Max Weber on the Labour Contract: Between Realism and Formal Legal Thought
| Published date | 01 December 2009 |
| DOI | http://doi.org/10.1111/j.1467-6478.2009.00483.x |
| Author | Michel Coutu |
| Date | 01 December 2009 |
JOURNAL OF LAW AND SOCIETY
VOLUME 36, NUMBER 4, DECEMBER 2009
ISSN: 0263-323X, pp. 558±78
Max Weber on the Labour Contract:
Between Realism and Formal Legal Thought
Michel Coutu*
Although Max Weber's review essay of the first part of Philipp Lotmar's
The Labour Contract may appear peripheral to his overall contribution
to legal sociology, it contains important insights on the relationship of
law to economics, the utility of sociological empirical research for
jurisprudence, the epistemological gap between `legal dogmatics' and
the sociology of law, and the fundamental distinction between state and
non-state law in properly understanding the developmental logic of
labour law.
In the review, far from appearing as a rigid partisan of positivistic
legal formalism, Weber admits of a kind of `legal pluralism' as a
necessary path to the sociology of law, and allows some measure of
realism, when celebrating Lotmar's analysis of the social facts of law as
a precondition for proper juristic treatment of the labour contract.
Nevertheless, Weber remained distrustful of legal realism which, for him,
was founded on an epistemological confusion between `is' and `ought'.
INTRODUCTION
Philipp Lotmar's
1
major work, Der Arbeitsvertrag (The Labour Contract),
initially appeared in two volumes in 1902 and 1908 and has recently been
558
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*E
Âcole de relations industrielles (School of Industrial Relations), Universite
Â
de Montre
Âal, Montre
Âal, Que
Âbec H3C 3J7, Canada
michel.coutu@umontreal.ca
This paper first appeared, for the most part, in French in (2009) 24 Revue canadienne
Droit et Socie
Âte
Â/Canadian Journal of Law and Society under the title: `La naissance du
contrat de travail comme concept scientifique: Max Weber et Hugo Sinzheimer critiques
de Philippe Lotmar'. Thanks to Emma Stringfellow (Industrial Relations Research Unit,
Warwick) for translating this paper and to Pierre Bosset (DeÂpartement des sciences
juridiques, UniversiteÂduQueÂbec aÁ MontreÂal) for further suggestions.
1 Philipp Lotmar (1850±1922) was born in Frankfurt. A lawyer trained in Roman law,
he studied and then taught general contract law. It was relatively late in his career that
he focused his interest on employment law (1900±1908). Unable to obtain a
republished in one volume at the initiative of Manfred Rehbinder.
2
Most
interestingly, Max Weber released an insightful and scholarly review of the
first volume at the time of its publication.
3
According to Marianne Weber, it was on the insistence of the Archiv fu
Èr
soziale Gesetzgebung und Statistik that Max Weber began reading and
reviewing the work of Lotmar on the labour contract in the autumn of 1902.
According to Marianne, this task did not particularly please her husband
given its purely juridical character; furthermore, the assignment was far
removed from Weber's sociological preoccupations, even though it provided
him with the happy occasion to test his recovered working capacities after a
long interruption due to sickness.
4
However, we may doubt Marianne's
affirmation about Weber's lack of interest in Lotmar, for two reasons:
(a)
First of all, Lotmar had often referred to the studies on agricultural
workers in the Ostelbien territories
5
that Weber had carried out at the invitation
of the Verein fu
Èr Sozialpolitik (The Association for Social Policy).
6
In view of
its in-depth analysis of data from economics and the sociology of labour,
Lotmar's treatise was far from being only of interest to lawyers; furthermore,
Weber's attraction to the sociology of labour and industrial relations would be
confirmed over several years, culminating in 1908±1909, again at the invitation
of the Verein fu
Èr Sozialpolitik,inavast empirical study on the condition of
workers in large industries.
7
Weber could not but have a fundamental interest
in the work of Lotmar, especially in the way his own studies were used there.
559
satisfactory academic position in Germany (the fact that he was Jewish and a member
of the Social Democratic Party (SPD) did not help his career), he finally went into
exile in Switzerland, later becoming Rector of the University of Bern.
2P.Lotmar, Der Arbeitsvertrag (2001/1941).
3M.Weber, `Rezension von: Philipp Lotmar, Der Arbeitsvertrag' in Wirtschaft, Staat
und Sozialpolitik: Schriften und Reden 1900±1912 (Economy, State and Social Policy:
Writings and Speeches 1900±1912), eds. P. Kurth and B. Morgenbrod (1984) 37±61.
4 See Marianne Weber, Max Weber. Ein Lebensbild (Max Weber, A Biography) (1984)
272. See, also, on this subject: `Editorischer Bericht' (Editorial Note), in Kurth and
Morgenbrod, id., p. 35.
5 See, also, M. Weber, `Entwicklungstend enzen in der Lage der os telbischen
Landarbeiter' (Developmental Tendencies in the Situation of the Ostelbien Workers)
in Gesammelte Aufsa
Ètze zur Sozial- und Wirtschaftsgeschichte (1988) 470±507. On
the analysis developed by Weber, see W. Mommsen, Max Weber and German
Politics, 1890±1920, tr. M. Streinberg (1984) 22 ff.
6 The Association for Social Policy, founded in 1873 and which still exists today, was
run by the economist Gustav Schmoller, the principal representative of the German
Historical School of economics, from 1890 to 1917. It significantly influenced
German socio-economic policy in the Wilhelmian period. On the role of Max Weber
within the Verein, see D. Kru
Èger, `Max Weber and the Younger Generation in the
Verein fu
Èr Sozialpolitik' in Max Weber and his Contemporaries, eds. W.J. Mommsen
and J. Osterhammel (1988) 71±87.
7 See, notably, M. Weber, `Zur Psychophysik der industriellen Arbeit (1908±09)' (On
the Psychophysic of Industrial Work) in Weber, op. cit., n. 5, pp. 61±255. On this
subject see, also, the presentation by JoaquõÂn AbellaÂn of the Spanish translation of this
study (M. Weber, Sociologõ
Âa del trabajo industrial (1994) 9±21).
ß2009 The Author. Journal Compilation ß2009 Cardiff University Law School
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