Jura Novit Curia : En rättsgenetisk undersökning av den juridiska metodlärans utveckling under 1800-talet

Sammanfattning: Under Swedish law, the courts must clearly, independently of the parties’ legal arguments, both define and resolve any legal questions raised in the case in accordance with the applicable law. This is the general meaning of the principle, jura novit curia, a principle common to most European jurisdictions. Under Swedish law, a legal decision must be in accordance with the applicable law defined as the law-in-force, geltendes Recht or gällande rätt, the latter a concept found within Swedish legal methodology. The concept of law-in-force therefore is not simply at the core of any litigation. As a definition of the law, it constitutes an objective for both legal practitioners generally as well as mainstream legal science.Despite being perceived of as a well-known and self-evident principle to Swedish lawyers and academicians, the concept of law-in-force is complex, with many theoretical and practical implications. A better understanding of this concept is arguably achieved through an investigation of the historical developments leading up to its introduction in Swedish legal methodology, the concept’s underlying goals and considerations, as well as its immediate effects. This dissertation provides such an investigation, with a main focus on the influence of the German Historical School of Jurisprudence on Swedish legal methodology during the 19th century. Finally, it is argued that the principle of jura novit curia provides a suitable framework for such an investigation.