Edited by Matthew W. Finkin and Guy Mundlak
A critical function of labor law around the world is to ensure labor mobility. Every system of labor law places limits on the employer’s ability to impede this mobility. Employees’ promises not to move to, or start, competing businesses are not automatically enforced in any legal system. There are several reasons that such covenants not to compete (‘restrictive covenants’, or ‘noncompetes’) are not automatically enforced. We shall refer to these as labor law values, competition values, and economic growth values. The first two are recognized in nearly every legal system, and economic growth is surely not rejected as a value. In other words, variation among jurisdictions does not reflect lack of agreement on fundamental values. Working men and women have a right to work, to practice their skills and professions. They are free to enter into economic life, to support themselves and their families, to develop services as they are able, and to compete with others. Common law jurisdictions tend to understand this right in this economically liberal sense. Civil law jurisdictions often add an additional understanding of the right of economic participation, often in their constitutions: the right to work is also the right to the social and moral development of the person. People must be free to choose work because work is one of the chief ways in which they develop as mature, responsible, happy and satisfied adults.
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