Hyvän hallinnon muunnelmat : Julkisoikeudellinen tutkimus

This doctoral thesis analyses the concepts of good governance and good administration. The hypothesis is that the concepts are radically indeterminate and over-inclusive. In the study the mechanisms of this indeterminacy are examined: why are the concepts indeterminate; how does the indeterminacy work and, indeed, is it by any means plausible to try to define the concepts in a closed way? Therefore, the study focuses on various current perspectives, from which the concepts of good governance and good administration are relevant and what kind of discursive contents they may include. The approach is both legal (a right to good administration) and one of moral philosophy and discourse analysis. It appears that under the meta-discourse of good governance and good administration there are different sub-discourses: at least a legal sub-discourse, a moral/ethical sub-discourse and sub-discourses concerning economic effectiveness and the promotion of societal and economic development. The main claim is that the various sub-discourses do not necessarily identify each other s value premises and conceptual underpinnings: for which value could the attribute good be substituted in different discourses (for example, good as legal, good as ethical and so on)? The underlying presumption is, of course, that values are ultimately subjective and incommensurable. One possible way of trying to resolve the dynamics of possible discourse collisions is to employ the systems theory approach. Can the different discourses be interpreted as autopoietic systems, which create and change themselves according to their own criteria and are formed around a binary code? Can the different discourses be reconciled or are they indifferent or hostile towards each other? Is there a hegemonic super discourse or is the construction of a correct meaning purely contextual? The questions come back to the notions of administration and governance themselves the terms the good in its polymorphic ways is attempting to define. Do they engage different political rationalities? It can be suggested that administration is labelled by instrumental reason, governance by teleological reason. In the final analysis, the most crucial factor is that of power. It is about a Schmittian battle of concepts; how meanings are constructed in the interplay between conceptual ambiguity and social power. Thus, the study deals with administrative law, legal theory and the limits of law from the perspective of revealing critique.

Administrativa sanktioner – Utmaningar och möjligheter

I seminariet samlades nordiska experter inom fältet för att diskutera om de aktuella frågorna gällande administrativa sanktioner.

Fatigued driving : prevalence, risk factors and groups, and the law

Fatigue and sleepiness are major causes of road traffic accidents. However, precise data is often lacking because a validated and reliable device for detecting the level of sleepiness (cf. the breathalyzer for alcohol levels) does not exist, nor does criteria for the unambiguous detection of fatigue/sleepiness as a contributing factor in accident causation. Therefore, identification of risk factors and groups might not always be easy. Furthermore, it is extremely difficult to incorporate fatigue in operationalized terms into either traffic or criminal law. The main aims of this thesis were to estimate the prevalence of fatigue problems while driving among the Finnish driving population, to explore how VALT multidisciplinary investigation teams, Finnish police, and courts recognize (and prosecute) fatigue in traffic, to identify risk factors and groups, and finally to explore the application of the Finnish Road Traffic Act (RTA), which explicitly forbids driving while tired in Article 63. Several different sources of data were used: a computerized database and the original folders of multidisciplinary teams investigating fatal accidents (VALT), the driver records database (AKE), prosecutor and court decisions, a survey of young male military conscripts, and a survey of a representative sample of the Finnish active driving population. The results show that 8-15% of fatal accidents during 1991-2001 were fatigue related, that every fifth Finnish driver has fallen asleep while driving at some point during his/her driving career, and that the Finnish police and courts punish on average one driver per day on the basis of fatigued driving (based on the data from the years 2004-2005). The main finding regarding risk factors and risk groups is that during the summer months, especially in the afternoon, the risk of falling asleep while driving is increased. Furthermore, the results indicate that those with a higher risk of falling asleep while driving are men in general, but especially young male drivers including military conscripts and the elderly during the afternoon hours and the summer in particular; professional drivers breaking the rules about duty and rest hours; and drivers with a tendency to fall asleep easily. A time-of-day pattern of sleep-related incidents was repeatedly found. It was found that VALT teams can be considered relatively reliable when assessing the role of fatigue and sleepiness in accident causation; thus, similar experts might be valuable in the court process as expert witnesses when fatigue or sleepiness are suspected to have a role in an accident’s origins. However, the application of Article 63 of the RTA that forbids, among other things, fatigued driving will continue to be an issue that deserves further attention. This should be done in the context of a needed attitude change towards driving while in a state of extreme tiredness (e.g., after being awake for more than 24 hours), which produces performance deterioration comparable to illegal intoxication (BAC around 0.1%). Regarding the well-known interactive effect of increased sleepiness and even small alcohol levels, the relatively high proportion (up to 14.5%) of Finnish drivers owning and using a breathalyzer raises some concern. This concern exists because these drivers are obviously more focused on not breaking the “magic” line of 0.05% BAC than being concerned about driving impairment, which might be much worse than they realize because of the interactive effects of increased sleepiness and even low alcohol consumption. In conclusion, there is no doubt that fatigue and sleepiness problems while driving are common among the Finnish driving population. While we wait for the invention of reliable devices for fatigue/sleepiness detection, we should invest more effort in raising public awareness about the dangerousness of fatigued driving and educate drivers about how to recognize and deal with fatigue and sleepiness when they ultimately occur.

Onko varhaisen tuen päiväkoti mahdollinen? : Tutkimus varhaiskasvatuksen yhteisöllisestä kehittämisestä

Is the early childhood day care facility possible? The research considering communal development of the early education. In Finland mothers and fathers look after 400 000 pre-school children. Half of these attend day care facilities, in which 50 000 staff are employed. The aim of this research is to develop co-operation practices within the day care centre. This research refines and expands my own interest in and knowledge of day care management and content development. The basis of the research draws upon ethnographic material covering the period 1999–2005. The day care centre chosen as a central informant was the first suburban centre founded in 1963, and it provided a rich local and welfare state research perspective. It became clear that the day care facility’s co-operation practices formed the basis of bringing up children and at the same time produced a new multi-operational and multi-layered community for child participation. Adult day care centre workers bringing up the children as a professional work and solutions defining the conditions for the work are expressed in a child’s upbringing. This obviously has an impact in where as the development of communities. From the human and community scientific point of view, the group of youngest children will take up a future position as key players in communities as essential actors and reformers. The research was carried out as multiphase and multiscientific practical research and iterative data formation. The results verified that the co-operation between parents and day care staff produces important benefits for all the stakeholders. However, the day care staff has difficulties in implementing the benefits. During the research process, it became clear that conceptually day care staff saw the practices as ”very important, but not easily realised in practice”. As a result this demanded further research to address this issue and to extend this to the carefacility’s co-operation practises and their communal and social conditions. The research looks at the carefacility’s co-operation with key stakeholders. At the same time it undertakes an analytical and historical examination of carefacilitys’s with an experimental focus as two day care centres chosen as experimental objects. The results of the research showed that the benefits gained by children were determined by the day care centre’s socio-political structure and the parent’s resources. The research framework categorised early childhood education as generational and gender based structures. As part of the research, the strains endemic to these formations have been examined. The system for bringing up children was created as part of a so called welfare state project by implemented by the Day Care Act in year 1973. The law secured the subjective right for every pre-school child to have access to day care facilities. The law also introduced a labour and sosiopolitical phase and the refinement of the day care facility’s education-care concept. The latest phase that started during the early 1990´s was called the market-based social services strategy. As a result of this phase, state support was limited and the screening function of the law was relaxed. This new strategy resulted in a divisive and bureaucratic social welfare system, that individualised and segregated children and their parents, leaving some families outside the communal and welfare state benefit net. The modern day care centre is a hybrid of different aims. Children spend longer and more irregular time in day care. The families are multicultural and that requires more training for the staff. The work in day care has been enhanced, for example he level of education for the staff has been lowered and productivity has been improved. However, administrative work and different kinds of support and net work functions together with the continuous change have taken over from the work done face to face with children. Staff experiences more pressure as the management and the work load has increased. Consequently the long-term planning and daily implementation of the nuclear task of the day care facility is difficult to control. This will have an effect on both motivation and manageability of the work. Overall quality of the early childhood upbringing has been weakened. The possibilities for the near future were tested in the two day care centres chosen as an experi-ment objects. The analysis of these experiments showed that generative interaction work will benefit everyone: children, parents and employees. The main results of the research are new concepts of an early support day care centre, which can be empirically and theoretically possi-ble for development the near future. Key words: Day care facility’s co-operation practises, early childhood education as generational structure, child’s multi-operational and multi-layered community, multi-subjective operator, generative interaction work, communal composition.

Posted Workers and Free Movement of Services in the European Union – the Impact on National Employment and Immigration Law

This thesis examines posting of workers within the free movement of services in the European Union. The emphasis is on the case law of the European Court of Justice and in the role it has played in the liberalisation of the service sector in respect of posting of workers. The case law is examined from two different viewpoints: firstly, that of employment law and secondly, immigration law. The aim is to find out how active a role the Court has taken with regard these two fields of law and what are the implications of the Court’s judgments for the regulation on a national level. The first part of the thesis provides a general review of the Community law principles governing the freedom to provide services in the EU. The second part presents the Posted Workers’ Directive and the case law of the European Court of Justice before and after the enactment of the Directive from the viewpoint of employment law. Special attention is paid to a recent judgment in which the Court has taken a restrictive position with regard to a trade union’s right to take collective action against a service provider established in another Member State. The third part of the thesis concentrates, firstly, on the legal status of non-EU nationals lawfully resident in the EU. Secondly, it looks into the question of how the Court’s case law has affected the possibilities to use non-EU nationals as posted workers within the freedom to provide services. The final chapter includes a critical analysis of the Court’s case law on posted workers. The judgments of the European Court of Justice are the principal source of law for this thesis. In the primary legislation the focus is on Articles 49 EC and 50 EC that lay down the rules concerning the free movement of services. Within the secondary legislation, the present work principally concentrates on the Posted Workers’ Directive. It also examines proposals of the European Commission and directives that have been adopted in the field of immigration. The conclusions of the case study are twofold: while in the field of employment law, the European Court of Justice has based its judgments on a very literal interpretation of the Posted Workers’ Directive, in the field of immigration its conclusions have been much more innovative. In both fields of regulation the Court’s judgments have far-reaching implications for the rules concerning posting of workers leaving very little discretion for the Member States’ authorities.

Rwanda Crisis and Genocide in Case Law of Rwanda Tribunal

After the Second World War the public was shocked to learn about the horrors perpetrated. As a response to the Holocaust, the newly established United Nations adopted the Genocide Convention of 1948 to prevent future genocides and to punish the perpetrators. The Convention remained, however, almost dead letter until the present day. In 1994, the long-lasted tension between the major groups of Hutu and Tutsi in Rwanda erupted in mass scale violence towards the Tutsi ethnic group. The purpose was to eradicate the Tutsi population of Rwanda. The international community did not halt the genocide. It stood by idle, failing to follow the swearing-in of the past. The United Nations established the International Criminal Tribunal for Rwanda (the ICTR) to bring to justice persons responsible for the genocide. Ever since its creation the ICTR has delivered a wealth of judgements elucidating the legal ingredients of the crime of genocide. The case law on determining the membership of national, ethnic, racial or religious groups has gradually shifted from the objective to subjective position. The membership of a group is seen as a subjective rather than objective concept. However, a totally subjective approach is not accepted. Therefore, it is necessary to determine some objective existence of a group. The provision on the underlying offences is not so difficult to interpret compared to the corresponding one on the protected groups and the mental element of genocide. The case law examined, e.g., whether there is any difference between the words killing and meurtre, the nature of mental harm caused by the perpetrator and sexual violence in the conflict. The mental element of genocide or dolus specialis of genocide is not thoroughly examined in the case law of the ICTR. In this regard, reference in made, in addition, to the case law of the other ad hoc Tribunal. The ICTR has made a significant contribution to the law of genocide and international criminal justice in general. The corpus of procedural and substantive law constitutes a basis for subsequent trials in international and hybrid tribunals. For national jurisdictions the jurisprudence on substantive law is useful while prosecuting international crimes.

Reinventing Nordic Openness : Transparency and State Information in Finland

The study explores new ideational changes in the information strategy of the Finnish state between 1998 and 2007, after a juncture in Finnish governing in the early 1990s. The study scrutinizes the economic reframing of institutional openness in Finland that comes with significant and often unintended institutional consequences of transparency. Most notably, the constitutional principle of publicity (julkisuusperiaate), a Nordic institutional peculiarity allowing public access to state information, is now becoming an instrument of economic performance and accountability through results. Finland has a long institutional history in the publicity of government information, acknowledged by law since 1951. Nevertheless, access to government information became a policy concern in the mid-1990s, involving a historical narrative of openness as a Nordic tradition of Finnish governing Nordic openness (pohjoismainen avoimuus). International interest in transparency of governance has also marked an opening for institutional re-descriptions in Nordic context. The essential added value, or contradictory term, that transparency has on the Finnish conceptualisation of governing is the innovation that public acts of governing can be economically efficient. This is most apparent in the new attempts at providing standardised information on government and expressing it in numbers. In Finland, the publicity of government information has been a concept of democratic connotations, but new internationally diffusing ideas of performance and national economic competitiveness are discussed under the notion of transparency and its peer concepts openness and public (sector) information, which are also newcomers to Finnish vocabulary of governing. The above concepts often conflict with one another, paving the way to unintended consequences for the reforms conducted in their name. Moreover, the study argues that the policy concerns over openness and public sector information are linked to the new drive for transparency. Drawing on theories of new institutionalism, political economy, and conceptual history, the study argues for a reinvention of Nordic openness in two senses. First, in referring to institutional history, the policy discourse of Nordic openness discovers an administrative tradition in response to new dilemmas of public governance. Moreover, this normatively appealing discourse also legitimizes the new ideational changes. Second, a former mechanism of democratic accountability is being reframed with market and performance ideas, mostly originating from the sphere of transnational governance and governance indices. Mobilizing different research techniques and data (public documents of the Finnish government and international organizations, some 30 interviews of Finnish civil servants, and statistical time series), the study asks how the above ideational changes have been possible, pointing to the importance of nationalistically appealing historical narratives and normative concepts of governing. Concerning institutional developments, the study analyses the ideational changes in central steering mechanisms (political, normative and financial steering) and the introduction of budget transparency and performance management in two cases: census data (Population Register Centre) and foreign political information (Ministry for Foreign Affairs). The new policy domain of governance indices is also explored as a type of transparency. The study further asks what institutional transformations are to be observed in the above cases and in the accountability system. The study concludes that while the information rights of citizens have been reinforced and recalibrated during the period under scrutiny, there has also been a conversion of institutional practices towards economic performance. As the discourse of Nordic openness has been rather unquestioned, the new internationally circulating ideas of transparency and the knowledge economy have entered this discourse without public notice. Since the mid 1990s, state registry data has been perceived as an exploitable economic resource in Finland and in the EU public sector information. This is a parallel development to the new drive for budget transparency in organisations as vital to the state as the Population Register Centre, which has led to marketization of census data in Finland, an international exceptionality. In the Finnish Ministry for Foreign Affairs, the post-Cold War rhetorical shift from secrecy to performance-driven openness marked a conversion in institutional practices that now see information services with high regards. But this has not necessarily led to the increased publicity of foreign political information. In this context, openness is also defined as sharing information with select actors, as a trust based non-public activity, deemed necessary amid the global economic competition. Regarding accountability system, deliberation and performance now overlap, making it increasingly difficult to identify to whom and for what the public administration is accountable. These evolving institutional practices are characterised by unintended consequences and paradoxes. History is a paradoxical component in the above institutional change, as long-term institutional developments now justify short-term reforms.

Beyond Words : The European Court of Justice and Legal Certainty in Multilingual EU Law

This study addresses the issue of multilingualism in EU law. More specifically, it explores the implications of multilingualism for conceptualising legal certainty, a central principle of law both in domestic and EU legal systems. The main question addressed is how multilingualism and legal certainty may be reconciled in the EU legal system. The study begins with a discussion on the role of translation in drafting EU legislation and its implications for interpreting EU law at the European Court of Justice (ECJ). Uncertainty regarding the meaning of multilingual EU law and the interrelationship between multilingualism and ECJ methods of interpretation are explored. This analysis leads to questioning the importance of linguistic-semantic methods of interpretation, especially the role of comparing language versions for clarifying meaning and the ordinary meaning thesis, and to placing emphasis on other, especially the teleological, purpose-oriented method of interpretation. As regards the principle of legal certainty, the starting-point is a two-dimensional concept consisting of both formal and substantive elements; of predictability and acceptability. Formal legal certainty implies that laws and adjudication, in particular, must be predictable. Substantive legal certainty is related to rational acceptability of judicial decision-making placing emphasis on its acceptability to the legal community in question. Contrary to predictability that one might intuitively relate to linguistic-semantic methods of interpretation, the study suggests a new conception of legal certainty where purpose, telos, and other dynamic methods of interpretation are of particular significance for meaning construction in multilingual EU law. Accordingly, the importance of purposive, teleological interpretation as the standard doctrine of interpretation in a multilingual legal system is highlighted. The focus on rational, substantive acceptability results in emphasising discourse among legal actors among the EU legal community and stressing the need to give reasons in favour of proposed meaning in accordance with dynamic methods of interpretation including considerations related to purposes, aims, objectives and consequences. In this context, the role of ideal discourse situations and communicative action taking the form of interaction among the EU legal community in an ongoing dialogue especially in the preliminary ruling procedure is brought into focus. In order for this dialogue to function, it requires that the ECJ gives persuasive, convincing and acceptable reasons in justifying its decisions. This necessitates transparency, sincerity, and dialogue with the relevant audience.