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The Common Frame of Reference and Consciousness?

It is Sunday today – traditionally a day for reflection and Family, and I thought I should put up my Granny’s picture.  

Private Collection

Private Collection

Agnes Tomson, born Kösta in 1905, died in 2003 (the year I graduated from the LL.M. Programme at the University of Helsinki), she lived her whole life at countryside in Central Estonia. Having lost her husband in the World War II, she alone brought up her daughter (my mother) and son.

 

 

 

 

Another excerpt from my article, “Private Law Consciousness of the Estonian Nation in the Pre-Statehood and Early Post-Statehood Periods. Some Legal Problems Related to Transformation of Societies and Law Reforms”,

 

“A phrase used by Jüri Jaakson (famous Estonian lawyer and politician 1870-1942) with the aim to describe the political history of Estonia, could be translated „highly motley“, because the Estonian territory has been governed by many foreign countries that have influenced the development of Estonian law. The following is a summary of Jaakson’s description of historical influences on Estonian law:

 

In the 12th Century, Germans transformed to the today’s Estonian territory German legal concepts that were applied differently in the Estonian towns and countryside. The that time towns were politically independent, having their own governments, whereas the Estonian rural areas were governed from one side by the Livonian Order and bishops, and from the other side by the vassals who had received their land from the Order and bishops. The that time Tallinn – a town that had great influence on other Estonian towns, belonged to the Hanseatic League and had borrowed its laws from Lübeck, whereas the Estonian countryside applied LivoniaRitter- und Landrecht. Thus, it is claimed that already in the 13th Century, there were two completely independent legal systems in Estonia – one system in towns and the other in the countryside.

 

In about 1561, the Baltic provinces lost their independence. Since the Estonian areas lacked their own legislative power, the laws for those areas were adopted by the legislative powers of the governing states who as a rule were not aware of Estonian laws. Consequently, every new law taken on the Estonian territory carried in it the influence of the governing state. For a short period, Estonia was governed by Poland and its laws were influenced by Polish law. Longer and more significant was later the influence of Swedish law especially in the Estonian rural areas. Also Russian law had great influence on Estonian laws, although that law did not have much influence on Estonian civil law. Jaakson considers Roman law very important for the development of Estonian civil law. In the 16th and 17th Centuries, Roman law was transformed into Estonian laws through Germany and the way it had been transformed into German law, with emphasis on those areas of law that were not covered with local regulations – i.e. real right and law of obligation.

 

Therefore, at the very pre-statehood period, Jaakson distinguishes two mainstreams in Estonian civil law – German law and Roman law: the impact of German law mostly in family law, the impact of both Roman and German law in the right of succession, and the impact of Roman law in the real right and especially in the law of obligation. Jaakson has established the impact of Swedish and Russian law only in rare legal institutes.

 

Reinhold von Samson-Himmelstierna, Estonian lawyer and Livonian District Magistrate, composed three draft laws on basis of Estonian law – the Baltic Institutions, the Baltic Classes and the Baltic Civil Law, the first two of which drafts were at 1845 confirmed by Emperor Nicholas, but the third of which drafts remained unconfirmed.

 

In 1856, Friedrich Georg von Bunge, a former professor of the University of Tartu, was proposed to finish the Samson’s work on Baltic civil law codification and to compose the new draft Baltic Civil Code. According to Jaakson, professor A. Nolde had later established that a great amount of Baltic civil law had been copied by Bunge from the Mühlenbruch’s, Glück’s, Mackeldey’s, Unterholzner’s and other authors’ Roman law textbooks, with the aim to avoid useless changes to the legal terms and constructions of those authoritative at that time textbooks. In addition, Bunge used textbooks on German and Baltic law, the Prussian 1794 Allgemeines Landrecht, the Austrian 1811 Civil Code and the published in 1860 Saxon draft Civil Code. The reviewers from the Baltic towns of Bunge’s draft prescribed that codification of rights should be accurate. The draft that was composed by Bunge in the German language was later translated into the Russian language by academician Bõtschkov and announced by the Emperor’s Directive from 12 November 1864. The new law entered into force on 1 July 1865 (based on J. Jaakson, „Referaat. Meie tsiviilõiguste puudustest ja nende puuduste kõrvaldamisest. Esimene Õigusteadlaste päev Tartus 19. ja 20. aprillil 1922.a.“, [Protokollid] // Õigus, (1922-7), 193–208) (Speech held during the Ist Estonian Lawyers’ Days – not translated officially).

 

From the previous one can see that the new eras, governments and harmonizers have added new regulations to Estonian laws, resulting in the variety of fragments and incoherence in those laws, since the roots of those regulations lie in different legal systems. Due to such differences, harmonization of law has not been an easy task”.

 

What is the aim of such article? It analyses the impact of different (incl. external) factors on a nation’s consciousness, and concludes that at the periods of private law reforms should be taken into account that the average people who mostly are non-lawyers, must be able to become adapted to new laws.

 

Why is it so? Because during a certain period a nation becomes used to detailed regulations of for instance the real right, family law, law of obligation and other private law institutes. A nation becomes used to behave in accordance with those detailed regulations. That way, a state’s practices get rooted and connected to a nation’s identity. Consequently, private law reforms change the well-established legal practices and legal culture that has been rooted and connected to a nation’s identity (inner sense of morality and understanding of justice). For that reason is possible that even after having been modified or nullified during the periods of societal and state transformations, old laws frequently continue to be carried on in people’s minds and behaviour.

 

Jüri Uluots (famous Estonian lawyer and politician 1890-1945) has even warned that the time during which a nation becomes ready to accept changes to the rooted behavioural models may provide insecurity, and that there even exists a danger that if the citizens refuse to accept civil law norms, one cannot talk of rule of law based state any more (J. Uluots, „Tsiviilseadustiku eelkava alusmõtteist. Kokkuvõte referaadist“ in IX Õigusteadlaste Päeva protokollid, 1930, „Õiguse“ erilisa (Tartu: Õigus 1930) (Speech held during the IXth Estonian Lawyers’ Days – not translated officially).



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