Andreas Follesdal and Marlene Wind are the guest editors of this special issue. All contributions have been approved and commented upon in a double blind referee process. The articles in the second section have been approved according to the criteria of the Norwegian University and College Council (Universitets- og høgskolerådet) as qualifying as scientific publications.
This text aims at describing recent developments in Swedish constitutional law, especially concerning the judicial protection of basic human rights. It does so by examining judicial preview as exercised by the Law Council (lagrådet) and judicial review as exercised by the courts. Special emphasis is devoted to changes in recent years, which have been brought about by the influence of European law, which has probably been stronger than in other Nordic countries, given the rather weak tradition of judicial review in Sweden.
Keywords: Human Rights, Judicial review, Swedish constitutional history.
Norway has a long tradition of judicial review which has previously been applied particularly in relation to §§ 97 and 105 of the Norwegian Constitution. With the Human Rights Act of 1999 there has been an increased attention to conflicts between human rights treaties incorporated by the act and other Norwegian legislation. The practice of the Norwegian Supreme Court on these issues shows different views depending on the rights in question and also clearly dissenting opinions. The Court seems to try to strike a balance between the implementation of human rights and a protection of other qualities of Norwegian legislation.
Key words: Human rights, judicial review, constitutional law, international human rights treaties, EEA law.
This contribution explores if and how parliamentary precedence is a feature of Danish legal thinking and legal practice. Taking legal philosophy into consideration and going through various aspects, such as the ranking of state powers, the conception of the role of the courts, legal sources, judicial review and the reception of European law, the following can be concluded: There is a propensity for parliamentary precedence as a soft or defeasible hierarchy, but the inclination is somewhat equivocal and not strictly Danish. Scandinavian realism fits well with parliamentary precedence and the influence lingers on in the minds of the lawyers brought up under Alf Ross’s reign.
Keywords: Parliamentary precedence, judicial review, role of courts, Scandinavian realism, tripartion of powers, reception of European law.
This paper discusses the current status of judicial review in Iceland based on theory, recent jurisprudence and some older cases. It is argued that Icelandic courts openly and unhesitatingly examine whether laws are consistent with a broad array of constitutional provisions. The institution and practice of judicial review are largely uncontroversial, although the outcome of a handful of cases is disputed. However, it is argued that the role of the courts regarding judicial review is undertheorized and possibly undervalued. Neither the exercise of judicial review in general nor individual cases receive the necessary attention.
Keywords: Judicial review, Iceland, Icelandic constitution, international law in domestic courts.
Transformations within the institution of judicial review and the growing role of the judiciary in general have been one of the most significant constitutional developments in recent years in Finland. The power of courts to review the compatibility of parliamentary legislation with EU law, international human rights treaties and the Constitution is linked to the issue of the appropriate division of powers between the legislature and the judiciary, as well as the increasing “politicization of adjudication” and “adjudication of politics”. As a consequence, the proper scope and legitimacy of judicial review have become one of the central issues in Finnish constitutional debate. The article provides an overview of the major transformations within the institution of judicial review in Finland, arguing that the reciprocal influence of certain domestic sources of dynamics, EU membership and international human rights treaties have had a fundamental impact on judicial review and role of courts in general. This shift of competence to the judiciary has also brought it from the periphery toward the center of the Finnish constitutional and political system.
Key words: judicial review, constitutional rights, human rights, EU law, the scope and legitimacy of judicial review, democracy.
The article compares a number of conceptions of democracy with regard to the role of judicial review in order to show the many different meanings associated with terms such as “majoritarian” and “constitutional” democracy. At least four categories of the relationship between democracy and judicial review are identified. In a first category are those conceptions of democracy that have no room for judicial review. Second, some conceptions of democracy recognize civil rights as necessary for a democracy to work, but refuse to make independent courts and judicial review a general recommendation. Third, other conceptions of democracy adopt judicial review by independent courts as a part of liberal or constitutional democracy. Finally, in a fourth category are conceptions of democracy that not only recommend judicial review of the constitutionality of legislation in relation to the civil rights, but argue for a more far-reaching judicial review.
Key words: Democracy, Constitutionalism, Judicial review.
The EU scepticism in the Nordic countries is doubtlessly related to conceptions of democracy. However, the hypothesis of this article is that the EU scepticism and scepticism towards judicial review in the EU are particularly generated by the distinction between the national and the supranational rather than the distinction between the judicial and the legislative/executive powers. The article maps three narratives on democracy – a narrative on democracy as “Nordic democracy, on democracy as “separation of powers” and on democracy as “dialogue” – and analyzes their inferences for the desirability and practicability of European integration and judicial review in the EU.
Keywords: conceptual history, narratives, democracy, democratization, EU politics, European Union (EU), European integration, judicial review.
This article investigates three ideas that have had a hegemonic position during the formative period of the majoritarian model of democracy: (1) Value Relativism of Axel Hägerström, (2) Tingsten’s procedural concept of democracy, and (3) Jörgen Westerståhl’s popular-will theory of democracy. These three ideas are often believed to give support to a kind of moral subjectivism that is hostile to constitutionalism. An abstract conceptual analysis is combined with a more historical approach focused on the impact of these ideas through different normative interpretations. The conclusion is that neither Value Relativism (and the associated Scandinavian legal realism), nor the procedural concept of democracy has any anti-constitutional implications. The popular-will theory of democracy, on the other hand, has a stronger theoretical link to anti-constitutional ideas.
Keywords: Anti-constitutionalism, democracy, value-relativism, proceduralism, opinion representation.
The article discusses legal-political controversies over the implementation of international human rights conventions in Norway, with special attention to claims concerning judicialization and power transfer effects. Insofar as a dynamic interpretation of state obligations by international supervision agencies is said to affect the balance of legislatures to courts, such claims create a platform for critique of governmental initiatives to implement human rights conventions. In a recent controvercy over the incorporation of CEDAW into the 1999 Human Rights Act, government lawyers have on this basis argued what I here call a doctrine of “appropriate restraint”. The article recapitulates the CEDAW controvercy, and critically evaluates the doctrine’s content in relation to its power transfer claims. On May 8th 2009, the Norwegian Government presented the bill on incorporation of CEDAW into the Human Rights Act.
Key words: The Human Rights Act, judicialization, judicial review, the power transfer thesis, CEDAW.
In the Nordic countries, the primacy of parliament stands out as a common defining feature vis-à-vis other branches of government. In Denmark, which is the country in focus in this article, there has historically been a strong vision of parliamentary supremacy which is reflected in the current public debate on the ECJ. In the public sphere and in the Danish concept of democracy courts are regarded as a counter-majoritarian force. Drawing on previous research this paper argues that Denmark’s reluctance to collaborate with supranational courts like the ECJ is due to the country’s view of the Parliament as elevated above the other branches of government and the unfamiliarity with constitutional democracy.
Keywords: Danish Parliament, majoritarian democracy, judicial review, role of courts.
According to critics in some of the Nordic countries the bodies that monitor and adjudicate international human rights courts are undermining their own legitimacy by adhering to undemocratic practices.
The strongest normative case against the judicial review that such bodies perform could be directed at the European Court on Human Rights (ECtHR), which monitors many well-functioning democracies. Section 1 lists normative objections to judicial review in general. Section 2 sketches a normative defense this practice, and Section 3 presents some relevant aspects of the ECtHR. Section 4 returns to consider the various objections. The mandate, composition, institutional environment and mode of operation of the ECtHR renders it immune to several of these criticisms. The conclusion identifies some objections that merit further attention, both for empirical research and for normative analysis.
Keywords: Human Rights, International judicial review, legitimacy, democracy, European Court on Human Rights, European Convention on Human Rights.