Domaredernas historia

Genom Institutet för Rättshistorisk Forskning grundat av Gustav och Carin Olin har jag fått möjlighet att under hösten 2018 arbeta viss tid med ett projekt om domaredernas historia.

Projektet har på engelska rubriken

Impartiality and Independence.
A Comparative History of Judges’ Oaths of Office in Europe

och handlar sammanfattningsvis om följande.

Judges’ oaths of office are interesting for many reasons: In most European countries, judges still take oaths of office. Judges promise to act impartially and independently. Many phrases in these oaths can be traced to the Middle Ages. It can be analysed how these phrases were transferred from one oath to another and from one jurisdiction to another, and from which sources they originally came. During the nineteenth century, many of these oaths resisted suggestions that they should be abolished. Today, we see a need to remember the roots of impartiality and independence as these judicial virtues are threatened in some European countries.

The development of the judicial oaths, and the transfer of phrases from an oath in one jurisdiction to an oath in another, and the origin of these phrases in other types of texts, has so far not been subject to comparative legal historical research. In this project, I would like to fill this gap in the literature. My plan is to do this in the form of a book, Impartiality and Independence. A Comparative History of Judges’ Oaths of Office in Europe.

I have divided my material into six chapters:

1. Introduction
The introductory chapter presents the topic of the book, and contains a gen-eral discussion about the function of oaths from the Middle Ages to today.

2. Oaths of the thirteenth to fifteenth centuries
The thirteenth to fifteenth centuries is the period when oaths of judges emerged in many jurisdictions, so in this chapter I will compare the form and content of these “first oaths”, at the moment German, English, Scottish, French and Swedish oaths.

3. Sources of inspiration
In this chapter, I will present the sources that contributed with material to the oaths of the thirteenth to fifteenth centuries – Decretum Gratiani, texts by Isidore of Seville, Burchard of Worms and Innocent III, and phrases from the early ordines iudiciarii.

4. Development of the oaths during the early modern period
Here, I connect to chapter 2 and continue the analysis of the oaths as they developed from the sixteenth century onwards, for instance with more lenghty, baroque-style reminders to the judges of their duties.

5. Decline of oaths, and secularization and religious pluralism, in the modern era
In this chapter, I will discuss the critique against oaths of the nineteenth and twentieth centuries, the secularisation and differentiation of oaths for dif-ferent religions and how the judicial oaths despite the critique survived in most jurisdictions.

6. Independence and impartiality as heritage of the oaths
Finally, I will discuss how the oaths have helped defining the independence and impartiality of judges and what we can learn from the history of these oaths for the position of judges in today’s Europe. I will connect the inde-pendence and impartiality of judges according to the oaths to the modern human rights charters and conventions and the case law of the European Court of Human Rights.

Fullständig projektbeskrivning i pdf-format: Judicial oaths project

Om Martin Sunnqvist

Jur.dr i rättshistoria, rådman vid Malmö tingsrätt
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