sören koch veral legislative committees4 strongly indicate that this is overdue.5 The opponents of the reform frequently attempt to legitimize the contemporary jury system by referring to a “longstanding tradition” or the special historical foundations of the “Norwegian legal culture.”6 Looking closely at the historical facts, it appears obvious that their argument can hardly be regarded as valid. What is not taken into account here are the conditions for and the context of a legal order at a specific moment in time and the changes this order was subjected to. Seen from a historical perspective, there never existed a comparable judiciary with just one pyramidal hierarchy of legal institutions with a strong participation of the people. In fact, it was introduced in the twentieth century. As the jury nevertheless is an institution one today will only find at the level of appeal courts, a focus on the historical developments especially related to these courts seems convenient for the course of my argumentation. lated provisions in Criminal Procedure Act differently. Not least this led to a political debate and the establishment of a legislative committee, which had the task to consider if the jury-system should be revised. See also the legislative committee’s evaluation in Norges offentlige utredninger (NOU) [Official Norwegian Reports] 2011: 13 particular p. 32 ff. 4 The majority of the committee recommended the abolition of the jury-system, cf. NOU 2011:13 p. 13 ff. 5 Lately the political situation seems to have changed gradually. Dag Michalsen, professor for legal history in Oslo, points out (Jurist – No. 5 (2015) p. 8 ff.) that the abolition of the jury seems more likely today than some years ago. In his view, the situation would be different if the jury had a foundation in the Norwegian constitution. This was in fact discussed in 1814. However, the jury was not codified (more or less as a consequence of the time pressure the legislative committee was under). Michalsen emphasizes in addition that the society has changed dramatically since 1887, when the jury was introduced, and that these changes have caused that “romantical notions about the people (folk) typical for the nineteenth century” no longer can be used to legitimize an institution that was established as a prestige-project of mainly one political party. 6 A minority of members in the above named legislative committee resisting a reform on this point stressed several times the high degree of participation of lay judges in Norwegian Courts during long periods of time between the Middle Ages and today and considers the legal institution as fundamental part of the legal culture of the country. Cf. NOU 2011:13 p. 134: “[…] there is still need for a court-order based on an independent participation of lay judges.” At the same time, they stress that the participation of lay judges will lead to the most “correct” decisions and will strengthen the people’s trust in the courts, thus contributing to safeguard the democratic control over the judiciary. Furthermore, this fraction argues that legal certainty and predictability may have to give way for the above-mentioned values, and that reforms frequently were recommended by professional lawyers only. 281
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