“Do me a favor, just get your union guys, your leaders to endorse me. And I’ll take care of the rest … your current negotiations don’t mean as much as you think.” Donald Trump speaking to striking autoworkers in Michigan.
Today’s U.S. labor law scholarship typically asserts a broken or dead discipline. With a mere 6% of private sector workers in unions or covered by collective bargaining agreements, labor law appears irrelevant to most workers. Scholars thus try to come up with ideas to rebuild labor law through novel interpretations of statutory texts or through statutory reform, such as the Employee Free Choice Act and the Pro Act. While attempts to breathe new life to U.S. labor law via legal reform is important, sometimes it makes sense to reflect on how labor law as a political project came to being, how it lost its luster, and how to rebuild it. Democracy at Work: Contract, Status and Post-Industrial Justice, by Ruth Dukes and Wolfgang Streeck, a law professor and a sociologist, respectively, draws on this this tradition anchored in political economy and the social sciences.
Labor Law as Part of a Political Project
According to the authors, labor law was an essential part of a 20th century project aiming to build an entirely new political economy (P. 6). They highlight the work of American socio-legal scholar, Phillippe Selznick and German legal scholar, Hugo Sinzheimer, to explain how labor law played a key role in reconstructing institutions to sustain a bigger project for “industrial democracy.”
Selznick, writing in 1969, favored labor unions because they could moderate inequality and cement common values. For Selznick, firms were thirsty to move out from systems based on arbitrary power toward “legality” (P. 25). While firms did not necessarily want labor unions, a certain consensus emerged: labor unions could help develop that legality (P. 26). Selznick thus conceptualized firms as a polity, where union workers, backed by labor law, could prevail as rights-bearing citizens with a voice (P. 26).
Sinzheimer wrote decades earlier than Selznick, in pre-Nazi Germany. He was associated with the brain trust of the Weimar Republic (1918-33). Like Selznick, he argued that labor unions could serve useful roles in regulating the economy. A democratic government needed to help create unions via a “constitution” (P. 36): “a set of legal rights and procedural rules intended to facilitate the involvement of labor as a collective actor….” (P. 36). Labor law was one piece of that constitution (Pp. 36-37).
Read together, Selznick and Sinzheimer contribute to an idea of industrial democracy.
Contract and Status
One of the main functions of industrial democracy was to give workers a new status, that of industrial citizens, be it at the firm and/or government level. That new status replaced earlier ones afforded by tradition or custom: “father, wife, master, servant.” (P. 6). By status, Dukes and Streeck refer to rights and obligations that accrue to parties by reason of their membership in a socially or legally defined group (P. 6). The alternative to status is contract, or voluntary agreements where parties set up terms for themselves (P. 6).
Reformists accepted the status/contract dichotomy and argued that labor law could liberate workers from traditional status roles, and give them the capacity to contract meaningfully, as workers, no longer tethered to ascribed roles from the past (P. 8).
In the 1970s, however, capitalism entered a state of crisis that led many industry leaders to rethink, among other things, the idea of industrial democracy and its statuses (protected forms of labor), which generated certain rigidities for competitive firms (P. 57). The answer was a different iteration of contract linked to private property rather than to public law, or government regulation (Pp. 60-61).
Occupational Communities
Despite the return of various forms of subordination via contract anchored in private property, Dukes and Streeck point to so-called “occupational communities”, or group of workers who perceive themselves as working in a similar line of work, who develop a collective identity, and share some values, norms, and expectations for work and life (P. 111).
Employers might opportunistically tap into the values of occupational communities’ to further exploit workers (P. 117). For example, Linda Burnham and Nik Theodore have shown that domestic workers might overwork themselves because they feel deeply bound, professionally and morally, to a client. But occupational communities can also mobilize those same aspirations to seek collective solutions to overwork, demand better conditions, pay, or training to improve their work (Pp. 112-113). Dukes and Streeck thus envision emancipatory possibilities through occupational communities.
What Democracy at Work Means for the U.S. Today
There is lots to learn from this book. But here I want to point at its lessons in light of populism, such as Donald Trump’s.
The demise of industrial democracy might have brought a new era for contract and markets. In recent years, however, contract and markets have also lost significant luster with the public. As the epitaph above shows, in an institutional context weakened by neoliberals, it is easy for populists such as Donald Trump to tell working people who have experienced deteriorating economic conditions to eschew economic elites, markets, and to give up on their own collective efforts.
Populist politicians take on the mantle of “Great Leader” asserting they will take care of workers’ problems through their direct relationship with “the people,” promoting a social contract devoid of mediating institutions. But, as we learn from Dukes and Streeck, status will fill the gaps of whatever social bargain the people conclude with populist leaders, especially in the absence of mediating institutions.
A mass of workers without institutions will find themselves subordinated to that Great Leader – he is the leader after all – and the institutions that the Great Leader creates, public or private. The loss of unions and industrial democracy should thus be understood not only as a win for neoliberalism, but also for today’s populists, autocrats, and authoritarians.
Dukes and Streeck make it clear that they harbor no illusions of what it will take to rebuild industrial democracy – “institutional reconstruction on a major scale and over an extended period of time, not just of work regimes but also of capitalism as a socio-economic order” (P. 2).
If they are right, the task is enormous, but there is hope. After all, the occupational community of U.S. union workers refused to relinquish their agency to the Great Leader, supported the United Auto Workers union, and won a historic strike last year. A political project to expand that occupational community seems to be the task at hand. Law needs to be part of that political project. It should lift workers to a higher status, represent their values and aspirations, and reconstitute institutions to heal our beleaguered democracy.
