Siviilioikeuden hiipivä eurooppalaistuminen ja Suomen oikeuslähdeoppi

The article discusses the feasibility of the traditional Finnish doctrine of sources
of law in the light of the creeping Europeanisation of private law. The focus
is on horizontal, cross-border development of legal reasoning in doctrine and
case-law, by using sources from other EU Member States. The use of the Draft
Common Frame of Reference (DCFR) in national settings is discussed as an
example. The many ways in which the Finnish and Swedish Supreme Courts
have referred to the DCFR illustrate the difficulty in discussing the issue in the
framework of the traditional doctrine of sources of law. The challenges lie in
its relatively formal nature: It presents sources of law in a schematic form that
leads to on/off-types of question, and it conveys the impression of a closed and
hierarchical system of sources. Obviously, a new type of source like the DCFR,
which appears to contain both substantive and authoritative elements, does not
fit in very well in such a formal doctrine. To understand its present use and its
possibilities one must ask more analytical questions than the traditional binary
one, were the DCFR to be considered a source of law or not. At least four groups
of question to be addressed are identified in the article. Firstly, one should require open reasoning concerning why the DCFR, or comparative materials in
general, are included in the legal reasoning at hand; several alternative answers
are possible. Secondly, one has to address the role and strength of the DCFR as
an argument in comparison with other sources and thirdly, one has to look at
the nature of the argument in the balance between substantive and authoritative
reasons. Finally, it is important to discuss the choice of the DCFR as compared
to other sets of principles as well as direct comparative materials. Of course, the
use of an extensive web of questions is primarily a task for legal doctrine