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The Scandanavian Legal System: an Introduction

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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 Rights Copyright © The Author(s) Download date 26/09/2021 20:34:24 Item License http://rightsstatements.org/vocab/InC/1.0/ 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 school- children 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.
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