Introduction
When I was asked to discuss administrative law from a Faroese perspective for this blog, it was not clear to me how that would be possible. Of course, we have Faroese laws and administrative institutions, but these are mostly copied from Denmark with few or no Faroese ‘fingerprints’ on them. I thought, though that I could tell the story about how, substantively speaking, Faroese administrative law and institutions really are in reality, why this might be the case, and what consequences there may be.
A semi-independent polity
The Faroese are a Nordic people of approx. 55.000 (2026). They speak a language derived from Old Norse, and modern Faroese language is often said to be most closely related to west Norwegian and Icelandic.
The Faroe Islands have a long political history with first Norway and then Denmark. When the Danish-Norwegian Kingdom of 1380-1814 dissolved, the Faroe Islands, together with Iceland and other western Nordic territories, continued under the Danish crown. Currently, the Faroe Islands form part of the Danish kingdom, enjoying extensive internal autonomy. The current arrangement goes back to the 1948 home rule system.
The Home Rule Act of 1948 (See English translation available on the web-page of the Danish Ministry of State) divided governmental functions between the Faroese Home Rule authorities and the Danish metropolitan authorities. Home Rule officials could exercise enumerated competences on a ‘List A’ of special competences, while there was also a ‘List B’ of competences for which it was to be decided through negotiations whether and to what extent these could be transferred to Faroese authority. The metropolitan officials then retained authority over the competences that either had not (yet) been transferred or those that were considered permanent metropolitan affairs, not included on either of the lists A or B.
After an economic crisis in the 1990s that strained the relationship between the Faroe Islands and Denmark, there were negotiations about independence. They did not lead to any agreement. But as consequence of the momentum for change, the existing Home Rule Act was changed by means of two supplementary acts. One of these was the Danish parliament’s Act no. 578 of 4 June 2005 on the transfer of powers and competences to the Faroese Home Rule government (English translation available here), and the other was Act no. 579 of 24 June 2005 concerning the conclusion of agreements under international law by the Home Rule government (English translation available here). Both acts have been in force since 29 July 2005.
With these acts, the permanent competences of the Danish authorities were reduced in number, and the enumerated lists of A and B competences were replaced by a so-called ‘negative list’ containing only a few enumerated core areas of particular importance for the state, namely 1) the metropolitan constitution, 2) citizenship, 3) the Supreme Court, 4) foreign, security and defence policy, and finally 5) currency and monetary policy.
Thus, under the autonomy arrangement, the Faroe Islands enjoy substantial (actual or potential) formal autonomy in the domain of legislation and administration.
One long history of legal transplants
However, when we talk about areas of special competence under the home rule system, the Faroese legislative autonomy has mostly led to transplanting Danish laws into Faroese language. Departure from this approach is either due to pressing institutional circumstances or to a legislative Danish agenda that clearly diverges from Faroese political and moral norms. Except for such pressing or obvious instances, it is fair to say that Faroese law – even if often delayed due to a less well-resourced legislator – has been little more than a copy of Danish law. This is also the case with so-called general administrative law covering the administrative procedure act (fyrisitingarlóg in Faroese; forvaltningslov in Danish) and the freedom of information act (innlitslóg in Faroese; offentlighedslov in Danish) and accompanying supervisory institutions.
Thus, the Faroese administrative procedure act (Act of the Faroese Parliament no. 132 of 10 June 1993, available in Faroese version on the Faroese legal information database) and the Faroese freedom of information act (Act of the Faroese Parliament no. 133 of 10 June 1993) are almost complete transplants from the laws in force in Denmark at the time, namely the administrative procedure act (Act of Danish Parliament no. 571 of 19 December 1985) and the freedom of information act (Act of Danish Parliament no. 572 of 19 December 1985).
An important administrative supervisory institution, the Parliamentary Ombudsman, was established by Faroese Parliamentary Act no. 60 from 2000, and opened up in January 2001. This institution was also organized according to the Danish model.
Not taking cultural and other contextual factors into account
Large parts of the Administrative procedure act and the Freedom of information act can be thought to be acontextual as such, not because different societies will not have different preferences, but because much of general administrative law is technical or juristic rather than political, so that it can fit in countries of different sizes and culture. Concepts and norms such as an administrative decision, document, hearing of parties, duty to register important facts (notatpligt in Danish), the duty to give reasons etc. are bound to be of acontextual interest and good candidates for transplantation. It would be surprising if the Faroese legislator wanted to choose solutions other than the Danish model in such areas.
However, there are also areas within ordinary administrative law where contextual factors such as size naturally supports adaptation and local “fingerprints”. One can easily think of provisions which could have been adapted to local conditions, for example impartiality (special habilitet in Danish). We know that the Faroese society is smaller and closer knit than the Danish. In Faroese private and political conversation, it is often mentioned that people think Faroese administrators ought to face a stricter impartiality assessment than in Denmark. In Denmark nephews and nieces but not cousins come within the demarcation of relatives that automatically disqualify an administrative personnel person from participation in decision making. In Denmark, it must be assessed according to circumstances of the case how close a relationship an administrative person has to a cousin before it can excuse him or her. In the Faroe Islands, it would have been obvious to broaden the demarcation line to cover cousins. However, the Faroese section 3 of the Administrative procedure act simply copied the Danish provision on impartiality 1-1 and did not take into account nor discuss different Faroese needs.
Another obvious example is how internal (versus external) administrative documents are defined. The Faroese Administrative procedure act, section 12, and the Freedom of information act, section 7, have taken the Danish parallel laws as models adopting a strict rule bound approach with the concept of internal document only covering in-house produced documents or internal communication among employees. The small size of many Faroese public institutions, not least municipalities, often results in lack of competent internal staff to produce the necessary advice to the internal decision-making process, which leads to a need to rely on external advisors, such as practicing lawyers or accountants. Such external advisors however cannot deliver their advice on internal decision making in the form of internal documents; this is possible to a certain extent under Norwegian law. The size and human resource factor make it obvious that Faroese administrators would benefit from a certain level of access to external advice to support the internal administrative processes under the same conditions as if produced in-house.
To my knowledge, there has not been any serious discussion among Faroese jurists, administrators nor politicians about the possibilities of a more society-specific adjustment in the administrative law area, such as the mentioned issues regarding impartiality and internal documents. Faroese jurists and administrators just seem to have, as reflected further upon below, a hard time imagining themselves as contributing to an authentic Faroese law-making in the field of administrative law.
Something similar applies to the institutions. It was mentioned that the Parliamentary Ombudsman was established in 2001 on a strict Danish model. But the Faroese institution has 4 jurists employed. The Danish model has a staff of 60% of 120 positions jurists, or around 70-75 jurists. The Faroese Parliamentary Ombudsman dealt with a total of 116 complaints in 2025 (according to the 2025 annual report) compared to the Danish institution with a total of 7,125 cases in 2025 (https://www.ombudsmanden.dk/om-ombudsmanden/tal-og-statistik).
Summing up differences, the Faroese Parliamentary Ombudsman has approximately 5% of the legal staff and handles about 1.6% of the cases compared to the Danish counterpart.
Differences amount to more than size, however. It must also be counted as a significant difference that the ombudsman institution was developed in Denmark after World War II, when the administrative state was emerging, and there was an increasing need for a simple and effective administrative judicial review, a role that the Danish court system could hardly be said to fulfill. The above-mentioned general administrative laws, the Administrative procedure act and the Freedom of information act, were thus enacted after the Ombudsman was set up and were developed to a large extent on the basis of its practice. In the Faroe Islands, by contrast, the institution was only adopted from Denmark after the same laws had been transplanted from Denmark a few years earlier. Thus, one could reflect that while it was an important factor in the identity formation of the Danish ombudsman that the institution layed the basis for so important components of the administrative law state as the Administrative procedure act and the Freedom of information act, these preconditions were not present in the formation of the parallel Faroese institution.
Probably because of the interplay between these factors (size, timing and the role in the development of administrative law), the Faroese Parliamentary Ombudsman has developed into a rather different institution than its Danish counterpart. However, it does not seem that anyone in the Faroe Islands is really conscious about this.
The lack of authority and a formalistic legal culture
The most favorable circumstance conducive to a rational legal transplant in the sense of a situation-specific adaptation with problem solving as lead motive is a situation where the recipient society puts its own stamp on what it receives. This can only be achieved through genuine discussions, negotiations and deliberations about which parts of the – so to speak – “package” to transfer, and which parts to adapt or omit, not a one-size-fits-all formalistic approach (Daniel Berkowitz et al., “The Transplant Effect,” The American Journal of Comparative Law, vol. 51, 2003, pp. 163-203 < https://doi.org/10.2307/3649143>).
Legal transplants according to this model are hard to spot in the Faroe Islands. One might wonder whether this inability to autonomous decision-making in the legislative domain is mostly due to a lack of competence and confidence related to a less numerous population, or whether this is mainly the result of a political and educational dependence on Denmark. It is well known that public officials with a legal, economic or social science educational background tend to reproduce locally what they have internalized while educated in institutions in the metropolitan state, here Denmark, when they return (Paul J. DiMaggio and Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields”, American Sociological Review, vol. 48, 1983, pp 147-160 < https://www.jstor.org/stable/2095101?origin=crossref>).
In addition to these reproduction mechanisms, the one-size-fits-all approach to the transplantation of laws and institutions also seems to be encouraged by the formalistic legal culture that the Faroese have been shaped into through their contacts with Denmark. Even though Danes often congratulate each other that Danish and Nordic law is – supposedly in contrast to continental European law – more pragmatic than formalistic (Fx Ditlev Tamm & Pia Letto-Vanamo, Chap. 1, in Pia Letto-Vanamo et. al. (eds.), Nordic Law in European Context, Springer, Springer 2019), this truth counts exceptions, at least when we talk about Danish law. It may well be that Danes are less formalistic than continental Europeans when it comes to the absence of comprehensive legal codes or commitments to deductive legal reasoning, but there are also clear formalistic traits in Danish law. One can think of the standardized and minimalistic language of reason giving of the courts which does little to invite citizens and parties to cases to trace the actual reasons behind the decisions. This tends to give decisions an appearance of a necessary rather than pragmatic result of the facts of the case applied to the autoritative legal sources. Such an approach fits better a culture of formalism than an opposing inclination as pragmatism, Yet another instance of Danish legal formalism is the optimistic view that important legal institutions, like the Parliamentary Ombudsman institution, can be used as a model for the rest of the world (See Pierre Legrand, “The Impossibility of Legal Transplants”, Maastricht Journal of European and Comparative Law, vol. 4, pp. 111-124, 1997 < https://doi.org/10.1177/1023263X9700400202>, tracing naive optimism about legal transplants to a culture of formalism).
Legal institutions depend also upon a web of intangible beliefs, internalized by the relevant legal tradition, but not apparent in the legal-normative structure. This is clearly the case if one compares e.g. the Danish Parliamentary Ombudsman (Folketingets Ombudsmand) with the Norwegian Parliamentary Ombudsman (Sivilombudet), which dates back to 1962. It is obvious that the Danish Ombudsman has a completely different presence in Danish public law and legal and public imagination than the Norwegian one has in Norway. This despite the fact that the Norwegian system is modeled on the Danish one (from 1954), and even if both institutions are classified as belonging to the classical model, limited to “soft” sanctions such as recommendations and reports (see Gabriele Kucsko-Stadlmayer (ed.), European Ombudsman-Institutions: A comparative legal analysis regarding the multifaceted realisation of an idea, Springer 2008, pp. 2 and 60). In indexes over authoritative decisions in textbooks on Danish administrative law, reports from the Danish ombudsman usually take up more space than case law from the ordinary courts, whereas Norwegian textbooks on administrative law usually do not even include ombudsman practice in the index over (broadly speaking) administrative case law.
This is not the place for a thorough analysis of why the Danish and Norwegian institutions enjoy such different respect and prestige in their respective countries despite formal similarities. It may have something to do with the fact that while the ordinary courts in both Denmark and Norway handle relatively few administrative cases, the Norwegian Supreme Court has had a tradition of significantly more detailed and reasoned rulings and thus has contributed more to the development of general administrative law in Norway than the Danish Supreme Court has delivered to Danish administrative law. And there may be other factors. For present purposes, suffice to notice that the comparison between Denmark and Norway illustrates the importance of not overlooking cultural and political factors.
Legal institutions are thus more than formal arrangements, and it therefore probably ought be regarded as an exaggeration (which Danes are otherwise so proud of) that Denmark is a major exporter of the ombudsman institution. The formal arrangement may be ‘exported,’ but one can doubt how much of the Danish institution actually survives the journey to the recipient countries, even to a politically and culturally closely related country as Norway (Already Otto Kahn-Freund makes a short similar point in relation to the exportation of the Scandinavian ombudsman institution to England. See his “On Uses and Misuses of Comparative Law”, The Modern Law Review, vol. 37, pp. 1-27, 1974 <https://www.jstor.org/stable/1094713>, p. 5).
A similar formalistic presumption and optimism about the ombudsman institution as a transportable “item” may have contributed to the idea that that the Danish ombudsman institution could be scaled down from size 100 to size 1 and transported to the Faroe Islands and become a similarly important administrative law institution as has been the case in Denmark, without the need for any adaptation.
Concluding remarks
The American legal scholar Jonathan Miller claims that a modern state founded on the rule of law requires a strong element of rational authority. He further contends that there is no reason to believe that this authority will appear spontaneously. He mentions developing countries as societies that are weak on rational authority because they suffer from a weak state apparatus and low faith in the rule of law. In such societies officials will be desperate for any source of authority, and the prestige of a foreign model may often provide what they feel is missing. But the foreign model will often overshadow perception of real life needs and often be worshiped as a talisman and direct local conduct in ways that have little connection with substantive local needs (Jonathan M. Miller, “A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Explain the Transplant Process”, The American Journal of Comparative Law, vol. 51, pp. 839-885, 2003 < https://doi.org/10.2307/3649131>).
With all the risks involved in comparing developing societies with a small semi-independent polity in Western Europe, many of the mechanisms Miller emphasizes are equally relevant for small semi-dependent societies as for (formally speaking) independent developing countries. The Faroe Islands also seems to suffer from weak rational authority, even if mostly for reasons related to a small size and educational formation of public officials in metropolitan Denmark.
Seeing oneself as authority presupposes being self-confident enough to be able to go one’s own way where nobody previously has paved the way. This is also conditioned upon not being too apprehensive towards unpredictability and uncertainty.
Humans seem to stand in an ambivalent relation towards predictability and unpredictability. If they do not somehow overcome unpredictability, they cannot have order and institutions; yet excessive predictability excludes agency and autonomous decision-making. Paraphrasing Alasdair MacIntyre (After Virtue, chapter 8), unless one relaxes the aversion towards unpredictability, one will not be in possession of oneself, but merely the creation of other people’s projects and thinking.
Lowering the aversion towards unpredictability and seeing oneself as authority seems to be equally difficult and important in a small polity like the Faroe Islands. It is difficult because of the factors mentioned about small size and foreign education, but it is important as there can be no one-size-fits-all, off-the-shelf blueprints for small polity governance. Afterall, academics in larger countries have rarely published or thought hard about how to develop a contextualized approach to small polity governance and institution making. Locals better resume this responsibility.
Posted by Bárður Larsen, Associate professor in law at the University of the Faroe Islands.
Bárður Larsen has been Associate Professor at the University of the Faroe Islands since late 2022. Before that, he was Assistant Professor since late 2014, and part time teacher from 2010 to 2014.
Since 2014 he has been program leader for first the master program in law, established in 2013, and since 2019 also for the bachelor program in law and the new master of legal practice (LLM).
Bárður Larsen has published and taught courses at the Faroese University on a wide range of topics, including, but not limited to, Church Law, Basic Course in Law, Building and Planning Law, Legal Understanding (general jurisprudence), Faroese Administrative Law, Case Analysis, Comparative Law and Legal History.
Many of the topics dealth with in this Blog are further elaborated in the author’s article “Problemet med den ubekymrede retlige transplantation”, Juristen 2022, no. 6, pp. 251-263. English translation of title is: “The problem with the too easy or non-reflective legal transplant”. Article accessible here: <https://www.jurabibliotek.dk/view/journals/jur/2022/6/article-p251.xml> Subscription required.