A Response to Guy Mundlak
I would first like to thank Professor Guy Mundlak for generously taking the time to respond to my Article, and Opinio Juris for hosting this forum.
Professor Mundlak is very correct to note that over time civil liberties and socioeconomic matters have become more intertwined. What’s more, the overlapping identities and realms in which workers function mean that to be protected and empowered in the sphere of work, they must also be protected in other spheres of human functioning. The same holds true in the inverse. Accordingly, the study of labor and labor law is no longer relegated solely to the workplace, and the study and protection of human rights is no longer only about civil liberties and the relationship to the state. With this I agree.
Professor Mundlak also suggests that the differences that I highlight between labor and human rights movements are perhaps somewhat overstated. And in fact I agree that they probably are—but not by much. Human rights, such as privacy rights, or the rights to water and education that Professor Mundlak mentions, no doubt penetrate into the private sphere. And indeed, as I mention in the Article, there are increasing efforts to try and apply international human rights regimes to non-state actors by scholars and practitioners. But the fact that there is overlap does not mean that there are not still fundamental differences in the conceptualization of these rights. I would be interested, for example, in thinking about what would constitute a democratic, or citizenship approach to privacy in the workplace—notions that I believe are intrinsic to labor rights.
Professor Mundlak in fact draws on the notion of citizenship to propose a very interesting way to think about a traditional cleavage between labor and human rights—that labor rights were traditionally thought of as the power to have rights, while human rights were the rights to have power. What has occurred, he suggests, is that scholars and activists from both arenas have come to understand that both sides of the coin are needed. But I wonder if this is in fact somewhat overstated; and I do believe that the nature of power—who wields it to what ends—remains very different for these two groups. For example, power in human rights discourse tends to mean legal power and rule of law: social movements are fine, but only to the extent that they stay within certain bounds, and help institutionalize desirable legal regimes. In other words, human rights discourse and activists (at least in the United States) tend to underemphasize the power to have rights, in favor of the right to have power. I believe this under-emphasis is particularly notable in the case of groups such as workers and the poor, whom human rights elites might be wary of acquiring “too much power.”
I would very much like to see more of a convergence, but I have yet to see it in practice, culture, or ideology.