Law is a world of its own—a world which, in Oagal’s assessment, does not exercise its role as a state power forcefully enough and therefore fails to adequately support citizens in Norway. This, together with proposed solutions, is the core argument of this article.
As the judicial branch, the courts are one of the three fundamental pillars of the rule of law and are tasked with interpreting the law, ensuring justice, and protecting individual rights. Together with our tireless editorial contributor ChatGPT, Oagal takes a deeper look at what can be done to restore the courts to the position of power they must hold in a modern society.
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Supreme Court Justice Dr. juris Arnfinn Bårdsen delivered the lecture “The Nordic Supreme Courts as Constitutional Courts: Some Recent Developments in Norway’s Supreme Court” at the Nordic Supreme Court Judges’ Seminar in Stockholm on 23–24 March 2015. He explains that the Nordic countries do not have separate constitutional courts empowered to intervene, and that the highest courts in these countries only perform functions that, in a certain sense, make them constitutional courts.
Does this work? No. What Justice Bårdsen describes is not sufficient to provide citizens with the support and protection they are entitled to in a modern democracy governed by the rule of law. People are subjected to injustice and abuse while the courts remain silent. It feels like a betrayal.
Read also: Concerned? Here is the Oagal model for strengthening Norwegian democracy
Norwegian courts have significantly more limited room for action than those in many other countries. Today, it is largely up to the parties themselves to bring cases before the courts, and judges have little opportunity to act on their own initiative. This can result in matters of fundamental importance never being examined, and individuals and organizations being left without real legal protection.
People simply cannot afford to take self-assured and wealthy state, county, or municipal administrations to court—institutions that will appeal and litigate to the very end and may then delay the implementation of court decisions. This is one of the reasons why Norwegian municipal councils, county councils, and their administrations can make decisions without fear of immediate correction.
Read also: Do I have legal protection? On the democratic failure of the rule of law
In this respect, the Supreme Court is of limited help. Norway’s highest court intervenes only on rare occasions when the legislature, the Storting, has enacted legislation that conflicts with the Constitution. But when the administration violates the law and the Constitution, there is, as a general rule, silence from lower courts as well. Perhaps they have other priorities, believe that the court cannot intervene, or in fact lack the authority to do so.
Citizens are not well served by such a weak judiciary. The system is out of balance. The courts’ constitutional role must therefore be strengthened. One way to achieve this is to establish a specialized constitutional court, grant the Supreme Court an expanded mandate, and enable lower courts to intervene proactively.
In many other countries, courts play a more active role in public life. The United States is perhaps the best-known example. There, courts—including lower courts—have the power of judicial review, or constitutional review. This allows them to set aside laws or political measures deemed unconstitutional. For example, U.S. courts have frequently halted presidential orders and other measures considered incompatible with the Constitution.
This active oversight ensures that individual rights are not overridden by the executive or legislative branches. Although the American system has its challenges, it demonstrates how courts can protect the rule of law by intervening in principled cases.
In Norway, by contrast, the courts’ role is more restrained. The Norwegian legal system is built on the principle that it is the parties themselves who must initiate cases, and courts do not take up matters on their own initiative. This means that serious principled issues remain unaddressed, and that the administration can commit legal violations without agencies or responsible individuals being held to account. The judiciary appears passive and lacks the capacity to provide citizens with adequate protection when laws are broken.
Standing up for one’s rights against the administration and politicians today—in our social-democratic society—is an exclusive privilege reserved for a few with time, money, and resources. Or the right connections, which is fundamentally undemocratic.
A Norwegian, specialized constitutional court would be able to intervene without waiting for a specific case. Such a court could assess whether laws, regulations, and administrative practices comply with the Constitution, statutory law more broadly, and human rights. This would not only ensure that principled questions are actually addressed, but also function as an important control mechanism against abuse of power at all levels of administration.
At the same time, the Supreme Court should be granted an expanded mandate to intervene in cases of national and constitutional importance.
Lower courts should also be given the opportunity to act proactively in cases where county or municipal administrations violate the law or fundamental rights. This is crucial to protect individuals and groups who lack the resources—including financial means—to withstand the power of the administration. Courts should be able to intervene without requiring an extensive legal process initiated by the individual citizen.
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