Rights-based Constitutionalism in Finland and the Development of Pluralist Constitutional Review

Abstract

Traditional characteristics of Nordic constitutionalism have been challenged increasingly, since the late 1980s, by tendencies toward rights-based constitutionalism. Reminiscent of several other theaters within the global constitutional arena, northern constitutionalism has also witnessed a clear shift from the legislative sovereignty paradigm to one in which legislative acts are increasingly subordinated to rights-based judicial review. However, it is doubtful whether the Nordic variants of new constitutionalism will lead to a juristocracy or adoption of full-fledged judicial review typical for Continental constitutional courts and their counterpart in the United States. Instead, various weaker and pluralistic forms of constitutional review mechanisms and doctrines, which rely on both legislative and judicial institutions and purport to provide effective protection both to rights and to democratic values, are not just more likely but, in fact, already have begun to emerge since the early 1990s. This article analyzes the normative tensions underlying the development of constitutional review in one of the Nordic countries, Finland. Aside from showing that a weak-form theory is applicable to the current mode of Finnish constitutionalism, it also submits that idiosyncrasies of the Finnish model of constitutional review can significantly contribute to the topical discussion about pluralist forms of constitutional review.