In this second instalment on Sweden, we look into one specific aspect of the relation between risk and private law, namely that the regulation of risk was steered away from traditional private law vehicles, such as tort law, towards management by the institutions of the welfare state. In effect, this was a political vision of communitised risk as a rational way to collectively bear individual risk. Zooming in on this aspect of the Swedish legal system, we shall first focus on the intellectual background to this specific understanding of risk. Secondly, we shall focus on how to conceptualise this understanding, as well as on how this understanding of risk was regulated.

As to the intellectual background of the understanding of risk in the Swedish welfare state, we focus on the influence of Scandinavian legal realism, an influence that ought not to be surprising, but an influence that nonetheless has remained relatively unexplored, in particular among legal scholars. In terms of risk, Scandinavian legal realism meant a move away from tort and individual liability, towards insurance and risk sharing. In essence, this meant welfare state solutions to issues traditionally addressed by private law.

Sweden is well known for its welfare state. It is less well known that Scandinavian legal realism was a principal force behind the welfare state. The common interpretation is that the Keynesian economic policy recommendations of the Stockholm School of Economics provided the chief tool for the realisation of the welfare state – an economic system dominated by government. However, Scandinavian legal realism provided another key instrument for the practical realisation of the welfare state, that is, legislation as a political instrument to issue commands for social change. A further important factor behind the specific understanding of risk in the Swedish welfare state was that influential realist social scientists were also heavily invested in politics.

As will be clear, the political ideas of Scandinavian legal realism – in particular the idea of law as a political tool, and the idea of the rational society – made it intellectually feasible to conceive of risk in a legal system as collective and insurance-based, as opposed to individual and tort-based. Importantly, these ideas also furnished the political instruments for the realisation of this particular conceptualisation of risk.