Conclusion  pp. 315-322


By Robert J. Steinfeld

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It is odd to think that the free wage labor of our imaginations, of no enforceable labor contracts, is a product of state regulation, but that is what a history of labor contract enforcement reveals. It is the product of a particular contracts policy that restricts both the remedies the law makes available to employers and the remedies it permits them to include in labor agreements. Before this restrictive contracts policy was adopted in England and the United States beginning in the last quarter of the nineteenth century, employers had available and were permitted to write into labor agreements a broader range of remedies. These made it possible to enforce labor contracts, compelling workers in many cases to perform the work they had promised to do. Employers regularly used these legal remedies to keep workers from leaving jobs without first giving notice and to punish them for misdemeanors at work.

I say it is odd to think of the free wage labor of our imaginations as a kind of regulatory constraint on contracts because we have become so accustomed to thinking of it as a kind of freedom from regulation. If pressed we might almost say that free wage labor arose spontaneously in free markets wherever a large population of the propertyless was available to work. We can believe these things because of several assumptions we continue to make about the history and development of wage labor.