Russian Legal Culture and the Rule of Law
Wirtschafter, Elise Kimerling, Kritika
Historians suspicious of absolutist political models have in recent decades drawn attention to the effectiveness of legal institutions in Muscovite and imperial Russia. This attention has produced a compelling corrective to widespread images of Russian government as arbitrary, corrupt, and generally dysfunctional. More often than not, liberal historians in late imperial Russia and Euro-American scholars in the era of the Cold War stood ready to paint Russian government with the broad brush of despotism, a readiness that led them to overlook the social dynamism and nuanced political relationships characteristic of Muscovite, imperial, and even Soviet Russia. (1) Nancy Kollmann and Jane Burbank count among the most influential voices that have been calling for a reappraisal of Russian government and legal culture. (2) In the articles presented here, as well as in previously published work, both historians document the beneficial effects of legal institutions and judicial practices over several centuries of Russian history. Both see in the Russian system of justice a source of social integration and political legitimacy. Bolstered by years of archival research, the conclusions of Kollmann and Burbank derive from deep knowledge of legal prescriptions and, more important, judicial practices. Through their descriptions of how tsarist subjects from a range of social statuses successfully employed judicial institutions to address everyday needs, it becomes clear that law played a central role not only in government policy but also in the functioning of society. The strengths of the approach taken by Nancy Kollmann and Jane Burbank are easy to identify; however, the whole is the sum of the parts, and I remain uneasy with the broad implications of the discussion.
Across Western and Central Europe--in Britain, France, Austria, and even Germany--limited monarchy, and eventually parliamentary government and the rule of law, arose from the cumulative effects of institutional competition and juristic posturing among recognized corporate bodies. In need of resources but short of effective power, early modern monarchs who asserted a divine right to absolute sovereignty had little choice but to mobilize their nations through cooperation with, or opposition to, these bodies. In a study of the cameralist Policeystaat published some 20 years ago, Marc Raeff drew attention to the absence in Russia of corporate bodies--guilds, diets, parlements, provincial estates, Estates General, and the English Parliament--and to the consequences of that absence. (3) In Russia, the monarch did not need to compete for social and political authority with historically sanctioned and legally constituted bodies that exercised either local territorial or translocal authority. Lordship in Russia carried no administrative or judicial powers beyond the boundaries of the individual noble's private estate, and the "self-government" of peasants and townspeople did not extend to any territorial or national body outside the immediate community. Nor did local customs and practices become codified as customary law on the model of the provincial coutumes in France. (4) Except for the Church, which the reforms of Peter I (1689-1725) effectively separated from the sphere of secular government, Russia's corporate bodies and civic institutions came to life by order of the cameralist Policeystaat. Monarchs decreed the creation of these bodies, which tsarist subjects then were called upon to fill. Historians seeking to situate Russia within the broad spectrum of European history cannot attach enough importance to the absence of corporate bodies.
No matter how historians ultimately define Muscovy's Assembly of the Land (zemskii sobor) or Boyar Duma, there is no evidence that these bodies exercised legislative, administrative, or judicial authority indepen dent of the monarch--a state of affairs that stood in stark contrast to the role of corporate bodies further west. …