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Law, the judicial system and the legal profession

jorg baberowski

Reform

The 1864 judicial reform created Russia’s first constitution. When Alexander II signed the decree for the introduction of the judicial reform in November 1864, he delivered the death-blow to the autocracy. Although the tsar did not immediately recognise these consequences, educated public opinion certainly entertained no doubts in this regard. The judicial reform limited the authority of the monarch, since it separated the judiciary from the legislative and executive institutions, and confirmed the principle of judicial independence and tenure as a matter of law. But the reform of course went even further. It broke with the estate-based system of justice, as it had been promulgated by Catharine II at the end of the eighteenth century and set forth the equality of all subjects before the law. At least de jure, Russia was transformed into a state under the rule of law on the European model. For nothing remained either of the secret and inquisitorial methods which had been practised by lay judges in the estate-based courts.1 The long-familiar practices of Western Europe now came to Russia as well. No one was any longer to be punished for an action which the Criminal Code did not identify as a crime (‘nullum crimen sine lege’), and in civil proceedings, the principle of ‘where there is no plaintiff, neither shall there be a judge’ thenceforth applied.

Not the least of the evils of the old system of justice was the secret and inquisitorial procedure which accorded no rights to the accused. The judges delivered

1On the justice system before the reforms, see N. M. Kolmakov, ‘Staryi sud’, Russkaia Starina 52, 12 (1886): 511–44; V. Bochkarev, ‘Doreformennyi sud’, in N. V. Davydov, and N. N. Polianskii (eds.), Sudebnaia reforma (Moscow: Ob’edinenie, 1915), vol. I, pp. 205–41; I. A. Blinov, ‘Sudebnyi stroi i sudebnye poriadki pered reformoi 1864 goda’, in Sudebnye ustavy 20 noiabria 1 864 g, za piat’desiat let (Petrograd, 1914), vol. I, pp. 3–101; J. LeDonne, ‘The Judicial Reform of 1775 in Central Russia’, JfGO 21 (1973): 29–45; J. Baberowski, Autokratie

und Justiz. Zum Verhaltnis¨ von Ruckst¨andigkeit¨ und Rechtsstaatlichkeit im ausgehenden Zarenreich 1 864–1 91 4 (Frankfurt: Vittorio Klostermann, 1996), pp. 11–38; F. B. Kaiser, Die Russische Justizreform von 1 864. Zur Geschichte der russischen Justiz von Katharina II bis 1 91 7 (Leiden: Brill, 1972), pp. 1–89.

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their verdicts on the basis of police investigation files and in the absence of the defendant. And because the official evidentiary proceedings demanded that confessions be forced, the police could use physical and emotional pressure at their own discretion. Winning in civil proceedings depended on the ability to bribe the chambers clerks who drew up the final verdicts and presented them to the judges for their signatures. In order to remedy this evil, the reformed rules of procedure stipulated oral argumentation and public trials. What the police had determined in their inquiries had to be proven once more in open court. The burden of proof no longer lay with the defendant but with the state prosecutor, who had to publicly prove the correctness of his accusations. Thus was the criminal proceeding transformed from a dialogue between the police and the judges into a dispute between the prosecutor and the defendant. This conflict had to be decided by an impartial court, for the protection of society from crime could only succeed if the rights of the individuals who constituted society were not violated. In the Judiciary Statutes the reformers therefore not only confirmed the independence of the judges, but also introduced the participation of lawyers into criminal and civil proceedings.

In the view of the reformers, the reformed court was primarily a societal court in which not only the judges of the Crown, but also the subjects decided on the application of law. For this reason, they introduced the office of justice of the peace (mirovoi sud’ia) on the British model, for the trial of trivial offences. This officer was elected by the local self-government for the duration of three years. The declared belief in ‘democratic’ justice was demonstrated by the adoption of trial by jury as the standard procedure in the District Court, in other words the first judicial instance (okruzhnyi sud), and the participation of estate representatives (soslovnye predstaviteli) in proceedings against ‘state criminals’, which were conducted in the Judicial Chambers (sudebnaia palata). Verdicts of the justices of the peace and the district jury courts were final, for the voice of the people was to have the last word in judgement. Such verdicts could only be contested by way of a complaint to the Cassation Department of the Senate. The Senate then ruled not on the essence of the matter at issue, but only examined the verdicts of the first instance for procedural errors. If the senators found such errors, they referred the civil or criminal case back to the court of first instance.

The symbolic meaning of these innovations could hardly have been greater, for when had there ever before been an attempt in Russia not only to protect subjects from the arbitrariness of the authorities, but also to let them decide on their own destiny? Unlike in some European states, the principle of the separation of powers did not regulate only the relationship between

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the judiciary and the administration. It was even established within the judiciary itself: judges were freed from the influence of the minister of justice, and lawyers were given a self-administration of their own, independent of the courts.

With the judicial reforms, the functions of the prosecuting attorney’s office, the ‘eyes and ears of the Tsar’, also changed. As officials of the Ministry of Justice, the public prosecutors (prokurory) lost their directive authority over judges and attorneys but received control over the preliminary proceedings of the police. The law nevertheless did not restrict the activity of the public prosecutors to the presentation of the charges. It also assigned to them the legal supervision over the administration; the Ministry of Justice thus grew into the role of a supervisory authority which monitored the compliance of the ministries with the laws of the empire. At least de jure, the autocracy had gone out of existence.2 Contemporaries, too, now understood that the court statutes of 1864 were more than an attempt to replace the system of estatebased justice by modern methods of jurisprudence. The culture within which rulers and subjects operated was shaken. No one saw this more clearly than the liberal jurist Vladimir Nabokov, when in 1914 he recalled the beginnings of the judicial reform. Nowhere in Europe, he wrote, had the discussion about the legal system kindled such passions as in Russia. While some had idolised the legislation, others had abhorred it.3 Admittedly such passions could only be ignited because supporters and opponents of the judicial reform alike held an instrumental attitude towards the law. For them, the law was primarily an instrument of social and cultural change. What issued from the courts was, in their view, not only justice, but also the ‘spirit of the people’. And since the omnipotence of the tsar had not formally been limited, the courts assumed the function of substitute parliaments, in which liberals and conservatives debated Russia’s political future.4

However, the reformed judicial system was not only a political anomaly; it was a stillbirth, because it expressed neither the executive needs of the

2For the text of the judiciary statutes (sudebnye ustavy), see B. V. Vilenskii (ed.), Sudebnaia reforma. Rossiiskoe zakonodatel’stvo X–XX vekov (Moscow: Iuridicheskaia literatura,

1991), vol. IX. For the results of the judicial reform, see Baberowski, Autokratie, pp. 61–93; I. Ia. Foinitskii, Kurs ugolovnogo sudoproizvodstva (St Petersburg: AI’fa, 1996; orig. St Petersburg 1910), vol. I, pp. 59–44; F. Gredinger, ‘Prokurorskii nadzor za piat’desiat let, istekshikh so vremeni ego preobrazovaniia po Sudebnym Ustavam Imperatora Aleksandra II’, in Sudebnye ustavy, vol. II, pp. 197–249; S. M. Kazantsev, Istoriia tsarskoi prokuratury

(St Petersburg: Izd. SPbu, 1993).

3V. Nabokov, ‘Raboty po sostavleniiu sudebnykh organov’, in Davydov and Polianskii,

Sudebnaia reforma, pp. 344–5.

4Perceptive contemporaries already observed this: B. Kistiakovskii, ‘V zashchitu prava’, in

Vekhi. Sbornik statei o russkoi intelligentsii (Moscow: Sablin, 1909), pp. 125–55.

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administration nor the feeling of justice of the population. Certainly, Zarudnyi and other reformers referred continually to ‘Russian’ traditions and the will of the autocrat, in order to convince the political elite of their plans for restructuring the judicial system. Viewed by daylight, however, the ‘traditions’ also drew upon the imaginations of a Europeanised elite which, while it spoke constantly of the will of the people, had no idea what that will might be. The reformed judicial system and the spirit from which it emerged were rooted in the realm of the European enlightenment, where the reformers dwelt, but their subjects did not. In this realm, faith in the power of reason held sway.5

The old system of justice had reflected the heterogeneity of the empire; the new one was designed to overcome it. To this end, the reformers took the latest achievements of European jurisprudence and its application techniques, in order to achieve by procedural means what reality would not deliver. ‘A reasonable law can never cause evil’ – so spoke the spiritus rector of judicial reform, Zarudnyi.6 For the reform commission of the State Chancellery, which was appointed by the tsar in October 1861 to reorganise the judicial system, it thus remained only to design such laws as corresponded to the reasoned concepts of enlightened officials. This is also the reason why the reformers needed only a few months to complete their legislative draft. Once they had convinced the tsar of the necessity of the reform, there was no one left who could have impeded the fulfilment of their plans.7

The task of the judicial reform was to make universal the legal consciousness of the enlightened officials. Another way of putting it would be: the European rule of law as the reformers understood it amounted to the levelling of the empire and its cultures. It was to transform a multiethnic society based on estates into a society of European citizens, and to transform peasants into law-abiding subjects. Europe’s present was to be Russia’s future. And as a late-comer, the empire could learn from the mistakes of Europe.8

5A. F. Koni, Ottsy i deti sudebnoi reformy. K piatidesiatiletiiu sudebnykh ustavov (Moscow: Sytin, 1914); R. Wortman, The Development of a Russian Legal Consciousness (Chicago: University of Chicago Press, 1976), pp. 197–234; W. B. Lincoln, In the Vanguard of Reform: Russia’s Enlightened Bureaucrats 1 825 –1 861 (DeKalb: Northern Illinois University Press, 1982), pp.

102–38.

6RGIA, Fond 1149, op. 6 (1865), d. 42, l. 19.

7On the judicial reform, see Baberowski, Autokratie, pp. 39–60; Kaiser, Die russische Justizreform, pp. 269–406; I. V. Gessen, Sudebnaia reforma (St Petersburg: Izd. P. P. Gershunina, 1905), pp. 31–129; Nabokov, ‘Raboty po sostavleniiu’, pp. 303–53; I. A. Blinov, ‘Khod sudebnoi reformy’, in Sudebnye ustavy, vol. I, pp. 102–232.

8J. Baberowski, ‘Auf der Suche nach Eindeutigkeit: Kolonialismus und zivilisatorische Mission im Zarenreich und in der Sowjetunion’, JfGO 47 (1999): 482–504; D. Yaroshevsky, ‘Empire and Citizenship’, in D. Brower and E. Lazzerini (eds.), Russia’s Orient: Imperial Borderlands and Peoples, 1 7 00–1 91 7 (Bloomington: Indiana University Press, 1997), pp. 58–79.

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