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Seven Categories of Constitutional Critical Judging: An Interpretation of Nordic Case-Law

Sunnqvist, Martin LU (2015) In Giornale di Storia Costituzionale 30(II). p.141-153
Abstract
In Danish literature from the early 1970s, it was suggested that the freedom of speech should have a preferred position in relation to other constitutional rights. In a case from the Norwe-gian Supreme Court in 1976, judicial review of the constitutionality of legislation was divided in three categories. Constitutional rules about the freedom and security of the individual should be supervised most strictly by the courts, the economic rights of the individual should be in an intermediate position, and the relationship between the other branches of government should be supervised least strictly. When the Swedish constitution was to be amended in 2010, it was suggested in the travaux préparatoires that central parts of the constitutionally... (More)
In Danish literature from the early 1970s, it was suggested that the freedom of speech should have a preferred position in relation to other constitutional rights. In a case from the Norwe-gian Supreme Court in 1976, judicial review of the constitutionality of legislation was divided in three categories. Constitutional rules about the freedom and security of the individual should be supervised most strictly by the courts, the economic rights of the individual should be in an intermediate position, and the relationship between the other branches of government should be supervised least strictly. When the Swedish constitution was to be amended in 2010, it was suggested in the travaux préparatoires that central parts of the constitutionally guaranteed rights and freedoms should be supervised more strictly by the courts than other constitutional norms.

Nevertheless, there is no commonly accepted view on whether different constitutional rights should be divided into different categories at all, and, if so, how the different categories of constitutional norms should be organised. I suggest that cases from the Norwegian, Danish and Swedish Supreme Courts from the nineteenth and twentieth centuries can form a basis for arranging the issues into seven categories. Thus, arguments can be found in cases which – with several decades – precede the time when this issue started to be discussed explicitly. In-terestingly, in recent years, case-law related to Article 6 of the ECHR has moved well-established fundamental procedural principles to the level of constitutional law. This fact means that there are three categories which should, in my view, for both new and historical reasons, be ranked hierarchically above the ones hitherto discussed.

The seven categories that I have identified are:

1. the responsibility of the judge for the functioning of the judicial procedure,

2. the responsibility of the judge for access to judicial procedure,

3. the responsibility of the judge for legality,

4. the protection of the judge for fundamental rights and freedoms, and the balancing of these rights and freedoms,

5. the protection of the judge for economic rights, and the balancing of these rights,

6. the protection of the judge for other types of rights,

7. the supervision of the judge of the relations between the other two branches of gov-ernment. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
rättshistoria, legal history
in
Giornale di Storia Costituzionale
volume
30
issue
II
pages
141 - 153
publisher
Edizioni Universita Macerata
ISSN
1593-0793
language
English
LU publication?
yes
id
d2e002e5-7d19-452c-a07f-97beaef158de (old id 8838686)
date added to LUP
2016-03-11 07:53:15
date last changed
2016-04-16 05:42:32
@article{d2e002e5-7d19-452c-a07f-97beaef158de,
  abstract     = {In Danish literature from the early 1970s, it was suggested that the freedom of speech should have a preferred position in relation to other constitutional rights. In a case from the Norwe-gian Supreme Court in 1976, judicial review of the constitutionality of legislation was divided in three categories. Constitutional rules about the freedom and security of the individual should be supervised most strictly by the courts, the economic rights of the individual should be in an intermediate position, and the relationship between the other branches of government should be supervised least strictly. When the Swedish constitution was to be amended in 2010, it was suggested in the travaux préparatoires that central parts of the constitutionally guaranteed rights and freedoms should be supervised more strictly by the courts than other constitutional norms.<br/><br>
Nevertheless, there is no commonly accepted view on whether different constitutional rights should be divided into different categories at all, and, if so, how the different categories of constitutional norms should be organised. I suggest that cases from the Norwegian, Danish and Swedish Supreme Courts from the nineteenth and twentieth centuries can form a basis for arranging the issues into seven categories. Thus, arguments can be found in cases which – with several decades – precede the time when this issue started to be discussed explicitly. In-terestingly, in recent years, case-law related to Article 6 of the ECHR has moved well-established fundamental procedural principles to the level of constitutional law. This fact means that there are three categories which should, in my view, for both new and historical reasons, be ranked hierarchically above the ones hitherto discussed.<br/><br>
The seven categories that I have identified are:<br/><br>
1.	the responsibility of the judge for the functioning of the judicial procedure,<br/><br>
2.	the responsibility of the judge for access to judicial procedure,<br/><br>
3.	the responsibility of the judge for legality,<br/><br>
4.	the protection of the judge for fundamental rights and freedoms, and the balancing of these rights and freedoms,<br/><br>
5.	the protection of the judge for economic rights, and the balancing of these rights,<br/><br>
6.	the protection of the judge for other types of rights, <br/><br>
7.	the supervision of the judge of the relations between the other two branches of gov-ernment.},
  author       = {Sunnqvist, Martin},
  issn         = {1593-0793},
  keyword      = {rättshistoria,legal history},
  language     = {eng},
  number       = {II},
  pages        = {141--153},
  publisher    = {Edizioni Universita Macerata},
  series       = {Giornale di Storia Costituzionale},
  title        = {Seven Categories of Constitutional Critical Judging: An Interpretation of Nordic Case-Law},
  volume       = {30},
  year         = {2015},
}