Menschenbild: The Conception of the Employee as a Person in Western Law

62 Pages Posted: 18 Feb 2004

See all articles by Matthew Finkin

Matthew Finkin

University of Illinois College of Law

Abstract

Even as the civil and common law reflect the Western Legal Tradition, they take very different approaches to employee privacy; the former respectful of it, the latter largely not. This divide is explored using Germany and the United States for comparative examination. Relying on a body of German legal historiography, the roots of the law's conception of the person (Menschenbild) is traced from the sixteenth century Natural Law thought, to the Prussian and Austrian Codes of the eighteenth century on through the economic liberalism of the nineteenth century, and so to today. It explains how German law in the period after World War II joined an eighteenth century idea of the person as a bearer of innate, inalienable rights with the idea of the workplace as a social setting in which these rights must be legally recognized. It explains how the United States cabined that very same eighteenth century concept to the political realm, and, in the employment setting, even today remains largely wedded to the nineteenth century conception of the person as the bearer of only the singular right to contract, i.e. tacitly to concede to the employer managerial power to invade the employees' privacy as a component of the wage bargain.

Suggested Citation

Finkin, Matthew W., Menschenbild: The Conception of the Employee as a Person in Western Law. Comparative Labor Law & Policy Journal, Vol. 23, No. 4, pp. 577-638, Winter 2002 (Published October 2003). Available at SSRN: https://ssrn.com/abstract=503451

Matthew W. Finkin (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States

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