Muukalaisia ja muita ihmisiä

Aliens and other people

Fundamental and human rights have had a considerable impact on Finnish jurisprudence. Interestingly, the tendency towards rights-based constitutionalism has clear linkages to the internationalisation of Finnish jurisprudence. There are obviously divergent opinions on the consequences of this development. The most critical voices have been raised by those who believe that the domination of fundamental and human rights discourse may endanger the basic tenets of well-established legal disciplines. This article analyses the credibility of this concern in the light of recent case-law of the Supreme Administrative Court. The focus of the analysis is on judgments concerning aliens. Alien law is chosen as an example due to three reasons. First, it is strongly influenced by international treaties and EU law. Second, treatment of aliens also involves significant national interests. Third, the treatment of aliens is sensitive to important fundamental and human rights issues. According to the analysis, concerns about the domination of fundamental and human rights are overstated. The Supreme Administrative Court treats alien issues first and foremost as alien issues. As far as legal argumentation is concerned, the Court’s approach is rather cautious. The focus is on the traditional understanding of sources of law. It is nevertheless not fair to argue that the Court is not trying to take aliens’ rights seriously. But as long as the legislator and the international community treat aliens as a special category, the Court’s room for manoeuvre is fairly restricted.