I once read a description of the Code Duello, the formal set of rules that existed to govern duelling, which stated that it was a finely crafted, well-thought-out code which, in its entirety, should not exist. It seems to me the same is true today of the whole system of law that regulates trade unions and how businesses must deal with them.

The Code Duello assumed belligerence, and tried to tamp down unfair aspects, while still leaving duellists free to kill or maim each other. It had rules for how challenges were to be given, how “seconds” were to be chosen, who had the choice of weapons, and so forth. In modern law we just assume belligerence is bad, and we severely punish aggressors, as well as letting their victims defend themselves, even if necessary with deadly force.

Union law, likewise, assumes belligerence, in the form of strikes and such, and tries to tamp down the worst excesses. It dictates that a business can’t fire someone for being a union organizer, even if he’s being a total lying asshole about it. A business can’t threaten to close a factory if the employees unionize. (They can still close the factory; they just can’t threaten to do so.)

Those, and a large number of other pro-union rules, give so much power to unions that companies hardly ever shake off their grip. As a percentage of workers in the US, unions cover something like 10% these days, down from about 30% in the 1950s; but this trend has been driven not by companies busting unions but rather by companies failing and being replaced by non-union companies. In those new companies, unionization votes often fail due to workers themselves thinking of unions as having too much power and as endangering the company’s existence. (That, of course, is if the new companies are in the US, which they often aren’t: union law has helped to drive whole industries abroad.)

But union law is not all one-sided: it imposes serious restraints on unions, too. Yale graduate students who were trying to unionize were at one point surprised to find that they couldn’t conduct a “grade strike”, withholding grades that they produced from their work as teaching assistants. The courts had to explain to them that selective strikes were not allowed, or rather not protected under union law. To refuse to do just one part of their job would be interfering with management’s prerogative to run the company. For the same reason, workers are restricted from using their power to bargain over things other than “wages, hours, vacation time, insurance, safety practices” and such.

This is perhaps necessary in a system where unions are otherwise given so much power that they could just boss companies around willy-nilly if they were allowed to. But if union law weren’t excessively pro-union in the first place, for a union to strike not over wages and working hours but over corporate direction could be viewed as a selfless and noble act: rather than just trying to line their own pockets, they were risking their jobs to do what was good for the company or perhaps for society at large. Or it could be viewed as a stupid demand. But even so it would command a certain level of respect, as being a place where the strikers could actually be persuaded by a proper counterargument, rather than a place where they’re arguing their own pocketbook and no argument will suffice. (In Germany, union law takes the opposite tack, formally giving unions power in in management decisions. This may not be the best system either, but it has not destroyed German industry.)

Union law also has rules for how elections are to be conducted for union leaders. But the blowhard who is most popular with the workers isn’t necessarily the best person to run the union. Absent union law, unions could make their leadership choices in all sorts of other ways too.

Because unions still would exist even if the whole concept of a union were extirpated from the law, the way that the whole concept of a duel has been extirpated from modern criminal law. Today, being in a duel doesn’t give anyone special rights or obligations; it’s just another fight. Management-worker disputes could be the same way. Management does sometimes try to unduly exploit workers, and workers do sometimes organize to get more than they they deserve; but they don’t need to go at each other in this stylized early-1900s fashion.