An Introduction to Norwegian Legal Culture

In the second quarter of 2022, 5,455,582 persons were registered as Norwegian inhabitants. See Statistics Norway, ‘Population in Norway. 2nd quarter 2022’. https://​www.​ssb.​no/​en/​befolkning/​folketall/​statistikk/​befolkning.

According to Statistics Norway, the Norwegian population increased with 33,901 in 2021. See ibid.

See FN-sambandet, ‘Norge’. https://​www.​fn.​no/​Statistikk?​country=​306#group-by-letter.

Ibid.

Sunde (2005), pp. 53–55.

Ibid. p. 40.

Sunde (2014a), pp. 139–141.

This has caused that some Norwegians even until today regard the reformation as a national tragedy that led to irrecoverable loss regarding both the native Norwegian language and culture.

Regarding the influence of absolutism in Norway, see, for instance, Mykland et al. (1975).

On the constitutional history and the context for the independence of 1814, see Michalsen and Holmøyvik (2015); Mestad (2014), pp. 1 ff.

Michalsen (2014), p. 76.

Lov 1999-05-21-30 om styrking av menneskerettighetenes stilling i norsk rett [The Human Rights Act].

The Constitution has, however, been amended several hundred times since 1814, see Langford and Berge (2019), p. 223.

The proper number and size of counties has been subject to political controversy over the last years, and a merger reform reduced the number from 19 to 11. The reform has been partially reversed, and from 1 January 2024, there will be 15 counties.

Bolstad (2021); Statistics Norway, ‘Population. Table 11342: Population and area (M) 2007–2022’. Available at https://​www.​ssb.​no/​en/​statbank/​table/​11342.

See The World Bank, ‘Gross domestic product 2021’, available at https://​databank.​worldbank.​org/​data/​download/​GDP.​pdf. GDP per capita was approximately 89,200 USD in 2021, see The World Bank, ‘GDP per capita (current US$)’, available at https://​data.​worldbank.​org/​indicator/​NY.​GDP.​PCAP.​CD.

UNDP, ‘Gender Inequality Index 2021’, available for download at https://​hdr.​undp.​org/​data-center/​documentation-and-downloads.

Nylund (2014), p. 104.

Ibid.

Sunde (2017), pp. 59–60.

On administrative courts in the East-Nordic countries (Finland and Sweden), see Nylund (this volume), Sect. 2.1; Jonsson (this volume), Sect. 3.4.

For some more details on terminological continuities and functional discontinuities in the Norwegian legal system, see Koch (2015), p. 461.

Of special importance was the reform of the Civil Dispute Act from 1915.

Sunde (2014a).

On the history and development of the jury system, see, e.g. NOU 2011: 13 Juryutvalget—Når sant skal skrives Chapter 5; NOU 2002: 11 ‘Dømmes av likemenn’ Chapter 3; NUT 1969: 3 Innstilling om rettergangsmåten i straffesaker fra Straffeprosesslovkomiteen, pp. 73 ff.

NUT 1969: 3, p. 75.

For the preparatory works, see Prop. 70 L (2016–2017) Endringer i straffeprosessloven mv. (oppheving av juryordningen).

In the district courts, the panel is as a main rule set up with two lay judges and one professional judge, cfr. Lov-1981-05-22-25 om rettergangsmåten i straffesaker (straffeprosessloven) [The Criminal Procedure Act] § 276. In the appellate courts, the panel consists of five lay judges and two professional judges, cfr. § 332. However, it is worth mentioning that not all cases are decided under the co-operational model.

Through the Civil Dispute Act of 1915, which, however, only entered into force several years later—in part in 1927 and in its entirety in 1936.

Lov 2005-06-17-90 om mekling og retterganger i sivile tvister (tvisteloven) [the Civil Dispute Act] § 9–12 (1) for district courts. A similar right also applies to the procedure before courts of appeal, cfr. the Supreme Court’s decision in HR-2009-634-U, para. 25. In the Supreme Court, laymen have never been involved neither in criminal nor civil cases.

All numbers retrieved from The Norwegian National Courts Administration, Annual Report 2021, pp. 11 ff.

For a European comparative context, see Council of Europe, ‘European judicial systems. CEPEJ Evaluation Report. 2022 Evaluation cycle (2020 data)’, Part 1: Tables, graphs and analyses, pp. 128 ff. As noted by Nylund (2022), p. 20, a certain caution is needed when using these comparative statistics.

See Nylund (2022), also for the numbers on family law and administrative law.

See NOU 2017: 8 Særdomstoler på nye områder?, pp. 38–39.

Ibid., p. 37.

See https://​www.​domstol.​no/​no/​domstoler/​tingrett/​oslo-tingrett/​om-oslo-tingrett/​faglig-spesialisering/​.

Lov 1966-12-16-9 om anke til Trygderetten [Appeals to the National Insurance Court Act] § 26; and Lov 2004-03-05-12 om konkurranse mellom foretak og kontroll med foretakssammenslutninger [Competition Act] § 39.

The Norwegian National Courts Administration, Annual Report 2021, pp. 15 ff.

For the Supreme Court’s webpages, see https://​www.​domstol.​no/​en/​supremecourt/​. The webpages contain annual reports, selected rulings and summaries of all rulings in English.

The Norwegian Supreme Court, Annual Report 2021, p. 34. On the development of the Court’s caseload, see further Sect. 3.3 below.

See the Civil Dispute Act §§ 30-3 and 29-3 and the Criminal Procedure Act § 306.

See Lov 1915-08-13-5 om domstolene (domstolloven) [the Court Act] § 4.

For details regarding the implementation of the two chambers and their function, see Sunde (2015a), pp. 165–167.

See the Court Act § 5 (4). Recent examples of cases decided in plenary session include a case concerning land rights for a sámi community (HR-2018-456-P), a climate litigation case concerning the validity of petroleum production licences (HR-2020-2472-P), and a case concerning the scope of constitutional review by courts in relation to the transfer of power to international bodies (HR-2021-417-P). The rulings are available in English at the Supreme Court’s webpages.

Bårdsen (2015).

See https://​www.​vfgh.​gv.​at/​cms/​vfgh-kongress/​en/​geschichte.​html.

One example is a criminal case from 2008, where Oslo district court (with one professional judge and two lay judges) found that the application of a provision in the Penal Act would violate the constitutional prohibition on retroactive legislation. The conclusion was upheld by the Supreme Court, cfr. HR-2010-2057-P (available in English at the Supreme Court’s webpages).

Holmøyvik (2015), pp. 344–345; Sunnquist (2014) pp. 132–133, 156–157 and 174.

Sunde (2015a), pp. 236–237.

Holmøyvik (2015). For a general account of the development of judicial review, see also Kierulf (2018).

Kongeriket Noregs Grunnlov [The Norwegian Constitution] § 89.

Until recently, a third exception was the county court in Oslo that dealt with bankruptcy and several traditional notary tasks. The court was merged with the district court in 2021 (in other cities, the county courts merged with the district courts in 2006).

Sevatdal and Wannebo (2007), pp. 391–414.

The Norwegian National Courts Administration, Annual Report 2021, p. 18.

See http://​www.​arbeidsretten.​no/​engelsk.​php.

The Norwegian Labour Court, Annual Report 2021, p. 7. Available (in Norwegian) at https://​www.​arbeidsretten.​no/​dokumenter-og-rapporter/​.

Formerly the Inner Finnmark district court but merged with Eastern Finnmark district court as part of the recent court reform.

On the Sámi dimension of the court, see https://​www.​domstol.​no/​no/​domstoler/​tingrett/​sis%2D%2Dja-nuorta-finnmarkku-diggegoddi%2D%2Dindre-og-ostre-finnmark-tingrett/​samisk-dimensjon/​.

For a concise overview, see Nylund (2014).

See the official report of the competent department: Difi-rapport 2014:2 ‘Viltvoksende nemnder? Om organisering og regulering av statlige klagenemnder’ p. 14. Available at https://​dfo.​no/​rapporter/​klart-reformbehov-nar-det-gjeld-statleg-myndigheitsutovi​ng.

Domstolsadministrasjonen, ‘Domstolene i Norge. Årsrapport 2014’ pp. 16–18.

On the history of alternative dispute resolution with a particular focus on mediation in the Nordic countries, see Nylund et al. (2019), p. 2.

The Norwegian Police, Annual Report 2021, p. 10.

See Bernt (2011).

Domstolsadministrasjonen, ‘Domstolene i Norge. Årsrapport 2014’, p. 17.

Ibid.

See subsection on internationalisation below.

See the subsection on internationalisation below.

Sunde (2015a), pp. 451–453.

Sunde (2014b), pp. 48–49.

Cf. King Christian the V’s Norwegian Code of 1687—Book I Section I Art. 2 in conjunction with Art. 4, stating that nobody but the King had the right to amend, abolish, dispend or even interpret the provision of this early modern law compilation. Advocates were at the same time prohibited to refer to precedents in the Supreme Court.

Ulvund (2014), pp. 141–173.

Wolf (1996), pp. 47–48.

See Sunde (2007) p. 39.

For an overview, see Sandvik (2013) and Michalsen (2021).

Lov 1991-07-04-47 om ekteskap [the Marriage Act], and Lov 1981-04-08-7 om barn og foreldre [the Act on Parents and Children].

Based on searches in the Lovdata database conducted 12 December 2022, see https://​lovdata.​no/​sok?​q=​samboer&​filter=​LOVER and https://​lovdata.​no/​sok?​q=​samboer.

See, e.g. Lov 2019-06-14-21 om arv og dødsboskifte [the Inheritance Act] § 2; Lov 2017-06-16-48 om adopsjon [the Adoption Act] § 6; Lov 1992-06-26-86 om tvangsfullbyrdelse [the Enforcement Order Act] § 7–13; Lov 1996-06-07-32 om gravplasser, kremasjon og gravferd [the Funeral Act] § 9; and Lov 2008-05-15-35 om utlendingers adgang til riket og deres opphold her [the Immigration Act] § 41.

For an overview, see Backer (2022), pp. 13–15.

See Backer (2022), p. 13.

E.g. Decree relating to the fishing for Greenland halibut north of 62° N in 2022 (FOR 2021-12-14-3532), which applies from 1 January 2022 until 31 December 2022.

E.g. Decree relating to the use of motor vehicles on uncultivated land and in ice-covered watercourses (FOR-1988-05-15-356).

E.g. Decree relating to municipal marriage ceremonies (FOR-2017-09-18-1421).

E.g. Decree relating to the Act on cemeteries, cremation and funerals (FOR-1997-01-10-16).

See, e.g. https://​www.​stortinget.​no/​no/​Saker-og-publikasjoner/​Publikasjoner/​Innstillinger/​Stortinget/​2013-2014/​inns-201314-299/​1/​.

The preparatory works are mostly digitalised and can be accessed via the database Lovdata or through the webpages of the Government and Parliament.

Nygaard (2004), pp. 103–104; Monsen (2012), p. 86.

E.g. Zweigert and Kötz (1998), p. 277; Sundberg (1969), p. 179; Cordero-Moss (2007), p. 14.

On the terminology of ‘mixed legal systems’ and ‘legal hybrids’, see Koch (2020), pp. 62 ff.

Sunde (2014b), p. 53.

See Sandvik (2013) and Michalsen (2021).

Today the database Lovdata provides full text-versions of all Supreme Court decisions dating back to the nineteenth century. In addition, a great number of appellate court and district court decisions can be found here too. Note, however, that these rulings do not have the same function and effect as precedent, see in more detail Sect. 5 below.

Sunde (2015a), pp. 243–245.

Cf. The Norwegian Constitution § 88: ‘The Supreme Court rules in last instance’.

Grendstad et al. (2020), pp. 173–179.

Ibid., pp. 82–85.

See Sunde (2012), pp. 62–63 and 66–68.

It is possible to argue, however, that the role of Supreme Court precedent has been recognised by the legislator. Under The Court Act § 5 (4), a potential deviation from its own practice is one of the factors to be considered when the Court decides whether a case shall be relinquished from a chamber in favour of a grand chamber or plenary session. This procedure was first established with the Plenary Act of 1926.

Sunde (2015a), pp. 245–256.

Nygaard (2007), pp. 525–530; Lødrup and Kjelland (2009), pp. 572–574.

Sunde (2015b), pp. 78–80.

HR-2016-1803-A (para. 15).

Helland and Koch (2014b), p. 126.

The term ‘reelle hensyn’ is widely used today, cf. Eckhoff and Helgesen (2001) and Andenæs (2009), pp. 3 ff. However, scholars have pointed out that the choice of terminology is to some extent a matter of personal preference. As demonstrated more recently by Blandhol (2004), pp. 366–371 ff., the label ‘reelle hensyn’ may have been introduced by Eckhoff, but the elements it encompassed were already in active use in practical legal argumentation. In other words, the term ‘reelle hensyn’ is simply a label applied to a number of previously existing phenomena and does not serve to distinguish argument bases which are relevant to legal argumentation from argument bases which are not. For further discussion, see also Blandhol (2013), pp. 67–154 with further references. In this article, we use the terms ‘value-based assessments’ and ‘policy considerations’ interchangeably.

Blandhol (2013), pp. 150–153.

Sunde (2014b), pp. 58–59; Sunde (2012), pp. 69–70.

Fleischer (1998) p. 70; Blandhol (2013), p. 232; Skoghøy (2018), p. 157; Høgberg (2019), p. 343 (but see pp. 346–347 for nuances).

Sunde (2015a), pp. 293–295. It must be remembered that ‘reelle hensyn’ might be referred to when performing system-based assessments as well. However, system-based assessments are usually not referred to as ‘reelle hensyn’ if they operate alone and are not supported by value-based assessments.

For an overview, see, e.g. Björne (2002), pp. 216 ff.; Björne (2007), part III, Section 1.1.

Eckhoff and Helgesen (2001), p. 18.

See, in particular, the works by Sverre Blandhol, e.g. Blandhol (2019).

Monsen (2016), p. 159: «Den juridiske metodelæren åpner for at det i en rekke tilfeller kan tenkes flere legitime løsninger på et rettsspørsmål.» Translation: ‘The theory of legal method allows in several situations that there might be more than one legitimate solution for a specific legal (dogmatic) question’.

However, the legal realistic approach to law is no longer uncontested in Norway today, see further in Sect. 5.3.

An annual survey on the public confidence in Norwegian courts shows that since 2010, the percentage of respondents with very high (‘svært stor’) or quite high (‘ganske stor’) confidence in the courts has been higher than 80% every year, even reaching 90% and 92% in 2020 and 2021. For 1998–2004, the numbers were between 60% and 70% annually. See The Norwegian National Courts Administration, Annual Report 2021, pp. 18–19.

Helland and Koch (2014c), p. 312.

For a similar but more detailed conclusion, see ibid., pp. 312 ff, 316 f.

Parts of this subsection is based on Helland and Koch (2014b), pp. 99–140.

For a longue durée perspective on the historical development of Norwegian legal method, see Sunde (2019b).

Eckhoff (1971). Despite the title of this book (which could be translated as ‘A theory of legal sources’) he argued against the traditional concept ‘source of law’, which he found misleading. In the following, we will cite from the most recent edition, i.e. Eckhoff and Helgesen (2001).

Eckhoff and Helgesen (2001), pp. 22 ff.

A prominent example is the hospital journal judgment (Sykejournaldommen, Rt. 1977, p. 1035). Here, a patient wished to access his medical journal, as he considered filing a claim for damages against the hospital. Finding that the right to access administrative documents was not exhaustively regulated in existing legislation, the patient was granted access based on general legal principles (alminnelige rettsgrunnsetninger). This legal argument base belongs to the category policy considerations.

Høgberg and Kinander (2011), pp. 43 f.; The Nordic legal realism is based on an approach to the question of what constitutes law that is similar to the American, compare Holmes (1897), pp. 457, 460 f.: ‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law’. Eckhoff himself had stayed in the United States in 1947–1948 and written a book on the American legal system and legal science, see Eckhoff (1953).

The considerable influence of Eckhoff’s theory on legal method may be due to the fact that it is based on an extensive analysis of jurisprudence from the Supreme Court, something which affords the theory a high degree of legitimacy. See Tande (2011), p. 4.

Cfr. e.g. the statements about Eckhoff’s influence in Skoghøy (2018), preface and p. 26; Askeland (2018), pp. 520 and 523; Bergo (2022), p. 20.

This approach clearly resembles the argumentation theory described by Viehweg (1974). This structural parallel between Viehweg’s theoretical approach on the one hand and the pragmatic theories on legal method in the Scandinavian legal systems on the other has been highlighted by Askeland (2002), p. 24, as far as Norwegian law is concerned and, with regard to Swedish law, by Andersson (1993), pp. 216–239, especially on p. 231.

According to some, Norwegian law essentially recognises three legitimising factors which serve to explain the principles of relevance. First and foremost, law is legitimised through its democratic basis. However, a democratic basis is neither an absolute requirement nor necessarily sufficient for law to be recognised as legitimate. Other legitimising factors are predictability or legal certainty and justice or fairness. A legitimate legal rule must strike a balance between these factors. The scope of this article does not leave room for a more detailed description of the system of legitimacy. See, for this purpose, Nygaard (2004), p. 43 ff.; Bernt and Mæhle (2007), pp. 142 ff. and 177 ff., compare pp. 109 ff. An introduction in English is also given by Helland (2014), pp. 26 f.

Compare the distinction made by Henninger (2014). According to this definition, Norwegian law has no sources of law whatsoever, but is made up entirely of secondary argument bases. Even the wording of an Act of Parliament, despite its central importance in the practical application of the law, is only convincing. There is no unconditional obligation to arrive at the result indicated by the wording.

See, e.g. Mæhle and Aarli (2022), p. 211; Skoghøy (2018), p. 17; Blandhol et al. (2015), p. 316 (fn. 9).

Askeland (1999), p. 121, who opined that institutionalising the normative effects of policy considerations by recognising reelle hensyn as one of the seven legal argument bases may lead to unpredictable and even unjust results.

Lov 1969-06-12-26 om skadeserstatning (skadeserstatningsloven) [The Norwegian Compensatory Damages Act] is an example of the latter. The Act contains provisions on liability in tort under certain special conditions, such as parents’ liability for damages caused by their children and owners’ liability for damages caused by pets, but the general rules on liability remain customary law.

There are no codifications neither in private nor in public law. In criminal law, however, the basis in legislation required by the strict principle of legality contained in § 96 of the Constitution led to the adoption of a Penal Act in 1842, later replaced first by the Penal Act of 1902 and then by the Penal Act of 2005. On the fragmentary legislative technique common in all other areas of law, see, for example, Nygaard (2004), p. 29.

Cf. the Constitution § 88.

The Constitution § 88 literally only states that the Supreme Court rules in the final instance. This is, however, understood as both a prohibition of denial of justice and an empowerment to decide authoritatively on the content of the applicable law. See, e.g. Mæhle and Aarli (2022), pp. 98–99; Skoghøy (2018), p. 19; Monsen (2012), pp. 37–38.

Eckhoff and Helgesen (2001), p. 23.

Tande (2011), p. 23.

See, e.g. Nygaard (2004), pp. 29 ff.; Fleischer (1995), pp. 64 ff.; Bernt and Mæhle (2007), pp. 218 f; Mæhle and Aarli (2022), Chap. 8; Skoghøy (2018), Chap. 3.

These later elaborations on the understanding of legislation are, however, only allotted limited weight, as they are considered to be lacking democratic legitimacy. The preparatory works gain a measure of democratic legitimacy by means of the adoption of the Act, something which in the absence of statements to the contrary is considered an implicit approval of the information contained in the motives, but this implicit approval is of course lacking in the case of subsequent elaborations on interpretation. However, even such statements are not wholly irrelevant, and their weight may vary depending on the type of statement as well as the concrete circumstances of a case. On the varying weight of subsequent statements, see Eckhoff and Helgesen (2001), pp. 99 f.

Eckhoff and Helgesen (2001), pp. 288 ff.

This term was not employed by Eckhoff himself, but is commonly employed by subsequent authors to describe his methodological approach, compare for example Bergo (2002), p. 39; Askeland (2003), pp. 13 ff; Frøberg (2019). For a critical account of other scholars’ ways of describing ‘Eckhoff’s balancing model’, see Boe (2021), Chap. 11.

Bernt and Mæhle (2007), pp. 200 f., 204 f. and 206 ff.; Skoghøy (2018), pp. 17–18; Mæhle and Aarli (2022), p. 209; Pedersen and Magnussen (2019), p. 706.

Eckhoff and Helgesen (2001), pp. 20 ff.; Nygaard (2004), p. 31.

On the difference between the concepts ‘legal rule’ in Norway and Germany respectively, see Helland and Koch (2014c).

Helland and Koch (2014b), pp. 112 ff.

The concept of primary legal basis (primært rettsgrunnlag) was introduced by Nygaard (2004), p. 100.

Very clear on this feature of Norwegian legal method Eckhoff and Helgesen (2001), p. 23.

Andenæs (2009), p. 21.

The Constitution is lex superior to ordinary legislation, which in its turn takes precedence over administrative regulations in case of conflict. Pursuant to clauses of precedence (contained in ordinary legislation) that we will come back to in Sect. 7 on internationalisation, certain human rights conventions and EEA law takes precedence over (other) ordinary legislation, but yields to the Constitution in case of conflict. This position in the hierarchy of written law has been referred to as ‘semi-constitutional’ in recognition of the legal consequences of the precedence clauses, but the rules remain formally on the level of ordinary legislation, and the precedence clauses may be revoked by the Norwegian parliament at any time (although this is highly unlikely in the current political climate).

On the discretion of the courts, see Mæhle (2005). For an overview in English of the weight of the wording and the possibility to deviate from this, see also Helland (2014), especially pp. 30–31.

See the Fatherhood I ruling (Rt. 1916, p. 648). A man was sued for fatherhood of a child born about nine months after he had intercourse with the mother, but sought to defend himself by proving that he was sterile and therefore could not possibly be the father in a biological sense. The Act from 1892 regulating fatherhood and (perhaps most importantly for the mother) the obligation to pay child support did not allow for any kind of defence provided the legal conditions—namely sexual intercourse at the relevant time—were fulfilled. According to the preparatory works (Ot.prp. no. 10 (1892), p. 80), alleged sterility was explicitly not accepted as a defence, both because the reliability of such proof was questionable, and because of the ‘disgusting’ trials of evidence which might then have been required to take place before the courts. Faced with seemingly conclusive evidence of sterility, the majority of the court found themselves unable to uphold a legal rule which nevertheless named the sterile plaintiff as father to the child, as such a rule was found to be ‘in itself unreasonable’. When the relevant legislation was reviewed in 1915, Parliament explicitly chose to retain the previous regulations. Nevertheless, the result from 1916 was repeated and evidence of sterility accepted as defence when the problem next arose in the Fatherhood II ruling (Rt. 1921, p. 406), in contradiction not only of the wording of the Act, but also of the recently confirmed, express will of the legislator. For further examples, see Graver (2011), pp. 21 ff. For a more recent example, see HR-2018-2241-U, where the Appeal Selection Committee concluded that a DNA test collected in a criminal case could be used as evidence in civil cases concerning clarification of paternity, despite § 12 (6) of the Police Register Act prescribing that the police’s DNA register shall only be used in criminal cases.

Eckhoff and Helgesen (2001), p. 23. In the case of the abovementioned Fatherhood II ruling, the wording was set aside primarily for self-evident reasons of justice and legal certainty.

Eckhoff and Helgesen (2001), pp. 27 f. Compare the Supreme Court’s reasoning in the Fatherhood II ruling.

Tande (2011), pp. 16 ff. with further references.

Critical already Bernt and Doublet (1993), p. 145, who predicted a paradigm shift in the form of a deviation from the legal realism. On this topic, see Askeland (2003); see also Krüger (1996), p. 281. For an overview, see Askeland (2018), pp. 521 ff.

See also Frøberg (2019), p. 512. In addition comes the criticism of legal realism’s presupposed scientific theory, see, e.g. Eng (2007), pp. 312–314.

These assertions were first made in a study of the Supreme Court’s use of preparatory works from 2000, see Bergo (2000), cfr. pp. 944 ff. for the conclusions. See, moreover, Bergo (2022), pp. 20 ff.

Bergo (2022), pp. 31 ff; Mæhle and Aarli (2022), pp. 199–201; Frøberg (2014), pp. 63 ff.

Mæhle (2005); Tande (2011), p. 23.

Nils Nygaard made a first step in this direction, see Nygaard (2004), pp. 61 and 159 ff. Nygaard was certainly not the first to discuss the values that constitute the normative basis of the legal system, see Bernt and Doublet (1996), particularly pp. 200 ff. However, his was the first textbook on legal method that sought to establish a normative basis for Eckhoff’s balancing model.

Mæhle and Aarli (2022), e.g. Chaps. 3 and 5 and pp. 219–220; Bergo (2022), Chap. 4; Eng (2022), p. 97.

Bergo (2022), Chap. 5; Mæhle and Aarli (2022), Chap. 3 (cfr. Chap. 8.2 as well).

Falch (2021), p. 55 (emphasis in original). The reference to the constitutional foundation goes to Article 2 of the Constitution, which (since 2012) proclaims that ‘this Constitution shall ensure democracy, a state based on the rule of law and human rights’.

Bernt and Mæhle (2007), pp. 225 f.

For details, see Sect. 6.

See, in this regard, e.g. Askeland (2018), Section 4.

Eckhoff and Helgesen (2001), pp. 23–24, cfr. Chapter 12.

It is illustrative that in Bergo (2022), international human rights and EEA law are treated following the Constitution (Chapters 6 and 7); in Skoghøy (2018), international treaties are treated following legislation (Chapter 5); and in Mæhle and Aarli (2022), Chapter 6 on ‘International perspectives’ is the most extensive chapter in Part 1 on ‘Basic legal knowledge’.

Jacobsen (2019), pp. 355–356; Arnesen and Stenvik (2015), pp. 11 ff. and 49 ff.; Askeland (2003), p. 12; Askeland (1999), p. 115 with further references. A study of the doctoral theses defended at the Faculty of Law in Bergen since its foundation in 1969 documents that the number of candidates reflecting upon or problematising fundamental notions of legal methodology has increased the last decades, see Kjølstad (2019), p. 52.

Sunde (2011), pp. 7–18.

The other university in the Danish-Norwegian realm was in Kiel in present day Germany, then in the dukedom of Schleswig-Holstein.

On the history of the law faculty, see the introductory chapters in Giertsen et al. (2019), pp. 1–130.

Sunde (2019a), pp. 134–135.

Sunde (2015a), p. 266.

Kjølstad (2019), pp. 46–47 (documenting the numbers until 2018).

Sivertsen et al. (2020), p. 25.

Sunde (2015a), p. 242.

See https://​tilsynet.​no/​information.

See https://​www.​advokatforeninge​n.​no/​om/​om-medlemskapet/​english/​working-as-a-trainee-lawyer-advokatfullmekti​g-in-norway/​.

The numbers are retrieved from the European Commission for the Efficiency of Justice’s database, available at https://​public.​tableau.​com/​app/​profile/​cepej/​viz/​QuantitativeData​EN/​Tables?​publish=​yes. The filters used were 2020 as year of reference, topic no. 10 (judges) and group of questions no. 13 (non-professional judges).

See the Criminal Procedure Act §§ 276 and 332.

A recent decision of the Supreme Court (HR-2017-33-A—Forusstranda) can be used as an illustrating example. The judges had to decide on a very difficult legal dogmatic question regarding fundamental aspects of contract-, bankruptcy- and company law. It can be argued that the judges were not able to consider properly the complexity of the legal argumentation put forward by the representatives of both parties. This decision will therefore presumably not lead to the clarification of the law but may cause further litigation as the law seems less clear than prior to the ruling. For a criticism of the judgment, see Marthinussen (2017).

The chapter is partly based on findings published in Helland and Koch (2014a).

Lov 1988-12-23-104 om produktansvar [the Product Liability Act], in relation to Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products.

On the changing attitudes towards internationalisation at the law faculty in Bergen, see Koch (2019).

Sunde (2015a), pp. 405–406.

The European Convention on Human Rights as well as the other Conventions listed in § 2 of the Human Rights Act are perhaps among the most important, besides the European Economic Agreement (EEA).

See, e.g. the Supreme Court judgments in HR-2016-2591-A, para. 48, and HR-2018-456-P, para. 103 and more generally Ruud and Ulfstein (2018), pp. 68–69.

The Supreme Court judgment HR-2016-2591-A offers an example of the limits of applying the principle of presumption.

§ 3 and § 2 respectively. In addition comes what is often referred to as ‘sector-monism’, where statutes in various fields state that the legislation only applies within the boundaries of international law. See, e.g. the Penal Act § 2 and the Civil Dispute Act § 1–2.

EU law is made part of the EEA Agreement through a continuous update of the Annexes to the Agreement, cfr. Part VII, Chapter 2 of the Agreement. In theory, the states may veto new EU law, but this has not happened thus far. For an overview of Norway and the EEA Agreement, see Finstad (2018).

See Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice. The increasing number of referrals is documented by Christiansen (2018), p. 1038.

Judgments handed down after the adoption of the EEA agreement are not binding on Norway, not even under international law, cfr. Article 6 of the EEA Agreement. However, this distinction between case law from before/after the adoption is of limited relevance in practice, see Finstad (2018), p. 68.

See Finstad (2018), pp. 68–69; Haukeland Fredriksen and Mathisen (2022), pp. 413 ff. See also, for instance, HR-2016-2554-P, para. 77.

On this, see, e.g. Aall (2022), pp. 46 ff.

See Rt. 2015, p. 93 (para. 57).

Helland and Koch (2014a), p. 364.

Sunde (2015a), pp. 405–406.

An illustrative example is how the European Court of Human Rights in 2014 concluded that a French general ban on full face veils, i.e. niqab and burqa, did not violate the right to freedom of religion, while the United Nations Human Rights Committee arrived at the opposite conclusion in 2018. Compare S.A.S. v France App no 43835/11 (ECtHR, 1 July 2014) and Sonia Yaker v France Communication no 2747/2016 (HRC, decided 17 July 2018, published 7 December 2018). But frequently, actors at the international level try to coordinate their approaches, see for instance, the EctHR’s ‘Bosphorus presumption’, establishing a (rebuttable) presumption that a state will not violate the ECHR by implementing the EU law. Cfr. Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v Ireland App no 45036/98 (EctHR, 30 June 2005) (paras. 155–156 and 165).

See, in particular, HR-2013-496-A (STX), where the Supreme Court disregarded an advisory opinion from the EFTA Court (E-2/11), based in part on the view that the opinion diverged from the ECJ’s practice (see, inter alia, para. 100).

One such case has been decided by the Grand Chamber of the Supreme Court, see HR-2021-1453-S (available in English at the Court’s webpages).

Act amending the National Insurance Act etc. (highlighting obligations of coordination of social security under international law) (LOV-2022-11-25-86). Cfr. the new Articles 1-3, 1-3 a and 1-3 b of the National Insurance Act (LOV-1997-02-28-19).

NOU 2020: 9, p. 26 (the committee’s own translated summary).

Sunde (2005), p. 326.

At the Faculty of Law in Oslo, a project focusing on clear and understandable language in legal research and teaching was launched in 2016, see https://​www.​jus.​uio.​no/​forskning/​prosjekter/​klarsprak/​index.​html.