Estonia in the European Union: Creation and Implementation of New Laws
XV/2008
ISBN 978-9985-870-25-9
Issue
1. Introduction
This article deals with the turning points in Estonian legal terminology in the transition from the Soviet era to the integration into Europe, considering the usage of Latin terms in juridical journals. Employing Latin terms is characteristic of European legal cultures and legal writings. The development of law in continental Europe has relied heavily on the Latin language and the system of concepts based on Roman law; historically, Latin has been extremely closely connected with the development of European law. In previous centuries, the bulk of legal literature and much legislation was compiled in Latin. Although Latin ceased to be the language of law and legal science in the 20th century, its significance as a technical means of communication among lawyers in Europe remains. The conciseness and linguistic economy of Latin terms encourages their use. *1 Precisely formulated Latin terms facilitate international communication of lawyers and enable them to exchange information and ideas effectively despite linguistic and cultural boundaries. *2
Juridical journals have been chosen as the material for this research because periodicals are formally the most dynamic medium of law. According to M. Stolleis, in essence they could be called the ‘medial crossing-point’ where legal science, judicial and administrative practice, legal politics, and general politics meet. *3 Legal periodicals are a mirror of the legal culture.
It is obvious that different legal cultures shape very different journalism. Three major turning points and rearrangements in Estonian legal history in the course of the 20th century have had a strong impact on the legal culture and changed it considerably: 1918 with the creation of the Republic of Estonia, 1940 and 1944’s Soviet occupation, and the regaining of independence in 1991. At all of these points, radical legal reforms occurred.
Against this background, the material collected during my survey reflects, in the context of Estonian legal history, the linguistic turning points: integration of one special language, legal language, into the European, then into the Soviet, and finally back again into the European legal environment. The present article focuses on the latter. The material for the study is composed of the content of two juridical journals published in Estonia: Nõukogude Õigus / Soviet Law (which was published from 1967 to 1989; in this article I have used the issues of the last five years of publication, 1985–1989) and Eesti Jurist / Estonian Lawyer (published from 1990 to 1994). Hence, the material covers e qually five years of publication of both periodicals.
The aim is to ascertain whether the kind of revolutionary transformation processes that occurred within the legal order can be observed in legal terminology as well. Law is an area where the linguistic means of expression have a particularly great impact. This takes place through language, as a word or expression acquires juridical power. However, according to M. Aronoff *4 , a legal expression on its own or in a glossary is only an abstract item. Yet within a text it acquires a syntactic role and meaning. Therefore, just as legal periodicals reflect the legal culture, terminology also depends on the socio-cultural context, and terms are means to signify legal structures, relationships, values, and changes. *5
The following questions are raised in this article: How are the changes introduced by the above-mentioned legal reforms mirrored in the usage of language by Estonian lawyers with regard to Latin terms? What is the moment in time that represents the return to the European legal environment in view of the usage of Latin terms in particular?
The hypothesis is that in the journals published during the Soviet era Latin terms are used less frequently. The juridical journalism of the Soviet time originated mainly with state administrative structures. That period established the Soviet system and Russian models: terminology was planned on the basis of the Russian language, and juridical texts and documents were translated from Russian. *6 My hypothesis is also based on the fact that the majority of the authors of this time belong to a generation for whom classical studies were not officially available at Estonian universities. Study of the speciality of classical philology was abandoned at the University of Tartu in 1954 and resumed in 1990. *7 Roman law was taught, but the academic research tradition in this field had been interrupted. Consequently, the knowledge of Latin held by many authors of legal texts of that time was inadequate and unsystematic.
The quantitative and qualitative method of study has been applied in my research; statistical data have been compared with a view to demonstrating dynamic changes.
2. Research material
Both periodicals, Soviet Law and Estonian Lawyer (until 1993), were published by the Ministry of Justice. It can be maintained that Estonian Lawyer developed from Soviet Law, because in 1990, when the new periodical began publication, the editorial board was not replaced and even the features and design of the journal remained the same. Both publications also had six issues per year.
The content of both periodicals was made up of the following features:
| Soviet Law :
| Estonian Lawyer :
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Formally, there does not seem to be much difference between the two periodicals, as both include similar topics and features. What sets them apart from each other are the content and ideology. The years under examination represent well the change in rhetoric: the 1985 Soviet Law commemorated the 45th anniversary of the creation of the Estonian SSR. *8 The 1990 Estonian Lawyer dealt with the elapsing of 50 years from the Soviet occupation of Estonia. *9 The history section of Soviet Law focused on the establishment of the Soviet legal system in Estonia, whereas Estonian Lawyer concentrated on the destruction of the courts administration of the Republic of Estonia in 1940. Owing to ideological factors, Soviet Law also addressed the problem of the struggle against alcoholism through history, which was a particularly important topic in 1985 because of the strict alcohol policy imposed by Gorbachev. Estonian Lawyer surveyed the history of the Faculty of Law of the University of Tartu, and published articles about famous Estonian lawyers of the pre-WWII period.
As chances to get behind the Iron Curtain during the Soviet era were slim, visits abroad attracted great attention. Therefore, Soviet Law published interviews with those Estonian lawyers who on business trips had had the chance to spend time in foreign countries. Similarly, accounts were given of the meetings of the publication’s board members with foreign visitors to Soviet Estonia (mainly from countries friendly to the USSR, such as Ghana).
Latin has been used only in articles and historical reviews here — i.e., in about half of the content. The remaining half, which distributes practical information and introduces new legal acts, as a rule contains no Latin terms.
What makes these two periodicals representative as linguistic objects of study is the fact that both have a broad circle of authors. Specialists in different legal fields published articles in them. Besides law professors, we can see among the authors also attorneys, prosecutors, and judges. The articles in both of the journals contain material concerned with all major areas of law and thus give an objective overview of the different aspects of terminology.
In 1993, a noticeable change occurred in Estonian Lawyer: it began to be published by the Association of Estonian Lawyers, the whole editorial board was replaced, the design was altered, and 12 issues per year began to be printed. The number of pages grew from approximately 480 to 750. Additionally, the whole concept was transformed: first and foremost, practical legal information began to be disseminated. The bulk of the content comprised legislative texts and commentaries on them, with articles now taking up only a third of the periodical. Besides the summaries of articles in English, synopses in Russian were provided. Overviews of court practice continued, and reviews of the legislation by ministries and local governments were added, as were chronicles of Riigikogu (Estonian Parliament) proceedings. Photos and other illustrative material appeared. Much space began to be devoted to the bibliography of new legal literature and reviews of articles on legal topics that appeared in Estonian newspapers. In 1995, Estonian Lawyer merged with Juridica *10 , the periodical published by the Faculty of Law of the University of Tartu, and the latter continues to be published to this day.
In total, my research dataset comprises:
a) Soviet Law : five years of publication, 29 issues, 2380 pages
b) Estonian Lawyer : five years of publication, 37 issues, 2920 pages
3. Frequency of usage of Latin terms
In total, Latin was used 158 times in five years in the articles in Soviet Law, thus, on average, 5.4 terms per issue. If we divide the number of pages by the number of terms, we can see that the Latin language appears on every 15th page of Soviet Law, on average. Q uantitative changes in the usage of Latin terms in 1985 to 1989 are presented in Graph 1.
Graph 1: Latin terms in Soviet Law
According to Graph 1, the usage of Latin terms increased noticeably in the last year of publication. In 1985, in total, 18 Latin terms were used. A year later, in 1986, in comparison, Latin terms were used 31 times already. For 1987, only 10 Latin terms can be found. In the next year, 1988, a slight rise again occurred: Latin terms were used 17 times. The biggest increase can be witnessed in the issues from 1989: Latin was resorted to 82 times in the course of the year.
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What caused such large differences with regard to terminology? We can point out a significant detail here: up to 1989, no references to foreign-language sources were made in the articles. The majority of citations referred to Soviet authors and the ‘obligatory’ quotations from Lenin, Marx, and Engels. In 1989, scientific literary works in foreign languages became more readily available to Estonian lawyers, and several authors were able to go abroad. References to sources in English, French, and German in that year’s articles reveal that the authors were eager to study literature in other languages and to rely on a variety of foreign sources. Subsequently, the topics discussed began to change. Looking at the last years of Soviet Law, we notice that numerous articles in 1989 dealt with topics such as the possibility of self-determination, sovereignty, and international law (these years also mark the rediscovery of national identity and a resurgence of patriotism), which required more frequent use of Latin (e.g., in discussion of the sovereignty of the Republic of Estonia de facto and de iure). These trends continued in Estonian Lawyer, which began publication in 1990.
On the other hand, the abundance of Latin terms in 1986 and 1989 can be explained by the fact that in those years several articles appeared about the history of the University of Tartu, including the Faculty of Law. In historical references, a number of Latin expressions were used. In 1989, the 70th anniversary of the national university was celebrated. *11
In the articles in Estonian Lawyer, Latin was used 426 times in total in the corpus — on average, 11.5 terms in each issue. If we divide the number of pages by the number of terms, we can see that Latin appears on every 6–7th page of Estonian Lawyer on average, twice as often as in Soviet Law (typically five expressions per issue and on every 15th page).
Graph 2: Latin terms in Estonian Lawyer
Graph 2 shows that the usage of Latin terms in the journal Estonian Lawyer over the years studied was more frequent in comparison with Soviet Law. In 1990, the topics of independence and internationalisation continued to be analysed, and, in total, 100 Latin terms were used. A year later, in 1991, Estonia regained independence. The journal mainly focused on distributing practical information: the changes in state structures and the release of new laws and regulations. As no Latin terms are used in Estonian legislation, and as the part of the journal that comprised articles was smaller in 1991, the number of Latin expressions used dropped — 40 instances can be counted. In 1992, Latin terms were used 86 times. For 1993, 71 Latin terms can be found. In the last year of publication, 1994, a remarkable 129 Latin terms were employed. It is impossible to cite any particular reason for this or refer to any specific theme; simply, many articles included Latin terms and this was becoming a natural part of juridical language use. *12
It can be said that the juridical journal that appeared in Estonia after the collapse of the Soviet Union had to tackle a great reform assignment. The society was becoming oriented toward the West, and close contacts with the rest of the world were established. The system of concepts and the languages of influence changed — the importance of Russian as the source of reference diminished, and German and English became most influential instead.
Summing up the figures represented by both graphs, one can claim that, although officially Estonia regained independence in 1991, readiness to resume orientation toward Europe was clearly evident a few years earlier — in 1989 and 1990.
4. Lexical diversity and the most frequent terms
In addition to the perspective of their overall quantity, the Latin terms found in both journals can be compared from a qualitative point of view; i.e., I analysed the lexical diversity of the terms. In total, 65 different Latin expressions were used in Soviet Law in the course of five years, whereas in Estonian Lawyer twice as many — 128 — different terms can be detected.
Graph 3: Lexical diversity in Soviet Law and Estonian Lawyer
Graph 3 displays the usage of different terms in both periodicals by year of publication as analysed in the present article. In the second and last years of publication, the differences are not very noticeable: in Soviet Law, 20 different terms in 1986 and 44 in 1989, compared with, in Estonian Lawyer, 27 different terms in 1991 and 60 in 1994. Bigger qualitative changes can be observed in the first, third, and fourth years of publication. In the first year, 1985, only 13 different terms can be seen in Soviet Law, but in 1990 there were 48 terms in Estonian Lawyer. The third year showed even bigger differences: eight Latin terms in Soviet Law in1987 but 59 in Estonian Lawyer for 1992. In the fourth year, the changes in terminological variety are not that dramatic in a comparison with the third year: 1988 showed 15 Latin terms in Soviet Law, and 1993 provided 37 in Estonian Lawyer. Accordingly, in addition to the quantitative differences between the two journals, a remarkable distinction can be observed in the variety and diversity of the terminology used.
We notice that the authors in Soviet Law employ relatively modest usage of terminology in comparison with the language of the authors in Estonian Lawyer: Latin terms are fewer in number and less diverse: from 1985 to 1988, only 14 different Latin terms can be counted, on average, in the articles for the whole year (i.e., six issues in total, with around 450 pages in total). The main change occurred in 1989, when the terms grew in number: 44 different Latin terms per year. This indicates that the linguistic quality of legal texts improved in terms of variety and a more Western style of expression was adopted.
Semantically, we can divide all Latin expressions observed in both journals into three major classes: normative arguments that contain specific juridical information, terms used in rhetoric or for illustrative purposes (here belong mostly generally known Latin expressions and other widely employed maxims), and expressions pertaining to university and studies of law.
In both periodicals, the largest group is composed of Latin expressions as juridical arguments. In Soviet Law, of the 65 different expressions, 26 belong in this group; in Estonian Lawyer, 66 out of 128. About 40% of all Latin phrases in Soviet Law and 51.5% (i.e., about half) in Estonian Lawyer are used in their narrow juridical meaning.
The most frequent juridical terms are the following:
| Soviet Law : de lege ferenda — 6 times de iure — 4 ius gentium — 4 ex tunc — 2 ius est ars boni et aequi — 2 ius cogens — 2 vacatio legis — 2 | Estonian Lawyer : de facto — 23 times versus — 16 de iure — 13 de lege ferenda — 11 nullum crimen nulla poena sine lege — 8 lex — 6 fontes iuris — 5 |
The most numerous among the expressions are terms related to legal theory, international law, penal law, and matters of sovereignty.
In addition to juridical terms, so-called juridical rhetoric is often used in articles — i.e., widespread Latin expressions and abbreviations. In both journals, such phrases make up about a quarter of all Latin expressions. I found 16 of these in Soviet Law (24.6% of the total) and 34 in Estonian Lawyer (26.5%).
| Soviet Law : ca (circa) — 15 times resp . (respective) — 2 tempora mutantur et nos mutamur in illis — 2 expressis verbis — 1 in medias res — 1 status quo — 1 | Estonian Lawyer : ca (circa) — 18 times etc. (et cetera) — 7 ex officio — 4 stricto sensu — 3 inter alia — 2 mutatis mutandis — 2 |
Such expressions are ordinarily used in their general and neutral meaning in the articles. However, it is most difficult to draw a line between juridical argumentation and rhetoric in cases of terms that may acquire specific meaning in juridical contexts. A legal term might occur in legal language while also existing as a word in the common language, having a particular meaning there. Expressions like ‘status quo’ or ‘inter alia’ are of the kind used by lawyers in their general meaning but also used in a specific juridical meaning.
A considerable proportion of the Latin phrases used in the corpus examined here is made up of those employed in the corpus in descriptions concerning the history of the University of Tartu and the Faculty of Law. Please see the table below.
| Soviet Law : stud. Iur. (studiosus iuris) — 17 times alma mater — 11 cum laude — 11 dr. iur. (doctor iuris) — 11 Album Academicum — 7 | Estonian Lawyer : cum laude — 35 times alma mater — 14 dr. iur. (doctor iuris) — 12 Academia Gustaviana — 6 studia iuridica — 2 |
In Soviet Law, 23 such expressions could be found, remarkably accounting for 35.4% (a third) of all Latin phrases used. In Estonian Lawyer, 26 expressions (20% of the vocabulary) concerned the topic of university. *13
The remaining 1.5% of the unique expressions in Estonian Lawyer comprised two medical terms: in vitro and in utero, which were published in 1993 in an article discussing the embryo protection act. This kind of term usage draws attention to the fact that technical language has its own characteristics setting it apart from general language. The neutral vocabulary of general language, legal terms, the technical terms of the particular fields involved, and the grammar of modern standard language constitute the instruments of legal language. *14 This means that legal texts have specific characteristics, yet, besides juridical terms, the terminology of the field that is the object of the particular legal text concerned, in addition to general language, has an effect on legal language. *15
5. Comments and conclusions
Law is an area where linguistic means of expression are of utmost importance. The results of this survey draw our attention to the fact that language use is a social activity and the author of a text is part of that process. According to the creator of systemic functional linguistics, M. A. K. Halliday *16 , the author of a text uses language selectively for his purposes. In making linguistic choices — choosing words and terms, sentence structures, and other rhetorical systems — the author creates a text of certain characteristics and meaning. From the functional angle, writing a text is an instance of purposeful use of language, as in making linguistic choices the person considers the purpose and function of the text. The communicative function of language (the interpersonal meta-function) means that the author of an article uses language as a tool for presenting his own judgements, attitudes, and comments, and for creating a connection between himself and the reader.
The aim of my study was to investigate how the changes introduced by the legal reforms are mirrored in the usage of language by Estonian lawyers with regard to Latin terms. The research material consisted of periodicals whose authors are lawyers and whose function is to publish legal information for the readers, who are also lawyers. In the case of such specialised communication, the assumption is that the authors do not have to consider a target group of non-lawyers and thus can make use of technical terminology. However, the authors of the articles in both Soviet Law and Estonian Lawyer were rather modest in their usage of strictly juridical terms. More freely employed were expressions that are widely used also outside legal language and the vocabulary of the studies of law.
The statistical data analysed in the course of this research revealed that the usage of Latin terms in the juridical articles of 1985–1994 was directly connected with the socio‑political changes that brought about extensive legal reforms. During the period investigated, new laws were drafted, and the legislation of European countries and international legal instruments were scrutinised. Reliance on European sources also influenced the usage of legal language. It is important to note that the quantitative and qualitative changes in language usage did not occur in 1991 — i.e., the year when Estonia restored her independence. The most significant changes in terminology had begun already in 1989 and 1990, when the readiness to try to become again part of the European legal environment surfaced. In a broader sense, it means that language usage must keep up with the developments in society. The legal environment changes; subsequently, language usage must change as well. Thus, the rearrangements in the Estonian legal system compelled the Estonian lawyers to include in their usage of legal language those Latin terms that have become rooted in the legal tradition of Europe.
pp.175-182