In particular, take the classic example of conspiracy law. At the turn of the century, unliked Britain, conspiracy law (the law of labor unions) still held that unions were illegal. This was maintained up until the New Deal when the NLRB was established. Witte, arguing in the 1920s, observed that over the latter part of the nineteenth century court injunctions were increasingly used against striking workers instead of holding full criminal trials. In fact, (I believe this is something noted in DuBois' Black Reconstruction though I'm not sure) the 14th amendment was more commonly applied to businesses during this time period than to blacks for racial crimes.
At any rate, the focus of this older tradition was on reforming law to give workers and unions a broader space for collective bargaining. Concentration was focused on the internal evolution of unions, law, and other institutions.
Interestingly, and I can't understand why this is the case, but there is another similarity among these early institutionalists (including Commons). They focused mainly on the postbellum period -- and in particular, on the 1870s and 1880s -- as crucial turning points in American capitalism. Forbath for example, while part of the "new" labor law history, also focuses on the postbellum period as central for understanding important debates in American economic history, including American Exceptionalism (he also uses many of the same themes as the old labor historians, including the issue of injunctions). I call attention to this fact because the social historians of the 1960s and 1970s, we will see, are much more interested (and rightly so, I think!) on antebelllum developments in political economy.
This was the older "camp". The "new" labor history was in part influenced by the social historians, but it is also more generally a product of the rise of leftists in academia in the 1960s and 1970s. In terms of the work of the social historians, the "new" labor history was inspired by Christopher Hill, David Montgomery, Herbert Gutman, and others. These social historians were all interested in the economic and cultural causes and effects of capitalism, to varying degrees. (Some of the names associated with social history which I mentioned last time are also important here.) Thus, part of the project of the new labor law historians was to find either a solid framework in which to discuss law and society, or to simply integrate some of the sources of data used by social historians into their analysis. As I mentioned on Monday, some did have explicit theoretical models, and the influence of the Marxian tradition in academia aided this trend.
Of course, the question is not simply to tie the two together. The more general point is the law's social-historical importance both theoretically and with respect to particular time periods and places. People are still debating the social-historical importance of the state. And when constructing our own ideas, we have to be careful, of course, of the extreme opposite of the new institutionalists -- i.e., we cannot simply assert that market or agent behavior is epiphenomenal to the law! the best labor law histories are therefore very clear about the place of the law in history, and try to tell stories which weave economic processes with political ones. But it is definitely much harder than it sounds. Even Christopher Tomlins -- one of the premier labor law historians of the past 20 years -- was criticized in his earlier work for focusing too much on rules and internal mechanisms of the law. Certainly they were Marxist-oriented conclusions and much more politically driven towards radicalism than the "old" labor law historians, but his research was still largely sterilized from underlying socioeconomic forces.
To appreciate the socio-historical relevance of the law, let's deal with an analytical problem which might get at a solution to this issue. Let's say we want to understand the "conditions of existence" of capitalism. The rise of capitalism involved the destruction of some of the aspects of the old system (stage 1: household ownership of the means of production, work primarily from the home, seasonal fluctuations in output, work for use instead of profit), as well as the creation and legitimation of new features: stage 2, capitalist social relations (wherein workers sell their labor in exchange for a profit), ownership of the means of production, a new organization of work. The processes at work in both arenas are, in turn, cultural, economic, nautral, and political in nature.
We have stage 1 and 2, with 4 aspects working between them.
To narrow down our thinking we're going to think of this transition in terms of the limiting factor of politics, and discuss in what ways keeping our foot on politics limits the transition between the two stages. In other words, let's think of some of the economic, natural, and cultural factors contributing to the evolution of stages.
Economically, the development of the power loom allowed employers to make cloth faster and in greater quantities than home production. This is an economic advantage of working in the firm. The power loom was essentially able to out-compete home production, leading to the general decay of home production. So, workers are left with much less to do in the home. Now, as long as workers don't leave their homes (say, for the west), you have a bunch of people at their home with nothing to really do. If the means of production are gone and they don't have any property, those are economic freedoms to leave. Consider the religion. If there are changes in the religious atmosphere, such as a cultural norm resistent to laziness, then there may be cultural freedoms to leave, as well -- religion spurs the productive spirit to leave the household. Or, the family relations are broken down. Natural freedoms are also created, since in the winter time, when there is little to do on the farm, freeing up some laborers to go to the new factory.
At any rate they join a factory and start to work. My point is that they were free economically, naturally, and culturally, to leave home. What could still be holding them back?
There are political freedoms to consider, since a variety of laws and political norms may entrench certain power interests with a vested interest in keeping workers home, such as feudal interests or (as with Steinfeld) indentured servitude's status in the law (if it were still legal, this would create a problem for employers who needed a free labor force).
The question is where do the political freedoms come from? And this is the first half of the story, the first stage, addressed by Steinfeld as well as many others. The question, simply put, is what kind of political justifications or reasons can we make for the freedom of workers to leave their homes for the factories? Part of Steinfeld's contribution to the story is that the political freedom is not all about rights, or political freedom. Rather, it's that such political freedom to leave the home is also contingent on law. And in fact, law actually mattered because law played a role in defining the freedom of the worker.
That's a pretty interesting idea. If the American Revolution wasn't this outburst of world-changing individualism (in the sense that while it may have been about individualism it didn't change everything else about institutions in the process), but rather that individualism instead needed also to be changed and accomodated by law, then we've added another part to the story.
We are also, at this point, confronted with a very important choice. Still in stage 1.
On one hand, we can assume radical individualism of the Revolution and then say the law still had to work out the legal status of political freedom. This is the path taken by Steinfeld.
On the other hand, we can assume some other significances of the Revolution and then ask what role the law played in freeing up the worker in that case. This is the path taken by Tomlins and some others. (Mostly Tomlins. He is a key figure in the new labor law history, having just finished a 600+ page tome on the history of labor and law in the U.S. from colonial times to the Civil War.) We probably won't get to it in this post, but it is a highly intriguing idea, especially with reference to the precise social-historical relevance of law to labor.
As I said, Steinfeld is focused on the first of these two points. In short, he argues that the American Revolution had an "ambiguous" impact on the development of free labor because law still needed to sort out what it meant to be "free" in an employment relationship, from the standpoint of Master-Servant law. The interaction between the two processes of law and work (i.e. the entrypoint for Steinfeld's discussion) is indentured servitude. [Interestingly, the role of indentured servitude has been called into question empirically by some later law and labor scholars. What are the implications?] Citizens increasingly believed that indentured servitude was too close to slavery and thus incompatible with the ideals of "possessive," or republican, individualism. Thus the case of Mary Clark is a turning point in the labor law because this is a woman of color who had the right, according to the courts, to both voluntarily enter into, and voluntarily serve, in a labor contract.
However, Steinfeld believes we have a slight problem, even with this groundbreaking result -- notice that Steinfeld keeps "free" in quotations precisely because the economic power of workers was still reduced in this process. In particular, in individuals' arguments for freedom based on notions of self-government (a political kind of freedom, borrowed from the Revolution's ideals of republican individualism) led to it being much harder for these individuals to argue for freedom based on the ownership of property. I.e., they had a political right to dispose of their persons as they saw fit, but the propertied notion of freedom was reduced to another sphere -- that of the economic sphere. It therefore became increasingly harder for workers to argue for freedom in the economic sphere -- i.e., their freedom vis-a-vis the work process (since they sold their labor power as property).
This particular process supposedly came about because journeymen and other laborers argued on the grounds that they should be treated as juridical equals in the employment contract, not on the grounds that they cannot be directly compelled by their masters (148). Nevertheless, this is something laborers (read: indentured servants...) apparently "achieved", and it is very important to realize this:
What was left to masters was 'persuasion.' Masters would no longer be entitled to rule, to use law directly to compel workers to do their wills. Instead, they would be limited to 'influencing' the decisions that workers were entitled freely to make for themselves, to structuring the 'incentives' workers faced. But it is important to be clear about the significance of this influence. Employers would continue to have power, derived from law, to control workers. Only now this power would take a different form: it would not be based on rights physically to coerce workers but would be based instead on rights masters had under property, contract, and labor law. These legal rights would constitute the basis for the economic pwoer they would continue to wield over wage workers. (148)
Another quote: "it comported with the emerging model of labor that left to the laborer the formal decision whether to stay or to go" (148).
At this point it is useful to step back and realize what has been accomplished. Steinfeld has theoretically fulfilled both criteria for understanding the transition to capitalist relations (i.e., stage 1 and stage 2). First, he explains very well the freeing up of certain forms of labor in the early nineteenth century. Unlike the historians of liberal democratic capitalism (take your pick: Wood, Appleby, Smith) which simply focused on individualism, Steinfeld adds an initial barrier but ends up with the same conclusions: a breaking down of the old model in exchange for the new one. The enemy is us.
In other words, the institutions were still liberal democratic in essence. That point is clearly made by Steinfeld, and we end the discussion of Steinfeld here (pg. 159):
One perhaps unintended consequence of the Revolution wsa that the hierarchical forms of traditional society began to meet with greater and greater resistance. Increasingly, ordinary working men and women refused to accept the formal hierarchical practices that had defined traditional master-servant relations, denouncing these as a slavery unsuited to liberty-loving Americans. Over a number of decades, a consensus emerged that traditional practices in the employment relationship violated the basic equality promised by the American Revolution.
What do you think -- did Steinfeld hit it on the mark or is something else going on here...?