Law and the Russian State

Russia's Legal Evolution from Peter the Great to Vladimir Putin

William E. Pomeranz

• Publisher: Bloomsbury Academic
• Year: 2018
• ISBN:
  9781474224246
• Edition: 1
• Topic: History
• Subtopic: Russian History
• Index: History

Russia is often portrayed as a regressive, even lawless country, and yet the Russian state has played a major role in shaping and experimenting with law as an instrument of power. In Law and the Russian State, William E. Pomeranz examines Russia's legal evolution from Peter the Great to Vladimir Putin, addressing the continuities and disruptions of Russian law during the imperial, Soviet, and post-Soviet. The book covers key themes, including: * Law and empire
* Law and modernization
* The politicization of law
* The role of intellectuals and dissidents in mobilizing the law
* The evolution of Russian legal institutions
* The struggle for human rights
* The rule-of-law
* The quest to establish the law-based state It also analyzes legal culture and how Russians understand and use the law. With a detailed bibliography, this is an important text for anyone seeking a sophisticated understanding of how Russian society and the Russian state have developed in the last 350 years.

1

Law and Empire under Peter the Great

Peter the Great’s transformation of the Russian state at the beginning of the eighteenth century marks Russia’s entry onto the world stage. Peter relied on his personal law-creating powers to modernize the state, in the process restructuring the military, economy, church, and legal system. His unrestricted view of state power, however, was accompanied by a narrow vision of legality, a belief that if everyone—bureaucrats and subjects alike—simply followed the letter of the law, the state would operate like a smooth running machine.

Yet no legal system ever starts from scratch. Peter inherited a relatively new law code and a distinct legal tradition from Muscovy that would influence developments for centuries to come. Of particular importance was the Law Code (Ulozhenie) of 1649. Rooted in the laws of Moscow, Pskov, Novgorod, and Kiev, the Law Code of 1649 holds a special place in Russian history in large part due to its longevity. It remained Russia’s governing law for some 180 years, by far the longest serving source of law in Russian history. This chapter examines Peter’s legal inheritance from Muscovy and his attempts to update and expand Russian law to meet the needs of a rapidly expanding empire. In the process, foreign law and practices entered into Russia, but they remained fully subordinated to the goals of the Russian state.

The Muscovite legacy

The Law Code of 1649 was born of crisis. In June 1648, nineteen-year-old Tsar Alexei faced an internal revolt sparked by the corrupt rule of Boris Morozov, Alexei’s former mentor and de facto ruler since Alexei had assumed the throne three years earlier. The growing social unrest led to calls for a new founding law, and a special Assembly of the Land (zemskii sobor) was summoned to prepare and ratify the Law Code. This marked the last time that Russian autocrats would seek the formal approval of legislation by their subjects for another 250 years.

The speed with which the Law Code was drafted confirms that a significant body of substantive Russian law predated its proclamation. Many of the individual statutes came from the government chancery offices and consisted of highly specific rules and regulations, as opposed to more general norms. Thus, the Law Code possessed limited potential for interpretation but instead imposed narrow, specific requirements. Moreover, not all of the law in this new code was necessarily Russian law. Approximately 20 percent of the Law Code of 1649 came from the Lithuanian Statute of 1588 and Byzantine law.¹ From the Lithuanian Statute, the Law Code of 1649 borrowed contract law, legislation protecting the sovereign, and some of the more heinous laws on torture. From Byzantium, Russian law incorporated new crimes against faith and the person, as well as the rights of the family. What the Law Code specifically omitted was the Lithuanian Statute’s notion of a law-based state (Rechtsstaat), the legal concept that all citizens, including the ruler, are subject to the law. Furthermore, Muscovite law made no concession to the notion of separation of powers. As the historian Richard Hellie notes, “The executive essentially ran everything; it served (with the rarest of exceptions) as its own legislative arm, and also was its own judiciary.”²

The codification process in any country requires the gathering and restating of law by subject. The 1649 code consisted of twenty-five chapters, covering the tsar and his court, the church, and different social groups (townsmen, guardsmen [streltsy], Cossacks, slaves), thereby reinforcing its established social hierarchies. The code further distinguished between civil and criminal laws. It addressed such standard civil law subjects as property, inheritance, and contracts. Criminal law covered crimes against the state, the church, property, morality, and the individual (i.e., murder, assault, slander, etc.). Most importantly, the state retained exclusive jurisdiction over all high crimes, thereby maintaining a monopoly on violence essential to running a continental, and still expanding, empire.³ Violence inevitably meant torture and executions, which were also sanctioned under the Law Code. Russian law also recognized a distinctive form of punishment: exile. Indeed, the death penalty was used increasingly sparingly in Muscovy; instead, criminals were regularly sent to Siberia where rather than being imprisoned (the state lacked the resources to maintain such facilities), exiles worked as garrison guards, artisans, and peasants, among other occupations. Thus, Muscovy criminal law played a unique role in the colonization of the Russian empire.⁴

The Law Code of 1649 has been praised as “one of the most important documents of Russian history and one of the major monuments of legal history.”⁵ It codified an ongoing shift that would shape the practice of Russian law for centuries to come—the choice of inquisitorial procedures over the accusatorial (adversarial) system of justice, the primacy of written over oral evidence, and the focus on statutes over common (i.e., judge-made) law. Muscovy clearly diverged from the Anglo-Saxon model, but it remained consistent with other continental legal developments, and the creation of a single, unified source of law in the middle of the seventeenth century marked a significant achievement in governance.

The Law Code of 1649 was not just a legal document, however. It possessed broader implications for Muscovite society as well. In particular, two groups—the peasantry and the Church—saw their social standing decline significantly in the aftermath of its adoption. For Russian peasants, defeat was total: the code legally enserfed just over half the peasantry by creating an unlimited statute of limitations for the recovery of fugitive peasants who attempted to flee their landlords. The Church was semi-secularized through the creation of a new government office (the Monastery Chancellery), which was assigned responsibility for administering church lands and the people who lived on those properties. The Monastery Chancellery proved short-lived, but the reform paved the way for full secularization of the Orthodox Church by Peter the Great in 1721.⁶

Townsmen did better under the Law Code in which they received near-monopolies on trade and manufacturing. Yet they too found their personal mobility sharply circumscribed, restricted to the town in which they presently resided. Thus, the new legislation codified a highly stratified, caste-like society, yet it also provided all subjects—no matter what their nationality, religion, or social standing—access to the legal system.⁷

The Law Code of 1649 was quickly recognized as the main source of law for Muscovy with broad acceptance among the people.⁸ The historian Nancy Shields Kollmann’s innovative examination of both Russian criminal law as well as defamation suits during the Muscovy period reveals a regularity of practice and readiness among the parties to settle the cases themselves.⁹ Kollmann also demonstrates a willingness of all layers of Russian society to turn to the courts to resolve their problems, especially in slander cases. Valerie Kivelson identifies a similar phenomenon in property disputes during the seventeenth century. She found that Russian courts “gave people of all ranks a venue in which they could engage with each other and the state, in the person of its local officials, would pay attention.”¹⁰

Yet while historians identify a persistent demand for law in seventeenth-century Muscovy, they also recognize the shortcomings of the prevailing legal system. Property disputes, Kivelson argues, were bogged down by conflicting evidence and a glaring lack of truthfulness among the parties, leading to protracted litigation that dragged on for years.¹¹ The Law Code’s ability to evolve and serve as a forward-looking, norm-creating document also was limited. According to Richard Hellie, the Law Code demonstrated “an inability to combine ideas, to generalize, to pick out the general and subordinate the particular.”¹² Muscovy further lacked the basic legal institutions and people—law faculties, independent judges, trained lawyers—who could contribute to the growth of law as a broader governing or philosophical principle. Instead, it was state secretaries, chancery officials, clerks, and other bureaucrats who initially shaped Russian law and relied on it to solve practical, everyday problems. These bureaucrats and scribes actually held an empire together with limited administrative resources, but they lacked the formal legal knowledge and expertise to expand the domain of law beyond certain technical functions. Finally, Kollmann highlights the persistent problem of corruption that infected law enforcement and court officials.¹³ The Law Code of 1649 did not prevent law from primarily being a local matter, open to personal rule and favoritism. The prevalence of corruption furthermore was a manifestation of a lack of bureaucratic manpower—and a weak state—that invariably affected Muscovy’s ability to administer justice.

Muscovy’s internal constraints, however, did not impede its pursuit of greater imperial glory. Just five years after the adoption of the Law Code of 1649, Muscovy signed one of the most important treaties in Russian history: the Pereiaslav agreement of 1654. The Ukrainian Cossack state and its leader, Hetman Bohdan Khmelnytsky, were engaged in a conflict with the Polish-Lithuanian Commonwealth and in desperate need of allies, so Khmelnytsky turned to Moscow for protection. The tsar’s envoy agreed to provide such protection but refused to negotiate over the exact terms of the agreement. The envoy even refused to swear to abide by the treaty’s promises, stating the tsar swore no oath to his subjects. In desperation, however, Khmelnytsky signed the agreement.

The historian Serhii Plokhy argues that a fundamental misunderstanding stands at the root of the Pereiaslav agreement. The Cossacks thought of the treaty “as a contract with binding obligations on both sides,” while the tsar “perceived the Cossacks as new subjects toward whom he would have no obligations after granting them certain rights and privileges.”¹⁴ In other words, although there were still many battles to be fought, the Pereiaslav agreement began the process whereby Muscovy gradually assumed sovereignty over Kiev and other parts of the Cossack state. Yet in extending control, there appears to have been no expectation that the Law Code of 1649 was about to become the law of the conquered region. On the contrary, Cossack chroniclers in the 1700s extolled the Pereiaslav agreement as the Magna Carta of Ukrainian liberties in the Russian empire.¹⁵ The Pereiaslav agreement embodied an essential feature of imperial policy that would dominate Russian law until the advent of the Russification policies of the late nineteenth century; namely as long as a region accepted the tsar’s ultimate sovereignty, it could retain both its legal traditions and its underlying customs and laws.

Thus, to speak of one Russian law on the eve of Peter the Great’s reign would be to mischaracterize its inherent flexibility and pluralism. Moreover, while many foreign visitors would castigate Muscovy as lawless and deeply corrupt, Russians regularly turned to the courts to litigate all kinds of cases. Recognizing the Muscovy legal system’s profound weaknesses, which were both prevalent and hampered further development, Kollmann nonetheless concludes that it was functional and consistent “with contemporary strategies of state-building and governance.”¹⁶ Peter would take this inheritance and forge a great and powerful state.

Law and the creation of the Russian empire

Peter the Great’s vision of a modern Russia began with his elevation of the state. The state went from merely providing personal service to the tsar to representing the common good and the fatherland.¹⁷ Peter further pursued a separation of ruler and state. For example, he distinguished between the state’s property and his own. Upon joining the army, soldiers now swore loyalty to both the sovereign and the state. Finally, he ascribed the empire’s highest law-creating powers to the state. As the historian V. O. Kliuchevskii later noted, Peter’s decrees claimed that the state’s interests represented the “highest and unconditional norm of state order” and that the state was the “supreme carrier of law and the keeper of the common good.”¹⁸

Thus, the impersonal but all-powerful state moved to the center of Russian governance and law. Peter would subsequently revamp Russia’s administrative system and social order to maximize the rendering of state service. The renowned table of ranks, which defined a career ladder and created a merit-based aristocracy, was grounded on the notion of service to the state. The state, however, stood for more than just central administration; it served as the primary symbol—and designated defender—of national unity in an expanding multinational empire. The state further did not recognize any abstract, philosophical constraints; there was no concept of natural law that somehow existed outside of—or higher than—the state to check its authority. No founding social contract existed either; on the contrary, as the legal theorist N. M. Korkunov later argued, the essential relationship between the Russian state and its subjects was that of dependency.¹⁹ Indeed, under Peter the Great’s system, there were no “free” people other than the indigent and the mentally ill, and Peter made sure that these groups were rounded up by the state.²⁰

The rise of the impersonal state, however, did not lead to a corresponding diminution in Peter’s actual power. In reality, the separation of state and ruler was a legal fiction. Peter remained an absolute monarch in the truest sense of the word, evident in his personal law-creating powers. Peter was by no means the first monarch whose word literally was law. Nevertheless, the tsar’s ability to issue decrees (ukazy) that carried the force of law served as an essential feature of Russian law. Peter’s legislative output was prodigious—he issued thousands of decrees, showing a degree of personal engagement and attention to detail that would help define his historical legacy. His decrees in St. Petersburg, for example, covered not only where one could build but also the dimensions of chimneys, the form of roofs, and the order of digging ponds.²¹ Peter did create a pseudo legislature—the Ruling Senate—that also possessed certain law-creating powers, but it was the sovereign’s pen that remained the primary source of law in Russia.

What Peter’s flurry of decrees most directly upset was Russia’s prevailing legal code. The Law Code of 1649 remained the primary source of law, but Peter’s own voluminous output somehow needed to be incorporated into a legal code that was current, comprehensive, and assessable. Peter convened several commissions to address the codification question, yet no revised code ever emerged during his reign. Therefore, the law remained a combination of statutes, regulations, and decrees—some published, others never publicly announced or distributed—that formed a confusing and often contradictory legislative base. The ambiguous nature of Russian law was exacerbated by the fact that Peter rejected any idea of an independent judiciary that could fill in the gaps and interpret the law.

Peter’s reliance on the majesty of the state and personal rule served as two essential pillars of Russian law and autocratic rule. Two other developments—empire and modernization—infused a significant degree of flexibility into Russian law and led to major structural reforms. It must be remembered that Peter’s search for foreign conquest and military glory overrode his domestic agenda at all times, including any efforts to rationalize Russia’s administrative and legal systems. His o...

Table of contents

• Cover
• Halftitle Page
• Title Page
• Dedication Page
• Contents 
• Acknowledgements
• Introduction
• 1. Law and Empire under Peter the Great
• 2. The Expansion of Russian Legality
• 3. The Judicial Reforms of 1864 and the Modernization of Imperial Law
• 4. Law, Politics, and Revolution
• 5. Filling in the Blanks: The Creation of Socialist Law
• 6. Socialist Legality and Illegality
• 7. Russia’s Long Constitutional Crisis: 1985–1993
• 8. The 1993 Constitution: A Framework for Reform
• 9. Vladimir Putin and the Restoration of State and Law
• Conclusion
• Notes
• Bibliography
• Index
• Imprint