The Role of the Constitution in Sweden: Addressing its Patchy Legal Legitimacy and the (Half-Way) Transition from Political to Legal Constitutionalism

1 The Swedish Constitution: A Rough Picture

From a brief and superficial observation of the Swedish constitution, one can immediately notice a rather peculiar feature that distinguishes it from many well-established contemporary democracies. While in most countries, constitutional provisions are typically assembled in a single document, the Swedish constitution is actually composed of four fundamental laws (in Swedish, Grundlagar). These laws, though interconnected in terms of their content, have their roots in different historical periods.^[22] Moreover, as will be shown in Part 2, these fundamental laws, besides regulating various traditional constitutional matters, tend to exhibit different features and degrees of legitimacy, particularly among legal actors. However, all four of these fundamental legal documents share a common formal feature. Their enactment into law follows a more complicated (or ‘aggravated,’ in constitutional terminology) process compared to ordinary laws or statutory provisions.^[23]

The Freedom of the Press Act was originally enacted in 1766 and, despite undergoing several fundamental amendments over the centuries, it is regarded as one of the earliest constitutional documents in the world promoting the freedom of the press and freedom of information.^[24] The primary content of the Freedom of the Press Act revolves around regulating the freedom of expression in printed media and establishing the robust principle of public access to official documents. The Act of Succession, originally formulated in 1810 with subsequent amendments, is a relatively concise constitutional document that regulates the inheritance of the Swedish throne among the members of the Bernadotte family, both male and female.^[25] The Fundamental Law on Freedom of Expression, originating in 1991, regulates the exercise of freedom of expression in non-printed media, specifically addressing sound radio, television, and the Internet.^[26] Last but certainly not least, the fourth fundamental law constituting ‘the Swedish Constitution’ is the Instrument of Government. Enacted in 1975 to replace the old 1809 Instrument of Government, it has undergone some changes over the years, albeit of relatively minor importance.^[27]

The Instrument of Government is of paramount importance for the purpose of this work. Not only do its central provisions closely align with the traditional ‘one-document’ constitutions of other democratic countries, but its significance also stems from the fact that it addresses most of the traditional matters regulated in a typical constitution. Serving as a general fundamental law, the Instrument of Government outlines the basic rules according to which the country is to be governed and delineates its fundamental goals, much like the constitutions of other well-established democracies.^[28] The basic principles of the form of government are articulated in Chapter One of the Instrument of Government. In particular, Article 1 states that ‘[a]ll public power in Sweden proceeds from the people’ and that Swedish democracy ‘is realized through a representative and parliamentary form of government’.^[29] In addition to outlining the ‘rules of the game,’ like every constitution in a democratic country, the Swedish Instrument of Government also includes a detailed catalogue of basic rights. These rights serve as a guide for the protection and implementation efforts of the state apparatus, and ultimately serve to limit its powers.^[30] The list of such rights is in particular enumerated in Chapter Two, where a distinction is made between absolute rights and relative rights: while the first cannot be limited other than by changing the fundamental laws, the second group of rights enjoys a more limited constitutional protection since they may be limited (in some cases, following a qualified procedure) by statutes (or other forms of ordinary law).^[31]

As is immediately noticeable, the rights and freedoms protected by the specific Chapters Two of the Instrument of Government, are traditionally defined as ‘liberal rights’ (or ‘first generation rights’).^[32] One could mention, for instance, the freedom of worship, the right to a hearing before a court of law if deprived of liberty, protection against significant invasions of personal privacy, or the right to industrial action. These rights characterize liberal democracies and, generally speaking, are those rights that solely concern what happens in the individual’s private sphere. They aim to create a sphere of legal autonomy for the individual that is free of interferences, particularly (but not exclusively) from public actors.^[33] Moreover, such a typology of rights imposes upon public authorities the general duty to act (or not act) in such a way that the individual’s preferences should be decisive over the social ones. In other words, social preferences are, in principle, to surrender whenever they conflict with individual ones.^[34]

In addition to the rules structuring the state machinery and the rights to be shielded by it, the Instrument of Government contains, in its Chapter One, Article 2, a third component: the indication of the goals which the Swedish state apparatus should strive for, within the limits set by the liberal individual rights enumerated in Chapter Two. These goals are particularly important since many of them are directly traceable to the very essence of ‘welfare (or social) rights’ (or ‘second generation rights’).^[35] These rights protect the claims of the citizens (and residents) of a country to be informed about and to receive certain state welfare benefits, enabling them to enjoy, according to their needs, the system set up by the state to promote individual dignity and socio-economic equality.^[36] Such types of rights impose upon the state apparatus an obligation to act positively in order to realize them or, as stated by a legal scholar, they are ‘characterized by an express obligation upon a state to intervene rather than merely abstain from encroaching onto the private domain of the citizen’.^[37] Chapter One, Article 2 clearly indicates that the Swedish state apparatus shall operate with respect for the equal worth of all and the liberty and dignity of the individual (i.e. by respecting the ‘liberal rights’) in order to achieve the personal, economic, and cultural welfare of the individual (i.e. in order to fulfill the ‘welfare rights’).^[38]

To sum up, the Swedish constitutional documents, primarily the Instrument of Government, exhibit all the features typical of a constitution in a democratic form of government. They structure state power to be as representative of and accountable to its citizens as possible. They indicate the limits within which such power may be exercised to guarantee the personal freedoms of individuals (liberal rights). Finally, they set as goals of state power’s exercise the fulfillment of individual dignity and the pursuit of social and economic welfare for the citizens and, to a lesser degree, residents of Sweden (welfare rights).^[39]

2 The Political Relevance of the Swedish Constitution

While the content and positioning of the Swedish constitutional documents at the top of the legal system’s pyramid seem quite in line with those shared by constitutions of other democracies around the world, the panorama changes considerably when one shifts attention to the legal legitimacy such documents have within the national legal discourse. In most democratic states, constitutional provisions are used by legal actors as ultimate and decisive arguments to support their positions. In other words, the regulatory frameworks provided in the constitutions and the resulting constitutional reasoning or argumentation constitute the solid foundation upon which to build a legal discussion, a judicial decision, an administrative action, or a new statute.^[40]

In the Swedish legal discourse, this foundation seems to be less solid and, instead, exhibits an uneven design when it comes to its legal legitimacy. Generally speaking, one can observe that, concerning the legal legitimacy of the constitutional documents, this legitimacy may be robust and relevant for some of the Swedish constitutional documents or parts thereof, while it is considerably fragile or almost non-existent for others or parts thereof.^[41] This patchy design of legal legitimacy in what are typically solid constitutional foundations manifests itself in the Swedish legal discourse in two main forms: a ‘macro-patchy’ form and a more ‘micro-patchy’ character.

3 The Swedish Constitutional Laws and the Legal Actors

Whether viewed from a macro perspective or a narrower angle, the patchy nature of legal legitimacy within Swedish constitutional laws is apparent when considering their binding force within legal discourse. Certain laws or parts of laws are regarded as having less legal legitimacy than others when it comes to the implementation of constitutional law in Sweden.^[64] As pointed out by Olof Petersson, while the descriptive nature of the Swedish constitutional texts is generally accepted, i.e. their being ‘evidence of past struggles for political influence,’ it is still questionable their significance for the constitutional legal discourse, i.e. their being ‘fundamental and stable principles, a clear hierarchy of norms, a constitution difficult to amend, and a constitution respected and referred to in public life’.^[65]

The fragmented binding force of Swedish constitutional documents is indeed evident in their status among major legal actors. Traditionally, Swedish judges, particularly those in the highest courts, do not accord constitutional provisions the strongest legal force. Consequently, they seldom rely on constitutional arguments as decisive factors in their decisions.^[66] It is true that the lack of a clear and explicit statement in Swedish constitutional documents regarding the supremacy of the constitution within the hierarchical structure of legal sources may contribute to the judiciary’s reluctance to rely on constitutional arguments.^[67] However, judicial bodies could potentially play a crucial role in utilizing constitutional provisions as decisive arguments in legal discourse, particularly by evaluating the constitutionality of regulations produced by legislative and administrative bodies.

Firstly, Sweden has explicitly adopted a regime of diffuse concrete constitutional review, wherein an ordinary court is empowered to refrain from applying a provision that conflicts with a provision of the fundamental laws (as outlined in the Instrument of Government, Chapter 11, Article 14). Secondly, and of even greater significance, Sweden lacks a dedicated constitutional court tasked with authoritatively assessing the constitutionality of various legal provisions enacted within the country. As a result, this responsibility theoretically falls upon the ordinary court system.^[68] However, due to several complex historical, political, structural, and institutional factors, the legal legitimacy of a particular judicial decision is not derived from its alignment with the framework established by the constitutional documents. Instead, it is primarily determined by its adherence to the system established by ordinary law, precedent, and customary practices.^[69] In other words, despite being tasked with a constitutional review, judges tend to rely more on systematic interpretation as their primary argumentative tool, where the legal system from which to acquire legally legitimized support is usually the one of ordinary statutory provisions, practices, and judicial precedents.^[70]

When attention is directed towards legislative bodies, it becomes apparent that they, too, often perceive constitutional documents (or parts thereof) more as general policy guidelines rather than truly binding legal frameworks. Due to the relatively restrictive interpretation given by the legal and political arenas of the opening paragraph of the Instrument of Government, Chapter 1, Article 1 (‘All public power in Sweden proceeds from the people. Swedish democracy … is realized through a representative and parliamentary form of government’), an almost paradoxical situation has emerged.^[71] Traditionally the Swedish political actors sitting in the legislative assemblies have always perceived themselves primarily accountable to the electorate and therefore primarily bound to the political idea of the will of the people, and not to the legal constitutional provisions.^[72]

The Swedish political debate regarding lawmaking differs significantly from other contexts, such as the USA. While the Constitution often serves as the rigid legal framework shaping political discussions in the North American country, in the Swedish political arena, constitutional provisions are rarely utilized as key elements to bolster a particular position in the discourse. Instead, this role is typically assigned to the perceived ‘will of the people’.^[73] As Jaakko Husa strikingly pointed out, ‘the heightened role of the [Swedish Parliament] shadows the legal function of the constitution’.^[74]

This lack of attention to constitutional provisions becomes particularly striking when one examines the most ‘legal’ documents of the political discussion surrounding legislation, namely the preparatory works for new legislation. Despite being regarded in Sweden as quasi-authoritative sources of law, these preparatory works often contain scant references to constitutional provisions. When such references do occur, they are typically not treated as norms delineating the boundaries and modalities of the entire legislative discussion. Instead, they are considered and used as general policy statements suggesting the direction in which the legislation should proceed.^[75] Even in cases where non-binding ex-ante constitutional evaluations are conducted on upcoming bills by the Council on Legislation, the argumentation tends to be rather technical or, when constitutional protected interests are involved, the analysis is typically descriptive in nature.^[76]

Regarding the role of the Constitution in the third major actor in the Swedish legal landscape, namely the public administration, it is evident that the fundamental laws tend to remain in the background of the legal discourse, with their legal legitimacy being rather weak. One notable feature of the Swedish public administration is its robust autonomy from the control of political parties.^[77] This characteristic, stemming from the specific institutional history of Sweden, is reinforced by the constitutional document of the Instrument of Government, which explicitly prohibits ‘ministerial rule’ (in Swedish, ministerstyre) over public agencies in performing their primary task: implementing the law.^[78] For a variety of historical, political, and structural reasons, the prohibition of ministerial rule over the public administration is staunchly upheld by both politicians (often reluctantly), public agencies, and, notably, administrative courts. In other words, the independence of the public administration is part of the legitimized Swedish constitutional discourse.^[79] The political influence over the public administration in general is thus rather limited in Sweden, effectively creating a two-power system where administrative practices tend to wield significant quasi-legislative authority in many areas of both private and public law.^[80]

Due to this strong independence of the public administration within the Swedish constitutional landscape, an independence sanctioned by the very constitutional documents, public officials have traditionally developed a specific legal argumentative apparatus in order to support their decisions. In a paradoxical turn, while making use of the constitutional provisions for reaffirm their institutional independence, Swedish public officials tend to overlook the value of the constitutional documents as interpretative tools. Instead, they rely heavily on the public administration’s ‘own’ interpretations of statutory provisions, developed over the years through countless policy and regulatory documents, to shape administrative practices.^[81] In essence, while Swedish public administration derives from constitutional documents its robust operational autonomy within the state apparatus, it seldom regards constitutional provisions as the primary basis for interpreting statutes during operations, especially in implementing statutory provisions. In the rare instances where constitutional provisions are acknowledged, they are often treated as ‘supplementary’ argumentative tools, supporting established administrative practices and policies, which hold greater legal legitimacy as sources of law for public officials.

This gap between the legal discourse of public administration and the constitutional documents is even more striking considering that the Instrument of Government, like for the ordinary courts, specifically grants Swedish public agencies the power of constitutional review.^[82] However, as Henrik Wenander bluntly pointed out, ‘[d]ecisions involving constitutional review, be it under EU law or the Instrument of Government, are rare in Swedish public administration’.^[83]

Finally, concerning the utilization of constitutional documents by Swedish legal scholarship, also here the situation is rather pale. It is worth noting that traditionally, there has been a relatively small number of academics specializing in constitutional issues, particularly when compared to the size of other legal disciplines or in comparison to other national contexts.^[84] For instance, while all legal programs in the country have included at least one professor specializing in administrative law, very few have focused on constitutional law. Due to the limited legal significance of the constitution within Swedish legal discourse, alongside other historical factors and considerations related to academic career paths (such as the potential transition to the Supreme Administrative Court as a justice), Swedish constitutional law has long been perceived – and continues to be, in many universities – as a component of or conflated with the broader field known as ‘public law’. Consequently, the administrative regulatory framework, though formally subordinate to constitutional law in terms of legal hierarchy, tends to assume a predominant role in academic discussions.^[85]

Given this institutional context, where constitutional law is not clearly delineated within or distinguished from the broader field of public law, it is unsurprising that in legal scholarship discourse, constitutional issues are frequently ‘translated’ into, or more commonly, perceived as general ‘public law’ issues. Here, the argumentative tools offered by ordinary statutory provisions and administrative practices play the leading role.^[86] In summary, within the landscape of Swedish legal scholarship, it is evident that constitutional arguments lack complete legal legitimacy among public law scholars: they are typically not employed as primary tools in discursive practices but rather play a supplementary role.

4 The Patchy Legal Legitimacy of Swedish Constitutional Laws: Exploring the Causes

The patchy legal legitimacy of Swedish constitutional documents within the legal discourse can be attributed to several intersecting factors, each contributing to this complex nature.^[87] The first set of factors is rooted in history, particularly in the varying degrees of legal bindingness between the Freedom of the Press Act and the Fundamental Law on Freedom of Expression, on one hand, and other constitutional documents, notably the Instrument of Government, on the other hand. The Instrument of Government, replacing in 1975 a preceding constitutional document from 1809, represents a relatively innovative approach. By incorporating constitutional practices developed throughout the twentieth century, it has propelled Sweden’s form of state in a new direction. This shift essentially formalizes Sweden’s transition from a parliamentary monarchy to what could be described as a ‘crowned republic’.^[88] Hence, its current limited legal legitimacy among legal actors tends to rely solely on its status as formal ‘constitutional’ law, rather than also recognizing it as a legal document reflecting Sweden’s historical evolution.

The legal legitimacy enjoyed by the Freedom of the Press Act is instead based on much more solid historical ground. Like the Instrument of Government, the actual Freedom of the Press Act is the culmination of continuous modifications of the original document, which was produced in 1766. However, in contemporary Swedish legal discourse, the Freedom of the Press Act is regarded simply as an adjustment to the original one, yet it still maintains the same basic underpinning: the defense of the freedom of the press against any political interference and the opening of public administration to the public.^[89] Over the centuries, these foundations have acquired a high degree of legal legitimacy among legal actors, as they have always been perceived as fundamental in shaping the features of modern Swedish governance. The Freedom of the Press Act symbolizes the transition from an absolutist monarchy to a constitutional monarchy, wherein public powers and administration are not tools wielded solely by the executive branch, but rather instruments for the people, accountable primarily to them (also via the press).^[90] In contemporary Swedish legal discourse, the Freedom of the Press Act is then esteemed as a sturdy foundation for constructing legal reasoning and arguments. This legal legitimacy stems from its deep integration with the foundational principles of the modern Swedish state since the eighteenth century, signifying a bottom-up construction approach.

Similarly, the Fundamental Law on Freedom of Expression also enjoys a high degree of legitimacy among the legal actors and is generously utilized as a true constitutional text in the legal discourse.^[91] Despite being the newest constitutional law (enacted in 1991), this constitutional act simply extends the basic principles of the Freedom of the Press Act to non-print media. These principles include the openness of public administration and unrestricted external review of public powers, serving as key legal tools to ensure the formation of a truly free public opinion.^[92] In the legal arena, the Fundamental Law on Freedom of Expression is perceived as a quantitative expansion of the traditional freedoms and obligations outlined in the historical Freedom of the Press Act. This expansion broadens these freedoms to additional areas. Importantly, it inherits the high legitimacy that the Freedom of the Press Act has garnered over centuries as the primary defender of the inalienable rights of the Swedish people.^[93]

Another factor contributing to the patchy nature of the legal legitimacy of Swedish constitutional documents is the Swedish or social-democratic version of the welfare state.^[94] This model necessitates the creation of a well-articulated public apparatus which, through deep integration and coordination of all its components, can realize the social and economic equality of all citizens. The law and its actors are considered and utilized as essential parts of such a construction but are of a ‘soft’ nature. This term simply implies that within the Swedish concept of the welfare state, the implementation of welfare ideals into society primarily relies on legal regulatory tools, such as taxation law.^[95] However, for the implementation of a welfare eco-political model – predicated on non-legal values – the legal discourse, culture, and actors must be prepared and willing to reconsider their fundamental principles and doctrines. This reconsideration primarily entails challenging the notion that constitutional documents serve as the ultimate and overriding framework for steering a community’s entire existence. In cases where legal paradigms embedded in the constitution clash with non-legal principles promoted by political actors through ordinary legislation and executed by public administration, there must be a readiness to adapt or reinterpret these legal constitutional frameworks.^[96]

The relatively weak position of constitutional laws within the Swedish legal discourse is further underscored by a significant factor contributing to the success of the welfare state model in Sweden. This model is entrenched in, or according to alternative viewpoints, has engendered an environment characterized by relatively low levels of political, social, and economic conflicts. This environment, in turn, is predicated upon the notion – historically upheld until recent times – that a majority of key public and private entities have concurred on the fundamental values to be realized through the political system and its legislative framework.^[97] In this relatively homogeneous valuescape, unlike in other systems marked by greater tensions (e.g. the USA or Italy), it becomes evident how the necessity for a robust constitutional foundation within legal discourse diminishes. Such a foundation typically serves as a cornerstone for justifying specific value systems in the legal realm, acting as the ultimate legal document. The constitution functions as an authoritative and conclusive voice in the legal discourse, determining, in cases of conflicting worldviews, the prevailing values and those that are relegated.^[98]

The fourth set of reasons why Swedish constitutional documents tend to possess a relatively low level of legal legitimacy among the actors participating in legal discourse is linked to the country’s constitutional architecture and discourse. Beginning with the Swedish constitutional architecture, a significant component involves the rejection of the principle of the division of powers, unlike the approach adopted by most Western-style democracies. Instead, there is an endorsement of the separation of functions.^[99] Legal actors have traditionally adopted a stringent interpretative stance regarding the first paragraph of the Instrument of Government (1974), Article 1, which asserts, ‘All public power in Sweden proceeds from the people … It is realized through a representative and parliamentary form of government’. Consequently, Parliament is deemed the sole legitimate normative authority, representing ‘the people’. This perspective relegates constitutional documents, with their perceived ‘general’ and ‘vague’ formulations, to the periphery of legal argumentation tools within the Swedish legal discourse.^[100] As a result, legal actors have leveraged this constitutional doctrine to justify prioritizing the interpretation, implementation, and discussion of laws enacted by political actors – namely, ordinary legislation and regulations – at the expense of provisions outlined in constitutional documents.^[101]

Lastly, but certainly not insignificantly, the absence of a dedicated constitutional court and the relatively ineffective constitutional review procedure have contributed to the diminished influence of constitutional documents within the Swedish legal discourse. Empirical evidence from countries such as Germany, the USA, or France illustrates that the presence of a robust constitutional court typically bolsters the significance of constitutional documents within both the legal community and society at large.^[102] Specifically, a constitutional court enhances the legal legitimacy of constitutional documents by conveying a clear message to political, social, and legal actors alike: through its binding decisions, the constitutional court unequivocally affirms that these documents serve as the ultimate legal boundaries that cannot be violated. It asserts authoritatively that the life of an entire community should be shaped and regulated in accordance with these documents.^[103] The absence of a dedicated constitutional court in Sweden, which typically carries a high legitimizing effect for constitutional documents among legal actors and others, has resulted in a dual impact on the national legal discourse and its participants. On one hand, the constitutional role that various legal actors may assume in the realm of public law, particularly their emphasis on safeguarding the intangible rights of individuals as guaranteed in constitutional documents, is diminished.^[104] On the other hand, legal actors have filled this void by expanding their ‘administrative function,’ primarily focusing on discerning the ‘true’ intention of the legislator when confronted with ambiguous legislative matters.^[105]

The interplay of these factors, often in mutually reinforcing relationships, partially elucidates a distinctive characteristic of a mature and well-established democracy like Sweden: within the legal discourse, constitutional documents as a whole typically receive relatively weak legitimacy among the available sources of law that legal actors can utilize in their arguments. While certain constitutional documents may carry significant legal weight in the daily operations of legislators, courts, public agencies, or scholars, others often find themselves relegated to the periphery of legal discourse, assuming only a supporting role compared to other more legitimized legal sources.

5 Recent Trends in the Legal Legitimacy of Swedish Constitutional Laws: From Political to Legal Constitutionalism?

While the portrayal of Swedish constitutional laws with patchy legal legitimacy among legal actors may still hold true in today’s legal discourse, one cannot disregard the signals indicating a potential shift. These signals, stemming from both internal dynamics and external influences, seem to be nudging Sweden towards a different trajectory. Specifically, these forces may be exerting pressure on Swedish legal actors, or at least some of them, to align more closely with the common situation observed in other well-established democracies in the Northern hemisphere. This situation often emphasizes the role of the constitution as a legal document, frequently wielded as a trump card, in their legal discourse to regulate and limit the political actors and their logics. In other words, Swedish constitutional documents and their new legal legitimacy appear to be sanctioning and/or promoting a transition from the realm of political constitutionalism towards that of legal constitutionalism.^[106] Significant in this regard is the fact that the preparatory work for the latest constitutional reform is clearly inspired to strengthen the legal force of Swedish constitutional texts and their impact on the political discourse. This goal is evident, for instance, through the facilitation of the process of constitutional review, making it easier to activate.^[107]

Regarding the major endogenous factor, one cannot overlook the considerable changes that have unfolded in the Swedish political, social, and economic realms over the past decades. The fragmentation of the community -or more accurately, the emergence of previously concealed segments of the community- has propelled the Swedish legal sphere into uncharted territory.^[108] Today, the legal arena hosts a plethora of value systems, often in competition (if not conflict) with one another, vying for recognition in the legal discourse. A quintessential example is the ongoing debate between proponents and critics of private religious schools receiving public funding.^[109] As an immediate consequence, there is a growing demand for an ‘ultimate conflict-solving’ legal document at the base of the regulatory pyramid. In a climate marked by value conflicts, legal actors such as courts or legislative assemblies frequently find themselves needing to rely on an overarching, and because of that highly legitimized legal source. This source, by embodying the fundamental values upon which contemporary Sweden is built, empowers these actors to decisively argue in favor of the value system they seek to uphold.^[110]

As recently emphasized in a joint editorial by the Presidents of both the Swedish Administrative Supreme Court and the regular Supreme Court, the legal sphere finds itself at the epicenter of an ongoing battle among various value systems.^[111] More significantly, positive law should be viewed and utilized by legal actors as a connecting channel for these systems, playing a pivotal role in providing legally legitimized criteria for determining which value system should prevail and be recognized as lawful.^[112] This shift towards a central role for positive law inevitably elevates constitutional documents to fundamental tools in the Swedish legal discourse. By their very nature, these documents are designed to outline the basic value systems to be upheld within a community. Moreover, they possess inherent legal argumentative force and potential high legitimacy, given their position at the foundations of the pyramid of the legal system in every well-established democracy.^[113]

Shifting focus to external influences driving a stronger role for constitutional provisions within the Swedish legal discourse, Sweden’s accession to the EU in 1995 and the subsequent rulings of European courts have been particularly significant. These decisions have notably bolstered the process of legal solidification in Sweden, rendering national law, in many respects, harder to manipulation for non-legal objectives, such as political or economic aims.^[114]

Participation in the European legal system has underscored, within the Swedish legal discourse, the inherent and absolute nature of certain individual legal rights and the corresponding unconditional duty of public actors to respect or refrain from interference.^[115] This influence has fostered the cultivation of a ‘rights culture’ across Swedish legal, political, and social spheres, akin to the Anglo-American conception of rights. In this framework, rights are viewed as legal attributes inherent to individuals, deserving protection by the state apparatus regardless of national statutory provisions or administrative practices.^[116] As a result, akin to the constitutional history in Anglo-American contexts, it is increasingly common for various Swedish legal actors to ground their arguments in the constitutional documents, where such rights are endorsed with legal status and the highest level of legal bindingness.^[117]

While endogenous and exogenous forces are indeed influencing certain Swedish legal actors to prioritize the use of constitutional arguments in their legal discourse, this tendency is not uniform across all actors. Notably, within the public administration in Sweden, there persists a predominant reliance on statutory provisions, regulations, and administrative practices as the primary basis for legal decisions.^[118] For instance, the intricate system of government directives and instructions to public agencies (in Swedish, Regleringsbrev) plays a pivotal role in shaping administrative practices. However, this influence can come at the expense of the otherwise highly legitimized constitutional principle of transparency in public administration.^[119]

The reason for such (at least up to now) reluctance by the Swedish public administration in employing constitutional provisions as the highest legitimate argument in the law-implementing phase may be traced back, among other factors, to the inherent conservative nature of these actors.^[120] It is important to clarify that the term ‘conservative’ in this context does not imply a political connotation within the administrative apparatus of the Scandinavian country. Instead, the conservative character of public administration denotes its institutional inclination to be path-dependent or legacy-dependent, adhering closely to established practices.^[121] In other words, various factors, such as the career system of personnel, contribute to Swedish public agencies -particularly grassroots ones- adhering as much as possible to established practices when implementing the law in concrete cases. This adherence typically involves the tradition of relying primarily on statutory provisions, regulations, and previous practices as the main sources of reference for their arguments.^[122]

Despite the traditionally persistent hesitancy within public administration, other actors within the Swedish legal landscape appear to have been more significantly influenced by the above-mentioned various forces constitutionalizing the legal discourse. They seem to be on a path more inclined towards embracing a broader utilization of argumentative instruments grounded in Swedish constitutional documents, particularly the Instrument of Government. For instance, if one shifts attention to Swedish judicial bodies, they can easily notice how the last decades have been characterized by a slow but steadily increasing level of judicial activism.^[123] In a considerable number of cases, Swedish courts, particularly the highest ones, intervene and provide a judicially authoritative interpretation of the law that differs from what was previously understood or stated in other legal sources, such as statutory provisions or administrative regulations. Instead, the courts directly draw support for their new course from what they perceive as the foundational structures of the legal system, namely the constitution or the international treaties incorporated into Swedish law through constitutional documents.^[124] A classic example is the relatively recent case where the Supreme Court, basing its decision on the constitution and the constitutionally incorporated European Convention on Human Rights, addressed the issue of double taxation by bypassing the letter of the tax legislation, the established interpretations by previous highest courts, and administrative practices.^[125]

By becoming judicial activists, the Swedish courts aim to operate directly as guardians of the legal system within the general framework set by the constitutional documents and push in the direction of a more legal version of constitutionalism. The constitutional provisions, being beyond the direct control of political powers, serve as a legitimizing source from a legal perspective, justifying the judicial interpretations that bypass the will of political actors and/or previous precedents that somehow aligned with or did not oppose legislative intentions.^[126]

To a lesser extent, it is noticeable that Swedish legislative actors have also begun to introduce constitutional documents as ultimate support for their arguments. Due to the progressive erosion, or at least questioning, of the common substratum of values shared by the majority of the population and their representatives in the national assembly, political actors have increasingly relied on constitutional provisions to bolster their positions in legislative law-making.^[127] More than in previous years, it is becoming increasingly evident, particularly when potential value conflicts are at stake (e.g. freedom of religion versus gender equality), that not only is there debate within the political sphere but also in its legal manifestations within legislative law-making, such as in the preparatory work. Here, various political actors are referring to provisions in the constitutional document, primarily the Instrument of Government, as legal yardsticks for upcoming legislation.^[128]

In other words, the legislative arena has become a primary battleground where divergent and openly conflicting value systems vie for recognition through the enactment of new statutes aimed at protecting and promoting them. As a result, it is almost natural for political actors involved in the legislative process to seek to ‘strengthen’ their respective value systems by positioning them among those guaranteed implementation by constitutional law and its higher legal legitimacy, particularly when compared to the often contradictory and varied landscape of ordinary statutory provisions.^[129]

Finally, in the past decades there has been a remarkable increase in a specific ‘constitutional culture’ within Swedish legal scholarship. This approach takes the constitutional texts as the primary point of entry and exit for major legal issues, questioning their premises and seeking solutions within their framework.^[130] It is worth noting that scholars with a specific interest in constitutional issues have always existed in the Scandinavian country. However, as noted above, until recently their relevance has been limited, either quantitatively (with only a few scholars in the entire country focusing professionally on constitutional law) or qualitatively (with many being compelled, even for career purposes, to conceal their constitutional approach under administrative legal scholarship).^[131]

In the last decades, two significant shifts have occurred in the legal academia, partly due to heightened conflicts within the Swedish community, the increasing impact of EU law on the national arena, and the growing importance of the ‘rights culture’ within legal discourse.^[132] First, in recent years, Swedish legal scholarship has increasingly emphasized the truly constitutional nature of the Instrument of Government, recognizing it as setting the legal boundaries for discussions with the highest legitimizing force. For instance, several recent works focus on issues such as the right to housing or religious beliefs in the workplace or schools from a constitutional law perspective. These discussions use the provisions of the Instrument of Government as their primary yardstick, considering how the constitutional charter addresses the matter and how it should be interpreted, particularly in light of international treaties and conventions.^[133]

Second, in recent decades, there has been an increasing number of Swedish legal scholars who explicitly identify themselves and their work as being within the field of ‘constitutional law,’ marking a departure from previous times when constitutional law was often hidden within the broader topic of public law. Now, it is evident that several specific chairs, positions, and courses at universities are designated for constitutional scholars.^[134] This specialization of constitutional law within Swedish legal scholarship reflects a growing awareness of the central role that constitutional documents play, or should play, in legal discourse and, in particular, in its relations to the political actors will. Constitutions inherently possess a high level of legitimacy within the legal world and are not simply policy documents subordinate to other legal sources, such as ordinary statutes or administrative regulations.

6 Some General Considerations

Before concluding, one can draw some general and often intertwined considerations from Sweden’s transition, in a relatively short period, from a constitutional discourse based on the ideal of political constitutionalism to one leaning more towards legal constitutionalism. First, despite the globalization of law and its institutions, ‘local’ historical, legal, and political circumstances still play a fundamental role in determining what type of constitutionalism a national reality may endorse.^[135] Even within the same political system (liberal democracy) and overarching legal constitutional structures (such as the European Union), legal constitutionalism has been key for certain European democracies in controlling political actors, e.g. in Germany or the EU itself.^[136] Others, however, have left this oversight to self-regulatory processes managed (or at least determined, as in Sweden) by political players themselves. Contrary to what several proponents of the globalization of law have noted, the reluctance of the Swedish constitutional architecture to fully endorse legal constitutionalism, despite heavy pressures from the superordinate EU legal systems, shows that similar political and legal realities do not necessarily push national communities into the same paradigms governing their respective constitutional discourses.^[137]

Second, the Swedish case has shown that changes in the nature of a country’s constitutional discourse do not necessarily travel at the same speed as changes in the deeper constitutional culture upon which such discourse is based. Sweden has been on the path towards the ‘legalization’ of its constitutionalism for quite a while; however, despite all the factors pushing the Scandinavian country in this direction, the constitutional culture of Sweden’s leading political, administrative, and legal actors still tends to be dominated by a political version of constitutionalism. Therefore, when discussing constitutionalism, a distinction must be made between the constitutional discourse’s narrative and its culture, and their different speeds of change in response to institutional and constitutional changes.^[138] The constitutional narrative, as a component of the constitutional discourse, can be defined as the accepted and legitimized kinds of arguments used to control public powers and tends to be more flexible or responsive to changes within the constitutional discourse.^[139] In contrast, the constitutional culture, i.e. the ‘complicated sets of arrangements, institutions, and norms’ upon which such narratives are based, tends to be more rigid or path-dependent.^[140] As Sweden has shown, the narrative behind constitutionalism can change relatively quickly: for instance, the entrance into the EU and its legal system has swiftly shifted the narrative of the relationship between the Swedish highest courts and the political highest bodies in favor of the former as the ultimate interpreter of constitutional norms. However, decades of dominance by the ideal of political constitutionalism have created generations of legal actors in Sweden, particularly judges, who, at least up to now, are unwilling to leave their role as crystallized in Swedish constitutional culture, namely viewing themselves as subjugated to the will of the people and its main representatives in Parliament and government.

Third, with its traditional political constitutionalist approach and its reluctance to fully transition to a legal form, Sweden has revealed the problems of a country in choosing one type of constitutionalism over the other. This dilemma involves weighing the fundamental benefits and risks of exercising ultimate political control over the constitutional charters and their discourse, at least in a well-functioning and established democracy. On one hand, embracing a political constitutionalist model allows for a more efficient display of all the institutional tools available to key players in a democracy, namely political actors, to realize the fundamental values and goals entrenched in the constitution.^[141] Political constitutionalism enables political actors to access all parts and knowledge of the state apparatus, a fundamental requirement when tackling global and deeply affecting issues that democracies confront today.^[142] In facing such tasks, these actors also enjoy (at least potentially) a general legitimacy held by the addressees of such measures, as these actors have been chosen by the people, often under the guise of voters, to tackle such complex issues.

On the other hand, opting out of legal constitutionalism may foster disregard for one of the fundamental reasons for a constitution in a well-functioning democracy: to provide individuals and the collective with a reliable ‘wall’ to control and limit state powers concerning fundamental legal rights.^[143] As recent constitutional history in Hungary shows, shifting towards giving ultimate control to political actors in constitutional discourse may jeopardize one of the raison d’etre of a constitution: the absolute protection of certain fundamental rights.^[144] These rights must be recognized and protected, regardless of the community’s will and its political representatives, and regardless of the circumstances – however exceptional – in which a community may find itself.

7 Conclusions

There are numerous indications suggesting a potential shift in Sweden from political constitutionalism, where constitutional documents possess a patchy legal legitimacy within legal discourse, to legal constitutionalism, where they are treated as overarching binding sources that frame and direct the work of major legal and political actors. However, one should not overestimate the true strength of these signals, at least in the short term. While these hints imply a possible evolution in the role of the constitution in Swedish legal discourse, reality indicates that these highest legal sources are still predominantly treated and used as policy documents in most cases, indicating what should be done rather than what ought to be done.

As highlighted by numerous scholars, the legal discourse and its actors in the Western world exhibit structural inertia, often displaying a degree of path dependence or rigidity towards innovation.^[145] Despite changes pushing constitutional documents towards the realm of ‘truly’ legal sources, Swedish legal actors still tend to revert to a traditional focus on statutory provisions, judicial precedents, and administrative practices as the primary foundations of legal discourse and argumentation.^[146] For example, the rejection of the separation of powers, and the consequent exclusive focus on ordinary statutes (viewed as the product of the ‘will of the people’) as the primary basis for any legal discussion, remains a dogma within the Swedish legal discourse. As noted by Husa, ‘the strong position of the Swedish Parliament remains a fundamental key feature of the Swedish Constitution, particularly when viewed within a comparative analytical framework’.^[147]

In this regard, a noteworthy example is the unique response of Sweden to the emergency posed by the Covid-19 pandemic, at least during the first year of the crisis. Within the constitutional discourse, legal actors as a whole played a relatively weak role, or no role at all, especially when compared to other well-developed democracies. Instead, when it came time to assess the constitutionality of measures implemented by political actors and their administrative apparatus, legal arguments and reasoning often gave way to political considerations and evaluations.^[148]

In summary, one can observe a potential shift in Sweden towards legal constitutionalism, where the constitution is becoming a generally stable foundation for legal discourse, serving as the default starting point for arguments employed by many legal actors. However, when compared to other constitutional realities such as the US, Germany, Italy, or France, the status of Sweden’s constitution still reflects characteristics typical of political constitutionalism: its legitimacy in legal argumentation remains somewhat patchy. While in other well-developed democracies, the constitution is often seen as the primary tool in legal discourse to shape socio-political reality, in Sweden, it is often viewed as a supplementary source used to legitimize changes proposed or enacted through ordinary statutory provisions, administrative practices, or occasionally judicial decisions.

In terms of legal theoretical terminology, one could argue that in other well-established democracies, constitutions tend to be deployed in legal discourses as Joseph Raz’s ultimate reasons for action, serving as decisive and undisputed grounds to win arguments.^[149] In Sweden, constitutional provisions are often still considered and used by legal actors as Ronald Dworkin’s policies or principles: they are viewed as arguments that may (if a policy) or must (if a principle) be considered within a legal issue, but always weighed against other possible counter-arguments and never as an ultimate foundation.^[150]