Friday, February 21, 2014

Henrik Wergeland 1808 – 1845. Source Wikipedia


by Carsten Smith
Chief Justice of the Supreme Court

The Norwegian Constitution of 1814 is the oldest constitution still in effect in Europe. One of the main reasons that it still stands as the basis of our laws – albeit with several amendments – is the liberal thinking and great emphasis on protecting the basic rights of the individual that characterize the document. Only the “Jewish clause,” which stated that Jews were prohibited from entering the country, was inconsistent with the Eidsvold generation’s enthusiasm for the Enlightenment  era’s idea about human rights.

Nevertheless, the clause was indeed part of the Constitution, and marks a dark chapter in the history of our country. The “Jewish clause,” also represents a gap in development in terms of legal history between Norway and its neighbors In March 1814, Denmark passed a law, in unison with other Western European legislation, granting Jews more civil rights, and thereby making Jews and Danes equal to a great degree.

The Eidsvold Assembly, however, did not adopt this legislation. The “Jewish clause” stated that Jews were “still” barred from entering the country and this may have been due to the Norwegian National Assembly’s prejudices being reinforced by legal ignorance. Because at the time, Portuguese Jews had privileges in Norway and passports were issued to Jews who wanted to visit the country for business purposes.

The Constitutional draft that was actually favored by the Norwegian National Assembly, the Adler-Falsen draft, guaranteed full religious freedom, like the 1789 French Declaration of the Rights of Man and of the Citizen. However, the modifications began in the Constitutional committee’s eight article, which decreed that the Evangelical Lutheran teachings would become the country’s official religion. Nevertheless, all religious sects would be permitted to practice their religion freely with the following provision: “Jews are still not permitted to enter the kingdom.”

While the stated reason for prohibiting Jews from immigrating to Norway was religion the grounds were in fact more complex. Economic and political considerations were at least as important. People were apprehensive about their business interests. It was maintained that Jews did not want to assimilate, which meant there was a risk that they would try to form their own state within the state. But there were also many who spoke out against the intolerance that would bar a group of fellow human beings from becoming part of the society, and who valued the Jews’ contribution to the country’s economy and value system.

The article was adopted by the Norwegian National Assembly on April 16, and paragraph 2 of the first Constitutional draft incorporated the clause prohibiting the Jews from entering the country. The decision met with opposition in the Assembly, but this resulted in further limitations on religious freedom and immigration laws: only Christians had the right to practice their religion freely, Jesuits were also barred from entering the country, and monastic orders “(would) not be tolerated.”

As the editorial committee put the finishing touches on the Constitution, the law was tightened once again, as the clause guaranteeing free religious practice was dropped entirely. The Constitution had now strayed a long way from the Adler-Falsen draft, with its complete religious freedom. 

Henrik Wergeland made his counterattack in 1839, sending the Parliament a proposal for a Constitutional amendment. At the same time, a generational rebellion took place, and Henrik’s father, Nicolai Wergeland, who had been one of Eidsvold’s greatest supporters of the “Jewish clause,” changed his position on the issue. Henrik threw himself into this spiritual battle with all his talents. 

Parts of his poetry collection The Jew are among our foremost cultural treasures. He also dedicated himself untiringly as a lobbyist and letter writer, in newspaper debates and series of articles. In addition to and in contrast to writing poetry, he also produced comprehensive contributions of factual prose.

The Supreme Court soon came into the picture as well. The Parliament asked the Court whether the final clause of the Constitution could be adopted, obstructed Wergeland’s proposal. The adoption of the article containing the “Jewish clause” at Eidsvold laid the ground work for this approach. Both the request and the approach to the issue were quite extraordinary by today’s standards.

Fortunately, in a seven-to-two decision, the Supreme Court overruled this challenge, emphasizing “the Constitution’s generally liberal inclination,” and adding that the matter of prohibiting Jews from entering the country “does not affect the spirit of the Constitution.” A Swedish observer writes of this joyous reaction to the Supreme Court’s ruling that the Men of Eidsvold did not turn their backs on the Norwegian people, a “fideicommissum” of the darkness and hatred of religion of the Middle Ages.

The Parliament also approached the Theological Faculty, which plainly concluded that the official religion and state church’s position held the opposite opinion. The stock exchange, rather than the church, formed the opposition’s center.

When the Parliament voted on the issue in 1842, Wergeland’s proposal garnered a majority of 51 votes to 43, but not the two-thirds majority necessary for the adoption of a Constitutional amendment. Wergeland himself wrote a temperamental report on the parliamentary debate, which he saw as a struggle between humanity and barbarism, between light and darkness. 

On that day the sun went dark in the parliament. But instead of being discouraged by the outcome, he maintained his usual optimism. Not only had the proposal nearly achieved the necessary majority of votes, but some of the most prominent representatives in parliament had backed it as well.

Supporters of the proposed amendment cited human rights and the spirit of the Constitution, while the opposition spoke of the mass immigration that could ensure if the borders were opened. The “yes” side held that the prohibition went against the church’s commandment of “Love your neighbor,” while the “no” side argued that the Jewish teachings were in conflict with those that the Christian state considered right and moral. 

The supportive portion of the business community believed that the Jews, with their skills and capital, would bring development to Norway’s economy, while the more apprehensive faction feared that the Jews, with their superior business skills and their ties with the outside world, would export capital from Norway.

After the proposal’s first defeat it was taken up, again in vain, in 1845 after Henrik Wergeland’s death that same year. It was then proposed, again in vain, in 1848, but with increasing support, until finally, the fourth time, it received the necessary majority of votes – 93-10. The debates during these years were comprised of variations of the same arguments used in the prior debates.

 The amendment was adopted in large part because of representatives from rural districts, with their majority, began moving in a positive direction. The Parliament ratified the amendment on June 13, 1851. On July 21, with the sanction of the king, the “Jewish clause” became history. Meanwhile, broader legislation still contained a clause prohibiting Jews from entering the country. 

But on September 24 of that same year – 150 years ago on this very day – the king sanctioned amendments to the law, which secured Jews the right to enter the kingdom.  Jews now shared the same rights that other immigrants enjoyed. At the same time, Norway had no law defining who the country’s citizens were. Everyone who lived in the kingdom, including the Jews who moved there, was entitled to the same civil rights.

I speak as a representative for the administration of justice, about a necessary legal reform to abolish discrimination which went against the very core of our legal philosophy. We know from the events that unfolded thereafter that this legal reform benefited our country. We also know form later events that laws and courts sometimes lack the power to combat organized malice.

Norway’s relationship with Jews and other minorities constitutes a painful chapter in the country’s history. It is therefore good to be able to shine the spot light on one of that era’s positive events and to honor our countrymen who helped changed Norway for the better.

Carsten Smith (1932) is a Norwegian judge and lawyer.He served as Dean of the Faculty of Law, University of Oslo (1977-79) and as Chief Justice of the Supreme Court of Norway (1991–2002).

Carsten Smith was appointed Reader in Law at the University of Oslo in 1960 and Professor of Law with a specialization in commercial and banking law in 1964. Among his many published works is Kausjonsrett. Carsten Smith was awarded the Grand Cross of the Royal Norwegian Order of St. Olav on 13 May 2003. In 1985 he received the Fritt Ord Honorary Award. He is a member of the Norwegian Academy of Science and Letters.

by Carsten Smith
Chief Justice of the Supreme Court

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