Duke Law Scholarship Repository

Title

Scandinavian Private Law: Nationalism, Realism, and Instrumentalist in Private Law

Author

Rasmus Goksor

Date of Award

2014

Document Type

Dissertation - Closed Access

Degree Name

Doctor of Juridical Science (S.J.D.)

Institution

Duke University School of Law

Abstract

This study focuses on Scandinavian private law to provide a deepened understanding of the European integration of the Scandinavian states. Since the creation of the EU and its predecessors, these states have shown resistance to deepened European integration. Remarkably, in private law, resistance has been assigned primarily to Scandinavian features separate from the Scandinavian states. I examine private law and, in particular, what role the Scandinavian identity in private law has had for the reception of EU private law harmonization in the region.

Private law exists in society and the study borrows from political science and identity theory to explain the formation and the success of the Scandinavian identity in private law. At the same time, private law has historically carried far-reaching autonomy relative to the state in the region. Private law theory has sought to maintain such autonomy and provides a way to approach broader questions on the content of Scandinavian private law and the changing role of private law in a post-national world.

I examine private law scholarship, statutes, and case law over the past two centuries and place them into their socio-political context. The material provides a narrative of the changing nature by which Scandinavian legal actors have understood private law and its relation to the state and the meaning of the Scandinavian identity.

In the context of EU private law harmonization, very few legal writers have challenged the historic state-centralism of private law that existed in the nation states. Instead, they have debated whether the EU should act more or less like a state. In a post-national Europe, however, the role of the state is changing and so is its relationship to private law. Scandinavian private law emerges particular because it has existed beyond the state and raises novel questions for how to deal with conflicting rules and systems of law within the EU. The dissertation highlights the important role of the legal community and its interplay with society for creating private law.

Citation

Goksor, Rasmus, Scandinavian Private Law: Nationalism, Realism, and Instrumentalist in Private Law (2014) (unpublished S.J.D. dissertation, Duke University School of Law)