Nordic Legal Culture and Constitutional Tradition

1
Nordic Legal Culture and Constitutional Tradition

• Jaakko Husa
• University of Lapland
• Faculty of Law
• Spring 2009

2
Contents

• 1) Historical and general overview of Nordic law
  shortly (Note Iceland not included)
• 2) Inner divisions and differences within Nordic
  law East vs. West -shortly
• 3) Nordic Constitutions Some Basic Features
• 4) Finnish Constitution
• Development
• Distinctive features
• Some thoughts

3
Overview

• Part of Europe, but peripheral in a sense
• not common law, not really civil law
• Denmark and Norway united 1380-1814
• Norway in union with Sweden 1814-1905
• Sweden and Finland together until 1809
• 1809 Finland part of Russia (Autonomy Swedish
  Constitution)
• Finland became independent 1917

4
Overview

• Legal family?
• Separate sub-group of civil law
• Closer to continental law than common law
• No stare decisis, courts apply law not create,
  written legal system, public/private law division
• But
• Not overtly theoretical, realism/pragmatism
• No large codes in civil law (separate smaller
  acts)
• No sharp distinction between civil law and
  commercial law
• Roman law (ius commune) effects not so visible ?
  no scientification of law takes place in 19th
  century

5
Inner divisions

• Danish and Norwegian law unified in 17th century
  Western group/Copenhagen as centre
• Swedish and Finnish law gain common basis 1734
  Eastern group/Stockholm as centre
• West no separate administrative courts,
  judge-carrier reminds common law judges carrier
• East separate administrative courts, judges are
  public officials
• Others monarchies, Finland Republic (reluctant?)
• Spilling over Nordic edges
• a) Norway most American (Høyesterett, overtly
  practical)?, b) Finland most German ?

6
Nordic Constitutions

• Denmark
• Grundloven 1953 (1849), constitutional monarchy,
  unitary state, parliamentary system, judicial
  review?, EU member 1972
• Norway
• Grunnlov 1814, constitutional monarchy, unitary
  state, parliamentary system, judicial review, not
  an EU member
• Sweden
• Regeringsform 1974 (main), constitutional
  monarchy, unitary state, parliamentary system, de
  jure weak judicial review, EU member -95
• Finland
• Perustuslaki 2000 (1919), republic, unitary state
  (Åland islands?), parliamentary system with
  president, weak judicial review, EU member -95

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Nordic Constitutions Constitutionality Control

• __________________________________________________
  __________
• Problem Norway Sweden Finland Denmark
• __________________________________________________
  __________
• Point of Time R R PR R
• Control organ C CNC NCC C
• Nature of Control K K LA K
• Organization H H S(H) H
• Basis of Control AD N N D
• Outcome F I I I
• __________________________________________________
  ___________
• Symbols REx post facto, PPreventive, CCourt,
  NCNon-Court (other public organ), KConcrete,
  LAbstract, HDe-centralized, SCentralized,
  DDoctrine, NNorm (codified rule), ACourt
  practice, Iinvalidating in a (judicial) case at
  hand and, Fnullification de facto.

8
Nordic Constitutions Common Elements of
Constitutional Culture

• Parliamentary system with mixture of separation
  of powers
• Consensual democracy (avoidance of open conflicts
  in politics, multi-party system).
• Cautious systems of judicial review (judicial
  self-restraint, Norway?)
• Respect for the will of the legislator (avoidance
  of conflicts, great significance of travaux)
• Constitutional conformity interpretation
• No separate Constitutional Courts

9
Nordic Constitutions Common Elements of
Constitutional Culture

• Combination of written and unwritten rules and
  principles (Constitutions not only codified,
  contain also conventional elements)
• Elements of constitutionalism (respect of
  Constitution within parliamentary frames
  effective lex superior, i.e. Constitutions are
  not political manifestos nor collections of dead
  rules)
• Pragmatic and practical legal style
  (argumentation, although, grammatical also
  teleological and intentional, the nature of
  argumentation is not "heavy" as in Germanic law,
  nor so cryptic as in French law, to some extent a
  casuistic nature)
• Flexibility of Constitution (although written
  Basic Laws, alteration takes place in various
  of ways formal amendment, customs, conventions
  and case law)

10
Finnish Constitution - Development

• Swedish period ca. 1200-1809
• 1680-1718 Age of the Sovereign Rule
• 1718-1772 Age of Freedom
• 1772-1809 Gustavian period
• Russian/Autonomy period 1809-1917
• Independency 1917-
• Civil war 1918
• Form of Government 1919
• Eurostate constitutional reform 1992-

11
Distinctive Features Sources

• Authoritative sources
• Constitution Act, Acts of Parliament (laki),
  lower Decrees (asetus) also have generally
  binding legal force (issued by Government,
  President or Ministry)
• Semi-authoritative sources
• Statements of Constitutional Committee of the
  Parliament (Eduskunnan perustuslakivaliokunta),
  preparatory works of legislation (lainsäädännön
  esityöt), key-decisions of Supreme Courts
• Permitted sources
• Praxis by constitutional actors (convention-type
  rules/principles created by Government,
  President, PM, Parliament), general principles of
  constitutional law, legal dogmatics,
  constitutional morality, and comparative
  arguments
• Other sources
• EU law ECJs case law, ECHR ECtHRs case law

12
Distinctive Features Parliamentarism with
President
13
Distinctive Features Flexibly Rigid

• Basic distinction flexible vs. rigid
  constitution
• E.g. UK or New Zealand vs. US or Germany
• De jure Finnish Constitution is rigid (Section 73
  CA)
• De facto Finnish Constitution is flexible
• Changing trough interpretation
• Customs and conventions
• Exceptive Acts
• ? flexibly rigid

14
Distinctive Features Institution of Exceptive
Act (poikkeuslaki)

• Exceptive Act means a partial displacement of the
  content of the written constitutional document,
  without changing the text meanwhile.
• Doctrine was crafted not to undermine the
  Constitution but rather simultaneously to respect
  it and to create needed flexibility
• Doctrine is not close to the infamous doctrine of
  exceptive laws used by the Third Reich ? meaning
  of 19th century
• Year 2000 doctrine was modified limited
  exception (rajattu poikkeus)

15
Some Thoughts

• Constitutional luck is important
• - Gustavus IIIs Form of Government was so
  ruler-friendly that the Russian Tsar could accept
  it in 1809
• - out of the turmoil of 1918 as a republic that
  at least had the formal dimensions of a
  democratic state
• - when the CA of 2000 was drafted and prepared
  that the President was at that time politically
  so weak that the reform was able to take place
  etc.
• de Tocqueville has pointed out
• A lawgiver is like a man steering his route
  over the sea. He, too, can control the ship that
  bears him, but he cannot change is structure,
  create winds, or prevent the ocean stirring
  beneath him

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Some Thoughts

• Collisions
• reformist vs. conservative
• Nordic mentality but resistance of haste changes
  in constitutional field
• formal vs. non-formal
• rigid Constitution Act but other forms to reach
  flexibility
• inward-looking vs. international
• wanting to hold to national sovereignty-principle
  but practically giving in to EU/ECHR