Another two members leave the Swedish Academy, including the permanent secretary Sara Danius, after a six month long crisis that started with allegations of sexual abuse against a person with close connections to the Academy. What does this mean for the Academy’s work? It’s not easy to say. The legal situation is unclear.

What does it mean for the Swedish Academy’s work that another two of its members leave the work? The answer depends on a legal interpretation. Several lawyers have commented on the Academy’s legal status in recent days.

Today there is a fixed number of forms in which an ”association” can legally function. (The Swedish legal term “association” covers both companies, foundations and associations.) There are different forms of companies: limited liability companies, limited companies, limited companies and simple companies. In addition, there are associations. Non-profit associations, such as the football club, or economic associations, such as consumer owned cooperative food chains. Finally, there are foundations. This is the full list, according to the law today. The problem is that the Swedish Academy doesn’t fit into any of these categories.

The Swedish Academy was formed in 1786, before modern Swedish association law took its current form. When the Academy was formed, the King was not only Head of State, as he is today, but also the holder of all public power. When Gustaf III formed the institution, he was what we today would call for a dictator, omnipotent.

According to its statutes, the Swedish Academy is now in a precarious position. The voting rules in the statutes require in some cases twelve members for decision-making. Twelve members are required to rule out someone. Likewise, more importantly, twelve members are required to elect a new member. The statutes are in this regard clear.

The statutes, however, are relatively clear even in other respects. It is relatively clear that the permanent secretary is supposed to be a lifelong position, which has not stopped Academy from rotating the position among its members. The Academy has thus itself found room for some flexibility, in its interpretation of the statutes.

This has led to a discussion of how the statutes could be amended. For historical reasons, the Swedish Academy is a legal anomaly. But what does it mean for how the association could change? Could His Majesty the King unilaterally revise the rules? The Royal Court holds this opinion. Could it be a matter for the “normal” courts? The simple answer is: We do not know.

As a lawyer, it is interesting to see that the interpretation of the statutes and the legal status of the Academy brings about an issue that we recognize from the vivid discussion of how to interpret the United States constitution. Conservative interpreters (sometimes) believe that the constitution should be interpreted based on what the persons behind the constitution may have assumed for intentions for its authorship. (The position is sometimes called “originalist”.) Others, as described in the US political debate as Liberals or Democrats, often advocate that the interpretation of the Constitution must be based on contemporary demands – not based on how the situation was 1789. (The “living constitution” position.)

 

One can approach the interpretation of the Swedish Academy’s statutes in a similar way. Its rules should either be interpreted in line with the intentions of king Gustaf III in the 18th Century, or in line with our current understanding of how legal entities are formed and how they can change. None of these starting points can be said to be wrong or correct, from a strictly legal perspective. It’s a matter of choice.

 

For my part, however I am skeptical that the king has the legal power to independently change the statutes. Even though the Academy is an anomaly, it seems too anachronistic to assign an individual, even though it is head of state, the power to unilaterally change the rules an institution of such importance, and with such resources, as the Swedish Academy. But on the other hand. Who else could?

(This blog post is for the most part a translation of a Swedish column in Svenska Dagbladet.)

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