Constitutional Courts as Positive Legislators

ON THE ORIGINS OF THE NORWEGIAN SYSTEM OF JUDICIAL REVIEW

The Norwegian system of judicial review of the constitutionality of legislative norms is the second oldest in the world. With no explicit basis in the Constitution of 1814, which is still in force and therefore the second oldest still in existence in the world as well, it has emerged through court practice since around 1820. Furthermore, it should be noted that the final decisions (i.e., mainly those of the single Supreme Court) were systematically respected (if not always loved) by the other constituted powers.

After nearly two hundred years, it seems therefore safe to affirm that the power of judicial review of ordinary legislation does not have a firm basis in article 88 of the Constitution, read in conjunction with constant institutional practice: according to this provision, the Supreme Court “pronounces judgment in the final instance.” This goes not only for “traditional” legal matters like penal and civil law. Even constitutional law falls within the scope of judicial review.

From 1814 onward, the opinions (reasoning) on point of facts and law on which the verdicts of the Supreme Court were based were kept secret. For a number of reasons, including political concern about controversial cases of judicial review, this situation caused rising unrest in Parliament, which – notwithstanding resistance from the executive – fought through legislation (adopted in 1863) forcing the Court judges to vote individually while stating their reasons in public.