Scandinavia, Harmonization of Law

by Anneken Kari Sperr

1. Definition and scope

The term ‘harmonization of law in Scandinavia’ includes procedural as well as cultural aspects. First, extensive collaboration of the Nordic countries in the course of their respective legislative processes has led to a coordinated enactment of laws demonstrating the common objective of a maximized harmonization of the law. The second aspect reflects the Scandinavian legal culture: various contacts, common points of interest and legal networks between scholars, lawyers working in the civil service and private attorneys have created a vibrant community of Scandinavian jurists. Over the course of the past 150 years, both aspects have—in the area of private law—led to the enactment of a significant number of statutes that are virtually identical. In addition to this they have created the very legal pillars and traditions that allow us to regard Nordic law as a family of law in itself (legal families), a Nordic tradition of law within the world’s legal systems.

Characteristic of the harmonization of law in Scandinavia is that the development is based on common values, the virtual absence of any language barrier and personal contacts. It is institutionalized only to a very limited extent although some common institutions do serve a valuable purpose.

Recently, the harmonization of law in Scandinavia has been facing various challenges, the most pressing one being the process of European integration: due to its supranational character, European law (European Union) is sometimes seen as a threat, or at least as an obstacle, to the legal collaboration of the Nordic states. Others, however, view the Nordic states’ membership in the EU or the European Economic Area (EEA) (European internal market) as an opportunity to renew the existing collaboration as well as to develop new forms of cooperation.

2. Legislative collaboration

The second half of the 19th century marked the beginning of a close collaboration of the Nordic states in the course of their respective legislative processes, or more precisely during the creation and adaptation of common statutory law.

At the first Nordic jurists’ conference in 1872, well-known and successful legal scholars and lawyers from Sweden, Denmark and Norway gathered to develop specific common legislative initiatives for the first time. Finland, having gained its independence from the Russian empire in 1918, later joined actively in the legal collaboration, whereas Iceland, due to a lack of resources, was frequently unable to do so but still managed to benefit from the results.

Apart from linguistic and geographical proximity and common political ideals, throughout the last 150 years Nordic legal collaboration has been shaped, for the most part, by the following four factors: first, Scandinavianism—a 19th-century political movement that strove for a unification of the Scandinavian nations—had, despite its formal decline, created a romanticized belief of a Nordic legal heritage that was to be revived and further developed. This conviction was based on actual cultural similarities that can be traced back to the Old Norse period (1050–1350). In addition, the legal systems of Denmark and Norway (and to a lesser extent Iceland) on the one hand, and those of Sweden and Finland, on the other, displayed various similarities. Thus, already at the end of the 19th century, a certain degree of harmonization of the western and the eastern Scandinavian legal tradition was evident. Secondly, the cooperation of these, rather small, nations facilitated an improved legislative process and a noticeable reduction of the costs involved. Thirdly, a common legal basis was considered to be preferable, cost-saving and effective with regard to commerce between the Scandinavian states. Finally, the process of the harmonization of law in Scandinavia, especially at the end of the 19th century, displayed elements of a countermovement against an increasing level of internationalization: Scandinavian jurists, facing the pressure caused by the new European movements, made a conscious decision in favour of a Nordic legal tradition as an alternative to continental European civil law or common law traditions. This is also due to the fact that Roman law had only been received to a limited extent in Scandinavia, in part because of the small number of universities (reception). At the same time, however, Scandinavian legal scholars were fascinated by the developing harmonization of law in the German Empire.

For the most part, there was no need to establish firm guidelines or special institutions concerning Nordic legislative cooperation. Nevertheless, Arts 2 to 7 of the Treaty of Helsinki (1962) do provide for a certain degree of compulsory cooperation; however, the actual provisions remain vague and are rarely mentioned. Increased political control over legislative cooperation was achieved through the establishment of the Nordic Council in 1952 and the Nordic Council of Ministers in 1971. Over the past decades, the Nordic Embetsmannskomiteen for lovgivningssaker (Official Committee for Legislative Matters), consisting of representatives of the respective national Ministries of Justice, has proved to be the most important of the committees; among its responsibilities are the preparation of the annual Conference of the Nordic Ministers of Justice as well as the establishment of special working groups, the most important of which have been the panels of experts concerned with family law and custody as well as criminal law.

For each individual area of law, the aim of Scandinavian legislative cooperation may vary; there is, however, the common objective of the creation of uniform laws which display the same legal structure and use the same terms. A great amount of harmonization can be seen in central parts of private and family law, whereas in other areas the legislatures have confined themselves to the harmonization of basic legal principles and particular provisions, or solely to an exchange of information regarding national legislation in the hope that this may lead to analogous legal solutions.

The many successes of the legislative cooperation include, in chronological order, the bills of exchange acts in the 1880s, the maritime law acts in the 1890s and the common sales, contracts and commission acts at the beginning of the 20th century. The 1920s marked the creation of marriage acts, insurance contracts acts and transport law acts; the 1930s the creation of bond and cheque acts, amendments to the maritime law acts and a convention on the mutual recognition of judgments and choice of law in the fields of marriage, inheritance and bankruptcy law. Common principles of liability law and damages were established during the 1940s; acts with respect to copyright, trademark rights and patent law, and a convention on the enforcement of penal judgments during the 1960s. Common stock company acts were created during the 1970s. In the 1980s, a proposal for a new common act on the sale of goods was compiled but only partially implemented. An extensive revision of the maritime law acts took place during the 1990s.

The many Swedish and Danish initiatives seeking the creation of a Nordic Civil Code, however, among them the proposal for a comprehensive regulation of central aspects of private law by the Danish scholar Vinding Kruse in 1948, did not prove to be successful. Also the uniform laws that have been created sometimes display significant variation in terms of detail. There has at no time been any great effort towards legal unification in the area of public law.

Worth mentioning is also a comprehensive comparative study of Nordic family law and the law of succession; commissioned in 1998 by the Nordic Council of Ministers, it led to the 2003 publication of four books on the Danish, Finnish, Icelandic, Norwegian and Swedish regulation of the law of succession, marriage law, child law and the law of custody. Apart from a description of the respective national laws, the focus of the effort was on discussing the requirements for reform and the possibilities of harmonization. In spite of not having led to fundamentally new legislative cooperation, the study is a valuable source of orientation for legal practice, providing important ideas and suggestions for further development.

Since the post-war period, and in particular over the course of the last decades, Nordic legal cooperation has been decreasing. Large-scale projects like the law on the sale of goods (1980s) have been rare and their outcomes lack the prior level of uniformity. In addition, formerly uniform statutes have been subject to national revision and varying statutory interpretations. Examples of statutory revisions displaying the departure from legal uniformity can be seen in insurance law and stock company law.

The decrease in legal cooperation is due to three main factors. First, the role of law and legislation has changed since the post-war period: while the law had previously been seen as belonging to the sphere of legal experts, the notion of law as a policy instrument began to emerge. For this reason, the political aspects of an increasing number of areas of law moved to the centre of attention, leaving fewer areas politically undisputed. Nordic legal cooperation, therefore, came to be seen as an obstacle or drawback to desirable legal development or changes. The second aspect can be seen in respect of resources and in structural changes in the administration of justice: today, every Nordic nation possesses well-staffed organizations that prepare legislative processes. At the same time, a decreasing number of capable jurists are available for long drawn-out work-processes in inter-Nordic legislative committees. Thus, the savings that can be expected from Nordic legal cooperation are lower than in the past. Also, Nordic legal collaboration in the past significantly depended on certain key figures in the administration of justice who created a Nordic legal network in their respective areas of law. Today, such key figures change positions more often and considerably faster, leaving administrative continuity and possibilities for collaboration weakened. Thirdly, the challenges and developments triggered by the European integration processes have led to a decrease in independent Nordic cooperation.

3. The Nordic jurists’ community

Until recently, the Scandinavian legal tradition has proved to be an attractive arena for many lawyers—broad enough to allow for conceptual and qualitative variety, but limited enough to enable actors to gain an overview of their area of expertise and engage in personal contacts. There are practically no language barriers that prevent jurists from publishing in their native languages or from responding to publications in another language, although this applies to Finland and Iceland only to a more limited degree.

The Nordic jurists’ conferences constitute an important forum on both a theoretical and practical level. Since 1872, these meetings have been held at various locations every three years. While the conferences have lost their function as the central arena of legislative cooperation, they are still very popular.

Members of the Nordic faculties of law have always had close personal contacts which have also been maintained through established traditions. Thus, the inclusion of and references to other Nordic countries is customary as well as necessary, in both teaching and legal practice. Doctoral examination boards and commissions appointing professors are required to include a foreign, in most cases Nordic, jurist in order to guarantee common legal standards.

Another bond is constituted through various common law journals, most notably the Tidskrift for Rettsvitenskap (TfR), and journals in the areas of intellectual property rights, public international law, criminal law, legal sociology, criminology and administration (Nordisk Immateriellt Rättsskyld; Nordic Journal of International Law; Retfærd; Nordisk Tidskrift for Kriminalvitenskab; Nordisk Administrativt Tidsskrift). In addition, the University of Stockholm publishes the annual Scandinavian Studies in Law.

Generally, law students do not spend a semester abroad at another Nordic university; some degree of exchange, however, is achieved through the Studentjuriststevnene. Since 1843, this week-long event occurring every three years has provided professional and social exchange of about 60 students studying at Nordic universities. Similar events include the Nordic human rights moot court as well as the annual meeting of student representatives at the Nordisk Uke (Nordic Week).

In practice, legal collaboration is limited to cooperation agreements between the large law firms of the Nordic countries. Although there is a set of Nordic law reports, it is rarely used, and most decisions do not refer to the legal practice of the neighbouring countries.

A great deal of cooperation has been established in the area of maritime law: in addition to close legal cooperation in this field, the Nordic council of ministers established the Nordic Institute of Maritime Law (Nordisk institutt for sjørett (NIFS)) in Oslo. This institute is attended by visiting researchers and students from the various Nordic countries, is host to seminars for Scandinavian judges and publishes its own widely used collection of judgments in maritime law.

In summary it can be said that there is far more exchange and professional cooperation among Nordic lawyers than is the case in other professions.

4. Scandinavian harmonization of law and European integration

Traditionally, international developments in law served as an accelerator to the unification of law in Scandinavia, most notably in the course of the implementation and further development of international treaties. Nevertheless, the process of European integration does not only demonstrate a challenge, it is often perceived as a threat rather than the opportunity for a renaissance of Nordic legal cooperation. This point of view arises from the particularities associated with the creation of an entirely novel uniform European legal system. The latter differs greatly from Nordic systems, not only in preconditions and aims but also in its institutionalized procedures and outcomes. Apart from the genuinely Scandinavian factors mentioned above (changes in the perceived purpose of law and economic-structural developments within the national administrations of justice), four major factors relating to the Europeanization of law contribute to the decrease in Nordic harmonization of law.

First, Europeanization means that less and less is decided through purely national or Nordic laws. This applies, for example, to consumer law, company law, intellectual property law, transportation law, insurance law, and partly also to environmental law and employment law. To some extent this applies also to those areas where Nordic law and European law overlap as, for example, in the Schengen Agreement, the Nordic regulation concerning passport checks, and cooperation between national police authorities. Thus Nordic legal cooperation is limited to those areas of law that have not yet been, or have only partly been Europeanized such as contract law, the law on the sale of goods and family law.

Secondly, the prospect of future legislative projects of the European Union inhibits Nordic harmonization, as Scandinavian initiatives and the related investment of resources do not seem promising, even if European projects still lie far ahead. For this reason, in the late 1980s a revision of Nordic contract law was brought to a halt by the announcement of the future Council Directive (Dir 93/13) of 5 April 1993 on unfair terms in consumer contracts.

Thirdly, within the Nordic nations the common ideal of a Nordic legal community has shifted towards the aim of a common European legal system. In particular, this applies to Finland which supports the process of European integration more unreservedly and to a far greater extent than Sweden or Denmark. Similarly, but to a lesser extent, this also applies to the EFTA Member States of Norway and Iceland.

Finally, the integration of the European Union’s and EEA’s legal requirements into national law and the current European legislative processes have proven to be very time-consuming and staff-intensive for Member States which means that fewer resources are available for purely Scandinavian cooperation.

Thus the process of European integration only leaves room for continuing Nordic collaboration in two regards. First, those areas of law that have already been harmonized and remain completely or largely untouched by European law can serve as a basis for sustaining further legal cooperation. This opportunity was used, for instance, in the revision of the maritime acts in the 1990s. Secondly, the Nordic countries have collectively declared their intent to cooperate within the European Union and have stated this in several treaties; this includes cooperation in the course of the implementation of European legal requirements and the administration of existing and the shaping of future European law (see eg Statement on entry of Sweden and Finland to the EU (no 28), Art 121 of the EFTA Agreement, Art 33 of the Helsinki Agreement and the programme on Nordic Cooperation of the Nordic Council of Ministers of 1993). Until recently, however, diverging national interests, competitive situations, varying degrees of the Nordic nations’ participation in the European Union, a desire to avoid the formation of a Nordic bloc within the European Union, and frequently also time pressure in the implementation of European law have, among other factors, meant that the possibilities for the Nordic countries to cooperate within the European Union have rarely been taken advantage of.

5. Summary and outlook

While the Europeanization of law has not had any significant influence on the established community of Nordic jurists regarding cultural aspects of the Scandinavian harmonization of law, it has contributed greatly to the decrease in Nordic legislative cooperation. The process of European integration does, however, leave some room for a shift from traditional collaboration towards cooperation with respect to the administration and implementation of European legal requirements. Nevertheless, up to now the Nordic nations have been reluctant to use these opportunities for practical and political reasons. Further developments in this area greatly depend on the awareness of the political actors of those concerned of the value of a continued Nordic harmonization of law, which is viewed in particular by the jurists themselves as a tradition of great importance.

Literature

WE von Eyben, Retssystemet og retsfølelsen (1961); Jan Hellner, ‘Unification of Law in Scandinavia’ (1968) 16 Am J Comp L 88; Henrik Tamm, De nordiske juristmøder 1872–1972: nordisk Retssamvirke gennem 100 år (1972); Gustaf Petrén, Nordiskt lagstiftningssamarbete, Nordisk tidskrift för vetenskap, konst och industri (1985) 405 ff; Ulf Bernitz and Ola Wiklund (eds), Nordiskt lagstiftningssamarbete i det nya Europa (1996); Fredrik Sejersted, ‘Nordisk rettssamarbeid og europeisk integrasjon’ in Johan P Olsen and Bjørn Otto Sverdrup (eds), Europa i Norden —Europeisering av nordisk samarbeid (1998) 214; Peter Lødrup, Nordisk arverett (2003); Anders Agell, Nordisk äktenskapsrätt (2003); Anders Agell, Anna Singer and Peter Lødrup, Nordisk børneret, vol I (2003); Svend Danielsen, Nordisk børneret, vol II (2003); Torstein Frantzen, Harmonisering av familie- og arveretten i Norden—hvorfor det? Tidsskrift for familierett, arverett og barnevernrettslige spørsmål (2004) 236.