The Practice of Law and the Promise of Rule of Law: The Advokatura and the Civil Process in Tsarist Russia

By Pomeranz, William | Kritika, Spring 2015 | Go to article overview

The Practice of Law and the Promise of Rule of Law: The Advokatura and the Civil Process in Tsarist Russia


Pomeranz, William, Kritika


The history of the prerevolutionary Russian advokatura has concentrated on the prominent attorneys who achieved fame at the major political proceedings of the postreform era. The 1878 trial of Vera Zasulich for the attempted assassination of St. Petersburg Governor Fedor Trepov and the 1912 trial of Mendel Beilis on ritual murder charges serve as bookends to what was an intermittent string of controversial and highly politicized prosecutions. The Zasulich and Beilis trials provided platforms for talented defense lawyers (prisiazhnye poverennye, sworn attorneys) to question in open court the credibility of the governments cases. Moreover, both trials resulted in "not guilty" verdicts, indicating a degree of judicial independence usually not associated with autocratic regimes.

The personal notoriety of leading political defenders has overshadowed the fact that most sworn attorneys in late 19th- and early 20th-century Russia were neither great social activists nor "radical opponents of the tsarist order," as one historian has described them. (1) Instead, sworn attorneys in tsarist Russia primarily specialized in the less glamorous and inherently more conservative practice of civil law, the body of law regulating private relations. (2) Maksim Moiseevich Vinaver, a prominent sworn attorney and civil law specialist (tsivilist), noted that the principal task of an advocate, not only in Russia but all over the world, was the "realization of civil justice in a [given] country," a responsibility that rarely attracts public attention. (3)

As in other legal systems, Russian sworn attorneys engaged in disputes that from time immemorial have required lawyers: contracts, real estate, wills, civil litigation, commercial transactions, corporate compliance, bankruptcy, and so on. Some lawyers thrived in this environment; others eked out a more modest--and mundane--existence. By focusing on the routine practice of civil and commercial law, this article provides a more balanced picture of the daily lives of sworn attorneys. Yet it also contends that, in response to a growing demand for legal advice, the civil practitioner acted as both a "servant and a creator of law," thereby placing the advokatura at the forefront of legal development in Russia. (4)

Heretofore, the study of tsarist civil law primarily has focused on the most powerful institutional players--the important legislative commissions, Russia's highest appellate court (the Civil Cassation Department)--and how their pronouncements filtered down into Russian society. In particular, William G. Wagner's pathbreaking analysis of the Civil Cassation Department showed how the high court's rulings addressed the gaps and inconsistencies of Russian civil law, especially in the areas of inheritance and property rights. (5) Yet, as Wagner demonstrated, all these judicial decisions largely arose in reaction to developments within Russian society, not at the command of the Russian state

It was the advokatura and its organized corporate structures (sovet prisiazhnykh poverennykh, the bar) that served as the crucial intermediary in the search for civil justice. The Judicial Reforms of 1864 specifically tasked the profession with turning the private complaints of individuals and companies into legal actions. But the development of tsarist civil law cannot be understood simply by reviewing the docket of individual advocates. One also must consider the social and political implications of the civil process, and the profession's critical role in promoting it. How did the representation of business and economic interests by sworn attorneys affect their overall public image? Was the development of civil law--which invariably involved the defense of property interests--a viable path to the greater recognition of civil rights and the rule of law in Russia?

Scholars have contrasted the Anglo-American notion of "rule of law"--and its reliance on certain fundamental rights and natural law principles that stand above the state--with the German idea of Rechtsstaat, or the "law-based state. …

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