-capitalist society, and that treats the political order as a structure external to the economy (the labour-capital relation) which should be made to retreat from the economy so that the working class might directly work out for itself its destiny. [9]
Dimick tries to give this view authority by glossing Marx’s contention in the “Critique of the Gotha Programme” that “freedom consists in converting the state from an organ superimposed upon society into one completely subordinate to it”. [10] Marx’s meaning was very nearly the opposite of Dimick’s, though.
Marx never treated the law and the state as identical. This is made clear by his critique of the Gotha programme itself. Marx objected, among other things, to the Gotha programme’s call for “elementary education by the state”. Marx insists that “government and church should alike be excluded from all influence on the schools”, but also avers that “specifying the means available to elementary schools, the qualifications of the teaching staff, the subjects to be taught, etc. by a general law, as is done in the United States, and having state inspectors to supervise the observance of these regulations, is something quite different from appointing the state as educator of the people!” [11] The distinction between state interference and legal regulation is taken for granted by Marx. [12] This is understandable for someone of his intellectual and political formation, since using the law, and legal rights, to restrain the state was central to the republican tradition in Germany, France, and Britain.
Nor did Marx have any illusions about the possibility of “governing the labor market through workers’ own organizations, autonomous from the state”. [13] The basis of the capitalist labour relation is the struggle between the worker and the capitalist over the control and expenditure of labour-power. This struggle gives rise, in Marx’s view, to the necessity that the working class will “compel a law of the state, an overpowering social deterrent by which they are deterred from selling themselves and their families, by a voluntary contract with capital, into death and slavery”. [14] The law is, indeed, “the appropriate form of regulation” for labour relations under capitalism [15], because it is the necessary result of labour’s struggle against capital’s unquenchable thirst for surplus-labour. The question is not whether there will be legal regulation of labour relations, but how far the law will recognize workers’ interests.
Nothing I have written here impeaches Dimick’s comparative account of labour regimes in North Atlantic countries. Nor do my arguments tell against his preference for a Nordic model or his contention that the “highly statist” form labour relations have taken in the United States “has been inimical to the labor movement” [16], even if they tell against the grounds he adduces for those positions. These salvageable elements of Dimick’s essay do not support, however, much less demonstrate, his contention that legal rights are the devil’s temptation for the working class. The fight for freedom necessarily expresses itself as the fight for legal rights because legal rights make explicit a society’s promise that an individual or group or organization is protected against intimidation, violence, and other forms of interference. It is precisely these explicit promises of immunity that “restrict the ‘freedom of the state'”, in Marx’s words, and subordinate the state to society.
[1] Matt Dimick, “Counterfeit Liberty”, 3 (2019) Catalyst: A Journal of Theory and Strategy; available at https://catalyst-journal.com/vol3/no1/counterfeit-liberty.
[2] Dimick, 50.
[3] See Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, 23 (1913) Yale Law Journal 16.
[4] Dimick claims that the legal protection of a right means that the right-holder “may call upon the coercive power of the state to enforce that right” (49). This is not correct if “may” implies only a freedom to call upon the state. The right-holder does not merely have permission to call upon the state; the state is bound to heed the call. Otherwise, there is no effective right.
[5] Dimick, 49.
[6] Dimick, 82.
[7] Dimick uses “displacement” as a term of art to name the type of labour regime found in France and Germany. My use of the word is not meant to suggest Dimick’s use.
[8] Dimick, 72, 75.
[9] Dimick assures his readers that “some particularly fundamental labor rights–the right to join a union, for example, are of course worth protecting” (49). He never provides any argument, however, as to why we should not be just as wary of these fundamental labour rights as of sectoral bargaining rights and so on. He owes us such an account, especially since he criticizes Karl Klare for being inconsistent in his approach to “the law, as a form of social regulation” (80–81).
[10] Karl Marx, “Critique of the Gotha Programme” [1875], in Political Writings: The First International and After, ed. David Fernbach, vol. 3 (London: Verso, 2010), 339; also available (in different translation) at https://www.marxists.org/archive/marx/works/1875/gotha/.
[11] Marx, “Critique of the Gotha Programme”, 357.
[12] See also Karl Marx, Capital: A Critique of Political Economy, vol. 3, trans. David Fernbach (Harmondsworth: Penguin, 1981 [1894]), 88–89; also available (in different translation) at https://www.marxists.org/archive/marx/works/1894-c3/.
[13] Dimick, 85. Dimick seems to think this is the reality of the Nordic model.
[14] Karl Marx, Capital: A Critique of Political Economy, vol. 1, trans. Ben Fowkes (Harmondsworth: Penguin, 1976 [1876]), 416; also available (in different translation) at https://www.marxists.org/archive/marx/works/1867-c1/.
[15] Dimick, 78.
[16] Dimick, 88.
William Clare Roberts is Associate Professor of Political Science at McGill University, and author of Marx’s Inferno: The Political Theory of Capital (Princeton: Princeton University Press, 2018).
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