The Swedish Supreme Courts’ positioning within the public administration

As mentioned above, the Swedish supreme courts, i.e. both the Supreme Administrative Court (in Swedish, Högsta Förvaltningsdomstolen) and the regular Supreme Court (in Swedish, Högsta Domstolen), are considered and consider themselves to be part of the larger public administration within legal and constitutional discourses. As pointed out by several Swedish legal scholars, the highest judges tend to operate as an extension of the public administration into the highest legal instance, rather than as a third party in disputes among public and private entities.Footnote ¹¹ This does not mean that the Supreme Courts tend to deliver decisions in favour of the public administration; more accurately, it means that the judges see themselves as internal reviewers of the public agencies, aiming at shaping a ‘good administration’ according to the criteria set by the legislator, rather than as external referees, determining winners and losers in legal disputes, based on the law in force.Footnote ¹²

A classic example of this positioning within the public administration’s perspective is a series of decisions on tax avoidance made by the Swedish Supreme Administrative Court. The act in force (Act on Tax Avoidance, 1995:575) contains quite general wording and, to some extent, vague terms, in order to capture as many forms of both present and future tax avoidance as possible. As this is the goal of the legislation, the Swedish Tax Agency, in its role as a public agency, has implemented the act in a rather broad way. It has included legal schemes devised by taxpayers, which, though officially created for other purposes, have had the avoidance of taxes as their ‘true purpose’ by lowering total taxable income. In many cases, the Supreme Administrative Court has adopted the same reasoning as the Tax Agency, in this way implicitly considering this agency’s decisions as authoritative when it comes to identifying the ‘true intention’ of the legislator.Footnote ¹³ This understanding of the Tax Agency’s policy documents as having a full-fledged legislative force has gone so far that the Supreme Administrative Court has in some cases simply copied parts of such documents and pasted them into its ratio decidendi. The judges of the Supreme Administrative Court do not then regard themselves as external interpreters of the letter of the law, but instead as reviewers of the interpretation offered by the public agency.Footnote ¹⁴ This attitude on the part of the Supreme Administrative Court is even more peculiar in tax issues, where there is a good deal of potential for maneuvering on the part of the judicial bodies as the true interpreters of the tax legislation due, for instance, to a constitutional discourse which construes the legality principle, nullum tributum sine lege, in a way which is rather restrictive for the public agency’s operations. Similar cases and modus operandi can be detected also in the regular Supreme Court, for example when it comes to regulation of the financial market and the opinions expressed by Sweden’s Financial Supervisory Authority (in Swedish, Finansinspektionen) or to criminalisation of drug offenses and the tables provided by the Judicial Agency (in Swedish, Domstolsverket).Footnote ¹⁵

It should further be noted (though this will not be investigated in this work) that this positioning (on the part of both the judges and the outside actors) of the supreme courts as public agencies, in its turn, fuels another shift: the perception of public agencies not simply as ‘implementers’, but also as authoritative ‘interpreters’ of the law. It is rather common that public agencies autonomously produce and advertise on their websites policy documents regarding how various legislative provisions should be interpreted by the recipients of the administrative services.Footnote ¹⁶ As mentioned above, such policy documents are used (and not rarely) by the supreme courts as the legal bases for their decisions, as if they were legally binding documents when it comes to legal interpretation. In other words, there is a perception of the role of judges as a compliance agency with regard to public administration decisions, which in turn stimulates the public agencies to operate not only as executive actors, but also as quasi-judicial ones.Footnote ¹⁷

Public servants, civil servants, and judges

The discussion above revolves around the positioning (or not) of the Swedish supreme courts among public agencies and, consequently, the issue of judges being seen – and seeing themselves – as civil servants, rather than as ‘real’ judges. A public servant is anyone who ‘serves the public’ and is hired by either the state or a local government; thus, it includes these judges.Footnote ¹⁸ A civil servant is part of the public service, but the term encompasses a much narrower category, as it identifies staff working in the public administration, i.e. the apparatus of the state specifically devoted to the ‘management of public programs’.Footnote ¹⁹

In this respect, one can identify several points of divergence between the ideal figure of the judge, in particular the judge serving on a supreme court, and that of the civil servant in a democratic state. First, from an institutional perspective, the primary task of the civil servant is to implement the directives promulgated by the legislative bodies, e.g. in the form of acts or through other regulatory means. The main task of a judge, meanwhile, is to evaluate whether the various regulatory provisions are respected with regard to both private citizens and civil servants and, in some cases, to issue sanctions. In other words, while the goal of the civil servant is to transform politics into concrete actions, the judge’s duty is to settle the disputes that these transformations may give rise to.Footnote ²⁰ As a consequence, while the institutional positioning of a civil servant should be in a direct functional relation to the executive power and its administrative apparatus, the placing of a judge should, insofar as possible, guarantee her/his independence and impartiality in relation to all potential parties, i.e. including the state and its public administration.Footnote ²¹

Second, from a structural perspective, the difference in primary tasks means that the judge and the civil servant tend to be positioned in different places in relation to the legislative bodies. The civil servant is considered, and often considers her- or himself, as the executive hand of the politicians in the national assemblies, while the judge, in particular if at the pinnacle of the judicial system (e.g. in one of the supreme courts), tends to be placed, and places her- or himself, outside such a relation. She or he ideally aims at being an external referee of all interactions between private and public entities, ensuring that these processes operate within the boundaries of the law, in particular in the role as the ultimate interpreter of what the law states.Footnote ²²

This distinction is not only ideal-typical (i.e. not directly related to the everyday realities), it is also rather rough and in many regards quite unsophisticated. For instance, it attempts to paint within the same picture and in a monochromatic way, namely under the label of ‘Western’ or ‘Western-inspired’ democracies, quite multi-coloured and diverse constitutional and political realities. As an example, one could consider the deep differences in both structural and institutional aspects between supreme courts in the United Kingdom and those in Germany, in particular in their relations to their respective legislative bodies.Footnote ²³ Despite this, the ideal-typical features mentioned above as characterising the judge, in particular at the highest level, as a figure distinct from the body of civil servants in the constitutional architecture, can be a helpful analytical tool. These features are in some way functional to the goal which each legal and constitutional architecture operating in a democracy should strive for: to build a system where the politicians elected to parliament, while representing the people and having at their disposal the entire administrative apparatus, see their actions always under the check of the law’s guardians, i.e. the judicial bodies.Footnote ²⁴ In short, these features separating a judge from a civil servant should be considered as general ideals that in practice would work as guiding lights towards which each Western or Western-inspired democracy should aim, though they come from different directions and follow different paths.

Why did Swedish judges become civil servants?

The idea that the judges serving on the supreme courts in Sweden consider themselves, and are regarded by the external world, as an extension of the public administration, has extremely complex origins. However, it is possible to sketch at least three fundamental, interconnected and mutually reinforcing sets of reasons, related to factors of a political, legal, and purely administrative nature.

As the first set of reasons, one can point out the Swedish or social-democratic version of the welfare state.Footnote ²⁵ The basic goal behind this political model consisted in transforming the state into the ‘house of the people’ (in Swedish, folkhemmet), i.e. to render the state and its apparatus servants of the citizens, who should feel ‘at home’ when dealing with public authorities.Footnote ²⁶ This model requires the building of ‘a home’, that is the creation of a well-articulated public apparatus which, through deep integration and coordination of all its components, could realise the social and economic equality of all citizens. The law and its actors are considered and used as essential parts of such a construction, but are of a ‘soft’ nature. This expression simply means that within the Swedish concept of the welfare state, the implementation of welfare ideals into society has to be done mainly by using legal regulatory tools, e.g. taxation law.Footnote ²⁷ However, in order to be used for implementing such a non-legal value (a welfare eco-political model), the legal instruments, culture, and actors must be ‘softened’. The legal discourse and its main actors have to be ready and willing to see their basic principles and dogmas moulded or bent in all cases where such legal paradigms conflict with principles of a non-legal nature, as indicated by the political actors through the legislation and as implemented by the civil servants.Footnote ²⁸ For example, as previously mentioned, the judges of the Swedish Supreme Administrative Court must be ready to see their dogma of legal certainty in taxation matters ‘sacrificed’ at the altar of the political and social ideals of equal redistribution through taxation, as interpreted and implemented by the Swedish Tax Agency in its attempt at capturing all incomes obscured through complex taxation schemes.Footnote ²⁹

The incorporation of judicial bodies within a strongly integrated system to promote implementation of socio-political values has also been reinforced by one of the causes (or effects) of the success in Sweden of this welfare state model. The Swedish model is rooted in (or, according to other interpretations, created) an environment with a relatively low level of political, social, and economic conflicts. In its turn, this environment is based on the idea (and, at least until recently, also the reality) that most of the major public and private entities agreed on the fundamental values to be implemented through the political system and its laws.Footnote ³⁰ It is easy to understand how the need of a high court operating as a ‘third’ party, i.e. as an independent ‘explicator of the law’ among radically conflicting and diverging potential interpretations and implementations, vanished in this rather value-homogenous landscape, unlike in other systems with greater tensions.Footnote ³¹

The second set of reasons why Swedish supreme courts operate as civil servants rather than as independent judicial bodies is connected to the Swedish constitutional architecture and discourse, which are the result of a welfare state with strongly integrated legislative, administrative, and judicial components. Starting with the Swedish constitutional architecture, one of its major components is a refusal of the principle of division of powers, unlike in most countries among the so-called Western-style democracies. Instead, there is an endorsement of the separation of functions.Footnote ³² Legal actors have traditionally taken a rather strict interpretative stand when it comes to the first paragraph of one of the Swedish constitutional documents, namely the Instrument of Government, 1974, Article 1 (‘All public power in Sweden proceeds from the people […] It is realised through a representative and parliamentary form of government and through local self-government’). As a result, the Parliament, that is the primary legislative law-making agency, is regarded as the only true power being the only one representing ‘the people’, and, in turn, it delegates the other two judicial and executive functions to the courts and the public agencies.Footnote ³³

It is natural that the courts, operating in this kind of constitutional architecture, do not perceive themselves (and are not perceived by the other legal actors) as an autonomous power, whose goal is to evaluate whether the public and private entities operate in accordance with the law. Instead, the courts, including the supreme courts, consider themselves as ancillary bodies, serving to review that the actions of private and public entities observe the will of the highest and only power, the Parliament. In other words, due to the rebuttal of the principle of separation of powers, the judges, including those on the highest benches, tend to operate not as third parties, but as part of the executive body. They are civil servants aiming at fulfilling, insofar as possible, the will of the people, as expressed by the one and only power: the legislative one.Footnote ³⁴

As another factor contributing to supreme court judges viewing themselves as civil servants rather than judges, one should add a feature of the Swedish constitutional system: the lack of a proper constitutional court and the rather ineffective constitutional review procedure. As comparative and historical scholarships have shown, the presence of a strong constitutional court usually makes waves strengthening the judicial bodies and work throughout the entire legal system. In particular, a constitutional court increases the legitimacy of a widespread judicial control of the political work, i.e. a sense shared by all the judges (even at lower levels) that one of their primary duties is the evaluation, as external actors, of whether private and, even more importantly, public entities operate in accordance with the law.Footnote ³⁵ Leaving aside the historical and institutional reasons for such ‘deficiencies’ in this Scandinavian country, the lack of a proper constitutional court (with its self-legitimising power, for the entire judicial body, as a guardian of the law) has, in the Swedish legal discourse, led to a devaluation of the constitutional role of the supreme courts in the public law area (e.g. their focus on the protection of intangible rights for individuals) in favour of their administrative function (e.g. focusing primarily on finding the ‘true’ intention of the legislator when facing unclear legislative issues).Footnote ³⁶

The third reason for the Swedish supreme courts’ self-perception as an integral part of the public administration has a purely administrative nature, being based on the specific career system a judge has to follow in order to be likely to be selected to serve on such a court. A widespread and established recruitment policy is that a judge applying for a position in a supreme court has better chances if she or he can show a few years’ working experience from within the Department of Justice (in Swedish, Justitiedepartementet) or (to a lesser extent) the Government Offices (in Swedish, Regeringskansliet).Footnote ³⁷ This requirement is justified by the idea that, having spent time within the Department of Justice, the candidate will have had the chance to gain deeper knowledge of all aspects of legislation – not only its interpretation, but also its creation (as the Department of Justice is the place within the state apparatus where acts are usually drafted) and its implementation (as the department is part of the executive structure of the state).Footnote ³⁸

This reasoning may be correct, but the prerequisite of having served a few years among civil servants leaves obvious traces in the way that future Supreme Court judges view themselves and their position within the state apparatus. Such a judge enters the Supreme Court for a life tenure position (lasting until the mandatory retirement age of 67) with strong ties to the administrative apparatus. First, she or he has, during her/his time at the Department of Justice, developed professional and personal networks within that department and the other departments forming the core of the state administration. Even more importantly, the future judge of the Supreme Court is usually rather heavily influenced by the culture permeating her or his years within the public administration.Footnote ³⁹ She or he tends to have a civil servant’s perspective, rather than a judicial one, when approaching legal issues: aiming at finding the solution that in the best way will implement the will of the legislator rather than, in the words of H.L.A. Hart, solving them from the perspective internal to the legal system.Footnote ⁴⁰

This custom in the recruitment process to the Swedish supreme courts, which moves the judges closer to the civil servants’ mind-set, was reinforced by a recruitment procedure used up until the constitutional reform of 2011, that rarely allowed any ‘outside-the-administration’ candidates to reach such courts. Before 2011, judges were appointed to both supreme courts by the Government, in a closed, non-competitive procedure and without formal processing by an external body. This was not seen as an intrusion of the political power into the recruitment process. Rather, the constitutional praxis was that judges within the supreme courts would search for potential candidates from a pool of candidates with a strong administrative experience and indicate their future peers to the Government, which would almost always adopt these suggestions.Footnote ⁴¹

For these three reasons, the judges sitting in the Swedish supreme courts tend to consider themselves and operate as civil servants, rather than as a third party in the legal issues brought to them for evaluation. However, it is necessary to point out that this positioning among the civil servants, i.e. among the actors with the primary task to implement the political will as expressed in the legislation, does not render the Swedish supreme courts more ‘political bodies’.Footnote ⁴² First, at least in a fully accomplished democratic system like the Swedish one, the civil service tends to be independent from the government, from an institutional perspective: it is composed mainly of career bureaucrats, who are hired on professional merits rather than being appointed or elected. Moreover, their institutional tenure typically outlasts the frequent transitions of political leadership and their careers are based on their professional performances, i.e. accomplishments measured according to criteria internal to the administrative apparatus (such as their efficiency) rather than external (e.g. political affiliation).Footnote ⁴³

Second, the de-politicisation of the Swedish civil service, that is its robust autonomy from the control of political parties, is also reinforced by a legal feature strongly demarcating the relationship between the legislative function (as both Parliament and Government) and the public agencies (i.e. the administrative apparatus outside the departments). The Swedish constitutional document of the Instrument of Government clearly prohibits ‘ministerial rule’ (in Swedish, ministerstyre) over the public agencies in performing their primary task: implementing the law.Footnote ⁴⁴ In this respect, the dualistic character of the Swedish public administration, where there is a clear division in both organisation and accountability between the departments and the administration, means that, while the rather minimalistic governmental departments are under the direct control of the competent minister, the vast number of administrative agencies under these departments, through which the overwhelming majority of the administrative functions are performed, operate autonomously.Footnote ⁴⁵ For various historical, political, and structural reasons (which cannot be discussed here), this prohibition of ministerial rule over the public administration is firmly respected by both (often reluctant) politicians, public agencies and, last but not least, administrative courts.Footnote ⁴⁶

The political influence over the public administration in general is thus rather limited in Sweden, making it in practice a two-power system, where administrative practices tend to have a strong quasi-legislative status in many areas of both private and public law, from the control of the financial market to welfare law issues. As a result, the positioning of the supreme courts very close to (if not within) the area of civil service does not bring with it a politicisation of their work and culture, but rather their being considered a component within the strongly independent and powerful Swedish public administration.

The Swedish Supreme Courts on the move

Thus, the picture is rather clear: judges operating in the Swedish supreme courts tend to perceive themselves, and to be identified by others, as civil servants – and to operate as such (i.e. they aim at finding the best way to implement the true meaning of the legislator’s intention) rather than as ‘real judges’ (i.e. focusing on assessing the law applicable to a dispute). However, in recent years, some small but mutually reinforcing signals indicate that this is changing, and that the supreme courts are moving closer to the core of the judicial role, operating as a third party in disputes among private and public entities.

First, in recent years, the supreme courts (in particular the regular Supreme Court) have become more active.Footnote ⁴⁷ In many cases, they offer an authoritative interpretation different from that of other actors, especially the one provided by the administration. They find support for their new course in the foundational structures of the legal system, e.g. the constitution and international treaties. In short, they consciously and explicitly take upon themselves a power that in Sweden has been traditionally left to other institutional actors, e.g. the public administration.Footnote ⁴⁸ In doing so, the courts are guided by the idea that their primary role is neither to find the true intention of the legislative bodies nor to review the work done by the public agencies. Instead, they intend to act as guardians of the legal system as a whole, by positioning themselves as a third party and solving disputes in the light of fundamental legal principles which have not been contemplated by the legislative bodies and which have been neglected in administrative practice.Footnote ⁴⁹

Second, Sweden’s entry in 1995 into the EU and the role that the European courts play have considerably strengthened the process of hardening of the law in Sweden, i.e. of making the law more difficult to adapt to non-legal (e.g. political or financial) goals. In particular, being part of the European legal system has, in the Swedish legal discourse, highlighted the inalienable and absolute nature of certain individual legal rights and the corresponding unconditional duty to operate (or not to interfere) on the part of public entities, in primis (but not solely) the administrative apparatus.Footnote ⁵⁰ This influence has contributed to a general growth in the Swedish legal, political, and social environments of a ‘rights culture,’ where rights are seen in a more Anglo-American sense. They are seen as legal qualities assigned to individuals, that ought to be protected by the judiciary, regardless of what the national statutory provisions prescribe or what the administrative practices indicate.Footnote ⁵¹ In this situation, and paralleling the role of the judiciary in the Anglo-American reality, the supreme courts are required more than ever to operate as a third and truly independent judicial body, in order to guarantee these rights, in particular in relation to the actions of other public authorities. It is worth mentioning that this rights culture has started peeping through, not only in the Supreme Administrative Court, but also in the regular Supreme Court in areas usually disconnected from the idea of rights, at least in the Swedish legal discourse, e.g. commercial or contract law.Footnote ⁵²

One can observe a third signal, of a more political nature, partially resulting from the EU membership, which pushes the Swedish supreme courts closer to a more judicial role in the constitutional architecture. Like many other places in Western Europe, Sweden is increasingly portrayed as being on the way towards becoming a post-welfare system.Footnote ⁵³ Leaving aside an in-depth discussion as to what characterises this situation, it is nevertheless necessary to draw attention to the fact that the post-welfare society has as one of its central dogmas a strong idea of the rule of law (or ‘government by law’ or Rechtsstaat).Footnote ⁵⁴ This implies a moving away from the traditional Swedish model of the welfare state and its basic idea that legal actors, and in particular the judicial bodies, should consider and use the law as structurally soft in relation to the values expressed by the political environment and implemented by the administrative apparatus. In a post-welfare system, it is the other way around: the political, social, and economic discourses are perceived by judges as generally bending when conflicting with fundamental legal principles, either explicitly in the constitutional documents or through the legal system. Non-legal programmes are supposed to give way when confronted with general legal principles like legal certainty or equality before the law, but also when encountering private legal principles, like ‘good faith’ or ‘equality between contracting parties’.Footnote ⁵⁵ As a result, the judges operate as a true third party in the disputes, as their focus is mainly inserting and evaluating the disputes under discussion, not in relation to political will or administrative practices, but rather in relation to the systems of rules and fundamental principles superseding the legal system.

The fourth component indicating a shift of the Swedish supreme courts towards a more judicial role has to do with the changes which took place through a constitutional reform in 2011. Among other innovations, the reform introduced a new system of recruitment to the higher courts.Footnote ⁵⁶ In particular, the process has become competition-based (i.e. an open call is made, advertised as a vacant position for which anyone can apply) and is led by an independent authority, namely the Judicial Board (in Swedish, Domarnämnden), where five of the nine members are (or have been) judges. This Board receives advice from the supreme courts, but this is not binding (as has been shown several times); meanwhile, the Board’s suggestions to the Government, though not binding, carry a certain legal weight since the Government is required to consult the Board again if it is considering appointing someone not nominated by this panel.

This system has brought with it two novelties, both strengthening the idea of the supreme courts as true and independent judicial bodies. First, the reform of the entire recruitment procedure has sent out a clear signal, immediately recognised by the judges both within and outside the higher courts, that the institutional independence of the Swedish supreme courts within the constitutional architecture has been strengthened, in particular in relation to the political parties.Footnote ⁵⁷ Second, as the new system is based on an open competition, it has encouraged candidates from outside the usual ‘judge-formed-in-the-Department-of-Justice’ model. In particular, a relatively high number of candidates coming from the private sector (e.g. lawyers from big law firms) or from academia (e.g. professors in criminal law or in constitutional law) have successfully applied for vacant positions in recent years.Footnote ⁵⁸ As a result, this new open recruitment procedure has led to the instalment as judges in the Swedish supreme courts of prominent jurists whose professional cultures and networks are quite far from the civil servants’ world.

Finally, there is an indication of a more general and societal nature that the positioning of the supreme courts in Sweden may be moving closer to the judicial core. The Swedish political, social, and financial atmospheres have changed considerably in the last decade, becoming more conflictual. The fragmentation of the community (or, more accurately: the surfacing of pieces of community that were formerly hidden) has forced the Swedish legal world into a new position.Footnote ⁵⁹ Today, the legal arena is home to a plurality of value systems, which often stand in competition (if not in conflict) with each other in trying to gain recognition in the arena. A classic case of this is the debate between proponents and critics of private religious schools being financed with public money.Footnote ⁶⁰ As an immediate effect, the need for truly third party judges at the top of the judicial body is felt ever more strongly. In such a climate of value conflicts, supreme courts must often position themselves outside the various political, financial, social, and administrative systems in order to decide which value system is to be defended, based exclusively on the valid law and not, for instance, on the often confusing intentions of the legislative bodies or the conflicting practices developed by the various public agencies. As recently pointed out in a joint-editorial by the Presidents of both the Swedish Administrative Supreme Court and the regular Supreme Court, the legal world is not only at the centre of this never-ending battle among different value systems.Footnote ⁶¹ Even more importantly, Swedish positive law is considered and used by the higher courts as a connecting point for such systems, with the decisive role of offering (at least in its intentions) ‘objective’ criteria for determining which value system is to prevail and be used as the lawful one.Footnote ⁶²

While there are many indications of a possible shifting of the supreme courts from the public administration’s culture to the ‘real’ judicial one, one should not overestimate the true strength of these signals. If, on the one hand, all these hints suggest a possible evolution of the institutional and cultural positioning of the Swedish supreme courts, reality, on the other hand, indicates that these highest judicial bodies still have a foot and a half within the world of public administration. Generally, as pointed out by many scholars, the legal discourse and its actors in the Western world are characterised by structural inertia: legal culture usually presents a certain degree of path dependence or rigidity towards innovation and repositioning of entities on the legal map.Footnote ⁶³ More specifically, in the case of Sweden, two of the factors which have made the Swedish supreme courts lean towards the administrative pillar remain rather strong. First, separation of functions (instead of separation of powers) is still a dogma within the Swedish constitutional discourse and there are no indications that it is going to fade within a foreseeable future, unless there are quite unexpected radical reforms to the Constitution.Footnote ⁶⁴ Second, despite the attempt through the 2011 constitutional reform at broadening the recruitment of supreme court judges to sectors of the legal world beyond that of the traditional career judges, one can observe that the majority of the judges in the courts still come from those ranks.Footnote ⁶⁵ Moreover, the recruitment policy of giving preference to those who have worked at the Department of Justice stubbornly remains one of the fundamental selection criteria.