Norwegian law in the global arena
The world outside is knocking on Norway’s door. This creates new and challenging issues for legal professionals that will change the legal landscape in the next few years.
The University of Bergen’s (UiB) Research Group for Criminal Law and Criminal Procedure is working on a number of projects to identify what happens when national criminal law must adapt to outside forces, yet retain its legitimacy and remain consistent on the national level.
One subject that has been discussed by the UiB researchers is the question concerning criminalisation of preparatory acts. This question has been the focus of new attention in the aftermath of the terrorism attack in Norway 22 July 2011.
National vs. international
Jørn Jacobsen is postdoctoral fellow at UiB’s Faculty of Law and winner of the Nils klim Award for young researchers. He believes that if we use criminal law too extensively to control individuals, we may end up with a society of disempowered citizens.
– Society is built on trust. Citizens are entrusted with the capability to decide what is right and wrong. In a world where the law doesn’t allow any scope for people to find out for themselves what is right and wrong, society will not create responsible people, says Jacobsen.
In the project Theory in Practice: Risks and Responses in Criminal Law, the potential legal consequences of the so-called «high-risk society» is being studied. Jacobsen and Associate Professor Linda Gröning lead the project. What happens to criminal law in a society that becomes riskaverse and more focused on crimeprevention measures?
– Criminal law has always had a complex relation to risk. It has sought to deal with some of the most important or manifest risks, while it at the same time has been restricted in regard to more general or common societal risks. With the current awareness of and emphasis on risk, there is a corresponding drive towards extending criminal law into new spheres. The question is how one rationally can restructure criminal law in this regard without coming into conflict with the important values that have motivated the traditional solution, says Gröning.
Beyond the questions faced by criminal law, there are sectors of society where more ambivalent standards prevail. International trade is one such area. PhD candidate Birthe Eriksen studies corporate governance and uses whistleblowers as an example of changes ahead. She points out that whereas Norwegian legal research culture has traditionally been more orientated towards a European tradition, her research theme is more influenced by AngloAmerican legal culture.
– Legislation on whistleblowing was regulated early in the United States and Britain. Hence, legislation there is more advanced than in continental Europe. One such example is Britain’s Public Interest Disclosure Act of 1998. In Norway, the right employees have to warn about wrongdoing in their workplaces wasn’t included in the Working Environment Act until 2007, says Eriksen.
There is a growing consensus in Norway and elsewhere in Europe that companies must be made responsible for matters that influence society at large. In a globalised world, the debate on corporate social responsibility influences national legislation as well.
It is increasingly common for legislation to set objectives for organisations, but to leave it to the companies themselves to figure out how to meet these objectives. Today, business managers need to navigate a myriad of legal and non-legal norms to meet stakeholders’ expectations.
Whistleblowers can play a key part in safeguarding shareholder and stakeholder interests by uncovering unacceptable conditions. But how whistleblowing as a regulatory mechanism works in practice is still quite unclear.
– Whistleblowing has not been a focus of Norwegian research, yet there is a great need to define our legal regime in relation to the international debate. In the US and Uk, the courts and government have more expertise in these matters, says Eriksen.
According to Eriksen, Norwegian law is more focused on the traditional relationship between employee and employer concerning the employer’s freedom of speech versus her loyalty towards her employer, than it is on whistleblowing as a regulatory mechanism. There should be more focus on shareholder and stakeholder interest in the consequences of whistleblowing. Eriksen believes this will strengthen democracy and make big business more accountable. Eriksen also questions whether the Working Environment Act is the best framework for developing whistleblowing law.
– There are a number of issues, rules, and mechanisms that have implications for the topics of corporate governance and corporate social responsibility. The biggest challenge now is to handle the totally new ways in which private and public law interact, she says.
The legal rights of «the others»
Another feature of the last few years is the increase in immigration. This, combined with the financial crisis, has sparked a growing debate about the future of the welfare state. This is being researched in the project Provision of Welfare to «Irregular Migrants» (PROVIR), where legal experts and social scientists work together to study the legal position of so-called illegal immigrants and how they are treated in different countries.
– Some people have always been on the margins of society. But with the growth of the modern welfare state, the differences between those on the inside and those on the outside has become more urgent, says Professor Karl Harald Søvig.
The legal experts involved in the project are primarily looking at national and international rules for welfare benefits – such as health care – provided to irregular immigrants. They are also exploring underlying political and legal values behind legislation.
Cleaning up the regulations
– What is so exciting about this project is examining all the contrasting regulations in this field. Whereas human rights legislation is more concerned with the rights of immigrants, the EU is also concerned with protecting its geographical area against unwanted immigration, says Søvig.
– The European Convention on Human Rights, which is incorporated into Norwegian law and takes precedence over national legislation, has no specific provisions about this, and the European Court of Human Rights has few cases on the topic. It is mainly concerned with classic political and civil rights.
All this makes it hard to define which rules and laws really apply in each case.
– There is broad agreement about protecting the rights of children. Where adults are concerned, each European country has quite a lot of freedom to set its own standards for what social welfare benefits to offer immigrants. This is why we see growing reluctance in many countries to ratify conventions that provide widespread rights to certain groups in society, says Søvig.
One thing is certain: both Søvig and his colleagues will have enough challenges in the next few years when it comes to looking at how Norwegian national law is affected by the growing internationalisation of society.
This article was first printed in UiB's research and education magazine Hubro international 2012/2013. Translated from the Norwegian by Sverre Ole Drønen.