1. Thompson, E.P., Customs in Common: Studies in Traditional Popular Culture (New York, 1991);Google ScholarDefoe, Daniel. The Great Law of Subordination Consider'd; or, the Insolence and Unsufferable Behavior of SERVANTS in England duly enquir'd into (London, 1724).Google Scholar

2. The chapter is a revision and expansion of Thompson's, well-known essay “Patrician Society, Plebeian Culture,” Journal of Social History 7 (1974).CrossRefGoogle Scholar

3. Thompson, Customs in Common, 16.

4. Ibid., 42; and see generally, 35–42.

5. Ibid., 37–38, 43.

6. Ibid., 38.

7. Thompson, E.P., Whigs and Hunters: The Origin of the Black Act (Harmondsworth, 1977), 260.Google Scholar Also see idem, Customs in Common, 34–35.

8. Thompson, Whigs and Hunters, 260, 262, 263.

9. Thompson, Customs in Common, 34–35; Whigs and Hunters, 263–67. For comments on Thompson's formulation, see, for example, Merritt, Adrian, “The Nature and Function of Law: A Criticism of E. P. Thompson's ‘Whigs and Hunters,’” British Journal of Law and Society 7 (Winter 1980): 194–214;CrossRefGoogle Scholar and Anderson, Perry, Arguments Within English Marxism (London, 1980), esp. 199–205.Google Scholar Merritt finds Thompson reliant on an idealist liberal metanarrative that spuriously invokes law, equity, and justice as universal essences existing autonomously of social relations. “Law can never be seen ‘simply as law’.…Blind formalism like that belongs only in the sterile environment of traditional law schools” (199). Thompson's invocation of the rule of law as “unqualified human good,” she argues, is little more than a “fetishism” of law that is in fact grossly atheoretical and disarming. More forgiving, Perry Anderson finds that Thompson's legalism is attributable to his politics, reflecting an increasingly libertarian conceptualization of “the rule of law” founded less on bourgeois conceptions of legality than on native English traditions of oppositional radicalism. Anderson nevertheless finds Thompson's legalism romantic and simplistic and, like Merritt, disabling. Thompson, he says, treats the rule of law as a “hypostatized construct” (200); and his rhetorical counterposition of “traditional freedoms” to “new statism”—best encapsulated in his advice to his countryment to inspect any and every claim on behalf of statist political strategies with extreme care “before you cut your hedges down” (a metaphor that brings irresistibly to mind the peculiarly English homology of privacy and privet)—extols only a negative liberty. “The fight for the preservation of civil liberties will only be truly successful if it is capable of advancing them beyond the threshold of the liberal opposition between State and individual, towards the point where the emergence of another kind of State—not just safeguards against the existing State—is their logical and practical terminus” (205). For briefer evaluations, see Horwitz, Morton J., “The Rule of Law: An Unqualified Human Good?,” Yale Law Journal 86 (01 1977): 561–66;CrossRefGoogle ScholarKlare, Karl, “Law-Making as Praxis,” Telos 40 (1979): 133–34;Google Scholar and Bess, Michael D., “E. P. Thompson: The Historian as Activist,” American Historical Review 98 (02 1993): 18–39.CrossRefGoogle Scholar

10. Much of the most recent writing on the history of American labor law reexamines this paradigm. See Orren, Karen, Belated Feudalism: Labor, the Law and Liberal Development in the United States (Cambridge, 1991);Google ScholarSteinfeld, Robert J., The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill, 1991);Google ScholarTomlins, Christopher, Law, Labor and Ideology in the Early American Republic (Cambridge, 1993).CrossRefGoogle Scholar

11. Booth, William James, Households: On the Moral Architecture of the Economy (Ithaca, 1993), 101.Google Scholar

12. Thompson, Customs in Common, 9; idem, Whigs and Hunters, 267.

13. Booth, Households, 98–100.

14. Thompson, Customs in Common, 500. Because of his insistence that “patriarchy” represents a particular form of social and political organization that is specific to a definite era (pre-eighteenth century), Thompson argues that it cannot be used as a general description or categorization of social practice. He comments that “feminist theorists, who allocate a central place to patriarchy, are rarely historians,” and criticizes their invocation of the “very specific” practices of patriarchy” to cover every situation and institution of male-domination” (499–500).

15. Ibid., 14–15.

16. The interplay between these large themes of social transformation and Defoe's anecdote also exemplify Thompson's methodology, which he describes as the ornamentation of “impressions” and “hunches” with “apt quotations,” Ibid., 24.

17. Ibid., 37, 38, and see generally 36–42.

18. Ibid., 40–42.

19. Ibid., 352–403. These pages of Customs in Common constitute a reprinting of Thompson's, famous essay, “Time, Work-Discipline and Industrial Capitalism,” Past and Present 38 (12 1967).CrossRefGoogle Scholar

20. This account is based on Great Law of Subordination Consider'd, 91–103.

21. Thompson, Customs in Common, 37. See also 43 (Edmund was “called before the magistrate to account for default”).

22. Defoe, Great Law of Subordination Consider'd, 92, 97 (emphasis in original).

23. Ibid., 92. “If the Laws of England are deficient in any thing, it is this, namely, that they do not empower the Justices to compel labouring People who undertake work, to finish it before they be Employ'd by any other.” Magistrates should be enabled to determine such matters “in a summary way,” obliging the worker to give bail to perform, “or send him to the House of Correction till he was humble enough to go about it.”

24. He said to the clothier, “he cou'd not make the Fellow work unless he would do it willingly.…but pray go and tell him I would speak with him.” Ibid., 92, emphasis in original. Thompson describes this as a summons.

25. Thompson describes Pratt's behavior as “the calculated obsequiousness” of one who wished “to struggle free from the immediate, daily, humiliations of dependency” but to whom “the larger outlines of power, station in life, political authority appear to be as inevitable and irreversible as the earth and the sky.” Customs in Common, 43. He concludes, “Cultural hegemony of this kind induces exactly such a state of mind in which the established structures of authority and modes of exploitation appear to be in the very course of nature” (43). Defoe, in contrast, writes that Pratt's knowledge of the law's deficiencies “made him not only saucy and peremptory to his Employer, but very pert, and almost impudent before the Justice,” to whom he spoke “in as merry a Manner as I could desire.” Great Law of Subordination Consider'd, 93, 96.

26. Without such powers, “it is evident, the Insolence of our labouring-Poor cannot be so effectually governed, as it were to be wished it might be; Edmund should else have been humbled, and have lain in Jail, till he had come and begg'd the Clothier to give him leave to finish the Piece of Work, without any Wages; or that the Wages should have been given to the Poor.” Defoe, Great Law of Subordination Consider'd, 103.

27. Ibid., 282–83.

28. See the 12 Geo. I, c. 34 (1725), “An act to prevent unlawful combinations of workmen imployed in the woollen manufactures, and for better payment of their wages,” at § II: If any person actually retained or employed as a woolcomber or weaver, or servant in the art or mystery of a woolcomber or weaver shall…depart from his service before the end of the time or term for which he is or shall be hired or retained, or shall quit or return his work before the same shall be finished, according to agreement, unless it be for some reasonable or sufficient cause…[he] shall be committed to the house of correction, there to be kept to hard labour for any time not exceeding three months.

29. The following are the most important: 7 Geo. stat. I, c. 13 (1720), “An act for regulating the journeymen taylors within the weekly bills of mortality”; 9 Geo. c. 27 (1722), “An act… for better regulating [journeymen shoemakers]”; 20 Geo. II, c. 19 (1747, amended 1758), “An act…for the Better Regulation of [Certain] Servants and of Certain Apprentices” (extending to “servants in husbandry…artificers, handicraftsmen, miners, colliers, keelmen, pitmen, glassmen, potters, and other labourers employed for any certain time, or in any other manner); 6 Geo. III, c. 25 (1766), “An Act for better regulating Apprentices and Persons working under Contract”; 17 Geo. III, c. 56 (1777), “An Act…for the more effectual preventing of Frauds and Abuses by Persons employed in the Manufacture of Hats, and in the Woollen, Linen, Fustian, Cotton, Iron, Leather, Fur, Hemp, Flex, Mohair, and Silk Manufactures.” The trend culminated in the act of 4 Geo. IV, c. 34 (1823), “An Act to enlarge the Powers of Justices in determining Complaints between Masters and Servants, and between Masters, Apprentices, Artificers and others.” For summaries and further details, see Linder, Marc, The Employment Relationship in Anglo-American Law: A Historical Perspective (Westport, Conn., 1989), 62–64;Google ScholarWhite, George, The Laws Respecting Masters and Work People (1824; reprint New York, 1979). In this light it is not altogether surprising that when Lord Mansfield and his King's Bench brethren came to consider the meaning of employment halfway through this hundred-year sequence of increasing statutory severity, they determined that employment and service had become legally indistinguishable. Whether working by the day or the piece, in one's own house or elsewhere, to be employed by another was, “quoad hoc,” to be the servant of a master, subject to all the statutory and common law disciplines that service entailed. Hart v. Aldridge, I Cowp. 55 (1774). See also Blake v. Lanyon, 6 T.R. 221 (1795).Google Scholar

30. Simon, Daphne, “Master and Servant,” in Democracy and the Labour Movement: Essays in Honour of Dona Torr, ed. Saville, John (London, 1954), 160–200.Google Scholar

31. Sewell, William H. Jr, “History in the Paranoic Mode?” International Labor and Working-Class History 39 (Spring, 1991): 21.CrossRefGoogle Scholar

32. Colonial-era legal abridgments had blithely ignored English statutes regulating labor, making but brief reference in passing to their irrelevance to the colonies' situation. Commentators like Benjamin Franklin insisted categorically that “the Statutes for Laboureres…are not in force in America. nor ever were.” In the early nineteenth century, John Bristed's America and her Resources could still be found denying the very existence of the relation of master and servant, while Timothy Walker, though embracing master/servant discourse enthusiastically, did so conscious of its “strangeness” to republican ears. By the 1870s, however, strangeness had long since been swamped in a headlong reception of English common law. See generally, Tomlins, Law, Labor and Ideology, 223–92. It is worth nothing that Franklin's statement was a retort to Josiah Tucker, dean of Gloucester, who was, like Defoe, one of the eighteenth century's foremost “propagandists of [labor] discipline.” Thompson, Customs in Common, 383.

33. Robertson v. Baldwin, 165 US 275 (1896), 281, 287–88. And see Orren, Belated Feudalism, 68–159; Tomlins, Law, Labor and Ideology, 223–92. See also VanderVelde, Lea, “The Gendered Origins of the Lumley Doctrine: Binding Men's Consciences and Women's Fidelity,” Yale Law Journal 101 (01 1992): 775–852.CrossRefGoogle Scholar

34. Atleson, James B., Values and Assumptions in American Labor Law (Amherst, 1983), 14.Google Scholar

35. Ibid., 15. and generally 1–16. See also Tomlins, Law, Labor and Ideology, 390.

36. Smith, A. Hassell, “Labourers in Late Sixteenth-Century England: A Case Study from North Norfolk [Part 1]”, Continuity and Change 4 (1989): 31.Google Scholar

37. Legal descriptions of these different statuses were composed of definitional specificities rather than generalities. Prior to Blackstone, at least, law books bespeak a concern with the creation of authoritative orderings of specificities, not with jurisprudential generalizations. Law's claims to discursive generality and university—Thompson's “equity” and “justice”—are historical and political specificities, not essences. See generally Goodrich, Peter. Languages of Law: From Logics of Memory to Nomadic Masks (London, 1990), 1–148.Google Scholar

38. I use the term “generic” advisedly, for what I am arguing for is precisely the creation of a general legal category in a place where previously there had existed a series of particulars.

39. I have explored some of these ambiguities in Law, Labor and Ideology.

40. To some extent this choice of law as “site” is both a response to and made feasible by the course of debates over structure and agency that have been ongoing in social history and social theory over the past fifteen years. Writing of these debates in their early days. Adrian Merritt characterized them as essentially an intra-Marxist historiographical struggle over the value of overt theorizing, as represented in the work of Althusser, Poulantzas, and others. “The debate is of particular importance to law,” she wrote then, “because a significant impetus to the study of the development of law and of law's operation within the social context is coming from the attempt to apply such a theoretical perspective. At the same time, some of the older and less overtly theoretical exponents of Marxist history are turning their attention to law as an element of social history. Thus the protagonists in the debate, though primarily historians, have in some measure chosen the law as their battleground.” Merritt, “Nature and Function of Law,” 194. The debate has moved on from that original Marxist locale, and the theorists have changed (Foucault, for example, has proven more appealing to social historians than Althusser, perhaps because Foucault so effectively blurs structure and agency), but the issues in debate remain crucial and law continues to be a highly strategic battlefield.

41. Tomlins, Christopher, “How Who Rides Whom. Recent ‘New’ Histories of North American Labor Law, and What They May Signify,” Social History 20 (01 1995).CrossRefGoogle Scholar

42. In this I follow the lead of, most recently, Boydston, Jeanne. See her Home and Work: Housework, Wages and the Ideology of Labor in the Early Republic (New York, 1990), particularly xi–xv.Google Scholar

43. Tomlins, Law, Labor and Ideology, 19–20. These sentences reflect the influence of Hirsch, Susan F.. See her “Subjects in Spite of Themselves: Legal Consciousness Among Working-Class New Englanders,” Law and Social Inquiry 17 (Fall 1992): 839–57.CrossRefGoogle Scholar Describing the impact of postmodern social theory on sociolegal studies, Hirsch writes that “in postmodern approaches, subjects are theorized as ‘effects’ of discourse, their bodies constituted and positioned by power/knowledge.…Ideologies of gender, race, class and ethnicity (among others) write themselves on bodies rather than arise from inner essences, leaving complex, multifaceted, and unstable subjects” (843). I discuss Hirsch's article further in note 64, below. My position in this essay represents a Cautious variation on postmodernism that seeks to retain a place in theory for intransitive social relations. Whether or not my cautious postmodernism is successful does not affect the point I wish to make here, namely that law is a peculiarly authoritative modality for the social inscription of ideologies. For recent discussion of the relationship of law to discourses of authority and subjection in both sociolegal studies and history, see, in addition to Hirsch, Hunt, Alan, “Foucault's Expulsion of Law: Toward a Retrieval,” Law and Social Inquiry 17 (Winter 1992):1–38, together with commentaries by Susan Silbey (39–48) and Jonathan Simon (49–56), and a reply by Hunt (57–62);CrossRefGoogle Scholar and Engelstein, Laura, “Combined Underdevelopment: Discipline and the Law in Imperial and Soviet Russia,” American Historical Review 98 (04 1993):338–53,CrossRefGoogle Scholar together with commentaries by Rudy Koshar (354–63) and Jan Goldstein (364–75), and a reply by Engelstein (376–81).

44. The goal here is to find a means to describe multiple forms of social relation that does not privilege one.

45. Grossberg, Michael, “Social History Update: ‘Fighting Faiths’ and the Challenges of Legal History,” Journal of Social History 25 (1991):196.CrossRefGoogle Scholar

46. For an analysis which leans in the first direction, see Tomlins, Law, Labor and Ideology. For insights into the second, see Goodrich, Languages of Law, 122–25, and, more generally, vii–viii, 1–11.

47. Sewell, “History in the Paranoic Mode,” 21.

48. Diggins, John P. and Kann, Mark E., “Authority in America: The Crisis of Legitimacy,” in The Problem of Authority in America, ed. Diggins, John P. and Kann, Mark E. (Philadelphia, 1981), 4.Google Scholar

49. See, for example, the contrasting perspectives on the relationship between state authority, liberty, and democracy offered by John P. Diggins, “The Three Faces of Authority in American History,” and Sheldon Wolin, “The Idea of the State in America,” both in ibid., 17–40 and 41–58.

50. This is a sweeping generalization and no doubt I should cite many schools of historical interpretation that are exceptions to it. I do not, because my purpose at this point is to attempt to characterize a historical/cultural tradition, not the interpretive practices of historians. However, I do believe that the generalization has some validity when one looks at the particulars of practice, too, in that American historiography seems to me largely a process of analysing and reacting to hegemonic liberalism.

51. The most recent prominent example of work in this scholarly tradition is Wood, Gordon, The Radicalism of the Amercian Revolution (New York, 1992).Google Scholar

52. Appleby, Joyce, Liberalism and Republicanism in the Historical Imagination, (Cambridge, 1992), 2.Google Scholar

53. This paradigm embodies a view of the world constructed from paired opposites: public and private, state and society, politics and daily life.

54. See, for example, Foucault, Michel, Power/Knowledge: Selected Interviews and Other Writings, 1972–1977 (New York, 1980), 93:Google Scholar “In a society such as ours, but basically in any society, there are manifold relations of power which permeate, characterize, and constitute the social body, and these relations of power cannot themselves be established, consolidated, nor implemented without the production, accumulation, circulation, and functioning of a discourse.” See also Goodrich, Peter, Legal Discourse (New York, 1987), 150–51.Google Scholar

55. Conceived in this way, authority will have many potential meanings, rather than a single stable meaning, and many potential expressions. rather than a single stable expression. To take one example. John P. Diggins attempts a “covering law” definition of authority as “rightful power, power justified by reason.” He continues, “How power comes to be accepted or rejected is the process by which it is legitimated or deauthorized, and this role is most frequently assumed by the intellectual, who speaks truth to power to see if power can answer with reason rather than with force.” Diggins, “Three Faces of Authority in American History,” 17. The problem is, however, how can one define authority as a consequence of power's answer to truth when the truth one speaks to power is itself constituted by discourse, a consequence of discursive authority?

56. On this see, variously, Foucault, Power/Knowledge–45; idem, “What is an Author?”, in Josue Harari, Textual Strategies: Perspectives in Post-Structuralist Criticism (Ithaca, 1979), 141–60; Grbich, Judith E., “The Body in Legal Theory,” in At the Boundaries of the Law: Feminism and Legal Theory, ed. Fineman, Martha A. and Thomadsen, Nancy S. (New York, 1991), 61–72.Google Scholar

57. Whether this is indeed so is a matter of the utmost importance, as recent exchanges in ILWCH have illustrated. While the substance of those exchanges has tended to be preoccupied with the absence of agreement between materialists and poststructuralists over what access can be gained to the construction of social relations, their occurrence confirms that exploration of the dynamics of race, gender, and class as fundamental social relations, both in themselves and in their interactions, and in their relations to discourse, is fundamental to the continued formation of labor history. See Scott, Joan, “On Language, Gender, and Working- Class History,” International Labor and Working-Class History 31 (Spring 1987): 1–13,Google Scholar together with responses by Bryan D. Palmer. 14–23; Christine Stansell, 24–29; and Anson Rabinbach, 30–36. Scott offers a “Reply to Criticism,” International Labor and Working-Class History 32 (Fall 1987):39–45.CrossRefGoogle Scholar

58. See, for example, Hall, Kermit, The Magic Mirror: Law in American History (New York, 1989), 6–7.Google Scholar

59. Friedman, Lawrence, The Republic of Choice: Law, Authority and Culture (Cambridge, Mass., 1990), 213.Google Scholar See also Marry, Sally Engle, Getting Justice and Getting Even: Legal Consciousness among Working-Class Americans (Chicago, 1990).Google Scholar

60. For a specific example of what might fall within this definition of legal culture, see Wallace, Anthony F.C., St. Clair: A Nineteenth Century Coal Town's Experience with a Disaster Prone Industry (New York, 1987), 314–438Google Scholar (on Irish “outrages,” the Molly Maguires, and the social order of the Pennsylvania anthracite region). See also Hartog, Hendrik, “Pigs and Positivism,” Wisconsin Law Review 1985 (4):899–935;Google Scholar Michel Foucault, “On Popular Justice: A Discussion with Maoists,” in Foucault, Power/Knowledge, 1–36. And see, generally, Starr, June and Collier, Jane F., “Introduction: Dialogues in Legal Anthropology,” in History and Power in the Study of Law: New Directions in Legal Anthropology, ed. Starr, June and Collier, Jane F. (Ithaca, 1989), 1–28;Google ScholarFitzpatrick, Peter, “Marxism and Legal Pluralism,”Australian Journal of Law and Society 1 (1983):45–59;Google Scholaridem, “Law and Societies,” Osgoode Hall Law Journal 22 (Spring 1984):115–38; and idem, “Law, Plurality and Underdevelopment,” in Legality, Ideology and the State, ed. David Sugarman (London, 1983), 159–82.

61. See Goodrich, Legal Discourse, 125–204.

62. Tomlins, Law, Labor and Ideology, 19–34.

63. On consistency in legal discourse, see Woodiwiss, Anthony, Rights v. Conspiracy: A Sociological Essay on the History of Labor Law in the United States (New York, 1990), 11.Google Scholar

64. Although there are similarities, I feel it necessary here to distinguish the approach I wish to follow from the conceptualization of law as a means to “ruling class” hegemony that has been popular in recent years. For a succinct statement, see Genovese, Eugene, Roll Jordan Roll: The World the Slaves Made (New York, 1975), 25–49.Google Scholar As Susan F. Hirsch has noted in her essay on Sally Merry's Getting Justice and Getting Even (“Subjects in Spite of Themselves,” 841, 842–43, 852), accounts of hegemony and of the “hegemonic dialectic” of domination and resistance make unwarranted assumptions about human subjectivity. They also, I think, fail to take account of the complexity of law's effects. Let us take these points in order. Hirsch credits Merry with developing a sophisticated view of law as hegemony, and quotes her formulation: Law, as an ideological weapon, has two edges: it is a source of domination and, at the same time, contains the possibilities of a challenge to that domination. It is not part of a hegemonic ideology in the simple sense of a set of beliefs which induce subordinate groups to go along. Instead it is an ideology which becomes part of a struggle over control—and it is the language in which this struggle takes place and in which relative power is contested. Thus law constructs power and provides a way to challenge that construction. (Merry, 8) Merry pursues the analysis of construction and challenge ethnographically, according to the activities and ideas of her working-class subjects. But she concentrates on class explanations of subjects' motivations. Yet as we have seen (above note 43), Hirsch argues that subjects' identities are “shifting and complex” rather than straightforward because the components of identity—gender, race, class, ethnicity, and so forth—are effects of discourse rather than essences of being. Hence, it is dubious whether subjects' consciousness (and therefore their motivation to accept or challenge) can be held consistently to express one or another dimension of identity. Instead subjects should be theorized “as shaped by cross-cutting social relations,” and their consciousness, “framed by converging relations of power,” seen “as revealing different articulations of power at particular contextualized moments.” By concentrating on class, Merry fails “to theorize legal consciousness as reflective of the complex subjectivity of working-class people” and treats uses of law that “reaffirm, negotiate, and transform social relations involving race, ethnicity, gender, and age” as reflective of class values and experiences rather than in terms of the range of social difference. For obvious reasons, this complex view of subjectivity enormously complicates the dialectic of hegemonic domination and resistance. And there are further problems. First, law is not empty. Hence its “way to challenge” can only produce results within the terms of its “way of creation” and within the range of what it has already effected. Second, law is in any case intimately involved in the effectuation (production, reproduction) of the very subjects that, in all their complexities, supposedly accommodate themseles to it, or resist it. It is the ink in which the ideologies that Hirsch describes (see note 43 above) are written, and the hand (author) that holds the pen. The hegemonic dialectic, I think, cannot cope with these problems.

65. In effect, these histories assume an “individual subject” who is by and large white, male, and to be found in particular kinds of locations where labor power is exchanged for money. This subject, en masse, is the dominant “identity” of labor in labor history. Other identities tend to be treated as secondary, and some (for example, slaves) have difficulty gaining recognition as part of “labor” at all. Finally, even where plural identities are recognized they tended to be treated as “simple” rather than complex phenomena, composed of constant and stable rather than shifting characteristics. Thus men tend to be treated as bearers of class identities, women as bearers of gendered identities, and blacks as bearers of race identities. I have tried to address the question of complex identity. although in a very preliminary way, in “In Nat Turner's Shadow: Reflections on the Norfolk Dry Dock Affair of 1830–1831,” Labor History 33 (Fall 1992).Google Scholar

66. Forbath, William E., Law and the Shaping of the American Labor Movement (Cambridge, Mass., 1991).Google Scholar

67. Hattam, Victoria C., Labor Visions and State Power: The Origins of Business Unionism in the United States, 1806–1896 (Princeton, 1993).CrossRefGoogle Scholar

68. By bringing new perspectives in critical and historical analysis to the forms of knowledge or practice that, in legal convention, have constituted the realm of “labor law”—conspiracy, strike activity, collective bargaining relationships, and so forth—recent developments in labor-law history have helped to alter radically our understandings of how and why these kinds of social relations get reflected in law, how their legal form is determined, and what has been the nature of the interaction between legal form and social practice. These, indeed, were the genre's initial concerns. See, for example, Klare, Karl, “Judicial Deradiealization of the Wagner Act and the Origins of Modern Legal Consciousness: 1937–1941,” Minnesota Law Review 62 (1978):265–339;Google Scholaridem, “Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law,” Industrial Relations Law Journal 4 (1981):450–82; Atleson, Values and Assumptions in American Labor Law; Tomlins, Christopher L., The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge, 1985).Google Scholar More recent work, including the books by Hattam and Forbath mentioned above, has continued to realize this potential of labor-law history to revise our understanding of the social and institutional phenomena which for a good part of the last century have been the stuff of orthodox labor history. By and large. however, labor-law history's exponents have not yet dramatically altered our conception of what phenomena are appropriate for examination (although see works cited in note 78 below). This, in my opinion, is the next step for the genre to essay.

69. Orren, Belated Feudalism, 11 (emphasis in original).

70. Orren centers her book on “labor” not as the labor movement but as the primary link between state, society, and economy. Labor is central because work and authority over the process of performing work are the basis for the organization of society and the institutions of government. Hence, legal regulation protective of the structures of authority constitutive of work is at the core of social and state organization. This argument for labor's “primacy” is derivative of classic liberal statements of eighteenth- and early nineteenth-century liberal political and economic theory, such as the labor theory of value. By exposing the institutional and doctrinal structures that positioned labor in liberal political economy, however. Orren's historical analysis effectively denaturalizes the meaning of labor in liberal theory. This is the first stage in opening labor up to different identities. Although it does not take us back over the threshold, it returns us to the doorway through which the liberal account exited those other identities.

71. Steinfeld shows himself well aware of the importance of investigating these flows, and his writing on both household and market as jurisdictions is very stimulating. Where I find his work less satisfying is in his inclination to go along with the traditional status-to-contract shift. The effect of this is a progressive “silencing” of the household as the “market” (notwithstanding its contradictions, ambiguities, and coercions) takes over, an interpretive schema that imposes a one-way modernizing logic of irreversibility on his account. Steinfeld does at least begin from a position that challenges traditional conceptions of “labor” as characteristically waged and free. See Invention of Free Labor, 3–9, 55–60, 147–56, 160–63, 185–87. On markets, see his “The Philadelphia Cordwainers’ Case of 1806; Alternative Legal Constructions of a Free Market in Labor,” in Labor Law in America: Historical and Critical Essays, ed. Tomlins, Christopher L. and King, Andre J. (Baltimore, 1992), particularly 20–24.Google Scholar

72. For examples of work attempting (from rather different perspectives) to bring employment and family law back together, see Glendon, Mary Ann, The New Family and the New Property (Toronto, 1981);Google Scholar and Stanley, Amy, “Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation,” Journal of American History 75 (09 1988): 471–500.CrossRefGoogle Scholar

73. Reeve, Tapping, The Law of Baron and Femme, of Parent and Child, Guardian and Ward, Master and Servant (New Haven, 1816), with The Powers of the Courts of Chancery and An Essay on the Terms Heir, Heirs, Heirs of the Body thrown in for good measure.Google Scholar

74. Kent, Chancellor James, Commentaries on American Law, 4 vols. (New York, 1826–1830).Google Scholar vol. II, Part 4, “Of the Law Concerning the Rights of Persons.”

75. The full title of Schouler's treatise (1st ed. published 1870) was A Treatise on the Law of the Domestic Relations: Embracing Husband and Wife, Parent and Child, Guardian and Ward, Infancy, and Master and Servant.

76. Thus the title of Browne's treatise (1st ed. published 1883) suggested a different slant than Schouler's: Elements of the Law of Domestic Relations and of Employer and Employed.

77. Labatt, C.B., Commentaries on the Law of Master and Servant, 8 vols. (New York, 1913), vol. I, 14.Google Scholar On the “jurisdictional war” among treatise writers in the half century following the Civil War oser the appropriate categorization of master and servant law, see Glendon, New Family, 147–48. It is worth noting that Timothy Walker had sought to separate the law of employment from the law of the household some sixty years earlier, though he seems to have been motivated by concern to underline that master/servant law was relevant to all forms of employment and not just to employment of domestic servants. “I have heretofore spoken of the relation of master and servant, as one of the domestic relations: but the view noss presented, shows that it belongs more properly to the business relations. It has in fact very little to do with domestics, or domestic life.” Walker, Timothy, Introduction to American Law (Philadelphia, 1837), 250.Google Scholar

78. On authority in employment. see Tomlins, Law, Labor and Ideology, 223–92; Orren, Belated Feudalism, 68–159. On authority in conjugal and parental relations, see Hartog, Dirk, “Mrs. Packard on Dependency,” Yale Journal of Law and the Humanities 1 (12 1988):79–103;Google ScholarClark, Elizabeth, “Matrimonial Bonds: Slavery, Contract, and the Law of Divorce in Nineteenth-Century America,” Legal History Program Working Papers (Madison), ser. 1, no. 10 (06 1987).Google Scholar For examples of work beginning to confront the commonalities in these relations, see Vander Velde, “The Gendered Origins of the Lumley Doctrine,” 775–852; and particularly Stanley, “Conjugal Bonds and Wage Labor.”

79. Hartog, “Mrs. Packard on Dependency,” 89.

80. Kent, Commentaries, II, 33.

81. Booth, Households, 1.

82. Ibid., 8: see generally, 1–93. On the relevance of the oikos to oeconomy—that is, the theory and practice of colonial American household order, see Boydston, Home and Work, 18–20.

83. Booth, Households, 88.

84. Ibid., 8. “The subordination of the laborer and the suppression, or containment, of the economy are thus intimately bound one to the other” (32). On the ubiquity of inside/outside distinctions in master/servant law—where the “inside” of the relation is both a rank-ordered hierarchy and an organic union to be protected from interferences from the “outside”—see Karen Orren, “Metaphysics and Reality in Late Nineteenth-Century Labor Adjudication,” in Tomlins and King, Labor Law in America, 160–79.

85. Booth, Households, 39–40.

86. Ibid., 27.

87. Ibid., 92.

88. The same is true, of course, of the managed division of labor of the modern world. The joining of authoritative hierarchy (management) to a distribution of functions is no more a requirement of modern technologies of production than of ancient. In both cases the arrangement is chosen. See Tomlins, Christopher, “‘Of The Old Time Entombed’: The Resurrection of the American Working Class and the Emerging Critique of American Industrial Relations,” Industrial Relations Law Journal 10 (1988):426–44.Google Scholar

89. Booth, Households, 25. The principle axis of gender difference in work is location. “Indoor work is the business of the household's females.… The work of men is outdoors” (24). This underlines a further, major dimension to the dialectic of inside and outside that is integral to households, domestic relations law, and the politics of social spheres.

90. That is, where male servants or slaves are engaged in indoor work they are within the sphere of the oikos mistress and subordinate to her authority (although even here there is likely to be a steward to act as overseer).

91. Booth implies that gender and economy offer distinct sites for analysis of the dynamics of the household (2-3). Indeed, the household must be approached as a place of gendered hierarchy no less than of economic hierarchy. Given, however, that Booth's analysis from the site of economy suggests that the oikos was organized to subsidize one sex, it seems to me to risk distortion not to pursue the relation of gender and economy in practice.

92. As expressed, for example, in a suffrage organized according to property and sex. See, generally, Boydston, Home and Work, 43–44.

93. On elite planter ideology and the displacement of toil, see generally, Isaac, Rhys, The Transformation of Virginia, 1740–1790 (Chapel Hill, 1982);Google Scholar and Morgan, Edmund, American Slavery, American Freedom: The Ordeal of Colonial Virginia (New York, 1975).Google Scholar On artisanal republicanism, see Wilentz, Sean, Chants Democratic: New York City and the Rise of the American Working-Class, 1788–1850 (New York, 1984);Google Scholar and Kerber, Linda K., “Working- Class Democracy in America: Sean Wilentz and the Jacksonian Worker,” International Labor and Working-Class History 31 (Spring 1987):69–76.CrossRefGoogle Scholar On the ideology of “sufficiency,” see generally, Vickers, Daniel, “Competency and Competition: Economic Culture in Early America,” William and Mary Quarterly 3d ser., 47 (01 1990).CrossRefGoogle Scholar On working-class households. see Stansell, Christine, City of Women: Sex and Class in New York, 1789–1860 (New York. 1986).Google Scholar

94. For a wonderful example of the crossover effects and what happened when crossover took place see Kerber, Linda K., “The Paradox of Women's Citizenship in the Early Republic: The Case of Martin v. Massachusetts, 1805,” American Historical Review 97 (04 1992).CrossRefGoogle Scholar See also Scott, “Language, Gender, and Working-Class History,” 9. describing how the Chartists drew on Locke to formulate a theory of universal entitlement to political rights based on a proprietorial claim of property in labor-power that simultaneously stated the theory as a theory of manhood suffrage. “The Chartists’ demand for universal manhood suffrage accepted the idea…that only men concluded and entered the social contract; indeed, the identity that Chartists claimed with those already represented was that all were male property holders.”

95. Boydston, Home and Work, 27.

96. Ibid., 50. The point is, of course, not that only men earned wages, but that only male wage-earning counted.

97. As Susan Porter Benson states in the opening lines of a review of Boydston's book (International Labor and Working-Class History 43 [Spring 1993]:143–45), “No one who has scrubbed a floor or tried to calm a disconsolate child would deny that work in the home places heavy physical and mental demands on those who do it.”CrossRefGoogle Scholar

98. Boydston, Home and Work, 55 (emphasis in original).

99. Ibid., 123.

100. State v. Higgins, 1 N.C. 36 (1792), 39 (emphasis in original). Defoe, Great Law of Subordination Consider'd, 97. Schouler, A Treatise on the Law of the Domestic Relations (2nd. ed. 1874), 600;Wood, Horace Gay, Treatise on the Law of Master and Servant (Albany, 1877), 3–4.Google Scholar

101. See Booth, Households, 95, 101.

102. See, generally, Tushnet, Mark, The American Law of Slavery, 1810–1860: Considerations of Humanity and Interest (Princeton, 1981).Google Scholar

103. Ibid., 139–56. The race character of enslavement could not render the interior of the plantation economy invisible, but it could render it qualitatively different, which was partway to the same result. In revolutionary republican discourse, slavery had meant political dependence, lack of autonomy. It had been a term of opprobrium used by revolutionaries to describe the consequences of political subordination of the colonies to Britain. The racial character of American slavery weakened the crossover effect between this discourse and domestic political culture, for politics and freedom were “white” phenomena, while American slavery was black. In other words, race enabled republicans to segregate (contain) slavery culturally, and thus continue to be slaveholders. It enabled slavery to continue to exist in alliance with republicanism. Had American slavery been culturally less specific it would have been far more troublesome to elite political culture. The classic statement of this argument is Morgan, American Slavery, American Freedom. See also Harris, J. William, Plain Folk and Gentry in a Slave Society: White Liberty and Black Slavery in Augusta's Hinterlands (Middletown, Conn., 1985).Google Scholar

104. Boydston, Home and Work.

105. William James Booth's analysis of the liberal household, for example, shows that its voluntarist bets are substantially hedged when it comes to spousal and parental relations. According to Booth, “tensions” occur in Lockean thought “where the contractarian drive of Locke's analysis encounters relations that appear to him as less amenable to egalitarian, voluntaristic redefinition.” Booth attempts to turn these “tensions” into exceptions by calling them “embarrassments,” but it is difficult to maintain a paradigm of freedom and equality in human relations where these are riddled by subordinations founded in “nature.” See Booth, Households, 101–106.

106. See Hale, Robert L., “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38 (09 1923);CrossRefGoogle Scholar Steinfeld, “Philadelphia Cordwainers’ Case,” 20–24.

107. Steinfeld, “Philadelphia Cordwainers' Case,” 21–22.

108. Ibid., 23.

109. Oppression comes about through “the operation of ordinary rules of property and contract in a world in which productive assets [are] unequally distributed.” Steinfeld, Invention of Free Labor, 9.

110. Here I use discipline in its Foucauldian rather than its physical sense.

111. Instead of attempting to restate disciplinary power in terms of property, as Hale and Steinfeld do, my analysis here suggests the importance of keeping them distinct. The opening words of Karen Orren's Belated Feudalism suggest the same track: “This book began with [the] idea…that more could be learned about the distinctive character of modern liberal societies from studying their systems of labor than from studying their systems of property” (ix). The lesson of domestic relations law, it seems to me, is that although there are considerable overlaps, analysis of the hierarchies of interhuman relations cannot be reduced to statements about property rights. Rather, the positive disciplinary hierarchies of domestic relations law existed in independently grounded counterpoint (a counterpoint grounded in difference) to proprietorship and its micropolitics of exclusion. In effect, what I am suggesting here is the importance of distinguishing between concepts of freedom as self-ownership and freedom as autonomy, between property and governance, or jurisdiction. Liberals, following Locke, reduce autonomy to self-ownership; that is, liberal political theory (macro and micro) elides discipline. But in fact it is important to avoid that elision, because self-ownership carries different autonomy-weights for different people, depending on the positions they occupy in the gender, race, and class hierarchies of domestic relations. On this, see Scott, “Language, Gender and Working-Class History,” 9.

112. Stanley, “Conjugal Bonds and Wage Labor,” 477.

113. Ibid.; Hartog, “Mrs. Packard on Dependency,” 89, 90.

114. Orren, Belated Feudalism, 78–81, 95–111; Tomlins, Law, Labor and Ideology, 259–92.

115. Schouler, A Treatise on the Law of the Domestic Relations, 599.

116. See, generally, Cain, Maureen, “Realism, Feminism. Methodology, and Law,” International Journal of the Sociology of Law 14 (1986):255–67.Google Scholar

117. Wickham, Gary, “Cautious Postmodernism and Legal Truths,” Law In Context 7 (1989):39–53.Google Scholar

118. Such an approach theorizes legal knowledge, for example, as constituted by a plurality of legal discourses, which are themselves understandable ultimately as discourses of class, gender, and race, but of which only some aspects—largely the bourgeois, the masculinist, the Caucasian—end up constituting “official” knowledge, by which I mean that which we think of when we contemplate “the” law. To recognize this is to establish important critical purchase. “The” law is presented to us—in appropriate modernistic fashion—as a universal, an ontological singularity, a metanarrative. But like all knowledge, law is constructed locally. Hence “the” law may be reconceived as nothing more than a modality of particular species of rule.

119. Cain, “Realism, Feminism, Methodology, and Law,” 261.

120. Grbich, “The Body in Legal Theory,” 67–69.