sören koch the lack of legal skills of lower court judges (lagrettemen).41 In conjunction with the customary law based obligation to pay for all damages in case of asuccessful appeal, the local courts still were reluctant to give clear rulings in difficult cases.42 The legislator had to act again and already in 1591 a decree was enacted that demanded that all courts of first instance had to be staffed with a clerk who had the tasks of writing down all judgments and instructing the judges (lagrette).43 Only after a few years this clerk, the so calledsoren-skriver, became a key figure in the Norwegian legal system. We have evidence that he was recognized as an assessor in the local courts in 1623 and some time later he appears to be the sole judge. This factual change was acknowledged by the legislator in 1634 when a decree, addressed exclusively to Norway (adskilligt udi Norge), ordered that only the sorenskriver should be held legally accountable44 if an appeal was crowned with success.45 At the same time the lawman disappeared as judge on the local level. In a decree from 1607 he was explicitly prohibited from judging cases brought to the city council (which was the court of first instance in marketplaces).46 41 Sunde, Jørn Øyrehagen 2010b p. 198. Seip, Jens Arup 1934 p. 104 whomeans that this problem was also known when it comes to the decisions of the lawman, in particular in the sixteenth century. Parallel problems can be observed in other jurisdictions as well. Andrew Simpson directed my attention to two statutes in Scotland in 1487-88; the first ordered the people to take their complaints to the judges ordinary in the first instance (mainly the judges ordinary were local officials). This undermined the practice whereby litigants had brought many complaints directly to the King’s Council. The aim was to relieve the judicial burden on the Council. Six months later the government accepted that this was “deferring of Justice to many parties” and so the first instance jurisdiction of the King’s Council was restored. See also Godfrey, Mark 2009 p. 66. 42 This was a result of the former tradition that the losing party could just appeal the case to another court if he would argue that the former court and its judges had mistreated him by breaking the law, cf. Seip, Jens Arup 1934 p. 104. 43 Decree from 31 July 1591 (NRR) III p. 134 ff. and 201. 44 In the light of the pre-existing obligation concerning the lay-judges in the jury (lagrette), it has been argued that this obligation was inspired by the Roman law doctrine of iudex qui litem suam fecit. This, however, is not likely as the influence of Roman law on the old legal institutions in Norway was very remote. 45 Cf. decree from 24. Oct. 1634, NRR IVp. 699 ff., cf. Bloch, Kristian 1981 p. 60; Nissen, Gunnar 1966 p. 36. 46 Decree from 6. Aug. 1607, NRR IVpp. 211-212; cf. Bloch, Kristian 1981 p. 51 f.; Nissen, Gunnar 1966 p. 36. 291
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