Lieven D. (ed.) The Cambridge History of Russia, Volume 2: Imperial Russia, 1689-1917

Подождите немного. Документ загружается.

Cambridge Histories Online © Cambridge University Press, 2008

Russian society, law and economy

to the peasants than the crime itself. In judging an offence, they distinguished

between sins, for which only God’s punishment would apply, and crimes. Thus

the takeover of manor land which was not cultivated by its owners was a sin;

theft of peasant property however, was a crime. Where state law punished such

sins, it met with disapproval in the villages. Peasants and ofﬁcials perceived

different crimes; hence they also had different concepts of law. It was also

important in the village to mete out punishment in such a manner that vic-

tims and perpetrators could continue to live together. Rural common law was

therefore oriented towards compensation, whereas the state required punish-

ment. The village communities usually did not even approve of state sanctions

if they were convinced that a criminal offence required punishment. They hid

the criminal offences from the state’s investigating magistrates whenever pos-

sible and administered punishment on their own, informally, by beatings or

other forms of humiliation. Ultimately, the reintegration of the perpetrator

was always the ultimate goal, for who in the community ultimately really had

an interest in throwing indispensable workers into prison? The peasants only

turned to extreme measures when criminals threatened their existence – if

robbers, arsonists or horse thieves attacked their villages and took their per-

sonal belongings. In some areas, such as in Siberia, gangs of runaway prisoners

terrorised the population without the police authorities’ being able to put a

stop to them. And because the authorities could not control crime, and the reg-

ular justice system punished robbery and theft with relatively mild sentences,

the peasants turned to lynch-law for robbers and horse thieves. If the local

state authorities learned of people thus taking the law into their own hands,

they would have the ringleaders arrested and brought to trial. Obviously, this

destroyed any respect for state law, which was thus proven to be a blunt sword

against robbers and professional criminals, but an uncompromisingly tough

weapon against the peasants’ informal justice.

That, too was the case of violent village crime, which in the perception of

educated public opinion gained in intensity after the end of the nineteenth

century, because it became visible to the elites with the immigration of peas-

ants to the large cities. The seasonal workers from the villages were crowded

together in the small spaces of the workers’ barracks, factories and bars, which

18 S. P. Frank, Crime, Cultural Conﬂict, and Justice in Rural Russia, 1856–1914 (Berkeley: Uni-

versity of California Press, 1999), pp. 115–44, 243–75; C. Frierson, ‘Crime and Punishment

in the Russian Village: Rural Concepts of Criminality at the End of the Nineteenth

Century’, SR 46 (1987): 55–69; C. D. Worobec, ‘Horse Thieves and Peasant Justice in

Post-Emancipation Russia’, JSH 21 (1987): 281–93; P. Czap, ‘Peasant Class Courts and

Peasant Customary Justice in Russia, 1861–1912’, JSH 1, 2 (1967): 149–78; V. V. Tenishev,

Pravosudie v russkom krest’ianskom bytu (Briansk, 1907), pp. 47–54.

352

Cambridge Histories Online © Cambridge University Press, 2008

Law, the judicial system and the legal profession

became the scenes of a kind of violent crime which was unknown to the edu-

cated citydwellers: ritualised mass ﬁghts, brawls between drunken peasants,

rape and manslaughter – all that was being brought in from the village to the

city. Where there were no hospitals, doctors, police or civil servants, the village

and the urban workers’ housing estates were left to their own devices. Vio-

lence became a cultural resource available to all. Moreover, belief in witches

and magicians, miracles and conspiracies also survived in this environment.

How else could murderous deeds have been justiﬁed by the claim that the

victim was a witch or a magician, if the peasants had not been convinced that

supernatural forces ruled their lives? In short, the violent exorcism of devils

from human bodies, the killing of horse thieves, robbers and witches, the theft

of property and the everyday practice of physical violence was, in the view of

the peasants, not criminal, at least as long as such acts could be ﬁtted into their

view of the world.

And it was the jury courts which lent expression to this

situation of legal turmoil which separated the elites and the people from one

another.

The jury courts did not overcome the traditional legal dualism; they pro-

claimed it. The peasants in any event had no concept of the enlightened legal

ideas of the judicial ofﬁcers, and their decisions as jury-members of the state

courts were no different than they would have been at a village assembly.

Thus, while sectarians, blasphemers or robbers and thieves who had stolen

peasant property could hope for no mercy from such juries, killers, rapists,

hooligans and those accused by the authorities of having cut wood in the

forests of the nobility or resisted the orders of state authorities were acquitted

in a large numbers, sometimes even after they had confessed their guilt. In no

other country did juries acquit more frequently than in Russia. In 1883, 45.5

per cent of all defendants brought before jury courts in the tsarist empire were

acquitted; in the juridical districts of Odessa and Kherson, the ﬁgure for that

year was 55 per cent.

And since the defendant’s fate depended on the venue

and social composition of the jury, the capriciousness which had been believed

to have been overcome returned to the justice system. Jury verdicts were ﬁnal,

no appeal was possible. They could only be contested through a cassation

19 A. A. Levenstim, Sueverie i ugolovnoe pravo (St Petersburg, 1899), pp. 36–7; E. I. Iakushkin,

‘Zametki o vliianii religioznykh verovanii i predrassudkov na narodnye iuridicheskie

obychai i poniatiia’, Etnograﬁcheskoe obozrenie (1891), no. 2: 1–19.

20 RGIA, Fond 1405,op.82,d.372,l.70; N. S. Kapustin, Statistika suda prisiazhnykh. Sbornik

pravovedeniia i obshchestvennykh znanii (St Petersburg, 1894), vol. III, p. 250;A.K.Fon-

Rezon, ‘O nashem sude prisiazhnykh’, Russkii Vestnik 182, 3 (1886): 58; E. N. Tarnovskii,

‘Otnoshenie chisla opravdannykh k chislu podsudimykh v evropeiskoi Rossii za 1889–

1893 gg. Sravnitel’no-statisticheskii ocherk’, ZMI 3, 9 (1897): 172.

353

Cambridge Histories Online © Cambridge University Press, 2008

Russian society, law and economy

complaint at the Criminal Cassation Department of the Senate, if the public

prosecutor or the attorney claimed that procedural errors had occurred.

This popular justice contradicted the elites’ concept of justice. The reform-

ers who dreamt of a self-civilising process of the peasantry in the jury box

could not ignore this fact. ‘Instead of a state court with participation by rep-

resentatives of the people, we have got a people’s court with participation by

representatives of the state.’ Thus the public prosecutor of the St Petersburg

Judicial Chamber, V. F. Deitrikh, described the dilemma of the Russian judicial

reform.

Like the jury courts, the justices of the peace too were to have been an

example to the peasants. Justices of the peace were ofﬁcials elected by the

local self-administration. As such, they served not only state law, but also

the interests of the ‘society’ in whose name they administered justice. For

the reformers, it was important that the local justice system impose mild

punishments and issue verdicts in civilian and criminal proceedings which

ﬁtted in with the common law of the rural population. For this reason, the

legislation also therefore assigned to the justices of the peace the authority to

solve conﬂicts by an arbitration procedure.

In the cities, the justices of the

peace quickly won the conﬁdence of the population by adjudicating in a way

which publicly demonstrated their indispensability. The ﬁrst justices of the

peace came from the ranks of the reformers and conveyed a feeling of legal

fairness to the municipal population without which society cannot continue to

function.

In the rural regions, however, the reformers failed to achieve their

goal of changing the legal consciousness of the peasants through the institution

of the justice of the peace. Although the number of the trials rose steadily,

too, in the provinces, and although wherever urban fashions and attitudes

enriched rural life the institution of local justice was no longer suspected of

21 Uchrezhdenie sudebnykh ustanovlenii, §§ 81–102; Ustav ugolovnogo sudoproizvodstva,

§§ 646–915; Foinitskii, Kurs, vol. II, pp. 547–57; S. F. Mal’tsev, ‘Kassatsiia opravdatel’nykh

prigovorov’, ZMI 5, 10 (1989): 122–41.

22 Deitrikh, ‘O sude prisiazhnykh’, 18.

23 M. I. Brun, ‘Mirovoi sud po sudebnym ustavam Aleksandra II’, in Vybornyi mirovoi sud.

Sbornik statei (St Petersburg, 1898), pp. 1–18; S. P. Mokrinskii, ‘Vybornyi mirovoi sud’,

in Sudebnye ustavy, vol. II, pp. 1–64; N. N. Polianskii, ‘Mirovoi sud’, in Davydov and

Polianskii, Sudebnaia reforma, vol. II, pp. 172–291; Foinitskii, Kurs, vol. I, pp. 207–339;

V. A. Maklakov, ‘Local Justice in Russia’, RR 2 (1913): 127–62; Baberowski, Autokratie,

pp. 247–53; T. Pearson, ‘Russian Law and Rural Justice: Activity and Problems of the

Russian Justices of the Peace’, JfGO 32 (1984): 52–71.

24 A. E. Nos’, Mirovoi sud v Moskve. Ocherki razbiratel’stva u mirovykh sudei (Moscow: Izd.

Cherkesova, 1869), vol. I; V. Volodimirov, ‘Mirovoi sud v Peterburge’, ZGUP 14, 5 (1884):

1–58; Petrogradskii mirovoi sud za piat’desiat let 1866–1916, 2 vols. (Petrograd, 1916); Koni,

‘Novyi sud’, 288–304.

354

Cambridge Histories Online © Cambridge University Press, 2008

Law, the judicial system and the legal profession

being an instrument of state arrogation of power, the peasants nonetheless

usually avoided the justice of the peace. As elected ofﬁcials of the local self-

administration, justices of the peace were considered to represent the will of

the majority group in the zemstvo, and thus to serve the interests of inﬂuential

landowners. However, local justice was not only at the service of inﬂuential

interest groups in the province. It often remained unapproachable to the

peasants,at leastin the larger provinces,because itsvenue wasgenerallylocated

in the district town. The originally planned deformalisation of the proceedings,

too, remained nothing more than an unredeemed promise. It could not be

realised, simply because the legal constitution not only allowed appeals or

cassation complaints against verdictsof the justices of the peace at theAssembly

of Justices of the Peace (s”ezd mirovykhsudei), but also assigned to the Senate the

competence of ruling on cassation complaints against verdicts ofthe assemblies

in the last instance. In this way, the rights of the subjects were to be protected,

the capriciousness of the judges restricted. But cassation presupposed that the

justices of the peace observed the formal regulations and kept court records

of all stages of the proceedings. Complying with the formal procedures was

the only way to win such an appeal. One had to justify the complaint, in

writing and with reference to the legal stipulations upon which it was based.

However, the peasants were hardly ever capable of doing so. They had to

call on the help of so-called ‘underground lawyers’ (podpol’nye advokaty)who

formulated complaints in their names, and also substantiated them. However,

the peasants only seldom gained from such services. It was on the contrary the

underground lawyers who proﬁted from the written-complaint-based system.

They persuaded the peasants to make hopeless complaints and had themselves

paid princely sums for their ‘help’.

With the separation of powers, which was thoroughly implemented even

at the local level, competing state ofﬁces mushroomed in the districts and

battled each other for inﬂuence. The peasants, of course, had no idea what the

concept of separation of powers meant. They were sure it meant no protection

of their rights, but rather a weakening of those authorities who knew how to

25 Vysochaishe uchrezhdennaia komissiia dlia peresmotra zakonopolozhenii po sudebnoi chasti.

Podgotovitel’nye materialy (St Petersburg, 1895), vol. X, pp. 1–9, 19–25; V. K. Sluchevskii,

‘Iz pervykh let zhizni sudebnykh ustavov’, ZMI 20, 2 (1914): 181–233; P. N. Obninskii,

‘Mirovoi institut. Sudebno-bytovoi ocherk’, Iuridicheskii vestnik 20, 2 (1888): 400–15;I.

P. Zakrevskii, ‘O zhelatel’nykh izmeneniiakh v sudebnykh ustavakh’, ZGUP 11, 2 (1882):

17–57; Mokrinskii, ‘Vybornii mirovoi sud’, pp. 20–30; Polianskii, ‘Mirovoi sud’, pp. 218–25;

V. Fuks, Sud i politsiia (Moscow: Universitetskaia tipograﬁia, 1889), vol. II, pp. 100–3;M.V.

Krasovskii, ‘O nedostatkakh nyneshnago ustroistva mirovykh sudebnykh ustanovlenii’,

ZGUP 18, 4 (1888): 30–57; W. E. Pomeranz, ‘Justice from Underground: The History of

the Underground Advokatura’, RR 52 (1993): 321–40.

355

Cambridge Histories Online © Cambridge University Press, 2008

Russian society, law and economy

ensure them those rights. Nobody respected a judge who might be able to

deliver a verdict, but could neither arrest nor punish, and whose verdicts

might be annulled by a higher authority. For the peasants, the important thing

was that their complaints be accepted and decided upon at one place and by

one person. That fact provided the basis for Minister of the Interior Dmitrii

Tolstoi’s argument, in 1887, before the State Council, to abolish the institution

of justice of the peace.

If a peasant had something he or she wanted to get

done, the peasant called on the ‘powers’ for help. Those ‘powers’ included the

local police chief (ispravnik), the landowners and the governors, but not the

justices of the peace. And even the emperor in far-off St Petersburg received

petitions from all regions of the empire in which peasants requested the help

of their ruler. In view of the conditions under which the villagers lived, this

behaviour was rational. But that did not help the reputation of the judicial

system.

Justice and empire

The administrative and judicial reforms of the 1860s years were based on

the conviction that the modern state under the rule of law would remain

incomplete without a generally binding system of laws. It was therefore

only logical for it to spread rapidly beyond European Russia to encompass

the peripheral regions. Initially, the new institutions were established only in

the central Russian regions of the empire. They were introduced in 1866 in the

districts of the Moscow and St Petersburg Judicial Chambers, and between 1867

and 1871 in the equivalent judicial districts of Kharkov, Tiﬂis, Odessa, Kazan

and Saratov. The judicial reform also came to Poland in 1875, and the govern-

ment opened court chambers in Kiev and Vilna between 1880 and 1883, and in

the Baltic provinces in 1889. In the Asian regions of the empire the reformed

courts were set up only later. Although they were already established in Trans-

caucasia in 1867, they did not spread to Siberia, to the steppe regions or to

Turkestan until the 1890s. With the opening of a Judicial Chamber in Tashkent

in 1899, the introduction of the reformed judicial system was completed in the

empire.

The judicial reform was an ambitious attempt to subject the empire to

a uniform system of laws and thus to remove all estate-based and special

religious law systems which still existed. That happened in the 1880s for the

ﬁrst time, when the judicial reform was introduced in right-bank Ukraine,

26 RGIA, Fond 1149,op.11 (1889), d. 44a, l. 11.

27 Baberowski, Autokratie,pp.64–5, 339–427.

356

Cambridge Histories Online © Cambridge University Press, 2008

Law, the judicial system and the legal profession

Poland, Lithuania and the Baltic provinces. But the new courts, the separation

of powers and the public and verbal proceedings were not only a death knell for

the old estate-based judicialsystem, the reformed judicial system alsoexpanded

the rights of the rural population vis-

a-vis the land-owning and urban elites,

and broke the supremacy of the Baltic-German and Polish elites in the western

areas of the empire. Along with the courts and Russian law, Russian judges

and judicial ofﬁcials also came to the western periphery, primarily lawyers and

their assistants who settled in the larger towns in Poland and the Baltic region.

And because a complaint in court now required knowledge of the Russian

language and of Russian law, the services of the jurists brought in from the

outside became indispensable. For the native elites, these changes brought loss

of control and power which could not be compensated even if they returned

as trained jurists to the judicial ofﬁces. For the new judges were in the service

of the law and did not issue judgements in the name of the estate to which

they belonged. Thus, the former elites were transformed into mere ethnic

minorities.

Jury courts were established only in the judicial district of Kiev, but

the government refrained from instituting the participation of the people in

the judicial system in Poland and the Baltic provinces. The introduction of the

jury courts in the Western Provinces was hampered not only by the general

ignorance of the Russian language, but also because it was feared that ethnic

conﬂicts might be carried out before the jury courts.

The central government

wanted to avoid this at all costs.

Similar problems arose in the Caucasus, where the judicial reform had

already been introduced in 1867, and in Siberia and Turkestan. The courts fol-

lowed the Russian settlers into the Asian parts of the empire as they emigrated

to Siberia and Turkestan in large numbers at the end of the nineteenth century.

But the new courts were only established in the larger towns and the junctions

where the railroads brought people from distant regions together. Under these

circumstances, jury courts could not be introduced even where the popula-

tion could speak the administrative language, as in Siberia. Extreme distances

and a low population density, and especially in Turkestan the multiethnicity

28 RGIA,Fond1149,op.9 (1882), d. 81, ll. 2–9; N. Reinke, ‘Obshchiia sudebnyiauchrezhdeniia

v tsarstve Pol’skom. Zametki’, ZGUP 8, 11 (1882): 1–10; A. G. Gasman, ‘Sudebnaia reforma

v pribaltiiskikh guberniiakh’, ZMI 20, 9 (1914): 146–69; M. Haltzel, Der Abbau der deutschen

andischen Selbstverwaltung in den Ostseeprovinzen Russlands (Marburg: Herder Institut,

1977).

29 Vysochaishe uchrezhdennaia komissiia dlia peresmotra zakonopolozhenii po sudebnoi chasti.

Trudy, 9 vol. (St Petersburg, 1895–9), vol. I, pp. 1–4; RGIA, Fond 1405,op.515,d.199, ll.

7–11.

357

Cambridge Histories Online © Cambridge University Press, 2008

Russian society, law and economy

of the population, gave the reformers little room for action. Here justices of

the peace were appointed by the minister of justice, because there was no

local self-government which might have elected them, and the functions of

justices of the peace and of the examining magistrate were combined. These

were, of course, not the only obstacles which the justice system faced in the

Asian periphery. A major one was the unwillingness of talented jurists to serve

in Tashkent, Ashkhabad or the crime capital Baku, where they might expect

nothing but deprivation.

As in Poland and the Baltic provinces, the judicial reform forced the local

elites out of their administrative functions. With the jurists from the centre,

new laws and procedures came to the periphery, which were displayed in an

alien language and in alien symbols. Russian law could be mediated neither

linguistically nor symbolically in the Muslim regions, and, because the judges

were primarily from European Russia, could only be expressed at all via inter-

preters. Even in Tiﬂis and Baku, the melting-pots of the Caucasus, judges and

examining magistrates could express themselves only in Russian. Thus neither

the defendants nor the judges understood what the other really wanted. This

reﬂected not only linguistic and symbolic misunderstandings.

As the chief procurator of the Senate, Reinke, who was sent to inspect

judicial institutions in Tiﬂis in 1910, put it, proceedings in the courts in Central

Asia and in Caucasus were like ‘a cultural drama’. In trials before the Caucasian

courts, ‘two civilisations, two world-views, which were mutually exclusive’,

collided.

For Russian law punished what was not seen as criminal in the view

of the natives: the bearing of daggers and guns, or murder and manslaughter

arising from a blood feud. Where nomads stole the cattle of a clan with whom

they were quarrelling to force negotiations about a dispute, tsarist justice

imposed prison sentences against the robbers, and in so doing prevented a

reconciliation between the parties to the quarrel in a way which would have

reﬂected their own legal traditions. It criminalised what nomads considered

the law.

30 RGIA, Fond 1149,op.6 (1866), d. 101, ll. 109–12; RGIA, Fond 1149,op.12 (1896), d. 63;‘O

sudebnoi reforme v Turkestanskom krae i Stepnykh oblastiakh’, ZMI 5, 2 (1899): 63–110;

‘Sudebnaia reforma v Sibirii’, ZMI 2, 6 (1896): 145–60.

31 RGIA, Fond 1485,op.1,d.2,l.44; M. E. Gegidze, ‘K voprosu o reforme ugolovnogo

sudoproizvodstva v Zakavkazskom krae’, ZMI 2, 8 (1896): 37–61; B. I. Okolovich, ‘Ob

usloviiakh sledstvennoi sluzhby v okruge Bakinskago suda’, ZMI 19, 8 (1913): 147–76.

32 N. A. Dingel’shtedt, ‘Musul’manskii sud i sud’i’, ZMI 4, 6 (1898): 58–81;G.M.Tumanov,

Razboi i reforma suda na kavkaze (St Petersburg, 1903); V. Martin, ‘Barimta: Nomadic Cus-

tom, Imperial Crime’, in Brower and Lazzerini, Russia’s Orient,pp.249–70; J. Baberowski,

Der Feind ist

uberall. Stalinismus im Kaukasus (Munich: Deutsche Verlags-Anstalt, 2003),

pp. 41–4.

358

Law, the judicial system and the legal profession

Under these circumstances, however, there could be no rapprochement

between the two legal spheres. The natives boycotted the Russian courts: by

targeted false testimony, designed primarily to lead the examining magistrates

astray, and by violent resistance. If they resorted to the Russian courts at

all, they instrumentalised them for their own purposes without respecting

their authority. In the Caucasus and also in Turkestan, there were de facto

two systems of laws which were not connected with each other. At least in

Turkestan and in the steppe areas, the government therefore moved away

from its plan to subject the population completely to its laws. Although the

law stipulated the responsibility of Russian courts in cases of murder, homicide

and serious robbery, it left all other cases to the jurisdiction of the local tribal or

sharia courts. In Transcaucasia, however, where the administration insisted on

imposing its laws but could not in fact do so, the courts succeeded in completely

destroyingtheir own authority. Asa result, the governors ultimately fell back on

the stipulations of the Emergency Laws enacted in 1881, which permitted them

to punish by administrative measures what they considered deviant behaviour.

As the governor-general of the Caucasus, Dondukov-Korsakov, wrote in 1890,

the ‘wildness of the customs’ left the authorities no choice but to use military

justice against the natives.

To sum up, the idea of the European rule of law

was led ad absurdum under the conditions of the multiethnic empire, because it

set the indigenous elites against the Russian administration without ensuring

any homogenisation or ‘civilisation’ of legal views. There was no mediation

of ruling power.

The reform of the reform

From its inception, the reformed judicial system was showered with harsh

criticism. The conservative Moskovskie vedomosti and its editor-in-chief Mikhail

Katkov described the ministers of justice as ‘prime ministers of the judicial

republic’. Conservative writers slandered the jury courts as ‘mob justice’,

some even demanded the restoration of the obsolete estate-based system of

justice. But it was not only conservative ideologues who criticised the justice

system. At the beginning of the 1880s, the conclusion that the reform would

not survive without in turn being reformed grew, even among jurists. These

included, prominently, the chief procurator of the Holy Synod and mentor of

Alexander III, Pobedonostsev, who had once been on the side of the liberal

33 RGIA, Fond 932,op.1,d.319,l.43; Baberowski, Der Feind,pp.42–4.

359

Russian society, law and economy

judicial reformers.

During the late 1880s, this led ministers of justice to pro-

pose several amendments to the law,designed primarilyto cure the disfunction-

ality of the jury courts. They reformed the jury roster system, subordinating

it to the control of the public prosecutors, and forbade the authorities to enter

illiterates on to the rosters. Still, the abolition of lay participation in court

judgements, which conservative critics had recommended with reference to

the German and Italian experience, was not carried out. The jury courts lasted

until the end of Imperial Russia, although none of the expectations which the

reformers had once placed in them were fulﬁlled, even after the turn of the

century. Not even the independence of the judiciary and of the bar, or the pub-

lic and verbal nature of the proceedings, were ever really called into question.

This was demonstrated in the disciplinary proceedings for judges introduced

in 1885 by Minister of Justice Dmitrii Nabokov, which conﬁrmed the liberal

principle of judicial independence.

The conservatives in the government were able to score only one vic-

tory, when they succeeded in 1889 with the support of the emperor in abol-

ishing the justices of the peace and substituting for them so-called land

captains (zemskie nachal’niki), against the resistance of the ministry of jus-

tice and its jurists. The land captains were usually recruited from the same

circles as the justices of the peace had been, but combined administra-

tive and judicative functions in one hand. Although the land captains de-

formalised and simpliﬁed procedures, they had a bad reputation among

liberal jurists, who considered them uncontrollable despots who made no

contribution to the ‘civilisation’ of the peasants but rather removed them

from the blessings of justice under the rule of law instead of bringing them

closer to it. In 1912 the government not only returned to justice-of-the-peace

34 I. V. Gessen, Advokatura, obshchestvo i gosudarstvo 1864–1914. Istoriia russkoi advokatury

(Moscow, 1914), vol. I, p. 276; V. P. Meshcherskii, Moi vospominaniia (St Petersburg, 1912),

vol.III, pp.253–6; A.E. Nolde,‘Otnosheniia mezhdu sudebnoii administrativnoivlastiami

i sud’ba osnovnykh nachal’ sudebnykh ustavov v pozdneishem zakonodatel’stve’, in

Sudebnye ustavy, vol. II, pp. 613–16; K. P. Pobedonostsev i ego korrespondenty. Pis’ma i zapiski

(Moscow: Gosizdat, 1923), vol. I, pp. 508–15; H. Whelan, Alexander III and the State Council:

BureaucracyandCounter-reform inLate Imperial Russia (NewBrunswick: Rutgers University

Press, 1982), pp. 100–1.

35 RGIA, Fond 1149,op.11 (1889), d. 44a; Whelan, Alexander III,pp.178–82; T. Pearson,

Russian Ofﬁcialdom in Crisis. Autocracy and Local Self-Government, 1861–1900 (Cambridge:

Cambridge University Press, 1989), pp. 164–209;G.Yaney,The Urge to Mobilize. Agrar-

ian Reform in Russia, 1861–1930 (Urbana: University of Illinois Press, 1982), pp. 68–96;

V. M. Gessen, ‘Genezis instituta zemskikh nachal’nikov’, Pravo (1903), no. 52: 2941–54;

A. Parenago, ‘Krest’ianskii sud i sudebno-administrativnye uchrezhdeniia’, in Davydov

and Polianskii, Sudebnaia reforma, vol. II, pp. 81–171; V. I. Kriukovskii, ‘Sushchestvennyia

cherty preobrazovaniia mestnogo suda po zakonu 15 iiuniia 1912 goda’, ZMI 20, 5 (1914):

117–42.

360

Law, the judicial system and the legal profession

adjudication, it also combined it with the volost system of peasant justice

in one procedural instance.

The fact that the core of the reformed judicial system remained unchanged,

although Alexander III detested the ‘jurist blatherers’ like ‘castor oil’, was to

no small extent due to the growing inﬂuence of jurists in the higher eche-

lons of the administration. For during the 1870s, jurists had conquered the

key positions of power in the tsarist bureaucracy: they occupied the most

important positions in the State Council and in the State Chancellery, and

had moved into the Ministries of the Interior and Finance. There were even

jurists in the secret police, the okhrana, and after the 1880s, former public

prosecutors occupied the leading positions in the St Petersburg police depart-

ment. Jurists monopolised the drafting and interpretation of the laws, for they

had abilities which made them irreplaceable. This is also the reason that the

ministers of justice gradually grew into the role of supervisors who oversaw

the legality of the administration. All ministers of justice, even the conserva-

tive Ivan Shcheglovitov (1906–15), considered themselves proponents of the

concepts of an independent judiciary and of the rule of law. They therefore

resisted any proposals for implementing changes which would have called their

own indispensability into question. Even such an uncompromising advocate of

autocracy as Alexander III ultimately had to submit to the practical constraints

which the bureaucracy imposed on him.

This was shown in the inability of

the monarch to ﬁnd a minister of justice who would submit to his will. The

ministers of justice Dmitrii Nabokov (1879–85) and Nikolai Manasein (1885–

94) were dismissed because they would not bow to Alexander’s desire to rein

in the justice system. Even with the conservative minister Nikolai Murav’ev,

who remained in ofﬁce until 1905, the monarchy failed to ﬁnd happiness. In

1894 Alexander III directed him to form a commission which would place

the system of justice on a new basis and homogenise it, but would above all

abolish the independence of the judiciary. Murav’ev failed, because he neither

fulﬁlled the desire of the conservatives to end the independence of the judges

and abolish the jury courts, nor that of the liberals to expand the competence

of the independent judiciary. No one, however, suffered a greater defeat than

36 Baberowski, Autokratie,pp.206–34, 722–9.

37 A. A. Polovtsov, Dnevnik (1883–1892), 2 vols. (Moscow: Nauka, 1966), vol. I, pp. 347–8, vol.

II, p. 336; Koni, Ottsy i deti,pp.156–72; D. Lieven, Russia’s Rulers under the Old Regime (New

Haven: Yale University Press, 1989), pp. 177–85;J.Daly,Autocracyunder Siege: Security Police

and Opposition in Russia 1866–1905 (DeKalb: Northern Illinois University Press, 1998),

p. 29; A. G. Zviagintsev and Ju. G. Orlov, V epokhu potriasenii i reform. Rossiiskie prokurory

1906–1907 (Moscow: Rosspen, 1996), pp. 7–96.

361