The Influence of American Theories on Judicial Review in Nordic Constitutional Law

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Courts of some Nordic countries started reviewing the constitutionality of legislation long before judicial review was established elsewhere in Europe. This study examines the influence of American law and theories of judicial review on the development, practice and theorization of judicial review in Norway, Denmark, and Iceland from the 19th century to the present.
The study describes how Nordic scholars in the late 19th century rationalized judicial review based on American theory and how American law influenced both their views of the institution and their way of thinking about substantive constitutional rights. These views in turn influenced Nordic jurisprudence for decades.
The author then shows how the changes that took place in American constitutional jurisprudence in the 1930s and 1940s influenced Nordic constitutional theory and constitutional jurisprudence. These changes received significant attention in Nordic legal circles and the study examines how these changes, as well as the American and Nordic theory that built on them, influenced Nordic jurisprudence.
Finally, it is argued that American influence in this area of law changed after 1965. Direct references to and discussions of American law almost disappeared from Nordic jurisprudence. American constitutional law was, however, an important influence on the case-law of the European Court of Human Rights, which importance increased in this period. The European Convention of Human Rights and the Court’s decisions have in turn immensely influenced Nordic constitutional law.

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Biographical Note

Ragnhildur Helgadóttir is an Assistant Professor of Law at Reykjavík University, where she specialises in constitutional law, legal theory and legal history. She has written articles and book-chapters on constitutional law and human rights in national and international law.

Table of contents

PART 1. INTRODUCTION
1.1. A brief overview of the constitutions of Norway, Denmark and Iceland;
1.2. What follows;
PART 2. CONSTITUTIONAL JURISPRUDENCE IN THE NORDIC COUNTRIES AND IN THE U.S. AROUND THE TURN OF THE TWENTIETH CENTURY
2.1.Introduction;
2.2. Overview of 19th century American legal thought;
2.2.1. Antipathy towards special legislation;
2.2.2. Private and public spheres;
2.2.3. Vested rights;
2.2.4. The scope of the police power;
2.2.5. Summary;
2.3. American law in Nordic theory;
2.3.1. The role of treatises in 19th century constitutional law;
2.3.2. “The Present Constitution of Norway”;
2.3.3. American history as a response to those suspicious towards judicial review - Bredo Morgenstierne;
2.3.4. Constructing a theory – Frede Castberg;
2.3.5. The influence of American court-critics – Mikael Lie;
2.3.6. Danish and Icelandic writings;
2.3.7. Concluding remarks – the 19th century law writers’ influence;
2.4. American influence in Nordic constitutional jurisprudence;
2.4.1. Judicial review and standards of review;
2.4.2. Liquor and milk – the doctrine of vested rights;
2.4.3. Pretextual use of governmental power;
2.4.4. Antipathy towards special legislation;
2.4.5. Private and public spheres;
2.4.6. Conclusions concerning the jurisprudence;
2.5. Conclusions;
PART 3 THE COLLAPSE OF ‘CLASSICAL LEGAL THOUGHT’ AND NEW VIEWS ON THE ROLE OF THE JUDICIARY
3.1. Introduction;
3.2. Awareness of American developments;
3.3. Constitutional interpretation;
3.3.1. Norwegian theory;
3.3.2. Danish theory;
3.3.3. Icelandic theory;
3.3.4. Nordic theory – conclusions;
3.3.5. Changes in Norwegian case law after World War II;
3.3.6. Danish case law: a short note;
3.3.7. Icelandic case law – changes preceding the theory;
3.4. Levels of scrutiny – conflicting influences and tendencies;
3.4.1. The conceptual problem and the American solution;
3.4.2. Levels of scrutiny in Nordic theory;
3.4.3. Norwegian case law;
3.4.4. Icelandic case law;
3.4.5. Summary;
3.5. Economic regulation and the decline of the doctrine of vested rights;
3.5.1. Norwegian law;
3.5.2. Icelandic law;
3.6. Delegation of legislative power;
3.7. Conclusions;
PART 4. THE FOCUS SHIFTS TO EUROPEAN LAW – THE PERIOD AFTER 1970
4.1. Introduction;
4.2. Nordic Writings about American Law after 1970;
4.2.1. Introduction;
4.2.2. The Influence of American First Amendment Theory – Peter Germer;
4.2.3. Discussion of American Theories of Judicial Review;
4.2.4. Conclusions;
4.3. American Influences on the Interpretation of the European Human Rights Convention and the Case Law of the European Court of Human Rights;
4.3.1. References to American Law in the European Human Rights
Case Law;
4.3.2. Tiers of Scrutiny in General and in the Equal Protection Jurisprudence;
4.3.3. Abortion and the Right to Privacy – An Example of Mingling Constitutional Ideas;
4.4. The Impact of the European Convention on Human Rights on Nordic Constitutional Law;
4.5. Conclusions – The Period After 1970;
PART 5. CONCLUSIONS
BIBLIOGRAPHY;
TABLE OF CASES;
INDEX
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