is to cast legal arguments in a scientific mould, whereupon overall consistency in the application of law is ensured. The practical function, however, concerns the making, rather than the application of legal norms. Consequently, doctrine has an ambivalent relationship with statutory law and case law: Apart from systematizing already existing statutes and precedents – legal doctrine ex post facto – the work of legal scholars is aimed at influencing the making of precedents and the drafting of statutes.39The systematic approach of modern jurisprudence enables, for instance, the legislative bodies to accurately assess the impact of a proposed statute on the legal system as a whole. Legal scholars will, consequently, carry out a substantial part of the groundwork associated with statute making, their contributions made all the more essential by the limitation put upon the legislator to refrain from large-scale codifications of private law.40 The reliance upon legal doctrine is just as marked in Swedish courts as within the ministries. Whenever judges and advocates are confronted with a particularly challenging legal question, it seems to be second nature to turn to textbooks or legal scholars for an answer. It is almost difficult to find rulings in “hard” cases that don’t contain one or more references to legal doctrine. The Swedish judiciary will to a large extent rely on legal doctrine to provide the basis for gap-filling and statute interpretation. In fact, it is not uncommon for a ruling to hinge on one single legal argument – often in the form of legal principles and concepts – found in textbooks or jurisprudential theses. Legal doctrine would also seem to be the legal source of the last resort, since the un-codified nature of Swedish private law inevitably will confront jurists with legal questions previously raised – and preferably answered – only by law professors. The influence exerted by legal scholars on the making of valid mar i e sand st röm 307 38 Nordling, ibidem, p 29. 39 Ibidem. 40 Ad hoc legislation would seem to require a higher degree of accuracy of aim than a code. “The theory of law has a dual relationship to statutory law and case law, in as much as it – with the help of the analysis of leading principles in law –guides those institutions that have been entrusted with law-making and the application of law in advance, as well as determines and limits the scope of their application by systematizing legal norms already established in statutory law and case law”.38
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