Development of Estonian Criminal Law
| Author | Jaan Sootak |
| Pages | 52-55 |
Jaan Sootak
Development of Estonian Criminal Law
Tiny Estonia does not have anything comparable to the written sources of law of the Germans, Scandinavians or Russians. The reason for this is the fact that during the time written law and state legislation were spreading elsewhere in Europe, Estonia was not yet a state1. Due to Estonia’s geopolitical location, discussion of Estonian law mainly revolves around the influences of various legal systems and their amalgamation. As a result, the notion of Estonian criminal law boils down to the question of which of the criminal laws that have been in force here were formulated in this country and therefore took the local characteristics into account, i.e. the way of life and thinking of the people, cultural traditions, economic relations, level of jurisprudence, and many other things.
The view of Baltic-German law historians concerning the existence of criminal law and indeed all law in ancient Estonia before the period of the German and Danish conquests is that law developed in Estonia only in the 13th century. For example, F. G. Bunge claims that the arrival of Germans was the beginning of "German life in Livonia" and that German common law and town law were "not only the precurser but also the direct source" of Livonian law2.
However, this opinion cannot be seen as having a singular meaning. It is important to distinguish between common law and written law. Indeed, Estonians did not have the latter until the arrival of foreign conquerors and in this context the first source of law in conquered Estonia may be considered to be Waldemar-Erik’s feudal law of 1315. This is a legal instrument formulated in the counties of Harju and Viru, which were under Danish rule, and is based on the laws handed down from the period of King Waldemar II (1202-1241) and renewed and confirmed by King Waldemar VII. Among other things, this law grants vassals the hand and neck right, i.e. the right to punish the native peasants by corporal and capital punishments. As for common law, it undoubtedly already existed for the natives, which Baltic-German law historians do not actually deny. Referring to the chronicles by Henrik the Lett (1224-1227) and Christian Kelch (1695), F. G. Bunge claims that blood-feud and polygamy existed among Estonians. It is also recognised that peasant law which applied to the natives was largely based on local common law rules. On this basis Estonian law historian Jüri Uluots (1890-1945) developed his continuity theory according to which native common law was included in both surrender agreements with conquerors and in post-conquest peasant law. The contractual transfer of power and the survival of the law of Estonians throughout centuries of foreign rule provide the grounds for J. Uluots’s claim of the continuity of Estonian law until the establishment of the first Republic of Estonia in 1918.
It is a historical fact that the common law of the pre-conquest times continued also in the post-conquest period. Nevertheless, it is quite another matter how justified it is to speak of criminal law characteristics specific to a particular people if we are dealing with such wide spread criminal law customs like blood-feud, composition system, etc. In the case of ancient Estonia, too, one can speak of general criminal law customs, although with certain peculiarities. Estonian law historians Jüri Uluots and Leo Leesment claim, for example, that early criminal law of Estonia has many features in common with the criminal laws of Gotland and Russia. For example, § 9 of the Peasant Law of Livonians prescribed man-money of 40 marks in silver for killing a peasant û a fine known only in the peasant laws of the Baltics, as other sources (land law and town law) prescribed different rates. At the same time, Russkaya Pravda, the 11th century source of law of Old Russia, prescribed a fine of 40 grvinas for killing a person belonging to the court of a prince (§ 11).
The criminal law of the middle Middle Ages in Estonia was predominantly German law. During 1322-1337, a book of law which became known as...
To continue reading
Request your trial