The International Journal
of Not-for-Profit Law
Volume 14, Issue 1-2, April 2012
Matti Muukkonen1
It has been written that freedom of association can be seen as one of the most fundamental principles of the democratic society. 2 This derives from the fact that when a person’s life expectancy and resources are limited, unification is the only way to achieve aims in larger matters.3 The function of freedom of association is to safeguard the right to unite.4 It provides people the means to share their thoughts and views with others and work together to achieve common aims. Like its sisters, freedom of speech and freedom of assembly, freedom of association is an instrument of expression of ideas.5
Freedom of association has been guaranteed in human rights treaties and in the majority of the national constitutions. Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms6 provides: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.” It further stipulates: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.”
As experts such as Martin Scheinin commonly say, international law exerts influence especially through national charters.7 In the vast majority of national legal systems, especially those representing the dualistic type, freedom of association has been put into force through the constitution.8 This is true in the case of Finland as well, where freedom of association is secured through provision 13 of the Finnish Constitution: “Everyone has the freedom of association. Freedom of association entails the right to form an association without a permit, to be a member or not to be a member of an association and to participate in the activities of an association. The freedom to form trade unions and to organise in order to look after other interests is likewise guaranteed.”9
The constitutional freedom of association attained its present form during the civil rights reform of the Finnish Constitution. This was one of two major constitutional changes that took place in Finland in the 1990s; it took effect in 2000. For this reason, it is fair to say that the Finnish legal system experienced a major meta-level change at the turn of the millennium. In this new constitutional era, the constitution is seen as a basis for guiding the development of the society and the legal system as a whole, which in turn has meant that the impact of the constitution is now larger than ever before.10
Finnish jurisprudence, particularly Juha Karhu (formerly Pöyhönen)11 and Pekka Länsineva12, have maintained the idea that the new doctrine of basic rights should also provide the basis for the systematization of Finnish private law. They argue that property law requires a system of fundamental rights to secure the proper justification for interpretation and systematization. This, in turn, has an impact on the system of justice. On the other hand, the root cause for the new scheme is the fact that the traditional way of structuring legal relationships is no longer relevant, because legal relationships have grown so much more diverse. Therefore it is necessary that contextual thinking and legal concepts are linked to reality in a more formal manner.
Examples from property law have led to the question of whether the system of Association Law should be seen in a new way. Although the roots of the law are in the fundamental rights tradition, the Association Law has not been parsed by this tradition in recent decades. Instead, it has been seen from the general doctrines of contract law. This has given rise to the idea of a basic rights-based system of Association Law. In this thinking, the Association Law standards are derived from the Charter of Fundamental Rights, and the system takes into account the objectives that the judicial system has set.
The Origins of Freedom of Association
Before the new Constitution of Finland, freedom of association was based on clause 10 of the form of government provision in the former Constitution from 1919. The same formulation can be found in the constitutional-level Act of Freedom of Speech, Assembly and Association given before independence in 1906. Although that act was based on a manifesto from the Russian emperor, who was also the sovereign of Finland in those days, the idea stemmed from a national discussion based on international examples. Since Finland had just experienced significant pressure from the Russian government, demand for political freedoms was self-evident. In fact, the emperor’s declaration was written by a Finnish member of parliament,13 Leo Mechelin, who later also led the Senate which prepared the constitutional reform. Together with K.J. Ståhlberg, the other major Finnish legal scientist, senator, and the first president of future independent Finland, he formulated the basis for the rights of freedom of the Finns.
The idea of freedom of association was not Mechelin’s and Ståhlberg’s own, of course. Both were familiar with the discussions abroad, and role models are easy to track both to the German tradition and to the 1831 Constitution of Belgium.14 On the other hand the importance of the labor movement is evident, because a desire for freedom of association was also evident in the Erfurt program’s (1891) Finnish application, the program of Forssa (1903).15
But by the same token, Ståhlberg’s knowledge of the works of John Stuart Mill, especially “On Liberty,” cannot be ruled out while tracking how the original ideas reached the Finnish system.16 Mill presents a systematization of individual freedom through three categories. According to Mill, individual freedom can be divided into freedom of thought and speech, freedom of personal life, and to freedom to unite.17 This classification is similar to that of the U.S. Supreme Court in Roberts v. Jaycees, which outlined the idea of expressive, intimate, and commercial associations.18
All of these seem to have different goals and logic of action. It may be that the ways in which some societies have dealt with associations in courts are not ideal. The functional analysis adopted in the Chassagnou and Others case and its successors,19 might be the key to further development. Various forms of association activity seem to fall within different contexts.
The Concept of Freedom of Association
How, then, shall we understand freedom of association? I have been disturbed by the manner in which some commentators have discussed the elements of freedom of association with little regard for the text of the agreements or formulations of the constitutional regulations.20 However, as Aulis Aarnio says, the provisions in the acts are not necessarily the same as the law. The idea behind the provisions should be central.21 So it would be important to understand that the safeguard of the freedom is almost always wider than what is expressed in the provision itself.
We can see freedom of association as including several distinct rights: (a) the right to establish, (b) the right to belong, and (c) associational autonomy. Of these, the right to belong can further be split into (i) the right to apply, (ii) the right to participate, and (iii) the right to resign. Each of these has both positive and negative dimensions, so it can be said that while one has the right to establish, he or she also has the right not to do so. This follows Georg Henrik von Wright’s norm classification. According to him, norms can be commandments, prohibitions, or permits. Freedom of association falls in the permit category. Seeking membership in an association should be seen as discretionary. In this context it is worth noting that the associational autonomy right does not imply the right for anyone to become a member of an association, or to remain a member, because this would violate the rights of other members.22
Article 11 merits more thorough analysis and delineation than it has received to date. We need not just a set of inferences about the scope of the rights, but rather a general theory to explain the full scope of rights embraced by the concept of freedom of association.
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1 Lic. of Adm. Sc. and M.Soc.Sc. Matti Muukkonen is the Chief Municipal Officer of the Municipality of Suomenniemi. This article summarizes his dissertation “Yhdistymisvapaus ja yhdistysoikeuden järjestelmä” (Freedom of Association and the System of Association Law), written at the University of Eastern Finland, Department of Law.
4 In particular, the freedom of association was developed to protect the individuals against the state abuse of power (Haas 1970 p. vii.), but today, due the horizontal effect of fundamental rights (Drittwirkung-doctrine), the protection also covers other individuals’ misuse of power (see, e.g., Engle 2009 p. 165).
6 See also International Covenant on Civil and Political Rights, articles 21 and 22 and American Convention on Human Rights, article 16.
8 See van Ploeg 2005 pp. 325–352.
9 Finnish Constitution 13(2). See also 13(3): “More detailed provisions on the exercise of the freedom of assembly and the freedom of association are laid down by an Act.”
11 See Pöyhönen’s “Uusi varallisuusoikeus” (A New Property Law, 2000).
12 See Länsineva’s “Perusoikeudet ja varallisuussuhteet” (Basic Rights and Property Relations, 2002).
13 Literally “man of the state days,” referring to those days used for state matters.
15 See also p. 151 and Kautsky 1892. The translator of the Kautsky commentary was J.V. Kari from the social democratic party, who in 1905 was selected as a senator in Mechelin’s Senate.
16 See Muukkonen Oikeus 4/2010 p. 398.
18 Roberts v. United States Jaycees, 268 U.S. 609 (1984).
19 See ECtHR 25088/94, 28331/95 and 28443/95 Chassagnou and others 29.4.1999, ECtHR 43311/98 Köll 4.7.2002, ECtHR O.V.R. v. Russia 3.4.2001 yb 2001 and ECtHR 48047/99, 48961/99, 50786/99 and 50792/99 Popov and others 6.11.2003. Also see ECtHR 6878/75 and 7238 Le Compte, Van Leuven and De Meyere v. Belgium 23.6.1981 and Albert and Le Compte v. Belgium 18.10.1982.
20 See, e.g., Merikoski 1973 p. 24, Halila 1993 p. 244 and Tomuschat 1993 p. 502–503.