Western Scandinavia: Exit Bürgerliches Gesetzbuch-The Resurrection of Customary Laws

By Ørebech, Peter | Texas International Law Journal, Summer 2013 | Go to article overview

Western Scandinavia: Exit Bürgerliches Gesetzbuch-The Resurrection of Customary Laws


Ørebech, Peter, Texas International Law Journal


Summary

The Platform and the Puzzle.................... 406

I. The Role of Customary Law in Denmark & Norway: The Platform ....................407

A. The Ancient Codification and the Law Books.................... 408

B. Public and Civil Law: The Legal Theory.................... 410

C. The De Facto Pillar.................... 411

D. The Structure of the Competency and Entitlement Systems.................... 414

E. The Role of Customary Law in West Scandinavian Jurisprudence.................... 415

II. The Present De Lege Lata Situation: Civil and Public Law.................... 416

A. Civil Law.................... 417

1. Contract Law.................... 417

2. Property Law.................... 419

B. Public Law.................... 422

1. Customary Law as Entitlement for Statutory Laws.................... 422

2. Contradictory to Written Law.................... 423

3. Filling in the Gaps.................... 424

4. Code Annulment Results in Customary Law Resurrection ....................424

III. The Western Scandinavian Customary Law Prerequisites.................... 426

A. Prolonged Practice.................... 428

B. Continuity.................... 429

C. Opinio Juris Necessitatis.................... 430

Conclusion.................... 433

The preservation, during a number of centuries which it would be vain to calculate, of this great body of unwritten custom, differing locally in detail, but connected by common general features, is a phenomenon which the jurist must not pass over.

Henry Sumner Maine1

The Platform and the Puzzle

The western Scandinavian legal system builds on a basic understanding of law as omnipresent and underlying all social behavior whether it is written or non-written, codified or customary. For every dispute there is a legal solution. Thus, one does not experience any gaps of law. The positivist diversity between moral and ethical norms and legal norms never found any spokesperson in ancient times' Denmark- Norway. The common understanding seems to be that since the legislature would never prescribe unjust or unreasonable solutions, the ethical norms of society are neatly intertwined with the legal norms.2 This implies that legal decisions are moral decisions. The Scandinavian populations are societies based upon legal, normative structures. Inter partes relations are regulated by subtle signs of these normative structures. The Scandinavian societies are lawful, and not lawless, societies.

This commentary considers the following: Part I considers the role of customary law in Danish and Norwegian dispute settlement, custom's justification in general and as a historical fact, and whether modern Scandinavian codes abolish ancient customary laws and prevent new customary laws from developing. Is custom or usage a valid source of law per se, independent of whether or not it is entitled to be so by the codification? Or is it the other way around, where customs only qualify as valid law if not otherwise found in the legislation? Part II discusses the de lege lata situation-what role does customary law have to play in the civil and public law of southern and western Scandinavia? Part III asks what are the prerequisites of customary law? Or more precisely, what are the requirements, listed by the courts, which allow customs to transform into customary laws?

An interesting issue not fully dealt with in the Article is this procedural puzzle: How to acknowledge that subtle signs of normative structures are "the law of the land?"3 And are these norms valid law until amended by the legislature? Or is it the other way around -no custom or usage is valid law before a court justifies it? Alternatively, could a referendum do the job?

I also do not cover Danish law harmonized by the European Union (EU). This federal part of "the law of the land" is, according to this Author's interpretation, merely a 500-year-delayed introduction to the 1495 German reception of the Roman Law by Deutsche Reichkammergericht, which was valid no further than up to the Danish borderline of Slesvig-Holstein in Rendsburg ("Eidora Romani Terminus Imperii").

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