constitutional critical judging 1088 the ECJ in the case Åkerberg Fransson in February 2013 clearly show that the supreme courts no longer see it as their task to be loyal to the Swedish legislator against the European courts, but rather to be loyal to the protection of rights that follows from European law. In Finland, there was a solid historical foundation for constitutional critical judging after the years of constitutional struggle in the early 20th century. However, there was a break in this legal development by the constitution of 1919: judicial review of statutes was considered excluded by the constitution, and in controversial cases the constitution itself was bypassed through legislation made through the procedure for constitutional amendments. The constitutional change in 1919 also changed the judicial culture. However, the historical heritage up to 1919 fits well with the international trends just discussed, and is also expressed in recent case-law of the two Finnish supreme courts. As regards Finland, constitutional critical judging has begun to emerge in recent years and can – not least through two articles by Supreme Court president Curt Olsson in 1994 – be linked to history and be explained by the Europeanization of judicial culture. The development that we are now in the midst of has started in two steps: First, the supreme courts highlighted their responsibility for constitutional critical judging, especially in cases in Norway in 1976, in Denmark in 1999 and in Sweden in 2005. Then, it has become apparent that there is aneed for the development of principles: How should principles such as the prohibition of ex post facto legislation in the Norwegian constitution, or the freedom of expression or the right to private and family life according to the ECHR, more precisely be defined? What should be required for a national court to interpret the case law of the ECtHRor ECJ so that a previously accepted national legal regime is no longer possible to apply? This is a balancing act, which is difficult for the courts: On the one hand, clear principles are needed, which can make future decisions predictable for legislators and individuals. On the other hand, it is less suitable for courts to lock themselves into principles which then prove impossible to maintain. Swedish experiments with a requirement of obviousness for setting aside unconstitutional statutes and ordinances, and a requirement of ‘clear support’ in the case-law of the ECtHRfor setting aside a national legal regime have not proven successful: It is difficult to legitimize that a court says that there are many indications that a law is unconstitutional or contrary to the Where are we now?
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