John R. Commons and the Moral Foundations of American Labor Law
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John R. Commons and the Moral Foundations of American Labor Law Jerome Braun 1 Accepted: 30 August 2020/ # Springer Science+Business Media, LLC, part of Springer Nature 2020
Abstract
John R. Commons’ Legal Foundations of Capitalism (1924) is relevant for American labor law because it represented in some ways the pinnacle of the Progressive Movement at the beginning of the twentieth century. Commons believed that markets were not automatically self-correcting so that workers would not necessarily be treated fairly. This view explains why he was a founder of institutional economics, as opposed to a supporter of neoclassical economics. Commons also discussed the limitations of the American legal system in favoring big business rather than labor unions. In this essay, I discuss Commons’ criticisms, supplemented by contemporary scholars’ work. In modern society, procedures are often understood better than the goals that they are meant to facilitate. This means that many writers in the Law and Economics field are no longer comfortable in conceptualizing how quantitative measures of value can be usefully combined with qualitative measures of value, resulting in justice. The ideas of John R. Commons as a founder of institutional economics are discussed as a remedy for this. Keywords Economic justice . Institutional economics . John R. commons . Labor law . Law and economics John R. Commons’ Legal Foundations of Capitalism (1924) is relevant for American labor law because it represented in some ways the pinnacle of the Progressive Movement at the beginning of the twentieth century. Because his ideas were nostalgic for a philosophy of law that put individual liberty on a pedestal, and believed that limited government is the prime political virtue, his ideas were already somewhat archaic even in his own time, because of social change that made these goals less feasible. Yet they are not only of historical interest. His ideas remain an alternative to relying only on Socialism and thus on the government for protecting workers. Commons also did not support the idea that markets were automatically
* Jerome Braun [email protected]
1
Department of Sociology - Visiting Scholar, Loyola University, Chicago, 1032 West Sheridan Road, Chicago, IL 60660, USA
Employee Responsibilities and Rights Journal
self-correcting so that workers would necessarily be treated fairly by employers. That is why he was a founder of institutional economics, and not a supporter of neoclassical economics. Commons also backed the idea that labor unions should intervene in the economy, so he had much to say not only about the limitations of classical economics, but about the confines of the American legal system as well. In his era politicians, and especially judges often favored big business rather than labor unions. Though Commons did not follow a Marxist approach in his analysis of social class structures, he supported traditional American notions about the possibility of potential conflict along social class lines. In fact, Britain and America were
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