Nordic exceptionalism? Mapping constitutional reasoning in the Nordic countries
The rise of judicial power has been a global trend in the last three decades. Supreme and constitutional courts play an increasingly larger role in defining the direction, shape and content of public policies in many countries. The Nordic supreme courts have not been an exception. They have often taken a firmer stand on constitutional issues, determining the fundamental questions of politics. In some cases, their decisions even provoked accusations of excessive judicial activism. The impact of a constitutional ruling often goes well beyond the cases actually adjudicated by the courts. Therefore, it is of increasing importance to understand how Nordic judges justify their decisions in constitutional cases. The project studies the reasoning-practice of the supreme courts of five Nordic countries: Sweden, Norway, Denmark, Iceland, and Finland. Large comparative constitutional projects rarely include any Nordic country. The aim of this project is to join the global academic discourse on constitutional reasoning and to enrich it with the Nordic countries’ experience. We will identify patterns of argumentation in order to discover common traits and trends. This allows us to make a comparison with other supreme and constitutional courts in the world, in relation to which these studies have already been conducted. The comparison then enables us to better appreciate the constitutional role of judges in the Nordic countries and to inform debates on constitutional reasoning.
Final report
The purpose and development of the project
The Nordic CONREASON Project aimed to study constitutional reasoning in the supreme courts of the five Nordic countries empirically and to compare it with the practice of other courts in the world. By using a unique combination of quantitative and qualitative methods, the project has identified and explained several common features of the Nordic style of constitutional reasoning. We were interested in the constitutional arguments and key constitutional concepts which were used in the leading supreme courts’ constitutional cases. Our findings aim to inform normative debates on constitutional reasoning that take place in the Nordic countries and elsewhere both in scientific and in political discourse.
During the three years of the project, the research team, which included researchers from all five Nordic countries, met in person four times in Örebro and held numerous online meetings. A webinar series was also organized to discuss the institutional context of constitutional reasoning and the legal and political culture of the Nordic countries with a broader audience, comprising a total of ten webinars. Additionally, three more webinars were organized to discuss various topics with distinguished invited guests who had experience in empirical research in comparative constitutional law. The methodology and codebook were finalized after pilot research was conducted in the first year of the project. The team coded the cases during the following semester. The fourth and fifth semesters were dedicated to data analysis and the integration of the quantitative and qualitative pillars of the project. The final semester focused on disseminating and discussing results through participation in conferences and seminars, both within the Nordic countries and across other European countries, as well as on writing publications.
The project’s most significant results and conclusions
We conducted both intra-Nordic and global comparisons, enabled by data from 33 other jurisdictions worldwide collected in earlier projects using the same methodology. First, we examined the range, variety, and diversity of reasons in leading constitutional cases, finding that some courts use a richer and more diverse repertoire of arguments and concepts. Among Nordic courts, the difference between the average proportion of argumentation and conceptualization, as well as the variation within each of them, is less pronounced. Moreover, a statistically significant East-West divide in argumentation, but not conceptualization, was identified. Second, using principal component analysis, we show that while there is a variation among Nordic courts, globally they occupy a fringe position. In summary, despite the within-Nordic variation, when considering argumentation and conceptualization together, Nordic courts collectively hold a distinct global position in constitutional reasoning.
In our global comparisons using the full dataset, we found that Finland is positioned near the European Court of Human Rights (ECtHR), which is unsurprising given Finland’s relatively young Constitution, with its catalogue of rights largely modelled after the ECHR. Denmark’s position, closer to the center, aligns with the conventional understanding that the Danish Constitution understates the country’s actual commitment to and respect for human rights, enshrining fewer rights than the other Nordic constitutions. Our data suggests that this ‘constitutional overperformance’ is not driven by the Supreme Court’s jurisprudence but rather by the actions of the political branches of government.
Furthermore, we analyzed the use of specific types of arguments and key constitutional concepts in the leading constitutional cases of the seven Nordic Supreme Courts, conducting various statistical comparisons. First, our empirics show that Nordic supreme courts rely heavily on preparatory works. The prominent reliance can be attributed to the Nordic conception of democracy, which emphasizes popular sovereignty and the central role of Parliament. The use of preparatory works is a distinctive feature of the Nordic region, rarely found to any significant degree elsewhere.
Second, precedents are used most frequently in Norway and least in Denmark, Finland, and Sweden. In Norwegian law and legal scholarship, precedent is considered the most important legal source after legislation, a position supported by our data. Among the Nordic countries, the judiciaries of Norway and Iceland are often regarded as the most active, while Finland, Sweden, and Denmark tend to show greater judicial self-restraint. This aligns with our findings on the proportion of leading constitutional cases that use precedential arguments, with Norway and Iceland exhibiting the highest proportions.
Third, our findings reveal significant differences in the proportions of international harmonizing arguments among the Nordic countries, although all are notably high, with Iceland leading, followed by Finland and Norway. These proportions are exceptionally high even by global standards. The prevalence of international harmonization arguments in Iceland’s dataset reflects both the significant role and the contested status of international law within its domestic legal system. Iceland’s leading position in this regard is unsurprising, given the tension between dualist and monist views evident in the case-law of the Icelandic Supreme Court.
A general conclusion from our empirical investigations is that, with the possible exception of Norway, the Nordic constitutions play a relatively weak role in judicial reasoning compared to other Western countries. This is demonstrated by the relatively low number of cases involving constitutional review of legislation, the comparatively limited diversity in arguments and concepts used in constitutional reasoning, and the strong reliance on international human rights treaties, either alongside or in place of domestic constitutions.
New research questions
An unexplored question that warrants further research using a similar methodology is the extent to which constitutional reasoning differs from statutory interpretation and how this distinction impacts the doctrine of sources of law. Additional questions that could be examined using different empirical methods include the role of political bodies in shaping constitutional reasoning. In the Nordic legal systems, where the legislature plays a central role in safeguarding the constitution and constitutional rights, the political branches of government are instrumental in influencing how courts interpret the constitution. In Sweden, the Council on Legislation (Lagrådet) – composed of current and former judges from both supreme courts and responsible for conducting preventive constitutional review of legislative bills – stands out from a comparative perspective but has yet to be studied empirically.
Dissemination of the results
The results of the project have been presented and discussed at various seminars, lectures, and conferences across the Nordic countries and elsewhere in Europe. These include the conference of Þjóðarspegillinn in Iceland, the annual conference of the European Society for Empirical Legal Studies (ESELS) in Spain, the Nordic Political Science Congress in Norway, and the General Conference of the European Consortium for Political Research in Ireland. Findings from our project will also be included in the upcoming edition of a Danish constitutional law textbook. Additionally, the results were presented to and discussed with members of the Constitutional Committee (KU) of the Swedish Parliament in Stockholm. A total of eight scientific articles are planned for open-access publication in 2025, alongside with a co-authored book.
The Nordic CONREASON Project aimed to study constitutional reasoning in the supreme courts of the five Nordic countries empirically and to compare it with the practice of other courts in the world. By using a unique combination of quantitative and qualitative methods, the project has identified and explained several common features of the Nordic style of constitutional reasoning. We were interested in the constitutional arguments and key constitutional concepts which were used in the leading supreme courts’ constitutional cases. Our findings aim to inform normative debates on constitutional reasoning that take place in the Nordic countries and elsewhere both in scientific and in political discourse.
During the three years of the project, the research team, which included researchers from all five Nordic countries, met in person four times in Örebro and held numerous online meetings. A webinar series was also organized to discuss the institutional context of constitutional reasoning and the legal and political culture of the Nordic countries with a broader audience, comprising a total of ten webinars. Additionally, three more webinars were organized to discuss various topics with distinguished invited guests who had experience in empirical research in comparative constitutional law. The methodology and codebook were finalized after pilot research was conducted in the first year of the project. The team coded the cases during the following semester. The fourth and fifth semesters were dedicated to data analysis and the integration of the quantitative and qualitative pillars of the project. The final semester focused on disseminating and discussing results through participation in conferences and seminars, both within the Nordic countries and across other European countries, as well as on writing publications.
The project’s most significant results and conclusions
We conducted both intra-Nordic and global comparisons, enabled by data from 33 other jurisdictions worldwide collected in earlier projects using the same methodology. First, we examined the range, variety, and diversity of reasons in leading constitutional cases, finding that some courts use a richer and more diverse repertoire of arguments and concepts. Among Nordic courts, the difference between the average proportion of argumentation and conceptualization, as well as the variation within each of them, is less pronounced. Moreover, a statistically significant East-West divide in argumentation, but not conceptualization, was identified. Second, using principal component analysis, we show that while there is a variation among Nordic courts, globally they occupy a fringe position. In summary, despite the within-Nordic variation, when considering argumentation and conceptualization together, Nordic courts collectively hold a distinct global position in constitutional reasoning.
In our global comparisons using the full dataset, we found that Finland is positioned near the European Court of Human Rights (ECtHR), which is unsurprising given Finland’s relatively young Constitution, with its catalogue of rights largely modelled after the ECHR. Denmark’s position, closer to the center, aligns with the conventional understanding that the Danish Constitution understates the country’s actual commitment to and respect for human rights, enshrining fewer rights than the other Nordic constitutions. Our data suggests that this ‘constitutional overperformance’ is not driven by the Supreme Court’s jurisprudence but rather by the actions of the political branches of government.
Furthermore, we analyzed the use of specific types of arguments and key constitutional concepts in the leading constitutional cases of the seven Nordic Supreme Courts, conducting various statistical comparisons. First, our empirics show that Nordic supreme courts rely heavily on preparatory works. The prominent reliance can be attributed to the Nordic conception of democracy, which emphasizes popular sovereignty and the central role of Parliament. The use of preparatory works is a distinctive feature of the Nordic region, rarely found to any significant degree elsewhere.
Second, precedents are used most frequently in Norway and least in Denmark, Finland, and Sweden. In Norwegian law and legal scholarship, precedent is considered the most important legal source after legislation, a position supported by our data. Among the Nordic countries, the judiciaries of Norway and Iceland are often regarded as the most active, while Finland, Sweden, and Denmark tend to show greater judicial self-restraint. This aligns with our findings on the proportion of leading constitutional cases that use precedential arguments, with Norway and Iceland exhibiting the highest proportions.
Third, our findings reveal significant differences in the proportions of international harmonizing arguments among the Nordic countries, although all are notably high, with Iceland leading, followed by Finland and Norway. These proportions are exceptionally high even by global standards. The prevalence of international harmonization arguments in Iceland’s dataset reflects both the significant role and the contested status of international law within its domestic legal system. Iceland’s leading position in this regard is unsurprising, given the tension between dualist and monist views evident in the case-law of the Icelandic Supreme Court.
A general conclusion from our empirical investigations is that, with the possible exception of Norway, the Nordic constitutions play a relatively weak role in judicial reasoning compared to other Western countries. This is demonstrated by the relatively low number of cases involving constitutional review of legislation, the comparatively limited diversity in arguments and concepts used in constitutional reasoning, and the strong reliance on international human rights treaties, either alongside or in place of domestic constitutions.
New research questions
An unexplored question that warrants further research using a similar methodology is the extent to which constitutional reasoning differs from statutory interpretation and how this distinction impacts the doctrine of sources of law. Additional questions that could be examined using different empirical methods include the role of political bodies in shaping constitutional reasoning. In the Nordic legal systems, where the legislature plays a central role in safeguarding the constitution and constitutional rights, the political branches of government are instrumental in influencing how courts interpret the constitution. In Sweden, the Council on Legislation (Lagrådet) – composed of current and former judges from both supreme courts and responsible for conducting preventive constitutional review of legislative bills – stands out from a comparative perspective but has yet to be studied empirically.
Dissemination of the results
The results of the project have been presented and discussed at various seminars, lectures, and conferences across the Nordic countries and elsewhere in Europe. These include the conference of Þjóðarspegillinn in Iceland, the annual conference of the European Society for Empirical Legal Studies (ESELS) in Spain, the Nordic Political Science Congress in Norway, and the General Conference of the European Consortium for Political Research in Ireland. Findings from our project will also be included in the upcoming edition of a Danish constitutional law textbook. Additionally, the results were presented to and discussed with members of the Constitutional Committee (KU) of the Swedish Parliament in Stockholm. A total of eight scientific articles are planned for open-access publication in 2025, alongside with a co-authored book.