Do We Need Constitutional Advice? Denmark—The Story of a Self-Sufficient Political System

Abstract

AbstractScandinavian legal culture is known for its scepticism towards granting courts too much political power at the expense of the legislature. There are no constitutional courts, nor do the ordinary courts exercise intensive judicial review of the constitutionality of the legislation. Against that background, one would expect the prevalence of effective alternative forms of prior constitutional control or an established tradition of seeking independent advice in constitutional issues. However, even though this is the case in some Nordic countries, this is not the case in Denmark. In this chapter, the Danish model of limited constitutional advice is explored in order to illustrate and analyse an example of a confident and self-sufficient political system regarding external constitutional advice. The explanation for this development is found in a combination of different features: the legacy of Scandinavian legal realism and a preference for the legislator; a scepticism towards constitutional rights and courts playing a more political role; and an absence of experience with authoritarian regimes during the Second World War. Even though there are indications that the coronavirus pandemic and the consequent restrictions of individual freedoms and rights might be a game changer towards a more general acknowledgement of the importance of external constitutional advice, Denmark is currently a Nordic outsider in the field of constitutional control. However, if we want to uphold the relevance of the national constitutional norms and prevent abuse of powers, the Swedish and Finnish solution of ex ante constitutional advice needs to be considered.Keywordsconstitutional adviceDenmarkjudicial reviewhuman rightslegal realismNordic legal cultureparliamentary supremacy