What's Wrong With the "Right to Work": A Marxist Critique

J. Richard Marra I Labor Issues I Analysis I May 10th, 2017

At this writing, 28 US states have instituted "Right to Work" laws (RTWLs). These laws prevent labor unions from excluding non-union workers from receiving improved wages and benefits gained through union negotiations with employers, as well as worker-empowering services such as grievance assistance. These laws also bar unions from requiring non-union employees to pay a fee to unions to offset the costs of union work and services. This legislation extends established Federal law that protects a worker's right not to join a union, and the Taft-Hartley Act, which requires that unions exclusively represent all employees regardless of union membership status.

Neo-liberals dislike unions and wish to diminish their ability to organize and advantageously negotiate contracts with employers. They disparage union demands that all employees who the receive benefits of union work pay their fair share. Neo-liberals cast these complaints in legal language rights, which resonates among Americans. In 2014, GALLUP found that 71% of those polled approve of RTWLs because they agree with proponents that no American "should be required to join any private organization, like a labor union, against his will." RTWL advocates such as The National Right to Work Legal Defense Foundation remind workers that the Foundation defends the workers' right to personally bargain with employers, and celebrates the right of every American to employment without the government compelling them to join a union.

For Neo-liberals, workers' labor power is their exclusive private property and the law should insure its unrestricted sale to employers. In contrast, Marxists argue that appeals to a right to sell labor power rest upon an established a capitalist conception of private property, which is a structural basis of the capitalist wage system. Marx argues that capitalist law invests workers with an exclusive ownership and control over their labor power. However, upon exchanging that labor power (as a commodity) for money (wages), it becomes the private property of the employer. It is upon these dimensions of ownership rights that Marx's bases his class explanation of the exploitive and alienating capitalist economic system.

These rights obtain meaning and scope within a capitalist legal superstructure, described by Gerald Allen Cohen as "a set of non-economic institutions, notably the legal system and the state." (p. 216) This legal order defines rights within the capitalist economic structure (the forces and social relations of production), and institutionalizes private property rights and production relations in legal terms. The legal superstructure enshrines rights in way that insure the best "fit" between capitalist social relations and the prevailing forces of production to maximize the effectiveness of the prevailing productive forces.

It is indispensible to capital that workers freely sell their labor power. The superstructure sanctions this right because capitalists wish to legally expedite a "free circulation of labor," which facilitates the centralization of sufficient labor power to maximally exploit the prevailing productive forces. Concerning the growing scale of agriculture and, with it, the end of "settlement laws" in Medieval Europe, Cohen explains:

The productive forces demanded "large scale production on modern lines" with larger aggregation of labor, and therefore new material relations of production. These in turn required "free circulation of labor," the right to move, which was then denied. Since the law forbade movement, it was broken, ignored, and finally scrapped, new social production relations forming on its ruins. (p. 167)

The legal superstructure determines the power relations of private property. It enables the good working order of the prevailing economic structure through legal means by establishing rights over the ownership and sale of labor power. RTWLs institutionalize a power asymmetry between employers and unions; financially encumbering unions and diminishing their ability to organize effectively and negotiate for improved wages and benefits from a position of financial strength.

A central problem for Marxists who wish to explain RTWLs with reference to class dynamics is to recognize and avoid the biased preconceptions of capitalist rights talk. As Cohen suggests, "The problem…is to (i) formulate a non-legal interpretation of the legal terms in Marx's characterization of production relations, in such a way that (ii) we can coherently represent property relations as distinct from, and explained by, production relations ." (p. 219) [Author's italics]

To do this, Cohen develops a "rights free" semantic that renders rights as "powers." Powers are just the ability of persons to do A, regardless of whether A is normatively a legal or moral act. A revealing way to explore how laws reflect capitalist power relations is to consider Cohen's three "dimensions of subordinate status." Cohen defines the working class as comprising people who (p. 69):

1) Produce for others [superiors] who do not produce for them

2) Within the production process,…are commonly subjected to the authority of the [superiors]

3) In so far as their livelihoods depend on their relations to their superiors,…tend to be poorer than [their superiors]

To transform these dimensions in to talk of power, we simply replace the word "right" with a matching "power." Then, in order to divorce rights talk from powers, we also require that the:

Possession of powers does not entail possession of the rights they match [nor vice versa]…Only the possession of a legitimate power entails the possession of the right it matches, and only the possession of an effective right entails the possession of its matching power. (p. 219)

Considered in this way, the workers' right to sell their labor becomes the power to produce for their superiors, acquiesce to the authority of employers and managers, and generally be poorer than their superiors. Cohen makes clear the relevance of this perspective to class struggle:

No superior has rights over his [the worker's] labor power. His subordination ensues because, lacking means of production, he can ensure his survival only by contracting with a capitalist whose bargaining position enables him to impose terms which effect the worker's subordination. Through unionization proletarians improve their bargaining position and their consequent lot in all three dimensions of subordination. When the reduction of subordination is substantial, we may also speak of a reduction of proletarian status. (p. 70)

For unions to break free of the dimensions of capitalist subordination, organizing and worker solidarity are crucial. Cohen argues that workers can establish "a self-aware" group consciousness whose political dispositions reflect the Marxist critique (p. 77), one that views union membership outside of the Neo-liberal narrative of rights that dominates the American culture . This consciousness would realize that the right to private property remains a Neo-liberal legal construct whose function is to institutionalize beneficial social relations for the capitalist.

The Economic Policy Institute reported on the benefits non-RTW states offer to workers and their unions.

No matter how you slice the data, wages in RTW states are lower, on average, than wages in non-RTW states. As shown in great detail in Gould and Shierholz (2011), these results do not just apply to union members, but to all employees in a state. Where unions are strong, compensation increases even for workers not covered by any union contract, as nonunion employers face competitive pressure to match union standards. Likewise, when unions are weakened by RTW laws, all of a state's workers feel the impact

If socialism intends to replace the economic structure of capitalism, these data suggest that opposing RTWLs leads to significant economic and political gains for workers. Socialist activists and union organizers struggling against the enactment of RTWLs can bolster their advocacy by illuminating that Neo-liberal semantic of rights that conceals the subordinating power relations of capitalism.

J. Richard Marra lives in Connecticut. He received his Doctoral degree from Cornell University in 1977, majoring in Musical Composition and the History of Music Theory. While on the Faculty of the Peabody Conservatory of Music in Baltimore, he completed graduate work at Johns Hopkins University, majoring in the Philosophy of Science. He is a member of the Socialist Party USA, the Southern Poverty Law Center and the Philosophy of Science Association. He is also a contributing writer for the Secular Buddhist Association. He is a member of the Socialist Party - USA, and has served as the Convener of the Editorial Board and Managing Editor of The Socialist. He is a 2014 recipient of the SPUSA's Eugene V. Debs Award.