Swedish legal culture A general orientation and sources of law

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1 Swedish legal culture A general orientation and sources of law INTRODUCTION TO SWEDISH LAW Andrea.iossa@jur.lu.se

2 Insights from Comparative Law A legal system cannot be understood without reference to the broader contexts (historical, socio-economic, ideological, etc...); Law as social practice within a legal community; Law as a tool of social organisation; Concepts of legal cultures and legal communities; Avoiding the misuse of comparative law as mechanism for legal transplant ; Avoiding legal imperialism as unidirectional exportation of legal concepts and rules.

3 Insights from Comparative Law Legal families from a Western point of view: Roman-Germanic family (Civil law); Common Law family; Socialist family (collapsed). Differences in legal sources and codification; Changing dynamics due to the process of Europeanisation and globalisation of law / human rights; Swedish (and Scandinavian) legal system in the intersection between Civil law and Common law;

4 Insights from Comparative Law Global perspective: Western legal culture: individualism and rationalism; Asian legal culture: collectivistim and natural order; Islamic legal culture: no division between law, morals and religion; African culture: collectivism, tradition, and social control. Intersections, inside differences, history, economy, and colonialism.

5 Insights from Comparative Law Non geographical classification (based on the interaction between law, politics, and philosophical or religion traditions): Rule of professional law: Law Politics / protection of individuals / marginal influence of social structures; Rule of political law: Political process and legal process not separated / Influence of political relations and government; Rule of traditional law: No separation between law and religious and/or philosophical tradition / Trascendetal elements / Unity between individuals and society. Families, Sub-families, and Mixed systems; Sweden grouped in the Nordic legal systems as mixed system within the Rule of Professional law.

The Nordic Legal Family Nordic law / legal culture / legal family; Denmark / Norway / Sweden / Finland (Iceland / Far Oer / Greenland / Åland); Historical reasons: the three countries united under

6 The Nordic Legal Family Nordic law / legal culture / legal family; Denmark / Norway / Sweden / Finland (Iceland / Far Oer / Greenland / Åland); Historical reasons: the three countries united under the same monarchy ( ) / Danmark-Norway ( ) / Sweden- Norway ( ) / Finland province of Swedish kingdom until 1809; Shared institutions; Similar languages (Swedish dominant though); Communitarian judicial system (Middle-Age heritage);

7 The Nordic Legal Family No extensive codification Rather small-scale legislative acts; No legally binding judicial precedent; Supremacy of legislative acts enacted by democratically elected bodies courts only determine the intent of legislator; Law as part of a social engineering political project and welfare state; Shared theoretical approach of law as social phenomenon (Scandinavian legal realism); Nordic Convention of Jurists (1872); Nordic Legal Council and inter-governmental legal cooperation (1952).

The Scandinavian Legal Realism Rejection of natural law categories and methaphysics arguments in law no moral absolutism; Axel Hägerström (1868 1939) Law as

behaviour; Law as implementing tool for a political vision of society; Importance of preparatory works as reference to democratic principle; Alf Ross (1899

8 The Scandinavian Legal Realism Rejection of natural law categories and methaphysics arguments in law no moral absolutism; Axel Hägerström ( ) Law as social phenomenon; Legal system responds to people s legitimate expectations legal basis for the social welfare state; Law binding a community to a certain behaviour; Law as implementing tool for a political vision of society; Importance of preparatory works as reference to democratic principle; Alf Ross ( ) Clearcut distinction between law sphere and politics sphere (lege lata lege ferenda); Impact in legal scholarship societal pespective in legal research rejected.

9 The Welfare State: basic features Substantial goals based on solidarity added to the rule of law; Solidarity and consensus among the groups forming the society; Social democracy / Liberal democracy; Underpinned on Marxist ideology: limiting the accumulation of economic power and wealth; Social democracy intervenes in social relationships to modify effects in favour of vulnerable (usually economically) subjects; Redistribution of economic production not based on free market dynamics: taxation system;

10 The Welfare State: basic features No limits to private enterprise and market but State as actor in key sectors (housing, education, health, etc ); Prerequisite is a solid economic system producing the resources to be redistributed. Based on social rights and social values; Universalistic features; Protection of the weaker party: social welfare legislation protects the individuals; Interests and lobby groups problem; Strong state and paternalism.

11 Basic features of the Swedish context Scarce population / poverty / late industrialisation; Rural and decentralised community; Homogeneous society; Strong State and strong institutions (monarchy, bureaucracy, nobility, administration); Parliament s role: until 1867 composed by nobility, clergy, burghers, and peasants); Scarce integration with the rest of Europe, but predatory power in 1600s; Social democratic and social welfare system and socialdemocrats hegemony (since 1914); Compromise between Labour and Capital; Neutrality (1815); EU Membership in 1995; Privatisations / Migration.

12 The Swedish Parliament / The political context 349 members in the Parliament (Riksdag): 113 Socialdemokraterna; 83 Moderaterna; 47 Sverigedemokraterna; 25 Miljöpartiet; 22 Centerpartiet; 21 Vänsterpartiet; 19 Liberalerna; 16 Kristdemokraterna.

13 The Sources of Law No provision lisiting the sources! 1) Laws and other regulations; 2) International treaties; 3) Travaux préparatories; 4) Courts decisions / Case law; 5) Customs; 6) Legal doctrine. Pragmatic and realistic approach: «if the judge recognises the authority of a source as law, it is law»; Legal sources cooperate rather than compete! Only laws are binding! The others are used to interpret the laws!

14 Laws and other regulations Constitutional acts (Grundlagar): i. The Instruments of Government (1974, Regeringsform); ii. The Act of Succession (1810, Successionsordning); iii. The Freedom of the Press Act (1949, Tryckfrihetsförordning); iv. The Freedom of Speech Act (1991, Yttrandefrihetsgrundlag). Approved and/or amended by two identical decisions of the Parliament with an election in between.

15 Laws and other regulations Acts (lagar) enacted by the Riksdag: i. Gov or Parl take legislative initative and a legislation committe is appointed by the gov; ii. iii. iv. Committe s report published as «Official investigation of the State (Statens offentliga utredningar - SOU); The report is discussed within the gov; The Council of Legislation (Lågradet) may be asked to issue a pronouncement on the report, if on important matters; v. The ministry prepares the Government Bill; vi. vii. The parliamentary commission and the Parliament in pleno discusses the proposal; If approved, the Riksdga enacts the Act, published in the offical Swedish collection of statutes (Svensk författningssamling SFS)

16 Laws and other regulations Ordinances (förordningar) enacted by the Government: i. On the basis of Parliament s authorisation; ii. iii. For enforcing a statute; On the basis of constitutional competences (i.e. on matters not falling within the competence of the Parliament; Statutory instruments (myndighetsföreskrifter) enacted by administrative agencies or local authorities.

17 International Treaties International treaties as such are not part of the hierarchy of sources; Need for being incorporated into the legal system by a twofold involvement of the Parliament: 1) Approval of the agreement; 2) Trasformation into a national law (translation). Two examples: ECHR = SFS 1994:1219: providing the ECHR is in force in Sweden as national law; EU Treaties = SFS 1994:1500: providing that EU Treaties and Acts are binding for Swedish legal system.

18 Travaux Préparatoires «Official investigation of the State» (Statens offentliga utredningar - SOU); Not binding in strictly legal sense because not voted by the Parliament; Referred to by courts for interpreting a norm on the basis of the intention of the legislator; Representing the will of the legislator ; Not binding: courts should follow these materials, but it cannot be said that they must do it

19 Case law and the role of precedents Decisions of top-rank courts (Supreme Court / Supreme Administrative Court) and specialised courts (Labour court / Market court) are seen as legal precedents; Not binding, but followed by courts as guidance they should but not must ; No rules on precedents = strong influence; A lower court challenges an higher court s interpretation (precendent) only if intending to give the possibility to higher court to reconsider its interpretation.

20 Customs Customs become costumary law when accepted as binding and regarded as authority source; Three cases: The custom is reasonable and well-established rationality and fixity; The custom expresses a general principle of law coherence; The custom derives from people the court recognises as legal authority reason. Example of collective agreement in employment law private law agreement stemming from the autonomy of the parties and having a normative effect.

21 Legal Doctrine Not legally binding, but important source of law; Courts recognise the authority of interpretation of wellestablished legal scholars; Helping to systematise the unsistematised legal system (lack of codification and relevance of preparatory works).

22 The system of courts No legally trained officers in key positions until 1734 (role of judges played by members of nobility); Tradition of rural courts: mayor + 12 highly regarded farmers; Distinction between rural and urban courts uniformed in 1940s and abolished in 1970s; Modest role of the courts in Swedish system democratic principles and prevalence of State actions.

The system of courts General Courts: District or regional courts

Appeals (hovrätter) second instance / 6 courts of appeal; Supreme

of the case / 15 judges / 5 is a quorum / 3 for simple cases;

23 The system of courts General Courts: District or regional courts (tingsrätter) first instance / 48 district courts; Courts of Appeals (hovrätter) second instance / 6 courts of appeal; Supreme Court (Högsta domstolen) last instance / considering also the facts of the case / 15 judges / 5 is a quorum / 3 for simple cases; Admistrative courts: 4 Regional Administrative courts; Supreme Administrative Court.

The system of courts Special Courts: Labour Court (Arbetsdomstolen): dealing with disputes on collective agreement / first and last instance / tripartite composition; Market Court

24 The system of courts Special Courts: Labour Court (Arbetsdomstolen): dealing with disputes on collective agreement / first and last instance / tripartite composition; Market Court (Marknadsdomstolen): cartel and competition law cases / 7 members appointed by the gov (3 legally trained + 4 representing trade and industry); Regional rent and tenancies tribunals (hyres- och arrendenämnderna): advisory and judicial functions (including arbitration) on rent and household; Environmental courts (miljödomstolar): 5 district courts dealing with cases on permits, concessions, water resources cases, etc National board for Consumer Complaints (Allmänna reklamationsnämnden): state-funded public institution dealing with disputes concerning consumer law.

25 The system of courts The Ombudsman: est / public prosecutor elected by Parl / special power to investigate against miscondunct of public authority, including courts / protecting citizens from bureaucracy / exported; The role of lay judges (nämndemän): Heritage from community-based judicial system; Participating in criminal and family law cases; Acting as judges = full participation in judicial machinery; Elected among political parties respecting the proportional representation in the district; 4 years plus ri-election; Ensuring accordance with societal values; Contributing to citizens trust in and control of judicial activities;

26 The legal education in Sweden Degree in Law (Juristexam) from six University: Lund, Uppsala, Stockholm, Umeå, Gothenburg; Örebro; Judge (Domare); Prosecutor (Åklagare); Advocate (Advokat); No need to hold the title of «advocate» to practice law and/or to defend someone in courts (seldom the case, especially in criminal law cases).

27 Thanks for your attention! QUESTIONS? COMMENTS? REMARKS?

CIVIL PROCEDURE IN SWEDEN

CIVIL PROCEDURE IN SWEDEN Joel Eriksson, doctoral candidate, civil procedure Civil Procedure in Sweden Goal of the lecture: To provide an overview of the main areas and functions of Swedish civil procedure