Magister iuris, Lecturer of Legal History, University of Tartu
Social and Economic Fundamental Rights in Estonian Constitutions Between World Wars I and II: A Vanguard or Rearguard of Europe?
The Constitution of 19371, which followed the first Estonian Constitution (of 1920), is the basis for the present Constitution of Estonia. A series of fundamental rights was present in all of the country's constitutions. In human rights theory, fundamental rights are divided into three categories: fundamental rights of the first, second, and third generation. First-generation rights are those that contemporary Estonian lawyer E. Laaman defined as personal (or civil) rights, by which the state is not allowed to restrict the citizen in certain fields, such as the right to liberty and equality or freedom of property. The second-generation rights are social (and economic) rights, by which the citizen has the right to demand from the state a certain action. Examples are the right to work and to education2. This definition is recognised also in both contemporary and later European literature3.
Although the Constitutions of 1920 and 1937 are direct predecessors of the present Constitution, there has been relatively little research done with respect to them and what they contain, especially concerning fundamental rights. As during the interim between the two World Wars there was a relatively strong emphasis on social and economic fundamental rights (SEFR) in Europe4, also at constitutional level, this article is meant to fill this gap and throw light on social and economic human rights in the Constitutions of 1920 and 1937. The social and economic rights covered in this article are understood in a very broad sense, as all human rights are included that influence the social and economic sphere - the right to private property, the right to strike, and so on. As the principle of equality is a very important basis for the application of SEFR, gender equality will be discussed as well. On the other hand, some of the traditional rights of the second generation, such as the right to education and minority and cultural rights5, are omitted from the discussion.
As every legal system is influenced by others, the Estonian Constitutions have to be put in context in order for one to find out what has influenced them, and how.
Two pre-constitution documents in 19186 had already established some SEFR: the right to an adequate standard of living; the right to acquire land for agriculture and exploitation; the right to gain employment and labour protection; and the right to state support for those who are old, young, unable to work, and so on.
Finally, in the Constitution of 1920, these rights were specified and widened, while not being changed in principle. In the drafting of the Constitution, it was first discussed whether fundamental rights should be included in the constitutional text at all, as doing so was not common for that time, let alone before. For example, most constitutions in German states after 1848 did not make mention of the fundamental rights, for they were considered in legal theory to be self-evidently guaranteed. Still, it was found in the Weimar Constitution that, to tie the Constitution with the one from 1848, an extended series of fundamental rights should be established7.
In the case of the Estonian Constitution of 1920, there were also doubts as to whether the Constitution should have a human rights series at all, as it had in Latvia in 1922. But in Estonia there was demand on both counts, from the right wing and the left, so the fundamental rights were enshrined in the Constitution as legal guarantees8.
In the opinion of Laaman, the Estonian Constitution of 1920 was influenced by the French Declaration of the Rights of Man and of the Citizen, by extreme collectivism in Soviet Russia9, and by the Weimar Constitution10. The Weimar Constitution and the French declaration were held as the best examples at that time. The French work was an example for all constitutions developed after its adoption, and the Weimar Constitution was held up as a model of a modern and democratic constitution of the 20th century, and also as being one of the most advanced constitutions of its time11. So the best constitutions were chosen as models.
Although the human rights series of the French Declaration of the Rights of Man and of the Citizen12 contained, in essence, the personal rights (such as the equality of the sexes and freedom of private property13) and no social rights, as were provided in the Constitution of 1920 in Estonia, there can be seen some general influence. Into the Constitution of 1920 the liberal spirit of the French human rights declaration was incorporated. Above all, that containing the fundamental rights series was the first section to follow the introductory part in both the French document and the Estonian Constitution of 1920. Secondly, very characteristic of the general aim and essence of the Constitution of 1920 was the title of the chapter on human rights: 'About Fundamental Rights'. Although the main influence upon the Constitution of 1920 came, in my opinion, from the Weimar Constitution of 1919, there are some differences. In the Weimar Constitution and in the Estonian Constitution of 1937, the chapter was called 'About Fundamental Rights and Duties'. For the Weimar Constitution, the critical question is raised by J. Rückert: '[...] damit wird der Rechtsbefund janusköpfig. Wann gilt Recht, wann Pflicht, wird die Frage. Was vom Recht bleibt, wenn die Pflicht daneben tritt, wird entscheidend, vor allem in der Durchsetzung'14. This problem of duties was not present in the Constitution of 1920 but was to be present after adoption of the Constitution of 1937. Unfortunately, the time from the adoption of the Constitution of 1937 until the Second World War was too short to evaluate and characterise further developments in this context. In the case of the Weimar Constitution, the problem was evident for the latter generation, but the difficulties that could arise were not understood until the rise of the Nazi regime.
In comparison to the Constitution of 1937, that of 1920 has been held to be very liberal and to stress the individual and his rights or freedoms. Also, the individual had very few social rights under it, comparatively speaking15. This could be the influence of the French declaration, again.
In the Constitution of 192016, the basic norm for social and economic rights was § 25, which stated that economic life in Estonia has to be in accordance with equity and that the aim of it is for persons to secure adequate housing through laws that concern the acquisition of land, a place to live, etc., and via laws that concern the right to assistance in the case of young or old age, incapacity for work, loss of a provider, need, and so forth.
Freedom of mobility and to change living place were set forth in § 17, § 19 established the freedom to choose one's profession and freedom of trade, and § 18 provided the freedom to strike and associate. The general equality of all men was established in § 6: no one should be discriminated against on the basis of gender in the public sphere. Section 12 contained the norm of compulsory primary education, and § 24 specified the freedom of private property.
As was mentioned before, this Constitution was very much influenced by the Weimar Constitution. Although the Constitution of 1920 set itself apart from the German tradition17, according to which the human rights series, inclusive of the social and economic human rights, was traditionally very thorough (the Weimar Constitution contained 56 sections)18, we find some of the social and economic fundamental rights in the same wording also in the Estonian Constitution of 192019.
As in the Weimar Constitution, some of the norms had a declarative nature. Such was the case with § 25 of the Constitution of 1920 (the same applies to article 151 of the Weimar Constitution), which was in legal literature characterised as giving just the principal, overall aim that legislation was to strive toward20. Rückert is of the opinion that this article, which uses the wording found in the Weimar Constitution, contains an aim against the aim, a rule against the rule, and a right against the duty. Who should draw the lines of demarcation is left open21. For the Estonian constitutions, the question of where the lines should be drawn was, at the time, still unanswered.
Indirectly, the Supreme Court too has found that § 25 has a declarative nature and that the courts cannot use this as the basis for a decision, as it ruled in one other case that 'the court has to use the law (ius), principally staying within the bounds of equity (aequitas). If there is a contradiction between the law and equity, the legislator can change the law, and the court may not depart from the norms of law for purposes of satisfying the needs of equity'22. Thus, equity is the guideline for the court only when this is provided within the law. This does also mean that the Supreme Court of Estonia decided to assign itself a very positive role in interpreting laws.
Comparing the Constitution of 1920 with the Constitution of Finland, which was adopted at about the same time, in 1919, we can say that the Finnish work contained just very basic social and economic human rights, such as the protection of property and the worker (§ 6), freedom of movement (§ 7), equality in satisfying the cultural and economic needs of Finnish and Swedish citizens (§ 14), and from among the civil rights the...