random-thought-depository:

This is a post about the right to use the bathroom when at work, but there’s a tangential discussion about the history of labor laws in it that was very interesting to me:

“Belated Feudalism,” a study by UCLA political scientist Karen Orren, suggests a surprising, and shocking, answer. According to Orren, long after the Bill of Rights was ratified and slavery abolished – well into the 20th century, in fact – the American workplace remained a feudal institution. Not metaphorically, but legally. Workers were governed by statutes originating in the common law of medieval England, with precedents extending as far back as the year 500. Like their counterparts in feudal Britain, judges exclusively administered these statutes, treating workers as the literal property of their employers. Not until 1937, when the Supreme Court upheld the Wagner Act, giving workers the right to organize unions, did the judiciary relinquish political control over the workplace to Congress.

Prior to the ’30s, Orren shows, American judges regularly applied the “law of master and servant” to quell the worker’s independent will. According to one jurist, that law recognized only “the superiority and power” of the master, and the “duty, subjection, and, as it were, allegiance” of the worker. Medieval vagrancy statutes forced able-bodied males into the workplace, while ancient principles of “entire” contract kept them there. A worker hired for a period of time – often five to 10 years and beyond – was legally not entitled to any of his earnings unless and until he completed the entire term of his contract. When rules of vagrancy and entirety failed, judges turned to other precedents, some dating from the time of Richard II, requiring workers seeking employment to obtain a “testimonial letter” from their previous employer. Because employers were under no legal obligation to provide such letters, judges could effectively stop workers from ever trying to move on.

As soon as workers entered the workplace, they became the property of their employers. Judges enforced the 13th-century rule of “quicquid acquietur servo acquietur domino” (whatever is acquired by the servant is acquired by the master), mandating that employees give to their employers whatever they may have earned off the job – as if the employee, and not his labor, belonged to the employer. If an outside party injured an employee so that he couldn’t perform his duties, the employer could sue that party for damages, “as if the injury had been to his chattel or machines or buildings.” But if the outside party injured the employer so that he could not provide employment, the employee could not likewise sue. Why? Because, claimed one jurist, the “inferior hath no kind of property in the company, care, or assistance of the superior, as the superior is held to have in those of the inferior.”

“Belated Feudalism” set off multiple explosions when it appeared in 1991, inflicting serious damage on the received wisdom of Harvard political scientist Louis Hartz. In his 1955 classic “The Liberal Tradition in America,” still taught on many college campuses, Hartz argued that the United States was born free: Americans never knew feudalism; their country – with its Horatio Alger ethos of individual mobility, private property, free labor, and the sacred rights of contract – was modern and liberal from the start. For decades, liberals embraced Hartz’s argument as an explanation for why there was no – and could never be any – radicalism in the United States. Leftists, for their part, also accepted his account, pointing to the labor movement’s failure to create socialism as evidence of liberalism’s hegemony.

But as Orren shows, American liberalism has never been the easy inheritance that Hartz and his complacent defenders assume. And the American labor movement may have achieved something far more difficult and profound than its leftist critics realize. Trade unions, Orren argues, made America liberal, laying slow but steady siege to an impregnable feudal fortress, prying open this “state within a state” to collective bargaining and congressional review. By pioneering tactics later used by the civil rights movement – sit-ins, strikes, and civil disobedience – labor unions invented the modern idea of collective action, turning every sphere of society into a legitimate arena of democratic politics. It’s no accident that when the factory walls came tumbling down, other old regimes – of race, gender, and sexual orientation – began to topple in their wake.”

This made me think of coverture laws and how new the legal consensus that marital rape is a thing is. We usually think of those things in terms of sexism, and I don’t exactly think that’s wrong – but that and the thing Robin is talking about feels like different parts of the same elephant to me. I know I reference that essay a lot, but what bubbles up in my mind when I think about this is something @balioc said in their essay on The Rule of the Clan: “Individual liberty – and even, really, individual identity – are not naturally-occurring phenomena.”

My mind here turns to David Graeber’s idea of “human economies”; economies “where the primary focus of economic life is on reconfiguring relations between people, rather than the allocation of commodities.” “The servant belongs to the master” fits with that framework: an employment contract isn’t a transaction of money for labor, it’s the creation of a hierarchical relationship. I’ve kind of brushed against this before, but the housewife role really strikes me as a late survival of the human economy.

I guess the big idea I’m getting out of this is “Tiamat died slowly, and her bones are close to the surface” (in an analogy where the feudal/human socioeconomic system is Tiamat and liberalism is Marduk).

Lavatory and Liberty: The Secret History of the Bathroom Break