CHAPTER EIGHT
We have pursued a detailed series of investigations of law, labor, and England’s great transformation from both top-down and bottom-up perspectives. Most broadly, these analyses are motivated by the big question posed by Tilly on how we can increase our understanding of how large-scale structures and processes transformed both nineteenth-century societies and those of our own times. In Durable Inequality Tilly (1998) noted that one of the fundamental mechanisms through which such transformations occur is exploitation. In The Remaking of the British Working Class 1840–1940 Savage and Miles argue that “for purposes of class analysis, focus should be directed to those exploitative social structures which define the antagonistic relations lying at the heart of the conflict” (1994, 18). True enough, but that small phrase “exploitative social structures” is heavy gravity produced by a complex of forces.
Through the studies in previous chapters I have made an argument for combining historical materialism and historical institutionalism to work through the many lattices of these durable exploitative social structures. In the three case studies we saw how an institutional analysis of these structures illuminated conjunctures of the labor market, the labor process, local politics and law, and the national statutory and common law combining into durable paths for exploitation. In the last chapter we also investigated how working-class mobilization against these institutions transformed some of the legal bindings of exploitation. My purpose in all of the analyses has been to consider how interweaving these perspectives provides us with new understandings of exploitation in the local mid-Victorian world of work and legal order. Let’s not create another too-much-thumbed manual, but a study that offers some revised ways of thinking about large-scale structures and processes, and more particularly mechanisms of exploitation. I hope that none of my suggestions will be taken as formulaic. What I have intended to offer is not a scheme in which the social relations in and of production + legal institutions + gender structures + class politics = durable structures of exploitation. My purpose has been much more modest and limited.
To conclude this extended analysis I return first to the specific questions that motivated this study. Then I briefly address the question of class formation that was not the object of this work. Finally, I turn to some of larger theoretical issues that we have addressed on law, class and institutional analysis.
In what ways did the specifics of the production processes in their industries set the conditions by which the law became a strategy of choice? In each of the industries we have examined, the social relations in and of production posed both challenges and limitations for workplace organization and control. Both pottery and needle manufacturing had been organized through very refined divisions of labor, which in many respects gave the manufacturer greater control over the production process as a whole. Yet this division of labor, as Marx argued, did not readily lead to specific dominion in the workplace. Manufacturers lacked the capacity to inject further discipline into the labor process. The spatial organization of production (even within the factory), the accretion of labor processes into which production had been divided, the retention of what in shorthand terms was claimed as skill (by adult male workers), and the technical limitations of tethering production to powered task masters were all impediments to exerting more control. Pottery throwers and needle pointers maintained some leverage at the frontiers of control. Moreover, to the extent that adult male workers required subordinates to assist them, these manufacturers ceded their patriarchal authority in the workplace as a price of production.
The small producers in farming and fish trawling faced a different set of challenges. Their control was more immediate and personal, but they needed to exert it over labor that was not so neatly parsed. They required farm servants to drive animal teams and mend hedge rows, fourth and fifth hands to do varied tasks on deck. Both lacked the capacity to divide the production process beyond rudimentary lines. Farmers and fishing trawlers needed a means of both directing labor to specific tasks and insuring their effective completion. In Marx’s terms all of the employers we have studied faced problems of formal subordination. However, this categorization is an incomplete explanation for why all turned to the law because, as we noted, capitalists responded to these concerns through an array of strategies in labor control regimes. Pursuing this question requires that we go beyond the labor process and even beyond the politics of production as addressed by Burawoy.
Going beyond means in part adding location. Space and place contoured the labor control regimes we have analyzed. Region mattered for the industries we have examined in a few respects. Skill and knowledge requirements tied pottery and needle manufacturers to local labor markets, and labor recruitment and reproduction through patriarchal household and kin networks fortified this dependence. Redditch-area farmers also drew from a circumscribed market, hiring from what may well have been a shrinking regional labor pool. Hull trawler owners increasingly confronted an inverse dilemma. Because local labor markets proved inadequate they became more reliant on poor law union apprentices from more distant places. In all cases the geography of the labor supply imposed constraints on employers both in terms of hiring and workplace control.
Place mattered as well in terms of political and legal power. For the sphere of production and the lives of working people state power resided most directly in the institutions of local governance. In the towns we have studied, blocs of capitalists, merchants, and professionals (and, in the case of Redditch, landowners as well) controlled borough politics and through it the inferior courts. Borough and/or stipendiary magistrates provided both large and small employers with a ready and dependable institution to exert and affirm workplace authority. Solidification and expansion of the administrative capacities and authority of the “police courts” over successive decades added surety and ease to prosecution. Workers still found a measure of justice in their civil claims, but the balance of court actions tipped decidedly toward their criminal prosecution. Local courts were a redoubtable presence for working people, whether they were of long standing as in Hanley and Hull, or recent creation as in Redditch.
The dilemmas of the production process mattered, and place too, but of course these factors were tied to one another through the law. By the mid-Victorian era the accumulation of statutory and case law on master and servant clearly defined a hierarchical relation of continual service. The labor contract connected the labor market and the workplace and tied worker to employer in a number of asymmetric relations. The contract of exclusive service in each of our cases was realized through specific control strategies. Most fundamentally the law expected practices of obligation, and defined potential penal consequences for their transgression. At times obligation was impressed, as Price contends, by controlling custom. In quite different ways pottery manufacturers and farmers metered the intensity and variability of work through their claims of long-standing expectations. Trawler owners defined what was expected of “good lads” in their service. Hull magistrates sometimes reproached them for the severity by which they imposed these standards, and occasionally fined them for their brutal discipline. But as hundreds of apprentices learned, employers’ expectations of obligations were generally currency in court.
For a number of workers in these industries workplace resistance was often played out in the shadow of the law. On the individual level, disputes over responsibilities, productivity, pay, and other issues could turn into criminal disobedience. On the collective level, work stoppages and strikes could be pursued without the potential for prosecution only in narrow legal corridors given obligations defined in a contract of service. Employers in all of these industries found in longer-term (often yearly) agreements of exclusive service the opportunity to exercise authority in the workplace when their options were otherwise limited. Forms of annual bonding, for example, in pottery and farming advantaged employers not only in the labor market but also the workplace. Apprenticeships allowed trawler owners to dominate fisherlads. In each case the bundle of practices locally institutionalized as master and servant law significantly shaped the labor process and the politics of production.
Why did pottery manufacturers, fishing trawler owners and other employers discussed adopt strategies of labor control that significantly depended on the law? We already have stated some answers above, but another piece of the explanation concerns timing: why depended partially on when. In each of our cases employers faced problems of labor control and the confluence of circumstances led to a legal turn. In Hanley in the later 1830s pottery manufacturers sought a way of securing their victory over defeated unionists, and found a beneficial course in the appointment of the stipendiary magistrate. Redditch-area needle manufacturers during a period of significant expansion and landowners facing tighter labor markets likewise pressed for and then drew on the local bench in the early 1860s. During a robust expansion of their trade Hull trawler owners solved a chronic labor shortage with cheap and available apprentice labor and a sympathetic magistracy to discipline it. The legal turn in all of these cases was a pragmatic response, an exercise in Haydu’s terms of creating problem-solving regimes. When employers confronted their problems, the path to a solution through the law was more apparent and possible than alternatives. Our answer relies on a soft version of path dependency. We cannot show specific critical event conjunctures in a delimited causal ordering. But in each case we demonstrated how a confluence of circumstances led employers to incorporate master and servant prosecutions into their labor control regimes.
How did recourse to the law for workplace control become embedded in the routine governance and organization of the production process? Here our answer involves following the paths, some of which were admittedly longer and more amply documented than others. What we can say is that in all cases employers found responsive local legal institutions (in two cases partly of their own creation). Rates of successful prosecution were high, and expense (in terms of both time and money) modest. But the legal turn involved more than calculations of assured economic return: it also reinforced class orders in the politics of production and beyond. Successful prosecutions affirmed employers’ standing as masters in larger systems of patriarchal or paternalistic despotism. Many fine legal strokes confirming authority and hierarchy combined over time into a composition reproducing class relations.
To what extent did these capitalists’ reliance on the law affect the ways in which they considered alternatives to the organization of the production and ultimately changes in the law itself? And to what degree and in what ways did these legal strategies of labor control affect the trajectory of these enterprises within their industries? Our answers to these questions are necessarily more cautious and circumscribed, since responding to them edges us into the territory of counterfactuals. As we noted at the outset, social scientists and historians maintain that the course of technological innovation in a number of industries was shaped (and compared to other countries dampened) by the labor supply, systems of craft control, patriarchal subcontracting, and gendered divisions of labor. We can make plausible arguments that in several of these industries the legal turn was part of a buffer to technological and organizational innovation. The case is firmest for the pottery industry, which was ensconced in a labor control regime involving master and servant law from at least the later 1830s. Four and five decades on, Potteries district manufacturers were adding steam-powered machinery that had been introduced early in other smaller areas of production in England and in Scotland. They slowly adapted the production process within the well-worn path of their labor control regime as their once-vaunted supremacy in Britain and Europe waned. We can make a similar though less confident case for the Redditch needle industry in comparison to its US counterpart. In the trawling industry we witnessed a different course, one in which a well-trodden path between the ship and the bench was abandoned. With the rewriting of master and servant and merchant shipping laws Hull trawler owners relinquished their reliance on apprentice labor, no longer having the capacity to coerce fisherlads to remain in their service or set out to sea.
In answering the above questions through the case studies we highlighted the importance of the labor contract in labor control regimes. From the bottom up we examined how these contracts bridged labor markets and workplaces. Through them capitalists combined and institutionalized asymmetries of power that gave them leverage over their labor forces. The law became part of a bundle of established practices in the routine class and gender micropolitics of production. It also was often salient in waging of contests of subjugation and autonomy at what Price terms the “frontiers of control.” The particular construction of the labor contract under master and servant law made claims to authority portable: what employers could not effect at the point of production they could insist upon in court. Capital and labor were keenly aware of these institutionalized advantages when on the national level they squared off in a protracted struggle beginning in the mid-1860s over the legal structure of employment.
Through both bottom-up and top-down analyses we demonstrated that Burawoy’s political apparatuses of production encompass larger institutional orders than he theorizes. In our case studies production and state politics were always entwined in a circuit of control that passed back and forth, through factory and workshop gates, from workplace to court bench. Through our analyses we have provided more systematic mappings of how the law was implicated in the “chains of connection” that Price maintains configured the systems of authority at the heart of nineteenth-century labor control. We have extended his perspective on the frontiers of control by demonstrating how institutionalized recourse to the law, given specific configurations of constraints and opportunities capitalists faced, contoured the boundaries of these frontiers. Employers pursued legal action to define “custom” and the structure of autonomy and obligation in the workplace, and these became central features of their labor control regimes.
These labor control regimes were predicated on varied forms of patriarchal authority in the workplace, some of which were also tied to a broader paternalistic despotism exercised by manufacturers. In different ways in pottery and needle manufacture and trawling, adult males, either as workers or supervisors, exercised authority over women and children, many of whom were legally precluded from exercising independent judgment. Both the case studies and the reconsideration of Polanyi’s narrative reveal that at issue in many contests of authority were claims of adult male workers’ masculine independence. In the national struggle for labor law reform this involved a complex gender politics. Adult male workers, either recently enfranchised or still seeking full inclusion in the polity, risked compromising their claims of civic independence by pursuing state protection. In both the state and production politics of the time masculine independence dovetailed in the unions’ campaign to curb the power of the courts in relations between capital and labor. Combined with a popular political economy through which male workers claimed rights over their “property,” collective assertions for masculine autonomy led union activists to a new liberal legal order keeping the courts (and the state more generally) at greater distance in their relations with capital.
Gender may have been at work as well in the court, but as noted the data pose problems for making such a case. As we saw, over 90 percent of all prosecutions involved males. Arguably, governing understandings of gender difference mattered most in determining what behaviors were recognized or engaged in as transgressions and who was prosecuted for them. Adult male workers might well have been more defiant in the face of authority and their employers could also have interpreted their actions as troublesome assertions of masculine independence. However, once before the bench the charges against workers and the resulting sentencing rarely were cast in specifically gendered terms. The reasons for this absence are unclear. Hegemonic gender expectations might have been so implicit that all parties did not raise them. In the prosecution of the potter George Tittensor for his absence and drunkenness, conceivably no one needed to acknowledge that he had fallen short of a workingman’s respectability. It is also possible, though, that within the specific context of the court and the law the gendered dimensions of the employers’ claims and workers’ defenses could be subsumed through the particular discourse of the law. As we heard from the magistrates in the case studies they determined the “facts” and “followed the law.” Hull magistrates were not unsympathetic to Charles Taylor’s claims so that he could be a good husband and father; but even as they deemed his sentiments worthy they found that they had no bearing on the issue at hand. Finally, it is also plausible that what was paramount for some employers was restoring authority and securing reliable labor. Needle manufacturers did not distinguish between male and female stampers whom they saw as failing in their obligations. What motivated their prosecutions was deficient productivity.
Beyond these particular questions larger concerns have motivated this study. One was to better understand law’s materiality in productive relations. Several decades ago E. P. Thompson reflected that “‘law’ was deeply imbricated within the very basis of productive relations, which would have been inoperable without this law.” The law, he concluded, was a terrain of struggle over “actual practice” (1975, 261). Our study affirms his insight. Workers and employers certainly engaged in ideological struggle through the law, as we witnessed in the fierce campaign for legal reform. The law provided a basic conceptual map of labor relations. But the law was also always “functions in the world,” as Duncan Kennedy (1985, 998) maintains, as well as hanging above it in the realm of ideology. Labor process theory does not lead us to envision capitalists leading with the law as the tip of the spear in struggles in and about work. Yet the case studies demonstrate that law was in some situations a weapon of choice. It was, however, not generally a blunt instrument of coercion, though at times it was used as such when applied to the fisherlads. Law was the transfer of control over labor as “property” and the class and gender practices of domination and consent involved in these relations. It involved the ordering of the workplace and the measuring and enforcement of productivity. Law was part and parcel of the hierarchical structuring of authority and deference, and was the means by which the latter was enforced when not readily given. It is also important to remember that while the number of workers’ civil claims (usually concerning wages) was generally much smaller than that of criminal prosecutions, they did win about two-thirds of their suits. And when adult male workers won reforms in 1875 they substantively changed realities in the spheres of exchange and production. They affirmed claims of “independence,” but they also restructured the social relations through which they pursued it. In all of these ways law was a piece of a “regulated set of social forms of life” through which capitalist relations of production unfolded. It was also “a continuously contested terrain of relational power,” even if on the whole one side often held clear advantages (McCann 1994, 283).
A second broad concern was to pursue a working alliance between historical institutionalism and historical materialism through their perspectives on durable asymmetric systems of power. Both our analyses of the national development and transformation of the law and its use in the micropolitics of production demonstrate how the former offers key conceptual tools for the latter. We have explored how capitalists and workers made pragmatic choices within institutional constraints, the ways in which these decisions were shaped by when they were taken, and the enduring results embedded in institutional repertoires. The conceptual tools of historical conjunctures, path development, and embeddedness enhance class analysis, sharpening our ability to pursue the dynamics of subjugation, resistance, and accommodation in the workplace. Focusing on institutional dynamics also furthers intersectional analyses of structural inequalities. In our bottom-up and top-down investigations we illuminated how structures of class and gender combined in the development, use, and transformation of master and servant law. Gendered practices and expectations of in/dependence intertwined with the balance of class authority in the workplace and enacted through the law.1
The benefits are mutual. In our examinations of the development and transformation of master and servant law, particularly in the revision of Polanyi’s narrative, class analysis offered critical insights. Underscoring how legal institutions were crucibles of class power, cleavage, and conflict deepened our analyses of path development and rupture. From master and servant law’s origins as a solution to specific trade strife in the eighteenth century, capitalists in an expanding array of industries turned to Parliament for assistance with their labor problems. Capitalist interests cut an increasingly deep and broad trough through which master and servant law was generalized. Class politics, writ large on the national stage of Westminster and small in borough politics, were central in producing the institutional structures through which master and servant law became a durable and reliable practice in labor control regimes. And after at least a half century of this institutional order class politics produced its undoing. Our top-down and bottom-up analyses affirm that to understand the creation and transformation of durable structures of inequality requires the insights of both perspectives.
In the introduction to this study I struck a theme by inviting readers to go beyond with me. Through a complex investigation we have traveled a considerable distance, but in these closing pages let us go a bit further. Charles Tilly frequently argued that we have only the past as a guide to interrogate the present. The questions we have pursued concerning law, labor, and capitalist transformation are being played out in sites today around the globe, albeit in quite different contexts from Victorian England.
Ching Kwan Lee opens her insightful examination of labor protests in contemporary China with what she terms “haunting parallels” between Engel’s depiction of the Manchester mills and a Chinese migrant worker’s account of the grueling realities of a Shenzen factory. She finds “a uniquely Chinese path of contentious politics that pivots on a politics of the law” in analyzing the transformation of class and citizenship formation, the state restructuring of the economy and contradictions in these processes that animate labor unrest. Over the past two decades the central state’s increasing efforts to “rule by law” has made the law “a viable terrain of struggle” even with its lopsided asymmetries of power (2007, 237, 238).
Lee and many other scholars and activists have dissected how an authoritarian state has attempted to engineer capitalist development by transforming production based in a collective social contract to a “market-oriented, voluntaristic and individualistic ‘labour contract’” (Friedman and Lee 2010, 509). This process of labor commodification through law (which both Marx and Polanyi would recognize) has been protracted, contested, and replete with institutional contradictions. As the state both dismantled the “iron rice bowl” of state-owned enterprises (SOEs) and opened the doors to foreign capital from the late 1970s onward, it gradually promulgated policies that encouraged the new relationship of the labor contract. A key turn was made in the mid-1980s when regulations on new employment in SOEs introduced labor contracts (Lee 2007, 41; Ngok 2008, 47). The state’s decisive step was in 1994 with the passage of the Labor Law, which “codified the use of the labor contract system to manage the labor relationship” (Gallagher and Dong 2011, 40). Encompassing both SOEs and private enterprises, it was the first legal system to establish a unified labor regime. The 1994 law mandated labor contracts and social insurance, set standards for fixed and open-term contracts, created mechanisms for dispute resolution, established the principle of a minimum wage, defined a formal work week, and set limits on overtime. The Labor Law was part of a larger state objective to construct “rule by law” both reconstructing its legitimacy as a protector of the people and creating institutional mechanisms to channel and manage discontent.
Over the next decade institutionalization of the state’s project proved uneven and contradictory for many reasons. Lacking significant punishments for noncompliance, many firms simply ignored the law, with the compliance rate among non-SOEs being estimated in 2007 at only 20 percent. Firms opted for short-term fixed contracts to avoid long-term legal entanglements and many increasingly turned to “dispatch” services, subcontracting labor from employment agencies so that they could bypass legal responsibility. Monitoring systems were weak and labor arbitration committees and courts were incapable of handling the surge of claims made by workers. Workers found the dispute resolution process itself frustratingly slow and expensive.
Critically, from the perspective of this study, implementation of the law depended on an institutional system of what Lee terms “decentralized legal authoritarianism” (2007, 7). While the central state pursued legitimacy and stability through “rule by law,” it left implementation to local governments, creating contradictory forces. Faced with greater fiscal responsibilities, pressures to achieve economic expansion, and increasingly intense regional competition to attract investment, many local governments saw implementation of the law as an impediment to their economic and political security. Arbitrators were officials from the Labor Bureau, and thus subject to administrative pressures from the Communist Party and the local government. The All Chinese Federation of Trade Unions, the sole official collective agent for workers, also faced contradictory pressures to represent workers interests but also as an arm of the Party to maintain social stability. Compliance and enforcement evolved as an uneven patchwork both between SOEs and private enterprises and across different locales. Many workers who engaged in the dramatic increase in the filing of complaints in the dispute resolution system developed what Mary Gallagher (2006) terms a legal consciousness of “informed disenchantment.” As Lee (2007) demonstrates, the promise of empowerment coupled with the realities of execution led in different ways to heightened labor protest.2
The central state responded by instituting further rules in the Labor Contract Law that took effect in 2008. The process of consultation leading up to its passage was highly contentious. Lan and Pickles comment that “it was arguably the most politically debated law in the history of the Peoples Republic of China” and the number of public comments on the draft law substantially outstripped those on other high-profile legislation (2011, 3). Representatives of capital, particularly foreign capital such as the American Chamber of Commerce in Shanghai, engaged in robust lobbying to weaken some of the draft law’s provisions regarding employment security.3 Intense politicking by different factions within the state and divisions on the draft law between northern and southern interests also determined the law’s final content.
Despite the concessions incorporated during the drafting period, the Labor Contract Law contains provisions to enhance employment security and workers’ rights, especially for migrants who lead a precarious existence within the industrial order. Written contracts are required within a month of employment, and penalties are increased for violation. Probationary periods are delineated given the length of contract. There are greater restrictions on fixed-term contracts accompanied with a mandate for open-ended contracts after two fixed-term agreements. The law includes more restraints on labor subcontracting. Changes in work rules require employee consultation (though veto power by trade unions was removed after heavy objection from capital). The law also makes mass layoffs more difficult and enhances claims for severance pay.4
During the first year under the new law the number of recorded disputes doubled nationally and in some economic development zones increased by 300 percent. Chinese courts faced a surge of labor cases, which also almost doubled nationally the same year and saw even more dramatic increases in some export zones. To Gallagher and Dong, “the wave of filings initiated by workers against their employers can be seen as a type of bottom-up enforcement of the new law in direct response to the lackluster official measures to implement and enforce” the law (2011, 59).
Predictably, the Labor Contract Law has yielded mixed results. While limited data suggest that some workers were emboldened to pursue their rights, enforcement remains problematic because of the continuing problems posed by decentralization. Administrative units and lower courts are still subject to the pressure of local governments focused on growth and the legal process is too costly for many workers. There are indications that while the percentage of workers with written contracts has increased, it remains far short of general, especially for migrants. Many firms, more often private enterprises, insist that workers sign blank, covered, or English-language contracts subverting the intent of the law. There has been increased flight by foreign capital to such countries as Vietnam, where formal regulations are less onerous. Perhaps most germane to the issues of this study, “there is little reason to believe that the new law will adequately address the deep power asymmetry at the point of production.”5
Given that Lee sees parallels between nineteenth-century Manchester and twenty-first-century Shenzen, it is worth considering whether some of the questions that motivated this study provide insights for a very different time and place. Scholars and activists are now posing questions of how the institutionalization of labor relations through the labor contract shapes asymmetries of class power, involves both national and local state institutions in the contouring of workplace relations and constrains, and channels and stimulates class conflicts through contradictory dynamics. They are probing variations in the embeddedness of the law according to enterprise types, labor forces and markets, regions, and industries and the frictions between the micro- and macro-politics of institutionalization.
One prominent example is Steven C. McKay’s Satanic Mills or Silicon Islands? In a systematic comparative analysis of export zones McKay teases out how combinations of national and local regulatory regimes, the gendered division of the labor force, and transnational capital conjoin to produce the “political apparatuses of flexible production” (2006). He analyses how neoliberal policies produced more devolved regimes through localization of state capacities. McKay finds despotic, panoptic, peripheral human relations and collectively bargained regimes, and maps out their institutional configurations. Transnational employers use local regulatory institutions as part of their scheme to create social structures of exploitation. These vary from the privatized police forces in despotic regimes, to labor management councils, to zones laws that disperse workers’ housing, all laden with distinctive institutional configures to control labor markets and the labor process. And he reminds his readers at the end that “the national state is also complicit in its strategic nonenforcement of constitutional laws that explicitly promote full employment, equal opportunity, security of tenure, human workers conditions, and even a living wage” (2006, 218–19).
McKay urges us to reject the vision of the frictionless flow of global capital subordinating the mass of global workers in its wake. Instead, he illuminates for us a fractured landscape of labor control regimes forged in the changes needs of capital and the varying local capacities of advantage, hued by national neoliberal regulations. His is a complex picture, and a heuristic exercise for us now is to further consider the complexities we’ve unearthed in this study. Let’s not try to find doppelgangers of Hanley, Hull, and Redditch in twenty-first-century China or the Philippines. However, as with Lee’s reflections on Manchester, I ask readers to consider how they provide a basis to reflect on their possible comparisons with the contemporary world.
There is one more reason to consider the larger implications of our study, and it returns us to nineteenth-century England. The British empire imposed many exports on its subjugated populations, and one was its legal system. Through colonial legislation, versions of master and servant law were spread throughout the empire. As a relatively simple means of regulating labor markets and enforcing work performance it “was immensely adaptable, and much adapted” (Hay and Craven 2004, 56). Particularly after abolition, master and servant law became a key means not only of extracting labor power, but also of doing so by reinforcing distinctions of race, gender, and age. Hay and Carven argue that as “low law” it was insulated from disputes over other aspects of criminal law that were fodder for later high court scrutiny and popular democratic transformation. In investigating the contemporary great transformation of globalization we do well to keep sight of the imperial legacies of master and servant law.
While my previous work partly focused on historical processes of class formation, that question has not been my concern in this study. However, I think it is possible that the fusion of historical materialism and historical institutionalism offers a new angle for understanding the institutional dynamics of “class making.” In his reflections on the comparative-historical analysis of class formation Aristide Zolberg (1986) notes that that there is a recursive relationship between political organization and economic structures, but that it is difficult to disentangle state versus regime effects. In the analysis of the juridical in labor control regimes I have demonstrated how legal institutions shaped the course of exploitation in different industries and labor-control regimes. In a sense this was part of the larger process of the making of the English working class. Others might see further possibilities from these case studies for fuller comparative analyses.
Reflecting on the greater purposes of social sciences Charles Tilly addressed how analysis and ethics are intertwined: “Social science complements moral philosophy by ordering comparison of what actually exists with what could be and by asking which moral principles could be realized, and how, in the sort of world we know. Whether or not the aspiration to grand design drives them, social scientists who reliably identify past or present social life inevitably form propositions, however suppressed, about what could happen, about what can be, about what might happen next” (1997, 19).
In this study I trust I have reliably identified some relations between law, labor, and England’s great transformation. My analysis has not been motivated by a grand design. If I have partly succeeded in my more modest aims, I hope I provide others with propositions they can use to understand what could happen in other times and places, particularly with regard to exploitation. As important, I hope I have provided some conceptual tools that help others to understand how to confront asymmetries’ power and ask what it would mean to go beyond them.