2 A Marxist approach to R.M.T.

v the
United Kingdom
Robert Knox

1 A Marxist approach

a Historical materialism
Marxism is far more than a simple ‘methodology’ or ‘theory’; instead, it is
bound up with some of the great political transformations of the nineteenth and
twentieth centuries. This close connection between ‘theory’ and ‘politics’ means
that for every ‘Marxist’ position on a given issue, there are a number of other,
conflicting, Marxist positions; this is true for Marxist accounts of human rights.
This being said, Marxist analysis is premised upon a common methodological
and theoretical foundation, sometimes dubbed ‘historical materialism’. The
essence of historical materialism is that social phenomena – law, politics, art,
etc. – cannot be understood ‘by themselves or on the basis of a so-called general
development of the human mind’.1 Rather, they must be rooted in ‘the material
conditions of life’.2 For Marx, these ‘material conditions’ could only be under-
stood through ‘political economy’; as he famously put it:

In the social production of their existence, men inevitably enter into definite
relations, which are independent of their will, namely relations of produc-
tion appropriate to a given stage in the development of their material forces
of production. The totality of these relations of production constitutes the
economic structure of society, the real foundation, on which arises a legal
and political superstructure and to which correspond definite forms of social
consciousness … It is not the consciousness of men that determines their
existence, but their social existence that determines their consciousness.3

Crucially, these ‘definite relations’ are not abstract or neutral; instead, they are
composed of classes – groups of individuals who have distinct relationships to

1 K. Marx, ‘Preface to A Contribution to the Critique of Political’ in R. Tucker (ed), The

Marx-Engels Reader (Norton & Company 1978) 3.
2 ibid.
3 ibid.
14 Robert Knox
the means of production and thus to the creation and appropriation of wealth
in particular societies. In a given mode of production – such as a slave-holding
society, a feudal society, or a capitalist society – ‘the specific economic form, in
which unpaid surplus labour is pumped out of direct producers, determines the
relationship of rulers and ruled’, as such, ‘[i]t is always the direct relationship of
the owners of the conditions of production to the direct producers … which
reveals the innermost secret, the hidden basis of the entire social structure’.4
Classes are constantly engaged in struggle and it is through ‘legal, political, reli-
gious, artistic or philosophic … forms’ that classes would struggle to realise
their diametrically opposed interests.5

b Marxism and human rights

The Marxist lens, then, lends itself to situating human rights law within its
material context. Marxist approaches trace the ways in which human rights law
embeds and articulates the relations of production – and attendant forms of
class struggle – upon which they are built. On a basic level, Marxists track how
the content of human rights reflects the interests of the contending classes of
a given society. At the same time, however, Marxists have always understood
that the ‘ruling ideas are the ideas of the ruling class’.6 Accordingly, they have
attempted to draw attention to the ideological function of the human rights dis-
course, examining how human rights frame particular issues in such a way as to
reproduce the status quo. Finally, on a more abstract level, Marxists have
attempted to understand how the very form of human rights discourse is inter-
twined with – and reproduces – the basic logic of capitalist social relations.

c Class struggle
Although law did not play a direct role in the work of Marx and Engels, it
appeared frequently in their historical accounts. Take, for example, Marx’s
account of ‘primitive accumulation’. Primitive accumulation refers to the pro-
cesses through which pre-capitalist societies were rendered amenable to be trans-
formed into capitalist ones. A crucial aspect of primitive accumulation was the
enclosure of previously common land, by ensuring that populations would not
be able to sustain themselves outside of a wage relationship. In Capital, Marx
traced the ‘bloody legislation’ which made this possible: domestically (in Britain)
through a series of ‘enclosure Acts’,7 which enclosed the commons and out-
lawed vagrancy, and internationally through legal regimes enabling colonial

4 K. Marx, Capital: A Critique of Political Economy, Volume 3 (Penguin 1990) 927.

5 Marx, ‘Preface’ (n 1) 5.
6 Marx and Engels, ‘The German Ideology’ in R. Tucker (ed), The Marx-Engels Reader (Norton
& Company 1978) 172.
7 K. Marx, Capital: A Critique of Political Economy (Penguin 1990).
 A Marxist approach 15
plunder. In this account, then, the ruling class – with its control of the State –
8

was able to instrumentalise the law. In such a vision, the judiciary itself is either
part of the ruling class directly, or materially dependent upon the ruling class
for its continued existence, and accordingly advances the interests of the ruling
class in its judgments.9
Marxists have also drawn attention to the ways in which law has been used by
exploited classes to advance their interests. In Marx’s time, the most prominent
example of this was the struggle to regulate the length of the working day. Fam-
ously, in Capital Marx stated that:

For ‘protection’ against the serpent of their agonies, the workers have to
put their heads together and, as a class, compel the passing of a law, an all-
powerful social barrier by which they can be prevented from selling them-
selves and their families into slavery and death by voluntary contract with
capital. In the place of the pompous catalogue of the ‘inalienable rights of
man’ there steps the modest Magna Carta of the legally limited
working day, which at last makes clear ‘when the time which the worker
sells is ended …’10

Although Marx counterposed the limited working day to ‘pompous’ human

rights, in more contemporary terms, it is often rights that play the role of limit-
ing the ability of capitalists to exploit their workers. In this way, then, we can
understand human rights law as articulating the struggle between classes,
a struggle which can sometimes be won by the oppressed and exploited. In this
vein, Bill Bowring has argued that we must understand international human
rights law as an outcome of great political struggles. For Bowring, the ‘scandal-
ous ruptures with pre-existing modes of social existence which have arisen in the
context of great historical events’ are concretised in international human rights
law, which then embeds their legacy.11 He argues that the three ‘generations’ of
human rights, were each shaped by the great revolutions in which they were
forged. Civil and political rights came about as the struggles around the French
Revolution. Economic, social and cultural rights came about as the struggle of
the workers movement: as most clearly embodied in the Russian Revolution.
The ‘third generation’ of people’s rights was achieved through the successes of
the anti-colonial movement in its struggle against imperialist capitalism. Thus,
far from being an apolitical set of entitlements, human rights are the product of
political and economic struggles, in part codifying the concessions made by the

8 ibid 914–926.
9 A contemporary version of such a Marxist account can be found in J. T. Gathii, ‘Good Gov-
ernance as a Counter Insurgency Agenda to Oppositional and Transformative Social Projects
in International Law’ (1999) 5 Buffalo Human Rights Law Review 107.
10 Marx, Capital (n 7) 416.
11 B. Bowring, The Degradation of the International Legal Order: The Rehabilitation of Law
and the Possibility of Politics (Routledge 2008) 6.
16 Robert Knox
powerful in the face of political insurgencies. The development of socio-economic
rights is a case in point in illustrating this argument.12
Ultimately, however, the class-struggle view is unable to account for what
makes human rights law a specific field of social struggle. As Evgeny Pashukanis
put it, such an approach risks introducing ‘an element of class struggle’ into exist-
ing positivist accounts of law, ultimately resulting in ‘a history of economic forms
with a more or less weak legal colouring’.13 This makes it difficult to trace the
limits of human rights law. If human rights law simply ‘expresses’ class struggle,
then presumably it could express a revolutionary alternative. Yet this ultimately
does not seem correct. Instead, human rights law imposes its own set of limits of
how we think of social struggle; that is to say, human rights law is ideological.

d Ideology
Ideology has been one of the most common rubrics under which Marxists have
addressed the law. In The German Ideology, Marx and Engels argued that ‘in all
ideology men and their circumstances appear upside-down as in a camera
obscura’,14 with ideological thinking treating the contingent and political prod-
uct of human action as timeless. They argued that legal ideology was intrinsically
linked to the ruling class, who were able to couch their specific class dominance
through the general and abstract character of the law.15 In more contemporary
terms, Marxists have understood ideology as referring to the ‘ways in which
meaning serves to establish and sustain relations of domination’.16 Susan Marks
has identified a number of ‘general modes’ of ideology whereby human rights
discourse does this. The first is ‘legitimation’, which describes how authority is
made to seem valid and appropriate. One can immediately see how human
rights law – with its investment in the idea of a neutral State and judiciary –
might contribute to legitimating existing arrangements. This is particularly true
on the international level, where the interventions of powerful capitalist States
have historically been couched in terms of the spreading of human rights and
‘civilisation’.17
Another important mode identified by Marks is that of ‘unification’, whereby
social relations are made to seem coherent and harmonious.18 Human rights law

12 P. O’Connell, ‘On Reconciling Irreconcilables: Neo-Liberal Globalisation and Human

Rights’ (2007) 7 Human Rights Law Review 483.
13 Pashukanis, ‘The General Theory of Law and Marxism’ in P. Beirne and R. Sharlet (eds),
Pashukanis, Selected Writings on Marxism and Law (Academic Press 1980) 42.
14 Marx and Engels, ‘The German Ideology’ (n 6) 154.
15 ibid 187.
16 S. Marks, The Riddle of All Constitutions: International Law, Democracy, and the Critique of
Ideology (Oxford University Press 2003) 10.
17 M. Mutua, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42 Har-
vard International Law Journal 201.
18 Marks, The Riddle (n 16) 20.
 A Marxist approach 17
is precisely premised on a ‘universal’ humanity with a set of common interests.
Indeed, a key promise of human rights law is that it is possible – without funda-
mental change – to reach a situation in which human rights are respected. This
leads logically on to the mode of ‘naturalisation’, whereby social relations are
made to seem natural and unchangeable. Human rights law takes for granted
the existence of a capitalist social system, attempting to remedy issues without
addressing the rootedness of those issues in said system.19
It is this final point that has provided the impetus for many contemporary
criticisms of the ‘ideological’ dimension of human rights. In essence, these criti-
cisms argue that human rights – framed as it is around the abstract rights of
individuals – cannot fully grapple with the systemic political-economic issues
which create contemporary problems. As Tor Krever puts it, human rights law’s
‘focus on individual victims and individual violators of rights places the broader
context of [violations] out of sight, obfuscating the social and political-
economic character’ of the causes of human rights violations.20 This is a ‘false
contingency’, in which events rooted in the structural of global capitalism are
treated ‘as if’ they are the accidental and contingent result of certain bad indi-
viduals, or irrational policies.21 As a result, human rights law is unable to exam-
ine the ‘root causes’ of said rights violations.22 Citing the example of Haiti,
Marks notes that:

Delegates to the Human Rights Council special session highlighted the

urgent need in Haiti for food, water, medical supplies and shelter, and the
inability of the Haitian government to provide these itself. But they too
remained silent on the lending and aid conditions that had forced successive
Haitian governments to cut public infrastructure, scale back the already
limited health service, and drastically reduce the protection given to local
industries.23

For Marks, by ignoring the systemic roots of certain policies, the human rights
movement cannot grasp that ‘the conditions which create vulnerability to
hunger and malnutrition do not exist at least in part because they benefit some
groups of people, even as they massively disadvantage others’.24 In other words,
human rights law tends to obfuscate the fact that some classes benefit from the
existing order.

19 ibid 21.
20 T. Krever, ‘Ending Impunity? Eliding Political Economy in International Criminal Law’ in
U. Mattei and J. D. Haskell (eds), Research Handbook on Political Economy and Law (2015)
313.
21 S. Marks, ‘False Contingency’ (2009) 62 Current Legal Problems 1.
22 S. Marks, ‘Human Rights and Root Causes’ (2011) 74 The Modern Law Review 57.
23 ibid 66.
24 ibid 69.
18 Robert Knox
In this way, Marxists draw attention to the ways in which human rights law
serves the ideological function of recasting social problems in ways that ultim-
ately reinforce capitalist social relations. Human rights law deals with systemic
political issues by casting them as individual violations of abstract rights.
Accordingly, human rights violations do not call the whole system into question.
This helps to depoliticise resistance to capitalism, and indeed channels it into
a language of individualism which helps to reinforce capitalism’s continued
existence.25

e Human rights and capitalism

If human rights law is ultimately ideological, we might want to ask why this is
the case. Why does the language of human rights tend to recast systematic
issues as individualised situations that are abstracted from their broader context?
The Marxist answer to this has been to locate the emergence of ‘human rights’
within a specific historical context; demonstrating the close connections between
‘human rights’ and the rise of capitalism. Such an analysis was most prominent
in Marx’s early text On the Jewish Question. Here, Marx drew a distinction
between ‘modern (capitalist) societies and feudal societies’. In feudal societies,
civil society had a ‘directly political character’ since economic forms – produc-
tion, consumption etc. – were regulated through fixed custom and status, thus
a peasant would produce to fulfil a quota for a lord and subsist on what
remained.
In capitalist societies, such conditions no longer obtain, since production is
carried out for profit. Accordingly, in these societies, there is a split between
‘political society’ – where humans exist communally – and ‘civil society’ – where
an individual ‘acts simply as a private individual’.26 Crucially, in such
a situation – with civil society composed of individuals – something needed to
regulate their relations apart from fixed custom status; it was in this context that
the law stepped in:

The formation of the political state, and the dissolution of civil society into
independent individuals whose relations by law, as the relations between
men in the corporations and guilds were regulated by privilege, are accom-
plished by one and the same act.27

For Marx, given this close connection between the rights of man and the emer-
gence of civil society, the rights of man – i.e. human rights – ‘are simply the

25 B. Rajagopal, International Law from Below: Development, Social Movements, and Third
World Resistance (Cambridge University Press 2003).
26 K. Marx, ‘On the Jewish Question’ in R. Tucker (ed), The Marx-Engels Reader (Norton &
Company 1978) 34.
27 ibid 45–46.
 A Marxist approach 19
rights of a member of civil society, that is of egoistic man, of man separate from
other men and from the community’.28 Here, the liberty spoken of is ‘[t]he
right of the circumscribed individual, withdrawn into himself’29 and the equality
denotes that ‘every man is equally regarded as a self-sufficient monad’.30 In this
way, then, Marx argues that the individualism of ‘human rights’ is fundamen-
tally linked with private property. Marx’s insight roots the abstract universalism
of human rights law in the political-economic circumstances that enabled its
rise. This insight formed the bedrock of later structural accounts of the rela-
tionship between (human rights) law and capitalism. In particular, the com-
modity-form theory of law – as pioneered by the Bolshevik legal theorist
Evgeny Pashukanis – drew close connections between the basic logic of capital-
ism and what he called the ‘legal form’.31
Pashukanis argued that in order to understand the law, it is necessary to mark
out what differentiates it from other types of norms that govern social life.
For him, the only historical materialist approach to this question was the
insight that ‘under certain conditions the regulation of social relationships
assumes a legal character’.32 A Marxist theory of law needed to unpack these
specific conditions and the corresponding specifically legal character, or ‘legal
form’. Following Marx, Pashukanis argues that a distinctly legal relationship
first arises in the context of commodity exchange. When commodities are
exchanged, it is necessary that each party to the exchange recognise the other
as capable of owning and exchanging property. In this sense, mutual recogni-
tion is at the heart of that exchange, with each owner seeing the other as
their equal in an abstract and formal sense. This precludes the idea that any
dispute between the parties to an exchange can be concluded on the basis of
their status or social position. Accordingly, a form of social regulation is
required that can resolve disputes whilst also respecting the abstract equality
of the participants.
This is the legal form: a type of social regulation that inheres between
abstract, formally equal subjects. Prior to capitalism, commodity exchange
exists only at the margins of social life and law accordingly exists in isolated
pockets, intertwined with other forms of social regulation. As capitalist social
relations supersede older forms, law comes to dominate. In particular, capital-
ism, as a system based on the exploitation of wage labour, creates more and
more workers who ‘own’ their labour power. With ‘full development of
bourgeois relations’ commodity exchange is less concentrated in specific
exchanges and activities – with labour becoming more and more ‘abstract’.
In this way:

28 ibid 42.
29 ibid.
30 ibid.
31 Pashukanis, ‘The General Theory’ (n 13).
32 ibid 58.
20 Robert Knox
The increasing division of labour, the expanding social relationships and the
development of exchange deriving therefrom, make exchange-value an eco-
nomic category, i.e. the embodiment of social production relationships
which stand above the individual. For this it is necessary that separate and
random acts of exchange turn into a broad systematic circulation of com-
modities. At this stage of development, value is torn from arbitrary assess-
ment, loses its character as a phenomenon of the individual psyche and
assumes an objective economic significance. Similarly, real conditions are
necessary for man to be transformed from a zoological being into an
abstract and impersonal subject of law, into a juridic person.33

Under these conditions, Pashukanis argues, ‘the capacity to have a right in gen-
eral is separated from specific legal claims’.34 It is only in such conditions that
the ‘human’ of ‘human rights’ – the universal, abstract human equal to all
others – can emerge. This ‘legal subject is the abstract commodity owner ele-
vated to the heavens’.35 On Pashukanis’ account, ‘[i]ndustrial capitalism, the
Declaration of the Rights of Man and the Citizen, Ricardo’s political economy,
and the system of terms of incarceration in prison … are phenomena of the
same historical period’.36 The abstract, depoliticising character of human rights
is rooted in the logic of the legal form, which itself mirrors the logic of
capitalism.

2 R.M.T. v the United Kingdom

In R.M.T. v the United Kingdom, the National Union of Rail, Maritime and
Transport Workers (RMT) brought a claim against the UK to the European
Court of Human Rights concerning the right to engage in ‘secondary’ or ‘sym-
pathy’ strike action.37 The facts of the case concerned RMT members who had
worked for ‘Fastline Limited’, a railway maintenance company. Fastline was part
of a group of companies called ‘Jarvis Plc’, and worked closely with another
member of the group called Jarvis Rail Limited, a rail engineering firm. In
2007, Fastline moved 20 of its employees to a different company, Hydrex
Equipment Limited. Under the Transfer of Undertakings (Protection of
Employment) Regulations (2006), the terms and conditions of their original
contracts were preserved, at significantly higher levels than other workers in
Hydrex. In 2009, Hydrex management sought to reduce the wages of the 20
employees who voted in favour of a strike. The strike action ultimately proved

33 ibid 77.
34 ibid 79.
35 ibid 81.
36 ibid 120.
37 National Union of Rail, Maritime and Transport Workers v the United Kingdom, no.
31045/10, ECHR 2014.
 A Marxist approach 21
ineffective. According to the RMT, this was due to the small number of union-
ised workers in Hydrex. The RMT argued that if Jarvis workers had been able
to go on strike in sympathy or solidarity with the Hydrex workers, the strike
action would have proved more effective.
There is no ‘right to strike’ in UK law. Industrial action is regulated through
private and statutory law. Striking workers will attract legal liability for breach of
contract and the tort of occasioning a breach of contract. In the former case,
a breach of contract would enable an employer to terminate the employment of
striking workers and in the latter case striking workers – and their trade
unions – can be sued for damages.38 Strike action is, however, protected from
liability through statute, specifically through ‘the Golden Formula’. Under this
formula – created in the 1870s under the pressure of the labour movement –
industrial action will not attract liability insofar as it is ‘in contemplation or fur-
therance of a trade dispute’.39 Historically, there have been struggles over what
precisely counts as ‘contemplation or furtherance of a trade dispute’. In the
post-War period, it was read broadly by the judiciary, and included the right to
take secondary action, i.e. action against employers who were not directly party
to a dispute.40 During the 1980s, under the Thatcher government, the scope of
a ‘trade dispute’ was narrowed through a series of legislative interventions.41
The Employment Act 1980 explicitly removed secondary action from protec-
tion, and this remains in force. As secondary action, a strike by Jarvis Group
workers in solidarity with Hydrex workers would not be protected. This would
enable a judge to issue an interlocutory injunction to prevent the action. The
RMT argued that this was a breach of their Article 11 right to freedom of
association.
The relationship between Article 11 and trade union activity is complicated.
Under Article 11 ‘[e]veryone has the right … to form and to join trade unions
for the protection of his interests’ subject to restrictions

prescribed by law and … necessary in a democratic society in the interests

of national security or public safety, for the prevention of disorder or crime,
for the protection of health or morals or for the protection of the rights
and freedoms of others.

38 R. Lewis, ‘The Historical Development of Labour Law’ (1976) 14 British Journal of Indus-
trial Relations 1.
39 D. Brodie, A History of British Labour Law, 1867–1945 (Hart 2003) 1–15.
40 The Trade Disputes Act 1906 initially established protection from tortious liability for indus-
trial action ‘in furtherance of a trade dispute’, including secondary action. The Trade Disputes
and Trade Unions Act 1927, introduced by the Conservative government in the wake of the
1926 General Strike, narrowed the purview of Secondary Action, but this was repealed by
the Trade Disputes and Trade Unions Act 1946, which restored the 1906 Act and served as
the framework for the post-War consensus.
41 C. Howell, Trade Unions and the State: The Construction of Industrial Relations Institutions
in Britain, 1890–2000 (Princeton University Press 2005) 149.
22 Robert Knox
As the ECtHR put it in ASLEF v the United Kingdom, Article 11 is primarily
about protecting the ‘individual against arbitrary interference by public
authorities’.42 On this basis, historically, the ECtHR often adopted decisions
contrary to the positions of trade unions. In particular, in the cases of Young,
James and Webster v the United Kingdom43 and Sørensen & Rasmussen v
Denmark,44 the Court held that Article 11 included a ‘negative’ right to not be
a member of a trade union. Accordingly, they ruled that closed-shop agree-
ments – under which all workers had to be members of a particular trade
union – were contrary to Article 11.
However, another line of case law suggests a wider sense of trade union
rights. In Wilson and Palmer v the United Kingdom the Court ruled that the
words ‘for the protection of his interests’ in Article 11(2), implied a wider
set of rights than simply joining a trade union. In particular, this meant that
a ‘trade union must thus be free to strive for the protection of its members’
interests’.45 Although the court denied a right to collective bargaining, ‘it
must be possible for a trade union … to take steps including … organising
industrial action, with a view to persuading the employer to enter into col-
lective bargaining’.46 In Demir and Baykara v Turkey, the Court went fur-
ther, stating that ‘the right to bargain collectively with the employer has, in
principle, become one of the essential elements of … Article 11’.47 Import-
antly, the Court also found that a State would have only a limited margin of
appreciation in such matters.48 It was this line of case law on which the
RMT relied, particularly on the narrow margin of appreciation. Essentially,
their claim was that the ban on secondary action prevented the RMT from
being able to pursue its members’ interests and was an infringement on the
ability to engage in collective bargaining. The RMT pointed out that a total
prohibition on secondary action was an extreme position, departing from
European consensus.
In contrast, the UK government argued that secondary action was not an
essential element of Article 11. Accordingly, it fell wholly within the margin of
appreciation. Furthermore, they argued that whilst Article 11 allows for a right
to strike, this can be restricted according to Article 11(2). They argued that sec-
ondary action would impinge the rights of individuals not party to the dispute

42 Associated Society of Locomotive Engineers & Firemen (ASLEF) v the United Kingdom, no.
11002/05, 27 February 2007 [37].
43 Young, James and Webster v the United Kingdom, 13 August 1981, Series A no. 44.
44 Sørensen and Rasmussen v Denmark, nos. 52562/99 and 52620/99, ECHR 2006-I.
45 Wilson, National Union of Journalists and Others v the United Kingdom, nos. 30668/96,
30671/96 and 30678/96, ECHR 2002-V [ 42].
46 ibid [46].
47 Demir and Baykara v Turkey, no. 34503/97, 12 November 2008 [154].
48 ibid [119].
 A Marxist approach 23
and could imperil economic recovery; in the latter case, the government also
argued that the restrictions had come about because of the disruptive effect of
secondary strikes in the 1970s.
The Court sided with the government, arguing that the ban did not breach
Article 11 and accepting much of its reasoning. The Court noted

that the applicant in fact exercised two of the elements of freedom of asso-
ciation that have been identified as essential, namely the right for a trade
union to seek to persuade the employer to hear what it has to say on behalf
of its members, and the right to engage in collective bargaining.49

The Court went on to state – somewhat dismissively – that ‘the right to col-
lective bargaining has not been interpreted as including a “right” to a collective
agreement … [n]or does the right to strike imply a right to prevail’.50 Most
importantly, the Court affirmed that the ban on secondary action had the ‘legit-
imate aim of protecting the rights and freedoms of others’. The Court stressed
that secondary action could ‘cause broad disruption within the economy
and … affect the delivery of services to the public’.51 In so doing, it noted that
the 1980 Employment Act had been designed to ‘strike a new balance in indus-
trial relations, in the interests of the broader economy’.52
The Court further argued that in the case of secondary action, a State would
have a much wider margin of appreciation. On the basis of the wider margin of
appreciation, the Court accepted that the UK government had banned second-
ary action to ‘rebalance’ the economy as part of its ‘social and economic
strategy’.53 To these two arguments, the Court added a final consideration,
namely that there was a ‘democratic consensus’ in the UK for the banning of
secondary action. The Court ultimately concluded that the ban on secondary
action, whilst at one ‘extreme’ of the European consensus, was nonetheless
a proportionate interference with Article 11.

3 A Marxist reading of R.M.T. v the United Kingdom

a Labour and capital

How might the Marxist tradition make sense of R.M.T. v UK? The overarching
objective of a Marxist approach to a case is to set it within its material context,
and understand how the social relations of capitalism shape the arguments at
play. However, this determination occurs on a whole host of different levels: in

49 R.M.T. v UK (n 37) [85].

50 ibid.
51 ibid [82].
52 ibid [89].
53 ibid [89].
24 Robert Knox
particular through (class) struggles around the content of the law; through the
ideological dimensions of legal reasoning, and – ultimately – though the struc-
tural limits imposed by the relationship between human rights law and
capitalism.
In order to understand how this analysis can be concretely deployed in the
case before us, it is first necessary to understand how Marx understood the rela-
tionship between labour and capital under capitalism specifically. In Capital,
Marx argued that every individual commodity was composed of a ‘use value’ and
‘exchange value’. Use value, refers to the ability of a commodity to satisfy human
wants and needs. For Marx, this could not be the distinguishing feature that
marked out commodities, since things that are not commodities can also fulfil
needs. Instead, he argued, what distinguished a commodity was its ability to be
bought and sold. If every commodity can be exchanged, then that means that
value of each commodity must be ‘equal to a third thing’, to which they are all
reducible.54 This is exchange value or ‘value’, usually represented in the form of
money. However, Marx’s theory left him with a quandary: if every commodity
could be defined in relation to the other, how was it possible to make a profit?
It was here that Marx hit upon labour. He argued that if value was common
to all commodities, it must express some common substance. The only candi-
date for such a substance is ‘labour’.55 In this way, the value of a commodity
would be determined by the amount of labour embodied with it. Crucially, since
value is a social and not natural property it is not determined by how much
‘actual’ labour is embodied a particular commodity; rather, value is determined by
the ‘socially necessary’ amount, that is to say the minimum amount of ‘abstract’
labour needed to produce a particular commodity.56 It was this that provided
Marx with the key to profit. Human labour, or more particularly the human cap-
acity to labour (which Marx called ‘labour-power’), is also a commodity. Since
workers do not own the means of production, they are forced to go to others
who do own these means of production: capitalists. In exchange for the wage,
the capitalist will own everything produced by the worker.
Because workers exchange not the results of their labour, but labour-power,
the value produced during the working day can exceed wages. The value of
labour-power (i.e. wages) is not based on what it produces, but rather how
much it costs to reproduce the labourer. Workers are paid a wage that will be
sufficient to continue to ‘exist’ – the limits of which will be determined by fac-
tors such as the cost of food, housing etc. as well as social struggles over wage-
levels57 – but produce more value than this within the labour process.58 This is
‘surplus value’.

54 Marx, Capital (n 7) 127.

55 K. Marx, Wages, Price and Profit (Routledge 1975) 30.
56 Marx, Capital (n 7) 129.
57 Marx, Capital (n 7) 71–76
58 Marx, Capital (n 7) 270–280.
 A Marxist approach 25
Although Marx’s political economy was a more complex beast than this, this
basic sketch has important consequences for thinking about the relationship
between classes under capitalism. First, there is a basic antagonism between
workers and capitalists, since the latter depend on the exploitation of the former
to generate profits. Whilst their interests can and do align in the short term, in
the medium to long term, it is always in the interests of capitalists to reduce the
wages and bargaining power of workers. As a consequence, workers have a long
term interest in restraining capitalists and capitalism. Second, an individual capit-
alist will always be more powerful than an individual worker, since they control
the means of production. This leads on to a third and final logical conclusion:
namely, that workers have a collective interest in banding together in order to
challenge capitalists, both on the level of negotiation and by challenging the
very terms of capitalism. Since capitalists will always seek to maximise their
profits, the ultimate interest of workers is to abolish capitalism altogether.
Although the labour movement has not shared these insights in their entirety,
some version of them has almost invariably animated ideas of trade unionism. In
particular, the very idea of labour law as a distinct legal field is premised upon
the inequality of bargaining power between employer and worker, and the solidarity
that flows from this inequality.59

b Class struggle, imperialism and the law

Clearly, the struggles described above come to the fore in this case. In essence, the
case concerns the relationship between labour and capital in British capitalism, and
the role that the State plays in mediating their struggle. First, there is a conflict
between one set of employers, Hydrex, and a collective organisation of workers,
the RMT. Alongside this are the interests of another set of employers – Jarvis Plc. –
which would be undermined through secondary action. Second, the British State
intervened on behalf of capital, in order to restrain worker militancy. Finally, the
ECtHR declined to restrain the British State and capital as against the working class
in this instance. What we have here is a clear example of the law allowing the rule
class to pursue its interests in the class struggle.
Beyond these immediate – and important – class interests, we can detect fur-
ther complexities. The survey of the ECtHR’s case law above indicates that the
European working class has achieved a number of victories using Article 11.
Thus, in cases like Wilson, the ECtHR recognised that Article 11 encompassed
the right to strike. And, of course, in Demir and Bakayra the Court seemed to
rule quite strongly in favour of trade union action.
What might account for the difference between Demir and Bakayra and R.M.T.?
One obvious difference is the relative positions of Turkey and the United Kingdom.

59 V. Kumar, ‘Rethinking the Convergence of Human Rights and Labour Rights in Inter-
national Law: Depoliticisation and Excess’ in R. Buchanan and P. Zumbansen (eds), Law in
Transition: Human Rights, Development and Transitional Justice (Hart 2014) 127.
26 Robert Knox
In terms of the global capitalist order, the United Kingdom is by far the more
advanced capitalist power. Historically speaking, it was one of the first capitalist
societies, and constructed a global capitalist empire.60 In so doing, it also played
a key role in shaping the structures and processes of international law. Whilst the
United Kingdom is much reduced from those days, it nonetheless remains one of
the most advanced capitalist powers, and continues to be an imperial presence
throughout the globe.61 By contrast, Turkey is – at best – a subordinate imperial
power, that was integrated (relatively) late into the global capitalist order on
a racialised basis.62 On this reading, we can map the level of surveillance that the
court is willing to exercise over domestic arrangements onto the relative positions
that States occupy within global capitalism. Whilst the Court is therefore willing to
side with the Turkish working class, it is less willing to do so in the face of a more
advanced capitalist State.
Alongside this, we can invert the Court’s own reasoning in the case itself.
The Court argued that the R.M.T. case could be distinguished from Demir and
Bakayra on the basis that secondary action could not be conceptualised as ‘core’
to Article 11. By contrast, Marx’s analysis shows us that the prospect of workers
banding together is at the core of the conception of the workers’ movement. In
this sense, then, secondary action is much more threatening to the status quo,
hence the Court’s willingness to uphold a prohibition on secondary action.63

c Ideology and collective subjectivity

Ultimately, however, an account focusing purely on how class struggle shapes
the content of the law is not a convincing account of this case. Whilst the Court
is – for various reasons – invested in the status quo, we also know that class
struggle is not expressed through the law in an unmediated way. In particular,
although we know that judges themselves are drawn from particular class
strata,64 it cannot be said that they simply choose rules in a way that reflects
their class interests.
That being said, it is also clear that the way in which the Court conceptual-
ised the right to strike, and the right to collective bargaining, was one that
served to disempower the trade union movement and – ultimately – buttress the

60 PJ. Cain and AG. Hopkins, ‘Gentlemanly Capitalism and British Expansion Overseas II: New
Imperialism, 1850–1945’ (1987) 40 The Economic History Review 1.
61 T. Norfield, The City: London and the Global Power of Finance (Verso 2016).
62 R. Knox, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4 London
Review of International Law 81.
63 J. Youngdahl, ‘Solidarity First: Labor Rights Are Not the Same as Human Rights’ (2009)
New Labor Forum 18, 31.
64 See J. A. G. Griffith, The Politics of the Judiciary (Manchester University Press 1977) for the
seminal account of this in the British context, on the ECHR see E. Voeten, ‘The Impartiality
of International Judges: Evidence from the European Court of Human Rights’ (2008) 102
American Political Science Review 417, 418–423.
 A Marxist approach 27
status quo. In this way, we might interpret the judgment through the lens of
ideology, insofar as the framework that the Court used to understand trade
union activity frames that activity in ways that are ultimately compatible with
the maintenance of capitalist social relations. We can see this most clearly in
examining how the Court has conceptualised trade unions through the lens of
Article 11. It is crucial to note that under the Convention, trade unions are not
accorded any special or particular status. Rather, the Convention subsumes trade
union activity underneath a more general ‘freedom of association’ possessed by
individuals. This conception is crucial in casting the role of trade unions in
a way that is compatible with capitalist social relations.
In ‘The Modern Prince’, Antonio Gramsci formulated a theory of the collect-
ive organisation of classes. For Gramsci, when understanding the organisation of
class struggle, it was important to distinguish between different levels of ‘homo-
geneity, self-awareness, and organisation’.65 Gramsci specifically distinguished
between three conceptions. The first of these is what he called the ‘economic-
corporate’ level. On this level, ‘members of a professional group’ – and specific
workplaces – understand that they share a set of common interests and must
organise to defend those interests.66 The second level is when ‘consciousness is
reached of the solidarity of interests among all the members of a social class’.67
This is what Lenin dubbed ‘trade union consciousness’,68 whereby the members
of a particular class understand their common position in the mode of produc-
tion and unite to fight their own interests.69 The third and final level is that
which Gramsci dubbed ‘hegemonic’: here, a social group realises that its inter-
ests go beyond their economic class and seek to construct a wider political pro-
ject that encompasses ‘the interests of other subordinate groups too’.70
Each of these modes of organisation corresponds to a particular type of polit-
ical engagement. The economic corporate level is compatible with the mainten-
ance of capitalism. It entails workers in a given workplace – or sector – banding
together to gain higher wages or better working conditions, without challenging
the structures of capitalism. By contrast, trade union consciousness involves
moving beyond this and posing ‘the problem of the State’.71 By understanding
the working class as a coherent social grouping with a set of common interests,
it opens up the possibility that the political and economic structures need to be
transformed in order to advance those interests. Such a conception does not
necessarily fundamentally challenge those structures, but can involve quite wide
reaching reforms. The social democratic welfare-States of the twentieth century

65 A. Gramsci, Selections from the Prison Notebooks (Lawrence & Wishart 1971) 181.
66 ibid.
67 ibid.
68 V. I. Lenin, What Is to Be Done? Burning Questions of Our Movement (Foreign Languages
Press 1973).
69 Gramsci, Selections (n 65) 181.
70 ibid.
71 ibid.
28 Robert Knox
were the most obvious outcome of such a form of collective organisation. The
final, hegemonic, level is one which fundamentally challenges the prevailing
mode of production: here, the working class recognises that its interests are fun-
damentally opposed to capitalism and seeks to construct a political coalition that
will overthrow capitalist social relations.
During the history of the trade union movement, all three of these concep-
tions have been active. The first conception has been associated with a narrow,
conservative trade unionism, the second with social democratic trade unionism,
and the third with communist or revolutionary trade unionism. Although the
first conception can threaten specific capitalists, it does not threaten the system
as a whole. By contrast, the second and third conceptions pose structural chal-
lenges to capitalism. Generally, the second conception of trade unionism has
only been permitted in order to forestall deeper social change.72
Crucially, the latter two conceptions of organisation are collective in nature.
They understand trade unions as specific collective organisations based on the
solidarity between different members of certain social groups. This is in marked
opposition to how the ECHR has conceptualised trade unions. This becomes
particularly clear when we examine the text of Article 11:

Everyone has the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form and to join trade unions
for the protection of his interests.

In light of Gramsci’s discussion of the different modes of collective organisation,

there are two points of note. The first is that the ECHR’s conception of the
trade union is a fundamentally individualistic one. The ‘right’ to form a trade
union and take industrial action is rooted in an individual’s right to free associ-
ation. Specifically, trade unions are understood as vessels for the protection of
the interests of individuals. Second, and as a consequence of this individualism,
trade unions are abstracted from their material context. Under Article 11 there
is nothing distinctive or specific about trade unions; rather, they are understood
as simply any other civil society organisation that an individual might join to
promote his or her interests. There is no sense of the special role that trade
unions might be called upon to play in a capitalist society, or that they might be
attached to a wider political project for the contestation of capitalist social
relations.
Thus, irrespective of their subjective intentions, or particular class positions,
judges in the ECHR have understood trade unions through a lens which renders
them fundamentally amenable to the preservation of capitalism. Trade unions are
understood as civil society collectives that enable their members to pursue and
maximise their individual interests, and so are at best ‘economic-corporate’

72 W. Streeck, Buying Time: The Delayed Crisis of Democratic Capitalism (2nd Revised edition,
Verso 2017).
 A Marxist approach 29
bodies. This particular lens undergirds how the Court understood secondary
action in R.M.T. v UK. The Court – somewhat patronisingly – stated that ‘the
applicant has adduced cogent arguments of trade union solidarity’, but that these
ultimately were not convincing because the key role of a trade union was simply
to protect the interests of its individual members. In such a conception, ‘solidar-
ity’ can only ever be an ancillary function of a trade union.

d Depoliticising the strike

The individualistic and abstract way in which the Court conceptualises trade
unions also means that it depoliticises the issues at play. What is ultimately at
issue in R.M.T. v UK is a matter of class conflict. There is a direct conflict
between Hydrex – which aims to maximise its profits through exploiting its
workforce – and the RMT, which seeks to build the power of its members in
the workplace. At the same time, this class conflict is also clearly fought out
at the level of the British State over the British legal system – as laws regulating
the ability of trade unions to strike will have a crucial effect on the power of the
working class.
As such, R.M.T. v UK involves profound political-economic questions of
power and distribution. Yet, the ECtHR is barely able to touch upon these
issues, recasting the conflict as a clash of rights. This can very clearly be seen in
the Court’s decision – raised in R.M.T. v UK – in the case of UNISON v the
United Kingdom. In that case, in which an application by the trade union
UNISON was ruled inadmissible, the Court argued that a restriction on the
right to strike could fall under Article 11(2) insofar as that restriction was
designed to protect the rights of employers. Specifically, the Court argued that:

[T]he employer UCLH could claim that its ability to carry out its functions
effectively, including the securing of contracts with other bodies, might be
adversely affected by the actions of the applicant and accordingly the meas-
ures taken to prevent the strike concerned the rights of others, namely
those of UCLH.73

The RMT invited the Court to reconsider this case, arguing that – in the light
of subsequent case law – the very point of a strike was to inconvenience an
employer and, as such, the rights of the employer could not protected under
Article 11(2). The Court avoided directly addressing the question, instead dis-
tinguishing the case on the basis that it concerned secondary action, which:

[H]as the potential to impinge upon the rights of persons not party to the
industrial dispute, to cause broad disruption within the economy and to
affect the delivery of services to the public. Accordingly, the Court is

73 UNISON v the United Kingdom (Dec.), no. 53574/99, ECHR 2002-I.

30 Robert Knox
satisfied that in banning secondary action, Parliament pursued the legitimate
aim of protecting the rights and freedoms of others, not limited to the
employer side in an industrial dispute.74

Crucially, although the Court did not endorse the precise reasoning of
UNISON, it continued to conceptualise industrial action not as a political-
economic phenomenon, but as a clash of rights. The RMT’s right to take indus-
trial action was in conflict with the rights of employers not party to the dispute,
and the wider rights of the public to receive essential services. Accordingly, the
court was able to depoliticise the conflict, and remove it from its wider context.
By re-framing the issue as simply a clash of abstract ‘rights’, the Court was
able to obscure the politics of the legal framework in the case and the way in
which actors in the dispute were consciously deploying them as a tactic in class
conflict. In particular, a common tactic of employers to reduce the bargaining
power of their employees is to reduce the size of their workforce, and fragment
different parts of the production process.75 This was very evidently at play in the
case of the transfer of the RMT workers to Hydrex, who – given their smaller
numbers – would struggle to organise and improve their working conditions in
any future trade union struggles. The RMT attempted to raise such issues
through the rubric of efficacy – stating that it was unable to effectively actualise
its right to strike owing to the small size of the group of workers concerned.
But the court, focusing on the clash of rights and not on the political-economic
tactics of class conflict, stated that the right to strike does not ‘imply a right to
prevail’.
More importantly, by re-framing trade union action as a ‘clash of rights’, the
Court also advances claims about the wider effect and role of strikes. In the
Court’s telling, the RMT is simply a body that exists to represent its members’
individual interests. In such a conception, insofar as the RMT exercises its rights
these will come into conflict with the rights of the wider public, since it will
‘disrupt the economy’ and impact on the delivery of public services.
This enables the Court to gloss over the contested political-economic effect
of industrial action. Once we situate them within their wider political-economic
context, trade union actions cannot simply be seen as ‘disruptive’. First, on
a very direct level, trade unions, particularly those in the public sector, often
argue that their industrial action is taken for reasons of safety and quality. They
seek to take action in order to protect the public from the effects of cost-
cutting. Second, trade union action – particularly solidarity action – can
strengthen the position of the working class as a whole by demonstrating the
power of collective action. Finally, trade unions are not just vehicles to represent
their members’ interests. In both a historical and contemporary sense they are
part of a wider labour movement that seeks to transform – and sometimes

74 R.M.T. v UK (n 37) [82].

75 H. Braverman, Labor and Monopoly Capital (2nd edition, Monthly Review Press 1974).
 A Marxist approach 31
overturn – capitalist social relations. Victory in industrial action helps strengthen
that movement, and so – again – benefit the wider working class. All of this sug-
gests that we cannot simply understand – as the Court does – industrial action
as disrupting people’s lives.
However, the Court is incapable of understanding any wider social benefits
that might result from industrial action. Since the Court re-casts issues of class
conflicts as clashes of rights, it is unable to examine the broader class conse-
quences of strike action. In the Court’s understanding of the world, capitalists
and workers are not understood as members of classes, but rather are collapsed
into rights-holders with a set of abstract and general rights. These rights can
and will be violated by industrial action. It then singles out specific groups of
workers taking action as exercising their ‘rights’ as against these rights-holders.
The issue is then balancing these two sets of abstract clashing rights. Here,
there is no room for the idea that industrial action might – because of the simi-
lar class position of those taking such action and the majority of society – have
a positive transformative effect. In this depoliticised context, industrial action
can only be a bad thing – a disruption and prima facie violation of rights –
which might be justified as an exercise of individual rights.

e Depoliticising the law

Perhaps, the ultimate expression of this depoliticisation can be found in the way
in which the Court recounts the development of British labour law. According
to the Court, the Employment Act 1980 was designed to ‘strike a new balance
in industrial relations, in the interests of the broader economy, by curbing what
was a very broad right to take secondary action’.76 Ten years later, the ‘Govern-
ment of the day considered that even in its more limited form secondary action
posed a risk to the economy and to inward investment in the country’s eco-
nomic activity’,77 leading it to withdraw protection from even limited secondary
action. Since this ban had remained for ‘over twenty years’, there was ‘a demo-
cratic consensus in support of it, and an acceptance of the reasons for it, which
span a broad spectrum of political opinion’.78
The story the Court tells is very much an abstract and apolitical one. Essen-
tially, the ‘economy’ figures as a technical domain, in which a neutral – and
technocratic – government intervenes. Viewed in this light, the changes in
labour law are simple apolitical readjustments in order to achieve growth.79
Whilst the Court notes that ‘assessment was sharply contested at the time by the

76 R.M.T. v UK (n 37) [89].

77 ibid [89].
78 ibid [99].
79 For an excellent historical study of how the ILO depoliticised the relationship between class
and State in the context of 1930s Egypt, see Taha, ‘Reading “Class” in International Law:
The Labor Question in Interwar Egypt’ (2016) 25 Social & Legal Studies 567.
32 Robert Knox
opposition in Parliament, and is rejected by the applicant as grounded in animus
towards trade unions’, they go no further than this.80 Crucially, given the
technocratic way in which the market is constructed here, there is no sense that
‘rebalancing’ the economy might benefit particular sectors of society, i.e. that
economic transformations might be part and parcel of a class project. Yet, with-
out such an understanding, it is almost impossible to understand the transform-
ations that occurred in British labour law over the course of the late-1970s and
1980s.
The Thatcher government of 1979 is generally understood as one of the van-
guard governments in the creation of neo-liberalism. When that government
came to power, it was in the midst of an extended political and economic crisis.
Following the end of the Second World War, Britain – and other advanced cap-
italist powers – had adopted a Keynesian economic and political settlement. This
was undergirded by a class compromise in which capitalists in the advanced cap-
italist world would accept higher taxes – and State control of key sectors of the
economy – in exchange for social peace and a steady profit rate.81 This class
compromise was – in Britain – built upon an industrial relations regime in
which collective bargaining was the key regulator of wages throughout the
economy. Around 85% of workplaces were covered by a collective bargaining
agreement in which a trade union would deal directly with the employer to
regulate the terms of conditions for its workers.82 This was accompanied by
a generous regime of strike protection for secondary action, with trade unions
understood as going beyond simply ‘economic-corporate’ representation of their
members.
However, over the course of the 1970s, this consensus began to break down:
global profit had dropped precipitously and economic growth had stalled. This
occurred against a background of international economic instability in which the
previous economic order – underpinned by the US and the gold standard –
began to disintegrate. All of this led to the phenomenon of ‘stagflation’ in
which stagnant growth was accompanied by rapid inflation. Accordingly, class
conflict within Britain reached a heightened pitch: successive governments and
capitalists sought to suppress wages and trade unions engaged in strike action to
defend their members. This culminated in the ‘Winter of Discount’ of 1978,
whereby mass industrial action against pay caps in the public sector hit
a number of key industries.83
The Keynesian class compromise had definitively broken down; this was not
simply the case in Britain, but across the world. In its place, a new economic

80 R.M.T. v UK (n 37) [89].

81 Streeck, Buying Time (n 72).
82 Howell, Trade Unions (n 41) 131.
83 C. Howell and M. Vale, ‘Family or Just Good Friends? The Changing Labour Party-Trade
Union Relationship in Britain since 1979’ (1992) 22 International Journal of Political Econ-
omy 17, 23.
 A Marxist approach 33
settlement had to be found that was better able to guarantee the profit rates. In
order to do this, right-wing governments turned to a series of ideas that had
been percolating since the 1930s promulgated by a number of thinkers – such
as Friedrich Hayek and Milton Freedman – which argued that growth could
only be achieved through the free market.84 These ideas had already been
deployed to great effect in the Global South, most spectacularly in Chile under
the Pinochet regime. In this ‘neoliberal’ model, the job of the government was
to create the conditions for the flourishing of the free market. In this way, then,
neoliberal ideas served as the intellectual justification for a ‘political project to
re-establish the conditions for capital accumulation and to restore the power of
economic elites’.85
In a two-fold sense, this economic restructuring necessitated a clash with
organised labour. First, it involved the privatisation of previously nationalised
industries such as coal and power. These were strongholds of the trade union
movement which resisted privatisation through industrial action.86 Second, in
order to restore profit rates more broadly, it was necessary to curtail heavily the
power of organised labour and re-establish the power of employers.87 These two
facts also point to a deeper problem. The organised labour movement was based
on the premise that society was divided into classes, who shared common inter-
ests. In such a vision, the job of the labour movement was one of solidarity.
This flew in stark contrast to the neo-liberal vision, in which self-interested indi-
viduals acting through the market were key. It was this need that drove the
changes in labour law under Thatcherism.88
Thus, far from a neutral ‘re-balancing’ of the economy, the transformations of
Britain in the 1980s were the result of profound class conflict. This class conflict
itself was occasioned by a specific crisis in global capitalism. British labour law,
therefore, was both the product of, and a weapon in, that class struggle. It is
also in this context that we need to view the continued maintenance of the ban
on secondary action by Labour governments. For the Court, this is evidence of
the ‘democratic’ legitimacy of that ban. In practice, however, later Labour gov-
ernments took power in a domestic and global economy that had been funda-
mentally reshaped. After a series of heated battles within the Labour Party,
a faction committed to maintaining the basic shape of the neo-liberal status
quo – Tony Blair’s ‘New Labour’ – won power. The decision to maintain
the ban on secondary action was less a ‘democratic’ consensus and more

84 R. Connell and N. Dados, ‘Where in the World Does Neoliberalism Come From?’ (2014) 43
Theory and Society 117, 119.
85 D. Harvey, A Brief History of Neoliberalism (Oxford University Press 2005) 19.
86 D. Parker, The Official History of Privatisation: Popular Capitalism, 1987–97 (Routledge
2012) 407–434.
87 Harvey, A Brief History (n 85) 69.
88 For a fuller account of this argument see R. Knox, ‘Law, Neoliberalism and the Constitution
of Political Subjectivity: The Case of Organised Labour’ in H. Brabazon (ed), Neoliberal
Legality: Understanding the Role of Law in the Neoliberal Project (Routledge 2016).
34 Robert Knox
a recognition that the forces of neoliberalism had successfully forged a new eco-
nomic and political order which could not simply be reversed.89
The Court is simply unable to see this. Instead, in its account, the economy is
seen as a ‘neutral’ domain into which the State makes technical re-adjustments,
as opposed to a field of struggle and a vital context for political action. Crucially,
this also means that the Court must posit the British State as a neutral actor.
There is no sense that the government might have specific political-economic pri-
orities, or represent the interests of specific sections of society. Instead, the
Court – of necessity – takes at face value that the State (and government) acts as
a neutral arbiter.

f Human rights, capitalist logics

It is particularly telling that the Thatcher government did not simply restrict
the rights of trade unions. Instead, that government attempted to carve out
a ‘legitimate’ space for industrial action. Specifically, the government sought
to limit any notion of a solidaristic or political role for industrial action. Trade
unions would only be protected from legal liability insofar as they acted as
‘economic corporate’ bodies, any attempt to use their economic power for
a wider political or solidaristic goal would leave them vulnerable to legal
action. Accordingly, it was not simply the case that the legal regime was
restrictive of trade unions activity. Rather it legally channelled their activity
into directions that were (more) compatible with neoliberalism. That legal
regime was productive of a new regime of collective subjectivity for trade
unions, in which their role was as narrow civil society organisations that pro-
tected the immediate interests of their members. This would also have the
effect of forcing a wedge between the political and economic functions of
trade unions.90
If the neo-liberal vision of the trade union sounds familiar, it is because this
vision is fundamentally the same ultimate vision of the trade union that is
enshrined in Article 11, and put forward in R.M.T. v UK. Indeed, the Thatcher
government shared a similar antipathy to the ECtHR about the ‘closed shop’
agreement, with the case of Young essentially introducing the ban on closed
shops which had been put forward by the Conservative Party in the Industrial
Relations Act 1971 (itself defeated by industrial action). This connection is not
simply accidental. The previous sections have shown that a Marxist account of
R.M.T. v UK helps us illuminate its ideological dimensions. In particular, the
Court interprets trade unions in an individualistic fashion, abstracting them
from their material context. In so doing, it recasts political and economic con-
flicts as depoliticised clashes of rights.

89 Harvey, A Brief History (n 85) 62–63.

90 Knox, ‘Neoliberalism’ (n 88) 102–109.
 A Marxist approach 35
However, just as domestic law did not simply ‘restrict’ trade union action but
re-articulated it, human rights law does not simply ‘retell’ the story. Instead, by
forcing trade unions to frame their actions in terms of Article 11, the Court in
practice contributes to the transformation in collective political subjectivity pion-
eered by the Thatcher government’s legal reforms. Thus, it is clear in R.M.T.
v UK that – in order to even be heard before the Court – the RMT had to
frame its actions not in wider political and economic terms, but rather in
a narrower set of claims. Where the RMT did attempt to make broader argu-
ments around solidarity, these were quickly shut down.
Crucially, it is this conception of trade union action which underlies cases
which seem actively hostile to trade union activity – such as Young or R.M.T. –
and those which seem to favour it, such as Demir. Even when trade unions
‘win’, therefore, they do so by accepting a conception of the trade union that
is – at the very least – fundamentally compatible with neoliberalism. Accord-
ingly, whilst such victories may be important, they are unable to challenge the
fundamental issues which create the problems that trade unions seek to address –
namely the structures of capitalist social relations.
It is here, then, that we can come full circle. One crucial Marxist insight on
human rights law is that it shares a structural logic with the commodity form,
insofar as it individualises and abstracts situations from their wider context. We
can see this clearly in the Court’s conception of the trade union’s function and
in its account of the history of UK’s labour law. In its case law, the Court takes
the concerns of trade unions and channels them in directions that make them
fundamentally compatible with capitalist social relations. Thus, the RMT’s more
fundamental criticisms of UK labour law – that it sides with the capitalist class
and prevents trade union solidarity – are translated into a depoliticised, abstract
and formal claim that they are not able to efficiently represent their members’
interests. Even if the RMT had achieved a legal victory on such a basis, it would
nonetheless have reconfirmed the ECtHR’s conception of the role, the trade
union.

g Historical materialist human rights?

In a 1981 article, Mark Tushnet, the Critical Legal Studies – and subsequently
Marxist – scholar, attempted to answer the question of how he would decide
a case based on critical legal theory. Tushnet wrote:

My answer, in brief, is to make an explicitly political judgment: which result

is, in the circumstances now existing, likely to advance the cause of social-
ism? Having decided that, I would write an opinion in some currently
favored version of Grand Theory.91

91 M. Tushnet, ‘The Dilemmas of Liberal Constitutionalism’ (1981) 42 Ohio State Law Journal
411, 424.
36 Robert Knox
For Tushnet, the question of how to decide a legal opinion in a critical manner
was ultimately an external one. The point was to advance a political project
which exists outside the law and ‘translate’ it into legal language. In a sense,
this is precisely the Marxist position on human rights’ judgements; there is no
distinctively ‘Marxist’ form of legal reasoning, rather Marxists seek to win those
legal victories that might plausibly advance the class struggle. Of course, one
problem that Tushnet overlooks – and one that has been emphasised above – is
that legal reasoning is not simply a neutral terrain. Even in those instances
where the trade union movement has gained victories, it has done so at the
expense of consolidating a neoliberal understanding of the trade union.
The debates about the political consequences of this position have been quite
intense, both in terms of human rights specifically92 and more generally in terms
of the utility of legal argument.93 One of the key questions has been whether or
not the disadvantages inherent in legal arguments are able to outweigh the polit-
ical advantages that might accrue. Elsewhere, I have attempted to argue that
this is something of a false argument. Rather than focusing on whether or not
legal arguments should or should not be used, our attention ought to shift to
how we deploy legal arguments.94 In particular, I have argued we ought to
adopt a ‘principled opportunism’, in which rights arguments are consciously
subordinated to a wider political project, and deployed in an openly political
manner – so as to try and undercut their depoliticising tendencies.95
These reflections also allow us to think of a more speculative set of questions.
Namely, could we conceive of a radically different set of rights arguments which
drew on the Marxist tradition? Would it be possible to deal with the issues in
R.M.T. v UK in such a way as to avoid the problems flagged up by Marxist ana-
lysis of the case, whilst also taking advantage of the insights that the Marxist
tradition offers? Could we conceive of a set of historical materialist rights
arguments?
The crucial issues identified with the language – and form – of human rights law
by the Marxist tradition are that it tends towards abstraction and individualisation,
and in turn depoliticises social conflicts. In the case of the R.M.T. v UK, this

92 See generally A. Bartholomew, ‘Should a Marxist Believe in Marx on Rights?’ (1990) 26

Socialist Register 244; CMJ. Boyd, ‘Can a Marxist Believe in Human Rights?’ (2009) 37 Cri-
tique 579; R. Cornell, ‘Should a Marxist Believe in Rights?’ (1984) 4 Praxis International
45; S. Lukes, ‘Can a Marxist Believe in Human Rights?’ (1982) 1 Praxis International 334;
J. Wills, ‘The World Turned Upside Down? Neo-Liberalism, Socioeconomic Rights, and
Hegemony’ (2014) 27 Leiden Journal of International Law 11.
93 See, G. Baars, ‘Reform or Revolution – Polanyian versus Marxism Perspectives on the Regula-
tion of the Economic’ (2011) 62 Northern Ireland Legal Quarterly 415; B. Bowring, ‘What
Is Radical in “Radical International Law”?’ (2011) 22 Finnish Yearbook of International Law
3; R. Knox, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 193;
R. Knox ‘What Is to Be Done (With Critical Legal Theory)?’ (2011) 22 Finnish Yearbook of
International Law 31.
94 Knox, ‘Strategy and Tactics’ (n 93).
95 ibid 222–227; Knox, ‘What Is to be Done?’ (n 93) 41–45.
 A Marxist approach 37
manifested in the fact that under Article 11, a trade union is simply conceived of as
a voluntary organisation that advances the immediate interests of its individual
members. As a consequence, industrial action is cast as an abstract clash of rights.
The logical conclusion of these two facts was that secondary action can be justifiably
limited by national authorities since they are neutral arbiters who seek to ‘re-
balance’ the economy. As a result of this, the Court also retold the fierce class strug-
gles of the 1980s and 1990s – in which neoliberalism was birthed and consolidated
in Britain – as an apolitical story of readjusting the economy.
A Marxist account of R.M.T. v UK would start from a very different premise.
It would begin from an examination of the logic of a capitalist economy. Here,
a capitalist class owns the means of production and is able to generate profit
through the exploitation of the working class. Two immediate consequences
flow from this. The first is that capitalists, since they own and control the means
of production, have vastly more power than individual workers. The second is
that capitalists and workers exist as classes: meaning that they possess distinct
interests which are antagonistic. In particular, in the short term, it will always be
in the interest of capitalists to suppress costs – including wages and working
conditions – as much as possible. In the medium and long term, therefore,
removing the control of the means of production from the capitalist class will be
in the interests of the working class.
The foregoing means that it is not possible to understand trade unions as
simple voluntary organisations through which individuals advance their inter-
ests. Instead, they are collective organisations of the working class, engaged
in structural conflict with the capitalist class. The logical corollary of this –
following Gramsci – is that the ‘function’ of trade unions is wider than
simply fighting for the immediate economic interests of its members. Trade
unions serve a wider representative and political function. This latter point
would suggest that solidarity is central to the mission of the trade union, and
accordingly that secondary action must be seen as a key element of trade
unionism.96
Such an understanding would also fundamentally change how the Court
understood the role of industrial action. In the Court’s telling, industrial action
represents a clash of rights between a particular trade union and wider social
interests. Insofar as trade unions are conceptualised as class representatives, this
picture is complicated. Particular industrial actions are political-economic strug-
gles which – by forcing employers as a class on the back foot – may have wider
positive social consequences for the working class.
A historical-materialist approach to industrial action would thus seek to
understand it in a wider political-economic context, not simply as the abstract
clash of rights. This re-politicised understanding would also mean that the
Court would not conceptualise the legal and economic changes achieved under

96 It is precisely for this reason that some have argued that human rights law cannot capture
what is central to the labour movement, see Youngdahl, ‘Solidarity First’ (n 63).
38 Robert Knox
Thatcher as a ‘re-balancing’ of the economy. Instead, they would be understood
as moments of class warfare in the context of an economic crisis of capitalism –
the ultimate aim of which was to re-entrench class power in the form of
neoliberalism.
All of this would then be fed back into the RMT’s own particular case.
Rather than being understood as an isolated moment, it would be situated in
the history and function of the trade union movement. Here the issue would
not simply be whether the RMT wished to ‘effectively’ represent its members.
Instead, the questions would be deeper, more political: namely, what was the
function of the ban on secondary action in class terms?; whose interests did
that ban serve?; what wider political mission could the RMT conduct in this
context?
Crucially, then, the insights of the Marxist tradition would help to re-
contextualise and re-politicise R.M.T. v UK. These insights would highlight that
the situation was not simply a clash of rights, but a broader political and eco-
nomic struggle. Most importantly, Marxist analysis would suggest that, in such
a situation, there are sides and ruling one way or the other means taking a side
in this political and economic conflict.
It is precisely for these reasons that the insights of the Marxist tradition could
not be assimilated to human rights law as we know it today. Human rights adju-
dicators are committed to the idea that they are the neutral arbiters of a set of
universal rights removed from political contestation. In taking a Marxist
approach to R.M.T. v UK, the Court would have had to acknowledge that, in
fact, human rights are themselves a political field of struggle. The Court would
then have to explicit and openly take a side in this political struggle. There have
been examples of courts taking an openly radical political stance, but it usually
takes a revolution to create them.97

Bibliography

Books
Bowring, B, The Degradation of the International Legal Order: The Rehabilitation of Law
and the Possibility of Politics (Routledge 2008).
Braverman, H, Labor and Monopoly Capital (2nd edition, Monthly Review Press 1998).
Brodie, D, A History of British Labour Law: 1867–1945 (Hart 2003).
Gramsci, A, Selections from the Prison Notebooks (Lawrence & Wishart 1971).
Griffith, JAG, The Politics of the Judiciary (Manchester University Press 1977).
Harvey, D, A Brief History of Neoliberalism (Oxford University Press 2005).
Howell, C, Trade Unions and the State: The Construction of Industrial Relations Institu-
tions in Britain, 1890–2000 (Princeton University Press 2005).

97 See J. Vergès, De La Stratégie Judiciaire (Minuit 1968) for an account of those (revolutionary)
situations when a court has explicitly and openly declared itself on the side of the oppressed.
 A Marxist approach 39
Lenin, VI, What Is to Be Done? Burning Questions of Our Movement (Foreign Languages
Press 1973).
Marks, S, The Riddle of All Constitutions: International Law, Democracy, and the Critique
of Ideology (Oxford University Press 2003).
Marx, K, Capital: A Critique of Political Economy (Penguin 1990).
Marx, K, Wages, Price and Profit (Routledge 1975).
Norfield, T, The City: London and the Global Power of Finance (Verso 2016).
Parker, D, The Official History of Privatisation: Popular Capitalism, 1987–97 (Routledge
2012).
Rajagopal, B, International Law from Below: Development, Social Movements, and Third
World Resistance (Cambridge University Press 2003).
Streeck, W, Buying Time: The Delayed Crisis of Democratic Capitalism (2nd revised edition,
Verso 2017).
Vergès, J, De La Stratégie Judiciaire (Minuit 1968).

Book chapters
Knox, R, ‘Law, Neoliberalism and the Constitution of Political Subjectivity: The Case of
Organised Labour’, in Brabazon, H (ed), Neoliberal Legality: Understanding the Role of
Law in the Neoliberal Project (Routledge 2016).
Krever, T, ‘Ending Impunity? Eliding Political Economy in International Criminal Law’, in
Mattei, U and Haskell, JD (eds), Research Handbook on Political Economy and Law
(Edward Elgar 2015).
Kumar, V, ‘Rethinking the Convergence of Human Rights and Labour Rights in
International Law: Depoliticisation and Excess’, in Buchanan, R and Zumbansen, P
(eds), Law in Transition: Human Rights, Development and Transitional Justice
(Hart 2014).
Marx, K, ‘On the Jewish Question’, in Tucker, R (ed), The Marx-Engels Reader (2nd edi-
tion, Norton & Company 1978a) .
Marx, K, ‘Preface to A Contribution to the Critique of Political’, in Tucker, R (ed), The
Marx-Engels Reader (2nd edition, Norton & Company 1978b).
Marx, K and Engels, F, ‘The German Ideology’, in Tucker, R (ed), The Marx-Engels
Reader (2nd edition, Norton & Company 1978).
Pashukanis, E, ‘The General Theory of Law and Marxism’, in Beirne, P and Sharlet, R
(eds), Selected Writings on Marxism and Law (Academic Press 1980).

Articles
Baars, G, ‘“Reform or Revolution”? Polanyian versus Marxism Perspectives on the Regula-
tion of the Economic’ (2011) 62 Northern Ireland Legal Quarterly 415.
Bartholomew, A, ‘Should a Marxist Believe in Marx on Rights?’ (1990) 26 Socialist Register
244.
Bowring, B, ‘What Is Radical in “Radical International Law”?’ (2011) 22 Finnish Yearbook
of International Law 1.
Boyd, CMJ, ‘Can a Marxist Believe in Human Rights?’ (2009) 37 Critique 579.
Cain, PJ and Hopkins, AG, ‘Gentlemanly Capitalism and British Expansion Overseas II:
New Imperialism, 1850–1945’ (1987) 40 The Economic History Review 1.
40 Robert Knox
Connell, R and Dados, N, ‘Where in the World Does Neoliberalism Come From?’ (2014)
43 Theory and Society 117.
Cornell, R, ‘Should a Marxist Believe in Rights?’ (1984) 4 Praxis International 45.
Gathii, JT, ‘Good Governance as a Counter Insurgency Agenda to Oppositional and Trans-
formative Social Projects in International Law’ (1999) 5 Buffalo Human Rights Law
Review 107.
Howell, C and Vale, M, ‘Family or Just Good Friends? The Changing Labour Party-Trade
Union Relationship in Britain since 1979’ (1992) 22 International Journal of Political
Economy 17.
Knox, R, ‘Strategy and Tactics’ (2010) 21 Finnish Yearbook of International Law 193.
Knox, R, ‘What Is to Be Done (With Critical Legal Theory)?’ (2011) 22 Finnish Yearbook
of International Law 31.
Knox, R, ‘Valuing Race? Stretched Marxism and the Logic of Imperialism’ (2016) 4
London Review of International Law 81.
Lewis, R, ‘The Historical Development of Labour Law’ (1976) 14 British Journal of Indus-
trial Relations 1.
Lukes, S, ‘Can a Marxist Believe in Human Rights?’ (1982) 1 Praxis International 334.
Marks, S, ‘False Contingency’ (2009) 62 Current Legal Problems 1.
Marks, S, ‘Human Rights and Root Causes’ (2011) 74 The Modern Law Review 57.
Mutua, M, ‘Savages, Victims, and Saviors: The Metaphor of Human Rights’ (2001) 42
Harvard International Law Journal 201.
O’Connell, P, ‘On Reconciling Irreconcilables: Neo-Liberal Globalisation and Human
Rights’ (2007) 7 Human Rights Law Review 483.
Taha, M, ‘Reading “Class” in International Law: The Labor Question in Interwar Egypt’
(2016) 25 Social & Legal Studies 567.
Tushnet, M, ‘The Dilemmas of Liberal Constitutionalism’ (1981) 42 Ohio St. LJ 411.
Voeten, E, ‘The Impartiality of International Judges: Evidence from the European Court of
Human Rights’ (2008) 102 American Political Science Review 417.
Wills, J, ‘The World Turned Upside Down? Neo-Liberalism, Socioeconomic Rights, and
Hegemony’ (2014) 27 Leiden Journal of International Law 11.
Youngdahl, J, ‘Solidarity First: Labor Rights Are Not the Same as Human Rights’ (2009)
18 New Labor Forum 31.

Cases
Associated Society of Locomotive Engineers & Firemen (ASLEF) v the United Kingdom,
Application no. 11002/05, 27 February 2007.
Demir and Baykara v Turkey, Application no. 34503/97, 12 November 2008.
National Union of Rail, Maritime and Transport Workers v the United Kingdom, Application
no. 31045/10, 8 April 2014, ECHR 2014.
Sørensen and Rasmussen v Denmark, Application nos. 52562/99 and 52620/99, 11 Jan-
uary 2006, ECHR 2006-I.
UNISON v the United Kingdom (dec.), Application no. 53574/99, 10 January 2002, ECHR
2002-I.
Wilson, National Union of Journalists and Others v the United Kingdom, Application nos.
30668/96, 30671/96 and 30678/96, 2 July 2002, ECHR 2002-V.
Young, James and Webster v the United Kingdom, Application no. 7601/76; 7806/77,
13 August 1981, Series A no. 44.
 A Marxist approach 41
Legislation
The Trade Disputes Act 1906.
The Trade Disputes and Trade Unions Act 1927.
Trade Disputes and Trade Unions Act 1946.