Vol 3 1999 - Article

The legal code in Sweden

Jodie-Ann McRae  

Introduction

The development of the Swedish Legal Code is closely tied to the political and economic life of Sweden. Sweden is situated on the borders of Western Europe and has never been subject to forcible foreign rule.<1> Laws, by their very nature, reflect the society in which they are created, that is, they are the 'moral rules' in which a society reflects its very nature. Sweden carries its own unique history and, with it, its own unique legal system. Overall, this essay will attempt to examine the Swedish Legal Code, however, this examination will concentrate on the Swedish Criminal law because of the vast nature of Swedish legal system.  By way of explanation, the Swedish Code, hereafter called 'the Code', will be compared to the Australian Criminal system. This essay will examine, firstly, the nature of codification, secondly, the historical background to Swedish law and, finally, the Swedish Code system.

The code system explained

A Codification attempts to exhaustively cover a system of law, or an area of law as it existed at the time the code was enacted. Thus, the Code is the Swedish development of a uniform list of crimes stated in one Act. By way of comparison, the Australian system is a hotch-potch of code and common law States. That is, four States have adopted a criminal code and four States have a system of common law and statutes covering our criminal laws.<2> Common law, for those not familiar with the legal system, is an unwritten law derived from the traditional law of England as developed by judicial precedence, interpretation and modification.<3> In recognition of the inconsistency in criminal laws throughout Australia, a Standing Committee of Attorneys-General was convened in 1990 and the question of the development of a uniform criminal code for Australian jurisdictions addressed. A Commonwealth 'Model' Criminal Code<4> was developed by all the Attorneys-General in 1995, however, it remains merely a model for States and not binding upon them. The Australian States, through the Commonwealth Constitution,<5> only have power over the making of State criminal laws.

Historical background to the Swedish legal code

During the 11th and 12th centuries, Sweden was divided into separate provinces, each with their own system of provincial laws. As this period preceded the compilation of written texts, these laws were memorised and handed down to each successive generation via an oral tradition. The memorised laws were then interpreted by the provincial leader, known as a lagman, for the people gathered at a popular assembly, known as a ting. Thus, the ting was an mediaeval example of a court. As written texts were developed, the lagman then compiled records of these customary laws.  Thus, official Codes, known as the lagbok, were developed as early as the 13th century, from the private records of the lagman.<6> These mediaeval Codes, developed from the 13th century on, contained any new provisions at the time of codification and the traditional provincial rules retained for centuries, although the provincial laws were compiled under a separate title called the tingmålabalk or the rättengångsbalk.  Within this early Code, laws were placed under appropriate subject headings, for instance, marriage rules were placed under the heading of family law or giftermålsbalk.<7> Within this general Code there was a Rural Code, or allmänna landslagen, and an Urban Code, or allmänna stadslagen. These provisions were drafted during the reign of King Magnus Eriksson<8> and passed at the end of the 14th century.Sweden remained a collection of self-governing provinces until the 16th century.<9> However, the collection of the first legal codes in the 12th and 13th centuries laid the ground work for a unified Sweden, with one law governing all of Sweden.

In 1686, the task of revising the mediaeval Code was begun, however, it was not until 1721 that the first revision draft was handed to Sweden's Parliament. The final draft of the Code was passed by Parliament in 1734. The Code of 1734,<10> was divided into two parts, the 'Book of Offences' and the 'Book of Punishments'.  The Book of Offences regulated the course of litigation up to final judgement and this was called the rättegångsbalk. The Book of Punishments regulated both the security measures and modes of execution following final judgement and this was called the utsökningsbalk.<11> Revision of this Code was commenced in the early 19th century. In 1864, this 1734 Code was replaced by the Penal Code of 1862.<12> However, this was not a comprehensive reform of the 1734 Code, but merely a revision of the procedural rules. It was not until 20th century, that overall reform took place.

Comprehensive reforms were commenced in 1911, however, it was not until 1965 that the present Penal Code of 1962<13> came into force. The provisions which regulate the enforcement of criminal justice are held within the Code under the Code of Judicial Procedure.<14>

The Swedish code examined

Sweden's Code is the unification of criminal justice from the beginning of Swedish history. As previously discussed, Sweden's, general Code dates from before 1700, but has been revised several times since that time.

The Penal Code is the underpinning of the Swedish criminal system.  The Code contains general provisions on crime, responses to crime, and specific provisions regarding the major offences and basic regulations of the existing penal measures. As well as the Code, there are various other statutes which regulate other offences, such as traffic, revenue and the police force.<15> The Swedish Code is separated into three parts, each part, in turn, is broken into chapters and each chapter is divided into sections. Part one, basically, contains the definitions of crimes, sanctions and also contains the boundaries for the application of the criminal law.  Part two outlines specific offences and ends with two chapters on attempt, preparation, conspiracy, self-defence and other acts of necessity.  Part three encompasses the penal measures, principles of the assessment of penalties and the administration of criminal justice.<16>

The provisions which regulate the procedure and enforcement of criminal justice are held within the Code under what is known as the Code of Judicial Procedure. This Code encompasses both civil and criminal proceedings.  The Code of Judicial Procedure, has seven principal divisions which are summarised as follows: (1) defines the composition and organisation of the judiciary; (2) defines matters of procedure and, specifically, the general regulations applicable to proceedings at every level;  (3) defines the rules of evidence; (4) specifies the rules of procedure applicable in the Lower Courts; (5) specifies the rules of procedure applicable in the Courts of Appeals; (6) specifies the rules of procedure applicable in the Supreme Court; and (7) contains regulations governing relief from judgements and orders when ordinary legal remedies are subject to time limitation.<17>

Footnotes

* Most of the relevant Internet sites are, unfortunately, in Swedish. So, as I do not speak Swedish, they are not very helpful.  The two from the Swedish Parliament were useful in tracking down the relevant information, and I have attached them for reference.
<1> Andersson, 1955, p 53.
<2> Waller and Williams 1997, p. 21.
<3> Nygh  and Butt, 1997, p. 72.
<4> Model Criminal Code 1995 (Cwth).
<5> The Constitution 1901 (Cwth).
<6> Bruzelius and Gingsburg, 1968, p. 2-3.
<7> Bruzelius and Gingsburg, 1968, p. 3-4.
<8> 1319 to 1365.
<9> Andersson, 1955, p. 58.
<10> Penal Code of 1734 (Sweden).
<11> Bruzelius and Gingsburg, 1968, p. 4-5.
<12> Penal Code of 1862 (Sweden).
<13> Penal Code of 1962 (Sweden).
<14> Bruzelius and Gingsburg, 1968, p. 4-5.
<15> Strömholm, 1981, p. 136-137.
<16> Strömholm, 1981, p. 137-138.
<17> Bruzelius and Gingsburg, 1968, is the English translation of the Swedish Code of Judicial Procedure.

References

Andersson, I.A. (1955), A History of Sweden, Weidefield and Nicolson, London.
Bruzelius, A. and Gingsburg, R.B. (1968), The Swedish Code of Judicial Procedure, The American Series of Foreign Penal Codes, vol. 15, F.B. Rothman and Co, USA.
Nygh, P.E. and Butt, P. (eds) (1997), Butterworths Concise Australian Legal Dictionary, Butterworths, Sydney.
Strömholm, S. (1981), An Introduction to Swedish Law, vol. 1, Kluwer, Netherlands.
Waller, C. and Williams, L.(eds) (1997), Brett, Waller and Williams: Text and Cases, 8th edition, Butterworths, Sydney.
Legislation
Model Criminal Code 1995 (Cwth).
The Constitution 1901 (Cwth).
Penal Code of 1734 (Sweden).
Penal Code of 1862 (Sweden).
Penal Code of 1962 (Sweden).
Internet
http://www.riksdagen.se/index_en.asp
http://www.uni-wuerzburg.de/law/sw_indx.html