Justice Laws of 1889 - a Step in Estonia’s Constitutional Development

Author:Toomas Anepaio
Pages:150-160
SUMMARY

1. Introduction - 2. Public nature of judicial power - 2.1. Earlier research - 2.2. Establishment of public judicial power - 3. Separation of powers - 3.1. Concealment of the separation of powers - 3.2. Breaking the separation of powers in the empire - 3.3. ... and its maintenance in the Baltic provinces - 4. Equality of citizens before the court - 5. Summary

 
INDEX
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Toomas Anepaio

Justice Laws of 1889 - a Step in Estonia's Constitutional Development

1. Introduction

Considering Estonia's history and history recording traditions, it may be understood why the history of written constitutions of Estonia, or to be more exact, records of the related history, usually start with the birth of the Constitution of 1920.

The written history of Estonian law indicates that the acts preceding the constitutions have been referred to only in a few cases. Moreover, the prevailing understanding of these writings is that the principles of the rule of law and the first legal provisions characteristic of a state governed by the rule of law reached the Estonian legislation only when the country became independent and republican constitutions were drawn up after World War I.

This article attempts to give insight into the meaning of the 1889 reform for Estonia's constitutional development, focusing on the implementation of various rule of law principles and provisions in the Estonian legislation before 1917. It should be admitted that those principles and provisions were not implemented fully or without hindrances; the 1889 reform is thus not claimed to have created a state governed by the rule of law in one area of the empire. The article mainly focuses on the procedural codes and the laws regulating courts administration at the time. They are viewed in conjunction because of the historically close intertwining of procedural law and the courts administration1.

2. Public nature of judicial power

The public nature of the administration of justice is taken for granted today and does not usually deserve much attention. However, in the historic view, the state monopoly of justice is a fairly young phenomenon; until the beginning of the 19th century it was common in Europe that the administration of justice (especially in civil matters) was largely non-public or even private2. The central power had to share the judicial power with many other subjects.

Estonia is no exception, although already in the 1630s a large-scale judicial reform was carried out here (mainly in South Estonia), lead by J. Skytte, in which course a (Swedish) state court system was established, topped by the creation of the highest court in Tartu3. The reform also established state control over non-public courts4. In later history, fully public courts almost disappeared in Estonia and (Russian) state control over non-public courts weakened substantially. For example, in the Estonian province, the judges working outside of towns were not appointed by any state institution in the 19th century, and they were not remunerated by the state5.

2.1. Earlier research

Literature discussing the judicial system of the Baltic provinces in the 19th century and the judicial reform of 1889 generally states that the pre-reform courts were class courts. There is no detailed characterisation of the courts; even the public or non-public nature of the courts and the issue of patrimonial courts have not been given a closer view6. As the regards the issue, or rather, silence on the issue of the public nature of the courts, both Baltic-German, Russian and Estonian researchers hold surprisingly similar opinions, but there is reason to believe that their opinions do not arise from the same grounds.

The former Baltic-German elite, especially the knighthood, for a long time tacitly relied on the premise that the 'Baltic Land State' (Landesstaat) was indeed a state and its institutions were state institutions. Classes, especially knighthoods, understood themselves to be the Land7. This opinion still prevailed in the 18th, but not in the 19th century.

The traditional way of thinking was still for a long time one of the leads in the Baltic-German approach to history, especially due to political and ideological factors. For example, the Landtage of the knighthood are time and again compared to a parliament and not a local council8. Today's German researcher J. Baberowski uses the term 'die baltische Eigenstaatlichkeit' to characterise the situation at the time9. Relying on A. v. Tobien, G. v. Pistohlkors points out the lack of a state as such in Eastern and Central Europe before World War I. He claims that many (public and communal) functions were carried out by various class and patrimonial corporations10.

The leaders of the 1864 judicial reform in the Russian Empire viewed the existing courts as state courts and the 1864 Judicial Authorities Act did not specifically address this aspect. The problem of landlords' patrimonial justice was considered solved together with the elimination of serfdom under item 7 of the Manifest of 19 February 1861 and §§ 25-28 of the act11. Earlier Russian researchers have adopted the views of the Russian politicians of the time without critique; at least the historiography of the time does not question the issue of the public nature of the courts. According to the prevailing opinion, the courts acting in Russia before the 1964 judicial reform were class courts, but in any case they were state courts12. This position arises from the peculiarity of development of the Russian legal and judicial system, in which the state and the autocrat played a special role. According to F. Kaiser, the central power at the time of Katherine II granted the classestheopportunityand right to participate and represent their interests in the administration of justice. The state itself constantly empowered the voice of the aristocracy for various reasons; from 1831 the state allowed the aristocracy to elect the chairman of the provinces court of appeal13.

Unfortunately, this understanding like some other positions14 has been transposed without further consideration also to the Baltic and Polish provinces of the empire, but as opposed to Russian society, the class corporations here were not a 'state venture'15 without their own original traditions, including in the sphere of administration of justice. The classes and class institutions in the Baltic provinces were original, they were not created by the central power of the Russian empire. The administration of justice was also originally in the hands of the classes themselves and in these provinces, the central power rather attempted to subject to state control the administration of justice that belonged to and was executed by the classes. It should be reminded that apart from the magistrates that administered justice in the towns, the court members and officials of all levels in the Estonian province were elected by the knighthood and they did not require any approval by the representatives of state power to take office16.

The phrase 'class court' thus bears a different meaning in the Russian and Estonian legal historical writings.

As regards Marxist researchers, an inquiry into the public nature of the courts was prevented by the frameworks of historical-dialectic materialism, and the predefined use of the main categories of this theory -- 'basis' and 'superstructure' in the narrow Soviet interpretation. The court belonged to the 'superstructure' of social, political and legal institutions. The court as a repressive punitive body that protected the interests of the governing exploitative class was an inseparable part of the superstructure, the most important part of which was the state. The court in turn came into being after people were divided into the exploited and the exploiters and after private property and statehood emerged.

According to F. Engels, during the primitive communal order (in the archaic legal culture) life ran: 'without soldiers, gendarmes or police; without nobles, kings, governors, prefects or judges; without prisons, without trials....'17 According to J. Stalin: 'The state emerged by a division of society into hostile classes; it emerged to control the exploiting majority in the interests of the minority being exploited. The main instruments of exercising state power are the army, punitive bodies, intelligence service and prisons.'18 From these arguments it was derived that 'Two parallel forms of state duress run in through the entire history of exploitative societies: all forms of administrative duress, of which the strongest is military suppression, on one hand, and the judicial form of state duress, on the other hand.'19

This opinion was not swayed throughout the Soviet-Marxist legal discourse. Based on the general views of historical-dialectic materialist and Soviet-Marxist legal theory, it was inappropriate in the Soviet legal discourse to question whether the court was actually a public function within the legal meaning of its time, in one stage of history of another.

Estonian researchers of different periods have tacitly accepted the positions of both Baltic-German and Russian Marxist and non-Marxist authors.

Following from the above, the public nature of justice has not been tackled by the studies of the 1889 judicial reform in Estonia. It is quite an ordinary argument that the German judicial system was replaced by the Russian system20, but neither the German nor Russian judicial system is a defined legal term. On the other hand, it has been stressed time and again that the courts of the Russian judicial system established by the 1889 reform were, with a few exceptions, non-class courts21. This is often accompanied by the argument that the maintenance of parish class courts was a most vivid remnant from the feudal system22.

2.2. Establishment of public judicial power

The fact that a principal change occurred in Estonia in 1889 -- a transfer from non-public to...

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