The Concept of Ownership - The Scandinavian way of thinking
Contents
This paper examines how different legal traditions shape the lawyer's view of ownership and thereby influence how legal problems are tackled in practice. Through a comparison between Scandinavian functionalism and continental substantialism, it makes visible how legal culture shapes the way of reasoning, structuring legal questions and building legal argumentation. The aim is to give the reader a deeper understanding of how these fundamental patterns of thought affect legal problem-solving — not only theoretically, but in the concrete use of method.
The analysis is both comparative and reflexive. The second part of the paper takes as its starting point a practical case concerning the transfer and use of a motorhome, and tests two methodological approaches against the same factual situation: on the one hand, a codified, concept-oriented model in which the passing of ownership is central; on the other, a relational, interest-balancing functionalist analysis focusing on the parties' dispositions, the allocation of risk and their actual room for action. This makes visible how the same substantive conflict can be structured in fundamentally different ways depending on whether the analysis starts from abstract legal concepts or from concrete legal relationships.
The contribution of the text lies in making clear that the difference between the traditions concerns not primarily outcomes, but where in the system the normative balance is placed — with the legislature through abstract concepts, or with the person applying the law through a situation-specific balancing. The work thereby highlights both the strengths and the blind spots of the Scandinavian method in which I myself have been trained, and makes ownership the object of methodological critique rather than merely doctrinal analysis.
Excerpt
The key identifiers of the functionalist way of thinking are that property and ownership are placed within context and relations, an essence of ownership is never discussed rather Scandinavian 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.