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.

Disabled Revolutionary War Veterans and the Construction of Disability in the Early United States, c. 1776-1840

This thesis addresses the following broad research question: what did it mean to be a disabled Revolutionary War veteran in the early United States during the period from 1776 to roughly 1840? The study approaches the question from two angles: a state-centred one and an experiential one. In both cases, the theoretical framework employed comes from disability studies. Consequently, disability is regarded as a sociocultural phenomenon rather than a medical condition. The state-centred dimension of the study explores the meaning of disability and disabled veterans to the early American state through an examination of the major military pension laws of the period. An analysis of this legislation, particularly the invalid pension acts of 1793 and 1806, indicates that the early United States represents a key period in the development of the modern disability category. The experiential approach, in contrast, shifts the focus of attention away from the state towards the lived experiences of disabled veterans. It seeks to address the issue of whether or not the disabilities of disabled veterans had any significant material impact on their everyday lives. It does this through a comparison of the situation of 153 disabled veterans with that of an equivalent number of nondisabled veterans. The former group received invalid pensions while the latter did not. In comparing the material conditions of disabled and nondisabled veterans, a wide range of primary sources from military records to memoirs and letters are used. The most important sources in this regard are the pension application papers submitted by veterans in the early nineteenth century. These provide us with a unique insight into the everyday lives of veterans. Looking at the issue of experience through the window of the pension files reveals that there was not much difference in the broad contours of disabled and nondisabled veteran life. This finding has implications for the theorisation of disability that are highlighted and discussed in the thesis. The main themes covered in this study are: the wartime experiences of injured American soldiers, the military pension establishment of the early United States and the legal construction of disability, and the post-war working and family lives of disabled veterans. Keywords: disability, early America, veterans, military pensions, disabled people, Revolutionary War, United States, disability theory.

Rikollisia sattumalta? : Naisten keskinäistä haureutta koskevat oikeudenkäynnit 1950-luvun Itä-Suomessa

The main focus of the research is on the genealogy of women's same-sex fornication in Finnish criminal law from 1889/1894 to 1971. Why were women included in the concept of same-sex fornication in Finland and why, where, and when was the law put into effect? Which women were tried, how did the trial proceedings evolve, and what kind of effects did the trials have afterwards? Which concepts were used? These questions have been approached through the analysis of the Finnish Penal Code, the criminal law science and four trial proceedings in Eastern Finland during the 1950s. The research draws on the epistemology of the closet and the concept of heteronormativity adapted from queer theories. It is method critical in utilising ethnography, micro history and feminist ethical self-reflection. The research consists of six scientific refereed articles (see appendix) and of a theoretical introduction. The main results of the research are: 1) The genealogy of Finnish decency [Sittlichkeit] can not be researched without oral histories, due to the late modernisation of Finnish society and the legal system, which does not follow the pattern of English, French and German societies. 2) The inclusion of women's same-sex fornication in the Finnish Penal Code is not incomprehensible when compared to the early modern European legislations and court practices. Women have been punished for the sins of Sodom, though not directly under the 1734 Swedish law. 3) Fornication and decency were ambivalent concepts in the 1889/1894 law, and juridical authorities offered controversial interpretations of them during the late 19th and early 20th centuries. 4) A peak in women's convictions occurred in the 1950s, and most of the trial proceedings took place in rural Eastern Finland. Neither the state nor the police were active in prosecuting; instead, the trial proceedings began "by accident". 5) From 1940 to 1960 police training lacked instructions concerning the interrogation of women suspected of same-sex fornication. 6) The figure of the penitent woman was produced in the chiasmic encounter of confession and police interrogation which moulded and was moulded by the epistemological matrix of shame, honour, and decency. Women's speech acts were judicialised as confessions which enabled the disciplinary tampering with the women's bodies. 7) Gender and personality, more than sexuality, or "criminality" defined the status of the convicted women in their village communities after the trials. 8) Relations between police training, sexuality, and decency have not been well researched in Finland. 9) Decriminalisation in 1971 did not mark the end of homophobic legal discourse, even though the 1999 reform of sexual crimes took the form of gender neutral conceptualisation

Tekstit viraston työssä : Tutkimus etuuspäätösten kielestä ja konteksteista

Texts in the work of a city department: A study of the language and context of benefit decisions This dissertation examines documents granting or denying the access to municipal services. The data consist of decisions on transport services made by the Social Services Department of the City of Helsinki. The circumstances surrounding official texts and their language and production are studied through textual analysis and interviews. The dissertation describes the textual features of the above decisions, and seeks to explain such features. Also explored are the topics and methods of genre studies, especially the relationship between text and context. Although the approach is linguistic, the dissertation also touches on research in social work and administrative decision making, and contributes to more general discussion on the language and duties of public administration. My key premise is that a text is more than a mere psycholinguistic phenomenon. Rather, a text is also a physical object and the result of certain production processes. This dissertation thus not only describes genre-specific features, but also sheds light on the work that generates the texts examined. Textual analysis and analyses of discursive practices are linked through an analysis of intertextuality: written decisions are compared with other application documents, such as expert statements and the applications themselves. The study shows that decisions are texts governed by strict rules and written with modest resources. Textwork is organised as hierarchical mass production. The officials who write decisions rely on standard phrases extracted from a computer system. This allows them to produce texts of uniform quality which have been approved by the department s legal experts. Using a computer system in text production does not, however, serve all the needs of the writers. This leads to many problems in the texts themselves. Intertextual analysis indicates that medical argumentation weighs most heavily in an application process, although a social appraisal should be carried out when deciding on applications for transport services. The texts reflect a hierarchy in which a physician ranks above the applicant, and the department s own expert physician ranks above the applicant s physician. My analysis also highlights good, but less obvious practices. The social workers and secretaries who write decisions must balance conflicting demands. They use delicate linguistic means to adjust the standard phrases to suit individual cases, and employ subtle strategies of politeness. The dissertation suggests that the customer contact staff who write official texts should be allowed to make better use of their professional competence. A more general concern is that legislation and new management strategies require more and more documentation. Yet, textwork is only rarely taken into account in the allocation of resources. Keywords: (Critical) text analysis, genre analysis, administration, social work, administrative language, texts, genres, context, intertextuality, discursive practices

Lagöversättning som process och produkt : Revideringar och institutioner vid lagöversättning till svenska i Finland

The thesis studies the translation process for the laws of Finland as they are translated from Finnish into Swedish. The focus is on revision practices, norms and workplace procedures. The translation process studied covers three institutions and four revisions. In three separate studies the translation process is analyzed from the perspective of the translations, the institutions and the actors. The general theoretical framework is Descriptive Translation Studies. For the analysis of revisions made in versions of the Swedish translation of Finnish laws, a model is developed covering five grammatical categories (textual revisions, syntactic revisions, lexical revisions, morphological revisions and content revisions) and four norms (legal adequacy, correct translation, correct language and readability). A separate questionnaire-based study was carried out with translators and revisers at the three institutions. The results show that the number of revisions does not decrease during the translation process, and no division of labour can be seen at the different stages. This is somewhat surprising if the revision process is regarded as one of quality control. Instead, all revisers make revisions on every level of the text. Further, the revisions do not necessarily imply errors in the translations but are often the result of revisers following different norms for legal translation. The informal structure of the institutions and its impact on communication, visibility and workplace practices was studied from the perspective of organization theory. The results show weaknesses in the communicative situation, which affect the co-operation both between institutions and individuals. Individual attitudes towards norms and their relative authority also vary, in the sense that revisers largely prioritize legal adequacy whereas translators give linguistic norms a higher value. Further, multi-professional teamwork in the institutions studied shows a kind of teamwork based on individuals and institutions doing specific tasks with only little contact with others. This shows that the established definitions of teamwork, with people co-working in close contact with each other, cannot directly be applied to the workplace procedures in the translation process studied. Three new concepts are introduced: flerstegsrevidering (multi-stage revision), revideringskedja (revision chain) and normsyn (norm attitude). The study seeks to make a contribution to our knowledge of legal translation, translation processes, institutional translation, revision practices and translation norms for legal translation. Keywords: legal translation, translation of laws, institutional translation, revision, revision practices, norms, teamwork, organizational informal structure, translation process, translation sociology, multilingual.

Concepts and Object-Oriented Knowledge Representation

Tutkielma käsittelee nykyisiä kognitiotieteen teorioita käsitteistä ja niiden mallintamista oliokeskeisillä tietämyksen esittämisen menetelmillä. Käsiteteorioista käsitellään klassinen, määritelmäteoria, prototyyppiteoria, duaaliteoriat, uusklassinen teoria, teoria-teoria ja atomistinen teoria. Oliokeskeiset menetelmät ovat viime aikoina jakautuneet kahden tyyppisiin kieliin: oliopohjaisiin ja luokkapohjaisiin. Uudet olio-pohjaiset olio-ohjelmointikielet antavat käsitteiden representointiin mahdollisuuksia, jotka puuttuvat aikaisemmista luokka-pohjaisista kielistä ja myös kehysmenetelmistä. Tutkielma osoittaa, että oliopohjaisten kielten uudet piirteet tarjoavat keinoja, joilla käsitteitä voidaan esittää symbolisessa muodossa paremmin kuin perinteisillä menetelmillä. Niillä pystytään simuloimaan kaikkea mitä luokkapohjaisilla kielillä voidaan, mutta ne pystyvät lisäksi simuloimaan perheyhtäläisyyskäsitteitä ja mahdollistavat olioiden dynaamisen muuttamisen ilman, että siinä rikotaan psykologisen essentialismin periaatetta. Tutkielma osoittaa lisäksi vakavia puutteitta, jotka koskevat koko oliokeskeistä menetelmää. Avainsanat: käsitteet, käsiteteoriat, tekoäly, komputationaalinen psykologia, olio-ohjelmointi, tiedon esittäminen

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.

Sulkeuman ja neuvottelun ehdoilla : asiantuntija-aseman rakentuminen työelämässä

Closure and negotiation constructing professional position in working life The aim of the thesis is to analyse how professional positions are constructed in working life. A professional position refers to a formal professional membership, but also to a position at a work site. Formal jurisdiction provides resources for supporting a position, but the relations, practices and processes at the work site strongly shape it as well. Professional membership includes two gates: obtaining a professional diploma and access to a professional post. The concept of a professional position is based on two sub-concepts: legitimation and authority. Legitimation is society-level jurisdiction over professioning. Legitimation can be claimed in legislation, in the public space and the media, and at the work site. Authority requires constructing professional work territories and practicing authority in work-related decision making processes. The thesis is based on five articles which deal with the following topics: gendered professional careers; organising professional work; the impact of the social and cultural backgrounds when striving for professional positions; and models of research work. The articles represent two types of sociological research: the structural approach with quantitative methodology and the approach of micro-social analysis with qualitative methodology. The first approach was suitable for analyzing professional career formation and its social and ethnic conditions. The second approach has been applied in the articles dealing with the organization of professional work and models of research work. I have combined and analysed the results of these studies under the theoretical frame of the professional position in working life. Legislation is the most powerful form of legitimation. Professional membership is strongly regulated in disciplines where a degree requirement is defined by law. In addition, closures related to social conditions still affect professional positions, but their character is loose and changing. The closures related to social conditions are based on many mutually overlapping principles: social, cultural and ethnic backgrounds and gender. Despite the closures, professional experts have to negotiate their positions, particularly when the situation in the work sites and society changes. Professional authority is reinforced at the organizational level by legislation; when the institutional status of a public sector professional organization is defined by law, it reinforces the professional position of the employees. In the business line of new media, the employees need to negotiate with the management, other professional groups and clients when striving for reinforce their professional position.

The EU and Institutional Twinning in Morocco - An inquiry into the motives of cooperation through discourse ethics

This study examines Institutional Twinning in Morocco as a case of EU cooperation through the pragmatic, ethical and moral logics of reason in Jürgen Habermas’s discourse ethics. As a former accession tool, Twinning was introduced in 2004 for legal approximation in the context of the European Neighborhood Policy. Twinning is a unique instrument in development cooperation from a legal perspective. With its long historical and cultural ties to Europe, Morocco presents an interesting case study of this new form of cooperation. We will analyse motives behind the Twinning projects on illegal immigration, environment legislation and customs reform. As Twinning is a new policy instrument within the ENP context, there is relatively little preceding research, which, in itself, constitutes a reason to inquire into the subject. While introducing useful categories, the approaches discussing “normative power Europe” do not offer methodological tools precise enough to analyse the motives of the Twinning cooperation from a broad ethical standpoint. Helene Sjursen as well as Esther Barbé and Elisabeth Johansson-Nogués have elaborated on Jürgen Habermas’ discourse ethics in determining the extent of altruism in the ENP in general. Situating the analysis in the process-oriented framework of Critical Theory, discourse ethics provides the methodological framework for our research. The case studies reveal that the context in which they operate affects the pragmatic, ethical and moral aspirations of the actors. The utilitarian notion of profit maximization is quite pronounced both in terms of the number of Twinning projects in the economic sphere and the pragmatic logics of reason instrumental to security and trade-related issues. The historical background as well internal processes, however, contribute to defining areas of mutual interest to the actors as well as the motives Morocco and the EU sometimes described as the external projection of internal values. Through its different aspects, Twinning cooperation portrays the functioning of the pragmatic, ethical and moral logics of reason in international relations.

Onko eläimillä oikeuksia? : Eläinkoelainsäädännön kehitys ja nykytila

The use of animals in scientific experiments tends to arouse strong emotional reactions among the general public, the most essential concern being the pain and suffering they cause. It is felt that suffering inflicted on other beings, including animals, is not morally acceptable. Is the function of a researcher who uses animals morally acceptable and beneficial for humans and animals? May such a researcher him/herself decide what animal experiments he/she can perform or should some outsider have the right to decide what kind of experiments a researcher can or cannot perform? The research material comprises the legislation of Finland and that of some member and non-member states of the European Union, together with European Union directives and pertinent preparatory parliamentary documents. The author has likewise studied the vast literature on animal rights, both pro and contra writings and opinions. The opinions of philosophers on the moral and legal rights of animals are markedly conflicting. Some strongly support the existence of rights, while others totally refute such an opinion, claiming that the question is only of the moral principles of man himself which imply that animals must be treated in a human manner. Speaking of animal rights only tends to muddle ideas on the one hand in philosophical considerations and in legal analyses on the other. The development of legislation in Finland and some other member states of the European Union has in principle been similar. In Finland, the positive laws on animal experiments nowadays comply with the EU directive 86/609/EEC. However, there are marked differences between member states in respect of the way they have in practice implemented the principles of the EU directive. No essential alterations have in practice been discernible in the actual performance of animal experiments during the decades when legislation has been developed in different countries. Self-regulation within the scientific community has been markedly more effectual than legislative procedures. Legal regulation has nevertheless clearly influenced the quality of breeding and life conditions of experimental laboratory animals, cages for example being nowadays larger than hitherto. EU parliament and council have now accepted in September 2010 a new directive on animal experiments which must be implemented in the national legislations by January 1, 2013.

Network Knowledge versus Cluster Knowledge- The Gordian Knot of Knowledge Transfer Concepts

Both management scholars and economic geographers have studied knowledge and argued that the ability to transfer knowledge is critical to competitive success. Networks and other forms for cooperation are often the context when analyzing knowledge transfer within management research, while economic geographers focus on the role of the cluster for knowledge transfer and creation. With the common interest in knowledge transfer, few attempts to interdisciplinary research have been made. The aim of this paper is to outline the knowledge transfer concepts in the two strands of literature of management and economic geography (EG). The paper takes an analytical approach to review the existing contributions and seek to identify the benefits of further interaction between the disciplines. Furthermore, it offers an interpretation of the concepts of cluster and network, and suggests a clearer distinction between their respective definitions. The paper posits that studies of internal networks transcending national borders and clusters are not necessarily mutually exclusive when it comes to transfer of knowledge and the learning process of the firm. Our conclusion is that researchers in general seem to increasingly acknowledge the importance of studying both the effect of and the need for geographical proximity and external networks for the knowledge transfer process, but that there exists equivocalness in defining clusters and networks.

Networks, Organisations and Men: Concepts and Interrelations

Research on men’s networks and homosociality in and around organisations can produce knowledge on organisational power relations, and contribute to the efforts to promote equality in working life. The search for a conceptual framework to study these issues arises in this paper from my ongoing work on men's social networks and gendered power in and around organisations. Men give each other social support through networks in which formal and informal relationships intermingle, but networks are also contexts of competition and oppression, and of construction of masculinities that are in hierarchical relations with each other and with femininities. For studying the networks men have with each other in work organisations I suggest a broader starting point that contextualises these homosocial networks with men’s other personal relations, and integrates different perspectives deriving from social network analysis, critical studies on men and organisational studies.

Interpretation of Services Marketing Concepts

Scholarly research has produced conceptual knowledge that is based on real-life marketing phenomena. An initial aim of past research has been to produce marketing knowledge as a base for efficient business operation and for the improvement of productivity. Thus, an assumption has been that the knowledge would be applied by organisations. This study focuses on understanding the use of marketing knowledge within the field of service marketing. Hence, even if marketing knowledge about service-oriented principles and marketing of services is based on empirical research, there is a lack of knowledge on how this marketing knowledge is in fact applied by businesses. The study focuses on four essential concepts of services marketing knowledge, namely service quality, servicescape, internal marketing, and augmented service offering. The research involves four case companies. Data is based on in depth interviews and questionnaire-based surveys conducted with managers, employees, and customers of these companies. All organisations were currently developing in a service-oriented and customer-oriented direction. However, we found limitations, gaps, and barriers for the implementation of service-oriented and customer-oriented principles. Hence, we argue that the organisations involved in the study exploited conceptual knowledge symbolically and conceptually, but the instrumental use of knowledge was limited. Due to the shortcomings found, we also argue that the implementation of the various practices and processes that are related to becoming service-oriented and customer-oriented has not been fully successful. Further, we have come to the conclusion that the shortcomings detected were at least in some respect related to the fact that the understanding and utilisation of conceptual knowledge of service-oriented principles and marketing of services were somewhat limited.