Faculty of Law

 

Recent Submissions

  • Kemppinen, Heikki (Suomalainen lakimiesyhdistys, 2021)
    This study focuses on why a judge should provide reasoning for a decision of criminal sentencing and how the reasons should be written in different circum- stances. While answering said questions, the aim of the study is to create a com- prehensive picture of sentencing and the various separate decisions a judge may have to deliberate on before arriving at the final length and form of the sentence. The preliminary chapters of the study provide a foundation for the discussion of reasoning by focusing on the legal sources of sentencing. When dealing with the question ”why reason”, the study applies theories about legal reasoning of judicial decisions to the area of sentencing. A central focus is on the so-called functions of judicial reasoning. On the other hand, the analysis is enriched by factors dealing namely with sentencing, such as the demands of equality and uniform sentencing practice. The question “how to reason” is handled both as a general matter and through an examination of different situations most commonly faced by judges. The aim is not to present models of optimal reasoning but to examine how different situ- ations and contexts of decision-making and the norms related thereto affect the content of reasoning. Theoretical discussion of the subject is paired with an empirical portion, in which a sample of judicial decisions in criminal cases is analyzed in terms of the reasoning of sentencing contained therein. The aim of the theoretical part of the study is to systematize and interpret the legal norms dealing with sentencing and reasoning, while also keeping an eye on the somewhat unique sources of law regarding sentencing practice. The em- pirical analysis has features of both qualitative and quantitative research. As for point of view, the reasoning of sentencing decisions is approached from the judge’s perspective. In other words, the research questions concerning the factors to be taken into account in the reasoning of sentencing decisions are combined with the actual deliberation of sentencing carried out by the judge.
  • Schön, Esa (Helsingin yliopisto, 2021)
    The study examines the player contract models of professional and amateur athletes commonly used in Finland from the perspective of the law in force. The study seeks to determine how the specific features of the contractual relationship affect the determination of the legal effects of a professional athlete's contract as an employment contract, and how the legal status of professionals and amateurs differs from each other. A player contract can be defined as a contract of employment, which establishes an obligation for the athlete to contribute to the sporting success of the club by working in accordance with the provisions of its coaching staff in the team assigned to him at any given time. The characteristics of a player contract involve certain legal effects, the most important of which is probably that the player contracts are without exception fixed-term contracts. Competitive sport is a struggle between participants for mutual superiority according to the rules. It is characterized by rule-specificity, as sports are in practice sets of rules, and competition requires that all participants commit to the rules. The pursuit of victory is at the heart of competitive sport and a central part of the principle of fair play. Deliberately impairing the performance of the game or playing in pursuit of a pre-agreed outcome is therefore contrary to the player's contractual obligations. On the other hand, competitive sports by their nature are also characterized by the possibility of failure. A player cannot be considered in breach of his obligations, even if the sporting objectives have not been achieved, unless can be shown to have intentionally played below his ability, neglected training or by his conduct impaired his ability to play. Nor can a player be required to precisely follow the orders of the coaching staff in an everchanging game situation. The most important feature of player contracts is their emphasized personal nature. It is particularly relevant to the athlete's obligation to work and to the application of the provisions of the Employment Contracts Act, which restrict the use of fixed-term contracts, but also to the termination of a player's contract, for example. It also requires that the club allows players to play the sport and take into account the athlete's legitimate interests in deciding, for example, team composition and player training, although the athlete does not have a subjective right to be part of a team even when, for their sporting merits, this could objectively be considered to fit into it. Professional and amateur player contracts are essentially similar in content and legal effect. However, there are also some differences between them, which are the result of mandatory labour law that applies predominantly to professional athletes.
  • Eklund, Mia (Helsingin yliopisto, 2021)
    In this doctoral thesis I examine the prerequisites under which employers in Finland may process personal data of their employees (employee data) in connection with or as a part of various monitoring methods while, at the same time, taking into account the employees’ right to privacy. The purpose of this doctoral thesis is to illustrate the tensions that exist between, on the one hand, the Finnish legislation on employee privacy, which in Finland falls under the scope of labor law, and, one the other hand, i) other Finnish individual and collective labor law, ii) the EU’s general data protection regulation 2016/679 (“GDPR”) and iii) the compliance requirements applicable to employers (companies). This is done by examining and describing the applicable rules (and rules that should be applied) on employee privacy and on the processing of employee data in connection with monitoring of employees carried out by the employer (employee monitoring). This doctoral thesis consists of a summarizing part, which contains three chapters, and four previously published articles, one of which has been published in two separate parts. In the first chapter, I describe my research, including the research questions and the purpose of the research as well as my method. The first chapter also encompasses a brief description on all the articles forming part of the thesis. The second chapter contains a summary of all the articles and the conclusions which I have drawn based on the articles. The summary encompasses a presentation of both the themes and the purpose of the articles. In addition, the summary contains a review of the developments of relevant topics and legislation which I have covered in the articles and which relate mainly to the time after the publication of the articles. In the third chapter, I summarize my conclusions as a part of my concluding remarks. I also present certain reflections on topics which could be subject to future academic research. The main conclusions of my research for this doctoral thesis can be summarized as follows: i) The Finnish legislation on employee privacy appears non-compliant with the GDPR. The Finnish legislation, which under certain circumstances requires the employee’s consent, either as a basis for processing employee data or as an additional requirement for processing such data, to enable the employer to process employee data in connection with employee monitoring appears non-compliant with the rules of the GDPR and incompatible with the national room to maneuver provided for in the GDPR with regard to the processing of employee data. Also, the necessity requirement set forth in the Finnish Act on the Protection of Privacy in Working Life (759/2004) appears non-compliant with the GDPR. ii) There is an inherent tension between the Finnish legislation on employee privacy and the remainder of Finnish individual and collective labor law. More specifically, there is a conflict between the employers’ right to direct and supervise the work of its employees and the statutory requirements to obtain the employee’s consent in order for the employer to process employee data in connection with employee monitoring. On the one hand, the employer has a statutory right to direct and supervise the work carried out by its employees and, on the other hand, the processing of employee data in connection with certain types of monitoring require the employee’s consent. Employee monitoring, the purpose of which is to protect the employer’s property or to ensure compliance with applicable rules, usually concern the employees as a collective. From a systemic labor law perspective, matters that concern employees as a collective are, as a starting point, dealt with either as matters to be handled in cooperation negotiations in accordance with the cooperation legislation or in collective bargaining agreements. In this regard, requirements to obtain the individual employee’s consent constitute a clear and, from a practical perspective, problematic deviation from the labor law system, as a matter of collective nature is handled on an individual level. This deviation can partly be explained by the individual nature of the right to privacy as well as by the importance and meaning of the individual’s self-determination in the Finnish legal tradition. Also, the circumstances under which the legislation was enacted have had an impact. Agreeing on arrangements for control and monitoring measures, which affect all employees or groups of employees on a collective level, would from a labor law system perspective most naturally be handled in cooperation negotiations or in collective bargaining agreements. The Act on Co-operation within Undertakings as well as the Act on the Protection of Privacy in Working Life currently require that processing employee data in connection with, inter alia, employee monitoring shall be handled in cooperation negotiations. The GDPR’s form requirements for a valid consent and the information that is to be provided to the employee before obtaining his/her consent encompasses the same elements as the “agenda” of co-operation negotiations. Obtaining consent and arranging co-operation negotiations appear, at least partly, to fulfill the same purpose – ensuring transparency – and thus overlap. This should be taken into account in the ongoing revision of the Act on Co-operation within Undertakings. iii) There is a tension between the Finnish legislation on employee privacy and the increasing compliance requirements which companies are required and expected to take into account when doing business. In order to ensure compliance and prevent misconduct and to be able, if necessary, to investigate (potential) violations, employers (companies) are required to take active measures. In practice, compliance requires a structured and comprehensive system that covers, inter alia, appropriate monitoring mechanisms. However, consent as a processing basis or as an additional requirement for processing is problematic, as the employee may, by not giving his/her consent or by withdrawing his/her consent, prevent the employer from introducing or using monitoring mechanisms for purposes which may be deemed appropriate and necessary – both from the employer’s perspective as well as from the perspective of society more generally – to ensure compliance and prevent misconduct.
  • Sormunen, Milka (Helsingin yliopisto, 2021)
    According to Article 3(1) of the United Nations Convention on the Rights of the Child (CRC), the best interests of the child shall be a primary consideration in all actions concerning children. The best interests of the child is a central but indeterminate concept. After its inclusion in the CRC in 1989, considering it became a human rights obligation. This thesis analyses the concept of the best interests of the child in domestic, European and international human rights practice. It consists of four peer-reviewed articles and a summary. Building on each article’s arguments regarding the concept of the best interests of the child in human rights practice, the summary extends key themes and discusses the implications of the findings. This thesis enriches our knowledge of how the best interests concept is understood and used in human rights practice. Its starting point is the interaction between the concept of the best interests of the child and children’s rights, with the analysis responding to a broader question of the interaction and dialogue between different systems for the protection of human rights. The thesis offers new, systematically collected data on the nature and functioning of the best interests concept in human rights practice at the domestic, European and international levels and discusses the major reasons underlying the identified problems. Methodologically, it relies on systematic case studies and comparison and employs tools of doctrinal research to analyse the findings. Article I, ‘“In All Actions Concerning Children”? Best Interests of the Child in the Case Law of the Supreme Administrative Court of Finland’, demonstrates that the Supreme Administrative Court of Finland considers the best interests of the child in a selective manner: it tends to consider best interests in areas traditionally associated with children’s rights but does not consider them sufficiently in other areas. Article II, ‘A comparison of child protection and immigration jurisprudence of the European Court of Human Rights: what role for the best interests of the child?’, compares the use of the best interests concept in child protection and immigration cases of the European Court of Human Rights (ECtHR). Even though the ECtHR regularly refers to best interests in its cases concerning children, unjustified differences exist between the case groups in the assessment of family unity, the child’s age and the child’s views. The article concludes that the ECtHR’s approach in immigration cases is problematic. Article III, ‘Understanding the Best Interests of the Child as a Procedural Obligation: the Example of the European Court of Human Rights’, suggests a procedural approach to best interests as a remedy to the inconsistent application of the concept in the different case groups detected in Article II. The article critically analyses the views of the Committee on the Rights of the Child and categorises three layers of the ECtHR’s procedural approach to best interests. Article IV, ‘A Focus on Domestic Structures: Best Interests of the Child in the Concluding Observations of the UN Committee on the Rights of the Child’, establishes that instead of attempting to define the best interests concept in its concluding observations, the Committee on the Rights of the Child focuses on structures that advance the implementation of best interests. Together, the articles illustrate the problems of an outcome-focused understanding of the best interests of the child. These issues are reflected in the inconsistencies of human rights practice; the best interests of the child are not systematically taken into account in human rights practice as required by Article 3(1) CRC. This study found unjustified differences between different fields of law, which is problematic from the perspective of children’s rights, especially concerning non-discrimination. The thesis suggests that the application of an outcome-focused understanding of the concept of the best interests of the child is complicated by the concept’s purpose of maximising children’s rights and by the ambiguity of the criteria under which the child’s best interests can be limited. The thesis, therefore, uses the framework of positive and negative obligations to demonstrate that the current practice of accommodating best interests with other interests and rights – balancing – is obscure and that, consequently, best interests are easily disregarded. The thesis suggests that if Article 3(1) CRC is used as a yardstick to measure the outcome of a decision, the legal content of Article 3(1) should be defined in relation to the case at hand, after which the criteria for limiting human rights should be applied. The thesis further argues that relying on different presumptions in similar legal questions may lead to discriminatory outcomes. The thesis also develops the idea of Article 3(1) CRC as a procedural obligation. Relying on Article 3(1) as a procedural obligation means that in cases concerning children, courts would attend to whether the best interests of the child have been considered, the grounds of the assessment explained and procedural requirements, such as obtaining the child’s views, followed. The substantive assessment would be expressed in terms of the rights of the child. The thesis proposes that a procedural approach and focus on structures that advance children’s rights in general could more effectively safeguard the best interests of the child than an outcome-focused approach.
  • Vuorela, Miikka (Helsingin yliopisto, 2021)
    The purpose of this study is to form an overall view of the development of recorded crime, sentencing practices and incarceration rates in Finland during the period of autonomy. Additionally, Finland is systematically compared to the other Nordic countries. A collection of statistics depicting convictions, sanctions and imprisonment in Finland, Denmark, Norway and Sweden in 1809–1917 is also constructed in the study. With the new statistics, incarceration statistics now begin in 1810 and conviction and sanction statistics in 1842. These time series are analysed using quantitative methods in this study. The study consists of three main parts discussing respectively criminality, sentencing practice and the prison system. In the early 19th century crime and its control were concentrated in rural areas and the most common types of convictions were illicit intercourse and timber theft. During the century, convictions were starting to consist more and more of urban misdemeanours such as public intoxications. In the meantime, offences related to the protection of communal moral values, such as illicit intercourse, breach of the sabbath and slander were slowly disappearing from the court agendas. The most important single event affecting the development of criminality in the 19th century was the Finnish famine of 1866–1868 which launched the first recorded crime wave in the history of Finland, causing theft convictions to quadruple in just two years. The chapter on sentencing practices examines the criminal law reforms of the 19th century and the forms of punishment in legislature and court practice. The draconic penal system of the Swedish Civil Code of 1734 faded away during the century and the law was not enacted according to its letter. Executions demanded by the statute were converted to deportations to Siberia, and most corporal punishments were converted in the courts of appeal. The period of autonomy denoted the disappearance of the old forms of punishment and their replacement by the current system of incarceration and fines. This development culminated in Finland in the enactment of the new Criminal Code of 1889. The new law was significantly delayed due to the so-called state night and Finland was left decades behind the other Nordic countries in terms of the criminal justice system. The chapter on incarceration examines the structure and development of the prison system. The Finnish incarceration statistics are also built to their maximum length. Using the new data, it is for the first time possible to study how the imprisonment rates in Finland developed during the 19th century compared to the other Nordic countries. Incarceration rates began to differ in 1867. The number of prisoners decreased in Denmark, Norway and Sweden but remained stable in Finland. By the end of the century, the Finnish incarceration rate was significantly higher than in the other Nordic countries. The effects of the deportations from Finland to Siberia on the Finnish imprisonment rates and the severity of the criminal justice system is analysed for the first time in the study. The effects of the deporations may perhaps best be demonstrated by noting that during the 1870s Finland had in Siberia a second incarceration system which was as large as the one in Finland. The inclusion of the deported in the analysis of incarceration rates shows that the Finnish criminal justice system at the end of the 19th century was significantly more severe than in the other Nordic countries.
  • Rudanko, Jorma (Helsingin yliopisto, 2021)
    One can find a great number of different theories of fact-finding in the literature of evidential jurisprudence. Every theory has its pros and cons. The purpose of this thesis is not to find and name the ”best” fact-finding theory, but try to find some ways of making inferences, which could be rational and useful for the fact-finder’s in his difficult task of deciding, what is true and what is not. There is a some kind of bifurcation of theories, depending on the method of reasoning and inference they use. They are often called the bayesian and pascalian theories. The bayesian theories use mathematics, the pascalian do not. In his book ”The Probable and the Provable” L. Jonathan Cohen has stated the difficulties of using mathematical and statistical modes of reasoning in judicial fact-finding. However, there are some aspects in these theories, which are useful for the fact-finder. Especially in complex cases with a broad ”wigmorean” network of provable facts it is important for the fact-finder to understand the relationships of the probability values of facts on different levels of the network and the meaning of these relationships. In the Scandinavian literature there are two older theories of fact-finding, the so-called theme theory and evidential value theory. Neither of them has succeeded in making a break-through in the court practice. Instead, in civil cases the preponderance of the evidence method (övervikt- or overvekt -principle), having its roots in the common law tradition, has got more popularity, and so has the so-called hypothese theory, usually connected to the works of Christian Diesen from Sweden. The idea of hypothese theory is old. There have always been at least two alternatives available for the fact-finder: either a proposition is true or it is not. Diesen has developed this idea in criminal cases to a broad spectrum of hypotheses, especially concerning the causality of facts and events, and on the other hand, the roles and tasks of the prosecutor and the judge. At the time being the narrative theory seems to make progress at least in the evidential jurisprudence, even in nordic countries. Its advantages are the holistic aspects of fact-finding and reasoning it stresses. On the other hand, there might be some dangers to be aware of in connection of the holism. For instance, not every witness is a story-teller, and the fact-finder must have the tools of working also with this kind of situations. In the litigation there are also some ”minor” but important questions and items to be discussed. One of them is the role of a priori -probability in inferential reasoning. In older literature one can find the attitude that it is quite normal and acceptable that the fact-finder can use his a priori -knowledge in evaluating the evidence presented to him and as a part of it. I think that there is a discrepancy between this mode of thinking and the presumption of innocence in criminal cases. In civil cases, too, it is very questionable why the fact-finder should be allowed to use some information the content of which is and stays uncontrolled. In both kind of cases he should be able to put aside his prejudicies and start from ”a clean table”, or, if considering his information relevant for the case, he should inform the litigants about it and so make it to an item of contradictory and adversarial discussion.
  • Hanninen, Minna (Helsingin yliopisto, 2020)
    In the last couple of decades there have been considerable advances in the field of biotechnology, and biochemistry and gene technology have become especially important in relation to their potential applications in alleviating human suffering by the way of, for example, curing previously incurable diseases. This makes the field very interesting from the viewpoint of gaining patent protection for inventions which could produce vast financial profit. Simultaneously, the significance and consideration of fundamental and human rights has increased. The patentability of human based material in relation to fundamental and human rights is a legal research the aims of which are to systematize the legal rules affecting the patentability of inventions concerning human based material in Finland as well as analyze whether there are fundamental and human rights norms that are seemingly (in a way that can be resolved by means of interpretation) or actually in conflict with them. Furthermore, the study addresses the question of what is meant by the concepts of human dignity and personal autonomy in connection with the patentability of inventions in which human based material is used and what is the legal status of persons that have donated their material which is used in the inventions. The perspective of the research is of Finnish law but in a European context, as Finland is a member state of the European Union as well as the Council of Europe. The research has been conducted using the doctrinal approach in order to, as mentioned above, give systematic exposition to the legal rules and principles governing the research topic. Although the patent system and fundamental and human rights have traditionally been treated as separate and unrelated, according to the author it seems clear that in today’s world they cannot be understood this way anymore. Instead, they overlap and intertwine in many ways, and should be viewed as one systematic unity. Patent law in general must be interpreted taking into consideration the principles protected by fundamental and human rights norms. Especially, when material of human origin is utilized in connection with an invention intended to be patented, the protection of the individual human being donating the material, including their human dignity and the rights and fundamental freedoms, should always be a priority. This may, in certain situations, result in limitations of the patentability of inventions utilizing material of human origin. The interrelation between patentability legislation concerning biotechnological inventions should be emphasized also in the practice of patent authorities. Fundamental and human rights should at least function as a standard against which the morality of the commercial exploitation of inventions need to be compared. At the moment there are still some issues to this regard to be resolved.
  • Glover, Edinam (Helsingin yliopisto, 2020)
    Many countries in sub-Saharan Africa have seen considerable concern about the depletion and loss of natural resources due to over exploitation and other socio-economic activities. This menace of resource degradation threatens the stability of the ecosystem, food security, national and international security, and the very survival of life of people in the region. The general aim of this research is to explore how the legal development during colonial times - with forests and forest activities becoming colonial property and under colonial authority, and with the exercise of police power - in many ways contradicted and broke up the traditional customary law in the Sudan. More specifically, the study describes the major elements in the development of forest law in the Sudan: Prior to the colonization, during the colonization by the British from late 18th century to independence in 1956, and elements of the development of the forest law after independence. It seeks to analyse the legal mechanisms for enforcement and implementation in the broader context of sustainable development in the Sudan: It examines the enforcement from the perspective of its relationship with environmental laws. It examines a wide range of laws and conventions that have an indirect impact on forest conservation and development. It attempts to answer the following questions: What are the legal enforcement mechanisms that help to enhance compliance with the rule of law and promote sustainable development? What are the obstacles that hinder the enforcement and implementation of these legal mechanisms? What was the forest policy and legislation in Sudan during the colonial era? What changes, if any, occurred or should have occurred? Looking into the future, what may be expected, and how could it be made better than today? This study complements qualitative content analysis (QCA) with mono-disciplinary legal research data. Qualitative content analysis largely involved the use of data derived from a range of primary sources of Environmental Law such as domestic and regional law, early 20th-century English colonial law and customary law as evidenced by national legislation, government statements and restatements. The data have been analysed by means of content analysis. Results indicate that legal mechanism that can help to enhance compliance with the rule of law may include public awareness and participation, conservation orders, environmental permitting and licensing system, and environmental impact assessment. It has been shown in this study that the received law forms an essential or basic element of forest legislation and development in the Sudan and as far as law does not fulfil people’s needs, they do not consider it as binding. In addition, the evidence seems to indicate that the colonial era laws have not been compatible with Sudanese pre-existing social norms and have not been well received and thus implemented. Findings demonstrate that in a bid to tackle land use issues, the government of the Sudan has created the necessary enabling environment by putting in place environmental policies and legislation as well as setting up a wide range of institutions that handle various aspects of resource management such as law enforcement, policy formulation, research, and creation of awareness. The evidence seems to be strong that the government has provided some level of legal recognition to customary and state land tenure. Despite the above efforts, environmental degradation in Sudan is still a major concern. The study suggests that efforts must be made to encourage an internal process of law development and to produce a self-sustaining demand for legal innovation and change. The conclusion from the study is that the most common explanation for non-compliance is inadequate monitoring and enforcement of law. Weakness in the rule of law has grave consequences in minimizing progress towards sustainable development. Keywords: Compliance, colonialism, enforcement, environmental changes, foreign law, legal mechanisms, natural resources, sub-Saharan Africa, the Sudan
  • Häkkinen, Esko (Helsingin yliopisto, 2020)
    This study concerns the relationship that the severity of punishment and the dominance of penal legislation in societal regulation have with the institutions of welfare state, political economy, and democratic politics. It consists of four independent research articles (three in English and one in Finnish) and an overview (Finnish). All articles are included as attachments. Article 1 (Finnish) introduces the neo-institutionalist explanatory penal theory. Contemporary research on penal policy widely accepts the connection between the strength of the welfare state and penal severity. It is understood that economic deregulation and welfare state retrenchment led to mass imprisonment and a culture of control from the 1970s onwards, especially in the United States. Comparative research shows that the punitive turn has had a less significant impact on countries with welfare states that have proven to be more durable, such as Finland. Differing political institutions may be an underlying independent predictor for determining both the strength of a welfare state and penal severity. Article 2 combines neo-institutionalist and neo-Durkheimian perspectives to construct a causal hypothesis concerning the effect of democratic corporatism and the welfare state on punishment in society. Corporatist unionization and organization increase market regulation and indirectly push a state to create social security. Society’s increased welfarist regulation decreases its emotional motivation to employ harsh punishment. Article 3 applies this hypothesis to the development of Finnish criminal justice before and after the Second World War. Pre-war Finnish criminal justice was exceptionally harsh. Corporatist interest representation was recognized in the 1940s, the labour market regulation increased, and by the 1960s, the central government had created a comprehensive system of social insurance. Welfare state development continued from the 1970s to 1980s. Overall, throughout this period, penal severity decreased. Article 4 is a longitudinal content analysis of crime control politics in the Finnish parliament from the 1970s to 2010s. An economic recession and geopolitical change shocked the preceding social order, causing the expansive phase of welfare state development to end and an ambivalent phase in criminal justice politics to begin.
  • Rankinen, Juho (Helsingin yliopisto, 2020)
    The study concentrates on negligence as a positive fault requirement in the Finnish criminal law. The hermeneutical aspiration of the study is to understand this concept and a form of legally relevant fault – i.e., to understand what is criminal negligence. This requires some kind of understanding what is criminal law, and law in general. Merely the aim to understand the law leads this study into enormous philosophical problems. According to this study, law is something far too complex, ambiguous and even mysterious to be grasped by this study, or the undersigned researcher. And so is also the Finnish criminal law, and eventually negligence. Consequently, the study is plunged into a pluralistic, eclectic and in many ways paradoxical cavalcade of perspectives and points of view. It cannot claim to possess some kind of absolute truth, neither concerning law, nor criminal law, nor negligence. Still, it hopes to advance our understanding concerning these issues. It has to resign itself to better understand negligence. The study is composed of five main sections. The first one frames the methodological and ethical theses for the research. The second one (PART I) examines the tradition of finnish criminal law and different kinds of manners in which criminal negligence has already been researched. The third one (PART II) sketches a basic model in which more specific criminal law doctrines concerning fault and responsibility may be placed, and how criminal negligence may be thought as a coherent whole. The fourth one (PART III) draws conclusions from the basis of this model, trying both to apply it to questions of negligence in practical legal reasoning, and also to justify this model. The final section turns (back) to the eternal questions about legal knowledge, interpretation and belief. This study both assumes and also tries to show and even demonstrate the aporetic nature of law and it’s openness to interpretations. It aims to do this tangibly, rambling around in the mass of various researches, interpretations and perspectives concerning criminal negligence. A couple of pages abstract is probably one of the best ways to misunderstand this kind of enterprise. So, one page as an abstract will do.
  • Mehling, Michael (Helsingin yliopisto, 2020)
    On all regulatory levels, climate policy is undergoing a process of rapid proliferation as well as a paradigmatic shift towards flexible instruments based on voluntary incentives, pricing control, and quantity rationing. While the resulting policy mix has yielded initial successes in various regions and jurisdictions, it has also proven increasingly prone to regulatory conflicts and a general trend towards fragmentation. Arguably, no attempt to face a challenge as pervasive as global climate change can avoid such difficulties entirely. Still, this thesis traces many of the identified shortcomings to a flawed, yet uncritically perpetuated canon of criteria for instrument choice in climate policy, and highlights both conceptual weaknesses and important historical decision processes where these criteria had little or no influence on the final political outcome. Rather than follow a utopian promise of rational and objective criteria, this book argues that stronger consideration of the law and jurisprudential methods can improve the final policy design by avoiding conflicts and tensions while incurring a greater level of legitimacy. It concludes with several recommendations for a coherent policy design at the international, regional and domestic level.
  • Tikka, Katja (Helsingin yliopisto, 2020)
    Shipping Legal Norms - Swedish Trading Companies in the Seventeenth century The doctoral dissertation examines the earliest Swedish Trading Companies and their administrative practices during the seventeenth century. The study focuses on two main company types: Copper Companies and Tar Companies, which represent two different and comparative entities. The objective is to understand the development of the trading companies in their political and legal context. The Copper Companies were Sweden’s first experiment of companies with limited liability, and they were based on foreign models (legal transplants). Furthermore, they characterize a new kind of global trade and monetary economy. The Tar Company, founded in 1648, arose from different kinds of needs. At that time Sweden was rising to become a great power in the Baltic Sea region in part because of its economic policies. The study’s methodological approach is based on analyzing the Swedish companies’ position in relation to the formation of organizations and institutions as a part of Swedish state formation. As government control was strict in a mercantilist society, trading companies were required to have privileges even though they were led by individual merchants. The Swedish Crown as well as local and foreign merchants were all looking out for their own interests in the companies. The study compares the Swedish companies with company models adopted elsewhere in Europe. Moreover, it also compares the privileges of Swedish Copper and Tar Companies with each other. Company privileges are linked to the social development of the Swedish state as well. The study reveals that the administrative and judicial environment in early seventeenth century Sweden was not yet prepared to adopt a Western European legal transplant permanently. Nevertheless, temporarily, Sweden was on the crest of a wave in adopting such legal innovations. The trading companies introduced significant reforms to Sweden, and shaped the model of the Collegium of Commerce, for instance. Later the foreign influence regarding the Tar Companies had nearly vanished from the 1640’s onwards, mainly because of the rulers’ attempt to achieve a more monarchical position. The research results correct the former view according to which the Tar Companies were closed down and then founded again only due to economic reasons. In fact, the privileges granted by the Crown were crucial in the development of the trading companies. Company privileges were always connected to the person of the ruler. Regency governments could not grant company privileges. In addition, I claim that foreign merchants offered their models to circumvent the strict Swedish alien policy. In the end, foreign models were also essential for Sweden to manage in the rapidly changing field of international commerce. The first Swedish trading companies were organizations aimed at controlling risks and minimizing the instability of the export trade. The study shows that legal change arose from practical needs such as the reactions of local traders. However, these legal transplants, being adopted into different legal circumstances, could not have continuity. Trading companies represent the first economic entities in Sweden, which had to be based on anonymous shares in order to succeed in the new global markets.
  • Lukkari, Hanna (Helsingin yliopisto, 2020)
    The aim of this dissertation is to analyze the significance of the logical phenomenon of paradox for law and its relation to politics. I examine a selection of formal legal and political theories that in different ways understand law as a totality of norms, communications or behaviors, how paradox emerges in these theories, and what implications their understanding of paradox has for the relationship between law and politics. I argue that these legal and political theories can be meaningfully and in a novel way grouped according to their orientation to legal totality and paradox. To my knowledge, there is no research systematically mapping orientations to paradox in legal theory. It is the objective of this dissertation to fill this lack. Paradox presents challenges for formal thought, i.e. thought that analyzes the logic of totalities. Law, considered as a totality or form, gathers a plurality of entities under a common denominator and into a legal order. It is in reflecting on such formalization that we encounter paradoxes. This work aims to contribute to a growing literature on the implications of formalism for contemporary social and political thought by providing a legal theoretical perspective hitherto missing in these discussions. I use as a heuristic device a grouping of formal thought presented by the philosopher Paul M. Livingston. According to this grouping, there are three main orientations in contemporary formal thought to totality: the constructivist-criteriological, the paradoxico-critical and the generic orientation. These orientations arise on grounds of the “metalogical choice”: they prefer to view totality (such as law as a system or order) either as complete but inconsistent (the paradoxico-criticism), or as consistent but incomplete (the constructivist-criteriological and the generic orientation). I will apply, and modify when necessary, this categorization in order to analyze the theories of Hans Kelsen, Niklas Luhmann, Giorgio Agamben, Alain Badiou and Hans Lindahl, and to provide a systematic mapping of how the nature of law as a totality is understood in contemporary formal legal-political thought. Accounts of modern law encounter a paradox, I argue, if they observe law as an autonomous, self-referential totality that claims for itself the right to draw a distinction between itself and non-law. The paradox of autonomous law is that it cannot consistently show that it is itself legal as a totality. The basic problem that this implies is that the legal system or collective is unable to legitimate its existence and identity in response to challenges in any other way than by drawing on its own resources – which precisely is what the challenge targets in the first place. If we think of law as offering a framework within which questions of justice and injustice can be answered, the paradox emerges when we question the justice of this framework itself. The dissertation defends the paradoxico-critical orientation. It argues that the legal system is a paradoxical totality, which implies that there is no neutral metalanguage, such as natural law, that could solve the problem of law’s self-reference for good. This challenges legal theory to show how the problem of nihilistic relativism, the mere perpetuation of the self-referential legal system, can be mitigated and law’s normative authority in society rethought. In Chapter 1, I define the notion of paradox, explicate its meaning and role in formal thought and motivate its application to legal theory. In Chapter 2, I show that in his theory of the basic norm, Kelsen can be understood as oscillating between the constructivist-criteriological position and the paradoxico-criticism, between an attempt at guaranteeing legal order’s consistency in a metalanguage, i.e. legal science, and an acknowledgement of law as an inconsistent totality. In Chapter 3, I interpret Luhmann as a paradoxico-evolutionary thinker: he observes the legal system as constitutively inconsistent but emphasizes the ways in which the system seeks to make this inconsistency unproblematic for functional reasons. In Chapter 4, I show that in systems theory, just like in Kelsen’s pure theory, the politics of the paradox remains unarticulated. I also show that, for Agamben, a paradoxico-critical thinker, the paradoxical articulation of law and politics is exposed in the state of exception, which, in his analysis, has become the new normal, requiring “messianic” politics to deactivate the whole nihilistic sovereign-legal apparatus. For Badiou, the representative of the generic orientation, which I discuss in Chapter 5, what can be said within a language, and by implication a legal system, is pre-determined by that language. Politics, the desire to say the unsayable, is thrown fully outside the language and the legal system to a position from which law’s incompleteness, its incapacity to offer space for justice and politics, can only be disclosed. Both Agamben and Badiou, thus, think about politics as “post-juridical.” In Chapter 6, I show that the very inconsistency and paradox at the heart of the legal order is, for Lindahl’s paradoxico-criticism, the site of the politics of its limits. This dissertation, then, concludes that the paradoxical limits of the legal totality can be understood as the site of politics in law. Taking law’s paradox into account allows for a non-nihilistic conception of politically contestable law and legal authority.
  • Soini, Sirpa T (Helsingin yliopisto, 2020)
    This study examines legal regulation on genetic testing in the health care setting and on the consumer markets, and the various factors behind. Genetic applications for human health hold great promises for precision medicine, but raise also morally sensitive and controversial issues. Values and moral need to be integrated when addressing law in this field, thus the relationship of law, moral, and bioethics is analyzed. The regulatory scene in the biomedical field is complex with transnational laws, ethical codes, guidelines, and other policy papers. For many, the picture is unclear which maintains insecurity in practice, as it may be challenging to separate law from non-law. The notion of legal pluralism is particularly interesting in this context, and is discussed in the study. To manage the scene and pluralism, this study aims to map relevant laws, and other quasi-normative instruments. The study is based on four previously published articles, the contents of which are updated to the current situation in terms of legal regulation (until May 31, 2020) and scientific progress, and further elaborated with a wide range of multidisciplinary literature and court cases, particularly in light of ECtHR’s praxis and argumentation on the margin of appreciation. The methodology is partly legal dogmatic, partly reasoning and multidisciplinary argumentation in the realm of current legal theories. Europe is fragmented in legal approaches to many treatments. Services, goods, and people cross borders. EU and Council of Europe have influence on the member states’ regulation, even though they enjoy wide margin of appreciation in many health-related matters. Biomedical field is dynamic and evolving in science. Therefore, regulatory approaches need careful assessment in terms of need and accuracy, so that basic research and adoption of new applications are not unnecessary hindered. Moral issues and concrete physical risks need to be addressed, but shall not be confused with each other in this regard. The claim for the 4th generation human rights, biorights, aims to protect peoples’ genetic integrity against rapid biomedical progress. The need for and the legitimacy of biomedical regulation should be addressed in multidisciplinary fora, for which bioethics provides a good platform. However, methodology is needed to support its normative suggestions. Moral philosophy can be seen as to lay the ground and concepts for bioethics, thus enabling proper elaboration of moral beliefs.
  • Zhang, Kangle (Picaset, 2020)
    The workings of the financial market contribute greatly to the exacerbation of income and wealth inequality. The rate of return from capital is significantly higher compared to labour and the extreme structural biases at the global level among states and at the domestic level among different groups of people systemically benefit the haves at the cost of the have-nots. The law is central in enabling these operations. Finance as the architecture that structures economic arrangements (so as to achieve goals by stewarding the assets needed) operates through legal arrangements and, perhaps even more importantly, international legal arrangements have normalized economic disparity. The dissertation starts by describing the link between the international financial market and economic inequality. From there, it [i] examines the law of international finance and its relation to inequality, [ii] suggests an explanation for the nonchalance of the financial system and rules therein towards enlarging inequality, and [iii] proposes the inclusion of international financial market into the purview of international law research—the nexus of an international law of finance. The dissertation suggests that an international law of finance would be a field where international lawyers actively engage with the intertwined network of actors and rules in the financial market, where they master the vocabulary and grammar of finance, dissect the distributive significance of the legal design of the financial market, and make good use of their toolbox by examining the role of state in enabling financial market operations. As a performance of such engagement, the dissertation carries out a case study on credit rating agencies. The study examines the source of authority of this small but ubiquitous group of private actors, the significance of their ratings in both domestic and international financial markets, and their role as a cornerstone in the architecture of international finance—largely constructed by only a small number of states. With the state as the central unit of analysis, the international law of finance could shed light on the various ways in which states contribute to, maintain and reproduce the problems of international finance, thereby broadening the imagination needed to deal with global economic inequality.
  • Lundstedt, Tero (Helsingin yliopisto, 2020)
    This thesis is focused on the socialist federal dissolutions of the Union of Soviet Socialist Republics (USSR) and the Socialist Federal Republic of Yugoslavia (SFRY) in the early 1990s, and on a legal rule related to state succession, uti possidetis (juris). Briefly, uti possidetis transforms former internal administrative borders into international borders at the moment of state dissolution, with all the legal ramifications this status change entails. The thesis reconstructs from the events an evolutionary process that led the international community to choose a specific version of uti possidetis regarding the socialist federal dissolutions. After demonstrating the mistakes made in this process, the thesis provides a proposal for an updated version of uti possidetis that can rebalance the legal principles of self-determination and territorial integrity in future state dissolution cases. Part I poses the research question of what are the legal legacies of the socialist federal dissolutions for international law in general and the post-federal successor states in particular? It claims that by a virtue of being a general legal principle, uti possidetis has to evolve alongside the shifting paradigm of the international legal order. After accounting for the evolution of uti possidetis with its application in the decolonization cases since the 1800s, the thesis concludes that this vital process was disrupted in the early 1990s. The chosen mode of application failed to take into account two legally crucial factors: the evolution of the right to self-determination and the unique socialist federal model. As uti possidetis was not updated to factor in these changed circumstances, it was misapplied, causing national fragmentation in the successor states. This has directly contributed to territorial conflicts, out of which Kosovo and Crimea are the most prominent. Part II introduces the two components of a proposed uti possidetis update. Chapter 3 exhibits the internal component, the last applicable legal order of the dissolving state. Chapter 4 presents the external component, the international legal rules regarding the dissolution. The combination of the two at the moment of dissolution generates an update of uti possidetis, titled ‘uti possidetis meritus’. It calls for expanded recognition of internal borders and draws legitimacy from its compatibility with the existing uti possidetis framework. Part III presents the legal aftermath of the socialist federal dissolutions and proposes the meritus formula as a remedy. Chapter 5 gives a comprehensive review of how the right to self-determination was realized in the socialist federal dissolutions and how this caused territorial conflicts. Chapter 6 concludes the argument by exhibiting two potential forms of application for meritus: it can be used to help settle already existing conflicts, as well as to minimize territorial fragmentation in the future state dissolution or independence cases. In sum, the vital evolution of uti possidetis was disrupted in its transformation into a non-colonial context. The legal legacies of the socialist federal dissolutions are the distortion of uti possidetis and the lack of balance between self-determination and territorial integrity in the successor states. Meritus aims to remedy both.
  • Perätalo, Katja (Alma Talent Oy, 2020)
    As many other legal systems, the Finnish law of obligations builds on a separation of contract and tort liability. If the relationship of two parties does not fall into either of these categories, the presumption is that no liability applies: the tort liability act does not apply to contractual liability, and a contract may only be invoked by its parties. While the division of tort and contract liability in theory is quite simple, in practice the interface between tort and contract law also provides for more complex forms of liability. Relationships which are prone to attract these types of liabilities are typical in construction projects, as construction projects often consist of more than two parties that are not bound by the same contract, but that are still contractually connected to each other. The parties are thereby in a position of causing loss or damage to each other in connection with fulfilling their respective contractual obligations, claims relating to which would not fall into the definition of either contractual or tort liability. The dissertation covers these forms of liability in the context of construction projects, which in addition to contractual and tort liability also include joint and several liability and associated rights of regression. The dissertation finds that the Finnish law of obligations indeed recognizes liability beyond traditional contractual or tort liability. In the context of construction projects, this means that contractual liability can apply between parties that are not bound by the same contract, albeit the threshold for this type of liability is high and requires strong support in terms of practical reasoning beyond meeting certain formal criteria. Tort liability can also apply in connection with contractual performance, provided that a contractual breach simultaneously is in breach of non-contractual norms that have not been effectively altered between the relevant parties. Joint and several liability only requires simultaneous existence of liability of two or more parties towards a third party, and therefore, normatively, joint and several liability does not require explicit contract coverage to apply, provided that the liabilities of each of the parties remain within the limits of their respective obligations. Usually, but not categorically, joint and several liability leads to associated regression even without explicit underlying agreements supporting the same. It is noteworthy that in terms of industry practices, the scope of the dissertation clearly covers the exceptions and not the rules. The contractual structure of construction projects tends to drive the basis of claims towards traditional contractual liability even when other types of recourse would be available. This is further emphasized by the fact that the industry widely favours arbitration as a dispute resolution mechanism. These implications are, however, practical and not normative, and thereby only reflect the visibility of these types of relations in practice, not their normative existence.
  • Tan, Xiaowen (Helsingin yliopisto, 2020)
    The dissertation studies the rules of evidence in damages actions for EU competition law infringements. This study examines which norms of EU law and EU law principles govern evidentiary rules in Member States. Further, it discusses ambiguities and open questions in the entirety of EU law that relate to evidence matters in cases involving breaches of EU competition law. The study also investigates the more general theme of the parallel application of EU and national law, in order to explore how the substance and the goals of EU law affect the application of evidentiary rules in private competition enforcement cases. To serve this purpose, this study applies a predominantly legal doctrinal approach. Hence, this study interprets and systemizes relevant EU laws, EU caselaw and soft-law guidance, which provide details regarding evidence-related issues. The challenge in conducting this study also lies in the difficulty of extracting useful and relevant details from a large amount of EU caselaw and legal documents. It takes time, energy and patience to carry out such research. This study consists of six sections. Section 1 introduces the background of this topic (i.e. private enforcement of EU competition law), reviews contemporary literatures on related issues, proposes research questions, limits the scope of this study, and describes the legal doctrinal methodology applied. Section 2 discusses the current legal framework for this study, focusing mainly on the applicable EU principles, EU laws, EU caselaw, and soft-law guidance. Section 3 analyses the burden of proof. This section explores the legal burden to prove the infringement, the burden to prove other elements of liability including the harm and the causal link, and presumptions that are employed to alleviate an overwhelming burden of proof. Section 4 concerns issues related to standard of proof. This section analyses in detail the constitutive requirements for a damage claim and the level of persuasiveness to which claimants should prove. It includes standards of proof for the infringement (in stand-alone cases only), the harm, and the causal link between the harm and the infringement. Section 5 considers the central issue – access to evidence. This section enquires into the available approaches for claimants to obtain sufficient evidence to support their claims. The claimants have, in principle, two options, either to request direct access from competition authorities or to request access indirectly through national courts. Indirect access might target evidence in the hands of competition authorities, a competent review court, the defendant, or a third party. Section 6 concludes the dissertation, first by providing an overview of the issues discussed, second by presenting key findings and further implications therein, and third by looking into future research. This study observes that EU law and CJEU caselaw remain significantly silent on many issues related to evidentiary rules in private enforcement of EU competition law. In case of genuine ambiguities, the CJEU may interpret the Damage Directive and other EU law in the form of preliminary rulings. Thus, the CJEU is capable of incorporating certain features and concepts of the EU competition law into its caselaw that national courts must respect when they apply the relevant evidentiary rules. Such incorporation has given rise to a set of fragmentary and non-systemized rules of evidence when both EU law and national law apply in antitrust damages actions. This condition raises concerns when damages claimants are not certain of the applicable rules they could rely on, or of national courts’ application of those rules, or of the rights and obligations conferred to them by those rules. It also imposes higher requirements on the quality and capacity of national judiciaries and pushes national courts to be fully prepared for damages actions for EU competition law infringements. These features all reinforce the perception of EU competition law and damages actions for EU competition law infringements as highly specialized areas that are not easily accessible by ordinary judges or ordinary victims. Thus, damages actions for EU competition law infringements have deviated from other damages claims in normal civil torts.
  • Tapia Navarro, Nadia Valentina (Helsingin yliopisto, 2020)
    This dissertation focuses on victims of mass atrocities, subjects who are often portrayed in international law discourses as disempowered, passive, defenceless and docile. This portrayal prevents international law operators from evaluating the potential of domestic practices that are not only agentic, but may contribute to the development of international law. In focusing on victims of mass atrocities moreover, this thesis connects international law with domestic practices of victims of mass atrocities that resort to the category of ‘victim’ as well as other categories from international law in their struggles. The main contention of the dissertation is that domestic practices of those who use the language of international law, such as victims of mass atrocities, do not merely adopt such language as it is. Instead, they infuse this language with meanings that support their particular struggles and, through their actions, they also influence the formation of an identity associated with the category of victim. The dissertation consists of four articles and a summarising report. It has two main focal points: first, it focuses on the practices of the International Criminal Court (ICC) with regard to victims of mass atrocities; second, it focuses on cases of victims of mass atrocities that resort to the category of victim and other categories from international law, in Colombia. By contrasting these two, I suggest that there are varied and rich contributions through which victims of mass atrocities themselves can influence not only the shaping of legal categories, but more importantly, their own representations and identity. In Article I, I refer to the work of Jacques Rancière on politics, to reflect on victims of mass atrocity and their participation in the International Criminal Court. In practice, despite including a framework for victims’ participation, the International Criminal Court does not really provide victims with any spaces for self-representation. The reason is that this framework is based on an understanding of these victims as essentially disempowered individuals that must, therefore, be represented by others. This exclusion, I conclude, perpetuates the limited depiction of victimhood. Article II deals with the Peace Community of San José de Apartadó and its use of the category of victim. I show the group has a complex identity that challenges the representations of victims as defenceless and disempowered. I suggest that the group does not simply embrace international law, but attempts to develop it further in creative ways. Article III deals with the Movement of Victims of State Crimes (MOVICE). I show that through the category of victim, Movice attempts to introduce an alternative narrative of the internal armed conflict. I suggest that Movice is an example of how a movement of victims can adopt categories of international law to frame their struggles, and in doing so, infuse them with new meanings. While still focusing on Colombia, Article IV zooms out to include actions that are considered as agentic, as well as those that support the stereotype of the passive and defenceless victim. I suggest that the different actions of both victims and the government contribute to the formation of an identity of the victim, an identity that is never fully realised but always in dispute. Finally, in the summarising report, I reflect upon how the method of this dissertation combines a critical approach to law with an approach from below that considers domestic practices as relevant for international law. Moreover, I discuss three concepts that represent three different perspectives from which I consider the victims of mass atrocities, namely as political subjects, as subalterns, and as a disputed identity. I conclude by reflecting on the possibility of emancipation through the struggles that utilise the language of the law.
  • Talus, Anu (2019)
    In essence, the transparency and data protection regimes draw from different grounds. The aim of the research was to first identify and analyze the different requirements of the transparency and data protection regimes and thereafter seek the solution for balancing the said requirements. The rules examined in this research regulate the disclosure of information and processing of personal data by the EU´institutions. However, the solution for the tension is sought from the European law in a wider perspective. The analysis of the colliding rules draws from normative legal analysis. Critical legal positivism considers the rules only examples of issues pertaining to the surface level of law and this research draws essentially from the separation of rules and principles based on the doctrines elaborated by such scholars as Ronald Dworkin and Robert Alexy. The requirements drawing from the data protection legislation and the transparency legislation are contradictory to a certain extent and the tension on the level of rules is apparent. The most apparent contradiction relates to the purpose limitation principle, which closely relates to the further processing of personal data and the requirements to reason the disclosure of personal data. Simultaneously, the public access regime builds on a basis where applications for the requests of information do not need to be reasoned. However, the collision of rules does not necessarily reflect a collision of the underlying principles and the research will seek the balance between the examined rules by reconciling the underlying principles of the data protection and public access to documents regimes. After the essence of the examined rights has been identified, it will become clear that the collision does not exist on the level of principles. Besides privacy and self-determination, the requirement to have legal basis is considered to form the hard core of protection of personal data. This element also separates it from privacy. It follows that the right to protection of personal data can be reconciled with the right to public access to documents while the essence of both rights are preserved. A suggestion how to reconcile the examined rights will be given and the concluding analysis will also provide tools for balancing the said rights in the current legal framework by interpretation. There has been earlier study in this field of law. However, this study dates from 2007 and significant changes have taken place after that. A recast process on the Regulation 1049/2001 on public access to documents has been launched and a vast EU data protection reform was finished in the spring 2016. Also, the Court of Justice of the European Union has delivered significant decisions concerning the relationship between protection of personal data and transparency after 2007. Besides providing a new angle for seeking the solution by balancing the underlying principles, this research also provides first analysis of the relationship between protection of personal data and transparency in the current legal framework. Keywords data protection, privacy, personal data, transparency, purpose limitation, further processing, block exemption, democracy

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