Legal Autonomy versus Regulatory Law: Customary Law in East Nordic Countries
Modéer, Kjell Å., Texas International Law Journal
INTRODUCTION AND CONTEXT .................... 393
I. LEGAL CUSTOMS AND CUSTOMARY LAW IN SWEDEN: A DEEP STRUCTURE PERSPECTIVE .................... 395
II. CUSTOMARY LAW AUTHORIZED WITH THE HELP OF THE COURTS .......... 396
III. CUSTOMARY LAW IN CONSTITUTIONAL LAW .................... 398
IV. CUSTOMARY LAW IN FAMILY LAW ..................... 399
V. CUSTOMARY LAW IN REAL PROPERTY LAW ..................... 400
VI. CUSTOMARY LAW IN THE LAW OF SALES ..................... 403
VII. RENAISSANCE FOR CUSTOMARY LAW IN LATE-MODERN LEGAL CULTURE? ..................... 403
INTRODUCTION AND CONTEXT
Legal romanticism is a fertile metaphor to characterize the context for the development of customary law, even in Sweden. The German Historical School (Historical School) in the nineteenth century identified and emphasized customary law as a fundamental legal source,' and, in the inter-war period of the twentieth century, this construct remained a relevant one for legal and jurisprudential discourses in Sweden. In modern civil law countries (such as Sweden), however, the introduction of a democratic parliamentary system and a modern constitution that emphasized the principle of the people's sovereignty changed attitudes towards customary law as a construct of an autonomous legal source. The modern Swedish welfare state of the twentieth century was extremely reluctant to recognize customary law as an autonomous legal source. In 1974, the Swedish Instrument of Government (Regeringsformen) stated that "all public power in Sweden proceeds from the people" and thus politically prepared works came to be regarded as the main and dominant legal source.2 Regulation by the state became the dominant modern parliamentary instrument for legal reform throughout legal modernity. The possibilities for the judicial branch to act in favor of customary law in this context were negligible.1
The Historical School regarded customary law and the influential legal commentaries of academic lawyers as the two legal sources that differed from the written law.4 Both are given low status within Swedish legal modernity. Even authoritative and respected Swedish handbooks on legal sources mostly neglect these two legal sources.' The situation, as Peter 0rebech describes, is quite different in Norway and the other West Nordic countries."
From a meta-perspective, the Nordic countries traditionally have been regarded as one distinct legal family or Rechtskreis,1 Historically, these countries have been divided into two parts: the West Nordic countries with Denmark, Norway, and Iceland and the East Nordic countries with Sweden and Finland." Sweden and Finland were connected within the Swedish kingdom from the medieval times until 1809, when Sweden lost Finland to the Russian Empire.'' So, Sweden and Finland, to a great extent, have a common legal history, including the Swedish Code of 1734 (1734 Code),"' which is still formally in force in those countries. For centuries the positivist view on the 1734 Code has remained stable during continuous legal development, and legal reform was important for the further development of the legal cultures in these two countries. This is related to the Swedish language, which up to the mid-twentieth century was also the language of the bourgeoisie and the legal elite in constitutionally bilingual Finland."
In the late nineteenth century, starting in the 1870s, legislative harmonization also became a key phrase within Nordic legal reform, focusing on the unity and homogeneity of a country's law. Since the early 1970s, however, the differences in the legal cultures have been emphasized more than the similarities. For this cultural change, the political and legal development in Europe has been an important context. The identification of the national legal cultures of the Member States within the European Union has been an important issue due to the paragraphs on cultural diversity in the Maastricht Treaty of 1992. …