Summary

The philosopher Plato knew how to say that in the world of ideas, the idea of goodness or goodwill shines like the sun among, or even above, the ideas of all other things and phenomena. The sun of German law seems to rise over Estonian law in a similar way – brighter than any other legal order in the world, German law also allows Estonian law, or parts of it, to come to light. In the process of shaping the new Estonian law, choices were often made in favour of solutions derived from German law. Often, however, the choices introduced by Estonia’s new laws were different from the German example. The idea was simple: pick the best of each and then put them together in your own way. It is precisely this method of mixing – of putting things together in one’s own way – that makes the use of German law or jurisprudence in the interpretation and shaping of Estonian law not only fruitful, but often dubious or questionable.

In addition, we have to bear in mind that, among other things, elements of German law or jurisprudence have been taken over into our own law which, in the opinion of the German authors themselves, need critical consideration: for example, the doctrine of abuse of rights, fiduciary liability, the so-called ‘value jurisprudence’, which we also value highly. The consequence of the continued use of these legal innovations from the era of National Socialism is not necessarily pseudo-justice, but the possibility of such will always remain. The author urges caution here. At the very least, in each case it should be clearly demonstrated and justified why the use of these elements is not problematic.

This is an academic assembly hall lecture at the event celebrating the 30th anniversary of the re-establishment of the Supreme Court of the Republic of Estonia, held in the Assembly Hall of the University of Tartu, on 25 May 2023.