Against Metaphysics in Law

Against Metaphysics in Law: The Historical Background of American and Scandinavian
Legal Realism Compared

Author(s): Heikki Pihlajamäki
Source: The American Journal of Comparative Law, Vol. 52, No. 2 (Spring, 2004), pp. 469-
487
Published by: Oxford University Press
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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

Jerome Frank's strong psychoanalytical emphasis or Alf Ross's
tence on law as social policy, and the difference between the Am
can and Scandinavian schools becomes obscure. From the
comparative standpoint of trying to comprehend how we
large reacted to turn-of-the-century economic, political,
scientific pressures, it seems therefore far more importan
priate to depart from the essential feature that the tw
shared, that is, their devastating critique of legal form
lentless mockery of langdellian formalism united Americ
exactly as Scandinavian realists shared a contempt for Beg
prudenz, the civil law variant of formalism.6 And indeed
ing at the scholarly explanations for the two realist mov
cannot help noticing that the reasons behind both schools
conceived rather similarly.
What then were the reasons for the success of legal re
America and Scandinavia? Several explanations have been o
the emergence of American realism; Scandinavian legal
produced much less historiography. I will first briefly su
most common explanations of American legal realism. Th
ally thought to cover not only realism proper, but also the
ism" of Oliver Wendell Holmes and Roscoe Pound. These
explanations may be gathered under the common concept
engineering.
The argument from social engineering actually cons
closely related themes. First, there is the influence of int
tory, or of philosophy, social sciences, and European anti
ist legal thinking. The philosophical pragmatism of Ch
and John Dewey is always given as the philosophical fram
derlying legal realism. Both pragmatists and realists de
physical constructions and demanded that philosophy a
made to serve social needs.7 It is emphasized that many
ists, at least in their more programmatic writings alth
ways in practice, insisted that legal scholarship not isolat
the social sciences. Recent studies have shown that many
alist scholars in fact were influenced by the German ant
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
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.
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.
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.
James Herget, then came to have a profound influence on the

thers of legal realism, such as ROscOE POUND, in the United S
The second snapshot of the German reaction toward ninete
century liberal and bourgeois values that emerged predominan
the drafting phase of Bitrgerliches Gesetzbuch22 is of corpor
Corporatism, at least in its pre-modern form, was anti-com
and promoted "communal," genossenschaftlich values.23 Ind
in a corporate society assemble themselves in guild-like cor
bodies on which the economic and political organization are
industrial enterprises, in turn, assemble in cartels. In German
ions and cartels developed after 1848.24
The idea of the state directly intervening in the laissez fair
omy, the welfare state, was also central to corporatist political
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
simply of atomistic individuals on the one hand and a mo
state on the other, but as involving an irreducible plurality o
tions, with overlapping memberships, and ranging, in grade
21. See Herget, supra note 8, at 224, 228.

22. See FRANZ WIEACKER, PRIVATRECHTSGESCHICHTE DER NEUZEIT 47
MICHAEL JOHN, THE ORIGINS OF THE CIVIL CODE 252 (1989).
23. James Q. Whitman, Early German Corporatism in America: Limits
cial' in the Land of Economics, in THE RECEPTION OF CONTINENTAL IDEAS
8, at 230. Whitman touches upon the same theme in his article The Moral
Roman Law and the Making of Commerce: Some Dutch Evidence, 105 YAL
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.
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).
lar in the way Scandinavian and American lawyers have tradi

ally thought about law. One could talk about common cognit
elements in the American and Scandinavian legal thinking. In or
to get a grasp of this problem, I will now introduce into this a
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 Gru
europtiischer Rechtseinheit, JURISTEN-ZEITUNG 1992: 8-20.
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.
If the comparatist manages to comprehend these structure

she may be able to understand a legal culture alien to his or h
be it different for geographical or historical reasons. The com
may, indeed, be able to comprehend, as Ewald tries to, wha
like to try rats in the middle ages.37
Ewald and Legrand thus share an interest to the cogniti
ment in legal thinking. Although it is indispensable to locat
thinking in its social context, it is not enough simply to use "
social science or more economics in legal studies. If legal diffe
be they spatial or temporal, are to be explained only as a func
social power relations of economic effectiveness, something es
will be left out. It may be possible to provide a credible account
medieval animal trials increased social cohesion. But as Ewald
it, this is not much more than self-evident: this is what trials
do most of the time. The question is why animals trials tha
"chosen" to be the way to provide for more social cohesion. W
the striving towards social cohesion not find other channels. W
the medieval jurists see it as so natural to try rats? And, back
theme, why did the legal academia in some parts of the world
good, at the beginning of the 1900s in turning against metaphy
law, trying to convert it into a tool of social engineering? It is d
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.
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).
fluence in French local courts at the expense of laymen from th

teenth century onwards.42 The appellate courts, Parlements
their complex Roman-canonical procedure and emphasis on R
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 represen
major point of divergence in the fate of the western legal system
From this time on, the continental legal systems continued to be p
fessionally staffed. The English did not, however, abandon its its
dition of strong lay participation, although it is true that the leg
profession gained increasing importance in the English system as
centuries passed. Legal professional appeared at the central courts
Westminster by the thirteenth century,45 and it has been shown t
the professional lawyer assumed an active role in the English j
trial in the course of the 1700s.46 However, the jurists of the eig
eenth century were not professionals by continental standards
cause they received their training in the Inns of Court and no
universities. This practice continued until late in the nineteenth c
tury, so that between 1850-1950 most English lawyers still receiv
little or no formal university education in law.47
This late medieval and early modern divergence had import
consequences for the argument of this article. On the continent,
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 REF
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
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).
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).
direction from English law. The influence of civil law was al

considerable in post-revolutionary American jurisprudence, and
formalism and realism were influenced by European jurisprude
among other factors.52 American law was stripped of many
original English complexities. Procedures became simpler, and m
states passed legislation allowing citizens even without legal
tion to practise law.53 All in all, it may be said that the role of
scholarship has been greater in America than in England. The r
legal scholarship became especially important after the emergen
the full-time professoriate in the second half of the nineteenth
tury, starting with James Barr Ames at Harvard Law School.54
Why did American law become more "scientific"? This is an
portant question, for without this scientification American l
would be difficult to imagine either the so-called formalist or
movements taking root. LAWRENCE FRIEDMAN explains the succ
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).
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
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.
what distinguishes it from the continental model is the dominan

of lay people in the judicial structure.
Professionalization of the European judiciary went hand in h
as said above, with the reception of Roman law. The depth and
of the Swedish reception of Roman law is, in fact, one of the the
legal history still waiting for a modern treatment. Whatever r
tion there was in Sweden, so it seems, mainly occurred in the s
teenth century, if we exclude the influence of learned law and l
lawyers in the canon law courts. The Swedish reception was, th
fore, associated with the founding of appeals courts and univer
in the seventeenth century.60
Unlike in France and Germany, even thereafter the lower co
always remained in the hands of laymen. The major mode of lay
ticipation since the middle ages had been the namnd, a panel of
laymen which had a collective vote against the judge in all m
both factual and legal. However, until the nineteenth century
only the panel members, but also local court judges were often
trained in law or had little legal training.61 Prosecutors, at l
Finland, were rarely jurists before the late 1800s.62 Legally tra
attorneys appeared in towns in the seventeenth century;63 in co
courts and criminal cases they remained a rare sight until this
tury.64 City courts were organized differently, but even there j
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).
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.
come understandable. The pragmatist, policy-oriented solutions

legal realism fostered fell onto fertile ground in Sweden, wher
had never lost its connection with normal people's normal liv
where legal professionals had never managed to monopolize t
language and culture in the way their colleagues in the more so
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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Against Metaphysics in Law: The Historical Background of American and Scandinavian

Legal Realism Compared

Against Metaphysics in Law: The Historical

A classic theme of comparative law has been classification of le-

HEIKKI PIHLAJAMAKI is Lecturer in legal history at the University of Helsinki.

legal realism, both American and Scandinavian. I will then proceed

2. REASONS FOR REALISM: THE TRADITIONAL EXPLANATIONS

Why compare American and Scandinavian realism? Are we even

derstandable in a textbook. But we need only pause to think

6. See Heikki Pihlajamiki, Den rdttsliga formalismen och kritiken av den: En

This brings us to the second standpoint, elaborated around the

3. SOCIAL ENGINEERING: THE PROGRESSIVE SOLUTIONS

By social engineering I mean "progressive" public measures

14. See DANIEL T. RODGERS, ATLANTIC CROSSINGS: SOCIAL POLITICS IN A PROGRES-

Wertungsjurisprudenz) that had built the intellectual basis for such a

17. RUDOLPH VON JHERING, DER ZWECK IM RECHT 443-447 (1884).

James Herget, then came to have a profound influence on the

21. See Herget, supra note 8, at 224, 228.

from the family to charitable and educational and trade associations,

lar in the way Scandinavian and American lawyers have tradi

4. LEGRAND AND EWALD: THE COGNITIVE APPROACH TO

PIERRE LEGRAND fiercely opposes attempts to create a common

culture, or even law in a stricter sense, according to Legrand, cannot

33. ALAN WATSON, LEGAL TRANSPLANTS: AN APPROACH TO COMPARATIVE LAW

If the comparatist manages to comprehend these structure

37. See id. at 1986.

4. COMMON LAW PRAGMATISM AND AMERICAN LEGAL THINKING

ANTHONY KRONMAN's Lost Lawyer describes the traditional com-

fluence in French local courts at the expense of laymen from th

direction from English law. The influence of civil law was al

52. Herget, supra note 8.

ble.57 What worked in English law to run a modern society no longer

6. SCANDINAVIAN PRAGMATISM: LAW FOR LAYMEN

Scandinavian law is also, by tradition, lay-dominated. I will give

57. Mattei, "Why the Winds Change."

what distinguishes it from the continental model is the dominan

Sweden was also a country of weak feudalism and a centralized

65. SEPPO TIIHONEN, HERRUUS: OSA 2, RUOTSI JA VENAJA 50-56 (1994).

come understandable. The pragmatist, policy-oriented solutions

American and Scandinavian jurists do not share a common tradi-

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