reflecting the past and the present current perspectives for the future LEGAL HISTORY
stockholm 2021 GRUNDAT AV GUSTAV OCH CARIN OLIN The Olin Foundation for Legal History INSTITUTET FÖR RÄTTSHISTORISK FORSKNING
The depicted medal of Johan Stiernhöök, engraved by C.M. Mellgren, was made on behalf of the Swedish Academy in 1837 Publisher: Institutet för Rättshistorisk Forskning Grundat av Gustav & Carin Olin box2298, 103 17 Stockholm e-mail: olinfoundation@telia.com Order & Distribution: Jure ab. Artillerigatan 67, 114 45 Stockholm phone+46 8 662 00 80, fax+46 8 662 00 86 e-mail: order@jure.se www.jure.se isbn 978-91-86645-15-1 issn 0534-2724 Symposium Committee: Christian Häthén Kjell ÅModéer Per Nilsén Martin Sunnqvist Elsa Trolle Önnerfors Editor: Kjell ÅModéer Language Rewiew: Charlotte Merton Cover picture: Johan Johansson, Lund Universitet Site 1946 Akademiska föreningens konstsamling, Lund Cover & Graphic Form: Pablo Sandoval Printing & Binding: Tallinna Raamatutrükikoja, Estonia
RÄTTSHI STORI SKA STUDI ER Band 29
johan hirschfeldt kjell å modéer matthew dyson bernhard diestelkamp serge dauchy nils jörn lawrence m. friedman jørn øyrehagen sunde eva löfgren michael stolleis henrik wenander mats kumlien lars björne søren koch reinhard zimmermann pia letto-vanamo martin sunnqvist nina-louisa arold lorenz dag michalsen heikki pihlajamäki lena foljanty
reflecting the past and the present current perspectives for the future LEGAL HISTORY
n november 16, 2017 it was my great honour and pleasure to welcome the participants of the conference on ‘Legal History: Reflecting I the Past and the Present. Two Current Perspectives for the Future’. This conference formed a part of the Faculty of Law – and the Lund University–350th anniversary celebrations. The anniversary provides opportunities to reflect on the past and the present, and on continuity and change. The discipline and perspective of legal history is crucial for the development of law and legal science. It enables a critical and multi-facetted analysis of the foundation, function, and content of law and legal science, as well as of the future challenges, possibilities and limitations of law and legal science in our global society. In this context, we, at our Faculty, are very fortunate and grateful that professor Kjell Å Modéer has written a book, published during this anniversary, on the history of the Faculty of Law, with the title “The Obligative Memory”, “Det förpliktande minnet’. This book offers an excellent scholarly analysis of the Faculty of Law and its history for more than three centuries – but also of the direction of legal education, legal science and the legal profession more in general. It was also a particular pleasure for me to be able to welcome so many of our honorary doctors in legal history to Lund. They have all made outpreface
standing and innovative contributions to legal science, and we are proud to have them included you in our scholarly community. The programme of the conference was really stimulating – and the multitude of topics and perspectives represented is impressive – including international public and private law, procedural law, constitutional law, social law and European law as well as, for example, comparative, law & society and law and politics perspectives. I would like to express my sincere gratitude, firstly, to the organizing committee, and secondly, to the Olin Foundation for Legal History not only for their generous financial support of the conference but also by the publishing of the interesting scholarly articles of the conference in this volume of Studies of Legal History, Rättshistoriska studier. Mia Rönnmar, Dean of the Faculty of Law, Lund University, 2015–2020
his volumegrewout of a symposium held at the Lund University law faculty, 16–17 November 2017. For me as the chairperson of the Olin Foundation for Legal History it is a great pleasure to thank all the contributors to this volume for their work on an important theme in legal history. As Kjell Å. Modéer remarks in his essay on the evolution of legal history, the Olin Foundation was founded in 1947 by the judge Gustav Olin and his wife Carin. It was a time when legal history helped jurists all over post-war Europe to uphold tradition and use it to shape the future. One need only think of the European Convention on Human Rights to see its effect. The purpose of the Olin Foundation was to further Swedish research in legal history. Central to its aims is the funding of symposia and resultant anthologies such as the volume you have in your hands, contributing to the wider interdisciplinary discourse about legal history. The aim of this volume is to reflect on the relation between past and present, and the impact it will have for jurists in future. The tenor of our deliberations is perhaps best understood visually, in the very image of fruitful academic exchange. It takes us back to the Enlightenment, an especially important period for temporal and spatial reflection. The young people in the picture are happily hunting butterflies. They are doing it for fun, but it is also part of their academic research, for they are T legal history•johan hirschfeldt 10 foreword
Carl von Linnæus’ Apostle Peter Forsskål and his friend Frederik Seidelin hunting a Red Admiral butterfly on an excursion in the neighborhoods of Göttingen. Watercolour by Frederik Seidelin, dated September 11, 1755 in one of Forsskål’s autograph-books in the Thott’s collection, The Royal Library, Copenhagen.
The university library in Göttingen. Engraving after Georg Daniel Heumann (1691–1759), Bibliotheca Büloviana Academiæ, Georgiae Augustæ donata Göttingæ, Augsburg: Georg Balthasar Probst, 1760/70s.
foreword both studying natural sciences. The man on the right is a Dane, while on the left is Peter Forsskål, a Finnish-Swedish student at Uppsala University, who went on to be one of Carl Linnaeus’ famous Apostles. They went butterfly collecting near Göttingen in about 1750. Afterwards they continued their academic hunt in the library of the university there. It was in Göttingen that Forsskål studied theology and successfully presented a thesis on philosophy, inspired by David Hume. He later returned to Uppsala where he published his pamphlet Tankar omBorgerliga Friheten(‘Thoughts on civil liberty’) in 1759. Duly censored, it dealt with the freedoms and rights of the citizen. The most important passages concern freedom of expression and information. Nowadays Forsskål’s Tankar have been translated into some twenty languages.1 He even has his own website, with full texts of his work available. The systematization of his thoughts illustrates how the Enlightenment addressed the past, but also how it set out a new cognitive structure for the relationship of state, society, and individual citizen. His Tankar are arranged as twenty-one paragraphs, which I would précis as follows: 1 Peter Forsskål, Tankar om borgerliga friheten: Originalmanuskriptet med bakgrundsteckning/Thoughts on civil liberty: Translation of the original manuscript with background, ed. David Goldberg, Gunilla Jonsson, Helena Jäderblom, Gunnar Persson & Thomas von Vegesack with David Shaw (Stockholm: Atlantis, 2009); see also Ulla Carlsson & David Goldberg, The Legacy of Peter Forsskål, 250 Years of freedom of Expression(Gothenburg: Nordicom, 2017). 13 Liberty. The limitations of liberty and no harm to others. Civil liberty and the virtues of the citizen. Privileges and the abuse of power. A republic is not a guarantee against abuse by the privileged. 1 2 3 4 5 The unrestricted ruler hides injustices, so freedom of expression is needed. 6 Limited government and freedom of the written word, though within certain limits. 7 Freedom of expression. Further thoughts on freedom of expression. 8 9
The best known is the ninth paragraph, which deserves to be quoted. Forsskål’s Tankar final paragraph has the following words on freedom of information as a cornerstone of a good and inclusive society: We are right to honour Forsskål as a philosopher who was among the first to give voice to the important constitutional issues of his time. He foreword 2 Forsskål 2009, 16–17, 22. 3 Ibid. 16 ff. 14 The rule of law. Freedom of religion. 10 11 Property rights, the common good, and employment grounded on objectivity, not privilege. 12 Civil service by merit rather than by privilege. 13 Substantive requirements and assessment criteria for the civil service. Limitations of property rights. Freedom of trade. 14 15 16 Freedom of trade and freedom of movement. 17 Public education. The abolition of the guilds. Intellectual rights and freedoms. Transparency, meaning freedom of information, and freedom of expression. 18 19 20 21 Freedom of the written word develops knowledge most highly, removes all harmful statutes, restrains the injustices of all officials, and is the Government’s surest defence in a free state. …A wise government will rather let the people express their discontent with pens rather than with other guns, which enlightens on the one hand and prevents uprising and disorder on the other.2 Finally, it is also an important right in a free societyto be freely allowed to contribute to society’s well-being. However, if that is to occur, it must be possible for society’s state of affairs to become known to everyone, and it must be possible for everyone to speak his mind freely about it. Where this is lacking, liberty is not worth its name.3
foreword foresaw a social construct that we today base on the three-pillar concept of democracy, the rule of law, and human rights. Forsskål himself came to an untimely end – a member of a Danish botanical expedition in the Middle East, he died in Yemen in 1763, only 31 years old – but his memory is still celebrated with an annual seminar in his name in Uppsala. And with this small but significant historical example to illustrate the theme of the symposium and this volume, I wish you a stimulating read! 15 LEGAL HI STORY Reflecting the past and the present, current perspectives for the future Johan Hirschfeldt
Supreme Courts Legal Cultures legal history Preface • Mia Rönnmar Foreword • Johan Hirschfeldt Law, time, and space: Legal history: The Lund perspective: A tribute to our honorary doctors • Kjell ÅModéer Presence of mind and the future of legal history • Matthew Dyson Die höchsten Gerichte und Rechtliche Zeitgeschichte • Bernhard Diestelkamp Central courts, an inexhaustible source of information for legal history: The example of the French parlements and sovereign councils • Serge Dauchy The Wismar Tribunal: A survey of the research • Nils Jörn ‘That’s the way I am’: Lawrence M. Friedman in interview • Kjell ÅModéer Legal culture as a tool for legal analysis • Jørn Øyrehagen Sunde 16 8 10 20 38 56 86 94 102 122 1 2 3 4 5 6 7 contents part i part ii introduction 19 55 101
Contemporary Legal History Intellectual Legal History Comparative Legal History 8 9 10 11 12 13 14 15 A spatial history of Swedish rural courts • Eva Löfgren Social law, contemporary legal history, and the history of public law • Michael Stolleis The Ghost of the King: Traces of ‘Royal Majesty’ in the Swedish constitution of 1974 • Henrik Wenander A short comment on the history of administrative law and Michael Stolleis • Mats Kumlien Nordic legal science: Diversity and unity • Lars Björne Legal compilation in early modern Denmark and Norway: Creatively recycling the law • Søren Koch Understanding the law in historical and comparative perspectives • Reinhard Zimmermann Law émigré Max Rheinstein (1899–1977): A comparatist in pre-war Germany and post-war America • Kjell ÅModéer contents 17 142 158 167 177 188 198 232 254 part iii part iv part v 157 187 231
European Legal Integration Legal History and Legal Science 276 287 298 320 328 346 354 contents 18 16 17 18 19 20 21 22 The Europeanization of legal cultures • Pia Letto-Vanamo The rule of law as a criterion for Europe • Martin Sunnqvist A kaleidoscope of people: The legal cultures of the European Court of Human Rights and the European Court of Justice • Nina-Louisa Arold Lorenz The temporalities of constitutions • Dag Michalsen Constitutions and codifications, 1667–2017: A legal historian’s reflection • Dag Michalsen Why legal history matters: Dangerous social sciences and the authoritarian state • Heikki Pihlajamäki Concluding remarks: The future of legal history • Lena Foljanty part vi part vii 275 319 contributors 365
legal history 19 introduction
he starting pointof this survey of contemporary legal history at the law faculty at Lund University is 1947, the year of the inauguration of the Olin Foundation for Legal History.1 During the Second World War, Sweden’s legal history was characterized by nationalism and the deep structures of the law.2 Immediately after the war in the autumn of 1945, the professor of legal history at Lund, Ivar Sjögren, sketched out the task of post-war Swedish legal historical research. Now was the time, he said, to write a conclusive description of Swedish legal developments, and not only of the mediaeval and early modern periods: the modern period up to the beginning of the twentieth century had to be included in the narrative.3 T legal history•introduction 1 Kjell Å. Modéer, ‘Den historiska vändningen: Om humaniora och rättsvetenskap’, in Henrik Rahm, David Dunér, Sten Hidal & Bibi Jonsson (eds.), I Pallas Athenas huvud: Hundra år av humaniora (Lund: Makadam, 2020), 194 ff.; Mauritz Bäärnhielm, ‘En stiftelse blir till. Olinska stiftelsen 50 år’, in Kjell Å.Modéer (ed.), Rättshistoria i förändring: Olinska stiftelsen 50 år: Ett internationellt symposium i Stockholm den 19–21 november 1997/Legal history in change: The Olin Foundation for Legal History 50 years: An international symposium in Stockholm, November 19–21, 1997 (Rättshistoriska studier, 22; Stockholm: Institutet för rättshistorisk forskning, 2002), 5 ff. 2 Kjell Å.Modéer, ‘Det svenska rättsarvet: Om beredskapstidens historisering och dess rättsliga uttryck ur ett law& literature-perspektiv’, Vetenskapssocietetens i Lund årsbok(2013), 88 ff. 3 Ivar W. Sjögren, ‘Arbetsuppgifter för nutida svensk rättshistorisk forskning’, Kungl. Humanistiska Vetenskapssamfundet i Lund. Årsberättelse 1945–46(1946), 91 ff. 20 Law, time, and place: A Lund perspective on legal history: A tribute to our honorary doctors 1. Kjell ÅModéer
Sandgatan in Lund 1938. Oil-painting by the local artist Johan Johansson (1879 –1951). In the background the former “Bishop’s house”. In the red brick building to the left the law faculty was accommodated between 1930 and 1952. – Kulturen in Lund KM 95285, © Stig-Åke Jönsson, Kulturen.
legal history•introduction • kjell å modéer 22 4 Bäärnhielm 2002, 5 ff. 5 Henrik Munktell, Det svenska rättsarvet (Stockholm: Bonniers, 1944). 6 Regina Ogorek, ‘Rechtsgeschichte in der Bundesrepublik (1945–1990)’, in Dieter Simon (ed.), Rechtswissenschaft in der Bonner Republik: Studien zur Wissenschaftsgeschichte der Jurisprudenz (Frankfurt am Main: Suhrkamp, 1994), 16 ff. 7 Franz Wieacker, Privatrechtsgeschichte der Neuzeit unter besonderer Berücksichtigung der deutschen Entwicklung (Göttingen: Vandenhoeck & Ruprecht, 1952). 8 Guido Kisch, ‘The Study of Legal History in Europe and America Past and Present’, Tijdschrift voor Rechtsgeschiedenis(1951), 1–24; Kjell Å. Modéer, Det förpliktande minnet: Juridiska fakulteten i Lund 1666–2016(Stockholm: Santérus Förlag, 2017), 320 ff. The founder of the Olin Foundation, Gustav Olin, an alumnus of our faculty and an appellate judge in Svea Court of Appeal in Stockholm, took note of Sjögren’s aims, and wrote in his deed of donation in 1947 that he wanted to guarantee support for national research about Swedish legal history in an unsecure future. The main task would be the huge project of writing Sweden’s legal history. Seventy years after the establishment of the Olin Foundation such a project has not yet been initiated.4 During the Second World War most jurists in neutral Sweden took a nationalist, patriotic view of Swedish law. It became a part of their national identity. In 1944 the professor of legal history at Uppsala, Henrik Munktell, a politician and a Conservative Member of Parliament, published a fervent plea for the recognition on Sweden’s legal heritage and its importance, Det svenska rättsarvet, which for some years was the standard textbook in legal history at Swedish law faculties.5 However, postwar continental Europe took another direction, as circumstances demanded that legal historians make a fresh start. In 1947Heinrich Mitteis, one of the most important German legal historians of the twentieth century, published his magisterial account of the rebirth of legal history, Vom Lebenswert der Rechtsgeschichte, and in the same year the professor of legal history inTübingen, Paul Koschaker, published his post-war classic, Europa und das römische Recht.6 Togetherwith FranzWieacker, Mitteis and Koschaker found a wide readership in Sweden.7 In 1949 the Jewish German legal historian, Guido Kisch, who in the 1930s had emigrated to the US,was invited to pay a return visit to Lund. He came and gave a lecture on the position of legal history in Europe and the US, and referred to his contemporaries, Mitteis and Koschaker.8
Ivar Sjögren (1897–1953), professor of Legal History and Roman Law at Lund University 1939–1953. Son of the professor of Legal History at Uppsala University and later member of the Swedish Supreme Court, Wilhelm Sjögren (1866–1929). – Photo: Lund University, Faculty of Law.
Gerhard Hafström (1904–1985), professor of Legal History and Roman Law at Lund University 1955–1970. – Photo: Lund University, Faculty of Law
law, time, and place: a lund perspective on legal history 25 A whole generation of Swedish jurists benefited from the renewed freedom of travel after the war. Among them were two PhD students from Lund and future professors of legal history, Sten Gagnér and PerEdvin Wallén. Both went to Rome to study in the Vatican Apostolic Archives. They kept up the traditions of the Historical School embodied by the first professor of legal history at Lund, Carl Johan Schlyter, in the nineteenth century, and in their theses concentrated on topics taken from the mediaeval period. Gerhard Hafström, who succeeded Ivar Sjögren as professor of legal history in 1955, also wrote his thesis on an early mediaeval topic.9 Hafström started his career in Stockholm. He was a student of Sven Tunberg, professor of history at Stockholm University, and his methodological position was close to that of Henrik Munktell’s nationalist school. The representatives of Swedish legal history in this first post-war generation continued in the tradition known from the early twentieth century, and that against the background of increasingly dominating legal modernity with legal realists and black-letter jurists— positivists of a kind typical of Sweden’s welfare state.10 The paradigmatic turn came in 1968 against a background of student protest. It was the year I first attended the Deutschen Rechtshistorikertagen, theGerman legal historians’ biannual meeting, that time in Münster. The Swedish legal historian Sten Gagnér, by that time professor in Munich, strongly recommended the younger generation to go. ‘You will be included in a family,’ he told us, and he was absolutely right, for the meetings offered a warm welcome and a substantial as well as intellectual generosity. But equally it was a revolutionary time for young legal historians. Two of the honorary doctors the Lund faculty honoured in 2019, Bernhard Diestelkamp and Lawrence Friedman—each from a very different scholarly environment—started their careers in the 1960s. In Germany, it was a time of revival for the Germanist legal history with help of a new post-war generation of legal scholars with no connection to the 9 Gerhard Hafström, Ledung och marklandsindelning (Uppsala: Almqvist &Wiksells, 1949). 10 Kjell Å. Modéer, Juristernas nära förflutna: Rättskulturer i förändring (Stockholm: Santérus förlag, 2009), 304 ff. 11 http://reichshofratsakten.de/?page_id=229
Göran Inger (1917–2006), professor of Legal History at Lund University 1970–1976. Inger was a theologian who turned to law and legal history and was appointed to the professorship at Lund 1970. He returned to Uppsala where he held the professorship in Legal History and Legal sociology 1976–1983. – Photo: Lund University, Faculty of law.
law, time, and place: a lund perspective on legal history dark days of the Third Reich. Diestelkamp initiated a huge project on a key judicial institution, the Reichskammergericht or Imperial Chamber Court. His colleague Wolfgang Sellert initiated similarly large parallel project on the Reichshofrat, the Imperial Aulic Council.11 This came at a time when the West German courts were casting about for some deep roots, an identity. In 1969 Konrad Zweigert and Hein Kötz introduced the concept of legal families in their important introduction to comparative law.12 This field expanded rapidly in the post-war period, largely thanks to German émigrés in the UKand US who paved the way for the post-war interchange between European and American legal scholars.13 In theUS, Lawrence M. Friedman was a pioneer of the law and society movement.14 Willard Hurst at Wisconsin had introduced the empirical study of American law and its history, and with the German émigré Max Rheinstein at Chicago as mentor and supervisor he had a hand in introducing the translation of Max Weber’s posthumous workWirtschaft und Gesellschaft (‘Economy and Society’) to an American legal audience. The international transition to alternative methods in legal science left its mark on the law faculty at Lund. Max Rheinstein visited Lund a couple of times as a guest lecturer, and the young professor of civil law, Per Stjernquist, the first professor of the sociology of law at Lund in 1972–1978, found in Hurst’s works an inspiration for his own scholarly work. When in the early 1970s I wrote my thesis on jurisdictions in Sweden’s provinces in the German Empire in the early modern period, I was included in the research group led by Diestelkamp and Sellert.15 Diestelkamp also acted as my PhD opponent. 12 Konrad Zweigert & Hein Kötz, Einführung in die Rechtsvergleichung auf dem Gebiete des Privatrechts (Tübingen: Mohr Siebeck, 1969). 13 Kjell Å. Modéer, ‘Abandoning the Nationalist Framework: Comparative Legal History’, inHeikki Pihlajamäki, Markus D. Dubber, andMark Godfrey (eds.),TheOxford Handbook of European Legal History (Oxford:OUP, 2018), 100–114. 14 Interview with Lawrence Friedman in this volume. 15 Kjell Å. Modéer, Gerichtsbarkeiten der schwedischen Krone im deutschen Reichsterritorium: Voraussetzungen und Aufbau 1630–1657 (Rättshistoriskt bibliotek, 24; Stockholm: Nordiska bokhandeln, 1975); id., ‘Laudatio: Bernd (90) und ich (80) in einem gemeinsamen Netzwerk inkludiert’, Schriftenreihe der Gesellschaft für Reichskammergerichtsforschung, 50 (2020), 217 ff. 27
legal history•introduction • kjell å modéer Swedishlegal history researchas a whole saw a shift in focus away from the Middle Ages, as a new generation fixed their sights on the early modernperiod. Swedish legal historians struggled to find an identity of their own, though, despite several great historians being active in the field, with the likes of Eva Österberg, Bengt Ankarloo, and Jan Sundin devoting their research to legal and social historical themes.16 Claes Peterson of Stockholm, with his 1979 thesis on Peter the Great and his administrative reforms, and I with my 1975 thesis on Sweden’s jurisdictions in its provinces within the German Empire, were part of an expanding network, with a number of international conferences in Lund of which the one in 1982 to mark the 350th anniversary of the birth of Samuel Pufendorf was much noted.17 It resulted in a volume of Pufendorf research, which still is frequently quoted in the international literature on the history of international public law.18 Links continued with the members of the Grüne Reihe or Green Series, especially at Frankfurt under Diestelkamp. Diestelkamp was also instrumental in the opening of the Imperial Chamber Court Museum in Wetzlar in 1987, but also for seminars and conferences arranged by the Gesellschaft für Reichskammergerichtsforschung, the Society for Imperial Chamber Court Research, founded in 1985. Bernhard Diestelkamp’s close connections to Lund were recognized by an honorary degree in 1990.19 Diestelkamp has frequently published on judicial legal history from the late mediaeval period to modern times.20 16 Eva Österberg & Sølvi Sogner (eds.), People meet the law: Control and conflict-handling in the courts: The Nordic Countries in the post-Reformation and pre-industrial period (Oslo: Universitetsforlaget 2000); Eva Österberg & Dag Lindström, Crime and Social Control in Medieval and Early Modern Swedish Towns (Studia Historica Upsaliensia, 152; Stockholm: Almqvist &Wiksell, 1988); Bengt Ankarloo, Trolldomsprocesserna i Sverige (Rättshistoriskt bibliotek, 17; Stockholm: Nordiska bokhandeln, 1971); Jan Sundin, För Gud, Staten och Folket: Brott och rättskipning i Sverige1600–1840(Rättshistoriskt bibliotek, 47; Stockholm: Nordiska bokhandeln, 1992). 17 Claes Peterson, Peter the Great’s Administrative and Judicial Reforms: Swedish Antecedents and the Process of Reception(Rättshistoriskt Bibliotek, 29; Stockholm: Nordiska bokhandeln, 1979). 18 Kjell Å. Modéer (ed.), Samuel von Pufendorf 1632–1982: Ett rättshistoriskt symposium i Lund, 15– 16 januari 1982(Rättshistoriska studier, 12; Stockholm: Institutet för Rättshistorisk Forskning, 1986). 19 Modéer 2020, 115 ff. 28
law, time, and place: a lund perspective on legal history The first PhD student to finish a thesis on legal history at Lund under the new university law of 1977 was Christian Häthén, who defended his thesis on penal legal history in 1990.21 His international contacts were withtheMaxPlanck Institute in Frankfurt and, later, Freiburg. Since the 1980s he has been a respected and appreciated lecturer in legal history at Lund. Sweden’s second post-war generation of legal scholars had the unique possibility to spend a year at American law schools with support from the American Society of Learned Societies and the Fulbright Program. Several of the young Lund faculty took the opportunity. Alexander Peczenik spent a year at Cornell, Lotta Westerhäll Gisselson at Yale, and I spent an academic year at the University of Virginia, taking in lectures at the American Bar Foundation in Chicago, the University of Wisconsin at Madison, Stanford University, and the University of California campuses at Berkeley and Los Angeles. Reinhold Fahlbeck, professor of labour law and international relations, also spent time in US, and for some years was affiliated with Stanford Law School.22 Our generation was introduced to a quite different scholarly openness towards the concept of legal scholarship Sweden’s post-war legal community was still monolithic about textual analysis and the legislative sources, and concepts such as human rights, justice, and customary law were still considered peripheral. American legal and interdisciplinary scholarship showed us that there was another side to the coin. 20 Bernhard Diestelkamp, Rechtsfälle aus dem alten Reich: Denkwürdige Prozesse vor dem Reichskammergericht (Munich: Beck, 1995); id., Das Reichskammergericht amEnde des alten Reiches und sein Fortwirken Im 19. Jahrhundert (Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich, 41; Cologne: Böhlau, 2002); id., Vom einstufigen Gericht zur obersten Rechtsmittelinstanz: Die deutsche Königsgerichtsbarkeit und die Verdichtung der Reichsverfassung im Spätmittelalter (Quellen und Forschungen zur höchsten Gerichtsbarkeit im Alten Reich, 64; Cologne: Böhlau, 2013). 21 Christian Häthén,Straffrättsvetenskap och kriminalpolitik: De europeiska straffteorierna och deras betydelse för svensk strafflagstiftning 1906–1931:Tre studier (Lund University Press; Lund: Studentlitteratur, 1990). 22 Reinhold Fahlbeck, Industrial Relations i USA: Ett porträtt av‘The Land of the Free’ (Lund: Juristförlaget, 1988). Fahlbeck’s international experiences also include Japan, id., Två möten i samurajernas stad: Bilder från Japan(Visby: Vitterlekarna, 2004). 29
legal history•introduction • kjell å modéer My own scholarly focus in this period was the history of the legal profession, and Robert W. Gordon at Stanford was an inspiring discussion partner.23 He was very influential in the critical legal studies movement and introduced me to a new cognitive world.24 Also at Stanford, Lawrence Friedman was a fascinating discussion partner. His concept of legal culture had spread to legal historians in the seventies, not only in theUS but also in Europe.25 He inspired for example Boel Flodgren, later Professor of Business Law at Lund, when she spent a year at Stanford.26 In the late 1980s he visited Lund on a couple of occasions, and I spent some time as a visiting scholar at Stanford and Berkeley, included in their vital and inspiring research environments. He received an honorary degree from Lund in 1993. Swedish legal culture was specifically mentioned in the statutes of the Olin Foundation as one of its aims. The Foundation duly financed a project on Swedish judicial culture, as demonstrated in the country’s courthouses, initiated in around 2000. Its findings are available at the Swedish National Heritage Board website.27 Essentially a documentation project, it also resulted in the 2011 thesis by Eva Löfgren at the Department of Conservation,Gothenburg University, on the perception of rural public space, use, and meanings in the past, using Swedish courthouses from 1734–1970 as examples.28 Meetings of Nordic legal historians hadbegun already in1983 in Turku. Our host, Lars Björne, has for decades been an important colleague within the Nordic community of scholars. He spent a year in Germany on a 23 Richard Abel, Lawyers in Society: Comparative Theories (Berkeley & Los Angeles: University of California Press, 1989); John P. Heinz & Edward O. Laumann, Chicago Lawyers: The Social Structure of the Bar (Russell Sage Foundation; Chicago: American Bar Foundation, 1982). 24 Robert W. Gordon, ‘Critical Legal Histories’, Stanford Law Review36 (1984), 57–125. 25 Lawrence M. Friedman, ‘On Legal Development’, Rutgers Law Review24 (1969), 11; id., ‘Legal Culture and Social Development’, Law & Society Review4/1 (1969), 29. 26 Kjell Å. Modéer, Rättshistoria som samhällets spegel: Om Lawrence M. Friedman och hans vetenskapssyn’, in Eva Lindell-Frantz et al. (eds.), Festskrift till Boel Flodgren(Lund: Juristförlaget, 2011), 252 ff. 27 www.raa.se/in-english/digital-services/about-bebr/. 28 Eva Löfgren, Rummet och Rätten: Tingshus som föreställning, byggnad och rum i användning 1734–1970 (Rättshistoriskt bibliotek, 67; Stockholm: Rönnells, 2011). 30
law, time, and place: a lund perspective on legal history Humboldt grant, and had formed a close connection to Sten Gagnér in Munich.His major historical project on Nordic legal scholarship resulted in an impressive four-volume work on its intellectual history.29 With his impressive production in Nordic legal history he has been instrumental in building up the discipline, and when the law faculty at Lund awarded him an honorary degree in 2003 it was to honour a respected colleague who is kindness itself. Starting in 1980, Lund’s seminar in legal history arranged regular meetings and excursions with our colleagues in Copenhagen. We also made research trips to the Netherlands and Germany and even to the US. On one early visit to Germany we came to know Michael Stolleis in Frankfurt am Main, then a young professor at the law faculty, having started his career as Gagnér’s research assistant in Munich. He introduced us to new, important research on the unlaw of the Nazi regime. At the time of our visit in 1980 he had just written his article on Nazi law for the Handwörterbuch zur deutschen Rechtsgeschichte, the Handbook of German Legal History.30 Reconciliation with the recent past became one of the most intense scholarly discourses in the 1980s and 1990s, and had a great impact on the Nordic legal historians.32 Stolleis also pioneered in the field of Juristische Zeitgeschichte, contemporary legal history.33 The Lund contingent found ourselves included in this important discourse about facing up to the past, which has also been an important topic for 29 Lars Björne, Den nordiska rättsvetenskapens historia, i: Patrioter och institutionalister (Rättshistoriskt bibliotek, 52; Lund: Institutet för rättshistorisk forskning, 1995), ii: Brytningstiden(Rättshistoriskt bibliotek, 58; Lund: Institutet för rättshistorisk forskning, 1998), iii: Den konstruktiva riktningen 1871–1910 (Rättshistoriskt bibliotek, 60; Lund: Institutet för rättshistorisk forskning, 2002), iv: Realism och skandinavisk realism 1911–1950 (Rättshistoriskt bibliotek, 62; Stockholm: Institutet för rättshistorisk forskning, 2007). 30 Michael Stolleis, ‘Nationalsozialistisches Recht’, in Adalbert Erler & Ekkehard Kaufmann (eds.), Handwörterbuch zur deutschen Rechtsgeschichte, iii (Berlin: Erich Schmidt, 1984), 873– 92; see also id., The Law under the Swastika: Studies on Legal History in Nazi Germany (Chicago: University of Chicago Press, 1997). 31 Ditlev Tamm, Retsopgøret efter besættelsen(Copenhagen: Jurist og Økonomforbundets Forlag, 1984); Kjell Å. Modéer, ‘Det tredje riket inför rättshistorien: En litteraturöversikt’, Svensk Juristtidning (1996), 108 ff. 32 Michael Stolleis (ed.), Juristische Zeitgeschichte—Ein neues Fach? (Frankfurt amMain: Nomos, 1993); id., Nahes Unrecht, fernes Recht: Zur Juristischen Zeitgeschichte im 20. Jahrhundert (Göttingen: Wallstein, 2014). 31
legal history•introduction • kjell å modéer Per Nilsén. He defended his thesis in legal history on Swedish constitutionalism during the Enlightenment in 2002. Nilsén spent time at the Max Planck Institute for European Legal History (MPIeR) when preparing to publish his thesis as a monograph.33 Indeed, since it was founded in Frankfurt in 1964 the MPIeR has proved a fabulous institution for current research in legal history, and a constant source of inspiration and high-level academic interchange with colleagues of three generations.34 Stolleis’s chief contributions to European legal history is his four-volumes work on the history of public law in Germany, a standard work now translated into English, French, Italian, Spanish, Japanese, and Chinese.35 A grant from the Humanities and Social Sciences Donation of Riksbankens jubileumsfond (the Riksbanken Tercentenary Foundation) enabled him to spend the spring of 1995 in Lund, during which time he wrote most of the third volume. He has been very supportive of Nordic legal historians, notably as director of theMPIeRfor almost two decades (1991–2009). We were proud when he accepted an honorary degree from Lund in 1999. The new Europe ushered in by the fall of the Berlin Wall brought new challenges for the legal sciences and new possibilities for legal history. The creation of the European Union prompted a fresh interest in comparative law and comparative legal history. As director of the Max Planck Institute for Comparative and International Private Law (MPIPRIV) in Hamburg, Reinhard Zimmermann pioneered this important field of late modern legal research.He spent a period at the University of Cape Town and published extensively not only on Roman law, but also on mixed legal systems, and German law émigrés in the UKin the Second World War.36 This new direction in comparative legal history has been of great 33 Per Nilsén, ‘Att stoppa munnen till på bespottare’: Den akademiska undervisningen i svensk statsrätt under frihetstiden(Rättshistoriskt bibliotek, 59; Lund: Juridiska fakulteten, 2001). 34 Heinz Mohnhaupt must be mentioned here. The Olin Foundation arranged a symposium in Lund in his honour and a Festschrift, Kjell Å. Modéer (ed.), Europäische Rechtsgeschichte und europäische Integration: Festskrift till HeinzMohnhaupt (Rättshistoriska skrifter, 4; Stockholm: Institutet för rättshistorisk forskning, 2002). 35 Michael Stolleis, Geschichte des öffentlichen Rechts in Deutschland, 4 vols (Munich: Beck, 1988– 2012). 36 Reinhard Zimmermann, The Law of Obligations: Roman Foundations of the Civilian Tradition 32
law, time, and place: a lund perspective on legal history value for us legal historians in Lund, reinforced by visits to Hamburg. My researchonMax Rheinstein has been kindly supported by theMPIPRIV.37 The Maastricht Treaty and the founding of the European Union placed European legal history firmly on the curricula of the member states’ faculties of law. European law was no longer regarded as a separate field of international law; from 1995 in Sweden’s case it had to be integrated into the curriculum in each field of law. Among the Nordic countries, Finland was the most dedicated to Nordic and European law, and of our Nordic colleagues Pia Letto-Vanamo was among the first of the Nordic legal historians to tackle this crucial field. In 1997 she and her colleague Olli Mäenpää arranged an interdisciplinary seminar in Helsinki on Nordic identity, bringing together Nordic legal historians and members of theHelsinki law faculty, and this was followed by several seminars and publications.38 Letto-Vanamo has been a good friend to the Lund legal historians since the 1980s, strengthening relations between Helsinki and Lund. She is also a specialist in the early modern period in Nordic legal history, and thus supported Elsa Trolle Önnerfors when working on her thesis.39 Letto-Vanamo is the epitome of the legal historian, who with her broad and deep legal knowledge has opened up the field from early modern towards the late modern period, and to the present concerns of national, Nordic and European law.40 (Oxford: OUP, 1996); Reinhard Zimmermann, D. P. Visser & Kenneth G. C. Reid (eds.), Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland and South Africa(Oxford: OUP, 2004); JackBeatson & ReinhardZimmermann, Jurists Uprooted: German-Speaking Emigré Lawyers in Twentieth-Century Britain(Oxford: OUP, 2004). 37 Kjell Å. Modéer, ‘Law émigré Max Rheinstein (1899–1977)’, in this volume, 256 ff. 38 Pia Letto-Vanamo, Nordisk identitet: Nordisk rätt i europeisk gemenskap (Helsinki: Katti, 1998); JaakkoHusa,Kimmo Nuotio &Heikki Pihlajamäki (eds.), Nordic Law: Between Tradition and Dynamism(Antwerp: Intersentia, 2007). 39 Elsa Trolle Önnerfors, Justitia et prudentia: Rättsbildning genom rättstillämpning: Svea hovrätt och testamentsmålen 1640–1690(Rättshistoriskt bibliotek, 70;Stockholm: Institutet för rättshistorisk forskning, 2014). 40 Pia Letto-Vanamo, Ditlev Tamm & Bent Ole Gram Mortensen (eds.), Nordic Law in European Context (Ius Gentium, Comparative Perspectives on Law and Justice, 73; Cham: Springer, 2019). 33
legal history•introduction • kjell å modéer 34 One important change to legal history in the twenty-first century is the field’s openness to a variety of theories and methods.41 Another participant in Gagnér’s seminar, Dag Michalsen, professor of legal history at the University of Oslo law faculty, has been a signally creative, productive, and innovative colleague. He accepted an honorary degree from Lund in the spring of 2017, and it says a great deal about his position in Nordic legal history that in November 2017 we celebrated his sixtieth birthday with a seminar in Oslo, at which sixteen of his colleagues presented their projects, all of them related to his research. He has published extensively on roman law, constitutional legal history, always with new perspectives and a diversity of new theories and methods.42 The Oslo seminar, Rettshistorisk samling, is a creative melting pot and a haven for all jurists as well as historians concerned with current problems and discourses in legal history. He was a great support for Martin Sunnqvist when he wrote his thesis on judicial review in Nordic legal history,43 and for Julia Björverud in her postgraduate research into the freedom of the press from a historical perspective. In 2009 the Lund law faculty hosted an international workshop on teaching methods in comparative legal history.44 Several participants went on to found the European Society for Comparative Legal History (ESCLH), which had its inaugural conference in Valencia in 2010, and has been a driving force in the development of the field of legal history, 41 Robert W.Gordon,Taming the Past: Essays on Law in History and History in Law(Cambridge: CUP, 2017); Dag Michalsen, Rettshistorisk kritikk: Tolv studier (Oslo: Dreyersforlag, 2017). 42 Dag Michalsen, Romerrettsideologi. Pax Forlag 2008. Ola Mestad & Dag Michalsen (eds.), Rett,nasjon, union: Den svensk-norske unionens rettslige historie 1814–1905(Oslo: Universitetsforlaget, 2005); Hilde Sandvik & Dag Michalsen (eds.), Kodifikasjon og konstitusjon: Grunnloven § 94s krav til lovbøker i norsk historie (Nye perspektiver på Grunnloven 1814–2014; Oslo: Pax, 2013); Dag Michalsen (ed.), Unntakstilstand og forfatning: Brud og kontinuitet i konstitusjonell rett (Oslo: Pax, 2013); Ruth Hemstad & Dag Michalsen (eds.), Frie ord i Norden? Offentlighet, ytringsfrihet og medborgerskap 1814–1914 (Oslo: Pax, 2019). 43 Martin Sunnqvist, Konstitutionellt kritiskt dömande: Förändringar av nordiska domares attityder under två sekel (Rättshistoriskt bibliotek, 71; Stockholm: Institutet för rättshistorisk forskning, 2014). 44 Kjell Å. Modéer & Per Nilsén(eds.),How to Teach European Comparative Legal History:Workshop at the Faculty of Law, Lund University, 19–20 August 2009 (Lund: Juristförlaget i Lund, 2011).
law, time, and place: a lund perspective on legal history 35 and also co-editors of the recent research handbook in comparative legal history.45 And since the symposium in November 2017 another Nordic legal historian has been inducted into the Lund legal historians’ hall of fame: in 2019, the professor of comparative legal history at Helsinki University, Heikki Pihlajamäki, received his honorary degree. Pihlajamäki has for decades been instrumental in furthering Nordic legal history. His contributions also range far wider, including an important international handbook in European Legal History, and he has led the way in the current emphasis on comparative legal history.46 Two of Lund’s honorary doctors were unable to join us in person for the 2017 symposium. Both now in their nineties, they nevertheless participated from a distance. Bernhard Diestelkamp sent a paper from Göttingen to be delivered to the symposium, and Lawrence Friedman in Stanford, prevented from travelling by his teaching obligations, gave a video interview, edited for this volume. This brief survey of legal history at the faculty of law at Lund University underscores the importance of its contacts with its honorary doctors and their contributions to legal scholarship as a whole and to the Lund law faculty in particular. We are proud to count them as colleagues and prouder still to count them as friends and mentors, who have not only inspired our research but have been generosity itself with their knowledge and networks. With this volume we celebrate all our honorary doctors, both with their own contributions and with other legal historians’ reflections on their fields of research. Over seventy years have passed since 1947, the starting point of this survey. Since then the temporality of the legal context has changed dramatically. The essentially nationalist project which Ivar Sjögren and Gustav Olin sketched out for the future of Swedish legal history has yet to be realized, and is unlikely to be so in the near future. The contextua45 Olivier Moreteau, Aniceto Masferrer & Kjell Å. Modéer (eds.), Comparative Legal History (Research Handbooks in Comparative Law; Cheltenham: Edward Elgar, 2019). 46 Jaakko Husa, Kimmo Nuotio & Heikki Pihlajamäki (eds.), Nordic Law: Between Tradition and Dynamism(Antwerp: Intersentia, 2007); Heikki Pihlajamäki, Markus D. Dubber & Mark Godfrey (eds.), The Oxford Handbook of European Legal History (Oxford: OUP, 2018).
legal history•introduction • kjell å modéer 36 lization of Swedish legal historical research has resulted in international projects, like the MPIeRin Frankfurt, which in recent years has opened up for research on European legal history outside Europe. The sheer multiplicity of theories and methods has fuelled important changes. This volume sets out to paint this diverse picture of the current state of the art, and to see the importance of legal history, our past, for the present and the future. LEGAL HI STORY Reflecting the past and the present, current perspectives for the future
legal history 37 introduction Keynote
The light was low, but sufficient for reading.That was helpful, since there were many, many books to read. It seemed a constant in life, the man thought to himself, that there was always another book to buy and never enough shelf space or memory on his computer. But read them he must, if he was to complete the footnotes for the publishable form of his speech, given at the Sällskapet Lundajurister event to mark the 400th anniversary of the founding of Lund University in 1666. Maddalan Maaria af Igelkott’s lecture, a foray into his recent masterpiece, Portuguese Irregular Laws, was a chance to set out his theories of legal development to a new generation of law alumni from Lund. The most difficult thing to get across was quite why some lawyers in the past had found particular issues worth such extensive treatment. The argument that the ius commune still underpinned Portuguese law in the second half of the twenty-first century needed serious support. Similarly, it was hard to explain why some otherwise incredibly capable scholars had focused so much on succession in the early part of the century. Perhaps his biggest challenge was to work out what the lawyers of the past had been thinking fifty years ago. Our fictional professor poses an interesting problem.1 What will the passage of time show about our work as legal historians today? There is, perhaps, no better place to think about it than when reflecting on the legal history•introduction 1 I am very grateful to Kjell Å. Modéer for the invitation to ask provocative questions about the future of legal history. This essay builds on an earlier paper for the relaunch of a lead38 Presence of mind and the future of legal history 2. Matthew Dyson
Professor af Igelkott - Drawing by Oliver Dyson.
legal history•introduction • matthew dyson work of distinguished colleagues. We might consider two perspectives. What do we, the legal historians of today, think the legal historians of the future will be doing? Put another way, if the future were the present, what would we be doing? What do we think the legal historians of the future will think of what we are doing now? Put another way, if the present were the past, what would we be thinking about it? What should we be doing the legal history of, in what ways, and about what countries, so it has meaning not just now but into the future? Who will be the legal historians of the future, and where will we find them working? (And how can we protect the place of legal history in the education of lawyers and law students?) How will legal history be done? We might start in the here and now. Legal historians today take on research projects for a mixture of reasons. Once we start in an area, we tend to continue in that field for some time, utilizing the more closely related interests, knowledge, and skills we possess. Thus, for many of us, our first inspirations as students have continued with us, broadly or even narrowly. But we still make selections, from wider or narrower fields of choice. We do so for many reasons, such as intellectual interest, source material availability, novelty, importance and opportunities to strengthen existing contacts or develop new ones. Sometimes we decide the direction more than in others, such as when we are asked to contribute to another’s project. Sometimes we say, more often about others’ work, particularly when reviewing it for funding or a publisher, that a specific piece of research needs to be published, that it needs to be put out into the academic and wider community. But do we think enough about what the discipline more generally needs? Do we plan our work according to what needs to be done for future legal historical work? In fact, perhaps ing legal history journal, ‘If the present were the past’, American Journal of Legal History (2016), 41–52. Particular thanks to Oliver Dyson for the image of Prof. af Igelkott. 40 What do we think legal historians will be doing in the future?
presence of mind and the future of legal history more than many other areas of legal study, legal historians do, but typically only in one sense. Many legal historians dedicate vast amounts of time to indexing, cataloguing, editing, and generally preserving earlier sources for current and future research. Classic examples include significant work by David Seipp on the Year Books, Robert Palmer’s AngloAmerican Legal Tradition resources, based at the University of Houston and now with over 6 million images of English legal records from 1217– 1800, and many excellent works by Sir John Baker and Paul Brand. A poignant recent example is the Lokin et al. edition of Theophilus’ Paraphrasis, published in 2010.2 The work of tracking down all the possible fragments of this important Greek lecture course on the Institutes of Justinian took almost the whole of Professor Lokin’s working life, as he foresaw in his inaugural lecture and acknowledged on his retirement 32 years on. The English translation relied on had never before been published, but had taken Alexander Falconer Murison almost the same time and effort while an academic at University College London, almost a century earlier. The work comes without notes or commentary, just texts and a translation. Beyond such cataloguing, preserving, and making accessible, do legal historians spend enough time considering the whole tapestry of what is needed? Do we plan what work we would like done? And what are the units of our perception of legal historical work to be done? Do we see research in terms of books, or articles, or large-scale projects? Are we thinking big enough? Are we envisaging larger challenges or collections of books, conceived twenty years before completion and involving multiple authors?We can reduce it to a personal level too.Do we think about what we will each be doing in 10, 20 or 30 years? Can we foresee what we can do? We can foresee learning a new language, or gathering new material, or perhaps learning a new methodology like statistical analysis, but can we see or imagine the new layers of understanding we will have? Even if we cannot foresee them, will we notice them when we stumble over 2 Johannes H. A. Lokin, Roos Meijering, Bernard H. Stolte & Nicolas van der Wal (eds.), Theophili Antecessoris Paraphrasis Institutionum, tr. Alexander Murison (Groningen: Chimaira, 2010). 41
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