The 12 Apostles of Russian Law: Lawyers who changed law, state and society

The 12 Apostles of Russian Law

Lawyers who changed law, state and society

Pavel Krasheninnikov

The 12 Apostles of Russian Law

Lawyers who changed law, state and society

by Pavel Krasheninnikov

Translated from the Russian by Christopher Culver

Publishers Maxim Hodak & Max Mendor

Published with the support of the Institute for Literary Translation, Russia

© 2019, Pavel Krasheninnikov

© 2019, Glagoslav Publications

www.glagoslav.com

ISBN: 9781911414957 (Ebook)

A catalogue record for this book is available from the British Library.

This book is in copyright. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means without the prior permission in writing of the publisher, nor be otherwise circulated in any form of binding or cover other than that in which it is published without a similar condition, including this condition, being imposed on the subsequent purchaser.

Contents

Introduction

Gavrila Derzhavin: the forerunner

Count Speransky:

Modest Korf: the scribe

Dmitry Nabokov and his son Vladimir Nabokov: the contributor to reforms and the knight of law

Sergei Muromtsev: the chairman

Gabriel Shershenevich: the Mozart of law

Vasily Maklakov: the defender

Vladimir Terebilov: the patriarch of law

Yuri Kalmykov: the man of the Caucasus

Stanislav Khokhlov: the comrade-in-arms

Sergei Alexeyev: the legal romantic

Epilogue

Notes

Acknowledgments

Thank you for purchasing this book

Glagoslav Publications Catalogue

Introduction

For Russians who studied their country’s history in the Soviet era, without evincing any especial curiosity, that history seems a wide and straight path, which starts from the October Revolution of 1917. Before that, as the comedian Arkady Raikin put it, times were tough and everything was bad. And then, under the leadership of the Party, the Soviet people went from one victory to another on the path to a bright future. But it was only when this high-speed highway suddenly gave way under the catastrophic collapse of the economy and people’s complete loss of trust in that same Party, and the image of a bright future dissipated like the morning fog, that many thinking people started to show a genuine interest in those tough times.

Now there was access to works by pre-revolutionary historians and writers, archival materials, all kinds of samizdat writings and publications imported from abroad. Today, when Russians read of events from a century or two ago, they might feel a powerful deja vu. It might seem that what was written in that era was actually written about our own. It is no accident that the satirist Mikhail Saltykov-Shchedrin is now among the most widely quoted authors in Russia. These days, history no longer seems any kind of straight path, but rather a Möbius strip, where you think you are going straight but constantly returning to the starting point.

This can be especially seen in the history of attempts to establish the rule of law in Russia. For example, many writings by Mikhail Speransky seem today to be completely modern and relevant to us. The works of Gabriel Shershenevich might have been written just yesterday. And the thoughts of Vasily Maklakov about why the Constitutional Democrats in 1905–1917 failed in their efforts to lay the foundation of a state ruled by law, appear too to serve as an epitaph for the efforts of reformers in the 1990s.

The late nineteenth and early twentieth century was a turning point in Russian history. It was at this time that the Russian intelligentsia began to form, and a movement of liberalism arose in opposition to the arbitrariness of autocracy and called for the creation of a constitutional state grounded in law. As Yuri Lotman noted in his series of television lectures Intelligentnost', the beginnings of this process go back to a decree by Peter III of February 20, 1762 (Manifesto on Freedoms for the Aristocracy) and one by Catherine the Great of April 21, 1785 (Charter for the Rights, Freedoms, and Privileges of the Noble Russian Gentry). These granted the aristocracy certain class rights: exemption from compulsory service to the state and corporal punishment, the right to travel unhindered to foreign lands and provide service to other European states allied with Russia. Before this, all aristocrats had been obliged to personally serve the state (the sovereign), mainly in military affairs. Even among the state officials of the Russian Empire, it is difficult to find one who did not wear an officer’s uniform for several years in his youth.

The strict regulation of practically all aspects of state service, society, and sometimes even people’s personal lives according to an army model that Peter the Great introduced, came to clash with real life, which could never be forced into such a strict mold. This led to an unprecedented rise in corruption and all kinds of abuses. For example, Peter the Great decreed that before attaining the first officer rank, an aristocrat should serve for a lengthy period of time as a common soldier. However, in the real world such rules were easily worked around: a newborn baby would be enlisted in the military and considered merely on leave, but all this time counted as years of service, and when the now-fourteen-year-old adolescent entered his regiment, he was immediately promoted to sergeant, then higher ranks, especially if he had someone highly placed to intercede for him. Someone who did not enjoy such opportunities (such as the great poet Gavrila Derzhavin) had to serve his full stint as a common soldier before being promoted to officer. ¹

Aristocrats who had shied away from service to the state were to some extent stripped of their rights. If a nobleman had really never served – something only the very wealthy could allow themselves – and mainly resided abroad, then his family would create a fictitious service history for him. Now the serving and non-serving were equal in rights and in public opinion. A psychology of servitude not only ceased to dominate among the aristocracy, but also came to seem unattractive in their eyes. The quip of Alexander Griboyedov I’d be keen to serve, but not to be servile was widely taken up. Among the aristocracy there arose such native traits of an intelligentsia as a sense of their own worth, independence, and a belief in justice. It is remarkable that all of the Decembrists served, almost all were active-duty officers, but it was precisely in their circles that a distinction arose between the concepts of merely being a servant to the state and truly serving. For merely being a servant, one got promotions in rank or military honors and was granted estates, but for truly serving, the sole reward was often exile or hard labor. One member of the aristocracy, who never even nominally served, was Alexander Pushkin. When Nicholas I awarded him the rank of valet de chambre, it was a mere mockery of things.

It is evident that the increasingly widespread quality of being a freethinker served as a fertile ground for the concept of the rule of law to emerge, one based on the primacy of the law and the rejection of arbitrary actions characteristic of authoritarian regimes.

The history of the creation, development, and promotion of the idea of a state ruled by law in Russia, is an important part of the history of the country, and we feel it has not been sufficiently appreciated and still awaits the attention of scholars and thinkers. I hope that the essays presented herein on various legal minds who changed law, state, and society, will serve an initial step towards this important and challenging task.

In speaking of the establishment of rule by law, we distinguish three main stages. The first is the creation of systematic and consistent legislation based on the principles of individual freedom and the right to private property. Second is the creation of an effective system of law enforcement and laws governing law-enforcement authorities. Finally, the third stage is when the norms of a culture of law enter into the public consciousness, i.e. the development of the legal consciousness of the masses.

Although Russia had never lacked talented legislators, and many laws that they had drawn up over a two-hundred-year history were, one might say, at an international level, the two other situations were much more problematic.

The introduction of cultural norms into social practice is the hardest and most complicated of tasks. Cultural norm refers to a set of actions (either mental or physical) that a person carries out in certain situations of his/her life in what might be called an automatic fashion. In our case it means the habit of relating one’s actions mainly to the law, and not to one’s own individual desires or the present moment. However, Russian society was dominated by completely different cultural norms, which can be described by well-known sayings like when something is not allowed, but it is greatly desired, then it can be done, the severity of the law is compensated by the laxity of its enforcement, every law has a loophole, judge not according to the law but according to one’s conscience, etc.

When such legal nihilism dominates, it is difficult for a society to carry out the second task, that of creating effective law enforcement, for the police, judges, lawyers, and other ministers of the law are fully representative of their society. Where then could one find totally incorruptible police, fair judges and disinterested lawyers?

Introducing a cultural norm means that it becomes applied in social practice and is then retained for a long period of time, in spite of resistance from the norms that previously prevailed. To accomplish this, adepts of a new norm often have to give up comforts, if not their own lives. The most famous example is the spread of Christianity in the Roman Empire. An unimaginably large number of new Christians gave up their lives so that Christ’s teaching would become an indisputable truth for other people.

Another instructive example is the spread of heliocentrism as a key part of society’s view of the world: the brilliant Copernicus, Giordano Bruno burned at the stake, the humiliations of Galileo… Just try to convince a normal person, who sees with his own eyes that the sun goes around the Earth, of the opposite view, and purely on the basis of a few tables of the motion of the planets and vague conclusions… Nonetheless, already for over four centuries this has been the indisputable truth.

The history of promoting the idea of the rule of law in Russia can be viewed as a series of attempts to introduce the corresponding cultural norms among society and hold to them. The success of these attempts can be judged by changes in how law, the state and society operate.

One forerunner of the whole illustrious series of outstanding legal minds who dedicated their lives to serving the law, was Gavrila Derzhavin. He was not a lawyer, and was essentially self-taught. Derzhavin was a real trooper, who made his way through civil service from the lowest depths to the greatest heights. However, he distinguished himself by his total rejection of the widespread corruption and other wrongdoing of those who held authority at that time. In all the many posts he held, Derzhavin actively fought against bribe-taking, and on more than one occasion he was dismissed from these posts. Catherine the Great, Paul I, and Alexander I appreciated his efforts, but they could not understand his extreme zeal, which led him into conflicts with each of them. Nonetheless, Alexander I would appoint him in 1802 the first minister of justice and attorney-general of the Russian Empire. This was, first and foremost, because the word law had become for Derzhavin a source of the highest and purest feelings, an object of sincere affection. The law came to serve as a sort of new religion, and in Derzhavin’s poetry the word Law, like God, was associated with love and fear. ² Thus, the idea of the supremacy of the law was first introduced into the social practices of the Russian Empire.

This idea was increasingly taken up by the leading minds of the day. One vivid exponent of it was Mikhail Speransky. His work, though it never enjoyed wide application, nevertheless became what one might call the first rough sketch of Russia as a state ruled by law. One could think it was written today, against the outrages of our time. It is no accident that the Decembrists, whom in some sense he engendered, saw him as a leader for a Russian republic, but the reactionary policies that came after the Decembrists’ uprising and Nicholas I’s accession, long slowed the spread of the idea of the rule of law. This was a time when thinkers had to hold on to the achievements they had made and not let the flame die out, even if they sometimes had to take a step backward. As one of those preservers, Modest Korf can be mentioned. He was associated with important historical events of the mid-nineteenth century that played a role in the further history of introducing the norm of rule by law in Russia. At the same time, work on the development of a theory of civil law began. In this, the works of Dmitry Meyer (1819–1856) played a prominent role. He was the first such thinker in Russia, the father of Civil Law in Russia. Incidentally, Meyer also had a significant influence on the thought of Leo Tolstoy.

On February 18, 1855, Nicholas I was succeeded on the throne by Alexander II. It was under the latter’s reign that many principles of Russia’s administrative structure and legislative system were established. In 1864 legal reforms were carried out, providing for trial by jury, a court of elected judges and applying to every citizen, and bar. The reform proclaimed all equal before the court, the independence of courts from state administration, the irremovability of judges, openness of proceedings, the adversarial system, the accused’s right to defense, and presumption of innocence. The role of prosecutors was also reorganized. A prominent role in these reforms was played by the famous lawyer and secretary of the State Council, Sergei Zarudny. The implementation of the reforms was led by the Minister of Justice, Dmitry Zamyatin.

Obviously, such a significant step towards the rule of law could not have happened without the efforts of those who had earlier called for this idea and kept it alive in public consciousness. Now the seeds sown by Derzhavin and Speransky, and carefully cared for by their successors, bloomed.

In the last years of Alexander II’s reign, against the backdrop of protest movements in society, unprecedented police measures were introduced. They essentially wiped out the Judicial Charter of 1864. The authorities and police gained the right to imprison anyone they suspected, to carry out searches and arrests without approval of a court, and to refer political crimes to military tribunals with punishments established for wartime.

Alexander II was assassinated by the Narodnaya Volya movement on March 1, 1881. This tragic event put a final stop to any reforms. Alexander III then ascended to the throne. His council of ministers rejected the so-called Loris-Melikov constitution drawn up under Alexander II, a document which had called for, among other things, the creation of a representative body with full powers to pass legislation. Instead, the Manifesto on Unshakable Autocracy was signed on April 29, 1881, and promulgated the following day. ³

The counter-reforms of the late nineteenth century put an end to democratic reforms. The idea of a state ruled by