Lakimies

Faktapremissi ja normipremissi: dualismista kohti holistisempaa oikeudellisen argumentaation teoriaa

Maija Aalto-Heinilä — 2024-12-12

Facts and norms: from a dualistic to a more holistic theory of legal argumentation

The structure of a legal decision is often represented by means of a syllogism in which the legal conclusion is deduced from the norm premise and the fact premise. In the theory of legal argumentation, the main focus has been on how the norm premise can be specified by means of different methods of interpretation. Less attention has been paid to the construction of the fact premise, and discussions regarding the evaluation of evidence are typically kept separate from theories of legal interpretation. In our article, we bring these two equally important parts of legal decision-making under the same umbrella and point out some ontological and epistemological similarities between questions of law and questions of fact. This is not meant to dismiss the practical function of the law/fact distinction: it is important especially with regard to the structuring and organising of court proceedings. However, recognising similarities between the formation of the norm premise and the fact premise may have an impact on how the nature of legal dogmatics is understood, as well as make us aware of the epistemic risks involved in both stages. We conclude our article by encouraging legal scholars from different fields to co-operate in the development of more holistic approaches to legal thinking, in which norms and facts are viewed from a more general perspective.

Strateginen yritysoikeus oikeustutkimuksessa

Vesa Annola — 2024-12-12

Strategic business law in legal research

Traditional legal research serves business, especially by defining the content of valid, applicable law. Also, strategic business law utilizes these results of legal dogmatics. However, strategic business law continues further. Attention is not only paid to law but also to operating models that are appropriate for solving certain business-related problems. As a result, the role of legal norms changes from an object to a tool. Adopting this strategic perspective may also change the nature of the research results. Instead of opinions regarding the content of applicable legal norms, the result may include recommendations on how it would be appropriate to operate in the regulatory framework. It is, at least partially, based on a legal analysis of regulation.

Different perspectives can be used in strategic business law to realise the goal. They contain at least proactive law, various perspectives that embody flexibility, and legal design. While each one has its own special perspective, they also support each other in achieving the goals of strategic business law. At the same time, strategic business law also works on the basis of traditional legal research. The role of tradition is reinforced by the established perspectives, especially the power and interaction offered by Law & Economics and de lege ferenda.

Perustuslain tulkinta Suomen ylimmissä tuomioistuimissa: empiirinen ja oikeusvertaileva tutkimus

Maija Dahlberg — 2024-12-12

Constitutional interpretation in the Finnish Supreme Courts: empirical and comparative study

In this article, I analyse the constitutional interpretations in the leading constitutional cases before the Finnish Supreme Court (Korkein oikeus, KKO) and the Finnish Supreme Administrative Court (Korkein hallinto-oikeus, KHO) (a total of 80 cases). The analysis is based on data in which we gathered information about the general features of the judgments, modes of argumentation (e.g. whether a literal/teleological interpretation/international legal sources/own precedents are used), and key constitutional concepts (e.g. whether reference is made to the rule of law or the principle of proportionality). The research questions in this article are: 1) What are the differences in the constitutional reasoning of the Finnish Supreme Courts compared to other Nordic countries, and what factors may explain any possible differences? and 2) How do the KKO and KHO differ in their constitutional reasoning, and what might explain these differences? The latter question is relevant to the discussion of whether the Finnish Supreme Courts should be merged, as any potentially fundamental differences in constitutional reasoning between the Supreme Courts may support the unification of these judicial bodies. Additionally, this research highlights why the constitutional interpretation practices of the Finnish Supreme Courts may diverge from one another. This is important to understand in order to avoid different constitutional interpretations between the KHO and KKO.

Hyvästit "Humen giljotiinille": David Humen moraalifisofia, oikeuden teoria ja käytäntö

Aleksi Heinilä — 2024-12-12

Farewell to “Hume’s guillotine”: The moral philosophy of David Hume, legal theory and practice

The philosophy of David Hume is often presented as sceptical, even though the aspects of his philosophy may be said to be just a starting point for his constructive philosophy, the goals of which are primarily moral-philosophical. In jurisprudence, Hume is mostly known for “Hume’s law”, the logical maxim according to which no set of nonmoral premises can entail a moral conclusion, which is taken to mark an absolute distinction between “is” and “ought”. Crossing this division would result in “naturalistic fallacy”. However, Hume’s own moral philosophy is built on bridging this gap. The article examines Hume’s moral philosophy and how the division between “is” and “ought” should be understood from this point of view in jurisprudence and legal decision-making. It is argued that the sharp division, still largely maintained in theory if not in practice, is not nearly as significant as it has often been held to be, and there is, in general, no need to maintain such an ontological division.

Oikeuden kieli ja automaatio – mahdoton yhtälö?

Ida Koivisto — 2024-12-12

The language of law and automation – an impossible equation?

The article discusses the language of law as an object of automation. The goal of the article is theoretical and its context is that of public law. When legal practices are increasingly automated, the question of how to translate the language of law into a computer code, becomes urgent. The article presents two theoretical perspectives regarding the indeterminacy of the language of law: H. L. A. Hart’s idea of the open texture of law, and the view of the Critical Legal Studies movement on the contradictory nature of the legal system, and the political bias in legal interpretation. Both views consider the formalistic and mechanistic interpretation of law as impossible due to the indeterminacy of the language of law. The article also discusses the discourse on so-called automation-friendly legislation and its endeavour to simplify legal language to facilitate automation. This discourse considers the formalistic interpretation of law – at least, implicitly – possible. Therefore, the main tension in the article is formed around the question of how the language of law is as an object of automation and what is lost – if anything – if the indeterminacy of law were to be reduced. The article argues that 1) the power or deliberation is the framework in which the indeterminacy of the language of law is conceptualised at least in public law thinking in Finland, and 2) the indeterminacy of the language of law is understood as an issue that makes automation more difficult but not impossible in mainstream discussions on legal automation. These arguments make visible new tasks to legal scholarship, as the changing roles of humans and machines applying law require new thinking and new conceptualisations.

Poissulkemislausekkeen sääntelystä ja oikeuskäytännöstä ulkomaalaisoikeudessa

Tuomas Kuokkanen — 2024-12-12

The regulation and application of the exclusion clause in refugee law

The article analyses the so-called exclusion clause by which certain individuals can be excluded from international protection. The exclusion clause is based on Article 1 F of the 1951 Refugee Convention. The clause is implemented in Article 12 and Article 17 of the EU Qualification Directive (2011/95/EU) and in section 87(2) and 88(2) of the Finnish Aliens Act.

At the outset, the article examines the rationale behind the exclusion clause. The article then deals with the regulatory framework and the guidance issued by the United Nations Refugee Agency (UNHCR) and the European Union Agency for Asylum (EUAA). After that, the case law of the Supreme Administrative Court of Finland during the period 2008–2023 is examined. In particular, the article focuses on the key elements and procedural aspects of the exclusion clause. As a conclusion, the article states that the application of the exclusion clause has been dynamic and multi-level. In the case law, the systematic aspects relating to the clause have been highlighted in the interpretation of the clause.

Kun taloustiede menetti otteensa amerikkalaisesta kilpailuvalvonnasta. Tapaustutkimus yhteiskunnallisen oikeustutkimuksen karikoista

Toni Malminen — 2024-12-12

When economics lost its grip on American antitrust enforcement. A case study on the pitfalls of sociolegal studies

The key concepts of antitrust and competition law – monopoly, barriers to entry, competition, costs, consumer welfare, relevant markets, etc. – derive from economics. Economics also features prominently in antitrust enforcement when antitrust agencies and courts assess antitrust damages, investigate cartels, evaluate monopolisation, and estimate the likely effects of mergers on consumer welfare. As a consequence, antitrust law is a great candidate for sociolegal studies and a prime example of a productive joint venture between science and adjudication.

The article is a historical case study on the potential pitfalls of multidisciplinary legal research and legal decision-making, which include the tension between science and ideology and the possible democracy deficit of scientifically oriented adjudication.

A new epoch began in law and economics in the 1950s when a group of economists and legal scholars associated with the University of Chicago contested American antitrust enforcement of the era. Deeming it excessive and often irrational, they sought to dethrone some leading precedents to let the free market have more sway in safeguarding economic efficiency. Their research programme made its weight felt in antitrust policy in the 1970s and 1980s when enforcement turned more lenient.

Antitrust economics, however, turned more enforcement friendly in the 1970s, as game theory and empirical industrial organisation theory seemed to show that anticompetitive conduct was more likely and prevalent than the Chicagoans had assumed. American courts, the Supreme Court in particular, have resisted this subsequent turn in antitrust economics up until our time. Why and what do we have to learn about this sequence? As academic communities are rife with disagreement, and various constituencies may strategically seek to deploy scholarship to their advantage, a healthy scepticism about science-based adjudication safeguards democracy and the rule of law.

Lapsen etu oikeuslähteenä erityisesti riita- ja hakemusasioissa

Sanna Mustasaari — 2024-12-12

Best interests of the child as a source of law

According to Article 3 of the UN Convention on the Rights of the Child (CRC), in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. In this article, we examine the concept of the best interests of the child, from the perspective of recent theoretical discussions on children’s rights and from the perspective of the Finnish legislation and case law. We specifically ask what it means to say that an action concerns a child. Traditionally, discussions about the best interests of the child as a decision-making principle have focused on the child’s position in the family and matters directly affecting the child, such as custody disputes. The discourse on children’s rights and child law has strongly emphasised the broad principle of the best interests of the child extending to all actions of the authorities, as outlined in the CRC. We explore how the best interests of the child is taken into account as a norm that determines the decision that will be reached, and how the scope of matters in which the best interests of the child are the most central decision-making criterion might be defined. The best interests of the child -norm has recently emerged in case law in interesting ways, for example, in a decision by the Supreme Court of Sweden concerning enforcement, where the best interests of the child prevented the seizure of a residential property due to a parent’s debt. In this article, we observe the use of the norm of the primacy of the best interests of the child and consider its possibilities in legal argumentation in various other types of matters, especially in different fields of civil law.

Oikeushyvien suojelu rikosoikeuden tavoitteena – rikosoikeuden tehtävistä ja rajoista

Kimmo Nuotio — 2024-12-12

The protection of legal interests as the aim of criminal law – on the functions and limitations of criminal law

Criminal law is said to have the aim of protecting legal interests, or legal goods, if we use the well-known German expression. These days, such purposes are intimately linked with the principles of criminalisation, which in turn binds the functions and limitations of criminal law to constitutional law as criminalisations also restrict the use of fundamental rights and human rights. This constitutionalisation of criminal law does not, however, do away with the need to discuss even more broadly the working of criminal law in protecting legal interests or legal goods. The current article discusses theoretically, but also resorting to practical examples, the challenges and changes in this regard that are topical today. Criminal law continues to protect individual freedom, to give an example; however, at the same time, the understanding of what this freedom in fact means is in flux. In the article, we raise some issues relating to the aims of sustainable development, and we also refer back to theories of the social contract. The thesis being presented is that we do still need a critical theory and discussion which can account for in a principled manner and also dynamically the different individual and societal needs that may arise, but at the same time take care of the fundamental demands of the justification of criminal law as well as refute the often too vague expectations that criminalisations and criminal law can solve societal problems. The claim is also that criminal law theorising needs once again to be connected to political theory.

De lege ferenda -tutkimusote vero-oikeudessa: pohdintaa teorian, käytännön ja tieteenalojen rajapinnoilla

Matti Urpilainen — 2024-12-12

De lege ferenda arguments in tax law research

The article examines de lege ferenda arguments in the context of the Finnish tax system. By providing de lege ferenda recommendations on how the current tax legislation ought to be amended, the academic tax law researcher participates in the tax policy debate. De lege ferenda arguments are more explicitly value-based than interpretive legal arguments, which are sometimes treated in tax jurisprudence as if they were neutral. The article discusses the difference between research-based de lege ferenda arguments and other types of tax policy arguments, such as those that are derived from economics. The article provides six practical examples of contexts where de lege ferenda arguments typically arise in the Finnish tax system. The examples show that de lege ferenda arguments are typically related to technical aspects of the tax system, instead of its fundamental structure. Research-based de lege ferenda arguments arise from a specific jurisprudential understanding of how the tax system works. This internal view of the tax system is unique to legal research and cannot be substituted, for example, with economic analyses. The article concludes that de lege ferenda arguments could be sought and presented more actively in Finnish academic tax law research.

KHO 2024:80 – poliisin tiedonsaantioikeus kadonneen henkilön etsimiseksi

Helinä Tiura-Virta — 2024-12-12

Yleisesitys muoti- ja designalan keskeisestä juridiikasta

Maria Rehbinder — 2024-12-12

Teorian ja käytännön vuorovaikutus rikoslainopissa

Raimo Lahti — 2024-12-12

Oikeuden metodit ja teoria käytännön asianajotyössä

Eelis Paukku — 2024-12-12

Elävää oikeuskulttuuria

Janne Salminen — 2024-12-12

Puheenjohtaja, professori Janne Salmisen avaussanat Oikeuskulttuurin päivässä 8.11.2024

Päätöksentekijän liikkumavara: harkintavalta ja haavoittuvuus turvapaikkaprosessissa

Johanna Vanto — 2024-12-12

Suomalaisen Lakimiesyhdistyksen tutkimusrahastosta ja Ministeri, molempien oikeuksien tohtori K. G. Idmanin rahastosta myönnetyt palkinnot ja apurahat

Suomalainen Lakimiesyhdistys — 2024-12-12

Olga ja Kaarlo Oskari Laitisen säätiön myöntämät apurahat

Laitisen säätiö — 2024-12-12

Lakimies 2024: Sisältö

Suomalainen Lakimiesyhdistys — 2024-12-12

Tämän numeron kirjoittajat

Kaisa Karppinen — 2024-12-12

Kunta ja käräjäsali. Oikeudellinen pääoma Ilmajoen pitäjässä 1860–1890

Tuomas Jussila — 2024-12-12

Lectio praecursoria

Jussila, Tuomas. Kunta ja käräjäsali. Oikeudellinen pääoma Ilmajoen pitäjässä 1860–1890

Arja Rantanen — 2024-12-12

Virallisen vastaväittäjän, FT Arja Rantasen Turun yliopiston oikeustieteelliselle tiedekunnalle antama 27.5.2024 päivätty lausunto vähäisin muutoksin.

Olavi Heinonen in memoriam

Raimo Lahti — 2024-12-12