In need of juristocracy? The silence of Denmark in the development of European legal norms

The Nordics, the EU and the Reluctance Towards Supranational Judicial Review

“…In the Nordic countries, judicial review has traditionally been regarded as being incompatible with majoritarian democracy and ‘government by the people’. It is broadly assumed that judicial review limits the power of the legislature by placing the protection of the basic rights of individuals before the rights of the majority (Scheinin, 2001; Rytter, 2001, p. 138; Rytter and Wind, forthcoming). For centuries, the Nordic countries together with most of the other European states regarded the power of courts and judges as highly problematic; even as incompatible with the rising democratic consciousness.…”

“…267 procedure has consequences – for instance for the protection of the EU rights of the citizenry; the fewer cases sent and tested, the less chance that citizens may enjoy the full advantages of their EU membership (Wind, 2009b; Martinsen, 2005). In addition to a culture of consensus dominating the state, its civil servants and its courts, the analysis above also suggests that the rights (and interests) of the state seem to stand above the rights of the citizen in the Nordic Welfare states (Føllesdal, 2002; Rytter and Wind, forthcoming).…”

“…This does not mean, however, that majoritarian democracies (including the Nordic democracies) do not have constitutions 28 referring to the balance of power principle and even some kind of court review. In actual practice, however, these countries have no tradition for the courts challenging or actively reviewing legislation in accordance with the constitution (Scheinin, 2001; Rytter, 2000; Rytter and Wind, forthcoming; Wind, 2009a). In constitutional democracies, on the other hand, judicial review is regarded as a fundamental feature of any true democracy.…”

“…Needless to say, in order for the EU legal system to function smoothly, it depends fundamentally on the willingness of the national courts to take part in this process by sending cases to the ECJ. While most political science scholarship on the issue has been dedicated to explaining why the lower national courts in particular have used the preliminary ruling procedure to challenge their own national legal hierarchy, little or no research has attempted to explain why some – the Nordic Member States in particular – have been hesitant to collaborate in this process (but see Wind et al ., 2009; Wind and Føllesdal, 2009; Rytter and Wind, forthcoming). In 2004, however, the Swedish government received a so‐called ‘opening letter’ from the European Commission stating that the level of preliminary references was unacceptably low.…”

Searching for a Reference: Using Automated Text Analysis to Study Judicial Compliance

“…Lastly, all obtained documents have been converted to UTF8 format, which, compared to .doc, does not have a structure and allows for smooth processing in the programme R. Special and lengthy attention was devoted to optimizing special characters, mostly typical for the Czech language. For the CC, our dataset encompasses 60,403 decisions 31 After obtaining the domestic datasets, we devoted similar attention to the ECtHR's case law. Similarly, we data scraped the HUDOC database 32 for all decisions and judgments delivered by the Strasbourg Court and its predecessor (European Commission for Human Rights), together with metadata identifying the title of the case (name of the party to the proceedings), date of issuance, ECHR body that issued the decision, subject area, result of the case (violation -non-violation), respective Convention rights, and adverse country.…”