Abstract
Recent work rethinking the place of the law in Marxian analysis of capitalist society provides us with a foundation for a renewed look at the labor process. Drawing on this literature, which emphasizes the materiality of institutions through which labor is exploited, and returning to Marx’s discussion of formal subsumption in Capital, I argue that the law was central for subordinating labor. I then present three case studies from industries in Victorian England to demonstrate the diverse ways in which law was implicated in formal subsumption. The case studies focus on the ways in which capitalists used master and servant law, the key law governing the workplace, to subordinate labor. I conclude by considering how these cases provoke us to consider the materiality of the law in labor relations more broadly, and such questions might be pursued in developing capitalist economies such as China.
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Notes
For an exception see Brandenberg (1994).
See also Sayer (2001).
See Jessop and Sum (2006) and Jessop (2008) for summaries. As Adam Przeworski notes Marxist state theory has tended not to engage in “micro-level strategic analyses”, (Przeworski 2004, p.182). For attempts to wed Marx with ‘old institutional’ economics see Hodgson (2001) and Pagano (2007). For a discussion of regionally institutionalized regimes of labor control see Jonas (1996). Recent attempts to find common ground between Marxism and the institutionalism of Polanyi (despite some recognized antipathies) include Block (2003), Jessop (2001), and the articles in the special issue of Politics and Society 31[2] 2003). I will be discussing this last issue at length in Law, Labor and England’s Great Transformation.
See also (Wood 1995, pp. 28–31).
As Marx states, “What is sold here directly is not a commodity in which labour has already been realised but the use of labour capacity itself, hence in practice labour itself, since the USE of labour capacity is its ACTION—labour,” (Marx 1994, p. 132).
Bidet offers an extensive argument that because of this tension the political and the economic are fused at “the most fundamental level”. Because capitalists fail to obtain complete control over commodified labor in this exchange political domination is inherently tied to economic exploitation (1997, pp. 48, 50–1, 69–70).
As David Nielson notes,
While ‘exploitation’ denotes the process of the appropriation of surplus value as an economic process based in a social structure of private ownership and wage labour, ‘subordination’ denotes the political technologies that drive this appropriation. Marx’s model of subordination is based on a coercive concept of power as a matter of physical survival, and in which workers’ bodies are physically and outwardly controlled in their every detailed movement (Nielson 1995, p. 94).
Marx notes that the key to this transition is the qualitative transformation in the nature of the employment relationship, distinguishing capitalist relations from those under earlier guild systems: “ The master now ceases to be a capitalist because he is a master, and becomes a master because he is a capitalist” (Marx 1976, p. 1031).
For an extended analysis of Marx’s examination of the struggle over the Factory Acts and their relevance to his theory of the state see (Booth 1978). As Sayer also notes Marx did not pursue the ways in which the Acts create gendered categories of labor and citizenship, (Sayer 1991, p. 85). Engels also produced a separate, more critical, account for the Neue Rheinische Zeitung, (Marx and Engels 1976, pp. 96–108).
As Marx observed in his inaugural lecture to the Workingmen’s International Association in 1864,
After a 30 years’ struggle, fought with almost admirable perseverance, the English working classes, improving a momentaneous split between the landlords and money lords, succeeded in carrying the Ten Hours’ Bill. . . . Through their most notorious organs of science, such as Dr. Ure, Professor Senior, and other sages of that stamp, the middle class had predicted, and to their heart’s content proved, that any legal restriction of the hours of labor must sound the death knell of British industry, which, vampirelike, could but live by sucking blood, and children’s blood, too. . .. This struggle about the legal restriction of the hours of labor raged the more fiercely since, apart from frightened avarice, it told indeed upon the great contest between the blind rule of the supply and demand laws which form the political economy of the middle class, and social production controlled by social foresight, which forms the political economy of the working class. Hence the Ten Hours’ Bill was not only a great practical success; it was the victory of a principle; it was the first time that in broad daylight the political economy of the middle class succumbed to the political economy of the working class (Marx 1975, pp. 10–11).
This is a misunderstanding of the legal history on Marx’s part, since the law was only repealed in 1815. See generally Orth (1991).
See for example Orren (1991) and Marx (1976). Marx in fact notes that, “The provisions of the statutes of labourers as to contracts between master and workman, regarding giving notice and the like, which allow a civil action against the master who breaks his contract, but permit, on the contrary, a criminal action against the worker who breaks his contract, are still in full force at the moment” (Marx 1976, p. 903). However, this is the only passing reference he makes to these laws.
The limit on requests for back wages was £10. Such suits were often difficult to enforce because workers had to pay for additional legal assistance in cases of non-payment. Workers could also bring larger claims to County Courts which operated to settle small financial claims, though it appears that this was much less frequent (Napier 1975, p. 122).
However, in a Queen’s Bench case, Barnsley v. Taylor, the court ruled that a successful suit for wrongful dismissal did terminate a contract and an employer could not be held responsible for failure to provide work under the old contract after the worker received damages, even if the latter went back to work assuming that the previous contract was still active (The Justice of the Peace 32, [April 11, 1868], 238).
Binding agreements were still used in some industries, particularly coal mining in the northeast, until the early 1870s, at which point they were largely eliminated. The agreement “included employer-administered fines for poor work or absence of lack of output, and was inescapable proof of a contract, it was a powerful instrument for employer self-help as well as prosecutions before the justices” (Hay 2005, p. 102; see also Deakin and Wilkinson 2005, pp. 67–8, 217; Frank 2005, p. 409; and Hair 1965). The bonding period was often conducted during the low point in the demand for coal or ore, leaving the workers in their most disadvantageous bargaining position. Since the bond for all workers expired at the same time, and the bonding period lasted a week, workers were faced with signing on mine owners’ terms or missing out on employment for an entire year. The bond obligated the worker to the employer even during periods in which no work was available, creating periods of forced unemployment Mews et al. 1884, p. 153; Justice of the Peace 26 [Feb. 1, 1862], p. 69). In those areas where bonding was absent mine owners often had other sorts of leverage, such as the provision of housing (P.P.1874 XXX [1157], pp. 32,156). A similar type of bonding existed among agricultural laborers in some parts of the country, particularly the north, up through the 1860s. At these ‘mop’ or annual hiring fairs laborers would bond themselves to a farmer for a year (Snell 1985, pp. 91–3; P.P. 1868–69 XIII [4202], App. Ai, p. 260). Often all such bindings were sealed by a small amount of earnest or binding money which prevented the worker from accepting a better offer before the starting state of his contract (Woods 1979, pp. 323–24).
Description of relevant Queen’s Bench ruling for the period can be found in The Justice of the Peace (21, [Aug. 1, 1857], pp. 486–88, 22 [Jan. 23, 1858], pp. 53–4, 25 [Dec. 7, 1861], pp. 776–77, 27 [June 14, 1862], pp. 372–3, [Aug. 6, 1962], p. 508, 28 [May 21, 1864], p. 332, 29 [May 19, 1866], pp. 310–312, 31 [Nov. 30, 1867], p. 758, 39 [June 24, 1874], pp. 388–9, and [Aug. 15, 1874], pp. 517–18).
See also Steinfeld and Engerman (2000) and Woods (1979). Hay complements their analyses by arguing that these laws were designed to inject discipline more generally into the very structure of the labor market:
The penal and other clauses of the employment statutes are not an irrelevant gloss on markets: on the contrary, they are crucial constituents of the labor market. Master and servant law was carefully designed to create labor markets that were less costly, more highly disciplined, less ‘free’ than markets in which the master’s bargain was not assisted by such terms. . .. Criminalizing worker unruliness was consistent with a belief in the criminal inclinations of the propertyless. Master and servant law was also a way of keeping people in their place. The penal statutes made it clear that the contract of employment was an agreement between unequals. The social structure was displayed and reinforced in proceedings before justices and reflected in specific master and servant regimes . . . (Hay 2005, pp. 32, 35).
Hay suggests that during the 1860s, in areas with high prosecution rates, employers brought about 80% of all claims (Hay 2005, p. 258). In my own studies in three different towns with high numbers of prosecution during the 1860–75 period I suggest an imbalance of at least this much if not greater in some instances (2003, 2005, 2006). As William P. Roberts, a lawyer who championed workers causes for many decades in the mid-Victorian era, informed a Parliamentary committee, workers had cogent reasons for being wary of pressing a case in any court:
When you proceed against a master for breach of contract you cannot take him before a magistrate; you take him before the county judge, and a few shillings damages are awarded. The master may the next day take the man before the magistrate, and may visit him, for a less breach of contract, with three months’ imprisonment and hard labour (PP 1866 XIII [449], p. 103).
It is not clear how complete the reporting for summary convictions was. The range varied from a low of 7,365 in 1869 to a high of 17, 082 in 1872 at the height of an economic boom. For the annual records see P.P. 1865 LII [445], 1866 LXVIII [483], 1867 LXVI [523], 1867–68 LXVII [947], 1868–69 LVIII [737], 1870 LXIII [753], 1871 LXIV [231], 1872 LXV [235], 1873 LXX [247], 1874 LXXI [251], and 1875 LXXXI [259].
He also estimates that for the 1750–1823 period about 10% of all prosecution were master and servant (Hay 2005, pp. 98, 108).
As Robert Steinfeld suggests, “In a sense, English wage labor operated under a permanent, standing order for specific performance” (Steinfeld 2001, p. 52).
See also PP 1866 XIII [449], pp. 3–4, 9, 17, 36, 87, and 91 for complaints by workers’ representatives. For other critiques see (Hunter 1875); Bee-Hive, no. 527 (Nov.18, 1871), p. 5.
The reach of the laws was progressively extended to outworkers over whom employers most ready control was piece rates. An act of 1777, covering leather, iron, fustian, hemp fur, hat-making and various textiles provided up to three months imprisonment for workers who did not return work within 8 successive days or who could be charged with neglecting their work or whom returned damaged work. This was extended to all textile industries in 1843 which stated that,
any workman who failed to finish work and return work within seven days of the appointed date—or who failed to work it up properly or did any damage to it or neglected it or left it or otherwise broke his contract—was to be punished with a fine up to £2, besides making good the damage and paying costs; or, if he failed to pay, with imprisonment up to two months. S.3 of the same Act laid down that a workman who failed to return on demand within fourteen days any material given out and not used up, or any tools, was to be punished as for embezzlement, viz., (S.2) by forfeiture of the value of the goods and a fine up to £10 and costs; or, if he failed to pay, by imprisonment up to three months (Simon 1954, p. 166).
As Hay notes more generally,
Markets are always constituted by the law that enforces the bargains made in them. Whether and how the state intervenes or abstains is expressed largely through legal rules of their enforcement (or deliberate nonenforcement) and so rests ultimately on coercive power. Law is always coercive, even when it is also simultaneously facilitative and enabling of social organization. Nor is the law neutral: its rules, at any particular time, tend to favor to a greater or lesser degree one or the other party in any given labor relation. Freedom of contract does not mean freedom to abandon contract (Hay 2005, p. 26, my emphasis).
In the building industry the battle for an hourly contract instead of a daily hire and wage payment was fought and largely won by contractors in the 1860s, particularly among the largest employers. The switch provided greater productivity and control over craft members. Among other benefits it allowed contractors essentially to hold workers idle without paying them during periods of inclement weather (Postgate 1923, pp. 209–10; Price 1980, pp. 111–14).
Deakin and Wilkinson concur, “…the significance of the master and servant legislation lay in providing employers with a mechanism for imposing discipline on workers who otherwise had only a loose organizational connection to the firm, and who would often be in a position to take advantage of labour shortages to push up wages” (Deakin and Wilkinson 2005, p. 70).
Marx himself comments many times on the state of the pottery trade in Capital as exploitative of children as highlighted in the battle over extending the Factory Acts and as one highly organized (despite steam power) to accommodate a legislated work day by the Acts (Marx 1976, pp. 354–5, 535, 1071–72).
After a particularly rancorous strike in 1836 manufacturers were able to defeat once powerful unions, and they remained fairly weak organizations, divided by craft and location, throughout the period.
See note 19 on bonding in other industries.
Stipendiaries were professional magistrates who had extensive background in the law as barristers before being appointed to the job. Unlike their borough counterparts they were salaried, and their appointment was made at the special request of a town or region. They were an outgrowth of the earlier professionalization of the London magistracy, though few areas of the country elected to request them. During the 1860s and 70s the Potteries region had two such stipendiaries, Davis and Balguy. The former wrote a treatise on master and servant law (because of his extensive experience) listed in the references (French 1967a, 1967b).
See Steinberg (2003) for biographical references on the manufacturers who participated as borough magistrates.
It is clear that these data on prosecutions are by no means complete, yielding numbers equivalent to about 20–25% of all of the convictions in the annual parliamentary reports. It is not possible to decipher selectivity biases. Trial reports from the Advertiser were particularly useful for decisions rendered by the stipendiary magistrate which had its own circuit and thus different minute books.
For detailed tabular data see Steinberg (2003).
For a detailed breakdown of the data on convictions see Steinberg (2003).
One contemporary source stated that there were 104 blast and 2,049 puddling furnaces for iron production active in the area in the early 1870s (The Stourbridge Observer, Cradley Heath, Halesowen and District Chronicle no. 428 [June 8, 1872], p. 4).
Walsall was a complicated administrative unit. It was comprised of the borough, which only contained about 8,300 people, and the foreign township which included adjacent villages and hamlets (White 1873, p. 918).
Employers in the Walsall trades seemingly feared workers’ organizations, since a writer in the annual trade directory (ironically named The Red Book) for the town in 1872 warns workpeople against the fantasies of “Communism” (‘Spes Ancora Mea’ 1872, pp. 19–23).
Marx was aware of this bias problem in the local courts from his readings of the troubles that the factory inspectors experienced in enforcing manufacturing and mining safety laws (1967, pp. 88–89).
The analyses were conducted by using the magistrates lists for each town from the White’s Directory, Littlebury’s Directory and Gazetteer of the County of Worcester, the names of magistrates listed in the magistrates’ entry books (for Halesowen and Oldbury, Worcestershire County Record Office, Register of the Court of Petty Sessions, 1870–1877, BA 2509, Class B260.103 and for Willenhall, Walsall Local History Centre, Walsall Magistrates’ Courts Entry Books, 254-1-8: May 1873–Dec. 1875) and cross-referencing them with the occupations listed for each of the individuals in the 1871 English Census registers. Oldbury had two magistrates, a landowner and a retired surgeon.
For a list of the relevant parliamentary reports see n. 23.
For this analysis I collected descriptions of all cases that were reported on in the Staffordshire Advertiser and/or the Walsall Free Press. This group of a little more than 100 cases is certainly not a representative sample of the many hundreds that were brought before the court, and it is impossible to tell on what basis the cases were selected. My experience in comparing data collected from newspapers and original court records is that the subset derived from the former generally overemphasized the cases with the more severe penalties and under-represents cases that received lighter sentences or were otherwise disposed by the courts.
A hame is part of a horse collar and the trade was a major workshop industry in the area.
Damages of £2 were claimed, but the defendant was released with a stern warning, (Walsall Free Press, April 6, 1872).
The trades involved were identified by matching the employer’s and or workers’ names listed in the court register with names found in the English census record books for Willenhall and its immediate environs for 1871 (RG 10 series) or 1881 (RG 11 series). Identification using this strategy was possible for a little less than 90 percent of the listed cases.
For contemporary observations see Longe (1860); The Justice of the Peace 32 (Nov. 14, 1868), pp. 726–29, 38 (June 6, 1874), p. 357, 39 (Jan. 2, 1875), p. 6.
Such a strategy was even used in highly mechanized industries, such as in the famed cotton spinning factories of Lancashire. In 1866, for example, there were 498 prosecutions in the town of Preston, which represented almost two-thirds of all master and servant master and servant proceedings for the entire county that year (PP 1867 LXVI (523), p. 27). The prosecutions were used to break a rancorous strike of cotton spinners, Robert J. Steinfeld (personal communication).
See for example the cases reported in The Stourbridge Observer, Cradley Heath, Halesowen and District Chronicle, Feb. 10, July 27, Oct., 19, 1872.
Hay argues that master and servant law was often very effective in handing skilled workers (Hay 2005, p. 101).
Isaac Balbus makes a similar argument (Balbus 1977, pp. 576, 584–5).
In the early struggles against master and servant law workers’ lawyers had fought against it on technical rather than substantive grounds. See for example Christopher (Frank 2002). For discussions of this struggle for reform see, Curthoys (2004), Fraser (1974), Harrison (1965), pp. 251–342, Kaufman (1974), McCready (1955, 1956), Spain (1991) and Trades’ Union Congress Parliamentary Committee (1874).
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Acknowledgements
My thanks to Gretchen Purser for comments on a previous draft and to the anonymous reviewers for helping me clarify several ambiguities in it. Also thanks are due to Doug Hay, James Jaffe, Robert Steinfeld, Charles Tilly and all of the others who have informed my understanding of the workings of the law. This research was partly underwritten by a generous fellowship from the American Council for Learned Societies and the Smith College faculty development fund.
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Steinberg, M.W. Marx, formal subsumption and the law. Theor Soc 39, 173–202 (2010). https://doi.org/10.1007/s11186-009-9101-9
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DOI: https://doi.org/10.1007/s11186-009-9101-9