Konstitutionens väktare : Normprövningens roll i en alltmer fri- och rättighetsorienterad rättsstat

The formal rule of law is the foundation of the Swedish legal system. It is con-nected to- but independent of- fundamental human rights. It demands that every institute of the state, every public or private actor and every private person isbound by the law. The highest hierarchical law in a state governed by the rule oflaw is the written constitution. The second chapter in the Instrument of Govern-ment consists of a catalog of basic human rights. The protection of human rights in Sweden is- apart from EU-law- a dualistic system with both the second chapterin the Instrument of Government, and the European Convention on humanrights. According to the Instrument of Government, no law in Sweden can be made that contradicts the European Convention. While a double protection con-cerning human rights might seem like a positive thing, it also creates conflict.This is especially clear in the matter of judicial review. The judicial review by thecourts and administrative agencies as well as the judicial preview made by theCouncil on Legislation in Sweden acts as an instrument to make sure that a lawdoes not contradict the constitution. In modern law, the constitution gets in-creasingly relevant with the global development of constitutionally codified hu-man rights. This is a new phenomenon in Swedish law from a historical perspec-tive, and the constitutionally codified human rights has not had the same practicalmeaning as the rights codified in the European convention. As a result, the na-tional human rights have lived in the shadow of the convention. What the essay has shown with a comparative analysis of the Norwegian judicial review is thatthe modern judicial review in a state governed by the rule of law is closely relatedto human rights because of international conventions created after the secondworld war. The human rights that are developed in the convention is influencedby natural law, while the Swedish system is based on the formal meaning of therule of law, which does not value the content of the law but the system itself.Consequently, international human rights have been incorporated into a systemthat is not made for natural law. The Swedish and Norwegian system shows that there are some common factors to the definition of the rule of law. But the de-velopment of judicial review in both countries have differed. The common fac-tors are in general codified in the checklist created by the Venice commission,why there are some principles in the rule of law that is considered constitutionaljus cogens. By using the margin of appreciation in fulfilling the duties constituted in the European convention, the constitution can be relevant, dynamic, and su-perior to the convention, as the constitution should be. Nationally characterized human rights that is in harmony with the national legal framework creates a legalcertainty that the current application of human rights is lacking