When we talk about government intervention in the labor market, we often picture a steady growth in regulation, from the elimination of child labor to the $15 an hour minimum wage being instituted in Los Angeles.

In a 1943 Columbia Law Review paper, Harvard law professor E. Merrick Dodd argues that the laissez-faire era in the nineteenth century represented just a brief blip in a long history of powerful labor regulations in England and the U.S.

Dodd starts his story of legal restrictions on work with the Black Death. The plague hit England in 1348, killing off so many people that wages for agricultural workers shot up. King Edward (a land owner himself) and Parliament (dominated by employers) responded with new laws. Employees were required to work at the same rates they’d been paid before the plague, and to stay with their employers, at risk of criminal penalties.

For the next two centuries, Dodd writes, Parliaments run by the English employing class continued to pass similar laws. A particularly strong set of rules set in 1562 mandated employment contracts of at least a year, forbade laborers and artisans from leaving their communities without a testimonial permitting them to leave their masters, and required anyone who was not a landowner, student, apprentice or “gentleman born” to work in agricultural labor. It also mandated maximum—though not minimum—wages, and set working hours.

Meanwhile, in the American colonies and early republic, the clearest government interventions in free contracts between employers and employees were the laws permitting slavery and indentured servitude. In the eighteenth century, work done off the farms became more important, leading to rumblings of unionization and collective bargaining in both England and the U.S. The governments responded with new anti-union regulations, often making it a crime for workers to organize for better pay or shorter hours.

Although the nineteenth century is often seen as a period of free markets, Dodd notes that “a legal system which treats combinations of workers for collective bargaining as criminal conspiracies is not a genuine system of laissez-faire from the workers’ point of view.”

As the decades went on, regulations began to take a new tone. Collective bargaining was gradually decriminalized, and then, in the early twentieth century, fully legalized. Meanwhile, Parliament began to pass laws intended to protect workers. One significant benchmark was a 1847 English law limiting women and children to 10 hours a day of work.

Ignoring for a moment the U.S., where black workers continued to face massive legal barriers to free employment until well after the Civil War, Dodd writes that we might think of the English laissez-faire era starting with a 1825 law loosening rules on collective bargaining and ending with the limits on working hours set in 1847. And, if we do that, he notes, “the era of free bargaining in England-of that freedom of contract which so many American judges have thought of as a fundamental feature of Anglo-Saxon traditional liberty-shrinks to a mere interlude of twenty-two years.”



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Columbia Law Review, Vol. 43, No. 5 (Jul., 1943), pp. 643-687
Columbia Law Review Association, Inc.