| Reviews / Comptes Rendus | Labour/Le Travail, 53

Reviews / Comptes Rendus

Judy Fudge and Eric Tucker, Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900–1948 (Don Mills: Oxford University Press 2001).

LABOUR BEFORE THE LAW deserves a wide and appreciative readership. Fudge and Tucker offer compelling arguments about the increasing importance of the law to the lives and movements of workers and about the importance of labour relations generally to the contours of state formation in the first half of the 20th century. Labour Before the Law nicely blends published accounts, unpublished graduate manuscripts, and an impressive amount of original research. It ranges across the touchstones of labour history — yes, yet another account of the Industrial Disputes Investigation Act (IDIA) — to lesser-known but highly revealing events such as the 1937–38 strike of lime miners in Blubber Bay, British Columbia, all the while maintaining an admirable consistency in its analysis. Fudge and Tucker also convincingly demonstrate the descriptive power of a Marxist approach to the law itself.

In the tradition of the famous Industry and Humanity by Mackenzie King, Labour Before the Law is a long book, and will no doubt remind some readers of why their choice to avoid law school was the correct one. But if the detail is sometimes too densely packed, the story is nonetheless thought provoking. Fudge and Tucker begin their account with the rise of what they call "industrial voluntarism." The beginnings of the 20th century witnessed an aggressive campaign on the part of employers to use a combination of injunctions and criminal law provisions to limit the effectiveness of strikes and sympathy actions such as boycotts. British legal precedents, including the 1901 Taff Vale decision, enhanced the effectiveness of civil actions against unions. At the same time, the right of freedom of association was not enforced, undermining the notion of state neutrality in labour relations. Tucker and Fudge highlight the complexities of governmental intervention during this period: responsible for the application and enforcement of criminal law, municipal and provincial officials played a central role in the early years of the twentieth century, while federal officials focused on creating bureaucratic mechanisms of conciliation. Because of this division, unionists were only too aware that legislative victories, scant as they were, could be easily eroded by magistrates with liberal definitions of watching and besetting.

Labour Before the Law argues that the regime of industrial legality that emerged in the years before World War I combined accommodation and coercion, not as alternatives but as mutually reinforcing strategies. The passage of the IDIA meant that mandatory conciliation would become the preferred mechanism of the federal Department of Labour. At the same time, the IDIA served to increase the power of the judiciary. Injunctions continued to be a resort of employers looking to restrain union power, while magistrates frequently found themselves called upon to chair IDIA conciliation boards. Fudge and Tucker provide a succinct survey of the workings of the IDIA, drawing upon the work of Bob Russell and Jeremy Webber. In particular, they highlight the regional and occupational variations in the outcomes of the usage of the Act. Most important, they suggest that the IDIA met with "pragmatic acquiescence" rather than "normative acceptance." Unions continued to condemn the use of strikebreakers and restrictions on the right to picket, all the while recognizing that occasional victories could be won through federal intervention.

The chapter in Labour Before the Law on World War I is the book's weakest. It is short, and limited to events and policies that have been explored in detail by scholars such as Greg Kealey. At the same time, however, Fudge and Tucker should be commended for their valuable rethinking of the traditional chronology of labour history. Chapter Five covers the period from 1919 to 1925, challenging the traditional periodization that frames the labour revolt of 1919 in terms of wartime strife. Obviously, there is a great deal of wisdom in the traditional periodization: Order-in-Council government was one of the central grievances of the leftist radicals who briefly held sway over the labour movement in western Canada. As well, a host of other issues, from concerns with the rising cost of living to the resurgence of nativism, were inseparable from their wartime manifestations. Nonetheless, Labour Before the Law persuasively groups the battle for Winnipeg in 1919 with the fight for Cape Breton's coal mines in the early 1920s. Both dramatized the expansion of state coercion and the indelible markings of class relations on the character of industrial legality. Fudge and Tucker highlight the central contradiction of this period: while demonstrating its willingness to use coercion against so-called "irresponsible" unions, the federal government shied away from using similar measures against "irresponsible" employers who refused to recognize the instruments of collective bargaining devised by workers. Mountie batons would never be used in board rooms.

Tucker and Fudge also deftly explore provincial attempts to devise new regimes of industrial legality in the second half of the 1930s. These, however, fell far short of a Canadian version of the American Wagner Act. The most valuable contribution of Labour Before the Law is Chapter Ten, which covers the period from 1943 to 1948. This chapter should find its way onto many course syllabi alongside time-honoured accounts of the Japanese internment and "wartime jitters over femininity." These years witnessed a broad-based leftist renaissance, with organizing victories for the Congress of Industrial Organizations and electoral breakthroughs for the Co-operative Commonwealth Federation. In such a context, policies like PC 1003, which compelled bargaining, conciliation and arbitration, served to channel the labour movement into a new set of administrative procedures. True, these procedures owed much to previous legislation, such as the IDIA's tripartite board and the ban on strikes and lockouts during the investigation period. Taken together, however, the strands of PC 1003 demonstrated federal willingness to trade the recognition of "responsible" unions for industrial peace, although this new-found public legitimacy did not radically alter workplace relations.

Labour Before the Law persuasively argues for the continuing importance of local state officials to the regime of industrial legality promoted by the federal government. It also serves as a reminder not just that law in a liberal-capitalist society was shaped by class relations, but that its class-based dimensions were of fundamental importance. Just as important, this book is predicated upon conflict: there is not one hint of a Whiggish notion of linear progress in the account offered by Fudge and Tucker. This speaks, I think, to the context in which the book was written. If nothing else, the past ten years have revealed the very real limitations of industrial legality as a political strategy. Rights like collective bargaining, once thought to have been won once and for all, have now been demonstrated to be all too fleeting, subject to the political designs of neo-conservatives who would rewrite the basic protections afforded by the Rand decision.

Most important, Labour Before the Law lives up to the promise of its title. More than twenty years ago, Ian McKay used the pages of this journal to lament the seemingly never-ending expansion of the "Mackenzie King industry." While clearly immersed in the minutiae of King's legacy, Fudge and Tucker have, I believe, produced an account that rightly puts workers front and centre.


Todd McCallum Dalhousie University

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