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17 - Blackstone, Kahn-Freund, and the Contract of Employment

from BLACKSTONE, FEUDALISM, AND INSTITUTIONAL WRITINGS

Published online by Cambridge University Press:  25 October 2017

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Summary

In 1977 the late Sir Otto Kahn-Freund published the text of his important 1977 Blackstone Lecture delivered in the University of Oxford with the title: “Blackstone's neglected child: the contract of employment”. In it, Kahn- Freund writes that “[a]nyone handling Blackstone's great work for the first time and looking for what he has to say about employment, would, I think, do what I did … and turn to his chapter on Contracts”. Kahn- Freund notes that, though there is mention of a “contract of service or employment … we are told next to nothing about the mutual obligations to which it gives rise”. He comments that there are allusions to public offices in the third book on the Law of Private Wrongs, before stating:

And now, somewhat incredulously at first, we detect in the First Book, in the Law of Persons, wedged between chapters on the Army and Navy and Husband and Wife, one which bears the title “Of Master and Servant.” However did this get into the Law of Persons, and this at the critical point where the public law, that is the constitutional law, discussion ends, and the private law, that is the family law, discussion begins?

He then points out that, at the beginning of the chapter (XIV) on Master and Servant, Blackstone explains that he is moving from rights and duties arising from public relations to those of persons in “private oeconomical relations”. The relation of master and servant is described by Blackstone as “founded in convenience, whereby a man is directed to call in the assistance of others, where his own skill and labour will not be sufficient to answer the cares incumbent upon him”. The two other “great relations in private life” are those of husband and wife “founded in nature, but modified by civil society”, and of parent and child “consequential to that of marriage, being it's [sic] principal end and design”. Blackstone adds that “the law” provided a fourth relation “of guardian and ward, which is a kind of artificial parentage, in order to supply the deficiency, whenever it happens, of the natural”. Kahn- Freund focuses on the phrase “to call in the assistance” and asks “[w]hy, on what basis, is a person liable to answer this call, to enter into the service of another?”.

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Law, Lawyers, and Humanism
Selected Essays on the History of Scots Law, Volume 1
, pp. 482 - 497
Publisher: Edinburgh University Press
Print publication year: 2015

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