Between Authority and Domination: Taming the Managerial Prerogative

Can republican freedom as non-domination be reconciled with personal work relations in capitalist firms? This fundamental question has been central to recent scholarship at the intersection of law and political philosophy, such as Elizabeth Anderson's 'private government' critique. We argue that such a reconciliation is both possible and desirable. It depends upon a range of restrictions on managerial discretion, effective rights of exit for workers, and institutions of contestatory voice. Its achievement would require significant reform of existing labor law regimes in the US, the UK, and Canada. The focus of this article is on the justification and scope of managerial authority. Managers’ 'legitimate economic authority' in firms can be justified by considerations of expertise, coordination, and the broader economic benefits to be achieved through hierarchical organisation. The resulting risks of interpersonal and organizational domination must be mitigated in a variety of ways, including both effective exit options and mandatory labor standards. For the large scope of discretion that remains, the article provides a typology of discretion-constraining norms that range from unfettered discretion through to stringent requirements of affirmative justification to an external court or tribunal; and it proceeds to analyse which sorts of constraints should apply to various managerial decisions. The article concludes with a call to tame, not abolish, the managerial prerogative. Legitimate economic authority is always a concession of the state. Its limits are set by law and democratic decision. The task for neo-republican labour law is to circumscribe legitimate economic authority so that subordination of workers is kept within tolerable limits. This provides the basis for reconciling capitalism and republican freedom in the workplace.