The Theory and Policy of Labour Protection
etc. statutes Germany. Laws
The Theory and Policy of Labour Protection
PREFACE
In this book Dr. Schäffle seeks to carry out still further the idea which he developed in his last book (The Impossibility of Social Democracy) of the essential difference between a socialistic policy and what he calls a Positive Social Policy, proceeding constructively upon the basis of the existing social order. He emphatically vindicates the Emperor William’s policy, as shown in the convening of the Berlin Labour Conference, from the charge of being revolutionary, or of playing into the hands of the Socialists.
The first part contains an attempt to settle and render more precise the use of terms in labour-legislation, as well as to classify the different aims and purposes with which it sets out, and then passes on to what will probably be to English readers the most interesting part of the book – a discussion of the Maximum Working Day in general, and the Eight Hours Day in particular. Here the author commits himself in favour of a legal ten or eleven hours day for industrial work, with special provisions for specially dangerous or exhausting trades, and with freedom of contract below that limit, and brings evidence to show that such a step has already been justified by experience. But after a careful discussion of what it involves, and after disentangling with some care the difficulties with which it is surrounded, he pronounces emphatically against the universal compulsory Eight Hours Day, which he regards as not practicable for, at any rate, a very long time to come.
On the vexed question of the labour of married women, Dr. Schäffle is less explicit, and seems somewhat to halt between two opinions. He will not commit himself to the desirability of an absolute prohibition of it, but it seems clear that his sympathies lean that way.
The discussion of the Social Democratic proposals in the German Reichstag, known as the Auer Motion, is very careful and appreciative, but Dr. Schäffle takes care to disentangle the really Socialistic element in them, and will only support the introduction of Labour Boards and Labour Chambers as consultative bodies, not as holding any power of control over the Inspectorate. He is willing to allow to the working classes full vent for their grievances, but dreads to see them entrusted with the actual power of remedying them.
His plea for more international exchange of opinions and international uniformity of practice is one which must be echoed by all who have the cause of Labour at heart. To that larger sense of brotherhood which extends beyond the bounds of country we must look for the accomplishment of the Social Revolution which is surely on the way. On a task so large, and involving such far-reaching issues to the progress of the world, the nations must take hands and step together if the results are to be of permanent value. The paralyzing dread of war, the competition of foreign workmen, the familiar Capitalist weapon that “trade will leave the country” if the workers’ claims are conceded – all these dangers in the way can only be met by the drawing closer of international bonds, by the intercommunication of those in all countries who are fired by the new ideals, and are making towards an ordered Social peace out of the chaos of conflicting and competing energies and interests in which we live.
It cannot but be well to be reminded, as Dr. Schäffle reminds us, of the strong expression of opinion uttered by the Berlin International Labour Conference as to the beneficial results which might be looked for from a series of such gatherings, or to ask ourselves, why should not England be the next to convene a Labour Conference to gather up the experiences of the last few years, which have been so full of movement and agitation in the Labour world, as well as to give to other nations the benefit of the earnest and strenuous investigations, now nearly drawing to a close, of our own Royal Commission on Labour?
At the request of Dr. Schäffle, the von Berlepsch Bill, which has been brought in by the German Government in order to carry out the recommendations of the Berlin Conference, has been inserted as an Appendix at the end of the English edition.
A. C. MORANT.BOOK I.
INTRODUCTORY
In past years German Social Policy was directed chiefly to Labour Insurance, in which much entirely new work had to be done, and has already been done on a large scale; but in the year 1890 it entered upon the work of Labour Protection, which was begun long ago in the Industrial Code, and this work must still be carried on further and more generally on the same lines.
This result is due to the fact that the Emperor William II. has inscribed upon his banner this hitherto neglected portion of social legislation (which, however, has long been favoured by the Reichstag and especially by the Centre), has placed it on the orders of the day among national and international questions, and has launched it into the stream of European progress with new force and a higher aim.
The subject is one of the greatest interest in more than one respect.
It was to all appearance the cause of the retirement of Prince Bismark into private life. Some day, perhaps, the historian, in seeking an explanation of this important event in the world’s history, will inquire of the political economist and social politician, whether Labour Protection, as conceived by the Emperor – especially as compared to Labour Insurance – were after all so bold a venture, so new a path, so daring a leap in the dark as to necessitate the retirement of that great statesman. I am inclined to answer in the negative, and to assume that the conversion of Social Policy to Labour Protection was the outward pretext rather than the real motive of the unexpected abdication of Prince Bismark of his leading position in the State. The collective result of my inquiry must speak for itself on this point.
The turn which Social Policy has thus taken in the direction of Labour Protection, raises the question among scientific observers whether it is true that the science of statecraft has thus launched forth upon a path of dangerous adventure and rash experimentation, and grappled with a problem, compared with which Prince Bismark’s scheme of Labour Insurance sinks into insignificance. Party-spirit, which loves to belittle real excellence, at present lends itself to the view which would minimise the significance of Labour Insurance as compared with Labour Protection. But this is in my opinion a mistake. Though it is impossible to overestimate the importance for Germany of this task of advancing over the ground already occupied by other nations, and of working towards the introduction of a general scheme of international Labour Protection calculated to ensure international equilibrium of competition, yet in this task Labour Protection is, in fact, only the necessary supplement to Labour Insurance. Both are of the highest importance. But neither the one nor the other gives any ground for the charge that we are playing with the fires of social revolution. The end which the Emperor William sought to attain at the Berlin Conference, in March, 1890, and by the Industrial Code Amendment Bill of the Minister of Commerce, von Berlepsch, is one that has already been separately attained more or less completely in England, Austria and Switzerland. It is in the main merely a question of extending the scope of results already attained in such countries, while what there is of new in his scheme does not by any means constitute the beginning of a social revolution from above. The policy of the Imperial Decree of February 4th, 1890, and of the Bill of von Berlepsch, in no wise pledges its authors to the Radicals. A calm consideration of facts will prove incontestably the correctness of this view.
However, it is not any politico-economic reasons there may have been for the retirement of Prince Bismark, nor the very common habit of depreciating the value of Labour Insurance, nor yet the popular theory, false as I believe it to be, that the Emperor’s policy of Labour Protection is of a revolutionary character, which leads me to take up once again this well-worn theme.
If the “Theory and Policy of Labour Protection” were by this time full and complete, I would willingly lay it aside in order to take into consideration the significance of Bismark’s retirement from the point of view of social science, or to attempt to reassure public opinion as to the conservative character of the impending measures of Labour Protection. But this is not the case.
It is true we have before us an almost overwhelming mass of material in the way of protocols, reports of commissions, judicial decisions, resolutions and counter-resolutions, proposals, petitions and motions, speeches and writings, pamphlets and books. But we are still far from having, as the result of a clear and comprehensive survey of the whole of this material, a complete theory of Labour Protection; for the political problems of Labour Protection, especially those touching the so-called Maximum Working Day and the organisation of protection, are more hotly disputed than ever. In spite of the valuable and careful articles on Labour Protection, in the Encyclopædia, of von Schönberg and of Conrad, with their wealth of literary illustration, in spite of the latest writings of Hitze,1 which, for moderation and clearness, vigour of thought, and wealth of material, cannot be too highly commended, there still remains much scientific work to be done. I myself have actually undertaken a thorough examination of all this literary and legislative material, in view of the national and international efforts of to-day towards the progressive development of Labour Protection, with the result that I am firmly convinced that both Theory and Policy of Labour Protection are still deficient at several points, and in fact that we are far from having placed on a scientific footing the dogmatic basis of the whole matter.
We have not yet a sufficiently exact definition of the meaning of Labour Protection, nor a clear distinction between Labour Protection and the other forms of State-aids to Labour, as well as of other aids outside the action of the State.
We have not a satisfactory classification of the different forms of Labour Protection itself with reference to its aim and scope, organisation and methods.
We still lack – and it was seriously lacking at the Labour Conference at Berlin – a fundamental agreement as to the grounds on which Labour Protection is justified, its relation to freedom of contract, and the advisability of extending it to adults.
The discussion is far from being complete, not only with reference to the real problems of Labour Protection, but also and especially with reference to the organs, methods and course of its administration. Many proposals lie before us, some of which are open to objection and some even highly questionable.
But we find scarcely any who advocate the simplification and cheapening of this organisation in connection with the systematised collective organisation of all matters pertaining to labour, together with the separation, as far as possible, of such organisation from the regular administrative organs.
The proposals of Social Democracy with respect to “Labour-boards” and “Labour-chambers,” are hardly known in wider circles, and have nowhere received the attention to which in my opinion they are entitled.
The proposed legislation for the protection of labour offers therefore a wide field for careful and scientific investigation. I have prepared the following pages as a contribution to this task.
CHAPTER I.
DEFINITION OF LABOUR PROTECTION
The meaning of the term Labour Protection admits of an extension far beyond the narrow and precise limits which prevailing usage has assigned to it, and beyond the sphere of analogous questions actually dealt with by protective legislation.
In its most general meaning the term comprises all conceivable protection of every kind of labour: protection of all labour – even for the self-supporting, independent worker; protection in service-relations, and beyond this, protection against all dangers and disadvantages arising from the economic weakness of the position of the wage-labourer; protection of all, not merely of industrial wage-labourers; protection not by the State alone, but also by non-political organs; the ancient common protection exercised through the ordinary course of justice and towards all citizens, and thus towards labourers among the rest. All this so far as the actual word is concerned may be included in the term Labour Protection.
But to use it in this sense would be to incur the risk of falling into a hopeless confusion as to the questions which lie within the scope of actual Labour Protection, and of running an endless tilt against fanciful exaggerations of Labour Protection.
The term Labour Protection, according to prevailing usage and according to the aim of the practical efforts now being made to realise it, has a much narrower meaning, and this it is which we must strictly define and adhere to if we wish to avoid error and misconception. Our first task shall be to determine this stricter definition; and here we find ourselves confronted by a series of limitations.
(1) Labour Protection signifies only protection against the special dangers arising out of service-relations, out of the personal and economic dependence of the wage-labourer on the employer.
Labour Protection does not apply therefore to independent workers: to farmers or masters of handicrafts, to independent workers in the fine arts and liberal professions. Labour Protection applies merely to wage-labourers.
For this reason Labour Protection has no connection with any aids to labour, beyond the limits of protection against the employer in service-relations; it has nothing to do with any attempts to ward off and remedy distress of all kinds, and otherwise to provide for the general welfare of the working classes; its scope does not extend to provisions for meeting distress caused by incapacity for work, or want of work, i. e. Labour Insurance, nor to the prevention and settlement of strikes, nor to improved methods of labour-intelligence, nor to precautions against disturbances of production or protection against the consequences of poverty by various methods of public and private charity, savings-banks, public health-regulations, inspection of food, and suppression of usury by common law. Although these are mainly or principally concerned with labourers, and are attempts to protect them from want, yet they are not to be included in Labour Protection in its strict sense. For this, as we have seen, includes only those measures and regulations designed to protect the wage-labourer in his special relations of dependence on his employer.
And indeed we must draw the limit still closer, and apply the word only to the relations between certain defined wage-earners and certain defined employers. Measures which are designed to protect the entire labouring class or the whole of industry, do not, strictly speaking, belong to the category of Labour Protection. Neither can we apply the term to that protection which workmen and employers alike should find against the recent abnormal development of prison competition, although by recommending this measure in their latest Industrial Rescript (the Auer Motion2) the Social Democrats by a skilful move have won the applause of small employers especially. For the same reason we do not include protection by criminal law against the coercion of non-strikers by strikers, exercised through personal violence, intimidation or abuse; these are measures to preserve freedom of contract, but they have no connection with the relations of certain defined wage-earners to certain defined employers. Furthermore, Labour Protection does not include preservation of the rights of unions, and of freedom to combine for the purpose of raising wages, except or only in so far as particular employers, singly or in concert, by means of moral pressure or otherwise, seek to endanger the rights of particular wage-earners in this respect. It is almost unnecessary to add that Labour Protection does not include the “protection of national labour” against foreign labourers and employers, by means of protective duties, for this is obviously not protection against dangers arising from the service relations between certain defined wage-earners and employers.
But although none of these measures of security that we have enumerated are to be included in Labour Protection, we must on the other hand guard against mistaken limitations of the term. It would be a mistaken limitation to include only security against material economic dangers in and arising from the relations of dependence, and to exclude moral and personal safeguards in these relations – protection of learning and instruction, of education, morality and religion, in a word the complete protection of family life.
Labour Protection does not indeed include the whole moral and personal security of the wage-earner, but it does include it, and includes it fully and entirely, in so far as the dangers which threaten this security arise out of the condition of dependence of the worker either within or beyond the limits of his business. The whole scope of Labour Protection embraces all claims for security against inhumane treatment in service-relations, treatment of the labourer “as a common tool,” in the words of Pope Leo XIII.
(2) Labour Protection does not include the free self-help of the worker, nor free mutual help, but only a part (cf. 3) of the protection afforded to wage-earners by the State, if necessary in co-operation with voluntary effort.
Labour Protection in its modern form is only the outcome of a very old and on the whole far more important kind of Labour Protection, in the widest sense of the term, which far from abolishing the old forms of self-help and mutual help, actually presupposes them, strengthens, ensures and supplements them wherever the more recent developments of national industry render this necessary. Labour Protection, properly so called, only steps in when self-help and mutual help, supplemented by ordinary State protection, fail to meet the exigencies of the situation, whether momentarily and on account of special circumstances, or by the necessities of the case.
This second far-reaching limitation of the meaning needs a little further explanation.
Labour Protection in its more extended sense always meant and must still mean, first and foremost, self-help of the workers themselves; in part, individual self-help to guard against the dangers of service, in part, united self-help by means of the class organisation of trades-unions.
Side by side with this self-help there has long existed a comprehensive system of free mutual help.
This assumes the form of family protection exercised by relations and guardians against harsh employers, and by the father, brother, etc., in their relation of employers in family industries; also the somewhat similar form of patriarchal protection extended by the employer to his workpeople.
Furthermore it includes that protection afforded by the pressure of religion, the common conscience or public opinion upon the consciences of employers, acting partly through the organs of the press, clubs, and other vehicles of expression, as well as through non-political public institutions, and corporate bodies of various kinds, especially and more directly through the Church, and also indirectly through the schools.
Without family and patriarchal protection, without the protection afforded by civil morality and religious sentiment, Labour Protection, in its strict sense, working through the State alone, would be able to effect little.
Family and patriarchal protection outweigh therefore in importance all more modern forms of Labour Protection, and will always continue to be the most efficacious. The protection of the Church has always been powerful from the earliest times.
Self-help and mutual help, moral and religious, effect much that State-protection could not in general effect, and therefore it is not to be supposed that they could be dispensed with. But they must not be included in Labour Protection, strictly so called, for this only includes protection of labour by the State, and indeed only a part even of this (cf. 3).
(3) For instance, Labour Protection does not include all judicial and administrative protection extended by the State to the wage-labourer, but only such special or extraordinary protection as is directed against the dangers arising from service relations, and is administered through special, extraordinary organs, judicial, legislative and representative. This special protection has become necessary through the development of the factory system with its merciless exploitation of wage-labour, and through the weakening of the patriarchal relations in workshops and in handicrafts. In this respect Labour Protection is the special modern development of the protection of labour by the State.
Labourers and employers alike are guaranteed an extensive protection of life, health, morality, freedom, education, culture, and so on, by the ordinary protective agencies of justice and of police, exercised impartially towards all citizens, and claimed by all as their right. Long before there was any talk of Labour Protection, in the modern sense of the term, this kind of protection existed for wage-labour as against employers. But in the strict sense of the term Labour Protection includes only the special protection which extends beyond this ordinary sphere, the special exercise of State activity on behalf of labourers.
Even where this extraordinary or special Labour Protection is exercised by the regular administrative and judicial authorities, it still takes the form of special regulations of private law, punitive and administrative, directed exclusively or mainly to the protection of labourers in their service-relations. To this extent, at any rate, it has a special and extraordinary character. Very frequently, as for instance in the German Industrial Code, such protection is placed in the hands of the ordinary administrative and judicial authorities, and a portion of it will continue to be so placed for some time to come.
But the administration of Labour Protection, properly so called, is tending steadily to shift its centre of gravity more and more towards special extraordinary organs. These organs are partly executive (hitherto State-regulated factory inspection and industrial courts of arbitration), but they are also partly representative; the latter may be appointed exclusively for this purpose, or they may also be utilized for other branches of work in the interests of the labourer and for the encouragement of national industry, and they bear in their organisation, or at least to some extent in their action, the character of public institutions.
(4) Labour Protection is essentially protection of industrial wage-labour, and excludes on the one hand the protection of agricultural workers and those engaged in forestry, as well as of domestic servants, and on the other hand, the protection of State officials and public servants.
It may no doubt be that special protection is also needed for non-industrial wage-labour and for domestic servants, but the material legal basis, the organisation and methods of procedure, of these further branches of Labour Protection, will demand a special constitution of their own. The regulations of domestic service and the Acts relating to State-service in Germany constitute indeed a kind of Labour Protection, certainly very incomplete, and quite distinct from the rest of Labour Protection, properly so-called. Even if the progress of the Social Democratic movement in this country were to bring on to the platform of practical politics the measure already demanded by the Social Democrats for the protection of agricultural industry3 on a large scale, even then protection of those engaged in agriculture and forestry would need to receive a special constitution, as regards the courts through which it would be administered, the dangers against which it would be directed, and its methods and course of administration. Whilst therefore we readily recognise that both protection of domestic servants and a far-reaching measure of agricultural Labour Protection, in the strict sense of the term, may eventually supervene, we yet maintain that this must be sharply distinguished for purposes of scientific, legislative, and administrative treatment from what we at present understand by Labour Protection.