Academic education has long traditions in Estonia. Similarly, traditions in the legal regulation of the activities of institutions of higher education are significant. The first University of Tartu Act*1 dates back to 1925. The Tallinn Technical University Act*2 is of later origin. The Universities Act*3 was passed in 1937. This Act was unsystematic and contained detailed provisions for the universities, regulating even their internal matters which, in principle, should have been in the competence of the universities themselves. At the same time, the limits of university autonomy were exactly specified. Thus, already in the initial years of independence, the Estonian state considered the sphere of education so important that several laws were drafted to specifically regulate this sphere.
The preparation of the Estonian Education Act began in the late 1980s. At the time, Estonian society was undergoing qualitative changes, which gave rise to the possibility for transition from the law of a totalitarian state to the legal system of a democratic country. With the Education Act, a concept of law was created which was independent of the corresponding legislation of the former Soviet Union. Institutions of higher education, or more specifically, the relationships between the state and universities, had an important place in the Act. Changes in the political situation brought along a re-drafting of the Education Act bill. The need for drafting a specific law concerning universities became evident. The Education Act was passed in 1992. However, with respect to universities, this Act was declarative rather than regulatory in nature. The Universities Act bill remained a bill because the passage of the Act necessitated the parallel adoption of the Research Organisation Act which had yet to be drafted. Thus, for the time being, the Education Act provided the only normative basis for the regulation of the sphere of education.
Nevertheless, the idea to draft a law concerning universities was not abandoned in the Estonian legal system. The corresponding bill was completed in the middle of 1993. It is interesting to note that experts of foreign countries reviewed the bill, giving it a positive assessment at a seminar on higher education held in Tallinn in 1993.
The year 1995 marks the birth of educational law as a discipline of administrative law in the Estonian national legal system. University law is one of the sub-disciplines of educational law. A normative basis for university law was created by the Universities Act*4 and the University of Tartu Act*5,6.
The purpose of the Universities Act is to establish procedures for the foundation, merger and division of and the termination of the activities of universities, the bases for their operation, the limits of university autonomy, the principles of university administration, the forms and conditions for acquisition of higher education, the legal status of university assets, university financing, the basic rights and duties of academic staff and students, and state supervision over the activities of universities. This Act defines the basic terms such as higher education, university, academic degree, curriculum, standard for higher education, instruction bias, specialisation training, professional training, occupational training, and accreditation. In comparison with the Education Act passed in 1992, significant progress may be observed. The Education Act contains disputable terms and is, as a whole, declarative.
The purpose of a university in the Estonian legal system is to promote research and academic traditions, to create and develop the possibilities based on an integrated system of instruction and research for the acquisition of contemporary higher education which is compatible with the standards for higher education, to arrange for further training and to provide instruction and research related services necessary to society.
It is essential to note that the Universities Act provides for, in the implementation provisions, accreditation and the status of universities. The Higher Education Assessment Council must arrange for the accreditation of the curricula of all universities within four years after entry into force of the Act. Until adoption of accreditation decisions, university status will be held by the University of Tartu, the Tallinn Technical University, the Estonian Academy of Music, the Tallinn Pedagogical University, the Estonian Agricultural University and the Tallinn Art University. This does not mean however that the curricula of these universities are not subject to accreditation. At present, the accreditation process is under way. The Faculty of Law of the University of Tartu submitted its self-assessment report to the accreditation committee on 31 May 1996.
Pursuant to the University of Tartu Act, the university is a universally integrated research, educational and cultural institution. The purpose of the alma mater is to promote research and the creation of possibilities for the acquisition of a research-based higher education in all specialities taught at the university and to provide services relating to research, educational and other cultural activities. It is significant that, in its activities, the University of Tartu follows the Magna Charta principles of European universities.
In terms of its legal status, the University of Tartu is a public law legal person. Consequently, the Estonian legal system has created by law a new public law institution which is not a state agency within the direct area of government of a ministry or executive agency, but over which supervision is exercised only by the state. A democratic system means, inter alia, that public authority is not exercised solely by the state. Public administration may also be exercised by other legally independent institutions.*7 In continental European national legal systems, the formation of which began more than a century ago, the issue of public law legal persons does not give rise to problems. However, the passage of the Universities Act and the University of Tartu Act brought about a qualitative change in the Estonian legal system. Until that time, the Estonian state and legal system had no experience of public law institutions to whom the state relates on the basis of law.
The passage of the Universities Act and the University of Tartu Act also means that both the University of Tartu and the whole Estonian university system are moving away from the so-called German university model. With these Acts, the legislator has enacted provisions which decentralise the system of higher education. These Acts provide for academic degrees, other professional or occupational degrees, and a three-level system of higher education (bachelor’s, master’s and doctoral degree programmes).
A university has its own assets. The rights of the University of Tartu as an owner are more extensive than those of other universities. Subsection 46 (2) of the Universities Act provides that the minister shall determine the amount of assets which the rector, prorector and heads of structural units are entitled to control. Section 10 of the University of Tartu Act which regulates the rights and duties relating to assets does not establish such a restriction with respect to the University of Tartu. Hence, the University of Tartu Act operates as a lex specialis amending the lex generali. Assets of the University of Tartu consist of the assets which the university uses for the performance of functions provided by its by-laws and which the state transfers by law into the ownership of the university. In addition, university assets include the assets which, at the request of the university, are later transferred by law into its ownership and the assets which other persons transfer to the university. The Act also regulates the assets which were in the ownership of the university before 16 June 1940. As the University of Tartu has the right to own these assets, it is entitled to restitution of the assets unlawfully expropriated in the Soviet period. Thus, the University of Tartu Act provides that the Government of the Republic must, not later than within one year after entry into force of the Act, transfer, free of charge, by a regulation to the university those assets which were in the ownership of the university before 16 June 1940 and which the university requests, which can be transferred into the ownership of the university and are necessary to the university for the performance of its functions provided by its by-laws.
University assets are not state assets and do not belong to the state.
Unlike the first Universities Act in the Estonian legal system which was unsystematic as mentioned above, the Acts regulating university education which were passed after restoration of Estonia’s independence are more systematic. Based on the Constitution of the Republic of Estonia, the Universities Act, the University of Tartu Act and other legislation, the University of Tartu By-laws were adopted and approved pursuant to § 9 of the University of Tartu Act by the University of Tartu Council on 28 April 1995 and registered under No. 286 in the Ministry of Culture and Education on 1 June 1995. The by-laws provide for the purpose and functions of the activities of the University of Tartu, its administration and structure, organisation of instruction, the basic rights and duties of its membership, the procedures for possession and disposal of assets, financing, reporting and supervision.
The by-laws also regulate the autonomy of the university which is directly connected with its legal capacity. University autonomy is provided for in § 38 of the Constitution, under which science and art and their instruction are free. Universities and research institutions are autonomous within the limits prescribed by law. Under the by-laws, the autonomy of the university consists of its right to independently:
1) decide the content of research and instruction, organisation of instruction, and curricula;
2) establish the conditions and procedures for students’ admission, instruction and graduation;
3) determine its internal structure;
4) determine the conditions for the election of academic staff and researchers; and
5) decide other matters within its competence.
Pursuant to § 58 of the by-laws, the structure of the university is divided into academic, administrative and support staff. University institutions are within the structure of the university. The academic structure is composed of the faculties and their structural units (§ 59). In order to characterise the work of the academic staff, the Faculty of Law By-laws serve as an example. Pursuant to § 62 of the University of Tartu By-laws, the bases and procedure for the activities of a faculty are established by the by-laws of the faculty which are adopted by the faculty board and approved by the university council.
The Faculty of Law By-laws were adopted in a meeting of the faculty board on 22 November 1995. Under these by-laws, the Faculty of Law is an academic structural unit of the University of Tartu, the main functions of which are the organisation of instruction, research and development in the field of law and the provision of related public services. The faculty also prepares curricula, on the basis of which it conducts instruction, organises research, carries out further training in the field of law, offers professional advice and consultations, manages contractual research and development, provides for the younger academic generation and performs other functions pursuant to procedure established by the university.
At present, the faculty has a new curriculum which was introduced in 1992-1993 immediately after the restoration of independence. The curriculum was first evaluated at the international level by Prof. J. P. Grant, Dean of the Faculty of Law of the University of Glasgow. At the request of the Euro Faculty, the curriculum was also analysed by Prof. W. Schlüter of the University of Münster. The current curriculum was adopted in a meeting of the faculty board on 12 May 1995 and approved by the University of Tartu Council on 26 May 1995. In the preparation of the new curriculum, the socio-economic and political changes in Estonian society were taken as the basis. Further, the need for integration of the Estonian legal system with that of continental Europe was also taken into consideration. Due attention in the curriculum has also been paid to comparative law and comparative jurisprudence. Nevertheless, the curriculum is far from ideal, reflecting a compromise between ideals and actual possibilities. With this curriculum, the Faculty of Law aims to provide academic legal education, or in other words, legal education based on research. In addition, in line with the general principles established by the university, the faculty seeks to provide its students with a broadly based general education. The system of disciplines at the University of Tartu, the relative flexibility of the curriculum system and the Open University Project to be implemented in the autumn of the 1996/97 academic year constitute a sound foundation for a general comprehensive education.
Academic legal education at the Faculty of Law comprises three degree programmes: the bachelor’s and master’s degree programmes and the doctoral programme. To complete the bachelor’s degree programme, a student must pass examinations in the disciplines prescribed in the curriculum, pass an examination in the area of his or her narrower specialisation and defend a bachelor’s thesis. Completion of the master’s degree programme requires the passage of examinations in the disciplines prescribed in the curriculum and of the master’s programme examination, and defence of a master’s thesis. Similarly, completion of the doctoral programme requires the passage of examinations in the relevant subjects and of the doctoral programme examination, as well as the defence of a doctoral dissertation. Completion of an academic legal education usually takes four years in the bachelor’s degree programme, two years in the master’s degree programme and four years in the doctoral programme.
The general curriculum structure is based on the Organisation of Instruction at the University of Tartu Rules which were approved by the University of Tartu Council on 30 June 1995. Disciplines are divided into majors, obligatory minors, optional minors and electives. A major consists of the main disciplines of a speciality. At the Faculty of Law, a major includes general legal disciplines (history of legal thought, philosophy of law, history of Estonian law, etc.) and specialised disciplines (civil law, commercial law, criminal law, constitutional law, labour law, administrative law, etc.). Obligatory minors have a supporting role in legal education, in that they include such disciplines as ethics, history and theory of economics, logic, Latin, philosophy, sociology, Estonian, and civil protection. Optional minors are specific legal disciplines concerning either private or public law which serve the function of specialisation. Electives are subjects chosen by students to which no speciality restrictions apply. At present, the Faculty of Law offers 18 electives.
From 1945 to the second half of the 1980s, the main emphasis in the teaching of law at the faculty was on public law. This was conditioned by the needs of the society. About two-thirds of all disciplines taught concerned public law, while private law courses constituted only one third. Much attention was paid to the instruction of legal theory through the corresponding branches of substantive and procedural law. To a certain extent, the history of law and of legal thought as part of the philosophy of law were taught. Legal sociology was not taught at all, unless the Marxist treatment of the state and law could be considered a sociological analysis of these phenomena. Today, the proportion between public and private law disciplines has significantly changed so that about one-third of disciplines belong to the sphere of public law and two-thirds, to that of private law.
However, it is evident that a change in the proportion of legal disciplines taught does not bring about the desired qualitative results. A change in the content of the teaching process is also called for. In this respect, the contribution of visiting lecturers at the faculty in recent years has been enormous. The activities of visiting lecturers who have worked at the faculty within the framework of the Euro Faculty, the Civil Education Project and the Fullbright Fellowship Program are particularly noteworthy.
The basis for the duration of studies is the academic calendar. The beginning and end of the autumn semester and the periods for the winter and spring examination sessions at the university are fixed. In discipline programmes, study weeks are determined.
The administration of the faculty follows academic traditions which are also reflected in the faculty by-laws. The activities of the faculty are directed by the Dean who is elected from among the regular professors of the faculty for a term of three years by the regular full-time academic staff, researchers and members of the faculty board. The faculty board is the highest collegial body of the faculty. The membership of the faculty board is composed of the Dean, Assistant Deans, Heads of Institutes, the members elected by the regular full-time academic staff and researchers, and student representatives at different stages of study. The same person may not be elected Dean for more than three election periods. Members of the faculty board are elected for a term of two years. Student representatives are elected for one year by the student government.
The Faculty of Law is composed of the Institutes of Public and Private Law as structural units of instruction and research. An institute is a structural unit of instruction and research of the faculty which unites professorships (departments) with similar profiles. The Institute of Public Law comprises the Departments of Comparative Jurisprudence, Constitutional and Administrative Law, Criminal Law, Criminalistics and Criminology, and Procedural Law. The Institute of Private Law comprises the Departments of History of Estonian Law, Civil and Commercial Law, Private International Law, Environmental Law, and Labour and Social Welfare Law.
Institutes are headed by directors who are appointed by the Rector for a term of up to three years from among the regular professors or, as an exception, from the associate professors of the institute, on the proposal of the Dean of the faculty. A professorship is the office of a regular professor which is designated by speciality and includes academic staff, researchers and employees whose work is directed by the professor.
The faculty by-laws consider employees working under employment contracts and the students enrolled at the faculty as faculty members.
Unfortunately, despite the passage of laws and the adoption of secondary legislation, there are still areas which remain unregulated. This concerns, first and foremost, relations between students, the university and the state. It not clear who is responsible for the quality of university education and how. Neither is it clear whether the university must only establish conditions for the acquisition of education or whether its duties also include the regulation of students’ rights and duties, and the responsibility for ensuring quality in education in the organisation of instruction. However, there is no doubt that, due to its normative foundation, the Estonian system of higher education has moved closer to the so-called Anglo-American university model which is characterised by a relatively liberal attitude towards research and a liberal relationship between the university and the state.
1 Riigi Teataja 1925, No, 122/123
2 Riigi Teataja 1936, No. 54
3 Riigi Teataja 1937, No. 78, Art. 641
4 Riigi Teataja I 1995, 12, 119
5 Riigi Teataja I 1995, 23, 333
6 Legislative drafting in the regulation of the sphere of education has never been a one-directional process. Although, today the Estonian university system has taken a significant step towards being a legally regulated sphere of education, several researchers involved in the drafting of the corresponding Acts note, “...some political figures are not interested in the content and quality of the law, but in the need to show that the bills were drafted at their initiative.” See also I.-M. Orgo. Universities at the Mercy of Politicians. Juridica, 1993, No. 3, p. 48. Certainly, such situation is not only a characteristic of the normative regulation of the sphere of education. At the birth and, to a great extent, restoration of a national legal structure, law and politics often intertwine. Since political decision must, as a rule, precede the regulation of a specific sphere of life in society, the content of the political decision depends on the dominant political force. However, new political forces make new political decisions, the transformation of which into the language of law is the task of lawyers. So, at times, universities have also been at the mercy of politics.
7 The transfer of public law administrative functions by law to independent legal subjects is known as democratisation. This means that, side by side with the state, there exist legal subjects which are legally equal with it and which also perform public authority functions. See also K. Merusk. Legal Status of a University. Juridica, 1995, 5, p. 183.