The Ambivalence of Reforms and their Absence: Baltic Lections of the 19th Century

• Author: Marju Luts
• Position: Professor of Legal History, University of Tartu
• Pages: 68-75

Marju Luts

Professor of Legal History, University of Tartu

The Ambivalence of Reforms and their Absence: Baltic Lections of the 19th Century

1. Introduction

Post-reindependence Estonia has been known as the most reform-inclined country in at least Eastern, if not all of, Europe. Be it the rapid restructuring of the Soviet-style planned economy in the spirit of economic liberalism, unharnessing of private law from the Soviet étatisme and its reconstitution upon the foundation of private autonomy, introduction of a penal code grounded on the rule-of-law principles, adaption of the legal system to the EU accession requirements, fundamental reorganisation of the higher education system according to the so-called Bologna model, or something else - decisions to reform are made swiftly and without having long discussions. Thus it is no wonder that locals joke that in the Estonian (legal) culture, only one thing is traditionally constant: the tradition of disruptions.

This statement seems to be supported by the 20 ^th century's changeful political and legal history, spent in a field of tension between various foreign rules and independence. In the beginning of the century, the territories of present Estonia and Latvia constituted as divided into autonomous Baltic provinces - Estland (Estonia), Livland (Livonia) and Kurland (Courland) - still a part of the Russian Empire. The autonomy of the provinces had been strongly contested by the great judicial reform of 1889 ¹ ; however, the class-based constitution was retained up to the First World War, and the local administration remained the "knighthoods' self-government". From the disintegration of empires in World War I, the present day Baltic States emerged as democratic republican nation states, whose one of the first commitments was to abolish social ranks by means of respective laws. The authoritarian tendencies in Europe during the 1930s had their effect also on the constitutions and law of the Baltic States. The Soviet occupation of 1940 brought with itself something unprecedented: the abolishment of the entire applicable legal order and its replacement with the laws of the Russian Socialist Soviet Federative Republic. During the Nazi-German occupation, all of Soviet law was, in turn, entirely abolished and the law of the nation states restored - however, with the reservation of supremacy for German martial law. The second Soviet occupation and annexation in 1944-1945 brought back the Soviet law which remained applicable up to the collapse of the Soviet Union in 1991. Thereafter have the Baltic States gone through a large number of reforms on their own initiative as well as in the name of accession into the EU.

Against the background of such mobility, the earlier history, although not without changes in power ² , seems almost like a constitutional and legal stagnation. Post-World War I Republic of Estonia inherited from the Russian Empire's Estonian and Livoniangovernoratesa medieval legal particularism, of which, for example in private law, it still had not managed to free itself by 1940³. The roots of the aforementioned self-government of the knighthoods went back to the Medieval Ages and it retained its early-modern-era-structure, as well as its ruling position in the local class society up to World War I. The so-called Long Middle Ages ⁴ , usually considered to have ended approximately in the middle of the 19 ^th century, continued in the local constitution up to the beginning of the 20 ^th century. In law, the influence lasted even longer, partly extending up to the current era of reforms.

On the other hand, it can hardly be said that the European 'saddle era' ⁵ ventured past the Baltic provinces of the Russian Empire without leaving a trace. In Tartu (then called Dorpat), a German-language university was active from 1802 onwards. The university saw as its important mission the task of communicating European scientific culture to the Russian empire⁶. Although the abolishment of serfdom happened gradually, it still became true decades earlier than in the so-called Inner Russia⁷. Unlike in Russia, the Baltic agrarian reforms became a foundation for the development of small land ownership⁸. About in the middle of the 19 ^th century started certain processes which give a testimony of the intrinsic modernisation of the society: the beginnings of an organisation movement based on voluntary associations, gradual urbanisation, development of the Estonians' and Latvians' national identity, the evolution of both the Baltic-German and Estonian newspapers into a medium of the modern public sphere, the beginnings of industrialisation in both towns and the countryside, etc. All those processes have also been looked into in both Estonian and Baltic-German history writing⁹. However, very little attention has been paid to important reform discussions that directly concerned the constitution and law of the provinces: namely, the attempt in 1860s made to reform the Baltic provinces' judicial order and procedural law. The aim of this article is to compensate a bit for this lack of attention (Section 2). Even though it is not yet based on the results of an extensive study, it is nonetheless already possible to correct the picture brought forward in previous studies of the legal policy and jurisprudence of the Baltic provinces in the second half of the 19 ^th century. As the local modernisation attempts were unexpectedly resisted by the unifying modernisation policy of the Russian Empire, its consequences will also be analysed (Section 3).

2. Modernisation 'from below'

2.1. The judicial reform attempt in 1860s: a project of progressive intellectuals?

In Baltic-German history writing, the modernisation-readiness of the 2 ^nd half of the 19 ^th century has often been associated with intellectuals. Gert von Pistohlkors argues that especially in the towns and especially on the initiative of the academic circle, a 'liberally-minded public' was formed, and - as never before in Baltic history - 'upheld by the political press'¹⁰. The flagship of the progressive circles, and their most lasting achievement in that context, is without doubt the magazine Baltische Monatsschrift, which was first published in 1859 and reached its last annual volume, i.e. Volume No. 62, in 1931.

The discussion around reforms concerning local procedural law and courts administration, that we are concerned with now, was given a decisive push by the plans for judicial reform in the Russian Empire. In 1862, the main principles of the reform were approved by the Governing Senate and published in the Baltic Sea provinces in German translation¹¹. This became the kick-off for a lively discussion on the shortcomings of the existing law and commencement to an avalanche of reform proposals. E. Winkelmann's bibliography compilation contains 51 entries on articles and published drafts from 1862 to 1873 in the section dedicated to the judicial reform in the Baltic provinces¹².

That this discussion was not merely academic is apparent already from the fact that from the beginning of the 1860s onward, the knighthoods of all three provinces had all been working on procedural law. Even there, something completely new happened. In the years 1864-1865, a Common Central Judicial Committee of the Baltic Sea Governorates (Zentraljustizkommission in German) was carrying out its activities in Tartu¹³. The novel aspect of this board was, first of all, the fact that it included representatives from the knighthoods of all three provinces as well as representatives from the towns and the university. However, its objective was even more innovative: to prepare drafts for courts administration order and procedural law that, while shared by all three provinces would lie the foundation for a common court procedure. No earlier codification ¹⁴ had attempted to harmonise the laws of the Baltic Sea provinces. Neither had it as its aim the codification of local private law, concurrently in preparation, approved by the emperor in 1864 and came into force in 1865¹⁵.

It is obvious that in order to harmonise the procedural law of the three provinces, the discrepancies in existing laws had to be eliminated. This is the point in which the reform discussions of the 1860s showed their nature as that of a true modernisation discussion. In newspapers and scholarly works, as well as in draft laws, changes to the existing (procedural) law were proposed. This was a completely new attitude in the legal policy of the Baltic provinces, where, until then, the exercise of the provinces' authonomy was often seen in the maintenance of the existing law. The procedural-law drafts of the 1860s, based on the principles of hearing and publicity, spoke the language of modern law and demonstrated a readiness for modernisation.

A new procedural law would also have required a new system of courts administration. This topic was also a subject of heated discussion. In previous studies, it has been emphatically stressed that the draft of the Central Judicial Committee still did not emerge from the idea of a radical modernisation of the class-based judicial system but maintained a more conservative position¹⁶. Baltic-German history writing has attributed this fact to the inertia and durability of the class-based way of thinking¹⁷. In that respect, Gert von Pistohlkors has provided a quite thorough synopsis of the conservative views of the magistrate of Estonia, Baron Robert von Toll (1802-1876), regarding the defence of the existing judicial and...