ARENA Working Papers
WP 00/24



National Origins of European Law:

Towards an Autonomous System of European Law?*

Hans Petter Graver

1. The Topic

Law is a response to needs, desires and conflicts in society. Usually, the term law is reserved for a response that involves the formulation of norms in some way related to organs of the state, either in the way that they are formulated by state organs such as legislators or courts, or that they are backed by the threat of use of state force or both. Norms that do not fulfil such requirements are usually categorised as morality, bylaws, practices etc. depending on the circumstances. In this way it can be said that law is a product of state and society.

Lacking a European state, the term "European law" does not refer to a single body of law, but to the laws of the states within the geographic entity that constitutes Europe. The law of a country in Europe is in this perspective "European" as distinct to "African", "American" or "Asian". The question of national origins to European law is in this context a question of outside influences upon national law. To which extent is the law of a country influenced by the laws of another country within Europe, and how are the laws of European countries influence by another?

The development of international legal instruments has led to a usage of the term "law" to refer also to specific legal instruments or bodies of such instruments, such as "European community law" and "European human rights law". As a result, the term "European law" takes on a new meaning, and may refer to any or all of such transitional legal entities. In this context, also the question of national origins attains new meaning.

International bodies of law are coined by common efforts of the participating states. This is the case even when the body develops into a legal order i its own right like European community law. The member states are still the masters of the treaties in the respect that they develop the treaties according to principles of public international law. Through the role of the Council, the member states also have a profound influence on the development of secondary legal instruments of the European Union.

As is well known, national law in many ways influences Community law. Measures to harmonise the laws in the member states always take as their starting point existing laws in at least some of the member states and differences amongst them. Measures to develop common policies and actions, for instance in the fields of social, environmental or consumer policy, often have as a starting point existing policies and laws in at least some of the member states, and the desire to accommodate these in the process of developing the common market and the ever closing union of the peoples of Europe. The judicial development of general principles of community law has as its raw materials different principles in national law, as examples, demands and restrictions for the development of community law. [1]

Important national social and economic interests in a member state may also contribute in the development of Community law. As is well known, restrictions in the field of distribution and sales of alcoholic beverages have been an important part of culture and politics in Finland, Sweden and Norway. In line with the respect that the Court of Justice customarily attributes to important national issues, the Nordic model in this way has contributed to the development of the relation between articles 31 and 28-30 of the EC-treaty. [2]

It is not for a scholar from outside the Union to teach distinguished colleagues from within about the development of Community law. Instead I will focus upon the term European law in the sense mentioned first in my introduction, meaning laws in countries in Europe. More specifically I will focus upon Nordic law, meaning laws in the countries of the Nordic region; Denmark, Finland, Iceland, Norway and Sweden. I will address some questions related to how the laws of the Nordic countries influence each other. I will also comment upon how the laws of the Nordic countries influence the legal development in Europe.

2. Nordic law

The Nordic countries share a common history. Three of the countries share what anyone but Scandinavians would characterise as a common language, and all the countries have strikingly common features in their social and political structures.

Looking at the law, jurisprudence and legal theory of the Nordic countries participate to a large extent in the same dialogue. [3] Because of their close interrelationship and their common "stylistic hallmarks", Zweigert and K�tz attribute the Nordic laws to their own legal family, alongside the Romanistic and German legal families. [4]

Seen with a lower resolution, Nordic laws form part of the larger Romanist Germanic legal family. [5] They have their origins in Germanic legal codes from medieval times, the judiciary was not separated from the crown until modern times and they rely to a great extent upon statutes as a primary means of ordering the legal materials. The Nordic countries do not, however, have comprehensive codes like many continental states, and influence from Roman law was much later and weaker than compared to many countries on the continent. The continental tendency to conceptualism and construction of large scale theoretical systems has seldom flourished in the harsh conditions of the north, where legal reasoning takes a pragmatic approach with analogy and substantive arguments related to the specific case as important parts of the legal method. [6]

3. Forms of Nordic Legal Co operation

3.1 Nordic Legislative Co operation

Nordic co-operation is unique in a European context. No other region of Europe has seen a similar long-lasting and extensive co-operation between sovereign states. [7] Co-operation on legislative and legal matters forms an important part of this collaboration. The Nordic legislative co-operation has its roots back to the union between Norway and Sweden and attempts in the 1840s to harmonise the criminal law. [8] In the nineteenth century, results were achieved on the acts of bills of exchange and the maritime codes. Through the twentieth century common acts were passed on topics such as sale of goods, contracts, agency, family, insurance, aviation, promissory notes, intellectual property and companies. There was also co-operation in the field of torts. A field where there has been no co-operation is property law and land law.

The forms of co-operation have been informal, driven by representatives from the Ministries of Justice. [9] For the most part is has not been governed by binding instruments of international public law. The Ministers within their co-operation under the Nordic Council and the Nordic Council of Ministers formally lead the co-operation. Larger law reforms are prepared by ad hoc task groups, which are given as part of their terms of reference to co ordinate with parallel task groups in the other countries. The results of the work lead to proposals to the respective parliaments, where changes and amends are made as part of the normal national legislative procedure. Politically, similar rules are one political consideration among others.

The aim of the co-operation is not integration but legal unification. Sometimes the aims do not reach further than to an exchange of information. In other cases, emphasis is put on establishing common goals that are to be achieved. Finally, in some cases, the aim is to pursue identical formulations of the legal texts.

The Nordic legislative co-operation continues to this day. An important topic for discussion is how the different relations that the Nordic Countries have with the European Union influence this work, and the scope of this co-operation within the European integration. [10] The predominate view seems to be that the co operation in some areas is enhanced but maybe more focussed on co operation on the administration of justice than on actual legislation. In other areas it becomes superfluous because of the harmonisation of rules within the Community. The wish of some that Nordic co operation should enable the Nordic countries to operate in a co ordinated way within the political process of the European Union does not seem to be fulfilled.

3.2 Co operation among Nordic Jurists

The Nordic legal communities can to some extent be seen as parts of a common legal community. [11] In part it is institutionalised as a common community. In some areas Nordic court cases are published in common law reports, notable Nordisk immaterielt rettsskydd (Nordic Intellectual Property Protection) and Nordiske dommer i sj�fartsanliggende (Nordic Cases in Maritime Law). There are several law journals with a Nordic content aimed a Nordic audience. Examples are Tidsskrift for rettsvitenskap (Journal of Legal Science), Retf�rd nordisk juridisk tidsskrift (Justice Nordic Legal Journal), Scandinavian Studies in Law and Nordisk tidsskrift for kriminalvitenskap (Nordic Journal of Criminology).

Every third year a large conference for Nordic jurists (Nordiske juristm�ter) is held The proceedings are published and constitute many volumes of papers and discussions of interest to the Nordic legal community.

Legal doctrine in many fields also reaches a broader Nordic audience. Notable this is the case in fields with unified legislation such as contracts and sales of goods, insurance law and company law. But this is the case also in areas where the laws are not uniform. Examples of this are tort law and family law. Administrative law has special characteristics. Due to historical reasons one can here speak of an east-Nordic branch comprising Finland and Sweden, and a west-Nordic branch comprising Denmark and Norway. Due to influences from the European Human Rights Court and Community law, Nordic administrative law is becoming more similar. There has also been some Nordic legal co-operation on the field of administrative procedure.

4. The Nordic model and European law

As mentioned above, European integration in many ways influences the Nordic legal co-operation. It is less recognised in what ways Nordic law and Nordic legal co-operation influences European Community law. As stated above, the Nordic states to a very little extent appear as a group or in a concerted way within the community. The Nordic identity is more of a cultural identity than an identity in economic interests. Sweden is more industrialised than the other countries, Norway and Finland highly dependent upon different natural resources (oil and fish in Norway, timber in Finland) and Denmark has a larger and more prosperous agricultural sector than the other countries. There is also clear evidence that Nordic co operation in general is on the wane. [12]

The Nordic countries have also been late bloomers in European legal integration. Although parties to the European Convention on Human rights, this convention and precedents from the European Court was formally implemented in national law as late as the 1990s in the Nordic countries. [13] Denmark became member of the European Community in 1973, Finland and Sweden in 1995. Iceland and Norway still have their connection with the Community through the EEA agreement from 1994.

Nevertheless, to some extent the Nordic countries in some fields may have influenced the development of Community law. One part of the Nordic societies where there is a common identity and a perception of a Nordic Model is in the field of industrial relations and labour law. [14] One field of law where there has been a strong Nordic concern in the development of Community law, is in the social field. The term "working environment" has been a well-established concept in the labour law of the Nordic Countries well before its inclusion into article 118 A of the EC-treaty by the Single European Act. [15] The Nordic Countries, and the Swedish government in particular, played an important role in incorporating the employment chapter and the social provisions into the Amsterdam treaty. It may also be of interest to note that the preamble to the EEA agreement in recital nine and eleven goes further in specifying social rights that Community law at the treaty level did at the time.

The public's right to access to the documents of public administration is another field with common Nordic traditions. Denmark, along with the Netherlands proposed to include such a right in the Maastricht negotiations. [16] Preceding the Amsterdam Treaty Sweden and Finland joined Denmark's efforts. [17]

The European ombudsman is an institution with Nordic origins. It originated in Sweden, where the appointment of an Ombudsman by the Parliament was part of a constitutional reform that took place in 1809. When Finland became an independent state, the ombudsman system was adopted in its first Constitution of 1919. Sweden and Finland remained the only countries to have Ombudsmen with a general remit until 1953. In that year, Denmark established an ombudsman, followed by New Zealand in 1962 and by Norway the following year. In the negotiations that led to the Maastricht Treaty on European Union, proposals to establish the office of European Ombudsman were closely linked to those for European citizenship.

Aspects of European law outside the Community develop differently. Whereas Community law develops through decisions by autonomous institutions and therefor in a sense top down, other tendencies of Europeanisation take place bottom up. This is notably the fact in the unification that is being attempted in the field of private law with the development of principles of European Contract Law. [18] The Nordic legal orders are small players in this field. It is, however, a fact that the Danish scholar Ole Lando has chaired the commission working for formulation of principles of European contract law. It has also been suggested that the Nordic sale of goods acts, notably the Swedish version, as a compromise between old colony states and third world countries, played a role as a model for the UN Convention on Contracts for the International Sale of goods. [19] Swedish law was well known to the drafters through the German edition of Alm�n`s book on the sale of goods. [20] In the present days, Nordic contract law represents an approach based on substantive fairness control of contract terms, as opposed for example to the English approach that favours party autonomy. [21]

5 Legal autonomy

The answer to the question of the autonomy of law much depends upon how "law" and "autonomy" are defined. For instance in the Luhman inspired systems theory, law is very much defined as an autonomous societal system or subsystem. Law's autonomy seems in such a perspective to be given. On the other hand, the Marxist perception of law as a dependant superstructure, all ready in the outset denies law any autonomy at all.

In my view law can be seen as at set of ideas and a set of practices. As a set of ideas, law has no autonomy from people actually thinking and formulating these ideas. It is of course always possible to construct a self-referential system of ideas, which in this sense is autonomous. To my knowledge no such legal order exists.

As a set of practices, autonomy depends on the situation of the institutions and actors performing these practises. Autonomy has both a formal and an empirical dimension. The EC Court of Justice is for instance formally an autonomous body. To which extent it actually operates independently from needs, desires and expectations in the member states is an empirical question.

It seems to me that for a legal order to be characterised in any way as autonomous, it is necessary that there are specific social practises tied to this legal order. An important dimension is to what extent the legal order has separate institutions that operate with reference to it. From this perspective the only European legal orders where one can meaningfully speak of autonomy, apart from the national legal orders of European nation states, are the orders tied to the European Convention of Human Rights and to the aquis communitaire of the European Union.

The Court of Justice has established that Community law formally constitutes an autonomous legal order. The formal autonomy of its institutions derives from the treaties and jurisprudence of the Court. Community law is on the other hand neither formally nor socially self-referential. Even modest inputs from the Northern parts of the Union give evidence to this fact.


[*] Paper to the Conference of Stipendienfonds Ruhgas European Law in the German-Norwegian Context - Origins and Perspectives, Balestrand June-July 2000

[1] For an overview of how the ECJ draws its inspirations from national law for the definition of concepts and formulation of general principles of Community Law, see Ole Due, Danish Law in a European Context in Dahl, Melchior, Rehof, Tamm (eds.) Danish Law in a European Perspective, Copenhagen 1996 pp. 13-31.

[2] Case C-189/95 Alm�nna �klagaren vs. Harry Franz�n [1997] ECR I-5909. See Hans Petter Graver, Kommentarer til EF-domstolens avgj�relse i Franz�n-saken, Tidsskrift for forretningsjuss 1997 pp. 82-88.

[3] Hans Petter Graver, Law, Justice and the State: Nordic Perspectives, ARSP-Beiheft 61, Karlsson and J�nsson (eds) Law, Justice and the State IV, Stuttgart 1995 pp. 23-27.

[4] K. Zweigert and H. K�tz, An Introduction to Comparative Law, 2 ed., Oxford 1987 p. 287. For more in-depth studies on Nordic law accessible to scholars outside the scandinavian linguistic community see Gerhard Ring und Line Olsen-Ring, Einf�hrung in das skandinavische Recht, M�nchen 1999, Dahl, Melchior, Rehof, Tamm (eds.) Danish Law in a European Perspective, Copenhagen 1996 and Juha P�yh�nen (ed.), An Introduction to Finnish law, Helsinki 1993.

[5] Michael Bogdan, Komparativ r�ttskunnskap, Stockholm 1993 p. 91.

[6] For a comparison between Italian, English and Norwegian legal reasoning see Guiditta Cordelia Moss, A Comparison Between Italian, English and Norwegian Inheritance Rules as an Illustration of Different Legal Methods, Tidsskrift for rettsvitenskap 1999 pp. 884-903

[7] See Gebhard Carsten, Europ�ische Integration und nordische Zusammenarbeid auf dem Gebiet des Zivilrechts, ZeuP 1993 pp. 335-353.

[8] For an overveiw see Leif Sevon, N�gra reflexioner kring det nordiska lagstiftningssamarbetet, Tidsskrift for rettsvitenskap 1988 pp. 509-523.

[9] For a description and comparision to the harmonisation and co operation within the European Community see Fredrik Sejersted, Nordisk rettssamarbeid og europeisk integrasjon in Olsen and Sverdrup (eds.) Europa i Norden, Europeisering av nordisk samarbeid, Oslo 1998 pp.214-247.

[10] In addition to the works mentioned above by Carsten, Sejersted and Sevon, see Inge Lorange Backer, Nordisk lovsamarbeid i europeiseringens tegn, in Olsen and Sverdrup (eds.) Europa i Norden, Europeisering av nordisk samarbeid, Oslo 1998 pp.248-261 and Bernitz and Wicklund (eds.) Nordiskt lagstiftningssamarbete i det nye Europa, Stockholm 1996.

[11] See Carsten, above note .

[12] Bj�rn Otto Sverdrup, Europeeisering som de-institusjonalisering - nordisk politisk samarbeid i endring, in Olsen and Sverdrup (eds.) Europa i Norden, Europeisering av nordisk samarbeid, Oslo 1998 pp.162-194.

[13] S�ren Stenderup Jensen, The European Convention on Human Rights in Scandinavian Law, Copenhagen 1992.

[14] See Niklas Bruun, Den nordiska modellen Fackf�reningarna och arbetsr�tten i Norden - nu och i framtiden, Malm� 1990.

[15] Ruth Nielsen and Erika Szyszak, The Social Dimension of the European Union, 3rd. ed. Copenhagen 1997 p. 330.

[16] Ulf �berg, Europeiska offentlighetsprinciper - ett svenskt dilemma? In Bernitz, Gustavsson and Oxelheim (eds.) Europaperspektiv �rsbok 2000, Stockholm 2000 pp. 195-221.

[17] See Inger �sterdahl, Openness v. Secrecy: Public Access to Documents in Sweden and the European Union, (1998) 23 E.L.Rev. pp. 336-356.

[18] See Christoph U. Scmid, "Bottom-up" Harmonisation of European Private Law: Ius Commune and restatement, in Heiskanen and Kulovesi (eds.) Function and Future of European Law, Helsinki 1999.

[19] See Viggo Hagstr�m, Kj�psrettskonvensjon, norsk kj�pslov og internasjonal rettsenhet, Tidsskrift for rettsvitenskap 1995 pp. 561-588 with refrences to Hellner.

[20] Alm�n, Das Skandinavische Kaufrecht, Bde I-III, Heidelberg 1922.

[21] See Thomas Wilhelmsson, Standard Form Conditions in A.S. Hartkamp et .al. (eds) Towards a European Civil Code, 2. edition, Nijmegen 1998 pp. 255-266.

[Date of publication in the ARENA Working Paper series: 15.11.2000]