The Reformer

by Stephen F. Williams

  Moreover, the 1912 reform retained the Duma’s provision for the reestablishment of the justices of the peace in the countryside. The final bill kept a property ownership requirement for justices of the peace, though only at the level required for entitlement to vote for zemstvo chairman, a reduction of the 1864 requirement by half. But it reversed Maklakov’s earlier success in the Duma on the selection of the heads of assemblies of justices of the peace, giving the power (as in the original ministry of justice bill) to the ministry rather the justices themselves.38 Appeals from a single justice ran to these assemblies, and from them (in cases involving more than 100 rubles) to the cassation (appeal) department of the Senate. There was also provision for “oversight” (nadzor), which ran to the empire’s regular appellate courts (the sudebnaia palata and the Senate) and the ministry of justice. Although this oversight authority appears directed exclusively at management issues, Maklakov was alarmed that it might put the courts’ independence at risk.39

  By creating overlapping jurisdiction, the 1912 statute provided an opportunity for competition between the two court systems. It gave the justices of the peace authority over cases up to a value of 1,000 rubles, as against a ceiling of 100 rubles for the township courts.40 The township courts dealt only with disputes between peasants. But the overlap created a realm within which peasant plaintiffs could choose. Had the 1912 changes had time to be applied and tested, they might have yielded interesting evidence of peasant preference.

  The dispute over the township courts and the justices of the peace of course involved more than degrees of judicial independence. Considering all the implications, Maklakov was of two minds about the choice. He fully recognized peasant attachment to the township courts. In a friendly exchange between Maklakov and a peasant on the floor of the Duma, the peasant said of the court, “Perhaps it’s bad, but it’s our court.”41 Maklakov echoed the idea in his Russkaia Mysl report to his constituents, insisting that any replacement court must have the qualities that made peasants value the township court—that it was “theirs, accessible and cheap.”42 On that account he fought to keep the jurisdiction of the justices of the peace relatively modest. An excessive jurisdictional load, he thought, would make that court an unsatisfactory substitute for the township court in the peasants’ eyes; small-scale litigation, the sort typical for peasants, was just the sort that the justice of the peace courts might be tempted to slight.43

  As to the quality of the township courts, modern scholarly opinion finds them to have provided fair and peaceful resolution of quarrels, despite uncertainty created by the courts’ unclear mandate as to when to apply custom and when statute, not to mention land captain influence.44 Except for attacks on the role of the township courts’ clerks, whom he regarded as commonly corrupt and able to manipulate the judges,45 Maklakov seems to have accepted their general fairness. But institutions can be generally fair but fall far short of rule-of-law ideals by failing to apply principles that people might rely on and by failing to articulate such principles for the future. Maklakov was distressed by the reliance of the township courts on unarticulated opinion and murkily established custom.46 Moreover, if peasants were to be acculturated to the rule of law and truly integrated into the broader economy and society, as liberal democracy would ultimately require, a single-estate court could not survive—especially if, as was true of the township court from 1889 to 1912, it lay outside the reach of Russia’s system for the application and interpretation of national law. As we’ll see in the next chapter, Maklakov viewed the isolation of the peasants as one of the most troubling of Russia’s political woes.

  Another occasion for considering the status, role, and character of judges was a government bill purportedly reforming the Senate, whose cassation department was the highest court for criminal and civil appeals, and whose first department had jurisdiction over administrative issues (that is, questions concerning the acts of ministries and other government agencies). The senators of this first department, which obviously had potential for becoming a real court of administrative review, lacked any guarantee of tenure.47

  Maklakov regarded the government proposals as mildly useful but as not going to the essence of the problem.48 He noted that the government had contemplated schemes for serious reform from time to time, especially in 1906, but official interest had waned as soon as the crisis subsided.49 On the specifics of the bill, he argued that it did little to address what he saw as the central problem of the Senate’s first (administrative) department; given the government’s bases of selection, its judges lacked the background and quality necessary to implement the rule of law. As a result the department served as little more than a screen for the lawlessness of executive officials.50

  Maklakov proposed no basic overhaul of the bill. He faulted the government for not proposing serious reforms and argued that the area was too complex for drafting in the Duma.51 And he kept returning to the government’s lack of good faith.52 “With the exception of those who build their privileges on the lawlessness and misfortune of Russia, we in the Duma all want renewal [of the country] on the basis of the October Manifesto. If the authorities shared that view, not in words but in deeds, there would be a working majority for it in the Duma and there would be results. (Stormy applause from the left and center.)”53

  The speeches of Shcheglovitov before and after Maklakov’s main speech exposed the government’s vision of the first department’s proper role. First, it was in this context that Shcheglovitov had disparaged the Duma on the ground that it was trying to imitate Western European ideas. He explained that in Russia, by contrast, the “basis of the rule of law is the free expression of the tsar’s will.” As the paper Russkie Vedomosti summarized his views, he appeared to see the Senate’s first department as existing in order to fill in gaps in legislation and to help the government “get ahead of” legislation. After Maklakov’s speech, Shcheglovitov said that the Duma’s discussion of Senate reform had turned into a “continuous defamation of the authorities.” Even the nationalist press decried Shcheglovitov’s second speech.54

  Maklakov offered some amendments, which on the whole were accepted, though he would have been the first to acknowledge their ultimate insignificance. All related to the Senate’s authority to deny publication to various legal instruments, a legal prerequisite to their taking effect. The available grounds for such a denial seemed as sweeping as those that animate constitutional review in the United States.55 So this power represented the germ of a system that would allow courts to weigh not only the validity of executive actions by reference to the supposedly supporting legislation, but also to weigh both legislation and executive actions against the Fundamental Laws, and to render inoperative any legislation or actions that failed to measure up. If the Senate had in practice exercised such authority, one of Maklakov’s amendments, extending the Senate’s power to imperial ukases and decrees,56 would have been a game changer. But in fact the Senate never engaged in such a practice. So changes widening its scope were of little moment.57

  Indeed, the easy passage of Maklakov’s amendments and the virtual absence of debate seem to confirm his view that the Senate’s review authority was a paper tiger, ineffective at holding government action accountable to legislation and to the Fundamental Laws. Had he been closely quizzed on the subject, my guess is that he would have recognized that Russia was unripe for a court exercising genuine constitutional review. Civil society and the balance between contending interests were not yet mature enough to provide the basis for a court to play the role of constitutional arbiter—to act as a constitutional gyroscope, to stabilize the political system, and to protect liberty.

  In addition to an independent, conscientious, and efficient judiciary, Russia needed a set of judicial remedies for the victims of government lawlessness. (By the same token, such remedies would be useless, or nearly so, in the absence of an adequate judiciary.)58 These might take criminal and civil forms. Criminal responsibility for the lawless officials would not dire
ctly benefit the victims but it would give officials an incentive to obey the law. Civil responsibility, in the form of rights for the victims to compensation, payable out of the pockets of the officials, the government, or both, would provide incentives to officials and reimbursement to victims. Maklakov worked on both the criminal and civil paths.59

  Before turning to the issues, a note on the thinking of Vasily’s brother Nikolai draws a revealing contrast: At the time of the main debates in which Vasily advanced his rule-of-law positions on remedies against officials, Nikolai was still a provincial governor and played no role. But later, after he served as minister of internal affairs and was dismissed from that post in the summer of 1915 as a sop to liberal and popular opposition, he was named a member of the State Council and spoke up on these issues. When a reform bill was introduced there in February 1916, Nikolai opposed it, denouncing liberals as believing that any administrative authority was bad and that such authority must be completely deactivated. But the State Council was far from uniform on the subject and certainly didn’t paint the opposition with such a broad brush. State Council member E. N. Trubetskoi, for example, wanted to have officials generally subject to judicial responsibility and pinpointed the unique character of Russia’s officials. Nowhere in Europe, he said, had officials as a class been so discredited as in Russia, so much so that the Russian word chinovnik (bureaucrat or official) had no real equivalent in any other language.60 This was obviously much more in tune with Vasily than with Nikolai Maklakov.

  A bill presented by the ministry of justice gave Vasily an opening on criminal responsibility. He saw the bill as a government response to the popularity of the idea of making officials answerable, but a response more for show than substance. The government was, he said, on “the path of recognizing the issue fully in words and keeping everything as before in reality. . . . A virtuoso performance of what in gymnastics is called running in place” (a phrase widely picked up by the press).61 The existing rule was that an official could not be pursued criminally for illegal official acts unless his superior cut him loose, repudiating his behavior62—a repudiation that was highly unlikely in light of the solidarity among officials. The ministry bill purported to solve that by providing that, in the event of a split between the procuracy and the official’s own ministry or department, the procurator could appeal to a special panel to resolve the split.63 Maklakov thought this proposal wouldn’t do the job, because the procuracy’s position was inherently weaker than that of the executive agency. Quite apart from the general dominance of the executive department over the courts (to which the procuracy was appended), the procuracy would have far less information about the episode than the ministry. He proposed a rule requiring the procuracy to investigate when a complaint was filed, effectively forcing it to achieve at least a closer approximation of informational parity with the ministry.64 The Duma voted it down, 147 to 118.65

  Though aimed in the right direction, Maklakov’s change seems unlikely to have been enough to turn officials’ potential criminal responsibility into a powerful sanction. Yes, the procurators were attached to the courts, but they were appointed by the government, and their functions were classically executive: initiating investigations and cases on behalf of the state. So solidarity among officials, arising from a similarity in viewpoint, seems likely to have stretched across the divide between procurators and other state officials. Inclusion of the procuracy in the courts (an aspect of Russia’s adoption of civil as opposed to common-law traditions) obscured rather than altered the affinity between the procuracy and the rest of the executive.

  Another ministry bill, this time dealing with court authority to award compensation, gave Maklakov a more promising opening. Here he regarded the committee bill as merely saying that the Duma was convinced that everything was fine on the subject. In fact, he showed, available remedies were very limited. Although the Third Duma had adopted a law obliging the state to award compensation for injuries inflicted by revolutionaries, a Senate ruling had almost wholly sheltered the treasury from liability for the unlawful acts of officials.66 Maklakov also pointed out that the system had an internally inconsistent system for answering the question of whether an official was truly acting for the state. If a citizen forcefully resisted an official’s unlawful act, the state (via the courts) did not “withdraw its protective arms” from the official, but regarded the resisting citizen as a criminal, the official as supreme. Yet if the official’s illegal act inflicted damages on the citizen and the citizen sought relief against the state, the state flipped, viewing the official as just a private citizen, so that his conduct was no responsibility of the government.67

  And in cases involving complaints directly against government officials, remedies were at best spotty. In many cases the law called for some sort of mixed tribunal, as if judges could not, without the help of specialists, figure out if the conduct in question was lawful. Worse, the Senate had begun to systematically take the view that the courts lacked competence to decide a case whenever it posed issues of state security—an elastic concept that could easily encompass a broad range of cases. Apart from those problems, there were a host of complexities in identifying the correct defendant, with a great risk that the statute of limitations would run while the plaintiff struggled to find him. Maklakov suggested that Russia should instead follow the model of Congress Poland, which enjoyed a special institution for compensation out of treasury funds for those injured by the state, thereby alleviating the plaintiff’s problems of identifying a particular offender and being able to collect on a judgment. (The Polish provision was a residue of the era when Poland had an independent legislature, and Maklakov’s citation was a rare instance of a Russian political figure holding up Polish practice as a model.) Alternatively, he suggested, the Duma might adopt a rule that the statute of limitations should be tolled (that is, not run) when suit was filed against the wrong defendant.68

  Maklakov proposed that the Duma adopt a resolution to conclude the then-current discussion (in Russian legislative parlance, such a closing resolution was called a “formula of transition” or formula perekhoda) with a direction to the judicial reform committee to develop a bill on official liability addressing the problems he had identified: establish treasury responsibility, solve the problem of the plaintiff who has difficulty identifying the right official to sue, and assure that the cases are resolved by a real court. But the vote was deferred until after the debate on specific articles and apparently never taken.69 So the reform effort lapsed.

  Would better judicial remedies for administrative lawlessness really have helped matters? Dominic Lieven expresses doubt about the usefulness of giving people rights against the police in late imperial Russia, arguing that controlling the “unimpressive lower ranks of the police force” would be impossible if they were “threatened with legal responsibility for their activities, protected by laws or regulations behind which they could find excuses for inaction, or confused by any but a simple line of command to their ministerial chief.” The argument appears to be that they were of such low quality that they could not have handled the conflicting demands of the law and of their superiors. In a slightly more extreme formulation, he suggested that by the twentieth century it was impossible to “subdue the revolutionary movement by wholly legal means.”70

  Lieven’s premise appears to be that reformers sought a system in which the line officers (the “unimpressive lower ranks”) would take the fall for illegalities even when they acted under orders from their superiors. But a scheme of government liability would not necessarily subject the individual policeman to liability under those circumstances. Liability of the state would presumably lead to consequences for individuals in the executive (reprimands, pay cuts, loss of promotional opportunities, and so on), but at least in a well-designed system those consequences would fall on the parties responsible—the lower ranks where they exceeded their superiors’ instructions or established norms, the higher levels when their orders were unlawful. Of c
ourse still higher officials might be tempted to cut their subordinates some slack, but a steady rain of adverse judgments would surely give the upper echelons incentives to assure a reduction in unlawful orders and to provide training to get the best out of all ranks. Orson Welles once observed, “Only in a police state is the job of a policeman easy,” and any kind of accountability would make their lives harder. But the price seems reasonable—unless Russia had really come to such a pass that only the lawlessness of a police state could have saved it from the lawlessness of revolutionary terrorism.

  Indeed, genuine assurance that state power would be applied to citizens only through the screen of a neutral, educated, independent judiciary, empowered to order reimbursement for victims of lawlessness, would at least have given citizens the sense that the state had concern for their welfare. Or so it would seem, unless persistent government lawlessness was truly the only way forward for Russia.

  CHAPTER 12

  Peasant Rights

  IN THE EARLY TWENTIETH CENTURY about 90 percent of the Russian people were peasants. Thanks to the long history of serfdom and the incompleteness of emancipation in 1861, they lived in legal, political, and social isolation. Their rights in the land they tilled were different from the property rights of any other citizens. And their relationship to provision of basic government services was special: they performed, without payment, all the physical work needed to produce and maintain local rural roads and other public goods—the benefits of which were shared by all rural residents—and had almost no voice in the decision-making. A serious reform of the Russian state would have to change all this, and change it radically. Maklakov saw the peasants as the “national wealth,” and argued later that one of the monarchy’s two great sins was its failure to foster that wealth.1