Consequences of changing expectations to law and its institutions

Illustrated by the role and background of judges in Norway

In: Tijdschrift voor Rechtsgeschiedenis / Revue d'Histoire du Droit / The Legal History Review
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  • 1 Ass. Prof. Dr. jur. Sören Koch, University of Bergen, Faculty of Law, Magnus Langabøtesplass 1, N-5020 Bergen, Norway

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The paper focuses on the reasons for and effects of the establishment of appellate courts in Norway. Based on the assumption that the introduction of an appellate system was caused by – and at the same time produced – expectations of law, the author reconstructs central features of the Norwegian legal order and its surrounding legal culture. By especially looking at the crucial role of the legal office of the lawman (lagmann), both in the development of the judicature in general and especially in the courts of appeal, the legacy of the medieval popular assembly (þing / ting) is traced back to its historical roots. The author identifies a close relationship between the increasing influence of state power, the demand for an effective judiciary and prevailing ideals of justice. The result was a not always intended but continuous professionalisation of the judges until the 19th century. The introduction of a jury – consisting of lay judges – appears on this background as aberration. However, as expectations on law had changed, the participation of lay judges had become a political desire in Norway from approximately 1830. To support this political claim the judiciary was restructured by applying a deeply unhistorical perception of the judiciary’s historical roots. Due to contradicting political tendencies it took about 60 years to finally establish the jury-system. Despite the fact that the institution of the jury was constantly criticized by legal scientists and legal practitioners alike and despite losing its political backing already decades ago, it still continues to exist. Obviously, the romantic notion of folks-courts still has not lost its attraction jet. The paper demonstrates that this notion is – seen from a historical perspective – unsustainable.

  • 44

     Cf. decree from 24. Oct. 1634, NRR IV, p. 699 ff., cf. K. Bloch, Herreds- og byrettenes organisatoriske utvikling [Historical development of the organisational structure of local courts] (originally printed as an annex to the preparatory works NOU 1980:12), in: Bloch, Helle, Kiil and Sandvik, Udvalde emne frå norsk rettshistorie [Selected topics from Norwegian legal history], Oslo 1981, p. 37–106, on p. 60; Nissen (supra, n. 9), p. 37.

  • 45

     Decree from 6. Aug. 1607, NRR IV, p. 211–212; cf. Bloch (supra, n. 44), p. 51 f.; Nissen (supra, n. 9), p. 36.

  • 59

     Cf. Norwegian Code (1687) Book IV Cap. 6 § 7 [4-6-7].

  • 63

     Royal Decree of March 4th, 1735.

  • 67

     See Decree of 3. Juni 1796, Kap.VIII § 24, see also § 36 (limiting the number of co-judges to two in specific cases).

  • 74

     Cf. Royal Decree of 3. juni 1796, Cap. IX § 30: ‘When a party has made a statement in the case, the judge is supposed, when he considers it necessary to investigate the case by himself. He can command the prosecutor to hand down documents or testimonies of witnesses, which could prove the innocence of the prosecuted person […]’ Cf. in addition § 35, where still some accusational elements are present: ‘[…] og det skal være Aktors pligt, at giøre Høieste-Ret opmærksom paa det, som, med Grund, synes at fortiene Paatale og Irettsættelse’ [And it shall be the prosecutors duty to direct the Supreme Court’s attention to actions that, based on just grounds, should be prosecuted]. Concerning the development from accusation to inquisition and back to a process with more accusatorial elements, the parallels with the Danish system are striking, cf. P. Anderson, Studier i dansk proceshistorie, Tiden indtil Danske Lov 1683 [Studies in Danish history of process, The period until the Danish Law was enacted in 1683], København 2010.

  • 78

     See Royal Decree of 1541, in: NRR, I, p. 115 and 207; see in addition NRR, I, p. 402 f. (1564), p. 597 (1568); II, p. 11 (1575), p. 233 (1577), p. 578 (1584); III, p. 236 (1592), p. 311 (1593) and p. 341 (1594).

  • 79

     NRR, II, p. 897.

  • 82

     Compare note 34 above. NRR, II, p. 697; and 1590 NRR, III, p. 64 f.

  • 94

     Holberg, 1729, Cap. XIII, p. 682. Næss has proven that lawmen often were ordered to take the position of such a ‘commissioner’; Næss (supra, n. 26), p. 254 ff.

  • 100

     Royal Decree from 11. Aug. 1797.

  • 104

     See in detail NOU 2011:13, p. 32 ff.

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