Experts discuss Russian law and its trajectories

Watch the video of the event here

On October 16, 2014, the Jordan Center welcomed several scholars to participate in a panel, entitled Russia’s Legal Trajectories: Law in Action and Question, 1830 to 2014. In her introductory remarks, Professor of History at NYU Jane Burbank stated that there are many perplexing ideas about law and Russia. Some commentators think that the rule of law is incompatible with autocratic or Communist governments; for them Russian law is an oxymoron. Yet, Burbank remarked, law has been important to government in Russia for many centuries. In addition, for the last 10 year or so many scholars have been rigorously scrutinizing the subject. This panel was meant to give its audience “a taste of new legal history” in four different presentations about law from the early 19th century, through the legal reforms of 1864, to the current day.

The first presenter was Sergei Antonov, who teaches history at Queens College, CUNY. Antonov presented on a chapter from his current project – a book on Russia’s 19th century legal history of personal credit and debt. Antonov stated that when he began researching this subject, he quickly realized that credit and bankruptcy “were the bread and butter of legal practice” at the time. “Law was crucial in how the culture of money was operating in Russia in the late 19th century,” he added.

The purpose of his project, Antonov stated, is to compare the legal culture prior to and immediately after the Judicial Reforms implemented by Tsar Alexander II in 1864. The Tsar’s reforms established a different court system as well as new legal proceedings in Russia modeled on Western systems. Antonov’s goal is to argue against a general scholarly consensus that views the pre-reform court system as the “legal Dark Ages” in comparison to the refined court system of post-1864. These widespread opinions are rooted in the pre-revolutionary scholarly works, which investigated the corruption and mismanagement of the pre-reform courts. Antonov remarked that, as he was looking through early pre-reform court cases in various archives, none of them fully reflected the critique of the older scholarship: “None of them looked like the Dark Ages.”

Antonov briefly outlined the main assumptions about pre-reform court system that he argues against in his book. First is the assertion that it was too fragmented; this view is often shaped by the idea that the system was operating based on different estates. Antonov claimed “that the system was impossible to operate based on an estate basis.” Court cases would often involve people of different estates. Thus, “pre-reform justice is estate based only in the sense that it was ruled by the nobles.” Secondly, Antonov worked against the claim that the pre-reform court system was too inquisitorial, therefore placing too much power in the hands of the judges and not the litigants. What he found is that the court system was not inquisitorial enough. He explained that it allotted too much control to the litigants in the decision of how many petitions they could file.

Antonov concluded by stating that we often assume that there is legal nihilism in Russia that distinguishes the country from the West. However, he said, “my research shows that even if we bracket out the question of rule of law, there is still a legal tradition going back several centuries, no matter what happens under Putin, Stalin, or whomever else.”

The second presenter on the panel was Aaron Retish, an Associate Professor of History at Wayne State University who recently finished a book on Russian peasants during the revolution and civil war. At the panel, he presented ideas from his new monograph on courts and legal culture from 1917 to 1939 in the Soviet countryside. Retish explored the continuities between pre-revolutionary and Soviet Russia, when the existing civil legal systems were replaced by the Local People’s Courts, which focused on building proletarian consciousness.

Retish made  three main points. First, he stated that the establishment of Local People’s Courts did not represent a radical break from the past. For example, the Bolshevik government only partially rejected previous legal procedures, keeping the legal code largely in place for the first four years following the Revolution. The transformation was very gradual. In the early stages of post-revolutionary court system “almost all members of Soviet courts have served under the Tsar.” It was not until 1923 when new officials appeared in local courts – many of them either demobilized Red Army soldiers, political activists or people with legal education. Secondly, Retish wanted to demonstrate thatthe legal consciousness that was developing prior to 1917 continued to develop after 1917. For example, he asserted that in 1920s People’s Courts heard more and more cases each year and were eventually clogged by huge case loads. Peasants and, in particular, women peasants who hoped to liberate themselves from male domination wanted to be guaranteed the promises made by the Soviet State and file for a divorce. Lastly, Retish claimed that the pre-Revolutionary peasant legal culture lasted until roughly 1928, after which more radical reforms were implemented.

The third presenter at the panel was Tatiana Borisova, an Associate Professor at National Research University Higher School of Economics in St. Petersburg, Russia. Borisova’s research focuses on the codification of Russian legal tradition. She stated that her presentation would be different from the ones she had done in the past in that it would be “a top down perspective – an official concept provided by the elites in the 19th century.” “I see it as ‘legality with adjectives’ – we used to have Imperial legality, Revolutionary legality, Socialist legality, and now Sovereign legality. This is our Russian legal tradition of adjectives,” she said.

In Russia, Borisova stated, legality is about order. “Whenever there is a public talk about legality, it is about fostering order,” she added, and “justice is a missing point.”  Borisova’s main question was: why is Russian law fostered by Russian authorities? She analyzed the work of Harold Berman, who traced the history of authority of law in America in order to understand “why the authority of law did not succeed in Russia.”

Furthermore, by looking at various collections of legislature beginning from the mid 19th century – including the Digest of the Laws of the Russian Empire (Svod zakonov Rossiiskoi Imperii) – she was able to conclude that law in Russia was often approached with an instrumentalist and formalist lens. Also, the Digest emphasized the difference of Russian legality with the West, basing its reasonings on the difference in Russian traditions and mentality. The Digest thus presented Russian legality as incomparable to universalist legalities. For example, an emphasis on the enforcement and power predominated the Digest. If power is concentrated in autocracy, what kind of justice can we be talking about? She concluded by suggesting that “the system of Russian legal sources mirror political structure where administrative and legal structures of power have not been separated.”

Cathy Frierson, Professor of History at the University of New Hampshire, was the last presenter of the panel. Her presentation focused on the 1991 law “On Rehabilitation of Victims of Political Repression”; the history of this law and its amendments revealed an interesting case study for the transitional justice in post-Soviet Russia. The law was passed during the last months of the Soviet era and expressed a shift from legal abuses and restrictions on information by the Soviet authorities to an idealized form of the rule of law and recognition of the universal human rights by the more progressive politicians.

The law carried out two main functions: that of historical reckoning with repressive history and of social welfare, which compensated the victims for their tragic losses. In connection to the first function, the time of glasnost’ forced an opening for gaining access to materials. For example, the 1991 law allowed six million relatives of Gulag victims to see their entire case files and to take out any personal documents that survived in them. The Memorial archive asked these relatives to share copies of these materials with them. As a result, the archive was able to expose the inner workings of the Soviet system of repression and facilitated the opening of various memorial sites for the victims of the regime.

In connection to the second function of the 1991 law, Frierson was asked by Susan Heuman about the kind  of reparations people received beyond cheaper transportation cards. They received very generous reparations and benefits, Frierson responded. Prior to the passing of the law, a four-year debate questioned whether the victims’ benefits should be equal to those of the veterans of World War II. It was a “battle over history,” she added. The benefits were indeed trying to compensate for the losses. For example, if the victim lost mobility, they would receive free transportation or cars. Also, some received free dental care because of loss of teeth due to scurvy. However, since 2004, the Russian state has retreated from the commitments that they made under the 1991 law. Since that time there has been a shift away from law focused on the rights of Russian citizens to a focus on financial benefits and protection of the state.

Frierson explained that her project began during her visit to a small town of Staritsa in mid 2000s, where she encountered several children of the Gulag victims who wanted to challenge the new 2004 law that reduced the benefits that they were promised in 1991.Frierson suggested that the 2004 changes are not a setback to the development of legal consciousness; rather, experience with the law has emboldened these people in their claims to the Russian state. As a result, many people went to the streets to protest these changes, and multiple lawsuits have risen to the level of constitutional courts. However, while the court allowed a disproportionate number of cases to be read in order to demonstrate respect for the victims, no rulings have actually been enforced.

The four presentations were followed by questions and remarks by two commentators: Daniel Hulsebosch, Charles Seligson Professor of Law at NYU Law School, and Richard Wortman, Bryce Professor Emeritus of European Legal History at Columbia University. Hulsebosch brought up three main points that he felt all four papers were addressing: the relationship between Russian or Soviet systems to Western European traditions, the problem of law and revolution (whether in the distant past or recent), and the question of what historians can bring to the study of the rule of law.

Hulsebosch asked Antonov whether the pre-revolutionary legal historians ever examined how legal systems worked elsewhere. Were the new reforms of 1864 seen as simultaneous with legal development elsewhere (i.e. Germany)? Antonov responded that the Russians were very conscious of what other societies was doing.

When addressing Retish’s paper, Hulsebosch stated that he appreciated his focus on similarities between pre and post-revolutionary court systems, but wondered about the actual changes. “What kinds of disputes were not in people’s courts that were present in imperial courts?” he asked. Retish replied that the legal changes in divorce were statutory but that peasants quickly learned about these changes in the law and used them.

Hulsebosch then asked Borisova what were the stakes of the institutionalization of law through literary projects like the Digest. “What about a more nuanced story about what the jurists tried to accomplish and did accomplish?” Borisova responded that already in the 1850s there was a critique of legal procedures in practice that did not conform to statutory law; however, on the eve of the reforms, prohibitions on discussion of rule of law were imposed on the journals.

Hulsebosch asked Frierson whether she thought that the rehabilitation process was indigenous to Russian tradition or if it was a part of a more international movement. Frierson responded that it was a more insular process than comparative. Around the period of glastnost’, even the leaders revealed how little they knew about what went on under the Soviet regime. “They were very much engaged in the politics of the possible.” The precedent was set by the rehabilitation process under Khrushchev in the 1950s and many thought that the 1991 law was the first step and “that many other measures would follow. And of course, they haven’t.”

Wortman, in commenting on Antonov’s paper invited the presenter to reflect on “why did everyone from all political viewpoints thought that the old courts were awful. What needs did the system not answer that they could not say anything nice about it?” In his commentary on Retish’s paper, Wortman observed that he takes on a similar approach to Antonov – mainly, trying to argue against the traditional argument of discontinuity. Part of his critique referred to the fact that at times Retish makes statements that outstrip his evidence. For example he said: “I want to see more evidence to your claim that peasants had deep understanding of legality.” In his response to Borisova’s paper, Wortman offered an additional angle useful in understanding the nature of Russian law: “What about the idea that the autocratic government did everything to prevent legality? Law is only one attribute contributing to the supremacy of the Russian ruler. Even Putin now is presenting the law as something trivial.”

Towards the end of the question and answer period, Yanni Kotsonis wondered whether one could look at law as didactic: “What about law as an educational process?” Borisova suggested that the Digest revealed an educational potential of law. Frierson responded that in face of reality that constitutional orders have not been implemented – does it matter that the constitutional court puts all of its cases online? “Does it matter that all the laws are available for general use?” She concluded the panel with references to the importance of law to the civil rights movement in the United States. Laws mattered to those who worked to bring about change, even and especially when society in general was not obeying them.