The Perplexities of Worker Rights

Introduction

Rights talk makes economists nervous. Not all would subscribe to Bentham's notion that this is just high-minded hot air, what he called "nonsense upon stilts." Still, the influence of the utilitarian tradition and its predilection for positive rather than normative science makes most economists want to leave the room when the subject of "rights" comes up.

Despite the easy acceptance of rights politics across the political spectrum in the United States, economists' reaction is not necessarily inappropriate. In the nineteenth century the concept of human rights was so thoroughly criticized by conservative, liberal and socialist writers that it had little credibility in sophisticated circles. Remarkably, since World War II, "rights talk" has made a comeback in political discourse to the extent that the assertion of rights is now often the primary strategy taken by those who want to challenge (or defend) the political-economic status quo. And yet even some of the proponents of a rights based politics are now wondering what other agendas are crowded out by rights talk.

In the United States workers and their organizations have not generally expressed their demands in terms of rights. Recently the idea that "worker rights are human rights" has taken hold amongst labor advocates and scholars alike. This adoption of rights language is certainly related to globalization, but a full discussion of its genealogy is beyond my scope here. Rather, I would like to examine some of the perplexities of human rights in general and some of the contradictory effects we are already aware of—or should be aware of—when the interests of workers are asserted as rights.

The idea of human rights is perplexing. The assertion of rights has complex effects that are quite sensitive to the context in which they are asserted. There has been little examination of the possible negative effects on Labor's interests when those interests are asserted as rights. It is as if claiming that workers rights are human rights can only cause good things to happen. But this is inconsistent both with what we know about labor history as well as the history of human rights movements.

In this paper I begin by summarizing the critique of rights concepts by conservative, liberal and socialist thinkers in the nineteenth century and discussing the reemergence of rights language in the 1940s. I then summarize well known critiques of human rights language in contemporary politics that advocates of "worker rights as human rights" often fail to consider. I then present several examples of how the assertion of particular labor rights has undermined the interests of workers themselves.

My point here is cautionary, and I do not intend to provide a general critique of the use of rights language in the Labor movement. There are particular times and places when, on a purely pragmatic basis, the claim that worker rights are human rights can advance the interests of Labor. I examine some of these moments in the last section.

As worker rights advocates in the United States have adopted the language of human rights since the 1960s there has not been much discussion of how this language limits what they may be successful in achieving. For instance, the right to freedom from forced labor fits well with the contemporary human rights regime whereas the rights to freedom of association and to bargain collectively do not. And if the latter are the more potent tools in developing a humane and equitable globalization then neglecting the discursive constitution of rights comes at a high price.

Liberals, Conservatives, and Socialists Against Rights

In the early 1990s, Etienne Balibar pointed out that we hear so little about the politics of the rights of man because such a conversation would be embarrassing.¹ Since the middle of the twentieth century, "rights' as universal values and unconditional necessities have moved to the center of political discourse but there has been very little questioning of the conditions for the formation of such rights, their forms, or their objectives.

Rights tend to function as a foundation, self-evident and not worthy of deep investigation. The American historian Thomas Haskell has noted what he calls...