Purpose and Research Questions
Is there a distinctively Nordic style of constitutional reasoning? The project aims at systematically documenting the argumentative practice of the supreme courts of Sweden, Denmark, Iceland, Finland and Norway in constitutional cases in order to discover common traits and trends. We will identify patterns with empirical research methods, an emerging but not yet common way of doing research in the field of law.
The rise of judicial power has been a global trend in the last three decades. Supreme and constitutional courts play an increasingly larger role in defining the direction, shape and content of public policies in many countries (Hirschl 2008). The Swedish Högsta domstolen and other Nordic supreme courts have not been an exception (Lindblom 2007). They have often taken a firmer stand on constitutional issues (Sunnqvist 2014), determining the fundamental questions of politics. In some cases, their decisions even provoked accusations of excessive judicial activism (Wersäll 2014). The impact of a constitutional ruling often goes well beyond the cases actually adjudicated by the courts, and it seems that the Nordic systems are slowly gliding towards rule by judges instead of rule by parliamentarians (Husa 2019). For that reason, it is of increasing importance to understand how Nordic judges justify their decisions in constitutional cases.
The Nordic experience will be analysed and evaluated in a comparative context. The primary purpose of the project is to give a faithful account of the reasons judges in Nordic countries publicly adduce for their decisions in constitutional matters, involving questions related to fundamental rights and the exercise of public powers. As non-majoritarian institutions, judges achieve social and political acceptance by demonstrating that their decisions are based on sound justifications. This project aims to explore (1) what these justifications are and (2) how they vary across the Nordic countries. Thus, we aspire to discover common elements of change and common elements of continuity. This will allow us to make a comparison with other supreme and constitutional courts in the world, in relation to which these studies have already been conducted.
There are many commonalities between the legal and constitutional systems of Nordic countries. Among these common features we may find the traditional reluctance towards the power of judicial review of legislation (Follesdal and Wind 2009). The heavy reliance on preparatory works of legislation, a weaker rights discourse compared with other European legal traditions (Nergelius 1996, Husa 2019), and the lack of judicialization of core political dilemmas, such as electoral outcomes or regime transformation (Hirschl 2011) are further special characteristics of Nordic judicial reasoning. But can we talk about Nordic exceptionalism? More recent research has challenged the assumption that the Nordic countries would form a homogeneous constitutional system (Krunke and Thorarensen 2018). The current crisis generated by the Covid-19 pandemic shows clearly that the Nordic countries do not give identical responses to shared problems. In particular, Sweden stands out in its political and constitutional approach to the pandemic (Cameron & Jonsson-Cornell 2020). If the Nordic countries are different from each other to a certain extent when it comes to these issues, in which way do they differ from one another?