James Madison was one of the United States’ *founding fathers*, central to the drafting of the American Constitution and later the country’s fourth president. He warned early on of the challenge that today appears as an enormous structural deficiency in Norwegian democracy.
Previously, Oagal has described the development of the asymmetrical The Norwegian Fund-Backed Political Dominance Model, which clearly shows how the political industry over time has built up a structural and unstoppable dominance. Such dominance increasingly evokes historical associations with monarchy, ruling classes, and systemic concentration of power.
In the media, we simultaneously see how one top politician after another – and their networks – have been able to operate using state resources with strikingly few external constraints. What we are seeing is not several individuals coincidentally acting this way on their own, but behavior that is recognized and protected by an entire culture – a political industry that keeps the people at a distance.
Historically, such patterns have been corrected through demonstrations, uprisings, and revolutions. But in civilized societies, oppression and physical violence are prevented in advance through institutional balancing of power. So where has the third branch of government gone? Must people take to the barricades?
## Norwegians without protection from the judicial branch
It is always easier to see who and what is going wrong than to see what is missing. Oagal nevertheless observes the absence of something fundamental: the inhabitants of Norway are, in practice, without effective protection from the judicial branch against violations of the Constitution – and thus against violations of themselves.
The weak role Norwegian courts have come to play was not a deliberate constitutional choice. It is the result of political dominance and judicial self-restraint. The consequence is serious: in practice, the Constitution lacks an institutional guardian.
> The constitutional role of the courts is given to them by the Constitution itself. It cannot be voted away by Parliament, nor suppressed by the public administration – just as the courts cannot take over Parliament’s legislative role. This is not a question of power struggle in a political sense, but of balance of power.
This is pointed out regularly, but almost always in cautious and polite terms. Law and justice are a demanding field, and many are hesitant to criticize the courts. While there are complaint mechanisms and opportunities to sue against decisions in public administration, court judgments are in practice final. The result is paradoxical: when the system fails, citizens and organizations are increasingly forced to seek protection outside the country.
### The courts must themselves assume their position
Balance of power requires that all branches of government actually assume their positions. That lies in the nature of the matter – you are not handed power by those you are meant to balance against. It is futile to wait for someone else to fix things – a parliamentary resolution or a greeting from the Minister of Justice – or to raise one’s eyebrows in resignation in the court corridors, only to return to everyday work. In Norway, only the courts are assigned the task of standing in tension with political power. Not the media. Not the public administration. Not international courts as a last emergency exit. When the courts withdraw, power does not disappear – it accumulates.
This is not a new point. Already in the 19th century, the country’s highest court was explicitly described as the final instance in constitutional matters. In 1929, the Labour Party argued broadly and publicly for the establishment of an independent constitutional court. The argument was clear: without a court able to stand up to political power, the separation of powers becomes illusory – widely covered in, among others, *Vestfold Fremtid*, *Kongsvinger Arbeiderblad*, *Fremtiden*, *Arbeideravisa*, *Namdal Arbeiderblad*, and *Fremover*.
That these proposals were never realized does not mean that the need disappeared. It means that the responsibility has always remained – with the courts themselves.
This self-imposed invisibility has also produced other serious consequences, such as when law enacted by the legislative assembly is turned on its head in judicial practice, as seen in cases related to the Court Fees Act and bankruptcy cases involving compulsory execution without a statutory audit basis. Norwegian judicial practice is difficult for the public to access and contributes to legal confusion when practice deviates from the law.
### A hazardous absence of a constitutional court
In more recent times, the criticism has become sharper. The absence of a constitutional court has been described as hazardous. When such words are used, it is because the risk is no longer theoretical but real: when no institution systematically safeguards the Constitution, its interpretation is in practice left to political majorities. That it was previously, for example, the Labour Party that advocated a strengthened constitutional court role but no longer does so today is a double standard rich in tempting points. However, the responsibility for acting as a constitutional court is not political, but rather a task given to the courts by the Constituent Assembly at Eidsvoll as far back as 1814.
> There is also no constitutional court in Norway. This means there are no quality assurance mechanisms for what is written into our Constitution. This is extremely hazardous.
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Jarl Hellesvik (Nordnorsk debatt, April 17, 2023)
We have balances of power in many areas of society. Many experience them in intimate relationships. Some manage to maintain balance; others submit to their partner and allow balance to disappear through coercion or the choice of comfort. But the courts are not given their role to be comfortable, but to be independent – even when it comes at a cost.
Failing to intervene when the Constitution is placed under pressure is not neutrality. It is a choice – a choice that has in practice given Norway a two-tier power system that largely acts as one and leaves the population entirely at its mercy.
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