Jurisprudential Reception as a Field of Study

• Author: Marju Luts
• Pages: 2-6

Marju Luts

Jurisprudential Reception as a Field of Study

1. Reception in Law and Jurisprudential Reception

In the theory of law, reception is chiefly defined as the transfer of a legal phenomenon of a different legal culture, other area or other period of time to a new legal climate.

Studies of reception underline several conditions which are essential for reception¹. Firstly, is the awareness of the recipient that its activity is truly the adoption of an element of law that is, in a legal-cultural context, hitherto alien (or already forgotten). The matter is further specified on the basis of whether such awareness is characteristic of the whole recipient society or only the initiators of reception. For example, the "simple representatives" of Germanic tribes probably had no idea of the existence of a written legislation on their arrival to the territory of the Western Roman Empire and its vicinity. Equally probable is that they were unaware that the written barbaric legislative systems at that time based on their own traditional law also contained Roman and ecclesiastic norms. On the other hand, there is no reason to suppose that the Germanic kings whose efforts to establish written law were supported by the church would have been similarly unaware of the existence of norms alien to their peoples in those collections of norms. Without a doubt, the pathos of establishing written law was different with different Germanic tribes. The prologues to the barbaric collections of norms² contain evidence of the fact that their rulers were inclined to copy the mentality of the more prestigious Roman culture and its emperors' legislative activities. Consequently, the fact of awareness makes it possible to classify this process as reception.

Voluntariness of the process is also considered an essential condition for reception. No genuine reception occurs if a legal phenomenon is imposed upon another nation by force. In this regard, the establishment of the Napoleonic Code in occupied areas is usually referred to as an example. The Baltic States need not look far for their own examples. Repeal of the whole of former legislation in 1940 and the establishment of Soviet law is one of the clearest examples of imposed reception. Under certain conditions imposed reception may transform into a voluntary process and thus become genuine reception. The areas occupied by Napoleon, where the Code continued wholly or party in force after French occupation, serve as an example. The voluntary nature of this reception is well proved by the struggle waged in the areas of the left bank of the Rhine against Prussian central power³ for the continuation in force of the Code Civil. The Baltic States occupied by the Soviet Union also gradually attained a voluntary or at least reconciled reception of Soviet law. This is primarily true with regard to legal science. Compared to legal practice, the opportunities for the latter to interpret the legislation of the time while partly ignoring its main dogmatic trends were perhaps greater than legal scientists chose to admit. This is especially true concerning the period following the Stalinist dictatorships when scholarship diverging from official ideology did not necessarily mean a prolonged trip to Siberia.

The foregoing does not mean that the transformation of imposed reception into voluntary reception should be an inevitable historical reality everywhere at any time. The countries of Northern Germany for example, re-established their former legislation after the end of Napoleonic occupation. The same may be noted in the Baltic provinces of Sweden which were incorporated into the Russian Empire during the Northern War. This transition was legally formulated by the capitulation of the local estates in 1710 which was affirmed by the Nystadt (Uusikaupunki) peace in 1721. One of the most important demands which the estates presented to the Russian tsar was restoration of their former privileges which had been diminished by the absolutist governors of Sweden.

Legal reception has been classified on the basis of various principles. It is possible to proceed from the reasons which serve as motivation for the transfer of alien legal phenomena. In this regard, veneration reception is one example which occurs if alien norms, institutes or a whole system is adopted for their venerated position and prestige of cultural background. The prestige of the cultures of the ancient Greeks and Romans was certainly an important factor which motivated the reception of Roman law in medieval Europe. An altogether different motivation is the basis for necessity reception which occurs where there is an apparent need for a change of legal system in one culture and another existing culture provides an opportunity to satisfy the need. However, the classification of reception into veneration reception and necessity reception is somewhat contradictory. It is obvious that veneration reception can never occur if there is no need for it in the recipient culture and, in the case of necessity reception, it is only natural that legal phenomena of a prestigious origin would be adopted. Therefore, these aspects do not constitute classes of reception in the strict sense of the word. The venerated status of and need for a transfer of a certain legal phenomenon should therefore be considered essential conditions for reception like the awareness and voluntariness conditions of the process mentioned above.

The distinction between reception and transplantation⁴ made in studies of reception must also certainly be acknowledged. The latter is a process whereby a legal phenomenon transfers to another geographic area or culture together with people. This process occurred when Germanic law reached Western and Central Europe during the Age of Migration. A transfer of the law of a mother country to overseas lands during their colonisation could also be considered legal transplantation. However, such an interpretation of transplantation seems too restrictive. A situation where a norm of another legal culture is established in a different legal climate by enacting legislation regardless of its original implementation background may also be interpreted as a mere transplantation of a legal phenomenon. Transplantation also occurs where a legal theory is taken to another geographical area. As in the case of imposed reception or voluntary reception, an original transplantation may become true reception: of course not among the group or nation which is the carrier of transplantation but among the legal culture surrounding it in the new area. The transformation of transplantation into reception is perhaps of greater significance in the history of legal science than it is in positive law. Therefore, this distinction is important from the perspective of the purpose of this article and will be...