The logic of capitalism and the tactics it uses to maintain itself
Capitalism is an ugly and brutal system. Its working kills and sickens people and is bringing us ever closer to environmental disaster. Many people are on the front lines, warding off its excesses and agitating for change. Some of these struggles are won but this does not put an end to capitalism. Capitalist relations of production are still ruling the roost. Why?
First: it is a system. It is a holistic system. It pervades every aspect of our lives. Its logic penetrates our economic and political decision-making, our cultures and social relations, everything. And we, the non-capitalists not only live within the system but do so according to the logic and rules which have evolved to keep it in place.
Second: it is a system based on a number of assumptions which guarantee its viability. Foremost is that it is not only acceptable, but vital, for the means of production, that is, the wealth of a society, be unequally divided. And so it is. A few own and control the means of production, distribution, transportation and communication. The right to own demands that the right to own private property is not to be challenged, not to be challengeable. How anyone came to be an owner of such property is not to be questioned.
This enables the owners to decide how to use that property. As private owners they determine how to use their wealth. Their holy grail is to accumulate more property, more wealth. Associated with these starting positions, there is to be a right for all individuals to enter into voluntary exchanges of products and services, to enter into legally enforceable contracts with each other. These are the essential, not-to-be-dislodged building blocks of the system
Third: while, as a system, it is holistic, in its actual workings, it divides and fragments people who are caught within it. This is dictated by capitalist logic which is based on the accumulation by private individuals of socially/collectively produced wealth in a competitive setting. It necessarily involves the taking by individuals of value produced by others; it necessarily forces all to seek to win a competition, that is, to seek self-advancement at the expense of others often just like us, to take advantage of nature whenever it suits our selfish purposes. This is what makes it such an ugly system. It drives wedges between, for instance, private and public sector workers, workers and environmental activists, between local workers and workers in other nations, between old and young, between men and women and children pitted against each other for scarce job, between people of different racial, national, ethnic, religious origins and beliefs, etc.
Fourth; people experience the harsh outcomes of the normal working of capitalism differently and need different remedies. Capitalism, as a system, can adapt to these discrete and unconnected demands and adopt some of them , provided, of course, that they do not challenge the fundamental pillars that maintain capitalist relations of production. Thus, some of the gains made, while crucial to the vulnerable who are seeking protection, will not lead to a rejection of the system which must be discarded. They even may help capitalism maintain itself by proving that it is willing to make some concessions, to be somewhat benign to some people in some circumstances.
This is one of the more formidable weapons in the arsenal of capitalism and capitalists. There is a need to de-weaponize the system.
We are sensitive to the delicacy. People who have needs must be helped NOW. This is non-debatable. But for those who understand that it is the system, rather than a momentary blip, which leads to hurts and harms, that is, for anti-capitalists, it is necessary to think about how this ugly, brutal system keeps itself alive and dominant as it inflicts horrible damage on people and the planet.
We want to invite people to engage in a discussion as to how to marry their struggles for relief to arguments and actions which challenge the premises and tactics which capitalism uses to maintain and perpetuate its reign. To use the phrase of the social scientist Andre Gorz, we want to encourage a discussion and, from there, a movement which will turn pushes for reform to become struggles for non reformist reforms, that is, a stage on the way to transformative change.
Immunity for government and immunity for LTC’s
It is understandable that, as people are angered or face hurts and oppressions, their need for a response and remedy involve them in seeking a way to re-form the situation which has led to their anger and/or hurts. The reforms they seek may be of three kinds. They may address a loss of what had been a political gain, that is, to return to what was and maybe improve the old circumstance a little. They may just want to improve what is by improving entitlements or processes. If that is the nature of the political reform action it can do no more than leave pre-existing power relations intact. The other kind of reform politics does not only seek an ameliorative remedy but, simultaneously, it will be part of a larger campaign to attack the structure and fundaments of the system that gave rise to the anger-creating/injuring conduct. In Canadian political economic terms, the first two kinds of reform leaves capitalism largely unscathed. The third has the potential to make inroads on its dominance.
A recent controversy around the Ontario government’s initiative to grant itself and some long term care facilities immunity from potential liability to injured people, brings out the different nature of these reform activities. The point this discussion hopes to bring out is that it is significant for progressive activists who are eager to bring about transformative change to interrogate the essential nature of the reform struggles in which they engage. In the case of the immunities granted to government, reform activities have no transformative potential but will do no harm, while struggles to reverse the immunity bestowed on LTC’s may bring some minor benefits but also may consolidate capitalist ideology and power.
Part I: Government immunity
In October, 2020, the Ford government introduced legislation that drew the ire of many, especially those who are desperately fighting on behalf of the warehoused elderly and of health care workers during the pandemic. Those people have been disproportionately affected.
Bill 218, Supporting Ontario’s Recovery and Municipal Elections Act, contained (i) provisions that extended Crown immunity in a radical way and (ii) less radically, limited the right to bring civil actions for damages against individuals, corporations and the Crown in respect of COVID-19 related injuries incurred in Long Term Care facilities.
In this Part, the focus is on the enlarged Crown immunity segments of the legislation.
It is important to understand a little about the origin of Crown immunity. During the days when the expression “The Crown” signified that a royal house was the effective government of the day, English law held that, whatever the king or queen did was beyond the law’s reach. There was to be no questioning of the monarch’s prerogative, as kings or queens were more sovereign than anyone else. When royals were displaced by elected governments, such a rule no longer made any sense. Unlike kings and queens, mere politicians (even when they were still mostly lords and barons) could not claim a divine right to rule. Gradually, non-wealth owners got the vote and the composition of legislatures changed. Still, it was felt that, if these more representative governments were required to enact policies on behalf of the people, they needed some protections. Their decisions would be better if they knew they could not be legally second-guessed. Statutes were enacted to embed this idea. Simply they stated that, unless a statute explicitly provided that its provisions bound the Crown as well as other people, the government would have immunity for decisions which might make others covered by those statutes liable in law. After all, if the voting public did not like the policies, they had a remedy – they could vote the government out of office when they next got an opportunity to do so.
The justification for such immunity, then, is that governments need to act fearlessly when designing polices. It was quickly realized that such protections were not justified if governments were not designing policies but were merely implementing existing policies. A refusal to immunize them if they did things badly, rather than designed things badly, would not deter them from planning fearlessly. It was reasonable to hold them liable for bad operations of fearlessly created policies. Over the years, there has been much litigation about what the differences are between making a policy decision and making an operational decision. Just a few weeks ago, the Hudson Bay Corporation (HBC) went to court to object to the irrational design of the Ontario government’s lockdown policy. Its specific argument was that the policy allowed big box stores that sold groceries to remain open while forcing closure on retailers like Hudson’s Bay. HBC said that, if the government was trying to stop a lot of people being in one place, the logic that forced HBC to close should also apply to Walmart. The court thought that Hudson’s Bay was correct: the policy was idiotic but that a court could not second-guess an elected government’s policy-making, no matter how ineffective it might be.
This kind of legal finessing need not detain us here. The upshot is that, for the longest of times, governments were on the hook for carelessly or heedlessly implementing democratically established policies. The Ford government wanted to limit even this narrow basis for legal responsibility. Bill 218 extends its immunity to badly carried-out operations. It is unsurprising that this has made many people on the frontlines angry. This is a government that demands that everyone take responsibility for their conduct during the pandemic and then does everything within its powers to ensure that it will not be responsible for any of its operational decisions.
And it goes beyond blatant hypocrisy. The grant of immunity which the government bestowed on itself was written to give it retroactive effect. This meant that the government was not only warding-off future liability for its incompetence or worse but now also could not be held liable for past operational wrongdoings by government. As it happened, at the time Bill 218 was introduced, there were 13 outstanding actions against the Crown in Ontario. They had been launched between 2016 and 2019. They included allegations brought by the victims of the tainted blood scandal which had horrified the public. With one quick legislative move, the Ford government had got rid of a whole lot of liability on its books and inflicted a great deal of disappointment and material loss on people who had been injured by government failures and neglect.
As noted, modern immunity for government is called Crown immunity because it is an adaptation of the immunity once enjoyed by monarchs. It was called the prerogative of the Crown. The word ‘prerogative is defined as a special power possessed by specific people such as gods or kings and queens. Is it not interesting that the residual management power clause in collective agreements is often called the prerogative of management clause?
These aspects of the enactment of the grant of immunity to government are proper targets for all who care about democracy and the accountability of government. And that is everyone. Progressive and more conventional activists should join together and target the get-out-jail card that the Ford government has been willing to deal to itself. A demand that government should accept responsibility for the way it conducts itself as it implements democratically made decisions is the least the voting citizenry has a right to expect. It would also help to put a brake on the general tendency for elected politicians to refuse to accept responsibility for the conduct which they notionally control and should be monitoring. The recent Pontius Pilate handwringing by Trudeau when he was caught favouring SNC-Lavalin and his willingness to sacrifice other politicians is one example among many. Ministerial responsibility is more a slogan these days than a reality. The Ford immunity legislation exacerbates this dismal tendency.
Still, a demand that Bill 218 be reformed to go back to government responsibility for operational conduct would be just that, a reform. It would do nothing to bring about radical change, it would do nothing to diminish the power of capital. Crucial here is that this kind of reform leaves private power totally unaffected. In sum, support for this reform is useful to hold arrogant politicians in check and will do no harm to the more important project to fight for transformative change.
This then is an unusual example where reform may do some good and do no harm. It might even be cathartic for progressives as a fight over this reform might even embarrass – if that is possible – the arrogant Ford government. A good fight, but not a major one.
Part II: Immunity for LTC’s
Bill 218 also provided that no cause of action can now be brought against any person whose act infected with or exposed another to coronavirus. This protection against being sued is available to people if they had made an effort to act in good faith, that is, had made an effort to comply with existing coronavirus regulated standards and if their conduct did not amount to gross negligence.
The intended outcome is clear. The operators of LTC facilities are to be shielded from actions brought by people who claim that their infection, illness or death flowing from it, is due to a failure by a LTC to take reasonable care. It must now be shown by them that the failure to take care was grossly negligent, not just a mere breach of the normal standard of care.
Understandably this has maddened the public. Its attention has been drawn again and again to the shocking treatment of the vulnerable in long term care and of the demands made on, and perils faced by, the care workers who look after them. Now these at-risk populations and their relatives are being told it is being made more difficult than it was to seek a measure of justice and fair compensation. Activists in the field have excoriated the grant of this partial immunity. And they are right to be vexed: it is a slap in the face of already embattled people.
Here it should be noted that the new impediments to the bringing of civil actions may not be as forbidding as the government’s adversaries and the legal profession claim it to be. Gross negligence is a rather vague term. Courts have a lot of room to interpret it. Nonetheless, the chilling effect of the raising of the bar for would-be complainants is real, even though many of the shocking conditions which have been reported and which may be related to making people more vulnerable to infections would amount to gross negligence. For example, in the early phases of the pandemic, LTC residents were found to have been dehydrated, malnourished, drugged with psychotropic medications, all making them ‘easier’ targets for the virus. Or, instances where a resident tested positive shared a room with one who had tested negative; or a finding that an Extendicare facility had not implemented an infection control programme for its staff, or documentation of staff not having proper PPE available when attending the people in their care…If residents or workers exposed to these risks became ill and determined to bring a legal action they might well be able to persuade a judge that a LTC facility had not acted in good faith and had been grossly negligent. Still, inasmuch as this legal nit-picking suggests that the grant of immunity may not be as effective as many people fear it is likely to be, it does not gainsay the fact that the government is determined to dissuade affected and infected people from pursuing some legal rights.
The question is: why? Why is a government so eager to use its power to deny what its constituents think of as a basic right?
One reason, of course, is to get itself off the hook as much as possible. Any action against a LTC facility notionally under its legal control will draw attention to the fact that it, and its predecessors, have done much to privatize long term care. As for-profit care homes have had some of the very worst outbreaks, this will remind the public that, as part of their promotion of private services, it, and its predecessors, have been lax when determining who should be licensed, that they have actively worked to diminish inspections and the monitoring of obedience to such standards as do exist. This is not a good look.
As well, the potential for civil actions will reveal a rather ugly truth about this government’s and its predecessors’ mean approach when it comes to protecting workers in general, and health care workers in particular, from losses suffered in the workplace. Its workers compensation scheme is not as protective as it is thought to be.
Workers compensation schemes came into being in the early 20th century. They are basically insurance schemes where premiums are paid by employers based on their industry and their own experiences when it comes to the incidence of injuries in their workplaces. When an injury occurs, the worker is entitled to income replacement provided the injury is one that is related to work. The boon for workers is that they have to prove no more than that. Previously they had to go to court to get compensation and there they fared very badly. (Here it is to be noted that, while workers compensation schemes are, rightly, seen as a working class benefit, the schemes also deliver positive benefits to employers: a stable cost for injuries paid-for on a socialized basis gives them a certainty they appreciate so much that made the compromise leading to the creation of workers compensation schemes attractive to them.)
In order to get the desirable scheme which made getting income replacement more easily available, workers gladly traded their right to sue in a court away. An injured worker covered by workers compensation can no longer sue an employer in respect of hurts inflicted at work.
This legal circumstance should mean that the Ford government should not have been worried about health care workers suing their long term care employers. But it was, and for good reason.
It turns out that Ontario’s workers compensation is nowhere as protective as it could be and many people wrongly think it is. First, it does not accept the idea that, if a worker has contracted COVID-19 (a new genre of disease), it should automatically be attributed to the workplace setting. Hence the infected workers cannot count on being able to get compensation for income loss merely by showing they have become ill. Second, in order for workers compensation to apply, the industry in which they work must be covered under the Act. Ontario has a shockingly low coverage, leaving many workers to the mercy of the judicial system which, historically, has served them very poorly. Whereas in Quebec 93.17% of the workforce is covered by workers compensation, that number goes down to 74.8 % in Ontario.
More relevantly and more importantly, while public long term care operators’ workers are covered by the workers compensation scheme, private for-profit operators are not.
Another cat is out of the bag. Many of the health care workers employed in some of the most dangerous long term care facilities may be forced to sue if they become sick. A government, unfriendly to the working class, likely would not like the spotlight this would throw on the lack of protection so many workers have. More, it would be most unhappy about the fact that capitalists (to whom it is friendly, to say the least, given the close ties between Conservative Party members and the LTC private operators) might have to incur unusual costs.
Thus far, the discussion strongly suggests that it would be worthwhile for progressive activists to wage a struggle to overturn the government’s grant of immunity. It would expose the viciousness of the government and put some LTC COVID-19 victims and workers in a better position to be compensated for their losses. It might also help educate the public about the lack of oversight of operations that had behaved exceedingly badly. These would all be very good outcomes.
The fight to reform the immunity granted to LTC operators could yield some very positive results.
But there is a downside.
The action in negligence which is sought to be curtailed is based, first, on individualism and second, on private initiatives. Immediately bells should be ringing: is this a useful way to deal with a social problem?
To succeed an injured (here infected or someone acting on behalf of dead person) victim must prove on the balance of probabilities that another person (here the LTC operator and/or its executives and managers and/or its workers) owed them a duty to take care, that that duty was breached by not meeting an unspecified standard and that this breach led directly to the infection or death. The burden of proof of all these things is on the victim. It is the hurt and injured who must calculate whether they will win, how much they might win and set this off against the costs of undertaking the gamble. Note here that, in a typical negligence action, one-third of all damages awarded will go to pay lawyers and the judicial system. Obviously, requiring victims to prove gross negligence makes that gamble even more fraught and this is what motivated the Ford government and incensed its opponents.
But, even if these opponents manage to overturn the immunity for LTC operators provisions, and even if some victims had success when suing LTC operators in old-fashioned negligence, would much be gained? Such victories would yield victims some compensation. That would be good. But note that the damages awarded would be calculated on the losses inflicted on the victims. The bulk of that consists of lost income and lost potential income. For the retired residents of LTC homes this would be a pittance. They could not point to lost income or to a reduced potential to earn income in the future. And should they have died, law awards a flat, paltry sum for their death, plus a sum for burial expenses. Their dependents will not be in any position to claim that they have lost a stream of support. For health care workers (those not covered by workers compensation and able to sue), this calculation might lead to more of an award. But here, too, it must be remembered that for many of them, despite the lower burden they would have under the old law, the gamble might not be worth taking as the income lost and income potential is low. More, many of them will be employed on temporary basis and/or work at several sites where infections reign making their cases against any one problematic.
Still, even if damage awards might not be all that satisfying, a victory in court might be. It will identify individuals who behaved wrongfully; it may deter them from such behaviour in the future and, attaching legal blame to them may put other people like them on notice. In addition, identified individuals, as well the nature of their conduct, will be stigmatized.
A sense of justice and deterrence may be fostered. These are said to be important features of the right to bring a legal action. But the hopes that the system will work in this way are dimmed by some other facts of contemporary capitalist life.
First, the operators of these LTC facilities are corporations, legal entities without any sense of right or wrong. They think nothing, feel nothing. They will not learn any lessons, nor will their counterparts in the industry. Has Boeing decided to go out of business because it has been fingered as indifferent to human life? Or Nestle? Or Dupont? Or SNC-Lavalin?
Inasmuch as corporations have to pay damages, there is a cost to the business. This does not come out of directors’, executives or managers’ pockets; it does not come out of shareholders’ pockets. By legal definition, the culpable corporation is a separate person. It pays for harms done by it. It will only be happenstance if it indirectly affects the fortune of any other actors. Executives and managers will not have to pay on behalf of the corporation and shareholders will not have to pay back any dividends they were paid. Basically, a successful negligence action against a corporation will not teach them anything, nor will their counterparts in the industry think any the less of them or of themselves.
Successful actions of this kind have little of the bite that so many people attribute to them. And such pain as the bite might cause is further diminished by the fact that all these operators carry insurance. The real costs of losing a negligence case brought by their victims is two-fold: one, a loss of reputation which might cost them future business and an increase in the cost of their insurance policies. The first (as already suggested) of these is not a very concrete problem. Corporate owners remain unknown even as specific facilities, operating under an appealing name such as Tendercare, are identified as wrongdoers. The general public is unlikely to know that a new operator with a fancy name is run by the same condemned corporation. The second, the cost of insurance is a concrete problem for them.
One of the reasons LTC’s were given some immunity against suit is that for-profit operators of LTC homes were facing higher premiums as a result of potential liabilities because of the pandemic, even if it was unlikely that many actions would be successful. In actuarial terms, however, the risks they would be facing have been increased by the pandemic. The rationale of the insurance business is that it will charge more in those circumstances. This was, and remains, the fear of the LTC’s: it may become more costly to do business or to set up new businesses. Businesses will not get loans or credit unless they show that they are covered against the materialization of certain risks. Directors and executives of for-profit corporations expect that insurance to cover them should a victim of their decisions win a negligence action against them (obviously another reason why the ability to sue does not work very well as a specific or general deterrent of careless behaviour). A return to pre-immunity days, then, would worry LTC operators and their executives as policies might become considerably more expensive.
Surely, the proponents of an attack on Bill 218 might argue, this makes it worthwhile to engage in struggle to have that immunizing, insurance-reducing Bill 218 tossed into the dustbin. It is a seductive idea but the nature of insurance, however, speaks against it.
Insurance is just a way for capitalists to collect deposits from a large number of people, including private firms. Those deposits are collected and create huge gobs of money. The insurance companies face the risk of having to pay out on the policies they write but they lay off some of the risks by selling their policies (at a discount) to others called reinsurers. For the purposes of this discussion, what is important is that large amounts of money are accumulated by insurers. They make their money, in part, by paying out less on their polices than they receive by way of premiums and this leads to the difficulties many individuals have when they actually try to collect on their insurance policy. In part, however, insurance companies make much of their profits by investing the huge sums of money deposited with them by investing them. They are an essential component of the financial industries that lubricate the workings of capitalist relations of production.
In the midst of the Industrial revolution, the maiming and killing in the workplace was horrific. Workers fought for legislation to protect their safety. The early Factories and Mining Acts were the result. They also had to go to courts to get replacement income as their disabilities had left them workless and penny less. In the courts they met class enemies: the judges. For decades, judges held that workers had voluntarily undertaken the risks of the workplace and therefore could not make any claims when risks materialized. Worse, courts also held that, if an injury was caused by another worker’s fault, the employer was off the hook because the injured worker should have taken more care when choosing to work at a place with such careless fellow workers. As well, judges held, if the injury could in any part, no matter how small, be attributed to the conduct of the injured worker, the worker could not bring any claim at all. It is this context that led workers to compromise their right to sue in return for the worker compensation schemes we have today. Is it not passing strange that progressive activists are engaged in a struggle to ensure better access to those courts which had inflicted so much misery on the working class?
This buttressing of capitalism is what will be fuelled by progressives who struggle to make it easier to use a system of private litigation to help victims of private profiteers get some compensation. From this perspective, the struggle to reverse the impacts of increased legal immunity of LTC operators may bring some minor benefits to individual victims while actually embedding the very structures of capitalism that create so many victims.
Might it not be better to re-focus all that anger and fury to demand public responses to a societal problem? Might it not be better to have all workers, permanent, casual and hired through temporary work agencies, covered by workers compensation? Might it not be better to force the workers compensations scheme accept that there is sufficient connection between working at a LTC operation and infections? Might it not be better to demand the end of for-profit delivery of elderly care? As a first step, might it not be better to struggle mightily for tougher oversight when granting licences to new private operators? Might it not be better to demand more stringent regulatory standards, tougher enforcement? All these goals are hard to achieve but their formulation alone raises questions, not only about the gross indifference to care all around us, but also about the rotten nature of the pillars of capitalism that allow such indifference to reign.
The two parts of this discussion of the Ontario government’s grant of more immunity for itself and the LTC operators are intended to invite anti-capitalists engaged in struggles to interrogate any reform battles in which they engage. The question we must ask ourselves is whether, when looking for relief for hurt people, are we perhaps embedding aspects of social relations that will help capitalism maintain and perpetuate itself. Part I shows that some reform politics do not run this danger; Part II demonstrates that they may well do so.