A NOTE ON STATUS AND CONTRACT IN BRITISH LABOUR LAW
| Author | O. Kahn‐Freund |
| Date | 01 November 1967 |
| DOI | http://doi.org/10.1111/j.1468-2230.1967.tb02799.x |
| Published date | 01 November 1967 |
A NOTE
ON
STATUS
AND
CONTRACT
IN
BRITISH LABOUR LAW
THE labour law of Great Britain shares with that of the other
nations in our orbit of civilisation two essential jurisprudential
features
:
it is based
on
the contractual foundation of the obligation
to work and of the obligation to pay wages, and
it
is at the same
time permeated by a tendency
to
formulate and to enforce an ever-
growing number of imperative norms for the protection
of
the
worker, norms which the parties to the contract cannot validly set
aside to the detriment of the economically weaker party. This
dual insistence
on
agreement as the legal basis of at least some of
the essential rights and obligations and
on
mandatory regulation
as the source of the content of the relationship has given rise to a
jurisprudential dilemma which has
so
far not been clearly faced
in the literature
on
the subject.
The dilemma arises from the ambiguity of the term
“
status
”
in general jurisprudence. Contemporary writers are fond of reiter-
ating that, under the impact of modern developments, Western
society is moving from
‘‘
contract
”
to
‘‘
status.” This observation
which has been repeated almost mechanically
on
countless occasions
is intended to signify that our society and our law have taken a
course in a direction opposite to that traced more than a century
ago by Sir Henry
Sumner
Maine,’ whose celebrated dictum about
the displacement of
‘‘
status
”
by
‘‘
contract
”
is often quoted,
but seldom in
full.
Not infrequently one can sense in the state-
ment that the tendency diagnosed by Maine has been reversed,
a conscious
or
unconscious condemnation of a retrograde evolution.
Did not Maine
link
his
famous remark with the analysis of what he
called
“
progressive societies
”?
Does not the movement,
or
rather
the alleged movement, from
“
contract
”
to
“
status
”
constitute
a
“
regression,”‘ a regression from the
‘<
liberal,”
“
progressive
”
environment of the nineteenth century to more primitive forms of
social organisation such as those described by Maine in his work
?
The clarification of the
“
status
”
concept in analytical jurispru-
dence is more than a
jeu
d’esprit.
Underlying the
quid
pro
quo
*
Except for minor alterations,
this
is
in substance
a
reprint of
a
contribution
to
Hedendaags Arbeidsrecht,
a
volume published
in
1965
in
honour
of
Prof. M.
G.
Levenbach. Thanks are due
to
the publishers
of
the volume,
Messrs. N. Sansom N.V.. Alphen aan den
Rijn,
Netherlands, for granting
the necessary permission.
In
the
1927
reprint
of
the edition of the work
by
Sir Frederick Pollock which
I
am
using the relevant passage
is
at
p.
174.
For a
very
illuminating analysis
of
Maine’s dictum
see
Graveson, Status
in
the
Comm
Law
(1953),
esp. Chap.
III.
1
Maine,
Ancient
Law,
Chap. V. The first edition
was
published
in
1861.
685
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