Legal history has long been a formal part of higher legal education inSweden.2 It is typically treated as a distinct curriculum and genre of legal writing, with its own methodological approaches. Several traditions exist.3 One such is the legal-genetic method (rättsgenetisk metod), associated with Stockholm University, which emphasizes the legal-political and systemic choices that have shaped current law. The method presupposes that history plays a practical role in the application of law.4 Indeed, it is necessary for lawyers to engage with time, particularly with the past.5 When doctrinal methods are adopted,6 legal practitioners make use of legal sources to ascertain or gain knowledge of something called “applicable law”, the law as it is, to solve legal issues in the present. Legal sources – cases, statutes, preparatory work – are arti104 petter danckwardt Constructing the Past: Legal Archives and Critique in Swedish Legal Research Constructing and using the past 1 1 I am grateful to Dr. Love Rönnelid for helpful and insightful comments on an earlier version of this text. 2 Gerhard Hafström, ”Rättshistoriska perspektiv” Svensk Juristtidning 1979, p. 88. 3 For a debate of what the proper study of legal history (or legal development) ought to be, see the review article by Karl Gustaf Westman on Carl Gunnar Bergman’s Översikt av svensk rättsutveckling, Svensk Juristidning 1919, p. 23 ff. 4 Adam Croon, Jura Novit Curia – En rättsgenetisk undersökning av den juridiska metodlärans utveckling under 1800-talet, Stockholm 2018, p. 14. 5 Lawyers arguably work with time many ways. One interesting way is how they deal with the future. As a friend, who is still working in the Swedish courts, reminded me, lawyers work with future time (and increasingly so). Specifically, lawyers in the present learn from and reconstruct the future to make sense of the past. For example, judges are in some cases obliged to consider future events – e.g., by making a prognosis – when reconstructing applicable law, for instance in custody cases concerning the best interests of the child, or in cases where a certain interpretation and application of a legal rule in present time will have clear ramifications in future time. 6 That is, the standard form of scholarship in many law schools. It can also be called “legal dogmatics”. By legal dogmatics I mean something that works within the assumptions of legal positivism, particularly with respect to the sources of law. It is concerned with the interpretation of statutes and jurisprudence. There may be, within this framework, theories of interpretation and methods for the systematization of written and customary law.
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