Legal Integration and Reforms - Innovation and Traditions

• Author: Irene Kull
• Pages: 119-123

Irene Kull

Legal Integration and Reforms - Innovation and Traditions

The goal of European legal integration is common civil law that would eliminate discrepancies between legal systems and ensure a common legal culture throughout Europe. Both international organisations and national legislative drafters have extended and intensified their activities in the name of bringing legal cultures closer together. International organisations have a growing impact on national law, as assimilation and adjustment of their developments to national law undoubtedly requires certain efforts from every legal order. Amendments to the codified legal sources of civil law in Europe also have their impact. Research into the laws of other countries and their use in the development of national laws have become unavoidable in performing the different tasks of unification. ¹

Since regaining its independence, Estonia has had to rewrite its entire civil law. Legal political decisions have been made concerning which legal systems are suitable to serve as models in the preparation of laws. "Loans" from other countries are the most common method of legal exchange and unification of legal regulation. Legal systems have had and will have mutual effects through different channels. The loaning of an entire codification from another country can have a particularly large impact on the legal system. ² In the development of its own legal system, Estonia has borrowed ideas and regulations from several countries. The choices have been largely technical, without consideration to the social background. Regard was given to the available court practice of the respective countries and the actual application of various provisions.

Integration-orientated changes in the legal system imply legal reforms for Estonia. Reform means reconstruction, improvement of the bad or wrong, correction. ³ In making improvements, account was taken of the effective laws of Western Europe as well as new ideas and theoretical solutions that have not been reflected in the legislation of any country. Parts of these are certainly innovative for the whole European civil law. However, the majority of changes are innovative only for Estonia’s own civil law. ⁴ No significant attention has been paid to issues such as the social consequences of innovation and its impact on the formation of legal culture or changes in it. Any change can be effective only if it assimilated into the deeper structures of law and the social life structures of the particular jurisdiction that constitute a unique part of legal culture. ⁵

Legal innovation in a particular jurisdiction blends into it through legal traditions. As innovation finds its place in the new legal culture and is understood against the background of traditions, it can become a part of legal traditions and the legal system. One could agree with the position that we should begin not from innovation, but from mapping the existing traditions in order to harmonise law and have any success with it. ⁶

The problems of legal traditions and legal culture are becoming topical for the Estonian society. There was no social demand for this kind of discussion earlier, because everyone sensed the need to adopt new laws as quickly as possible to reflect the changed social order and ensure the efficiency of the economy. It was a popular belief that all social problems would be solved and an effective market guaranteed by the passing of laws. It was not acknowledged that law is not simply a normative text boiling down to formally defined acts. It has been said that the period of legal positivism has passed, which implies expansion of the concept of law and giving it a fresh consideration. ⁷

What is the unique legal culture of the Estonian jurisdiction, whose structures should accept the entirely foreign and little-known norms and rules of behaviour contained in new laws? Estonia has practically no tradition or experience in free market economy. Many market economy terms acquired substance only 3-4 years ago. Court practice, too, has been uncertain, as it has to rely on the Civil Code from 1965 and apply norms that are clearly not in accordance with the changed relations in society. How should law be developed, how should legal analogy be put to practice and by what arguments should the already established interpretation of norms dating back to the 1960s and 1970s, whose application has been similar for nearly 20 years, be questioned? It is not easy to find answers. The Supreme Court has assumed a role that the courts are not yet accustomed to, but the necessity for which is undoubtedly perceived - the role of developing law in issues where the effective law can no longer be applied in the old way, as this would cause judgements to contradict the principle of good faith. ⁸

The rapid changes in the Estonian legal system have made a substantial contribution to the reorganisation of the economy and society and ensured the efficiency of reforms. However, the implementation of new laws has already raised the issue of the functions of law in today's society. A broad approach to law enables to determine the permanent basic functions of law as a normative regulation system. These functions include preventive influencing of behaviour and reorientation to avoid conflicts, organisation and harmonisation of activities within groups of humans, and satisfaction of group specific interests and common goals. ⁹ The task of law is thus to react to the needs of society and to have, above all, a regulative function for various groups. Law reflects the social values of the society and depends on them, while it controls the forms of economic and political activities in today's society (rule of law). ¹⁰

In socialist society, law did not exist apart from administrative and political control and planning. The task of law was to plan and organise the economic and social structures of the country. ¹¹ A feature of socialist law was prerogativity, as opposed to the normativity common to Western legal systems. ¹² To what extent, if at all, have the legal traditions formed in such a legal system been abandoned during a decade, and how many legal traditions does a new society have to offer to replace the discarded ones? Socialist law certainly does have its common features with the Western legal systems. The bases of the civil legislation of the Soviet Union and the related civil codes were largely based on the examples of the German BGB, the Swiss code of obligations and the French civil code.

In the classical division of legal systems where all legal systems are, as a rule, divided into five categories ¹³ , Estonia lost its former place among socialist legal systems after disintegration of the socialist bloc. The placement of a legal system provides certain orientation in specific areas of law, especially when the formation and differences of legal systems are studied comparatively. ¹⁴ As our laws are largely based on the example of German law, we have to look for the characteristic features of the orientation of changes in the German pandects system. The...