The Scandinavian Legal Family An Introduction

Mrten Schultz (LLD)

Faculty of Law, Stockholm University;
Stockholm Centre for Commercial Law

Todays 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

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 Cooperation

The Nordic tradition
Common legislation: The Act on
Contracts (avtalslagen), the sales of goods
act (kplagen), 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

Hgerstrm 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