1 Introduction. Jurist- og Økonomforbundets Forlag RETFÆRD ÅRGANG NR. 1/144 17

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1 RETFÆRD ÅRGANG NR. 1/ The permissibility and (conditional) recommendability of contra legem interpretations in Norwegian law AF INGVILL HELLAND, POSTDOCTORAL FELLOW, UNIVERSITY OF BERGEN, FACULTY OF LAW Abstract: To interpret an Act of Parliament contra legem means that the outcome of interpretation is a legal rule directly contradicting the natural understanding of the wording. If this is in keeping with the will of the legislator, or necessary in order to resolve a conflict with another legal rule, the outcome is relatively unproblematic. However, an interpretation contra legem which is also contrary to the will of the legislator raises concerns both with regard to democracy, legal certainty and the separation of powers. Nevertheless, Norwegian legal method allows for such an outcome of interpretation in exceptional cases, provided the justification is sufficiently strong. Arguments based on fundamental values of the Norwegian legal system, or the need for harmony within the legal system, are most likely to offer sufficient justification. Taking into account certain unique characteristics of the Norwegian legal system, such as the basis for legitimacy, the traditional legislative technique and the mechanisms for constructing predictability, the author argues that Norwegian law should continue to accept such interpretations Keywords English: interpretation, contra legem, separation of powers, courts, predictability, justice, legal values, legitimacy Keywords Norwegian: lovtolkning, lovgivervilje, maktfordeling, domstoler, forutberegnelighet, rettferdighet, rettens legitimitet 1 Introduction Law is made up of legal rules. In Norwegian law, the phrase»legal rule«(rettsregel) describes the outcome of an interpretation, rather than the starting point. 1 In other words, a legal rule cannot be found by, for example, reading the text of an Act of Parliament, but only by interpreting the text. The starting point of interpretation is the natural understanding of the wording of the Act. As a number of other factors must also be ta- 1 See Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed., Bergen, Universitetsforlaget, p. 29,Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 30. In English, see Helland, I (2012): Rulings of the European Court of Human Rights as a legal argument a comparison between German and Norwegian law, Bergen, University of Bergen, p. 348; German, see Helland, I. & Koch, S. (2013) Einfürung in the norwegische juristische Methodenlehre. Zeitschrift für Europäisches Privatrecht 03/2013, p Jurist- og Økonomforbundets Forlag

2 18 RETFÆRD ÅRGANG NR. 1/144 ken into account, however, the outcome of interpretation may be more or less in keeping with the wording. 2 An Act may be interpreted extensively or restrictively, it may be applied per analogy, or interpreted antithetically (argumentum a contrario). The phrase»contra legem«is used in reference to legislation-based legal rules, and describes the situation where the legal rule is»against the legal text«. In other words, an»interpretation contra legem«describes the situation when the outcome of interpretation deviates from that which followed from an initial reading of the Act. 3 This may be either because the legal rule dictates that the Act should be applied to a situation which apparently did not fall under its scope according to the wording, or that it should not be applied to a situation which apparently did fall under its scope. This outcome can be problematic for several reasons, for example because of the democratic deficit of a solution which contradicts the will of the legislator and in terms of separation of powers. In addition, it may produce unpredictable results and thus damage the general legal certainty in a legal system. Depending on the circumstances, the results may also be perceived as unjust. It is therefore not obvious that a legal system should accept such interpretations of its legislation. In Germany and Austria, for example, the wording of an Act is considered a limit to its interpretation, effectively prohibiting interpretations which directly contradict it. 4 As will be demonstrated below, the prevailing methodological approach in Norway on the other hand, does in principle allow for contra legem interpretations of Acts of Parliament. Space does not allow for a complete and detailed analysis of the extent to which this is accepted. In the following, I will therefore outline the circumstances under which the courts may be called upon to consider a contra legem interpretation of Acts of Parliament, before presenting some examples to illustrate the types of justifications which may render such outcomes of interpretation permissible and legitimate. 2 See, illustratingly, Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed., Bergen, Universitetsforlaget, p. 231 ff. See also for example Andenæs, M.H. (2009): Rettskildelære, 2 nd ed., Oslo, p. 40 ff.; Monsen, E. (2012): Innføring i juridisk metode og oppgaveteknikk, Bergen, Cappelen Damm, p. 116 ff. 3 See Franklin, C. (2012) Om innholdet i og rekkevidden av det EØS-rettslige prinsippet om direktivkonform fortolkning. Jussens Venner 05/2012, p. 269 with further references. 4 Larenz, K. & Canaris, C.-W. (1995): Methodenlehre der Rechtswissenschaft, 3rd ed., München, Springer Verlag, p. 143; Bydlinski, F. (1982): Juristische Methodenlehre und Rechtsbegriff, 1 st ed., Wien, Springer Verlag p Both countries, however, permit restrictive interpretation contrary to the wording in cases where this is in keeping with the (objective or subjective) will of the legislator so-called teleologische Reduktion. Larenz, K. & Canaris, C.-W. (1995): Methodenlehre der Rechtswissenschaft, 3rd ed., München, Springer Verlag, p. 210 ff.; Bydlinski, F. (1982): Juristische Methodenlehre und Rechtsbegriff, 1 st ed., Wien, Springer Verlag p. 496 ff. The key difference between interpretation contra legem and the teleologische Reduktion is the fact that the latter has a democratic basis and is therefore not considered a problem with regard to the separation of powers and the constitutional system of checks and balances.

3 RETFÆRD ÅRGANG NR. 1/ Naturally, the question of whether and to what extent a piece of legislation may be interpreted contra legem may arise in relation to all forms of written law either the Constitution, ordinary Acts of Parliament or administrative regulations. The present paper, however, will focus on contra legem interpretations of Acts of Parliament, that is, ordinary legislation adopted by the Parliament (in Norwegian, lov). Particular issues arising from the interpretation of regulations passed by the administration according to delegated powers (forskrifter) are not discussed. The interpretation of the Constitution, which is not wholly identical to the interpretation of Acts of Parliament, and in some respects raises different (and potentially more severe) concerns, will not be dealt with in this context. Having illustrated the types of situations which may lead to a contra legem interpretation of an Act of Parliament, I will then discuss whether this outcome should be accepted given the aims of the legal system and the current legal context. 2 Starting point: Norwegian principles of legal argumentation allow for contra legem interpretations of Acts of Parliament According to Norwegian principles of legal argumentation, interpretation is essentially a balancing exercise. 5 Starting with a primary legal basis in this case, the Act the interpreter weighs different factors of interpretation against each other in order to determine what the legal rule is. The wording is only one of several factors in this process, and as there is no formal hierarchical relationship between them, 6 it stands to reason that the wording may occasionally have to give way before other, more convincing arguments. 7 This is particularly clear when two legal rules collide and one has to give way before the other, but these are not the only circumstances under which the wording may have to give way. That Norwegian theory of legal argumentation in principle permits such an outcome is clear. However, such interpretations are of course not accepted unconditionally, 8 and the frequency, types of accepted justifications 5 For illustration, see on the harmonisation of interpretative factors Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 333 ff.; Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 224 ff. 6 See for example Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p See for example Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 27 f.; Boe, E. M. (2012): Grunnleggende juridisk metode, 3 rd ed., Oslo, Universitetsforlaget, p Cf. also Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag, p. 419 f. Jurist- og Økonomforbundets Forlag

4 20 RETFÆRD ÅRGANG NR. 1/144 and the degree of contradiction clearly influence the desirability of the arrangement and the problems it may cause. The question, therefore, is under which circumstances this may be justifiable according to the prevailing Norwegian legal method. This will be decisive for the desirability of such legal rules. First, however, the topic must be defined more closely. 3 Outlining the topic 3.1»Contra legem«the expression»contra legem«is seldom used in Norwegian legal argumentation. 9 The concept is usually discussed under the heading»tolke inn et unntak«10 to establish an exception through interpretation or»innskrenkende tolkning«11 restrictive interpretation. This covers a wide variety of situations where the legal rule is somehow not in keeping with the natural understanding of the wording, and encompasses far more than contra legem interpretations. Norwegian legal theory does not exert itself to distinguish between contra legem interpretations on the one hand, and restrictive interpretations or the establishment of an exception through interpretation on the other. As the few instances in which the Supreme Court has interpreted an Act contra legem did not seem to have caused any particular problems, there has been little reason to invest time and energy into researching a mostly theoretical issue. However, as will be demonstrated below, the Norwegian approach to contra legem interpretation so far seems closely linked to Norwegian legal history and legal culture. In today s rapidly changing world with a growing influx of foreign impulses and an increasing degree of professional specialisation characterising practically all aspects of society, it is not unlikely that conditions may change in the future to the extent that contra legem interpretations become problematic both for the maintenance of predictability and the achievement of just results in conflict resolutions. 9 Authors of textbooks on legal argumentation do not use the phrase. A search on the articles database Idunn yielded only two articles which at all mention the term: Franklin, C. (2012) Om innholdet i og rekkevidden av det EØS-rettslige prinsippet om direktivkonform fortolkning. Jussens Venner 05/2012 and Suominen, A. & Kvam, B. (2009) Skjær i sjøen for Norges strafferettslige samarbeid med EU, Lov og Rett 08/2009. A search of Supreme Court judgements on Lovdata revealed that the expression is not used by the Supreme Court. 10 See for example Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 235 with reference to p. 149 f. 11 See for example Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 235; Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p Norwegian authors generally do not separate between restrictive interpretation and interpretation contra legem.

5 RETFÆRD ÅRGANG NR. 1/ »Contra legem«, but in keeping with the will of the legislator When interpreting Acts of Parliament, Norwegian law places particular weight on the subjective will of the legislator as expressed in the preparatory works. This is reflected in the legislative technique in the sense that the legislator routinely explains their motives for introducing new legislation, and gives guidelines regarding how the Act, in their subjective opinion, should be interpreted. The preparatory works are written by either a panel of experts or persons in the state administration, but are dealt with in detail by the relevant committee at the Parliament, Stortinget, and are therefore generally considered an expression of the subjective will of the legislator. 12 The objective will of the legislator, or the purpose (formål) of an Act, may also be of interest to interpretation, especially where the subjective will of the legislator is unclear or where the objective will of the legislator has been made evident by a specific clause stating the purpose of the Act. In the absence of an explicit clause, the purpose of the Act may be deduced from the substantive provision itself, the Act of which it is a part of and the circumstances surrounding its adoption 13 was it, for example, motivated by a specific incident or the occurrence of a specific problem? Technically, it is possible to arrive at an interpretation which contradicts the wording of an Act, but not the (subjective or objective) will of the legislator. Occasionally, the legislator will adopt an Act whose wording exceeds the limits of the intended legal rule. There may be several reasons for this, but most important is perhaps the desire to prevent circumvention. By creating a»catch-all«clause, the legislator can ensure that all possible variations of undesirable behavior are encompassed. The problem that such provisions are liable to encompass also types of behavior which are considered fully acceptable may, for example, be resolved by giving guidelines for interpretation in the preparatory works. This will ensure that the wording is interpreted restrictively Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 240 ff. See also Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 71. As pointed out in both texts, the notion that»the legislator«is one entity with one»will«is problematic for several reasons, but for the purposes of this article, it is sufficient to note that explicit statements in the preparatory works are considered as at least condoned by the legislator, and they are therefore both relevant for legal argumentation and important factors of interpretation. 13 Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p The Derros judgement, Rt p. 417, may serve as illustration. A tax payer living in Oslo wanted to deduct from his income the money he sent to Paris to support his parents who were living there. The wording of the City Tax Act (byskatteloven 38e) seemed to allow this. The Supreme Court nevertheless agreed with the city tax authorities, who had refused the deduction, because it followed from the preparatory works that the relevant provision was not supposed to encompass this type of financial support. Jurist- og Økonomforbundets Forlag

6 22 RETFÆRD ÅRGANG NR. 1/144 From time to time it also happens that the wording by accident goes further than the legislator had foreseen the legislator simply did not notice the problem when adopting the Act, but it is evident from the preparatory works that the present problem was not what the legislator had in mind when regulating. The will of the legislator as regards the accidentally encompassed situations must then be deduced from other sources, and it may turn out that the legislator did not wish to apply the rule to those cases. 15 In cases such as these, an outcome of interpretation which contradicts the wording still has a democratic basis in so far as it coincides with the will of the legislator. Consequently, it raises no particular problems with regard to the separation of powers and the system of constitutional checks and balances. Therefore, even countries which in principle prohibit interpretations contra legem tend to accept restrictive interpretations in these cases so-called teleologische Reduktion. 16 From a Norwegian point of view, this separation may seem somewhat artificial, as democratic legitimacy is not the only recognised basis of legitimacy for the law. 17 Interpretations which go against the natural understanding of the wording may cause problems with regard to predictability or justice, regardless of whether they correspond to the will of the legislator or not. 18 However, the lack of a democratic basis means that contra legem interpretations which are also contrary to the will of the legislator as expressed in the preparatory works may pose a more severe problem in relation to the constitutional system of checks and balances also in Norway. 19 In the following, I will therefore adopt the 15 This was the case in the Kyrre Grepp judgement (Rt p. 41). An Act delegated, according to its wording, the unconditional power to prohibit through administrative regulation export and import of goods and items of every kind. In keeping with a regulation prohibiting the import of printed materials, the customs authorities confiscated various communistic propagandas. The Supreme Court found that despite its wording, the Act did not delegate the power to establish import restrictions of printed materials motivated by their undesirable political content rather than their material qualities. 16 See fn Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 449 f. and also 183 ff.; see chapter 0 below. 18 Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag., p. 458 ff., discusses the problems that may arise when the preparatory works indicate a solution which is to some extent in conflict with the natural understanding of the legal text. 19 Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag, p. 448 is of the opinion that»setting aside«the wording of an Act that is, interpreting it contra legem is considerably less problematic in cases where the will of the legislator has not been clearly stated in the preparatory works, or where the will of the legislator favours the contra legem interpretation. Based on his extensive analysis of the Supreme Court s reliance on preparatory works in their legal argumentation, he also postulates that the Supreme Court generally prefers to follow the will of the legislator as stated in the preparatory works rather than the wording of the Act»for its own sake.«this indicates that also the Supreme Court separates be-

7 RETFÆRD ÅRGANG NR. 1/ same division and focus on interpretations»contra legem«in the continental sense, namely those which are also contrary to the will of the legislator. 3.3»Interpretation«In this context, the term»interpretation«calls for some clarification, as this may be understood both in a narrow and in a wider sense. In a narrow sense, the term describes the process of deducing an argument from the wording of the legal text. A»contra legem«outcome of interpretation may in this case have to be considered because the principles of legal argumentation indicate that more weight must be given to other relevant factors for interpretation, which favour the opposite solution from that indicated by the wording. In a wider sense, however,»interpretation«may also include the harmonisation of conflicting legal rules. In this case, the outcome of»interpretation«may be contra legem (for one of the legal rules, at least) where two legal rules collide, because the principles of collision between legal rules dictate that one of them will be applied and the other not. In a sense, you could say that the one which is not being applied is therefore likewise»interpreted«contra legem. Not all Norwegian authors separate strictly between these situations. 20 There is, however, an essential difference between them which, in the opinion of the present author, requires them to be dealt with separately. All complex legal systems have to deal with the fact that legal rules occasionally contradict each other in the sense that they cannot all be applied at the same time. As predictability and legal certainty nevertheless must be maintained, principles and guidelines have been established for the resolution of such conflicts. In Norwegian law, these conflicts are primarily resolved by application of the lex principles: lex superior derogat legi inferiori, lex posterior derogat legi priori and lex specialis derogat legi generali. 21 The outcome of a conflict will necessarily be that the Act which has to give way is, in a sense, interpreted contra legem in other words, it is not applied to a case for tween contra legem interpretations in keeping with the will of the legislator and other motivations, as it finds the first category less problematic. 20 Knut Bergo, for example (Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag), deals jointly with situations where one primary legal basis is being interpreted in a sense which contradicts the natural understanding of the wording, and situations where one legal rule is not applied as a consequence of a conflict with another rule based on a different primary legal basis (p. 392 ff.). 21 See for example Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p Norwegian law also contains two exceptions from these principles in the form of precedence clauses adopted by the legislator: 2 of the EEA Act and 3 of the Human Rights Act ensure that Acts of Parliament incorporating EU Directives as well as a number of Human Rights Conventions are given precedence over other ordinary legislation in case of a conflict. Jurist- og Økonomforbundets Forlag

8 24 RETFÆRD ÅRGANG NR. 1/144 which it seemed to have been intended. However, this outcome is necessary as it is logically impossible to apply both legal rules at the same time. The resolution of such conflicts through application of the lex-principles and the precedence clauses, firstly, does not disturb fundamental values of the legal system predictability and legal certainty is ensured. Secondly, they generally produce solutions which are in keeping with the will of the legislator if not expressly so, then at least based on an objective interpretation of the Act which takes precedence. Consequently, there is hardly any democratic deficit and the separation of powers is maintained. Although occasionally unfortunate and at times potentially problematic, this form of»contra legem interpretation«is at the same time indispensable and seemingly well-known in most jurisdictions. Its existence in itself is uncontroversial. In the following, the article will therefore not deal with the harmonisation of conflicting legal rules, but rather focus on»interpretation«in the more narrow sense. 4 Contra legem interpretations in Norwegian law 4.1 Background information In order to determine to what extent contra legem interpretations may be considered justified in Norwegian law, it is necessary to introduce some key features of the Norwegian legal culture. Firstly, the Norwegian concept of»law«encompasses far more than formalised legislation. Norwegian theory of legal argumentation has abandoned the concept»source of law«, 22 and sees the law as consisting of a variety of legally relevant argument bases. The building blocks of the law have been enumerated in various ways, all primarily based on an analysis of the case-law of the Norwegian Sup- 22 Eckhoff argued against the use of the word source of law«(rettskilde), which he considered misleading. In his opinion, it gives the impression that law could be ladled up directly like water from a spring,«see Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 23.

9 RETFÆRD ÅRGANG NR. 1/ reme Court. 23 The perhaps most commonly used list was compiled by Eckhoff in and consists of seven factors: written law; meaning the Constitution, a written Act of Parliament or regulations enacted by the administration 2. preparatory works, other background materials and subsequent statements from the legislator 3. case-law, especially from the Supreme Court 4. the practises of other authorities, first and foremost the administration 5. the practises of private parties (not limited to business usages) 6. perceptions of law (rettsoppfatninger), particularly (but not only) from legal science 7.»policy considerations«(reelle hensyn); mainly considerations of fairness/justice, predictability/legal certainty, practicability and what might benefit the society as such Eckhoff also counted the law of other countries as a possible building block of Norwegian law, 26 as well as to some extent international law. 27 Later developments have made it necessary to allow international law a greater influence, 28 and add certain special varieties of this to the list including EU/EEA law and human rights A number of different listings have been introduced by later authors. See i.a. Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 30 f.; Fleischer, C. A. (1995): Rettskilder, Oslo, Ad Notam Gyldendal, p. 64 ff.; Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 218 f. For the foreign reader, it is important to note that while the number of relevant argument bases and their organisation varies, the disagreement is mostly formalistic: authors mostly agree on what the reality of legal argumentation is, even when they disagree to some extent about why and how best to describe it. To this effect, see also Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p Eckhoff, T (1971): Rettskildelære, Oslo, Tanum. The idea that Norwegian law constisted of more than legislation and customary law was, however, not fully new. See e.g. Augdahl, P. (1961): Rettskilder, 2 nd ed., Oslo, H. Aschehoug & Co. 25 See Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 23 ff. 26 Ibid., pp. 24 and, especially, p. 283 ff. 27 See Eckhoff s deliberations in Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 299 ff. 28 See Helgesens later additions in Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 305 ff. as well as Arnesen, F. & Stenvik, A. (2009): Internasjonalisering og juridisk metode, Oslo, Gyldendal, p. 69 ff. 29 See for example Fleischer, C. A. (1995): Rettskilder, Oslo, Ad Notam Gyldendal, p. 68, who points out that EU law holds a special position in the Norwegian legal system, as it stands between national and international law. See also Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 52. Jurist- og Økonomforbundets Forlag

10 26 RETFÆRD ÅRGANG NR. 1/144 All these argument bases are recognised as relevant for legal argumentation and are at the same time seen as an integral part of»the law,«which means that they all carry a certain normative effect in and of themselves (although to a highly varying degree). In consequence, the aim of interpretation in Norwegian law is not only to discover the legislator s intent whether in a subjective or objective sense. Rather, the aim is to identify the legal rule which, when considering all relevant factors for interpretation, appears the best-founded one according to the principles of legal argumentation. 30 Secondly, and despite the number of recognised legal argument bases, a democratic foundation is considered essential for the legitimacy of the law. A legal rule has a democratic foundation if it is based on democratically adopted legislation, and/or is in concordance with the will of the legislator. This element is missing in the case of contra legem interpretations, as the ensuing legal rule lacks a democratic basis. However, democracy is not the only recognised basis for legitimacy in Norwegian law. Somewhat simplified, it may be said that legitimacy is primarily based on three factors: democracy, predictability/legal certainty, and justice/fairness. 31»Predictable«in this sense is usually understood as a reference to that which is foreseeable for the subjects of the law in other words, that which is perceived as»right«by the population in general. 32 This raises some problems, for example because such perceptions may be difficult to properly identify, but I will not go into those here. 33 For my purposes, it is sufficient to say that»predictability«as a fundamental value in the legal system and a basis for legitimacy is not necessarily the same as technical»predictability«for educated lawyers. At the same time, it is also not necessarily the same as»predictability«for the concrete parties to a case; rather, it is an objectified value. Justice/fairness as a basis for legitimacy is also not easily defined. It centers on the values underlying the legal system as a whole, seeking consistency throughout all are- 30 Similarly, Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p For a more detailed description of legitimacy, as well as the connection between legitimacy and relevance, see Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 43 ff.; Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 142 ff. and p. 177 ff.; compare ibid. p. 109 ff. 32 For a more detailed presentation of predictability as a legal value, see Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 179 ff. See also Tande, K. M. (2011) Individuelle valg og vurderinger i rettsanvendelsesprosessen. Jussens Venner 1/2011 p. 1 on p Tande, K. M. (2011) Individuelle valg og vurderinger i rettsanvendelsesprosessen. Jussens Venner 1/2011 p. 1 on p. 26 also points out some inherent problems with identifying the prevailing perceptions and determining whether they are deserving of protection by the legal order.

11 RETFÆRD ÅRGANG NR. 1/ as of law. 34 As a value in legal argumentation, it focuses on people s perception of and expectations to the law, and takes the form of an assessment of the goodness of the outcome in a specific case. 35 In this way, policy considerations the seventh factor on Eckhoff s list are integrated into legal argumentation. While it is impossible to exhaustively list all arguments that may become relevant in this context, it is a common requirement that they must be inter-subjective, and based on established legal values. 36 Such values include both values which have been condoned by the legislator through other legislation and more general values of the legal system, 37 as well as societal values in a broader sense. 38 The application of the law as a whole must be seen as just and fair, predictable and democratically anchored. 39 Obviously, it is not always possible to observe all three factors to the same extent the predictable outcome may be perceived as unfair, or the democratically anchored argument may lead to unexpected results. The ideal legal rule is the one which ensures a balance between these three fundamental expectations of the law. 40 This means that a deficit in one department may be outweighed if the rule in question favours one over the other. In consequence, a legal rule may be perceived as legitimate in Norwegian law even though it is not anchored in democratically adopted legislation. In other words, an interpretation contra legem may be perceived as perfectly legitimate despite its lack of a democratic basis, depending on the concrete circumstances. Furthermore, in addition to the alternative basis for legitimacy, the legislative technique favoured by the Norwegian legislator means that restrictive interpretation is fairly common. 41 The fragmentary character of Norwegian law means that it is sometimes necessary to»cut away«some of the text in order to make the fragments fit to- 34 Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p Ibid., p Ibid., p On acceptable policy considerations, see also Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 386 and Bernt, J. F. (2002) Den dynamiske dimensjon i rettskildelæren, Nybrott og odling, Festskrift til Nils Nygaard, Bergen, Fagbokforlaget, p See for example Rt p (Two suspicious persons), in which the Supreme Court, based on a variety of legal rules and rule fragments from different areas of law, deduced that personality protection must be seen as a general principle in Norwegian law. This type of general values will favour a contra legem interpretation if the outcome of interpretation would otherwise prove incompatible with the general value. Even so, they are only one argument among several, and the outcome is not given. 38 Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p Ibid., p Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p See also chapter 0 above. Jurist- og Økonomforbundets Forlag

12 28 RETFÆRD ÅRGANG NR. 1/144 gether. 42 In addition, the provisions are often formulated in broad and general terms, as details are more commonly given in the preparatory works. The Norwegian legislator tends to prefer an accessible, uncluttered text, and by phrasing the provisions in general terms and building rules out of fragments, it becomes possible to pass Acts that are reasonably exhaustive without being too extensive. 43 The details are instead included in the preparatory works, which are traditionally considered very important for the interpretation of Scandinavian legislation. 44 Due to this fragmentary legislation and the imperfect and incomplete system of legal rules, however, the Norwegian written law in itself is insufficient to ensure legitimacy in the form of predictability. Consequently, the written law is supplemented by other factors, primarily case-law from the Supreme Court, but also the preparatory works and the integration of»predictability«into the legal argumentation as a directly relevant argument in its own right. The extensive reliance on case-law as a mechanism to ensure predictable outcomes is possible in Norway because of the way the court system is construed, and because of its relatively limited case-load. There is only one court hierarchy, 45 and there is no specialisation within each court; all judges must be able to deal with all types of cases. In other words, the Supreme Court has the possibility to correct any discrepancies between courts in different parts of the country, and to ensure a consistent practice in all areas of law. The Supreme Court remains free to deviate from previous judgements, but if it wishes to do so, the case must be determined by a Grand Chamber. Different from several other European countries, the case-load and the amount of case-law is not overwhelming from a researcher s point of view. It is fully possible to maintain an overview of the court s case-law. In consequence, the problem of diverging jurisprudence, where one Chamber of the Court disagrees with another over time, is virtually unknown in Norway. This means that extensive reliance on case-law does indeed produce predictable results, unlike what the case would be under for example German conditions, where the six independent court hierarchies, the considerable number of decision-making bodies (even at the highest level) as well as the enormous case-load makes it impossible to keep a complete overview of the state of the case-law at any given time. This difference its turn means that the Norwegian legal system is not dependent on consistency 42 Ibid., p See Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p See, from among several, Monsen, E. (2012): Innføring i juridisk metode og oppgaveteknikk, Bergen, Cappelen Damm, p. 159; Andenæs, M.H. (2009): Rettskildelære, 2 nd ed., Oslo, p Although the recently elected government (aug. 2013) has initiated a review of the court system with the aim to consider whether there should be more specialised courts, see»politisk platform, for en regjerning utgått av Høyre og Fremskrittspartiet«, Sundvollen, 7. Oktober 2013, p. 13.

13 RETFÆRD ÅRGANG NR. 1/ and coherency to the same extent as the German and other systems with similar characteristics. Norwegian interpreters, like their German counterparts, do seek to avoid inconsistency and ensure coherency in their interpretations, 46 but at the same time, the need for coherency does not stand in the way of pragmatic solutions to individual cases. Individual exceptions, for example justified by the need to find a fair solution to a particular case, usually do not damage the general predictability of the law for the future. 4.2 Under what circumstances does Norwegian law accept interpretations contra legem? Starting points Because the wording of an Act of Parliament is an authoritative argument, a contra legem outcome of interpretation must be justified by other, competing, legal argument bases (or source-of-law-factors) 47 it is the result which is contrary to the wording that needs justification, not the result which follows from the wording itself. What constitutes sufficient justification is not determined on the basis of a hierarchy between different legal argument bases, as all factors are in principle equal, 48 but rather by a balancing process. The wording (possibly supported by other arguments) comprises one side of the balance. The other side may be made up of any or all of the other legal argument bases, as all of them may be relevant for the interpretation of an Act of Parliament, depending on the concrete situation. In the absence of a formalistic hierarchy, the outcome is determined by a weighing of arguments, which is governed by principles of legal argumentation. This is done in two steps: the interpreter must first determine the weight of each argument in itself (inherent weight), and then its weight in relation to arguments based on other sources (relative weight). 49 The inherent weight of an argument is, among other things, influenced by the system of legitimacy described above. Arguments can have different degrees of legitimacy, 46 Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, inter alia on p To this effect, see for example Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p Regarding the terminology of Norwegian legal methods, which avoid using the traditional concept»source of law«, see Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 23 and Helland, I. & Koch, S. (2013) Einfürung in the norwegische juristische Methodenlehre. Zeitschrift für Europäisches Privatrecht, p Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 28. See 0 above. 49 The concepts»inherent weight«(egenvekt) and»relative weight«(relativ vekt) were introduced by Helset, P. (1986) Innledning til rettskildelæren. Jussens Venner 8/1986. See also the discussion by Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 28. Jurist- og Økonomforbundets Forlag

14 30 RETFÆRD ÅRGANG NR. 1/144 and this will affect their weight, or persuasive power. A number of other factors are also taken into account. The number of variables means that the so-called»weighing«of factors cannot be done with mathematical precision, but some general guidelines may nevertheless be identified. When considering a contra legem interpretation, the wording will have to be weighed against the factors favouring the opposite solution. The wording may be supported by one or more factors in this context, the will of the legislator, but possibly also others. Likewise, there may be more than one counter-argument. If more factors favour the contra legem interpretation, then this may be the outcome even though neither factor was sufficient to outweigh the wording on its own. In the following, I will give a brief overview of factors governing the weight of the wording and explain the influence of the will of the legislator, before introducing the most central types of arguments that may justify an interpretation contra legem. 4.3 The argumentative weight of the wording The wording is the result of a democratic decision-making process. A literal application usually produces predictable results, and in the majority of cases, the outcome of an Act s application will be perceived as just and fair. Furthermore, the wording is normally meant to be representative of the legal rule, and the legislator has under normal circumstances carefully selected those terms and expressions which best represent its meaning. 50 In consequence, the natural understanding of the wording normally carries considerable weight as an interpretative argument, 51 meaning that the counter-arguments must be more than equally persuasive for a contra legem interpretation to be taken into consideration. The argumentative weight of the wording varies, however, depending on the concrete circumstances of the case. For example, in criminal or administrative law, where a principle of legality applies, the wording has particularly strong weight. 52 Likewise in other cases, where the need for legal certainty and/or the potential harmfulness of 50 Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p See also Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag, p. 419 f. 52 See for example Rt p. 989 (the telephone harassment case, Telefonsjikanedommen); Rt p. 433 (the daycruiser judgement, Passbåtdommen). From the literature, see representatively Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, pp ; Monsen, E. (2012): Innføring i juridisk metode og oppgaveteknikk, Bergen, Cappelen Damm, p. 76 ff. However, in criminal law this only applies to the benefit of the accused. Supreme Court case-law has established the so-called»rettstridsreservasjonen«the reservation that the allegedly criminal act must be against not only the relevant provision of the Criminal Code as such, but also against the law in a broader sense (@kilde mangler). In effect, this opens up for interpretations contra legem of penal provisions provided this is favourable to the accused party.

15 RETFÆRD ÅRGANG NR. 1/ arbitrariness is particularly high. Furthermore, the precedence clause in 2 of the EEA Act means that the wording of Acts which implement EU Directives is particularly resistant to contra legem interpretations. 53 Other factors limit the weight of the wording. For example, because it is difficult for the legislator to predict all possible future cases which may fall under the scope of the Act, a provision may occasionally encompass a group of cases for which its solution appears unpredictable and/or unfair/unjust. Other factors include for example age an older Act will generally carry less weight than a newer one, because age weakens its democratic basis. 54 This is especially true if society has changed, so that the reality which the Act regulates is different in certain key aspects from what it was when the Act was adopted. 55 Generally, if the weight of the wording is limited, a contra legem interpretation can be more easily arrived at. 4.4 The will of the legislator affects the weight of other arguments Because of the Norwegian legislative technique, the subjective will of the legislator will regularly have been expressed in the preparatory works. As a starting point, the argumentative weight of the preparatory works, which derive their legitimacy from that of the Act, and which contribute to a predictable application of the law, is considerable; particularly if the will of the legislator regarding the issue at hand has been clearly stated. 56 If the natural understanding of the wording is thus supported, a contra legem interpretation is only possible when faced with exceptionally strong counterarguments. As a main rule, therefore, a contra legem interpretation will not be accep- 53 Provided the national legal rule correctly implements the relevant Directive. In cases where the legislator has, for whatever reason, adopted a rule which is in fact contrary to the Directive it professes to implement, then the wording is, if anything, less resistant to a contra legem interpretation than would otherwise be the case. 54 The Supreme Court s reasoning in Rt p. 306 is illustrating. When a mother and daughter sued for annulment of fatherhood status which had been acknowledged by their now deceased son/brother, the Supreme Court found no reason to interpret 6 of the Child Act extensively contra legem in order to grant them right of action. The Court pointed out that the Act was relatively new, and the limitation of persons holding right of action was the result of careful deliberations by the legislator. Any changes motivated by its alleged unreasonability must therefore in any case come from the legislator (p. 307), and the Court consequently did not consider it necessary for itself to assess whether or not the limitation was reasonable. 55 Compare Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag, particularly p. 392 ff.; Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 243; Nygaard, N. (2004): Rettsgrunnlag og standpunkt, 2 nd ed. Bergen, Universitetsforlaget, p. 44; Monsen, E. (2012): Innføring i juridisk metode og oppgaveteknikk, Bergen, Cappelen Damm, p. 159 ff. On the importance of the legislator s point of view, as expressed in the preparatory works, see also the Supreme Court s reasoning in the Kløfta judgement, Rt p. 1. Jurist- og Økonomforbundets Forlag

16 32 RETFÆRD ÅRGANG NR. 1/144 table in these cases. However, this rule is not entirely without exceptions. If the counter-arguments are sufficiently strong, even a contra legem interpretation against not only the wording but also the express will of the legislator becomes possible. I will come back to this when presenting possible counter-arguments below. Where the legislator has not clearly expressed its will regarding the issue at hand, the situation is somewhat more open. If some support for the wording may be derived from the objective will of the legislator, this too fortifies the wording to the extent that a contra legem interpretation remains the exception; strong justification is required also in these cases. If the will of the legislator objective or subjective is simply unclear, for example due to ambiguous wording and/or a lack of explicit statements in the preparatory works, any argument derived from the natural understanding of the wording lacks the explicit support of the legislator, but at the same time, the will of the legislator does not clearly oppose it either. In these situations, a contra legem interpretation is possible also if the counter-arguments are somewhat less strong. However, the interpreter must bear in mind that in the absence of other arguments, the will of the legislator must generally be presumed to coincide with the natural understanding of the wording. 4.5 Arguments that may outweigh the wording In principle, all counter-arguments derived from factors listed by Eckhoff may, given the right circumstances, outweigh the wording. Because the resulting legal rule must be perceived as legitimate despite its democratic deficit, however, certain circumstances are more likely than others to lend counter-arguments enough weight to justify a contra legem outcome of interpretation. 57 Such circumstances include, firstly, the situation where the arguments in favour of a contra legem interpretation are supported by considerations of predictability and/or justice/fairness. These are not only grounds for legitimacy in themselves, but also fundamental policy considerations (reelle hensyn) in Norwegian legal argumentation, and as such, function both as legal argument bases and as principles of weight. 58 Secondly, there are arguments derived from various factors but reinforced by the need for harmony in the legal system. These encompass mainly arguments based on other legal rules, whether written or unwritten, national or international. In addition, other policy considerations may be relevant, if rarely on their own then perhaps in combination. As there is no room for a detailed examination in this context, I will in the following focus on the first two groups. 57 On this topic, see also Bergo, K. (2000): Høyesteretts forarbeidsbruk, Oslo, Cappelen Akademisk Forlag, particularly p. 419 ff. 58 Bernt, J. F. & Mæhle, S. S. (2007): Rett, samfunn og demokrati, Oslo, Gyldendal, p. 451; Eckhoff, T. & Helgesen, J. E. (2007): Rettskildelære, 5 th ed., Oslo, Universitetsforlaget, p. 370.