Field Notes

concept

Rättssäkerhet

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Rättssäkerhet is the standard Swedish term for the individual’s security against public power exercised through law. It is a direct loan from the German Rechtssicherheit, but it does not keep the German word’s narrow sense. In ordinary Swedish it occupies roughly the ground that “rule of law” occupies in English, and in EU-law Swedish it means what English calls legal certainty. The same word therefore carries three different loads depending on who is writing, which is why this wiki leaves it untranslated and why a note that renders it as one English phrase is usually asserting more than it has established.

The Swedish constitution makes the concept load-bearing and declines to define it. Since 1979 it has appeared exactly once in the constitutional text: Lagrådet’s review of a bill, now governed by 8 kap. 22 § RF, must cover how the proposal relates to the constitution and the legal order generally, how its provisions relate to each other, how it relates to rättssäkerhetens krav, whether it is drafted so the law can be assumed to achieve its stated purposes, and what application problems may arise.1 Josef Zila noted the consequence in 1990: the provision names the requirement and says nothing whatever about what it is, and the preparatory works do not fill the gap either.2

The agreed core, and where agreement stops

Two propositions are effectively uncontested. The concept’s core is the predictability of legal decisions, and its precondition is that public power is exercised under the laws.3 Beyond that the Swedish literature runs in at least three directions, and Zila’s survey found all three represented and freely combined: predictability of the legal consequences of one’s actions; the authorities’ capacity to actually enforce the rules; and reaching a just result within the law in the individual case.4

Zila opened his article by comparing the word’s fate to what Strömholm said had happened to demokrati: elevated into an unassailable meta-ideology, the term lost most of the precision it ever had, and its sacrosanct character made critical discussion of what it means feel almost blasphemous.5 The practical effect is that a dispute about a proposed measure converts into a dispute about the definition, because no participant can afford to concede that their measure weakens rättssäkerhet. Zila’s example is the debate around the commission against economic crime; Raz’s parallel complaint about Hayek’s use of “the rule of law” is the same failure in English.6

Formal and material

The standard scholarly framing splits the concept in two, and the split has a clear Swedish lineage.

The formal account makes rättssäkerhet a property of the legal order and is indifferent to what the law says. Per Olof Ekelöf stated it in 1942 in terms that leave no ambiguity: the value of rättssäkerhet “är oberoende av den gällande rättens innehåll,” since it means nothing other than that life in society is shaped by the rules of the law in force.7 Hans-Gunnar Axberger’s 1988 study, which Zila considered the most worked-out analysis in the Swedish literature, keeps the same shape: laws and legal principles drafted so they can be applied without risk of error in a foreseeable and controllable way, plus a system of application whose functioning can be foreseen and controlled.8

The material account adds a requirement about content. Aleksander Peczenik held that a legal decision satisfies rättssäkerhet only if it is also ethically acceptable, so adjudication and administrative action must rest on a reasoned weighing of norm-based predictability against other ethical values, justice in particular.9 The argument everyone cites for needing the second layer is that a persecuted minority under Nazi rule could accurately foresee its own persecution, which satisfies formal predictability completely, and no one is willing to call that society rättssäkert. Lotta Vahlne Westerhäll later developed the material side in a welfare-state direction, where the question is whether the rights and duties that legislation confers are matched by what administration actually delivers.10

Åke Frändberg’s objection to the division deserves weight. The distinction has usually been drawn pejoratively, with the “formal” value rated below the “material” one, and he urges caution about the split itself. The methodological worry is real: once the material side absorbs whatever ethical commitments the speaker happens to hold, the term stops discriminating between cases and becomes a rhetorical endorsement. Frändberg’s own account starts from the individual’s exposure to arbitrariness and requires that the legal system supply clear and reliable answers to “what applies to me in this situation?”11

Zila argued that the formal and material labels obscure what is really two concepts from different domains. Rättssäkerhet as a legal concept is about rättens säkerhet — a property of law consisting in its unambiguity and determinacy. Rättssäkerhet as a sociopolitical category is about människans säkerhet — the individual’s security as a potential object of state action. On his account legality is the necessary but not sufficient condition of the second, because no legal system can guarantee that those holding power will submit to it; that guarantee is democratic, not legal. He ends by discarding the dichotomy rather than choosing a side: a value has no formal and material halves, and legality is a precondition of rättssäkerhet rather than one of its two faces.12

Protection from the state, or protection from crime

A separate axis matters more than its low profile suggests, because it is the axis most Swedish criminal-policy disputes actually run on.

The traditional concept covers the individual’s guarantees against public power. A “modern” concept surfaced in the 1984 report of the commission against economic crime and the government bill that followed, under which the state’s success in protecting citizens from crime is itself a rättssäkerhet requirement.13 The riksdag’s committee on justice rejected the extension, holding that what the bill called material rättssäkerhet was rättsskydd, rättstrygghet, or effectiveness, and that the traditional sense should be preferred. Sveriges advokatsamfund took the same line in its 1988 programme: the word concerns the design and handling of the legal system, not protection against crime in general.14 Zila read the “modern” concept as an anticipated defence against criticism the commission’s proposals expected to attract — the definitional move made in advance of the objection.

The axis is live whenever a Swedish reform trades defence rights against protection of victims or witnesses. Anonyma vittnen is the current instance: both the reform and its critics claim the word, and they are not using it in the same sense.

Three registers, one word

Register What the word carries Usual English
EU-law Swedish (rättssäkerhetsprincipen) Foreseeability, non-retroactivity, legitimate expectations legal certainty
Swedish legal theory, formal sense Predictability and its structural preconditions legal certainty, formal legality
Swedish administrative law and public debate Procedural correctness and protection against arbitrary power rule of law, due process

The instability shows up in official EU translation, where a Swedish sentence pattern can come out as “legal certainty” in one passage and “the Rule of Law” in the next. In an EU-law context the word is usually the narrow Rechtssicherheit sense; in a domestic Swedish source it is usually the broad one, and a reader has to infer which from context rather than from the word.

In Swedish administrative practice the third register dominates, and it is mostly procedural: legality and objectivity, proportionality, kommunicering and the duty to state reasons, access to appeal, the ban on retroactive criminal law in 2 kap. 10 § RF, and the criminal-process guarantees. The first three are codified together in 5 § of the 2017 förvaltningslag as the foundations of good administration.15 Someone complaining that a handläggning was not rättssäker almost always means procedural defects, not unpredictability.

What the concept does not carry

None of these senses is about whether a court got the facts right.

A tribunal that applies clear, accessible, published rules faultlessly to a factual narrative that is false satisfies the formal account completely. Frändberg’s conditions — adequate and clear rules exist, they are accessible, and the applying organs apply them as intended — say nothing about the accuracy of fact-finding. Zila’s rättens säkerhet says nothing about it either. The material account can be stretched to reach it, but only through the “other ethical values” clause that Frändberg warns turns the term into an endorsement.

Swedish criminal-procedure usage does stretch further. Justitiekanslern’s second project defined the requirement in that setting as confidence that nobody is convicted unless guilt has been proved beyond reasonable doubt, which is a claim about outcomes rather than about predictability or procedure.16 Rättssäkerhet in Swedish criminal cases argues from that outcome-accuracy sense and pushes past it, to whether the system can measure how often it produces false narratives at all. That is a further step, and the note should be read as taking it deliberately.

Rättssäkerhet in this wiki

The word appears across the criminal-justice cluster, usually reported from a Swedish source that is itself using the third register: the external investigation in Adam och övergreppen finding the handling deficient in rättssäkerhet, Billy Butt becoming a public rättssäkerhet cause, the Green Party motion in Swedish lay judges and political influence calling party nomination of the adjudicating panel a risk to it. Those are faithful reports of what the sources mean.

The concept also carries a periodization that bears on Scandinavian legal realism. The vocabulary was available throughout the realist period — Ekelöf wrote about it in 1942, the constitution has named it since 1979, and Peczenik was arguing the material case by 1986, all before Sweden incorporated the European Convention in 1995. What realism supplied was not the absence of the word but a formal definition of it, and a definition holding that the value of rättssäkerhet is independent of the law’s content cannot be used to say that a law’s content is wrong. The material turn is what re-arms the term for that use, and it is Swedish legal theory’s own work rather than an import. Realist foundations of Swedish rättssäkerhet deficits argues from that periodization, and treats the formal definition as a captivity rather than an absence, since Klami records rättssäkerhet working as an important teleological argument for Ekelöf throughout the period the definition governed.

Open work

  • Read Frändberg’s “Om rättssäkerhet”, Juridisk Tidskrift 2000/01 nr 2 s. 269–281, in the original rather than through summaries, and check the rättsbrist, rättspervertering, and rättsmanipulering triad against his own wording.
  • Read Peczenik’s Rätten och förnuftet (1986) s. 48 ff. and Vad är rätt? (1995) for the material account at first hand.
  • Check whether Axberger’s 1988 study is obtainable, since Zila treats it as the most developed Swedish analysis of the concept.
  • Trace rättssäkerhetens krav through Lagrådet’s own opinions to see what content the body has given a term the constitution left undefined.

  1. 8 kap. 22 § regeringsformen, Kungörelse (1974:152) om beslutad ny regeringsform. The five review criteria were first codified in 1979 as 8 kap. 18 § third paragraph, alongside Lag (1979:368) om Lagrådet, and renumbered in the constitutional reform in force from 2011. ↩

  2. Om rättssäkerhet, note 4: the provision states that Lagrådet’s review shall cover how a bill relates to rättssäkerhetens krav, “men därmed är ingenting sagt om begreppets innebörd,” and the preparatory works devote no space to the concept. The rights-protection inquiry behind the provision, SOU 1978:34, offered only that the concept includes, among other things, that everyone should have reasonable opportunity to foresee how society’s rules may affect their own position. ↩

  3. Om rättssäkerhet s. 284: agreement that the core lies in the foreseeability of legal decisions’ outcomes, with the requirement that public power is exercised under the laws as its conditio sine qua non. ↩

  4. Om rättssäkerhet s. 288–289. ↩

  5. Om rättssäkerhet s. 284, quoting Stig Strömholm, “Demokrati och juridik,” in Segerstedt et al., Rättssäkerhet och demokrati (Ratio, 1985) s. 16. ↩

  6. Om rättssäkerhet s. 285–287, quoting Joseph Raz, “The Rule of Law and its Virtue,” The Law Quarterly Review 93 (April 1977) s. 210. ↩

  7. Rättssamhälle och rättssäkerhet (Per Olof Ekelöf, Svensk Juristtidning 1942, s. 15); saved copy. ↩

  8. Hans-Gunnar Axberger, Eko-brott, Eko-lagar och Eko-domstolar (BRÅ forskning, 1988) s. 153, quoted in Om rättssäkerhet s. 290. Axberger’s own framing at s. 142 treats rättssäkerhet as a name for a function in the legal system as a whole, expressing values weighted heavily elsewhere in it. ↩

  9. Aleksander Peczenik, Rätten och förnuftet (1986) s. 48 ff., cited in Om rättssäkerhet note 10; developed in Vad är rätt? Om demokrati, rättssäkerhet, etik och juridisk argumentation (Norstedts juridik, 1995). ↩

  10. Lotta Vahlne Westerhäll, Den starka statens fall? En rättsvetenskaplig studie av svensk social trygghet 1950–2000 (Norstedts juridik, 2002). ↩

  11. Åke Frändberg, “Om rättssäkerhet,” Juridisk Tidskrift 2000/01 nr 2 s. 269–281. His review of Peczenik’s Vad är rätt? is at Svensk Juristtidning 2000 s. 654. ↩

  12. Om rättssäkerhet s. 291, 296–299. Zila’s own position is that rättssäkerhet is a social value, not a legal category, reflected in a society’s awareness of its relative security against public power, and that legality is its causa finalis rather than its definition. ↩

  13. SOU 1984:15 s. 129–130 and prop. 1984/85:32 s. 24, 36, as reported in Om rättssäkerhet s. 286–287, together with the justitieutskottet’s response. ↩

  14. Sveriges advokatsamfunds Rättssäkerhetsprogram (Stockholm, 1988) s. 3, 6, quoted in Om rättssäkerhet s. 287. ↩

  15. 5 § förvaltningslag (2017:900), “grunderna för god förvaltning.” ↩

  16. Rättssäkerheten i brottmål, Justitiekanslern’s second project report (2009). ↩

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