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33 Fla. St. U. L. Rev. 1119 (2005-2006)
Philosophical Foundations of Labor Law

handle is hein.journals/flsulr33 and id is 1133 raw text is: PHILOSOPHICAL FOUNDATIONS OF LABOR LAW* HoRAcIo SPECTOR** I. INTRODU CTION .................................................................................................. 1119 II. THE ARGUMENT FROM FREEDOM ...................................................................... 1122 A . Positive Freedom ........................................................................................ 1122 B . R eal Freedom ............................................................................................. 1125 III. THE ARGUMENT FROM EQUITY AND SOCIAL JUSTICE ........................................ 1128 IV. THE ARGUMENT FROM NONCOMMODIFICATION ................................................ 1136 V. THE ARGUMENT FROM PATERNALISM ................................................................ 1139 VI. THE ARGUMENT FROM EQUAL AUTONOMY ........................................................ 1144 V II. CONCLUSION ..................................................................................................... 1147 I. INTRODUCTION Labor law is an offspring of the social and political action of the working class movement. While this movement started its first re- volts in seventeenth-century Europe, it was only capable of organiz- ing itself in the nineteenth century when the old laws against combi- nations were repealed.' During this period, socialist ideologues pro- vided the intellectual substratum for the movement to flourish.2 Thus, in England, Robert Owen inspired the foundation of the Grand National Consolidated Trades Union in 1834, Ferdinand Lassalle founded the General German Workers' Union in 1863, and the follow- ing year Karl Marx was a chief actor in the creation of the Interna- tional Working Men's Association, usually called the First Interna- tional.3 Governments conceded both democratic and labor law re- forms under the pressure of uprisings, and toward the end of the cen- tury, when working class parties and trade unions consolidated their power, labor and industrial legislation was an essential feature of European law.4 The emergence of American labor law was influenced by socialist ideas as well. It is worth quoting one of the leading experts in labor policies in the interwar period, Walton Hamilton, who served as the first U.S. representative to the International Labor Organization (ILO) in 1935: * Early drafts of this Article were presented on January 25, 2005, as a Simon Tobias Lecture at the Florida State University College of Law; on March 1, 2005, as a seminar at the University of San Diego School of Law; on May 16, 2005, as a seminar at the Facultat de Dret of Universitat de les flies Balears; and on May 25, 2005, at the Special Workshop on Econom- ics, Ethics, and Law at the 22nd IVR World Congress in Granada, Spain. I thank audiences on all these occasions for their very helpful questions and criticisms. ** Dean and Professor of Law, Universidad Torcuato Di Tella. 1. WOLFGANG ABENDROTH, A SHORT HISTORY OF THE EUROPEAN WORKING CLASS 15 (Nicholas Jacobs & Brian Trench trans., New Left Books 1972) (1965). 2. See id. at 15-26. 3. Id. at 16, 32-33, 40. 4. See id. at 41-50.