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The Four Elements of Law

Published online by Cambridge University Press:  16 January 2009

Folke Schmidt
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Extract

Two years ago I was invited to join a conference of law students from the Nordic countries and to discuss with them the law of labour relations. There were many radical socialists among the members of the conference. One after another young angry men attacked the present state of law in the Nordic countries as the law of the ruling classes. The collective agreement was not, as I had been used to see it, a bargain between two independent parties but a means of oppression. Not seldom the officers of the national union were in collusion with management and the rest of the establishment. In the debate I answered that their views were too narrow because there were at least the following four elements of law: (1) the law of survival, (2) the law of toleration, (3) the laws of the ruling classes, and (4) laws based upon agreements. Their laws represented only one of these four elements. Today I am going to try to develop this general theme.

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Articles
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The Cambridge Law Journal , Volume 33 , Issue 2 , November 1974 , pp. 246 - 259
Copyright
Copyright © Cambridge Law Journal and Contributors 1974

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References

2 Åqvist, Gösta, Frieden und Eidschwur, Studien zum mittelalterlichen germanischen Recht, Lund 1968.Google Scholar

3 The Västgöta-lag. See Åqvist, op. cit., p. 153.

4 Åqvist, op. cit., p. 366.

5 Holdsworth, , A History of English Law, vol. 4, p. 391.Google Scholar Holdsworth relies essentially upon a study by Leonard, E. M., The Early History of English Poor Relief, 1900.Google Scholar See Leonard, pp. 11 et seq.

6 5 Eliz. c. 4.

7 Leonard, The Early History of English Poor Relief, p. 65.

8 A. O. Winroth, Om tjensteförhållandet enligt svensk rätt, 1879, pp. 46 et seq. and 89 in particular.

9 The Statute of Labourers (tjänstehjonsstadgan) of 1664, sec. 1, and the Renewed Statute of Labourers (förnyad tjänstehjonsstadga) 1739, secs. 1 and 3.

10 1 Wm. & Mary c. 18.

11 For the history of freedom and religion in Sweden, see Waller, Sture, “Religionsfrihetsfrågan i Sverige”, in 1958 års utredning kyrka—stat III, SOU 1964: 13, pp. 7Google Scholaret seq.

12 The Commissioners' Report, pp. xvii and xviii.

13 Op. cit., p. xxi.

14 Statute of Labourers, 1562, s. 4.

15 A provision to that effect appears for the first time in the Statute of Labourers of 1723; it was repeated in later statutes. The last Statute of Labourers was enacted in 1834.

16 Cf. Blackstone, Commentaries on the Laws of England, Book I, ch. 15.

17 Thus the doctrine of inducement of breach of contract seems to have its roots in earlier statutory prohibitions against the hiring of a person who was in the service of another person. See Crompton J. in Lumley v. Gye, 2 El. & Bl. 216 (1853). It has been extended even to commercial contracts.

18 Cf. with regard to English law, Halsbury's Laws of England, 3rd ed., vol. 25, sees. 923–926, and particularly what is said in sec. 925 on weekly remuneration as destroying the presumption of a hiring for a year. The presumption was rebutted finally in Richardson v. Koefod [1969]Google Scholar 3 All E.R. 1264.

19 In Sweden there is only one Labour Court. The Court has jurisdiction principally in disputes concerning the interpretation of collective agreements including violations of the peace obligation laid down in the Act on Collective Agreements of 1928. The Court is composed of its president, its vice-president and an expert on labour relations together with two representatives of employers' associations and two trade union men.

20 Industrial Relations Act 1971, ss. 22 and 23.

21 Illum, Knud, Den kolleklive Arbejdsret, 2nd ed. 1951, p. 12.Google Scholar See, for the text of the September Compromise, pp. 378 et seq.

22 Beretning fra Faellesudvalget af. 17. August 1908 angaaende Arbejdsstridigheder, 1910, p. 4.Google Scholar

23 See Schmidt, Folke, The Law of Labour Relations in Sweden, 1962, p. 181.Google Scholar