Laura Ervo
Head of Unit, Law, Doctor, Professor of Law
Örebro University
Sweden
laura.ervo@oru.se
The Code of Judicial Procedure (4/1734) is still valid in Finland today. The Code was originally Swedish because in 1734 Finland formed the eastern part of Sweden. In 1809, Finland became an autonomous part of Russia but even then, Swedish laws remained in force. The Code was abolished in Sweden in 1948 when the current Swedish Code of Judicial Procedure (1942:740) was introduced. At that time, Finland was already an independent state but after the Second World War the development of legislative reforms in the field of procedural law was not that rapid. The Swedish model remained even in independent Finland from 1917 onwards. Of course, the contents of the 1734 Code have been amended many times but these reforms have always only been partial and thus the Code has never been reformed in its entirety.
Nordic co-operation
Due to this, Finnish and Swedish (East-Nordic) procedural law (= the rules of courts and court proceedings) is still almost identical today. Of course, there are differences in the detail, but the general system and the principles have the same basis. In addition, legislative co-operation is based on the Helsinki Treaty from 1962. It is a framework for Nordic co-operation that is established in the Nordic Council and the Nordic Council of Ministers. Therefore, also current reforms are normally developed in co-operation. The Helsinki Treaty promotes the close ties that exist between the Nordic peoples as regards culture as well as law and society at large. It aims to implement uniform laws in the Nordic countries in as many ways as possible.
Different culture – varying interpretations
Even if the rules are similar, the interpretation of them can, however, vary. The variations in interpretation emanate from the different culture and mentality that exists as a result of Sweden’s modern history.
In Sweden, the ideology of folkhemmet (a Social Democratic welfare state for the people) illustrates recent Swedish social history well. It still profoundly affects the way Swedes see themselves today. Finland has not had the same experience, even though both countries are welfare states. The idea of folkhemmet strongly affects Swedish culture and the Swedish way of living, especially regarding social connections. It highlights the importance of group participation in decision-making. This mindset affects the legal culture as well, including the ways in which legal tools are used and laws are interpreted.
Sweden as a role model
The attitude towards the Swedish legal system has been extremely positive in Finland and Sweden is usually seen as a good role model, especially in the legislative culture, which can safely be followed. Still, the Swedish model has not been directly copied in Finland; instead, the Finnish legislator is often cautious and waits for a more thorough evaluation based on the Swedish experience before the Swedish model is followed with legislative reforms. By doing so, the Finnish legislator often uses Sweden as a test lab. This method is easy due to the common background and similarities in jurisdiction. Swedish models or experiences are not even perceived as legal transplants in Finland but rather are seen more as ‘domestic products’.
Jurist identity
Another reason why Finland easily adopts Swedish reforms and learns from the Swedish experience, is the strong common East-Scandinavian jurist identity, which is built mostly through regular Nordic contacts and co-operation in practice. In their daily lives, Nordic lawyers and researchers frequently keep in touch, particularly with their Swedish colleagues. Especially in Finland, Swedish case law and scientific literature are carefully followed, referenced, and used in Finnish research but also, for instance, in courts by judges and lawyers. In Sweden, this tradition is less common due to the language barrier.
Adjudication
Day-to-day adjudication differs more than the working collaboration in the legislative field. The reason for this is that the toolboxes of Swedish and Finnish judges are not identical. Whenever a new interpretation is needed due to new practical circumstances and needs, if the legislator has not yet reacted with amendments, the Finnish courts normally interpret the valid sections of a law in an instrumental way to reach the best working solution in a new situation. This type of common sense belongs in the toolbox of Finnish judges and is not found to be illegal or risky.
However, this is not the case in Sweden. Especially before joining the EU in 1995, Swedish courts were very careful and extremely bound by the travaux préparatoires and their wording. Thanks to Europeanisation, this has changed somewhat since the early 2000s. Still, the difference between the neighbouring countries is significant in this sense. The more creative Finnish way of interpreting and applying valid sections of the law is strange to a Swedish judge due to the nature of Swedish culture where all needs must be considered before a decision is made. Therefore, the courts usually prefer to wait for the legislature´s (parliament´s) reaction if new needs in society demand new interpretations. The solution, therefore, is not for the courts to interpret the current law in a new manner but instead for the parliament to introduce a new law.
The other reason can be found in Finnish history. During the autonomous period, legislative reforms were not easy to realise in Finland. Therefore, Finnish legislation was static for a period of time and not subject to development. The Russian period and its challenges led to rapid developments in independent Finland and to some flexibility in applying and interpreting laws to correspond with the demands of the era in question.
Summary
Legislative co-operation in the field of procedural law is a good example of Finnish-Swedish co-operation which is partly based on the common historical background of the two countries but also on the practical benefits of Nordic co-operation. Due to their common history and geographical position, it is easier for Sweden and Finland to co-operate compared to the other Nordic countries. East-Nordic co-operation is a natural way of maximising synergies between the two neighbouring countries.