JPPL Final Essay

Milica Nikolic (400388008)

McMaster University
 The right to strike is a fundamental structure in bridging the gap between employers and

employees. The right to strike is an action that is being used more and more in our society today

especially due to inflation and the cost of everyday products rising drastically while many wages

have not been raised at all. An example of the right-to-strike action that many McMaster students

have witnessed firsthand is the CUPE 3096 TA strike. The strike was a result of protests against

price increases on tuition for graduate students and wage increases for both undergraduate and

graduate teaching assistants all due to rising costs of living. The right to strike has many benefits,

especially during recessions and difficult times which is why many have defended the right to

strike such as Bogg & Estlund. In this Essay, I will analyze Bogg & Estlund’s defense of the

right to strike, which is the idea that the right to strike rests on three principles that work

together. I will then explain why I agree with their defense of the right to strike by giving

examples from the readings and lectures. Next, I will articulate two of the best objections from

Bigg & Estlund’s defense and explain how these objections can be overcome.

To begin with, the main structure of Bogg & Estlund’s defense of the right to strike rests

on three principles that work together to create the best ‘derivative right’ argument (Bogg &

Estlund, 230). The right to leave one’s employment, to associate with others, and to express what

one thinks are the three principles that work together to defend the right to strike (Bogg &

Estlund, 230). These three main principles are the core of Bogg & Estlund’s defense on the right

to strike, all three must work together for a right to strike rather than having any one of them in

isolation. The first principle of Bogg & Estlund’s defense is the right to leave one’s employment,

which is vital to neutralizing the domination in the employment relation. Bogg & Estlund use

Robert Taylor’s recent sustained account of ‘exit-orientated’ republicanism in ‘Exit left’ which

gained public support for the idea that an exit is a credible option for even the most vulnerable
workers (Bogg& Estlund, 234). The right to ‘exit’ principle is then divided into three more

specific rights such as the right to change employers, the right to self-employment, and the right

to exit the labour market (Bogg & Estlund, 233). Bogg & Estlund also agree with Taylor that a

realistic ability to exit employment is indispensable in limiting employers’ power to dominate

employees (Bogg & Estlund, 234).

The second principle that works with the three principles to defend the right to strike is

the idea that employees should have the freedom to associate with those willing to associate with

them (Bogg & Estlund, 235). According to Bogg & Estlund, the freedom of association is a basic

liberty for the derivation of a right to strike (Bogg & Estlund, 235) the main supporting structure

of its defense on the right to strike is that individuals should be able to do individually what they

are at liberty to do collectively. The idea is that employees should be allowed the choice and

freedom to partake in collective bargaining and be able to strike if needed. Bogg and Estlund use

Pettit’s argument that basic liberties cannot include a right ‘of anyone to determine how others

act’ in order to further defend the right to strike if no freedom of association is present (Bogg &

Estlund, 235). Pettit argues against an understanding of basic liberties that would entrench the

rights of existing groups defending the right to strike as it entails a right to join with others in

exercising equally basic rights of voice and exit, free from employer reprisals (Bogg & Estlund,

238). Not only is freedom of association an important principle as it would allow individuals to

be able to join unions and strikes without being fired, but it also allows employees to have a say

in their work an example being wage increases (like the ta strike).

Freedom of association is just one of the fundamental principles in Bogg & Estlunds

defense of the right to strike, however, cannot be defended without the last principle that

connects making Bogg and Eastlund’s defense of the right to strike solid. The freedom of
contestatory expression is the third principle in Bogg and Estlund’s defense of the right to strike.

The freedom of contestatory expression encompasses a right to contest the employer’s

discretionary decision-making as it bears on the employee’s life at work (Bogg & Estlund, 239).

A strike is an expression of a group of employees to their employers, it is a clear expression that

they want to change and they want it now, strikes are fundamental as they make the workplace

somewhere employees get a say on change that needs to happen. Brian Langille makes an

excellent example that supports the idea that freedom of contestatory expression is the right to

strike, rather than an excuse for employees to not work. Langille asks the question ‘what is a

strike’ to which he explores the difference between employees going on strike versus going

fishing and the big difference is that strikes are always expressive and rooted in employees

collectively agreeing on change in their workplace (Bogg & Estlund, 239).

Freedom of expression alone is not a valid reason to strike as the freedom to exit and

freedom of association must be there, one may have freedom of expression, however without the

right to exit and associate in a group with others, freedom of expression is not merely enough

defense on the right to strike. The same goes with freedom of association, employees can have

the right to form groups and unions to collectively and individually protest, however without

freedom of expression, they can not express the change they want to see and without freedom of

exit, cannot be absent from the workplace to partake in a strike. As well as the freedom to exit, it

is not a sufficient defense on its own without freedom of expression and association. Bogg &

Estlund emphasize the importance that all three roles must play together to defend the right to

strike. The right to strike is a crucial labor right that allows workers to assert their rights and

improve their working conditions. Despite certain limitations and restrictions, the right to strike

is an essential aspect of a fair and just society and plays a vital role in promoting social justice
and equality. The right to strike is an important safeguard against the abuse of power by

employers. Without the ability to withdraw their labor, workers may be vulnerable to

exploitation and mistreatment by employers who hold all the bargaining power. The right to

strike helps to balance this power dynamic and ensures that workers have a voice and a means of

standing up for their rights. Bogg & Estlund’s proposal counters the three basic liberties

developed using the republican ideal of non-domination and contestatory citizenship as a defense

for the right to strike. The republican ideal of non-domination emphasizes the importance of

individual freedom and autonomy, and the need to protect individuals from being subject to the

arbitrary power of others (Bogg & Estlund, 230). Using support from Pettit's theory on basic

liberties, Taylor’s account of ‘exit- orientated’, and Langille’s contestatory expression theory

Bogg & Estlund have crafted a heavily supported defensive argument on the right to strike.

Using the republican ideal of non-domination has played a significant role in the development of

Bogg & Estlund’s idea that the three basic liberties defend the right to strike action making their

defense well crafted.

Next, I will explain two objections to Bogg & Estlund’s defense of the right to strike

using objections from both Hayek and Gourevitch. Starting with Hayek’s objection he focuses on

the idea that ‘freedom of association’ is a term that has lost its meaning, and instead has become

the freedom of the individual to join or not join a union (Hayek, 385). Hayek’s objection brings

up the idea that freedom of association has lost its credibility, he uses an example that in many

countries voluntary associations of workers had only just become legal when they began to use

coercion to force unwilling workers into membership and to keep non-members out of

employment (Hayek, 385). For Hayek, closed shops, like mass picketing, represented the prime

institutional technique through which unions deployed coercion against workers to entrench their
privileged position: ‘the chief factor which enables unions to coerce individual workers is the

sanction by both legislation and jurisdiction of the closed or union shop and its varieties, for

Hayek, the only remedy was the immediate repeal of unions’ statutory immunity from the

restraint of trade doctrine (Hayek, 389). Hayek uses ‘neo-liberal’ ideology in their approach to

his objection to Bogg & Estlund’s idea of freedom of association not being a principle as

workers are forced to associate with unions. Hayek’s concern focuses on the powers that unions

today generally possess, either with the explicit permission of the law or at least with the tacit

toleration of the law-enforcing authorities. Bogg & Estlund can overcome this objection by

bringing up a new Labour approach to Labour laws. Bogg and Estlund can bring up the counter

objection to Hayek that New Labour was firm in its hostility to closed-shop arrangements,

because of the value of individual freedom of choice for workers. Workers should be free to

choose to join a union, e, they should be free not to join a union (Adams, 18). Bogg & Estlund

can also overcome Hayek’s objection by bringing up the fact that the Conservative government

introduction to legal measures where trade unionists were granted important new rights that

placed substantive restrictions on union discipline and expulsion, including a right not to be

disciplined for refusing to participate in lawful strike action (Adams, 23). Hayek’s objection that

unions are forced and freedom of association is not a principal defense of the right to strike can

clearly be overcome by Bogg & Estlund, using the new Labour’s approach to Labour laws and

the Conservative government’s policies that do not allow unions to be forced onto workers.

Hayek claims that the law and higher authority government do little to prevent unions from

coercing and not giving employees a choice on whether or not they want to join unions which

Bogg & Estlund can overcome using new labour laws.

 Next, I will be looking at Gourevitch’s objection to Bogg & Estlund which focuses on the

idea of subordination vs domination, more specifically Gourevitch argues that Bogg & Estlund

are inattentive to modern forms of economic domination enacted through a system of wage

labour and private property (Gourevitch, 308). Gourevitch argues that structural domination is

the means of being subject to the uncontrolled power of others. Gourevitch brings up the idea

that Bogg & Estlund do not consider wages which dominate employees right to strike.

Gourevutch brings up the idea that while yes workers can strike the pressure of wages take away

that right. Bogg & Estlund can object Gourevitch’s objection by considering previous strikes that

have occurred, such as the ta strike in which the right to strike is crucial because it can actually

help economic development as wages will increase and work conditions will better showing that

the strike is needed and economic domination cannot overcome strikes.

In conclusion, Bogg & Estlund's emphasize that the right to strike is a fundamental right

of workers and is essential for ensuring fair and just working conditions. Bogg & Estlund use the

three principles, the right to association, the right to exit, and the right to expression as a

structure for their defense of the right to strike. Bogg & Estlund face two objections from both

Gourevitch’s idea of structural domination vs subordination and Hayek’s idea of right of

association being inadequate, both objections which can be overcome by Bogg & Estlund.
 Works Cited

Zoe Adams, A structural approach to labour law, Cambridge Journal of Economics,

Volume 46, Issue 3, May 2022, Pages 447–463, https://doi.org/10.1093/cje/beac008