Coercion and Freedom in Labour Law: American, Canadian, and Israeli Perspectives

Abstract

This article takes as its starting point the fact that we live in democratic and progressive societies, and all need to participate in social structures. Whether we like it or not, we are all part of a political and social organization, just as we are part of multiple social communities. As Alexis de Tocqueville observed, as individuals in a given society, our associative efforts should be our strongest means for action and self-fulfilment (See Alexis de Tocqueville, Democracy in America (1835). ). Social structures need to solve collective action problems, to facilitate collective action and safeguard the participants’ rights. Collective labour is a social structure, and one that needs to solve collective action problems. Based on Kelsen’s analytical framework, this article argues that freedom for the individual in the collective labour context is a form of political liberty: the employee is granted the right to vote and to define his or her collective representative will. The majority requirement and the need to pay union dues represent an inevitable compromise between the need to act collectively and the need to ensure individual freedom. It is argued that the demand to ensure total freedom for those taking part in collective bargaining is basically a call for its destruction.