Nordic Journal of International Law No. 4, 2010 has published Jaanika Erne’s article: “Political and Legal Problems Related to Estonian Private Law Reforms Prior to the Formal Statehood Period and during the Early Formal Statehood Period”, pp. 543.562.
What is the article about? – The article is about some problems related to harmonization of Estonian private law prior to the formal statehood period, and during the early formal statehood period. With regard to Estonian private law developments prior to the formal statehood period it is concluded that such developments are closely connected to a nation’s legal consciousness and identity. The Estonian private law developments during the early formal statehood period are characterized through the Panevezys-Saldutiskis Railway case that was brought before the Permanent Court of International Justice by the Estonian State against the Lithuanian State in 1937, the facts of which date back to a legally controversial era after the October Revolution that brought principal changes to Russian private law on what law essentially Estonian private law depended on. Both periods demonstrate that changes to private law are not only technical, but closely related to a variety of categories beginning with inner sense of morality and ending up with principles of international law.
With regard to Estonian private law developments prior to formal statehood has been concluded that such developments have an important place in the formation of a nation’s legal consciousness and that the “motley” political history and the consequent variety of legal regimes and private law regulations, and inconsistencies in those regulations, resulting in the variety of fragments and unclarities, do not only characterize the problems faced by the Estonian private individuals, but individuals of all European states. On the one hand, legal – including private law – reforms are indispensable responses to technical, scientific and other developments, such as trade, requiring reception or harmonization of certain areas of law at certain periods in all states. In addition, globalization is characterized as mergers of cultural and historical peculiarities, for example, as mergers of different religious beliefs. On the other (socio-legal) hand, a nation (that mostly consists of non-lawyers) becomes during a certain period used to detailed regulations of property law, family law, law of obligation and other private law institutes. Such a nation conforms to those details and also becomes used to behave in accordance with those details. In that way, a state’s practices become rooted and connected to a nation’s identity. Consequently, as private law is initially connected with a concrete nation and a concrete time, parallel to facilitating trade and cultural development, private law reforms change the well-established legal practices and legal culture that has been rooted and connected to a nation’s identity. Hence, private law reforms bring changes to the well-established legal practices and legal culture, and they cause problems for individuals due to unclarity and absence of established practice. As individuals get used to new civil laws and learn to behave and expect behaviour according to those new laws during a certain length of time, changes to the rooted behavioural models require time to be accepted and that time of change may provide insecurity, and there exists a danger that if the citizens refuse to accept civil law norms, one cannot talk of a rule of law-based state any more. In addition, civil laws strongly influence a citizen’s inner sense of morality and justice and consequently it is possible that even after having been modified or nullified during the periods of societal and state transformations, they frequently continue to be carried on in people’s minds and behaviour.
Estonian private law developments during the early formal statehood period are well reflected by the Panevezys-Saldutiskis Railway case, the facts of which case date back to a very interesting and legally controversial era – the period after the October Revolution in Russia – that brought vast principal changes to Russian private law (on which law the Estonian private law essentially depended). The births of the three Baltic States remain close to that October Revolution period, where the consequent treaties and acts inter alia already contained new private law norms that due to the revolutionary changes taking place in Russia could no longer be based on the “old” Russian law. An important area in the Panevezys-Saldutiskis Railway case relates the interpretation of private law norms in the light of the principles of international law – nationality of claims, and exhaustion of local remedies.
The article allows broad conclusions that changes to private law are both technical, but as closely related to individuals’ conscience and daily life, they are also growing out of the nation, and should be recognized by the nation – and that should be borne in mind during private law reform periods. In addition it should be borne in mind that in addition to general principles of law, private law developments are influenced by general principles of international law.
Keywords: private law reforms; legal consciousness; identity of a nation; nationality of claims; exhaustion of local remedies