Professor Alan Bogg of Oxford has a new paper exploring freedom of association that draws heavily on recent developments in Canada and that engages with the scholarship of University of Toronto law professor Brian Langille. Alan has been kind enough to teach a great course on British Labour Law in the part-time Osgoode LLM program in labour and employment law that I direct and closely follows Canadian labour law developments.
The new paper is published in a journal that few of you are likely to stumble upon (American Journal of Jurisprudence), so I thought I would post the article here. The article is entitled “Subsidiarity or Freedom of Association? A Perspective from Labor Law”. Here is the abstract:
The subsidiarity principle is a principle of constraint. In its guise as a principle of
Professor Alan Bogg of Oxford University
constraint, it sets itself against the state “taking over” the activities and functions of subsidiary associations and their members. The subsidiarity principle is also a perfectionist principle. In its guise as a perfectionist principle, it requires the state to provide positive support to the capacities of subsidiary associations and their members to develop and pursue activities of value. This is crucial in ensuring that citizens engage in self-constituting activities, realizing their human capacities as fully as possible This article argues that recent philosophical accounts have over-emphasized subsidiarity’s role as a principle of constraint, and have under-estimated its role as a perfectionist principle. Properly understood, the subsidiarity principle is an important structuring principle in developing a coherent account of freedom of association. This account of subsidiarity, and its relationship to freedom of association, is developed using specific examples from the context of labor law and labor unions.
Like much of Alan’s work, it draws on a rich philosophy literature to explore central debates in contemporary labour law. At the core of this paper is the concept of “subsidiarity”, and in particular the work of legal philosopher John Finnis. Subsidiarity is an approach usually associated with government restraint in terms of regulation of associational activity. However, Bogg argues that subsidiarity also provides guidance on when and why states must forgo simple neutrality (allowing a basic right to associate with little or nothing more to instantiate that right) and intervene in to ensure people can act collectively in ways that advance human dignity.
Bogg’s exploration tackles many fundamental questions in labour law, including the extent to which the state should intervene to protect a right to organize and join unions and a right to engage in collective bargaining and to strike. He tackles the question of why some collective acts (collective bargaining, strikes) are deserving of robust protection while others (reading books together or counting grass with friends) are not. And he uses common examples (e.g. first contract arbitration) from labour law and Canadian Supreme Court of Canada decisions on freedom of association to develop his arguments.
For Canadians, an interesting element of the paper is his extended engagement with Professor Langille’s claim that freedom of association can and should be understand as being based in individual rights. Langille has argued that focusing on “inherently collective acts”, as the Supreme Court of Canada has done occasionally, is unhelpful to understanding the nature of FOA, and that individual rights can carry the weight. For example, there is a right to strike because there is an individual right to withdraw one’s labour until an acceptable deal is reached with one’s employer. If I have an individual right to withdraw my labour, then I must have a right to withdraw my labour together with others.
Bogg questions this approach to understanding FOA, and argue for a purposive understanding of FOA that draws on subsidiarity and puts greater emphasis on group activities. He writes:
the fundamental point of freedom of association is to empower groups, and in so doing to enable individuals to help themselves and each other through concerted action. It is in this sense, then, that freedom of association is properly described as “purposive,” in the light of its special contribution to facilitating self-constituting action through participation in groups in civil society. The normative value of voluntary collective bargaining through freely formed associations of workers is the embodiment of self-help through cooperative action.
Alan’s newest paper is a challenging read, but well worth it for those readers interested in the nature and development of freedom of association, particularly as it pertains to labour law.