Field Notes

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Om rättssäkerhet

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Josef Zila’s “Om rättssäkerhet,” Svensk Juristtidning 1990 s. 284–305, is a survey and critique of how Swedish legal writing uses the term rättssäkerhet. The saved snapshot is the journal’s own open-access edition, with the .raw.html companion kept as the provenance copy. Zila published it as a newly qualified jur. kand. and later became professor of criminal law at Örebro, so the article is early work by a scholar who went on to write in the field it surveys.

It is the vault’s grounding source for Rättssäkerhet.

What it establishes

The article’s value is that it treats the concept’s vagueness as the object of study rather than an obstacle to it. Zila opens by borrowing Strömholm’s account of what happened to demokrati: a term elevated into an unassailable meta-ideology loses the precision it once had, and its sacrosanct character makes attempts to define it feel almost blasphemous. He argues the same has happened to rättssäkerhet, with the consequence that a political dispute about a measure converts into a dispute about the word, because no participant can concede that their proposal weakens it.

Four things in it are hard to get elsewhere in one place:

  • The undefined constitutional mandate. Note 4 records that the Lagrådet provision — then 8 kap. 18 § RF, now 8 kap. 22 § — directs review at rättssäkerhetens krav while saying nothing about the concept’s meaning, and that the preparatory works devote no space to it. The rights-protection inquiry behind it, SOU 1978:34 s. 50, offered only that the concept includes, “bland annat,” reasonable opportunity to foresee how society’s rules may affect one’s own position.
  • A dated formal definition from the realist era. Note 9 quotes Per Olof Ekelöf’s 1942 SvJT article — now preserved as Rättssamhälle och rättssäkerhet — holding the value of rättssäkerhet independent of the content of the law in force. This is the earliest anchor the vault has for the term’s availability and shape during Scandinavian legal realism’s ascendancy.
  • The traditional and “modern” split. Zila reconstructs the debate around the commission against economic crime (SOU 1984:15, prop. 1984/85:32), in which protecting citizens from crime was advanced as itself a rättssäkerhet requirement, and records the justitieutskottet’s rejection of the extension as rättsskydd or rättstrygghet rather than rättssäkerhet.
  • A reframing of the formal and material labels. Zila argues the split is really two concepts from different domains: rättens säkerhet, a property of law, against människans säkerhet, the individual’s position as a potential object of state action. His own answer is that rättssäkerhet is a social value rather than a legal category, and that legality is its necessary but not sufficient condition. He closes by discarding the dichotomy outright: a value has no formal and material sides, and rättssäkerhet and legality are two closely related phenomena rather than two faces of one.

The article is a bibliography as much as an argument. It routes to Axberger’s 1988 study, which Zila regards as the most developed Swedish analysis of the concept, to Sveriges advokatsamfunds Rättssäkerhetsprogram (1988), to Peczenik’s Rätten och förnuftet (1986), to Sundberg-Weitman’s Domstolarna och rättssäkerheten (1981), and to Gustafsson’s 1988 study in Tidskrift för rättssociologi.

Source criticism

Zila writes as a participant taking a position, not as a neutral cataloguer: his conclusion that rättssäkerhet is a sociopolitical rather than legal category is contested, and Axberger, whom he treats as the leading formalist, is summarized through Zila’s own reading. Use it for the map of the debate and the primary citations; go to the cited works for what each author actually held.

The date bounds it in a way that matters. The article predates Peczenik’s Vad är rätt? (1995), Frändberg’s “Om rättssäkerhet” (2000/01), Vahlne Westerhäll’s welfare-state development of the material side (2002), Sweden’s accession to the European Union and incorporation of the European Convention in 1995, and the constitutional reform that renumbered the Lagrådet provision. It therefore says nothing about the EU-law register in which rättssäkerhet means legal certainty, which is now one of the concept’s three live senses.

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