The denial of fault on a large scale: modern Sweden

The Scandinavian countries have been put into a box of their own, the Scandinavian Legal Family. In modern times, the Scandinavian countries got new legal systems with help of regulation, and modern legal culture was modelled with help of legislation. During the last 25 years, however, the geopolitical legal landscape in the Nordic countries has changed dramatically. The older concept was based on harmonization (i.e. unification of legal rules across borders) of the Nordic legislation, especially in the fields of contracts, sales law and family law. This harmonization project started in the early 1880’s and was revitalized after the Second World War. Harmonization became a keyword among the Nordic lawyers after 1945. To create the common good between the Nordic citizens in strong democratic countries was a theme emphasized by the Nordic lawyers who unwillingly have been separated from each other during the War activities in all the countries – but Sweden. When this generation of lawyers, however, faded out from active legal work in the early 1970’s the harmonization of the Nordic legislation almost came to an end. Thus the scene was set for Sweden’s Tort Liability Act 1972.

This was a simple enough proposition: tort law is expensive and unpredictable. It is hard to gauge the level of fault involved, and many suffer losses that they cannot bear without there being much fault on the part of anyone. It is also very expensive to run, with lawyers and other parties taking up a lot of money. So, instead, Sweden instituted a system of insurance and direct compensation. Because the only costs are in administration and proof of harm, it is a cheaper system to run than tort law. It can also cover losses which tort law traditionally has not, whether because poorer people can now receive compensation, or because situations where there is no defendant available or in existence can be remedied. Fault itself is largely irrelevant to the system’s core function.

Some other countries have similar schemes covering certain areas, e.g. the French law on traffic accidents, but nothing else on this scale exists in Europe. On the other hand New Zealand has a scheme in a similar form. The key point is that such a move tends to reflect a societal view that the misfortunes of life are a collective burden, not one best allocated by fault or by the court system. Logically each individual regularly pays to compensate his fellow man. This is achieved through an insurance system, rather than a legal one (though of course there is a legal framework to it all).