Dear reader,

The number of legal journals published in Estonia has always been limited. On the one hand, the reasons for such scarcity have always rested with the small population, which limits the size of the Estonian legal audience and thus the potential number of readers. On the other hand, the twists and turns of (recent) history have always meant interruptions in the publication of legal journals. Publishing two, three or even four journals at the same time has proven possible only in a very limited number of years. There is usually no reason to talk about decades in this context. All the more reason for us, as the publishers and authors of this journal, to be proud of the publication of yet another issue of our magazine. The first issue of Juridica International – the foreign language companion to the Estonian language journal Juridica, which has been published since 1993 – appeared twenty years ago, in 1996. Professor Paul Varul, Editor-in-Chief of Juridica International from 1996–2015, took a look back at these first twenty years in the editor’s column of our last issue. Juridica International has acted like a seismograph when it comes to reflecting reforms in Estonian law and legal education. When Estonia joined the European Union in 2004, new and significantly more international challenges alreadly came along during the preparatory stage, not to mention the subsequent active participation in the harmonisation processes of European Union law. The foreign language journal, published at and with the means of the Faculty of Law of Estonia’s own national university, the University of Tartu, has given our legal practitioners a chance to express their views among an international community of scholars in a highly visible manner. Juridica International has also played an important part in publishing materials from legal conferences and seminars held in Estonia. Juridica International has become an attractive international journal that reaches well beyond the borders of Estonia and the European Union. This widespread circulation has been assisted by free access online – a decision made by Juridica International years before “open access” became a keyword of global research policy. In the span of only a couple of decades, the journal that first started as the “calling card” of the Faculty of Law at the University of Tartu, mainly introducing and analysing Estonia’s own legal developments, has become an internationally open, peer-reviewed legal journal that is represented in the most acknowledged databases. Since Juridica International is a universal legal journal by its very essence, and this number is not a topically focused conference issue, the geography of both the authors and the topics covered reflect points of interest and concern in the legal science of our region. A special place is reserved for the principal foundations of the European Union and European legal culture in general, and the latest developments in the law of Europe, Estonia, and other countries are addressed as always. One of the obvious causes for concern is Russia’s legal concept, and the legal situation of both it and its neighbours deserves an observant analysis. As the new Editor-in-Chief of the journal, I thank all the editors, colleagues at the editorial board, and the technical team for their continued energy and hard work. For our readers, as well as current and future authors, I hope this issue will be thought-provoking, give you topics to reflect on, and a reason to join us time and again

Juhuslik ja isamaaline: F. G. v. Bunge provintsiaalõigusteadus

http://www.ester.ee/record=b1449613~S1*es

Dear reader,

Public administration and the respective legal framework have been reformed and shaped in the Republic of Estonia since the restoration of independence, for only a couple of decades now. In its report published in 2011, an influential global organisation focusing on economic co‑operation and development, the OECD, warned that the people of Estonia will soon no longer be able to sustain their country, because Estonia’s public administration is fragmented and decentralised. The report pointed out that in 2008, more than 200 strategic documents were in force in Estonia, expressively showing that the government and state authorities have become divided into what are termed different strongholds. All of them are developing in some direction, using certain means to move toward certain objectives, but they are without a uniform and undivided general concept. Division of labour and co-operation among the various authorities is not the best either. One of the most important elements requiring consideration that are pointed out in the report has to do with the OECD’s observation as to the restricted analysis ability in Estonian administration, both at the levels of the government as a whole, government institutions, management, and leadership and also among single decision-makers. The mechanism for provision of public services is fragmented as well. Ministries and state institutions have determined the services to be provided by each of them by applying their own judgement. At the same time, Estonia has to tackle the increasing problems entailed by an ageing population, low birth rate, and high level of emigration. The functioning of the government sector has to be made more efficient if we are to solve these problems. Naturally, the problematic aspects of Estonian public administration are not visible only on the high international level. In 2012, the idea of a thorough reform of the Estonian political establishment was decisively raised for public discussion. In the debates that followed, individual problematic issues have been addressed, with the reforms put forth including elimination of the level of county government and implementation of reorganisation of functions, merging of some ministries and establishment of new ones, reorganisation of the internal structures of ministries, and other changes. On the other hand, important issues related to the bases for state or public administration have been left quite unnoticed. An attempt was made to compensate for this shortcoming in the debate via an international conference, ‘Modernse riigihalduse lätetel – allikad, arengud ja perspektiivid’ (“At the Origins of Modern Public Administration—Sources, Developments, Perspectives“), that was held at the University of Tartu on 24–25 October 2013. The conference was also an event forming part of the Academica programme for German–Estonian academic co-operation. Accordingly, the primary emphasis was on the German and Estonian experience in both historical and topical perspective. Today’s problems in Estonia or Germany are in themselves nothing unique. Many other European countries have gone through similar historic developments and are facing similar economic, social, and demographic tendencies today. This is why we hope that the conference materials published in this issue will be interesting also to a wider international audience. At this point, we wish to take the opportunity to thank all of those who made presentations at the conference and the financial supporters of the conference and of the ­publication. The challenges faced by public authorities and the administrative sector reach far further than the narrow confines of administrative law. This is vividly shown by the problems and approaches addressed in the second half of the publication, which features articles from very diverse fields of law. Even in private law, where the relationship between legal subjects is determined automatically, intervention by public authorities is often necessary for ensuring the possibility of the continued existence and actual functioning of this autonomy. To ensure that this intervention is thought through properly and fully justified, applying the appropriate theoretical approaches is vital

Tartu õuekohus kui õigussiire: Svea ja Liivimaa apellatsioonikohtute võrdlus [Abstract: The High Court of Dorpat as a legal transplant: a comparison of the Svea and Livonian High Courts]

Legal transfers (or transplants, receptions) of legal phenomena sometimes take place even within one single realm. This especially applies to the conglomerate states of the early modern period where different regions of one realm often had different laws and legal cultures. Livland – covering roughly the northern part of present-day Latvia and the southern part of Estonia – became part of Sweden through the Treaty of Altmark in 1629. From the social and political viewpoint, Livland was vastly distinct from Sweden proper. Livland was a feudal society par excellence, a land with mighty land-owning magnates and a peasantry tied to the land. Sweden, in turn, came late in developing feudal structures. The legal culture in Livland also differed vastly from that of Sweden proper. Since the Middle Ages, a German-speaking nobility and citizenry had settled in Livland. This brought the same legal order and judicial proceedings to Livland that were in effect in other northern German regions. This, among other things, meant that Livland participated in the reception of Roman law, which never influenced Sweden to the same extent. The model of the Swedish high court, such as it was created in Stockholm in 1614, was duplicated in other parts of the realm, including the Livonian court in Dorpat in 1630. The statutes regulating the Dorpat High Court were similar to those governing the Svea High Court, albeit with some differences. The most important of those differences was that the Livonian courts, including the Dorpat High Court, were to follow different legal sources than the courts in Sweden proper. In Livland, local law, the German gemeines Recht and the European ius commune were all accepted as binding legal sources. The differences in practice were more significant than those in the statutes. The Livonian court turned out to be less of an appeals court than the Svea High Court. In Livland, the access of peasants to the appeals court was effectively barred because their cases were rarely heard even in the lower courts – they were heard in the manorial courts instead, which survived under Swedish rule. In comparison to Sweden proper, judicial culture in Livland was in the hands of learned lawyers to a far greater extent, who dominated both civil procedure and accusatorial criminal procedure. In both categories, the procedure was written and dominated by lawyers. Although learned discussions took place at the Svea Court as well, in Dorpat, learned judicial culture was taken a step further. In criminal procedure, clearly the biggest difference was that judicial torture was living law in Livland until the 1680s, with the High Court giving formal permission for the lower courts to apply torture. In Sweden, torture emerged in the early seventeenth century, but was never legalised. The high court of appeals was a phenomenon, which came in many shapes and sizes. The same idea was transferred from one realm to another, and the same basic structure was multiplied within the realms. The products of legal transfer, the courts in action, could turn out differently, however. This often happened deliberately, as the idea of a high court sometimes needed tailoring to suit particular local circumstances. Sometimes the product took a different shape unexpectedly, because the local circumstances simply made it different. This could even happen within one and the same realm

“Kohtuniku amet on liiga raske neile”: Eesti naisjuristide pürgimisest kohtunikuks kahe maailmasõja vahelisel perioodil [Abstract: “Judge’s work is too hard for them”: aspirations of Estonian female lawyers to become a judge in the interwar period]

This article discusses the aspirations of two Estonian female lawyers – Auguste Susi-Tannebaum and Olli Olesk – to become a judge in the 1920s. Estonian women were already allowed to study the field of law in the early years of the twentieth century. The possibilities for obtaining a law degree expanded with the foundation of the Republic of Estonia, when female students gained the right to enrol in the university on an equal footing with male students. Nevertheless, it turned out to be much harder to start working in their chosen field: before the Second World War, out of 143 women who had graduated from the Faculty of Law, only 42 were practising lawyers. The first female notary started working only in 1936. No female lawyer became a judge in Estonia before the Second World War, and the first female judges were appointed during the Soviet era in the period of 1940–41. Auguste Susi-Tannebaum and Olli Olesk had graduated from the Faculty of Law at the University of Tartu and were members of the Estonian Bar Association. However, the applications submitted by Susi-Tannebaum (1924) and Olesk (1929) for candidacy to join the judge’s profession were rejected. Both women contested the negative decisions in the Supreme Court. The Supreme Court was guided by the principle of gender equality and implicitly expressed its opinion that female lawyers who apply for a position as a judge cannot be excluded from the candidacy on the grounds of gender. Regardless of the Supreme Court’s opinion, it was possible to exclude women from the competition for judge’s positions on the basis of the law granting the chairman of the National Court of Appeal (Kohtupalat) the exclusive right to decide on the suitability of candidates without the obligation of justifying the decision. Thus, the cases of Susi-Tannebaum and Olesk indicate how female lawyers who wanted to become judges ended up in a vicious circle: first, the negative response from the National Court of Appeal was followed by the favourable opinion of the Supreme Court on gender equality. Thereafter the Court of Appeal was able to make a further negative (and legally correct) decision on the non-compliance of a candidate for “informal reasons”, without any additional explanation. As it was not obligatory to justify the negative decision, women were deprived of the opportunity to become judges in the 1920s and 1930s. In 1936, the position of the head of the Tartu Guardianship and Custodianship Court was given to Ljubov Hütsi, whom the general public considered the first female judge. However, the guardianship and custodianship court was an administrative institution rather than a genuine court of law. It was subject to judicial control and thus the person appointed as the head of such an institution by the Minister of Internal Affairs cannot be considered a judge. During the 1940s, repressions and the replacement of previous lawyers offered new employment opportunities for women. Regrettably, several women who were appointed judges from 1940 to 1941 had no higher education in law, and some of them did not even have any kind of legal education. In this period, having a legal education was not a priority, because loyalty to the Soviet regime and membership in the Communist Party were more important prerequisites

Õigusfilosoofia. 1, Sissejuhatus õigusfilosoofiasse : õpik Tartu Ülikooli õigusteaduskonna üliõpilastele

Kopeerimine keelatud, printimine lubatudhttp://www.ester.ee/record=b1055932*es

Limitation of Freedom of Speech and of the Press by Penal Law in the Final Decades of the Russian Empire

In the 21st century, it is inappropriate to have to ask whether criticising a political regime or exercising freedom of speech could lead to criminal charges and criminal punishment. In contrast, a hundred years ago the restriction of people’s freedom of speech, especially in relation to political matters, was quite extensive, both in autocratic Russia and elsewhere. The article addresses the legal situation in the Estonian territory of the Russian Empire until 1918, when insubordination to state authority and inciting mutiny were punishable by law. On 17 April 1905, the so-called Freedom Manifesto gave people freedom of speech, and the Fundamental Laws of the Russian Empire entered into force one year later, wherein fundamental rights were enumerated, among them the right to express one’s convictions, both orally and in writing. At the same time, however, restrictions continued to apply to the fundamental rights declared, which at times were very strict in the tsarist state and rendered the space for exercise of those rights extremely narrow. The article provides an overview of the penal legislation that was applicable within the Estonian territory at the dawn of the 20th century, which set boundaries to freedom of speech and of the press. Considered separately is the case law of the Tallinn Circuit Court pertaining to charges of instigation of mutiny, with the aim of showing how these provisions were applied in judicial practice and the context in which the state restricted people’s fundamental rights. In the Tallinn Circuit Court, it was primarily newspaper editors who were charged with incitement to mutiny, because they allowed the publishing of various calls to action in relation to workers’ movement propaganda and demands for better conditions and rights for workers. At the beginning of the 20th century, class warfare was considered a crime against the state, and the case law demonstrates how the constitutional freedoms of speech and the press were restricted via strict penal-law measures.&#160