Paths to legal resilience – Identifying and negating the exploitation of vulnerabilities in the legal system

Law can be used in ways for which it was not foreseen. States can be vulnerable to actions by actors driven by an agenda to use the law with the purpose to injury the State's national security. State actors may take advantage of legal vulnerabilities so as to undermine state sovereignty, or confidence in State systems, increase costs or decrease the capacity of the state. It is therefore necessary that the legal system is resilient to such actions. Using a legal dogmatic method, this report analyses how legal vulnerabilities can be identified and discusses how the results of this analysis can be used to strengthen legal resilience, so as to strengthen Swedish national security. The analysis is based on case studies in areas of importance to Swedish national security, namely electoral interference, migration and international investments. The investigation shows that legal vulnerabilities generally arise where there are "loopholes" in the legal framework, namely overlaps and contradictions in the applicable norms that give actors an opportunity to exploit ambiguities in the interpretation of the law. There are therefore incentives for actors to take advantage of these weaknesses within the legal system to achieve their own goals. Legal vulnerabilities can arise, for example, where there is scope for corruption, either in the drafting of the law or legally binding decisions. In drafting legislation generally, too much flexibility in the legal framework can create vulnerabilities in being insufficiently precise. However, an overly rigid legal framework can result in new threats not being covered by the law in force. Flexibility in the legal framework can thus enable society to react quickly to new legal threats. The law is resilient if it is able to withstand or respond to efforts to interfere with the implementation of sovereign functions, such as the management of its national economy, the capacity to deliver core state functions and ensure the confidence of the domestic population and international community. Legal resilience is enabled and must always be built on fundamental legal structures established within constitutional law, human rights law, EU law and international law.