Menschenbild: The Conception of the Employee as a Person in Western Law
62 Pages Posted: 18 Feb 2004
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.
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