Justitia et Prudentia. Rättsbildning genom rättstillämpning - Svea hovrätt och testamentsmålen 1640-1690

Sammanfattning: The purpose of this doctoral dissertation is to investigate how legal issues relating to the law of wills were handled in the clash between the demands on the legal infrastructure of late 17th century Sweden on the one hand, and the insufficiencies of the medieval Swedish legislation on the other. The focus of the study is the law of wills, and how the absence of written law was handled by the appeal courts, primarily in the first royal court of appeal in Sweden, the Svea Court of Appeal. The Svea Court of Appeal established in 1614 and was situated in Stockholm, initially located in the royal castle where the court worked closely with the Crown. Two types of cases could be brought before the appeal courts: (i) appealed cases from the lower courts and (ii) cases which were the appeal court were the first instance, and the latter consisted mainly of cases involving nobility. During the period between 1640 and 1690, Svea Court of Appeal handled 169 cases relating to the law of wills. Out of these, 40 were subject to a review by the King in Council, and it is these 40 cases that this study focuses on. In over 75% of these cases the parties were members of the Swedish nobility. Two aspects are central to the study: Firstly, how did Svea Court of Appeal handle the formation of new law in its ruling in cases relating to wills? How were issues relating to the legal form of the deed of will and the scope of the disposition by will? Secondly, the study focuses on the legal argumentation. The formation of new law was in part influenced by the lawyers’ use of new legal terms and legal figures. What type of reasoning did the 17th century lawyers use in the will disputes? Which arguments, terms and legal figures appeared in the party writings and the Court of Appeal’s findings? From where did the inspiration to the legal arguments and solutions come? How was it possible to combine the new legal influences with the old legal traditions? New law was formed through the writing of the parties and the reasoning of courts. The goal of this study is to put the formation of law and the argumentation relating to the law of wills into a legal cultural context, with a view to increasing the understanding of the lawyers’ work and knowledge structures during the period in question. The Swedish lawyers imported new ideas and new legal concepts to a very large extent during the 17th century. This was a inter alia a result of Sweden’s participation in wars on the European continent, of the study trips (peregrinations) in Europe taken by Swedish law students and also of the fact that foreign law professors became more and more common at the Swedish universities. Ius commune had a big influence on both the legal development and the view of the sources of law during this period. The argumentation in the will deeds and eventually in the will cases was not based solely on legal arguments. Religious and moral arguments for rights of inheritance also became more and more common. The legal position regarding the law of wills was clarified in 1686, when the Statute of Wills was enacted. The Statute of Wills was largely based on case law from the appeal courts, and the regulations had been drafted based on the replies from the appeal courts in Stockholm, Turku and Jönköping to a questionnaire sent out by the Crown. The enactment of the Statute of Wills in 1686 also coincided with a period of intense legislation, and the same year a major law reform was initiated which eventually resulted in the new Swedish Law Code of 1734.