Oagal sees it as necessary to search for new forms and structures where established ones no longer function satisfactorily. The point of departure is to strengthen the rule of law and judicial independence, because democratic control over public power has in practice become too weak, fragmented, and neglected.

This applies not least after laws have been adopted, when judicial practice takes over. The court-fee practice shows how badly things can go when popular sovereignty does not follow legislation into the judicial system.

When laws are adopted by Parliament following extensive democratic processes—with preparatory works, hearings, and stated political intentions—it is a fundamental democratic requirement that these laws are also actively carried into judicial practice. Today, this happens to too limited an extent. The result is that judicial practice over time may develop in directions that do not correspond with the legislature’s intentions, yet still become norm-setting because they remain uncontested.

This in effect entails a form of non-parliamentary norm development. The actual content of legislation is then shaped not only by elected representatives, but also by judicial practice that is not subject to systematic democratic follow-up. Oagal experiences this as a weakly illuminated problem in Norwegian public debate. When judicial practice develops contrary to legislative intent, it reflects a judiciary insufficiently anchored in its democratic foundation, exercising authority that in practice has political consequences.

Oagal maintains that popular sovereignty must follow laws into judicial practice to ensure alignment with the parliamentary basis and adopted decisions. If the judiciary does not acknowledge the design of the law, this must be addressed openly and honestly through its constitutional role—not through a gradual distortion in judicial practice.

Oversight bodies, courts, and popular sovereignty

Oagal considers it legitimate to assess whether parts of the state’s oversight and supervisory functions should be organized more closely in relation to the judiciary. Ombuds and supervisory authorities today exercise significant norm-setting power over both administration and citizens, yet are fragmented, differently organized, and to varying degrees democratically anchored.

A common administrative organization of supervisory bodies and ombuds could allow for substantial efficiency gains, improved competence sharing, and more targeted use of resources. Within such a structure, different subject areas could still be led independently, with specialized legal and professional expertise. Oagal experiences that today’s organization has contributed to the sharp expansion of the public sector, with increasing risk of a future backlash against the welfare state—as also warned by Trygve Tamburstuen.

In several cases, the exercise of ombuds roles has been marked by strong individual programmatic agendas. When ombuds are largely recruited from former politicians, this may weaken the perception of neutrality and fairness. Examples where particular interests or specific interpretations of equality are given priority contribute to undermining trust in the arrangement.

I therefore believe it should be considered whether parts of the ombuds and supervisory functions could be placed closer to the courts, while at the same time establishing a clearer, people-controlled oversight mechanism. Norway already has models for popular participation in the judicial system, including the election of lay judges and conciliation boards. These experiences should be incorporated into further deliberative processes that strengthen democratically independent intervention by the people.

Guarding against harmful concentration of power within a narrow judicial sphere

At the same time, such development must be designed so that it does not lead to harmful concentration of power within a small judicial sphere. Oagal therefore believes that any strengthening of the judiciary’s control role must be balanced by clear democratic accountability and ongoing political follow-up.

This also includes a need to strengthen systems for carrying laws into the judicial system, monitoring judicial practice, and reporting back more rapidly to the legislative and executive branches when practice deviates from the preparatory works and intentions of the law.

Experiences of misalignment between legislation and judicial practice go far beyond the Court Fees Act, under which people may in practice be forced from their homes and land. Similarly, Oagal and medvirkning.no have over time documented how the preparatory works for the 2008 Planning and Building Act had a clear intention to strengthen citizen participation. Nevertheless, neither county governors nor the Parliamentary Ombudsman consistently intervene when the law’s intentions are violated in practice.

The result is that the legal understanding of the general public is set aside, while judicial and administrative practice are allowed to develop relatively freely.

Putting the people to work in deliberative processes

I experience this as extremely serious. One may like to believe that people do not see what is happening—but they do. Trust in democracy is weakened, while contempt for careless or nonchalant holders of power grows.

This is not pretty. It is democracy that is faltering. Oagal believes the answer to this development is not less democracy, but more: stronger people-driven oversight, more open deliberative processes, and a clearer linkage between legislation, judicial practice, and democratic accountability.

I present these reflections as ideas, not finished answers. When old structures no longer function as intended, it is the responsibility of popular sovereignty to search for new ones—before the distance between power and people becomes too great. Oagal does not believe there is a need for new NOU reports whose conclusions are predetermined the moment a government appoints a committee made up of old party associates, public administrators, and lawyers. The entire population must be put to work through well-structured, deliberative processes where knowledge and viewpoints can shape a more just and well-functioning rule of law.

Christian Sømme

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Christian Sømme er Oagals redaktør og demokratiaktivist. Overalt i Norge og internasjonalt møter han mennesker som ikke kan assosiere seg med og føler maktesløshet overfor beslutningene til politikere, offentlig administrasjon og domstoler. Han har etablert Oagal som en uavhengig mediekanal for å dekke disse problemstillingene, oppsummert som «reelt demokrati». Sømme har vært tillitsmann, by- og stedsutviklingsaktivist i en mannsalder, og demokratiaktivist som Medvirkningsombudet (selvutnevnt) fra 2018 og med Oagal fra 2024. (Foto: Thomas Eckhoff)

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