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.
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