duties. In 1932 the court expanded the worker’s duty of loyalty by using a teleological method that focused on the spirit of the law.327 Thus Germanistic mysticism,Marxist or materialistic class analysis and an allegedly neutral legal science reached a similar conclusion, namely that dependence, subordination and inequality were distinctive features of the “nature” (Wesen) of the contract of employment.As a consequence, the contractual principle was pushed into the background. The guiding norms for the employment relationship were brought back to factors which lay beyond the reach of the parties to the contract and influenced its content regardless of the individual actors’ intentions.This doctrine’s sole theoretical foundation was a notion that the worker had been integrated into an organisation. Labour law’s decisive legal source was the state of things - which could be described as established positions of power as well as established customs. Such a conclusion of course could be used either for limiting the employer’s prerogatives as well as for strengthening them. In its most exaggerated version, the outlook led to a rejection of every contractual reference for analysing the employment relationship. This fact, das Tatbestand, or more precisely the actual existence of the employer’s supremacy, not the deduction from a concept of a contract, gave the organisation’s members their specific status. From this standpoint it was just a short step to not recognising the employment relationship primarily from the view of legal norms but rather from concrete ways of living. Otto Kahn-Freund, among others, objected to the ideas of a Gemeinschaft as a legal source and warned about the notion being perverted and used by totalitarian political doctrines.328 p a r t i v, c h a p t e r 6 160 327 Münchener Handbuch zum Arbeitsrecht 1992, p. 815. 328 Klatt 1990, p. 351.
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