Institutional and Legal Creation of Labor, Prison Edition

Will Wilkinson has a fascinating new post at the Moral Sciences Club, Capitalists, Workers and “Natural” Contributions to Production.  He links to arguments by philosopher Samuel Freeman in Capitalism in the Classical and High Liberal Tradition which, among other things, contrasts labor with owners of factors of production.  Freeman:

There is a genuine naturalistic sense in which workers can be said to contribute their labor toward productive output, as well as a naturalistic sense in which land, raw materials, and real capital make a contribution….

The contribution of owners [of factors of production] is notional when compared to the contribution made by the factors of production they own; it is a manner of speaking dependent upon rights of ownership and control that owners in virtue of legal and other conventional arrangements.


[O]nce we go beyond the natural contribution made by workers’ labor and productive resources other than labor, individuals’ “contribution to” and “responsibility for” the social product are institutionally dependent, and indefinable outside an institutional (and normally legal) context.

Wilkinson responds:

What interests me is the extent to which labor and other factors of production count as “natural” as opposed to “institutionally dependent.” I’m skeptical that there’s a real distinction here. All contributions to production seem to me institutionally dependent in the relevant sense.

By way of adding some theoretical heft to his distinction, Freeman references John Searle’s distinction between brute facts and institutional facts in The Construction of Social RealityRoughly, a brute fact is a fact that is independent of anything anybody thinks about it. An institutional fact is a fact based in certain collective beliefs and intentions. That I am 72″ inches tall is a brute fact. That I am a citizen of the United States of America and the owner of a 1996 Honda Civic are institutional facts. That I am poking at a certain human artifact designed by humans for certain human purposes is a brute fact. That my poking counts as “writing in English” and “blogging” and “economic production” strikes me as a fairly rarefied institutional fact. I just can’t grasp how it is that my labor is a more “natural” contribution to the Big Think enterprise than the owners’ contribution of capital. That my keyboard banging now, as opposed to the keyboard banging I will do in a few minutes on Facebook, counts as labor at all seems to me entirely dependent on an incredibly complex and elaborated system of interlocking institutional facts.

Check it all out.  It fits very well with a side project here, investigating how the notion of “free” labor is itself a legal creation, a fragile victory over feudal forces for which we can thanks union activism, progressive-era assaults on laissez-faire and the New Deal.  And to expand on that, is labor as production a naturalistic fact or an institutional fact? Does it require legal and other conventional arrangements?

Picture any labor task, from making a chair to be sold at market to cleaning up a public space.  Now picture that labor task being done by a prisoner.  Indeed, since replacing public sector workers with prison labor is already happening in Wisconsin and will likely expand in the next few years, it is worth thinking this through.

Now we have a bundle of rights that get assigned to labor – from minimum wage laws to remedies for exposure to hazardous materials.  Assuming that this is a just bundle, should it get accorded to prison labor?  Why or why not?

This is the court case I found most used as the answer to that question, regarding a prisoner who demanded the minimum wage.  Vanskike v. Peters (1992):

Can this prisoner plausibly be said to be “employed” in the relevant sense at all?…But the Bonnette factors fail to capture the true nature of the relationship for essentially they presuppose a free labor situation. Put simply, the DOC’s “control” over Vanskike does not stem from any remunerative relationship or bargained-for exchange of labor for consideration, but from incarceration itself.  The control that the DOC exercises over a prisoner is nearly total, and control over his work is merely incidental to that general control. Indeed, the Thirteenth Amendment’s specific exclusion of prisoner labor supports the idea that a prisoner performing required work for the prison is actually engaged in involuntary servitude, not employment…Prisoners are essentially taken out of the national economy upon incarceration.

Here the court draws a line between those who are in the national economy, those who are capable of being considered for the bundle of rights and recognitions that come with labor, and those who aren’t.  For the Wisconsin example, nothing has changed about the actual work done by the laborer, but in one case the worker is recognized by courts as part of the “economy” and in the other case they are not.

And these aren’t trivial issues.  Our prison population is massive, and prison labor is a major part of it.  In addition to a lack of compensation and unemployment benefits, prison labor is often exposed to dangerous, toxic chemicals without any type of safety equipment or remedies.  In a case where workers were uprooting tree stumps in the freezing cold without gloves, much less formal safety gear, Justice Posner had to remind everyone that “[o]ur prison system is not the gulag.”  This runs down the safety standards, indeed all standards, for “free” labor in the labor force.

There’s already a wave of feminist thought that argues that unpaid labor inside the family, and thus outside the legal boundaries of “the market,” should still get legal recognition as economic labor.  What’s interesting in the prisoner example is this is (sometimes) paid labor, where at the very least workers are selected for specific tasks based on their ability to perform them.  It also takes place inside a market, where those who sell the widget command and influence market prices.  Yet these activities have, through legal institutions, been removed from the proper consideration of the market.  Where do the boundaries get drawn?  It’s an issue for institutions, which is an issue for democracy.

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1 Response to Institutional and Legal Creation of Labor, Prison Edition

  1. Pingback: Institutional and Legal Creation of Labor, Prison Edition | Rortybomb | renekykugodu

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