Comparative law

Comparative law as a method of legal science is traditionally understood as the com-parison of the legal systems of different nations. According to Zweigert & Kötz, this can be done on a large scale or on a smaller scale. They draw a distinction between macro-comparison, i.e. the comparison of the spirit and style of different legal systems, the methods of thought and procedures they use, and micro-comparison, dealing with specific legal institutions or problems, i.e. with the rules used to solve actual problems or particular conflicts of interest. However, as Zweigert & Kötz point out, the divid-ing line between macrocomparison and microcomparison is flexible, and one must often do both at the same time.²² A similar comparison has been drawn by David²³. The comparison of the selected four legal systems in the present thesis, in addition to the Finnish one, remains mainly at the macro level. However, some case law of those legal systems is looked into, entailing some micro-level comparison. That is necessary to confirm the findings of scholars. A similar division as has been made by Zweigert

& Kötz and David may also be applied to legal linguistics, and comparison is a rather usual research method used for the study of legal language. According to Mattila, macro-level legal linguistics means research that focuses on legal languages at a general level, covering e.g. history, main characteristics or coherence, whereas micro-level legal linguistics deals with the use and meaning of individual terms.²⁴ For the purposes of the present study, both are needed. As pointed out by Husa, it is not sufficient to study case law, but it is also necessary to know the context i.e. the prevailing customs and practices²⁵. Thus, a wider context with the history of the European Convention on

22 Zweigert & Kötz 1998, p. 4 and 5.

23 David 1982, p.110-112.

24 Mattila 2010 (1), p. 729.

25 See Husa 2011, p. 222.

Human Rights and the development of its interpretation has been chosen as the basis of comparison, added by a comparison of the approaches of the selected legal systems to the case law under it, before advancing to the comparison of national case law of the Finnish supreme jurisdictions.

The overall approach to comparison in this research is rather descriptive when the constitutional developments, sources of law and methods of interpretation of law in the five legal systems as well as the judgments of the European Court of Human Rights are studied. The purpose such macro-comparison is to see to what extent the Finnish constitutional traditions have similarities with the other legal systems, and whether any differences found may explain the late accession to the European Convention on Human Rights, and whether there are such differences in constitutional traditions compared with the other four legal systems that may explain challenges in the reception of the case law of the European Court of Human Rights. The more the developments in the legal systems share similarities upon accession to the Convention, the more reason there is to conclude that the changes have been imposed by the Convention. The wider historical reasons for the Finnish constitutional developments are kept in mind while comparing the legal systems. A similar comparative approach is used to the study of the judicial style and traditional methods of interpretation, in the light of those of the European Court of Human Rights. As explained in the foregoing, the purpose of that comparison is also to exclude the presence of foreign influence in the transition of the way of interpreting the European case law by the Finnish supreme jurisdictions.

To start with, comparison is carried out to analyse the presence of selected consti-tutional traditions in the language of the European Convention on Human Rights as well as the further impact of the Convention on the development of national legal traditions. This does not mean that those constitutional traditions would be the only ones that have affected the contents of the Convention. The language of the Conven-tion is analysed in the light of other corresponding human rights convenConven-tions, and compared with selected national instruments for the protection of fundamental rights or basic rights and liberties, in an effort to see how the elements included in other instruments have affected the European Convention. Further comparison is made between the approaches of the selected legal systems to the different sources of law and particularly to the application of case law as a source of law, as well as between the judicial styles of those legal systems. To what extent discourse of the European Court of Human Rights fits in the judicial traditions of Finland, by drawing some comparisons with the selected other States, is analysed. Furthermore, to what extent the European Court of Human Rights has paid attention to either internal or lateral traditions of states parties is also briefly analysed. Comparison is also used in the dis-course analysis of the case law of the Finnish supreme jurisdictions, in an effort to see to what extent the case law of the European Court of Human Rights and the transition of the legal culture is visible in the national case law. Furthermore, the language used

by the Court in its judgments is analysed and compared with the terminology used in the Convention, and further with the judicial language of selected states, to assess the transition taking place in the Finnish case law in an effort to see to what extent it can be explained through national implementation of the European case law. The purpose of looking into other legal systems is to exclude the impact of other foreign elements that would be more dominating than the European Convention on Human Rights and the relevant case law. Furthermore, it is presumed that the development may be similar in the selected European legal systems as regards changes in the application of the European Convention and the European case law as sources of law, and that the changes have emerged for the same reason, although there may be differences in the techniques used for interpretation. Thus, as the final step of comparison, the judicial style of the judgments of the Finnish supreme jurisdictions is analysed over a defined period of time, to see whether and in what manner the judicial style of the European Court of Human Rights has affected or has started to affect the judicial style in Fin-land. In doing that, the cases of both Finnish supreme jurisdictions are compared with one another. Micro-comparison through discourse analysis is used to analyse details.

David identifies various problems that may be related to comparison, most im-portantly the different conceptions of what is understood by rules of law, differences between concepts, as well as differences between the structures of law and different classifications of rules of law²⁶. Those differences are paid attention to in the present study when comparing the different approaches to sources of law and interpretation of law. However, as explained in the foregoing, some micro-level comparison is done by means of a more refined research into national case law. When compared with the earlier research carried out on the application and interpretation of the European Convention on Human Rights and the relevant case law of the European Court of Human Rights in Finland, which has been close to the mainstream research on the Convention, the purpose of the last phase of research is to carry out in in-depth analysis of the case law of the Finnish supreme jurisdictions. That also involves necessarily macro-comparison between the different judgments, but discourse analysis is used for the purposes of micro-comparison. Thus, in the present thesis, discourse analysis is a more detailed method of comparative research. Discourse analysis as a method of research is addressed in more detail below to highlight its relevance for micro-comparison and in-depth analysis of change in the legal culture.

The approach of Mattila to legal linguistics and comparative law shares much in common with that of Zweigert & Kötz. According to Husa, the latter represent the so-called functional comparative law which is the mainstream theory²⁷. Thus, it is interesting from the point of view of legal linguistics in that both sciences attempt to

26 David 1982, p. 110-113.

27 Husa 2011, p. 211.

study the functions that a given concept or term have in different contexts, i.e. in differ-ent legal systems²⁸. In the present study, it is particularly the case law of the European Court of Human Rights that constitutes such a concept, and it is supplemented by the different approaches to its interpretation. Glenn applies a somewhat different approach to the study of legal systems. Abandoning the traditional and perhaps more practical comparison between legal systems, Glenn goes beyond the limits of a nation-state by analysing legal traditions from a wider perspective. Glenn draws a distinction between internal traditions (i.e. traditions that exist within a larger tradition) and lateral tradi-tions that appear to exist across the borders of several larger legal traditradi-tions²⁹. This distinction is interesting for the purposes of the present study in that the language of human rights law may be stated to exist across the borders of national legal systems and traditions, representing thus a lateral tradition in terms of Glenn, while it coexists with national traditions both with regard to the interpretation of law and to the protection of human rights. In the Finnish legal system and jurisprudence, the interpretation of constitutional rights coexists with that of the rights protected by the European Convention on Human Rights. Also, there are other elements existing in several or all legal systems, which are based on the common origins of law for example through the influence of Roman law and the use of Latin. In the view of Glenn, for a tradition to become universal, i.e. applicable within all the legal traditions to which it adheres, a certain degree of normativity is required. Furthermore, he suggests that it is also necessary to pay attention to other traditions. As Glenn points out, “whether a given tradition is universalising […] will be a question of how it reconciles its own normativity with its own tolerance of other traditions. This latter question raises the general issue of the complexity of traditions, of how traditions manage their relations with other traditions.”³⁰ Indeed, this is relevant for the transmission of human rights language across borders. It may be held that for a supranational element to be internalised by a national legal tradition, it must some way or another fit in the existing framework.