The Concept of Ownership - The Scandinavian way of thinking (ENG)
Abstrakt
Denna framställning undersöker hur olika rättstraditioner formar juristens syn på äganderätt och påverkar hur juridiska problem angrips i praktiken. Genom att jämföra den skandinaviska funktionalismen med den kontinentala substantialismen tydliggörs hur rättskultur präglar sättet att resonera, tolka och argumentera.
Syftet är att ge läsaren en fördjupad förståelse för hur dessa grundläggande tankemönster påverkar juridisk problemlösning i praktiken.
Introduction
The key identifiers of the functionalist way of thinking are that property and ownership is placed within context and relations, an essence of ownership is never discussed ratherScandinavian functionalists deal with each relation on their own and break up the problems into distinct parts that can be dealt with on their own merits, this is also called a fragmented approach.
Ownership in the functionalist world, is relative, without a clear problem there is no need to define who the owner of, for example a car is. Only when parties with relations, interests and intentions are presented can we discuss ownership, and even then, only in terms of potential solutions or more specifically outcomes. It’s not to be used as a primary method of problem solving. The term ownership is rarely used as it serves no concrete purpose.
As a Scandinavian legal student, I rarely think about solving a problem by thinking about ownership, I usually approach a problem by studying the parties and trying to understand their intentions. In my way of thinking I have been trained to think that by understanding the intentions I can understand the problem better and thus reach a - in my world - fair solution.
I would like to outline an example; Adrian buys a car from BIL AB. Adrian has paid for the car in full and the car is being delivered by an employee of BIL AB. The employee stops for coffee and accidentally scratches the side mirror. The question is who should pay for the repairs?
If I were to solve this problem I wouldn't think about who the owner is, I would begin with understanding the obligations and isolating the problem in question. The payment is not a concern, so I ignore it. The fact that Adrian is going to be the recipient of the car is not of concern, so I ignore it. The only question that arises is who should stand the risk in delivery and why. Thus, I use the facts of the case to outline intentions and interests to argue who should stand the risk, that fact helps me conclude who should pay for the damages using norms in the legal system that deals with delivery and risk in isolation. This shines light to the fact that I have not once in the process thought to question if Adrian has acquired ownership of the car.
The constrains of this approach is that without reasonable detail it’s practically impossible to, without a case, define the legal landscape. As every question is handled on a case-by-case.