The Judicialization of Politics in Sweden PDF

The Judicialization of Politics in Sweden
Author(s): Barry Holmstrm

Source: International Political Science Review / Revue internationale de science politique, Vol.
15, No. 2, The Judicialization of Politics. La judicialisation de la politique (Apr., 1994), pp. 153-
164
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InternationalPolitical ScienceReview (1994), Vol. 15, No. 2, 153-164
The Judicialization of Politics in Sweden
BARRY HOLMSTROM
ABSTRACT. As to judicial intervention in politics, Sweden sides with skepti-

cal states like the United Kingdom or Third and Fourth Republic France.
The Social Democrats, in power for more than four decades, have consis-
tently defended a majoritarian and popular sovereignty view of democracy,
hostile to built-in checks on the elected representatives. But judgments of
the European Court on Human Rights at Strasbourg, and a gradual
weakening of the Social Democratic dominance in Swedish politics, have
initiated a slow but steady process toward a more significant role for court
litigation and the judicial branch. This judicialization of the political
process will probably accelerate now that interest organizations have
discovered this "American"way of influencing politics.
Dejudicialization as a Rationale for Judicial Review

The Swedish state apparatus before the democratic-and Social Democratic-era
looked like a machine staffed by legally trained people dealing with public matters
in a formal, rule-applying manner. The activities of the cabinet and its ministries
did not differ much from those of boards and agencies. As far as politics was part
of this undertaking, it was wrapped in a legalistic robe. Recruitment requirements
reflected this character of public affairs. The old Constitution stipulated that at
least two ministers (of about fifteen at that time) should be qualified jurists
(Instrument of Government of 1809, ?6). Law degrees were formally required for
all employees in the ministries and for higher posts at many boards. This require-
ment was slowly eroded by exemptions before its abolition in 1964. But, still, law
graduates formed the majority of the administrators in the ministries
(Christofferson, 1983: 169, 175; cf. sou, 1953: 16, 116-127).
The Upper House in the old two-chamber Riksdag was densely populated by state
employees from the higher echelons. About one-third were law graduates, and about
10 percent of its deputies were judges; in Sweden judges are not forbidden to partic-
ipate in politics. In the Lower House, about 10-15 percent of the deputies were law
graduates and 6-8 percent were judges. On the other hand, private lawyers have
0192-5121 94/02 153-12 ? 1994 International Political Science Association

154 TheJudicializationof Politicsin Sweden
never formed a prominent part of the Riksdag (Studier, 1936: passim; Skold and
Halvarson, 1966: 463-465). In the pre-democraticSwedish state the judicial element
constituted a Beamtenherrschaft of the German type rather than a bourgeois or liberal
state of the revolutionary French or us type.
What of the courts? The old constitution was framed in the separation of powers
fashion, but its judicial power was definitely not meant to function as a check on
the other branches. At most it was seen in the Montesquieuan vein, as an
autonomous branch with no political functions whatsoever. In fact, the judicial
branch was not even completely separated from the executive (Malmgren, 1965: 25;
Stjernquist, 1990: 108). The administrative and the judicial branches of the state
just slowly and casually emerged as two specialized and distinct parts, both origi-
nating from the same power, that of the King. Little wonder that judicial review of
administrative decisions did not stand out as an acute necessity.
Some sort of hierarchical ordering of legal norms is a prerequisite for judicial
review of legislation. This condition was amply met. Sweden had, and still has,' four
fundamental laws: the Instrument of Government, equalling a constitution in other
countries; the Riksdag Act, regulating the workings of Parliament; the Act of
Succession, stating the rules of the hereditary monarchy; and the Freedom of the
Press Act. The presence of substantial rules of a Bill of Rights type is another
prerequisite for an active, or "creative,"judicial review function. A rudimentary
form of rights declaration, a medieval remnant from the solemn declaration made
by the King at his accession to the throne, made up one article (?16) of the
Instrument of Government.
In spite of all this, and contrary to the efforts of ingenious law professors to
elevate this article to the esteemed position of a Swedish Magna Carta, the courts
took a narrow view. Like their French and British counterparts they refused to
engage in constitutional review of legislation, comforting themselves with the
correctness of the never-failing ritual of countersignatures, seals, promulgations,
and publications. Public law scholars paid judicial review some attention, but at
most they defended the view that the courts were authorized to ignore legislation
made in flagrant contradiction to explicit rules in the Constitution (Westerstahl,
1941; Stjernquist, 1990: 109-111).
However, the Instrument of Government provided that draft legislation had to
be referred to the Supreme Court for an advisoryopinion before the bill was passed
to the Riksdag. In 1909 this judicial preview, resembling that of the Conseil d'Etat
in France, was transferred to a new body, the Law Council,2staffed by justices from
the Supreme Court and a new Supreme Administrative Court (Constitution of 1809,
?21). This preview function is still part of the Swedish legislative process
(Constitution of 1974, ch. 9, ?18; Riksdag Act, ch. 4, ?10).
Today things look different. Of course, public activities are still authorized by
law, statutory instrument, or decree, and public regulation penetrates more and
more of society. But the manner of doing things and deciding matters is less influ-
enced by judicial procedures than before. Welfare state ambitions are often diffi-
cult to achieve by traditional rule-applying procedures. The legal basis for action
establishes frames and defines general principles, rather than providing specific
directives automatically applicable to a case. As a consequence the legal profes-
sion has gradually lost its hold on the state apparatus. Jurists no longer monop-
olize higher posts in the civil service, and they are outflanked as the most
numerous profession in the bureaucracy. It is true that they still dominate the
very top posts in the ministries (cf. Christofferson, 1983: 175). But this is next to

BARRY HOLMSTROM 155
inevitable. The small Swedish ministries are much occupied with drafting legis-
lation. In activities like these you can hardly dispense with people educated in
law.
Legislators in Sweden are still mainly recruited from the public sector, but they
are no longer law graduates from the higher bureaucracy or the judicial branch. In
the 1988-1991 Riksdag only twelve deputies (3.4 percent) were educated in law.
Two of them were judges (Faktaomfolkvalda).There is nothing left of the old civil
service deputies of the legal-bureaucratic sort (cf. Oskarson, 1990: 237).
The slow but steady dejudicialization of the state in these respects-recruitment
from the legislative and executive branches, scope and character of public affairs-
has occasioned a growing propensity to call for a more active role for the judicial
branch proper.
Judicial Review of Executive Action

To understand the process of judicialization it is important to have in mind the
point of departure. No rules authorizing judicial review of legislation were laid down
in the old Constitution, in force from 1809-1974. At least up until World War II,
the courts did not recognize such a right, and it was disputed among legal scholars
and largely ignored in the political realm.3Judicial review of administrative action
was permitted, eminently so since 1909, when the Supreme Administrative Court
was set up. But the scope of this control was narrow and strictly defined. In fact,
the main reason for establishing the Court was the felt necessity to relieve the
government from hearing and deciding on lots of complaints (Holmgren, 1967: 209).
Seen in this light it was natural that government decisions could not be challenged.
The Court was a substitute for the government, not a check on it. For a long time
the Supreme Administrative Court was something of a head without a body. Not
until the end of the 1970s was a developed administrative court system established
and completely separated from the county administration. The heads of the courts
were henceforth independent judges, not high county administrators.
Administrative Courts of Appeal were established, and the Supreme Administrative
Court became a genuine court of precedent (Wentz and Hermanson, 1970;
Stromberg, 1990: 180-190).
Numerous items have since been transferred to the court system. But in spite of
all these reforms a "mix" remains between administrative dealings with complaints
and court dealings (Petersson and Soderlind, 1992: 255). In many countries it is
common to distinguish between questions of law and questions of expediency. The
first are eminently a job for the courts to decide, the second a job for the admin-
istration and the government. In the Swedish system of administrative appeals-
the Swedish term is "besvar," cf. the German "Beschwerde"-this distinction is
dealt with a priori, by enumeration or specifying in each specific act, or part of an
act, where to proceed. Of course, the ambition has been to differentiate between
"political" and "juridical" questions. Yet, the plaintiff cannot choose to bring
whatever he claims to be an illegal decision before an administrative court.
Sometimes the final instance is not a court irrespective of whatever you think is
wrong. The tribunals simply have no general competence to hear complaints or
review administrative matters.
During the last decades, however, the absence of a general right to judicial review
of executive action has become a delicate problem. In the 1950s Sweden ratified
the European Convention for the Protection of Human Rights, and since 1966 the

jurisdiction of the European Court at Strasbourg has been recognized. By the end
of 1990 Sweden had been found guilty of violations of the Convention in fourteen
cases. In nine of these the Court ruled that Sweden did not protect the right to a
dispute concerning the determination of an individual's "civil rights and obliga-
tions" adjudicated by an independent and impartial tribunal (European Convention,
Art. 6, 1). These convictions, increasing in number, were embarrassing for the
Swedish authorities, and in 1988 the Riksdag approvedof a new way to bring about
a domestic court trial: plaintiffs were permitted to appeal to the Supreme
Administrative Court concerning many, but not all, decisions hitherto finally made
by the government or an administrative board not headed by a judge.
This reform was clearly an adjustment to external pressure, and the Social
Democrats in power did no more than they thought absolutely necessary. The
law was definitely not construed to establish a general right to challenge execu-
tive actions in court. Several types of administrative decisions were still excepted.
And the departure from the traditional way of differentiating between juridical
and administrative routes was also counteracted by another novelty in Swedish
administrative law. The Supreme Administrative Court's review of government
decisions was strictly confined to questions of legality. In the travauxpreparatoires
the legislators explicitly stated that the Court should refrain from "passing
judgments of a markedly discretionary or political character" (Prop. 1987/88: 69,
24-30).
In sum, parts of these reforms are certainly most aptly characterized as a politi-
cization of the judicial branch rather than the other way round. More of "political"
deliberation and judgment-discretionary action, questions of expediency, balanc-
ing of interests, deciding priorities-penetrate the business of the courts. Other
parts, for instance the transfer of cases of a law-applyingcharacter from the govern-
ment to the administrative courts, can even be said to dejudicialize the executive
branch. Nevertheless, it is also evident that the judiciary has strengthened its
powers to check the activities of the executive. The legality of many decisions taken
by the government can now be challenged in court. In this respect the expression
"judicializationof politics" is convenient.
What of the politics behind these reforms? Government bills passed through the
Riksdag without much controversy. Yet, the parliamentary debates revealed some
fundamental differences as to conceptions of democracy, conceptions that nicely
harmonized with the seemingly permanent positions as majority and minority of
the two blocs. The Social Democrats, in power most of the time, held the initiative.
They were staunch defenders of democracy conceived as parliamentary or popular
sovereignty, and were deeply suspicious of judicial checks on the political branches.
For them the main objective was to relieve the executive of routine business of
minor political importance, and so provide more effective machinery for political
reform and government.
Bourgeois politicians tended to cultivate an individualistic, rights-based concep-
tion of democracy. They were cool, if not hostile, to the Social Democrats' empha-
sis on the majority principle, and argued for a strengthening, or restoration, of the
Rechtsstaat.They were also more prone to suggest judicial review of administrative
decisions. The Social Democrats' zealous expansion of the welfare state, adminis-
tered by a modern bureaucracy and with wide discretionary powers, was a perma-
nent thorn in the flesh of the political right. These fundamental differences were
more clearly demonstrated in the dispute over judicial review of legislation or, more
exactly, of legislative norms.

BARRY HOLMSTROM 157
Judicial Review of Legislation
The case for judicial review of legislation got off to a bad start. When put on the
political agenda after World War I it was explicitly stated to be necessary because
of the democratic breakthrough. The intention was to stem the tide, to put a check
on Parliament and the government, now equally "infected" by the principle of
popular sovereignty. In other words, judicial review was presented as an anti-
democratic reform (Reuterski6ld, 1918: 70).
Naturally, this argument received no approval from the victorious parties, which
had struggled for decades against the conservatives, supported by the royal family,
to obtain democracy. The inclination of the dominant part of the victorious left, the
Social Democrats, was rather the opposite. They were, for instance, deeply suspi-
cious of the Law Council's preview of draft legislation, even though its opinions
were not mandatory. The Council was depicted as a conservative bastion acting as
a brake on social reforms. Several times members of the party proposed its aboli-
tion or, at least, that its opinions should be strictly confined to legal matters
(Algotsson, 1992: ch. 2. 2). Characteristically enough, the increasing interest in a
Bill of Rights around World War II did not ignite a corresponding interest in judicial
review of legislation. On the contrary, even the Conservative Party dissociated itself
from combining such a reform with judicial review, arguing that one should protect
the courts from getting involved in politics (Mot. FK, 1938: 128), and the Standing
Committee on the Constitution stated that judicial review of legislation neither
existed-a clear rebuttal of certain law scholars' views-nor should be admitted
(KU, 1938: 16).
For decades judicial review of legislation was hardly a political issue. Its return
to the agenda was incidental and a consequence of the work on a complete revision
of the Instrument of Government of 1809. For two decades governmental commis-
sions, composed of representatives from the four big parties, worked on the project,
finally producing the Instrument of Government of 1974. From that time the
positions of the political parties have been consistent with the ordinary left-right
dimension. The Social Democrats, in power for all but six years (1976-1984), were
the skeptics, the Liberals and the Conservatives were positive, and the Agrarians
(Center party) were uninterested and ambivalent.
The development of constitutional politics involved a gradual erosion of the leftist
position, corresponding to the weakening of the parliamentary dominance of the
Social Democrats. In official reports preceding the new constitution the Social
Democrats acknowledged the courts' right to judicial review. This was a concession
in order to get a unanimous report; initially they had demanded an explicit prohi-
bition in the constitution (sou, 1972: 15, 108). But the concession was limited.
Judicial revew was narrowly interpreted as a right to ignore but not annul rules in
flagrant conflict with higher norms. The Social Democrats stressed the point that
no Swedish court had ever refused to apply an ordinary law.4 Their acceptance of
court practice was said to rest on the assumption that judicial review would remain
a highly extraordinary activity. As long as they controlled the Riksdag the Social
Democrats blocked every attempt to add an article to the Instrument of
Government transforming the recognized convention to written fundamental law.
Party spokesmen repeatedly stressed the point that a civilized democratic state
could only survive and progress if fundamental rights were a vital part of political
life proper, espoused by the political community. Judicial review tended to weaken
this shared responsibility, making the protection of civil rights and democratic rule

the business of the courts, and implying that the elected representatives of the
people were the presumptive wreckers threatening these rights and freedoms.
Combined with the inclusion of certain rights and "fundamental aims" in the
Constitution, judicial review could become a weapon in the hands of an activated
judiciary. The Social Democrats revolted against such a "separation-of-powersstate"
and advocated representative and parliamentarydemocracy of the British type (see,
e.g., RD,1973: 110, 28; RD,1974: 30, 117-119, 121-OlofPalme, Prime Minister; RD,
1973: 110, 97; RD, 1974: 30, 67-HildingJohansson, spokesman of the party).
The Instrument of Government of 1974 was the result of a political compromise.
The bourgeois parties accepted it in return for a promise that commission inquiry
would be pursued, aiming at the inclusion of an entrenched and encompassing
rights catalogue. In a new official report, presented in 1975, the bourgeois parties
obtained new concessions. Unanimously the commission proposed an amendment
to the Instrument of Government empowering-and obliging-the courts not to
apply provisions contrary to higher norms, or provisions determined to be in viola-
tion of the procedure prescribed. Legislative norms decided by the Riksdag or the
government, though, might only be set aside if the violation was obvious (sou, 1975:
75, 47). The concessions, however, did not stand the heavy criticism launched by
the Confederation of Trade Unions and the Social Democratic press. The minority
Social Democratic government abandoned its party fellows in the commission and
returned to the negative position (Algotsson, 1987: 168-180). In the Riksdag
debates, Prime Minister Olof Palme defended the English, one might say the
Rousseauan, version of democracy against an American and-as he thought-
Montesquieuan conception modelled on the separation of powers theory (RD,
1975/76: 149, 136-141, 157-159, 162-163).
In the autumn of 1976, after 44 years in power, the Social Democrats lost the
elections and resigned. The new coalition government initiated constitutional
reforms in line with the bourgeois parties' ambitions. To be sure, they had never
formed a solid front as to judicial review. But at least they could revive the unani-
mous position from the 1975 commission report. An amendment to the Instrument
of Government was proposed, and it turned out that the Social Democrats returned
to this stance, too. In 1979 the Riksdag finally approvedthe amendment (Algotsson,
1987: ch. 5).
Constitutional Recognition: Restraint or Trojan Horse?

This extended political process resulted in a constitutional recognition of the right
to exercise judicial review. What does this mean in the context of our query about
the judicialization of politics in Sweden?
First, one should note that the absence of a written clause is patently not the
same as the absence of an extensive exercise of judicial review. Second, a written
clause establishing judicial review of legislation can be a restraint as well as a
weapon. The Swedish case is a good illustration. The article reads as follows:
If a court,or any publicorgan,considersthat a provisionis in conflictwith a
provisionof a fundamentallawor with a provisionof anyothersuperiorstatute,
or that the procedureprescribedhas been set aside in any importantrespect
when the provisionwas inaugurated,then such provisionmay not be applied.
However,if the provisionhas beendecidedby the Riksdagor bythe Government,
the provisionmay be set aside only if the inaccuracyis obviousand apparent
(Instrumentof Government,ch. 11, ?14).

BARRYHOLMSTROM 159
There are several restraints here keeping judicial review within narrow bounds.
Due procedure must be violated in some "important respect" to justify court action.
As to legislative norms decided by the Riksdag or the government, the violation or
inaccuracy must be "obvious and apparent" to justify court exception of the norm.
Putting the government in the same privileged position as the Riksdag makes this
a very strong restriction, indeed. The court ruling, finally, is narrowly confined to
the special case and does not invalidate the provision as such.
Furthermore, in Swedish jurisdiction intentions expressed and statements made
in the travauxpreparatoires are important sources for a court's reasoning and
judgment. Here you find more restrictions, reminiscent of the old Social
Democratic-and Center Party-position. It is clearly stressed that codification
must not be interpreted as a change in existing practice; on the contrary, the inten-
tion was precisely to codify this extremely cautious practice (sou, 1978: 34, 109;
Prop. 1978/79: 195; KU, 1978/79: 39, 10-14). The Riksdag Standing Committee even
added "an important advantage": that codification would be an obstacle to the
evolution and expansion of the activity of the courts (KU, 1978/79: 39, 13). A judge
reading this would hardly take it as an invitation to intrusive scrutiny.
Nevertheless, in spite of these reservations and statements, I will argue that polit-
ical life in fact has been influenced by this constitutional development. There has
been some sort of a mental shift, partly caused by the adjustments of the legal
system just described, that opens up the possiblity of an accelerated judicialization
of politics. Codification of the right to judicial review has probably played a minor
role in this development. But the present focus on individual rights and the rule of
law, combined with some other changes in the conditions of politics in Sweden, has
definitely lifted legal reasoning, the courts, and the judiciary out of the political
darkness. I will give some evidence, admittedly scanty, for this conjecture.
The first observation concerns the preview activity of the Law Council. The new
Instrument of Government, with its extended chapter on fundamental rights and
freedoms, has forced-I am not inclined to say invited-the Council to deliberate
on the conformity between draft legislation and fundamental law. In a recent analy-
sis of the Council's opinions, the author concludes that deliberation on the
Constitution and rights reasoning has increased, even if there are few cases where
a draft is found to be incompatible with higher law provisions. The increasing
number of convictions and pending cases at Strasbourg has influenced the Council's
deliberations in the same manner (Algotsson, 1992, English summary).
The most well-known case involves the Law Council's observations on a new
planning and building act, where it referred to the Instrument of Government as
well as to the European Convention on Human Rights. The opinion sparked a
heated debate on propery rights and delegated legislation, but also on the role of
the judiciary in democratic decision-making (cf. Algotsson, 1992: ch. 5.6). The Social
Democratic government made some changes in the bill to disarm and circumvent
the Council's remarks. But this did not satisfy the bourgeois parties, who made
heavy political use of the Council's observations. The government, lacking a major-
ity of its own, was forced to negotiate and make further concessions in the Riksdag
(Prop. 1985/86: 1; sou, 1986/87: 1).
An opinion from a seemingly innocent advisory body can in fact have important
political repercussions. Anticipation of the Law Council's views has become a vital
element of political deliberations in the ministries when they are preparing new
legislation. The finding against Sweden by the Strasbourg court, as well as an
increasing number of complaints and cases pending, have had the same effect. Some

of the Strasbourg cases have been highlighted in the mass media. Scoring political
points by way of court action is becoming an attractive political option.
My second observation pertains to a sensational court ruling. The constitutional
constraints imposed on judicial review of Riksdag Acts look next to insurmountable,
and the Swedish courts have shown no eagerness to strengthen their power of
review. But the prevailing political climate, fueled by the regular and more compre-
hensive scrutiny of the Law Council, has apparently loosened some chains. Last
year, for the first time, a Swedish court ruled that an Act of Parliament "obviously
and apparently" contradicted a fundamental law provision-the right to compen-
sation for expropriated property. The court consequently refused to apply the law
(Linkopings tingsratt, dom 1991-11-13, DF33).The decision was later overruled by
the Court of Appeal.
The disputed law, abolishing certain exclusive fishing rights of some land owners,
had been controversial. The Law Council had made some observations and sugges-
tions, ignored by the government, but it certainly did not argue that the proposals
obviouslyand apparentlycontradicted the Constitution. The court of first instance
took another stance, repudiating the Law Council justices from the supreme courts
and, in practice if not by intention, sided with the political opposition. Such
boldness-or lack of good judgment-would have been unthinkable a decade ago.
This court ruling is truly exceptional. But my third observation implies that it
may become more common. Seen as a probing action directed against the monis-
tic conception of democratic rule espoused by Social Democrats, it indicates the
prospects of success are better than ever. Since October 1991 the Riksdag has had
a non-socialist majority. Four bourgeois parties form a minority government with
the Conservatives as the dominant party, holding the premiership and the Ministry
of Justice. This government has made a fast start, appointing a commission to
report on the possibility of giving certain rights, cherished by the bourgeois parties,
better protection. The commission is also authorized to consider an extended use
of judicial review of legislative norms. The new government explicitly stated that
the obvious-and-apparent clause, protecting Riksdag and government provisions,
was too strong; it ought to be abolished or, at least, softened. Finally, the govern-
ment has ordered an analysis of the constitutional court alternative (Dir. 1991: 119).
This shows that perhaps the time is ripe for further moves towards greater court
latitude to intervene in matters formerly defined as political. All the bourgeois
parties, including the Center Party, which often had sided with the Social
Democrats as skeptics of judicial intervention in politics, were now prepared to
accept a wider scope for judicial review. Of course, the Social Democrats strongly
opposed every attempt to activate the courts. But their countermove did not seem
well-advised. They presented a list, containing their own favorite rights and policy
aims, in order to stall the bourgeois parties' propensity to use this technique to
withdraw highly political matters from the agenda (R&D, 1992: no. 7, 4). This strat-
egy obviously does not hit the heart of the matter but rather implicitly recognizes
the legitimacy of judicial review of legislation.
Compared to the revisionist fervor in the directives, the Commission Report,
published in May 1993, was quite moderate. It turned out that the government
parties and the Social Democrats had reached a compromise. The bourgeois parties
dropped the proposed canceling of the obvious-and-apparent clause. They were
compensated by the Social Democrats' acceptance of the incorporation of the
European Convention on Human Rights in ordinary Swedish law. Further, the legal
status of the Convention was enhanced by a proposed amendment to the Instrument

BARRY HOLMSTROM 161
of Government stating that no law or ordinance contrary to the Convention may

be adopted. The amendment was said to be necessary to protect the incorporated
law from being overruled by later ordinary legislation or court interpretations
according to the lexposteriorprinciple (sou, 1993: 40A, 30, 227-230; sou, 1993: 40B,
125-128).
If these proposals are accepted by the Riksdag, the Convention will be directly
applicable in national courts, and the potential risk for court litigation in politically
controversial matters will increase. The Commission tries to minimize this risk by
stating that the amendment should be interpreted as a directive to the legislators,
not to the courts, and it emphasizes that "the existing balance between the legisla-
tive power and the judicial power should be maintained even after the incorpora-
tion of the European Convention" (sou, 1993: 40, 229). But all depends on the
courts themselves and their principles of interpretation. They can choose the tradi-
tional method, leaning heavily on the legislative history of the enactment, which
would result in very cautious moves. Or they can take the position, common in other
countries, that henceforth every provision must be interpreted as intended to
comply with the Convention, even if achieving consistency means making a wide
departure from the meaning of the law, or statements in the travauxpreparatoires
(verfassungskonformeAuslegung). My conjecture is that the growing European and
international influence on the Swedish judicial system speaks for the latter
development.5
A New Channel of Influence for the Organized Interests?

I will conclude with some general reflections on why I think the judicialization of
politics will continue and perhaps accelerate. I will ignore what is probably the most
crucial event, Sweden's application for membership of the European Union, and will
instead pursue a line of argument closely related to the domestic developments
outlined above.
In the 1960s the late Norwegian scholar Stein Rokkan described the political
system of his country as bipolar. On the one hand, as in other pluralist democra-
cies, power and goods were distributed through the "numerical channel," by party
politics, elections, and parliamentary politics. On the other hand, politics in Norway
was characterized by a high degree of interest organization. All important interests
had an organization of their own. Initially they acted as pressure groups trying to
influence political actors by means of "the numerical channel." Parallel to this,
however, they gradually developed a "corporate channel" for interest promotion and
realization: exclusive rights to negotiate on behalf of certain interests, representa-
tion in public bodies, and participation in the implementation of public politics
(Rokkan, 1966).
This picture of the political system holds good, perhaps even better, for Sweden.
It was recently confirmed once again in a book called The Corporate State (Rothstein,
1992).6 But there are signs that old corporate arrangements and networks are
moldering. An extensive research project on the power structure of Sweden, now
completed, amply demonstrates the fragmentation and complexity of the present
patterns of influence.7
One of the new channels of influence, I will maintain, is the judicial one. Court
litigation on violations of rights and freedoms is usually depicted as a matter of
individuals fighting for their rights against an insensitive and inflexible state. There
are indeed cases of that kind. But there are also indications that it is organized

interests, frustrated by the ineffectiveness of the traditional pressure and negotia-

tion modes of influencing public policies, that are probing a new political strategy.
In the most conspicuous cases, the Sporrong-Lonnroth litigation at Strasbourg,
where the Court found against Sweden for violation of the propery rights clause of
the First Protocol, the real plaintiffs behind the scenes were the organized Swedish
building and housing interests. Their organization had in fact chosen the case,
convinced the owners to proceed, picked the lawyers, and financed the process
(Brunfelter, head of the action, in Sundberg, 1985). In the property rights case
resulting in the first exception of an Act of Parliament, the plaintiff apparently
made use of legal counsel provided by the Federation of Swedish Farmers. Finally,
a recent tax case highlighted by the media seems to have been directed by organized
business interests (the Alvgard case).
The same phenomenon can in fact be found in the social security sector. Here
the Social Democrats themselves have made this possible by using the legal
technique of codifying general aims and objectives, giving them the form of positive
individual rights: the right to health care, the right to a decent dwelling, etc. In
hard economic times this turns out to be symbolic politics. But the rights talk
implies that you can get your fair share by complaining or, in the last resort, by
court litigation. The organization of the mentally retarded, for instance, has
traveled this court route in order to promote the right, established in law, to a
dwelling for this group of people. In case after case, administrative courts have
convicted local public authorities for their failure, in part due to the shortage of
dwellings, to comply with the law.
In conclusion, then, it may be the case that "the corporate state" is moldering,
but the organized interests are not. They have found new ways of doing politics and
promoting their interests. One of these is the court option, or the American way:
if you cannot win by negotiation or pressure group politics, sue them!
Notes
1. But the present fundamental laws are not the same. The Riksdag Act is nowadaysordinary
law, although parts of it have been incorporated in the Instrument of Government, and
in 1991 a new fundamental law was promulgated: the Freedom of Expression Act.
2. The Law Council is more of a public institution. Its dicta are public documents, regularly
appended to the bills and commented on by the government. The reports (avis) of the
Conseild'Etatare exclusively meant for the cabinet or the minister; the minister can keep
the opinion of the Conseilsecret if he so prefers.
3. The situation of Sweden was much like that in France during the Third Republic, cf. Duez,
1929;Joseph Barthelemy and Duez, 1933: 219-227; Beardsley, 1975.
4. The proponents of the existence of judicial review of legislation had difficulties in finding
cases establishing the practice. At last, in 1964, they got a Supreme Courtjudgment where
the Court decided on the conformity of an ordinary law with the Instrument of
Government. The Court ruled, however, that the law was not contrary to the fundamen-
tal law (NJA, 1964: 471; cf. Petren, 1966: 432).
5. The head of the Commission has strengthened this conjecture by asserting that the
obvious-and-apparentclause will not apply to the Convention (Petri, in Sterzel, 1993: 52).
I think he is wrong, however. But he did not argue his case.
6. There are heaps of research on this theme; among those in English, for example, see:
Ruin, 1974; Rothstein, 1987, 1988; Heclo and Madsen, 1987.
7. The project, headed by Olof Petersson, has produced a great number of books, articles,
and papers. The concluding report is sou, 1990: 44, where references to specific reports
can be found. For a short summary in English, see Petersson, 1991.

BARRY
HOLMSTROM 163
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Abbreviations used in the text:
BoU Standing Riksdag Committee on Housing Reports
Dir. Government Directives to Investigatory Commissions
FK Upper House Debates
KU Standing Committee on the Constitution, Reports
Mot. Proposals from members of the Riksdag
NJA Publication of Supreme Court Judgments
Prop. Government Bill
RD Riksdag debates, unicameral period
R&D Review, published by the Riksdag
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Biographical Note
BARRYHOLMSTROM is Associate Professor of Political Science at the Department of
Government, Uppsala University. He has published books and articles on Swedish
foreign policy, and on agricultural, land, and planning policy. ADDRESS:Department
of Government, Uppsala University, Box 514, S-751 20 Uppsala, Sweden.


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