240 ity.^ Moreover, there was a considerable difference as to the time and depth of the penetration of ius commune!^ Although a “ius commune” is not, obviously, referred to specifically in the nineteenth-century Finnish legal life, the basic attitude toward legal decision-making remained similar in Finland to what it had been in continental Europe for centuries. This can be said in spite of important Swedish peculiarities, the all-encompassing nature of the Lawof 1734, the lack of local statutes and the virtual lack of seigniorial jurisdictions. Despite these characteristics that seem to make the position of statutory law comparatively strong,'® various studies have shown that written law was, in the seventeenth and eighteenth centuries, but one source among others. Neglecting statutory law, decisions were often based on precedents, Roman law, natural law, or simply judicial arbitration." Premodern law in Sweden and Finland should, therefore, and as far as the sources of legal decision-making are concerned, be viewed more as a parallel of ius commune than as a precursor of statutory positivism. These observations may help one to grasp some of the peculiarities of the Finnish nineteenth-century legal practice as well. As my study on legal practice has shown for the law of proof, the judges at the High Courts of Vaasa, Turku, and Vyborg, and at theJDS, did not conceive as their first and foremost task the assurance of the strict observance of the letter of the law. On the contrary, there were other factors involved, and they could, although exceptionally, step into the picture should circumstances so require. If that involved departing fromthe statute, then the statute was not necessarily followed. Against this background, x}oe possibility of early deviations fromthe legal rules of proof in the high court practice - and indeed the whole abolition of the statutory theory of proof - becomes conceivable. As far as doctrinal theories of legal sources in the early 1800s are concerned, the relevant authors to be considered are David Nehrman, Olof Rabenius, and Matthias Calonius.'^ According to Björne, only two legal sources existed for Nehrman, Calonius, and Rabenius: natural law and positive law. Of these two, natural law was primary to Nehrman, but subsidiary to Calonius and Rabenius. According to Nehrman, Swedish lawwas to be applied only when natural law prescribed something "'wist och oemothsäijeligit.”^'^ Moreover, customary * Giaro 1995 pp. 6-8. ^ Giaro 1994 (a) pp. 10-11. Jägerskiöld 1963 pp. 210—214. Jägerskiöld speaks of a “legal positivism” {lagpositivism). '' See Calonius 1830; Munktell 1939, 1940; and Thunander 1993. Björne 1991 p. 4. According to Björne, the authority of the first two scholars was unquestioned. Especially Nehrman’s “Inledning Til Then Swenska lurisprudentiam Civilem” (1729) but also Rabenius’s “Primae Jurisprudentiae Communis Svecanae Lineae” were influential. Also Calonius enjoyed wide authority. His principal work, “Praelectiones inJurisprudentiam Civilem,” circulated in lecture notes, and was not printed until in 1908. Björne 1991 pp. 28-29.
RkJQdWJsaXNoZXIy MjYyNDk=