A Multidisciplinary Perspective on Globalisation
Corporations, Globalisation and the Law series
Edited by Janet Dine and Andrew Fagan
Chapter 2: Inflating Consent, Inflating Function, and Inserting 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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