Nordic Constitutionalism—A Preference for the Legislature
Because the Nordic legal tradition is neither a pure civil law system nor a classic common law system,[56] it has traditionally been classified as a separate legal family in the context of comparative law.
That is, Scandinavian countries do not rely on the same extensive codification of law as the civil law systems do, neither do they rely heavily on case law as the common law systems do. Instead, the Scandinavian legal tradition is a kind of hybrid between these two archetypes.In recent years, however, scholars have pointed out that this hypothesis about a distinct Nordic legal family is perhaps less supported when it comes to Nordic Public Law, and in the case of Constitutional Law, the current discussions are now focusing more on the question of a possible division between the East (Sweden and Finland) and the West (Denmark, Norway and Iceland)[57] and on differences and similarities within the specific constitutional features.[58]
As appears from the following, important nuances exist regarding the existence and design of constitutional advice across the Nordic countries. Nevertheless, some of the most central common constitutional features are crucial for understanding the attitudes towards constitutional control and thereby indirectly shape the approach to constitutional advice.[59] Key elements are strong parliaments and a reluctance of the courts to intervene in ‘political’ matters.[60] These common characteristics stem from different sources and have different explanations; hence, the following will focus on the most significant points of impact in a Danish context.
3.2.1 Scandinavian Legal Realism, Ross and Constitutional Jurisprudence
An influential factor in the shaping of the Nordic legal culture is the jurisprudential movement known as Scandinavian legal realism.
Represented by two distinguished scholars from Sweden and Denmark, the Swedish philosopher Axel Hagerstrom (1868-1939) and the Danish legal theoretician and philosopher Alf Ross (1899— 1979), legal realism has dominated the legal philosophy as well as the fundamental discussions of the relationship between law and morality for many years.[61]In Denmark, Alf Ross and his thoughts have had a strong impact on constitutional jurisprudence and human rights. In the course of his long career at the University of Copenhagen, Ross held the chair in three important legal disciplines: international law (1938-1950), legal philosophy (1951-1958), and constitutional law (1958-1969).[62] Consequently, the books and texts of Ross constituted the curriculum for law students for decades. For instance, Ross’s textbook on constitutional law was not replaced until the late 1980s; his thoughts and basic presumptions are in this way still alive in the older part of the current Danish legal establishment.
A key point in Scandinavian legal realism is the criticism of natural law and the idea that the law should reflect an eternal morality.[63] This basic presumption is also very evident in Ross’s works, but Ross combines the criticism of natural law with inspiration from logical positivism, striving for a jurisprudence based on scientific evidence. The outcome of these different influential factors is a doctrine based on logical arguments and as such cleared of normative statements or pre-understandings. Digging deeper into the Ross’s workin the field of constitutional law, however, reveals a rather clear preference for the will and role of the legislature.[64]
A key point in Ross’s understandings and interpretations of the constitution is connected to his statement that the parliament is and ought to be “the central wheelhouse of the state”.[65] This is most clearly illustrated in the way in which Ross interpreted the principle of the division of power that is laid down in Article 3 of the Danish constitution.
This article was originally inspired by the thoughts of Montesquieu and a similar article in the Belgian constitution, which served as a role model for the Danish constitution makers. However, according to Ross, the legal importance of Article 3 was dwindling. Ross argued that this provision in the constitution could not be used as a tool against the legislative power, as the legislature was de facto superior to the two other powers, the executive power and the judicial power.[66]Ross’s preference for the parliament is also illustrated elsewhere in his interpretation of the Danish constitution, for instance in his readings of the content of the articles on freedoms and rights. These readings are primarily rather conservative and restrictive interpretations of the fundamental rights of the citizens, leaving the parliament a lot of room for manoeuvre.[67] This is also in line with the general reputation of Ross as being a social democrat at heart.[68]
Turning from the specific Danish setting to the broader Scandinavian context, there is no doubt that the strong position of legal realism and the insistence on the primacy of politics over law is an important explanatory factor with regard to the relatively weak formal protection of human rights.[69] Obviously, there must be a spill-over effect on the attitude towards constitutional barriers for the legislature and thereby the need for constitutional advice.
It is also important to bear in mind that, in contrast to the rest of Europe, the Scandinavian countries did not have the same concrete and severe experiences from the Second World War with authoritarian regimes and infringements of human rights and dignity. Thus, the threat of an omnipotent state was not a primary concern.[70] Rather, the political concerns in Scandinavia in the post-war era were related to the efforts to build a strong welfare state without invoking too many disturbing claims from the bourgeoisie that their rights to property were being infringed.
3.2.2 Scepticism Towards the Courts—The Danish Discussions on Judicial Review
Even though there are regional variations, the Scandinavian countries share a pronounced scepticism towards courts playing a central role in the political sphere.[71] In Denmark, this is especially illustrated by the long-lasting discussions on judicial review of the legislation.[72] Thus, throughout most of the 20th century it was disputed whether the courts had the authority to test the constitutionality of laws enacted by parliament.
Initially, these controversies originated from the fact that the constitution itself did not settle the matter as the constitution makers had deliberately abstained from regulation due to disunity. In the absence of a codified constitutional rule, at the beginning of the century, the courts decided the matter by delivering judgments based on the assumption that the courts could test and potentially overrule any legislation that infringed the constitution.Accordingly, the power of the ordinary courts to review the legislation was established by case law; however, for many years this competency primarily only existed in theory. In the period from 1909 until 1999, cases that gave rise to constitutional issues were rare, and in none of the cases was the disputed rule declared inapplicable on the grounds of conflict with the constitution. Moreover, access to judicial review was only possible in cases where individuals were legally affected by a legal act for which compliance with the constitution could be questioned. Thus, the competence to review the law is only concrete and indirect. The courts in Denmark do not exercise abstract judicial review of a law and its relationship to the constitution; that is, the courts do not function as actual constitutional courts.[73]
Despite the fact that the power to review the constitutionality of legislation in principle was legally recognized by case law in the beginning of the 20th century, the issue was disputed politically for a much longer period.[74] This also explains why the matter was not formally codified in the latest amendment of the Danish constitution in 1953. The centre left and left side of the parliament, including the influential Social Democrats, were concerned that the courts would act as an obstacle to the introduction of a general welfare state and the consequent removal of privileges from the upper class. The courts were seen as elitist compared to the parliament, which in 1953 was transformed into a one-chamber system.
Even though the courts did not de facto overrule the parliament, the sceptical attitude toward the courts remained. It was not until a ground-breaking judgment in 1999[75] that the situation was finally changed: when the Supreme Court declared a legislative act unconstitutional in connection to a specific lawsuit, the Court’s judgement and the ensuing cementation of the courts’ power to overrule the parliament were broadly acclaimed in the political establishment.However, the impact of the judgment—though historic—must not be overexaggerated. The judgment has not paved the way for a new and more dynamic role of Danish courts in constitutional issues. The requirements for legal proceedings are still very strict. The traditional requirement of legal standing remains, resulting in the refusal to pass judgment on fundamental constitutional cases.[76] For example, a lawsuit about the constitutionality of Danish participation in the war in Iraq was not accepted for examination by the courts.[77] Moreover, the courts are reluctant to review the democratically elected parliament. Thus, the reasons of the judgments have often referred to a ‘manifest conflict’ criterion, illustrating the reservations towards overruling acts of parliament and emphasizing the perception of courts that observe judicial self-restraint.
In recent years, it has been discussed whether the Nordic sceptical position regarding judicial review is undergoing a change due to the international trend of rights-based constitutionalism.[78] Such a development seems especially probable in a country like Denmark, where membership of the EU and ratification of the European Convention on Human Rights would seem to entail significant influence from both the European Court of Justice and the European Court on Human Rights. However, even though this might be true for other Nordic countries, this does not seem to be the case for Denmark. Several current analyses show that Danish courts and judges maintain a rather passive and restrictive mode of interpretation in their application of international human rights norms.[79] Moreover, Danish courts have yet to address the fundamental rights in the national constitution in a new and more dynamic manner.
One of the reasons behind this continued cautious judicial review is the rigidity of the Danish constitutional text.[80] Thus, the amendment procedure is trying and cumbersome: all revisions of the constitution must be confirmed, not only by a majority of the parliament throughout two different election periods, but also by the population in a referendum with very strict requirements for voter turnout and support.[81] Consequently, the Danish constitution has not been formally revised since 1953, and suggestions to change the constitution are routinely dismissed and characterized as unrealistic. Obviously, the rigidity of the constitution influences the Danish review situation: the consequences of declaring a legal act unconstitutional are much graver when this de facto means that the will of the parliament is almost unfeasible. And this is why it is an important background factor in the discussion of the reluctance of the Danish courts in constitutional cases.
3.3