law is therefore indirect, since it is channelled through statutory law, customary law or case law, but none the less powerful. The reliance upon doctrine and legal scholars is as such hardly amazing, since all Swedish jurists will receive their formal training at university. During nine semesters, law students are taught to consider law from the point of view of legal scholars.A systematic approach to law soon becomes second nature; so much so that systematic arguments are often overlooked, and remain implicit, as judges write their opinions. Thus, legal doctrine can be described as working knowledge among Swedish jurists. In the absence of a comprehensive and unifying code, it has acquired a peculiar hold on jurist’s minds.The familiarity with concepts and principles, cultivated by Swedish jurists, has however its drawbacks. The constant indoctrination makes it all too easy to repress the knowledge that the structural elements in the legal system are not mere “forms”, but just as much “substance”.The legal concepts and principles that make up the backbone of law are, after all, normative in character, just like any statute provision or precedent. Only the level of abstraction make principles and concepts stand out against legal norms in general.As a consequence, a systematic approach to law will tend to exaggerate the scope of the general rule at the expense of the exception.The habit of interpreting exceptions strictly according to their wording or even restrictively, illustrates this tendency to emphasize the general rule and, hence, to acknowledge the systematic character of law. It could be, and it has been argued, that this reliance on concepts and principles amounts to conceptual jurisprudence.This is hardly a tenable position, since a systematic approach to law hardly precludes the teleological arguments despised by the conceptual jurist. It is, nevertheless, clear that this type of deductive reasoning confers a certain amount of authority to a legal source, which exists outside the scope of democratic control. It is, for instance, obvious that abstract principles like pacta sunt servanda and concepts like parties, buyers and sellers have been used in case law as seemingly neutral arguments against, amongst other things, the implementation of stronger consumer protection. In this sense legal scholars seem to assume the position of masters, rather than servants, of the legal system. re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 308
RkJQdWJsaXNoZXIy MjYyNDk=