Magister iuris, Lecturer of Legal History, University of Tartu
Roman Law in the Baltic Private Law Act -the Triumph of Roman Law in the Baltic Sea Provinces?
A part of the Baltic countries belonged to the Holy Roman Empire from the 13th century. Roman Law was recepted in Europe and legal education was usually based on sources of Roman Law; the Baltic countries which belonged to the Holy Roman Empire of the German Nation also recepted Roman law, both as a part of canon and secular law. Roman Law remained in force even after the status of the Baltic states changed1. Until the entry into force of the Baltic Private Law Act 2 (BES) in 1865 Roman Law applied in the Baltic states subsidiarily with the European ius commune. In other words, it was applied only if local sources of law did not provide a solution to an issue. In the practice of not later than the 18th-19th centuries Roman Law was still applied quite extensively; it was preferred to local law and in many areas it was even transposed in its entirety3.
Such a wide application of Roman law gave reason for criticism by proponents of local law. The author of the draft BES, Friedrich Georg von Bunge 4 was convinced that local practitioners rely too much on the principles of Roman law5. In his programmatic writing on the drafting of provincial law, Bunge claimed that Roman law should be avoided as much as possible in the preparation of the future law 6 , but at the same time he stated that Roman law was the common part of all provincial law and its omission from the Provincial Code would imply an incomplete approach to the local private law. However, the approach to local private laws should be "reliable and complete"7. In addition, there are gaps in provincial law where the principles of Roman law should be referred to and their applicability defined, but not more8.
At the same time, researchers of the BES have often stated that Roman law was the main source of the BES. J. Jegorov finds that the reception of Roman law, especially its third part plays an important role in the codification of local laws9. A. Ylander has even cheered that in the form of the BES, Roman and canon law was able to celebrate its triumph in the Baltic Sea provinces10. The BES references and index of sources seem to refer to that, as many authors have concluded11. These suggest that despite Bunge's efforts and claims, Roman law was indeed the main source for the BES. The reason why the sources were added was the requirement arising from the rules of the Russian imperial codification project that sources should be cited under each article. The requirement was based on the idea of gathering together all existing law and the same applied to other legislation of the Russian empire.As the Baltic Private Law Act was essentially a collection of various local and subsidiary laws 12 , each section was supplied with a reference to the source. Roman law (the codification composed in 529-533, Corpus iuris civilis - CIC)was cited as the source very often13.
Hermann Blaese has claimed (as opposed, e.g., to Samson von Himmelstierna 14 , the author of the previous draft provincial law, whose CIC citations were not always valid, especially where the article was copied from the General Prussian Land Law 15 ) that when compiling the BES, Bunge personally checked "all the referenced citations from textbooks and only if they proved to be correct, he transposed the text and the latter [i.e., citations]"16. Such a multitude of references to Roman law and Bunge's alleged diligence in checking them is somewhat out of line with Bunge's words about the necessity to reduce the proportion of Roman law.
In this paper I have tried to identify whether and to what extent the references of the BES articles actually refer to the substance of the Roman law sources referred to. As Hermann Blaese has (probably based on A. E. Nolde) stated that "codifiers were able to find ready formulations from textbooks and it was easy to transpose those to the codification" 17 , I have viewed not only "pure" Roman law 18 but also the textbooks and manuals that Bunge could have used for drafting the BES, so as to identify whether they and which of them could serve as the basis for the sections and the references to the CIC. My choice of authors is based on Bunge's own references, the study by A. E. Nolde 19 and contemporary standard literature.
In the course of writing the paper, a question arose which is posed at the end of the paper: what was Bunge's goal of adding the source references? It may have been a wish to simply present the sources, or he may have had broader objectives. For example, when drafting the Svod Zakonov, M. Speranski who was criticised for excessive reliance on the Western, especially French legislation, was ordered to supply references to Russian law to all the articles. For this task Speranski selected a famous specialist in Russian law, who performed the task "with great difficulties and often with extremely strained interpretation". Nevertheless, the Svod Zakonov contains articles which are almost identical to the wording of the French Code civil and institutes that Russian law was formerly unfamiliar with20. One of Bunge's objectives was certainly to lay down as many provisions applicable in the "prevailing practice" of the Baltic provinces, so as to compile a full set of laws. Or did Bunge, as already mentioned, wish to reduce the proportion of Roman law?
My analysis is based on the chapters of the BES governing the classification of things and servitudes. These parts were chosen because they are especially based on the ius commune tradition and are still largely based on Roman law (CIC) today21. The source references of the relevant articles of the BES also refer to Roman law and Bunge has stressed that only the general principles should be adopted from Roman law22.
In identifying the origin of the text of the BES articles, I used first of all the statement by F. G. von Bunge in his autobiography that "when studying the sources of private law of all three provinces I took the edition of Dabelow's general private law handbook (Handbuch des gemeinen Civilrechts) with the empty supplementary sheets and filled them in with citations from provincial laws. This became the basis of all my later works on this law"23. I, too, referred to Dabelow's Handbuch..24.. In addition, Bunge has provided indirect hints on the preparation of the BES, namely that the comments of Ottomar Meykow, Professor of Roman Law at the University of Tartu have special value for him so that he took them into account to a great extent25. According to Bunge, Meykow was the editor of the BES and had services in bringing its content into conformity with the newer doctrine26. Therefore I compared the final version of the BES also with the draft prepared by Bunge alone27. There were hardly any differences in the two chapters I reviewed. One article concerning the classification of things had been split into two articles in the final version. One article had been added to the servitudes chapter compared to the draft. One source reference had been added later and one had been deleted.
Since Meykow may have advised Bunge also on the contemporary standard works, I looked for the textbooks which Meykow himself used for teaching. In the university's lecture plan, the main work listed under the literature of Meykow's lectures was the pandect textbook by L. Arndts in various editions28. In addition I studied the pandect textbook by K. A. Vangerow, which was also a common approach and used by O. Meykow in his thesis for a candidate's degree29. I also checked the pandect textbook by F. G. Puchta, one of the best-known jurists of the 19th century, which was considered a standard work at the time30.
A. E. Nolde, Docent of the University of St. Petersburg has written a paper on which textbooks and sources the articles of BES were based on. Nolde has distinguished between the authors used in Bunge's so-called original draft (C. F. Mühlenbruch, C. F. Glück, F. Mackeldey, K. A. D. Unterholzner, C. F. Koch, A. C. I. Schmid, K. A. Vangerow) 31 and those used in editing the draft, i.e., the "newer" pandect textbooks (C. F. F. Sintenis, L. Arndts, J. Weiske 32 ). Unfortunately, he has not explained his principles of selection; he has only noted that Bunge himself provided almost no references at all. Although Nolde claims that wherever an article of the BES originated from the works of different authors, he specified all of them, this does not always seem to be the case. However, he has expressly omitted only those articles which were not Roman law and those whose author he was unable to identify33. If we look which articles he has actually not included on the list, I believe there are more of them. I cannot say on which basis the remaining articles were omitted. In the chapters viewed in this paper, he referred to two works: C. F. Mühlenbruch's Lehrbuch des Pandektenrechts 34 and C. F. Glück's Ausführliche Erläuterung der Pandecten nach Hellfeld35. This is why I have also compared the sections of the BES with those. My choice and Nolde's were similar to some extent, but I have also considered other works which Nolde did not regard, but which seemed important to me.
Firstly, I analysed thoroughly the first chapter of the first title, "Corporeal and non-corporeal, movable and immovable things" of the second book of the BES (property law). It contains 10 articles, nine of...