CONCLUSION
Time for What We Will
7.1 PROVIDING FREE TIME
In the just society, all citizens would be guaranteed their fair shares of free time, time they could devote at their discretion to their own ends. But to how much free time are citizens entitled? And how are citizens’ claims to free time to be guaranteed? This final chapter addresses these two questions. Answering the question of “how much” requires, among other considerations, weighing the value of additional time against additional money. Answering the question of “how” depends on identifying the essential features of citizens’ claims and possible ways of realizing them.
Addressing these questions reveals two additional and significant implications. First, recognizing citizens’ claims to free time provides grounds to bolster and adjudicate a range of contested welfare and employment policies. Liberal theories of justice have justified labor and employment regulations on an array of contingent grounds, producing overlapping and at times conflicting justifications. The claim to free time provides foundational grounds to justify a diverse set of policies, as well as a principle that can both settle existing policy disputes and yield new and unorthodox policy ideas.
Second, recognizing free time as a resource that is valuable to citizens in the same way as the resources of income and wealth provides grounds to challenge the presumption in favor of unceasing economic growth as a social goal. Once a society has reached a certain degree of development, additional temporal resources may be of greater value to citizens’ effective freedom than additional material resources, and so a society may justly choose to forgo more material wealth in favor of more free time.
7.2 HOW MUCH? DETERMINING FAIR SHARES
In reply to the claim that all citizens are entitled to a fair share of free time, a sensible practical question is, to how much free time are citizens entitled? Because the argument applies across a range of theories and to different societies, and given the attendant variation in how the relevant principles might be applied and in empirical circumstances, there is no single answer to provide. It is, however, possible to provide an explanation of how to determine an answer, by describing the considerations relevant to what constitutes a fair share. In a wealthy society, as this will show, the answer is likely at least the “eight hours for what we will” demanded by early labor reformers, if not more. Yet, whatever the prescribed amount, and whether this amounts to more or less than citizens in existing societies have on average, the important point is that in the just society all citizens would have their fair share of free time, and they would have that free time by right.
To determine what constitutes a fair share of free time, there are four relevant considerations:
(1) how much time a society must devote to the shared burdens of social cooperation
(2) which distributive principles apply to citizens’ resource claims
(3) the relative weights given to different resources
(4) whether any special intervening reasons apply to an individual’s claim
The first consideration depends on how demanding the shared burdens of social cooperation are, according to the background theory of justice, and how much time is required to meet those shared burdens. Consistent with standard liberal egalitarian principles, I have assumed that society has a general obligation to ensure, insofar as is possible consistent with the other requirements of justice, that the basic needs of all its members are met (see 3.8). Meeting this general social obligation, or any further shared burdens, requires some amount of time-consuming labor.1 How much time depends on empirical circumstances, particularly a society’s level of material wealth and technological development. Though the levels of functioning associated with the basic needs vary across societies (see 3.7), generally, the more technologically advanced and wealthier a society is, the less time a society must expend to meet the basic needs of all its members. These two factors—how demanding a society’s shared burdens are and how much time is required to meet them—determine the aggregate amount of free time available in a society. Thus, in two societies with the same obligation to meet the basic needs of their members and assuming no obligations across the two societies, there may be little aggregate free time available in an impoverished and less technological developed society and an abundance of aggregate free time available in a wealthy and technologically developed society.
From this aggregate available amount of free time, the next consideration is which distributive principle applies to citizens’ resource claims, that is whether an egalitarian, sufficientarian, prioritarian, or other principle. Which principle applies depends on the particular theory of justice, and as discussed in 4.5, the relevant principle for citizens’ claims to free time may differ from that applied to citizens’ other resource claims. Before addressing the third consideration—the relative weights given to different resources—at greater length, the final consideration is whether any special intervening reasons apply to an individual’s claim. The primary reasons of this type, as discussed in 4.7, relate to an individual’s choice of occupation. If someone, given the first three considerations, would have a claim to eight hours of free time per day, but chose an occupation, such as being self-employed or in the military, to the effect that her pro tanto claim to free time in her chosen occupation is overridden by an intervening reason, she may be entitled to less than would otherwise be her fair share.
The third consideration—how citizens’ claims to free time are weighted against their claims to other resources—warrants greater attention, both for its greater complexity and for an implication it raises about the value of economic growth. Citizens are entitled to free time on the basis of the effective freedoms principle, which holds that citizens are entitled to a fair share of the resources that are generally required to exercise their formal liberties and opportunities. But free time is not the only resource to which the principle applies; citizens also generally require the resources of income and wealth (among others). Thus, on the basis of the effective freedoms principle, citizens are entitled to a fair share of a bundle of resources—both temporal and material—to exercise their freedoms. Because both resources are generally required and because money is imperfectly substitutable for time (see 4.4), this bundle must include some amount of both resources. This raises the question of how citizens’ bundles ought to be allocated between the resources of free time and the resources of income and wealth, a question that is complicated by the fact that the relationship between the two resources is dynamic. There is a trade-off, both at a given time and over time, between being able to guarantee more free time or more income and wealth.
The trade-off is most readily apparent between income and leisure, understood as time not engaged in paid work. As the neoclassical economic model of labor supply depicts, at any given time, there is an inverse relationship between income and leisure, as individuals choose between engaging in income-earning work or income-forgoing leisure. And, over time, if productivity increases, those gains from productivity can either be taken in the form of fewer work hours and more leisure or constant work hours and more production.2 The trade-off between leisure and income is not necessarily constant, since under some circumstances more leisure time may increase labor productivity or labor force participation, but there is still, under any set of circumstances, a trade-off at some point between more leisure and more production, and thus more income and wealth.
A similar, though less pronounced, trade-off exists between income and free time. The trade-off arises for two reasons: first, because guaranteeing free time requires wealth-consuming public provisions and targeted subsidies (as I will discuss in 7.3) and, second, because citizens may choose to spend their guaranteed free time not engaging in income-earning work or economic production. Thus, guaranteeing greater amounts of free time may constrain economic production and, in turn, the amount of income and wealth available to citizens, such that to guarantee citizens a greater amount of free time may limit the amount of income and wealth that citizens can be guaranteed.
To be clear, though a trade-off between greater free time and greater income and wealth may, in many circumstances, be likely to occur, its existence or magnitude is not a certainty. Some of the reasons the trade-off might be moderated are the same as those that would apply to guaranteed leisure: depending on labor market dynamics, guaranteeing citizens a greater amount of free time may increase productivity (if workers are more productive working shorter shifts) and increase labor force participation (if caregivers and the disabled take advantage of shorter work shifts to enter the labor force).3 But there is also an important way in which the relationship between income and free time is different from that between income and leisure: that is, one can choose to spend one’s guaranteed free time engaged in paid work or economic production. Someone who presently works long hours, if guaranteed the opportunity to work shorter hours, may choose not to take advantage of that opportunity and instead to continue working long hours. Or someone might work shorter hours in her current employment and use the newly available free time to moonlight or begin a new business venture. Thus, though providing citizens with a greater amount of free time would, at some point, almost certainly reduce a society’s level of economic growth and possible material wealth, the existence and extent of this tradeoff may vary.
Given, then, that citizens’ bundles must include some amount of both resources, and assuming there is a trade-off between guaranteeing more free time and more income and wealth, how should the bundles be allocated across resources? More pointedly, how much free time should citizens be guaranteed, in light of the fact that, at some point, guaranteeing greater shares of free time is likely to come at the cost of diminished economic production and smaller shares of income and wealth?
Though the trade-off between time and money has been neglected, in its general form, this problem is not a new one for theories of justice, for it arises whenever citizens have dynamic multidimensional claims. An example is the potential conflict between Rawls’s primary goods of income and wealth and the powers and prerogatives of office. If the powers and prerogatives of office are realized through workplace democracy and broad citizen control over the means of production, guaranteeing citizens a greater share of this resource may reduce the society’s total economic production, and so reduce citizens’ shares of income and wealth.4
This difficulty is handled on Rawls’s theory of justice, as, in some form, on most liberal egalitarian theories, by the construction of an index, which bundles and assigns relative weights and marginal values to the different primary goods. If one resource is of lesser relative value or of more diminishing marginal value, sacrifices in it ought to be made for the sake of greater shares of the more valuable resources. Specifying such an index in any detail is, of course, a complex task, and thus most theories only suggest how an index would be constructed.
There are three general approaches that might be taken. To be clear, whichever approach is followed, citizens must be guaranteed some amount of free time on the grounds of the effective freedoms principle. Beyond this, first, the relative weights may be empirically determined. If, for instance, a theory holds that justice requires maximizing the real freedom of the least advantaged position, the theory could hold that, in any given circumstances, a specific ratio of free time to income and wealth would in fact maximize the least advantaged’s real freedom. Second, the index might be constructed by relying on intuitive judgments of what would be rationally prudent for the least advantaged. This is the approach Rawls explicitly endorses: “weighting primary goods” is done “by taking up the standpoint of the representative individual from this group and asking which combination of primary social goods it would be rational for him to prefer.”5 On these two approaches, the relative value of time to money could be determined, based on either empirical facts or hypothetical or intuitive judgments, without reference to the judgments of the society’s members.
On the third approach, the relative weights of the resources in the index would be determined democratically, as a society could popularly decide whether to guarantee a greater share of or aim to maximize one resource over another.6 A society might democratically choose to guarantee a greater amount of free time and accept lower rates of economic growth and shares of income and wealth, or it might choose the opposite.7 Rawls, in fact, describes such a choice, suggesting this approach: two societies may have justly unequal levels of wealth if, he contends, “the first decides to industrialize and to increase its rate of (real) saving, while the second does not. Being content with things as they are, and preferring a more pastoral and leisurely society, the second reaffirms its social values. Some decades later the first country is twice as wealthy as the second.”8
The question of how to weight time relative to money has implications for the value of economic growth. Consider the following puzzle. Rawls consistently maintains, without argument, that a just society could have a rate of zero economic growth, like J. S. Mill’s “just stationary state.”9 Yet, Rawls also holds that justice requires that society’s economic institutions work to maximize the position of the least advantaged over time. If economic growth would improve the conditions of the least advantaged, there appears to be a contradiction in the claim that a just society could cease economic growth.
The leading account of how to reconcile this apparent tension, offered by Samuel Freeman, is drawn from Rawls’s contention that, rather than “great wealth,” “what men want is meaningful work in free association with others.”10 The position of the least advantaged is measured with an index that includes the powers and prerogatives of office and the social bases of self-respect in addition to income and wealth. Compared to the institutions of capitalist ownership and employment, the institutions of collective ownership and workplace democracy may provide the least advantaged with smaller shares of income and wealth, but greater shares of the powers and prerogatives of office and the social bases of self-respect. Depending on how the primary goods are weighted in the index, the institutions of workplace democracy may be more to the benefit of the least advantaged than the institutions of capitalist employment, and accordingly more compatible with justice. Furthermore, it is possible that the institutions of workplace democracy could result in the cessation of economic growth and still be to the greatest benefit to the least advantaged.
This reconstruction of Rawls’s argument has been met with skepticism that a plausible index would weigh the powers and prerogatives of office and the social bases of self-respect, specifically as realized by workplace democracy, such that it could be to the benefit to the least advantaged to forgo any gains in income and wealth. Such an index, according to this objection, gives both too much weight to the position and status goods provided by workplace democracy and too little weight to further gains in income and wealth. What this account neglects, it is argued, is that “as people gain wealth, their formal freedoms become more valuable to them”—“increases in income” increase “the worth of the freedoms enjoyed by all citizens.”11
The meaningful work account might overcome these objections, but the free time account is less vulnerable to such skepticism because free time is valuable in the same way as income and wealth are. As citizens gain more of the resource of free time, their formal freedoms are more valuable to them: they possess more of the means generally required to exercise their liberties. Citizens require both resources, but at some point of material development, the marginal value of more free time may be greater than the marginal value of more material wealth for the worth of their freedoms. As such, it may be the case that a society, once it has reached a certain level of wealth, could justly decide to forgo any further economic growth for the sake of guaranteeing more free time.
To summarize, to determine what constitutes a fair share of free time, there are four relevant considerations, the application of which will vary with the relevant theory of justice and empirical conditions: first, how much time a society must devote to the shared burdens of social cooperation, indicating the aggregate available amount of free time; second, which distributive principles apply to citizens’ resource claims, whether egalitarian, sufficientarian, or another; third, the relative weights given to different resources, namely the values given to additional free time or material wealth; and fourth, whether any special intervening reasons apply to an individual’s claim, such as an occupational choice which weakens one’s pro tanto claim to free time.
7.3 HOW? PUBLIC POLICY IMPLICATIONS
The preceding considerations indicate to how much free time citizens are entitled. A remaining question is, then, how citizens’ claims are to be realized. Compared to citizens’ claims to income and wealth, it is not as immediately apparent how it could be ensured that citizens have their fair shares of free time. While money can be directly redistributed, free time cannot simply be transferred from one bank account to another. Yet, though the state cannot directly redistribute free time, laws, regulations, and public provisions can, and do, significantly affect how much time it takes one to meet one’s basic needs, to the effect that the state can, through a range of policy mechanisms, ensure that all citizens have their fair shares of free time.
Following the arguments of the preceding chapters, there are four essential features of citizens’ claims to free time that must be met, insofar as it is possible to do so consistent with the other requirements of justice: if x is one’s fair share of free time, one (1) must be able to meet one’s basic needs in (24 – x) hours per day, and (2) must be able to choose to spend no more than (24 – x) hours per day meeting one’s basic needs. Furthermore, (3) a sufficient portion of one’s free time must be shared with one’s current and potential associates, and (4) if one does not have discretion over when one’s free time occurs, it must occur in generally usable periods and on a predictable schedule. There are a range of social arrangements that could realize these conditions, but here I will indicate some of the possible policy mechanisms that are most consonant with existing arrangements and feasible given them. For context, I will begin with a brief survey of the primary policies in the contemporary United States that directly relate to the distribution of free time.
Before proceeding to these policy mechanisms, it is important to note that citizens must have their fair shares of free time consistently over the life course. If citizens were to possess free time only during particular life stages—for instance, only after one’s working years in retirement—that would be incompatible with the grounds of citizens’ claims to free time. So long as one lacks free time, even with the promise of future free time, one lacks the means to enjoy the value of one’s formal liberties and opportunities. Individuals might choose to spend their free time working during the primary years of their careers, but they must still have their fair shares of free time to spend as they so choose. While some periods of more and less free time, as with seasonal work, are still consistent with the effective freedoms principle, the periods must not be of too great duration.
Existing Time Policy in the United States
First, with respect to time engaged in paid work, the United States, compared to other developed countries, has relatively minimal regulations of work hours. There are no federal laws that specify the maximum number of hours that can be worked daily, weekly, or annually, the maximum number of days that can be worked per week, the times of the day that work can occur, or how much vacation time must be provided.12 There are also no federal regulations that require employers to provide employees with short-hours work or flexible work schedules, nor that guarantee benefits or protections for employees who work part-time.13
The primary legislation that regulates working time is the Fair Labor Standards Act (FLSA), passed in 1938, which requires employers to pay covered employees premium wages for hours worked in excess of forty hours per week.14 Apart from the provision for overtime pay, there is no upper limit on how many hours per day or per week an adult employee may work. The FLSA also places no restrictions on mandatory overtime; employers are permitted to require employees to work hours in excess of the standard workday and without advance notice.15 In addition to providing covered employees relatively minimal restrictions and protections, many employees are exempt from the provisions of the FLSA—primarily professional, executive, managerial, and administrative workers paid on a salaried basis—to the effect that approximately one-quarter of all full-time employees are not covered.16
Second, with respect to time engaged in household and caregiving labor, the most significant policy is the Family and Medical Leave Act (FMLA), passed in 1993. The FMLA requires that all covered employers provide their employees with twelve weeks of unpaid leave, continuation of health insurance coverage, and reinstatement in the same or equivalent position to employees who request leave to care for themselves or their family members (specifically, for their own medical condition, including pregnancy, or to take care of a newborn child or newly adopted child, a parent, or a severely ill child or spouse). The FMLA does not entitle employees to leave to care for young children or other relations, nor does it entitle employees to reduced-hours work to provide caregiving. Moreover, only firms with more than fifty employees are covered by the FMLA, to the effect that over half of all employees are not eligible.17
Finally, with respect to time engaged in caring for one’s own bodily needs, the only significant legislation beyond the FMLA, which applies to all workers with short-term illness or injuries, is the Americans with Disabilities Act (ADA), passed in 1990. The ADA applies to all citizens with a disability, defined as “a physical or mental impairment that substantially limits one or more of the major life activities,” and requires employers (with fifteen or more employees) to provide reasonable accommodation to qualified employees, unless it would cause an undue burden on the operation of business. Reasonable accommodations include providing a disabled employee with a reduced-hours or flexible work schedule.18
Guaranteeing a Fair Amount of Free Time
For citizens to possess their fair share of free time, they must both have their fair amount of free time, and have it under fair conditions to make effective use of it. I focus first on the amount and then the conditions.
The claim to a fair share of free time, if x hours per day is the fair amount of free time, is in effect the claim to be able to spend no more than (24 – x) hours per day meeting one’s basic needs. The aim is then to ensure that all citizens are able to spend no more than (24 – x) hours per day meeting their basic needs. This, again, entails two demands. First, it is necessary to ensure that all citizens can in fact meet their basic needs in (24 – x) hours per day. Second, it is necessary to ensure that all citizens can choose to spend no more than (24 – x) hours per day meeting their basic needs.
Accordingly, the types of justified policies fall into two categories. First, the claim to free time justifies policies that help citizens to meet their basic needs in less time so they can have their fair share. This means, broadly, income subsidies or in-kind provisions, and might include a universal basic income, minimum wage laws, income transfers or wage subsidies to low wage earners, targeted income subsidies to the temporarily and permanently disabled, targeted income subsidies to caregivers, and publicly provided caregiving services and facilities for the elderly, disabled, and children. Second, the claim to free time justifies regulations that protect citizens’ ability to choose to spend no more time meeting their basic needs than is necessary to have their fair share. These regulations include maximum work hours provisions, restrictions on overtime work, and workplace accommodations for caregivers and the ill and disabled.
Before illustrating how these policies could be implemented to provide for free time, it is important to emphasize an unorthodox feature of these recommended labor regulations. In accordance with the justification for citizens’ claims to free time, the ideal maximum hours regulation would serve two ends: (1) it would protect all employees’ right to choose not to work longer hours than is necessary to meet their basic needs, and (2) it would allow employees to work longer hours than necessary if they choose. Citizens are entitled to free time to exercise the full range of their formal liberties and opportunities, to pursue their conceptions of the good, whatever they are, whether that means spending their free time involved in typically necessary activities—like additional paid work—or in conventional leisure activities. As such, the justification for guaranteeing citizens free time recommends labor regulations that allow citizens to use their free time for paid work.
However, if it is not possible to simultaneously achieve both ends, the regulations ought to cede the second condition to realize the first. In accordance with standard liberal egalitarian principles, providing the conditions for the effective exercise of the basic liberties, and thus free time, has priority over unfettered exercise of the economic liberties. This conflict arises if the desire of some employees to work longer hours undermines, through competitive pressures and social norms, the ability of other employees to choose not to work longer hours.
Maximum hours regulations that serve both ends could take different forms. Employees might, for instance, have a waivable right not to work hours above a maximum, with protections against retaliation if one chooses not to work more than the maximum hours.19 Or there might be a general maximum hours limit with permission for some employees to opt out of the limit, perhaps with the condition that only a certain percentage of employees in a firm or occupation are permitted to opt out.20 As an additional measure, overtime regulations could allow or require employees to take overtime compensation in the form of compensatory paid time off from work rather than additional wages.21 If regulations of this sort proved ineffective in protecting all employees’ right to choose not to work longer hours, then a prohibitive maximum hours regulation is justified, perhaps tailored to a particular industry or occupational category.22
To illustrate how these two sets of policies—income subsidies or in-kind provisions and labor regulations—could be implemented to provide for free time, I will give examples of individuals with deficiencies of free time resulting from the three realms of necessary activity, financial, household, and bodily. As will become clear, however, some types of policies could address free time deficiencies that arise in each realm. To fix the parameters for the sake of illustration, assume that citizens are entitled to a sufficient amount of free time, that citizens’ claims to free time are conditional on their willingness to work, that caregiving for children and other dependents qualifies as necessary time, and that citizens are entitled to free time in their chosen occupational categories.
Say, more specifically, that citizens are entitled to fifty-six hours of free time per week, and that in a given society the typical amount of time that it takes one to meet one’s bodily basic needs is seventy hours per week and to meet one’s household basic needs ten hours per week, and that the standard level of basic financial need is twenty-five thousand dollars per year (without dependents). An individual with typical bodily and household basic needs must, then, be able to meet her financial basic needs with thirty-two hours of paid work per week in order to have her fair share of fifty-six hours per week of free time. Though this amount is only illustrative, it is not arbitrarily chosen, as it is the amount claimed in the labor slogan, “eight hours for what we will.”
First, take A, who has typical household and bodily needs, but who must spend sixty hours per week engaged in paid work to meet her financial basic needs because she earns only eight dollars per hour. She accordingly has only twenty-eight hours of free time, half of her fair share. Two types of policies would redress her insufficiency of free time, wage subsidies or regulations and maximum hours laws. In order to ensure that A can meet her financial basic needs in only thirty-two hours per week, A requires some type of policy to augment her wage rate. Possible policies include income or wage subsidies, minimum wage laws, or both. Though necessary, these policies are not sufficient to guarantee her fair share of free time if she is unable to find employment in her occupation for only thirty-two hours per week. So, in addition, she must also be protected by a maximum hours regulation that guarantees her the right not to work more than thirty-two hours per week.23
Second, take B, who does thirty-two hours of paid work per week and who has typical bodily needs, but who spends fifty-six hours per week engaged in basic caregiving for his elderly parent and child. As such, he lacks any free time. Again, two types of policies would redress his deficiency of free time: first, public care provision and income subsidies and, second, short hours and caregiving leave regulations.24
Public care provision, both for the elderly and children, would allow B to spend less time engaged in basic caregiving. Possibilities include, for the elderly (or disabled), full-time or part-time nursing homes, at-home nurse visits, delivered meals, or transportation services for the elderly, and for children, universal or means-tested access to public child care facilities, universal pre-kindergartens, and publicly provided before- and after-school care.25 Income subsidies would also allow B to either spend less time in caregiving or less time in another necessary activity. He could use an income subsidy to hire someone to help care for his parent or child, to meet his own household needs, or to reduce his hours of paid work (or some combination of the three). By reducing the amount of time that B must spend in some combination of these three necessary activities, an income subsidy could allow B to meet his basic needs in the requisite amount of time.
Public provisions and income subsidies are, however, not sufficient to guarantee B his fair share of free time. To have the opportunity to engage in direct caregiving for his child, or if he objects to hiring someone to care for his parent or child (see 4.4), he must also be able to reduce his hours of paid work. As discussed in 6.5, a set of workplace accommodations for caregivers—periods of paid leave, extended short-hours schedules, and flexible or irregular work hours—would allow B to engage in caregiving and have his fair share of free time.26 An additional institutional measure that could increase B’s free time is to increase the synchronization between children’s school schedules and parents’ typical work schedules.27
Lastly, take C, who works thirty-two hours per week, but who has a disability that requires her to spend more time meeting her bodily and household needs than someone without a disability. Say it takes an additional thirty-two hours per week, so she has half of her fair share of free time. Again, in keeping with the two types of policies generally required to provide free time, both income subsidies and flexible work hours and disability leave regulations would guarantee her free time.
C’s free time deficiency may seem to be a difficult one to redress, for it results in part from the time she must spend meeting her bodily basic needs, needs that only she can meet. Yet, because one’s free time is the inverse of all the time one must spend meeting one’s basic needs, whether household, financial, or bodily, it is possible for policies to target her deficiency of free time indirectly, by reducing the amount of time she must spend meeting her household or financial basic needs. Income subsidies would allow C either to hire someone to help meet her household needs or to reduce her hours of paid work. Such subsidies are again, however, not sufficient to ensure that C is guaranteed her fair share of free time, for she must also be able to reduce her hours of paid work. This requires, as for caregivers, access to short-hours employment or periods of employment leave.
Accordingly, short-hours regulations may be required to guarantee free time to both caregivers and the disabled. In both instances, short hours are required only for those who have additional caregiving or bodily basic needs. Short work hours, therefore, may justifiably be provided only to these eligible individuals. However, because universal provisions may be easier to implement and have lower administrative costs than those targeted to only eligible employees, it would also be justifiable to guarantee short hours to all employees.28
Guaranteeing Fair Conditions of Free Time
These two types of policies—income subsidies or in-kind provisions and work-hours regulations—can guarantee that citizens have the requisite amount of free time. But, citizens’ shares of free time must also meet certain conditions. Consistent with the grounds of citizens’ claims to free time, on the basis of the effective freedoms principle, citizens must generally be able to make effective use of their periods of free time to exercise their formal liberties and opportunities. Consider three examples, all of whom have in total fifty-six hours of free time per week: a live-in housekeeper and nanny whose free time is divided into fifteen minute periods because of the nature of her responsibilities; a factory worker whose free time does not occur on a predictable schedule because he is regularly required to work overtime on short notice; and a retail employee whose free time occurs during weekdays because she is required to work weekends and evenings. Though such individuals do have the requisite amount of free time, they do not possess this time on conditions that allow them to effectively use it to exercise their liberties.
Two conditions must obtain. First, as I argued in Chapter 5, for effective freedom of association in particular, one must have reasonable access to sufficient periods of free time shared with a significant portion of those with whom one currently associates and might associate. This condition may be realized in a variety of ways, including by guaranteeing citizens abundant free time, work hours flexibility, or a common period of free time, as realized by Sunday free time laws.
Second, one must either have discretion over when one’s free time occurs, or if one has limited discretion over the scheduling of one’s free time, one’s free time must occur in generally usable periods and on a predictable schedule. To take an example, in order to use one’s free time to exercise one’s political liberties, say by volunteering with a campaign for a shift knocking on doors and distributing pamphlets, one must possess a period of free time of sufficient duration to engage in this pursuit and one must be able to make plans and reliably commit to the shift. The greater the degree of discretion one has over when one’s free time occurs, all else equal, the greater one’s ability to make effective use of one’s free time for the exercise of one’s liberties. Though some citizens have a high degree of temporal autonomy, most citizens have limited discretion over when their free time occurs as a result of both internal and external constraints. Of particular importance for theories of justice, most citizens have limited discretion over when their free time occurs on account of their terms of employment, specifically their work schedules.
One way to meet this condition is to increase the degree of discretion employees have over their work schedules. Indeed, employee-initiated flexibility over work scheduling has increased to a significant extent over the past quarter century in developed economies. Insofar as this trend has made employees’ free time more valuable to them, as it allows them greater opportunity to use their free time in pursuit of their chosen ends, it is to be welcomed. Increasing employees’ discretion over when their free time occurs is, however, unlikely to be adequate. Individualized, flexible work schedules are economically costly to provide to many employees (given the costs of employment discussed in 4.4) and may be difficult if not impossible to provide to many more (given that some work must be done at certain times of the day and/or with co-workers). To some extent, to counteract these structural market features that favor uniform schedules, the state is justified in incentivizing employers to offer more employee-initiated flexibility in work schedules, but such incentives neither can do the impossible nor ought to be instituted at any cost.
Thus, for those employees who have limited discretion over their work schedules, their free time must occur in periods of sufficient duration and at predictable times. At the level of public policy, this condition requires that, for instance, employees be entitled to sufficiently long periods between work shifts and to regular or advance scheduling of work shifts. This condition also justifies restricting employers from requiring that employees be “on call” or responsive to work demands during their free time. As with maximum work hours, employees could have a waivable right not to work irregular or “always on” hours. Public policies could also require or incentivize employers to limit after-hours work communication. To the extent that unpredictable and on-call work schedules are necessary, as with work during common periods of free time, they could be shared on rotation.
To summarize, if x is the fair share of free time, insofar as it is possible to realize, one (1) must be able to meet one’s basic needs in (24 – x) hours per day, and (2) must be able to choose to spend no more than (24 – x) hours per day meeting one’s basic needs. Furthermore, (3) a sufficient portion of one’s free time must be shared with one’s current and potential associates, and (4) if one does not have discretion over when one’s free time occurs, it must occur in generally usable periods and on a predictable schedule. A just society must meet these four parameters, and, as indicated here, there is a wide range of possible mechanisms to do so.
7.4 FREE TIME IN THE JUST SOCIETY
Depending on the choices citizens individually and collectively make, about both the weight to give free time and how to spend it, the patterns of time use in the just society may take a range of forms, from something recognizable to something only distantly imagined, like the stationary state welcomed by J. S. Mill, in which all are relieved from toil and can “cultivate freely the graces of life,” or the futures seen by Bertrand Russell and J. M. Keynes in which all work only three or four hours a day.29
The essential feature is that in the just society all citizens would have their fair shares of free time. All citizens would have time not consumed by meeting the necessities of life, time that they could devote to their own pursuits and commitments, whatever those might be.
1 See Stanczyk, “Productive Justice.”
2 On the conflict between economic growth and leisure time under capitalism, see G. A. Cohen, Karl Marx’s Theory of History: A Defence, expanded ed. (1978; repr., Princeton: Princeton University Press, 2000), 296–325 and Van Parijs, Real Freedom for All, 186–233.
3 Francine D. Blau and Lawrence M. Kahn, “Female Labor Supply: Why Is the United States Falling Behind?,” American Economic Review 103 (2013): 251–56.
4 For a discussion of this conflict, see Freeman, Rawls, 112–15, 133–34; Freeman, “Capitalism in the Classical and High Liberal Traditions,” 47–52; and Samuel Arnold, “Work as It Might Be: A Theory of Justice in Production” (PhD diss., Princeton University, 2011), 179–81.
5 Rawls, Theory of Justice, rev. ed., 80.
6 The second and third approaches might converge if the determination ought to be made democratically by citizens deliberating from the perspective of what it would be rational for the representative least advantaged individual to prefer.
7 Bertrand Russell suggests this approach, recommending a “popular vote to decide,” at regular intervals, “whether more leisure or more goods were to be preferred.” Russell, “In Praise of Idleness,” in In Praise of Idleness: And Other Essays, (1935; repr., Abingdon: Routledge, 2004), 10.
8 Rawls, Law of Peoples, 117.
9 Ibid., 107; Rawls, Justice as Fairness, 67, 159; J. S. Mill, Principles of Political Principles of Political Economy and Chapters on Socialism, ed. Jonathan Riley (Oxford: Oxford University Press, 1994), 124–30.
10 Rawls, Theory of Justice, rev. ed., 257–58. This account is offered by Freeman in Rawls, 111–14, 133–34 and “Capitalism in the Classical and High Liberal Traditions,” 47–52.
11 John Tomasi, Free Market Fairness (Princeton: Princeton University Press, 2012), 190.
12 The few exceptions are for occupations in which long work hours could negatively affect the safety of others, as, for instance, with commercial motor vehicle drivers and aircraft flight crew members.
13 Ariane Hegewisch and Janet C. Gornick, “Statutory Routes to Workplace Flexibility in Cross-National Perspective” (Institute for Women’s Policy Research and Center for Work-Life Law, 2007), 27–28.
14 Though individual states can supplement the FLSA with their own statutes, only a small number of states have additional overtime regulations.
15 Lonnie Golden and Helene Jorgensen, “Time after Time: Mandatory Overtime in the U.S. Economy” (Economic Policy Institute Briefing Paper, 2002).
16 The full list of exemptions also includes a wide array of occupational categories. Janet C. Gornick, Alexandra Heron, and Ross Eisenbrey, “The Work-Family Balance: An Analysis of European, Japanese, and U.S. Work-Time Policies” (Economic Policy Institute Briefing Paper 189, 2007), 3.
17 Heidi Hartmann, Ariane Hegewisch, and Vicky Lovell, “An Economy That Puts Families First: Expanding the Social Contract to Include Family Care” (Economic Policy Institute Briefing Paper 190, 2007), 7.
18 Kathryn Moss and Scott Burris, “The Employment Discrimination Provisions of the Americans with Disabilities Act: Implementation and Impact,” in The Future of Disability in America, ed. Marilyn J. Field and Alan M. Jette (Washington, DC: National Academies Press, 2007), 453–56; Richard V. Burkhauser and Mary C. Daly, “U.S. Disability Policy in a Changing Environment,” Journal of Economic Perspectives 16 (2002): 213–24.
19 For a discussion of how to design such a waivable employee right so that it protects employees’ rights both to choose to work longer hours and to choose not to, see Cass R. Sunstein, “Human Behavior and the Law of Work,” Virginia Law Review 87 (2001): 205–76.
20 The United Kingdom, for instance, permits its citizens to opt out of the European Union’s maximum hours regulation (of 48 hours per week).
21 Schor, Overworked American, 142–43.
22 A prohibitive maximum hours regulation would block employees from working longer than the maximum hours with a given employer, but would not necessarily block additional paid work undertaken with a second employer or independently, so long as this secondary employment would not produce the competitive pressures that undermine other citizens’ ability to choose not to work longer hours.
23 To be clear, what a maximum hours law must protect is not the choice to work whatever hours one prefers, or the choice to work no more than is necessary to meet one’s basic needs, but specifically the choice to work no more than is necessary to meet one’s basic needs so that one has one’s fair share of free time. If A earned $100 an hour, she would have to work less than five hours per week to meet her financial basic needs, but she is not entitled to work only five hours per week, for such an entitlement would guarantee her more than her fair share of free time. This point highlights a difference between my approach and Goodin et al.’s, which more generally recommends policies that “ensure that people have, insofar as possible, a free choice of the number of hours a week they work in paid labour” (Discretionary Time, 267; see also 102–5, 112).
24 I discuss both policy options from the perspective of B, assuming that B’s parent has a sufficient amount of free time and is not, as such, entitled to any additional free time benefits. The policies could be designed, however, with B’s parent as a beneficiary.
25 See Hartmann, Hegewisch, and Lovell, “Economy That Puts Families First,” 11–13.
26 For an overview of alternative work arrangements for caregivers in high-income countries, see Hegewisch and Gornick, “Statutory Routes to Workplace Flexibility in Cross-National Perspective,” 14–18.
27 Joan C. Tronto, Caring Democracy: Markets, Equality, and Justice (New York: New York University Press, 2013), 166.
28 Belgium, for instance, entitles all workers to a one-year sabbatical over the course of their working life, with the option of stretching the sabbatical over five years at 80 percent of one’s normal hours. In Finland, in an effort both to provide reduced work hours and to address unemployment, all workers are entitled to part-time hours with partial wage replacement if an unemployed person is hired to replace their reduced hours. Hegewisch and Gornick, “Statutory Routes to Workplace Flexibility in Cross-National Perspective,” 19–20.
29 Mill, Principles of Political Economy, 124–30; Russell, “In Praise of Idleness,” 1–15; John Maynard Keynes, “Economic Possibilities for Our Grandchildren,” in Essays in Persuasion (1931); repr., New York: Norton, 1963), 358–73.