Field Notes

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Two Visions of Time

The Different Temporalities of the Rättsstat and the Rule of Law

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Agnes Hellner and Karolina Stenlund’s 2023 article in Scandinavian Studies in Law vol. 69 (saved copy) distinguishes two paradigms in Swedish legal history: the rättsstat, a welfare state shaped by law and administration, in which courts work as instruments of the legislature toward future social goals, and the rule of law, a society molded by rights and courts, in which the judiciary controls the legislature retrospectively. The authors date the gradual shift from the first paradigm to the second from the 1970s to the 2020s.

The article is the vault’s most direct evidence for a channel from Scandinavian legal realism into procedural practice. Citing proceduralist Thomas Andersson, it reports that few disciplines were more profoundly affected by Axel Hägerström than procedural law: Per Olof Ekelöf rejected individual-rights protection as the function of civil procedure in favor of realizing the purposes of substantive legislation (handlingsdirigering — steering behavior so that rules are internalized and followed), leaving courts loyal to, and dependent on, the political branch. Within the rättsstat paradigm, preparatory works were consulted by default, judgments openly pursued the legislature’s purposes, and analogy was used even in tax and criminal law. The article’s claim is structural and interpretive rather than causal in a statistical sense; its procedural-law evidence is drawn mainly from civil procedure and tort, not from criminal adjudication.

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