European Harmonisation of Civil Law from a Nordic Perspective

Author:Lena Sisula-Tulokas
Position:Professor, Universityt of helsinki
Pages:30-33
SUMMARY

1. A Nordic perspective? - 2. Legal transplants - 3. More or less organised co-operation - 4. Readiness to accept a European harmonisation of civil law

 
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Lena Sisula-Tulokas

Professor, Universityt of helsinki

European Harmonisation of Civil Law from a Nordic Perspective

1. A Nordic perspective?

According to the title of my paper, I am supposed to provideaNordic perspective on European harmonisation of civil law. I am sorry to disappoint you - such a promise is impossible to fulfil. The ongoing discussion in the Nordic countries shows almost as many perspectives as there are speakers1. Opinions differ strongly, with some being critical and others enthusiastic. I can only offer you my personal views and perhaps feel a bit sorry for my colleagues who are not presenting their views here.

2. Legal transplants

Let me begin from a less controversial angle, with some historical facts. Here I will take Finland as an example: a small, rather young nation on the periphery of Europe. In many ways, we in Finland share our history with our neighbours: the Scandinavian countries, Estonia, and Russia. For more than 700 years, until 1809, Finland was a part of Sweden, and the intellectual heritage of this time is still strong in our legal culture. One of the real pearls of our common legal tradition is Olaus Petri's Guidelines to the Judges, dating back to the beginning of the 16 th century2. We still print these guidelines on the first pages of Swedish and Finnish law books. They contain elements from the old Roman law, from Jewish legal tradition, and from ius commune, as well as German and Swedish (Germanic-family) traditions. They provide a true mixture of legal transplants and local tradition. The rule that is my personal favourite is number 9:

What is not just and fair cannot be law either, for it is on account of the fairness that dwells in the law that the law is accepted.

From 1809 until our independence in 1917, Finland had an autonomous position as a grand duchy in connection with Russia. Even in the Russian era, we had our own parliament, a separate currency, and our own legal institutions. The old Swedish laws were still followed. In many of the new Finnish laws from those days one can trace a strong European influence. One of the most obvious examples is the Maritime Code of 1875, which replaced the old code from 1667, originally written by a Dutchman living in Stockholm. The new Finnish Maritime Code was firmly anchored in the new Swedish, Norwegian, German, and Russian legislation.

Since our independence, we have behaved more or less in the same way: we have been borrowing ideas from here and there, albeit mostly from Sweden and the other Nordic countries. For instance, we managed many decades without a Sales of Goods Act because we used the Scandinavian Sales Act and called it trade usage. To put it bluntly, throughout our legal history we have never been afraid of stealing ideas, of using legal transplants, whenever suitable.

3. More or less organised co-operation

At the same time, however, another characteristic feature of the Nordic legal culture is a more or less organised co-operation between our countries. It all began with the first Nordic Lawyers' Meetings in 1876. Since then, these meetings have been held regularly. Today, they are huge social happenings where about a thousand lawyers congregate. These meetings still strengthen the feeling of belongingness, as in the very beginning.

At the meeting in 1948, the Danish professor Fr. Vinding Kruse presented his first draft of a Nordic civil code, which gave rise to much discussion. He presented his second draft in 1962. The draft covered many of the same subjects that the Study Group has been working with but also addressed family and inheritance law. The code consisted of almost 1,500 articles3. We all know that these drafts never led to a common Nordic civil code.

As a result of the long-standing Nordic co-operation, many of our basic legal acts, especially within civil law, are more or less common. Take, for instance the Contracts...

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