National Origins of European Law:
Towards an Autonomous System of
European Law?*
Hans Petter Graver
ARENA
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.
Footnotes
[*] 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 et.al., 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]
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