Rights, Freedoms, and the Law: A Reply to Roberts — Matthew Dimick

[In a post earlier this year, William Clare Roberts responded to Matthew Dimick’s recent article in Catalyst: A Journal of Theory and Strategy, available here. In the present post, Dimick responds to Roberts.]

In his Legal Form post, “On Legal Rights, Freedom, and the State: A Rejoinder to Dimick” [1], William Clare Roberts responds to my Catalyst essay, “Counterfeit Liberty”. [2] In “Counterfeit Liberty”, I addressed the issue of labour law reform in the United States. My argument was that we should pay attention to the form, not just the content, of labour law. I demonstrated how specific labour rights under US labour law have been used as legal justification by agencies, courts, and legislatures for depriving workers of the freedom to engage in various forms of collective action and for subordinating labour unions to the administrative state. [3] I also adduced the comparative and historical reasons for how and why the United States’ particularly statist form of labour law emerged. My conclusion was that the labour movement should focus on expanding labour freedoms, and be wary of labour rights.

Unfortunately, Roberts’ rejoinder is not productive, and it does little to advance the debate about labour law reform, let alone the hoary debate about “Marx and Rights” that Roberts imagines my essay to be about. As far as I can tell, Roberts never seriously contests any of the specific claims I raise in the essay. I never said anything about rights or freedoms outside the labour relations context, nor did I make any claim to generality about the specific historical and comparative mechanisms linking labour rights in the United States with the suppression of worker action and the subordination of unions. My target was statutory labour law rights, and statutory labour law rights alone.

Instead, at a far higher level of abstraction, Roberts makes a general claim that 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”. In making this claim, Roberts confuses the distinction between rights and freedoms, the relationship between rights and the state, and the relationship between society and the state. In the process, Roberts unsuccessfully attempts to reduce Marx’s politics to the republican-inspired principle of the law-restrained state. The rejoinder does more to hamper than to help the discussion about labour rights alone and rights more generally. In this reply, with the limited space I have, I try to clear up some of the confusion.

I.

Robert makes a major error early on in his rejoinder. He thinks that a person’s freedom to X means that another person has a correlative right to interfere in some way with the exercise of that freedom. That is false. In Hohfeld’s system the correlative to a freedom is a “no-right”, which in legal terms is the very opposite of a right.

This is important, because it adversely affects the entire rejoinder. Let me illustrate. In my essay, I referred to Jane Worker when elaborating Hohfeld’s legal distinction between freedoms and rights. Suppose Jane has the freedom, but not the right, to join a union. If that is the case, then her employer cannot have her be fined or thrown in jail for joining a union, but her employer can discharge or demote her for doing so: the employer has no legally enforceable claim against her joining the union, but it can interfere with Jane’s freedom by delivering a non-legal sanction. Jane would have a right to join a union if, in response to the employer’s discharge, she had a legally enforceable claim against the employer. Roberts writes: “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.”

But Roberts’ inference is in error. In fact, Roberts’ error is twofold. First, in Hohfeld’s analytical vocabulary, if Jane has the freedom to join the union, that does not give the employer a right to stop her from joining the union; all the employer has is a “no-right”–the very opposite of a right. [4] If the employer had a right to preclude Jane from joining the union, Jane would have a correlative duty not to join the union, rather than a freedom to join. Second, Roberts imputes a right to the employer’s decision to discharge Jane from the freedom of Jane’s decision to join the union. But we are in fact talking about two, legally distinct actions. And because of that distinction it turns out that Roberts has no warrant deriving an employer’s right to discharge from Jane’s freedom to join the union. In the law, the employer’s discharge decision is, in Hohfeldian terms, a freedom (but primarily a power because it ends a legal relationship). In either case, without a right either to compel Jane legally not to join the union or to terminate her for joining the union, the employer cannot call upon the police to enforce either claim. 

Roberts writes that “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”. I do not. The distinction between a freedom and a right is both weighty and valid, and Roberts’ misunderstanding can help us see why. Based on Roberts’ reasoning, if the employer only has the freedom to terminate Jane for joining the union then we would be entitled to infer that Jane’s co-workers would have the right to strike to get her rehired. If only that were the case! Unfortunately, it is not. The legal status of Jane’s co-workers’ strike to have her reinstated is a separate legal question. Supposing that a strike for reinstatement is neither protected nor prohibited, workers would have the freedom to strike to have her reinstated. Under Roberts’ interpretation, if the employer did have a right to terminate Jane, it could have the state enjoin the strike, put the workers in jail, and/or fine them for the economic damage. But because the employer only has the freedom to fire Jane, and her co-workers have the freedom to strike for her reinstatement, neither has a valid legal claim upon which they may call upon the state to compel the other to desist. My original assertion that “the state plays no role in the possible dispute” between Jane and her employer therefore stands. Just as crucial, understanding the difference between a right and a freedom is incredibly important–it makes all the different between getting Jane her job back or having workers be imprisoned for engaging in mutual aid. [5]

Because Roberts misunderstands the distinction between freedoms and rights, he fails to appreciate a whole world of legal and institutional possibilities for regulating labour relations (or any other social relation) outside of the state’s coercive power. In addition, the misunderstanding also allows Roberts to divest the distinction between rights and freedoms of the weight that it is fully capable of bearing, and the effect of that is to obscure deeply the remainder of Roberts’ discussion.

II.

Roberts gives three relatively more concrete reasons why we should use legally enforceable claims on workers’ behalf rather than simply relying on workers’ freedoms to advance their goals. None of them provide a compelling alternative to my proposal for an alternative based on labour freedoms.

First, he says that “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.” This is also incorrect. There is absolutely nothing about a right that automatically empowers the right-holder to “control the actions of state actors”, or that makes the “state … bound to heed the call”. It is quite possible to grant someone a right but to entrust or empower others, such as guardians or government officials, with the exclusive ability to enforce that right. Having a right and enforcing it are legally distinct matters. An effective right, it is said, is founded on the existence of a remedy, not the right to enforce the right. For example, in labour law, a complaint is brought by the National Labour Relations Board, not the aggrieved individual, and the Board has considerable discretion to pursue or drop a charge. Even in areas in which the law permits individuals to bring complaints on their own behalf (e.g. employment discrimination law), regulatory and enforcement agencies often have unmatched resources and discretion to pursue the claims they believe valid, even if they are not the ones deemed most important by those on whose behalf the agency putatively works. Most of those in exploited, dominated, or oppressed groups–by virtue of being exploited, dominated, and oppressed–do not have the time and resources to understand and pursue the arcane, bourgeois practice that is the law. In most cases, it would be irrational for them to assert their rights if they want to keep their jobs. This is, of course, the reason statutory schemes have erected large state bureaucracies to enforce these rights on behalf of oppressed groups–in addition to the fact that more direct worker empowerment might disrupt the capitalist’s authority in the workplace. But like any bureaucracy, once created it takes on a life of its own, pursuing agendas closer to the preferences of the agency’s occupants and of the social milieus from which they come. Do I even need to mention the massive problem of under-enforcement of legally recognized rights? Employers paying below the minimum wage, for example, is an enormous problem, stemming mostly from the fact that a right does not guarantee the rights-holder power to control state actors.

Thus, a rights scheme does not necessarily give the right-holder power to control state actors, and the vague term “control” suggests to me that Roberts, a “social republican”, is attempting to stretch the idea of law as a restraint on government actors into one of law as a direction to government actors. But a key feature of “social and economic rights”–by which I mean labour rights, employee rights, and rights against various forms of discrimination, whether it be race, gender, sexual orientation, age, ability, nationality, etc.–is that they seek not to restrain the use of the state’s violence, but to deploy that violence against other, mostly private and capitalist actors. What should not be surprising, but is surprising to Roberts, is that powerful business interests have often successfully used the right to “due process”–that most-prized right coming from the republican tradition, intended to restrain state power–to control the deployment of that violence against them.

Not only is the extension from restraint to control obscuring, but what we should be asking is whether a rights-based model of state-validated violence is better utilized for some social purposes rather than others. Using rights to protect private property is one thing, since among a myriad of other differences the rights-holder in that case typically has the means to avail herself of the legal system. (It is no accident that Roberts resorts to the home-ownership example as his benchmark case of a rights regime.) But it is quite another thing to try to transplant abstractly that system for use by the propertyless against the property holders. Thus, it is not surprising that these statutory rights have been spectacularly unsuccessful in, for example, combatting entrenched and institutionalized forms of racial discrimination, notwithstanding their success against overt bigotry [6]–and quite apart from any additional negative effects they might have of the kind I elaborate in “Counterfeit Liberty”. “But the working class cannot simply lay hold of the ready-made state machinery, and wield it for its own purposes”, and so forth. [7]

Roberts second argument is that “the law need not substitute for collective action”. He says that “displacement” need not be bad, because “[w]hen the law recognizes your right to something … then you don’t need to constantly mobilize for that anymore”. Really? Given welfare reform, austerity, the elimination by inflation of the minimum wage, the US Supreme Court’s imposition of a “right to work” in the public sector, the abolition of compulsory conciliation and arbitration in Australia I discussed in “Counterfeit Liberty”, the return of income inequality to Gilded Age levels, etc., etc., etc.–why does Roberts think that statutory claims have some magical power to make permanent hard-won working-class gains?

Conversely, Roberts never explains why he thinks my scheme of worker freedoms would result in a wasteful and repetitious mobilization for the same objectives. Precisely the function of a collective bargaining agreement is to make “permanent” the bargained-for terms. The Nordic model of labour relations, as I explained in “Counterfeit Liberty”, is constructed in large part through these “voluntary”, non-statutory governance devices. Truth be told, my argument is more vulnerable to the attack that the kind of model I propose is too stable. Strikes in post-war Sweden were remarkably infrequent, typically lower than in the United States. But then, really strong unions don’t have to strike to demonstrate their strength. And that, in many ways, is the point of demanding broader, unrestrained labour freedoms.

But aren’t collective agreements enforced by the courts? Yes and no. Since terms are not laid down in statute but determined by the relative bargaining power of the different sides, it is hard to believe that enforcement is ever purely legal. Collective action with the power to wrest concessions from the employer is already, in an important sense, “enforcing” the agreement. To the extent that there is legal (that is, court-based) enforcement, unions–in the United States as well as in the Nordic countries–have taken steps to insulate agreements from the main court systems. [8] But asking whether collective agreements are “legal” instruments is also just overly formalistic. In addition to the intricacies of enforcement, there is a world of difference between the gains embodied in a collective agreement, for example, determined by workers in their fight against employers, ratified by a vote of the workers to whom it applies, and policed by democratically accountable shop stewards; and, say, terms embodied in a wage-board award, determined by thrice-removed public officials, given legal authority without any worker assent, and enforced by petty bureaucrats.

So I do not see how statutory schemes have any inherent advantage in terms of “permanence” over my proposal for what I called the “self-regulation” of labour relations. Roberts’ third argument seems to be a corollary of the second, that “[w]hen 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 strikes) this does not necessarily sap the power of the working class”. But the specific mechanisms I identified linking rights to a weakened labour movement have nothing to do with “sapping”–although I worry that Roberts probably underestimates the role and impact of that phenomenon. Rather, I described how agencies, courts, and legislatures have used existing rights as reasons for prohibiting or curtailing specific forms of worker collective action.

When Roberts acknowledges any possibility of “replacement”, he emphasizes its “local” and non-necessary nature. Surely Roberts is right to say that “replacement”, as a socio-legal phenomenon, is contingent. At the same time, it is neither arbitrary nor random, and that is the real crux of the issue. That is the reason why I devoted a significant amount of space in “Counterfeit Liberty” to the historical and comparative context, in order to demonstrate how and why labour rights have weakened labour unions. Moreover, Roberts’ appeal to contingency seems gestural, since, by the time he arrives at his conclusion, the “fight for freedom necessarily expresses itself as the fight for legal rights”.

III.

As expressed at the outset, “Counterfeit Liberty” never ventures beyond the domain of statutory labour law. Nevertheless, it is worth pointing out some of the ways in which Roberts’ misunderstanding of rights frustrates the discussion about the relationship between rights and the state, rather than facilitating it.

For example, what are commonly referred to as “rights” are often actually “freedoms” in exactly the kind of Hohfeldian sense I propose. We commonly talk about the “right to free speech”, for instance. In fact, that “right” is actually a freedom with respect to the speaker. In the United States, spouting left-wing rhetoric at the workplace can’t get me hauled off to jail (at least not yet, anyway), but it can get me fired. I have no right to say what I think, only the freedom to do so. Free speech is also simultaneously a disability with respect to the legislature. The First Amendment of the US Constitution disables the legislature from changing the law in such a way that limits peoples’ freedom of speech. In fact, both features are expressed in the way the First Amendment is written: “Congress shall make no law … abridging the freedom of speech, or of the press … .”

The same can be said about the “right to an abortion”. Again, the US Constitution has been interpreted in a way that significantly limits federal and state governments from criminalizing certain forms of abortion. Alas, a woman’s freedom to choose stops neither protestors from picketing the abortion clinic nor cruel, unsympathetic parents from exiling their pregnant daughter, who needs an abortion, from their home. Nevertheless, this liberty has exactly the same legal status I would like to see for the kinds of strikes–secondary boycotts, organizing and bargaining strikes, and mass picketing–that I argue should not be prohibited in “Counterfeit Liberty”.

As for welfare rights, I’ll let readers and Roberts in on the dirty secret about them in the United States: they don’t exist. The US Supreme Court has never recognized a substantive right to welfare benefits of any kind. Rights to equal protection and due process do constrain somewhat the benefits the government “chooses” to provide. If the government provides a welfare benefit, it cannot grossly discriminate between who does and does not receive it; and some process is owed before benefits can be denied. But if tomorrow the federal government decided to repeal all welfare legislation, there would be no right a person could claim to prevent the government from doing so. If there are no welfare entitlements, there is neither discrimination nor denial of process in terms of who receives them. It would seem that welfare rights, too, are also freedoms–dare we say “positive” freedoms?

Perhaps the freedoms to speech, welfare, and abortion should be protected by rights. [9] The burden then shifts to Roberts to say why this should be the case. Any case he would make would demonstrate why any legal claim (freedom or right) must be an extraordinarily context-dependent and sociologically informed affair.

Consider welfare rights. A significant group of liberal and human-rights scholars contend that national constitutions should recognize various social and economic rights. Thankfully, at least, they are using the term “rights” in the correct way. Some of these arguments harken back to a theory of rights as “natural” and pre-political. But why welfare rights? What good would a right to welfare do? Would it actually reduce poverty and inequality? Would they strengthen or undermine working-class power? I honestly do not know, but I am skeptical. For one, creating a right to welfare would have the effect of empowering judicial officials to determine whether the legislature has complied with this right. But, of course, judicial officials come and go, are typically drawn from the upper classes, are typically chosen in an undemocratic way, and their ideologies shift. See, for instance, the US Supreme Court. For another, there are enormous institutional challenges in having a court tell a legislature it needs to establish or maintain a certain form or amount of welfare provision. Finally, this is just mendacious, as Marx would surely recognize. Outside of the class struggle, nothing can guarantee you a right to welfare, whether political or pre-political. If you want to improve welfare entitlements, it would be better to recognize them for what they really are: not legal rights, but economic freedoms established by the democratic class struggle.

All of this subtly is lost in Roberts’ wrecking-ball response to my essay. It is disappointing to see that Roberts, who has moved republicanism in a more radical direction, fails to push that project even further, in a way that deepens the connection between freedom and democracy and fully acknowledges the real tensions between rights and freedoms. Instead, he retreats into the narrower–and just as much liberal and libertarian as republican–tradition of using rights to guarantee freedoms. [10] The way Roberts deflates the differences between freedoms and rights, the way rights inflate the role of the state, and the way both conflate society with the state, all sound more like Rousseau than Marx: “Each citizen would then be perfectly independent of all the rest, and at the same time very dependent on the city [i.e. the state]; which is brought about always by the same means, as the strength of the State can alone secure the liberty of its members.” [11]

IV.

In his post’s concluding section, Roberts discusses the difference between the law and the state, writing that “Marx never treated the law and the state as identical”. He continues by claiming that 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”. The first point is not news; the second is obfuscating.

Roberts accuses me of doing “something a thousand Marxists–and socialists and anarchists–have done before him: presume that law and the state are identical”. First, a technical point. Marxists are as guilty of this as Roberts, but it would probably be better, and less confusing, to say that the law and the government are not identical. Governments and officials can come and go, but the state persists. That is because the state, as a legal institution, has an existence independent of those officials–though the state assuredly is not just a legal institution, and its relationship to ruling classes, whether your view is “instrumentalist” or “relatively autonomous”, is quite another matter. In that limited and specific sense, the law and the state are identical.

Second, it is also incorrect to say that all Marxists (“a thousand” sounds like a high percentage, but I’m not sure) presume that the law is identical to the state. To take just one example, here is Poulantzas: “In fact, it was only at a very late historical stage, when the capitalist State was already being constituted, that the law first appeared as a limitation upon state arbitrariness, and as a barrier to a certain form of violence.” [12]

Not only have Marxists recognized this distinction, but they–like Marx himself–are universally skeptical of the theory of the state restrained solely by law. Why? Because legal limitations on state authority are just as frequently used to restrain working-class demands as they are to restrain the arbitrary deprivations of government officials. A case in point: separation of powers is considered an important feature of the “restrained”, republican state. However, in “The Civil War in France”, Marx rejects the principle as one good for all times and places: “The Commune was to be a working, not a parliamentary body, executive and legislative at the same time.” [13] To be sure, Marx did not endorse this arrangement because of some fanatical predilection for centralized power. (Elsewhere in “The Civil War in France”he endorses a highly federated form of government.) Rather, it was to better subordinate the executive organs of the state to democratic, working-class will. Another example: an independent judiciary is also argued to be important for a state based on the rule of law. Yet Marx rejects that principle, too: “The judicial functionaries were to be divested of that sham independence which had but served to mask their abject subserviency to all succeeding governments to which, in turn, they had taken, and broken, the oaths of allegiance. Like the rest of public servants, magistrates and judges were to be elective, responsible, and revocable.” [14]

So, one achieves nothing by saying that we should distinguish the law from the state, or use the law to restrain the state. That just begs the question. In which ways should the state be restrained by law? Through separation of powers or radical democracy? By further entrenching state bureaucracies or empowering workers and their collective organizations? Should we revive the libertarian doctrine of “substantive due process” to invalidate all forms of economic and social legislation and disable the state from interfering with the “freedom to contract”? That would be a fine example of using the law to restrain the state.

I certainly have no doubt that Marx was influenced by the republican tradition. But it would be incredible to claim that that the law-restrained state, as only one way of instantiating that tradition, exhausts the full extent of Marx’s politics. This point is really the rub of Marx’s critiques in “On the Jewish Question” and the “Critique of Hegel’s Philosophy of Right”. Another way of realizing republicanism with respect to the state, and at least as important in Marx’s view, is radical democracy, just illustrated by the passages from “The Civil War in France”. [15] To claim either application of republicanism as an equivalent version of the law-restrained state is true only in the vacuous sense that all relations between state and society are legal. It is in this context that we should interpret Marx’s claim in “Critique of the Gotha Program” that “[f]reedom consists in converting the state from an organ superimposed upon society into one completely subordinate to it”. [16] To reduce this statement to the–libertarian just as much as republican–idea of the law-restrained state would be something of a bad joke. Finally, this is also why it is inaccurate to say, like Roberts, that the “question is not whether there will be legal regulation of labour relations, but how far the law will recognize workers’ interests”. That is true only insofar as “interests” also encompasses the form in which more immediate interests are realized–something I took pains to point out in my essay, but that Roberts ignores.

[1] William Clare Roberts, “On Legal Rights, Freedom, and the State: A Rejoinder to Dimick”, Legal Form (27 August 2019), available at https://legalform.blog/2019/08/27/on-legal-rights-freedom-and-the-state-a-rejoinder-to-dimick-william-clare-roberts/.

[2] Matt Dimick, “Counterfeit Liberty”, 3 (2019) Catalyst: A Journal of Theory and Strategy; available at https://catalyst-journal.com/vol3/no1/counterfeit-liberty. 

[3] Dimick, “Counterfeit Liberty”, 72–82.

[4] Wesley Newcomb Hohfeld, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning”, 23 (1913) Yale Law Journal 16, at 32–33.

[5] Now, if Jane is terminated on Friday and shows up to work on Monday anyways, the employer may have the police escort her off the premises. But this would be because of the employer’s property rights, not because the employer has a right to terminate her. Jane, in this case, would be a trespasser, which is an entirely distinct legal issue from the one we are considering. The nearly self-enforcing nature of these property rights–the employer can call the police immediately without first filing a claim with the hypothetical “Property Rights Enforcement Agency”–is just another example of how the rights model exhibits a curiously bourgeois bias.

[6] Richard Thompson Ford, “Rethinking Rights After the Second Reconstruction”, 123 (2014) Yale Law Journal 2942, at 2944; available at https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5660&context=ylj.

[7] Karl Marx, “The Civil War in France” [1871], in Karl Marx and Frederick Engels, Collected Works, vol. 22 (New York: International Publishers, 1986), 328; also available at https://www.marxists.org/archive/marx/works/1871/civil-war-france/ch05.htm.

[8] Dimick, “Counterfeit Liberty”, 60–61. In the United States, disputes arising under collective agreements are settled by “private” arbitrators, and appeals from those decisions are only possible under very limited circumstances.

[9] In the United States, the freedom of speech does become a bona fide right in more limited contexts. For example, public employees in the United States can claim a right to free speech vis-à-vis the government (but not private actors) when they are disciplined, demoted, or terminated for their speech, and their speech (1) is about a matter of “public concern”, (2) is communicated outside of official job duties, and (3) does not unduly intrude upon the government’s interest in an efficient workplace.

[10] Elizabeth Anderson, Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) (Princeton: Princeton University Press, 2017), 47. For a very nice, if brief and incomplete, discussion of the deeper relationships between freedoms, rights, and government (public and private), see Anderson, Private Government, 45–48. Anderson, a liberal republican, does not push these insights as far as a Marxist could take them.

[11] Jean-Jacques Rousseau, The Social Contract and Other Writings (New York: Barnes & Noble, 1995), 43.

[12] Nicos Poulantzas, State, Power, Socialism (London: Verso, 2000 [1978]), 76.

[13] Marx, “Civil War in France”, 331.

[14] Marx, “Civil War in France”, 332.

[15] Lest I be accused of such, I entertain no romantic notions about democratic self-governance. Marx’s democracy is certainly instrumentalist–but it is a deep and radical instrumentalism nonetheless.

[16] Karl Marx, “Critique of the Gotha Programme” [1875], in Karl Marx and Frederick Engels, Collected Works, vol. 24 (New York: International Publishers, 1989), 75, at 95; also available at https://www.marxists.org/archive/marx/works/1875/gotha/.

Matthew Dimick is Professor of Law at the University at Buffalo.