Livia Johannesson
Associate Senior Lecturer, School of Public Administration, University of Gothenburg
Researcher, Stockholm Centre for Organizational Research (SCORE), Stockholm University
A decade ago, law professor Ran Hirschl at University of Toronto described the Scandinavian constitutional tradition as an “unexplored paradise” because it featured “a well-balanced system of government based on embedded common sense and overall good governance, political and judicial restraint, relative social cohesiveness, a traditional commitment to social democracy, a well-developed welfare state combined with a vibrant market economy, and celebrated national pride alongside global good deeds”.[1] What puzzled Hirschl was that democracy, human development, and welfare could be achieved despite Scandinavia’s weak judicial review and almost nonexistent rights discourse. This account of Scandinavian exceptionalism is a good illustration of the Anglo-American bias in legal and political studies, and the utopian air which often follows from these descriptions of Scandinavian societies. However, things have changed in Scandinavia, which I will come back to later.
In his reading of Scandinavian exceptionalism, however, Professor Hirschl made an important observation that I think is worth exploring further: namely, that Scandinavia has been strangely unexplored in legal and political studies and, I would add, in socio-legal studies in general. Why is that?
I think part of the answer lies in the weak institutional links between law schools and political science departments in Scandinavia. In other parts of the world, law and political science have been core disciplines in advancing socio-legal research. In Scandinavia, cooperation between law schools and political science departments has rarely been institutionalized, and thus theoretical and empirical bridges between the two fields have been lacking. A testament to the neglect of courts in Scandinavian political science is that recent research handbooks on Scandinavian politics barely mention courts.[2] As a result, students of political science and law have long been taught under the assumption that courts in Scandinavia stand outside or above politics, and that politics never enters the courtroom.
In recent years, however, Scandinavian political scientists and legal scholars have found a renewed interest in the role of law and courts in politics. Equipped with social science theories and methods, new lines of research exploit the rich empirical opportunities offered by the Scandinavian setting and seek to explain and understand the changing roles of courts in Scandinavian democracies. For example, several comparative projects investigate the changing roles of the supreme courts in Scandinavia.[3] In addition, political scientists have examined the impact that European Union law and the European Convention on Human Rights have had on Scandinavian jurisprudence.[4] Scholars have also examined the special role of lay judges in Scandinavia.[5]
Others have analyzed Scandinavian courts as arenas of political contestation, exploring how and to what effect civil society groups – from climate activists to religious minorities to disability rights activists – use litigation strategies to pursue remedies, rights and reforms.[6] Scandinavia is also home to Icourts and Pluricourts, two centers of excellence on international courts and tribunals at the Universities of Copenhagen and Oslo, respectively, which have provided arenas for multidisciplinary research and training. In sum, research on law and courts in Scandinavia is currently experiencing a moment of unprecedented diversity and richness of initiatives.
Returning to Hirschl’s puzzlement about Scandinavia’s strong democracy, human development, and welfare, despite weak judicial review powers, I think it is fair to say that even if this utopian picture had some relevance ten years ago, radical changes have occurred since then that definitely call for a reality check on Scandinavia. Let me conclude with some recent changes in Sweden.
Hirschl rightly described that Scandinavian countries have put more emphasis on ex ante parliamentary preview than on ex post judicial review in the legislative process. However, this presupposes that the majority in parliament will respect and protect the principles of the rule of law when reviewing new legislation. What has happened since the last election in Sweden is a radical shift in the political agenda centered on repressive punishment of children, deportation of migrants and attacks on minorities as a response to the influx of migrants, gang violence, and the ambition to join NATO.[7] In addition, the Swedish parliament wants to limit the independence of public agencies and individual public servants, a principle that has been the cornerstone of effective public administration with high legitimacy in Sweden.[8] The question is how this new political agenda will influence democracy and the rule of law in Sweden in the longer run. I therefore encourage scholars to follow the development in the coming years, because it might soon be time to adjust the hitherto utopian picture of Scandinavian societies to a much more dystopian one when it comes to rule of law and minority rights.
Read more by this author
Hedlund, Daniel, and Livia Johannesson. 2023. “Editorial Introduction: The Role of Language and Communication in Asylum Procedures.” Journal of International Migration and Integration.
Johannesson, Livia. 2023. “Silence and Voice in Oral Hearings: Spatial, Temporal, and Relational Conditions for Communication in Asylum and Compulsory Care Hearings.” Social & Legal Studies 32(3): 399–419.
Johannesson, Livia. 2022. “Just Another Benefit? Administrative Judges’ Constructions of Sameness and Difference in Asylum Adjudications.” Citizenship Studies 26(7): 910–26.
Johannesson, Livia. 2022. “The Symbolic Life of Courts: How Judicial Language, Actions, and Objects Legitimize Credibility Assessments of Asylum Appeals.” Journal of International Migration and Integration.
About the author
Livia Johannesson is Associate Senior Lecturer at the School of Public Administration, University of Gothenburg, and researcher at Stockholm Centre for Organizational Research (SCORE), at Stockholm University. Her research covers courts’ roles in migration policies, communication in asylum determinations and compulsory care hearings, organization of public and legal accountability, and political ethnography.
[1] Hirschl, Ran. 2011. “The Nordic Counternarrative: Democracy, Human Development, and Judicial Review.” International Journal of Constitutional Law 9(2): 449–69, page 458.
[2] Nedergaard, Peter, and Anders Wivel. 2018. The Routledge Handbook of Scandinavian Politics. Routledge London; Pierre, Jon. 2015. The Oxford Handbook of Swedish Politics. Oxford University Press; Knutsen, Oddbjørn. 2017. The Nordic Models in Political Science: Challenged, but Still Viable? Fagbokforlaget.
[3] Ghavanini, Anna Wallerman, Gunnar Grendstad, and Johan Karlsson Schaffer. forthc. “Institutions That Define the Policy-Making Role of Courts: A Comparative Analysis of the Supreme Courts of Scandinavia.” International Journal of Constitutional Law; Grendstad, Gunnar, William R. Shaffer, and Eric N. Waltenburg. 2015. Policy Making in an Independent Judiciary: The Norwegian Supreme Court. Colchester: ECPR Press; Skiple, Jon Kåre, Henrik Litleré Bentsen, and Mark Jonathan McKenzie. 2021. “How Docket Control Shapes Judicial Behavior: A Comparative Analysis of the Norwegian and Danish Supreme Courts.” Journal of Law and Courts 9(1): 111–36.
[4] Leijon, Karin. 2021. “National Courts and Preliminary References: Supporting Legal Integration, Protecting National Autonomy or Balancing Conflicting Demands?” West European Politics 44(3): 510–30; Wind, Marlene. 2010. “The Nordics, the EU and the Reluctance Towards Supranational Judicial Review.” JCMS: Journal of Common Market Studies 48(4): 1039–63.
[5] Johansen, Louise Victoria. 2019. “Lay Participation in Danish Crime Trials: On the Interaction between Lay and Professional Judges during Deliberation.” Journal of Law and Society 46(4): 586–611; Anwar, Shamena, Patrick Bayer, and Randi Hjalmarsson. 2019. “Politics in the Courtroom: Political Ideology and Jury Decision Making.” Journal of the European Economic Association 17(3): 834–75; Martén, Linna. 2015. Political Bias in Court? Lay Judges and Asylum Appeals. Department of Economics, Uppsala University; Offit, Anna. 2018. “The Jury Is Out: An Ethnographic Study of Lay Participation in the Norwegian Legal System.” PoLAR: Political and Legal Anthropology Review 41(2): 231–46.
[6] Langford, Malcolm, Mikael Madsen, and Johan Karlsson Schaffer. 2019. The Scandinavian Rights Revolution: Courts, Rights and Legal Mobilization since the 1970s. Rochester, NY: Social Science Research Network. SSRN Scholarly Paper. https://papers.ssrn.com/abstract=3395834 (June 5, 2019); Lejeune, Aude. 2017. “Legal Mobilization within the Bureaucracy: Disability Rights and the Implementation of Antidiscrimination Law in Sweden.” Law & Policy 39(3): 237–58; Miller, Jeffrey. 2019. “Explaining Paradigm Shifts in Danish Anti-Discrimination Law.” Maastricht Journal of European and Comparative Law 26(4): 540–57; Alaattinoğlu, Daniela, and Ruth Rubio-Marín. 2019. “Redress for Involuntarily Sterilised Trans People in Sweden against Evolving Human Rights Standards: A Critical Appraisal.” Human Rights Law Review 19(4): 705–32.
[7] Civil Rights Defenders, ”Tidögranskningen: en rättighetsbaserad granskning av tidöavtalet” https://crd.org/sv/2022/10/24/vi-har-granskat-tidoavtalet/, 24 October, 2022.
[8] Sundström, Göran. ”Tidöavtalets förslag hotar själva statens legitimitet” https://www.etc.se/debatt/tidoeavtalets-foerslag-hotar-sjaelva-statens-legitimitet, ETC, August 2023;
S&LS Blog 