Förmögenhetsrätt på spektrumet : innebörden av en distinktion mellan naturliga och konstruerade rättsinstitut

Sammanfattning: The legal conception and methodology developed by the Historical School of Jurisprudence had a strong impact on Swedish legal scholars in the 19th century, influencing the legal faculties at the universities as well as the drafting of private law legislation. In his seminal work System des heutigen römischen Rechts Friedrich Carl von Savigny, the figurehead of the Historical School, used the terms legal relations and legal institutions as core concepts, distinguishing between the natural institutions of family law and the artificial institutions of private law. These terms were used in a similar capacity to how Friedrich Julius Stahl, a decade earlier, had used them in his work on legal philosophy, Die Philosophie des Rechts nach geschichtlicher Ansicht. The distinction between natural and artificial institutions has been criticized as an unhistorical abstraction and as a necessary precondition for the subsequent development of conceptual jurisprudence. This thesis investigates the relation between natural and artificial institutions, as well as the function and meaning of the artificial institutions in the legal system and the reasoning of the courts. The thesis proposes a spectrum ranging from natural to artificial as an analytical framework. Through a historical and dogmatic analysis of three legal institutions different aspects of the artificial character of legal institutions are presented. The analysis of the legal institution of stoppage in transitu shows that a natural institution based on customary law over time can evolve into an artificial institution, far removed from the concrete circumstances in which it developed. This is the case with stoppage in transitu in Swedish law. The analysis of the legal institution of culpa in contrahendo shows that it originated in a legal remedy theorized by Rudolf von Jhering and gained authority through court practice over time until it was codified in German law. By contrast, the use of culpa in contrahendo in Swedish law has declined over time and been functionally replaced by a general principle of good faith. Though the institution has not been made obsolete, it is now generally regarded as a specific expression of the good faith principle. The analysis of the legal institution of unjust enrichment shows that in contrast to the continental civil law systems, Nordic and Swedish legal scholars have generally been firmly opposed and highly critical of its application. There are provisions stipulating compensation based on unjust enrichment in several different laws and it has been used in the reasoning of the Supreme Court, but the prevailing opinion among legal scholars has been that such an institution doesn’t exist in Swedish law. In the last thirty years, essentially a new generation of legal scholars has acknowledged the existence of unjust enrichment in Swedish law. From the results of the historical analysis artificial institutions can be understood as abstract systematic units with a core normative content expressed in technical-legal language. Their function in the legal system is to bridge the gap between fundamental ethic norms inherent in the system and individual legal relations for which no rule exists. The natural or artificial character of institutions can only be determined in relative terms, and in the evolution of a specific legal institution this character is not fixed, but subject to gradual change.  In the reasoning of the court the analyzed artificial institutions are mainly used as a vehicle for legal analogies or as an argument to determine if a proposed analogy is justified. These arguments are routinely based on legal doctrine and prior court praxis, and only occasionally cites preparatory works or legislation. In the reasoning of the court, invoking artificial institutions are a means of solving hard cases by creating new rules which are formally coherent.