The Republic of Estonia Constitution on the Concept and Value of Law

• Author: Raul Narits
• Pages: 10-16

Raul Narits

The Republic of Estonia Constitution on the Concept and Value of Law

1. Estonian legal order as a part of continental European legal culture

The re-establishment of Estonia's independence in 1991 brought along an important constitutional duty for the state of Estonia - to create a new and modern constitution. The problem is that the modern democratic organisation of society has some principal bases which aspirers for actual democracy must know and adhere to.¹ For the state the only option is to legitimate itself with and via law. It is important to take into account that the Estonian legal system has belonged, and still belongs, to the legal culture of continental Europe. Such a legal system is founded on the idea of ancient Roman legal culture. Already in the ancient world, the legal system was built via legislative drafting of norms. The state of Estonia, taking up the restoration and building of its legal system, is doing it via creating legal norms. The result of the creation of rules must be sufficiently general (abstract) while understandable to the addressees of legal norms. This is necessary so that laymen and the appliers of law are able to adopt decisions that have a legal meaning and are in compliance with law while employing minimal efforts. The Estonian Constitution² (hereinafter: Constitution) emphasises its origins in the continental European legal culture in its § 3 which sets out: "The powers of state shall be exercised solely pursuant to the Constitution and laws which are in conformity therewith." Thus the Constitution, in the formal sense, is a document concerning the formation and activities of political institutions, which provides for the legislative procedure and whose provisions are at the top of the hierarchy of legal norms. The catalogue of fundamental rights and freedoms is also naturally a part of the Constitution. Here we should stress that the previously mentioned provision can be found in Chapter I of the Constitution which provides for the basic principles and norms of Estonia's statehood and its legal structure which have a paramount importance on all the other provisions of the Constitution as well as the legal order as a whole.³ Obviously this provision speaks about the priority of the Constitution, about the general reservation of law and the priority of law. We should mention that a similar provision was already present in the first constitution of the Republic of Estonia adopted in 1920. Thus, the state of Estonia has, since its inception, emphasised the democratic and constitutional solution in its national legal system. Several renowned jurisprudents have regarded the Constitution very highly.⁴

2. Applicability of rules of law

Legitimation via rules of law should be characterised via their applicability. The problem is that even the legal applicability of a constitutional provision does not guarantee other important aspects thereof - factual and social ones. In other words, the legitimacy and applicability of rules are also two qualities.

One must support the standpoint, often expressed in professional literature, that based on the hierarchy of rules, we should recognise a justifying general rule.⁵ If one does not commit to that condition, he or she must admit not being a supporter of the Western legal ideal.⁶ A great role is played by how law is understood, or what law is.

In Estonia, some members of the parliament (the Riigikogu) have adopted the standpoint that "unlike several other tools of social control, the authoritative nature of law is the basis of the functioning of law, a kind of commanding force: law spreads like a protective shield over society, it is above society." And: "/.../ law is the command of the highest vehicle of power (sovereign) of the country. Sovereign is a part of society who has the right to subject the rest of the society to its power and whom that rest of society is accustomed to obey. In other words: in a legally structured society, the harmony of the life and activities of its members are not achieved by their direct interrelationship but via their shared subordination to the leading political authority /.../ and the set or rules established by it - the law."⁷ Such an approach is an expression of the radical-positivist understanding of law introduced in continental Europe's legal culture already in the 17th century according to which the will of the sovereign is seen and recognised as the only source of law. Today we cannot accept the standpoint according to which law is the command. Reality is characterised by that in society order and security develop primarily as a result of the behaviour of the members of society. Modern legitimation of law is ultimately the communicative reality. According to modern jurisprudence, both law and the theory of law are primarily a normative system of information and communication.⁸ There can be as much law in society as "dictated" by the subjects of law by their behaviour. In order that legislative efforts be fertile, the requirements arising out of applicable law should be realised in the behaviour of the subjects of law. Just as naturally, contemporary understanding of law includes understanding the law in its objective sense, as the law written down by the sovereign. Just as natural is the understanding of law in its subjective meaning or the pattern of behaviour of and for the subject of law arising out of objective law. However, modern understanding of law adds the understanding of law as a normative system of information and communication to the traditional aspects. Law encompasses everything related to the part of human behaviour relevant for law. This normative correlation which exists between law and society must be seen and recognised. This must be especially emphasised in the context of constitutional provisions as their level of abstraction is, compared to the rest of the legal structure, higher and links to the social dimensions of law are more difficult to perceive.⁹

Below I will try to epitomise the modern understanding of law using § 1 of the Constitution as an example: "Estonia is an independent and sovereign democratic republic wherein the supreme power of state is vested in the people. The independence and sovereignty of Estonia are timeless and inalienable". I will concentrate on the problem of sovereignty.

The quoted section contains the principles of the sovereign power of state, the sovereignty of people, democracy and republicanism. In the Constitutional Assembly the question about how to lay down the independence and sovereignty of Estonia in the Constitution so as to prevent a reoccurrence of the events of 1940 when Estonia was occupied by Soviet Russia. In essence they tried to find answers to the question of the legal and social relationship, the constitutional form of which would also serve as a constitutional guarantee. It was considered to insert in the Constitution a provision prohibiting the capitulation of Estonia.¹⁰ The guarantees of independence and sovereignty were spread over different chapters of the Constitution.¹¹ At the 16^th session of the Constitutional Assembly, the head of the editorial committee of the Constitution proposed to the Assembly to word the section: "The independence and sovereignty of Estonia are timeless and inalienable."¹² The editorial committee found that such a guarantee meant that the independence and sovereignty of Estonia could be alienated only by amending the Constitution at referendum.¹³ Later it was further wished to add the following text: "No one has the right to sign an instrument surrendering the Republic of Estonia". The text was not added because the editorial committee believed that it did not add any weight to the already existing wording.¹⁴ Why this digression to recent past? Because formally the second sentence of § 1 does not have an independent regulative meaning. The timelessness and inalienability of Estonia's independence and sovereignty derive from the first sentence of § 1. Nevertheless, the second sentence of § 1 demonstrates vividly the great importance attached to Estonia's independence and sovereignty. The facts of actuality and social reality (including the events of 50 years ago) were carefully considered in developing the Constitution and an attempt was made to build a rational "bridge" between past and present, so that the solution offered would, as a kind of a social agreement, be the best possible one. Thus, for the Constitutional Assembly, working with the text of the Constitution did not just mean elaboration of the text in preparation for referendum. In order to cognise law, one must see and recognise the normative correlation which exists and has always existed between law and society. Therefore one must not just be able and willing to approach the social dimensions of law, but also behave accordingly. Law cannot be and is not barely the result of the decisions made by individuals or their associations. However, this is exactly what continental European legal positivism has been claiming for a long time. In the...