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note i.: The Right of Association - Albert Venn Dicey, Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (LF ed.) [1917]

Edition used:

Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century, edited and with an Introduction by Richard VandeWetering (Indianapolis: Liberty Fund, 2008).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


note i.

The Right of Association

(See pp. 68–74, 109–113, 136–143, 189–193, ante;

Pic, Traité Élémentaire de Législation Industrielle, Les Lois Ouvrières (2nd ed.);

Hauriou, Prècis de Droit Administratif;

Trouillot and Chapsal, Du Contrat d’Association;

Loi 14–17, juin 1791 (Loi Chapelier);

Code Pénal, arts. 414–416; Loi 25 mai 1864; Loi 21 mars 1884; Loi 1erjuillet 1901.

See especially Duguit (Léon). Les Transformations du Droit Public (1913); Les Transformations Générales du Droit Privé (1912); L’État, Le Droit Objectif et la loi Positive (1901).)

(A)

The problem raised in every civilised country by the right of association.

Of the nature of the right of association and its peculiarities enough has been already said (pp. 109–113, ante).

The point to note is that at the present day its exercise raises difficulties in every civilised country. In England, as elsewhere, trade unions and strikes, or federations of employers and lock-outs; in Ireland, the boycotting by leagues and societies of any landlord, tenant, trader, or workman, bold enough to disobey their behests or break their laws; in the United States, the efforts of mercantile Trusts to create for themselves huge monopolies; in France, the real or alleged necessity of stringent legislation in order to keep religious communities (congrégations religieuses) under the control of the State—in almost every country, in short, some forms of association force upon public attention the practical difficulty of so regulating the right of association that its exercise may neither trench upon each citizen’s individual freedom nor shake the supreme authority of the State. The problem to be solved, either as a matter of theory or as a matter of practical necessity, is at bottom always and everywhere the same. How can the right of combined action be curtailed without depriving individual liberty of half its value; how can it be left unrestricted without destroying either the liberty of individual citizens, or the power of the Government? To see that this problem at the present day presents itself everywhere, and has nowhere received a quite satisfactory solution, is of importance. The fact suggests at least two conclusions: The one is, that the difficulty felt in England of dealing with our combination law arises, to a great extent, neither from the greediness of employers nor from the unreasonableness of workmen, but from the nature of things; the other is, that the most which can be achieved by way of bringing into harmony two essentially conflicting rights, namely, the right to individual freedom and the right of association, is to effect a rough compromise between them. Such a practical solution of a theoretically insolvable problem is sometimes possible. That this is so is proved by our existing law of libel. It is a rough compromise between the right of X to say or write what he chooses, and the right of A not to be injured in property or character by X’s free utterance of his opinions. The compromise is successful; it substantially allows freedom of discussion, and at the same time protects Englishmen against defamation.

(B)

Comparison between the development of the combination law in France and in England during the nineteenth century.

The expression “combination law,” though peculiar to the law of England, may conveniently be used as describing a particular part of French no less than of English law. It means the body of legal rules or principles which regulate the right of workmen, on the one side, to combine among themselves for the purpose of determining by agreement the terms on which, and especially the wages at which, they will work, or, in other words, sell their labour; and the right of masters, on the other side, to combine among themselves for the purpose of determining by agreement the terms on which, and especially the wages at which, they will engage workmen, or, in other words, purchase labour.

The development of the combination law in France and in England has been, during the nineteenth century, marked by curious similarities and differences. This will be seen to be so if we take the law of France and compare it with the law of England at different parts of the nineteenth century.

As to Similarities.

I. The combination law of France, no less than that of England, passed during the last century through three stages; these three stages of development in each country roughly correspond in character and in sequence, though not in date.

First Stage, 1800–1864. During this period trade combinations, whether temporary or permanent, either of men or of masters, were under the law of France unlawful, and the persons taking part in them were liable to punishment; a strike was a crime, a trade union (under which term we may include a combination of employers) was an unlawful association. (See Pic, pp. 185, 186, and 211–229; Hauriou, 5th ed. pp. 100, 101, and compare Hauriou, 3rd ed. pp. 155–158.) This was the effect of both revolutionary and Napoleonic legislation. In 1789 the National Assembly had dissolved all trade guilds, corporations, or unions. The Loi Chapelier, 14 juin 1791, imposed penalties on persons taking part—to use English expressions—in strikes or lock-outs, or becoming members of trade unions (see Pic, pp. 185, 186, 213). The Code Pénal, arts. 291, 292, prohibited all societies or associations of more than twenty persons (except mercantile partnerships) which were not authorised by the Government, and articles 414–416 punished with severe penalties combinations (coalitions) either of masters or of workmen; and the Code Pénal, though it did not come into force till 1810, more or less codified or represented the spirit of earlier revolutionary legislation. The combination law of France, moreover, was till 1849 not even nominally equal as between men and masters. It pressed heavily on combinations of workmen, and lightly on combinations of employers (see Code Pénal, arts. 414–416). In practice, a law which was felt to be oppressive by artisans was looked upon with favour by their employers. The law remained in substance unchanged till 1864; its severity as against workmen was increased during the reign of Louis Philippe (loi 10 avril 1834), and the law, though in 1849 it was so amended that combinations of workmen were placed nominally in exactly the same position as combinations of masters, still pressed with far greater severity on the employed than on employers.

The French combination law then from 1800 to 1864 bore, as regards its practical effect, a strong resemblance to the English combination law from 1800 to 1824 (see pp. 68–74, ante). Under French law it was impossible, under English law it was, to say the least, extremely difficult, for any workman to take part in a strike or to join a trade union without committing a crime. In France a trade union was an unlawful, in England it was at best a nonlawful association. In each country the combination law which prevailed there in the corresponding stage of its development originated in fact in legislation earlier than 1800. In each country enactments directly applying to combinations, whether of masters or of workmen, were supplemented by other parts of the law. Behind the combination law of France lay the extensive power conferred upon the Government (Code Pénal, arts. 291, 292) of refusing to authorise, or putting an end to the existence of whole classes of associations among which trade unions appear to have been included. Behind the English Combination Act of 1800 lay the law of conspiracy.

Second Stage, 1864–1884. The law of 1864 (loi 25 mai 1864) so amended the Code Pénal, arts. 414–416, as to make strikes lawful proceedings. The general effect of the law, with the details whereof we need not trouble ourselves, appears to have been this: Temporary combinations (coalitions) for the purpose of raising or lowering wages, or, as we should say, strikes or lock-outs, ceased to be punishable. On the other hand, various unlawful acts, such as acts of violence, assaults, menaces, or fraudulent manoeuvres, when done by any one for the purpose of maintaining a strike or lock-out, or generally interfering with the free exercise of a man’s business or work (exercice de l’industrie ou du travail) were made severely punishable, and the punishment was increased if these offences, e.g. an assault, were the result of a combination (plan concerté) (see Code Pénal, amended articles 414, 415), and the new crime was created of combining to interfere with the free exercise of a man’s business or work by the imposition of fines, prohibitions, and the like. No doubt the new crime might be committed as well by masters as by men, but it is obvious that the general effect of the amended law was to punish severely every unlawful act, and a good number of acts not in themselves unlawful, which interfered with free trade in labour. When we remember that a trade union still remained an unlawful society, the general result of the legislation of 1864 must have been that whilst a strike was no longer in itself an unlawful proceeding, it remained hardly possible to use any of the means which render a strike effective without a breach of the law, or, in other words, without the commission of a crime (Code Pénal, arts. 414–416, as amended by loi 25 mai 1864).

The general likeness between the French combination law of 1864 to 1884 and the English combination law of 1825 to 1875 (see pp. 136–143, ante) is patent. In each country the law was intended to establish free trade in labour. It allowed to masters and to men such an amount of combined action among themselves as the legislature deemed necessary for ensuring such freedom of trade. It punished severely various unlawful acts, e.g. assaults, menaces, etc., when used, speaking broadly, for the purpose of interfering with an individual’s right to carry on his business in such manner or to work on such terms as he pleased. It in effect limited the right of combination whenever it interfered with freedom of trade in labour. It was in each country a law which, though it did not make strikes unlawful, made it an extremely difficult matter to carry out an effective strike without the commission of crime. The likeness between the combination law of France and of England during the second stage of its development must indeed not be overpressed. No comparison can possibly be fair which does not take into account, among other considerations, the far greater power always possessed by a French than by an English Government. The authority of the Executive in France is even now not adequately realised by most Englishmen. All that can safely be asserted is that the French legislation of 1864 gave expression to ideas very similar to the beliefs which underlay the English Combination Act of 1825. It is at least a noticeable coincidence that Napoleon III., who in 1860, under the influence of Cobden, promoted free trade in goods, did, in fact, by the legislation of 1864, try to promote free trade in labour as understood by political economists.

Third Stage, 1884 to the end of the nineteenth century. The law of 1884 (loi du 21 mars 1884) includes much of what Englishmen understand by the combination law, but deals with a wider subject than the right of combination as exercised by employers or by workmen. Its object is to legalise all professional associations (syndicats professionnels)—that is, societies of whatever kind (not being trade partnerships, which have always been fully legal) for the promotion or the protection of the interest of any profession or trade (loi du 21 mars 1884, art. 3). It repeals, as regards all such professional associations, all earlier laws, e.g. Code Pénal, arts. 291–294, and 416, which might restrict their freedom of action. With the wider aspects of the law we are not concerned; what we need chiefly note is that trade unions, whether of masters or of men, come within the class of professional associations, and therefore profit by the law of 1884. The French combination law of to-day would appear, as far as an English lawyer can judge, to be much as follows: Strikes have been since 1864 in theory, and are now in practice, if properly conducted, entirely lawful proceedings. Trade unions are, like other professional associations (syndicats professionnels), lawful societies. The Code Pénal still punishes severely assaults, menaces, and the like, used as means for interfering with a man’s right to carry on his business or to work as he sees fit. The law, therefore, imposes heavy punishment upon conduct, which is illegal in itself, when used as a means for rendering a strike effective; but, otherwise, combinations between masters on the one side, or men on the other, for regulating the terms of the labour contract, are lawful, and a strike may be carried on without any necessity for breaking the law.

The likeness between the combination law of France since 1884 and the combination law of England since 1875 at once arrests attention. In France and in England the law is intended to allow to employers and employed as unlimited a right of combination as is compatible with the respect due to the freedom of individuals, whether masters or workmen. In each country strikes and lock-outs are lawful; in each country a trade union is a lawful society; in neither country does a trade union need for its legal existence the sanction of the Government. In each country masters and workmen stand, as regards their right to combine, on a complete equality; in each country the law allows combinations for the purpose of regulating the terms of the labour contract. Both in France and in England the law protects the liberty of individuals by imposing special penalties on any man guilty of certain unlawful acts, e.g. assault, intimidation, and the like, for the purpose of interfering with his neighbour’s freedom of action; in other words, the law of each country specially punishes acts of coercion likely to be committed in furtherance of a strike. (Compare Code Pénal, arts. 414, 415, and the Conspiracy and Protection of Property Act, 1875, s. 7.) The practical similarity between the combination law of each country is increased if we take into account the abolition, under modern French law, of restraints on the liberty of the press and on the right of public meeting which used to hamper attempts to carry out a strike, and if we at the same time remember that the celebrated law on associations (loi du 1erjuillet 1901) has very widely extended the right of association. We are naturally then led to the conclusion that the combination law of France and the combination law of England not only bear a great similarity to one another, but have at last reached exactly the same goal. This idea does not entirely harmonise with facts, but does contain a large element of truth.

II. In France as in England judicial legislation, or judicial interpretation which comes very near to legislation, modifies the combination law.

French Courts, it is true, are far less bound than our English tribunals by precedent, and different Courts will in France occasionally on one and the same question of principle pronounce inconsistent decisions. Still, French judges must from the nature of things interpret the law of 21st March 1884 in accordance with principle, and interpret it so as if possible to respect at once the rights of trade unions (syndicats) and the rights of individual masters or workmen. That they have tried to do this is manifest. It is also clear that they have had to deal with just the kind of questions which have perplexed our judges. They have been or may be called upon, to consider the questions whether a trade union can lawfully put on a black list, or boycott (mettre à l’index), a workman because he is not a member of a union; or, on the other hand, whether a master can lawfully discharge a workman because he is a member of a union? And French Courts apparently would in such cases at any rate protect individual freedom, and hold the action both of the union and of the employer to be unlawful, because it, in fact, interfered with the right of the workman to stand apart from, or to belong to, a trade union as he thought fit. Such decisions as these would greatly resemble in spirit some recent judgments pronounced by our Courts. What further appears to be clearly established in France is that in such cases the person aggrieved has a right of action for damages against the wrong-doer. (See Pic, pp. 232–235.)

III. Both in France and in England a severe combination law did not at any time fully attain its object.

Even during the first stage of the French combination law (1800–1864) trade combinations, certainly among employers, and in some cases among workmen, grew up and existed not only by the toleration, but with the approval of the Government. The administrative power of the Executive could do a good deal to mitigate the severity of the combination law, and it would rather seem that, at any rate during the second stage of the combination law (1864–1884), workmen, no less than employers, did in fact exercise the power of association with considerable freedom. To what extent this freedom may have been used, no English lawyer can pronounce with certainty. In England, at any rate, the severity of the combination law, even between 1800 and 1824–25, did not suppress the combined action of workmen. The Combination Act of 1825 certainly was not inconsistent with the existence both of trade unions and of strikes.

As to Differences.

I. At the beginning of the nineteenth century the combination law of France and the combination law of England, though they aimed at the same object, namely, the suppression of trade unions and strikes, rested upon essentially different principles.

The French combination law as it then existed was the work of men who were both lawyers and individualists. As lawyers they inherited from the traditions of the ancien régime the belief (characteristic of French law) that the right of association was dangerous to and ought to be strictly controlled by the authority of the state (Trouillot and Chapsal, Du Contrat d’Association, pp. 5–11). As individualists they were thoroughly imbued with the conviction, handed down to them by Turgot and other philosophic reformers, that corporations and, above all, trade guilds, and the like bodies, were hostile to the freedom and the interests of individuals, and that whilst the rights of individual citizens and the rights of the State deserve recognition, no account at all ought to be taken of the supposed interest or rights of corporate bodies (Pic, pp. 184–186, 211–213; Hauriou, pp. 100, 101). This conviction held by the lawyers who, either as revolutionary statesmen or as Napoleonic officials, remodelled the law of France, is well expressed in these sentences in the Report of Chapelier in favour of the law which bears his name.

“Il doit sans doute être permis à tous les citoyens de s’assembler; mais il ne doit pas être permis aux citoyens de certaines professions de s’assembler pour leurs prétendus intérêts communs. Il n’y a plus de corporation dans l’Etat. Il n’y a plus que l’intérêt particulier de chaque individu et l’intérêt général. Il n’est permis à personne d’inspirer aux citoyens un intérêt intermédiaire, de les séparer de la chose publique par un esprit de corporation.” [All citizens should enjoy the right of assembly, but citizens from certain professions who wish to congregate in support of claimed common interests should not be allowed to do so. There are no longer any guilds (corporations) in this nation. There is only each individual’s particular self-interest, and then the common interest. No one is permitted to rally the citizens to an intermediate cause, to distance them from the public interest by calling upon a guild spirit.]—Pic, Tràité Elémentaire de Législation, p. 212. [Editor’s note: The translation was added in the Liberty Fund edition.]

Hence, though the French combination law in its earliest stage treated strikes and trade unions with special severity, it nevertheless placed associations, whether temporary or permanent, either of masters or of workmen, in theory at least on the same footing as other professional societies (syndicats professionnels). All such societies were looked upon with jealousy or disapproval as intended to promote the interest of particular professions, and, therefore, presumably hostile to the interest of the public. The combination law of France, in short, though it no doubt pressed with special heaviness on such societies as trade unions, was, after all, inspired by a conviction that it was necessary to place strict limits on the general right of association. It thoroughly harmonised with French opinion of the day and with the general spirit of French law.

The authors of the Combination Act of 1800 were Tories. They were in no special sense individualists, but they accepted the ideas of the common law. From the common law they learned that men might lawfully combine together for the attainment of any object which was neither unlawful nor opposed to public interest; but from the common law they also learned that any combination in restraint of trade was opposed to the public interest, and might possibly make any man who took part in it a conspirator. They perceived, further, truly enough that a strike or a trade union did aim at the restraint of trade. They therefore, while by no means denying the common law right of Englishmen to combine together for any lawful purpose, passed an Act quite in harmony with the legislative opinion of the day, which aimed at the suppression of strikes and trade unions (see pp. 68–74, ante).

Hence, though the French combination law and the English combination law were at the early part of the nineteenth century equally severe, yet there has always been this difference between them. The French combination law has always rested on the general principle, till quite recently admitted by almost all Frenchmen, that the right of association ought to be very strictly controlled. Thus a trade union was treated as one of that large number of professional associations on all of which the Government ought to keep a watchful eye. The French combination law was severe, but it was hardly exceptional legislation. The English Combination Act of 1800, and to a certain extent the Combination Act of 1825, behind which (as already noted) stood the law of conspiracy, were specimens of exceptional legislation; for they rested on the idea that while all men ought in general to enjoy what one may term the right of association, yet that combinations of workmen and, in theory, of masters, since they tended towards the restraint of trade, ought to be the object of special watchfulness on the part of the Government, and generally to be the subject of special and peculiar legislation. Thus the combination law of England was opposed to the general spirit of the common law, and had from the first the defects which inevitably attach to all law-making of an exceptional character.

II. Till 1884 the existence of trade unions lay in France at the mercy of the Government (see Code Pénal, arts. 292–294). In England, even in 1800, the members of trade unions might be liable to punishment under the Combination Act of 1800, or under the law of conspiracy, and a trade union which was certainly a non-lawful, was possibly an unlawful society, but it could not be dissolved at the will of the Government. English workmen, like all other Englishmen, fell under the rule of law, not of arbitrary power.

III. The existing combination law of France differs in character from the existing combination law of England.

A comparison, no doubt, of the French law of 1884 (loi 21 mars 1884) with the Combination Act of 1875 and the Trade Union Acts 1871 and 1876 (see pp. 189–193, ante) suggests, as already pointed out, that the combination laws of France and of England are now of a fundamentally similar character. But this idea is erroneous, and leads us to overlook an essential difference which may be thus stated: The right of association has in France under the law of 1884 and the law of 1901, as well as under other laws, been vastly extended. By these changes trade combinations, whether in the shape of strikes or trade unions, have been made thoroughly legal; they have profited and were intended to profit by changes in the general law of the land which have favoured every kind of combined action. But trade combinations are not in France regulated by exceptional legislation. A trade union is a lawful society, but it is so in virtue not of any special legislation or of any special privilege, but because it falls within the body of professional associations, the position whereof is regulated by the loi du 21 mars 1884. In England, on the other hand, though as in France a strike is a lawful proceeding and a trade union is a lawful society, the position of men on strike and of a trade union is still to a certain extent exceptional. Thus a combination to do an act in contemplation or furtherance of a trade dispute between employers and workmen may escape from criminality, where a combination to do the same act for some other purpose may be a crime, and a trade union itself, though a legal society, stands in some respects in an exceptional situation (see pp. 189–193, ante). England has still a special combination law, whilst trade combinations are in France governed entirely, or all but entirely, by the general law of the land. The cause of this difference is seemingly to be found in a fact to which attention has already been directed. The law of France was at the beginning of the nineteenth century as much opposed as was the law of England to trade combinations, and in truth was more severe, but it was not in strictness exceptional legislation. The law of England in regard to trade combinations was not only severe but was also exceptional. The result is curious. The feeling has grown up in England which has apparently not grown up in France, that trade combinations for the regulation of labour must be treated exceptionally. Severity has given place to favouritism: the denial of equality has by a natural reaction led to the concession of, and promoted the demand for, privilege.