2.1 Swedish Origins
The earliest substantial Swedish law texts are the provincial laws, which were the means of law-holding in Sweden during the Middle Ages. Around 1200, the laws began to be transferred to written form. This was probably due to clerical influences. The oldest of the Swedish provincial laws is the Västgötalagen, which was used in the west part of Sweden. Around 1350, the Swedish provincial laws were replaced by the Magnus Eriksson country law.Footnote 9
Mostly three factors, namely societal development, Christianity and the reception of the foreign law have affected the development of the Swedish legal culture.Footnote 10 Also, the German-Roman tradition had an important influence on the Swedish legal system. A comprehensive Swedish code was enacted in 1734. This code, known as The Code of 1734, was divided into the following sections: The Books on Marriage, Inheritance, Land, Building, Commerce, Crimes, Judicial Procedure and the Book on Execution of Judgements. This structure can still be found in the Swedish law book. In addition, there are some later codes, namely, the Parental Code (1949), the Environmental Code (1998) and the Social Insurance Code (2010).Footnote 11
During the seventeenth century, Sweden emerged as a great power by taking direct control of the Baltic region. Sweden's role in the Thirty Years’ War determined the political and religious balance of power in Europe. In 1721, Russia and its allies won the war against Sweden, marking an end to the Swedish superpower in Europe. Sweden joined in the Enlightenment and, between 1570 and 1800, experienced two periods of urban expansion.Footnote 12
Sweden's last war was the Swedish–Norwegian War in 1814. Sweden won the war, and, as a result, Norway formed a union with Sweden that lasted until 1905. Since 1814, Sweden has been at peace, adopting a non-allied foreign policy in peacetime and neutrality in wartime. During World Wars I and II, Sweden remained neutral. Additionally, Sweden attempted to stay out of alliances and remain officially neutral during the entirety of the Cold War. The social democratic party held the government for 44 years (1932–1976).Footnote 13
2.2 Sweden-Finland and Its Effects
As explained above, the East-Scandinavian countries, namely Sweden and Finland, have a common history. From the 1200s onwards, Finland constituted the eastern part of Sweden, a status that continued until 1809. Before the Swedish period, there was no state or central power in Finland. Centralised power and nationwide legislation started to develop simultaneously during the Swedish period.Footnote 14 Therefore, both countries share the same origins in terms of the legal system and principles.
Due to this common history, and especially the common legislative tradition which survived in modern-day Finland for quite a long time, the prerequisites for common court culture are quite unique. The fact that legal systems, with their main principles, are still rooted in the same formal basis provides a guarantee that key legal concepts and principles are in fact understood in a similar way in both countries. Thanks to the shared religion, the value base is shared as well. This common morality affects the legal interpretations despite the fact that both countries are rather secularised.Footnote 15 Values of honesty and a strong work ethic are among the fruits of that Lutheran morality.Footnote 16
2.3 Finland as Autonomous Grand Duchy of the Russian Empire and Russification
In 1809, Finland became an autonomous part of Russia; even then, however, Swedish laws remained in force and continued to be valid throughout the whole Russian period. Indeed, the Russian legal system did not have much of an effect in Finland, where the Swedish model remained prevalent up to and including the establishment of Finland as an independent country in 1917.Footnote 17
More generally speaking, Finland is said to be the border between the West and East due to the fact that, both geographically and historically, Finland is located between Sweden and Russia. The religions of the regions differ (Orthodox in Russia and Lutheran in Sweden and Finland), and thus the values and ways of thinking differ as well. These differences can be seen in the local culture, which varies between the western and eastern parts of Finland. Eastern Finland, which is closer to the Russian border, shows more similarities with the Russian lifestyle. For instance, there is an Orthodox religious minority in the eastern part of Finland.
It is difficult to ascertain without comprehensive empirical studies whether this border situation affects the court culture. Therefore, it is also impossible to say whether and how these cultural differences between the eastern and western parts of Finland as such could affect the court culture, which is legally bound and based on common statutes. At first glance, such differences might be assumed to be very small, due to the fact that court culture is a professional culture and therefore it is consisting partly of legally bound parts—in the other words, it is not only about culture but also about professional duties My experience—after working quite a long time in both named countries—and answer is that the Finnish court culture is very western due to the Swedish origins and the country’s current situation as one of the Nordic countries. It can also be said that there are no great difference in the court culture between the western and eastern part of Finland, because the question relates to a professional and legally bound culture at courts. Still, the Finland’s position as a borderline and its potential effects on the court culture is interesting and should be researched further.Footnote 18 However, let´s return to the historical development again.
From 1890 onward, a policy of ‘Russification’ was introduced, and this era is therefore sometimes called the period of oppression. The policy’s aim was arguably to make Finland more Russian. However, whenever certain Russian exceptions were made in the field of legislation, the Finnish legal services protested widely, and the new system was never fully followed. Notably, these exceptions made in the field of legislation still only covered some aspects of the legal system, while other aspects were still officially and formally legislated by the Finnish (formerly Swedish) laws only.Footnote 19
The Code for Juridical Procedure, for instance, has been valid without any breaks from 1734 until today,Footnote 20 despite the historical vicissitudes wherein Finland was a part of Sweden, an autonomous part of Russia and an independent state, respectively.Footnote 21 Seldom is one code so sustainable that it stays valid through three different empires. Despite of the reforms in contents, the same structure is mainly followed even today. The reason for this must be in the deep correspondence of the code´s contents with the local values (i.e., morality) and the way of thinking (i.e., mentality) and therefore culture (i.e., the context of morality and mentality together).
During the autonomous period, legislative reforms were not easy to realise in Finland. Therefore, the Finnish legislation was for some time static 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 in the current society. It is said that since then, legal reforms have usually been realised quickly without wide societal discussion. One of the main goals has been effectiveness.Footnote 22 The other effect from the Russian period is that of easily adopted new interpretations in the case law whenever needed, if the legislator has not reacted to current needs in the society. This makes flexibility, creative solutions and common-sense trademarks of the Finnish legal culture, which from the more careful Swedish perspective could even be described imaginative.Footnote 23
Especially in Finland, legal problems which are not covered by a specific statutory provision are often solved by applying analogical principles expressed in the other statutes or by supplementing case law. Additionally, in the uncodified or only insufficiently codified areas, legal doctrine plays an important role.Footnote 24 This is especially true in Finland.
It has been argued that especially this part of the Finnish history—the period of autonomy and ensuing legislative challenges—have marked Finnish legal culture and made it what it is today. Moreover, Russification caused an emphasis on legalityFootnote 25 to take root among civil servants, and this culture of legality still affects the current system.Footnote 26 However, not all scholars share this explanation. Björne, for example, is of the opinion that the passive resistance of the Finnish civil servants and the counter-measures made against the nationwide (Russian) legislation did not have much to do with the legalism as such but were more based on the will to interpret laws as the interpreter desired. Björne also discusses the Finnish legalism further and illustrates his opinion that the legalism is just a myth with a number of sad historical examples, like trials after the civil war.Footnote 27
However, these types of tragedies linked with wars and other exceptional circumstances, like trials after the civil war or the war-responsibility trials in Finland after the Second World War, cannot be used as daily-life examples. They are of a political nature, and therefore neither the legalism nor the legal protection was fully (or even partially) realised. Of course, the depth of the legalism and the legal protection of the society will be tested under exceptional circumstances, and if the practice will stand even then, then legalism and the legal protection can be said to be fully in force. Usually, the legalism will work during good times, but whenever societal (political) problems arise, the violations unfortunately start to become more common.
The role of legality can also be challenged in Finland today. Of course, in both Sweden and Finland legality is highly appreciated as one of the most important principles in legal democracy and rule of law. Still, the notion that legality plays a bigger role in Finland compared with Sweden or other Nordic countries can be argued to be a myth. I would say that the myth is the role of the legality in Finland as such, not its background and reasons for it. I would also argue that there are not major differences in experiencing and realizing legality in the Nordic countries. It is a basic tenet in the Nordic law as a matter of fact. Perhaps the situation would have be different in Finland earlier, such as at the beginning of the country’s independence, when the signs of Russian period still were in people’s minds and had a greater effect than they do today.
Also, the judicial activism as well creative and instrumentally acting courts and judges in Finland are facts which tells us that in a very pedant way interpreted legality is probably not the most important aim. If the legality were taken in a very strict and formal way, there would not be much space for judicial activism or creative, practical solutions. However, these above-named effects; creative interpretations and respect of legality do not directly correspond with each other but in fact are quite opposite tools to handle difficult and undesirable political situations.
Reality and daily life at courts looks very different today than in the early 1920s. There are new challenges like multiculturalism and globalisation thanks to which clients at courts represent many different cultures and speak many different languages. At the end of 2019, there were about 19.56% foreign inhabitants (born abroad) in SwedenFootnote 28 whereas the same figure for Finland in 2018 was 7%.Footnote 29 At the same time, cases are more international as well. Both criminality and business are no longer confined by state borders but have an international and cross-border character. Therefore, judges need to know how to tackle these types of cultural differences and language problems and how to decide cases which are not based only on the national law. In this modern context, the strict respect of legality or origins to that type of previous legal culture in Finland seem no longer to be current issues. The daily-life situations show that many other problems and values have become more current by time.
2.4 The Main Cornerstones in Recent History Until Today
When the Finnish Parliament adopted the Declaration of Independence of Finland on the 6th of December 1917, the new state thus already had a rich national culture and centuries of experience in managing its own affairs. As explained above, the makings of the independent nation stem partly from the times of Swedish rule (from the thirteenth century until 1809) and especially from the period when Finland was an autonomous Grand Duchy of the Russian Empire (1809–1917).
Extra flavour was added to this cultural soup by the Finnish civil war in 1918 and its consequences, as well as by the Second World War and the war-responsibility trials, which were of an accentuated political nature. The latter incidents may likely have resulted in increased demands on democracy, the rule of law and legal protection.Footnote 30 In the 1970s, unemployment caused a deep crisis in Finland, as did the economic depression in the beginning of the 90s; such periods have cultural and mental effects,Footnote 31 not only in general but also specifically in the court culture. With these two and other potential crises still in their minds, the general audience and professional groups like judges and legislators are more sensitive when faced with difficult situations and the associated risks. It is easy to remember what things were like during times of crisis, and it is not forgotten that new crisis are still possible in the future. There is no belief that happy days will last forever.Footnote 32
In Sweden, there have been no wars and more need for workers than unemployment; even the economy has consistently been relatively buoyant, at least compared with many other countries. The current COVID-19—crisis is the biggest crisis in the last 200 years.
In Sweden, the ideology of folkhemmetFootnote 33 well illustrates recent Swedish societal history. It still profoundly affects the self-imageFootnote 34 of Swedes today. Nothing similar has occurred in Finland, even though both countries are welfare states. The idea of folkhemmet strongly affects Swedish culture and the Swedish way of living, especially with regard to social connections like working environment and labour law. It highlights the importance of group participation in decision-making (e.g., in the workplace). This social way of thinking arising from the folkhemmet ideology is very widespread throughout Swedish society.
This mindset affects legal culture as well, including the ways in which legal tools are used and laws are interpreted. The differences in juridical law-making can be explained by these societal reasons, which have led to two different court mentalities in the East-Nordic countries.
The discussion on legality, described above, its origins and meaning in daily life and during the exceptional circumstances, is current also today. The legality is not working in the same way during the exceptional times than in the normal daily life. It has been evident, for example, during the current COVID-19 period, when the government in Finland has given false information on the valid restrictions, most likely to make people more compliant. It has not clearly informed on the difference between recommendations and obligations. Because the parliament and government decided to implement emergency legislation, this type of unclear information has been deeply misleading. Under normal conditions, people can more easily estimate what is and is not legal, but a general audience cannot know the contents and limits of emergency legislation. For instance, Finnish citizens were not told that they could still come and go over the border based on their fundamental rights despite the emergency legislation.Footnote 35 Only since the legal scholars started to pay attention to this lack in information, the written instructions were changed and for instance, ministers started to stress this in an oral way too. Still, I argue that it is not entirely appropriate to use exceptional political trials as daily-life examples. How the law should be interpreted and applied in daily life in routine cases should be researched as well. The situation as a whole should then be compared with the research target, like legality. Only if the legality is interpreted and followed strictly both in the daily life as well as during the exceptional circumstances, it is possible to draw conclusions which describe the local attitudes in general. The cases with political value are usually exceptional, and sadly often tragic, examples. Therefore, I would like to sum up that what Russification affected into the Finnish legality is no longer very current. The value of legality has become lower. Additionally, it must be stressed that the above described traditional effects from the periods of Russification are in contrast. On the one hand, legality is underlined in this context. On the other hand, the rapid reforms and creative case-law as a solution are mentioned too.