(Disclaimer: Long post ahead, mostly a translated excerpt from an archive. But it might be engrossing, or so I hope.)
Namaskar/Salam,
If you remember, a few years ago (oh, ‘tis already a long ago …), Swaraj and I penned a series called IP Reveries, problematizing intellectual property rights, their theoretical justifications and history through a hypothetical classroom setting.
Well … Guess what?
While rummaging through some 19th-century archives recently, I lit upon a text from 1847 carrying a similar thing! Yes, an “Industrial Drama”, as the author calls it. The text is cited as Jobard, Jean-Baptiste-Ambroise-Marcellin (1792-1861),La force, le capital et le droit, drame industriel : précédé d’une lettre à M. Wollowski sur la propriété intellectuelle, 1847. When translated, the title is “Force, Capital, and the Law: An Industrial Drama, preceded by a letter to Mr Wollowski on intellectual property”
(If you can’t access the document, let me know.)
From around page 28 onwards, the author gives us a short playlet. A satirical allegory of the industrial revolution, capitalism, and law, doing what law often does best, taking sides while pretending not to! (Relatedly, I also came across another telling text by the same author, M. Jobard, containing a set of ‘industrial poems’.)
Before pasting the archival bits below, a quick word on why these texts tickled me and what it offers.
Why this amused me (and why it matters)
Two reasons, at least.
First is personal. I love pondering and penning IP issues in a poetic, playful way. Something susceptible to being called “unconventional” (or, sometimes, too “blog-ish”) for serious scholarship.
Second is political (Well…personal is political!): If poetic or playful engagements with law are dismissed as “non-traditional” or “non-serious,” these archives prove otherwise. They suggest that the so-called “experimental/non-serious/unconventional” mode of legal thinking and scholarship has a deep, dusty, and even a distinguished history. The 19th century (and even prior) was doing it before we had blogs, journals, or peer-review anxiety.
The rub?
There is a politics of academic writing that decides what counts as “serious” legal scholarship and, in turn, legal thought. And that is why it is a pleasure to see these texts stitching satire, law, and rhetoric together. If interested, here are a few examples of poetic pieces by Professors Shamnad Basheer here and Raman Mittal here. Prof Mitttal has an entire website page dedicated to poems on law. Some of my own occasional dabblings are here, and here.
What’s this about:
The playlet (originally in French, translated into English using DeepSeek) has three characters: the giant, the dwarf and the lawyer.
The giant is a hardworking but naive inventor and producer, representing labour and strength.
The dwarf is a small, cunning financier, representing capital.
And then someone of a legal ilk. Yes, a lawyer, portrayed as an amoral opportunistic person, serving those who can pay.
The story unfolds in three parts.
The first part presents, what I’dsay, the theme of Law vs. Physical Force. In this part, the Dwarf convinces the Giant that modern society has replaced brute force with law, which protects the weak (like the Dwarf) from the strong (like the Giant). The Giant, seeing the benefit of security, agrees.
Then the story shifts to the second theme, on Capital vs. Labour. Here, the Dwarf, with the Lawyer’s counsel, pretends to want to invest in the Giant’s match factory. But instead of investing, he steals the Giant’s trade secret and workers, using his superior capital to build a competing factory and drive the Giant out of business. The law offers the Giant no protection for his invention because he couldn’t afford a patent.
The last part is where a bigger capitalist (Baron de Wormspire) crushes the Dwarf using the same tactics. In despair, the Giant and Dwarf conspire to burn down the Baron’s factory. Thus ends the story with the small producers ruined, workers impoverished, and society descending into violence and anarchy. All is enabled by the prevailing economic system.
The play shows that “free competition” (or free market society as we call it today, where the market is deemed to ‘decide’ everything automatically) is not a fair race but a financial war where “big capital can crush the small with impunity.” It satirises the slogan “Laissez-faire et laisser passer” (Let do and let pass) as “Let the thief do his work and let the rogue pass!” It exposes the hypocrisy of a system that outlaws physical violence but sanctifies economic violence.
Jobard also coined a cool term (?): “financial feudalism”. Meaning that society didn’t abolish feudalism but merely transformed it. The old feudal lords have been replaced by new ones. These new ones are the giants of capital, who, instead of swords, use law and lawyers to exploit and crush the “small producers.” This also reminds me of Robert Hale’s classic 1923 piece: Coercion and Distribution in a Supposedly Non-Coercive State.
Okay. Enough from me.
Let the text speak for itself now …
THE GIANT (enraged): If you argue, I’ll slap you; if you move, I’ll crush you!
THE DWARF: Easy, friend! That was fine in the old days, when the strongest was the master, but now things have been put in order, and today I am as big as you before the law!
THE GIANT: I don’t care about your law.
THE DWARF: Not about the justice of the peace, the king’s prosecutor, or the policeman?
THE GIANT: I don’t care about anything, including the policeman!
THE DWARF: But they will call ten policemen, twenty policemen, a regiment, twenty regiments—the law must ultimately prevail!
THE GIANT: You don’t say! But that’s unnatural; for God gave me strength to command, and made you small to obey.
THE DWARF: People long believed that, but the wise elders, noticing that a big brute often crushed a clever little man, found a way to protect the weak by putting law in place of strength. Understand?
THE GIANT: So I’m no longer allowed to break the neck of anyone whose face I dislike!
THE DWARF: You’ve said it, my dear fellow, and it’s a good thing too!
THE GIANT: That’s funny all the same, and yet it doesn’t seem too bad to me; for after all, I too could find my master, and now I can sleep peacefully; actually, I prefer it that way!
THE DWARF: Certainly it’s much better; because now one can safely devote oneself to study and work, one can pursue science, art, industry, etc.
THE GIANT: Speaking of industry, I’ll tell you, my little friend, that I’ve started an excellent manufactory; if I had the means to buy machines and enlarge my factory, I’d soon make my fortune!
THE DWARF: Tell me what your business is!… I have capital myself, and perhaps I could help you.
THE GIANT: Really! You won’t abuse my trust, will you?
THE DWARF: On condition that you hide nothing from me, and that you explain your means of distribution, the addresses of your suppliers and correspondents; for I must know everything, weigh everything, before risking my money; business is so precarious today!
THE GIANT (enthusiastic): Nothing could be fairer, my good sir. I will take you to my home, I will show you my processes, my books—you’ll see! You’ll see!
THE DWARF: Well then! Tomorrow at eight o’clock I’ll be at your place; you’ll allow me to bring a friend of mine, a distinguished lawyer?
THE GIANT: As many as you like, goodbye; (aside) what a good little man sent by the good Lord!
The dwarf and the lawyer returning from the giant’s factory.
THE DWARF: Do you know that this oaf has a very fine business there?
THE LAWYER: Ah, nonsense! He doesn’t make more than five percent on his matches; I’ve checked his daybook.
THE DWARF: Yes, but since he sells a hundred francs’ worth of matches every morning, for cash, that’s five percent per day?
THE LAWYER: Well, a fine business! A man who earns five francs working like a slave, with his wife and children.
THE DWARF: What do you mean, a fine business! An investment of money at 1800 percent per year; you’re not thinking; it’s superb. I’m going to go into partnership with him, lend him my capital; it will be the association of capital, labor, and talent—but it’s better than a gold mine! And to think it’s an industry that seems like nothing—matches!
THE LAWYER: You’d be a great fool to go into partnership with him and lend him your capital. Better set up a factory for yourself alone.
THE DWARF: And workers?
THE LAWYER: He only has one; you’ll take him from him, and he’ll train others for you.
THE DWARF: And the processes?
THE LAWYER: That worker knows them; besides, he told us his secret; you know: antimony sulfide instead of potassium chlorate, which explodes and blinds people.
THE DWARF: But what if he has a patent?
THE LAWYER: Ah, nonsense! Patents, who cares about them; and besides, he doesn’t have the means to sue, and then the courts almost never condemn counterfeiters, or only to such small fines that it doesn’t stop them from carrying on. Quite sure?
THE DWARF: Are you sure?
THE LAWYER: If he dares to sue you, I undertake to make the lawsuit last longer than his patent. Should a rich man like you be stopped by such trifles? Did not the freedom of labor triumph from the ruins of the Bastille?
THE DWARF: Besides, his matches are red, and I can take out a patent to make green matches; isn’t that right?
THE LAWYER: Undoubtedly; that’s a famous idea. It will be an improvement patent, which I am sure to get for you; I know a member of the examination committee, he’s a good fellow who says they have no right to examine or refuse a patent.
THE DWARF: That’s famous! I’ll have the right to put a fine gilt escutcheon on my door with these words: Patented by His Majesty the King. — I must admit I made an invention quickly, I who thought it was so difficult?
THE LAWYER: Look! Look! Now I’m making one in turn.
THE DWARF: What is it?
THE LAWYER: Upon my word, my dear fellow, I don’t want to say; I’ll also take out a patent. What an inspiration!
THE DWARF: Is it also in matches?
THE LAWYER: Certainly, and it’s twice as good as your invention; I’m also going to set up a factory.
THE DWARF (alarmed): Why harm each other; wouldn’t it be better to come to an arrangement; do you want an interest?
THE LAWYER: No, no, no, I prefer a lump sum, and I’ll let you have my secret to include in your patent.
THE DWARF: How much do you want?
THE LAWYER: I could ask you for a hundred thousand francs; but I’ll be content with ten thousand, because it’s you.
THE DWARF: I only have a 500-franc note on me; will that do?
THE LAWYER (taking the note): I told you: it’s because it’s you!
THE DWARF: Now your secret, if you please?
THE LAWYER: That’s fair. You’ve invented green-headed matches, with which you’re going to beat the red-headed matches. Well, I would have beaten you both with blue heads and yellow heads.
THE DWARF: Ah! For example; that wasn’t hard to find!
THE LAWYER: It was just as hard as your green heads!
THE DWARF: So I’m done for just the same; but never mind, I’ll make it up on the other one. I’ll start tomorrow, setting up my workshops on a large scale; the giant can only sell his matches at five centimes a box, I’ll sell them at three, to ruin him at once, along with that heap of other poor wretches who eke out a living on this article in every corner of the country.
THE LAWYER: That’s what’s called know-how. Long live competition, which always brings lower prices! You’ll get the gold medal at the next exhibition and perhaps the cross if you take care of the press. Don’t be afraid that after this the courts will condemn you for having enticed away the giant’s worker and taken his processes—that would be contrary to the admirable principle of freedom of industry.
THE DWARF: But I fully intend to raise the price of my matches to recoup my losses once I’ve crushed my competitors.
THE LAWYER: That’s well understood. You’ll be free to double it forever; that’s how it’s played in industry; which doesn’t stop the simpletons from imagining that competition gives them everything for nothing.
THE DWARF: We have a funny proof of that in the ever-increasing price and adulteration of all the goods that ruin us, when they don’t poison us.
THE LAWYER: “Let society perish rather than a principle.” That is the motto of our brilliant political-economic church. One must try to profit from it, that’s all.
THE DWARF: I’ve always heard it said that he who speculates on human folly never risks being without customers. For there will always be old fools, big fools, and little fools, in abundance.
THE LAWYER: Fools are on this earth to serve as food for clever people; without them, lawyers and journalists would die of hunger.
THE DWARF: So I’ll write to the Giant that, all things considered, I’ve changed my mind, that his business doesn’t suit me, and that I’ve found another use for my capital.
THE LAWYER: That’s it. You are a clever one, worthy of the legal fraternity. Goodbye, Nini!
SIX MONTHS LATER.
THE GIANT (breaking down the Dwarf’s door): How dare you, villain! I’ve learned that it’s you who founded that large match factory at the end of the street that’s killing mine!
THE DWARF (frightened): No noise, please! Let’s talk quietly. My wife has a migraine and my little one has whooping cough—respect for suffering!
THE GIANT: You’re very lucky to have an excuse, for I came to break your neck!
THE DWARF: First of all, it’s not I myself who manufactures matches, and if you have a patent, enforce it, have that factory seized; make your complaint to the king’s prosecutor, the justice of the peace, the minister, or the king who granted your patent—how should I know! Get a lawyer, an attorney, a bailiff, experts! All citizens are equal before the law!
THE GIANT: Do I have the means to pay for all that judicial rigmarole? Will all that artillery march for free?
THE DWARF: The Code says justice is not for sale, but it costs dearly, that’s true. What do you want?
THE GIANT: Besides, I don’t have a patent because I didn’t have the means to pay the fine of 1,500 francs.
THE DWARF (reassured): Ah! You don’t have a patent! You don’t have a patent! In that case, my dear fellow, you don’t even have the right to complain. Your invention is in the public domain; everyone can set up, even at your door, to wage cutthroat competition against you, which is very easy since you have no capital.
THE GIANT: So big capital can crush the small with impunity?
THE DWARF: Dat heb ik lang geweeten, Dan de groten de kleinen eten! (Dutch: I have long known that the great eat the small!)
THE GIANT: But when you looked at me crossly and I wanted to beat you, you told me that the wise elders had put law in the place of strength and that it was no longer permitted for the powerful to crush the weak, because the law protected him; doesn’t it protect the small capitalist against the brutalities of the big one?
THE DWARF: Not in the least, and I admit I don’t know the reason. I’ll ask my lawyer; perhaps it’s what they call a lacuna.
THE GIANT: It’s unforgivable, it’s abominable that all capital is not, like all citizens, equal before the law.
THE DWARF: Indeed, since a small man cannot be killed with impunity by a big one, small industrialists should not be at the mercy of the big ones; everyone should be able to say, like the miller of Sans-Souci said to the King of Prussia: “You shall not have my mill, for there are judges in Berlin!”
THE GIANT: You reason very well, but you’ve taken my industry and I’ve a good mind to strangle you.
THE DWARF: I was within my rights. Everything the law does not forbid is permitted. But the law forbids you to strangle me under penalty of death, and even to threaten me.
THE GIANT: But your laws are infamous, since they don’t punish you, who reduce me to starving to death; isn’t that as if you poisoned me, my wife, and my children?
THE DWARF: Distingo; as my lawyer says, there is the fas and the nefas… (the lawful and the unlawful)
THE GIANT: I spit in your face, and I’m going to join the rioters. I’d rather be hanged than leave one stone upon another in your factory! When we are the masters, we will make the law in our turn; but we will arrange it so as to put law in the place of strength everywhere and in everything. Do you hear me? The smallest inventor, the smallest importer, the smallest applier of any industry not practiced in the country, shall no more be deprived of it than an owner of his field, except by expropriation for reasons of public utility or convenience, and after just and prior compensation. That’s what my common sense tells me would be justice and good sense, at least!
THE DWARF: Perfect, my dear fellow. You reason like a young lawyer who hasn’t yet lost, through legal practice, the notions of true and false, just and unjust. You should petition the chambers to teach them that; like a certain Jobard who is naive enough to ask them if it wouldn’t be just that everyone should be the proprietor and responsible for his own works?
THE GIANT: Is that even a question?
THE DWARF: That is precisely the biggest question of the age and the cornerstone of the organization of labor. For labor would be as well organized as it can be if everyone had the property of the works of his creation and put his mark on all the products that come from his hands.
THE GIANT: Would there be a scoundrel impudent enough to oppose that? Where is he, so I can eat him! (A bell rings.)
THE DWARF: There he is; it’s my lawyer coming in. Be calm, do you hear? — Good day, my dear fellow.
THE LAWYER: Good day, gentlemen. I’m glad to find you together. I’ve come to warn you that Baron de Wormspire has just opened an enormous match factory using the Austrian process; that he has taken out an importation patent for round matches, which are far superior to the square ones, and that he is selling them at half price to ruin you all, for he has millions.
THE DWARF: But that’s an outrage! Isn’t there any law to protect the average industrialist against the big one?
THE GIANT (rubbing his hands): Good, that consoles and avenges me.
THE LAWYER: Nothing, my friends, nothing in the laws, nothing in the codes.
THE DWARF: I’m going to close my establishment and put all my workers out on the street.
THE GIANT: Good! Here are some to swell the riot. It’ll go on, it’ll go on… the capitalists, we’ll…
THE LAWYER: That’s what free competition is, that noble conquest of the great Revolution which bears on its banner the magnificent motto: Laissez faire et laissez passer (Let do and let pass).
THE GIANT: Yes, let the thief do his work and let the rogue pass!
THE DWARF: He’s right, the big fellow. I’m becoming a rioter, radical, communist, magnetizer, publisher, supplier, anything—since I’m ruined anyway and furious with an order of things that doesn’t allow me to work in peace. For there is no more guarantee, no more safety, as soon as it suits assemblers of big capital to crush the small. We absolutely need a law to repress industrial anarchy; otherwise, they’ll give us, or we’ll take, so many liberties that we’ll gallop back to the savage state, which seems to be the ideal of the amateurs of laissez faire et laissez passer.
THE GIANT: Look, look! How the little fellow is getting excited. You’re six feet tall at this moment, upon my honor. I lavish upon you my esteem and my most distinguished consideration.
THE LAWYER: Gentlemen, the jus romanum and the pandects have only decided the question of the party wall; they say nothing about the conduct of big capital towards the small, any more than about the property of industrial, artistic, literary, and commercial inventions, so little did they exist, or were counted for little, in Rome. Now, the Christians, having adopted the code of the pagans, have no right to complain if everything goes to the devil!
THE DWARF (inspired): An idea comes to me! Come closer, Giant, so I can tell you in your ear!
THE GIANT: Alright! That Baron de Wormspire must…
THE DWARF: Hush! It’s agreed. You’ll enter his factory as a worker, and when he has received a good shipment of sulfur and phosphorus, you understand me?…
THE LAWYER: What is it? I think I guess.
THE DWARF: Hey! But you won’t say anything, I hope. A lawyer is, like a doctor, a confessor who cannot, without failing in honor, reveal a secret.
THE LAWYER: Even when it’s a matter of preventing a crime? Oh, ho! In that case, I’m off. I’m de trop here. Goodbye! I understood nothing!
THE DWARF (holding out his hand to the Giant): It’s agreed!
THE GIANT: It’s understood!
(They exit.)
Six months later, one read in the newspapers: “A frightful explosion blew up the great chemical match factory of Baron de Wormspire. Great misfortunes are to be deplored; more than two thousand workers are reduced to mendicancy with their wives and children. The factory was insured; the Baron will lose nothing. The causes of this disaster are entirely unknown. Justice is investigating!”
CONCLUSIONS.
This little industrial drama is played every day, with very few variations and much success, in all parts of France and in free countries, under the direction of free competition and by virtue of the right to let everyone do everything.
The insufficiency, not to say the absence, of all industrial guarantee; the ease with which the great capitalists, who today replace the champions, burgraves, and high barons of the Middle Ages, crush small producers and strip them of their industry, proves to us that we are fully in the midst of financial feudalism; that brute force, restrained by law and repressed in its excesses by the courts, has only metamorphosed into ingots the better to resist the sword of justice and escape the surveillance of the high police; which indeed prevents two individuals from fighting with fists or swords, but not with capital; and which watches with indifference as they kill each other through fierce and premeditated competition, which throws onto the street countless workers and employees, to the great peril of the social order itself.
Yet it would be so easy to prevent all this damage, to end this horrible anarchy, finally to organize industry, commerce, and the arts, that one cannot well understand what opposes it. When one thinks that a single line of law would suffice to bring back order, security, and prosperity to labor, one wonders if an imperious fatality has not traced for civilization, as for the Ocean, an impassable barrier, which can only be broken by some great cataclysm, alone capable of opening the eyes of our modern Belshazzars and giving them the understanding of the Mene, Mene, Tekel, Upharsin, of which here, in our opinion, is the faithful translation:
EVERYONE MUST BE THE PROPRIETOR AND RESPONSIBLE FOR HIS OWN WORKS.
Okay. I’ll leave it here. See you in the next post!
