UPDATE: Researching Law in Denmark
By Rasmus H. Wandall & co-author Steen Rosendahl
Rasmus H. Wandall is currently working for the Head of Prosecutions in Denmark. He is responsible, among others things, for developing sentencing information systems. He has been an assistant research professor and a post-doctoral research fellow at the University of Copenhagen. He holds degrees in legal studies from the University of Copenhagen (bachelor’s, 1997; master’s, 2000; Ph.D., 2004). He has been a Visiting Fellow at UC Berkeley (2001 and 2005), a Global Fellow at New York University School of Law (2004-2005) and a Visiting Academic at Oxford University’s Centre for Criminology (2005-2006). He researches and publishes on comparative criminal law and penology.
Steen Rosendahl is a law librarian at The Library of the Faculty of Law, University of Copenhagen. He is editor in chief of the legal research web site www.juraportal.dk, and he is responsible for the library's European Documentation Centre. He also instructs academic staff and students in information research methodology.
Published January 2009
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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
4.1.4. Regulatory Law
4.4. Customary Law
4.6. European Union Law
6.1. Internet Resources
6.3. Additional Resources
The Kingdom of Denmark is comprised 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 islands of Sealand (Sjaelland) and Fune (Fyn). The country is 43,094 square km. The Faroe Islands are located in the vicinity of Norway, Scotland, Iceland and Greenland. Both the Faroe Islands and Greenland are represented in the Danish Parliament and have self-ruling systems. Though they are part of the Danish Kingdom, the two territories are not associated with the European Union.
As a country, Denmark is characterized by its comparatively strong welfare oriented profile. It maintains an egalitarian ethos, and subscribes to strong ideals of economic and social equality. OECD reports that – together with Sweden – Denmark has the lowest levels of social inequality in the world (Gini coefficient 0.232). The country has a progressive tax system, tax-paid education, and universal insurance programs that offer comparatively large social benefits. Despite changes in the political discourse in recent decades, the state continues to assume a great responsibility for the social welfare of the population.
The population of Denmark is 5.5 million; the population of Greenland is 55,000; and the population of the Faroe Islands is 48,000. The population of Denmark is culturally homogenous. Only 9 % of the Danish population consists of immigrants or their descendants. Major countries of origin for immigrants living in Denmark include Turkey, Germany, Lebanon, Bosnia-Herzegovina, Pakistan, the former Yugoslavia, and Somalia. In terms of religion, the population is highly secularized. According to the 2004 European Social Survey, 37 % of Denmark’s population does not belong to any particular religion or religious denomination. Of Danes who do belong to a religion, 94 % were estimated to belong to the Lutheran Protestant Church, 2 % to Islam, and less than 1 % to other non-Christian religions. In any case, the majority of the population clearly has a Protestant cultural heritage. More than 80 % of the population belongs 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 their own distinctiveness. Danish law has many common law traits. Nevertheless, the Nordic countries are significantly different than Common Law countries. It is commonly held that – despite strong ties to continental legal systems – Denmark and its fellow Nordic countries make up a legal family of their own (see David and Brierley (1996), Zweigert and Kötz (1998), and Tamm (2002)).
Since the Middle Ages, Denmark was been administratively united. At times it has extended its sovereignty 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 were nevertheless taught at the University of Copenhagen from its inception in 1479.
Absolutism was brought to Denmark in 1660, and a lex regia was issued in 1665. Though absolutist, this regime was considered to be enlightened and benevolent. The most significant piece of legislation of the period 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 period made their way to the heart of Danish legal thinking and practice. European influences manifested themselves most clearly 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 to be modern Danish legal science through the works of Anders Sandøe Ørsted (1778-1860). The absolutist monarchy was abolished in 1848, Constitutional monarchy was introduced in 1849, and Nordic legal cooperation began to take shape. Initially, only Norway, Denmark and Sweden took part in the cooperation, but after its independence in 1918, Finland also joined.
Nordic cooperation has strived for a certain level of consistency between the laws of the Nordic countries, yet it has maintained complete national autonomy. This makes Nordic cooperation different than the European Community, and the European Union, which Denmark joined in 1973. With the primacy of European Law, EU membership has had enormous consequences for Danish law. Following the Second World War and the European Convention for Human Rights and Fundamental Freedoms (1950), the Constitutional Act was revised in 1953.
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. Moreover, the King gives royal assent to bills approved by Parliament. In practice, the government is formed by the prime minister, and the Government and Parliament legislate conjointly.
The Parliament (Folketinget) sits in a single chamber. It consists of 179 elected members, two of whom are elected from the Faroe Islands, and two from Greenland. Parliamentary elections are held every four years, unless an election is called earlier. 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 promulgated 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 Finance, and the Ministry of Justice. There are nineteen ministers at this time (November 2008). 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 court system of Denmark is comprised of 24 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 mischarging their duties.
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 also enjoy personal independence. They cannot be removed against their will, and they may only be dismissed 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 is governed by an executive committee.
County courts have county jurisdiction and the two High Courts have 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.
Unlike that of other countries, the Danish judiciary does not have special courts for administrative matters, criminal matters, civil matters, or constitutional matters. The Supreme Court hears appeals on all matters. Laymen participate in the handling of criminal cases; they vote together with the judge both in county court cases and in High court cases. For more information about the Danish judicial system, see here.
Since Denmark joined the European Community, which transformed into the European Union, its legal system has been influenced significantly by European Community law. A large proportion of Danish statutes and regulations are the result of obligations to the European Union.
Denmark has been a member of the European Community since 1973. As a result of the Edinburgh agreement, Denmark has four opt-outs to the Maastricht Treaty. First, Denmark does not participate in European Union citizenship (this provision has been incorporated into the Amsterdam Treaty). Second, Denmark does not participate in the European economic and monetary union. Third, Denmark does not take part in supranational decisions and actions in the area of common defense. Fourth, Denmark does not take part in supranational cooperation in the area of justice and home affairs. For more on the Danish EC position, see here.
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. Also, Statements of the Parliamentary Ombudsman are of particular relevance in the area of administrative law.
Danish law is characterized by extensive bodies of systematic and written law. Private law is dominated by a range of individual statutory acts and, in some areas, by unwritten law guided mainly by precedent and custom. Generally, criminal law is governed by the Criminal Code, and administrative law is governed 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 was revised in 1953. An unofficial version of the Constitutional Act is available here. An official Danish version can be found here.
Statutory legislation has primacy over other 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).
The official versions of new statutory laws appear in the official journal Lovtidende A (1871- ). Since January 1, lovtidende is published electronically. Lovtidende is published in three sections: A, B and C. Lovtidende A contains all statutes, decrees and orders which are not published in Lovtidende B. Lovtidende B contains Finance Acts, Supplementary Appropriation Acts, and Civil Servants (Amendment) Acts. Lovtidende C contains treaties. Lovtidende is published on any given weekday on which regulations are to be made public. Acts are normally announced the day after the Royal Assent has been granted.
The laws are available online here. 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.
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, s it combines access to legislation and 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.
Juraportal, which is 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, for example, 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 to ensure the availability of complete and updated statutory laws. Examples are the yearly consolidations of the Administration of Justice Act as well as of the Penal Code.
Any Member of the Folketing has the authority to introduce Bills. Nevertheless, three out of four Bills are introduced by the Government. Independent of the Government, a majority in the Folketing may also demand the Government to introduce a Bill on any particular subject.
For a Bill to become law it must be read three times in the Folketing, made public, and be signed by the Queen. The first reading is a reading in principle. The details are examined by the committees and, during the second reading, the individual sections are discussed and amendments are often made before the Bill is adopted at the third meeting.
The web site of the Folketing contains systematically and chronologically organized materials, as well as rejected bills and the documents of the parliamentary debates and inquiries 1997/98- . Only selected sources are available predating 1997/98. Older sources appear in Rigsdagstidende (1850-1953) and Folketingstidende (1953- ). Section A contains explanatory memorandums and section B contains reports from the committees.
Members of the Government may set up a committee or a commission to look into the need for legislation within a specific area. The results is typically a report (Kommissionsbetænkning) containing a draft bill, a detailed description of the bill , and a description of the background of the current legal structures of that particular area of law. By allowing experts as well as representatives of interest groups to take part in the meetings of the committee in question, the reports are known to represent important points of view and questions relating to the bill. Since 1951 these reports are organized numerically. All reports from nr. 1- are digitized and links to electronic editions are available through Statens Netbibliotek. Preparing for further actions, reports are circulated to concerned official parties, e.g. the courts and various public offices, for comments. Such reports, as well as other documents made available for comments, can be found here.
Under the authority of the Constitutional Act, European Community commitments, or 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 play the kind of authoritative role that it sometimes has in Common Law countries. However, this does 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 is no official reporting of courts’ decisions in Denmark. Though a database exists for court decisions, legal, economic and political obstacles prevent it from being made available to the public. 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. Juraportal provides a list of some of these databases. It also provides further links to lists of databases for 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 web site. Though his statements are not legally binding, they command authority and are adhered to by the administration. The Ombudsman’s statements are an indispensable source for researchers of administrative law.
Customary law is ordinarily viewed as denoting customs which have been followed continuously and 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, moreover, 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 writing of public legal offices.
Forholdets natur - translated as 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.
The Folketing has set up a national EC Information Centre. Their web site contains all relevant documents concerning the Commission's proposals from the Danish Government and Parliament, Danish EC precidencies, the European Affairs Committee of the Folketing etc. It is a practical entry point for an overview of Danish involvement in EC matters.
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. Denmark’s respect for the European Convention on Human Rights and Fundamental Freedoms and some Conventions of the International Labor Organization represents 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 useful additional resource.
6.3. Additional Resources
Danmarks Statistik. Statistisk årbog 2008 (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)