Diritto Pubblico Comparato ed Europeo

Sommario

1. Il judicial review of legislation in Norvegia: caratteri generali. – 2. Alle origini del costituzionalismo norvegese: la Costituzione del 1814 e la forma di governo. – 3. Costituzionalismo e nascita del sindacato di costituzionalità sulle leggi: la dottrina norvegese. – 4. La nascita del controllo diffuso di costituzionalità per via giurisprudenziale e il ruolo della Corte suprema. – 5. (Segue): le fasi del consolidamento del judicial review of legislation e il self – restraint della Corte suprema. – 6. La rinascita della giustizia costituzionale norvegese. – 7. (Segue): la tutela dei diritti fondamentali e la dimensione sopranazionale. – 8. Spunti (non) conclusivi: l’affinamento delle tecniche interpretative e il nuovo attivismo della Corte suprema in prospettiva

Abstract

The “breakthrough” of judicial review in the Norwegian judicial system, as defined the rise of constitutional justice in Norway, is the issue of this article, which deals with its evolution and recent developments.When, after Napoleonic wars, Norway became independent and promulgated its own Constitution, the question of supremacy of the Grunnloven over other sources of law was resolved in the same manner as in United States: the Constitution, the supreme law of the Country, is to be respected by the State powers, included the Parliament. From a judicial point of view, the strengthening of this important principle laid the foundations for the outset of judicial review of legislation, already during the first years of activity of the Supreme court. In 1866, with an important case, the Supreme court definitely assumed the existence of a power to be exercised bycourts, to review laws in conflict with the Constitution. Since then, this power, never introduced in the text of the Constitution, nevertheless was not doubted anymore. Its development has not been always coherent, characterized by an alternation of self – restraint and judicial activism.Anyway, since 1976, with the Kløfta case a new approach has been experimented in the jurisprudence. Taking into account the doctrine of the preferred positions, the Supreme court distinguished among fundamental rights, economic and social rights and issues related to State powers. Judicial discretion should be penetrating just in the first case, when a question concerning freedoms and human rights is at issue. In the other two cases, in order to avoid the referring to political questions, a great self-restraint should be exercised by courts, in order to let the Parliament and the Government implement their functions. This important case paved the way to a new attitude of the Supreme court, which is more and more involved in the interpretation and application of national and international norms on human rights, especially those of the European Convention of human rights. In perspective, this judicial activism of the Supreme court, a more open approach to interpretation and its role in the judicial system, could make it closer to the European Constitutional courts.