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The Lions and the Greatest Part: the Rule of Law and the Constitution of Employer Power

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Abstract

On the limited government conception of the Rule of Law, it is axiomatic that the state may only act for the public good according to law, and not arbitrarily, on pain of forfeiting its authority. That axiom is a great legacy of the seventeenth and eighteenth centuries’ anti-absolutist revolutions. The same period yielded another axiom, seldom noticed though nonetheless momentous. It is the belief, usually tacit, that the Rule of Law should not address the potentially arbitrary power of employers. This Article explores the origins of that axiom in the work of John Locke, one of the fountainheads of the limited government tradition. According to the way of seeing power that Locke propagated, there seems to be no reason to wonder whether the constitution of the modern employment relationship is hospitable to arbitrary power, in the limited government sense. Equally, there seems to be no point in asking whether the legitimacy of the employment relationship should depend upon its being constituted according to limited government constraints. However, as I demonstrate, such impressions are at odds with key moral and empirical features of Locke’s own analysis. Those tensions represent a challenge not only for Locke’s analysis, but also for the liberal Rule of Law project that Locke helped to found. It is a challenge that the tradition is yet to address.

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Notes

  1. On the origins of the limited government Rule of Law vision, see: Sempill, forthcoming; and Sempill, 2016. For leading contemporary accounts, see: Allan (2003), Allan (2013), Dworkin (1985), Dworkin (1996), Dworkin (1998).

  2. On the limited government tradition’s conception of arbitrariness, see Sempill, 2016, section V.

  3. Ibid, section IV. (i) All humans are of equal worth, and such worth is often contrasted with the supposed lesser worth of non-human animals or the inferior status of mere things. (ii) Adult humans’ natural state is one of equal liberty, meaning that we owe no natural duties of obedience to any other adult(s). Put differently, there is no natural authority amongst adults. This is often defined by contrast with the natural reciprocal duties of parents and children. (iii) All humans are equally subordinate to impersonal, moral criteria. In seeking to identify good reasons for obedience, we accept that we are constrained by criteria which have impersonal and objective force. (iv) No human has privileged access to the fundamental requirements of morality. Or, put differently, there is a presumption that most adult humans possess a faculty of reason that allows them to recognize, though perhaps not independently to discover, such requirements.

  4. For a discussion of moral equality as a key principle animating the tradition, see ibid, section IV.

  5. For an overview of the traditional conception’s main elements, see ibid, section VII.

  6. See, e.g., Dworkin (1996) and Allan (2013). Compare, e.g., Alexander Hamilton in The Federalist No 84, (1788).

  7. Three Rivers District Council v Governor and Company of the Bank of England (No. 3) (2003) 2 AC 1, p. 190 [hereinafter ‘Three Rivers]. Lord Steyn is quoting Jones v Swansea CC (1989) 3 All ER 162, p. 186. Emphasis added.

  8. Board of Regents v Roth 408 US 564 (1972), p. 489 (Justice Marshall) [hereinafter ‘BOR v Roth’].

  9. Three Rivers, p. 236 (Lord Millett) Hence: ‘[e]very power granted to a public official…’: ibid.

  10. BOR v Roth, p. 489. Consider the following dictum of a US court, which employs the term ‘arbitrariness’ without the pejorative connotations it conveys in the context of state power: the ‘arbitrary right of the employer to employ or discharge labor, with or without regard to actuating motives’ is ‘settled beyond peradventure’: Blades (1967), p. 1416, quoting Union Labor Hospital Association v Vance Redwood Lumber Co 158 Cal 551 (1910), p. 555. The doctrine of ‘at-will employment’, while no longer as common in practice, has retained a doctrinal presence in the United States common law: e.g., Weiler (1990), ch 2, pp. 48–104 and for the ‘efficiency’ justification, pp. 58–60.

  11. (1898) AC 1, pp. 172–173 (Lord Davey). Lord Davey’s remarks have taken on a renewed relevance with the rise of so-called ‘zero hours contracts’, which apply to an estimated 1.4 million workers in the UK: Williams, (2014).

  12. BOR v Roth, p. 489. Emphasis added.

  13. Arendt (1999), p. 121.

  14. BOR v Roth, p. 489.

  15. I would assert—there is not space here to offer an argument—that the existence of English law’s implied duty of trust and confidence does not require any substantial qualification of the point made in the main text: for a leading case, see Malik v Bank of Credit and Commerce International SA [1998] AC 20. However far-reaching the implied duty may seem as a matter of abstract principle, as a matter of reality, it has not reconstituted the employment relationship along anti-manipulative lines: the duty does not impose a comprehensive and readily enforceable obligation to give due weight to the morally respect-worthy interests, expectations, and rights of employees.

  16. Further, the transformation would be likely to erode the morally incoherent distinction between ‘civil and political’ and ‘social and economic’ rights. For a discussion of the moral incoherence of the distinction, see Young (2012).

  17. BOR v Roth, p. 489.

  18. Sidney (1989), ch 3, §43, p. 562.

  19. Ibid, ch 3, §5, p. 346. A contemporary formulation of the idea is offered by Sir John Laws: ‘the public decision-maker has no individual rights in his role as such’; Laws (1997), pp. 455, 466.

  20. Sidney (1989), ch 3, § 29, p. 497. For Kant on ‘offices’, see Ripstein (2009), p. 191.

  21. Sidney (1989), ch 3, §25, p. 460.

  22. Schachtman v Dulles 225 F.2d 938 (DC Cir 1955) at p. 941, cited in Goodhart (1958), p. 956.

  23. Wade (1961) p. cxv.

  24. Ibid, p. xxix-xxx.

  25. Ibid, p. xxvii.

  26. Ibid, p. 188.

  27. For Locke’s influence on English constitutionalism, see Pollock (1922), p. 80. For Locke’s influence on US constitutionalism, see McDowell (2010), ch 3.

  28. Milsom (1969), p. 8.

  29. Max Weber provides a noteworthy sketch of this dimension of economic power: ‘Formally, the market community does not recognize direct coercion on the basis of personal authority. It produces in its stead a special kind of coercive situation… The sanctions consist in the loss or decrease of economic power and, under certain conditions, in the very loss of one’s economic existence.’ Weber (1922), v1, pp. 730–731.

  30. Kahn-Freund (1949), p. 28.

  31. See main text below at n 49.

  32. On the legal dimension: Milsom (1969). On the capitalist ‘differentiation of “spheres”, especially the “economic” and the “political”’, see Wood (1995), ch 1, pp. 19–48.

  33. Wood (1995), ch 1, pp. 19–48.

  34. Berman (1983), p. 312.

  35. Milsom (1969), p. 8. Wood (2008), p 22: ‘With the rise of feudalism’, the ‘tension [between imperium and dominium] was resolved on the side of dominium, as the state was virtually dissolved into individual property.’

  36. Milsom (1969), p. 88.

  37. Ibid, p. 8.

  38. Wood (1984).

  39. Schuyler (1960), p. 151.

  40. The table is a distillation of the categories Locke employs in Locke (1689b) [hereinafter ‘Treatises’].

  41. Locke (1689b), Treatises, II §54. Compare Cohen (1999), pp. 147, 149.

  42. Farr (1986).

  43. Locke (1689b), Treatises, II §85. Emphasis in original.

  44. Locke (1689a), Essay, bk IV, ch XX, §2.

  45. Ibid. To be sure, Locke made these observations in order to make a point about intellectual obstacles facing those whose ‘opportunities of knowledge and inquiry are commonly as narrow as their fortunes’: ibid. But the epistemological significance of such remarks is not why they are germane to the present inquiry. The observations matter for present purposes because they suggest that Locke regarded the relationship of dependency-and-servility described in the main text as inevitable. I would like to thank one of the Journal’s anonymous referees who highlighted the need to include this elaboration.

  46. This is analogous to Karl Marx’s view that which ‘class’ one belongs to is determined by one’s relationship to the means of production, i.e., one’s position in what he called the ‘realm of necessity’: Marx (1894).

  47. According to Wood, Locke observed that in his day demand for day-laborers exceeded supply. This may have led Locke to assume that servants would have a choice between masters: Wood (1984). However, as a matter of limited government principle, perhaps this shouldn’t be sufficient; perhaps protection for moral equality shouldn’t be contingent on labor market conditions; on one view, a legal obligation to respect moral equality should be constitutive of the relation itself. (A similar point could be made in relation to Locke’s exhortation in favor of voluntary charitable giving as a way of relieving the needy state of economic inferiors.) As Locke places the distribution of economic resources ‘out of the bounds of society, and without compact’, and (therefore plausibly) assumes ‘an inequality of private possessions’ (Locke (1689b), Treatises, II §50), equality of bargaining power is neither a condition nor a feasible consequence of mere juridical equality.

  48. Locke (1689b), Treatises, II §186, see also II §176.

  49. Justice Higgins: Federated Engine Drivers' and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 5 CAR 9, p. 27 [hereinafter ‘FEDFA v BHP Ltd’].

  50. Karl Marx, Wage Labor and Capital quoted in Avineri (1968), p. 164.

  51. See also Weber (1922), vol 1, pp. 730–731.

  52. ‘Effective power’ refers to simply what a person is capable of choosing to do or to refrain from doing. This sense of power Locke associates with an idea of freedom as the absence of external impediment: ‘…the Idea of Liberty, is the Idea of a Power in any Agent to do or forbear any particular Action, according to the determination or thought of the mind…’: Locke (1689a), Essay, bk II, ch XXI §8.

  53. Employer y directs how the effective power of Employee x is applied: Locke (1689a), Essay, bk II, ch XXI §8. Note that on Ripstein’s account, Kant holds that a person’s ‘powers can be interfered with… by usurping them… I usurp your powers if I exercise them for my own purposes, or get you to exercise them for my purposes…. I am like the despot who uses his office for a private purpose’: Ripstein (2009), pp. 43-44.

  54. Consider F.A. Hayek's finesse in addressing this point: Hayek (1960), pp. 118–119.

  55. Quoted in Wood (1984), p. 32.

  56. Wood (1995), p. 208.

  57. Neal Wood convincingly argues that Locke’s conception of wage-labour was based on incipient English agrarian (not industrial) capitalism of which Locke was a keen observer: Wood (1984) generally, especially pp. 44, 85–92. When Locke used the term ‘servant’ in the Second Treatise, he had in mind principally the agricultural ‘day labourer’ neither the ‘servant in husbandry’ (p. 42), nor ‘token workers’ (p. 42), nor domestic servants, nor the ‘great men’s menial servants’ (p. 41). As Wood explains, Locke writes about agricultural day labourers who ‘were paid by the tenant for … labor power during a fixed period of time’ (p. 42). In my view, that Locke principally had in mind the agricultural day labourer when he spoke of ‘servants’ in the Second Treatise is evidenced by (i) the famous Turfs passage (Locke (1689b), Treatises, II §28), and (ii) his assumption that servants serve on a fixed term basis (which day labourers did) rather than on an open-ended basis (as domestic servants did). See, further, Cohen (1999), Waldron (1988), pp. 144–148, 225–232, Tully (1980), Macpherson (1962).

  58. On feudal privilege, Weber (1922), vol 1, p 843. Milsom (1969), pp. 8–11, 89–90.

  59. I am using ‘public philosophy’ in the sense employed in Sandel (1998).

  60. The reading of Locke just offered contradicts James Tully’s. According to Tully’s view, Locke ruled out wage-labour on the ground of its ineradicable involuntariness, but held that the employment relationship is legitimate if the employee has the choice not to be an employee at all: Tully (1980), pp. 136ff. However, as has been pointed out, this appears to misread Locke: Wood (1984), pp. 89, 85–92; Cohen (1999), p. 164, note 7; Waldron (1988), pp. 144–148, 225–232.

  61. See main text above at n 43.

  62. Locke (1689a), Essay, bk IV, ch XX, §2.

  63. Locke (1689b), Treatises, II §77. Emphasis in original.

  64. Why natural? Locke holds that the distribution of property and the advent of money, which allows the transcendence of the ‘spoilage condition’, are ‘given out of the bounds of society and without compact’: Locke (1689b), Treatises, II §50. See further, Macpherson (1962), pp. 208–210, Cohen (1999), p. 162. Why unalterable? Locke holds that the consent of owners would be required before an alteration may legitimately occur, and it is reasonable on Lockean premises to presume that owners would not consent to any far-reaching redistribution.

  65. Locke (1689b), Treatises, II §50.

  66. I use ‘man’ and ‘men’ and masculine pronouns in my exegesis, but not otherwise, in order to accurately record the idiom employed in the texts, and this as a reminder that the tradition generally failed until recently to insist on the moral equality of women.

  67. Locke (1689b), Treatises, II §77.

  68. They are also addressed in Sempill, forthcoming.

  69. Though a nuance is added by Macpherson: ‘If men are by nature equally rational, in the sense of equally capable of looking after themselves [as Locke holds], those who have fallen permanently behind in the pursuit of property can be assumed to have only themselves to blame’: Macpherson (1962), p. 245.

  70. According to Tully, Locke holds ‘that our ideas, and so our language, are descriptive and normative and that, with respect to the world which men make, our ideas enjoy archetypal priority’: Tully (1980), pp. 23–24.

  71. Locke (1689b), Treatises, I §42, 43; II §§ 24, 77, 85, 86, 87.

  72. Among other things, this is because Locke seeks to present all adults, including servants, as beneficiaries of juridical equality, which is a status not enjoyed by children or slaves.

  73. Pace Filmer: Locke (1689b), Treatises, I §6. Locke begins Chapter II of the Second Treatise by declaring that: ‘To understand Political Power right… we must consider what State all Men are naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man. A State also of Equality, wherein all the Power and Jurisdiction is reciprocal, no one having more than another…’: ibid II §4. Emphasis in original. And in The Conduct of the Understanding, Locke says that ‘all men are naturally equal’ (1706) III, 283 cited in Tully (1980), p. 59.

  74. See []; and [].

  75. Locke (1689b), Treatises, II §22.

  76. Locke distinguishes between two senses of rationality. The first entails seeing the law of nature and trying to comply with it. The second involves applying knowledge to the goal of increased efficacy: Taylor (1989), p. 239. For present purposes, the first requires emphasis.

  77. Locke (1689b), Treatises, II §23.

  78. Although they broadly share a conception of moral equality, there are important differences between Kant and Locke on the role of consent: Ripstein (2009), ch 7, pp. 182–231.

  79. Locke (1689b), Treatises, II §23.

  80. This is the conception of freedom that Roy Bhaskar attributes to Karl Marx: Bhaskar 2011, pp. 89–90. Surprisingly, perhaps, it fits well with Locke’s conception of freedom in the relevant context: Locke (1689b), Treatises, II §§ 4, 6, 57: ‘Free consent’, in Locke’s words, is not merely untainted by fraud or coercion, it is also ‘the direction of a free and intelligent agent to his proper interest’ (ibid II §57). See also Locke (1689a), Essay, bk IV, ch XX, concerning the importance of knowledge.

  81. ‘[B]eing furnished with like Faculties, sharing all in one Community of Nature, there cannot be supposed any such Subordination among us, that may Authorize us to destroy one another, as if we were made for one anothers uses, as the inferior ranks of Creatures are for ours….[or] unless it be to do Justice on an Offender, take away, or impair the life, or what tends to the Preservation of the Life, the Liberty, Health, Limb or Goods of another’: Locke (1689b), Treatises, II §6. Emphasis added.

  82. As summarized by Waldron (1988), p. 144.

  83. Ibid p.148.

  84. For a related discussion, see Macpherson (1962), pp. 245–246.

  85. Locke (1689b), Treatises, I §41.

  86. Which is Tully’s reading: Tully (1980), p. 137. For persuasive cases to the contrary, Wood (1984), pp. 85–92; Waldron (1988), pp. 144–148, 225–232; Cohen (1999), p. 164, note 7.

  87. Locke (1689b), Treatises, I §42.

  88. Ibid II §§46, 48.

  89. Ibid I §43. That this amounts to a genuine ‘compact’ is implausible by Locke’s own lights, which he sets out when discussing the quality of consent required in respect of jurisdictional power: see the main text at note 48 above.

  90. See main text above at no. 43.

  91. This could be seen as another example of Locke’s tendency, as observed by Macpherson, to read back into the state of nature conditions of power belonging to the modern world: Macpherson (1962), Locke (1689b), Treatises, II §14.

  92. See quotation in the main text at note 48 above (esp. ‘Nor does it alter the case to say, I gave my promise…’).

  93. Locke (1689b), Treatises, II § 23; Waldron (1988), p. 227.

  94. Locke (1689b), Treatises, II §85.

  95. On just enslavement, ibid II §24.

  96. Locke quoted in Waldron (1988), p. 229.

  97. Locke (1689a), Essay, bk IV, ch XX §2; this passage is used to criticize Tully’s reading in Waldron (1988), p. 229.

  98. Locke (1689b), Treatises, I §92.

  99. Ibid.

  100. Consider in this light, the remarks of Finnis: ‘the reason why the Rule of Law is a virtue of human interaction and community’ is that people should not be ‘made to live their lives for the convenience of others’: Finnis (2011), p. 272.

  101. Locke (1689b), Treatises, II § 24.

  102. Hence the lamentable truth inadvertently conveyed the contemporary notion of ‘work-life balance’: one’s work and life may only be balanced one against the other if one experiences work as separate from one’s life, perhaps because the sale of a portion of one’s time to another feels like a subtraction of a portion of one’s life.

  103. Locke (1689b), Treatises, II § 137.

  104. Perhaps a defender of Locke’s scheme would attempt a strategy resembling that which is called in aid of Locke’s theory of property. On Leo Strauss’s reading, Locke would claim that:

    The day laborer in England has no natural right even to complain about the loss of his natural right to appropriate land and other things by his labor: the exercise of all the rights and privileges of the state of nature would give him less wealth than he gets by receiving “subsistence” wages for his work. Far from being straitened by the emancipation of acquisitiveness, the poor are enriched by it. For the emancipation of acquisitiveness is not merely compatible with general plenty, but is the cause of it. Unlimited appropriation without concern for the need of others is true charity.

    Strauss (1952), p. 495. In addition to the advent of money in the state of nature (e.g., Locke (1689b), Treatises, II § 50), Locke seems to rely, in substance, on what we would now call the ‘trickle down theory’ to overcome the natural law limitations of his famous ‘enough and as good’ or ‘sufficiency’ proviso: ibid II § 37; II § 41. Discussed in Macpherson (1962), pp. 197–221. Consider Richard Posner’s remarks, ‘Only the fanatic refuses to trade off lives for property…’: Posner (1983), pp. 83–84. But whose lives? For whose property? How to ensure that those with the power to determine the allocation of benefits and burdens do not deny the moral equality of those who would suffer the burdens? On benefits and burdens and Immanuel Kant, see Ripstein (2009), p. 5.

  105. Locke (1689b), Treatises, II § 57.

  106. Compare the implicit view attributed to Locke by Strauss at note 104.

  107. Locke (1689b), Treatises, I §42.

  108. Ibid II §123.

  109. Ibid I §43.

  110. Ibid.

  111. Skinner (1998), pp. 39-50.

  112. Locke (1689b), Treatises, II §93.

  113. This distinction is explained, with approval, by Sir John Laws, Laws (1997), p. 466.

  114. Fuller (1969), p. 171.

  115. Ibid.

  116. Epistle to the reader. In: Locke (1689a), pp 6–14.

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Sempill, J.A. The Lions and the Greatest Part: the Rule of Law and the Constitution of Employer Power. Hague J Rule Law 9, 283–314 (2017). https://doi.org/10.1007/s40803-017-0058-x

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