A common characteristic of 19th century legislation in Europe was the relaxation of the rules which had been created for or by the guild system in order to control trade and the workforce. It is often claimed that modern labour law in Europe was born when freedom of trade was introduced. The form of government under which it developed was liberal constitutionalism.124 However, both in Great Britain and on the Continent, the relationship between employer and worker developed in the shadow of formal, political freedoms and within social and economic structures that were still, to at least some extent, tied to the old society. In the post-revolutionary private law codes on the Continent, the regulation of the relationship between master and servant was developed from the so-called locatio conductio.This legal institution concerned hiring and originated in classical Roman law.125 A number of different types of locatio were considered as being on the same level; their similarity lying in the fact that they had a res (thing) as the central feature of the contract.They were objectivised by the conception that labour could be distinguished from the person who actually hired out his service. The identification of manpower as a commodity that can be exchanged was influenced of the doctrines of Adam Smith and the French physiocrats. These contractual points of departure corresponded well with the notion of employment as a relationship between equals. Furthermore, it paved the way for emphasising the distinction whether the good promised was considered as an activityitself and productive of something useful or as the result produced by the work. p a r t 1 i i , c h a p t e r 3 68 3. 4 the making of labour law in 19th century europe. some trai ts 124 Hepple 1986a, pp. 17-19. 125 See above Part II.
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