Download Democratic Theory and the Problem of Rights

Democratic Theory and the Problem of Rights: Reflections on Labor Regimes.*
Reproaching Prussian parliamentary liberals in 1862 for imagining that they could
rely on a liberal reading of constitutional rights to counter arbitrary action by the
Prussian regime, Lasalle said: "Constitutional issues are not at bottom juristic issues,
but questions of power. The real national constitution has its being only in the actual
power relations subsisting in the nation. Written constitutions have value and durability
only when they accurately represent the prevailing power relations." Die
Verfassungsreden. Eduard Bernstein, ed. Berlin: Cassirer, 1919 vol. 2, p. 60.
Lasalle insisted that effective constitutions are to be taken as nothing more than
written statements of power relations. The rulers of a state can freely ignore things
written in the constitution so long as they have the power to do so and find it in their
interest. The power, in turn, is a function of their control over coercive machinery and,
ultimately, their command over the means of physical violence. When opponents of a
regime wrap themselves in constitutional assurances, they bare their weakness. The
servants of power do not require such poor disguises: "The royal regime, gentlemen,
has practical servants, not orators, such practical servants as one wishes you." (Ibid.)
But Lasalle's vigorous statements do not really make the case against the "actions" of
jurists and the political pertinence of legal argument as clear as all that.
Already in the first of his two speeches on constitutions, he had indicated that
the effectiveness and bias of the regime's administrative and judicial law-enforcement
machinery are as important as its control over arms, contrasting the readiness with
*
Paper presented at Centre of Criminology, University of Toronto, February 16, 1988
1
which Englishmen, as he supposes, take arms against usurping magistrates, with
German docility. Moreover, he cites the overwhelming potential for power possessed
by the people and maintains that it can be made actual and decisive by means of
organization. In his second address, then, given a few months later, he treated the
power of the regime and of its opponents as importantly determined by the distribution
of legitimacy.
On the premise that the spectacle of interplay between parliament and ministers
had become an important support for the regime's legitimacy, he urged the oppositional
parliamentarians to boycott parliament, as a counter to the regime's unauthorized
military policy. Once the legitimating impact of legal forms is given substantial weight
and the possibility is raised that power relations may be changed by means of levers
internal to the legal order, the relevance of what jurists do when they engage in the
contest to establish law appears much more substantial.
I begin with two very general questions:
(1) How do demands made on legal institutions work back on the design of legal
institutions?
(2) How do changes in the design of legal institutions work back on the general
design of political institutions, what A.D. Lindsay called the effective constitution?
The most familar modern theoretical approaches to these questions are:
(1) Liberal theories, centered since Dicey's time on the concept of "rule of law.”
The generality, concreteness, universality of law are undermined by the demands on
law characteristic of the regulatory and/or welfare state. The decline of the rule of law in
this sense corresponds to a rise in arbitrary rule and the transformation of the political
2
system (e.g., Friedrich Hayek, Theodore Lowi).
(2) Progressive theories of legal development, often associated with evolutionary
theories, treat changes in forms as adaptations to changing demands generated by
changing social needs (or expectations) and the central problem is to keep changing
legal principles and procedures to make them serviceable to law as a principal
instrument of orderly social change. Failures in these respects undermine democracy
as a method of collective problem solving for the public (e.g., Phillip Nonet and Philip
Selznick, Lawrence Friedman, J. Willard Hurst).
(3) Marxist theories of law as bourgeois ideology, masking and/or actualizing
class domination through the state.
This conventional classification scheme only hints at the available range of
sophisticated and richly elaborated versions of these respective approaches, and it
ignores important differences within each category. Present purposes are sufficiently
served if this familiar material helps to situate our more detailed analyses of narrower
issues within the wider context to which they belong. Two representative contemporary
formulations will be compared below. This examination will show, I hope, why I prefer
to explore these sweeping questions in the more densely differentiated settings of
specific issue-areas. Our interest is in political theory; our work requires legal
politological analyses. The relations between power and law are matters of patterned
nuances, not sweeping assertions.
The legal regulation of labor relations is often accorded a special status in both
law and political theory. Its special status in law arises from the difficulties of reconciling
the principal instruments and institutions of private law (whether common law or
3
codified) with the demands, conflicts, and social innovations generated by the interplay
between dependent labor and employers. Accordingly, the field has been governed at
least in important part by distinctive "labor codes" legislatively setting down norms and
procedures to regulate certain aspects of these relations. A striking feature of much of
this legislation, however, is first, that it exemplifies regulation by very imprecise
principles, leaving much to the discretion of administrators or courts, and, second, that it
is often designed to give legal effect to shifting bargains struck among contending social
actors whose legally recognized diverse social identities, resources and functions differ
markedly from the general attributes of personality that modern legal systems normally
claim to make central, especially in the law of contract.
These aspects appear, for example, in the persistent attention to status in
legally-set standards of "fairness" in wages, hours, and other conditions of employment
and conditions of work. They appear even more strikingly in legal treatment of the
activities and organizations surrounding collective bargaining between organized
employees and employers, as exemplified, for instance by the diverse legislative
innovations that have been used to deal with the difficulties that most most modern legal
systems have had in comprehending the legal effects of collective agreements in
relation to individual contracts of employment.
As both Max Weber and Emil Durkheim pointed out nearly a century ago, the
law of employment puts special pressure on the legal system that the former
characterized as formally rational in principle and tendency. For political theorists
whose conception of "rule of law" approximates closely to Weber's model of formal
rationality, with its Kantian background, -- and this includes most thinkers oriented to
4
continental Liberalism (Hayek, Lowi, Neumann) -- these aspects of labor law make it a
matter of considerable concern. Converging with this are analyses grounded on
conceptions of individual substantive rights of free contract.
There has been a century of resourceful speculation within both mainstreams of
liberal political thought, seeking to mitigate or overcome this stubborn pervasive
anomaly, and we will return to some contemporary efforts. But the problems cannot be
said to have been rendered obsolete from the liberal point of view. What law does with
regard to labor relations has a major impact on the kind of law prevailing in the civil
sphere and it has a major impact on the kinds of collective actions and achievements
that are accepted as helping to shape the social context of the political constitution.
The demands on legal institutions first arise most evidently in the context of
court actions -- some prosecutions (e.g., criminal conspiracy), civil litigation in torts and
contracts, and actions in various magisterial courts. Then comes legislation and, now
the preponderant contexts of administrative and regulatory law. Throughout, the
developments are importantly played out through institutions of non-state law. We can
leave aside for now the question of whether to consider these as part of the "legal
institutions" in the sense of our first basic question or as manifestations of demands.
Periodically, the demands (and their consequences) expressly become matters of
constitutional law, as in the contexts to be discussed. Because of the special
ambiguities attaching to constitutional law, its intermediate position between questions
of power and questions of law, such constitutionalizing can also be understood as a
locus of new political demands on the labor regime.
To sort through this welter of possibilities, then, I use the concept "labor regime"
5
to characterize the pattern of juridified institutions established within a given labor
market at any given time, serving to orient expectations and actions in the relationships
among state and non-state actors. As employed here, the term "regime" draws on two
distinct usages. While lawyers often use it to refer to the complex of juridified
regulations governing some issue domain, recent international relations theory has
broadened and deepened the concept. The distinctive feature of "regime" in that
context, and the feature that makes it of interest to us, is that it emphasizes not only the
quasi-legalistic "principles, norms, rules and decision-makers" around that the
expectations of the relevant political actors converge in a given issue area over an
identifiable period of time but also the power constellation that conditions the
effectiveness of the institution in question. The institution is not reduced to the power
factors and the power factors are not idealistically denied.
Among students of international relations, the point of the concept has been to
qualify the monistic "realism" that has dominated their study during the past generation,
to facilitate inquiry into the causal importance of quasi-legalized institutions where and
when they can be discerned, without denying the general force of power-oriented
systemic theory (Keohane, 1986). In adapting the regime concept to the constitution
and development of institutions in certain intranational issue-areas, the point is to
conceptualize institutions that have an important irreducible legal component but that
are shaped in important measure by the non-legal power resources that participants
bring into play. The lawyer's "regime" thus provides the starting point for analysis, but
the complex of norms and regulations is understood "realistically,” in conjunction with
the competing political designs at work in the field.
6
As a constituted pattern, a regime embodies a measure of resistance to
disruptive change; it places constraints upon the forms and exercises of power
deployed; but these characteristics differ significantly in degree from regime to regime
and from time to time in the life of a regime. A regime may be said to intend a preferred
type of outcome, but this design will be established in a structural tendency, subject to
even quite important exceptions, and not in a purely instrumental machinery. Regimes
differ as to complexity, flexibility, and tolerance of inner inconsistency or conflict, but all
display that visible blend of legal manner and power factors that mark the theory of
international law that is the paradigm for the concept itself (cp. Korsch, 1972). The
reconstitution of a regime -- i.e., a change in its structural tendency -- implies a shift in
the underlying power constellation.
In the study of labor, then, regime refers to the institutionalized political
organization of labor markets, comprising the patterned interactions among state
agencies and collectivities of workers and employers. When applied to the current
scene in Canada or the United States, the concept recombines the elements that are
conventionally distinguished as the industrial relations system and its public policy
environment. Without denying the possibility of a type of regime in which a collective
bargaining system is governed by a state-maintained settlement, the conceptual shift
facilitates inquiry into the political dynamics of such a regime, as well as into historical
sources and alternatives. When I speak of "demands" on the law in this context, then, I
mean demands on such a regime arising either from outside of its institutions or from
developments within its institutions that change their social functions and effects.
All three of the theoretical traditions broadly characterized above have paid
7
special attention to developments in the labor regime and have assigned them
importance beyond the immediate policy consequences for the organization of the labor
market. If we take Max Weber and Emile Durkheim as offering alternative
twentieth-century formulations relevant to liberal legal politology, it is worth noting that
both identify anomalies and innovations in labor law as posing unique challenges to the
liberal legal order, especially to the institution of contract. Von Mises and Hayek
simplify the liberal response, rejecting central features of most advanced labor regimes
on high political grounds.
For progressives, as witness the historically important themes of industrial
democracy and labor legislation, the emergence of collective bargaining and related
demands provides a decisive opportunity for reconstituting the "bundle of powers"
comprehended by the institution of property so as to orient the law to the needs of
persons under modern conditions. John R. Commons and Philip Selznick would be
representative Americans, while Lujo Brentano and Hugo Sinzheimer are the most
important German names. Whether to include McKenzie King in this company is very
debatable, but there is no shortage of Canadians.
In Marxist thought, the labor regime is of course the locus of the decisive
relationships within the capitalist order. This is where the exploitation of labor takes
place and where the class conflict is ultimately grounded and reproduced. Accordingly,
questions about the kinds of changes that can take place within this domain without
revolutionary overthrow have been especially stimulating and divisive in this tradition, as
have conflicting interpretations of developments.
To illustrate analytical problems and to suggest some of my own substantive
8
theses, I propose to compare two treatments of a similar new factor in the constitution of
two labor regimes. The factor is the introduction of a constitutional bill of rights, with the
concommitant question about judicial review of legislation. The first case involves Part
II of the Weimar Constitution (enacted in 1919), and the representative response to be
considered is that of the Socialist labor lawyer, Franz L. Neumann; the second case
deals with David Beatty's recent writings on the effects of the Canadian Charter of
Rights upon Canadian labor law. A principal reference point common to both is the
relationship between the respective constitutional guarantees of equality (RV 109 and
Charter Section 15(1)["Every individual is equal before and under the law and has the
right to equal protection and equal benefit of the law without discrimination ..."]) and the
powers of labor unions within the respective labor regimes.
In terms of our simplistic trifurcation of approaches, both must be treated as
hybrid cases, with Neumann representing a Marxism that is very strongly tinged by
progressivism and Beatty representing an ingenious mix of liberal and progressive
elements. Any deeper analysis of the issues, however, must abandon these preliminary
heuristic schematizations. I promise you that I will not engage in the pointless exercise
of debating whether Neumann is "really" a Marxist or Beatty "merely" a liberal. It is
pointless to reify such ideal types.
The illuminating theoretical issues between them concern the contrasts
between predominantly collectivist (or institutionalist) and individualist readings of basic
constitutional guarantees affecting social rights, and between two theories of
democracy. My own view is that Beatty's analysis is shown by the comparison to be
seriously flawed, but that it suggests important correctives to Neumann's historically
9
dated and radically incomplete design.
There are obvious objections to the comparison between Neumann and Beatty.
The constitutional provisions at issue are very different, as are the legal systems and
the labor regimes. Most difficult, political theory treatment of juristic texts must bear in
mind the performative or forensic dimensions of such interventions: legal discourse is
directed to legal doctrine and attempts to reshape doctrine. Its theorizing must be
constrained within that frame of reference if it is to work as legal discourse. A politicaltheory-grounded critique of such texts, accordingly, involves a measure of translation
and thus distortion and cannot presume to provide more than a critical perspective for
the legal theorist. But I think that it is possible to learn by putting the hardest of these
difficulties aside, and factoring out the others.
The respective bills of rights are very different. Among other varied details, the
Weimar charter of rights and duties expressly guarantees labor the right to unionization
and to an organized voice in certain vaguely delimited economic matters, while it also
guarantees the right to private property, as defined by law. The Canadian Charter is
silent on both points.
The fundamental differences between the two legal systems matter perhaps less
than might be expected, in the respects of interest here, since Weimar constitutional
jurisprudence was surprisingly oriented to American developments, including some
appropriations of the emerging sociological jurisprudence (with paradoxical effects).
Two contrasts must be noted, however. The Weimar Constitution, unlike the Canadian
Charter, makes no express provision for judicial review (and arguably assigns special
responsibilities to the President as "guardian of the constitution"). More strikingly, the
10
German legal system, and especially the higher courts, accepted the demands of the
Weimar Constitution only selectively, treating many of them as barely binding in law or
construing them in terms of a judge-made higher law of the German state, built upon the
more general clauses in the Civil Code (especially important with regard to the
substantive rendering of the equality clause: RV 109). These points are important
because they doubtless enter into Neumann's rejection of judicial review in defense of
equality claims. But they don't explain the argument away, in my view.
The two labor regimes share general features. In both, the central institutional
design comprises self-regulation through collective bargaining between autonomous
organizations of employers and workers, aiming at collective agreements superior to
individual contracts of employment with regard to the norms and procedures laid down
in them. In both cases as well, this autonomous design is massively limited by state
intervention and regulation, that is only partially qualified in turn by neo-corporatist
mechanisms of consultation and negotiation and by electoral organizations of the labor
movements. But the labor regimes differ in many respects, including aspects of special
importance to Beatty. Specifically, the Weimar labor regime provides for works' councils
in larger enterprises, and it eschews the familiar North American rule of exclusive
representation for administratively determined bargaining units.
These differences
are not relevant to the logic of Neumann's analyses, however, because he is hostile to
works' councils as anything other than local agencies of unions and because he aspires
to a unified union movement, that would enjoy monopoly of representation. In other
words, they do nothing to explain the contrasting approaches.
It might be objected finally that it is rather absurd to seek instruction from
11
arguments designed to bolster the Weimar system, except perhaps as object lessons of
things to avoid at all costs. I will proceed, however, on the assumption that responsibility
for the failure of Weimar lay elsewhere.
Neumann and Beatty are alike in that both employ teleological constitutional
analyses to ground their interpretations of the demands made by constitutionally
guaranteed rights. All specific provisions of their respective constitutions, they maintain,
must be interpreted by reference to a central purposive design (or sovereign
commitment). For both, the highest normative principle concerns the advance of social
egalitarianism. Neumann speaks of actualizing a social Rechtstaat -- an order that
institutionalizes processes of progressive social democratization, while Beatty finds a
"right to equality of liberty,” (cp. Dworkin) a principle that first of all empowers action in
behalf of individual autonomy for the most dependent.
Applied to the labor regime, these similar-sounding fundamental norms have
quite different consequences. Neumann argues that the actualization of social rights
depends primarily on the inner dynamics of the institutions that have been achieved in
the struggle for such rights. The principal actors within those institutions are collective
ones, and the decisive constitutional guarantees are those that give optimal safeguards
to the effective actors whose dynamism inclines them towards the normative goal. The
constitutional guarantee of equality, accordingly, must either be very narrowly construed
to deal with the most essential safeguards of legal procedure or it must be construed as
a non-justiciable regulative principle for collective actors. It must never be usable as a
basis for individual claims against the institutions and forces of progressive change.
Parliament is important here, but no less important are socially generated institutions
12
that serve social right without legislative juridification. His analysis is specified by
reference to arguably discriminatory regulations and proposals in labor law that favor
unions over employers in certain respects, such as asymmetrical rights of legal
representation and standing to sue for enforcement of collective agreements, as well as
challenges to the proposition that the right to strike somehow implies a balancing right
to lock out: unions represent great collective interests, Neumann maintains, while
employers represent nothing except the private interests of the proprietors.
Beatty contends that Charter rights must be understood as progressive levers of
change in the labor regime. Because of the special character of Section 1 of the
Canadian Charter ["The Canadian Charter of Rights and Freedoms guarantees the
rights and freedoms set out in it subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society"], his argument
proceeds in two stages. He argues for a very wide interpretation of the acts and
sources of power to which the guarantees of individual freedom in Section 2 ["Everyone
has the following fundamental freedoms: a) Freedom of conscience and religion; b)
freedom of thought, belief, opinion and expression, including freedom of the press and
other media of communication; c) freedom of peaceful assembly; and d) freedom of
association."] apply: so, for example, he treats all actions by unions as instances of the
state actions that the Charter limits, because of the role of state regulation in the labor
regime through the certification of unions, the legal enforcement of the universal agency
shop, the recognition of legislative powers in collective agreements, and the like. He
also argues that the "reasonable limits" clause of Section 1, authorizing exceptional
legislated incursions on guaranteed individual rights if they can be "demonstrably
13
justified in a free and democratic society" should be read as a charter for revising the
power relations between strong and weak in society. With "equal rights to liberty" as the
basic principle of the Charter, he maintains, the incursions permitted -- and in fact
promoted -- are primarily those that make for greater equality, provided also that
standards of proportionality are met -- i.e., that the gains in individual empowerment are
sufficient and that the losses in established individual rights are minimal.
He applies this line of analysis to a number of issues in Canadian labor law,
including mandatory retirement and the exclusion of certain classes of workers from the
principal labor regime, but ends up by denying the constitutionality of a central feature of
the labor regime, viz., the concept of exclusive representation by the union certified for a
given bargaining unit. This denies individual choice in matters of association without a
proportional compensation in the empowerment of the least advantaged. To achieve
the valid ends of the legislation entering into the labor regime, he maintains, it must be
reoriented in the direction of works' councils, where the workers' collectivity is formed on
lines more egalitarian than in the exclusive collective bargaining agent model.
I don't have the time to attempt an immanent critique of the legal arguments
adduced by the authors to defend their positions, although I have difficulties with both.
Instead, I want to call attention to two points of contrast. The first is that Neumann
conceptually links rights to historically differentiated collective actors in institutions,
making that a central feature of what he calls socialist jurisprudence and grounding his
position in the Marxist critique of individual property rights, while Beatty introduces
social considerations only at the point of balancing competing individual claims of right,
although he also thinks that the design as a whole somehow introduces a dynamism
14
tending towards such occasions, construing Section 1 less as a statement of exceptions
than as a mandate for change. The second is that Beatty treats the labor regime as
wholly juridified, by virtue of the important part that law plays in its operations, while
Neumann expressly treats it as constituted by changing constellations of interactions
between socially autonomous and state regulative factors. The historical differences do
not explain this contrast. It is above all this difference in the ways that the authors treat
the composition of power and law in this field that makes the comparison especially
theoretically fruitful. The differences in the interpretations of rights gain their full
meaning only in the context of the contrasting political theories, specifically in
contrasting theories of democracy.
Writing in Germany in 1929, when he was still a practicing Socialist labor lawyer
and not yet the academic political theorist he was to become in exile, Franz L. Neumann
(1929) warned against impending legislation designed to authorize and regulate the
emerging Weimar practice of judicial review. Letting judges assay the constitutionality
of legislative acts would threaten the collective gains already achieved by labor, he
maintained, and impede the movement towards industrial and social democracy. The
rights and duties laid down in the second part of the Weimar Constitution can contribute
to democratization, as they are meant to do, only if their actualization is left under the
ultimate control of democratic political and social processes (Neumann, 1930). At the
modern stage of development, according to Neumann, liberal guarantees of individual
rights against the state, especially as these are construed by courts, are ideological
camouflage for the power of proprietors who are in fact no longer individuals in any
important sense. While the inner logic of the constitution's guarantees, positive and
15
social, clearly points beyond such ideological individualism, the constitution's language
still reflects the element of compromise in the republic's foundation and leaves ample
room for the old anti-social jurisprudence. Moreover, for the judiciary to become the
final arbiters of the constitution would contradict the socially democratic design of the
constitution itself. The only way of reading the guarantees of fundamental rights in the
Weimar Constitution consistent with either democratic theory or socialist jurisprudence,
in his view, is to take them as formative commitments to self-rule, governed above all by
an egalitarian social ideal, i.e., as recognitions and constitutive empowerments of
ongoing democratic political and social processes. According to Neumann, these
processes comprise institutional developments in the social sphere as much as public
policy in law and administration, and they spawn patterns of collective mobilization and
assertion against the vested powers of property, as well as partially legalized provisional
collective bargains with it. But many of these dearly bought and still embattled
achievements are juristically vulnerable to challenges based on individual rights and
equality before the law in the liberal sense. In this context, judicial review would simply
reinforce the uses of the legal system as a prime instrument of arbitrary control in the
service of the class interests and class forces that have been otherwise thrown on the
defensive by the advances of collective democracy (Fraenkel, 1930; see Luthardt, 1986;
Kettler and Meja, 1988). According to this socialist jurisprudence, the actualization of
the rights decisive to labor depends on the vitality of popular social movements, their
penetration into authoritative institutions, including the specialized legal forums for labor
law, and the responsiveness of lawmakers and the legal system to these social
achievements.
16
Behind Neumann, of course, there is the whole Marxist tradition, whose central
tenet is its distinctive critique of the liberal doctrine of the individual labor contract. More
narrowly, there is the reformist pluralist current within that tradition, that looks to
collectivization of relations between labor and capital as a series of strategic steps in the
progressive expropriation of capital through an expropriation of its functions
(Sinzheimer, 1927; Renner, 1929; Kettler, 1984; Kettler, 1986). For Neumann,
democracy is collective popular power articulated through historically apt designs for
action, principally through majoritarian parliamentary rule and social organization for the
displacement of property-grounded power. Institutions are construed on the model of
collective agreements: they give a measure of stability for a time, reflecting the balance
of forces at that time. The rationality of the whole can only be shown by a
characterization of the whole epoch, since it is impossible to do more than to minimize
the role of power in its more arbitrary forms in a development inherently marked by
conflict and uncertainties.
A constitutional commitment to the democratic process is not empty, since it
represents a collective agreement of substantial weight, but it cannot be left in the
safekeeping of a high court that is structurally distant from if not hostile to this dynamic
reality. Consequently, judicial review is wrong not only because it is likely to result in
regressive judgments but also because it removes key issues out of the democratic
process, misleadingly obscuring their political character and thus contradicting by its
operations even the most favorable decisions.
Beatty deprecates politics. Democracy means a maximum of individual
autonomy for all. Politics allocates values on the basis of power, that is unequally
17
distributed and dependent on factors that politics cannot attack, unless it is controlled by
reason. Social reason undergoes a progressive development over time, but political
representation does not adequately reflect it. Law must do so. The constitutional
settlement embodies the new substantively democratic social ethics. A legal process
centered on "constitutional conversation" gives virtual representation to the politically
unrepresented; it institutionalizes substantive reason. Jurisprudence oriented to judicial
review is the centerpiece of democratic development because it produces and
reproduces authoritative constitutional conversation.
Stated so baldly, both positions appear extremist and implausible; and we know
that neither author lacks the ingenuity to subtilize their analyses so that they can
comprehend details and distinctions in interesting ways. Political theoretical models
encompass legal theories in loose ways, as I have noted earlier, and the question of
their proper logical relations cannot be further explored here. I simply want to
acknowledge that we are dealing with two sharp lawyers here, as well as political
theorists whose work is questionable at important points.
Beatty's challenge to the collective labor regime in Canada wrongly abandons
already jeopardized collective rights to an individual rights analysis and to a judicialized
process that cannot perform as he wishes. A jurisprudence informed by democratic
political theory should rather build on potentialities in the Charter for
protecting/strengthening institutionalized democratic relations and democratizing
forces, following Neumann's line of thinking. The fundamental freedoms of Section 2
must be understood to address individuals in the concrete relations that give actuality to
these abstractions: these are more likely to be collective and institutional than individual.
18
To counteract unwanted conservative implications of institutionalism, it is necessary,
first, to avoid false harmonistic theories of institutions, and, second, to develop a lean
theory of minimal participation rights and "principles of fundamental justice" (Section 7:
"Everyone has the right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental justice"
[explicated in sections 8-14]) for actors within institutions.
The case study illustrates some general problems of legal politology. In the end,
the question about the effects of new demands proved to be a contested question
whose answer depends in important part on political choices. My response to the
question about the impact of constitutional demands on the labor regime derives from a
political position that distrusts the total juridification of social issues that is implicit in
Beatty's response, not merely because of distrust of judicial intervention at all levels but
also because I think that questions of law are better answered when questions of
democratic power are given their due.
19
The Reconstitution of the Welfare State: A Latent Social-Democratic Legacy*
1. The "Crisis" of the Welfare State and the Law
The great challenge to contemporary political analysis and theoretical reflection is
posed by the much-discussed "crisis" of the welfare state in the wealthy nations of
western Europe and North America, by the attendant dramatic reversals of public policy
in several of the leading nations, and by the widespread loss of confidence and political
initiative among the welfare state's dedicated partisans (Dunn, 1984). Although it is
historically accurate enough to say that "the essence of the welfare state is
government-protected minimum standards of income, nutrition, health, housing, and
education, assured to every citizen as a right, not as a charity" (Wilensky, 1975, p. 1), a
broader use of the term seems justified by usage in the literature (Lowi, 1985), as well
as by analytical considerations. The new classes of expenditures and guarantees to
which the historical definition refers have been everywhere closely intertwined with
regulatory and planning measures, as well as with characteristic developments in the
organization of government and the constitution of the political process. As Luhmann
has pointed out, the welfare state utilizes law as well as money in the attempt to
compensate all citizens for disadvantaged interests (Luhmann, 1981: pp. 25-32). Fiscal
problems doubtless have fueled the allegations of "crisis,” but the debate is by no
means limited to issues directly affecting the public budget. The contemporary attack is
aimed against the whole complex of developments associated with the great "push" in
*Law
& Society Review, 21:1 (1987), pp. 9-47
20
the direction of the welfare state, that Jürgen Habermas correctly identifies as the
central political development of the twentieth century in these nations (Habermas,
1981).
According to many journalistic and merely ideological treatments, this "crisis"
refers mainly to the presumed excesses and consequent failures of redistributive fiscal
policies and regulatory interventions in autonomous social processes, especially
economic ones. The troubling manifestations of "crisis,” it is argued, can be readily
overcome by replacing the defective policies with ones that restore earlier emphases on
non-governmental mechanisms of distribution and social control. Cutbacks and
deregulation are the easy answer. More serious analyses of recent developments,
however, recognize that much more than policies are being tested. The disappointment
of well-established expectations as a result of fiscal retrenchment, for example, shakes
the foundations of complex social interdependencies (Glendon, 1981). Similarly,
de-regulation implies reallocations of power among organized collective social actors,
as well as changes in its forms. The progressive dismantling of the "neo-corporatist"
arrangements, that have only recently been identified as constitutive of the most
developed welfare states (Berger, 1981), affects important sources of integration and
legitimacy. In sum, the issues raised by the debate concerning the welfare state are
constitutional, in a functional sense, if not always in a legal one. They affect the forms
and contents of the rules that in fact define the norms for authoritative rule-making; they
point towards that intersection of legalized standards and publicly effective power that
constitute the order of the state.
Correspondingly, welfare state malfunctionings have often been measured by
21
such signs of legitimacy deficit as the surprising dimensions of an "unobserved
economy" outside the law (Feige, 1980), the increasing recourse to direct action by
hitherto quiescent groups (from blockades by private truckers to doctors' strikes), and -most importantly -- selective non-enforcement and extensive disobedience of regulatory
law (Reidegeld, 1980; Voigt, 1980; Weiler, 1983; Reich, 1984; Teubner, 1984). The
welfare state involves more than just an institutionalized complex of priorities and
commitments in public policy and a concommitant structure of corporate access to and
participation in public power. It also entails some shift in the predominant character of
law and in the effective constitutional framework that defines it. Most remarked over the
years have been the rising importance of administrative regulatory law governed by
statutes laying down only the most general purposive principles, and the consequent
narrowing of the domain of ordinary judge's law, whether civil or common (Hedemann,
1934; Jones, 1958; Unger, 1976; Nonet and Selznick, 1978; Mitnick, 1980; Hayek,
1973, 1976, 1979; Bernier and Lajoie, 1986). With this attenuation of the older pattern
of "legalism," historically important in the traditional constitutional designs of all these
nations (Shklar 1964), multi-partite consultation and negotiation had become an
increasingly important underpinning for decisions and adjudications that would
otherwise appear one-sidedly politicized (Harter 1982). For over a generation, such
structures and processes appeared to ground a new constitutional consensus and to
provide a framework for a stable legitimation of incrementally-rising expectations
(Lindblom 1966). The most recent years, however, have seen a sequence of forceful
political challenges to this system, resistance movements, delegitimation, and now
claims that earlier legalistic forms of constitutionalism can and must be restored (Lowi,
22
1979). In the context of legal discussion, issues are often formulated as problems of
"(hyper-)legalization," and countermeasures are presented as steps to de-regulate or
de-juridify, so as to restore individual autonomy (Tribe, 1979, Seibel, 1980, Mitnick,
1980, Wilson, 1980; cp. Friedman, 1985).
The legal dimension commands attention because much of the contemporary
debate about responses to the "crisis" of the welfare state turns on the precise
character of its legal and constitutional features and their consequences. When the
welfare state could be taken as established beyond fundamental questioning, several
influential writers argued that this development should be legally confirmed by giving the
most secure legal recognition possible to the new "social rights" (Marshall, 1949: 1965;
Reich, 1964; Glendon, 1981) that the political settlements of the welfare state had been
thought to give social standing equivalent to constitutional rights. As the factual
premises of these arguments are undermined by current shifts in policy, supporters of
institutionalized welfare guarantees decry the abandonment of essential experiments in
social justice, rational planning of social development, and democratization, while
conceding that there has been something seriously wrong with the constitutional and
legal order of established welfare states, and that changes can therefore not be avoided
(Voigt 1980; Voigt, 1986; Mishra, 1984). Many proponents of the welfare state, in short,
agree that the contemporary "crisis" is a symptom of substantial shortcomings in the
design and not merely a function of transitory swings in political opinion or unfavorable
economic conjunctures. They often acknowledge that the welfare state poses the
problem of the limits of law, and that the problem has broad constitutional ramifications,
but they will not accept an abandonment of the larger political aspirations (Görliz and
23
Voigt, 1985; Bernier and Lajoie, 1986).
Their opponents, as noted, have no such reservations. They charge that the
demands and procedures imposed on the legal system by welfare state developments
inevitably disrupt its capacity to function in a way consonant with constitutionalism
(Lowi, 1979; Lowi, 1985). For them the most recent developments substantiate
forty-year-old claims that the emerging pattern of state interventions would be
antithetical to the legal and constitutional systems presupposed by representative
democracy (Hayek, 1944). They accordingly welcome steps away from the welfare
state as movement towards restoration of "constitutionalism,” and they minimize their
social or political costs.
The primary objections to this position begin with the maldistribution of the
ensuing costs and benefits, especially since measures of "de-legalization" cannot but be
designed in a highly selective way. Almost fifty years ago, Karl Mannheim (1940;
Kettler, Meja, and Stehr, 1984) pointed out that the integration and steering of modern
societies has become dependent on highly complex and powerful social techniques.
Methods of organization, communication and direction have become available whose
operations profoundly disturb such mechanisms as the market and parliamentary
government, upon which the constitution of social order and the direction of public policy
had rested during the classical liberal era. Since these methods are concentrated in the
hands of powerful social actors, a measure of control over the uses of these techniques
appears indispensable to the maintenance of a public interest or commonwealth. There
must be adequate control over controls. And that means, of course, a measure of
control over the actors whose power these techniques so greatly enhance. Mannheim
24
imagined that "planning" provides a master technique that can coordinate and control all
these effects for the sake of a common purpose that it is also competent to define and
to legitimate. We have good reason not to share his faith in such a universal solvent
(Dunn, 1984). But the insufficiencies of the institutional responses projected two
generations ago or implemented in the interim do not detract from the soundness of his
basic social observation, reaffirmed repeatedly since.
While it is possible and indeed desirable to make shifts and changes among the
steering and allocation mechanisms deployed by governments, perhaps even quite
radical ones, it is impossible to suppose that all purposive attempts to orient, coordinate
and steer the enormous social powers generated by contemporary social technology
can be simply abandoned. Nor are the proponents of "de-legalization" seriously
proposing to do so. Public authority and power are to be realigned so as to make them
work in closer accord with institutions of social control different from the presently
influential neo-corporatist and public administrative ones, that are to be weakened.
That these alternative institutions, misleadingly apostrophized as "markets" or
"spontaneous social order" (Hayek, 1978-81; Loewe, 1935; cp. Schumpeter 1950; Coe
and Wilber, 1985) are more exclusively grounded in the social domain of the "economy"
and less susceptible to influences from the "polity," (to adopt Charles Lindblom's helpful
renewal (1977) of a still useful simplification) means that vital social interests without
weight in the calculus institutionalized in the economy's social technology will be
neglected.
For my present purposes, the interest at issue first of all is the interest in legality
itself, that may be aptly epitomized in the language of the American constitution, as a
25
social interest in "due process" (Selznick, 1969: 1980). The defense of legalism by
de-legalization results in the subjection of more people to more arbitrariness, quite apart
from questions of social justice. While present-day structures of legalization may fail to
provide adequately for this interest, the proposals for "de-legalization" would further
enhance the power of institutions whose commitments to due process are slight,
uncertain, and at present dependent on the operation of the larger regulations and
designs proposed to be dismantled. The measures supposed to reduce undue
pressures of law upon certain social actors are likely to subject others to arbitrary
powers. The characteristic combination of proposals for the "de-legalization" of some
social relationships with "neo-conservative" proposals for the strengthening of criminal
and moral policing suggests, moreover, that the changes proposed will not even lead to
a society less subject to coercive state control, but rather to a re-legalized society that is
increasingly dependent on punitive rather than on regulative law (Lukes and Scull,
1983).
The real contemporary debate is a debate about the direction that re-legalization
can take (Galanter, 1976; Voigt, 1980; Simitis, 1983; Willke, 1983; Teubner, 1983;
Teubner 1984), given the present spreading evasion and selective non-enforcement of
law, that must be taken as a sign of the welfare state's real problems. Is there a
possibility of solving present pressing difficulties in a way that will actualize the promise
of social rights that are made but too often frustrated by present legal designs, or must
reordering proceed by suppressing the expectations?
At one important level, both lines of argument concern the impact of the past
three generations on the legal and constitutional character of property, the central
26
contested concept in discussions of rights, rule of law, and constitutional order. Both
lines eventually move the discussion from the context of private to that of public law.
The issue is increasingly joined over the question whether the achieved complex of
regulative and constitutive law can be rendered legally viable and constitutionally
coherent or whether its scope and objectives are such that it cannot but render all
regulation and adjudication a matter of merely political "justice.” My primary purpose in
this paper is to provide a wider context for thinking about some recent legal thinking,
initiated in America but elaborated in Germany, that projects a strategic conception
initially formulated as a theory of legal evolution, and that claims to see the emergence
or promise of a new type of legalism and constitutionalism adequate to the welfare state
(Nonet and Selznick, 1978; Teubner, 1982; Teubner, 1983 cp. Blankenburg, 1983;
Rottleuthner, 1986). It is my contention that this tendency represents an attempt to
revive and to elaborate an undercurrent within social democratic thinking, latently
present underneath the stronger statist and regulation-centered socialist mainstream,
and historically more closely tied to the legal practice associated with the trade union
movement than to the ideological or theoretical activities oriented to political parties.
The analysis has three stages:
1) I shall begin with recent questions about property and the order of the
socially-minded state, and specifically with two inquiries into the possibilities of securing
that order by broadening the scope of that best-protected legal good to cover the
decisive claims and expectations comprising the "social rights" of contemporary
citizenship (Marshall 1949: 1965). The two legal studies selected for review, one Dutch
and the other American, converge in tracing the key problems to the structure of public
27
law, and thus in denying that the old predominant "civil right" of property can be adapted
so as to make it central to the structures distinguishing the contemporary welfare state.
The categories of private law can neither comprehend (in dogmatic legal analysis) nor
ground (in normative constitutional theory) the decisive relationships (Raiser
1971:1977). But the problem is that the predominant public law itself appears to be in
crisis, seemingly stretched beyond its technical and legitimating capacities by the
overload of judgments it is asked to order. The welfare state regime seems no longer
viable. The debate about property must be left behind.
2) Yet there is a theory of the public law, substantiated by reference to a key
dimension of its effective working, that purports to see an evolutionary way out of the
decisive difficulties that are commonly summarized under the heading of
"(hyper-)legalization" (Teubner, 1982; Teubner, 1984; Voigt, 1980; Voigt, 1983). The
key dimension of existing law that provides this theory a model and point of reference
proves to be collective labor law.
3) As an historical matter, however, this law owes its character as much to the
organized force of labor as it does to the facilitating framework established by public
law. (Simitis, 1983) Like other law that is "constitutional" in effect, it is intrinsically a
compound of power and legality. Because the welfare state as a whole can be
understood as being in important measure a complex of responses to the mobilization
and organization of labor (Pryor, 1968; Martin, 1986, p. 160; Hay, 1975; Piven and
Cloward, 1977; Offe 1972, 1980; Bureau, Lippel, Lamarche, 1986; Schmitter, 1977; cp.
Orloff and Skocpol, 1984), at present no less than in the past, that finding seems to
leave the proposed solution to the "crisis" paradoxically dependent on an agent
28
profoundly weakened by the problems that are now to be solved (Huxley, Kettler and
Struthers, 1986). Viewed more theoretically, the model of a new type of law appears
founded on analogy to a most uncertain case and therefore misleadingly incomplete
(Teubner, 1984; Kettler, 1986). But no conclusion in such general terms can be allowed
to dismiss so interesting a theory (Conference, 1983). The conclusion of my paper,
should serve as a troubling starting point for more detailed study of historical
experiences and present prospects. Its present purpose is less a refutation of the
"evolutionists'" thesis than a proposal about the historical and theoretical contexts within
which these theses can best be examined.
2. The Problem with New Property
In connection with the ongoing discussions about a new codification of civil law in
the Netherlands (Burgelijke Wetboek), F.W. Grosheide has recently reopened the
question of extending the legal concept of property to include claims to a variety of
powers and entitlements that do for those who claim them many of the things that
recognized property does for its possessors, and that similarly rest on stable
expectations reasonably aroused by long-continued public policy (Grosheide, 1982).
Grosheide weighs two fields of application. First, he cites claims that inhere in certain
legally recognized social positions and are essential to them, like the authority
pertaining to a given office (e.g., a professor's power over grades) or access to
indispensable information. Secondly, and more importantly, he considers claims
generated by established social policies and other public programs (e.g., welfare,
education, health-care, housing subsidy, etc.). In the modern welfare state, with its
29
massive transfers and uncertain finances, complex specialization and impenetrable
interdependencies, such interests appear as precarious as they are essential, since
they seem subject to quite arbitrary decisions by public and private bureaucracies.
Indeed, the emphasis on welfare policies in a narrow sense could be somewhat
misleading. Much of the planning, regulation, and public funding characteristic of the
contemporary welfare state have to do with designs for agriculture or industry or art, as
well as with regulatory public care for the social effects of non-public actions. The
problems turning on security of expectations, that are central to the historical rationale
for property, arise here as well. It might well be asked, accordingly, whether some or all
of the claims arising in these broader domains might also be construed as property
rights, if any expansion in the legal concept is undertaken. Such a question implies, of
course, that public and private agencies would have to overcome new kinds of juristic
obstacles (or at least entertain new kinds of juristic considerations) before making
changes in policy, even in accordance with parliamentary decisions regarding general
policy objectives or budgetary allocations, if those changes would prejudice claims that
have been transformed into vested property rights. Arising as an issue in technical
juristic inquiry for Grosheide, the possibility of redefining property quickly proves to have
wide ramifications for the theory and practice of contemporary politics.
The point of any such reinterpretation of property would be to place the claims
affected under the protection of the same legal mechanisms that protect proprietors
against arbitrary incursions. The idea of such a doctrine of "new property" was
originated by Charles Reich twenty years ago, in the United States (Reich, 1964), and
was actually cited in a few American decisions during the 'seventies. But it would mean
30
something quite different, of course, in a legal system like that of the Netherlands.
In the American context, the idea promised not only the superior legal defenses
available to property rights in all legal systems based on the common law (Samuel,
1983), but it also seemed to provide quite categorical constitutional protection for the
most basic of the interests at stake, in view of the provisions in the American
constitution denying to the federal government (5th Amendment) as well as to the
several state governments (14th Amendment) the power of depriving individuals of "life,
liberty or property" without "due process of law." The proposal gained influence among
advocates of expanded protection for social rights by a surprising tendency for the
courts, during the 'sixties and into the 'seventies, to return to the earlier constitutional
doctrine of "substantive due process." The courts appeared inclined once again, though
in an historically novel way, to interpret the constitutional guarantees to mean that some
acts are impermissible, even if duly authorized by legislation, if they are found to be
incompatible with substantive principles held to be inherent in the concept of "due
process.”
In the late nineteenth and early twentieth centuries, the doctrine of "substantive
due process" had served to deny governments the power to interfere with freedom of
contract. This freedom was taken as an absolute and as a decisive attribute of "liberty"
and "property" in the sense of the constitutional guarantees, and the constitutional
guarantee had been utilized to invalidate social legislation. When the Supreme Court
changed direction in 1937, in the so-called constitutional revolution that upheld the
constitutionality of a new generation of social legislation, the doctrine was abandoned.
But as revived a generation later, "substantive due process" appeared to promise a
31
defense of quite different social values, and even possibilities for new active judicial
initiatives on their behalf.
The leading case (Griswold v. Connecticut, 381 U.S. 479 (1965)) invalidated laws
against the sale of contraceptives on grounds that suggested a new right of privacy and
autonomy. The Court's broad reading of the concept of "state action," in related
contexts, to include actions by private parties that depend on public means for their
effects (e.g., the use of the legal sanctions of contract to support a design for racial
discrimination, as in "restrictive covenants") promised applications to situations where
powerful non-governmental actors interfere with protected rights (Cox, 1976). At the
extreme was the example of the Alabama judge who was administering all the state
mental hospitals in the jurisdiction and who was legally requiring the state government
to fund the improvements he was imposing. He grounded his actions on the argument
that this was the only remedy available to secure the constitutional rights of the patients,
including a "right to treatment" in view of their deprivation of liberty. (Wyatt v. Aderholt ,
503 F2d 1305 (5th Circ., 1974); Note, 1975; Special Project 1978). This action
suggested that "new property" might be judicially supported in an active way and not
merely defended against interferences deemed to be inherently arbitrary. Such
expectations have proved very exaggerated in the United States, in the light of the more
recent constitutional jurisprudence of the Supreme Court (Funston, 1977).
In a legal system like the Dutch, where the courts cannot invalidate procedurally
correct acts of state, hopes could not in any case take this form. Nevertheless, the
conception of "new property" is hardly pointless, because the legal status of property is
a strong one. The protection of property by such actions as damage suits against
32
"impermissible conduct" (onrechtmatige daad) in private law and by analogous actions
for compensation in public law do add up to a more secure and developed complex of
legal remedies than anything now available for the protection of "personal" entitlement
claims, the strongest legal status to which the claims sometimes proposed for
reclassification as "new property" can at present pretend. In one respect, indeed, the
legal import would be greater under Dutch law than under American, since there would
be a considerable strengthening of the claims against "horizontal" challenges, i.e., from
other private parties, that would only rarely be a factor in the American case. Under the
civil code, as in common law, property has long had a legal effectiveness denied all
other sources of rights or obligations. So, although the stakes are naturally very much
lower in the absence of the American legal ground in an activist constitutional
jurisprudence, the notion of "new property" is not without its appeals to some Dutch
jurists.
Nevertheless, Grosheide does not believe that it is either feasible or desirable to
assimilate the claims comprehended as "new property" to the old legal concept. The
substantive or functional legal criteria for property that have been developed by Dutch
courts are clearly not met. Moreover, he finds it hard to imagine alternative juristically
sound criteria that would be inclusive enough to cover the new claims and still fit into
anything like the old systematization interrelating the law of property with the law of
contracts, torts, and so on. If the move to "new property" does not work by extending to
the new claims the security and standing of the old, the strategy must be altogether
reconceived.
Grosheide's main point is that the old concept requires critical analysis and
33
de-absolutizing. Claiming superior social realism and legal subtlety for the doctrine of
property as a "bundle of powers," first articulated by Oliver Wendell Holmes, Grosheide
maintains that this concept, although originally at home in the common law, can be
adapted to Dutch requirements. He suggests that the multiple functions bundled
together in the old substantial property concept should be separately considered. Due
weight could then be given to the extent to which a number of these functions have
already been "socialized," in the sense of being put under the regulation and care of
public law -- as in labor law, for example. Such reanalysis would make it possible, on
the one hand, to identify the modes of property that should continue to be treated legally
in more or less the old way, and, on the other, to connect the other facets of property
expressly with their functional counterparts among the claims that some would want to
see reformulated as "new property," most of which arise under public law (cp. Raiser,
1971: 1977).
Grosheide maintains that this would enhance the legal standing of the newer
claims while opening the opaque old concept to juristic analysis and ethical assessment
(cp. Van den Bergh, 1983). He agrees with Reich about the need to show that the
justifications that underlie the privileged status of property in the old law now apply to
many claims generated in what had been deemed the domain of public law, and to
strengthen the legal positions of claimants dependent on the newly "socialized"
dimensions of property. Instead of attempting to broaden the scope of private law to
cover major constituents of civic status in the welfare state, however, he finds it
necessary to reconsider the division between private and public law, and to
acknowledge that the assumptions underlying their mutual isolation have been rendered
34
obsolete in important respects by modern developments. Writing in a legal context
premised on the welfare state, Grosheide demonstrates the impossibility of escaping
from the difficulties of public and constitutional law in such a state to the doctrines and
instrumentalities of private law.
This critique of the "new property" conception, as it was originally proposed,
converges with the argument of the American constitutional theorist, Jennifer Nedelsky
(Nedelsky, 1982, 1983). Not sharing Grosheide's need to break down an absolute
property concept in a codified system of private law, she rather points out that the "new
property" concept is in fact anachronistic, since American courts have long ceased to
regard property, except in the law of compensation, as a substantially unified legal
entity. The categorical protection it is sought to extend by bringing the newer claims
within the defenses supposed to safeguard property has actually come to lack a legal
object, since property in the sense of those defenses has virtually ceased to have any
legal existence (cp. Unger, 1983, 290). Regardless of the isolated returns to
"substantive due process," the legal developments that broke down the "freedom of
contract" as obstacle to wages-and-hours legislation fifty years ago also undermine the
possibility of depending on "right to welfare" as security against changes in public policy
that might be experienced as arbitrary disappointments of reasonable expectations.
The right of property hardly stands in the way of any regulation deemed reasonable by a
competent public authority, Nedelsky points out, and the law of property transactions
has been adapted to differentiate among the most diverse analytical units. Holmes'
conception of property as a bundle of powers, with its implication that different powers
merit different legal treatment, has been thoroughly established in the law.
35
Unlike Grosheide, who would welcome such a development for the Netherlands,
however, Nedelsky views this situation with some alarm. The difference in perspectives
has to do with differences in the theoretical frame of reference. While Grosheide is
interested in fairly specific questions about the relationship between the law of property
and a number of other important justiciable claims within the legal system (i.e.,
questions of legal dogmatics and legal policy) Nedelsky is preoccupied with
fundamental meta-juristic questions about constitutionalism and the respect for
individual autonomy. That brings her work expressly closer to the larger questions of
political thought that are only implicit in Grosheide's doctrinal analysis. Her perspective,
accordingly, cautions against overconfidence about the course of public legislation and
policy in welfare states under stress. She contends that if the American constitutional
design is to have any structural limitations at all, it requires the postulation of a domain
absolutely protected against exercises of public power, as she maintains was once the
case with property, The sweep of democratic legitimation provided elsewhere in that
design could not be restrained in any other way. A government understood as the
embodiment of the people's will cannot be brought otherwise to respect the autonomy of
individuals.
This is not to say that she imagines that either democracy or the absolutism of
property rights ever existed in actual fact as they were postulated in the American
authorizing myth. But the practice of the state, and especially the judicial practice of the
courts, could reasonably be understood as oriented to the legitimizing constitutional
beliefs. Moreover, she maintains, a measure of limitation was actually achieved, albeit
at cost to other social values. Now, she contends, the situation has drastically changed.
36
While the absolute concept of property retains its hold on the collective political
imagination of the people, perhaps because of its psychologically satisfying
concreteness of reference, the judicial dissolution of the legal concept increasingly
jeopardizes the integrity of the constitutional myth and consequently threatens
unrestricted democratically-sanctioned incursions upon individual autonomy, freely
taking what is now understood as having been freely given. Nedelsky is far from
thinking that the focus on private property ever provided a sufficient basis for a fully
adequate doctrine of individual autonomy, but she does insist that it was precisely this
inadequate myth that has made constitutionalism possible under the conditions of a
commercial society, and with it, such protection as there has been for the individual.
The doctrine of "new property," if it were more influential in the courts, could
actually increase the danger, she argues, since it would render the concept of private
property still more vague and still more distant from the experiential popular intuition of
property as something finite, concrete, and graspable in a literal way. Talk of protecting
"property" in that sense --especially since it is then likely also to extend to goods with
regard to which there are deep political divisions, like those at stake in the
decriminalization of abortion -- can discredit the whole concept. Yet she does not think
that restoration of the old property concept in law is either feasible or desirable. The
social interests invested in the newer welfare-state developments are too great. The
costs in social values that even a futile attempt to proceed in this direction would exact
are incalculable, since the reassertion of anything like the old property concept, with its
concomitant categorical "freedom of contract," would call into question, could it be
achieved, the very social claims that the proponents of "new property" mean to
37
strengthen. She calls instead for some functional equivalent to the absolute property
right, possessing comparable psychological plausibility, to give legal support to the
autonomy of the individual and to satisfy the requirement she deems integral to
constitutionalism, a secure reference point for tension between state power and
individual rights.
As she acknowledges, her position is paradoxical. Like Grosheide, she is glad
to see many of the social effects of the legal breakdown of the old property concept,
since it has meant some weakening of the frequently oppressive power of proprietors,
as well as the legal vindication of some public counter-forces against the frequently
destructive human consequences of domination by market processes. The interest that
originally brought her to her paradox, in fact, was inquiry into the extent to which change
in the law could bring about far more basic social change in a socialist direction. But
she is sufficiently impressed by the historical arguments advanced by Friedrich A.
Hayek and his followers, concerning the constitutional importance of the old property
doctrine, to inquire anew into the political kernel of truth that she considers to be
embedded in their fallacious legal theory.
Nedelsky and Grosheide do not meet at the same level of argument and thus
cannot be said to disagree. Nedelsky's analysis is expressly restricted to the American
constitutional experience, that has, in her judgment, given distinctive political
importance to property rights and that therefore implies the need for a functional
equivalent if property rights are recognized as having been in effect legally dismantled,
as they rightfully ought to be. She does not address herself to the relationship between
property rights and individual autonomy in other constitutional designs. Grosheide in
38
turn, given the juristic parameters of his argument, does not entertain questions about
the constitutional implications of changes in property doctrine. Nor would he be likely to
hit upon the broad sense of "constitutional implication" invited by the characteristic
functioning of American constitutional law as a pivot between technical issues in private
and public law and fundamental questions in the ideological and institutional politics of
constituting the republic, since modern Dutch legal thought does not typically link the
issues in this way.
Yet there is value in thinking about the two arguments together, quite apart from
their converging scepticism about "new property.” The juxtaposition suggests that the
sometimes quite technical uncertainty about the law of property is a sign of a deeper set
of internationally-shared concerns about the character of law and constitution in the
contemporary welfare state. Problems about the security of "social rights" (i.e., claims
upon collectivized goods, services. and responsibilities upon which individual existences
and vital social relationships are constructed), as well as their separation from claims
properly left to the play of political forces and environing conjunctures, open questions
about the whole system of legalized securities and the place of individual rights within it.
Grosheide's analysis serves as a reminder that the powers that have been legally
devolved from property by changed legal doctrine and regulative public law have been
subjected to new norms and relocated in other institutional forms. If there are now new
interests to be protected that are said to resemble these powers in important respects,
as the doctrine of "new property" points out, then we should scrutinize the protective
and empowering capabilities inherent in the new situation with care before despairingly
setting out in search of functional equivalents for absolute property rights. Grosheide
39
suggests that claims like those that are proposed for inclusion under the concept of
"new property" might better be assimilated to the appropriate location within this new
complex, once its character is made more evident. Complementarily, a prominent
Dutch public lawyer has stressed the importance of not treating the new practical
assurances and the new provisions for reciprocity and adjustment within the welfare
state complex as if they were merely administrative or political devices (Donner, 1979).
He insists on the need to specify their legal character, despite the strain they put on the
old categories of public and constitutional law. In a manner reminiscent of American
legal theorists early in the present century, he calls for a dynamic redefinition of the
constitutional limits of public law.
A contemporary Dutch illustration of the approach that Grosheide thinks can be
usefully comprehended within doctrinal legal analysis, instead of being taken as nothing
more than positive legal or administrative enactment or mere political fact, is the linkage
between the procedure for negotiating the annual framework for collective wage
agreements and the determination of levels and policies with regard to welfare
programs (van Peijpe, 1985). The former is a repository of deductions from property
rights achieved over several generations by judicial recognition of collective agreements
and by labor law; the latter is the result of fairly recent social legislation and ministerial
practice. Precisely because the powers and functions originating in property affect
important interests most directly and visibly, the connection established in practice
tends to take welfare benefits out of the unilateral and discretionary control of
bureaucratic or even parliamentary authority. By virtue of established arrangements,
the comparatively strong organizations oriented to the regulative process affecting wage
40
levels cannot disregard the process concerned with welfare levels. While it is
impossible to speak of guaranteed rights, in the sense associated with judicial process,
it is nevertheless equally implausible to speak of the structure of institutionalized
constraints as if it were a mere political conjuncture. Constitutional usages seem to be
emerging; a new regime appears to have been taking shape in this domain. And press
reports show that the parties on the defensive with regard to this design at the time of
writing clearly state their claim as a "constitutional" one -- as is also the case in
comparable controversies raging at the moment in France and Italy.
If the example is fairly chosen, it suggests that the development projected in
Grosheide's analysis may have its own constitutional consequences, even though its
legal meaning has not been thoroughly assimilated by the legal doctrine of the civil code
or public law. The powers abstracted from private property are not simply -- or at least
not necessarily --taken over by the existing and ordinary organs of "the state." In this
case, and in some others, at least, they involve a measure of "collegiality,” in Max
Weber's sense,1 with intermediate organizations and other institutional forms. These
in turn, as in the example, may importantly influence the exercise of other powers that
had belonged to government alone; and they may generate and protect new functions.
This is the development that has been widely studied from a different point of view as
the emergence of "neo-corporatism" (Schmitter and Lehmbruch, 1979; Berger, 1981;
Lehmbruch and Schmitter, 1982; Streek and Schmitter, 1985; cp. Mishra, 1984).
1
Weber omits a general definition of the concept, but he uses this heading to classify
a variety of special social relationships and groups that have the function of limiting
authority, with all varieties displaying mechanisms for reaching decisions by mutual
adjustment among actors with an important measure of autonomy. (Weber, 1978, pp.
271-282.)
41
It is not my present concern to inquire into the dynamics of such development or
the difficult questions it raises about parliamentary and other constituents of political
democracy. Nor am I about to engage in debate about the economic wisdom of the
policies generated by such structures. The question now is whether Nedelsky's reading
of the American "paradox of property" has overlooked comparable re-constitutive
trends, with their own deep roots in American political consciousness -- hidden
complexities within the general phenomenon that was characterized as "pluralism" in
the debates of the 'sixties and early 'seventies (Connolly, 1968). If so, such trends
would not solve the basic problem she raises, concerning the dangers to individual
autonomy. But attention would properly shift from the contemplation of paradoxes to an
assessment of strengths and weaknesses, trends and possibilities within an emergent
constitutional order that limits and channels state power by powers that are not
decisively dependent on either the law of property or its myth.
3. Welfare States as a Response to Labor Movements
The example derived from the linkage between Dutch industrial relations and
welfare policy was not randomly chosen, because the history of reflections on the
possibility of such constitutional evolution, in the United States as in western Europe,
largely coincides with attempts to think through the implications of the labor movements
that have so strongly influenced the public agenda during the past century. For more
than half of that century, much of that thinking had to do with fears or hopes of social
revolution. Financial or regulatory welfare state measures were promoted as
prophylactic devices by the one side and as strategic transitional stages by the other
42
(Preller, 1949; Adams, 1966). Then came several decades during which the large
questions appeared obsolete, but during which the institutionalization of welfare state
programs was widely accepted as the price for such a cooling of social threat and
conflict. In the past decade, then, in the debate about the presumed crisis of the
welfare state, there has been grave unease about the adjustments that were then
made. The compromises between "conservative" and "progressive" designs that were
embodied in the welfare state are everywhere threatened with a loss of legitimacy
(Habermas, 1973; Luhmann, 1981; Mishra, 1984).
Not coincidentally, the most recent period has also seen a weakening of
organized labor (Roberts, 1984; Panitch and Swartz, 1984; Wedderburn, Lewis and
Clark, 1983; Block and McLennan, 1985; Troy and Sheflin 1985). The unions
themselves have suffered from sustained unfavorable market conditions in their areas
of greatest concentration, from increasingly restrictive regulation, from effective
resistances to organization in the newer areas of employment growth, and from
declining memberships (Kochan, 1985; Lipset, 1986). Where social democratic parties
have not lost greatly in electoral strength, they have increasingly shifted their
orientations away from the symbols and designs that bound them to the labor
movement, as witness the political developments in France and Spain during the early
1980's. These trends have profound implications for the political prospects of the
welfare state. The reciprocal interdependencies between organized labor and the
complex of laws, policies, and institutions comprising the welfare state are
well-established, although the direction of causality with regard to new spending
programs is the subject of an interesting recent debate (Pryor, 1968; Orloff and Skocpol,
43
1984). If due regard is paid to the intricacies of actions and reactions, not to speak of
anticipatory and preemptive actions, there is little doubt that trade union movements
and the political parties close to them have been the major initiators and/or targets at
the initiation of the programs in question. And there is no doubt at all that they have
been decisive in the subsequent institutionalization of many of them.
At one level, the correlation between the strength of labor and the elaboration of
the welfare state seems easily accounted for. Both developments appear to be
dependent on the strength of social democratic or laborist political movements. High
levels of trade union membership and loyalty are then seen as an expression of the
same "class consciousness" that sustains parties with "revolutionary" or radically
reformist programs. The institutionalization of welfare state programs and the
"neo-corporatist" political arrangements that have sustained them has been recognized
as a direct or indirect result of the influence of those parties (Aaron, 1982; Schmitter and
Lehmbruch, 1983; Lipset, 1983). Political labor movements themselves did not
necessarily originate the eventually implemented designs for welfare, security, public
health, industrial democracy, environmental protection, social and regional equalization,
and economic planning that are variously comprehended by the term welfare state as it
used here. Much in these designs embodies resistance to labor's claims to political
power. There is something absurd about the debate concerning the "real" social and
political meaning of the welfare state, whether it represents a design for "social welfare"
or "social control.” The welfare state forms a contested complex of compromises and
arbitral resolutions, often initiated in fact by religious parties or secular social reformers
in and out of state office who were expressly aiming at a "third way" between
44
socialist-oriented organized labor and its opponents, and its "meanings" are perpetually
in contest (Trattner, 1983). In any case, the striking general feature in the political
formations under consideration remains the high correlation between the strength of
organized labor and the extent to which public agencies honor the claims and
expectations comprising the "social rights" of contemporary citizenship (Martin, 1986),
as these have been given a status plausibly construed as functionally equivalent to
constitutional guarantees (Marshall, 1949: 1965; Preuss, 1973; Preuss, 1983).
For the labor movement, as for many of the other state and non-state actors
involved in the formation and institutionalization of the welfare state, the concerns
around which all others revolve are naturally centered in the labor market (Offe, 1985).
The interrelationship between the actions of labor (or expectations concerning them)
and the welfare state, accordingly, is most evident in the domain of labor law. I maintain
that developments in this sphere are, first of all, influential in shaping the other aspects
of the welfare state, and, second, representative of constitutional patterns and
alternative possibilities for the design as a whole.
A striking indicator of the link between labor law and the broader changes under
discussion is the extent to which purposive, "sociological" approaches to law -- without
which the law of welfare states can hardly be imagined -- receive their paradigmatic
judicial formulations in labor law cases within legal systems as disparate as the
American and the German. If Holmes, Brandeis, and Frankfurter are taken as the
principal practical representatives of this tendency in the United States, the formative
importance of labor issues on their jurisprudence is evident from the record (Mason,
1956; Frankfurter, 1961; Hirsch, 1981; Irons, 1982). In the German case, the interplay
45
can conveniently be studied in connection with the "social" legal doctrine of "works
community" (Kettler, 1984; Simitis, 1957).
Especially important for reflections on the paradigmatic significance of labor law
are the developments in the sphere of collective labor law, the law of labor organization,
collective agreements, and collective actions. Because such developments commonly
reflect or react to actions (and litigation) by unions and are not limited to changes in
legislation, they also point to a line of connection between labor movements and the
legal constitution of the welfare state that is interestingly separate from the line through
political parties and parliaments (cp. Simitis, 1983). The standpoint of comparative
collective labor law helps to bring into focus the distinction between the predominant
social-democratic themes of welfare-oriented regulation by the democratic state and the
often latent themes of non-state collective interactions, sometimes characterized as the
"syndicalist" dimension of the labor movement. It was the composite (and not rarely
discordant) effects of both these elements that comprised labor's stimulus to and mode
of integration into the welfare state.
In the history of collective labor law, the main theme is the struggles of trade
union movements for some form of legal recognition (or acknowledgement) of their
characteristic modes and forms of social power. Of special interest here are the
contested legal ramifications of the recognition variously gained, the implications of the
diverse collective labor regime for the constitutional designs of the various welfare
states. Without denying that the initial designs of these regimes were often out of the
hands of the labor movements, that were in any case frequently divided among
themselves on key issues, I am especially interested here in the aims and
46
achievements of what German political analysis would call the "legal and constitutional
policy" (Martiny, 1976) of the trade union wings of a number of labor movements,
because certain common features in those achievements provide a model that bears on
problems more fundamental than those to which those policies were primarily
addressed.
During much of the history of organized labor, these policies have been under
attack from two sides. On the one hand, they have been taken as challenges to the
fundamental character of liberal law, somehow legitimating collective and coercive
challenges to property in some of its vital aspects and undermining the sovereignty of
parliaments and the legalism of the judicial process (von Mises, 1949). On the other,
they have been seen as betrayals of the political activism and larger social objectives of
the labor movement, accepting a conditionally sheltered but dependent position within a
social system whose principal direction will be determined by others (Erd, 1977; Klare
1978; Klare, 1982; Rogers, 1985; Tomlins, 1985; Panitch and Swartz 1985). The
former analysis is integral to the general legalistic critique of the welfare state, and I
have already given my reasons for putting that aside. The latter presupposes a range
of alternatives for labor and a measure of potential labor control over events that do not
accord with my reading of the situation (Simitis, 1983; Huxley, Kettler and Struthers,
1986).
In their political outlines, both lines of attack have changed remarkably little since
they were articulated, for example, in the Hearings of the American Commission on
Industrial Relations before the First World War. The characteristic defenses of the
policies, in turn, might be called "pragmatic,” in both the banal sense and in the more
47
complex and interesting one. A major new social reality was there to be
accommodated. Both policy and law had to be adapted in some suitable way. But the
divisions that that Commission uncovered within the workings of the pragmatists' major
accomplishment of the time, Brandeis' "Protocols of Peace" in the New York garment
industry, as well as the divisions manifested in the majority and minority reports of that
Commission, indicate a characteristic cleavage within the legal and constitutional policy
of labor. On the one side are some for whom accommodation and adaptation are a
matter of social pacification under state regulation. On the other, are others for whom
they are a matter of institutionalizing non-violent social conflict and change, within
structures that limit the role of state regulation (Adams, 1968; U.S. Commission on
Industrial Relations, 1916: 10453-10815). This distinction will prove relevant to our
assessment of contemporary legal-constitutional designs that model a law competent to
give the welfare state its proper constitution upon the collective self-regulation under law
achieved in industrial relations.
4. The Socialist Labor Law Project in Weimar: Collective Agreement and Cumulative
Social Change
Notwithstanding the reductionist theory of law proclaimed by the orthodox
socialist doctrine of the Second International (Engels/Kautsky 1892), there did exist
jurists who were attracted to organized social democracy in Germany. Since Lasalle
(1864:1919), they sought to specify and demystify the dramatic transformations
symbolized by the concept of revolution, relating these transformations strategically to
the systems of law and political constitution. Such juristic speculation interacted
48
reciprocally both with the practical juristic strategies governing the legislative work of
socialist parliamentarians and the legal work of labor organizations to project a
conception of legal restructuring that could comprehend the social rights that the
socialist-oriented labor movement demanded and the social power that this movement
deployed without resort to violence or dictatorship (Anon., 1890).
Curiously enough, in the light of recent "new property" discussions, Anton
Menger, the first important academic jurist in the German-speaking world sympathetic to
socialist ideas, proposed amendments to the draft of the German civil code (BGB) that
would have extended the protection accorded property to workers' capacity for work
(Arbeitskraft), so that, for example, an action against "impermissible conduct" could be
initiated where an employer fails to provide adequate safety or requires excessive labor
(Menger, 1890, 1903). Such adaptation of property concepts had already been
commonplace in the English labor movement during the Chartist period (Jones, 1983),
and it was repeatedly taken up later elsewhere as well, if only for tactical purposes
(Radbruch, 1930).
But the most profound Socialist juristic study of the time to deal with the legal
status of property emphasized the stability of the formal legal concept together with the
decisive change in its function brought about as economic relationships were
increasingly defined by legal institutions such as contract and corporation, technically
ancillary to property but effectively superceding it (Renner, 1905: 1949). This
de-centering of the property concept, together with the emphasis on alternate
institutions, including public law institutions, for the legal reconstitution of the
employment relationship, bears a certain resemblance to Grosheide's analysis. At the
49
beginning of the century, Karl Renner's conclusion was that the transfer of the primary
organizational and regulatory functions to these "complementary" institutions would
happen adaptively in the course of social development long before the actual abolition
of private property. The formal legal category of property, in his view, cannot be an
obstacle in the way of increasing practical acknowledgment of the social character of
production. The social functions of property would be socialized first.
Renner's ideas were adapted and refined in the German literature of labor law,
especially during the first ten years of the Weimar Republic. Hugo Sinzheimer, an
important labor lawyer who became a Social Democrat in the last years of World War I
and served as a leading Social Democratic contributor to the drafting of the Weimar
Constitution, developed a functionalist theory of the emerging collective labor law.
Ultimately, he projected this law as simultaneously the model and the dynamic source of
a fundamental change in the whole legal system, as well as in the effective constitution
of social life (Kahn-Freund 1976: 1981; Kettler 1984a).
According to Sinzheimer, the most important "complementary" institution,
capable of absorbing the organizing and directive functions that property had carried
out, is the collective agreement between employers and trade unions, an institution that
has social reality before it is given legal recognition and that embodies a dynamism and
flexibility that the legal code cannot provide (Sinzheimer 1927, Sinzheimer 1976).
Working at first only through doctrinal analysis and the promotion of legislation and later
also through his work on the constitution and on the various governmental commissions
charged with the design of the new labor law promised in the constitution, as well as his
performances as principal legal advisor to the (Socialist) Free Trade Unions, he sought
50
to secure a form of legalization for the collective agreement that would allow it to retain
the openness of a social invention created to meet experienced social need, while
retaining its connection to the dynamic and transformative social force that had created
it.
For Sinzheimer, the collective agreement is so significant, first, because it is a
spontaneous product of an authentic search for order between collectivities with
conflicting interests, a balancing of active social forces, and not simply a formal design
that must be imposed by the coercive powers of the state apparatus. The order and
balance presupposes the continued existence of the two major collective social actors in
the employment relationship, but the design is imposed by the newly organized working
class. The nature of this imposition, moreover, implies further re-orderings in the future,
with the initiative remaining with the workers (Kettler 1984). It is this implication that
vitally distinguishes Sinzheimer's mature views from the more static pragmatism with
that he was often perforce politically allied and with which his position is accordingly
often confused (Cp. Korsch, 1922: 1980; Fraenkel, 1958:1973; Kahn-Freund,
1976:1981).
Secondly, the collective agreement represents a response to fundamental
anomalies in the relationship between the buyers and sellers of work, the relationship
that, with Renner and the whole Marxist tradition, Sinzheimer considered decisive for
the order of a given society. Its emergence, he thought, signals and speeds the
growing social obsolescence of the individual contract of employment, which stands in
fact for the actual rightlessness of the worker.
The individual contract of employment is so profoundly misleading in industrial
51
organization, according to Sinzheimer, because it fails to acknowledge the dependence
that constrains the worker and the power to which it subjects him. As long as laborers
are isolated in mutual competition, as they are when labor is first made free, their total
dependence upon employment requires them to accept these legal fictions, or to
contest them only in unrealistic ways. But when they organize for collective action, they
achieve some corrections. Some of the first achievements, Sinzheimer thought, are
only indirectly their own. Fear of their growing power and a measure of humanitarian
concern lead to some legislation that directly or indirectly protects the labor power they
must employ, constantly risk, and in time exhaust, and that insures minimally against its
loss. In his view, however, the collective agreement that establishes norms for the terms
and conditions binding upon an entire sector of economic life is a far more significant
and revelatory accomplishment than such welfare regulations and compensations,
because it periodically gives temporary form to the balance between the power of
employers and the organized resistance of workers, and because it provides a
procedure for lessening the dependency of workers. The effect is to create an
expandable measure of power-sharing with regard to controls that had earlier been
considered inherent in proprietorship.
After the Revolution of 1918, Sinzheimer, active in support of the reformist wing
of Social Democracy and closely tied to the socialist-oriented Free Trade Unions,
elaborated his idea of the limitations that can be exercised by institutions of labor law
into a conception of progressive stages that would re-enact in the economic sphere
what had already taken place in the political sphere (Sinzheimer, 1923). First,
corresponding to the collective agreement and the legal arrangements needed to give it
52
full recognition, is the "constitutional order of labor.” Here, the entrepreneur's power
over the labor he hires is limited by certain rights that they are guaranteed and by some
collective participation with regard to conditions of employment and welfare.
Sinzheimer's examples include jointly managed social insurance schemes, the joint
work groups set up between the top levels of labor and industry in the last days of the
war, and the post-war works councils. Next was to come a "constitutional order of the
economy," where the common interests of all participants in the economy would find
ever clearer expression in institutions forming a common will, as in the post-war
co-management schemes in coal and potash and in the never-implemented
constitutional provision for a pyramid of consultative economic councils. This would be
marked by steadily increasing common control over production. Finally complete
democratization of economic relationships would follow, where the leadership functions
required by the rational organization of production would no be connected in any way
with property. The abolition of that right by legal enactment, marking the establishment
of mature socialism, would then be a solemn ceremonial formality.
Sinzheimer thought that this sequence was implicit in the core institution of the
collective agreement under conditions of political democracy, and that each successive
step, although it may require some legislative action, builds on the social integration and
shifts in power achieved at the step preceding. The "social provisions" of the second
part of the Weimar Constitution, themselves the result of compromise (Schmitt 1928;
Nipperdey1930), exemplify the principle of collective agreement even while codifying it.
Sinzheimer argued that they laid down the framework for social constitution, as well as
principles to guide judicial doctrine in the direction of the development he projected (cp.
53
Neumann 1930: 1981). The electoral and parliamentary institutions of political
democracy are presupposed at every stage, but Sinzheimer's analysis emphasizes the
fundamental transformation in the meaning of the political framework when its social
substance and legal instruments are changed by the course of social development (cp.
Simitis, 1983).
During the three or four comparatively prosperous years culminating in the Social
Democratic electoral victory in 1928, as the labor movement recovered from its grave
setbacks during the hyper-inflation, it did not appear unreasonable, though certainly
controversial, to assert with Karl Renner (1929) that the complex welfare institutions in
the course of being generated by labor were achieving a state of things recognizably on
the way towards an actualization of economic democracy, and to celebrate a new era of
social rights. At least, it made good sense for Sinzheimer and his effective younger
associates to build this reading of developments into labor's legal theory in the doctrinal
contests concerning key outstanding issues in collective labor law. But the
jurisprudence of the courts, including the new labor courts after 1927, for which
Sinzheimer had fought so hard, indicated that these legal theses were not to prevail
(Kahn-Freund, 1930: 1981). The devastating events following the onset of the Great
Depression showed that the neo-corporatist balance that had been struck was
profoundly unstable, dependent as it was on labor's uncertain access to certain parts of
the state bureaucracy and upon unreliable temporary alliances (Maier, 1975; Preller,
1949; Hartwich, 1967). Even the formal outlines of the design projected by Sinzheimer
disappeared with the National Socialist accession to power. Labor ceased to be an
independent force for more than twenty years, and all of the substantive achievements
54
of labor that were not destroyed were transmuted into privileges at the disposition of the
"leaders" of "works-communities," i.e., they became almost always a matter of
patronage by the proprietors. What had been conceived as the "constitutional" structure
of work- and welfare-relationships proved to be even more quickly vulnerable to the
stress of the Depression and to the hostility of its adversaries than the political
constitution of parliamentary democracy itself.
Sinzheimer acknowledged in 1933 (Sinzheimer, 1933) that his conception of
labor law could not withstand massive unemployment. The theoretical works he wrote
in exile nevertheless continued to speculate about democratization of economic
relationships as the transformative way towards a legal order congruent with the social
character of humankind (van Peijpe, 1984). His somewhat younger close collaborators
turned more sharply against the legal strategy they had shared with Sinzheimer.
Franz L. Neumann, for example, concluded in the aftermath of defeat, that the
labor movement had been credulous about law and the state and that the legal
development of the Weimar period had in fact seen an aggrandizement of arbitrary
power in bureaucracies and courts structurally tied to labor's social antagonists. The
legal doctrines associated with labor law (i.e., shifting from individual persons to
institutionalized collective legal personality and granting discretion to judges to make
decisions in accordance with very imprecise normative principles) he now analyzed as
indistinguishable from legal instruments of control generated by a monopoly capitalism
no longer served by the standards of legality appropriate to earlier phases. The period
of neo-corporatism between 1924 and 1928 appeared to him in retrospect as a scene of
unequal conflict between interest groups increasingly overshadowed by armed bands,
55
with organized socialist-oriented labor in fact more and more dependent on a less and
less legitimate state (Neumann, 1937, 1944, 1980; see also Kahn-Freund, (1979:1981)
"Postscript,"). Some such assessment, if not always with all the Marxist arguments
adduced by Neumann, predominates in the more recent literature on the Weimar labor
law experience (Martiny, 1979; Kaiser, 1980; Kaiser, 1981), where the distinctive
attempts associated with Sinzheimer are not altogether neglected. Even Thilo Ramm,
who first renewed interest in these writings, concluded that the practical failure of the
conception stemmed in important measure from inner defects (Ramm, 1966).
4. From Industrial Justice to Reflexive Law
Some recent German literature in legal theory has cast key institutions of labor
law in a role similar to that envisioned by Sinzheimer, as an instance and model of a
form of legalization that can provide an alternative to the forms now widely criticized as
hyperdeveloped and that can effectively safeguard social rights otherwise at risk (Voigt,
1980, 1983; Teubner, 1982; Ronge, 1980, Ronge, 1983). Most of these writers have
drawn direct inspiration from American rather than German sources. Gunther Teubner
has been the most innovative among them and, although his most recent formulations
depend increasingly on systems theory, he has also paid special attention to the
evolutionary design of Philip Selznick (Nonet and Selznick, 1975; cp. Teubner, 1983;
Teubner, 1984). In abandoning the rather shaky reformist Marxist framework that
characterized the older German work, Teubner and the others have brought out the
more general implications of the legal conception. At the same time, they have run the
risk of losing the awareness of power variables that the Social Democratic legacy
56
contains in its imagery of class struggle, however tamed and attenuated. This is not to
say that the American progressivist-pragmatic tradition, that provides the background
for American expansions upon the model of labor law, does not have its own version of
the classical Social-Democratic awareness of the interplay between questions of law
and might. However, the development of that tradition has tended to obscure this
awareness, especially where it has focused on the progressive evolution of collective
problem-solving mechanisms rather than on the critique of domination by "special
interests."
Selznick and Nonet distinguish three evolutionary "stages" or ideal-types, but
indicate that the "evolution" in question is intended as a heuristic model rather than as a
theory of natural development. The first stage, called "repressive," finds law passively
and opportunistically in the service of predominant social and political forces, acting
above all as a means of coercion. In the second stage, "autonomous" law, the legal
system approximates to Max Weber's conception of formally rational law. To establish
and preserve institutional integrity, Nonet and Selznick claim, law "insulates itself,
narrows its responsibilities, and accepts a blind formalism as the price of integrity" (p.
77). At the third stage, then, to the extent that it can actually be attained, law once
again responds to the social environment, as in the first stage, but now it is geared to
meet Roscoe Pound's demand that law be "responsive to social need.” It is much more
likely to be engaged in regulation than in adjudication, and it has the cognitive capacity
to comprehend social pressure as "sources of knowledge," while facilitating the
achievement of common purposes. Although Selznick describes the stages in that
evolution in quite general, sometimes hortatory terms, the work clearly rests on Selznick
57
and Nonet's impressions of the socially constructive administrative programs that they
have studied over the years (Selznick, 1949; Selznick, 1969).
The first dimension in "responsive law" involves a conception of substantive
justice. It is linked theoretically to legal philosophers who place principle above rules in
law. Since the philosophical argument itself is slight, however, it seems more firmly
grounded in Selznick's conviction that the major social programs since the American
New Deal have been responsive to real problems and that the practice of an important
subset among administrators and judges can be seen as effectively dedicated to "the
progressive reduction of arbitrariness in positive law and its administration." In this
connection, Selznick expressly challenges the most fundamental categories of formal
law. "In the context of responsive law, "he writes, "claims of right are understood as
opportunities for uncovering disorder or malfunction, and hence may be valued as
administrative resources. But the resolution of controversies cannot remain the
paradigmatic concern." This, he asserts, "is to demand a system of law that is capable
of reaching beyond formal regularity and procedural fairness to substantive justice" (p.
108). With this, the whole conception becomes very uncertain, or at least dependent on
a strong political consensus, and the pragmatist-progressivist provenance of Selznick's
ideas becomes evident.
But the striking thing about the conceptions of substantive moral and political
knowledge developed in this intellectual tradition is the rich elaboration of its concept of
problem-solving intelligence into procedures or methodologies for decision- making, that
are in turn oper in distinctive patterns of organization. For John Dewey (1927) this
reasoning generates a radical theory of populist democracy; for Charles Lindblom, a
58
"post-ideological" theory of "partisan mutual adjustment" (1965; cp. Kettler, 1967,
Kettler, 1969). As in these cases, Selznick's undertheorized account of methods for
adequate social self-management proves to be analytically separable from the
philosophical characterization of outcomes as substantively rational.
In his adaptation of Selznick's ideas, Teubner accordingly distinguishes between
the notions of a law governed by substantive justice contained in Nonet and Selznick's
stage of "responsive law" and an implicit second dimension, where the distinctiveness
of "responsive" law derives from its structure and its inner connection with
problem-generating and problem-engaging organized social actors. Teubner calls this
"reflexive" law and characterizes it as law that puts in place autonomous and
self-legitimating "constitutions" for diverse domains, each having its own distinctive
principles and appropriate mechanisms, with the overall legal framework providing for
mutual respect among the spheres. This law, he maintains, is essentially a law of
organization. It is self-limiting because it addresses itself to mechanisms and processes
of subsystem conflict-resolution, rather than imposing solutions. His primary case in
point is labor law, understood in a way more directly reminiscent of Selznick's earlier
work on "industrial justice" (Selznick, 1967) than of the Weimar Socialist formulations,
with their Marxist points of reference.
Selznick had argued, first, that contemporary trends in economic organization
themselves already incline towards internal legality, institutionalizing a system of rules
and reasonableness that is progressively removed from arbitrariness and open to
corrective contestation. The "social foundations of industrial justice," he maintains, are
already present in a tendency towards rules and reasonableness inherent in modern
59
organization, as it advances beyond the simplicities of bureaucratic hierarchy.
Nevertheless, he finds, despite the "human relations" movement in personnel
administration that he prizes, that this system is still too much inclined to instrumentalize
participants. Decisively reorienting this incipient rationality in economic organization and
giving it a human face, Selznick contends, implies the transformation of the employment
relationship.
In a distinction analogous to Sinzheimer's, he contrasts the "prerogative" contract
that subordinates the individual employee to the command of his employer with the
collective "constitutive" contract. The latter, he maintains, is not a contract in the older
legal sense at all, but the establishment of a scheme of internal governance on the
basis of negotiations between parties whose interests conflict at least in important part,
and that are equipped with some autonomous power resources through their
organization and capacities for collective action. The collective agreement, then,
reorients the organization of economic activity so as to provide autonomy and due
process in this domain at least, subject to constraint by regulative principles
democratically established by public authority.
The major jurisprudential issue, he finds, concerns the theory of association.
Selznick argues above all against attempts to construe corporate organization with the
help of the individualist contract theory of common law. He welcomes instead the turn
towards a new institutionalism, with status as a source of rights (cp. Simitis, 1956,
Kettler, 1984). Within the state's legal system, the constitutive contracts provide a
reference point for comprehensive public policy, so that disputes arising under such
contracts that go beyond the internal arbitration system will be resolved by courts taking
60
guidance from relevant statutes and not from the common law of contracts. They
provide a framework, moreover, to sustain due process, a framework that can be
judicially monitored to assure minimum standards. The presence of lawyers in the
negotiations and arbitrations involved in constitutive contracts, Selznick contends, will
make available the analytical habits and concepts of the common law. However the
constitutive and political character of the deliberations will prevent the abandonment of
substance for form. He finds here a pattern of legalization, in short, that brings the
central value of legality, its negation of arbitrariness, into social relationships especially
subject to abuses of power, without subjecting them to formalized, largely retrospective
and unreasonably uniform standards or procedures, and without adding unmanageably
more functions and uncontrollably more power to the central institutions of the state.
Selznick thinks that this adaptability and flexibility provides as much assurance of
intelligent collective judgment as can be secured.
Selznick does not claim that this complex and contradictory process, as it has
been institutionalized in the practice of business organization and labor law, already
adds up to industrial justice or to the accomplishment of the principled public purposes
often merely enshrined as ineffective ideals in symbolic legislation. But he thinks that it
might be legally nudged closer to due process. In a parallel to some of Sinzheimer's
larger hopes, he thinks that the principle of contestation intrinsic to due process may
generate real democratic participation and in time bring the association to "polity" in
Aristotle's sense, as an uncoerced association for the good life. This is the vision, it
seems, that captured the imagination of Teubner and other contemporary
commentators looking for ways of re-legalization able to move beyond present grave
61
difficulties in the law without abandoning great masses of people to the arbitrary social
powers that were in some measure controlled and compensated for by the regulations
of the welfare state (cp. Luhmann, 1985).
5. Functionalism and the Politics of Constitution
Whatever the doctrinal merits of Sinzheimer's and Selznick's analyses of the
collective labor law (cp., e.g., Kaskel, 1922, Kaskel, 1932; Cox ,1960: 1983; Simitis,
1983), it is by no means obvious, first, that the model can be applied to different issue
domains, and, second, that the experience can be abstracted from the historical and
political contexts to which it belongs. Both questions come back to the forms, purposes,
and powers of the labor movement. Comparative historical study seems to suggest that
the effectiveness of the autonomous labor organizations depends heavily on their
success in gaining the support of political authorities. Sinzheimer concluded in 1929,
for example, that the Weimar system of compulsory arbitration at the discretion of the
Minister of Labor was essential to the regime of collective agreements, even though it
made the social actors more dependent on the state than his initial theory of the
collective agreement would have allowed (Sinzheimer, 1929, Hartwich, 1967). Franz
Neumann was not alone in his conviction that such dependency, either in the Weimar
period or in more recent history, disables the labor movement from pursuing precisely
the lines of development that Sinzheimer projects (cp. Erd, 1979). Similar arguments
have been made with regard to constraints imposed on the American labor movement
in return for the support it receives from the National Labor Relations Board (Klare,
1982). The question, however, is not only whether such linkage between movement
62
and state represents a threat to the integrity of the movement; the question is also what
happens when the state's agencies break the link or turn against the regime to which
the movement has been central. Then the prospects for the "evolution" that Selznick
projects appear dim indeed.
In his recent elaborations of the argument on behalf of "reflexive law," Teubner
(1984 and 1986; Teubner and Willke, 1984) has conceded the limited applicability of the
collective labor law example and has subsumed this case under a much wider class of
procedural or constitutive legislation designed to steer the "self-steering" mechanisms of
social subsystems by legitimating and reforming their internal organizations. One of his
major interests, in fact, has been the restructuring of organizations so as to revise their
internal "logics" (the norms, priorities, and cognitive methods according to which they
act). Most recently, he has addressed himself to the reform of corporate law so as to
bring about internal weighing of considerations relating to social interests not ordinarily
comprehended within corporate rationality (Teubner 1984a), a legally sanctioned
institutionalization of "corporate social responsibility." Without presuming to dismiss the
interesting analyses that Teubner presents and develops in his recent work, it is
nevertheless fair to note that this direction removes him further from an understanding
of the political dimension in constitution and reconstitution.
His "subsystems" now have "reproductive mechanisms" that hardly accord with
the realities of powers and resistances that empirical research uncovers. They possess
"rationalities" that leave little room for intra-systemic ideological divisions (cp. Jörges,
1983, Münch, 1985, Kettler 1986). In his earliest formulations, Sinzheimer too was
fascinated by theories of "organization" and "function" that promised to supercede
63
political conflict. However it was precisely his recognition of the power dimension in the
ordering of social relations that marked his turn to the social democratic movement and
his commitment to increase the power of labor organizations. This is not to be confused
with a reductionist treatment of law as simply equivalent to power in other modes. The
distinctive achievement of social democratic legal thought from Renner through
Sinzheimer, Fraenkel, and Neumann was precisely their work on a political-social theory
of the legalistic mode and its development in a state thought to be inclining towards
social democracy.
Teubner counts on the power of the political system to provide the sanctions
required for use of reflexive law to reconstitute autonomous, self-regulating social
subsystems in the public interest. But that begs too many questions about the structural
determinants of state action. American labor policy has allowed the constituted
collective labor regime to be marginalized (Huxley, Kettler and Struthers 1986).
Similarly, recent British legislation in the field of collective labor law might be thought to
exemplify perfectly Teubner's conception of "reflexive law," since it concerns itself
exclusively with procedural requirements for organization and collective action. Yet the
design and effect have been to lessen subsystem autonomy drastically and to introduce
massive, punitive, and largely arbitrary judicial regulation where non-state interaction
processes had prevailed (Wedderburn, Lewis and Clark, 1983; Davies and Freedland:
Kahn-Freud, 1983). Some might argue that the new "logic" is more in the "public
interest" than the old, but the argument would be a political one, subject to political
rejoinder (Simitis, 1983). In the meantime, there are signs that this legal remedy
seriously threatens primary social actors in the older constitutional design.
64
A counter-example does not refute a complex argument, but it may call attention
to a vital missing dimension. Teubner's theory cannot be satisfactorily developed within
the unpolitical framework of abstract functionalist theory; it requires the context of an
adequate political theory of constitution. Social democratic political thought can hardly
claim that distinction, but it is at least open to the central issues. That is why the
recollection of its dual legacy is offered as a constructive contribution to the
contemporary debate.
But the study has barely begun. The major purpose of this introduction to the
inquiry has been to indicate the inner connections between past achievements in the
reconstitution of labor relations and the conception of an evolutionary alternative to
"de-legalization" schemes for the welfare state. The second point was to identify the
difficulties raised for this alternative approach by the historical record of political
preconditions for the effectiveness of the "new labor law." There are excellent reasons
for wanting to pursue the ways of re-legalization derived from Sinzheimer and Selznick,
but appearances are powerfully against them. Such a recognition has classically been
the starting point for careful reconsideration of the facts.
65
Works Community and Workers' Organizations: A Central Problem in Weimar Labour
Law*
1. The Problem of Institutionalism: Is Labor’s Legal Theory Self-Destructive?
In the analyses of the juristic symptoms of fascism that Franz L. Neumann wrote
in exile, he includes his former close associate, the prominent Social Democratic labour
lawyer, Hugo Sinzheimer, among the proponents of the "institutionalism" that supplied
fascist jurisprudence with rationales for the destruction of free trade unions.
"Institutionalism," as Neumann presents it, constructs a legal model in which the
individual persons, whose wills constitute the primary legal relationships in liberal legal
systems, are replaced by members of constituted communities, whose legal claims and
duties somehow derive from the objective character of those communities (1937). 1
Contract gives way to status. Free legal subjectivity is displaced by the objective
legalities supposed to inhere in organic community and fellowship. One fiction gives
way to another. But they are not equally good. The latter does away with legal claims
to equality before the laws, Neumann maintains, and the visibility (even if only in
*
" Economy and Society 13:3 (August, 1984) 278-3032. Based on a lecture
presented at the commemoration of the 50th anniversary of Hugo Sinzheimer's
inauguration as Extraordinary Professor of Legal Sociology at the University of
Amsterdam. Agnietenkapel, 7 November 1983. The research of which this is a first
product, on "Labor and the Law in Germany and the United States, 1912-1937" is
indebted to the Netherlands Institute for Advanced Study in the Social Sciences and
Humanities, Bard College Center, Trent University Research Committee, and the Social
Sciences and Humanities Research Council of Canada.
1
"Rights and duties are no longer to be connected to the wills of legal persons equal
before the law but rather to objective facts." (1937, p. 590)
66
disguised form) of the powers of property. The critique of liberal legalism eventuates in
the justification of powerful new techniques of repression.
According to Neumann, the legal conceptions that he calls "institutionalist" were
most strikingly deployed during the Weimar years in the labor law, where the
relationship between workers and entrepreneurs was characterized in the works-council
legislation (Betriebsrätegesetz) and construed in numerous cases as association in a
works-community (Betriebsgemeinschaft) having a common works-objective
(Betriebszweck) that imposed privileges and obligations on the participants. Neumann
points out that this conception ignores the fundamental social divisions between labor
and capital and provides a central ideological theme for the National Socialist legislation
on the organization of national work, establishing the "Führer"-principle in all enterprises
and reducing workers to the status of dutiful vassals. Paradoxically and tragically, he
maintains, all reformist socialist and trade-union-oriented legal thinkers incline towards
"institutionalism," without of course meaning to help bring about their own liquidation.
Neumann contends in these writings of the mid-30's that when Hugo Sinzheimer
adapted ideas from his teacher, Otto Gierke, in order to justify the claim that collective
labor agreements (Tarifverträge) are a social source of law superior to the individual
contracts of employment of the German civil code (Sinzheimer 1907/8; 1916; 1976, 1/
pp. 35-69, 402-422, 2/ pp. 3-41), he laid the theoretical basis for institutionalism and
prepared an influential support for the legitimacy of such ideas in the labor movement
(Neumann 1944, pp. 440-458; 1980, pp. 260-280, pp. 298-313).
Neumann is doubtless right in his assessment of the important place that the
67
legal fiction of the works-community assumed in National Socialist labor law and in the
connection between the "institutionalist" legal doctrine that sustained that fiction and
themes pervading Weimar labor law2. A younger contemporary of his, Otto
Kahn-Freund, had already pointed out in 1932 the affinities between fascist ideology
and the doctrine implicit in the decisions of the Weimar labor courts, and he had also
voiced his misgivings about the effects of Sinzheimer's recourse to notions of "social
law" and the consequent determination of legal claims and obligations by the functional
requirements of institutionalized collectivities (1981). And on the ceremonial occasion
marking the incorporation of the German legal profession into the National Socialist
Association of Jurists in the fall of 1933, the long-time president of the highest labor
court proudly told Hitler's justice-commissioner that the labor court, with its doctrine of
the works-community, had led the judicial system in pursuing the objectives now so
brilliantly embodied in the great National Awakening, under the banner of the Führer
(Wrobel 1982, p. 342).3 But Justice Oegg, speaking a month before Sinzheimer took up
2
Paragraph 1 of the Works-Councils Law of 4 February 1920 states as one of the two
basic objectives of the Works-Councils: fulfilling the works-objectives. Paragraph 1 of
the 1934 Law for the Ordering of National Work provides: "The entrepreneur, as leader
of the works, and the employees and workers, as his following, work together in the
works for the advancement of the works-objectives and for the common service of
people and state." W. Mansfeld/W. Pohl, 1934.
3
See also the editorial on 1. Mai 1933 in the journal of the labor court association ,
Das Arbeitsgericht: "A new day has broken for Germany, stirring the German people to
its deepest depths. Great joy possesses German labor-court judges, professional
judges and lay judges upon this occasion. That for which we strove and longed now
has prospects for quick realization. The fateful chasm between the givers and takers of
work is to be closed. German workers are to be led back to social peace, the German
worker is to be taken up as fully enfranchised member in the community of the people
and in the state. And thus we have come substantially closer to the highest aim of
German labor law and the high purpose of the labor court association, to solidify the
bands among law, economy, and the people's life, to bring about the feeling among the
68
in exile an academic post with little prestige or influence, did not cite Hugo Sinzheimer
as an inspiration. And this was not only because Sinzheimer was already an outcast,
as a Socialist and a Jew.
Sinzheimer was a founder of the Association of Republican Justices and Editor of
its journal, Die Justiz, a stubbornly dissenting voice, detested by the conservative legal
profession (1968). Sinzheimer had, moreover, forcefully objected to the doctrine of the
works-community since the time of its first enunciation by the German High Court
(Reichsgericht) in 1923. A major objective of his book on the fundamental principles of
labor law is to show the profound difference between his conception of such law, that he
presents as a social and collectivistic advance on the obsolete individualism of the
German civil code, and the ideological distortions of this basic idea (1927). If
Sinzheimer's conception of the law can be said to have been "institutionalist" at all, it
was so in a sense very different from that of the courts; it presupposed the organized
different levels of the people that they belong together and thus the unity of the German
people." 38 Jg., Nr. 5. More startling, perhaps, is the enthusiasm voiced a year later by
one of the most brilliant of the Weimar civil and labor jurists in his commentary on "Das
Gesetz zur Ordnung der nationalen Arbeit." Justus Wilhelm Hedemann, whose warning
against the "threat to law and state" posed by the abandonment of rigorous legal norms
in favor of general clauses had just appeared in early 1933, now concludes: "There are
no more hate-filled partisans stubbornly struggling for every penny, but only the will to
'order,' order in the works as in the wage scale. A firm band of law is to forge together
all those associated with an enterprise, even with regard to the hardest questions.
Belonging together is not merely one of the values of the new German labor law; it is its
basic value. This distinguishes the new German labor law from the partially related
Italian one. Because Mussolini's Carta del Lavoro is still deliberately and emphatically
built upon the existence of the two formed groups, givers and takers of work, but this is
no longer the case in Adolf Hitler's national labor statute." 39 Deutsche Juristen-Zeitung
3 (1. February 1934) Cp. Hedemann 1933, esp. pp. 16-18. But Hedemann, despite his
occasional misgivings, had already welcomed the legal doctrine of "works-community"
in earlier works: see, for example, "Betriebsgemeinschaft als Rechtsproblem," in
Potthoff 1925, pp. 17-36. A footnote indicates, by the way, that the notorious Roland
Freisler wrote his dissertation in support of this doctrine.
69
labor resistance that the Weimar courts sought to hamper and that their successor
tribunals, often with the same membership, brutally repressed.
The question before us is by no means, absurdly, whether Sinzheimer was in
any sense politically allied with National Socialism; it is whether Neumann is mistaken in
his contention that Sinzheimer's conception of the law and his legal strategy are to be
understood as nothing more than a preliminary and yet contributory symptom of the
crisis in liberal law and capitalist society that was most malignantly expressed, in
Neumann’s judgment, by National Socialism. Did Sinzheimer have a legal theory
distinguishable from proto-fascist "institutionalism" in more than political intention? Do
his theory and, more generally, his approach to the law deserve a more discriminating
and more favorable assessment ?
These questions have more than historical interest. Contemporary debates
about "legalization" (Verrechtlichung) of the labor movement, especially in Germany,
England, and the United States, take up the issues not far from where Neumann left
them almost fifty years ago. When, for example, Rainer Erd in Germany (1977, 1979,
1983; cp. Moritz 1980 and Ronge 1983) or Karl Klare in the United States (1978, 1982)
claim that the practical legal doctrine of the labor movement undermines that
movement's capacities for promoting the interests of the working class, let alone serving
as a force for progressive social change, their analyses, rich as they are in detailed
treatment of recent events and legal judgements, follow along the lines that Neumann
took up in the mid-thirties.4 And when Gunther Teubner (1982) or Rüdiger Voigt (1980,
4
The belated and limited post-war reception of these Weimar labor law discussions
was initiated by Thilo Ramm, with a source book (1966). See also his authoritative
70
1983), in contrast, explore the possibilities of a "reflexive jurisprudence" to provide for
multiple self-governing constitutions within the framework provided by a democratic
state, in place of the opaque administrative arbitrage found ever more oppressive and
ineffective by critics of all political persuasions, their thinking is reminiscent of
Sinzheimer --and susceptible to the criticism of being "institutionalist.”
It is the objective of the present historical study to show that Sinzheimer’s
strategy is properly understood only when his legal analysis of labor law is viewed
together with his political assessment of the labor movement. The interdependence
between the two dimensions is not reducible to the terms of analysis at home in either
domain; there is a complementarity between the legal and political theories. As a
practical jurist, Sinzheimer does not address the reflexive meta-theoretical problem of
review of the record, a number of years later, "Die Arbeitsverfassung der Weimarer
Republik," in Franz Gamillscheg, et al., In Memoriam Sir Otto Kahn- Freund (Munich,
1980). A major source is Fraenkel (1973), representing original contributions to the
Weimar discussions, written as a student and then colleague of Sinzheimer and his
successor as chronicler in Die Justiz, as well as subsequent re- interpretations of the
experience. For an influential if brief early utilization, see Hartwich 1967, pp. 14f.
Forthcoming in a Sonderband of Ius commune is a valuable contribution by a
distinguished living scholar, who was Sinzheimer's last assistant in Frankfurt: Franz
Mestitz, "Zur Wirkungsgeschichte des Arbeitsrechts." Contrasting and illustrative recent
interpretations of the story are Andreas Kaiser, "Kollektives Arbeitsrecht und
gewerkschaftlicher Funktionsverlust in der Weimarer Republik," Demokratie und Recht,
8. Jg., Heft 4, 1980, 444-451, and Henryk Skrzypczak, "Zur Strategie der Freien
Gewerkschaften in der Weimarer Republik," in Heinz Oskar Vetter, ed., Vom
Sozialistengesetz zur Mitbestimmung, Cologne, 1975, pp. 201 ff. An outstanding
specialist on Kahn-Freund, Neumann, et al. is Wolfgang Luthardt. See, for example,
"Kontinuität und Wandel in der Theorie Franz L. Neumanns," Internationale
wissenschaftliche Korrespondenz zur Geschichte der deutschen Arbeiterbewegung,
(September, 1983) 329-373. There are usefully contrasting viewpoints in two papers in
Zeitschrift für Rechtssoziologie 1/81, indicating the present state of the German debate:
contributions by Michael Kittner/Axel Breinlinger and by Wolfgang Däubler. The
corresponding American debate, much cruder, is in 4 National Labor Relations Law
Journal 450 (1981)
71
such an intellectual composite, but the record of his practice on the issue of the workscommunity poses the question in a productive way.
2. The Doctrine of Works-Community in Weimar Labor Law
The German courts during the Weimar years employed the concept of
"works-community" most notably in decisions relating to the payment of wages during
temporary closures of enterprises. The German Civil Code (BGB) provides for an
exception to the rules normally governing reciprocal contracts (gegenseitiger Vertrag)
when those contracts are contracts of employment. While a failure to perform the
contracted services that is due to factors making the employee unable to perform will
normally simply excuse the performance (323), an inability on the part of the employer
to utilize the services (Annahmeverzug) renders him liable for the payment of wages,
without requiring the employee to make up the omitted performance (615).
In the new period of labor activism after the First World War, the courts
confronted a series of cases in which they were asked to decide whether clause 323 or
615 applies where the performance is rendered impossible by the effects of labor
conflicts in which the claimant for wages is not directly involved. In a series of
decisions, beginning with a judgment of the highest court (Reichsgericht) and continuing
through decisions of the labor court (Reichsarbeitsgericht), after its establishment in
1927, the German courts came to hold that the issues should not be decided by
technical legalistic explication of the two clauses but by reference to the sweeping
general code provisions concerning "good faith" (Treu und Glauben, 242). The decision
of the highest labor court doctrinally culminating this line of development said, "The
72
individualistic point of view that was determinative of employment relationships at the
enactment of the German Civil Code cannot claim today the significance that it had at
that time, because the idea of a social labor-and works-community has in the meantime
been recognized and established in legislation as well as in juristic science."
(Reichsarbeitsgericht decision of June 20, 1928)
The initial case in the sequence involved non-striking trolley car employees
whose workplace was shut down by a strike in the company's power plant. Unlike later
cases, when the courts will use sweeping general clauses, the court still attempted in
this case to cast its decision in the form of an interpretation of the clauses on inability to
perform, but the reasoning depended on the notion of a works community. All of the
contracts of employment are held to be grounded upon the collaborative effort of all
members of the works community; when this necessary precondition is not met, the
contracts are to be taken as unperformable by reason of the kind of inescapable
circumstance that the German Civil Code subsumes under its paragraph 323, and the
employers is to be excused from performance.5
5
Decision of the Reichsgericht, 6 February 1923, Reichsgerichts Zeitung 106, 272.
The general clause concerning "good faith" is thus used as an auxiliary to the
construction of 323 BGB. It may be of some relevance that the same court in that year
culminated a series of cases in which it used this doctrine of underlying commercial
precondition (geschäftliche Grundlage) by actually revaluating a contract whose face
value had been rendered meaningless by the German mega-inflation, in disregard of
legal tender legislation and universally accepted doctrine (Decision of November 28,
1923), and that its members in effect threatened to rule in disregard of the legislation
that was enacted in 1925 in order to set limits to such revaluation. The doctrinal history
we are considering cannot be separated, as will become clear, from questions about the
forms and limits of judicial authority. The influential decision in this area by the
Reichsarbeitsgericht was the decision of 20 June 1928, Bensheimer Sammlung, vol. 3,
No. 35, p. 116. For discussion of the cases, and a complete list of related cases up to
July 2, 1930, see Otto Kahn-Freund, "The Social Ideal of the Reich Labor Court," in
73
Kahn-Freund 1981, pp. 126 f. and footnote 42 on p. 158. Later cases can be located
with the help of the index in the annual compilation of supplements to Das Arbeitsrecht:
Rechtsprechung des Arbeitsgerichts. For the "prevailing doctrine (herrschende Lehre),"
past and present, see, for example, Alfred Hück and H.C. Nipperdey, Lehrbuch des
Arbeitsrechts (Mannheim, 1928), pp. 194-201; same (1970), pp. 81-84. Justus Wilhelm
Hedemann, Schuldrecht des Bürgerlichen Gesetzbuches, Berlin, 1949, pp. 266-269;
Walter Kaskel, Arbeitsrecht Neubearbeitet von Hermann Dersch, Berlin, 1932, pp. 188190; O. Jaümig et al., Bürgerliches Gesetzbuch, Munich, 1981, pp. 622-624.
Startling continuities in the immediate post-world-war-two period are suggested by the
following excerpt from the leading commentary for 1953:
(After the first world war), basic principles concerning dependent work
took form, that steadily departed from the character of the contract of
employment as part of the law of contracts, finding their basis in the
mutual bonds arising out of cooperation in the enterprise and in the
collective shaping of the work-relationship. This development was not
interrupted while the Law for the Ordering of National Work of 1934 was
in effect, since this law, as far as the essence of the dependent
service-relationship is concerned, simply took over the basic principles
already developed, and the leadership-principle that it introduced made
no substantial difference in this. The new conception of the workrelationship as a community-relationship in personal rather than material
law definitively asserted itself and still prevails today .... While the earlier
jurisprudence required employer and worker each to bear the risk falling
in his own ambit of responsibility -- the employer, the interruption of work
due to technical or economic causes affecting the enterprise, and the
worker, the interruption brought about by his own conduct or by that of his
comrades, with the risk to be divided between them in the event of
general disturbances -- the Reichsarbeitsgericht, after the Law for the
Ordering of National Work came into effect, concluded from the leading
position of the entrepreneur in the affairs of the enterprise and from his
duty of caring for the welfare that he alone had in principle to bear the full
risk and that only jeopardy to the continued existence of the enterprise,
taken together with the worker's duty of fealty, could justify an occasional
partial or even complete extinction of the wage claim. This principle
continues to be recognized after the suspension of this law, although it is
now also derived from the position of the employer as entrepreneur who
has the direction and responsibility for the leadership of the enterprise,
derives the gains from the work and must therefore also bear the losses.
(RGR Komm. zum BGB, 1953, pp. 304, 308) Subsequent developments
reinstated the doctrine of "spheres."
The commentator does not consider it worth remarking that "while the Law for the
Ordering of National Work was in effect," as he tactfully characterizes the Nazi regime,
the "leader" of the "works-community" did not have to worry about independent labor
74
organizations, let alone the risk of strikes. But the turn of events recorded in the
commentary underlines the fact that it is not the substantive outcomes of these cases
that are politically significant, but the twists of doctrine. .
75
As a practical matter, the subsequent judgments were more often controlled by
matter, the subsequent judgements were more often controlled by reasonings
associated with the so-called labor-community, involving a notion of imputed solidarity
between strikers and non-strikers and exempting employers from liability for wages
where the inability to accept the services of employees willing to work was due to a
strike or other labor-action, but the linkage between this concept and the notion of the
works-community was everywhere in the language of the decisions. It helped to
obscure the curious imposition of class-solidarity on all workers regardless of their
subjective dispositions or individual interests and to provide a generalized ideological
justification for this refusal to apply legal provisions precisely intended to deal with the
issues. The German courts swept wide. An especially striking decision by a provincial
court, some years later, denied the claims for wages made by higher office and
supervisory personnel rendered unable to work by a lockout of the production workers
in a textile plant, where the lockout came about on instruction of the trade association,
combating strikes elsewhere in the industry.
The angry objections to these decisions from Clemens Nörpel, the labor law
specialist who was a leading functionary of the small clerical and managerial
employees’ union allied to the socialist-oriented labor movement (ADGB), indicate
something about the conflict generated among different groups of workers by this
doctrine:
Of course, it is progress in principle when the courts hammer it into white collar
employees, above all, that there are bonds of solidarity between them and the
workers. Unions also carry on this essential work of enlightenment. But the
76
practical conclusions that the courts are drawing are as yet altogether without a
basis in actual developments. The unions first have to adjust themselves to this.
The workers' unions would have to reach an agreement with the employees'
unions in every strike. That would soon make common demands inescapable.
Preconditions, in a word, that are so far only in their earliest beginnings. The
courts can't go on this way, forcing life to make an abrupt, total turnabout. We'd
come to catastrophic conditions (Nörpel 1926, p. 102,cp. Nörpel 1925). 6
But characteristic and suggestive as Nörpel’s pragmatic objections may be, our interest
in the problems of assigning liability in these cases is not limited to their direct effects on
the state of labor relations.
The decisions assumed importance by virtue of their rationales more than by
virtue of their immediate legal outcomes. In the general crisis of legitimacy of the
Weimar republic, where concepts of pluralism and democratically-controlled group
conflict were seen by many as breaches of public order and a threat to the state, the
6
The issue was attentively followed in the Korrespondenzblatt of the General Council
of the Free Trade Unions; consistently pressing the case for wage payments. Of
course, the situations often involved closures having nothing to do with partial strikes,
and there was a general union interest in preventing judicial innovations that would
make it impossible to claim wages when plants were closed by shortages,
transportation problems, or breakdown of energy supplies. See Arbeiterrechts-Beilage
Nrs. 1 and 6, 32 Korrespondenzblatt (1922) and Arbeiterrechts-Beilage Nr. 6, 1923. In
the former of these, the newsletter calls attention to the lower-court decision in the
tramway case, in an article bitterly noting that the whole problem is one where the legal
outcome depends on chance. In Berlin, for example, courts in the North and West of
the city, rule against wage claims, while the rest tend to rule in their favor. The last
cited article covers the High Court decision of February 6, 1923, sarcastically jibing at
the "social" interest of a court that rules against those with the only real "social" claim
and charging it with having done nothing more than to throw up a defense of large
entrepreneurs faced with strikes. For Nörpel's overall conception of labor law, see
Nörpel/Gusko 1932.
77
generalized reasonings of the court were read for their larger ideological implications
and had effect at that level, especially when taken together with such related legal
doctrines as those laid down in decisions holding all strikes on behalf of organizational
objectives, including attempts to secure reinstatement of employees dismissed for union
activities, as counter to good morals and therefore illegal. The unspecific concepts of
"community" and the related "communal" criteria of good morals were deployed to
weaken the legitimacy of class-organization. The emphasis on organization by "works"
rather than by collective union-management relations, moreover, was a primary theme
among employers' organizations and their allies (Hartwich 1967, 314 f.)7
3. The Ambiguity of Weimar Labor Law
A leading proponent of the Weimar labor law promoted by Sinzheimer took
strong issue, however, with Nörpel's objections to the high court's doctrine. Heinz
Potthoff wrote:
Nörpel is in the midst of the practical activity of union struggles and, he sees with
special urgency anything that might hamper or endanger the unions and their
campaign for the advancement of the mass of workers. For me, the reform of
labor law comes first, and I see this objective as no less embracing, difficult, and
urgent. In order to push it forward, I am willing to accept a temporary worsening
7
See also contributions by Josef Winschuh and Hermann Meissinger in Potthoff
1925. The non-striking "yellow" unions in Germany referred to themselves as the
"works-community" movement (Werksgemeinschaften), and the major employers, at
least in heavy industry, broke their 1918 agreement with the genuine unions to end their
support for these associations, usually company-unions, as soon as the employers
regained the ascendancy after the stabilization of 1923-4. Hartwich 1967, pp. 314 f. A
more thorough examination of the ideological significance of "Betrieb" and
"Betriebsgemeinschaft" would have to consider in some detail the conflict over
works-councils that began in 1919 (Crusius/Schiefelbein/Wilke 1978).
78
of the workers' position. Because it is simply true that progress in legal policy is
more easily made against the workers than for them (Potthoff 1926, pp.
106-107).
Potthoff could well feel that he had earned the right to weigh such alternatives
and to speak in this manner to the trade unions, since he was one of the outstanding
supporter of a conception of labor law that assigned the highest importance to the
interests of workers and to the organizations of labor. With Hugo Sinzheimer, he had
founded the journal Arbeitsrecht in 1914, and like him, he assigned a special weight to
the concept embodied in the title. Labor law, in that view, is not simply the aspect of the
legal system that covers the relationships and claims pertaining to employment. It is,
rather, an integral system, at least in principle, for establishing the terms upon which the
interpersonal relationships comprising the organization of work can be justly and
peacably maintained. It is, moreover, a system of organization destined to replace and
not merely to supplement the objectified and impersonal formalisms of the legal system
that modern states have established under the influence of liberalism and capitalism.
And its basic actors are collective legal personalities, not the individuals of liberal
legalism. Accordingly, Potthoff strongly supported the rights of coalitions of workers, as
well as employers, and the principles of collective bargaining. He shared Sinzheimer's
views about the normative effects of collective agreements and their superordination
over individual contracts of employment, and he campaigned for systems of workers'
representation long before the establishment of works-councils. And yet he insisted that
the court's decision on the matter of entrepreneurial risk, although he disagreed with the
specific ruling, represented an "historic" breakthrough for this novel conception of labor
79
law.
The crucial thing, as he saw it, was that the Court had announced that it would
rule on the basis of "social conditions" and not the rules of the German civil code. Since
the occasions on which the court acceeded to this principle of interpretation involve
strikes, the immediate rulings have been inimical to the interests of workers, as the
unions see them. But all this will look quite different, he asserts, once a "social
economy" has been achieved, since strikes will not be allowed then anyway:
Now it is quite true that we do not have socialism today, but capitalism, and that
the attitude of the unions must adapt itself to this legal and economic order, But
the reform efforts must nevertheless go in the direction where the goal comes
into view. Valid developmental ideas must not be rejected simply because they
are in advance of the situation to which one is adjusted (Potthoff 1926a).
Potthoff devoted a whole issue of Arbeitsrecht to this issue, significantly called
"Implementation of the Collective Idea.” After the opening article by Nörpel cited above,
Potthoff offered not only his own reply but also two more articles by close associates,
reviewing recent works on the question of the collective identity of the enterprise and
the distribution of entrepreneurial risk in the event of interruptions in production. All
three of these articles agreed that the court had erred in its 1923 decision when it
suggested that the works-community exempted the employer from his responsibility for
paying wages without giving due weight to the facts of his proprietorship and profits, but
all three welcomed the suggestion that there was a collective responsibility among
employees, so that none of them as individuals could escape the consequences of
actions taken by the collectivity. Above all, the articles celebrated the principle of
80
interpretation introduced, welcoming it as a major step towards rendering the enterprise
legally independent of the congeries of individual contracts usually used to characterize
it, towards giving it its own legal personality. For Potthoff, the central point is that
workers enter into a collective venture, with collective norms and obligations, when they
enter upon work, and they can only assert collective rights within functionalized organs
of production. "As long as we do not achieve this organic-social attitude towards labor
law," he maintains,"labor law cannot attain its most important cultural objective." "The
individuals must feel like members of a whole, not merely like associates but like
collaborators in a common venture," he continued, "what hinges on this psychic
reorientation is the very possibility of vocational satisfaction and thus of the people's
culture of work and everyday life (Potthoff 1926, p. 108)." 8
Potthoff argued that the ultimate legal justification for the court's initiative in
8
The other articles in the special issue, in addition to Nörpel's and Potthoff's, are Else
Buddeberg, "Der Betrieb als Kollektivbegriff der modernen Arbeiterverfassung," pp.
117-124, and H. Philipp, "Lohnanspruch bei Betriebsstockung und Teilstreik.
Entwicklung von Individualrecht zu Sozialrecht", 127-134. Elsewhere in the same
volume, Potthoff criticizes several decisions that take up the mistaken aspect of the high
court's decision, assuming a community of interests between employers and workers
rather than recognizing the collective responsibility of workers. In short, Potthoff tries to
separate the doctrines of "Arbeitergemeinschaft" from "Betriebsgemeinschaft," although
the courts consistently linked them. "Fehlurteile," Heft 4, (April, 1926), 314-317. See
also the articles by Potthoff in Potthoff 1925. For an indication of similar thinking in
Socialist circles, see, for example, Hermann Muttutat, "Die Neugestaltung des
Arbeitsrechts," Sozialistische Monatshefte, 29. Jg. Bd. 60, 406- 411 (1923) Potthoff
puts this "collectivist" decision at the center of his wider treatment of "Die
Verselbständigung des Betriebes," 55 Juristische Wochenschrift 533 (Heft 5, 1926). For
a fascinating treatment of Potthoff and other outstanding jurists active between 1920
and 1950, putting the key issues in a different methodological and theoretical context
than the one presented here, although one that would have to be considered in more
extensive work, see Spiros Simitis, Die faktischen Vertragsverhältnisse als Ausdruck
der gewandelten sozialen Funktion der Rechtsinstitute des Privatrechts, Frankfurt,
1957. ."
81
moving away from the individualistic doctrines of the civil code derives from the Weimar
Constitution. He does not claim that that constitution lays down binding and effective
direct norms rendering the law of labor relations collectivistic, but rather that the change
is dictated by the "spirit of the constitution," that is "social" as well as "democratic.”
"That means the spirit that speaks out of the constitution as well as the spirit that gave
birth to it, the underlying idea of the fundamental law, as well as the spirit of the age that
created it." While the letter of the law remains the same, he asserts, the meaning must
be changed, if it is not to run counter to the foundations of the legal order and of the
state itself (Potthoff 1925a, p. 4).9
Although the Weimar constitution does not make a commitment to the abolition of
the wage system, he maintains, it does set in train the end of individualism in law, as
social reality has long ended it in most spheres of life. The interplay between the courts
and the legislature will achieve this design, formalizing a constitutional structure to
comprehend the actual tendency in the shape of things. And in this process, he
asserts, the courts must be the pioneers. "As someone who knows his times and their
social needs, the judge is the best reformer of the law," he maintains (Potthoff 1925a).
If the outcomes are imperfect or even incorrect, the need is to work on litigation and
legal doctrine to move developments in the right direction. Any attempt to assert
individual claims instead, however tempting the immediate advantage, is reactionary
and vain. The day of the collectivity has come.
9
For a similar reading of the constitution, in this connection, see Edgar TatarinTarnheyden, "Artikel 165. Recht der Berufsverbände und Wirtschaftsdemokratie," in
Hans Carl Nipperdey, Die Grundrechte und Grundpflichte in der Verfassung 3. Bd.
(1930. Despite Tatarin-Tarnheden's blatantly corporatist treatment of this and other
questions, Neumann praises him in his review of Nipperdey’s volumes (1929: 1981).
82
Sinzheimer vehemently disagreed with Potthoff's assessment of the issues. First
of all, he opposed the doctrine of "works-community" in a number of professional
opinions for trade unions . His basic argument in the opinions is that the courts had
mistaken the law by applying an implausible social analysis under cover of the general
clause on "good faith" to something that should properly be treated as a straightforward
case in contracts. He denied that the parties associated within a works could be
considered as being in community with regard to anything to do with wealth
(Vermögen). The co-participation established by the works-council-legislation has only
to do with questions concerning the treatment of labor; wider moves towards economic
community have been aborted, and they could not, in any case, affect the point at issue
here, unless they had actually progressed to the point where they eliminated the
conflict of economic interests between workers and those for whom they work. The
reciprocal obligations concerning the exchange of wages for work arise out of a
reciprocal contract (gegenseitigen Schuldvertrag) as provided in the civil code; there is
no contract of association (Gesellschaftsvertrag). In consequence, there is no more
reason for a wage-earner to bear any part of the risk involved in the entrepreneur's
pursuit of profit than for a supplier who delivers goods as per contract at a time when
the goods cannot be utilized.
As for as the supposed work-community among the employees, Sinzheimer
maintains that they are unified in law only by being subject in common to the authority of
their employer; they have no common legal obligations in the sense of the civil code. It
is the power of the employer that forms the whole that the court mistakenly treats as a
collective legal actor. The workers cannot control one another at work and they cannot
83
be held responsible for one another's actions. A fortiori, workers cannot be held
responsible for the conduct of employees in other works or even industries. At most, he
was prepared to concede the principle embodied in the legislation covering
unemployment compensation, that workers who would benefit directly from the changed
terms of employment being sought by the strikers might be excluded from wage
payments. There, at least, there was a community of interests. In sum, Sinzheimer
rejected the doctrine of imputed solidarity and "spheres" as well as the doctrine of
"works-community." And he warned:
One can see . . . the upshot of adjudication that no longer orients itself to the law
and its principles, but to social relationships as the judge imagines them to be . . .
. If this development continues, it will soon be possible to say that we have labor
law indeed, but that it is only valid to the extent that the judge considers it to be
reconcilable with the principle of good faith, as he understands it (Sinzheimer
1929, pp. 42 and 45)10
These are intelligent legal arguments. But Sinzheimer was syndicus for the Free
Trade Unions (ADGB) and it was his job to deliver effective legal arguments on issues
affected the vital interests of unions. One of the professional opinions attacking the
court's doctrine in these cases was provided by him to a union facing shop-closures as
a result of the breakdown of markets during the Ruhr-Boycott and wanting to claim
wages notwithstanding the doctrine of works-community, and the other was given to the
10
Reprinted, in part, in 16 Arbeitsrecht 4 (April 1929), 223-227 and 16 Arbeitsrecht 5
(May, 1929) 297-303. See also Hugo Sinzheimer, "Absatzstockung und Arbeitsvertrag,"
(1924) in Sinzheimer 1976 1/ pp. 207-215. Similar: Franz L. Neumann, "Betriebsrisiko,"
1 Arbeitsrechts-praxis, Heft 10 (1928), pp. 219-223 ."
84
trade union of supervisory office-workers, interested in being excused from the
supposed labor-community when there is a strike of production-workers. Neumann,
moreover, was working together with Sinzheimer during a number of these years, as he
indicates in dedicating his 1932 book on the legal status of trade unions to Sinzheimer,
and certainly knew Sinzheimer’s position on this specific controversy. So the
agreement between Sinzheimer and Nörpel on the specific issues need not be decisive
for the theoretical questions we are exploring. The question remains whether
Sinzheimer's advice on these matters rests on a coherent position different in principle
from the vague invocation of "social" reasoning whose consequences he so vigorously
attacks here, or whether his insistence in these cases on the contract law of the
German civil code and his dismay at the liberties taken by the judge simply confirms the
more general thesis advanced by Neumann after the collapse of Weimar, that the type
of jurisprudence characterized by institutionalism and the recourse to general clauses is
completely politicized and opportunistic, devoid of all inner rational structure.
4. Sinzheimer’s Theory of Collective Labor Law
Sinzheimer's social analysis of the civil law in its effective functioning took over
from Gierke the conception of the employment relationship having more in common with
an institution of interpersonal dependency and domination than with a contract of
exchange (Gierke 1868, 1914). This is common ground with Pothoff. But his theory of
the institution Sinzheimer derived from Marx, by way of Karl Renner (1904: 1949, 1929).
The power of domination inherent in property in a capitalist society is acknowledged as
the decisive fact concerning work, but the authority associated with that power is seen
85
as provisional, loosening as property loses its directive functions in modern industry and
as labor organizes its collective opposition. The authentic law of the relationship is
increasingly generated by the resistance of those subjected to the power in question. It
manifests itself as a provisional constitutional structure established by collective
agreement, either for a stated time or in an intermittent process. As it changes over
time, it registers the various stages towards the full democracy that is to come, when
the functions of direction and coordination will be performed altogether without
reference to rights of property.
This authentic law is the labor law. Its center and paradigm is the collective
agreement. Its terms consequently depend on the comparative weights of the
contesting powers at a given stage, taking into account all of the resources pertinent to
a power contest within an institution whose productive functioning is essential to the
survival, let alone the well-being, of society. As long as the organization of labor is not
strong enough to organize production, it must deal with an employer who is a proprietor.
As long as it must deal with such a proprietor, it must have full benefit of all safeguards
provided by the formalizations of contract law, the old formalizations of the civil code,
now performing new kinds of functions, as well as the new laws of participatory councils
and collective agreements.
The social constitution of work, like the political constitution of the state, must
comprehend a diversity of relationships among the same set of actors, and there is no
rule of consistency about the structures of these relationships. Simmel's brilliant
inventory of the plurality of social figures is contemporaneous with Sinzheimer's first
interest in sociology. Gierke's treatment of early law, and especially his work on
86
Althusius, also illuminates the possibilities of pluralism. What Sinzheimer adds to this is
the notion of a dynamic constitution, integrating the mix from time to time but also
encouraging it to change. This is certainly not Marx's theory of social or political
change, since it stresses successive and cumulative reorganizations of ongoing social
functions, including production and legal ordering, rather than revolutionary break and a
new starting point.
Nor is it, however, a theory taken in by illusory homogenizations and romantic
spiritualizations of exploitative power relationships. At least not as a rule.11 Sinzheimer
is enthusiastic about the new labor law and about the potentialities of the social and
political constitutions established in 1919. But he never loses sight of the fact that they
are possibilities and not completed achievements. That's what made him a tough
11
There are some indications that Sinzheimer's 1919 design for "anchoring the
councils in the constitution," that eventuated in Article 165 of the Weimar Constitution,
although ostensibly meant to accommodate the demands of the radicalized workers in
the council movement (Sinzheimer 1919), may have been concerted with Rudolf
Wissell's Ministry of Economic Affairs, where there was scathing contempt for radicals
and for any socialization measures that might damage entrepreneurial leadership. The
conception of "Gemeinwirtschaft" promulgated there was expressly conceived by some
in the ministry as continuous with the views of those who had been most committed to
national victory in the war, placing the general good above that of individuals. A
departmental press spokesman vehemently praised Sinzheimer's proposals while
claiming departmental parentage for them, during a remarkable confidential press
briefing on the day on which Sinzheimer first presented them to the S. P. D.
Parteikonferenz in Weimar. The spokesman remarked that it was high time that the
government "threw the people a bone.” (Transcript in Nachlass Arnold Brecht,
Bundesarchiv Koblenz) In June of 1919, Wissell twice wrote the chief author of the
ministry's ideas, Wichard von Möllendorf, in terms that suggest full agreement between
themselves and Sinzheimer (Wissell 1983, pp. 265-266; cp. Miller 1978). But
socialization and council discussions within government, Social Democratic Party, and
Free Trade Unions were in such an ambiguous and confused state in the Spring and
Summer of 1919 that Sinzheimer's closeness to Wissell at that time, notwithstanding all
the talk of community between industry and labor, also brought him close to the only
influential insider force pressing concretely for measures to transform the structure of
the economy. Bieber 1981, pp. 685-695
87
lawyer committed practically to the organizations whose power he considered essential
to the actualization of the constitution--what in American labor law is called "managing
the agreement"--and preparing for further movement. This commitment to the power of
the trade unions and, to a lesser extent, the Social Democratic Party, increasingly
distinguished him from the liberal socially-minded reformers who were often his allies
against Left and Right in his constitutional designs. His political alignments form an
essential complement to his conception of those designs and his hopes about their
eventual consequences (Sinzheimer 1927).12
4. Complementarity and the Labor Courts
12
For a contrasting assessment of Sinzheimer's work and of the legal policies of the
labor movement in Weimar, see the well-researched work by Martiny (1976). On the
central place of "organization" in the ADGB's political strategy, see Gerhard Beier,
"Autonome Transformationspolitik der Gewerkschaften," Horst Heimann/Thomas
Meyer, Hrsg., Reformsozialismus und Sozialdemokratie (Berlin, Bonn, 1982) 301-316.
Sinzheimer's conception of constitutional development derives in part from Georg
Jellinek 1906. See Hugo Sinzheimer, "Georg Jellinek," (1938). The question whether
the growing power of labor can be "cashed in" from time to time in the form of
constitutional change and reform of the law is matter for interesting discussion among
social democrats during the debate on the BGB in the last decade of the nineteenth
century. Thomas Vormbaum 1977. It also occasions a thoughtful but heretical
rejoinder to Engels'/Kautsky's treatment of Menger's "Juristen-Sozialismus", by an
anonymous writer uncharacteristically given space in Neue Zeit by Kautsky. The writer
distinguishes two views of the power of labor, one taking it as "latent" and the other as
"actual.” Those who hold the former think that labor's increasing power can only assert
itself in a revolutionary moment; the others, that the power steadily changes the social
equation and makes possible continuous and cumulative assertion by way of legal
changes. Anon., "Die soziale Frage und die Rechtsordnung," Neue Zeit, XI/2
(1890-91) Nr. 40, pp. 430- 438; Nr. 41, pp. 476-480; Nr. 43, pp. 539-544. For an
introductory overview of the competing conceptions of "Sozialpolitik" and especially the
widespread disillusionment among social reformers with the "class-selfishness" of
organized labor in Weimar, useful as a contrast to Sinzheimer, see Preller 1949, pp.
204ff.
88
Sinzheimer’s view of the new labor courts offers a striking illustration of the
complementary relationship between his theoretical conception and political activity in
the broad sense, and it bears directly on the issues raised by Neumann's critique. Even
if it is granted that Sinzheimer's social analysis of institutions differs from the
institutionalism easily adapted to denials and suppression of social conflict and that the
difference is by no means simply a matter of political or organizational opportunism, it
seems even more clear from the presentation of his curious "constitutionalism" that
much law will have to be made by judges. And the conception of judges free to make
laws is inseparable from the flight from specific legal norms, comparatively constraining
upon judicial procedure and decision, to "general clauses" concerning procedure and
substance, a feature that Neumann correctly identifies as a hallmark rationalization of
National Socialist jurisprudence. Sinzheimer did accept the shift from norms to
principles, if also with mounting discomfort. He vigorously fought, first, for informal
proceedings in labor courts, based on the practice of the pre-war commercial courts, a
mix of administrative hearing and mediation, and, second, in his regular column in Die
Justiz, he repeatedly supported Ernst Fuchs' enthusiastic version of the "free-law"
doctrine, propogated at great length in the earlier years of the journal.
Yet he qualified his agreements in both instances. His campaign with regard to
labor courts concentrated on the need to separate them completely from the judicial
system at the level of first instance and to give a major role on the courts to lay
assessors drawn from the respective organizations of both labor and ownership, and
this familiar trade union demand is a far cry from the mythical judge as wise voice of the
Acommunity.” In association with successive ministers of labor and with the
89
representatives of the ADGB he carried this fight through years of deliberations in the
ministerial committee on the unification of the labor law, of which he was a member, and
he also played a leading part in opposing attempts by Gustav Radbruch, during his brief
tenure as Minister of Justice, to sway the Social Democratic Party from this antilegalistic position.
His support for free-law in general was qualified, first, by a constant if not always
consistent insistence that rigorous legal-scientific analysis of doctrine had to precede
any consideration of larger social considerations that might properly be invoked in a
legal case, and, second, by the requirement that the makeup and dominant ideology of
the judiciary would have to be rendered more consistent with the newly-established
democratic constitution before their range of free discretion could reasonably be
expanded. That was the point of his leading role in the Association of Republican
Justices and his determined campaign to require governments to counter the "crisis of
confidence in justice" by democratization of legal education and the courts.
The Association of German Justices (Deutscher Richterbund) fought Sinzheimer
on both complexes of issues. The contest more directly pertinent to our present
interests concerns the character of the labor court. This was the issue that delayed
enactment of the legislation for six years, as judicial officials and groups combined with
representatives of business interests to demand incorporation of the labor law into the
work of the ordinary courts, or at least the full integration of labor courts into the judicial
system, with its professional judiciary. The legislation finally secured by the stubborn
insistence of Brauns, the priest who was minister of labor for most of the years of the
Weimar Republic, the trade unions, and the small group led by Sinzheimer satisfied the
90
most important demands of organized labor. In a furious, last-minute attempt to block
its enactment, the head of the Association of German Justices, a judge of the high
court, maintained that the division being created between civil law and the law of labor
was coming "at a time that needs synthesis between them more than any in the past"
and at a time that gives the most promising signs that the legal profession, as well as
the general public, is coming to recognize "that work does and must represent the
kernel and essence of all life." Labor cases are making the courts in general more
social-minded, the conservative judge argued, presumably with an eye to the workscommunity decisions. To separate labor jurisprudence would impede the development
towards organicism and Acommunity.” He wrote:
We have abandoned the overly logical and abstract way of thinking, influenced
by a misunderstood Roman law; we are moving towards an understanding of law
as something biological, a segment of life as it is lived, and towards a
comprehension that law and equity are inseparable. With this, we are leaving the
narrowly civilistic point of view and granting the social idea its rightful place. . . .
The spirit of all-German fellowship is about to take the place of Romanist
individualistic egoism.13
All this is being disrupted by the decision to give labor its own separate courts, in which
13
Juristenwochenschau, 55. Jg. Heft 28, 4 Dez 1926. For Sinzheimer's role in
governmental deliberations on the labor courts, see "Reichskanzlei Akten betreffend
Einheitliches Arbeitsrecht (Arbeitsgerichtsgesetz)", Bundesarchiv Koblenz, R43 I/
2062-2063. The first item in the file is a "Programm für die Neuregelung des
Arbeitsrechts in Deutschland," by Sinzheimer. Paul Umbreit, the editor of the
Korrespondenzblatt of the Free Trade Unions, represented that organization in these
discussions. Note the paralellism between his intervention in the meeting of 20/21
February 1922 (f. 188) and Sinzheimer's written response to the agenda (f. 178). Cp.
Martiny 1976, pp. 99-114.
91
the narrow class interests of labor, according to Justice Reichert, are bound to
predominate. The judge, in short, never confused Sinzheimer’s critique of liberal
formalism in labor law with his own proto-fascist position.
The whole vocabulary of the "social" interpretation of the labor relationship and
"works-community", as well as the shining example of the 1923 decision on
entrepreneurial risk are turned loose against the legislation that Sinzheimer, mistakenly
as it unfortunately proved, welcomed as the beginning of a new day for labor, a
triumphant confirmation of his overall conception about labor and the law:
Out of the dark corners of a law indifferent to the masses of working people, a
law and a way of proceeding have now emerged, that shed the light of full legal
worth upon the masses. This law would never have come about without the
struggle, the effort, the sacrifices, and the growing power of the labor movement.
The developments in labor law show more clearly than any other legal field that
the dynamic approach to law is correct. The new state of the law has not come
out of juristic theories and dogmatic learning. The new state of the law is the
precipitate of the mighty social movement, it is the formal recognition of an actual
power (Sinzheimer 1976, 1/ p. 112).
Changed conditions undermined that power, and Sinzheimer's hopes proved
illusory. We do not contend that Sinzheimer's political judgment was unerring or that his
theory is infallible. A theory that respects the freedom that prevails in the political
domain cannot offer prophecy. The question is whether it provides insight.
The answer suggested here is that Sinzheimer's legal theory cannot be
considered apart from his legal, publicistic, pedagogical, and political practice, because
92
his theory itself presupposes continuous action to shift the balance of social power; it
rests ultimately upon a theory of constitutional change that recognizes that constitutional
questions involve an interplay between questions of law and questions of might. This is
not to suggest some dialectical unification of theory and practice: the relationships are
those of complementarity rather than synthesis. But the rendering of legal structures
and relationships provided by the theory is expressly context-dependent, and the
context is understood to be shaped by contests among social and political actors,
contests whose outcomes cannot be determined by the theory. Accordingly,
Sinzheimer never promulgated a universal theory of "institutionalism;" he saw certain
institutionalist modes of legal interpretation becoming increasingly pertinent to certain
issues within a new constellation of social forces. He was almost always eminently
clear about the limiting conditions upon which such proposals rested, and he knew what
it meant to lose the fight to secure those conditions and the consequent need to rethink.
His theory might best be construed as a strategic conception, whose concrete meanings
are presented to us more reliably in specific legal arguments than in the most general
theoretical utterances.
5. Neumann and Sinzheimer
Neumann knew all this, because he was intimately associated with Sinzheimer
during the later Weimar years, and shared his strategic conception in most respects.
When Neumann himself wrote on the sharing of entrepreneurial risk in 1928 and 1929,
he repeatedly cited Sinzheimer in support of his argument. First, he insisted that the
general clause on "good faith" can be used to supplement the more rigorous norms of
the civil code but not to supecede them. Secondly, on a more methodological level, he
93
distinguished between legal sociology as a positive, value-free science and sociological
analysis as an auxiliary science for jurisprudence; and he insisted that such analysis is
in order only after "technical jurisprudence" has done its work, to check whether social
change had subjected the applicable legal norms to a change in function to the extent
that their literal application would make no sense. And third, he argued that when such
a controlling analysis is performed with regard to the questions in dispute in these
cases, it shows the continuing social relevance of the minimal safeguards for workers
built into the provisions on employers' liability when they are unable to utilize the
services duly offered in compliance with a contract of employment.
In answer to Ludwig Bendix, who agreed with his conclusions but challenged him
for relying on technical legal analysis and for rejecting the free-law method of judicial
discretion and social interpretation of general clauses acknowledged by the court-- as
the social movement had been urging it for decades to do (Bendix 1929)--Neumann
insisted that such "free-law" approaches become reactionary in their effects once the
working class succeeds in translating some of its demands into legal institutions. For
Neumann, more simply than for Sinzheimer, at least at this time, the question of judicial
discretion appeared to be a strictly political question. The jurists who had insisted on
positivist rigor when bourgeois control over law was secure now plead for free-law and
institute a judicial regime of American-style judicial review, as well as manipulative
deployment of general clauses and analyses that purport to be social. The working
class, that had made some gains before the war,when there was nothing like a
democratic constitution, with the help of some social-minded judges using informal
methods, now must solidify the newer legislative achievements and back the
94
constitutional structure that made them possible by drawing on the defensive
capabilities of legal formalism. Although liberal in provenance and ideologically
obscurantist, Neumann contends, these forms are neutral in their effects and can be
employed on behalf of workers' power. Everything possible must now be done to bind
judges to the letter of the law and to a rigorous logic of legal inferences, because they
will use any discretionary power they are granted on behalf of their social class. In the
course of arguments that are more tactical than strategic, Neumann probably goes
further in the direction of Hans Kelsen’s positivism than Sinzheimer, notwithstanding
broad areas of agreement between them.
Like Heinz Potthoff and some others usually allied with Sinzheimer and
Neumann, Bendix welcomed the "collectivist" arguments and free-law methods in the
decisions of the High Court, while deploring their specific contents in these cases, and
he maintained that the logic of social events would lead to a reversal of the
objectionable conclusions, now that the judges had begun on the course of recognizing
the need to orient themselves to social realities and social outcomes (Bendix 1929).
Neumann dismissed this contention, but not because he saw some general dangers
inherent in "collectivist" -- or what he would later designate as "institutionalist" -- legal
thinking as such. Rather, he insisted once again on the merely political character of the
judges' choice of methods and arguments. He noted, for example, that the courts were
overwhelmingly refusing to credit the real solidarity manifested by workers in refusing to
work on May Day, and that they were everywhere approving dismissals without notice,
on the basis of a strict reading of the relevant clauses in the civil code. Neumann, like
Sinzheimer, was perfectly willing to see a more "institutionalist" reading of the workplace
95
situation, even on the matter of sharing entrepreneurial risk, after there had been "a
thoroughgoing implementation of the ideas of economic democracy."
On the wider methodological issue of the relations between legal and social
analyses, then, Neumann wrote:
The incredible difficulty of explicating the institutes of labor law lies precisely in
the discrepancy between the economic base and legal superstructure.
Sociological jurisprudence has the task of restoring a correspondence between
them, so far as possible, although, needless to say, this must not involve
dismissal of clearly applicable compelling legal norms, regardless of whether
such disregard would promote or harm the interests of workers (Neumann 1929).
"The great significance of Sinzheimer's Foundations of Labor Law," he concludes,
writing in 1929, "consists in its full understanding of this complex of problems."
Neumann's own methodological reflections, it seems, displayed the same uncertainties
as Sinzheimer's, indicating the "incredible difficulty" of the problems. His frankly political
justification for positivist rigor brushed aside theoretical difficulties with even greater
facility than Sinzheimer's more interesting design (Neumann 1929). As a participant in
the legal and political struggles of the Weimar period, Neumann had no methodical,
theoretically-grounded solutions to propose.
Under conditions of defeat and exile, however, Neumann became intrigued with
the possibilities of an integral, dialectical theory that could read univocal meanings in
developments and project necessary next steps. That theory, influenced more by
Harold Laski's confident renditions of Marxist generalizations than by the more subtle
forms of Marxism with which Neumann had been acquainted earlier, inclined towards
96
simplifications cast in terms of structurally constrained ideological stages that were in
turn reflections of socio-economic ones (Neumann 1980). As Neumann himself
eventually came closer to seeing once again, such theory could also be deeply
misleading, precisely because of its excessive ambition (Neumann 1957).
While it may be possible to formulate "institutionalism" as a single coherent
theory by abstracting certain common features from several sorts of arguments and
showing their similarity to certain French legal theories, it is by no means clear that such
a theory was held in Germany in that way. Potthoff's position depended on the special
importance he assigned to work as the constitutive activity of culture. Nazi
"institutionalism" makes no sense without the conception of the "Führer;" and
Sinzheimer's "institutionalism" depends equally on the conception of organized worker's
resistance to domination by property. These fundamentally different contexts give very
different meanings to the elements generalizable from both. We need a greater
appreciation for ambiguity and complexity, as well as curiosity about the detailed
treatment of particular problems, to appreciate Sinzheimer's achievement -- and to build
the kind of legal theory to which he aspired.14
5. Conclusion
14The
present reconsideration of Neumann’s challenge to Sinzheimer is not intended
to suggest that Neumann had no cause for concern about ambiguities in his own earlier
thought as well as Sinzheimer’s. Carl Schmitt’s subtle apologia for National Socialist
jurisprudence was the prime cause of uneasiness, in view of his own earlier respect for
Schmitt’s work. In his theory of concrete order (Konkretes Ordnungsdenken), published
in 1934, Schmitt distinguished between settled domains appropriate to technical,
positivist jurisprudence and dynamic, political domains, subject to regulation in
accordance with inner principles articulated in "concrete norms," a distinction not unlike
the one that both Sinzheimer and Mannheim made.
97
Duncan Kennedy has offered an attractive theory of the relationships between
the forms and substance of law, working with American private law. He finds inner
structural connections between "rule”-jurisprudence and "individualism," on the one
hand, and between "standards-" jurisprudence and "altruism," on the other. While
questioning the plausibility of the methodological program of the former structure, as
well as the ethical viability of its substantive norms, he nevertheless insists that no legal
thinker can avoid some measure of divided loyalties between the two structures, finding
himself abruptly shifting his commitments from one to another on some issues or at
some point in a pattern of argument (Kennedy 1976, 1979, 1980). Up to that surprising
outcome, Kennedy's analysis parallels the arguments of Ludwig Bendix among the
Weimar jurists, the writer who had criticized Neumann's recourse to legal positivist
method. Bendix contrasts conceptualist, positivist jurisprudence, comparable in the
German legal context to Kennedy's rule-jurisprudence, to free law method, relying on
general clauses and social analyses of outcomes, very close to Kennedy's "standards."
He sees these methods linked, respectively, to liberal individualism and collectivist
social thinking. This too is like Kennedy's analysis. But Bendix has no doubt about the
choice to be made, although he thinks that it is more likely to be governed by irrational
psychological and social factors than by rational determination (Bendix 1929b).15 The
troubled experience that Sinzheimer and Neumann, and the others of their generation,
had with such a straightforward commitment underlines the importance of deepening
the analysis before drawing conclusions from it. Although Kennedy's analysis avoids
15
Bendix also criticized Potthoff's theoretical grounding of his position, viewing the
reliance on constitutional doctrine as dangerously rationalistic and unpolitical. See 13
Arbeitsrecht 4 (April, 1926) 257-276.
98
comparative reference, his closing contentions about ambivalence can be given depth
by reflection on the struggles of Weimar socialist jurists to comprehend the repressive
"altruism" and manipulative deployment of general standards to break organization and
destroy solidarity that marked labor adjudication in the Weimar Republic. The fact that
Neumann and some others subsequently treated their own efforts to deal with these
complexities as woefully and obviously deluded cannot be the last word on their
experiences. The brilliant refugee generation, desolate in their isolation, left us one
unfortunate legacy, along with many riches. Probing the agonizing nerve of what they
took to be their own failures, they inclined towards a perversely teleological reading of
German intellectual history. All thinking was reinterpreted as pointing towards Nazi
ideology (or painstakingly exempted from the stigma). Often this included their own
past thought and led to a tragic loss of depth and subtlety (Kettler/Meja/Stehr 1984).16
Neumann's Behemoth remains a classic. But the problems of constituting cumulative
social change cannot be superceded by generalized invocations of revolutionary
politics. And the end of what came after Weimar did not obviate questions of legalized
social reform.
16
Sinzheimer was largely exempted from this tendency to blame the victims
alongside of the oppressors, as witness his sad, ironic, but ultimately triumphant
affirmation of the rich variety of German legal thinking in his book on "Jewish classics of
German legal science." (1938) But he could not escape the consequences of being
deprived of his craft. If his theorizing depended on the complementarity of his practice,
and if forced exile denied him that crucial resource, the Netherlands never received his
most vital, living thought. Even the reflections of such a mind can be stimulating; but
they can't replace the thinking lawyer (Sinzheimer 1935; cp. Taco van Peijpe, "Hugo
Sinzheimer en het nederlandse arbeidsrecht," 10 Recht en Kritiek 7 (1984)).
99
References
Aaron, Benjamin. 1982. "Labor Relations in the United States from a Comparative Perspective," Washington and
Lee Law Review, 39: (Fall) 4: 1247-1265.
Abel, I.W. 1975 Collective Bargaining. Labor Relations in Steel: Then and Now. New York: Columbia University
Press (Carnegie Mellon University)
Adams, George W.1982. "Labor Law Remedies,” Pp. 56-78 in Swan. Kenneth P./Swinton1982.
Adams, Graham. Jr. 1966., Age of Industrial Violence, 1910-1915: The Activities and Findings of the U.S.
Commission on Industrial Relations, New York and London:Columbia University Press
Anonymous 1890-91. "Die soziale Frage und die Rechtsordnung," Neue Zeit, XI/2, Nr. 40, pp. 430- 438; Nr. 41, pp.
476-480; Nr. 43, pp. 539-544
Arbeiterrechts-Beilage, Korrespondenzblatt .1922/3.
Atleson, James B. 1983 Values and Assumptions in American Labor Law, Amherst, Mass: University of
Massachusetts Press
Bain, George Sayers/Price, Robert, Profiles of Union Growth. Oxford: Blackwell.
Beatty, David M. 1987. Putting the Charter to Work. Kingston and Montreal: McGill-Queen's University Press
Beetham, David. 1989. "Max Weber and the Liberal Political Tradition," European Journal of Sociology,
XXX.1989.:311-323
Beier, Gerhard .1982. "Autonome Transformationspolitik der Gewerkschaften," Horst Heimann/Thomas Meyer,
Hrsg., Reformsozialismus und Sozialdemokratie. Berlin/Bonn
Bendix, L. .1929. "Das Betriebsrisiko," 16 Arbeitsrecht 129
Bendix, L. .1929a. "Mehrdeutige Tatsachen, mehrdeutige Gesetze und die Aufgabe des Richters," 16 Arbeitsrecht
673
100
Bensheimer Sammlung .1928. Reichsarbeitsgerichtrechtsprechung, 20 June 1928. 3. Bd., Nr. 35, S. 116
Berger, Suzanne. 1985. Organizing Interests in Western Europe. Pluralism, Corporatism, and the Transformation of
Politics. Cambridge:Cambridge University Press.
Bergh, G.C.J.J. van den .1983. "Schijnbewegingen, Hercodificatie en eigendomsdefinitie in historisch perspectief,"
in Liber Amicorum John Gilissen, Antwerpen: Kluwer Rechtswetenschappen, n.d., pp. 389-404
Berman, Harold J. 1983. Law and Revolution. Cambridge and London: Harvard
Bernstein, Irving. 1972. The Lean Years: A History of the American Worker, 1920-1933. Boston: Houghton Mifflin.
Best, Michael H. 1990 The New Competition: Institutions of Industrial Restructuring. Cambridge, MA: Harvard
University Press
Bieber, H.-J. .1981. Gewerkschaften in Krieg und Revolution. Hamburg: Hans Christian
Blankenburg, Erhard. 1984 "The Poverty of Evolutionism: A Critique of Teubner's Case for 'Reflexive law'" Law and
Society Review 18. 2, 273-301
Brecht, Bertolt. 1967. "Weite und Vielfalt der realistischen Schreibweise," Schriften zur Literatur und Kunst. 1934 bis
1938. Frankfurt: Suhrkamp
Brecht, Bertolt. 1974. "The Caucasian Chalk Circle" in Brecht, Collected Plays. 7:135-229. New York: Random
House
Brody, David 1992 "The Breakdown of Labor's Social Contract," Dissent, Winter 1992
Brody, David. 1971. "The Expansion of the American Labor Movement: Institutional Sources of Stimulus and
Restraint," in Brody, David ed., The American Labor Movement. New York: Harper & Row.
Brody, David. 1980. Workers in Industrial America: Essays on the Twentieth Century Struggle. New York: Oxford
University Press.
Brousseau, Robert. 1980. "Toward a Theory of Rights for the Employment Relation,” Washington Law Review 56: 1
Brown, Lawrence D. .1983. New Policies, New Politics: Government's Response to Government Growth,
Washington:The Brookings Institution
Buddeberg, Else .1926. "Der Betrieb als Kollektivbegriff der modernen Arbeiterverfassung," 13 Arbeitsrecht
(Sonderheft: Durchsetzung des Kollektivgedankens)
Budget Paper E. 1991 Ontario in the 1990s--Promoting Equitable Change. Toronto: Ontario Budget Papers
Buroway, Michael. 1985. The Politics of Production: Factory Regimes Under Capitalism and Socialism. London:
Verso.
Cella, G. and T. Treu. 1982 "National Trade Union Movements," Chapter 10 of R. Blanplain, ed., Comparative
Labour Law and Industrial Relations, Deventer, Netherlands: Kluwer
CIR. 1916. U.S. Commission on Industrial Relations. 1916. Final Report and Testimony Submitted to Congress by
the Commission on Industrial Relations created by the Act of Congress August 23, 1912. 64th Congress, 1st Session,
Senate Document No. 415.
Clune, William H. 1983 "The Political Origins and Political Process of Regulation: What We Can Learn From A
Positive Political Analysis," David Trubek, ed., Reflexive Law and the Regulatory Crisis, papers of a conference at the
University of Wisconsin-Madison, July 18-21, 1983. Madison: Disputes Processing Research Program, University of
Wisconsin Law School
Conference on Regulatory Law and the Regulatory Crisis .1983. Disputes Processing Research Program, University
of Wisconsin Law School, July 18-21, 1983 (Unpublished Compilation of Papers edited by David Trubek)
101
Commons, John R./Andrews, John B. 1916. Principles of Labor Legislation.[Prepared in Co-operation with the
American Bureau of Industrial Research]), New York, London: Harper and Bros.
Connolly, William E. .1969. The Bias of Pluralism, New York: Atherton Press
Cox, Paul N. 1985. “On Debunking Labor Law Doctrine: A review of James Atleson's Values and Assumptions in
American Labor Law" Utah Law Review 1:101-130
Cox, A. .1960: 1983. Law and the National Labor Policy, Westport, Con.
Cox, A. .1976. The Role of the Supreme Court in American Government, Oxford: Oxford University Press
Crusius, R./Schiefelbein, G./Wilke, M. .1978. Betriebsräte in der Weimarer Republik. Berlin: Olle und Wolter
Cumming, Robert D. 1969. Human Nature and History. A Study of the Development of Liberal Political Thought,
Chicago: The University of Chicago Press, 1969. vol. 1.
Dahl, Robert A./Lindblom, Charles E. 1953. Politics, Economics, and Welfare. New York: Harper and Row
Daintith, Terence and Gunther Teubner, eds. 1986 Contract and Organisation. Legal Analysis in the Light of
Economic and Social Theory, Berlin and New York: DeGruyter
Das Arbeitsgericht .1933. 38 Jg., Nr. 5
Davies, P.and Freedland, M. : Kahn-Freud, O. .1983. Labour and the Law, Third Edition, London: Stevens and Son
Davis, Mike. 1986. Prisoners of the American Dream. London: Verso,.
Dewey, J. .1927. The Public and Its Problems, New York: Henry Holt & Co.
Dick, William M. 1972 Labor and Socialism in America. The Gompers Era. Port Washington, New York: National
Universities Press
Donner, A.M. .1979. Bestending en Wederkering. Over het Verband van Staat en Staatsrecht, Zwolle: W.E.J.
TjeenkWillink
Donner, A.M. .1981. "Grondwetsherziening en statsrechtsdogmatiek. Iets over het materiel wetsbegrip," Mimeo.
Dunn, John .1984. The Politics of Socialism. An Essay in Political Theory, Cambridge: Cambridge University Press
Dworkin, Ronald. 1979. Taking Rights Seriously. Cambridge: Harvard
Dworkin, Ronald. 1985. A Matter of Principle. Cambridge: Harvard
Dworkin, Ronald. 1986. Law's Empire. Cambridge: Belknap
Dyzenhaus, David. 1989. "The New Positivists," University of Toronto Law Journal, 39:361-379
Engels, Friedrich and Karl Kautsky. 1887. "Juristen-Sozialismus,"
Die Neue Zeit, 22:491-509
England, Geoffrey. 1982. "Some Observations on Selected Strike Laws." Pp. 221-298 in Swan/Swinton 1982.
Erd, R. .1977. 'Verrechtlichte Gewerkschaftspolitik. Bedingungen ihrer Entwicklung und Veränderung," in Joachim
Bergmann, Hg., Beiträge zur Soziologie der Gewerkschaften, 143-182. Frankfurt: Suhrkamp
Erd, R. .1979. Verrechtlichung industrieller Konflikte. Frankfurt: Suhrkamp
Erd, Rainer. 1983. "Gesetzgebung oder Machtpoker? Das Beispiel der amerikanischen Gewerkschaften." in Ruediger
Voigt, ed., Abschied vom Recht? Frankfurt: Suhrkamp.
102
Erd, R. .1977. "Verrechtlichte Gewerkschaftspolitik. Bedingungen ihrer Entwicklung und Veränderung", in Joachim
Bergmann, ed., Beiträge zur Soziologie der Gewerkschaften, Frankfurt: Edition Suhrkamp, pp. 143-82
Feige, E.L. .1980. "A new perspective on macroeconomic phenomena. The theory and measurement of the
unobserved sector of the United States economy: causes, consequences and implications" Paper presented to the
August 1980 meetings of the American Economics Association in Denver, Colorado
Fisher, Roger, William Ury and Bruce Patton. 1991. Getting to Yes. Negotiating Agreement Without Giving In. New
York: Penguin
Fox, Alan. 1974. Beyond Contract: Work, Power and Trust Relations. London: Faber.
Fraenkel, E. .1973. Reformismus und Pluralismus. Hamburg: Hoffmann und Campe
Fraenkel, Ernst. 1929. "Kollektive Demokratie." Die Gesellschaft, 6:8: 103-18
Frankenberg, Günter. 1989. "Down by Law," in Joerges and Trubek 1989.
Freeman, Richard B. 1985. "Why Are Unions Faring Poorly in NLRB Representation Elections?" in Kochan, Thomas
ed., Challenges and Choices Facing American Labor, Cambridge, Mass.: MIT Press.
Fricke, Werner, Karl Krahn, Gerd Peter. 1985 Arbeit und Technik als politische Gestaltungsaufgabe. Ein Gutachten
aus sozialwissenschaftlicher Sicht. [Der Senator für Bildung, Wissenschaft und Kunst der Freien Hansestadt Bremen
(Hg.)] Bonn: Verlag Neue Gesellschaft: Forschungsinstitut der Friedrich-Ebert-Stiftung
Friedman, Lawrence M., 1975. The Legal System: A Social Science Perspective. New York: Simon and Schuster
Friedman, Lawrence M. 1985. Total Justice. New York: Russell Sage
Fügen, N. 1985. Max Weber. Reinbek: Rowohlt
Funston, R.Y. .1977. Constitutional Counter-Revolution?, Cambridge, Mass.: Schenkmann Publishing Co.
Galanter, M. .1976. "Legalization and Delegalization" Mimeo., New York: American Political Science Association.
Gerth, Hans and C. Wright Mills. 1958. From Max Weber. New York: Oxford (Galaxy)
Gierke, O. .1868. Rechtsgeschichte der deutschen Genossenschaft. Bd. 1. '' 11-15, 19-23, 70. Berlin:
Weidmannsche Buchhandlung
Gierke, O. .1914. "Die Wurzeln des Dienstvertrages," Festschrift für Heinrich Brunner. München und Leipzig:
Duncker und Humblot
Glendon, Mary Ann. 1981. The New Family and the New Property. Toronto: Butterworth's.
Godard, John. 1990 "Managerial Interests and Union Power: A Theory and Analysis of Structural Variation in
Bargaining Outcomes Using Firm-Level Survey Data," Queen's Paper in Industrial Relations, 1990-5. Kingston,
Ontario: Industrial Relations Centre, Queen's University
Goldfield, Michael.1987. The Decline of Organized Labor in the United States. Chicago: University of Chicago Press.
Görlitz, Axel and Voigt, Rüdiger .1985. Rechtspolitologie, Opladen: Westdeutscher Verlag, 1985.
Gourevitch, Peter/ Lange, Peter/Martin, Andrew "Industrial Relations and Politics: Some Reflections," in Doeringer,
Peter Industrial Relations in International Perspective. New York: Holmes & Meier Publishers, Inc.
Gregg, P.A./ Machin, J.S. 1988. "Unions and the Incidence of Performance Linked Pay Schemes in Britain,"
International Journal of Industrial Organization 6: 91-107.
103
Grosheide, F.W. .1982. Eigendom in de Overgang?, Amsterdam
Habermas, Juergen. 1987. "Wie ist Legitimität durch Legalität möglich?.” Kritische Justiz 20.1:1-16
Habermas, Jürgen. 1992. Faktizität und Geltung. Beiträge zur Diskustheorie des Rechts und des demokratischen
Rechtsstaats. Frankfurt: Suhrkamp
Habermas, Jürgen. [1981] 1987. Theory of Communicative Action. Volume Two. Lifeworld and System: A Critique of
Functional Reason. Boston: Beacon Press
Habermas Juergen .1969. Legitimation Crisis, Boston:Beacon Press
Hart, Dieter. 1983 "Contract and Consumer Protection: Organizing Countervailing Power. On the development of
Substantive and Reflexive Elements in Modern Contract Law", in David Trubek, ed., Reflexive Law and the
Regulatory Crisis, Madison: Disputes Processing Research Program, University of Wisconsin Law School
Hartwich, Hans-Hermann 1967 Arbeitsmarkt, Verbände und Staat, 1918-33. Die öffentliche Bindung
unternehmerische Funktionen in der Weimarer Republik, Berlin: Walter de Gruyter & Co., 1967.
Hay, J.R. .1975. The Origins of the Liberal Welfare Reforms, 1906-1914, London and Basingstoke: The Macmillan
Press Ltd.
Hayek, Friedrich. 1960. The Constitution of Liberty. Chicago: University of Chicago
Hayek, Friedrich. 1973, 1976, 1979. Law, Legislation and Liberty. 3 vols. Chicago: University of Chicago Press.
Hayek, F.A. .1944. The Road to Serfdom, London: Routledge
Hecker, Steven and Margaret Hallock, eds., Labor in a Global Economy. Eugene: University of Oregon Labor
Education and Research Center
Hedemann, J.W. .1933. Die Flucht in die Generalklauseln. Eine Gefahr für Recht und Staat. Tübingen: J.C.B. Mohr
(Paul Siebeck)
Hedemann, J.W. .1934. "Zum Gesetz zur Ordnung der nationalen Arbeit," 39 Deutsche Juristen-Zeitung 3 (1.
Februar 1934)
Hedemann, J.W. .1949. Schuldrecht des Bürgerlichen Gesetzbuches. Berlin
Heindl, Hermann. 1928. [Editorial] Zeitschrift für Soziales Recht 1:1.
Horowitz, Morton J. 1992. The Transformation of American Law. new York and Oxford: Oxford
Hück, Alfred and H.C. Nipperdey .1928:1970. Lehrbuch des Arbeitsrechts. Mannheim
Hume, David. [1777] 1987. "Of the Rise and Progress of the Arts and Sciences," in Hume, Essays. Moral Political
and Literary. Indianapolis: Liberty Classics
Irons, Peter.1982. The New Deal Lawyers, Princeton: Princeton University Press
Jacoby, Sanford M. 1985 Employing Bureaucracy. Managers, Unions and the Transformations of Work in
American Industry, 1900-45, New York: Columbia University Press
Jaümig, O. et al. .1981. Bürgerliches Gesetzbuch. München
Jellineck, Georg. 1906 Verfassungsänderung und Verfassungswandlung, Berlin: Verlag von O. Häring
Joerges, Christian and David M. Trubek. eds., 1989. Critical Legal Thought: A German-American Debate.
Baden-Baden: Nomos
104
Joerges, Christian. 1987. "Die Überarbeitung des BGB-Schuldrechts, die Sonderprivatrechte und die Unbestimmtheit
des Rechts," Kritische Justiz, 20:2: 166-182
Joerges, Christian, "Regulatory Law. Private Government and Self-Government" in Conference on Regulatory Law
and the Regulatory Crisis, Disputes Processing Research Program, University of Wisconsin Law School, July 18-21,
1983 (Unpublished Compilation of Papers edited by David Trubek)
Jones, G. S. .1983. Languages of Class, 1832-1982, Cambridge: Cambridge University Press
Juristenwochenschau .1926. 55. Jg. Heft 28, 4 Dez
Kahn-Freund, O. .1932: 1981. "The Social Ideal of the Reich Labour Court," Labour Law and Politics in the Weimar
Republic, ed. by Roy Lewis and John Clark, Oxford: Oxford University Press
Kahn-Freund, O. .1981. Labour Law and Politics in the Weimar Republic. edited by Roy Lewis and Jon Clark.
Oxford: Blackwell
Kaiser, Andreas .1980. "Kollektives Arbeitsrecht und gewerkschaftlicher Funktionsverlust in der Weimarer
Republik," Demokratie und Recht, 8. Jg., Heft 4, 1980, 444-451
Kaiser, Andreas .1981. "Arbeitsrechtswissenschaft und Gewerkschaften gegen Ende der Weimarer Zeit", in Udo
Reifner, ed., Das Recht des Unrechtstaates, Frankfurt und NewYork: Campus Verlag
Kaskel, W. 1922 "Buecher-Kommentar", Recht und Wirtschaft 1:70
Kaskel, W. 1932 Arbeitsrecht, Fourth edition, ed. by Herman Dersch, Berlin: Verlag von Julius Springer
Kennedy, D. .1979. "The Structure of Blackstone's Commentaries," 28 Buffalo Law Review 205
Kennedy, D. .1980. "Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal
Thought in America, 1850-1940," 3 Research in Law and Sociology 3.
Kennedy, Duncan. 1976. "Form and Substance in Private Law Adjudication". Harvard Law Review, 89: 1685ff.
Kennedy, Duncan. 1979. "The Structure of Blackstone's Commentaries". Buffalo Law Review, 28:2: 211-382
Kennedy, Duncan. 1982. "Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to
Compulsory Terms and Unequal Bargaining Power" Maryland Law Review, 41:4:563ff
Kettler, David and Peter Warrian. 1994. "American and Canadian Labor Law Regimes and the Reflexive Law
Approach." Ralf Rogowski and Ton Wilthagen, eds., Reflexive Labour Law. Deventer and Cambridge: Kluwer, 1994
Kettler, David and Volker Meja. , 1988. "The Reconstitution of Political Life: The Contemporary Relevance of Karl
Mannheim's Political Project". Polity, 20:4:623-647
Kettler, David and Volker Meja. 1990 "Social Progress after the Age of Social Democracy: The End of Trade
Unionism in the West?" Jeffrey C. Alexander and Piotr Sztompka, eds., Rethinking Progress, London and New York:
Unwin Hyman
Kettler, David, James Struthers and Christopher Huxley. 1990. "Unionization and Labour Regimes in Canada and the
United States: Considerations for Comparative Research," Labour/Le Travail 25 (Spring, 1990), 161-187
Kettler, David. 1984 "Works Community and Workers' Organizations: A Central Problem in Weimar Labour Law,"
Economy and Society 13:3 (August)
Kettler, David. 1984a. "Sociological Classics and the Contemporary State of the Law," Canadian Journal of
Sociology, 9:447-458
Kettler, David. 1987. "Legal Reconstitution of the Welfare State: A Latent Social Democratic Legacy". Law & Society
Review, 21(1): 9-47
105
Kettler, David. 1989. "Figure and Ground in Collective Labor Regimes," in Axel Goerlitz and Ruediger Voigt, eds.,
Limits of Law, Pfaffenweiler: Centaurus.
Kettler, D. .1967. "Political Science and Political Rationality," in David Spitz, ed., Political Theory and Social Change,
New York
Kettler, D. .1969. "The Politics of Social Change: The Relevance of Democratic Approaches," in William E. Conolly,
ed., The Bias of Pluralism, New York
Kirchheimer, Otto .1964. Politik und Verfassung, Frankfurt: Suhrkamp
Klare, K. .1982. "Critical Theory and Labor Relations Law," in David Kairys, ed., The Politics of Law. New York
Klare, Karl E. 1978. "Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness,
1937-1941" Minnesota Law Review 62:265.
Klare, Karl E. 1985. ATraditional Labor Law Scholarship and the Crisis of Collective Bargaining Law: A Reply to
Professor Finkin.” Maryland Law Review. 44.3:731-840.
Klare, Karl E. 1989. "Workplace Democracy & Market Reconstruction: An Agenda for Legal Reform," Catholic
University Law Review, 38:1: 1-68
Klare, K. .1982. "Critical Theory and Labor Relations Law" in David Kairys, ed., The Politics of Law, New York:
Pantheon Books
Kochan, Thomas A./ Katz, Harry C./McKersie, Robert B. 1986. The Transformation of
American Industrial Relations, Boston: Beacon Press
Kochan, Thomas ed. .1985. Challenges and Choices Facing American Labor, Cambridge, Mass.: MIT Press
Korsch, Karl. 1972. "Jus belli ac pacis im Arbeitsrecht," Kritische Justiz 5. 2: 142ff.
Korsch, K. .1922:1980. "Der tote Sinzheimer und der lebende Marx," Gesamtausgabe: Raetebewegung und
Klassenkampf, Bd. 2, pp. 537-541, Frankfurt: Europäische Verlagsanstalt
Kreuder, Thomas. 1991 [Buchbesprechung] Joachim Weyand, Die tarifverträgliche Mitbestimmung
unternehmericher Personal- und Sachentscheidungen, Kritische Justiz, 24, 1, 117
Lasalle, Ferdinand. 1919. Die Verfassungsreden. in Eduard Bernstein, ed. Gesammelte Reden und Schriften. vol. 2.
Berlin: Dietz
Legien, Carl. 1914. Aus Amerikas Arbeiterbewegung. Berlin: Verlag der Generalkommission der Gewerkschaften
Deutschlands
Lehmbruch, G. and Schmitter, P.C., eds. .1981. Patterns of Corporatist Policy-Making, Beverly Hills and Lo ndon:
Sage Publications
Lenhoff, Arthur. 1951. "Some Basic Features of American and European Labor Law: A Comparison," Notre Dame
Lawyer 26 (Spring) 3: 389-428.
Lindblom, C. .1965. The Intelligence of Democracy, New York: The Free Press
Lindblom, C. .1977. Politics and Markets: The World's Political-Economic Systems, New York: Basic Books
Loewe, Adolph .1935. Economics and Sociology, London: George Allen & Unwin
Lorwin, Lewis L. 1924. The Women' Garment Workers. New York: B.W. Huebsch.
Lowi, Theodore S. .1987. "The Welfare State, the New Regulation, and the Rule of Law" in Allan C. Hutchinson and
Patrick Monahan, The Rule of Law: Ideal or Ideology? Toronto: Butterworths
106
Lowi, Theodore S. 1979. The End of Liberalism: The Second Republic of the United States. Second Edition, New
York: W.W. Norton & Co.
Luhmann, Niklas. 1981. Politische Theorie im Wohlfahrtsstaat. Munich and Vienna: Guenter Olzog Verlag
Luhmann, Niklas. 1984. Soziale Systeme. Grundrisse einer allgemeinen Theorie. Frankfurt: Suhrkamp.
Luhmann, Niklas. 1985. "Einige Probleme mit reflexivem Recht,” Zeitschrift für Gunther Rechtssoziologie (June) pp.
1-17.
Luhmann, Niklas. 1985. "The Self-Reproduction of Law and Its Limits,” in Gunther Teubner, ed., Dilemmas of Law in
the Welfare State. Berlin and New York, De Gruyter.
Luhmann, Niklas. 1990. Political Theory in the Welfare State. Berlin and New York: De Gruyter
Lukes, S.and Scull, A., .1983. Durkheim and the Law, Oxford: Martin Robertson
Luthardt, Wolfgang. 1983 "Kontinuität und Wandel in der Theorie Franz L. Neumanns," Internationale
wissenschaftliche Korrespondenz zur Geschichte der deutschen Arbeiterbewegung, (September) 329-373.
Luthardt, Wolfgang. 1986. Sozialdemokratische Verfassungstheorie in der Weimarer Republik. Opladen:
Westdeutscher Verlag.
Maier, C. .1975. Recasting Bourgeois Europe, Princeton: Princeton University Press
Mannheim, Karl. [1925] 1986. Conservatism. A Contribution to the Sociology of Knowledge. David Kettler, Volker
Meja, and Nico Stehr, eds. London and New York: Routledge & Kegan Paul.
Mannheim, K. .1940. Man and Society in an Age of Reconstruction, London: Kegan and Paul
Mansfeld, W./Pohl W. .1934. Die Ordnung der nationalen Arbeit. Berlin: Deutsches Druck- und Verlagshaus
Markovits, Andrei S. 1985 The Politics of the West German Trade Unions. Cambridge: Cambridge University Press
Marshall, T.H. .1949: 1965. "Citizenship and Social Class," in Class, Citizenship, and Social Development, New York
Martiny, M. .1976. Intetgration oder Konfrontation? Studien zur Geschichte der sozialdemokratischen Rechts- und
Verfassungspolitik. Bonn/Bad Godesberg: Neue Gesellschaft
Menger, Anton. 1886. Das Recht auf den vollen Arbeitsertrag in geschichtlicher Darstellung. Stuttgart: Cotta
Menger, Anton. [1903] 1927. Das bürgerliche Recht und die besitzlosen Klassen. Tübingen: Verlag der H.
Laupp'schen Buchhandlung.
Mestitz, Franz .1980. "Probleme der Geschichte des Arbeitsrechts", Zeitschrift für Neuere Rechtsgeschichte",
Volume no. 1/2, .
Mestitz, Franz .1984. "Zur Wirkungsgeschichte des Arbeitsrechts," in Harald Steindl, Wege zur
Arbeitsrechtsgeschichte, Frankfurt: Vittorio Klostermann
Miller, S. .1968. Die Bürde der Macht. Die deutsche Sozialdemokratie, 1918-1920. Düsseldorf: Droste
Mises, Ludwig von. 1949. Human Action. New Haven: Yale University Press.
Mishra, Ramesh .1984. The Welfare State in Crisis, New York: St. Martin's Press
Mitnick, Barry M. .1980. The Political Economy of Regulation, New York: Columbia University Press
Mommsen, Wolfgang. 1984. Max Weber and German Politics, 1890-1920. Chicago and London: University of
107
Chicago Press
Moore, Barrington. 1978. Injustice: The Social Bases of Obedience and Revolt. White Plains, New York: M.E.
Sharpe Inc.
Moritz, K. .1980. Begrenzung gewerkschaftlicher Politik durch Arbeitsrecht. in R. Voigt, Hg., Abschied vom Recht?.
Frankfurt: Suhrkamp.
Mückenberger, Ulrich 1991 "Neue Beschäftigungsformen, EG-Charta der Arbeitnehmerrechte und Ansätze
europäischer Normsetzung," Kritische Justiz, 24, 1, 1
Münch, Richard .1985. "Die sprachlose Systemtheorie. Systemdifferenzierung, reflexives Recht, reflexive
Selbststeuerung und Integration durch Indifferenz", Zeitschrift für Rechtssoziologie, (June, 1985) pp. 19-28
Muttutat, Hermann .1923. "Die Neugestaltung des Arbeitsrechts," Sozialistische Monatshefte, 29. Jg. Bd. 60, 406411
Nachlass Arnold Brecht Bundesarchiv Koblenz
Nedelsky, J. .1982. "American Constitutionalism and the Paradox of Private Property," Mimeo: Law and Society
Association, Toronto
Nedelsky, J. .1983. "Individual Autonomy in the Bureaucratic State: Toward a Reconception," Mimeo: American
Political Science Association, Chicago
Neumann, F. .1928. "Betriebsrisiko," 1 Arbeitsrechts-praxis, Heft 10
Neumann, F. .1929: 1981. "The Social Significance of the Basic Laws in the Weimar Constitution," 10 Economy and
Society 329
Neumann, F. .1929. "Richterliches Ermessen und Methodenstreit im Arbeitsrecht," 16 Arbeitsrecht 320
Neumann, F. .1932. Koalitionsfreiheit und Reichsverfassung. Die Stellung der Gewerkschaften im
Verfassungssystem. Berlin: Heymanns
Neumann, F. .1937. "Die Funktionswandel des Gesetzes im Recht der bürgerlichen Gesellschaft," 6 Zeitschrift für
Sozialforschung, 542
Neumann, F. .1944. Behemoth, Second Revised Edition, New York: Oxford
Neumann, F. .1957. The Democratic and the Authoritarian State. Glencoe: The Free Press
Neumann, F. .1980. Die Herrschaft des Gesetzes. Frankfurt: Suhrkamp
Neumann, F.L. .1930: 1981. "The Social Significance of the Basic Laws in the Weimar Constitution," Economy and
Society, 10:329
Neumann, F.L. .1937: 1957. "The Change in the Function of Law in Modern Society," The Democratic and the
Authoritarian State, Glencoe, Illinois: The Free Press
Nipperdey, Hans Carl, ed. .1930. Die Grundrechte und die Grundpflichten der Reichsverfassung, Berlin: Verlag
vonReinar Hobbing
Nonet, Phillippe and Selznick, Philip. 1978 Law and Society in Transition, New York, Hagerstown, San Francisco,
London: Harper Colophon Books
Nörpel, C./Gusko, K. .1932. Gewerkschaften und Kollektives Arbeitsrecht. Berlin: ADGB
Note .1975. "The Wyatt Case: Implementation of a Judicial Decree Ordering Institutional Change," Yale Law Review,
84:138
108
O'Grady, John. 1990a "Coming in from the Cold: Canadian Labour Market Policy in the 1990s," International
Business and Trade Law Program Conference on Global Competition and Canadian Federalism, Faculty of Law,
University of Toronto, September 15, 1990
O'Grady, John. 1990b "Labour Market Policy and Industrial Strategy after the Free Trade Agreement: The Policy
Debate in Ontario," Labor Law Journal, August
O'Grady, John. 1990c "Beyond the Wagner Act?" (Unpublished)
Offe, Claus. 1984. "Social Policy and the Theory of the State," Pp. 95ff. in Contradictions of the Welfare State, ed. by
John Keane, Cambridge, Mass.: MIT Press, .
Offe, Claus .1972. "Advanced Capitalism and the Welfare State," Politics and Society, 2:479-488 (Summer)
Offe, Claus .1985. Disorganized Capitalism, Cambridge: Polity Press
Ogorek, Regina 1989. "Inconsistencies in 19th Century Legal Theory," in Joerges and Trubek 1989, 13-37
Orloff, Ann Shola and Skocpol, Theda .1984. "Why Not Equal Protection? Explaining the Politics of Public Social
Spending in Britain, 1900-1911, and the United States, 1880's-1920", American Sociological Review, vol. 49
(December) pp.726-750
Panitch, Leo/Swartz, Donald. 1984. ATowards Permanent Exceptionalism: Coercion and Consent in Canadian
Industrial Relations," Labor/Le Travail 13: 133-157.
Panitch, Leo/Swartz, Donald. 1988. The Assault on Trade Union Freedoms: From Consent to Coercion Revisited,
Toronto: Garamond.
Peijpe, Taco van .1984. "Hugo Sinzheimer en het nederlandse arbeidsrecht", Recht en Kritiek, vol. 10, No. 1,
pp.7-32
Peijpe, Taco van .1985. De ontwikkeling van het loonvormingsrecht, Nijmegen: Ars Aequi Libri
Philipp, H. "Lohnanspruch bei Betriebsstockung und Teilstreik. Entwicklung von Individualrecht zu Sozialrecht", 13
Arbeitsrecht (Sonderheft: Durchsetzung des Kollektivgedankens)
Poggi, Gianfranco. 1978. The Development of the Modern State. A Sociological Introduction. London: Hutchinson.
Pope, Jim. 1993. "The Transformation of Labor Rights Consciousness." Paper presented to the 1993 Annual
Meeting of the Law and Society Association. Unpublished.
Porter, Michael E. 1990 The Competitive Advantage of Nations. New York: The Free Press.
Potthoff, H. .1925. Die sozialen Probleme des Betriebes. Berlin: Industrieverlag Spaeth & Linde
Potthoff, H. .1925a. Die Einwirkung der Reichsverfassung auf das Arbeitsrecht. Leipzig/Erlangen: A. Deichert
Potthoff, H. .1926. "Die Verselbständigung des Betriebes," 55 Juristische Wochenschrift 533, Heft 5
Potthoff, H. .1926b. "Rechtsfortschritt durch Rechtssprechung," 13 Arbeitsrecht (Sonderheft: Durchsetzung des
Kollektivgedankens.) 106
Potthoff, H. .1926c. "Sozialismus, Gewerkschaften, Arbeitsrecht," 13 Arbeitsrecht 833
Preller, L. .1949. Sozialpolitik in der Weimarer Republik. Stuttgart: Mittelbach
Preller, Ludwig .1949. Sozialpolitik in der Weimarer Republik, Stuttgart: Franz Mittelbach Verlag
Preuss, Ulrich K. .1973. Legalität und Pluralismus. Beiträge zum Verfassungsrecht der Bundesrepublik Deutschland,
109
Frankfurt: Suhrkamp
Preuss, Ulrich K. .1983. "The Concept of Rights in the Welfare State" in Conference on Regulatory Law and the
Regulatory Crisis (1983) Disputes Processing Research Program, University of Wisconsin Law School, July 18-21,
1983 (Unpublished Compilation of Papers edited by David Trubek)
Priore, Michael and Charles F. Sable. 1984 The Second Industrial Divide: Possibilities for Prosperity. New York:
Basic Books
Pryor, F.L. .1968. Public Expenditure in Communist and Capitalist Nations
Radbruch, G. .1930. "Arbeitskraft," in Hans-Carl Nipperdey, ed., Die Grundrechte und die Grundpflichten in der
Reichsverfassung, vol. 3, Berlin: Verlag von Rainer Hobbing
Raiser, L. .1971: 1977. "Die Zukunft des Privatrechts," in Die Aufgabe des Privatrechts. Aufsaetze zum Privat- und
Wirtschaftsrecht aus drei Jahrzenten, Kronberg/ Ts.
Ramm, T. .1966. Arbeitsrecht und Politik. Neuwied: Luchterhand
Ramm, T. .1980. "Die Arbeitsverfassung der Weimarer Republik," in Franz Gamillscheg, et al., In Memoriam Sir Otto
Kahn- Freund. München.
Ratz, Ursula. 1980. Sozialreform und Arbeiterschaft. Berlin: Colloquium Verlag
Regini, Marino. 1984. "The Conditions for Political Exchange: How Concertation Emerged and Collapsed in Italy and
Great Britain,” Pp. 124-144 in Goldthorpe, John H. ed., Order and Conflict in Contemporary Capitalism: Studies in the
Political Economy of Western European Nations. Oxford: Clarendon Press.
Reich, Robert B. 1991 The Work of Nations: Capitalism in the 21st Century. New York: A.A. Knopf
Reich, C. .1964. "The New Property," Yale Law Journal, 73:733
Reichsgerichts Zeitung .1923. Reichsgerichtsrechtsprechung, 6. Februar 1923 106, 272.
Renner, Karl [1905, 1929] 1949. The Institutions of Private Law and their Social Functions, transl. and ed. by Otto
Kahn-Freund, London: Routledge and Kegan Paul
Renner, K. .1929. Wege der Verwirklichung, Berlin: Verlag von J.H.W. Dietz Nfg.
RGR Komm. zum BGB .1953.
Rogers, Joel .1984. Divide and Conquer: The Legal Foundations of Postwar U.S. Labor Policy, Unpublished
Dissertation, Princeton University
Rogowski, Ralf and Ton Wilthagen. 1994. Reflexive Labour Law. Deventer and Cambridge: Kluwer.
Ronge, V. .1983. "Rechtsetzung durch Tarifvertrag? Zur Koexistenz von staatlichem und nichtstaatlichem Recht," in
R. Voigt, Hg., Abschied vom Recht?. Frankfurt: Suhrkamp.
Ronge, V. .1980. Am Staat vorbei, Frankfurt/New York: Campus Verlag
Rottleuthner, Huber. 1986. "Theories of Legal Evolution: Between Empiricism and Philosophy of History,”
Rechtstheorie Beiheft 9.
Rottleuthner, Hubert. 1987 "Biological Metaphors in Legal Thought" in Gunther Teubner, ed., State, Law, Economy
as Autopoietic Systems, Berlin: DeGruyter
Samuel, G. .1983. "Public and Private Law: A Private Lawyer's Response," The Modern Law Review, 46:58
Savelsberg, Joachim. 1992. "Law That Does Not Fit Society: Sentencing Guidelines as a Neoclassical Reaction to
110
the Dilemmas of Substantivized Law," American Journal of Sociology, 97: 5 (March 1992): 1346-81
Schmitt, Carl .1928. Verfassungslehre, Munich and Leipzig: Duncker & Humblot
Schmitter, Philippe C. 1983. "Democratic Theory and Neo-Corporatist Practice," Social Research 50 (Winter)
885-928.
Schmitter, P.C. and Lehmbruch, G., eds. .1979. Trends Towards Corporatist Intermediation, New York and London:
Sage Publications
Schuchardt, Wilgart. 1985a "Innovatorische Handlungspotentiale abhängig Beschäftigter zur Veränderung und
Gestaltung ihrer Arbeitsbedingungen gemäß ihren Zielen und Interessen -- ein Problemüberblick," Werner
Fricke/Wilgart Schuchardt (Hrsg.) Innovatorische Qualifikationen, eine Chance gewerkschaftlicher Arbeitspolitik:
Erfahrungen aus den Niederlanden, Italien, Schweden und der Bundesrepublik. Bonn: Verlag Neue Gesellschaft:
Forschungsinstitut der Friedrich-Ebert-Stiftung
Schuchardt, Wilgart. 1985b "Technisch-organisatorischer Wandel. Beteiligung der Arbeitnehmer und
gewerkschaftliche Arbeitspolitik. Notwendigkeit, Möglichkeit und Perspektiven für die Entwicklung und Anwendung
innovatorischer Qualifikationen." Werner Fricke/Wilgart Schuchardt (Hrsg.) Innovatorische Qualifikationen, eine
Chance gewerkschaftlicher Arbeitspolitik: Erfahrungen aus den Niederlanden, Italien, Schweden und der
Bundesrepublik. Bonn: Verlag Neue Gesellschaft: Forschungsinstitut der Friedrich-Ebert-Stiftung
Schumpeter, Joseph A. .1947. Capitalism, Socialism, and Democracy, 2nd ed. New York: Harper & Brothers
Seibel, W. .1980. "Abschied vom Recht -- eine Ideologie?," in Rüdiger Voigt, ed., Verrechtlichung,
Koenigstein:Athenäum
Selznick, Philip. 1969 Law, Society, and Industrial Justice, New York: Russell Sage Foundation
Selznick, P. .1949. TVA and the Grass Roots, Berkeley: University of California Press
Shklar, Judith N. 1987. "Political Theory and the Rule of Law," in Allan C. Hutchinson and Patrick Monahan, eds., The
Rule of Law. Ideal or Ideology. Toronto, Calgary, and Vancouver: Carswell
Shklar, Judith N. 1990. The Faces of Injustice. New Haven and London: Yale University Press
Shklar, Judith N. [1964] 1986. Legalism. Laws, Morals, and Political Trials. Cambridge MA and London: Harvard
University Press.
Simitis, Spiros. 1984. "Zur Verrechtlichung der Arbeitsbeziehungen," Pp. 74-165 in Friedlich Kübler, ed.,
Verrechtlichung von Wirtschaft, Arbeit und Sozialer Solidarität. Vergleichende Analysen, Baden-Baden: Nomos
Verlagsgesellschaft.
Simitis, S. .1957. Die faktischen Vertragsverhältnisse als Ausdruck der gewandelten sozialen Funktion der
Rechtsinstitute des Privatrechts, Frankfurt: Vittorio Klostermann
Sinzheimer, H. .1907/8. Der korporative Arbeitsnormenvertrag. Eine privatrechtliche Untersuchung. 2 Bänder.
Leipzig: Duncker & Humblot
Sinzheimer, H. .1916. Ein Arbeitstarifgesetz. Die Idee der sozialen Selbstbestimmung im Recht. München und
Leipzig: Duncker & Humblot
Sinzheimer, H. .1919. Das Rätesystem. Frankfurt
Sinzheimer, H. .1920. "Programm für die Neuregelung des Arbeitsrechts in Deutschland,""Reichskanzlei Akten
betreffend Einheitliches Arbeitsrecht (Arbeitsgerichtsgesetz)", Bundesarchiv Koblenz, R43 I/ 2062-2063.
Sinzheimer, H. .1927. Grundzüge des Arbeitsrechts. 2. verbesserte Auflage. Jena: Gustav Fischer Verlag
Sinzheimer, H. .1929. "Zur Frage des Betriebsrisikos nach der arbeitsgerichtlichen Rechtssprechung," Schriften der
111
VELA, Vereinigung der leitenden Angestellten. Heft 5, Berlin
Sinzheimer, H. .1935. Rechtssociologie. Amsterdam
Sinzheimer, H. .1938. Jüdische Klassiker der deutschen Rechtswissenschaft. Amsterdam: Hertzberger
Sinzheimer, H. .1968. Die Justiz in der Weimarer Republik. Thilo Ramm, Hg. Neuwied/Berlin: Luchterhand
Sinzheimer, H. .1978. Arbeitsrecht und Soziologie. 2 Bänder. Otto Kahn-Freund, Hg. Frankfurt/Köln: Europäische
Verlagsanstalt
Sinzheimer, Hugo. 1929 "Die Reform des Schlichtungswesens", Bericht über die Verhandlungen der 11.
Generalversammlung der Gesellschaft für soziale Reform, Mannheim, October 24 and 25, 1929
112
Sinzheimer, Hugo. [1919] 1976 "Die Räte," Arbeitsrecht und Rechtssoziologie. Gesammelte Aufsätze und
Reden. 2 vols., Otto Kahn-Freud and Thilo Ramm, eds. Frankfurt: Europäische Verlagsanstalt
Sinzheimer, Hugo. [1933] 1976 "Die Krisis des Arbeitsrechts" in Arbeitsrecht und Rechtssoziologie, 2 vols.,
Otto Kahn-Freund and Thilo Ramm, eds. Frankfurt: Europäische Verlagsanstalt
Sinzheimer, H. .1923. "Das neue Arbeitsrecht in Deutschland", Die Internationale Gewerkschaftsbewegung,
Vol. 1, No. 3 (January/February, pp. 12-20
Sklar, Martin J. 1988. The Corporate Reconstruction of American Capitalism, 1890-1916. Cambridge: CUP
Skocpol, Theda. 1979. States and Social Revolutions, Cambridge: Cambridge University Press.
Skocpol, Theda. 1980. "Political Responses to the Capitalist Crisis: Neo-Marxist Theories of the State and
the Case of the New Deal," Politics and Society 10:2
Skrzypczak, Henryk .1975. "Zur Strategie der Freien Gewerkschaften in der Weimarer Republik," in Heinz
Oskar Vetter, ed., Vom Sozialistengesetz zur Mitbestimmung. Köln.
Special Project .1978. "The Remedial Process in Institutional Reform Litigation," Columbia Law Review,
78:788
Streeck, Wolfgang. 1981 Gewerkschaftliche Organisationsprobleme in sozialstaatlichen Demokratien.
Königstein/Ts.: Athenäum Verlag
Streek, Wolfgang/Schmitter, Philippe 1985. "Community, Market, State -- and Associations?” in W. Streek
and P.C. Schmitter, eds., Private Interest Government: Beyond Market and State. Beverly Hills and London:
Sage.
Streek, Wolfgang and Schmitter, Philippe C. .1985. Private Interest Government, London, Beverly Hills,
New Delhi: Sage Publications
Sugarman, David and Gunther Teubner, eds. 1990 Regulating Corporate Groups in Europe. BadenBaden: Nomos Verlaggesellschaft (European University Institute, Firenze)
Swinton, Katherine E./ Swan, Kenneth P. 1982b."The Interaction between Human Rights Legislation and
Labor Law." Pp. 112-142 in Swan/Swinton 1982
Tatarin-Tarnheyden, Edgar .1930. "Artikel 165. Recht der Berufsverbände und Wirtschaftsdemokratie," in
Hans Carl Nipperdey, Die Grundrechte und Grundpflichte in der Verfassung 3. Bd.
Taylor, Charles. 1985. "Alternative Futures. Legitimacy, Identity and Alienation in Late Twentieth Century
Canada" in: Constitutionalism, Citizenship and Society in Canada. Vol. 33 of the Research Studies Prepared
for the Royal Commission on the Economic Union and Development Prospects for Canada. Toronto:
University of Toronto.
Teubner, G. .1982. "Reflexives Recht," 68 Archiv für Rechts- und Sozialphilosophie 13
Teubner, Gunther. 1987, "Juridification. Concepts, Aspects, Limits, Solutions," in Gunther Teubner, ed.,
Juridification of Social Spheres. Berlin: DeGruyter.
Teubner, Gunther and Helmuth Willke. 1984. "Kontext und Autonomie: Gesellschaftliche Selbststeuerung
durch reflexives Recht", Zeitschrift für Rechtssoziologie, 6 Heft 1, 4-35
Teubner, Gunther ed. 1985. Dilemmas of Law in the Welfare State, Berlin and New York: Walter de Gruyter
Teubner, Gunther, ed. 1988c, Autopoietic Law: A New Approach to Law and Society, Berlin:
DeGruytTeubner, Gunther. 1982/3. "Substantive and Reflexive Elements in Modern Law," Law and Society
Review 17: 401f.
Teubner, Gunther. 1986 "Industrial Democracy Through Law? Social Functions of Law in Institutional
Innovation", Terence Daintith and Gunther Teubner, eds., Contract and Organisation. Legal Analysis in the
113
Light of Economic and Social Theory, Berlin and New York: DeGruyter, 261-273
Teubner, Gunther. 1986. "After Instrumentalism?" in Gunther Teubner, ed., Dilemmas of Law in the Welfare
State. Berlin and New York: Walter de Gruyter.
Teubner, Gunther. 1987 "Juridification. Concepts, Aspects, Limits, Solutions," in Gunther Teubner, ed.,
Juridification of Social Spheres. A Comparative Analysis in the Areas of Labor, Corporate, Antitrust, and
Social Welfare Law. Berlin: DeGruyter
Teubner, Gunther. 1988a "Evolution of Autopoietic Law," in Gunther Teubner, ed., Autopoietic Law: A New
Approach to Law and Society, Berlin: DeGruyter
Teubner, Gunther. 1988b "Hypercycle in Law and Organization: The Relationship between SelfObservation, Self-Constitution and Autopoiesis," European Yearbook in the Sociology of Law, 3
Teubner, Gunther. 1988b. "Social Order from Legislative Noise? Autopoietic Closure as a Problem for
Legal Regulation" in Gunther Teubner, ed., State, Law, Economy as Autopoietic Systems. Berlin: De
Gruyter.
Teubner, Gunther. 1988c. "Enterprise Corporatism, New Industrial Policy and the 'Essence' of the Legal
Person," The American Journal of Comparative Law 36: 401
Teubner, Gunther. 1989. Recht als autopoietisches System. Frankfurt: Suhrkamp
Teubner, Gunther. 1989a "How the Law Thinks: Towards a Constructivist Epistemology of Law," Law &
Society Review, 23, 5
Teubner, Gunther. 1989b "'And God Laughed...: Indeterminacy, Self-Reference and Paradox in Law," in
Christian Joerges, ed., Critical Legal Thought. An American-German Debate. Baden-Baden: Nomos,
Teubner, Gunther. 1990 "Unitas Multiplex: Corporate Governance in Group Enterprises." David Sugarman
and Gunther Teubner, eds., Regulating Corporate Groups in Europe. Baden-Baden: Nomos
Verlaggesellschaft (European University Institute, Firenze) 104
Teubner, G. .1984. "Verrechtlichung -- Begriffe, Merkmale, Grenzen, Auswege," in Friedrich Kuebler (Hrsg.)
Verrechtlichung von Wirtschaft, Arbeit und Sozialer Solidaritaet, Baden-Baden: Nomos, 1984, pp. 289-344
Teubner, G. .1984a. "Corporate Fiduciary Duties and their Beneficiaries: A Functional Approach to the
Legal Institutionalization of Corporate Responsibility" in Klaus J. Hopt and Gunther Teubner, Corporate
Governance and Directors' Liabilities: Legal, Economic and Sociological Analyses of Corporate
Responsibility, Berlin, New York: Walter de Gruyter, 1984
Teubner, Gunther and Willke, Helmuth .1980. "Dezentrale Kontextsteuerung im Recht intermediärer
Verbände," in Voigt, ed., Verrechtlichung, Koenigstein: Athenäum Verlag
Tomlins, Christopher L. 1985 The State and the Unions. Labor Relations, Law, and the Organized Labor
Movement in America, 1880-1960. Cambridge: Cambridge University Press
Towers, Brian 1989. "Running the Gauntlet: British Trade Unions under Thatcher, 1979-1988," Industrial and
Labor Relations Review 42:2 (January) 163-188, at 179f.
Trattner, Walter I., ed. .1983. Social Welfare or Social Control?, Knoxville: The University of Tennessee
Press
Tribe, Lawrence H. .1979. "Too Much Law, Too Little Justice:An Argument for Delegalizing America", The
Atlantic, July 10, 1979, p. 25
Tronto, Joan. 1984. "Law and Modernity: The Significance of Max Weber's Sociology of Law". Texas Law
Review, 63:3:565-577
Troy, Leo L. and L. Sheflin. 1985 Union Sourcebook: Membership, Structure, Finance, Directory. West
Orange: IRDIS
114
Troy, Leo. 1986. "The Rise and Fall of American Trade Unions: The Labor Movement from FRD to RR,” Pp.
75-109 in Lipset, Seymour Martin ed., Unions in Transition: Entering the Second Century, San Francisco:
Institute for Contemporary Studies.
Troy, Leo. 1990 "Is the U.S. Unique in the Decline of Private Sector Unionism?" Journal of Labor
Research, Volume XI, No. 1 (Spring) 111-143
Trubek, David. ed. 1983. Reflexive Law and the Regulatory Crisis. Unpublished papers of a conference at
the University of Wisconsin-Madison, July 18-21, 1983. Madison: Disputes Processing Research Program,
University of Wisconsin Law School
Tushnet, Mark V. 1983. "Following the Rules Laid Down: A Critique of Interpretivism and Neutral
Principles," Harvard Law Review, 96:4:781-827
U.S. Commission on Industrial Relations. 1916. Industrial Relations. Final Report and Testimony submitted
to Congress by the Commission on Industrial Relations created by the Act of August 23, 1912. 64th
Congress, 1st Session, Senate Document No. 415, II: "A.F. of L., Socialists, and Industrial Workers" and XI:
"Labor and the Law"
Unger, Roberto Mangabeira. 1976. Law in Modern Society. New York: The Free Press
Unger, Roberto Mangabeira. 1983. "The Critical Legal Studies Movement," Harvard Law Review, 96:3:
563-675.
United States Bureau of Labor Statistics 1989. Employment and Earnings 36 (No. 1, January).
United Steel Workers of America: Basic Steel Industry Conference. 1988 Economics of the Steel Industry
under the Reagan Administration (mimeo)
Vardaro, Gaetano. 1990 "Before and Beyond the Legal Person: Group Enterprises, Trade Unions and
Industrial Relations." David Sugarman and Gunther Teubner, eds., Regulating Corporate Groups in Europe.
Baden-Baden: Nomos Verlagsgesellschaft (European University Institute, Firenze) 217-251
Verma, Anil. 1991 "Restructuring in Industrial Relations and the Role for Labor," Steven Hecker and
Margaret Hallock, eds., Labor in a Global Economy. Eugene: University of Oregon Labor Education and
Research Center
Vieux, Steve 1988. "Containing the Clas Struggle: Skocpol on Revolution," Studies in Political Economy 27:
87-111.
Voigt, R. .1980. Verrechtlichung Königstein/Ts: Athenæum
Voigt, R. .1983. Abschied vom Recht? Frankfurt: Suhrkamp
Voigt, Rüdiger. 1980. "Verrechtlichung in Staat und Gesellschaft" in Voigt, ed., Verrechtlichung. Königstein:
Athenaeum
Voigt, Rüdiger. 1989. Limits of Legal Regulation - Grenzen rechtlicher Steuerung. Pfaffenheimer: Centaurus
Verlag
Voigt, R. .1983. "Verrechtlichung und Entrechtlichung: Entwicklungslinien Regulativen Rechts im
Wohlfahrtsstaat," in Voigt, ed., Abschied vom Recht?, Frankfurt: Suhrkamp
Voigt, R., ed. .1986. Limitations of Law. An Interdisciplinary Symposium, Discussion Papers, No. 65/85
Center for Studies on Changing Norms and Mobility, Siegen University
Vormbaum, T. .1977. Sozialdemokratie und Zivilrecht. Berichterstattung und Kritik der
sozialdemokratischen Partei und Presse während der Entstehung des bürgerlichen Gesetzbuches.
Berlin/New York: De Gruyter
Wagner, Gerhard and Heinz Zipprian. 1989. "Wertfreiheit. Eine Studie zu Max Webers
115
kulturwissenschaftlichem Formalismus," Zeitschrift für Soziologie, 18:1:4-15
Weber, Max. 1902. Review of the first volume of Philipp Lotmar, Der Arbeitsvertrag. Nach dem Privatrecht
des Deutschen Reiches. Archiv für Sozialwissenschaft und Sozialpolitik, 17:723-734
Weber, Max. 1923. Gesammelte Aufsätze zur Religionssoziologie. Das Antike Judentum. Tübingen: J.C.B.
Mohr (Paul Siebeck)
Weber, Max. 1968. Economy and Society. An Outline of Interpretive Sociology. Edited by Guenther Roth
and Claus Wittich. New York: Bedminster Press
Weber, Max. 1976. Wirtschaft und Gesellschaft. Grundriss der verstehenden Soziologie. Fifth Revised
edition. Edited by Johannes Winckelmann. Tübingen: J.C.B. Mohr (Paul Siebeck)
Weber, Max. 1978. Economy and Society. edited by Gunther Roth and Claus Wittich, Berkeley and Los
Angeles, California: University of California Press.
Wedderburn, Lewis, Roy, and Clark, J. .1983. Labour Law and Industrial Relations: Building on
Kahn-Freund, Oxford:
Weiler, Joseph. 1986."The Role of Law in Labor Relations" Pp.1-65 in Labor Law and Urban Law in Canada,
volume 51 of the Research Studies prepared for the Royal Commission on the Economic Union and
Development Prospects for Canada, University of Toronto Press, .
Weiler, Paul. 1983 "Promises to Keep: Securing Workers' Rights to Self-Organization Under the NLRA,"
Harvard Law Review, 98, 2, 1796
Weiler, Paul. 1984 "Striking a New Balance: Freedom of Contract and Prospects for Union
Representation," Harvard Law Review, 98, 2, 351.
Weiler, Paul. 1988 The Transformation of the Law at Work. Cambridge: Harvard University Press
Weinstein, James. 1969. The Corporate Ideal in the Liberal State, 1900-1918. Boston: Beacon Press.
White, Morton. 1949. Social Thought in America: The Revolt against Formalism. New York: VikingWhite,
Robert. 1984 "Report of UAW Director for Canada and International Vice President Robert White,"
(December 1 and 2) Unpublished
Wilensky, Harold L. .1975. The Welfare State and Equality: Structural and Ideological Roots of Public
Expenditures, Berkeley, Los Angeles, London: University of California Press
Williams, C.B. 1964. "Notes on the Evolution of Compulsory Conciliation in Canada," Relations Industrielles
19
Willke, Helmuth.1983. Entzauberung des Staates. Koenigstein: Athenaeum.
Wilson, J. Q., ed. .1980. The Politics of Regulation, New York: Basic Books
Wissell, R. .1983. Aus meinen Lebensjahren. Ernst Schräpler, Hg. Berlin: Colloquium
Wrobel, H. .1982. "Der deutsche Richterbund im Jahre 1933," 15 Kritische Justiz 323.
116