In 1924 John R. Commons published _The Legal Foundations of Capitalism_. Commons argued that “[a] common law of labor is constructed by selecting the reasonable practices and rejecting the bad practices of labor, and by depriving both unions and management of arbitrary power over the job.” Commons referred here, I think, to collective bargaining agreements. He footnoted the article “Due Process of Law” by Malcolm Sharp, in the Commons edited collection _Industrial Government_. He added “Even statute law begins to add its part by imposing duties upon employers in the safeguarding of jobs against accidents, against sickness, against long hours, inadequate wages, and insecurity of employment (…) a constitution for industrial government is being constructed by removing cases from the prerogative of management and the arbitrary power of unions and subjecting the foremen, the superintendent and the business agents to the same due process of law as that which governs the laborers.” (312.) I don’t know if had other uses of the term, “due process of law”, but the phrase appeared in in his preface to _Industrial Government_. Commons, summarizing Sharp’s article, referred to a business which seemed best typified “as a struggle for power of organized capital and organized labor, resulting in an equilibrium which we named due process of law.” (vi.) Commons and Sharp may have used the term in other ways, but one sense of the term here is that due process of law is simply the name for a particular institutionalized equilibrium between employers and employees. Another sense of the term is that, for Commons and Sharp, the point of law in an employment context is to foster and maintain labor-capital equilibirum.

Commons suggested that in multiple historical periods we can find examples of “the evolution of customs and the formulation of customs into working rules by a government.” Commons argued that this process involved “a threefold expansion in the fields of economics, jurisprudence and politics.” (313.) Commons wrote than “The employee or agent, indeed, is not permitted to sell his physical body, which would carry with it all of his liberty, but he is permitted to sell his willingness to obey commands within certain limits. In this respect, he sells a part of his liberty, and submits to the will of the employer or principal. The terms on which he sells are a matter of persuasion or coercion, for he is free to sell or reject the offer, but, once accepted, the relation which he assumes is that of command and obedience.” (314.) Commons refers to “delegations of sovereign power” with regard to control over property and over persons. (319.) “Each concern is, indeed a government, employing its peculiar sanctions, and each individual holds a position or job in many governments. He is a citizen of the state, a principal, agent, employee, creditor, debtor of a business concern, a father, son, brother, fellow-communicant, comrade, and so on, of the various cultural concerns.” Commons added that “there emerges in all concerns, from primitive times to the present, the principles of a common purpose and a corresponding set of working rules holding the members together. Each concern has its different sanctions, but its enforcement of those sanctions in particular cases is in the hands of those who primarily exercise the functions of a judiciary.” (321.)


In his 1913 (?) _Labor and Administration_ Commons wrote that “[T]he legislature lays down the general rule that every employer shall furnish to his employees the necessary protection to life, health, safety, and welfare. This places the obligation upon the employer. He must maintain his place of employment and its premises so that the employee shall not incur the risk of accident. He must furnish safety devices and safeguards. He must adpot methos and process which shall be safe for the employees. But it is not left to the employer to tell what are those safe methods and processes, nor is it left to the factory inspectors. To the Industrial Commission is assigned the duty of investigating and ascertaining what safety devices and safeguards” (386.) If employers disputed a ruling of the commission, they could not raise the question of the commission’s authority in court: “Justices’ courts now cannot take up the question of the validity of the order. They are restricted to the question of the facts.” (388.) That is, the commission took up law. Commons argued that the commission ought to have the power to compel employees to follow workplace safety standards, writing that
“It is certainly reasonable, from the standpoint of workmen’s compensation, that employees shall take care of themselves and thus protext the employer in his new duties of protecting them.” (391.) [Note to self, read chapter 22 of this book closely.]