ambition to overcome the dichotomy of state-society which had been strictly observed by the Manchester liberals. Irrespective of being conservative or liberal, all these German debaters shared the view that the effects of a dissolute household economy and of industrialisation were so serious that the state had to intervene in the private sphere. Many claimed that legal scholarship and practice must be adapted to the new social circumstances. Greater attention should be paid to sociology, matters of legal policy, working life’s demand for an intertwining of public and private law and in particular the principle of the unity of human labour as the embodiment of the human personality. Faced with the special task of filling gaps in the legal system, many jurists tended to play down the method of deducing legal consequences from legal concepts in favour of relying on teleological considerations about what the political purpose of law might be.307 When it came to the analysis of labour relations, an intricate interaction proceeded between doctrines on contract and diffuse notions about the importance of maintaining pre-contractual terms of status. One very important opinion stated that the contract of employment was not comparable with private law contracts such as sale or rent, but rather with a “community contract” (Gemeinschaftsvertrag).Thus the relationship between the employer and his employees was treated as a peculiar branch of personal law, permeated with principles of mutual fidelity and loyalty.The most predominant representative of this line of thinking was Otto von Gierke (1841-1921), who was professor of private and constitutional law at the Berlin University from1872.308 Like the advocates of the historical school, Gierke assumed that historical continuity in itself constitutes an important legal source. The individual could never be treated as standing free from the community in which he acted, and the essence of law was not to be found in the will of the individual or the state, but in the p a r t i v, c h a p t e r 6 152 307 The German “academic socialists” and the social issue are discussed in Peterson, C 1984, pp. 36-44, 58-59. 308 Klatt 1990, p. 350.
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