Enacting a job guarantee spills over to judicial right-to-work – that revitalizes the Lochner era court system and decks unions.

At this point, let us consider another aspect of the debate, one that should pose awkward questions for those espousing a “job guarantee” or workfare strategy. It concerns the ancient idea of the right to practise, the right to work in activities of one’s choice and capabilities. The claim is that everybody should be allowed to practise the sort of work that they wish to do or feel capable of doing, and that nobody should be allowed to block them from doing so without demonstrated good reason. This is close to being the libertarian position.

In the USA, libertarians like to hark back to the Lochner era, when in their view the right to practise was fully respected. In their more enthusiastic moments, they go back to the Magna Carta of 1215, which affirmed a right to buy and sell unhindered, to support their claim that “the right to practise” means there should be no impediments to anybody practising any form of work they wish. Sometimes, they add “as long as it does no deliberate harm to others”. The Lochner era began in 1905, with a legal ruling in New York that any law or action by a third party, such as a trade union or government agency, intervening to set conditions or standards for a labour relationship was a contravention of “liberty of contract”, or the right to practise, which is often taken as synonymous with “the right to work”.

This legalized libertarian position was maintained in the USA until 1937, when a progressive majority in the Supreme Court effectively managed to overturn it in repudiating the Constitutional commitment to liberty of contract, thereby enabling Congress to set laws relating to economic matters, and leading to a raft of legislation setting labour standards. In recent years, modern libertarians have fought to reinstate it, and to some extent they have succeeded, as they have within the European Union through rulings by the European Court of Justice.

There are several familiar drawbacks with the libertarian position. By saying that no external intervention should be allowed to interfere with a contractual arrangement, the risk is that vulnerable people will be exploited and oppressed. One can think of numerous situations. The vulnerability has been a major justification for labour law and the legal treatment of collective bargaining. However, those traditional mechanisms are inadequate in a tertiary society, which is why they have gone into terminal decline. In flexible labour markets, in which more and more people belong to the precariat or fear dropping into it (Standing, 2009), those old labour institutions are blunt instruments for combating oppression and exploitation, including self-exploitation, particularly when there are so many pressures to do work-for-labour off the workplace and outside so-called working hours. To be able to resist those pressures, people need a deep-rooted sense of security.

Libertarians are correct in wanting to assert that freedom requires the citizen to be able to choose freely to labour and to work, subject to doing no harm to others, at least not deliberately, knowingly or carelessly. They are simply wrong for implicitly allowing the persistence of vulnerability, and for ignoring the legitimate need to overcome problems of asymmetrical information that typically pervade all labour relationships.

A more common objection to the libertarian position is that it could leave consumers or customers exposed to dangers. One would not want everybody to be architects or doctors. This leads to issues of professional licensing and accreditation, and to the rationale for various mechanisms of regulation. Libertarians have interpreted all regulatory interventions as interfering with the right to work. They have drawn their inspiration from the father of modern economics, Adam Smith, who opposed long apprenticeships as an infringement of the right to work. As discussed elsewhere (Standing, 2009), there are competing claims here, between the interests of consumers, professionals, other workers and society as a whole. Suffice it to state that if a right to practise or a right to work is to be respected, then whatever protective regulations are required should be based on deliberative democracy and respect for principles of social justice.