Relational and associational justice in work

Introduction

This Article explores a relatively uncharted approach to the question of what principles of justice should apply to work. The focus is on employment and other contracts for the personal performance of work. The main task is to construct moral principles by which the conduct of relations between employers and employees and between employees can be assessed to be just or fair. This conduct may concern basic terms and conditions of employment such as pay and working conditions, but it also may involve personal interactions and other forms of cooperation, such as the disclosure of information and consultation about business strategy. The project of an investigation of the principles of justice in work seeks a critical perspective on the law from which it may be possible to suggest amendments and reforms to bring the law into line with the moral requirements of justice in work.

The first step in the argument is to consider what kind of justice is required for the development of principles suitable for justice in work. A distinction is drawn between two kinds of moral theories of justice: distributive justice and interpersonal justice (Part I). Next, it is shown how these contrasting theories of justice suggest different approaches or starting-points for the development of principles of justice applicable to the workplace. It is proposed to follow the direction of interpersonal principles of justice rather than the currently popular application of distributive principles of social justice to the workplace (Part II). It is then argued that the principles of interpersonal justice applicable to contracts of employment are unlike those applicable to contracts in general because contracts of employment share two distinctive features: they are incomplete by design and performance of work normally requires membership in a voluntary association that constitutes a productive organization (Part III). We then consider the possible methodologies for identifying and articulating appropriate interpersonal principles of justice. It is argued that the most promising way to formulate those principles is not to attempt to construct a model based on abstract philosophical ideas such as equality and autonomy, but rather in this context of purposive, collaborative, and consensual activity to examine closely the functioning of the market transaction of employment, its normative assumptions, and its evolving legal regulation in order to obtain the most appropriate principles (Part IV). The Article then proceeds to use this methodology of internal critique to examine how the two distinctive features of contracts of employment provide reasons for its development of particular principles of interpersonal justice. It is argued that incompleteness by design leads to a special and demanding requirement in contracts of employment of performance in accordance with a broad standard of good faith (Part V). With respect to membership of a productive organization, interpersonal justice has developed special principles of associational justice in work (Part VI). The Article concludes by acknowledging that this use of the private law of employment can only take us so far in the development of principles of justice in work and that it has to be supplemented with public law norms that require respect for human rights and distributive justice (Part VII).

I Distributive and Interpersonal Justice

In most contemporary political, moral and legal philosophy, studies of justice focus on the demands of justice for society as a whole.^[1] These philosophical works typically examine and discuss prescriptions and evaluations of the fundamental institutional arrangements of a society such as its constitution and structures of government. Some theorists also explore the justice of the institutional arrangements within a wider federation of states, or even extend their enquiry to frameworks for global governance. These studies of social justice typically concern not only the constitutional arrangements for the exercise of power, such as democratic government and the protection of fundamental rights, but also social and economic issues about the allocation of power, wealth, freedom and other goods that most people value. Liberal and social-democratic studies of social justice, on which we will focus, argue for just distributive principles based upon values such as dignity, liberty, equality, need, utility, and virtue. As in the leading example, Rawls’s A Theory of Justice,^[2] the general ambition of these investigations of social justice is to demonstrate in accordance with moral principles what the basic institutions of a society should contain in order to ensure a just distribution of benefits and burdens among its citizens. For Rawls, a just society would establish a democratic mode of government, protect civil liberties, and steer the distribution of benefits by principles of equality of opportunity and a fair distribution of wealth. The legal arrangements for the realization of such a vision of distributive justice, such as a constitution and a regulatory tax and welfare system, are usually classified by lawyers as public law, because they govern the relations between citizens and the state.

Questions of justice may also arise at an interpersonal level: Has this person treated another individual justly? This dimension of justice has not been a central focus of political and moral philosophy, but it is a key concern of legal theorists. Issues of interpersonal justice or what is also called “relational justice”^[3] arise between ordinary people going about their business and personal lives. The issue may be whether a parent has treated his children justly when favoring one over the others. Or the question of justice may ask whether a builder’s firm should be paid in full for its work in the light of defects in workmanship? Or the question of justice may be whether one person should compensate another for carelessly causing damage to the other’s car. Or, should a person be able to enforce a contract, even though the price for the goods or services seems unfair for being either excessive or inadequate? In such instances, claims about justice are primarily concerned about the rights and obligations between two persons (or organizations). These claims are not directly focused on the distribution of wealth and other benefits throughout society. The claims concern justice between two persons in the context of their direct relationship. As Dagan and Dorfman observe, “Whereas distributive justice focuses on considerations of justice in the holdings (or opportunities) of persons, taken severally, relational justice concerns the terms of the interactions between individuals.”^[4] Following Aristotle’s distinction between distributive and corrective justice, such claims for interpersonal or relational justice are often described as claims for corrective justice.^[5]

What is important to notice is that the moral principles that guide such interpersonal claims of justice may differ significantly from those advocated or approved for the distribution of benefits and burdens in society as a whole. For instance, a claim of interpersonal justice may be based on the argument that one person promised or agreed to confer a particular benefit. Alternatively, a claim may be based on an assertion that one person was at fault in causing damage to the property of another, or in taking it without his consent, so that compensation should be paid or the property returned. Such references to promise, consent, and fault are not usually part of the standards of distributive justice in society as a whole. For instance, a policy of taxing a wealthy person more than a poor one is not selected because of the wealthy person’s wrongdoing or their consent, but because progressive taxation fits into a general scheme of fairness in the distribution of wealth. Demands for interpersonal or relational justice form a core concern of private law, which includes the law of contract and the law of wrongs or torts.

II Two Approaches to the Development of Principles of Justice in Work

The distinction between distributive and interpersonal justice provides the basis for a contrast between two approaches to the assessment of questions of justice in work. The first draws on principles of distributive justice to measure the fairness or justice of the conduct of employers. The second develops principles of interpersonal or relational justice that should apply between employers and employees in work organizations.

On the first approach to issues of justice in employment and work, it is claimed that principles of social justice that apply to society as a whole, whether liberal, libertarian, utilitarian, or some other scheme of social justice, should be transplanted by the adoption of similar rules and principles to govern employment relations.^[6] On this “monist” approach,^[7] for instance, a libertarian theory might advocate complete freedom of contract between employer and employee in order protect liberty and to provide incentives for wealth maximization. For libertarians, as in their view nearly all taxation is theft and mandatory legal rules interfere with freedom, what is just is normally the outcome of freely negotiated contracts, not compulsory redistributions by agencies of the state.^[8] In contrast, a liberal or social-democratic theorist might propose that an egalitarian principle for the distribution of wealth in society should be applied to the workplace. For instance, it might be proposed to apply Rawls’s “difference principle” to all the wages within a firm, under which differences in wealth are only justifiable if they benefit the least well off.^[9] On that approach, high pay for chief executive officers could be justified if and only if it could be demonstrated that by providing this incentive for business leaders, the level of pay for all (or perhaps just the lowest paid) workers in a firm would be maximized because they would share in the greater profitability of the company. On issues of freedom and domination, again we might apply liberal theories of justice to the workplace and insist that, just as autocrats must be controlled in society as a whole by principles such as the rule of law, democracy, and protection of civil liberties and human rights, so too employers must be constrained by similar legal structures of legality, industrial democracy, and respect for the fundamental rights of workers.^[10] For instance, to protect the fundamental right of freedom of expression and discourage corruption by the managers of a business, workers might be granted strong legal protections if they become whistleblowers. This transplant approach, which uses the ideals of social justice to provide a critical perspective on employment relations, is certainly a powerful tool and serves to highlight many concerns about injustice in the workplace arising from inequalities in power and rewards.

A second approach to the question of justice in work investigates what principles of justice could be derived from thinking about employment as raising issues of justice at an interpersonal or relational level. At first sight, this approach, oriented as it is towards private law, may not appear to have much to offer. Private law claims are often viewed narrowly as being composed solely of claims to restore existing entitlements (or rights) or to compensate for their loss. In the context of contract law, those entitlements are often described as determined by the express terms of a freely concluded contract. It would seem to follow that justice in employment on this second approach would amount to little more than performance of whatever contractual terms had been agreed by the parties. Given that employers can often dictate terms in a one-sided way, this standard of justice would tend to condone current employment practices and contractual terms without presenting any critical perspective. For instance, this private law approach would appear to endorse the fairness of wages that have been contractually agreed, regardless of whether they are excessively high or fall below a living wage. To avoid that trap of simply endorsing the justice of the outcome of the power of capital to impose any terms that it chooses, normally liberal and social-democratic oriented political and legal theorists insist that justice in work must be derived from transplanted principles of social justice applicable to the state. Accordingly, these political and legal theorists appeal to human rights, the rule of law, and principles of distributive justice as the best guides to the moral standards appropriate for justice in work.

But that interpretation of the moral principles required within interpersonal or relational justice seems to be an unnecessarily pessimistic view of the interpersonal moral standards present in contracts of employment. Theorists of private law argue that interpersonal or relational justice applicable to contracts in general can provide a richer set of moral principles of justice than simply the enforcement of freely negotiated entitlements. As embodied in private law rules, those moral standards are also concerned with steering the interaction between individuals and helping them to establish worthwhile social and economic relations. This function of private law is described by Dagan and Dorfman in terms of facilitating cooperative arrangements between people that respect their claims to equal treatment in the pursuit of their autonomous goals:

Only private law can forge and sustain the variety of frameworks for interpersonal relationships that allow us—given the normative significance of our interdependence— to form and lead the conception of our lives. Only private law can cast these frameworks of relationships as interactions between free and equal individuals who respect each other for the persons they actually are and thereby vindicate our claims to relational justice from one another. ^[11]

Perhaps more controversially, John Gardner linked the role of private law more closely to morality and support for morally required conduct:

The main point of all law is to help people to do the things that they ought to be doing anyway, quite apart from the law . . . . The law exists to help people avoid wronging each other, to have healthy relationships, to avoid wasting their lives and destroying their self-respect, to cultivate their virtues, tastes, and skills, to overcome their limitations, and so forth.^[12]

On this broader view of interpersonal justice in contracts, private law concerns the support of worthwhile relationships, whilst discouraging the commission of wrongs against another person. Support for worthwhile relationships requires private law to distinguish between contracts that do and do not facilitate the development of exchanges that are valuable to both parties, and to steer those transactions in ways that are likely to prove conducive to the better achievement of the goals of both parties. For example, private law is likely to insert into contractual relationships obligations that arise in the general law of wrongs, such as duties to take reasonable care of the other party’s property and person. Similarly, private law will also try to prevent opportunism within contractual relations, such as demanding additional payments or trying to supply goods that have latent defects.

This Article draws on that general approach of private law theory to the identification of a richer set of norms that private law respects and protects. It focuses on the implications of those ideas about worthwhile cooperative relationships in the example of employment and contracts for the personal performance of work. However, this Article may part company from the work of many private law theorists in three important respects. First, it is not part of my argument that we should completely reject the first approach, the public law or regulatory approach, to questions of justice in work. My point is merely that the abrupt abandonment of private law and its moral standards on the ground that it merely endorses the interests of capital against labor is too hasty. My purpose is to explore the normative resources that may be discovered in principles of interpersonal justice.

Second, this Article argues that the contract of employment is unlike most contracts in two crucial respects. The kinds of moral standards that may be applicable to other common types of contracts such as sales of goods are of marginal significance in connection with contracts of employment. It will be argued that the special normative standards of interpersonal justice that are applicable to employment relations derive substantially from two distinctive features of those contractual work relations. These features will be elucidated in the next Part.

Third, the methodology adopted in this Article differs from that normally adopted by private law theorists. Instead of relying on abstract principles of moral philosophy and justice, such as respect for autonomy or dignity, the method adopted here is one that may be described as internal critique. This method will be explained and defended in Part IV.

III Bilateral and Multilateral Interpersonal Justice In Employment

A contract of employment is similar in many respects to other kinds of contracts. Like most contracts, it is usually constituted by an exchange of promises. The worker promises to perform the required work in return for a promise by the employer to pay the agreed amount of wages when the work has been completed. The law is likely to enforce the justice of this agreed exchange as in other types of contracts. Justice requires enforcement of the bargain not only because it is unfair to break an agreement on which the other party has relied, but also because breach is likely to enable one party to enrich itself unjustifiably at the expense of the other. If the workers fail to perform the required tasks, they have normally no justified claim to the promised wages: no work, no pay. On the other hand, if the workers have performed their obligations in accordance with the contract, they are entitled to claim the promised remuneration. This wage-work bargain at the heart of the contract of employment explains why it is usually supposed that justice between the parties consists primarily in holding them to their agreement.

Whilst that supposition is plainly correct, it provides an incomplete account of the moral standards of interpersonal justice in relation to contracts of employment. Additional requirements of interpersonal justice for work arise because contracts of employment share two distinctive, though not unique, features. These two features concern their character as relational contracts and their functioning within an organizational framework.

IV Internal Critique

The previous Part argued that the contract of employment is unlike other kinds of contracts for two reasons: its incompleteness by design, and the multilateral relations of association in which work is performed. These differences from other kinds of contracts provide the basis for supposing that the normal criteria of fairness and justice that are applied to contracts will be inadequate to address issues of justice in work. As well as the normal moral criteria, such as the parties should keep their promises and comply with the terms of the exchange, the contract of employment requires additional moral standards to address its two distinctive features. The question posed in this Part is how one should discover and identify these additional relevant principles of interpersonal justice for contracts of employment.

One possible approach is to try to develop the principles and abstract standards that apply to contracts in general, in order to adapt them to the distinctive features of contracts of employment. For instance, we might say that the idea of liberty plays a crucial role in the moral standards applicable to contracts in general. It is acknowledged in maxims such as freedom of contract. We could then ask whether the idea of liberty could suggest moral standards that might address issues that arise because of the incompleteness of contracts of employment. One possible issue is that an employer exercises its power of control over employees in a way that greatly restricts their liberty. An example might be a rule imposed by the employer that prevents any private phone calls and messaging during the working day. Could we say that this rule presents an unjustified interference with liberty? The difficulty with such an argument is that the employer might insist that employees have consented to the rule against private messaging by accepting a job with the business, so that they have voluntarily agreed to restrict their liberty in order to obtain the benefits of the job. To interfere with the employer’s imposition of the rule against private messaging would be on this view to violate a basic principle of justice in transactions: to uphold freely made bargains. It is to escape that sort of argument about liberty and consent to oppressive terms that theorists of justice in work so frequently turn to the mandatory standards of public law, such as respect for human rights. In these circumstances, the right to respect for private life can justify the invalidation of a complete ban on personal messaging during the working day.^[18]

An alternative approach to discovering relevant principles of interpersonal justice is to examine practice in the interpersonal relations of employment to discern customs and norms that arise in that context. That approach has the advantage of being able to take into account the actual historical claims made by workers and their employers about justice in the workplace. Through critical analysis of those claims and counterclaims and their associated social struggles, one can reconstruct what norms have been realized in the sphere of employment and what norms could be more perfectly realized.^[19] For instance, as Axel Honneth observes, it is evident that in the early part of the nineteenth century,

the whole idea of a ‘free’ labour contract has been normatively accepted or at least tolerated. If workers call for a ‘right’ to work, then it must be the case that people are no longer [legally] compelled to work; if worker safety and sick pay are demanded, then workers must be convinced that the labour contract obligates employers [not society as a whole] to provide a series of protective measures; and, finally, if ‘exploitation’ becomes a common accusation, then workers must implicitly be legally entitled to the product of their labour [rather than their feudal master].^[20]

Reliance on actual social practice and the claims of justice associated with it carries the danger that it tends to regard current practice as constituting the appropriate moral standards of justice in employment. That risk of merely endorsing what employers do at present has to be met by an examination of the critical normative claims of the participants as well. That critical distancing can also be assisted by examining the norms and claims made in the discourse of the law, including private law that regulates employment.

The private law governing the contract of employment provides evidence of claims and counterclaims about justice in employment. Judgments draw on precedents and legislation to provide a reasoned accommodation between those claims. Modern legislation that confers private-law types of rights on employees provides a particularly fertile source of moral standards. This legislation often includes rights to bring claims for compensation for discrimination on prohibited grounds such as race and sex. Similarly, many countries have legislation that permits employees to bring claims for compensation for unjustified dismissal. The standards established in private law are not necessarily ones that merely endorse employers’ practices. At the very least, the standards of private law aspire to consistency and coherence, which places constraints on purely instrumental judgments. Private law can therefore produce normative standards that enable workers sometimes to make successful claims against employers’ conduct.

In the remainder of this Article, this second approach to the discovery of relevant principles of interpersonal justice in contracts of employment through internal critique will be pursued. The task is therefore to combine a careful investigation of actual conduct and struggles in the performance of work with a refined understanding of the relevant law of employment that confers private rights. We need to keep at the forefront of our deliberations the actual practices involved in the performance of work, because the interpersonal moral standards that we seek are those that help the valuable institution of work relations to flourish. We can also draw on the private law of employment, which has been refined over several centuries to provide regulation that both helps employment to function efficiently and effectively as an economic institution and also tries to address claims for fairness and justice. In doing so, however, we should not forget that the current law may not fully address problems of injustice that may arise within employment for many kinds of reasons such as accidents of precedent, judicial reluctance to intervene in contractual relations, and the internal logic of the law with regard to consistency and coherence.

In the next two Parts, this methodology will be applied to the two distinctive features of employment and its legal regulation mentioned above: that employment is a contract that is incomplete by design and that performance of the contract occurs typically as part of membership of a voluntary productive association.

V Good Faith

The concept of a “relational contract” has become popular in recent years. Unfortunately, the term is understood in many different ways. In sociology, the idea of a relational contracting is a way of expressing the point that every contractual relationship, even those that are trivial and fleeting such as a purchase of a newspaper from a shop, rely upon and are embedded in conventional norms regarding the mutual expectations and obligations of the parties.^[21] In this sociological sense, every contract is to some extent relational. The concept of a relational contract has also been used by institutional economics (or socio-economics) to describe aspects of certain kinds of hybrid business organizations such as franchises that are neither business organizations nor simple commercial exchanges.^[22] It has also emerged in economic game theory to model how some long-term business relations function in a self-enforcing manner without the need for legal sanctions.^[23] But the concept of a relational contract has also been constructed recently as a legal concept in the English courts and elsewhere.^[24]

How has the legal category been described? Judges in England have given examples of relational contracts and indicated some features that they may have. “Examples of such relational contracts might include some joint venture agreements, franchise agreements and long term distributorship agreements.”^[25] Features often mentioned are: the expectation of a longer-term business relationship; investment of substantial resources by both parties; implicit expectations of cooperation and loyalty that shape performance obligations in order to give business efficacy to the project; and implicit expectations of mutual trust and confidence going beyond the avoidance of dishonesty.^[26] These are all helpful indications of the existence of a relational contract, but they do not provide precise guidance on the contours of this class of contract. In the absence of a clear definition, courts must use a multifactor approach for discerning the probability that a contract is properly classified as a relational contract.

Among the list of factors to be taken into account during the process of classification, however, there is one that appears necessary, even though it is not on its own sufficient to identify a relational contract. This factor is that the terms of the contract use indeterminate descriptions of both the expected performance obligations and the hoped-for outcomes of the transaction. Fraser J. has eloquently described this feature of the bargain between the parties to relational contracts: “The spirits and objectives of their venture may not be capable of being expressed exhaustively in a written contract.”^[27] Incompleteness often occurs in relational contracts for the same reason that indeterminacy is sometimes a feature of longterm contracts: because contingencies and necessary adaptations cannot always be foreseen.^[28] In most long-term contracts, however, the goal is certain, even if the road there is littered with unexpected contingencies. What is distinctive about relational contracts is that even the destination is indeterminate in the sense that the precise outcome or product that may be achieved through cooperation is not defined in advance and can be reconfigured in the light of experience during performance of the contract. Although planning for contingencies may be incomplete as in other long-term contracts, relational contracts embrace a more profound uncertainty about the precise goal or purpose of the transaction. In other words, a necessary feature of the emerging legal category of relational contracts is that they are “incomplete by design.”^[29] As was established above, contracts of employment are also relational contracts in this sense.^[30]

In contracts of employment, the incompleteness of the terms of the contract is partly resolved by the conferral on the employer of a right to control and direct work, with a corresponding obligation placed on employees to obey those instructions. Beyond explicit instructions, however, the contract of employment is unlikely to function successfully unless both parties cooperate to achieve the indeterminate purpose of the contract. Both employer and employees have to adjust and adapt to the changing demands and goals of the productive organization.

In contracts of employment, this need for cooperation is often expressed in law as a duty to perform the contract in good faith. In many common-law jurisdictions, as in civil-law jurisdictions, good faith in performance is a generally accepted standard for all contracts.^[31] A general requirement of cooperation is also often implied into contracts in general. The requirements of good faith and cooperation seem likely to vary according to the context and type of contract concerned. Whereas in most contracts, performance in accordance with the terms of the contract and the avoidance of dishonesty will meet any requirement of good faith, in relational contracts the duties emerging from the standard of good faith are likely to be more extensive and critical to the success of the contract because of its indeterminacy. The standard of good faith amounts to placing an obligation on both parties to support the purpose of the contract and not to undermine its functioning by uncooperative and unfair behavior. In a case concerning a type of joint venture,^[32] drawing on Australian authorities,^[33] Leggatt J pointed to the crucial guide to the meaning of good faith in relational contracts: the common purpose of the parties in entering the transaction. The obligation to perform in good faith can be described as:

an obligation to act honestly and with fidelity to the bargain; an obligation not to act dishonestly and not to act to undermine the bargain entered or the substance of the contractual benefit bargained for; and an obligation to act reasonably and with fair dealing having regard to the interests of the parties (which will, inevitably, at times conflict) and to the provisions, aims and purposes of the contract, objectively ascertained.^[34]

In English law, a similar idea is expressed by the requirement in contracts of employment that neither party should act in a way that is likely to destroy mutual trust and confidence.^[35] This implied term can be invoked against duplicitous behavior,^[36] failure to disclose information,^[37] and highhanded action.^[38] As Lord Nicholls has observed, “The trust and confidence implied term means, in short, that an employer must treat his employees fairly. In his conduct of his business, and in his treatment of his employees, an employer must act responsibly and in good faith.”^[39]

A similar implied obligation of good faith and loyalty to the employer’s interests is placed on the performance obligations of employees.^[40] This implied term is needed for the contract to function efficiently and effectively, for otherwise employees might “work to rule” or “withdraw goodwill,” exercising their discretion to impede rather than promote the interests of the productive organization. These obligations of performance in good faith for both parties are acknowledged to be so essential to achieving the intended outcomes of the contract that it has even been suggested, contrary to orthodox accounts of contract law, that these implied terms should be non-excludable and mandatory.^[41]

These standards of good faith and mutual trust and confidence set boundaries on how the parties should exercise their discretion in performance of the contract. Harsh and unfair treatment by a manager is likely to be regarded as an abuse of power and a breach of the implicit standards expected at work. Similarly, if an employee is lazy and does not cooperate with the rest of the team, this conduct is likely to be regarded by the employer as a breach of the duty to perform the contract in good faith. Once these expectations of cooperation in good faith are dashed, the parties are likely to consider termination of the contract: the employee may feel there has been unfair treatment and the employer will object to any shirking or withdrawal of goodwill. But these requirements of good faith in performance go beyond the exercise of discretion. For example, employees typically expect their employers to cooperate in the sense of providing adequate information and training to perform the job, to require only a reasonable workload within the competence of the employee, and more generally for the employer to treat employees fairly.

In this Part, it has been argued that a broad obligation of good faith is expected from the parties to contracts of employment. This expectation may in part arise from broader moral standards such as an expectation of employees that they should be treated with dignity, not like a disposable machine. But my argument for this obligation of performance in good faith has depended entirely on the claim that in relational contracts, which are indeterminate by design, it is necessary for the successful performance of the contract to supplement the express terms of the agreement not only by some kind of governance structure (in this instance, the subordination of employees to the control of the employer), but also by diffuse obligations of loyalty to the purpose of the transaction. The expectations of cooperation and performance in good faith form part of the customs of productive organizations. Private law has recognized these expectations and customary standards by tools such as the implied term of performance in good faith and other statutory interventions such as protections against unjustified dismissal.

VI Principles of Associational Justice

We turn now to the second distinctive characteristic of contracts of employment highlighted above: the feature that most work is performed as a member of a voluntary association or team within a productive organization. What kinds of moral standards might be discerned in interpersonal relations in this multilateral context of a productive organization?

One way to explore this difference between ordinary commercial contracts and employment is to consider employees’ reactions to colleagues and coworkers who are not doing their jobs properly. The simple model of a contract of employment as a bilateral exchange would suggest that only the employer has an interest and a right to complain about employees slacking off. Yet, I think many colleagues would be critical of other staff who are not doing their jobs properly. They might say that the shirkers are letting down the team, not pulling their weight, undermining the aims of the organization. But what is this moral high ground? What are the principles of justice that are being invoked implicitly within the organization or association? Drawing on both practice and legal regulation as evidence and for insights into the relevant moral obligations of justice in voluntary associations that require cooperation from the whole team for the success of the organization, there seem to me to be at least four moral principles that are frequently invoked in practice: desert, treatment as an equal, protection from unfair exclusion, and a right to participate and exercise voice.

VII Fundamental Rights and Distributive Justice

My argument in this Article has been that to discover adequate and appropriate principles of justice in employment relations, a good starting-point is to consider the explicit and implicit expectations and understandings embedded in the employment relationship itself. Instead of brandishing the abstract ideals of liberal political theories of distributive justice, such as liberty, autonomy, democracy, and equality, it is arguably more fruitful to start the enquiry into justice in work from a close examination of the expectations and implicit understandings of employment relations within productive organizations. This approach draws on social practice and the relevant legal norms, which are generally private law in form, though they may be either legislative instruments or judge-made common-law principles. Where practice appears to observe certain moral norms of justice and those norms are replicated to some extent in the law, there seems a strong case for including those norms in a proposed theory of justice in work.

To some extent, employment is likely to share implicit norms with other kinds of contracts, such as the general principle that the parties should conform to the contractual undertakings. At the core of this Article, however, has been an examination of what are claimed to constitute two distinctive features of contracts of employment in comparison to other economic transactions. Employment is normally a relational contract in which both the performance obligations and the ultimate goals of the contract are indeterminate. As a consequence, the contract needs to be constantly supplemented by the protection of implicit understandings, expectations, and commitments. In law those requirements are generally expressed by the idea of a requirement to perform the contract in good faith, a requirement that applies to both employers and employees. The second distinctive feature of contracts of employment is that they typically function within a voluntary association or firm. It is possible to identify what have been called here principles of associational justice, which mark out contracts of employment from most other types of commercial contract because employment is typically performed within a voluntary association. The key principles of associational justice were suggested to be the principle of desert by reference to contribution, equal respect for members of the organization, protection against unjustifiable exclusion from membership in the organization, and a right to voice for all members of the association. Together, these principles of interpersonal justice for employment provide a distinctive, richer body of norms than those standards that might be typically ascribed to contracts in general. These principles of relational and associational justice can constitute the core of a theory of justice in work.

Nevertheless, interpersonal justice cannot exhaust the scope of principles of justice in work. Some principles of social justice must be permitted to qualify, supplement, or reinforce aspects of the principles of justice derived from interpersonal justice. One example of the imposition of impartial principles of justice is when a distributive goal for society as a whole can be most efficiently and effectively implemented by regulation of employment relations. Examples of such regulation include minimum-wage laws and prohibitions against discrimination against protected groups, such as women, by employers. Another important strand in those impartial principles of distributive justice that must be included in the standards of the workplace concerns international conventions on human rights, including international labor rights. These conventions establish universal baseline standards for employment law, such as a maximum forty-hour working week and the right to a paid holiday. International conventions on human rights also protect freedoms of employees against infringement by employers, such as measures designed to curtail freedom of speech, control aspects of private life, or prevent the manifestation of a religion. Ultimately, the principles of interpersonal justice must give way if they permit unjustifiable interferences with fundamental rights.