Don't Mention It: The Unacknowledged Tie between Religion and Labour Law

Abstract

Don’t Mention It: The Unacknowledged Tie between Religion and Labour Law Thomas C Kohler1 Religion is the capacity to face life triumphantly2 Introduction The unacknowledged tie between religion and labour law? How can that even constitute a topic? Everyone knows that wherever one looks, whether in civil or in common law systems, labour law arose in the early twentieth century. In both systems, this body of law represents the product of substantial legal ingenuity and innovation.3 In the words of the great legal scholar and historian, Franz Wieacker, labour law constitutes ‘one of the few indisputable achievements of our jurists’ in the last century.4 It stands as a response to a set of unprecedented but interrelated developments: the industrial revolution and the appearance of large-scale industry that replaced largely intramoenial patterns of what we later would refer to as employment, and which drew huge masses of workers from agricultural to industrial work, as well as to the rise of class consciousness among the resulting vulnerable and legally-defenceless working class that found its powerful expression in a pioneering social movement, what we know in the United States as the labour movement. Even in the United States, the intellectual and moral foundations for this movement largely sprung from the socialists and Marxist thinkers and activists. The movement challenged a sort of Manchester-style capitalism to its core and, if it failed to fully transform the reigning economic and political systems, it did substantially modify them. Religion, to the extent that it played any role whatever, represented the forces of opposition to labour, acting as a powerful counter-revolutionary tool ready to blunt the claims of workers. In a remark of which Marx famously made much use, Heinrich Heine observed in 1840 that religion, ‘pours sweet, soporific drops into mankind’s bitter cup, spiritual opium, a few drops of love, hope and faith!’5 Benumbed by promises of a better future in another world, the illusory assurances comforted otherwise hopeless people, keeping them Studies • volume 108 • number 432 411 Don’t Mention It: The Unacknowledged Tie between Religion and Labour Law docilely at their tasks and, if not contented with, at least quietly accepting of, their fate. Religion not only explained why the order existed as it did, but religion also guaranteed that quietly suffering and obedient workers, as the meek, ‘would inherit the world’6 – some day. Well, that account more or less represents what I read, heard and absorbed as a student. It does not, however, quite square with reality. That reality, in turn, represents a story far too dense and complex to treat in any depth here. Instead, I propose briefly to address three themes. To begin, I will sketch the character of a few of the typically unacknowledged ties between religion and labour law. I will then turn to consider briefly why those ties so often go unrecognized and how that fact conceals or distorts our understandings of the topic. While I will argue that religion has played an important, if largely unappreciated role in the development of labour law, it goes without saying that religion, at least in the forms we typically have thought of it, has a greatly diminished role in society. Even in the United States, described in a quote attributed to G K Chesterton as ‘a nation with the soul of a church’7 , the role of religion in public life has declined rather precipitously over the past fifteen to twenty years. In 2015, a Pew Research Center survey found that twenty-three per cent of Americans reported no religious affiliation, a substantial increase from 2007, when sixteen per cent reported themselves without such ties. Among millennials, that survey reported that thirty-five per cent identified with no religion – the so-called ‘nones’.8 Although I have no firm answers, I want to reflect a bit on what these trends might mean for the legal ordering of the employment relationship. Religion and labour law: a sketch of a little appreciated relationship Writing in 1933, just two years before the passage of the landmark National Labor Relations Act, which remains the basic labour law of the US, the economist and labour...