Work as a Private Association?

The purpose of the three previous sections has been to explore two features of justice as fairness and to argue in defence of their plausibility. In this respect, I have argued

that we ought to arrange and distribute work in a way that protects three basic rights: the basic right against relationships of servility, the basic right to the social bases of

self-respect, and the basic right to be treated as an equal. In this section, I consider the implications of this conclusion, especially with respect to the social institutions that

ought to guide society’s arrangement and distribution of work.

3.5.1

The Importance of the Two Moral Powers

We begin with the libertarian view.50 _{This view states that the internal life of a firm – that}

is, the way in which a firm arranges and distributes work – is immune to regulation by

principles of justice. This is because a firm is a private association between individuals. At its core, the libertarian view seeks to trade upon the fact that a firm, like a private

association, is essentially a collection of individuals who privately agree to contribute to a joint enterprise.51 _{If this comparison is correct, then we have no more reason to}

regulate the internal life of a firm than to regulate the internal life of a darts team. Let me emphasise two features of this view. First, it purports to show that we

lack reasons to regulate the internal life of a firm, even when regulation is necessary to ensure that we protect the three basic rights that I have defended. Accordingly, the

libertarian view entails that firms should enjoy a moral permission to arrange their internal life in ways that involve relationships of servility, deny its workers the social

bases of self-respect, and deny its workers treatment as an equal.

Second, it is open to a defender of the libertarian view to maintain that, though

principles of justice do not regulate the internal life of a firm, there is a duty to ensure

50 _{This view is close to that described in Nozick, Anarchy, State, and Utopia. Abraham Singer also claims} that this view, or at least one similar to it, follows from Rawls’s justice as fairness. Though I do not engage directly with Singer’s interpretation, I see this section as refuting his views. See Abraham Singer, ‘The Is No Rawlsian Theory of Corporate Governance’, Business Ethics Quarterly, 25 (2015), 65-92. 51 _{Tomasi, Free Market Fairness, ch. 1.}

that certain background conditions are in place. As an example of this, a defender of the view may plausibly maintain that an employment contract is just only if all the

relevant parties give morally binding consent to that contract. This allows her to retain the theoretical resources necessary to object to forced employment, whereby a firm

coercively enslaves an individual as a worker. After all, if the principles of justice did not apply to firms at all, even this practice could not be unjust!

This characterisation of a firm, as a particular kind of private association, has some intuitive force. In particular, it takes seriously the fact that individuals have an

interest in freedom of association, and it may be set back when we regulate the internal life of a firm. Indeed, Rawls acknowledges the force of this point when, in his

discussion of whether and how the principles of justice apply to the family, he states that ‘the same question arises in regard to all associations, whether they be churches

and universities, professional and scientific associations, business firms and labour unions’.52

Having said this, we must reject the libertarian view in favour of an alternative. This is for two reasons. First, in drawing a parallel between firms and private

associations, the libertarian view mischaracterises the voluntariness of work, at least under many arrangements. In particular, though an individual typically has some say

over which firm she decides to work for, under many arrangements, she lacks the opportunity not to work at all. This is problematic for the libertarian view because it is

the voluntariness of private associations that justifies our reluctance to regulate their internal lives. One way in which to meet this objection is by asserting that we should

make voluntary an individual’s decision to enter work – that is, to work at all. On this view, we have a weighty reason to protect a right of exit, which protects the

opportunity to leave work altogether. We may be able to achieve this by providing generous entitlements to material resources to those individuals who are unemployed,

perhaps in the form of an unconditional basic income.53 _{A consequence of doing this is}

that, because work is made voluntary, firms are rendered more similar to private

associations. This justifies greater reluctance to regulate the internal life of a firm. To the extent that a defender of the libertarian view is willing to make this move, she is

immune to this first objection.54

There remains a more fundamental objection, however. Even if we ought to

treat a firm as akin to a private association, it does not follow that the firm should enjoy a moral permission to arrange its internal life in ways that involve relationships

of servility, deny its workers the social bases of self-respect, and deny its workers treatment as an equal. This is because, as Rawls notes, though principles of justice may

not regulate the internal life of a firm, they do impose certain ‘essential constraints’. Elaborating on this thought, Rawls says:

we distinguish between the point of view of people as citizens and their point of view as members of families and of other associations. As citizens we have reasons to impose the constraints specified by the political principles of justice on

53 _{Robert Van der Veen and Philippe Van Parijs, ‘A Capitalist Road to Communism’, Theory and Society,} 15 (1986), 635-56; Philippe Van Parijs, Real Freedom for All: What (If Anything) Can Justify Capitalism?

(Oxford: Clarendon Press, 1995); Karl Widerquist, Jose A. Noguera, Yannick Vanderborght, and Jurgen De Wispelaere, Basic Income: An Anthology of Contemporary Research (Chichester: Wiley-Blackwell, 2013); Stuart White, ‘The Republican Case for Basic Income’, Basic Income Studies, 2 (2007), 1-7; Williams, ‘Basic Income and the Value of Occupational Choice’.

54 _{Robert Taylor defends a view that is in some regards similar. He expresses reluctance to regulate the} internal life of firms and justifies this by appeal to the role of effective backgrounds conditions. See Robert Taylor, ‘Market Freedom as Antipower’, American Political Science Review, 107 (2013), 593-602.

associations; while as members of associations we have reasons for limiting those constraints so that they leave room for a free and flourishing internal life appropriate to the association in question.55

One justification for these constraints appeals to the idea that some interests are inalienable, such that an individual retains that interest even though she explicitly

denies this. Clarifying this aspect of justice as fairness, Samuel Freeman writes:

To say these liberties are ‘basic’ does not simply mean they are more important than others and to be given a special weight. It also means they are ‘inalienable’ – ‘any undertakings to waive or to infringe them are void ab initio’. Not only are government agents and democratic majorities precluded from violating basic liberties, but also citizens themselves cannot transfer them to others or bargain them away.56

Because of their inalienability, we retain the duty to constrain the internal life of a firm

in order to protect basic rights, even when an individual does not herself appreciate their importance. The fact that a firm is in this way like a private association is not

sufficient to justify the libertarian view, since we also have reasons to constrain the internal lives of private associations in this way.

Though Rawls says very little in defence of the claim that rights of this kind are

inalienable, we can say much more. In particular, we can appeal to the idea of self- regarding duties to support this conclusion. Self-regarding duties are duties that the

duty-holder owes to herself in virtue of her own moral importance.57 _{They most often}

arise when the cost to an individual of performing some act is very high and the

55 _{Rawls, Justice as Fairness, 165.} 56 _{Freeman, Rawls, 51.}

benefits that others accrue are very low. For example, it would be wrong for a parent to shorten her life by twenty years, say, in order to protect her child from minor

discomfort precisely because, if she were to do so, she would violate a self-regarding duty.58 _{In the same way, basic rights generate self-regarding duties. This is because the}

interests that support basic rights are very weighty (and so it is very costly to give them up), and because the benefits are giving them up are (typically) very low.

To illustrate the present point, let’s consider the basic right against relationships of servility. This basic right protects an individual’s interest in having the

capacity for a sense of justice. This interest is very important. Indeed, Rawls notes that when an individual deprives herself of her capacity for a sense of justice, she acts as

though she belongs ‘to a lower order’, as though she were ‘a creature whose first principles are decided by natural law’ rather than by reason.59 _{To appreciate the weight}

of this interest, we can consider the following case:

Crime: Kelly is in hospital, following her involvement in a sexual assault. She has temporary memory loss and cannot remember anything about the crime. She has been told about the incident, but she cannot remember whether she was the offender or the victim.60

Obviously, it would be awful for Kelly to be a victim of a sexual assault. Kelly has very weighty reasons to avoid being a victim of a sexual assault. None the less, I strongly

suspect that it is better for Kelly to be the victim rather than the offender. This suggests that our reasons to avoid (at least serious) wrongdoing are very weighty –

indeed, weightier than our reasons to avoid becoming a victim of sexual assault. This

58 _{Tadros, ‘Consent to Harm’, 30.} 59 _{Rawls, A Theory of Justice, 225.} 60 _{For this case, I thank Victor Tadros.}

helps to support the conclusion that individuals have self-regarding duties to maintain the capacity for a sense of justice, which will help to protect them from acting

wrongfully.

We can offer similar arguments with respect to the two other basic rights that I

have discussed: the basic right to the social bases of self-respect and the basic right to be treated as an equal. In each case, an individual owes it to herself to protect the

interests that justify these demands. Again, this is because the costs of giving up these interests are unduly high in comparison with the benefit they typically afford, and thus

doing so violates a self-regarding duty.61

3.5.2

Avoiding Two Errors

I shall now evaluate the implications of the conclusions so far. At this stage, I do not make any specific institutional recommendations; I leave open the issue of whether it is

better to constrain a firm directly, through the use of legal regulation, or indirectly, through the use of other institutions that predictably have the effect of guaranteeing

the protection of basic rights. My present aim is to clarify the implications of the basic rights that I have discussed and, in particular, to highlight two opposite mistakes that

we must avoid when thinking about these issues. Throughout, I focus on the implications of the basic right against relationships of servility and the basic right to the

social bases of self-respect because, as I have suggested, the implications of the basic right to be treated as an equal are much more limited.

61 _{This is controversial. Libertarians deny that there is a duty to maintain the second moral power, so too} do some liberals. For an example, see Elizabeth Anderson, ‘What is the Point of Equality?’, Ethics, 109 (1999), 287-337 at 330, where Anderson denies that there is an enforceable duty to accept aid that necessary to maintaining an individual’s status as an equal. Anderson does not defend this claim.

The first mistake is that of believing that the principle of basic liberties provides a complete, or nearly complete, account of the political principles and social

institutions that ought to guide society’s arrangement and distribution of work. According to this view, we can determine which social institutions ought to guide

society’s arrangement and distribution of work by referring almost exclusively to the principle of basic liberties. This is because, so the arguments goes, the principle is a

highly demanding one and thus only a relatively small range of social institutions are consistent with it.

This is a mistake, since it over-states the demandingness of the principle of basic liberties. The principle of basic liberties justifies neither a duty to prevent all

relationships of servility nor a duty to protect against all arrangements and distributions of work are likely to reduce confidence in an individual’s convictions. The principle’s

conclusions are much more modest than this. It justifies a duty to protect against only those servile relationships that threaten to undermine the capacity for sense of justice,

and a duty to protect the political and social conditions essential for an individual to enjoy a sufficient level of confidence in her beliefs and their importance. The principle

of basic liberties is, therefore, a sufficientarian principle that fails to address questions that arise once we have met the relevant thresholds.62

This is to claim that we can determine which social institutions ought to guide society’s arrangement and distribution of work without much reference to the principle

of basic liberties. This is because, so the arguments goes, the principle is highly permissive, and thus it is consistent with a very large range of social institutions. This

too is a mistake, since it under-states the demandingness of the principle of basic

62 _{For a statement of the appeal and the demands of sufficientarianism, see Harry Frankfurt, ‘Equality as} a Moral Ideal’, Ethics, 98 (1987), 21-43.

liberties. As I have shown in this chapter, there is a multitude of ways in which various arrangements and distributions of work can, and in the real world do, violate the

principle of basic liberties.