c o n t i n u i t y a n d c o n t r ac t 153 public consciousness, das Gemeinbewusstsein.309 Gierke severely criticised the BGB draft of 1889 for being too “Romanistic”, for running away from adjusting the legal rules to current social realities, and not paying sufficient regard to “the peculiar, mutual relationship of ethical and social substance, which caused the entrance into a professional organism”. Referring to his “Genossenschaftslehre”, Gierke introduced a specific category of private law, namely “communities by virtue of superior power” (Gemeinschaften kraft herrschaftlicher Gewalt).310 He claimed that the modern contract of employment had its origin in a particular “Germanic” law relationship between master and servant, namely the “Treudienstvertrag”. From the very beginning, this relationship had been a personal law contract by which the servant or vassal placed himself under his master’s power and swore fidelity to him. Gierke then drew a developing line from the Germanic “Gefolgschaft”, via the vassal andGesinderelationships, through the medieval guild system right up to the modernDienstvertrag. In this legal history, the guiding criteria of continuity had been the parties’ mutual loyalty.Within the framework of the law of privileges and particular professions, Germanic legal patterns had been able to resist the strong reception of Roman law: Thus, the old Germanic Treudienstvertrag had filled legal gaps and been transformed to a contract within the law of obligations, however without scraping its essential components. Even if aspects of commercial law and individualistic tendencies had gained increased significance, the mutual bond of fidelity had never lost its natural content of personal law. Moreover, the factual development around the turn of the century in 1900, such as the “There are the Germanic fundamental ideas which have lived on in our labour contract law and … preserved their creative virtue”.311 309 Gierke 1895, pp. 116-117; Gierke 1915, p. 93; Supiot 1994, p. 17. 310 Gierke 1895, pp. 697, 701. 311 Gierke 1914, p. 54 (my translation).
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