CONTINUITY AND CONTRACT Historical Perspectives on the Employee’s Duty of Obedience in Swedish Labour Law MAT S KUML I EN
The Olin Foundation for Legal History INSTITUTET FÖR RÄTTSHI STORI SK FORSKNING s toc k hol m 2 0 0 4
g raph i c de s i gn : Pablo Sandoval cove r p i cture: Provincial Code of Uppland, Sweden, circa 1300, ms , uub translat i on : Daniel Ogden pape r : Lessebo Bok natur vit typog raphy: Bembo p r i nt i ng : Åtta.45 Tryckeri ab, Stockholm2004 bookb i nd i ng: Almqvist &Wiksell Tryckeri ab, Uppsala 2004 - -- - The depicted medal of Johan Stiernhöök, engraved by C.M. Mellgren, was made on behalf of the Swedish Academy in 1837.
RÄTT SH I S TOR I SKT B I BL I OTEK d i s t r i bue ra s av r önne l l s ant i k var i at ab band 64
Mats Kumlien
Historical Perspectives on the Employee’s Duty of Obedience in Swedish Labour Law AND CONTRACT CONT INU I TY
c o n t i n u i t y a n d c o n t r ac t 9 n c r e a s i n g ly,Western societies and legal thinking are characterised by the significance of fundamental human rights. A movement towards greater individualisation runs parallel to this development. These tendencies challenge two distinctive features of current Swedish labour law. Firstly, the legal rules in question, for example, concerning employment protection, are comprehensible only in the light of a notion of the con-tract of employment being essentially an authoritarian relation-ship of inequality. Secondly, Swedish labour law and the indus-trial relations model are to a large extent based on colllectivism and social partnership. Accordingly, the Labour Court has at-tached the employee’s far-reaching duty of obedience directly to the collective agreement and its area of application. Is this legal state of things compatible with the view that an employee is not only a person who sells labour to an employer, but who also has a full range of fundamental rights regardless of the connection he or she has to an organisation for promoting his/her interests? In seeking to answer this question, my point of departure is that an understanding of current labour law is facilitated by studying different assumptions that might underlie the legal rules. Accordingly, I have tried to analyse the emergence of the legal doctrine about the employee’s subordination and its incorporation in Swedish law during the first three decades of the 20th century as well as its interplay with a collectivist system. I Preface
p r e f ac e 10 Numerous people have lent me a helping hand in this work.The most crucial contribution has been made by Professor Tore Sigeman, who took a decisive part in specifying issues, pointing out sources of research and commenting on my manuscript. I also wish to thank all those who have attended the Advanced Seminar of Legal History at Uppsala University and delivered frank points of view on my ideas.Among them are Carl Gustaf Spangenberg, Kent Brorson, Mauritz Bäärnhielm, Marianne Dahlén, Patrick Engellau, Görel Granström, Håkan Göransson, Göran Inger, Kurt Junesjö, Kent Källström, Alvar Nelson, Rolf Nygren and BoWennström. Valuable comments have been given by Niklas Bruun (on whose initiative I first became interested in the overall topic of this book), Claes Peterson, Brian Bercusson, Steve Befort,Rolf Birk, Lars Björne, Laura and Ben Cooper, Kurt Eriksson, Göran Kåver, Nicole Maggi-Germain, Jonas Malmberg, Kjell Åke Modéer, Svante Nycander, Mia Rönnmar, Harry N Scheiber, Jan-Olof Sundell, Alain Supiot, Susan Thorpe and AlanWatson. A special tribute is due to Birgitta Köhler at the law library of Uppsala University for her untiring endeavours in hunting down material, which was difficult to obtain. Thanks are also due to Daniel Ogden for correcting the English errors I made in writing this book. I am grateful for the grants which I received from the Swedish Institute forWorking Life Research (RALF) and the Faculty of Law at Uppsala University. Finally, I would like to express my warm thanks to The Olin Foundation for Legal History founded by Gustav and Carin Olin, which not only made it possible for me to carry out a long period of research at the University of Minnesota, but which has also generously provided for the publishing of this book. Uppsala, October 2004 mat s k um l i e n
p re fac e part i Introduction part i i Ancient law part i i i The transition period part iv The formative years part v Continuity and Contract. An epilogue abbrev i at i ons re f e re nce s i ndex i ndex of pe r sons c o n t i n u i t y a n d c o n t r ac t 11 9 17 17 33 33 61 61 107 124 124 141 170 182 229 295 326 326 343 358 361 381 388 1 2 3 4 5 6 7 8 9 10 11 12 The implicit terms about the employee’s subordination David Nehrman and the code of 1734 on the master-servant relationship The transition period 1800-1885 Winroth in 1878 on labour relations The formative years of modern Swedish labour law, 1885-1930 Comparative reflections Sweden’s road to a contract of employment and collective self-regulation The road to recognition 1885-1914 Integration of unions and a separate contract of employment 1915-30 The formative years of Swedish labour law. Summary IV The emergence of a doctrine Survival, selection and modernity Contents
c o n t e n t s 12 “all tasks that are naturally connected with the activities of the employer” 1 The implicit terms about the employee’s subordination 1.1 Purpose and background 1.2 Comparative legal history points of departure 1.3 Central issues and plan “…is founded upon the law of Nature itself…” 2 David Nehrman and the code of 1734 on the master-servant relationship 2. 1 Purpose, background and theoretical points of departure 2. 2 Central issues of part II 2. 3 “…as long as he does not beat him black or bloody” Ancient labour law 2. 3. 1A common legal rhetoric 2. 3. 2 Swedish medieval provincial law and national codes 2. 4 Early modern time 2. 4. 1 Status… The chief rule - a relationship between master and servant The exceptions - unskilled day-labourers and skilled craftsmen 2. 4. 2 … or contract? Nerhman and the 1734 Book of Commerce 2. 4. 3 Landbolega - a Swedish divergence? 2. 5 Concluding remarks II “…must be considered as lying in the nature of the contract…” 3 The transition period 1800-1885 3. 1Theoretical points of departure 3. 2 Central topics of part III 3. 3The social issue 3. 4The making of labour law in 19th century Europe. Some traits 3. 5 Status or contract? The German historical school The historical argument Legal sources From status to personal autonomy Systematization of law 3. 6 Savigny andWindscheid about labour relationships 3. 7 Swedish 19th century labour lawmaking in general 3. 7. 1 Change … 3. 7. 2 … or continuity? 3. 8 Swedish opinions before Winroth 3. 8. 1 Fredrik Schrevelius 3. 8. 2“The most common opinion” before Winroth? 17 17 17 19 31 33 33 33 39 40 40 42 44 44 44 45 49 55 56 61 61 61 64 64 68 72 73 73 74 75 78 82 82 84 89 90 93 Part I Introduction Part II Ancient law Part III The transition period
c o n t i n u i t y a n d c o n t r ac t 13 Nehrman’s legacy Legal education around 1800. Tengwall, Calonius Drafts of a Civil Code 1815, 1826 and 1849 Legal writing and education 1815-1878 3. 9 Summary concerning “the most common opinion” beforeWinroth 4Winroth in 1878 on labour relations 4. 1 Continuity… 4. 2 ... and change 4. 3 Concluding remarks III 4. 3. 1The most common opinion before Winroth 4. 3. 2A breakthrough of modern thinking about contract law? “…can be considered to fall within the natural framework of the collective agreement…” 5The formative years of modern Swedish labour law, 1885 - 1930 5. 1 Background and central topics of part IV 5. 2The “social issue” grows into the “worker issue” 5. 3A scanty assortment of legal sources 5. 4 Freedom of contract in question 6 Comparative reflections 6. 1 France 6. 2 Great Britain 6. 3 Germany 6. 3. 1The patriarchal roots of the welfare state and the BGB 6. 3. 2 Criticism of BGB: die Kathedersozialisten and Otto von Gierke 6. 3. 3 Das Tatbestand.The state of things as a determining legal source 6. 3. 4The Weimar Republic 1919-1933. Collectivism and Gemeinschaft 6. 3. 5 Nazi labour law - Das Führerprinzip 6. 3. 6 German postwar labour law. Back to the BGB - and Treue 6. 4A separate contract of employment, subordination and collective self-regulation 7 Sweden’s road to a contract of employment and collective selfregulation 7. 1 Issues and theoretical starting points 7. 2The legislative framework and general traits of the formative years 8The road to recognition 1885-1914 8. 1 Repression or toleration? 1885 - 1905 8. 2 Peace-keeping efforts and the introduction of “section 23”. 1905-1909 8. 3 Legislative offensive and “the nature of things”. 1909-11 8. 3. 1The Conservative government’s bill of 1910 8. 3. 2The Conservatives’ arguments 8. 3. 3 Rejection by Liberals and Social Democrats 93 94 96 101 105 107 107 111 117 117 119 124 124 124 126 132 137 141 141 144 148 148 151 154 157 161 163 164 170 170 180 182 182 186 193 195 201 204 Part IV The formative years
c o n t e n t s 14 8. 3. 4 Distrust of jurists 8. 3. 5 Rejection despite an attempt to compromise 8. 3. 6The legislative offensive continues 1911.The round of submitting opinions 8. 3. 7The bill of 1911. Section 23 struck from the proposal for an act on collective agreements 8. 3. 8A third rejection by the left 8. 4 Summary 1885-1914 8. 4. 1The content and legal foundation of employment? 8. 4. 2The interaction between the contract of employment and collectivism? 9 Integration of unions and a separate contract of employment 1915-30 9. 1 1915-1920.Trade unions accepted as legal persons 9. 2The judiciary.The binding force of collective agreements and case law intentions 9. 3 Swedish legal writing 1885-1930. An inadequate means for making labour law Nordling Chydenius Björling Hasselrot Undén Wikander Ekeberg The doctrine concluded 9. 4Attempt at legislation on the basis of the collective agreement 9. 4. 1 The proposal of the National Board of Health andWelfare 1916 9. 4. 2A central board for voluntary arbitration 1920 9. 5 Master and servant, industrial democracy or an extended obligation for industrial peace ? 1921-1926 9. 5. 1The Master-Servant Statute abolished 1926 9. 5. 2 Social Democratic proposals concerning industrial democracy 1923-24 9. 6 Liberals urge labour law legislation 1926-1928 9. 6. 1The debate before the 1928 legislation.The sources 9. 6. 2The supporters: industrial peace, the nature of things, custom, collective agreements and jurist judges 9. 6. 3 Opposition The nature of things and established, accepted customs? Drawing a boundary around protected legal disputes? An impartial labour court? 9. 6. 4The debate of 1926-28 summarised 9. 7The stage is set for the Swedish Labour Court 210 211 213 218 220 224 224 227 229 229 233 234 235 236 236 238 240 243 245 246 248 248 250 252 255 258 264 268 269 277 279 281 283 286 287
c o n t i n u i t y a n d c o n t r ac t 15 9. 8The labour court as the maker of a separate contract of employment 1929-1934 10 The formative years of Swedish labour law. Summary IV 10. 1The debate about the content and the legal foundation of employment? 10. 1. 1The duty of obedience - a minor topic? The legislative efforts 1901-1915 1915-1926 1926-28 Legal writing on labour relations 1885-1930 The labour court as lawmaker 1929-34 10. 1. 2 From status to contract? 10. 2 The interaction between the contract of employment and collectivism? 10. 2. 1A path of repression-toleration-recognition-integration? 10. 2. 2 Integration and subordination Continuity and contract 11 The emergence of a doctrine 11. 1 Confusing case law? 11. 2The ancient model 11. 3Transition, capitalism and a free contract of labour 11. 4 Industrialization and collectivism 11. 5 Juridification, integration and subordination 12 Survival, selection and modernity 12. 1 From Savigny to Lindhagen 12. 2 Subordination and the Swedish model 12. 3 Rational case law? Ab b r e v i at i on s Re f e r e nc e s I nde x I nde x o f p e r s on s 289 295 295 295 296 301 303 310 313 316 318 318 320 326 326 327 328 330 334 339 343 343 345 354 358 361 381 388 Part V An epilogue
The purpose of this book is to study the emergence of an essential general principle of current Swedish labour law, namely the employee’s duty of obedience (Sw. lydnadsplikten). According to this principle, the employee has a far-reaching obligation to perform the work tasks that the employer orders him or her to do.The other side of the principle is that the employer has a far-reaching right to change, without formally changing or ending the contract, the terms concerning how, where and when the opposite party shall fulfil his or her obligations. In close ideological connection to the duty of obedience is the idea that some sort of personal bond links the parties together. c o n t i n u i t y a n d c o n t r ac t 17 “We thus see that it is the fact of direction which is the essence of the legal concept of ‘employer and employee’… as it is considered in the real world.”1 “…it creates a personal relationship between the parties…If one is to state a common point of view, it is that the employee is obliged to put the employer’s interest ahead of his own.”2 “all tasks that are naturally connected with the activities of the employer” 1. 1 purpose and background 1 Coase 1937, p. 29. 2 Sw.: “... det skapar ett personligt förhållande mellan parterna ... Skall man ange en gemensam synpunkt är det att arbetstagaren är skyldig att sätta arbetsgivarens intresse framför sitt eget.” Eklund in Schmidt, F. et. al 1994, pp. 257-258. part 1, chapter 1 1 The implicit terms about the employee’s subordination
p a r t 1 , c h a p t e r 1 18 3 AD1929:29. 4 The term“interpolated” is often mentioned in this context by Swedish scholars.According to the Swedish National Encyclopaedia,Vol. 9, p. 518, interpolation means falsifying, counterfeiting or making something better than it really is. Thus the employee has a diffuse duty of loyalty to the employer in certain matters that are not connected with his or her work tasks or presence at the workplace (Sw. lojalitetsplikten). The general principle in question - the employee’s comprehensive duties of subordination - is not based on legislation but on decisions from the Swedish Labour Court during the first five years after its establishment in 1929. Accordingly, from decision 1929:29 is derived the worker’s duty to perform every task which has a “natural” connection with the employer’s activities, provided that the tasks lie within in the limits of the worker’s professional personal qualifications.3 The starting point of this “29/29-principle” is the notion that the individual contract of employment is governed by certain ‘naturalia negotii’, that is, terms that are so self-evident that they apply to the contract even without ever being mentioned by the parties.The labour court then has “interpolated” these “naturalia” into the collective agreement.4This has had the consequence that the employer’s far-reaching right to change the conditions of the other party’s contribution is protected by the legislation concerning collective agreements. If the employee refuses to perform tasks which are considered to be within the framework of the employment he or she can be dismissed according to the rules of the Protection of Employment Act concerning “personal reasons”. This legal position does not only illustrate the fact that the contract of employment is separated from other contracts and treated essentially as an authoritarian relationship of inequality and obedience, but it also reflects very well the collectivist character of Swedish labour law of today.The most important lawmaker, the labour court, is constructed as a corporate arbitration board, composed of a minority of legally-trained judges and a majority of representatives from the large labour market organisations.
It is the only court of its kind in Sweden. It normally adjudicates as the first and only instance and its judgements cannot be appealed. Another remarkable difference in relation to courts of general jurisdiction is that the members of the labour court are appointed for a limited period of time.5 Even if the labour law of today rests in some of its essential parts upon the labour court’s decisions from around 1930, the court never revealed what legal sources upon which they were founded. Regarding the “29/29-principle”, for example, the court simply referred to the fact that the collective agreement “must be considered” (Sw. måste anses) as implying certain terms. In the light of this confusion, it is of special interest to analyse what underlying assumptions might have inspired the court at the period in question. Neither the employee’s open-ended duty of subordination, nor the prominent feature of collective self-regulation, are unique to Swedish labour law.Although often categorised in different legal “families”, all Western countries have in common four specific features of the conception of labour law. (i) The legal rules are to a great extent made by autonomous groups, not by the state. (ii) The contract of employment has been separated from ordinary contracts. No other contract of private law is regulated in this manner; legislation, collective agreements and general legal principles determine central terms in advance and thus withdraw them from the power of the parties.The contract of employment has become a distinct and autonomous category, although it is placed in the same legal discipline and regulated by the same general principles of law as other contracts.The separation of the contract of employment, however, rests upon another distinctive feature of labour law, as it has developed in Europe as well as in the USA: (iii) The individual worker is subordinated to the emc o n t i n u i t y a n d c o n t r ac t 19 5 Sigeman 1989-90, pp. 193-206. 1. 2 comparat ive legal hi story points of de parture
ployer or his representative.The worker obtains a quantitatively fixed remuneration while the opposite party receives an option unilaterally to change the conditions of the employee’s work to other duties, other times or other places.6 Another common feature could possibly be added: (iv) Although the subordination is unspecified, it is not unlimited.The employee is not obliged to fulfil tasks which conflict with legal sources of “higher value”, such as legislation, collective agreements, equity, custom and good faith, or are dangerous to the employee’s life and health. In this respect, however, great differences are to be found due to the varying extent to which different countries have allowed legislation and collective solutions to limit the scope of the employer’s prerogatives or to promote the worker’s social security.The numerous Swedish acts during the 1970s concerning the employee’s protection of employment and right of participation in decision-making are typical examples of legislative efforts to make exceptions from the chief rule of Swedish labour law. The legal concept of the contract of employment combines freedom of contract and equality between the parties with notions of subordination and inequality.This confusing combination mirrors the underlying political problem of finding a balance between the economic values represented by the workforce as a commodity on a market, and the personal element, that is the worker, as a human being and as a citizen.This problem of balance is also an important background for understanding the mixture of private law and public law that characterises current labour law in all Western countries. Swedish legal writing from the 1950s has in general focused on the collective components of labour law and its history. Even if p a r t 1 , c h a p t e r 1 20 6 “La caractéristique essentielle de la relation de travail est la circonstance qu’une personne accomplit, pendant un certain temps, en faveur d’une autre et sous la direction de celli-ci, des prestations en contrepartie desquelles elle touche une rémuneration”. CJCE 21 nov. 1991, URSSAF de la Savoie c./SARL Hostellerie le Manoir, Aff. C27 - 91. Supiot 1994, p. 113, fn 4.
the individual contract of employment has received less emphasis, several authors have discussed the labour court’s disclosure of implicit terms in collective agreements in a way that implies certain assumptions about individual agreements.7 Some writers have – critically or with loyalty – discussed the indispensable preceding step, namely the presupposition that the employee’s far-reaching duty of obedience is a “natural part” of the individual contract. Obviously the labour court as well as legal scholars have had considerable difficulties in defining the theoretical foundation of some essential natural principles of 20th century labour law. In the next three parts (ii, iii and iv) of this study a number of issues will be specified and related to current research. Already at this stage, however we will stress some general sources of information. Tore Sigeman has pointed out the significant role that has been performed by the Swedish Labour Court, in particular by elaborating “standard interpretation rules”. The most important of them is the 29/29-principle, which presupposes that an individual contract of employment as well as a collective agreement is furnished with a collection of natural, general principles of law.8 According to Kent Källström, Swedish labour law, as the labour court has developed it, can be characterised as reluctant to receive influences from values of other legal areas. One explanation might be found in the labour court’s “teleological”method for finding the law which results in a view that overestimates and isolates norms from the internal system.9 Some legal historians have observed the indecisiveness that characterised many 19th century Swedish scholars when analysing the new types of labour contracts that emerged alongside c o n t i n u i t y a n d c o n t r ac t 21 7 Petrén, G1944, pp. 116-131; Bergström1948, pp. 18-19;Adlercreutz,A1954; Schmidt, F 1957, pp. 203-234; Geijer, & Schmidt 1958, pp. 294-295; Schmidt, F 1959; SOU 1975:1, Demokrati på arbetsplatsen, pp. 400-402;Victorin1979; Sigeman1984; Hydén, 1985;Victorin1986; Göransson1988; Svensäter 1991; Malmberg 1997; Rimsten1998; Hasselbalch 2002; Hållfast arbetsrätt…2002. 8 Sigeman 1978. 9 Källström1993.
the master-servant relationship (Sw. tjänste-or legohjonsförhållandet).10 One issue concerned whether the labour agreements could be sorted to family law or to contract law. Far more important was whether, and in that case how, certain rules or principles from the established master-servant area should apply also to the new relationship of employment. According to one of the most prominent figures of 20th century Swedish labour law, Folke Schmidt (1909-1980), the emergence of “the modern thinking about contract law” occurred in 1878 when Alfred Ossian Winroth (1852-1914), published his treatise on the “Master-Servant relationship”.11 BeforeWinroth began to speak, according to Schmidt, the “most common” opinion among scholars was to categorise the masterservant relationship as a part of family law.12 Several other Swedish legal historians have touched upon Winroth’s pioneering contribution for 20th century labour law, but have also made the same reservation as Schmidt, namely that the doctrine of the late 19th century must be characterised as uncertain or unclear.13 There are many reasons to use Folke Schmidt’s high appreciation of Winroth’s book in 1878 as a point of departure for the study of Swedish legal writing during the 19th century. Schmidt is not only considered to be a prominent figure of 20th century Swedish labour law.Among other things he was the first professor of labour law in Sweden.14 Furthermore, his reference to Winroth, a 19th century jurist who is usually not known for being politically progressive, was expressed during the 1950s, when the Swedish model of collective self-regulation was at its peak. As every combination with “modern” it has a troublesome but p a r t 1 , c h a p t e r 1 22 10 Adlercreutz,A, 1954, pp. 27-34, 151-154; Sigeman1967;Adlercreutz,T1971; Peterson, C1984; Sundell 1987. See also Göransson 1988. 11 “…genombrottet för den moderna kontraktsrättsliga uppfattningen”. Schmidt, F 1959, p. 13;Winroth, A O, Om tjenstehjonsförhållandet enligt svensk rätt, Uppsala 1878. 12 Schmidt, F 1959, pp. 5-6, 12-13. 13 Adlercreutz,A, 1954, pp. 27-28, fn 4, p. 151, fn 87 and 88; Peterson, C1982; Peterson, C1984; Adlercreutz,T, 1971, pp. 96-106. 14 Sigeman 2002.
inescapable ambiguity. On the one hand, modern can mean the latest events and what was in fashion around the 1950s. On the other hand, there are certain qualities which can be considered as modern, regardless of whether they appear today or 200 years back in time. One of them is rationality, and in this meaning, modern can be connected to the Enlightenment, to scepticism, critical evaluation and the citizen’s protection against an arbitrary, unpredictable exercise of public power.15 Schmidt’s thesis about Winroth’s modernity can be tested from the perspective of fashion as well as rationality. The notion of a alleged movement towards modernism and rationalism is one underlying theme in the writings of Lars Björne who has made a comprehensive analysis of Nordic legal science until 1910. Of special interest are Björne’s conclusions concerning the period1815-1870 and the Swedish jurists’ relationship to the German historical school. The prevalent idea is that legal writing became more professional and “scientific” during the period in question. One important change was that jurists ceased making references to natural law. Björne, however, touches upon the controversial issue whether natural law survived all the same, though in the guise of the putative scientific and non-political smoke-screens of legal positivism.16 Moreover, Björne discusses how the Nordic legal scholars took an ambivalent attitude to custom as a source for finding the law on areas where legislation was lacking or was insufficient.This confusion about the legal dignity of patterns in real life had, and still has, a connection to the issue about natural law. Could custom be a legal source only if it had been approved by legislation? Was custom itself a legal source or was it the underlying general opinion of law that it reflected? Could trustworthy men articulate that general opinion, even it had not been manifested in concrete acts?What could be considered as “natural” - already c o n t i n u i t y a n d c o n t r ac t 23 15 Liedman 1997, p. 7. 16 Björne 1995, pp. 261-267; Björne 1998, p. 233; Björne 2002, p. 294.
established customs; only reasonable customs or a political desire that a certain custom be established? Around 1900 a new, realistic attitude appeared which considered who was to apply a customary law, if there was one.This resulted in a situation where scholars paid more attention to the crucial function of the judiciary for the emergence of customary law and the problems that judges had to face, when thus given a more important role as lawmakers.17 In Denmark and Norway a similar realistic or teleological method often was based upon vague legal sources such as “the nature of things”,“real considerations”, etc.18 In connection with this process was a transfer of political conflicts of interest to conflicts of a legal character.According to Niklas Bruun and Håkan Göransson, this “juridification” could fulfil different functions, among many others to make clear controversial issues, neutralise political conflicts, integrate interest organisations into the state’s system, or focusing on procedural legitimacy in stead of on obligations and rights.19 The topics in question presupposes a long historical perspective, which gives us cause to refer to the international legal discussion on labour law history. During the last three decades several authors outside the Swedish-speaking sphere have paid attention to the fact that legal science has had several and great problems in analysing the legal character of the terms of the wage labourer. Alan Fox discusses how certain parts of the open-ended and diffuse relationships which characterisedl’ancien régime have survived in the modern, individualised and market-orientatedWestern society. Around the turn of the century, 1900, the contract of employment had become a specific category of contract, a legal foundation for the employer to make rules and exercise discretionary power over the other party of the contract.The worker p a r t 1 , c h a p t e r 1 24 17 Björne 1995, pp. 278-284; Björne 1998, pp. 299-311; Björne 2002, pp. 306-315. 18 Björne 2002, pp. 240-258, 281-286, 296. 19 Bruun 1987; Göransson 1988, pp. 401-412, 424, with references to Simitis 1984 and Clark 1985.
was adjudged a quantitatively fixed remuneration, while the opposite party got a potentiality, which to a great extent was open for him to decide. Thus, the contract of employment is open-ended and status has become a dominant element in working life, which is said to be based upon the doctrine of contract. Status, according to Fox, is a system, which concerns form as well as content; something is prescribed in advance, outside the disposition of the persons concerned and this something means an hierarchy, in which one actor is subordinated to another actor. Fox concludes that modern contractual notions never came to terms with the demands from the labour market. As a reply to Henry Maine’s (1822-1888) theses that Western society has gone from status to contract20, Fox means that status relationships have survived in the modern contracts of employment, which he considers to be relationships far away from the familiar pre-industrial, master-servant relationship. Furthermore, he stresses the bias of this process in modern labour law in the sense that the legal system has maintained the servant’s-worker’s far-reaching duty to obedience and loyalty, while the master’semployer’s diffuse duty to give protection and care has no doubt been on the decline.Thus, the chief rule of modern labour law has been to protect the employer’s prerogative.21 Fox’ ideas about status and contract have been elaborated by BrunoVeneziani, who claims that the notion of a specific contract of employment evolved during the period from the fall of the guild system to the beginning of the 20th century. By the end of this period throughoutWestern Europe the relation between employer and worker was no longer tied to the ideology of servile hiring but was classified under the heading of the contract of employment. Although regulated to a great extent by the same general principles of law as other contracts, the contract of c o n t i n u i t y a n d c o n t r ac t 25 20 Maine 1931 (first published in 1861). 21 Fox 1974.
employment became distinct and autonomous.The employee’s subordination was given different shades of meaning, but basically it reflected the employer’s exercise of power in which there is control not only over what; but also where, how and when work must be done. With explicit reference to Patrick SelimAtiyah22,Veneziani notes the “curious fact” that despite an apparent freedom of contract the movement from status to contract was never completed in labour law. Its contractual model, on the contrary, simply underlined the employer’s factual power and legal right to dictate the terms of the agreement. Collective bargaining and protective legislation developed in spite of and largely outside the framework of general contract law regulations.23 One point of departure for Bob Hepple24 is the idea that the same rule can have different functions at different times depending upon changes in material society. From a perspective of comparative legal history, this has been expressed by AlanWatson:“a rule transplanted from one country to another… may equally operate to different effect in the two societies, even though it is expressed in apparently similar terms in the two countries”.25 An example is the material change in function of the Romanistic concept of locatio conductio (letting and hire) in the civil law countries, which gave a legal support to the employer’s power and control of dependent workers in large-scale capitalist enterprises. According to Hepple, a far more complex relationship, and a subject for comparative studies, is what Watson has described as “the inner relationship” between different systems. The search for such a relationship has rested upon the belief that mankind follows the same path of development, the belief of some natural relationship between all legal systems, that each system follows the same process, until special national characteristics are p a r t 1 , c h a p t e r 1 26 22 Atiyah 1979, p. 523. 23 Veneziani 1986. See also Kahn-Freund 1977 and Atleson 1983. 24 Hepple 1986a, pp. 17-19. See also Renner 1929, 1949. 25 Watson 1974, p. 20.
imprinted upon it.This approach, which was influential in the 19th century, through the writings of legal anthropologists such as Henry Maine still dominates many current theories of labour law. One example is the claim that there is a universal trend in democratic industrial societies towards “juridification”.26 Another illustration of this deterministic opinion is the much-criticised convergence thesis that the “logic of industrialism” - i. e. the structural requirements for industrialisation or for an efficient labour market - necessarily involves the expansion of government.27 Still another is the thesis that the “nature of the firm” demands the subordination of the employee to the employer: Hepple expressly rejects such a purely functional approach,which treats legal history as a series of evolutionary and inevitable stages in response to the demands of a changing working life. He suggests an alternative view, namely that the development of a legal system, and in particular labour law, is the product of a variety of historical factors which are neither “necessary” nor “natural”. Capitalist industrialisation opened up a number of options and the choices made were not inevitable solutions to the social problems. Modern labour law should be seen as the result of the struggle between different social groups, and competing ideologies and beliefs; the result is what they can force or persuade other groups to let them have. “The crucial element in the making of labour law is power”. In every system of domination, the rulers have to persuade the ruled not only that compliance is necessary in order to avoid unpleasant consequences but also that compliance is right. In an c o n t i n u i t y a n d c o n t r ac t 27 “In other words, the right of direction and the employee’s duty of obedience are natural components of the market economy, since they increase the competitiveness of the firms.”28 26 Simitis 1984. 27 Hepple 1986a, pp. 1-4. 28 “Arbetsledningsrätten och den anställdes lydnadsplikt är med andra ord naturliga inslag i marknadsekonomin, eftersom de ökar företagens konkurrenskraft.” Nycander 2002, p. 80. See also Coase 1937 and Malmberg, 1997 pp. 41-44, 49, 245-246.
absolutist system, such as the paternalist German Empire, this sense of moral obligation rests upon what Max Weber called “traditional power”.29 In a liberal constitutional state, however, the typical form of legitimisation is legal “rationality”.The law thus appears as a neutral and rational body of rules, discovered by objective principles, which commands universal respect.30 Hepple raises the question whether this legal rationalisation in general, has been paralleled in a growth of rationality in the sphere of labour relations, and if so, at what speed this growth of rationality has developed. His conclusion is that labour law as it developed in Europe can be seen as an alternative both to laissez-faire and to the creation of some form of socialism.31 Alan Supiot has also treated the changing function of legal institutions. He points out that the idea of contract means obligations for both parties; work in exchange for money.At the same time it is impossible to disregard the fact that the theory of a contract has been able to remain only through a complete mutation of the old idea of the letting of services (locatio conductio) and by including some central parts of pre-industrial and paternal notions, especially the recognition of the employee’s personal obligations to his opposite party. The basic legal concept concerning the relation between employer and employee is built upon inequality. Labour law and its actors are fed by this tension between the idea of freedom of contract, which presupposes the autonomy of the parties, and the idea of subordination, which excludes this autonomy.This fact explains the influence of public law on labour law, which is the political system’s effort to correct some effects resulting from the principal of inequality. Supiot also focuses on an issue which is of special interest when analysing Swedish labour law history before its formative period, which started around1885.According to Supiot, theWestern p a r t 1 , c h a p t e r 1 28 29 Weber 1947, pp. 328-329. 30 Wennström2003, pp. 19-20. 31 Hepple 1986a, pp. 12-30.
legal conceptualisation concerning labour relations can be followed along two different tracks: the Romanistic and the Germanistic tradition. The Romanistic tradition starts from the Roman law concept locatio conductio, which concerned contracts on the hiring of things, more precisely when a master (dominus) temporarily allowed another person to dispose over his slave. Supiot claims that this model was transferred to modern society.Thus, the great post revolutionary private law codes, such as the French (1804), the Dutch (1838) and the Italian (1865) assigned contractual analysis a central role for the development of legal concepts concerning labour relationships.This assignment was in turn aimed at eroding the established corporate organisation of society in which the individual received competence only if he or she was integrated into an interest group that was accepted by the state. In comparison with the personal and hierarchical subordination that characterised the corporate organisation, contractual thinking could be a guarantee for the worker’s individual integrity, which made him able to negotiate about his own work force.The model presupposed a free contract regarding hiring, by which the worker was transformed into an object, a commodity that conceptually was separated from his person. The Romanistic culture is also alleged to have influenced the English and British conceptions of labour relations. Common law elaborated significant procedural aspects, which meant that the acknowledgement of individual rights was subordinated to the right to pursue a lawsuit. British labour law history, however, contrasted with most European continental countries, which, beside the general theory of contract, created a specific concept of contract of employment. In Great Britain the pre-industrial concept of “service” became the cornerstone of a distinction between contract of service and contract for service.The concepts were developed case by case and the courts showed a considerable aversion to abandon concrete definitions of different kinds c o n t i n u i t y a n d c o n t r ac t 29
of services in favour of creating a general concept of employment. The other tradition, which Supiot calls the old Germanistic law, represents an apparently different line according to which the relationship between master and servant entailed a personal connection, marked by mutual fidelity and by a type of loyalty that leads one to think of the family. Such notions of a personal connection, duty of loyalty etc., often appear in historical analyses of the corporate associations which emerged in the Middle Ages and survived until the guild legislation was repealed during the 19th century.This retrospective legal culture tends to regard a labour relationship as a personal appendix to a greater community. In its most exaggerated manifestation it has resulted in a rejection of every contractual reference for a legal analysis of labour relations. Instead, the foundation of the relationship is said to be the mere sociological fact that the worker is “integrated” in a community of “Gemeinschaft”. Such established facts or positions, which in German often are named Tatbestand, constitute the real legal source of the labour relation, and give the members of the community their legal status.Thus, the labour relation is characterised as a matter of the law of persons or of family law, rather than as a matter of the law of contracts and of obligations. Supiot asserts that the influence from both these views - on the one hand contractual thinking, which emphasises the individual’s free will and on the other hand a pre-industrial, patriarchal theory on status - has been obvious in all Western countries as well as in EC law.32 This idea of an old Germanistic tradition of Treue, however, has been questioned by German legal historians. Karl Kroeschell, among others, has claimed that it is an anachronistic creation, expressed by representatives of a mythical Germanism, such as Friedrich Carl von Savigny (1779-1861) and Otto von Gierke (1841-1921) during the 19th century, as well as in a perverted form during the Third Reich.33 p a r t 1 , c h a p t e r 1 30 32 Supiot 1994, pp 13-38, p. 14, fn 3. See alsoVeneziani 1986 andVigneau 1997. 33 Klatt 1990; Kroeschell 1995.
Still, there is no doubt that the idea of the employee’s openended duty to obedience and fidelity shows vitality up to this very day. Still, there is no doubt that Swedish law students today are taught that the contract of employment is essentially a relationship of inequality and obedience. Against this background, the central issues of this study can be specified as follows. ) How did the doctrine about the worker’s far-reaching duty of obedience emerge in Swedish labour law? In what manner had Swedish legislators and legal scholars treated the relationship between master and servant, and between employer and employee, before the labour court made its decisive decisions around ? ) For what reasons canWinroth’s opinions about the form and content of a labour contract and the master-servant relationship be characterised as a breakthrough of “the modern thinking about contract law”? Labour law may seem to have a relatively short history when focusing on the social-political significance of wage labour and industrialisation. In most Western countries it became recognised as a distinct division of law only after the Second World War. Not until the end of the 19th century, did wage labour and the employment relation become the “socially typical” and indispensable means of subsistence for the vast population. Not until then did the historical genuine and central issues concerning the balance between economic efficiency and protection of the worker become focused on making corresponding legal rules. One of the central issues concerned the legal character and regulation of wage labour. However, as soon as one starts looking for the ideological foundations of its general principles, there is reason to pay attention to the European legal history of pre-industrial time and its underlying assumptions, which can make the legal rules of our own time more understandable. In doing so, we c o n t i n u i t y a n d c o n t r ac t 31 1. 3 central i s sue s and plan
will relate the Swedish development to European legal history as well as to the formation of the Swedish model of collective selfregulation. After this introduction follows a study (II), which focuses on the Swedish legislation and legal writing during l’ancien régime. The period in question stretches from the medieval codes of the 13th century until the establishment of the Swedish Code of 1734 and the writings of David Nehrman. Part III analyses legislation and scholarship from around 1800 until the breakthrough of industrialisation in Sweden around 1885. Special interest is paid to the possible significance of Alfred OssianWinroth’s opinions. Part IV studies legislation and legal writing during the formative years of Swedish labour law, following the abolishment of theVagrancy Act in 1885 until the establishments of the Acts on Collective Agreements in 1928 and the labour court’s important decisions around 1930. PartV summarises and discusses the results from a long-term perspective. Each of the parts II-IV ends with a summary. Fully aware of that the summaries may lead to some reiterations, it is my hope that they will make it possible to read the parts separately. p a r t 1 , c h a p t e r 1 32 cont i nu i ty and cont ract Historical Perspectives on the Employee’s Duty of Obedience in Swedish Labour Law h
In this study (part ii) we will consider the Swedish Code of 1734 and the writings of the Swedish scholar David Nehrman (16951769). Did they bring about any significant changes concerning the legal analysis of the tjänstehjons- or legohjonsförhållandet, hereinafter called “the master-servant relationship”?The period and the subject in question are of interest from a legal-historical perspective as well as for an understanding of modern labour law. For Sweden the17th and18th centuries formed a period of great reforms and intense influences from abroad.The year 1660 signifies the high-water mark of the country’s short existence as the leading Protestant power in Europe. The southern provinces of the Scandinavian Peninsula had been won from Denmark and the Baltic provinces of Estonia and Livonia belonged to Sweden, as did large parts of Pomerania and various cities in Northern Germany. Sweden’s position as an empire was to collapse as early as in 1718, but the reorganisation of the administrative, political and judicial system has in its main traits persisted until this day.The so-called Age of Liberty (1718-1772) was not only a period of great significance for the Swedish model of parliamentary polity and separation of powers. It also forms an important backdrop for analysing current Swedish legislation and legal writing.34 c o n t i n u i t y a n d c o n t r ac t 33 “…is founded upon the law of Nature itself…” part i i , chapter 2 2 . 1 purpose, background and theoret ical points of de parture 34 Strömholm1991,p. 24. 2 David Nehrman and the Code of on the master-servant relationship
During the 17th century, the need for a thorough revision of the medieval national codes grew stronger. In1686 a legislative commission was appointed and given the task to establish one unified law for the whole of Sweden.The commission worked carefully through every area of law. Several drafts were delivered which were scrutinised inter alia, by the Courts of Appeal and by Swedish representatives in the provinces abroad, before the Four Estate Parliament eventually passed the new code in 1734.The code, which still is formally in force, was the first pan-Swedish one, even though special regulations remained for rural areas and towns.Another feature was that the code was intended not to contain any rules concerning constitutional issues, privileges given to individuals or directed towards particular professions, trades or commerce. Legal historians have held different opinions about the innovativeness of the code.Was it an “Enlightenment Code” or just a continuation of an old tradition?35 Stig Jägerskiöld has stated that the Swedish Code of 1734 was the product of a new era. He refers to the fact that the members of the law commission and their colleagues, among others Samuel Pufendorf (1632-1694), were inspired by the relatively recent ideas of a secularised and political-instrumental legal theory. Jägerskiöld argues that a legal reform was rather unpopular at the time when the code was prepared.These factors explain why the code, for tactical reasons, had to be presented in a traditional disguise by means of a casuistic style, and why some of the men involved stated that the code did not mean much more than a modernisation of an already established law.36 Hannu Tapani Klami has characterised the code as “the first modern Code of Enlightp a r t 1 i , c h a p t e r 2 34 35 The meaning of “Code” and “Enlightenment” have been discussed by among others van Caenegem1993, pp.42-43, van Caenegem1988, pp.115-116and Zweigert & Kötz 1992, pp. 76-77, 87-99. See also Halpérin 1986. 36 Jägerskiöld 1983; Jägerskiöld 1984.
enment” and seen it as belonging to the same legal ideological tradition as the French Code Civil of 1804.37 Claes Peterson, on the other hand, claims that the Swedish code continued a well-established European legal thinking. In particular, Peterson points out, the statements made by the preparatory commission regarding the qualities of an “Ideal Law” continued a tradition traceable far back in time. Society and law were regarded from the viewpoint of a theological-normative programme, with the aim of coming as close as possible to the divine order.38 A similar opinion is expressed by Kjell Åke Modéer, who has written that the Code of 1734 was not a forward-looking or remodelling legislation but contained those rules that in different ways had been accepted by statutes and court decisions.39 Rolf Nygren has emphasised the significance of the reception and that the code can be seen as the consequence of a “second surge” of Roman law influences which trickled down from the practice of the courts of appeal.Thus, every paragraph of the code’s Book of Commerce (Sw. Handelsbalken) could be regarded as a codification of this case law.The opposite contemporary movement, which emphasised the specific Swedish traits, was of less legal significance. Furthermore, the documents of the law commission, which was appointed in 1686 and prepared the code, show a similar strong influence from abroad.40 Konrad Zweigert and Hein Kötz assert that even if the Swedish Code of 1734was produced in a period of massive influence from the European continent, particularly through the appellate courts, it shows few signs of influence from Roman law.They use this conclusion as one of several points of departure for treating the c o n t i n u i t y a n d c o n t r ac t 35 37 Klami 1981, p. 11. 38 Peterson, C1985, pp. 273-299. See also Lindberg, B H1992. 39 Modéer 1997, pp. 106-112. See alsoWagner 1986, p. 30. 40 Nygren 1998, pp. 103-109.
RkJQdWJsaXNoZXIy MjYyNDk=