Governing Gender Inequality in Swedish Legal Systems

5514 words (22 pages) Essay in Family Law

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Last modified: 28/03/19 Author: Law student

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Marriage, Family, and Labour; how is gender inequalities governed in these areas within the Swedish legal system?

Introduction

‘’The idea of separate sexes has been around since humans began constructing civilizations and have progressively continued despite profound structural changes such as industrialization and the movement of production out of the household.[1]’’

Swedish legal system is influenced by Roman law, though on the German; and not the Napoleonic model. Sweden also has a penal and civil law system by which the laws are created by their Riksdag (Parliament).

Sweden’s important principal and source of law are statues, namely the four fundamental laws which govern their legal system and these are;

  • 1810 Act of Succession;
  • 1949 Freedom of the Press Act;
  • 1974 Instrument of Government;
  • And 1991 Fundamental law On Freedom of expression.[2]

‘’Sweden has no private codification corresponding to the French code Civil or German Bürgerliches Gesetzbuch, but has one huge statue called the Sverige rikes lag, which was enacted in 1734 with the intent to cover the whole legal system.’’[3]

This essay will look at how gender inequalities are governed in the areas of marriage, family, and labour within the Swedish legal system by comparing and contrasting how the laws do protect against inequalities between the sexes. It will draw upon comparative methods to compare the area of Tort in the two legal systems: Sweden and United States (U.S.).

Furthermore, this essay will find the laws governing each area; how gender inequalities arise, and by counter-arguing how the laws do safeguard/promote equality. Ultimately, this essay will conclude on how the laws in Sweden either help to promote and/or to undermine gender equality in the chosen areas of Marriage, family, and labour.

Marriage

Gender equality is one of the cornerstones of Swedish society. The aims of the policies were to allow equal opportunities and rights. ‘’The annual Global Gender Gap Report, introduced by the World Economic Forum in 2006, measures equality in the areas of economics, politics, education and health. Since the report’s inception, Sweden has never finished lower than fourth in the Gender Gap rankings.’’[4] Therefore, we see that Sweden is ahead of the game when considering gender equality.

First, we must look at the laws that govern marriage.

In the 1960s, Sweden experienced new waves of radicalism, the country entered into what was known as the ‘Red Years’ [1967-76]. This brought a massive gender turn which impacted the family. The Social Democratic Party abolished its Women’s league and the socialist housewife in 1972. Therefore both parents could be bread-winners, which they had to remove the joint household tax and instead enacted the income tax; which individuals could be taxed [5].This also brought about rapid social changes in Sweden and to the institution of marriage. So in 1969, the marriage code (Äktenskapsbalken) was reformed, although the committee did not release the final report until 1981. However times were changing and the marriage code was reformed again to accommodate the equality of the sexes, as well as to protect the rights of homosexual cohabitants.[6]

Interestingly, common law marriage wasn’t recognised until the 1960s, however; it was not uncommon especially in northern rural areas of Sweden. The Minister of Justice in 1969 stated that the new marriage code should be neutral in order to be fair to unmarried couples. Although, the neutrality did bring in problems as it would diminish the material contents of marriage as an institution, so in order to solve this the committee enacted a provision in 1973. This allowed unmarried couples to be allowed the same rules that applied to married couples, as long as they had children together.[7]

Lastly, there have been amendments to the inheritance law in order to strengthen the protection of surviving spouses, so they can inherit the estate, however; if the deceased spouse has children from another union, then the inheritance must be divided, this is known as ‘deferred inheritance (efterarv). However; due to the amendments, surviving spouses had greater control over marital property, therefore, ending the bloodline.[8] This means that children would not become so economically dependent on their parents.

Marriage exists to encourage, sustain and protect the unique institution; it embodies a rival set of loyalties that prevent the emergence of desired androgynous individual dependency on the state.[9] In other words, the people are encouraged to be independent and not rely on their state.

So do these laws that govern marriage promote or undermine gender equality. The Swedish law has had a lot of improvements in order to make it as fair as possible for both sexes, as well as homosexual cohabitants. This shows that the law is trying to envisage the social changes and allowing individuals to be independent of each other and not relying heavily on one parent to be the bread-winner, as so the state. However; Stanley Kurtz states that same-sex marriage will undermine the institution of marriage[10] , so how does this link with gender equality, well it is not about the privileges of gay people but rather on the parts of both genders and being a family. It is about how women are not intended to be the communist housewife and men to be the sole supplier. It urges both genders to adjust the family and family.

Divorce

The legal institution of separation was abolished so divorce can only be obtained by a petition to the court[11]. The law of divorce falls under the Äktenskapsbalken (Marriage Code) 1987. Chapter 5, section 1 states ‘If the spouses agree that the marriage should be dissolved, they have the right to divorce. This will be preceded by reflection, if both spouses request it, or if any of them live permanently with their own children under 16 who are under the custody of her husband ‘. Section 2 and 3 states that if the spouse does not want a divorce, a reconsideration period of six months must be presented and after the period, the decree is granted. Section 4 states that if the spouses have lived apart for more than two years then they are entitled to a divorce without the reconsideration period. This prevents overhasty divorces being made. And section 5 states that if the spouses suspect that they are related then no reconsideration period is required for a divorce. Same applies for spouses who are already in a marriage or still married[12].

Due to these changes in the law, it has allowed divorce to be easy and unilateral. Also, the community cannot have significant interests in the preservation of marriage as the fault is no longer considered; both these changes have removed fidelity and adultery from marriage’s institutional construct[13]. With the implementation of ‘no-fault divorce’, we notice that the divorce rates have increased whereas marriage rates have decreased, and this can be linked with the high levels of female employment in the 60s. What does this mean? It means that women were able to become more financially independent and not the socialist housewife that they were to become. This allowed equality to flourish, meaning that women had the choice to also become the breadwinner however with that; it meant that fertility would decline.[14] As women would choose to work than have children and stay at home.

Family

The growth of women working outside the home has increased and with that, has brought a change regarding the duty of the house[15]. Now that women can also become the breadwinner, the man does not have to bear the sole responsibility to support the family. So forth, they have a mutual agreement to contribute to the family. However; if one of the spouses does not make the necessary contribution then the courts may require them to make a contribution if the other spouse brings it to court. To point out that if the marriage has been dissolved, the spouse still has to contribute to the welfare of the other spouse; especially if they have children. This is specified in the Parent and Children’s Code[16].

How do the laws promote gender equality? Divorce has allowed the distribution of work between both genders. In other words, both spouses can get a divorce if both agree to it (a mutual agreement). Both of the spouses do have to contribute to the family by allowing both to support themselves as well as the other. However; the Swedish policy has created a context for men’s identity at work and practices that enable the parents, with regard to men’s access to children, but these policies are restraining with regard to action against men’s violence post-separation/divorce[17].

Swedish governments often boast about gender equality in Sweden. Government upon government has claimed that these advances have given Sweden a strong international position. The latest is the feminist government, spearheaded by Stefan Löfven, which insists that Sweden is and ought to be a frontrunner in the area of gender equality. On its home page, the government writes that Sweden has a great international reputational capital to maintain and develop. The country’s position in the Global Gender Gap (World Economic Forum) ratings has gone from the top in 2006 to fourth in 2014.The number of men in parliament has instead gone up in two consecutive elections, as has the number of men in parliamentary committees and as committee chairpersons[18].

Increasing equality does have its advantages such as; men can become more active in family life and women can become economically independent as previously mentioned. However; the greatest advantage is that no one would be forced into predetermined gender roles based on their sex and this would have a positive impact on the children[19]. The idea of a mutual process where women enter the traditional realms of men, and men enter the traditional realms of women, has been the ideological foundation of Swedish family and equal status policy for the last 40 years; so the Government initiated a paternity leave campaign in 1976-2006 in order to make maternity insurance gender-neutral, it has allowed men to take parental leave however; this undercut, rather than promoted, a more radical version of gender equality as men became secondary instead of primary parents[20].

Despite the necessary steps to adapt to the rapid social changes, women still take on much more responsibility of the household and children than men do, leading to a reproduction of gender inequality in society[21]. This means that, even though the Government has tried to make everything gender-neutral in order to encourage equality between the sexes and eradicate the division of labour, there is an increase of women losing her negotiations especially when children are involved. Therefore the gender inequality in Sweden has reproduced behind the back of the agents[22].

Labour

Sweden has come a long way in making sure that both sexes are treated equally in the workplace, however; the pay differences still remain with men earning more than women[23]. So why is there not an equal pay? ‘’ Women’s average monthly salaries in Sweden are less than 87 percent of men’s – 95 per cent when differences in choice of profession and sector are taken into account[24]

Following the expansion in 2017 of the Discrimination Act 2009, there are no grounds for harassment in the workplace of one’s transgender identity, sex, disability nor sexual orientation[25]. However; there are a number of ‘blind spots’ that remain. According to Eva-Maria Svensson and Åsa Gunnarsson from their comprehensive review and analysis of the Swedish equality framework: ‘’in fact, the Swedish state has shown a lack of ambition to fully challenge the gendered segregation of the labour market, to change the uneven distribution of economic and political power in many sectors of society, and to fulfil the political goal of shared parental responsibilities[26]

Gender equality in employment is regulated in the Discrimination Act [2009]. It prohibits direct and indirect gender discrimination as well as instructions to discriminate and there is no express legislation on the justification of pay differences apart from the definition above. A number of cases have been heard by the (Swedish Supreme) Labour Court, though. The negative outcome of most of these cases has been criticised by claiming that the Labour Court has willingly accepted ‘the market argument’ made by employers as an excuse for pay differentials, thereby failing to live up to the standards of EU case law. Some of these cases, however, reflect progress as regards the possibilities to instigate legal claims based on a comparison of work of equal value, harassment (including sexual harassment), in line with relevant EU Directives. Considering the extent to which Swedish women now take part in regular wage-work, the persisting gender pension gap is a slowly diminishing problem. The unjust division of unpaid work is best addressed by the rules on parental leave benefits and other care benefits, providing pension rights[27].

Moreover, in the statutory scheme, pensions are calculated on the basis of common life expectancy tables for men and women, to the benefit of women: women on average live longer than men, so women can be expected to receive a larger pension. There are also rules on the transfer of pension rights between spouses that, despite being gender neutral, mainly benefit women, who are typically the ones with lower pensions in their own right. Nevertheless, women can be expected to make up the majority of poor pensioners for many years to come: the ‘flexible retirement’-positive characteristics of the new Swedish pension scheme – allowing pension rights to be earned on a lifelong basis and providing for flexible combinations of part-time work and pension – have been discussed as ‘a trap’ for women, because women with low lifelong earnings would thus find themselves obliged to go on working after the age of 65, in search of an adequate pension[28].

Sweden has taken an active and somewhat innovative approach to dealing with domestic violence within its criminal law, notably with the Women’s Peace Reform of 1999 (see Burman), and it has regarded domestic violence, as well as prostitution and trafficking (Yttergren), as being integrally connected to gender inequality. Yet such progressive developments are not always extended to embrace and address the needs of cultural ‘others’ present in Swedish society. Indeed, there appears to be significantly less willingness on the part of the law and the agencies of the welfare state to acknowledge the difficult situations[29].

What seems to emerge as a central concern in the papers exploring the ‘collision’ between the Swedish approach to gender equality and the liberal discourse on gender equality associated with the European Union, is that the more liberal, market-orientated EU legal discourse places a strain on particular aspects of the Swedish welfare and equality system. This, it is argued, serves to create a pattern of gendered differences that follows the conventional divisions between the sexes. Thus, for example, it is argued that the current institution of more liberal and individualised workplace laws tends to favour men rather than women (Ulander-Wänman)[30].

A strong gender divide is still prevalent in the jobs market and a large number of women work part time. But despite a slight decrease in gender segregation – women’s work hours have increased and women’s levels of education are higher than men’s – it has only had a very small effect on wages. Even taking various parameters such as age, education, work hours and that women and men are found in different sectors and work groups, women’s salaries have stayed at 93 percent of men’s salaries. This figure has remained much the same since the middle of the 1990s. Income inequality between women and men is still 93.500 kronor a year, or about 3.6 million kronor for 40 years of work[31].

During the 61st session of the UN Commission on the Status of Women (CSW) in New York on 13–24 March, the Minister for Gender Equality Åsa Regnér stated that Sweden were to prioritise the issue concerning differences in pay and pensions between women and men; gender segregation in the labour market, including gender-stereotypical educational; women’s opportunities to take part in working life on a full-time basis and the role of men and boys in the promotion of gender equality[32].

However from a socialist-feminist point of view, the gender inequality within the labour market is still relative to the autonomy of capitalism and patriarchy, and that these gender inequalities are still being maintained despite progression within the legislation[33].

Comparing the Swedish Legal System to the United States (U.S.) legal system

We already know that Sweden has a civil law system and is influenced by Roman-German law. Sweden’s laws are created by their Parliament. (Refer to Introduction).

The U.S. legal system is rather complex but has adopted a common law system based on the English common law, but at a federal level except for the state of Louisiana, which still follows the French Civil Code[34].

To understand their legal system, it helps to recall that the U.S. was founded as a union of thirteen colonies, claiming independence from the British Crown- known as the Declaration of Independence [1776]. The constitution began to shift power to the federal government after being ratified in 1788. Even today, states do not have much authority[35].

Their law is derived from a number of sources; constitutional; statutory; treaties; administrative regulations and common law. These all further complicated the U.S. law and as previously mentioned, and they rely on judicial precedent[36].

However; the main aim of comparing both the legal systems of Sweden and the States, is to compare the law of Tort and produce results that will allow us to better understand the differences and similarities within in their legal culture.

Tort is a broad area of law in the U.S., in which the plaintiff sues a defendant for personal injury or damage to property caused by the negligence or wrongful conduct of the defendant. The historical evolution of tort in the U.S. was by common law; legal rules made by judges in the process of deciding cases, as tort has evolved in an ad hoc fashion, and legislatures. The major areas of tort are; personal injury; medical malpractice; negligent misrepresentation; defamation and product liability, just to name a few[37].

Product liability has been rapidly growing. This growth is due to the changes in the standard of proof, as negligence was used in order to prove the damages that were caused by another. Today, courts use strict liability (much like the UK). However; the law varies from state to state[38].

Swedish tort law resembles the common law approach in the way that the law is made, even if the structure and content are very different. The general characteristics of Swedish tort law are case law which was developed partly within a statutory framework. The general and most important statute: The Tort Liability Act (skadeståndslagen, SkL) from 1972. However; it lacks the definitions and rules on many important issues.[39] The Swedish Tort Liability Act 1972 chapter 2, section 1(1) state that a person who causes injury or damage to another shall be liable for damages. Section 1(2) also states the damages may be adjusted if the liability is deemed unreasonably onerous in view of the person causing injury or damage[40].We see that the law of tort between the two legal systems does not differ.

Conclusion

To conclude, how gender inequality is governed in the areas of marriage, family and labour within the laws of the Swedish Legal System; gender equality is the foundation of Swedish society. The Riksdag have introduced new policies and reforms in order to accommodate the rapid social changes that were taking place during the 60s. The improvements to the laws have also tried to make it as fair as possible for both sexes.

With that, men can become more involved with their family especially with the introduction of a paternity leave; which allows men to take leave, same as a woman taking maternity leave. Women are able to become more financially independent, become the breadwinner alongside their spouses, and not be a ‘housewife’. Men have entered the traditional realms of women and vice-versa. However; women still have to take more responsibility for the family and household, so inequality does still take place behind the backs of the Riksdag. Men have also become the secondary partners as the introduction of the parental leave has promoted a more radical version of gender inequality.

Furthermore, Sweden is still a long way from making sure that both genders are treated the same, especially when it comes to equal pay in the public/private sectors of labour.

Overall, Sweden has tried to make everything as gender-neutral as possible and tried to eradicate gender inequality in all areas, but they still have a long way to go before they can reach the ideal of no gender inequality in all sectors of life.

Bibliography

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  • Burnham W, Introduction To The Law And Legal System Of The United States
  • Calasanti T and Bailey C, ‘Gender Inequality And The Division Of Household Labor In The United States And Sweden: A Socialist-Feminist Approach’ (1991) 38 Social Problems
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[1] Cecilia L. Ridgeway, ‘Interaction And The Conservation Of Gender Inequality: Considering Employment’ (1997) 62 American Sociological Review.

[2] The Constitution Of Sweden (Sveriges Riksdag 2016) <http://www.riksdagen.se/en/SysSiteAssets/07.-dokument–lagar/the-constitution-of-sweden-160628.pdf/> accessed 12 January 2017.

[3] MICHAEL BOGDAN and EVA RYRSTEDT, ‘Marriage In Swedish Family Law And Swedish Conflicts Of Law’ (1995) 29 American Bar Association.

[4] ‘Gender Equality In Sweden | The Official Site Of Sweden’ (sweden.se, 2017) <https://sweden.se/society/gender-equality-in-sweden/> accessed 10 March 2017.

[5] Allan Carlson, ‘Deconstruction Of Marriage: The Swedish Case’ (Heinonline.org, 2007) (pp161-164)<http://heinonline.org/HOL/Page?handle=hein.journals/sanlr44&div=12&g_sent=1&collection=journals> accessed 7 March 2017.

[6] Fariborz Nozari, The International Journal Of Legal Information: The 1987 Swedish Law Reform (1st edn, The Institute for International Legal Information 1989). Pp219-20

[7] Id pp227-230

[8] Id pp231-232

[9] Allan Carlson, ‘Deconstruction Of Marriage: The Swedish Case’ (Heinonline.org, 2007) (pp170-71)<http://heinonline.org/HOL/Page?handle=hein.journals/sanlr44&div=12&g_sent=1&collection=journals> accessed 7 March 2017.

[10] Stanley Kurtz, The End Of Marriage In Scandinavia: ‘The Conservative Case’ For Same-Sex Marriage Collapses (2004) p26

[11] Fariborz Nozari, The International Journal Of Legal Information: The 1987 Swedish Law Reform (1st edn, The Institute for International Legal Information 1989). P222

[12] Sveriges Riksdag, ‘Marriage Beam (1987: 230) Swedish Code Of Statutes 1987: 230 T.Om SFS 2016: 245’ (Ministry of Justice L2 1987).

[13] Allan Carlson, ‘Deconstruction Of Marriage: The Swedish Case’ (Heinonline.org, 2007) (p164)<http://heinonline.org/HOL/Page?handle=hein.journals/sanlr44&div=12&g_sent=1&collection=journals> accessed 7 March 2017.

[14] Tomas Frejka, Childbearing Trends And Policies In Europe (1st edn, Books on Demand 2008).

[15] Fariborz Nozari, The International Journal Of Legal Information: The 1987 Swedish Law Reform (1st edn, The Institute for International Legal Information 1989). P223

[16] ibid

[17] ‘Men’s Violence, Men’s Parenting And Gender Politics In Sweden: NORA – Nordic Journal Of Feminist And Gender Research: Vol 10, No 1’ (Tandfonline.com, 2017) <http://www.tandfonline.com/doi/abs/10.1080/080387402317533844> accessed 11 April 2017.

[18] ‘Sweden Is Not Some Kind Of Equality Paradise’ (Thelocal.se, 2015) <https://www.thelocal.se/20150310/sweden-is-not-some-kind-of-equality-paradise> accessed 26 March 2017.

[19] Åsa Lundqvist, Family Policy Paradoxes (1st edn, Policy 2011). Pp61-9

[20] Roger Klinth, ‘The Best Of Both Worlds? Fatherhood And Gender Equality In Swedish Paternity Leave Campaigns, 1976-2006’ (2008) 6 Fathering: A Journal of Theory, Research, and Practice about Men as Fathers.

[21] Bo Rothstein, ‘The Reproduction Of Gender Inequality In Sweden: A Causal Mechanism Approach’ (2010) 19 Gender, Work & Organization.

[22] Ibid.

[23] ‘Gender Equality In Sweden | The Official Site Of Sweden’ (sweden.se, 2017) <https://sweden.se/society/gender-equality-in-sweden/> accessed 10 March 2017.

[24] ‘Sweden And Gender Equality’ (sweden.se, 2017) <https://sweden.se/society/sweden-gender-equality/> accessed 10 April 2017.

[25] Maria Drakopoulou and Margaret Davies, Introduction: Gender Equality And Othering In The Swedish Welfare State (2nd edn, 2012) <http://file:///C:/Users/Ellen/Downloads/50-289-1-PB.pdf> accessed 15 April 2017.

[26] Eva-Maria Svensson and Asa Gunnarsson, ‘Gender Equality In The Swedish Welfare State’ (Journals.kent.ac.uk, 2012) <http://journals.kent.ac.uk/index.php/feministsatlaw/article/view/51/160> accessed 15 April 2017.

[27] Ann Numhauser-Henning, The Policy On Gender Equality In Sweden (1st edn, 2015) <http://www.europarl.europa.eu/studies> accessed 13 April 2017.

[28] id

[29] id

[30] id

[31] ‘Sweden Is Not Some Kind Of Equality Paradise’ (Thelocal.se, 2015) <https://www.thelocal.se/20150310/sweden-is-not-some-kind-of-equality-paradise> accessed 26 March 2017.

[32] ‘Sweden A Strong Voice For Women’s Rights At 61St Session Of The UN Commission On The Status Of Women’ (Regeringskansliet, 2017) <http://www.government.se/articles/2017/03/sweden-a-strong-voice-for-womens-rights-at-61st-session-of-the-un-commission-on-the-status-of-women/> accessed 16 March 2017.

[33] Toni M. Calasanti and Carol A. Bailey, ‘Gender Inequality And The Division Of Household Labor In The United States And Sweden: A Socialist-Feminist Approach’ (1991) 38 Social Problems.

[34] William Burnham, Introduction To The Law And Legal System Of The United States. Pp1-38

[35] Outline Of The U.S. Legal System (1st edn, United States Department of State 2004) <https://usa.usembassy.de/etexts/gov/outlinelegalsystem.pdf> accessed 11 April 2017. Pp4-11

[36] Ibid.

[37] Ronald B. Standler, Element Of Torts In The USA (1st edn, 2011) <http://www.rbs2.com/torts.pdf> accessed 7 April 2017. Pp-2-5

[38] Outline Of The U.S. Legal System (1st edn, United States Department of State 2004) <https://usa.usembassy.de/etexts/gov/outlinelegalsystem.pdf> accessed 11 April 2017. Pp-122-23

[39] Mårten Schultz, ‘Tort Law In Sweden.
An Introduction’ (Faculty of Law, Stockholm University, 2005).

[40] Tort Liability Act 1972 (1st edn, 1974) <http://www.finlex.fi/en/laki/kaannokset/1974/en19740412.pdf> accessed 29 April 2017.

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