Sinzheimer’s contribution to Labour Law and Sociology of Law: A Concise Evaluation

 

Labour law

 

Sinzheimer noticed the contradiction between private law theories of freedom of contract and equal legal capacity and the realities of domination in the workplace and was one of the first to develop a theory of (the regulation of) dependent labour. Workers are subordinated to the control of the owners of the means of production, and labour law is there to compensate for this one-sidedness, to protect workers and allow for the realisation of their humanity. Sinzheimer built upon ideas from (a.o.) Karl Marx (‘labour has no other container than human flesh and blood’),[i] his teacher Otto von Gierke (i.p. on dependency), Eugen Ehrlich (sociological methods),[ii] Karl Renner (property as domination over human beings),[iii] and the Webbs (industrial democracy).[iv]

According to Fraenkel, Sinzheimer’s basic problem was how the world of labour could be legally regulated without surrendering it to either an almighty state or, by leaving it free, to the power of private capital?[v] His answer implied a criticism of the Marxist idea that the workers’ conquest of the state would end their oppression. Labour law’s principal way of counter-balancing both powers would be to guarantee autonomous law creation by organized collectivities of employers and workers. Substantive freedom could be realized by workers as a collective freedom. This autonomy would be exercised within, and be guaranteed by a legal framework offered by the national state. It required overcoming the traditional rigid distinction made between ‘private’ and ‘public’ law, the inadequacy of which had been already demonstrated by the rise of the collective agreement in ‘social reality’.[vi]

Sinzheimer’s trust in the role of the nation state has met with criticism, both from contemporary Marxists (who rather welcomed a dying-out of the state) and by later commentators pointing to the transformation of the state in Germany in the 1930’s. When the state was no longer the ‘friendly giant’ of the Weimar Republic, the unresolved contradiction between the ultimate power of intervention of the state, and its normal subsidiarity to autonomous regulation was revealed painfully.[vii] The ‘solution’ that Sinzheimer supported, that of compulsory arbitration, turned out to be disastrous to the autonomy that he advocated. In fact, in assigning this role to the state Sinzheimer had implicitly trusted in a continuation of a social-democratic type of state,[viii] and of economic circumstances of almost full employment.

Sinzheimer was one of the first to argue that the study of the rules regarding ‘dependent labour’ were to be the object of a relatively separate branch of law, ‘labour law’. He advocated a ‘unified’ labour law that would also cover formerly separated categories like white-collar or civil service employees.[ix] He substantiated these ideas by both publishing a systematic introduction (1921, rev.ed. 1927) and setting up a scientific journal of the name (Arbeitsrecht). His ideas, although only published in German language, have reached far beyond the German borders and, for instance, exerted an important influence on labour law in Japan.[x]

Collective labour law

Sinzheimer’s work on collective agreements, completed by his 1916 book Ein Arbeitstarifgesetz, has laid the foundations of a legal order of self-regulation in labour relations. Due to his active political involvement, the idea of self-regulation, that ‘the state refrains from giving detailed norms itself, and contends itself with providing the formal arrangements in which participants can themselves create and govern their norms’[xi], has become part of the Constitution and legislation of the Weimar Republic.  The state is charged with the duty to create the legal framework as well as the practical conditions within which participants can exercise their fundamental rights of collective self-regulation. Within the boundaries set by state law, their rules would have the validity of law. Sinzheimer’s important contribution has been to give a legal foundation tot the collective agreement’s force of law as legitimated by recognizing the freely organized social forces (Tarifautonomie). His contribution has set the standard for international collective labour law.[xii]

Sinzheimer introduced the threefold classification of the legal functions of collective agreements: the normative, the obligatory (binding the contracting organisations), and the organisational (the duty of compliance of individual workers/employers by virtue of their membership in the contracting organisations).

All this is a matter of pluralism, of functional decentralisation rather than neo-corporatism. In the 1930’s the national-socialist regime nullified this system of self-regulation. Sinzheimer’s pupil Franz Neumann has argued, already in 1937, that the Weimar conception of the factory as a ‘production community’ has inadvertently contributed to the Nazi conception of workers as loyal followers of a production leader. After WW II the concept of self-regulation has been revived and confirmed in legislation, partly in the German Constitution, partly in German labour law, and has had an important influence on systems of collective labour law in other European countries.

Works councils

The introduction of works councils has at first, in the worrying post-WW I economic circumstances in Germany, been backed up by their alleged contribution to an increase of productivity. Sinzheimer primarily valued their capacity to provisionally restrict the contradiction between capital and labour.[xiii] At the same time he saw participation of workers in the management of companies as a step towards industrial democracy. The proposed system hardly took off during the Weimar Republic, but after WW II his concepts became the basis of numerous works councils systems in industrial countries. They have clearly influenced the legal-socialist ideas of Georges Gurvitch in France.

Integration of sociological and legal methods

Legal scientists, Sinzheimer argued, ought to look beyond the texts of rules and decisions, at the actual legal arrangements forged in practice (‘real’ law). Inspired by the pioneering work of Philipp Lotmar[xiv], Sinzheimer advocated the use of sociological methods, next to (not: instead of) dogmatic methods in private law (and practised them in his 1916 book). ‘The abstract rules of law are just the conceptual expression of living facts, and find their destination in their application to these living facts.’[xv] That the actual relevance of collective agreements had not even been noticed by private law theory, brought him to this attempt at stirring up a discipline that, in his view, had withdrawn into itself and lost contact with ‘legal reality’, at a moment when new ideas cry out for a legal design that allows for their realization.

There has always been a close relation between Sinzheimer’s methodological stance and his focus on legal policies. His pupil Ernst Fraenkel characterized him as a ‘real homo politicus’[xvi], and we may rank his order of the importance of goals as follows: (1) political and social change, to be realized by (2) a legal policy on labour relations, i.p. by collective labour law, which required (3) a scientific theory of labour law, dynamized by including sociological methods (allowing for observation of trends in legal reality), to which (4) a philosophy of the human position in society should give a firm theoretical ground. The ultimate purpose of jurisprudence, Sinzheimer argued, is legal policy;[xvii] while a positivistic legal method is essential in understanding positive law, it is incapable to develop new law; to the latter a sociological method is indispensable.[xviii] In Kahn-Freund’s evaluation, “the ‘constructive’ legal policy element formed an inherent part of his definition of labour law as an academic discipline. (…) The fundamental and lasting influence that Sinzheimer has exerted on the development of law in Germany and Europe can only be explained by his unique combination of labour law, the sociological method and legislative politics.”[xix]

As a part of this enterprise, Sinzheimer has laid the foundations of an approach to ‘legal reality’ that was to become common to all sociology of law, and he did so already four years before Renner’s Rechtssoziologie appeared (1913).[xx] ‘By showing the gap between legal reality and the way it has been expressed in norms, sociology of law activates the powers to bring legal reality and values closer together.’[xxi] Kettler & Tackney (1997) credit Sinzheimer with a measure of social realism that brought him “close to an understanding of law as a dimension of social practice shot through with conflicting value commitments.”

He teached his pupils – Franz Neumann, Otto Kahn-Freund, Hans Morgenthal, Ernst Fraenkel a.o. – ‘what at that time could be learned nowhere else in Germany: to regard law as a factor and product of a social process, embedded in social forces but elevated by the ethos of universal justice’ (Fraenkel).[xxii]

Dialectical conception of labour law

He developed this conception of the relation between legal reality and labour law further into a dialectical one, in which labour law not just expressed existing relations but also intervened, and thus changed them. These interventions could not be arbitrary, but had to be based upon careful observation (by sociological methods) of existing tendencies in labour relations. His evolutionary premisses suggested to him that these tendencies could be observed ‘objectively’ and, in a next step, connected with legal values and thus legally institutionalized. In his early work Sinzheimer has neglected problems of ‘objective’ selection of envaluating tendencies that today appear as more obvious.[xxiii] Later, his position is close to that of his contemporary Max Weber: choices of value are necessarily implied and they have to be judged also by their consequences.[xxiv]

Such an ‘objective’ connection between empirical observation and normativity, viewed by Sinzheimer as a question of ‘transforming’ given developments into the right legal form, has been rejected by most later sociologists, but an echo of it can be heard in the notion of ‘envaluation’ in the work of Philip Selznick who, in arguing for a normative sociology, be it from a different theoretical background, comes in several respects remarkably close to Sinzheimer’s stance.[xxv]

Horizontal’ effects of fundamental rights

The constitutional guarantee of the freedom of coalition (art. 59 WRV), Sinzheimer argued in the Nationalversammlung (21-07-1919), has effects not only against the state, but also against ‘the social powers’, it is a ‘social basic right’.[xxvi] The idea of a broader function of basic rights, has since been adopted in jurisprudence on a varied range of basic rights.

Finally: a forerunner on fake

In the chronicles he wrote for the periodical Die Justiz, Sinzheimer warned against systematic misinformation, in particular from Russian sources.[xxvii] In order to prevent it from stirring up international conflicts at a time when peaceful relations are actually gaining ground, ‘to prevent a European war that would mean the ruination of Europe’, he wrote in 1929, we should make the population vigilant, make them familiar with the probability that most of the information from these sources is probably forged.

 

Notes

The publications referred to in the notes are listed completely in either the Secondary or Biographical literature.

[i] He preferred the ‘young Marx’of the Deutsche Ideologie and consistently tried to demonstrate the independent role of ideas in the formation of social reality. See Sinzheimer (1937).  [return]

[ii] Eugen Ehrlich, Grundlegung der Soziologie des Rechts (1913), translated as Fundamental Principles of the Sociology of Law. New York, 1962.  [return]

[iii] Karl Renner, Die Rechtsinstitute des Privatrechts und ihre soziale Funktion (1904/1929), translated by A. Schwarzschild: The Institutions of Private Law and their Social Functions, ed. by O. Kahn-Freund. London 1949. [return]

[iv] Dukes (2014): 19.  [return]

[v] Ernst Fraenkel, ‘Gedächtnisrede’, Mitteilungen der Akademie der Arbeit, Neue Folge 13, Frankfurt a/M 1958, p. 25. [return]

[vi] Lewis & Clark 1981: 38. [return]

[vii] Lewis & Clark 1981: 41. [return]

[viii] Dukes (2014): 29. [return]

[ix] Sinzheimer 1927h. [return]

[x] Kubo 1995; Kettler & Tackney 1997. [return]

[xi] Sinzheimer 1977a: 192-3. [return]

[xii] Knorre (1991): 246. [return]

[xiii] Knorre (1991): 185, 193. [return]

[xiv] Philipp Lotmar, Die Tarifverträge zwischen Arbeitgebern und Arbeitnehmern, Brauns Archiv für soziale Gesetzgebung und Statistik, Band 15 (1900); idem, Der Arbeitsvertrag nach dem Privatrecht des Deutschen Reiches, Band 1 (1902), Band 2 (1908). Sinzheimer evaluated Lotmar’s  contribution in Sinzheimer 1922i. [return]

[xv] Sinzheimer, ‘Die soziologische Methode in der Privatrechtswissenschaft‘ (1909), in: Arbeitsrecht und Rechtssoziologie, Band 2, p. 4 (translation RK) [return]

[xvi] Ernst Fraenkel, cited by Knorre (1991): 2. [return]

[xvii] Its calling is, as that of all science, “to create not only a picture of existing reality but also to convey a knowledge to serve as a foundation of deeds (Fichte).”(Sinzheimer 1917e: 130) (translation by Kettler & Tackney 1997, in note 20). [return]

[xviii] Sinzheimer 1909c.  [return]

[xix] Otto Kahn-Freund, ‘Hugo Sinzheimer 1875-1945‘, in: Lewis & Clark (1981): 73-107 (101, 74). [return]

[xx] Though he did partly develop his convictions upon Renner’s Die soziale Funktion der Rechtsinstitute (1904). [return]

[xxi] Sinzheimer 1935c. See also the German translation in: Arbeitsrecht und Rechtssoziologie, Band 2, p. 93. [return]

[xxii] Fraenkel in Juristen Zeitung 1958, p. 459. [return]

[xxiii] Knorre (1991): 76-77. [return]

[xxiv] Knorre (1991): 90. [return]

[xxv] In all of it but in particular in: Philip Selznick, Philippe Nonet & Howard M. Vollmer (1969), Law, Society, and Industrial Justice. New York: Transaction Books. See also; Robert A. Kagan, Martin Krygier & Kenneth Winston (eds) (2002), Legality and Community: On the Intellectual Legacy of Philip Selznick. Lanham: Rowman & Littlefield. Although Selznick himself mainly pays tribute to American pragmatism, his stance in matters of social science and its having an impact on reality for the good is in many respects so akin to Sinzheimer’s that one might imagine him as a pupil of his. Actually, Selznick nowhere refers to Sinzheimer but we know that he has worked in close company with one of his pupils, emigrated to the US: Franz Neumann, and does regularly refer to another one: Otto Kahn-Freund. [return]

[xxvi] Cited by Kempen 2017: 69. [return]

[xxvii] Sinzheimer 1929g (reprint: p. 644-46). [return]