History of the courts
The Viking Age
Legislative, judicial and executive powers existed as long ago as the 10th century. At that time, the family was the most important executive element. Crimes and conflicts were resolved between families, and agreement was often reached on an appropriate punishment. Blood vengeance was one of the most common punishments.
Regional things (‘lagting’) and local rural things (‘bygdeting’) were established in the 11th century. Their main task was to resolve various types of disputes. Local rural things were established as a result of increasing cooperation between villages due to population growth. Regional things were also established due to population growth, larger villages and increased cooperation between villages.
During this period, it was realised that the judicial system needed to cover larger areas. King Haakon the Good changed regional things from being assemblies for all to assemblies for delegates. In other words, where previously the idea was for all free men to attend it became the norm to send delegates to things. The best known regional things from this time are Gulating (Western Norway) and Frostating (Trøndelag). Hålogaland, Eidsivating and Borgarting were established in the 12th and 13th centuries, but never became as influential as Gulating and Frostating. Codes of laws have also subsequently been found from Gulating and Frostating. The changes to things and the finds of codes of laws show that centralisation of the rule of law started as early as the 12th century.
The most common means of creating law in the Middle Ages was through customary law. This meant that people followed many legal rules, but they were not written down and established by any public authority. Customary law is still in use today, although it is most widespread in countries with poorly developed legal systems. However, customary law is also used in, for example, international law, in national areas such as constitutional law and administrative law, and in parts of civil law and tort law.
The Middle Ages
In the Middle Ages, the ‘kingdom’ gained more power and eventually fulfilled all the roles of the legislative, judicial and executive branches of power. The church fulfilled the same roles as the king and tugs of war often occurred between the parties concerning who should have the most power.
During the Middle Ages it became important to draw up common laws. In 1274, the old Medieval Scandinavian laws (local laws) were reworked and renamed the national law by King Magnus the Lawmender. The law was meant to apply to regional things and, to some degree, local things. The law was viewed as an administrative assembly of Norway (the national assembly has been dated to 1030). The national law also brought with it changes to the judicial and executive areas of the legal system. Systems were introduced for publicly appointed law speakers. They were tasked with chairing thing negotiations between different parties. More regional things were established, and these were located in a town or other population centre. The question of guilt also changed from applying to the family to applying to the individual.
In the Middle Ages, the legal system saw both centralisation and the beginnings of bureaucratisation and professionalisation.
The union era
Norway’s union era lasted almost 400 years. During that time, Norway was in a union with either Denmark, Sweden or both at the same time. The union era influenced the structure of all of the parties’ legal systems. During the period, the legal system became standardised and more professionalised and bureaucratised. The union between Norway, Sweden and Denmark started as a personal union. In other words, the countries had the same king/regent, although they were meant to have their own administrations.
The district recorder system was introduced in rural things in 1591. Initially, district recorders were not judges, rather their job was to help formulate and write letters setting out judgements. The Norwegian term for district recorder, ‘sørenskriver’ derives from the Norwegian words for ‘sworn’ and ‘scribe’. In 1634, district recorders were given the status of judges, together with jurors. Pursuant to King Christian IV’s Norwegian law of 1687, district recorders became the sole judges in most types of cases. District recorders have held this status ever since. Since district recorders were sole judges, the practice right up until the 1960s was to create new district recorder offices when the workload for one office was too much.
Norwegian cases were first heard in either a rural thing or a city thing. From there, cases moved on to regional things and then to the King’s Bench in Christiania (established in 1667). Before then, the Herredagen/Rettarting was Norway’s version of the Supreme Court. The first Herredagen (‘Day of the Lords’) was held in 1539 and was comprised of both Norwegians and Danes. It was meant to apply Norway’s national law. After Denmark established a supreme court in 1661, Norwegian cases could be appealed to the Danish Supreme Court. This proved a setback for some since the Danes had little familiarity with Norwegian laws and legal thinking and could thus easily fall back on basing decisions on their own laws.
The supreme court was subordinate to the king and prior to 1771 all of the decisions made by the Danish Supreme Court had to be placed before him. This changed in 1771, except in the case of death sentences. During the union era, attempts were made to increase the separation between judicial and executive power, at the same time as the king maintained his position as the supreme legislative power.
The law that applied in Norway was Magnus the Lawmender’s national law. In Denmark it was the local laws (Jyske, Skånske and Sjællandske). In the 17th century, a need arose to renew the old laws. This resulted in an amalgamation of Danish and Norwegian laws. The national law was replaced by the Norwegian Law (1687), which was based to some degree on the Danish Law (1683). This was a particularly positive development for the Danish Supreme Court since it could now simply apply two codes that were almost the same instead of two very different ones.
Principle of the separation of powers
The French philosopher Montesquieu and his treatise ‘The Spirit of the Laws’ from 1748 is regarded as the philosophical basis for the principle of the separation of powers. He wanted to prevent legislatures simultaneously being the executive branch of government and wrote: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.” Montesquieu argued that the people might rise up against the king, and this is exactly what happened in France in the late 18th century.
At the time, France was experiencing the after-effects of several wars, economic difficulties and an imbalance in the division of power. France was a hierarchal society where the king was at the top and had unlimited power. It was a so-called an absolute monarchy. After him came the clergy, the nobility and finally the bourgeoisie (everyone from merchants to peasants). France experienced a revolution in 1789. The revolution broke out because the people and the Enlightenment philosophers wanted a better division of power. It resulted in more power for the people and France transitioning from a monarchy to a republic.
The Norwegian Constitution of 1814
As mentioned, the French philosopher Montesquieu developed the principle of the separation of powers, which entails the separation of legislative, executive and judicial powers.
Montesquieu’s principle of the separation of powers played a key role in the formulation of the Norwegian Constitution of 1814. The King became the executive power, the Storting the legislative power and the courts the judicial power. Unlike other constitutions from this period, the Norwegian Constitution was liberal. For example, it was based on the principle of popular sovereignty.
Norway got its own supreme court in 1815. The Norwegian Constitution applied even though Norway ended up in a union with Sweden in 1814. Therefore, Norwegian independence in 1905 did not result in any changes to the Norwegian legal system or legislation.
The war years 1940-1945
The Supreme Court was involved in the political arena on three occasions during World War II. It constituted an Administrative Council that was an administrative body for those parts of Norway that were under occupation. A short time afterwards, the Supreme Court formulated an historic declaration that clarified that despite the King having left the country he had not abandoned his duties. Towards the end of 1940, all of the justices of the Supreme Court resigned their offices. They did so after the occupying power tried to impose rules that the Supreme Court felt affected their constitutional position. A new ‘supreme court’ was established in 1941. This was comprised of Nazi sympathisers who were later found guilty of treason in the Supreme Court. Since all of the lower courts of justice were in operation during World War II, it was not only the Supreme Court that was affected when various changes were introduced in the administration of justice in Norway. The most obvious of these was the introduction of the death penalty for serious offences and offences against public order.
The two-instance reform and elimination of juries
In 1995, amendments were made to the Criminal Procedure Act that entailed all cases first being heard by a rural district or city court. Thereafter, decisions could be appealed to a court of appeal (this is often referred to as the ‘two-instance reform’). Previously, the most serious criminal cases were heard by a high court with a jury as the court of first instance. The main purpose of the reform was to give the accused an opportunity to have the evidence concerning the question of their guilt assessed twice. The amendments were adopted in connection with the signing of the International Covenant on Civil and Political Rights (ratified in 1966) and the Convention on the Rights of the Child (ratified in 1991).
The jury system remained in place until 2017. The system was used in cases where the maximum sentence could be up to six years in prison. Since 2018, such cases have been heard by a court composed of two professional and five lay judges.
International conventions
Several human rights conventions were established in the aftermath of World War II (link to the Ministry of Foreign Affairs’s website). Norway is a signatory to many of these, not least the European Convention on Human Rights (ECHR). Upon signing it, Norway became bound by the Convention’s articles in international law. As far as Norway itself was concerned, the articles were not enacted in Norwegian law and thereby become Norwegian law (lovdata.no) until 1999. This means that in the event of a conflict, Norwegian law must give priority to the ECHR.
Sami people and the legal system
Indre Finnmark District Court was established in 2004 for the specific purpose of addressing the Sami dimension (language use and cultural/legal authority) within the courts. Article 108 of the Constitution of the Kingdom of Norway states: The authorities of the state shall create conditions enabling the Sami people to preserve and develop its language, culture and way of life.
The court changed its name to Indre og Østre Finnmark District Court in 2021.
Clarification of the separation between the executive and judicial powers
In 2002, the separation between the legislative and judicial powers was marked more clearly with the establishment of:
The Norwegian National Courts Administration
The Advisory Council for the Appointment of Judges
The Supervisory Committee for Judges
The history of land consolidation
There is a long history of land consolidation in Norway. The first rules for certain forms of land consolidation stretch back to Frostating law and Gulating law. Magnus the Lawmender’s national law from 1274 also contained rules for land consolidation that ensured everyone parcels of land commensurate with their annual tenancy fees. “Thus it shall be administered such that everyone receives parcels of land that are equally wide, equally long and equally good in relation to their tenancy fees” says the national law. The text of the law primarily applied to tenant farmers. Furthermore, every user – landowner or tenant farmer – could demand that their section be separated out from joint ownership or joint operation. The separated parcels would be marked with boundary stones supported by two or three ‘witness’ stones.
The land consolidation provisions in the national law were continued in the Norwegian Law of 1604 and – without significant changes – in the Norwegian Law of 1687. The exchanging of jointly owned forest land started in the 18th century. Towards the end of the 18th century, the issue of exchanging strip farmed land was raised.
1821 – the first specific land exchange act
The ‘Act relating to the exchange of land and forest commons’ was adopted on 17 August 1821. According to the Act, land exchange with respect to joint ownership and strip farming should generally be resolved amicably between the parties themselves. Where an amicable solution could not be reached, the exchange could be arranged by a court composed of the district recorder and four appraisers appointed by the bailiff.
The exchange of commons pursuant to the 1821 Act did not go far towards its goal of abolishing commons in Norway. A commission was appointed, and its work resulted in a new Land Exchange Act (‘Act relating to the exchange of land and forest’ of 12 October 1857). Pursuant to the Act of 1857, land exchange was carried out by a land exchange officer and two men appointed by the bailiff. The land exchange officer was a civil servant. He needed to be skilled in property formation, land surveying and mapmaking. Most land exchange officers had backgrounds as military officers. The Act of 22 May 1897 tasked the Norwegian Agricultural College in Ås with training land exchange candidates.
The Act of 1857 and subsequent Acts have produced a system in which official land exchange (land consolidation) takes places in a court with an expert judge.
Competence to resolve disputes
A new Act was adopted in 1882 that assigned responsibility for land exchange to a special court, the land exchange court. According to the Act of 1821, disputes concerning ownership rights, easements and other rights within the area being exchanged were to be decided by judicial decision.
The area being exchanged is the area covered by land consolidation.
With the Act of 1882, land exchange courts gained legal authority to resolves disputes between the area being exchanged and neighbouring properties, for which there was a great need. After 1882, it was suggested several times that the land exchange courts should be given the competence to resolve property boundary disputes without this being part of a land exchange case. A statutory amendment in 1934 provided legal authority to hear boundary marking as separate cases. Prior to 1934, the legislature’s attitude was that individual boundary disputes should be heard by the courts of justice.
Land exchange becomes land consolidation
The Land Consolidation Act of 1950 expanded the competence in boundary marking cases to also include boundaries of perpetual easements. The authority of the land consolidation courts in boundary marking cases has not been geographically delineated and also includes cities, towns and villages.
The Land Consolidation Act of 1950 replaced the term ‘land exchange’ with ‘land consolidation’.
Legal clarification as a new type of case
When the Land Consolidation Act of 1950 was replaced with the Act of 1979, legal clarification was introduced as a new type of case. Legal clarification involves clarifying the current legal position in an area where there is joint ownership or legally based joint use.
In the same way as for boundaries and legal clarification, the land consolidation courts have developed judicial competence as courts of valuation. Land consolidation courts have, particularly with the introduction of the Act of 1979 and subsequent amendments, been assigned competence to perform various kinds of appraisals. One important change was that the land consolidation courts gained the authority to procure land for public roads and railways through land swaps. The legislative review that commenced in 1999 expanded this legal authority.
In 2006, judicial mediation was introduced in boundary marking and legal clarification cases.
The current Land Consolidation Act
The current Land Consolidation Act came into force on 1 January 2016. The Act contains several important reforms, including a simpler appeal system. Land consolidation appeal courts were abolished with the introduction of the new Act, meaning that all appeals must be heard by a court of appeal.
From the Land Exchange Service via the Land Consolidation Service to the land consolidation courts.
The history of the organisation of land consolidation work is closely related to the development and revision of the land exchange and land consolidation Acts. On 1 January 1859, the Land Exchange Service was established with the coming into force of the Act of 1857. It was called the Land Exchange Service until 1951 when it changed its name to the Land Consolidation Service. The new Land Consolidation Service included all land consolidation courts, land consolidation appeal courts and administrative and professional support systems, such as the photogrammetric department, land consultants, national leadership and county land consolidation offices.
A number of organisational changes have been implemented in the past 20-25 years. In 1985, the administration of the Land Consolidation Service was changed such that it was organised by counties. County land consolidation offices became regional administrative units. This organisational structure did not last very long. Since 2002, every land consolidation court has constituted its own administrative unit. At the same time, the land consolidation courts became the common name for land consolidation courts and land consolidation appeal courts.
In 1992, the number of land consolidation appeal courts was reduced from nine to five. On 1 January 2006, administrative responsibility was transferred from the Ministry of Agriculture and Food to the Norwegian National Courts Administration in Trondheim. The number of land consolidation courts was reduced as a result of a reorganisation in 2001-2002. In the period up to 2016, there were 34 land consolidation courts and five land consolidation appeal courts. The land consolidation appeal courts were closed from 1 January 2016. Courts of appeal are now responsible for appeals from the land consolidation courts.
The land consolidation map as a historical document
The end products of a land consolidation case are a court record, boundary markers and a land consolidation map. In the olden days, boundary markers were often placed boundary stones with witness stones and an engraved cross, crosses in rock and old pine trees with a cross carved into them. In more recent times, boundaries have been marked with metal bolts.
All boundaries that a land consolidation court marks in the terrain are surveyed so that old boundaries can be reconstructed where boundary markers are missing. These days, the coordinates of boundaries are also recorded.
After putting out the boundary markers and surveying them, the boundaries are drawn on a land consolidation map. In addition to the boundaries, other information such as buildings, roads, bridges and other objects are drawn onto the map. There are land consolidations maps dating back to the 1860s. Old land consolidation maps are of great value from an historical perspective. While new technologies (GPS, digital map processing, etc.) have changed the production method, the final products are the same as before: a court record, boundary markers and an accurate land consolidation map.