Scientific* Legal Education and the Faculty of Law of the University of Tartu
Pastor Jakob Hurt, a leading figure of the Estonian national awakening in the second half of the 19th century stated: “We are never going to be great in number or strength, yet we can and must become great in spirit, through education.” This conviction entered the Estonian national consciousness. The small nation of Estonia had enough courage and strength to form its own independent state amid the turmoil of World War I. The idea of becoming and remaining great in spirit contributed to the tenacity of Estonian culture after the Soviet annexation in 1940. The restoration of independence in 1991, the “singing revolution” preceding it and other ideals of the national awakening, again placed J. Hurt’s words about the only realistic way for Estonia to become great in the forefront. This idea also concords with the restoration of Estonian independence and the reforms in progress, above all, education, including higher education.
According to § 4 of the Estonian University Act (12 January 1995), the purpose of a university is to “further science and academic traditions, create and develop opportunities based on integrated study and research for the acquisition of a corresponding modern higher education...”. In summary, the purpose of a university is to offer scientific education. Such emphasis endeavours to distinguish today’s university from that of the Soviet period. In the Soviet Union as well as in other countries of the Eastern Bloc, higher education was substantially practice-oriented. While it is true that universities were somewhat more scientifically oriented than other higher educational institutions, they were principally all the same. One of the key words upon the re-establishment of the Republic of Estonia was “legal restitution”, the legal continuation of the first period of independence between the two world wars. Even though in reality a new legal system is being created, one may still well speak of restitution, if not legislatively, then at least in the world of ideas. The latter encompasses the university’s trend to scientific education. The Faculty of Law of the University of Tartu is currently the only institution in Estonia whose function is to offer scientific legal education. This is all the more reason to recall the history of scientific education and recognise its essence today.
1. Wilhelm von Humboldt and the Idea of Scientific Education in the University
A university founded on the idea of scientific education is usually associated with the name of the Prussian statesman, educationalist and theoretician Wilhelm von Humboldt (1767-1835). German universities, above all, claim the perpetuation of legacy. Yet the idea of a modern university is not confined to Germany as already in the 19th century it had found its way into universities elsewhere in Europe and even in Russia.
To be quite precise, one cannot speak about the idea of scientific education in connection with Humboldt. Scientific education is simply a phrase in which the two words conceptionally overlap, just as a university education is intended by the term “education”. Humboldt’s idea about scientific education is based on several mutually interrelated ideas. The first is the principle of unity and continuity of science. The unity of science includes the subordination of any scientific activity to a three-stage procedure: “nur ein dreifaches Streben des Geistes rege und lebendig zu erhalten: einmal Alles aus einem ursprünglichen Prinzip abzuleiten ... ferner Alles einem Ideal zuzubilden; endlich jenes Prinzip und dies Ideal in Eine Idee zu verknüpfen”. *1 The principle of consciousness originally belonged to the sphere of experiential sciences and constituted their contribution to science as such. “Ideal” was used by Humboldt in the meaning of worldly wisdom or connection with ethics characteristic of the ancient cultures from which modern experiential science tended and still does tend to deviate. From the point of view of science, this translates mainly into a question of purpose. According to Humboldt, the highest purpose of science cannot be the accumulation and expansion of knowledge, it can only be the shaping of humans toward ever greater humanity (Humboldt: Menschheit). In the Germany of the late 18th and early 19th centuries, the concept of humanity was primarily that of Kant’s doctrine of a free ethical individual. Humboldt’s treatment of anthropology was based on the same doctrine. According to Humboldt, the ultimate purpose of science is to freely and ethically form free and ethical human beings and not just to increase the quantitative amount of human knowledge. The certainty of principle in experiential science and the ideals of intellectual science unified in one idea would guarantee science, or, expressed in a more modern way, the unity of sciences. Here “idea” means the aspiration toward a perfect science born from the unity described above and ensures that the whole body of knowledge permanently remains in state of research.
The principle of continuity of science is related to the idea of connecting all sciences and all scientific activity. For Humboldt, science can never be “ready”, science can only be viewed as forever developing, forever searching and forever discovering. Proceeding from this, the prime and ultimate principle of activity of scientific institutions was to be “das Princip zu erhalten, die Wissenschaft als etwas noch nicht ganz Gefundenes und nie ganz Aufzufindendes zu betrachten, und unablässig sie als solche zu suchen”.*2
The concept of unified science upon which Humboldt’s doctrine of the university was based was the certainty of principle, based on the life-ideal and in perpetual research. It is the inherent nature of universities to consolidate different theories and in this respect, universities are well suited to serve Humboldt’s idea about the development of unified science. In any case, the conditions for mutual contacts between different sciences or branches of science are much more favourable in universities than in any other specialised higher education institution. During Humboldt’s lifetime especially the founding of specialised higher education institutions was fashionable. In Berlin alone six such schools were established during the years 1770 to 1806. The first of them was the Academy of Mines and the last the Institute of Agriculture. Starting from 1802, these schools began to spread to France as well. *3 Thus, Humboldt’s doctrine of science could have been regarded as opportunistic in its day if it had not so perfectly harmonised with the opinions of his contemporaries Schelling, Fichte, Schleiermacher and other German classical idealist thinkers.
Universities as educational establishments are also simply meant for the development of man. The “Princip der Einheit und Continuität des Unterrichts in seinen natürlichen Stadien” *4 comprises university studies as well. It can be therefore regarded as the highest natural stage of unified and consistent teaching. According to Humboldt, the ultimate purpose not only of science but also of education should be the attainment of the ideal of humanity originating from ancient cultures. Among institutionalised educational establishments, a university as the highest stage had to rise to the task more explicitly than other schools, for it is in the university where the two bearers of the ideal, science and education, literally meet.
The unity of science and teaching in a university forms a basis for the second element of Humboldt’s doctrine of science, that being the principle of unity of research, instruction and study.
In the stages preceding university, that is, in the primary and secondary stages of education, teaching and study are separate processes. The activities of both the teacher and the student arise and are inseparable from their roles. Their inequality is inherent. The teaching process is a mere mediation of available knowledge. Although the knowledge originates in science, it remains in a sense a dead subject or passive material for the learner. This stage in human development however, is a necessary and inevitable precondition for further university studies.
According to Humboldt, there is an essential difference between studying at school and at university. In the university a simple transmission of “ready-made” knowledge from one party to the other, teacher to student, no longer takes place. Instead of a teacher, there is a researcher whose teaching was born out of his or her own research. Nor is the student here a simple recipient of knowledge, he or she is likewise a researcher, albeit much less experienced, methodologically uncertain, and lesser in knowledge, but still a researcher. Both parties are involved in the important pursuit of knowledge out of which science is born. Naturally, the preceding education at school must have provided the necessary prerequisites for this. Therefore, Humboldt stressed the importance of mathematics, history and languages in school curricula which form a basis for the use of knowledge. He also pointed out that quantity of knowledge was not the most essential goal but rather the ability to think and the skills to handle and independently obtain knowledge: “welches dadurch zu erreichen steht, dass man bei der Methode des Unterrichts nicht sowohl darauf stehe, dass dieses oder jenes gelernt, sondern in dem Lernen das Gedächtnis geübt, der Verstand geschärft, das Urteil berichtigt, das sittliche Gefühl verfeinert werde.” *5
In essence, school was the place where it was necessary to develop a firm basis for further independent research skills which form the substance of university study. How then, did Humboldt see the independent researcher in the lecture halls, laboratories, libraries and archives whose academic role depended only on whether his or her place in the lecture hall was on this or that side of the lectern?
Humboldt distinguished a researcher from other persons actively participating in the exploration of the world, that is, from a sensuous person or artist and from an observer or experiencing empiric. In his view, the precondition for the sensuous activity of an artist was fire of the senses (Feuer der Sinne), whereas the success of an empiric’s activity depended on his or her sensory vivacity (Lebendigkeit der Sinns). A researcher was “emsige Untersucher, der sich seinen Weg absichtlich und methodisch vorher vorzeichnet und die Lücken unserer Erkenntnis auf eine gewissermassen systematische Weise ausfüllt.” *6 Thus, in the case of a researcher, the important quality is the certainty of method, or, in the terms of Humboldt’s doctrine of unified science, certainty of principle. The purpose of a researcher is to fill in gaps in existing knowledge and to do so systematically. It is interesting to note that Humboldt uses the expression “in a systematic way to a certain extent” which should be seen as a reference to his position that mere systematic and quantitative completeness do not suffice for actual scientific treatment. In addition to factual completeness, scientific treatment requires an inner coherence in such facts, as well as a cause and effect cognition arising from this coherence. It is the recognition of the internal harmony of the subject under research and its intra-relationships that gives rise to the idea which will in turn be the basis for research of the particular subject. Humboldt claims that only in this way, that is, researching the facts in light of the idea originating from them, can genuine scientific treatment occur. *7
Humboldt’s concept of “researcher” embodies the modern scholar who, from now on, was to occupy all university positions. The researcher represents methodical science which, as knowledge, is inexhaustible in principle. The success of the researcher is guaranteed by his or her ability and opportunity to communicate with other researcher and to contribute to the efforts of individual researchers in the development of science as such. Humboldt uses the word “research” (Forschung) to express this inexhaustibility and unity of effort. The concept abolishes the boundary between study and teaching and retains instead the opportunity for dialogue to carry out an integrated idea.
The principle of unity of research and teaching gives rise to another aspect in Humboldt’s doctrine of science. True science exists only if the subject of research is also taught. Therefore, only universities can be considered truly scientific institutions. Humboldt first expressed this idea in connection with his plans to establish an organisation of scientific institutions in Berlin (1810). He did not for instance actually think it necessary to abolish the academy of sciences or research institutes, but his vision of the university was that of a centre of scientific life. He claimed that the advantage of the university was that it gave researchers of many different levels the opportunity to participate:
“Der Gang der Wissenschaft ist offenbar auf einer Universität, wo sie immerfort in einer grossen Menge, und zwar kräftiger, rüstiger und jugendlicher Köpfe herumgewälzt wird, rascher und lebendiger. Überhaupt lässt sich Wissenschaft als Wissenschaft nicht wahrhaft vortragen, ohne sie jedesmal wieder selbsttätig aufzufassen, und es wäre unbegreiflich, wenn man nicht hier, sogar oft, auf Entdeckungen stossen sollte.” *8
In the university, the professor is not for the student, they both are for science. The professor’s task is to research, to search out science. To advance it, he or she must always question and doubt. Questions and doubts continue to be vigorous by dialogue with students who have even more questions and doubts. An experienced researcher may perfect his or her methodology but his or her preoccupation with a subject matter may bring about a certain insularism or lack of novelty and thus, the more his or her students have to offer him or her. Their minds are yet open in all directions and their questions encompass new spheres.
Despite the emphasis on independent thought and research, Humboldt did not free the university from its responsibility for didactics, or in other words, direct teaching. Teaching however, has its own parameters. A university does not so much facilitate positive knowledge as it does methods of its acquisition; not ready-made theories but research and not only specialised knowledge but the spirit of research. *9
Such education was to give people the freedom that could never be given by theory based instruction and passive reception of narrowly specialised knowledge. People who are aware of the methods of acquiring knowledge can quickly find their way in changing circumstances. They would thus not become slaves of their acquired specialty. They would not be trampled under the feet of time if something in their specialty was to change radically. Indeed, there were radical changes in the society of Humboldt’s time. There was the French Revolution, the industrial revolution, and the development of the middle class etc. All of these cried out for the liberated spirit and at the same time contributed to its birth. In the history of ideas, this is reflected in the theory of individualist liberalism of which Humboldt was of the Kantian school.
The three principal notions upon which Humboldt based his theory of education also refer to freedom. While being educated, man develops toward humanity: “höchste und proportionierlichste Entfaltung der Kräfte des Menschen zu einem Ganzen”. *10 The most magnificent and proportional development of human powers into an integrated whole may also be referred to as the mutual influence between “I” and “the world” in acquiring the experience of the self and the world. According to Humboldt, the ease of such mutual influence requires three elements: solitude (Einsamkeit), variety of situations (Mannigfaltigkeit von Situationen) and freedom (Freiheit). Freedom is the first and a vital criterion for a person’s appropriate development. This is complemented by a variety of situations enabling a person to develop his or her different abilities, to acquire different skills, and to perceive things on a multifaceted level etc. Freedom and a multitude of situations are requirements of human nature from the point of view of a person as a member of society, whereas solitude is necessary for the person to acquire self-experience. In order to become a truly unique person, a person must be conscious about it and obtain an understanding of his or her abilities and opportunities. Yet complete knowledge of oneself is not the actual purpose of man. Rather, it forms the basis which enables a person to actively participate in society in a way suitable for him or her.
For Humboldt, society or association (Gemeinschaft) is inseparable from the idea of the university as a scientific establishment. Research work requires solitude, withdrawal and silence but it becomes science only upon co-operation and contact with many others. Freedom is vital for science, solitude favours it, but a real blessing to science is co-operation and communication:“das geistige Wirken der Menschheit nur als Zusammenwirken gedeiht, und zwar nicht bloss, damit Einer ersetze, was dem Anderen mangelt, sondern damit die gelingende Tätigkeit des Einen des Anderen begeistere und Allen die allgemeine, ursprünglische in den Einzelnen nur einzeln oder abgeleitet hervorstrahlende Kraft sichtbar werde.” *11
The unity of freedom, solitude and association are the elements of Humboldt’s social idea of the university which, in turn, is based upon his idea of scientific education.
Study while researching and research while teaching is the high art that Humboldt demanded from scientific education. It expresses the credo of the modern university. The faith of the modern era in the omnipotence of rationalist thought and the growth of the amount of knowledge accompanying the development of experiential theories were changing the idea of the university which had originated from the Middle Ages. In the 18th century, a great breakthrough took place in this field. The university founded on the principles of the tradition of knowledge and the preservation of existing knowledge and its transfer to future generations became too narrow for the spirit of the era. The Age of Enlightenment can well be called the age of demolition of the old university. Some were even of the opinion that after the invention of the art of printing and with the spread of literacy to all social strata, universities had become unnecessary altogether. *12 It was mentioned above that a specialised higher educational institutions boom occurred, but this trend in higher education did not become overriding, it simply became an alternative to the new university.
The idea of the new university as expressed in the works of many thinkers can be formulated as follows: the production of knowledge instead of the tradition of knowledge. The old format of university was given new substance. No longer was it an institution of ready-made knowledge but rather, one disseminating scientific spirit. Humboldt stood out among his contemporaries promoting scientific education in that he himself had the opportunity to put his theory into practice. During the years 1808 to 1810 he was responsible for education in Prussia. The southern part of the country had fallen to the Napoleonic invasion and the war was still going on. During this difficult time the King and his assistants had the courage to establish a new university in Berlin. Humboldt was assigned the task to implement the decision, both substantively and administratively.
Of the three Prussian universities, Halle was in occupied territory and had been closed. The University of Berlin was therefore to, in a way, substitute for Halle. From the very beginning however, Humboldt knew that the new university should not become a provincial university like those in Königsberg and Frankfurt. Indeed, it was not to be an ordinary Landesuniversität but the embodiment of the modern ideal of scientific education. It was to become a place for the free scientific mind and the first university where one could study through research and do research by teaching. The choice of the faculty was to serve the same purpose. Humboldt was looking for those men who hopefully could teach in a scientific way and who had the ability to inspire their audience to independent thought and research. Thirty-one year old Friedrich Carl von Savigny (1779-1861) was invited to establish the Faculty of Law. Savigny was becoming the founder of the new historical school of jurisprudence. His vision of teaching jurisprudence remained authoritative virtually throughout the last century and also in universities other than Berlin. Even if the times following Humboldt and Savigny have, to an extent, dimmed their ideas, it does not yet mean that nothing of their original ideas is relevant today.
2. Friedrich Carl von Savigny and the Idea of Scientific Education in Law
Just like Humboldt’s ideal of education is directly connected with his teaching of science, so is Savigny’s treatment of the nature and tasks of legal education based on his vision of jurisprudence. The vision, in turn, is in a direct relationship with Humboldt’s teaching.
In Savigny’s view, the primary task of both a legal scholar and a practising lawyer is to find the organic principle or internal unity of law. The cognition of such unity helps to see both the historical and valid law in the proper light: to recognise what is integral to it, to distinguish what has found its way into it due to oversight or legislative usurpation, to explain the character of individual phenomena and their interrelationships etc. *13 At first glance, the requirement of a unified and omnipotent principle in jurisprudence and in law seems to belong to the era of rational law. Yet it was namely the historical school led by Savigny which became known as the destroyer of the absolutism of that doctrine, and the novel aspect of it was that it was not human or divine intellect but the history of law itself that Savigny viewed as the source of the above principle. Thus, the task of jurisprudence, according to Savigny, is to research all the material accumulated throughout the history of law back to its historical origins in order to recognise the internal organic principle of law. The object of such research is the historical sources of law. In the Germany of the early 19th century, the valid law was classified according to its origin into the three categories of German common law, Roman law and, through the absolute power of later legislators, the local land or town laws. It was research of all of these back to their historical roots which Savigny required from jurisprudence.
Yet, for Savigny, the ultimate goal of jurisprudence was not a truthful rendering of the historical origin and development of all valid law. This was only a certain necessary intermediate stage encountered when approaching the objective of jurisprudence. As a historical phenomenon, a particular legal situation is determined by its origin; the concepts used in jurisprudence today originate from yesterday or even the day before yesterday. Thus, a law professional, no matter whether a scholar or legal practitioner, can be regarded as a prisoner of historical concepts. Or as Savigny stated: “Wie die Sache jetzt steht, besitzen und beherrschen wir diesen Stoff nicht, sondern wir werden von ihm bestimmt und getrieben nicht wie wir wollen”. *14
Savigny did not see any other effective way to dispose of the dictate of history than to counter it with full awareness and a researching mind. To grasp the historical background of legal concepts and doctrines and their relationships, to see a whole in details and to recognise the organic system was the genuine goal of a legal scholar. In Savigny’s opinion, Roman jurists had mastered the art best of all. Savigny saw a two-fold benefit arising from research of Roman law. The first benefit was comprehension of the material originating from Roman law together with its changes which was to be the reason for research of legal history. The other benefit was that the works of Roman jurists offered a very good example of how legal thought should move from the particular to the general and vice versa, how concepts are handled, how a theoretically clear-sighted doctrine from living examples is developed, and how to deduce, from theory, a correct solution for a specific real life case. In sum, Savigny believed that one could learn from Roman jurists how a genuine jurist should think.
The relationship between Savigny’s ideas and those of Humboldt can also be observed in how Savigny sets goals for historical jurisprudence. Savigny held that a research of history would provide a modern jurist with the skills to turn historical concepts and doctrines into tools and to not retain them as fetters. For Humboldt, the real purpose of research of history lay in focusing one’s sense of reality for obtaining a correct understanding of the contemporary world and, as a final result, for shaping and accomplishing the ideal of humanity. *15
Humboldt’s ancient ideal of humanity corresponds to Savigny’s idea of a bar of free jurists, the development of which was to be contributed to by legal thought based on historical consciousness. Legal thinking, obtained through the historical method, and its realisation was not meant to remain a sphere of scientific monographs or individual scholars. It was to become a common benefit of all jurists. Savigny believed that by subjecting both legal theory and legal practice to uniform methods, theory and practice would come closer to each other, by theory becoming more practical and practice more theoretical. In this way both legal scholars and practitioners would reach the formation of a unified bar of jurists whose freedom could not be restricted by the arbitrary will of a historical or contemporary legislator.
However, one should not suppose that a definite deadline for the final implementation of the idea could be fixed. Just as Humboldt viewed science as such in a continuous process of development, never completely “ready”, so Savigny viewed jurisprudence. Savigny stated: “Ganz erschöpfend und völlig abthun, so dass kein Weiterkommen möglich wäre, lässt sich eine würdige historische Aufgabe niemals, auch nicht in tausend Jahren gelangen”. *16 Yet the impossibility of reaching a perfect and complete solution would not mean that the right of pursuing it could be given up. On the contrary, every learned and skilled jurist had to keep aspiring toward greater insight and to a clearer understanding of the matter.
Obviously a bar of jurists who were familiar with legal history and had mastered the juridical method of the Romans could not come into being in a day. The main work was done in universities where students studied to become jurists. Perhaps it would be more correct to say, that based on the theories of Humboldt and Savigny “students researched to become jurists”. According to Savigny, the main essence of legal education lay in the independent research of primary sources. In a lecture hall, a student could only obtain the necessary basis for such research. Above all, this basis would be a profound knowledge of legal history so that a young researcher would be able see every concept, norm and doctrine in its historical context. The point could very well be made that this is the only part in the sphere of positive knowledge that the student had to master for his or her further independent research. It was the only way for the student to approach the ideal of the profession.
Certainly, no one would expect a person who was taking his or her first steps in jurisprudence to immediately become a successful researcher. It was the task of a university professor to direct and advise the student on his or her way. In Savigny’s opinion, a professor’s worth did not depend on his or her own contribution to science, be it a great discovery or a new method, but much more on how good the professor was at delivering knowledge and teachings through the scientific method, offering the audience living examples about the way of gaining results. Such an immediate contact with scientific thinking was supposed to make scientific thinking a necessity for students. This was even more so if the professor had sufficiently mastered the art of teaching and desired to take the audience with him or her, in reality, to the point of acquisition of scientific knowledge. A direct personal contact between the professor and the student is of great use, but it is not a vital precondition for obtaining the scientific method. The willingness and ability for independent research on the part of the student is much more important. The professor can only indicate how such research can and should be done. *17
Savigny’s requirement that students independently participate in the shaping of their education is almost an imperative. Just as a professor should be free to choose the contents and method of the discipline he or she teaches, so should a student have the freedom to choose what he or she wants to study and research, and the professor whose course he or she wants to attend. Of course, this is possible only when several professors give lectures on the same subject. In many universities all over the world such an option is not unusual. Beyond the subjects of his or her narrow specialty, according to Savigny a student was to have time for subjects of other specialities, particularly for those in the Faculty of Philosophy. As suggested, a law student should not spend more than 13 to 15 hours per week on his or her specialty or else the student would not have any time left to become acquainted with views in philosophy, history and philology. *18 On the one hand, Savigny could have meant that knowledge in the fields of philosophy, history and philology were obligatory for a jurist. On the other hand, one should not forget that according to the university ideal of those days, the teaching of these subjects was to also consist, above all, of the teaching of research methods. Thus, contacts with the methods of other sciences could be regarded as experience with a variety of situations, a requirement which Humboldt set for education in general. Naturally, it is immediately clear that the introduction of methods of philosophy, history and philology into jurisprudence is, if not vital, then at least useful for opening new horizons and achieving a better understanding of the subject matter.
As in a Humboldtian university in general, a law faculty was also not expected to offer ready-made knowledge about the positive law. Therefore, Savigny did not think it necessary to devote more time to the teaching of the valid law of the time Allgemeines Landrecht für die Preussischen Staaten (1794), than was absolutely necessary for a general introduction. Of course, a future jurist had to be able to apply the law, be familiar with its system and the interrelationships of individual provisions, and be able to interpret the concepts and rules. However, Savigny held that this did not have to be studied on the basis of the local Landesrecht. Firstly, he considered the Code to be not good enough to serve as the basis for obtaining the legal method. Recalling the casuistry and almost ridiculous thoroughness of the Allgemeines Landrecht, one cannot but agree with Savigny’s opinion on this point. Secondly, the same spirit of individual liberalism that was mentioned above in connection with Humboldt can certainly be observed with Savigny. A jurist who had based his or her legal method on Roman law could use the method in the implementation of any valid law. A jurist’s professionalism could not be limited by the scope of the territorial validity of a local law. Similarly, a radical change of the legal system by the arbitrary will of a legislator would not necessarily bring about a situation where the jurist would have to give up all his or her hitherto knowledge or even retire. A legal method firmly acquired in university would help the jurist for whatever new law was introduced.
In the Germany of the 19th century, the majority of jurists became public servants. In this function it was essential that they have a sound knowledge of those aspects of the valid law which were necessary for their professional activities. According to Savigny, the acquisition of this kind of knowledge and practical skills of a jurist could be left completely for the period of supervised practice. *19 This institution goes back to the time of the state reforms of Frederick II. All candidates to the office of a judge, and indeed to any state office, had to graduate from a university law faculty and pass a required exam, and then undergo further training under the supervision of practitioners. Only after that, could such candidates take the final public servant exam and begin their work in the respective offices. The same principle is effective in Germany today. A Volljurist is one who has passed both state examinations, first after completing the university course and again after the period of supervised practice. In England too, legal education follows the same scheme such that first a general theoretical background is acquired and after that, practical skills are developed under the supervision of practitioners.
In conclusion, Savigny required from scientific legal education only that it lay the foundation for the free development of a bar of free jurists and that every have personal freedom to shape himself or herself into a worthy member of the bar. According to Savigny, a couple of years would have sufficed for the formation of such a foundation, supported by scientific preparation. As Savigny stated: “Nämlich hinreichend nicht zu vollendeter Gelehrsamkeit, was ohnehin kein vernünftiger Mensch von irgend einem Universitätsunterricht verlangen wird: wohl aber hinreichend, um in den Quellen zu Hause seyn, um sie selbst lesen zu können, und um neuere Schriftsteller unabhängig und mit eigenem Urtheil zu lesen, und ihnen nicht mehr preis gegeben zu sein.“ *20
The historical school led by Savigny achieved a dominant position in German jurisprudence of the 19th century, as did Savigny’s ideas about legal education. Research of Roman law became the natural starting point for anyone beginning to read law. The methods acquired on this basis were applied in other spheres of law. A similar pattern of legal education soon spread elsewhere, including the Faculty of Law of the University of Tartu.
3. University of Tartu and Scientific Legal Education
The history of the University of Tartu goes back to the year 1632. The activity of the university which was founded by order of the King of Sweden Gustavus II Adolphus ceased during the Great Northern War in 1710. The university was re-opened about a century later, in 1802, as a university of the Baltic provinces of the Russian Empire. However, the University of Tartu (Dorpat) did not become a mere provincial university as it had been under Swedish rule. Its influence proved to be much more wide-spread. The Alma Mater became the place which supplied teaching staff for other Russian higher schools. It also became a certain mediator helping European scientific trends reach Russia. This was mainly true as far as German science was concerned as the University of Tartu was essentially a German university by its language of teaching and the majority of its professors were either Germans or had been educated in German universities.
Thus, it is only natural that the Humboldtian trend transforming universities in Germany soon reached a local German university of the Russian Empire. The new by-laws of the university of 1820 also reflected this trend. For example, in 1802 in Faculty of Law a separate professorship was founded for all three local provincial laws. In 1820 the professorships were consolidated into one professorship for local provincial law. This made more space for subjects essential for methodology such as Roman law, history and theory of law and German law. The latter was meant to have the same function as Roman law, that is, to obtain the legal method in general. Structural changes were followed by changes in substance as outstanding legal scholars were invited to fulfil professors’ positions.
Positive results from the changes did not take long to appear. First, the scientific review of local provincial laws gained momentum, whereas during the period of the actual provincial university in the years 1802 to 1820 the review did not progress at all. The most outstanding representative of the golden age of provincial law and the codifier of the local private law was Friedrich Georg von Bunge (1802-1897). Professors of the University of Tartu Johann Philipp Gustav Ewers (1779-1830) and Alexander Magnus von Reutz (1799-1862) were pioneers of the historical treatment of Russian law. Professors of International and Constitutional Law August Michael Bulmerincq (1822-1890) and Carl Magnus Bergbohm (1849-1927) won European wide recognition. Besides Ewers, all those mentioned above were former students of the Faculty of Law of the University of Tartu. Only these few examples are sufficient to show convincingly that the new direction toward a scientific legal education proved fruitful.
The same may be said about German jurisprudence of the 19th century in general. This is a period which can be called the era of world renown for German jurisprudence. Even today, many nations still exhibit in their legal systems, the consequences of the reception of German jurisprudence based on its splendour and international attraction at the time. The Estonian Civil Code which is being drafted at present is also based on the five-volume private law system that grew out of the doctrine of Savigny and the historical school. Thus, Estonian positive law again has a direct link with German jurisprudence of the 19th century, although the link cannot but be somewhat fragmentary and hazy. Disposing of the Soviet system of concepts and schemes of solutions is very slow. On the one hand, the law of Estonia today is being determined by the current great transformations in Estonian society, while on the other, Estonian law is developing through its history which still fetters Estonia by former concepts and patterns of thinking. The same is true about legal education.
In the second half of the 19th century the central government of the Russian state began to radically restrict the autonomy of the Baltic gentry. For the University of Tartu this meant that Russian became the language of instruction (as of 1889) instead of German as it was before. Even earlier, the invitation of foreign lecturers to Tartu had been forbidden, but now the University’s autonomy in this matter became even more restricted. Lecturers were now appointed by the Ministry of Public Education. The university thereafter only played a consultant’s role. The aim of the Ministry was to turn the University of Tartu back into a provincial university which would, following the prescribed instructions, produce jurists and other civil servants and intellectuals needed by the state. However, the scientific nature of legal education suffered very little as a result of these changes. The extent of local provincial law was reduced however and in its place the relative importance of the general law of the Russian Empire increased, but the teaching of Roman law remained as essential as it was before and the historical treatment of jurisprudence remained its methodological basis. By the end of the 19th century, the Humboldtian ideal of education with an emphasis on classical languages and, in jurisprudence, on Roman law had reached a dominant position in the universities of the Russian Empire as well. Moreover, the era of the so-called Russian university in Tartu was the only period in which the Faculty of Law had a full professorship for the philosophy of law.
Due to the above, the teaching staff changed radically. A portion of the German lecturers (C.M. Bergbohm and W.E.Rohland) departed for Germany, while another portion retired on pension. After a couple of semesters, of all the former lecturers of the Faculty of Law, only Johannes August Engelmann (1832-1912) remained, being an acknowledged researcher of Russian civil law and civil procedure as well as a populariser of the Russian legal system in foreign literature.
The Ministry of Public Education ensured that the lecturers appointed to Tartu had graduated from Russian universities elsewhere. The Faculty of Law of the University of Tartu became a springboard for young Russian scholars in their careers to the larger research centres of Moscow, St. Petersburg and Kiev. Thus, for many of them, their stay in Tartu was a most intensive period of research. The generally youthful Faculty of Law was a real alliance of researchers, just like Humboldt’s vision of an ideal university. From the professors who worked at the University of Tartu at that time, several became internationally recognised: the historian of international law Vladimir Grabar (1865-1956), the historian of Russian law Mikhail Dyakonov (1855-1919) and the Professor of Constitutional Law Aleksandr Filippov (1855-1927), both future members of the Russian Academy of Sciences; and the philosopher and Professor of History of Law Fyodor Taranovsky (1875-1936) who was elected a member of the Serbian Academy of Sciences and a correspondent member of the Bulgarian Academy of Sciences.
The Imperial University of Tartu closed down in Tartu during World War I and evacuated to Voronezh in 1918. In the same year, the Landesuniversität was opened in Tartu founded on the initiative of the German military authorities and functioned from September through November. Since the Wehrmacht was soon forced to retreat from Estonia, the period of activities of this German university remained very short.
In 1919, the first Estonian national university was founded in Tartu. The period of 1919 to 1940 of the University of Tartu can be called the time of birth of Estonian legal education and jurisprudence. Of course, the creation and development of each took time. In the early days of the national university there were very few Estonian jurists whose qualifications corresponded to that of a university lecturer. At that time only three Estonians belonged to the academic staff of the Faculty of Law: Professor of Constitutional Law Nikolai Maim (1884-1976), Professor of International Law Ants Piip (1884-1942) and Professor of History of Law and Civil Law Jüri Uluots (1890-1945). Other professors presented their lectures in either Russian or German. However, there is no reason to suppose that the quality of the content of the lectures suffered from it. Traditionally, teaching the legal method remained the most important aspect. In addition to training specialists who were needed in the legal profession of the young national state, much attention was paid to the education of academic staff. The first LL.B. theses were defended in the second half of the 1920 and doctoral dissertations followed in the 1930s. The University provided degree candidates the opportunity to study under the supervision of the most outstanding scholars of Europe. For example, in the branch of public law, the position of the Kelsenists dominated as all young Estonian public law specialists beginning with Artur-Tõeleid Kliimann (1899-1941) had studied under that great law theoretician for a period of time.
At the same time, the newly independent state was drafting its own legislation. Directly or indirectly, almost all the professors of the Faculty of Law participated in the process. On the one hand, it meant an inevitable connection between theory and practice, while on the other, the abundance of practical tasks was obviously one of the reasons why Estonian jurists published few thorough theoretical works during the period. Exceptions to this however are Kliimann’s “Theory of Administrative Documents” (1932) and “Legal System” (1939) which were developments of Kelsen’s earlier legal theory in the spirit of the phenomenological school. However, the situation at the end of the 1930s in the Faculty of Law of the University of Tartu proves that Estonian-language legal education was already standing on a firm theoretical foundation. The lecturers who had graduated from the University in the 1920s were in the prime of their creative powers. The legislative system had become more stable and it was possible to delve into metaphysical. From the jurists who studied at the University of Tartu at the time, the legal philosopher Ilmar Tammelo (1917-1982) earned the widest recognition.
Regrettably, Estonian jurisprudence which had bloomed in the period between the two world wars did not see its fruits. In 1940, the Soviet occupation cut ruthlessly through all earlier development. The laws of the Republic of Estonia were declared null and void in corpore and a thorough “purge” was carried out in the judicial system. The curriculum for the whole of the Soviet Union was to be followed by the University of Tartu as well. Many of the former lecturers were dismissed. Those who remained had to adjust their teaching to Marxist-Leninist legal theory which did not tolerate any other alternatives. During the German occupation in 1941 to 1944, the lecturers who had stayed on in Tartu were restored to their former positions and the University continued its work. Yet this period cannot be considered as a continuation of the University of the period of independence from 1919 to 1940. It was a war time university in the rear of one of the enemies who had set its mark on the instruction as well.
In 1945, with Estonia once again under Soviet occupation, the University of Tartu and its Faculty of Law continued to work. During the first decade under Soviet rule, the action begun in 1940 was completed with the faculty being “purged” once again. Before this however, very few lecturers and students remained as the best of them had fled Estonia as war refugees. After the war even those few who had remained fell victim to the Stalinist repressions. Although the language of instruction continued to be Estonian, the content of teaching was determined by regulations from Moscow. Thus, the first prerequisite for scientific education, that being academic freedom, was done away with. Fortunately for the University of Tartu, it was listed among the leading higher schools of the Soviet Union and this enabled considerably greater integration of sciences. In legal education, this was expressed in a lower degree of specialisation than was common in higher legal education elsewhere in the Soviet Union. As it happened in all Eastern Bloc countries at the time, so it was in the Soviet Union that jurists were trained at specialised institutes to fill offices in the prosecution service, courts of law or other government and administrative bodies. In Estonia however, the Faculty of Law of the University of Tartu still offered higher education in law and therefore, all the specialities remained unified and specialisation concerning some specific subjects took place only during the final semesters of the programme of studies.
Together with the loss of academic freedom, other elements of scientific education disappeared in the University of Tartu of the Soviet period. Above all, the lack of alternative treatments besides the Marxist doctrine must be noted. The variety of situations required by Humboldt is clearly beyond the framework of such a teaching paradigm. The Marxist conception of law, canonised in the course of the Soviet theoretical discussion of law in the 1930s, was the starting point in jurisprudence: law is the will of the ruling class in the form of legislation enforced by the coercive measures of the state. Such a positivist definition of law cannot but be subordinate jurisprudence to positivist law. The little which was left of the freedom of jurisprudence, already badly restricted by the positivist treatment of law, was almost annihilated by the first half of the official definition of law that in the Soviet Union “the will of the ruling class” was expressed by Communist party ideology. The limits set by Communist party ideology were sometimes even narrower than the ones of the positive law.
The foregoing is the historical heritage of the Faculty of Law of the University of Tartu when it entered a new era in the restored Republic of Estonia in 1991. The ideological restitution mentioned at the beginning of this article is, among other things, also expressed in the openness of the University. On the one hand, such openness means direct contacts with scientists all over the world. Contacts previously were worse than hampered due to the “iron curtain” which lasted for years. On the other hand, the openness of the University means restoration of academic freedom, in that, different scientific views in teaching are permitted. It is most important that one should be clear about what the bases of scientific legal education must be in a country which once again has found its place in the family of democratic states of Europe.
4. An Appeal of our Times to Scientific Legal Education
In addition to the above advantages offered to a jurist with an insight into the historical origin of his or her discipline, Savigny suggested one more. Namely, a historical mind helps to protect against a major illusion of which individuals, nations and entire epochs tend to fall victim and that is, the practice to consider something inherent to oneself as common to all humanity, and in this context to regard oneself as a genuine and unique, as well as a new and original embodiment of humanity. *21 In reality, the period in which people live is never as novel and special as they tend to think and history has a lot to teach them.
A thorough and detailed comparison of early 19th century Germany to present-day Estonia is beyond the scope of this article and not necessary. Yet, a few conspicuously similar aspects can be highlighted. Firstly, the disintegration of empires is considered. In 1991, Estonia broke free of the Soviet Union as well as from the obligation to live subject to its imperial legal system. Similarly, the year 1806 denotes the end of the centuries-long Holy Roman Empire of Germanic Peoples. At the time, the Germanic states had to decide independently their path of further legal development, just as Estonia must do presently. The eras and events are comparable also because the task of laying the foundation for a free market economy was something that Germany in the 19th century had to accomplish, as did actually everywhere else in the civilised world, and it is a task that Estonia faces today. On the level of ideology, it is accompanied by individualistic liberalism in one form or another. In a sense, it is of course, a kind of counter-reaction to the preceding situation. The society of the 19th century disposed of the importunate patronage of enlightened absolutism and desired to know itself as a free society of free ethical individuals. After escaping the fetters of the totalitarian and all-encompassing Soviet state, Estonian society of today has declared the same wish and need.
A successfully functioning market economy and democratic state can only rely on a society of free individuals. One of the bases for the development of such a society is freedom in scientific education in universities. To date, the legislative basis for free scientific education has been created in the Republic of Estonia. Section 38 of the Constitution declares the freedom of science and arts, and freedom in teaching them. The same section of the Constitution provides the principle of autonomy of universities and research institutes, which is reiterated in § 1 of the University of Tartu Act (16 February 1995) and specified in § 3 of the By-laws of the University of Tartu (1 June 1995). Although the By-laws do not contain separate provisions concerning scientific freedom, this does not imply a restriction of the respective constitutional right.
At present, a jurist’s freedom is based on nothing else but a perfect command of the legal method. To achieve this, lectures on the theory of methods and textbooks are certainly of assistance, yet these alone are not sufficient. Lectures and textbooks are a generalised summary or core. The legal method is acquired essentially through the legal theory in specific subjects, provided that the teaching is based on the application of methods of jurisprudence of the particular juridical matter. Therefore, even more important than a course of methods is the teaching of legal theory in subject areas in a law faculty. Of course, this is so only on the condition that it focuses on the acquisition of truly method-consistent thinking and not just a paraphrase of the valid law. As a result, the ridiculous excuse that it is impossible or difficult to teach a certain discipline because the respective Act has not yet been passed is eliminated. Obviously, a legislative system is fragmentary while in the early stages of its establishment, but that does not mean however, that a corresponding branch of law does not exist in jurisprudence. On the contrary, the playground is the larger and the obligation to tackle these gaps the more demanding, and last but not least, the more colourful are the ways of opening the whole extent of the effect of legal methods for the student.
Secondly, a future jurist has to acquire an understanding of the systematic nature of law at university. This should not happen however, by studying the scheme of a legal system from the blackboard or a handbook. This scheme should be hatched, so to speak, under the student’s very eyes, with all the answers to all his or her queries of why and how, and the one who gives these answers need not be the lecturer alone but also the student himself or herself. This is the only way to obtain a real insight into the nature of single elements of the system, their interconnections and natural place in the whole. On the other hand, only a comprehension of the whole gives the ability to treat single questions correctly.
There is a direct connection between the comprehension of the nature and harmony of a system and the cognition of law as a whole and the basic principles of single branches of law. Everything emphasised earlier holds true for this as well. A professor’s task is not to give an exhaustive presentation of the respective principles, but much more importantly to show how the principles are deduced and what they are good for.
An integral aspect of the teaching method discussed above is the historical treatment of law and specifically, in the way Savigny postulated it. A course on the history of law in its own right can offer the necessary basis for such a treatment, consisting of the background of legal history and of general cultural-historical relationships with law and jurisprudence. The proper area for the historical treatment of law in Savigny’s sense is, as before, legal theory. Only here can the history of law serve its real purpose: to liberate a jurist from the dictates of existing conditions and doctrines and turn them into his or her tools of conscious activity. There is probably no need to emphasise that the need for it is particularly acute in a legal culture which is undergoing profound change.
The historical treatment of law is closely connected with comparative law. If the above principles are essential for a jurist, above all, for successful activity in the domestic legal system, then contacts with the legal systems of other countries make the use of the comparative method vital. Again, comparative law is not only knowledge about systems elsewhere since no matter how long or profound a university course is, it can never give a complete survey of them. A university can only lay the foundation as to the method of comparative law whose application should develop into an inseparable component of everyone’s independent research.
In conclusion, the task of a university today cannot consist of teaching someone until he or she becomes a jurist. The most a university can offer is the basis for an independent pursuit toward the ideal of a bar of free jurists. Thus, the content of the scientific education concept provided in the University of Tartu Act depends only on the joint efforts of independent professors and students. It is only in their power to reach knowledge and science through research.
*Throughout this article, science and scientific are used in the German sense of the words (Wissenschaft, wissenschaftlich) and cover not only natural and physical sciences but science in its most general meaning.