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_1
Preface
lN SWEDEN wrI,I, TELL You, II You AxE FoRin their talkative mood, how deeply imto
find
them
tunat€ enowh
pressed they were in their university days when exposed to the teach_
ings of the Swedish philosopher Arel Haegerstroem and his pupil,
Lew Profesgor Andere Vilhelm Lundst€dt. The impact was due to the
message: ghts and duties did not exist, they were simply supersti_
tion. Such a message, received du ng their formative yeals of the
hopeful recruits to a venerable and increasingly formidahle bureau_
cracy, had an enormous socid impact The whole civil sewice could
thereefter find nothing r€al in this world but pooer. the lest was su_
pentition.
I was myself blought up in a lawyer's world, but in my own environmeDt p€ople for various reasons remained scepticsl about th€
haegerstroemisn message. Many factorB combined to glve me a more
inte;national outlook than most of my colleagues in Sweden; perhaps
it was my yeals with the Swedish Navy and my long preoccupation
with the world of tle intemational airlines which contribut€d the
most. My appointment to a position at the Swedish univ€rsity in
Abo-or ?&r&u ss the pure-Finns prefer to have it-in Finlald pro_
vided me with n€w insights snd a shifting horizon. It there dewned
upon me how strange it wa! tlnt there had been two great philoso_
phers at a night's joumey's distance from each other, oriented to_
vrards the same things, and still ostensibly paying ahrost no attention
ELDERLY LAwtERs
-
Prelace
to each other, uiz. HsegeBtro€m in Uppsala, Sweden, and Westermarck in Helsingfols, Finland. I began to wonder.
In the present little volume I have penetrated the story in depth. I
have found and erplained in $eat det€il t}le monumenis to a belief in
Law which were erected by the lawyeB of Finland in the crucial years
beforc the coming of the independence of Finland in 191?. I happen
to know today how imporhnt at one time these events were held to
be by many lawyers in Sweden, how they indeed had shaped the attitude in the civil seNice. The conhast st.uck to the civil seNice for
which I was trained myself tumed out to be a reflection of the impact
of Haegelstuoem's t€aching, and when you look at the story in full, it
comes out that Bomething is missing in this teaching. It could not
equip a bueaucrat to deal with the world that once was facing stemly
the civil service of Finland.
I
hsve thought that this attempt of mine at analysis had a mes,ot only for a civil seNice being built on the foundations of a
haegeBtroemian teaching, but also for the world at large, a world that
hitherto has taken only a marginal interest in Scandinavian lsw and
bureaucrary in general and in the fate of the Swedish minority in
Finland in padiculat. The communists look folward to a day of order
without laf,,, bless thei! hearts; the Swedish Socialista hope to be able
to arrive at that same world by more demoqatic means than the othels find necessary. If there are defects in the philosophy of Axel Haesage,
gerstioem, the great Marxist-leaning philosopher of Swedish
socialism, perhaps these defects then me t the attention ofthe world
at latge contemplating today's strange reception of the Socialist view
of Iaw almost throughout the whole of Europe.
Attempting to r€ach an sudience both in Europe and in America,
all the classic difficulties have pr*ented themselves. I have attempted to solve them in much the seme way as I did in my doctoral
dissertation "Air Charter-A Study in Legal Development" (Stock,
holm 1961), thereby perhaps fully plessing neither American reade*
nor European ones, but hopefully getting the message through. In one
respect though, I h&ve advanced fudher than in the dissertstion. I
have consistently stuck to English and I'rench, which means that in-
sofar as quotations from Swedish (and occasionally even Finnish)
o ginals are concerDed, I have myse)f throughout provided a translation into English. Whenever possible, I have given teferences to standard works in English (Kirby, Mazour, etc) which the reader hss a
reasonable chance of finding in the UDited States, rather than referring hinr to 6ore o ginal works in Swedish or Finnish which canDot
be found there. This does coDfer a certaiD aura of superficiality to the
oresentation, but the reader will have to accep! that my undergtanding of what I deecribe is not based on these works etclusively'
Speliing is a curse. My hero's name hag a Swedish spelling that
cann;t even be reEdered oD an Amedcan tfewriter. I have angli-
cized it throughout to "Haegerstroem," although thk is not the
epelling he used himself, nor the one appes ng on liblary cards'
What i convenient with a name appesring on each and every page
however, iB not necessalily so with names which only occasionally ap_
Dear in the fooLnote apparatus. There I use the original apelling how_
ever strange that might seem outside of Scandinavia
Hoping that theee explanations together with the selection in the
Iist of abbreviationB will facilitate the rcading, I am
Yours very truIy,
Jacob W.tr'. Sundbery
Contents
PREFAcE
Lrsr oF ABBBEVIATIoNS
uiii
it
"TBE GovERNoB" By JoHAN LuDvrc RuNEBaRc
I.
ThE PBoBLEM
1
1. HageEtro€m's Renovvn
2. The Mystic Passas6 2
II.
I
LooKrNG ro& AN EX"LANATIoN
1. Hagerstro€m ard rinhnd 5
2. Constitutionaltum 15
3. De8pottun 23
4. Asiatic Despothm 25
III.
31
TtrE MoNUMENTST o CoNSTITUTIoNALTSM
lntmduction 3l
2. The Abo CourtofAppeals
(a) I.i.oduction 32
1.
32
(b) The Manifesto Concerning a New Consdiption Act, 1901
(c) The Abo Cou* ofAppeal snd the co€sack Riois 39
3. The Manifest of Nov. 4, 1905, R.lating t Measur€s
to b€ Tak€n for Restonng the Las'ful Order
in the
Country
43
&5
Codtefis
i!
4. The Vibors Court ofAppeab 45
(a) Introductior a5
(b) The Equalization Act, 1912 47
(c) in re Sobetoo 4a
5. The Ke.€nsky Manifest on ConfirniDs the
Constituiion of the Grand Duchy of Finlud and
tr'ully lbplementing th€ Same, 1917 5l
6. What Brought the Monuoent! Into Being? 55
?. HaeseEtro€m and Finland Once More 60
Tlrr-p or
INDEX
Srmrrps
65
67
List of Abbreuiations
Am. J.Int.
FFS
Lucifer
L.
Ame
can Joumal of Intemetion.l Law
Storfurstend6met Finlands Fdrfattnings-Samling
Lucifer. Tidning utgiven av Finlands svenska publi
cistf6rbund
The Gouernor
by Johan Ludvig Runeberg
Nore. This re@rLdble petu (in the Swodish oris,nll col€d "Ltlabb6vdinger"),
equally populE in Sw€d.n sd Finl,rd in the dal. or At€l HacseFrren, ddribB
th; adiiud; or Olof WibeliB (1?s2.1823), Governo. of the prcvince of Savo-Karelia in
1803-1809, when ioid by th. Rusis G€n.ral Fredrik V nel4 voD Burhevden
(1750-1811) who coManded th. RNien fores havilrs conque.ed the province, io
ounish lhe fdmilid ufihme sho str,l carned uru.Aarmr lhe RGsi&s. To lhe pr.'
S'o.ialilt bureaufia.y, (his pdb *s kn u rhe rn.dartion of the noble las?eis sr'
I'hen stood Wibelius at his judgment board
Wher€ Sereden's lawbook lay.
He weighty laid his hand upon the book,
And, fited upon it, shone hh glanc€s clea.i
"Sir General, upon the shield you look
ofihose you threaten heE."
"Heae lies our weaponle$ security,our Laqr-our heaaure great in joys and needs.
Your Ruler to revere it did agee;
for His support it plea&."
"Herein for ages the decree has stood:
The c minal shall bear his guilt aloDe.
No man for clime of wife sh6ll be puEued,
nor she for his atone."
"If'tis a c.ime to fight for native laDd,
tonhich all noble hearts reply:'Not so',
tele veDgeanc! then on men with sword in hsnd,
on babes and women,-No!"
''You c,on. The power belongs !o you !o-da,.
I am prepared. Do with me as you will!
But Law preceded me; when I am clay,
'twill hold dominion etill"
ix
I
The Problem
1.
HAEGERSTROEM'S RENOWN
During the post-war pe od, there has deveioped a gowing interest
among English-spealing scholals in the Swedish philosopher Axel
Haegerstoem.r Testimony to this int€rest is Robert Sandin's article
on "The Founding of the Uppsala School" of 1962,2 Passmore's erticle "Hiigerstriim's Philoaophy of Law" of 1961,3 John Trentman's
article "The Uppsala School end the New Logic"of 1967,4 Geoffrey
Macoormarck's articles "Haegershoem's Msgical Interpretation of
Roman Law" (f969)5 and "HdgeBtrdm on Rights and Duties"
(1971);6 and N.E. SimEoDds' article "The Legal Philosophy of Axel
Hdgerstrdm" (1976).? At the World Congess on Philosophy of Law
and Social Philosophy which was held in Basel in lg?9, HaegeEtroem
was the subject of a paper by Jes Bjarup.s
However, the fame which the dead philosopher now thus enjoys is
in fact of comparatively recent oligin outside of Sweden and
1. HageBtr6b b the Swedish speling.
23 Jo@alof theHbioryof Idea496-512 (1962).
3. 36 Phil@ophy 143 (1961).
4. 28Journalof theHistory44S-l5O(1967).
5. The I sh Juibt 1969, pp. 153-169.
2.
6. The Juidi€l Review
19?1, pp. 59-
7- The Juidicrl Review 1y76, pp. 210 228.
8. Bjarup, "Raaon dd Puio.. A Buic laeb€ i. HiEeBildm's Legol
l
PhilM-
H^EcrRsrRoEM
^ND
FrNL^ND'S SrRUccL! roR
Lav
Denmark. It stems frcm the translation i to English of some of his
writings which commenced in the 1950's. Reference should here be
made to HaegeBtroem's Inquiies into the nature of law and. moroLs
(transl. by C.D. Broad, Introduction by Karl Olivecrona),
Uppsala 1953; and PhiLosophy and Religion (transl. and edited by
Robert T. Sandin), London 1964. Before that, one is hard put to find
any haces of an impact of his thirking except in Sweden and also
Denmark. Haegerstroem is still not allotted any space in the
Encyklopedia Britannica (19?3), although the Encyklopedia fully
covers his contemporary and rival, Edwad Westermarck who-as
will be developed more fully below-was a professor of philosophy
who in many way6 shared his interests and inclinations.
At a world gathering of philosophers and legal scholaB in
Helsingfore (Hehinki) where Westermarck held his chair in pmctical
philosophy during the decisive years of the development of
HaegeBtro€m's Iegal thinking, it would seem well warranted that
some of the issues should be addressed which link Haegerstroem's
philosophy of law with Finland and her famous stuggle to preseNe
her legal order which took place in the years 1899 191?. In Swedish,
the leading language of the time, it was known aE "tdttshampen":
'the struggle for law'.
2,
THE MYSTIC PASSAGES
When writing my book on the history of sources-of-law theo es and
practices in the Nordic connlr],es Fr. Eddan t. Ehel6l (transl.:'From
the Edda to [Professor] Ekel6f), I made much use of some passages
in Haegerstroem's writings which seemed to support beautifully my
own thinking. They were mther categorical statements and Haegentroem had put them on pape! without any discu$ion or refercnce
to supporting mate sls. Indeed, it would seem that he held them to
be nelt to axiomatic propositions. However (although none of my
reviewers has challenged my use of these passages) the more I came
to think of them, the more mystic they $ew, because they did not fit
particularly well into Haegerstroem's own thinking and it was sometimes even t€mpting to believe that they had gone into his text by oversight. This was the starting point for the present inquiry which
attempts to show that these passages must be read in the light of the
legal events that were teking place in Finland during the formative
yearc of Haege$troem's legal thinking.
Ch.Il?he
hoblem
3
The m]stic passages read as follows (iD Broad's hanslstion):
But, wbere pure despolism or mob'rule ellsts. one mav queslion
whethe. tler€ really i! any lesal ordei'
furthernore, ii we consider t]rc case of a law pa!€ed in a constitu'
tional state bv l.he monarch md the r€presenElive aseemblv acting in
rhe idea of a command or s dPclaralion ot intenlion appears
ssa nere iuridica.l fictior.
Now ii, in consuirut ional sl,€lcs, the supreme aulhorilv must base il'
sell on rhe established consutulion in all lesislation il follows thar tro
coNi itutional rule as sucb (m be des.ribed as a mere mmmand or dec-
."-mon.
Lration of intention on the part of the possessoB of powe"o
All the passages appeared for the first time in a lesser treatise
which Huege"st o-"m pulfshed in 1916 in Swedish under the title "fu
galande lrtt uttryck av vilja?" (transl. "Is Law iD Force a Matter of
Wi[?") in a l;Der arricorum for ihe philosopher Vita]is NoBtroem.
Due to the impact of this work of Heegerstroem and its continuation
"Ti[ fragan om den objektiva dttens begrepp" (tmnsl. "A look at the
question of the notion of objective law") (1917), Haegerstrcem was
$eated a doctor juris honods co6a at the UniveEity of Uppsala on
October 31. 1917. Commentins in her biog&phv on her father upon
the story of these two works, his daughter Margit Waller writes as
follows:
Already in the years inmediatelv followins upon }lis appointment
a! a Profdsor 1911 he rcsumed his research into the philosophv o{ law'
Now, he attacked the problens taking his investigations in the theorv
ol emoirv and vslue as a depsning poinl. He wanled Io show $ar emo_
tionai t hink;ns, pribit ive ;asic aDd supersrilion had remained als in
the field of h;, in spitE of the fact that modern lesal science had reiecred Narural Law. Accordins to HaeseBlroem s s(€ndpoint.lhe legal
;rder is onl, a syslem ol rules implemented in a.rual pracli(e mde tor
the so calleit organs of Stat , which orsars themselves are det€rmined
bv tbe rules. When vou sav lhat the individual cilizeDs have righl-s ol
Ihe one or uh€ olher kind, onP can thereby onlv mean rhe benefiis lhal
a.e confened upon then by the prevailing svstf,n of .ules. lf vou trv to
make the noti;n of "risht" mean sonething else, one cannot avoid
endiry up in superslir ious ideas sboul supe.nolural furces.
The new posilion in legsl philosophy which 6v fBIhe. thus
h,d adoDred. was oresenred tor rhe firsl lrme in a lesser
trealise, Ar sallande drl utlry(k at vilja. in the li6er anrorua for
Vilalis Norslrom (1916). and rhcn in the paper Till fr:gan om
jektiva riittens begepp' ( 191?).11
deD ob-
9. Haeserstroem, Inqui.i6 inlo the natu.€ of lae ald norals, p, 35.
r0- Boti quotes a.e taL€n from Heegersiroen, lnquiri€s inio the nature ol law
11,'vareil Wsller. H&.Blrom mdnnhlan suh
20.!
f.
l,
ed
qande SlGkholD 1961. p'
H^EGERsrsoEM
^ND
FrNL^ND'S STRuccrx ron Law
Accepting this description of the creative process, it follows thst
the mystic paEsages sre likely to reflect thinking from the time before
1911, the year when HaegeBtroem got his professorship. In fact, it
should go back to the time before 1904 sthich was the year when he
put out his first work in legal philosophy.
The mystic passages are remarkable depmits in Haegerctroem's
writings. It is sometimes noted that he had an unaccommdating way
of w ting. "Frequently, obseNations crucial to the completeness of
the argument sre m&de at unrelated points iD the text and gre not re'
peated. . . . Many basic concepts are left unexplained and their
meaning must be gathered from their context."r'One ofthe most re_
markable voids in his wiitings is that he offers no definition of law,
although the search for a definition of law is, not unjustifiedly, often
regarded as the central concem of jurisprudence. It should help when
an individual feels bound by different normstive s]stems and this
produces an insoluble mnflict of duties within him. I will on this
point quote Simhonds
It codd be a4ued that the cenEsl concern ofjurisprudence is with
propditions such as "Thb is a valid law but it is unjBt" oi "This tu a
valid law but I have no oblisation to obey it." Arc such propositions
selfconhadictory?
Now this second enterprise that I have desfiibed is one that
Higerutrijm's point of view flrles out. To him, nomative utteranc€s 8re
not genuine judgrnent! and, b€ing incapable of truth ftDctional analysis, cannot stand in losical relations to each other o. t genuine judg-
m€nts. CoBequently, no question
of co tradiction can arise. The
problem of the relationship between legal validity and Eoral validity is
simply not a poblem at all for Higemtr6n.l3
But if this is so, undoubtedly, an enormous interest must go to the
mystic passage in which Haegerstroem has arrived at the conclusion
that something is not law, not a legsl order.
or is there more in it than meets the eye?
12. Sinmonds, Th€ Juridical R€view 19?6, p. ?10.
13.
Simonds, 'me Ju.'di.al Revies
19?6, p. 224.
IB
this
pa-ssage only a
slip,
il
Looking for an Explanation
1,
HAECERSTROEM AND FINLAND
HaegeBtroem was the son of a pastor and was raised in a tbreegeneration family irhich included his gsndmother, Charlotta Skarin.
We may here listen to Margit Waller
Charlotta Skarin ws bo.n in Finland in 1814 by Swedish p@nts.
Her father, Erik Bjork, was a nerchant in th€ city of Vasa, but he se@ed with th€ help of relativ€s in Sweden the office of po€tDalt€r in
th€ locality of Svenljunga lin Sweden properl and xnoved with his faDi
ly to Sw€de. when Charlotta wa! nine yearE old. When crGsing th€
Botnian Gulf, the vess€l surk (a charter€d sailins ship) and all then be-
longin$
were lo€t. However, those on board were rc€cued.'
Axel's home havins by way of hi! glardDother a dircct relationship
to that Finland which is beiq descib€d by TopeliB in his sritinsE,
Topelius' poems and stories werc there like in nay other Swedish
homes-beirs read aloud.r
In fact, when Topelius died in 1898, Heegerstroem let be known
such a high appreciation that a Swedish reviewer from the 1960's
felt forced to add that "it might surp se a present-day [Ssredish]
Likewise
l
it
was with the author Johan Ludvig Ruleberg, who in
Waller, op.ciL, p. 1?.
2. Wsller, op.cii, p. 1!8.
3. Ahlberg, Smiid eb Fr@iid
5
1962, p.,14.
H^EGERSTRoEM AND FTNLAND'S
SmuccLE roR L^w
1848 in Finland had published a veBfied account of the war in
Finland of 180&1809, by which the Grand Duchy of Finland, the
Islands of Aaland and some p&ts ol Svreden proper werc *aestled
from the Crown of Sweden snd tumed over to the Czar of Russia.
Runeberg's poems, published under the title of The Tdles of Ensign
Sfrl, glorifyirlg the bravery and toil of the lost eampaign against the
Russians, became the favourite rcading in both Sweden and Finland
during the late 19th century. It is from Runeberg'B work that
Haegerstoem fetches his lines when he shuggles with his rcIigious
upbringing.{
Moreover, when Haegerstroem as a young student entered the
University of Uppsala, student thinking was increasingly being
focused on questions of Scandinavian identity along lines parallel to
those of Pan-Germanism ald Pan-Slavism, but also in a vague opposition to the latter that seemed to be threatening what remained of
the Swedish identity snd culture in Finland. At a dinner in Uppsala
in 1932, four professors sitting together, among them Haegerstroem
and Westermalck, suddenly found out that they had all been together once before, 45 years ago, at the Skoklost€r festival 188? that had
been organized by the students of Uppsels. The incident is touched
upon in Westermarck's memories:
e
Th€ Student Union lin Helsinsfors] had accepted
irvitation to
send three represenl"elives [o the Inawuration of the neE universily
building in Upps€lai to oy astonishmeor. the [pure-] Finnish membeB
of the Union named me as one of their csndidat€s, a number of Swedes
supportad the candidature, ard I wa! elect2d by a large Dajority. The
inausuration, as may esily be imasin€d, was a hilliant sffair in every
In one respect I think it exercised conBideEbl€ i.fluence upon my
future. It had b€€n arans€d that on the ercursion to Skoklo€ter, I was
to be ihe speaLer to respond on our beha.li I was canied doear to the
steaEe. to the strains of the Bji;meborsarnas marsch. (The Dost popu1e march in Finland, with words by its seatest poet, Runebers, Tramlator's Not€)-ar honour, of couse, Dot done to ne perconally, but
only as a repres€nhtiv€ of Finland and ny speech was reported at
lens$ in the Stocklrclm Piess. It amus€d, hoereve., gt€at dissatisfaction in some Finnish nempapeB, alt the more so as I had beeD sent t
Uppsala by the Finnish students; ed it was even stat€d that dis-
ciplinary meswes asainst
ne
were contemplat€d by the authon,
At any rate, it attacted a certain amount of att€rtion to my insisnificant per:on and I hav€ reason t think that it was th€ chief cause
4. Ahlbery, S@tid @h
frmtid
1962 p.4?.
Ch.IllLookins fot on
Erplanation
7
why I ws cho€en some time aIl,er ai Ch{hman of t}e Nvland Siudenrs'
Union lat the University of Helsinsfors].5
It should not surp se that Haegerstoem was watching when
Westermarck thus made his political debut Haegerstrc€m was in
these da)€ of no newspepers a main source of information for his
grandmother by regular letter w ting. Margit Waller describes the
situation as followsi
flom her roon in th€ Pastor's vard, sandnother followed with
ir l,he greal world. be ir the Narsen er_
to ttie Nonti't'ole ;r t.tle Dre)'fc affaiJ io France. But shat
seems t have kept her thinking most Peoccupied were the nove8 on
the scene of worla poltiG..Atel i! being thmked for the political survevg which he has siven her. Sbe tls him that she is alwavs l@king
intensi(y the happenings
creat
-peairion
forward [o theb wiih Ereat inlerest, be.ause as she puls it hcBell she
never crows tooold for Politic'{
Tiire and asain in these letl.€rs' Haesersrroem relums to the isue
o{ l.he resismni of lbe Finns against the Russian arr.€cks on lbe au-
tonony of Finland,
so
prevalent in those davs.7
At about this time, Finla:rd indeed came to offer much to report
for a dutifirl correspondent like Haegerstroem.
DuriDg fou! ceDturies of continuous expansion, Russia had extended its dominion over Finland, Estonia, Latvia, Lithuania,
Poland, Georyia, Armenia, Azerbaijan, and many other non_Russian
es. Indeed, at the close of the century, aheady, non_Russians
ter to
constituted a majo ty of the total population of the EmpLe. Na_
tional consciousness among the mino ty peoples then received a
strong stimulus from the Russian govemment itaelf. Inspired by
Pobedonostsev, whose political philosophv pervaded the era of the
last Romanovs, Alexander III and his son Nicholas embarked upon a
progam of Russification, an attempt to force the inhabitants of the
irontier provinces to suppress their own national haditions and rec'
ognize the supremacy of Russian
cultue.
Four yesB after Nicholas had ascended the throne, GeneDl N.
Bobrikov was appointed Govemor General of Finland. Bobrikov's ad_
vent tum€d finhnd into a world problem.
One of the Russian preoccupations was to co-ordinate Finland's
military system with that of Russia. The Finnish consc ption la\{ of
18?8 had Iong been a thom in the flesh of those who favoured the
Russification of Finland b€csuse of the special status it confened
s. W*terDarck, Menori* of My Life, 1929, p. 69. Th€ incidelt in 1932 is re_
ported in Rolf Lagerboig, "Edvard Westernarck @h v€rL€n fran h@ verkstad und€r
IaB tolv sista lr 192? 1939," Hel€i4forc 1951, p. 207.
6. Waller, op. cit-, p.19
?. Walle., op. cit , p. 154
H^EGERSTRoEM aND
Fr^,
ND's STBUGGLE
roi
LAw
upon Frinland'B armed forces. In Jllly 1898, the Czar unexp€ctedly
convoted the Diet of Finland in extra ordinary session for Jaruary
19, 1899. Th€ new Rursian Minist€r of War, Kuropatkin, &afted an
armed forces bill, but the Senat€ of Fitlland, by a unanimous vote,
urged the rejection of the bi[. T'hen, very quietly, the Act which has
corDe to be known as the February Manifest, wa.s prepared and signed
by t]rc Cz5I on February 15, 1899. According to its wordiDg, the purpose of the document was merely, by way of "supplementiDg regulations now v9lid," to est€blish and thercefoth folow a hard and fast
procedure for i$uing All-Empire legislation. That meant that henceforth bills would be initiated and drafts examined by the Russian
authorities. Fintl decision would rest with the Czar. The Diet of
Finland could do no more thsn express an opinion on whatever legis'
lation was contemplated. The Manifesto meant a coup d'etat staged
by the Czadst Government.
In Finland, a deep split in leading opinion came to the surface.
The Old FinDs-hoping to hake the pure-Finnish ethnic element
profit by suppoting the Czarist regime against the entrenched
Swedish element-adopted a policy of compliance and concession.
The vote8 within the Senate in Helsingfo$ resulted in a draw, and
the manifesto wss promulgated in Finland on February 18, 1899.
The asssult on Finland's Constitution was followed with concem
in many European countries and perhaps consternation since it coincided with the Czsr's great initiative to have the 1899 Hague Peace
Conference convoked.
A great effod was organized in Europe, cente ng in France and
Englrnd, to set up an Intemational Address to the Czar. This document had been devised by a numbe! of expatriates from Finhnd, who
worked assiduously to present Finland's case in the Westem nations.
Westermarck was at that ttne active in England and helped cotlecting distinguished supporteB of Finland's cause there. Among the
BupporteN was Professor Frederick Pollock, at that time Oxford
Professor in Jurisprudence. When the Intelnetionel Addr€ss was finally sigaed in Stockholm in May 1899, it had been circulating in
Uppeala for signatures. Amorg the better known could be noted
professors A.E. Nordenskiold (discoverer of the North East Passage
and o ginatin8 in Finlard), C.Y. Sal16n, Henrik Schrlck, Herman
Ahlqvist, S.O. Henschen, Adolf Noreen, C.P. Nyblom (publisher of
Runeberg), and law professors Hugo Blomberg and Joh. Hagstlomer.
Haegerst oem seems to have been a sceptic as to the eff€ctiveness of
the addreBs. He wrote to his gandmother: "?he appeal of the Finns
to Europe will not help them."3
8. Wall€i,
op, cit-, p. 155
Ch. IllLookins Jot an
E planation
e
An internstional deputatioD, headed by a Frcnch Senator, weDt to
St. Petersburg witll the address which had been signed bv rnore than
ore thousand-penorx. It was turned away by the Czar, even b€fore it
had chance to ask for an audielrce.
If Uppsela was deeply affected bv the international addr€ss in
1899, so was it by the eventB that wele to IoIIow'
The real tesi of Bobrikov's policv crme to be the new Military
Seflice Law tbat was promulgat€d by Manifest (without the assent of
the Diet of Finland) in 1ml.e The conscriptron lely based on the Dew
law however, was a digaster for the Russians, aDd was accompanied
bv unrest that was subdued bv calting upon the Cossacks garrhoned
in Hel"ingfot". A ca-se arose before the Coult of Appeals in Abo
(Turku) w:hich took the stand that only constitutionallv adopt€d laws
could have legal force in FiDland. Bobdkov theD secured dictatorial
oowers bv me;ns of an ertraordinary law lhat had been prepared in
oeat seciecv in St. Petersburg and which was published bv the Senite of Finland on April 15, l903.ro The edicL gave Bobrikov lhe tight
to exile penons deemed "hostile to state order or to general peace "
In cases which could rlot suffe! postponement, the Govemor General
could oder banilhment without trial and det€rmine th€ plece of exile, inside or outside Russia. The measure wss immediat€ly applied to
53 persons, 43 were exiled to Sweden and 10 were sent to Russia' The
maioritv of those etiled chose to tske up residence in Stockholm' but
eventually some settled in Uppsala and other places in Sweden'
Among thoee ociled to Sweden was the Rector Magnu3 Ro€endal,lt
who-hav"ing received edvance warDing-took the steamer from Abo
on Julv 24. 1903. He was dismissed from his Leaching position in
Firlani on September 7, 1903 Same dav he moved to Uppsala' using
the 6tay to write a maior work on the history of the Pietism in
Finland'. Rosendal and his wife frat€lnized in Uppsala mainly with
D€oole in l,he relisious circles such as Profe$ors V Rudir' and Xatl
't,torrby,
but also with dr Frars Scheele,laler Professor of Philosophy'
It would be surprising if, in a small universitv town like Uppsala,
the arrival of a celebrity like Rosendal from finland had not been
noteil by HaegeEtroem who€e difficult rclationship to Eligion must
huve -ade hi- even -ole obs€rvant of a man Iike Rosendal'
Rorendal's memories do not mentio, Haegershoem, however' He
stayed duing his sojoum mostlv at St. Larsgatan'
What is certain to have focused HaegeNtroem's interest on
9. FfS 190r No 26P.l
10. ffs 1903 No rg
ii. b',"t".1"iJ p*
I" Lte srrussle lor Lsw seP Esrlandrr' Elva artiondetr ur
"
l??'I80cf 134.204
I898.1908,Dp.
Finlind"hiqLria.'lll.
10
H^EnERsrRoEM
^ND
Frr^ND's
STRUGGLE FoR
L^w
Finland, finally, is his stlange relationship to Edward Westermarck.
These two professols of philosophy-indeed, of Practical Philosophy
as the chair was named both in Uppsala and Helsingfo$ teaching at
no greater distance ftom each other than one day and night's passage
by steamer, both heving Swedish as their mother tongue (indeed,
Westermarck refused to give his test lectues in Helsingfors in any
other language than Swedish), may be compared to each other with
considerable profit.
Westermarck was six years older then Haegerstroem.
Westermarck was born 1862, Haegerstroem 1868. In 1889
Westermarck publishes his major work The Origin of Human MaL
rioge. In 1895 Haegerstroem publishes a paper titled "On the moral
feeling and urge as being rational." In 1897, Haeger€t.oem continues
his work on morals by publishing a new paper called "On the'enpirical ethics'and the'moral feelings'." In 1904, West€rmarck is
made Appointed Teacher at the University of London for three yean.
He competes for the Chatu in Philosophy at the University of Helsingfors, but loses to Arvi Grot€nfelt, (it may be suggested that the
outcome was patly dictated by a feeling among the authorities that
Westermarck was unsympathetic to the Russians). In 1906, however,
the Russians having beat the retreat in Finnish matters generally,
westermarck is asked by the Univemity to accept the Chair in
Practical Philosophy. His inaugural lecture is being held on October
13, 1906 and is devot€d to "The influence of magic in legal ideas." In
the years following, he publishes in two volumes his work on ?he Or!
gin and DeDelopment of Moral ldeas.
In 1908, HaegeBtroem publishes a series of lectures called "In
questions of moral psychology" and the following year "Sociel
teleology ir Marxism." In 1911, Westermarck gives a series of lectures on "The history of customs." This year, Haege$tro€m is made
Professor of Practical Philosophy at the Univercity of Upp$la. He
devotes his inaugural lecture to the subject "On the truth of moral
ideas." Westermarck proceeds in 1912 by publishing a paper "From
the history of customs," and again, in 1916, a Swedish version of
his two volumes from 1906-1908, called "Moralens uppkomst och
utveckling." It is now that Haegerstroem turns to the philosophy of
law again by his paper "Is law in force a matter of will?". In 191? he
starts a series of lectures on the subject of the origin of legal ideas.l'zAfter a critical article on "Natural Law in the science of Penal Law,"
published in 1920, Haegershoem turns to the relationship between
12. This series is refle.ted ib the posthumous publication of th€ paper
"Rattsideers uppkomsi" in Alel HaeseBtritm, R.dtlen dh staten, tre fdrelasninEtr
om rnfts- och statsfilosoli," utsiwa av Mariin Frie., Stockholn 1963.
Ch.Illlooking fot on
E.plddation
11
state and law and starts a sedes of lectures oD this subject in 1924.13
Then again he delivers two major works on the o gin of the Roean
legal ideas: "Der r6mhche Obligationsbegriff im Lichte der allg€miinen r<imischen Rechtsanschauung" in 1927 and "Das magis_
tratische ius in seinen Zusammanfassung mit den r'6mischen
Sakralrechte" in 1929. WesterEarck, oD his side, finallv in 1932' same
year as he is being made, under HaegeBtroem's auspices, an honorary
doctor of philosophy at the University of Uppsala, publishes his book
Ethical relatiaity.
Professor Timothy Stroup, in his Oxford thesis of 1977, devoted
to "Westermarck's Ethics," has made the following obsewation:
If Kant's effect on West€marck was wholv Degative' that of Arel
Haserstr6m aDDears 10 be notr_elistent and this is strange for
Weir"rma'cu ,j'it Haserslriim were $e rwo leadins Nordic wiueru on
noral loDi.s, were boih scepli.al ;n oudook. and wPre separsred geooD
sraDhicilv bv onlv a short dist€nce YelIhereisnorecordIbslthevin_
terchmsed ideas at all. u
H;s;rstr6m does dis.uss wesFrmarck s Po€ition in several ol his
but Wesl.ermsrck makes vinuollv no Ioenrion of Heserslritm
ar an: ihe lhJee relerences in Athcdl R"latruirv 5re all to HaseBlr6m s
Mitin;.
study of Kant.'5
To this, Stroup has added the following footnote:
HAseEtri;n, 190?, passim; 1911, pp. 16, 27; 1952, pp r5, 18, 198'
Peterc;n, r9?3;pp.95'9?, has plausiblv arsued that w$t€rmarck had
a definite effeii on Hagerstrdm's ethical concerns: until 190?
Hesemtriim had not devoted nuch att€ntion to the subject, but the apoealarce of Ifie Oriein ond DeuQlopnP^t ol thc Motdl ld"as stimu'
(Hdser€lritm.
ialed his inl,erest! and resulted ibmediaElv in an artic]e
190r.
Analyzing the two professols, Shoup aEives at the lollowing over-
for Haserstrob tbe moraljudsmenl ws essentiallv emotive Lile
Wesr.ermarik, HaseBtrijm betjeved rhar tlere were no absolute objcrtive noral truths. ;hat "noral philosophv cannot be a theorv in morals,
but only a theory orout morak," and that the acceptance of an
emotionallv-based erhi€ would eDcourase sreater tolerance and hu
msnity.lndeed, Heserstrom even referred t a bondinsofasubjedive
ooEiti;n onlo lhe obiecl. But be differed from WeslerDtrck in ofierinc a non-proposiiional account of morsl judgbents: ooral juds
menr" tack uuth ralue because thev espress onlv the aisocialion
belween an idea snd an emotion Tbjs is the poinl lhar WesL,tm&ck
seems not to have apprecieted. .. . Wesbrmarck never €€ ouslv considered the po€sibilittlEt moral judgments de not judsEents at all'
13. Beflected in the pdper "FitrhlUand€t nel}an Stai€n &h RAtten" in the above
volune ed,ied by
14. p. 144
15. p. 18,11
rria.
12
H^lcERsrRoEM
^ND
FrNL^ND'S STRUGGLE roR L^w
that they are neither true nor fabe. Consequently, he had an incomplet€ srasp o. the varied furctions of noral discouse; as von Wrisht
has observed "This is a somewhat old-fashioned f€aturc which mkes it
difficult to conf.ont his theory with the rnore pronounced views of the
conceptual analysts about the problem of value." However, with the er-
ception
of Osden and Richard's The Meaning of Meaninl, which
West€rmarck sive! evidence of havins r€ad, the €sly liteEture of
€motivism i. Enslish all postdates Ethical RelatiDit!, and hence
Westermdck can scarcely be criticired for failing to tak€ it int account. Only Hdserstii;m's writing could have qualified chronotosically
as a complement to W€sterrnarck on this €core, and W€st€rmarck's neslect of the work of his Nordic cont€nporcry is ufo.tunate, althoush
unde$tandabl€ for on€ who was not primadly a philosophical semanti
cist but rather a sociological empiricist.'6
The two professors were not enemies. After his visit to Uppsala on
the occasion of receiving his honorary doctorate, Westermarck commented: "I was so glad to have met HageBtrdm, whom I found to be
impressive, captivating, and human-indeed touchingly kind."t? But
there was a diffe.ence between them that may have cont buted to
the surprising absence of contact. Maxism meant different things to
them.
The University of Uppsala where Hegerstr6m was active was a
university of small dimensions. School building was a tradition and
persecution of those of other schools was not unknown. Haegerstroem
had made his fame p&tly by breaking the hold of the previous
Bostroemian School on Uppssla (and indeed on the Swedish buieaucracy at large), but when he and his followers wele safely in place,
they did not behave much different from their predecessors. In
Uppsala they were commonly known as the "Haegershoem loarer,"r3
and Haegerstroem's followers were held to be fanatics.te
The central figlre of this camp, Haegentroem himeelf, made his
dynemic presence very much felt. We may gain an insight iDto this
from the following little account of life in Uppsala, given by Erik
Hjalmar Linder:
In Uppssla of the 1920's, there was a Dimbus around
Haeserstroem. One would point him out in the street, a slim sentlemar
wit}l a troubled wslk and sonethins undescribably dark in htu look; bis,
brown, as it werc glarins eyes in a white face decomt€d sith downbent
16- pp. I85l
1?- Lag€$org, op.cit. p. 206 20?
r
18_ H€d€nius,
Golis! TidsL.ift 1980, p. 26, speals of ..rh€ spirir of rhe
Haegerstr@m laager,"
t9. To es@iat€ hb lollowing wit} falat'cisn wa evidently quit€ common, see e.sHerbert Tinssten, Mitt liv-tidningen 1946-52, Stelholm 1963, p. 291, where it is
bentio&d that alother sludenl {later the ledder of the Swedish CoNetuative
ty)
"in Haegershoebio famiicism," in a privat€ debate, a@used the autho. of reverting
to netaph,tsic be.aGe he had used th€ terb proportiotul juti@,
P
Ch.IllLookine tor an
Dqlanation
13
moustaches-like a Meiican bandil" one misht think-frarPd bv
sidewhiskers shich m€ryed up*srds into a huge-luft of brosn_btack
hair. He cerlaiolv looked demonical. . ll wa qutF a w re oerore ov
chance I visited; le.rure bv HaeseBtroeb.but tl'en he reallv surpfls€d
me. The man was an evangelist he had lbe r'oi8r'ancv orapreacberr ln_
,r".a. r,"
Lt'"
*o
ot
paslor and piou! be had been ooce upon a
" pulpit. he mighr' it is t'ue ar time€ look
""" t"t i'a the
ili"l.. . sitt,'i,
out oI rhe wind;w-he did not look at us i! the audiencF and it could
pace of Lbe lec'
;;;;;;;" h;;;" reconsiderins somethins thar tle
out hts slm rn
tbow
while
he
v'ould
in
a
Bur
otrce
dom.
tuiiirs slos,ed
wiih a philosoi ;-it ii;"J g*r,* *"r seemed absolut'elv misplaced
froo our lb'nlEg ^
pherwho wanted toerpelemolion
("venskrsinnad")
Haeserctroem was held Lo be leftist_minded
referred to Karl Marx as a genius {which is such an
from 1909
academic setting as Uppsala was an enormity) His study
lt
subiect
on
tlrc
a
book
indeed
on Social teteoiogy iu Marrjsm" is
running
Marxism
of
echo€s
tras been t oted '-'that there ale some
Hdgerstrbm s writings "'L
thrcush
'
i ir,i.tL.-ho*"u".. that ihe following quote from a paper bv
Haege$troem of 1933 may allow to put it a bit more strongly than
that:
ln Dv research in leeal ph;lo€ophv. I have found Man's pre€enkri." .rr-r'e iaeotocv of-la; to br panicularlv thousbt inspirinsasBva
ii".ir. ir," ia* ot iii" t'* no realitv. But it has a basis in realirv
strussle the
;;;;;i;"*;;;, the economic condir.ions. In theonlv
'l6ssin l'hese separeatu,e" .r U. rtrerelorP find thei' realilv
".I"iri"
on the du.!t" i,,Li"iG H"."Uv, it is cleff to me roo rhat rhe do'uine
ii;;i s;;" to*ui one another. irespective or their lue ibLermt€
,"J f'"'t"a
which doctrine now runs like a popda" psvchGis has no real basb al
all bul is a mere crealion of rhe imag;nation Onlv il the economrc dtl.
ficulries were to torce a world organizatioD ol productron and
in uncondieconomic ordei-would tIrc belief z
al"L-iu'rii""-,
"ota
than
dolt
no'e
anlthing
be
ii"rril"t""."ti"""t U* auties
Westermarck, on the other hand, had little sympathy for the
Marxists. In 1889 already, his doctoral disse ation "The Origin of
Human Marriage" had exploded the mvth, particularly-popular
the theo;ticians of the German Social Democ ts, that maramong_oriein't'ed
in a stal€ of general promiscuity lor communism)'
ii'n"
ttre-orv *as of the essence Lo Fr' Engels when writing lhe book
itri"
iu."o.un* d", Familie, des Privateigentums und des Staates (lst
e.l. 1i84,;dir was likewise used bvA Bebel in his book 'Die Frau
und der Sozialismus" (1883). Socialist ideals were supposed to come
20.
t"ti
Erit Hjatmar Lind€., Mitt
levande
f6rlutna Ur snaborsarms liv' Si@kholm
I 3fl.-0",
ii.
"tn" ,"ral Philmphv of Arel Hae€Bir6n," The Ju'idic'l
f
tl"ese*r.em. " M*x och r Gol-in.'Tiden 1933, p'
'!4?
Review
74
FrNL^ND'S SrRUccr,E FoR
H^EGEESTRoEM
L^w
^ND
tlue because of, among other things, the Communism, i.e. the promiscuity, that had prevailed in the primitive days of humanity. The empirical evidence collected by Westermarck allowed him to contiadict,
emphatically, this thesis, and tlis brought him the lasting enmity of
the Marxists and their sy.mpathizers."
The fact that Westermarck furthermore, during the filst World
War, took psrt on the organizational side in the so-called Jdgormovementz that was to cont bute significantly to the independence
of Finland and to the triumph of the White forces in the civil war,
brought about by the Socialist uprising, did not endear him to
Swedish Marxists. Few things so shocked Swedish Socialist circles a.s
the fact that the Red revolutionaries in Finland did not show themselves to be i esistable in the way that all Socialist teaching had p!edicted, but rather werc put down by forces which the Socialists
themselves were prone to descdbe d bourgeois.2' Volu]lteels from
Sweden proper, retuming from the war in FiDland, were made to feel
the displeasure of the Socialists.' Such factors are likely to have contributed to a certain alienation betvreen Westermarck and
Haegershoem in spite of the many things they had in common.
To summa ze theD, there is Iittle doubt that Haegerstroem had a
ke€n eye to the events taling place in Finland during the fomative
yea* of hir legal thinking and that the mystic psssages should be
reed in this light. The lack of interest or sympathy between the "two
leading Nordic writers on moral topics, . . both sceptical in
outlook, and . . . separated geographically by only a shot distrnce"
should not deceive. It does not detract from the convictions that
HaegeEtroem once had acquired and which were reflected in his pe,
pers of 1916 and 1917.
24. Emerik Oboni, "Edved West€m ck mm s@iolo( och moralfilcol" Nordisk
@h indNtri (ut8.av Lettefttedtela fiireninsen) 1938, p.
Tidstift f6r vetenskap, lon8t
430 431.
2il. The ./Agor-hov@ent w@ born oui of the
arrenent that ws reached in 1915
belw@, ..tivtub fbo FiDldd ed the Go.@ hish @mdd for a lmb€r of volu,
t€€B ftoh Finlrnd to t@ive militsly irainins i. Cetumy. With tho help of eDior
frienils she 2,000 youg Do suc@ed€d to get to Gernaby aDd prolit of the t d.ins.
Thb iriga.'nov€bent tu in senaol the Bpo@ of the Swedish-spealiDg Btude.ts to
ihe chaleDge pr6ented by the RBid dooitution.
25. In fact, this rediation had a very sbering influen@ in pohi..l t€r@.
26. Hoe vihiolic the rq[Drse wd is weU brought out by the ae@tioa lwel€d
t8dEt EIeD Ifty, a pell-ldoM fenal. Satul Dsmerat, ro h€r hNirs @t a neath
to the fuoDl seNice fo. oDe of the Whit s. Thb ad w d$oibed tu a'tt!in" or be.
shiDing shield; 3he
bd,
so
it ws
put, "brolen faith qith he! ideaL," Se Annie
Funhieim, Den.tigede oion, p. 278,
Ch.II/LookinE fot an E pldndtion
2.
15
CONSTITU'TIONALISM
Let us start with HaegeNtroem's use of the word "constitutionalism,"
recurring in the term "mnstitutional state." He offe$ no neat 3nd
tidy definition of this terminology. It is just another one of the basic
concepts left unexplarned. Its meaning must be gathered from a con_
text. Let us look at what the Finnish_Russian contert r' 1 convey.
The Russian EDpire, aft"r its rcorganization bv Pet{r the Great in
th€ beginning of th; eight€elth century, was an aholute monarchv
The adsolut.poser ofthe Emperor exl.ended t fie whole Ierritorv of
lhe Empire; ;e Crand Du.by of Fintand. however' wbose throne {ac
cordins to Article 41 of the FuDdamental Stat€ Laws) 'is insepaEble
fron the Impenal thone of AI Russia,' had its own public lav, accordins to which the Grard Duke was a constitutional nonarch. T'he
same ;ticle sIrc described the Xinsdom of Polard as inseparable from
the throne of Russia, and in th€ official title of the Emperor of RBsia
th€ formula 'Kins of Poland' (?so.' Po,slii) wss preserved urtil the
end of the Empir; in 191?-a! empty menory of the situation that had
exist€d fron 1815 t 1832, when the Empe.or of Russia ws at the saIne
time the constitutioral Kinq ofPolard.'
No doubt this is enough to show thet constitutionalism Beed not
be democratic. That is not of the essence of the t€im. Rather it em_
phasizes the desirability of reshaints on goverDmental poweN by es'
tablished and regulsr basic rules and inBtitutional procedures. This
was the way in which it was experienced by the Czare themselves.
Marquis de Custine repolts how Czar Nicholas I, in 1839, Eacted to
the role vrhich had been bestowed upon him when the Final Act of
the Vienna Congress 1815 tied Poland to Russia "par le lien d'une
constitution propre."
Je ne serai plus roi @nstitutionnet. J'ai trop besoin de dne ce que je
pense poul consentir jamais e r6sner sur aucu p€uple par la iuse €t
par l'intrigue.'3
It is this French term "constitution" ("constitutionneL"l $lhich is
important here. It must be recalled how much Czar Alexander is the
man behind the language of the Polish Constitution. "SoD
t€rte . . . d6pendeit de la volont6 d'AlelandE lui-m6me. R6dig6e par
2?. S@ftel, "The
stituiionst Reform of
Geroid
fom
190
Tuquary, I4ider
ot Gove.nn€nt of t)€ Russi@ Ebpire Prior to th€ Con_
6," in Esart in Rusis dd Sovi€t Hisiorv in Honor of
1963. p. 105.
28. de ausiine, L€ttes de BBie (Int oduction pa. Henri MNis), Paris (Plon)
1946, p. l?1. I h,re here reli€d upon the onsinal Fren(h veBion, due to the iDporlsnce
in , hp oorter of l-he French l suore However, .}icre elisls a transla.ion ,trio Englis).
* Custine, Joumey for ou tihe, edited @d translstid by Phvllis Penn Kohler ihe
pasage the.e reads "I witl never again be a.oDstitutional LinC I have i@ nuch need
to say ehat I think eve. to coMnt to leign over my Deople by .@ Md intrigu€ "
16
HaEcEnsrRoEM
^ND
FrNr-^NDt STRUGGLa Foi Law
Czanory,ski et modifi6e par le tsol qui
lui donna un caractare plus
autoBatique,la constitution fut solennellement prcclam6e d VaBovie
au mots de novembre 1815."4 At the Congress of Vienna which creat€d the Polish Comtitution "Alexander suEounded himsef with
MinfuteB who wele alEost etrtirely non-Russian. . . . The Tsar himself exercised complete contlol, and cho€e the instruments of his policy as the situation of the moment dictat€d."s And AlexaDder's
language was French, not Russran.
A fe$ yeals before, Alerander, in a similar way but relying on the
se ices of Speransky, created the constitutional regime of the Gmnd
Duchy of Fintand. ?he following account of \i/hat took place will convey the role of Czar Alexander and his French language, when on
March 29, 1809, in the little city of Borg, (in Finnish, Poruoo), homage was rendered to th€ new Glard Duke and on both eides tlrc solemn oath was tslen which \ras thereafter to bind the fate of Finlard
to that of Russia.
Standins on the st€ps t the throne with Alelard€r I hinrrlf tisteniDs, Mr Sprenstporten .ow iead the Regent's Oath which
Alerander want€d to give to the people of Finland in orde. to fortify his
sliance with
it.31
The new Charcenor of Justice of Finlard ro6e after the speeches of
gatitude snd the sernon of the R€v. Alopaeus he alted th€ four EEtat€3 to make the oath.-"Come forth aDd n.le your oath to the
Enperor," he caled out" and the oath wa! Dade in Swedish by the
Spealers of th€ four Estat€s. It is not€i/orthy thai the R€C€nt's Oath
thu! pleceded the oath of the Estat€., somethins that cont€mporarie8
found to be a sood onen.
I'lrcieafter, the Empercr hinser made a speech in ftench t€iking
about the emotions that the "voluntary honase" which the Finnilh
people had reDdered hin, had cru!€d in him. Their volurt{ n€€s Dade
their oath of al€siance b€come "more preciou for My heart, bor€ iD
accord with My p nciples." Tulning his eyes towards the altsr he
added in a voi.€ filed of emotion those wor& that since have often
been repeated: "Sine I have promised then to maintain their Religion
and Constitutions, I have want€d t show the value which I s€t on sinc€re etpressioDs of love ard corfidence. I ask the AlEishty God to sive
me force to govern this lespectable people accoding to itu laws snd th€
order ofthe et rnal justice."d
The instlument which Czar Alerander thus confirmed 6nd which
beals the dat€ of March 27, 18m, reads ss follows in the F nch
29. Aletsder Gier*ztor et al ii, Hi.toirc de Poloene, Weam l9?2, p, 465.
30. C. K. Web6te., Th. Cors!@ ofvi@ 1814-1815, LDdon 1934, p. 5€.
31. Arb! SodqhjslE, Fi.lrnd' er., skyldiBhet eh vilja, Stelhold 1M), p. 17.
32. AlEa Snde.bj.h, riddd! n!a, styldishet och vilj., StoctholE 19.(), p. 1& ft
@y b€ added that C@ Alolrnder'! sp*ch, clGins ths Dieq of J'iy 18, 1609, al& w6
delivered
i. Fftrch, *e
.e.
mrL
p. 23.
Ch.
IllLookin| for
dn
Etplanation
17
Act€ de garantie de Sa Maj€st6 Imperiab a bus les habitantr de la
rinhnde.
--'
r""i ,cl.',"a." t'. UmDereur er Auto(ral" de rouies les Russies
c*.i-ni," a" Finlande, er;., etc, tairons savoir la volonrP du Tris'
de
H,ut
Nous: Avant
ii"ma". n","
lail entrer en
possession
du Crand-Ducb6
par les p.isenles mnfirmer et sanclionner
'""1u
dLr pap ainsi que les droih et pri
i,iari"io. to to;. tonaaointales
vilesd dont chaque Ordre en parliculier. dans ledit Grand-Du(he et
buJses habitanr.s en e6naral l.anl grands que petits onl ,our JBqu a
en vertu deg Conslitulions Nous promelLons de maintenir tous
".esent
les avant ases e r lois en pleine visuPur sans al iirarion ou chanse ment
quoi Nous avons sieni le prisenr acte de suanlie de
Not.e propre
*
''-
It
E;i;ia"
"'"*
main.
_Alerandrel,
may be added that this use of language was relealed
:'hel thi
..nuin"" uf V;bore *a" reunited with the Crand Duchv bv lhe Czar's
ii4anifesto ofDecember 11, l8l l (the province had been los! to Russia
in the Peace of Nystad, 1?21, and later peace treaties) Ir the Odinance that was iss;ed by the Czar on January 12, 1812, he made again
reference to the "Constitution" of Finland, and indeed he is reported
to have shuck out himselJ the sentence that the Gmnd Duchy had
been incorporated into Russia.
Today it is usual to call Montesquieu a constitutionalist Con_
stitution;[sm is then identified with a tvpe of political theory that
procedeals with the question of which institutional shuctures and
dures are necessary if certain values such as libe y, legal equality,
anil other rights of man and the citizen are to be achieved Because
.onstitution;l theorist.s seek such idesl ends they must discover what
characte stics of legal and governmental institutions will best pro_
33. ThG F.ench
ieit
is tsLen
fion
,._J. Cdspe, La risistsce l6gal€ €n I'inland€,
It appes thdi th€ original d@hent w4 ldt i, the lire that oveF
ber*"tr
;;;i,h";ii;.f Ab" ri;4, in Finnishr ln r82?, see A.G. Mdour.hssFinldd
frused on $e
Wi"l. e.i.."..." 1956, p. ll. Muchof rhedis'Bion
i*i
Paris i913, pp. 9?
t
".a
sweai"t
*t i"t *as put up in the chuch6 of Finland on disDlav durins the p€
"ereion
ii"a burvtrich it*lfctains Lo be no morc rhan a rrdslalion. Lsler' a Russia veEion
h,s i.en relied uDon tor inkrDErrrion Nirb), in his @mpiktion of dNnenll' uses
lmS*dish lexr Erhe bNisothBtraml,lio,s Both Lhcorder
t.Ll',1,"nuoi""
lr'"
ot tt Oiet ol Borse and Al€:dder's concludins speech beint in
"
naL6 Iis treslrrions fiom the French onsinals' See:
L."evet, ri.Uv here
ircncr,. "-,."'tlon
lioS re2o. From AurunoEv Lo lndep.ndence' A seledion ot
D;cmenl3. Ed ited and lrMsLsted b) D.C Knbv. lnndon r Ma.millan) 9?5 pp' l4 tt
-a
iii"i*d *a n*"i"
ProfNi HunuT' Kl'riin hk boot:The
.r.i,i"' r..- r-u" a*usio" *l;ut bvpenod
or rhe AulonoDv t80! l9l7 (Helsinli
r_innish Leeal s(iene in the
czdAleltrde.s lususse ws FrPn.h qmto have be'n
rs'6ii.;; iii.. ih" r";,
_lhe
on lhe om
'!
l..,,ri#
'h,' us ti&r
dissPrLslion or Keuo I(orhonen
Klami intorDs
'
",eaoriied.
;iti€€ of ihe Fimisl' Matte.s (in Finnish, 1963) ws the fiBt Finnish studv *Nch en_
a",,.,i"a L.,"r",rt"r Lt" Uesinnins ofthe penod of fintrish Aulonom' ih the liShl of
i"i.li n*"i," siuce rs-itr o;o JElas b@lt on the'rundamenbl laws ot
Finh;d
(1969,
Ru$iu$urcesareoveFemphsized. ."
rsre p.?0note 1l'
f8
H^EcDnsTBoau
^ND
FINIaND'S SrRUccIl roR Law
mote lh€m. By atl.empting to make erplicit such characterfutics and
principles, Montesquieu opened the way to deliberate constluction of
constitutions. At a time \dhen government lacked much of tlle moral
and shuctuml underpinnings of the positivist state later to emerge
and when law was rarely defined as an instrument of state policy but
all the more often as a bulwark against cenhalized authodty, this
meant taking an enormous step. Legal change becoming regular and
systematic, which wss inconceivable iD the early eighteenth century,
came within reach due to Montesquieu.
Certainly, when Haege$ttoem addrcssed the issue of constitu_
tionrlism not much work was done to elucidate these mattels. Therc
is still much work to be done. The wold "law" needs to be defined
and so does the term "fundamental law." Possibly it is an error to
trcat "constitutional lew" and "fundamental law" as il they $ere syn_
onymous. Sometimes they may have been, but not often. Constitu_
tional law was not immutable, while fundamental law was.
When the American and French revolutions occurred,
Montesquieu's theories rec€ived the close attention of those engaged
in debating the details of the new constitutions being drawn up in
North America and Europe. This was his basic significance. Consequently, it matters little that the very term "constitutional" may
have been largely unknown in the 18th century except among the
B tish. Montesquieu thought of himsetf as a prcponent of "mod_
erate," "tempered," or "limited" govemment, not a "constitutional"
one.ln L'Esprit des Lois, his principal classification is the distinction
between despotic government, on the one side, and moderate, or
limit€d govemment, on the other.
Most of the French-inspired discussion seems to have been lost on
the Swedes of the 18th century. The pattems relied upon when the
Form of Government of 1772 was drafted s,ere of domestic origin
About the Form of Govemment of 1809 which was to replace, in
Sweden proper, the Gustavian instrument of 1772 (the latter being
the one which Czar Alexander promised to maintain "en plein vigueur sans alt6ration ou changement") it has been said that it was
more a qualified statute fo! how to govern the country t}lan a con_
stitution proper.e Certainty, it was alien to the founding fatherc of
1809 to enter into the Form of Goeernment anlthing that was intended to safeguard the position of the citizen in society elcept indirectly. Constitutionalism as a theory for how to maximize the
liberty and the rights of the citizenry had a very weak foothold in
Sweden and matters have remained so up til the present day.
34. GustatPetr€n, "Vdsen till en Evensk
dv Halva.
C.f- Sundberg, Stockholm
r
1978, p. 19.
iishetekaialog," in Sk.ifte. till minnet
Ch. IllLoohinE
lot at
EtPlanotion
19
In th*e da]s of the mutilatioD of the Swedish realm, the essence
as a restraint on power was rather more to be
of
Oliver
"*.titutb""fi"i"".J i. ifr" medieval idea of the sanctity of law asas such
a
"brooding
law
conceived
about
i"oa"tiffot-""' fr.o* dictum
i. ,ft" .W" corresponded well to this idea Tbe law was
"-r1.."*.*
remained somehow above lhe Coveromenl of l'he
;;;il;rJ
along this
S'*"iiJ ,"rf-. tft*" ,re a number of famous utterances
xl and
Charles
rulers
absolul'e
roost
r,."-li'irr"*rli .i S-eden's
Charles
KiDg
1705'
e
in
Potand
in
s
if'r.r"""iii.'ft m" f'*dquarters
The
princes
p;tei
whipped'
of
his
one
had
had
iii** i"ra tr,rt cr*
be a peasanl'
rarher
would
he
'lhat
reporled,
ir
*"s
iiir" if,", "";a, "o
if'" s*"ai* Laq, lhan a King in Poland the Queen's man
",'ii.-i"
"*
in
or a noble or prince in Russia
' insland.
?.'*"o""otlr. tt""eerstroem csnnot have had bul a mo6l slippery
r"ntlota ii ll" ai."*"ion of constitulionalism offered bv the lawvers
i" S""J". ,i"r* * lhe time when he addressed these questions lt
remains to coniider what Finland had to offer him
.'TJrul
s*"a"" mav perhaps be inclioed !o doubt the influence
,roon-iJedi.h rhinkin! or what look place in Finland Some in
their forii"a"n p-p"t, in ,r," rsth cenlurv. no doubt Iooked uponunder
lhe
in Finland as poo' souls sufferins
;;;";;;t;."t
a
speedy
than
,r'*o,'-t^ oiift" C-r'. Cossacks anJ wishing no betler
r"tirm to the Swedish Crown. BuL lhis was a very narro$'mrnded
.i"*.-i" ir"t, tfti"g" Sr"dish were brought to an intense blmsoming
i"-tft" ci"".i or.,irv fhssed witfi the particuls'r benevolence of the
great master_
Czars. 19th century Finland was the place in which the
Not only in
published
oi""es ot Swea;"n tircrature were authored and
were
recited
home
i',"r.*t"*-t f'"-" tuL in almo* every Swedish
ocThe
ofTopelius
it'" iut.iotl" ooe." of Runeberg and the stories
were
understoodpurelv
Firnish
i"r"."n"" io tfem to tliings
"*iirui
tlrn if they had referled to some other province of
in oo oit
". ""o."
as Dalecatlia or Wermland Since the Swedish legal B)'sSweden such
Czar
;;1;d t"". rctained almost uncharged as had ofpromised
1fth
centhe
halJ
Alexander, Finland came to be during the letter
perilegal
Swedish
iu* tt" ot""" in which the firsl and foremost
odi""ri *r" prtfi.f,"a' Juridisha lbreninecns i Finlond tid$krift
t.'i""i"" i, 1865. lt was more than 50 yeaft unlil a publicalion ot
Czars were
** undertaken in Sweden proper' The past
iiE
"t"tauta
of the
"r."
Swedish
the
when
i'J"ea
'C*.? bottr .e"pectf"t snd generous
of
wluch
the
shadow
in
i" issue. ihe big fortless
or"rrv
tl"
35.
"it.
iif"i"cf.*
tgelsinAt in Finnish) glew up, was left to keep
(r9r5)'
Kel XII i UkraiM. En k otils bereti€be Publkhed bv C tlaUendo l
"liv
.f
HaEcERsTRoEM AND ftNLAND's
STtuccLE roR L{w
its old Swedigh name "Sv€aborg," in spite of the reminder it brought
that this fortless wes conceived by its creat rs as doing for the
Swedish realm to the east q/hat "Gdt€borg" (Gothenbury) was doing
for the realm to the west. The present name, Suomentinna (whtch
means in Finnish 'the foiress of Finland') was not affixed by the
Czars, but by the pure-Finns, after 191?. Swedish nobility and
Swedish merchants found great opportunities in the Russia of the
Czars, geater than Sweden proper could even hope to offer them.
Certainly, young men of noble descent could male beautiful military
careers in Russia, and even commoners in militffy service could be
nobilized for bravery and skill. Finland's new House of Nobility saw
many new names inhoduced after tloops from Finland having been
used in 1831 to quell the Polish uprising. One of the aborted of-
in the Russo'Japanese War (aiming at Sandepu) was commanded by General Oskar Gripenberg, a Swede from Finland in
Russien service.s Admiral Furuhjelm, of similar o gin, had promoted
his career bv sewing in high fimctions in Ru$ian Alaska. Those who
lost the Czar's favour (lik€ Westermsrck) could turn to Sweden proper. Such was the case of the discoverer of th€ North East Passage,
Baron E.A. Nordenskidld, who made his great voyage under the col'
ours of the Royal Swedish Sailing Society (K.S.S.S.). Similarly it was
with Professor Johan Jacob Nordsh6m who left his Chair at the Univenity of H€Isingfors to become Chief Keeper of ttre Records of the
Realm of Sweden. The merchants in the until the tum of the centuy
mainly Swedish'speaking cities made equally good use of the Russian
opportunities, sometimes to the extent of awakening Russian
fensives
jealousies.
This suggests that there were all the time echoes from Finland
running through Swedish thinking. One need not put it more shongly
than thet. But in fields in which there was little or no debate in
Sweden proper but a curent one in I'inland, the echoes must have
been strorlger. Constitutionalism was such a field. This by itself must
have been enough to make Haegersboem attentive to the scholarly
debate in Finland.
Recent scholarship in Finland has devoted much attention to
what was conveyed by the laDguage used in the instruments created
for the Diet of Borga of 1809. Most of it is in the Finnish language but
it is reflected in the discussion which Professor Hannu T. Klami devotes to the Diet in his English'language book 7i e LegoLists.3l lt is to
36. The
hatt€r is treated in Siig Jiserski6ld, Den unse Mannerhein,
H€lsiryfore 1964 (the fi6t volume in Jiigeft*'nld's se.i4 cove.ing the life of fieu
Marshal Custlf M&ne.heim), pp. 275 fl
37. Eannu Tapmi l(lmi, The Leg3lists. r,nnish Iagal Science in the Period of
Autonohy 18{+1917- Helsibki 1981 lsociete S.ieniid@ Fe.,ica), pp. 71 ft
Ch.
lLookins lot an
ErPldfution
2r
to lhe
interplay
the
concerning
States
lhe
United
one;arried out in
be reretted. however, that lhis discussion was never ioined
between the statement of abstract, natual Iaw principles and con'
stitutional dogmas of the English type. The reader may find it p'ofessay "The
it"ft" n"." refer to Profegsor John Phillip Reid's
s The American
recently
Declaration,"
Published
Irrelevance of the
ti
di""u."ion fo"o""" on the opposition between the tr&ppings of
Eurooean absolutism which were being shiftf,d from lhe King Lo
Perliament. and l,he left-overs of Germanic ideas of rights and fre€_
doms belonging to those who had customa ly poseessed them ftom
ti-"
e EngliBh might csll t}re latter "constitutioDal"
by hlstory and guar&nteed by tbe common law'
ioned
sancl
DrinciDles.
'Be
Finland certainly emerges as a
turn_of_the_century
it
that
im-"rio.iaf. 'n
""fo. -uy,
pttilosoptters regarding discovery. articulation atrd evaleola;in"
'""iio" of
when sharpening tleir judgments how law could
se
principdl instument in the bettement of mankind's conthe"o.-"
C".t inly titi" *r" not hidden to Haegerstro€m even if he onlv
e as
diii*.
saw a shadow of srhat was going on.
Much to everybody'J surprise, the Law handed down frcm
Swedish times emerged triumphant from the filst contest with the
Czar. Bobrikov was shot by a young, lone pat ot, Eugen Schaumarn'
atanal the Russo-Japanese War divert€d attention floE further
Lmols at Russifvine Finland. Then' following lhe defeal in the war'
the bzar, on November 4. 1905. issued the Manifesto oD Measures to
In
Ue faten fo. ttre Re"urrection of the Legal Order in the Country's
triumDhant reDoft accompanying these eveDts lhe rneanirE of a "Con_
stitutional Stal,e'was spelled out by a Delegalion of the Diel's Spe_
cial Complaints Committee in itB Draft Report on Resurrecting
Unchanged tlle General Procurator's Office in the Impe al S€nate
for Finlind. In a pass&ge focusing on the conditions which mwt be
satisrred if Iaws ar; to b; held valid, the following language is used:
For the €xercise ofa lesal power' which will include the risht to les'
in a Constitutioml Stat', that should
tr"t". rii" g""i""t
a
"rt",;lid himlell xnake command in mattrB{s
"
it *.lUonar.h
be crealed bv
tbe Law gives hib no such power. no IaP
lo;hic'h """"'U"
'3n
,"'Uar.
c"..*a i"a ""nsequenuv iar arise no correpondins dutv
"
force.
with bindins
and de'
ii."" .'-.rtrutrur ion ,na Ue consequent' publicaliotr oflam
crees nol onlv Jeans the making publiclv kDow' of wh'l was l8w
alreadv befori tlal. but, as a bstter ol fact ir mearu an acl bv the
J""t
p.".r"Lg"ii'g ,rtt
a8. See
las
"'i.v
fv which the
in the American Revolution
O"*
v-t
39. rFS 1905 No-,lll.
uni!
the Bevolution in the
La{
A Collec
Hhtorv' F'diled bv H€ndrik H8tos Ne*
Pr€s;) 1981, pp. 46 ff in pldcular pp 80 If
U-? AJi* e"*v" * eneicd lrgsl
ii'ttJ u.a-
ud
ne$' lam and decrees pas*d are
22
H^EcERsrRoEM
FTNLAND'8 STRUGGLE FoR
L^w
^ND
being made known and oder€d to be complied with, as havins been
made in the proper war and since the promukation in this way G to be
considered as a declaration, bindins upon that ve.y [pronulsatins]
body, that for such reason such laws and d€gees arc to be mnsidered
Law and to be obeyed by all concerned, it foltows that rhe Members of
the Senate ousht to have found thenselves bound by their official dury
so that they were unable to nake such a declaration in resard ro such
laws passed by the Monarch relatins to which laws it was certain rhat
they had been made in violation of the fundanental law.a
The forcefulness of the language here used should be seen against
its background among the lawyers who mostly were of Swedish descent. The emotions breathe through Annie Furuhjelm's potrait of
the time:
sreat sac.ifices had been nade, uncomplaininsly. Offices and incomes
had been sacrificed as somethins ser,evident.It was durins rhese years
that the Swedish class of civil seNants lost their positions, and solidarized thenselves, without any hope of recuperatins them, with the
hishest values of the nation.al
By glorifying the legal principle for which so many of the judges
and civil servants had been dismissed or exiled, the language was
simply approp ate to the situation.r, In independent post-191?
Finland, "an inlringement of the Constitution was regarded almost as
a sin against the Holy Ghost" wrote Professor P. Kasta in a lighter
vein.r' But the reason why it was so regarded Iies in the same very
It is difficult to imagine that such dramatic events in Finland
(which indeed he was used to observe for the benefit of his grandmother if nobody else) woutd have failed to impress Haegerstoem
whatever his M&xist inclinations and made a corresponding imp nt upon his idea of what wa! meant by the .,constitutional state.,,
Consequently, it is in ['inland, of 1905, that one finds rcduced to
w ting what coresponds most closely to the mystieal ,.constitutional
Btate" upon which Haegerstroem later was to rely, and 19Ob belongs
to the formative years in the development of the philosopher,s leg;l
thinking.
40. 1905 Ars proturatobb€ti.tande.
4r, AMi€ Fuuhjelm, Den stigande oron, HelsingfoB 1935,p.264_
42. DoM ro 1905. som. 300 peBons h.d been d ism issd, a ;onsderabte btuq ror a
people al thar rime counrins no more thM J miuioB. See Bernh Esdand€r Eh,
Arlionden u. FinlaDds histo.ia 1898-1908, t{elsinglo.s 192A, p. tgo_
43, Paavo Ketsri, "The Consriiurionat Prot dion oI Fundm€ntal Rights in
Finland," 34 Tul. L. Rev.695. ar 704.
Ch. II/LookiLs
3.
lot an Elpldnation
DESPOTISM
"Where pure despotism . . . exists, one may question whether there
reallv is anv leeal order, ' wrole Haegerstroem.
tiu"g"..,ro", has been called a'legal nihilis(" Indeed, he who
savs thai the world is nothing, does not convey much idea of what the
world is and how its parts may relate to each other' Consequently,
when the great nihilsfsays that something is not a legal order, by implication ie savs lhat some other ihings sre a legal order' Thus' the
negative gel's lo be impoftant. because it throws some lighl on the
positive! Simmonds observes that Haegersto€m "offerc us no neat
and tidy defrnitions of lew, no sructural analyses of legal systems "{a
AII the more exciting it is to find that after atl he has et least offercd
us the nesalive. So what did he mean bv despolism ' indeed'pure
desootism:? Of course, as usual, lhese basic concepts are left unex_
ptained. Their meaning musl be galhered from his contexl'
In polilical discourse, lhe concept ofdespotism has become signit_
icant with Montesquieu. With him, indeed, it came largelv to
supplant the concepiof'tymnny' as the t€rm most oft€n used to desienat" a syst"m ;f total domination, ss distinguished from the
eiceptionJ abuse by an individual ruler. Montesquieu made despo
tisrrone of the cenhal issues in 18th century political thought' The
Dositive sides of Montesquieu's contribulions can hardly be unierstood without relerence ro lhe characterislics of despotism'
Indeed, despotism may be his great€st innovation in the classification
of govemment.
"Montesquieu's
concept of despotism remarned remarkably con'
stant betwe;n his w ting of the Persian Letters and The Spirit of the
Laws. Despotism was for him not simply a structure of state power
pro
and offices but a system with a characteristic social organization
was
Letteru
in
the
Pe$ian
the
seraglio
pelled by fearl His analysis of
s)Btem
based
of
a
psychological
treatment
iris singG most sustained
upon faar, iealousy, and mulual suspicion. Here he created an image
oi despoti"m allogether novel in ils detail. ils compelling accounL of
the human passions that sustain it, and above aII, its rcpresentation
as a system of power. Despotism is the rule of a single person subject
to no restaint, constitutionel or moral. Unlike legitimate rulers, he
must depend upon fear, the pdnciple of th€ system.
of despotism originat€d with the Greeks who used
The
"oncepl
the model of the msster_slave relationship to desc be oriental rule of
a sort unknown to the Greek city states menaced by the prospect of
a4. Simnonds. Juridical R€view 19?6,p.223.
H^EcERsaRoEM
FTNLAND'S
^ND
SrRUccI-i Foa Law
the Persian Achaemenid Empire. But Mont€squieu took into account
vi ually every development of the concept of despotism, ftom this
formulation in Grcece and its identification with slavery, to its more
recent forms es a svstem of government, The first French translation
of The Aiabian Nights had appeared in 1704 and been an immediate
success. Harun al Rashid, the oriental despot touring Baghdad in the
company of his executioner, naturally lent many features to
Montesquieu in depicting the system. His inventory included Persia,
Turkey, China and Russia. His use of the concept depends to a con_
siderable extent upon empirical asse ions about the natuE and p D_
ciple of despotism as lound in the Orient.
Montesquieu's definition of despotism is such to leave little place
for laws. It can tolerate no laws that limit the cap ce ofthe despot. It
resembles the position ascribed to the pharaohs of EglTt to eiplain
whv in that country no w tten law fiom their period has yet been
found: "apparently because the pharaoh, as a living god on earth,
needed no law other than his own spoken uttemnce."r5 "He the
pharaoh, as a god, luos the state. . . . The authority of codified law
would have competed with the personal authority of the phsraoh."a
But Montesquieu's position is not like the one adoptad by Thomas
Aquinas relating to tlranny which Thomas calls a tegime "so corrupt
that it affords no law."a? Montesquieu developed the idea of despo_
tism and law as follows:
The pnnciple of despotic sovement is fear. A timid isnorant,
nmy laws.a
Under despotisD, th€ law is nothins more than the ii ill of the ruler.
Even if the deBpot were $,ise, how codd a magisbat€ follow a will unknown to him? He has no choice but to follow his own.
Nor is that all. SiDc€ the law is nothins more than what the Nler
wills, since he cm wil only what he tnowq theie must be an infinita
number of peopl€ who p€rform acts of wil for hin just the way he hixncowed p€ople does not ne€d
Finslly, since the law is nothins more tlan what the ruler wishes at
any given moment, those who perforn acts of will for hin must be as
he
himselto
Under despotisn, everyone ought to be cont€nt to be povided with
t be auowed to so on livins. Thus it is little more ofa
bu.d€n t be a slave than to be a subject.s
subsistence and
p-9.
45. Derk Bodde & Cleence Morie, Law in lmperial Chind. HNard U.P. 1967,
,16. John
49 50.
4?.
48,
,t9.
50.
A. Wilson, The Burden of Egypi, Univesity of Chieso P.ees, 1951, p.
Thonas Aquins, Summa thelogicd, Pan 142ae,Q.95,!th.
The Spiritoftbe L!ws,5.14.
The Spirit of Lam, 5.16
The Spiiitofthe Law,15,1
Ch. Il/Loohins fot an
E,planation
25
The lot of nan, like that of bea6ts, becomes nothing but ifttinct,
oMi€nce, and punislment.5'
Looking at thes€ quotations from Montesquieu, however, one may
well wonder whethe! these really would have satisfied HaegeEtroem
Haegentoem also delivered a major attack on the 'will_theory' by
which he seems to have meant all theodes portray legal norms as the
meaning-content of certain humsn acts of s/ill, or commands.s' But
his argiuments against the will-theoly fall flat when faced with the
despotic ruler depicted by Montesquieu: "the lav.' is nothing more
tha; what the ruler wills" or that "the law is nothing more than
what the ruler wishes at any given moment." "I read it with pleasure"
("Prochtll s udovol'stviem") was the little note the Czar used to
scribble on documents submitt€d for his approval, therebv tuming
them into 1aw.i3 Haegentroem's arguments against the will_theory
gain force filst when given basis in a 'constitutional stat€' which en_
joys a developed system of sources_oflaw.
It thereforc seems reasonable to look also elsewhere than in the
political theories dominated by Mont€squieu for some light on what
Haegerstroem may have meant by his term 'pule despotism' that was
no legal order-
4,
ASIATIC DESPOTISM
There are reasons to believe that the main inspiration iD
Haegershoem's view of the legal order negated stems more from its
'Asi;tic' colouring than ftom its ties with Montesquieu and the will-
theory. One element conducive to such thinking lay at his very door_
steps, the other was prevalent in thet Finland which he was used to
the acting professor HeegeEtroem (as then he
In
1904,
51.
52.
53.
54.
The Spirit of the
was)
moved into a new field which at that time had come to athact a great
deal of interest, viz. socialisE. Whether socialism was right or wrong
was not his concern, however. His idea was "to investigate s'hat kind
of ideas that were moving about in modem socialism, to take a look,
as it were. into the saucepan, deep in the very nature of the human
bei.g, whe.e the cooking of the socialist food took place."e
In Ap l 1906, the Russian Social Democratic party held its fourth
171.
[aw, 3.10
cf SiEEords. Juridical &€view of 1976, p. 226
cfAuich, The Rusie Anehbt, (Norton & Co.) New York 1978, p.50
.on fa tind€' Siockholm 1961, p.
Margit Walle., HaseBh6n
himistd
HaEcEBmoEr,
^ND
tr\NL^ND's STnuccrE roR
L^w
congress. The sessions took place in Folkets Hus, at BeEnhusgat€n
in
Stockholm. The Swedish Social Democrats had helped their Russian
comrades by finding the locality and collecting the mon€y to pay for
the congress. Lenin auived iD Stoc[holm ftom FiDland wheie he had
been in hiding in order to avoid the Czarist police His wife, Nadezjda
Krupskaja, ar ved somewhat later. She was also a delegate at this
congrcss. Orle of the marn issues before the congess tumed out to be
Rwsia's Asiatic heritage and the possibility of b nging about "the
restauation of the semi-Asiatic order." I will here limit myself to reproducing KarI Wittfogel's account of what took place in this respect
at t}le congress.
Encourased by the e&eri€nces of 1905, Lenin believed that th€
Social Demooatic party wotnd b€ able to 3€ize power if it could rallv
b€hind it Russia's snall working class and tlE numerically strons peasanhy. To win th€ support of the latbr, he sussest€d that the nationalization of the land be nade prrt of the revolutionary program.
Plekhmov branded the idea of a smialist seizure of power as premature
dd the plan to nationatize the land a! poteDtially reactionary. Such a
policy, inst€ad of discontinuins the attachment of the tard and its
tilers to the stat€, would leave'utouched this suNival ofe old seniAsiatic order' and thus facilitste iis restoration . . .
Plelhanov, in developins this them€, adhered to MaB'ard Ensels'
idea that under Mongol rule Russia became seni'Asiatic ard that despite important EodificatioDs it rcmained so ev€n alter the Emanci-
The sisnilicaDc€ of Plekhanov's arsumenis elplains why LeDi.
kept .ev€rtins to them at the Stockholm Consr€ss, in a subsequent
Letter to ti.r' PetersbutE Worteru, in a I€nsthy pamphl€t on the Party's
aerariar prosraD, pubtished in 1907, Dd in a disest of this pahpblet
fo. a Poli€h Socialist paper. Mmif$tly, his .evolutionary perspective
was beins chalens€d by the very Asiatic inte.pretation of Ru$ian so.ietv'But
that mtil then had teen for him a Maixist ariom.
although Lenin was sreatly disturbed by this fact, he could not,
in the then climatf of Russian Mariism, abandon t}le Asiatic concept. . . . But Lenin was d€temined to t k€ th€ Great Gambl€. Ard it
wa! for this reason that durins and immediat€ly after the Stockholm
Consless, he ninimized an obscued RBsia's Asiatic heritage. . . . Fron
Stockholm on, Lenin inc.easinsly avoided the 'Asiatic' nomen
would be strange indeed, if Haegelshoem, at that time having
embarked upon the great proj€ct focusing on Marxism that was to
lead to the publication in 1909 of htu book ot Social TeLeology in
Marrism, would not have taken a keen interest in the happenings in
Stockholm. This must have focused his attention on the Asiatic inter-
It
55. Wittfosel, Orientul DspotiM, (Yale Univ. Pres 1957) p. 392.
56. Wiitfogel, Oriental Depotisn- (Yale Univ. Press 195?) p.4341
Ch.II/LookinE lot an
Erplanotion
2'1
pretation of Russian society with which he must have been familiar
also by his very studies of Marx's own works.
Since 'the Asiatic mode of production' later w&s dropped from the
official Socialist message, it may perhaps be called for to set out herc,
briefly, the essence of this extra stage in the Marist view of the pre_
determined stages of societal evolution.
The idee of the particulaistic nature of Asiatic society aheady
preBent in Aristotle, was-as has already been touched upon
developed in political terms by Montesquieu' and in politicoeconomic terms by the Phlsiocrats and the B tish political econo_
mists. Marx's concept of Asiatic society was built largely on the views
of such classical economists as Richard Jones and JohD Stuart MilI,
who in their turn had developed generalized ideas held bv Adam
Smith and James Mill. ln 1848 John Stuart Mill, drawing upon the
earlier economists, had hammercd out a new concept of Oriental so_
ciety. In the 1850's th€ notion of a specific Asiatic society seems to
hsve struck Marx with the force of a discovery. Seeking to predict the
future of societal development by determining its past, he added to
his arsenal the idea of a specific Asiatic mode of production. His writings during this period-among others, the firsl &aft of Das KapitaL
which he set down in 185?-58-show him greatlv stimulated by the
Asistic concept. In his firct draft as well as in the final version of hi8
magnum opus, he syst€matically compated certsin institutional fea_
turas in the three major types of agrarian society ('Asia', classical an_
tiquity, feudatism) and in modem industrial societv. Indeed, he
emerged as a vigorous adhercnt of the 'Asiatic' concept and ftom 1853
and until his death he upheld the Asiatic concept together with the
Asiatic nomenclatuE ofthe earlier economists.In addition to the for
mula'O ental Despotism', he employed for the whole institutioml
order the designation'O ental Society'used by John Stua Mill,
and also (and with apparent preference) the designation 'Asiatic Society' used by Richard Jones. Marx expre$ed his specific concern for
the economic aspects of Asiatic society by speaking of an 'Asiatic system' of landownership, a specific 'Asiatic mode of production', and,
more precisely 'ABiatic production'. MaIx speaks about the 'geneml
slavery ofthe Orient'. According to him, this type of slaverv, which is
in man's attachment to the hydraulic commonwealth and state, dif_
fers esBentially from Westem slavery and s€rfdom. Again, I will here
quote Wittfogel.
To the best of ny krowledse, Ru$ia was firct called a 'seni'
Asiatic' country in an article sip€d by Ma[, but written bv Enseb,
which appeared in th€ New York Dailv Tribun€ on April 18,
1353. . . . Fiom the stst the t€rh 'semi-Asiatic', as applied bv Mar
and Ensels to Russia, referred not to that countrv's geos.aphic location
H^rcERsrRoEM
28
^ND
FhrL^ND's STRUGGLE roR
L^s
but to ik "traditions and institutions, charscter and conditions."5?
The youns Lenin joined the Social Democratic mov€m€nt in 1893.
Aft€r a zealous study of Mdx' and Ensels'w tinss he acc€pt€d, in
1894, th€ 'Asiatic mode of production' as one of the four major antagonistic econonic confisEations of society. In his filst inportant
book, The Development of Capitalism in Ru!€ia, published in 1899, he
besan to desisnat€ his country's Asiatic conditions 6 the Aziatchina,
th€ 'Asiatic system'.s
What brought the lawyers of FinlaDd undentanding in the West
dudng the crucial yeals of the legal struggle was not constitution_
alism so much as the theme of Russia as a barbsric despotism. "What
really moved them"-wrote Westermarck-"was that a peaceful
little nation with a Westem socisl structure and a comparatively advanced civilization should be swallowed up by a half-barbaric despotism."s'g Bob kov himself, unofficially but with preference, was
refered to as the "Asiatic Despot."e Reacting to Russian measures of
repression, newspapers in f inland liked to speak of'Asiatic arbitreriness' or 'true Russian arbitrariness with its Asiatic notions and
methods'.
Certainly, in private discussion the better-read in Finland were
fully prepared to accept mo6t of the characterizations of the Russian
regime made by Marquis de Custine in his famous lett€E from Russia
of 1835.
Le souvemem€nt rEse est une monarchi€ absolue, t€mp6r6e par
Le gouvernement russe.
l'ordre de Is citi, c'esr
.
l6tat
,
esl ta discipline du camp subsuiru6
de siese devenu I 6ral normsl de ls so
Cet Empire, tout inm€ns€, D'est qu'un prison dont l'Enpereur
de Custine calls the Russian society "ce compos6 monst.ueux des
minuties de Byzance et de Ia ferocit6 de la horde."6{
Wittfogel develops the same theme in the following way:
Tatar rule alone mong the three major O ental influences affectins Russia was decisive both in desEoyins the non-O.iental Ki€vm
society and in layins the foundations for the despotic state of
Muscovite snd post-Muscovitr Russia.s
57. Wittfog€1, O.iental D€spoiism, p. 3?5
58. Wittfog€I, Orieltal D€spotism, p. 378
59. WBte.mrct, Menorie of My Life, p. 154; cf Nkby, Finlsd in the Twenti€th
Cenlury, Iindon 19?9, p. 26,
6{. Copelsd, The Une6y Alliance, Helsinki 1973, p. 120.
61. de Custin€, Lettres de la Russie, p. 129 .f Annie Furuhielm, D€n sligande
62. deCusiin€,p.117
63. deCGtine,p.195
. deCusiin€,p.89
65. Wittfosel, p. 225
ch.lllLookins fot an E
Ptdwtion
2e
No serious historian of Russia can have any hesitation about the
crucial impotance of the Tartar yoke, writes Eugene Kamenka in a
review of Pipes and Szamuely, and he turns to "the often told story of
the emeqence of a society in which everything is dependent upon
and cr€ated by the state." Kamenka continues:
He (szanuely) accepts as I accept, Karl Wittfosel's conc€ption of
o.ientai aesootism. ud he arques thsl Russia is preciselv such a desMti.m dd that il has been oni ever sioce the grard dukes ol M$cory
lolecled ihe Russisn lands bj destroving firsr rheir princes and lben
the chuch and the nobility.
Szamuelv bel;eves, ri;hrlv I should lbink. t'h.or l'Ie prin'iples of
Rwsian slaieaaft werc dram from t}te Mongols and reinforced bv
Russian expe enc€ of the Turkish Empire and, t' a I€sser etent, of
Byzartine principt$.
In view of the importance of this specific Asiatic feature of the regime, it may be useful to set out also Wittfogel's analysis of what it
meant:
even at their rational best, the lam ol such countries exprcss a fundarnentsly unbalanced socieEl situation. Even if thev protect one
comnone; asainst the other, thev do .ot prot€ct the con-Donel!---.as
individuals or as a eroup asainst the absolutist state Shortlv after
Bernier had comne;td upon this phenomenon, John Locke did likewise; and his rererences to Ottonar Turlev' Cevlon' ard.Tsarist
Russia show hih aware thai the tvrannicat variant of judicial proce
dure. which Enslish autocracv failed to develop fuuv nourished uhabpered und€i Orienial despotisb.s
66. Wittfog.l, p. 132
III
The Monuments to Constitutionalism
1,
INTRODUCTION
Back in the mid 1950's when I had secured a modest place for mlseu
in the Swedish judieial career bv being formally admitt€d to the positio]r of hooriitisfishal in the Svea Cout of Appeals, I happened to
st ke up a conveEation with the man in charge of handling such ad_
missions. Having asked what qualities in the candidates were thought
to be relevant to the admission, I was told, much to my surprise, that
personal courage was one of Ihe desired qualilies in a SwediBh judge
ard consequently relevant to lhe admission.
This w; indeed food for thought. NorEallv you will have to Iook
both far and wide among lswyers to discover courage as something
tlpical of their art. CertaiBly, it was not a point insisted upon in our
university training. Not until much later did I discovel the monu'
ments in the memo es of thefu contempoEries that had been raised
hv the iudses of Finland to the sovereignly "f their mission in tbe
.oor"" of t-h" St*ggl" for Law. Not unlil then did I starl to realize
what impact the courage displayed, the sacrifice made, and the stami_
na shovm had made oa those watchiDg.
One of those watching wa-s Haegelstloem. Westemarck got his
Chair as professor of practical philosophy in the altermatll of the
Resu ection of the Legal Order of 1905. In 1911 when HaegeBtroem
received his Chair, StollTin's legislation had been passed deo€eing
that all laws of general state iDterest appefiaining to Finland were to
31
H^EcEisrRoEM
FINLIND'S STRucclE roR
L^w
^ND
be made by impe al Russian institutions, and Finland was sliding
i[to the second pe od ofthe Struggle for Law.
In the judicial field, two outstanding events dominated each
pe od-the fate of the Abo Court of Appeals dominat€d the fiEt, the
fate of the Viborg Coult of Appeals dominated the second. Before at_
templing to evaluate FiDland's imporl.ance to HaegeBtroem's mes'
sase. lhe story of lhese twol^ous?s cel;bres should therefore be [old'
2.
TEE ABO COURT OF APPEALS
followed from the Act of Guaranty, adopted by Czar Alexander I in
1809, and renewed by each new Czar at the occasion of his ascent to
It
the throne, that the Gustavian Swedish fundamental laws of 1772
and 1789 rcmained in force in Finland. According to the Gustavian
constitution, the monarch could not pass laws without the consent of
the Diet. As a result, Finland had her own distinct legel svstem' including a civil code dating from 1734 (i.e. before the Russian conquest) and a penal code from 1889 which was almost entiEly dHJted
on the model of the Swedish penal code of 1864. Finlaad had her own
school s,€tem, her own railway system, and even her own army! recreated in 18?8. The language of administratio[, the courts, schools
and army was Swedhh, although in the course of the 19th century
Finnish made deep inroads into the system. Beforc the astonished
eyes of the Russians, Finland did indeed appear
a wel-orgauised, self sovernins society with thousands of schools,
wherc. honibile dictu, the language of the eBpire is not tausht, with its
oflr industry, which in part comp€tes with their own markets, and with
it! oM fimly secured finarces and $edit systain in the world mekets'
which many richer counhies misht even eNY. .
.'
This Grand Duchy existed in a kind of communion with Russia,
the entity that arose out of the Mongol conquest. I will here use
Eugene Kamenka's description:
So, a! Russiar hiBtorians asree, Russia was conqueied not once,
but in a clucial sense twice: frst by the Monsol armv, the ter ble
Golden Horde, and then by Mongol politi€s ud statecraft, bv the
Monsol State Idea, accordirs to which all m€n q'ere equal in the toirresbt_
talitv of their duty to the stat€-a stat€ seen as elercising
ible, pewasive Inpeium mundi in statu nascendi, M inperium b€fore
3
1, pe. Knby,
finldd
in the T$entieth Century, Lo.doD 1979, p 24
dd
note 2.
Ch.IIIlThe Monunents to Constitutionolisn
33
which all oppo€itio. o. disobedience was an act oft.eason, to be pun-
ishedassuch....
The political system of MNcow was a lystem founded on the utte.
centality and pervasivenes of the stat€. The land, the p.opertv sd
the persons of Russia's citizens belonsed, in principle, to the state- The
smial cat€godes o. cla"res were dete.mined by the state and determined in t€rms of their varyins, but always seve.e, obligations to the
What this meant in practical adminisration has been sketched by
Max Beloff relating to ttle Petrine Russie:
Under Pet€r the old oblisation of nobles to appear in arDs with
their foitoweE a sort of feudal lery-was abolished in favour of a direct peBonal oblisation to serve as an ofiic$ or civit servant-an ob'
ligation which besan at fifteen ard was intended to last for life. Unde.
the strict losic of the slEt€m s Petar intended it, the .i8hts of th€
landlords ov;r their serfs thB derived solelv from the seNices which
they themselves s/ere iD tu.n called upo. tD give to the State.3
. . . the Petrine reforms, while further strenethening the power of
the state, deshoy€d Russia's t.aditional mlstic uitr thev split societv
into two pa.ts, a west€rnized upper class ard a maBs, an "Asiatic" na$,
bound in a bondase which was, Sranuely insists, much closer to siaverv
than to Euiopean serfdom. . . . Russia's "peculiar institution" went far
deeper,
ws far
raore soul-dest.oying, SzaEuely 8sues, than that of the
Ane.ican south. It encompassed in nany ares lifty per cent and not
ten or fift€en per cent of the population; it was {ully backed, indeed it
was creat€d ard supporhd, by the state and its ideologv; it was di
rected asainst men 6nd women of one's own nation. . . .
This is the history of RuEsia as many of the mGt perceptive of h€r
historians have told it-a history that besins and ends iD trasedy, a
history in which the stat€ is consistenuy more impot€nt than societv,
which is totally shaped by it. It is thus that the Marquis de CNtine,
haveling in Russia in rffig, and the until then pro-Soviet Andr€ Gide,
visitins Russia in Sblin's heyday, could say virtualy the sam€ thing
not the same ubiquit us presenc€ of the governnent, the sane absence
of r€straint on power, the same absence of all privat€ views, of all personal opinion, the same blind submission, the same succession of
favouritEs and patholosicsl fear of foreisneB.a
The shocking contrast between the Grand Duchy with her
Swedish rule-oflaw traditions, whatever their short-comings, and the
Asiatic despotism prevailing in Russia, may perhaps be further elabo-
rated by mention of the system of opala that truly reflects
Mont*quieu's ma m that "the principle of despotic govemment is
2. K@enla, "The
56-60, revieeing Tibor
uder the Old R4im€.
B@ie Tradition," Quadrot,
vol 22, no 3, MEch 19?8, pp
od Rich d Pip6, &usia
Smuely, The &usiu Trddition
3. Mu Beloff, The Age of Absolurism 1660 1815, New York 1962, p
4, Kmenka, The Quadrdt eol 22 no 3, p 5?
146-
H^EcEnsrRoEM AND FrNr,^ND's STRUGGLE roR L^w
"Disgiace" (opala) was a term that recurr€d f.equently in
Muscovit€ records but remained larsely ind€fired. ... But the surviving aourc€s rev€al that opara wa! piima ly an instrument of political coDtrot. .. . what made opolo so important in i.cresirs the
sove.eis!'s control and confibuting to the developm€nt of autocracv
was the us€ of dissrace as a politic6lly motivat d weapon against membeB of the elit . This aspect of opala most drew the att€ntion of
foreisn visilorc and skengihened ibeir belietthat MuscoviLe oobleoeo
_bondslaves. 5
were not}lins more than the tsar's
But dissxace could be impo€€d for a variety of other rcasons-and
of&n, o e nust conclude, for no real cause but nerelv on suspicioD
that the diseraced had intended t connit some act of disloyalty. Nor
were it! consequ€n.es strictly d€fined; Opora in the broad sense of the
tsar's "anser" (gnev) could eDtail a variety of p€nalti6: banished ftom
court, confinement to ore's town residence or counEy estate, appoint_
nent to a distant and/o. undesirabl€ pGt, removal fton reNice, Io$ of
nestnichestlo stsndins, partial or complete confiscation of propertv,
arest, iinprisonm€nt, or e,i]e, forced €nt.y into a monastery, or elecu'
tion, dependins upon th€ person dissraced end the reasom for his dis'
favor. . . . DisgracJ was a juridical act of the sovereign autho ty.6
While the system of opala is supposed to have disappeared with
the appearance of the Petrine state, the imprint made rcmained.
[Pet€r] attempted to s€pdate justice from adminishation s i.
Sweden, by placins the lo€al courts under the contlol of the ceDtml collese of iustice i.st€ad of the local soveEors. But this idea ran counter
to the accepted practices of the courby, and the bureaucracy retain€d
its hold over the administration of justice at lealt on the local
Ievel. . . .In fact, most of Pet€r's .eforms in local adninistmtion broke
down very shortly afte. his death, and a nor€ fDdamental reorganization had to await the reign of Catheine II. Despite all the elaborate
machinery thus created, Peter hinself showed to the eDd his preference
for direct compubion through the arbitrary ard un.€strained use of
brutal punishmeDts on high and low alike, and for governins throwh
the insEum€ntslity of individud sued offic€rs picled out to enforce
his wishes whenever and wherever recegeary.T
Annie Furuhielm when looking back at the situation of the Grand
Duchy of Finland in Czarist Rwsia, finds no difficulty to unde$tand
s,hy the old sentlemen, who served in the RNsian nilitary durin8 the
18?0's and 1880's always .epeated the phrase: "The less they speak in
Russia about Finlmd, the happier for us. Tst, tst tst don'tyouunderst€nd that?"3
To the conhast posed by the tradition of Asiatic despotism, thus
handed down through the centuries, was added Russification.
5. Kleilola in Builer, ed, Studies in Rusian Htto.y, p 33.
6.
1. Beloff, The Age o{ Ab&luiism 1660-1815, p. 14.1i
8. Anni. Fur$i€lD, Dd stigand€ o.on, EelBinsfors 1935, p. 357
Ch.
III /The Monunents to
Constitutionalism
35
Alexandra KolloDtay gives an impressionistic view of what blought
about the russification period:
The 1880'€ was a darl, hdd, and sd period in Russim historv' Life
wa! like a bad-smeuins pond No retreshing sprin8B seemed lo elisl
anwhere. AU doors leadi,ts to freedom ard free t}tinkins wffe (lo€€d
as"herroeticallv as possi6le. The spiritual atmosphere was 3uf'
t*atinc. . . . The Czarisr recime f,'orl€d iniensivelJ oD l.be etien]1ina
ri"n frim Holv Rmia oi everv shsde of danseious revolutioDarv
ideas'. .
..
The liEitless Dower oflbcCzar ws proclaised as bei'e holv"Hol\ RBqis mNt isist uDon her old t.adidons. Russia had nothins to
leam from the 'deeenerate powers ot ttle west A spiJit of rea'tionarv
nan slavilm oEvailed ir the new Rulsian foreisn policv' '
' There b ;ne mar whose nme cobes fo h s the slmbol foi aI lhe
dimi;al &ck aDd the resctionsry spi t that p.evailed in Rulsiar poli-
ti.s
duiE
these dalk Years
It qaJPobedonosiscv, rhe Prduratorolthe Holv Slmod '
The Holv Svnod br.ame a oishiv st3te instilution The Church re_
sained tbe inn,rence upon t]'e siate busin€s qhich il hsd lo€t duitrE
;he reim of Peter the GreaL
Beine a buming Russian par.iot. Pobedono€bev used ax tus influuoo"n the Czar md his Ministf,n to oale l.heo acc'pl the policv
'rus_
of rusifi.ation. His *as lbe initialive thal bade it imperative to
tl" edti" provinces, Caucasu and Tuke€tsn' e
..*
To"lryiFint*a,
PobedoDostsev, pan_Slavism stood for the founding of the
Russian Empire on a tdple base of Slav culture, Orthodox religion
and Tsarist ;utoclacy. It was Asiatic despotism n'ith a coating of reli
gious and racial mysticism. But under that cloak came the Ru$ian
ibinounihi, t}.e large Russian burcaucracv the formation of which
had been on€ of the most visible r*ults of the reforms of Nicholas
and Alerander IL To the chinouni&i Russihcation meant the opening
up of a new world of opportuniti€s and car€eis at the expense of the
Europeanized officialdom of which Russia until then had made sueh
a wide use. The latter could expect to be cast out of the Ru$ian body
politic because they were non-Slavs. What it meant could be studied
in the Baltic Provinces where the policy of Russification set in first.
The Iesson was not lost in Finland.
(b)
'Ihe Monifesto Conceming
a
Neu Cotlsciption Act'
lfi1
The Russian Minist€r of war, Kuopatkin, indeed, had drafted an
armed Forces Bill (supra p- 8). With regard to militslv questions, the
organization in Fintand had followed a sepsrate line. Piofessor
9, Alerandra Kollontay, D€r fdrsta €tappen,
No.dstroh Bonnier, Sl&tlolm 1945, pp. 149 191
iresl. inlo
Swedbh bv Tora
H^EcBRsrRoEM aND FTNLAND'S STRUGGLE roR
L^w
Anatole G. Mazour, whose seNice in the Russian White Army no
doubt sharpened his eyes for military msttels, describes the organization as follows:
A carctul study of Finland's s]tstf,D of defense led the imperial sovemment t a decision in 1812 to form three (aft-er 1826 reduc€d to two)
chass€ur .esinents e(lusively of Finnish-born e.list€d m€n. Four
yeaE lat€r these uits weie abolished altosether. In St. PeteNburs
Finnish Life Guard Light Battalions had been maintained since 1829 as
part of the Inperial Guaid. They se ed loyatly in the Polbh campaisn
of r$1 and lat€r participated in Hursary in 1849, while durins the
Cdmean war they caded out suald duties alons the Baltic. In the
Russo'Turkish $lar of 187? 1878 the Finnish Guard asain t@k part in
th€ caDpaisl and served valiartly. In tlE naly two Finnish Naval
Crews were formed (ainsAy Mo.skor Ekipazhl, one in 1830 and aroth'
er in 1853.
Du ns the reisa of Alexander II, when the question of universal
mitita$ service came up for serious co.lideration it was only natuml
that the position of Finlard sholnd be touched upon. A feelins anoDg
sone menberc of th€ [Ru$ian] administratioD was thst ir faimess to
alt, if a general s)€t2m of conscnpdon wa3 to be intrcduced, finland
should be included. A speciai Finnish coinmission was appoinbd t
sive t]rc matte. serioN consideration. tn february 1871 the minister of
war report2d to the Dmperor in favour of havins Fi.ldd iDcluded in
the new military s)lsten; Finnish youns Den wer€ to be enlist€d and to
form aD inseparabte pa$ of the imperial arxny. In principle this was app.oved by the C.om.
Wh€n, however, by 18?5 the detaib were worked out, a nunber of
important chanses were incorporatrd. On€ of these wB that the number of FiDnilh entist€d ben mut be specifically set; another that the
Finnbh unit fomed must remain entirely apa( fron the Russian
armed forc*; a third, that the commander in chief of the Finnish military unit was t be the soveDor seneral of Fi.lmd. In 18?7 the pla!
was foNarded to th€ Diet fo. discusion, an act which the Minbt€r of
War st.enuousty opposed....
The Diet, sfte. emining the suggest€d plaD leerned t favor the
idea of maintenance of a separat€ Finnish arm€d force, but that wag
about all it seemed to favor. The deputies elp.essed their uequivocal
opinion that in view of Finland's status within the Empire, an armed
fo.ce based on universal military service, as far as the Duchy was concerned, neant only one thins-def€nse of the Duchy. The Diet €luci
dat€d furthe. by .equesting that a special war office be set up for
Dilit{jy affairs
within Finland and operate enti.ely apart fron tlrc REsie ministry of
war. Finally, the d€puties stated, membeE of the armed forces of the
G.and Duchy of Finland were to be able tD speak either Finnish or
Swedish. At the end of ttn yeais the plan adopted should be re€ranined and necessary chanses baled on elpelienc€ sained sholnd be
further iDititated. The Minister of We sgreed with the last prcvision
I'inland. This office must assume responsibility for
md DothiDs
e1se. Nonetheless
on December 18, 1878, the
ltstub
was
Ah-
III/The Monument, to CoAtitutionalism
37
ions and in Januarv 1881'
*enl inroeffeci'ru
ofthesovereign
tio nonths belore the as$siination
Having encountered the reseNation of the committee members
(st'reprcsentLg Finland, the Kurokopatkin project came to nothing
represenla_
ori). ln 1898 a new mixed commil.Lee. on which only one
iiveofFinland served, prepared a second drsft lo be submitted to l'he
Diet. Then the Februaty Manifesto speeded matters: reducing the
Diet to a consultative body, it extended the application of the Rus_
sian military code into Finland. This involved th€ pmlongation of the
lencth of service, lhe increase of quota. the emplolment of Russien
si6ed bv AleraDder Il. acceptins
I
he sugsEt
officers, l,he adoprion ot lhe Russim language. snd t'he service of the
armv in Ru$ia. The Diet declared loudly that a leform of this kind
its
could not be made without its coDsent. However, in order to testify
nuin
which
new
bill
invaltv and ils sood will, the Diet. drew up a
of Russia But at this
-"roo" "on""."ion" were made l,o lhe vies5
iunclure il was called upon lor its advice with regard !o Levo new bills'
which under prel,ext of equalizing the milil,ary burdens belween
Finlan<l and Russia, disposed moreover of its own military elpendi
tures; Finland wss to furnish to the RussiaD treasury an annual cont bu;ion, whieh, amounting in the first vesr to 1'121000 Marks,
would smount, beginning with the ninth veal, to 10 000 000 Marks'
The Diet refused to examine them and reDesed its protests No at_
tention was paid to them. In July, 1901, the Dmpelor promulgat€d
the new m iLry code for Finla:rd.'t Then he ordered the disbanding
of almost the whole army of Finland and the occupation of its quar_
ters by RusBian troops.''?
Conscripted Finns were hencefortb liable lo serve in any pan of
the RusBian Empire. OnIy one battalion of guards and one regiment
of dragoons of the old army of Finland were to remain; the rest was to
be disbanded and incorporat€d into the IEperial Amy, inclusive the
Finnish sha+shooter battalions, the Finnish dragoon regiment and
the naval cadet academy iu Fredrikshamn.l3
In conformity with the provisions of the February Menifesto, this
CoDsc ption Act had by-passed the Diet of Finland. ID tlis way it
a]so had been brought about unla*'fullv as far as the Law of Finlald
was concerned. AccordiDg to the plinciple of formal la*'fulness, the
binding force of a legal enactment could not be anDulled in any other
10-
An
pp. 18 fl.
ole
Maeu. Finlmd b"t*een Est dd
Wost,
Prin eton Unir Pt@ 1956'
" il. rts reol lo m, p. 1: Mdif6t ang. Dv vahplktsl4 f6r StorffEtend6m€t
FinlDnd, sivet l2 iuli 1901.
12. t N. PoLitis, 1912 AE. J. Int. L. 263 r.
lindon 1979, p 27
13. cf Kitby,
Fildd
in the
T*ettieth Centuv,
HaEGEtstRoEM AND FNLIND'S STRuccLE roE Law
way than the one in which
it
had b€en enacted or by means of a pro-
cedue that v,/as superior in the eyes of the Constitution. Since the
Conscription Act of 1878 had been passed with the consent of the
Estates of Finland it could not be leplaced except with the consent of
at least three of the four Estates.
What attitude to tale to the Consc ptioD Act of 1901 and to it's
implementation became a fatal issue in FinlaDd. Its population divided into several basic groups. The Compliers ('appeasers' or 'submissives': in Swedish undfalLenhetsmonnen, rcflectil].g the sttitude
that today is often tied to the term 'finlandization') aryued that
Finland Bhould go along with Russian demands hoping to maintain a
certain influence over the course of events. Another group made up
mostly of Swedes in govemmental offices snd judicial positions, but
also the so-called young (pure-) Finns, maintained to the utmost the
p nciple ol Law. Nothing tllat had not been created accoiding to
Law could have the force of Law. They cailed themselves the Constitution&lists. By others they were called the men of passive
resistance.
In August 1900 already, th€ fiNt steps were taken tolvards the formation of a coordinated resistance. In 1901 there came into existence
s central national committee in Helsingfors for the purpose of orge,
nizing the resiatance movement country-wide and making
propagandal It happened at the place of Ame CederhoL:n, a lawyer.
"It was called Kagalen by our Russian adversaries," srote Annie
Furuhjelm "a word borrowed from Yiddish where it is supposed to
mean a secret society."ta This llafie KagaLen given derisively by the
Russian administration was adopted by the committee itself and was
thereafte! consistently used to signify its existence and work.
The Ru$ians were determined to enforce their new Conscription
Act. In fact, it was central to Bobrikov's policy although some in
Ru-ssia seem to have been less than happy about the turn of events.t5
The Russian authorities hoped to have their system accepted without
too much difficulty by strictly ]imiting the number of recruits that
would be picked from the call-up to the few hundred needed to keep
the Finnish battalion complete.'6 In this perspective the call,up was
decreed and planned to be enforced dudng 1902.17
14. Amie Fuuhjeln, Den stisude o.or, HelsinsfoB 1935, p. 256
15. cf Knby, Filled in the Twentieih C€ntu.y, Iindon 19?9, p. 2?
16. Helmer J. Wahl.@s, S.aDdinalia-Psi ed P!6€nt. Thoush Revoturions ro
Libedy,II. Parl, Odense (Denmk) 1959, p. ?40
1?. rFS 1901 No 28r R*Lripr m& intarhnder riu aktir LrisBijenst av viimpliLrisl
maskap i Finland lr
1901.
Ch.
k)
III lThe Monunedts to Cottstitutionalism
39
The Abo Coutt ot Appeal and the Coesach Riots
Utravoidably, the courage and faith of the courts of Finland in what
they held to be Law would be iested. The evolution mav here be
sketched by using, in ttanslation, some accouDts recently published
by legal scholars in Finland.
The first part is take[ from a chapter in a work devoted to the
history of the Abo Court of Appeal, for unknown reasons only pub'
lished in the Finnish language.ts It is w tten by Professor Yrjii
Blomstedta'
Shoitly thereafter the Court of Appeal wes seized with another case
arisine from $e illeqal CoDscription Ac1. ln februarv 1902. the SeDr li,lilir,N Office had sent to all aulhorities and institutions a Citcu'
"h
lar Letter r;questins, pu.luant to the Conscription Act' inforDation
about euch persons in ihe variou governmentrl agenci€s as should be
considered to b€ 'irreplaceable' snd cotrequentlv to be relieved fron
the duty to nake nilit{ry se ice and to be placed accordinglv on the
Iist of rese es. The replies were elpect"d t be delivered before the
end of May; however, the matter was fiEt "ftozen." The P.€sident
perhaps because he want€d to avoid that the voung snd zealous C;nstitutionals should padcipate in the handlins of the natt€.saw fit to coDst.ue the natt€r 6 beins on€ of an 'econonic kind' md
consequently not to be handled by adjoined members; but he wa! out-
Sbens
The Constitutionab were I€d partly by the enthmiastic Dot to sav
oassionale assessor Fr. Ludenius, pardy by Ihc sFadfasl lesalisr P. E.
Svinhuf!rud who had coboenced atkndios his office in t}te Coun of
Appeal s frcm the b€siming of the yee 1902; in thoroush'going memor;nda he sousht for ihe benefit of himself ard otheft to explore the
controversial questions down to their very essence.
The.eaft€r, the middle of Apdl 1902 having already passed wheD it
was time to fomulate the reply, the Con€titutional membeB of the
courts of appeal had sriv€d at a uniforn position as to how the text
was t read- In Abo, it was up to H. W. Per€, the younge€t adjoined
member to pesent the position. His declaration r€ad that he onlv acted
in accordarce with Iaw and.justice, and since the Consc ption Act
failed of being creat€d in a la*'ful nann€r, the command t provide in'
formation, which was concomitant to the Act, could not be car ed out.
ln this po€irioo he was thereafter joioed by all rhe members ot the
Coun of Appeal, except the President'!u
At this poinl il may be proper to mention something about the
President. Blomst€dt desc bes him in the following way:
At this time, the President of the Court of Appeal was Enil Edvad
StreDs, a lavJyer of about 60 years of a8e. As a vouns student, he hsd
18.
19,
Tunn hovioikeu 1623 31/10 19?3 Abo hovrett, Pond Helsinki
Ydo Blomstedl. T!run hoqoikeus sortowmiD Lrii'isn.
20. Blonstedt, op-cit, p, 22? f,
19?3.
40
FINL^ND'S STRUGGLE roR L^w
H^EcERsrRoEM
^ND
been one of th€ 'MalteE in Moscow', one of those who had in
Rcsia bv
mears of eovernmental scholarship acqui.ed a pef€ct connsd of-the
Rrrcian l;puue. Hsvine becn admirred to thc judicial (sreer he hsd
h.-,n hv s;in; ib lhe viborg Couri of Appesl and had been used in
*"-onsibte tunciions in its subordinale couts until in 1866 when he recei;ed m ofrice at lhe Finnish Chscellerv of His Malestv the Emperor'
There he seN€d for over two decades.. .The close€t clsssification
;ould be to see him as s tvpical bureauc.at of the end of the 19th cen
tuN: furthemore he had a verv clear view of the policv ihat Russia pu'_
sueA vis-A'vis Finland; it wa! not in vain that he had served for twe'tvone wars ir Pelersbus He hsd close relalions to the lcsdine old men of
iinnirh Partv althoush hp h;hsell was essentiollv not a psrv_man'
'h"
otriciels
ir,".ri..i,' oi rhe me;be.s or rhe Courr of Appeal and irsConsriru.r ir';"ii." S*"ai.l spea-king ard Swedish oinded and
""."
ti;nat as far as the Russian policv
was concerned
'r
Durins Ihe submer ui i9o2 rhe barler ws discussed in Helsinsfors
P€Lrshurs. Visitins Abo in earlv June 1902. Bobrikov had made
""dln
Siiens unae*r,;d thar u;less rbe majorirv or lhe 'ourt or Appeal did
i."ailere were hard rimes ah.sd Be ir tha hc courts ol . ppeal were
nor Lo be sbolished. Yet the Drmuralor had beeD able lo confide lhst'if
the courts of appeal did not change their position the coftequences
*ould be severe, iven dismissak were beins planncd'
The arl.empts rl pPBuasion $ere in tainl il was trol possible ro
chanse rhe rieil,s ol the Conslirulionals as ro what ws consisttnr with
kw ;d iustice. Il appeaJs that aheadv before the visrt of lhe Covernor
General Presidenr Siens had reatized rhal the viem held wcre noi to
resistance within the Abo Cout of Appeals
be infiuenced. The passire
_fornalistic
interyretation of what wa' legal. and no
froze into a strictly
General drcw his conclusions of
Governor
The
flcrihilitv was to b; seen
the obstinacy of the courts of appesl and let the Car approve of the
measu.€s of punishment: the three eldest nenbeis of e&ch cout of ap_
oeat were to be dismissd as s leson md a warnine to olheG" '
On O(lober Il, 1902, lhe lel ler of the SenaF ws read to lhe courl in
olendv sessiotr: it contsined rhc decision made bv rhe Czu on SeplcB
Ler 26. sme vear. with thc dismissal3 and wamins' In spite ot thc lacl
that those disbissed had been deprived of lheir rishl onlv to tF dismlssed after a crininal prosecutio;, finallv adjudged, thev considered
themselves fo.ced t subnit to the will of his Imperial Majetv md vacate their
offic$.z
The call-up of the consc pts was largely in the hands of the local
government.23 When no attention was there paid to the illegal
bonscription Act and its ancilary statut€s, the Gove,nors inteNened
by settig fixed penalties fo! futurc non_compliance. Representativeg
oi th" loid governments rcplied by bringing c minal prcsecutiong
against the Covemols for bteach of official duty, the Govemois alleg_
ealy having set these penalties without anv foundation in law'
21. Blomit€dt, op.cil. p. 224.
22. Blomsi€dt- oo.cit. o.229.
Zr. .t rrS lmr':U rs p. 18: Kejs. *nataE lor Flnland beslul ans' lsndPk in
delnins i uppbrdsomraden, givet ? oLt 1902
Ch.
III/The Monumetus to
Constitutiovlisn
4l
Itr order to ret rid of these, as such difficult cases the Czar had, at
th€ request of the Govemor General, mde special provisioDs about the
pr@edure to be folowed in the cs* of institution of c.ininal p.Geo
tions for breach of official duty, and these piovisions h&d b€en made
ietroactive in effect.'
As from this point I will suppl€m€nt the story as told by Professor
Blomstedt with the account given by Professor Bo Palmgr€n in a
speech of 1956 to the honour of P.E. Svinhuflud, the Assessor in the
Abo Court of Appeals who later became the Plesident of independent
inland.
The speech was printed in Huvudstadsbladet June 10, 1956 and is
rcprinted in the aesrschril, to Palmgren that was published by Juridiska fiircningen i Finland with the title Idr individ en och tiittenOn September 20, 1902, there were published in Finlands
Fdrfafininessamlinq \rhe Grand Duchy's Law Gazette) fiee imperial
desees desisaed to undermine the iole beins played by tlE sovemnentsl asencies and the cou ! in uphoidins the autonomy of ou country. The RuBsian powerhold€B intended in particular to breal the
.esistance vi!-e-vis the RBsification neasures shom by law-abiding
F
officials ond judses. On the one hand, the September decrees included
provisions f&cilitating the dbmissal of law-abidins officials and juds€s.
On the other hand, there were povisions renderiDs it more difficult o.
preventins the irstitutioD of criminal proce€dinss asainst the abetters
of the resine-asainst such sovernnental officials who had promoted
i, Law the endeavouG of the power-holders.
ln the letter of September 9 of the State Secretariat of the
by official acts conha.y
Ministry, it was said that the C,,I had siven ordet that the t€mpor8ry
odinance for the procedure to be folo\i,ed when criminai prGecutione
for breach of officisl duty were t be institutrd, should be extrnded to
cov€r with .eged to their force and effect all cases about breach of offi'
ciat duty with which the courts w€re seized at that tim€.
On Novembe. 11, the Senatet Departrdent of JusticFi.e. in those
dsys the Supr€he Cout sent a letter to the couk of appeal in which
it wss ordered that aI the crininal cases which were covered by the
said odinance should b€ disl[bs€d imediately. All three courts of appeal rcfused t submit t this cor1mud. The Abo Court of Appeal de'
clared that the Graciow Command set out in the Ietter of the State
Seciet, at of the Minishy did not have the force of law ed that therefore the oder of the Department of Justi@ @uld not be carried out by
the Court of Appeal.
Th€ refusal of t}le couts of appeal caused the Govemo. Genemt
Bobrikov to int€Nene by means of the P.ocurato. General who belonged to the party of the Conpliels. The Prmu.ator.. . request€d on
Jeuary 21, 1903, from all cou.ts of appeal copies of the Erinut€s taten
when the letter of the Department of JNtice wa! beins read for deci-
sion. These copies w€re seDt by the Procurator to the Govemor Gene.al
on Febmary 13.'5
24. Blomtedt, op.cit p- 2291
25. Palhg.en, Svinhutwd i .attskmpen, op.cit- p. 35 f.
H-aEGERsrRoEM AND
42
FINL ND's STRuccLB roR L^w
Bv this time tbe drama in the Abo Court of App€al was
c
ap_
minal prosecution
province
of Nvland'
the
of
Governor
v.
f.igorodov.
li fr,taior
on the
place
Helsingfors
in
took
part
rioLs
that
in
th;
U*"Jo" f,i"
a finale. The Court was seized with a
Droa;hins-cenerat
18th of
Ap
11902.
The background was the ca[-up of conscdpts that ]ad been orgai" Uelsingfors. Only a few appeared, the city being
,rir"d to t t""pt
"" a largelv Swedish-speaking one Those who apaithat time'stitt
oeared were being jeered by the onlookers and the atomosphere $ew
i"*ou.. Cto*a" irr tt"ted at tlre Place of the SenaLe and Kaigorodov'
sharp_shooter !eg_
a true Russian an-d formerly the Chief of a Russian
from the
;;;r. ;;" nervous too. i{e then -after a telephone callgarrisoned
or, u .otnjo of the Orenburgiar Cossacks
S"rrrte]"tU"a
-i"Lit
arrd ga"e ihe- ordem to "clean up the Place and
i.
...r."r tfr"""r.*
Senato.s:'This thev did in the Cossack wav The deposi
iio, t,o ttt" City Cou.t of Helsingfor!, made bv Lennarl Hohenlhal inagainst Kaigorodov (Hohenthal being latel the asBassin of
the
reads as folows (in hanslation)'
Hohenthal was one in the crowd finding
rh. mdketolace full ofDounted Cossacks sel'tine int'o lhe $owds u€ing
ir".i.
r. Havins successtullv msde it over hau lbe pla'e I
",",it
Md theststue
.,.'*Jts","*' tt" "ios otthe Church ofSt Nicolai
II ststue slilt in placel I then-saw.a
;"ifi;;fi;; fc;n-i*der
rhe ststue' Finallv
i"'J-["i.* o"*""a Uv .ountf,d Co€sa'ksthearoud
st'aiue and su'ceeded r'o
iL" i"ro-- i.i,o"a rn"i'on fence s.routrd
racins the
rliry o.otf,dion behind Afl and Science
"rr-ti,"
",i,iri
*43 puned dom bv a civ ian and a pair of
S;;.'r;;;;;
"ff *hipp.d. Finatlv I saw her beins lhrown ro
C**"1" -a t"p.,taatv
inlo the pla'e
the sroud and pushed awav from lhe elevation oul
a
cos€a'ks
aDd
horses
*i',"i .r'" ar",ppi*"a r"tw;n
A. soon as the Cossack ots had taken place a private inquiry was
orssnized to estabtish whaL damage had been done Lo p vate individ
,rsLbv the aclivitieg of the Russian soldiery but al-so and above all lo
been the meastues taken by the mili_
-rt evidettt tror, "enseless hadlawyers
were recruited to receive snd
twenty
So."
art"
""tfro;ti"".
This became the basis for
available'
evidence
the
reduce to writing
which was edited by the
i.a.
Kaigorodov
made
againBt
the complaint
That in tum is lhe
Appeal
of
Court
ihe
Abo
to
iinit"i
sent
^"a
Palm$en:
Professor
bv
description
point
followiDg
for
tbe
sLs;ing
in
the
Abo Coun ol
pan
hot
i'ularlv
The leqal is€ue was at that tiEe
Led a cii6!
had
initia
Fiscal
Schvbersson
r
he
Advoetr
Tier€,
ADoeal.
"ase
O""t"*flohnsson)
i;t."*rt.i
.iip'*"*tr"i
t"t t.*"h
of omcial dutv againsl the Govemor ot the
26. Arne C€derholn, Eusen SchauFu @h k@ckLravalleDa
1902, Lucifer 1927
i
HekinsfoB er
Ch.
III/The Monuments to
ConstitutionoLism
43
of Nytand, Major Gene.al Kaigorodov, because of two
complaints<ne made by Mr. Theman, mdg. phil., conce.ning unlae{ul arrest, and the other by M.. Hoffstl6n, med. lic., relating to the
offici&l measure€ talen by Xaigorodov on Ap.iI 18, 1902, which iD
Province
volved givins o.der to a squadron of the Orenbursiar Cosecks to disper€e the crowds having assenbted at the Senat€ Place becsuse of the
unla$'ful conscription 1ery.
On January 2?, 1903, the Abo Court of Appeals ordered that testi'
mony in the case should be heard by the City Court in HebiDsfoB.
Thde hearing! of witness$ were set to take place on Feb.uarv 26 and
27.
All thi€ wa! repo.ted by the P.o€eotoi Johnsson on Iebruarv 17 in
a deferential letter t the Czar' At the sane time he sent to the Czar
copies of tle minutes lalen in the courts of appeal wheo lhe lel.ler of
$e Deparlment of Juslice was read. On FPbruary 19. t}le Depanmen(
of Justice too, sent a lett r to th€ Cze in the same cse.'??
the President alone voting against the Abo
Court of Appeal had unequivocally held the command of the Czar to
In plenary
sessions,
be against the Law. ID Bobrikov's Russian perspective, this was anti_
government behaviour. As such it must be punished. He proposed
such punishments to the Czar.'3
On February 23, were dismissed, without right to pemion, all t]rcse
fifteen who had voted against th€ o.der of the Department of Jctic€ in
the plenary session of the Abo Court of Appeal. ThBe were
appellate justices Tenl6n, Lindstroem and von Knorrins,
asessors Kurolin, Lundenius, Juselius, Almqvist, Svinhufnd,
Alednius, Bronikowskyand ldestah,
sefi€tarY Hdman,
vice advocat€ rrscal Giun6. and
notaries Pere and Furuhjelm.
Furthemore w€re dismissed the Advocate fiscal Schybereson who had
shom by his official acts that he did not intrnd to cary out the order
of the Department of Justic€.
Because of these dismissals some 23 furth$ officiab, holding or'
dinary or extra office, immediately withdrew lrom their offices.
RemainiDs in seNice wa! only the Prcsident, two a$essoE ard thiee
withd.€w sho.uy
ofiiciats o.dinary, of which howev€r
The seats thus vacated were filled by Compliant! as the
3.
need
THE MANIFESI:O OF NOV.4,190.5 RELATING TO MEASUNES TO
BE TAAEN FOR RESTORING THE LAWFUL ORDER IN THE
COUNTRY
Nobody who is lamiliar with tlre wa)'s of iudges and bureaucmts can
27. Palmsren, Svinhutvud i ditskdpen, op.cit p. 36
28. Cf Blomstedt, op.cit, p.231,
29. Pdlngien, Svinhufvud i rnttsLdlen, op.cit p. 36.
HaEcERsmos
^ND
FrNL^ND'8 STRUGGLE poR Law
fail to be impressed by the faith, courage and stamina displayed by
the judges of the Abo Court of Appeal in t}lose difficult day's. Indeed,
offices and iDcomes were being sacdficed as something self-evident
out of belief in the Law of ihe land as an entity by itself, incorpoEting a value in iLself. The great sacdfices, of coufte, crcated intense
bittemess against those Compliers who were happy to fill the vacated
offices thereby also contributing to the t umph of the Finnishspeaking element over the Swedish speaking el€ment in the judicial
sphere.
For their pet, the Rusians, concemed chiefly with the success of
then prog.m, were willing to tol€rate opposition that pos€d no real
duser. r'or instance, Bobrikov pusued s policy of replacins c ticsl
Finnish ofticials with concililtDry Finm, rather thar with RBsians,
he
nisht
3
have doDe.so
The heroic stand reflected in this story is nothing more, one is inclined to believe on the basis of a not overly pessimistic outlook, than
the stuff for an heroic hagedy. All the more miraculous it then is that
in this case all the virtues of those who remained steadfast and sacrificed s/illingly were rcwarded by a complet€ success.
The Russian defeat in the Russo-Japenese War was accompanied
bv unrest fermentins throushout the empire in 1905. Finally it
erupted on 25 October. Aft€r five days of revolution, the badly
shaken autocBcy felt compelled to issue a manifesto guaranteeing in-
dividual rights and promising reform.
The Constitutionalisls in Finland seized upon the occa-sion. In
Helsingfors resotutions were passed calling for the dismissal of all officials illegally appoint€d dudng the past yeaE, every appointment to
an office held by someone who had been illegally dismissed being
held to be an illegal sppointment. Revolutionary fervor in the strcets,
and a general strike in Finland showed the Russian authorities that
the situation was getting out of hand. On Saturday, November 4,
1905, the Czar epproved whet the Constitutionalists had proposed.
The manifesto signed embodied their programme of a retum to the
srafus q&o onre Bobrikov.
Restoring legality was a traumatic experience. The Finnishminded Compliers holding seats in the courts were most unwilling to
give up the gains they had made for themselves aDd for the Finnishspeaking front; the Swedish-speaking Constitutionalists retuming
from banishment and exile were not magnanimous. In the end at a
ceremony taking place on March 26, 1907, the illegally appointed vacated their offices and the illegally dismissed took them over, each
30. Wil[@ A. Copeland, TIe U.esy Allioce. Collabo.atio. b€tween the Fi.nish
Opposition and the Russian Undersround. 189+-1904. H€lsinki 1973, p. 123
Ch.
III/fhe
Monuments to Cotustitutionalism
45
party making a statement to the protocol setting out its point of
4.
'THE VIBOFG COURT OF APPDALS
The g&o onre Manifesto-unhappily for the Grand Duchy it seemed
at the time was only a truce. From 1907 on there wete numerous in_
dications t}lat the battle had begun again. The change from the ex_
clusive autocraey of the Czar to a Russia that was ruled by the Czar
assieted by a Russian Duma made Finland more expoeed to Russian
rcsentment, Dot less. At the same time the Diet of Finland had suffered an intense demosatization in the wake of the turmoil of 1905.
By 1906 the old Diet of four estates hed been abolished by statute, replacing it with a single chamber Diet of 200 members, elected by uni
versal, free and secret ballot. Equal suffrage was extended to every
male and female citizen over twenty-four years of age. When in 190?,
the new elections were held, the Social Democratic Patty won 80 out
of 200 seat3, giving it a majority althowh not a plurality. Not unnaturally, Russian bureeucrats, soldiels, busine$men and nationalists
were deeply worried by the existence of such a virtual republic in
Finland. Moreover, the rule of law as it could be upheld in Finland in
the shadow of its separate srstem of penal and civil laws wa8 likely often to thwart the effots of the Russian police to lay their hands oD
revolutionaries having escap€d into Finland. It wa! no coincidence
that LeDin was in hiding in Finlaad before joining the Stockiolm
Congress of the Russian Soci&I Democratic pa*y in 1906. Another
p me concem tended to be the brealing down of Finland's economic
advantages. So successful were the Finnish commodities such as pap€I in penetrating the Russian markets that by 1913 they would have
captured one third of them.i' Extending Russian business activities
into the Grand Duchy was a favoured line among unhappy Russian
The new man having gained the fevour of Czar Nicholas II was
Peter A. Stob?in. He was appointed minister of the inte or in May
1906 and wa-s named Eesident of the Council of MinisteB (in effect,
p me minister) in July. His hahed of socialists of any brand whatever or wherever they might stem lrom was deep and unbounded.s3 To a
31. A! ro rh. olFb dilficulr lessl isups st sL€Le, see Profer Blomiedl
kibution in Turu holioiteG 162331/lO 1973Abohoqin, pp.233.23?
32. Kirby, Finled in dE'Itenlieln C€trruy, p
33. A.aiole G.
1956, p. 27
3-{.
MMu, Fitrlud betpen Eat ed Wet, Princeton
Univ.
s con
PrB
H^EcERsrRoEM
^ND
FrNL^ND'S STRUGGLE roR
L^w
Finland with a socialist majodty he wss a given enemy 6nd he was
also a far more formidable adveEary than Bob kov had beeD. Not
only was Stolypin able to engineer support for his polici$ within the
DurBa, but he also went to th€ heart of the matter by denying the
light of the Diet of Finland to l€gislate on matters of general state int€lest. The general displeasure with the new ultrademocratic Diet of
Finland showed in the Czar refusing his approval of the najority of
the laws passed by that Diet-among them a Law for Total Prohibition (of the consumption of alcoholic beverages).
On May 18, 1908, in a lengthy discourse before the Duma, Sto'
Iypin promised a change in the relations of Finland to Russia. On
May 2oruune 2, 1908, without the Govemment of the Gmnd Duchy
being notifred of the st€p, a decree was sig ed by the Czar to the effect that a[ FinnGh questioDs werc to be examined by the Russian
Council before they were refeEed to the Czar, so that from then on
the Council of Ministers might prevent the passage of any F'innish
law on the pretext that it affected Russian interests.s
Now the right was claimed lor the Duma to vote on general laws,
the list of which, being purely arbitrary in chamcter, might be enlarged aft€I the wishes of the Duma. The Diet of Finland was to have
in these matters only a mere advisory voice. In spite of the prot€sts of
the Diet, such a plan was submitted to the Duma, and on receiving a
favouable majo ty in that body it became the Law of June 1?/30
1910. By the Russian-American scholar, Professor Anatole G.
Mazour, its impon is described in the following vJay:
The law of June 30, 1910, once more set out to 'cla.ify' purelytr'innish a! distinsuished fron aI Enpirc lesislation; Only St. Pet rsbu.s wa! cohpeteDt to ddide aI questions affectins th€ int€rests of
the Rusis EDpire. Article 2 defined Finlard's participatioD iD th€
Enpire's eipenditurcs, it€ relation to military seNice, the statE of
Russian-born subjects residins in Firlard, the tegislation concernins
fr€€dom of unions, customst pGtal regulstions transportstion, and
cohmunication. In the cse of any jurisdictional disput€, the a$wer
was to be found in whether it pe sined to'stat€' or puely'l@al inter'
ests.' tn case of the former, the widest rmg€ of int€rpretation was permitted; every issue clssifi€d ude. 'mtional inter$t€' stripped the
FiDnish sovemment of its claimed power. Since the power of decision
rcst€d in the hsnds of imperial suthonty, the Diet ws not even consult2d in each ca!e. Only when adjudication wB delivered could the
Diet etpre$ it! view. This reduced the Diet to a mere rmp in total
subservience lo t]le imperial go"ement-1'
34. .f N. Poliiis, Am. J.lnr L- 1912, p- 26l liJean Jacques Cspu, Ia.6sistance
L6gale en finbnde, Pa.is 1913,p.21
35. A. Mazour, Finland betw@n Est md W6t. Princeton Univ. Ples 1956, p.33
Ch.III/The Monuments to Co6titutionali$m
47
Offended by this method, the Diet rcfused to render anv opinion
it slso drew the consequences. The Law of June 30, 1910, wa-s the
only one of its kind to be published in the regdar official gazette of
and
Finland Finlands Forfattningssamling.s Such laws as had been
in accordance with the provisions of the Law of 1910 did not
appear in that gazette but were enteled, with a sense of the slmbolic
importance of the matter, into a special publicetion called "Collec_
tion of Laws and Ordinances Touching Finland Being of Genelal Importance to the Empirc."'?
One of the subjects which from then on, in accordsnce with the
Lew of 1910, werc co{Bidered as forming pafi of the general legisla_
tion was the rights of Russians domiciled in Finland.
passed
(b)
The Equalization Act, 1912
The Russian Act of January 2o,/February 2, 1912 conceming the
the ghts of Russian subjects with those of citizens of
Finland (hereinaJter tllle Equalization Acr) brought the rights of
Russians domiciled iD Finland into legislative focus. It was a short
statut€. The pdncipal article read as follows:
tut. 1. Th€ Russian subject! who are not citizeDs of Finland shall
enjoy the saEe rights in Finland as the citizeN of that coutlv'
There loltowed articles attempting to male sure that Russian
academie and school degees should carry the same privileges in
Finland ss they did elsewhere in the Russian Empire lt was Ieft to
equalization of
the Governor Ceneral to determine in detail what degree was equiva_
lent to what in the respective fields. Art. 4 provided specifica-Ily for
the possibliity to be appoint€d to t€ach history in Finland. Of what-
it was Clristian, the confessol was to have
of Finlsnd (a point aiming at the monopdght
as
the
citizen
the same
faith). Art. 5 gave to 5lI Russian
Lutheran
those
of
the
oly held by
in
the Russia! language with the
communicate
the
right
to
subjects
pursuant
to Art. 6, if official docu_
Finlsnd.
Moreovel,
ties
of
autho
ments were sent to a RussiaD subject in one of the Iocsl languages,i.e. Swedish or FiDnish-they were to be accompanied by a trar)sla_
tion into Russian.
Art. ? was a formidable articl€ supplementing the Russian Penal
Codes with a new Article 1423, caling for punishment of such
ever faith, provided that
36. FFS 1910 No 45, Las @g o.dnbsen fo! utftudande av Finland ber6.ede ldsar
av atlmiin ritsbetydeke.
3?. S@lj;s dv rinlsd b..6rede lagd @h fdro.dnirgar av sllmiin riksbetvdeb€.
3a. Cnll€.tiotr of Iam vol. XV
dh f6rordninge
HrxcERsrRoEM aND FrN'LAND'S STRUGGLE loR L^w
Finnish governmental offi cers
who deliberately impede the application of the Law on the Equaliration of the Rishts of RGsian subject! with tho€e of citizens of Finland
Penaliies ran from a hearry fine to dep vation of lib€rty for a
maiimum of one year and four months. According to the Act, furthermole, prosecutions were to b€ entrusted, not to the authorities of
Finland, but to the Procurator attached to the Dist ct Court of St.
Petersbourg: the judges of inquiry should belong to the same Dist ct
Court; and the same DiBtrict Court was to try and sentence those accused unde! the Act.
The Equalization Act wa8 to enter into folce in May 1912.
On July 1, 1912, a Russian subject named Ivan Michailovich Sobetov
deposited with the Magistrates' City Court of Viborg his declamtion
that he intended to open shop in Viborg dealing in game and meat.
While normally he ehould have tumed to the Govemor a-sking for a
permit to engage in the trade, he demonstated by ma-king his declaration to the Magistrates' Court the impact in Finland of the Equalization Act which eDtitled him to the same procedure in Finland as
the citizens of the Grand Duchy. The City Cout magistrates refused
to take cog:nizance of the declaration. By decision of July 3, 1912,
Sobetov was refered to the Covemor and the following opiDion was
relied upon:
since what is provid€d for this mattzr in the Act for the Resulation of
Trade of March 31, 1879, ha! not been rcvoked o. .evised in due o.der,
it still pr€vails with lesally bindin8 force; and consequently a document
that is bei.s submitt€d on othe. grounds must be reject€d.3'
von Pfaler, the Governor, informed Se,'n, the Governor General,
about the decision ol the magistrates in Viborg, and Seyn sent
the information to the Procurato! at the Coud of Appeals in
St. Pet€nburg.
On August 28, 1912 a Surogate Procuator and a Judge of Inquiry, Messrs Popov aDd Sereda, arrived in Viborg from St.
Pet€rsburg. They asked the Viborg police to bring before them the
thrce members of the Magishat€s' City Coult who had signed the decision of July 3, 1912, i.e. the Mayor Fagerstroem, the Filst Assessor
Palmroth, and the Associate Assessor Lagercrantz. The magistrates
in question however refused to submit to sny such inquiry except to
39. A Fren h veEion of the Act lo. tne Regrlation of Tnde of Mech 31, 1879Loi finlandaise du 31 m& 19?9 su le mlm€re .i l itrdutrie b prcvided in the d€
@entation mn€: to CNp
,
Ia r6ista!@
l6gsle en
Finlsnde. pp.
110
i
Ch.
III/The Monunents to
CoBtitutionalism
49
asset their ght not to have to answer for their actl but in a lawful
court of Finland. The Russians then sent the Viborg police to arrest
the magistates; in fact, Mayor Fagerstroem was seized in this way
while presiding at a court session. Having thus been brought before
the Russians two of the magishates were released on bail, but the
third one, BrutuB Lagercrsntz, refused to pay bail, maintaining that
the law ol Finland knew of no system of bail! He wss then subjected
to a new arrest decision on Sept€mber 4, 1912.
Mr Lagercrantz then submitted a complaint to the Viborg Court
of Appeals in which he charged the Chief of Police, Mr Pekonen, with
unlawful arrest and requested that he himself be immedietely
releaEed.
The Viborg Court of Appeals decided to consider this submission
iD plenary session. It was held on September 5, 1912, and following
the Swedish procedulal custom set out in the Code of 1734, its deci_
sion was formulated by the youngest member of the court, in this case
Johan Fredrik Selin. The decision which was delivered the following
day ordered the release of Lagerctsntz
if there are no other r€asoB for teepins Mr Lagercrantz in p.ison than
those which have now been mentioned.
The complaint against Mr Pekonen, continued the decision, should
be
tumed over to the Office ol th€ Advo.at€-Fiscal for such action as the
case may ..I for.
In the minutes of the plenary session, however, the President, Mr
Malin (who had been one of those being recruited by Bobrikov to fill
the places of the dismiesed judges of the Abo Court of Appea] in
1903), made the rcservation
that in his view the opinion of Mr
Mr
Pekonen should be coDsulted beforc further action was taken on
Lagercrsntz' complaint.
The release-order of the Viborg Court ol Appeal was in due order
sent to the Govemor, von Pfaler, but von Pfaler refused to act, in_
voking his oath of allegiance to the Czar.
The Court of Appeal then met in a new plenary session on Sep
tember 9, 1912; it was decided to remit the file of the case to the
Procurator-Fiscal of the Court for such action as it might medt, ful_
thermore the Court of Appeal d€cided to b ng the matter of von
Pfaler's refusal to the attention of His Impe aI Majesty by a re_
spectful submission, sign€d by all twenty-four membels of the
Viborg Court of Appeal.
The complaint over von Pfaler's refusal was then sent to the
it.
The members of the Magistrates' City Court meanwhile were
Senate in Helsingfors, but the Senate rejected
50
H^EcERsmoEM
FINL^ND's STRUGGLE FoR
L^w
^ND
brought to St. Petersburg and charged before the Third Chambe! of
the Dist ct Court of St. Petersbug with having violated the Equali'
zation Act, 1912. They were sentenced by the District Court, Mr
Kud n presiding, on October 23, 1912, pusuant to Art. 1423 oftle
Russian PeDal Code (as amend€d by the Equalization Act), to 6
months in jail.
OD November 4, 1912, the Governor General of Finland wrote to
the Russian Court ofAppeals in St. PeteNburg requesting that c mi
nal proceedings be institut€d against the memberB of the Viborg
Cowt of Appeal. In St. Pete*burg, howeve!, people werc less than
happy about the affair. After all, the Vibory Court of Appeal had not
refused to appry the EquslizatioD Act, but only refus€d to recognize
its legal basis. It was considered to ask the Govemor Genersl to call
off the whole opelatioD. Then, however, the Vice Chairman of the
Senat€ of F'inland, Mr Markov, belonging to the party of the Old
I'inns, wrote and requested that action be taken egainst those
showing disobedience to the Russian Las,. The Council decided to refer the matter to the Department of Ca-ssation of the DirectiDg
Senat€, an idstitution with the ght to lay down dtuectives with
binding int€lpretatiom of statutory terts. By a decision of November
l2l25, 1912, the Department of Cassation issued a binding directiv€
to the effect that the penal provisions of the Equalization Act also
covered the refusal to recognize the legal basis of the Act. The criminal proceedings continued.
On December 6, 1912, Mr Youryevich, a Russian judge of inquiy,
ar ved in Viborg to commeDce proceedings against the members of
the Court of Appeal. All members refused to appear befo* him except the President Malin. A few days late! a troop of Russian police
office$ arived charged with the bringing by force of the I]lembels of
the Vibory Cou of Appea] to St. Petersbutg. The 23 app€llate
judges were sent there in groups of six. Itr St. Petersburg they werc
offered to be set free on bail. Most of them took advartage of this
procedure but two of them, Mr Nordgre, and Mr Alexaider B rnou
refused and remained in p son.
On January 27, 1913, the tdal of the judges of the Viborg Court of
Appeal started in St. PeteBburg. All defendant€ were sent€nced to
jail except the President Malin whose se ility now paid off in aD
acquittal.
The following ercerpts of the Russian judgement wil be helpful in
assessing this remarkable proceeding, the transtation into English
being based on the FreDch version s€t out in the documentation annex of Caspar's book
ra
rAsista.nce lbgale en FituLand.e:
Wherea! the laws of June 1?, 1910 and January 20, 1912 have been
Ch.
IIIlThe Monuments to Cot*titutionolism
51
sanctioned by His lmp€ al Maj€stv and have beeD Eomulsated in accordance with the proc€duie in force;
qualified a
and wherre thi nenbers of the Court of App€al beins
i,,aes outd nor ha,e beeE isnoraEl of the mnl,enl's and the purpose of
iiii. r,*. *t'i"l invowed tiat all lai\'s ot Finlabd ontradi'rinB them
were
- abrosat€d,
ii fonom:
under the
ti" reiusa u tm defendants t apptv these lawsepacitv
of
tlev *ere nol binding upon l.hem since in theiJ
"*t"titttt
[eins rinnish iudees rt"v on]v conld applv the lam oI Fidand tbis re'
irrat
rhe pultios into force in
of rhe eeneral imperial law Ehich was crea[ed tor the purpGe
oi"quurii;^e tt'-" ;gttt" ol Russian subjecB with lbGe oi orber Finbish
r""J.hows rt'i 6nae^"i in them to iopede
ri.i,nd
that the decisioE were nade with a view to Iltake more difficult for
t}le Russian autho ties th€ exercise of their functions;
crr,not Ue conl€snd thal mainlairing a onvicrion among rhe
popJation thar rhe lam which were qeoted ac'ordins l,olhe pio(edu€
ttre ta* or,lune 1?, 1910, cou]d not be applied in Finlalld'
onstitules an illesal and iffdmissible inkrference with the meaures
iA[ aow" i"
*tii t''.t'" cti"iotpoti.e
and the Goveroor accordjng to t}te Equali-
with the decisions of the Judse of lnquirv,
an inte erence which the Directins Senate bv its decree of NovemUe. zO, rSrZ ha" decla.ea b constitut€ th€ violation contf,nplsted in
Art. 1423 of t]rc Penal Law.
The members of the Viboq Court of Appeal were sentenced to
the maximum penalty, deprivation of liberty for l year 4 months' The
Russian Court relied i.a. upon the following reasoning:
because of their desr€e of cultue, their premeditation and their official
oositionwhich obli:sed them in tl'eir capacitv ofjudscs r'o conrribute t,
ihe raintenarce oi rhe absolule inviobbilitv of Ibe lam Phich were
sanctioned by the Imperial poq'er while remainins obedient t' aI the
i-"i"i"*.itt'" tar€ ol Ju;e 17, 1910 snd of JanuaJv 12. lel2 and
iakine actior asa;nsr tlo€e prrsons who were ubwilling lo obev thesc
la*s.ln coosequence of whi.h it would have been their dut, lo pav no
zation Act as wel
as
he€d to the requests made by Laserc.antz contrary to lew'
5,
THE KERENSKY MANIFESTO ON CONFIBMING THE
CONSTI'IUTION OF THE GRAND DUCHY OF FINLAND AND
FULLY IMPLEMENTING TEE 3A}18,1917
Asain. nobody familiar witb the ways ofjudges and bureaucrals can
fail to be impree"ed by these judges of the Viborg Court of Appeal in
their mome;t of huth. Again we see judges of Finland with Swedish
names sac licing as something self-evident their offices and incom6,
indeed their very futures, in order to stand up for the abstract p nciple of formal legality, meaning that a statutory provision cannot be
Iawfully revised ot revoked ercept in the same mannei as it was once
H^EoERsmoEM
^xD
IINL
ND's STauccLE roR
L^w
crcated or in a msnner that is coNtitutionally supe or thereto; in
their view, the Comtitution of Finland was the highest expression of
the Law of finbnd and they did not rccogDize the Czar of AII Rusias
as higher. In this way, by standing up for the Law for the Law of
Finland thet sacrifice becaae one made for the sake of FiDlald.
With an ounce of criticism added, their positioD has been called
oDe of'paihetic legalism'. Indeed, it was pathetic because their
struggle looked so hopeless.
The Law for which they were s,acDlicing themselves and theh fututes was already in the process of being eroded by t}le new ultra-
democratic Diet witi its strange ambitions. Ideas from Antiquity
aboui the wise law-giver, a Solon, a Lycurgu, had no place in this
body; it was a legislating body of a new tpe staffed by politicisns
rather thsn by wise men of the law: its cleim to fame was to be the
monstrous Prohibition Act, 19174 which for more than a decade wes
to set its imprint upon the legal life of Finland until the p€dod finally
was brought to an end by a plebiscite in 1932.41
With all their Swedish names the judges of the Viborg Court of
Appeal had every reason to believe that the expe ence of 1903 would
repeat itself and that others would sooD be found *illing to lill the olfices they vacated.
Indeed, if it was a pathetic legalism that these judge3 pursued, it
wa-s pathetic in being a heroic tagedy.
All the more miraculouB then, that the struggle did not end in a
tlagedy. On the contrary, the sacrfice was not lost but turned out to
be both formally vindicat€d by new legislation snd furthemore to b€
recognized at the international level 63 an import€nt contribution to
the new independent Finland that emeryed from the turmoil of the
Gr€at War.
40- FFS 19U No 29
41. IFS 1932 No 45, A compoison with E€to.ia @y however th.ow a not al
tog€th€. negaiive light on the Prohibition Movem€nt the following quotation is taken
fmm Hmpden Jachon, Estonis, 2nd ed., London l9!8, p- 121:
The only new orgmizations which e€m€d D.ohising in th€ p&-qar yeus
w€re ih€ Tenpe.B@ S@ieti6, Th@ pl&yed a surprisingly rignilicut psn in
tle nation.list moveoent. On on€ pl e th€y repEsented r cotrsciou atiebpt
on th€ psrt of ih€ Estoniar p€ople to improre themselves-a ralization ttst the
dar4 ehen the only B@pe fron the unbe&able colditions of life l.v in druken$ were over. ed th;t Lbc time hsd mme b prepue by ahtir;e for t[e
@ming stluggle for poPer,
In Finland it w3 the o.ganized lahou moveoent tLrt gdve its suppo.i to tle de
mand3 of lhe iehp€rmc€ mov€ment In 1899, the S@iar& pa'ty included tlE denmd
for prchibition in its pro$uhe s a nEessory r€fom for the uelioratior of th€ ondnions of th€ worti.s cl@. As a re.ult of th€ General ShiLe {1905) the t€mperu@
movement tbew its eeight behind the Sdiarists' d@eds for votirg reforbs, This
brousht the two moveD€nts into a Lind of sllidc, rddtins in the Diei of Finland
unalimo$ly adopting the Prohibitior Act on Oct. 31, 1907,
Ch
llThe Monuments to
Conatitutiondlisn
53
Th€ lesislative vindication followed the Russian revolulion of
March rgi7. when lhe Czff abdicated, recognizing as his successor
the more ot less liberal Provisional Government Latel events may
have blinded today's people to the significance of the March Revolu-
tion, but et the time it Beemed to reformels of most penuasioN to
promise the realiz&tion of their fondest ambitions A spate of reforms
poured out of the Tauride Palace.
Durins the firsl several monlbs of lbe Provisional Government s
lesblative pro*i"*"""lt liberal leaders curied oul a, ambitious
social and ad
,.*" rt"t o.of.unatv aftecled the csisting polilical
thev- rerurned.to
i'i"i"ti"ii',i "'s-;"ii"" or Russian socicrv Thus
bJ abolishins
reforD
rhe
I864judicial
ol
t"eut
order
til".a;"ail.
*J
lhe O&firans, special courts ed discriminatorv nat'tonalrlv od rerr
"1",,"
l",i"r.rl.n'
*
polir i"rt prisoners se re granl ed a m neslv and such
freedom o't speech. prees md assemblv sere srearlv
'i
b.oadened in scop€.4'
"rilir"iit""
''EveMhinq,' Kerenskv lthe new Minister of Jusiice) said, "thal
generatio;s oflhe nussiar people had dreamed abo'rt during their
age-long struggle for freedom. righl and justice sJas given at one
In thi sa-e wav there was some justification for Lenin's re_
"i.oke.it
maik that in the summer of 191? Russia was the fteest country in the
world.aa
Out of this curreDt from the Tauride Palace thus came also
Kerensky's Manifesto on Confirming the Constitution of Finland and
Fully Implexaenting the Same.rs
The lesacv of t}te Empire {as as intricale as Lhe solution offlered bv
tr'"
.,itii8 iJgi"*
*pern
were orren nairelv
simple
Lasr and
"t i;u€ of lhe accenluared alpirations ol rhe na'
from lemt-wa: Lhe
within
the Empire, especialv in the so-called border
lionar ninorities
ir"J p.",i".*, which ureenrlv demanded auronomv or complere
fu
independence.6
The non'Russian nationalities s'ho demanded their longsought
autonomy, now received a s}'mpathetic hearing. In the govemment itself, the new Justice Minister, Alexander F I(erensky, as early as
Ma;ch 19, 191?, publicty proposed selfgovemmeDt for Poland,
Finland and Armenia.rT
p'
42. Rusiasince 1801. The maling ofa new societv, New York Univ Pre$ 19?1'
4361.
,13 H,mDden Jaclen. Estonia, P.12?
ai .r r'w.***4.
22A
E"aurane md Endea'our. Russim Hisrorv I8l2 l97l' p'
45. Manif6t dsAelde belreftande av storfustediinet finleds }onstituiiotr
sant on detu.mhs_brinssde i des fuUa tilliinpnins, rrs 191? No 20'
,16 M,zour. Finland bets€en East od Wat, p 38
ai c.l^ S.itt'. .t,.. r1. nrssiu StrusslP for Poscr. l9l' l9l7'ASludvorRu
sian Forcisn i'olicy Duiig rhe Fifl wo,ld war. \ew York 19i6. p' 471'
HaEcERsmoEM aND FrNL^ND s STRUGCLE roR Law
Although both the bou.geois and social parties in the cabinet
asreed that the oppressive nationality policy oftsarist Russia should be
modified, they differed on the desee of autonomy, that should b€ ac
corded to the mtionalities of Russia's borderlands. In sene.al the bourseois politicians in the cabinet wished to arsuIe th€ central sovemment
some form of effective coDtrol over p€ pheral regions and therefore
were less wilins than the so.ialist! to p€rnit minority nationalities to
establish aD ind€pendent position for them!€lves. But both liberal and
socialisli. politi.ians asreed rhat concessions should be made to the
special wlshes ofFinns ard Poles.s
Among the measures tsken by the Russran Provisional Govem_
ment was therefor the granting of independence to Poland (which did
not seem to the Russians to be a great sac Ece since Poland then was
occupied by the Germans) but Finland (unoccupied) was mercIy
$anted autonomy.
This implied tlrc revocation of the law of Jure 1910, a! well as other
repressive legislation concemins the Duchy of Finland that had been
promulgatrd durins th€ adninistration of Sto\"in and dudns the few
yeals fotlowins his death . . . . A political amnesty soon brousht back
nary exiies who had suflered ir past years on account of their political
views and opposition
to the old regine- Amons
these was P.E.
Svinhufurd.a'g
Once more, the belief in the Law had thus been miraculously vin_
dicated. Moreover, the belief substantiated by the healy sacrifices
made by the judges, turDed out, soon theEaJter, to be an impotant
cont bution to the sovereign state Finland that emerged from the
October Revolution. When the Swedish population of the Aaland I-slands on August 20, 1917, by their del€getes at Finstri;m decided to
appeal to the King of Sweden for the rcturn of the islands to Sweden
and finally managed to b ng their case for self-determination before
the Council of the newly created League of Nations, the Council entmsted the matter to a Commission of Rapporteurs. One of the issues
to be dealt with by the Commission was tllat of Finland's right of sov_
ereignty over the islands. In Stob?in's Russi6ed Grand Duchy, had
there been an,'thing left of & separat€ state of Finland? In their Re_
port to the Council which Repod on this point p@ved decisive, the
Rapporteurc
lind the Grard Duchy of Finland was an autonomous stat€ under the
Russiar resim€ with the attribute of sovereisnty, except the direction
of it! forcisa poticy and national defeDse, with clearly defined frontiers;
that thoush there were grave violations of the trinnish Constitution by
Russia, yet, a usurpation is .ot valid unless it i, complet€ and recognized by it! victins, ard that Finland did not subni. snd ultimat€ly
the Xer€nsky Govemment recognized her autonomy;that it was an au-
,la. Thaden, R@ia sin@ 1801, p,442
49- Muour, Finland betw@n Easi md West, p. 39
Ch.
III/The Monunents to
CoEtitutiotuIism
55
tonomous Finland, which lat€I prociained iL! iDdependenc€ snq beinst"ad of dep€ndent state, which the soviet
@
""""."ie",
Governm€nt of Russia recoslized
t
*-" "
6.
WHA'T BROUGHT THE MONUMENI:S INTO BETNG?
Heroic epics are rare in law. To the world at large, what happened in
Finland iooked stralge. The more cosmopolitan amoDg the contemnora-rv obeervers earlv fell lhat [hP path was gel.ling loDesome 'The
lmoathies ofthe ereat cullural world we had gained. though at times
we mav hrve been fould to be a bit monomaniac" srot€ e g Annie
Furuhie[o.'r Westermarck phraBed his obsewalion a! follows:
ln Finland we laid everv skess on t}le lesal side ol lhe Tzark pro(edure. ed it was. of couse, the ooe and onl) unassailabie point in ou
case r.hat we ouselves could brios fona"d in delence of our case' But
.*v peoplilooked at the mau'er smewhar difi" r.i"lr,
""-"i""
r"mnrlv: Thev
had eownac.lr;tomed to feel t}6t there was Dol ahvavg
,.* -'',"r, *ii-"eio te olaced on the promises ot monarcbs' and a!io
ru",,"a"' l s io;erisl sord after his 'ooquesr or Finland
'""i"a"
re.asonablv be
ritrii*av ," -" *'ta srriouslv ioasine lbar it mishr
* tinaioe o" o1l his su.cessoE in the far fut$e
6'z
"oniia".a
There is more to this than meets the eye. Behind it all there also
hides a kind of preference for what is glorious and daring, for the bril_
liant and the stiiking, a preference that once was believed to go with
the particular Swedish mentality.
ihe locus ordinaius in this kind of discussion is a passage in
Runebery's poem about Count Johan August Sandels (1764-1831),
the Swedlish-general who had made a tuce with the Russians agreed
to end at 1 p.m. Since the Russians wele one hout ahead of the
Swedes, they happened to recommence the hostilities et nooD
swedish time, th;ii Russian clocks showing 1 p.m. The poem desc bes how Sandels sits it out undisturbed on his white horse Bijou,
Russian bullets flying everywhere nearby, weiting for 1 p m SwediBh
time. Runeberg depicts him in the poem in the following wav:
He never once mov€d, he st od there on hish,
The sahe s before in fuU view.
His brow was urtioubled, and caln was his eve,
He shone on his sallantBiiou
And he mersued the Russians io shouribs pursuir.
As they suryed toward the batterv's foot
50. Grego.y, "The N€uhaliation of ih€ Aaland IslMds," r7 Am' J'
6q ll923r
(itslG
added).
Int L
Annie Furuhielm, Den slissnde omn, HclsingfoB 1935. p 264'
52, Edwed Westermuck, Memo.ies of Mv Lite, Inndon 1929, p. 153t
sl.
63,
ai
H^EGERBTRoE
^xD
Frrir,AND's STnuccLE roR Law
Somebody once explained to Runeberg himself, so the story goes,
that a critic had found his Sandels figure to exhibit a broourd, a
forced display only. Far lrom repudiating this characterizatioD
Runeberg is said to have repliedr "But Sandels is Bupposed to be a
Swedish lieutenant." In a similar vein, another observer-Alb€rt
Nilsson-has referred to the "preference of the Swedes for what is
glorious and da-ringly adventurous, for the brilliant and the striking,"
adding that "this leature in the Swedfuh national character is masterly reproduced by Runeberg in his poem about Sandels, the
Swedish general who plays with danger in the dare-devil fashion and
goes to battle ss ifto an adveDture.. . . R(meberg has had a keen eye
for the often a bit empw in the Swedish bra!ura."s3
Certainly, an ounce of this may be dfucovered iD the exchanges
that took place in the Courts of Appeal iD tieir momeDts of truth.
And that was hardly uDnatural Of couse, the analogy is daring, but
it may explain why lawyers in Finland were almoet carried away by
the idea of Law. The Struggle for Law was the &eation of the leading
Iawyers of Swedish descent. Their formidable enemy, Yrj<i-Koskinen,
the pure-Finnish appeaser and compliant, denounced the whole
EDvement ali a Swedish clique wagging a Finnish tail. Ever since
their childhood, these Swedish lawyers were iDlbued with the
Runeberyian brand of patriotism. Furthermore, the most prominent
meD of this guard were all independent land-owne$ and held more or
less stable positioru in society. They had been formed into solid snd
independent characters. Their constitutionalism was built on, above
all, natioDal baditioDs going back ultimately to the law-dominated
society of the Provincial Laws as it had been lepresented to them by
Johan Jacob Nordstrdm (supra) in his w tings.s
The moment of tuth was at hand in many ways. The Swedish ere
in Finland wae coming to a close. The political position of the
Swedish population was being eroded. The Swedes had been fortified
in tvro Estates out of the four in tlle Diet: the House of Nobility and
the Estate of the BurgheE. Dowtr to 19U, peBonal ability was re,
warded by the Czam by the Fant of nobility, and in that House, consequently, many ended careem which hsd begu ir quitc other walks
of life. I'he pattern was that nobility oft€n followed as a direct result
of promotion to high judicial or academic office.s Although with an
53. Yrj6 Hnn, Runebergsg€stslt n, Helsine{oB 1942, p. 180
t
with futher .€f€r-
54. B€rndt Federlgy, R.A, Wrede. LstdassMne, dh ieitakampen 187? 190,1,
HelsingfoB & K6perLann 1958, pp. 41 ff
55- SoD€ 100 fmilie sere nobili2ed durin, the RNis .ul€ of Finldnd. Anong
those nobiliad whe! Cai Nikolai II scended to th€ thmne in 1896 was Prof€sr C.
C. Estluder, ind€ed ihe l,!t professor to be so re*ard€d, See P.O. von Tiime, Firlrnds
RidddhE r81&191a, HebinsfoB 1926, p.220.
Ch.
IIIffhe
Monuments to
Cottstitutionalism
57
ever-slimming morgin, tlle maio ty of the uban population was
Swedish-apeaking down to t}Ie turD of the centurv.s-But all of th'
was swepiaway by the parliamentary rcform, deoeed by th€ Cmt in
the wake of th; events ;f 1905. Th€ new Diet wa! flooded bv people
lrom the rural and the industrial prolet€riat they were overwhetn_
ingly of purc-Finnish stock. Thus, the power of resistsnce of the
Siedish population was drastically reduced. What was left of the
otce 'Swedlh histo cal museum' was nothing but a beleaguered
Swedish minority with little hope of survival
Thus the Swedes might have had second thoughts 6bout the
wisdom of once having helped at the qeation of the pure_FinDish nationalist movement Benevolent Swedes had in trhe early 19th century
helD€d Lo crea!€ a Finnish language out of the scattered dialects pre_
vsiiing until then. in t}|e belief that a Finnish nationalism was needed
to corinterbolance the overwhelming Russian presetrce and that the
esseDce of trationalism was a separate language.5? As it tumed out,
what they created was from the start less interested in balancing off
the Russians than in settling old score3 with the Swedes, iust like the
simultaneously awakening Estonian Dationslism wss less preoccupied
with the Russirn mastels than with settling old scoles with their old
anal immediat€ masters, the Baltic Germsns.s The shock expelieDced
by the Swedes when the truth simmered down among them certainly
Baale for second thoughts Even such sn enthusiast for Finnish na_
tionslism aE Pmfessor Wernel Soderhielm who had his two eldest
sons educated in purc-FiDnish schools, decided uDder the impact of
the shock to have his third son put in a Swedish school.
What added to the desperetion of the Swedes in Finland was their
isolation. We may look at the dlama as one of so_called 'finlandi_
zation' upside down. "Helsinki can defend its independence precisely
because West Getmany and Italy have not been 'Finlandized'," it was
Dut recently in a faloous editorial in New York Times covering the
conditions of today's Finnish success.s The Estonians could gain
56. The Swedtuh*peahu perentss€ figu!6 in 1900 in ih€ three major distici!
se;e a9. 2a od 64. resp6riretv S* Bidras
iiriE"La" Orn"i"it" Srti"t-,k, vl, B€rolk inssslarrstil 't5, Finlmds FolLmiinsd den
31 Decehter, 1910 (e!li!t r6tubli.sdnN KrkobiiLer), HelsingfoE 1915' pp'
r'r,r,.a. AL. ma eii,,;.bors.;;d
vM
124-125.
si. "n te ri""l"h pople ig not awalen€d lo a miional @nscio8n6, it will be
Russil'ied. A;ni; Fuuhiel! Fport3 her ucle ss}lns. olt Fmhielh. a
C"i"."l in Ru"im *nice .ilh a pan itr lhe R@ids queuins the Poush PbeUion ot
i86a. She adds: 'h wd rmn this poidr of view ln,] he judsed lhe M lioM] aw8]'ntu8"
h.l"i*I.
See
Miinnbkor @h iiden, H€lsinsfors 1932, p 330, cf p. 332.
5s -I5€ odd thihs abour th; nat ional .qaL.ni4 E6l,onie mlioulim of 1857_82
the Rusie Stlt :itrsofar s n s6 I'velled
ir"r ii*r. nor t",itt"a
**
*r."", ir **
leveUed
"sainsr th€ Ceman bsom "'': J'
s8;$t
Estonia. lindon 1941,P.
114
59. As p€r Inte.@tiondl HeEld Tribune,5 Feb 1982.
'saimt
Hampd'n Jackqon'
HAEGERSTRoEM AND FINL^ND'S SrRUccLo roR
Law
their independenee at the moment when their blood'cousins, the
pure-Finns, were not concenhated under the leadership of eppeasers
and compliants on keepiDg the Russians happy, but followed the ac
tivist line.s Similarly, the Swedes in Finland saw little or no hope
when in Sweden proper, the p.evailing attitude agaimt Russia was
fearful if not outright submissive. In the eyes of e.g. Professor Hautd
Hjdme, a renowned scholar, supporting the Swedes in Finland came
close to a moBt unwise provocation of the Russians s,hich any
Swedish government must carefully avoid. As the First World War
drew closer, that attitude spread. The response of the Swedes in
Finland was heroism.
Not everybody of course was inspired by heroism. But the example set by the judges in 1903 and 1913 made it easier for the young.
In the memoirs of Emst von Bom (later, the Minister of Justice of independent Finland and indeed the one who signed the Bill for the
abolition of the infamous Prohibition Act) one may read how the
young judges in the city court of Heisingfors outmaneuvred their
elder colleagues to be able to render, in thei place, the judicial deci'
sions which would send themselves along tlle path of the judges of the
Viborg Coun of Appeals to the Kresty jail in St. Petersburg.6t Knby's
insinuation that the "diminution of career proepects" might account
for "the growing sense of alienation and pessimism of the Swedish
student body'{'z cetainly overlooks the impact of the Runebergien
spirit.
Heroism appealed to the young. Many became activists in response to the Russian oppression. "Activism did not attract many
Finnish-speakiDg students, especially in its early da,'s" wrcte Kirby:
"Activism q,as in the general the response of the Swedish speaking
student youth. . . . "B And he proceeds:
(A) nilitary victory for Gemany ov€I Russia in the Filst World
War was deemed to b€ to Finland's advantase, and it was on Germany
that the revived activist mov€nent now pinn€d its hopes. Early in
1915, asreement wa! reached in Berlin between the FiDDish activists
ard the Geman high command for a number of Finnish volunte€B to
.eceive mititaiy trainins in Germany. Sone 2-000 Finns iu all received
such training afte. a hazardou udersround elist fron Finland. Althoush the volunteers came from all walks of life, a disproportionat€
nunbe.were Swedish-speatinsuniversity students.&
60. On the E€to.im Liberatio, Wu, see e.s.
B@l<, (The Nordic Pres, New Yoik 1953), pp. 24
61. E.mtvon Bom,Iama&hinnen,
der, Elva etionden ur I'iilands historia,
62. Ki.by, Finhnd in the Twentieth
63. Kirly, finbnd in the Tw€ntieth
64. Kirby, Finland in the Ttentieih
Vilibald Raud, EstoDia, A R€ferene
Il
H€lsingfors 1954, pp.41fft cfBernh.
IV, 1908-1917, p.
811979,
Century, London
Century, pp- 37, 36.
Century. p. 36.
!,
37.
Estl
-
Ch. III/aIhe Monunents to
Conititutiodalism
59
In hi! meDxoirs. Westermarck touches upon his affiliatioD to this
activist movement, the Jagar-mooement.lndeed, he reletes in order
to conhadict it the following rumour
I
heard, amonsst other thinss, that one of the ladies of the tof,n
rones s the leader ot
the lJasar-]movement-ar in$edible exasserstioD not at aU kindlv
hed.
ha tramcar.;oint€d De out in tro measuJed
He tdes to set the record shaight:
As receds Ewer.l belonsed to a smallcir.le ofolder men who had
t *o,i to. *" tib;radon or our rcunuv in conne'rioo with
--li""i
the World War.s
The effort for the freedom of Finlald had enbred upon a n€w
nhase. ln SlocknolD I had bet both Gumberus and Wetterhoff who
irad iust come lhere to report to ou felloq.ountrlten the rAult of
couse had orisinallv
it"ii"*l i" G".ma"v. ihe military taininswere
mealt to last no
and
studeDts
hundr€d
bee intended for two
morc than four or five weeksi but the Finland Connittee in Berlin' ard
more s@ciallv Wer.lerhoff had Ioarased to malie il possible for rhe
ut l-ockstf,dt md coniinue their trainins b'vond
vou,s .j"n to
i".,i"
Subseouentlv il was arransed rhst two lhousand
Finlandc6 should be accepled and rbe courses last ror a 'onsiderable
ii,t-ouioa.
was entirelv the vouDs people's busin€s€.
but "the old gend;meD" saw to the financB, $'hich was no e'sv task in
the beginnid, when the Jrtgar Doven€.t wa! ar]'thins but popular in
and among the majo.itv of the older seneraour co"-meriia
tine. The enlistins of recr;its
"irctes
ln Haegemtroem's v&Iue_nihilist terms,Iooking for a legal solution
out of the dilemma of Finland was but an exercise in futilitv So far,
consequently, Westermarck's decision must have been unchal'
leng"oble. But his p"agmatic little exha obsereation may well have
proved too much for his colleague in Uppsala.
Even if it does not lead to the liberation of FiDIand, it nav be of
inestimable value for us to have a number of trained men when the civil
war breals out.s
The hopes he finally pinned to the great work when it all was over
and Finlaad independent sre set out in his speech as a Rector of-the
theD newly created Swedish-speaking universitv in Abo: Abo
Akademi, (mainly the result of p vate generositv). In this speech of
Oct. 11, 1919, he said:
The crear work of liberalion has pul c, Swedish-spealing. in another p;sition lhan before. No lon8er are we lhe permsnenllv
65. Edward w6t€rndck, Me4oriee of Mv Lite, p 267,
46. WBtermarck, Menori$ of Mv Lif€, pp. 264 I Or the old s€ntlemend' 'coun'
cil'. see Bernh, E3tlander, op..it. pp 169f, 191, 193.
67, W6te.mck, Memorie of My Lif€, pp. 265 t
5a. Wesi€rharck. Menori6 ol Mv Life, p. 266.
H^EcERsrRoEM
^Nr,
FNL^ND'S STnucol,a roR L^Iv
suspect€d, the hatfd and the persecut€d politicat agitators that we Pere
duing the petiod of RNsian opprEsion.
Should the foreign policy of th€ Republic be o ented towards tbe
West and on keeping the bonds with Scandinavia, somethins which we
sinc€rely hope, . . . our Swedish languase wi1l be the hidse 9-f the
uitingihe ;utposts to the Esst with the alie! t}le W€sLs
6tle
t
His hopes for a bette! role for the beleaguered minodty may not
have come true.?o But the monuments erected to the Struggle for Law
in respected memory for tDore than a generation tnd
reduced-that is the irony of the mette!-the influence of
remained
HaegeBtroem's philosophy in Finland to a miniEum.
?.
HAEGERSTROEM AND FINLAND ONCE MORE
It is rare that Haegerstroem directly addlessed Finland in
his writ_
ings. He did it on one occasion though, in 1911, the year when he was
made professor ol practical phitosophy. That year he gave a lectu* in
Verdandi, an arsociation of univelsity students of a Socialist inclina-
tion. which was Iater published in the pe odical Tiden. It wes titled
"On social superstitions" ond patt of it was devoted to a discussion of
the theory of constitutionrlism in tlle Bobrikov era.
The speaker in tlle Diet of Pinland once said about an Impedal
conmand, that it was contrary to the lundahertsl laws and, consequently coutd not be bindins, Deither fot Fi.land's civit servarts, nor
foi pdvat€ individusls. This stat€ment Det with strons slmpatlv in
the leeat conscience ol tle Wesl. Il is reasonable [o assme lhat the
sl.a[e;nt really conveyed a certain Deanins evidenl to evervbodv.
Then the question wiu be: How in lact shoutd this meanins b€ ex
pressed? A command is not coisidered bindiDs because it b cortraiv to
the fiDdamental law. What does that nean? Possiblv that there was no
69. The texl of the speech is printed i! the S@dis} veBion of W*ttmd.Lh
DemoiE, see Minletr ur Ditt lia.1927,p. 371 .
?0, Thee hop€s tmed out to be larsety unrealistic. tndependen.e simplv made
r@h for moe anti-S{edish entiB€trt. It immediat€ly iit thG€ d@{dins &ob ihe
Sw€dish*peakils nobility hoping for a Eilitory 6er in pNuee of fmitv tradi_
non. von
iijme
gpeats of
"*vere .ebufr' ("LMbart bahl.s),
3@
I'iDlsds riddahu
1818 1918, HelsinsfoE 1926, p. 271. A selcome depended on lEins Fimish_sp@Lins
(in spit€ of the lact tlst Ceneral Mun€iheib himself, the conmeder in .hiefdu.ing
the ;d and evertually th€ Pr*ident of Finland, ! nan of Swedih d*nt, did mt
speaL I'innish). A.deB Rsnsay co!fides to his memoiE: "To me, qho {3 brcqht up
i; a Sqedish rcishbouhood md who had sp.nt my whole life in ci.cles sp€oling et
.lusively Swedhh wheE a Fimish mrd ws nev€r he.d, hudlv €ven frcb $e *.
vmts, ii muld hlve ben hopels to atiempt, being of enior.8e.lEdv, to bqin to
terD s lususp *hi.h tome ws pcBodllyalien. Rf,slizing rh.t Lhh so'nd be tFvond
mvcspscily, I reiisined trco su.h atlabpl,s ud e. r6ult I sE lored to foEgo eEn
thinLins oi settins e emploltent"; rrAn bamt. till silverhar, vol. 2, Helsi.sfoB
1949, p. 1099
I
Ch-
IIIlThe Monuments to Co stitutionalism
61
coe.cion to enforce compliance? But in such a case the stat€hent
would be less tnan well-;onsidercd. Becace there is no doubt as t-o
where rhe real poser of co€rcion is Po6siblv th,t conplvins with the
Lhe private;nlf,resls of the civils"rvarl! and
rhe orivate individuah: But etpressins such an opinion $/ould.loo. t,esrirvi^ an overlv int€nse imoran.e of tI€ lactual circuntltanes Bv the
coDoand is noi useful for
*av.let us suooo* that ihe Speater hsd indeed put it eu' v in tnjs
w,v: ShouH ahe riehteous in Europe have applauded: No, one Podd
*ri*' trave *onae-rea hou the Diet could have chMn such a substedard reDresentstiv€.
Pmrihlv then. the meanins is lhat in ou case obedience is not pal_
abhle with the inl.€resk of lh; Finnish Mdon? But the coDoEnd was
suDmsed to b€ nol bindinq, simplv becaue€ i[ ws in connid wil'h rbP
ruirianental laws in forcel ln r.hes IawB rhe weal ot Finland bv no
means tales the seat of honour! The po€ition of pow€r t'hat th€ 'Ru$ion
emoeror taq,fully enjoys is evidence enough As a oattf,r ol facl. the
ot the Finnish int€resl. is resulahd bv thes laws-lbe oanner ir
'i!h,
*-l,i"t it .u, be sadsfied. Bv itelt it is the.efore bv no means lhe
hishBt nod. FurtherEore, if tJ'e speaker had appeaied directlv to
lhis intf,rer, ii would bor have alfected oulsiders bur Fith the for'e ot
llupiditv. Be.aue whar Ps in isue $ra! to asen the
;ztiteouiness -to shoq thal indeed the Finnish intf,r'
""inwas in"i.*
ils "i
riehi a! toward! lhe Russian one Certai,Jv. it could nor
lst
then b€ DroDer;stsv mntent withssimple referene tothe sabe'
Let rls nos, run the su'.t"r aroubd snd look al. its po€irive side Evid€trtlv. the statemenl itr quesiion presuppo6es tllat fudamentsl l.0B
i" r^r; rc,llv are biDdins uDon the civil seftanl! ol FinLand and upon
its DeoDle. Birt tben, phai mianins hides therein? Evidentlv nor. s *e
have f6und. thar rhere ia co.rcion t suds mmpliance nor anv usefulness for lhe Drivat€ inl.eresl, nor lhal the inlercsts ol lhe people of
Finland find-expresioo in rhe fr,ndamenld laws: Posiblv tbetr lhe
feelins of beins bound only expresse€ qmpathv fo. these laws being
a comDrooising
i.r
comofed wiuh? No, the relalionship iD issue has a ouch broadersseep
The-laws are supposed io bP valid wirhout coDsideratiotr ot fie more or
less accideotsl syIopot bi6 of private individu"ls lor lhem.
It is evident th;t the question coocerru ar 'ought' in a rnoraheus€,
valid in a seneral eav tor civi.lseNanls and for people at ta4e. That is
to sav. rn- ousht lbal takes prsedence belore ever)'tbing else This
oea-oi in no siv a nrle of wisdom takins int considerstion the in[er$t
of the sinsl€ iDaividual or of the whole. Instrad, it erFesles in itsef a
suoreme ialue. Bur. whar then will fie meanibs be of the bird;ng force
of'the fundamental laws rPfened roi WeU, as a matter ol lact that t}€v
determine directly a suPreme Dor&e for civil servarts and people, Nt€6
of action which are eupieme from a value point of view. And 3o we have
d.ived at the tracl of the idea of the ssnctitv of firnda$entar hws.?l
A bit lat€r Haegerstroem sums up his undelstanding of the con_
stitutionalist phenomenon in Finland in the following way which no
71. HngeBir6n, On
diala
vidsL€pelser, Tid€n 191a, pp. 321
fl
62
H]$GEEStRoEM
^ND
FIM-^NDt
STEUGGLE ToR
LAw
doubt bei rals also lhe character of his audience:
Becau-se
the p€ople of Finland uan.s
t
keep the position that it en-
jolE due to the srrararty of the fundamental la$,E, these becone
sacrosarct in sccordance with haditioral Swedish veneration for law.
Interests in the importance of the monarch or t]rc people as the supreme power factor do convey maje€ty upon them. The int€rests in the
power po€ition of th€ po€se$i.s classes nake the risht of property and
th€ contract sacred and inviolable and so fo{h. Notice hoo the inter,
ests prBent arc advanced by then thus puttiDs theDsetves in the seat
of honourl Like parasitas they cling to, more or le$ unoticedly, sornethiDs supernatual. Wo€ the sacrilesious.?'
So ultimately, constitutionalism to Haegershoem meant that the
constitution dete.mines directly a suprcme value for civil Belvants
and people, rules of action which are supreme ftom a value point of
With all respect, that cannot have been much of a comfort to
those participatiDg in ihe Stuggle for Law in Finland. It reduced the
issue to the motto: right or mong, my country. Could the renowned
philosophe! really do no bett€r than that?
It would seem No. HaegeNtroem's mesaage was that nornmtive
utterances are not genuine judgEents and being incapable of truthfunctional analysis, cannot stand in logical telations to each otherj
consequen y, no questioD ol contradiction can arise. But this way to
lormulate the question was most unhelpful to those engaged in the
StNggle for Law. To the men in the Couts of Appeal in Abo and
Viborg, the message that the contadiction did not erist which had
made them suJfer loss of income, exile and pdson, was singula y
unconvincing indeed. No surprise that, after iDdependence,
Haegelstroeh simply did not exist in the wa).s of thinking that prevailed in Finlrnd.?3
It is puzzling to find that Haeger€troem seems to have refused to
make us€ of his negative snalysis ol despotism. As evidenced in his
pape! "Is Law in Folce a Mrtt€r of W l?" (1916), his po€ition was
that he knew what was no, a legrl slEtem. Had he worked out some
coDclusions from that position, they would undoubtedty have been
highly relevant to the participants in the Shuggle for Law. Had he
done so, eurely he would have found the words the men of t}le Courts
of Appeal of Abo and Viborg wanted to listen to. But he never did.
t
72. HaegeBtrceb, Om s@iala viiblepels€r, Tiden 1913, pp.324
73. Urpo l(esas, "Oh upptomst @h f6rhedlins
hrdomsr.adtioner.,,
eftertt. Rlrrsfilcofch s}tposium."vUpp€€la 23-26 maj lgi?.
IIpFAI*Iotan<ci
Uppssla l9?8, p. 91. Lrnforlunalely, HaegeEtr@m s Fl,lion ro lhe StrusBle f;r Las
seebs to hrte b€€r left out of sisht by Prof€sor A. Aamio when i.yi.g to ealya why
th€ thinking of Haeserstr@m and his suc(tMru ren.in€d atien to bGt of rhe Finnisil
scholaB, * Amio, "Om den finska rattsfilosofin und€. 1900-hret.,' Juridiska Fii.eningers i finhnd Tidskrift 19?6, pp- 331
i.
Ch.
IIIlThe Monunents to
Constitutionalism
63
W6s HaegeNtroem a great philosopher? What makes for geat_
ness among philosopherc? Is it the number of graduate students
devoting their powers of analysiB and writing to the works of on€
philosother? Or is it the 'old boys' network' that sees to it that work
on the thinking of a certsin philosopher is being iewarded with posi_
tion and income? Or is there a more bssic p nciple behind a[ this?
Genius consists, according to an aphodsm ascribed to Hugh Trc_
vor Rope, the histodan, of posiDg questions that time and medioc ty
Perhaps one may put it the other way round: when the
"*
^.r"*"..
questions
i{hich the philosoph€r has formulated become relevant to a
certarn society, his greatness in that society is enhanced. If so, the
greatness of a philosopher is not unchanging. In some lespects it is a
function of changes in society itrelJ.
Did HeegeHtroem formulate the questions appropdate to his
times? Definitely No. Enough has been said about that in this
chapt€r.
But his message came to be better appreciated elsewhere than in
Fintand. Some may still be among us who were students at the un!
veEities of Uppsals and Lund (in Sweden) du ng the 1930's Thev
will confide to you what a shockrng experience it was for them to be
exposed to Haegemtoem's message that rights and duties were noth_
int more than supeBtition and in fact did not exist. All that thev had
been told abouf right and wrong, then, was simply superstition?
Thefu response to this devastating message was to look for the one
single factor in tife that was rcsl and not only superstition. That was
po&,er! So the ultimate effect of Haegerctroem's message among law_
yers was to create a generation of buieaucrats who werc thoroughly
sceptic as to what was right and wrong, but who were naturally sub_
missive to what was power. Gladually, this new type of bureaucmt rc_
placed the previous Bostrcemian one who believed that the Swedish
;tate somehow originated in heaven and found its legitimacy in God
(uio the intricate philosophy of ideas of Johan Jacob Bostri;m).
The new type of bureaucrat was warmly welcomed by the
Socialists whose Marrist ideas of the legal order were markedly nega_
tive. On the basis of their own holy sc ptures they were mainly
preoccupied with law as a force for the destruction of human values
such as individual dignity, equality, and communitv. To the faithfirl
law was p marily a vehicle for the manipulation by the powe ul in
society of the powerless. They paint€d a world in which at every turn
one found corruption and conceslment; in which individuals and
gloups were moti;ated by narrow selJ_interest, by lust for power and
wealth; never by genuinely felt moral vision. The Marxist legacy was
cynicism about human motivation and a dark view of law in society'
iaw was good fo! nothing but for restructu ng of pos'er' Here the
H^EcaEsrRoEM
^xD
FTNLAND'S
STnuccrr roR L^y
pliable bueaucrst was comfortably at home. To this mdicsl anti-
Iegalism Haegentoem gave a kind of philogophicsl underpinning.
Having this in mind, it would seem perfectly natural that
Haegelstloem's message should have meant a $eat deal more to
those who had been willing to yield to supe or force all the time,
than to tho6e who had been willing to set up a fight. HaegeBtroem,s
message certainly made senBe to t}o€e tecruitiDg the 'unla*{ul' Abo
Cout of Appeal before the Resurection of the Legal Order, no less
than to those setting up the War Criminals Court in 1945.
To the extent thrt it can be said that the evolution has proceeded
rather more in pursuing such ideas than in keeping the candle
buming before the Monuments erected by the judges of the Courts of
Appeal ir Abo and Viborg in their mom€nts of truth, then
Haegerstro€m must have become an ever more welcome philosopher.
In this sense he h6! formulat€d the questions thai became relevaat.
Table of Statutes
c€neral Code, u34
(Gustaviar) f'orn of Govement , AnE. 21' 1772
Form of Govemnent, Jure 6, 1809 (Kinsdom of Sweden
only)
Act, Me.h
Guaranly
FiDland)
15/2?. l80S lcrand Duchv of
l8
18
16-11.32
Marifestn on R.uniting th€ Province of Vibors, Dec. 23'
1811
Pensl Code. Feb. 16.
l7
r8& (Kinsdon of Sseden)
18, 18?8 (FFS 1878 No 26)
Act for ihe Rpsulation of Trade, March 3r, 1879 (FFS
l8?9 No 12)
Pensl Code, Dec. 19, 1889 (FFS r8€9 No 39)
February Manifest , Feb. 3/15, 189s (FFS 1899 No 3)
Msnifest Relatins to a New ConscriPtion Act for the
Grand Duchy of Finland, Julv 12, r9or (FFS 1901 No
32
7, 38
Comoiption Act' Dec.
26p1)
48
32
8
9,3?-38
Res$ipt conceming the Call Up to Active Dutv of
Conscripted P€rsonnel in Finland Durins the Yee
190r (FFS 1901 No 28)
Manif€sto on Measures to be Taken for the Resurrection
of the Lesat Order h the Grard Duchv of Finland,
Nov. 4, 1905 (Ftr'S 1905 No 49)
Prohibition Act. 190? (trot sanctioned bv Czar)
65
38
n. r?
21, 31, 64
52n 4l
(Stob?in's) Lsw on the Order for Malins La"E and
Ordinsnces Touchins f,inlard ard Beins of General
Intere€t to the Empire, June u/30, 1910 (FFS 1910 No
45)
46,54
Act Con@mins the Equalization of the Rishts of Russian
Subjeck with Those of Citizr.s of finknd
(Equalization Act), Feb. 4/17, 1912 (inclusive
tuoendment of Art. 1423 of RGsim Penat Code)
(publi8hed in Collection of Lam md Ordinarc€s
Touchins tr'inland and Beins of General Importance to
the Ehpne 1912 No 3)
(Keremky's) Manif6to on Confirmins the Constitution of
the Gred Duchy of Finland ard Fully Implenentins
the Same, Match 7/20, rgu (FFS 19r? No 29)
Prohibition Act, May 29, 19r? OFS 19u No 29)
47,50
51
6,52,58
Julid c.l€ndu (t[iri€€n days hehind th€ West€rn caleDdo in the tqen
tieih century) ws B.d in Bussia util Februsy 1918i @nd.quently statutee ed
.e.olutions issued by ihe R8ian dthoriti€s ..s$dins FirlDd ceied two itate, on€
Note. The
Bwis
and .ne Finnhn
Ind,ex
tuia 2?
6,54
Asiatic 25
n.73
Asiatic arbitrarin€€ 28
Abo I, U n.33
Abo Atadeni. See Sw€dish-speaki.s Asiatic Despot 28
Asiatic mode ofproduction 2?
univeEity in Abo
Asiatic nonenclatue 26
Absolutiststat? 29
Aliatic notions 28
Abuse, erceDtional 23
Asiatic sFtem 28
56
office
Acadenic
Asiatic s,tstem oflandownership 27
Activi$o 58
Autocracv 44
Administiation 32,34
Aziat.hina 28
cseer
3r
AdBissions tojudicial
Asrarian society 27
Bashdad 24
turlcvrsr,HERu^N 8
Baltic Gelmans 5?
Alaska 20
BarhussataD (Stocklolm) 26
46
Alcoholicbeverases
Aaland Islands
A-aRNro,Auus 62
Aldander I {C?ar) 15-16,16-1?,18, BeatB 25
BJ^RrrP,JB
15,32,42,55
Alerander
II (Czar) 35,36-37,42
Al-Enpire lesislation 46
AroI^EUs, M^cNUs J^xoB 16
ADerica, R€volution 18
ADnesty 53,54
"Anger,"Csar's(snev) 34
tumenia ?,53
BJdR&
ERlx
I
5
Bjbrneborydnws
BLoMBERG,
ruBch
6
HuGo 8
BlorrsrEDr, YR
o
BosRr(ov, NIcoL^r
39, 41
lw^Nol'rcr 7,9'
21,28,38,40,41,43'44,46,60
Bondslaves
34
Inde'
68
Borsl (Por.roo)
of
22
Constitution, irftinsement
Constitutionof Fintand 17,52
CoGtitutional 18,39,40
16
BosrndM, JoH^N J^coB 63
Bourgeoirpoliticia$
BrcDwa 5S
Brilliut
55
Byzantine
principle
5a
Constitutionaldosma!
21
15 n. 28
(Roi constitutionnel) 15
18
Constitutional
Constitutional nonarch 15
kins
Constitutional
BRo^D,C.D.2,3
Bureaucrat 40,63
law
29
Comtitutionalstat 15,21,22,25
ofconsoipt!
Call-up
CoNtitutionalism 15,56,167
Constitutionaltutphenon€.on
Constitutionalisis 38,44
Contract 62
Contradiction 4,62
Conuption 63
40
Caprice of despots 24
Career
prospects
58
Cariedaway 56
Cathedne II (Czsrevna)
CEDEUHoLM,AENE 38
Ceylon 29
ChaDcellor of Jultice of
34
Finlard
Cossack8 9,19
Council of Minis&rs,
d'etat
Coup
Chades
Courase
XII (Kins ofSs,eden) r9
Chinoonihi 35
29
Churches in
Citizen
Citizens
Finlmd
CriDean
strussle
Classical
13
altiquity 27
sovem€nt
Empire 47
Collese ofjustice 3{
Comnand 3
54
21
Communication 46
Comnunbm
13
38, 41, 43, 44, 56, 58, 61
Compliants
ConcealBent 63
Co.flict ofduties 4
Vi€.ra
Constitution
3
36
15,28,33
46
Czar, abdication
Ca
of
53
of Russia 6, 52
police 26
ADA JERZY
Cz^RroRYsrs,
Dalecsrlia
16
19
Darins, Swedbh preference
for
the
55
27
Kapital
Declarationofirt€ntio!
LessueofNatiom)
Cong"€ss of
War
Czar 8-9,21,35,40,41,46,49
Doe
Commission of Rapporteun (of
law
m
Czarist
23
Co€rcion 6r
Collection of Lam 0d Ordinmces
Touching Finlmd Beirs of
Ceneral Import0ce to th€
Conmon
31
32
M^iaul3
Cust
47
Cla$ification of
45
8
DE CUSTINE (ADO,-PHE),
r7 n. 33
City Cou.t of Helsin8fors 43,58
Civilwar 14,59
Cla5s
Courts
18
ofFir and
of
President
16
Cheles XI (Kins ofSweden) 19
Chuch
61
3
D€feme of th€ Grard Duchy of
FiDlard 36
Defilition oflas/ 4
Demo.mtic 15
Demo.mtization
Demonicrl 13
Denmark 2
45
D€partnent of Ca$ation, ofthe
Dirstins
16
Senat€ of St.
Pet€mbury 50
Department of Justice, Order
of
43
69
Despotism 3,18,62
Dialects 5?
Di.tatorial powers, Bobrikov's
Diet ofBorse 20
Diet of Borsd, convocstion of
I
DietofFi aDd 8,9,46
Del€sation of the Diet's Special
Complaints Cobmitt e 2r
Diet of Finland, single chamber 45
Dnectives issued by Department of
Cassation, DtuectiDs Senata, St.
PeterBburg 50
Europ€ 18
Eulopern aholuthm
21
Euopeanized officialdon in
Rulsia
35
as
Evanselist, Has€Etroem
13
Eiecution 34
Erccutioner 24
Elile
9,34,62
F^cERsrRoEM, WERNTE 48
Fanatica,HaeS€r€tro€mian 12
Feat 23,24,33
Disciplin.ly measules 6
Dis8race 34
February Manifesto 37
Fenale suffrage 45
Disloyalty 34
Disnisssls 40
I'eudalism
Feudal
leiy
33
2?
Disobedience 33
Final Act of the Vienna Con8xess,
DragooDs 3?
Finsnces of Jasar-movement 59
Finances and fiedit s)tstem of
Doctot iutis honotb cauo 3
Domination. total 23
Duty
DgWt
24
Elit
PER
Finland Coromitt€€ iD Berlin 59
FinlandizatioD 38,57
F inla nds F itrf dttninA s s a n liw
41,17
OLor
2
Emarcipation 26
Emotion 11
Emplolmont 60n.70
EncydopediaBdtannica
FR.
2
13,26
36.4?
finnish
Equal suffrase 45
Estat€ of the Burghen 56
Eetst€s 16,56
56 n. 55
Est Dia 7
E€tlni.n nationalhb
Estoniabs 5?
I',tlical @ncerns 1r
BattdioG
57
36
Fimish nationalism 57
Finnish Navsl
Enlbt€d men 36
Enlistins ofrecNits 59
C.G.,
Fimish
battslion 38
Finnish Chancelery 40
Fi.nishl.rguase 32,36,39,4?
Finnish Life Gurrd Lisht
Ensland 8
English autncracy 29
Esrt^NDER,
Finlard's system ofdefeme 36
FiDnish
34
ENcELs,
32
I'iDland 7,26,28,35,53
Eisht€enth century PeBpeciive r8
EruLdr,
15
Fi and
DrcyfulAffair 7
Dund 45, t6
Duties of Stabs 13
2r,63
1815
Crew!
party
36
40
Finnish shaeshoot€r battalions 3?
Finnish volunt€eE 58
Fimish-speaking students 44, 58
tr'i.st World War 14, 44, 58
Folkete Hw 26
Foieign policy ofGrand Duchy 54
ForcisneE
33
Form of Govemment of 1772 18
Form of Gov€mment of 1809 18
Forslisticintzrpretation
40
?0
Iddex
"Fortress of Finland"
GRorEniELD,ARvr 10
(Suonedlinwt m
Frarce 8
Guaid ofticem 34
Gueds
Freedom of sssembty 53
Frcedomofspeech
tr'reedom
ofunions
R€volution
46
14,32
H^EcEnsrRof,rq
18
French Senator (J^cauEs LuDoirc
I
TR^xBUx)
Ekeldf
Pr. Eddon t-
ANNrE 22, 34, 3a, 55,
55n.51
Adhnal
20
Ceneral
57
n.5?
Ge.€ral Strike, 1905 44,52 n.41
Gener.l system of coNcnption 36
'GeDuh,' 13 (Xarl Me!), 63
Georsia 7
Germar barons 57 n. 58
Gernan hish coDDand 58
Ceman Social Demo$at! r3
Gemmic ideas 21
Gellnans 54
Germany 58,59
GDE. ANDR! 33
the
God
Horde
58
HrinNE, H^n LD 58
HorrsrB6M, K.O. 43
HoHEiY"THAL,LENN^ir 42
HoLuE, O!nER WENDT,IL
19
Holy Russia 35
HolySynod
HoInas€ 16
35
Honorary doctor of philo€ophy,
Uppsala u,12
"Ho€tile t general p€ac€" 9
Houe of Nobility 20,56
11
36
Hydraulicconmonwealth
2?
32
Idelost'oflaw
GdtDbors(Gothenbu.s) 20
Govemental scholaEhip to
Governor Generar 36, 41,47,4a,50
Grmd Duchy 17,19,32
Grand Duchy ofFi.lard 15,16
Grand Dule of tr'inlmd 15
Grand Dule ofMuscoly 29
Grantofnobili8
Crstr€€s amons philosoph€E 63
23
GRTFENBERG, OsxAR,
Gereral
13
Irtrp€ al conmand 60
lnperi6l Guaid 36
Imperial thone ofAll Russia
Inpetiun mundi in stdtu
15
IDcom€ 51,62
Industrial society 27
56
'Great Gsmble', l,eDin'6 26
Gre€ks
U
47
Hungaiy
55
24,63
Golden
Herotum
Hi8tory
Hunmity
Glorius,Swedish preference
for
59,60
1899 8
Hsr-bebaricdespotiBm 28
H^nuNAr R^sHrD 24
Hebinsfon (H"rsiDti) 2,6,9, r0,
r9,44,42,
FunuxJEr,M, Omo,
1,
lIEirscHEN, S.E. 8
Heroic Easedy 52
H^irpus,
FURUHTET-u, J0HAN
AxrL
H&cersfi.,-hl\deet 12
H^c8redrcn, JoH^n 8
Hasue Peace Conference,
2
trundamenktlaw 18,22,60-61
FundameDtal State Lek l5
FURUHTELM,
HERMAN 59
CuBtavie Form of Govemhent
53
tr\ench lansuage 16
tr'rcnch
37
GUMMERUq
20
Indstly
Instinct
32
25
INtitutioff
17,28
Ifttrunent of political control
34
7t
Latvia
InternatioDalAddress 8
Int€rnational
Islands
law
ofAaland
"Law"
13
6
Soisalon'Soininen), Pro.umt
General 42,43
caEer
r
31
Juridisko Fbretlingen i Finland 4t
Juidisko Fbreftineeu i Finldnd
ti&krift
Justi.e
tg
18
Legal consci€nce ofthe w8t 60
L€sal nihiltut 23
l,esat order 23,63
lagal p€ odical, Swedish 35
Lesal validity 4
Lesitinacy 63
Lesitinate rulers
L,MN, VLADIMIR
26,28,45,53
Libe.ty
34
K.S.S.S.
54
Leftist-minded 13
Lesal chans€, regular
JoNEs, RIcH^tD 27
Judges of Finland 31
Judicial 56
Judicial
18,2l
LasyeB 28
Leasue ofNations
Jagdr movement 14,59
Jealousy, sFtem bsed on 23
JoHNssoN, ELmL (nobilized as
7
23
ILYCH
17
'LiDited' sovenmeni
KaRdlen 34,42
K^rcoRoDov, v., Major General
Liihuania
a2
K-armNxa, EUGENE 29,32
K-alrr, LAi^NUEL 11
K^srARL P^ vo 22
IfuRENs(Y, ALEXANDER
F.
KereBky Govemhent
18
Ifu^LMTX 12
LINDE&, ERIX
20
7
Local sovernment 40
Locx!, JogN 29
Lockstrdt 59
Locus otditarius
53
54
KEY, ELLEN 14 n. 26
Kievan society 28
55
ofman 25
LuDENrus, FR. 39
LutheBn faith 4?
Lot
LYcuRcus
52
KinsofEDsland 2r
Pok d r5, r9
Kirsofsweden 54
KingdomofPolmd 15
KnBY, D.G. 58
KL^M], H^NNU T^P^NI 20
Kins of
KorLoNr^Y,ALExaNDn^ 35
Xrestyjail
58
I(iuPsr(^.ra, NADEU D^ 26
KUDRTN 50
KURoPA'floN,
AExxr
Masbtrate
Magiltrat€s'
I
24
Couri
48
M^rrN, ANroN K^nL OTro 49,50
Manifesto quo onte 45
MrxNERrrErM, C^nL Gusr
Gene.sl 60 n. 70
!,
19u 53
MaRxoY, WL., General, Senator 50
Maix, K^RL 13,26-27
March Revolution,
Marlisn
NTKoLANIoH 8,35
12
Marxist ideas 63
Kuropatkin prcject 37
Mexist inclinationE
Labou movement 52n 41
L^cERcR^NTz, BRuruB 48, 49, 51
L0d-oe,neE 56
Languaa€, sparate 57
LarsrEg€ of the ehpire
MAcCoRn-{RcK, GEoFFREY
32
Manists
'Ma€te.s in
22
13
MGcow'
40
Master slave relationship 23
M-azouR, ANAaoI-!
Mediev.l idea 19
G.
36,46
Inde.
72
Men of p8sive Estutarce 38
NoRDENsxiiLD, NlLs ADoLi
'M.i.rn h,ndit'
13
60 D.70
Military career
Military csrcem in Rulsia 20
Militaryelpenditures
Militaly questioN 35
Military seIvice 46
Militarytrainins
59
27
8, 20
of'lisht"
NYBLoM,
18
C.P.
Idea
Occupiedcout.y
32
MoNrEseumu, CH^Rrcs,Louis DE
SEcoND^r, Baron de ta Brede €t
Montesquieu
Y
1a,23-24,
Otricer
33
Meaninq 72
Okhrana 53
'Old bo!ts' network 63
OId FiDns 8,50
'Oid sentleD€.' 59
OLnEcRoN^,KanL
25,27,33
Moral judsment 11
Moral validity 4
Muscovit€ 28
Musmvite noblenen
51
Octobn Revolution, 1917 54
Osden and Richald, ?rrc Meanins
Monsols 29
2
Opala 33-34
Opposition 33
Orenbursian Co€sacks 42, 43
34
Nagaika t9,42
expedition 7
National defeEe 54
Nationalists 45
Nationalize 26
Natual Iaw 3
Natural law principles 21
Naval Cadet Academy in
FredrikshahD 37
N€- York Daily Tlibure 27
NewYorkTines 57
Ne$apapers 7
Nicholas I (Czar) 15,35
Nichlos! tI (Crar) 7.56 !.55
NrLssoN,ArBEnr 56
Nobles 33
Oiient
24
Oriedt l deepot 24
Odent l despothn 29
Oriental influ€ncB 28
Ori€ntal rule 23
Ori€ntat soci€ty 27
Orthodor relisioD 35
OttomanTukey
'Ousht' in
O
a
29
moral sense 61
ord Professor in
Jurisprudsnce 8
P^LMcREir,
Bo
41,42
Prl-uRorn,Gf,oRc 48
Pan'GemartuD 6
Pa.-SlavisE 6,35
Pea8itts
62
21
Parliament
29
20
8
Obedience 25
32
32
Nol,iliatio.
3
Oath of allesiance 16
Mongol Statc
Nobility
North East Passrge
Notion
st t craft
NaD!€n
3
NorurRdM,
MoDsol policie€ ard
MoDsol rule 26
de
K^RL I
Vrr I,Is
Nodh Am€rica 18
NoRRBY,
32
Molsolconquet
J^coB 20,56
NonDsrndM, JoH^N
NoRriEN,ADoLr 8
3?
'Mod€rat€'sovernment
Momrch 3,2r,62
Monastery 34
Mongolarmy
NoRDGnEN,JoEN 50
5,8,
MEL, JoriN SmART
Mob rule 3
EarK, 8,
20
PaBtor
13
ol
Pathetic
lesalisn
Patriotisrn
Peace of NlEtad,
Peasnt
52
56
1721
Practical
19
P€asantry
West 35
philcophy 10
Powe.s of the
1?
Preacher, delivery
26
ofa
13
PERE,H.W.39,43
Predetermined stases of societal
evolution (Marxist dosrna) 27
President of independent
PeBecution
PeBia 24
P.$s
PE(oNEN,VILEo 49
PENN, PHYLLB
KoHLEt 15n.28
Finland 4l
12
PeBian Achaemenid Empire 24
"Persian Letters," by
MontBquieu
23
Czar
15.19,35
Pet€Bburg 40, 58. See olso St.
Pet€rsbuls
P€tiine refoms 33
P€trine Russia 33
Pete. the Great.
YoN P!^I,ER,
TREDiIK
48, 49
Phar.ohs 24
PhilosophiBlsemarticist
Phrtsiocrats 27
12
Rro f,D 29
Place of
Place of the Senete
{HelsinsfoB) 42
Plebbcite 52
PLExH-axov, GEoEcrI 26
PoBEDoNosrsEv, KoNsr^NTIN
PrPEs,
e le I
PsmoucH 7,35
Poland 19,53,54
Policy of conplianc€ 8
Polhh campaign, 1831 20,36
Polish CoDstitution, 1815 15
Polish rcbellion,
Polish rebellion,
1$r
1864
Potitical asitatoB 60
Politicrl prisoneB 53
m, 36
57
n.57
Principle offormai
Prison
PoPov 48
lesality
37,51
62
Private generosity 59
tuivate individuak 60
Piivate inquiry 42
Private interests 61
Procurator, attached to the Dist.ict
Cou.t of St. Petarsburs 48
Puu.ator Gene.al
41
Professor of philosophy 9
Professor of practical
philosophy
Proletariat 57
60
Pronises of mondchB 55
Promulqatinsauthority 2l
P.ophetical g€stures,
Haegersuoem's
13
PrGecutions of the GovernoB 40
Provinc€
ofViborg
1?
Provinciallaws.medievol
56
P.ovisional Governnent of Russia
191?
Political suN€t€, Haeserstl@m's
Po[ocx, FREDEiIoK 8
Population
53
Pimitive nasic 3
P nce in Russia 19
53
Publi.,tion of law
21
Punbhment 25
Pure-Finnish 5?
Pure-FinDish nationalist
33
Pomoo. See BoryA
state 18
Poss€ssins classes 62
Postal re8ulation 46
Positivist
PGt-Muscovite
RN3ia
Queen's
28
nar in Enslard
Racialm,Btici€n 35
Railwaysystem 32
19
Inde,
74
R^MsaY, ANDERS
Reactionary 26
Rusia,Pet.ine
Reclot of Abo Akademi 59
Red
revolutioDsries
Resent's
Oath
R.ErD, JoHN
Russian
bureaucncy
Russia! bureaucrats 45
Rusim buine$nen 45
Rtrkien CoD.cil 46
lsw 10-ll
R€lease-oder 49
RelisioN mFtictum 35
Reprcsentativessembly
Rmsian histo
on
Rusian
7
44
R€volution {{
R€volutionaries 14,45
R€volutionary ideas 35
RrcHrRD 12
"Right of rinnilh int rest":
Haegemtroendieusins 6r
Rishtolprop€dy 62
'Right or mong, my country' 62
Risht to lesislat€ 21
Rishteous in Europe, appeal
Rishts 3,63
Rishk mdfreedons 2r
Rights of the citizen.y 18
to
61
military
RNde otriceB
Rusian opprcssion 60
Ru$ian prcE€nce 57
Russisn Social DeDocratic
Pady
25,45
Russiansubject!
Russie tim€ 55
Ru$iantreasuy 37
Russian White Army 36
Rulsifi cation 7, 21, 34, 35, 47,
57 n. 5?
S^NDELS, JoH^N
General 55
Sandepu 20
SaNDN, RoBERT
ScH
Russia 9,24
Scholar 58
a!
26
Rursia, Euopearized officialdom
Russia,
35
Holy
UM-^NN,
T.
1,2
SCHEEr,E,
s
8
EUGEN 21
FR^NS
I
Scholuly debate in Finland 20
'School-buildins',scholarly
School srstcm of
Finlmd
Scfilcr, HENETX 8
ScHYBERcsoN,
35
Aucusr,
Sceptic, Haeserstroem
58
of
la*€ 62
Scandinavia 60
Scandinavianidentity 6
,Bure et inrnaae, Constitutionalism
15
in
4?
St. Pet€rcburs 36,48,50
Sectity of law 19,62
Royal Swedish Sailins Society
(K.S.S.S.) 20
RuDrN, V. 9
Rule oflaw 45
RUNEBERG, JoH^N LuDvrc 5,6,8,
Rwsia, Asiatic heritare
37
37
Ss.rGmct fundmental
42
RoPE, HucH TREvoR 63
RGEND L, M^GNU8 9
Russia, Czar of 6,52
Russia, d&md of 45,46
34
RNsim military code
SaHLiiN, C.Y. 8
St. Larssatan (Uppsals) 9
Riot
spirit
32
Ru$ianmarLet 45
Haeg€rshoen r€po(ing
lesati8
ans
Russisnlan8lage 37,40,47
3
Republic 45
Resistance of the Finru,
19,55
35. Se€ airo
16
PHLLTP 21
Runebergian
15
33
Russianadminist.ation 38
14
Relationship between stat€ snd
R$toriDs
AI
Russia,lmp€ al Throne of
60n.70
Secret
Gusalr
society 38
43
12
32
75
Ser{et€rmination
Ser-i t€rest 63
SELTN, JoH^N
SPER NBXY,
M^cNu
of
40
of
Senate ofFinland, MemberB
Senate of Finland, Report (on
22
chansed, the
General Prmurst r's Olfice) 21
SeDatt Place {HelsinsfoE) 43
Seraglio 23
sEErDA.V.N.48
27
Stat€ order 9
Stat€ Secreta at ofthe
Stockllolm 8,9,26
St@kholm Con$e$
SrRENc,
St
38
24
Slave z
Slsv€ry 24,27
SMns, AD^M 27
SoBEroY,IVANMrcH^[oucH 48
Social Democratic 28
So.ial Demodatic Party,
Rusian 25
Social Democratic Party,
Swedhh 26
Social Democratic Party of
FinlEnd 45
13
nsjodty 4.6
party 52 n.41
Socialisiuprtuing 14
Socialists 45,54,60, S
Sociolosicalempiricist 12
S6derhielD, Wetner 5?
SoldieB, Russian 45
SoLoN
52
Soviet Governb€nt 55
Speaker in the Diet of FiDIand
60,6r
Superior
th€ 55
24
force
64
Supematural 62
Superstition 3,63
Supershuct$e on the economic
coDditiom
13
Finlard
SuF€me Cout of
Supr€me
value
41
61
Suoneriinnd(Sveabors) m
Suspicion 23,34
Sveabors 20
Sv€nljunsa 5
SvrNHUrwD. PER
ED!'N
39. 54
Sweden 9,34
Swed$ r9,34
Swedhh 36,4?
Swedishbureaucracy 12
Socialism 25
ideals
31,
Errrl EDV$D 39
kins, preference for
smouP. TrMofrY 11
Sub€btence
Swedish class ofcivil
Swedtuhdec€trt
servantr
22
22
Swedish era 56
Swedish 'historical
museun' 57
Swedbhjudse 31
Swedilhlansuage r0,32,36,4?
Swedish literature 19
swedish mentality 55
Swedishme.chalb 20
Swedish-minded 40
Swedish
niDority
Swedbhn.mes
51
41
45
45,54
ALExs nDRo\lcB !E
SrMxoNN, N.E. 1,4,23
'Sin asainst the Holy Ghoat' 22
35
Party
AxxrDIEvrcH
SToLYPTN, PETER
subBhiv€s
SxrRrN,CH^fl,o,m 5
Skoklo€ter f4tival, 1887 6
MinistrY
of Ru8sian
Social Demo$atic
Subject
Socialist
Socialist
Socialist
23
16
SEYN, FR^NS ATBERT
Slavcultw
Lans"
SraLrN, JosE?H 33
ResrectiDs U
Serfdon
36
16
SPtrENcrPoRrEN, GOR^N
Senat€ of Finlend, Department
Justice 41
of
MTHArL
"The Spirit ofthe
FREDRIK 49
Seni-Asiatic order 26
Senat€of Finlsnd 8,9,21
Senatr of Finlard, letter
Finlard
Special war office for
54
57
InJet
76
Swedish natio.al
TukishEhpne
S*edish
Ottohan Empire
Iu'ie (Abo) u n.33
chamcta 56
nobility 20
Sw€dish lule-oflaw traditions
Swedish E hool 57
Sw€dish venemtion for law 62
Swedilh-speatins
33
40, 42, 41, 57,
5? n. 56, 58
Swedish{p€akinscities
20
Swedish'speakins university in
Abo
t7,20
Sr€taD
CoBtitution
THERTT^N 43
"Tid€." (Socialist periodical)
Time immeDorial 2r
60
l9
Trasedy 33,44
Trainedmen 59
Ttamlation 2,24,17
Tran3portltion 46
Treason 33
TREI"rM^N, JoHN 1
Troops fron rinknd 20
'True Ru$im orbitrarine$' 28
Ttuth-functio.alaralysis 4
Truth-value u
Tsot
Pobkii
75
29
law 4
Value nihilist 59
Value point ofview 62
Values of the n.tion 22
Verdandi (student as6ociatio.) 60
Vibors 48,62
Vibors Court of Appeal 40,58
Viotations of the Fimbh
18
Theoiy about Dorab 1r
Theory in mo.a]s 11
Theory of empirv md value 3
Tsist Ru$ia
54
VoluntaeB froE Sweden (to Finland,
191?-1918) 14
W^!LER,
M^trcrr 3,5
Wai,Russo-Japme
21,4,1
War, Russo Tukish 36
War Crinhals Cout of 1945 64
War in Fidmd, 1808-1809 6
Warninsjudges 40
walsas fYdrsorte)
WealofFinlard
Wealth 63
WESTERM^RCX,
16
61
EDwaRD 2,7,8, 10,
12,13, 20, 28, 3r.55.59
WETTERHoFF,
W}lippins
p
FREDirx
nces in
59
Rulsia
19
Tsa.ist autocracy 35
TurLestan 35
rr,
Valid
Tdeide Pa,ace (St. PeteBburd 53
T€mperance Societies 52 n.41
Tsar. See olso Czar
10
63
Upp$ clals 33
Uppsala 8,9,10,12,59
28
yoke 29
ToPrl,rus, Z^cH^ruAs 5,
Lud
University ofUppsala 3,6,10,
12,63
University Eainins 31
25
nrle
'Tempered'Sovembent
ofLondon
UniveBity of
Tales ol Er$ign StAl by
Ruebers 6
Tatai
Tstar
Unnfollenhetsnannen 38
Unit€d Statls ofAmerica 20
UniveEal nilitary service 36
Univ€rsi8 of Hebilsfora 7, 10,
University
59
ofpower 23
Syst€m ofn les 3
S,tst€m of souce!-of-law
SzAMUELY, TtBoR 29,33
21,29. See dho
Will, hi! lnperial Majesty's 40
77
WiI ofthe tuler
Wil'theory
24
,onwRIcHr,GH
12
25
WrrIrocBI,. K^RL 26.29
Workingcla$
26
World Co.s€€s on Philosophy of
Law and Social
Ba!€119?9 1
Philorophy,
World e@nonic order 13
World oreanization of production
,nd dlshibution
l3
Yiddish
38
YouRcEvIcH 50
YRrd-ItusKNE , GEoRc S^x-^Rr^s
(oriSioallv Dabed FoRsM^N
nobilized a! Y Kr 56