Tag Archives: legal theory

On Right to Work, Part 1: Governor Walker’s Hohfeldian Moment of Truthiness

This post originally appeared at the Legislation Law Prof Blog

Yesterday, Wisconsin governor and all-but-official presidential candidate Scott Walker signed a so-called “right to work” bill into law. It was published today. Wisconsin is now the 25th state with such a law. But interestingly, Walker was careful not to describe what he signed as a “right to work” law. From his quotes at the signing event to the sign taped to his desk to his press release, he instead called it a “Freedom to Work” law.


(Mike De Sisti/Milwaukee Journal-Sentinel, via Associated Press)

This tweak was a bit odd, since Wisconsin’s Legislative Reference Bureau had summarized S.B. 44 by writing “This bill creates a state right to work law.” The term “right to work” also appeared in the text of the bill itself, and now in 2015 Wisconsin Act 1.

Why the difference? Why “freedom” rather than “right”?

It could be that Walker and his aides were simply looking for a better frame. Though it’s not clear what was wrong with “right to work” in the first place. “Right to work,” which no less a wonk than Ezra Klein has called “a triumph of framing,” has put opponents on the defensive, fumbling for alternatives such as “right to work for less,” or “so-called ‘right to work’” (see above), or even “right to freeload.”

Perhaps instead — who can really say? — the change was because Walker doesn’t want to foster the impression that his law actually creates a right to work. It doesn’t, of course, not any more than it creates a duty to provide employment. (More tomorrow, in Part 2, on ideas of what that — an actual right to work — might look like.)

If this is the real reason behind Walker’s reframing — and admittedly, it’s probably not — then he might be commended for trying to get things at least a little closer to the truth. We might think of “freedom to work” as an almost-truth, a little bit of Walkerian truthiness.

Why does it get closer to the truth? Here we must summon the ghost of Wesley Hohfeld, who just over a century ago wrote in the Yale Law Journal that “the term ‘rights’ tends to be used indiscriminately to cover what in a given case may be a privilege, a power, or an immunity, rather than a right in the strictest sense; and this looseness of usage is occasionally recognized by the authorities.”

Hohfeld famously (at least among legal scholars) took it upon himself to clear things up, by laying out a scheme of fundamental jural relations:

Screen Shot 2015-03-10 at 11.28.29 AM

In Hohfeld’s terminology, jural correlatives are legal relations in which one thing corresponds to another. For example, if X has a right against Y to receive employment, the correlative is that Y is under a duty toward X to provide employment. Obviously, this sort of right-duty relation is not what is at stake in “right to work” laws.

Instead, Walker’s reframing moves us over one column in Hohfeld’s table of jural correlatives. Hohfeld noted that “a privlege is the opposite of a duty, and the correlative of a ‘no-right.’” Here, if we think of Walker’s “freedom” as equivalent to Hohfeld’s “privilege” then at least Walker has identified, probably unknowingly, the correct jural relation in play. As Hohfeld put it, “A ‘liberty’ considered as a legal relation (or ‘right’ in the loose and generic sense of that term) must mean, if it have any definite content at all, precisely the same thing as privilege.”

So the law Walker signed gives workers a legal privilege — not to work per se (they already had that privilege), but to work without having to join a union or pay dues. This is the jural opposite of the duty that collective bargaining agreements could have created for workers as recently as last week. Then, a collective bargaining agreement could have created a duty on the part of a worker to pay the equivalent of dues. Not so anymore. After today, agreements renewed, modified, or extended may not create such a duty.

The correlative to the new legal privilege created by Walker’s “freedom to work” law is a no-right on the part of any person to compel a worker to join a union or pay the equivalent of dues as a condition of employment. What’s more, the law criminalizes the violation of this no-right. This is to say that any bosses (union or actual) who assert a right to compel union dues or membership not only don’t have that right, but have also committed a Class A misdemeanor. This criminal liability provision, of all things, is what falls under the title “Right to Work” in Section 12 of the Act.

In the end, then, putting “so-called” in front of “Right to Work” is conceptually correct. As Walker seems to have acknowledged, the law doesn’t create a right to work — it creates a freedom, or legal privilege, to work without having to pay dues or join a union. Put differently, it creates a legal privilege to free-ride on the agreements that unions have negotiated with employers.

Tomorrow, Part 2 will take a look at some visions people have had of a real right to work — and how their proposals have played out. And, later in the week, Part 3 will survey legislative proposals for the labor movement, now that workers in half the states have a legal privilege to free-ride.

Jefferson on property, on his birthday

Today is Thomas Jefferson’s birthday; he would be turning 271 years old.  It feels like a good day to mention how one of Jefferson’s writings on property has influenced my thinking about urban farming.  In the fall of 1785, when he was 42, Jefferson was living in France.  In late October, he traveled to Fontainbleau, a village outside of Paris where the king had a palace, and went every year to go hunting.

Pierre-Denis Martin, Vue du Château de Fontainbleau (1718-1723). Click for source and higher resolution image.

Pierre-Denis Martin, Vue du Château de Fontainbleau (1718-1723). Click for source and higher resolution image.

This was Jefferson’s first visit to Fontainbleau, so he decided to take a walk to the top a nearby hill and get a view of the countryside.  In a letter to James Madison, he wrote that

As soon as I had got clear of the town I fell in with a poor woman walking at the same rate with myself and going the same course. Wishing to know the condition of the labouring poor I entered into conversation with her, which I began by enquiries for the path which would lead me into the mountain: and thence proceeded to enquiries into her vocation, condition and circumstance. She told me she was a day labourer, at 8. sous or 4 d. sterling the day; that she had two children to maintain, and to pay a rent of 30 livres for her house (which would consume the hire of 75 days), that often she could get no emploiment, and of course was without bread. As we had walked together near a mile and she had so far served me as a guide, I gave her, on parting 24 sous. She burst into tears of a gratitude which I could perceive was unfeigned, because she was unable to utter a word. She had probably never before received so great an aid.

Jefferson wrote that “This little attendrissement, with the solitude of my walk led me into a train of reflections on that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country and is to be observed all over Europe.”

The property around Fontainbleau, he observed, was concentrated into the hands of just a few owners.  These landowners employed some of the villagers, but these were ultimately fewer than “the most numerous of all the classes, that is, the poor who cannot find work.” Jefferson asked himself, “what could be the reason that so many should be permitted to beg who are willing to work, in a country where there is a very considerable proportion of uncultivated lands?”

Most obvious, of course, was that much of the land was reserved for hunting.  But Jefferson reasoned that it was the enormous wealth of the landowners that allowed them to ignore the additional revenue they might generate by allowing people to cultivate their land.  An equal division of property, Jefferson observed, was “impracticable.” “But the consequences of this enormous inequality producing so much misery to the bulk of mankind,” he argued, mean that “legislators cannot invent too many devices for subdividing property.”

Jefferson went on to consider some of these devices. All children could be allowed to inherit property, rather than just eldest sons.  Or property could be taxed progressively, above a certain threshold.

But then comes the most interesting part.  Jefferson concluded that:

Whenever there is in any country, uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labour and live on. If, for the encouragement of industry we allow it to be appropriated, we must take care that other employment be furnished to those excluded from the appropriation. If we do not the fundamental right to labour the earth returns to the unemployed. It is too soon yet in our country to say that every man who cannot find employment but who can find uncultivated land, shall be at liberty to cultivate it, paying a moderate rent. But it is not too soon to provide by every possible means that as few as possible shall be without a little portion of land. The small landholders are the most precious part of a state.

Jefferson’s reasoning seems to flow straight out of Locke’s thinking on the distributive consequences of converting common land into private property — what has come to be known as the “Lockean proviso.” If we understand land to be a common resource, then the conversion of some of that land into private property, Jefferson argues, triggers a responsibility to ensure that people who don’t have access to property have some way of earning a living. During periods of economic crisis, “the fundamental right to labour the earth” returns to the unemployed. Jefferson even suggested how that might be coordinated: unemployed people who can’t find work, but who can find unused land, should be able to cultivate it for a moderate rent.

Writing in 1785, Jefferson didn’t think the economic situation in the United States merited such a response. At the time, uncultivated land seemed to be abundant — although native Americans might have disagreed with the assumption that it was in fact unused — and a policy of ensuring widespread smallholding seemed sufficient to Jefferson.


How are Jeffersons’ ramblings relevant to urban farming in the U.S.?  Admittedly, we have no king, and land in and around American cities is not reserved for the royal hunt.  But there have been periods in U.S. history — perhaps including the current period — when people have tried to figure out ways of granting unemployed people access to unused land, so that they might grow some food.  This, despite the fact that Jefferson’s “fundamental right to labour the earth” never made it into the Constitution or Bill of Rights.  How might the lingering notion of such a right motivate the ways that people have thought about and organized around urban land use?  And what would Jefferson think if he were to see certain parts of Detroit, Cleveland, Chicago, or other post-industrial cities in the United States?  Would he feel discomforted by the sight of “uncultivated lands and unemployed poor”?  Would he approve of efforts to put land into use as farms and gardens?