(Norway, out of all the other Nordic nations, has the strongest judiciary. So it would be interesting to take the Nordic nation with the strongest judiciary to compare it against America to highlight Nordic law’s respect for parliamentary supremacy.)
Of all the Nordic countries Norway maintains the strongest tradition of judicial review of statutory laws. In effect, although decentralised, this control function or power is exercised by the Supreme Court, which reviews whether a statute is in conflict with the Constitution. As in the US, in Norway, too, this competence was originally not expressly vested in a written constitutional document before 2015. But this is certainly not a novelty in Norwegian constitutional law. Judicial review of constitutionality emerged as long ago as the 19th century. However, today’s living tradition can be traced to 1976 and the famous Kløfta judgment. In this case, which concerned compensation for expropriation of property, one can see clearly the effect of US constitutional law and ideas which are more alien to other Nordic systems. However, even the Norwegian system does not fully follow the American model but has instead formulated its own approach, which combines strong American judicial review and the Nordic tradition of a softer or parliamentary-friendly approach.
In other words, the effects of the Nordic approach can be seen in the fact that the Supreme Court does not quash an Act or a particular provision of that Act, i.e. it does not declare an Act null and void but, rather, merely sets aside the provision in question. Moreover, there is very little similarity with the continental European approach, relying on constitutional courts, because the Høyesterett eliminates the legal-normative power of a provision only in the actual concrete case before the Court. But, of course, because of the de facto precedential power of the Høyesterett,its decision actually means that its case-bound elimination leads to a situation in which the provision loses its de facto authority in other cases too. By the same token, the Høyesterett does not seem to seek to replace or challenge the democratically-chosen legislator, although it may set legal limits on its legislative competence.– Nordic Law in European Context
Despite the claim here that when the Supreme Court sets aside a provision it de facto eliminates the provision because of the de facto power of precedent, this claim needs to be qualified by the fact that precedent in Nordic law isn’t as strong as in the common law. With regards Norway in particular, the differences with the English approach to precedent are as follows:
(1) Nordic superior courts tend to say as little as possible at a general level, as opposed to English courts which are more explicit about their legal reasoning. This makes it very difficult for Norwegian lawyers to actually find the “ratio decidendi” or legal principle which guides the other courts.
As to Høyesterett and its style of writing opinions, one may gain some general impressions from an analysis of dissenting opinions in the period 1961–65, made by Andenæs and Kvamme: Out of a total of 1517 cases, 222 had dissenting opinions. Out of the 222 dissent-cases, 74 were clearly related to questions of law. In more than half of these, the legal point of dissent was either (a) not discussed at all, the judge just declaring which of the competing rules he would use; or (b) the judges advanced different legal reasons without saying that they disagreed with each other. For these reasons it was found extremely difficult to relate the legal disagreements in the opinions to the different types of legally relevant arguments (Andenæs and Kvamme distinguish between statutory texts, parliamentary and pre-parliamentary materials of statutes, previous judicial decisions, and considerations relating to justice and policies), as well as to the relative weight of the arguments.
This reticence of the Norwegian courts is no less marked when it comes to the use of previous cases as a source of law. – I venture the hypothesis that the reticence of the courts and the minor role given to the study of cases in Norwegian legal education (in contrast to the focus on case study in the Anglo-American tradition), mutually reinforce one another into making the doctrine of precedent one of the least developed elements in Norwegian jurisprudence: Norwegian lawyers tend to speak with conspicuously more analytical refinement and interest about other sources of law than judicial decisions.Svein Eng: The Doctrine of Precedent in English and Norwegian Law
(2) From (1), Norwegian courts have never actually developed any doctrine of precedent or explanation of how precedent works. It would be unthinkable, for example, for the Norwegian Supreme Court to pronounce anything like the House of Lords 1966 “Practice Statement” that the Lords will not be bound by their own precedent. No Norwegian court has ever discussed the hierarchy of courts and which court may bind which court in precedent or how precedent works, for example, such as in the English case Young v. Bristol Aeroplane Co. where the court of appeal discussed the criteria for when it can depart from its own precedent.
The basis for the Norwegian practice of following precedent is a lot more realist. It’s not so much that there’s an explicit rule which binds the courts to following precedent. Rather, precedential reasoning is about anticipating what the higher courts will do, and whether they will overturn the lower court’s decision. Prior Supreme Court cases give a good guide to the lower courts on how they would reason on similar cases, but there is technically no rule stated anywhere that it has to be followed. They are a guide for the lower courts to *guess* how the higher courts will react. As a Norwegian Supreme Court judge puts it:
As far as I can see, the entire concept of precedent is based on the power of the Supreme Court to overturn judgements by the lower courts that do not follow earlier decisions of the Supreme Court – the vertical effect… The fact that the Supreme Court is the highest court in the country given the power in the Constitution to have the final say in a case, may explain why lower courts consider themselves bound by the judgments/decisions of the Supreme Court.Karin M. Bruzelius: The Norwegian legal system, the work of the Appeals Committee and the role of precedent in Norwegian law
So, it isn’t so much that there is a rule or law where the lower courts *have to* follow the Supreme Court. Rather, it is that the judgements of the lower courts can be appealed to the Supreme Court and overturn which makes the lower courts pay attention to how the Supreme Court did rule as a guide to whether or not they will overturn the present case. Thus, for example, if they think the case will never be escalated to the Supreme Court, they could effectively depart from any Supreme Court judgement.
From these considerations, it seems that the Norwegian Supreme Court’s judicial review powers are a lot more limited compared to the American one because (a) they only set aside a statutory provision for the case before them, they can’t actually null and void the statutory provision itself, (b) the weaker practice and doctrine of precedent means that the Supreme Court’s ability to strike down statutes would not “bind” any other courts anyway, thus the statute would still be valid for any other court.