Judicial Activism in Sweden

Abstract

What follows is less a description of judicial activism in Sweden than an attempt to explain its absence. The picture is further complicated by the presence, in Sweden, of an institutional capability for judicial activism, but, despite periodic demands from various groups for a vigorous exercise of judicial review, the capability has remained largely untapped. For a variety of reasons, judges in Sweden have been looked upon more as administrators than as legislators — rule-enforcers rather than rule-makers — and there is a deeply laid fear of judicial involvement on the wrong side of that elusive line which separates political from legal matters. The political implications of a recent New York Times headline, ‘Judges Void New York City Government,’ would, even after due allowance was made for headline-writers’ hyperbole, have sent a frisson down the collective back of the Swedish body politic.¹ Even if the Swedish practice is one of inactivism, it is nevertheless useful to examine it in some detail for what the absence itself tells us about judicial activism’s failure to take root in what would in many respects appear to be fertile soil.