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Private Government By Corporations

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Posts in this series. This post is updated from time to time with additional resources.

The second chapter of Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (And Why We Don’t Talk About It) begins with a striking image: the US corporation as communist dictatorship. The employer has the absolute rights to do as it sees fit with its employees with few restrictions. She singles out a few of the more absurd rules: an employer can fire a worker because of the way the worker votes, or opinions the worker expresses about politics, or, as we learn in one case, because the son of a friend of the employer raped the employee’s daughter.

We usually think of government as meaning only the state. Anderson says we need a broader definition of government: the legitimate exercise of power by one person over another. Thus, masters govern their servants and slaves, parents govern their children, the Church governs the faithful, the bridge club leaders have the right to exclude people from their games, and so on. We see something akin to this in Foucault’s discussion of governmentality.

Then Anderson draws the distinction between private and public government. A government is public if it is required to consider the interests of the governed, if governed people have the right to participate in the management of the government, and to review its actions and hold it accountable. It is private if the interests of the governed are irrelevant, if they have no power to influence or question the actions of the government.

Anderson defines the state following Max Weber in his essay Politics As A Vocation.

Weber’s definition is the following: “The state is seen as the sole grantor of the ‘right’ to physical force. Therefore, ‘politics’ in our case would mean the pursuit for a portion of power or for influencing the division of power whether it is between states, or between groups of people which the state encompasses.”

The state as the sole grantor of the right of the use of violence has a specific meaning. Only the state can empower a private group to exercise government over others. The master has the right to control the slave because the government says so. Parents’ rights to control children have the sanction of the state. Under the law of Coverture, husbands had the right to control the bodies and wealth of their wives. Anderson points to John Adams’ response to Abigail Adams request to “remember the ladies” in the construction of a new government.

Depend upon it, we know better than to repeal our masculine systems.

In each of these cases the state can regulate the control exercised by the grantee. For example, a state could determine that a parent hitting a child is abusive, and could punish the parent and take the child into protective custody. Or the state could simply withdraw its grant of control, as it did with slavery or the law of coverture.

The case of the corporation as employer is similar. The state could withdraw the right of the corporation to exercise any aspect of government it chose. It could, for example, make it illegal to fire a person who refused to attend a political rally for the candidate of the CEO’s choice; or more generally for any reason related to the employee’s politics. It can limit the right of an employer to fire an employee for illness.

In general, capitalists object to any infringement on their right to dominate the lives of their employee. The usual argument has to do with what capitalists call “freedom”, defined as the right to have the state leave them alone. Anderson could argue as she does in other cases, that this negative freedom for the capitalist inflicts massive losses of negative freedom on employees, who cannot support candidates of their choice, or stay away from undesirable political rallies, or organize into unions, or get sick. Thus, unrestrained control for capitalists requires substantial justification.

Instead, she points out that besides negative freedom, there are two other equally or more valuable kinds of freedom*: positive freedom, meaning having a wide choice of opportunities, and freedom from domination. It is frequently the case that restraints on negative freedom for a few produces much larger overall increases in these kinds of freedom.

Comments

1. The idea of private government mirrors the ideas of Bruce Scott and of Ellen Meiksins Wood on the role of corporations in the US. See this post.

2. Anderson seems to think a different outcome was possible, one in which the employer had control over the lives of employees only as to their jobs. I’m less sure of that. It seems to me that changes in the method of production do not impact the general governmental structures of a society. As Anderson points out, in England in the middle ages production was organized around feudal estates and guilds. Each was based on the idea that of top-down control. The monarch owned the real property and granted use rights to the aristocracy, which controlled agricultural production, and took much of the product for itself. Guilds acted as controllers of cloth and other artisanal goods, and decided who could participate and on what terms. In each case there was top-down control by agents empowered by the Throne to impose sanctions and discipline.

Private life followed the pattern. Husbands controlled wives, children, and servants. Churches exercised control over the religious lives of their parishioners, extracting tithes and demanding obedience.

As the methods of production began to change, these governmental structures remained in place. Apprentices were tacked onto that structure in the position of servants. When women started doing piecework for textile mills, they remained dependents. Fathers or husbands took their wages and used them as they saw fit. When children were put to work in mines and mills, they remained dependents of their fathers, who took their wages and used them as they saw fit.

The only change was the way people worked, not their social relationships. Those social relationships arose from ancient times. Anderson discusses the social theory that everyone must be controlled from above. This pattern starts with the Almighty, and continues through the monarch, down through aristos to common people to serfs and slaves, in what was known as the Great Chain of Being.

Social changes were in the long run influenced by the changes in the means and methods of production, as we can see from Anderson’s and Ann Hughes’ (Chapter 3) discussion of the Levelers and other dissidents in the mid-1600s. But those social relationships have a powerful hold on the minds of people. Like most bad ideas, the idea of the necessity of control from above is nearly impossible to eradicate. We see it today in different parts of society; where Biblical injunctions about wives and servants** still hold sway. John Adams was right. Men of all ranks will not want to give up their rights under their masculine systems.
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*I discuss these freedoms at length earlier in this series. See the linked index.
** Some translations have “slaves”.

Egalitarianism and Markets

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Posts in this series. This post is updated from time to time with additional resources.

The text for the next part of this series is Elizabeth Anderson’s Private Government: How Employers Rule Our Lives (And Why We Don’t Talk About It). The book consists of two lectures by Anderson, four responses by others, and Anderson’s replies.

Anderson considers herself to be in the philosophical tradition of Pragmatism, the subject of several posts in this series. Pragmatism is a method with which she studies egalitarianism, which is the main theme of this book. In the first posts in this series we looked closely at her ideas of freedom and equality, which are the substrate for her justifications for egalitarianism. As a pragmatist, she does not try to create an overarching theory, as we might see in other philosophic traditions. Her analysis begins with her values, as we all should. This book examines how those values are expressed in our contemporary economy, and how they might be better implemented.

In the first lecture, Anderson gives us a short history of egalitarianism in action, beginning in the 1600s. Society was almost completely hierarchical, organized under the Church of England and the Monarchy/Aristocracy structure. Most people owed obedience to both, with no say in the matter, and were forced to support both through tithes and taxes. Gradually a number of people became “masterless men”, free of obligations to one or both. Many were criminals or vagabonds, others were impoverished, but many were artisans, small shopkeepers or yeoman farmers*. These found themselves free of domination and began to see themselves as a group, not quite a class, but separate. They formed the core of Cromwell’s army in the English Civil War, 1646-51. One faction was called the Levellers. The Levellers had a number of progressive ideas, including an elected monarchy, and abolishing the House of Lords. Some even argued for the rights of women! The movement was short-lived, ending in 1651, when the rich and powerful killed them and imprisoned their surviving leaders with impunity.

The ideas of the Levellers were egalitarian in the sense Anderson uses the term: they wanted to get rid of social hierarchies of birth, church, aristocracy, land-holdings, and perhaps even the patriarchy, and they wanted institutions that did not dominate or humiliate them because of their own birth status or employment.

Anderson says that one of their concerns was opening up monopolies granted by the Crown to aristocratic cronies, and allowing everyone to enter into any trade or business, free from interference by the Crown, the rich, and their courts. This was an attack on both royal prerogatives and the remains of the Guild system. It amounted to an attack of the prerogatives of the Church of England, which had its own courts, levied tithes, and had certain powers to discipline people.

Anderson draws from this demand the idea that people who own and manage their own capital and their own skills can meet as equals in the marketplace. It gives meaning to Adam Smith’s theory that a nation of artisans, yeoman farmers, and small retailers would be more productive and innovative than the careless and inattentive aristocracy of rich landlords and monopolists who dominated the economy. The increase in production would benefit every member of society.

In the US, Thomas Paine held similar views. There was plenty of land, so anyone could take up farming. Apprentices would become journeymen and accumulate sufficient capital to open their own businesses and eventually take on apprentices. There were no aristocracies or powerful churches in the US, so the biggest danger to this ideal was government. Anderson sees Paine as libertarian; she says that Paine’s views match those of the non-Trump conservatives.

The ideal of the US as a nation of small farms and businesses operated by self-reliant families was taken up by the Republican Party, and was embraced by Abraham Lincoln. Anderson quotes part of Lincoln’s 1859 speech to the Wisconsin Agricultural Society in which he lays out this idea. Lincoln is responding to a speech by a South Carolina Senator, James Hammond. Hammond, a wealthy plantation owner, argued that society can only advance if there are classes of people whose only role is performing menial labor, just as a house cannot stand without a mudsill, a foundation. Lincoln explains that labor is the “source by which human wants are mainly supplied”. He says that one group argues that capital is primary, that productive work is not done unless people with capital use workers to do it, and the only question is whether they hire workers or buy slaves. Others, says Lincoln

… hold that labor is prior to, and independent of, capital; that, in fact, capital is the fruit of labor, and could never have existed if labor had not first existed — that labor can exist without capital, but that capital could never have existed without labor. Hence they hold that labor is the superior — greatly the superior — of capital.
…

In [the] Free States, a large majority are neither hirers or hired. Men, with their families — wives, sons and daughters — work for themselves, on their farms, in their houses and in their shops, taking the whole product to themselves, and asking no favors of capital on the one hand, nor of hirelings or slaves on the other. … Again, as has already been said, the opponents of the “mud-sill” theory insist that there is not, of necessity, any such thing as the free hired laborer being fixed to that condition for life. There is demonstration for saying this. Many independent men, in this assembly, doubtless a few years ago were hired laborers. And their case is almost if not quite the general rule.

The prudent, penniless beginner in the world, labors for wages awhile, saves a surplus with which to buy tools or land, for himself; then labors on his own account another while, and at length hires another new beginner to help him. This, say its advocates, is free labor — the just and generous, and prosperous system, which opens the way for all — gives hope to all, and energy, and progress, and improvement of condition to all. If any continue through life in the condition of the hired laborer, it is not the fault of the system, but because of either a dependent nature which prefers it, or improvidence, folly, or singular misfortune.*

Lincoln describes two competing theories of the role of capital in society: the mud-sill theory, and the Free Labor system. Anderson asks why the egalitarian vision of Free Labor died out in practice, although not in the imagination of the defenders of capital and their PR flacks. I ask why the mudsill ideology became dominant.

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*In the first response, the historian Ann Hughes provides needed context on this point, as well as a more nuanced view of the Levellers and other dissidents of their time.

*The next paragraph is pure Lincoln, the reason we love him:

By the “mud-sill” theory it is assumed that labor and education are incompatible; and any practical combination of them impossible. According to that theory, a blind horse upon a tread-mill, is a perfect illustration of what a laborer should be — all the better for being blind, that he could not tread out of place, or kick understandingly. According to that theory, the education of laborers, is not only useless, but pernicious, and dangerous. In fact, it is, in some sort, deemed a misfortune that laborers should have heads at all. Those same heads are regarded as explosive materials, only to be safely kept in damp places, as far as possible from that peculiar sort of fire which ignites them. A Yankee who could invent strong handed man without a head would receive the everlasting gratitude of the “mud-sill” advocates.

Freedom And Equality: In The Workplace

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Posts in this series. This post is updated from time to time with additional resources.

Elizabeth Anderson’s book Private Government: How Employers Rule Our Lives (and Why We Don’t Talk about It) is in part an application of her ideas about freedom and equality. Here’s a review in the New Yorker. Anderson takes a broad view of government. From the review:

If you exercise “public government,” you allow the people you rule to have a say in how they are governed; if you wield “private government,” the rules are not up for debate. In public government, decision-making is everybody’s business—the government “belongs” to everyone, like a public park. In private government, it belongs to the governor, as his or her private possession.

We saw this broad view with Bruce Scott here, and with Michel Foucault here. In Anderson’s terminology, the workplace is a private government, one in which workers have no say, and are subject to coercion, humiliation and domination at the whim of their employers. There are examples in the review, but you can find all you want with a bit of googling.

A contrasting view is set out in a book by John Tomasi in his book Free Market Fairness. Tomasi is a professor of political philosophy at Brown University. Anderson and Tomasi participated in a symposium on Tomasi’s book; here’s the introduction. Anderson wrote this, and Tomasi replied with this. Here’s Tomasi’s description of his book:

In Free Market Fairness, I argue that justice requires that our social institutions show respect for citizens as responsible authors of their own lives. Choosing whether to join a democratic workplace (that may offer lower pay) or a non-democratic workplace (where pay may be higher) seems to me a choice that we should seek to empower individual citizens to make for themselves. Democratic workplace requirements would deny workers a choice that many workers might reasonably make: namely, to choose a job that pays a higher wage rather one that offers the experience of democratic control. And many citizens might reasonably make that choice, not out of greed or moral stupidity, but as an expression of their own values and in pursuit of a life plan that is precious to them.

The first thing to note is that Tomasi is trying to argue that Lochner v. New York, 198 U.S. 45 (1905) should be reinstated. Lochner concerned a New York law that prohibited bakers from working more than 10 hours a day amd 60 hours a week. The state of New York argued that this was a proper use of the police power, the general power of a state to protect the health and safety of bakery workers exposed to flour dust and physical exhaustion.

In a 5-4 ruling, SCOTUS decided that this statute interfered with the freedom of contract of the worker protected by the Fifth and Fourteenth Amendments. The case made it difficult for governments at every level to protect the health and safety of workers. It stood for 30 years until the Court decided a series of cases rejecting the idea that freedom of contract was a constitutional right, implicitly but not directly overruling Lochner. Tomasi’s view would require reinstating Lochner or a Constitutional Amendment.

The two papers cited above take a different approach to Tomasi’s argument. These are dry arguments addressing complex issues of human life: the social relations between capitalists and workers in the workplace. Tomasi wants to leave these mostly unregulated, the lstandard libertarian approach. Anderson says that unregulated relationships will lead to relations of domination and oppression.

In the real world, Anderson has the better argument. We’ve all seen skin-crawling stories of workplace oppression practiced by US companies. We know that governments have been moving in the libertarian direction for over 50 years. That sounds like an empirical test showing that Anderson is right and Tomasi is wrong. Tomasi can’t refute that factual argument. Here’s his position:

Abstracting from the complicated facts of particular societies, my hope is to identify the institutional forms that might best express the commitment of citizens to live together as free and equal self-governing agents. My main thesis, of course, is that market democratic regime-types—democratic laissez-faire and democratic limited government—express that moral commitment more completely and more attractively than do social democratic ones—liberal socialism and property-owning democracy. So my argument is an exercise of normative identification that is conducted at the level of ideal theory.

He admits that he can imagine a society in which the workplace liberties that make up his preferred world, his rules of free market fairness, could “…leave workers vulnerable to the coercive abuses of the sort that worry Anderson.” But instead of dealing with the real world test, he constructs an imaginary world, with an imaginary problem. He eventually admits that the possibility that the “lofty ideals of free market fairness cannot be achieved”.

Resolving the disagreement

Tomasi’s argument proceeds at a very high level of abstraction. He gives us a clue about his personal predilections when he tells us:

My main thesis, of course, is that market democratic regime-types—democratic laissez-faire and democratic limited government—express that moral commitment more completely and more attractively than do social democratic ones….

I read this to say he doesn’t think people should be pushed around by government, dominated, as Anderson would say. Anderson adds this to our understanding of his position:

Tomasi argues that rights to economic liberty should be constitutionalized, with economic regulations subject to a high level of judicial scrutiny. Considerations of social justice may sometimes override economic freedom—but only if judges approve.

If that’s right, it seems to mean that Tomasi wouldn’t mind being pushed around by judges. He accepts one form of government, but not broad legislative or administrative regulation unless that is checked by some form of unaccountable official. I assume he thinks judges would agree with his predilections.

I understand Anderson’s view in favor of broad social democracy. Her starting point, the social contract, has deep roots in US politics. She is willing to trust in the judgment of her fellow citizens to a much greater extentthan Tomasi, and is unwilling to submit much to the decision of unaccountable officials, whether in private or public government.

One way to evaluate the normative superiority of one or the other view might be to ask each to describe the kind of person who would thrive in their respective regimes. I’ve read enough Anderson to suggest she would answer that human nature resists domination and humiliation. People want to have a say in decisions about themselves and their projects, including their work.

I can’t answer for Tomasi. I have no idea if there are people who would accept domination, humiliation, or unreasonably dangerous working conditions for higher wages. I also don’t understand why that has to be a choice in a democracy. I think it’s horrifying to allow employers to pay more so they can dominate or humiliate their workers, or subject them to unreasonably dangerous conditions. Maybe I just don’t understand libertarians, but I’m not willing to spend any more time thinking about them.