Trade Unions in the New Society

Harold J. Laski

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000431094
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Labour & Industrial Relations
• Index: Politics & International Relations

First Published in 1950, Trade Unions in the New Society examines the changing significance of trade unionism and the place they occupy in the democratic world. Harold J. Laski contrasts their function in a capitalist or socialist society with what it became under Russian totalitarianism. This book explores the relation between trade unions and the public, trade unions and the law and trade unions and democracy to show the impact of developments such as mass production, social security and a planned economy on the position of the working man and considers the proper role of the government in disputes which may affect the basic public welfare. Most important of all, possibly, are Laski's observations on the desirability of labour activity in organised politics.

Trade Unions in the New Society will be of immense interest for scholars and researchers of politics, political economy, labour studies, and for all who are concerned with the future of democracy.

III. TRADE UNIONS AND THE LAW

1

I CANNOT here even attempt to touch upon the vast and innumerable issues that arise in the courts out of the relation between the trade unions and the community. I must limit myself to the discussion of one principle of the Common Law and examine it in a few only of its many aspects. That principle is the effort of the courts, ever since the seventeenth century, to promote freedom of trade, and thus to regard all limits upon freedom of contract with a growing malevolence. The Common Law has been one of the major historical instruments of the market economy, the ardent protector of the maximum possible competition; and its place in the development of the market economy has been so important that it is not a serious exaggeration to say that it has hardly less created the market economy than been the outcome of its triumph about the middle of the nineteenth century. We can trace, almost step by step, the conscious effort of the judges, especially after the Revolution of 1688, to adapt the Common Law to new commercial needs. It is of high importance to recognize that the statesmen who invited William and Mary to occupy the English throne, upon the convenient, if fictitious, assumption that James II had abdicated, drew their main suppdVt from the mercantile class; and that the members of this class not only urgently desired the removal of all restrictions upon freedom of trade, but were unceasingly, through their power in the House of Commons, working to secure it. We can see the courts at work adapting the law of contract to the demands of the merchants. The technique was superbly displayed by Lord Macclesfield (Chief Justice Parker) in 1733 in the classic case of Mitchel v. Reynolds.¹ This is, I think, the point at which it becomes decisively clear that the Common Law will be so interpreted that it opens out those channels of opportunity so essential to the market economy, and so fatal to the medieval idea that the test of valid law is justice.

Lord Macclesfield spoke in accents which the Supreme Court of the United States would have completely understood in the years following the Civil War. He did not doubt that there must be restraints upon freedom of trade. The real problem was to be assured that the restraints imposed were reasonable. What therefore matters is the criteria by which we test whether or not a restraint is a reasonable one. It must not be a restraint that prevents a man from earning his living. It should not be a restraint that works to the detriment of the community by preventing it from enjoying the capacity of one of its citizens. It should not disadvantage the apprentice by restraining him from setting up for himself once he has served his articles. Not least, no restraint should be admitted to protect those corporations which labor for exclusive advantages in trade and reduce them to as few hands as possible. And it is of the highest interest to note that in two famous cases, in 1894,² and in 1916,³ respectively, the courts in a very different economic atmosphere broadly restated Lord Macclesfield’s case for one trade with appropriate but small adaptations. To this must be added the significant fact that it was after the Revolution of 1688, also, that the law of employers’ liability was given its modern form by the courts, and especially by Chief Justice Holt. The growth of vicarious liability he made possible was obviously needed to facilitate the general, and especially the corporate, expansion in enterprise. In 1685 it was the law that the master was responsible for his servants’ torts only if he gave his servants special authority for acts that had tortious results.⁴ By 1691 Holt was arguing that “whoever employs another is answerable for him, and undertakes for his care to all that make use of him ”⁵ What is really fascinating about the doctrine of employers’ liability is that in an age of swift commercial growth Holt should at once have seen the necessity for imposing it on a Common Law which had seen no validity in it for five hundred years, and that he should have made it the basis of the doctrine of public policy.⁶ It is only less fascinating than the fact that the doctrine of vicarious liability should exclude a fellow-servant from its scope in England until 1880, nearly two hundred years; and that it should take yet another sixteen years before Parliament, not without considerable pain to the judges, should insist upon the acceptance of the principle of workmen’s compensation.

You will note that at a time when the economic system was moving from the idea of regulation to the idea of laissez faire, and moving there in an age of rapid commercial expansion, the judges—not least significantly, the great judges— were preparing to adapt the principles of the Common Law to what the changing economic system would require. There was to be free competition, the open market, whenever they seemed “reasonable,” whenever they were not contrary to “public policy.” The desirability of free competition reached its zenith in the English courts in the famous Mogul Steamship case in 1892.⁷ Here the doctrine of free competition resulted in two findings. The first was that a combination of capital may completely dominate an industry without becoming a conspiracy in restraint of trade; that it is perfectly proper either for persons or for corporations to join together to prevent a newcomer to an industry threatening their hold upon it; that there is no illegality in size, as there is no illegality in the merciless use of power. The second was that a corporation holding the immense position of the defendant corporation in the Mogul Steamship case may legally say to third parties, such as merchants who want to ship goods, that it will not take their goods to any area where the vessels go, unless the merchants agree not to deal with any other shipping line in that area but the defendant corporation. Free competition, in other words, was, as a matter of public policy, so desirable that when translated into the Common Law it gave a monopoly intended to suppress competition the privilege of legal protection, a privilege that included the right to impose the secondary boycott upon interests not concerned with the original dispute. Nor was this twofold doctrine called into question in England until, in 1948, Parliament gave the Board of Trade the power to set up a Monopolies Commission which would inquire into restrictive practices such as the Mogul case revealed. If the Commission finds such practices proved, the President of the Board of Trade may, subject to the consent of Parliament, take steps to prevent their operation. As the first cases were to be heard by the Commission only in March 1949, it is obviously too early to say what results its work is likely to have. There are people in politics, both on the Right and on the Left, who look to the new machinery with immense hope, confident that it will break up price- rings and the like. For myself, looking at the outcome of the Sherman Act, I am not yet disposed to believe that genuinely free competition will replace the natural evolution of the combination which always follows when competition is strong, until we have seen the new system in operation. Few things have been as wisely said as Adam Smith’s famous remark that ‘people of the same trade seldom meet together, even for merriment or decision, but the conversation ends in a conspiracy against the public, or a contrivance to raise prices.”⁸

It is impossible to survey this development without comparing the attitude of the courts to the workers and their combinations for natural protection—the trade unions. I cannot hope to trace here the difference in the adaptation of the doctrines of the Common Law to the employers on the one hand, and to the workers on the other. It is not merely that until the Trade Union Law Amendment Acts of 1874–75 a trade union was always liable to be caught in the meshes of conspiracy. It is not merely, either, that, while the Combination Acts of 1799-1800 had a profound influence upon the workers, no case is known in which any employers were indicted under its provisions, nor even paid any attention to them. Far more revealing is what happened when, after the decision in the Mogul case, the trade unions assumed that they also could promote the welfare of their members by similar methods to those of the shipowners, provided that their behavior was not tortious or criminal. Allen v. Flood⁹ in 1898 and Quinn v. Leathern ¹⁰ in 1901 both illustrate quite admirably how unwise it is for any trade union to assume that the law applies to them in the same way as it applies to their masters. It is, of course, true that in Allen v. Flood the trade union was successful in the House of Lords by six against three. But in his minority opinion Lord Halsbury, the Lord Chancellor, not only said that every man has the right to get work and keep at work without any interference from others; he inferred that right from what he called “that freedom from restraint, that liberty of action … found running through the principles of our law.” That is to say, that a trade union, in his view, could not interfere with freedom of contract by using its power to get jobs for its members, though a great shipping corporation was permitted to use its power to drive a competitor out of business. It is easy to understand why Lord Herschell, in the majority opinion, not only said that trade unionists, as long as they do not break the law, “are entitled to further their interests in the manner which seems to them best, and most likely to be effectual,” but remarked also, no doubt with the Mogul case in mind, that competition was not “regarded with special favor by the law,” nor, in his belief, “should be so regarded.” Allen v. Flood was, on the surface, a victory for the trade union; but it showed that the criteria of “reasonableness” and “public policy” might easily vary with the composition of the court of last instance which applied these criteria in any particular case.

Three years later, in Quinn v. Leathern, an Irish case where the trade union sought the right to make a wholesale butcher give its members preference in the employment of his workers, and used its power to win this right, just as the shipowners had done, by insisting that his largest customer should refrain from dealing with him unless he complied with the union’s demand, it found that, as far as trade unions were concerned, the secondary boycott was illegal. The House of Lords confirmed the decision of the Irish courts, and the propositions laid down by a very able judge, Lord Brampton, on the majority side, are of extraordinary interest. He relied upon two principles: a trade union was different from a business corporation in that it could not use its power “as legitimate trade competition”; and by applying the secondary boycott, just as in the Mogul case, it was engaged in an illegal conspiracy to cause damage to Leathern, since it was not seeking “to obtain or maintain fair hours of labour at fair wages, or to promote a good understanding between employers and employed, and workman and workman, or for the settlement of any disputes, for none had existence.” These two principles, Brampton thought, distinguished the use of a trade union’s power from the use of a business corporation’s power. Its effort to protect its members from unemployment was, somehow, different in kind from the effort of a combination of shipowners to protect their market against competition. Therefore a trade union which brought indirect pressure to bear upon one employer to influence another was guilty of conspiracy, while a shipping corporation which brought indirect pressure to bear on a rival was not guilty of conspiracy. Employers would use the most ruthless form of competition to crush a rival so long as they did this for self-advancement and in the pursuit of gain. But, in some mysterious way, parallel action by trade unions was illegal, even though the layman might think that the more strongly an industry was unionized, the higher would be likely to be the wages of its members— which, surely, is the pursuit of gain—while the better the conditions obtained by the union, the more likely would it be to attract workers to membership—which may surely be described, without unfairness, as self-advancement. And Brampton was stoutly supported by Lord Halsbury, Lord Chancellor still in 1901, when he said that if, on behalf of his union, Quinn could do what he had sought to do against Leathern, “it could hardly be said that our jurisprudence was that of a civilized community.”

You can see that these cases involved enormous issues. The House of Lords, in the Mogul case, said that the Common Law, aiming at the establishment of the fullest possible competition, could give its blessing to a corporation which left no stone unturned in its determined effort to establish a monopoly in its field. Here, indeed, is a court of law legislating on the grand scale in the area of social policy that most of us would naturally assign to elected members of a legislature rather than to a chance majority of appointed judges, some of whom we know to have been chosen as much on political as on legal grounds. The principle becomes still more striking when, after its period of indecision in Allen v. Flood, the House of Lords said flatly that trade unionism had no resemblance to business enterprise, in the usual sense of that term, when it tried to protect itself by means it was told were legal when practiced by employers. Any sensible trade-union member would be bound to look at this extraordinary result and conclude that if there is not one law for the rich and another for the poor—which cannot, of course, be the case since we all enjoy the equal protection of the laws—it is very difficult to understand how there can be one law for trade unions and a quite different, and far more advantageous, law for employers and their associations. He would be tempted to conclude that the decision to look at the two areas of action as though they bore no resemblance to one another ought to be a quite deliberate decision of a legislative assembly, and that those who arrive at this conclusion could reasonably be asked to justify their view when they stood as candidates at the next general election. He might be so tempted; but he would have to resist the temptation since the only way to overturn the decision of the Law Lords in Great Britain is to persuade the government to reverse their view, or to amend it by Act of Parliament. That is more easily said than done. It took five years and the successful formation of a new party in the House pf Commons to reverse the notorious decision in the Taff Vale case; and it took almost twenty years to reverse the vindictive Trade Union Law Amendment of 1927, the authority for which was largely built on a remark of Mr. Justice Astbury, which was quite irrelevant to the granting of the injunction for which he was asked, and on the legal reputation of Sir John Simon, who told Parliament and the country what it is now safe to say was wholly inaccurate, that a general strike in pursuance of a trade dispute is both unconstitutional and illegal.

I have not one atom of doubt that the eminent judges who decided these cases arrived at their conclusions not only after full discussion among themselves, but with a really genuine desire to be detached from bias on either side. They have not, however, persuaded everyone to accept their outlook. Lord Citrine, now Chairman of the Nationalized Electricity Authority, but until 1945 the General Secretary of the Trades Union Congress—and no one will accuse Lord Citrine of a natural distrust of established institutions of Great Britain—said that “with the experience of the past … the trade-union movement has little faith in either the competence or the impartiality of the courts in matters affecting organized labor”;¹¹ and, were it necessary, I could cite great scholars, a former Attorney-General, and even Mr. Winston Churchill, in support of that view.¹² I am not even ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Copyright
• Dedication
• Table of Contents
• Preface
• I The Changing Significance of Trade Unionism
• II Trade Unions and the Public
• III Trade Unions and the Law
• IV Trade Unions and Democracy