Researching Danish Law
by Rasmus H. Wandall
Rasmus H. Wandall is assistant research professor and post doctorial research fellow at the Faculty of Law, University of Copenhagen. He holds degrees in legal studies from the University of Copenhagen (Bachelor, 1997; Masters, 2000; Ph.D., 2004). He has been Visiting Fellow at UC Berkeley (2001 and 2005), Global Fellow at NYU Law (2004-2005) and most recently Visiting Academic at Oxford University, Centre for Criminology (2005-2006). He researches and publishes on comparative criminal law and penology.
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Table of Contents
3.3. The Judicial Power
4.1. Written Law
4.1.1. The Constitution
4.1.2. Statutory Law
4.1.3. Regulatory Law
4.4. Customary Law
4.6. European Union Law
6.1. Internet Resources
The Kingdom of Denmark comprises of the territories of Denmark, the Faroe Islands, and Greenland. Denmark is located East of England and north of Germany. It consists mainly of the Peninsula of Jutland (Jylland), and the major islands of Sealand (Sjaelland) and Fune (Fyn). The country is 43.094 square km. The Faroe Islands are located between Norway, Scotland and Iceland and Greenland to the north. Both the Faroe Islands and Greenland are represented in the Danish Parliament and have self-ruling systems. Though part of the Danish Kingdom, none of the two territories are part of the European Union.
As a country, Denmark is characterized by its comparatively strong welfare oriented profile. It maintains an egalitarian ethos, and holds strong ideals of economic and social equality. OECD reports that Denmark has one of the lowest levels of social inequality (Gini coefficient 22.5). The country has a progressive tax system, it has tax-paid education, universal welfare insurance programs, and the social benefits are comparatively large. Despite changes in the political discourse in recent decades, the state continues to assume a great responsibility for the assurance of social citizenship.
The population of Denmark is 5.5 million; the population of Greenland is 55.000 and that of the Faroe Islands 48.000. The population of Denmark is culturally homogenous. Only 8 % of the Danish population are immigrants or descendants of immigrants (second generation). Major countries of origin are Turkey, Germany, Lebanon, Bosnia-Herzegovina, Pakistan, former Yugoslavia, and Somalia (Statistisk Årbog 2005. 44. Danmarks Statistik). In terms of religion, the population is characterized by a relatively high degree of secularization. In the 2004 European Social Survey, 37 % were estimated not to belong to any particular religion or denomination while 63 % were estimated to belong to a particular religion or denomination. Of the latter estimated group, 94 % were estimated to belong to the Lutheran Protestant Church, 2 % to Islam, and less than 1 % to other non-Christian religions. Yet, the predominant part of the population clearly has a Protestant cultural heritage. More than 80 % belong to the public church, the Lutheran Protestant Church.
Danish and Nordic law share several common denominators with continental European legal systems. Nevertheless, The Roman Empire and its laws never reached north of Slesvig and the legal systems of the Nordic countries have evolved with distinctiveness. In particular, Danish law has many common law traits. Nevertheless, the Nordic countries are not Common Law countries, but it is normally accepted that Denmark and its Nordic fellow countries, despite strong ties to continental legal systems, make up a legal family of their own. Placing Danish law with varying degrees of attachment to continental law, see David and Brierley (1996), Zweigert and Kötz (1998), and Tamm (2002).
Denmark was administratively united already in the medieval time and has since then existed as one unity. At times it has extended its ruling powers to England, all of Scandinavia and the Baltic countries. The Medieval laws (most prominently the Law of Jutland, 1241) created a framework for centuries of legal thinking and played an important part until the 17th century. Medieval laws showed clear influences from Canon Law, yet only sporadic influence from Roman Law. Both Canon and Roman law was nevertheless taught at the University of Copenhagen from its foundation (1479).
Absolutist governmentality was brought to Denmark in 1660 and a lex regia was issued in 1665. It constituted the monarchial powers of the King, hereunder his authority to legislate. Though absolutist, it is considered that the constitutional form was an enlightened and benevolent one. The most significant piece of legislation of that time, representing an attempt to unify the laws of the country, was the Danish Code (1683) issued by King Christian V.
Law was professionalized in significant ways in the 18th century. A legal university degree was introduced as the University of Copenhagen in 1736 and the Royal and City Court (Hof- og Stadsretten) was founded in 1771. Furthermore, the European developments of the time made its way to the heart of Danish legal thinking and practice. Most importantly this was personalized in the activities of Henrik Stampe, who, inspired by the Enlightenment writers of the time, made several proposals for legal reform.
The 19th century, the century of the great law books of Prussia, Austria and France, witnessed the emergence of what is considered modern Danish legal science through the works of Anders Sandøe Ørsted (1778-1860). The absolutist monarchy was abolished (1848), Constitutional monarchy introduced (1849), and a Nordic legal cooperation took shape. To begin with only Norway, Denmark and Sweden took part in the cooperation, but after its independence in 1918, also Finland joined the cooperation. However, the century never brought the great modern European law books to the Nordic countries.
As to the Nordic cooperation, it has strived for a certain level of consistency between the laws of the Nordic countries, yet maintained complete national autonomy of implementation and detail. Differently with the European Community, and later the European Union, which Denmark joined in 1973. With the primacy of European Law, the membership has had enormous consequences for Danish law in wide-ranging areas of law.
The Constitutional Act was revised in 1953, following the Second World War and the German occupation, and following the agreement of the European Convention for Human Rights and Fundamental Freedoms (1950).
Denmark is a constitutional monarchy. The Constitutional Act of 1953 places the legislative power with the King and the Parliament conjointly. The executive power is vested in the King. Reference to the King in practice refers to the Government. The judicial power lies with the courts of justice. The Government may dissolve The Parliament and call for general elections, while a majority of the 179 members of Parliament may issue a vote of no confidence in a Cabinet or a Minister. The Courts of Justice have control over the Government and Administration and may try the constitutionality of Parliamentary Acts. The Parliamentary Ombudsman has right of scrutiny of the administration of the executive powers.
Royal authority is inherited in accordance with the Act of succession to the Throne of March 27, 1953. The King must belong to the Evangelical Lutheran Church, and must faithfully adhere to the Constitutional Act. Formally, it is the King who appoints and dismisses the Prime Minister and his ministers, and the King who by signature gives royal assent to parliamentary approved bills. In practice the government is formed by the prime minister and it is the Government and the Parliament who legislate conjointly.
The Parliament (Folketinget) sits in a single chamber, consisting of 179 elected members, two of which are elected on the Faroe Islands and two in Greenland. Parliamentary elections are held every four years if election has not been called before. Legislative bills must be presented and accepted three times in the same Parliamentary year. In between these three presentations and votes on the bill, parliamentary committees may issue reports and resolve political disputes on the bill. Once approved, the bill must receive Royal Assent and be made known publicly in order to acquire validity.
The executive power operates under the authority of the King – in practice the Prime Minister. He or she appoints and dismisses the individual ministers, each administrating different branches of state government. The main examples include the Prime Minister’s Office, the Ministry of Foreign Affairs of Denmark, the Ministry of the Interior and Health, the Ministry of Finance, and the Ministry of Justice. There are nineteen ministers at this time (May 2006). Each ministry typically consists of a central department and a number of ministerial agencies under its jurisdiction.
Following the Constitutional Act of 1953 § 82 some public tasks are to be delegated to local municipalities. The extent and circumstances of the delegations is defined by statutory law and the local municipalities exist under the supervision of state authority. According to the recent reform of the structure of local and regional governance Denmark is divided into 98 local municipalities and five regions. Each municipality is governed by an elected body of locally elected representatives.
The judicial court system of Denmark comprises 82 county courts, the Maritime and Commercial Court of Copenhagen, the Eastern and the Western High Courts and the Supreme Court. The Special Court of Indictment and Revision hears cases of disciplinary sanctions against judges and re-opening of criminal cases. The Court of Impeachment hears cases in which Ministers are charged with violating their duties as Ministers. A recent act, reforming the organization of the judicial courts and the police, reduce the number of county court jurisdictions to 24.
Judges are appointed for life. They are subject only to the rule of law and are guaranteed absolute independence from Government and Parliament by the Constitutional Act of 1953 § 64. Judges furthermore enjoy personal independence. They cannot be removed against their will and may be dismissed only by order of the Special Court of Indictment and Revision. Similar safeguards are conferred on deputy judges. To further ensure the independence of the judiciary, The Danish Court Administration, was established in 1999 to manage the appointment of judges and the economic and organizational administration of the Danish courts. The administration is formally independent from the executive power and governed by an executive committee.
County courts have county jurisdiction and the two High Courts regional jurisdiction. Only the Supreme Court has national jurisdiction. County Court decisions are appealable to the High Court. High Court decisions can be appealed to the Supreme Court. As a general rule a case can be appealed only once. Small claims cases cannot be appealed at all. Decisions of general public interest can be granted leave of appeal by the Board of Appeal.
Contrary to other countries, the Danish judiciary does not have special courts for administrative matters, criminal matters, civil matters, or for constitutional matters. The Supreme Court hears appeals on all matters. Laymen participate in the handling of criminal cases: In county court cases they vote together with the judicial judge and in High Court cases they decide on the question of guilt alone and on the question of criminal sentence together with the judicial judges.
Since Denmark joined the European Community and later the European Union, its legal system has been influenced significantly and directly by European Community law. Today, a large part, and by some measures an increasing part, of Danish legislative statutes and regulations are the result of European Union obligations.
Denmark has been a member of the European Community since 1973 as defined in the Inaugural Act of 1972. In connection with Denmark’s accept of the Maastricht-Treaty, four Danish reservations to the Treaty were agreed upon (the Edinburgh agreement). First, Denmark does not participate in the union-citizenship. This was later incorporated into the Amsterdam Treaty. Second, Denmark does not participate in the European monetary union. Third, Denmark does not take part in supra-national decisions and actions in the area of defense. Fourth, Denmark does not take part in the supranational cooperation in the area of justice and internal affairs.
Major sources of law in Denmark include the Constitutional Act, statutory legislation, regulatory statutes, precedent, and customary law. The recognition of tradition of culture (forholdets natur) is disputed though it does bear significantly on Danish law in a variety of contexts. Statements of the Parliamentary Ombudsman are of particular relevance in the area of administrative law.
A book in any similarity to the Code Civil has never been incorporated into Danish law. Nevertheless, Danish law is characterized by extensive bodies of systematic and written law. The area of private law is dominated by a range of individual statutory acts and in some areas by unwritten law guided mainly by precedent and custom. The area of general criminal law is governed by The Criminal Code, and the area of administrative law by two general statutory acts of public administration (Forvaltningsloven og Offentlighedsloven) and a complex body of substantive, sector specific statutory acts.
The Constitutional Act represents the highest national legal authority. It first came into force in 1849 and now exists as revised in 1953. An unofficial version of the Constitutional Act is available online. An official Danish version can be found on www.retsinfo.dk.
Statutory legislation has primacy over other national written legal sources, save for the Constitutional Act. A large number of individual statutes have been adopted to regulate individual areas of law. Examples include The Danish Penal Code (Straffeloven), The Administration of Justice Act (Retsplejeloven), the Act of Commerce (Købeloven), The Act of Contracts (Aftaleloven), The Insolvency Act (Konkursloven), and The Heritage Act (Arveloven). These are but a few examples.
The official versions of new statutory laws appear in the official journal Lovtidende A, published every Tuesday and Friday. The laws are available directly online from the database on www.retsinfo.dk. This database, administered by the same authority that publishes Lovtidende, was established in 1985 and contains all Danish rules and regulations. Only selected sources are available predating 1985. The database also contains bills and most other documents from the legislative process in the Parliament, parliamentary resolutions and proposals for parliamentary resolutions. Statements from the Danish Ombudsman and administrative decisions with precedent character are also available from the database. The web-site of The Danish Parliament contains systematically and chronologically organized passed and rejected bills and the documents of the Parliamentary debates and inquiries. Furthermore, statutory legislation and regulation in force may be found on www.retssal.dk, which links to the documents of the publicly administered www.retsinfo.dk.
Another entry to statutory laws is the collection of commentated statutory laws and more, published and regularly updated in Karnovs Lovsamling. This collection is an extremely valuable research-tool as it combines access to legislation, case-law as well as a wide range of published articles (those published in journals of Thomson Publishing). Access to Karnov requires login and password.
Most major pieces of statutory law have been the subject of a legal commentary, systematically and regularly published by Djoef Publishing. These commentaries are likewise indispensable for research purposes and, together with Karnov, serve as a principal tool for practitioners to clarify uncertainties of interpretation and discretion.
The legal web site maintained by the Faculty of law, University of Copenhagen, contains an updated list of some (unofficial) translated Danish statutes. Some statutes have also been published in English. See e.g. The Danish Criminal Code, The Danish Corrections Act, and The Administration of Justice Act (Excerpts). Marlene Frese Jensen, et al (eds.). 3rd ed. Djoef Publishing. 2006.
It is worth noting that the more important Danish statutory laws are frequently consolidated so to have available complete and updated statutory laws. Examples are the yearly consolidations of the Administration of Justice Act as well as of the Penal Code.
Under the authority of the Constitutional Act, European Community commitments or under national statutory laws, the administration may issue regulations, typically in the form of bekendtgørelser, cirkulærer, and vejledninger. The first of these is characterized by its power to regulate the legal standing of citizens, while the latter two are used as regulatory tools on lower level administrative agencies. Bekendtgørelser are published in Lovtidende A, while cirkulærer and vejledninger are made available in Ministerialtidende, also published by Retsinformation. All are available online in Danish.
Though considerable legal power is vested with the judiciary, court practice does not in any way have the same authoritative role as in Common Law countries. This does however not prevent the courts from taking an active role in shaping the content of law in many areas, e.g. torts. As sources of law, precedents are used to test the legality of statutes and regulations, to interpret statutes, to provide guidance to discretionary statutory rules and to develop law in areas not regulated by written law.
There are no official reporting of courts’ decisions in Denmark. Though a database does exist for court decisions, legal, economic as well as political obstacles prevent it from being practically usable. Instead, selected cases, primarily from the higher courts, have been published since the early nineteenth century. Since 1867 Ugeskrift for Retsvæsen has been the dominant source of published court practice from the High courts and the Supreme Court. During the last two decades a significant number of new and specialized legal journals have surfaced and now represent specialized – but still edited – sources of court practice. Only few of these sources are available free of charge and without a license. The web-site www.juraportal.dk provides a list of some of these databases. The same address also gives further links to lists of databases for the law and the decisions of boards and administrative authorities. Published and edited case collections can be found in most substantive areas of law, either for teaching purposes or for practitioners. The two principal publishers are Djøf Forlagene and Forlaget Thomson.
The Parliamentary Ombudsman issues statements about the legality and desirability of administrative decisions and conduct. His most important statements are published yearly and are also available on his website. Though his statements are not legally binding they are considered a very high authority and are adhered to by the administration. It is an indispensable source when researching administrative law.
Customary law is ordinarily viewed as denoting customs which have been followed generally and continuously with a sense of legal obligation.
Customary law is unwritten and cannot be expected to be reported. It covers limited areas of contractual practices, land registration, and criminal law; it is relevant in relation to some areas of public administration and constitutional matters. Customary law may be recognized in case law but most often the source is found in scholarly writing or in the public legal offices that deal with the area of law in question.
Forholdets natur – in English translated to tradition of culture – may be viewed as a reference to the legal and cultural tradition as a determinant for a legal analysis or for the ways in which other legal sources are applied. Tradition of culture may refer to considerations of fairness, equality, and feasibility as to societal needs and the common evolution (Torben Jensen in UfR 1990 B 441). The nature of the tradition of culture as a source of law remains the subject of considerable academic dispute.
Regulations issued by the European Union are directly applicable in Denmark and have primacy over national law. European Union Decisions are to the extent stipulated directly applicable in Danish Law. As a main rule Directives must be incorporated in Danish law in order to have effect. Incorporation takes place as ministerial regulation or as parliamentary statutory legislation. European Court practice applies directly in national law. EC legal sources are available in all European Union languages on EUR-Lex.
Danish Law recognizes a principle of dualism and requires international legal sources to be incorporated to have legal effect for and against its citizens. However, the last two decades have seen the recognition of international legal sources as means for safeguarding the rights of individuals. The respect of the European Convention on Human Rights and Fundamental Freedoms and some Conventions of the International Labor Organization represent major examples. Denmark has ratified and incorporated all major Council of Europe and United Nations Human Rights instruments. The Danish Institute for Human Rights is a good additional resource of data and literary references.
Additional References used in the article
Danmarks Statistik. Statistisk årbog 2005 (Danmarks Statistik)
Ditlev Tamm, The Danes and Their Legal Heritage, in Danish Law in a European Perspective, 41 (Ditlev Tamm, et al. eds., 2002)
Rene David & John E.C. Brierley, Major legal systems in the world today: an introduction to the comparative study of law (3rd ed., Stevens 1996)
Konrad Zweigert & Hein Kötz, Introduction to Comparative Law (3rd ed., Clarendon Press 1998)