3 The Legal Complex in Struggles for Political Liberalism in Sweden

What role have judges and lawyers played in the expansion of political liberalism in Sweden? The research program on the legal complex has sought to capture how lawyers and judges, and the broader legal profession, sometimes emerge as a key collective actor in struggles for political liberalism, defined in terms of a constrained government, basic civil liberties, and an independent civil society (Karpik and Halliday 2011). The causal role of lawyers and judges, acting as self-appointed defenders of liberal rights and the rule of law, has been documented in comparative case studies of political lawyering in Europe and North America (Halliday and Karpik 1998), Latin America, Asia, and the Middle East (Halliday, Karpik, and Feeley 2007) and the British post-colonial states (Halliday, Karpik, and Feeley 2012).

Within this research program, Sweden, like the other Nordic states, may seem to pose an anomaly, since legal professions have rarely taken that public role of using law to defend liberty. Traditionally, jurists have played a different role in the Swedish legal-constitutional order than in the continental civil law systems or the Anglo-Saxon common law systems that offered the starting point for the legal complex research program. Swedish jurists have been seen as, first and foremost, civil servants in the service of the state or as social engineers operating the facts of law, rather than as an autonomous profession with an interest in constraining governmental power or defending justice. However, as I shall argue in this chapter, at some formative moments in Swedish political and legal history of the past two centuries, legal professionals acting in concert have played important political roles—sometimes expanding political liberalism, sometimes contracting it.

My focus will be on both événements, i.e., key historical moments when particular actors have mobilized on a circumscribed issue, and the longue durée. Specifically, I focus on (1) the constitutional revolution in 1809, where liberals ended Gustavian autocracy; (2) the Law Commission and the emergence of the liberal Rechtsstaat in the nineteenth century; (3) the fate of political liberalism after the breakthrough of democracy and the welfare state; (4) the protracted struggle over rights in the constitutional reforms of the 1970s; and (5) the slow return to political liberalism since the 1980s.

The legal complex research program has shown legal professions to use two distinct repertoires of action in mobilizing for political liberalism: To use courts to get issues on the agenda; or to rise as spokespersons for publics. However, in the Swedish case, a different action repertoire has been, I shall argue, more central. Jurists have played an important role in the numerous governmental committees preparing new legislation (Modéer 2011; Zetterberg 2011) and serving in the ministry of justice as a legal expert has been an integral career step for judges. Moreover, certain institutionalized legal actors—e.g., courts, prosecutorial offices, ombudsmen, law faculties, or professional organizations—are regular consultative bodies submitting statements of opinion in public hearing rounds on proposed legislation. Early on, the governmental committee apparatus (kommittéväsendet) also provided a public sphere, since proposals and hearing responses were printed, publicly available, and often debated in the press and parliament. The output of the committee procedure also forms part of the travaux préparatoires that are an important source of law in Sweden. On the other hand, the participation of judges in the committee apparatus may also serve to compromise their independence, since, complicit in the law-making process, they become reluctant “to criticise relevant legislation in the process of a judicial review” (Nergelius and Zimmermann 2012: 217).

Throughout the nineteenth century, a series of struggles and successive reforms, occasionally pushed back by conservative forces, expanded political liberalism, establishing constraints on government in the form of a new constitution introducing separation of powers between the king and the parliament, a cabinet government, an increasingly independent judiciary, and a bicameral parliament; basic civil liberties, including press freedom, religious freedom, economic freedom, and the emancipation of women; and, as both cause and effect of these other reforms, a flourishing civil society. This section discusses, first, the constitutional revolution of 1809 and, second, the Law Commission and the breakthrough of liberalism in the mid-1800s.

The revolution of 1809, replacing absolutism with a constitutional framework based on separation of powers and power-sharing, established the institutional framework that set the terms for subsequent struggles over political liberalism and the conflicts between king and parliament and between conservatives and progressives that would dominate much of the ensuing century.

After a devastating defeat in the Finnish War, Sweden lost Finland, which had been a fully integrated part of the kingdom for five hundred years, to Russia. In March 1809, Count Georg Adlersparre, a major-general commanding the western army, sent his troops marching on Stockholm. As a publicist, Adlersparre had previously propagated enlightenment ideas, and in his revolutionary proclamation, he now declared that war and autocracy had brought the country to ruins (Brusewitz 1918; Norberg 1998). Concurrently, co-conspiring officers in Stockholm arrested King Gustav IV Adolf to prevent him from escaping to regain control through the southern army. The revolutionaries formed a provisional government under the ousted king’s elderly uncle, Duke Karl, who failed to halt Adlersparre. Entering the capital as a hero, Adlersparre managed to outmaneuver conservative ministers, took a seat in the government himself and maintained control of his forces and the capital as a de facto dictator.

However, Adlersparre soon split with other leading coup plotters on how to carry forth the revolution and was eventually marginalized (Brusewitz 1918). Adlersparre wished to see the Duke-Regent Karl proclaimed as king, but other leading revolutionaries insisted, successfully, that parliament first had to adopt a new constitution. The provisional government appointed two short-lived committees to draft a new constitution (Carlsson 1990: 15ff), in which Anders af Håkansson came to play a central role. Håkansson had a background as a judge and a politician and, back in 1789, he had helped to strengthen the king’s autocratic powers vis-à-vis the nobility (Jägerskiöld 1971), so many revolutionaries rejected his draft as out of tune with the liberal spirit of the revolution. Yet Sweden desperately needed a new constitution and a new monarch, if nothing else because Russia refused to negotiate a peace treaty until Sweden again had a legitimate government. Thus, the provisional government assembled the Four Estates to a riksdag (parliament) for the first time since 1800.

Settling the procedural issue at the 1809 riksdag, liberal reformists insisted, against the provisional government, that parliament must adopt a constitution before electing a new monarch, rather than the other way around. A few days later, parliament appointed a constitutional committee, the first of its kind in Swedish history, with six representatives from the nobility and three from each of the other Estates, to draft a new constitution—a task it completed in only two weeks. Little is known about the committee’s internal work, as it did not keep a protocol, but it seems to have been based on Håkansson’s draft and two critical commentaries on it (Carlsson 1990: 17f). After debate and adoption by the four Estates, the new Instrument of Government (Regeringsformen, RF) entered into force on June 6, 1809.

The process of drafting, adopting, and implementing a new constitution intensified the struggle between, on the one hand, reformers and, on the other, reactionaries, who sought to restore the Gustavian lineage and constitution, and radical groups inspired by the French revolution. However, on the constitutional committee the so-called liberal party held a majority. The resulting Instrument of Government was, in many respects, a victory for the liberal constitutionalists (although its liberalism has been subject of some academic debate). It introduced a mixture of separation of powers and power-sharing between the king and the Four Estates. The RF stipulated that “the King alone is entitled to rule the Kingdom” and to appoint a council of nine ministers (Carlsson 1990: 20). The king was to make law together with the Riksdag, and the Riksdag held the right to levy taxes and control the state’s financial and monetary agencies, thus restricting the king’s control of the state budget. Furthermore, even though the Riksdag had no say in the appointment of ministers, it could hold them to account for the advice they gave the king (Möller 2011: 27).

However, the RF gave no prominent role to the judiciary. Although the judicial branch was assured a degree of independence (courts were autonomous, and justices could only be removed through impeachment and needed a permit to occupy any other office), the RF did not mandate the judiciary to balance the legislature and executive through, for example, constitutional review. It saw courts as part of, rather than as checking and monitoring, the executive and the bureaucracy—indeed, the king would chair the Supreme Court. Furthermore, the RF had no bill of rights in a modern sense, although it contained some provisions on the king’s responsibility to prevent injustice and promote justice, the rule of law, personal liberty and privacy, religious freedom, and so on (§16), provisions that citizens should enjoy equality before the law, and a ban on ad hoc courts (Wiklund 2008: 167). Moreover, the constitution also introduced the ombudsman institution (§96) as a supervisory agency under the Riksdag to monitor the legality of the exercise of governmental and judicial authority, an office to be held by “a man known for his legal knowledge and excellent probity.”

The RF also re-established press freedom and freedom of information. Effected by proto-liberals such as clergyman Anders Chydenius at the 1766 Riksdag, Sweden’s Press Freedom Act—the first of its kind in the world—had been suspended under Gustavian autocracy. Already in April 1809, the provisional government lifted restrictions on the press, unleashing a wave of pamphlets and articles to debate the constitutional reforms, and appointed a committee to propose a new press freedom act. The RF enshrined press freedom in the constitution (§86), prohibited proactive censorship, and recognized the principle of legality in matters of press freedom, authorizing courts, not administrative organs, to determine its limits (Hirschfeldt 2009: 399).

While on balance the new RF implied a great improvement in terms of liberal constitutionalism, the liberal reformists failed to carry through their agenda on some issues, most notably their plans to abolish the Estates’ privileges, to introduce economic freedom, and to reform national representation. When the Estates were to ratify the constitution, the peasantry filed reservations against a paragraph affirming noble privilege, and only after partial concessions and hard pressure from the other higher Estates, united across party divisions, did their speaker sign the constitution (Wibling 1954: Ch. 3).

Partly, the failure seems to have resulted from a counter-offensive by the opposition, which sought to delay the new constitution and also plotted a counter-coup late in 1809. Seeking to build a broader oppositional coalition, the leaders of the Gustavian opposition, Jacob Gustaf de la Gardie and Eric Ruuth, two landed aristocrats and high-ranking military officers, proposed a complete revision of all basic laws, a representation reform to include for example rural industrialists (who were excluded from the urban bourgeoisie), and a voluntary renouncement of noble privilege (Gidlöf 1998). In 1810, the constitutional committee proposed to abolish the Four Estates and replace them with a bicameral parliament and, in order to complete the separation of powers, the king would have only a suspensive veto on legislation (Norberg 1998, 64). The Four Estates adopted the proposal, yet never implemented it, and it was rejected at the 1815 Riksdag; it would take another half-century to achieve representation reform.

Alongside the new constitution, Sweden also needed a new monarch, and parliament eventually elected Jean Baptiste Bernadotte, a French officer who had made a remarkable career in Napoleon’s army, who ruled as crown prince from 1812 and was crowned as King Karl XIV Johan in 1817. Because of his immense popularity, he managed to outstep the constitutional constraints on the executive, and his authoritarian rule effectively countervailed the power-restraining intentions behind the 1809 constitution. In 1812, one of his first decrees curtailed press freedom by giving the government a prerogative to stop the publication of periodicals that were deemed to offend public order or good taste; henceforth, the publishing of newspapers required a permit from the Royal Court Chancellor (Norberg 1998; Wichman 1971). Karl Johan’s reign became known as the “era of ruling alone”—an allusion to the opening paragraph of the RF, which had actually been intended to constitutionally regulate the king’s executive powers, balanced by the Riksdag (Möller 2011: 27). However, the king met growing liberal opposition from the 1820s onward. Hence, with the constitution of 1809, Sweden had established the constitutional fundament for subsequent reforms toward political liberalism. It also anticipated the political conflicts that would dominate much of the ensuing century, between king and parliament, between conservative and progressive forces.

Do the agents pushing for liberal constitutional reform in 1809 represent a legal complex in action? One group of actors at the 1809 Riksdag had some form of legal training, typically having obtained a lower civil servant degree (kansliexamen), before embarking on a civil servant career, which could include serving as a court clerk. This group includes members of the constitutional committee such as its chair Lars August Mannerheim, Gudmund Jöran Adlerbeth, and Axel Gabriel Silverstolpe.

Some were legal professionals in a stricter sense. For instance, Hans Järta, who participated in the conspiracy against the king and then served as secretary of the constitutional committee, had been a civil servant and member of Svea Court of Appeals in the 1790s, before starting a law practice in Stockholm in 1800 (Landberg 1973). Similarly, Anders af Håkansson, whose draft constitution the liberals rejected, had obtained a law degree at the age of 17 and then served as a district judge; devoted to the kingship, he also had served as a government official and quasi minister of finance during Gustav III’s reign (O. Jägerskiöld 1971). Likewise, Gabriel Poppius, who declined to serve on the constitutional committee but who wrote an essential memorandum that influenced the RF, had pursued a judicial career and, once appointed Supreme Court Justice in 1809, he helped strengthen the judicial preview function prescribed by the new constitution (Grage 2016).

Other key agents had different professional backgrounds. Some central proponents of political liberalism were militaries—notably Adlersparre, but also Jacob Cederström, whose home in Stockholm became a hub for the conspiracy against the king and who became a vital spokesperson for the liberal party at the 1809 Riksdag—while others were clerics or academics. And although few of them were on the highest rungs of aristocracy, almost all of the central actors in 1809 belonged to the nobility, which had seen its influence shrink under Gustavian autocracy, compared to the so-called Era of Liberty (1718–1772), a period of parliamentary rule that had reduced the king’s constitutional role to a literal rubber stamp.

However, more than professional ethos, social rank, or personal networks, a form of liberalism seems to have been the primary motive for the reformists (Norberg 1998: 56ff). The “men of 1809,” as they have later become known, were well read in political philosophy and well acquainted with the political developments in the surrounding world. They had personally experienced the increasingly arbitrary, incompetent, and oppressive rule of the king and their opposition had come at a price. Järta and Adlersparre, for instance, already led the nobility opposition at the Riksdag in 1800 (where Järta in protest renounced his nobility) but were forced to retreat from political life in the following decade (Brusewitz 1918; Landberg 1973).

In their concerted action for political liberalism, they could draw on networks that had been established long before the revolution. Many liberals had been part of the so-called Junta in the 1790s, a political and literary society in Uppsala formed around Professor Benjamin Höjer, a Kantian philosopher, and Gustaf Abraham Silverstolpe, the publisher of an influential oppositional journal, who also participated at the 1809 Riksdag (Norberg 1998: 53ff). The Junta circle also partially overlapped with the contributors to Läsning i blandade ämnen, a periodical published by Adlersparre from 1795 to 1801 that became a mouthpiece for Enlightenment ideas, economic reform, and social issues (Norberg 1998: 56ff).

The reformists were inspired by Enlightenment ideas, had been influenced by leading philosophers such as Voltaire, Montesquieu, Rousseau, Kant, Hume, and Adam Smith, and called for republican civism, constitutionalism and a balanced system of government, rule of law and equality before the law, economic freedom, and abolition of privilege. Many of them regarded England, rather than revolutionary France or the United States, as the model of a free society with a balanced political system. Some had first-hand experience of the political and constitutional revolutions elsewhere in Europe. For instance, Adolph Mörner, who had studied Kant and Montesquieu at Uppsala, witnessed, as a diplomat to France in 1795, the debates in the constitutional convention and was much impressed by Abbé Sieyès’ ideas about a strong executive power controlled by popular representation (Jägerskiöld 1987).

Yet law, apparently, was both the means and the end for their struggle, putting an end to the era of Gustavian autocracy. Not only did they craft a constitution that placed constraints on the executive, entrenched certain basic liberal rights in the constitution, such as press freedom, and thereby also creating a potential space for public debate and civil society; they also initiated a project of using law to reform society in a liberal direction, which would unfold, in fits and starts, throughout the rest of the century.

Having successfully given Sweden a new constitution, the Estates at the revolutionary Riksdag in 1809–1810 noted the deplorable state of other laws and regulations, and decided to appoint a commission tasked with simplifying and improving legislation (Wieselgren 1895: 334; Warburg 1905: 37) with a view to replacing the Civil Code of 1734. They also mandated the commission to publish its proposals in order to allow the public to comment, and to take those comments into account when drafting legislation. Originally, the commission was supposed to deliver a proposal at the next ordinary Riksdag, yet the comprehensive law revision would turn out to take more than a century without ever being completed.

In 1811, the mandate of the commission was defined by a preparatory committee, which included leading revolutionaries from 1809 such as Gabriel Poppius, who participated in the ousting of the king in 1809 and was later appointed justice on the Supreme Court; Hans Järta, now secretary of state in the trade and finance ministry, and Mannerheim, Justice Ombudsman (Warburg 1905: 38). The committee suggested the commission focused on reviewing the general civil and criminal code, finding the criminal and penal code in particular need of revision in order to achieve humane forms of punishment serving the improvement of the criminal (Wieselgren 1895: 335). The committee assumed that the proposal, after a hearing round, could be adopted at the 1815 Riksdag. Based on the preparatory committee’s proposal, the government appointed a Law Commission, composed of twelve unsalaried supervisory members (including senior judges, the justice chancellor, and the justice ombudsman) and five working members: Uppsala professor of law Lars Georg Rabenius, judges Magnus Flinck, Carl Petter Thörneblad, and Olof Zenius, and lawyer Pehr Staaff.

The Commission started by revising the penal code. In 1814, Rabenius presented a proposal, based on a deterrence theory, which preserved most forms of corporal punishment. Although it did not promote the rehabilitation of the criminal, Rabenius argued, corporal punishment was of a transient nature and also economical (Wieselgren 1895: 335). However, as the proposal so flagrantly contradicted the enlightenment spirit in which the commission had been formed, the majority rejected it and Rabenius resigned, along with Flinck and Thörneblad. Olof Zenius, the key opponent of Rabenius’ proposal, persuaded the young judge Johan Gabriel Richert to fill one of their seats, and legal scholar Anders Erik Afzelius filled the other (Warburg 1905: 43–63).

The reformist troika of Zenius, Staaff, and Richert would come to have a decisive impact on the work of the commission, and by extension on political liberalism in Sweden. All three were profiled legal professionals: Zenius had studied law at Uppsala, served on the Svea Court of Appeals and the Board of Commerce; he declined an offer to serve on the Supreme Court, instead devoting his work to the Law Commission. Inspired by Kant, Zenius had a philosophical approach to law and corresponded with leading foreign law scholars, such as P.J.A. Feuerbach (Warburg 1905: 41ff). Staaff had obtained a civil servant degree at Uppsala and served in the administration and the judicial system, but he was also a well-reputed, skillful practicing lawyer (Tjerneld 2007). While Zenius was the leading force in the early years, Richert later assumed that role—and expanded it greatly. Having obtained a law degree in Lund at the age of 17 and subsequently a court apprenticeship at Göta Court of Appeal, Richert served as a junior judge at a district court in Västergötland, led by his father, where he made a name for himself as a spokesperson of the common people, using his judicial authority to challenge bureaucratic abuse. Authorities reacted by fining Richert for unwarranted appeals and defamation. Adlersparre, the despotic revolutionary leader, had been appointed governor of Västergötland in 1810 and used his contacts with the Justice Chancellor in Stockholm to pressure the president of the Göta Court of Appeal to reprimand Richert (Grimberg 1923: 187). However, Richert appealed to the Royal Majesty, which eventually decided to promote him to district judge. The affair only seemed to enhance Richert’s reputation as a fearless, righteous judge, and brought him to the attention of Zenius, who consulted him on the penal code and subsequently advocated his appointment to the Law Commission.

The Law Commission set to work on both the penal and civil law code. In 1815, it delivered proposals on reforms to the procedural code and on new penal facilities in order to replace corporal punishment with custodial detention. The Commission advocated correctional facilities where each prisoner’s regimen could be graded according to the severity of the crime, and where prisoners as far as possible should work in order to contribute to their support, but also to facilitate their reintegration in society (Wieselgren 1895: 337). The commission also delivered a first draft for a simplified and streamlined judicial organization in order to increase the expedience and access to justice (Warburg 1905: 72ff).

In the following years, the Commission published proposals for a new marriage code (1815), inheritance code and land code (1818), and procedural code and enforcement code (1822). The partial proposals were already causing friction with the increasingly authoritarian king Karl XIV Johan and, in 1823, Richert resigned from the commission and resumed his judgeship (Warburg 1905: 145ff). Reformists unsuccessfully sought to persuade him to return to Stockholm, nominating him for Justice Ombudsman and Supreme Court justice. Only after Zenius had declared that he too would resign from the Commission did the Prime Minister for Justice persuade Richert that the king wished him to reconsider, which Richert did (Modéer 1998).

Revising its proposals based on the commentaries received, the Commission published a Proposal for a general civil law code in 1826. Inspired by the French Code civil, the proposal was a manifesto in the spirit of Enlightenment liberalism. The Commission aimed to create a civil code oriented toward the individual citizen, abolishing intermediary corporations and their privileges, and thereby enacting equality before the law (Peterson 2001: 226). As a consequence of this liberal individualism, the commission’s proposals were radical, for instance granting men and women equal inheritance and marriage rights and granting unmarried women the right to gain their majority by the age of 25. It also suggested abolishing special courts for nobles, arguing that a “all are equal before the law [and a] court that is good enough for one, is good enough for all” (Peterson 2001: 227). However, the Royal Majesty failed to present a bill based on the proposal at the 1828 Riksdag, and conservative mobilization ensured that liberal motions to adopt it were rejected (Jacobson 1925).

Having thus completed its review of the civil law code, the Law Commission proceeded to revise the penal code. As the Royal Majesty wished to ensure maximal coherence of the laws of the two kingdoms, the Commission’s working members convened with a sibling committee in Norway. Published in 1832, the Commission’s proposal consisted of a penal code and a procedural code for criminal trials. Inspired by French and Bavarian penal codes, the commission authored its proposal in a radical liberal spirit, suggesting the abolition of corporal and shaming punishment and expatriation (Inger 2011: 297). While the commission failed to reach an agreement on also suggesting the abolition of the death penalty and using juries in criminal trials, it presented such alternative proposals in appendices (Modéer 1998). The proposal also suggested certain legal-technical innovations and to entrench the principle of legality.

Having taken into account commentaries received in the hearing round, the Law Commission presented its civil code proposal to the Estates at the 1834 Riksdag. The proposals had already been sharply criticized in the hearing rounds, and at the Riksdag the nobility and clergy, who saw the civil code proposal as a threat to their privileges, blocked the reforms (Peterson 2001). In order to thwart the proposals, Johan Ludvig Boije, an ultraconservative politician who had opposed reforming the cabinet, the Riksdag, and the legal code since the 1820s, gained support for requiring a summary of the proposals, their basic principles, and how they differed from existing law to be published before the next ordinary Riksdag (Jacobson 1925). The task was given to a so-called tableaux committee, on which Boije, however, failed to agree with the other members on the procedure, and so by 1837, it had only completed its tableau of the civil code; the tableau of the criminal code was not published until four years later, and both were sharply criticized in the liberal press for failing to consider the proposals as a whole. The conservative strategy was successful, but although the proposed codes as a whole were never enacted as law, their principles of individualism and equality before the law, and their view of the role of legislation in a modern market society, would make their mark on future major revisions of Swedish legislation (Peterson 2001: 227).

At the 1840 Riksdag, the Royal Majesty declared that the civil and criminal code proposals would only be reviewed by the next ordinary Riksdag. However, the Estates proposed a new committee to further review the proposals at a later Riksdag. Appointed in 1841, the Legal Advisory Committee (Lagberedningen) consisted of five working members: two Supreme Court justices, the Chancellor of Justice, and the Justice Ombudsman. Asked to sit on the new committee, Richert conditioned his participation on the exclusion of Johan Ludvig Boije (Jacobson 1925). The king responded by appointing Boije and not Richert, against the unanimous will of the cabinet (von Koch 1966), a decision which caused such intense opposition in the liberal press that all committee members chose to resign, much to the king’s chagrin (Jacobson 1925). However, Boije died later the same year and, in 1844, the conservative King Karl XIV Johan passed away too and was succeeded by his more liberally inclined son Oscar I, who had been tutored by Richert and had taken interest in, for example, reforming the penal system.

In 1844, the Royal Majesty appointed three new members to the Legal Advisory Committee: law professor Carl Schlyter, judge and law professor Pehr Bergfalk, and Richert. Staaff also shortly participated in the committee after 1845. The committee started by reviewing the Law Commission’s proposals for a new criminal code, presenting a proposal for a new penal code at the 1844 Riksdag. Approving of the basic principles of the proposal yet lacking time to evaluate it in total, the Estates only adopted it partially, yet rejected bills for its adoption at the following two Riksdags. After this failure to adopt a complete penal code, the government and the Estates agreed that further legislative reform had to proceed step by step, adopting statutes addressing specific parts of the criminal code at the 1853, 1856, and 1860 Riksdags. Partial reforms had already abolished corporal and shaming punishments such as the breaking wheel (1835) and brutal forms of the death penalty and stocks penalty (1841); the 1850s also saw the abolition of caning, the stool of shame (1855) and hanging (1858) (Inger 2011: 298). These gradual reforms paved the way for a bill, drafted in the ministry of justice but based on decades of work by the Law Commission and the Legal Advisory Committee, and presented to the Riksdag in 1862. Richert, by then long retired, commented on the bill in correspondence with Nils von Koch, who had also served on the Committee (von Koch 1966), but he did not live to see the new penal code come into force in 1864. Yet the many rounds of committee work, political tug-of-war and gradual reforms had made the new penal code a compromise between conservative views and the radical proposals of 1832 and 1844; in some respects, such as the extensive use of bread-and-water punishments, it actually implied harsher penalties (Inger 2011: 299).

Having reviewed the criminal code, the Legal Advisory Committee proceeded to revise the civil code. In 1847, it presented proposals for new marriage, inheritance, land, and construction codes. After some conservative members of the committee left their positions, it proceeded in 1849 to propose revised procedural, commercial, and enforcement codes, and in 1851 a bills of exchange law. After that, its work was done, though the complete overhaul of the civil code was never adopted as law.

The reform frenzy of the mid-nineteenth century was not limited to revising the legal code. The 1840s initiated a massive wave of liberal reforms that peaked in the 1860s, and which effectively transformed the corrupt and authoritarian state into a liberal Rechtsstaat, along with a free economy, a lively civil society, and a free press.

In terms of constraints on government, parliament modified the governmental structure in 1840, organizing it into departments, headed by ministers, and a cabinet council. As a result, the government became more independent vis-à-vis the king, but also in relation to parliament, which held ministers legally, if not politically, accountable, while the state bureaucracy’s autonomy from the government ministries was preserved (Möller 2011: 29). The self-rule of local municipalities was successively improved. In 1862, Prime Minister for Justice Louis De Geer initiated a municipality reform, which replaced the old parish councils with local municipalities and introduced county councils responsible for health care. These reforms strengthened local self-government, but also introduced limited censitarian suffrage (i.e., based on wealth rather than membership of the Estates) at local and regional levels.

A series of reforms helped professionalize the judiciary. In 1817, the king appointed a committee to examine the comprehensive jurisdiction that Uppsala University held over professors, their servants, and students in criminal law and more general matters of discipline and decency. In 1818, Richert joined the committee, which in its report two years later proposed the abolition of academic jurisdiction, arguing that it rested on an outdated principle of corporatism, that it was unnecessary for academic freedom and that the boundaries between academic and general courts were nearly impossible to determine (Warburg 1905: 107ff). The proposal led to a debate in the press between Richert and Erik Gustaf Geijer, professor of history at Uppsala, who through this debate established himself as a leading conservative intellectual (in 1844, he would infamously “defect” to liberalism). Mobilizing an individualist conception of the state, Richert (1822) argued that everyone who lived in the same geographical area should be subject to the same jurisdiction, whereas Geijer, for whom academic freedom also entailed jurisdiction, maintained that everyone should be judged by their peers, preserving the independent jurisdiction of each corporation (Fryxell 1861: 6:88ff; Lindberg 2014, 55f). While Richert’s proposal was not directly enacted, the university’s jurisdiction was eventually reduced and abolished in 1852.

Following this debate, a number of other special or corporative courts were abolished, such as tariff courts (1831), postal courts (1836), castle courts with jurisdiction over servants and courtiers at royal castles (1844), port courts with jurisdiction over fisheries (1852), and mining courts with comprehensive jurisdiction in the mining industry (1852). Their jurisdiction was transferred to public courts as part of the effort to modernize and simplify the judicial system. Moreover, the 1840 Riksdag changed the RF so that the Prime Minister for Justice was no longer to be a member of the Supreme Court (Inger 2011: 285), while the 1844 Riksdag abolished the requirement reserving half of the Supreme Court justice offices for nobles (Ställvik 2009: 99f), which conflicted with other provisions in the RF disregarding pedigree in appointing public officials and which had anyway been circumvented by knighting prominent jurists to make them appointable. Furthermore, in order to increase the expedience of justice, the Law Commission had long suggested simplifying the court system (Warburg 1905: 72ff), a proposal the Riksdag heeded in 1849 by abolishing one level of the court structure (the lower-level kämnärsrätt in the cities and the appellate lagmansrätt in rural areas) (Inger 2011: 283).

Finally, in 1865, De Geer managed to resolve a constitutional controversy over popular representation that had dominated more than three decades. Already during the revolution in 1809, reformists had argued that the Four Estates were an antiquated, inefficient anachronism, but the proposal for representation reform had never been enacted. In order to revitalize the reformist spirit of 1809, Richert co-authored a proposal for representation reform together with Carl Henrik Anckarsvärd in 1830 (Anckarswärd and Richert 1830). Anckarsvärd was an aristocratic officer who had served as Adlersparre’s aide-de-camp during the 1809 coup; in the 1820s, he became a reputed oppositional orator at the Riksdag debates, and his reputation only increased when the government had him charged with lese-majesty in 1823 (Grade 1918). Anckarsvärd and Richert based their proposal on the 1809 constitution and proposed a semi-bicameral system strategically modeled on the Norwegian constitution of 1814, which Karl XIV Johan, ruling over both kingdoms, had accepted, even as he resisted abolishing the Four Estates in Sweden. Their proposal did not lead to constitutional change, but it inspired several attempts at representation reform in the 1840s and sparked a political controversy that would span more than three decades. The Estates became ever less representative of the population as industrialization increased the number of people who did not belong to any of the old Estates (Möller 2011: 30). Reformists met significant resistance, however, chiefly from conservatives in the nobility appealing to tradition and cautioning against radical change. During the four days in 1864 when the nobility debated the proposal, masses gathered outside the House of Nobility, and, fearing that a veto from the nobility would spark riots, the government kept the military on guard (Möller 2011: 23).

The representation reform paved the way for further democratization, by, for example, introducing unitary elections, and the modernized parliament (now to assemble annually, rather than just every five or three years) successively strengthened its influence vis-à-vis the government (Möller 2011: 23). Parliamentarians also became more active and profiled, and began forming the first political parties. However, in the Second Chamber elections, only men aged 21 or older with an annual income of at least 800 riksdaler and who owned property of a tax value of at least 1,000 riksdaler were entitled to vote, which meant that only about 10 percent of the adult population (aged 20 or older) was enfranchised, and for the indirectly elected first chamber, graded voting rights followed even more demanding censitarian criteria. Tax-paying corporations also had voting rights.

In terms of liberal rights, the mid-nineteenth century also saw a series of struggles to abolish feudal privileges and restrictions on civic freedom, including press freedom, religious freedom, economic freedom, and emancipation of women. In 1845, parliament finally abolished the king’s prerogative to confiscate publications deemed defamatory or harmful to public safety. In 1830, Lars Johan Hierta founded Aftonbladet, an evening newspaper that both revolutionized mass media, by its quick, witty news reporting and its innovative advertisement-based business model, and relentlessly advocated liberal reform, challenged privileges, and exposed bureaucratic abuse. Soon, it became the leading national newspaper. Provoked by its defiant attitude toward the government, the Royal Court Chancellor withdrew Aftonbladet’s publishing permit for the first time in 1835. However, helped by a frontman, Hierta could obtain another permit, publishing his newspaper under a slightly different title: Det nya Aftonbladet—a way of bypassing censorship he would use a dozen times, publishing his newspaper under twenty-six different titles and generously remunerating his frontmen for their willingness to risk prosecution (Norberg 1998: 106f). The state’s attempts to stop Aftonbladet only boosted its popularity, and eventually the Royal Court Chancellor, realizing the futility of retroactive censorship, slowly ceased using his prerogative to withdraw publishing permits even before press freedom was enacted by parliament in 1844.

Another struggle concerned religious freedom. The 1726 Conventicle Statute (Konventikelplakatet) prohibited religious gatherings outside the Church of Sweden. However, from the early nineteenth century, often inspired by emigrants returning home from America, various revivalist movements gained hold, arranging independent prayer meetings led by lay preachers. Authorities met revivalism with harsh repression. For instance, when Baptists in the 1850s refused to have their children christened—a criminal offense—the state responded by coercively baptizing children and exiling Baptist leaders. Such repressive measures, however, attracted much international criticism (Harvard 2006, 79ff) and anyway did little to reassert the Church’s monopoly of faith. After several attempts, liberals in parliament succeeded in repealing Konventikelplakatet in 1858 and, two years later, citizens were granted the right to leave the Church, but only if they joined another Christian community of faith approved by the state. Some remaining restrictions on religious gatherings were removed in 1868 and non-Lutherans were allowed to occupy most public offices (1870). Even after the new regulations, however, the authorities continued to prosecute and harass illegal preachers, and by the 1873 so-called Dissenter Act, citizens who left the Church of Sweden lost some of their civic rights (Werner 2002).

Similar struggles propelled the expansion of other liberal rights. The guild system, which made it obligatory for craftsmen to belong to a guild in order to practice a craft or trade, was partially abolished by parliament in 1846. Following the abolition of the Four Estates and most of their privileges, De Geer introduced full economic freedom in 1864, meaning that anyone could establish a shop or industry without a craftsman’s certificate issued by a guild. In the spirit of the Law Commission’s emphasis on individualism and equality before the law, liberals also managed to abolish laws discriminating against women and securing an expanding array of rights for women to, for instance, pursue academic degrees and professional careers (1870, 1873), inherit on equal terms with men and administer their own property, income, and inheritance (1841, 1874, 1884). In 1858, parliament approved a motion, repeatedly filed by Lars Johan Hierta, to abolish the husband’s right to chastise his wife and servants (however, the right to chastise under-age servants remained until 1920). Through such reforms, women successively gained citizen rights on equal terms with men.

One can hardly exaggerate the importance of these liberal reforms, and their radical pace, for the advent of a modern, Weberian, uncorrupt state bureaucracy (Rothstein 2011), for the ensuing breakthrough of democracy, and for the remarkable industrialization that would make Sweden one of the wealthiest nations over the next hundred years (Bergh 2009). They were also facilitated by other reforms, such as the introduction of four-year primary school education for all children (1842), which promoted literacy in the population, and unitary postage (1855), which facilitated the circulation of newspapers, as did the construction of the state main railway system and a national telegraphy network (1856–1866). And as both cause and effect of these struggles and reforms, a vibrant civil society had formed, including trade unions, free churches, temperance societies, suffrage lodges, emerging political parties, and a free press.

During the eighteenth century, political liberalism was successively expanded in Sweden. As we have seen, legal professionals played an important role in these struggles, but to the extent that they mobilized collectively for political liberalism, their dominant repertoire of action was not to litigate in courts or to act as spokespersons for publics or the legal profession. Rather, they pursued a less visible strategy of mobilizing through committees, tasked with revising the laws.

The Law Commission and its successor committees are an important example of legal professionals mobilizing law in order to expand and defend political liberalism. It included persons from various legal occupations: Richert and Zenius were judges, Staaff a practicing lawyer, others civil servants. Some were law professors, although academics seem chiefly to have been conservative or moderate forces on the various legal commissions. As there were no sharp boundaries between different legal careers and since offices sometimes had to be combined because they were insufficiently salaried, some worked in more than one legal profession over their career. Moreover, even as they disagreed in substantive matters, they seem often to have appreciated each other as legal professionals. For instance, Carl Schlyter, who often held a minority view on the Legal Advisory Committee, as he found the radical liberal proposals insufficiently anchored in Swedish legal tradition (Modéer 1979), still acknowledged that “from a scientific point of view …, these proposals, with the therewith enclosed motives, belong to the best that our juridical literature can demonstrate” (cited in Modéer 2000), and he and Richert, who had advocated Schlyter’s appointment to the Committee, developed a deep respect for one another, in spite of their disagreements (von Koch 1966).

Outside the committee apparatus, many other key agents also had a legal background. Lars Johan Hierta, for instance, started his career as a jurist and civil servant, before he turned to politics, serving in parliament from 1828 to 1872 (Wichman 1971). His Aftonbladet provided a new, liberal public sphere, but he also started a number of successful industries. He became a central figure, coalescing the different forces pushing for liberalization, but his achievements for liberalism were brought about by means other than legal activism. Similarly, Louis de Geer, who, together with Minister of Finance Johan August Gripenstedt, unleashed a wave of liberal reforms in the 1860s, had pursued a judicial career and served as president of the Göta Court of Appeal, before King Karl XV appointed him Prime Minister for Justice in 1858 (Thermenius 1931).

But were they primarily driven by their legal profession or by their liberalism? As the chief architect behind many of the liberal reforms of the nineteenth century, Richert has been dubbed the father of liberalism in Sweden. A son of the enlightenment, he advocated an individualist political liberalism inspired by, among others, Jeremy Bentham (Norberg 1998: 81ff). He was frequently consulted by the liberal opposition in the Riksdag, but his role was chiefly that of an éminence gris, who influenced through his committee work and correspondence rather than through political action, and he declined prestigious offices. A rural commoner, he was also excluded from the Estates. Zenius, likewise, was an emancipatory liberal rooted in the French Enlightenment and Kant’s philosophy. He had already published in 1809 a pamphlet on economic freedom, in which he argued against the patriarchal conservatism of the privilege system (Peterson 2001). Nils Samuel von Koch, a senior civil servant who served on the Legal Advisory Committee and several other reform committees, had attended lectures by Tocqueville in France and cited Bentham and Mill in debates. He was also much influenced by his wife Frances Lewin, who had been born in an English whig family, and their Stockholm home became a meeting place for liberal politicians and writers such as Fredrika Bremer, Erik Gustaf Geijer, and Lars Johan Hierta (Jägerskiöld 1975). Generally, liberal reformers in the committee apparatus collaborated with like-minded groups in parliament. Thus, mobilizing law through collective action among legal professionals was only a part, if a crucial and central part, of a broader emancipatory, individualist project.

Why did the struggle for political liberalism, to the extent it involved legal professionals, take place in legislative committee work rather than in the judicial arena? A key reason seems to be that the immaturity of the judicial apparatus and the legal professions, and their dependency on the state bureaucracy, made other arenas and strategies more effective. At the start of the nineteenth century, corporatism still governed the judicial system, with numerous special courts for every corporation, and just as in the civil service, nobles had precedence in judicial appointments; thus, simplifying the court structure and abolishing special courts was an important target of liberal reformers.

Moreover, in spite of numerous attempts, legal reformers failed to reform the rules of procedure. The Law Commission had already presented a radical proposal for procedure reform in 1815, which it further specified in its proposed procedural laws for civil and criminal cases. The commission recommended replacing the inquisitorial procedure and legal sifting of evidence with an accusatorial procedure based on the principles of oral proceedings, public attendance, and free production of evidence (Warburg 1905: 221ff). Later repeated by the Legal Advisory Committee in 1839 and 1849, the proposals became stranded at the Riksdag. In the 1850s, however, courts started disregarding the procedural code to allow free sifting, a practice which the Supreme Court later surprisingly confirmed (Inger 2011: 286).

Liberal lawyers continued to demand an overhaul of the procedural code, yet faced resistance chiefly from conservatives, judges, and legal academics. In the 1880s, the New Legal Advisory Committee (Nya lagberedningen) presented a proposal for reforming the judicial system and procedure, yet parliament enacted only minor, partial revisions. Many liberal lawyers—among them Karl Staaff, who was to become parliamentarian and prime minister (and whose grandfather had served on the Law Commission)—passionately argued for more substantial reforms, inspired by the Norwegian system, and demanded that the state should provide the defendant with an attorney (Brandberg and Knutson 2006). Even lawyers at the time disagreed on whether defending criminals was an honorable job, but for Staaff, public legal aid was a matter of social justice and providing the poor with the same rights as the rich.

Likewise, law education at the universities was in “a veritable intellectual as well as organizational morass that lasted into the first decades of the nineteenth century” (Rothstein 2011, 241): Obtaining a law degree was close to a mere formality and aristocratic families enrolled their children at the universities in their early teens, hoping to hasten their entrance into a lucrative civil service career. Moreover, while university law degrees had been regulated since the mid-eighteenth century, legal education was primarily aimed at producing civil servants for the state bureaucracy, rather than legal professionals to pursue careers in an independent judiciary or private practice. In a querulous overview of legal education and research in Sweden, law professors Hans Collin and Carl Schlyter (1829) complained that the poor quality of legal research and education produced civil servants with “contempt of eruditeness and thorough cultivation” and judicial decisions that completely lacked “any deeper legal insight other than that which results from routine.”

However, reforming legal education became a contentious issue in the mid-nineteenth century. Echoing Richert’s proposals in the debate about the universities’ jurisdiction, Hierta motioned the Riksdag in 1823 to move practice-oriented faculties, including law, to Stockholm (Sandström 1998). In the coming decades, liberals would continually motion for making legal education more practically relevant and tailored to the needs of the state by moving it to the capital. In a critical response to an anonymous pamphlet calling for a reduction in the number of professorships, the abolition of lectures, and moving legal education to Stockholm, Uppsala law professor Knut Olivecrona argued in 1859 that the critics had missed that legal education had already changed: Ever since Schlyter had been appointed professor at Uppsala in 1835, the so-called historical school had superseded the stagnant natural law tradition (Sandström 1998), and, emphasizing law as a system that had evolved historically, it also offered a more scientific approach to the study of positive law (incidentally, Schlyter had built his reputation as an innovative legal historian after having been commissioned by Richert to compile overviews of medieval Swedish laws for the Law Commission [Modéer 2000]). Moreover, in Olivecrona’s view, the theoretically anchored method of legal science taught at universities was also a guarantee for the coherent, predictable application of the law, which might be endangered by replacing them with practice-oriented law schools (Sandström 1998). However, both those who proposed a practice-oriented law school in Stockholm and those who wished to preserve law education at universities seem to have agreed that the key purpose of legal education was to produce civil servants for the state bureaucracy, including the judiciary.

New regulations on legal education did little to improve its sorry state, as long as a career as judge or civil servant depended more on aristocratic pedigree and personal relationships than on merit, years of service, or academic qualifications. Only with the rapid reforms of the 1860s did the state bureaucracy turn toward a meritocratic, Weberian civil service (Rothstein 2011), and “legal education and legal science developed under strong influence from Germany” (Modéer 2003). However, nobles continued to dominate the civil service, the judiciary, and other elite professions long into the twentieth century: Where previously nobles had been privileged by formal regulations and informal connections, they now were advantaged by their better access to education (Sundell 2015: 43).

An organized bar was also non-existent for much of the nineteenth century and legal counsels often lacked legal education. While the legal code of 1734 had allowed parties to use attorneys, without any requirement for legal training, defendants in criminal cases had to conduct their own case; not until 1866 were persons prosecuted for lesser crimes allowed to use a counsel in court (Inger 2011: 287). Throughout the nineteenth century, civil servants and court clerks commonly moonlighted as legal counsels—even Richert, Staaf, and Zenius practiced law on the side while serving on the Law Commission, as did a justice ombudsman (Bomgren 1937: 166). The abolition of the guild system in the 1840s gave rise to new free professionals standing outside the old class and estates system, who, although they lacked legal training, often acted as legal counsels. By the 1870s, the situation improved somewhat, as increasing numbers of jurists opted for a career as a lawyer rather than as civil servant or judge.

Throughout the century, the underdevelopment of the lawyer profession prompted debates among policymakers on whether and how to create and regulate a professional bar (Bomgren 1937). On the one hand, reformers criticized existing restrictions on the right of the parties’ to choose freely their counsel and certain restrictions officially prohibiting higher court clerks from practicing law. Free competition, some argued, would eventually weed out apparently incompetent legal practitioners. On the other hand, reformers also sought to regulate existing legal practitioners in order to improve the judicial process. In its proposal for a new criminal code in 1832, the Law Commission radically suggested not only to grant the defendant a right to use a legal counsel, but also that the authorities should provide detainees with an attorney if they could not afford one on their own. Every court should furthermore accredit two unsalaried public attorneys. Recognizing the lack of competent lawyers, motions in parliament called for competence criteria, court accreditation, or attorneys salaried by the state in order to put pettifoggers out of business and improve the access to legal counsels in all parts of the realm.

In 1867, Olof Beckman, a district deputy judge, complained in a pamphlet addressed to the justice ombudsman about the predicament of the bar in Sweden. Beckman saw the establishment of an independent bar as essential for defending liberty, providing legal expertise to the common people, reducing the number of trials, and checking the authority of judges and the state bureaucracy:

In the whole country, one can hardly find fifty persons who deserve even the denomination of lawyer, and even fewer are those who possess the knowledge and probity to fulfil in a dignified way such an essential vocation.

(Beckman 1867: 10, author’s translation)

Yet repeated motions in parliament to enact the Law Commission’s proposals failed, chiefly because the Supreme Court opposed it, arguing that it would be difficult for every district court to ordain two competent lawyers, but also because of fears in parliament that the proposal would create a new and expensive class of civil servants (Bomgren 1937: 155ff). As part of renewed attempts to reform the procedural code, the New Legal Advisory Committee presented a report in 1884 that also proposed reforming the bar. While discussing the option to preserve the free choice of counsel, the Committee leaned toward making it mandatory for parties to use officially authorized lawyers, at least in higher courts and especially if oral proceedings were to be introduced, which required the testing of skills and knowledge and a corporation exercising professional control. The Committee argued these reforms would benefit the lawyer profession, facilitate international commerce, reduce the use of moonlighting civil servants and court clerks as counsels, and, most importantly, improve the administration of justice (Bomgren 1937: 162ff). Reviewing the proposal, the Enhanced Legal Advisory Committee (Förstärkta lagberedningen) sought to further improve the position of public lawyers by extending the monopoly of the bar in higher courts and prohibiting civil servants from acting as counsels, aiming to create an independent profession. However, these reforms had been framed as an integral part of the major overhaul of the procedural code, a project that stalled again in the final decades of the nineteenth century.

Yet while the reform proposal failed, it provided an important impetus for the creation of an organized bar. In 1885, a group of university-educated lawyers met in Stockholm to write a commentary to the New Legal Advisory Committee’s proposal (which eventually the Enhanced Committee by and large heeded). The meeting also appointed an interim board to draft the statutes of a Swedish Bar Association (Sveriges advokatsamfund), which held its constitutive meeting in March 1887 (Bomgren 1937: 169). Aiming to prohibit legal counsels that lacked legal education and to obtain a lawyer monopoly for the Bar Association, it only partially succeeded, however: Only with the new Procedural Code in 1948 did the Bar Association gain legal recognition so that only its members were allowed to use the title of attorney (advokat), but failed to obtain a monopoly (Inger 2011: 287). For several decades, the Bar Association’s membership remained small and concentrated in the major cities (Modéer 1999).

In sum, to the extent that we see legal complexes mobilizing for political liberalism in Sweden in the nineteenth century, they were striving to create the fundamental prerequisites for a rule of law state: A constitutional monarchy, a modern legal code, an independent judicial system, and professionalized legal occupations. That required concerted action in other arenas than the legal-judicial institutions they sought to create.

For all the liberal reform efforts of the nineteenth century, Sweden remained by its end one of the least democratic and most authoritarian states in Western Europe, and also a highly unequal society. The first two decades of the twentieth century saw an escalating political conflict between, on the one hand, the king and the conservative establishment, and, on the other hand, liberals and social democrats, who demanded general and equal voting rights for both men and women. Rallies, protests, strikes, and riots, sometimes met with harsh repression by the police or military, intensified the social tensions and the suffrage issue became a predominant, overarching, and uniting cause for progressive forces. Conservatives opposed suffrage reform, but sensationally conceded by extending suffrage to all men in 1907, thereby doubling the franchise. In 1917, with a war raging in Europe, food being rationed, and a series of riots and mass protests across the country causing fears of revolution, the conservative government appointed by the king was forced to resign, and Liberals and Social Democrats, who combined held a majority of seats in parliament, formed a coalition government. In 1919, finally, parliament extended the franchise to all women, who could exercise their right to vote in the 1921 election.

Hence, by 1917 democrats had finally established parliamentarism, yet the 1809 constitution, which emphasized separation of powers and that “the King alone rules the Kingdom,” was never amended to reflect this new practice, where the King had lost his key political role and the executive ruled at the mercy of the legislative branch. The Instrument of Government remained unchanged, but significant parts of it were ignored in practice. While the triumph of parliamentarism paved the way for democracy, it also served to undermine the status of the constitution in Swedish politics and society.

Sweden’s late but rapid transition to democracy (Rustow 1971) also had broader implications for political liberalism. While the movement toward expanding individual rights continued in some areas, for instance removing laws discriminating against women and introducing freedom of religion, the democratic era also saw the state extending its authority, especially through the corporatist welfare state. As the state expanded, so did the law. The dominant doctrine of Scandinavian legal realism, which served the social democratic reform project well, also cast legal professionals in new roles, as engineers operating the law as a technical fact. By the 1960s, this project of rationalist modernization and social engineering reached the constitution, with a new Instrument of Government (1974) affirming the principles of popular sovereignty and parliamentarism, while absorbing the judiciary as but a cog in the state bureaucracy.

Beyond enfranchisement, women’s groups struggled for broader emancipation. In the early decades of the century, parliament introduced new laws discriminating against women, for instance prohibiting their work in mines (1900) and at night (1909, in order to comply with a 1906 International Labour Organization convention) and prohibiting contraception (1910). On the other hand, after decades of struggle to repeal laws that barred women from academic education, certain professional careers, and offices in public administration, the so-called Competence Act of 1923 granted women equal access with men to all positions in public administration, except clerical and military positions. In the following decades, other laws were abolished that discriminated against women, enacting their status as full citizens with equal civil rights.

Reforms in the early twentieth century increased the independence of the courts. In 1909, the Supreme Administrative Court (Regeringsrätten) was created to further separate judicial and public administration (Ställvik 2009: 99). The issue had been on the agenda several times, not least after the departmental reform of the 1840s, yet parliamentarians—mostly liberal lawyers—had failed to win support for the proposed reform. However, in 1903, parliament endorsed a proposal by the constitutional committee, chaired by Hugo Blomberg, a professor of public law at Uppsala University and a key advocate of the reform, to ask the Royal Majesty to investigate the creation of a supreme administrative court, in order to relieve the ministries of the time-consuming task of hearing and deciding on administrative appeals, but also to improve predictability and legal certainty for individuals (Kuylenstierna 1959). Furthermore, the king’s right to chair the Supreme Court was abolished. Both highest courts continued to deliver their judgments in the name of the king, but were in practice more independent from the executive branch. Justices from the two supreme courts formed the Council on Legislation, taking over the judicial preview function previously served by the Supreme Court. By the 1920s, Social Democrats had already motioned to restrict the Council’s purview to purely juridical matters and the conflict would resurface in the 1940s to 1960s (Algotsson 2009). In the early twentieth century, courts also developed a practice of judicial review. By the late 1920s, the Supreme Court had established the authority to review the constitutionality of statutes and administrative ordinances, a practice which developed over the next fifty years, although it lacked support in the 1809 constitution (cf. Bindreiter 2009).

However, while liberals in the nineteenth century had sought to abolish special courts with jurisdiction over specific corporations, the rise of the democratic welfare state saw corporatism return in a different guise, and with it also specialized courts. The 1918 Water Act had already created six regional water courts. However, it was the new Labor Court, created in 1929, that would serve as model for several other courts established for special purposes, such as consumer courts, tenant courts, the Market Court (1970), and the Court of Patent Appeals (1978). In the decision-making of these courts, special interest representatives typically outnumbered professional judges.

One area of the law where the successive reform attempts of the nineteenth century had failed was the judicial procedure. In 1906, after heated debate (and a bill blocked by the first chamber two years earlier), parliament introduced the defendant’s right to a publicly financed counsel, but only for severe crimes, a restriction that was removed in 1919 (Brandberg and Knutson 2006). In 1911, the government appointed the Procedure Commission (Processkommittén), tasked with reforming the procedural code. Apart from the substantial issues, both policymakers and legal professionals would continue to disagree on whether to proceed through stepwise reforms or a major overhaul of the procedural system, and this reform attempt, too, would be marked by adversities (Mellqvist 2016: n. 1). While the Commission was chaired by a succession of three senior judges, its secretary Karl Schlyter, by then a young junior judge, would become a key agent in seeing through its proposed reforms. Schlyter, namesake of his grandfather who had served with Richert on the Legal Advisory Committee, had joined the Social Democratic Party (SDP) when he was studying law at Lund in 1906—a radical move for a young career judge (Sundell 2000). As a chief district judge in Askim 1923–1929, Schlyter would also experimentally introduce oral and concentrated proceedings and other desired reforms, arguing that he was really just resurrecting procedural regulations from the old Code of 1734 (Modéer 1999). The Commission proceeded thoroughly and conducted study visits to France, Germany, and Austria. Only in 1926 would it deliver its report suggesting the basic principles of a reformed trial procedure, but no specific legislation (Mellqvist 2016). After a hearing round and consultation of the Council on Legislation, the government presented in 1931 a bill on the basic principles for procedural reform, but no legislation, which parliament adopted. Having parliament thus agreeing on the basic principles, Karl Schlyter—who now headed the ministry of justice in the first Social Democratic government—appointed a new commission, the Procedural Law Commission (Processlagberedningen), chaired by Natanael Gärde, an experienced judge and former minister of justice, to finalize the reform. The commission presented a draft procedural act in 1938. After another review of a revised proposal by the Council on Legislation in 1941, parliament adopted the bill in the spring of 1942. Entering into force in 1948 and completing a reform project first attempted by Richert’s Law Commission in the early 1800s, the procedural reform has been called the most significant legislative project of the twentieth century. The procedural reform also necessitated reforms to the judicial organization, in part because the oral, concentrated procedure required a more decentralized system of appellate courts.

The egalitarian spirit of the democratic era also inspired reforms in criminal law. A key agent behind these reforms was Johan Thyrén, professor of criminal law at Lund University (and, like his cousin Karl Schlyter, grandson of law professor Carl Johan Schlyter). Commissioned by the government, Thyrén published Principles for a Criminal Law Reform (1910–1914), introducing a pragmatic, sociological perspective on criminal law aimed at individual prevention. Fines and imprisonment would be the normal penalties, but Thyrén also suggested a type of protective measure for criminals that posed “atypical dangers to society,” such as juvenile delinquents, chronic criminals, and alcoholics (Inger 2011: 306). Thyrén’s reformist ideas would become highly influential. He helped bring about the abolition of the death penalty in 1921 and introduced the day-fines system to Sweden, as a form of penalty that would punish rich and poor equally. Thyrén served in parliament as an independent and as minister of justice in a liberal government from 1926 to 1928. When Karl Schlyter became justice minister in the first Social Democratic government in 1932, the two cousins initiated a broad reform program, which Schlyter later radically revised. Many of the reforms would be implemented by his successor from 1936, K. G. Westman, another law professor politician (Sundell 2000).

In 1935, Schlyter introduced a law on juvenile prison, aiming to rehabilitate juvenile delinquents through professional education, with sentences without fixed terms. Realizing the ethical problems with non-fixed sentences, Schlyter nevertheless argued that the social rehabilitation of criminals required radical, unconventional methods. Under the slogan “Depopulate the prisons!” Schlyter further abolished the law on conversion of pecuniary penalties, under which persons who failed to pay their fines instead had to serve prison sentences. The law primarily affected poor people, and its abolition in 1937 helped reduce the number of fine prisoners from 11,000 in 1930 to 650 in 1940 (Sundell 2000). From 1937 to 1953, Schlyter also chaired the penal law section of the Criminal Law Commission. Together with justice minister Thorwald Bergquist, a liberal and equally passionate criminal law reformer, Schlyter was the key force behind a partial penal law reform in 1945 that abolished cell confinement, although a lack of resources would delay the implementation.

Inspired by his long-time friend, law professor, and parliamentarian Vilhelm Lundstedt, justice minister Schlyter criminalized blackmail in 1934—a reform intended to improve the situation of homosexuals, the chief target of extortionists, and ten years later, as chair of the parliamentary law committee, decriminalized homosexual acts (Sundell 2000). Schlyter also sought to reform abortion and contraception policies, and contributed to the decriminalization of fornication and adultery. An energetic reformer, Schlyter was chiefly inspired by the sociological school of criminal law and, like Thyrén, pragmatically sought to combine individual and general prevention by designing the system of sanctions with an aim of resocializing criminals into good citizens (Sundell 2000). Criminal law reform, in his view, was also a matter of broader social reform.

After the democratic breakthrough, the SDP became increasingly dominant, forming the government between 1932 and 1976 without interruption (except for the summer of 1936). While the social democratic project of expanding the welfare state has sometimes been described as based on a collectivist, corporatist ideology, it also expressed a particular Swedish ideology of “state individualism”: social democratic welfare state reform programs aimed at promoting individual autonomy (Rothstein 1998a) and liberating individuals from their dependency on any powerful body other than the state (Berggren and Trägårdh 2009). The era of the democratic welfare state also saw the emergence of a new cadre of radical legal professionals mobilizing law for political reform, but their progressive agenda was not necessarily politically liberal, even as it sometimes overlapped with liberal causes.

In the interwar years, the legal philosophy of Scandinavian legal realism (SLR) began shaping both Swedish political culture and the legal professions. Influenced by the value nihilism of Uppsala philosopher Axel Hägerström, the legal realists rejected all talk of natural rights as metaphysical nonsense, sought to restrict legal science to positive law, and viewed international law as superstition because of its lack of enforcement. Law, on this view, was “technical facts operated by jurists” (Modéer 2003: 163; on SLR, see Pihlajamaki 2004; Bjarup 2005; Strang 2009). Scandinavian legal realism also served the social democratic welfare state project: If the development of the Rechtsstaat in the late nineteenth century assigned lawyers the role of protectors of the individual against the state, the expansion of the welfare state instead saw lawyers as social engineers, supportive of the state’s expansion, and the emphasis shifted form civil, private law to public law (Modéer 2003). This also resonated with a new ideal of the civil servant as an engaged, benevolent bureaucrat, who, as a representative of the strong state, served to improve the conditions of society’s weak and poor (Ställvik 2009: 100).

Key proponents of SLR were to become prominent public figures in the mid-twentieth century. Östen Undén, who had studied law under Thyrén, became professor of civil law and international private law at Uppsala University in 1917, its rector from 1929 to 1932 and university chancellor from 1937 to 1951. He also served in government, most influentially as foreign minister (1924–1926, 1945–1962). Another key proponent of legal realism, Vilhelm Lundstedt, professor of civil law at Uppsala, had experienced a revelatory conversion in his legal philosophy during his conversations with Hägerström and came to revitalize legal philosophy in Sweden. He had joined the SDP in 1910 and represented the party in the second chamber from 1929 to 1948. A strident academic and politician, Lundstedt unsuccessfully motioned the SDP and parliament to reject international law and the League of Nations (Molin 1982) and later argued that Sweden ought to abandon neutrality and join the Western alliance.

Even as they had as their primary occupation law professor or judge, some of these elite jurists also occupied political offices as parliamentarians and ministers of government and served on government commissions. As a result, the legal sphere seems to have been characterized by close, overlapping personal networks. The jurists also featured in a new public sphere for legal debate, for instance in Svensk Juristtidning, a law journal founded in 1916 that would become a central forum for a younger generation of jurists, connecting academics, practitioners, and policymakers (Modéer 2016). Karl Schlyter served as its editor for thirty-six years, in addition to his work as a judge, lawmaker, and minister. Apparently, the leading jurists did not form a monolithic block; they interacted across political cleavages and had substantial disagreements in matters of practical policy and legal philosophy. The pragmatic reformers Thyrén and Schlyter, for instance, disputed the legal realists’ view that general prevention was paramount in criminal law (Molin 1982; Sundell 2000), while fellow social democrats and legal realists Undén and Lundstedt diverged in their views on many policy matters, such as the war-time curtailment of press freedom and Sweden’s post-war foreign policy orientation.

Increasing worries over the degeneration of the Swedish race led the ministry of social affairs to appoint a commission in 1927 to investigate “sterilization in certain cases of imbeciles, the mentally ill and epileptics.” Led by judge Gustaf Lindstedt, the commission delivered its report and proposed legislation in 1929 (Socialdepartementet 1929). Noting the lack of scientific knowledge about hereditary diseases, the commission proposed to allow sterilization only on informed and consenting individuals suffering from genetic diseases that made them dependent on social care or incapable of caring for their children. The National Board of Medicine would grant permits for sterilization. Emphasizing the individual’s right to bodily integrity vis-à-vis the societal interest of preventing imbeciles from reproducing, the commission also noted the juridical difficulties in allowing sterilization. Lindstedt argued that a doctor performing sterilization for purely social reasons would risk facing criminal charges even if the patient had consented to the operation.

In the hearing round, the medical profession harshly criticized the commission’s limited proposal (women’s organizations were not invited to comment). Informed consent, several consultive bodies argued, was a criterion impossible to fulfil and the exaggerated juridical caution and insistence on certain medical knowledge would unduly restrict the scope of action of the medical profession (Runcis 1998: 73ff). In the legal profession, the proposal stirred debate, as radical jurists charged Lindstedt with having a conservative agenda. Ragnar Bergendal, professor of criminal law at Lund, argued that modern medicine had made sterilization a safe, minor operation. Some, like law professors Nils Stjernberg and Johan Thyrén, argued that consent would be illusory in practice and argued that the law ought to allow explicitly for forcible sterilization. Karl Schlyter, by then newly appointed president of the Court of Appeal for southern Sweden, claimed that the proposal mismatched the public conception of justice and questioned the need for regulations since, in his view, sterilization of imbecile or uneducable girls, giving their informed consent, could hardly be considered a form of bodily harm; instead, he wished to grant doctors full freedom of action (Schlyter 1930; Runcis 1998: 78; Zaremba 1999: 222ff). Responding to their criticism, Lindstedt argued that it was legally and constitutionally impossible to allow sterilization for purely social reasons in the name of public interest and advocated instead social measures to prevent undesirable reproduction (Runcis 1998: 76, 79). In the end, the proposed law was never presented to parliament and Lindstedt, the lone defender of individual rights in this debate, would, in a strange twist, become a co-founder of the National Socialist Bloc later in the 1930s (Zaremba 1999: 220 n. 5).

The discourse of racial hygiene had proved insufficient to justify a flexible sterilization law, but in the early 1930s the issue would return, now framed in terms of rational public interest, but also merging with feminist demands for policies on abortion, contraception, and sex education. In 1932, the Social Democrats formed a government. Schlyter, now heading the ministry of justice, appointed law professor Bergendal to re-investigate the issue of sterilization. The law he drafted permitted sterilization of persons permanently incapable of giving their consent (Justitiedepartementet 1933). Compared to the 1929 proposal, the proposal expanded the grounds for sterilization (Runcis 1998: 85): As valid reasons for sterilization, Bergendal included both “social indication,” that is, on persons incapable of caring for their children due to mental illness, and “eugenic indication,” based on the risk of transferring hereditary mental illness to the children. The National Board of Medicine would make decisions on sterilization of the insane (sinnessjuka), whereas for “imbeciles” (sinnesslöa) it sufficed with a consensus decision by two doctors. In the hearing round, no legal objections were raised, but the medical profession still requested more comprehensive regulation. Specifically, several consultative bodies also wished to see regulation of sterilization of legally capable persons to restrict the discretion of doctors and prevent the risk that doctors would sterilize genetically valuable persons or prescribe it as a permanent method of contraception (Runcis 1998: 87). The Second Chamber adopted the bill without much debate, while in the First Chamber, a few conservative jurists criticized the proposal, among them Hjalmar Hammarskjöld, a judge, law professor, and former prime minister, who called for stricter control of sterilization operations in order to prevent rights violations. Adopting the bill in 1934, parliament also requested a new inquiry commission on sterilization.

Two years later, the new commission, consisting of a zoologist, a botanist, a chief physician, and an associate judge, proposed to allow for sterilization of persons capable of consenting to it, to widen the grounds for sterilization, and to place the decision-making authority with a central board. The commission considered the legal aspects to have been settled by the previous commissions. While the medical profession was largely positive about the new proposal, it also raised some concerns on how to implement the law in practice. In 1940, the government presented a bill that softened restrictions on sterilization of the legally incapable, introduced a “medical indication,” whereby women could be sterilized because of physical defects, and expanded the “eugenic indication” to include hereditary physical defects and the “social indication” to include asocial lifestyles, thus enlarging grounds for sterilization far beyond the medical sphere (Runcis 1998: 159). The bill triggered a debate in parliament, where a group of social democrats, arguing in terms of pragmatism, rationality, and public interest, were concerned that the centralized decision-making procedure would harm the effectiveness of the sterilization law, and some wished to expand forcible sterilization. Explicit racism was voiced by Minister of Justice K. G. Westman of the Agrarian Party, greeting the law as a step toward “sanitizing the Swedish race” (Runcis 1998: 167).

Liberals and conservatives rather emphasized hereditary hygiene, which implied an evidence-based limitation on the practice of sterilization, and individual rights. The sharpest critique, however, came from Georg Branting, a lawyer and social democrat, who argued that the consent required for sterilization required extra precaution since the persons subject to the law were in a position of dependency vis-à-vis the authorities. Furthermore, he found the expanded social indication to be based on a reactionary idea, and argued that instead of advocating sterilization of vulnerable persons, social democrats ought to improve the social circumstances for parents and children (Runcis 1998: 165f). After this debate, parliament adopted the bill with an expanded social indication.

The 1941 law gave doctors considerable discretion in recommending sterilization and the indications proved quite arbitrary in practice, for instance sterilizing women because of promiscuity. While the law formally required consent (except for those incapable of giving it), the requirement turned out to be illusory in practice: Authorities could obtain consent by conditioning social support, custody of children, or permission to marry (for those under the age of 25) on agreeing to undergo sterilization, and sometimes medical staff did not inform patients prior to the operation. The practice of sterilization culminated in the 1940s, yet continued until 1975.¹ From 1935 to 1975, a total of 62,888 persons were sterilized, of whom 93 percent were women. In the region of 27,000 persons were subject to direct or indirect coercion (Socialdepartementet 2000). The sterilization debate indicates, on the one hand, a divide between certain liberal-conservative jurists, who insisted on the rule of law and individual rights, and radical jurists, who saw public interest as paramount. On the other hand, it also shows how the radical reformers actively sought to bypass a conservative state bureaucracy dominated by jurists, to instead rely on other professions in expanding the welfare state (Rothstein 1998b).

During World War II, the inclination to prioritize public interest over individual rights would also lead some leading jurists to support restrictions on press freedom and political freedoms. Hitler’s Machtübernahme in 1933 had already put Swedish press freedom to the test. Initially, government—the first all-social democratic cabinet, led by Per Albin Hansson, himself a former journalist—dismissed demands by German authorities to act against critical press coverage, and acting foreign minister Östen Undén explained in an interview that his ministry gave a standard response to such complaints: Swedish newspapers were independent of the government. However, later in 1933, justice minister Karl Schlyter ordered the Chancellor of Justice to prosecute leftist newspapers for having insulted Hermann Göring, which led to prison sentences for the editors (Vallinder 2000: 223). Government took no further legal action until 1939, but informally appealed to some editors to soften their criticism of foreign powers.

However, the national unity government formed after the outbreak of the war, which included all political parties except the Communists, increasingly curtailed press freedom, through legislation, confiscation without trial of periodicals, and prosecution under the Press Freedom Act. The 1809 constitution gave little guidance, as it included no regulations for a state of exception. In December 1939, justice minister Karl Gustaf Westman—a professor of legal history and a leading figure in the Agrarian party—appointed a committee led by Ragnar Bergendal to propose changes to the Press Freedom Act, chiefly to introduce various forms of censorship (Justitiedepartementet 1940). In 1940, parliament adopted the resulting bill and also an ordinance granting authorities the right to prohibit the circulation by post or public transport of a periodical if a jury had found it to violate the Press Freedom Act (e.g., by endangering national security). Although parliament adopted the bill in 1940 and confirmed the constitutional changes in 1941, it never implemented the Censorship Act. However, the government would use the so-called prohibition of transportation ordinance in order to stop the circulation of six periodicals, three of which were Communist and one a Nazi magazine (Vallinder 2000: 245).

Besides these legislative measures, government used prosecution and confiscation as a two-pronged strategy for curtailing press freedom. In November 1939, the Swedish minister to Berlin Arvid Richert (incidentally, great-great-grandson of the liberal reformer) urged Westman to order the prosecution of Trots allt, an anti-Nazi weekly, for an editorial titled ‘Hitler’s hell machine’. This was the start and the pattern of a campaign that would continue until May 1943; initially, it targeted chiefly democratic or Communist publications but eventually achieved some balance by increasingly prosecuting pro-Nazi publications. However, prosecution was a risky strategy since the Press Freedom Act of 1815 stipulated trial by jury, and government could never be sure to win the case. While eight out of ten trials against periodicals in 1939 led to conviction, the conviction rate dropped to 50 percent in the thirty-eight trials conducted between 1940 and 1943; consequently, the government became less inclined to order prosecutions after 1940 (Vallinder 2000: 248, 303). Moreover, the procedure was biased against the state, and not only because conviction required a qualified majority in the jury: While prosecutors were often unenthusiastic about carrying out orders from the justice ministry, defense attorneys were both competent and passionate for their cause and sometimes managed to recruit prominent public intellectuals to the jury (Vallinder 2000: 307).

Instead, justice minister Westman turned to confiscation. The Press Freedom Act of 1815 contained a paragraph (3:9) allowing government to confiscate without trial publications that, although not libelous, could cause “misunderstandings with foreign powers” (Hirschfeldt 2009, 408). The paragraph had never been used without a trial and by the interwar years an authoritative constitutional lawyer considered it to contradict the fundamental principles of the Press Freedom Act. Yet Westman innovatively resuscitated the paragraph and thereby gained an effective means for stopping publications, yet bypassing, as he put it, “the unpredictable and in foreign policy matters injudicious jury” (Vallinder 2000: 237f). From 1939 to 1943, the government would confiscate a total of thirty-seven books or pamphlets and 280 periodicals, including both extremist (Communist or, to lesser extent, pro-Nazi) and democratic publications. In March 1942, Westman ordered the confiscation of nearly twenty newspapers, which, in a coordinated effort, had published reports about atrocities in prisons and concentration camps in Norway (Vallinder 2000: 246).

Although the wartime cabinet represented all democratic political parties, its repressive press policies met harsh criticism in parliament (Hirschfeldt 2009: 409) and also in the media. Leading jurists seem to have been split on the issue. While Östen Undén—by this time university chancellor and member of the second chamber—criticized the restrictions on press freedom in a radio debate with Westman (Vallinder 2000: 227), his fellow legal realist Vilhelm Lundstedt, who sat on parliament’s legal committee, defended the transportation prohibition, which was primarily aimed at Communist newspapers: A regulation that served to save the nation from ruin, he claimed, could never violate the constitution (Molin 1982).

By 1943, however, the situation had shifted. After Stalingrad, Germany’s pressure on Sweden eased, and Thorwald Bergquist, a Liberal, succeeded Westman as justice minister. A second chamber election was coming up in 1944; nearly everyone agreed that press freedom should be restored after the war, which required parliament to adopt constitutional changes both before and after the election (Vallinder 2000: 312f). But the unity government was split: Liberals and most Social Democrats wished to abolish the press freedom restrictions quickly, but were outnumbered by Conservatives and Agrarians. In order to resolve the deadlock, Minister of Justice Bergquist proposed a parliamentary commission to comprehensively revise the Press Freedom Act (Vallinder 2000: 314). The resulting Press Freedom Act of 1949 abolished the wartime restrictions, preserved the special procedure for press freedom trials, including the jury, and introduced constitutional protection of rights for persons providing information to journalists.

Aside from press freedom, the post-war era saw a significant improvement in freedom of religion. In 1951, parliament granted citizens the right to leave the Church of Sweden without entering another community of faith and abolished the prohibition against Catholic monasteries (Werner 2002). Since the 1880s, several parliamentary motions had demanded liberalization of the dissenter law. After the democratic breakthrough, two subsequent committees, appointed by Liberal and Social Democratic governments, suggested liberalization, but their proposals did not result in any bills, partly because the Social Democrats shifted from radical anti-clericalism to regarding the state church as an important guarantor of a democratic system. Moreover, many liberals and progressives considered the Catholic Church a transnational organization seeking political power and saw monastic orders as violating individual freedom of religion (Werner 2002). However, ratification of the European Convention on Human Rights (ECHR) provided a decisive reason to remove restrictions on freedom of religion.

If the legal profession had earlier provided the state with unique expertise on how to govern a modern, impersonal mass society, facilitating capitalist industrial transformation, the expansion of the welfare state diminished its relative importance for the state machinery. Up until 1964, however, a law degree was a formal requirement for employment in ministries and higher echelons of the state bureaucracy, and still by the 1970s, a majority of director-generals were law graduates (Holmström 1995: 346f). Moreover, senior civil servants and judges formed a substantial part of the legislature: 40 percent of first chamber deputies and 10–15 percent of second chamber deputies held law degrees, while 10 and 6–8 percent, respectively, were judges, but private lawyers were unusual (Holmström 1995: 347).

From 1950 to 1987, the number of legal professionals increased by a factor of 2.5, but other academic professions grew much faster, for example, engineers (x 10), social workers (x 7), and psychologists (x 23) (Bertilsson 1989). While the proportion of the legal profession employed in private enterprise increased from 13 to 21 percent in the same period, the majority—61 percent—remained employed in the public sector. Compared to Norway and Denmark, Sweden had (and perhaps still has) a different balance between the bar and the bench: 17 percent of Swedish jurists were practicing lawyers (1987), compared to 34 percent in Denmark (1986) and 30 percent in Norway (1970), while 16 percent of jurists in Sweden were employed in the judicial or prosecutorial system, but only 5 percent in Denmark (1986) and 8 percent in Norway (1970). This difference might be due to the fact that Denmark and Norway had more small businesses, which consult private law firms, whereas state-led industrial rationalization in Sweden favored major corporations, which have internal legal departments, thereby reducing the demand for private law firms (Bertilsson 1989).

Court and procedural reforms undermined the autonomy of the bench, by, for example, strengthening the role of lay judges (Ställvik 2009: 102). Jurists also lost ground to other professions in the numerous committees preparing law reforms, especially in a series of committees on constitutional reform from 1941 onward, where instead political scientists assumed the expertise role (Modéer 2011: 748). On the other hand, the expansion of other professions in the welfare state and the relative decline of jurists may have helped define the domains of the legal professions: Rather than a generalist bureaucrat in the state administration, the jurist became a specialist on the interpretation, implementation, and application of the law.

After the democratic breakthrough, political life had turned to consolidating democracy and to substantive political issues (Möller 2011: 103). Eventually, however, and increasingly after World War II, calls for reform pointed to the glaring discrepancies between the 1809 Instrument of Government and the way in which Sweden was actually governed. The RF still proscribed separation of powers between king and parliament, which had in practice been superseded by parliamentarism, now a core principle of Swedish democracy, which lacked constitutional regulation. Opponents of constitutional reform, however, argued that the flexibility of the 1809 RF had contributed to political stability in the turbulent inter-war era, and that it could be pragmatically amended through piecemeal reforms. An inquiry commission headed by political science professor Herbert Tingsten suggested expanding rights protection, but this never led to a bill (Justitiedepartementet 1941).

In 1954, the government appointed a constitutional inquiry commission (Författningsutredningen) with a wide mandate to conduct a complete oversight of the constitution, which presented its final report in 1963. It failed, however, to agree on whether parliament should have one or two chambers, and so presented proposals for both models. In 1966, the four major political parties agreed to appoint a new constitutional commission (Grundlagsberedningen, GLB). Having reached agreement on the parliamentary and electoral system, the commission could proceed with a total constitutional overhaul. In 1971, parties agreed to preserve the monarchy, yet stripping the monarch of all but a ceremonial constitutional function (Möller 2011: 185ff; Ohlsson 2014: 407ff).

While they reached compromises on most elements of the new constitutional architecture, parties failed to find a workable agreement on civil rights and liberties, a struggle that continued throughout the 1970s. In the GLB commission, Liberals and Conservatives wished to strengthen the protection for individual rights, in particular rights that were central to political participation, such as freedom of expression. By contrast, Social Democrats were skeptical of both the means of protection, that is, a suggested qualified majority requirement and judicial review, and the substance of the rights provided: The RF would give the wrong impression if it focused only on rights protecting citizens against abuses of power; it should also declare the ambitious egalitarian purposes of the welfare state (Algotsson 1987: 44). The commission reached a compromise, by which the Social Democrats ceded their demands for manifesto provisions and a prohibition against judicial review, while Liberals and Conservatives backed away from their insistence on a qualified majority requirement for rights restrictions.

Compared to the monarchy issue, rights and liberties initially did not stir much debate when the commission presented its proposal. In the hearing round, some key consultative bodies, including the Supreme Administrative Court, Svea Court of Appeals, the Justice Chancellor and the Swedish Bar Association, rejected the proposal in its entirety on both substantive and formal grounds, and specifically addressed the lack of protection of basic rights and liberties (Justitiedepartementet 1973: suppl. 2). In public debate, however, the only person to challenge the GLB’s proposal was Gustaf Petrén, Justice of the Supreme Administrative Court, who warned against the dangers of allowing a parliamentary majority to restrict basic rights and freedoms by ordinary statute (Algotsson 1987: 47ff). However, in January 1973, FiB-juristerna, a group of lawyers associated with the leftist freedom of expression organization FiB/Kulturfront, sharply criticized the lack of rights protections in the GLB in an op-ed in the leading daily newspaper Dagens Nyheter. Their article was followed by editorials and op-eds in major liberal newspapers (Algotsson 1987: 51).

By coincidence, the so-called IB Affair further fueled the debate on civil rights (Lampers 2002): In a series of articles in the magazine FiB/Kulturfront in May 1973, two reporters had exposed IB, a secret intelligence agency collaborating not only with the SDP and trade unions, but also with foreign intelligence services, which monitored and registered left-leaning Swedish citizens. In October 1973, the two journalists were arrested and eventually sentenced to prison for espionage.

Influenced by this public debate, the compromise agreement from the GLB had been lost as the ministry of justice prepared its bill (Algotsson 1987: Ch. 3). All four opposition parties filed separate motions where they criticized the constitutional bill’s lack of protection of rights. While the Communists and the non-socialist parties diverged in their views on substantive rights, they partially mobilized similar arguments against the bill. In the ensuing debate, Conservatives focused on the need for protecting individual citizens against everyday governmental reform zest, whereas Liberals demanded stronger constitutional rights provisions as vital protection in possible future political emergencies. The Social Democrats, on the other hand, regarded the right of a parliamentary majority to carry out political reforms as an essential expression of the people’s democratic rights, which should be curtailed neither by parliamentary minorities nor by unelected judges.

A divided parliamentary majority now opposed the constitutional bill. However, the parliamentary Constitutional Committee solved the problem by appointing a new commission, mandated to consider expanding constitutional rights protection, and by meeting some concerns of both the Communists and the non-socialist parties (Algotsson 1987: s. 3.9). Hence, on June 6, 1973, parliament adopted the new RF and its provisional rights catalogue, containing a set of core rights to freedoms of opinion (e.g., expression, information, assembly, association, and religion), but which could be curtailed by a simple majority decision in parliament, and a set of non-derogable rights provisions, such as prohibitions against retroactive penal legislation, capital punishment, and exilement.

The run-up to the second vote after the 1973 election, required for the new RF to enter into force, saw intensified mobilization: “numerous gatherings and demonstrations were held; resolutions were adopted; petitions were in circulation; the constitutional proposal was debated in editorial and cultural sections in the press” (Algotsson 1987: 114; cf. Svanberg 2013: 38ff). Seemingly strange bedfellows campaigned against the bill: On the non-socialist side, critical voices included Petrén, law professors Stig Strömholm and Håkan Strömberg, and liberal intellectuals; on the left, FiB-juristerna, but also radical intellectuals and various Marxist groups (Algotsson 1987: 115f). Parliament, however, did not heed the calls for a referendum on or a complete rejection of the proposal. In the debate preceding the second decision, all four major parties stood by the proposal, and portrayed the critics as an unholy alliance of the extreme left and right (Algotsson 1987: 119ff). The new Instrument of Government (RF1974) entered into force on January 1, 1975.

However, the constitutional rights dispute continued, now delegated to another commission, the Liberties and Rights Commission (Fri- och rättighetsutredningen, FRU), which, delivering its final report in October 1975 (Justitiedepartementet 1975), failed to resolve the controversy (Algotsson 1987: Ch. 4). On the majority view, represented by the Social Democrats and the Centre Party, rights should be secured by a material method, detailing their substance along with permissible and impermissible derogations, complemented by judicial review, permitting courts to set aside laws that “obviously” violate a constitutional law. Conservatives and Liberals repeated their demand for a qualified majority requirement for legislation constraining civil liberties. The Commission also proposed expanding the rights catalog with additional negative opinion liberties, prohibition against torture, corporal punishment, and registration of the political views of citizens, and expanded prohibition against discrimination. It also specified a set of economic and social rights, necessary for the fulfilment of democracy as objectives of the constitution, of lesser juridical weight than the negative civil liberties.

The FRU report received mixed responses during the hearing round (Algotsson 1987: 168). Both of the supreme courts endorsed the suggested judicial review model, whereas other consultative bodies in the legal sphere criticized it for being either too modest or too ambitious. The Confederation of Trade Unions sharply criticized the judicial review mechanism. In the resulting bill, the ministry of justice mainly followed the commission’s recommendations, but saw no need to regulate the practice of cautious judicial review in the constitution. In any event, the ministry suggested, yet another inquiry commission would investigate judicial review and related issues.

The rights protection issues continued to draw public interest, and the non-socialist press sharply criticized the proposal, but activism outside parliament had faded, particularly on the left. As the Constitutional Committee and parliament processed the bill, the opposition continued to insist that rights restricting legislation should require a qualified majority vote. In part, the failure to resolve the conflict may have been due to the peculiar parliamentary situation: Not only was an election coming up in the fall of 1976, where some parties feared and others prepared for mobilization on the issue of civil rights and liberties (Algotsson 1987: 233f); in the 1973 election, the two blocs had gained exactly 175 each of the new single-chamber parliament’s 350 seats, meaning that parliament had to draw a lot on issues where it failed to build a majority across the bloc divide (subsequently, the number of seats was reduced to 349). Presumably, most parties wished to avoid having contentious constitutional matters decided by chance.

In the 1976 election, the Social Democrats found themselves having to leave government for the first time in forty years, and the Centre Party formed a government together with Conservatives and Liberals. In 1977, minister of justice Sven Romanus appointed Gunnar Heckscher, former leader of the Conservatives, to head a new inquiry commission, the Rights Protection Commission (Rättig-hets-skydds-ut-red-ning-en), instructed to specify constitutional safeguards for civil liberties (Algotsson 1987: 238). When it presented its report (Justitiedepartementet 1978), all parties except the Communists had finally agreed to write judicial review into the RF, but with an important restriction: Courts could review a law only if it “obviously” violated the constitution. Moreover, for those rights that could be derogated by statutory law, two separate decisions by parliament would be required to allow time for reflection and debate. Finally, a parliamentary minority could demand a referendum on proposed changes to the constitution. The bill was confirmed by parliament after the 1979 election, which again gave the non-socialist bloc a majority.

After a quarter-century of constitutional reform, what did this settlement mean in terms of political liberalism, on balance? On the one hand, the new constitution improved on the 1809 Instrument of Government insofar as it sought to reflect actual constitutional practice and made the procedural rules for changing the constitution more rigid (Algotsson 1987: 284). Codifying civil liberties, every new constitutional commission also added rights provisions to the constitution. The reform process, long and contentious as it was, probably contributed to raising public awareness of civil liberties and rights. On the other hand, the new constitution also removed the last remnants of separation of powers, by scrapping the first chamber, strengthening the link between parliament and government, and regulating courts and public administration in one common chapter. The previously mandatory judicial preview by the Council on Legislation was made facultative in 1970–1, putting an end to recurring disagreements between the judiciary and policymakers (Modéer 2003: 165; Algotsson 2009). And the compromise on allowing judicial review only if statutory law “obviously” violated the constitution codified but effectively curbed a practice that had evolved, without support in the constitution, since the 1920s.

The closest we get to legal professionals emerging as a collective agent for political liberalism appears to be in 1973–1974, when some judicial consultative bodies, the Bar Association, justice Petrén, FiB-juristerna, and certain law professors sharply criticized the 1973 bill, accompanied by debates in the mass media and broader mobilization in civil society. However, consultative bodies in the legal sphere seem not to have mobilized in unison. The critics did not speak for the legal profession as a whole—the political parties targeted them as an unholy alliance of political extremists (Algotsson 1987). After that phase, the non-parliamentary critics, particularly on the left, moved on to other forms of activism and partly rights issues other than constitutional reform, while Petrén founded the Civil Rights Movement (Medborgarrättsrörelsen), a group whose commitment to natural rights and separation of powers placed it on the far side of the Conservative Party.

The 1970s were a period of protracted economic crisis, increasing radicalization, and political confrontation, yet the Social Democrats did not halt their ambitious reform agenda. Some other reform projects also had a bearing on political liberalism. First, in a series of reforms of the municipal structure from 1952 to 1974, more than two thousand towns, boroughs, and rural municipalities were merged into 278 municipalities. In 1969, the socialist majority in parliament decided to speed up the process by enforcing amalgamations (Erlingsson, Wångmar, and Ödalen 2010). While the new RF accorded municipalities local self-government and fiscal autonomy, parliament retained unlimited discretion in determining their tasks. Both the involuntary process and the resulting radical restructuring of local government weakened the municipal level as a balance to the central government. Second, the judicial system was the target of a similar rationalization program. Paralleling the municipality reform, urban and rural district courts were harmonized and brought together under state jurisdiction and regulation in 1971. In 1975, district courts were further centralized under a new National Court Administration (Domstolsverket, DV) in Stockholm—criticized by some as a government tool to control the judiciary (Nergelius and Zimmermann 2012: 192). The administrative court system was reformed by the creation of new administrative appellate courts (kammarrätt, 1972) and primary courts (länsrätt, 1979). By separating the judicial function from public administration, these reforms contributed to extending ‘the scope for judicial review of administrative and governmental action’ (Holmström 1995: 353), especially after the 1988 law enhancing the right to appeal administrative decisions.

While the 1970s may represent the peak of the social democratic project, they also represent the start of its demise, not only because the Social Democrats lost power for the first time since the 1930s. In the following decades, the pendulum turned again toward individual rights, constitutionalism, and judicial review, not least under the influence of European law. These trends may indicate more profound changes in the link between the legal complex and political liberalism in Sweden, and in their different ways they are all related to Sweden’s integration into the European community.

First, Sweden ratified the ECHR in 1952, including individual petition without restrictions, and in 1966, only after the retirement of foreign minister Östen Undén, Sweden accepted (non-permanently) the compulsory jurisdiction of the European Court of Human Rights (ECtHR) (Schaffer 2017; 2020). The Convention system had little impact on Swedish political and legal realities during the first thirty years (Sundberg 1986; Wiklund 2008). However, by the mid-1970s, the Strasbourg court was up to speed, since most states in Western Europe had accepted its jurisdiction, and it began to reinterpret its mandate: Rather than serving as an inter-state pact against totalitarianism, the Convention provided a bill of rights for European democracies (Bates 2010). In this new, empowered role, the Court delivered its first judgment against Sweden in the landmark case Sporrong and Lönnroth v. Sweden (1982).² The case concerned two property owners in Stockholm, whose buildings the city had put under an unlimited expropriation permit. The Court found that since the property owners could neither have the permits time-limited nor demand compensation for their economic damage, and since, moreover, they were denied a right to appeal the city’s decision, the state had violated both the right to protection of property and the right to a fair trial. The defiant attitude of the Swedish government—at a press conference, Prime Minister Olof Palme denigrated the Strasbourg court as a “playhouse for Supreme Administrative Court Justice Gustaf Petrén”—spurred the court to take up a series of cases that also resulted in judgments against Sweden. Slowly, it dawned not only on Swedish judges but on policymakers too that the Convention had profound implications for domestic legal and administrative practices.

In 1992, the government (a non-socialist coalition since the 1991 election) appointed a commission to investigate, again, constitutional rights protection and incorporation of the ECHR into national law (Justitiedepartementet 1993). The commission concurred with the government’s proposal to incorporate the Convention and permanently accept the jurisdiction of the Court, recognizing that the Convention was considered part of the legal order of the European Community, to which Sweden was preparing to accede. Furthermore, it noted, the Swedish system was becoming an anomaly, as other dualist states had already incorporated the ECHR or planned to do so. Finally, incorporating the ECHR into national law would signal its importance as a guarantee for individual rights, but also improve the authority of Swedish courts on ECHR rights. Consequently, Sweden incorporated the ECHR in 1995. It would take some time, however, before courts and the legislator began developing legal remedies (Bernitz 2011). In a series of precedent judgments, the Supreme Court successively expanded public authorities’ tort law liabilities for violations of the Convention (Schultz 2009).

Moreover, in 1995 Sweden joined the European Union, which not only introduced another supranational legal-judicial layer, with the Court of Justice’s doctrines of supremacy and direct effect, but also an additional source of rights and anti-discrimination law. As an effect, Swedish citizens overnight came to have stronger rights protection under European law than in the national constitution. More generally, EU membership also introduced a novel form of dualism into the Swedish constitutional order, incorporating a vertical separation of powers (Algotsson 2001)—a major transformation of the constitutional system which, however, left few direct marks on the Instrument of Government.

Second, the paradigm shift brought about by Sweden’s integration into a European legal order also provides an important background to recent constitutional changes, which have enhanced rights protection, judicial review, and judicial independence. By the 1980s, the practice of judicial and administrative review had already departed from the compromise of the 1970s, not least influenced by the ECHR (Holmström 1994). Following more than a decade of public debate and a parliamentary inquiry commission on constitutional reform (Grundlagsutredningen 2004–2008), the Instrument of Government was revised in 2011. These revisions served to strengthen the protection of fundamental rights and liberties, remove the much-criticized restriction on judicial review, and make the constitutional preview by the Council on Legislation mandatory again. Moreover, the revisions also enhanced judicial independence by affording courts a new, separate chapter of the Instrument of Government and by moving the authority to appoint judges from the government to an independent board (Domarnämnden).

What these constitutional changes imply in terms of political liberalism and legal activism may still be too early to tell. A conservative member of the constitutional commission enthusiastically proclaimed that these changes turned “every district court into a constitutional court” (von Sydow 2011). Other commentators have more cautiously pointed out that the revisions may have strengthened the constitutional role of courts, but they are still not strong and independent enough, from the point of view of constitutionalism, rule of law, and legal security (Nergelius 2011). Legal scholars and lawyers have debated whether a series of recent prominent cases indicate that the Supreme Court has become more activist, appropriating a law-making function, and whether this new role is in line with the constitution (Wiklund 2014; Wersäll 2014).

However, with a slightly longer perspective, it seems evident that Sweden has been moving, steadily if incrementally, toward a more continental style of constitutionalism since the early 1990s. As in other Nordic states, a paradigm shift has occurred, “where it is now understood that courts have the competence and even the duty to apply a catalogue of fundamental rights, even of a ‘foreign’ origin, as a normative basis for reviewing decisions or other measures taken in the application of domestic law” (Scheinin 2008: 139f). Among consolidated democracies, the Nordic states may be a “final frontier” for judicial review, yet all key elements of constitutionalism—a written constitutional document, rule of law, fundamental rights, acknowledging international conventions, and so on—now exist within the five Nordic states (Nergelius 2008).

As an illustration of courts acting collectively in their new, more self-confident role, the so-called Haparanda uprising deserves mentioning. In 2010, the Supreme Court passed a judgment that approved of a common practice whereby the state could both levy a tax surcharge on persons who had given incorrect information in their tax declaration and prosecute them for fiscal offense. Finding this system to violate the ne bis in idem principle in both the ECHR and the EU Charter on Fundamental Rights, the district court in far northern Haparanda rejected the Supreme Court’s reasoning and requested a preliminary ruling from the European Court of Justice (Kindbom 2011). Other district courts across the country soon followed suit and, faced with this extraordinary uprising of lower-level courts armed with European rights law, the Supreme Court eventually reversed its judgment, prohibited prosecution for tax offense after a tax surcharge, and started allowing retrial in double jeopardy cases. The government also responded by proposing new legislation whereby a court would decide on both penalties in a single procedure.

Third, since the early 2000s, if not earlier, a support structure for rights litigation has emerged in Sweden. In the 1980s, interest organizations that previously had been well integrated into the corporatist state had already started using strategic litigation, rather than working within the corporatist system, in order to pursue their interests (Holmström 1994). For instance, the landmark case Sporrong and Lönnroth v. Sweden was initiated and financed by the Swedish Property Federation, rather than by the plaintiffs their lawyers represented. Whereas organized interest groups that felt frustrated with established political channels brought these earlier cases, the emerging support structure today is composed of a variety of disparate organizations that have individual rights litigation as their main purpose. It includes a groups such as Centrum för rättvisa (Centre for Justice), a non-profit founded in 2002 that has taken on numerous cases, such as representing prospective students against discriminatory university admission criteria; Civil Rights Defenders (founded in 1982 as the Swedish Helsinki Committee), which has taken on notable rights cases against Swedish authorities, for example the “extraordinary rendition” of Agiza and Alzery to Egypt; and Sveriges Antidiskrimineringsbyråer (Anti-Discrimination Bureaus of Sweden), a network of fourteen local organizations financially supported by the state, which offer legal support and represent individuals, sometimes in much publicized cases, for example overturning mandatory sterilization prior to sex reassignment surgery.

These organizations have utilized the opportunities provided by national, European, and even international law to take rights cases to court (or other relevant forums), offering individuals legal expertise and financial support for litigation, but they also contribute to broader publicity and mobilization around individual rights. Lacking systematic data on cases and success rates, however, it is difficult to judge whether this budding support structure may lead to a broader rights revolution (Epp 1998)—or if it already has.

What role have lawyers and judges played for political liberalism in Sweden? This chapter has covered struggles for political liberalism in Sweden from the constitutional revolution in 1809 to the impact of European rights law—a revolution in a quite different sense—in the late twentieth century. What broader conclusions can we draw from this historical exposé? First, previous research on the legal complex has chiefly focused on legal professionals acting through courts or arising as public spokespersons for political liberalism. There are examples of such political lawyering in the Swedish case, for instance during the wartime press freedom trials. However, to the extent that legal professionals have shaped the expansion or contraction of political liberalism in Sweden, their most notable achievements have occurred through the slow and less theatrical work in governmental committees. Ever since the Law Commission was created in 1811, the committee apparatus not only suggests an arena for enacting political liberalism; the notion that government should make public policy by commissioning experts to draft new legislation and exposing their proposals to public scrutiny by official consultative bodies and the broader public also represents a potential constraint on government per se. However, sometimes committees have also been used as a means to defuse political conflict, as in the 1970s struggle over constitutional rights and liberties, or to obstruct important reform, as in the 1840s tableaux committees.

Second, the Swedish case also suggests that legal professionals acting as defenders of liberal rights may be a product of just as much as a causal force for political liberalism. For instance, in the nineteenth century, liberal reformers confronted authoritarian rule on multiple fronts, but their weapon of choice was rarely to mobilize law in courts, simply because the existing legal-judicial system was part of the problem rather than of the solution. Reformers first had to create an independent judiciary, a professional legal education, a competent bar, and, most importantly, a Rechtsstaat based on equality before the law. Likewise, the expansion of individual rights since the 1980s was in part caused by the changing nature of European human rights law, but also by domestic interest groups, dissatisfied with the corporatist system, turning to strategic litigation. Legal occupations have successively moved into the space provided by European rights law, both driven by and driving an expansion of political liberalism.

Finally, the Swedish case also raises questions about whether legal professionalism or liberalism is the primary cause behind legal action for political liberalism. Throughout two hundred years of political history, liberals have, at times, mobilized to enact individual rights and constrain government and civil society, using whatever strategies, arenas, and alliances they thought would help them achieve their goals. Some of these liberal reformers have been jurists using their legal competence collectively to promote political liberalism, such as Richert and his fellows on the law commissions of the nineteenth century. However, at other times legal professionals have been acting in concert to promote illiberal causes, such as Karl Schlyter and other radical jurists who contributed to the enactment of the sterilization laws in the 1930s. The professional role alone seems insufficient to account for why some groups of jurists promote liberalism whereas others oppose it. What does seem necessary, however, is to have a critical mass of people who believe individual rights and constrained government offer a solution to the grievances and difficulties they experience, who are determined to act on those beliefs and who are able to overcome their collective action problems.