How does “Global Labour Justice” Work? Really.

Brian Langille

Faculty of Law, University of Toronto

Prepared for the Workshop on Global Justice and International Labour Law, University of Haifa, January 2012.

Very Preliminary DRAFT

19 December 2011.

I. Introduction

The questions in which I am interested arise, for me, in the following ways. First, what if the

idea of “capability”, understood in a way familiar to readers of the work of Martha Nussbaum, or

of the idea of “human freedom”, understood in light of Amartya Sen’s thinking, were central to

any meaningful and useful account or understanding of labour law? This would lead to many

questions such as, what are the implications of such a view for domestic our labour laws? And to

other questions such as, what are the implications for international labour law? There are at least

two dimensions to this brace of questions, one substantive and one procedural. First, we would

need to re-think the content of existing and future labour laws in terms of their contribution to

real substantive human freedom or capability. This is critical, in my view, because of the close

connection between human freedom and “human capital”, the regulation of the deployment of

which is the task of labour law.1 But there is another dimension to our question – one which

Sen’s ideas, especially, force us to come to grips with. This is the procedural dimension. On

Sen’s view human freedom is not only the goal, but a crucial aspect of the way there. What are

the implications of this view in which human freedom has this double helix structure? That is, if

we believe that human freedom is both the destination and the path, does that not force us to re-

consider the way in which labor law must and can only be “visited upon” or “made to appear in”

the world? And in particular does, then, the idea of freedom a “constraint” or limit upon how the

cause of “Global Justice” might be advanced in the world as we know it? And in what sense a

constraint? What is the relationship between our ideal of human freedom as an instantiation of

the concept of global justice, on the one hand, and as methodology for bringing it to the world?

This is an issue to which Nussbaum and Sen have paid some attention. But I wonder if a concrete

study of how labour rights, and international labour rights, actually “work’ might provide

illumination by way of a concrete example.

1 Langille, “Labour Law’s Theory of Justice” in Davidov and Langille (eds) The Idea of Labour Law (OUP, 2011)..

Second, a quick perusal of a subset of the literature on global justice - and in particular debates

which address labour issues at least to some extent - prompt me to ask whether there are

important gaps between the ways in which some lawyers, labour lawyers, and international

labour lawyers - or perhaps simply the law - approach the issue of global justice, as opposed to

the way followed, or tack taken, in political theory. For example, Iris Marion Young starts her

paper with the question “Do people in relatively free and affluent countries such as the United

States, Canada, or Germany have responsibilities to try to improve working conditions and

wages of workers in far-off parts of the world who produce items those in the more affluent

countries purchase?”2 What is the significance of the focus on the idea of “responsibility”? We

could ask the same question about the paper written by Dahan, Lerner, and Milman-Sivan

entitled “Global Justice, Labor Standards and Responsibility”3 What is implied about the nature

of labour rights, and how they might be delivered to the workers of the world who are currently

denied them, by this way of formulating the issue? I think quite a lot – both about the nature of

labour law and other important matters including development theory.4

Third, I wonder if there is a connection between these two questions. That is, I wish to explore

the idea that some of the literature on Global justice, when it turns its mind to issues of labour

rights, might be in the thrall of certain (non Senian) ideas about labour law which set it off in a

direction which labour lawyers increasingly doubt is the right one.

I wish to explore these questions by first, in Part II, outlining the way in which labour lawyers

think about global justice from a purely legal point of view. This outline is in a way both

technical but also very basic. Then, in Part III I will turn to labour lawyers’ understanding of the

normative ideas which drive the way we deploy or use this legal machinery. And here I will

argue that we are in the middle of a normative struggle at this point as the ideas of Nussbaum

and Sen assume a greater role in the thinking of labour lawyers about the justification for labour

law and labour rights and displace older and received ideas. My view is that their ideas require a

revolution in our thinking about labour rights – one which, as I argue in Part IV, has real

implications of for the debate about global justice.

2 Young, “Responsibility and Global Labor Justice” (2004), 12 J of Pol Phil 365.3 (2011), 12 Theoretical Inquiries in Law 117.4 See for another view, perhaps, Kolben, “A Development Approach to Trade and Labor Regimes”.

II From the ground up: the legal structure of labour rights

As a labour lawyer dabbling in the “Global Justice” literature I have been struck by the

frequency with which some very fundamental, yet often unarticulated assumptions are deployed.

Some of these reflect I expect a basic disciplinary divide in which that political theory is

sometimes abstract and not grounded in particular processes or institutional detail. Lawyers, even

international lawyers, on the other hand require a way of understanding how ideas of justice are

actually delivered or instantiated in the world as we know it. That is, their concerns about “social

justice”, or “social and economic” rights, have to mapped onto a structure of what I take to be

distinctly legal thinking about how these ideas can possibly be, and sometimes are, “made

available” in the world. This is not to say that there is only one type of law or that “formal” legal

structures are the only relevant means at our disposal in the world of “transnational governance”

of these issues. But it might be the case that the real issues are made clearer by viewing them

through this lens. This will enable us to see what is actually being replicated – or short circuited

– by other modalities currently available to us. I think that legal structure, operating form a

common law perspective (although I don’t think a civil law view would be different in any

important way) can be set out using a concrete example which has received a lot of attention in

Canada recently. The example has to do with the labour rights of agricultural workers in Ontario.

The question which has arisen - and led to revolutionary constitutional decisions from the

Supreme Court of Canada5 - are whether the Canadian Constitution (ie the Canadian Charter of

Rights and Freedoms) guarantees agricultural workers, who it is agreed are a particularly

vulnerable group of workers, certain basic labour rights – such as the right to bargain

collectively. (The answer the Court gives is ‘Yes’). The point I am after is that while these

questions may raise issues of both domestic and “global” justice, they arise in a particular way in

the formal legal system. Furthermore, to be able to see clearly the structure of legal thought in

play in these cases requires some unpacking of some very basic ideas. This takes a bit of time –

but the hope is that taking this time, and being clear about the flow of legal thinking in play, will

pay dividends when we turn our mind to understanding the normative thinking animating this

legal framework. In turn, this will also let us see, eventually, where and how debates about

global justice can and do enter this legal chain of thought, and if so, how exactly. This is all done

5 Dunmore (2001), BC Health (2007), Fraser (2011).

so that, in the end and as a result, we can clearly understand how sometimes these debatesmay

hit or miss the mark in their discussions of labour rights.

Private law as the starting point for understanding freedoms and rights

I believe that modern legal thinking about labour rights often loses sight of some very basic

legal concepts which we are well advised to keep in view. The first basic idea which often goes

missing these days is the distinction between rights and freedoms.6 There is, in spite of what the

Supreme Court of Canada says, a basic distinction between freedoms and rights. Rights have to

do with what I can demand that you do (pay me the $1000 price you agreed to in our contract) or

not do (not assault me). Freedoms have to do with what I am free to do or not do (to speak or not

- to think this or not this - to join a union or not - to worship a God or not).

It makes no sense - it is a bit of conceptual nonsense - to say “I have a right to freedom of

association”. Rather say, “I have freedom of association.” Of course people, and lawyers, and

judges DO say the former all the time – they speak of a right to free speech, or a right to freedom

of association, and so on, when what they are talking about are freedoms. This is one of our

problems.

This common way of talking is perhaps explained in our private law, but not excused, by the

fact that my freedom of speech, for example, is in fact protected by a “perimeter” of what are

correctly called rights. So, you cannot put your hand over my mouth to stop me exercising my

freedom to speak – or send a bunch of thugs round to beat me up because I have joined a union –

those would be torts – assaults. These tort and other normally applicable, formally equal,

“background” legal rules do in fact construct much the relevant legal structure in place when we

speak of free speech or freedom of association.7

6 See Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning (New Haven: Yale University Press, 1946). For an instruction manual see John Finnis, “Some Professional Fallacies about Rights” (1971) 4 Adelaide LR 377. See also Brian Langille, “The Freedom of Association Mess: How We Got into It and How We Can Get out of It”, 54 McGill LJ 177 [Langille, “Freedom of Association Mess”] at 198-201.7 I do not take any position on the basic justification for this background set of rules - in a Kantian system of equal liberty, for example, or elsewhere. But see Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy (Cambridge: Harvard University Press, 2009). I merely appeal to what all lawyers know – that our rules

Thus, it might be natural to speak of a “right” to free speech or association. But natural as it is,

it is more than potentially misleading because that to which I actually have a right is that you not

assault me (when I am exercising my freedom of speech or association). These are two separate

legal matters – my freedom concerning what I do, and my right about what you do.

So, that is the first very basic, but often lost sight of, idea – the right /freedom distinction.

Even more primitive is the second and often lost distinction. This is the distinction between

your actions which affect me or my interests, on the one hand, and your actions which violate my

legal rights, on the other.

For example, I am free to start a restaurant in town. So are you. My restaurant may have a big

impact upon you, your interests, and your exercise of your freedoms. If I start a restaurant and it

is very good it may drive your not very good restaurant out of business.8 This has a large impact

upon you but you have no legal claim against me. I have not violated your rights. My exercise of

my freedom has had an impact upon your exercise of your freedom and upon your material

interests. But here the freedoms simply contend – or contest – in fact. They do not conflict in

law.

So, here are the two very basic but often lost ideas – (1) the distinction between my actions

which affect you or your interests and my actions which violate your rights.9 And (2) the

distinction between rights and freedoms.

There is a third idea which is often lost sight of and intimately connected to the first two. It

follows from our ideas that because we cannot even get into court we have no worries about a

judge trying to “balance” the exercise of our freedoms. The idea of a judge weighing up our

interests is foreign to our understanding of contending freedoms. We do not want and do not

expect a judge to weigh up which of two competing restaurants deserves to “win” out. But, so

are ones which we all have equally (i.e. are formally equal in their application). This is their great strength and, as all labour lawyers know, their weakness as well. See infra.8 Or, given the “success” of McDonalds’, etc., the other way round – my not very good restaurant may drive your excellent establishment out of business. 9 Note that impacts can be positive or negative. That is, we all inflict gains as well as losses upon each other all of the time without attracting any legal scrutiny? or cause for alarm. So, if I have a hotel in our town, and your restaurant is awarded three Michelin stars, and my hotel business does very well indeed, and all thanks to you, there is no legal claim available. There is enrichment here – but it is not unjust enrichment. I have violated none of your rights and our freedoms merely co-exist. (Note: it may even be a story of mutual gains.)

too, if you do violate my rights then there is also no balancing or “proportionality” analysis

involved.10

Here is a very famous Canadian labour law example of our ideas lost in action.11 It is a labour

case involving what people used to call “secondary picketing”. In 1963 the Ontario Court of

Appeal issued its decision in Hersees of Woodstock.12 The facts were simple – there was a labour

dispute at a shirt manufacturing plant. The union approached a retail store selling the shirts and

asked them to stop selling. The store owner refused. The union picketed the store – two men

walked up and down on the public sidewalk with a sign which read “Attention shoppers: Deacon

Brothers [the name of the struck manufacturer] sportswear sold at Hersees [the name of the

shop]” and handed out leaflets. All very peaceful. All very Canadian.

The Ontario Court of Appeal began its judgement by making a mess of an analysis of some

economic torts (especially inducing breach of contract) but then the court, famously – almost

wonderfully – said the following:

But even assuming that the picketing carried on by the [union] was lawful in the sense that it was merely peaceful picketing for the purpose only of communicating information, I think it should be restrained. The [store owner] has a right lawfully to engage in its business of retailing merchandise to the public. In the City of Woodstock where that business is being carried on, the picketing for the reasons already stated, has caused or is likely to cause damage to the [store owner]. Therefore, the right, if there be such a right, of the [union] to engage in secondary picketing of [the store owner’s] premises must give way to [store owner’s] right to trade; the former, assuming it to be a legal right, is exercised for the benefit of a particular class only while the latter is a right far more fundamental and of far greater importance….13

This is, based on what we have just noted, obvious nonsense. Our three lost ideas show why.

First, the store owner does not have a “right” to “engage in its business”; it has the freedom to do

10 We do not want, and do not get, a judge saying things like - “Yes, the defendants burned down your restaurant, but you must understand that there they had a vital interest at stake - their business was suffering, they had rent to pay, and three kids in college, etc. - that led them to that course of action and it falls to me to balance your interests with theirs, etc.” Rather, we go from violation of right to vindication of it, unmediated by any balancing tests. Another and deeper point – this is so because if there is a violation of a right then costs and benefits are in fact irrelevant altogether (and thus there is nothing to balance). If while I am away you break into my house and host a nice dinner party, but clean up perfectly afterwards so that I have suffered no loss (the place is even cleaner than I left it) – that is still a violation of my right. And, again, it does not matter in law if it really matters to you in fact that you host a nice dinner party (your whole career will be ruined if you do not host a party for your boss.) The law is correctly unconcerned with all of that.11 Or is it lost ideas in action?12 Supra, note 14.13 Hersees, supra note 14 at 454.

so. The workers do not have a “right” to picket; they have the freedom to do so. Second, these

freedoms cannot and do not conflict in law at all. They merely contend in fact. Third, when there

is no legal violation of right (“even assuming the picketing was lawful”...) we do not need and

should not get to any balancing test at all.14

The problem with a judge saying that the right to trade is “far more fundamental” than the

right of the workers to picket is not that it is wrong (although you may agree with me that

freedom of speech and association are right up there with the best of them in terms of

“fundamentalness”) – it is, rather, that it is an insult to the basics of our legal system, which we

have just reviewed, for a judge to say anything at all. There is no judicial work to be done here.

Yes, the store owner’s interests may have been affected (some consumers stop buying in

solidarity) – but not its rights. Just as the store owner carrying on selling the shirts may have a

negative impact on the interests of the striking workers. But this is all legally meaningless –

there is nothing to adjudicate here. This is simply a case of contending freedoms. There is no

violation of a right. But we need our basic ideas to see this.15 When we do keep our eye on the

legal basics we can see that Hersees is just our “two restaurants” problem. And we need and

want the same solution to it here as we do there.

But sometimes our lost ideas, like prodigal sons, find their way home. As they did in Canada

in the 2002 Supreme Court of Canada decision in Pepsi Cola16 – after 40 years in the wilderness.

In that case the Hersees decision was relegated to the legal scrap heap. Pepsi Cola is a beautiful

decision.

The key facts were basically as in Hersees – striking workers from a Pepsi plant picketed retail

outlets selling Pepsi products. The employer objected in the courts, relying on Hersees. But the

approach taken in Pepsi is exactly the opposite of that taken in Hersees and explicitly so. It is an

approach which goes back to our legal basics and gets them right. The lost ideas find their way

14 This is leaving aside the fact that here the balancing is no balancing, rather a complete trumping of the freedom to picket by the freedom to trade.15 In a society which takes freedom of speech and freedom to trade seriously there is nothing legally interesting at all when, say, a group of students peacefully pickets a local fashion store to protest use of, say, seal skin coats from Canada, or clothing made in sweatshops abroad. And if consumers react, that is not a problem or even a legally relevant fact – that is the exercise of another freedom. It is the world working as it should. In the absence of a tort or some other legal wrong there is no legal issue to be litigated. And in a free and democratic society the last thing we want is a judge “balancing” these freedoms.16 Supra, note 15.

home.17 The Supreme Court said that correct approach was to hold that picketing (even

“secondary”) is to be permitted unless it involves a legal wrong (a crime or a tort). This is, as we

have seen, surely correct. There is no need for further “balancing” at all. For a court, or anyone

else, other than the parties, and those such as consumers to whom they appeal in a lawful

manner, to try to “balance” these freedoms is an affront to the freedoms – a contradiction of the

very concept of a freedom.

Statutes and the creation of derivative rights from freedoms

Now let us leave the common law world and move to what Canadian labour lawyers know all

about – collective bargaining legislation. In Ontario, Canada where I live, as contained in the

Ontario Labour Relations Act18.

We have seen that at common law we all have the freedom to associate. As we have seen, that

freedom is protected against actions of other private actors by the general and background

“perimeter” of common law rights, which we all enjoy. (So, again, you cannot send around a

bunch of thugs to beat me up because I have joined a union, because I have tort rights not to be

assaulted – and you have tort duties not to assault me.)

But sometimes, we do protect the exercise of a freedom from other interference by other

private actors with more than just the usual background system of rights and duties. Sometimes

we do construct in our legislation what I believe are properly called “derivative rights” – i.e.

rights derived from this freedom, for the purposes of protecting the exercise of that freedom.

That is, sometimes we interfere with the freedoms of others in order to protect workers’ freedom

to associate. We alter the normal background rules. We trade off one person’s freedom in order

to protect another person’s freedom. We alter the world of contending freedoms by creating

rights where none existed before. Labour lawyers are very familiar with this sort of legal move.

17 Although this case did not directly implicate any constitutional protections, the court saw the issue in which the law had to “balance” what it called the “values and interests” at stake – freedom of speech/picketing and freedom to carry on business. (Keep your eye on the way the word balance is used here – this is a key point.) The correct way to do this, the court held, was not to adopt the Hersees rule that secondary picketing was always illegal, nor to balance in a more nuanced way via well accepted legal ideas invented after Hersees such as the “ally doctrine” which aim at a more delicate balancing. 18 Labour Relations Act, 1995, SO 1995, c 1, Sch A [OLRA].

We are now at the stage where we can more fully deploy our statutory analogy. The

foundational provision of the OLRA is s.5 which reads: “Every person is free to join a trade

union of the person’s own choice and to participate in its lawful activities.”19 If all we had was s.

5 then that freedom would, as noted above, be protected by the normal perimeter of rights and

correlative duties. (Again, you cannot send a bunch of hugs around to beat me up because I have

joined a union.) But s. 5 is not all there is. There is more. Much more. First, the unfair labour

practice provisions from the Act:

s. 72 No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization, (a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act…

s. 70 No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union…

Then there is the duty to bargain in good faith:

s. 17 The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.

It is critical to note the following: These are not part of the normal background perimeter of

rights, such as my right that others not assault me, which happen to protect our freedom to

associate (along with much else). These statutory provisions construct very specific right/duty

relationships which are not part of the normal set of rules applying to all citizens. They are rights

and duties created specifically to protect this freedom (to associate) for this particular group

(employees). These are rights and are properly called “derivative rights” – they are derived from,

because they are necessary to the exercise of, freedom of association.20

Let’s start with s. 53(3). Without it, an employer is free to dismiss (with reasonable notice) an

employee who joins a union. Or not to hire such a person. That is just Christie v. York - at

19 Ibid. I tell my students that the rest of the OLRA is all just detail in support of s.5. S.5 is what it is “all about”.20 We will return to the issue about how we “know” when to create such derivative rights below – but we all know, see above, the basics of our answer. We create the derivative rights when we know that the freedom would not be worth the paper it’s written on without them. That is, we will have a sort of test of real necessity – or impossibility – along the lines that ‘the real exercise of the freedom, without these derivative rights, is not going to happen, given what we know about the world.’

common law we are free to contract with anyone (or not) for whatever reason we may have,

however odious.21 The whole point of s. 53 is to alter that legal world – which still holds for all

(almost) other reasons for hiring and firing, and contracting more generally. It alters the world of

formally equal and contending freedoms which the normal background rules construct. It does so

by limiting, most importantly, the employer’s freedom. This is done by granting employees

rights which impose duties on employers. Same with the duty to bargain.22 23

The constitution and the creation of derivative rights

Now, we can make our next move – from the statutory world to the constitutional world. And

we come to the payoff for this hard slog through the lost ideas and the idea that they are required

to make sense of what our common law and our statutes are up to. With this structure of thought,

made available to us by keeping our eye on our basic ideas, we can see what is going on in our

21 See Christie v York Corp, [1940] SCR 139 (a tavern owner defendant was free to refuse to serve the plaintiff on the because of his race) [Christie v York].22 The s.70 protection is really particularly interesting because it not only provides rights to employees to not be subjected to a specific action for a specific reason (i.e. the s. 72 duty to not dismiss an employee for joining a union), but it provides protections from the impact of certain activities, regardless of the reason for those activities. That is, it creates a “perfect” or complete protection for the exercise of the freedom – akin to restriction on the state imposed by constitutional freedoms. We know this will lead to some sort of “proportionality analysis”.23 But so too are employee freedoms constrained under by the great compromises the Act enforces. So - at common law, both union and employer had the freedom to bargain, and could chose not to entertain the representations of others, for whatever reason. That’s why (at times violent) recognition strikes occurred in Canada, and still occur elsewhere (For a particularly gruesome episode in Canada, see Stan D Hanson’s essay “Estevan 1931” in In Irving M Abella, eds, On Strike: Six Key Labour Struggles in Canada, 1919–1949 (Toronto: James Lorimer, 1975) at 33). And it was specifically these altercations that our statutes meant to eradicate by taking away the freedom to strike for recognition and giving the employees a right to have their unions recognized and bargained with in good faith, attached to a correlative duty on the employer, all as a means instrumental to the exercise of that freedom. Again the whole point is to alter the normal distribution of rights and freedoms and for the same reasons. This is done by converting background freedoms, which merely contend – as in our two restaurants example - into right/duty relations.

For our purposes it is important to see that what we are doing is creating, by legislative action, (derivative) rights to protect the freedom. Sometimes “we” do this - and often we do not. It most of the world of contracting we do not. But in the OLRA – and the Ontario Human Rights Code (RSO 1990, c H 19) – we express dissatisfaction with the “normal” world of rights and freedoms as expressed in Christie v York, supra note 32, where the freedom to contract was complete. (Again, to know when the ‘background freedoms’ need to be modified, we do need and do have a test.) The fact that we, through the organs of the state, intervene “positively” by creating rights and duties where only freedoms once existed does not – as the majority in Fraser seems to think it – magically eliminate the distinction between rights and freedoms. To the contrary, it highlights the necessity for the distinction because it is needed to make clear what sort of claim is being made in these cases, the legal test appropriate to that sort of claim, and the remedy required to satisfy that sort of claim as opposed to others.

recent Charter cases on freedom of association as set out in s 2(d) of the Canadian Charter of

Rights.

First, we now have s. 2 (d). What does it add to our common law freedom to associate,

protected by the normal common law background of rights against private actors, supplemented

by our statutory “derivative” rights against private actors? It is common ground among all

constitutional law scholars that what 2 (d) does, at a minimum, is to add to these rights against

private actors a new right against the state - that it not infringe the freedom as it so dramatically

has done on many occasions in Canada by interfering with collective bargaining.24 This is the

easy part.25

But now we come to the hard part. The hard part is not when does 2 (d) protect us all against

state interference with our freedoms. It is, rather, when does 2 (d) protect us against others

private actors interfering with our freedoms?

To put this in a form more natural for Canadian constitutional lawyers: when does the Charter

create, or force legislatures to create, derivative rights? That is, when is there a constitutional

duty on a legislature to pass laws restricting the freedoms of private actors - mainly employers -

which interfere with worker exercise of their freedom? When is there a constitutional duty – as

opposed to a good legislative idea – to alter the background rules? When is there what may be

called “diagonal” application of the Charter”?26

In light of all of the above we can see that the questions in our recent and famous cases are

best seen as follows:

(a) The Question in Dunmore was whether the state was constitutionally obligated by s. 2

(d) of the Charter to create for agricultural workers s. 70/72 type, derivative, unfair

labour practice rights, against private actors (employers)? Answer, yes.

(b) The Questions in B.C. Health were first, did the state violate worker freedom of

association by tearing up collective agreements and forbidding future negotiation?

24 See for example BC health Services, SCC 2007.25 But see infra; the Supreme Court of Canada is confusing the easy and the hard part.26 Langille,

Answer, yes. And second27, whether s. 2(d) required the creation of s. 17-type,

derivative, duty to bargain rights against private actors (ie employers). Answer, yes.

(c) The Question in Fraser was whether the state was constitutionally obligated by 2 (d)

to create all of the other important rights and duties of the OLRA (the “Wagner Act

Model”) beyond ss. 70/72 and 17 (such as “exclusivity”, arbitration, and so on).

Answer, at the Ontario Court of Appeal, yes, but at the Supreme Court of Canada, no.

But there is a very real problem lurking here which we are now in a position to put our finger

on. Dunmore/Fraser are derivative rights cases – they ask whether the employees’ 2(d) freedom

obligates the government to alter the background rules and create legislative derivative rights for

those employees (with correlative and attendant duties on other private actors – ie employers) in

order to protect the employees’ freedom.

But B.C. Health - like the Trilogy28 before it is not such a case – the claimants there were not

alleging that the state had a duty to intervene to alter the normal background rules governing the

rights and freedoms of other private actors. They were complaining that the state’s legislation

limited their freedom.

There is a very important distinction here between Dunmore type cases and B.C. Health type

cases.

Dunmore/Fraser is a case where the claim is that the government needs to “go to bat for” the

freedom by creating derivative rights. (It is a “going to bat for” the freedom case, or what I will

call a GTBF case). We are asking the state to “protect” the freedom from attacks by other

private actors. Dunmore and Fraser are hard cases.

B.C. Health is not that type of case at all. It is a case where the claim is that the government

has “taken a bat to” the freedom. (It is a “taking a bat to” – or a TABT - case) . It is an easy case.

We are simply asking the state itself to “respect” the freedom.29

27Amazingly, for it was not and could not be raised in the case for reasons we come to below. It is for this reason that I treat the case in what follows as primarily about the first question – and not a derivative rights case.28 Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313 [Alberta Reference]; PSAC v Canada, [1987] 1 SCR 424 [PSAC]; RWDSU v Saskatchewan, [1987] 1 SCR 460 [Dairy Workers].29 The language of respect/protect is found in a very familiar set of ideas used in human rights discourse. Human rights can be: 1. Respected by the state (the state itself must not violate the right or interfere with the freedom). 2. Protected by the state (the state must intervene to restrain other private actors (here, primarily, employers) from

B.C. Health is an easy, “Respect”, (TABT) case.30 Dunmore is a hard, “Protect” (GTBF)

case.31

Why does this distinction - TABT/Respect vs GTBF/Protect - matter? Because it is

fundamental.

In GTBF cases, in which the state is asked to create a derivative right, we will, as we have

noted above, need a test which marks this sort of circumstance off from the rest of the world

where freedoms are simply left to compete.32 We need an answer to the question - why is the

violating the rights and interfering with the exercise freedoms of others (here, employees)). 3. Fulfilled, Guaranteed or Promoted by the state (the state must provide, for example, schools to those with a right to minority language education.) For a nice example of the use of this typology and in a labour law context, see Judy Fudge, “The New Discourse of Labor Rights: From Social to Fundamental Rights?” (2007) 29 Comp Lab Law & Pol’y J 29.30 Recall what is said in footnote 36.31 This forces us to clarify another conceptual point and confusion which stalks these cases. In Canada it is said, 1. That the Charter applies to “state action”. It does not apply to private actors. And 2. There is, in general, no “positive duty to legislate”. What this adds up to is that in Canada, except in rare cases, all we have is a constitution which “Respects” – and does not “Protect” rights and freedoms from the exercise by other private actors of their own freedoms. In other constitutional systems the language used is slightly different and the rules often very different. In Europe, for example, people distinguish between “vertical” application of constitutions (state-citizen, or ‘respect’ scenarios) and “horizontal” application (citizen-citizen, or ‘protect’ scenarios). So, to translate, in Canada we have, in general, only “vertical” application of our Charter – this is just another way of saying we have a “state action” requirement. Now, what is going on in Dunmore/Fraser, but not B.C. Health, is that we are creating exceptions to this basic set of constitutional rules which apply “in general”. These are cases where it is argued that the normal rules do not apply. It is argued that it is not enough that the state itself not interfere with the freedom to associate (i.e. it is not enough the state itself “Respects”, stays out of the way, or refrains from “taking a bat to” the freedom). It is argued that the state must “Protect” the exercise of the freedom from the actions of other private actors (i.e. employers). That is, it is argued that the state must go to bat for the freedom and create “derivative rights” for employees against (with correlative duties upon) employers. In these cases it is argued that there is a “positive duty (which does not exist “in general”) to legislate.” In Dunmore this argument worked. In Fraser it did not. In B.C. Health the argument was not made – but it “worked”. Note: this does not mean that we have moved from “vertical” to “horizontal’ application of the Charter. The result is not that employers are bound by the Charter (no direct citizen-citizen application). We are in a sort of half-way house – what we might call diagonal application of the Charter. Employees cannot sue their employers for interfering with their freedom to associate, but they (well, at least agricultural workers) can sue the government for not passing legislation to stop employers from interfering with their freedom to associate.

In a GTBF case, what we’re asking is whether or not there is a positive constitutional obligation on the government to act by providing rights that can be enforced against other private actors. We’re asking whether or not, by not intervening in the contest of freedoms between private parties, the government has thereby violated a constitutional obligation. Although, in cases like Dunmore, attempts have been made to suggest that “state action” has limited the freedom, the real culprit is state inaction. On the contrary, a TABT case is a situation in which, but for the state’s intervention, one would not be prohibited from exercising their freedom in a specific way. So, in B.C. Health, but for the impugned legislation, individuals would have been free to associate for the purposes of bargaining over a wide range of important contractual terms. The issue here is that the state has stepped in, and has restricted the sphere of freedom of union members, because they were bargaining collectively. It is not about creating a derivative right, but rather about infringing on the freedom to bargain collectively.32 This is our point about Pepsi-Cola. In that case, the Court rightly decided to simply let the competing freedoms – the union’s freedom to picket, and the claimant’s freedom to conduct a business – compete. In other words, it overturned the erroneous creation of a derivative right (for the employer) in Hersees.

freedom of this person (the employer) to be altered, via the imposition of a duty upon them (i.e.

granting a right to the employee)? Why is there a “positive duty to legislate” here and not

elsewhere? Why is the normal constitutional default rule that the only obligation on the state is

to “Respect” the freedom not sufficient? Why do we move to diagonal application of the Charter

in this sort of case? 33

Statutory Labour Law has long had an answer to these questions in the idea that, because of

inequality of bargaining power, employee freedoms would be empty unless protected by a

perimeter of rights that is wider than the mere normal background tort and contract rights. But

does this answer work for the constitution?

Now this seems to be the sort of test articulated in Dunmore and Fraser for our constitutional

law. Only the test there is extremely stringent under which only very badly off workers get the

benefit. “Ordinary” workers, RCMP officers, Michelin workers, or even Walmart workers, do

not. So, in Dunmore Justice Bastarache distinguished the agricultural worker claimants in that

case from previous claimants for whom no Charter remedy was provided, such as the RCMP

officers in Delisle,34 on the basis that previous claimants could not show that the “fundamental

freedom at issue… was impossible to exercise” (emphasis added) without the state going to bat

for the freedom, by creating derivative rights.35 In Fraser, the Court reiterates that high standard.

But here is the main point: this is a test which we need only when we are demanding that the

state act by creating derivative rights. It is a test for the hard, GTBF, protect, cases.

This is not a test, it should be obvious, which has any role at all in easy, TABT, Respect cases,

like B.C. Health. The idea that there is a stringent test of impossibility to be deployed here is

very odd if you think about it. It is inconsistent with our basic understanding of the Charter. If

the government interferes with my freedom of speech – or religion – or any other freedom – the

test is not, has not been, and should not be, “has the state made it impossible to exercise the

freedom?” The test is, rather, whether the state has interfered with the freedom in a way that

cannot pass s. 1 muster under some version of the proportionality test.36

33 On the idea of diagonal application see supra note 39.34 Delisle v Canada (Deputy Attorney General), [1999] 2 SCR 989.35 Dunmore, supra note 9 at para 25.36As set out in the leading Canadian case R v Oakes, [1986] 1 SCR 103.

International labour law and the creation of derivative labour rights

To complete this legal chain of thought we are required to ask – when does international law

direct the creation of such labour rights – such as the “right” to collective bargaining for

vulnerable agricultural workers? There are two lines of development here – only one of which is

of real interest. First, in “monist” jurisdictions, such as Canada, the creation of international

obligations, such as an ILO Convention which Canada has ratified, has no impact in domestic

law until domestic legislation has been passed implementing the norms contained in the

Convention in the domestic legal order. Failure to pass such legislation may, of course, place

Canada in breach of its international obligations under the ratified Convention and subject it to

international legal processes and “remedies”. But this has no impact domestically. On the other

hand, if the legislature does pass a law implementing the internationally binding norms into

domestic law then we merely have the creation of statutory labour rights in the normal way as

outlined above. There is nothing legally new or exciting added by the fact that a rationale for so

doing was the existence of the international obligation to do so.

But there is something new and exciting about the second way in which international law can

have an impact upon domestic law. This is the way in which international law, particularly ILO

Conventions, had an impact in the Canadian agricultural worker cases. Here our chain of legally

relevant questions is completed as follows – when do Canada’s international obligations

instruct the Supreme Court to interpret our constitutional law as requiring that the legislature

pass a statute altering the background common law rules by creating derivative rights for our

vulnerable agricultural workers? To this question the Supreme Court of Canada gave37, and

continues to give38, a very broad answer. They have held that “Canada's Charter of Rights should

be presumed to provide at least as great a level of protection as is found in the international

human rights documents that Canada has ratified.” 39

Here is the point I am after - this is the Canadian example of the complete legal train of

thought which delivers the goods of global justice for workers. International law instructs

constitutional law as to what legislative law must do to alter the common law background of

37 BC Health. Langille, “Can we rely?”38 Fraser, Langille. “Canada and ..”39 B.C. Health para 70.

formally equal right and freedoms in order to protect workers’ rights. That is the legal structure

for the delivery of international labour standards to the workers of the world.

Of course a large part of our problem in the real world is the non-delivery of real labour rights

and freedoms via this train of legal thought. This may be the result of nonexistence of various

links in the legal chain – a lack of constitutional protection, or of adequate international

standards for that matter. (De jure failure). Or, even more typical perhaps, not a formal legal gap

but a real world lack of capacity to run effectively, ie in a way which actually protects worker

freedoms and rights, a formally complete legal system which is in place. (De facto failure).

III Putting normative flesh on legal bones.

What we have just outlined is what may be seen as the legal structure for delivering global

justice by legal means. Not the only but certainly a not unimportant method of delivery.

But the legal structure does not tell us what we should be doing – it tells us how things can be

made to work, form a legal point of view, when we wish or have reason to have those things

work. It is, in a word, a “legal” way of thinking. True, when we decide to do things via law that

brings with it law’s own “internal” morality as Fuller put it40. But the “external” morality which

we ask law to advance has to be provided from normative sources located elsewhere. On the

other hand, one cannot help but notice that there surfaces in the description of the formal legal

chain just outlined a set of explicit empirical observations about the world – inequality of

bargaining power between workers and employers – and a set of normative conclusions taken in

light thereof – something ought to be done about this (creation of worker rights). Nonetheless,

the description of the formal set and chain of legal decision points and devices stand alone. The

fact that we have been animated to deploy them in certain ways, in light of certain beliefs about

the state of the world and certain values, does not detract from this point. Now the interesting

point in all of this, as I suggested at the outset, is that there is another way of understanding the

value of labour rights and why we are concerned to manipulate the legal options available to us

40 Fuller, The Morality of Law.

in order to advance their cause. That is, we need and have at hand a better normative justification

for labour rights than we have hitherto noticed. Let me explain.

Labour Law’s Constituting Narrative – Old and New Versions.

The idea of human freedom is, in my view, central to any understanding or account of labour

law with any viable and long term future. I have come to this view in the following way. Subject

matters like labour law, unlike many other legal subject matters, make there was in the world by

being able to justify a legal focus upon a dimension, or slice of, real life. Such justifications

must and do consist in three parts. First, such accounts must provide a clear empirical description

of the singled out dimension, or slice (ie, the field) – say, work or employment. It must, second,

identify the key conceptual building blocks necessary to capture and legally deal with the real

world of work – say, “employer”, “employee”, “contract of employment’, and so on. Finally,

such accounts must and do stake a normative claim, that is, a claim that justice requires us to

attend to the overall legal regulation of specifically this dimension of life – say, that justice (say,

some measure of concern and respect) for workers will never be secured in employment relations

because of inequality of bargaining power between employers and employees. When these three

elements are in place – as they have been for labour law as a legal subject matter since the

beginning – then we have a self-constituting narrative for the field which eventually becomes the

“received wisdom” which every labour lawyer “knows’ in a deeply implicit way. It explains

what cases to read, which controversies are labour law’s controversies, what labour law firms

and government departments and labour lawyers are about and are in business to do. It also gives

us a rationale for international labour law. On this standard view labour law speaks justice to

markets and is a series of constraints on economic activity. It can be best seen as a tax on

markets – a fairness, or “decency” (to use the ILO’s new favourite word) tax. But in a world of

mobile capital nation states will find it increasingly hard to maintain traditional tax levels as

capital seeks out lower tax regimes around the world. We will have, inevitably, tax competition,

regulatory competition, of a certain sort – a race to the bottom in labour regulation. This is

simply the way it must be on the standard view. And the reason we have international labour law

– ILO law paradigmatically – is to stop this race from occurring by putting in place binding and

enforceable international agreements to not engage in regulatory competition below agreed

norms. That is what ILO conventions are for. So, when seen in full this account of our labour

law is a very compelling package. And as I have argued repeatedly, many are indeed in its thrall.

And, as I have also argued, this all increasingly looks like a large error in thinking.41 Useful for a

while. But now out of date – empirically, conceptually, and normatively. Further, as suggested

at the outset, that Sen’s ideas about human freedom, provide the basis for a fundamental

rethinking of the purposes of our labour law leading to a quite radical and more positive account.

Also one which can make sense of the data – for example, that there is no race to the bottom.

This is an empirical result which is impossible on the received wisdom of labour law.

What would a Senian of our labour law look like? I have recently been putting a quick answer

to this question as follows:

If we could think clearly and from first principles then our starting point would be that the purpose of labour regulation is to improve the lives of the inhabitants of the world, insofar as work has something to do with it. And work has a lot to do with it. This is because, in Sen’s formulation, our goal is real, substantive, human freedom – the real capacity to lead a life we have reason to value. Development, in Sen’s terms, consists in the removal of barriers to human freedom so conceived. The reason that labour law has a lot to do with this enterprise is that there is an intimate connection and fundamental overlap of human freedom, on the one hand, and human capital, on the other. Human capital is here not thought of, as is common, solely in economic or instrumental terms (indirectly contributing to productivity and GDP growth) but also as an end in itself (directly contributing to a more fulfilling and freer life). Labour law can be seen as that part of our law which structures the mobilization and deployment of human capital. Human capital is at the core of human freedom. Labour law is at its root no longer best conceived as law aimed at protecting employees against superior employer bargaining power in the negotiation of contracts of employment. That is a now an empirically limited and normatively thin account of the discipline. Rather, we can say that labour law is now best conceived of as that part of our law which structures (and thus either constrains or liberates) human capital creation and deployment. Education (“Education is

41 Langille, "Seeking Post-Seattle Clarity - And Inspiration" in Conaghan, Fischl, Klare (eds) Labour Law in An Era of Globalization (Oxford University Press, 2002) 137-157; Langille, "Labour Policy in Canada - New Platform, New Paradigm" (2002), 28 Canadian Public Policy 133-142; Langille, “Re-reading the 1919 ILO Constitution in Light of Recent Evidence on Foreign Direct Investment and Workers’ Rights” (2003), 42 Columbia Journal of Transnational Law 101-113; Langille, “Core Labour Rights – The True Story” (2005), 16 European Journal of International Law 1-29; Langille, “Globalization and The Just Society: Core Labour Rights, the FTAA, and Development”, in Craig and Lynk (eds.) Globalization and the Future of Labour Law (Cambridge University Press, 2006) 274-303; Langille, “Labour Law’s Back Pages”, in Davidov and Langille (eds) The Boundaries and Frontiers of Labour Law, (Hart Publishing, 2006) 13-36; Langille, “The ILO Is Not a State, Its Members Are Not Firms” in G. Politakis (ed.) Protecting Labour rights as Humans Rights: Present and Future Of International Supervision (ILO, Geneva, 2007) 247-257; Langille, “The Future of ILO Law, and the ILO”, in The Future of International Law (Proceedings of the American Association of International Law 101st Annual Meeting) (2007) 394-396; Langille, “What is International Labour Law For?” (2009), 3 Law and Ethics of Human Rights 47-82; and Langille, “Putting International Labour Law on the (Right) Map” forthcoming in Blackett and Levesque (eds.) Social Regionalism in a Global Economy (Routledge, 2009.); Langille, “Imagining Post Geneva Consensus Labour Law for Post Washington Consensus” (2010), 31 Comparative Labour Law and Policy Journal 523.

the key to all the human capabilities”) and, especially, early childhood development strategies, are critical to human capital creation. But so is the set of policies which govern the lives of human beings when they enter the workforce – whether as employees, independent producers, or under any other legal rubric or economic arrangement or relation of production. Human capital must not only be created, it must be utilized, effectively deployed: that is, in the best sense of the word, exploited. In the modern world of the “knowledge based economy” human capital will be as physical capital was to the industrial revolution. Getting human capital policy right will be critical to nations such as Canada and any other state attempting to structure a just and durable economy and society in the modern, and “globalized”, world. Or, as Alain Supiot recently re-stated what he called a “simple idea” – “there is no wealth other than human beings, and that an economy which ill-treats them has no future”.

The law which governs these critical dimensions of our common life is labour law. That is a large category. It would include much that we now exclude. But although we have burst the bounds and the comforts of the old way of thinking, we also have the answer to, or perhaps relief from, Freedland’s “anxiety”: we have not cast off and become adrift from our normative moorings for we have found deeper ones in the positive idea of human freedom.

The link between this conception of labour law and development, understood in Sen’s terms as removing obstacles to human freedom, is deep and has yet to be fully explored. The agenda for labour law is not the complete agenda of human development – there will still be laws and agencies and agendas concerning health, trade, the environment, macroeconomic stability, and so on, at domestic, regional, inter and supra national levels. There will be overlap, as now, but also more powerful centres of gravity. Sen has addressed the issue of the connection between human capital and his foundational idea of human freedom which he views as “closely related but distinct”. His insight is that in recent times economic theory and public policy discussions have shifted from seeing capital accumulation in primarily physical terms and come to recognize “human capital” as integrally involved. He notes that there is no necessity to limit the idea of human capital to instrumental justifications, in practice that is how it is discussed. As a result, that idea has to be supplemented by the idea of human freedom which brings to bear intrinsic justifications. So, as Sen writes, “if education makes a person more efficient in commodity production then this is clearly an enhancement of human capital. This can add to the value of production in the economy and also to the income of the person who has been educated. But even at the same level of income a person may benefit from education, in reading, communicating, arguing, in being able to choose in a more informed way, in being taken seriously by other, and so on.” Thus the two concepts are closely related. As Sen puts it in Development as Freedom: “If a person can become more productive through better education, better health, and so on, it is not unnatural to think expect that she can, through these means, also directly achieve more – and have the freedom to achieve more – in leading her life.” The relationship between the two ideas is not, however, simply cumulative but integrative. This is because even though human capital is important for productivity and economic growth we need to know “why economic growth is sought in the first place”.

The idea motivating this project is that such a “positive” (ie not simply negative – as in labour is not….”) set of ideas must lie at the centre of a more robust account of what it means when we say “labour is not a commodity”. We need an idea such as “human freedom to lead lives that people have reason to value and to enhance the choices they have” to do that. Or, more simply, “human beings are not merely the means of production, but also the end of the exercise”. So, on this view of our new thinking about the category of labour law we can say: its subject matter is the regulation of human capital deployment; its motivation is both the instrumental and intermediate end of productivity and the intrinsic and ultimate end of the maximizing of human freedom.

The law which governs these critical dimensions of our common life is labour law.42

Our question is now the following – what are the implications of such a change in underlying

normative foundations for the use of the legal architecture, the legal chain of reasoning, which

exists for the legal delivery of our ideas of a just world for workers? Further, what is the

implication for the role of international or global labour rights in all of this?

Human Freedom/Capabilities and Domestic Law

It is really Martha Nussbuam who has been the more explicit about linking the normative

basics of the Sen/Nussbaum approach, on the one hand, to the legal order just outlined, on the

other. In her recent and accessible Creating Capabilities43 Nussbaum helpfully outlines the

capability approach (CA) in a manner which clearly places labour laws in focus. A critical idea

in the approach is that of “combined capabilities”, an idea intuitively obvious in some ways to

labour lawyers.44 The CA is interested in “the real opportunities open to each person” – that is,

what each person is “actually able to do and to be”.45 This is not a matter of what they actually

choose to do - that is, in the lingo of the CA, it is not a matter of actual “functionings” - but of

real choice and thus real agency.46 This is what Sen calls “substantial” or simply “human” 42 43 Harvard 2011.44 Indeed one of her starting points is Dickens’s Hard Times - at p14.45 46

“freedom”.47 This is a liberal and pluralist vision. But in Nussbaum’s hands this critical idea of

“substantial freedom” is explicated through the idea of “combined capabilities”. This is an idea

which, when grasped by labour lawyers, an obvious one. The combination referred to is that of

“internal” capabilities – ie personal abilities residing “inside a person” (not simply innate, but

also learned thorough education, etc.) - and “the political, social, and economic environment” in

which they are to be exercised. A simple example of why we need combined capabilities –

“Many societies educate people so that they are capable of free speech on political matters –

internally – but then deny them free expression in practice through repression of speech.”48

Or another which is closer to home for labour lawyers – “Many people are internally free to

exercise a religion do not have the opportunity to do so in the sense of combined capability,

because religious free exercise is not protected by the government”.49 Think of our freedom of

association example set out above.

So, on the Capabilities Approach, a “decent society”50 has two tasks – to cultivate and promote

the development of internal capabilities, and to create the avenues through which people actually

have the opportunity to function in accordance with those internal capabilities. And thus claims

of citizens can be of two fundamental types – against conditions which prevent the exercise of an

internal capability and, deeper, against the “stunting” or “warping” of the development of

internal capabilities.51 At the core of all this is the idea or real substantial freedom – what Sen

calls the real ability to lead a life “we have reason to value”. Or in Nussbaum’s language: “a life

that is worthy of the human dignity that they possess”52. On this view human freedom is not

solely an internal matter – but a “social project.”53

In her Harvard Law Review “Forward”54 Nussbaum articulates these ideas within the context

of the legal architecture set out above in a more explicitly legal manner. Here the jobs of

government and of the constitution are explicitly stated within the capability approach. On this

47 48 p.2149 p.2250 p. 2151 p. 3052 p.3053 Sen54 Nussbaum, The Supreme Court 2006 Term. Forward: Constitutions and Capabilities: “Perception” Against Lofty Formalism” (2007), 121 Harvard Law Review 4.

view “it is the job of government” to “produce the combined capabilities”55. Further, the CA

“holds that a key task of a nation’s constitution…is to secure for all citizens the perquisites of a

life worthy of human dignity – a core group of capabilities – in areas of central importance to

human life”56 (Emphasis added). In this regard Nussbaum is of the view that the American

Constitution has “done very well” protecting some capabilities “namely, those enumerated in the

Bill of Rights” but that it has done far less well regarding “capabilities in the areas covered by

social and economic rights” noting that this job has been “largely left to legislative action”.57

As we have seen this is familiar legal territory. We have noticed that the issue of social and

economic rights (say to collectively bargain) is often just the question of whether to alter the

neutral and formally equal set of background rights of other private actors – and not simply to

regulate the conduct of the state itself, positively or negatively.58 In Canada we have had for

some time a consensus that such legislative action is a good idea (based for decades on the

received wisdom that “inequality of bargaining power” required rejigging of the normal rules of

freedom of contract – all as explained above). But the constitutional judgements of our day have

been and are much harder. We can begin by noting that one possible constitutional position is

that of Lochner v New York59 - that the constitution forbids the legislature to alter the

background rules of freedom of contract. This has never been and is not on the table in Canada –

for reasons which I think are best explained by an intuitive constitutional grasp of the need to

attend to real substantial as opposed to formal freedom. So, alteration of the background rules -

to create collective bargaining rights protection in favour of workers by rewriting the normal

rules governing employers’ freedoms - is not constitutionally suspect. But it is also not very

often constitutionally required - we must note that the current Canadian position is that even if

we sometimes do hold that there is an obligation to alter the freedoms of other private actors –

this is subject to a constitutionally stringent test that the freedom of the workers involved would

be “impossible” to exercise without derivative right protection.60 So, “ordinary” workers, such as

Wal-Mart workers, do not have this sort of constitutional protection. But very vulnerable (often

because migrant among other things) agricultural workers do.

55 p.1256 p.757 p.5758 Tushnet, Weak Courts Strong Rights.59 196 US 45 (1905)60 Supra n and text.

We need to attend to one of the legal decisions points we noted above at this point – a point

which Nussbaum does not dwell upon. There is a very real distinction between the idea that the

state owes “positive”, if you wish to use that term, obligations to its citizens to realise social and

economic rights in the name of real capability and substantial freedom. It is quite another to say

that the state has an obligation to interfere with the “ordinary” freedom of some citizens in order

to promote the freedom of other citizens. It does no good to point out that the state is always

involved with the background rules. That Tushnet and others have made wonderfully plain.61 All

that does is remind us that we are always doing something. But it leaves the important question

unanswered. That question is - what should we do? And when our goal is real human freedom

then we will need a very good explanation of why the normal background rules of formally equal

freedom for all are to give way to new worker rights and employer duties – to collectively

bargain for example.

Human Freedom/Capabilities and the limits of International Labour Law

Now, let us return to the final link in our legal chain – the idea that the international labour law

of fundamental labour rights can and does instruct domestic constitutional law on the

requirement to enact derivative rights legislation which alters the background formally equal

distribution of rights and freedoms in the name of protecting fundamental worker rights. It is a

legally wonderful fact that this idea has actually generated a very concrete controversy in

Canadian labour law in connection with agricultural workers (and other workers as well). The

reasons for the use of the word “wonderful” are complex, and many. But among them is that it

provides a very specific example of the problem of the global labour rights idea. And it is an

example which, I believe, brings the Sen/Nussbaum thinking into play. Let me explain.

The actual controversy to which I refer is one over the meaning of a constitutional “right” to

freedom of association. The Supreme Court of Canada in its recent decisions has found that this

constitutional guarantee does comprehend a freedom to collectively bargain. This I believe,

along with most of not all commentators is correct. The controversy has been about the actual

concrete legal content of a constitutional freedom to collectively bargain. Specifically, does it

61

include a “duty to bargain” upon employers? The Court said yes. But leaving aside the resolution

of that debate within Canadian law we can profitably pay attention to its structure and the real

nature of the problem that the question poses. If we go back to the review of the legal chain of

reasoning we can remind ourselves that from a legal point of view the question of the existence

of a duty to bargain is really the following legal question. Does a right to collectively bargain

merely mean that workers and their unions have a right that the state not interfere in their

exercise of that right? Or does it mean that private actors are to be affected as well? More

specifically, does the existence of the employee freedom demand the construction of a derivative

right against employers, one which overturns their common law (normal, formally equal to all)

right to bargain with whom they choose, and subject them to a duty to bargain with a union

chosen by the workers? To put it another way - is the freedom to collectively bargain, which we

all agree is constitutionally guaranteed, sufficiently protected by protecting it with the normal

background right protection, and protection against state interference, and then simply letting it

contend with the employers equal freedom to bargain – as in our two restaurants or picketing

examples? Or does its protection require the construction of derivative rights against private

actors (ie employer) generating a duty to bargain? That is the legal question. Now, why is that

question of domestic Canadian constitutional law of relevance to the debate about global labour

rights?

Well, first, from the normative point of view we can put it another way – does the idea of

substantial freedom or combined capability require the creation of a new legal rule here – ie the

duty to bargain in good faith? That is, we believe that the internal capability to bargain is

insufficient if sent into the fray of collective bargaining alone to be met with the employers equal

liberty to refuse to bargain (not, recall, to send in the thugs, but simply to refuse to deal with the

union.)

And, second, from the real world of collective bargaining law in most countries we learn that

that duty does not exist.62 This is very surprising for most Canadian labour lawyers because, as

we have seen, they have been living with a statutory model which has been imposing this

derivative right for decades. But it is not a requirement of any ILO Convention. Nor of ILO

jurisprudence.63 Indeed, it would be surprising if it were because it is not part of the domestic

62 63 Can We Rely?

order of the vast, majority of ILO member states and if it were a requirement of international

labour law they would all be in breach. It is, in fact, a very peculiar North American idea – a part

of the idiosyncratic “Wagner Act Model”.64

What are the lessons here? They are probably many, but for our purposes we might draw

attention to the following two in particular. First, that there are limits to what international labour

law can do for us. Second, that this is not a surprise on the Sen/Nussbaum view of what the point

of the global labour rights agenda is, and how we might make progress in advancing it.

First, it is wrong to expect international law to instruct us on any hard legal question of the sort

posed in the “duty to bargain” case. That is not its job. So, to quote Jean-Michel Sevais,

ILO conventions use very general terms that can serve as a basis for various systems of industrial relations. International labour standards do not seek to impose a specific system. Since every domestic legal order has to integrate countless political, economic, social and cultural factors including a historical component it would be unrealistic to put forward more than minimal rules, basic principles that can be transplanted into most if not all national systems. ILO law therefore aims to reconcile defence of the general principles of freedom with respect for the individual characteristics of each country when it comes to the technical means of incorporating those principles into domestic legislation. (Emphasis added).65

But this is not simply a matter of the empirical reality of life for global labour rights. There is,

I believe more. As I have attempted to explain elsewhere,66 there are very important reasons

underlying this observation about how much we can and should ask of international labour law.

The reasons are to be found in the ideas of Sen and Nussbaum, although perhaps more in Sen

whose commitment to human agency is basic.67 As we noted at the outset the standard and

received view of labour law leads to a standard and receive view of the role – and thus the

required nature – of the law of international labour rights. On this view the object of that law is

the forestalling of a race to the bottom and this requires an international law which is capable of

restraining nation states in their rational pursuit of their self- interest. This leads to a requirement 64 The Canadian Supreme Court held that there does exist the constitutional derivative right – ie that the constitution instructs the legislature to rewrite the background rules to create it. (It actually misread the international law on the point in so doing.)65 J-M Servais, International Labour Law, (Kluwer, 2005) at para. 240.66 Langille, Geneva Consensus.67 Crocker, The Ethics of Global Development (Cambridge 2008) at chs 4-6 distinguishing Sen from Nussbaum in this point.

for a hard law model – of concrete and detailed law, amenable to adjudication and capable of real

enforcement. As I have explained elsewhere at greater length this has long been the dominant

model for ILO law and ones which still lingers, powerfully, particularly in the International

Labour Standards Department in ILO Geneva. The other side of this coin is the ongoing

domestic belief (in the Supreme Court of Canada, for example) and hope that international

labour law can instruct on the type of concrete example we have been discussing – protecting

agricultural workers’ basic freedom to bargain collectively. But all of this is called into question

by our rejection of the received rationale for domestic labour law and thus of international labour

law. On this view it is the task of the ILO not to constrain the self-interest of its member states

but help them both to see where it really lies and how to achieve it. Intrinsic to this revolution in

our thinking is the very idea of human freedom as articulated by Sen. This idea militates against

the basic model of a detailed international (or Geneva) “consensus” about the instantiation of

labour rights in any particular place. We should, on this view, be as suspicious of a Geneva

consensus as we were of the “Washington consensus”.68 Inherent in these ideas is the notion that

development in any of its dimensions cannot be “injected” by outsiders into a reality lived by

others Rather, pragmatically realizable and normatively worthwhile development must be

anchored in the idea of agency and authorship. This is why freedom and freedom of association

in some form is basic. It is true that that there are situations of brute blockage of labour rights in

a manner which is inconsistent with any conception of human freedom. It is also true, as we have

seen, that international norms cannot provide anything like the detailed legal code necessary to

bring real labour rights - even core ones like collective bargaining - to life. But most of the time

and in most paces the real problems lie elsewhere – in de facto inability to deliver upon local and

adequate norms. The problems are those of capacity. But when a basic right is in issue, as

opposed to our ability to deliver upon it, as in the agricultural workers case we have focussed

upon, we again see the “limitations” and “constraints” inherent in the human freedom approach.

But these are only constraints in the sense that they are the preconditions to success made clear

by a view in which freedom is both the destination and the path.

This takes us back to the idea of responsibility upon which many in the “Global Labour

Justice Debate” seem to be fixed. Responsibility, as a central concern, seems on this view to be

misplaced as the key question if this is taken to mean something like ‘we are implicated in the

68 Langille

creation of this mess and therefore it falls to us to help clean it up’. This is a view which fits

better with labour law’s older and received wisdom. This is the view, as we have noted that it is

labour law’s duty to come to the rescue of the powerless. Here the notion of responsibility

resonates rather clearly. But if the purpose of labour law is to advance the cause of substantial

human freedom then the idea of responsibility must be reframed. On this view we can see that

for both self-interested reasons (we will have greater trade with and investment in other countries

if they are open societies) and other regarding reasons – human freedom is intrinsically valuable

– that assisting other states first understand their self-interest in providing the public goods

necessary for combined capabilities, and then aiding in building the capacity to do so, are the

main items on the global labour justice agenda. Nussbaum is wary of the idea of doing away

with the state in our thinking – or the direct empowering of global institutions - because of the

moral importance of the link between the state and people’s autonomy.69 There is also the point

that “differences in history and culture have a legitimate bearing on a nation’s interpretations of

the capability threshold for specific capabilities”.70 Perhaps this is something more than made

clear by our Canadian example concerning the ‘duty to bargain’. There is a limit to how much

we can expect international labor right machinery to do. But the more important point is that

there is a limit to how much it should do. Agency is important and, as Sen puts it, we must

attend not only the opportunity aspect of freedom, but the “process” aspect of freedom.71 If we

take freedom seriously then we need to think very carefully about what it is we could and should

be “responsible” for. Such a perspective makes it clear that what is both pragmatically possible,

and normatively desirable, are not only outcomes for which others must take ‘responsibility’, but

processes through which the capacity of others to be in a position to be responsible, are nurtured

and developed.

69 Nussbaum, Creating Capabilities, 113.70 P. 12071 Idea of Justice, pp. 370-371