There is also room for reading an influence from the historical school into his opinions about legal sources, since he, besides legislation and preparatory works attached great importance to the established order and custom (Sw. sedvänjan).Winroth wrote that if neither legislation nor a contract provided guidance, custom ought to be the determining source, since it was most likely that the parties had not diverged from what was customary in other cases. In contrast to Savigny however,Winroth did not attach great importance to legal science as a legal source, nor to the benefit of a legal scientific method.The role of the Swedish legal scholars was limited to describing those customs which were observable in peoples’ ways of living or in the courts’ decisions.These statements did not restrainWinroth himself from using a scientific legal method to display a considerable legal political creativity when analysing labour relations.229 It is well known that Winroth placed the master-servant relationship within the law of obligations - more precisely among the institutions concerning hiring (lega) - and that he made a clear distinction between the hiring of things (saklega) and the hiring of services (tjänstelega).230 He emphatically rejected Savigny’s and Schrevelius’ ideas that the relationship in question belonged to family law. He meant that the master-servant relationship was a characteristic feature of “Germanic” law and modern society which had no influences whatsoever from classical antique society. The relationship was founded on a voluntary agreement; the parties were free and their purposes purely economic.231 Winroth elaborated his theses further in an analysis of service contracts. In so doing, he showed several features that corresponded with the work of German private law professors and their passion for complicated systems, packed with superior and subordinate concepts. In a footnote, covering more than two pages, he started by rejecting all previous efforts made by Swedish p a r t 1 i i , c h a p t e r 4 108 229 Winroth 1878, pp. 41-42; Sundell 1987, pp. 169-172. 230 Schmidt, F 1959, pp. 12-13; Peterson, C1984, p. 62. 231 Winroth 1878, pp. 13, 20.
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