Comments Elsewhere

Incidentally, one of the essays to be presented at APA Eastern Division later this month will be an essay on libertarianism and organized labor (specifically endorsing a “thick” libertarianism advocating an appreciation for, and an alliance with, anti-statist traditions in the labor movement). I don’t think that the questions of rights surrounding strikes are specifically addressed in the essay, but it’s no doubt potential fodder for Q&A.

In any case, it seems like there are at least a few background questions that need to be answered before there can be any fruitful effort towards an answer. E.g.,

1. Does a “right to strike” mean (a) the right to coordinate mass work stoppages without retaliation from the State, or (b) the “right” to coordinate mass work stoppages without losing your job? (That’s an important question, since there’s a very plausible libertarian case for (a) but no plausible libertarian case for (b); libertarian theory would indicate (a) by the RIGHT to strike, but a lot of labor relations law leans more towards the latter interpretation.)

Also,

1. Do INDIVIDUAL people have the right to walk off the job?

… which involves several sub-questions…

2a. If you walk off the job, is there a breach of contract involved?

The answer to 2a seems clearly to be false in many workplaces, where employment is explicitly or implicitly at-will, without any specific term on the labor contract. But in cases where there is some contract that has burlier provisions about how long you’re supposed to continue working, there are the further questions:

2b. If there is a breach of contract, can you rightfully be forced to complete the job as you contracted to complete it (i.e., can you be compelled to specific performance)?

2c. If there is a breach of contract, but the answer to (2b) is “No,” can you be forced to pay compensation to your former employer? If so, how much and for what specifically?

My understanding of the current state of contract law on this point is that generally you can’t compel specific performance (so 2b would be answered “No”), although there may be exceptions where failure to do your job may constitute culpable negligence (e.g. airplane pilots can’t walk off the job in the middle of the flight). Also that you can be forced to pay compensation only for any costs incurred in replacing your labor (and of course compelled to return any portion of your money that you received for work that you eventually failed to render).

That understanding may be flawed, or oversimplified; I’m certainly no lawyer. But I’m inclined to think that contract law is mostly in the right here. Compelling specific performance seems to be either slavery or something creepily close to it, and if you have a right to withhold specific performance (provided you return advance payment for withheld work and cover any liabilities incurred in replacing you) it’s no longer clear what sort of damages you would be paying for if you were forced to pay compensation.

I don’t know if that’s your inclination too, but I think that any good discussion of strikes will, anyway, need to sort out the normative questions involved under the heading of (2), i.e., the questions about INDIVIDUAL rights, before any questions about the status of COORDINATED work stoppage by many individuals cooperating with one another, i.e. strikes, can be sorted out. (This on the plausible auxiliary premises that if you have a right to do something individually then you and your allies have the right to do it cooperatively, and that if you don’t have the right to do something individually, you and your allies’ right to do it cooperatively is at best dubious and in need of some special justification.)