Estonia’s First Law Journal in the Struggle for Law

Author:Marju Luts-Sootak
Position:Professor of Legal History University of Tartu
Pages:59-68
SUMMARY

1. Introduction - 2. The programme: Groundwork on the Struggle for Law - 3. The people involved - 4. Implementation of the programme - 5. Conclusions

 
INDEX
FREE EXCERPT
1. Introduction

On 1 December 2009, the Estonian-language university in Tartu celebrated its 90th anniversary. Estonian-language law journals, however, celebrated an anniversary of an even rounder number-a whole 100 years. Instead of festivities, a more practical approach was taken to celebrate the latter in the form of a scientific conference. A festive touch was nevertheless added by an exhibition on display at the university library1. The dull appearance and brevity of the first publications is striking in comparison with the more recent journals boasting of dignified thickness and, as printing techniques have improved, also colourful designs. The first law journal in Estonian 2 was in more or less DIN A5 format and contained 16 pages. It was titled Seadus ja Kohus. Õigusteadline ajakiri (in English, 'Statute and Court. A Legal Journal') and it appeared in January 1909. This journal was not even published in Estonia but issued in the capital of the Russian empire, St. Petersburg. It was only in its third year of publication that the executive editor of the journal moved to the capital of the Province Estland, Tallinn 3 , and so did the journal. Nevertheless, the Estonian-language newspaper Peterburi Teataja (in English 'St. Petersburg Gazette') continued to consider the journal its supplement as late as 19134. The fact that Estonian-language newspapers, books, and in this case a legal journal were published in St. Petersburg, the capital of the Tsarist Empire, is not as surprising as it may seem at first. "The City of Hopes" 5 , St. Petersburg, was the closest major city, attracting not only the working classes but also, and predominantly, the intellectuals, among whom lawyers were at the forefront6. During the second half of the 18th century, the academic consolidation had led to the foundation of law journals in several legal cultures in Europe7. Why shouldn't the case have been the same for Estonian lawyers? However, the beginnings of Estonian-language legal journalism are distinctive in its own right and as such worthy of a closer look beyond a mere mention of the anniversary. In the following I will discuss the programme of the journal, the theoretical backgrounds of that programme (in Section 2), and the people involved as well as its actual implementation (in Sections 3 and 4).

2. The programme: Groundwork on the Struggle for Law

The first issue of the journal opened with a 2.5-page address, which might also be taken to represent the programme of the journal8. The need for such a journal was justified by evoking the spirit of the times. Law and the knowledge of it had become necessarily ineluctable. This, as elaborated upon in the address, was, among other things, supported by the fact that legal studies had been added to secondary-school curricula, not to mention those of the universities. However, it was not the intention of the journal to undertake a scientific study of law. Without questioning its study in the university as a rightful foundation on which to build "high and beautiful legal structures", the editor of the journal found it to have one great deficiency-namely that "theoretical knowledge of law" neglected the "sources of life".

Those very first keywords in the address of the editors seem to refer to a contemporary shift towards the arrival of a new kind of legal science that took its origins to stem from the 'life' itself9. Although the publication of Seadus ja Kohus coincides with the peak of the activity of the so-called Freirecht-movement in Germany and among its foreign followers 10 , the goal of the first Estonian-language law journal was not one of legal science of a new kind. Seadus ja Kohus aimed to achieve the contrary-to take up the task of educating the public and disseminating information about current law to larger masses. Specially mentioned was the problem that the "practical" knowledge of law and legislation was in need of dissemination in order to "serve the demands of life". Surely that would have sufficed to justify the expressed need for a popular law journal: the educated sons of the people had decided to spread their knowledge on a broader scale and in the language of the country's inhabitants. However, rather than limiting himself to the need to disseminate practical law, the editor's train of thought took a loftier-in a sense, even a metaphysical-turn.

"Practical knowledge too" was to have "its higher and more beautiful purpose". The editor had to elaborate a bit on that idea. His concept was, namely, built on the notion that the "basic law" of social life "was the struggle for existence and the struggle for a better position". Though the laws of nature inevitably dictated the presence of an urge towards a better life in any given person, biological or physical laws of nature were not determinants of the social struggle. The rules of the struggle were instead determined by "the authorities on legal power-i.e., first and foremost, the government of the state-and also by miscellaneous other public authorities". In order for an individual to be successful in improving his position and situation, he had to know such rules that were forced upon him, as otherwise his "activities [...] turned null and void". Turning the legal opportunities to one's advantage was to serve the 'higher purpose' even if, in any particular case, the gain of one person damaged "another person or even a crowd of people". Thus, by taking advantage of the legal opportunities available to him, that one beneficiary served a high ideal-the sense of law:

"As a legal measure exercised by someone for his own benefit might be useful also to the broad masses, then each individual member of the social collective is obliged not to have his rights trampled upon but, rather, to protect them in any way possible, thus preserving the social sense of law. Development of such a sense of law also belongs to the realm of disseminating practical knowledge of law, thereby rendering a huge value to practical knowledge of law." 11

The circle was complete: practical knowledge of law helps an individual to fulfil his life plans pursuant to the law but nevertheless selfishly. Protecting one's rights was to increase general benefit because the building up and development of a personal sense of law also allowed protection and preservation of a general, social sense of law.

Now indeed the editor's address spoke of the people for whom the law journal had been published. According to the editor, the nation-whether Estonians or the whole of Tsarist Russia, is not mentioned-was in precisely in that phase of its life where its people were actively pursuing a better standard of living and social position, and the editor was confident that this was possible only by masterfully taking advantage of legal opportunities, and not by opposing them. Better knowledge of available legal measures was supposed to improve not only the standard of living of an individual but, further, the whole nation:

"A nation may further its life only if it carries a firm sense of law, as is the best witnessed by the flourishing of the Roman State." 12

Both the keyword 'sense of law' and the psychologisation of law as a whole were very much in fashion during the first decades of the 20th century. However, the programme in question demonstrated particular kinship with one particular theory in this area. What I refer to here is two significant elements: firstly, the obligation (!) of everyone to exert his rights and not have them "trampled upon" and, secondly, the teaching on how such a struggle of an individual for his subjective rights is automatically beneficial to the whole society as the individual contributes to preservation of the social sense of law.

The idea concerning everyone's obligation to stand up for his rights was associated, in suggestively powerful language, with nothing less than the moral existence of an individual:

/p. 31/ III. The struggle for his right is a duty of the person whose rights have been violated, to himself. [...] In the law, man possesses and defends the moral condition of his existence-without law he sinks to the level of the beast [...] /p. 32/ [...] The assertion of one's legal rights is, therefore, a duty of moral self-preservation - the total surrender of those rights, now impossible, but once possible, is moral suicide.

Standing up for one's right was something even bigger-an obligation aimed toward the preservation of the society and law as such:

/p. 69/ VI. [...] the assertion of one's legal rights is a duty which he owes to society. [...] /p. 70/ Concrete law not only receives life and strength from abstract law, but gives it back, in turn, the life it has received. It is of the nature of the law to be realized in practice. [...] /p. 71/ But while the realization in practice of public law and of criminal law is assured, because it is imposed as a duty on public officials, the realization in practice of private law is presented to individuals under the form of their legal rights; that is, it is left exclusively to them to take the initiative in its realization, left exclusively to their action. [...] the reality, the practical force of the principles of private law, is proved by the assertion of concrete legal right. [...] /p. 73/ But each of us, in his own place, is called upon to defend the law, to guard and enforce it in his own sphere. The concrete legal right which belongs to him is only his authorization by the state to enter the lists when his interests require it. [...] /p. 74/ [...] In defending his legal rights he asserts and defends the whole body of law, within the narrow space which his own legal rights occupy. Hence his interest, and this, his mode of action, extend far beyond his own person. The general good...

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