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JURIDICA INTERNATIONAL. LAW REVIEW.
UNIVERSITY OF TARTU (1632)

Estonia’s First Law Journal in the Struggle for Law

Marju Luts-Sootak
pp. 59-68[PDF]

1. Introduction

On 1 December 2009, the Estonian-language university in Tartu celebrated its 90th anniversary. Estonian-language law journals, however, celebrated an anniversary of an even rounder number—a whole 100 years. Instead of festivities, a more practical approach was taken to celebrate the latter in the form of a scientific conference. A festive touch was nevertheless added by an exhibition on display at the university library. *1 The dull appearance and brevity of the first publications is striking in comparison with the more recent journals boasting of dignified thickness and, as printing techniques have improved, also colourful designs. The first law journal in Estonian *2 was in more or less DIN A5 format and contained 16 pages. It was titled Seadus ja Kohus. Õigusteadline ajakiri (in English, ‘Statute and Court. A Legal Journal’) and it appeared in January 1909. This journal was not even published in Estonia but issued in the capital of the Russian empire, St. Petersburg. It was only in its third year of publication that the executive editor of the journal moved to the capital of the Province Estland, Tallinn *3 , and so did the journal. Nevertheless, the Estonian-language newspaper Peterburi Teataja (in English ‘St. Petersburg Gazette’) continued to consider the journal its supplement as late as 1913. *4 The fact that Estonian-language newspapers, books, and in this case a legal journal were published in St. Petersburg, the capital of the Tsarist Empire, is not as surprising as it may seem at first. “The City of Hopes” *5 , St. Petersburg, was the closest major city, attracting not only the working classes but also, and predominantly, the intellectuals, among whom lawyers were at the forefront. *6 During the second half of the 18th century, the academic consolidation had led to the foundation of law journals in several legal cultures in Europe. *7 Why shouldn’t the case have been the same for Estonian lawyers? However, the beginnings of Estonian-language legal journalism are distinctive in its own right and as such worthy of a closer look beyond a mere mention of the anniversary. In the following I will discuss the programme of the journal, the theoretical backgrounds of that programme (in Section 2), and the people involved as well as its actual implementation (in Sections 3 and 4).

2. The programme: Groundwork on the Struggle for Law

The first issue of the journal opened with a 2.5-page address, which might also be taken to represent the programme of the journal. *8 The need for such a journal was justified by evoking the spirit of the times. Law and the knowledge of it had become necessarily ineluctable. This, as elaborated upon in the address, was, among other things, supported by the fact that legal studies had been added to secondary-school curricula, not to mention those of the universities. However, it was not the intention of the journal to undertake a scientific study of law. Without questioning its study in the university as a rightful foundation on which to build “high and beautiful legal structures”, the editor of the journal found it to have one great deficiency—namely that “theoretical knowledge of law” neglected the “sources of life”.

Those very first keywords in the address of the editors seem to refer to a contemporary shift towards the arrival of a new kind of legal science that took its origins to stem from the ‘life’ itself. *9 Although the publication of Seadus ja Kohus coincides with the peak of the activity of the so-called Freirecht-movement in Germany and among its foreign followers *10 , the goal of the first Estonian-language law journal was not one of legal science of a new kind. Seadus ja Kohus aimed to achieve the contrary—to take up the task of educating the public and disseminating information about current law to larger masses. Specially mentioned was the problem that the “practical” knowledge of law and legislation was in need of dissemination in order to “serve the demands of life”. Surely that would have sufficed to justify the expressed need for a popular law journal: the educated sons of the people had decided to spread their knowledge on a broader scale and in the language of the country’s inhabitants. However, rather than limiting himself to the need to disseminate practical law, the editor’s train of thought took a loftier—in a sense, even a metaphysical—turn.

“Practical knowledge too” was to have “its higher and more beautiful purpose”. The editor had to elaborate a bit on that idea. His concept was, namely, built on the notion that the “basic law” of social life “was the struggle for existence and the struggle for a better position”. Though the laws of nature inevitably dictated the presence of an urge towards a better life in any given person, biological or physical laws of nature were not determinants of the social struggle. The rules of the struggle were instead determined by “the authorities on legal power—i.e., first and foremost, the government of the state—and also by miscellaneous other public authorities”. In order for an individual to be successful in improving his position and situation, he had to know such rules that were forced upon him, as otherwise his “activities [...] turned null and void”. Turning the legal opportunities to one’s advantage was to serve the ‘higher purpose’ even if, in any particular case, the gain of one person damaged “another person or even a crowd of people”. Thus, by taking advantage of the legal opportunities available to him, that one beneficiary served a high ideal—the sense of law:

“As a legal measure exercised by someone for his own benefit might be useful also to the broad masses, then each individual member of the social collective is obliged not to have his rights trampled upon but, rather, to protect them in any way possible, thus preserving the social sense of law. Development of such a sense of law also belongs to the realm of disseminating practical knowledge of law, thereby rendering a huge value to practical knowledge of law.” *11

The circle was complete: practical knowledge of law helps an individual to fulfil his life plans pursuant to the law but nevertheless selfishly. Protecting one’s rights was to increase general benefit because the building up and development of a personal sense of law also allowed protection and preservation of a general, social sense of law.

Now indeed the editor’s address spoke of the people for whom the law journal had been published. According to the editor, the nation—whether Estonians or the whole of Tsarist Russia, is not mentioned—was in precisely in that phase of its life where its people were actively pursuing a better standard of living and social position, and the editor was confident that this was possible only by masterfully taking advantage of legal opportunities, and not by opposing them. Better knowledge of available legal measures was supposed to improve not only the standard of living of an individual but, further, the whole nation:

A nation may further its life only if it carries a firm sense of law, as is the best witnessed by the flourishing of the Roman State.” *12

Both the keyword ‘sense of law’ and the psychologisation of law as a whole were very much in fashion during the first decades of the 20th century. However, the programme in question demonstrated particular kinship with one particular theory in this area. What I refer to here is two significant elements: firstly, the obligation (!) of everyone to exert his rights and not have them “trampled upon” and, secondly, the teaching on how such a struggle of an individual for his subjective rights is automatically beneficial to the whole society as the individual contributes to preservation of the social sense of law.

The idea concerning everyone’s obligation to stand up for his rights was associated, in suggestively powerful language, with nothing less than the moral existence of an individual:

“/p. 31/ III. The struggle for his right is a duty of the person whose rights have been violated, to himself. […] In the law, man possesses and defends the moral condition of his existence—without law he sinks to the level of the beast […] /p. 32/ […] The assertion of one’s legal rights is, therefore, a duty of moral self-preservation – the total surrender of those rights, now impossible, but once possible, is moral suicide.”

Standing up for one’s right was something even bigger—an obligation aimed toward the preservation of the society and law as such:

“/p. 69/ VI. […] the assertion of one’s legal rights is a duty which he owes to society. […] /p. 70/ Concrete law not only receives life and strength from abstract law, but gives it back, in turn, the life it has received. It is of the nature of the law to be realized in practice. […] /p. 71/ But while the realization in practice of public law and of criminal law is assured, because it is imposed as a duty on public officials, the realization in practice of private law is presented to individuals under the form of their legal rights; that is, it is left exclusively to them to take the initiative in its realization, left exclusively to their action. […] the reality, the practical force of the principles of private law, is proved by the assertion of concrete legal right. […] /p. 73/ But each of us, in his own place, is called upon to defend the law, to guard and enforce it in his own sphere. The concrete legal right which belongs to him is only his authorization by the state to enter the lists when his interests require it. […] /p. 74/ […] In defending his legal rights he asserts and defends the whole body of law, within the narrow space which his own legal rights occupy. Hence his interest, and this, his mode of action, extend far beyond his own person. The general good which results therefrom is not only the ideal interest, that the authority and majesty of the law are protected, but this other very real and eminently practical good which every one feels and understands, even the person who has no conception whatever of the former—that the established order of social relations is defended and assured.”

The nation and its law stands to benefit from an individual’s sense of law and the exercise of his rights because the nation is made up of individuals and every individual who has learned to successfully stand up for his rights in private-law relations is capable also of demanding political rights both for himself and his people:

“V. /p. 97/ … But the interest of this struggle is not confined, by any means, to private life or private law. Rather does it extend far beyond them. A nation is, after all, only the sum of all the individuals who compose it, and the nation /p. 98/ thinks, feels, and acts as the individuals that make it up think, feel, and act. […] /p. 99/ The battler for constitutional law and the law of nations is none other than the battler for private law; the same qualities which distinguished him struggling for his rights as an individual accompany him in the battle for political liberty and against the external enemy. What is sowed in private law is reaped in public law and the law of nations. In the valleys of private law, in the very humblest relations of life, must be collected, drop by drop, so to speak, the forces, the moral capital, which the state needs to operate on a large scale, and to attain its end. Private law, not public law, /p. 100/ is the real school of the political education of the people, and if we would know how a people, in case of need, will defend their political rights and their place among the nations, let us examine how the separate members of the nation assert their own right in private life.”

Such was the speech delivered by Professor Rudolph von Jhering on 11 March 1872 at the Vienna Law Society (Juristische Gesellschaft). *13 The great German scholar, naturally, spoke in German, not English. The translation into English excerpted above: “The Struggle for Law” was published by John Joseph Lalor seven years later, in 1879. *14 The translation was based on the fifth German-language edition *15 , in the preface of which, dating from 1877, Jhering counted 13 translations published to that date, two of them into Russian, which were both already from 1874. One of these translations, published in Moscow, was supposedly by Volkov; regarding the other, Jhering lists the translator as anonymous, specifying that it had been published “in a law journal” in Moscow. Consequently, the translation by Grachev, available at the Estonian National Library in Tallinn, must have been already the third Russian translation from 1874. *16 In addition, there are the translations offered by Yershev and Loiko, published, respectively, in 1901 in Moscow and in 1912 in St. Petersburg. When this opening shot of Estonian legal periodicals in 1909 was fired, there must have existed three, or perhaps even four distinct Russian translations of this international best-seller. *17 Although it can be assumed that educated Estonians at the beginning of the 20th century were well enough versed in German to read the original or at least its Russian translation, a translation into Estonian too was published, in Tallinn in 1913. *18 However, it is a bit of a mystery how some years previous to that, Peterburi Teataja had already been able to offer an Estonian translation for 40 kopecks in its book listing. *19 In any event, the programme of Seadus ja Kohus demonstrates that its author must have been familiar with Jhering’s “struggle” even if he did not make direct reference to it. This provides all the more reason to take a closer look at who that very first author was and who were the others who came together in the columns of that law journal.

3. The people involved

The executive editor of the journal and the author of the address examined above was a lawyer, Mihkel Pung. In 1908, he was 32 years of age. A farmer’s son, born in 1876, schooled in Tartu and later at the university there, Pung was in a certain sense a typical ambitious social climber of his day. The Russian Empire remained a class society until its end; however, education, especially university education, opened doors for young men also from the lower classes. Pung studied law in 1897–1900 in Tartu (after the era of Russification, both the town and its university were called Yuryev *20 ) and then between 1901 and 1902 at the university of St. Petersburg. Many Estonians much preferred to study in either of the ‘two capitals’ of the empire—St. Petersburg and Moscow—as the career options were more lucrative in other provinces of the empire than at home, in the Baltic provinces. After finishing his studies, Pung worked in Tallinn for a couple of years and then proceeded to practise as a lawyer in St. Petersburg in 1906–1911. It was in that period that he started to publish the law journal Seadus ja Kohus, most of the articles in which he apparently personally collected and prepared for print. In the first year of issue, there is only one contribution, with the author acknowledged, from someone else: namely an article about the rights of the estate-owners in the Province Estland on the leasehold land of peasants, authored by Lui Olesk. Olesk was the same age as Pung and had the background of having studied law at the University of Tartu and then practised as a lawyer in Tartu; Olesk, however, had been banished to Vologda in 1908–1910. After his return from exile, he continued his practice as a lawyer.

In 1910, two young men were introduced as authors. The 26-year-old editor of the mother publication, Peterburi Teataja, Robert Berendsen was a non-matriculated attender of a trade course in St. Petersburg. In 1910, he published three articles: on church taxes, church wardens, and parish courts, and in 1911 one more article on the depositing of the capital of orphans. In 1910, Aleksander Kann, just 20 years old and studying law at the University of St. Petersburg, published an article on the passport system in the Russian Empire and a piece about the regulation of emigration or resettlement. After short stints of work in a statistics office, as a schoolmaster, and as a tax inspector, Kann first became an assistant to a sworn advocate in 1921 and then in 1926–1940 a sworn advocate himself.

In 1911, Pung moved from St. Petersburg to Tallinn and took the first Estonian law journal with him. In Tallinn too he made a living as a lawyer while continuing as the executive editor of the journal until 1912. In addition to him, in that year of issue, 29-year-old Ado Birk began to contribute actively. He had studied law in Tartu between 1907 and 1908, then somewhat longer in St. Petersburg between 1908 and 1911, and then had spent a year in Leipzig. He had also attended philosophy and psychology lectures. In 1912, Birk became an assistant to one of the most renowned sworn advocates of Estonia, Jaan Poska. In 1912, Birk contributed articles on the elections to the State Duma (the parliament of the Russian Empire), on the already familiar topic of passport law, and also on family law. In 1913, Birk took over the post of executive editor of Seadus ja Kohus and continued to contribute as an active author, with articles on the permitted size of farmsteads in the Province Estland, on state fee for tenancy contracts, and on parish taxes. The former executive editor Pung did not provide any articles during the final year of issue of the journal, which was discontinued in May 1913. This did not exclude him from providing announcements on case-law or government activity. However, the expansion of the body of authors in the second half of 1912 and the first half of 1913 is apparent. In addition to A. Birk, a couple of young lawyers stepped in. The 26-year-old Anton Palvadre wrote about the law on bills of exchange, on wills, and on one particular institute that was still valid in Baltic private law—heritable lease (in German Erbpacht). Rein Eliaser, a year younger than the former, wrote about fishing rights and preliminary contracts.

The authors’ professions cannot be determined in cases where they used aliases (–xy., X., xy., Lex., and Sascha) or initials (K. P., and M. J.) and where the persons behind the names cannot be identified (G. J. Sack and A. Pallas). Save individual exceptions such as G. J. Sack *21 or K. P. *22 , and, depending on the topic, M. J. *23 , these persons mostly authored only announcements a couple of pages long, in most cases informative in nature. An article by an identifiable person active in agriculture and politics, Mihkel Aitsam, on the prizes exhibitions of farmers’ societies *24 can be placed in the same category. Here it should be stated that although the Baltic provinces were indisputably at the forefront of industrialisation when compared with the rest of the Russian Empire *25 , in comparison with Western Europe they were still areas oriented toward an agricultural economy. Therefore, it is no wonder that farmers’ societies played a significant role in the movement of societies that lay the foundations for modern society there and that agricultural exhibitions were events that initially brought together local German estate-holders but also, from the late 19th century onwards, increasingly also Estonian and Latvian farmers. *26

Unlike Estonian farmers themselves, their sons who had managed to gain an academic legal education had not yet come to form a professional association or society. Thus was the short-lived first Estonian-language journal throughout its whole existence (1909–1913) deprived of professional institutional support. *27 It was shaped by lawyers in their early thirties or late twenties who provided its content as executive editors and authors. Almost all of them came from farm-owners’ or farm-leasers’ families. *28 They had studied either in Tartu or in St. Petersburg, or both. We can only guess about the driving force behind these men in their efforts to support their nation ‘in the struggle for its rights and law’ by way of a wider dissemination of legal knowledge. It could not have been money, because practising law was surely more lucrative and, besides, that kind of practical advice could probably have been ‘sold’ at a higher profit from behind the lawyer’s desk than on the pages of a journal. Our best guess is that they were rather driven by a feeling or sense of mission and a sincere desire to provide legal enlightenment to the people. Also, what must not be underestimated is the craving for self-fulfilment and the wish to reach out to a larger auditorium than their smallish offices could ever provide. The young lawyers—the editors and authors of Seadus ja Kohus before WWI—occupied eminent positions in the Republic of Estonia’s state affairs after WWI: Pung was the first governor of the Bank of Estonia, a member of the parliament, and also for a short while Minister for Economic Affairs and Minister of Foreign Affairs; Olesk was involved with the Constituent Assembly and served as Attorney-General, Minister of Justice and Minister of Labour and Welfare; Birk too was in the Constituent Assembly, and later held the position of Minister of Foreign Affairs twice. He was also appointed Prime Minister, as well as being a member of the parliament and Estonian ambassador to the Soviet Union. Palvadre was Minister of Labour and Welfare, member of the parliament, judge of the Supreme Court of Estonia, and the first legal chancellor of Estonia; Eliaser acted as a secretary at the important (peace) negotiations in 1919 in Paris and in 1920 in Tartu and was also a member of the parliament and a judge of the Supreme Court. Their professional success and political activity aside, their biographies share a common dark side—almost all of them *29 were imprisoned in 1940–1941 at the onset of the Soviet occupation and died within a couple of years in Russian prisons or prison camps. However, the years that this article concerns itself with fall in the time before the beginning of WW I when history still knew nothing of the Estonian nation-state or its occupation. The first law journal of the Estonians in their own language can be seen as one of the factors that paved the way for their first sovereign state in their entire history. Therefore there is all the more reason to have a closer look at the areas of knowledge and topics that were supposed, disseminated by law experts to wider masses, to contribute to the ‘struggle for law’ foreseen in the programme.

4. Implementation of the programme

Seadus ja Kohus was originally published as a monthly supplement to the newspaper Peterburi Teataja, and a yearly subscription was rather inexpensive—50 kopecks. Until the April edition, the law journal did indeed come out monthly. Between May 1909 and February 1910, however, there were only double volumes—either not enough material could be gathered during the month or the executive editor lacked the time and energy for a monthly effort. The spring of 1910 seemed to have provided fresh impetus, but from July until the end of the year, again, only double volumes were put out. The next year, 1911, opened with a couple of monthlies to be followed by doubles from March to August. Probably because of the move of the executive editor, just one further issue saw light before the end of the year, thus covering whole four months’ worth of material. The page count in this rather chaotic publication year, however, remained more or less on par with the previous years of issue: the 152 pages of 1911 are comparable to the 168 and 172 pages, respectively, printed in 1909 and 1910. It was instead the year 1912 that eventually proved to be rather ‘nervous’. For starters, five issues came out every month, but this happened under a new name, Õigus. Õigusteadusline ajakiri (in English, ‘The Law. A Legal Journal’), while regular issues continued to appear from June onward under the old name, Seadus ja Kohus. Õigusteadusline ajakiri. *30 In the current stage of research, it is impossible to say why, for the first five months of 1912, the journal bore the alternative title Õigus. Censorship is one of the possibilities. Name-changing was a widely employed strategy to respond to the censors of the Tsarist Empire. Similarly, the mother publication, Peterburi Teataja, was in 1910 published as Pealinna Teataja (in English, ‘The Capital Gazette’). The page count of that year of issue, however, remained much lower in comparison with the St. Petersburg period, amounting only to 112 pages. Year 1913 started once more with a double volume and continued with monthlies until the May issue, which was to be the last issue of 1913. At the beginning of 1914, a January–February joint edition came out, again under the name Õigus, but this was followed up by nothing. *31 All in all, the run of the first Estonian-language law journal amounted to about five years and exactly 699 pages.

The first year of issue covers 11 articles explaining current laws, 11 translations of current laws, three overviews or translations of draft law, a translation of one explanatory memorandum to a draft law, 11 excerpts from government regulations or from the judicial practice of the supreme court of the empire, four translations of statutes of associations or societies, five announcements from abroad, and 22 announcements regarding judicial practice or legal problems at home. This list follows the subdivisions of the year’s cumulative table of contents. The relative proportions of the articles in each of these categories remained more or less the same in the next years of issue. The subdivision of ‘Questions & Answers’ promised at first was not developed further, save some exceptions. At any rate, it is clear that this was not a theoretical or a scientific journal.

Regarding the choice of topics, Seadus ja Kohus leaves no doubt that this was a journal for the people, the majority of whom resided in rural areas and at local government level belonged to parishes composed of farmers. Parish taxes; road-building; transport of prisoners as the duty of the parish; remuneration, responsibilities, rights, and benefits of parish clerks; credits and capital investments available to parishes; general welfare and welfare services for the poor; how to become a member in and withdraw membership from a parish; manning and competence of parish courts and their performance of their tasks; relations between a parish government and parish council—these topics pervade the entire existence of the journal. Regarding the ethnic and social structure of the population, such a choice is quite understandable for an Estonian law journal at the beginning of the 20thcentury. Estonians inhabited mostly the countryside and almost without exception belonged to the peasant class. After the peasantry were liberated from serfdom in the first half of the 19th century, it was exactly for this social class that the Parish Act of 1866, equally applicable to all of the Baltic provinces, provided a local government that, with a pinch of salt because of the class restriction, can be seen to have been the first modern self-government in the Baltic countries.The representatives of the nobility—the knighthood—were obviously an institution of the ancien régime, and in the towns the guildhood, which originated in mediaeval times and was modified during the 18th-century reforms and counter-reforms, was abolished only in 1877 with the establishment of general Russian Town Law. *32 Although there were several Estonian translations of the Parish Act, Seadus ja Kohus published a new one. *33 No translations of any law *34 had in the journal been tagged as a “private publication”, while this particular translation used that phrase right in the heading. So a special meaning was ascribed to this translation. However, one cannot claim that Seadus ja Kohus was predominantly a journal addressing parish matters.

Many articles, explanations of laws, overviews of government regulations, and Supreme Court cases concern farmlands and agriculture. Taxes and legal-technical requirements relevant to the sale of farm-holdings; sales restrictions dependent on the type of manor; rules governing the exchange of farmland for manor land; annexing of farmland to manor land; minimum size of farm-holdings; cutting rights; over and over again hunting rights; fishing rights: rights to use shores—the peasant—law regulations valid in the Province Livland since 1849/1860 and in the Province Estland since 1856/1859 gave rise to the selling of farmholds, and the related legal relations still remained a topical subject matter for a legal periodical even in the first and second decade of the 20th century. Articles on land improvement, credit institutions, and credit law as well as the translations of related acts also deal with agriculture. Indeed, it is obvious that Seadus ja Kohus took seriously its obligation to educate the peasant majority of the nation about their rights. That the Estonian peasants were not so restricted in their mobility any longer is demonstrated by the topics related to resettlement to which quite a lot of attention is paid: general rules, passport law (on several occasions), the procedure for leaving a parish, and acquisition of plots of land in Russia.

An option for individual peasants in order to better validate their rights and more successfully take advantage of economic opportunities was to assemble into voluntary associations and societies. The movement of societies was something that the executive editor of Seadus ja Kohus seemed to believe would efficiently improve the ‘sense of law’ of the people. Legal bases and rules applicable to the foundation and operation of societies were analysed in depth. Current announcements were made regarding various court disputes and decisions of the provincial government in this realm. A significant number (totalling nine) of the statutes of very different societies and associations were published. Quite understandably, the statutes of the Society of Farmers in Estland or the statutes of the publishing society Ühiselu, which were published by Seadus ja Kohus itself, were among them. However, the palette of the statutes is much richer; from the Saving and Building Association of Hannover to the horse‑shoeing courses in Tukkum.

Regarding the movement of societies, it is worthy of mention that Seadus ja Kohus was precisely that organ which for the first time, and already in its second issue, expressed the desire and need for a formation of an association of Estonian lawyers. *35 This call was not signed—but most likely it was penned—by the executive editor Mihkel Pung. A “duty to oneself and to one’s people” now demanded that the growing body of academically educated Estonian lawyers should assemble and thereby contribute to the improvement of the people’s sense of law. The author even proclaimed that an association of specialists would be of greater use in explaining legal issues than any (legal?) periodicals would be. Obviously, the concept of a ‘rule of law’ was still unknown in the Estonian legal language and therefore the talk was simply about great changes in the structure of the state in the achievement of which the State Duma was to “march on the forefront”. The march was to head towards a “legal order” that could be “implemented with legal measures only”. The future Estonian lawyers’ association was to carry a major role in this ambitious task. As customary, this all boiled down to the education of the people, that is, explaining the legal opportunities available to them. However, this call to action met no response and it was only in 1915 that an organisation was founded that was to remain active somewhat longer. *36 Nonetheless, the journal announces that the first joint meeting of educated Estonian lawyers occurred in Tallinn, in summer 1909 during the Song Festival. *37 The participants in meeting were said to have agreed upon the objectives of the association-to-be and Pung was tasked with preparing the statutes of association, modelling them upon the statutes of Russian counterparts. *38 Unfortunately, no light has been shed on the follow-up action. It is safe to guess, though, that had the association been formed, the journal would have made an announcement to that effect.

As much as Seadus ja Kohus targeted the overwhelming majority of Estonians—the farmers—certain urbanisation tendencies can be noticed even in this short-lived journal. Workers’ unions, health and old-age insurance for the workers, compensation for damage in cases of occupational accidents—these topics are self-explanatory. The more ‘urban’ topics also include those that were supposed to stimulate the enterpreneurial spirit: banking and credit; law on bills of exchange; copyright, patent and invention laws. Thus, the first Estonian-language law journal did a good job in reflecting contemporary social processes. Estonians were gradually settling in towns, and becoming not just workers but also house-owners or intellectuals. On the one hand, they were bound to be concerned about the local issues of the Baltic provinces, such as everything connected with the Evangelist Lutheran Church: church taxes, ownership of church property, the legal aspect of churchwardens, and certifications of conversion. On the other hand, the journal aspired to contribute to the ‘civic’ (in German staatsbürgerlich) enlightenment of Estonians—the matters pertaining to the State Duma and its elections are treated with great insight. Much attention was also paid to conscription. Another area that cannot be left without mention is social mobility within the hierarchical Russian Empire. Education, organisation of schools of different levels; adult education; public libraries; privileges of teachers and students, also women’s access to teacher’s posts—these topics were to serve as inspiration for the sons and daughters of the small nation whose legal enlightenment the authors of the first Estonian-language law journal had taken upon their shoulders as an obligation to themselves and to their people. Their own roots too were in the rural, peasant milieu, and it was through education that they were able to settle into their ‘urban’ profession of lawyer.

What Seadus ja Kohus does not offer is ‘struggle for the right to law in the native language’. *39 The programme in the address of the journal, for instance, does not even mention the fact that it is the first law journal in the Estonian language. Only a couple of years later, in the end of 1911, was the formula “the first Estonian-language law journal” introduced, in an advertisement of Peterburi Teataja for a yearly subscription to the newspaper and its supplements. *40 A certain sensitivity in language matters may be noticed only in the November 1912 issue. The relevant article begins with a highly neutral and descriptive account of a protest action of one parish council in Curland which had been caused by the minutes of the parish government, which, under the law, had since 1911 been noted down in Russian. *41 At the end of the year, the parish council was supposed to review and approve them. However, the Latvian members of the council claimed that they could not approve minutes taken in a language they did not understand. This account is followed by an article by A. Birk about state apartment fees, which begins, unusually for Seadus ja Kohus, with the note that “not everyone comprehends Russian-language [tax] notices”. However, this is immediately followed by a statement that mitigates the language issues: “the articles of law are often enough not clear even to one mastering in the language.” *42 Here too, the essentially legal problem prevailed and language was taken to be simply the tool for approaching it. Such disinterest in language matters seems slightly strange, as Estonian legal language was still badly needing development and the writings demonstrate how lacking it was in proper terminology. Above I mentioned that Jhering’s Kampf um’s Recht had also been translated into Estonian. *43 The translator attached a list of the new terms he had been forced to devise. The list includes such words, among others, as hädakaitse (self-defence), loobumine (waiver), omavoli (arbitrary action), and heausuline (acting in good faith). Another 10 years later, now already in the Republic of Estonia, when one of the most scientific of Estonian journals and one among those with the greatest longevity, Õigus (‘The Law’, 1920–1940), had begun to be published, the linguistic issue had become the matter of the day. The very first issue of Õigus addressed the need to develop legal terminology *44 and introduced its long-lived terminology subdivision. *45

In 1920, a start was made to tackle the penal law terminology, and, also in this respect, the approach is distinctly different from that of the journal some 10 years older. One might assume that a law journal targeting the broad masses would attempt to excite the people with thrilling stories—and where else to get the thrills than from the penal cases? Seadus ja Kohus did publish translations of more recent penal laws: stricter punishments for horse-stealing, release from prison on parole. The scarce case announcements focus rather on funny stories: about a penalty for misspelling pravoslavnyj (Russian for ‘orthodox or right believer’) such that the outcome was the concept of krivoslavnyj (‘bent believer’); how farmers were punished for purposefully riding their horses at a snail’s pace such that the manor‑owner’s carriage was not able to overtake, etc. It can be said with absolute certainty that Seadus ja Kohus did not try to attract attention by describing gory crimes or inciting to revenge. Serious case announcements are more of a warning in nature than anything else—for instance, drawing attention to the fact that late reporting for military service might result in being punished as a deserter. As far as scientific treatments of penal law are concerned, there was only one and even that concerned a rather peripheral subject. *46

At any rate, this article has already dedicated more space to penal law than the source of our research ever did. The rooting of Seadus ja Kohus in Jhering’s Kampf is evidenced, inter alia, by the fact that much more attention is paid to private law. We have already mentioned the in-depth treatments of legal issues related to farmland. Law of immovable property in a broader sense is the subject of many other writings that attempt to explain current laws in more depth: about the requirement to register all property transactions; about the importance of requirements of form in general and, separately, the advantages of the written form over the oral one; state fees and taxes payable on various transactions; ownership of a house built on leased land; transfer of ownership upon the sale of a registered immovable and upon payment by instalments; about the legal meaning of earnest money; compensation for improvements made by the lessee, and cancellation of a lease contract; the regulation and legal nature of heritable lease. Of course, the law of succession is associated with property in a broader sense. Besides brief case announcements, the journal published a separate, systematic treatment of the right to a will in general and, in addition, of the related special rights under the peasant law regulations of Estland and Livland. *47 Within the range of topics covered, it is noteworthy that the law of obligations has been relatively neglected. On the contrary, next to the already mentioned law of succession, family law stands out strongly. Both a longer systematic overview *48 as well as shorter explanations of law or case announcements in relation to individual matters were published: about the rights and obligations of spouses after their separation, and separately also about the obligation to pay alimony and the liability of the wife for the husband’s debts in cases involving joint property *49 , as well as about children born out of wedlock. Seadus ja Kohus, which targeted the people broadly, reinforces the fact that family and succession law are those realms of private law that must be ‘popular’ and must be made as understandable for the people as possible.

5. Conclusions

Even if, after having been published for four and a half years, Seadus ja Kohus eventually disappeared for good from the landscape of Estonian legal periodicals, the journal may be seen as having been rather successful among those in its category. For instance, the Baltics’ first German-language law journal had started to come out about 90 years earlier but managed to perdure just for two years in two issues (in 1822 and 1824). *50 The same applies to the first Russian journal, although it was a contemporaneous one (from September 1913 until November 1914). *51 Unlike these two, the first Estonian law journal didn not have any link to a university or any other academic institution. And this is not something that acts in a law journal’s favour; rather, it does the opposite, as we can see by following the periodicals of several countries and nations. So in this context, Seadus ja Kohus was quite a persistent publication.

In this article, the efforts of the Estonians and Croatians in the realm of legal journalism have already been compared on a couple of occasions. The first Croatian legal journal, Pravdonoša, was published about 60 years earlier but limited itself to just two years of issue (from January 1851 to September 1852); the same was the case with Pravnik (1853–1854) and another Pravnik (1862–1863) and the even more short-lived Novi pravnik (1871). *52 The first Croatian law journals differed from their Estonian counterpart in their attempts to consolidate lawyers and to step up specifically as their organ of communication. Even in Iceland, whose population is even less than that of Estonia, the first attempts were made with a journal among lawyers. Nonetheless, their Lögfræðingur too managed to survive for a whole five years of issue (1897–1901) although there were only about 50 trained lawyers at that time. *53 There were twice as many Estonian lawyers, or more: by 1915, there are said to have been 123 university-trained lawyers and another 118 still completing their university studies. Legal studies were indeed most popular among Estonians, followed by medicine (in 1915, 98 had graduated with a degree in this field and 175 were still studying for one) and engineering (in 1915, there were 96 graduates and 112 students). *54 It is difficult to say why those young men preferred this genre, enlightening journals addressed by lawyers to the broad masses, which in international comparison did not promise of much success. Seadus ja Kohus was not the last of its kind either. In January 1912, Õigus ja Kohus. Õigusteadusline ajakiri (English, ‘Law and Court. A Legal Journal’) began to be published in Tallinn and endured until WW I—its final issue saw light in July 1914. In the course of 1913, another six issues of Õigus (‘The Law’) were published in Tartu; its first issue in the winter of 1914 completed its run of publication. These publications too were intended to be from the lawyers to the people, and they likewise were mainly authored by young lawyers or assistants to lawyers. *55

For the time being, it is difficult to say what the specific examples that the first Estonian law journals followed were because not a great deal has been written about such journals that were addressed to a non-professional audience. It seems that a roughly comparable journal is one that had been also been published in St. Petersburg already since 1902, Юридический Общедоступный еженедельый журнал (‘A Weekly Law Journal for Everybody’). This publication attempted likewise to disseminate legal knowledge throughout the population and give legal advice in response to the readers’ questions. *56 For further research, it is this Russian weekly that might offer a possibility of comparison—it might be interesting whether the knowledge disseminated to the non-legal population of the empire, or of its capital, differed from that information provided to the Estonians or was similar to it. Another point to observe is whether also the Russian lawyers were driven by the desire to lead individuals into legal armament so that they might stand up for their rights and contribute to the promotion of the sense of law within the whole of the nation.

 

Notes:

*This article was published with support from ESF Grant No. 7923. This is a revised version of the German-language joint presentation with Merike Ristikivi “Die erste estnische Rechtszeitschrift in St. Petersburg – eine zarte Orchidee im fremden Regenwald?” at the conference “Law Journals: National, Regional, International” in Tartu on 30.11–1.12.2009.
*1 See photos taken of the exhibition and its opening ceremony at http://www.oi.ut.ee/konverents/et/684835 (13.03.2010).
*2 Obviously because of its title, Andres Dido’s (1855–1921) journal published in Paris in 1906–1908 under the title Õigus . La Justice : journal esthonien is sometimes considered to be a law journal. In reality, however, it was a political journal aiming to overthrow the Tsarist regime and implement a Socialist programme. The journal was not associated with any of the political parties. Rather, its aim was to be “a free organ of all of those who earnestly fight against the power of the wicked, backward autocracy, Baltic estate owners and other blood-suckers” (Õigus 1906/1 ( 3.06.1906), pp. 1–2). See about a similar problem with political journals in Croatia where titles such as ‘Law’ and ‘Constitution’ would have been also fitting for the political periodicals: Z. Pokrovac. Die lange Geburt der juristischen Periodika in Kroatien. Ein Genre zwischen dem Patriotischen und dem Fachlichen. – Juristische Zeitschriften in Europa. M. Stolleis, T. Simon (Hrsg.). Frankfurt am Main 2006, p. 195.
*3 The borders of the provinces in the Russian empire at that time do not coincide with the current borders of the Baltic states. The Province Estland contained only the northern part of the Republic of Estonia. The southern part of present Estonia used to belong to the northern part of the Province Livland. The Province Livland was the largest of the three Baltic provinces in the empire, encompassing also the northern part of the present Republic of Latvia. The territory of the third Baltic province—Curland—forms at present a part of the Republic of Latvia as well. The borders of the current states, founded after WW I and restored in 1991 after the end of the Soviet occupation and annexation, follow the ethnic and linguistic borderlines between Estonians and Latvians. For a brief overview of the legal history of the Baltic states, selected bibliography included, see M. Luts-Sootak. Baltic Nations. – The Oxford International Encyclopedia of Legal History. Vol. 1. S. N. Katz (ed.). New York 2009, pp. 253–257.
*4 Peterburi Teataja 1913/1 (3.01.1913). The mother publication Peterburi Teataja, was published from September 1908 until November 1914.
*5 See R. Pullat. Lootuste linn Peterburi ja eesti haritlaskonna kujunemine kuni 1917 (The City of Hopes St. Peterburg and the Formation of Estonian Intellectual Circles until 1917). Tallinn 2004 (in Estonian).
*6 Briefly in R. Pullat (Note 5), pp. 123–138; in German see R. Pullat. Estnische Juristen in St. Petersburg bis 1917. – Buch und Bildung im Baltikum. H. Bosse, O.-H. Elias, R. Schweitzer (Hrsg.). Münster 2005, pp. 555–579.
*7 M. Stolleis. Juristische Zeitschriften: Die neuen Medien des 18.–20. Jahrhunderts. – M. Stolleis (Hrsg.). Juristische Zeitschriften: Die neuen Medien des 18.–20. Jahrhunderts. Frankfurt am Main 1999, pp. VII XIV.
*8 Lugejale (To the Reader). – Seadus ja Kohus 1909/1, pp. 1–3 (in Estonian).
*9 See about the attempts made already in the 19th century to bring law closer to ‘life’ and ‘the needs of life’ in Germany. H.-P. Haferkamp. Der Jurist, das Recht und das Leben. – Fakultätsspiegel. Verein zur Förderung der Rechtswissenschaft (Hrsg.). Sommersemester 2005, Köln 2005, pp. 83–98.
*10 See in detail about Freirechtbewegung and its aftermath J. Rückert. Vom “Freirecht” zur freien “Wertungsjurisprudenz” – eine Geschichte voller Legenden. – Zeitschrift der Savigny-Stiftung für Rechtsgeschichte, Germanistische Abteilung 2008, Bd. 125, pp. 199–255. According to Rückert, it was neither a movement nor a school of thought but rather a few groups whose time of conceptual activity occurred between 1903 and 1914, peaking in 1911 (p. 205).
*11 Lugejale (Note 8), p. 2; emphasis in the original.
*12 Ibid., p. 3; emphasis in the original.
*13 R. v. Jhering. Der Kampf um’s Recht. Wien 1872. Digitalised at http://gdz.sub.uni-goettingen.de/dms/load/img/?IDDOC=293883 (18.02.2010).
*14 Digitalised at http://www.archive.org/details/struggleforlaw00jheruoft (18.02.2010). In 1915, its second edition with a preface by Albert Kocourek was published: http://en.wikisource.org/wiki/The_Struggle_for_Law (18.02.2010). The pages shown above between slashes correspond to the second edition, which was reprinted in 1997. In addition, in 1883 another English translation by Philip A. Asworth was published. He translated the title more narrowly, compared to the original and Jhering’s initial concept, as “The Battle for Right”.
*15 Encyclopaedia Britannica’s assessment that its “success was extraordinary” undoubtedly holds true. However, the factual claim that “within two years it attained twelve editions” is untrue. Even the Jhering’s best-seller was not so popular—just four editions came out in the first two years.
*16 Р. ф. Игеринг. Борьба за право. Москва 1874.
*17 One of today’s most despised yet most used sources of reference, Wikipedia, starts its English article on Jhering by citing this very work already at the very top: “Rudolf von Jhering (also Ihering) (22 August 1818–17 September 1892) was a Germanjurist. He is known for his 1872 book Der Kampf ums Recht, as a legal scholar, and as the founder of a modern sociological and historical school of law”. Available at http://en.wikipedia.org/wiki/Rudolf_von_Jhering (18.02.2010). Though perhaps Jhering himself enjoyed the international success of his little book, covering a mere 100 pages, his main contribution lies in two (unfinished) major projects whose first editions form a corpus covering about 2,400 pages: R. v. Jhering. Geist des römischen Rechts auf den verschiedenen Stufen seiner Entwicklung. Th. 1, 1852 (XII, 336 p.); Th. 2, Abt. 1, 1854 (VIII, 320 p.); Th. 2, Abt. 2, 1858 (XX p., p. [321] – 695) = 1071 pp.; idem, Der Zweck im Recht. Bd. 1, 1877 (XVI, 557 p.); Bd. 2, 1883 (XXX, 716 p.) = 1319 pp.
*18 R. v. Ihering. Wõitlus õiguse eest. Saksa keelest E. Laaman (The Struggle for Law. From German E. Laaman). Tallinn 1913 (in Estonian). Unfortunately, no information is provided on which of the German editions served as the basis for this translation. The name of the author—Ihering—is here spelled according to this Estonian translation.
*19 An announcement by the publishing house Ühiselu. Peterburi Teataja 1911/76 (1.10.1911).
*20 An informative account correcting the negative image of the University of Tartu and its faculty of law in the final decades of the Tsarist era as has been disseminated in earlier literature is to be found in: T. Anepaio. Die russische Universität in Jur’jev (1889–1918). – Z. Pokrovac (Hrsg.). Juristenausbildung in Osteuropa bis zum ersten Weltkrieg. Frankfurt am Main 2007, pp. 391–425.
*21 G. J. Sack. Idanewa elu häwitamine ja kriminal õigus (Destruction of Germinative Life and Criminal Law). – Seadus ja Kohus 1910, pp. 97–100, 121–124, 145–152 (in Estonian). It was the most theoretical treatment in the whole of the journal. The treatment of abortion under penal law was mostly comparative, with the main attention turned to the German and Russian scientific literature. This is one of the few articles that provides an impressive list of footnotes.
*22 K. P. authored some articles which posed intriguing questions: Kes walitseb Tallinna wanemate Ew.-Lutheri usu koguduste waranduste üle? (Who Manages the Assets of the Older Evangelist-Lutheran Congregations in Tallinn?). – Seadus ja Kohus, pp. 93–98; Unustusse jäetud õigus (Forgotten Law). – Ibid., pp. 113–115, as well as a translation of the Mutual Fire Insurance Act (Seadus ja Kohus 1911, pp. 70–77, 81–93).
*23 In addition to an overview of the Congress of Joint Establishments (Seadus ja Kohus 1909, pp. 115–123), M. J. published a translation of the Act on Opening Postal Establishments in Railway Stations and Parish Centres (Seadus ja Kohus 1910, pp. 11–14).
*24 M. Aitsam. Põllumeesteseltside näituste aurahade kuju kinnitamine (Approving the Shape of Medals of the Exhibitions of the Farmers’ Societies). – Õigus 1912, pp. 7–8 (in Estonian). About the change of the name of the journal, see Section 4 below.
*25 D. Kirby. The Baltic World 1772–1993: Europe’s Nothern Periphery in an Age of Change. London, New York, 1995, p. 165.
*26 For an informative overview about the exhibitions held in South Estonia see T. Rosenberg. Deutsche und estnische Ausstellungen in Dorpat (Tartu) 1857–1913. – Steinbrücke. Estnische Historische Zeitschruft 1998 (1), pp. 171–197.
*27 For more on the role of vocational associations and professional institutions in the successful perserverance of legal journalism, see the article by Joachim Rückert in the same issue.
*28 Only A. Kann was the son of a sexton and schoolteacher, but his father too was active in agriculture.
*29 L. Olesk died already in 1932 in the Republic of Estonia, M. Aitsam died in 1953 in the Estonian Soviet Socialist Republic.
*30 Numbering reflected the fact that two issues, bearing different titles, belonged together by adding the total number in the brackets, although in June Seadus ja Kohus started its independent numeration both at the top of the journal and in the numbering of the pages.
*31 Õigus from 1914 can be viewed as continuation to Seadus ja Kohus for two reasons. First, the executive editor is still A. Birk who occupied the same post also in 1913. Second, Peterburi Teataja had announced that in 1914, its supplement was to be a journal named Õigus. Peterburi Teataja 1913/151 (24.12.1913); 1913/152 (28.12.1913).
*32 About the reforms in the Baltic provinces during the final third of the 19th century which marked pressure on the local special order but also brought about several modern reforms of the local order, see M. Luts. Modernisierung und deren Hemmnisse in den Ostseeprovinzen Est-, Liv- und Kurland im 19. Jahrhundert. – T. Giaro (Hrsg.). Modernisierung durch Transfer im 19. und frühen 20. Jahrhundert. Frankfurt am Main 2006, pp. 196–200.
*33 Kõigekõrgemalt poolt 19. weebruaril 1866. a. kinnitatud Balti kubermangude Wallakogukonna seadus (The Parish Council Act of the Baltic Provinces approved on 19 February 1866 by the Highest Power). – Õigus 1912, pp. 49–58, 65–76 (in Estonian).
*34 All in all, partial or full translations of 36 acts and regulations were published.
*35 Eesti õigusteadlaste ühisus (Association of Estonian Lawyers). – Seadus ja Kohus 1909, pp. 17–19 (in Estonian).
*36 T. Anepaio. Eesti õigusteadlaste päevade algus (The Beginning of Estonian Lawyers’ Days). – J. Erne (ed.). Eesti õigusteadlaste päevad 1922–1940. Protokollid (Estonian Lawyers’ Days 1922–1940. Minutes). Tallinn 2008, p. XXIII (in Estonian).
*37 The tradition of song festivals, taken over from the German culture, played a very important role in the national consolidation of the Estonians and song festivals are still a top event of the national culture, both in Estonia and Latvia.
*38 Eesti õigusteadlaste ühisus (Association of Estonian Lawyers). – Seadus ja Kohus 1910, p. 63 (in Estonian).
*39 Such pathos is carried, for instance, by the first Croatian law journal Pravdonoša from 1851 and 1852. See Z. Pokrovac (Note 2), pp. 198–206.
*40 Peterburi Teataja 1911/113 (29.12.1911).
*41 Põhjusmõtteline küsimus meie wallawalitsuste keele asjus (The Principal Question about the Language of Own Parish Government). – Seadus ja Kohus 1912, pp. 88–89 (in Estonian).
*42 A. Birk. Kroonu korterimaksust (About the State Apartment Fees). – Seadus ja Kohus 1912, p. 89 (in Estonian).
*43 R. von Ihering (Note 18).
*44 F. Karlsson. Õigusteaduse oskussõnad (Technical Terms of Jurisprudence). – Õigus 1920/1, pp. 6–7 (in Estonian).
*45 Nuhtlusseadustiku oskussõnad (Technical Terms of the Penal Law Act). – Õigus 1920/1, pp. 7–8 (in Estonian).
*46 G. J. Sack (Note 21).
*47 A. Palwadre. Testament (The Will). – Seadus ja Kohus 1913, pp. 69–73 (in Estonian).
*48 A. Birk. Perekonna õigusest (About the Family Law). – Seadus ja Kohus 1912, pp. 105–110 (in Estonian).
*49 This too is a so-called Estonian issue. For the high class, comprised mainly of German nobility and townspeople, this was relevant only on some territories and for single individuals. Joint property was in force in the Livland’s town law, Narva town law and in Livland for rural clergy. In contrast, peasant laws proceeded from the principle of joint property both in Estland and Livland. About the diverse forms of matrimonial property in the Baltic provinces, see T. Anepaio. Varaühisus – kas nõukogulik igand? (Joint Property: A Remnant from the Soviet Past?). – Juridica 2002/3, pp. 193–201 (in Estonian).
*50 Jahrbuch für Rechtsgelehrte in Russland. G. B. Erdmann (Hrsg.). 2 Bde. Dorpat und Riga. For a more comprehensive analysis of the journal and its authors, see M. Luts. Die juristischen Zeitschriften der baltischen Ostseeprovinzen Russlands im 19. Jahrhundert: Medien der Verwissenschaftlichung der lokalen deutschen Partikularrechte. – M. Stolleis, T. Simon (Note 2), pp. 75–84; M. Luts. Die “respublicae litterariae” um die juristischen Fachzeitschriften in den baltischen Ostseeprovinzen im 19. Jahrhundert. – J. Eckert, P. Letto-Vanamo, K. Å. Modéer (Hrsg.). Juristen im Ostseeraum. Frankfurt am Main et al. 2007, pp. 110–112. Both articles deal also with the rest of the Baltic-German law journals from the 19th century.
*51 Юридические Известия (Juridical News), под. ред. проф. А. С. Невзорова, Юрьев 1913–14.
*52 Z. Pokrovac (Note 2), pp. 198–217.
*53 See L. Björne. Nordische juristische Zeitschriften im 18. und 19. Jahrhundert. – M. Stolleis, T. Simon (Note 2), p. 26.
*54 K. Martinson. Teadustegevuse institutsionaliseerumine Eestis XVII sajandist 1917. aastani (Institutionalization of Scientific Activities in Estonia from the 17th Century until to 1917). Tallinn 1988, p. 359 (in Estonian).
*55 About all three Estonian journals from the time before WWI see M. Luts-Sootak. Aller Anfang ist gleich? Die estnischen Rechtszeitschriften vor dem ersten Weltkrieg. – M. Luts-Sootak, S. Osipova, F. L. Schäfer (Hrsg.). Einheit und Vielfalt in der Rechtsgeschichte im Ostseeraum/Unity and Plurality in the Legal History in the Baltic Sea Area. 6th Conference in Legal History in the Baltic Sea Area, Tartu and Riga, 3–5 June 2010, outcoming in Rechtshistorische Reihe by Peter Lang.
*56 H. K. Litzinger. Russland vor der Oktoberrevolution: Jursitische Zeitschriften als Plattformen politischer Reformdebatten. – M. Stolleis, T. Simon (Note 2), p. 137. No mention is made of the person who was the driving force behind the journal or how long the journal perservered.



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