German Historical Institute London:
Bibliography: Research on British History
in the Federal Republic of Germany

WILLIBALD STEINMETZ, Begegnungen vor Gericht. Eine Sozial- und Kulturgeschichte des englischen Arbeitsrechts, 1850-1925, Publications of the German Historical Institute London, 51 (Munich: Oldenbourg, 2001), 728 pp  €79,80

ISBN 3-486-56589-3

This book examines English labour law as it was perceived, and as it actually worked, from the mid-19th century up to the inter-war years. Key events such as the Taff Vale case or the reform of the old master and servant laws have already attracted historians’ attention, but here Willibald Steinmetz focuses on ordinary disputes between individual employers and employees who were seeking what they felt to be their rights in supposedly trivial matters such as wrongful dismissal, unpaid wages, breaches of contract and accidents at work.

If these cases reached the courts at all, they were usually dealt with in the lower echelons of the justice system. Drawing from a wide variety of local court records, newspapers, trade union archives and other materials, Steinmetz paints a vivid picture of employers and employees as they faced each other inside and outside English magistrates’ courts, and also in county courts which, in this book, are looked at systematically for the first time in their capacity as tribunals for settling employment disputes.

The result is a new legal history of labour which goes far beyond traditional lawyers’ legal history. A critical look is taken at the common lawyers’ master narrative of the ‘Rise and Fall of Freedom of Contract’ (Atiyah), and this is contrasted with the law in action, as experienced in the lower courts. Steinmetz shows how legislation and common law doctrines were applied, disfigured, turned to other purposes or, more often than not, evaded at the local level by all parties concerned.
But Steinmetz does not stop here. He also takes issue with old-style labour history and its master narrative of the trade unions’ secular and heroic struggle against class legislation and ever more hostile magistrates and judges. While not denying, and indeed demonstrating, that class-bias frequently occurred in English courts, he claims that these cases do not adequately explain why English employees, and also employers, increasingly kept away from legal solutions to their disputes from the late 1870s onwards.

This process, the progressive de-juridification of individual employment relations in England from the late Victorian period to the inter-war years and beyond, still needs an explanation and forms the overarching narrative of the book. According to Lord Wedderburn, one of Britain’s leading experts in the field, ‘most workers’, and here one might add employers, ‘want nothing more of the law than that it should leave them alone’. This statement reflects the situation in the late 1960s, before industrial tribunals got to work on a large scale. Since then more individual employees have sued their employers, and in increasing numbers, than ever before in Britain.

The period with which this book is concerned, however, saw the opposite trend. Starting in the late 1870s for the magistrates’ courts, and around 1900 for the country courts, English employees and employers turned away in droves from ordinary law as a means of solving disputes. Describing this movement for the first time in quantitative terms is one major achievement of this book, explaining it from various angles is another.

A comparison with developments in Germany gives some initial clues as to why de-juridification took place in England, apart from the obvious reason of class-biased justice. At around the same time as English employees and employers were leaving the courts, their German counterparts, especially the manual workers, turned to the newly created industrial tribunals, the Gewerbegerichte of 1890, in ever larger numbers. This success stimulated the creation of similar tribunals for business clerks, the Kaufmannsgerichte, in 1904, and, finally, general employment tribunals, the Arbeitsgerichte, in 1926. While these tribunals and German labour law itself were by no means exempt from class bias, German employees, who consistently made up more than 90 per cent of plaintiffs, nonetheless used them from the mid-1900s onwards at a rate of more than 100,000 per year, rising to more than 300,000 per year by 1928.  By this time individual litigation between employers and employees in England had come to an almost complete halt.

Such a massive divergence in attitudes towards employment litigation in England and Germany is largely attributable, Steinmetz argues, to institutional arrangements. The German employment tribunals were attractive to employees for precisely the inverse reasons to those that made English magistrates’ courts and county courts unattractive: costs in the German Gewerbegerichte were low, procedures relatively quick and transparent, and judges were obliged to suggest amicable solutions before allowing contentious proceedings.

The ‘institutionalist’ argument is then further strengthened by chapters exploring barriers to access and obstacles to success for complaining employees, and employers, in English magistrates’ or county courts. Starting with examples of individual cases, Steinmetz looks more closely at costs and loss of time for plaintiffs and defendant, risks of dismissal for complaining employees and witnesses, the disproportionate advantages of financially secure litigants (insurance companies), the inadequacy of the poor man’s lawyers, the inconveniences of cross-examination and publicity of proceedings, and above all the poor availability of legal aid.

This last aspect receives particular attention in an innovative chapter with case studies on several trade unions (blue collar and white collar), offering insights into their methods of giving legal advice and financial help to members. On the one hand it appears that without the unions’ intervention the number of individual employees suing in English courts would have been even lower than it actually was, and on the other that even for middle-sized unions the costs and other barriers to litigation were so high that these unions had to abstain, often against their will, from supporting their members in all but the most promising cases.

This finding, again, sheds light on another argument sometimes advanced by historians to explain the relative legal abstentionism of English employees. According to these historians, recourse to law became unnecessary, at least for organised workers, to the extent that their grievances were effectively dealt with by an increasingly elaborate structure of arbitration and conciliation procedures that was set up in many English industries from the late 1860s onwards. Against this view Steinmetz contends that collective extra-legal grievance procedures cannot be regarded, and indeed were not regarded by workers and unions at the time, as a complete functional equivalent to dealing with individual complaints by law. Rather, it is shown that these procedures had the effect of redefining individual disputes about rights and turning them into collective questions of expediency, thereby gradually transforming the nature of industrial relations in England into a law-free culture in which conflicts, irrespective of their dimensions, could only be solved collectively by negotiation or strikes, or not at all.

In the last chapter of the book Steinmetz goes on from institutionalist arguments to an analysis of the rhetoric and structure of English law itself, and the consequences these had for employers and employees encountering one another in court. This is again done by looking at concrete examples. Here, disputes are chosen which turned around the definition of certain terms that had legal as well as colloquial meanings. These dispute are, firstly, cases concerning the definitions of ‘master’ and ‘servant’; secondly, cases turning on ‘customs’; and thirdly, cases in which the meaning and value of ‘labour’ itself were contested.

Despite differences in detail, all three case studies in legal historical semantics point to similar general conclusions. Expressed in most abstract terms, it can be said that the language of English law, as far as employment relations were concerned, was at the same time too complex and not complex enough to provide, and be perceived as, an adequate solution to the disputes in question. This was due to the fact, on the one hand, that the language of the Common law with its emphasis on certain principles – for example the rule that promises must be kept and other rather crude dichotomies such as ‘master’ and ‘servant’ – made its application to the complex hierarchies in English workplaces extremely difficult, if not impossible. On the other hand, the Statute law was in itself already a poorly arranged body of overlapping provisions often containing contradictory definitions of essential terms such as, for example, ‘workman’. Especially when interpreted by Common law rules or judges’ common sense it could produce decisions which were, even in the most ordinary cases, completely unpredictable.

Both experiences, the inapplicability of the Common law because of its remoteness from real working life, and the unpredictability of outcomes under Statute law because of its complexity and interplay with Common law doctrines, contributed to the process of de-juridification described and explained in this book. Along with occasional class bias and institutional arrangements it was therefore the rhetoric and structure of English law itself which discouraged English employees, and to a lesser extent employers, from using the law.

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