Dissertation: The Rights Argument in Swedish Tort Law

  • Date:
  • Location: Zoom: https://uu-se.zoom.us/j/63213514822
  • Doctoral student: Karolina Stenlund
  • Organiser: Department of Law
  • Contact person: Estelle Lerceteau-Köhler
  • Disputation

Karolina Stenlund defends her thesis in Private law.

Opponent: Prof Mårten Schultz. University of Stockholm

Examination Board:
Prof em Hans-Gunnar Axberger
Prof Päivi Korpisaari, University of Helsinki
Prof Laila Zachariasson, University of Uppsala

Substitute: Prof Håkan Gustafsson, University of Karlstad

Chairperson of the public defence: Prof Håkan Andersson, University of Uppsala

The public can follow the dissertation in the University Hall via a computer provided by the faculty. Use the side entrance.

 

Abstract

Tort law theory that provides remedies for constitutional violations and human rights violations, is a relatively new phenomenon in Sweden. The theory of negligence has traditionally considered to define Swedish tort law. However, this fundamental principle has been challenged by a human rights inspired tort theory developed by adjudication.

In 2021 it is evident that human rights and freedoms are part of Swedish tort law and are here to stay. This dissertation consists of a dogmatic review of the possi- bility of claiming damages based on the ECHR, Chapter 2 of the Swedish Constitu- tion (the Bill of Rights), the EU Charter, and the UN Convention on the Rights of the Child. The assessments of the conditions for liability, causation and compensa- tion are discussed in detail. In addition, the so called “radiation effect” of human and civil rights to civil law is presented.

The historical development of human rights is also described. The international human rights discourse is set in relation to the development of Swedish tort law theory – with specific focus on the 20th century. In addition the author explains how violations of human rights became a valid legal argument for claiming non- pecuniary damages in Swedish courts. Albeit “natural” for lawyers stemming from a tradition where the guiding principle is the separation of powers doctrine, this way of looking at rights in general has not been common in Sweden. This has, in part due to the membership of the EU, now changed.

Furthermore, the development of a general theory on compensation for human and civil rights violations is analyzed critically. The analysis is based on the theory of the double sided nature of the concept of rights as described by the American philosopher and Professor of Law Duncan Kennedy.