Autonomy and the Swedish Torts Act – Historical Lessons in the Face of Robotics
Elmer Lorensson · 2019
In the creation of the Swedish Torts Act of 1972, questions of autonomy were raised and discussed in a number of different ways. Its treatment here and in the writing of several important legal scholars in the period between the 1864 Penal Law and the new Torts Act offers several valuable insights into the problem of autonomy and tort law today, not least concerning robotics and AI. This essay argues that changing views of autonomy and its role in notions of justice played a major part in the development of tort law between 1864 and 1972. The original line of thinking, here presented through the work of Richard Carlen would over the decennia come to be compromised in three stages. First, the idea that a person could act otherwise was compromised by developments in penal law theorizing around freewill, most explicitly as laid out by Johan Thyren. This obliterated the notions of justice prevalent in older tort law. Second, the idea that tort as its most important feature had a decisive preventive effect, as advocated by Vilhelm Lundstedt and (in part) by Hjalmar Karlgren, was compromised by the realization that even where no measure of prevention could have made it possible to avoid damage, there remained the problem of reparation. This required the legislator to place tort in a wider economic perspective. Third, Ivar Strahl's groundbreaking ideas prompted a realization that even when the tort law could designate a tortfeasor whose liability was motivated by preventive aspects, the economic realities of society required the co-existence of tort with insurance. All this served to downplay the importance of autonomy in the Torts Act of 1972. As the EU moves to legislate on the tort liability for damage caused by robots (and perhaps, further down the road, the tort liability of the robots themselves), an insight to be drawn from the creation of the Swedish Torts Act is that the downplay of autonomy and personal responsibility seems to have continued, and that perhaps the only coherent reason to maintain tort liability will at some point be the same irrational notions of justice that were only reluctantly conceded to by the thinkers contributing to the Swedish Torts Act. (Less)