This article argues there is no one-size-fits-all approach to the role of consent to labour exploitation. However, there is significant value in considering the theoretical underpinnings of different legal interventions addressing labour exploitation. The article first explores different theoretical accounts of exploitation in political philosophy: emphasising taking unfair advantage, violation of dignity or coercion. Following the theoretical analysis, the article maps the different legal interventions in labour law, criminal law and public law. It suggests that the starting point of analysing consent to labour exploitation—fairness, dignity, individual coercion, structural coercion and consent—determines the result of the analysis. This section demonstrates the connection between different areas of law and different theoretical approaches to the role of consent to labour exploitation. The different approaches are then applied to examples based on real-world cases. The article concludes that in the context of labour exploitation, consent is a necessary but insufficient condition for the legitimacy and legality of the labour relations. The fairness of the result and protecting workers’ dignity should also be considered.

Introduction

Consent has the power to legitimate interactions that would otherwise be illegal or morally wrong.1 This is the case for touch, sex, accessing private information, appropriation of another’s property and other acts. Labour exploitation is considered morally wrong, and at least in some circumstances, illegal. Could consent legitimise it? If so, what would consent to labour exploitation look like?

Each response to the question of consent as legitimating labour exploitation comes at a cost. Legitimising consensual labour exploitation risks exposing workers to poor and unacceptable conditions. Ignoring consent denies workers’ agency, and denies them the choice they identify as the lesser of two evils, inflicting on them an even worse fate.2 This article does not propose a one-size-fits-all solution to the conundrum of agency and consent to labour exploitation, as such a solution does not exist.

Instead, the article examines interventions in criminal law, labour law and public law regarding consent to labour exploitation. It explores theoretical understandings of labour exploitation and maps approaches to consent in these areas of law. The article first identifies three understandings of labour exploitation in political philosophy: based on unfairness, dignity and coercion. Second, the article maps the different approaches to consent to labour exploitation in law, exploring the connection between the approach to consent to exploitation in different areas of law and the philosophical understandings of labour exploitation. The section demonstrates the differences between legal rules that start with a substantive analysis of the notions of fairness and dignity, those that start with assessing coercion (individual and structural) and those that focus on consent. This section suggests that the starting point of analysing consent to labour exploitation determines the result of the legal analysis. Finally, real-life examples are analysed to demonstrate how the different approaches may vary in both the questions at the heart of legal proceedings and the outcomes of the case.

Criminal law emphasises coercion and violation of dignity, while labour law and public law focus on structural coercion. Consent is given limited weight in both criminal law and labour law, but for different reasons. The article argues that the understanding of ‘labour exploitation’ shapes the role of consent in legal interventions. It further argues that in the context of work offering poor conditions, consent should be considered a necessary but insufficient condition for the legitimacy and legality of the labour relations. An understanding of labour exploitation that is not limited to the extreme cases of slavery and trafficking would clearly distinguish between exploitation and coercion, and assess the fairness and dignity of the labour conditions. My own definition of ‘labour exploitation’ covers abusing worker’s vulnerability to offer labour conditions (including remuneration) that fall significantly below acceptable standards, reflected either in labour laws or in standards required to maintain basic human dignity. I consider below different theories that inform or challenge aspects of this definition.

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