It is customary to divide the legal systems of the Scandinavian countries into two groups. The first group includes Denmark, Norway and Iceland, whose law historically developed on the basis of almost identical compilations of Danish and Norwegian law made in the second half of the 17th century. In spite of the fact that in accordance with the Friedrichsgam’s peace treaty of 1809, which ended the Russian-Swedish war of 1808-1809, Sweden lost Finland, the influence of Swedish law in that country remains significant up to the present day.
The interpenetration of the legal systems of these two groups is obvious. This is due to the following reasons:
1) the long mutual historical ties and the ethnic proximity of these states;
(2) The almost total absence in all these countries of the reception of Roman law, which had a considerable influence on the development of the legal systems of continental Europe;
3) The absence of any codes systematizing individual branches of law, as was done in the Romano-Germanic legal family;
4) the process of unification of Scandinavian law, which has been going on for over 100 years.
An analysis of the modern legal systems of the Nordic countries shows some commonalities between the Nordic and Romano-Germanic legal systems. First of all it is manifested in the similarity of the sources of legal regulation. In the Nordic countries the law is the main source of law, and the courts formally cannot, by resolving a particular dispute, create legal norms. This is where the most important difference between the Scandinavian and common law systems emerges.
At the same time, it must be admitted that the role of the courts in the Nordic countries has traditionally been very significant. Never here has the function of the judge been confined solely to the application of the law. The judge in the Nordic countries has great freedom of interpretation of the provisions contained in the laws and treaties.
In Sweden, the lower courts in almost all cases strictly follow the decisions made by the higher courts, first of all, decisions of the Supreme Court, recognizing them as authoritative presentation of the applicable law.
The role of jurisprudence has been growing considerably in recent years.
In Sweden, under a law of 1971, the Supreme Court hears such cases as are of interest to establish certain lines of law enforcement. It thus recognizes that the decisions of the Supreme Court are binding on the entire judicial system. Ultimately, the expansion of the discretionary power of judges leads to the increasing practice of including vague norms in laws. In Sweden, they are called “general reservations. Swedish lawyers themselves assess the development of the legislative technique of “general reservations” as. “a kind of delegation of legislative power to the judiciary.” This trend can be clearly seen in the evolution of the system of sources in all the countries of the Romano-Germanic family.
Scandinavian law uses the general legal concepts of Romano-Germanic law. The system of legal training is similar to the system of higher legal education adopted in continental Europe. All this is the result of the influence of Roman and later French and German law.
In the first decades of the nineteenth century, the French legal system had a strong influence on Northern European law.
1? In 1826 in Sweden there was even a draft of Civil Code, modeled on the Napoleonic Code, but it never became law.
At the end of the 19th and at the beginning of the 20th century the needs of modernization of law made the Scandinavian lawyers turn to the experience of Germany. Practically all Swedish law professors received their professional training in German universities during this period. However, the theoretical views of the Pandectists were not taken up by Scandinavian lawyers. The Nordic countries rejected the codification of civil law on the model of the GGU, because the latter contained many abstract notions, alien to the traditional functional approach to the law of the Nordic jurists. A sociological direction soon prevailed, and the theory of social functions, developed mainly by French jurists, received support here.
A number of characteristic features of Scandinavian law distinguish it from the Romano-Germanic family.
First, Scandinavian law does not know the division of law into public and private, or into branches. In this, it is similar to the common law family. Secondly, Nordic law is not codified. Formally in these countries the laws that originally covered all the normative material continue to operate, but for the reasons mentioned above they cannot in any way be identified with the codifications in the countries of the Romano-Germanic legal family.
Some elements of the legal systems of the Scandinavian countries, perhaps, are closer to the common law system than to the Romano-Germanic legal family. In particular, the legislator in the Nordic countries has for a long time avoided using norms with a high level of generalization. Civil and criminal procedures are governed by the same rules.
What unites Scandinavian and common law is a pragmatic approach to law, legal notions and constructions. This last circumstance explains to a certain extent the success enjoyed in the Nordic countries after World War II by the American concepts of the legal realism school. The growing influence of American law can also be seen in the recent past when certain legal structures and concepts from American law have been borrowed, for instance in the fields of tort liability, insurance, etc. The methods of teaching law in Scandinavian universities are increasingly reminiscent of the American system of legal education.