The Scandinavian legal system@Scandinavian Legal System@(BE)@freigabe

Introduction

In the Scandinavian countries, namely Denmark, Norway, Sweden, Iceland, and Finland, the development of law, particularly since the early modern period, took a distinct path compared to the rest of Europe. This led to the formation of a separate body of law known as Scandinavian or Nordic law.¹ While it does not represent a uniform legal system, it refers to the legal traditions of the Scandinavian countries, which share fundamental principles and exhibit significant similarities in their concrete legal structures. The fluidity of borders between Denmark, Norway, and Sweden played a significant role in facilitating this development. Certain Swedish provinces, such as Skåne (southern Sweden), had originally been part of Norway or Denmark. Finland was under Swedish rule from 1248 to 1809 before becoming an autonomous region of Russia, until it finally gained independence in 1917. Iceland was under Norwegian rule until 1380 and subsequently came under Danish control. Moreover, these countries were connected through alternating personal unions: Denmark and Norway were united with Iceland from 1380 to 1814, Norway and Sweden from 1814 to 1905, and between 1397 and 1523, all Scandinavian states were connected through the Kalmar Union.

Legal order and jurisprudence

The legal system of medieval Scandinavia was shaped by the customary laws of individual provinces, rooted in Germanic traditions, as well as the rights granted to towns. Similar to other regions in Europe such as Germany, northern France, and England, the legal system of medieval Scandinavia also followed the dichotomy of land law and town law.² At legal assemblies known as "Things," which held the authority to establish laws (both through specific judgments and general statements of customary law), regional laws were recorded in law books by individuals known as "speakers of the law."³ This process began as early as 1050 in Norway, with the creation of the Gulatings law for Western Norway and the Frostatings law for Trondheim, at the suggestion of the king. Similarly, alongside the creation of the Skåne law book (Skånske Lov) around 1210, other significant legal documents emerged, including the laws of Västergötland (around 1220/1225) and the laws of Östergötland (around 1300), among others. Some of these law books were regularly supplemented and updated until as late 1500, such as the law book of Skåne. In the subsequent development, legislative acts in the Scandinavian kingdoms typically enforced one of the territorial laws as a uniform law. In 1274, for example, King Magnus VI Håkonsson of Norway (1238–1280), also known as Lagaboter or "improver of the law," introduced a uniform territorial law that consolidated the decisions made by four regional Things, drawing heavily from the Gulatings law mentioned above. The Jydske Lov (law of Jutland) was enacted as the general law in Denmark in 1241. Sweden (including Finland) saw the passing of the General Territorial Law Act in 1347, along with the General Town Law Act introduced by King Magnus Erikson (1316–1374) specifically for municipalities. Legal historical research on the Scandinavian legal sources of the Middle Ages has found that the preservation of the "Germanic legal character" was more pronounced in these sources compared to contemporaneous German ones.⁴

During the early modern period, similar to the German territories, the Scandinavian countries also witnessed a wave of legislative acts aimed at regulating as much of the law of the land as possible, resembling the German territorial law codes ("Landesordnungen"). The Scandinavian monarchies, which consisted of multiple countries, likewise implemented uniform laws across their territories. As a result, in 1685 the Danske Lov and in 1687 the Norske Lov were established in Denmark and Norway, respectively, as both countries were united under a personal union and had nearly identical legal matter. In Sweden, legal unity was achieved with the introduction of the Swedish Imperial Law (Sveriges Rikes Lag)⁵ in 1734. As with the German territorial law codes and the General State Laws for the Prussian States (Allgemeines Landrecht für die Preußischen Staaten, ALR) of 1794, these laws encompassed both private and public law. For instance, the Danske Lov and Norske Lov were divided into the following six parts, or "books": Judicial and Procedural Law, Canon Law, Estates and Family Law, Maritime Law, Property and Inheritance Law, and Criminal Law. These modern law codes drew extensively from their medieval predecessors, preserving domestic law to a greater extent than similar bodies of law in other parts of Europe.

Canon law in the Scandinavian countries played a similar role to that in Germany, serving as the legal realm for ecclesiastical courts. It primarily governed marriage law and had an influence on inheritance law by regulating the validity of testamentary dispositions in the Scandinavian countries. In the 16th century, the Reformation led to a diminished significance of canon law in all Scandinavian countries, similar to the Protestant territories of Germany.

The Scandinavian development distinguishes itself from the continental European development due to the relatively late and limited influence of Roman or common law.⁶ Roman law was taught only in basic outlines at the universities, such as Uppsala from 1477 and Copenhagen from 1479, primarily based on the textbook of Justinian I (482–565), the Institutions. This practice in Scandinavia was somewhat similar to the teaching approach in German monastery and cathedral schools, but with the additional consideration of domestic law in the classroom. It was maintained to the extent that, for instance, the Jydske Lov of 1241 was annotated around 1470, ensuring its continued applicability. Even during the 16th century, the influence of domestic law in Scandinavia surpassed that of Roman or common law, which was never regarded as authoritative. This contrasted with the situation in Central Europe, where Roman law enjoyed widespread reception. Furthermore, the Scandinavian countries, similar to France, were not part of the Roman-German Empire, which meant that Roman-Common law could not serve as the foundation for imperial law in this context. In contrast, as legislators the Scandinavian monarchs, like certain German rulers in the Early Modern period, focused on creating their own laws rather than adopting foreign legal systems. It was not until around 1650 that the new Swedish supreme courts started to selectively supplement the incomplete codes with common law. They drew inspiration from the Ius Romano-Germanicum as the lawyers had primarily received their education at German universities. The common Protestant religion and the fact that the kings of Denmark and Sweden held titles as imperial princes, such as the former as Duke of Holstein and the latter as Duke of Pomerania, further strengthened the connection with Germany. This resulted, among other things, in legal careers that fostered connections between the Scandinavian countries and Germany. For example, the later Graz regimental councilor Nikolaus Beckmann (1634–1689)[] had previously been a professor in Lund, and the Dutchman Hugo Grotius (1583–1645)[] and the Saxon Samuel von Pufendorf (1632–1694)[] were active in Stockholm. These intermediaries facilitated lasting contacts with Continental Europe, which in the 19th century resulted in a significant influence of German jurisprudence, particularly in the areas of systematization and terminology, with pandectics playing a formative role. In this environment, an independent Scandinavian jurisprudence emerged, spearheaded by Danish jurist Anders Sandøe Ørsted (1778–1860)[].

The absence of codifications, which emerged in Continental Europe around 1800, also had a significant formative impact. In Sweden, although a printed draft for a civil code was available in 1826, the legislative authorities were content with enacting individual laws, and thus there was no strong impetus for modernization. This heightened the significance of jurisprudence, as it assumed the role of renewal in the absence of corresponding legislation. With the codes of 1685/1687 in Denmark-Norway and 1734 in Sweden quickly becoming obsolete, and the absence of subsequent codes to this day, the courts played a pivotal role in the ongoing development of law. While rooted in these codes, the courts effectively modified and supplemented them through expansive interpretation, diverse analogies, and nullifying obsolete provisions.

Another notable feature of the Scandinavian legal sphere is the harmonization of laws among the associated states. This was facilitated by the introduction of laws that gradually aligned after 1900 across the Scandinavian states, such as the Nordic Purchase Act implemented between 1905 and 1922, and the Contract Act enacted between 1915 and 1929. These commonalities were brought about and consolidated not only through mutual perceptions in legislation but also in jurisprudence.

Independence and peculiarities

The essence of the Scandinavian legal system includes the early and repeated consolidation of domestic law through legislative acts based on customary law, as well as agreements that sometimes transcended individual national borders. Moreover, the countries of the Scandinavian legal system remained largely unaffected by jurisprudence and common law for an extended period, even in modern times. A second characteristic is the persistence of the law codes from the 17th and 18th centuries, as in Scandinavia, the courts took on the task of further developing the law around 1750, while in Central Europe, the legislature initiated law renewal through codifications. Therefore, the third characteristic is the significant role played by case law. Provisions of the old codes in Scandinavia remained applicable only in connection with the rulings issued based on them. Court practice figures more prominently in Scandinavian law compared to Central Europe, making it a form of case law. Although case law in Scandinavian law may bear some resemblance to common law, the similarity is only superficial. In Scandinavia, unlike in common law systems, there has always been a binding adherence to laws, without a reliance on binding precedent (stare decisis) or the extensive development of general rules through judicial decisions. Case law does not operate as an independent source of law as it does in common law, but rather serves as an additional authority that modifies existing laws and fills in gaps where necessary. Furthermore, individual laws are interpreted as reflections of new legal concepts, and these concepts are often generalized, potentially leading to deviations from previous court practices. Finally, a fourth characteristic of the Scandinavian legal system is the significant role played by jurisprudence, which, emerging around 1800, interacted with the already established legal practices and gained influence through them. The role of jurisprudence, therefore, is to provide case law with the methodology for applying the law. It developed a pluralistic doctrine of legal sources, according to which legislation, practice, jurisprudence, and preparatory legislative materials, such as motive reports, all contribute to the formation of law.

Examples of special features of the Scandinavian legal system

In constitutional law, the pluralism of legal sources has resulted in the interpretation of the word "king" in the current constitution of Norway (1814) to refer to the government, reflecting the transition from a constitutional monarchy to a parliamentary monarchy during the 19th century.⁷Regarding private law,⁸ its doctrinal framework demonstrates minimal influence from common law or canon law. Marriage law maintained an older perspective that remained unaffected by canon law for an extended period. Given the central importance of formal engagement in the marriage process, which entailed a fidelity obligation and a solemn commitment to marriage, the act of witnessing the process alone was deemed sufficient to establish the consummation of the marriage. This practice persisted when, towards the end of the 16th century, royal laws mandated the presence of a Protestant state church priest and five witnesses during the engagement ceremony. However, towards the end of the 17th century, the religious marriage ceremony became mandatory, and it could be enforced based on the engagement. For instance, if one of the betrothed individuals had entered into a marriage with another person, it was to be annulled. The situation in this regard resembled that of the Protestant regions of Germany. There was also the possibility of divorce, which was expanded through royal decrees in specific cases, particularly during the 18th century, and also resulted in the recognition of divorce by mutual agreement. In the first half of the 19th century, "Notzivilehen" (emergency civil marriages, mainly for non-evangelical marriages) became prevalent, as did "Fakultativehen" from the early 20th century onwards. These "optional" marriages could be solemnized before a priest of the state church, a representative of a recognized religious organization, or a civil official.

Matrimonial property law evolved to include a distinctive form of community property in case of death. During the course of the marriage, there existed a separation of property, albeit with certain limitations: The sale of real estate necessitated the consent of the spouse, and, in principle, the assets could not be diminished to his or her detriment. Upon the death of a spouse, the assets were effectively merged into a community property and divided between the surviving spouse and the heirs of the deceased. However, the inclusion of a reserved property agreement in favour of a spouse, which granted him or her exclusive control over certain assets, could override the aforementioned effects. In the law of succession, the medieval practice of appointing an executor by the testator continued to exist. The executor was typically entrusted with the responsibility of managing and distributing the estate.

As for rights to land, Scandinavian legal traditions were influenced by continental European concepts, including the distinction between ownership and limited rights in rem such as easements and mortgages. Nevertheless, the specific details and scope of these rights were not solely determined by statutory law, but also by contractual agreements and, in some cases, judicial discretion on a case-by-case basis. Indeed, the strict typological constraints of continental European rights were loosened, allowing for alternative arrangements in co-ownership through agreements. One such arrangement is quota ownership with an agreed special right of use, which bears similarities to central European condominium ownership. Real property is designated for specific types of use, such as "residential" properties intended for year-round occupancy or "summer homes" (vacation homes) which have non-year-round use requirements.

Wilhelm Brauneder

Appendix

Sources

Tamm, Ditlev et al. (eds.): Quellen zur dänischen Rechts- und Verfassungsgeschichte (12.–20. Jahrhundert), Frankfurt am Main et al. 2008 (Rechtshistorische Reihe 363).

Literature

Andenæs, Tönnes (ed.): Die Verfassung Norwegens, Oslo 1964.

Björne, Lars: Nordische Rechtssysteme, Ebelsbach am Main 1987.

Brauneder, Wilhelm: Europäische Privatrechtsgeschichte, Wien 2014, pp. 97–101. URL: https://www.utb.de/doi/abs/10.36198/9783838534879-98-103 [2023-12-01].

Coing, Helmut (ed.): Handbuch der Quellen und Literatur der neueren europäischen Privatrechtsgeschichte, München 1987, vol. III, subvolume 4: Die nordischen Länder.

Korkisch, Friedrich: Einführung in das Privatrecht der nordischen Länder, Darmstadt 1977, vol. 1.

Merzbacher, Friedrich: Art. "Nordisches Recht," in: Handwörterbuch zur Deutschen Rechtsgeschichte 3 (1984), col. 1032–1038.

Schlosser, Hans: Grundzüge der Neueren Privatrechtsgeschichte: Rechtsentwicklungen im europäischen Kontext, 10th ed., Heidelberg 2005.

Strauch, Dieter: Art. "Magnus Hákonarssons (Lagabœtir) Landrecht und Stadtrecht," in: Reallexikon der Germanischen Altertumskunde 19 (2001), pp. 153–160.

Strauch, Dieter: Art. "The Ostgötenrecht," in: Handwörterbuch zur Deutschen Rechtsgeschichte 3 (1984), col. 1362–1367.

Strauch, Dieter: Art. "Schonen, Landrecht (Kirchenrecht, Stadtrecht)," in: Handwörterbuch zur Deutschen Rechtsgeschichte 4 (1990), col. 1481–1484.

Strauch, Dieter: Art. "Westgötenrecht (Westgötalagh)," in: Handwörterbuch zur Deutschen Rechtsgeschichte 5 (1995), col. 1313–1317.

Strauch, Dieter: Das schwedische Reichsgesetzbuch von 1734: Quellen, Aufbau und Inhalt des Gesetzbuches, in: Ius Commune, Sonderheft 29 (1986), pp. 61–106. URL: http://nbn-resolving.de/urn:nbn:de:hbz:38-74431 [2023-12-01]

Notes

1. ^{^} The following throughout: Brauneder, Privatrechtsgeschichte 2014; Merzbacher, Recht 1984; Coing, Handbuch 1987; Schlosser, Grundzüge 2005; Tamm, Quellen 2008.
2. ^{^} Strauch, Landrecht 2001.
3. ^{^} Strauch, Schonen 1990; Strauch, Ostgötenrecht 1984; Strauch, Westgötenrecht 1995.
4. ^{^} Merzbacher, Recht 1984, col. 1035.
5. ^{^} Strauch, Reichsgesetzbuch 1986.
6. ^{^} Björne, Rechtssysteme 1987.
7. ^{^} Andenæs, Verfassung 1964.
8. ^{^} Korkisch, Einführung 1977.