The Scandanavian Legal System: an Introduction

The Scandinavian Legal System: An Introduction

Item Type Article; text

Authors Green-Gonas, Cami

Citation 6 Ariz. J. Int'l & Comp. L. 181 (1989)

Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)

Journal Arizona Journal of International and Comparative Law

Download date 26/09/2021 20:34:24

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Version Final published version

Link to Item http://hdl.handle.net/10150/659515 Essay

THE SCANDINAVIAN LEGAL SYSTEM: AN INTRODUCTION

Cami Green-Gonas*

Resumen

El prop6sito de este arffculo es ofrecer una visi~n de conjunto-una ilustracin-del sistema legal en Escandinavia A fin de entender el razonamiento legal de otro pals, uno debe de considerarla cultura lega la historia, la educaci6n legal y administraci6njudicial de ese pals. Escandinavia, ese grupo de paises que comparten historias y desarrollo geopolitico similares, incluye Dinamarca,Finlandia, Islandia,Noruega y Suecia. No existe un idioma fnico escandinavo. Hist6ricamenta los paises escandinavos ya habian establecido tribunales de equidad tan temprano como en el siglo dcimo. C6digos nacionales fueron implantados en los siglos doce y trece. Todavia, grandes secciones de estos viejos c6digos quedan intactas como parte de los c6digos civiles de algunospaises escandinavos.Hoy, las constituciones escandinavascontienen proteccionespara las libertades civiles, asi como garantfas sociales progresistas y laborales. Tal como en los paises del sistema civilista, la determinaci~n de lo que es la ley en Escandinavia es mds precisa que en os paises del Derecho Comfin. Uno puede referirse a los libros de los c6digos nacionales para una repuesta difinitiva sobre cuestiones legales. Los juicios no son fonnales. No existen reglas de evidencia detalladas.Eljuez controla el interrogatorio de testigos y los proteje. El jurado puede considerarcuestiones de derecho y de hecho, asf como imponer castigos en las causas criminales. El sistema legal escandinavo es radicabnentediferente del sistema legal en los Estados Unidos. Aunque diferente,funciona bien para esos paises y varios de los mntodos utizados por los tribunales escandinavospueden servir como modelos de cambio para los Estados Unidos.

*Associate Director, Foreign Graduate Program, University of Miami School of Law. M.C.C.L., 1971 University of Miami; L.L.B., 1968 University of Helsinki School of Law. Arizona Journal of International and Comparative Law [VoL 6:181

Abstract

The purpose of this Essay is to give an overview-an illustration-of the legal system in Scandinavia. In order to understand the legal reasoning of another country, one must consider that country's legal culture, history, legal education and judicial administration. Scandinavia, that group of countries which share similar histories and geo-political growth, includes Denmark, Finland, Iceland, Norway and Sweden. There is no one Scandinavian language. Historically, the Scandinavian countries established courts of equity as early as the tenth century. National codes were implemented in the twelfth and thirteenth centuries. Large sections of these old codes still remain intact as part of the civil codes in some Scandinavian countries. In addition to the ancient codes, today, Scandinavian constitutions contain protections for civil liberties as well as progressive social and labor guarantees. Because the legal system of Scandinavia is more heavily codified than in common law countries, it is somewhat easier to determine what the law is. Trials are more informal in Scandinavia, as opposed to the formality of United States courts. Elaborate rules of evidence do not exist. The judge, and not the lawyers, controls witness examination and protects the witness. Juries in Scandinavia may consider law as well as facts. Juries, in some criminal cases, also determine the sentence. Despite significant differences, the Scandinavian legal system has a number of important similarities with the legal system based on Anglo-American law. The Scandinavian system functions fairly and efficiently, suggesting that important lessons from the Scandinavian experience may be profitably applied in the United States.

Introduction

Years ago, when arriving at the Helsinki airport, foreigners were often overheard remarking how modem it was. Finns, on the other hand, would chuckle and conspiratorially whisper to each other. "Is that the concourse Mr. High Society built?," referring to the fact that many well-known individuals had been penalized for driving while intoxicated with a work detail at the new airport. Could this type of punishment be applied in the United States or any other common law system? Is this an unusual penalty under a civil law system? Does Finland typify a civil law country? Spring 19891 The Scandinavian Legal System

The purpose of this brief study is not to respond to those academic questions about Finnish law, but to present an illustrative, rather than exhaustive, overview' of the legal system in Scandinavia. It would serve little or no purpose to attempt a complete explanation of the prevailing substantive law, although applicable statutory provisions in Scandinavia offer a much more reliable indication of the law than in the U.S. system. In addition to the written law, one must be cognizant of underlying social and legal principles from the perspective of each country at issue.2 Even for a very rudimentary understanding of the legal reasoning of another society, one must consider such vast areas as legal culture and history, legal education and judicial administration. These factors are reviewed with the complete social system as a back-drop. Sometimes reference will be made to "Scandinavian law" as if there is only one Scandinavian country.3 Other times, an example from one particular country will be high-lighted with the implication that this might apply to the rest of Scandinavia,4 possibly with some modification. While an American faced with a matter involving domestic law might first ask "where do I go for advice?," the initial inquiry of his Scandinavian counterpart might instead be "what is the law?" To juxtapose both ways of thinking in a setting more familiar to the U.S. educated lawyer, this Essay shall examine six aspects of Scandinavian law and society:

'This Essay is based on a lecture given in October, 1986 to the comparative law class of Profeior Siegfried Wiessner, St. Thomas University School of Law, Miami, Florida. 2For a discussion on how to understand the legal system of another country, see Winterton, Comparative Law Teaching, 23 AM. J. COMP. L. 69 (1975). 3The preface to SCANDINAVIAN STUDIES IN LAW (1957) focuses on the closeness of the laws in the five referenced countries, comparing the situation in Scandinavia with that of the United States. Joint legislative efforts dating back as far as one hundred years have resulted in many joint Scandinavian statutes, mostly in the field of family, labor and trade law. These deliberate efforts to keep Scandinavian law uniform continue today as lawmakers convene every three years. For a history and overview of these efforts, see Hellner, Unification of Law in Scandinavia, 16 AM. J. COMP. L. 88 (1968), and Pontoppidan, A Mature Experiment The Scandinavian Experience, 9 AM. J. COMP. L. 344 (1960), and Petren, Nordic and InternationalLaw Making, 12 SCAND. STUD. L. 67 (1968). 4This is the technique used by Gomard in Civil Law, Common Law and Scandinavian Law, 5 SCAND. STUD. L. 27, 34 (1961). Arizona Journal of International and Comparative Law [Vol 6.181

I. LOCATION AND DEVELOPMENT OF SCANDINAVIA II. LEGAL HISTORY III. SCANDINAVIAN CONSTITUTIONAL LAW IV. OTHER SOURCES OF LAW V. ENFORCEMENT OF THE LAW VI. CIVIL AND CRIMINAL PROCEDURE VII. LEGAL EDUCATION AND THE LEGAL PROFESSION Finally, the Essay will conclude with an attempt to establish in what major system, if any, Scandinavian law fits. One additional caveat must be noted: at all times the reader should dismiss any possible feelings of juridical superiority and paternalism toward Scandinavia. 5 Whereas comparative analysis is enlightening, ethnocentrism is academically suffocating. Scandinavia's own societal standards must be applied in assessing its legal system.

I. LOCATION AND DEVELOPMENT A. Defining the Area and Size of Scandinavia

It is evident6 that few people should presume that American lawyers know what comprises Scandinavia or where it is located. Even legal authorities are unclear 7 in their geo-political definition. Some write of Denmark, Norway and Sweden only.8 Others include Finland, and even

5Winteiton, supra note 2, at 81. 6This conclusion, although by no means based on an empirical study, is drawn from the many talks I have given at schools of various levels. If a generalization may be ventured, I would be so bold as to note a remarkable difference in young schoolchildren as compared to mature members of the legal profession: the latter are more 7obvious in their general lack of geographic knowledge. One recent text book, R.B. SCHLESINGER, H.W. BAADE, M.R. DAMASKA, P.E. HERZOG, COMPARATIVE LAW: CASES-TEXT-MATERIALS (5th ed. 1988) [hereinafter COMPARATIVE LAW], never defines Scandinavia in its indexed reference to such law. Page 327 contains a cursory reference to the "five Scandinavian nations." On page 32 there is discussion about joint legislative efforts "in Scandinavia", which apparently includes Denmark, Finland, Norway and Sweden. In other instances, reference is mainly made to Swedish law. 8von Eyben, Judicial Law Making in Scandinavia, 5 AM. J. COMP. L. 112 (1956); see also SCANDINAVIAN BANKING LAWS (Columbia School of Business ed. 1926) and 1 AN INTRODUCTION TO SWEEDISH LAW 201 (S. Stromholm ed. 1981). Ekelof, Scandinavian Countries, XVI-6 INTERNATIONAL ENCYCLOPEDIA OF COMPARATIVE LAW 189, (M. Cappelletti ed. 1984) omits any discussion of Iceland even in his historical background of Scandinavia. Although H.L. Ross writes about the "Scandinavian myth" he totally disregards Iceland. Ross, The Scandinavian Myt*r The Effectiveness of Drinking-and-Driving Legislation in Sweden and Norway, 4 J. LEGAL STUD. 285 (1975). spfig 19891 The Scandinavian Legal System fewer mention Iceland.9 Available material indicates that most comparative articles focus on Sweden and treat other countries in a much more perfunctory manner. This may be motivated by Sweden's socio-political stature among its neighbors, as well as having originated at least one internationally important legal concept, that of the Ombudsman. For the purposes of this overview, Scandinavian countries include: Denmark, Finland, Iceland, Norway and Sweden.1 Because of its small size and shared historical ties with Norway, Iceland will not be considered separately. Geographically, Scandinavia covers less than one-quarter of the United States and has a population of around 23 million people."1 Helsinki and Stockholm are located at approximately the same latitude as the Southern tip of Greenland. Yet, because of the influence of the Gulf Stream, .the four-season climate in Scandinavia closely resembles that of New England.

B. History

The first union of all Scandinavian countries occurred between 12 1389 to 1521, and ended when Sweden and Denmark separated. During that time Iceland was part of Norway and Finland belonged to Sweden. Historical records from these centuries sketchily refer to the most Eastern part of Sweden as "Eastland" (now called Finland), which became a Grand Duchy of Russia in 1809, and finally became independent in 1917. Iceland, on the other hand, was an independent nation until conquered by Norway in 1262 and later it fell under Danish rule. Not until 1944 did it regain complete independence.

9The editorial board of SCANDINAVIAN STUDIES IN LAW includes representatives of five countries: Denmark, Finland, Iceland, Norway and Sweden. One authority, L. B. Orfield, makes a specific point of excluding Finland, although acknowledging that "its law, history, government and culture are...equally significant." THE GROWTH OF SCANDINAVIAN LAW X (U. of Pa. ed. 1953). Iceland is obvious in its absence from a discussion on unification of Scandinavian law. Hellner, supra note 3. 10Even this definition is not without shortcomings in a legal article. Although the Danish Constitution applies to all parts of Denmark, which includes the territories of the Faroe Islands and Greenland, there are special constitutional provisions for those areas. Similarly, the Aaland Islands, which formally belong to Finland, are in a peculiar constitutional position. "Based on latest population figures from the Miami Consulates of the respective Scandinavian countries. 12T.K. DERRY, A HISTORY OF SCANDINAVIA 69 (1979). These basic historical facts, as well as the remainder covered in Part B, are common knowledge among Scandinavian schoolchildren and available in any basic history book on that part of the world. Derry's work is probably the most detailed account available in English. Arizona Journal of Internationaland Comparative Law [Vot 6:181

C. Language

The: difficulty of explaining a foreign legal system is often compounded by language discrepancies. 13 For instance, it is difficult to translate, for a Scandinavian attorney, terms of art such as "equity" or "trust," although in English they are only one word and one concept. Similarly, the Swedish "bo-uppteckning"14 in estate law cannot be turned into English in a quick and simple manner. The difficulty becomes even more apparent when dealing with relatively recently developed concepts, not yet widely adopted elsewhere such as the "rule of reason" in antitrust law. Scandinavian lawyers recognize that their American colleagues spend much time perusing cases, statutes and legal literature of states other than their own. But where the American lawyer has no language problem or difficulty in understanding the culture of other U.S. jurisdictions, these two factors are major considerations in the study of Scandinavian law. There is no common Scandinavian language. Each country speaks its own language, with the exception of Finland, where both Swedish and Finnish are used. While Scandinavian jurists can find common grounds in the Swedish language, a court hearing in Finland would seem totally alien to a Swede unless conducted in Swedish. In Finland, however, the right to be heard in Swedish in a Finnish courtroom is guaranteed by the Finnish Constitution.' 5

D. Social Structure

The general cultural and ethnic homogeny of Scandinavia is disrupted only by the Lapps in the northern part of Norway, Sweden and Finland (formerly Lapland). In addition, Sweden in particular has a large immigrant labor force from southcentral Europe as well as a substantial percentage of unskilled labor in its workforce from Finland. Social disturbances, such as crime, in the otherwise tranquil Scandinavian communities are, therefore, becoming more common. While all areas of the world share to some degree in this problem,

13Winterton, supra note 2, 4 at 84. 1To a Swedish-speaking lawyer the term is self-evident. In English, it refers to the 5inventory of an estate, which must be filed with the court. ' FIN. CONST. ACT, art. 14.2. Although there is a formal way of citing Scandinavian statutes, the constitutions and original codes particularly are cited by name only. It has be.n difficult to establish a method of citation consistently applied by academia and practitioners, although in theory statutory referals should contain name, year and number (e.g., Swedish Contract Law: SFS 1950:218). Henceforth, names only will be used unless there is a particular reason for noting the year. spring 1989] The Scandinavian Legal System the magnitude of it can only be judged by each country's frame of reference. Recently, for instance, Finland experienced its first hostage-taking crisis 16 by an armed person who forced his entry into a bank and subsequently fled in a car before both he and the hostage were killed by police. Unlike the United States, this was a major criminal event in Finland and it caused the other Scandinavian countries to debate and scrutinize their own police procedures and gun control legislation. Centralization of governments and educational systems also add to a uniformity of Scandinavian experiences. Even the church 17 is run by the state18 and acts partly as a government agency, registering births, marriages and deaths. A Scandinavian citizen is considered to be 'born into the church.' Only by legal action can he remove himself from official church membership. 19 Thus, the cultural homogeny of the Scandinavian countries, the centralization of the governmental education systems, and the prominent and official status of the church are factors perhaps alien to an American, but very much a consideration when attempting to explain or comprehend the Scandinavian society as a back-drop for the evolution and current status of Scandinavian laws.

II. LEGAL HISTORY OF SCANDINAVIA

Over one thousand years ago, each province of Scandinavia had its own laws much like other parts of Medieval Europe. There was a close similarity between laws in all of the Scandinavian countries 20 As early as the tenth century, the Norwegian King began appointing 400-500 people to a "lagting"21 (assembly) which held legislative,

16Foreign Ministry Press Overview, August 11, 1986. Loaded with dynamite, the car blew up in a shoot-out with the police, for which the police chief disclaimed responsibility. Eleven persons were injured in this event. t7Over 90% of the population is Lutheran, according to official government figures. For a history of the church's development in Scandinavia, see eg., DERRY, supra note 12, at 96. 18FIN. CONST. ACT, art. 83.1, provides for the passage of a special Ecclesiastial Code, also passed similarly in the other Scandinavian countries. 19See, e-g., Danish Ecclesiastial Code, art. 5; Finnish Ecclesiastial Code, art. 6; Norwegian Ecclesiastial Code, c.l. 20DANISH LAW, A GENERAL SURVEY 32 (H. Gammeltoft-Hansen, B. Gomard & A. Philip eds. 1982). 21Originally, the lagting (sometimes spelled "thing") was an assembly of free men who gathered to solve various local disputes. Records of this forum are found from as early as the eighth century. DERRY, supra note 12 at 14. These "tings" had early legislative powers. Id. at 24. Around the end of the tenth century, this became a "parliament," or "allting," presided over by a lawman. Id at 33. Arizona Journal of International and Comparative Law [VoL 6.181 executive and judicial powers. The chairman was always a man who enjoyed particular confidence because of his legal knowledge. Because these assemblies functioned as rule-making entities with regard to disputes and the chairman of the assembly was appointed by the crown, the assemblies were known as royal courts. These royal courts functioned under general rules of equity. As a legislative body, these assemblies were prolific. In 1118, Iceland was the first Scandinavian country to adopt a written national code, followed in 1275 by Norway 22 and by Sweden in 1350. The intent of these codes was to establish completely functional legal systems. 23 In 1683, a national code for Denmark was enacted, followed four years later by a similar code in Norway, referred to as the "starting point of the modern statute book."24 Sweden enacted a revised national code in 1734. Parts of these ancient codes are still in effect.25 These national codes were clear in their disapproval of the application of all foreign law, particularly Roman law. 26 However, at the time the codes were promulgated, Roman law had already left a mark in family, property and contract law, although that influence was much less than in other European countries. Instead, Germanic law assumed a greater role in Scandinavian legal development. In 1362, Finland was the last of the Swedish provinces to be put on an equal footing with the other provinces when Sweden declared that Finland had the right to participate in the election of the King of Sweden.27 In spite of this equality, Finland maintained a special position in the Scandinavian union when a special supreme court was established in Finland.28 Finland already had its own "lagman" (literally "law man") referring to a royal judge, but nevertheless established a higher court. As with other representatives of the Scandinavian Crowns, the royal judge applied principles of equity in resolving disputes.

22DERRY, supra note 12, at 56. 231 AN INTRODUCTION TO SWEDISH LAW, supra note 8, at 31. 24 DERRY, supra note 12, 25 at 142. Both the Swedish and Finnish Codes of Procedure still contain numerous original provisions. For Finland, one example is art. 9, cl.1 which mandates the loss of office for a judge who lets someone else rule in his place. Chapter 1, art. 4 of the original Finnish Trade Act states that the buyer of a horse may change his mind in three days. Unfortunately, the quaintness of language and concept is lost in translation, unless the reader is knowledgeable in old Swedish or old Finnish, to which the provision was translated. The Norwegian 1687 Code has one particularly interesting original provision, that makes oral promises binding (art. 5.1). 26 Roman law was never "received" in Scandinavia. Pontoppidan, supra note 3, at 344. See also Munch-Petersen, 27 Main Featuresof Scandinavian Law, 43 L.Q.R. 366 (1927). THE FINNISH LEGAL SYSTEM 9 (J. Uotila ed. 1985). DERRY, supra note 12 at 54. 28THE FINNISH LEGAL SYSTEM supra note 27, at 30. Spring 19891 The Scandinavian Legal System

In 1809, when Russia conquered Finland, the Finns acquired a peculiar legal status. The Russian Constitution declared that the Finns were to have equal rights (such as the right to vote) in Russia, but Russian citizens did not enjoy reciprocal status in Finland. This constitutional irregularity has never been repeated since-or before for that matter-in any other nation's history.29

M. SCANDINAVIAN CONSTITUTIONAL LAW

Today, all of the Scandinavian constitutions 30 follow Montesqieu's doctrine of separation of powers. Individual citizens are guaranteed fundamental rights similar to those provided in the United States Bill of Rights. For instance, the Constitution Act of Finland of 1919 enumerates fundamental rights as equality before the law, freedom of speech, freedom of association and assembly, freedom of property (real and personal), freedom of the press, privacy of the mail, religious freedom and other rights. There have, however, been several amendments that reflect a change in thinking and circumstances. Specifically, note should be made of changes made in 1976 when Finnish citizens were guaranteed "the right to work."31 The Danish Constitution also speaks of "freedom of business," and the "right to receive public assistance." 32 One provision distinguishing the Finnish Constitution from other Scandinavian constitutions is the provision granting equal status for two national languages, Finnish and Swedish.33 The main distinction between the Scandinavian constitutions lies, however, in the executive power structure. With the exception of Iceland and Finland, the Scandinavian countries are monarchies. The Finnish Constitution originally provided for a

29 Based on a lecture given by Professor Yrjo Blomstedt of the University of Helsinki School of Law at the University of Miami School of Law (Sept. 1980). 30The Swedish Constitution of 1809 is the second oldest in the world, after the U.S. Constitution (already in 1644 the Swedish colony in Delaware adopted its constitution. See L.B. Orfield, supra note 9, at 240). The other Scandinavian constitutions date from 1814 (Norway), 1849 (Denmark), 1919 (Finland) and 1944 (Iceland). In a sense, the English term may mislead the reader to believe erroneously that the referenced "constitution" consists of only one document when, indeed, several independent codes have been given the same "constitutional" importance. For example, the Swedish "Constitution" consists of three codes, two dealing with the form of government and the third is the Freedom of Press Statute. See infra, the discussion on the passage of laws. 3 'THE FINNISH LEGAL SYSTEM, supra note 27, at 64. 32Sections 74 and 75, respectively, Dan. Const. Act. 33Fin. Const. Act, art. 14.1. Arizona Journal of International and Comparative Law [VoL 6:181 monarch. However, after a German prince was elected King of Finland, who then promptly declined the honor, the Finnish Constitution was amended to provide for a president as the highest 34 executive officer. The Scandinavian countries structure their governments into a legislative, executive and judicial branch. Most Scandinavian jurists consider the separation of powers a self-evident matter that is seldom discussed among practitioners. Judicial independence, both in the nominating process as well as the court structure, is often debated in the United States but rarely spoken about among the Scandinavians. Later in this Essay,35 constitutional judicial review of statutes shall be addressed.

IV. OTHER SOURCES OF LAW A. Traditional Sources

It has been said that in a common law country as much as two-thirds of a law library consists of case material. In Scandinavia, it is relatively easy to research, work with legal material and ascertain what the law is.36 Formal sources of law are codes, statutes, ordinances and decrees. These normally constitute only a fraction of an American law library. Anecdotes abound about American lawyers traveling to Scandinavia to seek counsel's opinion on a specific matter. As the stories go, the Danish, Finnish, Icelandic, Norwegian or Swedish lawyer will pull out a large book, called a Code Book, or a National Law Code and flip through its pages and quote a provision with a firm expression indicating "this is your answer," 37 while his American colleague vainly seeks to have the statutory quote expanded upon either by a lengthy brief or previous court opinion. As with many civil law systems, the statute is the law. The code books are not to be confused with the

34E. JUTIKKALA WITH K. PIRINEN, A HISTORY OF FINLAND 223, 226 (rev. ed. 1979). 3sSee infta Part V(B). 36For an American lawyer it may be interesting to know that most major codes and statutes have been translated into English and are available through the consular offices of the various countries. However, consuls-unless trained in the law-are prohibited from interpreting the meaning of these laws. 37The Swedish Bar Association, in its domestic publication on the legal profession, illustrates an attorney consulting with a client as needing only two items: a tape recorder and the National Code Book, the latter for the purpose of confirming the law. ADVOKAT - ETT YRKE I NARBILDER 16 (Sveriges Advokatsamfund ed. 1985). spring 19891 The Scandinavian Legal System

German Burgerliches Gesetzbuch or the French Civil Code, which are general codifications of private law. In Scandinavia, the Code Book is a comprehensive collection38 of existing statutory law, including separate sections on private law, civil law, codes of procedure and commercial law.

B. Filling the Gaps

As discussed above, the codification of Scandinavian law dates back many centuries. The original barbarian tribes began writing down laws as early as the seventh century, followed by an era of crusades when some Roman and Canon law entered into Scandinavia. 39 In Medieval times Nordic codification was haphazard, omitting some general rules and consequently leaving gaps in the law. Since the authors of the Medieval Codes were not trained legal scholars, it was not uncommon to find statutes providing for the use of force, for example, but being totally silent on matters involving fraud or intention. Many times these omissions were filled in by the royal courts judging on an equitable basis. Where the loopholes were becoming more obvious, textbooks by scholars assumed more importance and Scandinavia began looking to legal literature for its doctrine, particularly in Germany but also France. The turn of the nineteenth century brought a renewed national pride in Scandinavia so that its legal system began to focus on domestic case studies. Today, the Scandinavian legal system reflects a combination of two elements: (1) the codes and (2) judicial decisions which are published 40

38 For a comparison of the methods of arranging statutory material in Scandinavia and Germany, see Schmidt, The German Abstract Approach to Law, 9 SCAND. STUD. L. 131 (1965) [hereinafter German Abstract]. Mr. Schmidt calls the German system "rather artificial" it, at 149, and the Swedish "functional" id,at 151. J.W.F. Sundberg, on the other hand, refers to the Scandinavian style as an "unsystematic build-up of the codes." Sundberg, Civil Law, Common Law and the Scandinavians,

39 13 SCAND. STUD. L. 179, 201 (1969). The origin of some of these codes is reflected in the original Swedish name: balk, which is still the word for a rafter or beam. In ancient times, laws were inscribed onto 40 these supportive logs and are preserved in some ancient Viking buildings. Von Eyben, supra note 8, at 112. FACT SHEETS ON SWEDEN (Swedish Institute ed. 1986). Denmark does not officially report legal decisions, although the UGESKRIFT FOR RETSVAESEN publishes some, Koktvedgaard, National Reports, D-26; Finland follows a similar pattern, (Jokela, National Reports, F-40); while Norway reports all of its Supreme Court decisions, Lodrup, National Reports, N-77; and Sweden is selective, Malmstrom, National Reports, S-162. A common collection of Scandinavian decisions is found in NORDISK DOMSSAMLING. The methods of citing such cases are also different from the American way. The names of the parties are not used, but rather the date, publication and page number. Arizona Journal of Internationaland Comparative Law [VoL 6.181 regularly in all countries. Supreme court cases are not cited by the names of the parties but rather with the date of the case, and the decisions are brief with limited legal reasoning included. Dissents, however, are usually more explicit. The Norwegian practice is probably the closest to the United States in that the deliberation of the supreme court justices is a matter of public record. The vote of the first voting judge carries the greatest importance since each succeeding justice might go on record as "agreeing in essence." Scandinavian judges are obligated to abide by the text of a statute 4' even if its language is vague and ambiguous. Their role is one of an interpreter of the law. Even a bad statute is preferred over the insecurity of giving full discretionary power to a judge.42 When necessary, a Scandinavian judge will try to ascertain the intent or true meaning of legislation. To that end, legislative history and legal writings are important.43 Previous decisions of the supreme court may be persuasive, but with the exception of Norway,44 supreme court decisions are not binding on the supreme court (thus, there is no comparable doctrine of stare decisis) and supreme court decisions do not bind the lower courts. Judges of lower courts have a right to decide a case unfettered by other decisions. But since the supreme court is slow in overruling its own decisions, lower courts have a tendency to consider those decisions as authoritative.45 Scandinavian courts will only settle lawsuits of actual conflicts and refrain from making general statements of law or principles. It is therefore difficult to deduce a general rule from a decision. Many courts appear to go out of their way in addressing all points in a case, at times seemingly seeking to satisfy the public desire for a "right" decision by applying malleable principles of equity.46

41 Finnish Code of Procedure, ch. 24, art. 3; Dan. Const. Act, art. 64. Both the Finnish and Swedish Code Books contain in their introduction Rules for Judges, which 42specifically spell out this obligation (Rule 1). Schmidt, Constructionof Statutes, 1 SCAND. STUD. L. 157, 196 (1957) [hereinafter 43Construction]. Von Eyben, supra note 8, at 112. FACT SHEETS ON SWEDEN, supra note 40. Jokela, National Reports, F-38. 44Lodrup, National Reports, 45 supra note 40, at N-76. Schmidt, Construction, supra note 42, at 167; FINNISH LEGAL SYSTEM, 82. Malmstrom, National Reports, S-161; Koktvedgaard, NationalReports, supra note 40 at D-25; Jokela, National Reports, supra note 40 at F-39; Lodrup, National Reports, supra note 40, at N-76. 46Von Eyben, supra note 8, at 114 and F. Castberg, Philosophy of Law in the Scandinavian Countries, 4 AM. J. COMP. L. 388, 390 (1955). Spring 19891 The Scandinavian Legal System

V. ENFORCEMENT OF THE LAW A. The Couit System

The original rural courts were made into circuit courts, or courts of first instance, as early as the Middle Ages. Finland and Norway have maintained a distinction between county and city courts, but this difference has been eliminated elsewhere. Norway generally requires a civil action to be brought before a Conciliation Board47 before proceedings are instituted in a regular court of law. Since the elected members of the Board are laymen, this process can loosely be likened to the common law jury system although the two must not be confused. The Danish system resembles the European or continental system in that some cases must be filed with a court that otherwise is for appeals. 48 Denmark also has a special court for commercial matters. The regular circuit courts in the rest of Scandinavia routinely adjudicate commercial matters. There are roughly 100 circuit courts in each Scandinavian country, with the exceptions of Iceland and Denmark. Iceland and Denmark decreased the number of circuit courts by increasing the size of the circuits. An appeal may be had from the court of first instance to a higher court with final appeal going to a supreme court.49 In order to take a matter to the highest court, special leave usually must be granted. The United States writ of certiorari mirrors the practice of granting special leave for an appeal, but the term certiorari is not applied to this procedure. Permission to appeal is normally granted only when the hearing of a case might settle a previously unsettled point of law. The Norwegian right of appeal is limited by the economic value involved, and the Appeals Selection Committee of the Norwegian Supreme Court has extensive discretionary power to refuse to submit an appeal to the highest court. In Sweden, permission to appeal is usually granted when it is important to establish a possible precedent and in Denmark the deciding criterion is "general interest," such as a doubtful legal point. Finland and Sweden have special courts for administrative matters. In addition, there are other special courts for varying purposes. For

47Mediation by this Board became a compulsory part of Norwegian-Danish court procedure already in 1795. NORWAY INFORMATION 1 (Royal Norwegian Ministry of Foreign Affairs ed. 1982). 48Ekelof, supra note 8, at 193. 49Fin. Const. Act, art. 53; Finnish Code of Procedure, ch. 30. Norwegian Code of Procedure, ch. 25. Danish Code of Procedure, ch. 36. Swedish Code of Procedure, ch. 30. Arizona Journal of International and Comparative Law [VoL 6.181 instance, Finland has its Labor, Water, and Impeachment Courts. Denmark has an Admiralty Court and a Court of Revision. Norway has a Social Insurance Court and in Sweden there is a Market and a Housing Court. No temporary courts may be set up and special courts are only created by the legislative branch of government. All Scandinavian constitutions include a provision that a citizen must not be tried by any other court than that "having proper jurisdiction" over him.5 Thus, the legitimacy and constitutionality of the special courts is fundamental to properly rendering judgments.

B. Determining the Constitutionality of Laws

The next area of focus is how the constitutionality of a law is tested. To understand Scandinavian constitutional law principles, one must first understand how laws are made in Scandinavia. Although Finland is chosen as a specific example, the Finnish procedure closely resembles that of other Scandinavian countries. A proposal for a new law is submitted to Parliament either from one of its own members or the Cabinet. The proposal is discussed in a committee, called the Constitutional Committee in Finland and Sweden, before being voted upon by the Parliament as a whole.5' While in committee, the bill is scrutinized from every angle in light of the Constitution. If the bill does not propose to amend a fundamental right it is called an ordinary statute. Only a regular majority is needed to adopt the proposal. If the proposal is considered a constitutional amendment, the bill must first be passed by a regular majority. Then the bill must be held over until after Parliamentary elections when the bill must be re-adopted by a two-thirds majority of the new Parliament. A bill can be declared urgent by a five-sixths majority of the Parliament and then adopted by a two-thirds vote of the same Parliament. The president can veto a bill,52 but there are also procedures for having a bill adopted without

50 Fin. Const. Act, art. 13, the Swedish Const. Act, ch. 1, art. 9, Norwegian Const. Act, art. 96. 51Since the Committee is made up of elected members of Parliament, theoretically speaking, one might anticipate a situation where no member has any legal training. This is, however, not a rational conclusion. One must bear in mind that the Committee does not draft the laws, it merely considers them. A constitutionally protected procedure considering the committee's recommendation further ensures complete scrutiny by jurists before adoption. Finnish Parliament Act, art. 63, 65. See also, .pra, note 47. 52Fin. Const. Act, art. 19; Norwegian Const. Act, art. 78; Dan. Const. Act, art. 22. When the Swedish Constitution was revised in 1974, the King's veto power was eliminated. Spring 19891 The Scandinavian Legal System presidential approval. Some bills are adopted under procedures not quite as demanding as required for a constitutional amendment and yet more complicated than an ordinary statute. The Chancellor of Justice serves as the ultimate guardian of the constitutionality of a 3 statute and may interfere when necessary.5 When considering the constitutionality of a Finnish statute and a decree or ordinance, 54 a distinction must be drawn between them. The Finnish Constitution55 prohibits a court from "enforcing an unconstitutional decree or ordinance." A statute cannot be repealed by the judiciary, but only through the proper legislative process. 56 This is not the case in Norway, however, where statutes have been overruled by the courts.57 Although this power is also entrusted to the Swedish and Danish judiciary, it apparently has never been used.58 Consitutional challenges to a statute are rarely raised by practitioners. On the whole, determining the constitutionality of Scandinavian law, with the exception of Norway, remains an abstract issue, far removed from the legal practitioner.59

C. Interpretation of the Law

Since precedents are not binding on the lower courts, directives for 60 judicial decisions must be found elsewhere. The Swedish Constitution states that "[t]he Constitutional Laws should, in all cases, be literally applied."61 But individual statutes, such as tort laws, often seek to resolve questions of law by applying doctrines utilizing a "consideration of fairness" or a "weighing of interests." In typical common law terminology, this is equity. There are, for example,

53For an extensive discussion on the constitutionality of Finnish statutes, see Saario, Control of the Constitutionalityof Laws in Finland, 12 AM. J. COMP. L.194 (1963). See also the Fin. Const. Act, art. 45. 54 A decree is issued by the President of the Republic and an ordinance by the Council of State, as well as Ministries in their course of administrative duties. SSFin. Const. Act, art. 92.2; Swedish Const. Act, ch. 11, art. 14; Dan. Const. Act, art. 88. 56THE RULE OF LAW IN FINLAND (Ministry of Foreign Affairs ed. 1981). 57 See, ag., Government Decrees expropriating property from private individuals. 58Sundberg, supra note 38, at 202 n. 3. 59 M. Hiden, STATSSKICKETS UTVECKLING I FINLAND, SVENSK JURISTTIDNING: 1734 ARS LAG 918 (1984). See, also, Saario, supra note 48, at 205. 60Swedish Const. Act, ch. 1, art. 1. 6 1 nterestingly, the Finnish Code of Procedure, ch. 1, art. 11 adds that a judge must ascertain what the "intent" of the law is. This provision is part of the original 1734 Code. Arizona Journal of International and Comparative Law [Vol 6:181

statutory provisions forbidding certain methods of competition which are improper according to "accepted standards" or prices which are "unreasonable." Other terms used are "the nature of the case" and 62 "general principles of law." As for the term "general principles of law", it is interesting to note that a statute of the International Court of Justice directs that court to apply "general principles of law recognized by civilized nations."63 No discussion of the interpretation of Scandinavian law is complete without mentioning the Rules for Judges. The Swedish and Finnish Code Books print forty-three rules for judges. These rules are now over four centuries old. The rules give guidance to the courts in their task as interpreters of the law. Rule 10 specifies that "[a]ll law must be applied with equity..." and Rule 42 states that "[t]he law is misapplied if the intent of the law is disregarded." These rules can be viewed as bromides rather than directives, 64 but judges adhere to these rules and the rules reflect a degree of binding guidance to the judiciary.

D. Judicial Independence

Scandinavian judges are civil servants, whose unremovability from office is one of the most important safeguards for the independence of the courts. Under the Scandinavian constitutions,65 a judge can be removed from office only by the decision of a higher court as a result of a crime or incapacity to work. A judge can be involuntarily moved to another office only during a re-organization of the court system. The judiciary exerts a major influence on the appointment of judges, with the exception of Norway,66 although justices of the highest court are appointed by the executive. Most judges remain apolitical throughout their careers, further ensuring the impartiality of the courts. Individual rights within the court system are guarded closely by an old concept (since 1809) in the Swedish legal system called the parliamentary ombudsman. This position is best described as a public monitor or watchdog. The parliamentary ombudsman inspects not only the judiciary but also other public officials. The parliamentary ombudsman serves as a guarantee against oppressive measures within

62 Swedish Contract Law, art. 36. Norwegian Statute on Price Regulation, ch. 63 V. Statutc of the International Court of Justice, art. 38.1. "See infra, Part IV. 6SFin. Const. Act, art. 91; Dan. Const. Act, art. 64. Swedish Const. Act, art. ch. 11, art. 5; Norwegian Const. Act, ch. 22, art. 2. 66Eckhoff, Impartiality, Separation of Powers and Judicial Independence, 9 SCAND. STUD. L. 9, 34 (1965). Spring 19891 The Scandinavian Legal System the judicial system and the civil administration. The parliamentary 67 ombudsman reports breaches of duty and may admonish an official. Up until 1976, a parliamentary ombudsman could impose criminal sanctions for a breach of duty by a Swedish civil servant. Now, only an admonition can be given by the parliamentary ombudsman. The concept of a parliamentary ombudsman has also been embraced by 68 Finland and Norway. Denmark excludes the judiciary from the parliamentary ombudsman's jurisdiction. This is because there already exists a Special Court of Revision (or Complaints) for this purpose. 69 A complaint may be taken directly to the chief administrator of the court. An appeal may then be brought to the Danish Supreme Court. One of the most publicized cases of judicial misconduct involved a formal reprimand of a Danish judge for losing his temper and throwing 70 evidence at the feet of a defendant. The distinction between the two methods of government monitoring is that the more widely accepted form, that of the parliamentary ombudsman, (adopted by Finland, Norway, Sweden)7 1 continuously monitors all activities of the courts, while the Special Court of Complaints in Denmark considers only specific charges against judges. There are also special areas in which ombudsmen have been appointed. Sweden, for instance, has an ombudsman in the following fields: economic competition, public complaints, equal opportunities, ethnic discrimination and freedom of the press. The concept of the ombudsman is perhaps the most widely recognized Scandinavian judicial feature in the United States. The integration of the office of ombudsman into American state courts or legislatures speaks well for the importance and efficiency of this position.

VI. CIVIL AND CRIMINAL PROCEDURE

To an American, Scandinavian trials may seem relaxed and informal, while at the same time orderly. The Scandinavian countries, known as welfare states, are specifically designed to provide for what

67See, ag., Norwegian P.O. Statute, art. 4; Danish P.O. Statute, art. 10. 68For an overview of the Scandinavian Parliamentary Ombudsmen, see Anderson, Judicial Accountability: Scandinavia, California & the US.A., 28 AM. J. COMP. L., 393 (1980). The Fin. Const. Act, art. 49. 69DANISH LAW, supra note 20, at 368. 70Anderson, supra note 68, at 399. 71The Finnish Statute on Instructions for the Parliamentary Ombudsman, art. 1. Arizona Journal of International and Comparative Law [VoL 6.181 has been called "a common sense approach" 72 to all potentially difficult areas of life. Another descriptive term might be "a collective solution." Litigation is often an attempt to negotiate and smooth over a malfunction of the legal system, rather than a battle for an individual's right. Both parties state in the original pleadings what they want the judgment to contain. There are no pre-trial conferences with the judge. Elaborate rules of evidence do not exist. Witnesses are called as circumstances demand. The judge controls any interrogation and protects witnesses. No leading or incriminating questions are allowed. 73 Hearsay evidence is admissible but considered cautiously.74 No new evidence is permitted after a date for trial has been set. Hence, there are few surprises during trial.75 The picture painted by American television and movies (often a foreigner's only insight to U.S. culture) of court rooms in the United States is totally alien to a Scandinavian. It is important to remember that Scandinavians are generally a highly educated, almost fully literate and homogenous people. Add to that a relatively stable society and one might understand the Scandinavian desire to see society continuously function as a whole rather than as a group of individuals trying to assert their own rights. There are no contingency fee arrangements and no amicus briefs. Scandinavian lawyers are paid by the hour with fee guidelines established by the various bar associations. Depositions are also an unknown concept and lawyers, as well as the general public in Scandinavia, find it difficult to comprehend this kind of pre-trial evidence gathering when 76 occasionally faced with American litigators.

72 L. K. Moyer, The Mentally Abnormal Offender in Sweden: An Overview and Comparisons With American Law, 22 AM J. COMP. L., 71, 104 (1974). 73See, eg., Swedish Code of Procedure ch. 13, art. 17, Chapter Norwegian Code of Procedure, art. 219. 74The Scandinavian Codes of Procedure contain no exclusionary rules of evidence, hence the conclusion that everything is admissible. COMPARATIVE LAW, supra note 7, at 424. See also, Swedish Code of Procedure, ch. 35, art. 1. 75See, eg., Swedish Code of Procedure, ch. 43, art. 6; ch. 43, art. 10; Norwegian Code 76of Procedure, art. 189. At least one Scandinavian country, Sweden, has passed a domestic law blocking compliance with American discovery orders, otherwise permitted under the 1970 Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. See COMPARATIVE LAW, supra note 7, at 446 n. 84. The University of Miami School of Law is presently the only American law school offering a program in comparative trial litigation. Often, this is the only hands-on experience Scandinavian law graduates have with trying a case utilizing American techniques and procedures. Overcoming cultural differences presents the greatest difficulty to adjusting to United States litigation practices. The cultural differences are sharpest in such procedures as witness interrogation, questioning prospective jurors, or generally objecting to opposing counsel. Scandinavians frequently describe this behavior as "abrasive" or "rude." Spring 19891 The Scandinavian Legal System

While American criminal law and procedure is separate and distinct from other areas of law, the Scandinavian approach is otherwise. Criminal and civil cases are heard in the same kind of informal hearings in the same courts. Scandinavian codes, with the exception of the Norwegian code, combine procedure for both. The judge and his council of lay assistants will give a criminal defendant time to present his case. Although the term "jury" is used in Scandinavian literature,77 this reference is not comparable to a jury in the common law or continental system. These laymen consider both questions of 78 fact and law, and when in agreement they can overrule the judge. In criminal cases, the jury participates in the determination of guilt and the meting out of punishment. In Denmark, only the jury determines guilt and the decision cannot be overruled by the judges of a higher court when an accused is acquitted. A criminal suspect is first investigated by the police and brought to a preliminary hearing where he must either be indicted or set free.79 The concept of indictment by a grand jury is unknown. The Swedish prosecutor has considerable discretion in dropping charges after prosecution has already begun, if she feels that the "public point of view" warrants this for an equitable solution of the matter. It is impossible for a Scandinavian defendant to be acquitted on a procedural error alone.80 The American system of plea bargaining is also an unknown concept in Scandinavia, as is the juvenile justice system. Individual rights are protected in Scandinavia. The principle of innocence until proven guilty is not specifically spelled out in Scandinavian codes, but the burden of proof falls on the Scandinavian prosecutor. The prosecutor must prove the elements of the case beyond any reasonable doubt, as in the United States. Thus, an individual's

77NORWAY INFORMATION 4, (Royal Norwegian Ministry of Foreign Affairs ed.); Dan. Const. Act, art. 65.2. The Finnish Legal System, supra note 18, at 93. The closest a Scandinavian jury comes to the American form is in Swedish freedom of the press cases. 78Finnish Code of Procedure, ch. 23, art. 2; Norwegian Criminal Code of Procedure, art. 328; Danish Code of Procedure, art. 903; Swedish Code of Procedure, ch. 29, art. 3. 79In an effort to agree with Central European standards, the newly revised Finnish Penal Code, which took effect in January 1989, now provides for a seven-day limit. The Norwegian Criminal Code of Procedure, art. 183, sets the time at "the soonest within 24 hours, if at all possible", while the Swedish Code (ch. 24, art. 5, 12) mandates a five-day limitation. 801n the absence of any statutory mandate to the contrary, this statement has been held to be true. Arizona Journal of International and Comparative Law [VoL 6.181 rights are felt to be adequately protected under the umbrella of this presumption. Additional protection is provided by an accurate police investigation, the integrity of the prosecutor, the court in its consideration of the evidence, the attorney for the accused and the legal procedure as a whole. Scandinavian law does not make an inquiry into whether an accused has the mental capacity to stand trial. The rationale behind this is that because the procedure is non-adversarial the defense attorney and the court are considered adequate to protect the interests of even an incompetent defendant. After the verdict, however, an inquiry will be made into a possible connection between a defendant's mental state and the offense committed, so that the court can create the proper sanction. Scandinavian law does not specifically guarantee a right to medical or psychological treatment for criminal defendants. Yet, jurists3l in those countries state that this is such an obvious, implied right that it does not need to be specifically argued. With regard to punishments, it should be noted that the death penalty has been abolished in all of Scandinavia. Fines are a common sanction, which in some instances may be imposed by the chief of police. Generally speaking, the size of a fine is determined in proportion to the payor's income. The main goal of penalties in Sweden is to rehabilitate the criminal. To that end, jail staffs now include psychologists. Denmark was the first Scandinavian country to institute community service as a penalty. Sweden has also adopted this type of penalty. Swedish sentences are traditionally the lightest in Scandinavia, and they are also lighter than punishments in the United States and leave the court with considerable discretion. Take the crime of rape for instance. Normally, the penalty is "at least two and no more than ten years" in prison. But this is qualified by the court's discretionary power to give the criminal "at most four years" if the rape is considered less grave "in view of the woman's relationship to the man" or "for some other reason. '82 Indigents are generally given free counsel, both in civil and criminal cases.83 If the accused is convicted, he may be ordered to repay the

5 82Moyer, supra note 72, at 91. 8 Swedish Criminal Code, ch. 6, 1. As a comparison, the Finnish Criminal Code, ch. 20, 1, until a decade ago, provided for ten years of hard labor for the same crime. Although that penalty is now abolished, it remains in the code as a reminder that 83Finnish sentencing guidelines are still harsher than in Sweden, Finnish Code on Free Trials, art. 1.1. FINNISH LEGAL SYSTEM, supra note 27, at 76; Swedish Code of Procedure ch. 12, art. 1, ch. 21, art. 3, ch. 21, art. 5; Swedish Statute on Legal Aid (SFS 1972:429). Spring 19891 The Scandinavian Legal System costs for his defense.84 In civil cases, the norm is that the loser also pays the litigation expenses of the prevailing party. A novel item developed in Sweden is litigation insurance, which is tied to a homeowner's policy. This ensures payment of litigation expenses for the policy holder.

VII. LEGAL EDUCATION AND THE LEGAL PROFESSION

In order to understand the legal thinking of a foreign country, one must consider its legal educational system. Law studies in Scandinavia are entirely professional as opposed to vocational. Americans frequently claim that Scandinavians enter law school "directly out of high school," and, therefore, their first law degree, an LL.B. instead of a J.D., is an "undergraduate" degree. This is neither a fair nor an accurate statement. A Scandinavian who has finished what is essentially high school, and completed what is comparable to the German Abitur exam, may become a first-year college student in the United States. But if he chooses instead to enroll in law school in his home country he will, upon graduation, qualify as a candidate for a United States master's degree in law. The rules and regulations of the American Bar Association and the American Association of Law Schools specifically state that a graduate of a foreign law school is admissible to a graduate program of a U.S. law school.85 The lack of a college or undergraduate degree in the American sense, is not an issue. Such a master's degree, which supercedes a J.D., even qualifies a Scandinavian as a candidate for the bar in some jurisdictions. 86 Therefore, it is not a rational argument that the legal education in Scandinavia is somehow "undergraduate" or inferior to American legal education.

84Finnish Code on Free Trials, art. 21; Swedish Code of Procedure ch. 18, art. 1. 85A law school may admit with advanced standing and allow credit for studies at a law school outside the United States if ". .. (iii) the admitting school is satisfied that the quality of the educational program at the prior school was at least equal to that required for an approved school." ABA Standards for Approval of Law Schools and Interpretations, April 1985. Currently, there are approximately forty-five U.S. law schools admitting graduates of foreign law schools to their master's programs. Information from DIRECTORY OF FOREIGN GRADUATE PROGRAMS, SECTION OF FOREIGN GRADUATE PROGRAMS, AMERICAN ASSOCIATION OF LAW SCHOOLS (C. Green-Gonas, ed.), 1989. 86For a listing of partial requirements for admission to the state bars, see A REVIEW OF LEGAL EDUCATION IN THE UNITED STATES (American Bar Association 1987). The most popular jurisdiction among foreign graduates is New York. Other choices are, inter alia, Alaska, D.C., Michigan, and Pennsylvania. Arizona Journal of International and Comparative Law [Vol 6.181

On an average, law school takes over five years. But ardent students can shorten this time by not attending all classes and concentrating on self-studies instead. The problem with this system is that students learn few practical skills and many students are both inept and apprehensive about presenting an argument, whether oral or written. Concepts such as take-home exams, mock trials and moot courts are generally unknown. At the end of Scandinavian legal education there is no bar exam; once a student has completed his course work with passing grades, he is allowed to accept clients. However, in order to call himself an "advocate," he must become a member of the bar. This requires a practical training period of varying lengths and also the fulfillment of certain other formalities, such as an exam, minimum age, payment of dues, etc. The Scandinavian bar associations do not offer or require continuous legal education similar to that in the United States. Thus, lawyers are frequently hesitant to be known as specialists in an area. Finally, like many other civil law countries, the duties of a notary public may only be performed by a professional lawyer.

CONCLUSION: SCANDINAVIAN LAW AS A SYSTEM SUI GENERIS

A significant question still remains unanswered: how should Scandinavian law be labeled? Does it fit into the civil or the common law rubric? Is it perhaps a hybrid? The answer may be evident to some readers and not to others.87 Since it would take a whole thesis to first establish a clear and unambiguous definition of the two legal systems, if indeed the choice has to be between the two, the task at hand is an impossible one. Because Scandinavian law is largely statutory and because of how it developed, few jurists can argue against its resemblance to civil law as we generally know it.88 But there are also several common factors between the Scandinavian system and the traditional common law system.89 There are few factors which might give us some further insight. The equity principle is, as we previously saw, expressed by certain terms of art in various statutes. Yet judges

87Sundberg, supra note 38, at 184. 88At least one authority puts Scandinavian law under the general heading of the "Romano-Germanic Family." See, R. DAVID & J.E.C. BRIERLEY, MAJOR LEGAL 89SYSTEMS IN THE WORLD TODAY 112 (1968). L.B. ORFIELD, THE GROWTH OF SCANDINAVIAN LAW xii (1953). Spring 19891 The Scandinavian Legal System are aware of the fact that they must apply the rules as laid out in the statutes before resorting to any personal judgment. Swedish and Finnish Code books, in their introductory pages,90 print forty-three rules for judges. These judicial rules are now over four centuries old. Although these rules never became statutory law, it may be presumed that they reflect some degree of binding guidance on the judiciary. A Scandinavian lawyer, however, does not have to look far to locate a reference to these rules in legal decisions and more than once an attorney from Scandinavia has claimed a legal victory by invoking one of the rules.91 Furthermore, the equity principle is now firmly established in the language of modern statutory law, most notably in the Scandinavian Codes of Civil Procedure. Hence, it is not difficult to point out that Scandinavian law bears a certain resemblance and proximity to common law. But Americans must remember that Scandinavian judges can only interpret, not create, law. On the face of it, Judicial Rule 892 brings Scandinavian law closer to the Romano-Germanic group of legal origins in that it provides for a "good and amenable judge" to set aside a "good law" when the circumstances at hand so dictate. In other words, general provisions may prevail over special provisions. But this dictum is in direct contrast to the doctrine taught by Scandinavian law schools: lex specialis derogat lex generalis, that special rules prevail over general rules.93 At the outset it was established that there was no intent or interest in seeking a conclusive answer to a possible classification of the Scandinavian legal system. Legal scholars fail to agree on where

90SVERIGES RIKES LAG, NAGRA ALLMANNA REGLAR, DAR EN DOMARE SKALL SIG ALLDELES EFTERRATTA (1988). SUOMEN LAKI, MUUTAMIA YLEISIA OHJEITA, JOITA TUOMARIN TULEE TARKOIN NOUDATTAA (1987). 91Based on personal conversations with practicing attorneys in Scandinavia, Lars Nysten of Helsinki, Ruth Anker Hoyer of Oslo and Copenhagen, Mats Lekman of Stockholm. 92See, supra note 90. 93Most recently communicated by Mats Lekman, LL.M. graduate of the University of Miami School of Law, May 1988. Arizona Journal of International and Comparative Law [Vot 6:181

Scandinavian law fits. 94 A better description might therefore be that of a system sui generis, by itself, or as claimed by the Swedish Government, a "half-way house between the Continental European and Anglo-American systems."95 In the end, although the question on how to classify the Scandinavian legal system matters more to legal scholars than it does to practitioners, 96 it is no less important to make the attempt.

94 Sundberg, supra note 38, at 204, argues that there is "no room for any doubt" that Scandinavian law is part of the civil law system. Particular reference is made to page 204, n. 2, where he discusses both the opposing view and that of scholars willing to compromise. See also, Gomard, supra note 4, at 29: "[t]here is no intelligible answer." Danish law "cannot be classified as belonging to any of the well-known families of law." National Reports, supra note 40, D-27. To provoke further discussion, however, see Malmstrom, The System of Legal Systems, 13 SCAND. STUD. L. 127 (1969). 95Fact Sheets on Sweden, supra note 40. See also, F. Schmidt, supra note 38, at 134. One recent Danish text-book draws the same conclusion: 0. LANDO, KORT INDFORING I KOMPARATIV RET 1.000 (1986). However, R. DAVID & J.E.C. BRIERLEY, supra note 88, at 117, take exception to this and claim it is "difficult to find any element which would lead to distinguishing an autonomous ... 96Scandinavian group." Gomard, supra note 4, at 33: "... not [a] meaningful [question] ......