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I'm aware that there are some major differences between Scandinavian law systems and other European systems, e.g., the fact that Roman Law had very little influence in Scandinavian countries. But why has the idea of a general civil code like the BGB or the Code Civil been rejected? Why resort to case law or legal doctrine instead, considering that, in many EU countries, they aren't even considered sources of law?

  • When you say roman law, do you mean codified law? What makes you think that "civil codes" are rejected - because I don't believe they are. Theoretically, you could say the same for Canada (excluding Quebec). Or are you referring to common vs civil law traditions? – Zizouz212 Sep 26 '17 at 20:40
  • @Zizouz212 I'm pretty sure that the questioner is getting at the common v. civil law tradition distinction, or at least, arguing that the civil law tradition is modified in a very major way in Scandinavian countries relative to those of Continental Europe. FWIW the question asker's only other post was in a Portaguese language forum at SE. – ohwilleke Sep 27 '17 at 11:16
  • I mean the influence it had on the main strains of the Civil Law tradition and how it shaped its codes. The BGB follows a Roman-law inspired structure, as do other codes like the Austrian or the Portuguese ones, not to mention that all of these codes contain institutiones derived from Roman Law. But Roman Law didn't reach Scandinavian countries the same way it reached Continental ones, that's why I wrote that. – gydapedro Sep 27 '17 at 11:35
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Sweden and most of the other Scandinavian countries once had a civil code based upon the Civil Code of 1734.

Generally speaking, this code is in turn derived from the German Civil Code (as opposed to the French Civil Code), which is written in a more carefully defined, lawyer oriented manner than the French Civil Code which sought to be written in common French for use by the ordinary French citizen.

In general, Scandinavian law is originally quite similar to the German law upon which it was modeled, and the systems have continued to influence each other intellectually. For example, Scandinavians followed the lead of the Germans (or visa versa) in adopting "day-fines" as a major means of criminal punishment in the time period following World War II.

Both the French and German civil codes, in turn, were derived from Roman law.

But, at some point prior to the end of World War II, the Scandinavians departed from the German model substantially.

All civil law jurisdictions resort to doctrine from legal treatises as a major source of authority and the Scandinavians are no exception. Leading law professors in civil law countries have an influence on how the law is interpreted comparable to that of leading appellate court justices in common law countries.

But, unlike other civil law countries, Scandinavians rely upon case law more than Continental Europeans do as binding authority in the form of judge made law.

It appears that the typical Continental European pattern that was in place at one point in Sweden's modern history has been supplanted by a system that does indeed give more weight to case law and is more systematic. This European Commission source confirms this account in the private international law context, stating:

Private international law in Sweden is codified only in part, and consists of a combination of statute and case law. The statute law is for the most part aimed at giving effect to international conventions to which Sweden is a party.

This book, however, notes that Sweden is in the process of drafting a more comprehensive and systematic civil code for itself and made significant progress towards that goal with a 2009 report, in furtherance of the goal of better harmonizing the private law of EU and EFTA members.

The very thin Wikipedia article in English on the Law of Sweden, upon which I relied, appears to be inaccurate, or at least, misleading, on the key points. Based upon your comments and the information gathered while updating this answer, I have updated the Law of Sweden article to make it more accurate. It isn't clear from sources available to me, however, precisely when Sweden began to deviate from the German model other than to say that it was sometime well after 1734 CE and was not later than the end of World War II, which as a two century range admittedly isn't very specific.

Skimming the material, a lot of the reforms apparently take place in the late 20th century. The scholar in the linked power point presentation suggests that Sweden's legal system is neither in the Civil Law tradition nor the Common Law tradition, contrary to my understanding until your comments brought more information to my attention. Not having my histories of Sweden or Finland easily at hand, it is hard to tell how or why this happened. But, I appreciate your comments and question which have brought this information to my attention and would strongly suggest that you prepare an answer of your own as you appear to be very knowledgable about the details of Swedish law and may be better equipped than I to get to the bottom of the question.

This journal article discussing the Swedish tort statute adopted in 1972 suggests that following World War II there was a concerted international effort of the Scandinavian countries to engage in legal cooperation producing more or less uniform laws in the region related to private law with tort law high on the agenda for reform and homogenization although turning that into concrete legislation apparently took 27 years and many commissions and negotiations.

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  • I disagree that the premise is mistaken. The wikipage you’ve provided is incomplete. Out of the nine codes that composed the Law of 1734 (1734 års lag in Swedish, which does not translate into Civil Code), only parts of the Commercial Code and the Building Code are still in effect. Marriage is regulated in the Marriage Code of 1987; the Parental Code is from 1949; the Inheritance Code is from 1958; etc. In conclusion, the great majority of the Law of 1734 is not in force, and these subjects are instead regulated on other, separate codes that aren’t compiled into a Civil Code. – gydapedro Sep 27 '17 at 20:18
  • The BGB, the German Civil Code, has a structure that follows the Roman pandectae and is divided into: General Part, Obligations Law, Property Law, Family Law and Inheritance Law. All of these parts are in effect. But in Sweden this systematic aspect doesn’t exist, because Civil Law is fragmentary. Moreover, Sweden does not even have a general law of obligations; neither does it have other essential civil law institutes or characteristics that form German civil law, like unjust enrichment, culpa in contrahendo, or negotiorum gestio. – gydapedro Sep 27 '17 at 20:18
  • You write that “all civil law jurisdictions resort to as a major source of authority”, but this is not the same as saying that they are source of law. In Portugal they can be, at best, considered indirect sources, as they are not binding. In Sweden the Contracts Act is insufficient as regulation and, “most of this supplementation is being made by academics”; and the notions of dolus and culpa are “vaguely traced” in case law, which doesn’t happen in Germany; these notions are built in the Civil Codes and not constructed by case law or doctrine: scandinavianlaw.se/pdf/50-15.pdf – gydapedro Sep 27 '17 at 20:21
  • A quick look at this source google.com/… suggests that there is something to you assertion that the sources I initially referred to appear to have overlooked some key points. It sounds like you know a great deal about this subject. Perhaps it would be appropriate for you to make a shot at answering your own question. – ohwilleke Sep 27 '17 at 20:30

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