Siviilioikeuden hiipivä eurooppalaistuminen ja Suomen oikeuslähdeoppi
Avainsanat:
argumentaatio, DCFR, eurooppalaistuminen, oikeuslähdeoppiAbstrakti
Creeping Europeanisation of private law and the Finnish doctrine of sources of law
The article discusses the feasibility of the traditional Finnish doctrine of sources of law in the light of the creeping Europeanisation of private law. The focus is on horizontal, cross-border development of legal reasoning in doctrine and case-law, by using sources from other EU Member States. The use of the Draft Common Frame of Reference (DCFR) in national settings is discussed as an example. The many ways in which the Finnish and Swedish Supreme Courts have referred to the DCFR illustrate the difficulty in discussing the issue in the framework of the traditional doctrine of sources of law. The challenges lie in its relatively formal nature: It presents sources of law in a schematic form that leads to on/off-types of question, and it conveys the impression of a closed and hierarchical system of sources. Obviously, a new type of source like the DCFR, which appears to contain both substantive and authoritative elements, does not fit in very well in such a formal doctrine. To understand its present use and its possibilities one must ask more analytical questions than the traditional binary one, were the DCFR to be considered a source of law or not. At least four groups of question to be addressed are identified in the article. Firstly, one should require open reasoning concerning why the DCFR, or comparative materials in general, are included in the legal reasoning at hand; several alternative answers are possible. Secondly, one has to address the role and strength of the DCFR as an argument in comparison with other sources and thirdly, one has to look at the nature of the argument in the balance between substantive and authoritative reasons. Finally, it is important to discuss the choice of the DCFR as compared to other sets of principles as well as direct comparative materials. Of course, the use of an extensive web of questions is primarily a task for legal doctrine.
