Comparing legal cultures utdrag by Fagbokforlaget

Søren Koch Knut Einar Skodvin Jørn Øyrehagen Sunde (eds.)

In the present era of internationalisation of law, the purpose of applying legal culture as an analytical tool is, in short, to make different notions of law and how law operates in society understandable to such an extent that they do not form obstacles for cooperation. This approach to legal culture takes it out of a purely academic setting and into the legal world outside the ivory tower. This means taking legal culture out of books and into action. This book aims at supplying the reader with tools to operationalize legal cultural knowledge in the everyday operations of law. In other words, the book you hold in your hands right now is produced with the ambition of managing the unmanageable concept of legal culture, and by this making it applicable when deciding the content of law.

ISBN 978-82-450-2091-5

,!7II2E5-acajbf!

Comparing Legal Cultures

The changes in communication technology have hugely increased the interaction over geographical distances; hence given rise to new kinds of social relations in need of legal regulation by transnational law – law valid across the jurisdictional borders of the nation state, and applied within. Law is therefore no longer mainly a national matter, and without an understanding of different legal cultures, the perception of the contemporary legal order will be incomplete.

Søren Koch Knut Einar Skodvin Jørn Øyrehagen Sunde (eds.)

Comparing Legal Cultures

Søren Koch Knut Einar Skodvin Jørn Øyrehagen Sunde (eds.)

Comparing Legal Cultures

Søren Koch Knut Einar Skodvin Jørn Øyrehagen Sunde (eds.)

Comparing Legal Cultures

Enquiries about this text can be directed to: Fagbokforlaget Kanalveien 51 5068 Bergen Tel.: 55 38 88 00 Fax: 55 38 88 01 email: fagbokforlaget@fagbokforlaget.no www.fagbokforlaget.no

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photo-copying, recording, or otherwise, without the prior written permission of the publisher.

Preface “There is no doubt that Marley was dead. This must be distinctly understood, or nothing wonderful can come of the story I am going to relate.”

This is the opening line of Charles Dickens’ A Christmas Carol from 1843. When starting to read this book on Comparative Legal Cultures, there is also something here that must be perfectly understood, or nothing wonderful can result from the reading: the changes in communication technology have hugely increased interactions over geographical distances, hence giving rise to new kinds of social relations in need of legal regulation by transnational law – law valid across the jurisdictional borders of the nation state, as well as applied within it. Law is therefore no longer mainly a national matter, and without an understanding of different legal cultures, perception of the contemporary legal order will be incomplete. This book aims at filling a gap that has emerged in the understanding of law with the internationalization of law. The first tiny move to make Norway a part of an emerging transnational legal order in Europe, was made in 1988 when the EEC directive on product liability was used as a model for Norwegian statutes on the same issue. At this time, it is fair to estimate that less than 1 percent of active Norwegian law derived from legal sources produced outside Norwegian jurisdictional boarders. In 1994 the EEA agreement came into force, making large parts of EU law part of Norwegian law. In 1999, the Charter of European Human Rights also became part of Norwegian law. Finally, a Supreme Court precedent from 2000 put Norway effectively in the transnational legal order. This was not unique to Norway; the 1990s were a period leading up to effectively accessing the transnational legal order after 2000. We can take the activity of the European Court of Human Rights as a token of that development. In 1989, the year of the fall of the Berlin Wall, the Court decided 25 cases, in 1999 the number was 177 cases, and in 2009 it reached its all-time high with 1623 cases. This is however, not just unique to Europe; we find comparable developments all over the world. From this development, the need to map out and navigate cultural legal differences arose, and in 2005 comparative law was taught for the first time at a faculty of law in Norway. Since 2007 comparative law been taught at the Faculty of Law at the University in Bergen from a legal culture perspective. Over the years, the theory of legal culture, and the legal culture model resulting from this theory, has been developed into a more coherent approach to comparative law. However, is has been a chal-

6 Comparing Legal Cultures lenge to find reading material related to the various legal cultures to fit with this legal culture approach. Therefore, we asked colleagues from various places who were familiar with the theory of legal culture as applied to the teaching in Bergen, to write an article about a legal culture with which they had extensive experience. The result is the book you are holding in your hands right now. The work on the book was already started in 2014, and during 2015 and 2016 drafts of the articles on the English and Welsh, German, French, Austrian and the Chinese legal culture were used as reading material to test out the concept. This experience has been applied in the editing to tailor the contribution to the teaching purpose. This is only a first edition of the book for two reasons. First, in a second edition we want to include articles on more legal cultures, not the least legal cultures outside Europe. Second, in a second edition we want to fine-tune the different chapters even more to the theory of legal culture applied in the teaching in Bergen, maybe especially what idea of justice concerns. Fagbokforlaget took immediately an interest in publishing a book on Comparing Legal Cultures. The publishing process has taken far longer than intended, and we are very grateful for their patience. All contributors to this book have undergone an intense, and at times, annoying editing process. We are also very grateful for their forbearance. Marius Mikkel Kjølstad has been our assistant and handyman in the final stage of the editing process. He proved to be a master at finding inconsistencies and deciphering endnotes, and to be a skilled designer of models of court hierarchies. We are extremely grateful for all his efforts. Even though it is hard to imagine a major setback in the use of modern communication technology, today no one can predict the future of transnational law with certainty. However, mapping out and navigating legal differences will under no circumstances cease to be of importance, and there will always be a need for the use of legal culture as an analytical tool. Bergen, 20 February 2017 Søren Koch

Knut Einar Skodvin

Jørn Øyrehagen Sunde

Contents Managing the Unmanageable .............................................................. – An Essay Concerning Legal Culture as an Analytical Tool Jørn Øyrehagen Sunde 1. A first attempt at mapping and navigating the unmanageable concept of legal culture ............................................................................... 2. Defining legal culture...................................................................... 3. Legal culture and legal change .......................................................... 4. Legal culture and communication ..................................................... 5. The legal cultural model .................................................................. 6. Bibliography ..................................................................................

A Legal Cultural “Take” on the Legal System of England & Wales .......... Christian N.K. Franklin 1. Introduction .................................................................................. 2. Conflict Resolution ........................................................................ The centralization of the courts......................................................... The County Court.......................................................................... The Family Court ........................................................................... The Criminal Courts: Magistrates’ Court and Crown Court.................. The mixed jurisdiction of the High Court .......................................... The Court of Appeal ....................................................................... The Supreme Court ........................................................................ 3. Production of legal norms & legal method ......................................... The common law ........................................................................... Statute – Acts of Parliament ............................................................. Statutory Instruments – Delegated legislation ..................................... International and European law ........................................................ 4. Idea(s) of Justice – the rise of equity .................................................. 5. Professionalisation .......................................................................... 6. Conclusions .................................................................................. 7. Bibliography ..................................................................................

An Introduction to Scottish Legal Culture............................................ Andrew R.C. Simpson 1. Introduction .................................................................................. 2. Scotland ....................................................................................... 3. Conflict Resolution ........................................................................ Iudices, Sheriff Courts, Justiciars’ Courts and Parliament....................... The Conciliar Session and the College of Justice .................................. The High Court of Justiciary and the Office of Lord Advocate...............

13 15 16 18 19 24

27 28 29 34 35 36 40 42 43 47 47 50 55 56 60 65 71 72 87 87 89 90 90 91 92

8 Comparing Legal Cultures The House of Lords ........................................................................ The Heritable Jurisdictions and the Reform of the Sheriff Courts, 1747 .. Nineteenth Century Reforms of the Scottish Court System .................. The Scotland Act 1998 .................................................................... The Constitutional Reform Act 2005 and the UKSC ........................... The Courts Reform (Scotland) Act 2014 ............................................ Other Courts ................................................................................. 4. Norm Production ........................................................................... Statutes ......................................................................................... Case-Law and Precedent .................................................................. Institutional Writings ...................................................................... Equity .......................................................................................... Custom ........................................................................................ 5. Idea of Justice ................................................................................ A Difficult Legal Question: Sharp v Thomson (1997) ............................ Apparent Justice and Legal Certainty ................................................. Burnett’s Trustee v Grainger: Sharp Restricted ..................................... Conclusions from Sharp and Burnett ................................................. Principles of Interpretation More Generally ........................................ Conclusion.................................................................................... 6. Legal Method ................................................................................ 7. Professionalisation .......................................................................... The LLB Degree and Entry to the Profession ...................................... Solicitors and Advocates .................................................................. The Universities ............................................................................. 8. Internationalisation ........................................................................ The Influence of Comparative Law.................................................... EU Law ........................................................................................ The Role of the ECHR.................................................................... 9. Conclusion.................................................................................... 10. Bibliography .................................................................................

92 93 93 95 95 95 97 98 98 100 102 102 103 103 103 104 107 109 110 111 111 113 113 114 114 115 115 116 118 118 121

An Introduction to French Legal Culture ............................................. Sunniva Cristina Bragdø-Ellenes 1. Introduction – La France ................................................................. 2. Conflict resolution ......................................................................... The French court system .................................................................. Historical development ................................................................... Conflicts of jurisdiction between judicial and administrative courts ........ Procedures in the judicial and administrative courts ............................. Recruitment, independence and promotion in the two court hierarchies . Some other characteristics of the two court systems ............................. 3. Norm production – uncontested sources of law, case-law and soft law .... Norm production from the parliament and the executive...................... Codification à la française ................................................................ Treaties and EU-law........................................................................

131 131 133 133 137 138 139 140 141 142 142 144 146

Contents Custom (coutume) .......................................................................... Case-law (jurisprudence) and the general principles of law (principes généraux de droit) .............................................................. 4. Legal method................................................................................. Hierarchy of legal sources ................................................................ Statutory interpretation ................................................................... Preparatory work (travaux préparatoires) ............................................. The role of equity (équité) ................................................................ Factors giving weight to precedents ................................................... Legal writing (doctrine) .................................................................... Soft law (droit souple/droit mou) ........................................................ Practice of governmental agencies ..................................................... Reflections on the idea of justice ....................................................... Reflections on internationalisation .................................................... 5. Professionalisation .......................................................................... Legal education .............................................................................. Lawyers and judges ......................................................................... 6. Bibliography .................................................................................. An Introduction to German Legal Culture............................................ Søren Koch 1. The framework of Germany’s legal culture .......................................... Defining the German legal culture .................................................... Historical, geographical and political preconditions ............................. 2. Conflict resolution ......................................................................... Introduction .................................................................................. Ordinary courts ............................................................................. The question of jurisdiction ............................................................. The role of Constitutional Courts ..................................................... Conclusion.................................................................................... 3. Norm production ........................................................................... Legislation..................................................................................... Courts and administration as norm producers? ................................... Legal science .................................................................................. 4. Idea of justice ................................................................................ 5. Legal method ................................................................................ The constitution determines core elements of legal method ................... Legal method and legal science ......................................................... Legal sources and other legal argument bases ...................................... Interpretation ................................................................................ 6. Professionalisation .......................................................................... 7. Internationalisation ........................................................................ 8. Some concluding reflections ............................................................. 9. Bibliography ..................................................................................

147 147 149 150 150 151 152 153 154 155 155 156 156 156 156 157 160 171 171 171 173 175 175 176 179 180 183 183 183 185 187 188 190 190 191 191 192 194 196 200 202

10 Comparing Legal Cultures An Introduction to Austrian Legal Culture ........................................... Konrad Lachmayer, Niklas Sonntag 1. Introduction .................................................................................. 2. Conflict resolution ......................................................................... Historical background ..................................................................... Basic structure of the Austrian Court System ...................................... Ordinary court system .................................................................... Administrative Adjudication ............................................................ Constitutional Review..................................................................... Interrelations of the supreme courts .................................................. 3. Norm production ........................................................................... General characteristics ..................................................................... Legislative process and democracy ..................................................... Other sources of law ....................................................................... 4. Idea of Justice ................................................................................ General remarks ............................................................................. The role of the courts ...................................................................... 5. Legal Method ................................................................................ Legal interpretation ........................................................................ Legal Sources ................................................................................. Legal principles and further elements of legal reasoning by the courts ..... 6. Professionalisation .......................................................................... The academic system of legal education.............................................. Legal professions and professional training ......................................... 7. Internationalisation ........................................................................ General remarks ............................................................................. The implementation of international law............................................ The role of the European Convention of Human Rights ....................... The overwhelming importance of EU Law ......................................... Foreign legal sources and comparative law in the Austrian legal system ... 8. Conclusion.................................................................................... 9. Bibliography .................................................................................. An Introduction to Estonian Legal Culture .......................................... Merike Ristikivi, Andreas Kangur, Irene Kull, Katre Luhamaa, Marin Sedman, Hesi Siimets-Gross, Age VĂ¤rv 1. Introduction .................................................................................. 2. Conflict resolution ......................................................................... 3. Norm production ........................................................................... 4. Idea of justice ................................................................................ 5. Legal method................................................................................. 6. Professionalisation .......................................................................... 7. Internationalisation ........................................................................ 8. Conclusion.................................................................................... 9. Bibliography ..................................................................................

215 215 216 216 217 218 220 221 222 223 223 225 226 227 227 228 228 228 229 231 231 231 232 233 233 234 234 235 235 236 238 245

245 249 255 258 262 265 267 270 272

Contents An Introduction to Finnish Legal Culture ............................................ Anna Nylund 1. Introduction .................................................................................. 2. Conflict resolution in Finland .......................................................... The Court structure and court reform in Finland ................................ Court procedure in Finland ............................................................. Caseload ....................................................................................... 3. Norm production ........................................................................... Norm production through legislation ................................................ Courts as producers of norms ........................................................... Legal doctrine as a producer of norms................................................ 4. Idea of justice ................................................................................ Legalism and predictability .............................................................. Equity in the shadow of legalism....................................................... 5. Legal method................................................................................. Sources of law and bases for legal arguments ....................................... The methods of law: from legalism and deduction…............................ …to weighing, balancing and harmonizing ........................................ 6. Professionalisation .......................................................................... Legal education and legal publishing ................................................. The legal profession ........................................................................ 7. Internationalisation ........................................................................ Law, language and legal culture......................................................... Europeanisation – limited impact or transformation of Finnish law?....... 8. Conclusion.................................................................................... 9. Bibliography ..................................................................................

285 285 288 288 290 292 293 293 294 296 296 296 297 298 298 302 304 305 305 306 307 307 308 309 311

An Introduction to Chinese Legal Culture............................................ JIANG Dong 1. An overview of China: Culture, history, landscape, politics and economy 2. Court system of China .................................................................... 3. Sources of law and their application .................................................. 4. Legal Method and Idea of Justice ...................................................... 5. Legal education and legal profession .................................................. 6. Conclusion.................................................................................... 7. Bibliography ..................................................................................

317 321 327 337 341 343 346

List of contributors ............................................................................

359

317

Managing the Unmanageable – An Essay Concerning Legal Culture as an Analytical Tool1 Jørn Øyrehagen Sunde

1. A first attempt at mapping and navigating the unmanageable concept of legal culture

Legal culture is all about mapping out and getting around the unknown. As an illustration, we can take a look at the copper engraving on the front page of this book. It is of the city Bergen in the western part of Norway, and was first published in Paris in 1683 in the five volumes Description de L’Univers. This specific version of the engraving was published in Frankfurt in 1719 in Beschreibung des gantzen Welt-Kreysses. At that time the artist, Alain Manesson Mallet, had been dead for over a decade. He was born in Paris in 1630, and had a career as an engineer, officer in the army and cartographer – a mapmaker. His description of the universe rested on the works of others that he rewrote in the book, and turned into maps. The fifth volume is on Das Alte unde Neue Europa, and he starts in the north with the kingdom of Norway and the city of Bergen.2 From the map, it is clear that Mallet has not himself been to Bergen and seen the city, but has relied on very accurate descriptions of it. For instance, the castle is too small compared to the Rosenkrantz tower, and the St. Mary Church is too large compared to both of them. But if you disregard nuances of this kind, anyone studying the map would not only get a good impression of the city, but be able to find their way from one part to the other, even though it is no street map. This then, is what legal culture is all about: mapping it out and navigating it. There is no end to how many careful studies can be made before drawing a map, just as there is no end to how the different elements of a legal culture can be studied in detail. But just like a map 1:1 is of no use to the traveller, a presentation of legal culture that carefully examines all nuances of every detail is of no use to a student or user of the law. In both cases, the aim is not an exact representation of the world as we perceive it, but to make a tool that can be used when navigating

14 Comparing Legal Cultures unknown terrain. The appropriate level of detail is dictated by the purpose of the map or by the presentation of legal culture. Mallet’s map of Bergen was made to give a first glance of this northern harbour in Europe, and not to guide the reader of Description de L’Univers from house-to-house. This book on legal culture is aimed at giving the reader an introduction to legal culture that will be a useful backdrop when dealing with questions of law, for instance in understanding underlying structures and lines of argument, but not on such a detailed level that it will guide a lawyer through a case. Mallet worked as a cartographer in a century when the art of mapmaking advanced rapidly. This was due to new seafaring technology opening up new routes to new markets, which in return gave a boost to the market for maps. Legal culture has experienced an increased interest due to the same factors – new communication technologies has opened up new markets, in return creating a market for legal knowledge beyond only the national, a market in which a legal cultural insight has a place. The internationalisation of law is an ancient phenomenon, much older than the invention of the nation-state during the 18th century. But its intensity has varied greatly, and has increased rapidly after the fall of the Berlin Wall in 1989. In a European context, the influence of the Council of Europe, with its Convention on Human Rights and Court in Strasbourg, and the European Union, moving from a common market to a union with partly common politics in areas like currency and foreign affairs and a common court in Luxembourg, has played a central role in creating a transnational legal order in Europe. Briefly, in the present era of internationalisation of law, the purpose of applying legal culture as an analytical tool is to make understandable the different notions of law and how the law operates in society to such an extent that they do not form obstacles to cooperation. This applies to the lawyer advising a client, the judge making a decision, the politician in a national parliament voting on a new piece of legislation, the bureaucrat or politician in an international body preparing or voting for transnational legislation, or the scholar preparing a common frame of reference on an entire field of law. But they do not operate within the same time-frame or within the same scale of consequences. From the lawyer advising a client to the scholar, the time available to investigate before acting increases dramatically, and so does the effect of their legal acts. And just like Mallet’s map might bring you to Bergen but not lead you through every alley in the city, the introductions to different legal cultures in this book will not provide a complete guide, but instead enable you to achieve a basic understanding and to act on the basis of this understanding. This approach takes legal culture out of a purely academic setting and into the legal world outside the ivory tower. Here, we are talking of taking legal culture out of books and into action. At the same time, this is not any more dramatic than that we have taken legal philosophy and put it into action as legal methodology. Legal philosophy has studied and developed the sources of law and how to apply them in the most sophisticated manner. However, every application of law can-

Managing the Unmanageable

not rest on the thorough and in-depth analysis of legal philosophy, but instead on the reworked shape of legal method. Legal culture can also be most thoroughly studied in-depth, but that is not the aim of this book. Instead it aims at supplying the reader with tools to operationalize legal cultural knowledge in the everyday operations of law. In other words, the book you are holding in your hands right now has been produced with the ambition of managing the unmanageable concept of legal culture, and by this making it applicable.3

2. Defining legal culture

An important acknowledgement is that legal culture is a label we put on observations we make. In Norway, for instance, there is only one court hierarchy with mostly general courts and judges dealing with civil, criminal, administrative and constitutional cases on a regular basis. There are few specialized courts, and only in the large city courts might one find a low degree of specialisation within the general courts. Decisions from the Supreme Court are considered to have a binding effect, but have no formal binding force beyond the case at hand. Decisions from the lower courts have no such effects. At the same time, there is no real civil code in Norway, and no other codes of law for that matter, but single statutes and loads of decrees governing society together with precedent and a series of other legal sources such as preparatory work, custom and value-based considerations. The single court hierarchy, the generalist judges, the preference for statutes and decrees to codes of law, and the multiple sources of law might be labelled as parts of the Norwegian legal culture are observations that can be noted, measured, studied and compared, and that influence how law operates in the Norwegian society. Legal culture is hence a construct made to come to terms with observations made in society. In this way, legal culture as a term is much like the maps drawn by Mallet; representatives of observations made that enable us to study and gain a higher level of understanding. The observations of law we label legal culture because they influence how the law operates, and because they are normally governed by notions shared and manifested by actions done without much ado and analysis. Law shares these characteristics with other cultural products like language and taste. But unlike language and taste, law is an instrument of government. This again ties law more directly to power. The relationship between law and power is complex and has many facets. Here it is sufficient to say that law makes power more effective, because it makes it possible to govern without physical presence, and at the same time restrains power, because power not exercised in accordance with law appears illegitimate. In either way, the relationship between law and power directs law towards institutionalisation, even in the stateless society. This is a special characteristic of law being a part of culture. On this background we can define legal culture as ideas of and expectations to law made operational by institutional(like) practices.

16 Comparing Legal Cultures An alternative label to legal culture could have been legal system. But a legal system has connotations with the conscious construct of law through institutions, and hence does not direct the attention towards the role of shared and more or less unconscious notions that are an important part of the legal analysis that legal culture covers in this book. For example, a purely institutional approach cannot explain why there is hardly any specialisation within Norwegian courts. Yet another alternative term could be legal tradition. The problem with legal tradition is the opposite of legal system – it draws the attention to notions and not shared institutions. An analysis of notions of law does not fully explain why a series of legal sources are considered relevant in Norwegian law, among them preparatory work and precedent. Hence, the most relevant alternative term is legal family. This has been a favoured term of comparative law, and does not have connotations towards either notions or institutions of law, and should therefore be an appropriate alternative terminology for legal culture. But the term legal family indicates a hierarchy with origin and diversions, and does not reflect the complex reality of influences and dialogue that shapes notions and directs actions within the legal sphere. A long, well-established and highly regarded tradition of extensive legislation in a continental tradition in Norwegian law goes hand-in-hand with a similar long, well-established and highly regarded tradition of the extensive use of precedent as a legal source in a English tradition. Whatever legal family you place Norwegian law in, it becomes the black sheep because of its simultaneous reliance on both extensive legislation and extensive use of precedent. (At the same time, this is more or less a characteristic of many small jurisdictions, and putting them all in the same legal family – the orphanage of comparative law – does not really have any clarifying effect.)

3. Legal culture and legal change

The more direct power relation makes law somewhat different from other cultural elements like language. At the same time, there are also many communalities. The first is that the observations made by law, as by language, are better understood if we view them as parts of a layered phenomenon. Within legal philosophy this has lately been propagated by Kaarlo Tuori in his Critical legal positivism.4 In this part of his philosophy he has been inspired by the French Annales School of history, whose many offspring have been labelled the history of mentalities, new history and cultural history. If we take Tuori’s model of layered law and turn it into an image, we can view it as a legal sea split into three levels. On the surface level we have the actual, time-specific legal actions. A piece of case-law passed by the Supreme Court will be found on this level of the legal sea. On a middle level we have the more enduring aspects of law. Here we would find the notion that precedent is a source of law. On the bottom level of the legal sea we have the treasure box of law. Here we find fundamental ideas such as that there are sources of law.

Managing the Unmanageable

If we now turn to language, as a related cultural element, we find on a surface level words, on a middle level we find grammar, and on the very bottom are the technologies of language, like speech, written documents, digital documents, etc. Words come and go, just like case-law, provisions in legislation, customs, etc. As the terms personal computer or mobile phone emerge to describe new phenomena in society, new legislation or case-law emerges to give functional answers to legal questions. But how we conjugate nouns like computer or phone changes far less frequently, just like what is regarded as a legal source is far more constant than the content of legal sources. The very idea of legal sources, found on the bottom level of the legal sea, is in this relation the most constant. In a Norwegian context, the idea of legal sources emerged in the 13th century, the idea of a whole series of legal sources in the 18th century, while the idea of legal sources is challenged in the 21th century. To view social phenomena as layered is not exactly rocket science. It is still an extremely important acknowledgement concerning legal culture, because it enables us to deal with legal cultural change. Culture in general, and legal culture more specifically, is intuitively viewed as static â&#x20AC;&#x201C; it is the rock rising above the sea of change. This is true and untrue at the same time. Legal culture is static at the same time as it is dynamic. Norwegian language and Norwegian law changes all the time at the surface level, that is on a word and legal rule level. It changes far less frequently on the middle level, and â&#x20AC;&#x201C; as we just have seen above â&#x20AC;&#x201C; hardly ever on the bottom level. This means that legal culture is ever changing and holding back change at the same time, just on different levels. This is a very important acknowledgement. However, it is still not landing on the moon, even though it gives us a perspective on law and legal change. However, there is more to this layered notion of law. Besides viewing legal change as happening on different levels, the image of the legal sea helps us understand that legal change is a question of complex interactions between the different layers of law. Changes on a surface level does not change more than some of the appearances of a legal culture. But many constant and lasting changes might in the end change the ideas on the middle level. And many constant and lasting changes on the surface level might again change the ideas on the bottom level of the legal sea. The movement might also be the opposite; changes on the bottom level might trigger off changes in the higher levels of law. However, both this top-down and bottomup model are difficult to observe in legal history in pure form, and are instead simultaneous movements. For instance, it does not seem that the idea of written law started with the writing of more and more single legal provisions, or with the introduction of a written code, but with the notion of a written code and with the writing of single provisions and statutes about at the same time in the 12th century. Either way, we see by this that legal cultural change is not only tied to the different layers, but takes place as a dialectic movement between them. We have to keep in mind that the legal sea is a model created to describe part of the complex character of legal culture, and the complex legal cultural processes

18 Comparing Legal Cultures of change. It is not designed to encompass the important role that historic events and individual actors play in a legal culture in general, and in regards to legal cultural change. The German experience with the Nazi regime, or the legal theorist Torstein Eckhoff in Norway, are examples of historic events and individual actors that contributed to legal change in their legal culture.

4. Legal culture and communication

In short, a legal culture is created and upheld by communication. Again, we can turn to Mallet’s map of Bergen from 1683 to understand this rather abstract phenomenon. There are few citizens depicted on this map. On one hand, a city is made up of individual citizens. On the other hand, a city is much more than the sum of individual citizens. The surplus is created through the interplay between the citizens. The same can be said of a legal culture. On one hand, it is made up of individual actions and notions, on the other hand it is more than the sum of individual actions and notions, and this surplus is created through the interplay. This interplay creates a community in notions and actions. There will still be individual variations, and at times direct oppositions. But what is shared increases with the interplay. A legal culture is hence not an entity that erases differences, but that creates community despite the differences. The homogenous character of a legal culture is therefore dependant on the degree of interplay and to what extent it manages to create community. There will always be competing communication. If we return to Bergen in 1683, the city had citizens from many nations, as Mallet wrote, “Ihre Einwhoner seind viel und unterschiedlicher Nationen.”5 Until the middle of the 19th century, it was said that to do business in Bergen you had to master six languages besides Norwegian. The Scots, English, French, Germans, Dutch, Danes and Norwegians all had their languages, spoken at home and in their own communities. For a long time, the most important were the Germans, since Bergen was one of four Kontor the Hanseatic league had outside the Holy German Empire. The German language influenced the Norwegian spoken especially in Bergen, but also in the entire western part of Norway. The same was the case with law. Each of these groups partly exercised their own business rules internally, and each of the pack houses that we see on Mallet’s map along the harbour, had a neighbourhood court that exercised their own legal norms. But there was also a city court, which dealt with legal issues between members of the different groups. A German merchant at the Hansa Kontor would hence be part of both a German and a Norwegian legal culture. In the 16th century, the communication structures mastered by the Hansa Kontor would be the most extensive and effective, and hence a German merchant would be most influenced by this. In the 18th century, the opposite was the case, and the German merchants were slowly pulled towards the Norwegian legal culture.

Managing the Unmanageable

This is not solely an historical situation. In Norway today, for instance the Sámi have their own legal culture because they have their own communication structures within their community. At the same time, they have interacted with Norwegian society, and have been influenced by and part of the legal culture communicated here. Even more, due to a nomadic lifestyle and for a while unsettled boarders, they were also influenced by the Swedish and Russian legal cultures when interacting with these societies. On the other hand, we see that European communication of law has increased with European integration through the Council of Europe and the European Union. The adherence to a European legal culture has hence increased for both Norwegians and Sámi. The co-existence between legal cultures, and mutual influences, is a result of interplay and the legal communication resulting from it. From this it could be deduced that the basic legal cultural unit is the national legal culture. This is not the case. Above, it was claimed that a German merchant in Bergen would have to relate to both a German and Norwegian legal culture. But then the matter is seen from a retro perspective. Because in 1683, when Mallet drew his map of Bergen, there existed no unified German or Norwegian legal culture. The Holy German Empire was split into more than 300 jurisdictional units with partly their own legal norms and court hierarchies, hence partly their own legal cultures. Norway had had a unified law and court hierarchy since the Middle Ages, but its unified character had been severely weakened during the 15th century. It is therefore more fair to say that the German merchant had to relate to both a Lübeck and Bergen legal culture. But for more than two centuries, the nation has been developed as a political unit with strong and effective communication structures, and came to totally dominate as a legal cultural unit in Europe. Still, the Sámi for instance in Norway have partly had similar effective communication structures within parts of their ethnic group, and hence survived as a legal culture. On a European level, similar effective communication structures have emerged to such an extent that some feel these threaten the national legal culture.

5. The legal cultural model

In his Description de L’Univers, Mallet not only gives the reader a map of Bergen, but also a description of the city to define it through central characteristics like the good harbour, that it was a Hansa city, that the houses were made of wood, and that the inhabitants came from many different nations.6 To make legal culture a manageable concept, we also have to identify its central characteristics. And just like the legal sea is a handy image to get to terms with legal change, the legal cultural model comes in handy when sorting out the characteristics of law and their relationships. A problem with the term legal culture is that it at times is used in a concealing instead of a revealing manner. For instance, when asking why both statutes and

20 Comparing Legal Cultures precedent for several hundred years have been important sources of law in Norway, we can explain it by saying it is due to legal culture. But this is just putting a label on the unknown, without the label having any explanatory effect in itself. Labelling the phenomenon legal culture is just the beginning, and not the end of the process. The necessary next step is to ask what structural elements are of legal culture that have made precedent an important source of law in Norway. There is a long and rather varied tradition for splitting legal culture up into elements to make it more manageable as an analytical tool. In a pioneer article on ‘Foundations of European Legal Culture’,7 based on a speech held in 1983 and originally published in 1985, Franz Wieacker investigated 1) personalism, 2) legalism and 3) intellectualism when displaying the European legal culture. In the classic An Introduction to Comparative Law,first published in German in 1984 and in English in 1992, Konrad Zweigert and Hein Kötz, defined and investigated: 1) historical background, 2) mode of thought, 3) institutions, 4) legal sources and 5) ideology as a group of elements that plays a key role in the style of a legal family (and not of a legal culture).8 Later Mark van Hoecke and Mark Warrington dealt with this in their 1999 article ‘Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model or Comparative Law’, and operated with: 1) concept of law, 2) legal sources, 3) legal method, 4) argumentation, 5) legitimation and 6) ideology.9 Yet another approach was used by Cees van Damm in his article ‘Who is afraid of Diversity’ from 2009, where he investigated: 1) individualism vs collectivism, 2) masculinity vs femininity, 3) uncertainty avoidance, 4) power distance and 5) long-term vs short-term orientation.10 There is no right and wrong in how legal culture is split up, only a question of what serves the purpose. Wieacker did a legal historical survey, Zweigert and Kötz had a contemporary and more practical approach, van Hoecke and Warrington a more scholarly approach, while van Damm aimed at explaining differences in European tort law. Based on my studies in Norwegian legal history, focusing on law as a social and cultural phenomenon more than on specific fields of law, and aiming at making legal culture an analytical tool applicable for both students and appliers of law, lawmakers and scholars, I have chosen to first split legal culture up into an institutional and intellectual structure, and to especially focus on the six structural elements: 1) conflict resolution, 2) norm production, 3) idea of justice, 4) legal method, 5) professionalisation, and 6) internationalisation. In sum, these structures and structural elements make up the legal cultural model. On one hand, the model can not claim universal validity. On the other hand, it has proven applicable in many surprisingly different contexts. Not least because the model is flexible when it comes to how thorough a legal cultural investigation can be made. The institutional structure of a legal culture is, in short, institutions where law is shaped through different practices. The most basic institutions are those that settle conflicts, simply because conflict resolution is society’s most basic demand of its legal system. It is through conflict resolution that peace and security can domi-

Managing the Unmanageable

nate society. Norm production is an activity that has gradually been at least partly emancipated from conflict resolution. Originally, legal norms were produced by deciding cases; each time a conflict was resolved, a norm was produced. As time went by, these norms were reused in similar cases, and case-law appeared. However, case-law could also be systemised and developed by a lawmaker, who then could go on to legislate independently from court practice, and by doing so, create a new institutionalised practice within law. The last move in this process would be codifications of law. It was in this way that legislation became a dominating method of producing legal norms. However, precedent was not superseded by legislation in all legal cultures, and has continued to play a role in most. And this role is increasing in a period of internationalisation of law driven forward by transnational courts and their case-law. The production and application of legal norms does not take place in an intellectual vacuum. Rather, there are several intellectual factors that dictate how norms are made and applied. The most basic is the idea of justice. As with conflict resolution, justice is a basic demand directed towards law. Conflicts resolved arbitrarily, for instance by drawing straws, are better than unsolved conflicts; thus this has been a means of solving conflicts in desperate situations. However, conflict resolutions that are experienced as just have a much higher degree of legitimacy than those experienced as unjust or arbitrary, and will therefore be accepted more often and extensively. It must be kept in mind that what is considered just is not constant, but varies from place-to-place and time-to-time. Further, the idea of justice might well vary between legal fields. Still, there will be a dominating idea of justice, dependent on the time, place, or field of law. This is the point of departure when considering what is just. To make the idea of justice operative â&#x20AC;&#x201C; that is, to solve a specific case in accordance with an idea of justice â&#x20AC;&#x201C; a legal methodology is required. A legal method is simply the manner in which ideas of justice are transformed from values and various sources of law into legal rules used to settle a specific conflict. One task for legal method is also to create a fairly tight framework for the otherwise uncertain process of going from legal raw material to refined legal rule, making it intersubjective. While lawyers and non-lawyers might share an idea of justice, legal method appears with an increased professionalisation of law, and is more and more specialised. First, professionalisation means that those who handle law on behalf of society spend more and more of their time on legal issues. Second, it means that there are special criteria to fulfil before one can be trusted with the position of handling law. All kinds of professionalisation have the same effect: they afford lawyers an internal view of law. This implies that good law in the eyes of the professional becomes more and more a question of internal correlation, while good law for the non-professional is still a question of justice in the individual case. Here, internationalisation is used in relation to all kinds of influence of legal material produced outside jurisdictional borders. As society changes, law must

22 Comparing Legal Cultures change to be able to fulfil its obligation in conflict resolution. Only in exceptional cases can law be changed based on mere experiment, normally, legal reforms are based on experience. The main sources for deriving knowledge from experience are history and comparative law. The extensive use of comparative law when reforming law makes law a social and cultural nomad. In a Norwegian context, the law has continuously been influenced by legal technologies and norms from outside the jurisdictional borders that exist at any given time. With change as the reason for this continuous internationalisation, it is no surprise that internationalisation has contributed to changing how law is perceived inside the borders it has crossed. Even though a model is never more than the mere shadow of what it is supposed to reflect, this model of legal culture can be used as a point of departure for legal cultural analysis. Let us again look at a question already posted in this chapter: Why is precedent a source of law in Norwegian legal culture? It we start by looking into conflict resolution as a structural element in the Norwegian legal culture, we find that there is only one court hierarchy with hardly any specialist courts at any level. Hence, there is an almost pyramidal-formed court hierarchy with a Supreme Court on top that can pass down precedent to all lower courts. If we then turn to norm production, we find that Norway is governed by about 700 statutes and 10,000 decrees, but no code of law. Efforts are definitely made to harmonize the statutes and decrees. But with no system of law of the kind you find in a continental codification to fall back on, the legislated law in Norway is in need for another kind of unifying force. That role is played by the Supreme Court, which makes an important contribution to the unification of law through precedent. This is possible because the idea of justice in the Norwegian legal culture is not strict predictability, but that law should be adjusted through appliance to give an equitable result in the individual case. This is done by the courts. One instrument to keep this practice from becoming arbitrary, is the Supreme Court precedent that unifies the adjustment. Since the idea of justice is a fairly flexible predictability open to equitable adjustment through the appliance of law, the legal method is not a strict deductive method. Instead, it is a method where a variety of legal sources are used as sources to make the appliance flexible but not arbitrary. This also fits well with the fact that lay judges still play an important role in criminal cases, but far less in civil cases these days. Their approach to law is often less focused on the predictability obtained by strict deduction from legislated law, and more on flexible appliance. Legal science in Norway has also not been aiming at creating a system of law to replace the role of precedent. The internationalisation of law, especially the human rights, has been partly court-driven, with the Supreme Court taking the lead in unifying Norwegian legal norms produced within and outside Norwegian jurisdictional boarders.

Managing the Unmanageable

Legal Culture and its structures and structural elements Institutional structure Conflict resolution

Norm production

Unified court hierarchy with one Supreme Court on top

A need for unifying law, also legislated law

Intellectual structure Idea of justice

Legal method

Degree of professionalisation

Character of internationalisation

Predictability but flexibility to adjust law according to equity

A series of legal sources giving arguments for adjustment according to equity

Extensive use of lay judges and a legal science without ambitions of making a system of law

Partly court driven, with the Supreme Court taking the lead

We see from this example that the legal cultural model can be used to split up and analyse a question which otherwise could easily be labelled legal culture without further explanation. What we have to keep in mind is firstly that not all legal structural elements are relevant in answering a question; secondly, that there might be other structural elements that are not included in this simplified model. For instance, within the institutional structure we could have added legal education, which in Norway definitely includes precedent, and within the intellectual structure we could have added legal ideology, which in Norway is legal realism that promotes the adjustment of law through practice as an ideal. Thirdly, we must not forget that the legal cultural model only deals with the internal legal culture, which is the legal culture shared by those who work with law. The external legal culture, which is the legal culture that encompasses all subjects to a specific legal culture, is much wider and cannot be put into a model. Here we find factors like economy and religion, which may be relevant for the legal culture, but which are not legal in their character. There is an obvious and necessary relation between the internal and external legal culture. It is like the relationship between the map of Bergen on the front of this book, and the map of Europe on the back of it. This map was also made by Mallet for his Description de Lâ&#x20AC;&#x2122;Univers from 1683, while this specific version of the engraving was published in 1719 in Beschreibung des gantzen Welt-Kreysses. Bergen is only a tiny spot in Europe, just like the internal legal culture is only a tiny spot within the general culture in society. At the same time, if Bergen is where you are going, it is a map of Bergen you need. And if it is a legal matter you are in need of mapping out and getting around, it is the kind of map of the internal legal culture that the legal cultural model offers, that you need. That is the scope of this book.

24 Comparing Legal Cultures

6. Bibliography

Mallet AM, Beschreibung des gantzen Welt-Kreisses: In sich begreifend verschiedene Vorstellungen der Welt, allgemeine und besondere Land-Charten der alten und neuen Erdbeschreibung (Johan David Zunner 1684) Mankowski P, Rechtskultur (Mohr Siebeck 2016) Sunde JØ, ‘Champagne at the Funeral – an Introduction to Legal Culture’ in Sunde JØ and Skodvin KE (eds), Rendezvous of European Legal Cultures (Fagbokforlaget 2010) 11 — — ‘Legal Cultural Changes in Europe – Teaching Future Prospects on the Basis of Legal History and Comparative Law’ in Kjell Å. Modéer and Per Nilsén (eds), How to Teach European Comparative Legal History (Juristförlaget 2011) 47 — — ‘Dissenting votes in the Norwegian Supreme Court 1965–2009: A legal cultural analysis’ (2012) 1 Rechtskultur – Zeitschrift für Europäische Rechtsgeschichte 59 — — ‘Live and Let Die – An Essay Concerning Legal-Cultural Understanding’ in Maurice Adams and Dirk Hairbaut (eds), The Method and Culture of Comparative law – Essays in Honour of Mark van Hoecke (Hart Publishing 2014) 221 — — ‘Daughters of God and counsellors of the judges of men – a study in changes in the legal culture in the Norwegian realm in the High Middle Ages’ in Stefan Brink and Lisa Collinson (eds), New Approaches to Early law in Scandinavia (Turnhout 2014) 131 — — Høgsteretts historie 1965–2015 – At dømme i sidste Instans (Fagbokforlaget 2015) — — ‘Legal Cultural Dependency of Norwegian Legal Method – and its future’ in Ingvill Helland and Søren Koch (eds), Nordic and Germanic Legal Methods (Mohr Siebeck 2015) 44 Tuori K, Critical legal positivism (Ashgate 2002) van Damm C, ‘Who is afraid of diversity – Cultural diversity, European co-operation, and European tort law’ (2009) 20 King’s Law Journal 281 van Hoecke M and Warrington M, ‘Legal Culture, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 International Comparative Law Quarterly Wieacker F, ‘Foundations of European Legal Culture’ (1990) 38 The American Journal of Comparative Law 1 Zweigert K and Kötz H, An Introduction to Comparative Law (Clarendon Press 1998)

Endnotes 1.

This essay is based on ideas developed in the articles ‘Champagne at the Funeral – an Introduction to Legal Culture’ in Jørn Øyrehagen Sunde and Knut Einar Skodvin (eds), Rendezvous of European Legal Cultures (Fagbokforlaget 2010) 11; ‘Legal Cultural Changes in Europe – Teaching Future Prospects on the Basis of Legal History and Comparative Law’ in Kjell Å. Modéer and Per Nilsén (eds), How to Teach European Comparative Legal History (Juristförlaget 2011) 47–57; and ‘Live and Let Die – An Essay Concerning Legal-Cultural Understanding’ in Maurice Adams and Dirk Hairbaut (eds), The Method and Culture of Comparative law – Essays in Honour of Mark van Hoecke (Hart Publishing 2014) 221–234. The idea has further been developed in especially the book Høgsteretts historie 1965–2015 – At dømme i sidste Instans (Fagbokforlaget 2015); the articles ‘Dissenting votes in the Norwegian Supreme Court 1965–2009: A legal cultural analysis’ (2012) 1 Rechtskultur – Zeitschrift für Europäische Rechtsgeschichte 59–73; ‘Daughters of God and counsellors of the judges of men – a study in changes in the legal culture in the Norwegian realm in the High

Managing the Unmanageable Middle Ages’ in Stefan Brink and Lisa Collinson (eds), New Approaches to Early law in Scandinavia (Turnhout 2014) 131–183; and ‘Legal Cultural Dependency of Norwegian Legal Method – and its future’ in Ingvill Helland and Søren Koch (eds), Nordic and Germanic Legal Methods (Mohr Siebeck 2015) 44–70; and in lectures held at the University in Regensburg (Germany), Beijing (Renmin/China), Milano (Bocconi/Italy), Budapest (the Academy of Sciences/Hungary), Tartu (Estonia), and Luleå (Sweden). 2. Alain Manesson Mallet, Beschreibung des gantzen Welt-Kreisses: In sich begreifend verschiedene Vorstellungen der Welt, allgemeine und besondere Land-Charten der alten und neuen Erdbeschreibung (Johan David Zunner 1684) 3–8. 3. On the unmanageable character of legal culture, see Peter Mankowski, Rechtskultur (Tübingen, Mohr Siebeck, 2016. 4. Mallet (n 2) 6. 5. ibid. 6. 6. ibid. 6. 7. Franz Wieacker, ‘Foundations of European Legal Culture’ (1990) 38 The American Journal of Comparative Law 1–29. 8. Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (Oxford, Clarendon Press, 1998) 68. 9. Mark van Hoecke and Mark Warrington, ‘Legal Culture, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law’ (1998) 47 International Comparative Law Quarterly 495–536. 10. Cees van Damm, ‘Who is afraid of diversity – Cultural diversity, European co-operation, and European tort law’ (2009) 20 King’s Law Journal 281–308.

Søren Koch Knut Einar Skodvin Jørn Øyrehagen Sunde (eds.)

ISBN 978-82-450-2091-5

,!7II2E5-acajbf!

Comparing Legal Cultures

Søren Koch Knut Einar Skodvin Jørn Øyrehagen Sunde (eds.)

Comparing Legal Cultures