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In matters of law, in its institutions and in symbolic remarks, the tsarist elites represented themselves as conquerors arriving from afar and forcing a strange culture of discourse upon the people. However, the striving for homogeneity under the law was to remain an unfulfilled ideal. Justice which does not arise by consensus can be imposed, but it cannot be permanently installed. Russian law was imported from abroad, with no consideration taken for home-grown traditions. Its concepts addressed judges and officials, but not the population, for whom the law was either unattainable or impossible to understand. What the reformers considered modern was, in the experience of the population, a negation of their habits. It was deadly. To persist, under these circumstances, in maintaining the validity of standards which could not be fulfilled meant to undermine respect for the law.9

The judicial reform reinforced the legal dualism which separated the elites from their subjects, rather than overcoming it, as the programme of the reformers had intended. Why? Because it was unable to produce any uniform system of laws. For the ordering function of law consists in imparting knowledge of what one can expect of others and of oneself, and which expectations will win societal support and which will not. As Niklas Luhmann has put it, uncertainty of expectation is much more unbearable than the experience of surprises.10 Wherever the state’s writ runs, its standards must be unconditionally accessible and enforceable; the legal claims of the state and the expectations of justice on the part of the population must converge, for justice to prevail. If the law is no longer respected or implemented, it will be replaced by immediate forms of confidence confirmation. And so it was everywhere in the empire, wherever varying possibilities of providing meaning for one’s life did not come into touch with one another, wherever the state’s law and its system of justice either were not articulated or else were rejected. In short, the judicial reform met the expectations of the urban upper strata but had nothing to say to the lower classes of the empire.

The reformed judicial system and the peasants

The creators of the judicial reform believed in the power of institutions. There was no doubt that good institutions would develop the appreciation of law

9C. Schmidt, Sozialkontrolle in Moskau. Justiz, Kriminalitat¨ und Leibeigenschaft 1 649–1 7 85

(Stuttgart: Steiner Verlag, 1996), pp. 394–406; R. Wortman, Scenarios of Power: Myth and Ceremony in Russian Monarchy, vol. I: From Peter the Great to Nicholas I (Princeton: Princeton University Press, 1995), pp. 42–83.

10N. Luhmann, Das Recht der Gesellschaft (Frankfurt: Suhrkamp, 1995), pp. 131–2, 151.

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and order in the people. No institution embodied the hopes of the reformers as thoroughly as did trial by jury (sud prisiazhnykh). The jury court was, they believed, a characteristic of ‘civilised nations’, an ‘ornament’ (ukrashenie) of the court system. It was the ‘palladium of the personal liberty and political independence of the people’, as the legal scholar Ivan Foinitskii formulated it in his textbook on the law of criminal proceedings published in 1910.11 The Russian reformers too had devoted themselves to this ideal of political liberalism. The jury court was, they believed, a vehicle for the political mobilisation of the subjects. Wherever citizens sat in judgement over their peers, they set limits to the capriciousness of the absolutist state. Jury courts and democracy were synonymous. In Russia, however, the jury court was primarily an instrument for educating and civilising the peasants. The reformers dreamt of overcoming the cultural dualism which characterised the system of serfdom. Now, former serfs should not only share the jury box with their former lords, they were to be allowed to sit in judgement over them in court as well. ‘All were to serve a common cause, both the poor and the rich’: thus Senator Berendts recalled the first steps of the new courts. Anatolii Koni, Russia’s most well-known jurist, saw the jury court as a place where the upper strata would not only come into contact with the peasants, that ‘mysterious unknown’, but where the peasants too would learn to respect the rights of their fellow men and the laws of the state.12 This was primarily of importance because the government had left the handling of trivial civil and criminal cases in the hands of rural village justice. The reformers hoped that the juryman would carry enlightened justice even to the village, and so contribute to the disappearance of legal dualism from Russian reality. In short: the ideal of the jury court, like that of the conscript army, was to turn peasants into citizens.

At first, the expectations of the reformers seemed to be fulfilled in the large towns, not least perhaps because the urban population actually did assemble in the jury boxes. However, beyond the major cities, the peasants remained among their peers, because the educated and those of means declined civic duties. For being called to jury duty meant being present in court until the end of the proceeding, which might drag on for as long as two weeks. However, by

11 Foinitskii, Kurs, vol. I, p. 359; J. Baberowski, ‘Europa in Russland: Justizreformen im ausgehenden Zarenreich am Beispiel der Geschworenengerichte 1864–1914’, in D. Beyrau and M. Stolleis (eds.), Reformen im Russland des 1 9. und 20. Jahrhunderts. Westliche Modelle und russische Erfahrungen (Frankfurt: Vittorio Klostermann, 1996), pp. 151–74.

12A. F. Koni, Za poslednye gody (St Petersburg: Suvorin, 1898), p. 337; E. N. Berendts, ‘Vliianie sudebnoi reforme 1864 g. na gosudarstvennyi i obshchestvennyi byt’ Rossii’, in Sudebnye ustavy, vol. II, pp. 728–30; I. G. Shcheglovitov, ‘Novyia popytki izmenit’ postanovku prisiazhnago suda v zapadnoi Evrope’, in Sudebnye ustavy, vol. II, p. 162.

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holding its sessions in remote provincial towns, in dilapidated buildings with unbearable hygienic conditions, the court placed an unreasonable imposition on members of the higher strata, which they tried to escape at all costs. Such shirking of duty was admittedly only possible because the autonomous local administration did not prevent it. On the contrary: the zemstvo (local elected assembly) commissions responsible for drawing up the jury registers released many privileged persons from the rosters, while others were not entered on them in the first place. The zemstvo usually left the preparation of the lists to the clerks of the marshals of the nobility. These did their best to ‘free, as far as possible, the most highly developed and most educated persons from the practice of jury duty’, as Minister of Justice Dmitrii Nabokov reported indignantly to the State Council in 1884.13 Thus it came about that numerous mentally ill people, ‘dead souls’, blind men, deaf-mutes and foreigners appeared in the juror lists in the District of St Petersburg at the end of the 1870s. In one district of Tver, the autonomous local administration did not even shrink from entering persons onto the lists who had already died in 1858, eight years before the opening of the first courts. And because the privileged classes turned a deaf ear to the call of the courts, the peasants were forced to shoulder the entire burden of this civic duty. In the rural regions, the jury courts became peasant assemblies, with 85 per cent of the jurors illiterate. To hope for an ‘enlightening effect’ of jurisprudence was in effect to trust in the peasants to ‘civilise’ themselves in the courts.14

Yet to be called to jury duty was to be pressed into corvee´ service – or so at any rate it seemed to the peasants, who were unable to escape the civic duty which the reformers demanded of them. Although the district courts ‘travelled’ from one district town to another to reduce the sizes of the areas covered, this was cold comfort for the peasants, who still had to trudge as much as 50 kilometres, or even more, to reach the town where the court was located. There, their real problems started, for the impoverished peasants could usually pay neither for their accommodation nor for their food. In some places, they would take jobs as woodcutters, construction workers or gardeners during court session recesses, they would beg in the streets for alms, and if the judges did not provide them with accommodations, sleep in the open. Often judges were forced to release emaciated jurors

13RGIA, Fond 1149, op. 10 (1884), d. 58, l. 10; S. S. Khrulev, ‘O sposobe i poriadke sostavleniia spiskov prisiazhnykh zasedatelei’, Iuridicheskii vestnik 16, 5/6 (1884): 212.

14RGIA, Fond 1405, op. 73, delo 3655b, l. 15, d. 3656a, ll. 23, 189; A. F. Koni, ‘Prisiazhnye zasedateli’, in A. F. Koni, Sobranie sochinenii (Moscow: Iuridicheskaia literatura, 1966), vol. I, p. 334.

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from their duties, especially if the sessions of the court coincided with harvest time.15

But it was not only the poverty of the peasants which was a heavy burden on the jury courts. Different worlds met in court – that of the jury and that of the jurists. Public prosecutors, lawyers and judges spoke a language which the rural jury did not understand. They understood nothing, and yet were to decide everything: not only the question of whether the defendant had committed the deed, but also whether he was to be found guilty as charged. The public prosecutor of the Kherson District Court complained about this as early as 1869, immediately after the introduction of the reformed judicial system in that province. The jurors, he wrote, were not only incapable of judging the evidence, they could not even understand ‘what was going on in their presence before the court’.16 As a result, rural juries acquitted defendants if they were unsure whether they had understood the facts correctly, or if they had fallen asleep in the courtroom from exhaustion. And where they had to share the jury box with members of the privileged classes, they usually did what these asked of them. At the Moscow District Court, a professor regularly forced the rural jurors with whom he sat in the jury box to find the defendants guilty; otherwise, he threatened the peasants, the court would inflict ‘terrible punishments’ on them. The rural jurors stated that they had ‘been afraid of the uniformed jurists and of the gentlemen’ who had sat in the jury box with them. They had, a municipal juror recalled, viewed the call of the court not as a service of honour, but as forced recruitment.17

Wherever the peasants composed the entire jury, rural customary law prevailed. From the jury boxes of the tsarist courts, the rural jurors waged a legal battle against the law of the state. They not only rejected the written laws and thus paralysed the execution of jurisprudence, but also raised customary law to the level of the standard of justice. The state laws, to them, expressed an understanding of conflict resolution of a strange world to which they did not want to submit. The law of the peasants was personalised, not abstract; it referred to the morals, not to the deeds, of the perpetrator. The social status of a perpetrator, his past and its way of life often were of greater importance

15N. Timofeev, Sud prisiazhnykh v Rossii (Moscow, 1881), pp. 134–5, 152–5; N. I. Astrov, Vospominaniia (Paris: Panin, 1940), pp. 211–12; S. P. Mokrinskii, ‘Sud prisiazhnykh’, in Sudebnye ustavy, vol. II, p. 136; V. R. Zavadskii, ‘V zale zasedanii s prisiazhnymi zasedateliami. Iz otchetov revizora’, ZMI 2, 3 (1896): 114.

16Svod zamechanii o priminenii na praktike sudebnykh ustavov (1869–70), pp. 22–3.

17Timofeev, Sud prisiazhnykh, pp. 86, 301–8; N. Tsukhanov, ‘O nedostatkakh nashego suda prisiazhnykh’, ZGUP 11, 2 (1882): 94, 99–100; Zavadskii, ‘V zale’, 120–1, 125–7; V. F. Deitrikh, ‘O sude prisiazhnykh’, ZMI 1, 6 (1895): 3–4, 7; Mokrinskii, ‘Sud prisiazhnykh’, p. 148.

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to the peasants than the crime itself. In judging an offence, they distinguished between sins, for which only God’s punishment would apply, and crimes. Thus the takeover of manor land which was not cultivated by its owners was a sin; theft of peasant property however, was a crime. Where state law punished such sins, it met with disapproval in the villages. Peasants and officials perceived different crimes; hence they also had different concepts of law. It was also important in the village to mete out punishment in such a manner that victims and perpetrators could continue to live together. Rural common law was therefore oriented towards compensation, whereas the state required punishment. The village communities usually did not even approve of state sanctions if they were convinced that a criminal offence required punishment. They hid the criminal offences from the state’s investigating magistrates whenever possible and administered punishment on their own, informally, by beatings or other forms of humiliation. Ultimately, the reintegration of the perpetrator was always the ultimate goal, for who in the community ultimately really had an interest in throwing indispensable workers into prison? The peasants only turned to extreme measures when criminals threatened their existence – if robbers, arsonists or horse thieves attacked their villages and took their personal belongings. In some areas, such as in Siberia, gangs of runaway prisoners terrorised the population without the police authorities’ being able to put a stop to them. And because the authorities could not control crime, and the regular justice system punished robbery and theft with relatively mild sentences, the peasants turned to lynch-law for robbers and horse thieves. If the local state authorities learned of people thus taking the law into their own hands, they would have the ringleaders arrested and brought to trial. Obviously, this destroyed any respect for state law, which was thus proven to be a blunt sword against robbers and professional criminals, but an uncompromisingly tough weapon against the peasants’ informal justice.18

That, too was the case of violent village crime, which in the perception of educated public opinion gained in intensity after the end of the nineteenth century, because it became visible to the elites with the immigration of peasants to the large cities. The seasonal workers from the villages were crowded together in the small spaces of the workers’ barracks, factories and bars, which

18S. P. Frank, Crime, Cultural Conflict, and Justice in Rural Russia, 1 85 6–1 91 4 (Berkeley: University of California Press, 1999), pp. 115–44, 243–75; C. Frierson, ‘Crime and Punishment in the Russian Village: Rural Concepts of Criminality at the End of the Nineteenth Century’, SR 46 (1987): 55–69; C. D. Worobec, ‘Horse Thieves and Peasant Justice in Post-Emancipation Russia’, JSH 21 (1987): 281–93; P. Czap, ‘Peasant Class Courts and Peasant Customary Justice in Russia, 1861–1912’, JSH 1, 2 (1967): 149–78; V. V. Tenishev,

Pravosudie v russkom krest’ianskom bytu (Briansk, 1907), pp. 47–54.

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became the scenes of a kind of violent crime which was unknown to the educated citydwellers: ritualised mass fights, brawls between drunken peasants, rape and manslaughter – all that was being brought in from the village to the city. Where there were no hospitals, doctors, police or civil servants, the village and the urban workers’ housing estates were left to their own devices. Violence became a cultural resource available to all. Moreover, belief in witches and magicians, miracles and conspiracies also survived in this environment. How else could murderous deeds have been justified by the claim that the victim was a witch or a magician, if the peasants had not been convinced that supernatural forces ruled their lives? In short, the violent exorcism of devils from human bodies, the killing of horse thieves, robbers and witches, the theft of property and the everyday practice of physical violence was, in the view of the peasants, not criminal, at least as long as such acts could be fitted into their view of the world.19 And it was the jury courts which lent expression to this situation of legal turmoil which separated the elites and the people from one another.

The jury courts did not overcome the traditional legal dualism; they proclaimed it. The peasants in any event had no concept of the enlightened legal ideas of the judicial officers, and their decisions as jury-members of the state courts were no different than they would have been at a village assembly. Thus, while sectarians, blasphemers or robbers and thieves who had stolen peasant property could hope for no mercy from such juries, killers, rapists, hooligans and those accused by the authorities of having cut wood in the forests of the nobility or resisted the orders of state authorities were acquitted in a large numbers, sometimes even after they had confessed their guilt. In no other country did juries acquit more frequently than in Russia. In 1883, 45.5 per cent of all defendants brought before jury courts in the tsarist empire were acquitted; in the juridical districts of Odessa and Kherson, the figure for that year was 55 per cent.20 And since the defendant’s fate depended on the venue and social composition of the jury, the capriciousness which had been believed to have been overcome returned to the justice system. Jury verdicts were final, no appeal was possible. They could only be contested through a cassation

19A. A. Levenstim, Sueverie i ugolovnoe pravo (St Petersburg, 1899), pp. 36–7; E. I. Iakushkin, ‘Zametki o vliianii religioznykh verovanii i predrassudkov na narodnye iuridicheskie obychai i poniatiia’, Etnograficheskoe obozrenie (1891), no. 2: 1–19.

20RGIA, Fond 1405, op. 82, d. 372, l. 70; N. S. Kapustin, Statistika suda prisiazhnykh. Sbornik pravovedeniia i obshchestvennykh znanii (St Petersburg, 1894), vol. III, p. 250; A. K. FonRezon, ‘O nashem sude prisiazhnykh’, Russkii Vestnik 182, 3 (1886): 58; E. N. Tarnovskii, ‘Otnoshenie chisla opravdannykh k chislu podsudimykh v evropeiskoi Rossii za 1889– 1893 gg. Sravnitel’no-statisticheskii ocherk’, ZMI 3, 9 (1897): 172.

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complaint at the Criminal Cassation Department of the Senate, if the public prosecutor or the attorney claimed that procedural errors had occurred.21

This popular justice contradicted the elites’ concept of justice. The reformers who dreamt of a self-civilising process of the peasantry in the jury box could not ignore this fact. ‘Instead of a state court with participation by representatives of the people, we have got a people’s court with participation by representatives of the state.’ Thus the public prosecutor of the St Petersburg Judicial Chamber, V. F. Deitrikh, described the dilemma of the Russian judicial reform.22

Like the jury courts, the justices of the peace too were to have been an example to the peasants. Justices of the peace were officials elected by the local self-administration. As such, they served not only state law, but also the interests of the ‘society’ in whose name they administered justice. For the reformers, it was important that the local justice system impose mild punishments and issue verdicts in civilian and criminal proceedings which fitted in with the common law of the rural population. For this reason, the legislation also therefore assigned to the justices of the peace the authority to solve conflicts by an arbitration procedure.23 In the cities, the justices of the peace quickly won the confidence of the population by adjudicating in a way which publicly demonstrated their indispensability. The first justices of the peace came from the ranks of the reformers and conveyed a feeling of legal fairness to the municipal population without which society cannot continue to function.24 In the rural regions, however, the reformers failed to achieve their goal of changing the legal consciousness of the peasants through the institution of the justice of the peace. Although the number of the trials rose steadily, too, in the provinces, and although wherever urban fashions and attitudes enriched rural life the institution of local justice was no longer suspected of

21Uchrezhdenie sudebnykh ustanovlenii, §§ 81–102; Ustav ugolovnogo sudoproizvodstva, §§ 646–915; Foinitskii, Kurs, vol. II, pp. 547–57; S. F. Mal’tsev, ‘Kassatsiia opravdatel’nykh prigovorov’, ZMI 5, 10 (1989): 122–41.

22Deitrikh, ‘O sude prisiazhnykh’, 18.

23M. I. Brun, ‘Mirovoi sud po sudebnym ustavam Aleksandra II’, in Vybornyi mirovoi sud. Sbornik statei (St Petersburg, 1898), pp. 1–18; S. P. Mokrinskii, ‘Vybornyi mirovoi sud’, in Sudebnye ustavy, vol. II, pp. 1–64; N. N. Polianskii, ‘Mirovoi sud’, in Davydov and Polianskii, Sudebnaia reforma, vol. II, pp. 172–291; Foinitskii, Kurs, vol. I, pp. 207–339; V. A. Maklakov, ‘Local Justice in Russia’, RR 2 (1913): 127–62; Baberowski, Autokratie, pp. 247–53; T. Pearson, ‘Russian Law and Rural Justice: Activity and Problems of the Russian Justices of the Peace’, JfGO 32 (1984): 52–71.

24A. E. Nos’, Mirovoi sud v Moskve. Ocherki razbiratel’stva u mirovykh sudei (Moscow: Izd. Cherkesova, 1869), vol. I; V. Volodimirov, ‘Mirovoi sud v Peterburge’, ZGUP 14, 5 (1884):

1–58; Petrogradskii mirovoi sud za piat’desiat let 1 866–1 91 6, 2 vols. (Petrograd, 1916); Koni, ‘Novyi sud’, 288–304.

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being an instrument of state arrogation of power, the peasants nonetheless usually avoided the justice of the peace. As elected officials of the local selfadministration, justices of the peace were considered to represent the will of the majority group in the zemstvo, and thus to serve the interests of influential landowners. However, local justice was not only at the service of influential interest groups in the province. It often remained unapproachable to the peasants, at least in the larger provinces, because its venue was generally located in the district town. The originally planned deformalisation of the proceedings, too, remained nothing more than an unredeemed promise. It could not be realised, simply because the legal constitution not only allowed appeals or cassation complaints against verdicts of the justices of the peace at the Assembly of Justices of the Peace (s”ezd mirovykh sudei), but also assigned to the Senate the competence of ruling on cassation complaints against verdicts of the assemblies in the last instance. In this way, the rights of the subjects were to be protected, the capriciousness of the judges restricted. But cassation presupposed that the justices of the peace observed the formal regulations and kept court records of all stages of the proceedings. Complying with the formal procedures was the only way to win such an appeal. One had to justify the complaint, in writing and with reference to the legal stipulations upon which it was based. However, the peasants were hardly ever capable of doing so. They had to call on the help of so-called ‘underground lawyers’ (podpol’nye advokaty) who formulated complaints in their names, and also substantiated them. However, the peasants only seldom gained from such services. It was on the contrary the underground lawyers who profited from the written-complaint-based system. They persuaded the peasants to make hopeless complaints and had themselves paid princely sums for their ‘help’.25

With the separation of powers, which was thoroughly implemented even at the local level, competing state offices mushroomed in the districts and battled each other for influence. The peasants, of course, had no idea what the concept of separation of powers meant. They were sure it meant no protection of their rights, but rather a weakening of those authorities who knew how to

25Vysochaishe uchrezhdennaia komissiia dlia peresmotra zakonopolozhenii po sudebnoi chasti. Podgotovitel’nye materialy (St Petersburg, 1895), vol. X, pp. 1–9, 19–25; V. K. Sluchevskii, ‘Iz pervykh let zhizni sudebnykh ustavov’, ZMI 20, 2 (1914): 181–233; P. N. Obninskii, ‘Mirovoi institut. Sudebno-bytovoi ocherk’, Iuridicheskii vestnik 20, 2 (1888): 400–15; I. P. Zakrevskii, ‘O zhelatel’nykh izmeneniiakh v sudebnykh ustavakh’, ZGUP 11, 2 (1882): 17–57; Mokrinskii, ‘Vybornii mirovoi sud’, pp. 20–30; Polianskii, ‘Mirovoi sud’, pp. 218–25; V. Fuks, Sud i politsiia (Moscow: Universitetskaia tipografiia, 1889), vol. II, pp. 100–3; M. V. Krasovskii, ‘O nedostatkakh nyneshnago ustroistva mirovykh sudebnykh ustanovlenii’, ZGUP 18, 4 (1888): 30–57; W. E. Pomeranz, ‘Justice from Underground: The History of the Underground Advokatura’, RR 52 (1993): 321–40.

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