Field Notes

source

An Unlikely Rights Revolution

StatusStableUpdatedStands on1 sourceSupportsnotes

Johan Karlsson Schaffer, Malcolm Langford, and Mikael Rask Madsen’s working paper (saved copy) asks why civil-society groups in Denmark, Norway, and Sweden increasingly turned to litigation from the 1970s onward, given a legal-political culture that should have discouraged it: parliamentary supremacy, deferential judiciaries, strong-state corporatism, and jurisprudential skepticism toward rights talk.

The paper is evidence for the cultural consequences attributed to Scandinavian legal realism. It describes the doctrine as a pragmatic positivist philosophy that “viewed talk of natural rights as metaphysical nonsense and jurists as engineers dispassionately operating the black letter of the law,” and observes that with generations of jurists trained in it, “litigants appealing to fundamental rights in court would hardly be taken seriously.” It also supplies the counterweight: European law, constitutional reforms, and a proliferating rights discourse opened litigation channels anyway, while mainstream organizations often still preferred parliamentary and corporatist routes. In Sweden, the Supreme Court expanded public-authority tort liability for rights violations because the legislator had neglected remedies when incorporating the ECHR.

The saved copy is the authors’ manuscript (titled “revolution”; the SSRN posting is titled “evolution”). A later version appeared in the Journal of Human Rights Practice. The paper is comparative socio-legal scholarship, not intellectual history; its account of realism’s content is secondhand, drawn largely from Strang.

Built on 1 source (1 external).

Working out connections…