Law and labor in the American political economy

In 1906, a German distinguished (somewhat neglected) economist and sociologist Werner Sombart published Why is there no Socialism in the United States?a book which will become a famous work on American exceptionalism in this respect to this day.  There are a number of reasons given by Sombart for the weakness of Socialism in the US: the lack of a feudal heritage in the American short history; unlike the European nations that retained numerous remnants of traditional attitudes and institutions, the U.S. was almost completely dominated by the spirit of competition, material acquisitiveness and individualistic culture; and a favorable attitude toward capitalism held by workers in America. He wrote: “…the complete fruition of the commercial drive and the passion for business are indigenous, it is in the worker, who wants to earn as much as his strength will allow, and to be as unrestrained as possible” (p. 20).
Sombart also made two additional points regarding the failure of expansion and reception of socialist ideas and the lack of radical political consciousness.  Sombart argued that the worker in America had a high esteem for the American system of democratic government and his own participation in it. A second, more practical explanation concerned the tremendous power and stability of the two-party political system. A key factor was seen to be the ability of the major parties to control financial resources and political “spoils,” and thus attract members while co-opting leaders of potential opposition movements.

On July 5, 1935, President Franklin D. Roosevelt signed the National Labor Relations Act into law.

On July 5, 1935, President Franklin D. Roosevelt signed the National Labor Relations Act into law.

Following this important pioneering Sombart’s analysis, which surely entails various problems and blind spots, scholars and activists have continually debated whether the American labor is weak and conservative, and why. Gerald Friedman (University of Massachusetts at Amherst) decisively stresses that recognizing the role of law in the shaping of the American labor movement is crucial and necessary. In this very interesting paper “American Labor and American Law: Exceptionalism and its Politics in the Decline of the American Labor Movement” (open access), Friedman argues that already in the 19th century, the American legal tradition and judicial system contributed to “exceptionalism” by privileging individual rights over collective action, and by limiting the power of organizations, including governments as well as unions, over individual choice. While this individualist bias was modified in favor of the working class in the 1930s in the light of the New Deal legislations (Fair Labor Standards Act, the National Labor Relations Act – Wagner Act and more), the Supreme Court quickly restored the individual bias in American labor law, leading to the collapse of unions in the later 20th century. For example, the Supreme Court never accepted the real intent of the Wagner Act to promote unionization.
This paper urges us – it urged me – to reflect on the essence of law.  The essence of law, as I perceive it and at first glance it might seem as odd, embedded not in its formal definition and phrasing, but in its practical heterogeneous applications, while it is “translated” by different actors (on the ground and in the court) from “law in book” to “law in action” in a specific societal context, not just projecting on social  phenomena (such as labor, power and capital) but also determining their relations.
I can not restrain myself not to end this post with this remarkable Jean-Jacques ‪‎Rousseau‬’s quote: “The ‪rich‬ holds the ‪law‬ in his purse..”

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