Expropriation, Participation and Weimar



Five months ago, I reposted on this blog a piece from from the magazine Socialist Lawyer, in which I had argued that the defining socialist right is the right to expropriate the holders of capital. The piece has had a mixed response. Some friends have been very enthusiastic about this idea, suggesting that we could use it as an organising concept, and try to found a campaign around the principle of expropriating businesses that destroy the environment, or engage in unusual oppression or exploitation of their workers. I’d like that; there is a potential fit with Occupy and with protests such as Balcombe, and with the trend towards using agitprop trials to highlight the crimes of individual corporations. (Incidentally, if friends would be interested in being part of the team for any future trials of this sort – direct message me, I am very serious about this).

Some other friends (chiefly, but not only, Bill Bowring) have suggested that I misread Marx, and found in him a teleology of ascending strategies of equality, whereas actually he kept his blueprint for the future minimal, preferring to trust in the unfolding process of struggle to provide all the answers. (There is a link to that debate, here). They may or may not be right. For my part, I’ve always felt that Marx had a keener sense of rights (and of morality) than he admitted to himself, I’ll leave that to others to judge, I just feel that they are missing what was at the heart of of my piece, the idea of a right to take.

In this context, I am grateful to Ewan McGaughey, who has just sent me his recent PhD on the history of the idea of Public Participation in Corporate Governance. By “participation” he of course means vastly more than the dreary David Brentism that many Human Resources professionals have in mind, but something much closer to the idea of Workers’ Control.

Two section in particular touch on this discussion. In the first, he goes back to Marx, noting that he and Engels were among the very first people to notice the tendency under capitalism for businesses to split apart ownership and control. (For people who are interested in this part of the discussion, there is of course an incredibly rich Marxist literature on management, in which key authors are Sidney Pollard, Harry Braverman, Michael Burawoy, etc etc).

As I read McGaughey, he is not saying that Marx deeply considered the question of Participation – far from it, for the reasons Bill Bowring alludes to (and here I do agree with Bill) – Marx’s express focus was far more on calling into being a revolutionary army to take on capitalism, rather than supporting even detailed projects for the reform of any aspect of the system.

In a later section, McGaughey describes what happened after the German Revolution of 1918, when successive Socialist administrations tried to implement theories of workplace participation. These examples are important, because when thinking about expropriation I was trying to imagine it as a way of strategising for a political upturn, i.e. towards an idea of how different demands might push forward a movement that was growing. While you could legitimately query the revolutionary faith of the leaders of the 1919-era SPD or USPD, I don’t doubt they were thinking through the same problem and even from a similar perspective of “if they had been here, what would Marx or Engels have done?”

The answer turns out to be as follows: the SPD wrote into the 1919 Weimar Constitution the principle that workers had a right to participate in the country’s entire field of economic development. There followed the Works Council Act, or Betriebsrätegesetz, of 1920 requiring that works councils participate in a host of workplace matters, including in the administration of pensions and housing as well as other company welfare facilities. I can just about visualise the influence of Karl Korsch, and other Red Professors, who had been won over to the ideal, if not the practice, of the workers’ councils.

As well these matters, the 1920 Act also gave the councils other powers, including an equal role in the agreement of common terms and conditions of service, and a role in deciding appeals against dismissal. Employees who were dismissed could appeal to the work council on grounds that they suffered gender, political, military, religious or union based discrimination, if dismissed without any reasons, or if it would cause significant hardship. The council could choose to take up the complaint to arbitration, and if the complaint were found justified compensation, but not yet reinstatement, could be ordered. Finally, where the company had a supervisory board, there was a right for one or two work council representatives to attend as full members.

“Codetermination had been successfully codified”, McGaughey writes, “but its implementation over the Weimar Republic depended on the courts, and the continued strength of the unions to utilise it”. Three processes diminished the effect of this legislation: first, in the broadest possible terms, the defeat of the revolution, and the demise of the economy in conditions of reparations, inflation and unemployment.  Second, the hostility of the ‘Empire Court’ which did all it could to ignore the parts of the Weimar Constitution which protected this settlement. Third, businesses withdrew their co-operation, taking decisions away from the committees on which workers’ delegates were entitled to sit, or reducing their meetings to once or twice a year, or hiving decisions off to sub-committees on which the employer had 100% control.

One critic in his early 30s, the labour lawyer Otto Kahn-Freund accused the courts of adopting, long before Hitler’s victory, a fascist approach of guaranteeing businesses’ right to manage. (And Kahn-Freund was of course to play a significant part 40 years later in the development of the UK’s Employment Tribunal system, but that’s a story for another time).

Participation always meant something less than full control; and of course it was impossible to sustain in an economy where the power of the rich was reasserting itself. But the propertied will not always win, and part of our ability to challenge them will derive from our collective capacity imagine their defeat. I suppose it is this possibility that I really wanted to raise in my original piece. Yes, workers’ representatives should be allowed functions which diminish management’s power to recruit and to dismiss, to relocate a business, etc. yet what I had in mind was more than a couple of trade unionists on a company’s board.

My vision was more like the following: if, for example, a business was to carry out pollution on the scale of Union Carbide, shouldn’t there be a place (a forum more specific than the general “court of public opinion”) where people (its workers, its customers, those who live in the affected area or anyone else) could come together and say “The way you have behaved is so bad that your ownership of the business is forfeit and it will pass, right now, into the hands of everyone who works there”?

3 responses »

  1. Surprised this didn’t get any comments – maybe I wasn’t the only one to put it in the “read later” queue.

    I think it’s certainly true – and significant – that the discourse of human rights has a different content than the superficially similar rights discourse of liberal individualism, whose nature & limitations Marx nailed back in “Jewish Question”. The broader uses of the word ‘rights’ have caused problems for people who write about rights in theoretical (and specifically Hohfeldian) terms – AIUI Hillel Steiner argues that human rights aren’t rights at all, and that rights over private property are the only set of rights which can coherently be universalised, as well as (conveniently enough) being the set of rights which the legal system is founded on. I think Steiner’s is the wrong move – not least because, as Nigel Simmonds has shown, the right to private property can’t in fact be coherently universalised. Certainly a “right to live free from pollution” – or a “right to work” for that matter – is a very different proposition from a “right to grow hedges no higher than 3 metres within the plot described on these title deeds”, but there’s no reason in principle why we shouldn’t treat it as having the same structure. In other words, the question isn’t “why are we referring to these theoretical entitlements with no means of enforcement and no identifiable defendant as rights?”, but “if we take these rights to be genuine rights, can we identify a defendant and propose means of enforcement?” And I think that could be a genuinely radical move.

  2. Simmonds (on Steiner), “The Analytical Foundations of Justice” and Kramer/Simmonds/Steiner, _A Debate over Rights_ – although once you’ve read “TAFJ” there’s no real need to read Steiner’s contribution to the book, which is muddily written & doesn’t really answer Simmonds. Simmonds is basically saying “if you take individual property rights as generalisable, you end up with Quinn v Leathem, which is the wrong answer”. Simmonds isn’t on the Left as far as I can tell, but he has some great sceptical arguments.

    (IANAL, but I’m interested in rights-talk.)

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