Högsta domstolens användning av nordisk rätt i obligationsrättsliga referat ur ett rättskälleperspektiv

Sammanfattning: In a number of judgments handed down by the Supreme Court of Sweden over the past decade, the Court refers to foreign law from the Nordic countries. Motivated by the view that the designation of sources of law is central to the maintenance of formal justice, the thesis examines whether foreign Nordic law constitutes a source of Swedish law based on the Supreme Court's use of it. When one sees that the Supreme Court has used a certain material as support in a judgment, one may conclude that the court has considered that material a source of law. However, before drawing such a conclusion, one must examine how and why the Supreme Court has used the material in question. Based on legal positivist theory, sources of law in the thesis are understood as sources from which legal rules derive. A legal rule is a rule that has legal authority, which means that the legal rule must be applied regardless of its content and for the reason that it derives from a source of law. In order to ascertain whether foreign Nordic law is a source of law due to the way in which the Supreme Court uses it, it is therefore examined whether the Court applies legal rules from the Nordic material directly, i. e. whether the court sees the material as authoritative, or rather, if it is the content and arguments in the material that are given weight. The conclusion of the thesis is that in the vast majority of cases, the Supreme Court does not apply legal rules from the Nordic material directly, and that Nordic law therefore is not considered a source of law. The Nordic material is instead used as a source of inspiration when the Court, due to gaps or ambiguities in the law, must create a legal rule to be able to decide a case. Sometimes, the foreign Nordic material is used even when it is not necessary, obiter dictum. In areas of law that are clearly influenced by Nordic law, however, the Nordic material seems to be treated authoritatively under certain conditions, which ultimately leads to a nuancing of the thesis' dichotomous view of legal rules as either authoritative or not.