Mercy, Punishment, and Law: The Qualities of Justice at Township Courts

By Burbank, Jane | Kritika, Winter 2006 | Go to article overview
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Mercy, Punishment, and Law: The Qualities of Justice at Township Courts


Burbank, Jane, Kritika


Mercy is connected both to power and to grace, as Shakespeare and Foucault, as well as historians of England and Russia, remind us. (1) The diminishment or elimination of punishment--assigned by convention, statute law, or judicial procedure--enhances the majesty of the forgiver. The person, institution, or process that is able to reduce suffering legitimately imposed thereby demonstrates superior moral authority and partakes of the divine. The notion that political dominion in early modern Europe, including Russia, was buttressed by the sovereign's irregular grants of mercy is accepted generally by scholars. What can an exploration of mercy tell us when we turn to a later period--the reforming Romanov empire--and when we look not just at rulers but at the lowly peasant judges? Did the power to attenuate legal punishment extend beyond the autocrat's dispensations? Was forgiveness expressed in the multitudinous judgments made at township courts? Did peasant patriarchs, empowered as judges in Russia's countryside, enhance their personal authority by dispensing mercy?

I address these questions by examining sentences and decisions at township courts of central and northern Russia made from 1905 to 1917. I begin by setting out the procedures and legal rules applying at township courts. I then look at the kinds of sentences judges imposed and at the possible ways that judges could respond to the particulars of cases. I consider as measures of uniform, impersonal, not necessarily merciful practice the promptness with which sentences were fulfilled in different kinds of cases. Carrying out sentences was crucial to the functioning of the legal system and, at the same time, an arena where local authorities might exercise leniency. For a closer look at the intersection between local and imperial justice in the matter of mercy, I examine how the Romanovs' tercentenary amnesty was engaged by township authorities and judges. Finally, I turn to cases heard during World War I, which, in my view, illuminate a kind of systemic humanity--but not a regime of personalized authority--characteristic of Russian peasant judges a half-century after the court reforms of the 860s. (2)

Let me clarify the extent and limits of my argument. I do not represent "the law" here as an abstraction, an ideal system, or as a distinctive type of governance, present or absent in Russia. This article does not set autocracy and rule of law in opposition to each other, even though this was how many reformers at the time represented their political combat. Instead, I look at imperial law--not "the law"--in practice, as part of a system of really existing governance, activated in the rural areas by individuals who served as officials of their polity. My concern here is with the ways the local authorities--peasant judges, clerks, township and village leaders--applied laws in sentencing convicted people for a variety of misdemeanors. The discretionary powers of judges over sentences were defined by the empire's legislation. Rural judges' "mercy" was contained within a legal framework and as such did not refer to an overarching justice outside and above the legal system. When we turn from Shakespeare's "mightiest" (3) to the mundane, mercy takes on a merely human face and sends a different kind of message to its recipients. Peasant judges' pragmatic adjustments to the burdens of rural people's lives may have remained invisible to elite contemporaries, but they nonetheless enhanced the authority of legal process in everyday life. To us, an exploration of how judges used their discretionary powers displays the realistic legalism practiced in the Russian countryside in the early 20th century.

The Powers of Peasant Judges

We turn first to the context of peasant jurisprudence. The township courts can be considered the most typical--in the sense of most used--legal instance of the empire. In the early 20th century (and before), there were far more township courts than circuit courts or justices of the peace and many more cases heard at township courts than at any other instance.

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