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.

Socialism, Police and the Government or State, Part Two

This is a continuation of a previous post. It is a response to Mr. Sam Gindin’s article, We Need to Say What Socialism Will Look Like , where he argues that under socialism the government or state will not “wither away” but will expand as public services expand. Mr. Gindin’s conception of the expansion of public services is, however, largely quantitative and has little to do with fundamental qualitative changes in public services.

The issue has to do with the idea of a “transitional socialist society.” Mr. Gindin assumes that such a society will come into existence through the expansion of public services that already exist. Compare his assumption with the following (from Rob Bryer, Accounting for History in Marx’s Capital: The Missing Link, pages 279-280):

…he [Andrew Kliman] makes a helpful suggestion: “except to say that I have increasingly come to suspect that the very idea of ‘transitional society’ is incoherent, and seems to stand in the way of thinking things through clearly” (Kliman 2004, 11). Rather than opting out, or making a transition from capitalism to socialism, Kliman
(2004, 12) argues “what requires explanation is the essential character of the change, which is not gradual quantitative decrease, but [quoting Hegel’s Science of Logic] the ‘abstract transition of an existence into a negation of the existence,’” Kliman (2004, 14) therefore suggests, “Capitalism . . . cannot ‘become’ a new society; it cannot gradually cease-to-be as the new society comes-to-be. Is it not the case, then, that revolutionary transformation can only be comprehended as absolute liberation that begins the day after the revolution, rather than as gradual transition?”

A transitional mode of production is incoherent, but history shows pre-capitalist transitional societies in which different modes co-existed, where class conflict was driving change in which one became dominant. Changes in the dominance of pre-capitalist modes—slavery over primitive communism, feudalism over free peasants, and capitalism over feudalism— were transitions. In his early work, Marx used the idea of transitional societies, changing from one ‘mode of commercial intercourse’ to another to explain history and, particularly in The Communist Manifesto, argued for a transition to socialism. However, from Grundrisse onward he argued that the
change to socialism was unique because, rather than an unconscious change in dominance from one form of exploitation to another, socialism results from consciously changing the social relations of production, and creating the necessary superstructure, to abolish it. Socialism becomes possible only if all (or the vast majority) of workers understand Marx’s theories of value and history and, when they do, they ‘inevitably’ change society’s social relations of production on Day 1 to abolish all exploitation.

There can, therefore, according to the mature Marx, be no transition to socialism, no ‘transitional society,’ part capitalist, part socialist, but only a once for all, immediate and comprehensive, qualitative change in the social relations of production.

Although history will undoubtedly be much messier than this “once and for all, immediate and comprehensive, qualitative change,” the basic idea of a vastly different kind of society emerging from capitalism than the emergence of capitalism from earlier kinds of society is something which Mr. Gindin ignores. The need for a conscious and organized effort to eliminate classes needs to be explicitly put on the agenda from the beginning in order to make a qualitative change in our lives.

Mr. Gindin does speak of the “transformation” of the capitalist state into a socialist democratic state, but his complete neglect of the repressive aspects of the government and his insistence that “scarcity” and “external motivation” will necessarily characterize socialism means that such a transformation will continue to possess repressive features.

Many members of the working class (especially the precarious members of the working class in Canada since many unionized members of the working class no longer engage in illegal strikes), however, experience the capitalist government or state as repressive. Mr. Gindin simply ignores this feature of working-class experience when he refers to the “transformation” of the capitalist state. The need to abolish a separate police power was formulated long ago, when the Paris Commune emerged in 1871 in France.

Let us continue with the issue of the repressive power of legal system. Last time, we looked at the police. Let us now look briefly at the criminal courts. An accused is supposed to be innocent until proven guilty–so says the rhetoric (rhetoric characterizes much of a society dominated by a class of employers). Is this really the case, though?

From Doreen McBarnet, Conviction: Law, the State and the Construction of Justice, page 2:

The whole flavour of the
rhetoric of justice is summed up in the idea that it is better for ten
guilty men to go free than for one innocent man to be wrongly
convicted. Why then the paradox that the vast majority of cases
processed through a criminal justice system so geared to favouring
the accused results in a finding of guilt?

For they do. According to the criminal statistics for 1978,
conviction rates were as follows: 8o per cent of Scottish cases
involving crimes, 95 per cent of Scottish cases involving offences, 84
per cent of English Crown Court cases, 93 per cent of indictable
cases, 95 per cent of non-indictable cases, in the English magistrates’
courts.3 Some samples show even higher rates-a 98.5 per cent
conviction rate for magistrates’ courts in Sheffield (Bottoms and
McClean, 1976). Conviction depends in court on the plea or the
verdict. If the accused pleads guilty to the charge against him,
conviction follows as a matter of routine. If he pleads not guilty, a
contested trial follows. According to Bottoms and McClean, 72 ·5
per cent of those contesting the case in magistrates’ courts, 55 per
cent of those choosing jury trials, and 71 per cent of those allocated
to the higher courts were convicted on some or all counts (pp. 106,
209). In the rhetoric of justice everyone is entitled to a fair trial; yet
most defendants plead guilty. In the rhetoric of justice any
reasonable doubt should result in acquittal; yet for the clear
majority of cases the court is convinced beyond reasonable doubt,
despite all the rhetorical hamstrings on police and prosecution, that
the accused is guilty. Why?

One answer might be quite simply that the defendants are guilty;
the case against them is too strong to be plausibly disputed; the facts
speak for themselves. Sir Robert Mark has suggested indeed that the
very limitations placed on police and prosecution bringing a case to
court make it highly probable that only the indisputably guilty
come through the process at all….

Mr. Gindin probably has been indoctrinated into the ideology of law, which presents courts as areas where legal due process is dominant–whereas the opposite is the case.

From Doreen McBarnet, Conviction: Law, the State and the Construction of Justice, Page 153:

Legal policy has established two tiers of justice. One, the higher
courts, is for public consumption, the arena where the ideology of
justice is put on display. The other, the lower courts, deliberately
structured in defiance of the ideology of justice, is concerned less
with subtle ideological messages than with direct control. The latter
is closeted from the public eye by the ideology of triviality, so the
higher courts alone feed into the public image of what the law does
and how it operates. But the higher courts deal with only 2 per cent
of the cases that pass through the criminal courts. Almost all
criminal law is acted out in the lower courts without traditional due
process. But of course what happens in the lower courts is not only
trivial, it is not really law. So the position is turned on its head. The
98 per cent becomes the exception to the rule of ‘real law’ and the
working of the law comes to be typified not by its routine nature, but
by its atypical, indeed exceptional, High Court form. Between them
the ideologies of triviality and legal irrelevance accomplish the
remarkable feats of defining 98 per cent of court cases not only as
exceptions to the rule of due process, but also as of no public interest
whatsoever. The traditional ideology of justice can thus survive the
contradiction that the summary courts blatantly ignore it every
day-and that they were set up precisely for that purpose.

The real world of courts (and the police) needs more than “transformation”–it needs abolition since they function at the level of real law and not at the level of the rhetoric of justice. From Doreen McBarnet, Conviction: Law, the State and the Construction of Justice, pages 154-155:

The rhetoric of justice requires incriminating evidence as the
basis for arrest and search; the law allows arrest and search in order
to establish it. Justice requires that no-one need incriminate himself;
the law refuses to control the production of confessions and allows
silence as a factor in proving guilt. justice requires equality; the law
discriminates against the homeless, the jobless, the disreputable.
Justice requires each case be judged on its own facts; the law makes
previous convictions grounds for defining behaviour as an offence
and evidence against the accused. Justice places the burden of proof
on the prosecutor; the law qualifies the standard and method of
proof required and offers the prosecutor opportunities for making a
case which the accused is denied. Justice proclaims the right to trial
by one’s peers; the legal system ensures that 91 per cent of all
defendants plead guilty, and of the rest most are tried without a
jury.

If, then, the process of conviction is easier than the rhetoric of
justice would have us expect-and easier still the lower the status of
the defendant-it is hardly surprising. A wide range of prosecution
evidence can be legally produced and presented, despite the
rhetoric of a system geared overwhelmingly to safeguards for the
accused, precisely because legal structure, legal procedure, legal
rulings, not legal rhetoric, govern the legitimate practice of criminal
justice, and there is quite simply a distinct gap between the
substance and the ideology of the law.

This conclusion has two direct and immediate implications. First
it places the contemporary policy debate over law and order in a new
light. The police demand for more powers, for the removal of the
hamstrings of the right to silence, the limitations on arrest and
search-and indeed the civil liberties camp’s agitated response that
the legal checks of British justice must be upheld-begin to appear
rather odd. Both sides of the debate are framed in terms of the
ideology of civil rights, not in terms of the realities of legal procedure
and case law which, as I hope this analysis has amply shown, have
all too often already given the police and prosecution the very
powers they are demanding. The law does not need reform to
remove hamstrings on the police: they exist largely in the unrealised
rhetoric.

Second, more theoretically, this analysis has implications for the
explanation of law-enforcement and its outcomes. A whole range of
excellent sociological studies has pointed out situational, informal,
non-legal factors in police-citizen encounters and courtroom
interaction to explain who is arrested or convicted, and to explain
why the system so often seems in practice to be weighted against the
accused. Their answer lies essentially in the complex nature of social
interaction and motivation; in the fact that people do not merely
administer the law but act upon and alter it as they do so. This study
offers a supplementary perspective, making the law rather than the
activities of its administrators problematic. The conclusion is quite
different. Given the formal procedures and rules of the law and the
structure of arrest, investigation, plea and trial, one could not–even
if human beings acted entirely as legal automatons–expect the
outcomes to be other than they are. If the practice of criminal justice
does not live up to its rhetoric one should not look only to the
interactions and negotiations of those who put the law into practice
but to the law itself. One should not look just to how the rhetoric of
justice is subverted intentionally or otherwise by policemen bending
the rules, by lawyers negotiating adversariness out of existence, by
out-of-touch judges or biased magistrates: one must also look at how
it is subverted in the law. Police and court officials need not abuse the
law to subvert the principles of justice; they need only use it.
Deviation from the rhetoric of legality and justice is institutionalised
in the law itself.

Mr. Gindin’s implicit contention that the “withering away of the state” is utopian expresses his own middle-class experiences and bias. He probably has not experienced the repressive nature of the police and the court system. He vastly underestimates the importance of that repressive apparatus and implicitly idealizes the current state system.

To what extent, for example, is the modern welfare state not only the provision of needed public services but also oppressive? Mr. Gindin has nothing to say on this score. Yet if we consider how social workers are linked to the police and to the courts, then we can see that the modern welfare state is itself often repressive and needs not just transformation but substantial reconstruction as the repressive apparatus of a hierarchy of managers is abolished and work is democratized. What of faculties of education and schools? Would they not need substantial reconstruction as their repressive aspects are abolished in conjunction with the repressive apparatus of employers? And so forth.

For those oppressed by the police, criminal court systems and various social agencies, there is a need for the abolition of such structures and the “withering away” of such structures as workers and the community finally develop processes that enable them to control their own life process.

Mr. Gindin’s article, then, ultimately serves as a reminder of just how distant “real socialists” (actually, social-democratic reformers) are from the daily experiences of billions of workers and community members.

Mr. Gindin’s “realistic” socialism, then, fails to address either the nature of modern capitalist society or the qualitatively different kind of society which would characterize a socialism without a repressive government apparatus.

The Poverty of Academic Leftism, Part Four: The Myth of Creating Socialist Spaces

Professor Noonan, an academic leftist, argues that the Nemak return to work provides lessons for the left. Indeed, it does–but unfortunately he fails to draw further lessons from the situation.

He says the following:

As regards work, the structural dependence on paid employment is what makes people working class. This structural dependence is what, above all, democratic socialism would overcome. However, it cannot be ended overnight, but until it is ended workers’ short term struggles are always in danger of becoming victims of wars of attrition. The capitalists, with the law typically on their side, can wait workers out or bleed their resources dry (Unifor was facing fines of 25 000 dollars a day and individual officers 1000 dollars per day). Overcoming the dependence requires long term struggle, but dependence means that your ability to survive without the work you are refusing to do is time-sensitive in the extreme.

Given the claim that the capitalists have “the law typically on their side,” should not the conclusion be drawn that the law as such should be criticized? That reference to “fair contracts” and “decent work” which trade union representatives often express, should be criticized? Professor Noonan remains silent about this. Why is that?

Should not union training include, systematically, the bias of law in relation to workers’ interests? Does it? Should that lack of inclusion of a critique of the bias of law be itself criticized?

He further writes:

There are three general sorts of changes. On the one hand, there are concessions which are made in order to return the situation to normal. This sort of concessions appears to be all that Nemak has offered. At the other extreme, there are revolutionary changes which would create completely new social institutions. It is easy to find abstract arguments that contend that no major social contradiction can be resolved without revolutionary changes. It is much more difficult to find concrete arguments that are powerful enough to actually mobilise revolutionary forces. The key problem here is that no one can say with any certainty how a new society would work (beyond general assurances that it would solve everything because it would be the opposite of this society).

Professor Noonan then dismisses both possibilities:

If concessions do not address the problem and a progressive revolution is not in the offing in the foreseeable future, [my emphasis]  hope must be invested in a third possibility: smaller scale structural changes that create space and time for for deeper and wider changes in an unfolding process of transformative social change. How is that to happen if workers cannot survive outside of paid employment (or its social benefit equivalent) for long enough to survive for the long-term? The answer is to struggle for changes to the nature of employment. The Nemak crisis, and the analogous crisis in Oshawa offer opportunities for just these sorts of demands.

The reference to “progressive revolution” is dismissed because it is not possible in the foreseeable future. What does that mean? That substantial changes in class relations will arise in the short-term is undoubtedly unlikely. However, Professor Noonan performs a sleight of hand by shifting the future to some far off horizon. This is the method of social reformers of various persuasions–they shift radical change to the distant future rather than seeing than any radical change will always have to begin in the present. Carl Weathers, in his role as Apollo Creed, told Rocky in the movie Rocky III: “There is no tomorrow.” All progress will always have to begin in the present–but as John Dewey, the educational philosopher and logician pointed out, the present is a moving present.

It may appear that Professor Noonan does indeed include the future in the present by struggling “for changes to the nature of employment.” Let us look at what Professor Noonan has to say on this score.

He says:

GM Workers in Oshawa are being subjected to the same loss of their factory as Nemak workers in Windsor. Like Nemak workers, the GM workers did not meekly accept the GM decision, but instead fought back. They have won a concession (which is nevertheless a victory and another good lesson): the company will consider using a small fraction of the space and workforce to produce parts. But there are other ideas which, while bold, are not impossible within existing institutions. However, if they were realised [my emphasis]  they would point beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism. At the same time, since they are realizable here and now they do not depend upon a “revolutionary break” for which the required social and political forces do not exist.

In response to the Oshawa closing, Sam Gindin urged the CAW leadership to go beyond negotiations to work on the transformation of the plant into a publicly owned and worker-controlled facility for the production of electric vehicles. Markets would be initially guaranteed by government contract. Financing and start up costs would also require government support that is impossible to imagine with a capitalist party in power, but not impossible to imagine with a worker friendly government (an NDP radicalised by the threat of a election drubbing?) Instead of treating capitalism as a fixed and final reality that workers must either accept today or overthrow tomorrow, it works in the spaces created by democratic institutions and norms to find means of inserting an anti-capitalist principle and practice into the heart of the system. It shows that there are real alternatives to survival and creative activity than capitalist labour markets that can be realised right now, creating the time we need to fundamentally transform society by expanding non-capitalist employment spaces. Short term dependence on paid capitalist employment is reduced by people putting themselves to work in a non-capitalist firm. The system is not transformed, but a living alternative is created that serves as a real, not text book example, that another world is possible.

It is certainly necessary to propose ideas that “point beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism.” Are there not, however, conditions for such ideas to be realizable in practice?

In the crisis situation in Oshawa, it may be that workers are more prone to accept solutions that point beyond existing social conditions. However, in a crisis situation, without prior preparation, it may well be that workers will grab at solutions that protect their own immediate interests at the expense of longer-term interests. It may also be that workers’ interests can more easily be divided so that the employer can take advantage of such splits. To counter such possibilities, it is necessary to prepare workers beforehand.

Thus, has their been adequate criticism of the structure of authority at the Oshawa plant? Has there been discussions about democratic control at work? Or have the workers there been constantly indoctrinated with the view that their work is “decent work?” That the collective agreement was a “fair contract?” That they received “fair wages?” That the power of an employer to close a workplace is “fair?” As I argued in another post, was there a critique of collective bargaining beforehand in order to prepare workers for going beyond the collective agreement? Or was there silence over the legitimacy of collective agreements? If so, would that not lead to confusion among many workers? If so, does such confusion not tell against the formulation of any consistent policy towards the large number of workers who will lose their jobs at the GM Oshawa plant?

Another relevant point here is how Professor Noonan speaks of “creating spaces”: the space was not created by the workers but by the employer (the decision to close the Oshawa plant). The workers reacted to this decision. It would have been much more intelligent to criticize the union ideology systematically beforehand rather than feeding into the union ideology of “decent work” and “fair contracts.” Did Mr. Gindin engage in such criticism? Or was he afraid to do so out of fear of alienating union representatives?

Furthermore, Professor Noonan relies on another sleight-of-hand by slipping in the fantasy that the New Democratic Party (NDP) would somehow magically turn into “a worker friendly government (an NDP radicalised by the threat of a election drubbing.” Like Professor Noonan’s logic in relation to the so-called harmonious interests of workers at the University of Windsor where he works and the management of that university, he assumes what he must prove: How the NDP can be converted into a “worker friendly government” under conditions of an economy dominated by a class of employers. The NDP and union representatives may think they are “worker friendly,” but they also share the same beliefs as their center and right-wing counterparts: the legitimacy of the employer-employee relation. The NDP may indeed enable workers to organize more easily and institute certain social reforms that may benefit workers more when compared to other political parties, but that does not make them “worker friendly.” They are more “worker friendly” than the other major political parties, but that is all. This does not magically convert them into a “worker friendly” political party. (Nonetheless, I am seriously thinking of voting for the NDP in the upcoming federal election on October 21, 2019 since their policies–such as a definite 360 hours of working for an employer required in order to be eligible for unemployment insurance as opposed to the current 720 for regular workers and 910 hours for beginning workers–are more specific than the vague guaranteed livable income, for example, proposed by the Green Party. Such vagueness can be transformed into minimal changes in income.)

Finally, it is typical of the academic left (and Sam Gindin falls in that category for, despite not being an academic technically, he shares many of their beliefs) that they avoid “creating spaces” in their own immediate environment. What, for example, did Mr. Gindin do to “create spaces” during his long stint as research director for the Canadian Auto Workers union? Did he try to create spaces that could “point beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism?”

What of Professor Noonan? Does he try to create spaces that could “point beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism” where he works? Might that not threaten his own livelihood?

Middle-class academics who are sympathetic to workers’ situation could provide welcome skills (such as research skills) to workers. However, they often lack the passion and emotions involved in real struggles for power: as Aaron Schutz, in his book Social Class, Social Action,  and Education: The Failure of Progressive Democracy points out:

But then, as Alinsky repeatedly pointed out, middle-class people were
pretty comfortable already. It did not really matter that much to them,
in concrete ways, whether anyone actually listened or not as long as they
had their say—in academic publications, for example. Their children were
unlikely to suffer much as a result. Near the end of his life, however, Alinsky
turned to efforts to organize the middle class, increasingly convinced that
those on the bottom needed allies from the middle if they were ever to generate
enough power to foster the change they needed and that the middle
class would also benefit if they learned to organize.

Middle-class leftists in Toronto and surrounding areas, as far as I can see, not only do not engage in some of the preparatory work necessary to enable workers for struggles that “would point beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism,” but go out of their way to oppose such preparatory work.

Before the announcement by GM of the plant closing in Oshawa, Mr. Gindin met with some workers from the plant. I did not accompany Mr. Gindin to Oshawa , but his preliminary account of a meeting between him (and, I believer, Herman Rosenfeld) and some workers at Oshawa did not go very well; it might have been a problem of logistics or some other problem, but I doubt that there was any real discussion of the limits of the present arrangement of employers controlling the conditions of life (the factory) of the workers in Oshawa (and elsewhere). Mr. Gindin, out of fear of alienating workers, probably did not bring up the systemic issue of the power of the class of employers and how that power plays itself out in various domains.

Furthermore, Professor Noonan fails to justify his assumption that worker cooperatives somehow magically provide “a living alternative is created that serves as a real, not text book example, that another world is possible.” Cooperatives have existed in the past and exist in the present, but to argue that they somehow automatically provide a living example of an alternative is quite debatable. How does Professor Noonan justify his assumption? He does not.

Even if the GM Oshawa plant were nationalized and turned into a worker cooperative, there is no basis for assuming that there would be a magical transformation that would point towards a society within a different logic from the logic of capitalism.

Mondragon, a large set of cooperatives in the Basque region in Spain, may inspire some to seek alternatives–but then again it may not. This requires research. One author certainly questions whether Mondragon provides “a living alternative.” Sharyn Kashmir, in her book The Myth of Mondragon: Cooperatives, Politics, and Working-Class Life in a Basque Town, provides a different assessment of cooperatives. For example, she quotes a worker at Mondragon (page 122):

Begofia was in her late twenties and had been a member of one of the
Fagor co-ops since she was eighteen years old. She had always worked on the
assembly line. Over dinner, she told me that she felt exploited at work, “just
like any worker in any firm . ”

“What about the fact that you share ownership of the firm ?” I asked.
“It means nothing to me” she replied. Begofia also said she felt “apathetic
” about the governance of the cooperative. “I only go to the annual meetings
of the General Assembly because it’s required. Everybody goes because
they have to. If we didn’t have to, we wouldn’t go.” What she resented more
than anything was being told that she was participating in managing the cooperative
and that “it is your firm .”

As Begofia spoke, I began to hear the words “participate,” “cooperate,”
and “your firm” in a new way ; listening to her, they sounded imposing.
Had I gotten the sense that Begofia was alone in her feelings, I would not have
taken her complaints so seriously. However, she continually spoke for her fellow
workers, implying that her experiences of alienation and feeling manipulated
by cooperativist ideology were common . Furthermore, most of those at
dinner had lived their entire lives among cooperators and did not seem surprised
by what she said. To the contrary, they offered anecdotal evidence of instances
of workers’ apathy and frustration that they had heard from friends
and relatives.

This does not mean that there should be no struggle to nationalize the Oshawa plant and to convert it into a worker cooperative. However, such a struggle should explicitly try to link a critique of the power of employers as a class to this particular situation–and to the inadequate solution of nationalization and worker cooperatives in the context of a society dominated by a class of employers.

Worker cooperatives in themselves, as long as they are unconnected to a larger critical movement to supersede the power of a class of employers, will unlikely “point beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism.”

As Minsun Ji points out (‘With or without class: Resolving Marx’s Janus-faced interpretation of worker-owned cooperatives,” Capital & Class, 2019,  page 3):

Among the conditions or factors that might shape the potential of a worker cooperative movement in any given time, the most important for Marx is the manifestation and political mobilization of class consciousness (or the lack thereof ) among cooperative practitioners. In the end, Marx did not so much focus on promoting a certain type of labor organization as being most conducive to transformation (e.g. worker cooperatives or labor unions). Rather, he focused more on the importance of class consciousness within labor organizing, and on the development of radicalized class consciousness among workers, whether through the expansion of labor unions, worker cooperatives, or any other institution of worker empowerment.

In order to become a significant and sustainable challenge to capitalist systems, Marx believed that cooperatives had to grow beyond their small scale and reach capacity to change the mode of production at the national level. To reach this kind of national scale, truly transformational cooperatives would have to become politically natured, and to foster the radical ‘class-consciousness’ of worker members. It is the presence or lack of this focus on developing and mobilizing class consciousness, not the nature of the labor institution itself (i.e. cooperative or union), that Marx believed to most powerfully shape the radical or degenerative tendencies of local forms of labor activism.

Since Mr. Gindin refuses to engage directly with the issue of the power of employers as a class (such as, for example, questioning union rhetoric about “decent jobs,” “fair contracts,” and the like), I predict, as I did before, that the Oshawa plant will not be nationalized and converted into a worker cooperative. Mr. Gindin and company have not done the necessary work to prepare workers to engage in a struggle that seeks to go beyond the class structure.

Even if the Oshawa plant does become worker-owned, it is unlikely to form a space that points “beyond existing institutions towards new models of public ownership and workers’ control incompatible with the logic of capitalism.”

In other words, and contrary to Professor Noonan, for such a strategy to work, it is necessary to start now (and not in some distance future) by querying the class structure. Professor Noonan continually seeks to fly away from the need to question the legitimacy of the class structure from the beginning. Why is that? Perhaps because of his own class situation?