MIA > Archive > Austin Lewis
Source: From International Socialist Review, Vol. 11 No. 3, September 1910, pp. 151–154.
Transcription: Matthew Siegfried.
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AS for the Injunction there is “much talk about it and about” and no definite conclusion among the talkers. It could not be otherwise. The Injunction is a concrete fact, and, as such, cannot be got rid of by any amount of talking. One may walk about it and tell the towers thereof, and saving an accumulation of technical and, for the most part, worth less knowledge, there is nothing gained thereby. The Injunction in spite of all analysis still remains a very present enemy and obstacle to the labor movement.
Clarence Darrow recently disposed of the question rather tersely when he said “In a labor case it depends altogether upon the point of view of the judge. If the judges are your friends, you will get favorable decisions.” This reduces decision to a mere matter of prejudice. And so it is, where there is a great economic struggle pending - prejudice plus economic interest. The two combined are the factors in interpreting the law as between a possessory and a revolutionary class.
And since the possession of the means of declaring what is law is the most cherished prerogative of power as indeed it is the best evidence of the possession of that power, it is obvious that before we can get working class law, we must have judges who have the working-class point of view, and that implies a considerable advance upon anything which looms before us in the immediate future.
Lawyers and others who are enamored of abstract legal ideas have fulminated against the use of the Injunction in labor disputes upon several grounds. They con tend that the Injunction is an equitable remedy to be employed by the chancellor in order to prevent a person suffering an irreparable injury, for which there is no remedy at law; that to employ the in junction in cases where there is no legal transgression is bad law and leads to tyranny, as is also the use of the injunction to prevent the commission of a public offense; that to punish for contempt for the violation of such an injunction is really the assumption by the judge of powers which do not belong to him and a denial of the fundamental right of trial by jury. No doubt, this is all very true. No doubt, the use of the injunction in labor disputes is a new departure, and not in accord with former practice. But, what of it?
No ruler ever yet failed to use a convenient legal remedy because it was new. No class battling for supremacy will ever hesitate to use any usable instrument to defend its interests or to aid itself in its aggressions. Now and again, it is true a ruling class, as in Spain, will fall back up on a barbaric and stupid method of reprisal which only brings contempt upon itself. Such acts, however, are evidence of unfitness and lack of sagacity, which is perhaps the reason why they have been more frequently favored by ecclesiastics than by other rulers.
The injunction labors under no such burden of archaism. It is not barbaric; on the contrary, it is very civilized. It is a weapon which could have been forged only in a highly developed country. It is a beautifully polished rapier with the cynical sneering light which plays on the surface of the weapon of refinement. It is clever, mocking and paradoxical. In a country which explicitly provides certain methods of trial for the accused, it sweeps them away without ceremony; it places the judge above the law; it punishes disobedience to illegal decisions with fine and imprisonment. It works quietly and securely. There is no ostentation about it. It has a Star Chamber method and a peculiar procedure, all its own.
Can one successfully attack such a remarkably clever invention by merely pointing out that it is unusual? Is it any argument to say that it does not conform to recognized legal standards? Will those who have promoted and those who profit by the use of the new machine discard it because it does not correspond with older models? To think so is absurd. You may attack the injunction with logic, knowledge, wit and eloquence; you may prove it tyrannical; you may even establish that it is ridiculous. But the injunction will persist as long as the class that finds it useful can safely use it.
The fact of its novelty is so much the greater testimony to the ingenuity and astuteness of the legal servants of the dominant class. To have overcome a whole system of law and to have wiped out a constitution, so far as the intent of that constitution goes, is an achievement which will place American jurists high in the heaven or deep in the abysm of legal distinction. The skill of American mechanism is again vindicated. We can make all sorts of machinery for the greater capitalism, even new legal machinery, warranted to work noiselessly, accurately and with speed.
But if the injunction is a machine, it has the inherent weakness of all machines, it must be driven by a man. Behind the injunction is the judge. And as a machine occasionally fails to operate correctly by reason of the failure of the nerves of the operator so even the injunction will not always be employed, when the nerve of the judge fails, when there is a very distinct manifestation against its employment. Thus, we see what while the injunction may be readily obtained and stringently enforced in some circumstances it can neither be so readily obtained nor so readily enforced in other localities, though the circumstances are practically the same. This it may be re marked is particularly true where strong labor organizations exist, if it is known that these labor organizations are in the habit of voting unitedly, and that their political stand is decisive of political success in the locality in question. In other words, the nerve of the mechanic operating the injunction machine responds to political pressure.
An ordinary judge is dependent upon politics for his livelihood and must take notice of political conditions and the variations in those conditions, even when he is writing opinions.
So far, the people who have demanded injunctions in labor disputes are also the controlling figures in politics. Though they remain in the background they still command the political situation.
It is for them that the conventions are held and the tickets arranged. In their hands rest the industrial and financial interests of the dominant class in the community. By reason of this fact, they are able to exercise their influence in politics and to control the judiciary. This must be so even where the judge himself does not recognize the fact, because his economic position is dependent upon those in control of the political situation and because, as Darrow points out, his associations give him a point of view antagonistic to that of labor.
These people who want injunctions are in control practically everywhere, and naturally as a rule succeed in getting what they want. This is the prerogative of political power.
But political power is dependent upon voting strength and that in turn depends upon the votes of individual men of whom a preponderating number are workingmen. Hence, when workingmen go into politics on their own account and complicate the situation, they render the political position of the judges more in secure and to that extent make the action of judges with regard to injunctions more uncertain.
Judges, at least those whose tenure of office depends upon success at the polls are divided in their allegiance and they tend to swerve away from the dominant class wherever the grasp of political pow er by that class becomes at all uncertain. This is only human, after all, for a judge is a lawyer who wants a job, and is very frequently not even a good lawyer, certainly not a first-rate lawyer, for in the latter case he would be much better off in a private practice.
When we come to the Federal judiciary, however, we are on other ground. These judges, holding office for life, and not dependent upon a popular vote are safely entrenched in the very citadel of capitalism. They cannot be dislodged, save by an overthrow of the present system. They sit in security and issue their injunctions protected by all the power of the greater capitalism. They have at their back and call “all the resources of civilization." Their mandates will be obeyed for their utterances are the declarations of the greater capitalism, the dicta of the industrial and financial overlords. In order to break the power of the injunction in the hands of the federal authorities nothing short of the complete over throw of the present political system will suffice.
But it has already become axiomatic among those socialists whose opinion is worth anything that political power is only the reflex of economic power and that a political victory which does not have behind it an economic support is for all practical purposes worthless, a flash in the pan, a momentary up flaring of popular discontent, such as has happened many times without producing any practical results.
Such a political overthrow as would result in the abolition of the injunction cannot be looked for unless there is an economic working-class movement of sufficient magnitude for the acquisition of political power and the keeping of it after it has been acquired.
In other words, the capitalist class will not surrender the use of the injunction in labor disputes as long as labor disputes exist, that is as long as the present system continues. It is a weapon with which it will not part and with which as a matter of fact it cannot afford to part.
So that all rhetoric and fiery denunciation directed against the injunction had just as well cease for this method of attack will produce no practical results. There is little benefit or dignity in shaking one’s fist and shouting at a fact. That sort of futility should be left to the insurgents and the populists.
Organization, effective labor organization on the industrial field is the great need of the hour. The injunction is effective only for the protection of scabs. Where there are no scabs or few scabs or insufficient scabs the injunction of course fails to achieve its purpose, it ceases to be effective. It is the business of the labor organization to reduce the number of scabs, to eliminate the scab in fact. In so far as this is not done, to that ex tent the labor organization does not affect its purpose.
In this respect it is plain to see that the old-fashioned trade union and craft organization is at fault. It fails to deal with what is called “unskilled labor” while the fact is that “unskilled labor” under the new conditions dominates the situation. This so far practically unorganized mass which has no interest in the present dominant form of trade organization is the preponderating factor. Its existence renders the injunction possible and for its protection the injunction is used. The first problem is obviously to get rid of the scab and that is essentially a trade union problem.
Again, another and more complete form of industrial organization is necessary. Industrial unionism must prevail, if the term were more closely defined and its content more accurately apprehended even by those who are most in the habit of using it. An organization which is as broad and deep and high as the industry itself and which can strike every part and department of an industry, which operates upon the mass and upon the molecules composing the mass leaves but little room for the employment of scabs and so little room for the use of the injunction.
It is thus that we find the real remedy for the injunction, thus and no other wise. The laboring class must by virtue of its organization prove itself capable of controlling the industry before it can control the industry and before the owner will give up the injunction. The naked truth is that the fight around the injunction is a fight determinative of victory for either side. The possession of the injunction enables the capitalist class to bring all the resources of the capitalist state against the workers, the loss of the injunction practically means to that class the loss of it position. Further, the destruction of the injunction as a weapon is dependent upon the extent to which the working class can organize and can marshal its forces.
In the meantime, what is to be done with the injunction while it is in actual operation, while it is a weapon in the hands of the enemy? That depends upon Socialism groups men, poor against rich, class against class, without taking into account the differences of race and language, and over and above the frontiers traced by history. We admit one war only: social war, the class war, the only war which at the present time, might bring some real profit to the exploited of all Countries. the circumstances of each separate case. As we have seen, the political action of the working class may in some instances be effective to prevent or to cripple its use. In other cases, there is only one course and that is to disobey the injunction. This of necessity implies the punishment always meted out to transgressors of the edicts of the ruling class. It implies a certain amount of suffering and of loss but it also implies a tremendous amount of agitation and of popular execration of the injunction and incidentally of the class in whose interest the injunction is employed. All this is of first-class importance to any revolutionary body for agitation is the very breath of life of the Revolution. Besides sooner or later the revolutionary working class must of very necessity come into collision with capitalistic law.
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