The Reformer

by Stephen F. Williams

  Judicial Reform, Citizen Remedies

  WE SAW IN CHAPTER 8 Maklakov’s concerns with the government’s persistent arbitrariness, especially its reliance on the extraordinary security laws and its use of agents provocateurs. He viewed the judiciary as a potential remedy. He often praised an independent judiciary as the hallmark of desirable governance, and when court findings exposed and recorded government malfeasance, he liked to treat their findings as the gold standard, conclusively establishing the facts. But he knew quite well that, despite Alexander II’s nominal establishment of judicial independence in 1864, judges were incessantly subject to executive pressure, were selected for a variety of reasons that did not include their intellectual independence, and worked in a culture that placed a high value on congruence with government attitudes, if not downright submissiveness. His gold standard claim still held; findings or judgments against the government were most unlikely to be due to a lack of judicial independence.

  Maklakov worked on three fronts to make the courts a serious barrier to executive arbitrariness: first, spotlighting the facts of judicial dependency and its sources; second, pushing for structural reforms to enhance judicial independence and otherwise extend the rule of law; and third, developing judicial remedies against official lawlessness. (Because the devil is as always in the details, some of the following discussion is quite technical, though not, I hope, legalistic.)

  Because of the tenure rules of the 1864 reforms, which provided that judges were neither removable or even movable (from court to court) without their consent, government abuses of judicial independence tended to be secretive. But Maklakov identified plenty of signs. Direct threats were the government’s most obvious means. The head of the Tiflis court, for example, told its judges that any judge who issued an acquittal with which the appellate branch disagreed would be subject to disciplinary measures. If this threat appeared to be an idle one, because such discipline would be unlawful, Maklakov reminded the Duma that the authorities could easily cover such a move with a fig leaf of legitimacy, citing examples of disciplinary proceedings that seemed to follow right after acquittals.1 He also pinpointed government threats to a judge who had exposed a use of agents provocateurs. He contrasted this with the words of a French judge who had told the authorities there that they should “expect judgments from [the courts], not services.”2

  Of course the government could use carrots as well as sticks. Right after the Beilis trial, for example, all those in the judiciary and the procuracy who participated on the anti-Beilis side received special awards. And the government used sticks to beat those who did their jobs impartially. Investigator Nikolai Krasovskii, who had persisted in the search for truth, was fired and prosecuted for some supposed prior offense (he managed to win acquittal).3

  If the judges could not be successfully pressured, the government could thwart the enforcement of their decisions. Maklakov pointed to a land dispute involving the prominent Stroganov family, in which a provincial governor, with the help or at least the indifference of the ministries of internal affairs and justice, had helped the losing parties defy a ruling of the Senate (Russia’s highest court).4

  Maklakov’s recognition of executive domination of the judiciary was confirmed by investigations conducted later by the Extraordinary Investigative Commission set up by the Provisional Government in the wake of the tsar’s abdication. Ivan Shcheglovitov, minister of justice for more than nine of the pre-revolutionary years (April 1906 to June 1915), coyly testified to the commission that it was “possible” that he had issued instructions calling for deliberate severity on the part of judges in choosing punishments for political crimes. And, though recognizing that by law a judge could not be removed or reassigned without his consent, he said “that there had been exceptional cases where it was necessary, as it were, by personal conversations, to bend (skloniat) a judge or two to accept a change in his position.” The “bending” had apparently occurred in response to reviews of case outcomes that Shcheglovitov’s assistants conducted at his request.5

  What made such executive interference possible in a state that had supposedly adopted the principle of judicial independence? I’ve seen no systematic treatment of that question by Maklakov, but he did point to two types of explanations—a general attitude or culture, and the rules and practice of judicial selection.

  High officials openly expressed their expectation that judges would act as part of a government team. In a speech responding to criticism from Maklakov, Stolypin hinted that the government might be contemplating measures to explicitly modify the tenure principle embodied in the 1864 reform. Stolypin cited France, a paragon of western European liberalism, as having recognized exceptions to the principle of irremovability.6 (Indeed it had. In the Act of August 30, 1883, supporters of the relatively new Third Republic, in order to consolidate their victory, had suspended the principle and conducted a purge to remove judges hostile to the new regime.)

  Maklakov, an ardent Francophile, was perhaps especially stung by having French practice thrown in his face, and took to the floor. Using his typically admiring language for the judges, he asked, “Can you speak this way of those who observe and guard the laws?” He claimed that there was “one fateful obstacle that causes them to make mistakes for which we reproach them—and that is the insufficiency of their independence.” Their tenure (nesmeniaemost), he said, needed reinforcement, not dilution.7

  Maklakov linked the issue to broader themes, trying to both shame and tempt the government. He shamed it by invoking the October Manifesto, which explicitly purported to establish “an unbreakable rule” that a law could become effective only with the approval of the Duma. Assaults on judicial independence would indirectly break that promise; if the courts could be swayed from adherence to the law as written, then the “law” would not truly bind the government. But he also pointed to potential political advantages for the government if it were to embrace rule-of-law reforms. Bismarck, he said, had observed that the strength of a revolutionary movement lay not in its leaders’ ideas, but in the moderate demands that had not been satisfied in a timely way. Here the moderate demands and the government’s own past promises were in agreement, as indeed were their interests. Honoring these promises, he argued, would sap the revolutionaries’ strength.8

  Minister of Justice Shcheglovitov was a frequent opponent of Maklakov on this topic. He was crudely dismissive of judicial independence, remarking in the Duma that the courts must be constrained by “an iron discipline.” Maklakov responded that the minister seemed not to notice that with such a claim he was destroying the courts’ position in the state. As a result of such a practice and attitude, he said, “the judgments of courts are no longer believed.” Interrupting, Markov II shouted from the floor, “They don’t believe this Jewish nonsense.”9 (Interjections from the floor were common in Duma debates, though rarely at such a low level.) Later, on the eve of World War I, Shcheglovitov suggested in the Duma that even in western Europe faith in constitutional guarantees was falling lower day by day.10 In reply, Maklakov pointed out what a radical backsliding Shcheglovitov’s view was from Stolypin’s commitments in the Second Duma to create a rule-of-law state.11

  Of course executive impatience with the judiciary is not confined to moribund autocracies. Jefferson, having instigated the treason case against Aaron Burr and meddled in its prosecution, and being disappointed at Burr’s acquittal in a trial presided over by Chief Justice John Marshall, wrote to friends complaining about what he saw as the folly of the Constitution’s having given judges life tenure. But at least in the United States the principle of judicial independence was well enough established that Jefferson didn’t go public with his ideas.12

  Nothing in the power or practice of judicial selection in imperial Russia tended to fill courts with people who were likely to withstand government pressure—or even interested in resisting. The appointments were up to the tsar or his subordinates in the ministry of justice, so there was no incentive to conside
r opposing points of view, other than the tsar’s grasp of the long-run advantages of doing so—always a thin reed. When Shcheglovitov was asked by the Provisional Government’s investigative commission how he went about choosing judges for the civil courts, he said he sought “the firmest people, of the most monarchist disposition, who would be guardians of the existing order.”13 Maklakov noted that Shcheglovitov had been a judge before becoming a minister, and expressed doubt whether the attributes he displayed as a minister—here Maklakov’s examples all ran to Shcheglovitov’s tendency to make choices likely to please his master, the tsar—would make a good judge.14 Shcheglovitov’s career path illustrated another pattern not conducive to judicial independence: continuous alternation between posts as procurator (virtually equivalent to a prosecutor) and as judge. For Shcheglovitov the sequence had been deputy procurator, then judge, then three (steadily rising) posts as procurator, judge again, ministry of justice official, procurator again, then two posts as a ministry of justice official, and finally minister of justice. Such a scramble of executive and judicial posts seems unlikely to foster a sense of the responsibilities unique to judges.

  Discussing the Senate itself (specifically its “first” department, which dealt with appeals concerning government conduct), Maklakov argued that the ministry of justice’s apparent preferences in exercising its appointment authority were first, for people who had left government service whom the government didn’t know what to do with, and second, for people who had spent their whole lives “fighting the law.”15 The result was senators who, even if they were at all disposed to uphold the law, were outclassed by the skills and experience of the chancellery and procuracy. Maklakov drew a thumbnail sketch of what happened when a private person filed an appeal against a governor: “The senator, a former governor, says, ‘The governor is probably right, write a decision in his favor,’ and the chancellery carries it out.”16 Maklakov also lamented that the Senate had become “a place to which disgraced functionaries are sent.”17 He may have had a specific appointment in mind. Pyotr Durnovo, whom we’ve already met a number of times, was for a time police chief for the empire and in that role had used police officers to search the office of a diplomat who was his rival for the affections of a particular lady. For this misuse of government personnel, he was sent to the Senate’s first department as “punishment.”18

  Maklakov sought where possible to nudge the system toward changes that would enhance judicial independence. The most critical opportunity was the government’s proposal in 1909 to drop the township (volost) courts (that is, courts for the regional units of government just above the village) in favor of an expansion of jurisdiction for justices of the peace (the mirovoi sud). The proposal was a reversal of an 1889 policy change. Until 1889, the two systems had coexisted: the justices of the peace, which originated with the 1864 reform, and the township courts, which were created in 1861, when the emancipation of the serfs eliminated the political basis for having local landowners adjudicate peasant disputes. In 1889 the government largely eliminated the justices of the peace in rural Russia.19

  There is some dispute over whether that abolition was simply another instance of the many reactionary changes of that year, the counter-reform apogee of the reign of Alexander III, or whether it was a sensible response to deep incongruities between the justices of the peace and peasant culture. The case for deep incongruities seems to rest largely on the justices’ excessive reliance on written evidence. That created slowdowns in the administration of justice (to which the government responded by imposing additional burdens on the justices), and generated peasant complaints that the formal procedures enabled the “kulaks and miroedy” to rob them through the law. “Kulaks” and “miroedy,” literally translated, mean “fist” and “village eater” respectively, and are both rather elastic terms of abuse used by peasants to stigmatize other peasants deemed to have grown prosperous by unfair means. Another peasant complaint was even more conclusory—that “the justices of the peace have nothing to do with justice.”20

  These complaints seem an odd basis for shelving a judicial system rather than reforming it. A more apt remedy might have been elimination of the procedural characteristics of the justices of the peace that led to the complaints—most obviously to correct the undue reliance on documents and to create a rule of “harmless error,” so that trivial procedural errors would not require reversal. The same scholar who reported these complaints also summarized the government’s basic theory as being that “separation of administrative and judicial authority at the borough level as well as the zemstvo election of justices of the peace were the fundamental obstacles to rural law and order and public respect for the government.”21 In this passage the author seems to be saying that the government’s precise aim in removing the justices of the peace from the countryside was to curtail judicial independence.

  In fact a major difference between the township courts and the justices of the peace was that administrators—that is, officials directly responsible to the government’s political hierarchy—were involved in the township courts at key stages: appeal and judicial selection. Appeal from the township courts ran straight to the land captains, who were officials in the ministry of internal affairs. By contrast, an appeal from the justices of the peace would take a case through the usual judicial system, with decisions by judges whose tenure was protected by the 1864 reforms.22 To the extent that rulings developed informal power as precedents (under civil law principles they would not have had binding precedential force), the adjudications could advance people’s understanding of legal norms and allow them to form expectations about their rights and duties.

  Similarly for the process of judicial selection. Judges of the township courts, a single-estate institution, were nominated by the estate in question, the peasants, but the nominations could be rejected by the local land captains.23 In contrast, the justices of the peace were elected by the all-estate zemstvo assembly, which was itself elected, though to be sure in a system slanted to landowner dominance. The difference between the systems is capsulized in the rule barring persons serving as justices of the peace from holding other offices at the same time;24 the land captains exercised their powers over the township courts as part of their administrative functions.

  The government’s 1909 bill, besides abolishing the township courts, restored the justices of the peace to their pre-1889 role in rural Russia, along with election by the zemstvo as in the pre-1889 era.25

  But two subsidiary features of the bill posed risks of executive encroachment and drew interventions by Maklakov. First, the bill included property qualifications for the justices of the peace; and, for those exempt from that qualification because they had received a higher education, there was a requirement of birth in the locality where they were to serve.26 These requirements led indirectly to an opportunity for control by the ministry of justice. If there were extended vacancies, the ministry was empowered to fill the gaps. And if the property qualifications sharply narrowed the zemstvo assembly’s range of plausible choice—Maklakov offered figures suggesting that they would do so27—the resulting delays would widen the ministry’s chances of selecting judges itself. Couple that with the three-year term for which judges were to serve,28 and the risk to judicial independence was plain:

  If our ministry were occupied with matters of justice, and not politics, I would favor appointed judges, but in our times if you give the ministry of justice the right to name judges, how will it name them? The judges are not irremovable, but are chosen only for three years, and the minister of justice will plant his subordinates there for three years, people full of his viewpoints, who will judge on the basis of considerations satisfying to the people standing over them.29

  Because the property requirements had no useful function—they didn’t assure independence, as the property might well be recreational and produce no income (as Maklakov knew well from his own ownership of rural property), and they were unneeded to assure attachment to local
interests, as the electing zemstvo assembly could judge that attachment itself, directly30—he saw no justification for them and their resulting impact on judicial independence. The Duma ultimately compromised, accepting property requirements, but at lower levels than originally proposed, and removing the special birthplace requirement.31

  A second threat to judicial independence was the bill’s provision on the selection of the heads of assemblies of justices of the peace. The committee bill had proposed that heads be named by the Ministry of Justice,32 but Maklakov proposed election by the judicial assemblies themselves.33 The committee report on the bill said that these heads were not to be “bosses” (nachalniki), but merely primus inter pares.34 But it seems far more likely, in a society with hierarchical practices as entrenched as in Russia, that these court chiefs would have served as transmission belts for regime influence. Since these assemblies operated as courts of appeal over the individual justices, their power as collective entities was critical; they were not just social gatherings. Recall the chief of the Tiflis courts mentioned earlier in the chapter, who warned the other judges of the region that acquittals not confirmed on appeal would trigger disciplinary action.35 Maklakov’s amendment prevailed here, too.36

  Insofar as the Duma’s goal was complete replacement of the township courts, its work was in vain. In the State Council, Stolypin, possibly acting under pressure from the United Nobility, a group organized to advance landowner interests, dropped the bill that his own administration had proposed and instead championed retention of the township courts. But the State Council’s changes, ultimately adopted by both legislative houses in 1912, were still a genuine reform. Although the ultimate bill preserved the township courts, it removed the land captains from their roles in appeals and in the selection of judges, thus addressing the two features that most obviously undermined their independence. Appeals would henceforth go to a special new appellate body, consisting of a justice of the peace and two township court judges, and its decisions could in turn be appealed to the assemblies of the justices of the peace. Land captains also lost their role in the selection of judges: the peasants would elect them, subject to confirmation by the assemblies of the justices of the peace. The bill thus discarded any role for executive officials in the selection of township court judges.37