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AUTHORITATIVE INTERPRETATION OF THE CONSTITUTION: A Comparison 1of Argumentation in Finland and Norway

Veli-Pekka Hautamäki (University of Vaasa)

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Abstract

This is a comparative study of authoritative interpretation of the Constitution in Finland and

    Norway, that is, of the Basic Law in these countries. An ‘authoritative interpretation’ is an

    interpretation that is relatively undisputed. Many countries have a constitutional court that

    normally provides the most authoritative interpretation of the Constitution. In countries with

    no constitutional court, some other institution has the role of providing the most authoritative

    interpretation of the Constitution. The position of authoritative interpreting body can be based

    - depending on the country - on written rules, on customary law or on constitutional

    conventions.

     The Parliament’s constitutional committee (Perustuslakivaliokunta) is the most authoritative interpreting body of the Constitution (Perustuslaki) in Finland as in Norway the Supreme Court (Høyesterett) is the most authoritative interpreting body of the Grunnlov.

    Grammatical and historical arguments are not frequently used by the Høyesterett, while the

    Perustuslakivaliokunta regularly uses both grammatical and historical arguments. Systematic

    (including doctrinal) arguments are very important types of argument for both bodies. In the

    Perustuslakivaliokunta’s practice, the use of doctrinal arguments is perhaps even more

    explicit. The most characteristic type of argument in the Høyesterett’s argumentation is the teleological argument; the Perustuslakivaliokunta lays more stress on the juridical nature of the interpretation than the Høyesterett does.

     The Høyesterett and the Perustuslakivaliokunta have the same kind of function as the most authoritative interpreting body of the Constitution in their countries. As they are,

    however, different types of bodies with different basic tasks, it is clear that they may find

    different alternatives for solving problems concerning the interpretation of the Constitution.

Introduction

This article studies the authoritative interpretation of the Constitution in Finland and Norway.

    The method is a survey, especially from the perspective of argumentation. The topic is an

    interesting one because it has close connections to the use of the powers of the state. Thus,

    1 This article is based on my doctoral thesis Perustuslain auktoritatiivinen tulkinta (Authoritative Interpretation of the Constitution), Helsinki 2002.

one may ask who will determine how the Constitution is to be interpreted and with what

    arguments. First of all, however, some rather theoretical topics concerning interpretation are

    discussed. This is necessary for a better understanding of the subject. Next, the theoretical

    starting points are applied in turn to Finland and Norway. Some concrete examples are taken

    from both countries to demonstrate the kind of argumentation that was used in the

    authoritative interpretation of their Constitution.

    1. Authority and the interpretation of the Constitution

There are many kinds of authorities in everyday life. An authority could be, for example, a

    teacher, priest, doctor, one’s parents, etc. In the field of law, there are also different kinds of

    authorities. Authority can present itself in different situations. One such situation is the

    interpretation of the Constitution. But what exactly does one mean by the authoritative

    interpretation of the Constitution? An ‘authoritative interpretation’ is an interpretation that is

    relatively undisputed. Authority does not arise automatically. The development of authority

    may take a long time and authority may in time diminish. When the legal authority makes its

    decisions, argumentation is observed. As, for example, Aulis Aarnio has said, if an authority

    cannot state arguments for its decisions (as well as interpretations), it does not deserve its 2 authority.

     Many countries have a constitutional court that usually is the most authoritative

    interpreting body of the Constitution, as for example the Bundesverfassungsgericht in

    Germany. In Italy too there is a constitutional court, the Corte costituzionale. In those

    countries where there is no constitutional court, some other institution has the status of the

    most authoritative interpreting body of the Constitution. In France there is the Conseil

    constitutionnel, established in 1958 when the Constitution was reformed. The Conseil

    constitutionnel on many occasions pronounced some Bills to be in conflict with the 3Constitution. The position as an authoritative interpreter can be based - depending on the

    country - on a written rule, but also on customary law or constitutional conventions. For

    example, in the Constitution of Germany it is Article 93 where the powers of the

    Bundesverfassungsgericht are laid down and in the Constitution of Italy it is Article 134 that

    contains rules concerning the Corte costituzionale.

     Often the authoritative interpretation of the Constitution concerns particularly

    constitutional judicial review. Authoritative interpretation also takes place in situations where

    some state body seeks to determine its own competency on the basis of the Constitution.

    From the perspective of the theory of interpretation, it is interesting to see whether the

    interpretation of the Constitution differs from the interpretation of ordinary laws, i.e. laws

    hierarchically below the Constitution. In general, interpretation can be defined as an action

    where the purpose is to limit uncertainties in texts to be interpreted. It could also be defined

    as giving, specifying or confirming some content of meaning from a group of possible

    meanings. Typical interpretation methods are the grammatical, historical, systematic and

    teleological methods. There is also the so-called doctrinal method, which is typical especially

    2 See Aulis Aarnio, Laintulkinnan teoria, Helsinki 1989, p. 183. 3 See, e.g., Neville L. Brown & John S. Bell, French Administrative Law, 5th edn., Oxford 1998, pp. 17-24.

of courts and also of all other bodies that have abundant practice. There are also several types

    of standard that can be used in the interpretation process. To choose a method therefore

    involves choosing an argument. There can be many different kinds of argument, and the

    argumentation of the interpretation as a whole can be very complex. However, it is not

    always easy to see which method has been used in the interpretation. Of course, it is also

    possible that no method at all has been used and the decision is based only on the intention of

    the decision-maker.

2. Argumentation and types of argument

Hannu Tapani Klami has presented several functions for argumentation. These are the

    informative, control, persuasive and pedagogical functions. The purpose of the informative function is to announce why and how the final outcome is what it is. The purpose of the

    control function is to make validity and solidity of the decision possible, which is important,

    for example, when one wants to get a change of decision. The meaning of the persuasive function is to present an argumentation that can be approved as a basis for the decision. In

    this case, the argumentation may only be a ‘facade’. With facade argumentation one tries to

    formulate arguments so that the interpretation appears justifiable without a real interpretation

    resulting from the arguments. The pedagogical function means that the decision must be 4 These four functions make their own argued so that it is easy to understand and adopt.

    perspectives to argumentation. In this article, the classification of the functions is not,

    however, a central point. Accordingly, argumentation is conceived in its entirety. However, it

    is very useful to know what different dimensions argumentation can have, because these tell

    why argumentation is necessary.

     There can be many different types of argument. For example, Robert Alexy presents a

    list: there can be semantic, genetic, historical, comparative, systematic and teleological 5arguments. Aulis Aarnio offers a different kind of list: semantic, syntactic, logical, juridical 6and teleological arguments, as well as value, analogy and e contrario arguments. If we look closely at Alexy’s and Aarnio’s lists and their contents, it can be noticed that the differences

    between these lists are not so remarkable. This makes an important point: argumentation can

    be systematised in different ways and researchers can name the same types of argument

    differently. To provide more examples, one may look, for example, at the book Interpreting Statutes. In this book - which compares the interpretation of statutes in nine countries - the

    list of argument types is divided into four main groups: linguistic, systematic, teleological 7and intentional arguments. This list is, in general, similar neither to Alexy’s nor to Aarnio’s

    categorisation. Nevertheless, looking more closely, one can see that this listing is also very

    similar to the other two.

    4 See Hannu Tapani Klami, Finalistinen oikeusteoria, Turku 1979, p. 127. 5 Robert Alexy, A Theory of Legal Argumentation, Oxford 1989, pp. 235-244. 6 Aarnio 1989, pp. 217-247.

    7 See D. Neil MacCormick & Robert S. Summers, ‘Interpretation and Justification’, in: Interpreting Statutes: A Comparative Study, ed. D. Neil MacCormick & Robert S. Summers, Aldershot [etc.] 1991, pp. 512-

    515.

     However, the name of the argument type is not the most essential in this case. The

    most important thing is to clarify what type of argument could be used in the argumentation

    process substantively. It is very clear that similar types of argument are used in different

    countries. My own list of argument types comprises grammatical, historical, systematic,

    doctrinal, comparative and teleological arguments. I will very briefly explain what I mean by

    these, since there is not enough space here to explain them thoroughly. With grammatical argument I point to an argument that is based on the text that is interpreted. Historical arguments are arguments that can be found from the travaux préparatoires of the statutory law. In this case, one should be able to find the intent of the legislator. Systematic arguments can be found from the logical relations of a norm to other norms of the legal order. That kind

    of argument is, for example, analogical argument. The use of systematic arguments requires a

    view of the legal order as a system, which is probably not always an easy task. Doctrinal arguments are systematic arguments, actually, but I think that they can be separated for the

    sake of a better understanding of the subject. Doctrinal arguments can be found in a different

    kind of practice; this may be court practice, but also the practice of some other state body

    which has made decisions and interpretations, for example, for many decades. Comparative arguments are mainly arguments from foreign law, which can be a foreign legal order or legal

    system. It is also possible to use international treaties as comparative arguments. Teleological arguments can be based on different kinds of purposes. In the interpretation process this

    means that the interpretation should be made such that the aim of the norm will be realised.

    An interpretation should, of course, be made with an objective mind. The teleological method

    is the best way of arriving at an authoritative interpretation of the norm.

    3. Is interpretation of the Constitution something special in relation to other laws?

It is quite obvious that the Constitution is different from other laws, at least in those countries

    where it has lex superior status and amending it requires a qualified procedure. Characteristic

    of the Constitution is that its norms contain more principles and value statements than the

    norms in Acts that are hierarchically below the Constitution. This can be seen at least in the

    case of basic rights. Still, there is a great similarity at the level of interpretation between the

    norms of the Constitution and other statutes. The basic problem in both cases is that the norm

    content is unclear.

     There have been discussions in many countries about the question whether one should

    interpret the Constitution differently from other statutes. For example, in the United States it

    is common to conceive the interpretation of the Constitution as a special case in comparison 8 A central question has been whether the with statutes, which do not have the same status.

    Constitution is static or changeable. So-called originalists favour a static interpretation of the

    Constitution and so-called non-originalists are prepared to modify its interpretation when

    necessary. Typical of the originalists is their ‘original intent’ thinking, which means that

    interpretation is strongly rooted in the grammatical method. An example of non-originalist 9thinking is the ‘separate but equal’ doctrine.

8 Zenon Bankowski, D. Neil MacCormick, Roberts S. Summers & Jerzy Wróblewski, ‘On Method and

    Methodology’, in: MacCormick & Summers 1991, p. 11.

    9 See Michael J. Perry, The Constitution in the Courts: Law or Politics?, Oxford 1994, passim.

     The same question also arose in Germany, and there too two main lines can be

    discerned. One supports a traditional interpretation of the Constitution, while the other thinks

    that there should be dynamics in the interpretation. However, a synthesis of these two lines

    has been suggested, when in interpretation ‘classical’ interpretation methods (grammatical,

    historical) should be used, at least in principle. Different interpretation methods may be used 10 In Sweden, at least two travaux préparatoires can be found, where it has been together.

    suggested that the Constitution should be interpreted along the same principles as other 11statutes. That view, however, did not receive unanimous support in Sweden. Thomas Bull

    states that very little has been said about the interpretation of the Constitution in the Swedish 12constitutional debate.

     It is obviously possible to develop different types of method for the interpretation of

    the Constitution. Nonetheless, it is not always clear how much these methods differ from the

    ‘usual’ methods, i.e. methods that are used in the interpretation of ordinary laws. And, on the

    other hand, are those methods even necessary? There are, in general, many rules in the

    Constitution which do not need a ‘special method’ to be applied while being interpreted. Some rules do not cause any interpretation problems, because they are formulated

    unambiguously. An example of this kind of rule is a rule that regulates the number of

    representatives in Parliament. On the other hand, basic rights are a group of norms that

    usually need rather more interpretation than many other norms of the Constitution. This is

    because norms concerning basic rights are very important rules and those norms are seldom

    unambiguous. However, I do not wish to state that some norm of the Constitution would be

    less valuable than others because it does not cause any interpretation problems. However,

    attention is more often paid to only some norms of the Constitution.

     An important question concerns the objectivity of the interpretation of the

    Constitution. Is its interpretation a value-neutral activity or is there room for political

    opinions? If interpretations are made in Parliament, it is, I believe, obvious that

    interpretations can also contain strong political features. If one talks about, for example,

    freedom of speech, it is clear that the interpreters cannot ultimately avoid value opinions.

    Very often the courts are also in the situation where they must say something about the

    values of the Constitution. Of course, there are two sides in this matter: some interpreters

    want to say a lot about the values of the Constitution, whereas others want to be quiet and do

    not want to take an explicit standpoint concerning the case at hand. In the case of courts, this 13is called either judicial activism or judicial self-restraint.

     Barry Holmström has researched the political role of the courts in Great Britain,

    France and Germany. He noticed that the political role of the courts varies greatly when the

10 Winfried Brugger, ‘Legal Interpretation, Schools of Jurisprudence, and Anthropology: Some Remarks

    from a German Point of View’, The American Journal of Comparative Law, 42 (1994), 395-421.

    11 Statens Offentliga Utredningar (SOU) 1963: 17 p. 513 and SOU 1972: 15 p. 319.

    12 Thomas Bull, Mötes- och demonstrationsfriheten - En statsrättslig studie av motes- och

    demonstrationsfrihetens innehåll och gränser i Sverige, Tyskland och USA, Uppsala 1997, pp. 240-250. See also Joakim Nergelius, ‘Om grundlagstolkning, grundlagsvänlig lagtolkning och åsidosättande av grundlagsstridig

    lag’, Svensk Juristtidning 10 (1996), 835-870.

    13 See, e.g., Kenneth M. Holland (ed.), Judicial Activism in Comparative Perspective, Houndmills [etc.]

    1991.

question is about their role as political actors and authoritative political decision-makers who

    formulate the values of society. The importance of the courts has, according to Holmström,

    grown remarkably in last few decades and the activity of the courts also has connections to

    party politics. Holmström states that people accept the political role of the courts, because

    there has been ‘chronic impotence’ in the actions of parliaments to realise democracy. In

    Germany and France, so it became clear, political attitudes affect the choice of judges more 14 than their competence in the field of law does, although the latter is still an important factor.

    The picture Holmström paints is quite dark from the perspective of democracy. I do not know

    whether the situation is the same in Finland and Norway, but it seems likely that the political

    aspects of the courts could have some connections with the politics of the parties.

    4. Who are the authoritative interpreters of the Constitution in Finland?

    In Finland, there are some persons, such as the President of the Republic (Tasavallan presidentti), the Speaker of Parliament (Eduskunnan puhemies), the Parliamentary ombudsman (Eduskunnan oikeusasiamies) and the Attorney General of the Government

    (Valtioneuvoston oikeuskansleri) who can be called some kind of authoritative interpreter of

    the Constitution. Also, the highest courts - the Supreme Court (Korkein oikeus) and the Supreme Administrative Court (Korkein hallinto-oikeus) - should be mentioned.

    Traditionally, courts did not have a significant role in the interpretation of the Constitution,

    but this position changed after the reform of basic rights in 1995 and it is also expected that

    the new Section 106 of the Constitution - which includes a demand for the priority of the

    Constitution in the courts - may make the role of the courts more important. Still, there are

    many researchers who are very critical, and doubt whether Section 106 will have an 15important role at all.

     However, it can be stated that the Finnish Parliament’s constitutional committee (Perustuslakivaliokunta) is the most authoritative interpreting body of the Constitution in

    Finland. This is a fact that has also been expressed both in the travaux préparatoires of the new Constitution (Suomen Perustuslaki 731/1999) as well as in Finnish legal writing. In the

    draft of the new Perustuslaki (which came into force on March 1st, 2000), there is a provision

    that throws light on the interpretation of the Constitution. In the text it is stated that the

    Perustuslakivaliokunta has a central and an authoritative position in terms of the 16interpretation of the Perustuslaki. Further, Antero Jyränki, for example, writes that the

    Perustuslakivaliokunta is the most authoritative interpreting body of the Perustuslaki. However, Jyränki states that other state bodies are also capable of making interpretations,

    because the Perustuslaki gives different kinds of opportunity, for example to the courts to

14 Barry Holmström, Domstolar och demokrati - Den tredje statsmaktens politiska roll i England,

    Frankrike och Tyskland, Uppsala 1998, pp. 73, 417, 422, 429, passim.

    15 See, e.g., Jaakko Husa, ‘Lakien perustuslainmukaisuuden valvonta ja valtiosääntöuudistus’, Defensor Legis 1998, 183-215; Ilkka Saraviita, Perustuslaki 2000, Helsinki 2000, pp. 524-530; Martin Scheinin,

    Perustuslaki 2000 -ehdotus ja lakien perustuslainmukaisuuden jälkikontrolli: puoli askelta epämääräiseen

    suuntaan, Lakimies 1998, pp. 1123-1131.

    16 Hallituksen esitys Eduskunnalle uudeksi Suomen Hallitusmuodoksi (HE 1/1998 vp), p. 51.

    17 apply the Perustuslaki and use it as an argument.

     As mentioned above, the Perustuslakivaliokunta is one of the committees in the

    Finnish Parliament (Eduskunta), and members of the committee are Members of Parliament.

    According to the working order of Parliament (Eduskunnan työjärjestys 40/2000), there have to be at least seventeen members on the committee and it has the authority to make decisions

    when at least two out of three of the members are present. The Perustuslakivaliokunta can issue statements (Perustuslakivaliokunnan lausunto, PeVL) and produce reports

    (Perustuslakivaliokunnan mietintö, PeVM). First of all, these kinds of documents are given

    because of Government bills. Interpretations of the Perustuslaki are usually given as

    statements, whereas the reports usually contain new doctrines. It can be said that the

    statements of the Perustuslakivaliokunta are the most authoritative material in the 18interpretation of the Perustuslaki. The committee is a provisional body, which means that

    Parliament has no obligation de jure to accept the committee’s solutions, except where 19Section 42.2 of the Perustuslaki is concerned. Such a situation occurs when the Speaker of

    Parliament has refused to bring an issue to the vote, with the argument that it is against the

    Constitution or some other law. In such a case, Members of Parliament can ask for a

    statement from the Perustuslakivaliokunta, to investigate whether the Speaker acted correctly.

     However, solutions (as well as interpretations) of the committee have always been

    accepted de facto. There is no specific rule in the Perustuslaki concerning de facto binding statements, although in Section 74 it is stated that the duty of the Perustuslakivaliokunta is to give statements about matters that concern constitutionality and relations to international

    human rights treaties.

     It can be said that the Perustuslakivaliokunta is at least at some level a political body,

    but it still tries to be a judicial type of body. Various kinds of opinion can be found in Finnish 20legal writing concerning the Perustuslakivaliokunta’s political role. Nevertheless, it seems to be so that almost everyone is willing to approve the authoritative role of the

    Perustuslakivaliokunta as both judicial and political. Much depends on the case, because

    some matters quite obviously have such strong political aspects that they cannot be bypassed

    in the interpretation process.

     An important feature is that the Perustuslakivaliokunta regularly hears experts such as

    professors of law, civil servants, but also interest groups. Most of all, the

    Perustuslakivaliokunta hears experts on constitutional law. In practice, the de facto importance of these expert statements is noteworthy, and the Perustuslakivaliokunta usually

17 See Antero Jyränki, Uusi perustuslakimme, Turku 2000, pp. 43-44.

    18 See, e.g., Mikael Hidén, ‘Övervakningen av lagarnas grundlagsenlighet i Finland’, Jussens Venner 1998, pp. 66-77.

    19 Perustuslaki, Section 42.2: ‘The Speaker shall not refuse to include a matter on the agenda or a motion

    in a vote, unless he or she considers it to be contrary to the Constitution, another Act or a prior decision of the

    Parliament. In this event, the Speaker shall explain the reasons for the refusal. If the Parliament does not accept

    the decision of the Speaker, the matter is referred to the Constitutional Law Committee, which shall without

    delay rule whether the action of the Speaker has been correct.’ <http://www.om.fi/constitution/3340.htm> 20 See, e.g., Veli Merikoski, Kansa ja kansanvalta, Helsinki 1974, p. 211; Mikael Hidén, ‘… antaa perusteltu lausunto siitä, onko …’ Perustuslakivaliokunnan VJ 80 ?:n mukaisesti antaman mietinnön n:o 17/80

    vp herättämiä ensivaikutelmia, Lakimies 1980, pp. 586-618; and Paavo Nikula, Perusoikeudet ja lainsäädäntö, Lakimies 1999, pp. 878-886.

accepts the interpretation that the majority of experts recommended. Typical of the

    Perustuslakivaliokunta is the direct application of the statements given by the experts. For

    example, Ilkka Saraviita found that in many cases the committee writes almost exactly the 21 This fact has its effect in the case of same sentences that are found in the expert statements.

    argumentation: many of the arguments of the Perustuslakivaliokunta are, in fact, arguments of outside experts.

    5. Who are the authoritative interpreters of the Constitution in Norway?

In Norway too, some state bodies have authority in matters concerning the interpretation of

    the Constitution (Grunnlov, from the year 1814). In practice it is possible that many state

    bodies have to interpret the Grunnlov. More often this occurs in the courts, Parliament

    (Storting), the Government (Regjering) and the Parliament’s ombudsman (Stortingets sivilombudsman). Such a situation may also arise when a person has appealed against a court

    decision. Local government bodies may have to interpret the Grunnlov. Erik Boe mentions that a so-called fylkesman - local government body - can in practice make interpretations of 22the Grunnlov. Although there seem to be several state bodies that have made their own

    interpretations of the Grunnlov, most of them, however, do not seem to be very authoritative.

     In Norway, the Supreme Court (Høyesterett) is the most authoritative interpreting 23body of the Grunnlov. The central position of the Høyesterett as regards matters concerning 24the interpretation of the Grunnlov is based primarily on constitutional customary law. Thus, the Grunnlov does not state that the Høyesterett is the most authoritative interpreting body of

    the Constitution. Interpretations are made in concrete court decisions. As constitutional

    judicial review is an important form of interpretation of the Grunnlov, so in Norway the control is concrete and takes place afterwards.

     Members of the Høyesterett are professional judges who are chosen by the Ministry 25of Justice. There is no fixed number of judges on the Høyesterett, but usually their number 26does not exceed twenty. Cases to the Høyesterett come from the lower courts and these may

21 See Ilkka Saraviita, ‘Perustuslakivaliokunnan rooli perusoikeusjärjestelmän kehittämisessä’, in:

    Perusoikeudet Suomessa, ed. Liisa Nieminen, Helsinki 1999, pp. 29-71.

    22 Erik Boe, Innføring i juss, bind 2, Oslo 1993, p. 888. See also Erik Boe, ‘Lovers grunnlovsmessighet’, Jussens Venner 1998, pp. 4-36.

    23 See, e.g., Eivind Smith, Høyesterett og folkestyret, Oslo 1993, p. 20. Smith states that the Høyesterett is the highest institution in the constitutional area. This also concerns the interpretation of the Constitution. 24 Johs. Andenæs, Statsforfatningen i Norge, 8. utgave, Olso 1998, pp. 21, 288-289 and Boe 1998, p. 13.

    In Norway, many fundamental norms that are taken account of in legal practice are unwritten; this is called

    constitutional customary law.

    25 See Smith 1993, p. 332, who states that in Norway the nominations of Høyesterett judges are not such a political issue as, e.g., in the United States and in many European countries. See also Jan Skåre, ‘Betydningen

    av Høyesteretts sammensetning’, Lov og Rett 1999, 67-77, who researched the career backgrounds of the

    Høyesterett judges.

    26 See Svein Eng, ‘Precedent in Norway’, in: Interpreting Precedents: A Comparative Study, ed. D. Neil MacCormick & Robert S. Summers, Aldershot [etc.] 1997, pp. 189-217 and Eivind Smith, ‘Domstolskontroll

    concern different kinds of affairs, for example criminal cases or compensation cases. It 27should be noticed that, in fact, very few cases concern constitutional matters. When the Høyesterett makes a decision (a judgment), it includes the opinions of every judge. The

    decision is legally binding when it is made in the plenum, but the Høyesterett can change its 28interpretation doctrines whenever it deems it necessary.

     There has been a debate on the question whether the Høyesterett can be labelled a 29political body. Many Norwegian researchers have the opinion that the Høyesterett also has a political function, because both law and politics belong to the role which the Høyesterett has as a ‘creator of law’ or as a ‘negative legislator’. Thus, the Høyesterett actually has two 30separate roles: on the one hand it is self-restraining and on the other it is active. Nevertheless, the active side of the Høyesterett is so strong that in Norway it is thought that

    the Høyesterett is also some kind of political institution, a ‘third state power’. In other words,

    the Høyesterett is not simply a court because it has constitutional functions that are not 31available in other courts.

    6. Some examples of the argumentation of the Perustuslakivaliokunta and the Høyesterett

    My aim is not to analyse the whole practice of the Høyesterett and the Perustuslakivaliokunta that would somehow link matters of interpretation of the Constitution. That would be a huge

    task! Both the Høyesterett and the Perustuslakivaliokunta have an abundant practice, so there

    is a wealth of material that can be used as examples. The cases are to be explained from the

    perspective of argumentation. In this way, one may obtain a list of argument types that are in

    use in the Høyesterett and in the Perustuslakivaliokunta. My aim is also to present the

    features that are typical for the Høyesterett and the Perustuslakivaliokunta when interpreting the Constitution.

     As I mentioned above, different kinds of argument type exist, such as grammatical,

    historical, systematic, doctrinal, comparative and teleological arguments. The grammatical

    method and the use of grammatical arguments are not usual in the Høyesterett practice. In Norway - according to Per Helset and Bjørn Stordrange - the interpretation of the Grunnlov is less of a juridical nature than the interpretation of ordinary statutes; there are more political

    med lovgivning i Norge efter ca. 1970’, Tidsskrift for Rettsvitenskap 1990, 88-120. 27 See Smith 1993, pp. 204-206.

    28 See Eng 1997, pp. 198-200 and Torstein Eckhoff, Rettskildelære, 3. utgave, Oslo 1993, pp.151-154.

    See, on the other hand, Anne Robberstad, ‘Er Høyesteretts dommer bindende?’, Tidsskrift for Rettsvitenskap 2000, 504-524, who criticizes the bindingness of the Høyesterett’s judgments in general because this could have

    serious effects also in those cases where the judgment is ‘wrong’.

    29 About the debate, see, e.g., Per Helset & Bjørn Stordrange, Norsk statsforfatningsrett, Oslo 1998, p. 28. 30 See, e.g., Johs. Andenæs, ‘Høyesterett som politisk organ’, Lov og Rett 1965, pp. 22-43; Eckhoff 1993, p. 161; Smith 1993, pp. 258-259; Carl August Fleischer, Rettskilder, Oslo 1995, pp. 58, 152; Carsten Smith,

    Loven og livet, Oslo 1996, pp. 42-44 and Rune Slagstad, ‘Rettens ironi, åpningsforedrag ved Det 35. nordiske

    juristmøte’, Oslo 18.8.1999, p. 8.

    31 Andenæs 1998, p. 170.

elements in the interpretation of the Grunnlov. This is due to the fact that in the case of the

    Grunnlov the wording and the travaux préparatoires do not have a central position as is the 32 On the other hand, Carl August Fleischer remarked that there case with ordinary statutes.

    are several starting points for the interpretation of the Grunnlov. First of all, there is the age of the Grunnlov. The Grunnlov was adopted in the year 1814, and it is the oldest Constitution

    in Europe and the second oldest in the world after the Constitution of the United States. From

    this it may be clear that the travaux préparatoires of the Grunnlov no longer have relevance for its interpretation. Of course, amendments have been made after the year 1814; for

    example, Articles 110b and 110c came into force in the 1990s. However, these amendments

    are, after all, not so significant that they would affect in any notable way features of

    interpretation of the Grunnlov as a whole. Secondly, the language of the Grunnlov is not modern and it is also full of vague expressions (there is more than one way of interpreting a

    sentence) so that the use of the grammatical method would be difficult. Fleischer mentions

    other matters that may affect interpretation such as the lex superior, quality, political aims and qualified amendment procedure of the Grunnlov. Nonetheless, Fleischer does not think

    that the interpretation of the Grunnlov is fundamentally different from the interpretation of 33ordinary statutes.

     An example of using the travaux préparatoires argument can be found in Høyesterett case Rt. 1980 s. 52, which concerns the interpretation of Article 88 of the Grunnlov. In this case, the question was whether the Høyesterett was siste instans (the highest appeal court) in matters concerning labour disagreements. Amendments had been made to the Grunnlov in 1862, when Parliament decided that the Høyesterett was not necessarily the siste instans. However, in 1911 the Parliament’s constitutional committee issued a statement whereby the

    amendment from the year 1862 was found unnecessary. The Høyesterett used this as an argument when it decided that the Høyesterett would be the siste instans also in matters concerning labour disagreements. As can be noticed, the Høyesterett used rather old travaux préparatoires as an argument. Accordingly, this proves that the age of documents is not

    always an obstacle, at least not in constitutional law.

     In Finland, the Perustuslakivaliokunta used both grammatical and historical

    arguments. It is very likely that these types of argument are used also in situations where the

    Perustuslaki is new. As an example of the use of grammatical arguments, mention can be

    made of the Perustuslakivaliokunta’s statement concerning Finland’s membership of the

    European Union (PeVL 14/1994 vp). This was before the new Perustuslaki was adopted. Finland had negotiated an agreement with the EU, but that agreement needed a law from the

    Finnish Parliament to be put into effect. Thus, the question was in what order that law of

    enforcement had to be approved. There were two main alternatives. The first was an order

    based on Section 69 of the 1928 Valtiopäiväjärjestys, according to which the law could be 34enacted in a fast schedule, but still would need two out of three of the votes in Parliament. The second alternative was an order based on Article 67 of the Valtiopäiväjärjestys.

32 Helset & Stordrange 1998, pp. 68-70.

    33 See Carl August Fleischer, ‘Prinsipper for grunnlovsfortolkning’, Lov og Rett 1969, 433-452. 34 Before the new Perustuslaki (731/1999), there were four constitutional Acts which together formed the

    Constitution: Suomen Hallitusmuoto (94/1919), Valtiopäiväjärjestys (7/1928), Laki eduskunnan oikeudesta tarkastaa valtioneuvoston jäsenten ja oikeuskanslerin sekä eduskunnan oikeusasiamiehen virkatointen

    lainmukaisuutta (274/1922) and Laki valtakunnanoikeudesta (273/1922).

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