of services in favour of creating a general concept of employment. The other tradition, which Supiot calls the old Germanistic law, represents an apparently different line according to which the relationship between master and servant entailed a personal connection, marked by mutual fidelity and by a type of loyalty that leads one to think of the family. Such notions of a personal connection, duty of loyalty etc., often appear in historical analyses of the corporate associations which emerged in the Middle Ages and survived until the guild legislation was repealed during the 19th century.This retrospective legal culture tends to regard a labour relationship as a personal appendix to a greater community. In its most exaggerated manifestation it has resulted in a rejection of every contractual reference for a legal analysis of labour relations. Instead, the foundation of the relationship is said to be the mere sociological fact that the worker is “integrated” in a community of “Gemeinschaft”. Such established facts or positions, which in German often are named Tatbestand, constitute the real legal source of the labour relation, and give the members of the community their legal status.Thus, the labour relation is characterised as a matter of the law of persons or of family law, rather than as a matter of the law of contracts and of obligations. Supiot asserts that the influence from both these views - on the one hand contractual thinking, which emphasises the individual’s free will and on the other hand a pre-industrial, patriarchal theory on status - has been obvious in all Western countries as well as in EC law.32 This idea of an old Germanistic tradition of Treue, however, has been questioned by German legal historians. Karl Kroeschell, among others, has claimed that it is an anachronistic creation, expressed by representatives of a mythical Germanism, such as Friedrich Carl von Savigny (1779-1861) and Otto von Gierke (1841-1921) during the 19th century, as well as in a perverted form during the Third Reich.33 p a r t 1 , c h a p t e r 1 30 32 Supiot 1994, pp 13-38, p. 14, fn 3. See alsoVeneziani 1986 andVigneau 1997. 33 Klatt 1990; Kroeschell 1995.
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