State of the art
Constitutional reasoning has been a flourishing field of research in comparative constitutional law in the past two decades (Kelemen 2019). Goldsworthy (2006) looked at how constitutional reasoning differs across constitutional systems. Groppi and Ponthoreau (2013) examined the use of foreign precedents by constitutional judges. The latter particular question has been object of empirical analysis by several scholars, among which Gelter and Siems (2012). The parent project of this project (the CONREASON Project) developed a comprehensive and systematic analysis of constitutional reasoning (Jakab, Dyevre & Itzcovich 2017). None of the comparative studies extended its geographical reach to Northern Europe, with the exception of the research led by Giuseppe Franco Ferrari on the use of foreign and international materials by constitutional and supreme courts, which however did not carry out an empirical analysis when examining the Nordic courts (Duranti 2019).
There are writings on constitutional reasoning of a particular court in the Nordic countries, many of these in the local language. Filippo Valguarnera (2015) identified the main distinguishing features of judicial policymaking in Sweden from a comparative perspective. Joakim Nergelius (2000 and 2014), a member of the Advisory Board in this project, dealt with the role of courts in Sweden and the phase of transition they are facing. Per Henrik Lindblom (2007) discussed the growing role of the Swedish courts and the new functions of the judicial process.
A comparative perspective on Nordic constitutionalism is offered by several writings of Jaakko Husa, with a focus on human rights discourse (Husa 2010) and on constitutional mentality (Husa 2019), claiming that there is “a certain general Nordic openness of argumentation”. Martin Sunnqvist (2014) evaluated the changing attitude of Nordic judges from a historical perspective, finding that they have increasingly taken a critical attitude to the compatibility of statutes with the respective national constitutions. More recently, Helle Krunke (who is the Danish researcher in this project) and Björg Thorarensen (2018) applied a comparative contextualized functionalism approach to explore similarities and differences in the Nordic constitutional systems, with a special focus on the impact of the European Union / European Economic Area. However, none of these comparative studies offer a systematic account of the argumentative practices of the courts they observe or use empirical methods. A quantitative analysis of the citation practice of the three Scandinavian supreme courts (thus not including Finland and Iceland) was carried out by Marlene Wind (2016), whose research question focused on references to international law and courts in the Scandinavian courts’ judgments.
Morten Nadim – the Norwegian researcher in this project – has, instead, made such an attempt in relation to the Norwegian Supreme Court. His rather extensive study of legal reasoning by the Norwegian Supreme Court (Nadim 2017) examined 447 cases. The study includes an empirical analysis of legal reasoning in all cases heard by the Court in grand chamber or plenary sessions after 1970. The analysis is three-fold: the use of formal legal sources, the generality of the language, and the courts balancing of individual rights against “greater good” considerations. Nadim found that the variety of formal legal sources expands over time, that the decisions display more and more general language, and that individual rights are gaining traction. We expect similar findings in relation to specifically constitutional cases. The Norwegian Supreme Court has also been object of empirical research by one of the members of the Advisory Board of this project, Jørn Øyrehagen Sunde (2015). Eric Waltenburg, Gunnar Grendstad and William R. Schaffer authored a case study (2015) on the decisional behaviour of Norwegian Supreme Court judges.
Concluding, a survey of the field reveals that there has not yet been a systematic and empirical analysis of the reasoning practice of Nordic supreme courts in constitutional cases from a comparative perspective.