“Society was torn back and forth between modern and conservative tendencies”
Interview with Hesi Siimets-Gross on how private law developed in Estonia during the interwar period
The modern era is considered the age of legal standardisation. Not only were the emerging nation states the result of political processes of unification; they also sought to achieve legal harmony within their borders. Legal historian Hesi Siimets-Gross shows that this master narrative should be adapted when it comes to individual cases. She examines how private law developed in the Republic of Estonia, which became independent for the first time in 1920. This saw the implementation of a 19th-century codification shaped by the estates system. In the interview, she talks about the upheavals and ingrained tendencies of that time.
Dr Siimets-Gross, your research project explores the standardisation of private law in Estonia between 1918 and 1939. Could you describe in a few sentences the political and legal circumstances of this period?
The territory of today’s Estonian Republic belonged to the Russian Empire from the 18th century and was divided into two governorates, Estonia and Livonia. After the First World War, the October Revolution of 1917 and the seizure of power by the Bolsheviks, the Estonian people saw the opportunity to free themselves from the Russian Empire, and Estonian independence was declared on 23/24 February 1918. The Estonian War of Independence began as first the German and then the Russian army invaded, this war ending with the Peace of Tartu on 2 February 1920.
Convened as early as 1919, the Estonian Constituent Assembly was tasked with drawing up the legal framework for the new state. As a stop-gap solution, it implemented those hitherto valid laws that did not conflict with any Estonian (pre-)constitutional regulations. Thus, in 1920, the “Liv-, Esth- und Curländische Privatrecht“ (Liv, Estonian and Curonian Private Law, LECP) came into force for (almost) all Estonian citizens, with the Russian laws still applying alongside.
The LECP dates back to 1864. What distinguishes this legal text?
The LECP was a code of law for three Baltic governorates of the Russian Empire: Livonia, Estonia and Courland. Although the Empire consisted of different territories with different legal systems, the work of codification was performed centrally. The original intention was merely to consolidate the existing law, i.e. to compile it and not (as was customary at the time) to standardise it. Hence, the references to sources were intended to prove the origin of each article’s content. Such references were and are in fact unusual in a code of law, but were common practice in the Russian Empire. The author of the LECP, Friedrich Georg von Bunge (1802-1897), was especially strict in this work of consolidation: he codified all the regional idiosyncrasies of the various municipal and land laws, as well as all the national laws. These were all linked by the so-called glue of Roman law. This was also in force at the time, albeit only on a subsidiary level.
Initially, the LECP only applied to around 5% of the population: to nobles, townspeople, Protestant clergy and so-called literati (this included liberal professions such as lawyers, university professors and tutors), who were mostly Germans or Baltic Germans – but, in a few cases, also Russians or Swedes. However, it did not apply to the Estonian and Latvian population of the governorates (approximately 95%).
The LECP was therefore a very special and peculiar phenomenon in the 19th century, and differed greatly from other private codes of law of that time and today: it remained rooted in pre-modern principles shaped by the estates system and, despite the desire for consolidation, contained many territorial idiosyncrasies and deviations.
Despite the contemporary term “codification”, does the LECP therefore stand for legal pluralism rather than legal unity?
Exactly. Codification is generally understood to mean “the comprehensive and conclusive regulation of an entire area of law by means of a law” (Oestmann) that is enacted by a ruler and that leads to legal unity within its area of application. Although the LECP was indeed enacted by a ruler (namely, the Russian tsar), what it contained remained very fragmented. To cite just one example from the law governing wills: according to Estonian municipal law and Courland law, witnesses to a will were to be formal witnesses – their presence was absolutely necessary to make the conclusion of the will valid. In addition to this requirement, though, the codification also incorporated the Estonian and Livonian tradition of land law, which says that witnesses to a will are only witnesses of evidence, and that a written will remains valid even if there were no witnesses when it was written. According to the code of law, both regulations now applied side by side in the Baltic governorates of the Russian Empire.
"Although the LECP was indeed enacted by a ruler, what it contained remained very fragmented"
So why was a code dating back to the previous century and only applying to a minority introduced for the entire population of the new Estonian Republic in 1920? And what impact did this have on society?
Even the statesmen of the time realised that the LECP was outdated. Nevertheless, a provisional solution was needed and the arguments were of a practical nature: the peasant regulations that had previously applied to the Estonian and Latvian rural population were not designed for the variety of situations in a modern society. The LECP had already applied to them on a subsidiary basis and was, so people said at the time, therefore well known. An additional argument for introducing the LECP was that the relevant legal literature and judicial practice of interpretation were already available and well known. The Constituent Assembly had already considered drafting a new civil code in 1919. However, as is so often the case, the provisional solution remained in force much longer than expected. Surprisingly, language barriers had little impact on the implementation and validity of the LECP – it was written in German and had an official Russian translation. What was never published, however, was an official or complete, non-official Estonian translation of the code.
Throughout the interwar period, society was torn back and forth between modern and conservative tendencies, and had to come to terms with the reality of legal pluralism – as it had in fact already done. This is particularly evident in family law, where marriage law was drafted separately from the civil code and was very modern. The drafting of the civil code moved back in a more conservative direction. As for the social impact of the LECP, this has not yet been analysed fully.
"The biographical dimension makes legal historiography more personal"
You also deal with the person of Jüri Uluots (1890-1945), who was Prime Minister of the Republic of Estonia from 1939 until his death. What role does Uluots play in your project and where do you see the particular benefits of biographical work for legal historiography?
Jüri Uluots was involved in many areas of legislation, including the drafting of civil law. He was one of the main figures during the long process of drafting the civil code, for example writing the motives for the draft civil code and thus the person who publicly “lent his face” to the draft. However, he was not involved in the entire drafting process and at times turned his attention to other commitments, meaning that the extent of his involvement is still unclear. Behind every social and legal development, including laws, there are people who drive them forward and make them real, and this is especially true for a country as small as Estonia. So I hope that I or our small working group researching Uluots and his achievements will be able to establish exactly what his contribution was. In the beginning, he actually spoke out against the drafting of a new civil code because the time was not yet ripe for it. He felt that one should not start with codification, but with amendments to the law or new sub-laws, as had been done with marriage law. The biographical dimension makes legal historiography more personal, but in my opinion clearer, too.
Besides your research, you work at the EU’s Court of Justice as a legal and linguistic expert. How did you get this job and what are your main tasks there?
I have always been fascinated by different languages and I spent a year studying in Germany during my studies. I was then offered translation work and, when Estonia joined the European Union in 2004, the European Court of Justice (ECJ) urgently needed people with legal training and language skills. I had originally intended to work as a freelance legal and linguistic expert, but I was invited to work on site in Luxembourg. Since 2012, I have been a permanent employee at the European Court of Justice, which is the EU institution where day-to-day work is carried out in all EU languages and multilingualism is implemented most consistently. As all ECJ judgments are binding for every European citizen, people should be able to read them in their own language. Similarly, national courts should be able to communicate with the ECJ in their own language. This is why we need language lawyers who translate from foreign languages into their own mother tongue, as translation programmes are unable to cope with the legal language and would distort the meaning of the text. My day-to-day tasks include translating from German, French, English or Italian into Estonian; however, we also continue to develop legal terminology and have to compare the law of different countries on a daily basis for our translations. So this work is also very interesting and full of challenges.
The questions were posed by Emily Todt.