Finnish judicial style

Swedish was, as observed in the foregoing, the language of legislation and court pro-ceedings in Finland until a late moment and Finnish is thus rather young as a legal language. However, it is perhaps the language of court proceedings that played the most significant role in the development of Finnish as a legal language, despite the undeniable impact of early translations of legislation. Important steps in this respect were the first court records that were drafted in Finnish and the use of Finnish as a language of legal science, as well as⁴⁴¹ a general change of the practice applied to the language of authorities and court proceedings, particularly a language decree issued in 1863 that officially allowed the use of Finnish in official documents directly concerning the Finnish population. However, it was not possible to use Finnish in court proceedings until a new decree was issued in 1883, concerning the Swedish and Finnish in court proceedings. Thereby Finnish became the main language of court proceedings due to the fact that the majority of the population was Finnish-speaking.⁴⁴² Despite this, the legislation was still drafted in Swedish, and then translated into Finnish, during the Russian rule.⁴⁴³ Nevertheless, the drafting of decisions and records in Finnish supported the development of the language of legislation and legal language in general in Finland.

The early Finnish judgments were not very clearly structured. Subtitles were not used to structure the judgment, and the reasoning and conclusion were typically placed in the same sentence, cut by several defining clauses. Consequently, the sentences tended to be long and hard to understand by others than lawyers. The understanding of judgments was made even more difficult by the Swedish influence, as the earliest judgments were drafted in Swedish and that language had a considerable influence even on the judgments drafted in Finnish. This style of writing judgments was for a long time defended by its preciseness and conciseness, but has later been given up.

However, until the 1970s, the judgments followed a certain pattern, and the style was rather archaic. Today, particularly the statement of facts and the presentation of the

441 Pajula 1960, p. 149 and 154.

442 Pajula 1960, p. 178-180, and p. 201.

443 Landqvist 2010, p. 45.

views of the parties are, insofar as the sentence structure is concerned, like any de-scriptive text. The different parts of the judgments are separated by subtitles and the conclusions are placed at the end of the judgment.⁴⁴⁴ When looking into the case law of the supreme jurisdictions⁴⁴⁵, one may note that there is some degree of variation in the discourse and style of judgments both between courts and within court, although the judgments generally follow a pre-determined structure.

As mentioned in the foregoing, the style of legal reasoning in Finnish court judg-ments has similarities with the German traditions, with some minor differences. The focus is clearly on the contents of legislation, which is considered the primary source of law. Although the courts have increasingly started to refer to the case law of the Eu-ropean Court of Human Rights, for instance, the legalistic tradition can still be clearly seen in the reasoning. This might be explained by the fact that the conceptual legal thinking (Begriffsjurisprudenz) was a strong element until the 1950s, as given account of by Aarnio⁴⁴⁶. According to Aarnio, over the past fifteen years, a clear development in the style of reasoning towards more discussive can be identified. However, the in-ternal structure of reasoning is still more deductive than discussive as to its nature.⁴⁴⁷ The rather recent developments in the style of legal reasoning used by the courts, most strikingly by the Supreme Court, is a result of a long process which seems to involve not only the change in the legal culture (legal theory) pointed out by Aarnio⁴⁴⁸, but also the increasing presence of international elements in the legal system⁴⁴⁹. Particu-larly the binding nature of the judgments of the European Court of Human Rights de facto forces national courts to take the judgments into account. This could be seen as a shift towards the recognition of case law as a source of law – in some cases with equally binding nature as that of written legislation – and towards harmonisation of legal traditions between statutory law and common law systems. One cannot speak of a system of precedence within the meaning of a common law system but, as was observed in the foregoing, the doctrine of precedents used by the European Court of Human Rights is in fact closer to the German and Nordic ones, which should make it easier for the Finnish judiciary to adapt to the discourse and style of judgments of the Court.

444 Mattila 2010(3), p. 195, 199 and 200.

445 For the analysed judgments, see Chapter V.

446 Aarnio 1997(1), p. 37-39.

447 See Aarnio 1997(2), p. 72. Aarnio observes that substantive arguments are increasingly an integral part of reasoning, which also means that in several cases the reasoning is nowadays quite extended and elaborate, although there are still examples of the contrary.

448 For details, see Aarnio 1997(1), p. 44-52.

449 Lavapuro 2011, p. 468. According to Lavapuro, a significant change in that respect has taken place around 2008, particularly in the Supreme Court but to some extent also in the Supreme Administrative Court, with has lead to a more detailed balancing of the principles set out in the case law of the European Court of Human Rights. (Ibid.)

When compared with the style of the judgments of the European Court of Human Rights, one may note that until late 1990s, Finnish judgments were often criticised for not being well enough reasoned. Particularly in the field of administrative law, the reasoning sometimes consisted of the statement of the applicable provisions of law, without detailed explanation for the decision in other respects. As of the end of the 1990s, however, the reasoning in the Finnish judgments has become more detailed, largely due to the influence of the judgments of the European Court of Human Rights but also to that of the European Court of Justice. Thus, apart from strictly legal discourse, there is today increasingly supplementing general practical reasoning present in the judgments, which brings in more subjective elements. The rather persisting practice of brief reasoning might have had the effect that the Finnish courts have not been particularly receptive to the argumentation of the European Court of Human Rights, although in the past few years one may note a tendency to increasingly refer to the European Court’s case law. The change means, as a minimum, that the case law is now accepted as a binding source of law. Also, the technique of referring to case law appears to be undergoing a transition towards stronger internal elements, which is discussed in more detail in section 4.5 below. However, it does still not prove that the judicial style of the European Court of Human Rights would have been internalised. The degree of internalising the style of argumentation may be assessed by looking at how the vari-ous standards and methods of interpretation as well as precedents are used, including both legal and general practical argumentation. Lavapuro observes that in principle, the national courts should increasingly interpret the European Convention on Human Rights in the light of corresponding principles of interpretation as the European Court of Human Rights does. He finds that they have done so to some extent, particularly the application of the principle of proportionality is self-evident and is traditionally an inherent part of the resolution of conflicts of interpretation, but finds that the same requirement concerns even the more controversial principles of interpretation, such as the principle of evolutive interpretation, and in his view they should be applied more often. Instead, he calls for caution in respect of the application of the principle of margin of appreciation.⁴⁵⁰ This is addressed also in more detail in section 4.5.

A closer comparison between the judicial styles indicates indeed that although the judicial style of the Finnish supreme jurisdictions has not as such changed dramatically over the past twenty years, the style of referring to the judgments of the European Court of Human Rights has gradually changed, which might have even further-reaching effects on the reasoning. In the early judgments, the case law of the European Court of Human Rights were already clearly treated as an internal element of justification,

450 Lavapuro 2011, p. 469. According to Lavapuro, the doctrine of the margin of appreciation should rather be seen as a principle of determining the distribution of competence between the European Court of Human Rights and the national authorities. (Ibid.)

in terms of Alexy, whereas there appears to be a gradual change towards using them increasingly as an even stronger internal element of legal discourse, although the change is still not definite. Lavapuro has studied that change particularly in the light of a number of judgments of the Supreme Court and considers that it represents a rather deep-going change in the legal culture and finds that the judicial argumentation has become wider in scope and that in his view there can already be seen some degree of dialogue in the application of the case law of the European Court of Human Rights.

He finds that it is also necessary for the national courts to adopt at least part of the logic of the European Court of Human Rights, to avoid future violations of the Conven-tion, although there are challenges in its application at the national level.⁴⁵¹ Lavapuro’s observation can be largely shared, particularly when looking at the national case law as a whole and comparing it with that of the European Court of Human Rights. Some form of dialogue can be observed not only in the cases of the Supreme Court referred to by Lavapuro⁴⁵², but also in certain more recent cases of the Supreme Court and the Supreme Administrative Court⁴⁵³. Those cases are looked into in more detail below.

Also, the question of whether one may speak of a real dialogue is analysed closer.

Thus, the impact of the European case law on the discourse of the Finnish supreme jurisdictions has been rather impressive, and it has taken place within a relatively short period of time, which merits that development to be studied further. Given that Finland was not a State party to the Convention during those years when the Court’s judicial style began to emerge and develop, there is hardly any impact from the Finn-ish legal system on the case law despite the common legal traditions with Sweden.

Today, however, there is influence through the interaction between the European Court of Human Rights and national jurisdictions, in the same way as for any legal system represented in the Court. As observed in the foregoing, the development of the Court’s case law is based on its discourse and judicial style. An essential part of this is the way in which the Court interprets law, i.e. the Convention. The following two sections provide an overview of how the case law of the European Court of Human Rights develops through the application of the various methods of interpretation, including an analysis of whether the application of an individual method is typically

451 Lavapuro 2011, p.474. Those challenges include, in particular, the difficulties in deriving rules of general application given that the Court’s judgments are based on individual applications, the differences in the traditional principles of interpretation which in Finland are often based on material law, and the changes taking place in the Court’s case law. Particularly the principle of evolutive interpretation imposes challenges as, in principle, each court should be able to interpret the European Convention on Human Rights in the light of its case law as it is at the moment of issuing the judgment. (Ibid. p. 475)

452 KKO:2001:96, KKO:2002:116, KKO:2005:136, KKO:2009:27 and KKO:2009:80.

453 Lavapuro has also paid attention to the latter judgment of the Supreme Administrative Court, which is also interesting in that it was taken to the European Court of Human Rights which found that no violation had taken place.

linked with signs of transition of the legal culture and what types of signs can be detected. It is argued that such a link exists with certain methods of interpretation, showing more signs of transition. As mentioned in the foregoing, those signs may include various linguistic or textual elements. Further, it is assessed to what extent the transition of the legal culture of protecting human rights and fundamental rights (through development of case law) has the potential of creating problems for national jurisdictions. In section 4.5 below, similar signs are looked for in the judgments of the Finnish supreme jurisdictions.

3.3 Starting point of interpretation – general principles of