Strong constitutional courts are courts that in practice: annul laws, halt government measures, intervene without political invitation, and are actively used by citizens, the opposition, and civil society. Many countries also have formal constitutional courts that are in reality weakened: political control over court organization, renewal, and (under)funding as in Norway, judicial appointments that are abused, ignored, or overridden.

Constitutional courts are fundamental to good democracy

A strong and independent constitutional court is a central element of a democracy. The absence of a strong constitutional court cannot be compensated for by good balance within the branches of power, and becomes even more serious in countries such as Norway where there is in practice no direct democracy at the national level and no direct personal elections to the national legislature.

Balance within the pillars of power includes the following elements:

• In the legislative power: balance between representative democracy and direct democracy.
• In the executive power: real oversight bodies and a civil service that is professionalized and detached from the political industry – not dominated by former politicians.
• In the judicial power: open, professional, and institutionally strong courts, with the ability and willingness to intervene also constitutionally (constitutional court). Here, the Nordic countries are in the dark.

Switzerland illustrates the point that a weak overall balance of power can be partially compensated by strong direct democracy in the legislative branch. Nevertheless, this cannot replace weaknesses in the overall balance of power.

Characteristics of genuinely functioning constitutional courts

Strong constitutional courts are characterized by the fact that they:

• annul laws adopted by parliament
• halt governments and administrative interventions
• can intervene without political invitation
• are actively used by citizens, opposition, and civil society
• resist both national power concentration and supranational regulatory pressure
• develop and adapt to reality in the same way as the other branches of government
• oversee court practice to ensure that case law follows legislative decisions

Development and adaptation to reality can, among other things, ensure public understanding of the importance of funding and that independence can be maintained and strengthened. Constitutional courts may lose ground if they are not visible in a modern reality, including social media and other arenas where they meet the public, who are their principal.

EIU Democracy Index does not emphasize constitutional courts

As with everything else, there are differing views on the importance of constitutional courts in a democracy. Oagal takes the position that constitutional courts are of such importance that their absence weakens the judicial branch so severely that it becomes less functional as a state power.

EIU Democracy Index 2024 nevertheless ranks the Nordic countries at the very top as democracies. This shows that analysts at The Economist do not attach much weight to the absence of strong constitutional courts, even though this raises a fundamental question: How can democratic quality be assessed without robust protection against the legislative and executive branches – even when power is exercised mildly?

In the feature “Can we trust the EIU Democracy Index 2025?”, Oagal has also problematized this in light of the normative effect this annual analysis has on the world’s nations. The Economist sends a clear signal when large democracies such as Italy and the United States are ranked as flawed despite having genuinely functioning constitutional courts, while Sweden, Denmark, Finland, Iceland, and Norway top the list without, or without well-functioning, such courts.

Constitutional courts in other regime types

Also outside liberal democracies, constitutional courts with real significance exist.

South Africa shows how a modern constitution and a strong court can function as a democratic backbone. In parts of South America and Asia, courts have at times been more independent than in some highly ranked Western democracies.

At the same time, the institution is used in other countries primarily symbolically – as legitimation, not as a check on power. This is an interesting observation in itself: those who wish to give the impression of a power system in good balance have such institutions, while those recognized as power systems in good balance do not emphasize them.

Table: national arrangements for constitutional review

Source: ChatGPT

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