Swedish Administrative Law

Author(s): Nils Herlitz

Source: The International and Comparative Law Quarterly , Apr., 1953, Vol. 2, No. 2
(Apr., 1953), pp. 224-237
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law

Stable URL: https://www.jstor.org/stable/755786

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide
range of content in a trusted digital archive. We use information technology and tools to increase productivity and
facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at
https://about.jstor.org/terms

and Cambridge University Press are collaborating with JSTOR to digitize, preserve and extend
access to The International and Comparative Law Quarterly

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
 SWEDISH ADMINISTRATIVE LAW

I. General

IN Sweden we do not hesitate to speak of administrative law as

distinguished from civil and criminal law: the word forvaltningsrdtt
is admittedly not very much more than 100 years old, but in earlier
days the term politi- och ekonomirdtt (in German, Polizei- und
Okonomirecht) had the same meaning. Administrative law is
understood to include, roughly speaking, all rules concerning public
administration: the organisation, procedure and powers of adminis-
trative organs, administrative activity in its entirety, and the rights
and duties of citizens in connection therewith. Administrative law
is regarded as a part of public law. When we speak of law (rdtt,
cf. German Recht) we mean not only statute law and judge-made
law-which is far from playing the same role as in Anglo-Saxon
countries-but also statutory instruments made by the King in
Council according to statutes and regulations made within the
framework of the Royal Prerogative (Constitution, art. 89).
Administrative law consists of a number of statutes and
regulations relating to special fields of administration or special
agencies. There is no codification of its general part I.2).1 A
general statute on appeals (see below and IV 2) is, however, being
prepared; also some sort of general legislation on administrative
procedure is under active consideration (cf. VII).
Swedish administrative law regulates all these matters fairly
exhaustively; we are far from the idea that, as a rule, the activity
of administrative authorities and the relations between the citizen
and the State should be under the same law as that which governs
the relations between citizens. It is true that, in many respects, in
the absence of special rules, the rules of civil law apply also to
administration (cf. especially X); and here it is not easy to trace
exact boundaries.
The concepts of administrative and public law are the result of
doctrinal development (I.1). The distinctions thus made are not
consequences of constitutional principles or provisions. One cannot,
for instance, as in France, say that because a rule belongs to

1 References of this kind refer to the questionnaire.

2 Italicised references of this kind refer to this article.
224

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 225

administrative law or public law it must be applied by

administrative authorities and not by the ordinary courts. In
every situation one must investigate whether the power to decide
has been conferred on an administrative authority. If this is not
the case the question belongs to the ordinary courts, even if it is
regarded by doctrine as a matter of administrative law.
When power is given to an administrative authority there is also
an established right of " administrative appeal " (see IV). This
means that you can as a rule have your case decided in the last
resort either by " the King in Council " (this being the form under
which the government acts 3), or, in other cases, by an administra-
tive court (see below).
Sometimes the powers of administrative authorities must be
understood to be restricted, in so far as the general right to bring
questions of law before the ordinary courts may be exercised in
spite of the decision of an administrative authority: it is not always
easy to say when this is the case. But as a general rule to confer
a power on an administrative authority means to make its decision,
or the decision arrived at in an administrative appeal, final. Thus,
generally administrative Acts (including decisions in administrative
appeals) are unchallengeable in the ordinary courts (1.5).
Administrative authorities are either State authorities4 or
communal (local government) authorities.5
Generally speaking, State authorities have a more indepen
position than in most other countries. Like judges, Civil Serv
cannot as a rule be dismissed (Constitution, art. 36). Accordin
the prevailing opinion, a Civil Servant is not subject to orders
his superiors as to the interpretation and application of a sta
especially in cases where the rights of private persons ar
question. A Minister cannot, legally, give any orders himself
has to procure a decision of the King. The central administra
is not organised as a group of services, each fully integrated u
the immediate control of a Minister, but consists of two dis
elements: (1) the King and his counsellors (Ministers) with th
"departments of State," and (2) a number of separate "cen
offices," most of them with a director-general at their head

3 Cf. my book, Sweden. A Modern Democracy on Ancient Foundations,

et seq., 46 et seq. Legally a minister only gives advice to the king; in
however, the king always decides according to the advice of his minister
4 Op. cit., pp. 56 et seq.
5 Op. cit., pp. 70 et seq.

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
226 International and Comparative Law Quarterly [VOL. 2

each province there is a governor, with powers extending to most

fields of State administration.6

A legal education has traditionally been essential for members of

our State administration. Leading posts are often filled by lawyers
of high standing.
What has been said of the independence of State authorities is
especially true of certain authorities which decide specially delicate
questions: these often consist of lawyers, technicians, representa-
tives of different interests, other laymen, etc. (11.1). Their
organisation and powers-including qualifications for appointment
and tenure of office (1.4)-vary kaleidoscopically. Sometimes
unofficial elements of the type mentioned above have been fitted
into central offices for special purposes. Some authorities have a
very wide jurisdiction, such, for instance, as the commissions
established during the war for different fields of the national
economy. But there is no counterpart to the very comprehensive
powers of the American Commissions (11.2). On the other hand,
there are numerous special agencies (boards, committees) working
in limited areas, usually provinces and smaller communities, and
often closely connected with local government (e.g., for agricultural
adjustment, labour exchange and unemployment questions, for
public health, for public assistance, for control over housing, for
child welfare, for taxation, etc.).
According to Anglo-Saxon usage some of these authorities might
perhaps be called administrative tribunals or courts. We do not
make a clear distinction between different types of authorities.
Generally, however, authorities established solely or mainly to
decide administrative appeals are regarded as " administrative
courts." Such are the Court of Government (regeringsrdtt, the
highest administrative court, established in 1909), the Chamber
Court (kammarrdtt, mainly for questions of taxation), the Insurance

6 Thus a service such as transport is administered by a central office or board,

or a number of central offices or boards, consisting of a large number of Civil
Servants and enjoying a great measure of autonomy. The more remote
direction on matters of high policy-and indeed the decision of many petty
questions-is vested in a State department comprising only a fairly small
number of Civil Servants-say between 30 and 70-with a minister at their
head. A fairly close analogy would be with our Ministry of Transport and
the British Transport Commission and the Railway Executive, etc., or with
the Treasury and the Boards of Inland Revenue and of Customs and Excise.
But in theory and practice the Swedish central offices or boards are more
independent of the State departments than is the case in this country, and the
division of powers between the two classes of authorities is carried out more
systematically throughout the greater part of central administration. Thus
there are Boards of Army Administration and Naval Administration. Only the
Foreign Office is unified as in England in a single State department with over
300 Civil Servants. [F. H. L.]

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 227

Council (for public accident insurance), the Rent Council (for public
rent control), the Appeal Division of the Patent Office, and some
others.
These courts do not form a "system" (1.3); they have been
established where for one reason or another a need for impartial
decisions has been felt. They have no " universal jurisdiction over
the legality of administrative acts " (1.4). On the one hand, they
only decide such appeals where a statute so prescribes. To the
Court of Government, for instance, have been referred a great
number of questions, enumerated in a statute, where legal issues
generally arise; other appeals are decided in the last instance by the
King in Council. On the other hand, administrative courts do not
consider merely the legality of administrative acts: they have, in
appeals brought before them, the same powers as a superior
administrative appellate authority, namely, to judge the case as
comprehensively as the authority which made the initial decision
(see below, V). Only the acts of local councils are privileged; they
are subject to examination only in regard to legality.
In order to reconcile the claim of public authorities to adequate
powers with the claim of private persons to freedom and protection,
Swedish law has tried to specify the powers of the former, leaving
the liberties of the latter to arise automatically where the powers
do not exist (1.7). Our Constitution has no counterpart to the
catalogues of civil rights found in most other constitutions. The
only section that may be compared with them is art. 16, which
contains a sort of translation from the old Land Law (Landslagen)
of the fourteenth century and describes in archaic words the duty of
the King to maintain law and private rights. This section is often
referred to, but its legal scope and force are highly questionable.
The Constitution, however, guarantees liberty of religion and the
liberty of the Press. In some other cases, too, statutes have pro-
claimed general rights, e.g., industrial liberty.
Discretionary powers are not generally given in very broad
terms, reservation being made for war and post-war periods. In
so far as delegated legislation is necessary it is generally done by
the King, not by subordinate authorities (1.7).

II. Ad Hoc Tribunals

See I, VII and VIII.

III. Publicity
There is in Sweden a strong sense of publicity. It has given birth
to an arrangement-dating from 1766-which is quite peculiar. All

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
228
International and Comparative Law Quarterly [VOL. 2

documents in the custody of the administrative authorities-as well

as of the ordinary courts-are in principle public (Freedom of the
Press Act, ch. II). This means that anyone can demand their
production. The rule applies to every document that comes in to a
public authority from outside (from private persons or from other
authorities: orders, reports, etc.) and also to copies of decisions
and other documents emanating from the authority. There are, it
is true, a great number of carefully specified exceptions made in the
public or private interest (Secrecy Act). The Foreign Office is, for
instance, not bound to open its records; and in several cases where
publicity might be injurious to personal and business interests docu-
ments must be withheld. But the rule is far-reaching enough to set
a stamp on the relations between the authorities and the general
public. (As to its importance for parties, cf. VIII.)
Through the publicity of documents we have established a public
control over administration which may well be compared to the
control over the ordinary courts that arises from the fact that their
sittings are public. Public opinion is expected to be, and really is,
a power that Civil Servants must always take into consideration.
An official who is tempted to act arbitrarily must always risk a
public discussion based on exact knowledge of the case. The news-
papers are, of course, anxious to use this excellent source of
information.
Publicity in the sense of a right to be present at the proceedings
of administrative authorities, inquiries, etc. (III.1) is of less
importance since administrative procedure is mainly in writing (cf.
VII).
As to the privileges mentioned under 111.2 there is, if I have not
misunderstood the question, no considerable difference between
courts and administrative authorities.

IV. The Right to Challenge Administrative Acts 7

Administrative acts, with the exception of those of the King in
Council, are normally challenged by administrative appeals (cf. I),
which take different directions (generally two), being decided, in
the last resort, either by an administrative court, or the King
in Council, or (mainly in minor cases) by another administrative
authority. In the absence of a special limitation, there is a general
right to challenge administrative acts even where statutes do not-
as is most often the case-establish it explicitly. This applies to
the quashing of administrative acts. Only in a few cases can a

7 See op. cit., pp. 188 et seq.

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 229

private person obtain a decision as to the legality of prospectiv

administrative action (IV.3). There is no action to enforce the
performance of a duty by a public authority (VI.1, 2).
Locus standi to challenge administrative acts (IV.4) is often
defined in the statutes, but most often in very general terms, e.g.
power is given to anyone " whom (or whose rights) the case con-
cerns." It has been left to the Court of Government (and other
administrative courts) and to doctrine to settle the principles in
detail. In general our practice is rather liberal, though perhap
not so liberal as in England. Groups of inhabitants or other
unincorporated bodies have no locus standi. Against decisions of
communal (local government) councils, however, any " member "
of a community has locus standi; this is not very far from an
actio popularis. Organisations such as trade unions have often
tried to appeal, but when they have only wanted to defend the
rights of their members their appeals have in general been
dismissed.

A time limit is nearly always fixed for bringing an appeal

(usually 30 days after communication of the act, VI.1). As a rule
(which is subject to many exceptions) an administrative act is not
valid until the term for bringing an appeal has expired. Until that
time it cannot be executed, and a private person is under no
obligation to obey it (IV.2). The appellate authority is empowered
not only to quash a challenged act but also to modify it. This does
not, however, apply to the acts of local government councils.
Administrative acts and decisions can as a rule be executed
directly without the intervention of judicial process (IV.1). Pr
persons have not, thus, an opportunity of challenging them be
the ordinary courts at the stage of execution. There are only a
exceptions to this rule. The most important one is that wher
administrative authority imposes a penalty for non-compliance
an order, defaulters are tried by the ordinary courts. Anyone
cerned may disregard the order at his own risk, and defend him
before the court by setting up its illegality (IV.2).
As has been mentioned above, a private person may, in
where the administrative authorities are not empowered to m
final decisions challenge their decisions before an ordinary co
He must then bring an action against " the Crown," not in
form of an application that the act in question be quashed
according to the ordinary forms of civil procedure (1.6, IV.6,
the question will not then be raised whether there was a possib
of administrative appeal which he has not exhausted (IV.5).
of public liability will be mentioned below (X); I may, howeve

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
230 International and Comparative Law Quarterly [VOL. 2

emphasise here that question of contract and tort are not, as in

France, reserved for the decision of administrative courts. In
other cases also a civil action may be brought against the Crown;
but these cases are rare.

No little importance, however, attaches to the possibility of

bringing a penal action or a civil action in tort against an official f
a wrong committed by him in the execution of his official duti
This is a not infrequent way of subjecting administrative acts to
the judgment of the ordinary courts. In this connection mentio
must be made of the two Solicitors-General who are appointed b
Parliament, the one (justitieombudsmannen) to supervise the cour
and the Civil Service, the other (militieombudsmannen) to superv
military officers-both of them generally lawyers of high standin
They have at their disposal all possible means of acquiring
information as to the activity of the administration; they have free
access to the records, they can demand information from the
officials, etc. To a great extent they make investigations on the
demand of private persons who feel injured. The criticism they
express is per se of considerable moral weight, owing to the great
esteem they enjoy. Legally, however, the corner-stone of their
position is their ability to bring before the courts penal actions
against officials when they have committed grave faults or when
administrative practice seems to imperil the general rights of the
citizen (Constitution, art. 96). Criminal proceedings against
officials cannot, of course, result in an administrative act being
quashed.
It will be understood from what has been said here that the
ordinary and administrative courts do not, even taken together
exercise a universal jurisdiction over the legality of administrat
acts (I.4). The powers of the administrative courts are determin
enumeratively. And in many cases, sometimes of great legal
importance, the complainant has to acquiesce in the decision of an
appeal by the King in Council (i.e., in fact, of the Minister). More-
over, there is no possibility of an administrative appeal against a
decision made in the first instance by the King in Council.

V. Excess and Abuse of Powers

From what has been said in IV, it is clear that the question raised
here mainly concerns cases where excess or abuse of power by an
authority is the subject of an administrative appeal. In the few
cases where the ordinary courts are competent they will as a rule
judge the acts of " the Crown " mainly from a civil law point of
view.

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 231

As regards administrative appeals, the questions admit of a fairly

simple answer. For in principle-as has already been said (I)-
authorities handling administrative appeals, including the adminis-
trative courts, have (though this is subject to one exception, the
acts of local government councils) not merely to decide whether
there has been an excess (V.1) or abuse (V.3) of a discretionary
power. The appellate authority has also full power to decide
whether a discretionary power has been exercised unreasonably
(V.6, cf. also 11.3), or generally in a way that it does not consider
appropriate. Discretionary power given to an administrative
authority never implies an uncontrolled discretion to determine
the limits of the power. The appellate authority may always
control the findings of fact and law upon which the original
authority based its decision (V.2). A decision may be quashed on
the ground that the authority which made it had been actuated by
extraneous considerations or by bad faith (V.4, 5).
But it must be remembered that this control, although very
comprehensive, is satisfactory only when it is exercised by adminis-
trative courts. When the ultimate appeal is to the King in Council
or to an administrative authority, there is no judicial control at all.
This is also the case when the King decides at first instance.

VI. Neglect of Duty

See IV and X.

VII. Administrative Procedure

There is no general statute regulating the procedure of administ

tive authorities (VII.1, cf. VIII.16). But a good procedure has
long been regarded as very important for the protection of th
interests of private persons. Statutes and regulations pay consi
able regard to procedure: the provisions vary greatly and ar
sometimes rather incomplete, but we are considering the possibi
of making the legislation more uniform, more complete and m
satisfactory from the point of view of private interests. Where
special procedure is prescribed, an authority is supposed to foll
the same rules without variation in every individual case. Certa
general principles are respected as are the " principles of natur
justice" in England. These principles have been drawn from
the general rules of procedure applied in the ordinary courts. In
modern times the Court of Government has done much to fix the
principles of a good procedure.
This applies not only to first instance decisions but also to
appeals, not only to the ordinary administrative authorities but

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
232 International and Comparative Law Quarterly [VOL. 2

also to those authorities which might be regarded as tribunals.

Even the administrative courts do not in principle use a procedure
substantially different from that of administrative authorities (cf.
11.5-7). In so far as tribunals and courts have a specific character,
this results from their composition and the degree of independence
rather than their procedure.
The procedure before both administrative courts and other
authorities is, with few exceptions, a written one. This is certainly
unsatisfactory. It would also seem to be incompatible with the
tendency to adjust administrative procedure to the patterns of
judicial procedure. It is, however, more easily understood if one
considers that, before 1948, even the procedure before the higher
ordinary courts was seldom oral. The Swedish people have from
early times been accustomed not to regard oral proceedings as an
indispensable element of justice. There is, however, a tendency to
widen the possibility of oral proceedings. Parties may appear in
person before authorities dealing with, e.g., questions relating to
child welfare, the care of drunkards, the expulsion of foreigners,
rent regulation, and taxation, and may in some cases be heard at
public inquiries (VIII.7). In practice, however, proceedings before
the Court of Government are never oral.
We regard it as an element of good procedure that reasons
should be given in a decision (VII.2). But the reasons are certainly
often not very illuminating. I know of no provisions contained in
statutes or regulations that decisions and reasons for them shall be
published (VII.3). Decisions of administrative courts and certain
other authorities are, however, published in several collections of
reports. It must also be remembered that the principle of the
publicity of documents (III), as a rule, makes all decisions of
administrative authorities available to anyone who wants to see
them. If an appeal is brought against an act for which no reasons
have been given, the deciding authority will be asked by the appel-
late authority to express its opinion; and this report will, as a rule,
be made available to the complainant (VII.4).
From what has been said above (IV) it is clear that on appeal an
administrative decision can be quashed or modified for error of law
or of fact and also on the merits (VII.5-7).

VIII. The Right to be Heard

The principle that the parties-and we speak of parties even when
there is only one-should be " heard " is upheld. A decision may
be quashed or modified on this ground (VIII.1, 4), but it is possible
that in cases mentioned under VIII.19 it will be upheld. It is,

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 233

however, very difficult to decide how far this principle reaches:

for only in a few cases are there any statutory provisions.
According to the general procedural arrangements persons whose
rights and interests are affected will not, as a rule, have an oppor-
tunity to appear before an authority and to be heard orally. They
will generally have to put forward their case in writing. The
officials who decide will not, however, refuse them an informal
hearing (VIII.3). And the problem of finding who the individual
official is (VIII.2) is not, so far as my experience reaches, a very
difficult one. The individuals acting are not so anonymous as in
England. It is not difficult to ascertain from statutes and regula-
tions the authority that has to decide; and within the authorities
there is a distribution of functions stable enough to make it fairly
easy to find the individual who is in charge of a case. In a
written procedure there is, of course, no question of examining
witnesses (VIII.15). Even when proceedings are oral, you cannot
compel witnesses to appear and, if they appear, they cannot be
compelled to confirm their statements on oath. Sometimes, how-
ever, an administrative authority may have witnesses heard by an
ordinary court. The technical rules of cross-examination are
unknown to Swedish law.

In most cases a party will effectuate his right to be " hea

by seeing and testing written material (cf. VIII.15), and by hav
in consequence, an opportunity to correct errors, adduce furth
evidence, and elaborate his case in writing.
His access to written material is guaranteed by the princ
of the publicity of public documents (see III). This principl
upheld in the interests of the general public, but it serves also
interests of parties. It is important to notice that a document,
whether it comes from a private person or from another authority,
is available from the very moment that it comes in. During
the time when a case is being considered most of the material
which is amassed from time to time is at the disposal not only
of the authority itself but also of anyone who may be interested
in inspecting it. I have mentioned that there are statutory excep-
tions to the general rule of publicity; but the Secrecy Act (see III)
presupposes that parties shall have a more extensive access to
documents, and it is expressly provided that the exceptions to
publicity shall not trench on this right of parties: only when
public or private interests make it important may the statutory
exceptions be enforced against parties (VIII.17).
It is not difficult to make a practical use of this right. In most
authorities there is an official who must, at the request of a party,
I.C.L.Q.--2 16

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
234 International and Comparative Law Quarterly [VOL. 2

assist him, e.g., by informing him of documents which have reached

the authority concerning his case.
Accordingly less importance attaches to the question whether
an authority must be active in the interests of a party, by informing
him of material which has come into its possession, and whether it
must give him some respite in order to meet the new material, by
producing fresh evidence or otherwise.
How far an authority must go in this respect is a matter for
its discretion in each individual case. In principle a party should
be " heard " in this way not only about material adduced by
another party, but also about reports and opinions delivered by
other authorities. The principle also applies to the special case
mentioned in VIII.6, where the decision of one authority needs to
be confirmed by another authority and the former authority brings
relevant material to the notice of the latter.8 But if the authority
handling the case uses its professional skill and knowledge-as it is
always entitled to do-there is no established rule that the
information that it has thus obtained by its own efforts should be
disclosed to parties (VIII.5, 6).
Certainly a difference is made between different sorts of cases.
In some sorts of cases-especially where speedy action is necessary
-a decision may be made without taking steps to hear a
party. But I cannot trace any clear lines, for instance, in answering
questions VIII.12 and 13.
In cases where a party appears in person before an authority,
I am sure he will always be allowed to be legally represented,
though there is no statutory provision governing the matter
(VIII.14). In writing he may also act through a representative.
Sometimes the functions of authorities are described as legis-
lative, judicial or executive (administrative). But the meaning of
these terms is rather obscure. The distinction between judicial
and executive functions has, so far as I can see, no effect on
procedure (VIII.8-11, IX.6). But if an administrative authority
exercises "legislative " functions (cf. I in fine, above), we are not
disposed to speak of parties or their rights; and in most cases nobody
will have locus standi to challenge its acts.

8 It will be observed that the difficulties which arose in such cases as Frost
v. Minister of Health [1935] 1 K.B. 286; Offer v. Minister of Health [1936]
1 K.B. 40; Horn v. Minister of Health [1937] 1 K.B. 164; and B. Johnson
& Co. (Builders), Ltd. v. Minister of Health [1947] 2 All E.R. 395, could not
arise in Sweden because of the rule that makes departmental documents public.
[Ed.]

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 235

IX. Interest or Bias

Questions IX.1-3 may be answered simply by saying that the

governing objections to judges apply-perhaps with some rese
tions-to administrative officials also. Those rules also apply in
principle where the functions exercised may be regarded as
" legislative " (IX.6), though they will in such cases be applied
cautiously-an official will not, for instance, be incapable of acting
merely because he is an inhabitant of a district for which he is making
a regulation and has an interest as such. A decision can accordingly
be quashed for interest or bias. I think that no exception will be
made in cases where the interests of a party have not been sub-
stantially prejudiced (IX.7). But a decision cannot be attacked on
the ground of " departmental interest " (IX.4).
Certainly it may be said that the impartiality of an authority
is often impaired by the fact that it has also to take care of public
interests. In some fields, for instance taxation, steps have been
taken to differentiate the particular officers within an authority,
one of them having to function as a sort of prosecutor (IX.5); but
this arrangement is rare. It should be emphasised that even in
administrative courts and in authorities comparable to English
"administrative tribunals " it is only exceptional that the State
is represented by someone who plays the role of a party in opposi-
tion to the private party. This necessarily makes the procedure
more inquisitorial than in the ordinary courts (1.6, 11.6).

X. Liability of Public Authorities

Contracts made by public authorities are subject to the general
rules of civil law and I know of no types of contracts which public
authorities cannot lawfully make within the scope of their powers
(X.1). Special types of contracts made by public authorities have,
however, been made subject to special rules. A private person
can enforce a contract specifically against a public authority (against
the Crown, if it is a State authority) and can bring an action for
damages if it is broken (X.2). In either case he will proceed in an
ordinary court-never an administrative one. Only in cases
concerning the post office and the railways are there exceptions
limiting the competence of the ordinary courts. Further, when a
person vindicates his property, he sues the Crown in an ordinary
court (X.3).
For tort also (X.4) public authorities are sued in the ordinary
courts. It is, however, very difficult to say in what circumstances
the Crown is liable for torts. There is in this field-apart from
some statutes regulating very special questions-no statute law;

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
236
International and Comparative Law Quarterly [VOL. 2

indeed, in civil law, also our law of torts is mainly judge-made.

In practice, however, the idea of Crown liability has gained ground.
In general the ordinary courts are inclined to view public liability
with the same eyes as liability in private law. But there is in
some respects a tendency to form special principles to govern public
liability: above all, liability without culpa has in several cases been
imposed where a public authority is engaged in a dangerous activity.
In very few cases, if any, has the Crown been held liable for
damage caused by an administrative act proprio sensu, i.e., an act
determining the rights or duties of a private person. And I do not
know any example of liability in the situations mentioned in VI.3.
A public authority cannot be prosecuted in its corporate capacity
for a criminal offence (X.5). Only the individuals concerned are
prosecuted (see IV).
A public authority cannot be made to pay compensation either
for damage arising from a lawful act, or where a change in the law
causes inequality of sacrifice, etc. (X.6, 7). Such compensation
must be arranged by Parliament, for instance, by a statute. Some
scholars have held that in the latter case the Crown may be sued,
but the ground they have put forward is that the statute intro-
ducing the change was repugnant to the Constitution (especially
art. 16; see I) and therefore not lawful; and I know of no case
where the courts have held the Crown liable on this ground.

XI

In the choice between what Bonnard calls " moyens preventifs "
and " moyens d'ordre repressif," Swedish law is traditionally in
favour of the former.9 It has laid stress on a personnel imbued with
a spirit of legality, enjoying a rather high degree of independence
and not subject to the orders of their superiors. Faults are
supposed to be corrected by way of administrative appeals, which
in most questions of law are brought before administrative courts,
as independent as the ordinary courts. Procedure is satisfactory.
The publicity of documents ensures that administrative authorities
are, just like the courts, controlled by public opinion. As a rule
administrative acts do not operate until the time for bringing an
appeal has expired, nor-if the act has been challenged-until the
case has been decided in the last instance. We have, in a word,
been disposed to put our trust in the administration as well as in
the ordinary courts. Consequently, the ordinary courts have not

9 Op. cit., p. 126.

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms
APRIL 1953] Swedish Administrative Law 237

had to interfere very much in administrative affairs. As recen

as three or four decades ago even the question of Crown liability
seldom raised.
But there are weak points in the system. The importance of
the administration has increased. It interferes more severely tha
formerly in the affairs of the citizen. In many fields the leg
tradition within the administration has weakened. The general
public are not so willing as formerly to accept the decisions of the
" King in Council " as the last word in legal questions; since
government has been " parliamentarised," political interests and
views may prevail. The government has also a stronger grasp on
subordinate authorities than formerly. Publicity has been cur-
tailed. In many cases administrative decisions must be made to
operate immediately.
It is no wonder that in this situation many people feel that a
control from without should be exercised by the ordinary courts;
that it should be possible, more than now, to challenge administra-
tive acts in the courts; and that the liability of the Crown should be
vindicated to a greater extent, including liability in tort for
wrongful administrative acts. But certainly another method is
possible: to enlarge the powers of the administrative courts.

NILS HERLITZ.

This content downloaded from

200.0.177.108 on Mon, 01 Mar 2021 16:44:56 UTC
All use subject to https://about.jstor.org/terms