© 1992 Karen Selick
 From Serfdom to Serfdom in Thirty Generations
An edited version of this article first appeared in the December, 1992 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 From Serfdom to Serfdom in Thirty Generations

Although there are lots of weird political philosophies emerging from under rocks these days, no-one openly advocates a return to feudalism.  Most of us in Western society still pay lip service to our grammar school orthodoxy: that the caste system, in which all of life's opportunities were strictly determined by one's social status, was a bad thing.

The passing of feudalism, and the consequent ability of individuals to improve their fortunes via trade and contract are generally considered good things.

Indeed, English legal historian Sir Henry Maine summed it up in 1861, writing in Ancient Law: "...the movement of the progressive societies has hitherto been a movement from Status to Contract."

Yet an idyllic notion of Status seems to linger persistently in the subconscious minds of some.  Like a security blanket, it's not easily given up. 

While the saying, "Once a serf, always a serf" still evokes knee-jerk expressions of condemnation, the modern-day version, "Once an overpaid worker in a protected industry, always an overpaid worker in a protected industry" is embraced without a trace of embarrassment.

Somewhere along the way, the notion of a job as a contract has fallen into disrepute, replaced by the notion of a job as property--the employee's property, of course.  The ironic part is that the strongest proponents of this concept are people who roost left of centre on the political spectrum, and who would never, ever, even under the most extreme duress, acknowledge the existence of property rights to anything else.  I guess they hate the principle of contract even more.

There are lots of examples of this mindset.  There are the protectionists who oppose free trade because "Canadian jobs" might move to Mexico.  There's the employment equity gang who think that people should be given jobs as compensation for their official victim status (that is, the condition of being female, pigmented, francophone, etc.) rather than because an employer wishes to contract with them. 

There's Bob Rae and the Ontario NDP who propose to outlaw the use of replacement workers during strikes, so that the only choices left to an employer will be to shut down entirely, or give the strikers back "their" jobs at whatever level of pay they choose to demand.  There's pay equity legislation, in which wage levels can be hiked for "women's jobs" by the Pay Equity Commission--a complete outsider to the employee-employer relationship. 

All of these make a mockery of the traditional definition of a contract as a meeting of minds.

And then there's the human rights crowd, who believe that people should be given monetary awards for "losing" a job that nobody had ever contracted with them for in the first place.  My favourite example comes from Saskatchewan.  The owner of a convenience store refused to hire a female applicant for the graveyard shift--11 p.m. to 7 a.m.  The store had previously had two robberies and a sexual assault against a female clerk during those hours.  The owner probably believed he was doing the woman a favour by not hiring her.  She complained of sex discrimination and was awarded $1000 by a Board of Inquiry.

The interesting thing is that the store owner was under no legal obligation to keep the store open throughout the night.  He could have simply decided to close the place at 11 p.m.  How, I wonder, can he be under some obligation to have hired this particular applicant, when he was under no obligation to hire any employee at all? 

Indeed, the more the law interferes with the rights of employers to freely contract with employees, the more employers will simply choose the option of not contracting at all.  This is probably already a factor in Canada's persistently high unemployment rate.  If you keep your ears tuned for this sort of thing, it's easy to collect examples of employers who are desperate to replace employees with machines, substitute casual or contract help for full-time employees, move their operations to a jurisdiction with greater freedom of contract, or simply shut down and pursue "ownership" of a job themselves. 

The political reaction to this trend has been exactly the reverse of what it should be.  Instead of liberalizing employment law, governments try ever harder to straitjacket employers with more onerous regulations.  Employers respond by trying harder to escape, and so on, and so on....

This past July, the task force examining the Ontario Human Rights Commission recommended setting up an umbrella command organization called an Equality Rights Tribunal to adjudicate employment equity, pay equity and human rights cases.  Imagine--a panel of overlords who will have the power to dictate to employers whom they must hire, how much they have to pay, how to run their operations in order to accommodate certain preferred status-holders, and what tribute they will have to pay if they fail to obey.

The movement away from Contract and back to Status will then be running full tilt.  As the late Nobel laureate Friedrich A. Hayek predicted in the title of his best-known book, we will truly be back on The Road to Serfdom.  Will it be any more palatable because employers will be shackled along with their employees, and the seigneurs will be called civil servants?



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