"We may not fully grasp today just how important the church once was. People were well informed about church life — for example, during Estonia's early years of independence, doctrinal debates held within the church were lively enough to be covered in daily newspapers," says Karl Kristofer Alp, a law student at the University of Tartu and a teaching assistant in legal history. In 1922, for instance, Christians made up more than 90 percent of the population in Estonia, with 78 percent identifying as Lutheran. The vast majority were members of the Estonian Evangelical Lutheran Church (EELK).

It was this system of ecclesiastical jurisdiction during the early years of the Republic of Estonia that Alp explored in a recent academic article. Specifically, he focused on the years 1918 to 1934, a period in which clerical courts — originally part of an estate-based society — had to be reconciled with the legal framework of a democratic state. According to Alp, the legal order gradually settled into place. "Although paragraph 11, section 4 of the 1920 Constitution clearly stated that 'there is no state church,' in practice it took nearly five years for this constitutional principle to be reflected in individual laws," he notes.

Old phenomenon

According to Alp, ecclesiastical jurisdiction is quite characteristic of the Christian church. "Scripture itself contains various norms, and both religious rites and church teachings are highly regulated. When those norms are violated, there arises a need to enforce them — sometimes through judicial proceedings," Alp explains.

Church courts have existed in Estonia for centuries, though in various forms. Alp traces their origins back to the Christianization of the region in the 13th century. "By the early Middle Ages, the Catholic Church already had its own legal system — canon law — which had a broader influence on the development of secular legal systems across Europe, particularly in the area of procedural law," he says.

Alp notes that people often associate church courts with the Catholic Spanish Inquisition. "At that time in Estonia, episcopal courts were in operation, handling offenses such as heresy, usury or sexual immorality," he explains.

Beginning in the 17th century, judicial functions in Estonia's Lutheran church were carried out by consistories. "The consistory was a church institution responsible for organizing matters of faith, overseeing congregations, examining clergy, appointing them to office and dismissing them when necessary. Dismissals, as well as cases of heresy, doctrinal errors and divorces, were handled through formal judicial proceedings," Alp lists. He points out that the symbols on the 1726 seal of the Saaremaa Consistory indicate that its role as a court was far from secondary — on the contrary, it was central.

Just prior to the period Alp studied, Estonia was governed by the 1832 Law of the Evangelical Lutheran Church of the Russian Empire (VELKS). This law placed the provincial consistories under the authority of a Supreme Consistory in St. Petersburg and, through it, under the power of the Tsar. "This established a pan-Russian Lutheran church organization that effectively held the status of a state church," Alp notes.

The church court system became two-tiered — decisions of local consistories could be appealed to the Supreme Consistory. In limited cases, VELKS also allowed appeals from the Supreme Consistory to the Governing Senate, the empire's highest cassation court. "Thus, consistory courts were part of the Russian Empire's judicial system, as evidenced by the fact that consistories had their own court seals," Alp says.

Initially, four consistories operated in Estonia: the Livonian, Estonian, Saaremaa and Tallinn consistories. Saaremaa's consistory was later merged with the Livonian one and Tallinn's with the Estonian Consistory. "Each consistory had six members and was chaired by a nobleman appointed by the local knighthood. The general superintendent — essentially a bishop — served as vice-chair. In addition, there were two secular and two clerical assessors," Alp explains.

At the time, society was organized by estate, with a system of legal particularism in place. This meant each estate — nobility, townspeople, peasants and clergy — had its own set of privileges and special courts. "Cases involving clergy fell under the initial jurisdiction of the consistory. More serious crimes were transferred to criminal courts, but even in such cases, members of the consistory could still be involved in the proceedings," Alp notes. He adds that given the twists and turns of history, the consistory inevitably had to evolve.

The court seal of the Estonian Consistory, from the archives of the Estonian Evangelical Lutheran Church (EELK). It originated from imperial decrees issued by Peter I, which were to be displayed on the table of every judicial panel. As these decrees were often adorned with the imperial coat of arms — the so-called "tsar's eagle" — this "mirror of the law" came to be known as the kohtukull, or "court eagle.

Republic of Estonia did not spell the end of consistory courts

In his article, Karl Kristofer Alp was particularly interested in the fate of ecclesiastical jurisdiction in Estonia's young republic, where a democratic state structure had replaced the estate-based system. "At first glance, one might assume that such a court body was destined to fade away under the new conditions," says Alp.

In the revolutionary spring of 1917, Estonian clergy decided to pursue the creation of a free national church — the Estonian Evangelical Lutheran Church (EELK) — separate from the state. According to Alp, public statements by the leading political forces after Estonia's declaration of independence indicate that the state also supported the idea of separating church and state. "However, a swift separation was not possible because the church carried out many administrative and civil registry functions that the state urgently needed to keep uninterrupted," he emphasizes.

For instance, the church recorded civil status events, maintained cemeteries and officiated and dissolved marriages. "The war and population movements had caused a sharp rise in the number of divorces," Alp points out.

He explains that in order to separate the church from the state, all these functions had to be reorganized on a secular basis. In the meantime, however, the Provisional Government left the 1832 church law in effect. Although the temporary administrative laws of November 19, 1918, stated that all previous laws would remain in force, the government found it necessary in February 1919 to issue a special decree reassigning the competencies outlined in the church law.

Under this decree, the emperor's authority was transferred to the government; the authority of the Supreme Consistory in St. Petersburg was handed over to a three-member Board of Religious Affairs within the Ministry of the Interior and the authority of the Governing Senate was transferred to the Supreme Court. Alp notes that, surprisingly, church courts continued after independence on the same estate-based foundations. "Significantly, the establishment of cassation jurisdiction in the Supreme Court meant that the so-called consistory court effectively became part of the court system of the Republic of Estonia," he says.

According to Alp, the consistory's roles and authority remained intact. "It continued to resolve disputes within congregations, disciplinary offenses by clergy and various doctrinal issues," he says. Decisions could be appealed to the Ministry of the Interior's board, and some cases even reached the Supreme Court.

The consistory also continued to handle judicial divorces, which followed distinct procedural rules. These required not only approval of the divorce and determination of custody rights, but also identifying the guilty party, who could be punished with a ban on remarriage. "Divorce rulings and marriage bans could not be appealed to the Supreme Court — the board's decisions in these matters were final," Alp says.

To allow "sinners," as it were, to remarry, the government took the extreme step of invoking the amnesty power provided for in the Constitution. "In general, amnesty is used to release individuals from sentences for more serious crimes. But at that time, the Estonian government granted clemency to a total of 35 individuals to allow them to remarry," Alp notes.

Over time, the consistory succeeded in shedding such public duties. Its authority over divorce cases ended in 1923, when the Marriage Act came into effect, and by the end of 1925, civil registry services and cemetery administration had been transferred to local governments. The law formally separating church and state — the Religious Associations and Their Unions Act (UNLS) — was adopted in November 1925.

According to Alp, shedding these responsibilities was a relief for the church. The EELK, as an organization, needed to build itself up, but in its early years, most of its working hours were spent fulfilling state duties. "If you look at consistory records from 1922, you'll see it wasn't unusual for a single session to dissolve 20 marriages," he says.

In 1919, a record 258 divorce cases were recorded. While such numbers may not seem extreme today, Alp emphasizes the context: everything had to be handled by a single court board for the entire country. "One could say that divorce cases nearly paralyzed the consistory's spiritual work," Alp concludes.

Professional in-house courts

The formal separation of church and state in Estonia was finalized in 1926, when the Religious Associations and Their Unions Act (UNLS), adopted on November 12, 1925, came into force. "This law marks a pivotal turning point, establishing constitutional order in church-state relations five years after the Constitution took effect," explains Alp.

From that point on, the state intervened in church affairs as little as possible, and churches were treated similarly to private-law associations. "Some scholars have remarked critically that this effectively reduced the church to the level of a civic club," Alp notes. Churches and religious associations were registered with the Ministry of the Interior, but their internal operations were left entirely to their own discretion. Unlike before, religious associations no longer needed to coordinate the appointment of leadership bodies with the state.

With the adoption of the UNLS, the Board of Religious Affairs — the previous second-tier appeals body — was dissolved. Still, according to Alp, churches felt the need for a higher court of appeal, which led to the creation of a new internal body in 1926: the Ecclesiastical Supreme Court. "It was a five-member panel chaired by a layperson with a legal background. In addition to the chair, there were two clergy and two lay associate judges," Alp describes.

The Ecclesiastical Supreme Court had jurisdiction to hear appeals of consistory decisions on internal church matters, such as dismissing clergy or determining salaries. Though it was technically a body for resolving intra-organizational disputes, Alp says the court was both professional and prestigious. Its lay members were highly respected jurists. "For example, its first panel included Jüri Uluots, a legal scholar and statesman," he notes. Also serving on the first panel were magistrate and later Supreme Court Justice Rudolf Georg Gabriel; the second panel included sworn advocate Hugo Naaris and Judge Konstantin Tassa.

According to Alp, the most prominent case the Ecclesiastical Supreme Court handled was that of Pastor Theodor Tallmeister of the Holy Spirit congregation in Tallinn, which unfolded between 1925 and 1932. The case stemmed largely from long-standing tensions in the church between liberal and conservative theological factions. "Tallmeister was a pastor with more liberal views, who at one point even questioned the Virgin Birth of Jesus, which caused considerable controversy," Alp explains.

Although the estate-based system had been dismantled, the consistory decided twice during the proceedings to expel Tallmeister from the clergy. Tallmeister appealed both decisions to the Ecclesiastical Supreme Court and won both times. The consistory initiated a third attempt to remove him, but after a new panel was installed, the effort stalled.

Alp says the Tallmeister case clarified the scope of authority held by the Ecclesiastical Supreme Court and demonstrated how the separation of powers functioned within the EELK. "The case also showed that the Supreme Court was not merely a rubber-stamp review body for the consistory. It handled legal questions in depth, at times clashing with church leadership, while simultaneously reminding the church administration of general legal principles," Alp concludes.

End only comes in 2021

The Ecclesiastical Supreme Court operated until 1935. In the wake of Konstantin Päts' authoritarian coup, the Churches and Religious Associations Act (KS), adopted in 1934, came into force. This also led to amendments in the statutes of the Estonian Evangelical Lutheran Church (EELK). Ecclesiastical jurisdiction gained significantly greater weight. "The church law issued by Päts via decree stipulated that churches must have two-tier church courts to resolve matters of doctrine and administration. Moreover, the state committed to assisting church courts in enforcing their decisions," notes Karl Kristofer Alp.

Following the revision of the EELK statutes, two lower church courts and a higher ecclesiastical court were established in Estonia. According to Alp, these new courts handled two types of cases. "First were administrative matters within the church. It became possible to contest decisions made by the consistory, congregations and deans," he says. Second, the courts had jurisdiction over clerical misconduct, including doctrinal deviations and serious breaches of liturgical order. Still, Alp points out that church jurisprudence during the so-called "Era of Silence" remains largely unstudied.

"Soviet occupation forced church courts into dormancy. However, judicial proceedings did resume during the German occupation, and the last recorded protocols from the ecclesiastical high court date to 1944," he adds.

After Estonia regained independence, the two-tier church court system was reinstated within the EELK. A few proceedings were held in the late 1990s, but no further sessions are known to have taken place thereafter. The church courts were formally dissolved with the 2021 reform of the EELK's statutes, and disputes are now resolved by the Episcopal Council.

According to Alp, ecclesiastical law as a distinct field of legal study has received little attention in Estonia so far, though it is more widely researched in Germany and other European universities. At the same time, he believes that recent developments involving the Estonian Christian Orthodox Church demonstrate that autonomous church law — meaning how a church regulates its own internal affairs — remains a highly relevant issue today.

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