Fact or Law ?

Adam CROON

Senior lecturer in legal history, Örebro University, Sweden

Résumé

Cet article examine les arguments méthodologiques qui sous- tendent l’utilisation de la coutume et du droit coutumier dans la législation et la jurisprudence du système juridique suédois entre le 16e et le 19e siècle. Le concept de coutume fait référence à des normes de comportement dans la société, qui ne sont pas reconnues comme des normes juridiques, car elles ne sont pas soutenues par une opinio iuris. Le concept de droit coutumier est utilisé pour décrire les normes pour lesquelles il existe une opinio iuris. Alors que la première catégorie de normes n’a pas d’identité juridique indépendante et est utilisée principalement comme circonstance factuelle dans la législation ou dans l’interprétation juridique, la seconde catégorie est reconnue comme une source de droit indépendante dans la doctrine des sources juridiques. Historiquement, la pertinence de l’opinio iuris dans la transformation de la coutume en droit coutumier a été débattue parmi les universitaires suédois et l’indépendance du droit coutumier en tant que source de droit a été contestée.

Mots-clés

Coutume – Sources du droit – Théorie juridique suédoise – Histoire du droit (Suède)

Abstract

This paper discusses the methodological arguments behind the use of custom and customary law in legislation and adjudication in the Swedish legal system from the 16th century to the 19th century. The concept of custom refers to norms of behavior in society, which are not recognized as legal norms, as they are not upheld by an opinio iuris. The concept of customary law is used to describe norms where an opinio iuris exists. While the first category of norms lacs an independent legal identity and is used mainly as a factual circumstance in legislation or in legal interpretation, the second category is recognized as an independent source of law within the doctrine of legal sources. Historically, the relevance of the opinio iuris in the transformation of custom into customary law has been debated among Swedish scholars and the independence of customary law as a source of law has been disputed.

Keywords

Custom – Sources of Law – Swedish Legal Theory – Legal History (Sweden)

Introduction

This text discusses some methodological arguments behind the use of custom and customary law in the Swedish legal system from the 16th century to the 19th century. In this text, the concept of custom will be used regarding norms of behavior in society, which are not recognized as legal norms by the population in the sense that they are not upheld by an opinio iuris. The concept of customary law will be used to describe norms where an opinio iuris exists within the population or within a certain relevant group of individuals. While the first category of norms lacs an independent legal identity and is used mainly as a factual circumstance in legislation or in legal interpretation, the second category is recognized as an independent source of law within the doctrine of legal sources. Historically, however, the main question among Swedish legal scholars has been whether any weight or importance should be attributed to the concept of opinio iuris. In other words, the question has been raised whether the transformation from custom into customary law, and hence the transformation from fact into norm in a legal perspective, should be attributed to the existence of an opinio iuris or whether the concept should be ignored, leaving the transformation exclusively in the hands of the legislator and the courts. On this ground, the independence of customary law as a source of law has been disputed.

I. The Time before The Code of 1734

There is no doubt that the unwritten law has been an important part of the Swedish doctrine of legal sources. It is worth mentioning that even if the Swedish legal system in the Middle Ages was a mixed system of mainly Germanic law and Roman law, and though the Germanic law by tradition has been regarded as oral, the Swedish medieval codes are fairly old in comparison with continental Europe¹.
A prominent example of the importance of unwritten law is found in “[TRANSLATION] The Rules of the judges by Olaus Petri” traditionally attributed to the scholar and reformist Olaus Petri in the 16th century: a set of golden rules that should be followed by a good judge, which are commonly still published in the main edited versions of Swedish statute books.
Rule number 14 reads: “[TRANSLATION] custom of the land, when it does not lead to unjust results could be used in trial”².
It is not possible to draw any conclusions from the text alone as to whether the unwritten law could be used in competition with the written law or mainly as a subsidiary source. The 20th rule of the judge, on the other hand, stated that custom should be used in the absence of written law³. This indicates that written law had precedence. The Swedish 17th century scholar Claudius Kloot declared for example in his writings that “[TRANSLATION] where there is no written law, the jurist may use the fair custom of the land ”⁴.
As time went on, however, it became increasingly important for the legislator to strengthen his grip on the doctrine of the legal sources and to make sure that the precedence of the written law was respected. During the 17th century the legalism or formalism in legal methodology increased, culminating in the provisions in chapter 1, paragraph 11 and chapter 24, paragraph 3 in 1734 års rättegångsbalk ([TRANSLATION] the Act on procedure in the Code of 1734), which firstly stated that the judge must judge in accordance with the (written) law and only use custom in cases of silence or obscurity and secondly made it clear that only Swedish law and custom could be used in court. This development had mainly two explanations which will be outlined in the following: first, a situation where the medieval codes were outdated but not updated (which made gaps in legislation frequent), and secondly a fierce competition of legislative power between the king and his royal courts broke out in the 17th century, a battle fought partly with the doctrine of legal sources as a weapon⁵.
The first of the royal appeal courts was Svea Court of Appeal, set up in 1614⁶. Thereafter several royal courts were created in the provinces of the relatively vast Swedish realm, which stretched into Finland, the Baltics and even northern Germany. The use of custom within the procedures of the royal courts was generally understood as normal, but already in the instruction to the courts of 1615, it was stated that only Swedish custom could be used⁷. This was a way to deal with the pluralism in the doctrine of the legal sources that already existed at the courts and was an attempt to try circumscribe it⁸. The pluralism could, as stated above, be attributed to the lack of modern legislation, since the latest code in force at the time in Sweden was from the 15th century⁹. Scattered legislation of various kinds was the only instrument that courts had at their disposal, and hence they looked for guidance elsewhere or interpreted the statutes rather freely. By doing so, their own case law undermined the status of the written law, as well as the crown they were set to serve – much to the liking of the nobility. This practice only increased until the Swedish king, Charles the 11th wrote a strongly worded letter to the Göta Court of Appeal in 1683, making it clear that from now on only Swedish legal sources were to be used at Swedish courts, and above all the written law of the King¹⁰. Two years later, in 1685, a committee was appointed with the task of drafting the new code of the realm, which was to become the code of 1734¹¹. However, as time passed, the political circumstances changed, and when the code was enacted in 1734 the king was long since gone, as well as his empire. The code, however, survived him by many years. The Swedish code of 1734 represents the last attempt of codification in Swedish legal history. In its original version it contained provisions on private law, criminal law, civil and criminal procedure. Though most of its provisions have been changed or repealed and many new laws are to be found outside of the code, it is technically still in force.

II. The Unwritten Law as Natural Law and Data of Interpretation

Customary law had, as shown, been used in its’ own right or as a tool of interpretation of the written law. In this second capacity the custom had mainly been regarded as a fact and its normative status or transformation was attributed to the act of interpretation. There is, however, another factor to consider when dealing with the status of customary law at this time in history, namely the relationship between customary law and natural law. According to the legal theory of the time, law must like all other phenomena, have its origin in a metaphysical dimension. Hence, natural law could be described as absolute morality, a natural entity that transcended time and space¹². Man could understand the needs of morality as well as of the natural law through rational reasoning. The results of these rational conclusions or of the intuitive understanding could be found in society in the form of custom, which were considered to be traces of natural law. Rightly used, the custom or unwritten law, should be used inductively by judges, legislators or even scholars to understand the meaning and demands of natural law. Albeit a fact in relation to the written law, the custom had a normative character, to the extent that it mirrored natural law. It was not, however, the existence of a popular opinio iuris itself that made it normative, but the fact that the opinio iuris mirrored the natural law.
The legislator was advised by certain scholars, not to meddle in the popular custom when it corresponded with natural law. In these cases, there was no need for formalization through legislation. The Swedish jurist Lars Lind claimed for example that:

“[TRANSLATION] It is not against legislation that people measure the rights and wrongs of their doings, but against the natural rationality of their minds. The commandments of law and its prohibitions are too many to be stored in memory, but the sound mind and good conscience is there at every hour, as long as it is not forced out by evil thoughts. Therefore, the legislator seldom forbids something which is known as sound and virtuous by the conscious mind”¹³.

An example of this way of reasoning could be found in a commentary of the Swedish code of commerce by the scholar Johan Holmbergson. Holmbergson claimed that the Swedish legislator, being aware of the customs existing in contract law on real estate, had abstained from legislating on the subject – apparently finding them in line with natural law:

“[TRANSLATION] When the legislator, being aware of the customs according to which these transactions are made, and still not have found it necessary to provide rules and definitions, one could draw the conclusion that the law will protect even purchases of both corporal and incorporal things, if they are not explicitly excluded, and hence that the rule in 2 § d and c is applicable”¹⁴.

If a custom or the customary law differed from the requirements of natural law, it must, on the other hand, be stifled by the legislator and hence also by the judge¹⁵. The prohibition of customary law in these cases was used to educate and mold the population into a more morally enlightened people¹⁶. That is why the methodological rules on how to use customary law in judgements had always come with the condition that it should not be unjust or lead to unjust results – the main purpose being that the positive law should be in sync with its origin – natural law. This must be assured by the legislator primarily, when interpreting the custom deciding on the need for further legislation, or in his place, by the judge, when interpreting the legislation or when using customary law independently. The legislator, however, remained the main interpreter and evaluator of popular opinio iuris. The same idea is found in the Rules of the Judges, where the 15th rule stated that “wicked or unjust custom may never be anyone’s help, which means that no one should base his claim on it, arguing that many do the same as he does, when what he has does is against the law ”¹⁷. Wrongful customs could never have legal force based solely on continuity and opinio iuris, not in positive law, nor in view of natural law, as the binding character of the former was dependent on the latter.
Consequently, the interpretative discretion exercised by the judge did not amount to any real law making or personal influence over the law – the task was only to adapt the law to natural law trough gap filling. The use of custom therefore had its limits as described in the code of 1734. The famous professor at Lund university, David Nehrman Ehrenstråle, pointed out that the judge must try to interpret the law and fill gaps by choosing arguments that were in line with natural law. Nehrman based his reasoning implicitly on another of the rules by Olaus Petri (number 9), which stated that what was unreasonable according to natural law, could never be regarded as valid positive law:

“[TRANSLATION] The judge should in dubious cases, when different opinions seams to follow from different readings of the law, found his reasonings upon the natural law, and rather interpret the law equitably than give it a meaning contrary to natural justice: because what is not just could never be accepted as law ”¹⁸.

Nehrman also pointed out that the mandate of the judge to interpret natural law could be derived from the legislator and that, rightly understood, there should be no competition between the two institutions:

“[TRANSLATION] He [the judge] should also remind himself of his duty, which is to find the correct meaning of the law and not what the legislator should or could have said. In such a quest, would he overstep the boundaries of his professional duty, much in the same way as Roman Praetors, who through their interpretations of the law became independent law makers. If the judge seeks anything but the legislator’s intention, he has no honest wish to uphold and further justice”¹⁹.

In conclusion, the judge should, much in the same way as the legislator, refrain from disturbing the organic influence of natural law on people’s sense of morality – mirrored in their customs and customary law. Judges were not to disturb the natural development, nor, and more importantly, were they to question the legislator’s understanding and goals vis à vis the implementation of natural in positive law, but to further it.
The methodological conclusion that could be drawn from the reading of statutes and scholarly writings combined, is that, in the light of an understanding of natural law, the legal formalism which dominated Swedish legal methodology after the year of 1734 was not an end in itself, but a mean to create both a political and a methodological demarcation line between the legislator and the judiciary when it came to the interpretation of the unwritten law and hence the use of customs. The legislative act could transform the custom into valid law, or leave the question unregulated, giving room for the customary law to flourish on its own.
In a second step, the judge could use custom as a tool of interpretation of the written law, or apply it independently, on the implicit mandate of the legislator. The judge’s interpretation was merely regarded as a secondary legislative act, a second way of acknowledgement of natural law²⁰. The custom was therefore mainly a factual circumstance whereas customary law existed in a legal sense only when the popular opinio iuris was truly respected by the judiciary.

III. The Historical School and the Positivistic Outlook on Opinio Iuris in the Swedish Doctrine of Legal Sources

The formalistic view, which meant that the popular opinio iuris in principle could not, or should not, independently transform a custom into customary law, was challenged by Swedish legal scholars in the 19th century. In 1879 Ernst Victor Nordling claimed that “popular legal conscience” (a concept of which custom was the foremost representative) formed the foundation of all stately and private legislation:

“[TRANSLATION] In each state it exists therefore a common legal opinion, stemming from a common popular legal conscience, the true foundation of all legal developments”²¹.

Contrary to the formalist view of the late natural law era, where the subsidiarity of the unwritten law could be traced back to voluntary political and legislative acts, Nordling attributed the weaker influence and lack of independent use of customary law in modern societies to a more organic political development and to social factors, such as increased specialization and fragmentation of the popular conscience:

“[TRANSLATION] The common popular conscience is not however in all periods of the life of the state capable of taking the form of legal rules; this is but possible under simple conditions, when the general public take active part in the creation and upholding of the law. In such societies, the law consists merely of customary law ”²².

Other Swedish legal scholars had made the same remark, like professor Carl Olof Delldén who had pointed out that “[TRANSLATION] at a certain state of cultural development, the division of tasks will take place both in the immaterial and the material or industrial sphere of society is quite clear, but from that we cannot conclude that any deeper rupture or break should take place in society ”²³. In reality, the claims of Nordling and Delldén echoed the words of Savigny, founder of the German Historical School of Jurisprudence, the ideas of which Swedish legal scholars were now heavily leaning on:

“Bey steigender Cultur […] sondern alle Thätigkeiten des Volkes immer mehr, und was sonst gemeinschaftlich betrieben wurde, fällt jetzt einzelnen Ständen anheim”²⁴.

This didn’t mean, however, that the customary law was to be disregarded. On the contrary, it had its own and prominent place as an independent source of law. The requirement for this status, was a concrete enough custom, a limited population, a concrete time frame and most importantly the existence of opinio iuris:

“[TRANSLATION] Furthermore, customary law could also regulate situations that are not decided in statutes, especially in smaller local matters and places and among classes of the population with a common outlook and way of organizing their lives”²⁵.

There was no longer the understanding that the legislator should take charge and transform the popular conscience and its customs into written law. On the contrary, statutes were only one way among many of giving legal weight to customs. Other ways were equally important, not least the local norms following popular opinio iuris. In fact, customary law being the most natural source of law and being the closest to the common general or popular conscience (Volksgeist), Nordling modelled his understanding of other legal sources on it²⁶. Much like his German counterparts within the historical school, he regarded both case law and legal scholarship as a sort of professional, legal custom²⁷. This outlook was only natural: if law were to be perceived as something founded in time and space, rather than in metaphysics, then facts must be at the core of any legal rule, combined with a normative element. Accordingly, different norms in different legal sources could only be regarded as different means of formalizing and transforming these facts into legally relevant norms. The legal element could hence be more or less formal, from the flexible and shifting opinio iuris to the formal date of enactment of a statute. This opinio iuris could however also be reflected in statutes, case law and, to a certain degree, in legal scholarly writing. Regarding case law, Nordling argued that “[TRANSLATION] Case law has a lot in common with the popular conscience in that she is a custom, all be it more precise and reflected”²⁸.
A consequence of this radical change in the doctrine of legal sources was that the judge no longer, when using unwritten law, had to choose whether to make a fact, a custom, into positive law, or whether to interpret certain facts in society as traces of a norm in natural law and validate it as positive law. The task was from now on (only) to solve a conflict of norms within positive law. Norms could namely have their origin both in the public and private domain, in the form of statutes and case law, on the one hand, and self regulation, on the other. This pluralistic stance in the doctrine of legal sources also had been pointed out by Savigny, who had described the task of the judge of dogmatically oriented scholar as the creation of legal unity out of the multitude of sources – “die Gesamtheit der Quellen”. (“TRANSLATION the totality of the applicable sources”)²⁹. However, conflicts between norms called for methodological solutions and, as will be shown, Nordling and other Swedish scholars trusted in the Historical School to provide them.