Saturday, February 19, 2011

The World of Work and Labor Law: A Select Bibliography & Apologia

This bibliography (the latest in our ‘directed reading’ series) contains a number of titles dealing with the “world of work” so as to account for some of the more compelling reasons we should assiduously attend to the topic of the work and leisure time of working people generally and the subject of labor law in particular.

Apologia: Not a few of us are woefully ignorant about the history of workers organizing to better represent and defend their interests, some of which coincide with basic human rights (see, for example, Gross: 2003 and Alston: 2005). Moreover, workers themselves are increasingly misled or confused as to what is in their best (or true) interest, as when they are seduced by the siren songs of conspicuous consumption or enchanted with conservative and libertarian economic ideologies. There are a number of reasons that might account for the fact that many workers fail to appreciate what is in their own best interests. As Jon Elster has argued,

“Marx’s most original contribution to the theory of belief formation was...his idea that economic agents tend to generalize locally valid views into invalid global statements, because of a failure to perceive that causal relations that obtain ceteris paribus may not hold unrestrictedly. For instance, although any worker may be seen as the marginal worker, not all workers can be at the margin. This is a local-global fallacy that leads to cognitive failures, different from yet related to the local-global confusions that lead to failures of action. This is perhaps the most powerful part of the Marxist methodology: the demonstration that in a decentralized economy there spontaneously arises a fallacy of composition with consequences for theory as well as for practice. [….] Outside the factory gate, no one can tell the worker what to do. He can purchase the goods he wants to, within the limits of his wage. He can change employer, within the limits of alternative employment. He may even try to become self-employed or an employer himself, and sometimes succeed. That freedom, while ultimately a danger to capitalism, has useful short-term ideological consequences, since it creates an appearance of independence not only from any particular capitalist, but from capital itself. [….]

Both the freedom to change employer and the freedom to become an employer oneself give rise to ideological illusions that embody the fallacy of composition. The first is the inference from the fact that a given worker is independent of any specific employer to the conclusion that he is free from all employers, that is independent of capital as such, to the conclusion that all workers can achieve such independence. It might look as if the conclusion of the first inference follows validly from the premise of the second, but this is due merely to the word ‘can’ being employed in two different senses. The freedom of the worker to change employer depends, for its realization, mainly on his decision to do so. He ‘can’ do it, having the real ability to do so should he want to. The freedom to move into the capitalist class, by contrast, only can be realized by the worker who is [to quote Marx] an ‘exceedingly clever and shrewd fellow.’ Any worker ‘can’ do it, in the sense of having the formal freedom to do so, but only a few are really able to. Hence the worker possesses the least important of the two freedoms—namely the freedom to change employer—in the strongest sense of these two senses of freedom. He can actually use it should he decide to. Conversely, the more important freedom to move into the capitalist class obtains only in the weaker, more conditional sense: ‘every workman, if he is an exceedingly clever fellow…can possibly be converted into an exploiteur du travail d’autrui.’ Correlatively, the ideological implications of the two freedoms differ. With respect to the first, the ideologically attractive aspect is that the worker is free in the strong sense, while the second has the attraction of making him free with respect to an important freedom. If the two are confused, as they might easily be, the idea could emerge that the worker remains in the working class by choice rather than necessity.” From Jon Elster’s Making Sense of Marx (Cambridge, UK: Cambridge University Press, 1985), pp. 208 and 211 respectively)

In addition, as Joshua Cohen and Joel Rogers explain, the nature of “capitalist democracy” places structural constraints on both the articulation and satisfaction of interests within the system. With regard to the latter, for instance, and owing to their control of investment, “the satisfaction of the interests of capitalists is a necessary condition for the satisfaction of all other interests in the system,” which means “the welfare of workers remains structurally secondary to the welfare of capitalists,” a fact we conveniently forget in times of economic abundance and low unemployment but is resurrected in the wake of the cycles, crashes, and panics endemic to capitalism. The decisions of capitalists are directly responsible for the well-being of workers, and thus we see the “interests of capitalists appear as general interests of the society as a whole, [with] the interests of everyone else appear as merely particular, or ‘special.’” As for the articulation of those interests inextricably tied to basic human and political rights:

“In a capitalist democracy the exercise of political rights is constrained in two important ways. In the first place, the political rights granted to all citizens, workers among others, are formal or procedural, and not substantive. That is, they do not take into account in their own form and application the inequalities in the distribution of resources, characteristic of capitalism, which decisively affect the exercise of political rights and importantly limit their power of expression. [….] Capitalist democracy also tends to direct the exercise of political rights toward the satisfaction of certain interests. The structuring of political demand, or what we call the ‘demand constraint,’ is crucial to the process of consent. [….] [C]apitalist democracy is in some measure capable of satisfying the interests encouraged by capitalist democracy itself, namely, interests in short-term material gain.”

This “demand constraint” canalizes the articulation of the interests of working people into the exclusive pursuit of economic advantage, in part owing to the ubiquitous conditions of “material uncertainty” for all but the wealthy classes: “There is a characteristic economic rationality to the actions of workers encouraged by capitalism. In the face of material uncertainties arising from continual dependence on the labor market under conditions of the private control of investment, it makes sense for workers to struggle to increase their wages.” See their book, On Democracy: Toward a Transformation of American Society (New York: Penguin Books, 1983).

This dramatically lessens the likelihood that workers will spontaneously awaken the requisite energy and craft the collective tools necessary for critiquing and transcending the system as such. And is perhaps one reason why, in Rudolf Bahro’s words, “[I]n no known historical case did the first creative impulse in ideas and organization proceed from the masses; the trade unions do not anticipate any new civilization. The political workers' movement was itself founded by declassed bourgeois intellectuals, which in no way means that the most active proletarian elements did not soon come to play a role of their own in the socialist parties and tend themselves to become intellectuals” (Rudolf Bahro, The Alternative in Eastern Europe, 1978).

As for the “ignorance” and inattention of academics and intellectuals, one can’t help but suspect ideological and socio-psychological mechanisms (e.g., states of denial, self-deception, wishful thinking, ideological illusions) are responsible for the comparative dearth of academics and intellectuals devoted to ameliorating and transforming the conditions of the world of work, or for the fact that precious few lawyers are, comparatively speaking, committed to assisting workers in such tasks as collective self-organization and collective bargaining. Such task-specific “cause lawyering” (see Sarat and Scheingold: 1998; cause lawyering is arguably most conspicuous among criminal defense lawyers) is but part of a general emancipation consisting in “the liberation of individuals from all socially determined limitations on the their development,” and is accomplished to the degree ‘that men are positively placed in a position to appropriate the social totality—or to put it another way, to make subjectively their own the quintessence of the overall cultural achievement that mankind has so far produced or reproduce (i.e., handed down)” (Bahro: 1978: 255). The conditions for general emancipation, as Bahro reminds us, “go far beyond the provision of material means in the narrower sense,” and hence transcends the primary interests engendered by capitalist democracy, “namely, interests in short-term material gain.”

Progressive cause lawyering on behalf of labor organizations and movements, as well as social justice and democratic struggles intrinsic to the world of work more generally, can be understood as acting in response to the Sartrian “plea for intellectuals” in so far as it

1. struggle[s] against the perpetual rebirth of ideology amongst the popular classes. In other words, [it] should attack externally and internally every ideological representation that they entertain of themselves or their power (the ‘positive hero,’ the ‘personality cult,’ the ‘glorification of the proletariat’…).
2. make[s] use of the capital of knowledge [the intellectual] has acquired from the dominant class in order to help raise popular culture—that is to say, the foundations of a popular culture.
3. help[s] to form technicians of practical knowledge within the underprivileged classes…in the hope that they will become the organic intellectuals of the working class….
4. [endeavors to] radicalize actions under way, by demonstrating the ultimate objectives beyond immediate aims—in other words, universalization as a historical goal of the working class. (Jean-Paul Sartre, ‘A Plea for Intellectuals,’ a series of lectures delivered in Tokyo and Kyoto in 1965 and published in Sartre’s Between Existentialism and Marxism. New York: Morrow Quill, 1979, pp. 228-285; cf. Edward W. Said’s ‘The Public Role of Writers and Intellectuals,’ first published in The Nation, and found in his Humanism and Democratic Criticism. New York: Columbia University Press, 2004, pp. 119-144).

The assumption here is that such intellectuals are committed to what Sartre called “a concrete and unconditioned alignment with the actions of the underprivileged classes.” In the cases of workers outside these classes or this set, we might consider the following from Simone de Beauvoir:

“The conservative associates the interests of the bourgeois class with the preservation of spiritual values whose guardian it claims to be. At the same time he strives to demonstrate the primitive and purely material character of the interests of the working class. [….] In the name of his spiritual authority, the bourgeois declares himself to be in a better position to define the conditions suitable for the working class than the working class itself. [….] The standard of living that the worker demands is not required by his immediate needs, nor is it called for by dreams of compensation. It is the actualization, the expression of the idea that the worker has of himself, in the same sense that our body is the expression of our existence. It is the objective form that a transcendence takes on. For this reason it is not absurd that a man is willing to risk his life in a strike, or in a war, in order to maintain or gain a certain standard of living. The aim of the striker is not so much an increase in salary, as a crude amount of money, but an increase of something he has gained; it affirms his power to improve his condition on his own.” (From Beauvoir’s Philosophical Writings, edited by Margaret A. Simons, with Marybeth Timmons and Mary Beth Mader. Urbana, IL: University of Illinois Press, 2004)


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