Minority Rights, to be recognised by the Legislator or the Supreme Court? - Did the Swedish Supreme Court (Högsta domstolen) adopt an activist or restrained position, concerning the right to property of the Sami people, in the Taxed Mountain Case (Skattefjällsmålet) and what were the effects of the chosen approach?

• Main Author: Nilsson, Karin
• Format: Other/Unknown Material
• Language: English
• Published: Lunds universitet/Juridiska institutionen 2018
• Subjects: jurisprudence; allmän rättslära; private law; civil rätt; legal philosophy; rättsfilosofi; legal history; rättshistoria; sami law; samerätt; Dworkin; skattefjällsmålet; the taxed mountain case; Law and Political Science; sami
• Online Access: http://lup.lub.lu.se/student-papers/record/8964543

In the 1970s a group of Sami people sued the Swedish State claiming a better right to a geographic area referred to as the Taxed Mountain (Skattefjällen). The Sami people are recognised as an indigenous people, and a minority group, by the Swedish State. The Taxed Mountain Case (Skattefjällsmålet), that reached the Supreme Court (Högsta domstolen) in the year of 1981, resulted in a precedent that has since heavily influenced most cases concerning the rights of the Sami people. The objective of this thesis is to analyse the reasoning of the Supreme Court in the Taxed Mountain Case with the assistance of Ronald Dworkins theory on minority rights. The basis of the theory presented by Ronald Dworkin is that a majority is unwilling to accommodate the rights of a minority group any further than to ensure peace and order. Dworkin therefore advocates an activist Supreme Court stepping in, when the majority fails to do so, to ensure the constitutional rights of minority groups. To be able to understand the analysis of the Taxed Mountain Case much effort has been put into presenting both the theory of Ronald Dworkin but also the Swedish constitutional system and tradition. The constitutional document relevant for this thesis is the Instrument of Government (Regeringsformen). Other material used consists mostly of legal doctrine, published papers by legal scholars, legislative history (förarbeten) and to some extent newspaper articles. The conclusion of this thesis is that the Supreme Court adopted a strongly restrained position in relation to the legislator, as defined by Dworkin, when determining the Taxed Mountain Case. The effects of such an approach, In accordance with the ideas of Dworkin, is that the Supreme Court established that if a right does not prevail from the political or legislative process, with the assistance of political institutions, it is an improper claim of a right. Concerning the rights of the Sami people this results in them completely having to rely on the good will of the political majority to ...