Such a conclusion, on the other hand, seems to be a truth with modifications. Like Lars Björne one can ask whether the argumentation we have met from the German law professors rather indicates that the metaphysics of natural law were transplanted to the land of positive law.164 Old natural law ideas seem to have survived in the disguise of historical continuity, customary law and a putative non-political legal science. Leading scholars, not least Savigny, expressed opinions that were far from the notion that law should treat all individuals equally. Private law was divided into family law and property law, and the latter category in turn was divided into the law of obligations and the law of things.The duties of the family law arose from their members’ status, while in the law of obligation the duties or obligations arose from (the will of) the acting parties themselves.165 Like Edmund Burke’s organic theory, this mode of thought was apt to serve as a smoke screen for political inclinations.The switch from status to person seems to have included neither the emancipation of women nor workers. Savigny faced considerable problems when trying to combine the idea of personal autonomy with strong protection of established positions and customs. His safety-valve was family law, where workers as well as women could be put in a subordinate position.Windscheid does not even seem to have pondered the problem, but left without further comments the worker’s subordinate position as an inherent component of a labour contract. How did contemporary Swedish lawmakers and legal scholars treat these issues? c o n t i n u i t y a n d c o n t r ac t 81 164 Björne 1998, p. 230. 165 Savigny System, I, pp. 345, 367, 369.
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