Researching Danish Law

by Rasmus H. Wandall

Rasmus H. Wandall is assistant research professor and post doctorial research fe

llow 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 Fello
w 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.

Published July 2006

Table of Contents
1. Geography and Socio-Political Overview
2. Comparative and Historical Notes
3. The Political System of Denmark
3.1. The Legislative Power
3.2. The Executive Power and the Local Municipalities
3.3. The Judicial Power
3.3.1. The Structure of the Courts of Justice
3.4. The European Community. The Danish position
4. Sources of Law
4.1. Written Law
4.1.1. The Constitution
4.1.2. Statutory Law
4.1.3. Regulatory Law
4.2. Precedents
4.3. Statements of the Parliamentary Ombudsman
4.4. Customary Law
4.5. Tradition of Culture (Forholdets Natur)
4.6. European Union Law
5. Human Rights and International Law
6. General Search Resources and References
6.1. Internet Resources
6.2. General Works of Introduction to Danish Law

1. Geography and Socio-Political Overview

The Kingdom of Denmark comprises of the territories of Denmark, the Faroe Island
s, and Greenland. Denmark is located East of England and north of Germany. It co
nsists mainly of the Peninsula of Jutland (Jylland), and the major islands of Se
aland (Sjaelland) and Fune (Fyn). The country is 43.094 square km. The Faroe Isl
ands 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 orien

ted profile. It maintains an egalitarian ethos, and holds strong ideals of econo
mic 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 disco
urse 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 ho
mogenous. Only 8 % of the Danish population are immigrants or descendants of imm

igrants (second generation). Major countries of origin are Turkey, Germany, Leba
non, Bosnia-Herzegovina, Pakistan, former Yugoslavia, and Somalia (Statistisk ?r
bog 2005. 44. Danmarks Statistik). In terms of religion, the population is chara
cterized by a relatively high degree of secularization. In the 2004 European Soc
ial Survey, 37 % were estimated not to belong to any particular religion or deno
mination while 63 % were estimated to belong to a particular religion or denomin
ation. Of the latter estimated group, 94 % were estimated to belong to the Luthe
ran Protestant Church, 2 % to Islam, and less than 1 % to other non-Christian re
ligions. Yet, the predominant part of the population clearly has a Protestant cu
ltural heritage. More than 80 % belong to the public church, the Lutheran Protes
tant Church.

2. Comparative and Historical Notes

Danish and Nordic law share several common denominators with continental Europea
n 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 dist
inctiveness. 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 var
ying degrees of attachment to continental law, see David and Brierley (1996), Zw
eigert and Ktz (1998), and Tamm (2002).

Denmark was administratively united already in the medieval time and has since t
hen 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 prominentl
y 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 Cano
n 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 is
sued in 1665. It constituted the monarchial powers of the King, hereunder his au
thority to legislate. Though absolutist, it is considered that the constitutiona
l form was an enlightened and benevolent one. The most significant piece of legi
slation 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 univer
sity 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 Euro
pean 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 Henri
k Stampe, who, inspired by the Enlightenment writers of the time, made several p
roposals for legal reform.

The 19th century, the century of the great law books of Prussia, Austria and Fra
nce, witnessed the emergence of what is considered modern Danish legal science t
hrough the works of Anders Sand?e ?rsted (1778-1860). The absolutist monarchy wa
s abolished (1848), Constitutional monarchy introduced (1849), and a Nordic lega
l cooperation took shape. To begin with only Norway, Denmark and Sweden took par
t in the cooperation, but after its independence in 1918, also Finland joined th
e 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 auton
omy of implementation and detail. Differently with the European Community, and l
ater the European Union, which Denmark joined in 1973. With the primacy of Europ

ean Law, the membership has had enormous consequences for Danish law in wide-ran
ging areas of law.

The Constitutional Act was revised in 1953, following the Second World War and t
he German occupation, and following the agreement of the European Convention for
Human Rights and Fundamental Freedoms (1950).

3. The Political System in Denmark

Denmark is a constitutional monarchy. The Constitutional Act of 1953 places the
legislative power with the King and the Parliament conjointly. The executive pow
er is vested in the King. Reference to the King in practice refers to the Govern
ment. The judicial power lies with the courts of justice. The Government may dis
solve 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 Minis
ter. The Courts of Justice have control over the Government and Administration a
nd may try the constitutionality of Parliamentary Acts. The Parliamentary Ombuds
man has right of scrutiny of the administration of the executive powers.
3.1 The Legislative Power
Royal authority is inherited in accordance with the Act of succession to the Thr
one 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 w
ho appoints and dismisses the Prime Minister and his ministers, and the King who
by signature gives royal assent to parliamentary approved bills. In practice th
e government is formed by the prime minister and it is the Government and the Pa
rliament 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. Pa
rliamentary 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 th
e bill. Once approved, the bill must receive Royal Assent and be made known publ
icly in order to acquire validity.
3.2 The Executive Power and the Local Municipalities
in practice the Pri
The executive power operates under the authority of the King
me Minister. He or she appoints and dismisses the individual ministers, each adm
inistrating different branches of state government. The main examples include th
e Prime Minister s Office, the Ministry of Foreign Affairs of Denmark, the Ministr
y of the Interior and Health, the Ministry of Finance, and the Ministry of Justi
ce. There are nineteen ministers at this time (May 2006). Each ministry typicall
y consists of a central department and a number of ministerial agencies under it
s jurisdiction.

Following the Constitutional Act of 1953 82 some public tasks are to be delegate
d to local municipalities. The extent and circumstances of the delegations is de
fined 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 re
gions. Each municipality is governed by an elected body of locally elected repre
sentatives.
3.3. The Judicial Power
The judicial court system of Denmark comprises 82 county courts, the Maritime an
d Commercial Court of Copenhagen, the Eastern and the Western High Courts and th
e Supreme Court. The Special Court of Indictment and Revision hears cases of dis
ciplinary sanctions against judges and re-opening of criminal cases. The Court o
f Impeachment hears cases in which Ministers are charged with violating their du
ties as Ministers. A recent act, reforming the organization of the judicial cour
ts 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 Constitut
ional Act of 1953 64. Judges furthermore enjoy personal independence. They canno
t be removed against their will and may be dismissed only by order of the Specia
l Court of Indictment and Revision. Similar safeguards are conferred on deputy j
udges. To further ensure the independence of the judiciary, The Danish Court Adm
inistration, was established in 1999 to manage the appointment of judges and the
economic and organizational administration of the Danish courts. The administra
tion is formally independent from the executive power and governed by an executi
ve committee.
3.3.1 The Structure of the Courts of Justice
County courts have county jurisdiction and the two High Courts regional jurisdic
tion. Only the Supreme Court has national jurisdiction. County Court decisions a
re appealable to the High Court. High Court decisions can be appealed to the Sup
reme Court. As a general rule a case can be appealed only once. Small claims cas
es cannot be appealed at all. Decisions of general public interest can be grante
d leave of appeal by the Board of Appeal.

Contrary to other countries, the Danish judiciary does not have special courts f
or administrative matters, criminal matters, civil matters, or for constitutiona
l 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 t
he judicial judge and in High Court cases they decide on the question of guilt a
lone and on the question of criminal sentence together with the judicial judges.
3.4 The European Community. The Danish position
Since Denmark joined the European Community and later the European Union, its le
gal system has been influenced significantly and directly by European Community
law. Today, a large part, and by some measures an increasing part, of Danish leg
islative 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-Trea
ty, four Danish reservations to the Treaty were agreed upon (the Edinburgh agree
ment). First, Denmark does not participate in the union-citizenship. This was la
ter incorporated into the Amsterdam Treaty. Second, Denmark does not participate
in the European monetary union. Third, Denmark does not take part in supra-nati
onal 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 affai
rs.
4. Major Sources of Law
Major sources of law in Denmark include the Constitutional Act, statutory legisl
ation, regulatory statutes, precedent, and customary law. The recognition of tra
dition of culture (forholdets natur) is disputed though it does bear significant
ly on Danish law in a variety of contexts. Statements of the Parliamentary Ombud
sman are of particular relevance in the area of administrative law.

A book in any similarity to the Code Civil has never been incorporated into Dani
sh law. Nevertheless, Danish law is characterized by extensive bodies of systema
tic and written law. The area of private law is dominated by a range of individu
al 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, a
nd the area of administrative law by two general statutory acts of public admini
stration (Forvaltningsloven og Offentlighedsloven) and a complex body of substan
tive, sector specific statutory acts.
4.1 Written Law
4.1.1 The Constitution
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 versio
n of the Constitutional Act is available online. An official Danish version can
be found on www.retsinfo.dk.

4.1.2 Statutory Law

Statutory legislation has primacy over other national written legal sources, sav
e for the Constitutional Act. A large number of individual statutes have been ad
opted to regulate individual areas of law. Examples include The Danish Penal Cod
e (Straffeloven), The Administration of Justice Act (Retsplejeloven), the Act of
Commerce (K?beloven), The Act of Contracts (Aftaleloven), The Insolvency Act (K
onkursloven), and The Heritage Act (Arveloven). These are but a few examples.

The official versions of new statutory laws appear in the official journal Lovti
dende A, published every Tuesday and Friday. The laws are available directly onl
ine from the database on www.retsinfo.dk. This database, administered by the sam
e 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 parliame
ntary resolutions. Statements from the Danish Ombudsman and administrative decis
ions 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 inq
uiries. 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, ca
se-law as well as a wide range of published articles (those published in journal
s 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 a
re likewise indispensable for research purposes and, together with Karnov, serve
as a principal tool for practitioners to clarify uncertainties of interpretatio
n and discretion.

The legal web site maintained by the Faculty of law, University of Copenhagen, c
ontains an updated list of some (unofficial) translated Danish statutes. Some st
atutes have also been published in English. See e.g. The Danish Criminal Code, T
he Danish Corrections Act, and The Administration of Justice Act (Excerpts). Mar
lene 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.
4.1.3 Regulatory Law
Under the authority of the Constitutional Act, European Community commitments or
under national statutory laws, the administration may issue regulations, typica
lly in the form of bekendtg?relser, cirkul?rer, and vejledninger. The first of t
hese is characterized by its power to regulate the legal standing of citizens, w
hile the latter two are used as regulatory tools on lower level administrative a
gencies. Bekendtg?relser are published in Lovtidende A, while cirkul?rer and vej
ledninger are made available in Ministerialtidende, also published by Retsinform
ation. All are available online in Danish.
4.2 Precedents
Though considerable legal power is vested with the judiciary, court practice doe
s not in any way have the same authoritative role as in Common Law countries. Th
is 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 use
d to test the legality of statutes and regulations, to interpret statutes, to pr

ovide 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 fro
m the higher courts, have been published since the early nineteenth century. Sin
ce 1867 Ugeskrift for Retsv?sen 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 no
w 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 w
ww.juraportal.dk provides a list of some of these databases. The same address al
so gives further links to lists of databases for the law and the decisions of bo
ards and administrative authorities. Published and edited case collections can b
e found in most substantive areas of law, either for teaching purposes or for pr
actitioners. The two principal publishers are Dj?f Forlagene and Forlaget Thomson
.
4.3 Statements by the Parliamentary Ombudsman
The Parliamentary Ombudsman issues statements about the legality and desirabilit
y of administrative decisions and conduct. His most important statements are pub
lished yearly and are also available on his website. Though his statements are n
ot legally binding they are considered a very high authority and are adhered to
by the administration. It is an indispensable source when researching administra
tive law.
4.4 Customary 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 limi

ted areas of contractual practices, land registration, and criminal law; it is r
elevant in relation to some areas of public administration and constitutional ma
tters. 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 are
a of law in question.
4.5 Tradition of Culture (Forholdets natur)
may be viewed as
Forholdets natur in English translated to tradition of culture
a reference to the legal and cultural tradition as a determinant for a legal ana
lysis or for the ways in which other legal sources are applied. Tradition of cul
ture may refer to considerations of fairness, equality, and feasibility as to so
cietal needs and the common evolution (Torben Jensen in UfR 1990 B 441). The nat
ure of the tradition of culture as a source of law remains the subject of consid
erable academic dispute.
4.6 European Union Law
Regulations issued by the European Union are directly applicable in Denmark and
have primacy over national law. European Union Decisions are to the extent stipu
lated directly applicable in Danish Law. As a main rule Directives must be incor
porated in Danish law in order to have effect. Incorporation takes place as mini
sterial regulation or as parliamentary statutory legislation. European Court pra
ctice applies directly in national law. EC legal sources are available in all Eu
ropean Union languages on EUR-Lex.

5. Human Rights and International Law

Danish Law recognizes a principle of dualism and requires international legal so
urces to be incorporated to have legal effect for and against its citizens. Howe
ver, the last two decades have seen the recognition of international legal sourc
es as means for safeguarding the rights of individuals. The respect of the Europ
ean Convention on Human Rights and Fundamental Freedoms and some Conventions of
the International Labor Organization represent major examples. Denmark has ratif
ied and incorporated all major Council of Europe and United Nations Human Rights

instruments. The Danish Institute for Human Rights is a good additional resourc
e of data and literary references.

6. General Search Resources and References

6.1 Internet Resources
* The websites of The Institute of Legal Studies at the University of Aarhus and
of The Faculty of Law at the University of Copenhagen both provide overviews an
d instructions in searching for legal literature and legal sources. The latter p
rovides by far the most elaborate and systematic entrance into the substance are
as and sources of Danish law.
* Retsinformation provide access to written statutory and regulatory legal sourc
es, and the Danish Parliament presents both passed and rejected bills and the do
cuments of their Parliamentary process, online.
* The official web-site for Denmark contains links to administrative agencies, t
o the courts of justice, local municipalities, embassies, as well as to statutor
y laws and regulations. Furthermore, it contains a search-engine for all employe
es in the Danish administration.
* The web-site for The Royal Danish Library contains lists of on-line databases
for legal research. Importantly, this includes Dansk Juridisk Bibliography 19881998, and 1999-.
* The main library catalogue of the Royal Danish Library contains references to
all publications published in Denmark.
* OECD country surveys of Denmark provide updated insights into the social and e
conomic indicators of and conditions in Denmark as well as the challenges the co
untry faces. Restricted access.
6.2 General works on Danish Law:
* Danish Law in a European Perspective. B?rge Dahl, et al. eds., 2nd ed. 2002. C
ontains introductions and substantive articles on most areas of substantive law.
*
*
*
*

Criminal Law in Denmark. Peter Garde, et al. 2nd ed. Djoef Publishing. 2004.
Danish Insolvency Law: a survey. Lindencrone et al. Djoef Publishing. 1996.
Danish Business Law. Bent Iversen et al. Djoef Publishing. 2nd ed. 2000.
Danish Insurance Law. Preben Lyngs?. Kluwer Law and Taxation Publishers. 1992.

* Labor law and industrial relations in Denmark. Ole Hasselbalch and Per Jacobse
n. Kluwer Law International. 1999.
* Civil Procedure in Denmark. Erik Werlauf. The Hague, Boston. Kluwer Law Intern
ational; Copenhagen. DJ?F Publishing. 2001.
* Environmental Law in Denmark. Ellen Margrethe Basse. The Hague, Boston. Kluwer
Law International. 2000.
* Intellectual Property Law in Denmark. Thomas Riis. The Hague, Boston. Kluwer I
nternational. 2000.

Additional References used in the article

Danmarks Statistik. Statistisk ?rbog 2005 (Danmarks Statistik)
Ditlev Tamm, The Danes and Their Legal Heritage, in Danish Law in a European Per
spective, 41 (Ditlev Tamm, et al. eds., 2002)
Rene David & John E.C. Brierley, Major legal systems in the world today: an intr
oduction to the comparative study of law (3rd ed., Stevens 1996)
Konrad Zweigert & Hein Ktz, Introduction to Comparative Law (3rd ed., Clarendon P
ress 1998)