Domarrollen : Rättsregler, yrkeskultur och ideal

Detta är en avhandling från Uppsala : Juridiska institutionen

Sammanfattning:  The role of judges has not previously been systematically analyzed in Swedish legal research. Rather, legal scholarship has focused on the role of courts as institutions in the legal system. This is despite the fact that legal education in Sweden is often said to be focused on the methods used by judges when dealing with cases.The aim of this dissertation is to consider the professional position of judges in Sweden by applying an interdisciplinary approach. This is done by combining the legal and constitutional notions of judicial independence with theories on professionalization and de-professionalization. Empirically the investigation is based on a constitutional and historical analysis as well as in-depth interviews with eighteen Swedish judges, thereby taking a broad methodological approach. The main conclusion is that actual judicial independence can not be attained solely by legal means and instruments. In fact, legal culture (as defined by the Finnish legal scholar Kaarlo Tuori) and judicial culture (as in professional culture) are more important for the existence of judicial independence than legal rules alone. Thus, professional values are often a more important guarantee of judicial integrity, professionalism and good judgment than constitutional or legal rules. However, legal rules can be a gauge as to how judicial independence is valued and ascertained in a specific legal culture.In Sweden, the judicial professional culture has been closely linked to the executive branch of government since the early 17th century. From a constitutional perspective, this raises questions concerning the independence of the judiciary vis-à-vis the executive and, perhaps more importantly, how judges perceive themselves and their role in the larger context of the Swedish legal order and legal culture. Are judges thus the agent of the executive, the protector of civil rights, the arbitrator of disputes, or something else?Furthermore, some recent developments in administrative management have put courts and judges under pressure. Often labeled New Public Management, these tendencies have conveyed a greater focus on the economic efficiency of public management, including auditing, management by objectives, and decentralization. This focus on management and economic efficiency threatens to infringe on professional autonomy and thus on judicial independence. However, this development is somewhat countered by other developments in Swedish legal culture, notably the influence of European human rights and community law.

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