BRODY/TOMLIN DEBATE LAW, LABOR AND IDEOLOGY

Through the work of Chris Tomlins and David Brody, and with the generous permission of International Labor and Working Class History, H-Labor carried Brody's original review, the Tomlins-Brody correspondence, and then later contributions from Mel Dubofsky, Eric Tucker and Howell Harris.

Thanx to all. Seth Wigderson H-Labor Moderator



Brody - Tomlins debate "Law, Labor & Ideology" [1/2]

Chris Tomlins and David Brody have agreed, with the permission of ILWCH, to share their discussion with us, and invite our participation. Many thanx to all who made this possible. Seth Wigderson, H-Labor Moderator


A GREAT DEBATE: Featuring David Brody, Chris Tomlins and anyone else who wants to join in

Preface (by Chris Tomlins):

A few weeks ago, a journal familiar to many of the subscribers to this list, *International Labor and Working-Class History* [hereafter *ILWCH*], published a review of my book, *Law, Labor and Ideology in the Early American Republic* (Cambridge UP 1993) [hereafter *LLI*]. The review, appeared in ILWCH #47 (Spring 1995), at 144-47. It was written by David Brody. Once I had read David's review I was moved to consider replying to it. I thought at first of replying in traditional fashion by letter to the journal, but for two reasons decided against it. First it seemed to me more expeditious to find a means of responding while the review was fresh than write a letter that (because of copy deadlines and ILWCH's bi-annual appearances) might not appear for a year. The second was that I conceived a response could be a means to start a discussion of a phenomenon of recent labor history scholarship -- the "law" turn. Both reasons led me to H-Labor. What better medium to respond while David's review was still fresh? What better medium for a discussion than a labor history discussion list?

There were other reasons for following this course. First, H-Labor has held discussions of labor law history before, but these have tended to concentrate on the orthodox arena of twentieth century labor relations legislation and policy. There seemed reason to hope that a discussion of a book focussed on the eighteenth and nineteenth century might broaden our collective horizons. Second, a discussion of David's review would furnish something of a test of the potential of H-Net discussion lists to handle quasi-prepared debates around book reviews rather than the more ad hoc exchanges to which we have become accustomed. As the lists move toward a policy of reviewing books I think it is useful to develop structures that encourage debate sparked by those reviews.

For these reasons I proposed a debate to our moderator, Seth Wigderson. Seth was agreeable, and contacted ILWCH for permission to reproduce David's review. Initially, however, the prospects for holding the debate seemed dim. ILWCH was reluctant to allow the review to be reproduced electronically. David asked that the decision be reconsidered. Meanwhile, assuming that the public debate would not go ahead, I initiated a spontaneous private exchange with David on the merits of his review. Our exchange proceeded through several messages and eventually reached a resolution that, while it did not resolve the issues between us, at least gave us a means of drawing our disagreements to a mutually satisfactory close.

At this point ILWCH changed its mind and gave our moderator permission to go ahead. Exhausted from our earlier back-and-forth, David and I agreed that rather than prepare new copy we would simply share our private exchange with the world.

We'll proceed as follows. The next item to be posted will be David's review. This will be labelled GREAT DEBATE 1. After that will be the series of exchanges between Brody and me that the review provoked. This will be labelled GREAT DEBATE 2.


GREAT DEBATE 1

*Law, Labor and Ideology in the Early American Republic*. By Christopher L. Tomlins. New York: Cambridge University Press, 1993. xviii, 406 pp.

By now, Christopher Tomlins' prize-winning book has been widely reviewed and duly praised for its probing scholarship, subtle argument, and originality. Let me stipulate my agreement, and go on to some of the more interesting problems that emerge from a second reading, and from a reading of other recent contributions to the history of early American labor law. Tomlins comes armed with a postmodernist perspective ("legal discourse" is the operative phrase throughout) and he writes in the tradition of Critical Legal Studies, whose project it has been to explode what Tomlins calls "[law's] claim to discursive universality" (xv). At present, Tomlins tells us, the two main lines of assault proceed either from "instrumentalist" assumptions about law in service to the dominant economic order or "constitutive" assumptions about law as shaper of fundamental social/hierarchical relations. While accepting elements of both, Tomlins takes great pains to carve out a third way for himself. For Tomlins, the law of the early republic is a "modality of rule," in which the law "showed itself not just as a *framework* for the realization of private power and domination but in fact as an element integral to their construction" (xv). The law is "in itself an expression of historically contingent purposes" (xiii).

Historical contingency requires, of course, some demonstration of alternative paths, which Tomlins finds in the contest in the early republic between the common law and "police" (not as law enforcement agency but in its prior meaning as the securing of the collective good by the action of the community). Just how real an alternative "police" was as a *legal* system seems problematic, since it nowhere figures in the closely argued legal history that makes up the bulk of Tomlins' book. The most that Tomlins can say for "the discourse of police" is that "in the newly created republic ...[it] emerged to give brief political expression to a democratized ideology of communal good order or collective happiness" (94). But since he is dealing with law, and insisting moreover that law, not politics, constituted the true terrain of struggle over an American polity, it is hard to see how police as the "brief political expression" of a "democratized ideology" provides the alternative that Tomlins needs to make his case that the triumph of the common law was a contingent event.

It is, in any case, with the common law that Tomlins' consideration of law as a modality of rule actually begins. Although Tomlins would probably hotly deny it, his conception is strongly essentialist, in that the "realization of private power and domination" is an outcome embedded within the common law itself. Where we might be most tempted, in the fellow-servant doctrine insulating employers from the cost of industrial accidents, by an instrumentalist explanation Tomlins actually stops the book and inserts a brief chapter explaining beforehand why his treatment should not be so read, for while capitalism's interest might have been served by the fellow-servant doctrine, this was "determined by legal discourse's own rules of formation rather than by its proponents' obedience to an overweening exterior influence" (294).

From that starting point, one could imagine a book undertaking a systematic analysis of just what there was in its "own rules of formation" that enabled the common law to function as a modality of rule. Tomlins, however, takes a different tack. What he offers us are close readings of the case law on labor conspiracy, master and servant, and industrial accident liability, from which he wants to infer that modality of rule does describe the common law coming to grips with the great labor questions of early American capitalism.

This requires, first of all, an initial indeterminacy, a free field, so to speak, on which a modality of rule can exercise its will. Criminal conpiracy, master-servant doctrine, and the fellow- servant rule were not prescribed by 18th-century antecedents, Tomlins insists, but were "the products of legal discourse, their origins to be found in the great burst of juristic activity that did so much to define the nature of American existence in the first half- century of the Republic" (390). In *Belated Feudalism* (1991), Karen Orren says just the opposite: the evolution of American labor law was not open or contingent, but on the contrary was fixed by rules of hierarchy and of enticement embedded in master- servant doctrine and not finally discarded until late in the 19th century. If Orren is right, then there is no great legal problematic to set Tomlins' modality of rule into motion.

Consider next the treatment of labor conspiracy in Victoria Hattam's *Labor Visions and State Power* (1993). She argues that the antebellum cases cannot be read in class terms because the economic issues at stake involved the public good rather than private interests and because anti-combination restraints applied to employers as well as workers. Moreover, these restraints did not pose any special threat to the early labor movement because it was primarily producerist. Conspiracy prosecutions became a problem only after the doctrine was revived in a more virulent form after the Civil War and after trade unionism became the dominant mode of action. What Tomlins sees as a critical legal moment Hattam reduces to something of a side show.

In the conspiracy cases, there is at least no question of the target--the freedom of workers to act collectively. What Tomlins finds at issue in master-servant doctrine and accident liability, however, is itself in some doubt. According to Tomlins, both were concerned above all with employer power at the workplace. Regarding master/servant doctrine, Tomlins notes a divergence from England, where it came to be used in the 18th century to prevent workers from leaving their jobs. In the colonies this constraint over their persons applied only to bound workers, and had no bearing on workers defined as free until, through the legerdemain of common law interpretation, it became the legal basis for their subordination at the workplace. This is most interesting, of course, and a nice example of Tomlins' fertile mind in action. But what exactly does his discovery reveal? Judges do scy here and there that obedience is an obligation workers assume when they accept employment. The legal consequences of this dictum are very tangential, however, applying in law only to cases dealing either with the liability of employers for damages done by their employees to third parties or with the denial of wages to workers leaving jobs or fired before the expiration of labor contracts. More important perhaps is the question raised by David Montgomery in *Citizen Worker* (1994): whether employers actually needed any legal underpinning for their authority at the workplace. Montgomery says they did not.

Consider, finally, the problem Tomlins encounters trying to link accident liability law to workplace control. Plaintiffs sought "to attribute responsibility for work injuries to employers." How can the denial of that claim by the courts be construed to mean protecting "the employer's disciplinary power" (296)? By arguing elaborately, as Tomlins does, that the liability claims constituted a "challenge to the intensification of the accumulation process." But all the cases Tomlins cites arose in a much narrower context-- not, as he would have it, from "the contested territory of production" (295) generally, but, quite particularly, on the railroads. The defense in the landmark *Farwell v.Boston & Worcester Railroad* (1842) was the railroad management's *incapacity* to oversee the dispersed workers--in this instance, the brakeman who left the switch open--on its farflung operations. This was the basis for the fellow-servant doctrine, which absolved the employer from liability for injuries to one worker caused by the actions of another and asserted that they, not the employer, were mutually responsible for safety on the job. It is strained reasoning, to say the least, to read into this logic either a defense of the disciplinary powers of employers or "the refusal of courts to admit the possibility of intervention" (295). The ruling in *Farwell* was based on a finding of facts, not the denial of court jurisdiction. One would expect, if the court's reasoning as expressed in that case (rather than Tomlin's gloss on it) was truly compelling, that as managerial supervision became more effective, the courts would begin to abandon the fellow-servant doctrine. And, according to Jonathan Simon (*Studies in Law, Politics and Society* [1993]), that's exactly what happened after the Civil War, holding, as Simon says, management "accountable to its own promises of order" (107).

On this matter, as with so much else in his book, Tomlins' problem is one of proportion. It is not enough that the courts shifted the costs of injury to the workers, or even that they could well have found otherwise. Something more fundamental, more systemic, seems required. Tomlins' modality of rule turns out to be a very demanding concept: legal history in a minor key will not do. Hence the consistent penchant for magnification that characterizes his book and that insists, finally, that "law, not politics, furnished the discourse of rule in this American model" (92). Since these magnifications are the problematic elements, they are also the basis for questioning whether Tomlins has hit on the right hypothesis for understanding the labor law of the early republic.

David Brody University of California, Davis

 Chris Tomlins                    Tel: (312) 988 6553                           
 American Bar Foundation          Fax: (312) 988 6579                           
 750 North Lake Shore Drive       E-m: CLT@nwu.edu                              
 Chicago, Illinois 60611 [USA]     or  CLT@merle.acns.nwu.edu                   
                                                                                
                          *********************                                 
                            GREAT DEBATE 2                                      
                    Introduction (by Chris Tomlins)                             

Here follow the exchanges arising from David's review. The exchanges appear exactly as they did when first transmitted between us as private correspondence, except (in my case) at a couple of points where haste led my original to become confused or ambiguous. Here I have allowed myself minimalist editing to clarify meaning. The exchange begins at the point where ILWCH seems unwilling to let H-Labor reproduce David's review.

Date: Thu, 15 Jun 1995 From: "christopher tomlins" <clt@merle.acns.nwu.edu> Ty: BRODYIIR@CMSA.BERKELEY.EDU

Regarding our debate, I've heard no more from Seth and I guess if ILWCH refuses to yield it's a dead duck. I've grumbled a bit about your review to various people, including James Henretta who I gather is a mutual friend, and who (thankfully) liked the book a bit better than you. What I appreciated in your review was that you had clearly realized how all the different bits of the book articulated with each other and why they were there. Other reviewers, even the highly complimentary ones, have been more superficial. And some of your criticism is well taken. The police stuff does not follow through consistently. But that aside, I'm afraid I got a bit impatient being dogged by a pack of proxies (Orren, Hattam, DM etc) whose arguments I believe you'd test more rigorously under other circumstances. I had the distinct feeling they were wheeled into action purely because you could use them to bag me. And I thought your comments on the accidents section were very unfair. I'll mention only three things

  • First, Jon Simon says explicitly he's building on what I do and accepts it fully, so to present him as if he were a critic is unfair. Second, to call an appellate decision like *Farwell* a finding of fact is highly misleading. And third, it is just not the case that I have to "gloss" Farwell to produce a result that supports my argument. The reasoning is squarely there in the opinion. "Considerations of policy and general expediency forbid the extension of [liability] so far as to warrant a servant in maintaining an action against his employer. . . " To grant the action "would not conduce to the general good."

    By the time I'd finished the review I'd encountered so many negatives that I'm afraid I had to conclude that for some reason I couldn't fathom you'd just decided to wreck the book. As it happens, I finished writing it in 1992 not only satisfied that it was a much better piece of work than my first book but also that it was in fact objectively a good book. That's still my opinion and my confidence in it lends me a thicker skin when it comes to critical commentary than I might otherwise have. I think one is apprehensive about what critics may say only when one is afeared they may be right. Perhaps, nevertheless, I react more strongly to your negatives because I had hoped that the best labor historians of your cohort (obviously I mean you and DM--of whose opinion I know nothing in this case) would find something worthwhile in the course I'm charting. But even if not my course is locked in, and the law turn will certainly continue.

    All this is better said between us than shouted at you in a public response, so perhaps it's as well that the debate has probably fizzled. I'm always glad to be in touch with you and will look forward to continuing to trade, whether its barbs or information, or even the occasional compliment. And please let me know if you are likely to come this way. I think we could provide an appreciative and interested audience if you were of a mind to present further thoughts on RICO or talk about your workplace rule-of-law research. As ever CT


Date: Sat, 17 Jun 95 From: BRODYIIR@CMSA.BERKELEY.EDU To: clt@merle.acns.nwu.edu

Chris: I've been mulling over your response to my review. Let me say, first of all, that I'm acutely aware of all the work that goes into making a book--yours more than most, I should say-- and of the reviewer's responsibility to be respectful of that effort and treat it seriously. I can honestly say that I engaged you book as seriously as I could. I suppose it's one of the bonuses of retirement. If you think something deserves time, you don't have to stint. There's probably two weeks' effort in that review. The question of whether I was "unfair" can only be answered in regard to specific charges. You object to "being dogged by a pack of proxies." Proxy is a funny word, suggesting I preferred to rely on other opinions rather than my own. You have to understand that I'm not writing as an expert; early labor law is not my field. You're probably right that, had I been been reviewing Hattam etc, I would have tested their arguments more rigorously. I was only interested in what they said empirically. All I know about your subject is what you tell me, or what other experts tell me. I turned to Hattam etc to compare what I understood to be key empirical claims in your book against what other current scholars say. That's what's in the review. My purpose was to show what is still in dispute among knowledgeable scholars. You may be right on every point, but that's to be determined. Unless I have misstated or distorted another scholar's finding, I can't see what's unfair about what I did. This leads me the issues raised by you regarding the accidents section. It was Simon's finding in re the liability/control relationship that is to the point; if I've got it right, it's really not relevant what he says about you, or misleading, although, if I had had the space (there's only one line about Simon, I think) I would certainly had said so. What attracted me to the Simon's article was that it fitted with my reading of your account of the Farwell decision, namely, that the logic of the decision fitted the facts--the railroad couldn't exercise control over its employees in the field. Am I wrong that this in fact was what the railroad argued? As I recall (I haven't got the review here in D.C.) I used the phrase finding of fact to mean that Farwell accepted the railroad's factual argument and drew its conclusion on that basis. Am I wrong about that? And this leads to the third point in re my use of the word "gloss." This referred not to your reading of Farwell, but the larger framework in which you placed that case, i.e., in sustaining the development of industrial capitalism & managerial control. The bits of quotation (as I recall) from you have to do with that larger issue, not to the Farwell decision as such. Here, too, the direction of my query, by now becoming clearer to me, was over the magnification of what was really at issue in all the liability cases cited by you, i.e. , that they concerned railraods, a newfangled device with murderous tndencies qualitatively different from all other work experience of your era. It troubles me, of course, that you interpret my review as aimed at wrecking your book. I'd be happy to stand up at the next AHA convention or any other place and say I think you've written a terrific book. I said so at the outset of the review. By the time ILWCH asked to review it, the book had already been widely praised, and it seemed boring to say more of the same, esepcially since I was already convinced that it warranted a more serious look than anything I had yet seen. It seemed to me that your central claim about the modality of rule--a powerful, deeply original idea-- needed to considered critically, and not just swallowed whole, or, just as p ssible, simply ignored. That's what my review tried to do. Yes, I ended up being skeptical of it--predictable, I guess, given my own historical bent--for the reasons specified in the review. But it didn't occur to me what I wrote would be interpreted as saying you had written a bad book. I don't think others will read it that way. I know what it's like to be an author, and on the recieving end, so I'm truly sorry if I've distressed you. I'm heading home early in the morning, so I've go to stop here, but I wanted to get at lest this much off my chest. All the best, David


Date: Tue, 20 Jun 1995 From: "christopher tomlins" <clt@merle.acns.nwu.edu> To: BRODYIIR@CMSA.BERKELEY.EDU

Thanks for your reply. Authors of reviews and the authors they review will always differ over how to read the texts in question--first the book and then the review of the book. I don't for a moment dispute that you took it seriously. Indeed, the evidence is abundant. Your review is polite, clear, carefully-crafted, comprehensive and layered. Like I said before, until recently I had been concerned that no one was attempting to grapple with what I was trying to do. Your review certainly understands the book's structure and ambitions. In that light, what struck me (even more forcibly than would have been the case in a poorly-conceived or poorly-written review) was the relentless accumulation of negative judgements -- so relentless, in fact, that by the time I had finished reading the review I was left wondering whether you had not seen what I was attempting as something so profoundly distasteful that it needed to be shot down. You say that's not the case at all, and I accept that. However, I thought I should at least explain to you how I read your review, so you could see what led me to develop that suspicion. In three lines at the beginning you advert to the favorable reception that the book has enjoyed thus far from others, and stipulate agreement. In the fourth line, you dismiss that reception and claim priority for the review that is to follow. Yours is "a second reading." In parliamentary terms, of course, the first reading of a bill is a formality -- the second reading is the first that really counts. There's some other rhetorical positioning that I found ominous. You have me forever "insisting" on this or "hotly denying" that. I read this as an implication that my book strains beyond the evidence to argue by assertion. This, I think, is not justified. Certainly I try to explore the full potential of the evidence I marshall. I develop hypotheses, formulate theories, offer argument, draw conclusions. I do all of this very explicitly. However, I do not think I "insist" on anything, as such. I try to develop an argument clear enough to be understood on its own terms without reaching for extravagent rhetoric. To me, what you call "insistence" are conclusions that I have reached on the basis of a discussion of evidence and argument. These are not statements uttered as unsupported truths (which is what I take "insistence" to be). As to substance: I said before I think your comments on police are reasonable. In Chapters Two and Three I try to explain as comprehensively as possible my historical grounds for counterposing police and law, I relate these grounds to Anglo-American political and economic theory, I discuss their relevance to the political disputes of the Confederation period and I explain my argument that police, lost out in the sense of "paradigmatic discourse" to law. I think there is more in those first 100 pages than the extract you quote implies, but I'll not quibble.

Then you tell me I'm being essentialist, allow me to deny it ("hotly") but best me in argument. There is a certain inevitability about that outcome. But in any case I do deny it. I'm not attributing essences to law, I'm exploring law at a particular historical moment. Given that, it seems wrong to hold that to describe pronounced characteristics of law at a given moment is to give in to some essentialist fallacy, simply because the characteristics are pronounced. In any event, what I think are and are not e sentialist arguments are described in the introduction at p.xiv. Let's proceed to my readings of criminal conspiracy, master/servant doctrine and employer liability law. You quite rightly observe that I present these discussions against a "free field" of initial indeterminacy in the American case. To my insistence on an initial legal indeterminacy (how does this square with my "essentialism"?) you counterpose Karen Orren's argument for American law's essential (here I use the word advisedly) ideational continuity with rigidly hierarchical feudal precepts transferred from England. If Orren is right, you correctly observe, then large expanses of my argument are scuppered. As it happens, Karen and I have discussed this issue at some length. The issue is an empirical one. When, in the case of labor regulation, does American legal practice appear to evidence a resort to English law (accepting for the sake of argument that English law was monolithic and displayed those centuries-old feudal characteristics, which in fact I would wish to qualify)? From first settlement? At some point during the 17th or 18th centuries? Not until the 19th century? The difference between our accounts is that Karen *assumes* continuity rather than investigates it. I can defend her decision -- her primary goal was to show that American law in the second half of the 19th century was thoroughly imbued with master/servant doctrine that had an ancient heritage. It did not seem necessary to her to demonstrate how or when this reception had occurred, for as she says at one point, were it to be shown that English master/servant law was *not* widely enforced in the American colonies her argument would survive [BF, p.58, note 62]. But for me the issue is important. Like her I see American law in the 19th century very affected by common law master/servant doctrine. But it seemed to me that there is far more resort to master/servant doctrine as a generic description of employment relations by the early years of the nineteenth century than had been the case before. My empirical investigation of the phenomenon established that it was at least an argument for which there was sufficient evidence that it was worth making, and therefore I made it in LLI, where it indeed serves to bolster that claim to an initial indeterminacy. I am still working on this issue and will have more to say down the track, but my point here is that I present enough evidence in LLI for you to be in a position to evaluate it rather than represent the difference between Orren's account and mine as some kind of co-equal evidence-less theories. I have evidence for my position; Orren never felt it necessary to produce evidence for hers. Which account does a historian choose? That with evidence or that without? [Here an aside: one of the aspects of the review that I found frustrating was precisely that you introduced others' accounts but didn't take positions on the differences that you found between them and my own. Instead you tied me down under a drip of doubt by saying at the outset that they illustrated problems with my book. That's why I called them proxies. But in any case I disagree that they illustrate problems. [Quite apart from anything else, what that indicates to me is that in fact you *have* drawn conclusions]. What they illustrate is different interpretations drawn on the basis either of no evidence (e.g. Orren) or research that I think historians would not find very thorough (e.g. Hattam)]. Let's talk about Hattam. You say she appears to show that antebellum conspiracy prosecutions were "a side show" and had no particular impact on the early labor movement. You say nothing at all about this part of my book, so a reader has no opportunity to evaluate your comparison. As I indicate in the book, I admire and have learned from Vicky's ideas but I am not at all persuaded by her account, which deals quite cavalierly with materials I know very well indeed, particularly when it comes to the 1830s [which is the key decade for both of us]. This will come as no surprise to her, nor will it come as a surprise to anyone who has read *LLI* where (see, for example pp.155-6) I lay out the basis of my disagreement with her and marshal evidence that I think sustains my position. You may not agree that I have been successful, but again I think this is not a matter of co-equal assertions. Vicky's research and mine can be evaluated empirically: in turn, that evaluation of our relative evidentiary backing permits judgment as to the relative worth of our interpretations.

In the master/servant section you dispute that master/servant doctrine was of any practical significance in underpinning the authority of employers in the workplace and you use Montgomery [*Citizen Worker*] as back-up. Parenthetically, here you preface your comments by appearing to accept that the ambit of master/servant was more limited in 17th/18th century America than during the antebellum period, but ask what is the significance of this. First, does it not reveal that the "great legal problematic" of initial indeterminacy about which you raised important questions earlier in fact has decent evidentiary support? Second, it reveals that employers and employees do not enjoy legal equivalence as a matter of definition rather than simply as a matter of resources. I take your concern here to be principally a desire to see practical effects. I do offer practical effects, as you note--reinforcement of wage discipline through "entire" contracts doctrine; protection of employers from third party interference with contractual relations--but you say they are tangential. I disagree, but I do think this is a real question, so I don't have any problems with this part of what you say. Indeed there is a real issue that could be debated out here, one of what I read as your tendency toward instrumentalism versus my resistance/suspicion of that position (built in my case on seeing legal historians try it and generally fail). I assume by "tangential" you mean tangential to whether employers actually needed legal underpinning in order to be able to exert authority in the workplace. Here's where you note that Montgomery says employers did not need any such underpinning. What Montgomery says in what I take to be the passage you have in mind is "Without a doubt the common law provided the legal discourse within which the respective rights of employer and worker were defined" but also second that "one cannot conclude that employers' authority in the workplace was created by legal discourse" [CW 43]. This actually seems to me to be a somewhat different and perhaps more subtle point than arguing straight out that employers had no need for legal underpinning for their workplace authority. Nevertheless, I have some difficulty reconciling the two statements that Montgomery makes here, because they seem to imply that the process of defining "employer" and "employee" as significations of subjects possessing differential legal rights has nothing to do with how those subjects subsequently interact. I would not argue that legal discourse is all there is when it comes to the creation of authority, but at the same time it is very difficult to exercise authority *without* possessing the legal right to exclude (property) and/or direct (entitlement to fidelity) one's workforce. In these senses legal discourse indeed *does* create authority because it offers the sanctions that reinforce claims to exercise exclusion or subordination rights legitimately. Possibly, like you, what Montgomery is skeptical of is actual practical impact, and I agree that in the American case, at least where free white adult male laborers are concerned, instrumental impact is more difficult to show decisively than, say, England. But it is not by any means impossible. Consider maritime work, for example. Or, closer to your concerns, consider the implication of employer-proclaimed work rules directly into the employment contract to resolve disputes over contract interpretation. This is a development that Montgomery associates with the second half of the 19th century, but which I show (284-90) to be well under way in the first part of the century. And so we come to employer liability. You challenge my linkage of industrial accident liability law to issues of workplace discipline and to the intensification of the accumulation process, stating that all the cases I cite arose not in "the contested territory of production" as I claim, but on the railroads; and that they occurred in situations over which employers could not be expected to have effective control. After the Civil War, as managerial supervision became more effective, courts smoothly adapted to new circumstances, cutting loose from their earlier liability doctrine, holding management "accountable to its own promises of order" (147, citing Jon Simon). First, I think it is misleading to contend that the cases upon which I build my argument are all drawn from railroads. Even if they were, I would fail to find any merit in the objection. Most antebellum industrial accident litigation involved railroads. But in fact I discuss cases arising during the 1830s-60s from mining, from maritime, from riverboating, and from various manufacturing enterprises as well as from railroads. In setting up my argument I discuss numbers of other cases too, not germane to this particular bone of contention, but ranging over English as well as early American settlement law, and also aspects of the American law of enslavement. It would certainly be accurate to state that the leading cases in the development of common law employer liability doctrine are mostly railroad cases. This would also avoid the implication that I steer my argument through careful selection of evidence. I didn't understand the implied lack of relation between railroads and the terrain of production. Perhaps you don't mean to imply any such lack of relation. After all, railroads are just as engaged in production as anyone. My larger point, though, is that if one examines the whole terrain of production one will find certain commonalities driving investment, design and work routines. The whole point of the "Mechanism" chapter [Chapter 9] was to show how what I called a "political economy of speed" characterized all production and led to a rising incidence of accidents under mostly mundane and readily preventable circumstances -- accidents that were not the outcome of some new mysterious technology but could be attributed to hurry, design flaws or expenditure savings (single track railroads, weak locomotives, badly ventilated mine shafts, crowded machinery, poor maintenance etc) all dsmonstrably obvious to contemporaries -- nothing mysterious, everything she product of choices about how to design and implement a process of producing a good or service. I've already indicated [in the previous message] some of what I took exception to in the accidents section. You ask, in response, didn't the logic of the decision fit the facts. Yes, inability to exercise oversight is what the railroad argued. Railroads also argued the same way in other third-party accident cases (passengers) but there the decisions went the other way. That is, courts distinguished responsibility to employees from responsibility to others even though, factually, there was no basis for any such distinction. The problem with calling something like Farwell a finding of facts is really that the facts are irrelevant. What is being argued/settled here is legal doctrine that will have impact across innumerable different fact situations. Law doesn't alter to accommodate different fact situations. As to "gloss" I just can't see any way to read that sentence [in the review] to refer to anything other than the court's reasoning in Farwell. If you tell me now you were making a more general point I of course accept what you say.

I've already tried to reinforce the point about refusing intervention on behalf of injured workers. The legislature also says, incidentally, that the best guarantee of a safe environment for passengers or workers is an unencumbered management.

For me, the overall message of this section of the review was that I could not sustain my argument linking workplace discipline with the denial of employee rights to maintain actions to recover compensation for injury without "elaborate[]" argumentation, selective use of evidence, "strained reasoning" and creative reinterpretation [glossing] of courts' words. This seems to me to be criticism that is difficult to sustain. Apart from anything else, look at what they say. In *Ryan v. Cumberland Valley Railroad* (1854) the Supreme Court of Pennsylvania volunteers in words as plain as a pikestaff its acknowledgment of precisely the links I have tried to unearth. To find employers liable to compensate employees for accidents is to interfere with the necessary disciplinary powers of the employer. "If [employer liability] were the rule, it would embarass the conduct of all business where any risk is to be run. How could a sailor be ordered aloft in a storm, without the employers being liable to the charge that the captain had shown want of proper skill and care in giving such an order in the circumstances?" (*LLI* 383). As I say in the book, how indeed?! Overall, I went away feeling that I had been represented as someone engaged in making strained arguments with little evidence, indifferent to historical detail, completely lacking in a sense of proportion ("a consistent penchant for magnification") determined to elevate to systemic significance what is really nothing more than the messy thud and blunder of historical circumstance. Now you tell me you think it's a terrific book. That's nice to know--I really do mean that--but I have a little difficulty putting these two judgments down alongside each other. What do you say about books you don't like?

Anyway, enough of this. I should stop wasting your time hashing over disagreements. Let me finish on an up-note. To reiterate, I did appreciate, and could see in the review, that you had gone into it t oroughly. And it doesn't unduly surprise me that you came out the other end skeptical -- I think I have a grasp of the kind of historian you are and what you will find to your taste. I just rather wish that the process in between had been a little bit more, how shall I put it, tempered. But it will stimulate me to keep hacking away rather than loll on my modest pile of laurels, so even in encountering adverse opinion there is not a little use. Best wishes CT


Date: Sat, 24 Jun 95 From: BRODYIIR@CMSA.BERKELEY.EDU To: clt@merle.acns.nwu.edu

Chris: I hope you don't mind if I take another crack at our discussion in re my review. Reading over your lengthy & vigorous response, a notion began to creep into my mind that, aside from points we could go on debating indefinitely, maybe of some use to you as the debate you have initiated both in LLI & the ILWCH article proceeds. This first occurred to me in the way you interpreted the shift from my opening statement in re my agreement with the applause for your book and my desire to consider the problems I thought worth further exploration. You interpret that shift as the begninning of my attack on your your book, to "wreck" it, as you earlier said, and as you go along you marshall indications of hostile intent--beginning with the ref to a second reading (which I meant not in a parliamentary sensde but simply that, having read it once quickly, I now sat down & read it closely because I'd been asked to review it: nothing sinister in that surely); to my use of the verb "insist" (which my dictionary defines as "to asert or maintain positively," which I think fairly describes you, & says nothing about the quality of your argument), and so on. So let me see if I can persuade you to take a cooler look at what my review tries to do, and that I can see now perhaps failed to do, at least for you (as I said before, I hope others will read it differently). The key is probably in your remark that, if I treat a book I say I admire as I did LLI, how would I treat books I didn't like? The point is, your book is not like other books. It seeks to change in a fundamental way how we think about law, and offers in the modality of rule an explanation for how labor law operated in the early republic. But how are we to catch hold of this modality of rule? It has no reality in itself, it's an idea in your head that you believe characterizes deeply embedded qualities in the legal process. As I said in my review, one could argue its validity either by an analysis of the legal process--inferring the modality of rule--from the logic of the common law or, as you do, by showing how it worked its way in particular realms of the law itself. The reader has two choices--three, if coun ts readers who don't try to understand your book. One, he/she can simply accept what you say as true. Your book doesnt argue the pros and cons of the modality of rule hypothesis. It stands wholly on one side; and everything you argue is marshalled to support that hypothesis. You are wrong to say that I denigrate your arguments or the facts sustaining them. Far from it. I'm all admiration for the skill and care with which you make your case. But that's what it is: the case for the modality of rule.If the reader is not prepared to simly assent--which, for reasons you note, summarized by me the instrumentalist (which I'm prepared to accept), I'm not--the only choice is to go into opposition, that is, to look for all the ways in which your case can be challenged, because that's the only way to test whether we should accept the modality of rule hyopothesis. That's what my review undertook to do. Chris: I have to go. I'll pick this up later. David


Date: Mon, 26 Jun 1995 From: "christopher tomlins" <clt@merle.acns.nwu.edu> To: BRODYIIR@CMSA.BERKELEY.EDU

Thanks for the first part of your response. This is a most helpful exchange. Best wishes CT


Date: Mon, 26 Jun 1995 From: BRODYIIR@CMSA.BERKELEY.EDU To: clt@merle.acns.nwu.edu

Chris: Sorry for the interruption....When I read your book (the second time, that is) uppermost in my mind was the question: can the evidence be read without calling into being your modality of rule? Only in a very limited degree do I have the resources of my own to do that, e.g., regarding the sufficiency of the economy of speed chapter. For the legal discussion, I h ave to depend on what you say, and one of virtues of the book is how full the the record is for the skeptical reader. Or, as I did, I can turn to what others say. I take note of your remarks in re Orren & Hattam, and I'd acknowledge it would have been better for me to assess more for myself how well their work stood up against yours. My excuse is sheer expediency: how much time should a book review take after all. In Hattam's case, I didn't find your discussion (155-6) dscisive, and in any case, the part of her argument that grabbed me was not in re ideology but the absence of much actual impact of the conspiracy doctrine until after the Civil War. Regarding Montgomery, the st aeement that impressed me was not what you quoted but the later one on p.47: that"the employers' awesome power would have existed whatever the discourse wi tr which it was sanctioned." We could argue at length, maybe indefinitely, about how much weight to give the master/servant doctrine in light of Montgomery's judgment. And, when get to the emplolyer liability issue, where I'm not leaning on others (Simon's contribution is strictly an empirical one, and you seem to accept it), we could surely argue indefinitely. As I read your detailed rebuttal, all kinds of ideas began pop into my head, but I don't want to be distracted from the main point I'm trying to make. It's not a question of whether you've written a good book by ordinary standards, but of the intellectual project that you've launched. To my mind, your book is very like Turner's frontier thesis or Beard's economic interpretation, only with a postmodernist twist that gives it added mystery; that is, to use a tired phra se, it wants to make a paradigmatic shift (the implications of which are in that IRRA commentary of yours). I really don't think this kind of claim is subject to empirical proof. It's power comes from its capacity to persuade othe rs that it's the right way to think about labor law. And I see more clearly than I did when I wrote the review that--because of the kind of historian I am--I was trying to show them why they shoudn't think that way.

I think it's in your interest to understand clearly that this is the project you've launched. The ILWCh article clinched it for me. There was my little review concluding with my magnification argument, and there's your artic le arguing that that household law is the foundation of labor and, moreover, that labor law offers the key to labor history generally. That's great stuff. But you have to accept the consequences of your initiative. Actually, there are two possibilities. The worse one is nobody will pay attention,and nothing will happen. The better one is they will, and a big debate will develop. But it's not going to be a debate in which you can expect to be judged by ordinary standards, or think it's unfair when people take you on in the way my review does. All the best, David


Date: Tue, 27 Jun 1995 From: "christopher tomlins" <clt@merle.acns.nwu.edu> To: BRODYIIR@CMSA.BERKELEY.EDU

Gee, you make me sound like Mephistopheles! Still, I take your point, and in a way it confirms my judgment, at the time I read the review, that you had penetrated to the pith. At the same time, there's an awful lot of background to your point of view that you have been making explicit in our exchange here, but which your review leaves either out or very implicit. It is this that in my eyes makes the piece less tempered (as I put it before) than I might have wished, and which led me to react against it. Please do not understand me to be expressing resentment at being made the subject of criticism. Criticism is the lifeblood of what we do. And of course, as you say, the worst fate is to be ignored. (As an aside, it is a matter of considerable personal satisfaction that people are still taking shots at TS&TU ten years after it was published). I just want to be criticized for the right reasons. The reasons you have been laying out here are the right reasons, and I think they help very concretely to define the turf on which vigorous debate could and should take place. I'm less certain that the review was successful in defining that turf, which is why I was somewhat frustrated by it. Perhaps it needed a couple more sentences up front that set the context as widely as you're setting it now. Without the context we do look like we're in a "foreground" cat-fight over matters of detail. My command of those matters of detail is important to me (one of the reasons the book is long and dense in parts is that I wanted to make a detailed argument, not simply advance general propositions), so I'll certainly dispute challenges to that command vigorously when they arise. But with the context added, those kinds of exchanges can also be debated out in perspective, and one has the opportunity to move through and beyond them and ultimately to concentrate instead on the main event -- which we clearly agree is precisely the event that you are now zeroing in on here. So, thanks for your time, good to be alive, and perhaps after all we should find a forum to do this more publicly. Best wishes CT


And, to our surprise, the forum we had originally considered became open after all. Here ends the "Crossfire" act. This exchange of opinion is now open to anyone who wants to join in.


 Chris Tomlins                    Tel: (312) 988 6553                           
 American Bar Foundation          Fax: (312) 988 6579                           
 750 North Lake Shore Drive       E-m: CLT@nwu.edu                              
 Chicago, Illinois 60611 [USA]     or  CLT@merle.acns.nwu.edu                   


Many thanx to Mel Dubofsky for continuing the discussion in such an excellent manner. SW


By now, I had expected some response to the "debate" precipitated by Chris Tomlins' response to David Brody's review of Chris's latest book in ILWCH. Perhaps the treacherous terrain of legal discourse and history, as well as the density of certain passages in Chris's book, has resulted in a certain reticence among list members. Let me, then, try a response, and, in doing so, lay my cards on the table--unfortuantely a hand without aces or trumps in abundance.

First, let me concede that I am not a totally disinterested party to the "debate." I include both Chris and David B. among those historians that I consider friends as well as fellow scholars and also among those whose work I especially admire. Moreover, I wrote a review of Chris's first book, THE STATE AND THE UNIONS, that could be compared to Brody's current review of LAW, LABOR, AND IDEOLOGY in that it treated the book much as the "Curate's egg," a common English allusion whose drift I am sure that Chris will understand. Like Brody, I began by praising Tomlins'scholarship and then proceeded to stress what I considered several weaknesses in his argument and evidence. And I also participated in a session at the 1986 meeting of the American Society of Legal History devoted to a round-table on the State and Labor in which I recapitulated the argument of my review. And just this year Chris returned the compliment with his review of my last book in the BUSINESS HISTORY REVIEW. I responded to Chris privately, taking exception to several of his criticisms, but preferring not to initiate a "great" or a "lesser" debate. I should also add that I was a member of the AHA committee that voted unanimously to award LAW, LABOR, AND IDEOLOGY the Littleton-Griswold Prize for legal history--and, I should add, that in my three years on the committee, including one as chair, Chris's was the only book to obtain such unanimous acclamation--our selection of his book for the prize was an absolute no-brainer.

Yet I agree with David B. that the better and more important a book the more it merits and should receive critical analysis. I will let list members judge for themselves the character of Brody's review (and if they haven't already, I do hope that they read carefully LLI, not an easy read by any means). Brody, I believe, is absolutely right about the larger purposes of Tomlins' current scholarship on the law, i.e. that Chris intends to change how we think about the past and to convince us that the law, in all its meanings and ramifications, has decisvely determined the most basic social, economic, and historical relationships, what CT calls "the modality of rule." I also think that Brody is correct in comparing that argument (hypothesis) to Turner's frontier interpretation and Beard's economic interpretation. I use the word "interpretation" instead of "theory" intentionally, because unlike what scientists, mathematicians, and philosopers mean by "theory," Turner, Beard, and now Tomlins make large claims for explaining how the past actually happened (not one, of course, intended that in a Rankean sense) that are not subject to "real" proof or disproof, the test of a theory. Tomlins is interpreting not theorizing the past, and his interpretation, like any interpetation, is subject to criticism, not disproof, and that is precisely what Brody did.

Let us examine more carefully some of the specific issues treated in the book, Brody's review of it, and the exchange between Brody and Tomlins. The bulk of the exchange concentrates on Tomlins' treatment of the development of the law of labor conspiracy, tort law and industrial accidents, and the applicability to master-servant common law concepts and rules to a free-labor, wage-labor order. From my perspective, and I may be totally wrong, Tomlins' treatment of those subjects is also like the "Curate's egg," only in part bad. Tomlins reading of the cases impressed me greatly; indeed, his reading of the famous Commonwealth v. Hunt and Judge Lemuel Shaw's opinion is absolutely the wisest and most sophisticated now in print. His critique of Hattam and Orren is also to the point and well taken. And, most important, I must accept Tomlins' contention that the law rendered nearly all employment relations fundamentally unequal. All that granted, however, there are parts of Tomlins' argument to which I must take exception. Let us begin with the law of conspiracy. As Tomlins knows well (he does cite Herbert Hovenkamp in his notes), the common law conspiracy rules used against unions applied equally to business combinations (and that, after all, was also one of Hattam's primary points), fit well into the sort of "republicanism" that Tomlins admires in his section on "police" and likely were to the satisfaction of many common working people and farmers. That, in practice, conspiracy law caused workers' organizations a heavier price than employers' associations I will not deny. It is also extremely difficult to prove that conspiracy cases affected substantially the fate of trade unions. The depression of the late 1830s-early 1840s did more to silence workers and weaken their organizations than legal decisions. And we know that the affiliates of the AFL experienced their most rapid growth during the heyday of labor injunction law.

And Chris, I think, also plays games in his reading and interpretation of tort law. He claims, e.g., that...courts distinguished responsibility to employees from responsibility to others even though, factually, there was no basis for any such distinction." "Factually no basis for distinction"--come now. For the judges who handed decisions such as Farwell, there was indeed a factual distinction between employees and patrons (passageners and shippers). Employees were defined as free laborers who consciously and knowledgably assumed the risks of their employment and in return received a wage commensurate to the risk. By contrast, passangers and shippers paid a fee to the RR, whose management promised safe and satisfactory passage. And Chris is honest enough to cite in full on p. 367 of LLI a Justice Merrick, who ruled that "the knowledge, that no legal redress is afforded for damages occassioned by the inattention or unfaithfulness of other laborers engaged in the same common work, will naturally induce each one to be not only a strict observer of the conduct of others, but to be more prudent and careful himself...[which would promote] the welfare and safety of all." Yet Chris writes in the debate that "law doesn't alter to accomodate different fact situations." True in part; law doesn't change but different facts do affect how the law is interpreted and implemented. Let us take the case of Tomlins' sailor (p. 383, LLI). Why should not a judge assume that any veteran skilled sailor who signed on a voyage understood that he was paying paid to assume the risk of climbing aloft to manage the sails in a storm? If, however, the captain ordered aloft a cabin boy or a rank apprentice sailor, would the judge apply the law in the same manner? And, as Tomlins well knows, such contemporary exemplars of the law and economics movment as Richard Epstein and Richard Posner argue that 19th century judges had it precisely right in the matter of tort law as applied to industrial accidents.Using the findings of econometricians, Posner, Epstein, et. al., argue that employers' liability and workers' compesnsation increases work-related accidents owing to a decline in employee diligence. (See also Price Fishback's book on bituminous coal for a similar argument). I may not agree with any of that but the implications and practical effects of tort law in the realm of industry are not quite as crystal clear as Tomlins suggests.

Tomlins also wants to suggest that legal rules and interpretations concerning labor contracts, flowing largely from the common law of master and servant, rendered employees largely subservient in the 19th century. I would be that last to deny that where actual or implied employment contracts existed, judges usually, but not always, interpreted them to the advantage of employers or masters. But as free labor, in theory and practice, and the concept of employment at will spread, how many common workers labored under written or implied contracts? Certainly what we know about labor turnover and workers use of exit rather than voice suggests that few workers felt chained by whole contracts. Chris may be right about the impact of the law on those workers who fell into its embrace but what proportion of the labor force was actually constrained in its behavior by such rules. Sometimes numbers and statistics are helpful. And how many workers even in what Tomlins' calls the economy of speed (is that Al Chandler's economy of throughput) felt the heavy hand of work rules and supervision. In Walter Licht's study of RR workers, one finds the employees complaining about the absence of rules, clear supervision, and precise work norms--they seek more rules and regulations, not fewer, and turn to unions as one means to achieve a more ordered and stable work world. Or are all employees incipient anarchists?

One final point needs stating. Chris plays master-servant law in a major key and free-labor law in a minor key. Personally, I found Robert Steinfeld onthe invention of free labor more convincing than Karen Orren in BELATED FEUDALISM. Chris is aware of Steinfeld and also Jonathan Glickstein, as his notes attest, but seldom challenges them directly. I wish that he had developed at greater length the contradiction that judges faced in using master-servant concepts to buttress employer authority while also applying the law of free labor. After all, free labor law made Farwell consistent and intelligible; master-servant law would have rendered such a decision inconsistent and unitelligible. Servants owe a duty to their masters but masters also owe a responsibility to their servants; employees sell their labor to an employer who promises them a wage in return but not any responsiblity for their well-being. 19th century law, I think, is more contradictory than Tomlins' interpretation allows.

Two things now I hope. One, that much, if not all, of the above makes a little sense and perhaps pushes the debate along. Two, that Chris does not think me a hypocrite for having voted enthusiastically to award his book a pretigious prize in legal history and now having joined in part David B.s' critique of the book. I do hope that others more or less knowledgeable about 19th century law join the debate.



Thanx to Eric Tucker for this valuable contribution. SW


I have read with some interest the first installments of the so-called great debate. It seems, actually, to contain within itself questions big and small. Readers may be somewhat hesitant to jump in because the larger, more substantive and interesting questions are inter-woven with highly personalized issues that, to an extent, obscure what I think is at stake here. This is easy for me to say because it is neither my book nor my review that is under the microscope and I do not have any personal or professional scores to settle with any of the participants (so far). I have never met David Brody or Melvyn Dubofsky, but Chris Tomlins and I have been together on a number of occasions and have discussed our common interests amicably.

Let me add a further caveat to my intervention. I must confess that I have not read *LLI* in its entirety, but I have read almost all of Chris' articles building toward the book. Also, my background is mostly in 19th and early 20th century Canadian labour law history. I know little about post-Revolutionary American legal history. Therefore, I approach these issues not as an expert in the specific subject matter of Chris's book, but rather from my efforts to develop a way of understanding and analyzing the relations between law, labour and the state.

The first question I want to turn to is concept of a "modality of rule." I take it to be uncontroversial that social relations of all sorts are institutionalized in particular ways and that there is some significance attached to the way they are institutionalized. Indeed, quite a diverse range of labour historians, legal historians, political scientists and industrial relations folk have been calling for a "bringing back in" of institutional studies because they believe that the pattern of institutionalization of class relations can explain, for example, why some labour movements are faring better than others in the face of similar structural and conjunctural crises. My question to Chris is what conceptual work is the "modality of rule" supposed to perform and how, if at all, is it different from the concept of insitutionalization of (unequal class) relations? Are both simply constructs which invite us to examine how power is organized and represented and to explore its significance, or is your formulation designed to do more (or less) than that?

The second set of issues relate to law as a modality of rule. There is an empirical question which seems to be in play: was law "the" modality of rule in the early republic, or, perhaps, were class relations institutionalized "primarily" through law as opposed to politics. I sense that both David and Mel are sceptical of this claim, but neither feel they have the expertise to take it on. I too will not venture onto that terrain. For what it is worth, my reading of Upper Canada/Ontario during the early to mid-nineteenth century leads me to conclude that common law was not nearly as central either as a material force or as a centre for the production of discourses through which unequal power was constituted and legitimated. Rather, common law was one component of a diverse set of institutional and ideological apparatuses that maintained a hierarchical social and economic order. Moreover, it was not a particularly important channel for challenging that order. None of this, however, adds to the (needed?) debate about the salience of law in the American republic. Perhaps there are some readers out there who feel competent to take on this aspect of the debate directly?

To the extent that law is a modality of rule, however, there are a number of important questions that the debate has raised about its operation. First, there is the question of the relation of law to the economy, a question central to modern legal history. Chris wants to avoid the reductionist trap of reading law off of the "needs" of capitalism. At the same time, he rejects the view of law as wholly autonomous from the economy. Most would agree with his rejection of these extremes. Chris rejects the "relative autonomy" of the law because he finds it an ahistoric construct. Certainly, it is a weasle phrase that can mean lots of different things, and Chris is right in insisting that we need to historically understand law's autonomy, both its degree and its sources. In his interlude (294-7), Chris states: "What is law' at any given moment is determined by legal discourse's own rules of formation rather than by its proponents' obedience to an overweening exterior influence." Chris presumably does not mean to adopt an ahistoric and autonomist position as the quote might suggest, because in the next sentence he describes discursive practice as a mediating factor, not a determining one. There is, I think, some tension in these formulations, which reveal the difficulty inherent in theorizing a very complex relationship, and I am not sure that resort to "law as a modality of rule" solves the dilemma. I for one think that law's internal characteristics tend to be more mediating than determining, especially when questions of class power are at stake, but the matter is not resolveable at the level of theory.

The *Farwell* case has received a lot of attention in this debate, as well as in much 19th century legal history. Employers' liability law had to be created by the courts, as judges frankly admitted. In my view, past precedent and the rules of discourse did not determine the result; Ideology did. Shaw's judgment inscribed into this body of law the ideology of freedom of contract. While judges were one source for the production and distribution of this ideology, they could hardly claim to be its principal creator and promoter. Legal discourse did not look very different from classical political economy on this issue.

While we're on the *Farwell* case, I might add a few words about two aspects of the discussion of this case: factual distinctions and work discipline. It is a considerable stretch to describe *Farwell* as a case about the finding of facts. Indeed, one of its greatest achievements was to eliminate the need for courts to consider the particular facts of each case. The plaintiff in *Farwell* argued there was an implied duty in the contract of employment that the employer would provide for the safety of its servants, including the protection of servants from harm caused by the negligence of fellow servants unless they were both engaged in a common endeavour such that each one had the ability to supervise and control the other. Shaw rejected the view that the employer owed a duty of care, both on the ground of justice and policy. The justice argument was derived from freedom of contract ideology and an idealized view of a capitalist labour market in which fully informed workers bargained with would be employers over known risks. A worker who entered into employment with known risks, including risks from co-workers, was presumed in law to have assume those risks. The policy was the promotion of safer working conditions resulting from the incentive effect of denying liability: employees would monitor each other's behaviour and report negligence to the employer. However, when Shaw was pressed to consider the fact that the plaintiff, a locomotive engineer, had no opportunity to observe the actions of the negligent switchman, he abandoned the policy argument for the contractual (justice) one : "It :the employer's liability: would vary with the circumstances of every case."

It seems, then, that what is allowed to count as a legally significant fact is highly dependent on the overarching aims of the judiciary. They found it desirable to distinguish between passengers and employees but not among employees depending on their proximity to the negligent fellow servant. They chose to deny legal significance to the inequality between workers and large employers, like railway companies. (The refusal to acknowledge the relevance of material inequality is, perhaps, the most significant silence in the common law.) These choices need to be explained. The result in employer liability law was that most actions could be disposed of as questions of law - it was presumed that risk was voluntarily assumed by virtue of the existence of a contract of employment . Amongst other advantages, this kept cases out of the hands of the populist element within the common law system, the jury, and enabled the judges to administer the system as they saw fit.

On the point of control, Shaw's judgment is clear. A goal of the no-liability rule was to enhance the control of the employer over a widespread group of employees who were not under the employer's immediate control. This is not to say that control was the primary goal of employers' liability law or that employers' liability law was the primarily means for asserting that control. On thefirst point, clearly Shaw was more interesting in his "justice" argument than his flawed policy justification. On the second point, in Canada at least, the assertion of control over railway workers was a major railwayr objective, pursued most vigorously by endowing railway companies with the authority to promulgate rules enforceable in court and by charging workers with criminal offences, including manslaughter, arising out of accidents.

Another aspect of the "law as a modality of rule" is the question of the ideological effect of legal discourse. I have no doubt that judges fervently believed that they are (were) required to justify their conclusions through arguments that adhere(d) to the internal discursive rules. As I indicated, I doubt whether those rules are very often determinative of the outcome where class issues are at stake, but that does not alter the reality that justifications of a particular kind are offered. Whether that peculiar discourse has an ideological effect, however, is a very different question. Doug Hay, in his essay in *Law's Violence,* asks us to distinguish between different audiences. Those who benefit from law's word are predisposed to believe it; those who suffer its consequences are more likely to experience law as coercion.

Again, while the question of ideological effect is an empirical or historical one, we might again consider employers' liability. In Canada, despite the rhetoric of freedom of contract, individual autonomy et al., legal discourse did little to legitimate employers' liability law either among that sector of the populace that served as jurors or among workers represented by unions. The legal rules could only be made effective by excluding the jury which was likely to find for the plaintiff regardless of the judges' instructions and workers demanded legislative reform of the common law (which they obtained in the 1880s). Indeed, so unpopular was this aspect of the common law in Ontario that, I suspect, judges welcomed the statutory reforms modifying the employer defences, if only because they perceived that the law was being brought into disrepute because of the harsh results it generated.

In short, from my perspective, the debate asks us to consider the relative importance of law in the institutionalization of class relations at different times and different places. Second, it asks us to consider the effects of legal institutionalization; that is, what is distinctive about law's modality and how does that impact on the development of class relations in capitalist democracies. Not surprisingly, these questions produce sharp divergences, but I trust we can proceed to debate these issues productively, and without too many hard feelings.

Eric Tucker Osgoode Hall Law School York Univeristy etucker@vm2.yorku.ca



Thanx to Howell Harris for this valuable contribution. SW


On the Mobility of Labor

I've been stimulated to write this research note by the `Great Debate'--at least, by Mel's highlighting of Chris's claim that law played an important role in the creation and perpetuation of dependency among US workers through the mid C19th.

While waiting to find out if my Philadelphia ms. is going to be accepted for publication or not, I've been working on my next project, which will be a history of the US foundry industry (technology, business organization, shop culture, craft community, industrial relations) c. 1850-1930+. One of the features of the molders' craft community that has interested me for years is its mobility, and the way in which the union *organized* its members' movements, facilitating and controlling them at the same time . From the Iron / International Molders Union's earliest days, it maintained a membership card system which was supposed to keep members under union discipline even when they left their home local, to encourage them to remain in good standing (e.g. by being up to date with dues, and not going to work in scab foundries), and at the same time to make sure that they would be accepted as *bona fide* union members on a par with the resident workforce when they looked for work in communities on their travels. (For the classic description of the traveling card system, see Ulman, *Rise of the National Trade Union*; cf. Monkkonen, ed., *Walking to Work*, Pt. II, and Cooper, *Once a Cigar Maker*, for its operation in other pioneer US craft unions).

In order to operate this system, locals' Corresponding Representatives (hereafter CRs) were supposed to send in monthly reports detailing all significant changes in the composition of the membership--initiations, admissions "by card" (i.e. of traveling me mbers from another local), "cards granted" (i.e. members leaving the local to find work elsewhere), members leaving without a card and/or in arrears, members suspended (usually for non-payment) and expelled (usually for persistent non-payment, or scabbing). These reports made up almost the whole of the early monthly *Journals*, and always remained an important part, even as the *Journal* developed into a members' magazine with editorials, articles, workers' poems, and a letters section.

By the late 1860s a further refinement was added: thereafter, members were identified by a unique serial number, as well as by name, obviating the difficulty of knowing which particular Patrick J. O'Connor had moved from Utica to Rome, and removing the `nominal linkage' problem almost entirely.

This system persisted with few modifications until the early 1900s, when the rise of the open Shop forced a change: nationwide employers' associations (the Founders and Metal Trades) and their local branches realised that the Molders' Union was offering them, free and in public print, data about (1) who to blacklist, and (2) who to recruit as scabs--i.e. members initiated and admitted by card, and members suspended or expelled, respectively. So the publication of names ceased, and thereafter the information was only intelligible to local and national union officers, who could link a number printed in the *Journal* with that on a card before them.

Anyway, the beauty of this data source, for an historian interested in the craft community and its workings, is that *in principle* it ought to be possible to follow the careers of a significant proportion of union members over a long time-period. By loading this information into a database management system (a tedious business!), and tieing it in with a geographical information system, it should become possible to measure and map the job-searching behavior of thousands of `tramping artisans' over long stretches of their careers, which should help produce findings of interest to social historians, labor economists, and even human geographers.

To test this possibility, to familiarize myself with the data and its manipulation, and to lay foundations for the full study, I have recently been constructing a pilot database containing (1) names, offices, and local affiliations of leading union activi sts through the 1860s (the period of the union's first flush of growth under the presidency of William Sylvis, and post-Civil War decline), and (2) the entire contents of the monthly reports for 1864, the first year of the *Journal*'s publication.

Sources for (1) were unproblematic--Convention proceedings, mostly. The few hundred individuals located were enough to test and refine database structure. The monthly reports, though, are full of holes.

Some of these are physical: I'm working from a microfilm copy which truncates one month, missing c. half the reports, and which renders some other entries illegible. With luck, I can make up for these deficiencies from hard copy. But other omissions are unrecoverable. Some CRs, who were after all full-time molders in an extremely busy year, did not bother to send in monthly reports at all, or only sent in totals of initiations etc., but no names--in fact, the busier the month, the more likely a CR was to report e.g. "15 initiated, too numerous to list." Some reports were lost in the mail. Others missed the *Journal*'s publication dea dline, and as its editor (who spent his last months in office confined to his bed by sickness, and whose own effectiveness was not 100%) judged the information useless if it was not timely, late reports were binned rather than preserved or printed subsequ ently. My best estimate is that, for all these reasons (among which the quality of my microfilm copy ranks quite low), no more than 2/3 of monthly reports for 1864 actually made it into the *Journal*, or existed in the first place.

Still, even imperfect data are usable with care. The first thing one can do is to estimate the Union's membership. Reports on local strength given in Convention Proceedings are very unreliable: as these were the basis on which annual contributions (5 c ents per member) were given to the International, locals had an incentive to under-report; or they simply reported round numbers; or they neither reported nor contributed. As a result, reported membership for 1864 was just 3,405. If, however, we produce a mean membership figure for each local from all its CR's monthly reports, and total those average figures, we come up with an estimate for IMU membership in 1864 of 5,838. This figure is quite robust: better than 90 percent of it comes from establish ed locals making at least 4 (average: 7) usable monthly reports throughout the year; new locals in what was after all a growing organization, and barely-active or uncooperative established locals, make up the remainder.

The second thing one can do is examine the makeup of this membership. In 1864 there were *at least* 1,809 reported initiations, 1,413 admissions by card, and 1,513 traveling cards granted to members. A crude but not unreasonable procedure, considering t hat about a third of monthly reports did not survive to contribute to these totals, is to increase these figures by a half. (It's clear, from individual records, that there *are* masses of omissions--a member will move from one local to another across a few months, and often either the "card granted" or "by card" information will be missing, sometimes both).

What we have, then, is a union with fewer than 6,000 members who generate perhaps 2,120 *exits* and 2,270 *entrances* between them. These are movements between locals, not movements between jobs. Movements between foundries *within* a local create no re port; and movements into non-union foundries and towns while molders were `on the tramp' went similarly unrecorded. (They were disapproved of in principle, but unpreventable in practice--rather like piecework). Spells of work in non-foundry occupations were of no interest to the Union, but were certainly a feature of the molders' life on the road. The upshot is that this is a *minimum* figure for job-related geographical moves.


The picture that emerges from molders' *behavior* is of a craft labor force unrestricted by contracts of employment or other legal restraints, thoroughly familiar with the laws of supply and demand and the state of the labor market in different communities across the whole developing industrial belt. (Most monthly reports contained brief information about this, in 1864 usually to the effect that the market was nice and tight). They acted collectively (striking) and individually (quitting) in order to get all that the market for their labor, and their bosses' product markets, would bear. It is, in short, a labor force whose behavior is attuned *precisely* to notions of freedom of contract and employment-at-will (on BOTH sides). Or so it seems to me.

(Casual remarks in the monthly reports are illustrative of the craftsmen's economistic thinking, which if it became too individualistic rather than mutualistic caused problems for the union itself--in January 1865 the Branford, CT local reported that "Our ex-Treasurer has turned scab; he considers it more beneficial to him than to be a Union man"; the New Bedford local reported on another who had left the union when asked for his dues, "because it would be an everlasting disgrace to him." Presumably he was *too* republican in his sentiments).


The absence of legal intervention is very striking. I am most familiar with metal trades labor relations in and after the development of judicial harassment in the 1890s-1900s. Anybody who has read about "government by injunction" will be impressed by the number of cases involving the tough and turbulent foundry crafts in those years, and indeed later. In 1864, the *only* state interventions that matter are (1) the draft (which resulted in a vast amount of temporary movement across the border into Cana da, otherwise an unattractive labor market), and (2) competition from prison labor (at Sing Sing) and organized immigration of strike-breakers (from Prussia, to St. Louis--the move backfired, because the Prussian molders joined the union *en bloc* once th ey knew why their boss had brought them over).

Strikes are orderly, almost ritualised, withdrawals of labor, incidents in an ongoing but essentially private relationship between individual (or locally, usually informally organized) employers and their organized workers. The report from Troy in March, 1864, illustrates the behavior and the language of bargaining conflict nicely:

"We got an advance of 10 percent. last year, and have now got an addition of 15 cents on the dollar, making 25 percent. above the prices of 1862. Most of the proprietors objected to it because Albany did not pay so much. They offered 10 percent. advance , but we couldn't see it. Then they wanted further time for consideration. We granted them all the time they wanted while we walked around for fear of disturbing their considerations. After a week's idleness they set us to work again. There was one ho norable exception. Mr Cox gave the price without a word--his shop was not still a single minute on that account. I don't think the rest of the proprietors thanked him much."


Now of course these individual and collective behaviors, by members of one of America's earliest and best-organized crafts, during a boom period, are hardly representative of the *whole* (even free, white, adult, and male) workforce. Or at least, not in all particulars. But surely *everything* we know--from community studies, or from research into labor markets--about C19th. (and even pre-Great depression) US working people is that very high rates of movement from job to job and place to place were the norm. This is not to argue that there was in any real sense equality in `individual bargaining' between employers and workers, but it does lead me to doubt how important a role (if any) the law had in constituting the essence of the employment relationsh ip. I'd put my money on the market (only *in part* a creation of the law) and the Culture any time.

NOTE:

This research is at a VERY early stage. Any comments--about possible sources, interpretation, methodology--will be very welcome. 1864 has contributed about 3,350 individual records (if I can find good copies of MAY, pp. 18-19, JULY, pp.40-41, 64-65, the missing pages of SEPT, pp.69-76, and DEC, pp.113-6, I might raise that total by about 100), i.e. perhaps as many as a half of the molders who were members of the union, or passed through it.

The interesting features of this data source, as compared with the census and directory data on which most community studies have been based, are that (1) it's actually *better* at picking up the `floating' rather than the stable element among the population; and (2) it offers fairly precise, fine-grained detail about *month-to-month* mobility rather than the community studies' typical finding that up to 40% of sampled individuals present at one census have disappeared by the next.

Of the 3,350 molders recorded thus far, 1,012 were newly-initiated members; 971 were admitted to a local "By Card" at some stage in the year; 1,061 picked up traveling cards and took to the road; 485 have been traced in two or more locals during the year. (Many of the "By Card" and "Card Granted" reports, which imply at least one previous or subsequent affiliation, are the only data on individuals in the pilot survey year--but I'm confident that pushing on into 1865 *et seq.* will find out where many of these guys went); and 932 have only one recorded location. The first four categories are non-exclusive: their combined total is 2,417, so we have a ratio of "floaters" to "residents" of 2.6 : 1. The longer the time-period I can cover, the more representative the sample of IMU members will become, because of the accumulation of opportunities for "residents" to figure in the reports.

There are many variations in the spelling of names, and there are quite a few instances where nominal linkage is difficult because the names are too common and other detail which would help ascertain that one is dealing with the *same* Patrick J. O'Connor is lacking. There is thus a degree of unreliability, but for the most part it *is* possible to create "narratives" of individuals' moves from the accumulation of data. Thus, for example, we have an entry for a very mobile, very active member: (each line in the detail block is a separate "spell"):

BECK w Wm. F. #029 Brantford, ONT

Y+Rec SEC:

/R&CS&CR #029; BC Jun #027; BC+CG Sep #037; BC Oct, CG Nov, BC Dec #026; BC, /PR Dec

What this shows is that William F. Beck was a delegate to the 1864 convention, and the union's national Recording Secretary. He started 1864 as Recording and Corresponding Secretary and CR of his Brantford home local, moved in June to Cleveland, Ohio (note: there is no preceding report of a Card Granted--the monthly return is missing, possibly because Beck, who should have sent it in, was himself on the road), left with his card sometime that summer, but was again omitted (this time from the Cleveland report), moved back to London, Ont. in September for a brief sojourn of less than a month, worked in Hamilton, Ont. in October, left in November, came back in December, and arrived back in Brantford later that month, in time to be elected local president. Where, if anywhere, he worked *between* organized foundry centers is of course unrecorded.

Clearly, the min. 1,413 recorded (2,120 estimated) entrances and 1,513 (2,270 estimated) exits are not the product of as many individuals, and because of CRs' bad habits (sending in totals rather than names), my count does not include all of these, so in a proportion of cases I can't get behind the aggregates. Some members, like Beck, were highly mobile; others did not move at all, and only show up in the records (1) when they join, and (2) if elected to a local office. (In a small local, however, a fu ll complement of officers could be a substantial fraction of the membership; and turnover by, or rotation among, officeholders, means that a good number of stable resident members *do* figure in the records).

Many readers will know of Peter Knights' work (*Yankee Destinies*), and about how much time and sweat had to put in to find out where some of his Boston "disappearers" went. The Molders' records allow one to pick up individuals and track them around quite easily: Beck would probably (this is guesswork) *count* as a Brantford resident, a householder or even a property-owner, for directory or census purposes. The reality is, however, that like thousands of his fellow-craftsmen, working in an industry where employment in individual foundries and communities was highly unstable, and in which there were great disparities in wage rates between communities, he was more often away from home than actually settled. His "primary affiliation" was to his craft identity (which made him widely employable in a semi-integrated transnational labor market), and to his union, which helped him in his moves from place to place.


If any H-LABOR readers can help me with hard copy of illegible/missing pages, and offer advice or comment, I will welcome it, thank them, and look forward to a fruitful correspondence.

Quite a way from the small point in the `Great Debate' which started me off, but that's what H-LABOR contributions and controversies are all about!

Howell Harris


Office Address:-------------------------------- Department of History,

      43 N. Bailey,                                                             
      Durham DH1 3EX                                                            
      ENGLAND                                                                   

Phones:---------------------------------------- [0] 191 374 2015 Direct

           4754 Fax                                                             
               2012 Messages                                                    

E-Mail:--------------------- h.j.harris@dur.ac.uk [Personal and Research]

hist.comp@dur.ac.uk [Teaching]


Date: Thu, 24 Aug 1995 08:31:23 EDT

Here is Chris Tomlins' final [?] word. I will be putting the entire discussion on the H-labor gopher early next week which may stimluate further comments. SW


When David Brody and I were discussing the possibility of reviving our private exchange on his review of my book (*Law, Labor and Ideology in the Early American Republic*, reviewed in *ILWCH* 47, Spring 1995, at pp.144-47) for the edification of the world at large, I recall one of us (I think it was me) observing that the world had probably gone to the beach for the summer and could care less. Of course, there is a certain geographic determinism about that observation. I'm conscious (maybe peculiarly so) that some of our colleagues on H-Labor are resident in the Southern hemisphere where it isn't summer, and so are not at the beach (or at least shouldn't be). Be that as it may, despite waiting hopefully, interest in our exchange seemed to wane after the first few days. I prefer to attribute that to the season rather than the subject. (For myself I spent 4 relaxing days in Michigan sitting beside a lake, and I didn't see a single militiaman.)

I was, nevertheless, greatly stimulated by the contributions that did come in--from Mel Dubofsky, Eric Tucker, Chris Waldrep (via H-Law) and Howell Harris. Let me try to respond, briefly.

[First though, a preliminary. Eric Tucker wondered whether the tone of this exchange had carried some personal baggage. Given that it began as a private exchange and only subsequently became public (and given that we agreed not to edit it but just to let it hang out) it's not all that surprising that our tone might have seemed more robust than is normal scholarly discourse. On the other hand there's a difference bewteen frank and strenuous disagreement and active nastiness. There are lots of issues that I'll always fight David and Mel on, but I don't think any of us would want our fights to be interpreted as anything other than honest disagreements, and certainly not rancor. Indeed, in the spirit of Mel's confessional, I should reveal that some years ago when I was in transit from Cambridge Mass. to Melbourne David put me up for a night on his basement waterbed.]

Mel Dubofsky finds David's critique of LLI on the whole wise and fitting. Using a phrase I know is a favorite of his when it comes to books, he calls LLI a "curate's egg." To the uninitiated, the description derives from a cartoon *Punch* published about 75 years ago, featuring a curate at breakfast with his bishop, who asked his guest how he liked the boiled egg he had been served. "Good in parts" was the best he could manage. Thankfully books are more seperable than boiled eggs -- rarely are they wholly good or wholly rotten. In my case Mel thinks some of the case readings are good (I am grateful for his nice comments about *Hunt* on which I labored long and hard) but argues that elsewhere I elide material that needs comment and play some games with facts.

The principal elided material, according to Mel, is that common law conspiracy was used against business combinations. Mel refers to work by Herbert Hovenkamp and Vicky Hattam. But neither Hovenkamp's *Enterprise and American Law* nor Hattam's *Labor Visions and State Power* contains much in the way of sustained analysis of antebellum criminal prosecution of employer combinations, so there is no real evidence-base to evaluate Mel's assertion. Tellingly, perhaps, Tony Freyer's recent and valuable study *Producers versus Capitalists* (where one might have expected to encounter corroborating research if it were there to be found) offers nothing on this score. Hovenkamp and Hattam also in any case contradict each other, the former arguing that the antebellum period saw combinations of both labor and employers equally tolerated (EAL 216), the other that working people accepted the use of criminal conspiracy against labor combinations because it was also used as a check on employer combinations (LVSP 105). Hattam provides no antebellum case evidence to sustain the latter claim and acknowledges both the lack of conspiracy prosecutions of employer combinations prior to the late 1860s and their failure when attempted. (LVSP 59, and nb fn.81)

[I'd also like to toss in an additional thought on this, one that is not reflected in LLI. Both historians and lawyers have tended to treat a combination of employers and a combination of employees as equivalent phenomena because both are combinations. But it has always seemed to me that this is wrong because the units aggregated by the act of combining are completely unlike. A single employer reliant upon anything other than the invested capital of one person is already a combination -- it is a combination of capital taken from two or more sources and pooled for mutual benefit. A local, regional or national trade association, or a trust, or a pool (severally the prime objects of antimonopoly hostility during the 19th century) are all combinations of pre-existing combinations. It seems to me more appropriate for purposes of comparison to treat the appropriate units of "combinations" as a single employer on the one hand and all the employees of that single employer on the other.]

Mel's second major point deals with "facts," with which, he says, I play games. Facts are slippery phenomena, however, and I think Mel's post illustrates some of the perils toward which they can lure us. For example, he says factual distinctions are important to legal opinions, but in the next sentence indicates that the basis for factual distinctions is definitional. (Judges *defined* employees as free people consciously and knowledgeably assuming the risks of employment). Obviously if I have control over the meanings attributed to facts because I get to define those meanings, then I am going to appeal to facts all the time. On the other hand should I expect my audience to let me get away with it? If I'm a judge, maybe. Not if I'm a historian. Having equated fact and definition, Mel--equally riskily, to my mind--a couple of sentences later equates fact and assumption. Why shouldn't a judge assume that a skilled sailor would know that in accepting a wage he knew that he was accepting responsibility to put his life at risk climbing rigging in a storm. There are several points here. First, a judge's assumption doesn't make possession of knowledge a fact. Second, Mel himself inserts the issue of experience into the case. This is a red herring. No mention was made of it in the original (ie no distinction was drawn between a law of experienced fellow servants and one for inexperienced fellow servants.) Green hands suffered along with the canny. See e.g. Hayden v Smithville Mfg Coy, 29 Conn 548 (1861), in LLI, p.371, fn 113.). Third, in any case the point being made by the court was not that workers were paid for shouldering risks but that redress for accidents resulting from superiors' errors of judgment was bad for discipline.

Mel also raises some other points: (1) about master and servant law. He asks how many common workers labored under written or implied contracts? Legally, once they had entered someone's employ, every one of them. "Contract of employment" describes a relationship not a document. The relationship has certain incidents that exist independent of the parties' volition. (2) about rules. Here I don't see what we're disagreeing about. My point was that the workplace was deadly because it was a disorderly place. It was disorderly because order was subordinated to profit. Why do employers hate safety regulations, whether its a 10-hours limitation in the 1840s or OSHA in 1995? Because they interfere with power relations on the floor and because they force the pace of work to slow. That's what my "mechanism" chapter is all about. (3) about the need to explore the contradiction between master/servant and free labor. I agree completely with this point. I also agree that industrial accident law is very fertile territory for that exploration. I guess I thought that the contradiction that Mel refers to--of the irresponsibility of authority--was central to what I was doing in Part III (see eg LLI pp 362-3).

Eric Tucker's comments I found very enlightening. It will be difficult to deal with them briefly. He asks about the conceptual utility of "modality of rule" as a theorization of law. At one level it is an attempt to explore implications of the conventional liberal description of the ideal of the "rule of law." If we are to be ruled, then better we be ruled by law, says the liberal. That may be true, but that makes law, for better or worse, a modality (means/method/procedure) of ruling. So we should explore law as such. As a modality of rule, however, law brings baggage, because it is a discourse framed by history. And much of that history has had to do, as Eric suggests, with the institutionalization of relations of inequality. By modality of rule, further, I wanted to bring in a sense of law that escaped the merely instrumental by recognizing that methods and procedures have consequences for outcomes that derive from their own "ways of doing" things and that law is an extraordinarily rich procedure steeped--particularly common law--in a determination (largely successful) to control its own history, language, organization. So Eric's suggestion that "modality of rule" means "procedures for the institutionalization of class relations" is close but not quite enough for me. "Means for the organization and representation of power"--his alternative--is better, but only as long as one recognizes is that the means are part of the power and not just a delivery system. I agree with Eric that tensions in the formulations I have tried to develop are not resolvable as matters of theory, which is why I am suspicious of blanket attempts to theorize a universal stance for law, like "relative autonomy." Tensions can only be explored and refined empirically, in our case in history.

Eric also asks about my formulation of law as "the" modality of rule. My conception of the early republic is very much one of engagement between a strong democratic political culture based on the ascendancy of manhood suffrage (white male heads of household) on one hand and anxious elites taking institutional refuge in parts of the polity that could be walled off from the *demos*. I see law and professional juridical discourse as the hub of the latter. There are all kinds of cross-cutting phenomena that complicate this picture, for example alliances between elites and plebs in some parts of the country on some issues. There is also, as Rob Steinfeld demonstrated in a lovely article a while ago and as Alex Keyssar has been broadly hinting on a larger scale more recently, unremitting warfare to shrink the political nation. Nor should one expect the output of a democracy to be per se edifying. All I want to do then is venture, without knowing much of anything about Canadian/Ontarian politics in the early/mid-19th Century, that it was more like contemporary British politics than American, that it had less mass democratic potential than contemporary American politics, that it was more susceptible to elite control, and thus that law was less important as an independent power base/base of control and could simply (as in England) be one of a number of means of maintaining order.

As to *Farwell*, I think Eric and I are in complete agreement as to the role of "facts" in the decision. As he underlines, when confronted with facts that questioned the basis of the no-liability rule he was articulating, Shaw actually read facts out of the decision as mere "circumstance."

Let me comment very briefly on Chris Waldrep's suggestion that I am revising Morty Horwitz's argument. I had not thought of it that way, and it was not my intention. Nevertheless, whether by way of confirmation, refutation, revision or whatever, if my work can help draw continued attention to the Horwitz thesis, now entering its third decade, I'm delighted to be of assistance -- *Transformation I* is certainly a book that did a huge service for American legal history and I hope legal and other historians will continue to read it.

Finally, on Howell Harris's suggestion that mobility disproves dependency in employment, at least for free, white, adult, male workers. The question here is whether mobility is part of the definition of an employment relationship. Freedom to leave without penalty is very important -- not all had that freedom by any means: sailors? sharecroppers? Opportunity to leave is doubly important (one has to have somewhere to go -- here too Howell's molders look to me considerably advantaged compared with the mass). But Howell concedes their advantage and I see no reason to pursue either of those fronts. The actual issue is a bit different. 19th C Master and servant law defined the employment relationship as one of superiority and subordination, and writes legal rules for that relationship from which certain consequences flow--such as (to return to the fellow servant rule) the employer's right to exercise authority irresponsibly without redress, the right ro expect fidelity without a countervailing obligation to return it, and so forth. Of course "the market" and "the culture" have immense impact on the employment relationship. I do not share Howell's confidence, however, that I can distinguish market and culture from law as autonomous institutional realms to which causal properties over human behavior that are "not-law" can be attributed. As far as I'm concerned, it's turtles all the way down.

*ROLL CREDITS*

As putting this debate on was my idea originally I should like to thank Mel, Eric, Chris and Howell for moving it along with their thoughtful and lengthy contributions. I'd also like to thank our moderator Seth Wigderson for facilitating it, and Helmut Gruber, ILWCH editor, for agreeing to allow David Brody's review to be used on H-Labor. Finally, I thank David Brody for agreeing first to debate my response to his review and then for the suggestion that we air our private conversation. If nothing else I hope we have helped to advertize some of the potential of the H- lists for timely critique and response, which after all is what we are all supposed to be interested in.

 Chris Tomlins                    Tel: (312) 988 6553                           
 American Bar Foundation          Fax: (312) 988 6579                           
 750 North Lake Shore Drive       E-m: CLT@nwu.edu                              

Return to Menu