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Law, Society and The Domestic Regime in Russia, in Historical Perspective

Published online by Cambridge University Press:  02 September 2013

George L. Yaney
George L. Yaney
Affiliation:
University of Maryland
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Extract

American experts on the Soviet Union have given much of their time to discussing whether the Russian communist government is going to remain “totalitarian” or instead turn “liberal.” Journalists and scholars alike judge Soviet policies and decrees largely according to whether or not they extend more “freedom” to the Russian people. Similarly, American writers in the nineteenth and early twentieth centuries almost never inquired as to what purposes the Russian imperial government's policies and decrees were actually intended to serve but only how liberal they were or were not. When one writer said that the Tsar was liberalizing, another would reply that he had not actually surrendered any of his arbitrary power and that Russia was still as oppressive as ever. In American eyes, then, the Russian state apparently cannot move except along a single line that extends from freedom to oppression, democracy to absolutism, similarity to Western institutions to dissimilarity. If Russia is not moving toward one of these poles, then she is not moving at all. Few have suggested that Russian statesmen have been operating along other lines and coping with other problems. Seldom has it occurred to American observers that the question of liberalization has actually been rather a minor one in Russian development.

Type
Research Article
Information
American Political Science Review , Volume 59 , Issue 2 , June 1965 , pp. 379 - 390
Copyright
Copyright © American Political Science Association 1965

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References

1 E.g., Conquest, R., “After Khrushchev: A Conservative Restoration?,” Problems of Communism, Vol. 12 (09–October, 1963), pp. 41–6Google Scholar.

2 Typically, the author of “Civil Liberties in Russia,” Outlook, Vol. 54 (11 1905), pp. 543–4Google Scholar, believed the Tsar was liberalizing in October 1905, while the author of “The Russian Chaos,” Living Age, Vol. 247 (11, 1905), pp. 502–4Google Scholar, believed he was shamming.

3 A welcome exception is Von Laue, T., Why Lenin? Why Stalin? (New York, 1964.Google Scholar)

4 Parsons, T., The Structure of Social Action (Glencoe, Ill., 1949), pp. 100–5Google Scholar, notes that the social origin of individual rights has been ignored by Western liberal thought ever since John Locke. The social-historical development that produced the eighteenth-century ideal of “natural” rights has been what Parsons calls a residual category, an assumption which is necessary to the validity of an idea but which is left unstated and unnoticed.

5 Goodhart, A. L., “Some American Interpretations of Law,” in Modern Theories of Law (London, 1933), pp. 1–20 Google Scholar, acknowledges that the legal system in America is not in fact reducible to a consistent framework. Nevertheless, he says, American judges make their decisions with the aim of developing and maintaining as consistent a body of law as they can. See also Pound, R., Social Control through Law (New Haven, 1942)Google Scholar; Hagerstrom, A., Inquiries into the Nature of Law and Morals (Stockholm, 1953)Google Scholar; and Petrazhitsky, L., Law and Morality (Cambridge, Mass., 1955)Google Scholar.

6 Fainsod, M., Smolensk Under Soviet Rule (Cambridge, Mass., 1958), pp. 85–9, 407–8Google Scholar.

7 Kistiakovskii, B. A., Sotsialnyia nauki i pravo (Moscow, 1916), pp. 619–59Google Scholar, discusses the weakness of legal consciousness in Russian society prior to the Revolution.

8 Leontev, A., “Volostyni sud i obychnoe pravo,” Zhurnal iuridicheskogo obshcheslva pri S-Petersburgskogo universiteta (11, 1894), pp. 23–33, 41–7Google Scholar.

9 Druzhinin, N. M., Gosudarstvennye krestiane i reforma P. D. Kiseleva (2 vols., Moscow, 1946, 1958)Google Scholar, describes the government's first consistent attempt to establish a legal system over and within the peasant communities; see esp. II, 74–8.

10 Sorokin has made it abundantly clear that peasant life is typically ritualistic and liturgical. See Sorokin, P. A. et al. , eds. A Systematic Sourcebook in Rural Sociology, 3 vols. (Minneapolis, 1930), I, 13–4Google Scholar; II, 124–34. Good discussions of the Russian peasant's attitudes toward law and the state may be found in Kavelin, K. D., Krestianskii vopros (St. Petersburg, 1882)Google Scholar; Novikov, A., Zapiski zemskogo nachalnika (St. Petersburg, 1889)Google Scholar; Leontev, cited above, n. 8; and Beer, V. A., Kommentarii novykh provintsialnykh uchrezhdenii 12 iulia 1889 goda (Moscow, 1894), pp. viii–xiGoogle Scholar.

11 One of the best descriptions of Russia's perennial problems of foreign policy is Fennell, J., Ivan the Great of Moscow (London, 1961)Google Scholar. Although Fennell's study is limited to the late fifteenth century, the nature of Ivan Ill's problems is suggestive concerning the situation he left to his successors.

12 Two excellent descriptions of government interaction with society in Western Europe prior to the industrial revolution are Hertz, F. O., The Development of the German Public Mind, 2 vols. (London, 1957, 1962)Google Scholar; and Matthews, G. T., The Royal General Farms in Eighteenth Century France (New York, 1958)Google Scholar.

13 The later peasant uprisings of the period 1900–1917 and the widespread workers' strikes of about the same period are the only cases of mass violence in Russian history in which a significant part of the trouble stemmed from conflicts between social groups each identified by common interests other than status position. Even in these years, whenever revolutionary violence reached its height the social classes whose interests were jeopardized hastened to identify themselves with the government rather than to compel the government to accept their demands. Western European states, on the other hand, prior to the 1920s, characteristically responded to crises by making significant concessions to the social elements that could support them the most effectively. The October Manifesto of 1905 was, of course, a concession by the Imperial government to the dominant social classes in Russia, and as such it is unique in Russian history. Nevertheless, the government cancelled it out within two years by openly violating its guarantees—and this with the general approbation of the very classes to whom it had been a concession. The cancellation, not the Manifesto, proved to be lasting. The “ruling classes” were still more concerned to be in-groups than to struggle for their interests. Both the landowning gentry and the business and industrial leaders threw themselves behind the central government from 1905 on and became, in effect, parts of its organization. See Roosa, R., “Russian Industrialists Look to the Future: Thoughts on Economic Development, 1906–1917,” in Curtiss, J. S., ed., Essays in Russian and Soviet History (New York, 1963), pp. 198–218 Google Scholar, for a survey of the attitudes of the industrial leaders. No systematic study of gentry attitudes in this period exists, but evidence is plentiful showing their wholehearted support of the state's interest as if it were their own. See Shipov, D. N., Vospominaniia i dumy o perezhitom (Moscow, 1918), pp. 501–31Google Scholar; Shidlovskii, S. I., Vospominaniia, 2 vols. (Berlin, 1923), I, 130–218 Google Scholar; and the programs set forth by various gentry groups in 1906 in Veselovskii, B. B., ed., Agrarnyi vopros v Sovete Ministrov, 1906 g. (Moscow, 1924), pp. 23–7, 152–3Google Scholar.

14 The distinction between the government's role in social development in Russia and in Western Europe is pointed out in Kavelin, cited above, n. 10, and in Troshchinskii, D. P., “Zapiska Dmitriia Prokofevicha Troshchinskogo ob uch-rezhdennii ministerstv,” Sbornik Imperalorskogo Istoricheskogo Obshchestva (148 vols., St. Petersburg, 1867–1917), III (1868), 45–58, 86–7Google Scholar (see below, n. 22).

15 Cherniavsky, M., Tsar and People (New Haven, 1961), pp. 84–8Google Scholar, argues that the Russians conceived of the tsar as a source of law in himself; his personal will was above society, whereas in Europe the most absolute of monarchs derived most of his power from an extant traditional legal framework (pp. 26–9). The tsars, like the European monarchs, claimed to be the preservers of the law (see, e.g., Ivan IV's charge to the ecclesiastical assembly of 1551 in Le Stoglav, Paris, 1920, pp. 14–25 Google Scholar), but in fact there was not much law to preserve.

16 E.g., Pobedonostsev, K., Reflections of a Russian Statesman (London, 1898), pp. 254–62Google Scholar. It has been a communist dogma that the power of the party leaders is equivalent to the people's freedom. See History of the Communist Party of the Soviet Union (Bolsheviks), Short Course (Moscow, 1951), pp. 79–82 Google Scholar.

17 Many statesmen have recognized that Russia needed legal and constitutional reforms before her people could be “free,” but even these functioned from day to day in absolute dependence on the ruler, and they have recognized the necessity for his supremacy until such time as law was in fact developed. P. A. Valuev, Minister of Internal Affairs from 1861 to 1868, is a good example. He may have been limited in his intellectual horizons and his policies were not always enlightened, but he was generally realistic and relatively straightforward. His diary ( Dnevnik, 2 vols., Moscow, 1961, 1964 Google Scholar) shows him often in profound disagreement with Alexander II and with what he himself had to do, yet never wavering in his conviction that the tsar's absolute power was indispensable for the government of his day. His conviction seems to have been constantly reinforced by his day-to-day experience in the government service (see Zaionchkovskii's, P. A. introduction to vol. I of Dnevnik, pp. 20–1, 26–32 Google Scholar; and Valuev's own entries for 13–14 April 1861, pp. 97–101). On 14 April Valuev conversed with Prince Dolgorukii on the need for a constitution in Russia. Dolgorukii said that Russia needed a constitution but that the tsar was opposed to it; then he asked Valuev what he thought should be done. Valuev replied, “Wait in loyal submissiveness until the tsar changes his mind” (p. 101).

18 See, e.g., Mazour, A., Rise and Fall of the Romanovs (Princeton, N. J., 1960), pp. 72, 89, 108–11Google Scholar.

19 Leontovitsch, V., Geschichte des Liberalismus in Russland (Frankfurt-am-Main, 1957), pp. 25–36 Google Scholar; and Korkunov, N. M., Russkoe gosudarstvennoe pravo, 2 vols. (St. Petersburg, 1909), II, 435–7Google Scholar.

20 Leontovitsch, op. cit., pp. 43–100.

21 Korkunov, op. cit., II, 533–4, discusses the purpose of the zemstvoes and city dumas. Zaionchkovskii, P. A., Provedenie v zhizn krestianskoi reformy 1861 g. (Moscow, 1958), pp. 93–9Google Scholar, describes the organs of peasant government, especially their relation to the central administration.

22 See Troshchinskii, op. cit., above, n. 14. Troshchinskii was a high-level official from about 1793 until his retirement in 1817. He disagreed with the prevailing tendencies in the administration of his time, chiefly the innovations of Michael Speranskii; but his view of Russian society was common among both innovators and conservatives in the government. He said that Russian society possessed no effective political institutions and had no basis for developing them except the power of the tsar. Only the tsar could furnish the necessary leadership to develop the institutions of a modern legal system in Russia. For some comparable Soviet views regarding the role of the ruler in Russia see Hazard, J., The Soviet Legal System, 3 vols. (New York, 1962), I, 5–12 Google Scholar.

It is true that the tsars made many attempts to divide the government into regional units, but none of these were founded on existing social institutions, and in any case they all failed, primarily because regional administrators were as wont to form separate family groups as anyone else in Russia. Rauch, B., Russland (Munich, 1953)Google Scholar, describes the various attempts by Russia's rulers to create federalist systems.

23 The characteristics of Orthodox Church organization are described in Benz, E., The Eastern Orthodox Church (New York, 1963), pp. 43–7, 202–8Google Scholar. Fainsod, Smolensk, op. cit., discusses “family groups” in communist organization in the 1920s and 1930s and Littlepage, J. D., In Search of Soviet Gold (New York, 1937), pp. 8, 13, 42, 160–2Google Scholar, gives examples of status hierarchies in Soviet industrial organization. Raeff, M., “The Russian Autocracy and its Officials,” in McLean, H. et al. , eds., Russian Thought and Politics (Harvard Slavic Studies, Vol. 4, Cambridge, Mass., 1957), pp. 77–91 Google Scholar, describes the hierarchies in the tsarist government prior to 1861.

24 Lazareskii, N. I., Lektsii po russkomu gosudarstvennomu pravu (2 vols., St. Petersburg, 1910), I, 103–261, esp. p. 210 Google Scholar. Max Weber has described the evolution of the modern legal system in Western Europe out of older, family-type forms. See Max Weber on Law in Economy and Society (Cambridge, Mass., 1954)Google Scholar. To use his terms, Russian administrators have tended to organize themselves into a “formal-irrational” system even though the terms and ideals of the written laws have been largely “formal-rational.”

25 From “Gusev,” in The Portable Chekhov (New York, 1947), p. 265 Google Scholar.

26 Troshchinskii, pp. 56–65, 86–8. Dobrin, S., “Soviet Jurisprudence and Socialism,” Law Quarterly Review, Vol. 52 (07, 1936), pp. 402–24Google Scholar, shows that this contradiction has carried over into the Soviet period. Soviet statesmen generally avoid any explicit reference to it, but their habit of demanding legal procedure while simultaneously violating it themselves is well known. The outstanding example was A. Ia. Vyshinskii, who in 1937 was conducting the infamous purge trials with one hand while strenuously working for the observance of law in the government administration with the other. See Morgan, G., Soviet Administrative Legality (Stanford, 1962), pp. 91–116, esp. p. 112Google Scholar.

27 Druzhinin, op. cit., II, 77–8, has shown that this was true of Kiselev's reform legislation of 1837–1838. Lenin said that he used decrees as experiments during the civil war years; see his speech before the Eighth Party Congress in 1919, quoted in Prokopovich, S. N., The Economic Condition of Soviet Russia (London, 1924), pp. 13–4Google Scholar. Hazard calls the constitution of 1918 a “statement of lofty aims” rather than a “set of rules,” op cit., I, 27, and it is clear from Morgan's account, cited above, n. 26, that statutory laws in the Soviet Union have often been ideals rather than norms, op. cit., pp. 49–53, 73–5, 96–116. Michael Speranskii, who did more, perhaps, than any other man to bring law to Russia, explained the difficulties involved in a series of memoranda printed in Proekty i zapiski (Moscow, 1961), especially pp. 17–28 Google Scholar. Speranskii was primarily responsible for the publication of the first Svod Zakonov (Digest of Laws) in Russia in 1833, after almost thirty years of work. He in turn based his studies on more than a century of previous attempts by various commissions, elected and appointed, to organize Russian law into a coherent system. Even with all this preparation, Speranskii denied that the product of his efforts was really a code. See Korkunov, N. M., “Znachenie svoda zakonov,” Zhurnal Ministerstva Narodnogo Prosveshcheniia (Sept., 1894)Google Scholar, reprinted in his Sbornik statei (St. Petersburg, 1898), pp. 77–96 Google Scholar; and Gribowski's, V. review of this article in the Zhurnal Iuridicheskogo obshchestva pri imperatorskom S-Peters-burgskom universitete (01, 1895), pp. 4–6 Google Scholar.

28 Lazarevskii, II, 158; Troshchinskii, pp. 37–41.

29 Boshko, V. I., Grazhdanskaia pravosposobnost krestian v oblasti zemlevladeniia (Kiev, 1917)Google Scholar, gives some idea of the degree to which legal system had entered into the peasant way of life by the end of the tsarist regime. Martynov, B. S., Poniatie zemleustroistva (St. Petersburg, 1917)Google Scholar, describes the difficulties involved in establishing legal definitions of ownership among the peasantry. Dubrowski, S. N., Die Bauernbewegung in der russischen Revolution, 1917 (Berlin, 1929), pp. 37–62 Google Scholar, describes peasant violence in the years before 1914.

30 E.g., P. A. Stolypin's speech of 1 April 1911 to the State Council, in E. V. [erpakhovskaia], Gosudarstvennaia deiatelnost P. A. Stolypina (3 vols., St. Petersburg, 1911), II, 150 Google Scholar.

31 Gronsky, P. P. and Astrov, N. J., The War and the Russian Government (New Haven, 1929)Google Scholar, furnishes a useful chronicle of government organization up to November 1917. The sudden collapse of Russian society in 1917 reflects the flimsiness of social order in Russia and the tensions which still plagued the newly industrializing economy. Between 1917 and 1920 a number of generals and liberal politicians called upon the “Russian people” to overthrow the communists and restore some facsimile of legitimate order. Their appeal would seem to have been reasonable. The communists were in fact usurpers; they forced the Constituent Assembly, the legally elected representatives of the people, to disband. Nevertheless, throughout all Russia there waa almost no response to the generals' appeal except from the non-Russian nationalities, and these were only trying to get free of Russia, not to restore her. In Russia proper almost no one voluntarily attacked the communists and almost no one supported them. In fact, the “Russian people” did not care who ruled Russia nor did they care what happened to their elected representatives. See Footman, D., Civil War in Russia (New York, 1962), pp. 49–55, 104–11, 139–42, 303 Google Scholar.

In Finland the native communists also forced out the elected Diet and seized power, but here the result was quite different. General Mannerheim, who was no more nor less reactionary than the Russian White Army leaders, found himself at the head of a united and aggressive volunteer army made up largely of Finnish peasants actively concerned over who was ruling them. Within four months he was able to drive out the communists and restore legitimate government. He had German help, but it was no more significant than what the Allies gave the Russian White armies. In Finland, then, the tsar's abdication did not seriously weaken society as such, whereas in Russia it represented in fact the removal of a keystone. See Mannerheim, C., Memoirs of Marshal Mannerheim (New York, 1954), pp. 130–83Google Scholar; and Smith, C., Finland and the Russian Revolution (Athens, Ga., 1958), p. 211 Google Scholar.

32 Adams, A., Bolsheviks in the Ukraine (New Haven, 1963)Google Scholar, portrays the emergence of essentially hierarchical relationships among the Bolshevik leaders out of the actions they undertook in the Civil War. In general these relationships seem to have developed against the will of the leaders themselves. See esp. pp. v–viii, 28, 116–27.

33 Morgan, op. cit., pp. 22–3.

34 A good chronicle of the early disappearance of democracy and the growth of a hierarchy of personal rule in both government and party emerges from Sverdlov's speeches and dispatches. See the last two volumes of Sverdlov, I. M., Izbrannye proizvedenniia (3 vols., Moscow, 1959)Google Scholar.

35 Speranskii, loc. cit., n. 27, pp. 80–1, 105–25.

36 Bentham, J., The Principles of Morals and Legislation (New York, Hafner Publishing Co., 1961), pp. 3–4 Google Scholar; Mill, J. S., On Liberty (Chicago, Henry Regnery, 1949), pp. 95–6Google Scholar; and Smiles, S., Self-Help (New York, n.d.), pp. 293–7Google Scholar.

37 Triska, J., ed., Soviet Communism: Programs and Rules (San Francisco, 1962), pp. 112–3Google Scholar.

38 Eisenstadt, S. N., The Political Systems of Empires (Glencoe, Ill., 1963), pp. 13–27 Google Scholar.

39 Korkunov, op. cit., I, 417–50.

40 Speranskii, loc. cit., pp. 56–67.

41 J. D. Littlepage's description of Russian behavior patterns, based on his experience as a mining engineer in the Soviet Union, shows the effects of this fragmentation on Soviet organization at all levels during the early 1930s. See his In Search of Soviet Gold, cited above, n. 23.

42 Speranskii, loc. cit., pp. 105–6.

43 Weidle, V., Russia: Absent and Present (New York, 1961), pp. 34–7Google Scholar; Cherniavsky, op. cit., pp. 71–96.

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