Nordic Constitutionalism and European Human Rights - Mixing Oil and Water?
Scandinavian Studies in Law, Vol. 55, pp. 101-124, 2010
24 Pages Posted: 13 Jan 2011
Date Written: January 12, 2011
This article seeks to make sense of why the ECtHR’s interpretation techniques are problematic from the point of view of Nordic legal culture and especially from the viewpoint of Nordic sovereignty of people flavoured version of constitutionalism. Especially, the dynamic and evolutive approach used in interpretation by the ECtHR is looked at in more detail; it is likely the most controversial interpretation technique of the Court, which causes troubles with national understandings of constitutionalism. The aim of this article is to shed light on the nature of the collision between international and national versions of constitutionalism in the sphere of human constitutional rights. Chapter 1 explains the starting point and aims, chapter 2 deals with the Nordic legal culture in general and specifically Nordic understanding of constitutionalism, and chapter 3 explains the position of the ECHR and the ECtHR and then goes on to define the dynamic and evolutive interpretation used by the Court. Chapter 4 takes few illustrative example cases and with the help of these tries to show how dynamic and evolutive interpretation actually takes shape in illustrative cases which have Nordic connections. Last chapter (5.) concludes that there are difficulties with judicial activism by the ECtHR and the way constitutionalism is conceived in Nordic legal mentality.
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