Academic projects
Kierulf is currently involved in three main projects. The first is a development for publication of her PhD dissertation «Taking Judicial Review Seriously – the Case of Norway» (2014), which portrays Norwegian judicial review in a normative and historic perspective, and shows how, in the field of freedom of expression, this form of judicial authority has served to strengthen rather than challenge Norwegian democracy.
Together with Malcolm Langford (Centre on Law and Social Transformation, University of Bergen and Chr. Michelsen Institute) og Thomas M. Keck (Maxwell School of Citizenship and Public Affairs Syracuse University) her second project is titled “Who Benefits from Free Speech? Investigating Claims of Judicial Bias”. The legal right of free speech is sometimes criticized for protecting resourceful societal groups rather than the vulnerable minorities held by some central free speech theories to be in particular need of speech protection. This study compiles, analyses and evaluates qualitative and quantitative data from all Norwegian Supreme Court free speech cases, in order to examine what societal groups are the main beneficiaries of legal free speech protection in Norway. The study forms part of a larger interdisciplinary research project funded by the United States National Science Foundation with the aim of establishing a global database of free speech cases.
Her third project area is the human rights provisions of the Norwegian Constitution (NC). These provisions were amended to the NC in 2014, in a reform aiming to constitutionalize what were until then legally binding, but convention-based human rights.
Intended to codify norms already known and in existence, rights provisions have a dynamic character: Because a norm can never be determinative of its own interpretation in concrete cases, the implications of that norm in the particular cannot be discovered, but only created. Norms – and particularly generally formulated principles, such as human rights norms – thus have their details elaborated through judicial application. This philosophically and jurisprudentially well-known dynamic actualizes inquiries into the role of the judiciary in popular democracies: Judges are in Norway not elected, and thus have no direct democratic legitimacy. They sit without term limits, and are consequently not held accountable the same way as politicians either. Judicial authority needs a different justification than the political. Such justification becomes acute when judges limit the scope for political action, as can be the consequence of adjudication of constitutional rights-norms.
In “Grunnloven som irrelevant rettskilde” Kierlf comments the legal discussion over the Norwegian Supreme Court’s handling of human rights review in the post 2014 constitutional situation.
Kierulf questions how courts function in cooperation or opposition to the political through analyzing court legitimacy, normatively as well as from a social-historical perspective. One such analysis, of the legitimacy of the European Court of Human Rights, is published in «Rettsavklaring og rettsutvikling», Universitetsforlaget 2016. An analysis of the Norwegian Supreme Court will be published in «Høyesterett», Fagbokforlaget 2016.
Assessments of court power and authority is one intake into the research field of epistemology questioning functions and legitimate role of experts in modern democracies. Kierulf presented a separate study of these sides of the Norwegian Supreme Court authority at the workshop «Expertise and Democratic Accountability in Courts and Public Administration», which will be published as part of a special issue in 2017.
Kierulf also works on a commentary to the new rights provisions. She is a regular contributor to Norwegian and international media on questions of law in general and free speech law in particular, see Cristin the database for academic publications.
The project's main page is in Norwegian