2.1. Scandinavian law and Swedish courts

A tradition in comparative law is to speak of legal families, but opinions about the most important features of a legal family differ among legal scholars. Most agree that common methods, legal terminology, characteristic institutions, and a shared legal background unite a legal family. Zweigert and Kötz (1998) argue that the most convincing of the groupings so far is the division into seven families: French, German, Scandinavian, English, Russian, Islamic, and Hindu. Malmström (1969) argues that within the Western legal group (European-American) four legal families can be distinguished: the legal systems of Continental Europe (with German and Romanistic subgroups), the Latin-American system, the Scandinavian system, and the Common Law system. We can conclude that Scandinavian law is generally regarded as distinct from other legal families, but some scholars regard Scandinavian law as a subgroup of civil law in continental Europe (Sundberg 1969; Tamm et al. 2000; Bernitz 2007). Another name for Scandinavian law is Nordic law since it refers to the law of the five Nordic countries – Denmark, Finland, Iceland, Norway, and Sweden – included in the group.¹ Scandinavian law has three key factors separating it as a legal family: the limited importance of legal formalities, the lack of modern codifications, and the absence of an actual reception of Roman law.

The division of the world into legal families and the inclusion of systems in a particular family are vulnerable to alteration by historical development and change and depend on the period of time one refers to (Zweigert and Kötz 1998). The Scandinavian legal tradition goes back to the early medieval period when similar provincial law codes appeared in Denmark, Norway, Iceland, and last in Sweden. This intense period of legislation coincides with a period of political and ideological consolidation of the emerging states (Lindkvist 1997). The provincial laws in Sweden were replaced by a law code of the entire realm in the mid-14th century. There was one legal code for the countryside and one for the small cities; however, there were no major differences between the two. This medieval law code was in place until 1734, when a new national law was introduced to include countryside and towns (Sveriges Rikes Lag [1780] 1984). However, the new law code did not radically break from legal tradition (Lindkvist 1997, 216). The land-holding peasants formed the local community in the laws, and the yeoman was the standard legal actor (Korpiola 2014). The 1734 law code is formally still in use but both the content of the law and how the courts work have fundamentally changed (Jägerskiöld 1984b).

The long-term history of jurisdiction in Sweden relates to how the king and the state (crown) gained increasing control over the process at the expense of local communities. Starting in the 17th century, the jurisdiction slowly became more professionalised. The court had its roots in an organization for self-government, not just as an arena for jurisdiction (Österberg et al. 2000). Medieval jurisdiction was under control of the local communities, which were the fundamental legal authority (Korpiola 2014; Lindkvist 1997). The countryside was divided into judicial areas. The primary unit of jurisdiction was an assembly called ting. The ting, known since the Viking age, was a general assembly of the community where diverse matters of the community were settled. During the Middle Ages, it became an arena were rural communities convened to manage their legal matters. The court proceedings took place under the leadership of a judge who made decisions with a panel of twelve local men, the nämnd (appointed or nominated; hereafter jury), who served as lay judges. Jury members were generally peasants and did not have to be freeholders. No official could sit on the jury, and the jury represented the community and its knowledge of local people and circumstances.

During the late Middle Ages (15th century), the jury seems to have had a longer term instead of being appointed for each case (Inger 2011). Some men had long careers in the jury and thus became influential in the local community. In the 16th century and part of the 17th century, the jury strengthened its position in the court. Korpiola (2014) argues that lay dominance in the judiciary was one of the cornerstones of Swedish legal cultural identity compared to other European regions. The members of the jury not only acted as lay judges, they also could be appointed by the court to act as surveyors, mediators, and inspectors in legal disputes. Hence, the jury had various tasks in investigating cases, informing the judge, and assessing evidence and guilt. The Swedish jury, unlike the English jury, did not have to reach unanimous conclusions. A simple majority was enough to determine the verdict. The participation of the community was essential for the legitimacy of the court (Korpiola 2014). At the end of the 17th century, the jury’s impact began to decrease. From the 1680s, a judge had to be appointed by the king, and the 1734 national law required a unanimous jury decision to overturn a judge’s verdict (Sundin 1992; Inger 2011). One explanation for the stronger influence of the Swedish peasantry compared to much of contemporary Europe was that peasants constituted one of the four societal estates of the Diet that was standardised in the 16th century (Korpiola 2014).

A prominent person in the court was the länsman, established as part of the judicial system in medieval time (Korpiola 2014), who after 1694 had a clearly defined role as prosecutor and was employed by the crown. He was appointed by the county governor (landshövingen) and lived in the district where he worked. The länsman could be selected from among the peasants in the court district but often belonged to the upper stratum of society (Sundin 1992; Ulväng 2004). Even though as prosecutor he brought cases to the court, individuals or groups of individuals presented the majority of all cases.

Another feature of the Nordic judicial system was that many cases were resolved by settlements in court, not out of court (Österberg et al. 2000). The courts have been described as social arenas where the local community met the authorities and together “took part in the exercise of social control” (Österberg et al. 2000, 252) and as a place where local economic and other relations were settled (Lindkvist 1997). The importance of the local courts for the community is evident from the attendance figures. In some areas in northern Sweden, as many as 30% of the population came to court sessions in the 17th century (Taussi Sjöberg 1996). Lindkvist (1997) points out that a particular feature of the judicial system in Sweden was the total absence of private jurisdiction. Because the court system was also quite simple, almost all cases were prosecuted in the local court. The local court was a low-cost arena for participants since no legal fees were charged to bring a case to court (Liliequist 1994).

In the 17th century, the state became more efficient and established a more strict hierarchy between the levels of the jurisdiction system. In 1614, a permanent superior court of appeals was established to supervise the local courts and revise verdicts if necessary. Within decades, three additional superior courts were established to serve separate districts. In an attempt to make jurisdiction more standardised, local courts had to send their rulings to a superior court for examination (Jägerskiöld 1984a). In spite of these changes and a discussion among elite society about the legal system during the early modern period, the legal system used in my study area in the late 17th century still had many features going back to the late medieval period.

2.2. Study area and its agricultural system

Leksand Parish encompasses the southern part of Lake Siljan and a stretch of Osterdal River (Österdalälven), and central Leksand is about 48 km from Falun, the main city in Dalarna County. As in many upland areas in Europe, the peasants in Leksand had an integrated and flexible economy (Viazzo 1989). The pillar of the economy was a mixed subsistence farming where animal husbandry was the more important part. The area was not self-sufficient in grain production, and the peasants needed money to buy grain and pay taxes, so secondary occupations were intrinsic to the peasants’ lives. Migration of labour was an important part of the economy (Rosander 1967). The term adaptive family is used to stress the importance of flexibility in households’ reliance on various income sources and describes Leksand household strategies in early modern upland Sweden (Wall 1986; Larsson 2014b).

Leksand was not a typical early modern Swedish parish. Leksand and Upper Dalarna differed from other parishes and counties in Sweden during the 18th century with regard to inheritance rules, structure of agriculture, and dependency on migration of labour. However, because Leksand developed a well-established common-property regime (Larsson 2014a), it is well suited for an investigation of how the local court dealt with collective-action problems.

Leksand was a homogeneous society with a shared understanding of many important aspects of life. The people belonged to the same church; it was a fairly egalitarian society with no large landowners except the church. Almost all adults were landowners, all peasants were freeholders, most people were born and raised in the community, and the local court handled all legal matters. Until 1870, when industrialization started in Leksand, all households took part in agriculture and raised animals. In Leksand and the surrounding area, partible inheritance was practised and both sons and daughters inherited land. Until 1845, daughters inherited half of what sons inherited. After that sons and daughters inherited equal shares (Sporrong and Wennersten 1995).

Starting in the 16th century, the peasants in Leksand developed a transhumance system for utilizing the forests for grazing, and between 1660 and 1870 more than 600 cases related to this system were brought to the court (Larsson 2009). Almost all of these cases were concerned with different management aspects and only a few cases dealt with crime, i.e. theft or assault. The animal husbandry system used in early modern Leksand was classified as Alpine transhumance due to stabling the livestock during the winter (Davies 1941; Larsson 2012). Each summer the animals were taken to summer farms situated 5–35 km from the villages. The pasture grounds in the woodlands were commonly owned and the purpose of the summer farm was to use common pastures to feed the animals and to process milk into long-lasting dairy products (butter, cheese, and whey-cheese) (Larsson 2009, 2012).

2.3. Source materials

For an investigation of conflict-resolution mechanisms in early modern Sweden, court rulings are the most appropriate source material available. Hence, the primary sources in this study were rulings from the Leksand court district. Leksand, Bjursås, and Åhl parishes comprised the court district, but Leksand was the largest and represented about 70% of the population (Palm 2000). I have had access to unique excerpts from these records extending from 1660 to 1870 written by Dr. Sigvard Montelius in the late 1960s (Sigvard Montelius archive, private collection, Falun, Sweden). Montelius excerpts consist of more than 800 cases he collected while working on a book about summer farms in Leksand (Montelius 1975). Not all cases cover summer farms, but more than 600 cases do, giving an excellent overview of how the court was used as an arena for solving collective-action problems concerning a transhumance system for more than 200 years. I have confirmed that the excerpts correspond to the original court records in two ways: (1) Montelius’s excerpts are not word-for-word excerpts but are in the meaning very close to the originals; (2) the 600 cases are almost a complete collection of cases concerning summer farms from the parish. After reading all the excerpts, I divided them into groups concerning different management aspects (Larsson 2009, 212–215). To get a deeper understanding of how the court worked in solving collective-action problems, I selected a dozen original court rulings for very careful reading (Uppsala Regional Archive KLHA). The selections represent common collective-action problems according to the analysis of the 600 cases and are from the late 17th century and first decades of the 18th century. This was when the court took an active role in solving collective-action problems, and I chose specific rulings to illustrate different strategies the court used.

The local court was an arena where people did not hesitate to bring cases, and people in the Nordic countries supported the law and the normal judicial forums. Earlier research has shown that a large proportion of people’s disputes were heard in court (Österberg et al. 2000). Even though many minor problems were solved in informal settings or within organizations created by the peasants (e.g. villages, summer farms), the large number of different cases brought to the local court give a rich picture of practices at the summer farms and how conflicts where resolved. User groups decided rules for governance, rules that had to be consistent with the law. Most of these by-laws probably were never written down and are not preserved. Some of the by-laws from the second half of the 18th century to the mid-19th century are known, since the user groups wanted the local court to confirm them because it gave the by-laws legal status from the state. A peasant could belong to numerous user groups encompassing different uses of resources and activities, i.e. summer farm community, village community, and parish community. Mismatches between them could be solved in the court, if necessary.

It has been argued that by-laws are our primary sources for the rules and ideas that governed collective agriculture (Warde 2013). Even though by-laws are excellent sources, they have some weaknesses compared to court records. By-laws cannot be taken as reliable guides of how commons were actually managed, and we do not usually know if a particular by-law represents a long-established practise or a novelty. Even the most ambitious by-law lacks information of key elements in collective agriculture. By-laws are normative, pointing to how users should behave, but they tell us little of how users actually behaved. By-laws provide some of the formal institutions for management, but not the informal rules that we know are crucial to understanding commons management (North 1990; Ostrom 2005). In court records, formal and informal institutions meet, and the early modern court became an arena for solving mismatches between the two. Plaintiffs and the accused met and their arguments were weighed together. Conflict-resolution mechanisms must be viewed in the light of the agricultural practises. Court records give us the insight into agricultural practise that makes it possible to understand how conflict-resolution mechanisms were handled in early modern societies.

Like all source material, court records have their pitfalls. However, the usefulness of a source is dependent on the question it is asked to solve. For example, if people exaggerated or lied in court is not important when the question in the study is how the court worked to resolve collective-action problems.

The distinction between civil and criminal cases that is important in many legal studies are not of interest here. The development in Leksand was similar to the general trend in Sweden during the 18th century, where civil cases were the most common cases brought to the local courts (Ågren 1992). This development is an expression of how economic cases became more important. There is often a grey zone between the types and thus it may be hard to distinguish one type of case from another. When a plaintiff complained about trespassing to the court, he argued that a violation of a boundary had taken place (a crime). The accused often denied there was a boundary between them or said the boundary was different from what the plaintiff had said. This exchange turned the question into a matter of utilization areas, an economic question and a civil case (Larsson 2014a). Scholars have argued that in practise civil and criminal cases did not differ much (Sundin 1992).

3.1. Staying in the village

In the last decades of the 17th century, it became compulsory to have a summer farm in Leksand. This rule emanating from the peasants’ management of animal husbandry was confirmed by the court and made into a formal rule. A case in the fall of 1694 was brought to the court because there had been complaints that some peasants stayed in the villages with their animals while the majority of peasants moved their animals to the summer farms (Uppsala Regional Archive KLHA, 1694, fol 37). The court decided that the länsman together with trusted men² should thoroughly investigate the summer farms and make arrangements so peasants without a summer farm could join one. However, the court realised that all peasants could not afford a summer farm. Hence, the court decided that poor people could stay in the village during the summer and gave a reason for the decision: because poor people needed the milk from the animals to make a milk soup to feed their children. It would have been impossible to feed their children if the animals were away from the village. The court also created a definition of poor person as one who had only one cow or one or two goats. The court also stated that more wealthy peasants had to move to a summer farm. Here the court was making many decisions on questions about which the law said very little. The most obvious is the decision that peasants needed to have a summer farm. When the court decided to exempt poor people from moving to a summer farm, it argued that it was done for mercy and for the well-being of the children. By doing this, they avoided getting into the more subtle questions of whether poor people could afford a summer farm and fully take part in the agricultural system the court had proposed. Investments of materials and labour were needed to establish a summer farm: erect buildings, put up fences, etc. Poor families usually had fewer members than wealthier families (Gaunt 1976; Larsson 2014b). Hence, it would have been a proportionally heavier burden for them to send a family member to the summer farm compared to a wealthier household. The court came to the conclusion that a few poor people’s animals grazing on the pastures surrounding the village would not damage the pastures for people returning from the summer farms in the fall. The court’s ruling eased the burden on the poor instead of increasing their burden by forcing them to establish a summer farm. It also might have prevented them from needing poverty relief, a burden that would have been carried by the remaining peasants.

3.2. Moving together

When in early summer the villagers should move to the summer farms and when in the fall to move back to the villages, was a question that often invoked action at the court. The court heard a case in the beginning of December 1717 involving complaints that some peasants in the parish disregarded established rules³ and moved their animals to and from the summer farms without coordinating with neighbours (Uppsala Regional Archive KLHA, 1717, §54). Five jury members submitted a written statement complaining on behalf of some of their constituents. The court concluded that it was unfair not to coordinate the move since the common pasture was for all peasants in the villages and if some users arrived earlier than the rest, large amounts of the feed would have been eaten by the time the rest of the peasants arrived. No one was punished for breaking the rule, but a fee of 40 Daler silver coins was determined for future violations. To make the court decision known to all members of the parish, the court decided the verdict would be read aloud at the next parish meeting (sw. sockenstämma). It was important for the implementation of rules regarding open and closed seasons and that all users of the commons knew the rules as well as the possibility of having to pay fines. The court decision indicates that they used graduated sanctions (Ostrom 1990, 2005). No one was punished for violating the rules, the court clarified the rules for future use, and all users got a warning: the next time a violation occurred the violator would have to pay a fine. However, the problem with coordinated moves and respect for open and closed grazing seasons continued. In the first 50 years of the 18th century, a case about coordinated moves appeared in court every other year (Larsson 2009).

In a 1727 case, a number of people had violated a 1725 court decision that all people had to leave the villages for the summer farms (Uppsala Regional Archive KLHA, 1727, §144). Nine of them had to pay a fine of 5 Daler silver coins; the rest, according to the court, had valid excuses or had no summer farm. However, the court stated that in the future it would not accept people staying in the villages and those who did not have a summer farm had to acquire one. The big difference between the proposed fine of 40 Daler silver coins in the case from 1717 and the actual fines of five Daler silver coins given in this case is another indicator that the court used graduated sanctions.

There was an agreement among some villagers in the eastern part of Leksand about moving animals to the summer farms in the spring, an agreement confirmed by the court in November 1726. Despite the agreement, some people stayed in their villages during the summer of 1727. In the fall, some of the peasants who had moved sued those who had stayed (Uppsala Regional Archive KLHA, 1727, §159). The arguments for not moving were plenty: some lacked summer farms, some argued that the summer farms were too far away, and others said the pastures at the summer farms were scant and better pastures were found around the villages. In its ruling, the court said that since the agreement had been put into effect without everybody’s participation, it was difficult to enforce it. However, two persons who had signed the agreement in 1726 but stayed in the village during the summer of 1727 had to pay heavy fees for intentionally not following the agreement and an extra fee for disobedience of the court ruling. More importantly, the court’s decision tried to find a solution to the problem that encompassed at least seven villages. The court appointed trusted men to investigate and gather all people involved so they could participate in the investigation. The court’s guideline for the investigation stated that in areas where moving to the summer farms would create more harm than good all peasants should stay in the villages, but in areas where the summer farm pastures were sufficient, all peasants had to leave the village during the summer. The court emphasised that it was particularly wrong for larger-scale cattle owners to stay in the village. Further, the court said that the investigation had to take into account each homestead’s share in the village and that the number of animals they could take to the summer farm should correspond to that share. The court explicitly mentioned that it was important to establish amity among the participants. A final solution to the problem had to wait at least until the investigation had taken place in 1728.

3.3. Trespassing

The most common cases in the 18th century were about trespassing on the utilization areas of summer farms (Larsson 2014a). Individuals sometimes put their livestock on grazing land of other communities’ summer farms, but it was more common that summer farm communities or a village and a summer farm community had disputes about boundaries. In a case from 1727, villagers were accusing a summer farm community of trespassing (Uppsala Regional Archive KLHA, 1727, §136). Even though two resolutions had been adopted to divide the pastures between the two entities, the first in July 1711 and the second in October 1726, the court decided to discuss the case. The court urged them to solve the conflict among themselves, but also appointed four trusted men to do an inspection. The trespassers argued that they did not recognise the boundary because not all of their members had taken part in the surveys in 1711 and 1726. They also accused the villagers of having enclosed parts of the commons, which reduced the pasture area of summer farms. These arguments were enough to convince the court that a new survey was necessary. This process could take time, but it seems that for the court it was more important to implement and inform than come to a quick solution. All appropriators would be given the chance to be heard and from the users’ complaints and suggestions, the court would find a solution.

3.4. Enclosures

As in the example above, it was quite common for parts of the commons to be enclosed for private or semi-private use. Some of them were enclosed to keep a little arable land close to the summer farm buildings or to put up fences to corral calves and lambs that were too small to follow the older animals into the woods to graze. These enclosures were normal for the type of agriculture practised, and land close to summer farm buildings was perceived as private property (Larsson 2014a). However, in some cases large pieces of land were enclosed that most members of a summer farm community could not accept. In a case from 1737, all members of a summer farm community complained to the court about enclosures (Uppsala Regional Archive KLHA, 1737, §61). The court decided to appoint one of the lay judges and the länsman to investigate the enclosure before a decision could be made.

The opposite problem of enclosures also emerged as conflicts, when users let their animals onto other users’ enclosed land. In another 1737 case, peasants from several villages had let their cattle and goats onto another village’s meadows (Uppsala Regional Archive KLHA, 1737, §68). Even though no one denied what had happened, the court did not punish the intruders. Instead, the court issued a statement: the owners of the meadow had suffered remarkable damage, a ban to enter the meadows was introduced, and any person letting his or her animals onto land without property rights in the future would have to pay a fine.

3.5. Rights to the commons

With the examples above, we can see how summer farm communities came together and sued individuals who they argued were free riding on the commons. It also happened that individuals sued a summer farm community for denying them access to resources they argued they had the right to use. In 1737, a man named Olof Andersson sued the summer farm community at Getbergs because they denied him his right to be a member of the summer farm community and to use the common pasture (Uppsala Regional Archive KLHA, 1737, §56). Olof Andersson had two arguments for his right to be a member. First, his father had been a member, and second, he was not a member of any other summer farm so he had nowhere to feed his animals in the summer. Despite the summer farm community wishing to deny him membership, the court decided that Olof Andersson could join. The main argument was that he had the right to use the commons and since his father had been at the summer farm they could not deny him access.

3.6. Fire

In an agricultural system dependent on collective action, disasters that an individual peasant faced could cause problems for more than just the household involved. According to Swedish law, fires in a village had to be handled by the local court (Sveriges Rikes Lag Gillad och antagen på Riksdagenåhr 1734 [Sweden’s Law, approved and passed by the Parliament in 1734] ([1780] 1984, 90 §6). A case of a fire at the summer farm Långbodarna on September 21, 1737, was brought to the local court in Leksand in November the same year (Uppsala Regional Archive KLHA, 1737, §58). To estimate the damage the peasant had suffered, three lay judges living near where the fire had occurred were appointed to investigate. When the court met in November, they presented the results to the court. Three buildings and winter feed for the animals (hay and leaves) had been destroyed in the fire. The only person at the summer farm when the fire occurred was an old dumb maid tending the animals in the woods and it was hard to get any information from her. In its decision, the court considered other hardships that had befallen the peasant (not specified in the decision) and decided to pay him 134 Daler copper coins to cover the damage from the fire. It was exactly the same amount of money as the lay judges had estimated the damage to be. The compensation had to be paid by the other community members.