constitutional critical judging 1078 a legal doctrine emerged in the 1830s: Frederik Stang discussed judicial review and believed that courts should intervene against obviously unconstitutional statutes. In Norway, there was a series of seven judgments by the Supreme Court handed down over the period from 1822 to 1866 which, in summary, protected established positions on the basis of non-retroactivity, protection of property rights and – where appropriate – the protection of state officials. In the other countries, it is relevant to ask whether that type of cases did not exist or whether protection of that type of rights did not exist. The answer is not easy to give. At first glance, the same type of cases also arose in Denmark in 1853, 1857 and 1860, but it is difficult to know whether the rights would have been protected, if the appellants had proven their cases. In a case of 1855 on the other hand, a court set aside an ordinance, because it could not be generally applicable according to the constitution. There was a discussion among judges in the Swedish lawyers’ society in 1855 on the basis of a hypothetical case where two statutes were contradictory. The judges were inclined to interpret the statutes so that they could coexist rather than to set one of them aside. A discussion in the Finnish lawyers’ society in 1865 was similar in this regard. My assessment is that there was a difference in degree rather than in kind between the countries in this period of time. There was not a general rejection of judicial review in Sweden, Denmark and Finland, but the difference between Norway on the one hand and Denmark, Sweden and Finland on the other was due to a combination of stricter protection of rights and freedoms in the Norwegian constitution, especially the prohibition of ex post facto laws, of a reform-minded government and of an understanding of the constitution as having a greater role as a limit on the power of the legislator. In the legal scientific discussions before the constitutional legal positivism (staatsrechtlicher Positivismus), two opposite lines can be identified: one which tried to find a control mechanism for the compliance with the constitution and one which attached greater importance to the view that the courts were not an organ of state in the same way as the other two. The first approach is the approach of lex superior which also existed in the United States, and the other pointed forward toward the German theory. The boundaries were not clear between the Nordic countries as to where the inspiration came from. Norway differed from the other countries in that a detailed discussion about Different routes of inspiration from foreign legal thinking
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