Full Judicial Review or Administrative Discretion? A Swedish Perspective on Deference to the Administration

Abstract

Swedish administrative law has not devoted much attention to the concepts of discretion or deference with respect to the administration. This is explained by the historically founded competence of administrative courts conducting a full review under the so-called administrative-judicial form of appeal. Here, the administrative court has the same decision-making competence as the deciding administrative authority, and thus may alter the decision in substance. This system in practice leaves the court with a number of options, including upholding, quashing or remanding the case to the administrative authority. The courts’ reasoning behind these choices depends on the content of the appealed decision, the applicable legislation and the information available to the court in the case. It is also possible that the application of the legal framework is guided in part by implicit ideas of administrative discretion or deference to the administration. The conclusion drawn here is that legal research in this field is needed to establish principles that are more general. In contrast, the two other main forms of judicial review—municipal appeal and legal review of governmental decisions—provide a more clear-cut form of legality review. Comparative legal studies can offer insight into the theoretical and practical strengths and weaknesses of the Swedish legal system and its various forms for judicial review of administrative decisions.