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ensure them those rights. Nobody respected a judge who might be able to deliver a verdict, but could neither arrest nor punish, and whose verdicts might be annulled by a higher authority. For the peasants, the important thing was that their complaints be accepted and decided upon at one place and by one person. That fact provided the basis for Minister of the Interior Dmitrii Tolstoi’s argument, in 1887, before the State Council, to abolish the institution of justice of the peace.26 If a peasant had something he or she wanted to get done, the peasant called on the ‘powers’ for help. Those ‘powers’ included the local police chief (ispravnik), the landowners and the governors, but not the justices of the peace. And even the emperor in far-off St Petersburg received petitions from all regions of the empire in which peasants requested the help of their ruler. In view of the conditions under which the villagers lived, this behaviour was rational. But that did not help the reputation of the judicial system.

Justice and empire

The administrative and judicial reforms of the 1860s years were based on the conviction that the modern state under the rule of law would remain incomplete without a generally binding system of laws. It was therefore only logical for it to spread rapidly beyond European Russia to encompass the peripheral regions. Initially, the new institutions were established only in the central Russian regions of the empire. They were introduced in 1866 in the districts of the Moscow and St Petersburg Judicial Chambers, and between 1867 and 1871 in the equivalent judicial districts of Kharkov, Tiflis, Odessa, Kazan and Saratov. The judicial reform also came to Poland in 1875, and the government opened court chambers in Kiev and Vilna between 1880 and 1883, and in the Baltic provinces in 1889. In the Asian regions of the empire the reformed courts were set up only later. Although they were already established in Transcaucasia in 1867, they did not spread to Siberia, to the steppe regions or to Turkestan until the 1890s. With the opening of a Judicial Chamber in Tashkent in 1899, the introduction of the reformed judicial system was completed in the empire.27

The judicial reform was an ambitious attempt to subject the empire to a uniform system of laws and thus to remove all estate-based and special religious law systems which still existed. That happened in the 1880s for the first time, when the judicial reform was introduced in right-bank Ukraine,

26 RGIA, Fond 1149, op. 11 (1889), d. 44a, l. 11. 27 Baberowski, Autokratie, pp. 64–5, 339–427.

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Poland, Lithuania and the Baltic provinces. But the new courts, the separation of powers and the public and verbal proceedings were not only a death knell for the old estate-based judicial system, the reformed judicial system also expanded the rights of the rural population vis-a`-vis the land-owning and urban elites, and broke the supremacy of the Baltic-German and Polish elites in the western areas of the empire. Along with the courts and Russian law, Russian judges and judicial officials also came to the western periphery, primarily lawyers and their assistants who settled in the larger towns in Poland and the Baltic region. And because a complaint in court now required knowledge of the Russian language and of Russian law, the services of the jurists brought in from the outside became indispensable. For the native elites, these changes brought loss of control and power which could not be compensated even if they returned as trained jurists to the judicial offices. For the new judges were in the service of the law and did not issue judgements in the name of the estate to which they belonged. Thus, the former elites were transformed into mere ethnic minorities.28

Jury courts were established only in the judicial district of Kiev, but the government refrained from instituting the participation of the people in the judicial system in Poland and the Baltic provinces. The introduction of the jury courts in the Western Provinces was hampered not only by the general ignorance of the Russian language, but also because it was feared that ethnic conflicts might be carried out before the jury courts.29 The central government wanted to avoid this at all costs.

Similar problems arose in the Caucasus, where the judicial reform had already been introduced in 1867, and in Siberia and Turkestan. The courts followed the Russian settlers into the Asian parts of the empire as they emigrated to Siberia and Turkestan in large numbers at the end of the nineteenth century. But the new courts were only established in the larger towns and the junctions where the railroads brought people from distant regions together. Under these circumstances, jury courts could not be introduced even where the population could speak the administrative language, as in Siberia. Extreme distances and a low population density, and especially in Turkestan the multiethnicity

28RGIA, Fond 1149, op. 9 (1882), d. 81, ll. 2–9; N. Reinke, ‘Obshchiia sudebnyia uchrezhdeniia

vtsarstve Pol’skom. Zametki’, ZGUP 8, 11 (1882): 1–10; A. G. Gasman, ‘Sudebnaia reforma

vpribaltiiskikh guberniiakh’, ZMI 20, 9 (1914): 146–69; M. Haltzel, Der Abbau der deutschen

standischen¨ Selbstverwaltung in den Ostseeprovinzen Russlands (Marburg: Herder Institut,

1977).

29Vysochaishe uchrezhdennaia komissiia dlia peresmotra zakonopolozhenii po sudebnoi chasti. Trudy, 9 vol. (St Petersburg, 1895–9), vol. I, pp. 1–4; RGIA, Fond 1405, op. 515, d. 199, ll.

7–11.

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of the population, gave the reformers little room for action. Here justices of the peace were appointed by the minister of justice, because there was no local self-government which might have elected them, and the functions of justices of the peace and of the examining magistrate were combined. These were, of course, not the only obstacles which the justice system faced in the Asian periphery. A major one was the unwillingness of talented jurists to serve in Tashkent, Ashkhabad or the crime capital Baku, where they might expect nothing but deprivation.30

As in Poland and the Baltic provinces, the judicial reform forced the local elites out of their administrative functions. With the jurists from the centre, new laws and procedures came to the periphery, which were displayed in an alien language and in alien symbols. Russian law could be mediated neither linguistically nor symbolically in the Muslim regions, and, because the judges were primarily from European Russia, could only be expressed at all via interpreters. Even in Tiflis and Baku, the melting-pots of the Caucasus, judges and examining magistrates could express themselves only in Russian. Thus neither the defendants nor the judges understood what the other really wanted. This reflected not only linguistic and symbolic misunderstandings.

As the chief procurator of the Senate, Reinke, who was sent to inspect judicial institutions in Tiflis in 1910, put it, proceedings in the courts in Central Asia and in Caucasus were like ‘a cultural drama’. In trials before the Caucasian courts, ‘two civilisations, two world-views, which were mutually exclusive’, collided.31 For Russian law punished what was not seen as criminal in the view of the natives: the bearing of daggers and guns, or murder and manslaughter arising from a blood feud. Where nomads stole the cattle of a clan with whom they were quarrelling to force negotiations about a dispute, tsarist justice imposed prison sentences against the robbers, and in so doing prevented a reconciliation between the parties to the quarrel in a way which would have reflected their own legal traditions. It criminalised what nomads considered the law.32

30RGIA, Fond 1149, op. 6 (1866), d. 101, ll. 109–12; RGIA, Fond 1149, op. 12 (1896), d. 63; ‘O sudebnoi reforme v Turkestanskom krae i Stepnykh oblastiakh’, ZMI 5, 2 (1899): 63–110; ‘Sudebnaia reforma v Sibirii’, ZMI 2, 6 (1896): 145–60.

31RGIA, Fond 1485, op. 1, d. 2, l. 44; M. E. Gegidze, ‘K voprosu o reforme ugolovnogo sudoproizvodstva v Zakavkazskom krae’, ZMI 2, 8 (1896): 37–61; B. I. Okolovich, ‘Ob usloviiakh sledstvennoi sluzhby v okruge Bakinskago suda’, ZMI 19, 8 (1913): 147–76.

32N. A. Dingel’shtedt, ‘Musul’manskii sud i sud’i’, ZMI 4, 6 (1898): 58–81; G. M. Tumanov, Razboi i reforma suda na kavkaze (St Petersburg, 1903); V. Martin, ‘Barimta: Nomadic Custom, Imperial Crime’, in Brower and Lazzerini, Russia’s Orient, pp. 249–70; J. Baberowski,

Der Feind ist uberall¨. Stalinismus im Kaukasus (Munich: Deutsche Verlags-Anstalt, 2003), pp. 41–4.

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Under these circumstances, however, there could be no rapprochement between the two legal spheres. The natives boycotted the Russian courts: by targeted false testimony, designed primarily to lead the examining magistrates astray, and by violent resistance. If they resorted to the Russian courts at all, they instrumentalised them for their own purposes without respecting their authority. In the Caucasus and also in Turkestan, there were de facto two systems of laws which were not connected with each other. At least in Turkestan and in the steppe areas, the government therefore moved away from its plan to subject the population completely to its laws. Although the law stipulated the responsibility of Russian courts in cases of murder, homicide and serious robbery, it left all other cases to the jurisdiction of the local tribal or sharia courts. In Transcaucasia, however, where the administration insisted on imposing its laws but could not in fact do so, the courts succeeded in completely destroying their own authority. As a result, the governors ultimately fell back on the stipulations of the Emergency Laws enacted in 1881, which permitted them to punish by administrative measures what they considered deviant behaviour. As the governor-general of the Caucasus, Dondukov-Korsakov, wrote in 1890, the ‘wildness of the customs’ left the authorities no choice but to use military justice against the natives.33 To sum up, the idea of the European rule of law was led ad absurdum under the conditions of the multiethnic empire, because it set the indigenous elites against the Russian administration without ensuring any homogenisation or ‘civilisation’ of legal views. There was no mediation of ruling power.

The reform of the reform

From its inception, the reformed judicial system was showered with harsh criticism. The conservative Moskovskie vedomosti and its editor-in-chief Mikhail Katkov described the ministers of justice as ‘prime ministers of the judicial republic’. Conservative writers slandered the jury courts as ‘mob justice’, some even demanded the restoration of the obsolete estate-based system of justice. But it was not only conservative ideologues who criticised the justice system. At the beginning of the 1880s, the conclusion that the reform would not survive without in turn being reformed grew, even among jurists. These included, prominently, the chief procurator of the Holy Synod and mentor of Alexander III, Pobedonostsev, who had once been on the side of the liberal

33 RGIA, Fond 932, op. 1, d. 319, l. 43; Baberowski, Der Feind, pp. 42–4.

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judicial reformers.34 During the late 1880s, this led ministers of justice to propose several amendments to the law, designed primarily to cure the disfunctionality of the jury courts. They reformed the jury roster system, subordinating it to the control of the public prosecutors, and forbade the authorities to enter illiterates on to the rosters. Still, the abolition of lay participation in court judgements, which conservative critics had recommended with reference to the German and Italian experience, was not carried out. The jury courts lasted until the end of Imperial Russia, although none of the expectations which the reformers had once placed in them were fulfilled, even after the turn of the century. Not even the independence of the judiciary and of the bar, or the public and verbal nature of the proceedings, were ever really called into question. This was demonstrated in the disciplinary proceedings for judges introduced in 1885 by Minister of Justice Dmitrii Nabokov, which confirmed the liberal principle of judicial independence.35

The conservatives in the government were able to score only one victory, when they succeeded in 1889 with the support of the emperor in abolishing the justices of the peace and substituting for them so-called land captains (zemskie nachal’niki), against the resistance of the ministry of justice and its jurists. The land captains were usually recruited from the same circles as the justices of the peace had been, but combined administrative and judicative functions in one hand. Although the land captains deformalised and simplified procedures, they had a bad reputation among liberal jurists, who considered them uncontrollable despots who made no contribution to the ‘civilisation’ of the peasants but rather removed them from the blessings of justice under the rule of law instead of bringing them closer to it. In 1912 the government not only returned to justice-of-the-peace

34I. V. Gessen, Advokatura, obshchestvo i gosudarstvo 1 864–1 91 4. Istoriia russkoi advokatury

(Moscow, 1914), vol. I, p. 276; V. P. Meshcherskii, Moi vospominaniia (St Petersburg, 1912), vol. III, pp. 253–6; A. E. Nolde, ‘Otnosheniia mezhdu sudebnoi i administrativnoi vlastiami i sud’ba osnovnykh nachal’ sudebnykh ustavov v pozdneishem zakonodatel’stve’, in

Sudebnye ustavy, vol. II, pp. 613–16; K. P. Pobedonostsev i ego korrespondenty. Pis’ma i zapiski

(Moscow: Gosizdat, 1923), vol. I, pp. 508–15; H. Whelan, Alexander III and the State Council: Bureaucracy and Counter-reform in Late Imperial Russia (New Brunswick: Rutgers University Press, 1982), pp. 100–1.

35RGIA, Fond 1149, op. 11 (1889), d. 44a; Whelan, Alexander III, pp. 178–82; T. Pearson,

Russian Officialdom in Crisis. Autocracy and Local Self-Government, 1 861 –1 900 (Cambridge:

Cambridge University Press, 1989), pp. 164–209; G. Yaney, The Urge to Mobilize. Agrarian Reform in Russia, 1 861 –1 93 0 (Urbana: University of Illinois Press, 1982), pp. 68–96; V. M. Gessen, ‘Genezis instituta zemskikh nachal’nikov’, Pravo (1903), no. 52: 2941–54; A. Parenago, ‘Krest’ianskii sud i sudebno-administrativnye uchrezhdeniia’, in Davydov and Polianskii, Sudebnaia reforma, vol. II, pp. 81–171; V. I. Kriukovskii, ‘Sushchestvennyia cherty preobrazovaniia mestnogo suda po zakonu 15 iiuniia 1912 goda’, ZMI 20, 5 (1914):

117–42.

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adjudication, it also combined it with the volost system of peasant justice in one procedural instance.36

The fact that the core of the reformed judicial system remained unchanged, although Alexander III detested the ‘jurist blatherers’ like ‘castor oil’, was to no small extent due to the growing influence of jurists in the higher echelons of the administration. For during the 1870s, jurists had conquered the key positions of power in the tsarist bureaucracy: they occupied the most important positions in the State Council and in the State Chancellery, and had moved into the Ministries of the Interior and Finance. There were even jurists in the secret police, the okhrana, and after the 1880s, former public prosecutors occupied the leading positions in the St Petersburg police department. Jurists monopolised the drafting and interpretation of the laws, for they had abilities which made them irreplaceable. This is also the reason that the ministers of justice gradually grew into the role of supervisors who oversaw the legality of the administration. All ministers of justice, even the conservative Ivan Shcheglovitov (1906–15), considered themselves proponents of the concepts of an independent judiciary and of the rule of law. They therefore resisted any proposals for implementing changes which would have called their own indispensability into question. Even such an uncompromising advocate of autocracy as Alexander III ultimately had to submit to the practical constraints which the bureaucracy imposed on him.37 This was shown in the inability of the monarch to find a minister of justice who would submit to his will. The ministers of justice Dmitrii Nabokov (1879–85) and Nikolai Manasein (1885– 94) were dismissed because they would not bow to Alexander’s desire to rein in the justice system. Even with the conservative minister Nikolai Murav’ev, who remained in office until 1905, the monarchy failed to find happiness. In 1894 Alexander III directed him to form a commission which would place the system of justice on a new basis and homogenise it, but would above all abolish the independence of the judiciary. Murav’ev failed, because he neither fulfilled the desire of the conservatives to end the independence of the judges and abolish the jury courts, nor that of the liberals to expand the competence of the independent judiciary. No one, however, suffered a greater defeat than

36Baberowski, Autokratie, pp. 206–34, 722–9.

37A. A. Polovtsov, Dnevnik (1 883 –1 892), 2 vols. (Moscow: Nauka, 1966), vol. I, pp. 347–8, vol. II, p. 336; Koni, Ottsy i deti, pp. 156–72; D. Lieven, Russia’s Rulers under the Old Regime (New

Haven: Yale University Press, 1989), pp. 177–85; J. Daly, Autocracy under Siege: Security Police and Opposition in Russia 1 866–1 905 (DeKalb: Northern Illinois University Press, 1998), p. 29; A. G. Zviagintsev and Ju. G. Orlov, V epokhu potriasenii i reform. Rossiiskie prokurory

1 906–1 907 (Moscow: Rosspen, 1996), pp. 7–96.

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