I am delighted that Chris Bertram, Corey Robin and Alex Gourevitch (BRG) decided to engage BHL on workplace coercion. For my part, I will be disappointed if this discussion merely replays century-old arguments between socialists and liberals about the freedom of workers under capitalism. My aim is to demonstrate that BRG’s central claim – that BHLs cannot adequately respect workplace freedom – is false. But my argument will not depend on showing that BRG have the “wrong” concept of freedom or the “less important” sort. Neither will it depend on standard, economic arguments that libertarians often appeal to. Instead, I will outline some social mechanisms that BHLs can appeal to in order to reduce the conflict between freedom of contract and workplace freedom. Specifically, I will appeal to the social-moral order as a method of social reconciliation, not only of these two types of freedoms, but the seemingly opposed persons who value them.

I. Our Conversation in Historical Context 

First let me explain how the discussion thus far fits into the history of political thought. Social democrats, socialists and Marxists have long claimed that classical liberal conceptions of freedom are defective, especially freedom of contract. The time-honored illustration is the man who sells himself into slavery. According to the classical liberal view (supposedly) the man is free because he agreed to sell himself into slavery. But, the socialist says, this is obviously a mistake. Indeed, the man is a slave. Socialist-influenced theorists then offer arguments by analogy in order to criticize markets for restricting rather than promoting freedom. After all, even if a man does not sell himself into slavery, he must eat, and so he will feel economic pressure to take any job he can. This, in turn, will make him vulnerable to domination, coercion and control by his employers, including the many, awful ways that BRG describe. Thus, since freedom of contract allows such coercion, it is (at best) an incomplete conception of freedom that requires supplementation. A robust conception of freedom must influence freedom in the workplace; and if so, libertarians cannot claim to value or defend freedom.

We can now situate BRG’s post in this dialectic. BHLs often accept the socialist point about freedom of contract in principle if not in degree. They then argue that most of the morally problematic workplace coercion not alleviated by market competition can be assuaged by a universal basic income (UBI) so that no one will be “forced” to work. BRG argue that the UBI would have to be quite high in order to provide workers with sufficient alternative options to undermine workplace coercion in the market. Jess has already replied to this concern.

II. BRG’s Modal Claims – Or What Employers “Can” Do 

I want to zone in on BRG’s modal claims, that is, claims about what employers can do, or what is within their power to do. Consider BRG’s claim that the private sector “can administer punishments without being subject to the Bill of Rights” or their claim that employers are “free to do precisely what the state is forbidden to do.” Similarly, BRG point out that workers are surprised to learn that they have “no freedom of speech or right to privacy on the job.” That is, employers can abridge those rights whenever they like. There is no law barring their behavior. An implicit corollary is that if a law in fact barred such behavior, then workers would have freedom of speech and privacy in the workplace. Why? If the liberal democratic state makes and enforces a Bill of Rights in the workplace such rights will likely be protected.

Libertarians reply to these modal claims by pointing out that laws guarantee nothing. Just because X is guaranteed by law does not mean that X will be provided. Worthwhile guarantees must be causally connected to results. This is part of the insight of the law and economics tradition, as it sees law as just one more disincentive to act in specific ways. But there are many kinds of disincentives, most notably torts and monetary penalties. So, just as a law will provide employers with a disincentive, making it largely false that employers can coerce their employees, monetary disincentives make it largely false that employers can coerce their employees (since they will lose good workers at the margin if they make work unpleasant).

III. Modal Restraints – Legal, Economic and Moral

Let us call these legal and economic disincentives types of employer restraints. A restraint on an employer barring her from Xing makes it (largely) false that the employer can do X. A legal restraint on an employer bars her from Xing because if the employer Xs, she will suffer a legal penalty. Similarly, an economic restraint on an employer bars her from Xing because if she Xs, she will suffer economic loss.

I will now introduce a third restraint – moral restraint. A moral restraint on an employer bars her from Xing because if she Xs she will be blamed or ostracized and the object of warranted resentment. Political theorists have long recognized that moral ostracism can be freedom-restricting. J. S. Mill’s On Liberty comes to mind.

But the place of the moral order as a source of freedom is usually ignored in debates about workplace freedom. Why? In my view, it is due to a metaethical piecture on which the political order is based on economic and legal conventions but the moral order is based on normative, non-factual principles. But I contend that while there are valid moral principles, we exist within a set of conventions known as the social–moral order which makes all cooperative social life possible. The political and economic orders could not exist without the moral order. Unless people are prepared to morally penalize rule-violators, neither states of large-scale markets could form, for the cooperative system undergirding both could not get off the ground.

IV. The Social-Moral Order 

Conceiving of the moral order as a social order is a theme of an increasing number of philosophical and moral psychological works. Much of the literature attempts to explain the evolution of morality in terms of the evolution of a special sort of social practices. Specifically practices involving guilt, resentment and other reactive attitudes. Hayek, incidentally, is an inspiration to many in this field of study.

If the literature is correct, and I think it is, then a social-moral order underlies the political and economic orders. Here I follow Gerald Gaus’s new book, The Order of Public Reason, in conceiving of human social life fundamentally governed by a social morality. A social morality is “the set of social-moral rules that require or prohibit action, and so grounds moral imperatives that we direct to each other to engage in, or refrain from, certain lines of conduct.” (OPR, 2)

Perhaps the definitive feature of the moral order is that it engages the moral emotions like resentment and guilt. When you break a law that you believe is immoral, or if you fail to follow your economic best interests, you may not feel guilty. But if you break a moral rule, you are much more likely to feel guilt, an unpleasant feeling to say the least, and one that remains with you when you are alone. Moral rule violations also provoke other social costs, such as public ostracism, bitterness and alienation from others. The disincentives provided by the moral order are potentially enormous, given the sort of creatures we are. Unlike legal penalties, the threat of moral disapproval provides a constant low-level disincentive, as the possibility of guilt and resentment can be attached to much more finely grained actions, such as small violations of moral rules governing how to treat one’s workers.

Thus, I suggest that we add to moral restraints to our list. Thus the friend of contract freedom can appeal to three social mechanisms in order to undermine workplace coercion as the socialist understands it – legal (perhaps through torts), economic (perhaps through competition) and moral (perhaps through ostracism and blame). These mechanisms can make it the case that employers generally “cannot” engage in workplace coercion, while preserving freedom of contract. Yes, my socialist-leaning friends, we BHLers can have it all!

V. The Social-Moral Order as a Source of Freedom and Reconciliation 

By focusing on the power of the moral order, we need not decide whether freedom of contract or workplace freedoms are the “real” freedoms. The point of the social-moral order, along with a free economic order, is to develop an extended social order that preserves both freedoms in real-world practice.

The moral order in the workplace is undoubtedly imperfect, as is the political order in the workplace. However, the power of the present moral order helps to explain why employers often do not exercise the rights that the laws assign them. Economic and legal disincentives alone cannot fully explain why employers are nowhere near as bad as they could be, both legally and economically. Our social morality leads many employers to feel guilt for mistreating their employees. And less moral employers are at least aware that mistreating their employees will result in open criticism and a loss of authority and respect. With an adequate social-moral order in place, employers “cannot” engage in the sorts of impermissible activities that BRG list, but workers still have liberty of contract. In this way, the moral order can help unit workplace freedom and freedom of contract.

At this point, the socialist will likely be annoyed. “Of course the moral order could play that role!” the socialist will exclaim. “But in actual practice it does not!” But there is no relevant disanalogy between the moral and political orders here. The political order could play that role as well, as BRG point out. There are no true guarantees in either case.

Another potential reply is that while we can directly control the political order, we cannot directly control the moral order. But this is false. Individuals can have a much greater impact on the moral order than the political order. My vote usually changes nothing, but my practices of rule compliance or non-compliance can affect everyone I regularly interact with. We can challenge oppressive social-moral rules and lay down new ones. That is, we might ensure workplace freedom through moral action coupled with political action consistent with respect for freedom of contract. BRG have in no way shown that this cannot be done. And by arguing that we can use the political order to protect workplace freedom, it seems to me that they are committed to holding that we can use the moral order to do the same. And since I don’t think they deny that freedom of contract is a valuable freedom, then they should opt to use the moral order instead of the political order when possible, since the moral order is not essentially coercive.

(Though the moral order can be oppressive, even worse than the political order, as Mill said. Better to be in jail than to be hated by your friends, after all.)

In sum, the moral order can help a society respect both types of freedom at the same time, which promises to reconcile socialists and liberals.

VI. BHLs Can Have It All 

I have not tried to prove that BRG have the wrong conception of freedom and coercion, nor have I tried to dispute their empirical claims. Instead, I have outlined a set of social mechanisms by which BHLs can recognize both sorts of freedom as fundamentally valuable without having to make substantial trade-offs between them. So BRG’s main thesis, namely that BHLs cannot appropriately respect workplace freedom, is false. By appealing to the moral order (and, lest we forget, a free economic order), we have the power to significantly diminish the conflict between these two valuable forms of freedom.