The Scandinavian Approach to Property Law, Described through Six Common Legal Concepts

Author:Claes Martinson
Pages:16-26
 
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16 JURIDICA INTERNATIONAL 22/2014
Claes Martinson
Associate Professor
University of Gothenburg
The Scandinavian Approach
to Property Law, Described
through Six Common
Legal Concepts
1. Contribution to the European project?
It is interesting to see other lawyers’ reactions when they encounter the Scandinavian approach to property
law.*1 In fact, it is interesting to see the reactions of Scandinavian lawyers when they realise that we have an
approach that others react upon. One purpose with this article is to provoke more of these reactions. Ideally,
doing so could lead to some re ections on what we all do as property lawyers. The Scandinavian approach is
not only a matter of legal culture. It also brings a perspective that can be useful for the understanding of law
and what law is. In a time of far-reaching internationalisation of law, thoughts such as these can be rather
helpful and contributing. One example of this is that the Scandinavian approach to property law played a
role in the Draft Common Frame of Reference (DCFR) project. The approach served as a work method in
development of the DCFR rules on transfer of ownership.*2
Regardless of the methodological contribution, the DCFR rules did not come to share the characteris-
tics of the Scandinavian approach.*3 This illustrates that the approach can be of use while not governing all
choices. For avoidance of misunderstanding, it might be necessary to stress this fact.*4 I am not a prophet
proclaiming the Scandinavian approach better than others. My ambition with this article is just to explain
a perspective on property law that, in the ideal case, might contribute with some re ections on what we all
do as property lawyers.
One thing that property lawyers do is to involve objects in their argumentation. Property objects are, for
obvious reasons, important in property law. All objects are however, conceptual. Therefore every property
lawyer faces the risk of employing conceptual logic, for better or worse. The preference in the Scandinavian
approach is very much against conceptual logic. A very general description of the Scandinavian approach is
that it is relational to a fairly great extent. Scandinavian property lawyers deal with relations and keep each
1 I have illustrated some typical reactions in C. Martinson. Ejendomsrettens overgang – Norden kontra verden. Nordiska
Juristmötet 2008. See http://jura.ku.dk/njm/38/martinson-claes/.
2 W. Faber. Overview of content and methodology: Book VIII of the DCFR. – The Edinburgh Law Review 2010 (14)/3, p. 502.
3 The DCFR uses a unitary structure; see Book VIII, Article 2:101 and 2:201.
4 It is, of course, up to the reader to judge what I do. See, for example, the reasonable opinion of Professor G.L. Gretton.
Review. – The Edinburgh Law Review 2009 (13), p. 170. For whatever the knowledge of it is worth, my intention is sincerely
what I say it is.
http://dx.doi.org/10.12697/JI.2014.22.02

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