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The Flagship ‘Speech’
Jan M. Broekman
In Chapter 1, it was shown that one difference between overall assessments and balancing of interests is that a law-based balancing of interests refers to a license to take an action. Should camera surveillance be permitted? Should exemption be granted for a building within the shoreline-protected area? Is there extraordinary cause to sustain the petition for disclosure? These cases contain an uncertainty – that must be factored in when the decision is made – on what consequences the decision can be expected to have. If it concerns an application for camera surveillance intended to reduce crime, the decision-maker must assess whether, and in that case how much, crime will be reduced in the camera surveillance area and as a result of camera surveillance. The reduction in crime is the utility of the decision. The harm that a decision on camera surveillance may result in is that local residents may feel uncomfortable being under such surveillance. The interest in suppressing crime must be weighed against the privacy interest and this is done in the model that the Swedish Data Protection Authority calls the principle of preponderance of evidence in which utility and harm are placed in the scales.1 Similar reasoning can be done concerning the weighting performed in a claim for declaratory judgement. Will this judgment eliminate the uncertainty of the legal relationship? What happens if it does not? A declaratory judgement over the entire legal relationship between the parties is beneficial because it could remove all uncertainty, but if uncertainty remains, there is a risk of additional processes that can be costly and cause inconvenience. Even in this case, a prognostic assessment must therefore be made along with the suitability assessment, containing utility and harm, the last perhaps primarily in regard to the financial costs of the process. As stated in several places in this book, the additive model described and used, SAW, is based on there being no uncertainties or at least that this uncertainty is small with regard to the existence of criteria and the probability of an outcome occurring. The model is, in other words, deterministic with regard to the outcome and the criteria. It has been said that a consideration of uncertainty can be added by calculating for each option the probability of it occurring.2 It has also been argued that uncertainty in law can be handled with fuzzy logic.
The evaluation of evidence has been a controversial topic in Nordic jurisprudence for a long time, and particularly in recent decades. Two methods, the evidentiary theme method and the evidentiary value method, have been set against each other. These methods will be briefly presented below as they provide a framework for the following sections in the chapter.1 A few other evidentiary theories in the Nordic countries and the concept of robustness will also be briefly described. Thereafter, in the following section, it will be asserted that the basic view that is still prevalent in Swedish evidence law doctrine, that the evaluation of evidence is an epistemological activity based on the use of sentences of experience and general deduction rules, appears too narrow as an explanatory framework for the intellectual activity labelled evaluation of evidence.2 The next section will discuss how fuzzy logic can be used as a method in the evaluation of oral statements. This method of analysing and evaluating evidence deviates from the prevailing probability theory models and should be seen as an alternative or a complement to certain evidentiary situations. As has been described in this book, MCA can be used on questions of law. In the book the method has been applied on the balancing of interests and overall assessments. MCA provides a structured way to deal with these assessments in the same way as methods for the evaluation of evidence, such as the evidentiary theme method or the evidentiary value method, are structured ways to handle questions of fact. The objective of using structured methods in both situations is to reduce the risk of arbitrariness and safeguard law and order. However, as far as questions of law are concerned, it has been fully accepted that the balancing of interests and overall assessments are made intuitively and that the room for discretion is significant. Evidence, on the other hand, is not seldom calculated to the decimal point in legal doctrine because it should be exact. This attitude begs the question of why correct evaluation of evidence is deemed to be more important than correct application of law. The overall objective with this chapter is to demonstrate that the gap between evaluation of evidence and the application of law can be closed as far as the use of structured methods is concerned. In addition, using fuzzy logic on oral statements gives evidence an interesting twist.