The right to Have Power and the Power to Have Rights: A Response to Kevin Kolben by Guy Mundlak

[Guy Mundlak is a Professor at Tel Aviv University Buchmann School of Law]

I opted for law school because I wanted to take part in the practice of human rights. Several years later I found myself deeply engrossed in the study of labor law. At the time, Israel was still considered to be strongly collective, solidary, and densely covered by collective agreements. Being organized was not a contested topic. However, the rights of Palestinians, minorities and identity groups were considered to be fragile. Over time, I learned that the rights of people in poverty, of workers, and of the unemployed could no longer be taken for granted. The collective system was never as encompassing as it seemed, and it has since fragmented, disadvantaging many workers.

Kevin Kolben went to law school with a strong urge to make a difference in the field of labor. In the exceptional industrial regime of the United States, being unionized was itself a matter of minority identity and a field of struggle. Yet the United States was considered to be a world leader in diffusing principles of democracy and human rights across borders. Several years later, he found himself taking part in a human rights movement. Since 9/11, the challenges of security and national tendencies have reminded those at the heart of western democracy that human rights must be constantly nurtured, and that socioeconomic matters are intertwined with fundamental human liberties. Over the years, our social circumstances have brought us to Virginia Leary’s metaphor of parallel tracks, and since then we’ve been hop-scotching together from one track to the other.

For both of us, the study of labor law is no longer about defending rigid work routines and lifelong tenure, both of which were governed by detailed collective agreements. Both of us read the literature on the East/West and North/South divides, patterns of migration, and global chains of production and care as matters that can no longer be relegated to the old conflicts of communism v. capitalism. The current discussion on varieties of capitalism is also informed by the important realization that civil liberties and social rights are intertwined. Protecting the insiders can no longer be accomplished by looting all the goods at the expense of the outsiders. To the extent that we research and teach those matters that concern us as human beings, the tracks can no longer be kept separate.

Kevin Kolben’s Article is important because he provides the details and examples that demonstrate how the tracks gradually meet. He also warns that fundamental differences remain. It seems to me, having taken the Article apart and looked at the stylized differences, that they are somewhat overstated. The practice of human rights probes the private sphere much more deeply today than in the past. The right to privacy, for example, is of concern to private interests just as much as it is to the state. Commercial interests in information have commodified personal experiences and made private information a matter that human rights must protect. While state censorship is still a matter of utmost concern, lack of access to commercial platforms of communications is currently a significant hurdle hampering the ability of minority groups and dissenting opinions to reach the broader audience. In this era of intense privatization, the rights to water, adequate subsistence and educational resources are matters that target the private and the public equally. Similarly, the assumption that labor is collective, whereas human rights are individual, is a stylized version of our past experiences. Individual rights in employment seek to empower individuals vis-à-vis employers and labor collectivities alike. In the human rights discourse, individuals are increasingly being seen not only as unencumbered selves, but as socially embedded humans, whose interests and goals cannot be separated from the many collective associations in which they take part. The right to human development is a prime example of integrating individual and communal futures. The distinction between rights of outcomes and rights of process can be similarly unpacked. The Maastricht guidelines on social rights hold that social rights (but, in fact, all rights) contain both dimensions within them.

Stylized differences of the type that is highlighted by Kolben are easy to deconstruct, but should not be undervalued. Rights of all kinds are not a sterile mode of legal argument. They carry historical baggage, common intuitions, and the scars of failure and prizes of victory. Kolben’s Article is an attempt not to neatly model a cost-benefit analysis, but to realistically confront the lost assumption of labor and human rights activists that any one single body of rights discourse can resolve debates, ensure results, establish just processes, and serve a well rounded promise of inclusion. Yet, what is the lesson of this observation? Are labor rights and human rights gradually converging into one, or do they remain distinct fields of praxis? Reading Kolben’s Article opens many possibilities. Let me try to suggest one.

Drawing on the wisdom of citizenship as ‘the right to have rights,’ the pooling together of labor rights and human rights can be conceptualized as the right to have power, and conversely—the power to assert and exercise rights. Recognizing the right to associate in a trade union aids in empowering workers. That is the paradigmatic example of the ‘right to have power.’ Being able to act in concert, whether as workers, minorities or other disempowered groups, is the power to assert rights. Acting together can take the form of collective organization at work, but also of mass demonstrations against censorship of dissenters, or consumers’ exchange of information on the labor and environmental practices of multinational corporations. Neither the power to assert rights (traditionally the domain of labor) nor the right to assert power (traditionally the domain of human rights) is currently exclusive to any one type of rights discourse. Moreover, power is not a monolithic term. It designates the power of one over another, the power of public and private agents to normalize perceptions and norms of conformance, but also the power of the many to succeed in acting together. Fighting power, obtaining power, realizing the strength of being together and challenging prevailing norms have become a common practice of scholars and activists who are engaged with different types of rights. The gradual merging of labor rights and human rights is therefore the product of realizing the benefits and limitations of old traditions that emphasized rights or power. The gradual convergence of the two fields provide a coherent scheme that suggests that whatever cause is being endorsed, the right to power and the power for rights are the essence of caring for the disempowered.

The meshing of human rights and labor rights puts many of us in mind of the telos that brought us into these fields of practice and research—to speak on behalf of and organize the disempowered. A history of mutual critique, elaborate deconstruction of each side, and phases of outright animosity, has gradually given way to the fundamental shared empathy for those situated by society in the margins, and acceptance that rights discourses are a strategic legal tool and not an algorithm for just solutions. Human rights and labor rights are gradually becoming indistinct sets of the rights of the disempowered. This may be a naïve portrayal of the complexity Kolben aptly lays out. It clearly does not erase intrinsic conflicts within the discourses of rights and power, but I believe that Kolben’s Article is an important step towards accepting that the tracks must meet.