Förarbeten som rättskälla - En normativ studie av den dömande maktens lagtolkningsmetod

Preparatory works such as, e.g. investigative reports, propositions, and committee reports, are created during the Swedish legislative process. The courts have, by tradition dating back many years, used these preparatory works as a source of law when interpretating acts of legislation. In some cases, preparatory works are the determinants for the courts’ rulings. The use of preparatory works has a historical explanation. During the 19th centrury, or possibly even earlier, the Swedish laws started to become more succinct, while the preparatory documents grew more comprehensive. Separation of powers means that the state’s political power should be distributed between different branches, e.g. between a legislative, an executive and a judicial branch, and that the branches should be distinct from each other. It has been contended that there is a need for a greater separation of powers in Sweden. The courts’ use of preparatory works can be viewed as a symptom of a comparatively weak judicial branch. Different methods of judicial interpretation pay different attention to preparatory works. Subjective methods attempt to determine the legislator’s intentions as they are expressed in the preparatory works, while objective methods focus more on the systematic and the linguistic aspects of laws and mostly disregard what is written in the preparatory works. Proponents of teleological methods may use preparatory works as one of several sources, in order to determine the purposes of laws. Since the 1950s, there has been an ongoing debate within jurisprudence on the preparatory works’ position as a source of law. Most of the arguments can be placed in one of the following categories: “democracy”, “due process” or “separation of powers”. Some debators are very critical to the usage of preparatory works as a mean of interpreting law, others are very positive and still others are of the opinion that preparatory works may be used but only within certain limits. After examining the arguments adduced in the debate and comparing them to each other as well as to other aspects of democracy, due process and separation of powers, the author concludes that Swedish judges should be much more restrictive than presently, in their use of preparatory works as a source of law.