Jurisprudential Reception as a Field of Study
1. Reception in Law and Jurisprudential Reception
In the theory of law, reception is chiefly defined as the transfer of a legal phenomenon of a different legal culture, other area or other period of time to a new legal climate.
Studies of reception underline several conditions which are essential for reception.1 Firstly, is the awareness of the recipient that its activity is truly the adoption of an element of law that is, in a legal-cultural context, hitherto alien (or already forgotten). The matter is further specified on the basis of whether such awareness is characteristic of the whole recipient society or only the initiators of reception. For example, the “simple representatives” of Germanic tribes probably had no idea of the existence of a written legislation on their arrival to the territory of the Western Roman Empire and its vicinity. Equally probable is that they were unaware that the written barbaric legislative systems at that time based on their own traditional law also contained Roman and ecclesiastic norms. On the other hand, there is no reason to suppose that the Germanic kings whose efforts to establish written law were supported by the church would have been similarly unaware of the existence of norms alien to their peoples in those collections of norms. Without a doubt, the pathos of establishing written law was different with different Germanic tribes. The prologues to the barbaric collections of norms2 contain evidence of the fact that their rulers were inclined to copy the mentality of the more prestigious Roman culture and its emperors’ legislative activities. Consequently, the fact of awareness makes it possible to classify this process as reception.
Voluntariness of the process is also considered an essential condition for reception. No genuine reception occurs if a legal phenomenon is imposed upon another nation by force. In this regard, the establishment of the Napoleonic Code in occupied areas is usually referred to as an example. The Baltic States need not look far for their own examples. Repeal of the whole of former legislation in 1940 and the establishment of Soviet law is one of the clearest examples of imposed reception. Under certain conditions imposed reception may transform into a voluntary process and thus become genuine reception. The areas occupied by Napoleon, where the Code continued wholly or party in force after French occupation, serve as an example. The voluntary nature of this reception is well proved by the struggle waged in the areas of the left bank of the Rhine against Prussian central power3 for the continuation in force of the Code Civil. The Baltic States occupied by the Soviet Union also gradually attained a voluntary or at least reconciled reception of Soviet law. This is primarily true with regard to legal science. Compared to legal practice, the opportunities for the latter to interpret the legislation of the time while partly ignoring its main dogmatic trends were perhaps greater than legal scientists chose to admit. This is especially true concerning the period following the Stalinist dictatorships when scholarship diverging from official ideology did not necessarily mean a prolonged trip to Siberia.
The foregoing does not mean that the transformation of imposed reception into voluntary reception should be an inevitable historical reality everywhere at any time. The countries of Northern Germany for example, re-established their former legislation after the end of Napoleonic occupation. The same may be noted in the Baltic provinces of Sweden which were incorporated into the Russian Empire during the Northern War. This transition was legally formulated by the capitulation of the local estates in 1710 which was affirmed by the Nystadt (Uusikaupunki) peace in 1721. One of the most important demands which the estates presented to the Russian tsar was restoration of their former privileges which had been diminished by the absolutist governors of Sweden.
Legal reception has been classified on the basis of various principles. It is possible to proceed from the reasons which serve as motivation for the transfer of alien legal phenomena. In this regard, veneration reception is one example which occurs if alien norms, institutes or a whole system is adopted for their venerated position and prestige of cultural background. The prestige of the cultures of the ancient Greeks and Romans was certainly an important factor which motivated the reception of Roman law in medieval Europe. An altogether different motivation is the basis for necessity reception which occurs where there is an apparent need for a change of legal system in one culture and another existing culture provides an opportunity to satisfy the need. However, the classification of reception into veneration reception and necessity reception is somewhat contradictory. It is obvious that veneration reception can never occur if there is no need for it in the recipient culture and, in the case of necessity reception, it is only natural that legal phenomena of a prestigious origin would be adopted. Therefore, these aspects do not constitute classes of reception in the strict sense of the word. The venerated status of and need for a transfer of a certain legal phenomenon should therefore be considered essential conditions for reception like the awareness and voluntariness conditions of the process mentioned above.
The distinction between reception and transplantation4 made in studies of reception must also certainly be acknowledged. The latter is a process whereby a legal phenomenon transfers to another geographic area or culture together with people. This process occurred when Germanic law reached Western and Central Europe during the Age of Migration. A transfer of the law of a mother country to overseas lands during their colonisation could also be considered legal transplantation. However, such an interpretation of transplantation seems too restrictive. A situation where a norm of another legal culture is established in a different legal climate by enacting legislation regardless of its original implementation background may also be interpreted as a mere transplantation of a legal phenomenon. Transplantation also occurs where a legal theory is taken to another geographical area. As in the case of imposed reception or voluntary reception, an original transplantation may become true reception: of course not among the group or nation which is the carrier of transplantation but among the legal culture surrounding it in the new area. The transformation of transplantation into reception is perhaps of greater significance in the history of legal science than it is in positive law. Therefore, this distinction is important from the perspective of the purpose of this article and will be considered with in more detail below with regard to the structure of jurisprudential reception.
The concept of reception is of itself much broader than it seems at first glance. Even the term ‘legal phenomenon’ is something which sounds ambiguous. In earlier studies, reception meant mostly the reception of norms, that is, the transfer of a legal norm or a body of norms. Consequently, the reception of Roman law in Europe was understood as the transfer of norms of Roman law and, to be more precise, of the codex Corpus Juris Civilis of the time of Justinian to various legal cultures of Europe. However, historians of law have long since acquired a nearly unanimous opinion that during the reception process which grew out of mediaeval universities it was the scientific method with which law was treated, the ius commune,5 and not merely norms of Roman law that was adopted by other cultures. Hence, the process may also be considered as methodological reception in which the spread of legal doctrines and theories plays an especially important role. It is quite clear that the spread of methods brings about the spread of their conceptual and systematic basis. According to F. Wieacker, the essence of reception (at least in private law or ius commune) is indeed systematic reception.6 In this regard, system not only refers to a certain classification of legal material, but an internally consistent and systematic approach to law. More recent studies in the history of law confirm F. Wieacker’s views. As well, it is not only the spread of the ius commune in Europe that should be interpreted as methodological and systematic jurisprudential reception. The same is also true concerning pandectics (in German Pandektenwissenschaft, Pandektistik)7 which can be traced back to the German legal science of the 19th century.
Nevertheless, the distinction between the reception of norms on the one hand and the methodological reception and systematic reception on the other is also fairly relative. The transfer of a legal norm into a different context of another legal culture without the background of the legal methodology and systematic approach of the source culture may not result in the reception of such norm. Rather, this should also be considered an instance of transplantation as such norm may not be applied at all. For instance, the transfer or reception of the system which prescribes fines proportional to the offender’s daily income and which is widespread in continental European criminal law has not yet taken place in present-day Estonia, even though this transition was provided for by an Act in 1992.8 Courts still impose fines which are not proportional to the particular person’s daily income but according to the minimum wages. Hence, it is obvious that the assessment of the existence of reception actually depends on the concept of law. According to the approach of positive law, law and legislation are the same. This approach would no doubt assume that the reception of a norm occurs with a mere legislative enactment of a norm of a different region or period of time. Such approach may have satisfied a scholar of reception at the end of the 19th and the beginning of the 20th century which indeed was the time when the theory of reception of norms was created.
The modern theory of law however, does not equate law and legislation. Regardless of the school, the clearly prevalent opinion seems to be that justice (above all in American law) and legal dogmatics (prevalently in continental Europe) should be considered as much a part of law as legislation. Thus, the study of reception should direct its efforts beyond the normative or legislative level into the area of implementation and the processes occurring therein. R. Schultze whose approach to this issue9 is considered an outstanding contribution to the study of reception has set the task for reception researchers of the Code Civil as follows: “Der rechtshistorischen Forschung erwächst daraus die Aufgabe, nicht allein die Verbreitung des französischen Zivilrechts in Europa zu konstatieren, sondern den unterschiedlichen Verbindungen des einen Gesetzbuches mit den vielen jeweiligen Rechtstraditionen nachzugehen und nach den jeweiligen eigenen Entwicklungsbedingungen und den spezifischen Fortentwicklungen des Rechts gerade aufgrund der Anpassung des französischen Gezetsbuchs an die einheimischen Verhältnisse zu fragen”.10
Upon the implementation of a norm in the environment of a different legal culture, its content and effect may diverge from its implementation in the culture of origin. Such modifications are often unpredictable and may even be undesirable. Recipient legislators are generally interested in a similar implementing effect as has been observed in the country which is followed as an example. In this case, the simultaneous reception of legal dogmatics is of great importance. It is also possible that the judicial practice of the “mother country” whence a norm originates is established as binding on the recipient areas. Commonwealth law is an appropriate example with its title referring to English case law as being the law of all British colonies. As judicial precedent is far less binding on subsequent court cases in continental Europe, the primary component being transferred is, above all, legal dogmatics. Although dogmatics is closely connected to the method and system of a corresponding legal science, it is not jurisprudential reception and it should not be considered as belonging to the area of positive law.
In fact, it is also possible that only a jurisprudential approach, that is, a method and system is adopted, whereby the reception of norms need not take place at all. What occurs is that a method of a different historical period or culture is used for interpretation and transformation of currently valid legislation. Returning to previous examples, the European-wide spread in the second half of the last century of the methodology of the German Pandektistik and the closely related Beriffsjurisprudenz should be mentioned in this context. The earlier reception of Roman law with the ius commune as the scientific methodology for the treatment of law partly contained the reception of norms. However, the reception of the German Pandektistik was almost always a pure reception of a method and system in other countries. It is this kind of reception which is defined as jurisprudential reception in this article.
2. The Structure of Jurisprudential Reception and Related Research Topics
As with all reception, jurisprudential reception is a very complex and heterogeneous phenomenon. For this reason, it is necessary to assume a somewhat schematic approach which should assist the reader in easily following the train of thought of this article. It must be kept in mind, though, that every scheme tends to simplify the facts and diminish the intricate richness of reality. The following attempts to illustrate the conditions for and phases in the spread of a theory upon the occurrence of which it is correct to identify as reception.
Application in a new area
The first element of the schematic chart may be represented by written sources or individuals. As jurisprudential theories mostly spread through academic circles, the personal carriers, or individuals in other words, should never be underestimated. Both the creators of original theories as well as those who pass on a theory created by others are equally important. The essential thing for the carrier is to present the theory either in writing or orally.
Thus, the first condition for jurisprudential reception and the basis for its later development is the presentation of a theory, or repraesentatio. Even the study of this phase may prove problematic. Written sources pose fewer difficulties: they either do exist or do not exist. However, it is difficult to ascertain retrospectively whether a certain source has been involved in a particular temporal and spatial unit of a reception process. It may also be difficult to determine when and how the works of J. Bentham for example, found their way to the desk of a German professor. Private libraries often cause problems in comparison to institutionalised ones, for the latter usually register the arrival of new books, journals, etc. Scientific reception can often be traced back to a translated book.11
Scholars have always been active and eager to disseminate their teachings outside their own university. The same is true about students who, given the motivation and opportunity, would undertake long journeys in search of knowledge. The nationalist orientation of the 19th and 20th centuries is, in this respect, certainly a set-back. It seems that academe today, though, both in teachings and studies, is again forgetting about the political map of the world. In fact, a closer study reveals that even during the peak of nationalist ideology, legal science never suffered as strong a political and national restriction as might seem probable. The history of the University of Tartu serves as a good example. As a university of the Russian empire in the 19th century, it nevertheless conducted all teaching in the German language until 1889. Most of the professors originated from Germany and not from among the local Baltic population. In the course of reforms at the end of the 19th century, the Russian language was established as the language of teaching and consequently, the German professors departed for Germany. Among the Russian professors appointed to office by the imperial ministry of education, several scholars had studied in the Berlin Institute of Roman Law. The establishment of independent Estonia in 1918 was clearly fostered by the ideology of the nation state. In 1919, the University of Tartu of the Republic of Estonia was, for the first time in its history, reformed into an Estonian language institution, its purpose was to lay the foundation for a national learned society and science. However, it was still quite natural for young lawyers to spend a couple of years in any of the leading universities of Europe before being awarded a master’s or doctoral degree.
Whoever studies reception is likely to acquire a wealth of material on the recipients of theories. In the first half of the 19th century, several representatives of the German school of the history of law worked at the University of Tartu (Dorpat): W. Fr. Clossius (1795-1838), C. E. Otto (1795-1896), C. O. Madai (1809-1850) and E. Osenbrüggen (1809-1879). Nevertheless, being aware of this fact is not a sufficient reason to assume that what happened in Tartu at that time was the reception of the historical school. It is more correct to characterise it as a transplantation, which is a familiar term from the general theory of reception. These professors came from Germany and presented the theory, then widespread in Germany, in this local German university to an audience which mainly consisted of Germans. The schedules of lectures of the university reveal the subjects taught by the professors and the time allotted to these subjects. There are also personal files of the students which yield some information about the audience and the archives of the local gentry contain some lecture notes. All of this material affords a good opportunity to determine the content of the teaching and the knowledge acquired by the students of law at the University of Tartu in the first half of the 19th century. Again, this study does not confirm the fact of reception of the historical school at Tartu. The sources refer to a simple procurement of knowledge, or praeceptio. According to the general theory of reception, the process under investigation does not lend itself to being defined as anything but transplantation.
In the study of the spread of scientific ideas and theories, it is often impossible to refer to a particular law containing a clear reference to the norm the origin of which is being studied, and therefore other sources must be used. It is obvious that the transfer of a theory is demonstrated through its expression, or applicatio, in the jurisprudential activities or legal practice of the recipient. In this sense, the schematic chart of reception presented above is similar to the description of hermeneutic problems given by H. G. Gadamer. According to Gadamer’s characterisation, not only understanding and interpretation are essential but so is application (subtilitas applicandi).12 Wishing to stress the importance of this idea in philosophical, philological and historical hermeneutics, Gadamer refers to the example of legal hermeneutics where, according to him, this idea has never been forgotten. Thus, it is essential for those who study jurisprudential reception to include the level of application or expression of a theory in the object of their study.
The approach above proceeds from the general concept of reception as presented at the beginning of this article. Reception presupposes the transfer of a legal phenomenon or, in this case, of a jurisprudential theory to a different legal area or epoch. Without this aspect, it would be impossible to ascertain in retrospect whether a theory was ever adopted and to what extent it formed the basis for further activities in the spheres of legal practice or science. Returning to the example of reception of the historical school, a colleague and friend of the above-mentioned professors in Tartu was Fr. G. Bunge (1802–1897), who is referred to in the history of law as the founder of the local science of provincial law and the codifier of Baltic private law. It is claimed that in his scientific studies of provincial law and also in his codifying activities, Bunge followed the method and system of the historical school.13 However, this statement about Bunge himself is not sufficient either. It should be a separate research topic whether at all or to what extent Bunge’s adherence to the historical school found its expression in his scientific work.
Similarly, in the study of reception of H. Kelsen’s absolute theory of law among Estonian legal scientists, it is not sufficient to be aware of the fact that some of the young lawyers of the 1920’s and 1930’s (A.-T. Kliimann, A. Mägi, J. Vaabel) spent their terms of research in Kelsen’s circle. It is essential to determine whether Kelsen’s theory influenced their own writings.
The requirement to study the application of a jurisprudential theory poses its own problems. For instance, the issue arises of whether it is reception if a theory created elsewhere must be presented in a different language, or whether it is a mere transplantation which gives the theory a chance to undergo reception in the different legal climate. Bearing in mind the above, the latter is true and the translator and interpreter are only a carrier and presenter of the theory which means that the study of reception should also encompass the activities of the subsequent recipients of the theory. This makes it possible to decide whether a theory has been applied in a new area, that is, whether the reception of the theory has actually taken place.
On the other hand, the process where the conceptual basis of a branch of law is adopted by another should also clearly be acknowledged as reception. A classical example of this is German constitutional and administrative law at the end of the 19th century when P. Laband and others used the method and system of the theory of private law as a foundation for the theories of other branches. This indicates that the general concept of reception is somewhat limited. It applies only if a different branch in law is treated as the “new legal climate” of the recipient.
3. Research Topics of Reception and Overcoming Soviet Legal Culture
It may seem that problems of reception only have significance in terms of retrospective analysis. They seem important from the perspective of the history of law and legal science but seem not to apply to current issues. This assumption is not correct considering the situation in which the former socialist countries of Eastern Europe and the Baltic countries of restored independence found themselves after the disintegration of the Soviet Union. All these states have chosen a market economy and an orientation towards European legal culture as the route for their further development. Such orientation means openness to an extensive reception process.
This reception is without a doubt a voluntary process aware of its existence. There is also a great need for the fundamental transformation of legal systems which were at the service of the Soviet regime. The orientation towards European and, more generally, Western legal culture means that these areas are being followed as examples and, thus, the more reason there is to arrive at a correct understanding of the conditions which are essential for successful reception.
A mere transfer of a norm may mean its successful transformation but may not result in the proposed effect which a reception of the whole normative construction would cause. The transfer of a norm must be accompanied by the transfer of the corresponding method, system and conceptual basis. A good example is the Estonian reform of criminal law in 1992. Five years ago, the material basis for the definition of crime was replaced by the formal basis.14 Nevertheless, the reasons of court judgements often still contain expressions such as “taking into account that the convict is dangerous to society” or “taking into account that the act is not dangerous to society”, etc. This indicates that the transfer to the European formal definition of crime has in practice succeeded only partially as, on the other hand, there are certainly judges who no longer use the expression “dangerous to society” and rely on the effective law. It also indicates that the reception of European criminal law and the abandonment of Soviet legal culture is still pending in Estonia. Therefore, it should always be remembered what Fr. C. Savigny wrote in 1814: “Betrachten wir nämlich unseren Zustand, wie er in der That ist, so finden wir uns mitten in einer ungeheuren Masse juristischen Begriffe und Ansichten, die sich von Geschlecht zu Geschlecht fortgeebert und angehäuft haben. Wie die Sache jetzt steht, besitzen und beherrschen wir diesen Stoff nicht, sondern wir werden von ihm bestimmt und getrieben nicht wie wir wollen...Dieser überwiegende Einfluss des bestehenden Stoffs also ist auf keine Weise vermeidlich, solange wir ihm bewusstlos dienen, wohlthätig, wenn wir ihm eine lebendig bildende Kraft entgegen setzen...”.15 Hence, the conclusion for legal science and the reformers of law in present-day Eastern Europe is that the task of reform should not be limited to the successful reception of European law as it is also vital to be aware, through the retrospective study of reception, of the concepts and theories which determine the reasoning in legal matters and of those that hinder the transfer to a new approach in legal thinking.