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THE MAKING OF LAW
THE SUPREME COURT AND LABOR LEGISLATION IN MEXICO, 1875–1931
By William J. Suarez-Potts
STANFORD UNIVERSITY PRESS
Copyright © 2012 Board of Trustees of the Leland Stanford Junior University
All right reserved.
ISBN: 978-0-8047-7551-9
Chapter One
The Rights of Free Labor, 1875–1910
INTRODUCTION
The constitution of 1857, with the civil and penal codes, largely comprised the law affecting labor relations in Mexico in the Porfirian era. Although in the early 1900s a few state governments began to introduce piecemeal social legislation while the federal government considered doing so, the constitution remained the main positive law for workers. The federal judiciary throughout the thirty-five years of Porfirismo recognized the freedom of labor guaranteed by the constitution, while the federal executive grudgingly acknowledged the right of workers to organize and strike implied in the 1857 document, even if in actuality government officials frequently sought to contain in de pen dent labor movements and sometimes repressed strikes when they jeopardized production. Further, liberal intellectuals and the artisan or working-class press couched language supportive of workers' interests with references to the constitution.
During Díaz's presidential terms (1877–80, 1884–1911) and Manuel González's (1880–84), the federal government promulgated a number of codes or statutes to facilitate investment in mining, commerce, and industry. Mexican government officials endeavored to use law to promote economic growth and the modernization of the country. The government reformed property rights so as to rationalize them and codified a number of areas of law to lower transaction costs for businesses disposed to invest and operate in Mexico—to overcome the perceived "obstacles to growth" that were the legacy of the ancien, colonial regime. A new mining code was adopted in 1884 and a commercial code in 1884, to name a couple of major projects (both codes were later amended). The federal government, however, did not deem it necessary in the late nineteenth century to pass legislation to regulate industrial relations. Initially, labor's challenge to industry and the government was largely dismissed, in ideological terms, by reference to laissez-faire principles. In one widely quoted instance, in 1892, Matías Romero (then minister of foreign relations and promoter of foreign investment in Mexico) replied to organized workers pleading for government intervention and aid in a dispute with their employers as follows:
The government has the law as its norm and justice as its aspiration. Given the institutions that govern us, it is unfeasible to restrict freedom of hiring or to intervene directly in the improvement of basic working conditions. No legal text authorizes ... the government to decree salaries, prices, or hours of work; our institutions based on the high principles of human liberty and respect for property prohibit the government from all direct interference in labor-management relations.... You invoke ... your right to work [freely].... Labor is subject by ineluctable natural phenomena to the law of supply and demand.
Workers did indeed invoke the right to work and the constitutional right of free labor. This chapter, therefore, first discusses the constitution and some of the debates about free labor of the delegates who drafted the constitution, before turning to an examination of relevant provisions of the civil and penal codes. The chapter concludes with a discussion of a symposium held in 1875 on the right to strike, during which speakers construed the constitution with the penal code to affirm the right of workers to strike peacefully. As the speakers insisted, both the constitution and codes could provide a basis on which to maintain the rights of free labor; the liberal ideology that prevailed among Mexicans under the Porfirian regime encompassed a vision of the free laborer, however compromised in practice workers' rights were by economic trends or business interests.
THE CONSTITUTION OF 1857 AND THE RIGHTS OF LABOR
The liberal constitution of February 5, 1857, emphasized individuals' rights—in connection with social institutions. The first article made the fundamental basis and object of social institutions the rights of man. Many of the other provisions in the first section concerned labor and the freedom of the worker and guaranteed his or her civil and political rights in universally applicable language. Article 2, banning slavery, the absolute, legal form of forced labor, declared that everybody in the republic was born free. Article 3 guaranteed the freedom of instruction. The fourth and fifth articles particularly focused on the freedom of labor (libertad de trabajo). Article 4 stated: "Every man is free to embrace the profession, industry or work that suits him, provided it is useful and honest; and to enjoy its fruits. Neither one nor the other can be impeded, except by judicial sentence when the individual has interfered with the rights of a third person, or by governmental resolution, dictated within the terms of the law, when society is offended."
Article 5, in its first sentence, contained the strongest statement of labor's rights: "No one can be obliged to furnish his work, without just compensation and his full consent." It was a radical assertion of the right of all workers to be free from any form of coercion. Indeed, the stipulation of just compensation went further than simply requiring that labor be voluntary. It raised the question of what could be fair compensation. In the mid-1870s, one jurist, José María Lozano, tried to grapple with the question; he answered it by applying rudimentary market notions. In any event, in the context of labor relations, the core of Article 5 was its proscription against involuntary labor. Combined with Article 17, which prohibited the imprisonment of anybody for a civil debt, the constitution precluded the use of incarceration to coerce anybody to work to repay a debt, including advanced wages. Together or separately, these two articles rendered any form of servitude, including debt peonage, unequivocally unconstitutional.
Other constitutional provisions affirmed civil and political rights for workers. Article 7 established freedom of the press. Article 9 ensured the right to associate and meet peacefully. Arguably, it could guarantee the right of labor associations to form and assemble. Article 11 guaranteed freedom of movement throughout the republic, as well as entering and leaving it. Binding workers to specific estates, or employees to their employers, was therefore unconstitutional. Articles 12 and 13 established the principle of equality before the law, the thirteenth by proscribing special courts and privileges or immunities for any social group, apart from military tribunals. Article 14 prohibited state authorities, including judges, from violating standards of due process or applying laws retroactively. Article 16 guaranteed the individual's right against unauthorized governmental action against his or her person, family, domicile, papers or possessions. Article 21 charged the judiciary exclusively with the application of penal sanctions. Administrative or political authorities could impose a correctional fine only to a maximum of 500 pesos or one month's sentence of detention. Articles 18, 19, 20, and 22 further guaranteed due process procedures in criminal matters. The federal judiciary and litigants cited these articles in cases against local authorities using the criminal process or detaining workers to press them to work for an employer. The delimitation of jurisdiction over criminal matters to specific state authorities, moreover, aimed to prevent private entities—hacendados (large landholders) and their overseers, for example—from operating private jails and applying corporal punishment to their workers, in a quasi-feudal manner.
Article 28 prohibited monopolies. Article 32 in part mandated the enactment of laws to improve the condition of working Mexicans. Article 34 granted citizenship to those with Mexican nationality who, as well as being of age, had an honest mode of living. Citizenship thereby was not predicated on property or any other privileged status but was related to productive activity. All Mexican workers could enjoy it and its benefits provided they had an honest occupation. This latter condition was not an incidental or rhetorical requirement. Many state laws earlier in the century had aimed to suppress vagrancy by obliging individuals to work for various employers, and vagrancy was understood as being the antithesis of having an honest mode of living. In the precursor to the constitution, the provisional, organic statute of 1856, a vagabond could lose citizenship rights. The constitution thus posited the individual as a free person with the right to work or engage in productive activity, against corporate privilege and political despotism. It was not a workers' charter, but its liberalism encompassed laborers and affirmed their equality with all other individuals in the nation's society and polity. The constitution affirmed an ideology to which workers recurred.
The signing of the 1857 constitution followed after prolonged debates in a convention that met for nearly a year, in the context of a looming civil war and finally foreign intervention. Liberals, divided between moderates and radicals (puros), drafted the document. Many of the debates concerned the relationship between the Catholic Church and the state, federalism, relations among the branches of government, and the institution of property. There were also broad and pointed discussions about the status of the nation's rural workers—its large, dependent, agricultural population and that population's relationship with large estates (haciendas or fincas). The record of the debates reveals the perception of radical delegates of an underlying social problem in the country and their attempts to remedy it within a framework of liberalism. For them, the monopoly privileges enjoyed by the Catholic Church and hacendados not only retarded economic and social progress but also oppressed and pauperized much of the country's population by sustaining servitude.
The debate over the first section of Article 5 reflected the tension between the right to be free from any form of coercion and the obligation to perform an agreed upon ser vice pursuant to a civil contract, which at least nominally structured rural labor relations; the debate thereby also reflected the underlying social reality of systems of servitude that still existed in parts of the country. One delegate, Juan Morales Ayala, insisted that Article 5 would authorize men to abandon their employment, violate their contracts, or refuse to complete the work to which they had agreed, since the remedy of monetary damages for breach of contract was illusory in the instance of indigent workers or artisans. In rebuttal, Ignacio Ramírez alluded to the peonage existent in the country: "money is advanced to day laborers [jornaleros], not to favor them, rather to enslave them.... One speaks of contracts between proprietors and day laborers, and such contracts are nothing more than a means to support slavery ... the debtor is sold to a creditor, something that happens in haciendas far from the capital and also in those which are very close." Ramírez, one of the more renowned liberal intellectuals of the nineteenth century, as well as later a supreme court justice, added: "If liberty is not to be an abstraction, if it is not to be a metaphysical entity, it is necessary that the fundamental code protect all the rights of the citizen, and that instead of one master, thousands of masters are not created who would traffic with the life and labor of the proletariat." The convention loudly applauded Ramírez. Guillermo Prieto, another major liberal intellectual, sought to avoid confusing the question of labor with civil law (i.e., the law of contracts or obligations), denounced the tyrannical hacendado, and insisted that the constitution should establish the rights of man, thereby distancing himself from Morales Ayala. Delegates divided closely over the categorical language of the first sentence of Article 5: the final vote to adopt it was 43 to 37. In contrast, the second sentence of the article, which dealt in particular with restrictions imposed in monasteries, monastic vows, and with an apprentice's subordination to his master, passed with a larger majority: 69 to 22.
As divisive as were the arguments regarding the prohibition of involuntary labor, the convention deliberated more over the original language of Article 4, which would have legally inhibited any curtailment of the free exercise labor by property holders. This would have impinged on the practices of hacendados. The convention eventually deleted the far-reaching language from the original article, initially introduced as Article 17.12 Before it did so Ignacio Vallarta, who would become an influential jurist and early ideologue of the Porfirisimo, articulated both the limits of law as a form of social legislation and the laborer's condition. He also said that the right to free labor (el derecho al trabajo libre) was a necessary requirement of man, "because it is an indispensable condition for the development of his person." And Vallarta acknowledged the exploitation of the master—whether factory or estate owner—of the laborer: "The master, the proprietor, the owner of primary resources, of the factory or of the estate where the worker exercises his industry, commit, there is no doubt, an abuse in obliging him to lend his ser vices in a mode that curtails his liberty." According to Vallarta, the constitution should guarantee the general right of free labor but not specific protections for workers. He acknowledged the promise of socialism, although he still grounded his analysis of appropriate constitutional language partly on a formally legalistic view and partly on the premise that the state should not interfere in market relations. It was quintessential liberalism, hesitant in the face of Ramírez's preoccupation with the social question. Yet Vallarta insisted that law need not be meaningless: "The law can indeed improve the fortune of the poor classes; and to this it should tend with all its force, removing impediments and obstacles, punishing abuses respecting free property as much as free labor, because in the ultimate analysis, labor is the only property of the poor, who do not have estates, factories or any other class of assets." This was a conclusion that liberal jurists and legally educated intellectuals, like Matías Romero, could uphold, at least nominally, under the Porfirian regime that ostensibly was a liberal state.
THE CIVIL AND PENAL CODES
Insofar as Mexico's civil codes addressed labor relations, they conceived of the employment relationship as a contract made between individuals. 16 As the principal statutory framework supposedly organizing social relations in civil society, this in itself was significant, and typical of nineteenth-century codes modeled on France's. Under the civil code, the essential element of a contract was that the parties agreed to it voluntarily; an employment contract was the expression of the wills of the individuals who committed themselves to the terms and conditions of the agreement in connection with the provision of ser vices by one individual to another. The introductory exposition of the federal district's code recognized that human beings were contracting for ser vices, not merely arranging for the letting of things, as the French code (and Roman law) normally conceived of the provision of labor. Thus, "nobody can lend a ser vice ... without employing his or her free will and exercising one of the faculties peculiar to man." The exposition added that perpetual contracts were void, in accord with the constitution. Also consistent with the constitutional right of free labor was the code's limitation of the remedy for the abandonment of employment (and breach of contract) exclusively to monetary damages. The employee might forfeit any wages not paid—but an employer could not force him or her to work, and complete the contractual obligation, even if it had been entered into voluntarily.
The code defined the various employment relationships between individuals. It contemplated four types of employment, those of domestic servants, day laborers (jornaleros), contractors, and apprentices. The legal drafters did not conceive of an abstract form of work or employment, such as the wage laborer per se. The codes were written before industrialization had progressed very far in Mexico. The civil code did require employees, such as servants and day laborers, to obey completely the employer unless the request contravened the law or contract; to discharge their ser vice loyally and with all the diligence commensurate with their abilities; and to care for things received while in ser vice, avoiding damage to them. The worker was responsible for the value of all entrusted instruments and objects, except when faultless for any damage or loss.
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Excerpted from THE MAKING OF LAW by William J. Suarez-Potts Copyright © 2012 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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