Human Rights and Capitalism

Human Rights and Capitalism

A Multidisciplinary Perspective on Globalisation

Corporations, Globalisation and the Law series

Edited by Janet Dine and Andrew Fagan

Human Rights and Capitalism brings together two important facets of the globalisation debate and examines the complex relationship between human rights, property rights and capitalist economies.

Chapter 2: Inflating Consent, Inflating Function, and Inserting Human Rights

Sheldon Leader

Subjects: law - academic, human rights, politics and public policy, human rights


2. Inflating consent, inflating function, and inserting human rights Sheldon Leader We have moved beyond one myth about economic life, but risk coming under the spell of another. The myth that has begun to loosen its grip is that human rights are only appropriate to control the state, and should be kept well away from private economic relations on the ground that in this domain there is no serious imbalance of power calling for regulation. Consent used to play a mystifying role here: entry into relations between employer and employee, or between consumer and many producers, might be formally free, in the sense that the state does not force people into the transaction, but if the costs of not making the agreement are considerable and there are no live options, then the agreement can be said to be materially unfree.1 The myth consisted in inflating the formal quality of consent to cover, and obscure, all unequal power relations lying beyond the state. This is a distortion of which many, if not all, systems that guarantee basic rights are aware of and take measures to counteract. For example, the European Court of Human Rights is ready to hold states responsible under the Convention not just for their abuse of their own power, but also for permitting certain holders of private power, such as employers, also to abuse their position of dominance.2 Many national systems also penetrate civil society with the corpus of basic rights. They legislate for employee...

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