Freedom via Acquired Profession? On the Possibility of Being a Jurist in an Estate Society
| Author | Marju Luts |
| Position | Lecturer of History of Law |
| Pages | 200-207 |
Page 200
The transfer of the principal and universal freedom of an individual to act as a constituent basis of society can be considered the greatest achievement of the French Revolution and the modern era succeeding it. Among else, such universally recognised freedom that is basically owned by each individual comprises the right to educational and professional self-determination. The jurist profession is one of those professions in the Western World that had, to a greater or lesser extent, run in parallel with general structural changes in society. Thus, it is not surprising that its modernisation may be expressed almost as a slogan "From estate to profession or something" of the kind1.
At first glance, this seems to have been a relatively straightforward process at the end of which stands the present-day professional jurist. The jurist has acquired a special juridical knowledge through academic and theoretical education in university. The preparation of the jurist has been institutionalised into university; frequently through the following practical training and also through the corresponding institutions the jurist, among else, acquires certain professional ethics. In addition to that, institutionalised theoretical and practical preparation enables the jurist to master unexpected and complicated dilemmatic situations independently. He or she has proved his or her aptitude for the jurist profession by passing a publicly accepted examination. He or she has to use his or her professional competence and appropriate knowledge for the welfare of the general public, rather than for his or her own benefit. The profession determines the contents of professional knowledge, competence and standards, as well as the patterns of behaviour of the professionals2.
At the same time, it is clear that the class of jurists characteristic of ancien regime on the one hand, and the class of jurists by social standing on the other hand did not "evolve" linearly into a professional class and free and equal jurisdiction3. The setbacks of and digressions from the general tendency of the jurist profession becoming increasingly professional may be detected both by time and by region. Generally, people speak of the first half of the 19th century as the period when the final evolution of the jurist profession took place and became influential4.
In the 19th century, the Baltic provinces (Est-, Livund Kurland)5 belonged to the Russian Empire. The Acts of surrender, concluded in 1710 between the local estates and towns on the one side and the central power of Russia on the other side, confirmed that the old European organisation of estate society remained in force in those provinces. Thus, this area proves to be a colourful example of whether and to what extent the modern class of professional jurists, immediately interconnected with the right to personal self- determination could dominate in a traditional legal order based on the class system.
In fact, at the beginning of the 19th century, one of the central prerequisites for the rise of the modern jurist pro-Page 201fession had been created in the Baltic provinces. Namely, the University of Tartu was reopened in 1802. After a period lasting almost a century, youth of the Baltic provinces had acquired a chance to study in a home university. Unlike the other universities in the Russian Empire, the German and Lutheran University of Tartu also comprised the Faculty of Theology and Law6. The purpose was, naturally, to train clergy and jurists for the local provinces. Consequently, the re-opening of the University provided the basis thanks to which representatives of any estate could study on the spot, to become jurists and start to earn a living aided by their professional knowledge. Together with modernising jurisprudence and the relevant education the Faculty of Law sought to fix its position as a single authority to judge the qualifications and appropriateness of future jurists. This gave rise to several tensions between the University and local estates, especially as both parties possessed judicial proof to their competence.
In 1710, in the course of the Great Northern War, the troops of Peter I took over both the provinces of Estland and Livland from Sweden. Legally, their merger with the Russian Empire, while Kurland was merged in 1795, was formalised with the so-called Acts of surrender7. In his proclamation (Universale) to the inhabitants of the provinces of Estland and Livland, Peter I ascertained that he as a monarch of Russia,
"nicht alleine ohne einige Innovation die im ganzen Lande und Städten bisherzu übliche Evangelische Religion, alle ihre alten Privilegien, Freiheiten, Rechte und Immunitäten, welche unter der Schwedischen Regierung zeithero weltkundig violiret worden, nach ihrem wahren Sinn und Verstand heilig zu conserviren und zu halten gesinnet sey, sondern auch gelobe dieselbigen mit noch ampleren und herrlicheren nach Gelegenheit zu vermehren"8.
Naturally, the provincials gladly accepted the Emperor's generous offer concerning the increase in privileges and the right to autonomy, especially as the centralisation attempts by the Swedish central government, carried by enlightenment absolutism, had sharply touched the interests of the local nobility. Now they were pleased to rush to write down their grandiose demands. The estates naturally felt that they possessed a historical right to do so. Even the Swedish government had, upon seizure of the Baltic provinces, assured that all the privileges and rights remained in force. The later attempts of the Swedish royal power to limit the privileges of the nobility appeared to the parties as infringement of the treaty. Thus, the Acts of surrender concluded with the Government of Russia came to include sections that could not be treated as "privileges, freedoms, rights and immunities" that were in force under the rule of the Swedish government.
One of such sections was about the structure and functioning of the legal system. On the one hand, it was assured that all the judicial instances that existed during the Swedish rule would remain in place. From this aspect, it really was "conservation" of the present situation. At the same time, clause 6 of the Acts of surrender of the Livland order set out that the courts may employ only
"Personen aus dem Adel des Landes oder dazu geschickte Eingeborene Deutscher Nation" and determined that "Der Adel und die Landeseingeborenen sollen ein Vorzugsrecht haben bei der Anstellung zu allen Civil- und Kriegsämtern" (clause 11).9
In the Acts of surrender of the Estonian order, the provision had been worded in an even more conservative manner,
"... in den oberen wie den niederen Gerichten keine andere Richter als die bestehenden angeordnet." 10
A captious person could interpret such wording as prescribing that after the death of the judges currently filling the positions their positions should be eliminated altogether as nobody else could be appointed as judge.
The Acts of surrender of the Livland order granted the local nobility the pre-emptive right to fill civil positions. However, the indigenous right was set out in a rather unambiguous manner. Besides the nobility, representatives of other estates could be appointed as judges; only on condition that they were local Germans and, in addition to that, "skilled for profession". Let it remain unspecified whether this quality meant legal training as it remained unspecified in the following historical development of the Baltic provinces.
In the middle of the 18th century, the so-called peer- age books were introduced to the Baltic provinces, and all manors were entered in the books. The owners of the manors who had not yet proved their noble descent had to do that. O. Schmidt claims that originally political merits and expansion of the nobility's rights bore no relation to the books11. Instead, it was intended that on the basis of the books the buildings of orders be decorated with the coats- of-arms of all the local noble families. Even in the diet of Livland (Landtag) in 1742 it was explicitly affirmed that the books to be drawn up would be merely a list of the local noble families. A new regulation adopted at the diet (Landtagsordnung), dated 1759, set out that participation in the diet is mandatory only for the matriculated nobility or the members of the order (Cap. II, § 4). Henceforth, only they possessed the active and passive vote in filling positions (Cap. VI, § 6)12. In fact, the restriction contradicted the Acts of surrender of 1710, but proved to be a determinant in the following history of the Baltic provinces.
The fact that the privileges of the nobility in filling positions were expanded in the 18th century was actually not exceptional. Rather, this was a general tendency in Europe that had now reached also the shores of the BalticPage 202Sea. In historical context, this phenomenon is called "an aristocratic reaction" and R.R. Palmer even considers it to be an over-European phenomenon13. The nobility and its elite acquired a...
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