The Reformer

by Stephen F. Williams

  The rules governing the continued survival of a decree under Article 87 meant that maneuvering such a bill through the Duma was a game of legislative chicken. The government’s decision to offer the bill showed that it wanted the 1906 reform’s continuation, but obviously it would never countenance reforms that radically transformed Russia’s social system. Deputy Minister of Internal Affairs Aleksei Aleksandrovich Bobrinskii went out of his way to say that the bill did not dissolve the peasant estate and that the government had no intention of doing so.20 As Maklakov saw it, the strategic context imposed two limits on how much the bill could add to the 1906 decree. First, the bill could not address problems whose solution would require additional, highly complex new legislation;21 this meant that the most vitally needed change—creation of a new, all-estate system of village governance—was off the table. Second, the bill should adopt only extensions that both fitted the 1906 decree’s basic concept (namely a reduction in the adverse effects of peasants’ status as a separate estate) and that fitted the concept so well that the government would be embarrassed to reject the bill or have the State Council reject it. Rejection would deny peasants rights they had enjoyed for a decade unless remedied by the government’s reissuance of the decree under Article 87. As for amendments that didn’t fit the principle of the original decree, Maklakov tagged them “drive-by legislation.”22

  Before we look at the intense conflicts those constraints produced, we should consider Maklakov’s basic pitch for the bill and its key provisions. His report included a lengthy passage from Ivan Strakhovskii’s Peasant Law and Institutions (Krestianskie prava i uchrezhdeniia),23 arguing that among all the special rules relating to peasants there was but a single right—the right, supplied by the state through its rules on allotments and periodic redistributions, to a sufficiency of land.24 The entire system of caste isolation and the legal limits imposed by the peasants’ estate status, argued Strakhovskii, fostered peasant consciousness of this claim to land and made it the central feature of their relationship with the state.25 Isolation led to enmity; exclusive obligations gave rise to thoughts of exclusive rights; and life outside lawful norms stifled respect for others’ rights.26 Treated as wards of the state rather than as citizens, peasants were likely to focus on the entitlement they enjoyed through the allotment and redistribution activities that the state performed in its role as guardian—and guardian not of rights but of advantages provided in its discretion. It was natural for them to think that the solution to at least some of their problems lay in government decrees finishing what the emancipation in 1861 had begun: transferring all of a landowner’s land to his former serfs (or their successors).

  Always sensitive to the way economic change necessitated legal change, Maklakov pointed out that peasants had taken great steps since emancipation toward integration with the rest of society. Many had left the village and moved to the city, and yet retained ties to the village. Treating them as a separate group, assigned to performing a set of tasks under the direction of others, was a legacy of serfdom, under which the serf owners decided what work was to be done, and the serfs did it. Such a scheme was at war with current reality.27

  The 1906 decree and the pending bill enabled peasants to combine receipt of a higher education or holding an official position with retention of membership in a village society, which would include retaining an interest in allotment land as well as retaining a voice in collective decisions made by the peasants they had left behind.28 These reforms also ended the land captains’ powers to arrest peasants for noncriminal behavior and to impose administrative penalties without having to justify their actions in formal proceedings. These key measures would obviously reduce peasants’ isolation and could play a role in facilitating their evolution into citizens enjoying the same sort of rights as any other.

  In an argument aimed at attracting a little right-wing support, Maklakov argued that even those who didn’t care at all for equal rights should see the value of ending peasant isolation—a reduction of their interest in more government-ordered land transfers.29 This brought on a rage from Alexander Kerensky, who offered a snide rephrasing of the committee’s argument. In effect, he claimed, it told the peasants, “You’re free of the land captains’ power of arrest, so forget about your right to an adequate supply of land.”30 But Maklakov was not suggesting any sort of quid pro quo. He was arguing for movement toward a Russia where everyone could properly conceive of himself as a rights-bearing citizen, where peasants would see themselves and others in that light, and where they would both enjoy property rights as citizens in such a community and have reason to respect such rights in others.

  It was obvious that curtailing the land captains’ discretionary power to inflict penalties on peasants would facilitate the peasants’ development as full citizens. For the provisions allowing peasants to secure a higher education or state office, even to become “gentry,” yet to remain members of their village society, the theory was less obvious. The change meant that peasants with drive and ambition would continue to belong to their societies, instead of being cut off as before 1906. Peasants as a whole would benefit from the continued involvement of such people in the village society.

  As a result of the 1906 decree, every village society ceased to be a purely estate institution, even if peasants were a majority of its members.31 This change sharpened the question of equalization of rights. By introducing people from privileged orders into the estate that was assigned all the dirty work, it posed a choice for the decree’s drafters (and for those drafting the bill in 1916): one could equalize rights and duties in village societies, and thus require peasants who were educated or in state service or otherwise had achieved higher status to bear the in-kind obligations of the peasantry (all the local scut work needed for public goods such as roads), or one could release such privileged peasants from these obligations and thus introduce a flagrant inequality among members of village societies. The change to a multi-estate village society not only made inequality among those living in the village obvious but also deprived that inequality of any rationale whatever; its prior rationale had really been little more than the fact that that was the way things had worked under serfdom.32 The decree and the government bill had resolved the question in favor of the privileged peasants, enlarging their privileges to include relief from these burdens. The committee bill, taking advantage of a 1904 Senate ruling that had authorized persons subject to the burdens to get others to perform them by agreement (compare, for example, a U.S. Civil War draftee’s right to hire a substitute), changed the government draft and provided instead that all members of a village society be treated alike (though free, of course, to exercise the options provided by the 1904 ruling).33

  Anomalies in the burdens on village society members who had gone on to state service or higher education were, for Maklakov, a vivid example of a more basic anomaly: that one estate provided most of the local public services all on its own, without compensation, while everyone else enjoyed the benefits scot-free. It underscored the urgency of creating a suitable unit of local self-government, presumably some sort of all-estate township.34 His Report’s introductory words quoted the language of Stolypin in introducing the decree of October 5, 1906, reasoning that relief of the peasants from their special burdens required reform of local government.35

  Indeed, in the years between the initial decree and Maklakov’s efforts in June 1916, there had been ongoing efforts to implement the basic idea of an all-estate township government. These had generally been stymied by the clash between landowner desires for overwhelming voting advantages and strong bureaucratic powers of supervision over the actions of the local government, on the one hand, and the Kadet preference for a more democratic franchise and less state supervision, on the other. Negotiations on the subject continued under Stolypin, and a compromise bill passed the Duma in May 1911. Reform efforts continued after his assassination, in the period when Makarov was minister of internal affairs, but ground to a halt when Nikol
ai Maklakov assumed that post in December 1912. In 1914 a State Council committee amended the Duma bill to make it less reformist, but the State Council itself, presumably in part because of Nikolai Maklakov’s lack of enthusiasm, refused by a narrow vote even to discuss the bill.36 In August 1915, two months after Nikolai’s dismissal as minister, the Kadets reintroduced the bill that had earlier passed the Duma. It was referred to the committee on local self-government, where it languished.37

  The bill pending in June 1916 could not—without stepping out of the framework created by Article 87 and losing any serious prospect of approval by the State Council—attempt to create an all-estate government. But Maklakov plainly saw the Duma’s consideration of the bill as a preface to genuine political integration of peasants and privileged. But for the preoccupation with the war, his advocacy of such a local government might have led to productive legislation.

  Much of the Duma debate arose out of the clash between the limits on how far the Duma could go in extending the 1906 decree (not extensions requiring significant new legislation, and not extensions stepping out of the decree’s basic concept, that is, not “drive-by legislation”), as Maklakov saw those limits, and the desire of Duma members to use the occasion to end restrictions imposed on Jews and others classified as “non-Russians” (inorodtsy). Maklakov believed that one couldn’t seriously claim that amendments eliminating restrictions on “non-Russians” belonged to the decree’s concept of relieving peasants of estate-based restrictions.

  But he and the committee could, and did, amend language in the original decree that by a misunderstanding had adversely affected Jews. The Senate had mistakenly read a misplaced phrase, “except non-Russians,” as requiring that Jews be denied passports of indefinite length.38 The Duma’s more unhinged anti-Semites took this correction (or pretended to take it) as a full-scale removal of all restrictions on Jews; by the same token, the left lambasted Maklakov and the bill for failing to do what the anti-Semites pretended the bill did.

  The left, most ardently and frequently represented by Kerensky, never responded directly to Maklakov’s strategic argument for not including full Jewish emancipation. Instead, Kerensky claimed that a failure to emancipate Jews would “set the oppressed against each other.”39 His tag-team partner, Akakii Chkhenkeli, a Menshevik, made a comparable fact-free argument—that the inequality of rights for Jews was based on inequality of rights for peasants.40 He didn’t explain how or in what sense this might be true. Maklakov responded, “Yes, it is our shame that non-Russians do not enjoy the right of state service, our sin, but if you would relieve our non-Russians of this, why would you not lift it from our peasants who have so long borne it? And if we are relieving the peasantry of it, why do you say we are doing nothing?”41 He also turned the strange Kerensky-Chkhenkeli argument around, arguing that relief of the peasants would only strengthen the argument for relief of Jews: “When there are no longer 80,000,000 [peasants] deprived of rights in Russia, then no one will dare say that we must impose limits on 7,000,000 people of another faith. (Applause from the left and center.)”42

  The rightist opponents offered equally curious arguments. The ever reliable Markov II proposed several times that the solution to the peasant problem was to give them the land belonging to Russia’s German, Austrian, and Turkish citizens.43 After proposing this giveaway of others’ rights, he said, “You’re rushing to allow Jews into the peasant village society, but the peasants themselves won’t allow it, because they understand that you want to destroy the peasant estate, destroy Russia, and subject it to Jewish capital.”44 Markov’s performance included a nice, if backhanded compliment for Maklakov. After lumping Kerensky and Maklakov together as “bowing before Great Jewry,” he implicitly acknowledged Maklakov as far more deft than Kerensky at advancing the cause of Jewish emancipation, declaring, “I must say, I don’t fear Kerensky, but Maklakov.”45

  One of the ways that the 1916 bill went beyond the 1906 decree casts an interesting light on rule-of-law reform. Existing law gave a village society the power (subject to confirmation by officials of the Ministry of Internal Affairs) to expel a member for behavior that was “harmful or depraved”—but not criminal.46 Expulsion itself seems bad enough; it turned the victim into a kind of vagrant. But expulsion also typically entailed exile to Siberia.47 Driven mainly by concerns over the effect on Siberia of an influx of rejects from European Russia—including these peasant expellees but also, in much greater numbers, criminals (mostly nonpolitical) and other administrative exiles—the government had in June 1900 adopted a law giving the Ministry more leeway in handling those driven from their villages, allowing it to settle them in places other than Siberia. It also cut out the ability of societies of petty bourgeois (meshchane) to order these expulsions at all. But it left the expulsion power of peasant village societies in place.48 Maklakov’s bill took the step of denying village societies that power.

  The right wing attacked the change, claiming to speak for the interests of the peasantry and exalting peasant judgment on expulsions. (As Rodichev pointed out, when it came to matters of peasant voting rights, the right was not so sure of peasant judgment.)49 Maklakov responded that other estates had their troublemakers, but no one saw that as justifying a rule that would allow them to drive the miscreants to Siberia without a trial, without a conviction, without evidence.50 He noted that Stolypin had promised repeal of administrative exile altogether, and he would have loved to have included such a repeal in the bill; but since it was well outside the scope of the 1906 decree, the main effect of doing so would be to give the bill’s opponents an excuse to oppose it altogether. Thus he had confined the measure to excising this special device for treating peasants lawlessly.51

  But Maklakov didn’t rest his attack on this element of the exile system on the goal of equality between estates. First, he argued, since exile required confirmation by non-peasant authorities, including the land captains, in effect the system enabled the peasants to exile only those whom the authorities wanted to exile. Second, responding to a claim that removing the power of expulsion would stimulate vigilante justice, he argued that in fact the power represented precisely the sort of arbitrariness that would inspire additional vigilantism. It gave peasants a right to denounce each other; it set them at odds with each other; and it enabled the authorities to disclaim responsibility for disorder in the countryside.52

  The debate illustrates a complexity of rule-of-law reforms. It is nice to think that the opponents of rule-of-law reform would be only members of the elite who are typically in the best position to brush the law aside. But peasants were on both sides of this dispute. There were many peasants whose safety or quiet had been disturbed by offenders removed under this power, offenders whose behavior was not criminal or who for any of a number of reasons could not be successfully prosecuted.53 But exposing people to the risk of such expulsion and exile was hardly consistent with the rule of law. It was plain to Maklakov that progress toward a constitutional regime required protection against government arbitrariness even when it might superficially appear to enhance social peace and to protect good citizens from nasty ones.

  In the end, the bill was never presented to the State Council, and thus never took effect. In his writings in emigration, Maklakov analyzed the workings of Article 87 and argued that, in cases where the Duma wanted to add improvements to a decree in the course of its conversion into a statute, it had an advantage: the State Council would be reluctant to reject the amended law and thereby to shoulder responsibility for destruction of the benefits introduced by the decree under Article 87.54 True enough; this was indeed the basis for Maklakov’s addition of improvements to the bill. But his analysis disregarded the simple device by which the State Council could escape the bind, as it did in this very case: inaction, neither accepting nor rejecting the amended bill. This left the original decree in place, without the Duma’s improvements.

  So far this chapter has addressed mainly the substance of the 1906 decree and the 191
6 bill, and the strategic bind faced by Duma members supporting further improvement. But the debate also provided a platform for Kerensky, who in March 1917 would become the Provisional Government’s first minister of justice, and soon thereafter its “Minister-President,” the government’s dominant official. His performance in the debate may be instructive as to what lay ahead for the Russian people.

  Kerensky in fact supported what the bill did.55 To be sure, as we saw in relation to equal rights for Jews, he thought it did not go far enough. Fair enough—to a modest extent his comments in the debate argued the merits of various extensions. But the bulk of his eloquence was devoted to other matters: the unalloyed evil of Stolypin and of the United Nobility; the wondrous quality of the First Duma in comparison to the defects of a Duma elected on the franchise law adopted in the coup of June 3, 1907; and the dereliction of the committee reporter (Maklakov) in failing to recognize these truths.

  In all this Kerensky displayed an indifference to facts and a lack of focus. On the issue of extending equalization to Jews, he argued that the idea of not addressing solutions for Jews and other non-Russians dated back to Stolypin, insinuating that Maklakov was somehow Stolypin incarnate.56 Expatiating on the wickedness of Stolypin (and by association, Maklakov) naturally took him to a discussion of the field courts martial,57 in which he overlooked the fact that Maklakov had led the attacks on that now long-dead institution. (The modern reader, plowing through all this, enjoys a shiver of delight when a voice pops up from the right, shouting, “It’s boring, all this old stuff.”)58

  Kerensky offered no clue as to how that sin of Stolypin had any bearing on the Duma’s turning his October 5, 1906, decree into law, which Kerensky recognized was a good thing to do. The whole effort to tar Maklakov with a Stolypin brush was odd. As Maklakov replied, he had been a determined foe of Stolypin, but felt the need to recognize his service when he accomplished something valuable, such as the October 1906 decree. “For me, to recognize when my opponent is right, to recognize the deserts of my political foe, is a duty of political honor and I have here fulfilled it.”59