Constitutional Review：Developments in the Nordic Countries
Pia Letto-Vanamo[1]
【Abstract】The Nordic Countries belong to the very few in Europe not having a constitutional court. However，a tradition of constitutional review exists. Constitutionality is safeguarded first and foremost by mechanisms for review by the ordinary courts of the constitutionality of legislation. There are different constitutional arrangements as to how constitutional review is organised. In the following，the Norwegian，Swedish and Finnish models are discussed. Nevertheless，all Nordic countries share a spirit of constitutionalism and rule of law with general respect for the rules of the constitution and for the hierarchy of legal rules. This spirit is reflective of a parliamentary system with respect for the will of the legislator—in line with the ideology of separation of powers and consensual democracy.
1.Nordic Constitutional Landscape
Two legal phenomena regularly surprise foreign exchange students participating in my comparative law course on “Nordic Law in the European Context”：They learn that the Nordic countries are countries without a civil code，and that they do not have constitutional courts. Since Ditlev Tamm writes in this volume about the Nordic civil law systems，I will only discuss issues of Nordic constitutional review in the following.
As noted，no Nordic constitutional courts exist. Thus，these countries belong to the very few in Europe not organizing constitutional review through a special court. Globally，too，this phenomenon is quite uncommon. Nevertheless，a tradition of constitutional/judicial review exists. Actually，one can speak of several models of constitutional review in the Nordic Countries. Differences between the models have historical reasons，but the basic idea is the same. The parliament is the most important legal actor；it is the parliament—not the judiciary—that has the last word on the law.
Thus，Nordic judicial systems hold great respect for their national parliaments as democratically chosen legislators. Furthermore，none of the Nordic supreme courts plays such a political role as do constitutional courts. At the same time，none of the supreme courts or other controlling organs possess the competence to formally nullify parliamentary acts.
The non-existence of constitutional courts does not mean that Nordic legal systems do not share some features of the continental European legal tradition.[2] For instance，legal systems are based on the idea of a division between private and public law. Key constitutional documents are written or codified even though they are supplemented by other formal acts，amendments，constitutional conventions or customary praxis. Nordic systems also favour the idea of constitutional acts with the status of lex superior，where constitutional acts are located at the top of the hierarchy of national legal sources.
Constitutionality is safeguarded first and foremost by mechanisms for review by ordinary courts of the constitutionality of legislation. However，constitutional arrangements differ as to how judicial review is organised. Denmark does not have an explicit constitutional provision concerning judicial review. None the less，it hesitantly recognises judicial review. Finland and Sweden have written constitutional provisions concerning judicial review，although in practice these provisions are applied cautiously. Norway added judicial review to the Constitution by an amendment in 2014. The Norwegian，Swedish and Finnish systems are described in more detail below，in Section 4.[3]
Furthermore，a difference exists between the degree of “judicial activism”. Sweden，Finland，Denmark and Iceland all are less active，whereas in Norway the Supreme Court plays an active role in judicial review. At the same time，its case law occupies a crucial position among Norwegian national legal sources. Nevertheless，all Nordic countries share a spirit of constitutionalism and rule of law with general respect for the rules of the constitution and for the hierarchy of legal rules. This spirit is reflective of a parliamentary system with respect for the will of the legislator—and avoidance of conflicts between the parliament and the supreme courts—in line with the ideology of separation of powers and consensual democracy.
Nordic parliamentarism also protects fundamental rights. Hence，three types of legal sources are applied：domestic constitutions，European conventions，and global conventions. Constitutional protection varies from country to country，but in general the European Convention on Human Rights（ECHR）is the most important human rights instrument. All the Nordic countries have incorporated the ECHR into their domestic legal systems.
2.Supreme Court as Guardian of the Constitution in Norway
The Norwegian Constitution Act[4] was adopted in 1814，and is the second oldest written constitutional document in the world still in force. At the same time，the role of customary constitutional law is greater than in the other Nordic systems. Furthermore，the constitution enjoys a stronger political and cultural position in Norway than in the other Nordic countries. To Norwegians，their constitution symbolizes freedom，independence and democracy.
The constitutional system in Norway consists，as in Sweden and Denmark，of a constitutional monarchy with a parliamentary democratic system of governance. In contrast to Denmark，Finland and Sweden，Norway is not a European Union（EU）member. According to the Constitution Act，public power is distributed among three institutions：the parliament，holding legislative power；the government，holding executive power；and independent courts，holding judicial power. The monarch wields very little actual political power，but holds a symbolic function as the head of state and official representative of the country.
Norway’s exceptional role in the Nordic constitutional landscape is linked to the fact that ex post control of the constitutionality of legislation is actively exercised. The central actor is the Supreme Court（Høyesterett）. As noted，the constitution is highly respected. The same concerns the Supreme Court，which is seen as the final guardian of the constitution. Furthermore，of all the Nordic countries Norway maintains the strongest tradition of judicial review of legislation. The Supreme Court reviews whether a statute is in conflict with the constitution.[5]
As in the USA，in Norway，too，this competence was originally not included in the written Constitution Act before 2015. Nevertheless，a tradition of constitutional/judicial review emerged as early as the 19th century. In the reform of 2015 a novel provision was added to the Constitution Act. This provides that “[i]n cases brought before the courts，the courts have the power and obligation to review whether Acts and other decisions by the state authorities are contrary to the Constitution”.
In more general terms，the Norwegian system is seen as a combination of the strong US-style judicial review and the Nordic parliamentary-friendly approach. Thus，the Supreme Court does not declare an act null and void but sets aside the provision in question. Moreover，there is very little similarity with the European constitutional court approach，because the Høyesterett eliminates the legal-normative power of a provision only in the actual concrete case before the Court. Nevertheless，the decision means that the provision loses its de facto authority in other cases too.
3.Power of “the People” in Sweden
Sweden has five constitutional documents. These are the Instrument of Government（1974）[6]，the Act of Succession（1810），the Freedom of the Press Act（1949），the Fundamental Law on Freedom of Expression（1991），and the Parliament Act（1974）. As noted，Sweden is a constitutional monarchy with a parliamentary system. Like Finland，Sweden has been an EU member since 1995.[7] The Instrument of Government contains the basic principles of the form of government，dealing with government functions，fundamental freedoms and rights and elections to the parliament（in Swedish Riksdag）. In 1979，the Instrument of Government was reformed and a cautious form of judicial review was introduced as part of the written constitution. The rule concerned stated that a court could declare a provision of a parliamentary act or a government decree to be in violation of the constitution and thus inapplicable，but only if the error was of an “evident” nature. However，this rule—which was worded similarly to Finland—had very little practical effect on the behaviour of the courts.
Since 2011 an act no longer needs to be in evident conflict with a constitutional rule in order to be set aside by a court or other public body. Thus，“（I）f a court finds that a provision conflicts with a rule of fundamental law or other superior statute，the provision shall not be applied….” However，the reform did not mean a dramatic change in the role of the Swedish parliament because the provision in question also contains a second part which states that：“In the case of review of an act of law under paragraph one，particular attention must be paid to the fact that the Parliament（the riksdag）is the foremost representative of the people and that fundamental law takes precedence over other law.”
In other words，even while giving in to pressure for stronger judicial review，the Swedish system in fact sought to fuse together the traditional parliament-centred thinking and the more recent idea of separation of powers with a stronger judicial review approach. Actually，Swedish constitutional-political culture involving a strong role for the parliament also characterises Swedish doctrine on sources of law. Preparatory works（travaux préparatoires）to legislation are actively used by Swedish lawyers to obtain more information about the law—about the will and the ratio（reasoning）of the legislator for the rules concerned.
4.Unique Role of Constitutional Law Committee in Finland
The Finnish Constitution is written in a single act，[8] which entered into force in 2000.[9] Before that there were four separate constitutional acts. The Constitution Act contains provisions about the principles for the exercise of public power，the organisation of the government and the relationships between the highest state organs. Additionally，the Act contains a catalogue of fundamental and human rights，which has had a great impact both in legal practice and in Finnish constitutional law scholarship.
In 2012 the Constitution Act was amended to clarify the division of powers between the President of the Republic and the government. Generally speaking，Finland is a parliamentary democracy with semi-presidential elements：It has a president as head of state and with the competences listed in the Constitution Act. Hence，legislative power is exercised by the parliament，whereas the President of the Republic plays a minor role. According to the Constitution，the top level of governance is the Council of State（the government），which is headed by a prime minister and a requisite number of other ministers. Following the principle of parliamentary systems，the government and its individual members must enjoy the confidence of the parliamentary majority. Again，judicial power is vested in independent courts—at the highest level in the Supreme Court and the Supreme Administrative Court.
In comparative analysis the most distinctive feature of the Finnish system is the way the constitutionality of legislation is safeguarded. Even in a global context this is a unique system. As noted，Finland has no constitutional court. However，courts are allowed to perform judicial review to a certain extent. Since the new Constitution Act of 2000，courts can perform judicial review of legislation. Moreover，it is stated that the courts and other public authorities are obliged to “interpret legislation in such a manner that adheres to the Constitution，and to respect fundamental and human rights”.
Hence，according to the Constitution Act（Article 106），the courts must give preference to the Constitution when they decide a case，if applying a parliamentary act would be in “evident conflict” with the Constitution Act. In a handful of cases，starting from 2004，the courts have applied Article 106，but in the overall picture judicial review by the courts plays a minor role in terms of safeguarding the constitutionality of legislation.[10] However，certain signs are indicative of the gradually growing constitutional role of the judiciary.[11]
In practice，the constitutionality of laws is examined in advance，before an act enters into force. The key actor in this process is the Constitutional Law Committee of the Finnish parliament. The function of such control is to prevent bills（draft laws）that conflict with the Constitution being enacted through the parliamentary legislative procedure. From the constitutional point of view，the Committee’s key role is to issue opinions/reports on bills sent to it for consideration and on the constitutionality of other legislative matters as well as their bearing on human rights.
Although its members are ordinary members of the parliament，the Committee operates on a non-party-political basis（there is no party-political discipline）in reporting to the parliament on constitutionality. Further，the Committee calls academic experts（on the basis of constitutional convention）to hearings，to advise the Committee in its discussions on the constitutionality of the bill concerned. Statements/reports by the Committee are official statements. They are also respected by the parliament as well as the government，which seeks to redraft the provisions of a bill that the Committee has found to be unconstitutional before the bill is passed into law. If unconstitutionality is significant，this means in practice that the bill is withdrawn and the government has to think of another way to proceed. Statements/reports by the Constitutional Law Committee are published，and they hold a special status as legal sources. Additionally，the Committee follows its own “precedents”.
All this results in a unique system of controlling the constitutionality of legislation，which combines an abstract ex ante and concrete case-bound ex post review. Here，the role of the Constitutional Law Committee is significant，as indeed is the role of the academic experts guiding the Committee’s views. Professors and other leading constitutional law scholars are regularly invited to Committee hearings：It is not uncommon for a professor from the University of Helsinki to write（and then orally present）40-60 opinions/a year，which thus has a great impact on the interpretation and application of the Constitution and fundamental rights in the country.
Interestingly，during the last two to three years the special status of the Constitutional Law Committee as well as the power of constitutional scholarship have provoked some tension between legal（constitutional）and political approaches. Not only have statements by the Constitutional Law Committee been criticized—more often，the views of constitutional law scholars are seen as “blocking” political reforms or complicating the drafting of new legislation. This has concerned，for example，government proposals for changes to（privatisation of）the social security and health care system.
In this context，even reforms towards constitutional review by a constitutional court have been mooted. That，however，would mean a farewell to the Nordic constitutional family，as well as a fundamental change to Finnish legal and political culture. In fact，these ideas are not merely about creation of a new court. In the following，this will be examined in more detail.
5.A Non-Nordic Model：Constitutional Review by Special Courts
The structural difference between the two main models of constitutional review—between the US model and the European model of the constitutional courts—is well known. Each model has its own history. The history of the first model is largely linked to the US Supreme Court case Marbury vs. Madison of 1803. The characteristics of the latter have their origin in the Austrian Constitutional Court（Verfassungsgerichtshof）of 1920，but the majority of constitutional courts emerged during the second half of the 20th century. Nevertheless，constitutional courts are not a part of the ordinary judiciary but are special constitutional organs，with power to review the constitutionality of legislative acts. Typically，this involves an abstract review.
The European constitutional courts[12] cannot be separated from fundamental political changes in the countries concerned. There are three generations of courts-all born from a so-called system change. The first generation of constitutional courts—the German and Italian courts—were founded in the early 1950s after the fall of the Nazi/Fascist regimes. The second generation—the Spanish and Portuguese constitutional courts—followed the collapse of the authoritarian regimes of Franco and Salazar in the 1970s. The third generation—the constitutional courts of the new（post-communist）democracies of Central and Eastern Europe—were founded in the 1990s. The courts of all generations were founded as symbols of a new democratic system.[13]
None of the three waves of democratization，however，had its origin among the people. In Germany and Italy，a democratic system was established under the tutelage of the victors（mainly the USA）. The other changes were mostly based on negotiations between the political elites，not democratically legitimized. At the same time，the new constitutional courts were founded out of a mistrust of the former majoritarian institutions，which had been misused and corrupted by the Nazi/Fascist or Communist regimes. Thus，the constitutional courts were seen as representing the essence of democratic change. In that way they also enjoyed “revolutionary legitimacy”. The image was supported especially by the abstract competence of the courts，the competence to declare an unconstitutional law to be null and void—the competence of a “negative legislator”，as defined by Hans Kelsen，the founding father of the Austrian Constitutional Court.
In fact，the judges of the European constitutional courts are not “ordinary” judges. In spite of the political role of the courts，many of their judges are university professors of law elected or nominated for a fixed term. At least during the early years of a new constitutional court，it has been important to guarantee and create an image that the judges do not sympathize with the ideas and opinions of the former regime. At the same time，decisions and opinions of the constitutional courts are often long and theoretical，and based on comparative analysis.
Since the establishment of the German Constitutional Court in 1951，[14] constitutional courts have been founded not only in Europe but also in other continents. For instance，there is a strong “German style” constitutional court in Seoul，in South Korea，and another in Bogota，in Columbia. For their part，the constitutional courts are witnessing a strong global trend of constitutionalization of the law. In addition to Kelsenian abstract competence，protection of individual fundamental rights（on the basis of constitutional complaints）today belongs to the competence of the German constitutional court—and many others besides constitutional courts.
6.Conclusion
The general trend of constitutionalization，[15] as well as the strong European human rights approach，have also had an impact in the Nordic Countries，both in legal practice and in legal scholarship.[16] Especially clear have been the impacts in Finland，where application and interpretation of the rules and principles of the new Constitution of 2000 have been under active discussion. Still，the idea of a constitutional court as guardian of the constitution and its institutions is strange in the Nordic context. Until now，the democratic systems in the North have been based on a certain degree of social stability and on ideas of continuity and consensus. Transferring a “foreign” legal institution to the Nordic environment could have unexpected and unwished consequences not only for Nordic constitutional practice but also in the Nordic constitutional mind.
宪法审查在北欧国家的发展
皮亚·莱托-瓦纳莫
【摘要】北欧国家属于极少数没有宪法法院的欧洲国家，但是它们却有着宪法审查的传统。这些国家主要是通过普通法院对立法的审查机制来保障合宪性的。至于如何组织宪法审查，不同国家有着不同的宪法安排。本文讨论了挪威、瑞典和芬兰三个国家的模式。尽管如此，所有北欧国家都具有宪制和法治精神，以及对宪法规则和法律规则等级制度的普遍尊重。这一精神体现在尊重立法者意愿、符合三权分立和共识型民主意识形态的议会制度之中。
[1] Professor of Law，Faculty of Law，University of Helsinki.
[2] For a brief comparative overview see Jaakko Husa，Nordic Constitutional Mentality，in Pia Letto-Vanamo et al.，Nordic Law in European Context（Springer Nature Switzerland 2019），pp. 41-60；See also Husa，Nordic Reflections on Constitutional Law：A Comparative Nordic Perspective（Frankfurt am Main，Peter Lang 2002）.
[3] For the Danish constitutional system see Helle Krunke，“Constitutional Identity seen through a Danish lens”，Retfaered. Nordisk Juridisk Tidsskrift 2014，pp.24-40.
[4] Kongeriket Norges grunnlov 1814 no 17.
[5] Rune Slagstad，The Breakthrough of Judicial Review in the Norwegian System，in R. Slagstad，E. Smith（eds.），Constitutional Justice under Old Constitutions（The Hague，Kluwer 1995），pp.81-111.
[6] Kungörelse（1974：152）om beslutad ny regeringsform. Successionsordning（1810：0926）. Tryckfrihetsförordning（1949：105）. Yttrandefrihetsgrundlag（1991：1469），Riksdagsordning（2014：801）.
[7] For a general overview see Joakim Nergelius，Constitutional Law in Sweden（Alphen van den Rijn，Kluwer 2011）.
[8] Suomen perustuslaki/Finlands grundlag 731/1999.
[9] See in more detail Jaakko Husa，The Constitution of Finland—A Contextual Analysis（Oxford，Hart 2011）.
[10] See J. Husa（2011），pp.186-187.
[11] Tuomas Ojanen，“From Constitutional Periphery toward the Center-Transformations of Judicial Review in Finland”，Nordic Journal of Human Rights（2009），pp.194-207.
[12] As a brief overview see Giuliano Amato，Corte costitutiozionale e Corti europee. Fra diversita nazionali e vision commune（Bologna I Mulino 2015）.
[13] László Sólyom，“The Role of Constitutional Courts in the Transition Democracy. With Special Refrence to Hungary”，Internation Sociology 18/1（2003）pp.3-31.
[14] Michael Solleis（ed.），Herzkammern der Republik，Die deutschen und das Bundesverfassungsgericht（Munich，Beck 2015）.
[15] See e.g. Kaarlo Tuori，European Consitutionalism（Cambridge University Press 2015）.
[16] See e.g. Helle Krunke，Björg Thorarensen（eds.），The Nordic Constitutions. A Comparative and Contextual Study（Oxford，Hart 2018）.