part iii • contemporary legal history • henrik wenander one sphere relating to the king and one to the Riksdag.11 The division of powers differed from what we today associate with the Montesquieuean tripartite theories of the separation of powers. Not only the public authorities but also the courts were part of the royal executive sphere, and the supreme courts pronounced their judgements in the name of the Royal Majesty.11 Hence, the judicial branch was not considered a state power on the same level as the legislative and executive powers. The king was toactonthe adviceof acollective of counsellors, Statsrådet (the Council of State).12 According to the 1809 Instrument of Government, the king was also commander-in-chief.13 Furthermore, the king acted as part of the legislative power. In certain areas, the King in Council legislated together with the Riksdag. This joint legislative procedure was observed for grundlagar (fundamental laws) andlagar (acts of law) on general private and criminal legislation. Legislation on Sweden’s general economy and public institutions could be enacted by the King in Council alone.14 As in other Western European constitutional monarchies, the constitutional power of the king had gradually retreated from being real and personal to being more formal, and in practice was transferred to a government or cabinet. By 1914, the king’s counsellors were in practice the true holders of political power. In the early twentieth century, the 1809 Instrument of Government generally decayed, in the sense that any important developments in the central features of the constitution – universal suffrage, parliamentarism – were not reflected in amendments of the fundamental law. Unlike other European countries, the central fundamental law was largely forgotten in public debate and even by lawyers.15 Interestingly, research in constitutional law took a broadly historic turn rather than looking at the contemporary legal situation. Sweden’s relatively peaceful twentieth century, without revolutions, foreign occu11 Instrument of Government 1809 Arts 17 & 18. It was amended several times and is thus cited here as when it was repealed in 1974. 12 Instrument of Government 1809 Art 7. 13 Instrument of Government 1809 Art 14. 14 Instrument of Government 1809 Arts 87 & 89. 15 Joakim Nergelius, ‘Constitutional Law’, in Michael Bogdan (ed.), Swedish Legal System (Stockholm: Norstedts Juridik, 2010) 40. 170
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