Law Addressing Diversity by Gijs Kruijtzer Thomas Ertl

Author:Gijs Kruijtzer,Thomas Ertl [Gijs Kruijtzer,Thomas Ertl]
Language: eng
Format: epub
ISBN: 9783110427189
Publisher: De Gruyter
Published: 2017-09-15T00:00:00+00:00

Mia Korpiola

Legal diversity – or the relative lack of it – in early modern Sweden

Introduction

When discussing legal practice in early modern Western Europe, legal diversity is usually mentioned as one of the hallmarks of the era. France resembled a normative mosaic with its roughly 700 local customary laws, most of which were to be found in print before 1600. At the end of the ancien régime, there were still 300 local and 60 general customs.366 Indeed, the French legal system has been described as being of “unbelievable complexity” (incroyable complexité).367 Isabelle Paresys compared the various overlying jurisdictions in Amiens to a mosaic (mosaïque de juridictions) that made the functioning of the justice system complex.368 Similarly, Julie Hardwick has talked about a “patchwork of overlapping and competing jurisdictions in which multiple local legal regimes (customary and Roman) operated alongside the national decrees issued by the crown, and canon law […] as well as the arrêts of the relevant sovereign courts.”369

Moreover, in France, for example, there was a wide array of feudal or seigneurial courts, due, for example, to partible inheritance, in which real circumstances were very diverse (grande diversité) – and consequently, much criticized.370 In France, jurisdiction over certain types of cases could vary from one town and region to another, and it has been suggested that “juridical inconstancies of this kind were rife in early modern legal systems.” In turn, the French case has been claimed to be typical of early modern Europe.371 In addition, the early modern Spanish court system has been compared to a Cretan labyrinth from which few lawsuits ever emerged. As Henry Kagan has observed, “the labyrinthine state of Castilian law had its bewildering analogue: an array of law courts and legal tribunals so bewildering that lawsuits regularly became lost in a confused jurisdictional morass.”372

Without attempting the ambitious task to assess the extent to which the alleged representativeness of France really applies to the whole of early modern Europe, as some have claimed, I will conduct here a case study of early modern Sweden. I will argue that, in comparison with countries like Spain and France, there was relatively little legal diversity in Sweden. I will also analyse the reasons for this. The relative simplicity of the system was not the result of one determining factor as this was by no means unique to Sweden. Rather, a mixture of economic and geographical factors (peripheral location, poverty of the country), political factors (turbulence, expensive warfare, rise of royal power after the Lutheran Reformation, the limited role of feudalism and corresponding political representation of the peasantry) and legal factors (lay domination of the judiciary) all contributed to the lack of diversity, as will be discussed below in more detail.

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