The Use of Foreign Precedents in Constitutional Interpretation by the Nordic Courts

Abstract

The traditional Nordic model of judicial review of legislation, characterized – from the very beginning – by a strong deference towards the will of the legislator and, therefore, by a marked cautiousness (or ‘reluctance’) in the effective practice of constitutional review, has shown, in recent years, clear elements of evolution and change.

Significant amendments to the Constitutions of three (Finland, Norway and Sweden) of the five countries concerned, the strengthening of the Judiciary and the strong influence exercised by the jurisprudence of the European Courts on the protection of fundamental rights contributed increasingly to this development.

As in other legal systems, even in the Nordic experience there is no explicit use by the courts of foreign judicial precedents in matters of constitutional interpretation.

However, this does not preclude the total irrelevance of the comparative argument by the courts, given that a significant recourse to implicit comparison, worthy of careful consideration and analysis, may be appreciated.

Also in the future, in parallel with the recent evolution of the Nordic constitutional justice, interesting elements of development can, thus, reasonably be expected in terms of more intense reliance on comparative and international law by the Nordic courts.

Keywords: Comparative Constitutional Law; Comparative Law, Constitutional Justice, Judicial Review of Legislation, Nordic Law, Constitutionalism, Judicial Use of Foreign Law, Scandinavian Law, Nordic Supreme Courts