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Proletarian issue 16 (February 2007)
Workers’ rights and bourgeois law
The establishment in statute of certain basic workers’ rights is generally a reflection of the progress of the class struggle waged by the proletariat. This is true even in the many cases where concessions made by the capitalists are so littered with caveats and loopholes that workers’ rights remain more shadow than substance. Despite all their shortcomings, such landmark achievements as the Ten Hour Day Bill and the 1906 Trades Disputes Act stand as real testimony to the persistence and vigour of class struggle.

Yet a glance at the history of this struggle also confirms that such legal victories can never be more than an indication of the strength of labour in its contest with capital, and never the mainstay of workers’ rights under capitalism.

Only the overthrow of the wages system itself and the establishment of socialism can guarantee the rights of workers. To pretend otherwise, to present this or that bourgeois law as the guarantee of workers’ rights, to claim that such laws do not simply reflect the relative strength of labour in its contention with capital but actually constitute the foundation and origin of that strength, is to conceal from workers the real history of their own class struggle, on the cynical pretence of celebrating it.

Those who tell us that it was the 1906 Act itself that guaranteed the advance of organised labour for three quarters of a century, and that we can stop the present retreat of organised labour by putting pressure on the imperialist Labour government to pass a pale imitation of what was won in the course of tooth and nail struggle a hundred years ago, are wilfully deceiving the workers.

The class struggle to determine the maximum length of the working day

The bourgeois offensive

In this regard, it is worth looking at the account that Karl Marx gave of the struggle waged over the course of fifty years and more to put legal limits on the working day in Britain. In the chapter on the Working Day, in Volume 1 of Das Capital, Marx notes that “during the greater part of the 18th century, up to the epoch of Modern Industry and machinism, capital in England had not succeeded in seizing for itself, by the payment of the weekly value of labour-power, the whole week of the labourer … The fact that they could live for a whole week on the wage of four days, did not appear to the labourers a sufficient reason that they should work the other two days for the capitalist.”

This state of affairs posed a challenge to the modern capitalist class that was then forcing its way to the top in British society. One anonymous enemy of the working class in 1770 spluttered:

“The labouring people should never think themselves independent of their superiors ... It is extremely dangerous to encourage mobs in a commercial state like ours, where, perhaps, seven parts out of eight of the whole, are people with little or no property. The cure will not be perfect, till our manufacturing poor are contented to labour six days for the same sum which they now earn in four days.”

The writer went on to demand that society should “shut up such labourers as become dependent on public support, in a word, paupers, in ‘an ideal workhouse’. Such ideal workhouse must be made a ‘House of Terror’, and not an asylum for the poor, ‘where they are to be plentifully fed, warmly and decently clothed, and where they do but little work’. In this ‘House of Terror’, this ‘ideal workhouse’, the poor shall work 14 hours in a day, allowing proper time for meals, in such manner that there shall remain 12 hours of neat-labour.” (Cited in Capital, Volume 1)

Yet by 1833, when the capitalists were told that, under certain circumstances, they might have to reduce the working day of children to 12 hours, such a caterwauling arose from the bourgeoisie that you would think that “the judgment day of English Industry had dawned”! As Marx put it:

“The ‘House of Terror’ for paupers of which the capitalistic soul of 1770 only dreamed, was realised a few years later in the shape of a gigantic ‘Workhouse’ for the industrial worker himself. It is called the Factory.”

It was the rapid development of modern machine industry that triggered this naked bourgeois class assault upon the proletariat, in “a violent encroachment like that of an avalanche in its intensity and extent. All bounds of morals and nature, age and sex, day and night, were broken down”.

Working class resistance

But if it was capital that landed the first blow, then labour soon rose to the challenge.

“As soon as the working class, stunned at first by the noise and turmoil of the new system of production, recovered, in some measure, its senses, its resistance began.”

Even at the beginning of the 19th century, fear of the social consequences of ignoring the protests of the working class against its barbaric treatment at the hands of the mill owners prompted the first legal concessions from the capitalist state. However, Marx explained, the initial concessions were “purely nominal” , despite all the parliamentary fanfare.

“Parliament passed five labour Laws between 1802 and 1833, but was shrewd enough not to vote a penny for their carrying out, for the requisite officials, etc.”

The Factory Act of 1833 established the ordinary factory working day as 15 hours, and limited to 12 hours the labour of young people between the ages of 13 and 18. But the manufacturers tried every trick in the book to bend the rules to their advantage.

“As the law of 1833 left it optional with the lords of capital during the 15 hours, from 5.30 a.m. to 8.30 p.m., to make every ‘young person’, and ‘every child’ begin, break off, resume, or end his 12 or 8 hours at any moment they liked, and also permitted them to assign to different persons, different times for meals, these gentlemen soon discovered a new ‘system of relays’, by which the labour-horses were not changed at fixed stations, but were constantly re-harnessed at changing stations … This system annulled the whole Factory Act, not only in the spirit, but in the letter. How could factory inspectors, with this complex bookkeeping in respect to each individual child or young person, enforce the legally determined work-time and the granting of the legal mealtimes? In a great many of the factories, the old brutalities soon blossomed out again unpunished.”

The only barrier to the law being trampled over completely by the insolence of capital was the relative disposition of the class forces in society. On one hand, the working class, inspired politically by the revolutionary Chartist movement, was showing its mettle on the industrial front. On the other hand, something else was working to the advantage of the proletariat: a split had developed within the exploiting classes. Those sections of the industrial capitalist class that sought to gain the upper hand over the landed interests (whose protected high corn prices kept wages high) looked to ‘free trade’ to remove the protectionist subsidy from the landed gentry and consolidate their own economic and social power. In their struggle, they gave temporary opportunist support to the workers’ demands for cheaper food.

Marx again: “However much the individual manufacturer might give the rein to his old lust for gain, the spokesmen and political leaders of the manufacturing class ordered a change of front and of speech towards the workpeople. They had entered upon the contest for the repeal of the Corn Laws, and needed the workers to help them to victory. They promised therefore, not only a double-sized loaf of bread, but the enactment of the Ten Hours’ Bill in the Free-trade millennium.”

This Act, reflecting growing working-class confidence and splits in the class enemy, declared war on the ‘relay’ scam and also brought women over 18 under the same protection as that afforded to 13 to 18 year-old children. (As a sop to capitalist greed, it also reduced the lower age limit for employment from 9 to 8.)

As Marx emphasised, these “minutiae, which, with military uniformity, regulate by stroke of the clock the times, limits, pauses of the work were not at all the products of Parliamentary fancy ... Their formulation, official recognition, and proclamation by the State, were the result of a long struggle of classes. One of their first consequences was that in practice the working-day of the adult males in factories became subject to the same limitations, since in most processes of production the co-operation of the children, young persons, and women is indispensable. On the whole, therefore, during the period from 1844 to 1847, the 12 hours’ working-day became general and uniform in all branches of industry under the Factory Act.”

As Marx says, this shift in the conditions of labour exploitation was the consequence of “a long struggle of classes” , not of “Parliamentary fancy”, significant though the “formulation, official recognition, and proclamation by the State” of that shift undoubtedly was. “The establishment of a normal working day is the result of centuries of struggle between the capitalist and the worker.”

The passage of the 1847 Factory Act, which ordered “a preliminary shortening of the working-day for ‘young persons’ (from 13 to 18), and all females to 11 hours”, to be followed in 1848 by “a definite limitation of the working-day to 10 hours” , was again made possible by a combination of proletarian struggle and splits in the ruling class.

The bourgeoisie rides roughshod over protective legislation

That it was class struggle, and class struggle not in the economic arena alone but most crucially in the political sphere, that determined the course of events, and not at all the vagaries of “Parliamentary fancy”, is further demonstrated from the negative side by what happened when the Chartist movement came to grief and reaction flourished on both sides of the Channel.

“The Ten Hours’ Act came into force May 1st, 1848. But meanwhile the fiasco of the Chartist party, whose leaders were imprisoned, and whose organisation was dismembered, had shaken the confidence of the English working-class in its own strength. Soon after this the June insurrection in Paris and its bloody suppression united, in England as on the Continent, all fractions of the ruling classes, landlords and capitalists, stock-exchange wolves and shop-keepers, Protectionists and Freetraders, government and opposition, priests and freethinkers, young whores and old nuns, under the common cry for the salvation of Property, Religion, the Family and Society. The working-class was everywhere proclaimed, placed under a ban, under a virtual law of suspects. The manufacturers had no need any longer to restrain themselves. They broke out in open revolt not only against the Ten Hours’ Act, but against the whole of the legislation that since 1833 had aimed at restricting in some measure the ‘free’ exploitation of labour-power. It was a pro-slavery rebellion in miniature, carried on for over two years with a cynical recklessness, a terrorist energy all the cheaper because the rebel capitalist risked nothing except the skin of his ‘hands’.”

It was this political retreat forced upon the working class in Britain and across Europe, temporarily healing the splits within the camp of the exploiters and giving reaction the green light, that emboldened the manufacturers to trample on those very laws that the capitalist state had just put in place.

After preliminary skirmishes in which the factory owners exploited every possible loophole to make a farce out of the labour laws, capitalism broke out in open revolt against the legal protection of women and children by bringing back the infamous relay system under cover of which children and young people could be sweated with impunity. They told the factory inspectors that, whilst they could put up with the restrictions on this arrangement under the 12-hour day, the new 10-hour day made such legal restraints a “grievous hardship”.

“They informed the inspectors in the coolest manner that they should place themselves above the letter of the law, and re-introduce the old system on their own account. They were acting in the interests of the ill-advised operatives themselves, ‘in order to be able to pay them higher wages’.”

Using an argument by which today’s capitalists continue to browbeat workers into ‘tightening their belts’ in the ‘national interest‘, in order to preserve British industry from overseas competition, the factory owners maintained that “‘This was the only possible plan by which to maintain, under the Ten Hours’ Act, the industrial supremacy of Great Britain.’ ‘Perhaps it may be a little difficult to detect irregularities under the relay system; but what of that? Is the great manufacturing interest of this country to be treated as a secondary matter in order to save some little trouble to Inspectors and Sub-Inspectors of Factories?’”

Complicity of the legal system

Nor did the bourgeois ‘justice‘ system, then as now dedicated to the protection of capitalist private property, offer any defence against this naked class war assault on workers and their children. When the factory inspectors appealed to the law courts, they were rapped on the knuckles by the Home Secretary, who told them not “to lay informations against mill-owners for a breach of the letter of the Act, or for employment of young persons by relays in cases in which there is no reason to believe that such young persons have been actually employed for a longer period than that sanctioned by law”.

In Scotland, the inspectorate caved in at once, allowing “the so-called relay system during the 15 hours of the factory day throughout Scotland, where it soon flourished again as of old”.

In England, the factory inspectors showed more pluck, rejecting the Home Secretary’s dictation and challenging the relay system in the courts. But, asked Marx: “what was the good of summoning the capitalists when the Courts, in this case the country magistrates — Cobbett’s ‘Great Unpaid’ — acquitted them? In these tribunals, the masters sat in judgment on themselves. An example. One Eskrigge, cotton-spinner, of the firm of Kershaw, Leese, & Co., had laid before the Factory Inspector of his district the scheme of a relay system intended for his mill. Receiving a refusal, he at first kept quiet. A few months later, an individual named Robinson, also a cotton-spinner, and if not his Man Friday, at all events related to Eskrigge, appeared before the borough magistrates of Stockport on a charge of introducing the identical plan of relays invented by Eskrigge. Four Justices sat, among them three cottonspinners, at their head this same inevitable Eskrigge. Eskrigge acquitted Robinson, and now was of opinion that what was right for Robinson was fair for Eskrigge. Supported by his own legal decision, he introduced the system at once into his own factory. Of course, the composition of this tribunal was in itself a violation of the law …”

An honest factory inspector, Leonard Horner, laid bare the reality of class justice in these terms:

“Having endeavoured to enforce the Act ... by ten prosecutions in seven magisterial divisions, and having been supported by the magistrates in one case only ... I considered it useless to prosecute more for this evasion of the law. That part of the Act of 1848 which was framed for securing uniformity in the hours of work ... is thus no longer in force in my district (Lancashire). Neither have the sub-inspectors or myself any means of satisfying ourselves, when we inspect a mill working by shifts, that the young persons and women are not working more than 10 hours a-day ... In a return of the 30th April ... of millowners working by shifts, the number amounts to 114, and has been for some time rapidly increasing. In general, the time of working the mill is extended to 13½ hours’ from 6 a.m. to 7½ p.m, .... in some instances it amounts to 15 hours, from 5½ a.m. to 8½ p.m.” (Cited in Capital, Volume 1)

In what looked like a definitive victory for the factory owners, the very elevated Court of Exchequer ruled in February 1850 that “the manufacturers were certainly acting against the sense of the Act of 1844, but that this Act itself contained certain words that rendered it meaningless. ‘By this decision, the Ten Hours’ Act was abolished.’ A crowd of masters, who until then had been afraid of using the relay system for young persons and women, now took it up heart and soul.”

The working class fights back

However, true as it is that bourgeois law cannot be relied upon to defend the proletariat against the brigandage of the capitalists, the capitalists were in turn to discover that all the bent judges in the world cannot hold back the wrath of that same proletariat once aroused to class struggle. Marx notes that, “after this apparently decisive victory of capital, followed at once a revulsion. The workpeople had hitherto offered a passive, although inflexible and unremitting resistance. They now protested in Lancashire and Yorkshire in threatening meetings. The pretended Ten Hours’ Act was thus simple humbug, parliamentary cheating, had never existed! The Factory Inspectors urgently warned the Government that the antagonism of classes had arrived at an incredible tension.”

So alarmed was the ruling class that, six months after the Court of the Exchequer tried to bury the Ten Hours Act, “a compromise between masters and men was effected that received the seal of Parliament in the additional Factory Act of August 5th, 1850 … an end was put to the relay system once and for all ... with a few exceptions the Factory Act of 1850 regulated the working-day of all workers in the branches of industry that come under it. Since the passing of the first Factory Act half a century had elapsed …”

Needless to say, once the capitalists had come to appreciate the economic and political advantages of the regulated, sustainable exploitation of the working class (rather than wantonly destroying the health and vigour of workers and courting social revolt), they hastened to claim this ‘enlightened’ new approach as a piece of longstanding bourgeois wisdom. Marx notes that the “wonderful development from 1853 to 1860” of the “great branches of industry which form the most characteristic creation of the modern mode of production … hand-in-hand with the physical and moral regeneration of the factory workers, struck the most purblind. The masters from whom the legal limitation and regulation had been wrung step by step after a civil war of half a century, themselves referred ostentatiously to the contrast with the branches of exploitation still ‘free’. The Pharisees of ‘Political Economy’ now proclaimed the discernment of the necessity of a legally fixed working-day as a characteristic new discovery of their ‘science’.”

Summing up, Marx remarked that “after the factory magnates had resigned themselves and become reconciled to the inevitable, the power of resistance of capital gradually weakened, whilst at the same time the power of attack of the working-class grew”.

Again and again in his detailed account of the struggle for the 10-hour day, Marx showed how it is the growing strength of the working class, and not the ‘Parliamentary fancy’ of the law-makers, that drives social progress. He showed too what scant regard capitalism has for the law when that law threatens its boundless greed for profits.

Workers should show no less contempt for the union-bashing laws by which bourgeois law seeks to disunite the proletariat. Rebellion against the law is, after all, a precedent set by their masters.
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