From voting to legal action

October 4, 2013 - 05:00
Article from University of Bergen

Lawsuits are set to gain in importance over the ballot box as internationalisation gathers pace.

New European laws challenge national legislation and democracy. (Photo: Colourbox)

Twenty percent of Norwegian laws and regulations are produced outside of our borders. This share is destined to rise substantially in the years to come.

A Research Group in Norway is working on a number of projects to identify what happens when national law must conform to outside forces, yet retain its legitimacy and remain consistent on the national level.

The group’s work deals with issues that are entering our everyday lives, as Norwegians find themselves moving abroad, shopping on weekend trips to foreign cities, and getting married to non-Norwegians.

Challenging the Constitution

Suddenly Norwegian citizens need to consider how your second spouse from Poland may be entitled to inherit you or whether the legal papers for your house in Spain are in order. This means that national law is playing catch-up in adapting to an ever more borderless European society.

Joint European law may make it easier to move beyond borders. But the rapid developments in the last few decades also present challenges. Øyrehagen Sunde believes that they primarily represent a constitutional challenge.

“We are in reality abandoning the separation of powers relating to the nation state,” says Professor Jørn Øyrehagen Sunde from the Faculty of Law in Bergen. 

“Norway’s Constitution gives the power of creating laws to the people as represented by parliament. This is challenged when 20 percent of legislation happens outside our borders.”

A weakening of democracy?

The law professor believes that reduced parliamentary control weakens democracy itself, at least if one thinks of democracy as being decided through the ballot. On the other hand, EU legislation tends to be more rights-oriented, giving powers to the individual and business. Each and every one of us can move to have Norwegian law overruled in the European Court.

“In reality this means a democracy more reliant on legal action than the ballot box,” Øyrehagen Sunde suggests.

In this, he believes, the EU and indirectly Norway increasingly become more American.

“Taken to its extreme, one could argue that Americans are more likely to sue than to vote. In the United States, litigation law has long overshadowed the right to vote as a tool of democracy.”

One explanation for this may be that the US federal system’s complexity makes it harder for the individual to relate to the system.

Power sharing principles
Jørn Øyrehagen Sunde. (Photo: UiB)

For democracy to work the citizens need an overview to understand proceedings. The traditional separation of powers into a legislature, an executive, and a judiciary makes it easy to point out where the power lies. EU law on the other hand, is very complicated and impenetrable.

“How are ordinary people supposed to understand the European system of justice, when not even the media, politicians, or high court judges understand how it works,” asks the law professor. “There is a danger that when people don’t understand how things work, they drop out and leave politics to the elites.”

Øyrehagen Sunde got engaged in international law research when he was a student in the 1990s. This was a time when the study of law was still geared almost exclusively towards the national legislature.

“Human rights issues were on the agenda amongst PhD students. But international law was certainly not part of the curriculum at the time,” he says, pointing out that students at the time were left ill-prepared for understanding the rapid development towards supranational laws and regulations.

The culture of law research

In 2005 all this changed, when University of Bergen changed the curriculum to make international law studies a central part of the education. According to Øyrehagen Sunde, this was not a moment too soon. This change had a tremendous impact on the law research environment in Bergen.

After having been pulled towards the social sciences’ methods and statistical approach in the post-war era, the law research community suddenly found itself drawn towards the humanities in the past decade.

In the past decade, law research has moved ever closer to cultural studies, in order to understand how law and regulations on the continent are adaptable to Norwegian conditions.

“We have almost become cultural professionals, as we have to translate, interpret, and reinterpret material that becomes Norwegian law. Also, we need to explain externally how this relates to and affects Norwegian law.”

Driven by technology

Yet there is no turning back, the law professor believes.

“International law is here to stay. If internationalisation of the law was simply a political question, then we could decide democratically if we wanted these changes or not,” he says before pointing out that things are not that simple.

“Internationalisation is a product of technology and communication. When individuals travel and shop more abroad, this requires an international framework and more international laws and regulations.”

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Translated by
Sverre Ole Drønen
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University of Bergen
The University of Bergen is located in Bergen, Norway. Six faculties cover most of the traditional university disciplines. Within the faculties are included 60 different specialised departments, centres and institutes. Read more

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