without the law - professor arthurs and the early factory inspectorate

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Cardiff University

Without the Law? Professor Arthurs and the Early Factory InspectorateAuthor(s): Stewart FieldSource: Journal of Law and Society, Vol. 17, No. 4 (Winter, 1990), pp. 445-468Published by: Blackwell Publishing on behalf of Cardiff UniversityStable URL: http://www.jstor.org/stable/1409901

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JOURNALOFLAW AND SOCIETYVOLUME17,NUMBER4, WINTER 19900263-323X$3.00

Without he Law?ProfessorArthurs ndtheEarlyFactoryInspectorateSTEWARTFIELD*INTRODUCTION

Professor Arthurs's book, Without the Law,' is an important account of thevaried forms in which law regulated nineteenth century society. Thoughprimarily a historical work, it casts light upon a central debate in con-temporary sociological and legal thought, in that it provides a significantempirical contribution to the developing interest in legal forms amongstsociologists of law. Legal forms encompass the general structure,categories,and proceduresof law and legal institutions, rather than the specificcontent ofparticular aws. This interest,a directconsequenceof the inadequaciesof classinstrumental theories of legal development,2 has been dogged by problemsgenerated by the very high levels of abstraction at which much of the ensuinganalysis has been pitched. Thus, the veryabstractlinkagesmade, for example,by Pashukanis and Poulantzas3 between the 'commodity form of law' or'capitalistlaw' and the capitalistmode of production, have led to a tendencytosee legal forms in discrete sequential stages associated with particularhistorical periods, and to suggest crisis when two or more legal forms co-exist.4 In reaction to this, the need to examine the way differentforms of lawcomplement and/or conflict with each other has been recentlystressed.5It is here that Professor Arthurs makes a crucial contribution in demon-stratingthe continuing tension and conflict between competing legal forms innineteenth centuryEngland. On the one hand, he describes the persistenceofhighly discretionary 'special' courts based on local and trade customs oftenadministeredby amateurs (see chapters 2, 3, and 4). On the other hand, hepoints out the way that the central legal system became increasinglydominated by a 'legalist' ideology demanding adherence to liberal forms oflaw associated with Dicey.6 In a third movement, he traces the emergenceof'administrative aw', generated by the variedregulatory agencies that emergedin the years 1830 to 1870. This developing practice rejected wholesale the* Cardif Law School, PO Box 427, MuseumAvenue,CardiffCF1 1XD, WalesI am grateful to my colleague Clive Unsworth for helpful comments on an earlier draft of thispaper.

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liberalruleof law model and adopted flexibilityof form, based aroundbroad,discretionary,and mixed administrativepowers.The empiricaldemonstration of the albeit uneasy co-existence of differinglegal forms is important. But how do these formsinteract,and what part doesthe interplayof social interests and general social forces have in shaping thisinteraction?The purpose of this paper is to re-examine Arthurs'sportrayalofthis interaction, specifically the relationship between 'administrative law'(bureaucratic egal forms)and 'legalism' (Gesellschaftforms).To do this I willfocus upon a single regulatory agency, the factory inspectorate,andchangesinits legal form in the years 1833-50. My critiquewill not therefore, reflect theimpressive breadth of Arthurs's work. However, Arthurs himself returnsagain and again to the factory inspectorate's development as a pivotalmoment in the rethinkingof the relationshipbetween these legal forms.7Anyflaws in his analysis here are likely to reflectbroaderproblems.

LEGALISM AND ADMINISTRATIVE LAW: THE ARTHURS THESISThe form of law that Arthurs describes variously as 'legalism' or 'legalcentralism'is clearlyderived from traditional liberalnotions of the rule of law.Within this paradigm, great stress is placed on cleargeneralrules, limitationson the breadth of administrative discretion and the separation of powers.8Furthermore, it is said, administrative action should be subjected to twoexternal,controlling hierarchies. One is judicial scrutinythrough appeals andjudicial review. The other is ministerial scrutiny, in accordance with thedoctrine of individual ministerialresponsibility.The supposed effectsof thesechecks on discretion are the depersonalization and depoliticization of theadministration of law. Law is insulated from the play of contending interestsand ideologies.9'Administrative law' operated very differently. Arthurs argues that thenineteenth century saw the development of various forms of controls on theexercise of capital, a regulatory projectwith which he is broadly in sympathy.In seekingto develop this project,administrativeofficialsdeveloped new legalforms. These encompassed a range of techniques and methods'0 whichtypically involved administrators structuring and limiting their exercise ofpower by the use of norms developed internally, that is, by the officials andagencies themselves.Thus, the process was very differentfrom that envisagedby the rule-of-law ideal, where administrative action is closely circumscribedby external controls. Rejecting the separation of powers, administratorsopenly played the role of judges and legislators, accentuating the breadth oftheir discretion.These techniques and practices, however, were impugned, particularly bythe legal profession, as contrary to the hallowed presumptions of the rule oflaw ideology. The profession took great advantage of this. As clients of thevery owners of mines, factories, and railways that were being regulated, bycriticism they could advance their own material interest, both as the

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authoritativeinterpretersof law and in conjunction with the interests of theirclients. Rule of law ideology was thus used to promote legalistic administrat-ive forms which deprived the interventionist state of necessary regulatorymethods and procedures.'1 In response to these pressures (Arthurs argues)there was a general change in the legal form of administrative regulatoryagencies. There was widespread loss of quasi-legislative and quasi-judicialpowers and the imposition of orthodox notions of separation of powers,widespreadif gradualimposition of externallegal controls on administrators,and generallimitingof administrativediscretion.Theprimecausal influenceisascribed to the imperialismof lawyers and the power of their clients.

THE FACTORY INSPECTORATE AND CHANGING LEGAL FORMSThe factory inspectorate ought to be within the main line of this reshapingoflegal forms. Under the 1833 Act which created it, the inspectors were givenverybroad quasi-legislativeand quasi-judicialas well as purelyadministrativepowers.12 In addition, the constitutional structureof the inspectorate seemedto ensure that the control of politicians or other outsiders over theprocessesofpolicy-making and implementation was highly attenuated and ambiguous.There was little control of the inspectors or influence over them vested inHome Officecounsel or the Law Officersof the Crown or the Judiciary.Theinfluence of the higherjudiciary seemed to have been curtailed by section 41which severely restricted appeal against conviction or judicial review ofmagistrates' decisions. The influence of the Law Officers of the Crown ininterpretingthe Factory Acts was limitedby the inspectoral practiceof issuinginformal 'instructions' to the regulated as to the true meaning of the Act. Inaddition,theinspectorswerenot partof the normal Home Officehierarchy.Theyexercisedfunctions and powers vested by Parliamentin the office of inspectoritself. The King himself had the power to appoint the inspector under section17.LeonardHorner, one of the firstinspectors,commented in 1833 that it washis independenceand freedom from control that he firstnoticed.'3By 1850, however, the quasi-legislative and quasi-judicial powers to issueregulations and determine disputes had been removed. The Home Secretaryhad assumed a closer supervisionof policy formation, and factory regulationhas become subject to scrutiny from the higher courts.'4 Administrativeaction by the inspectors had also become subject to close scrutiny bygovernment lawyers. The independence of the inspectors had thus beenseverely curtailed, their discretion shaped by the external controls of legalrules, ministerialdiscretion, andjudicial and other lawyerly interpretation.Arthurs'sgeneralthesisappearsto offer a ready-made explanation for thosechanges. They can be seen as the imposition of the strait-jacketof legalism,primarilyat the behest of a hostile judiciary and legal profession, closely tiedto mill-owning interests, and antagonistic to regulatory intervention in themarket. The legal profession seems to offer a promising mediating agencybetween general social interests and ideologies and changes in concrete legal

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forms. If the abstractions of Poulantzas and Pashukanis lead to difficultyinanalysing the complex interaction between differentand perhaps competinglegal forms, then this analysis might appear to offer a potentially importantadvance at a more concrete level. But to what extent is this an empiricallyandconceptually adequate account of the way social interests and forces shapedthe legal forms of the factory inspectorate?

LEGAL PRACTITIONERS AND THE INSPECTORATEThe principal point of contact between inspectors and legal practitionerswasthrough their relationship with government lawyers, especially Home Officecounsel and the Law Officersof the Crown. The relationshiprevolved aroundlawyers' draftingof new legislation and interpretationof statutes,where therewas some perceivedambiguityin them. Arthurs sees this as a key social roleforlawyers, in which they could exercise great influence over developinginstitutional forms. This is a point at which lawyers, by stressingconventionallegalist attitudes, could thwart the new administrative regimes. Notsurprisingly,then, he portrays the relationship as an essentially antagonisticone. Administrators are said to resent theunhelpful draftingof lawyershostileto the policy of regulatorylegislation. The Law Officersare said to have beenhighly restrictive n theirinterpretationsof the Factory Acts, in contrast to theadministrators' expansive and purposive approach. The response ofadministrators was, according to Arthurs, to try to enforce the legislationwithout particular regardfor authoritativeinterpretation.The eventual closesupervision of the administratorsby Law Officers s said to be imposed: hey'pre-emptedNB]the administration s authoritativenterpreters f legislation'.1The trouble with this is that it is not borne out by detailed examination ofthe primaryhistorical materials.'6 Again and again inspectors responded toperceived difficulties in administering the Act by initiatingcontact with theLaw Officers and enabling them to play an apparently supervisory role inrelation to inspectors'activities. To understandthis, one needs to understandthe problems faced by the inspectorate in the 1830s and 1840s. As has oftenbeen made clear,'7 inspectors were continually faced by blatantly biasedinterpretations of the legislation by magistrates who were either themselvesmillownersor relatives or friends of millowners. One of the habitualresponsesof inspectors to acquittals or sentences that they perceived as unacceptablewas to secure the opinion of the Law Officersof the Crown, which they wouldthen use to influence themagistratesto adopt more favourableinterpretations.This can be extensivelyillustrated. At a meeting late in 1844,the inspectorswrote to the current Home Secretary, asking for the opinion of competentlegal authorityon a point in dispute. They asked particularlythat it should be'in such form as will carrywith it that weight of legal authority to which themagistrates would pay deference in adjudicatingupon cases brought beforethem'. Inspector Saunders made the same point in a reportin 1847: 'in all theprosecutions in my district, magistrates have paid a ready attention to

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competent legal opinion when fairly explained and submitted to them.'18I will argue later that this attitude to the Law Officersstemmed from theirapparent independence from the social conflicts over factory regulation andthe distinctiveness of their'lawyerly' authority. But, for the time being, I wantto confirm that this was a relationship promoted by the inspectors, notimposed upon them. In the summer of 1844, the Home Secretary(Sir JamesGraham) asked the inspectors to prepare an abstract of the newly passedFactory Act 1844, as they were required to do under section 28 of the Act.They wrote back declining, arguing that it:... should be prepared,and emanate from a source, the weight of whose authority wouldbe deferred to in questions arising with the interpretation of two Statutes. Thus whenprosecutions took place we should be able to refer to the abstract, as containing not ourinterpretationof the Law, but that which proceeds directly from the Law Advisers of theCrown, whereby much mis-construction will be avoided, and greater uniformity in thedecision of the Magistrates secured.

When Graham nevertheless instructedthem to preparethe abstract them-selves, theycomplied, but sent a letterto the Home Secretarywith theabstract,pointingout that sincethey had lost theirquasi-legislativepowers'no authorityattaches to the Abstract from its being prepared by us, as Inspectors ofFactories'. They asked for a careful revisonof the LawOfficers whose opinionwould be received as decisive on points of doubt and difficulty'.The abstractwas in the end sent to a barristernamed Elliot and revisions werenecessary.19Thisconcernfor 'authoritative nterpretation'was of long standing.In 1839,InspectorSaunderswas concerned by a widespread practiceby magistratesofmitigating penalties in cases where the evidence to justify mitigation was veryslight. He responded by seekingthe opinion of an eminent provincialcounsel,a Mr Marshall, on the proper construction of the relevant clause, and thensought to influence magistrates by quoting the opinion. In 1840, InspectorHowells asked for the Law Officers'opinion of a magistrates'decision on thetime within which notice of complaint under the Act had to be served. Againthe resultantopinion was used to influence subsequent decisions.20Ofteninspectorswereverymuch more keen to get the Law Officers nvolvedthan the Home Officewas to sanction this. In March 1851 Leicestermagistratesadopted a novel and restrictiveinterpretationof the term 'factory' as used inthe Factory Acts. Inspector Saunders said in a letter to the Home Secretary(April 1851) that this was contrary to all previous interpretations and askedfor the opinion of a 'competent legal authority'. This was denied him becausethe Home Secretary,Sir George Grey, thought the opinion unnecessary. ButSaunders was not preparedto leave it at that. He prosecutedthe masteragain,and when the magistrates acquitted again, reported their annoyance at notbeing furnished with an opinion from the Law Officers. Saunderscomplainedthat it must be obvious that his proceedings would be embarrassedby thesehostile decisions, and again requestedthe Law Officers'opinion.21Other examples could be given, but the general point is clear.22 Far fromdisassociatingthemselvesfromlawyers,a prime strategyfor securingregulationwas to promote contact. This is not a case of Crown lawyers pre-empting

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administrativenitiative,butratherbeinga prime ool in such nitiatives.This s not todeny hatCrownawyers doptedrestrictiventerpretationsfthe Act. Manyinstancesof such restrictivenessnd unhelpfulnessouldbegiven.23Itis rather oargue hatthedisadvantagesf suchrestrictivenessereoutweighedby significant dvantages.Whatmightthesebe?Whattheinspectors ontinually tress n theirrequestsorlegalopinion sthedistinctive uthorityhat awyerly pinionholds.Oneof theconsequencesof 'legalist'deology s apeculiar mphasis n the distinctivenessf the craftofthe lawyer,the differencebetween egal'andother formsof reasoning forexample,politicalor moralreasoning).Thisflows romaconceptionof lawinwhich egalrulesare assumed o be partof a clear,consistent,andin theory'gapless' ystem.Legalreasoningsthustobe carried utbya logicnotguidedby'external'nterest laims, odesofvalues,orpoliticalpolicies.This nvolvesthelogicalanalysis f meaning asedon distinctive riteria f interpretation.24Therelationship etween hispurportedmethodologicalutonomyandthestatusof lawyerss acomplexone.Weber mphasizedhestatus hatattachedtopure egalrationalityn theadvancing f lawyers' laims o socialauthorityover othercompetitors.25 vesDezalayhasrecently tressed hatoneof thesocialroles hat egalprofessionals lay (particularly1ite arristers)s simplyto statethelaw:

[i]nthe name of the authority they are recognized to possess, the latter state here ... thelegitimate interpretationof law and legitimate practices.26

Thus,becauseof thelawerly raft he LawOfficers admastered,heywereassumedto state THE LAW, in some neutral,non-partisan,and henceauthoritativeway.There are severalexamplesof the way factoryinspectorsexploitedthisduringwhathas come to be knownas the'relaycontroversy'. hisconcernedthe egalityofcertain ormsofshift-patterns,doptedbymillownersnthe ate1840s norder o lengthen headultworkingday.Most of theinspectorswereconvinced hatrelayswereillegal,butmagistrates efused o support hem.After severalrequests, he inspectorshad securedan opinionfromthe LawOfficers upportiveof their nterpretation.nspectorHornewrote to a firmwhichhadjustbeenacquitted, aying hat the decisionwascontraryo 'highlegalauthority':

I presumethat you will admit that thejoint opinion of the Attorney and Solicitor-Generalmust be of greaterauthority [thanthe decision of the magistrates]in the interpretationofan Act of Parliament.27Hornermadeit clear he would continue to prosecute hem,despitetheadverse decision of the magistrates.Legal opinion was used to validateHorner'sand otherinspectors'controversialand value-laden)decision tocontinueprosecution.The importance f lawyerlyauthoritycan be further llustrated. n early1848,a sub-inspectoruccessfullyprosecuteda manufactureror operatingrelays. But the magistratecomplained of the irrationalityand absurdityof thelaw, and attacked the sub-inspector's actions as harsh and dictatorial.

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Inspector Saundersdefended the decision to prosecute and demand stringentpenalties by saying that he had previously taken a lawyer's opinion on thedisputed point, which had been supportive of the inspectors' interpretation.He stressedthat the lawyerwas independent and unconnected with factories,and the opinion had been previously sent to the manufacturer. Theimplication was that themasterwas trulyculpablebecausehe had consciouslybrokena known rule. Themagistratewrote to the Home Secretary, sayingthatthis explanation had caused him to change his mind and now he felt thatSaundershad acted with 'considerable tolerance'.The intervention of the legalauthority of counsel had transformed an uncertain, irrational law into a pre-ordained, known rule of law in the eyes of an opponent and transformed hisview of the inspectors' behaviour. This did not always work, but the strategywas to suggest that inspectors worked within a structure of rulesdeterminedby autonomous legal actors.28This legitimating strategy would even be used against the Home Secretaryhimself. When he advised inspectors to stop prosecuting for relays underpressurefrommillowners,Hornerwrote back in polite but firmterms that thiswas tantamount to instructing inspectors not to enforce the law of the land,since the Law Officersclearly declared relays illegal. He demanded that if SirGeorge Grey (the Home Secretary)wanted him to do this he should state thisexplicitly, because Horner could 'not undertake any discretionary power'.This theme, that the Law Officers'opinion was effectivelyauthoritative on themeaning of the Act, is repeated again and again. Inspectorswould minimalizethe role of discretion and policy in theirdecision-making:

[t]hisprovision of the law being clear and unambiguous, it has been our duty to enforce itwith strict impartialitythroughout all the districts,without discussing the question whichhas been so much agitated of its policy or impolicy.Horner again:

[i]t being the sole object of the appointment of inspectors that they shall see to theobservance of the Factory Acts, and their powers being clearly defined by law [NB], Iought for every official act to have the warranteither of the law itself, or a clear definiteinstruction from the Secretaryof State.29The fact that early factory law was often a shifting, uncertain thing,susceptible to manipulation and reinterpretation,is glossed over. Historiansand sociologists have made clear the centrality of discretion and policy-making to the regulatory style of the early inspectorate.30 But decision-making is clearly not being presentedin this manner. The attraction of 6lite

governmentcounsel was their apparentauthority to find THE LAW. Even ifsometimes the law they found was not the law inspectors wanted, or evenperhaps because the law found was sometimes not what inspectors wanted,they conferred a certain legitimacy to administrative action. The relationshipbetween the factory inspectors and lawyers,both within the state and outsideit, was thus more complex than Arthurs'sportrayal would suggest.

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SUPERIOR COURTS AND THE INSPECTORATEAnalogous difficulties can be found with Arthurs's portrayal of the relation-ship between the superiorcourts and the inspectorate. Again, he suggests anantagonistic relationship. He argues that administrators generally rejectedjudicial review and appeal to superior courts because they felt review andappeal would be used to frustrate enforcement of the legislation. Heacknowledges that there were instances where some superiorcourt decisionslent legitimacy to administrative initiatives (p. 158) but argues that thepreponderanttrenddemonstratedjudicial hostility to the new interventionistphilosophy. By the 1850s there was a move toward review and appeal by thecourts, but the clearimplication is that this was the resultof the power of legalprofessionals, and theirpromotion of the orthodoxies of legalism.31

Again, on the surface, the Factory Acts appear illustrative. The 1833legislation had been largely designed by Edwin Chadwick, a state officialknown for his antipathy to superiorcourt review of administrative action.32Accordingly, section 42 had a broad privative clause. It prohibited judicialreview by certoriari or Bill of Advocation. It only allowed appeals in verylimited circumstances.33The scope for superior court intervention was thusinitially highly circumscribed. By 1844, however, an Act had been passedallowing appeals against any conviction for an offence punishable by ?3 ormore. By 1850 the first superior court case on the Factory Acts had beenheard,and sureenough, evidenthostility to the interventionist state had led toa highly restrictiveinterpretationof the Act, which effectivelyundermined itsefficiency.34Arthurs's portrayal of initial administrative sensitivity to the dangers ofappeal or review,followed by the imposition of hostilejudicial scrutiny,seemsattractive. But in fact, after 1844inspectorswerevery keen to extend the rightto appeal. By December 1847, inspectors were alreadyconvinced of the needfor a superior court ruling on any points of dispute.35They made extensiveefforts to get the disputed question of the legality of relays to a superiorcourtalthough the Act seemed to preclude it. In co-operation with Crown lawyersand a sympatheticprivatelawyer, they devised a numberof legal sophistriestodo so.36The point of this is that they were not afraid of judicial review or appeal.They thought it vital. They did not just sit back and accept judicialintervention:they created- indeed, manipulated - the opportunity. This is avery far cry from a strategy of disassociation. How can we explain this?

The restrictions on appeal had produced a vacuum of legal authority.Inspectors were confronted by rich and sophisticated regulatees, with thecultural and financialresources to use lawyersto challengethe Act, to render tambiguous, to construct loopholes in it.37 Once masters chose to test andprobe the limitations of the Factory Acts on a legal plane, to rejectadministrators' and their advisors' authority in interpretation, inspectorscould not avoid legal actors and institutions. They clearly realized that astrategy of avoidance of law would be highly dangerous. Once masters had452


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secured some acquittals before magistrates, even though other magistratesmight support the inspectors, the law had to be validated and made certain.This could not be done by the inspectors themselves. They needed theapparentdisinterestof the higher udiciary. 'Legalism'was thereforepromotedby the administrators.

THE LOSS OF QUASI-LEGISLATIVE AND QUASI-JUDICIALPOWERSUnder the Factory Act, 1833, section 18 enabled inspectors to create 'anyRules and Regulations necessaryfor the due Execution of the Act'. Section 34provided for the bringing of any criminal proceedings under the Acts beforeeither a magistrate or an inspector.38These appeared to be both crucialinnovations and crucial instances of defiance of the 'legalistic' orthodoxy ofseparation of powers. The quasi-judicial power seemed to hold out a way ofneutralizing the magisterial bias against interference with local middle-classinterests that had dogged enforcement of earlier Acts.39 Arthurs argues thatquasi-legislative powers were also crucial to 'administrativelaw'. They werethe means by which officialscould translatethe open-texturedlanguage of theregulatory legislation into detailed commands, thereby facilitating compli-ance.40 In addition, such powers enabled administrators to structureinternally the broad discretion given them by statute, and thus placeconstraints on arbitrariness n administration.Both the quasi-legislative and the quasi-judicial powers were removed bysection 2 of the Factory Act 1844. But even before this, these powers hadbecome closely circumscribed.In March 1837,the Home Officehad written tothe inspectors, telling them that they should not in the first instance use theirquasi-judicial power to hear cases themselves. They should only do so ifmagistratesfailedto decidecases on theirmerits.By 1839,the Home Officewasalready introducing bills that would remove the power altogether.41In 1836theHome Officehad asked the inspectorsto frame a singlecode of regulations.These were approved by both the Home Secretaryand the President of theBoard of Trade. Technically this was not required under the Act, but theimplication is surely that, in practical terms, the inspectors would not beallowed to change the regulationswithout approval fromcentralgovernment.The code of regulations was unchanged until the 1844 Act.42In actual fact, the inspectors had also developed a system of issuing'instructions'to relevant parties as to the requirementsof the Act. The legalnature of these instructionsseems to have beenimpreciselydefined.Theywerenot promulgated as formally as regulations, and seem to have existed in anambiguous area between overt rule-makingand creative 'clarification' of theAct. They had appeared to be a prime mechanism by which the inspectorscould usurpthe interpretativerole of legalpractitioners.In any event, a similarprocess of circumscriptionof this power took place. In March 1837,the HomeSecretary told inspectors not to issue any instructions until they had been

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submitted to the Law Officersfor approval.43Professor Arthurs'sexplanation of thesechangeswill be becoming familiar.The opponents of state intervention and thus regulatory legislation (in thiscase, millowners) recognized that derogation from administrative ad-judication and control of administrative rule-making would undermineeffective regulation. But self-interest spoke in the language of constitutionalimpropriety, of the insult to the sacred principles of separation of powers.Arthurs does not explicitly consider the aetiology of the loss of the factoryinspectorate's quasi-legislative powers, but he ascribes an immediate causalrole to the Law Officers n relation to restrictionsof the quasi-judicialpower.This, of course, squareswith his portrayalof the legal profession's role in thepromotion of 'legalist' forms. He argues that it was the Law Officers whoprevailed upon the Home Secretaryto requirethe factory inspectors to ceaseacting as magistrates. But the reference cited does not support him, leadingonly to a lettercontaining HomeOffice nstructions in relation to the exerciseofthese powers.44Thereis, however,clearempirical support for several elementsof his generalanalysis. Millowners hostile to the whole business of factory regulation wereprominentin constitutional critiqueof the inspectorate. Largemillowners likeR. H. Greg, HenryAshworth, and RichardBirleywereexplicitlycritical of thebreach of the principle of the separation of powers. The removal of quasi-judicial and quasi-legislative powers were key demands of the GeneralAssociation of Millowners in the late 1830s. There were anxious andprotractednegotiations between mill-owners and inspectors in the late 1830s,when redraftingof various Factory Bills took place. During this redrafting,proposals for the curtailing of quasi-legislative and quasi-judicial powersbegan to emerge.45On the surface,Arthurs'sexplanation of this in terms of pressureexertedbymillownerson a Home Officesympatheticto theiranxieties,but couched in theform of constitutional objection, seems attractive.But I want to suggest that itis inadequate in two ways.First, there was a clear internal dynamic to the process. What is striking,particularly in relation to quasi-judical powers, is the degree to whichinspectorsacquiescedin, supported,and even initiated the curtailmentof theirpowers. As early as 1834, Inspector Rickards was complaining of the delicateposition inspectors were placed in, as regardsthe quasi-judicial power. Theywere 'in the awkward position of being informant, witness and judge'. Sincethey also had quasi-legislativepowers 'they were not the properest judge thatcan be selected'.He thereforerecommended that thejudicial powersshould beexercised only in conjunction with a magistrate.46From the start, inspectorsseem to have been generally very loath to use these powers, even before 1837.After 1837, when they had been instructed to act as judge only whenmagistrateswere not hearingcases fairly, theydeclinedto do so even when thiswas clearly true. This requires some explanation: as Charles Hindley (aMember of Parliament and leading factory reformer) pointed out, theinspectors were allowing enforcement to be undermined without using the

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remedy explicitly given them for this purpose in the Act. The instrumentalflexibility provided by 'administrative law' was clearly being neglected. By1840 none of the factoryinspectorswerearguingfor the retention of thepowerto hear cases, and several were expressing anxiety about it.Similarly,one might have expectedwidespreadinspectoralresistance to theloss of quasi-legislative powers. And yet, in 1839, the inspectors expressedregretat the loss of a Government Factory Bill, specificallybecause it removedthese powers, and inserted the enforcement machinery into the Act itself.Again, the much-vaunted flexibility of 'administrative law' does not stopinspectors' support for moves towards 'legalist' legal forms.47This does not sit well with Professor Arthurs's view of the orthodoxy ofseparation of powers as something imposed on a reluctant inspectorate. Itmight be argued, however, that this is simply a matter of administrators'anticipating objection from the advocates of legalism. Indeed, there is somesupport for this. Horner said before the 1840 Select Committee that a primereason for this failureto use his quasi-judicial power was that he felt he wouldnot carry public opinion with him if he acted as both prosecutorandjudge. Inthe early 1830sHorner had defended quasi-legislative powers and it was onlyafter significantexposure to criticismby millowners that he began to supporttheirremoval.48But this sensitivity to criticism cannot be simply seen as a fearfulacknowledgement of the power of the legal profession and its millowningclients. The political constituency of 'legalism' in relation to the factoryinspectorate was much broader. The immediate cause of the Home Officedirectiveto inspectors to submit 'instructions' to the priorscrutinyof the LawOfficerswas a memorialby John Doherty, leaderof the cotton spinners'unionand secretary of the workers' Manchester Short-Time Committee.49 Incomplaining about one of Horner'sinstructions,he said that 'no such exerciseof arbitrary and unconstitutional power is recorded in the annals of theircountry'.He demanded that priorLawOfficerapprovalbe required.Fining onview (that is, inspectors'use of quasi-judicialpowers)was heavily criticizedbymill-operatives. Oastler and Bull, two Tory philanthropist supporters offactory reform, were trenchantly opposed to what they saw as theinspectorate'sunconstitutionalviolation of theseparationof powersdoctrine.Doherty's memorial of 1837 betrays the same preoccupation.However, to argue that the political constituency of legalism was broaderthan Arthurs suggests is not to argue it was a self-evident consensualorthodoxy implementedeverywhere.Arthurs's book itself (especiallychapter4) demonstrates the variety of constitutional forms possible within thenineteenth century regulatory state.50 Neither can it be said that inspectorsalways followed the path of 'legalist' constitutional rectitude. We have seenthat one of the prime targets of the inspectors was to use the views of theLaw Officers and the Home Secretary to 'influence' the magistracy. Whenmagistrates acquitted, they would be told that their views were contrary tothose of the Law Officers,and the Home Secretary.Various Home Secretarieswarned the inspectors of the constitutional impropriety of this, as an

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interference with the independence of the judiciary, but it remained acontinuing tactic.5' Inspectors' acquiescence in the loss of quasi-legislativeand quasi-judicial powers cannot therefore simply be the product of anacceptanceof 'legalism'as self-evidentlegal principle.What I will suggest, in asubsequentsection, is that the move towards 'legalism'in legal forms can onlybe understood, in both its internaldynamic (the impetus frominspectors)andits external dynamic (the impetus from civil society), if the relationshipbetween the legitimacyof law and state and the broader social conflicts of theperiod arebrought to the fore. A causal explanation limitedonly to the role ofthe legal profession and its powerful clientele does not grasp this broaderaspect.

DISCRETIONThese themes could be further exemplified. Arthurs stresses the utility ofvesting wide discretion in administrators,and thus its centrality to 'adminis-trative law'. This would suggest a model in which the rational factoryinspector, keen to produceefficientregulation,would seek a broad discretion-ary legislative mandate. Rather than encourage the emergence of detailedexternal control of discretion by legislative specificity,he would seek breadthas a prerequisiteto detailed internal control. But often the inspectors' actualattitude towards discretion was rather different. A constant theme was thatinspectoral and sub-inspectoral powers should be defined as precisely aspossible. Thus Horner and Saunders, in their evidence to the 1840 SelectCommittee on the Regulation of Factories, were keen to avoid being given ageneral power to order the boxing off of any machine they considereddangerous. They stressed the need to avoid broad, discretionary powers thatmight appear arbitrary.52In 1840 Horner proposed that inspectors or sub-inspectorsshould be given the power to cancel medicalcertificatesthatappear'improperly granted'. Before the 1840 select committee he was clearlyconcerned about presentingthis power, apologizing for 'whatmay seem to bean arbitraryproceeding'. He said he would propose its introduction only oncondition that there was provision for an appeal to petty sessions frominspectors'decisions. Similarly,Hornerwas highlyreluctant to accepta powerto reporton the generaltreatment of childrenin the mills. Horner stressedthedangers of giving too much power to the inspectors:he thought such a powerwould be inquisitorial." The inspectors clearly do not believe that theinstrumentalflexibilityof 'administrative aw'is necessarilya decisive factor inits favour.

THE FACTORY INSPECTORS AND LEGAL FORMSThis concrete analysis of changing legal forms suggests deficiencies inArthurs'sanalysis. In particularit suggests problems generatedby a focus on

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the functionalneeds (narrowlydefined)of administrativeregulation.Adminis-trators are said to promote 'administrative law' because of the increasedflexibilityand thus theeffectiveness t bringsto a regulation.But theinspectors'behaviourin advancing 'legalist' positions is inexplicablein these terms(giventhat most inspectorsgenuinely seem to have wanted to promote some form ofeffective regulation). In Arthurs's analysis, they are renouncing the effectiveinstruments of 'administrativelaw' for the false gods of the 'legalist' ideology.Furthermore, without some sense of the potential utility for the factoryinspectors themselvesof adopting 'rule of law' legal forms, great explanatoryweight has to be placed on the power of judges and the legal profession inaccounting for the movement toward these forms. As Nelken has put it 'for[Arthurs] hesource of thepowerof legalismlies in the powerof its sources:thelegal profession and thejudges'. But this implies that everybodyelse has beenmystified, hoodwinked by the cloak of tradition that the rule of law ideologyprovides. E. P. Thompson has been rightly suspicious of this implication.54There is a need to develop an explanation that does not implicitly dismiss theinspectors' and indeed the operatives' promotion of rule of law or 'legalist'forms in this way.

LEGAL FORMS AND THE POLITICAL CONTEXT OFINTERVENTION

In Arthurs'sanalysis, thereis a failure to considerlegal forms in relationto theperceivedlegitimacyof state activity.This is curious because one of the centralclaims of the liberalruleof law is that adherenceto its legal forms bringssomekind of legitimacy and authority to the rule of the state.55.This failureseemsto stem from Arthurs'sattitude towards the substantivepolicies implementedby the developing nineteenth-century regulatory state. This development,from the late 1830s, encompassed a range of initiatives from regulation ofmines and factories, the reform of public health and sanitation, localgovernment, prisons, and the development of education. These stateinterventions into social life represented a marked step away from theaggressiveliberallaissez-fairesocial policy of the 1820sand early 1830s,whichhad provoked widespreadunrest and rioting amongst sections of the workingclasses and the rural poor. Explanations and moral assessments of thesedevelopmentshave been the subjectof widespreaddebate amongst historians.Arthurs on the surface espouses agnosticism about the social impulsestowards regulation and ambivalence in his moral judgement: he argues thatthe reforms were neither 'intrinsicallybenignnor intrinsicallyoppressive'.Butthis explicit agnosticism and ambivalence does not generally permeate thebook. Thus, elsewhere, 'administrative law' is said to be about protectingconsumers, passengers, and workers, and to conflict with the aims of those(like the courts) 'solicitous only of property and its prerogatives'.Administrators are generally applauded for their 'greater impartiality andprofessionalism', and as a 'remarkable group of pioneers'. The protective,

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benevolent face of regulation tends to be stressed.56This, of course, has consequences for his analysis of criticism of thenineteenth-centuryregulatory project, which tends to be dismissed as self-interestedspecialpleadingfromthe powerful. But both the enforcementof thefactory acts and the broader regulatory projectwere subjectto much broaderopposition. Only by understandingthis can one understand the realproblemsof accountability posed by 'administrative law'. To understand the signific-ance of this, one needs to place the enforcement of the factory acts within apolitical context.During the 1830s and 1840sfactoryregulationwas an acutelycontroversial,political business. The factory operatives' short-time committees sawrestrictionof labour time as being at the heart of theireconomic and politicalstrategy.Their main economic strategywas to placecontrols on production sothat the relative bargaining power of masters and men would be radicallytransformed. This strategy would enable factory operatives to reassert thetraditionalcontrols of the artisanoverconditions of work. On the otherhand,cutting labour costs by extendinghours and reducing money-wage rates was akey management response to difficult marketconditions.5"In a narrowsense,factory regulation was thus at the sharp end of an as yet unresolved classstruggle. But the complexities do not end there, in that the inspectorsthemselveshad their own distinctive sense of thepolitical economy that shouldunderpin the enforcement of the Factory Acts. It is essential to consider theimpact on the factory inspectorate and its legal form of these competingperceptions of the broadernineteenth-centuryregulatoryproject.According to Arthurs, 'no one argues that proponents [of the regulatorystate]wereseekinga generaltransformation of society, the state or the law' (p.92). But this remark is based on a very partial coverage of the relevanthistorical texts. Foster, Richards, Carson, Corrigan, and Sayer, have all, invarious ways, argued just this point.58 Familiaritywith these radical socialistperspectives might well have led Arthurs to reconnect legal forms and thelegitimacy of state action more closely.These Marxist or neo-Marxist accounts see the development of theregulatory state from the late 1830s to early 1840s as a response to thewidespreadworking-class disaffection of the period.59It representeda moveaway from the aggressiveand suppressivesocial policy of the early 1830s to aperiod of 'liberalization'. Social reform, including increased controls on theexercise of capital, are seen as part of a broad-ranging hegemonic project,aimed at the re-educationof the workingclass into an acceptanceof the broadparametersof an industrialcapitalist society. Philip Corriganhas arguedthatthe political power of the state was crucial to this process, and yet one of therequiredreforms was that the state itself (and thereforelaw) should be seen ina different way, as an apparatus of 'neutral' institutions rather than aninstrument of a particularclass. Further,he arguesthat it was influentialstateservants who were a prime influence on those social policy changes.60It is obviously not possible within the bounds of this paper fully to defendthese views. However, there is significantevidence that factory inspectorsand

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indeed other servants of the state crucial to the emergence of factoryregulations, such as Chadwick and Ashley, saw factory regulation as such apotential means of re-education and incorporation. The regulatorystyleof theinspectoratewas informed by a clear sense of political economy, a sense not atall antithetical to continued capital accumulation. Martin has demonstratedthat Horner, the most influential of the inspectors, was clearly not againstprinciplesof capitalist political economy. It was 'bad' political economy (thatis, the unrestrainedpursuit of profit) that he opposed.61 Good workingconditions and education would be profitablein the end. Hornerrespondedtothe Plug Riots of 1842,in which there was extensive machinebreaking,andtheintense Chartist activity of 1838, by stressing the advantages that regulationand education could bring. It would strengthenthe 'justinfluence of propertyand education'. The instillingof 'moraland religiousprinciples'would reducethe danger that 'ignorant and excitable young men and women, similar tothose who constituted the late mob' might be seduced by agitators into'courses so dangerous to the community'. Factory regulation was seen ascrucial to this end.62Other inspectors shared these beliefs. Inspector Saunders stressed hissensitivity to the need for adequate profit making and the risks attendant onthe investment of capital. He stressed the 'great and increasing evils' of thefactory system which congregated together:

... withoutsufficientprotectionandcontrol,largemasses of careless and ignorant persons,among whom, as a class, crimeand debaucheryhave prevailedto an extent which at timesendangered, not only the very property these persons had assisted to create, but the verywelfare of the state, and the liberty and even lives of the well-orderedclasses of society.63[originalemphasis]Factory regulation was regardedas important to perceptions of the role ofthe state. Horner was convinced of the need for institutions that 'would beevidence to the humblerclasses of friendlydispositions and kind sympathy inthose above them'. Saunders stressed that if the operative felt that her or hisinterests had been consulted and protected, she or he would learn theimportanceof good order and be prepared,'under whatevercircumstances he[sic] may find himself [sic]', to respect the institutions of her or his country.Inspector Howell, justifying factory regulation in 1847, argued that thequiescence of the operative districts in a period of slump was due to a feelingthat it was not the result of class legislation.64The significanceof this is that such an incorporativestrategywas bound, inthe context of the politics of the period, to be controversial. There was no

agreement that this is what regulation should be about. Radical operativessaw it as the cutting-edgeof the 'Great Change'. Some millownerssaw it as anassault on vital principles of classical political economy. The inspectors'priorities in enforcement were thus unlikely to be readily and immediatelyaccepted. Their 'impartiality and professionalism' remained in doubt in the1830s.This scepticismreflectedbroaderworking-classsuspicion of law andstate inthe class conflicts of the period. John Doherty, leader of the cotton spinners'

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union, and Secretaryof the Manchester Short-Time Committee, repeatedlyargued that limitations of hours could not be effectivelyobtained by relianceon a middle-class state:[t]hewarbetweencapital' nd abour tillrageswithunabatedury .. capitalssupportedbyGovernment nd Law.Labourhasnothing o sustaint buttheenergies,wisdomandvirtue of its owners.'5

For Doherty, limitation of hours was best achieved by bargaining withemployers under threat of strike. In the early 1830s the language of working-class self-assertion was the language of self-enforcementof factory regulation- of working-classcontrol on production. If law had to be used, the short-timecommittee members tended to be most keen to resurrectthe old system ofcommon informers and privateprosecutions, which would keep enforcementin working-class hands. The Factory Act 1833 was denounced, not just forreflecting substantive priorities perceived as inimical to working-classinterests, but as creating a 'vermin of familiars' (that is, the inspectors) andunderminingself-enforcement. Thus the short-timecommitteesadvocated theappointment of working-class inspectors, and indeed at one point purportedto appoint their own. They also suggestedthat inspectorsshould be chosen byuniversalsuffrageamongst workers and masters.66Thus, the legitimacy of the factory inspectoratehad to be establishedin theface of potential class-specificalternatives for enforcement,which resteduponvery differentassumptions about the relationship between state, law, and thecitizen. Law was being experienced here not as a sacred object of passiverespect and obedience (THE LAW), as a 'neutral' institution, but rather asanother instrument of industrial struggle. It is conceived of as somethingactivated by partisan actors, rather than something to be enforced by'independent'and/or 'neutral'state servants.This view of law was confirmed by initial working-class experience ofinspectors' enforcement of the Factory Acts. Doherty, in a memorial to theHome Office,complained that the inspectors' administration of the law wasgiving the operatives the impression that:

.. justice,where hepoorareconcerned,snolonger ven-handed,ndthat ndeferenceto theunderstoodwishesof themoreopulentandthereforemore nfluential arties, helaw is inverynumerousnstances ervertedr abused.He said that extremedissatisfactionexisted amongst the operativeclasses, andthat the evidentclass bias was dangerousand alarming.He accused Hornerofaccommodating the millowners at the expense of the children's health,comfort, and education. He later called for Horner's dismissal. Before theSelectCommittee on Combinations, Doherty accused the inspectors of actingas the 'good friends' of the masters, and spreading lies about the unions.67There were widespread allegations of partiality against James Stuart, theScottish Factory Inspector.68Suggestions were made that this processwas, ormight become, part of a process by which confidencein the impartialityof thelaw was undermined.The reformer,R. S. Bull, suggestedthat what the peoplewanted was even-handed law:

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... the meeting had not forgotten that the Dorchester men wereyet abroad. ... He did notwonder, indeed, that the law should be held in so little respect.69It should be rememberedfurther that operatives had much to fear from theinspectors' exercise of their discretion. Many of the offences created by the1833Act were directedat the operativesthemselves.The practicesof InspectorStuart are revealing. He reported in 1840 that he found it was the spinnersthemselves who were most responsible for violations of the Act.70 If a childwas found working under a false age certificate, his general practice was tothreatenprosecution unless the masters dismissed the adult spinnerwho hadhired the child, ratherthan prosecute the master. Leaders from the spinners'union complained in the late 1830s that, because it was traditional for thespinner to employ the child piecer, and pay the child, the effect of Stuart'spractices was substantially to shift the burdens of the legislation onto the

operatives." By 1840 Stuarthad dismissed less than a dozen, but the effect hadbeen 'salutary'. The severity of such punishment when times were scarce isevident. Some operatives were 'almost starving for want' as a result. And itwas not simply Stuart'spractices that could have severeconsequences. Whentwo mothers of children were convicted for falsely testifying about the age oftheirchildren,at InspectorHorner'srequest,theirpunishmentwas 'restricted'to twenty-fourhours in prison. In 1844,Jane Flynn was prosecutedfor givingcurrencyto a forged certificateof age for her own daughter. Convicted, shewas imprisoned for seven days.72The result was that operativesas well as millownerswere worried about theexerciseof broad discretionby factory inspectors.It is all verywell for Arthursto argue that internal structuringof discretion by administrators themselvesensured that the exercise of state power was not arbitrary (p. 161). Theproblem remains that any system of accountability to internally-generatedstandards raises questions about the legitimacy of such a pedigree. Theseinternal standards cannot be seen simply as a technical working out of thespecifics of a general scheme, the underlying values of which have beendetermined by the legislature. The legislature itself contained highly contra-dictory attitudes to the purposes of regulation. Enforcement thus entailedtaking one of a range of available views of the social policy underpinningtheacts. When this is rememberedit is hardly surprisingthat purely internally-generatednorms lacked legitimacy.It is in this context that we must reassess the transformation of theinspectorate's legal forms and in particularthe internaldynamic provided bythe inspectors. Intervening in a site of acute class conflict, they were asvulnerableas any group to accusations of class bias and the promotion of theirown political priorities. The inspectorate therefore promoted a move to'legalist' forms, despite the possible instrumental difficulties posed by lessflexible legal forms and less administrative freedom of action. This must beseen as an attempt to respond to allegations of class bias by presentingdecision-makingas an essentially 'technical'process. It was representedas thenon-discretionary implementation of instructions and commands containedwithin legal rules or political directives determined elsewhere. The

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inspectorate presented themselves as subject to an external hierarchyof rulesboth legal (the terms of the Act as interpretedby lawyers, especially the LawOfficers)andpolitical (directivesfrom the Home Secretary).It seemsapparentthat the attraction of the Crown lawyers was their association with the'neutral' techniques of legal reasoning, apparently insulated from theimmediatepolicy needs of the administration. Their failure to see things froman administrator'sperspectivewas thus in parta sourceof strengthrather thanweakness. It enabled the inspectors to portray themselves as obeying anindependent ogic. Remember Horner's response to grave pressure from themillowners in the relay controversy:I declined to exercise a power of enforcing or not enforcing an important part of the lawaccording to my own discretion [NB], I showed every disposition to follow intructions[original emphasis]from the Secretaryof State. It being the sole objectof the appointmentof inspectors that they shall see to the observance of the Factory Acts, and their powersbeing clearlydefinedby law [NB]. I ought for everyofficial act to have the warrant eitherofthe law itself, or of a clear definite instruction from the Secretaryof State, issued at hisdiscretion and upon his responsibility[original emphasis].73

Hence, also, the close attachment to the independent legal authority of theLaw Officers, the desire to lose quasi-legislative and judicial powers whichmade explicit the rule-making capacity of the factory inspectorate and itsability autonomously to determine the meaning of factory regulation. Hence,also, their desire to limit their discretion and clearly define their powers. Thelaw is presentedas a direct, clear, controlling influence,and the inspectors aspassive, obedient, and self-effacing,the very model of 'legalist' propriety.Of course, this presentation glossed over many of the realities of thesituation. Inspectors retained very broad discretion, most obviously inrelation to the decision to prosecute. This discretion remained essentiallyunregulatedand continued to produce substantial variation in enforcementpractices between inspectors. It was thus in selective enforcement that theinspectors retained the most pervasive control of the moral and economicframework of factory regulation.'7 It was this selective enforcement thatenabled them in actual fact to qualify extensively the formal legal fencingprovisions of the 1844 Act until 1853, when the Home Office prompted fullenforcement. It was this discretion which enabled them to vary enforcementon the state of trade and the economic pressureon masters,and enabled themto takeprofitabilityinto account and to be aware(literally)of what the marketwould bear.'7 The shift to closer external control of inspectoral discretionmust be seen as partiallyreal, and as partially presentational, in the sense thatit sought to disguise the still extensive discretion in enforcement.

LEGAL FORMS, LEGITIMACY, AND SOCIAL CONFLICTWhat is the significanceof this detailed historicalaccount to the sociologists oflaw interestedin theforms of law?Why should we care about this nineteenth-centuryreconstitution of administrative forms? I have pointed out that much

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of the developing sociological literatureon this subjecthas beenconstructedatsuch a high level of abstraction that the contradictorynature of developmentsin legal forms has been obscured. Here we have seen the rise of 'legalist' legalforms, which are traditionally associated with the rise of laissez-faire andliberal capitalism, at a point of increasingstate intervention into the market.We see, too, that 'legalist' and 'administrative law' forms, with theircontrasting emphasis on rules and discretion, should be seen as part of acontinuum. Important externally unstructured discretions remained for theinspectorate.The move toward control by external rules was only everpartial.When combined with the evidence of Arthurs'sbook, that different forms oflaw co-existed during the nineteenth century and that some regulatoryagencies retainedbroad discretion and mixed quasi-legislative, quasi-judicialand administrative powers, this re-emphasizes the need to explore thecontingencies shaping legal forms at a much more concrete level.Furthermore,the factory inspectorate in the period 1830-50 ought to be ahighly significant point at which to analyse the relationship between generalsocial forces and concrete changes in legal forms. It is a period in which manyof the fundamental dilemmas of operating an urban industrial capitalistsociety come to the fore. In particular,it is a period when these dilemmas areopenly reflectedin the form(s)of legal regulation adopted. Factory regulationwas not only at the heart of the vital struggle between classes (and withinclasses) over the market economy, but it was also at the centre of thisreconstruction of law and state.76This study suggests that the move towardadministration based on rules determinedexternally, rather than by exerciseof unstructured or administrativelyself-structureddiscretion, was prompted,among other things, by vigorous working-class critique. This critiqueidentified the state as bound to bourgeois interests, and official discretion asshaped by class bias, and identified external control as a check on thisdiscretion: Arthurs rightly points out the constitutional objections made bymillowners and their lawyersin the name of the ruleof law to the flexibilityof'administrative aw'. But both millowners andfactory operativesexploited theinheritedlanguage of the free-bornEnglishman,with their talk of 'arbitrary','inquisitorial', and 'despotic' powers." This, to some extent this accountconfirms the general thrust of the arguments of E. P. Thompson and Hall etal.78that thedevelopmentof liberalruleof law forms(what Hall et al. describeas the 'autonomization' of law) stems from the social struggle betweenopposed social forces, and the importance to those strugglesof perceptions ofthe legitimacy of the state. Both stress the rule of law as a concession won byworking-class struggle and as therefore an expression of the strength ofworking-class movements. But this study also suggests the need to qualifysuch approaches.Factory regulation was the product of a conflict between organized andrelatively (though not equally) powerful groups over the appropriateaims ofgovernment, and especially the role of the market in capitalist economicrelationships. Crucial to the emergence of rule of law legal forms was somekind of balance between them. For the emergence of rule of law forms, the

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advocates of the free market had to be strong, but not too strong. If theopposition to the factory owners had been less powerful or incapable ofeffective organized protest, the administration of this area of social policymight well have remainedhighly discretionary.This had been true of the 1802Factory Act, under which 'visitors' were given broad powers and littleattendant structuringof their discretion in enforcing the Act. Such discretiondid not threaten the powerful interests of millowners, because the 'visitors'madeno attemptat effectiveregulation.Once the short-timeoperatives gainedthepolitical strengthand organization to get some kind of effectiveregulation,millownersperceivedthat it was in their intereststo place the superintendenceof rule of law forms on this power.I do not argue that one can reduce the appeal of the ideology of rule of lawsimply to the instrumental pursuit of self-interest. Large manufacturers likeHenryAshworth, RichardBirley,and R. H. Greg often show a passion for therhetoric of the rule of law which should not be lightly dismissed asdisingenuous. Further, it would be surprising if the links between liberty,justice, civilization, and the guarantees of the rule of law that stretchback toAdam Smith and David Hume had left no mark. But, nevertheless, theattitudes of businessmento the rule of law lacked the consistency that wouldallow an explanationin purelyethicalterms. The millowners'advocacy hereofthe rule of law must be contrasted with the business community's supportelsewhere for special tribunals of commerce and mechanisms of arbitrationwhich rejected legalism and judicial adjudication for 'natural' forms andjudgement by those schooled in business practice not law.79 This approachwould entrench the valued common sense of commerce rather than thesuspectedcommon sense of the state servant.Nor would I wish to reduce working-class support for rule of law formspurely to perceived self-interest.E. P. Thompson's work points to a culturalinheritance more substantial than this. But, nevertheless, if the balance ofpower had swung more radically towards the working-class critics of themarket,greater discretion in the forms of the factory inspectoratemight wellhave been the result. The most radical demands of the short-timecommitteeswerefor various forms of self-enforcement,eitherthroughthe appointmentofoperative inspectors or inspectors elected on universal suffrage. If thesedemands had been implemented, the operatives' desire to place external legalchecks on the inspectors might well have diminished. But the balance ofcontending forces was such that neither side was confident that the animatingprinciples of inspection would entrench their view of what appropriateregulation was about. Both groups thereforedemanded external checks: theessentialpessimismof the advocate of ruleof law administrativeforms comesto the fore. Both groups were prepared to sacrifice the possible 'benevolentexercise of power's80 for some feeling of control. It is effective contendingforces that seemto haveproducedruleof law forms.This was not necessarilyabalance of forces describablein pluralisticterms,but each side had to fear thepower of the other to shape governmental/administrativeenforcement. Theemergence of such forms thus demonstrated both the strength and the

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weakness of the working-class reformmovement.Furthermore,this study suggests the role played by theperceptions of stateofficials themselves in the placing of legal inhibitions on power. Such officialsperceivedclearpresentational advantages in espousing rule of law forms whileretaining discretion to place distinctive and controversial emphases on theirregulatory priorities.Certainly,in the process, theirpower to act oppressivelytowardsworking-class operativeswas reduced; but, paradoxically, so too wastheir power to regulate benevolently in favour of the operatives. Given thesuspicions of the 1830s and early 1840s, this was a bargain the organizedworking-class operatives were preparedto strike.However one makes this final judgement, one point is clear: ProfessorArthurs's general thesis, though argued with great lucidity and elegance,cannot explain the reshapingof the legal form of the factory inspectorate. Heis rightto stress that administrationmay be neitherarbitrarynor a rejectionoflegal values. However, the interplay of differentlegal forms, legal ideologies,and professional groups was, at least in the case of factory regulation, morecontradictory than his historical account suggests. State officials armed with'administrative law' cannot be ranged against a legal profession armed with'legalism'. Administrative attitudes, shaped by a broad view of the needs ofregulation,were more ambivalent towards the forms of law. The reshapingofthe inspectorate was thus prompted by broader ideological and social forcesthan the clash between the functional demands of flexible regulation and thehostile obstruction of the legal profession and its powerful clients.

NOTES AND REFERENCES1 H. W. Arthurs, Without he Law: AdministrativeJustice andLegal Pluralism in 19th CenturyEngland(1985).2 D. J. McBarnet, 'Law and Capital: The Role of Legal Form and Legal Actors' (1984) 12InternationalJ. Sociology of Law 231-2.3 E. B. Pashukanis, Law and Marxism (1978); N. Poulantzas, State, Power, Socialism (1978).4 E. Kamenka and A. Tay, 'Beyond Bourgeois Individualism: The Contemporary Crisis inLaw and Legal Ideology?' in Feudalism,CapitalismandBeyond(1975) eds. E. Kamenka andR. S. Neale. See D. Nelken's critique, 'Is There a Crisis in Law and Legal Ideology?' (1982) 9J. of Law and Society 177.5 A. Hunt, 'The Ideology of Law' (1985) 19 Law and Society Rev. 32-3; D. Sugarman, 'Law,Economy and the State in England, 1750-1914' in Legality, Ideologyand theState (1983) ed.D. Sugarman,256; and D. Nelken, 'Book Review:Without the Law' (1987) PublicLaw 293-5.6 R. Stevens, Law and Politics: The House of Lords as a Judicial Body, 1800-1976 (1979); P.Atiyah, From Principles to Pragmatism (1978) and Rise and Fall of Freedom of Contract(1979).7 Arthurs, op. cit., n. 1, p. 94.8 id., p. 132.9 id., pp. 1-2. Compare R. M. Unger. Law in ModernSociety (1976) passim.10 Institutional forms included delegated legislation, quasi-legislation, and adjudicatorytribunals within independent regulatorycommissions and inspectorates.11 Arthurs, op. cit., n. 1, chapters 4, 5, and 6.12 1833 Act to Regulate the Labour of Children and Young Persons in Mills and Factories, 3 &

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4 Will. IV, c.103, ss.17, 18, 33, 34, 41.13 K. M. Lyell, Memoirof LeonardHorner(1890) at 290.14 1844 Act to Amend the Laws Relating to Labourin Factories, 7 & 8 Vict., c. 15,s.2 and Ryderv Mills (1850) S.C. 19 C.J.M.L. 82 (Exch). For a more detailed account of the generaltransformation, see S. A. Field, Legal Forms, Legal Ideology and the Early FactoryInspectorate(D. Phil Thesis, University of Oxford, 1989).15 Arthurs, op. cit., n. 1, pp. 135, 141-2, 156.16 Field, op. cit., n. 14, involved a comprehensive survey of inpectors' letter books,correspondence, reports, and minutes of meetings over the period.17 P. W. J. Bartrip, 'Success or Failure? The Prosecution of the Early Factory Acts' (1985)XXXVIII EconomicHistory Rev. 423.18 Letter from inspectors to the Home Office 29 November 1844, L.A.B. 15(2) p. 75, andSaunders'report for the half year ending October 1847, PP. 1847-8XXVI, 105.19 Minutes of inpectors' meeting, 16July 1844,L.A.B. 15(2)pp. 506, and minutes of meeting, 12August 1844, L.A.B. 15(2) p. 34.20 H.O. 87(1) pp. 185, 192 ff., 251.21 Minutes of meeting, June 1851,L.A.B. 15(3) pp. 187ff.;letterfromWaddington to Saunders,8 May 1851, H.O. 87(2) p. 301.22 See generally Field, op. cit., n. 14, chapters 5 and 6. See also first reports of the SelectCommittee on the Regulation of Factories, pp. 1840X, Q. 2234, H.O. 87(1) p. 343, H.O. 45/2265; minutes of meeting, 21 January 1845, L.A.B. 15(2);Saunders'sreport for the half yearending October 1847,pp. xvi 1847-8,and his report for the half year ending April 1848,P.P.xvi, 1847-8.23 M. W. Thomas, TheEarly Factory Legislation(1948) 126,and Arthurs, op. cit., n. 1,p. 156.24 R. Cotterrell, 'Legalityand Political Legitimacyin the Sociology of Max Weber'in Legality,Ideologyand the State (op. cit., n. 5), p. 76-7; R. M. Unger, Law in ModernSociety (1976) 52.25 Cited by Y. Dezalay, 'From Mediation to Pure Law: Practice and Scholarly RepresentationWithin the Legal Sphere' (1986) 14 InternationalJ. Sociology of Law 90.26 id.27. Horner's report for the half year ending October 1848, P.P. 1849xxi.28 H.O. 45/2265. For a failure to legitimate by these tactics, see the reaction of Greene, abarristermagistrate sitting on the Tyldesley bench, Horner's report, op. cit., n. 27.29 Minutes of meeting, 22 January 1849, L.A.B. 15(2)p. 417, and H.O. 45/2871.30 P. W. J. Bartripand P. T. Fenn, 'Administration of Safety:The Enforcement Policy of theEarly Factory Inspectorate, 1844-1864' (1980) 58 Public Administrationand 'Evolution ofthe Regulatory Style in the Nineteenth Century British Factory Inspectorate' (1983) 10 J.Law andSociety 201, and W. G. Carson, 'The Conventionalization of Early Factory Crime'(1979) 7 InternationalJ. Sociology of Law 37, and 'Early Factory Inspectors and the ViableClass Society - A Rejoinder' (1980) 8 InternationalJ. Sociology of Law 187.31 Arthurs, op. cit., n. 1, pp. 146, 158.32 H. Parris, ConstitutionalBureaucracy(1969) 188.33 These were cases of forgery or appeals from the decisions of inspectors (as opposed tomagistrates)which were very rare.34 Op. cit., n. 12, s.41, and op. cit., n. 14, s.69; Ryderv Mills, op. cit., n. 14.34 The extended right of appeal appeared at a very late stage in the progress of the 1844 Act,with little time for inspectors to have commented upon it (Sir James Graham and JohnFielden, LXIV H. C. Debs., cols. 1107-8 (1844).35 Joint Report of Inspectors for the half year ending October 1847, P.P. 1847-8 XXVI, andH.O. 45/2861.36 Faced with a prohibition on the use of certiorari hey triedto get a magistrateto refuse to heara case, so that a mandamus could be used instead. When this failed, they devised a collusiveaction by prosectuting a short-time committee member who was also a millowner. (H.O.87(2) pp. 129-33Letters,Cornewall Lewis to Horner, 9, 15,and 22 June, L.A.B. 15(3)pp. 15-16,minutes of meeting 19 May 1849.)37 In this, the millowners closely resembled today's corporate tax and Rent Act avoiders/

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evaders upon whom McBarnet has done recent work. (D. J. McBarnet, op. cit., n. 2, 'TheLimits of CriminalLaw' (paper presentedin 1986 to CriminalLaw Reform Conference),and'Law, Policy and Legal Avoidance' (1988) 15 J. Law and Society 113.)38 op. cit., n. 12, ss.18, 34.39 See R. G. Kirby and A. E. Musson, Voiceof thePeople (1975) 353-65 for examples.40 Arthurs, op. cit., n. 1, p. 136.41 H.O. 87(1) p. 43, letter Home Officeto Inspector Howell, 10 March 1837, XLV H.C. Debs.col. 884 (1839).42 L.A.B. 15(1)p. 1, minutes of meeting, 8 September 1836.43 H.O. 87(1) p. 44, letterPhillips (Under-Secretaryat Home Office)to Homer, 13March 1837.44 Arthurs, op. cit., n. 1, pp. 136, 140, 142.45 For millowners'criticism,see R. H. Greg, TheFactoryQuestion(1837) 129;firstreportof theSelect Committee on the Regulation of Factories, op. cit., n. 22, Qs. 4094, 4377, 4378, 8865-69; N. W. Senior, Letters on the Factory Act (1837) 25. For the demands of the GeneralAssociation of Millowners see the Manchester and SalfordAdvertiser,28 April 1838.For thenegotiations between millowners and inspectors, see M. W. Thomas, op. cit., n. 23, p. 157.46 Report of Inspector Rickards, P.P. 1834 (596) XLIII, p. 44.47 See the reportof Select Committees on the Regulation of Factories, op. cit., n. 22, Qs. 1080,1167, 3038 for use of quasi-judicial powers. For Hindlay's criticisms, see Qs 1159-1167.Forinspectors' acquiescence in the loss of quasi-legislativepowers, see Thomas, op. cit., n. 23, p.158.48 op. cit., n. 22, Qs 1159-1167.49 For Doherty's memorial, see Factory Inspectors' Reports, P.P. 1837 (241) L, p. 207. SeegenerallyKirby and Musson, op. cit., n. 39, pp. 390-2. For mill operatives'views on finingonview, see reportof SelectCommittee on the Regulation of Factories, op. cit., n. 22, Qs 1783-8,and report of the Select Committee on Combinations of Workmen, P.P. 1837-8, VIII, Qs1327, 3629-31, 3572. For Oastler's views see his Address to the Friends of Justice andHumanity in the WestRiding of Yorkshirerom the Meeting of Delegates of the Short-TimeCommittees,28 October 1833,White SlaveryCollection, University of London. For Bull, seeB. L. Hutchins and A. Harrison, A History of Factory Legislation(1911) 56.50 Arthurs,op. cit., n. 1,pp. 117-8;see also SirGeorge Cornewall Lewis's defence of such forms,The Governmentof Dependencies(189 1, originally published 1841)44.51 Letter from Home Office to InspectorHowell, 3 February 1846,H.O. 87(1) p. 425;minutesofmeeting 2 June 1846,L.A.B. 15(2) p. 240; letter from Home Officeto Inspector Saunders,20May 1846;letter from Home Officeto Saunders, 8 May 1851, H.O. 87(2) p. 301.52 Homer's reports 26 December 1833,P.P. 1834(596) XLIII, p. 5 and 2 April 1841,P.P. 1841(311) x; Saunders'sreport 14April 1841, P.P. 1841 (311) x.53 Report of the SelectCommittee on the Regulation of Factories, op. cit., n. 22, Qs 1339-1348,1388-1420.54 D. Nelken, op. cit., n. 5, p. 294; E. P. Thompson, Whigsand Hunters(1975) 258-69.55 See F. A. Hayek, The Constructionof Liberty (1960); J. Finnis, Natural Law and NaturalRights (1980);J. Raz, TheAuthority of Law (1979).56 Arthurs, op. cit., n. 1, pp. 9, 1, 92, 115, 153. Nelken (op. cit., n. 5) points out the 'good guy'image for administrators.57 For radicalmill-operatives'attitude to factory regulation, see G. S. Jones, 'Class Struggleinthe Industrial Revolution' in Language of Class, ed. G. S. Jones (1983). For millowners'attitudes, see W. G. Carson, op. cit., n. 30 (1979) pp. 47-8.58 J. Foster, Class Strugglein the IndustrialRevolution 1974);P. Corrigan,State FormationandMoral Regulation(Ph.D. Thesis, University of Durham, 1977);P. Richards, The State andthe WorkingClass 1833-1841 (Ph.D. Thesis, University of Birmingham, 1975), 'The Stateand Early IndustrialCapitalism' (1979) 83 Past and Present91, 'State Formation and ClassStruggle, 1832-1848' in Capitalism, State Formation and Marxist Theory,ed. P. Corrigan(1980);W. G. Carson, op. cit., n. 30; P. Corriganand D. Sayer, The GreatArch (1985) ch. 659 N. Kirk, TheGrowthof Working-ClassReformism (1984); Jones, op. cit., n. 57; Foster, op.cit., n. 58.467


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60 Corrigan, op. cit., n. 58, (1977) pp. 149 ff.61 B. Martin, 'Leonard Horner:A Portrait of an Inpector of Factories' (1969) 14 InternationalRev. of Social History 412. See also Corrigan, op. cit., n. 58.62 Horner's report for the half year ending September 1842, pp. 1843XXVII.63 Saunders'sreport for the half year ending October 1848, pp. 1849 XII.64 op. cit., n. 62 and n. 63, and Howell's reportfor the half year ending October 1847,P.P. 1847-8 XXV.65 J. Doherty, To the OperativeCalico-Printers and Othersof England(1833), cited by Kirbyand Musson, op. cit., n. 39, p. 275.66 Manchester and Salford Advertiser9 and 16 July 1836, and 15 January 1842; Kirby andMusson, op. cit., n. 39, pp. 390-3; report of the Select Committee on the Regulation ofFactories, op. cit., n. 22, Qs 8471-3; report of the Select Committee on Combinations ofWorkmen, op. cit., n. 49, Qs 3561-2, 3626, 8677-8698.67 The report of the Select Committee on Combinations of Workmen, op. cit., n. 49, Qs 3632,3625, and for Doherty's memorials, see n. 49.68 U. R. Q. Henriques, 'An Early Factory Inspector, James Stuart of Dunearn' (1970) 50Scottish Historical Rev. 18.69 Reform meeting reported in Manchester and Salford Advertiser 5 March 1836. TheDorchester men were, of course, the Tolpuddle Martyrs.70 Stuart'sreport 31 December 1840, pp. 1841(294) p. 191.71 Report of the Select Committeeon Combinations of Workmen,op. cit., n. 49, Qs 3584-3594,1278-1297, 1351-1367.72 Stuart's report, op. cit., n. 70; and Horner's report for the quarter ending September 1844,pp. 1845,XXV.73 H.O. 45/2871.74 See referencesin n. 30 for contrasting models of this framework.75 Thomas, op. cit., n. 23, p. 244; Horner's report for the half year ending October 1847 P.P.1847-8,XXVI; Bartripand Fenn, op. cit., n. 30, p. 210.76 P. Corriganand D. Sayer, 'How the Law Rules' in Law, State andSociety, eds. A. Hunt, D.McBarnet, B. Moorhouse, B. Fryer (1981).77 E. P. Thompson, TheMaking of theEnglish WorkingClass (1968) 84 ff.78 Thompson, op. cit., n. 54, pp. 258-69;S. Hall et al., Policing the Crisis (1978) 207.79 Arthurs, op. cit., n. 1, ch. 4.80 M. Horowitz, 'The Rule of Law:An Unqualified Human Good?' (1977) 86 YaleLaw J. 561.

without the law - professor arthurs and the early factory inspectorate

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