Outside the United States, Norway's 1814 constitution is the oldest written constitution still in force. Constitutional judicial review has been a part of Norwegian court decision-making for most of these 200 years. Since the 1990s, Norway has also exercised review under the European Convention of Human Rights. Judicial review of legislation under rights-instruments functioning constitutionally can be controversial. Having unelected judges overruling popularly elected majorities is sometimes seen as illegitimate and undemocratic, as it entails what has been termed a “counter-majoritarian difficulty”. Yet Norway remains one of the most democratic countries in the world. How does that add up?
The Norwegian contradiction of general assumptions about the democracy-threatening effects of judicial review suggests that assessing the legal and societal ideals underlying review discussions purely by use of normative theory is insufﬁcient. This book is based instead on the premise that evaluation of embedded practices in existing systems requires tying such normative assumptions to politically and historically situated inquiries. It argues that the political and legal culture in which review is exercised is significant for assessing review legitimacy. To the extent that the concept of rational justiﬁcation is essentially historical, and that to justify is to narrate how the argument has gone so far, this book provides one such narrative of the Norwegian story, from 1814 up until today.