RS 29

realm rather than a region.32 However, even in the Code of 1274 courts were obliged to set aside a law if it conflicted with the fairness God wanted among men.33 This right was taken away in 1604, but has still been exercised openly: Norwegian courts have the right to make law by passing precedent, which also dates to 1274. Supreme Court precedent is still a source of law in Norwegian law, and the Supreme Court’s practice constitutes law, including in constitutional matters.34 Predictability is the prevailing idea of justice in Norwegian law; however, courts and other appliers of law are quick to set it aside when fairness will otherwise suffer. This too can be traced back to the Code of 1274, but it is still part of Norwegian law, where courts on rare occasions when much is at stake choose to set legislated law and Supreme Court precedent aside if it conflicts with fairness.35 Judicial review is hence part of a larger picture. A strict deductive method, based on a legal system of legal principles and legislated law, was rejected in Danish–Norwegian law in the eighteenth century, and in Norwegian law in the nineteenth century. A method of differentiating precedent was never adopted. This gives the courts leeway to apply system and fairness arguments to harmonize the different legal arguments. The fact that system and fairness arguments are also a source of law in their own right means that fairness has a reasonably strong position in Norwegian law.36 Judicial review, when appealing to fairness, thus appears legitimate. part ii • legal cultures • jørn øyrehagen sunde 32 Armin Wolf, Gesetzgebung in Europa 1100–1500: Zur Entshehung der Territorialstaaten(Munich: Beck, 1996). 33 Jørn Øyrehagen Sunde, ‘Above the Law: Norwegian Constitutionalism and the Code of 1274’, in id. (ed.), Constitutionalism Before 1789 (Oslo: Pax, 2014), 175–80. 34 Ibid. 55–58. 35 Ibid. 58–59. 36 Ibid. 62–65. 134 Idea of justice Legal method