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BOOK REVIEW
The Making of Law: The Supreme Court and Labor Legislation in Mexico,
1875—1931, William J. Suarez-Potts, 2012 (Stanford CA,
Stanford University Press, 360 pp.)
reviewed by Luis F. Gomez†
I.
INTRODUCTION
Today, Mexico has a comprehensive legal system regulating labor and
employment relations; however, until the end of the nineteenth century,
Mexico simply relied on basic contractual relations theories. A generalized
misunderstanding of the origin of Mexico’s labor regulation has
inaccurately portrayed it as an achievement of the Mexican Revolution. In
The Making of Law, Suarez-Potts undertakes the endeavor of dissecting the
early development of Mexican labor law, as it originated throughout one of
the most convoluted periods of Mexico’s history, to demonstrate the
existence of the Mexican Supreme Court’s judge-made labor law. Further,
the book demonstrates how the sui generis labor case law, created from
1875 through 1931, became the general framework of Mexico’s labor
legislation.
It has been established that the origin of Mexico’s labor regulation
predates the Mexican Revolution and that the consolidation of its
framework occurred well after the armed struggle had ended. Therefore, a
full study of the origin of labor law must span over three critical periods of
Mexico’s history: the nineteenth-century liberal governments under the
Constitutional of 1957 (including “The Porfiriato”), the Mexican
Revolution, and the post-revolutionary governments under the Constitution
of 1917. Suarez-Potts systematically analyzes the role of the Mexican
Supreme Court, and the impact of its decisions, throughout these stages.
Because the three relevant periods are characterized by opaque
governments, armed uprisings, and a limited rule of law, a comprehensive
study must take into consideration a variety of events and participants that
contributed to the development of labor law. Amongst the most significant:
the contributions of legal scholars, the influence of foreign doctrine, the
† International Case Counsel, International Centre for Dispute Resolution of the American
Arbitration Association; Attorney in Mexico and the United States.
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military decrees of the revolutionary generals, the contribution of
Presidents, the influence of several Governors, the influence of organized
labor groups, the efforts of organized industrialists; the debates at the
Constitutional Convention, the effect of several state’s legislation, the
debates during the passage of the 1931 Federal Labor Law, and the relevant
judicial decisions. By integrating the judicial decisions to the overall
context of the convoluted historical period, Suarez-Potts achieves the
complicated task of demonstrating the relevance judicial decisions had in
shaping the labor law of a country with a civil-law system, a weak
judiciary, and very little rule of law. Suarez-Potts goes even further and
presents the Mexican Supreme Court’s decisions as a sort of judge-made
law that went on to become the foundation of Mexico’s codified labor
regulation
II.
CHAPTER ANALYSIS
The Making of Law is divided into 8 chapters, each covering a
different angle of the three relevant historical periods involved in the
creation of Mexico’s labor regulation. The chapters advance
chronologically through the process that moved Mexico’s labor regulation
away from the nineteenth-century legal liberalism into a legal framework
that assigns an active role to the State. In over five decades, Mexico’s legal
system went through a fundamental transformation resulting in an
aggrandized State that is now involved in social issues and tasked with
balancing the interests of labor and capital.
In the introduction to The Making of Law, Suarez-Potts presents a brief
explanation of Mexico’s convoluted historical context at the end of the
nineteenth century and provides readers with the required background in
Mexico’s legal system and the Mexican Judiciary. In particular, Suarez
Potts explains how the Mexican Supreme Court worked almost
continuously throughout the difficult period, breaking only for the most
tumultuous years of the revolution. The highest court also maintained a
semblance of independence from the executive branch. Suarez-Potts
proposes that during this period the high court actually exhibited greater
independence as the executive and legislative powers struggled throughout
the Mexican Revolution. Suarez-Potts’s analysis pays particular attention
to the juicio de amparo, the principle legal mechanism to seek the
protection of an individual’s constitutional rights. These proceedings
commence with a petition for injunctive relief against the action of a public
authority, including the application of a law that violates a constitutionally
protected individual liberty of an individual, or against an order requiring
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public authorities to carry out an action or refrain from doing so.1
Decisions in the juicio de amparo proceedings are limited in scope to the
case at hand and do not set precedent.2 However, a methodic analysis of the
published decisions constitutes the basis for Suarez-Potts’s chief
proposition: that the Supreme Court’s juicio de amparo decisions became
de facto judge-made law that had a significant impact in shaping Mexico’s
labor legislation.
The first chapter begins with an overview of the liberal precepts that
produced the first worker’s rights in Mexico. These notions were included,
by liberal intellectuals, in the articles of the Constitution of 1857. Since
then, Mexican workers have had the right to work, to organize, and to
strike. The theoretical underpinning of worker’s right was the liberal belief
that the state should not interfere with economic actors. For this reason,
both workers and employers were left to enter contracts voluntarily.
Suarez-Potts demonstrates the Supreme Court’s alignment to these liberal
precepts throughout the pre-Porfiriato era. This chapter is particularly
significant as the Constitution of 1857 laid the legal framework for
worker’s rights before and throughout the decades long Porfiriato.
Chapter 2 analyzes the Supreme Court’s approach to worker’s rights
during the long rule of President Porfirio Diaz. The Making of Law
systematically presents evidence, in the form of juicio de amparo rulings,
showing that the high court affirmed worker’s freedom of contract and the
principles of free labor. Although the cases presented are only of
agricultural works, as the court seemed to avoid taking review of industrial
cases, it is noteworthy that the Supreme Court would apply the 1957
Constitution in the defense of those workers able to submit their petition to
the highest court. Significantly, the juicio de amapro cases brought before
the court show a widespread abuse of Mexico’s agricultural workers. The
Court’s rulings constantly enjoined local authorities in the cases before it.
However, the filings evidence the wide-spread servitude-like conditions,
egregious abuse, and callous exploitation suffered by Mexican workers.
Chapter 3 contains a full analysis of worker’s right during the rule of
President Diaz. It was during President Diaz’s rule that the country
industrialized creating the need to regulate industrial relations to deal with
an increasing amount of strikes. Suarez-Potts explains how the Diaz
dictatorship kept constitutional and legal forms of rule since Diaz’s very
legitimacy relied on maintaining liberal, legal, and constitutional forms.
For this reason, the legislative and judiciary powers were also active in
determining worker’s rights during President Diaz’s regime. The need to
1. WILLIAM J. SUAREZ POTTS, THE MAKING OF LAW: THE SUPREME COURT AND LABOR
LEGISLATION IN MEXICO, 1875–1931, at 5 (2012).
2. Id.
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keep constitutional form also allowed the Supreme Court to continue
upholding the rights of free labor and freedom to contract in the limited
amount of cases coming before the highest court. Concurrently, Congress
began debating the need to address “the social issue” and the Diaz regime
also began the process of exploring approaches to regulating industrial
relations. The President’s circle of advisors, knows as Los Cientificos,
prepared mostly repressive labor legislation. Ignoring Mexican and foreign
legal scholars furthering the incipient theories of social legislation,
Mexico’s Ancien Régime failed to adapt to the rapidly changing social
environment brought by the industrialization of the country.
In chapter 4, the analysis focuses on the first expressions that furthered
the notion of social legislation. The limited efforts of a few state
governments together with articles published in Mexico were the first
manifestations to shine a spotlight on social issues. The articles published
mostly European legal concepts. Together with the influence of the French
legal intellectuals and German jurists, the Catholic social doctrine also
influenced the debate in Mexico. Critical of liberalism, the Catholic
Church’s evolving response to the social question marked an important turn
for Mexico and Latin America. The articles and theories led state policy
makers to consider socially oriented solutions to multiple interrelated social
problems. However, the Diaz government did not address any of these
social issues fast enough, igniting the Mexican revolution and bringing the
end of the decades-old regime.
Chapter 5 analyzes the process of legislating labor law during and after
the Mexican Revolution. Reviewing the events related to the development
of labor law, the chapter carefully reviews the significance of the
establishment of the Federal Labor Department and the formulation of
article 123 of the post-revolution Constitution. Throughout the Mexican
Revolution, the unions forged alliances with governors and generals. The
turmoil of the revolution allowed industrial workers to organize outside the
control of the government. Different labor organizations, such as La Casa
del Obrero Mundial (COM) and the Confederacion Regional Obrera
Mexicana (CROM) were created. President Obregon, a revolution general,
governed through a compromise with regional strongmen who many times
were allied to organized labor. Therefore, the most important labor union,
the CROM, became a key player in local and national politics. In this
setting, the reestablished Mexican Supreme Court began adjudicating labor
disputes and immediately became involved in major political and social
conflicts developing in several states. For the first time in its history, the
highest court was involved in the organization of industrial relations.
In the post-revolutionary reality, the President was not always
constitutionally enabled to address labor relations. At the time, Congress
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was also unable to pass labor legislation. Therefore, the Mexican Supreme
Court had a new role as the only federal power able to counter the state
government’s labor policies. Most of the local labor regulations reflected
the influence gained by the unions and disparately advanced workers’
rights. The new role of the Supreme Court was carried out via juicio de
amparo decisions, which Suarez-Potts carefully analyzed to show the
impact the court had on the development of Mexico’s labor regulation.
Chapters 6 and 7 analyze the Court’s decisions before the passage of
the Federal Labor Law of 1931. Through a methodic and detailed analysis,
Suarez-Potts demonstrates how the Court molded labor regulation and
guided labor relations throughout the 1920s. As the executive power
developed boards of conciliation and arbitration to hear labor cases, a
Supreme Court juicio de amparo decision determined that these bodies
were the appropriate governmental bodies to adjudicate labor conflicts.3
Later on, the high Court kept its prominent role of harmonizing labor
regulation by interpreting the board’s awards.
The legislative vacuum, created by the lack of federal labor regulation
between the promulgation of the Mexican Constitution in 1917 and the
passage of the federal labor law of 1931, turned the Supreme Court’s juicio
de amparo decisions into a sort of labor case law. Against all civil law
notions, the Court’s juicio de amparo decisions are presented as judgemade law that formed legal-doctrine and endured as the foundation of
Mexico’s labor regulation. The Making of Law’s original contribution
defies the notion that as a civil-law court the Mexican Supreme Court did
not create judge-made law, particularly not through the juicio de amparo
decisions. Most importantly, the methodic analysis of the court’s decisions,
throughout these two chapters, convincingly demonstrates how the Supreme
Court created labor law and transformed the labor relations system.
In chapter 8, Suarez-Potts presents an overview of the multiple
attempts to codify labor law, building up to the process that produced the
Federal Labor Law of 1931. From the previous chapters, Suarez-Potts
tracks the contributions of legal scholars, military decrees, presidents,
organized labor groups, organized industrialists, the key delegates of the
legislature, and the relevant judicial decisions. The book recounts the
attempts by the administrations of Presidents Calles and Portes Gil to pass
federal labor regulation. Then, the unions were unsuccessful in achieving
the passage of a worker-friendly federal labor law at the height of their
influence. The administration of Ortiz Rubio’s successfully established a
technical commission that oversaw the passage of the Ley Federal del
Trabajo in 1931. The last chapter of The Making of Law displays the
3. Id. at 215.
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country’s full transition from a purely liberal doctrine to social legislation in
Mexico’s labor regulation and highlights the role of judge-made law in the
process.
III.
CONCLUSION
The Making of Law does more than survey the development of labor
legislation and the contributions of the Mexican Supreme Court between
1875 and 1931. The author guides the reader through the historical process
underscoring the court’s influence in shaping social legislation. SuarezPotts’s well-documented labor law research supports three significant
conclusions. First, the Mexican Supreme Court’s participation was needed
due to the political and social conditions of the Porfiriato, the Mexican
Revolution and the post-revolutionary governments. Second, the liberal
framework of the Constitution of 1857 left the Supreme Court operating in
a legal vacuum until the enactment of the Constitution of 1917 and the
promulgation of the Federal Labor Law of 1931. Last, to fulfill this central
role throughout 1875 to 1931, the Supreme Court created judge-made labor
law, which eventually framed Mexico’s labor legislation. As
counterintuitive as it may appear, Suarez-Potts establishes that the Mexican
Supreme Court’s juicio de amparo decisions must be studied to fully
understand the origin of labor regulation in Mexico.