Centre for Advanced Study

at the Norwegian Academy of Science and Letters

Foundations and space of action of Nordic inheritance law: Strategies, relations and historical development c. 1100 - 2020

Abstract

The aim of the project is to undertake a multidisciplinary, comparative study of the development and social effects of inheritance law in the Nordic countries taking a long-term perspective, covering the period from the beginning of the high Middle Ages until the present day. Inheritance law is one of the most basic and comprehensive fields for regulation of society, because it defines how property and resources shall be transferred from one generation to another, and thereby has far-reaching consequences for the overall distribution of resources and means of subsistence for succeeding generations. Thus, it has been closely interconnected with marriage practices and strategies, demographic development, family and household organisation as well as varying forms of cohabitation in general. Through the structures and conditions it establishes, inheritance law also defines a specific ‘space of action’, where various strategies could be implemented by various actors, following partly coinciding and partly contradicting interests. This applies to the direct descendants of the deceased, the closest relatives on each of the former spouses’ sides, as well as the relationship between the direct descendants and the surviving spouse, having basic needs for further provisioning after the death of the partner – not to forget the interests at stake when people remarried. Thus, a major question concerns the degree to which it has been possible for the deceased/testator or the older generation to influence property distribution among later generations by implementing certain measures while still alive: by making wills, bestowing gifts or establishing trusteeships, foundations or entailed complexes of property.

Through the ages, the inheritance and family laws of the Nordic countries display many common features and points of contact, but at the same time clear differences have also been manifested in legislation and court practice. This development will be analysed through a comparative approach, focusing not only on the similarities and variations within Nordic legislation concerning inheritance, but also on wider European and multicultural influences. Contemporary inheritance law is facing challenges that arise from recent societal development. This relates not only to the loosening of kinship ties due to changes in family structure and new patterns of cohabitation, as well as the shift that has occurred with the welfare state's increased responsibility for support and provisioning that originally rested on family ties. The challenges are also connected with the increased diversification of value-orientation in the population, partly due to the increase in international mobility and cross-border relations, leading to a higher degree of co-existence between various groups displaying different legal traditions, and demands for international harmonizing of inheritance procedures. The aim of these investigations will be to present a comparative account of Nordic inheritance law in a long-time perspective, stretching from the high Middle Ages and until the current situation.

The project work will focus on four fields of investigation:

1) Inheritance legislation: First, the interests, premises and mechanisms at work during the process of legislation should be highlighted, including local power structures and needs conceived as imperative from a domestic point of view, as well as the interaction with and reception from other legal systems. This concerns the influence from Roman and Canon law (international ecclesiastical law) during medieval times, the German-Roman law of the 16th and 17th centuries, the German pandect law of the 19th century, as well as the impact of various Common Law traditions in recent times.

2) Wills, probate cases and court practice: Secondly, focus will be directed on how various actors have tried to promote their own purposes in relation to property devolution by the use of wills, marriage contracts and legal disputes. This should be studied in the context of various challenges posed by actual transformations of society, provoked by such factors as population increase, changing social stratification and family structure and the development of new forms of livelihood (e.g. as the result of industrialisation).

3) Property design: In addition, a series of measures has often been applied in order to meet particular requirements of the legators and their partners/families, relating to the desire to keep property or business complexes together and to prevent dispersal by default application of inheritance law. Special concerns for providing support and subsistence for the heirs and other relatives might also have played a role. These measures may be understood as particular cases of ‘property design’ and comprise such measures as the establishment of foundations, specifically entailed estates (fidei commissum), legacies, and pensions, as well as the ascription of usufructuary rights and rights to draw rent from specific property complexes. The use of trusteeships for minor heirs and the surviving spouse’s right to retain undivided possession of conjugal property should also be taken into consideration in this respect. Foundations and legacies are on the one hand a useful device for preserving property complexes, but may also cause problems when they are used for supporting families, because of the requirements of irrevocable separation and independent management. The aim is to study the varying application of such measures over time, and among different social strata. Of particular interest is the institution fidei commissum, which – based on European models – seems to have been introduced in the Nordic countries during the 17th century.

4) Status of persons and acting options: A fourth approach consists of studying the options for actions and possible strategies that might be followed by various actors, according to their status and the roles they are allotted in the process of property devolution; e.g. as married spouse, unmarried, or descendant – born either in or out of wedlock. More broadly, this concerns the individual status ascribed to particular persons: how they are regarded by the other actors, whether they are supposed to follow their own, individual interests, or whether they were conceived as representatives of the wider kinship group, expected to act in the interest of a particular kindred. Of particular interest in this respect is the occurrence of allodial rights (odal right) which was predominant in most Nordic countries – except Iceland – during Medieval and Early Modern times, and which gave certain members of a kin group the right of pre-emption and redemption of landed property that had been owned by members the same kindred for a minimum of time, defined by a specified number of generations or years.

The project group consists of social and legal historians from all Nordic countries (Denmark, Finland, Iceland, Norway and Sweden)

End Report

The aim of the project was to undertake a multidisciplinary study of the development and social effects of inheritance law in the Nordic countries in a long-time perspective, covering the period from the beginning of the high Middle Ages until the present day. Inheritance law is one of the most basic and comprehensive fields for regulation of society, as it defines how property and resources shall be transferred from one generation to another, and thereby has far-reaching consequences for the overall distribution of resources and means of subsistence for succeeding generations. The project focused on the interests, premises and mechanisms at work during the process of legislation through the ages, with its different influences and various needs and challenges to be met by the legislators, due to societal changes. It was also concerned with inheritance law as a contested and constrained space of action, giving room for various acting options and strategies that might be followed by diverse actors, according to their legal status, social position and interests.

During the year at CAS, the members of the group have studied the expressions of Nordic inheritance law as it is manifested in the consecutive laws (from the various provincial laws in the early Middle Ages and the separate medieval National laws), law revisions/additions and preparatory considerations for the reformulation and introduction of new law provisions. Examples from court decisions and probate records - as well as challenges of the present-day, due to changes in social patterns, have also been considered.

Some interpretation problems stemming from the older law sources have been discussed at internal seminars by the group members; such as the inheritance succession prescribed by the Norwegian National law established by Magnus the Lawmender in 1274, and a selection of Nordic medieval sources.

The results of these studies will be published in two volumes: “A History of Inheritance Law in the Nordic Countries, 1100 – 2020” (working title), which will provide a comprehensive and comparative survey of the long-term development of inheritance law in the Nordic countries from the Middle Ages to the present. “Space of Action and Legal strategies: The workings of Nordic Inheritance Law through the Ages” (working title). The aim of this volume is to highlight the part of the project which concerns the aspect of inheritance as a contested and constrained space of action, focusing on the legal strategies employed by various actors – law-makers, potential heirs as well as testators. This volume will be an anthology, with contributions on separate fields and processes, not only by the members of the research group, but by other authors as well.

The year at CAS provided us all with the time and resources for a project that never would have been possible otherwise. In particular, the opportunity for concentrating on specific themes and problems, without being interrupted by teaching and administrative duties, was excellent.

Fellows

  • Asland, John
    Professor University of Oslo (UiO) 2014/2015
  • Holdgaard, Marianne
    Professor Aalborg University 2014/2015
  • Jónsson, Már
    Professor University of Iceland 2014/2015
  • Korpiola, Mia Margareta
    Professor University of Turku 2014/2015
  • Magnusdottir, Audur
    Assistant Professor University of Gothenburg 2014/2015
  • Selmer, Bodil Roberts
    Professor Aarhus University 2014/2015
  • Sigh, Helle Ingrid Møller
    Head of Department Strandingsmuseum St.George 2014/2015
  • Vogt, Helle
    Associate Professor University of Copenhagen 2014/2015, 2017/2018

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