Law (the Legal System) and the Coercive Power of Employers as a Class

Introduction

It is interesting how little discussion arises over the nature of the legal system and how it contributes to the exploitation, oppression and economic coercion of billions of workers throughout the world. Unions rarely if ever discuss such issues–it is considered to be utopian at best–whereas unions dealing with the “real” problems that workers face every day. Representatives of unions really need to justify their lack of interest in, on the one hand, addressing such issues and, on the other hand, in failing to incorporate a critique of the legal system into trade-union education.

All Corporations as Criminals–Not Just Some, Or: Definition of the Problem

Below is a set of quotes, along with some commentary, from Professor Harry Glasbeek’s (2018) book Capitalism: A Crime Story. Glassbeek points out in various ways that the employment contract, whether individual or collective, involves coercion:

Every contract of employment, supposedly voluntarily entered into by workers, imposes a legally enforceable duty on workers to obey, a duty to exercise reasonable skill and care, a duty of good faith and loyalty. The worker is not to talk back, let alone rebel; the worker’s only goal is to serve her employer and its goals. This is deeply embedded in our supposedly liberal legal system. As Otto Kahn-Freund put it, the lawyer acknowledges that the hallmark of employment relationships is the element of subordination to which one party, the employee, is said to agree. Canada’s Task Force on Labour Relations baldly stated that a superior-inferior nexus is the distinguishing characteristic of the employment relationship.46 Even when workers can protect themselves better by having won the right to engage in collective bargaining (obviously a departure from the individual contract model), workers are required to obey all reasonable orders the employers issue. The notionally sovereign, autonomous workers are repeatedly and expressly told that the workplace is not a debating society. Coercion of individuals and appropriation of their product remain salient features of legally enforceable contracts of employment, even when laws are passed to alleviate the burdens imposed by its judicially developed doctrines.48

Force and taking—it is the norm. It is not hard to see this if law’s pretenses are unmasked. Take our illustrative mugger who threatens a person with force: the law is sanguine. He is a criminal. The employer who threatens a worker with wage loss if she insists on having clean lungs is treated, by means of a legal pretense, as merely negotiating terms and conditions of a contract (including those of safety at work) with another equally sovereign party. This is a momentous and absurd assumption. Yet, all occupational health and safety regulation begins with this premise, that is, with the initial thought that, whenever possible, safety at work should be left to bargaining between private (if unequal) actors. I will come back to this issue, but the implications are dire for workers. For the moment, I return to my claim that it is patently false to assert that workers enter voluntarily into contracts of employment. Workers have no choice about whether to sell their labour power [their capacity to work or to use the means of production, such as computers and other machines and tools]; if they are lucky they can choose among some purchasing capitalists. They must sell parts of themselves. That is their only freedom, a freedom that is best described as a freedom they are forced to exercise, an oxymoronic idea if there ever was one.

This coercive economic system and its indirectly coercive political and legal system can have deadly consequences, to which legislators have to pay lip service (as the Westray mining murders illustrate:

Legislators may have to overcome stiff opposition from the dominant class’s opinion moulders, but will act to still the palpable public unrest. They feel under pressure to reassure the non-capitalist public that politicians, policy-makers, and the law do truly care about life and the social values by which non-capitalists want, and expect, to live.

Canada’s Westray mining tragedy provides an easy illustration. Before the mine blew up, there had been fifty-two violations of mining safety regulations detected by the inspectorate, none of them leading to punishment. In the aftermath of the deaths of twenty-six workers (no employers or managers, of course), a public inquiry was established. The findings were that the operators had been incompetent at best and, at worst, heedless of human life. Note here that, while the violations of the regulations provided evidence for such findings, it was not the lack of obedience to the resultant orders for breaches of those
standards that got everyone angry. It was the business plan and the daily modus operandi of the mine owners that was seen as repellent, as worthy of criminalization. This was explicitly supported by the authoritative commission of inquiry. Its recommendation was that, if the law did not allow for criminal prosecution of corporations and of their senior operators for this kind of conduct, it should be reformed. After a lengthy battle (capitalists, their corporations, and their ideological defenders did not like this turn of events), legislation was enacted. It makes it possible to criminalize the omission to take action when it is reasonable for some senior officers to believe that it is likely that there will be a
failure to take adequate care (calibrated by regulations or general legal principles). This gradual realization that the usual exceptional legal treatment of capitalists and their corporations needs to be reined in from time to time is not jurisdictionally specific. Analogous legal reforms have been initiated in some Australian jurisdictions and a somewhat less sweeping statute was enacted in the U.K.

These recognitions that heedless risk-creation and risk-shifting, so natural, so routine to for-profit corporations, is potentially criminal in nature and might be so treated go against the grain, go against the starting premise that capitalism’s normal workings involve virtuous actors, using innocent substances and methods that may occasionally lead to unfortunate “accidents” and “spills.” The resistance mounted by capitalists and their corporations’ cheerleaders has been forceful and, thus far, has blunted the impact of the new criminal law reforms. In Canada, after ten years of operation, there has only been one prosecution in respect of fatalities at work per year, even though the number of fatalities has remained constant. The calculation is that there is a 0.1 per cent chance that a prosecution will be launched after a workplace death. That this was always going to be true can be gleaned from the fact that all these reforms took ages to put on the statute books (in Canada close to eleven years; the Australian Commonwealth statute took a similar twelve years to be given life), despite officialdom’s caterwauling about the tragic nature of the results that had led to them.

The powers-that-be continue to believe in their internalized make-believe view that it is not unethical, not criminal, for practising capitalists to undertake actions that they know, or should know, will lead to a certainty of death or other unacceptable outcomes. Thus, when confronted by policy-makers under pressure to confirm that we still live in a liberal democratic society and should punish capitalists as if they were ordinary folk, they ask everyone not to be romantic. Pragmatism is to rule. Principle is a luxury. The liberal spirit of law must be bent to allow capitalists and their corporations (and thereby all of us) to flourish. It is not a very convincing argument on which to base a legal system. At best, it is
amoral; it asks that we should be willing to suspend our ethical goals for the sake of expediency. In any event, this demand, based as it is on the notion that the suspension of our adherence to our shared values and norms is a practical response to real-world circumstances, is not backed by any sound evidence. What is certain, however, is that the tolerance for amorality, or worse, for ethical and moral failures, does nothing for the social cohesion that any society must have to flourish.

Some Proposed Solutions to the Criminal Nature of Corporations–and the Probable Resistance of Social Democrats to Such Solutions

Academics, like Professor Glasbeek, who are critical of the legal system and are aware of its class biases sometimes naively believe that those who claim to be opposed to capitalism are in fact opposed to it. For example,  Professor Glasbeek argues the following:

It would be politically useful to shift the nature of the debate. It should become a debate about whether corporate capitalism actually delivers the good it promises and that this permits it to justify asking society to bear the occasional “malfunctioning” of the system. If this can be done, anti-capitalist activists might find themselves on a more favourable terrain of struggle. Pro–corporate capitalism advocates will have to show that the material wealth capitalists and their corporations produce outweighs the dysfunctionalities generated by their ceaseless drive for more. The uneven distribution of wealth and power, the many physical and psychic injuries inflicted by the chase for profits, the rending of the values and norms by which people other than capitalists believe they should live, all can be listed and elaborated to offset the satisfaction we are supposed to evince because, in the aggregate, monetary wealth is growing ever so nicely. Making this a focus of the attack on capitalists and their corporations can reveal that their reliance on the argument that “the most wickedest of men [doing] the wickedest of things” is a proper means to deliver the “bounty” of economic growth that we supposedly need and crave is inane, perhaps even insane. An argument that their calculation of wealth does not speak of a kind of wealth that meets the aspirations of human beings who want to live in a more altruistic, more compassionate, more ecologically nurturing society can be put on the agenda.

I fail to see how such an agenda is really being promoted here in Toronto by the so-called progressive left. The progressive left talk about “fair contracts,” “good jobs,” and the like. Indeed, it is interesting how social democrats, ultimately, idealize law and the legal system. Thus, trade unionists here in Toronto, such as Tracy McMaster (union steward, organizer, former vice president, Ontario Public Service Employees Union (OPSEU) local 561 and Wayne Dealy (executive director, Canadian Union of Public Employees (CUPE) local 3902), who refer to a fair contract, indirectly idealize the legal system. They assume that there can be such a thing as a fair contract (including, of course, a collective agreement). The legal system, however, is not only “imperfect” (to use one of Ms. McMaster’s euphemistic terms) but riveted with biases against workers and the working class.

What are Wayne Dealys, Tracy McMasters of the world  doing to enlighten workers about the unfairness of contracts and the unfairness of a society characterized by the power of a class of employers? Or are they more concerned with idealizing collective agreements and minimizing the imperfections in collective agreements and the legal system of which collective agreements form a part?

What would the Dealy’s and McMaster’s say, not rhetorically but practically, about Professor Glasbeek’s following assertion:

This led to legislative interventions to “even up” the bargaining game. We now allow some unionization; we now provide some legislated standards if workers cannot win socially acceptable terms by their own free and voluntary dealmaking. The scope and kind of these protections wax and wane as political and economic fortunes change. When wins are recorded, they are significant worker friendly add-ons to what unmodified employer favouring law offers. But because they are add-ons, many of the legislative gains made by the working class are impermanent. The essentially coercive nature of employment remains intact. Still, the fact that there have been many reforms, that is, many interferences with free contract-making, may suggest to some that the continued significance of the ideological and instrumental impacts of the individual contract of
employment is overstated in the argument presented here. To many observers, the contention that workers are making autonomous choices when entering employment contracts holds up because, in the advanced economies where Anglo-American laws rule, many of us (after 180 or so years of fierce struggles) have some protections against the legalized right of employers to use their wealth as a bludgeon. It is fair to say that the modernized employment relationship looks more benign than it did, but this may only mean that its coercive nature is more insidious, less easily seen. This may make matters
worse….

The fact is that law maintains the basis for a deeply unequal relationship between employers and workers, even when this is sugar-coated by contingent gains made by the working class.

Social reformists and social democrats not only would likely ignore Professor Glasbeek’s analysis of the problem, but they would likely reject out of hand his proposed solutions. For instance, consider Professor Glasbeek’s following proposal:

The characterization of corporations as sovereign individuals with their own agendas is not defensible and should be confronted constantly. Conceptually and materially, they are collectives endowed with disproportionate economic and political powers that benefit the contributors of capital to their coffers. Corporations are instruments designed to satisfy capitalists’ drive for more. Their misbehaviours should be attributed to capitalism as a system and capitalists as people. Anti-capitalist activists and critics should not permit themselves to be distracted by legal proposals to reform corporations or by engaging with movements designed to persuade corporations to be more socially responsible. If, as argued here, capitalism is criminal in nature, it follows that, when they flout ethical and moral norms embedded in law or violate legally mandated standards, corporations are doing what comes naturally to red-blooded human capitalists and what they want their corporations to do. Given the frailty of the legal reasoning that bestows legal personality on an artificial being and that limits fiscal liability and removes legal responsibility from those who hide behind the novel legal person, anti-capitalist activists and critics would do well to argue for the abolition of corporations and hold their controllers’ feet to the fire. An extended and cogent argument to this effect has been made by Steve Tombs and David Whyte in their recent work, The Corporate Criminal.

Conclusion

I know of no social-democratic leftist individual in Toronto who seriously is working towards the abolition of corporations. They consider such talk to be absurd–in practice, although in theory they may pay lip-service to it. They certainly do not teach the decidedly opposite interests of workers and employers. Quite to the contrary. They often paper over such opposition by the use of such phrases as “fair contracts,” “fair collective agreements,” “fair wages,” “decent jobs” and the like.

I invite social reformists or social democrats to engage seriously in creating a movement for the abolition of corporations, in Toronto and elsewhere. Relying ultimately on the legal system to defend us is bound to end up in limited gains and the continued coercion, exploitation and oppression of millions upon millions of workers.

Of course, given my own experiences with social reformers or social democrats, I suspect that they will continue to ignore the systemic real experiences of class oppression, class exploitation and class coercion. In such circumstances, they need to be criticized constantly.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.