Corey Robin and Chris Bertram have both recently claimed that libertarianism is insufficiently responsive to concerns about private power – especially the power employers wield over their employees. If libertarians care about individual liberty and freedom from coercion, then why focus exclusively on the ways in which big government undermines these values, to the utter neglect of the ways in which ordinary employers do?
I think there’s an important critique here, even if I don’t think that employment relationships are the best way to illustrate it. My own choice of example would have been racial and sexual discrimination and subordination. All too often, libertarians argue as though racism and sexism would virtually disappear if only big government would stop propping them up. And, of course, libertarians are right that states have done at least as much to buttress invidious discrimination as they have to dismantle it. But to blame discrimination entirely on the state is to ignore the myriad ways in which it draws support from purely private customs, prejudices, and traditions – indeed it is to ignore the ways in which state policies themselves are largely the product of these private oppressive practices and beliefs, even as it they simultaneously serve to reinforce and cement them. Some of the recent left-libertarian literature (especially this fine essay by Roderick Long and Charles Johnson) has gone some way to correct this myopia, partly by reviving the insights of earlier libertarians who were not as single-mindedly focused on the state. But until libertarians learn to lose their knee-jerk hostility to concepts such as “white privilege,” we still have a long way to go.
Still, while racial and sexual oppression is something that (contemporary) libertarians haven’t given sufficient attention to, the same cannot be said of employment relationships. So what explains libertarians’ resistance to having the state intervene in order to protect workers from their employers?
It’s not that libertarians don’t recognize that employers have power over their workers. Whether you want to call it “coercion” or not, employers are in a position to threaten their employees with negative (sometimes severely negative) consequences unless they do what they’re told. Sometimes they do this in a way that almost nobody would find morally problematic (“Show up to work on time regularly or you’re fired”), and sometimes they do it in a way that almost everybody would find problematic (“Fuck me or you’re fired”). Either way, it’s certainly an exercise of a certain kind of power, it certainly means workers are often made to do things they wouldn’t rather do, and it’s certainly capable of giving rise to abusive or exploitative relationships that anyone ought to regard as objectionable.
The reasons libertarians resist the intrusion of state power into this relationship are three. The first and probably most well-recognized is a straightforward commitment to the value of economic liberty. For reasons which John Tomasi articulates so clearly in his new book, libertarians believe that economic liberties are entitled to the same privileged status as civil liberties such as freedom of speech and association. This includes the freedom of employees to choose their place of employment, to form, join, or decline to join unions, or to stop being employees altogether and start working for themselves. But it also, for reasons that Jessica Flanigan has recently articulated, includes the freedom of employers. Put simply, it’s important for employers to have a certain range of freedom to set terms of employment as they wish. Sometimes, they use this freedom in ways that we think are admirable – designing innovative and effective compensation programs for their workers, or hiring employees from traditionally underrepresented groups. Other times they use it in ways we find objectionable – telling their workers to put out or be fired. In between lies a vast gray area. Is it a good use of their liberty for employers to institute a dress code at work? A speech code? To only hire Catholics, or large breasted women? Libertarians believe that such questions are generally not ones that government has the competency or authority to decide, and that they should be left to individual employers to decide as they see fit.
This might seem to put a lot of power into the hands of employers. But, and this is the second reason libertarians generally oppose government intervention, libertarians believe that in most cases, employers don’t actually wield as much power over their employees as they might seem to. Of course, employers might like to force workers to work very hard for very little pay. They might even like them to perform degrading acts for their own amusement. But in most cases, competitive pressures prevent them from being able to make these demands effectively. If employer A asks too much of her employee, or offers too little, the door is open for employer B to step in and make a better deal. The existence of a lot of people who want to take advantage of you severely constrains the ability of any of them to do so. This is why even sweatshops pay wages that are significantly higher than wages elsewhere in the domestic economy. It’s not because they want to. It’s because they have to.
Competition isn’t a cure-all. It can only force employers to pay employees what they’re worth in economic terms, not perhaps what they deserve in moral terms. And even a generally competitive economy will contain individuals who, through bad luck or bad decisions, will wind up in special situations of vulnerability. A social safety net of the sort advocated by classical liberals such as Hayek, Friedman, and Flanigan will go some ways toward mitigating these difficulties. But should government go further, intervening in workplace decisions directly in order to prevent employers from taking advantage of that vulnerability?
But before we can make that determination, we need to consider the final reason that libertarians generally oppose government intervention in the workplace. This reason, which comes straight from Mill, is that when government does interfere, “the odds are that it interferes wrongly, and in the wrong place.” Unlike the power of employers, the power of government is subject to little in the way of competitive discipline, and democratic accountability is a relatively weak and ineffective substitute. And historically, as left-libertarians like Kevin Carson and Gary Chartier have argued, government intervention in the struggle between labor and capital has done much more to weaken labor than to strengthen it. We can imagine a world where the ghost of John Rawls is president and congress is populated by his many smart, well-intentioned, philosophical descendants. But in the world we actually inhabit, giving power to government means giving it to people like George Bush, Scott Walker, Barack Obama, and their ilk. Why think that the future will be any different from the past?