“There Oughta Be a Law”

Catherine Kemp and Marianne Garneau argue that law doesn’t advance social progress, but instead tries to halt the power struggles that do.

“There oughta be a law!” We say this when something has gone wrong and needs fixing. By the same token, we see an existing law and we think that its purpose is to solve the problem named in the law. In either case the solution may not be perfect, but we can always come back later and tinker with it — reform it — as long as we’ve elected lawmakers who share our concerns. (If we haven’t, on this view, our task is clear: elect new ones.)

However, this view of law assumes that the people pushing for a new law, or fixing an old one, see the same problem. This assumption is most often a fantasy, particularly when a law steps in to an existing, and unresolved, conflict, like that between employers and employees, workers and management, labor and capital. The fantasy makes people forget that laws are the result, not the cause, of pressure to redress and reform.

Laws are first and foremost alternatives to what lawyers call “self-help”: the resort to the informal, “extralegal” solution of problems by the people affected. For example, it seems obvious that murder statutes are intended to protect the lives of members of a society. But such provisions are really designed to prevent the cycle of revenge-killing that erupts when people resort to self-help in the face of a murder. Revenge-killing is disruptive to society at large, so that even societies without any very great regard for human life will outlaw murder in order to maintain social stability. Here a law appears to serve one purpose while in reality serving a sometimes contrary, altogether different purpose. In this case murder statutes are generally desirable for everyone regardless of the end in view (provided they are administered justly), but such a consensus can mask the diversity of purposes, and interests, the law serves. The question for people pinning their faith on law — and on the politics that produces it — is when and whether this alternative is desirable, by whom, and why. 

Take, for example, the Magna Carta, the most famous foundational document for what we call today the rule of law. The Great Charter, as it was known, is viewed as a crucial early declaration of the rights of a people against their king, a document that limits the actions not only of that first king but also his successors. After its passage, the story goes, people were ruled by laws and not by men. The restriction of the rights of kings in favor of the people’s rights is, in this view, the purpose of the Magna Carta.

This, however, is a fantasy. Not only did the Magna Carta mean very different things to the different people who pushed for it and drafted and signed it, but none of those things is a declaration of the rights of the people or the establishment of the rule of law. Instead, a group of aristocrats known to history as “the barons” found themselves unhappy with the rule of King John of England, and they got organized and threatened a rebellion — a pressure campaign — against the king. To head off the threat, John met them in a water-meadow near the Thames river and agreed, under duress, to a bunch of restrictions on his usual absolute powers as king, a change in his relation to the aristocracy that almost exclusively benefited the barons, not anyone else. The barons got a document they thought they might be able to enforce against John and his successors to preserve and expand their own power, and John got some breathing room from the rebellion until he could get the Pope to annul the agreement, which took a few months, during which the king tried to cancel the agreement himself. The Magna Carta was intended to end the conflict, but it failed, and in the end the two sides were plunged into a civil war. Its re-enactment became a bargaining chip in future power struggles between king and aristocracy, over taxes and succession; it was sometimes sworn as part of coronation oaths in exchange for political support. The charter itself, rather than being an early manifestation of the rule of law and the rights of the people, was instead a failed truce that served very different purposes for the parties who agreed to it, purposes altogether different from the one we identify today.

Title VII of the Civil Rights Act

Similarly, most people believe that the purpose of Title VII of the 1964 Civil Rights Act in the US is to prevent unlawful discrimination in employment decisions. Discrimination on the basis of race, especially, but also sex and other attributes forms part of the general injustice that the Civil Rights Act (along with related legislation passed subsequently) is supposed to address. Title VII laid out the terms under which an employee suffering unlawful discrimination in the workplace can file a complaint against her employer, and established a procedure for handling these complaints. It created a new federal agency, the Equal Employment Opportunity Commission (EEOC), to oversee the whole matter.  The ostensible purpose of the legislation is to give employees harmed by employment discrimination a path to redressing their harms, where before they had none.

But this isn’t what Title VII does at all. Not because it’s broken, or because it’s been weakened by subsequent legislation in less friendly congresses or by hostile court decisions. Title VII was never intended to shift power to employees, or to curb employer discretion in discriminating against them. What the legislation really does is protect employers both public and private from more invasive and more lasting regulation that would more severely curtail employer freedom to treat people differently. 

Title VII creates new causes of action — grounds on which one party can sue another — sure. But at the same time it sets up a huge and hugely bureaucratic obstacle to pursuit of those cases. Title VII mandates initial efforts at informal resolution in the complaint process administered by the EEOC or by analogous state agencies, before complainants can sue their employers in federal court. Under the statute, workers have to wait 180 days or more, depending on state law, before they can sue, and they must first file a complaint with the EEOC, whose records of complaints are not available to the public. Both the EEOC and the state agencies to which the EEOC hands off cases filed in particular states cultivate long lists of complaints awaiting review, so that employees waiting their standard 180-240 days never see a resolution before the agency. In the meantime, again, they cannot sue in federal court, and they have to keep working, somewhere, often at the offending employer’s firm. Further, unless they are fortunate enough to attract the attention of a not-for-profit with its in-house attorneys, employees are either paying their lawyers out of pocket (very, very rare), or they have secured counsel working on contingency, who only take cases they know will pay them, and expect to be paid when the case settles. Most workers suffering employment discrimination are not rich enough to pay their lawyers out of pocket for the 1-3 years it takes to get these cases before a court, few get adopted by an interested not-for-profit, and those whose attorneys are expecting to get paid at settlement have zero self-determination in the question of when, or whether, to settle: the lawyers decide that, and in the event of a disagreement, simply send along a bill for the previous months or years of work, to be paid immediately, which for most complainants means they have to settle, immediately.

The long waiting periods, arcane bureaucracy, and enormous costs intimidate most employees into silence, either in the form of never filing anything, or of withdrawal or settlement of the complaint. What this means is that workers suffering employment discrimination very rarely ever make it into court. What most people don’t realize is that this is the real purpose of Title VII: to keep workers out of courts and away from judges and juries who might render decisions that really change the employer-employee relationship on this issue by interpreting Title VII to mean something unfavorable to employers and by handing down both decisions and remedies — money damages — that catch the attention of the press and of other employees who would then be encouraged to follow suit.  Such outcomes risk real alteration to the power relations between employers and employees.  With more women and more non-white employees in the workforce, who cost employers much less than white men, discrimination among workers on the basis of race and sex is something employers find highly desirable. What looks like the problem of unjust employment discrimination Title VII is created to solve is really the problem of protecting the employer discretion and leverage to continue discriminating on the basis of race and sex. Title VII restructures and reifies the existing, unjust relations between employers and employees. On those grounds the statute is a resounding success.

Labor Relations Law

In a recent review of a collection of essays evaluating the state of labor law, Christopher Tomlins raises a similar doubt about the purpose of the collection of statutes governing labor:

[i]f one’s criterion is an effective organized labor movement and one believes ‘labor law’ should be defined as a set of techniques designed to produce a strong and effective organized labor movement, then one has grounds for believing current labor law is ineffectual. But if one’s criterion is an ineffective and weak organized labor movement and one believes labor law is best defined as that set of techniques tending to that end, then one must conclude that the current regime is highly effective. 

As this site has argued before, one of the fundamental purposes of labor relations law is to funnel worker activity into processes that minimize disruption of production and commerce, i.e. capitalist wealth-making. An increase in labor “rights” goes hand-in-hand with tighter restrictions on worker activity. Legal processes at workers’ disposal like Unfair Labor Practices divert workers from overt class conflict (“self-help”), and protect employers by limiting their liability. Overall, labor law has cultivated a certain type of docile unionism, and reforms on the table such as the EFCA or the PRO Act whose purpose is to make it “easier” to organize also dilute militancy by lowering the bar of worker activity necessary to obtain legal certification and bargaining status.

The Civil Rights Act itself, like the National Labor Relations Act, was the result of sustained extralegal pressure — a form of self-help — to amend existing power relations. During the legislative process for Title VII, however, pro-employer interests spotted an opportunity to derail future pressure to treat employees equally regardless of race and sex with an arrangement deeply solicitous of the economic interests of employers and highly injurious to those of workers. They made adoption of Title VII’s astoundingly pro-employer provisions a condition of their support for the rest of the bill. 

Major legislative changes in response to social unrest, like the Civil Rights Act and the National Labor Relations Act, are similar in that they are the results of truces. Like all truces, their fundamental point is to demobilize and restore order. But the justifications of these truces are not the same thing as their purposes. These laws may mark important social changes created by widespread struggle, but we have to remember the law’s relationship to those changes. Law prevents further change. It helps lock into place the new social conditions that resulted from conflict, and discourages the struggle that generated the change in the first place.

It does this in at least three ways. It tames conflicts, as with labor law’s rules on what workers can and cannot do in their collective action. It individualizes and delays responses to problems, like Title VII does, leaving people alone and beaten down. And it encourages us to think we need to change the law before collective action is possible — starting from legal and legislative change and then hoping it brings about organization and social unrest, as advocates of the PRO Act tend to do, gets all of this backward. A core conviction behind Organizing Work is that the kind of labor movement we want will require more “self-help,” not less – self-organization, collective action. Since the primary purpose of law is to prevent that kind of activity, organizers should generally be skeptical about the terms of any truce offered by the law, and about the law’s justifications for itself. Finally, the law makes us think that the best possible society is the one we have now plus whatever small gains can be won by further legal tinkering, which precludes the imagination of more widespread social change carried out by working class people acting collectively.

Of the labor movement, Tomlins remarks that “[l]egislative action requires pressure, pressure requires organization, and organization must therefore occur prior to any possibility of legal change.” The barons pressing King John for concessions knew this, and kept it up, even to the point of civil war. The fantasy of the rule of law that we see expressed in our mythology of the Magna Carta makes us think that rights begin with law, or at least require law before they can be exercised. This makes us uncritical believers in law’s purpose, when in fact we should ask, every time, Cui bono? (who benefits?) and instead direct our efforts at exerting pressure for real change, rather than supplicating electoral politics for the gift of workers’ rights.

Catherine Kemp teaches philosophy of law at John Jay College of Criminal Justice of the City University of New York. Marianne Garneau is an organizer with the IWW, a labor educator, and the publisher of Organizing Work.