The Research Seminar "Boundaries of History": Tatiana Borisova “Timing of Law in the Autocratic Empire”

On February 16, 2017, Tatiana Borisova, PhD, Associate Professor of History at Higher School of Economics National Research University, St. Petersburg, gave a presentation titled "Timing of Law in the Autocratic Empire" at the regular Research Seminar "Boundaries of History" of the Higher School of Economics in Saint Petersburg. 

According to the paragraphs of article 15 of current Russian constitution people have the right to be informed about laws and the state is obliged to publish them. A question of research made by T. Borisova is: why it is that? Why it is so important to put in the basic law of Russian Federation the detailed provision on obligatory publication of law? From comparative legal perspective this is not a very common provision to put it into constitution that laws should be published – this is general understanding that law should be published. The question is why we have this obsession with publishing of law and what does this obsession of Russian rulers to publish law says about Russian political and legal order in long-term perspective?

To answer these questions, she studied how pieces of legislation become law in books and how this law in books is made accessible to people and why is that.

Already in the Council Code of 1649 (Соборное уложение) there was an idea to provide «equal judgment and justice in all matters for all people of whatever rank, from the high to the low». In literature, basically there are three approaches on how to deal with this kind of sources, so called fostering legality claims. The first approach is extremely critical. According to first foreigners coming to Russia in XVI-XVII century, Muscovite state was a state without law. The second is an optimistic positivist descriptive approach of predominantly Russian scholars about the progressive development of the Russian law from the XIX century. The third is pragmatic functionalist approach, whose followers are interested in workings of Russian law, ideas and institutions included in the system of Russian law and how they change. From pragmatic approach law is important as a mean of order and justice that the tsar through his intermediaries brings to people. That is why intermediaries of the law are important part of the research – who were those people who made law working?

Even though the distribution of law was an important part of legal imperial policy over empire, it did not necessarily implied unify implementation of legal norms. Already in early modern state there is this discourse of fostering legality. One of the most important means of fostering legality were legal technics namely publication, systematization and making the books of law usable.

Peter the Great, the first Russian absolutist, was one of the strongest supporters of the idea of obligatory publication of law. In 1714 he published the Decree on obligatory publication of laws, according to which laws «related to general affairs of the State and needing to be announced to the entire population» were to be sent, «as before, to governors in the provinces, and to judges in the departments; and for announcement to the people they were to be printed at the printing house and put on sale to all, so that all may be informed of them». This was utopian idea, because of people`s illiteracy. On the contrary, the clergies from Russian churches were made to read aloud the Decrees. Here the difference of written and printed texts is seen clearly. From the point of view of the sovereign the printed text is different in a sense that written law is misused, corrupted – that was a problem which sovereign always had in his mind. That is why obligatory publication was an issue and that is why in XVIII century the collection of Russian laws had almost 30 decrees on obligatory publication of law – the sovereign is persisted that the law should be published.

There is an understanding that especially if the legislation implies repressions, they should be published and show them in printed version (1799, Decree of Senate). Senator Peter Shuvalov insisted that usage of printed instructions on suppression of peasants rebels in 50-s would help to prevent a bloodshed during repressions and rebels itself.

The distribution of legislation did not absolutely mean the unify implementation and enforcement of the legislation. From legal point of view Russian cases interesting since it exposes two central themes. On the one hand, there is legal certainty problem. From the other hand, there is flexibility, based on diversity of empire and discretion as a very important mean of ruling an empire.

Enforcement of law to very large degree was up to concrete circumstances in a particular province. The execution of legislative power in particular regions implied some remarkable discretion in laws enforcement. That was a part of legislative politics in general. There was that understanding that empire is different in speeds of development and that is why the imperial legal rule should be flexible to different moans of usage of law.

Also there was differentiation of the social groups via law. The tsar was a guarantor of rights apach of social status. These rights recognized that various groups had their own traditions that should be protected by law. Tsar is a protector of privileges of different peoples and their statuses within Russian empire. So, the very idea that it could be a law of Russian citizens was not perceived as a practical one, because there was not such a concept of a Russian citizen.

There was flexibility both in geography and social strata of society, which was recognized by Russian legal system above the rules of inclusion of local people in administration. Local people were welcome to take part in government and judicial process to form the 2 group of legal intermediaries of Russian law.

Before 1864 (Court Reform) there was no clear criteria on taking this job of intermediary of law in Russia. The basic criteria was the ability to read legal sources. However, in some areas literacy was desirable but not required – in volost courts local judges were not even supposed to be literate. Literacy was not required because he would be assisted by a clerk in this volost. In general, ability to work quickly with legal sources was the basis of work of local Judaification and the development of legal professionalism in Russia. Before the beginning of XIX century the issue of higher education in law was not considered as a meaningful prerequisite of judicial institutions and implementation of law in general. Stress was on technical and instrumentalist aspects of law usage.

Starting from the XIX century with the development of higher education the situation changed. Russian intellectual elites voiced many concerns about clerical justice (канцелярское судопроизводство), provided by uneducated clerks. Criticism of technical letter of loan approach in Russian and lack of real legal professionalism which would imply theoretical training in law and following theoretical principles of law had become very important trajectory in discourse of Russian law. What we have in Russia this is not really a law: this is instructions, not the law.

This people who got higher education in law joined the third group of intermediaries of Russian law, trained legal experts and entrepreneurs employed in both public and private sectors. Even though practice oriented legal expertise brought income many of them who received this education were severe critics of Russian law. Their critic included two major features, which modelled modus operandi: 1) technicality in legal operations 2) open endedness of interpretation of a corpus of law.

One of major objects of their critic was the digest of laws of the Russian empire, which was the key source of the late imperial Russia (Cвод законов Российской империи), which was made in late 1820-s. Unlike revolutionary codifications of Napoleons with key revolution principles, this law comes from the existing Russian law and based on traditional law of Russian people. So all the principles which are in law they are taken from the realities of Russian life and not in many respect that could be a connection with any natural law principles. Natural law discourse was supposed to be dangerous for Russian autocracies, that is why there always were problems with teaching natural law, publishing natural law. Only sovereign was a source of law in Russia.

The idea was that the Russian law is a living tradition of Russian people. Every new piece of legislation will be incorporated in the system of digest: the legislator writing a new piece of legislation indicates clearly what part of the digest is going to be changed with a new law. However, it did not work in practice. Legislators appeared to be quite reluctant in defining what are the legal consequences of the norm. Instead of clear indication what particular provisions of the digest of laws of the Russian empire changed there was introductory fraise that legislator used as a formula. So, no clear indication what is actually changed in the existing law and what particular articles of the digest are changing. Somehow legislators tried to put their responsibility including the new norm in existing system of Russian law on codifiers, who made new additions and continuations of the digest of laws of the Russian empire. They were the most important intermediaries of the law. They had to decide what does the new law actually change in the system of the digest. They worked according to secret instructions, which were no published until 1885. In accordance to them every piece of legislations had to be analyzed – in what particular part of the digest changes should be made and then in every part of the digest innovations had to be made in relation to this new norm. The possibility of mistakes was extremely high and those people were crazy over award. So Russian legal professionals of XIX century found many mistakes in how the law should work. For the huge empire the discretion (усмотрение) of local authority was kind of legalized in a sense that every governor and every official had actually three norms of law in hands. From one hand, an original law signed by the tsar. From the other hand, the norm codified in the digest. The third would be the previous edition of the digest. So there was a choice of what legal order to follow. But on the other hand, people had different means to protect their rights through law: array of courts, appeals to the procures, petitions. There were many possibilities of using the law, which was an important part of an imperial legal rule.

Another important part of criticism about Russian law was not separation of powers in Russia in a sense that administrative, legislative and judicial power were not effectively separated. Even after the reform of 1864 the problem of unseparative of administrative and legislative power was a huge one, because all the governmental agencies were issuing number of regulations. The problem was – are these regulations of generally importants or not. The whole system of the Russian administration was built up around Russian sovereign, which made the particular institution the powerful person since the possibility to get to the emperor.

To decide on what is administrative act was hard from theoretical point of view because the tsar who signed everything. In 1862 - collection of Russian legislation published by government (собрание законов и узаконений правительства). All the acts published in this particular edition have the force of law. Everything that is not published there is not relevant for general population. The idea as that people should use and protect law. To certain extant it should compensate that people do not really participate in making law.

To sum up, the Russian legislator considered law as a means of governing above anything else. Thus, making of law and guarantees of its rightful enforcement were perceived as the exclusive sphere of sovereign and those to whom he delegated his power in the regions. According to legal professionalism, the accessibility of the published law and judicial process, which were supposed to bring fair and legal certainty, made the law itself and its markers targets for severe critique by a new generation of professional lawyers and political activists.

Speech by Tatiana Borisova was ended by a vivid discussion during which were discussed in more detailed perspective on specific Russian legislative situation and the forms of works with codification of laws.

Report was prepared by Margarita Pavlova