A third form of resistance, more difficult to identify, is the treatment of legislative history in legal writings. Despite the fact that it is officially recognised as a source of law in Swedish legal theory, there is in my view a tendency among academics to underestimate the role of legislative history in legal decision-making.This underestimation is especially evident when scholars interpret, analyse, and explain case law - one of the most important tasks for any of them. It is, of course, always a matter for discussion which particular source of law or which legal argument played the single most important part for judges whenever they rule on a case - if such singling out is even possible.The underestimation of legislative history, I am suggesting, may seem a judgement difficult to substantiate.However, recently a former Supreme Court judge and prominent scholar made exactly this observation in a review of a new thesis.The author had, in his view, neglected the function of legislative history in her analysis of Supreme Court case law.17 All these proclamations taken together can be interpreted as constituting a diminishing confidence in the status of legislative history as a proper source of law.A final proof of this resistance will be dealt with in the next paragraph. Assuming that the position of the Commission most likely enjoyed the unspoken support of Swedish legal scholars, the time has come for dealing with the outcome.The European Court of Justice ruled in favour of Sweden and thus found that Swedish legislative technique and Swedish statutory interpretation constituted no threat to the efficiency of EU law within member states, at least not when considering the circumstances of this case. Before examining the reasons for the Court’s decision, it is necessary to mention that no Swedish legal authority apparently thought it worthwhile to comment on this unexpected result. How is such silence to be interpreted? It is usually considered bad logic to argue e silentio. In this case, however, I believe it to be wholly justire cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 202 17 “[The author] does not seem to pay close attention to the sources on which the rationale [by the Supreme Court] is founded [...]the rationale accounted for seems, in its important parts, to be based on legislative history ... which is usually not stated [...] legislative history plays a significantly more important role than the author seems to indicate.”, B. Bengtsson,Å. Åslund - Allemansrätten och markutnyttjande, review in: Juridisk Tidskrift 2008/09 nr. 4, p. 929. 2 . th e g rowi ng i mp ortanc e of l e g i s lat i ve h i story i n statutory i nte rp retat i on
RkJQdWJsaXNoZXIy MjYyNDk=