Safeguarding Municipal Autonomy by the Supreme Court

• Author: Wolfgang Drechsler
• Position: Professor, Head of the Chair of Governance Tallinn University of Technology, Estonia
• Pages: 111-115

Wolfgang Drechsler

Professor, Head of the Chair of Governance Tallinn University of Technology, Estonia

Safeguarding Municipal Autonomy by the Supreme Court

The title of this article implies that the supreme court of a state, and that of Estonia in particular, plays a role, and perhaps a central one, in safeguarding municipal autonomy. Potentially, this is indeed the case, but is it factually so? The central normative-theoretical question behind this is, of course, that of the position of the autonomous municipality vis-à-vis the nation-state, for which the supreme court, systemically part of the latter, has - arguably - a particular responsibility. But the question that logically precedes this is whether the relevant state's constitution properly and sufficiently guarantees municipal autonomy to begin with.

I

The need for municipal autonomy is brought out nicely as early as 1834, in Georg von Brevern's thesis, Das Verhältnis der Staatsverwaltungsbeamten im Staate ¹ , arguably the most important early Estonian contribution to the topic. The author, a Baltic-German nobleman, who later held high positions at the Tsarist court and in the St. Petersburg administration, for political reasons stays very vague in indicating when he is dealing with local matters and when with general ones. Nonetheless, arguing as he does for an organic ² , citizen-centred image of the state ³ - in his context, a rather brave stance - he points out that the municipality comes into existence before or, at best, together with the state, so municipalities derive not from the state but, rather, like the state itself, "from the natural development of human society"⁴. In Estonia , obviously, municipal autonomy is much older than the nation-state (rather young in its current form); the great city of Tallinn , then called Reval, could boast Lübeckian Law, and thus a high degree of municipal autonomy, since 15 May 1248 , when the King of Denmark, Erik IV Plogpennig, conveyed it to her⁵. But already in noticing this, we find that an important issue presents itself - Tallinn was not a city of the Estonians, nor was it to be so until many centuries later, and it has had Estonian domination of the citizenry for perhaps 150 of the last 750 years⁶.

In the spirit of subsidiarity, the state's task, according to v. Brevern, is the co-ordination and to some extent control of the municipalities and the management of those affairs that the municipalities cannot cope with themselves because they are missing the larger national perspective⁷. As is usual in this kind of literature, v. Brevern does not deny the necessity of central administration, he only resents its excess⁸. The state is based on municipalities but subordinates them⁹. In essence, this is the approach that most municipal autonomy scholars would still agree with today.

This, precisely, is also already the perspective of the most important European establishment of municipal autonomy, one that is of direct importance for Estonia and the Estonian Constitution, which is based on it: Heinrich Friedrich Karl vom und zum Stein's Prussian municipal reforms of 1808, whose bicentennial will be celebrated next year (Stein's own 250^th birthday is this year). These reforms, too, were clarifying in scope, simplifying municipal administration and certainly not interfering with legitimate central administration¹⁰. The impetus for the reforms was motivation of the citizens such that they would take care of their own business ¹¹ and thus see the city and also the state again, or newly, as 'us' and not as 'them'¹². This was based on vom Stein's insight into the "necessity to give to the cities a more autonomous and better constitution, to legally form for the citizens' community a firm place of unification, to convey to them an active influence on the administration of the municipality, and to create and maintain community spirit through this participation"¹³. This is the role of the municipality as the cradle or school of democracy¹⁴.

Initially, this was not appreciated by the beneficiaries, both citizens and (potential) politicians and administrators, and it needed some 20-25 years to work at all, which is an important lesson for all municipal reforms that argue the inability and/or unwillingness of the locals to commit themselves and participate¹⁵. In fact, as recent research once again has underscored, indeed it did work - the option of commitment preceded actual commitment¹⁶. This is actually the model that goes beyond the concept of civil society and of governance without supplanting it, in that it re-includes the citizen directly into government and the policy process¹⁷. In a time of political alienation, this is an aspect well worth remembering.

But if this is so, why is municipal autonomy in constant danger, always under threat? Why does it need a supreme court to protect it? In order to answer this, we have to face the central question of the matter: Why does the state exist at all? Only then can we judge the municipalities' role in context. If we believe with Aristotle that "a state comes into existence for the purpose of ensuring survival, and it continues to exist for the purpose of the good life" ¹⁸ and continue with Marsilius of Padua that the good life "is the perfect final cause of the state" ¹⁹ , then there is no question of the importance of the municipality - and this is also the role of the municipality itself. This is especially crucial in a time of globalisation, when the municipality becomes the citizens' genuine home; it is also the municipality in which the citizen meets the state in everyday life²⁰. Its working or not working conditions the citizen's attitude toward the state to a decisive extent. And so, especially in multicultural times, in that of the EU and the possibility of moving, there are plenty who identify with a city but not with the country²¹. This is the old idea that one could even say that countries, that nation-states are constructed ²² - while cities are 'real'.

Yet precisely this is a problem from the state perspective, where not all of this may be appreciated and indeed, systemically, it would not be. Especially if the state exists for the nation and the nation is more important than the citizens and their well-being, the autonomous municipality may appear as an obstacle, a problem, and nothing else. This is all the more urgent a consideration if the state is seen as under constant threat or attack, so that the political is always existential²³. And such a state is, after all, far from being just a theoretical construct. However, we may think back to vom Stein and his insight that the autonomous municipality, far from endangering it, strengthens the nation-state - the democratic nation-state, of course, not the authoritarian one²⁴. The Estonian Constitution can be said to combine the two approaches, in that its preamble arguably connects them to each other in an additive way ("to strengthen and develop the state which [...] shall protect internal and external peace, and is a pledge to present and future generations for their social progress and welfare; which shall guarantee the preservation of the Estonian nation and its culture throughout the ages" - since 21 July 2007 (RT I 2007, 33, 210), "Estonian nation, language and culture")²⁵.

The Estonian Constitution places municipalities on the same level as the German ones - this is no accident, as the respective paragraphs are based on the German ones, but in a weaker form ²⁶ . This is very likely no accident either, arguably for three classic reasons: Too much municipal autonomy may give a power base to the opposition party or parties, which is a good thing in a democracy but not really appreciated by the majority in the government²⁷. It may do...