Legal Reasoning in Context

This study in EU law analyses the reasoning of the Court of Justice (the Court of Justice of the European Union) in a set of its preliminary rulings. Preliminary rulings are answers to national courts questions on the interpretation (and validity) of EU law called preliminary references. These questions concern specific legal issues that have arisen in legal disputes before the national courts. The Court of Justice alone has the ultimate authority to interpret EU law. The preliminary rulings bind the national courts in the cases giving rise to the preliminary reference, and the interpretations of EU law offered in the preliminary rulings are considered generally binding on all instances applying EU law. EU law is often described as a dynamic legal order and the Court of Justice as at the vanguard of developing it. It is generally assumed that the Court of Justice is striving to realise the EU s meta-level purpose (telos): integration. Against this backdrop one can understand the criticism the Court of Justice is often faced with in certain fields of EU law that can be described as developing. This criticism concerns the Court s (negatively) activist way of not just stating the law but developing or even making law. It is difficult to analyse or prove wrong this accusation as it is not in methodological terms clearly established what constitutes judicial activism, or more exactly where the threshold of negative activism lies. Moreover, one popular approach to assessing the role of the Court of Justice described as integration through law has become fairly political, neglecting to take into consideration the special nature of law as both facilitating and constraining action, not merely a medium for furthering integration. This study offers a legal reasoning approach of a more legalist nature, in order to balance the existing mix of approaches to explaining what the Court of Justice does and how. Reliance on legal reasoning is found to offer a working framework for analysis, whereas the tools for an analysis based on activism are found lacking. The legal reasoning approach enables one to assess whether or not the Court of Justice is pertaining to its own established criteria of interpretation of EU law, and if it is not, one should look more in detail at how the interpretation fits with earlier case-law and doctrines of EU law. This study examines the reasoning of the Court of Justice in a set of objectively chosen cases. The emphasis of the study is on analysing how the Court of Justice applies the established criteria of interpretation it has assumed for itself. Moreover, the judgments are assessed not only in terms of reasoning but also for meaningful silences they contain. The analysis is furthermore contextualised by taking into consideration how the cases were commented by legal scholars, their substantive EU law context, and also their larger politico-historical context. In this study, the analysis largely shows that the Court of Justice is interpreting EU law in accordance with its previous practice. Its reasoning retains connection with the linguistic or semiotic criteria of interpretation, while emphasis lies on systemic reasoning. Moreover, although there are a few judgments where the Court of Justice offers clearly dynamic reasoning or what can be considered as substantive reasoning stemming from, for example, common sense or reasonableness, such reasons are most often given in addition to systemic ones. In this sense and even when considered in its broader context, the case-law analysed in this study does not portray a specifically activist image of the Court of Justice. The legal reasoning approach is a valid alternative for explaining how and why the Court of Justice interprets EU law as it does.

Pitfalls in the Treatment of Persons with Dementia

Pitfalls in the treatment of persons with dementia Persons with dementia require high-quality health care, rehabilitation and sufficient social services to support their autonomy and to postpone permanent institutionalization. This study sought to investigate possible pitfalls in the care of patients with dementia: hip fracture rehabilitation, use of inappropriate or antipsychotic medication, social and medicolegal services offered to dementia caregiving families. Three different Finnish samples were used from years 1999-2005, mean age 78 to 86 years. After hip fracture operation, the weight-bearing restriction especially in group of patients with dementia, was associated with a longer rehabilitation period (73.5 days vs. 45.5 days, p=0.03) and the inability to learn to walk after six weeks (p<0.001). Almost half (44%) of the pre-surgery home-dwellers with dementia in our sample required permanent hospitalization after hip fracture. Potentially inappropriate medication was used among 36.2% of nursing home and hospital patients. The most common PIDs in Finland were temazepam over 15 mg/day, oxybutynin, and dipyridamole. However, PID use failed to predict mortality or the use of health services. Nearly half (48.4%) of the nursing home and hospital patients with dementia used antipsychotic medication. The two-year mortality did not differ among the users of conventional or atypical antipsychotics or the non-users (45.3% vs.32.1% vs.49.6%, p=0.195). The mean number of hospital admissions was highest among non-users (p=0.029). A high number of medications (HR 1.12, p<0.001) and the use of physical restraints (HR 1.72, p=0.034) predicted higher mortality at two years, while the use of atypical antipsychotics (HR 0.49, p=0.047) showed a protective effect, if any. The services most often offered to caregiving families of persons with Alzheimer s disease (AD) included financial support from the community (36%), technical devices (33%), physiotherapy (32%), and respite care in nursing homes (31%). Those services most often needed included physiotherapy for the spouse with dementia (56%), financial support (50%), house cleaning (41%), and home respite (40%). Only a third of the caregivers were satisfied with these services, and 69% felt unable to influence the range of services offered. The use of legal guardians was quite rare (only 4.3%), while the use of financial powers of attorney was 37.8%. Almost half (47.9%) of the couples expressed an unmet need for discussion with their doctor about medico-legal issues, while only 9.9% stated that their doctor had informed them of such matters. Although we already have many practical methods to develop the medical and social care of persons with AD, these patients and their families require better planning and tailoring of such services. In this way, society could offer these elderly persons better quality of life while economizing on its financial resources. This study was supported by Social Insurance Institution of Finland and part of it made in cooperation with the The Central Union of the Welfare for the Aged, Finland.

An Analysis of the Concept of Citizenship: Legal, Political and Social Dimensions

The thesis aims at analyzing concept of citizenship in political philosophy. The concept of citizenship is a complex one: it does not have a definitive explication, but it nevertheless is a very important category in contemporary world. Citizenship is a powerful ideal, and often the way a person is treated depends on whether he or she has the status of a citizen. Citizenship includes protection of a person’s rights both at home and abroad. It entails legal, political and social dimension: the legal status as a full member of society, the recognition of that status by fellow citizens and acting as a member of society. The thesis discusses these three dimensions. Its objective is to show how all of them, despite being insufficient in some aspects, reach something important about the concept. The main sources of the thesis are Civic Republicanism by Iseult Honohan (Routledge 2002), Republicanism by Philip Pettit (Clarendon Press 1997), and Taking Rights Seriously by Ronald Dworkin (1997). In addition, the historical part of the thesis relies mainly on the works of Aristotle, Immanuel Kant, Adam Smith, Quentin Skinner, James Pocock and James Tully. The writings of Will Kymlicka, John Rawls, Chantal Mouffe, and Shane Phelan are referred to in the presentation and critique of the liberal tradition of thought. Hannah Arendt and Seyla Benhabib’s analysis of Arendt’s philosophy both address the problematic relations between human rights and nation-states as the main guarantors of rights. The chapter on group rights relies on Peter Jones’ account of corporate and collective rights, after which I continue to Seumas Miller’s essay on the (liberal) account of group rights and their relation to the concept of citizenship. Republicanism and Political Theory (2002) edited by Cécile Laborde and John Maynor is also references. David Miller and Maurizio Viroli represent the more “rooted” version of republicanism. The thesis argues that the full concept of citizenship should be seen as containing legal, political and social dimensions. The concept can be viewed from all of these three angles. The first means that citizenship is connected with certain rights, like the right to vote or stand for election, the right to property and so on. In most societies, the law guarantees these rights to every citizen. Then there is also the social dimension, which can be said to be as important as the legal one: the recognition of equality and identities of others. Finally, there is the political dimension, meaning the importance of citizens’ participation in the society, which is discussed in connection with the contemporary account of republicanism. All these issues are discussed from the point of view of groups demanding for group-specific rights and equal recognition. The challenge with these three aspects of citizenship is, however, that they are difficult to discuss under one heading. Different theories or discourses of citizenship each approach the subject from different starting points, which make reconciling them sometimes hard. The fundamental questions theories try to answer may differ radically depending on the theory. Nevertheless, in order to get the whole image of what the citizenship discourses are about all the aspects deserve to be taken into account.