Ruling the waves 1, 2, 3

The first constitutional wave is described as the widespread adoption of judicial review, human rights and strong courts at the national level in Europe after the Second World War. Constitutionalism, or what Lüstig and Weiler refer to as a ‘democratic ontology’,Footnote ⁶⁰ had one important purpose in the post-war era: to keep a check on parliaments after the heinous atrocities of the War through judicial review.Footnote ⁶¹ Constitutionalism and judicial review was simply canonised and came to represent the very notion of what many understood as the rule of law (and not by man).Footnote ⁶² As they put it, after the war:

It transformed democracy away from majoritarianism with little (if any) scrutiny by judges into a thick conception of constitutionalism, where judges and courts were central.Footnote ⁶⁴ By being non-elected guardians of the new constitutions, judges were asked to protect democracies against themselves. This meant that democracy was no longer only about politicians who – due to their legitimacy in a popular vote – had the ultimate power to decide as they pleased. The constitution was above them, limiting their power, even if it was adopted by the people directly or by political representatives as constituent powers. The understanding of what democracy entailed changed, turning the courts and the judges into staunch human rights and minority protectors in light of the excesses of the Weimar Republic and the Nazi regime, when it turned fully authoritarian. Complete judicial independence was thus necessary. Courts would never be able to truly protect the individual against the state if they remained ‘technical helpers’ as Scandinavian legal realists like Alf Ross defined the role of judges or ‘bouche de la loi’, taking direct instructions from the political majority, for instance, through preparatory works. Constitutional theorists even talk about the constitutional transformation after the war and the role of judges as guardians, as representing a new ‘fear of the people’ or at least ‘fear of unbound majorities’.Footnote ⁶⁵ In the most extreme interpretation (which goes further than the most widely adopted version of constitutional democracy), this amounted to a Lowensteinian form of ‘militant democracy’Footnote ⁶⁶ that could use undemocratic means to protect democracy in extreme cases.

The second wave of Constitutionalism is closely linked to the first and appeared partly in parallel, representing a growing use from around the 1980s to approximately 2010s ‘of the international norms as a higher law within national constitutional orders’. This happened, already in the immediate post-war decades in Europe, not only via more and more frequent reference to the treaties of the European Union and the primacy of EU law, which acquired a status of ‘higher law’ vis-à-vis national legislation and constitutions but also included the European Convention of Human Rights and the ECtHR case law. Suddenly, states (governments, national courts and citizens) started referring to these supranational legal bodies as authoritative sources of law, at times trumping the rules and prerogatives of their own democratically elected legislators. National constitutions were, in most cases adjusted to international treaties and court decisions, which was considered the only right thing to do. Quickly, this – together with the numerous new UN bodies that emerged – became part of the liberal world order and part and parcel of the now well-known story taught in international and constitutional law classes across the continent and beyond as the ‘constitutionalisation of national law’ or ‘internationalisation of constitutional law’.Footnote ⁶⁷ The depiction of a European and even global constitutionalism became so much an obvious ‘reality’ – pushed along by a combination of supranational institutions, politicians, and legal actors themselvesFootnote ⁶⁸ – that most observers neglected those strongholds, where the first two waves were met with a deep-rooted but often only tacit resistance.Footnote ⁶⁹ In Europe the Nordics and the UK are good examples of a silent anti-constitutionalist reception of this development with increased focus on legal dualism as a protective shield. If you have a dualist legal culture and tradition, international law needs to be transposed into national law via national legislation to acquire the status of ordinary (not constitutional) law. Even though this at times, and in particular more recently, has turned international law into a battleground, the fact that many countries in those decades treated international differently at home, never impacted the broader narrative of thick constitutionalism as an all-embracing European and Western norm.

The natural question to ask is whether the backlash we see so many expressions of today is somehow – perhaps at a deeper level – related to the much more recent pushback against constitutionalism, described as the third wave of constitutionalismFootnote ⁷⁰ by Lüstig and Weiler? The frank answer is yes, but it probably only indirectly aligns with the anti-constitutionalist Nordic position. Mainly because the Nordic anti-constitutionalism is not a ‘new’ phenomenon and – more importantly - never was a truly ideological position. In particular, not after the war. The court-sceptic northerners thus very rarely engaged theoretically with post-war constitutionalist debates. The only exception is perhaps the classical Scandinavian realists themselves and their early interventions against natural law and the accompanying need for strong courts with intense review powers to protect human rights. What Lüstig & Weiler allude to when talking about the third wave is thus not the Scandinavians who they only mention in a brief footnote, but rather the rejection of constitutionalism and supranational law among politicians and supreme and constitutional courts in many backsliding states that have emerged across the globe in recent years. In Europe, not least in Poland and Hungary but also beyond the European Union as a much broader phenomenon.Footnote ⁷¹ What they described in 2018 when their article was first published, has however only exploded since then and represents a situation where national courts and governments fundamentally question the raison d’etre of the compulsiveness of supranational law but also the more fundamental idea and legitimacy of courts as reviewers of political decisions.Footnote ⁷² The third wave includes, in other words, a much broader tsunami of sceptical voices overlapping with the general mega-trend of decreasing trust in the liberal order and international institutions over the past 10–15 years.Footnote ⁷³ Simultaneously to this, but probably not directly related, we also have a growing number of scholars who have started to criticise what they see as an increasingly unhealthy ‘juridification of politics’, otherwise hailed by lawyers and international organisations across the globe for the past 70–80 years.Footnote ⁷⁴ Even constitutionalist scholars have started to talk about the sovereignty-limiting bonds of international law and some even talk about an ‘ideology of constitutionalism’, criticising the constitutionalisation of politics, including the establishment and power given to constitutional courts at the national level over the past century.Footnote ⁷⁵

Whether we indeed are facing a third wave or even tsunami of anti-constitutionalism, which may roll everything back that has been built up in the post-war era, is still up for debate. It is also both an empirical but also a theoretical question if, and to what extent, it links up with the current wave of populism in Europe and around the globe. It is also an intriguing question whether what we here term Nordic ‘anti-constitutionalism’ can be seen as somehow affiliated with this ‘return to politics wave’ we currently witness, or whether it represents a different less ideological and perhaps less dangerous strand. Before moving to the next step of the analysis and further into an attempt to answer these questions, it is important to note that the third wave or legal euro-scepticismFootnote ⁷⁶ as some scholars also call it, can take many forms. It should not be reduced to the opposition towards counter-majoritarian institutions and the privileging of the legislator (and thereby ‘the people’) over courts. We are only occasionally – though more and more frequently – confronted with an outright rejection of the European constitutional order or international law as such. In other words, it would be a mistake to attribute the third wave only to, what some have described as ‘abusive constitutionalism’Footnote ⁷⁷ or the type of more spectacular rule of law offences we have seen in recent years in Hungary and, until recently Poland when focusing on the European Union. As we define it here the third wave surges in many other countries, their supreme or constitutional courts as well as among politicians, academics, and individual judges. For instance, when politicians openly ignore, mock or criticise judges or, on a more general note, demean supranational law and courts by publicly delegitimising its standing and authority. It can be argued, however, that the Brexit referendum in the UK in 2016, the election of President Trump in the same year together with Hungarian backsliding since 2010 and 8 years of ‘reforms’ of the judiciary in Poland under PiS leadership, let the spirit out of the bottle and, rather surprisingly, inspired even mainstream politicians to suddenly articulate outright anti-constitutionalist stands. A good example is Michel Barnier as well as his contender Valerie PrecesseFootnote ⁷⁸ during the French Presidential election campaign in 2021. To win the conservative nomination (and in direct continuation of the argument flowing from the K3/21Footnote ⁷⁹ judgment in Poland by the Constitutional Tribunal), they both started questioning the primacy of EU law, saying that it should be rolled back.Footnote ⁸⁰ This was (perhaps less surprisingly) also a recurring argument in the election programme of Marine Le Pen. In the UK being ‘anti-courts’ has almost become a trivial part of the entire conservative movement and is certainly central to Nigel Farages Reform UK project. Pigeonholing judges – national as well as international – as ‘enemies of the people’Footnote ⁸¹ has thus become the norm. In Denmark, the Danish People’s Party has already for decades attacked supranational law, judges and experts – including those who simply state that EU (or international) law should be upheld and conflicting national law set aside.Footnote ⁸² While questioning the primacy of EU law and denouncing experts may be expected from the populist right, it was perhaps more surprising that a Danish Social Democratic Minister of Justice, Nick Hækkerup, (who also holds a Ph.D. in EU law) during a debate in the Danish Folketing on surveillance versus citizens’ freedom in 2021, publicly joined the ‘anti-court’ choir by furiously attacking the European Court’s rulings on the logging of citizens’ data. Arguing that the Court made it more difficult for the Danish police to investigate crimes when they could not ‘tap’ citizens’ telecommunications, he argued that:

Hækkerup also expressed dissatisfaction with the EU Court’s dynamic style of interpretation, which, according to him, meant that the judges could just decide ‘as they wishes’. Few people paid attention to these comments from the Danish Folketing, of course, but the international reaction would probably have been slightly different had it come from a Hungarian or Polish Minister of Justice at the time. While these kinds of attacks exemplify a situation where politics hits back at the law in a very populist way, some national judges have also in recent years signalled decreasing approval of supranational law in their own case law. In the academic literature, it has already for some time been described how national constitutional courts – not least in Germany and Poland – have questioned different aspects of overriding European law, inspiring other supreme and constitutional courts in the European Union.Footnote ⁸⁴ These courts and judges have thus themselves started to exercise ‘judicial review over transnational and international governance adjudication’ thereby representing the ‘new identitarian seam’ in constitutional discourse’ that Lüstig and Weiler talked about in their article.Footnote ⁸⁵ So while the first two waves of constitutionalism came to define ‘the staple of constitutional law theory for decades’, most prominently in the US and Europe, some politicians and domestic courts now want to take back power from, in particular, international legal regimes, treaties and norms with reference to their own ‘constitutional identity’ and what is presented as a more agreeable form of national oriented democracy.Footnote ⁸⁶ In its most radical version, it is a kind of ‘weaponisation of constitutional culture’ against supranational review, which they claim is encroaching on their national prerogatives.Footnote ⁸⁷

How do the Nordics fit into this if at all? We will move on to that now. However, it is important here to reemphasise that even though the Nordics did not buy into any kind of ‘thick’ European constitutionalism after the war, they quickly managed to become known as ‘dutiful compliers’Footnote ⁸⁸ with European and international law. As regards EU law they soon became known for having few infringement cases against them – and by generally avoiding to make too much noise about the European constitutional set-up, by keeping a low profile.Footnote ⁸⁹ As we will get back to below the practical or ‘tacit tolerance’ can (again) be attributed to the Nordic’s commitment to political (rather than legal) constitutionalism and majoritarian democracy. The fact that it was a political decision to join the EU and the Convention of Human Rights,Footnote ⁹⁰ left no doubt what had to be done by bureaucrats and judges. But it was never an embrace of European constitutionalism as such.Footnote ⁹¹ Rather it was loyalty to the national political decision of the government, parliament and even in some instances ‘the will of the people’ through referenda.

In the Nordics, it has largely been left to the civil servants to juggle this schizophrenic dilemma of fitting fiercely majoritarian democracies into a European constitutional order (except Norway, of course, which did not join the Union but did become part of the almost just as binding EEA). By not embracing constitutionalism, Nordic member states, and in particular their national courts and judges, however, refrained from helping develop and shape European law from below as the CJEU had hoped for and as most judges in other member states did.Footnote ⁹² One thing was the extremely low number of preliminary references coming from the Nordic states (even today).Footnote ⁹³ Another was the engagement with the Courts development of EU law. As a high ranking (non-Nordic) judge noted in an interview at the European Court in Luxembourg in the spring of 2024 ‘…we rarely see the national judges from the Nordics here when we discuss the future of Europe in our internal seminars. They just don’t show up’.Footnote ⁹⁴ The problem of ‘staying at home’ and not trying to influence EU law is, however, not without consequences. If judges send few cases and make few interventions citizens cannot be sure that their EU rights are enforced to the same degree as in other member states.Footnote ⁹⁵ Research has shown that national judges in the Nordic countries infrequently cite either EU Court decisions or decisions coming from the ECtHR in their own case law.Footnote ⁹⁶ And when both Danish and Swedish Supreme Courts again and again emphasise that the powers conferred to the EU are specific, limited and can be taken back,Footnote ⁹⁷ we are a very far cry from the spirit of ‘national courts as European courts’ as the President of the European Court of Justice, Koen Lenaerts, has stressed that they should be – building on the idea of equal protection for all citizens regardless of member state.Footnote ⁹⁸ As we will see below the Nordic judges are in many ways much closer to the rhetoric of the German Constitutional Court in its infamous Maastricht decision but also – in spirit – not that far from the Polish judges in the Constitutional Tribunals controversial K3/21 judgment.Footnote ⁹⁹

The influence of Scandinavian legal realism and procedural democracy

To fully understand the depth of Nordic political constitutionalism and its sceptical stance towards human rights protection by courts, the impact of Scandinavian legal realism cannot be discounted. Scandinavian legal realism (or at least the way it has been interpreted) is not just a legal theory but intimately linked to a view of democracy where the majority in parliament is seen as having the highest degree of legitimacy. If majoritarian democracy is conceived as more legitimate, it concurrently implies that only laws adopted by the majority (and enforced by the courts) are considered as ‘real’ law.Footnote ¹²⁵ Case law when pragmatically and conservatively applied as precedent, is, of course, also fully accepted and applied by the courts on a daily basis, but not in any kind of normative dynamic interpretation that diverges from the intention of the legislator. This strong emphasis on positive law (and legislators intend) thus constitutes a preference for politics that has clear state backing. This has consequences for human rights, which, due to their (often) metaphysical natural law origins, are not accepted as ‘true positive law’ – in particular of course, if they have not been explicitly adopted by the political majority in a constitution or a treaty. Clearly, courts as independent protectors of human rights in this analysis play no (or little) role in developing or protecting rights on their own initiative. One should generally regard ‘rights’, which are not backed by political decisions with suspicion,Footnote ¹²⁶ as Alf Ross famously said, noting that human rights are like a prostitute ‘available to everyone’.Footnote ¹²⁷ However, if only those rights that the majority decides to protect are regarded as ‘true enforceable rights’, the entire idea that rights are for all – also those minorities whose rights the majority may not always want (or have forgotten) to protect, becomes close to absurd. As Strang puts it quite bluntly:

As also emphasised by 18th-century positivists like Jeremy Bentham and John Austin, ‘real’ positive law is produced by the state with its monopoly of force. In this reading, only the state can be the ultimate anchor and guarantor of rights because only it has the ultimate power to enforce them.Footnote ¹²⁹ Value statements and abstract unenforceable minority rights (like those drawn from human rights catalogues) are thereby merely, according to Ross and other Scandinavian legal realists, moral statements that cannot be either true or false. Rights are thereby basically political statements of emotion which should be left to politicians to decide on. This made law professor Sten Schaumburg-Müller conclude that:

Scandinavian legal realism in this way becomes intimately tied to procedural democratic theory (as majority voting).Footnote ¹³¹ In sum, what the legal scholar should merely ‘observe’ in this legal realist theory is more or less limited to the formally correct adoption of the law by the Parliament, the procedural validity of the law’s execution and the courts’ strict application of the law. This reduces democracy to a ‘procedure’ about voting and forming of majorities; a vision which also came to dominate the literature of the political science discipline in Scandinavia from the 1950s onwards.Footnote ¹³² This also meant that one as a scholar or observer should abstain from any (moral or normative) value judgments on part of the substance of democracy or the desired outcome of the political decision-making process. Instead, political scientists should exclusively be occupied with the behaviour of voters and on whether the procedures of decision making had been followed correctly. Such a minimalist, almost technical approach to democracy makes law ‘the outcome of political action, not the other way around’.Footnote ¹³³ When lawyers and judges should stick to being value-neutral ‘technicians’ on part of a formalist political decision-making procedure, it is hardly surprising that the Nordic countries implicitly embraced ‘Political Constitutionalism’ and even anti-constitutionalim decades before these terms truly entered legal and political theory as concepts.Footnote ¹³⁴ It also explains why the Nordics have had such a hard time relating to the normative underpinnings of post-World War constitutional order where courts were meant to be more than the mouthpiece of the political branch. However, when there is no ‘good’ or ‘bad’ democracy or political regime, but only one that produces decisions correctly or incorrectly, this also implies – in principle at least – that ‘anything goes’. Or, to put it differently, if the majority of citizens want – and vote for the extreme right or an extreme populist party, which seeks to eliminate minority or human rights – this should, from a political constitutional perspective, be respected as long as all procedures are heeded. This position may explain why many in the Nordics have such a hard time understanding the discussion of excluding or even banning of extreme right parties in other European countries and the ‘cordon sanitaire’ – an institution – also present in the European Parliament. The argument you hear again and again in the public debate in the Nordics is that ‘the voter is always right’ and ‘if a politician is chosen by the people in a democratic election, it would be an offence to democracy itself not to respect any person or political party as fully legitimate’. Such a view may, however, as Strang correctly asserts, be considered ‘strikingly naïve against the background of the European experience with Nazism….’Footnote ¹³⁵ At least from a legal constitutionalist perspective. It illustrates not only the deep divisions of constitutionalism in Europe but also suggests why there has been no united front against elected illiberal leaders in the Union.

Interestingly, the Nordic anti-constitutionalist position, where courts play no significant and independent balancing role and where democracy is primarily a formal procedure, has gone completely under the radar in the international constitutionalist debate the past 70 years. Paradoxically, also in the Nordic countries themselves. Even though most Nordic legal scholars today would claim that they have left Alf RossFootnote ¹³⁶ and the Scandinavian realist position, the legal realists view of courts as neutral transmission belts and democracy as mainly about procedure and parliamentary majorities, is as strong as ever. It has even moved from being ‘just’ a legal theory to a national dogma. So has the ideal or desirability of a non-normative approach to law. The Scandinavian realist position (at least in its above-described version) – has today morphed into an atheoretical technical blackletter law approach presented in many Nordic law schools as a ‘neutral’, non-normative and pragmatic approach while in many ways being strongly ideological. Or as Schaumburg-Müller puts it: ‘Despite its claim of scientific neutrality, Scandinavian realism is highly normative’.Footnote ¹³⁷ To put it more precisely, political constitutionalism or anti-constitutionalism certainly is no neutral position but signals a very clear normative view on the role of courts and parliaments in society, respectively and thus of democracy as such. It may, however, well be that its posing as a purely ‘technical’ exercise, explains why no Nordic scholars so far have provided a theoretical defence of the positions more recent versions. Nor have its representatives (to my knowledge) engaged at the international level with scholars like Tushnet/Waldron/Bellamy/Loughlin, who might otherwise have vindicated many aspects of the Nordic position.Footnote ¹³⁸

Common traits and differences among Nordic constitutionalist positions

In the comparative law literature, it is often argued that one can (and should) distinguish a Western version (Norway, Denmark and Iceland) of legal culture from an Eastern one (Sweden and Finland). One reason for this is that Sweden and Finland have administrative courts, while in particular Norway and Denmark have a one-stringed court system dealing with all cases combined and a cluster of smaller administrative appeal bodies composed by a mix of judges, NGO expertise and ministerial civil servants.Footnote ¹³⁹ However, from the European and global constitutional perspective adopted here, there are far more similarities than differences between the Danish, Swedish, Norwegian and Finnish legal traditions.Footnote ¹⁴⁰ Especially when it comes to their democratic majoritarian culture and scepticism of judicial review. None of the countries have a constitutional court and the centrality of the legislature is emphasised in all countries by the strong focus on preparatory works, though to a lesser degree in Norway where courts have a stronger position and precedents play a larger role. The role of preparatory works is, however, significant in all the Nordic countries. The detailed background information on how the laws should be interpreted by judicial bodies are written on behalf of the government and its parliamentary majority by clerks in the ministries. Because they, as mentioned earlier, also function as instructions to the courts, it stresses that there is little wiggle room for dynamic interpretation by judges. However, the fact that this largely turns courts into mouthpieces of the political branch is not considered to be a problem but rather a badge of honour even among the judges themselves underscoring the vision of courts as neutral transmission belts and the elected parliaments as elevated democratic institutions.Footnote ¹⁴¹ As Jaakko Husa puts it, in the Nordic countries: ‘…even the Supreme Courts willingly stay in the background and, thus, practice judicial self-restraint’.Footnote ¹⁴² Despite the above-described similarities and general trends among the Nordic democracies, there are of course differences, where in particular Norway stand out. The Norwegian constitution is one of the oldest in the world, second only to the constitution of the United States. In 1822, the Norwegian Supreme Court even became the second national court in the world to constitutionally review legislation, even though the country was not fully independent from Sweden until 1905.Footnote ¹⁴³ The Norwegian Supreme Court has generally been more willing to challenge the legislature and exercise judicial reviewFootnote ¹⁴⁴ than any other Nordic Supreme Court.Footnote ¹⁴⁵ The willingness to try legislation was, however, more intense after the country’s independence (until the 1930s) and again from the mid-1970s,Footnote ¹⁴⁶ which came to symbolise a new turn towards a slightly more assertive court. A lot has to do with Norway breaking free from Sweden (and before that Denmark), acquiring its own constitutional thinking (inspired by Austria and the United States).Footnote ¹⁴⁷ However, and despite of this, the Nordic consensus culture is still tremendously strong in Norway and outright conflicts between courts and the more ‘legitimate’ legislature are also mostly avoided.Footnote ¹⁴⁸ As Eivind Smith puts it: ‘Even in Norway, the idea about majority rule by Parliament as more “democratic” than judicial review has prevailed during important periods of modern history’.Footnote ¹⁴⁹

In Finland and SwedenFootnote ¹⁵⁰ constitutional judicial review of legislation was understood to be directly forbidden in the national constitutions until the beginning of the 2000s and ex-post judicial review is still rarely practised, though joining the EU and before that, the European Human Rights Convention has challenged the countries fierce anti-constitutionalist position.Footnote ¹⁵¹ In Denmark, the possibility of exercising judicial review is not even mentioned in the constitution and has only been practised once in those 176 yearsFootnote ¹⁵² since Denmark got its first constitution in 1849.Footnote ¹⁵³ The ‘Constitutional Mentality’ of the Nordic countries is thus above anything else self-restraint on behalf of the courts together with deference to the political branch. Even though the Norwegian Supreme Court has been both more dynamic and assertive than the other three,Footnote ¹⁵⁴ worries of a so-called ‘juridification of politics’ is also very prominent in the public debate in Norway. In Norway’s latest big ‘Power and democracy study’ from 2003 conducted by a large group of scholars on behalf of the Norwegian Parliament, outlining the strengths and weaknesses of the country’s political system, the general overall conclusion was interestingly that the biggest threat or challenge to democracy come from the increased power of courts and judges, not least international ones.Footnote ¹⁵⁵

According to Husa, the Nordic states cannot be said to have a true separation of powers, as none of the ‘Supreme Courts…possesses the competence to formally nullify the Acts of Parliament’.Footnote ¹⁵⁶ The fact that Denmark, Sweden, and Finland have no tradition for practising (constitutional) judicial review and have supreme courts that are instructed only to ‘intervene if legislation is in obvious violation of the constitution’Footnote ¹⁵⁷ does not imply however that laws are not scrutinised. The scrutiny is nevertheless mainly conducted by the government – and thus the political branch – itself. Some argue that the judicial branch’s closeness to the government is slightly less pronounced in Finland and Sweden due to their administrative courts and some degree of ex-ante screening of legislation by special bodies, but it is still far from the praxis and balancing function seen in other parts of the Western world. As the Nordic countries do not ‘strictly follow the principle of separation of powers’,Footnote ¹⁵⁸ courts do not have the same balancing role vis-à-vis the legislature and executive branches of government as seen in constitutional democracies. Or as Nuy puts it, referring to Sweden, ‘…the judiciary has traditionally not been considered as a real third power, because of centralisation of the power of the State around the Monarch, the government and the ministries’.Footnote ¹⁵⁹ Sweden established in 2003Footnote ¹⁶⁰ an updated advisory ‘lagråd’ (Law Council), which checks the legality of new legislation.Footnote ¹⁶¹ However, as it only has an advisory function and primarily focuses on a law’s technical aspects, it has, rather than enhancing the quality of the laws overall, disincentivised the Swedish courts from even attempting to exercise ex-post judicial review. As Thomas Bull, a judge of the Supreme Court of Administrative Law puts it: ‘A law that has passed the Law Council without any criticism on constitutional or human rights grounds, will rarely (if ever) be found unconstitutional in the case of judicial review’.Footnote ¹⁶² Even though Sweden conducted a judicial overhaul, as it amended its constitution to make it easier to overrule legislation in 2010, it has not ‘produced any kind of explosion in the number of Supreme Court cases on legislation being unconstitutional’.Footnote ¹⁶³

In Sweden, 1917 marks the final break with absolutism as the process of democratisation started. It was, however, not until 1974 that Sweden acquired its first written constitution, where ‘the majoritarian model of democracy was codified’.Footnote ¹⁶⁴ The ‘new’ constitution established very few constitutional constraints on the majority and could be amended by a majority in parliament. Like in Denmark, Swedish democratisation in the beginning of the 20th century coincided with a strong legal scholarly interest in cognitivist ideas, cleaning legal science from moral principles and natural law as emphasised by the Vienna Circle and analytical philosophy.Footnote ¹⁶⁵ This meant that scientific value relativism became central, emphasising that law and legal statements should be based mainly on positive law and empirical observation.Footnote ¹⁶⁶ Like we saw above with the Danish legal scholar and democracy theorist, Alf Ross, value statements can never in this reading be scientifically validated – that is, considered ‘right or wrong’ which in many ways turned legal science into an exercise of distant observation rather than moral engagement. It is true that some Nordic law schools have ‘outliers’, that is, scholars who typically hold human rights chairs or the like but Denmark, for instance, never had a specific named human rights chair in any of its law departments.

The Scandinavian legal realist ideas and thinking has had an enormous influence on legal science in the 20th century. Not least because it also automatically had direct consequences for how to perceive the democratic system. If legal science (law or courts) cannot ‘judge’ ‘right from wrong’ – issues can only be determined politically. Democracy as a normative value is determined not by constitutional norms but by the mandates and views made up of the political majority at any given time. For those who see democracy as the rule by the majority, minorities can obviously be outvoted in such a system. Others would point to the potentially huge consequences for minority groups if the majority legislates in their disfavour and the courts on top of this are expected not to use their judicial review rights to intervene to protect them. The Nordic anti-constitutional approach clearly stands in great contrast to the natural law thinking emerging after the Second World War.Footnote ¹⁶⁷ One can argue, as Mats Lündström does, that this made law in the Scandinavian world little more than a ‘command’ of the powerful which can result in an almost Carl Schmittian ‘amoral view of politics’. It actually did lead some of the Scandinavian legal realists directly into the arms of nazi ideology in the 1940s, that is, Carl Oliverona, law professor at Lund’s University ‘who in the 1940 advocated German leadership of “the new Europe”’.Footnote ¹⁶⁸ It is important to emphasise, however, that most Scandinavian legal realists were in fact social democrats who saw law as ‘in service of the welfare state’.Footnote ¹⁶⁹ The welfare state was clearly a normative goal but presented as a purely technical project benefiting the majority of citizens in the Nordics. As Lundström puts it: ‘Democracy was regarded as having been reduced to administering a welfare state’ and in ‘…such a political climate, there is no need for constitutional restraints on majoritarian democracy’.Footnote ¹⁷⁰ In Sweden it was apart from Axel Hägerström, Wilhelm Lundstedt and Herbert Tingsten who dominated the debate in the first half of the 20th century, just to mention a few who, like Alf Ross, were all influenced by the Austrian legal scholar Hans Kelsen and his ‘Von Wesen und Wert der Demokratie’.Footnote ¹⁷¹ Add to these legal and political science scholars Gunnar Myrdal (1898–1987) who was a staunch value relativist known far beyond Sweden influencing in particular the development of the rather new political science discipline in all the Nordic countries from the 1950s onwards. The role of value-relativism for the development of Nordic legal thinking and thus anti-constitutionalism can hardly be overestimated and was ‘…intimately related to the majoritarian model of democracy that gradually developed in Sweden and was codified in the constitution in 1974’.Footnote ¹⁷² Like Alf Ross, Herbert Tingsten regarded democracy as a technical ‘supra ideology’ with no substantive core but laying down strict procedures of majoritarian decision making. The majority could in other words, take society in many different directions depending on how citizen had voted and as emphasised by Tingsten and Ross in his ‘Why Democracy’ from 1946, it is necessary for a ‘true democrat’ to accept the outcome of the democratic process ‘even if it goes against one’s own ideological convictions’.Footnote ¹⁷³ While this all sounds very pragmatic and sensible, it nevertheless also underlines that such a value-relativist non-substantive democratic theory ultimately accepts anti-democratic sentiments if these are the ones people have voted for. This also implies, however, that political constitutionalism anti- or ‘thin constitutionalism’ as the Swedish political scientist Sverker GustavssonFootnote ¹⁷⁴ calls it, constitutes a very weak bulwark against anti-democratic forces.

There is, however, little doubt that the membership of the European Union and the European Human Rights Convention has challenged the rather rigid anti-constitutionalist stance in the Nordics. It is nevertheless also important to stress that both the Danish and the Swedish Supreme Court still consider national law to take precedence over EU law, a position which makes it if not reconcilable with, then at least theoretically possible hold on to the Nordic anti-constitutionalist position while being part of the European semi-constitutionalist structures. Interestingly, however, there is still close to no (theoretical) debate in Nordic scholarship on the obvious tension between political and legal constitutionalism – or between majoritarian and constitutional democracy.Footnote ¹⁷⁵ So, while the Nordics over the past decades have cultivated their image as staunch human rights defenders, they have simultaneously been genuinely reluctant to embrace the powerful idea of intense judicial review by courts, on which the entire European liberal post-war order rests. As we will discuss below when turning to the European Union however, the Nordic position may be challenged in the future should the European Court of Justice continue to flesh out the Unions democratic basis in its future case law.

Finland has in recent years attempted to distance itself from a fierce anti-constitutionalist stance for instance by having a stronger ex-ante check on legislation than Sweden through the role of the Constitutional Law Committee.Footnote ¹⁷⁶ The Law Committee consists of legislators but is advised by external legal experts and is often referred to when explaining the absence of intense ex-post judicial review by courts which otherwise was made possible in 2000 with a constitutional amendment. While the Law Committee has improved the quality of legislation and secured that the law – at least ideally – is in line with the constitution (as well as international conventions and EU law), it remains a puzzle how the Finnish parliament (still) perceives itself competent to instruct the Finnish courts in a rather direct manner, saying that ‘…when handling pieces of legislation that have already been dealt with by the Constitutional law committee, [the courts] shall take due notice of its opinion and shall normally presume that provisions having passed the ex-ante test are within the limit of the constitution’.Footnote ¹⁷⁷ In other words, Courts should only overrule in cases, in which the legislation is ‘in evident conflict with the Constitution’,Footnote ¹⁷⁸ meaning ‘stay away’ if you are not 110% sure that such a conflict exists. This is very much in line with the recent work of Maija Dahlberg and Katalin Kelemen,Footnote ¹⁷⁹ in a huge quantitative study analysing legal reasoning in the Nordic Supreme Courts. Here, they show that the Finnish courts (like Nordic courts in general) use legislative intent as an independent argument in their decisions, a fact you rarely find outside the Nordics. As Dahlberg and Kelemen argue, this demonstrates that Finnish courts often lack confidence in their own authority, placing greater trust in the Constitutional Law Committee and generally exercise significant self-restraint in constitutional adjudication. In 2024,Footnote ¹⁸⁰ a working group consisting of judicial experts has been looking into how to better secure judicial independence in Finland. Judges can for instance, today be removed or fired by an act of parliament leading to severe criticism in the Finnish legal establishment. So far, however, the reform work has been interrupted. In April 2024 the Minister of Justice from the far right, ‘True Finns Party’ Leena Meri, decided that the experts looking into this should no longer prepare their proposal to strengthen judicial independence in the form of a legislative reform bill, but merely write a memorandum.Footnote ¹⁸¹ The Association of Finnish Lawyers as well as the Finnish Association of Judges, has concurrently demanded an impartial investigation into where the boundaries of political influence lie. Those hoping for a formal constitutional change to secure judicial independence, including the Finnish Bar Association and the National Court Administration, argue that reform is essential as a undemocratically functioning government coming into power, might undermine the independence of the courts even further. Interestingly, the European Commission’s Rule of Law report stresses that ‘the level of perceived judicial independence in Finland continues to be high’.Footnote ¹⁸²

Looking back in history, Finland’s (geo)political situation is slightly different from the other Nordic countries due to its proximity to Russia but also by being a Republic and having a President (like Iceland) beside the parliament. Apart from this, however, the classical Nordic anti-constitutionalist stance has been striking. Until the 1980s, courts and judicial review played close to no role in Finnish politics. The Finnish constitution from 1919 (section 92/2) was, as mentioned earlier, interpreted as prohibiting judicial review of the constitutionality of Acts of Parliament,Footnote ¹⁸³ and this remained so until the new Finnish constitution in 2000. The emphasis of the primacy of parliament has been evident not only by the prohibition of judicial review but also by the status and role of travaux preparatoires which has been considered higher in the legal hierarchy than legal precedence and case law ‘which was regarded as having no more than persuasive value in the process of identifying the law’.Footnote ¹⁸⁴ This also meant that individual constitutional rights, as Ojanen points out, had almost no standing in Finnish constitutional law and ‘constitutional rights were understood to be binding primarily on the legislature’.Footnote ¹⁸⁵ As in the other Nordic countries, the individual has rarely been seen as requiring protection against the state, as the state was seen as an extension of the individual. A view that did not change after the Second World War, unlike in much of the rest of the Western world and certainly in Germany. The Finnish courts thus stayed in the background, following the parliament’s legislative provisions meretriciously, or as Ojanen puts it: ‘One looks in vain after court judgements involving broad statements of principle and substantive legal reasoning’.Footnote ¹⁸⁶ Since the membership of the EU in 1995 and the implementation of the European Convention of Human Rights in the late 1990s, a new constitution in 2000 for the first time allowed ex-post review by the courts. However, while legislation now can be reviewed as compatible not only with the constitution but also with international obligations, provisions still need – as mentioned above – to be ‘in evident conflict with the Constitution’ to be set aside by a court in Finland.

In Denmark, the role of the courts is even more restricted than in Finland and Sweden. This is probably due to a combination of institutional inertia and the closeness of the judiciary to the Monarch during absolutism, which was later – after democracy was introduced – transferred to the state apparatus a such. In modern times, it is, thus no longer closeness to the Monarch but instead closeness to the executive and the governmental majority that sticks out. As mentioned in the introduction, Denmark is allegedly the only democracy in the world that has all branches of government located physically under the same roof, a phenomenon that has never been the object of any public debate or discussed as problematic in any national law or history textbook. Law professor and historian Ditlev Tamm has emphasised, the striking closeness between absolutism and the judiciary in this manner: ‘As an institution, the Supreme Court of Denmark is closely linked to the introduction of absolutism in Denmark, and its origin as an offshoot of the King’s power – and not as an independent judiciary – is of great importance for the understanding of the court’s history.’Footnote ¹⁸⁷ Interestingly, the Supreme Court itself also does not count its birth as an institution to the establishment of democracy with the Constitution of 1849 but instead to 1661, when the King proclaimed himself to be head of the monolithic Danish state. The gradual disengagement of the judiciary from the executive branch has thus been a prolonged process, with judges mainly recruited from the Ministry of Justice.Footnote ¹⁸⁸ Again, the most striking has probably been the reluctance to even see this as a serious problem.Footnote ¹⁸⁹

When absolutism fell in 1848, the Constitution of 1849 stated that the legislative power was with the King and the Folketing [Parliament] jointly. The executive power was with the King and the judicial power with the courts – aiming at a form of power distribution. To this day, the wording of the constitution remains the same however, with only a few rather minor amendments. In the Danish case, there was never any mention of either Montesquieu, the balance of powers or the need for any kind of judicial review.Footnote ¹⁹⁰ As the current President of the Danish Supreme Court, Jens Peter Christensen, puts it: ‘Contrary to what many might think today, §3 of the constitution [which is the only paragraph speaking of power division] did not, however, aim to establish a right for the courts to test whether the legislation stays within the framework of the constitution’.Footnote ¹⁹¹ Alf Ross equally never perceived Section 3 of the constitution as limiting or constraining the competence of the legislative power. Judicial review was simply always considered too controversial. Consequently (and as mentioned earlier), since 1849, judicial review has only ever been practised once by the Danish Supreme Court in the so-called Tvind case from 1999.Footnote ¹⁹² So, while everyone else in post-Second World War Europe encouraged parliaments to subject themselves to some kind of intense judicial control and scrutiny, this debate never arrived in Denmark. Even the latest 1953 amendment of the Danish Constitution after the war (which mainly took place to secure female inheritance to the throne) there was no mention of judicial review. Nor was there any debate about it during the preparatory discussions, which is even more surprising.Footnote ¹⁹³

Interestingly, in 1920, before the war, the Danish Supreme Court had in fact established a theoretical possibility that it, if need be, saw itself as competent to address constitutional issues. However, it simultaneously defined the conditions for when this could happen in such detail and with such caution that an actual right to judicial review, as late Professor Hjalte Rasmussen put it, was very ‘difficult to spot’.Footnote ¹⁹⁴

In more recent years, however, the Danish Supreme Court, while reconfirming its reticent position when it comes to rarely overruling national political decisions, has – in line with Lüstig and Weilers ‘wave theory’ above – been more willing to test the Danish government’s EU law commitments. It thus on two occasions let individual citizens try the government’s adoption of EU treaties (the Maastricht and Lisbon treaties) even though it is normally required that a citizen to be heard by the courts has a personal stake in the case in question.Footnote ¹⁹⁵ This illustrates that, for cases relating to the international level – in this case, the EU – the Supreme Court is acting in a much less restrained manner and is ultimately willing to challenge Danish EU membership. While both cases were lost by the defendants, as in the German Maastricht case, both Danish cases gave the Supreme Court an opportunity to clarify that if the European Court of Justice were ever to go too far in its interpretation of its competencies, the Danish Supreme Court would not hesitate to reclaim surrendered powers back to Denmark. Thus, the Supreme Court clearly perceives the constitutional competencies of delegation according to the constitution’s section 20, as only delegated and retrievable at any time.Footnote ¹⁹⁶ This also suggests that, according to the Supreme Court, Danish law ultimately has primacy, not EU law. So, while the Danish Supreme Court still preaches ‘restraint’ when it comes to fine-tuned judicial review of national legislation, it is much less reticent when it comes to challenging Denmark’s international obligations. As Christensen put it in the book ‘The Supreme Court’, after the MaastrichtFootnote ¹⁹⁷ and Lisbon casesFootnote ¹⁹⁸ (and one could add the Ajos judgment from 2016),Footnote ¹⁹⁹ there is no doubt that the Supreme Court has felt a need to mark its place in the legal hierarchy. Danish courts cannot be deprived of the right to try whether too much sovereignty is ceded, or whether an EU act (or case law) exceeds the limits of the surrender of sovereignty that has taken place. As the President of the Danish Supreme Court puts it very clearly:

In Denmark, legal scrutiny of legislation mainly takes place in the executive arm of the Ministry of Justice, where the so-called ‘Crown jurists’, together with the Ministry of Foreign Affairs, both advise the government, organize the practical implementation of laws, (including EU law and directives and court decisions) and later take the role as controlling the instruments that they themselves have implemented and advised on.Footnote ²⁰¹ This is also the case for international law, which the two Ministries also direct the implementation of. Moreover, it is the Ministry of Justice and the Ministry of Foreign Affairs that advise on the implementation of EU law, advise on preliminary references through the state attorney and considers whether and how EU law and CJEU case law should be transplanted into national law.Footnote ²⁰² In sum, in Denmark, like in the other Nordic countries, the government (and its parliamentary majority) aided by the executive arm, has an unchallenged position carefully controlling all steps where international commitments are involved.Footnote ²⁰³

***

Had Denmark and later Norway, Sweden and Finland not from the 1970s onwards been good at branding themselves as progressive human rights crusaders, primarily in foreign policy and development aid, more would probably have paid attention to these countries’ principled anti-constitutionalist stance.Footnote ²⁰⁴ The Nordics’ high democracy, happiness and equality scores, combined with their more recent progressive climate agenda, have no doubt also drawn attention away from the region’s deep-seated ‘politics over law’ position. These observations do, however, not automatically box them into the third-wave category, as described above. The Scandinavian version of political constitutionalism does not represent the same kind of ideological illiberal constitutionalismFootnote ²⁰⁵ that we have seen in for instance Hungary and Poland (until the latter’s governmental change in 2023).Footnote ²⁰⁶ Nevertheless, everything is a matter of scale and it cannot be excluded that a Scandinavian or Nordic innate anti-constitutionalist regress in the coming years may start posing challenges at a concrete but also more theoretical level. As the Nordic countries grow more heterogeneous, all citizens may not ‘feel’ their rights equally protected by the will of the majority. Danish citizenship laws are a good example.Footnote ²⁰⁷ The Danish constitution says that only those holding citizenship in Denmark are allowed to vote in national elections, and that it is the majority in parliament which decides about individual applications for naturalisation and citizenship. It is, however, also the majority which decides on the citizenship-acquisition rules, which de facto today excludes around 10% of the adult population from voting in national elections and thus taking an active part in democratic processes.Footnote ²⁰⁸ Even university students, expected to become good active citizens later in life, cannot apply for citizenship as long as they study, as they do not live up to the requirement of financially supporting themselves. When they finish their studies, they need to be employed for 3 years out of the last 4 years before they can apply. Had Denmark not been so strongly majoritarian and interpreted dualism so rigidly, the above requirements could probably have been tried at the (international) courts for discrimination. In a political constitutional democracy like the Danish one, however, it is for the politicians alone to decide who is eligible to be included in society and who is not and courts (national or international) should not be able to overrule such principles by referring to either modernised constitutions or international obligations. Interestingly, while Denmark continues to defend a strict majoritarian position, Norway has in recent years moved closer to the European mainstream when it comes to rights and constitutionalism. For instance, by using the argument of fear of populism and possible future democratic backsliding as a reason to amend the country’s 1814-constitution in May 2024. It was argued that:

The amendments are thus based on the argument that even the smoothest functioning democracy may be susceptible to democratic retrogression and should consider taking precautions for instance by modernising its constitutions. Such reflections are nevertheless, rare and far between in societies where the external self-branding as human rights vanguards often inhibits internal self-criticism. The USA under Trump 2.0 might act as a warning of just how fast liberal democracies can erode. Also, despite the belief when Trump entered office again that the American checks and balances would prevent this from happening.Footnote ²¹⁰

Let us then finally turn to Europe where the CJEU in recent years has played a strong but delicate role as guardian of a common European Rechtstssat. While the European Court will probably not start intervening or ruling for instance in the area of voting rights and citizenship acquisition in the member states, the most recent Malta citizenship case is interesting.Footnote ²¹¹ Whereas the Malta case concerned the prohibition of commercialisation of national citizenship (the sale of passports to non-Europeans who would then also acquire a Union citizenship), the Danish rules for citizenship acquisition laid down in the Danish constitution are unlikely to have an EU-law aspect. At least as things are currently understood. There is little doubt, however, that a firm Scandinavian legal realist position would consider it a limitation to democracy if any court (national or international) were to review this type of laws, even if as Lündström puts it ‘… it could be motivated by the intent to protect democracy’.Footnote ²¹² As the research in this article has shown, the Nordic societies’ strict focus on procedural democracy, trust in the majority, restrained judiciaryFootnote ²¹³ and strong role for organised interests, etc.,Footnote ²¹⁴ clashes more fundamentally with the constitutionalism emerging out of the ashes of the Second World War, than what has previously been realised. The political constitutionalism of the Nordics may thus also be at much greater odds with a more substantive European approach to democracy and the rule of law currently developing in the case law by the European Court of Justice. Though these cases, as we see below, spring from rule of law breaches in clearly backsliding countries, the principles and doctrines developing from them may have repercussions far beyond the specific cases and thus also challenge the rights-sceptic Nordics. Judicial independence and the need for stronger judicial review are clear examples. Though democracy and the rule of law, currently, at a global scale, are severely threatened, teasing out European democracy to solidify and protect constitutionalism in the Union may thus have much broader implications than what has so far been anticipated.