Håkan Hydén

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Contributions in Sociology of Law, Remarks from a Swedish Horizon

THE TRADITIONAL RESTRICTIVE attitude towards claim for compensation about non-pecuniary harms in both cause law and legislation become weaker even if the theoretically and practically reason behind the old exception-construction remain. This reason can best be explained by the thesis about incommensurability when it comes to compensate for some losses that money cannot compensate. To explain why the exception-construction is problemized in recent days I think two circumstances has played an important role (1) the materialisation of human rights as a consequence of the incorporation of the European Convention on Human Rights in Sweden since 1995 and (2) the right to crime victim compensation and the establishing of victimology in the legal and academic field. In practice there is of course a co-operation between these two factors and there is also some kind of hybrids like the legal interest of for example discrimination. This tendency is in my opinion therefore a practical and concrete example of law and justice in the risk society where almost every person is a potential victim of crimes and discrimination or other violations. In the risk society, given Ulrich Beck’s definition, it is characteristic that these phenomenons in our society rub out the boarders between law and politics in the manifestation of reflexive subpolitics about flexibility. The possibility to obtain redress with this compensation function as a mean to support the judicial systems official goal that is to satisfied the citizens needs and at the same time secure the confidence and the legitimacy for the judicial system through the factors (1) legal security and (2) the legal rights of the individual. At the same time these compensations bring on inherent risks because of its unclear function and the incommensurability between injury and compensation that risks fall upon both the victims and the lawyer’s profession. So when human rights now is both a goal and a mean for democracy and violations of the citizens bring about a right to compensation this illustrate a paradox. The judicial system cannot handle this type of injury that has it is ground in public law without challenge traditional principles and the legal professionalism. This tendency is also interesting in a comparative perspective given the premise that the jurisprudence movement known as Scandinavian Legal Realism has had an influence on the Swedish judicial culture. This follows from two circumstances: (1) Given the Scandinavian Legal Realism it is impossible to set up a legal claim from a violation of justice or somebody’s rights and (2) even if it would be possible, it is impossible to imagine the basis of calculation of these compensation because there is no way for informal norms from the society to influence the formal legal norms and the application of the law (only the opposite) given the Scandinavian Legal Realism. The last circumstance is relevant because the compensation of non-pecuniary harms consist of incommensurability and the only way to calculate these compensation, so it make it serves as rectification or redress for the victim, is in reflection and influence of the informal norms or the “common sense of justice”. My topic presupposes that the legal field is influenced by the theory in jurisprudence and can we therefore talk about an idealistic tendency or “critical legal realist” movement that maybe illustrates in these compensations. In a more concrete perspective these compensations bring to the fore methodological question in social science of how we can get empirically knowledge about norms in our society.

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