constitutional critical judging 1086 international or principled context. It was not internationally recognized rights that were important, but national legislation that was to be applied, in loyalty to the legislator. The process of understanding the constitutions as superior law had started in the 19th century, but the change came to a standstill and did not accelerate until the 1990s. In Denmark and Sweden, debates among legal scholars in connection to constitutional reforms have been important. The Dane Poul Andersen and the Swede Gustaf Petrén argued that judicial review was established in Denmark and Sweden respectively, whilst the Dane Alf Ross and the Swede Östen Undén were of the opposite position. Even though Ross and Undén were influential at the time, and Andersen and Petrén had a difficulty making an impact in this issue, the position of Andersen and Petrén must in retrospect be considered more legally and historically justified. Ross could argue that judicial review could be repealed by statutory law, and Undén that an obsolete possibility of dismissal of Supreme Court justices could be revived – seemingly unconcerned of the fact that such measures would fit less well with the principle of the rule of law. In Denmark, the debate in connection with a constitutional reform in the 1950s led to a confirmation in the preparatory works of the current legal status of judicial review but also to a statement that that status was unclear. In the slow Swedish process of constitutional reform in the 1960s and 1970s, judicial review was at first confirmed, but the inclination to a principle of the unity of the state rather than separation of powers meant that it was also limited: judicial review of the constitutionality of statutes could only take place in obvious cases. If the courts in the 1980s in Norway decided a number of constitutional questions, hesitation was a characteristic of Swedish and Danish courts. The Swedish scholar Håkan Strömberg could in 1988 conclude that the Supreme Court was harmless as a constitutional court, and even if the Supreme Administrative Court was somewhat bolder, it had not made any deeper impressions in the context either. In Denmark, there were a few examples of constitutional critical judging in economic issues. Cases concerning procedural guarantees were also beginning to occur at this time. If Håkan Strömberg in 1988 found that one could expect more of the supreme Swedish courts, the Danish scholar Bent Christensen in 1989 – with some regret – concluded that such a change was in the coming. The practice of constitutional critical judging, which developed in the 1990s and the 2000s, may, however, seek its historical legitimacy back to the 19th century. The third paragraph of the Danish constitution dates from
RkJQdWJsaXNoZXIy MjYyNDk=