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The Nordic Counter-Narrative: Democracy, Human Development, and Judicial Review

Over the last few decades, the traditional Nordic reluctance vis-à-vis judicial review has come under attack. A unique combination of constitutional continuity and change has emerged. It makes the Nordic countries an ideal setting for assessing some of the core insights of canonical constitutional theory. Most notably, the traditional Nordic resistance to judicial hyperactivism alongside the region’s exceptional record on both the democracy and human development fronts provide ample material to assess the perception of judicial review as a necessary supplement to democracy and its supposed contribution to human development and good governance. The Nordic countries also provide a perfect context for studying what may be termed globalization in constitutional law as well as the emergence of amalgams of the local and the global reflecting centripetal convergence processes alongside patterns of enduring divergence. Likewise, it is difficult to think of a more suitable region for studying the links between economic liberalization, the reconstruction of the welfare state, and the rise of judicial review and rights discourse. The constitutional transformation of the Nordic countries may thus serve as a magnifying glass for similar processes of constitutional change elsewhere. However, despite this intriguing set up, constitutional events in the Nordic countries seldom generate international scholarly interest. Surprisingly, none of the major works critical of judicial review's legitimacy, democratic credentials, or effectiveness in limiting government draws on the Nordic experience to substantiate its claims. It is much less surprising, to be sure, that none of Ronald Dworkin's pro-judicial review works considers the possible lessons from the Scandinavian model of judicial review. With few notable exceptions, the region's potential contribution to contemporary debates in comparative constitutional law and politics remains for the most part unexploited and under-theorized. In this essay, I offer several realist observations concerning the possible lessons from Nordic constitutionalism with respect to two core questions. First, how necessary, let alone sufficient, a condition is active judicial review, strong or weak, in accomplishing high levels of democracy, human development, and other such ideals? And, by extension, what is the place of constitutional rights in a larger scheme of the modern welfare state? Second, what are the links between economic liberalization and shifting political power constellations on the one hand, and the rise of judicial review and rights jurisprudence on the other? With respect to each of these two questions, Nordic constitutionalism offers a counter-narrative to canonical insights of constitutional theory.