Cardiff University

Without the Law? Professor Arthurs and the Early Factory Inspectorate
Author(s): Stewart Field
Source: Journal of Law and Society, Vol. 17, No. 4 (Winter, 1990), pp. 445-468
Published by: Blackwell Publishing on behalf of Cardiff University
Stable URL: http://www.jstor.org/stable/1409901
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JOURNALOF LAW AND SOCIETY
VOLUME17,NUMBER 4, WINTER 1990
0263-323X$3.00

Withoutthe Law?ProfessorArthursandthe EarlyFactory

Inspectorate

STEWARTFIELD*

INTRODUCTION

Professor Arthurs's book, Without the Law,' is an important account of the

varied forms in which law regulated nineteenth century society. Though
primarily a historical work, it casts light upon a central debate in con-
temporary sociological and legal thought, in that it provides a significant
empirical contribution to the developing interest in legal forms amongst
sociologists of law. Legal forms encompass the general structure, categories,
and procedures of law and legal institutions, ratherthan the specific content of
particularlaws. This interest, a direct consequence of the inadequacies of class
instrumental theories of legal development,2 has been dogged by problems
generated by the very high levels of abstraction at which much of the ensuing
analysis has been pitched. Thus, the very abstract linkages made, for example,
by Pashukanis and Poulantzas3 between the 'commodity form of law' or
'capitalist law' and the capitalist mode of production, have led to a tendency to
see legal forms in discrete sequential stages associated with particular
historical periods, and to suggest crisis when two or more legal forms co-
exist.4 In reaction to this, the need to examine the way different forms of law
complement and/or conflict with each other has been recently stressed.5
It is here that Professor Arthurs makes a crucial contribution in demon-
strating the continuing tension and conflict between competing legal forms in
nineteenth century England. On the one hand, he describes the persistence of
highly discretionary 'special' courts based on local and trade customs often
administered by amateurs (see chapters 2, 3, and 4). On the other hand, he
points out the way that the central legal system became increasingly
dominated by a 'legalist' ideology demanding adherence to liberal forms of
law associated with Dicey.6 In a third movement, he traces the emergence of
'administrativelaw', generated by the varied regulatory agencies that emerged
in the years 1830 to 1870. This developing practice rejected wholesale the

*
Cardif Law School, PO Box 427, MuseumAvenue, CardiffCF1 1XD, Wales

I am grateful to my colleague Clive Unsworth for helpful comments on an earlier draft of this
paper.

445
liberal rule of law model and adopted flexibility of form, based around broad,
discretionary, and mixed administrative powers.
The empirical demonstration of the albeit uneasy co-existence of differing
legal forms is important. But how do these forms interact, and what part does
the interplay of social interests and general social forces have in shaping this
interaction?The purpose of this paper is to re-examine Arthurs's portrayal of
this interaction, specifically the relationship between 'administrative law'
(bureaucraticlegal forms) and 'legalism' (Gesellschaftforms). To do this I will
focus upon a single regulatory agency, the factory inspectorate, and changes in
its legal form in the years 1833-50. My critique will not therefore, reflect the
impressive breadth of Arthurs's work. However, Arthurs himself returns
again and again to the factory inspectorate's development as a pivotal
moment in the rethinking of the relationship between these legal forms.7 Any
flaws in his analysis here are likely to reflect broader problems.

LEGALISM AND ADMINISTRATIVE LAW: THE ARTHURS THESIS

The form of law that Arthurs describes variously as 'legalism' or 'legal

centralism'is clearly derived from traditional liberal notions of the rule of law.
Within this paradigm, great stress is placed on clear general rules, limitations
on the breadth of administrative discretion and the separation of powers.8
Furthermore, it is said, administrative action should be subjected to two
external, controlling hierarchies.One is judicial scrutiny through appeals and
judicial review. The other is ministerial scrutiny, in accordance with the
doctrine of individual ministerial responsibility. The supposed effects of these
checks on discretion are the depersonalization and depoliticization of the
administration of law. Law is insulated from the play of contending interests
and ideologies.9
'Administrative law' operated very differently. Arthurs argues that the
nineteenth century saw the development of various forms of controls on the
exercise of capital, a regulatory project with which he is broadly in sympathy.
In seeking to develop this project, administrative officials developed new legal
forms. These encompassed a range of techniques and methods'0 which
typically involved administrators structuring and limiting their exercise of
power by the use of norms developed internally, that is, by the officials and
agencies themselves. Thus, the process was very different from that envisaged
by the rule-of-law ideal, where administrative action is closely circumscribed
by external controls. Rejecting the separation of powers, administrators
openly played the role of judges and legislators, accentuating the breadth of
their discretion.
These techniques and practices, however, were impugned, particularly by
the legal profession, as contrary to the hallowed presumptions of the rule of
law ideology. The profession took great advantage of this. As clients of the
very owners of mines, factories, and railways that were being regulated, by
criticism they could advance their own material interest, both as the
446
authoritative interpretersof law and in conjunction with the interests of their
clients. Rule of law ideology was thus used to promote legalistic administrat-
ive forms which deprived the interventionist state of necessary regulatory
methods and procedures.'1 In response to these pressures (Arthurs argues)
there was a general change in the legal form of administrative regulatory
agencies. There was widespread loss of quasi-legislative and quasi-judicial
powers and the imposition of orthodox notions of separation of powers,
widespread if gradual imposition of external legal controls on administrators,
and general limiting of administrativediscretion. The prime causal influence is
ascribed to the imperialism of lawyers and the power of their clients.

THE FACTORY INSPECTORATE AND CHANGING LEGAL FORMS

The factory inspectorate ought to be within the main line of this reshaping of
legal forms. Under the 1833 Act which created it, the inspectors were given
very broad quasi-legislative and quasi-judicial as well as purely administrative
powers.12 In addition, the constitutional structure of the inspectorate seemed
to ensure that the control of politicians or other outsiders over the processes of
policy-making and implementation was highly attenuated and ambiguous.
There was little control of the inspectors or influence over them vested in
Home Office counsel or the Law Officers of the Crown or the Judiciary. The
influence of the higher judiciary seemed to have been curtailed by section 41
which severely restricted appeal against conviction or judicial review of
magistrates' decisions. The influence of the Law Officers of the Crown in
interpretingthe Factory Acts was limited by the inspectoral practice of issuing
informal 'instructions' to the regulated as to the true meaning of the Act. In
addition, the inspectorswerenot partof the normalHome Officehierarchy.They
exercised functions and powers vested by Parliament in the office of inspector
itself. The King himself had the power to appoint the inspector under section
17. Leonard Horner, one of the first inspectors, commented in 1833 that it was
his independence and freedom from control that he first noticed.'3
By 1850, however, the quasi-legislative and quasi-judicial powers to issue
regulations and determine disputes had been removed. The Home Secretary
had assumed a closer supervision of policy formation, and factory regulation
has become subject to scrutiny from the higher courts.'4 Administrative
action by the inspectors had also become subject to close scrutiny by
government lawyers. The independence of the inspectors had thus been
severely curtailed, their discretion shaped by the external controls of legal
rules, ministerial discretion, and judicial and other lawyerly interpretation.
Arthurs's general thesis appears to offer a ready-madeexplanation for those
changes. They can be seen as the imposition of the strait-jacket of legalism,
primarily at the behest of a hostile judiciary and legal profession, closely tied
to mill-owning interests, and antagonistic to regulatory intervention in the
market. The legal profession seems to offer a promising mediating agency
between general social interests and ideologies and changes in concrete legal
447
forms. If the abstractions of Poulantzas and Pashukanis lead to difficulty in
analysing the complex interaction between different and perhaps competing
legal forms, then this analysis might appear to offer a potentially important
advance at a more concrete level. But to what extent is this an empirically and
conceptually adequate account of the way social interests and forces shaped
the legal forms of the factory inspectorate?

LEGAL PRACTITIONERS AND THE INSPECTORATE

The principal point of contact between inspectors and legal practitioners was
through their relationship with government lawyers, especially Home Office
counsel and the Law Officersof the Crown. The relationship revolved around
lawyers' drafting of new legislation and interpretation of statutes, where there
was some perceived ambiguity in them. Arthurs sees this as a key social role for
lawyers, in which they could exercise great influence over developing
institutional forms. This is a point at which lawyers, by stressing conventional
legalist attitudes, could thwart the new administrative regimes. Not
surprisingly, then, he portrays the relationship as an essentially antagonistic
one. Administrators are said to resent the unhelpful drafting of lawyers hostile
to the policy of regulatory legislation. The Law Officersare said to have been
highly restrictivein their interpretations of the Factory Acts, in contrast to the
administrators' expansive and purposive approach. The response of
administrators was, according to Arthurs, to try to enforce the legislation
without particular regard for authoritative interpretation. The eventual close
supervision of the administrators by Law Officersis said to be imposed:they
'pre-empted[NB]the administrationas authoritativeinterpretersof legislation'.15
The trouble with this is that it is not borne out by detailed examination of
the primary historical materials.'6 Again and again inspectors responded to
perceived difficulties in administering the Act by initiating contact with the
Law Officers and enabling them to play an apparently supervisory role in
relation to inspectors' activities. To understand this, one needs to understand
the problems faced by the inspectorate in the 1830s and 1840s. As has often
been made clear,'7 inspectors were continually faced by blatantly biased
interpretations of the legislation by magistrates who were either themselves
millowners or relatives or friends of millowners. One of the habitual responses
of inspectors to acquittals or sentences that they perceived as unacceptable
was to secure the opinion of the Law Officersof the Crown, which they would
then use to influence the magistrates to adopt more favourable interpretations.
This can be extensively illustrated. At a meeting late in 1844, the inspectors
wrote to the current Home Secretary, asking for the opinion of competent
legal authority on a point in dispute. They asked particularlythat it should be
'in such form as will carry with it that weight of legal authority to which the
magistrates would pay deference in adjudicating upon cases brought before
them'. Inspector Saunders made the same point in a report in 1847: 'in all the
prosecutions in my district, magistrates have paid a ready attention to
448
competent legal opinion when fairly explained and submitted to them.'18
I will argue later that this attitude to the Law Officersstemmed from their
apparent independence from the social conflicts over factory regulation and
the distinctiveness of their 'lawyerly' authority. But, for the time being, I want
to confirm that this was a relationship promoted by the inspectors, not
imposed upon them. In the summer of 1844, the Home Secretary (Sir James
Graham) asked the inspectors to prepare an abstract of the newly passed
Factory 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 would
be deferred to in questions arising with the interpretation of two Statutes. Thus when
prosecutions took place we should be able to refer to the abstract, as containing not our
interpretation of the Law, but that which proceeds directly from the Law Advisers of the
Crown, whereby much mis-construction will be avoided, and greater uniformity in the
decision of the Magistrates secured.

When Graham nevertheless instructed them to prepare the abstract them-

selves, they complied, but sent a letter to the Home Secretarywith the abstract,
pointing out that since they had lost their quasi-legislativepowers 'no authority
attaches to the Abstract from its being prepared by us, as Inspectors of
Factories'. They asked for a careful revison of the Law Officers'whose opinion
would be received as decisive on points of doubt and difficulty'. The abstract
was in the end sent to a barristernamed Elliot and revisions were necessary.19
This concern for 'authoritativeinterpretation'was of long standing. In 1839,
Inspector Saunders was concerned by a widespread practice by magistrates of
mitigating penalties in cases where the evidence to justify mitigation was very
slight. He responded by seeking the opinion of an eminent provincial counsel,
a Mr Marshall, on the proper construction of the relevant clause, and then
sought to influence magistrates by quoting the opinion. In 1840, Inspector
Howells asked for the Law Officers'opinion of a magistrates' decision on the
time within which notice of complaint under the Act had to be served. Again
the resultant opinion was used to influence subsequent decisions.20
Often inspectors were very much more keen to get the Law Officersinvolved
than the Home Officewas to sanction this. In March 1851 Leicestermagistrates
adopted a novel and restrictive interpretation of the term 'factory' as used in
the Factory Acts. Inspector Saunders said in a letter to the Home Secretary
(April 1851) that this was contrary to all previous interpretations and asked
for the opinion of a 'competent legal authority'. This was denied him because
the Home Secretary, Sir George Grey, thought the opinion unnecessary. But
Saunders was not prepared to leave it at that. He prosecuted the master again,
and when the magistrates acquitted again, reported their annoyance at not
being furnished with an opinion from the Law Officers.Saunders complained
that it must be obvious that his proceedings would be embarrassed by these
hostile decisions, and again requested the Law Officers'opinion.21
Other examples could be given, but the general point is clear.22 Far from
disassociatingthemselvesfrom lawyers,a primestrategyfor securingregulation
was to promote contact. This is not a case of Crown lawyers pre-empting
449
administrativeinitiative,but ratherbeinga primetool in suchinitiatives.
Thisis not to denythatCrownlawyersadoptedrestrictiveinterpretations of
the Act. Many instancesof such restrictivenessand unhelpfulnesscould be
given.23It is ratherto arguethatthedisadvantages of suchrestrictiveness were
outweighedby significantadvantages.Whatmightthesebe?
Whatthe inspectorscontinuallystressin theirrequestsfor legalopinionis
the distinctiveauthoritythatlawyerlyopinionholds.Oneof theconsequences
of 'legalist'ideologyis a peculiaremphasison thedistinctivenessof thecraftof
the lawyer,the differencebetweenlegal'andother forms of reasoning(for
example,politicalor moralreasoning).Thisflowsfroma conceptionof lawin
whichlegal rulesare assumedto be part of a clear,consistent,and in theory
'gapless'system.Legalreasoningis thusto be carriedout by a logicnot guided
by 'external'interestclaims,codesof values,or politicalpolicies.Thisinvolves
the logicalanalysisof meaningbasedon distinctivecriteriaof interpretation.24
Therelationshipbetweenthispurportedmethodologicalautonomyandthe
statusof lawyersis a complexone.Weberemphasizedthe statusthatattached
to purelegalrationalityin the advancingof lawyers'claimsto socialauthority
over othercompetitors.25Yves Dezalayhas recentlystressedthat one of the
socialrolesthatlegalprofessionalsplay(particularly 61itebarristers)is simply
to statethe law:
[i]n the name of the authority they are recognized to possess, the latter state here ... the
legitimate interpretation of law and legitimate practices.26
Thus,becauseof the lawerlycraftthe LawOfficershadmastered,theywere
assumed to state THE LAW, in some neutral, non-partisan,and hence
authoritativeway.
There are severalexamplesof the way factory inspectorsexploitedthis
duringwhathas cometo be knownas the 'relaycontroversy'.Thisconcerned
thelegalityof certainformsof shift-patterns,
adoptedby millownersin thelate
1840sin orderto lengthenthe adultworkingday. Most of the inspectorswere
convincedthat relayswereillegal,but magistratesrefusedto supportthem.
After severalrequests,the inspectorshad securedan opinionfrom the Law
Officerssupportiveof theirinterpretation.InspectorHorne wrote to a firm
whichhadjust beenacquitted,sayingthat the decisionwas contraryto 'high
legalauthority':
I presume that you will admit that the joint opinion of the Attorney and Solicitor-General
must be of greater authority [than the decision of the magistrates] in the interpretation of
an Act of Parliament.27

Hornermade it clear he would continue to prosecutethem, despite the

adverse decision of the magistrates.Legal opinion was used to validate
Horner'sand other inspectors'controversial(and value-laden)decisionto
continueprosecution.
The importanceof lawyerlyauthoritycan be furtherillustrated.In early
1848,a sub-inspectorsuccessfullyprosecuteda manufacturerfor operating
relays. But the magistrate complained of the irrationality and absurdity of the
law, and attacked the sub-inspector's actions as harsh and dictatorial.
450
Inspector Saunders defended the decision to prosecute and demand stringent
penalties by saying that he had previously taken a lawyer's opinion on the
disputed point, which had been supportive of the inspectors' interpretation.
He stressed that the lawyer was independent and unconnected with factories,
and the opinion had been previously sent to the manufacturer. The
implication was that the master was truly culpable because he had consciously
broken a known rule. The magistratewrote to the Home Secretary,saying that
this explanation had caused him to change his mind and now he felt that
Saundershad acted with 'considerable tolerance'. The intervention of the legal
authority of counsel had transformed an uncertain, irrational law into a pre-
ordained, known rule of law in the eyes of an opponent and transformed his
view of the inspectors' behaviour. This did not always work, but the strategy
was to suggest that inspectors worked within a structure of rules determined
by autonomous legal actors.28
This legitimating strategy would even be used against the Home Secretary
himself. When he advised inspectors to stop prosecuting for relays under
pressure from millowners, Horner wrote back in polite but firm terms that this
was tantamount to instructing inspectors not to enforce the law of the land,
since the Law Officersclearly declared relays illegal. He demanded that if Sir
George Grey (the Home Secretary)wanted him to do this he should state this
explicitly, because Horner could 'not undertake any discretionary power'.
This theme, that the Law Officers'opinion was effectively authoritative on the
meaning of the Act, is repeated again and again. Inspectors would minimalize
the role of discretion and policy in their decision-making:

[t]his provision of the law being clear and unambiguous, it has been our duty to enforce it
with strict impartiality throughout all the districts, without discussing the question which
has 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 the
observance of the Factory Acts, and their powers being clearly defined by law [NB], I
ought for every official act to have the warrant either of the law itself, or a clear definite
instruction from the Secretary of State.29

The fact that early factory law was often a shifting, uncertain thing,
susceptible to manipulation and reinterpretation, is glossed over. Historians
and 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 presented in this manner. The attraction of 6lite
government counsel was their apparent authority to find THE LAW. Even if
sometimes the law they found was not the law inspectors wanted, or even
perhaps because the law found was sometimes not what inspectors wanted,
they conferred a certain legitimacy to administrative action. The relationship
between the factory inspectors and lawyers, both within the state and outside
it, was thus more complex than Arthurs's portrayal would suggest.

451
 SUPERIOR COURTS AND THE INSPECTORATE

Analogous difficulties can be found with Arthurs's portrayal of the relation-

ship between the superior courts and the inspectorate. Again, he suggests an
antagonistic relationship. He argues that administrators generally rejected
judicial review and appeal to superior courts because they felt review and
appeal would be used to frustrate enforcement of the legislation. He
acknowledges that there were instances where some superior court decisions
lent legitimacy to administrative initiatives (p. 158) but argues that the
preponderant trend demonstrated judicial hostility to the new interventionist
philosophy. By the 1850s there was a move toward review and appeal by the
courts, but the clear implication is that this was the result of the power of legal
professionals, and their promotion of the orthodoxies of legalism.31
Again, on the surface, the Factory Acts appear illustrative. The 1833
legislation had been largely designed by Edwin Chadwick, a state official
known for his antipathy to superior court review of administrative action.32
Accordingly, section 42 had a broad privative clause. It prohibited judicial
review by certoriari or Bill of Advocation. It only allowed appeals in very
limited circumstances.33The scope for superior court intervention was thus
initially highly circumscribed. By 1844, however, an Act had been passed
allowing appeals against any conviction for an offence punishable by ?3 or
more. By 1850 the first superior court case on the Factory Acts had been
heard, and sure enough, evident hostility to the interventionist state had led to
a highly restrictiveinterpretation of the Act, which effectively undermined its
efficiency.34
Arthurs's portrayal of initial administrative sensitivity to the dangers of
appeal or review, followed by the imposition of hostile judicial scrutiny, seems
attractive. But in fact, after 1844 inspectors were very keen to extend the right
to appeal. By December 1847, inspectors were already convinced of the need
for a superior court ruling on any points of dispute.35 They made extensive
efforts to get the disputed question of the legality of relays to a superior court
although the Act seemed to preclude it. In co-operation with Crown lawyers
and a sympathetic private lawyer, they devised a number of legal sophistries to
do so.36
The 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 judicial
intervention: they created - indeed, manipulated - the opportunity. This is a
very 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 the
cultural and financial resources to use lawyers to challenge the Act, to renderit
ambiguous, to construct loopholes in it.37 Once masters chose to test and
probe the limitations of the Factory Acts on a legal plane, to reject
administrators' and their advisors' authority in interpretation, inspectors
could not avoid legal actors and institutions. They clearly realized that a
strategy of avoidance of law would be highly dangerous. Once masters had
452
secured some acquittals before magistrates, even though other magistrates
might support the inspectors, the law had to be validated and made certain.
This could not be done by the inspectors themselves. They needed the
apparent disinterest of the higherjudiciary. 'Legalism' was thereforepromoted
by the administrators.

THE LOSS OF QUASI-LEGISLATIVE AND QUASI-JUDICIAL

POWERS

Under the Factory Act, 1833, section 18 enabled inspectors to create 'any
Rules and Regulations necessary for the due Execution of the Act'. Section 34
provided for the bringing of any criminal proceedings under the Acts before
either a magistrate or an inspector.38These appeared to be both crucial
innovations and crucial instances of defiance of the 'legalistic' orthodoxy of
separation of powers. The quasi-judicial power seemed to hold out a way of
neutralizing the magisterial bias against interference with local middle-class
interests that had dogged enforcement of earlier Acts.39 Arthurs argues that
quasi-legislative powers were also crucial to 'administrative law'. They were
the means by which officials could translate the open-textured language of the
regulatory legislation into detailed commands, thereby facilitating compli-
ance.40 In addition, such powers enabled administrators to structure
internally the broad discretion given them by statute, and thus place
constraints on arbitrarinessin administration.
Both the quasi-legislative and the quasi-judicial powers were removed by
section 2 of the Factory Act 1844. But even before this, these powers had
become closely circumscribed.In March 1837, the Home Office had written to
the inspectors, telling them that they should not in the first instance use their
quasi-judicial power to hear cases themselves. They should only do so if
magistrates failed to decide cases on their merits. By 1839, the Home Officewas
already introducing bills that would remove the power altogether.41 In 1836
the Home Officehad asked the inspectors to frame a single code of regulations.
These were approved by both the Home Secretary and the President of the
Board of Trade. Technically this was not required under the Act, but the
implication is surely that, in practical terms, the inspectors would not be
allowed to change the regulations without approval from central government.
The code of regulations was unchanged until the 1844 Act.42
In actual fact, the inspectors had also developed a system of issuing
'instructions' to relevant parties as to the requirements of the Act. The legal
nature of these instructions seems to have been impreciselydefined. They were
not promulgated as formally as regulations, and seem to have existed in an
ambiguous area between overt rule-making and creative 'clarification' of the
Act. They had appeared to be a prime mechanism by which the inspectors
could usurp the interpretativerole of legal practitioners. In any event, a similar
process of circumscription of this power took place. In March 1837, the Home
Secretary told inspectors not to issue any instructions until they had been
453
submitted to the Law Officersfor approval.43
Professor Arthurs's explanation of these changes will be becoming familiar.
The opponents of state intervention and thus regulatory legislation (in this
case, millowners) recognized that derogation from administrative ad-
judication and control of administrative rule-making would undermine
effective regulation. But self-interest spoke in the language of constitutional
impropriety, of the insult to the sacred principles of separation of powers.
Arthurs does not explicitly consider the aetiology of the loss of the factory
inspectorate's quasi-legislative powers, but he ascribes an immediate causal
role to the Law Officersin relation to restrictions of the quasi-judicial power.
This, of course, squares with his portrayal of the legal profession's role in the
promotion of 'legalist' forms. He argues that it was the Law Officers who
prevailed upon the Home Secretary to require the factory inspectors to cease
acting as magistrates. But the reference cited does not support him, leading
only to a lettercontaining Home Officeinstructions in relation to the exercise of
these powers.44
There is, however, clear empirical support for several elementsof his general
analysis. Millowners hostile to the whole business of factory regulation were
prominent in constitutional critique of the inspectorate. Large millowners like
R. H. Greg, Henry Ashworth, and Richard Birleywere explicitly critical of the
breach of the principle of the separation of powers. The removal of quasi-
judicial and quasi-legislative powers were key demands of the General
Association of Millowners in the late 1830s. There were anxious and
protracted negotiations between mill-owners and inspectors in the late 1830s,
when redrafting of various Factory Bills took place. During this redrafting,
proposals for the curtailing of quasi-legislative and quasi-judicial powers
began to emerge.45
On the surface, Arthurs's explanation of this in terms of pressureexerted by
millowners on a Home Officesympathetic to their anxieties, but couched in the
form of constitutional objection, seems attractive. But I want to suggest that it
is 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 which
inspectors acquiesced in, supported, and even initiated the curtailment of their
powers. As early as 1834, Inspector Rickards was complaining of the delicate
position inspectors were placed in, as regards the quasi-judicial power. They
were 'in the awkward position of being informant, witness and judge'. Since
they also had quasi-legislative powers 'they were not the properestjudge that
can be selected'. He therefore recommended that the judicial powers should be
exercised only in conjunction with a magistrate.46 From the start, inspectors
seem 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 when
magistrates were not hearing cases fairly, they declined to do so even when this
was clearly true. This requires some explanation: as Charles Hindley (a
Member of Parliament and leading factory reformer) pointed out, the
inspectors were allowing enforcement to be undermined without using the
454
remedy explicitly given them for this purpose in the Act. The instrumental
flexibility provided by 'administrative law' was clearly being neglected. By
1840 none of the factory inspectors were arguing for the retention of the power
to hear cases, and several were expressing anxiety about it.
Similarly, one might have expected widespread inspectoral resistance to the
loss of quasi-legislative powers. And yet, in 1839, the inspectors expressed
regret at the loss of a Government Factory Bill, specificallybecause it removed
these powers, and inserted the enforcement machinery into the Act itself.
Again, the much-vaunted flexibility of 'administrative law' does not stop
inspectors' support for moves towards 'legalist' legal forms.47
This does not sit well with Professor Arthurs's view of the orthodoxy of
separation of powers as something imposed on a reluctant inspectorate. It
might be argued, however, that this is simply a matter of administrators'
anticipating objection from the advocates of legalism. Indeed, there is some
support for this. Horner said before the 1840 Select Committee that a prime
reason for this failure to use his quasi-judicial power was that he felt he would
not carry public opinion with him if he acted as both prosecutor and judge. In
the early 1830s Horner had defended quasi-legislative powers and it was only
after significant exposure to criticism by millowners that he began to support
their removal.48
But this sensitivity to criticism cannot be simply seen as a fearful
acknowledgement of the power of the legal profession and its millowning
clients. The political constituency of 'legalism' in relation to the factory
inspectorate was much broader. The immediate cause of the Home Office
directive to inspectors to submit 'instructions' to the prior scrutiny of the Law
Officerswas a memorial by John Doherty, leader of the cotton spinners' union
and secretary of the workers' Manchester Short-Time Committee.49 In
complaining about one of Horner's instructions, he said that 'no such exercise
of arbitrary and unconstitutional power is recorded in the annals of their
country'. He demanded that prior Law Officerapproval be required.Fining on
view (that is, inspectors' use of quasi-judicialpowers) was heavily criticized by
mill-operatives. Oastler and Bull, two Tory philanthropist supporters of
factory reform, were trenchantly opposed to what they saw as the
inspectorate's unconstitutional violation of the separation of powers doctrine.
Doherty's memorial of 1837 betrays the same preoccupation.
However, to argue that the political constituency of legalism was broader
than Arthurs suggests is not to argue it was a self-evident consensual
orthodoxy implemented everywhere. Arthurs's book itself (especially chapter
4) demonstrates the variety of constitutional forms possible within the
nineteenth century regulatory state.50 Neither can it be said that inspectors
always followed the path of 'legalist' constitutional rectitude. We have seen
that one of the prime targets of the inspectors was to use the views of the
Law Officers and the Home Secretary to 'influence' the magistracy. When
magistrates acquitted, they would be told that their views were contrary to
those of the Law Officers,and the Home Secretary.Various Home Secretaries
warned the inspectors of the constitutional impropriety of this, as an
455
interference with the independence of the judiciary, but it remained a
continuing tactic.5' Inspectors' acquiescence in the loss of quasi-legislative
and quasi-judicial powers cannot therefore simply be the product of an
acceptance of 'legalism' as self-evident legal principle. What I will suggest, in a
subsequent section, is that the move towards 'legalism' in legal forms can only
be understood, in both its internal dynamic (the impetus from inspectors) and
its external dynamic (the impetus from civil society), if the relationship
between the legitimacy of law and state and the broader social conflicts of the
period are brought to the fore. A causal explanation limited only to the role of
the legal profession and its powerful clientele does not grasp this broader
aspect.

DISCRETION

These themes could be further exemplified. Arthurs stresses the utility of

vesting wide discretion in administrators, and thus its centrality to 'adminis-
trative law'. This would suggest a model in which the rational factory
inspector, keen to produce efficientregulation, would seek a broad discretion-
ary legislative mandate. Rather than encourage the emergence of detailed
external control of discretion by legislative specificity, he would seek breadth
as a prerequisite to detailed internal control. But often the inspectors' actual
attitude towards discretion was rather different. A constant theme was that
inspectoral and sub-inspectoral powers should be defined as precisely as
possible. Thus Horner and Saunders, in their evidence to the 1840 Select
Committee on the Regulation of Factories, were keen to avoid being given a
general power to order the boxing off of any machine they considered
dangerous. They stressed the need to avoid broad, discretionary powers that
might appear arbitrary.52In 1840 Horner proposed that inspectors or sub-
inspectors should be given the power to cancel medical certificatesthat appear
'improperly granted'. Before the 1840 select committee he was clearly
concerned about presenting this power, apologizing for 'what may seem to be
an arbitrary proceeding'. He said he would propose its introduction only on
condition that there was provision for an appeal to petty sessions from
inspectors' decisions. Similarly,Horner was highly reluctant to accept a power
to report on the general treatment of children in the mills. Horner stressed the
dangers of giving too much power to the inspectors: he thought such a power
would be inquisitorial." The inspectors clearly do not believe that the
instrumentalflexibility of 'administrativelaw' is necessarily a decisive factor in
its favour.

THE FACTORY INSPECTORS AND LEGAL FORMS

This concrete analysis of changing legal forms suggests deficiencies in

Arthurs's analysis. In particular it suggests problems generated by a focus on
456
the functional needs (narrowlydefined) of administrativeregulation. Adminis-
trators are said to promote 'administrative law' because of the increased
flexibility and thus the effectivenessit brings to a regulation. But the inspectors'
behaviour in advancing 'legalist' positions is inexplicable in these terms (given
that most inspectors genuinely seem to have wanted to promote some form of
effective regulation). In Arthurs's analysis, they are renouncing the effective
instruments of 'administrativelaw' for the false gods of the 'legalist' ideology.
Furthermore, without some sense of the potential utility for the factory
inspectors themselvesof adopting 'rule of law' legal forms, great explanatory
weight has to be placed on the power of judges and the legal profession in
accounting for the movement toward these forms. As Nelken has put it 'for
[Arthurs]the source of the power of legalism lies in the power of its sources: the
legal profession and the judges'. But this implies that everybody else has been
mystified, hoodwinked by the cloak of tradition that the rule of law ideology
provides. E. P. Thompson has been rightly suspicious of this implication.54
There is a need to develop an explanation that does not implicitly dismiss the
inspectors' and indeed the operatives' promotion of rule of law or 'legalist'
forms in this way.

LEGAL FORMS AND THE POLITICAL CONTEXT OF

INTERVENTION

In Arthurs's analysis, there is a failure to consider legal forms in relation to the

perceived legitimacy of state activity. This is curious because one of the central
claims of the liberal rule of law is that adherence to its legal forms brings some
kind of legitimacy and authority to the rule of the state.55. This failure seems
to stem from Arthurs's attitude towards the substantive policies implemented
by the developing nineteenth-century regulatory state. This development,
from the late 1830s, encompassed a range of initiatives from regulation of
mines and factories, the reform of public health and sanitation, local
government, prisons, and the development of education. These state
interventions into social life represented a marked step away from the
aggressive liberal laissez-faire social policy of the 1820s and early 1830s, which
had provoked widespread unrest and rioting amongst sections of the working
classes and the rural poor. Explanations and moral assessments of these
developments have been the subject of widespread debate amongst historians.
Arthurs on the surface espouses agnosticism about the social impulses
towards regulation and ambivalence in his moral judgement: he argues that
the reforms were neither 'intrinsicallybenign nor intrinsically oppressive'. But
this explicit agnosticism and ambivalence does not generally permeate the
book. Thus, elsewhere, 'administrative law' is said to be about protecting
consumers, 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 and
professionalism', and as a 'remarkable group of pioneers'. The protective,
457
benevolent face of regulation tends to be stressed.56
This, of course, has consequences for his analysis of criticism of the
nineteenth-century regulatory project, which tends to be dismissed as self-
interested special pleading from the powerful. But both the enforcement of the
factory acts and the broader regulatory project were subject to much broader
opposition. Only by understanding this can one understand the real problems
of accountability posed by 'administrative law'. To understand the signific-
ance of this, one needs to place the enforcement of the factory acts within a
political context.
During the 1830s and 1840s factory regulation was an acutely controversial,
political business. The factory operatives' short-time committees saw
restriction of labour time as being at the heart of their economic and political
strategy. Their main economic strategy was to place controls on production so
that the relative bargaining power of masters and men would be radically
transformed. This strategy would enable factory operatives to reassert the
traditional controls of the artisan over conditions of work. On the other hand,
cutting labour costs by extending hours and reducing money-wage rates was a
key management response to difficultmarket conditions.5" In a narrow sense,
factory regulation was thus at the sharp end of an as yet unresolved class
struggle. But the complexities do not end there, in that the inspectors
themselveshad their own distinctive sense of the political economy that should
underpin the enforcement of the Factory Acts. It is essential to consider the
impact on the factory inspectorate and its legal form of these competing
perceptions of the broader nineteenth-century regulatory project.
According to Arthurs, 'no one argues that proponents [of the regulatory
state] were seeking a general transformation of society, the state or the law' (p.
92). But this remark is based on a very partial coverage of the relevant
historical texts. Foster, Richards, Carson, Corrigan, and Sayer, have all, in
various ways, argued just this point.58 Familiarity with these radical socialist
perspectives might well have led Arthurs to reconnect legal forms and the
legitimacy of state action more closely.
These Marxist or neo-Marxist accounts see the development of the
regulatory state from the late 1830s to early 1840s as a response to the
widespread working-class disaffection of the period.59 It represented a move
away from the aggressive and suppressive social policy of the early 1830s to a
period of 'liberalization'. Social reform, including increased controls on the
exercise of capital, are seen as part of a broad-ranging hegemonic project,
aimed at the re-education of the working class into an acceptance of the broad
parameters of an industrial capitalist society. Philip Corrigan has argued that
the political power of the state was crucial to this process, and yet one of the
required reforms was that the state itself (and therefore law) should be seen in
a different way, as an apparatus of 'neutral' institutions rather than an
instrument of a particularclass. Further, he argues that it was influential state
servants who were a prime influence on those social policy changes.60
It is obviously not possible within the bounds of this paper fully to defend
these views. However, there is significant evidence that factory inspectors and
458
indeed other servants of the state crucial to the emergence of factory
regulations, such as Chadwick and Ashley, saw factory regulation as such a
potential means of re-education and incorporation. The regulatory style of the
inspectorate was informed by a clear sense of political economy, a sense not at
all antithetical to continued capital accumulation. Martin has demonstrated
that Horner, the most influential of the inspectors, was clearly not against
principles of capitalist political economy. It was 'bad' political economy (that
is, the unrestrained pursuit of profit) that he opposed.61 Good working
conditions and education would be profitable in the end. Horner responded to
the Plug Riots of 1842, in which there was extensive machine breaking, and the
intense Chartist activity of 1838, by stressing the advantages that regulation
and education could bring. It would strengthen the 'just influence of property
and education'. The instilling of 'moral and religious principles'would reduce
the danger that 'ignorant and excitable young men and women, similar to
those who constituted the late mob' might be seduced by agitators into
'courses so dangerous to the community'. Factory regulation was seen as
crucial to this end.62
Other inspectors shared these beliefs. Inspector Saunders stressed his
sensitivity to the need for adequate profit making and the risks attendant on
the investment of capital. He stressed the 'great and increasing evils' of the
factory system which congregated together:
... withoutsufficientprotection and control, large masses of careless and ignorant persons,
among whom, as a class, crime and debauchery have prevailed to an extent which at times
endangered, not only the very property these persons had assisted to create, but the very
welfare of the state, and the liberty and even lives of the well-ordered classes of society.63
[original emphasis]
Factory regulation was regarded as important to perceptions of the role of
the state. Horner was convinced of the need for institutions that 'would be
evidence to the humbler classes of friendly dispositions and kind sympathy in
those above them'. Saunders stressed that if the operative felt that her or his
interests had been consulted and protected, she or he would learn the
importance of good order and be prepared, 'under whatever circumstances he
[sic] may find himself [sic]', to respect the institutions of her or his country.
Inspector Howell, justifying factory regulation in 1847, argued that the
quiescence of the operative districts in a period of slump was due to a feeling
that it was not the result of class legislation.64
The significance of this is that such an incorporative strategy was bound, in
the context of the politics of the period, to be controversial. There was no
agreement that this is what regulation should be about. Radical operatives
saw it as the cutting-edge of the 'Great Change'. Some millowners saw it as an
assault on vital principles of classical political economy. The inspectors'
priorities in enforcement were thus unlikely to be readily and immediately
accepted. Their 'impartiality and professionalism' remained in doubt in the
1830s.
This scepticism reflectedbroader working-class suspicion of law and state in
the class conflicts of the period. John Doherty, leader of the cotton spinners'
459
union, and Secretary of the Manchester Short-Time Committee, repeatedly
argued that limitations of hours could not be effectively obtained by reliance
on a middle-class state:
[t]hewarbetween'capital'andlabourstillrageswithunabatedfury... capitalis supported
by GovernmentandLaw.Labourhas nothingto sustainit but the energies,wisdomand
virtue of its owners.'5

For Doherty, limitation of hours was best achieved by bargaining with

employers under threat of strike. In the early 1830s the language of working-
class self-assertion was the language of self-enforcement of factory regulation
- of working-classcontrol on production. If law had to be used, the short-time
committee members tended to be most keen to resurrect the old system of
common informers and private prosecutions, which would keep enforcement
in working-class hands. The Factory Act 1833 was denounced, not just for
reflecting substantive priorities perceived as inimical to working-class
interests, but as creating a 'vermin of familiars' (that is, the inspectors) and
underminingself-enforcement. Thus the short-time committees advocated the
appointment of working-class inspectors, and indeed at one point purported
to appoint their own. They also suggested that inspectors should be chosen by
universal suffrage amongst workers and masters.66
Thus, the legitimacy of the factory inspectorate had to be established in the
face of potential class-specific alternatives for enforcement, which rested upon
very different assumptions about the relationship between state, law, and the
citizen. Law was being experienced here not as a sacred object of passive
respect and obedience (THE LAW), as a 'neutral' institution, but rather as
another instrument of industrial struggle. It is conceived of as something
activated 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 of
inspectors' enforcement of the Factory Acts. Doherty, in a memorial to the
Home Office, complained that the inspectors' administration of the law was
giving the operatives the impression that:
.. justice,wherethepoorareconcerned,is no longereven-handed,andthatin deference
to the understoodwishesof the moreopulentand thereforemoreinfluentialparties,the
law is in verynumerousinstancespervertedor abused.
He said that extreme dissatisfaction existed amongst the operative classes, and
that the evident class bias was dangerous and alarming. He accused Horner of
accommodating the millowners at the expense of the children's health,
comfort, and education. He later called for Horner's dismissal. Before the
Select Committee on Combinations, Doherty accused the inspectors of acting
as the 'good friends' of the masters, and spreading lies about the unions.67
There were widespread allegations of partiality against James Stuart, the
Scottish Factory Inspector.68Suggestions were made that this process was, or
might become, part of a process by which confidence in the impartiality of the
law was undermined. The reformer, R. S. Bull, suggested that what the people
wanted was even-handed law:
460
 ... the meeting had not forgotten that the Dorchester men were yet abroad. ... He did not
wonder, indeed, that the law should be held in so little respect.69
It should be rememberedfurther that operatives had much to fear from the
inspectors' exercise of their discretion. Many of the offences created by the
1833 Act were directed at the operatives themselves. The practices of Inspector
Stuart are revealing. He reported in 1840 that he found it was the spinners
themselves who were most responsible for violations of the Act.70 If a child
was found working under a false age certificate, his general practice was to
threaten prosecution unless the masters dismissed the adult spinner who had
hired the child, rather than prosecute the master. Leaders from the spinners'
union complained in the late 1830s that, because it was traditional for the
spinner to employ the child piecer, and pay the child, the effect of Stuart's
practices was substantially to shift the burdens of the legislation onto the
operatives." By 1840 Stuart had dismissed less than a dozen, but the effect had
been 'salutary'. The severity of such punishment when times were scarce is
evident. Some operatives were 'almost starving for want' as a result. And it
was not simply Stuart's practices that could have severe consequences. When
two mothers of children were convicted for falsely testifying about the age of
their children, at Inspector Horner's request, their punishment was 'restricted'
to twenty-four hours in prison. In 1844, Jane Flynn was prosecuted for giving
currency to a forged certificate of age for her own daughter. Convicted, she
was imprisoned for seven days.72
The result was that operatives as well as millowners were worried about the
exercise of broad discretion by factory inspectors. It is all very well for Arthurs
to argue that internal structuring of discretion by administrators themselves
ensured that the exercise of state power was not arbitrary (p. 161). The
problem remains that any system of accountability to internally-generated
standards raises questions about the legitimacy of such a pedigree. These
internal standards cannot be seen simply as a technical working out of the
specifics of a general scheme, the underlying values of which have been
determined by the legislature. The legislature itself contained highly contra-
dictory attitudes to the purposes of regulation. Enforcement thus entailed
taking one of a range of available views of the social policy underpinning the
acts. When this is remembered it is hardly surprising that purely internally-
generated norms lacked legitimacy.
It is in this context that we must reassess the transformation of the
inspectorate's legal forms and in particular the internaldynamic provided by
the inspectors. Intervening in a site of acute class conflict, they were as
vulnerable as any group to accusations of class bias and the promotion of their
own political priorities. The inspectorate therefore promoted a move to
'legalist' forms, despite the possible instrumental difficulties posed by less
flexible legal forms and less administrative freedom of action. This must be
seen as an attempt to respond to allegations of class bias by presenting
decision-making as an essentially 'technical' process. It was representedas the
non-discretionary implementation of instructions and commands contained
within legal rules or political directives determined elsewhere. The
461
inspectorate presented themselves as subject to an external hierarchy of rules
both legal (the terms of the Act as interpreted by lawyers, especially the Law
Officers)and political (directivesfrom the Home Secretary).It seems apparent
that the attraction of the Crown lawyers was their association with the
'neutral' techniques of legal reasoning, apparently insulated from the
immediate policy needs of the administration. Their failure to see things from
an administrator'sperspectivewas thus in part a source of strength ratherthan
weakness. It enabled the inspectors to portray themselves as obeying an
independentlogic. Remember Horner's response to grave pressure from the
millowners in the relay controversy:
I declined to exercise a power of enforcing or not enforcing an important part of the law
according to my own discretion [NB], I showed every disposition to follow intructions
[original emphasis] from the Secretaryof State. It being the sole object of the appointment
of inspectors that they shall see to the observance of the Factory Acts, and their powers
being clearly defined by law [NB]. I ought for every officialact to have the warranteither of
the law itself, or of a clear definite instruction from the Secretary of State, issued at his
discretion and upon his responsibility[original emphasis].73

Hence, also, the close attachment to the independent legal authority of the
Law Officers, the desire to lose quasi-legislative and judicial powers which
made explicit the rule-making capacity of the factory inspectorate and its
ability autonomously to determine the meaning of factory regulation. Hence,
also, their desire to limit their discretion and clearly define their powers. The
law is presented as a direct, clear, controlling influence, and the inspectors as
passive, obedient, and self-effacing, the very model of 'legalist' propriety.
Of course, this presentation glossed over many of the realities of the
situation. Inspectors retained very broad discretion, most obviously in
relation to the decision to prosecute. This discretion remained essentially
unregulatedand continued to produce substantial variation in enforcement
practices between inspectors. It was thus in selective enforcement that the
inspectors retained the most pervasive control of the moral and economic
framework of factory regulation.'7 It was this selective enforcement that
enabled them in actual fact to qualify extensively the formal legal fencing
provisions of the 1844 Act until 1853, when the Home Office prompted full
enforcement. It was this discretion which enabled them to vary enforcement
on the state of trade and the economic pressure on masters, and enabled them
to take profitabilityinto account and to be aware (literally)of what the market
would bear.'7 The shift to closer external control of inspectoral discretion
must be seen as partially real, and as partially presentational, in the sense that
it sought to disguise the still extensive discretion in enforcement.

LEGAL FORMS, LEGITIMACY, AND SOCIAL CONFLICT

What is the significance of this detailed historical account to the sociologists of

law interested in theforms of law? Why should we care about this nineteenth-
century reconstitution of administrative forms? I have pointed out that much
462
of the developing sociological literatureon this subject has been constructed at
such a high level of abstraction that the contradictory nature of developments
in legal forms has been obscured. Here we have seen the rise of 'legalist' legal
forms, which are traditionally associated with the rise of laissez-faire and
liberal capitalism, at a point of increasing state intervention into the market.
We see, too, that 'legalist' and 'administrative law' forms, with their
contrasting emphasis on rules and discretion, should be seen as part of a
continuum. Important externally unstructured discretions remained for the
inspectorate. The move toward control by external rules was only ever partial.
When combined with the evidence of Arthurs's book, that different forms of
law co-existed during the nineteenth century and that some regulatory
agencies retained broad discretion and mixed quasi-legislative, quasi-judicial
and administrative powers, this re-emphasizes the need to explore the
contingencies shaping legal forms at a much more concrete level.
Furthermore, the factory inspectorate in the period 1830-50 ought to be a
highly significant point at which to analyse the relationship between general
social forces and concrete changes in legal forms. It is a period in which many
of the fundamental dilemmas of operating an urban industrial capitalist
society come to the fore. In particular, it is a period when these dilemmas are
openly reflectedin the form(s) of legal regulation adopted. Factory regulation
was not only at the heart of the vital struggle between classes (and within
classes) over the market economy, but it was also at the centre of this
reconstruction of law and state.76 This study suggests that the move toward
administration based on rules determined externally, rather than by exercise
of unstructuredor administratively self-structureddiscretion, was prompted,
among other things, by vigorous working-class critique. This critique
identified the state as bound to bourgeois interests, and official discretion as
shaped by class bias, and identified external control as a check on this
discretion: Arthurs rightly points out the constitutional objections made by
millowners and their lawyers in the name of the rule of law to the flexibility of
'administrativelaw'. But both millowners and factory operatives exploited the
inherited language of the free-born Englishman, with their talk of 'arbitrary',
'inquisitorial', and 'despotic' powers." This, to some extent this account
confirms the general thrust of the arguments of E. P. Thompson and Hall et
al.78 that the development of liberal rule of law forms (what Hall et al. describe
as the 'autonomization' of law) stems from the social struggle between
opposed social forces, and the importance to those struggles of perceptions of
the legitimacy of the state. Both stress the rule of law as a concession won by
working-class struggle and as therefore an expression of the strength of
working-class movements. But this study also suggests the need to qualify
such approaches.
Factory regulation was the product of a conflict between organized and
relatively (though not equally) powerful groups over the appropriate aims of
government, and especially the role of the market in capitalist economic
relationships. Crucial to the emergence of rule of law legal forms was some
kind of balance between them. For the emergence of rule of law forms, the
463
advocates of the free market had to be strong, but not too strong. If the
opposition to the factory owners had been less powerful or incapable of
effective organized protest, the administration of this area of social policy
might well have remained highly discretionary. This had been true of the 1802
Factory Act, under which 'visitors' were given broad powers and little
attendant structuring of their discretion in enforcing the Act. Such discretion
did not threaten the powerful interests of millowners, because the 'visitors'
made no attempt at effective regulation. Once the short-time operatives gained
the political strength and organization to get some kind of effective regulation,
millowners perceived that it was in their interests to place the superintendence
of rule of law forms on this power.
I do not argue that one can reduce the appeal of the ideology of rule of law
simply to the instrumental pursuit of self-interest. Large manufacturers like
Henry Ashworth, Richard Birley, and R. H. Greg often show a passion for the
rhetoric of the rule of law which should not be lightly dismissed as
disingenuous. Further, it would be surprising if the links between liberty,
justice, civilization, and the guarantees of the rule of law that stretch back to
Adam Smith and David Hume had left no mark. But, nevertheless, the
attitudes of businessmen to the rule of law lacked the consistency that would
allow an explanation in purely ethical terms. The millowners' advocacy here of
the rule of law must be contrasted with the business community's support
elsewhere for special tribunals of commerce and mechanisms of arbitration
which rejected legalism and judicial adjudication for 'natural' forms and
judgement by those schooled in business practice not law.79 This approach
would entrench the valued common sense of commerce rather than the
suspected common sense of the state servant.
Nor would I wish to reduce working-class support for rule of law forms
purely to perceived self-interest. E. P. Thompson's work points to a cultural
inheritance more substantial than this. But, nevertheless, if the balance of
power had swung more radically towards the working-class critics of the
market, greater discretion in the forms of the factory inspectorate might well
have been the result. The most radical demands of the short-time committees
were for various forms of self-enforcement, either through the appointment of
operative inspectors or inspectors elected on universal suffrage. If these
demands had been implemented, the operatives' desire to place external legal
checks on the inspectors might well have diminished. But the balance of
contending forces was such that neither side was confident that the animating
principles of inspection would entrench their view of what appropriate
regulation was about. Both groups therefore demanded external checks: the
essential pessimism of the advocate of rule of law administrative forms comes
to the fore. Both groups were prepared to sacrifice the possible 'benevolent
exercise of power's80 for some feeling of control. It is effective contending
forces that seem to have produced rule of law forms. This was not necessarilya
balance of forces describable in pluralistic terms, but each side had to fear the
power of the other to shape governmental/administrative enforcement. The
emergence of such forms thus demonstrated both the strength and the
464
weakness of the working-class reform movement.
Furthermore, this study suggests the role played by the perceptions of state
officials themselves in the placing of legal inhibitions on power. Such officials
perceived clear presentational advantages in espousing rule of law forms while
retaining discretion to place distinctive and controversial emphases on their
regulatory priorities. Certainly, in the process, their power to act oppressively
towards working-class operatives was reduced;but, paradoxically, so too was
their power to regulate benevolently in favour of the operatives. Given the
suspicions of the 1830s and early 1840s, this was a bargain the organized
working-class operatives were prepared to strike.
However one makes this final judgement, one point is clear: Professor
Arthurs's general thesis, though argued with great lucidity and elegance,
cannot explain the reshaping of the legal form of the factory inspectorate. He
is right to stress that administration may be neither arbitrarynor a rejection of
legal values. However, the interplay of different legal forms, legal ideologies,
and professional groups was, at least in the case of factory regulation, more
contradictory 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 of
regulation, were more ambivalent towards the forms of law. The reshaping of
the inspectorate was thus prompted by broader ideological and social forces
than the clash between the functional demands of flexible regulation and the
hostile obstruction of the legal profession and its powerful clients.

NOTES AND REFERENCES

1 H. W. Arthurs, Withoutthe Law: AdministrativeJustice and Legal Pluralism in 19th Century

England (1985).
2 D. J. McBarnet, 'Law and Capital: The Role of Legal Form and Legal Actors' (1984) 12
InternationalJ. 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 in
Law and Legal Ideology?' in Feudalism, Capitalismand Beyond (1975) eds. E. Kamenka and
R. S. Neale. See D. Nelken's critique, 'Is There a Crisis in Law and Legal Ideology?' (1982) 9
J. 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, Ideology and the State (1983) ed.
D. Sugarman, 256; and D. Nelken, 'Book Review: Without the Law' (1987) Public Law 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 Modern Society (1976) passim.
10 Institutional forms included delegated legislation, quasi-legislation, and adjudicatory
tribunals within independent regulatory commissions 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 &

465
 4 Will. IV, c.103, ss.17, 18, 33, 34, 41.
13 K. M. Lyell, Memoir of Leonard Horner (1890) at 290.
14 1844 Act to Amend the Laws Relating to Labour in Factories, 7 & 8 Vict., c. 15, s.2 and Ryder
v Mills (1850) S.C. 19 C.J.M.L. 82 (Exch). For a more detailed account of the general
transformation, see S. A. Field, Legal Forms, Legal Ideology and the Early Factory
Inspectorate(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 Economic History Rev. 423.
18 Letter from inspectors to the Home Office 29 November 1844, L.A.B. 15(2) p. 75, and
Saunders' report for the half year ending October 1847, PP. 1847-8 XXVI, 105.
19 Minutes of inpectors' meeting, 16 July 1844, L.A.B. 15(2)pp. 506, and minutes of meeting, 12
August 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. 187 ff.; letter from Waddington 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 Select
Committee on the Regulation of Factories, pp. 1840 X, Q. 2234, H.O. 87(1) p. 343, H.O. 45/
2265; minutes of meeting, 21 January 1845, L.A.B. 15(2); Saunders's report for the half year
ending 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, The Early Factory Legislation (1948) 126, and Arthurs, op. cit., n. 1, p. 156.
24 R. Cotterrell, 'Legality and Political Legitimacy in the Sociology of Max Weber' in Legality,
Ideology and the State (op. cit., n. 5), p. 76-7; R. M. Unger, Law in Modern Society (1976) 52.
25 Cited by Y. Dezalay, 'From Mediation to Pure Law: Practice and Scholarly Representation
Within 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. 1849 xxi.
28 H.O. 45/2265. For a failure to legitimate by these tactics, see the reaction of Greene, a
barristermagistrate 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. Bartrip and P. T. Fenn, 'Administration of Safety: The Enforcement Policy of the
Early Factory Inspectorate, 1844-1864' (1980) 58 Public Administrationand 'Evolution of
the Regulatory Style in the Nineteenth Century British Factory Inspectorate' (1983) 10 J.
Law and Society 201, and W. G. Carson, 'The Conventionalization of Early Factory Crime'
(1979) 7 InternationalJ. Sociology of Law 37, and 'Early Factory Inspectors and the Viable
Class 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 to
magistrates) which were very rare.
34 Op. cit., n. 12, s.41, and op. cit., n. 14, s.69; Ryder v 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 John
Fielden, 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, and
H.O. 45/2861.
36 Faced with a prohibition on the use of certiorarithey tried to get a magistrate to refuse to hear
a case, so that a mandamus could be used instead. When this failed, they devised a collusive
action by prosectuting a short-time committee member who was also a millowner. (H.O.
87(2) pp. 129-33 Letters, 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, 'The
Limits of Criminal Law' (paper presented in 1986 to Criminal Law 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, Voice of the People (1975) 353-65 for examples.
40 Arthurs, op. cit., n. 1, p. 136.
41 H.O. 87(1) p. 43, letter Home Office to 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, letter Phillips (Under-Secretary at Home Office) to Homer, 13 March 1837.
44 Arthurs, op. cit., n. 1, pp. 136, 140, 142.
45 For millowners' criticism, see R. H. Greg, TheFactory Question(1837) 129;first report of the
Select 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 General
Association of Millowners see the Manchester and Salford Advertiser,28 April 1838. For the
negotiations 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 report of 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. For
inspectors' acquiescence in the loss of quasi-legislative powers, 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. See
generally Kirby and Musson, op. cit., n. 39, pp. 390-2. For mill operatives' views on fining on
view, see report of Select Committee 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, Qs
1327, 3629-31, 3572. For Oastler's views see his Address to the Friends of Justice and
Humanity in the West Riding of Yorkshirefrom the Meeting of Delegates of the Short-Time
Committees,28 October 1833, White Slavery Collection, University of London. For Bull, see
B. L. Hutchins and A. Harrison, A History of Factory Legislation (1911) 56.
50 Arthurs, op. cit., n. 1, pp. 117-8;see also Sir George Cornewall Lewis's defence of such forms,
The Governmentof Dependencies(189 1, originally published 1841) 44.
51 Letter from Home Officeto Inspector Howell, 3 February 1846, H.O. 87(1) p. 425; minutes of
meeting 2 June 1846, L.A.B. 15(2) p. 240; letter from Home Office to Inspector Saunders, 20
May 1846; letter from Home Office to 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's report 14 April 1841, P.P. 1841 (311) x.
53 Report of the Select Committee 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 Natural
Rights (1980); J. Raz, The Authority 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 radical mill-operatives' attitude to factory regulation, see G. S. Jones, 'Class Struggle in
the 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 Struggle in the IndustrialRevolution(1974); P. Corrigan, State Formationand
Moral Regulation (Ph.D. Thesis, University of Durham, 1977); P. Richards, The State and
the Working Class 1833-1841 (Ph.D. Thesis, University of Birmingham, 1975), 'The State
and Early Industrial Capitalism' (1979) 83 Past and Present 91, 'State Formation and Class
Struggle, 1832-1848' in Capitalism, State Formation and Marxist Theory, ed. P. Corrigan
(1980); W. G. Carson, op. cit., n. 30; P. Corrigan and D. Sayer, The GreatArch (1985) ch. 6
59 N. Kirk, The Growthof Working-ClassReformism (1984); Jones, op. cit., n. 57; Foster, op.
cit., n. 58.

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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 International
Rev. of Social History 412. See also Corrigan, op. cit., n. 58.
62 Horner's report for the half year ending September 1842, pp. 1843 XXVII.
63 Saunders's report for the half year ending October 1848, pp. 1849 XII.
64 op. cit., n. 62 and n. 63, and Howell's report for the half year ending October 1847, P.P. 1847-
8 XXV.
65 J. Doherty, To the Operative Calico-Printers and Others of England (1833), cited by Kirby
and Musson, op. cit., n. 39, p. 275.
66 Manchester and Salford Advertiser 9 and 16 July 1836, and 15 January 1842; Kirby and
Musson, op. cit., n. 39, pp. 390-3; report of the Select Committee on the Regulation of
Factories, op. cit., n. 22, Qs 8471-3; report of the Select Committee on Combinations of
Workmen, 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) 50
Scottish Historical Rev. 18.
69 Reform meeting reported in Manchester and Salford Advertiser 5 March 1836. The
Dorchester men were, of course, the Tolpuddle Martyrs.
70 Stuart's report 31 December 1840, pp. 1841 (294) p. 191.
71 Report of the Select Committee on 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 references in 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; Bartrip and Fenn, op. cit., n. 30, p. 210.
76 P. Corrigan and D. Sayer, 'How the Law Rules' in Law, State and Society, eds. A. Hunt, D.
McBarnet, B. Moorhouse, B. Fryer (1981).
77 E. P. Thompson, The Making of the English 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 Yale Law J. 561.

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