American Society of Comparative Law

Against Metaphysics in Law: The Historical Background of American and Scandinavian Legal
Realism Compared
Author(s): Heikki Pihlajamki
Source: The American Journal of Comparative Law, Vol. 52, No. 2 (Spring, 2004), pp. 469-487
Published by: American Society of Comparative Law
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HEIKKI PIHLAJAMAKI
Against Metaphysics
in Law: The Historical
Background
of American and Scandinavian
Legal
Realism
Compared
1. INTRODUCTION
A classic theme of
comparative
law has been classification of le-
gal
families. The traditional
comparative
law accords Scandinavian
law a
place
in the Civil Law
family. Not, however, quite
in the nu-
clear
family.
The
leading
text book
by Zweigert
and
K6tz
sets Nordic
law aside from the Romanistic and German
legal
families as a dis-
tinct
subgroup.
For
Zweigert
and K6tz "it is clear that [
.. .]
Nordic
laws cannot be allocated to the Common
Law,
for the
only legal sys-
tems which
belong
to the Common Law are those which are histori-
cally
traceable to medieval
English law,
and the
history
of the Nordic
systems
has been
quite independent
of
English
law."'
The traditional classification
has, however, recently
become a
subject
of
mounting
criticism.2
Although
this article is not intended
as a contribution to that
debate,
I
hope
to be able to offer one
example
of
why
the traditional
taxonomy may
indeed be in need of revision.
One of the
problems
with the traditional classifications is that
they
are too
history-based
to
cope
with
apparent
similarities with some of
the world's
legal systems
which
historically
have little in common.
The benefit of the newer taxonomies is that
they
are not
solely
built
on
history.
This article deals with the
comparative history
of American and
Scandinavian
legal
realism. The
question
is
why legal
realism be-
came so
popular among
the American and Scandinavian
legal
schol-
ars of the
early
nineteenth
century. Why
did the same
development
not take
place
elsewhere in the Western world? The article
begins
with a brief account of the
prevailing explanation given
for the rise of
HEIKKI
PIHLAJAMAKI
is Lecturer in
legal history
at the
University
of Helsinki.
1. KONRAD ZWEIGERT & HEIN KOTZ,
AN INTRODUCTION TO COMPARATIVE LAW
277(1998).
2. The traditional classification is accused of
being
Western-centerd and thus
not able to deal
adequately
with the
legal systems
of
developing
countries. See
Ugo
Mattei,
Three Patterns
of
Law:
Taxonomy
and
Change
in the World's
Legal Systems,
43 AM. J.
COMP.
L. 5-44
(1995);
and Mark van Hoecke & Mark
Warrington, Legal
Cultures, Legal Paradigms
and
Legal
Doctrine: Towards a New Model
for Compara-
tive
Law,
47 INT'L & COMP. L.Q.
495-536
(1998).
469
470 THE AMERICAN JOURNAL OF COMPARATIVE LAW
[Vol.
52
legal realism,
both American and Scandinavian. I will then
proceed
to the recent
writings
of Pierre
Legrand
and William
Ewald,
ex-
tracting
their theories of the
cognitive
structures of
legal thinking
for
further use. American and Scandinavian
legal
traditions will then be
approached
with the
help
of that theoretical frame. The claim of this
article is that the
emergence
of
legal
realism in both the United
States and Scandinavia can be
explained by
the fact that
jurists
from
these
legal
cultures share fundamental similarities. In
general,
Ewald and
Legrand
call these elements of
legal thinking
its
cognitive
structures. The
cognitive
structure I will be
pointing
out in this
par-
ticular case is that of
legal pragmatism.
Much will be left unsaid in this short
piece.
This article is not
about
close-reading
American and Scandinavian realist
authors,
and
trying
to detect differences and similarities in their
jurisprudential
theories.3 Neither shall I
attempt
to establish
literary
connections a
la
"who-read-whom,"
or whether Scandinavian realists read Ameri-
can ones or vice versa. In a more
profound
treatment of the
subject
these links would
eventually
have to be
explicated.
This article ad-
heres to the conventional wisdom
according
to which no
significant
links of the kind existed.
2. REASONS FOR REALISM: THE TRADITIONAL EXPLANATIONS
Why compare
American and Scandinavian realism? Are we even
talking
about the same
thing?
Some authors have advanced the
point
that we are not. Hilaire
McCoubrey
and
Nigel
D. White claim that
the two variants of realism share little
except
for "the claim to offer a
'realist'
jurisprudence."
This is because American realists were
pri-
marily
interested in
finding
out "what courts
really do,"
while their
Scandinavian
colleagues
concentrated more on
understanding
law
"from a
psychological viewpoint."4
J. M.
Kelly
stresses the difference
between the two schools as well. For
Kelly,
"the courts were not cen-
tral to the
[Scandinavians']
position,
nor were the economic and social
factors which
might
condition courts'
workings." Instead, according
to
Kelly,
the Scandinavian
emphasis
was on
psychological
understand-
ing
of the law.5
It is often a matter of a writer's
strategic
choice whether he or
she wishes to
pay
more attention to similarities or differences. Al-
though
there is much truth to
it,
the distinction advanced in the two
British works seems nevertheless
oversimplified-which may
be un-
3. Jes
Bjarup
has taken
up
this theme in an
unpublished
seminar
paper "Legal
Realism at the Turn of the
Century" (International Conference of IVR; July 4, 1999;
New York, USA; on file with the author).
4. HILAIRE MCCOUBREY & NIGEL D. WHITE, TEXTBOOK ON JURISPRUDENCE 167
(1996).
5. J. M. KELLY, A SHORT HISTORY OF THE WESTERN LEGAL THEORY 369 (1992).
2004]
AMERICAN & SCANDINAVIAN LEGAL REALISM 471
derstandable in a textbook. But we need
only pause
to think about
Jerome Frank's
strong psychoanalytical emphasis
or
Alf
Ross's insis-
tence on law as social
policy,
and the difference between the Ameri-
can and Scandinavian schools becomes obscure. From the
comparative standpoint
of
trying
to
comprehend
how western law at
large
reacted to
turn-of-the-century economic, political, social,
and
scientific
pressures,
it seems therefore far more
important
and
appro-
priate
to
depart
from the essential feature that the two schools
shared,
that
is,
their
devastating critique
of
legal
formalism. A re-
lentless
mockery
of
langdellian
formalism united American
realists,
exactly
as Scandinavian realists shared a
contempt
for
Begriffsjuris-
prudenz,
the civil law variant of formalism.6 And
indeed,
when look-
ing
at the
scholarly explanations
for the two realist
movements,
one
cannot
help noticing
that the reasons behind both schools have been
conceived rather
similarly.
What then were the reasons for the success of
legal
realism in
America and Scandinavia? Several
explanations
have been offered for
the
emergence
of American
realism;
Scandinavian
legal
realism has
produced
much less
historiography.
I will first
briefly
summarize the
most common
explanations
of American
legal
realism.
They
are usu-
ally thought
to cover not
only
realism
proper,
but also the
"proto-real-
ism" of Oliver Wendell Holmes and Roscoe Pound. These
explanations may
be
gathered
under the common
concept
of social
engineering.
The
argument
from social
engineering actually
consists of two
closely
related themes.
First,
there is the influence of intellectual his-
tory,
or of
philosophy,
social
sciences,
and
European anti-conceptual-
ist
legal thinking.
The
philosophical pragmatism
of Charles Peirce
and John
Dewey
is
always given
as the
philosophical
framework un-
derlying legal
realism. Both
pragmatists
and realists
despised
meta-
physical
constructions and demanded that
philosophy
and law be
made to serve social needs.7 It is
emphasized
that
many legal
real-
ists,
at least in their more
programmatic writings although
not al-
ways
in
practice,
insisted that
legal scholarship
not isolate itself from
the social sciences. Recent studies have shown that
many leading
re-
alist scholars in fact were influenced
by
the German antiformalist
legal thinking,
in the vein of Hermann Kantorowicz and the
Freirechtsschule.8
6. See Heikki
Pihlajamiki,
Den
rdttsliga formalismen
och kritiken av den: En
jamforande granskning
av den
finska rattsvetenskapen
under 1900-talets
fdrsta
decen-
nier,
78 RETFOBRD 51-67
(1997).
7. The literature on American realism has become immense. On the connection
between
pragmatism and realism, see e.g.,
NEIL
DUXBURY,
PATTERNS OF
AMERICAN
JURISPRUDENCE 125-135 (1995).
8. On the
development
of American social science from the nineteenth century
to
the 1920s, see DOROTHY ROSS, THE ORIGINS OF AMERICAN SOCIAL SCIENCE (1993). It is
no wonder that the birth of the law and economics movement, as an
important
critic
472 THE AMERICAN JOURNAL OF COMPARATIVE
LAW [Vol.
52
This
brings
us to the second
standpoint,
elaborated around the
argument
from social
politics.
American
legal
realism is seen as a
leftist-oriented9
social
tool,1o
with the
help
of which it was
hoped
that
the
problems
caused
by
the late
nineteenth-century
industrialization
and urbanization could be remedied. This was
something
that the
preceding langdellian formalism,
so realism
claimed,
had failed to do.
Like its American
counterpart,
Scandinavian
legal
realism has
usually
been understood within the
general
framework of increased
state intervention
during
the
early
1900s. Thus
although
JORGEN
DALBERG-LARSEN links the
emergence
of
only
the first critical move-
ments
(RUDOLPH
VON IHERING and his
followers)
to the social
problems brought
with industrialization and sees actual
legal
realism
as a "manifestation of a new orientation based on
changes
in the
gen-
eral
conception of science,"
he also sees "the inclusion of social consid-
erations as . . . of decisive
importance
in the
political process"
following
the world-wide economic crisis of the 1930s."
According
to
JES BJARUP,
Scandinavian
legal
realists abandoned natural law theo-
ries as
metaphysical
and
legal positivism
as unscientific.
Instead, "ju-
risprudence
was to be understood as social
theory, legal policy
as
social
technology."'2 Finally,
MARKKU
HELIN
emphasizes
the connec-
tions between both American and Scandinavian realist
thought
and
the belief in
rationality, science, technology,
and social
planning
com-
mon to the entire Western world in the
early
twentieth
century. Key
words such as "functionalism" and social
engineering, according
to
Helin, aptly
characterize the world-view of the realists and their
way
of
conducting legal
research.'3
It would be futile to
try
to refute the social
engineering argument
or either of its variants as such.
Evidently
the
general
mood of social
engineering
has a lot to do with
legal
realism. I am
not, however,
convinced that this
explanation suffices
to account for
why
social en-
gineering was,
in the United States and
Scandinavia,
canalized into
legal
realism and not
something
else. And
why
did
legal realism,
or
its
equivalents,
not
emerge triumphant
in other
parts
of the Western
world? These
questions
can
only
be answered with the
help
of com-
parative
research.
of economic laissez
faire,
also dates to the
period
between 1890s and
1930s;
BARBARA
FRIED,
THE PROGRESSIVE ASSAULT ON
LAISSEZ FAIRE: ROBERT HALE AND THE FIRST
LAW AND
ECONOMICS MOVEMENT (1998). James E.
Herget,
The
Influence of
German
Thought
on American
Jurisprudence,
in THE RECEPTION OF CONTINENTAL IDEAS IN
THE COMMON LAW WORLD
1820-1920,
203-228 (Mathias Reimann ed. 1993).
9. Most
leading legal
realists had leftist
sympathies,
AMERICAN
LEGAL REALISM
52 (William W. Fisher
III,
Morton J.
Horwitz,
& Thomas A. Reed eds. 1993).
10. LAWRENCE M.
FRIEDMAN,
A
HISTORY OF AMERICAN LAW 689 (1985).
11. See Jorgen Dalberg-Larsen, Four Phases in the Development of Modern Legal
Science, SCANDINAVIAN STUDIES IN LAW 88-95 (1979).
12. JES BJARUP, SKANDINAVISCHER REALISMUS: HAGERSTROM - LUNDSTEDT-
OLIVECRONA-
ROSS
11-12 (1978).
13. HELIN, LAINOPPI JA METAFYSIIKKA 7.
2004]
3. SOCIAL ENGINEERING: THE PROGRESSIVE SOLUTIONS
By
social
engineering
I mean
"progressive" public
measures
taken to
remedy
the social
problems
caused
by
laissez
faire capital-
ism. In the sense that the term is thus
employed
here it
roughly
coin-
cides with the
building
of the social welfare state. Social
engineering
was of course no American-Scandinavian
phenomenon,
but occurred
in one form or another
practically everywhere
in the industrialized
Western world. As Daniel
Rodgers argues,
the
turn-of-the-century
European progressives developed
a wide
array
of solutions to the so-
cial
problems
of their
time, only
some of which materialized into
American
applications through
a
complex process
of intellectual and
political
choice.14 The lesson to be learned from
Rodgers's
work is
thus not
only
that social
engineering
was a common
phenomenon
on
both sides of the Atlantic at the turn of the twentieth
century,
but
that there were different
ways
of
engineering
societies. For
Rodgers,
there was "a
marketplace
for the
exchange
of
social-political
schemes,"
an arena for
competing
solutions to common
problems.
In-
deed,
as
Rodgers succinctly points out,
what was
particularly
charac-
teristic of the
beginning
of the twentieth
century
was not a
profusion
of
problems,
but rather an unforeseen number of solutions.15
Social
engineering
had an effect on law
everywhere
in the West.
As in other sectors of social
life,
an
ample
choice of solutions to the
ills of free rein
capitalism
was available in the
"legal marketplace."
Again,
not all the solutions were
accepted everywhere-in
each coun-
try,
some of them were
rejected.
In this
respect,
law was no different
from the
phenomena
of social life that
Rodgers
has studied.
Let one
example,
the German
one,
suffice to show that
legal
real-
ism was not the
only
means
accommodating nineteenth-century (pri-
vate)
law to the altered circumstances. The
Biargerliches
Gesetzbuch
(BGB),
of
course,
was an almost
pure product
of
nineteenth-century
liberalism. GERHARD DILCHER has described how German Rechtswis-
senschaft
and
legal practice,
not so much
statutory law, flexibly
ad-
justed private
law to the
changes
in circumstances in the
society
of
social
security
and mass
phenomena
in the
early
1900s. The most
important
"corrections" to
private
law took
place through
an exten-
sive
interpretation
of
general
clauses such as Treu und
Glauben,
and
it was the Freirechtsschule and its followers
(Interessenjurisprudenz,
14. See DANIEL T. RODGERS,
ATLANTIC CROSSINGS: SOCIAL POLITICS IN A PROGRES-
SIVE AGE (1998). For a
comparative history
of
progressivist thought
on both sides of
the
Atlantic,
see also JAMES T.
KLOPPENBERG,
UNCERTAIN VICTORY: SOCIAL
DEMOC-
RACY AND PROGRESSIVISM IN EUROPEAN AND AMERICAN THOUGHT, 1870-1920 (1986),
and for the emergence of the social welfare state in the United States, SIDNEY FINE,
LAISSEZ FAIRE AND THE GENERAL WELFARE STATE: A STUDY OF CONFLICT IN AMERICAN
THOUGHT, 1865-1901 (1956).
15. Rodgers, id. at 20.
474 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol.
52
Wertungsjurisprudenz)
that had built the intellectual basis for such a
style
of
interpretation
in
Germany.16
I will
provide
three
snapshot pictures
of the German reaction
against laissez-faire capitalism-and conceptual jurisprudence,
the
jurisprudential
embodiment of the former. I do not claim that these
modes of resistance were
typical
of
Germany only.
On the
contrary,
it
was from there that
many
of them
spread
to the rest of the world. The
first
snapshot portrays jurisprudence, Rechtswissenschaft.
Rudolf
von
Jhering's
central claim in his Der Zweck im Recht
(1877-1883)
was that
legal decision-making
involved
matching
the interests of dif-
ferent social
groups.
This could not be done without
having
recourse
to
political
and moral
arguments
which existed
independently
of the
legal system.
The
"meaning"
(Zweck)
of law was to
provide
for the
possibilities
of social life.7
Jhering's legacy
was then continued
by
a
heterogenous group
of
scholars,
such as EUGEN EHRLICH and HERMAN
KANTOROWICZ, usually grouped
under the
heading
of the Freirecht-
schule. The activists of the "Free law
movement,"
like
Jhering,
shared
a fundamental disbelief in the
ability
of the
supposedly
autonomous
and closed
system
of
Begriffsjurisprudenz
to
produce acceptable,
cor-
rect decisions all
by
itself.
The
practical syllogism, according
to the
critics,
did not work.
Legal
science needed rather to take into account
the
practical consequences
that
judicial
decisions
produced. Legal
sources could no
longer
be limited to
statutory
and
customary law;
economic
factors,
social
usefulness,
and
people's Rechtsgeftihl
also
had to be considered.'8 Scholars could
not, according
to the Freirecht-
ler, accomplish
their task without the
help
of a new
science,
Recht-
soziologie.
It was
up
to the
sociology
of law to describe the relations
between law and
society
on the one
hand,
and the "cultural values" of
law ("Kulturwert des
Rechtszwecks")
on the
other; dogmatic
scholar-
ship
a normative science could then decide between the alternatives
thus
brought
to the
fore.19
Without
legal sociology, legal dogmatics
was in
danger
of
remaining
"on a
primitive
level of
development,
on
the same level as the
organic
natural sciences which
operated
with
bare classifications when
they
came in contact with a
deeper biologi-
cal context."20
It
was
this Freirechtsschule
heritage that, according
to
16. The BGB itself did not
undergo profound reforms, except
for its book on
family
law, which, paternalistic
as it
was,
had fitted the codification
poorly
from the start.
See Gerhard
Dilcher,
Zur Rolle der
Rechtsgeschichte
in einer
Sozialgeschichte
des 20.
Jahrhundert,
ZEITSCHRIFT FOR NEUERE RECHTSGESCHICHTE 21 (4/1999): 397-398,
401-
402.
17. RUDOLPH VON
JHERING,
DER ZWECK IM RECHT 443-447 (1884).
18. Herget, supra
note 8, at 220.
19. HERMANN
KANTOROWICZ,
DER KAMPF UM DIE RECHTSWISSENSCHAFT (1906), re-
printed
in HERMANN
KANTOROWICZ, RECHTSWISSENSCHAFT
UND
SOZIOLOGIE:
AUS-
GEWAHLTE SCHRIFTEN ZUR WISSENSCHAFTSLEHRE 17-21 (1962).
20. Id. at 124-126.
2004]
James
Herget,
then came to have a
profound
influence on the forefa-
thers of
legal realism,
such as
ROscOE POUND,
in the United States.21
The second
snapshot
of the German reaction toward nineteenth-
century
liberal and
bourgeois
values that
emerged predominantly
in
the
drafting phase
of
Bitrgerliches
Gesetzbuch22 is of
corporatism.
Corporatism,
at least in its
pre-modern form,
was anti-commercial
and
promoted "communal," genossenschaftlich
values.23 Individuals
in a
corporate society
assemble themselves in
guild-like corporate
bodies on which the economic and
political organization
are
based;
industrial
enterprises,
in
turn,
assemble in cartels. In
Germany,
un-
ions and cartels
developed
after 1848.24
The idea of the state
directly intervening
in the laissez
faire
econ-
omy,
the welfare
state,
was also central to
corporatist political philos-
ophy.
The so-called
"professorial"
socialists
(Kathedersozialisten)
developed
the theoretical basis for the social welfare state in their
Verein
fiar Sozialpolitik. According
to ADOLPH
WAGNER,
"the social
question"-mass poverty
and the
pauperization
of the
working
class-could not be resolved without "state
capitalism," governmen-
tal intervention
by
means of social
policy.
Bismarck's social
policy
then rested on the idea of
integrating
the
working classes, perceived
as
revolutionary
and
dangerous,
into the
bourgeois society.25
In
legal philosophy,
OTTO VON
GIERKE
was
the best-known
repre-
sentative of
corporatist
views. In his
works,26
Gierke
fiercely ques-
tioned the individualistic intellectual foundation of the BGB. Without
abandoning
the idea of the
Rechtsstaat,
he advocated a
society
based
on communal
solidarity,
the roots of which he believed to be medie-
val. William Ewald describes Gierke's basic ideas as follows:
"[H]uman society
and human
politics
must be
seen,
not as
composed
simply
of atomistic individuals on the one hand and a monolithic
state on the
other,
but as
involving
an irreducible
plurality
of associa-
tions,
with
overlapping memberships,
and
ranging,
in
graded steps,
21. See
Herget, supra
note
8,
at
224,
228.
22. See
FRANZ WIEACKER,
PRIVATRECHTSGESCHICHTE DER NEUZEIT 479
(1967);
and
MICHAEL
JOHN,
THE ORIGINS OF THE CIVIL CODE 252 (1989).
23. James
Q. Whitman, Early
German
Corporatism
in America: Limits
of
the 'So-
cial' in the Land
of Economics,
in THE RECEPTION OF CONTINENTAL
IDEAS, supra
note
8,
at 230. Whitman touches
upon
the same theme in his article The Moral Menace
of
Roman Law and the
Making of
Commerce: Some Dutch
Evidence,
105 YALE L. J. 1841-
1889 (1996).
24.
Whitman,
id. at 230-231.
25. JARI HEINONEN, PIENVILJELIJAPROJEKTISTA SOSIAALIVALTIOON: NAKOKULMIA
SUOMALAISEN
SOSIAALIPOLITIIKAN SYNTYYN, KEHITYKSEEN JA MURROKSIIN 1800-LUVULTA
NYKYPAIVAAN 66-68 (1990).
26. DER ENTWURF EINES BURGERLICHEN GESETZBUCHES UND DAS DEUTSCHE RECHT
(1889) and DIE SOZIALE AUFGABE DES PRIVATRECHTS (1889) were the most influential.
52
from the
family
to charitable and educational and trade
associations,
to various forms of
corporations,
and
finally
to the state."27
The third
snapshot picture
is taken from the
court-room,
and
concerns the civil law doctrine of clausula rebus sic stantibus
(Wegfall
der
Geschdftsgrundlage).
According
to the clausula
doctrine,
a con-
tract binds
only
as
long
as circumstances remain the same as
they
were when the contract was concluded. The doctrine was a creation of
medieval
lawyers
and had its
hey-day
in the
seventeenth-century.
Nineteenth-century jurisprudence, however,
became hostile to
clausula rebus sic
stantibus,
since it ran counter to the idea of free-
dom of contract and thus the basic tenets of
developing capitalism.
For this obvious
reason,
clausula was not
incorporated
in the
BGB,
neither was
any
other rule
dealing
with the
problem
of altered
circumstances.28
However,
after the First World War this
problem emerged
in con-
nection with causes
cedlbres
such as the
Dampfpreisfall.
In this
case,
a landlord had
agreed
in 1912 to
provide
his tenant all the steam that
the latter needed to run a small
factory
in rented
premises.
As a re-
sult of the war and the
ensuing inflation,
the
price
of the coal neces-
sary
to
produce
the steam had
skyrocketed,
so that the landlord no
longer
considered the contract
binding.
He now received much less in
rent than what he had
spent
on the coal.
Deviating
from the basic
doctrine of
pacta
sunt
servanda,
the
Reichskammergericht
ruled in
1920 in favor of the landlord. The modern doctrine of
Wegfall
der Ges-
chdftsgrundlage
then
developed
out of this decision.29 This is of
course
just
one of the
many examples
of how the BGB was
adjusted
to
the
changed
social
circumstances,
but it
goes
to show how the
judici-
ary
and the civil law doctrine were forced to react to the
overly rigid
system,
from
today's perspective,
of
nineteenth-century
civil law.
The
snapshots
could be
multiplied,
but I think I have
already
proved my point,
that
is,
that social
engineering
was not
only
a mat-
ter for the United States and
Scandinavia,
and that there were differ-
ent
ways
of
alleviating
the
problems
of hard
capitalism
in the
legal
domain.
Legal
realism was
only
one of these
ways.
If this is the
case,
what is it that made social
engineering
turn into
legal
realism in
some
parts
of the
world,
and
legal
realism turn into the
predominant
paradigm
of
legal thought?
What did the United States and Scandi-
navia have in
common,
what made
legal
scholars in both of these
parts
of the world devote their
energies
to
legal
realism in such an
overwhelming way?
I
suggest
this is because there is
something
simi-
27. William
Ewald,
What Was It Like To
Try
A
Rat,
143 U. PA. L. REV. 2076-2077
(1995).
28. REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS: ROMAN FOUNDATIONS OF
THE CIVILIAN TRADITION 579-581 (1996).
29. On the
Dampfpreisfall,
see UWE WESEL, GESCHICHTE DES
RECHTS: VON
DEN
FRUHFORMEN
BIS ZUM VERTRAG VON MAASTRICHT 447-448 (1997).
2004]
lar in the
way
Scandinavian and American
lawyers
have tradition-
ally thought
about law. One could talk about common
cognitive
elements in the American and Scandinavian
legal thinking.
In order
to
get
a
grasp
of this
problem,
I will now introduce into this article
two writers in the field of
comparative legal scholarship,
Pierre
Legrand
and William Ewald.
4. LEGRAND AND EWALD: THE COGNITIVE APPROACH TO
COMPARATIVE LAW
PIERRE LEGRAND
fiercely opposes attempts
to create a common
European
civil code.
Although
I do not
necessarily
share his
pessimis-
tic views on the
matter,
I think his
approach
is
helpful
in
trying
to
comprehend
differences and similarities between
legal systems.
Legrand's
main concern in numerous articles is the difference be-
tween common and civil. He establishes the main difference as "two
different
ways
of
thinking
about the
law,
about what it is to have
knowledge
of law and about the role of law in
society."
It is a
ques-
tion,
so
Legrand claims,
of two different mentalites. Common and
civil law have different
ways
of
understanding
of
"facts,
rules and
rights
... the nature of
legal reasoning
. .. the role of
systemization
and... historical time." The civil code is an
important epistemologi-
cal framework for the
civilian-although
not to a Nordic one-
whereas the common
lawyer
resists
attempts
at
systematization
and
prefers
to
proceed empirically,
case
by
case.30
These differences are well-known. It is
important, however,
to
note how
Legrand
links
legal
culture to
general
culture. The different
"epistemologies
are conditioned
by,
and
constantly
reinforce in their
turn, deeply-embedded
world-views within the societies in which
they
have
developed
to the
point
where there can be found ... a
pattern
of
congruence
between a
legal
culture and a culture tout
court."3'
Pre-
cisely
because the
legal
mentalities are so
deeply
embedded in their
general
cultural
surroundings,
there
is, according
to
Legrand,
no
hope
of them ever
converging regardless
of whether common
legisla-
tion for
Europe
is
passed.
Whether
Legrand
or REINHARD
ZIMMERMANN,32
his chief
oppo-
nent in matters
concerning
unification of
European
civil
law,
is
right,
whether and on what conditions the
gulf
between civil and common
law can be
bridged,
need not concern us here. What is
interesting
is
that
Legrand
links the fundamental differences-and
thus,
similari-
ties-between
legal systems
to
deeply
rooted cultural values.
Legal
30. See Pierre Legrand, Against a European Civil Code, 60 THE MODERN LAW RE-
VIEW 45-46 (1997).
31. Id. at 48.
32. Reinhard Zimmermann, Das
rismisch-kanonische
ius commune als Grundlage
europtiischer Rechtseinheit, JURISTEN-ZEITUNG 1992: 8-20.
LAW [Vol. 52
culture,
or even law in a stricter
sense, according
to
Legrand,
cannot
be
changed just
like that without
vainly trying
to tear them from
their cultural roots.
Contrary
to what Alan Watson
suggests,33
Legrand
stresses that the mind of a
legal professional
never
operates
in a cultural
vacuum,
but rather as
part
of a
complex
cultural whole.
We thus need to look at the
cognitive aspects
of
legal thinking
in com-
paring legal
cultures.
WILLIAM EWALD reaches a similar
conclusion, although
his con-
cern is a different
one,
that of the
"deplorable"
state of
comparative
law. The traditional
discipline, says Ewald,
suffers from a "malaise"
attributable to an
overly
narrow focus "on
describing
the
modern-day
black-letter
rules;
it is
insufficiently
theoretical and
insufficiently
concerned with
legal history."
The narrow focus accounts for the fact
that
comparative
law has so
overwhelmingly
concentrated on
private
law,
at the the
expense
of those branches of law that are more
clearly
affected
by politics
and
history,
such as
constitutional,
administra-
tive,
and criminal
law.34
Ewald knows that he is not the first to criticize
comparative
law
for
being boring
and unfruitful. But he claims that the
critique
so far
has missed the
point.
It is not
enough, says Ewald,
to substitute
"structural" considerations for the traditional methods. It is not
enough
to
say
that
comparatists ought
to direct their attention to-
wards
economic, social,
or
political
factors that condition law.35 It
may
be
argued
with
good
reason that these factors are
indispensable
if we are to understand the
margins
within which
legal change
can
take
place.
This
spatial metaphor is, however, misleading
because it
suggests
that
political, social,
and economic considerations can be de-
tached from the
"purely" legal
or
ideological
ones.
The stress on
political, economic,
and social factors
represents
an
"outsider's view" of law. It does not
sufficiently clarify why legal pro-
fessionals in different countries choose different or similar
ways
of
realizing
the same
goals.
If we want to find answers to these core
questions
of
legal history, comparative law,
or
comparative legal
his-
tory-whatever
we choose to call it-we need to
peek
into the head of
the
legal professional.36
According
to
Ewald, comparative
law should thus abandon its
traditional textualism. It
should, however,
concern itself
only
with
extra-legal considerations,
but should move on to consider how the
legal community
"conceives itself." Ewald
is,
like
Legrand,
interested
in the
"'cognitive'
structure and the 'institutional culture' of the law.
33. ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW
(1974).
34. Ewald
supra note 27, at 1975, 1982.
35. Id. at 2108-2109.
36. Id. at 2108-2109.
2004]
If the
comparatist manages
to
comprehend
these
structures,
he or
she
may
be able to understand a
legal
culture alien to his or her
own,
be it different for
geographical
or historical reasons. The
comparatist
may, indeed,
be able to
comprehend,
as Ewald tries
to,
what it was
like to
try
rats in the middle
ages.37
Ewald and
Legrand
thus share an interest to the
cognitive
ele-
ment in
legal thinking. Although
it is
indispensable
to locate
legal
thinking
in its social
context,
it is not
enough simply
to use "more"
social science or more economics in
legal
studies. If
legal differences,
be
they spatial
or
temporal,
are to be
explained only
as a function of
social
power
relations of economic
effectiveness, something
essential
will be left out. It
may
be
possible
to
provide
a credible account of how
medieval animal trials increased social cohesion. But as Ewald
puts
it,
this is not much more than self-evident: this is what trials tend to
do most of the time. The
question
is
why
animals trials that were
"chosen" to be the
way
to
provide
for more social cohesion.
Why
did
the
striving
towards social cohesion not find other
channels.
Why
did
the medieval
jurists
see it as so natural to
try
rats?
And,
back to our
theme, why
did the
legal
academia in some
parts
of the world feel so
good,
at the
beginning
of the 1900s in
turning against metaphysics
in
law, trying
to convert it into a tool of social
engineering?
It is difficult
to answer these
questions
without
taking
what
Legrand
and Ewald
have called
cognitive
structures of
legal thinking
into consideration.
Let me
briefly
summarize
the main
points
of this
study
so far. I
have claimed that the traditional account which sees social
engineer-
ing
as the
prime
reason behind the
emergence
of
legal
realism in both
America and Scandinavia at the
beginning
of the twentieth is inade-
quate.
This is because it does not tell us
why
social
engineering,
which took
place everywhere
in the Western world took the form of
legal
realism in
only
some
parts
of the Western world when
applied
to law.
Legrand
and Ewald
depart
from the traditional
comparative
approach
concentrated on the
legal texts; instead, they
claim that we
need to look at the
cognitive
structure of law embedded
deep
in the
mind of the
legal
scholar. This seems to be the essence of
comparative
legal scholarship
for
Legrand
and Ewald.
I will
go
on to
suggest
that there are indeed common
cognitive
structures that unite American and Scandinavian
legal thinking
and
separate
them from continental
thought.
It is these common ele-
ments,
I will
argue,
that caused American and Scandinavian
legal
science to channel the desire for social
engineering
in the direction of
legal
realism.
37. See id. at 1986.
LAW [Vol.
52
4. COMMON LAW PRAGMATISM AND AMERICAN LEGAL THINKING
ANTHONY KRONMAN's Lost
Lawyer
describes the traditional com-
mon
lawyer
as
follows:38
"The common
lawyer instinctively
mistrusts abstract
specu-
lation. He believes that
general principles
have a role to
play
in the law but doubts that most serious
disputes
can be de-
cided
by
reference to them alone. In
addition,
he insists that
hard cases
require
the exercise of
practical
wisdom: a subtle
and
discriminating
sense of how the
(often
conflicting) gen-
eralities of
legal
doctrine should be
applied
in concrete
disputes."
The traditional
lawyer
Kronman has in mind
operates
on
practical
wisdom, "prudentialism,"
as Kronman calls it. Cases
go
before theo-
ries,
not vice versa. The
good
old common
lawyer
solves
practical
problems,
and in
solving
them
proceeds step by step,
not within
gran-
diose theoretical
frameworks, just
like common law itself. It is the
American case law method that trains students in these virtues
best.39
Despite
his fondness for the case law
method,
Kronman's
story presents Christopher
Columbus
Langdell,
the father of the case
method,
as one of the cons of his
story. Langdell,
Kronman
argues,
drifted too far from the
prudentialist
ideal in his efforts to
systema-
tize the common law.40
It need not be decided here whether Kronman is
right
in
arguing
that common law since Thomas Hobbes has been in constant deterio-
ration. Kronman's
starting point,
the
portrait
of the common
lawyer
as a
pragmatist, proceeding empirically,
case
by
case to
prudent
solu-
tions is worth attention. I will take
up
two further
examples
that
serve as evidence of the
pragmatism
of the common law culture.
These
examples
are also intended to show that there are
important
similarities between American and Scandinavian
legal
cultures.
The first
example
is the trial
jury. Although
the
origins
of the
jury
continue to be
debated,41
one
aspect
of the institution remains
clear. It is
through
the
jury
that the
English judicial system
re-
mained
heavily dependent
on
lay participation, quite
unlike the
legal
systems
on the continent. Professional
jurists acquired increasing
in-
38. ANTHONY
KRONMAN,
THE
LOST LAWYER: FALLING IDEALS OF THE LEGAL PRO-
FESSION 21
(1994).
39. Id. at
15-16, 21,
28.
40. See id. at 180-185. For a different view on
Langdell's
case
method,
see WIL-
LIAM P.
LAPIANA,
LOGIC AND
EXPERIENCE: THE ORIGIN OF MODERN AMERICAN LEGAL
EDUCATION
(1994);
and of
Langdell's
classroom
teaching,
Bruce A.
Kimball,
'Warn
Students That I Entertain Heretical
Opinions
Which
They
Are Not to Take As Law':
The
Inception of Case Method Teaching
in the Classroom of the Early C. C.
Langdell,
1870-1883, LAW AND HISTORY REVIEW 57-140 (1999).
41. For the
points
of debate and the current Stand der Lehre see Mike Macnair,
Vicinage
and the Antecedents of the
Jury,
17 LAW AND
HISTORY REVIEW 537-590
(1999).
2004]
fluence in French local courts at the
expense
of
laymen
from the thir-
teenth
century
onwards.42 The
appellate courts, Parlements,
with
their
complex
Roman-canonical
procedure
and
emphasis
on Roman
law,
were from the start dominated
by legal professionals
and
churchmen trained in canon law.43 The German
Schbffen
in most of
the local courts and the
Oberhdfe
likewise lost their
positions
to
learned men with the
reception
of Roman law in the late fifteenth
and
early
sixteenth centuries. As in
France,
German
legal procedure
was
"scientific," scholarly,
and
increasingly
based on written docu-
ments,
and thus more and more
inaccessibly
to
laymen.
One of the
most
important
milestones on the
way
to the
reception
and
thus,
to
the
ousting
of
laymen
from the German
judicial system,
was the
founding
of the
Imperial
Chamber Court
(Reichskammergericht)
in
1495.44
The late middle
ages
and
early
modern
period
thus
represent
a
major point
of
divergence
in the fate of the western
legal systems.
From this time
on,
the continental
legal systems
continued to be
pro-
fessionally
staffed. The
English
did
not, however,
abandon its its tra-
dition of
strong lay participation, although
it is true that the
legal
profession gained increasing importance
in the
English system
as the
centuries
passed. Legal professional appeared
at the central courts of
Westminster
by
the thirteenth
century,45
and it has been shown that
the
professional lawyer
assumed an active role in the
English jury
trial in the course of the 1700s.46
However,
the
jurists
of the
eight-
eenth
century
were not
professionals by
continental
standards,
be-
cause
they
received their
training
in the Inns of Court and not in
universities. This
practice
continued until late in the nineteenth cen-
tury,
so that between 1850-1950 most
English lawyers
still received
little or no formal
university
education in law.47
This late medieval and
early
modern
divergence
had
important
consequences
for the
argument
of this article. On the
continent,
law
had been conceived as a science ever since the
reception
of Roman
law.
Although
the center of
legal
science shifted first from
Italy
to
France,
from France to the
Netherlands,
and from the Netherlands to
Germany during
the course of the
centuries, legal
treatises and text-
books flourished from the late middle
ages
in all of these countries
42. See JOHN P.
DAWSON,
THE ORACLES OF THE
LAW
271-272 (1968).
43. Id. at 278-283.
44. Id. at 196-213. On the
opposition
to learned law in
Germany,
see GERALD
STRAUSS, LAW, RESISTANCE,
AND THE STATE: THE OPPOSITION TO ROMAN LAW
IN REFOR-
MATION GERMANY (1986).
45. J.H.
BAKER,
AN INTRODUCTION
TO
ENGLISH LEGAL HISTORY 179
(1990).
46. J.M. Beattie, Scales of Justice: Defense Counsel and the
English Criminal
Trial in the
Eighteenth
and Nineteenth Centuries, 9 LAW AND
HISTORY REVIEW
221-
267 (1991).
47. See Michael H. Hoeflich, The Americanization of British Legal
Education in
the Nineteenth
Century,
8 JOURNAL OF LEGAL
HISTORY
244-258 (1987).
LAW [Vol.
52
and
many
other continental
regions.48
Law without
legal
science and
university-educated legal professional
became
unimaginable.
On the
continent,
the life of the law was
logic
rather than
experience.
The situation in
England
was the reverse.
Despite Bracton,
Glanvill, Hale, Coke,
Blackstone and the rest of the
great English
legal scholars, jurisprudence
never
acquired
the
position
there it had
gained
on the continent.49 Law was
always
the
judge's domain,
and
later the trial
lawyer's,
but
especially
the
layman's. Laymen
had to be
taken into account. Because of the
laymen
in
courts, legal
science had
little chance of
making
its
way
to the
English
courts or to
legal
educa-
tion,
which was
largely "on-the-job" apprenticeship training.
The so-
lutions at common law were
pragmatic
solutions to
legal problems.
They were,
at least in
principle,
made to work in
practice
and not to
match
scholarly categories neatly.
The
paradox
of this account lies in the fact that the common law
too, despite
its
alleged pragmatism, grew
as
complex
and inaccessible
to
laymen
as continental law had become. An
example
of this is the
growth
of the law of evidence in the nineteenth
century.50
In
the mid-
nineteenth
century,
the
training
at the Inns of Court also increas-
ingly
started to resemble continental academic studies.5'
Complexity
unavoidably
resulted from the social
changes
in the era of industriali-
zation. But even the
English complexity
was different. It was a com-
plexity
which resulted from the will to
proceed empirically
in
law,
a
complexity
which resulted in an
ever-growing
number of
precedents
that needed to be mastered
by legal professionals.
It was the kind of
complexity
which at least tried to
stay close,
if not to the
layman's
way
of
understanding
human
life,
at least to
solving legal problems
with
regard
to the
practical
outcome of
judicial
decisions.
But I think we have come far
enough
in the
history
of
English
law. It will have
emerged by
now that
English
common law has been
a
traditionally pragmatist enterprise.
Our treatment of the theme
has, however, given
rise to two further
questions.
To what extent
does American law share this characteristic? And what
happened
to
make American law but not
English,
turn towards realism in the
early
decades of the twentieth
century?
As Kronman's
picture
of the
"good
old" common
lawyer shows,
American law shares the basic
pragmatist
tenet of its British
origins.
American
law, however, began
to
develop quite early
in a different
48. See
Douglas
J.
Osler,
The
Myth of European Legal History,
16 RECHTSHIS-
TORISCHES JOURNAL 393-410 (1997).
49. See PETER
STEIN,
LEGAL EVOLUTION: THE STORY OF AN IDEA (1997).
50. See CHRISTOPHER ALLEN, THE LAW OF EVIDENCE IN VICTORIAN ENGLAND
(1997).
51. See Raymond Cocks, 'The Exalted and Noble Science of
Jurisprudence'.
The
Recruitment of Jurists with
'Superior Qualifications' by
the Middle Temple
in the Mid-
Nineteenth Century, 20:2 JOURNAL OF LEGAL HISTORY 62-94 (1999).
2004]
direction from
English
law. The influence of civil law was
already
considerable in
post-revolutionary
American
jurisprudence,
and both
formalism and realism were influenced
by European jurisprudence,
among
other factors.52 American law was
stripped
of
many
of the
original English complexities.
Procedures became
simpler,
and
many
states
passed legislation allowing
citizens even without
legal
educa-
tion to
practise
law.53 All
in
all,
it
may
be said that the role of
legal
scholarship
has been
greater
in America than in
England.
The role of
legal scholarship
became
especially important
after the
emergence
of
the full-time
professoriate
in the second half of the nineteenth cen-
tury, starting
with James Barr Ames at Harvard Law School.54
Why
did American law become more "scientific"? This is an im-
portant question,
for without this scientification American law it
would be difficult to
imagine
either the so-called formalist or realist
movements
taking
root. LAWRENCE FRIEDMAN
explains
the success of
Langdell's
case method-the first
phase
of scientific law in
America-by
the solution it
provided
for the
problem
of
treating
all
the different state
legislations
in law
teaching.55
The United States
also lacked
something
which
England
had: the
possibility
of effec-
tively standardizing
law with the
help
of a centralized
judiciary
alone. As JEAN
LOUIS
GOUTAL
has
argued, England only
had one
legal
system,
and the
country
was small
enough
to allow for a concentrated
judicial system
and a bar in London. The United
States, however,
already
had 25
legal systems
in the 1840s when the
population
of the
country
was lower than that of
England.
American law was for these reasons much more in need of stand-
ardization, systematization,
and abstraction than
English
law.56
American
anti-positivism,
as Mattei has called
it,
was thus
created,
and nation-wide
legal
education and
jurisprudence
became
possi-
52.
Herget, supra
note 8.
53.
Zweigert
&
Kbtz, supra
note
1,
at 214: see also David
Sugarman, Legal
The-
ory,
the Common Law Mind and the
Making of
the Text Book
Tradition,
in LEGAL
THEORY AND THE COMMON
LAW
28-29 (William
Twining,
ed.
1986).
54. On the
growth
of the
German-type professoriate
and the
general
administra-
tion on behalf of the American academic
community
toward German
scholars,
see
Mathias
Reimann,
A Career in
Itself:
The German
Professoriate
as a Model
for
Ameri-
can
Legal Academia,
in THE RECEPTION OF CONTINENTAL IDEAS.
Cf.
Howard
Schweber,
The 'Science'
of Legal
Science: The Model
of
Natural Sciences in Nine-
teenth-Century
American
Legal Education,
17
LAW
AND
HISTORY REVIEW
421-466
(1999). Schweber,
I
think, exaggerates
the influence of natural sciences on American
jurisprudence
at the
expense
of the
European
models of
legal
science. Both Reiman
and Schweber
rightly
stress the
importance
of
seeing legal professionalization
as
part
of the
general nineteenth-century development
of
professions.
See also ESA
KONT-
TINEN, PERINTEISESTI MODERNIIN: PROFESSIOIDEN YHTEISKUNNALLINEN SYNTY
SUOMESSA (1991).
55. Friedman, supra note 9, at 618.
56. Jean Louis Goutal, Characteristics of Judicial Style in France, Britain and the
U.S.A., 24 AM. J. COMP. L. 68-69 (1976).
52
ble.57
What worked in
English
law to run a modern
society
no
longer
functioned in the more
complicated and,
as time
passed, larger legal
circles of America.
The American case
presents
us with a curious
amalgam
of com-
mon law
pragmatism
and the civilian scientific attitude towards law.
Although
it has been shown
by
Mike
Hoeflich,
Peter
Stein,
David
Sugarman,
and others that similar
changes
took
place
in
England
as
well,
their studies also show that these
changes
were far less radical
and much less
profound
than those
produced
in the United States.
My point is, thus,
that American law
(and
legal
science)
has retained
much of the
original
common law
pragmatism,
whereas at the same
time
space
has been
provided
for a
European-type
scientific
approach
towards law. This scientific
emphasis
in American law is of course
precisely
what
Anthony
Kronman finds so
disturbing
when he de-
scribes current American
scholarship:"5
"So
powerful
is the disdain for the claims of
practical
wisdom
that writers as different as Richard Posner and Roberto Un-
ger
share that I am
tempted
to describe it as the
central,
if
unrecognized, orthodoxy
of American
legal scholarship
today."
Kronman,
in
fact,
divides American
legal
realism into two
separate
streams of
thought,
the scientific realism of the 1920s and
1930s,
and
the more mature realism which he labels
"prudentialist,"
this
being
the fruit of Karl
Llewellyn's
later career as
represented
in The Com-
mon Law Tradition
(1960). I would, however,
call into the
question
the usefulness of such distinction and claim that even the "first-
wave" realists combined traditional common law
pragmatism,
or
prudentialism,
with a newer
thinking inspired by
social science. We
find much the same kind of an intellectual blend in the
history
of
Scandinavian law.
6. SCANDINAVIAN PRAGMATISM: LAW FOR LAYMEN
Scandinavian law is
also, by tradition, lay-dominated.
I will
give
two
examples
to demonstrate this. The first deals with the
history
of
Swedish-Finnish
judiciary;
the
second,
with the Swedish-Finnish le-
gal
literature.
As is the case with the
English jury,
the
origins
and functions of
the Swedish
ndmnd
have been much debated.59
Again,
this
piece
is
not intended as a contribution to that debate. Suffice it to
say
that
what the Swedish court
system
shares with the
English one,
and
57. Mattei, "Why the Winds
Change."
58. See Kronman, supra
note 38, at 158.
59. See PIA
LETTO-VANAMO, Karajayhteison oikeus:
Oikeudenkaytto
Ruotsi-
Suomessa ennen valtiollisen riidanratkaisun vakiintumista 226-229 (1995) and the
references therein.
2004]
what
distinguishes
it from the continental model is the dominant role
of
lay people
in the
judicial
structure.
Professionalization of the
European judiciary
went hand in
hand,
as said
above,
with the
reception
of Roman law. The
depth
and extent
of the Swedish
reception
of Roman law
is,
in
fact,
one of the themes of
legal history
still
waiting
for a modern treatment. Whatever
recep-
tion there was in
Sweden,
so it
seems, mainly
occurred in the seven-
teenth
century,
if we exclude the influence of learned law and learned
lawyers
in the canon law courts. The Swedish
reception was,
there-
fore,
associated with the
founding
of
appeals
courts and universities
in the seventeenth
century.60
Unlike in France and
Germany,
even thereafter the lower courts
always
remained in the hands of
laymen.
The
major
mode of
lay par-
ticipation
since the middle
ages
had been the
namnd,
a
panel
of local
laymen
which had a collective vote
against
the
judge
in all
matters,
both factual and
legal. However,
until the nineteenth
century
not
only
the
panel members,
but also local court
judges
were often un-
trained in law or had little
legal training.61 Prosecutors,
at least in
Finland,
were
rarely jurists
before the late 1800s.62
Legally
trained
attorneys appeared
in towns in the seventeenth
century;63
in
country
courts and criminal cases
they
remained a rare
sight
until this cen-
tury.64 City
courts
were
organized differently,
but even there
jurists
were far from common.
What
accounts, then,
for the
lay
domination in Sweden? The
pov-
erty
of the
country
is one
thing.
Universities were
founded,
and law-
yers needed, trained,
and
paid
in
regions
where economic resources
permitted
their
employment
as counsel in
legal disputes
and
princely
administrations,
and where the financial interests involved
justified
the investment. Medieval and
early
modern Sweden was
hardly
one
of the wealthiest
regions
in
Europe.
The reasons for
why
this was the
case
fall, however, beyond
the
scope
of the
present study.
60. The standard work on
reception
of Roman law in Swedish
appellate
courts
continues to be
Stig Jagerskiild,
Studier r6rande
receptionen
av
frdmmande
rdtt i
Sverige
(1963).
A short version in
English
is
Stig Jagerski6ld,
Roman
Influence
on
Swedish Case Law in the 17th
Century,
SCANDINAVIAN STUDIES IN
LAW 1967,
179-209.
61.
YRJO BLOMSTEDT, LAAMANNIN- JA KIHLAKUNNANTUOMARINVIRKOJEN LAANIT-
TAMINEN JA HOITO SUOMESSA 1500- JA 1600-LUVUILLA (1523-1680): OIKEUSHAL-
LINTOHISTORIALLINEN TUTKIMUS
(1958).
62. See HEIKKI YLIKANGAS,
VALTA JA VAKIVALTA KESKI- JA UUDENAJAN TAITTEEN
SUOMESSA 183
(1988).
63. PIA
LETTO-VANAMO, SUOMALAISEN ASIANAJOLAITOKSEN SYNTY JA VARHAISKEHI-
TYS:
OIKEUSHISTORIALLINEN TUTKIMUS (1989).
64. This was the impression
I
gathered from the courts records I researched for
my study EVIDENCE, CRIME, AND THE LEGAL
PROFESSION:
THE EMERGENCE OF FREE
EVALUATION OF EVIDENCE IN THE FINNISH NINETEENTH-CENTURY CRIMINAL PROCE-
DURE (1997).
52
Sweden was also a
country
of weak feudalism and a centralized
administrative
structure, "Europe's only
true absolutist state."65 A
simple and,
from the seventeenth
century onwards,
centralized
judi-
cial structure
corresponded
to a
simple
administrative structure.
There were
practically
no local
princes
with
legal
advisers of their
own,
and
judicial power
was
not,
as in continental
Europe, dispersed
among
several levels of feudal lords. For the sake of
comparison
let it
be mentioned that in some French
regions
there were
eight
levels of
judicial instances,
feudal and
royal
courts counted
together.66
This is
of course to be
explained by
the
complexity
of the feudal
organization.
The
appeals
instances were
not,
needless to
say,
run
by laymen,
but
required
lots of
jurists.
Sweden could
get by
with far fewer.
Legal scholarship
in Sweden
emerged
in the seventeenth cen-
tury.67
Swedish
lay domination, however,
like the
English one,
led to
a
relatively slight legal
literature. The
legal
treatises were
few,
and
the
important
writers of the seventeenth and
eighteenth
centuries
can almost be counted with the
fingers
of two hands. The
change
in
the
quantitative respect only
came in the late nineteenth
century.
Swedish
early
modern
legal scholarship
reflected the idea of law
as
pragmatic activity.
The
major pieces
of Swedish seventeenth and
eighteenth century legal
literature were intended as
practical guide
books for
judges.
Law in Swedish books was
packaged
in a
simplified
form,
because there was no market for the elaborated learned law of
the continental
type.
I have treated one such
example,
that of evi-
dence
law,
in a recent work which shows the elaborated continental
evidence theories were indeed known in
Sweden,
but in a
diluted,
simplified
form
compared
to continental
jurisprudence.68
Much the
same can be
gathered
from
Jaigerskiild's
study
of the
reception
of Ro-
man civil law in the Swedish seventeenth
century appeals
courts
practice.69
Swedish
legal
literature was intended for readers with lit-
tle
or no
training
in law who had no
way
of
mastering
difficult
legal
concepts
and doctrines. This is a
huge
difference from continental Eu-
rope,
but much less
different, again,
from the common law
system.
Towards the end of the nineteenth
century,
to be
sure,
the differ-
ences between Swedish law and the
European
core areas diminished.
But
changes
of the kind in
question
take a
long
time.
Against
the
traditional
pragmatist background
of Swedish
law,
the
ways
in which
social welfare state worked its
way
into Swedish
legal scholarship
be-
65. SEPPO TIIHONEN, HERRUUS: OSA 2, RUOTSI
JA VENAJA 50-56 (1994).
66. JOHN P.
DAWSON,
A
HISTORY OF LAY JUDGES 68,
82 (1960).
67. The best account of the
history
of Swedish
legal
literature is LARS BJORNE,
PATRIOTER OCH INSTITUTIONALISTER: DEN NORDISKA RATTSVETENSKAPENS HISTORIA,
DEL I, TIDEN FORE AR 1815 (1995); and LARS BJORNE, BRYTNINGSTIDEN: DEN NORDISKA
RATTSVETENSKAPENS HISTORIA, DEL II, 1815-1870 (1998).
68.
Pihlajamaiki,
supra
note 64.
69. Jagerskidld, supra note 60.
2004]
come understandable. The
pragmatist, policy-oriented
solutions that
legal
realism fostered fell onto fertile
ground
in
Sweden,
where law
had never lost its connection with normal
people's
normal lives and
where
legal professionals
had never
managed
to
monopolize
their
language
and culture in the
way
their
colleagues
in the more south-
ernly parts
of
Europe
had been able to do.
6. CONCLUSION
American and Scandinavian
jurists
do not share a common tradi-
tion. But what
they
do share is a common
conception
of their role as
mediators of the law to
laymen
in
courts,
and of the
practical
con-
cerns of
society
with the law. The American and Scandinavian
ju-
rists,
much more so than continental
ones,
share a common attitude
towards law as a
practical enterprise.
To be
legitimate,
a
legal
solu-
tion has to work in
practice.
In this
sense,
not
only
the life of Ameri-
can,
but also Scandinavian
law,
has been rather
experience
than
logic.
Scandinavian and American
jurists are, by tradition,
pragmaticians.
I have
suggested
that this tradition
goes
back to the middle
ages,
and that it has continued all
through
the
early
modern
period
and on
to the twentieth
century.
The
pragmatic
tradition is reflected in the
way judiciary
has been constructed and in the role of
legal
literature
in both areas. The
pragmatist
tradition still
prevails,
and is reflected
in the
relatively slight
interest in a theoretical
approach among prac-
titioners of mainstream
positivist legal
science in America and
Sweden.
American and Scandinavian
legal professions may
not share the
same historical
tradition,
but in the
early
twentieth
century
the
ju-
rists from both
parts
of the worlds nevertheless
shopped-to
borrow
Daniel
Rodgers's metaphor-in
the same market of
legal
ideas. Be-
cause of their similar
understanding
of law's basic
nature,
American
and Scandinavian
legal
scholars made similar choices when it came
to
channeling progressivist ideology
into law.

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