As we have seen, the most important representatives of the historical school in Germany attached great importance to the protection of the established order, to customs and doctrine as legal sources. Moreover they emphasised the switch from status to personal autonomy and the separation of family law as an independent area of private law. Considering these four characteristics, it is important to investigate how Savigny and Windscheid treated legal issues concerning the relations between master and servant. Did they place them among the law of obligations and its arbitrary and temporary contractual relationships? Or did they place them among family relationships, which according to Savigny were determined to continuing existence by mankind’s organic nature, and bore the character of necessity in itself? Savigny answered this question clearly by placing the masterservant relationship in the same sector as the marriage, namely family law, not in the law of obligations or contracts.When analysing the national and “German” character of the master-servant relationship, he appeared to reject the ancient Roman law at the same time as he used it for his analysis. Since medieval times, he wrote, several new legal institutions had emerged on the soil of Germanic law. Like the family relationships in ancient Rome, these institutions were primarily influenced by “an ethical component”. For correctly grasping the “nature” of these new institutions, one had to sort them partly into family law and partly into constitutional law (Ge. Staatsrecht).Among these institutions was, according to Savigny, the relationship between the landlord and the farmer and in particular German serfdom. By a continuing German legal development had subsequently arisen one of the most frequent current legal relations, namely the law between master and servant (Dienstbotenrecht). Savigny admitted that for this type of relation, the Roman law offered only one contract, namely the locatio conductio, but this p a r t 1 i i , c h a p t e r 3 78 3. 6 savigny and windsche id about labour re lat ionshi ps
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