Toward Modern DSL

Nehrman was the heir of German enlightenment, and a learned man who got his most important influences from the University of Halle, which was where the first university textbooks were published in the vernacular - that is, in German (Modeer 1979, XII; Bjorne 1984, 88).

What is most important is that, at Halle, Nehrman absorbed the idea of teaching the doctrinal study of law in the vernacular. Of course, there were many Swedes who thought highly of the idea of Swedish as the language of science (as a legacy of Sweden's golden time as a major European power).

This fact has not been seen as crucial in Nehrman's choice. He represented the new European culture that set a new task for universities: to make a connection with the surrounding society. The teachings were no longer meant to stay inside the universities, making the vernacular the only possible tool for the spreading of knowledge. Nehrman has himself expressed this aim in the introduction to one of his works, where he clearly writes about the reasons for the book's publication in Swedish. According to him, the main reason was that the book should not prevent those without knowledge of Latin from reading it. Nehrman also hoped that the work would be read by other than law students - that is, people who needed to know what was regulated in the Swedish law.

In saying this, he was not only thinking about practising lawyers but also about commoners for whom it was important to know the content of their own law.

In a way, the selection of language also saved the central principles of domestic law for future generations. This is because Nehrman was strongly opposed to the receipt of foreign law, which had become common in the 17th century in the cases where the old Swedish law grew silent. For Nehrman, using foreign law as grounds for judgement was the same as using a foreign language in education.

Nerhman's opinion had both positive and negative consequences. The strength­ening of the status of domestic law in Swedish jurisdiction was positive, but this process came at the price of severing the direct connections between Swedish legal thought and the main streams of the rest of Europe. Even Nehrman's writings could not be read by anyone except the Swedes (as well as their Scandinavian neighbours). This is the dilemma of all small legal cultures. There is a major difficulty in trying to be strong domestically while at the same time taking distance from the international legal community. Still, Nehrman's choice can be seen as the strength of Swedish (and Finnish) law in the long run. A domestic judicial culture, cultivated with care and precision, has a lot to offer to others. Actually, that has been seen in recent decades as law has become international and English has assumed the position of the legal lingua franca. On the other hand, the intellectual connection to continental Europe was important in Nehrman's case as well.

Nehrman was one of the all-time most productive authors of study material in Sweden (Modeer 1979, XVI). He wrote textbooks, compendiums, lectures, and everything that could be of use to the students, which is why Nehrman held intel­ligibility and ease of reading as important values when working on texts. He even turned down administrative tasks (e.g. the appointment as Rector) to take the time to work on his writing for the good of the students. Nehrman has also been said to have been an exemplary teacher. He addressed his students personally and tried to direct their attention toward questions they would benefit from, all the while supporting them and warning of the dangers of excessive pedantry. What is most important is that David Nehrman always stood for justice, doing this independently and without the influence of the establishment, even though he was otherwise loyal to the church and to the authorities. Nevertheless, he could also be sharply critical at the moments when justice and truth were in danger of being swept away by ornamental language and trivial theories.

On the other hand, Nehrman was a researcher and teacher at a time of change. The beginning of his career happened at the time when medieval land and city laws were still in effect in Sweden, even though he lived to see the birth of the big codifi­cation of 1734 - the most highly developed legal code in Europe at the time. Some might even talk about the two “phases” in Nehrman's teaching and output. For these reasons alone, Nehrman was obviously a pioneer and a central source of influence in Swedish judicial life. He represented both the old and the new.

When interpreting the old land and city laws, he clearly resisted the use of foreign law as the ground for judgement. At the same time, he rejected the use of Roman law as a direct source. On this point, Nehrman was peculiarly multifaceted, for his reasoning was leading him in two directions.

First of all, the rejection of Roman law had some purely practical reasons. According to Nehrman, university studies were to be occupationally oriented and close to practice. In this regard, Roman law was a cultural obstacle, a kind of cov­ering layer that prevented the young law student from understanding the central questions of domestic law. While Roman law was strange, domestic law was famil­iar, “our” law, and for these reasons one was not supposed to study Roman law at the university but use one's time in learning the fundaments of the national judicial system.

Nonetheless, Nehrman himself did not abandon Roman law completely. On the contrary, even though Roman law was not supposed to be taught at the university, it was to be researched to the extent that it worked as a tool for comprehending Swedish law. It was of great concern to the doctrinal study of law, which is why Nehrman thought Roman law was an important subject for one who wished to become a researcher (academicus). It is this very comment that makes Nehrman's relationship with Roman law Janus-faced and troublesome. What was “natural” law for Nehrman was actually the Roman one, and because Swedish law was supposed to be in accordance with natural law, it became, for practical reasons, something like Roman law.

This paradox is not as inherently strange as it might seem on first reading. This was the way of thought in the school of Halle as well. As was already referred to, the same line of thinking was later represented by Friedrich Carl von Savigny. The historicist school he founded carried out ideas rather similar to the thoughts of Nehrman a hundred years before. So, not much is new under the sun.

On the other hand, Nehrman had a true respect for the old Swedish law, on the clarification of which he spent most of his life's work. Roman concepts and ways of thinking formed a natural and secure foundation for the interpretation (Modeer 1979, XIX). Roman law offered something like an intellectual framework, into which the old domestic law could be positioned.

After the Codification of 1734 had come into force, Nehrman's attention was directed towards the interpretation of the brand new legislation. It was no longer a matter of interpreting old sections or unclear legal principles that had lost their relevance in many places. Now there were new statutes available. Nehrman, faithful to the authorities, held them as the most important legal source. The method of legal studies was literal interpretation. For the clarification of the new legislation, he published a revised edition of his Introduction to the Swedish law. Nehrman explained his positivist stand by noting that every jurist has an obligation to improve their knowledge throughout their lives, to test their beliefs in every case as it comes before them, to confirm as right what truly is right and to defend what they, after careful deliberation, see as true.

So, the time had now come to interpret the statutes and to find the legislator's intention, but once again there was a reliable guarantee in case the law grew silent and the intention was not made clear: the concepts and principles of Roman law would serve the final firm ground.

Matthias Calonius, who lectured and wrote more than half a century later than Nehrman, stood in favour of the then prevalent thinking on natural law. He was not “orthodox” or overtly theoretical in this. He focused more attention on the statutes of the 1734 Codification than most of the natural law theoreticians of his time.

Still, Nehrman's case highlights modern legal thought even better than Calonius', a fact that is worth mentioning as far as the general Nehrmanian view is concerned. He was strongly opposed to the thesis repeated by many: Bonus theoreticus, malus practicus. In his opinion, the matter was quite the opposite. Good theory is always included in good practice. For Nehrman, it was self-evident (solkar) that theory and practice could not be separated since they were both present in the lawyer's thoughts at the same time (stezse wara tilhopa).

In this way, David Nehrman left the future generations with a valuable, but diffi­cult legacy: one cannot strive for an occupation or practice legal conventions without the foundation offered by theory. Statutes are forgotten as the years go by, as is the message of the textbooks, but the equipment offered by legal principles, central concepts, rules of reasoning, and the general doctrines and theories will last.

This current in Nehrman’s thinking invites us to evaluate it one more time. As was said before, Nehrman had a strong sense of duty towards law students. He published his lectures because the students spent a lot of time taking notes (the Studerande anwant mycken tid pa afskrifvandet). Man was supposed to be made to think, not to copy. To think about what? Here we come to two claims presented by Nehrman:

(1) In studying the doctrinal study of law, practical goals were supposed to dominate. The students were not to be taught theories, but the kind of information they would later need in practical life. In common terms, it could probably be said that the teaching should be practically oriented. This was why the students were to use the university to gather infor­mation and skills they could later take advantage of in practice. A good judge does not need anything other than proper information; what is the valid law? This is the core and purpose of adjudication (Modeer 1979, XVI).

The claim seems overtly practical, hostile to theory and makes it seem like studying the doctrinal study of law should be “pipe-like” and profession-directed. One might even say that, according the above-cited passage, the teaching of the doctrinal study of law in universities should be more like studying in a present-day vocational high school, or, in a sense, as it is practised by the law schools of American universities. If Nehrman’s words are interpreted like this, the title of this introductory chapter is truly correct: Bonus theoreticus, malus practicus. This way of thinking banishes the­ory from university teaching and makes the cultural aims of the university crumble. Still, this was not Nehrman’s intention, nor do I think would it have been approved by Matthias Calonius. Nehrman’s true stand is made evident in his other main thesis:

(2) Roman law as well as the natural law of the time are highly important studies for those who wish to become researchers (hognodigt studium for den som vill bliva academicus). The doctrinal study of law, as a science, can never be practised without theory. Each claim about practice is filtered through theory; it is, in the words of the modern philosophers, theory-rich. Good theory serves good practice and vice versa (Modeer 1979, XVIII).

Hence the theoretical approach is not only a sufficient but also a necessary tool for scholars, not so much for the teachers. On the other hand, only a good scholar can be a good teacher. That is Nehrman’s final conclusion. I have on some occasions talked about “smuggling” theory into practice, especially at times when there has been suspicion about the significance of theory. There is no reason to retreat from this idea, but it still only forms half of the truth. For Nehrman (and for me too) the theoretical approach should be an integral part of legal thought. In this regard, Nehrman can be interpreted in two ways.

First of all, he was an heir of the school of Halle, and adopted the thinking on natural law from there. Here, Matthias Calonius was a relative of Nehrman, even though Calonius’ natural law was, to be exact, not as deep and well articulated as Nehrman’s. However, for both of them, the doctrine of natural law was a strong and uncontested philosophical hypothesis in all of their scientific work.

It does not matter which natural law tradition they committed themselves to. What is essential is the fact that natural law had a central role in shaping their thinking and that this philosophical hypothesis was actually filtered through to their practical statements. As regards the European doctrinal tradition, both of the mas­ters were constantly working with the ancient tension between natural law and legal positivism. As the system of provincial law had its gaps, the principles of natural law were adopted as the foundation for gap filling and interpretation - especially in gap filling, where the natural law doctrine was directly applicable as the sole decisional basis.

At the time of the 1734 Codification, Nehrman's way of thinking went through a change. The primary legal source was the code itself, as well as the legislative history. Only in cases where those two grew silent or left room for different interpre­tations was support to be sought from natural law. This interpretative stance could be called the acceptance of the indirect effect of natural law. As legal positivism totally rejects the role of natural law, it is clear that here one finds a sharp difference between Nehrman's and Calonius' thoughts compared to the positivism - whatever one means by positivism. The difference is in the role of natural law as a legal argument, either directly or indirectly.

There is not only the general Hallean natural philosophical foundation to be found in the background of Nehrman's thoughts but also an idea of legal concepts as necessary elements of law. Concepts are established norms that define the proper meaning of the words used in legal language. In this respect, Nehrman even seems to be some kind of a “pre-Kantian” thinker. For him, legal concepts are not only a contingent collection of notions being instrumental in this respect.