constitutional critical judging 1084 documents on rights and freedoms. In the caseRt. 1976 p. 1, with inspiration from the United States, the Supreme Court re-established judicial review of legislation, now with an explicit reference to materially differentiated margins of review. In the 1990s and the 2000s, the Supreme Court has taken more and more steps towards reserving the final interpretation of the constitution for the judiciary. The Norwegian Supreme Court has, earlier than the Supreme Courts in the other Nordic countries, positioned itself on an international legal arena. In Norwegian doctrine, there has more than in the other Nordic countries existed openness towards natural law, or at least towards applying legal principles embedded in deep legal culture. As I have mentioned, during the 19th century, there were differences in degree but not in kind between Norway and the other Nordic countries: Tocqueville and Story were known in Sweden as in Norway, the ability of the judge to interpret the law in conformity to the constitution was accepted in Sweden, Denmark and Finland, just as there was occasionally in Norway a discussion about the judiciary not being fully equal to the other two organs of state. The reason why the same development as in Norway did not occur in the other countries is not that it could not occur. The important difference here is that only the Norwegian judges actually tried the constitutionality of statutes and thus set the example, e.g. in 1822, 1866 and 1890. However, a political agenda was attributed to T. H. Aschehoug in his advocacy of judicial review, and the Supreme Court case of 1890 was seen in that context. According to that view, Aschehoug gave a conservative response to the introduction of parliamentarianism, and the case-law from the period 1822-1866 was neglected. This whole debate, which began in the 1920s and then culminated in the 1960s and 1970s, could only later be resolved when it was discovered that the chronology was not correct: The older cases were there, and Aschehoug had written his text on an ealier stage than had been thought. The question then is, whether the Norwegian judges in 1940, in the 1960s and from 1976 really based their attitudes on historical facts? When the legitimacy of Aschehoug’s theory and the precedent of 1890 were contested, and they were supposed to lack their historical foundations, could the judges be understood as they were relying upon, e.g., the cases of 1822 and 1866, if they actually did not know them? The answer is that it was not about relying on precedents but about legal, or more precisely, judicial, culture. In the Norwegian judicial culture there must have been another ethos, an ethos of judicial protection of the constitution, than in the other Nordic countries
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