Arbetsdomstolen och lagstiftaren: Om värderingar i rättsligt beslutsfattande : [on values in judicial decision-making]
1998 (Swedish)Doctoral thesis, monograph (Other academic)
In this thesis the author examines certain values (judicial values) supposed to have been in operation in situations where the relation to the legislator was foregrounded. The study covers the period 1974-1988. Judicial decision-making is discussed in terms of four different situations: statutory interpretation, clarifying of balancing norms, statutory analogy and the creating of new rules. Statutory interpretation and clarifying of balancing norms (interpretation in a wide sense) are assigned to a sphere of metanorms with respect to the Labour Court's view of three legal sources: statute. legislative preparatory material, and precedent. For this part of the study a theoretical framework is used where two main orientations are distinguished: orientation towards the legislator and orientation towards the consequences. The orientation towards the legislator may go in two different directions, either towards the wording of the statute (Swed. lagens ordalydelse) or towards the intention of the legislator. The intention, in turn, can refer to either the linguistic meaning or to the purpose.
Statutory analogy and the creation of new rules are instead assigned to a sphere of metanorms with respect to the Court's view of a proper division of roles between the legislator and the Court as far as the development of the law is concerned. They are seen as examples of "gap-filling".
The aim of this study is to contribute to the knowledge of judicial decision-making with the emphasis placed on the judicial values underlying this decision-making and their influence on it.
Conclusions concerning the existence of different approaches in questions of interpretation and gap-filling are drawn from an extensive legal material consisting of the Labour Court's published judgements.
It is maintained that there was considerable room for different outcomes in the decision-making and that there were considerable variations in opinions within the Court concerning the issue how decision-making was to be carried out. It is also maintained that the importance of courts will increase in the future and that this makes them a worthwhile object of study.
The author also touches upon some aspects of explaining judicial decision-making and of designing reasons in such a context.
Place, publisher, year, edition, pages
Uppsala: Acta Universitatis Upsaliensis , 1998. , 362 p.
Skrifter från Juridiska fakulteten i Uppsala, ISSN 0282-2040 ; 67
IdentifiersURN: urn:nbn:se:uu:diva-1110ISBN: 91-7678-393-6OAI: oai:DiVA.org:uu-1110DiVA: diva2:160656
1998-12-09, universitetets lärosal IX, Uppsala universitet, Uppsala, 13:00 (English)