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the monarchs themselves, who ultimately had to capitulate to the power of the jurists.38

The justice system as a substitute constitution

The judicial reform embodied the impetuousness and the fresh-start atmosphere of the 1860s. It was the symbol of the attempt to change radically and to Europeanise the legal system. The rule of law was a bill of exchange on a liberal constitution and a forerunner of modern democracy – that was the view of the reformers and their disciples inside and outside the state bureaucracy. Judges and lawyers had embarked on a crusade for the fulfilment of their ideals of a state under the rule of law. ‘It was an activity which seized the soul, a calling, a mission’, wrote Koni in his recollections of those years. The Judicial Statutes were therefore his ‘first love’. During the 1860s and 1870s, court proceedings were celebrated like ‘sacred rituals’, for here, not only was justice delivered, but the political maturity of the subjects was demonstrated. In these trials, judges and public prosecutors presented themselves to society as incorruptible guardians and advocates of the law, who brought light to the benighted provinces. To the educated public, they no longer appeared as representatives of the regime, but as advocates of society. Those with reputations as liberal critics of autocracy chose the judge’s profession, for to be a judge meant no longer to have to obey the orders of the state administration. The study of law came into fashion primarily for those who recognised the political significance of the legal professions. These jurists of the 1860s were the ones who turned the courts into strongholds of liberalism. That was the real dilemma of the autocratic reforms: that with the reorganisation of the state, they at the same time brought an opposition into being.39

No profession had a greater share in this than did the bar. Attorneys not only enjoyed their own self-administration, the Council of Sworn Attorneys (sovet prisiazhnykh poverennykh) which independently and without state supervision handled all questions regarding the education and discipline of the advocates. In court, they had the privilege of free speech, to which no one else in the empire was entitled. The free, self-administered bar was an anomaly in a country

38Baberowski, Autokratie, pp. 429–80.

39Koni, A. F. ‘Novyi sud’, in Koni, Sobranie sochinenii, vol. I, p. 400; G. Dzhanshiev, Epokha velikikh reform (St Petersburg, 1907), pp. 428–50; M. F. Gromnitskii, ‘Iz proshlago (Po lichnym vospominaniiam)’, Russkaia mysl’ (1899), no. 2: 49–71; no. 3: 68–88; no. 6: 1–33; no. 9: 210–50; no. 12: 51–68; V. S. Chevazhevskii, ‘Iz vospominanii o sluzhbe po sudebnomu vedomstvu’, Russkaia starina 167, 7 (1916): 71–80; Sluchevskii, ‘Iz pervykh let’, 185; Nol’de, ‘Otnosheniia’, 492–531.

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which was formally still ruled by an autocrat. No one saw this more clearly than the lawyers themselves. They were, wrote the prominent lawyer M. M. Vinaver about the bar, members of a ‘sacred order’, charged with fulfilling a ‘sacred mission’. The first lawyers considered themselves spokesman of society and defenders of liberty. Advocatus Miles – ‘lawyer-soldiers’ – was the title of a textbook for defence counsels published in 1911, and no slogan could more clearly have epitomised the self-conception of most attorneys.40 However, not only liberals moved into the legal profession. From the outset, it also attracted radical opponents of the tsarist order, and after the turn of the century, leftist extremists. It was surely no coincidence that such revolutionaries as Kerenskii and Lenin had started their political career as lawyers. The extremists among the attorneys tried to change the profession into an association of political struggle, and in some towns they even managed, during the revolution of 1905, to seize power in the bar associations. For the radical political defence counsellors, the courtroom was primarily a platform for the proclamation of the revolutionary world-view. Not only the defendant’s rights, but also his views were defended here. Such attorneys no longer had any conception of law and its function.41

The uncompromising attitude of some lawyers was not due only to the political possibilities which their profession opened up for them. Jurists who came into conflict with the state had no other path open to them but to become courtroom attorneys. And no other alternatives were open, either, to the numerous Jewish jurists, because the government did not allow them into the civil service or on to the bench. Thus, the profession of trial lawyer ultimately became an asylum for unemployed Jewish jurists. Their number increased so dramatically that the government in 1889 introduced a quota system into the legal profession as well. Jewish ‘candidate lawyers’ (pomoshchniki prisiazhnykh poverennykh) could henceforth be admitted to the profession of sworn attorneys

40N. P. Karabchevskii, Chto glaza moi videli (Berlin: Izd. Ol’gi D’iakovoi, 1921), vol. II, p. 15; M. M. Vinaver, Ocherki ob advokature (St Petersburg: Tip M. M. Stasiulevich, 1902), p. 3; L. E. Vladimirov, Advocatus Miles. Posobie dlia ugolovnoi zashchity (St Petersburg: Zakonovedenie, 1911); J. Baberowski, ‘Rechtsanwalte¨ in Russland, 1866–1914’, in C. McClelland and S. Merl (eds.), Professionen im modernen Europa (Berlin: Duncker and Humblot, 1995), pp.

29–59.

41Kistiakovskii, ‘V zashchitu prava’, pp. 125–55; G. B. Sliozberg, Dela minuvshikh dnei (Paris: Imprimerie Pascal, 1933), vol. I, pp. 203–12; N. N. Polianskii, ‘Zashchita i obvinenie po delam o gosudarstvennykh prestupleniiakh’, Pravo (1910), no. 36: 2125; Gessen, Advokatura, pp. 385–426; Karabchevskii, Chto glaza moi videli, pp. 52–3; M. L. Mandel’shtam, 1 905 god v politicheskikh protsessakh. Zapiski zashchitnika (Moscow: Izd. Vsesoiuznogo obshchestva politkatorzhan, 1931); I. Moshinskii, ‘Politicheskaia zashchita v dorevoliutsionnykh sudakh’, in V. V. Vilenskii (ed.), Deviatyi val. K desiatiletiiu osvobozhdeniia iz tsarskoi katorgi i ssylki (Moscow: 1927), pp. 44–71.

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only with the consent of the minister of justice. And since the ministers gave their consent in only a few cases before 1905, most Jewish jurists remained in the status of candidates. Is it any wonder under such circumstances, that numerous Jewish candidates became spokesmen of the radical defence counsels who argued against the autocratic order in the political trials after the turn of the century? One might say that circumstances threw them into the political opposition. At the same time, these circumstances were responsible for the fact that when there was nothing to defend, lawyers turned into blatant profiteers. For lawyers who saw the law merely as an instrument of struggle had no sufficient concept of its formal significance.42

Although the professional standards of the bar deteriorated from the 1880s, and the political conflicts between the attorneys and the administration gained in intensity, the government undertook only moderate interventions. After 1875 the Ministry of Justice refused the authorisation of additional bar associations and assigned the disciplinary oversight of the attorneys in newly established judicial districts to the courts. But in 1904, the government moved away from this position again as well. In view of the radicalism which lawyers exhibited during the political trials during the first Russian revolution, it was undoubtedly strange for the government to impose such a constraining structure upon itself.43

The conflicts caused by the anomaly of an independent judiciary in an autocratic state already appeared immediately after the introduction of the new courts, when judges contested the right of police officers and governors to interfere in judicial matters and went so far as to publicly express their disdain for the power of the state. When political cases were tried, there was open dispute between judges and the administration. This happened for the first time in 1871, when in the trial of the anarchist Sergei Nechaev, the St Petersburg Judicial Chamber acquitted numerous defendants, although the police and the minister of the interior had insisted that all those accused be convicted.44 The presiding judge of the Judicial Chamber, who had not suppressed the political speeches of the lawyers in the courtroom, remained in office, but the emperor forced the minister of justice to turn over the prosecution

42J. Baberowski, ‘Juden und Antisemiten in der russischen Rechtsanwaltschaft 1864–1917’,

JfGO 43 (1995): 493–518.

43Ministerstvo iustitsii za sto let 1 802–1 902 (St Petersburg: Senatskaia tip., 1902), pp. 133–4; Gessen, Advokatura, p. 229, pp. 442–7; J. Burbank, ‘Discipline and Punish in the Moscow Bar Association’, RR 54 (1995): 44–64.

44Nechaev i Nechaevtsy, Sbornik materialov (Moscow and Leningrad, 1931), pp. 159–86; N. A. Troitskii, Tsarskie sudy protiv revoliutsionnoi Rossii (Saratov: Izd. Saratovskogo universiteta, 1976), pp. 129–32; V. D. Spasovich, Sochineniia, 10 vols. (St Petersburg: Knizhnyi Magazin brat’ev Rymovich, 1889–1902), vol. V, pp. 136–9, 148–54, 186.

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of political crimes to the Special Tribunal of the Senate (Osoboe Prisutstvie) in future. The conservatives in the government hoped for more severe verdicts from it. This hope seemed justified at first. Several dozen revolutionary students who had participated in the ‘Going to the People’ to provoke a peasants’ uprising were sentenced to long prison sentences. But even in the Senate, spectacular cases of dropping of charges and of acquittals occurred at the end of the 1870s, primarily in the so-called ‘Trial of the 193’, when the senators refused to comply with government demands for severe punishments. More than half of the accused students were acquitted by the senators in January 1877. The political dispute between the justice system and the administration reached its climax when the jury of the St Petersburg District Court acquitted the revolutionary Vera Zasulich, who had shot the city governor (Gradonachal’nik) Trepov and injured him seriously. In this case, too, Presiding Judge Koni remained in office, but the government transferred the trial venue for terrorist crimes of violence to military courts which, since they administered justice on the basis of the Military Criminal Code, could impose death sentences against terrorists. The military courts made use of this power on several occasions during the early 1880s, although the military jurists who sat on these courts obeyed the government demand for the penalty only reluctantly.45

In August 1881, several months after the murder of Alexander II by terrorists of the Narodnaia Volia (People’s Will), the government issued an ordinance for the protection of state order which enabled it to declare a state of emergency and to impose administrative punishments against troublemakers in the areas where this state of emergency had been established. There were two variants of the state of emergency: ‘reinforced protection’ (usilennaia okhrana), and ‘extraordinary protection’ (chrezvychainaia okhrana). ‘Reinforced protection’ made it possible for the governors to issue decrees for the maintenance of public order and to keep persons who opposed these orders in custody for up to three months. In regions where the Committee of Ministers had imposed ‘extraordinary protection’, governors-general were appointed, who received the right to remove office-holders from their positions and to hand terrorists over to courts martial. Above all, the emergency laws made it possible for the state administration to mete out extrajudicial punishment. It gave the governors-general the right to have troublemakers expelled from the area, or

45 A. Iakimova, ‘Bol’shoi protsess ili protsess 193-kh’, Katorga i ssylka 37, 8 (1927): 7–31; N. S. Tagantsev, Perezhitoe (Petrograd: CTOS tip., 1919), vol. II, pp. 134–51; A. F. Koni, ‘Vospominaniia o dele Very Zasulich’, in Koni, Sobranie sochinenii, vol. II, pp. 24–252; RGIA, Fond 1405, op. 76, d. 7352, l. 1–6; N. A. Troitskii, ‘Narodnaia volia’ pered tsarskim sudom 1 880–1 894 (Saratov: Izd. Saratovskogo universiteta, 1983); Baberowski, Autokratie, pp. 671–722.

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exiled to Siberia for up to five years. A ‘Special Committee’ (osoboe soveshchanie) of the Committee of Ministers, consisting of two representatives each of the ministries of justice and the interior, made the final decision on exile. Unlike penal offenders sentenced by civil courts, these administrative exiles were not deprived of their rights. This made it possible for them to lead a normal life at their places of exile. Thus, lawyers who had been banished to Siberia by the ‘Special Committee’ could continue to practise their professions in exile. To prevent this, the civil courts would have had not only to deprive them of their civil rights, but also to sentence them to more severe punishments in such cases. In this way the authorities avoided a disproportionality of punishment in political cases during states of emergency, which was provided by the Criminal Code.46

Originally the Emergency Laws of 1881 were to apply only for a period of three years, but they were repeatedly extended after expiry, and thus remained in force until the Revolution. They attained real significance during 1905–7, when the government declared a state of emergency in the entire empire to check terrorism and violence. Between the summer of 1906 and the beginning of 1907, Prime Minister Stolypin used the powers which the Emergency Laws gave him to have more than one thousand terrorists sentenced to death by drumhead courts martial (voennye polevye sudy).47

This, however, did not exhaust the possibilities of the state of emergency. It gave the administration the instruments it needed to assert itself against hooligans, pogrom instigators, bands of robbers and rebellious peasants. It was no coincidence that they were first used against peasants and workers in 1882 who had participated in pogroms against the Jews in the province of Ekaterinoslav. The justice system was powerless in such cases, because its task was to prove individual guilt. It could not safeguard public order. The Emergency Laws gave the administration the ability to take vigorous action quickly against troublemakers without having to impose the severe punishments in every case which the Criminal Code provided. In Asian regions

46V. M. Gessen, Iskliuchitel’noe polozhenie (St Petersburg: Pravo, 1908); W. Nabokow, ‘Das aussergerichtliche Strafverfahren’, in J. Melnik (ed.), Russen uber¨ Russland. Ein Sammelwerk (Frankfurt: Rutten and Loening, 1906), pp. 297–315; A. A. Lopukhin, Nastoiashchee i budushchee russkoi politsii (Moscow: Tip. v. Sablina, 1907); D. Rawson, ‘The Death Penalty in Late Tsarist Russia’, RH 11 (1984): 29–58; Baberowski, Autokratie, pp. 702–7; Daly,

Autocracy, pp. 33–40.

47N. N. Polianskii, Epopeia voenno-polevykh sudov 1 906–1 907 gg. (Moscow: Izd. Vsesoiuznogo obshchestra politkatorzhan, 1934); W. C. Fuller, Civil–Military Conflict in Late Imperial Russia 1 881 –1 91 4 (Princeton: Princeton University Press, 1984); N. I. Faleev, ‘Shest’mesiatsev voenno-polevoi iustitsii. Ocherk’, Byloe (1907), no. 14: 43–81.

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of the empire, where the government was waging war against robbers and rebellious tribes, they replaced the regular justice system.

An imperial decree of 12 December 1904 re-established the jurisdiction of the civil justice system in cases of political crimes. Between May 1905 and March 1906, a ‘Special Commission’ met in St Petersburg under the chairmanship of Count A. P. Ignat’ev to consider the fate of the Emergency Laws in constitutional Russia. It resolved in favour of the restoration of the regular procedures of criminal justice. However, it did not advocate the abolition of the Emergency Laws, stating that the state must be given the possibility of maintaining order at all times and at all costs. If ‘special dangers’ threatened, it must be able to repel them. To this end, the authority of the state must be provided with ‘extraordinary powers’, such as those with which ‘Western states’ were also for the most part provided.48 The case could be made that the Emergency Laws were all that made possible the very survival of the reformed judicial system in the first place, for there is no system of order which can be applied to a state of chaos. It may seem paradoxical, but the Emergency Laws were an indication of the transformation towards the rule of law which had by then been effected in the tsarist empire. The government needed a law to suspend the existing legal order, and it mandated itself and its subordinate authorities to observe the procedural rules. It could not simply ignore the system of laws and justify itself by invoking the will of the monarch. Thus, what happened in August 1881 would have been inconceivable without the changes which the judicial reform of 1864 had introduced into Russia.

The government held fast to the principles of judicial reform and saw no reason to revise its attitude, even in 1905, when the judiciary openly took sides against the regime’s power. It renewed its adherence to the principle of the separation of powers after 1905, and it also reaffirmed the independence of the bench and the bar and defended the jury courts against their conservative critics to the end. How can such an attitude be explained? The ministers and higher officials of the emperor were convinced that only a state under the rule of law by European standards was modern, even if its implications might have the effect of destroying order. On the other hand, after 1905, the debate over Russia’s political future shifted from the courts to other public platforms: the parliament, the parties and the press. No one any longer needed a courtroom to proclaim his world-views. At that time, the atmosphere changed among the jurists, too. With the constitution of 1906, judges and liberal lawyers

48RGIA, Fond 1239, op. 16, prilozhenie, d. 1, l. 627; Daly, Autocracy, pp. 36–40; Baberowski,

Autokratie, pp. 767–76.

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had achieved what they had argued for. They lost interest in fundamental radical changes and made their peace with the new order, which had after all protected them from the anger of the people during the revolution. The legal professions ‘normalised’ themselves and became a mirror of ‘society’. Conservatives were now to be found both among the judges and among the attorneys who wanted nothing more to do with the liberalism of earlier years. This normalisation also improved the relationship between the judicial authorities and the government. In brief, the system of laws of the late tsarist empire met the demands of the elites and the urban public for procedures in accordance with the rule of law. Therefore, nobody ever questioned it. But this system of laws remained nothing more than an unredeemed promise until the end of the empire, because it did not know how to communicate with the ‘other Russia’, the lower classes of the centre and the periphery. The rule of law, local self-government and parliamentarism remained a phenomenon of the cities in the European part of the multiethnic empire. They did not strike any roots outside this civil biotope. The bureaucracy tried to dominate the country with instruments which did not correspond to the realities of Russia. All it therefore achieved was that power remained unmediated. The revolution of 1917 was a revolt of the lower classes against the programme for a modern system of order of the tsarist elites. And, as Nikolai Sukhanov recalled in his notes about the revolution, what had been built over the course of three centuries disappeared within ‘three days’.49

49N. Sukhanov, Zapiski o revoliutsii (Moscow: Izd. politicheskoi literatury, 1991), vol. I, p.

126.

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