Apr 16, 2025
The Norwegian Penal System in Criminal Law: Historical Development and Current Solutions
Introduction: From Outlawry to Modern Forms of Reaction
The Norwegian criminal justice reaction system has undergone significant development from the harsh punishments of the Middle Ages to today's more differentiated and individualized forms of reaction. This development reflects changes in society's view of the purpose and significance of punishment, from pure retribution to a more nuanced perspective where retribution, general deterrence, and individual prevention all play a role.
Historical Development of the Penal System
From the Medieval Penal System to the Enlightenment
In our ancient Norwegian laws, outlawry (utlegd) and fines were the main forms of punishment. Outlawry meant that the offender was cast out of society and could be killed by anyone without this resulting in punishment. Real liberty-depriving punishments did not exist in the ancient laws, although forced labor could be imposed in certain cases.
As the state became more organized, and the view emerged that it is the state's duty to punish crimes, the reaction system changed character. Outlawry was replaced by public death and corporal punishments. This was largely implemented already by Magnus Lagabøter's laws, but still, in the Norwegian Law of 1687, some provisions stipulated outlawry, which effectively meant exile.
In the late Middle Ages and early modern times, legislation included a rich variety of corporal punishments: whipping, branding, tongue cutting, amputation of a hand or two fingers. The punishments often reflected the idea that the punishment should mirror the nature of the crime.
The system of statutory fines to the offended party and the king was abolished only with the Criminal Law of 1842. Imprisonment was not widely used until the 17th century. Under the Norwegian Law, penal labor was a common punishment for many crimes, particularly theft, and the concept of imprisonment with bread and water was also known.
The Enlightenment and Humanisation of Punishment
The humanitarian ideas of the Enlightenment led to a substantial mitigation of the penal system, first in practice, later also in legislation. Branding and other mutilation punishments were abolished by law in 1815, as it was considered that they did not stand "in appropriate Harmony with the liberal Principles, the Constitution proclaims".
The use of the death penalty was gradually severely restricted. With the Penal Code of 1902, it was completely abolished for ordinary crimes, although it was maintained in the military penal code. During World War II, the scope of the death penalty was expanded, but by a legislative amendment in 1979, all provisions on the death penalty were removed from Norwegian law.
The Current Penal System
Main Punishments and Supplementary Punishments
The penal system in the Penal Code is outlined in §§ 15 and 16 of the law. The main punishments are:
Imprisonment
Preventive detention
Detention
Community service
Fines
In special cases, loss of rights may be used as a principal penalty. This can involve the loss of a public position or the right to hold certain positions or engage in certain activities.
The supplementary punishments include:
Loss of rights as mentioned in §§ 30 and 31
Ban on staying in certain areas (§ 33)
The difference between principal and supplementary punishments is strictly formal; a principal penalty can be imposed alone, while a supplementary penalty can only be imposed in conjunction with a principal penalty.
The original principle of the Penal Code was that multiple main penalties could not be imposed concurrently. However, this principle has gradually been overridden by several exceptions. In 1985, the Penal Code received a new § 26 a, providing general grounds for imposing a fine alongside a liberty-depriving penalty, even if the violated penalty provision does not expressly permit fines.
Individually Tailored Reactions
A characteristic feature of recent developments in penal law is the increased ability of the prosecution authority and the courts to choose a reaction that appears suitable and fair in the individual case.
In older law, the punishment was usually absolutely determined. Once the question of guilt was resolved, it was also resolved which punishment the offender would receive. In current law, the prosecution can, through a conditional or unconditional decision not to prosecute, spare the offender from having the case brought to court if considered most appropriate. The prosecution can also resolve a case by referring it to mediation in a mediation board.
The court usually has a wide sentencing range available, allowing consideration of all specific circumstances in the individual case. Typically, the court can choose whether to make the sentence conditional or unconditional. If the sentence is made conditional, conditions tailored to the specific case can be set. Community service can also be imposed instead of imprisonment.
Corrective and Preventive Measures
Parallel to the ordinary penal system, special treatment forms were developed for certain groups of offenders in the first half of the 1900s: the young, the mentally deviating, repeat offenders, vagrants, and alcohol abusers.
Such special measures were primarily based on individual preventive considerations. Important milestones in this development were:
The Guardianship Law of 1896
The Vagrancy Law of 1900
The Work School Law of 1928 (effective from 1951)
Provisions on containment and detention from 1929
In recent years, however, there has been a strong shift. The indefinite special measures have fallen into disrepute, and the development has moved back towards a more classic penal system where proportionality between crime and punishment is a fundamental principle.
Development for Young Offenders
The principle of upbringing instead of punishment for young offenders was established with the Guardianship Law of 1896 and further emphasized in the Child Welfare Act of 1953. This mindset was also applied to older juveniles, including through the Work School Law of 1928 (effective from 1951), which targeted young offenders between 18 and 23 years.
However, the work school was not a success. The expectations of vocational training proved unrealistic, the students did not perceive the measure as a helping hand, and recidivism rates were high. In 1965, the work school law was replaced by the "Act on Legal Measures against Young Offenders," where the work school was renamed juvenile prison and juvenile detention was introduced as a short-term treatment.
In 1974, the entire youth offender law was repealed. The same development occurred in other Nordic countries. The high hopes of replacing punishment with education and influence for young offenders proved unrealistic.
Correctional Services in Freedom
Throughout much of the 20th century, there was a strong trend towards limiting the use of liberty-depriving punishment and replacing it with supervision and control without placement in an institution. The idea was that many offenders only need a certain degree of guidance, help, and supervision to stay on the right path.
In Norway, it has traditionally been a condition of supervision in cases of conditional sentencing and conditional decisions not to prosecute. Work with free-living offenders was formerly organized by local protection teams, but from January 1, 1980, the activity was taken over by the state.
The correctional services in freedom have traditionally had two main tasks:
Conduct personal investigations in criminal cases to assist the prosecution authority and courts
Assist and supervise offenders who have received a conditional decision not to prosecute or conditional sentence, are sentenced to community service, or are released on probation
With the adoption of the Enforcement Act of 2001, supervision was abolished as a special condition in most criminal probation situations and partly replaced by other conditions. This marks a development where correctional services increasingly become a part of the criminal justice process.
Mediation Boards and Restorative Justice
In the 1980s, mediation boards were established in many municipalities as an alternative to the judicial system. The arrangement was legislated in 1991. The mediation boards aim to bring the offender and the victim together face to face to reach a voluntary settlement where the offender makes amends.
Mediation in the mediation board requires the parties' consent. If the parties agree on an arrangement, and it is approved and fulfilled, the offender is finished with the case, and it is not recorded in the fine or criminal register.
In a legislative amendment in 2003, attendance at a mediation board and mediation implementation was also made a special condition with conditional sentences. Mediation in the mediation board can also be included as an element in the implementation of community service.
The Reaction System in Practice
Statistics show that in 2002, for crimes, over 6,500 unconditional imprisonment sentences were imposed (including partial sentences), and about 5,650 conditional reactions (including community service/community punishment). Most unconditional imprisonment sentences for property crimes are given to repeat offenders.
For misdemeanors, the picture is different. The total number is much larger than for crimes, and fines are by far the dominant reaction, particularly in the form of simplified fines for violations of the Road Traffic Act.
The Effect of Reactions
Recidivism statistics show that the recidivism rate is clearly highest for those who are sentenced to unconditional imprisonment, while it is significantly lower for those who receive a reaction in freedom. In general, it seems that milder reactions lead to less recidivism.
This, however, says more about who is sentenced to the different reactions than about their impact. Among those who receive conditional sentences, the previously unsentenced dominate, while it is the opposite among those who receive unconditional sentences.
Research suggests that the difference in recidivism rates is mainly due to the composition of the different offender groups and that there is no substantial basis to claim that one reaction is generally better or worse than another in terms of individual preventive effect.
Conclusion
The Norwegian reaction system has undergone a long development from the harsh punishments of the Middle Ages to the nuanced system of today, with an emphasis on individualization and rehabilitation. At the same time, the pendulum has swung somewhat back in recent years, with increased emphasis on proportionality between crime and punishment. The challenge for the future criminal justice system will be to find the right balance between the consideration of legal equality and proportionality on one side, and the need for individualization and restorative justice on the other.
