Page - 92 - in Austrian Law Journal, Volume 1/2019

ALJ 2019 Wolfgang Faber/Claes Martinson 92 What we will explain in this chapter is, first, why functionalist approaches developed in Scandinavia and in the United States (section II.A.). This is not a historical exposé, but rather an explanation to how the aims of the functionalists are understood today. Against this background we will present a short step-by-step instruction of how the functionalist approach can be used when dealing with property law issues in general, or when property law and EU consumer law need to be considered in a particular case (II.B.). The fact that we use functional ideas is not an attempt to promote the functional approach as superior than any other approach to legal thinking.27 Nevertheless, it can be used both for reflection and as a technical tool when trying to reconcile property law principles and EU consumer law. A. Why a Functional Approach? The development of a specific kind of legal thinking is of course a complex phenomenon to describe, even more so when this development concerns two different cultures. It is clear that both US and Scandinavian jurisprudence were influenced by the movement of legal realism in the early twentieth century. The legal realisms of the two cultures are, however, different.28 At the same time legal realism does not fully explain why the functional approaches developed in any of these legal cultures. We do not need to go into historical details here. What we want to explain is how, as to substance, functional ideas approach the concept of ownership and how they manage to deal with the same problems without focusing on such a concept:29 One central idea of legal functionalism is that the ownership concept is not fit for connecting different kinds of issues to each other. Different relationships and their different legal issues should be kept apart. The different issues should be dealt with on their own merits. The concept of ownership should not be used to connect them. This can be illustrated by the following quote (describing pre-UCC American sales law): “Unless a cogent reason be shown to the contrary, the location of title will govern every point which it can be made to govern. It will govern, between the parties, risk, action for the price, the applicable law in an interstate transaction, the place and time for measuring damages, the power to defeat the other party’s interest, or to replevy, or to reject; it will govern, as against outsiders, leviability, rights against tort- feasors, infraction of criminal statutes about sales, incidence of taxation, power to insure. The burden is put upon any individual issue to show why it should be honored by being severed from the Title-lump in any particular, and given individualized treatment. Now this would be an admirable way to go at it if the Title concept (or other basic integrated concept used) had been tailored to fit the normal course of a going or suspended situation during its flux or suspension. But Title was not thus conceived, nor has its 27 Also, the functionalist approaches have, so far, not been developed to the extent they could have; see, for instance, ERLEND BALDERSHEIM, TIL TINGSRETTENS TEORI (2017); Claes Martinson, Något om behoven av att underhålla och utveckla den nordiska (funktionalistiska) rättstraditionen – Segelbåtsfallet, in FESTSKRIFT TILL GÖRAN MILLQVIST 461 (Lars Gorton, Lars Heuman, Annina H. Persson and Gustaf Sjöberg eds., 2019). Compare also Michael G. Bridge, Roderick A. MacDonald, Ralph L. Simmonds and Catherine Walsh, Formalism, Functionalism, and Understanding the Law of Secured Transactions, 44 MCGILL LAW JOURNAL 567 (1999). 28 See, e.g., Gregory S. Alexander, Comparing the Two Legal Realisms – American and Scandinavian, 50 AMERICAN JOURNAL OF COMPARATIVE LAW 131 (2002). 29 For a description of general characteristics of legal functionalism see, e.g., BLANDHOL, supra note 25, at 51–72. With regard to the concept of ownership, see also Alf Ross, Tû-Tû, 70 Harvard Law Review 812 (1956–1957).