AUTHORITATIVE INTERPRETATION OF THE CONSTITUTION A Comparison of Argumentation in Finland and Norway Veli-Pekka Hautamaki(University of Vaasa) Readers are reminded that this work is protected by copyright While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use Contents Introduction 1. Authority and the interpretation of the Constitution 2. Argumentation and types of argument 3. Is interpretation of the Constitution something special in relation to other laws? 4. Who are the authoritative interpreters of the Constitution in Finland? 5. Who are the authoritative interpreters of the Constitution in Norway? 6. Some examples of the argumentation of the Perustuslakivaliokunta and the Hoyesterett 7. Conclusions article studies the authoritative interpretation of the Constitution in Finland and Norway. The method is a survey, especially from the perspective of argumentation The topic is an interesting one because it has close connections to the use of the powers of the state. Thus, one may ask who will determine how the Constitution is to be interpreted and with what arguments. First of all, owever,some rather theoretical topics concerning interpretation are discussed. This is necessary for a better understanding of the subject. Next, the theoretical starting points are applied in turn to Finland and Norway. Some concrete examples are taken from both countries to demonstrate the kind of argumentation that was used in the authoritative interpretation of their Constitution 1. Authority and the interpretation of the Constitution There are many kinds of authorities in everyday life. An authority could be, for example, a teacher, priest, doctor, ones parents, etc. In the field of law, there are also different kinds of authorities Authority can present itself in different situations. One such situation is the interpretation of the Constitution. But what exactly does one mean by the authoritative interpretation of the
AUTHORITATIVE INTERPRETATION OF THE CONSTITUTION: A Comparison of Argumentation in Finland and Norway Veli-Pekka Hautamäki (University of Vaasa) Readers are reminded that this work is protected by copyright. While they are free to use the ideas expressed in it, they may not copy, distribute or publish the work or part of it, in any form, printed, electronic or otherwise, except for reasonable quoting, clearly indicating the source. Readers are permitted to make copies, electronically or printed, for personal and classroom use. Contents Introduction 1. Authority and the interpretation of the Constitution 2. Argumentation and types of argument 3. Is interpretation of the Constitution something special in relation to other laws? 4. Who are the authoritative interpreters of the Constitution in Finland? 5. Who are the authoritative interpreters of the Constitution in Norway? 6. Some examples of the argumentation of the Perustuslakivaliokunta and the Høyesterett 7. Conclusions Notes Introduction This article studies the authoritative interpretation of the Constitution in Finland and Norway. The method is a survey, especially from the perspective of argumentation. The topic is an interesting one because it has close connections to the use of the powers of the state. Thus, one may ask who will determine how the Constitution is to be interpreted and with what arguments. First of all, however, some rather theoretical topics concerning interpretation are discussed. This is necessary for a better understanding of the subject. Next, the theoretical starting points are applied in turn to Finland and Norway. Some concrete examples are taken from both countries to demonstrate the kind of argumentation that was used in the authoritative interpretation of their Constitution. 1. Authority and the interpretation of the Constitution There are many kinds of authorities in everyday life. An authority could be, for example, a teacher, priest, doctor, one's parents, etc. In the field of law, there are also different kinds of authorities. Authority can present itself in different situations. One such situation is the interpretation of the Constitution. But what exactly does one mean by the authoritative interpretation of the
Constitution? An 'authoritative interpretation is an interpretation that is relatively undisputed Authority does not arise automatically. The development of authority may take a long time and authority may in time diminish. When the legal authority makes its decisions, argumentation is observed. As, for example, Aulis Aarnio has said, if an authority cannot state arguments for its decisions(as well as interpretations), it does not deserve its authority. (2) Many countries have a constitutional court that usually is the most authoritative interpreting body of the Constitution, as for example the Bundesverfassungsgericht in Germany. In Italy too there is a constitutional court the Corte costituzionale In those countries where there is no constitutional court,some other institution has the status of the most authoritative interpreting body of the Constitution. In france there is the Conseil constitutionnel. established in 1958 when the Constitution was reformed The Conseil constitutionnel on many occasions pronounced some bills to be in conflict with the Constitution. (3)The position as an authoritative interpreter can be based depending on the country-on a written rule, but also on customary law or constitutional conventions. For example, in the Constitution of Germany it is Article 93 where the powers of the Bundesverfassungsgericht are laid down and in the Constitution of Italy it is Article 134 that the ce Often the authoritative interpretation of the Constitution concerns particularly constitutional judicial review. Authoritative interpretation also takes place in situations where some state body seeks to determine its own competency on the basis of the Constitution. From the perspective of the theory of interpretation, it is interesting to see whether the interpretation of the Constitution differs from the interpretation of ordinary laws, i.e. laws hierarchically below the Constitution. In general, interpretation can be defined as an action where the purpose is to limit uncertainties in texts to be interpreted. It could also be defined as giving specifying or confirming some content of eaning from a group of possible meanings. Typical interpretation methods are the grammatical, historical, systematic and teleological methods. There is al so the so-called doctrinal method which is typical especially of courts and also of all other bodies that have abundant practice. There are also several types of standard that can be used in the interpretation process. To choose a method therefore involves choosing an argument. There can be many different kinds of argument and the argumentation of the interpretation as a whole can be very complex However, it is not al ways easy to see which method has been used in the interpretation. Of course, it is also possible that no method at all has been used and the decision is based only on the intention of the 2. Argumentation and types of argument Hannu Tapani Klami has presented several functions for argumentation. These are the informative control, persuasive and pedagogical functions. The purpose of the informative function is to announce why and how the final outcome is what it is. The purpose of the control function is to hake validity and solidity of the decision possible, which is important, for example, when one wants to get a change of decision. The meaning of the persuasive function is to present an
Constitution? An 'authoritative interpretation' is an interpretation that is relatively undisputed. Authority does not arise automatically. The development of authority may take a long time and authority may in time diminish. When the legal authority makes its decisions, argumentation is observed. As, for example, Aulis Aarnio has said, if an authority cannot state arguments for its decisions (as well as interpretations), it does not deserve its authority.(2) Many countries have a constitutional court that usually is the most authoritative interpreting body of the Constitution, as for example the Bundesverfassungsgericht in Germany. In Italy too there is a constitutional court, the Corte costituzionale. In those countries where there is no constitutional court, some other institution has the status of the most authoritative interpreting body of the Constitution. In France there is the Conseil constitutionnel, established in 1958 when the Constitution was reformed. The Conseil constitutionnel on many occasions pronounced some Bills to be in conflict with the Constitution.(3) The position as an authoritative interpreter can be based - depending on the country - on a written rule, but also on customary law or constitutional conventions. For example, in the Constitution of Germany it is Article 93 where the powers of the Bundesverfassungsgericht are laid down and in the Constitution of Italy it is Article 134 that contains rules concerning the Corte costituzionale. Often the authoritative interpretation of the Constitution concerns particularly constitutional judicial review. Authoritative interpretation also takes place in situations where some state body seeks to determine its own competency on the basis of the Constitution. From the perspective of the theory of interpretation, it is interesting to see whether the interpretation of the Constitution differs from the interpretation of ordinary laws, i.e. laws hierarchically below the Constitution. In general, interpretation can be defined as an action where the purpose is to limit uncertainties in texts to be interpreted. It could also be defined as giving, specifying or confirming some content of meaning from a group of possible meanings. Typical interpretation methods are the grammatical, historical, systematic and teleological methods. There is also the so-called doctrinal method, which is typical especially of courts and also of all other bodies that have abundant practice. There are also several types of standard that can be used in the interpretation process. To choose a method therefore involves choosing an argument. There can be many different kinds of argument, and the argumentation of the interpretation as a whole can be very complex. However, it is not always easy to see which method has been used in the interpretation. Of course, it is also possible that no method at all has been used and the decision is based only on the intention of the decision-maker. 2. Argumentation and types of argument Hannu Tapani Klami has presented several functions for argumentation. These are the informative, control, persuasive and pedagogical functions. The purpose of the informative function is to announce why and how the final outcome is what it is. The purpose of the control function is to make validity and solidity of the decision possible, which is important, for example, when one wants to get a change of decision. The meaning of the persuasive function is to present an
argumentation that can be approved as a basis for the decision. In this case, the argumentation may only be a facade. With facade argumentation one tries to formulate arguments so that the interpretation appears justifiable without a real interpretation resulting from the arguments. The dagogical function means that the decision must be argued so that it is easy to understand and adopt. (4)These four functions make their own perspectives to argumentation. In this article, the classification of the functions is not however, a central point. Accordingly, argumentation is entirety. However, it is very useful to know what different dimensions argumentation can have, because these tell why argumentation is necessary There can be many different types of argument. For example, Robert Alexy presents a list: there can be semantic, genetic, historical, comparative, systematic and teleological arguments. (5)Aulis arnio offers a different kind of list: semantic, syntactic, logical, juridical and teleological arguments, as well as value, analogy and e contrario arguments (6)If we look closely at Alexy's and Aarnio's lists and their contents. it can be noticed that the differences between these lists are not so remarkable. This makes an important point: argumentation can be systematised in different d researchers can name the same types of argument differently. To provide more examples, ay look, for example, at the book Interpreting Statutes. In this book-which compares the retation of statutes in nine countries-the list of argument types is divided into four main groups: linguistic, systematic, teleological and intentional arguments (7) This list is, in general similar neither to Alexy's nor to Aarnio's categorisation. Nevertheless, looking more closely, one can see that this listing is also very similar to the other two However, the name of the argument type is not the most essential in this case. The most important thing is to clarify what type of argument could be used in the argumentation process substantively It is very clear that similar types of argument are used in different countries. My own list of argument types comprises grammatical, historical, systematic, doctrinal, comparative and teleological arguments. I will very briefly explain what I mean by these, since there is not enough space here to explain them thoroughly. With grammatical argument I point to an argument that is based on the text that is interpreted. Historical arguments are arguments that can be found from the travaux preparatoires of the statutory law. In this case, one should be able to find the intent of the egislator. Systematic arguments can be found from the logical relations of a norm to other norms of the legal order. That kind of argument is, for example, analogical argument. The use of systematic arguments requires a view of the legal order as a sy stem, which is probably not always an easy task. Doctrinal arguments are systematic arguments, actually, but I think that they can be separated for the sake of a better understanding of the subject. Doctrinal arguments can be found in a different kind of practice; this may be court practice, but also the practice of some other state body which has made decisions and interpretations, for example, for many decades. Comparative arguments are mainly arguments from foreign law, which can be a foreign legal order or legal system. It is also possible to use international treaties as comparative arguments. Teleological arguments can be based on different kinds of purposes. In the interpretation process this means that the interpretation should be made such that the aim of the norm will be realised. An interpretation should, of course, be made with an objective mind. The teleological method is the best way of arriving at an authoritative interpretation of the norm
argumentation that can be approved as a basis for the decision. In this case, the argumentation may only be a 'facade'. With facade argumentation one tries to formulate arguments so that the interpretation appears justifiable without a real interpretation resulting from the arguments. The pedagogical function means that the decision must be argued so that it is easy to understand and adopt.(4) These four functions make their own perspectives to argumentation. In this article, the classification of the functions is not, however, a central point. Accordingly, argumentation is conceived in its entirety. However, it is very useful to know what different dimensions argumentation can have, because these tell why argumentation is necessary. There can be many different types of argument. For example, Robert Alexy presents a list: there can be semantic, genetic, historical, comparative, systematic and teleological arguments.(5) Aulis Aarnio offers a different kind of list: semantic, syntactic, logical, juridical and teleological arguments, as well as value, analogy and e contrario arguments.(6) If we look closely at Alexy's and Aarnio's lists and their contents, it can be noticed that the differences between these lists are not so remarkable. This makes an important point: argumentation can be systematised in different ways and researchers can name the same types of argument differently. To provide more examples, one may look, for example, at the book Interpreting Statutes. In this book - which compares the interpretation of statutes in nine countries - the list of argument types is divided into four main groups: linguistic, systematic, teleological and intentional arguments.(7) This list is, in general, similar neither to Alexy's nor to Aarnio's categorisation. Nevertheless, looking more closely, one can see that this listing is also very similar to the other two. However, the name of the argument type is not the most essential in this case. The most important thing is to clarify what type of argument could be used in the argumentation process substantively. It is very clear that similar types of argument are used in different countries. My own list of argument types comprises grammatical, historical, systematic, doctrinal, comparative and teleological arguments. I will very briefly explain what I mean by these, since there is not enough space here to explain them thoroughly. With grammatical argument I point to an argument that is based on the text that is interpreted. Historical arguments are arguments that can be found from the travaux préparatoires of the statutory law. In this case, one should be able to find the intent of the legislator. Systematic arguments can be found from the logical relations of a norm to other norms of the legal order. That kind of argument is, for example, analogical argument. The use of systematic arguments requires a view of the legal order as a system, which is probably not always an easy task. Doctrinal arguments are systematic arguments, actually, but I think that they can be separated for the sake of a better understanding of the subject. Doctrinal arguments can be found in a different kind of practice; this may be court practice, but also the practice of some other state body which has made decisions and interpretations, for example, for many decades. Comparative arguments are mainly arguments from foreign law, which can be a foreign legal order or legal system. It is also possible to use international treaties as comparative arguments. Teleological arguments can be based on different kinds of purposes. In the interpretation process this means that the interpretation should be made such that the aim of the norm will be realised. An interpretation should, of course, be made with an objective mind. The teleological method is the best way of arriving at an authoritative interpretation of the norm
3. Is interpretation of the Constitution something special in relation to other laws? It is quite obvious that the Constitution is different from other laws, at least in those countries where it has lex superior status and amending it requires a qualified procedure. Characteristic of the Constitution is that its norms contain more principles and value statements than the norms in Acts that are hierarchically below the Constitution. This can be seen at least in the case of basic ights. Still, there is a great similarity at the level of interpretation between the norms of the Constitution and other statutes the basic problem in both cases is that the norm content is unclear There have been discussions in many countries about the question whether one should interpret the Constitution differently from other statutes. For example, in the United States it is common to conceive the interpretation of the Constitution as a special case in comparison with statutes, which do not have the same status. (8)A central question has been whether the Constitution is static or hangeable. So-called originalists favour a static interpretation of the Constitution and so-called non-originalists are prepared to modify its interpretation when necessary. Typical of the originalists is their ' original intent thinking, which means that interpretation is strongly rooted in the grammatical method. An example of non-originalist thinking is the 'separate but equal doctrine. (9) The same question also arose in Germany, and there too two main lines can be discerned. One supports a traditional interpretation of the Constitution, while the other thinks that there should be dynamics in the interpretation. However, a synthesis of these two lines has been suggested, when in interpretation'classical'interpretation methods(grammatical, historical) should be used, at least in principle. Different interpretation methods may be used together (10)In Sweden, at least two travaux preparatoires can be found, where it has been suggested that the Constitution should be interpreted along the same principles as other statutes (11) That view, however, did not receive unanimous support in Sweden. Thomas Bull states that very little has been said about the nterpretation of the Constitution in the Swedish constitutional debate. ( 12) It is obviously possible to develop different types of method for the interpretation of the Constitution. Nonetheless, it is not al ways clear how much these methods differ from the usual methods, i.e. methods that are used in the interpretation of ordinary laws. And, on the other hand are those methods even necessary? There are, in general, many rules in the Constitution which do not need aspecial method to be applied while being interpreted. Some rules do not cause any interpretation problems, because they are formulated unambiguously. An example of this kind of ule is a rule that regulates the number of representatives in Parliament. On the other hand, basic rights are a group of norms that usually need rather more interpretation than many other norms of the Constitution. This is because norms concerning basic rights are very important rules and those norms are seldom unambiguous. However. i do not wish to state that some norm of the Constitution would be less valuable than others because it does not cause any interpretation problems. However, attention is more often paid to only some norms of the Constitution
3. Is interpretation of the Constitution something special in relation to other laws? It is quite obvious that the Constitution is different from other laws, at least in those countries where it has lex superior status and amending it requires a qualified procedure. Characteristic of the Constitution is that its norms contain more principles and value statements than the norms in Acts that are hierarchically below the Constitution. This can be seen at least in the case of basic rights. Still, there is a great similarity at the level of interpretation between the norms of the Constitution and other statutes. The basic problem in both cases is that the norm content is unclear. There have been discussions in many countries about the question whether one should interpret the Constitution differently from other statutes. For example, in the United States it is common to conceive the interpretation of the Constitution as a special case in comparison with statutes, which do not have the same status.(8) A central question has been whether the Constitution is static or changeable. So-called originalists favour a static interpretation of the Constitution and so-called non-originalists are prepared to modify its interpretation when necessary. Typical of the originalists is their 'original intent' thinking, which means that interpretation is strongly rooted in the grammatical method. An example of non-originalist thinking is the 'separate but equal' doctrine.(9) The same question also arose in Germany, and there too two main lines can be discerned. One supports a traditional interpretation of the Constitution, while the other thinks that there should be dynamics in the interpretation. However, a synthesis of these two lines has been suggested, when in interpretation 'classical' interpretation methods (grammatical, historical) should be used, at least in principle. Different interpretation methods may be used together.(10) In Sweden, at least two travaux préparatoires can be found, where it has been suggested that the Constitution should be interpreted along the same principles as other statutes.(11) That view, however, did not receive unanimous support in Sweden. Thomas Bull states that very little has been said about the interpretation of the Constitution in the Swedish constitutional debate.(12) It is obviously possible to develop different types of method for the interpretation of the Constitution. Nonetheless, it is not always clear how much these methods differ from the 'usual' methods, i.e. methods that are used in the interpretation of ordinary laws. And, on the other hand, are those methods even necessary? There are, in general, many rules in the Constitution which do not need a 'special method' to be applied while being interpreted. Some rules do not cause any interpretation problems, because they are formulated unambiguously. An example of this kind of rule is a rule that regulates the number of representatives in Parliament. On the other hand, basic rights are a group of norms that usually need rather more interpretation than many other norms of the Constitution. This is because norms concerning basic rights are very important rules and those norms are seldom unambiguous. However, I do not wish to state that some norm of the Constitution would be less valuable than others because it does not cause any interpretation problems. However, attention is more often paid to only some norms of the Constitution
An important question concerns the objectivity of the interpretation of the Constitution Is its interpretation a value-neutral activity or is there room for political opinions? If interpretations are Parliament, it is, I believe, obvious that interpretations can also contain strong political If one talks about, for example, freedom of speech, it is clear that the interpreters cannot ultimately avoid value opinions. Very often the courts are also in the situation where they must say something about the values of the Constitution Of course there are two sides in this matter: some interpreters want to say a lot about the values of the Constitution, whereas others want to be quiet and do not want to take an explicit standpoint concerning the case at hand In the case of courts this is called either judicial activism or judicial self-restraint. (13) arry holmstrom has researched the political role of the courts in great Germany. He noticed that the political role of the courts varies greatly when the question is about their role as political actors and authoritative political decision-makers who formulate the values of society. The importance of the courts has, according to Holmstrom, grown remarkably in last few decades and the activity of the courts also has connections to party politics. Holmstrom states that people accept the political role of the courts, because there has been 'chronic impotence in the actions of parliaments to realise democracy. In Germany and France, so it became clear, political attitudes affect the choice of judges more than their competence in the field of law does, although the latter is still an important factor (14) The picture Holmstrom paints is quite dark from the erspective of democracy. I do not know whether the situation is the same in Finland and Norway, but it seems likely that the political aspects of the courts could have some connections with the politics of the parties 4. Who are the authoritative interpreters of the Constitution in Finland? In Finland, there are some persons, such as the President of the Republic (Tasavallan presidentti), the Speaker of Parliament(Eduskunnan puhemies), the Parliamentary ombudsman(Eduskunnan oikeusasiamies) and the Attorney General of the Government(Valtioneuvoston oikeuskansleri) who can be called some kind of authoritative interpreter of the Constitution. Also, the highest courts-the Supreme Court(Korkein oikeus)and the Supreme Administrative Court(Korkein hallinto-oikeus)-should be mentioned. Traditionally, courts did not have a significant role in the interpretation of the Constitution, but this position changed after the reform of basic rights in 1995 and it is also expected that the new Section 106 of the Constitution-which includes a demand for the priority of the Constitution in the courts- may make the role of the courts more important Still there are many researchers who are very critical, and doubt whether Section 106 will have an important role at all. (15) However. it can be stated that the Finnish parliament's constitutional committee Perustuslakivaliokunta) is the most authoritative interpreting body of the Constitution in Finland This is a fact that has also been expressed both in the travaux preparatoires of the new Constitution( Suomen Perustuslaki 731/1999)as well as in Finnish legal writing In the draft of the new Perustuslaki(which came into force on March lst, 2000), there is a provision that throws
An important question concerns the objectivity of the interpretation of the Constitution. Is its interpretation a value-neutral activity or is there room for political opinions? If interpretations are made in Parliament, it is, I believe, obvious that interpretations can also contain strong political features. If one talks about, for example, freedom of speech, it is clear that the interpreters cannot ultimately avoid value opinions. Very often the courts are also in the situation where they must say something about the values of the Constitution. Of course, there are two sides in this matter: some interpreters want to say a lot about the values of the Constitution, whereas others want to be quiet and do not want to take an explicit standpoint concerning the case at hand. In the case of courts, this is called either judicial activism or judicial self-restraint.(13) Barry Holmström has researched the political role of the courts in Great Britain, France and Germany. He noticed that the political role of the courts varies greatly when the question is about their role as political actors and authoritative political decision-makers who formulate the values of society. The importance of the courts has, according to Holmström, grown remarkably in last few decades and the activity of the courts also has connections to party politics. Holmström states that people accept the political role of the courts, because there has been 'chronic impotence' in the actions of parliaments to realise democracy. In Germany and France, so it became clear, political attitudes affect the choice of judges more than their competence in the field of law does, although the latter is still an important factor.(14) The picture Holmström paints is quite dark from the perspective of democracy. I do not know whether the situation is the same in Finland and Norway, but it seems likely that the political aspects of the courts could have some connections with the politics of the parties. 4. Who are the authoritative interpreters of the Constitution in Finland? In Finland, there are some persons, such as the President of the Republic (Tasavallan presidentti), the Speaker of Parliament (Eduskunnan puhemies), the Parliamentary ombudsman (Eduskunnan oikeusasiamies) and the Attorney General of the Government (Valtioneuvoston oikeuskansleri) who can be called some kind of authoritative interpreter of the Constitution. Also, the highest courts - the Supreme Court (Korkein oikeus) and the Supreme Administrative Court (Korkein hallinto-oikeus) - should be mentioned. Traditionally, courts did not have a significant role in the interpretation of the Constitution, but this position changed after the reform of basic rights in 1995 and it is also expected that the new Section 106 of the Constitution - which includes a demand for the priority of the Constitution in the courts - may make the role of the courts more important. Still, there are many researchers who are very critical, and doubt whether Section 106 will have an important role at all.(15) However, it can be stated that the Finnish Parliament's constitutional committee (Perustuslakivaliokunta) is the most authoritative interpreting body of the Constitution in Finland. This is a fact that has also been expressed both in the travaux préparatoires of the new Constitution (Suomen Perustuslaki 731/1999) as well as in Finnish legal writing. In the draft of the new Perustuslaki (which came into force on March 1st, 2000), there is a provision that throws