Toward Social Legislation
provisions. The eminent jurist Jacinto Pallares drafted the statute with the collaboration of Rodolfo Reyes, son of the state’s governor.12 Pallares, in the first paragraph of the statute’s statement of purpose, announced the pioneering step that the proposed law represented:
The attribution of civil responsibility to employers or owners of industrial companies for work accidents is a new juridical creation. It is based on a concept entirely distinct from that which grounds the established one as a consequence of an act or omission contrary to a penal law, since the latter is not applied, as is natural, to the act of the person who suffers the accident. The cases of responsibility prefigured by the penal code . . . have exclusive origin in an infraction of the law, while, for equitable and social-economic reasons, of various nature, the modern industrial movement requires the existence of special dispositions to provide for the indemnification of the worker prejudiced by an unforeseen event, equalizing thus, as far as is suitable, the cooperation of the two elements of wealth: capital and labor.13
The statement further explained that modern, mechanized industry increased the risk of injury for which neither the worker nor employer was responsible; hence, for equitable reasons, the enterprise should be charged with compensation. It referred to European workers’ accident legislation, centering on the concept of occupational risk (riesgo profesional) as well as alternate theories of liability. Significantly, Nuevo León’s legislation omitted the main railway companies.14
Specific federal laws and contracts covered the railways, without contemplating their industrial relations. Nor did federal courts, despite much litigation that arose from incidents occurring on the railroads that implicated workers. An engineer abandoning a train in transit provoked one exceptional legal discussion in the 1890s regarding the need for federal legislation to regulate the employment of railroad workers. The railway company’s legal counsel sought the advice of the Ministry of Communications, which in turn asked the Ministry of Justice and Emilio Velasco if existing legislation provided a sufficient sanction for the engineer’s conduct.15 The Justice Ministry opined that the executive could promulgate a regulation to punish such a worker under the constitution’s Article 21. The lawyer Velasco, who twenty years earlier had attracted Guillermo Prieto’s attention with a defense of the right to strike, proposed promulgating a law analogous to the penal code’s Article 925. Another lawyer, Rafael Rebollar, did not believe that the abandonment of the train by one worker resembled the situations covered by Article 925 and found that Article 486 of the same code was applicable.16 No legislation ensued.
More than a decade later, rail workers’ organizing successes and strikes led the Díaz administration to begin drafting labor legislation. On April 9, 1907, Limantour wrote Corral about the Gran Liga Mexicana de Empleados de Ferrocarril, which he was closely monitoring (one year before it initiated a major strike).17 Limantour stressed the Liga’s objective of requiring all workers entering into the service of any railway company to join its organization. Anxious about “such exorbitant pretensions that could be so prejudicial to the public service,” Limantour had advised the president to charge one or two persons with the preparation of a bill to prohibit this type of organization in the area of public services. He alluded to legislation in other countries that prevented the formation of any association of public employees not related to mutual aid, charity, or recreation. Now Limantour requested that Corral discuss the situation with Díaz and designate the people who could undertake the pertinent studies.18 Corral replied at the end of the month, mentioning newspaper clippings reflecting questions about socialism and unions of public service employees.19 He had passed the material to Rosendo Pineda, a key científico adviser of Porfirio Díaz, recommending that he occupy himself with this matter.20 The federal executive proceeded to draft labor legislation that reportedly would have introduced mandatory arbitration and harshly sanctioned strikes. But it never publicly circulated any labor legislation or submitted it to Congress.21
In 1908, the draft revision of the mining law prepared under the auspices of Olegario Molina, secretary of the federal Ministry of Development (Fomento), initially subjected employers to limited responsibility for occupational accidents.22 Foreign interests became alarmed with this proposed reform and the provision restricting ownership of properties in border states. Daniel Guggenheim, a principal in major American mining interests in Mexico, in a letter to Díaz, lambasted the proposed accident compensation provision, threatening that it was “bound to introduce an amount of risk as well as of actual expense far beyond the amount that can be warranted by the profitableness of the business.”23 Molina, in a memorandum, responded to Guggenheim’s accusation by pointing out that the draft mining code provision limited liability to where the employer had failed to comply with existing safety regulations and was consistent with Mexican law, European and American workers’ compensation statutes, and humane practices.24 The mining law passed in January 1910 omitted the employer liability provision.25
Molina similarly dealt with labor matters in the textile industry that resulted in another indecisive outcome but nonetheless would be a precursor of future developments. The Pueblan labor leader Pascual Mendoza lobbied Limantour in early 1907 for an industry-wide raise in the wage rate to be effectuated through the government’s reduction of a textile tax.26 Then Mendoza met Molina to discuss a new wage rate for workers in Puebla and Tlaxcala, without reaching an agreement.27
By 1907, after the strike and lockouts in Puebla and Veracruz, the official Mexican press took note of the growing sentiment for labor legislation to address the social question in foreign countries. Approximating in time Dehesa and Díaz’s venture with Orizaba’s prefect to fashion a new reglamento in Río Blanco, El Imparcial, in an editorial in July 1907, related ongoing discussions in Europe and Argentina to regulate industrial relations, including experiments in legislation, in the face of strikes.28 The editorial saw Díaz’s January 1907 arbitration award, and specifically its regulation of child labor, as the keystone of the new edifice of labor legislation in Mexico. It found promising the Monterrey News account of Albert de Mun’s proposal for labor councils (Consejos de Trabajo), published in Le Figaro. El Imparcial explained: “These organizations would be the mechanism by which the labor contract would be transformed from an individual one as it currently is, into a collective one. The council would be in effect the organization that would sanction the contract celebrated today between the employer and employee.”29 It would operate as an institution more sensitive to the needs of both capital and labor in the resolutions of their disputes arising from the employment contract. Lastly, the councils would be capable of determining work rates and the supply of labor in a region.
In the period 1906–8, while El Imparcial pondered foreign examples of social reform, various Mexican initiatives for labor legislation were considered, although none was enacted into law. At its convention in July 1907, the Unión de Mecánicos Mexicanos formulated a program that could have served as the basis for labor legislation.30 Among the nineteen points set out in its “Definitive Program” was the recognition of arbitration as one of the best means to resolve the difficulties between capital and labor. The program retained the right to strike, declaring that the demands of capital and its disregard of labor’s interests caused strikes, to which labor resorted for its preservation.31 Meanwhile, Dehesa charged the highly regarded jurist Silvestre Moreno Cora with the drafting of labor legislation for Veracruz.32 Nothing, however, was enacted. Similarly, in April 1908, the president of the Academia Central Mexicana de Jurisprudencia, the lawyer Luis Méndez, discussing the social question, suggested the need for a national labor law, particularly a workers’ compensation statute.33
In July 1906, the PLM published its program outlining a number of minimal demands to address the indigence and exploitation of Mexican workers, both agricultural and industrial. The points, enumerated under the title of “Capital and Labor,” called for an eight-hour day and minimum wage, to vary across the country depending on local costs of living. The program also stipulated canceling all debts of agricultural workers, weekly payment of wages, workers’ accident compensation, and the prohibition of fines and wage deductions. The program would, lastly, have obliged employers to provide safe working conditions and sanitary housing and proscribed the employment of minors younger than fourteen years of age. It did not mention the labor association or the right to strike or otherwise dispute employers’ rights and property interests. The program intentionally remained within a liberal framework, juxtaposing its demands against the Porfirian dictatorship’s repeated violation of the 1857 constitution.34
LEGAL THEORY AND THE SOCIAL QUESTION, CA. 1895–1907
Twenty years after Prieto emphasized the importance of political economy for law and workers’ rights, Emilio Pardo Jr. contended it was a monstrous error to legislate on behalf of workers social and labor regulations that countered the natural laws of political economy. Like Prieto, Pardo believed that political economy and law were intertwined. But for the latter, a lawyer, minister to Belgium, and professor at the prestigious Escuela Nacional de Jurisprudencia in Mexico City,35 the social question now pressed against the civilized world, along with the threat of socialism.36
Pardo dutifully acknowledged the importance of Comtean positivism and sociology, then the dominant ideology among the científico elite.37 He discerned within sociology the disciplines of political economy and law, proposed that political economy was the most developed of the sciences composing sociology, claimed not to privilege either discipline, and concluded that positive law, or legislation, should adhere to the laws of political economy.38 Pardo almost recognized juridical principles as natural laws analogous to those of political economy, yet he rejected the conception of an immutable natural law for a historicized account of the evolution of law in a changing social context. Apparently, the historical school of law influenced him. But Pardo did not wish to replace an absolutist standard with a complete relativization of norms nor to collapse legal doctrine into a social science.