Rights Theory, Liberty

Libertarianism, the Workplace and the Reconciling Power of the Social-Moral Order

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 socialmoral 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.

  • I thnk you are right to point to the moral order as a potential restraint on employers. This general idea appears in other contexts as well; for example in his book “Liars and Outliers” the security consultant Bruce Schneier sees social norms as one of the factors promoting cooperation within a social group and combating defection. (The others are personal conscience, legal/legislative means backed by force, and technical measures, e.g., locks on doors).

    However, I’m going to push back a little on your argument: First, I think to at least some extent you’re assuming a universal moral order, to which both employees and employers belong. It may be that due to circumstances employers are outside the moral order of which employees are a part: they never meet ordinary employees, live in a different state or country, and so on. Hence the force of social norms can greatly lessened.

    Second, as Schneier points out, some people might belong to a subgroup within the larger society that has norms at variance with that society, for example a thieves guild. So, for example, we might imagine a group of employers that stand apart from the group(s) of which their employees are a part, and instead take their cues from their fellow CEOs and other senior managers. In this context arbitrary firings, disciplinary measures, and general abuse of employees might be seen as a positive virtue, a sign that someone is “tough”, “has what it takes”, “makes bold decisions”, “doesn’t take any crap from the workforce”, and so on. By contrast, someone who behaves kindly toward employees would be seen in this context as defecting from group norms: they’re “soft”, “sentimental”, “don’t care about shareholder value”, and so on.

    This possibility doesn’t refute your general argument. However it does call for some additional thought on whether and how a general moral order could deal with such subgroup behavior.

    • Kevin Vallier

      I entirely agree that more most be said. The moral order is a spontaneous order and is certainly a layered patchwork of norms, many of which don’t affect everyone and many of which are left unarticulated. With respect to workplace coercion, I think we should focus on identifying which social-moral rules are being broken or which ones need to be in place and then to figure out methods of increasing compliance.

  • Joe Grimm

    I don’t understand what morally differentiates the “moral order” from the “legal order”. Isn’t the State just the name for our social order? Why are some social repercussions righteous when dictated by unwritten laws, but villainous when dictated by written ones?

    In my eyes you are just calling for a different way of enforcing laws, not for different laws. Your suggestion may be more effective, but I do not understand in what way it is less tyrannical.

    • Kevin Vallier

      I tried to explain that what is characteristic of the moral order, in contrast with the political order, is the non-coercive enforcement of rules of conduct based on evoking the moral emotions, like guilt and resentment. So by pointing to the moral order, I suggest a method of restraining employers without coercion, which can ensure, perhaps as effectively, if not more effectively, than the law and economic incentives, that employers behavior in ways we think permissible.

      • Joe Grimm

        I guess I disagree with your use of the word “non-coercive”. I would use the word “non-violent”.

        I also disagree with the idea that the moral order is not a legal structure, I see a system of rules and punishments.

        • The Fool

          I wouldn’t use “non-violent” either, because moral orders can allow for violent enforcement of norms (vendettas, for example).

          “Informal” might be a better word.

      • M Lister

        Doesn’t Gaus argue that the moral order is itself coercive- that it involves claims of authority and telling people what they must do, with sanctions attached, and that it’s often unpleasant and involves “pushing people around”? It’s plausibly _less_ coercive than, fines or jail (though not always, as Gaus and Mill both note) but if you’re following Gaus here, do you want to say that this is a method that doesn’t use coercion? Or are you breaking from here here?
        (I might add that I’d disagree with quite a bit of the post more generally, though I don’t have time to go into it w/ care now, so I’m mostly just interested in this point of interpretation.)

  • billwald

    Within wide limits, local morality is defined by the local social contract. One obvious example is the posted speed limit and the extent that it is obeyed/ignored.

    For 6000 years before the industrial age, wealth was mostly determined by land ownership and control. Most people were tied to the land.

    Seems to me we now have a new kind of feudal relationship, tied to jobs generated by international corporations. Our new owners/lords don’t care where we live or work because we are interchangeable parts, reproducing human resources to be consumed.

    • TracyW

      I don’t think that employers who care where you live and work are necessarily an improvement. Quite often such employers go on to care about what you worship, and how much you drink, and who you’re pregnant to.

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  • TracyW

    I find appeals to moral order a bit unappealing. Moral orders have often been used to enforce principles that are anti-freedom, and that we find shocking. For example, moral orders with agreements against hiring blacks for good jobs, (or the Irish, or women, or ).

    Moral orders also often want to meddle in how people live their private lives, for example bans on homosexuality, requirements for religious behaviour (quite logical, if you believe that people who don’t worship God X are going to suffer for all eternity, what could be more important than trying to ensure that as many people believe in God X as possible?), political behaviour (who my fellow citizens vote for affects me substantially), how people raise children (and note how quickly debates about child-rearing tactics can move into accusations of child-abuse), who they have children with in the first place, etc. I think that relying on the moral order might lead to more employer involvement in people’s private lives. It wasn’t that long ago that a woman who got pregnant outside marriage would lose most respectable jobs. I think there are good reasons that we’ve moved more to a “mind-your-own-business” approach to moral orders.

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  • Your argument on moral order fails on the many examples such as BRG provided at CT. If moral order were effective none of those examples would exist or alternatively, the management that enforced them would be gone.

    Moreover, the discussion on both sides deals only with employers vs employees where the employers are owners of the business. This too is fantasy. Most supervisors are NOT employers and most employers today are not owners of the businesses they are running.

    • Kevin Vallier

      I think you missed the thrust of my argument. My claim was not the the present moral order solves the problem. My point is that we might focus our attention on modifying it in order to combine workplace freedom and freedom of contract. My broader point was that this is only as unrealistic as trying to change laws or economic incentives. We can and do alter the moral order. And we can reduce workplace coercion by enforcing norms we already have (after all, the norms are in place, given our outrage).

      • Comes the Resurrection all will live in peace, except those burning in hell. To be blunt this is the classic mistake of Marxism, the perfectibility of mankind (the ladies already being so).

        Also please address the confusion of supervisor and owner of the company which lies at the heart of your, and your colleagues arguments.

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  • good_in_theory

    Just having read @google-defee49eb86ab856c1da1c896a7970d9:disqus’s review of Gaus, it sounds like the concept of jurisdictional rights would be a potentially as interesting (more interesting?) bit of Gaus to apply here. Mill’s tyranny of the majority vs the tyranny of government is all well and good, but….

    What happens to jurisdictional rights in the workplace? One could put the BRG claim as basically being that the owner of a workplace does not have a full jurisdictional right over the workplace. At the least jurisdictional rights would seem to be sensitive to scale. Not knowing exactly how Gaus treats things in the book with respect to private property and jurisdictional rights, though, I wouldn’t want to press this too much myself.

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