JUSTIFICATION FOR THE RIGHT TO WORK

4.6 Jurisprudence - II

Faculty in Charge:
Mr. Saheb Choudhury

Submitted by:
Disha Mohanty
SF0119021

(2nd Year, 4th Semester)

National Law University & Judicial Academy Assam

(NLUJAA)
 TABLE OF CONTENTS

1. Introduction .............................................................................................................. 3
1.1. Overview ........................................................................................................... 3
1.2. Literature Review .............................................................................................. 4
1.3. Research Questions ........................................................................................... 4
1.4. Research Methodology ..................................................................................... 5
2. Understanding The Nature And Value Of Work ..................................................... 5
2.1. Aristotle ............................................................................................................. 5
2.2. Hegel ................................................................................................................. 6
2.3. Karl Marx .......................................................................................................... 6
2.4. John Rawls ........................................................................................................ 7
3. The Nature Of Right To Work ................................................................................. 7
4. Role Of The Government In Protecting The Right To Work .................................. 9
5. Conclusion ............................................................................................................. 10
6. Bibliography .......................................................................................................... 12
 1. INTRODUCTION

1.1. Overview

The Universal Declaration of Human Rights states that “everyone has the right to work, to free
choice of employment, to just and favourable conditions of work and to protection against
unemployment”.1 And even after 70 years of the said proclamation and identification of the
right to work, unemployment is not only prevalent on a large scale around the world, it is also
something that is more or less accepted as a part of the normal functioning of a society. In fact,
Sigmund Freud had philosophized that work is the most fundamental foundation of the society
and not only is it instrumental for the progress of the society as a whole but for our own self-
development and realization of our potential.2 It helps people live a fulfilling life by helping
them secure both material and non-material benefits.

The idea of a welfare state is one where the government takes up the responsibility for an
equitable distribution of wealth in the society and in the process of doing so, also provide
everyone with the opportunity to earn that wealth so that they can earn enough to secure the
basic means of sustenance for themselves. As has also been put forward by John Rawls in his
Political Liberalism, “the lack of opportunity for meaningful work and occupation is
destructive of the citizens’ self-respect”.3 This statement holds maximum relevance in today’s
scenario when unemployment rates across the globe have hit historic highs. In April 2021,
India has recorded an unemployment rate of 8.6%,4 while Canada5 and USA6 have recorded
8.1% and 6.1% respectively. The failure of the state machinery to secure the basic means of
livelihood for its citizens has made headlines and has made it even more important for us to
revisit the entire idea of the right to work to understand its relevance in contemporary times.

1
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III).
2
Saul McLeod, Sigmund Freud's Theories, SIMPLY PSYCHOLOGY, 2018,
https://www.simplypsychology.org/Sigmund-Freud.html.
3
Jeffrey Moriarty, Rawls, Self-Respect, and the Opportunity for Meaningful Work, Social Theory and Practice, 35(3),
2009, pp. 441–459. JSTOR, www.jstor.org/stable/23558453.
4
April unemployment rate up amid COVID-19 curbs, BUSINESS TODAY, Apr 27, 2021,
https://www.businesstoday.in/current/economy-politics/april-unemployment-rate-rises-amid-covid-19-curbs-
cmie/story/437657.html .
5
Canada's unemployment rate reaches 8.1%, DAIJIWORLD.COM, May 08, 2021,
https://www.daijiworld.com/news/newsDisplay?newsID=831166.
6
U.S. added just 266,000 jobs in April, March payrolls revised lower, CNBC, May 07, 2021,
https://www.cnbc.com/2021/05/07/jobs-report-april-
2021.html#:~:text=The%20unemployment%20rate%20rose%20to,an%20unemployment%20rate%20of%205.8
%25.
Right to work exists at the intersection of social and economic rights and of civil liberties.7 It
is a human right that applies to all humans. And irrespective of its importance, the right to work
has not been as much importance while considering the instruments to gauge the idea of justice.

The aim of this paper is to make a case for the right to work for citizens of a country and to
understand the content of such rights by pointing out the value of work and thereby prove why
the proper working of state machinery is instrumental for the protection of such rights.

1.2. Literature Review

Though different literature has been used in the formation and compilation of the research
project by the researcher. But this has largely contributed towards the understanding of the
project.
➢ Richard T. De George, The Right to Work: Law and Ideology, 19(1) VAL. U. L.
REV., 1984: This academic paper dives extensively into the philosophy behind the
idea of work and why there should be a right for it. It puts into perspective the idea of
right to work being a human right. While doing so, it explores the nature of the right
to work and argues as to why the State should not only acknowledge it as a
fundamental right, but also take appropriate measures to enforce it.

➢ V. M. Dandekar, Making Right to Work Fundamental, 26(11) ECONOMIC AND

POLITICAL WEEKLY, 1991: The demand to make the right to work a fundamental
right in the Constitution is not new. The issue has however once again been brought
into focus by election manifestos of various political parties. This article argues that
there are two aspects to the question: one, the legal implications, and two what the
state can do to ensure such a right. The author examines both aspects together with a
view to establishing how the right may be made fundamental without imposing on the
state a burden beyond its capacity.

1.3. Research Questions

• Whether the value of work is such that it should be protected via the instrumentation of
a legal right?

7
HUGH COLLINS, Is there a Human Right to Work? The Right to Work: Legal and Philosophical Perspectives,
Ed. Virginia Mantouvalou. London: Hart Publishing, 2014. 17–38. Bloomsbury Collections. Web. 17 Mar. 2019.
 • If we recognise a right to work, we must consider the correlative duties that the state
and employers have to fulfil?

1.4. Research Methodology

The research methodology followed here is that of doctrinal research. Data collected is from
both Primary and Secondary sources. Various reports, article, books, and newspaper had been
used in the completion of the project. The library also proved to be very helpful for the same.
The bibliography enumerates some of the sources used for the completion of the project. The
form of citation used is Bluebook (20th Edition).

2. UNDERSTANDING THE NATURE AND VALUE OF WORK

In the simplest sense of the term, ‘work’ can be understood as the performance of services for
which the person receives remuneration.8 Thus, work refers to the productive and valuable
labor to secure adequate means of livelihood to enjoy a decent standard of living. But as has
already been mentioned, the goal of work is not just gainful employment. It is to have a
fulfilling life as well. This means that every person who is gainfully employed also has a basis
for self-respect, respect from others and the possibility of autonomous choices in life.9
Therefore, in a way it can be said that the right to work is instrumental in fulfilling and
protecting individual autonomy to a certain extent. The nature and value of work, especially its
importance in building the foundations of justice in a society has been greatly talked upon by
multiple philosophers and some of those shall be discussed here.

2.1. Aristotle

To make my case for establishing the value of work, I would like to start off by citing the
function argument by Aristotle. Even though, this piece of philosophy has been heavily
criticized for having controversial or metaphysical assumptions, I provide an alternate
understanding of the crux of the argument which remains relevant in modern times too.
Aristotle developed upon Plato’s argument in the Repubic and is based on the human right to
the pursuit of happiness. He says that happiness is activity of the soul in accordance with virtue
in a complete life.10 In simpler words, he means to say that every human aims to have a happy

8
Compensation: What does it mean? What are the types?, PAYSCALE, Jan 13, 2020,
https://www.payscale.com/compensation-today/2020/01/what-are-the-different-types-of-compensation.
9
COLLINS, Supra Note 7.
10
Frede Dorothea, Plato's Ethics: An Overview, THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Winter 2017
Edition), Edward N. Zalta (ed.), https://plato.stanford.edu/archives/win2017/entries/plato-ethics/.
and flourishing life but for that to happen, they need to perform the function (ergon) that
corresponds to their unique characteristics, guided by rationale and logic. To understand the
theory in the context of this paper, it can be pointed out that a major part of the human life is
consumed in their occupation that should be aligned with their special skills and character,
which ultimately gives them a purpose in life. When the human being functions, in furtherance
of such skill and purpose, that inherently brings out good in them. This not only helps the
human being to introspect and understand themselves better, but at the same time, is extremely
beneficial to the society.

2.2. Hegel

This brings us to Hegel’s idea on labour which provided a powerful conception of human
beings in the world and a rich conception of freedom. The key idea was that it is through their
own labour that human beings are able to develop raw form of resources through their
intelligent efforts into things that help them achieve their goals and needs.11. The labour of the
individual for his own needs is just as much a satisfaction of the needs of others as of his own,
and the satisfaction of his own needs he only obtains through the labour of others. While
analysing the effect of labour vis a vis its importance in a civil society, Hegel had put forward
its relation with capitalism. He thought of it to be both economically productive and an activity
by which the society and its members can transcend the mere capitalistic dimensions of society
and thereby become politically established within the boundaries of the ethical state. Work then
becomes a socially constructed and hereditary activity, which can best be understood in a
social-historical context. Hence, 'modern commercial society, beneath the surface play of
alienation and diremption, does yield institutions, practices, principles, and values that generate
forms of social solidarity.12 Labour could thereby simultaneously be understood as capitalistic
and non-capitalistic in Hegel’s political philosophy.

2.3. Karl Marx

Now, while Karl Marx definitely appreciates Hegel’s approach to understanding the essence
of labor in the life of human beings, he also criticizes Hegel for taking a one-sided approach to
analysing labor. According to Marx, labor is the driving force of freedom. This freedom, that
Marx refers to here is the “self-realization” that comes through labor. However, the problem

11
Hegel on labor and freedom, UNDERSTANDING SOCIETY, Aug 11, 2019,
https://understandingsociety.blogspot.com/2019/08/hegel-on-labor-and-freedom.html.
12
Hegel and Labour, Talk by Paul Ashton at "Legacy of Hegel" Seminar, University of Melbourne, 5th February
1999, https://www.marxists.org/reference/archive/hegel/txt/ashton.htm.
with modern society is how the capitalistic modes of production affect the nature of labor.13
His reasoning was as follows: although workers produce things for the market, market forces,
not workers, control things. People are required to work for capitalists who have full control
over the means of production and maintain power in the workplace.14 Thus, work becomes
degrading, monotonous, and suitable for machines rather than for free, creative people.

2.4. John Rawls

On the other hand, Rawls was confident that his vision of a well-ordered society justifies
meaningful work for all. According to his theory of justice, in a well-ordered society "no one
need be servilely dependent on others and made to choose between monotonous and routine
occupations which are deadening to human thought and sensibility".15 Through these claims,
he implies that the opportunity for meaningful work is a social basis of self-respect, which is
the “most important primary good” and that “the parties in the original position would wish to
avoid at almost any cost the social conditions that undermine self-respect”. In Justice as
Fairness, Rawls develops the idea of a socioeconomic form he calls “Property-Owning
Democracy”, which he claims overcomes "the narrowing and de meaning features of the
division of labor.”16 In other words, through this idea, Rawls makes an attempt for the equitable
distribution of capital and productive assets are throughout society though still privately owned.
Property-Owning Democracy, unlike the welfare state, entails broad measures aimed at
discouraging the increasing accumulation of wealth by a political and economic elite.

3. THE NATURE OF RIGHT TO WORK

Through the above discussion it can be concluded that the right to work can be understood as
both, a universal human right as well as a significant component of the right to life. The right
to life carries with it the right to engage in those activities, compatible with the exercise of the
rights of others, necessary to sustain life. Work is the typical means by which adults maintain
themselves and produce the goods they need and want to sustain themselves and those
dependent on them.

13
Risto Heiskala, Marx, the Modern World, and the Problem of Social Regulation, 29(4) ACTA
SOCIOLOGICA (1986): 311-23. Accessed May 19, 2021. http://www.jstor.org/stable/4194644.
14
David Prychitko, Marxism, THE LIBRARY OF ECONOMICS AND LIBERTY,
https://www.econlib.org/library/Enc/Marxism.html.
15
Jeffrey Moriarty, Rawls, Self-Respect, and the Opportunity for Meaningful Work, 35(3) SOCIAL THEORY AND
PRACTICE, 2009.
16
Id.
One's self-respect as well as the respect of others is closely linked with what one does, how a
person expresses himself through his actions, and the extent to which one assumes the full
burden of and responsibility for one's life. A person who is not allowed to work, is not allowed
to take a rightful place in society as a contributing, mature, responsible adult. The right to work
is in this way closely related to the right to life and is derived from it for every society.

The right to work can be interpreted as both a negative and as a positive right. As a negative
right, no one, including the government, may legitimately prohibit someone who wishes to
work from doing so.17 A positive right to work, however, would require that somebody ensure
that everybody has a job so that everybody can realize their participation in the productive
activity of that society. 18

The right to work would tend not to arise in a society that had a shortage of labor. If the demand
for labor always exceeded the supply, the notion of the right to work would have little, if any,
importance, except in its negative sense. The issue of the right to work typically arises when
the supply of labour exceeds the demand, when large numbers of people have no choice but to
be unemployed in a state that had once promised them opportunities for a dignified and
meaningful life.

Unemployment, in this sense, might result from the economic structure of society. Under the
right to work, no individual employer has the obligation to employ others, and employers,
acting individually in their own interests, cannot be blamed if collectively they cannot provide
work for all who want it. It is the way the economic system operates that is to blame, not
individual employers within it.19 In such a situation the right to work is equivalent to the right
to employment for those who are able, willing, and desiring to work and unable to engage in
productive work if not employed.

The aim of the government and the society as a whole should be to work towards the goal of
full employment.20 In fact, the International Labour Organization, 1944 has provided more
focus on the idea of full employment rather than the right to work to ensure the wholesome
growth and development of the society. It focuses on full employment that raises the standard

17
Ran Hirschl, Negative’ Rights vs. ‘Positive’ Entitlements: A Comparative Study of Judicial Interpretations of
Rights in an Emerging Neo-Liberal Economic Order, 22(4) HUMAN RIGHTS QUARTERLY, pp. 1060–1098.
18
Id.
19
Richard T. De George, The Right to Work: Law and Ideology, 19 VAL. U. L. REV. 15 (1984).
20
Full employment is an aim or goal that if reached would go a long way towards implementing the right to
employment for all those seeking it. However, "full employment" is usually defined in such a way as to be
compatible with a certain level of unemployment.
of living of the people and in such occupations that bring them the greatest satisfaction.21
Ideally, this is the direction in which the economic policies and interventions of the government
and the states should be directed in.

4. ROLE OF THE GOVERNMENT IN PROTECTING THE RIGHT

TO WORK
The notion of the government being the employer of the last resort, is one, that has usually
been criticized by the traditional governments. For most of the times, the reason cited is that
the government cannot force private employers to hire people and that the government cannot
“create jobs” when they do not exist.22 However, through all this, the government not only fails
to acknowledge its responsibility to provide a dignified life to its citizens but also to factor in
the huge potential that the public sector enterprises hold in boosting the employment scenario
in a country, which is basically built from the taxpayer’s money.

For example, during the Great Depression, the federal government had created the Work
Progress Administration (WPA),23 which has been regarded as a forerunner to the concept of
Employer of Last Resort. The aim was to lower the unemployment rate, thereby moving
towards the goal of “full” employment. It reflected the reality that since the private sector was
not creating sufficient jobs, the public sector would then have to pick up the slack and it
provided public employment to those who were without a job.

The burden of implementing the positive human right to work might be placed on individual
employers as well as on the government, but would in either case have to be enforced by the
government. There are two aspects to the question of unemployment. One deals with those who
do not have employment and who seek it. The other concerns those who have employment and
who through no fault of their own lose their jobs. Concentrating on the private employer,
government can take several approaches with respect to employment, short of entering into the
business decisions of hiring and firing. One way is through tax incentives to motivate firms to
retain employees they might otherwise fire. A second is to require firms to relocate employees

21
Abramovitz, Moses. 1986. “Catching Up, Forging Ahead and Falling Behind.” Journal of Economic
History 46(2):385–406.
22
Ontiveros, Maria L. (1992) "Myths of Market Forces, Mothers and Private Employment: The Parental Leave
Veto," Cornell Journal of Law and Public Policy: Vol. 1: Iss. 1, Article 2.
23
OREN M. LEVIN-WALDMAN, The Difference Between Negative Rights and Positive Rights, TRIBUNE, Mar
11, 2019, https://www.yonkerstribune.com/2019/03/the-difference-between-negative-rights-and-positive-rights-
by-oren-m-levin-waldman-ph-
d#:~:text=The%20right%20to%20work%20in,that%20person's%20right%20to%20work.
when plants are shut down, or to retrain them for work that is available. Another approach
consists of tax benefits for firms that provide training programs for the unemployed, whether
or not they are actually later employed by that firm. A fourth approach would require a general
temporary cut in pay for all members of a firm together with a temporary reduction in hours
worked. Lowering the number of hours in the work week would also share work more widely
making more jobs available, as would precluding overtime for employees.

In times of recession or depression, there will undoubtedly be many unemployed people who
cannot be employed by the private sector. The government can meet its obligation to such
people in a variety of ways. The most obvious but perhaps in the long run one of the least
desirable is for the government to become an employer of last resort, in any of the senses
discussed earlier. Such an approach is preferable to the alternative of welfare. But it is by no
means the only one.

Structural unemployment can be handled by a combination of relocation and retraining, either

provided directly by the government or subsidized by the government. Training and relocation
allowances are necessary to match the unemployed with the employment available. Frictional
unemployment can be eased by providing better information on the availability of jobs.

Securing of employment is one part of the right to work in which the government can play a
significant role. The securing of work commensurate with one's capacities and training or
education is, of course, more difficult. But even employment that falls below one's training is
preferable to welfare, providing the work is not degrading or simply make-work, and providing
the real possibility for transfer to more appropriate work is constantly considered according to
some fair system.

5. CONCLUSION

The right to work in its negative sense is a right to be exercised against anyone who would
prevent one from engaging in legitimate labour, and like other human rights, would be enforced
by the government. It is also a right against the government not to be prevented by it from
working. Against whom the positive right to work is to be exercised is less clear. Although
private businesses may be prevented from discriminating in their employment practices, and
although they may also be precluded from dismissing employees arbitrarily and without cause,
they are presently required neither to hire any particular person or persons nor to keep their
work force at a certain number if their needs change, their financial situation deteriorates, or
their desire to cut costs or increase profits mandates closing a plant, laying off workers, or
trimming the number of employees.

That the right to work is not recognized by the State is not only an anomaly; it is a moral failure
that can and should be rectified. If the right to work were considered seriously, the society and
the government would take a different approach to problems of unemployment and welfare.
The legislated mechanisms by which the right to work could be implemented would then be
approached more imaginatively and more seriously than at present.
6. BIBLIOGRAPHY

▪ Richard T. De George, The Right to Work: Law and Ideology, 19(1) VAL. U. L.
REV., 1984.
▪ Jeffrey Moriarty, Rawls, Self-Respect, and the Opportunity for Meaningful Work,
35(3) SOCIAL THEORY AND PRACTICE, 2009.
▪ V. M. Dandekar, Making Right to Work Fundamental, 26(11) ECONOMIC AND

POLITICAL WEEKLY, 1991.

▪ HUGH COLLINS, Is there a Human Right to Work?, The Right to Work: Legal and
Philosophical Perspectives. Ed. Virginia Mantouvalou. London: Hart Publishing,
2014. 17–38. Bloomsbury Collections. Web. 17 Mar. 2019.