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My dissertation in legal history has the name – in English translation – Constitutional Critical Judging. The Change in the Attitudes of Nordic Judges During two Centuries. The two centuries I refer to are the nineteenth and twentieth centuries.
Constitutional critical judging is an attitude of the judge: Just as a judge presumes that an accused person is innocent until the opposite is proven, a judge can also see as her or his task to check that a statute has necessary support in the constitution and other higher legal norms before applying the statute.
But such an attitude – that the constitutionality of all statutes should be checked before application – has not been the prevailing attitude among judges in the Nordic countries of the last two centuries. On the contrary, judges have to a great extent presumed that legislation has been constitutional, and they have applied it as such – with the rare exception of cases where the unconstitutionality of legislation has been clear or obvious.
At my defence, I got the question whether it was the result or the method that defined what I have labelled constitutional critical judging. I have described it as an attitude – but is it an attitude visible only when a law is set aside as unconstitutional, or can it be visible also when a judge seriously tries the constitutionality of legislation and finds that it is constitutional?
Historically, when judges did not often give lengthy reasons for their judgments, the fact that a statute was set aside was the only, or most, clear indication that constitutional critical judging had taken place. This is evident in the discussions in Sweden and Denmark up to the late twentieth century. But nowadays, when judges give more detailed reasons for their judgments, we can, from the arguments of the judges, see that they in all Nordic countries maintain the attitude that the constitutionality of statutes, and their conformity with other higher legal principles, such as the rules of the ECHR, are thoroughly checked, also in cases where the judges conclude that the statute should be applied.
The increased focus on the reasoning of judges, and of precedents in constitutional law, suggests that there is a need for systematization. In a case reported in 1976, the Norwegian Supreme Court made a distinction between three types of constitutional cases, where the intensity of judicial review, or the margin given to the legislator in interpreting the constitution, varied. This way of thinking had roots in the Nordic doctrine and in the United States. The Supreme Court said that it would check the constitutionality of statutes regarding the personal freedom and security of citizens with the strictest standard of scrutiny, then statutes which regulated economic rights, and lastly statutes which touched upon the relationship between the other two branches of government.
I am not sure that the Norwegian Supreme Court has since actually applied its own three part structure, even if it continuously refers to it. I would argue that another more elaborate structure, which can be based upon Nordic case-law, is more relevant today. The relevant cases on which it can be based are to a great extent recent cases, but not only: interesting examples can be found in the nineteenth century Nordic judgments, too.
The structure which I propose would refer firstly to the group of cases where the strictest scrutiny is applied, the procedural guarantees, which flow from art. 6 of the ECHR. The judge thus has a special responsibility for the way the judicial procedure works and for the access to this procedure – a responsibility that has been a part of procedural law but which has gained a constitutional importance. On the next level, the judge has a responsibility for that rules and regulations have enough support in higher norms. Only thereafter, the protection of fundamental rights as freedom of speech, assembly and religion come. The reason is that these rights often have to be weighed against other fundamental rights on the same level. After that, economic rights and other rights – of which there is an increasing number – come. Lastly, on the level of the least strict scrutiny, judges check that statutes which touch upon the relationship between the other two branches of government are constitutional – however, only if it is not relevant to assess whether a rule which is to be applied against an individual has enough support in higher norms.
Apart from the obvious need for research on the topic how precedents should be read and understood in the Nordic legal orders, there is a clear need for continued research on how different categories of constitutional cases should be defined and what principles should be used for example in the weighing and balancing of different rights and freedoms against each other. A cooperation between judges and researchers is important, so that such research can lead to an even more elaborate structure and thus to increased foreseeability in judging –to the benefit both of the individual and of the legislator.