The Norma Research Programme is an excellent environment in which to develop this vulnerability interest, in different fields related to people’s everyday life in the years to come. This approach to the law also goes hand in hand with goals set out in the Europe 2020 Strategy of the Social Market of the European Union, prioritising inclusive growth alongside smart and sustainable growth.
My research focus on children’s legal position in relation to private and public actors may be viewed in such general terms as power, respect and recognition. I am interested in how these actors respectively observe the rule of law in relation to the dependent child who is exposed to different aspects of power, and is thus vulnerable. This interest also applies to other groups who are vulnerable in society. In legal terms, dependency and vulnerability may sometimes be balanced by legislation or other governmental activity, and in some cases may be solved in court. Already in my dissertation I investigated how the child could obtain legal security, increased autonomy and protection of his personal integrity. Subsequently, I have become increasingly interested in issues that in one way or another are related to the dependent and vulnerable individual’s need for power, respect and recognition, and I have written about such issues. The terms I have elaborated upon are the child as a subject and as an active participant. For example, in one book I focus on foster children’s status as subjects and participants10, in a report I investigate children’s participation rights in legal matters during youth care11
9 Mattsson, T., Socialtjänst och e-förvaltning. E-tjänster för äldre och personer med funktionshinder, Förvaltningsrättslig tidskrift, No 3, 2010, pp.255–270.
, and in an article I discuss the problem of
10 Mattsson, T., Barnet som subjekt och aktör. En rättslig studie om barn i familjehem, Iustus förlag, Uppsala 2006.
11 Mattsson, T., Ungas delaktighet. Exemplet institutionsvård, SiS Forskningsrapport 2, 2008
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realising legal rights without associated procedural participation tools for children.12
One relevant question for many issues concerning power, respect or recognition for vulnerable and dependent persons is the practical implications of the legislation and the legal practice. By tradition, when investigating such issues, the focus is often on the individual. The idea behind such an approach is that a legal scrutiny of a person’s acts can take place without considering the environment in which the person lives and acts. However, the focus on the subject, isolated from the setting, may have the consequence that social and other problems are interpreted on an individual level, and that structural explanations, such as age or sex, are not made visible. This problem certainly concerns administrative matters and legal proceedings with children, because they constitute a group with clear dependency to adults, both in a practical and a legal way. Also, the social welfare system of which the care proceedings is a part, is based on the principle that an inquiry into the individual’s needs shall emanate from the surroundings of the person, for example the family, the school, the social life et cetera. In addition, applying the principle that the best interests of child shall be the primary consideration in the individual case, presupposes considering the structure surrounding the child, such as the cultural and societal environment. In one article I take the standpoint that both individual and structural elements are of concern in care proceedings, and I use some examples to demonstrate how such an approach makes visible certain flaws in the legal position of the child.13
This approach to the law, together with my interest in multi-disciplinary studies, is currently practised in cooperation with Assistant Professor in criminal law Ulrika Anderson. Our joint research project, financed by the Swedish Research Council, deals with juvenile crime and delinquency issues, in connection to gang activity. We are looking at how the courts treat these youth in public and administrative courts, in juvenile justice cases and in juvenile delinquency cases. Our interest is in how the fact that the youth are
12 Mattsson, T., Child Participation in the Decision-Making Process. Some reflections on a dialogical approach for children’s recognition, in Children in Law (forthcoming).
13 Mattsson, T., Några rättssäkerhetsaspekter rörande individ och struktur vid prövningen av omhändertaganden av unga, Nordisk socialrättslig tidskrift No 1, 2010, pp. 97–112.
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part of a certain ‘structure’ – the gang – is discussed by the courts. We are thus focusing the already-mentioned interaction between the legal tradition of looking at the individual as separate from her surroundings and the practice actually including the surroundings, at least implicitly, in the discussion of evidence.
Market Forces, Market Prices and the Market Functional Pattern
Per Norberg
1. Introduction
I started as a research assistant within The Norma Research Programme and completed my doctoral thesis with Anna Christensen as my supervisor (who was replaced by Ann Numhauser-Henning when she passed away in 2001).
Anna Christensen was an inspiring person. She held the same intellectual affection for the market functional pattern as she did for the other patterns in the normative field. One important reason for this is that she understood that the notions of justice underlying this pattern are social, in the same sense as the values underlying protection of established position and just distribution, for instance, are social.
My first book was about the conflict between competition law and housing law, and it dealt primarily with rent regulation.1 The second book – my doctoral thesis – was about the conflict between competition law and labour law regarding industrial action.2
1 Norberg, P., Konkurrenslagstiftning och bostadspolitik – En studie av den svenska hyresregleringens förhållande till EG:s och Sveriges konkurrensrätt, Juristförlaget i Lund 1999.
I used the theory of law as normative patterns in a normative field, and since competition law was involved, the
2 Norberg, P., Arbetsrätt och konkurrensrätt. En normativ studie av motsättningarna mellan marknadsrättsliga värden och sociala värden, Juristförlaget i Lund 2002.
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market functional pattern was important. The more I worked with this concept, the more I realised how different the market functional pattern was from the concept of the market itself.3
In economy, the starting point is often a free trade between two persons resulting in a profit that can be shared. If we apply this sort of thinking to society at large, market forces would appear to be strong. Two persons striving to make a voluntary transaction on a market appear to be hard to stop. If market forces are perceived to be both strong and economically efficient, the state need not intervene to support markets. Nevertheless, the state may need to intervene to redistribute the wealth produced on the market.
However, if the starting point is not the transaction itself, the picture changes. Trade takes place when people trust each other. The market functional pattern describes the social values that must exist to create the trust necessary before the market can work its magic. These values are not stable in the sense that once people have agreed on them, they stick to them.
Instead, these values need to be upheld constantly. Röpke puts it this way:
‘…economic integration – as far as its geographical extent and its intensity are concerned – always presupposes a corresponding non-economic “social”
integration which provides the setting described. The economic integration cannot in the long run extend further than the social integration, and its intensity is also determined by the degree of the latter. This is the cardinal law which governs the rise and fall, expansion and recession of trade in the history of mankind’.4
If the values that underpin the market economy are not stable, the state needs to protect them, and intervene against powerful actors threatening these values. In this article, I will argue that more focus needs to be given to
3 A comparison can be made with Erhag and Stendahl – in particular, the part where Stendahl describes how she used complementary facts and theories to deepen her understanding of just distribution/social equality; see Stendahl’s contribution elsewhere in this publication.
4 Röpke, W., International Order and Economic Integration, D Reidel Publishing Company, Dordrecht 1959, p. 72f.
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the values creating the conditions that permit the market to work. These values are at the core of the market functional pattern.