On the 6th of October 2015, I presented the results of my research about the use of Estonian terms in my PhD Dissertation at the National Library of Estonia, during the X oskuskeelepäev [Xth Day of Language for Professional Use], organized by the Estonian Librarians Association, Estonian Ministry of Education and Researchers under „Eestikeelse terminoloogia programm (2013–2017)“ [Programme ‘Estonian-language Terminology (2013–2017)’].
My first words of gratitude went to the University of Tartu Foundation and the scholarship commission of the University of Tartu Estonian language terminology programme, first, because they elected me as a holder of the Estonian language terminology programme scholarship 2015, and second, because I was invited to give my presentation during the Xth Day of Language for Professional Use. Follows the translation from Estonian to English of the text of my presentation.
My scientific work so far, included work with terms, has taken place within certain historical-political context, that can be characterized by shifts of paradigm following the regain of the Estonian independence:
– transition from the Soviet legal system to the Estonian laws, and
– adaptation to European law.
These shifts of paradigm are also reflected by language, for example, the Estonian word „haldus“ [governance] was meanwhile replaced by the Russian word „administrative,“ but today we use again the word „haldus.“
The word „haldus“ has been explained in the spelling dictionary (ÕS) at online Keelevara as follows: „riigiorganite täitev ja korraldav tegevus, valitsemine, haldamine; haldav võim. Kuulub linnavalitsuse haldusse, on halduses. Riigi+, kohtu+haldus. Dokumendi+, kinnisvara+haldus“ [sth. like: executive and organizing action bt State organs, governance, administration; administrative power. Belongs under administartation of city government, is under governance. State+, judicial+administration. Documentary+, real estate+administration.]
This determination seems to be strongly connected with State. That way, the determination (or definition) used in the ÕS seems to also mean that the EU and global governance are State-like units, what they actually are, although the definers might not have been aware of that.
But, talking about terms, in my terminology work, I have experienced situations, where – although the professional language is more exact than general language – some important political or strategic aspects may sometimes have been neglected in the use of terms, or a term may be used as a professional word but rather automatically and in a wrong context, which demonstrates that the user of the term has not fully defined for him-/herself the content of the term.
My Dissertation`s former superviser was a historian. By today, my superviser has been changed.
But during one consultation, he made me think with saying only one substantial word – „continuity.“
Actually, I have been acquainted with problems connected with linguistic self-expression since kindergarten, where I was prepared for the English-biased Miina Härma Gymnasium in Tartu. In the years of 1987-1999, I studied in the Institute of Theology of the Estonian Evangelical Lutheran Church, and for one year also in the Faculty of Theology of the University of Tartu, when I, for example, read the book: Uku Masing. 2004. Keelest ja meelest. Taevapõdra rahvaste meelest ehk juttu boreaalsest hoiakust [On language and mind. Heaven reindeer peoples living in the boreal attitude.] Tartu: Ilmamaa. – A book about consciousness, language and identity. (A very deep discussion.)
In the year of 2008, already as a PhD Student in the Faculty of Law of the University of Tartu, I compiled the: Estonian Lawyers’ Days 1922-1940. Minutes. Tallinn: Juura. While it was possible to conclude from the development of the Estonian legal language reflected in the Minutes that a language may return to „the roots“ while seeking more effective forms – a phenomenon that I analysed mostly based on the book: Aime Vettik, Rein Kull. 2002. Tagasivaade eesti õigussõnavara kujunemisloole (1920-1940) [Retrospect to the history of the Estonian legal vocabulary (1920-1940)], it was also possible to conclude that already by that period, the Estonian legal vocabulary had developed to the extent that it is well understandable also today without amendments, which demonstrates continuity in matching together historical developments.
My PhD Dissertation has two versions now:
first: „Individual legal remedies for breach of European Union law,“ and
second: „The Limits of Review of the Legality of EU Acts – the possible consequences of the Actions of Annulment and Failure to Act in the EU legal remedies system.“
The both versions are connected with protection of individual rights in the cases, where a EU or State institution, other body, office or agency infringes EU law with its act or inaction, for example, where as a consequence of a breach of EU law one private person causes damage to another private person.
The problems connected with terminology work in the Dissertation began already with defining the research object – Legal Remedy.
One can understand Legal Remedy as:
– a professional concept or professional determination;
– a definition or description of a concept;
– a term or professional word.
In the English language, the word „remedy,“ according to the Oxford English Dictionary, means:
A) As a Noun:
a. A cure for a disease or other disorder of body or mind; any medicine or treatment which alleviates pain and promotes restoration to health;
b. transf. or fig. in various senses;
c. by remedy of, by the help or means of;
a. A means of counteracting or removing an outward evil of any kind; reparation, redress, relief;
b. there is no remedy (= way out of it, help for it, alternative) but, etc.;
c. no remedy, unavoidably;
d. what remedy? what help for it?;
Coining. The small margin within which coins as minted are allowed to vary from the standard fineness and weight. (Cf. REMEDE n. b.) Also called tolerance. Also attrib;
At various schools (as at St. Paul’s and Winchester): A time specially granted for recreation; a half-holiday;
B) As a Verb:
a. To grant (one) legal remedy; to right (one) in respect of a wrong suffered;
b. To bring remedy to (a person, diseased part, etc.); to heal, cure, make whole again. (Now rare);
To cure (a disease, etc.); to put right, reform (a state of things); to rectify, make good;
To provide a remedy. Const. for, of.
Translation into Estonian of the word „remedy“ in European human rights texts:
In Article 13 of the European Convention on Human Rights:
- „Right to an effective r e m e d y
Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective r e m e d y before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.“
- „Õigus tõhusale õ i g u s k a i t s e v a h e n d i l e
Igaühel, kelle konventsioonis sätestatud õigusi ja vabadusi on rikutud, on õigus tõhusale õ i g u s k a i t s e v a h e n d i l e riigivõimude ees ka siis, kui rikkumise pani toime ametiisik.“
/The Estonian translation is not the authentic text of the Convention./
In Article 47 of the Charter of Fundamental Rights of the European Union:
- „Right to an effective r e m e d y and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective r e m e d y before a tribunal in compliance with the conditions laid down in this Article. […]“
- „Õigus tõhusale õ i g u s k a i t s e v a h e n d i l e ja õiglasele kohtulikule arutamisele
Igaühel, kelle liidu õigusega tagatud õigusi või vabadusi rikutakse, on selles artiklis kehtestatud tingimuste kohaselt õigus tõhusale õ i g u s k a i t s e v a h e n d i l e kohtus. […]“
/Although EU law forms part of Member States` legal systems with its direct effect, there appears an explanation in the beginning of the OJ translations, that the EU is not responsible for the possible misunderstandings in the translated texts./
When I began with the research about how „Legal Remedy“ has been understood in the Estonian history – and I came on that idea because in the years of 1993-1994 I happened to work in an State Institution, and was sent to the same National Library for searching and copying the prison rules that were valid during the Estonian independence period 1918-1940, so that my employer and the Estonian Ministry of Justice could build on those texts the new prison laws, because such continuity (as far as possible in a technically and scientifically developing society) was a political decision.
Artur-Tõeleid Kliimann, recognized as classic of the Estonian administrative law, understands legal remedy as a means of contest.
When I began with analysis of the Estonian professional language, I researched in 2006-2008 the use of the word „legal remedy“ in most of the available works of the Estonian that-time jurists – scientific literature, legal acts, case law.
It has to be mentioned that I began with my studies in the Faculty of Law of the University of Tartu in the year of 1996 – at the time when Estonia`s regained independence had lasted for only five years and transition from the Soviet legal system to European law was an ongoing process, or Estonian own laws were being worked out. This meant shift of paradigm that now also the language had to reflect, but such processes demand time.
My conclusion was that the Estonian jurists understand legal remedy by its broad and narrow meanings. The broad understanding lacks systematicity and one can meet very many different and even opposing opinions here.
Whereas the narrow meaning corresponds to the last understandings in scientific literature of other European States. For example: „In selecting a remedy for breach of contractual obligation, the aggrieved party has a view to certain objectives that it wishes to attain by making the claim …“. (Kull. 1999. „Legal Remedies Provided in the Estonian Draft Law of Obligations Act for Breach of Contractual Obligations“ 4 Juridica International, pp. 147-159.) Such definition corresponds to the followingly introduced definition because legal remedy is considered not to be the claim itself but something that the claimant wishes to attain by making the claim.
For example, in a PhD Dissertation submitted for defence in the University of Oxford in 2003, remedy is defined as tertiary right arising from a prescription in a decision, which definition is connected with legal remedies. For example, X ańd Y contract over a purchase of land – X contracts to buy land from Y but Y does not convey the land. Here the remedy is the conveyance of land, which is effected by specific performance.
Schematically, such could be described as follows:
Tab. 1. Source: Zakrzewski, R. 2005. Remedies Reclassified. Oxford: Oxford University Press, p. 53, with J. Erne`s modifications.
|Primary rights||Secondary rights||Tertiary rights|
|Law, other source of law||Is presented when a legal condition fulfills||Prescription by a judicial or extra-judicial body in an order based on law.|
Prior to such understanding, legal remedies have been understood also in other European States very differently – from action and substantive right to a court order, as a means of redress, action, cause of action, primary or secondary substantive right, as a court order, means of enforcing a court order, right arising from a court order.
Substantive rights have been understood as remedy, because substantive rights link infringement and grievance. In the book: R. Zakrzewski. Remedies reclassified, substantive rights are understood as existing before the commencement of legal proceedings and the making of a decision by the body conducting proceedings, despite of the latter, embracing both primary rights (as, for example, contractual right to payment) and secondary rights (as, for example, right to the payment of damages arising out of the breach of the contract). This means that in legal literature, both primary and secondary substantive rights have been named remedies. Secondary substantive rights arise from breach of a primary norm, the distincting line of delimitation being the breach of the norm. For example, the right for damages arises out of the primary obligation to fulfill the contract. Primary rights exist despite of their breach. For example, the right to the payment of an agreed sum and the right to the return of a mistaken payment.
The scope of secondary rights is not always clear. It can first embrace the right for damages, but it can also embrace the right to a court order, such as a right to an order for compensation, thirdly, it has also been understood as a right that arises out of the court order. The distinction between primary and secondary rights comes from the origin of the rights.
Zakrzewski is of opinion that secondary rights can only mean the rights that follow from breach of the primary rights, or, more broadly, the legal relation arising out of the legal relationship, but not the right arising out of the court order.
Zakrzewski is of opinion that primary rights cannot be named remedies even in the case the primary rights constitute the rights for damages as rights arising directly out of the law or contract, because they do not arise out of the breach of law or contract but independently of the existence of the latter.
For example, a contract of insurance gives certain rights to the policyholder. Such primary rights are also frequently called remedies. Among such rights are also considered the rights arisen of other events, which do not involve a breach of a duty, such as unjust enrichment, in which case the recipient of a mistaken payment does not commit a wrong, yet the restitutionary right which arises against him can nonetheless be seen as providing relief from the payer`s grievance and is therefore capable of being called a remedy.
The distinction between secondary rights and remedies is, thus, blurred, and the distincting line could be the court order.
Answer to the question, whether a right preedes or follows a remedy, could, for example, be the following: when a local government mistakenly pays a sum to a bank, it would be possible that the local government receives the money from the bank only through the court prescription, not directly by law, i.e. that the bank may fail in receiving the money without a court order, the right given within the court order.
Answer to the question, whether there could exist remedies without substantive rights – An affirmative answer would render the maxim: ubi remedium ibi ius invalid. Parallelly, this is also a question of a court`s discretion but, again, the affirmative answer would mean that the court could create a new remedy using its discretion, which the courts cannot do.
The courts, nevertheless, can change the remedy asked by the parties to the case or prescribed by law, for example, the court can reduce the amount of the claimed sum or apply the principle of analogy in civil cases. In administrative and criminal proceedings, the body conducting procedings is more strictly bound by law. That way, a remedy either repeats substantial rights or changes those (but since it is still bound by law also in the latter case, I would not say that declaratory remedies are not legal remedies?).
If one does not want to call legal rights remedies – which would simply mean repeating the same thing – then there would arise problems related with some differences between the legal rights and the prescribed remedies, which differences would not allow an exhaustive classification of remedies de lege lata.
Also Christoph G. Paulus addresses the substantial problem connected with the question to which extent the legal reality must, may or ought to differ from written rights, because the person applying law can use his / her discretion only within the law, i.e. is constrained to the prescribed choice. Despite of that a court description may give a different right of what was claimed or prescribed by law.
But understanding legal remedies as prescriptions by law would mean – as in that case legal remedies would be derived from substantial rights (sest protsessuaalse eseme saaks tuletada materiaalõigusest) – legal remedies would correspond to substantial rights. Such understanding would neglect the discretion of the court or margin of appreciation.
Such was an introduction to set of problems concerning defining (legal) remedies in other European States` universities but sometimes the discussion is blurred with mixing substantial rights and procedural norms.
Some other problems that I have met in my terminology work in addition to defining legal remedies:
– constant changes in the EU strategies and aquis;
– use of synonyms (e.g. -multi-speed Europe -variable geometry; or: -principal agent`s theory –agency –delegation –conferral –attribution; or: -conferral of powers –delegation of powers –delegation of competence; etc.);
– constant changes in translation that are partly connected with changing understandings of the EU, though partly with inconsistencies in terminology work (for example Estonian versions of a word: -teistmine –teistimine; also: -interim measures -interim protection –provisional measures –restraining measures; in Estonian: -esialgne õiguskaitse -hagi tagamine -ennetava iseloomuga abinõud);
– terminology problems connected with shifts from one societal regime to another (for example in Estonian: -partei –erakond;
Finally, I thought of reminding the vision of the Estonian Statesman and jurist Jüri Jaakson (1870-1942) of the development of the Estonian legal consciousness (related with terminology work).
Jüri Jaakson demonstrates how the following developments have influenced historical formations of 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 Livonian Ritter- 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.
Against such background, 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 – this is not an official translation).
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.
Political systems are changing in such a speed that it is difficult to fully define all terms (professional words). On the other hand, a scientific / professional language must develop.
The text of this presentation was greatly formulated already in the years of 2008-2010, and hopefully many problems have by today found their solution!