Dialogue or Conflict? The Legal Reform of 1889 and Baltic Private Law Code

• Author: Toomas Anepaio
• Pages: 168-175

Toomas Anepaio

Dialogue or Conflict? The Legal Reform of 1889 and Baltic Private Law Code

The entry "border" is divided into three in the Estonian Encyclopaedia: - administrative boundary - line dividing the state into administrative units;
- economic frontier - line on which the check points protecting the domestic market are situated;
- state border - line marking the territory of a state.

Thus, border denotes, above all, marking, separating, parting.

It is common indisputable knowledge that Estonia (the Baltic states) is (are) situated on the border; however, neither in Estonia, nor to speak of anywhere else, has it been determined in such a unified manner what a border or a path is, what the position of situating on the border is, on what border(s) Estonia is situated.

The location of Estonia on the border is a fact catching the viewer’s eye on every map of Europe - this need not be even mentioned here; however, this triviality has determined and continues to determine our development to date, including legal development. Map No. 4 in S. Huntigton’s book "The Clash of Civilizations and the Remaking of World Order", reflecting the border between Western-Christian and Orthodox-Slavonic area, indicates that Estonia is located on the borderland of the Western cultural sphere. In other words or from the viewpoint of legal history - Estonia is located on the border of two large, Russian and German legal cultures.

According to the definition of S. Huntigton, Estonia (the Baltic states) belongs (belong) to the fracture line, region of conflict where the centres of civilisation or fundamental states fight one another. Thus this border is, above all, a site of battle, persisting opposition, a breaking point. The foreword to the Estonian version of the book by S. Huntigton, written by T. H. Ilves, the Estonian Minister of Foreign Affairs, also has a meaningful title "News from the Field of Conflict: Huntigton and Estonia." ¹ The Orthodox Cathedral of Alexander Nevsky with its onion-cupolas, standing opposite the Lutheran Dome Church and citadel of the age of the Teutonic Order, is an expressive embodiment of the historical persistence of such conflict.

Some dominant phrases in the accounts of the history of Estonia in the 19^th century, including legal history, and not only in the case of researches proceeding from the Estonian national viewpoints, are "fight, critical years, decade, etc." ² On the one hand it is justified if we think, from the viewpoint of legal development, about the fight for the abolishment of personal dependency of peasants and against this, for the rebirth of the University of Tartu (Dorpat) (i.e. the Faculty of Law), for the maintenance of Baltic autonomous provincial regime (status provincialis, der baltische Landesstaat, ostzeiskii osobyi poryadok) and codification of the Baltic-German law. Paradoxically, such a "fight-centred" method of treatment was equally suitable for both the Baltic-German and national historical accounts of the Republic of Estonia (1920-1940), as well as for the Soviet Marxist-Leninist historical writing. This approach unavoidably entails categorical generalisations, as the fight presumes that someone prevails and someone surrenders ³ , be they "revolutionarily-minded workers and peasants" or "Estonian people, cultivating their land and developing their culture on the shores of the Baltic Sea" for more than five thousand years.

I claim that such treatment already by its nature inevitably restricts the issue under examination.

The position of Estonia on the borderline or frontier between two major legal systems implies that both German and Russian researchers, who focus on a large system, frequently treat one or another event or process in Estonia (in the Baltic states) (i.e. on the border) only as a peripheral, insignificant fragment and do not take time or can not penetrate into the process on the border or the actual nature and significance of an event. On the other hand, J. Lotman claims that in the centre, ideas are often rendered static, stagnate, but in the periphery of a cultural oecumene they are renewed, enriched, i.e. semiotic processes proceed frequently more actively in the periphery of a cultural oecumene than in the centre. ⁴ The problem is further complicated, when one or even several (i.e. Estonian, Latvian, Baltic German) integral cultural systems (pro: legal cultures), striving to define themselves, are situated on the border.

In my opinion, these issues emerge distinctly for example in the studies of the Russian judicial reform ⁵ of 1864. The analysis by B. Vilenski, still serving as the principal work on the judicial reform as a whole in the Russian study of legal history, the Baltic states are examined only on 2.5 pages of 400. ⁶ B. Vilenski mainly emphasises the opposition of the Baltic-German nobility against the judicial reform and points out that the Justices of the Peace were appointed by the government, whereas juries were not established in the Baltic states.

J. Baberowski, author of the newest German study on the Russian judicial reform of 1864 dedicates to the Baltic states 11 pages out of 800. ⁷ He states accurately that the knowledge concerning the functions of the judicial institutions in the border areas of the empire are extremely scarce. ⁸ However, this does not prevent him from claiming confidently that there was little difference between the legal organisation of the Russian and Baltic provinces prior to the reform. According to him, only a sufficient supply of jurists accompanied by an opportunity to have recourse to codified law distinguished the justice of these provinces from that of the Russian provinces. ⁹

In his work, Baberowski self-evidently analyses, above all, the issues concerning the Baltic-German upper class, i.e. the nobility; only a couple of passages have been dedicated to the country people, i.e. Estonian and Latvian peasants. ¹⁰ It is yet stranger compared to the fact that in his monograph, J. Baberowski focuses his attention on Russian peasants and emphasises their avoidance with regard to modern law. J. Baberowski demonstrates that Russian people will not accomplish the transfer to the modern law. He accentuates that the gap, or in other words, the border will widen between the peasantry living in the pre-modern world of thinking and educated and Europeanised estates. The relationship between the literate Estonian peasants and modern law is left out from J. Baberowski’s analysis.

I dare say that although J. Baberowski himself does not clearly word the problem of the border in his work, he actually deals with this, i.e. the cultural frontier and the problem of surmounting it in his work.

When treating the border as having the connotation of a fighting, breaking and dividing line, we inadmissibly restrict the meaning of the border. In mathematics, boundary or frontier is a set of points belonging simultaneously to interior and exterior. (Frontier - a set of frontier points. Frontier point of a set - a point in space surrounded by points belonging to the particular set as well as points outside it. ¹¹ ) In semiotics, the border is viewed as the total of bilingual "translation filters", the passing through of which translates the text into another language (other languages). Thus, the points of the semiotic border may be compared to receptors that translate external stimuli into the language of our nervous system ¹² , to adapters.

With regard to this meaning, the border denotes a territory that allows for mutual understanding, positive dialogue - consequently, it is first and foremost a uniting, not a separating line. Conflict can naturally be viewed as a form of dialogue but in that case we could probably speak of a negative dialogue. However, we are now interested in a positive dialogue.

I attempt to analyse the legal reform performed in 1889 in the three Baltic provinces (Estland, Livland and Curland) or the implementation of the Russian court laws of 1864 in these three provinces as a dialogue between two different legal cultures, not as a battle between the advancing Russian legal culture and Baltic-German legal culture engaged in desperate defence. Although each and every dialogue, and in particular a dialogue proceeding as a reform, can be viewed as a process in time. At the moment, I choose to focus on two texts - the text of the third volume of the Baltic Provincial Code or the Baltic Private Law Code as of 1890 and "The Law Applying to the Reorganisation of Court Institutions in the Baltic Provinces" ("Polozheniye o preobrazovanii sudebnoi tshasti v Pribaltiiskikh guberniyakh") enforced by a registered ukase on 9 July 1889. ¹³ The reasons for this approach are twofold. Firstly, the current stage of research and secondly, the limited size of this article that will not enable me to analyse the process the duration of which was at least 25-30 years. ¹⁴

To date, the legal and historical analysis of the legal reform in the Baltic provinces in 1889 has mainly paid attention to its "external aspects", focussing primarily on the structure of the judicial institutions (Gerichtsverfassung) and the general description of codes of proceeding, where some minor deviations with regard to the Russian inland provinces have been noted. However, the legal historians have not actually analysed the changes taking place in procedural law, whereas the draft Code of Civil Procedure, submitted by F. G. Bunge but never implemented, has been entirely left out. ¹⁵ As it is known, the collection of laws issued by Alexander III on 9 July 1889 consists of the following acts ¹⁶ : - registered ukase concerning the implementation of the court laws of 20 November 1864 in the provinces of Livland, Estland and Curland and reorganisation of local peasant agencies (Imenoi vysotshaishii ukaz o primenenii k guberniyam Liflyandskoi, Estlyandskoi i Kurlyjandskoi sudebnykh ustavov 20 noyabrya 1864 goda i o preobrazovanii mestnykh...