In an ideal world, we would all fly free without ever running the risk of encountering an ill wind, and we would build our dreams without having to worry that they might come crashing down.
In the real world, it is always a question of the exposure we are prepared to endure for the sake of being free to live the way we want to.
This is nowhere more true than in the employment relationship. Being free to quit is what distinguishes the worker from a slave. Slaves can’t quit their work. Free workers can wake up any morning and decide never to go back to work. Since we no longer live in the brutal world of long ago, nobody risks being thrown in prison, or flogged, or strung up, simply for failing to show up at work. The worst that could possibly happen is that they would get fired, which would probably work out just about fine given that they had already quit.
As all the 'constructive dismissal' litigation shows, when an employment relationship ends it's not as easy as you'd think to know whether someone has quit or whether they've been fired. It often depends on who spoke the fatal relationship-ending words. Who was the dumper, and who was the dumped? This is where things get a bit tricky because while quitting can be very much fun in a therapeutic sort of way, getting fired always sucks.
One way to fix that is to create lop-sided bargains where workers are free to quit but employers are not free to fire. That’s difficult to achieve by contract because no rational employer would agree to that. Another solution is to create prison-like bargains where workers are not allowed to quit and employers are not allowed to fire; they are stuck together for life unless officially divorced by a court of law. That way nobody is unfairly cut off from the other by the mere expedient of the other walking away. Sounds like fun, huh.
Another solution is to just let everyone strike whichever bargains strike them as being expedient, if they can find someone prepared to agree to their proposed terms. This is a radical idea known as ‘freedom of contract’. I know, shocking.
Many people think that the whole idea of freedom of contract is merely a way of subjugating people to the service of The Market. It is true that markets function more efficiently when people are free to trade without unnecessary restrictions, but that’s not the essential reason why freedom is such a great idea. It is quite wrong to think that the main reason to defend employment at will is because it promotes efficiency and productivity. Efficiency and productivity are nice things to achieve, obviously, and well-functioning markets are certainly very handy, but the main reason why we should value the freedom to enter into bargains with other people goes much deeper than that:
Personal autonomy means being free to choose one’s own occupation and path in life. This is risky, because what if I choose to be a singer and nobody likes my songs because they think I sound like a strangled cricket? Should there be some kind of equal opportunities law to ensure that I get the chance to sing for my supper?
It is easy to see this in the great debates about the scope of the contract of employment. Employment protection for those with a contract of service is privileged at the expense of those working on independent contracts, and there's a huge surge of people in the courts trying to get their contracts classified as the right type of contract for job security.
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