The Scandinavian Legal Family - An Introduction Mårten Schultz (LLD) Faculty of Law, Stockholm University; Stockholm Centre for Commercial Law

Today’s Lecture Introduction to Swedish/Scandinavian law Characteristics of Scandinavian civil law Why Scandinavian law is not like the continental, civil law systems Why Scandinavian law is not like the common law systems The Scandinavian approach in the era of globalization (Europeanization)

Introduction to Todays Lecture Civil law (patrimonial law) – where differences are most apparent (Public law and criminal law, an example of a Swedish freedom of press and whistle blower protection) Emphasis on Swedish law.

Introduction to Scandinavian Law

General Observations Scandinavia and the Nordic countries Language barriers in the Nordic countries The use of non-national legal sources (from other Nordic countries) in courts, preparatory works, academia, etc.

Brief Remarks on the Constitutional Structure of the Scandinavian Legal Systems Constitution? Swedish examples No constitutional court Division of powers The court system The judge career

Methodological Remarks The use of preparatory works Analogies ”Legal dogmatics”

Introduction to Scandinavian Civil Law

Sweden (Scandinavia): No civil code The Swedish law reform from 1734 Attempts to codify Scandinavian law The Swedish ”law book” (lagboken) is not a code

Statutory Law and Judge Made Law Swedish civil law: A patchwork of legislation and general principles On the notion of ”general principles” in this context Systematics of Swedish civil law

Legislative Gaps General law of obligations Services (non-consumers) Unjust enrichment/the law of restitution Negotiorum gestio (Qausi-contracts) Implications of a void contract

The Nordic Legislative Co- operation The Nordic tradition ”Common” legislation: The Act on Contracts (avtalslagen), the sales of goods act (köplagen), consumer protection legislation Contemporary projects?

Statutory Law and Judgemade Law – a more detailed view General contract law Property law The law of sales Consumer protection law Tort law

Why Scandinavian law is not like the continental systems

Characteristics of the Continental Systems The civil code: BGB; CC; ABGB; BW, etc. What is a civil code? The legal-cultural importance of codification. The systematic importance of codification The ”material” importance of codification

Continental and Scandinavian Law Compared Again: Sweden (Scandinavia): No civil code Many areas of civil law lack legislation General legal principles without (clear) statutory support Difficult to find systematic coherence

Why Scandinavian law is not like the common law systems

Common Law Judgemade law The idea of ”leading cases” ”Distinguishing”

Common Law and Scandinavian (Swedish) Law Compared The use of analogies in Swedish law as a basis for general legal principles The “loyalty” to Parliament of the Supreme Court Preparatory works

Concluding Remarks on Scandinavian Legal Method

…looking back General legal principles and analogies The use of preparatory works The uneasy place of constitutional arguments

The Heritage from the Scandinavian Legal Realists The Scandinavian legal realist movement Hägerström – founder of the Uppsala-school Olivecrona & Lundstedt (Swedish) Alf Ross (Denmark) *** On the relationship with American legal realism

Tenets of Scandinavian Legal Realism Emotivism Non-Cognitivism Moral anti-realism (”value nihilism”)

Consequences for legal analysis Vicious circles and empty legal language Repudiation of fundamental legal concepts: Rights, wrongfulness (”Rechtswidrigkeit“), etc. The notion of ”justice”