Obstacles That Prevent Legal Programmes From Functioning as a Learning Process : the Example of Malpractice Claims in the Swedish Health-Care System
| Published date | 01 June 1994 |
| Author | Barbro Sjöbeck,Ake Isacsson,BO Carlsson |
| Date | 01 June 1994 |
| DOI | 10.1177/096466399400300205 |
| Subject Matter | Articles |
OBSTACLES
THAT
PREVENT
LEGAL
PROGRAMMES
FROM
FUNCTIONING
AS
A
LEARNING
PROCESS :
THE
EXAMPLE
OF
MALPRACTICE
CLAIMS
IN
THE
SWEDISH
HEALTH-CARE
SYSTEM
BO
CARLSSON,
ÅKE
ISACSSON
AND
BARBRO
SJÖBECK
University
of Lund,
Sweden
REGULATORY
CRISIS
OR
OBSTACLES
TO
LEGISLATION?
MONG
SOCIOLOGISTS
of
law
there
is
a
more
or
less
widespread
understanding
of
a
regulatory
crisis
in
the
welfare
state.
The
legal
forms
-jL
dealing
with
the
substantive
goals
of
the
welfare
state
are
considered
to
be
simple
and
hierarchical
in
their
operation.
A
basic
conception
in
the
critical
perspective
on
sociolegal
theory
based
on
systems
theory
is
that
purposive
and
regulatory
laws
are
unable
to
cope
with
the
process
of
growing
complexity
and
increasing
functional
differentiation
in
the
social
fields
(Luhmann,
1985,
1986;
Teubner,
1983, 1986;
Willke,
1986;
G3nther,
1989).
To
handle
the
crisis
it
is
said
to
be
more
suitable
for
a
complex
society
to
develop
reflexive
procedures
of
law,
’in
order
to
cope
successfully
with
the
self-referential
organisation
of
the
regulated
subsystems’
(Teubner,
1986 : 312).
However,
as
Hubert
Rottleuthner
had
remarked,
‘the
existence
of
a
regulatory
crisis
is
treated
by
many
as
SOCIAL
&
LEGAL
STUDIES
(SAGE,
London,
Thousand
Oaks
and
New
Delhi),
Vol.
3
(1994), 281-306
281
282
unquestioned ...
[but]
it
would
be
equally
easy
to
show
many
instances
of
conforming
behaviour
or
efficient
regulation’
(Rottleuthner,
1989:273).
He
is
quite
convincing
in
his
assertion
that
the
arguments
behind
the
conception
of
a
regulation
crisis
are
’tendentious’
and
’highly
selective’.
He
also
remarks
that
the
’theoretical
interpretations
of
past
legislation
are
not
examined
in
the
light
of
real
practice’
(Rottleuthner,
1989:274-5).
According
to
a
central
hypothesis
in
the
sociology
of
law,
the
legal
system -
whether
repressive,
regulatory
or
reflexive -
has
to
define
its
boundaries
or
limits
in
a
social
context
by
empirical
standards
(Aubert,
1983).
And
every
legal
regulation
has
some
limits.
As
Rottleuthner
has
remarked,
however,
it
is
going
too
far
to
describe
limits
of
a
regulation
as
a
’crisis’
of
an
epoch
(Rottleuthner,
1989:275).
The
limits
of
law
are
not
obviously
due
to
the
legislation
in
itself
(for
example
that
it is
too
simple,
too
irrational
or
too
non-functional).
They
are
instead
brought
about
by
an
analysis
of
premises
and
obstacles
in
the
structure,
culture
and
patterns
of
actions
in
the
social
field
that
are
supposed
to
be
regulated.
The
sociological
search
for obstacles
is
fundamental
for
an
understanding
of
the
different
types
of
steering
and
of
the
steering
capacity
of
various
types
of
legal
regulation
(Bardach,
1977;
Blankenburg,
1985;
Lundquist,
1987).
There
are
various
more
or
less
rational
and
legitimate
forms
of
steering
available
to
a
democratic
society
for
realizing
its
political
goals,
and
for
changing,
adjusting
or
developing
the
norms
and
the
structure
of
actions
among
different
actors.
Legislation
can
be
used
as
such
a
form
of
steering,
even
though
the
law
is
only
one
element
in
a
political
programme.
Accordingly,
to
capture
the
dynamic
force
of
law
in
the
process
of
forming,
modifying
or
establishing
actions,
it
is
more
accurate
to
speak
of
’legal
programmes’
(Lindgren
et
al.,
1971: 77).
Per
Stjernquist
(1976),
one
of
the
founders
of
sociology
of
law
in
Sweden,
has
conceptualized
various
premises
and
obstacles
that
legal
programmes
have
to
face
on
the
front
line
of
social
practice.
These
are
as
follows.
First
of
all,
the
ideology
and
the
official
political
goals
in
connection
with
collective
values
and
social
norms
are
of
major
importance.
In
Sweden
there
has
been
a
political
aspiration
among
the
social
democrats
towards
extended
democracy
in
various
social
fields.
The
concepts
of
equality
and
democracy
were
intensified
during
the
1970s.
As
a
result,
recently
formulated labour
and
social
laws
have
incorporated
these
values
in
the
structures
of
legislation
(Gutman,
1988;
Carlsson
and
Isacsson,
1989).
Besides,
the
political
struggles
between
the
advocates
of
privatization
of
the
health-care
sector
and
those
who
plead
for
a
stable
and
large
public
sector
were
intensified
during
the
late
1980s
in
Sweden
(Marklund,
1988;
Mishra,
1990).
Second,
the
resources
of
individuals
might
be
principal
factors
in
the
development
of
a
legal
programme.
For
instance,
there
is
a
very
low
degree
of
unity
and
solidarity
among
different
interest
groups,
such
as
patients,
customers
and
parents.
Different
interest
groups
also
have
various
motives
that
may
compete
with
each
other
and
with
the intention
of
the
intruding
legal
programmes
(Selznick,
1966;
Lundquist,
1987).
Third,
economic
resources
and
the
resources
of
organization
define
structural
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