Leader, Sheldon --- "Inflating Consent, Inflating Function, and Inserting Human Rights" [2006] ELECD 67; in Dine, Janet; Fagan, Andrew (eds), "Human Rights and Capitalism" (Edward Elgar Publishing, 2006)

Book Title: Human Rights and Capitalism

Editor(s): Dine, Janet; Fagan, Andrew

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845422684

Section: Chapter 2

Section Title: Inflating Consent, Inflating Function, and Inserting Human Rights

Author(s): Leader, Sheldon

Number of pages: 20

Extract:

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 inflat-
ing 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 Euro-
pean 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 permit-
ting 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 ...