ECONOMIC RIGHTS
Pierre Elliott Trudeau*
I -The Past
Traditionally, the law was more concerned, with civil rights than with
economic rights, and understandably so. Since the sixteenth century, western
civilization had been evolving in a context of boundless opportunity, provided
by expanding markets, inexhaustible resources and technological progress.
The aim of the legal machinery was to free man from the fetters left over by
medieval institutions, in order that each person might be at liberty to make
the most out of the existing environment. Hence the legislators and lawyers
were constantly called upon to fashion and to use legal instruments for the
protection and development of civil rights and liberties.
Within such a legal framework, western man reached standards of living
undreamed of four centuries previously. But in the process, he had set up
institutions wherein the principle of maximum self-assertion by all was
eventually to lead to maximum insecurity for many. Economic Darwinism
produced a great incrcment in the wants and needs of industrial man, but not
always the means to fulfill them adequately. More and more people began to
realize that the concept of civil rights availed them little against such realities
as economic exploitation or massive unemployment.
Lawyers were reminded that civil rights were only one aspect of human
rights, and that they were living in times when they could-ill afford to neglect
that other aspect, called economic rights. If the law was to be, as Dean Pound
put it, “a continually more efficacious social engineering”, it would have to
provide a framework from which many of the existing causes of social friction
and economic waste would be eradicated, and within which many economic
“necessities” would acquire the dignity and authority of “rights”. Before
this could be done, however, lawyers would have to become aware of the new
economic structure of society. It is hoped that the present article might help
in inducing such an awareness.
H – The Case
In considering economic rights, it is convenient to distinguish between the
consumer and the producer. There may come a time when it will be sufficient
to protect the rights of the consumer; but in the present state of economic affairs,
consumption depends largely on wages and salaries, and the right of most men
*Economist; member of the Montreal Bar, and of the newly formed Institute of Public Law at the
University of Montreal.
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1,ol. 8
to consume cannot be adequately protected without guaranteeing their right
to produce at fair remuneration.
The case for economic rights might then be stated as follows: Since economic
goods are necessary to satisfy the needs of mankind, and since these goods-
to become serviceable-must in some way be produced, it follows that every
social order should guarantee the rights of man, as a consumer and as a producer.
As a producer, man has a right to demand from society that it offer him a market
for his useful labour or produce. As a consumer, man has a right to a share of
the total production of society, sufficient to enable him to develop his person-
ality to the fullest extent possible.
The present article will briefly examine whether the rights of the Canadian
people, as consumers and as producers, are fully respected.
III – The Consumer
Consumer rights, as stated above, imply that no one in the society should
be entitled to superfluous or luxury goods until the essentials of life are made
available to everyone.
At first glance, that distribution would appear to obtain in Canada. Thanks
to our abundant natural wealth and to the techniques of the industrial era, it
no longer seems necessary to trample on one another in the scramble for riches.
Consequently, most people take it for granted that every Canadian is assured
of a reasonable standard of living.
Unfortunately, that is not the case, as is exemplified in the five following
instances:
1 – By the figures of the 1951 census, 72% of all wage-earners, and 56% of
all heads-of-family wage-earners were making an annual income of less than
$2,500.00, whereas-according to the Toronto Welfare Council-the average
Canadian family then needed $2,678.00 a year to maintain a decent standard
of living.1
2 – Depressed areas and sub-marginal groups continue to exist: consider the
condition of slum-dwellers in large cities, and of the Eskimo and Indian
populations.
3 – There does not exist in Canada a comprehensive scheme of social insurance
which guarantees-regardless of origin-a decent standard of living to every
‘Data from the 1961 Census are not yet available. – The reader might want to compare census
figures with those collected from time to time by the Dominion Bureau of Statistics in its sample
surveys. Besides wages and salaries, D.B.S. figures include other sources of income, such as transfer
payments, self-employment, etc.; they also take into consideration the fact that the head of the
family may not be the only recipient of income in a given family. Taking such facts into account,
the survey for 1951 nonetheless indicated that -44.7 per cent of all non-farm families and unattached
individuals (considered as a family of one) had incomes below $2,500.” The latest comparable
percentage is 28.1 per cent for the year 1959; by that time, of course, $2,500 a year had become even
more pitifully insufficient as a family income, due to the ever-rising cost of living.
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ECONOMIC RIGHTS
person who is prevented from earning a living wage by sickness, age, loss of
breadwinner, disability, or other cause of unenployment beyond his control. (It
would be illogical to think that such hardships could be met through personal
savings, at least in the cases referred to in the two preceding paragraphs).
4 – The present private enterprise economy is geared to the satisfaction of
individual needs, but not to that of collective needs. Consequently there is a
gigantic lag in the provision of educational facilities, hospitals, slum-clearance
projects, recreational opportunities, highways, and other public services.
5 – The existence of the above mentioned shortcomings makes it impossible
for many citizens to exercise their human rights in non-economic fields. For
instance, the cost of education and of medical and dental services prevents all
citizens from having an equal chance of developing their intellectual and
physical capacities. The high cost of litigation, in the absence of a universal
system of legal aid, makes a farce out of the right of equality before the law.
And the cost of conducting elections nullifies high-sounding platitudes about
political equality.
IV – The Producer
If the modern age in Canada has brought on a vastly increased supply of
consumer goods, it has been accompanied by grave encroachments upon the
rights of man as a producer, that is to say upon his right to work. That state-
ment can be supported by a quick glance at the condition of (inter alia) industrial
workers, from four points of view:
1 – The most apparent of the present economic evils is unemployment. For
the first nine months of 1961, the unemployed in Canada averaged 7.8 per cent
of the labour force: in the face of that fact, it is hardly necessary to dwell upon
the reality of cyclical unemployment. But it is important to think a moment
about the problem of technological unemployment.
Inability to prevent
foreseeable disasters such as the mining tragedy in Springhill a few years ago
is proof enough that this society has no plan for supplying alternate employ-
ment to men whose past occupations either no longer exist, or have become
fraught with the risk of sudden death. Consequently, it may well be asked
how this economy will manage to deal with the gigantic upheaval of workers
which will presently be brought about by the third industrial revolution,
based on automation, cybernetics and thermo-nuclear energy.
2 — Concerning their right to obtain fair wages, reasonable conditions of work
and protection against employer discrimination, industrial workers have gone
a long way towards helping themselves by uniting into trade unions. That
such a movement had to exist for some generations in opposition to the law
is of course no tribute to the progressiveness of the members of the legal pro-
fession. Nor is it a tribute to their vigilance that, at the present time, union
busting in its various forms can continue to be practiced without penalty in
this country, where the right of association is supposed to be firmly entrenched.
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[Vol. 8
3 – Even when they do respect trade-unionism, a large part of the Canadian
population-including most of the legislators and industrial leaders-do nor
agree to its full implication. It is a mistake to believe that the mere existence
of unions is sufficient to create equality between the employer and the employee.
Without the right to strike, there is no equality of status between labour and
management, and consequently labour agreements between them cannot be
based on justice. 2 In the same way that Capital can say: “Unless we make a
sufficient profit in a given area, we will withdraw our investment, and there
will be no more employment,” likewise Labour must be able to say: “Unless
we enjoy reasonable working terms in such and such a firm, we will withdraw
and there will be no more operations.” In other words, the right to strike must
include the right for workers to protect their strike, against strikebreakers
and court injunctions. No group of shareholders can break a lock-out by
opening up part of a firm where a lock-out is in progress; and likewise no group
of workers should be able to operate a firm while a strike is in progress.
4 – But even full recognition of trade-unionism in its present form will not be
a sufficient guarantee of producer rights in the industrial age. In the political
sphere, men fought for centuries to prove that there is no substitute for self-
government. In the economic sphere, it is inevitable that-sooner or later-
the same struggle be fought and won. Man does not live by bread alone, and
he will never be content until the dichotomy between those who may arbi-
trarily command and those who must humbly obey is abolished, even in the
economic sphere. Industrial democracy will not be reached any more easily
than political democracy was, but it must be reached. Even today men are
labouring to lay the foundations of a society of equals; and the sooner such
problems as price arbitration, and cooperative management or ownership of
industry can be seriously discussed, the better this society will be equipped to
prevent the industrial revolution from turning into a violent one.
V. The Future
The foregoing statement of economic rights obviously constitutes a large
order. But in such matters the service is slow, so it is not unwise to get orders
in early.
As long ago as 1793, the Declaration of Rights voted by la Convention stated
that “society owes subsistence to unfortunate citizens, either by procuring
them work or by guaranteeing the livelihood of those who are unable to
work.” The French constitution of 1848 also affirmed the right to work.
And by that time, Proudhon had long been preaching the need of “a 1789”
in the economic sphere. Yet nearly a hundred years elapsed between Louis
Blanc’s demand for “social workshops” and F.D.R.’s Public Works Admin-
istration.
2Justicc Holmes considered that liberty of contract could not begin until “the equality of position
between the parties” had been established. Coppage v. Kansas, 236 U.S. 1, 28 (1915).
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ECONOMIC RIGHTS
So progress is slow, and any group of men who foregather to discuss “Social-
Justice” would be failing in their duty if they failed to affirm the rights of man
to the fullest extent. Governments must contend with questions of “how, when
and where”. But in a LawJournal, it is possible to reach for the ultimate goal.
That goal is not the mere inclusion of certain clauses in a Bill of Rights.
For Germany in 1919, Spain in 1931, the U.S.S.R. in 1936 wrote into their
constitutions very noble declarations concerning the rights of man. And yet
those very rights were soon to be trampled upon by dictators.
It is the minds of men which must be changed, and their philosophies.
Economic reform is impossible so long as legislators, lawyers and business men
cling to economic concepts which were conceived for another age. The liberal
idea of property helped to emancipate the bourgeoisie but it is now hampering
the march towards economic democracy. The ancient values of private property
have been carried over into the age of corporate wealth. As a result, our laws
and our thinking recognize as proprietors of an enterprise men who today
hold a few shares which they will sell tomorrow on the stock-market; whereas
workers who may have invested the better part of their lives and of their
hopes in a job have no proprietory right’ to that job, and may be expropriated
from it without compensation whenever a strike or lock-out occurs, whenever
they grow old, or whenever Capital decides to disinvest.
That same erroneous concept of property has erected a wall of prejudice
against reform, and a wall of money against democratic control. As a conse-
quence, powerful financial interests, monopolies and cartels are in a position
to plan large sectors of the national economy for the profit of the few, rather
than for the welfare of all. Whereas any serious planning by the State, demo-
cratically controlled, is dismissed as a step towards Bolshevism.
Yet if this society does not evolve an entirely new set .of values, if it does
not set itself urgently to producing those services which private enterprise is.
failing to produce, if it is not determined to plan its development for the good
of all rather than for the luxury of the few, and if every citizen fails to consider
himself as the co-insurer of his fellow citizen against all socially-engineered
economic calamities, it is vain to hope that Canada will ever really reach
freedom from fear and freedom from want. Under such circumstances, any
claim by lawyers that they have done their bit by upholding civil liberties
will be dismissed as a hollow mockery.
