Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.40 N° 73
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Diciembre
2022
Recibido el 15/03/2022 Aceptado el 22/05/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
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Vol. 40, Nº 73 (2022), 614-632
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Political and legal preconditions
for supervision and control over the
observance of factory law in Ukraine
DOI: https://doi.org/10.46398/cuestpol.4073.35
Halyna Lavryk *
Halyna Terela **
Viktoriia Orel ***
Abstract
The objective consists in the investigation of the mental,
domestic and cosmovisive requirements for the formation of
factory legislation and the institution of supervision and control
over its observance; to discover the ideological basis of the social
reform of intersubjective relations, the formation of ideas on the
content of the right to work in political and legal thought and, thus,
to be able to reveal the particularities of the organizational and
legal model of supervision and control in the imperial period. Taking into
account that legislation serves as an indicator of the legal materialization of
ideas and values, to determine the political and legal requirements for the
establishment of the institution of supervision and control of compliance
with factory legislation, an axiological approach, a set of general criteria and
special legal methods are used.It is concluded that the period initiated by
the bourgeois revolutions was accompanied by the search for an ideological
justication for the rapid changes and transformations in the development
of social relations in the eld of free labor. The factory inspections of the
Russian and Austro-Hungarian Empires, created on the basis of the English
model, were characterized by the ability to monitor compliance with factory
legislation.
Keywords: supervision; control; factory legislation; factory inspections;
ideology.
* Doctor of Law, Professor Head for the Department of Law, Poltava University of Economics and Trade.
36014, 3 Kovalya Str., Poltava, Ukraine. ORCID ID: https://orcid.org/0000-0001-5331-4327
** Candidate of History Sciences, Associate Professor, Associate Professor for the Department of Law
in Poltava University of Economics and Trade. 36014, 3 Kovalya Str., Poltava, Ukraine. ORCID ID:
https://orcid.org/0000-0001-5102-7068
*** Senior teacher for the Department of Law in Poltava University of Economics and Trade. 36014, 3
KovalyaStr., Poltava, Ukraine. ORCID ID: https://orcid.org/0000-0002-1474-1614
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Requisitos previos político-legales para la formación
de la institución de supervisión y control del
cumplimiento de la legislación fabril en Ucrania
Resumen
El objetivo consiste en la investigación de los requisitos mentales,
domésticos y cosmovisivos para la formación de la legislación fabril y la
institución de supervisión y control sobre su observancia; para descubrir
la base ideológica de la reforma social de las relaciones intersubjetivas,
la formación de ideas sobre el contenido del derecho al trabajo en el
pensamiento político y jurídico y, asi, poder revelar las particularidades
del modelo organizativo y legal de supervisión y control en el período
imperial. Tomando en cuenta que la legislación sirve de indicador de la
materialización jurídica de ideas y valores, para determinar los requisitos
políticos y legales para el establecimiento de la institución de supervisión
y control del cumplimiento de la legislación fabril, se utiliza un enfoque
axiológico, un conjunto de criterios generales y métodos legales especiales.
Se concluye que el período iniciado por las revoluciones burguesas, estuvo
acompañado de la búsqueda de una justicación ideológica para los rápidos
cambios y transformaciones en el desarrollo de las relaciones sociales en
el campo del trabajo libre. Las inspecciones de fábrica del imperio ruso y
austrohúngaro, creadas sobre la base del modelo inglés, se caracterizaron
por la capacidad de supervisar el cumplimiento de la legislación fabril.
Palabras clave: supervisión; control; legislación fabril; inspecciones de
fábrica; ideología.
Introduction
The implementation of the social function of the state, in particular,
the need for the latter to intervene in relations between employees and
employers to ensure social harmony as part of global peace remains relevant
and acute issue from the beginning of the free labor market. Political
powers, which are the expression of liberal ideology, minimize the role of
the state, focusing on the driving force of the free market and the freedom
of the individual from interfering in his personal life. Proponents of the
Social Democrats emphasize the need to maintain the decisive inuence of
the state on the sphere of wage labor.
The issue of delineating the limits of state intervention in labor
relations becomes especially relevant in connection with the need to
identify trends in the further development of labor legislation, creating an
optimal organizational and legal model of supervision and control over its
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in Ukraine
observance. The current state of public relations development in Ukraine
requires proper regulatory and institutional support (i.e. promoting the
implementation, protection and defense) of labor rights.
The search for political and legal solutions to regulate the sphere of hired
labor, in which the lion’s share of the population is involved, necessitates
taking into account the historical experience of labor relations, addressing
the origins of their formation, which correlates with the analysis of factory
law.
The formation of supervision and control in the eld of hired labor
was accompanied by its organizational and legal design in the form of the
institute of factory inspection in a number of European countries. The
legal system of Ukraine, whose ethnic lands in the late nineteenth century
were part of the Russian (85 %) and Austro-Hungarian empires (15 %)
(Hrytsak), was at the stage of «legal centralization and neutralization of
conditions for the development of national law» (Miroshnichenko, 2012:
188). At the same time, legal customs and traditions have left their mark on
law enforcement practice in these lands.
Legal thought of scholars at that time developed, showing attention to
the justication of the law concepts, distinguishing between police law and
rule of law, social nature of law, serving as: “…a kind of key to understanding
the laws, nature and trends of law that do not die with changing socio-
economic formations and undergo transformational changes in the process
of statehood development” (Zhygalkin, 2016: 137).
That was a time associated with the formal consolidation of substantive
norms in the eld of wage labor regarding the protection of the most
vulnerable categories – minors, women or those who determined the
peculiarities of working time accompanied by procedural rules aimed at
ensuring compliance with factory law. There was a demonstration of general
civilizational trends that the factory legislation of each state was formed
under the inuence of a number of political, socio-economic, ideological
factors, which led to specics of normative and law enforcement activities.
It is dicult to disagree with the opinion of the famous professor
O. M. Bykov, who served in the factory inspection and was directly involved
in the development of labor bills under the Provisional Government of
Russia, that «… factory laws may be more than any other piece of law and
closely dependent on general economic and cultural conditions of the
state»(Bykov, 1909: 269).
Another researcher of factory law, jurist, public gure L. M. Nisselovich
emphasized:
To determine with greater or lesser accuracy the reasons that caused this or
that change in law; to nd out, as far as possible, the views and principles that
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guided the legislature in this or that change: this is the task of the one who studies
the history of law (Nisselovich, 1883: XI-XII).
The ethnic Ukrainian lands became part of the Russian and Austro-
Hungarian empires in the late nineteenth and early twentieth centuries. The
aim is to explore both worldview mental and domestic preconditions for the
formation of factory law and the institution of supervision and control over
its observance, to clarify the ideological basis of social reform of bourgeois
relations, the formation of ideas about the content of the right to work in
contemporary political and legal thought, the peculiarities of organizational
and legal model of supervision and control in the imperial period.
1. Research methodology
The law serves as an indicator of the legal materialization of ideas,
values, ideologies that were dominant in society at a certain time and in their
peculiar intertwining in the communicative discourse of persons directly
involved in rule-making activities inuenced the formal consolidation
of legal norms. it is necessary to characterize the development of law in
the political and legal perspective from the standpoint of the axiological
approach.
Postulating the intersubjectivity of values, allowing to take into account
the bearers of the latter as an individual and society or humanity as a whole
(Gorobets, 2012) – axiological approach allows to consider the development
of law as part of legal reality, which is a reection of axiosphere and
normospheres in the aggregate of their unity and interaction. As Western
researcher E. Darian-Smith observes, «our conceptions of justice change
over time and they are linked to economic power, social values and moral
feelings that are not universal, apolitical or static» (Darian-Smith, cited:
Gryshchuk, 2019: 6).
The choice of methods was determined by the aim. During the study,
both general (dialectical) and general scientic (analysis and synthesis)
and special legal research methods (historical, teleological, formal and
legal) were used, based on the requirement of a comprehensive analysis of
political and legal phenomena.
The dialectical method made it possible to analyze the nature of the
change in ideology as a set of ideas and views, in particular, on the nature
of the social reform of bourgeois relations. The method of analysis and
synthesis provided an opportunity to critically comprehend and synthesize
scientic advances in the understanding of labor rights as an object of their
protection and defense.
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The historical method, thanks to the use of such techniques as
retrospective analysis, historical comparison allowed to outline the features
of factory law due to political and legal development, to determine the
causal patterns of the institute of factory inspection.
The teleological method allowed to determine the impact of direct
and indirect goals pursued by lawmakers in the development of factory
legislation. The application of the formal-legal method inherent in legal
research has allowed to focus on the subject and features of factory law in
general and the institution of supervision over its observance, in particular,
in terms of modern development of labor law.
2. Results and discussion
2.1. Ideological basis of social reform for bourgeois relations
The consequence of the bourgeois revolutions known as the «Spring
of the Peoples», which took place in a number of European countries in
1848-1849, including the Ukrainian lands of the Austrian Empire and the
Kingdom of Hungary (Bukovina, Galicia, Transcarpathian Ukraine), drew
attention to legal equality and freedom as principles that were the basis for
the formation of law rule on the basis of liberalism.
The Russian Empire embarked on the path of bourgeois development
after the abolition of serfdom in 1861, which began the transition from
class to class (civil) society in the preservation of autocracy and the political
regime of the police state, which left its mark on the nature of lawmaking
and law enforcement.
The police state, dating back to the period of enlightened absolutism in
Europe, was a kind of «secularized absolute monarchy based on theories of
natural law and social contract, according to which the monarch was given
power over his subjects for the common good» (Kholod, 2006a: 15). Such
a «common good» was understood as a public value, the responsibility for
the achievement of which, however, was assumed only by the state, while
acquiring a police character. Professor of Jurassic Imperial University
M. M. Belyavsky stated: «In the struggle for theories of socialism and
individualism, power and freedom, altruism and selshness, centralization
and decentralization, there are eorts of people to achieve the ideal of
public policy – the general welfare of citizens» (Belyavsky, 1904: 5).
The idealistic ethical trend that underlie the justication of the public
administration system in the police state is known as eudemonism,
dening «the basis of morality of man’s desire for happiness» (Dictionary
of Ukrainian language). The appointment of a police state was seen as
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contributing to the common good. Variations in the meaning of the term
«good» Academic Explanatory Dictionary calls «good, happiness», «… all
that a person needs in life» (Dictionary of the Ukrainian language).
A characteristic feature of eudemonistic theories (H. von Wolf, I. G. von
Justi), which V. M. Hessen called the «political philosophy» of the police
state, was «the smallest regulation of what is» important «for the state –
and everything is important» (Hessen, 1902: 5).
In 1871, the publicist R. I. Sementkovsky, in a preface to his translation
of Robert Mohl’s book, emphasized: «Life has too eloquently persuaded
governments to create a utopia» (Mohl, 1871: C. II).
As a reaction to the governance of the police state in the eighteenth –
rst half of the nineteenth century, the teachings of liberal individualists
became widespread in its classical manifestation with the value justication
of freedom as independence from the state (Hessen, 1902).
Four groups of arguments have been put forward in favor of this view:
(1) philosophical, which postulates the recognition of law as inherent in
human nature (J. Locke). It followed that the task of the state can only
be the protection of human rights, because the state itself people create
in accordance with the terms of the social contract for the protection of
natural rights; (2) the economic argument of the doctrine of the Physiocrats,
developed by A. Smith and his followers, about the non-interference of the
state in economic life as an integral condition of technological progress.
The state was given the role of guardian of the safety of the production
process; (3) a political argument put forward by representatives of the
liberal school (B. Constant, E. Labule), the main message of which was the
understanding of freedom not so much as participation in power, but as
independence from power; (4) psychological argument (W. Von Humboldt,
J. W. Mill) with the denition of human activity as a necessary condition
for their development: «the smaller the state, the greater the individual»
(Hessen, 1902: 10-11).
Thus, in the views of proponents of liberalism, the police state gave way
to the rule of law in its liberal interpretation – «minimal» state with the
least optimal impact on economic relations (Yakovyuk, 2000).
Such ideological messages actualized the process for formation of
objective law with its potential possibilities of introducing a model of formal
denition of rights, freedoms and legitimate interests of citizens protected
by the state. The period initiated by the bourgeois-democratic revolutions
in Europe led to the consolidation of the inalienable (natural) rights of
the rst generation, including the right to life and equality before the law.
Thus, the idea of natural human rights, nurtured by early modern thinkers,
began to be embodied in legal acts that consolidated the achievements
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of revolutions, reecting the views characteristic of classical liberalism
(Malinov, n/y).
These are so-called negative rights, which were aimed at protecting
a person from any unwanted interference or restriction that violates his
freedom. The importance of the state was to protect security and law and
order, to establish «rules of the game» that would reconcile public and
private interests. This approach to the role of the «gendarme state» was
substantiated by representatives of the individualistic theory of the law rule
(W. Humboldt, I. Kant, J. G. Fichte) (Hessen, 1902: 11).
The very term «rule of law» was introduced into scientic usage by Robert
von Mohl in the 30’s of the XIX century (Palienko, 1906). Experience of state
and legal development of a particular country, embodying the worldview of
the role and importance of law for state and social construction.
The history constitutionalism development in Austria, begun during the
revolutionary events in Europe in 1848-1949, was restored after a period
of reaction to the adoption of the December Constitution of 1867, which
dened the foundations of Austro-Hungary as a dual monarchy.
In Russia, the process of transforming unlimited autocracy into a
constitutional monarchy began during the revolution of 1905-1907.
Secretary of State J. S. Witte, commenting on the revolutionary events,
summed up: «Russia has outgrown the form of the existing system. It seeks
the rule of law on the basis of civil liberty» (Witte, cited in: Palienko, 1906:
134).
The liberal ideology of individualism negatively understood political
freedom as the non-interference of the government in private life and
seeing the need for legally equal actors for progressive development. It did
not solve the problem of economic inequality. The last issue was perhaps
the most acute and directly related to the political and legal justication of
models for regulating relations between workers and industrialists. As the
well-known Ukrainian jurist M. I. Palienko wrote in 1906, liberal politicians
defended formal freedom and:
Overlooked or even deliberately ignored the real freedom of the individual
and the interests of those economically oppressed social classes whose condition
could not be improved onlyby the guarantee of formal rights to freedom in the
implementation of the principles of the government non-interference, free
initiative and competition (Palienko, 1906: 146).
In the 80’s of the XIX century, in Austria, with the support of some
conservatives, a Christian social movement with demands for social
reformism was gaining ground (Lokhova, 2016). Against the background
of socialists’ calls for reforms based on social justice and state assistance to
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improve the situation of the impoverished, there was a revision of views on
the role and tasks of the rule of law, justifying the need for the latter positive
activities to improve the nancial situation.
Unable to stand the test of time, the principle of individualism was
gradually replaced by the tendency to ll the law with social content
(socialization) (Bostan and Bostan, 2008), ie the predominance of public
interests over the interests of individual members of society.
In the middle of the XIX century, German scholar F. Stahl dened the
essence of the law rule» – not that the state maintains the rule of law and
protects the rights of citizens without administrative tasks, but only in
the manner and nature of these tasks» (Palienko, 1906: 147). As a result,
the rules of police law were inferior to the administrative ones, which
determined the limits of the powers of state bodies in various spheres of
government on the basis of the expediency principle and legality.
In the post-reform Russian Empire, bourgeois reforms and measures
aimed at the legal consolidation of new social relations were accompanied
by a struggle between conservative and liberal bureaucracy, the line
between them was less signicant in resolving the labor issue. Proponents
of liberal views, especially economic liberalism from his “laissez-faire”
(from the French “allow doing”) did not see the need for state intervention
in relations between employers and workers based on the principle of
freedom of contract.
But in contrast to Austria, where the Liberals opposed the adoption of
social legislation by the conservative government of Taae, and the Social
Democrats put pressure, in the Russian Empire, according to Russian
economist and jurist V. P. Bezobrazov, “nothing like this struggle was”
(Bezobrazov, 1888: 13).
By the way, V. P. Bezobrazov, being a moderate liberal, supported the
legislative denition of mutual rights and responsibilities of industrialists
and workers, their judicial and administrative protection. At the same time,
the scientist warned “against any interference in the economic relations
between landlords and employees, in the economic content of the contract
and the resulting economic living conditions” (Bezobrazov, 1888: 111).
As a representative of conservative ideology, the founder of the idea of
social monarchy, which later transformed into the idea of the welfare state,
L. von Stein, appealing to his conclusions: “Public administration in this
area. Only in this sense we understand the task of the administration to
establish the order of labor in industry” (Bezobrazov, 1888: 112).
The theory of the welfare state emerged as a response of German
conservatives to the threat of revolutionary change, oering instead an
alternative to social reform “from above” (Kochetkova, 2008). L. von Stein’s
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position on the need for state regulation for stabilization was also accepted
by Austrian conservatives (Grandner, 1994). Reecting on the role of the
state, L. von Stein emphasized:
…governance should not provide personal development, spiritual, physical,
economic or social, but only the conditions for them”, in particular in the economic
sphere, government activities should be only additional. Only with the optimal
performance of the state’s function of internal governance “highest good can be
true freedom (Stein, 1874: 50-51).
L. von Stein saw the social function of the state not in the “subordination
of one interest to another, but in the harmonious resolution of these
contradictions” (Stein, 1874: 525). Aiming to nd a way to eliminate
contradictions in the state with the help of the state, the scientist proposed
a solution for the working class to “change its dependent position due to the
nature of labor, in an independent, materially free position” (Kochetkova,
2008: 70).
This could not be done by eliminating social inequality as such, but by
reducing its severity by creating decent living conditions for all citizens.
Thus, the property of liberal ideology was the justication of the rule of
law, which in the eld of labor relations was embodied in the requirement
of legal equality for workers and employers and freedom of contract.
Instead, the property of conservative ideology was under the pressure of
socialists and the threat of revolutionary change was the justication of the
welfare state with the need to inuence the latter to support the worker as
an economically weaker party to the employment contract.
Such ideological currents developed in parallel, being initiated by
social changes after the bourgeois-democratic revolutions, and continue
today in their new political variations to oer various political and legal
ways of regulating social and labor relations. At the same time, modern
scholars agree that «… social and legal state – are interdependent and
complementary features of a developed rule of law» (Vavzhenchuk, 2016:
320).
2.2. The right to work in political and legal thought of the late
XIX – early XX centuries
The ideologists of the welfare state drew attention to the value of social
rights, the need to resolve the issue of the labor ratio and capital with the
assistance of the state, which was widely discussed in scientic journals.
Thus, the scientist I. E. Andrievsky, who wrote the preface to the work of
L. Von Stein published in Russia, drew attention to the fact that the human
person, equal and free, can be that way under an integral condition – the
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right to work (Andrievsky, 1871: CXLIV). A. I. Elistratov considered the
right to work (the sphere of economic initiative of citizens) as a component
of the right to personal freedom, seeing in it «public-legal regulation of the
relationship between workers and entrepreneurs» (Elistratov, 1910: 88).
At the same time, there was no mentioning of legal consolidation of the
right to work at that time. As V. M. Hessen, a jurist, public and state gure,
ideological leader of the school of «revived natural law», emphasized in
lectures on police law given in 1901-1902 at the Alexander Military Law
Academy, «the right to work» is not recognized by the state» (Hessen,
1902: 372).
A lawyer, one of the founders of the Cadet Party, S. A. Kotlyarevsky,
reecting on the proclamation of the right to work in the Constitution of
the Second French Republic, concluded that this «… did not lead to any
results. There can be no serious legal claim where there is no awareness of
the objective possibility of its implementation «(Kotlyarevsky, 1915: 348).
The subject of legal regulation of relations between workers and
employers at that time was mostly the reduction of excessive working hours
of exhausting work, especially for vulnerable categories such as minors and
women, i.e. hygiene and safe working conditions, which were seen as part
of the right to life that was negative in its nature.
At the end of the XIX century, when the labor issue became relevant,
including due to the signicant increase in strikes, the right to a dignied
existence, which was associated with a positive understanding of the state’s
function to ensure it, began to be widely discussed by thinkers.
On the one hand, this process developed under the inuence of the
concept of socialists, on the other hand, it led to the transformation
of liberalism, the separation of its social diversity. S. A. Kotlyarevsky,
emphasizing that outside the socialist ideology strengthens the idea of the
right to a dignied existence of all citizens, concluded: «... the idea of the
right to a dignied existence is already something more than a pious wish:
it begins to bind the legislator, and we feel that such cohesion will only grow
«(Kotlyarevsky, 1915: 349).
Signicant contribution to the development of the right to a dignied
existence understanding, which was considered in close connection with
the right to work, was made by such jurists, philosophers, politicians
and public gures as S. M. Bulgakov, S. I. Hessen, B. O. Kistyakivsky,
P. I. Novgorodtsev, Y. O. Pokrovsky, V. S. Solovyov, representing mostly
the school of “revived natural law” and justifying the right to work as arising
from the right to life, ie relating it to natural human rights, the status of
which the latter had the best reason to claim all the rights of the “second
generation” (Malinov, n/y).
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Thus, S. I. Hessen included the right to work, the right to exist, the right
to a short working day in the catalog of “social and natural rights of man
and citizen” (Great Ukrainian Law Encyclopedia. Vol. 2: 138).
The appeal of thinkers to the problems of natural human rights with
the central idea of individual freedom testied to the protest against state
absolutism. It is urgent to mention philosophical and legal reections
of P. D. Yurkevych with his conclusion that “human rights depend on
their dignity…” (Yurkevych, 2001: 605). Among the social ideas of Lesia
Ukrainka, who drew attention to the promotion of human dignity as the
highest value (Donchenko, 2016).
Liberal legal idea in Ukrainian legal thought developed in the teachings
of M. P. Drahomanov with an emphasis on universal values, the priority of
the human person in the pursuit of happiness and prosperity (Kruglashov,
1992), the rationale that the “full will of every person” will always be the
goal for all governments” (Great Ukrainian Law Encyclopedia, Vol. 2: 251).
The socio-political ideal of Ukrainian scientist S. A. Podolinsky was civic
socialism, he meant a society in which the people govern and manage all
economic, political and cultural processes (Donchenko, 2016). In his work
“Crafts and Factories in Ukraine” he wrote: “Every working man should
have free access, on equal terms with all rights, to the work community to
which he has the greatest commitment…” (Podolynsky, 1880: 125).
Thus, the period initiated by the bourgeois-democratic revolutions put
on the agenda the consolidation of the rst generation rights. Its status was
claimed by the natural right to work. Without labor man can not ensure
his existence and the importance of creating safe working conditions. Their
provision was regarded as part of the realization of the right to life. This, in
its turn, necessitated the development of factory law.
2.3. Factory law, supervision and control over its observance
Returning to the post-reform (1861) events related to the preparation
of factory bills in the Russian Empire, it should be noted that there was the
competition between St. Petersburg and Moscow industrialists, intensied
during the economic crisis of the late 1870s – early 1880s. Ukrainian
economist, later Secretary General of Finance in the Government of the
Ukrainian Central Rada, M. I. Tugan-Baranovsky analyzed in detail the
reasons for the «humanity» of St. Petersburg manufacturers and «freedom»
of Moscow ones in the state intervention in relations between industrialists
and workers (Posse, 1906).
The government was inuenced by strikes and the spread of «secret
socialist propaganda among the workers» (Materials on the publication of
the law, June 2, 1897 on the restriction and distribution of working time in
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factories: 88). Making a historical digression of the procedure for adopting
factory legislation, V. M. Hessen concluded: «The development of our
factory legislation is not on the initiative of the government – but due to
external shocks, requests of manufacturers and, in part, workers’ strikes.
Hence its unplannedness, fragmentariness, contingency» (Hessen, 1902:
75).
In practice, this state of development of draft factory laws demonstrated
the contradictory nature of the work of commissions convened in Russia
in the period from 1859 to 1879 (chaired by a member of the Council of
the Minister of the Interior, chairman of the commission to revise factory
and craft statutes A. F. Stackelberg, Adjutant General P. M. Ignatiev,
Minister of State Property P. A. Valuev), and witnessed the general trend
for the principle of freedom abandoning in relations between labor, capital
and the accompanying principle for freedom of workers’ organizations,
workers’ representation and strikes, i.e. public instruments of protection
for employees’ legitimate rights and interests, which did not correspond to
the very nature of the autocracy (Kholod, 2006b: 175).
Thus, the Law of June 3, 1886 “On the employment of workers in factories,
plants and manufactories and the mutual relations of manufacturers and
workers” (Supreme Approved Opinion of the State Council, 03-06-1886),
providing for the conditions of conclusion, performance and termination
of the employment contract with the xation of the latter in the workbook,
testied to state intervention in the relationship between workers and
industrialists – holy of holies” liberal freedom of contract.
As a result, denying both workers and industrialists the freedom of
contractual relations, the tsar inevitably embarked on the path of public
care, interference from above in the labor relations of workers and
industrialists, their petty regulation to prevent labor conicts (Kholod,
2006b), demonstrating the implementation of the police state policy.
The main purpose of resolving the labor issue was to prevent workers’
strikes, which showed a steady upward trend. In this situation, the
government of the Russian Empire decided to put relations between
industrialists and workers “under the strict control of special oversight
bodies”, thus deciding “to further restrict the freedom of the employment”
(Materials on the publication of the law, June 2, 1897 on restriction and the
distribution of working time in the establishments of the factory industry:
5).
In the Russian Empire, the establishment of factory inspections was
initiated by the Law «On Minors Working in Factories, Factories and
Manufactures» of June 1, 1882 (Supreme Approved Opinion of the State
Council, 01-06-1882). In Austria-Hungary, the Law on Labor Inspections
was adopted on June 17, 1883.
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Relations, which were subject to the rules of supervision and control,
they had purely administrative, organizational and public law feature. At
the same time, these relations have become those regulated by factory laws
and have since been associated as an integral part of factory (industrial,
labor) law in terms of their law enforcement and human rights goals and
social purpose.
However, at the time of formal consolidation of such norms, factory law
was a sub-branch of police (administrative) law, which was determined by
the nature of the policy implemented in practice.
In general, factory law had a number of features. First, it was of a
guardian nature. The latter was clearly evident in the legal framework of
factory inspectors, who, in addition to the power to oversee compliance with
the law, could interfere in relations between workers and industrialists,
prevent conicts and promote their settlement, care for workers, education
of minors.
The purpose of these measures was to ensure «public peace», prevent
strikes, which, on the one hand, provided for the supervision of workers,
on the other – obliged industrialists to improve working conditions. A
contemporary of the events, economist V. P. Bezobrazov, responding to
the condition of law, wrote about the preventive activities of the factory
inspection, that «… is generally in the care for the mutual relations of
masters and workers…» (Bezobrazov, 1888: 56).
The scientist justied the need for its functioning as a special body of
the police state, of course, understanding the latter as a characteristic of
that time interpretation as a public administration body and the transfer of
inspection from the Ministry of Finance to the Ministry of Internal Aairs
«not only useless but harmful, capable of increasing the arbitrariness of
police actions and causing various abuses»(Bezobrazov, 1888: 62, quoted
by Kupriyanova).
However, the Law of the Russian Empire of June 3, 1886 and the
adopted «Rules on the Supervision of Factory Industry and the Mutual
Relations of Manufacturers and Workers» enshrined the guardianship
nature of supervision, which reected the essence of police policy on
labor issues. Reacting to such changes, V. M. Hessen commented: «The
government does not have a social program. Current law is the product of
police considerations, not social policy» (Hessen, 1902: 313).
In support of his conclusion, the scientist cited, for example, unresolved
at the law level, issue of sanitation in factories, which was extremely
important from a social point of view, but was of secondary importance
from the police point of view, because of unsanitary work conditions, will
not lead to strikes (Hessen, 1902). The same opinion was held by L. S. Tal,
noting that statesmen in the nineteenth century were guided mostly by
«police and nancial considerations rather than social motives» (Tal, 1918: 6).
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Secondly, the factory legislation of the Russian Empire was largely
based on Western European legal acts. Thus, the law of England was taken
as the basis for the legal regulation of factory inspections. This had its
positive aspects, at the same time the haste in the preparation of the bills
«by stationery on strange… foreign models» (Bezobrazov, 1888: 18) with
balanced consideration of the state of domestic development, international
standards and national characteristics.
However, at that time the specics of the organizational and legal basis
for the factory inspection in the Russian Empire was determined by the
political regime of the police state, embodied in the remnants of serfdom,
lack of free labor traditions. Austria was called the most similar to Russia
in the organization of labor supervision among all the countries of Western
Europe (Bykov, 1909).
This commonality between Russian Factory Inspection and the Austrian
Industrial Inspection, and at the same time the dierence between the
latter’s activities and those of the British Inspection, was oversight of
internal labor regulations, which was seen as interfering with freedom of
employment and guardianship of policies.
Thus, Austrian Factory Inspection, like Russian one, was a centralized
system of bodies within the Ministry of the Interior Arrairs, acting as a
mediator to prevent and resolve conicts between workers and industrialists,
overseeing the living conditions of workers and educating minors (Bykov,
1909). However, in 1900 about 93.3 % of Ukrainian population of Galicia
and Bukovina was supported by growing crops, 2.5 % received income from
shing, and 1.7 % from trade, the industrial population, which came under
the supervision of factory inspections was small (Levynsky, 1914).
Third, one of the shortcomings of the factory laws was the lack of dened
legal liability and specic sanctions for violations of regulations, which led
to ineective legislation and complicated supervision and control activities.
In particular, most of the complaints were about the implementation of the
Law of the Russian Empire “On the duration and distribution of working
time in the factory and mining industry” of June 2, 1897.
In the Journal of the meeting of senior factory inspectors of the Kiev
district from April 1, 1900 it was noted: “Thus, it is extremely dicult,
almost impossible, to establish the fact of the agreement coercion with the
workers to serve as a basis for bringing managers to justice” (CDIAC of
Ukraine. F. 574. D. 1. C. 205. P. 58-59).
The article of the newspaper «Halychanyn», presenting the report by
the industrial inspector A. Navratila on Galicia and Bukovina in 1892,
complained that the institute of industrial inspectors «has weak sta and
is deprived of the right of execution (the right to enforce decisions)» (The
labor movement in Ukraine (1885-1894): collection of documents and
materials: 304).
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in Ukraine
The guardianship nature of the supervision was also evidenced by
the subject of its implementation, which was dened quite broadly and
required additional interpretation, as it provided for the observance of
«proper landscaping and order». Landscaping is understood as «good
ordering, provision of everything necessary; orderliness» (Dictionary of
the Ukrainian language), and the term order is generally ambiguous and
in relation to the previous term implies a state when everything is done,
performed properly, in accordance with certain requirements, rules, etc.;
order» (Dictionary of the Ukrainian language).
That is, on the one hand, we have the use of those concepts that
characterize the component of police law – police improvement, on the
other hand, we note the use of evaluation terms, which did not contribute to
the eective implementation of supervisory activities. As V. P. Bezobrazov
noted, «The surprises, diculties and complaints of the industrial world
about the introduction of new factory orders are explained by some
very signicant shortcomings of the laws: incompleteness, ambiguity,
contradictions, and practical inconvenience in many of them» (Bezobrazov,
1888: 18).
The subject of supervision was specied in determining the powers of
the factory inspection (Article 54 of the Statute of Industry of the Russian
Empire), namely: (1) supervision of the implementation of regulations
on the employment of minors and their attendance at primary schools;
(2) overseeing the implementation of mandatory regulations and rules
issued by the Chief of Factory and Mining Presence; (3) monitoring the
compliance of manufacturers and workers with the rules that dened their
responsibilities and the relationship between them; (4) supervision of
compliance with the rules on steam boilers; (5) supervision of compliance
with the rules on the distribution and duration of working time (Factory
laws. Collection of laws, orders and explanations on Russian factory law:
160-161).
Thus, supervision was exercised over the implementation of legislative
provisions and over the rules of the procedure. As the terms of employment
were recorded in the established payroll and the oral form of the employment
contract was not allowed, the compliance with the terms of the contract was
subject to the inspections.
It was the intervention of inspectors that caused the greatest
dissatisfaction among industrialists. Private Associate Professor of Kyiv
University V. Ya. Zheleznov, researching in the early twentieth century the
factory law, came to the conclusion of its importance, which was the gradual
recognition and implementation of the «principle of social regulation and
control in the industrial sphere» (Zheleznov, 1903: 56).
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Conclusions
The period initiated by the bourgeois revolutions was accompanied
by the search for ideological justication for the further development of
social relations in the eld of free labor that emerged as a result of serfdom
abolition. At the same time, the achievement of liberal ideology was the
substantiation of the rule of law features. It was embodied in the form of
the of legal equality requirement for workers, employers and freedom of
contract in the eld of labor relations.
The achievement of conservative ideology, although under pressure from
socialists and the threat of revolutionary movements, was the justication of
the welfare state with the need to inuence the latter to support the worker
as an economically weaker party to the contract, isolating the «social idea
of governance.»
This was a period for the formal consolidation of the rst generation’s
rights. At the same time, the right to a dignied existence, which was
associated with a positive understanding of the state’s function to ensure
it, began to be widely discussed by jurists, especially representatives for
the school of «revived natural law», laying the ideological foundations.
Such processes necessitated the development of factory law with the
establishment of labor protection norms for minors, women, occupational
safety, health, organizational and legal mechanism for their observance to
be reected in the institute of factory inspections.
The English-style factory inspections for both the Russian and Austro-
Hungarian empires were characterized by the possibility of overseeing the
compliance with legislation, internal labor regulations and workbooks as
interfering with the freedom of contract and certifying the guardianship
policy of the state characterized by detailed regulation of social relations
in the eld of hired labor. At the same time, the lack of dened legal
responsibility and specic sanctions for regulations violation caused
ineciency of both legislation and activities to supervise and control its
observance.
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