The Rule of Zakon : The Criminal Cassation Department and Legality in Late Imperial Russia, 1866-94

The Rule of Zakon: The CriminalCassation Department andLegality in Late Imperial Russia,1866–94GIRISH BHAT

Russia’s 1864 judicial reform sought to elevate, expedite, and modernize the process ofjustice throughout the autocracy’s vast Eurasian empire. This ambitious project, as one ofthe “Great Reforms,” continues to spark debate on questions such as: By the turn of thetwentieth century, was the late imperial Russian legal system starting to bring theWesternizing aspirations of the 1864 judicial reform to fruition? Were the new courts andtribunals a stimulus to growing compatibility between the norms of European legal practiceand the ways of evolving Russian legal culture? Did the novel institutions and proceduresof the 1864 judicial system foster an increasingly mature understanding and use of the lawamong the populace?

These large issues have by now generated a substantial literature on prerevolutionaryRussian law and society, and work on Rus' and early modern Russia has demonstrated thatthe millennium of legal development before 1917 was an essential component of Russianhistorical identity. To some degree, scholars of the late empire persist in asking whetherRussia, in its laws and legal institutions, in its politics, and in its social and cultural workings,was genuinely approaching the rule of law, or at least a German-style Rechtsstaat (law-based state) by the eve of World War I. This “rule of law” debate is fully consistent with thecontemporary global prevalence and influence of the west’s conception of the law and howit should function.1 Yet measuring Russia’s legal evolution by Western models and standards,

The author is extremely grateful to Amy Henderson-Harr and the Office of Research and Sponsored Programsat SUNY Cortland for travel funding in support of the research for this article. The author would also like tothank the article’s two anonymous reviewers for their thorough and exacting critique of draft versions of themanuscript. Finally, appreciation and thanks are due to Scott Moranda, Gigi Peterson, Lisi Krall, and SharonSteadman, fellow faculty writing group members at SUNY Cortland, for their encouragement and helpfulsuggestions throughout the manuscript’s progress.

1See Richard Wortman’s balanced and provocative review of the debate’s status, “Russian Monarchy andthe Rule of Law: New Considerations of the Court Reform of 1864,” Kritika: Explorations in Russian andEurasian History 6 (Winter 2005).

The Russian Review 72 (October 2013): 622–46Copyright 2013 The Russian Review

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and with a Western-derived lexicon, while justified given the increasing Europeanizationof many Russian institutions of governance and justice by the end of the imperial era,can underestimate substantive achievements in Russian law in the final decades beforethe revolution.2

This article seeks to contribute to the “rule of law” debate by exploring the mostrepresentative decisions, among dozens canvassed, issued by imperial Russia’s highestcriminal appeals court, the Criminal Cassation Department of the Ruling Senate, during thefirst generation of the reform era.3 An examination of the Criminal Cassation Department’sreasoning and analysis regarding varied conceptual aspects of criminality reveals generalpatterns and priorities in its resolution of disputes. These decisions or resheniia reflectedan approach to justice similar to the rule of law and the Rechtsstaat in that their corephilosophy was the absolute priority of law, but in fact, as will be argued here, the objectiveof the Criminal Cassation Department was more limited and modest than the rule of law orthe Rechtsstaat, and more in keeping with Russian historical practice.4 This objective, orjudicial cast of mind, is best designated as “legality,” or, in the language and historicalpractice of the Russians’ own ample legal heritage, zakonnost'.5

Regardless of historical context, the concept of legality affirms the active and purposefulpresence of law through the application and enforcement of agreed behavioral norms andsanctions. In the Russian experience, centuries of customary law and oral legal traditionreflected the enduring strength of “peasant” legality, as recent work on law and justice innineteenth-century Russian village life demonstrates.6 Russian zakonnost' as politicalinstrumentalism, arguably rooted in the promulgation and implementation of the law codesof Rus', emerged explicitly under the purview of autocracy as early as the Petrine period.7

2Natasha Assa, “How Arbitrary was Tsarist Administrative Justice? The Case of the Zemstvos’ Petitions tothe Imperial Ruling Senate, 1866–1916,” Law and History Review 24 (Spring 2006): 1, 4, 5, 15, 16, 40, 42,employs a wide range of analogous terms for the “rule of law,” such as pravovoe gosudarstvo, “legality,”zakonnost', and “modern legal state.” Also see William Wagner, “Civil Law, Individual Rights, and JudicialActivism in Russia,” in Reforming Justice in Russia, 1864–1996, ed. Peter H. Solomon, Jr. (Armonk, NY,1997), 21-43; and Girish Bhat, “Recovering the Historical Rechtsstaat,” Review of Central and East EuropeanLaw 32:1 (2007): 75–83, 95.

3Given that the cassation departments functioned essentially as courts, for the sake of convenience, theCriminal Cassation Department will henceforth generally be referred to either as “Criminal Cassation” or “theCourt.”

4Also widely referred to in the historiography of the judicial reform era as “rulings”; the rather humbler term“opinion,” from American judicial usage, will be employed here occasionally as well.

5The word zakon (a statute or specific law as distinct from pravo, law in the abstract, or a body of law) andits many derived forms had ancient roots. See Valerie Kivelson, “Sovereign, Have Pity Upon Me: Anomalies inMuscovite Sentencing,” and Simon Franklin, “On Meanings, Functions, and Paradigms of Law in Early Rus',”both in Russian History/Histoire Russe 34 (Winter–Spring 2007): 331, and 63–65, respectively.

6See Stephen P. Frank, Crime, Cultural Conflict, and Justice in Rural Russia, 1856–1914 (Berkeley, 1999);Cathy Frierson, All Russia is Burning! A Cultural History of Fire and Arson in Late Imperial Russia (Seattle,2002); and Jane Burbank, Russian Peasants Go To Court: Legal Culture in the Countryside, 1905–1917(Bloomington, 2004).

7Daniel Kaiser, The Growth of Law in Medieval Russia (Princeton, 1980), 14; Istoriia Pravitel'stvuiushchagoSenata za dvesti let, 1711–1911 gg., 5 vols. (St. Petersburg, 1911), 1:282–83, 295–97; W. Bruce Lincoln, TheGreat Reforms (DeKalb, 1990), 7–9.

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The law was viewed as a symbol and lever of autocratic power, and became one pillar ofthe manifold authority of every Russian monarch, as Richard Wortman has shown.8

Taking the instrumentality of law in a different direction, and in an effort to improveautocratic rule and enhance monarchical legitimacy in the context of seventeenth- andeighteenth-century challenges to European dynastic power, early-to-mid nineteenth centurytsarist officials and bureaucrats, whether conservative or reformist, advanced the goal of anautocratic state for which law was a crucial tool of authority, but equally a means, alongwith efficient justice administration, to regulate and govern society in a more enlightenedmanner. This ideal reflected a largely mechanistic commitment to clear, codified rules andlegal process, and, later elaborated with sophistication by theorists such as Max Weber,became essential to the conservative, statist German tradition of the law-based state orRechtsstaat, distinct from the Anglo-American, common law tradition of the rule of law.9

At the other end of the political and philosophical spectrum, and opposed as a wholeto the Russian tradition of instrumentalist law and thus hostile to the tsarist regime’shistorically extensive intrusion into many aspects of Russian life, emerged yet another typeof legality, born of the “natural law” tradition in eighteenth century European politicaltheory and jurisprudence.10 Based to some degree on the autocracy’s own declarations ofjustice and equal treatment, however qualified, for imperial subjects in both the FundamentalLaws of 1832 and 1906, this conception of the law’s role led, by the late empire, to increasingand broad-based calls for civil rights and greater legal autonomy for civic and social groups.11

On a broader scale, zakonnost' gained new and varied currency as a term throughout the

8Richard Wortman, Scenarios of Power: Myth and Ceremony in Russian Monarchy, 2 vols. (Princeton,1995–2000). This study’s reaffirmation of the Romanov dynasty’s centrality throughout Russian state andsociety recuperates the “statist” model for understanding Russia’s prerevolutionary political culture whilemodifying and infusing it with compelling textual, semiotic, and representational elements. See also TatianaBorisova, “The Digest of Laws of the Russian Empire: The Phenomenon of Autocratic Legality,” Law andHistory Review 30 (August 2012): 924.

9See editors’ introduction to chapter 11 in Russian Officialdom, ed. Walter M. Pintner and Don Karl Rowney(Chapel Hill, 1980), 283–84; and Marc Raeff’s collected essays in Political Ideas and Institutions in ImperialRussia (Boulder, 1994). Of particular relevance in Political Ideas are “Russia After The Emancipation: Viewsof a Gentleman-Farmer” (1951), 9, “Some Reflections on Russian Liberalism” (1959), 34–39, “Introduction toPlans for Political Reform in Imperial Russia, 1730–1905” (1966), 101, and “The Well-Ordered PoliceState and the Development of Modernity in Seventeenth- and Eighteenth-Century Europe: An Attempt ata Comparative Approach” (1975), 322–23. See also Lincoln, Great Reforms, 16–17, 163–64; and DavidL. Ransel, “Pre-Reform Russia, 1801–1855,” in Russia: A History, ed. Gregory L. Freeze (Oxford, 2009), 171,175, 187.

10P. Liublinskii, Sub verbo “Zakon,” in Entsiklopedicheskii slovar', ed. Iu. S. Gambarov et al., 53 vols.(Moscow, 1910), 20:466.

11William Butler, “Civil Rights in Russia: Legal Standards in Gestation,” in Civil Rights in Imperial Russia,ed. Olga Crisp and Linda Edmondson (Oxford, 1989), 5–8; and, in the same volume, S. A. Smith, “Workersand Civil Rights in Tsarist Russia, 1899–1917,” and G. R. Swain, “Freedom of Association and the TradeUnions, 1906–1914.” With respect to the pursuit of legality in a professional association see Jane Burbank’s“Discipline and Punish in the Moscow Bar Association,” Russian Review 54 (January 1995): 44–64. See alsoAssa, “How Arbitrary was Tsarist Administrative Justice?” who provides a fuller account of the new Russianlegal elite’s view of zakonnost'; and Laura Engelstein, The Keys to Happiness (Ithaca, 1992), which frequentlynotes Criminal Cassation’s liberal and even somewhat modern jurisprudence regarding laws on rape, sodomy,prostitution, and public morality.


nineteenth century, especially after the 1864 judicial reform, both in jurisprudence andmore widely among imperial Russia’s educated elites.12

As the foregoing suggests, a clear dimension of Russia’s legal development, and aprevalent theme in the current literature on Russian law and society, was the persistentabsence of a unitary, cohesive legal system or culture. The final decades before theRevolution stand out for the continued existence throughout Russia of numerous distinct“legalities,” “disparate” realizations of law, separate “legal orders,” “patchwork” or“indeterminate” legal cultures, and even, in Alfred Rieber’s conception, law as simply oneform of “sedimentary society.”13

This study focuses on one of these many realms of law and legal activity, the particularform of legality or zakonnost' practiced by the Criminal Cassation Department. Such legalitysignified a steadfast respect for existing, codified laws and sanctions, or the notion of fidelityto that which is prescribed by statute, to the law as opposed to law in general; it was rootedin a belief in the integrity of the law first and foremost as statute.14 Zakonnost' in this sensesought to give written law a type of “autonomy,” to vest it with renewed authority andlegitimacy. Criminal Cassation was dedicated to interpreting, applying, and enforcing onlyformal law, such as the penal code promulgated in 1845.

One of the Court’s central goals as a judicial body was to shift Russian legal praxisaway from nonliterate traditions or more customary, popular notions of justice andpunishment, and away from the acceptance of directives or regulations by administrators,governmental officials, or police as effective law. Criminal Cassation’s embrace of thisform of zakonnost' placed the judicial body solidly in the context of eighteenth- andnineteenth-century European development, when rational, systematic, nationally orientedstatutory codes became the norm for addressing the gravest criminal offenses against publicsafety and order, and codified law became the cornerstone of the English common lawideal of the rule of law and the continental European notion of the Rechtsstaat.15

Yet at the same time, the Court’s view of its role in the 1864 judicial system reflectedphilosophical and pragmatic tensions in the West’s legal tradition and set its zakonnost'apart in doctrine and practice. A true rule of law, whose ideal and attempted practiceoriginated in the English common law heritage, would have placed every individual in

12Sudebnye ustavy 20 noiabria 1864 g. za piat'desiat let (Sudebnye ustavy 1864), 3 vols. (Petrograd, 1914),2:708, 710. See also Dominic Lieven, Russia’s Rulers under the Old Regime (New Haven, 1989), 178–79,182, 186; William Wagner, Marriage, Property and Law in Late Imperial Russia (Oxford, 1994), 6; Wortman,“Court Reform,” 149–50; and Wagner, “Civil Law, Individual Rights,” 35–36.

13Wortman, “Court Reform,” 149–50, 154–55, 162, 163 n.38, 169–70 nn. 62, 63; Brian Levin-Stankevich,“Cassation, Judicial Interpretation and The Development of Civil and Criminal Law in Russia, 1864–1917:The Institutional Consequences of the 1864 Court Reform in Russia” (Ph.D. diss., SUNY Buffalo, 1984), 9,37–41. See also Franklin, “Paradigms of Law,” 63–81; Gianmaria Ajani, “The Rise and Fall of the Law-BasedState in the Experience of Russian Legal Scholarship: Foreign Scholarship and Domestic Style,” and HaroldBerman, “The Rule of Law and the Law-Based State with Special Reference to the Soviet Union,” both inTowards the “Rule of Law”in Russia? ed. Donald D. Barry (Armonk, 1992), 3–6, and 47–48, respectively; andE. A. Pravilova, Zakonnost' i prava lichnosti: Administrativnaia iustitsiia v Rossii, vtoraia polovina XIX v.–oktiabr' 1917 (St. Petersburg, 2000), 89–95.

14Wagner, Marriage, Property, 5, 7–8.15H. Patrick Glenn, Legal Traditions of the World (New York, 2000), 124–25; V. Nechaev, sub verbo “Zakon,”

in Entsiklopedicheskii slovar', ed. F. A. Brokgaus and I. A. Efron, 86 vols. (St. Petersburg, 1894), 23:178.

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imperial Russia, including the autocrat and others who were part of the machinery of upperadministration, in codified subjection to formal legal authority, and would thereby haveextended beyond the legal system to comprise both governance and civil society.16 TheFundamental Laws of 1832, and even a revised version of them in 1906, made suchsubordination impossible at the highest levels because the autocrat, despite the formal lossof divine sanction for the exercise of power by the advent of the Duma period, retainedpolitical and legal supremacy in Russia’s nascent constitutional order.17

With regard to the autocracy’s execution and enforcement of the law, and its historicaltreatment of law as an instrument of monarchical power, Criminal Cassation did not challengethe state’s basic role in policing society, preserving basic lawfulness, and administeringjustice. Furthermore, although the 1864 judicial reform provided the means by whichordinary state officials could be formally held responsible for their actions, the Courtgenerally paid judicial deference to the effective insulation of the tsar and higher tsaristofficialdom from legal accountability even under the 1864 reform.18 The rest of the tsar’ssubjects, of course, were to be bound by the law. Thus, Russian society as a whole stillfaced a considerable task in its pursuit of universal legal equality on the eve of the FirstWorld War.19 The Court’s vision of legality did not necessarily seek or even envision suchuniform equality regardless of occupation, rank, or status.

Nor did it necessarily aspire to the Rechtsstaat ideal, in which citizens of the state aresubordinate to the law, and in which the central political authority, through its courts,bureaucracy, and general executive apparatus, governs society and administers justiceimpartially according to clear and carefully elaborated legal codes.20 The Criminal Cassationcourt, as noted above, did not attempt to question the Russian autocracy’s preeminent rolein political life and justice administration, nor its exceptional status before the law. In thisrespect the Court’s outlook may be likened to the Rechtsstaat model of governance andlegal life. The Rechtsstaat also binds citizens to statute, but the state remains at the centerand in many ways above the polity. The Rechtsstaat’s success derives fundamentally from

16On the status of individual civil rights in the late empire see Butler, “Legal Standards in Gestation,” 10–11. Wortman uses a number of common “rule of law” equivalents with discrimination, and his ultimate preferencefor “law-based state” (the closest English equivalent to the Rechtsstaat) shifts away from the “rule of law” as anormative label (“Court Reform,” 153, 170). See also Wagner, “Civil Law, Individual Rights,” 28 n.25; andthe classic, enduring formulation of the rule of law ideal in A. V. Dicey, Introduction to the Study of the Law ofthe Constitution, 8th ed. (London, 1927), 183, 189–92.

17With respect to the distinctions between zakonnost' and the rule of law in Russia’s codification of lawthroughout the nineteenth century see Borisova, “Digest of Laws,” 902–3.

18Pravilova, Zakonnost' i prava lichnosti, 28–29; Jonathan Daly, “Political Crime in Late Imperial Russia,”Journal of Modern History 74 (March 2007): 70; B. N. Mironov, Sotsial'naia istoriia Rossii perioda imperii(XVIII–nachalo XX v.), 2 vols. (St. Petersburg, 2003). Mironov concurs with Pravilova’s association of zakonnost'primarily with the defense of individual civil rights, and portrays the autocracy as almost benign in its generalfostering of modernity. He depicts the 1864 reforms, therefore, as less of a progressive watershed, and more ofa modest continuation of positive tendencies already apparent before 1864 (2:109–16).

19Butler, “Legal Standards,” 7–8. In his Autocratie und Justiz: Zum Verhältnis von Rechtsstaatlichkeit undRückständigkeit im ausgehenden Zarenreich, 1864–1914 (Frankfurt am Main, 1996), Jörg Baberowski agreeswith Mironov regarding the tsarist regime’s broadly progressive historical role, yet deems the innovations of1864 premature and thus detrimental to legal modernization. For a considered perspective from the prewaryears see Istoriia Senata 4:377.

20Ernst-Wolfgang Böckenförde, Recht, Staat, Freiheit (Frankfurt am Main, 1991), 155–58.


the state’s enforcement of legal rules and regulations, from its maintenance of an orderlycivic life, through its various executive and administrative arms. The “law-based state” isnot invested with divine authority, nor does it bear the presumptive majesty and historicalsupremacy of the nineteenth-century Romanov monarchy. Nevertheless, the Rechtsstaat’sgoverning bodies and administration do possess extraordinary legal status in that the coreof the Rechtsstaat is a powerful central state based on law, rather than a state serving andsubordinate to civil society, or a state that is truly an instrument of the law. The law iswielded, with civic-minded purpose, by central authority.21

The conception of legality advanced by Criminal Cassation distinguished itself fromboth the English and continental traditions by firmly asserting the role of the judge, and thejudiciary overall, in the practice of Russian justice. Both the rule of law and the Rechtsstaat,in their proper, ideal form, uphold the function and power of statutory law, but in the rule oflaw statute is accepted and treated as standing apart and above and binding everyone equally,regardless of socioeconomic or political hierarchy, while in the “law-based state” the forceof statute or formal law binds citizenry by means of a formally hierarchical relationshipbetween state (and its judicial system) and society. The government in a Rechtsstaat animatesthe law by enforcing statute; it is through the state that the virtues and benefits of law arerealized, and statute, fundamentally contingent on political and institutional authority, doesnot possess the autonomous force that attaches to it under the rule of law.

Russia’s Criminal Cassation Court assigned supreme value and authority to formalstatute in the judicial setting, and was in this regard akin to the judges and courts of the“civil law” countries of nineteenth-century continental Europe, such as France, but in itsassertive and self-conscious view that its published opinions should guide and instruct thelower courts, the Court functioned in the “judge-centered” common law tradition.22 TheCourt saw the judiciary as the crucial pillar in the new edifice of Russian justice, andemphatically viewed itself as the final arbiter of the law, and thus the true source of thelaw’s meaning and intent. In this role, the Court insisted on a juridically precise enactmentof statute, in accord with its central concern that written law be rigorously and accuratelyunderstood solely by the standards of jurisprudence.23

At the same time, the Court also understood and endorsed the roles of the executiveand legislative elements of the Russian autocratic system, and did not concern itself withthe ultimate efficacy of its judicial work beyond the court system. Those were mattersoutside its proper jurisdiction, as they would be in any polity with a fundamentallyindependent judiciary. Criminal Cassation proposed a kind of “essentialism” of the law,

21Ibid., 167–69.22John Merryman, The Civil Law Tradition, 2nd ed. (Stanford, 1985), 34, 37. Also worth noting is that in the

basic structure of its court system, post-1864 Russia resembled continental and civil law Europe, with thecourts of cassation adapted from the French model, while the eventual judicial role that Russia’s cassationcourts established for themselves was comparable to the common law tradition of a supreme or “apex” court inthe system (ibid., 85–86).

23Assa notes that in the Senate’s First Department, which resolved judicial disputes regarding tax complaintsraised by zemstvos, “new methods of legal reasoning,” characterized by the strict, even-handed understandingand application of statute, were evident after 1864, and coincided with gradual judicial influence from theparticipation of a small number of senators from the Criminal Cassation Department (“How Arbitrary wasTsarist Administrative Justice?” 6–8, 11–14, 17, 41).

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under Russia’s new judicial system, in order to uphold the integrity and autonomous powerof zakon, of formal statutory law. The Court’s zakonnost' thus mediated between the ruleof law’s absolutist application of law and the state-centered, instrumentalist conception oflaw at the basis of the Rechtsstaat and Russian autocracy.

The Criminal Cassation decisions on which this study’s central arguments are basedwere published in accordance with the 1864 statutes, which stipulated that both the Civiland Criminal Cassation departments regularly publish a full-text selection of their rulingsfor the guidance of lower courts.24 The volume of cassation appeals proved significantfrom the start, and an ever-expanding annual caseload had already vastly exceeded theCriminal Cassation Court’s staffing and resources less than a decade after the new systembegan to function.25 As a result, the number of published Criminal Cassation decisions, inthe many hundreds annually until the mid-1870s and falling back thereafter to approximatelya hundred per year because of sensible structural reorganization within the Criminal CassationDepartment, always represented a small portion of appeals received and resolved.26 Theserulings, of varying length, were organized into categories reflecting different types andfeatures of the criminal act, such as decisions relating to criminal intent.

A representative sampling of Criminal Cassation decisions from throughout the firstgeneration of the 1864 judicial reform, culled from published resheniia over the period1866–94, was chosen for analysis and interpretation.27 During these years, the Court’soutlook on the role of statute (zakon) in judicial decision-making emerged; by themid-1890s the primacy of statute as the core principle of the Court’s resolution of appealswas well established. The development of this statute-based legality was not halted orfrustrated by the so-called judicial counterreform efforts pursued by the tsarist regime insubsequent decades. A series of administratively centralizing changes to the 1864 courtsystem did diminish the judiciary’s jurisdiction and involvement in certain types of casespolitically sensitive to the autocracy, but within the Court’s considerable scope of independentjudicial review, which remained intact, the jurisprudence of Criminal Cassation progressedand was not affected by the regime’s success in scaling back elements of the 1860s reforms.28

Statute-based zakonnost' remained the touchstone of Criminal Cassation decisions untilthe close of the late imperial period.29 The Court’s work under the first two reform-era

24Sudebnye ustavy 1864.25In 1873, for example, Criminal Cassation received over six thousand appeals, and from 1867 to 1874 the

number of undecided cases annually, forming part of a steadily growing backlog, rose from roughly fourhundred to over seven thousand (Levin-Stankevich, “Cassation, Judicial Interpretation,” 309–10). For a widerstatistical portrait covering 1866–1912 see Za piat'desiat let 2:371. Data on caseload and publication suggestcomparable trends for the Civil Cassation court’s activity from 1867 to 1914 (Wagner, Marriage, Property,48-52).

26Levin-Stankevich, “Cassation, Judicial Interpretation,” 313–17.27Even though the Senate’s published cassation decisions represented only a small portion of the appeals it

heard, the very act of publication meant that the case and written opinion in question went beyond the routineand ordinary, and had caused the members, whether in the Civil Cassation or Criminal Cassation department,to resolve and rule on contested, still-evolving points of law that were of import for the entire legal system.

28Levin-Stankevich, “Cassation, Judicial Interpretation,” 319–20, 368; Wagner, Marriage, Property, andLaw, 52–55; Gregory L. Freeze, “Reform and Counter Reform, 1855–1890,” in Russia: A History, ed. GregoryL. Freeze (Oxford, 2009), 229, 231; Lincoln, Great Reforms, 188–91.

29Istoriia Senata 4:100–101, 339, 345; Za piat'desiat let 2:314, 316–18.


autocrats, Alexander II and Alexander III, thus serves as an appropriate focal point forthis study.

As distinct from studies of crime and criminality, of the content and impact of criminallaw, or of the attitudes of society, lawmakers, and the tsarist regime toward criminal lawand crime policy, the most serious attempt to describe the jurisprudential style or mode ofdecision-making in Russian criminal law in the reform-era has been Brian Levin-Stankevich’s1984 dissertation on legal and institutional development under the judicial reform viewedthrough the lens of civil and criminal cassation activity.30 Yet Levin-Stankevich’s illuminatinganalysis of the juristic rigor and self-conscious professionalism of the Criminal CassationCourt focuses on the Court’s formative role in establishing the power of judicial precedentthroughout the judiciary, and does not derive principally from a close reading of the judicialdecisions themselves.31

Furthermore, Levin-Stankevich argues forcefully that the zakonnost’ reflected in thework of Criminal Cassation was at its core a defense of the law against the authority of thetsarist state, an interpretive motif going back to the judicial reform period itself.32 By themid-nineteenth century, the political imperatives that had animated Russian tsars since theadvent of Muscovite autocracy had largely subordinated the law to the needs of Russianstate institutions. Accordingly, the imperial criminal law system, in view of its embodimentof society’s effort to mediate the constant tension between the state and the individual,operated under certain undeniable constraints even after 1864.33 However, emphasizingthe antistatist, ideological, and even political nature of the Court’s activity significantlydiminishes its effort to develop, refine, and justify zakonnost' as a more neutral, even-handed pillar of the 1864 system. At bottom, this study concentrates on the technicalmanner of the Court’s resolution of legal disputes, or how it read and interpreted the law.What might be gleaned from the Court’s decisions regarding its outlook on late imperialRussian crime or political and social unrest is not of central concern. The focus falls on

30Prerevolutionary legal scholars commented extensively on Criminal Cassation’s treatment of civil cases incriminal courts, but tended to focus more narrowly on technical legal and procedural issues, such as the monetarylevel of civil settlements, rather than on larger questions of judicial mentality and doctrine (Za piat'desiat let2:459–60). Wagner’s Marriage, Property, and Law represents such a larger, more thematic study of reform-period civil law. He argues that the Civil Cassation Department came to regard itself, through its rulings anddecisions, as an active producer of law that would effect change; he likens the civil cassationists’ long-termgoals and impact in reshaping marriage law and the legal status of household property to the ideals and effortsof the nineteenth-century German Rechtsstaat in the area of family law (pp. 4–6, 112, 207–21). Engelsteinsimilarly contends that a broad social, moral, and political agenda lay behind the late imperial autocraticregime’s attempts to adjust and reform criminal law with respect to rape, sodomy, and sexual matters in general(Keys to Happiness, 27–28, 39–45).

31The Criminal Cassation court’s “civil law” counterpart, the Civil Cassation Department of the RulingSenate, made substantial use of precedent, as Wagner’s Marriage, Property, and Law has demonstrated.

32The writings of late imperial jurists N. P. Karabchevskii and S. A. Muromtsev stand out in this regard(Levin-Stankevich, “Cassation, Judicial Interpretation,” 284–85, 294–96). In contemporary scholarship,Pravilova’s focus on the safeguarding of individual rights as the benchmark of legality is also notable (Zakonnost'i prava lichnosti, 8, 20, 135).

33For example, the establishment of special courts or tribunals for cases that fell into certain designatedcategories of “political” crime and “high administrative” violations. See Daly, “Political Crime,” 70, 72, 75–76; and Samuel Kucherov, Courts, Lawyers, and Trials under The Last Three Tsars (New York, 1953), 43–44,48–49.

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some of the essentials of Criminal Cassation’s jurisprudence, and how its view of legalitywas judicially articulated irrespective of the type of case or the particular area of criminallaw that the case touched.

A brief look at the composition of the Court’s membership will allow a fullerappreciation of the legal mentality of the Criminal Cassation court, and legality as thecornerstone of its judicial philosophy. Both courts of cassation, civil and criminal, wereinstitutions (officially known as “Departments”) in the late imperial Russian Senate, andconsequently their members, appointed by the autocrat, bore the title of “Senator.” Owingto the gradual geographical expansion of the new court system across the empire as well asthe increasing caseload brought about by greater demands on the system overall, the CriminalCassation bench in particular went from under a half-dozen members at the outset to overtwenty-five by the 1880s.34

Into the late nineteenth century, as a result of what has been recently characterized asthe “general and legal professionalization of the tsarist civil service,” those on the cassationcourts were linked by their “common training, expertise, and occupational experiences,”and became fully part of the country’s Westernized upper classes.35 Furthermore, owing toa crucial transformation in what can be called the “legal” bureaucracy, beginning in theMinistry of Justice in the 1840s and then extending incrementally into provincial and localadministration throughout the nineteenth century, those in the Cassation departments cameto form an elite stratum in the wider Russian legal community.36 This diverse community,a minority among the intelligentsia but numbering in the tens of thousands, and with a clearpresence in civil society and public opinion through its active engagement in the majorpolitical and social debates of the day, remained broadly committed to the project of bringingjustice, respect for the law, and basic legal literacy to the country.37 These progressivegoals were sought also by more traditional jurists and autocratic officials, principally in theministries and upper civil service of the regime, and by more conservative-minded legalpublicists and commentators.

Generally mirroring trends throughout Russia’s upper judicial administration, thecomposition of the Criminal Cassation Department, as it grew steadily as an institutionover a half-century, was characterized by significant levels of shared social background,religious affiliation, and ethnicity. Over time, its members also diminishingly represented,in the origins of their status and wealth, Russia’s traditional socioeconomic hierarchy. Anincreasing professionalism in outlook and activity (the law as a “career” track) stamped itsmembership, and its intellectual identity drew principally on its deepening legal expertise

34Levin-Stankevich, “Cassation, Judicial Interpretation,” 139; Istoriia Senata 4:28–35.35Assa, “How Arbitrary was Tsarist Administrative Justice?” 15; Wagner, Marriage, Property, and Law, 35.36Richard Wortman, The Development of a Russian Legal Consciousness (Chicago, 1976), 52–88.37The precise figure is difficult to ascertain, and for broader context, may be set against an estimate of

upwards of three hundred thousand civil servants of all ranks throughout the Russian Empire by the turn of thetwentieth century. See the various numerical data provided in Lieven, Russia’s Rulers under the Old Regime,122, 337 (n.5 to chap. 4); Don Karl Rowney and Walter M. Pintner, “Officialdom and Bureaucratization: AnIntroduction,” in Russian Officialdom, ed. Walter M. Pintner and Don Karl Rowney (Chapel Hill, 1980), 5; V.R. Leikina-Svirskaia, Intelligentsiia v Rossii vo vtoroi polovine XIX veka (Moscow, 1971), 58–59, 84–86; V.R. Leikina-Svirskaia, Russkaia intelligentsia v 1900–1917 godakh (Moscow, 1981), 24–25; and Wagner,Marriage, Property, and Law, 47–52.


borne of Europeanized higher legal education.38 In its relationship with the tsarist regimeand basic institutional separation from autocratic power, Criminal Cassation displayed anincreasingly mature, “autonomous” legal ethos.39 Similar to myriad other small social groups,subcommunities, associations, and professional bodies that flourished during the reformera, the Criminal Cassation Department was a microcosm of legal culture shaped by theWest, and functioning within boundaries set and controlled by a reluctantly and cautiouslymodernizing autocracy.

The appeals that reached the Criminal Cassation Department could concern cases thatWestern-style criminal appellate courts faced everywhere faced at that time—theft, murder,egregious health-code violations, and, under certain circumstances, acts deemed threateningor injurious to political and social order. In the cases explored in detail here, from the mid-1860s to the accession of Nicholas II in 1894, ranging from disputes over land and property,to restrictions on commerce, to assault and battery against a local official, the CriminalCassation court pursued its commitment to statutory legality in various ways. This studywill focus on the still-evolving distinction between matters considered “civil” and “criminal”in the application of codified law and procedure, and the Court’s effort to clarify thisdistinction in statute as appropriate opportunities arose. Two dimensions of the 1864 reformaffected the Court’s work in this respect: First, how the new civil and criminal courtsfunctioned; and, second, the nature of the Court’s judicial role in the new court system.

In the popular legal discourse of the contemporary West, the frequent use of “civil”and “criminal” in terms such as “civil suits” or “criminal prosecution” has implanted adefinite if not precise sense of the distinction between these two categories of law. Thisuncertainty has a firm historical foundation. The separation of civil from criminal law isperhaps at its clearest in the adjudication of inflicted emotional trauma, as opposed toinflicted physical violence, against an individual. Yet this separation, in institutional andconceptual terms, has not always been absolute, and has remained contingent on political,social, economic, and even religious development, stretching as far back as Roman, medieval,and canon law.40 Criminal law itself, having originated in Western systems of public oradministrative law, was in fact an outgrowth of existing types of law.41

In the broadest terms, civil law ordinarily applies to nonviolent “private” matters,such as marriage, family life, property and inheritance, and disputes between individuals orgroups, often over financial grievances. The concept of “crime,” on the other hand, refersto a violation of “public” interests that the state is responsible for safeguarding. Acts ofdirect physical violence against other persons are the most evident type of crime, but awide range of other illegal acts, from driving while intoxicated, to fraud, to prostitution,can be classified and treated as criminal. Given that historically, and well beyond Westerncultures, any transgression against a community’s or society’s “rules” could have been

38Wortman, Legal Consciousness, 54–88, 198–234; Wagner, Marriage, Property, and Law, 14 –22, 28–29,35; Assa, “How Arbitrary was Tsarist Administrative Justice?” 15–17; Levin-Stankevich, “Cassation, JudicialInterpretation,” 60–61, 63–64.

39Levin-Stankevich, “Cassation, Judicial Interpretation,” 189–93, 196, 319, 324.40Merryman, Civil Law Tradition, 111, 123; Harold J. Berman, Law and Revolution (Cambridge, MA,

1983), 23–37, 85–86, 181–91.41Merryman, Civil Law Tradition, 98.

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regarded as harmful to both the individual and the collective, an exacting and philosophicallyclear definition of what constitutes “civil” versus “criminal” in Western terms can be elusive.42

By the early nineteenth century, the European experience in developing distinct systemsof civil and criminal law was deeper than Russia’s, yet even throughout the continent and inBritain, the civil-criminal dichotomy was still being elaborated well after the Napoleonicera.43 In Russia, alongside strong traditions in customary law, a basic if rough divisionbetween civil and criminal law had emerged by the mid-nineteenth century. A wealth ofcivil and criminal statutes had been in use for centuries, and an updated criminal and penalcode had been issued in 1845.44 In institutional terms, despite a considerable degree ofoverlap between judicial and police or executive functions, the absence of a formal systemof courts, and the processing of the vast majority of cases beyond the village level by thestate, both civil and criminal courts did exist.45 The profusion of minor civil courts produceda muddled complexity, however, and the state and its officers possessed the prerogative inalmost all adjudication.46 Unsurprisingly, then, the emergence of rigorous, identifiableboundaries between Russian civil and criminal law under the 1864 system remained a workin progress even at the turn of the twentieth century.

The foundation of the 1864 judicial reform was a new system of trial and appellatecourts; this unprecedented judicial hierarchy formally initiated the rise of modern Russiancivil and criminal law systems. In order to streamline the court hierarchy and elevate anindividual plaintiff’s rights and status before any given tribunal, the reform establishedseparate tracks of civil and criminal adjudication; in statutory terms, the 1864 legislationstrove to keep civil litigation and criminal prosecution separate.47 Only in the lowest, mostlocal judicial instances in the new system, such as the Justice of the Peace (mirovoi sud'ia)and Justice of the Peace Assembly (mirovoi s''ezd) courts, would the same judge or tribunal,or, more generally speaking, the same judicial “session,” hear both civil and criminal cases.48

The unitary nature of the mirovoi courts was reflected as well in the addition of the Statuteof Punishments Imposed by Justices of the Peace to the 1864 reform legislation.49 Althoughthe J. P. Statute would formally obtain at the mirovoi level as written law, peasant customarylaw could also be used at the court’s discretion.50

42Glenn, Legal Traditions, 58–67, 80; Merryman, Civil Law Tradition, 11, 90–93.43Merryman, Civil Law Tradition, 14–33; J. M. Kelly, A Short History of Western Legal Theory (Oxford,

1992), 294–98; Robert W. Shaffern, Law and Justice from Antiquity to Enlightenment (Lanham, 2009),208–9.

44The Ulozhenie o nakazaniiakh ugolovnykh i ispravitel'nykh (Code of Criminal and Corrective Punishments),hereafter referred to as “1845 Code of Punishments” or “Penal Code.”

45Kucherov, Courts, Lawyers, and Trials, 1–2.46Wagner, Marriage, Property, and Law, 37–38; Za piat'desiat let 2:501.47Articles 6–7, 27–29, Sudebnye ustavy 1864, the “Ustav ugolovnago proizvodstva” (“Statute of Criminal

Procedure”).48A tribunal created by the 1864 reform, to which rulings by the Justice of the Peace (mirovoi sud'ia) could

be appealed (hereafter “J. P. Assembly”); the next appellate level above the J. P. Assembly was cassation.49The Ustav o nakazaniiakh, nalagaemykh mirovymi sud'iami was one section of the Sudebnye ustavy 1864.

Henceforth it will be referred to as the “J. P. Statute.”50B. V. Vilenskii, Sudebnaia reforma i kontrreforma v Rossii (Saratov, 1969), 164, 168, 172–173; Kucherov,

Courts, Lawyers, and Trials, 35, 43, 49. The volost' or township courts created with the serf emancipation in1861 functioned below the new justice of the peace courts and even more locally in the countryside, but werenot a formal component of the 1864 court structure.


A civil case could proceed only if an individual or the affected party brought formalsuit, and the penalties upon conviction consisted of monetary fines to be paid as restitution.51

In contrast, criminal charges could be filed either by a private party or the state at themirovoi level or below, and only by the state in higher judicial instances. The criminalcourt would then initiate the judicial phase of the case by confirming the accusation againstarticles of the relevant penal code, and registering the case before the formal hearing.52 Inthe event of a conviction, the corresponding penalty or fine stipulated by statute, generallyallowing for varying lengths of arrest or imprisonment or different levels of monetary sanctionup to a prescribed maximum, would be imposed at the court’s discretion.53 If the convictionwas appealed, the higher court would consider first and foremost the purely “factual” meritsof the finding of guilt, or whether the evidence had justified the judicial outcome.Additionally, and of particular significance for the work of Criminal Cassation, the lastformal court of appeal, any lower appellate court could also consider the case’s strictlyprocedural, technical, or “legal” aspects, such as whether the original or previous court hadacted correctly in treating the case as a criminal matter.

The formal delineation of the bodies of civil and criminal law and procedure hencefell to the Russian judiciary collectively, whose sole function, as in any Western-style systemof law, was legal interpretation. The judge in the Western tradition is not to create law orenforce it. Legislative and executive powers are statutorily reserved for other componentsof the state and governing system. Imperial Russia’s autocratic state and lack of nationallegislature notwithstanding, the stipulated responsibility of reform-era Russian judges wasno different. However, because the Civil and Criminal Cassation departments were thefinal level of appeal, the systematic legal division between civil and criminal violationswas ultimately the task of these two courts.54

Historically, the Russian state had been the dominant force in the codification,regulation, and punishment of crime, and had even occupied a significant place alongsidethe Orthodox Church in the handling of civil law grievances.55 Tsarist authorities and localpolice, assisted by a judiciary beholden to the state, were thus habituated, before 1864, toplaying an exclusive role in the legal processing of the vast majority of civil and criminalcases. The main elements of the 1864 criminal justice system—the use of trial by jury, thecreation of a formal legal profession (advokatura) that supplied independent defenseattorneys, an adapted criminal code (the J. P. Statute) for misdemeanors and minor offenses(prostupki)—exceeded those of its civil law counterpart in their novelty, and imposed newstatutory boundaries on the autocracy’s executive and judicial powers. In addition, asmentioned above, the state’s initiative in bringing cases to court was much more rigorouslyrestricted in statute, and effectively limited to criminal prosecutions. The establishment ofan independent judiciary further curtailed the state’s authority in court. Consequently, the

51Article 4, Sudebnye ustavy 1864, the “Ustav grazhdanskago proizvodstva” (“Statute of Civil Procedure”);Chapter 1, Point 1 of the J. P. Statute. See also Vilenskii, Sudebnaia reforma 2:166, 168.

52Articles 3–5, Statute of Criminal Procedure. See also Chapter I, Point 1 of the J. P. Statute.53Vilenskii, Sudebnaia reforma, 166, 168.54Article 5, Sudebnye ustavy 1864, “Uchrezhdenie sudebnykh ustanovlenii” (“The Establishment of Judicial

Institutions”); Za piat'desiat let 2:459–61.55Kaiser, Growth of Law, 15–17; Wagner, Marriage, Property, and Law, 37–38; Istoriia Senata 4:1–2.

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potential commingling by prosecuting authorities of statutorily distinct civil and criminalviolations was an issue for the criminal law judiciary.56 The interpretive, purely juristictask of demarcating “civil” from “criminal” therefore inevitably confronted the CriminalCassation court, and acquired practical urgency from 1866 onward, when the new 1864judicial order actually began to function and separate tribunals were inaugurated for a largerange of civil and criminal matters.

The statutory charge and judicial role of Criminal Cassation in the 1864 system,therefore, warrant more thorough explanation. As noted earlier, the very notion of crimelegitimizes, and indeed necessitates, the exercise of the state’s power in behalf of publicsecurity. Russia’s nineteenth-century criminal and penal codes, contained in the 1649Ulozhenie, the 1832 Svod zakonov, and separately in the 1845 code and then as a specialsupplemental code for justices of the peace in the 1864 statutes, were perhaps not asdeveloped and systematic as comparable European statutory law, but they were betterorganized and more detailed in many respects than Russian statutory civil law, containedessentially in the 1832 Svod, with a few appendices and supplements publishedsubsequently.57

According to the judicial norms and procedural standards of the 1864 statutes, withrespect to the use of codified law (zakony) in trials, all tribunals, judges, and court membersbelow the level of cassation were enjoined to decide cases with careful attention to the“essence” of the matter before them (rassmatrivat' delo po sushchestvu), and with everyeffort to be faithful to the “exact sense of existing statutory law” (po tochnomy smyslusushchestvuiushchikh zakonov).58 In hearing appeals, every court below cassation was toevaluate cases according to the evidentiary materials as well as procedural issues or legaltechnicalities. By contrast, in standard judicial practice, and specifically the nineteenth-century French court system that served as a model for the 1864 reform judiciary, the taskof cassation focuses on “questions of law” rather than “questions of fact.”59 A court ofcassation should not dispute evidence or other objective aspects of the case alreadyestablished by the lower court. In their generic judicial function of legal interpretation,therefore, imperial Russia’s cassation courts were even more circumscribed than lowercourts and judges. Their responsibility was to explain and apply existing law, but not toread statute in an original fashion and thereby possibly “make” new law.60 With regard tothe new justice system as a whole, the larger mission of the Senate’s cassation departmentswas to preserve, in their capacity as purely judicial bodies, the “exact force” (tochnaiasila) of existing laws and to ensure their uniform fulfillment throughout the judicial

56Za piat'desiat let 2:461.57Ibid., 56–57.58Article 5, Sudebnye ustavy 1864; Article 12, 1864 Statute of Criminal Procedure.59Levin-Stankevich, “Cassation, Judicial Interpretation,” 116–20.60The 1864 procedural statutes required the publication of cassation decisions for the benefit of the lower

courts, but at no point indicated that these decisions should have the force of law, much less binding authorityover the future rulings of other judges and tribunals (Articles 110 and 933, Statute of Criminal Procedure;Article 815, Statute of Civil Procedure). Indeed, judicial rulings and decisions had been disqualified fromconsideration as actual law in Article 69 of the 1832 Fundamental Laws. See also Levin-Stankevich, “Cassation,Judicial Interpretation,” 248; and Kucherov, Courts, Lawyers, and Trials, 47–48. Regarding the potentially“law-making” capacity of the lower courts see Za piat'desiat let 2:303, 379–81.


institutions of imperial Russia.61 But how to carry out this responsibility merely as a courtof appeal, albeit the highest one in the system? Beyond simply explaining its legal reasoningfor upholding or rejecting appeals, the Criminal Cassation court took great pains to detailthe specific laws and statutory articles it used in reaching its decisions, and to assert theauthority of zakon through a careful reading of the legal “text” as the sole determinant in itsjudicial thinking.

At first glance, the argument that the Court’s zakonnost' meant as direct and unadornedan approach to statute as possible may seem unremarkable and even expected given thepreviously outlined procedural obligations and autonomous judicial role of the CriminalCassation Department under the 1864 statutes.62 Yet being charged with statutoryinterpretation, or resolving points of law, does not therefore make a court’s actionsstraightforward and predictable, especially if it is the highest court in the judicial systemand the final level of appeal. With respect to the issue of a case’s criminal or civilclassification, even though the 1864 procedures for cassation review granted the Court noexplicit authority to reclassify a case and thence remand it to be adjudicated anew throughthe appropriate courts, Criminal Cassation clearly believed that such reclassification fellwithin its purview, and did not hesitate to inquire into the actual statutory “criminality” ofthe alleged violations, regardless of the grounds for appeal.63

Despite a considerable amount of statutory criminal law to which it was to adhere inits work, such as the 1845 penal code, the 1864 penal statute for the new justice of thepeace courts, and eventually parts of the new 1903 criminal code, the members of CriminalCassation always had choices to make, and exercised a significant measure of discretion, ininterpreting and applying statute. Furthermore, given the sheer novelty and lack of traditionor standard practice in the Criminal Cassation court’s work as the reform era proceeded,the court’s members were able to define their institution’s identity, establish its purpose andauthority, and thereby contribute to the evolving culture of law in late imperial Russia.64

The 1874 cassation decision in the Belozerskii case is a useful starting point forexploring the Court’s approach to distinguishing civil from criminal cases, especially sincethe ruling took into account both pre-1864 statutory law and a related earlier case settled bythe Court in 1869. The main issue in Belozerskii was the clarification and refinement ofcriteria for establishing statutory criminality, and Criminal Cassation’s decision, publishedless than a decade after the new courts began to function, is noteworthy first because itdisplayed the Court’s evolving sense of what constitutes criminality. In addition, its layeredopinion demonstrated both the Court’s willingness to develop its analytical principles andbases of judgment as well its desire, as the highest criminal appeals court, to show judicialrestraint in resolving difficult points of law as the new reform judiciary matured. The

61Article 5, Sudebnye ustavy 1864. See also Levin-Stankevich, “Cassation, Judicial Interpretation,” 98–100, 210–15.

62Articles 12 and 13, 1864 Statute of Criminal Procedure; for civil cassation, the comparable articles were 9and 10 of the 1864 Statute of Civil Procedure. See Levin-Stankevich, “Cassation, Judicial Interpretation,”55–60, 70, 91–92, 98–100, 102, 198, 210–15; and Assa, “How Arbitrary was Tsarist Administrative Justice?”41–42.

63Wagner, Marriage, Property, and Law, 41 n.45; Vilenskii, Sudebnaia reforma, 173.64Levin-Stankevich, “Cassation, Judicial Interpretation,” 281–82.

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dispute centered on allegedly illicit cattle-grazing by local peasants on the Belozerskiicountry estate; the peasants claimed that the estate woodskeeper had given them permissionto put their animals out to pasture on the Belozerskii grounds. At the appellate level ofthe J. P. Assembly, the entire judicial proceeding had been called to a halt by the s''ezd,which cited an 1869 Criminal Cassation decision that had deemed a comparable incident as“not possessing a criminal character,” and therefore falling under the jurisdiction of thecivil courts.65

The Court, ruling carefully and providing the basis for a future reconsideration of thestatutory differences between civil and criminal violations, acknowledged both the validityof its own 1869 precedent, which was based on pre-1864 reform regulations concerningthe use of others’ fields and meadows, and the possibility nevertheless of classifying thecurrent alleged act as “criminal,” and thus subject to criminal prosecution.66 In particular,the Court’s decision stated that illicit cattle-grazing, while not extremely serious, was stilla petty offense or misdemeanor (prostupok) according to the 1864 J. P. Statute, and henceof a criminal nature. Accordingly, Criminal Cassation set aside the J. P. Assembly’s rulingand sent the case back to a new assembly for review as a criminal violation.

In keeping with its role as an instance of cassation, the Court restricted itself to pointsof law, and specifically whether the violation in question merited civil adjudication, as theJ. P. Assembly had concluded.67 The Court’s decision, however, did not provide full legalclarity. The opinion effectively stood by its own previous ruling that the essentially minornature of the alleged offense made it a matter for the civil courts. Yet the Court also ultimatelytransferred the case to the criminal courts for a new resolution. Criminal Cassation thusacted in a manner that could have been read as an affirmation of both the civil and criminalfeatures of the case. Nevertheless, the Court’s apparent judicial ambiguity, its seemingindecisiveness, contained an emphatic direction to the lower courts. Criminal Cassationhad in mind an eventual shift in Russian law’s treatment of this category of behavior, awayfrom “civil” status.68 At this point, beyond the required second review of the peasants’cattle-grazing, lower courts and judges were being instructed henceforth to think morecarefully about classifying this type of violation under recent statute.69

65Criminal Cassation Decision (CCD) #477, September 31, 1874, 648, in Reshenii UgolovnagoKassatsionnago Departmenta Pravitel'stvuiushchago Senata (Harvard Law Library Collections, microfilm).

66See also CCD #311, March 8, 1873, in which a J. P. Assembly’s guilty verdict against a soldier was setaside for lack of adequate statutory signs of a crime. The case related to financial dealings such as alleged non-payment of debt, possible embezzlement of funds, and accusations of unethical behavior by legal representatives,and points up the Court’s ongoing efforts to define a given act as necessarily criminal or civil in narrow legalterms.

67As Levin-Stankevich notes, such procedural decorum was the norm for the cassation courts, but he alsoacknowledges that the complexity of appellate decision-making did indeed occasionally draw them into issuesof fact (“Cassation, Judicial Interpretation,” 120–21).

68An early example of how the Court would continue to grapple with what constitutes “criminal” can beseen in its 1868 ruling on an otherwise unremarkable appeal involving Grigorii Efimov, a meshchanin originallyconvicted of both theft and burglary. The Court’s decision focused squarely on how well existing statutesdefined criminal behavior, and in upholding the guilty verdict against Efimov, the Court concluded that theterms prestuplenie (crime or felony), prostupok (minor crime or misdemeanor) and protivozakonnoe deiianie(illicit act) were conceptually interchangeable according to current penal statute, and thus collectively compriseda wide range of criminal behavior (CCD #10, January 10, 1868, 12).

69CCD #477, September 31, 1874, 648.


A different aspect of the civil-criminal tension can be seen in cassation appeals arisingfrom the autocratic regime’s efforts at local governance through laws that attempted todefine the status of various minority groups and nationalities. In a complex and, in certainrespects, contradictory, decision in late 1888, the May 3, 1882, law regarding the“commercial” capacities and rights of Jews in the countryside or nonurban areas was atissue. The May 1882 statute, both directly economic and broadly political in its objectives,sought to protect the Russian peasantry against exploitation by Jews. Leida Zaidener, atrader and Jewish resident of the Anan'evskii district, found himself in court for not complyingwith the local police’s requests that he abide by the 1882 law’s prohibition against writtencommercial contracts.

Local authorities had filed the original allegations against Zaidener upon his refusal toannul the contracts; they claimed that he had entered into the kind of leasing and land-useagreements prohibited by the statute. Crucially, because Zaidener had defied the policeand therefore official state authority, the charges against him had been adjudicated as acriminal matter. Yet it was clear that the deals (sdelki) struck with Zaidener had beentransacted orally. As a result, both the justice of the peace and the subsequent J. P. Assembly,on the legal basis of the contract-related provisions of the 1882 statute, ruled favorably onthe lawfulness of the transactions. Placing a final judicial stamp of approval on Zaidener’scommercial activities, the Criminal Cassation court ultimately upheld these lower rulingsand declared the contracts legal under statute, but did so in a rich, suggestive decision thatwas supportive of the J. P. Assembly’s strict reading of the law yet at variance with theassembly’s basic reasoning regarding the legal status of Zaidener’s actions.

The orality of the contracts had made them legal according to every level of reviewthus far, but Criminal Cassation went further and drew attention to what it regarded as amuch larger and fundamental issue in evaluating the import of the case for future resolutionof contract disputes related to the 1882 law: Was Zaidener’s legal responsibility(otvetstvennost') for having entered into the prohibited agreements in fact of a “criminal”(ugolovnyi) nature, as the judicial process thus far had regarded it? Should the state and itsrepresentatives be legally empowered to pursue such a matter through the courts? The J. P.Assembly, upon appeal of the justice of the peace’s ruling, had explicitly referenced the1882 statute in its own deliberations.70 While approving of the assembly’s close attentionto statutory detail, Criminal Cassation argued as well that the assembly had affirmed theland agreements according to the “internal sense of the law” (vnutrennyi smysl zakona) oraccording to what the assembly regarded as the state’s prerogative to regulate such contractualrelations by legal means. While the Court’s members believed the assembly’s ruling to befully in line with the “exact (tochnyi) sense” of the May 1882 law, they took exception towhat they interpreted as the assembly’s additional resort to the deeper intent or meaning ofthe statute, and specifically with regard to the acceptable legal reach of political authority.

Criminal Cassation had in mind the difference between the civil and criminal spheresof the law, and the necessary consequences of that difference. In the Court’s view, theassembly’s decision, although technically correct according to statute, represented aninappropriate judicial pretention to an area of human and governmental activity as yet

70CCD #28, September 27, 1888, 72.

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improperly defined by statute. The Cassation members ruled that Zaidener’s noncompliancewith police demands to rescind the agreements did not qualify as even a misdemeanor(prostupok), and classified his alleged offense as “civil.” Since there could not be “criminal”accountability in the absence of a criminal law violation, the final legal resolution of thematter was in the hands neither of the police or local government (through the criminalcourts), nor more broadly under purview of the state.71 That task, in the eyes of the Court,lay with the civil judiciary.

The Court’s opinion then shifted to more philosophically inclined commentary on theconnections between society, political power, and legal authority. First, the Court expressedits agreement with the imperial legal system’s conviction that “civil existence” (grazhdanskiibyt') or private life necessarily impinged on “questions of the political structure of thestate.” As a consequence, the opinion continued, even though the enforcement of civil lawmandates did not automatically and without exception pass to state executive authorities orentail criminal sanctions, “political considerations cannot but influence civil statutes.”72

Thus, it was appropriate for the lives of individuals in civil society to be subordinate, to asubstantial degree, to the governing imperatives of the autocracy.

With respect to Zaidener, however, Criminal Cassation believed that rather thanaffirming the right of the state or the local police or administering office to act unilaterallyto enforce the 1882 law, the proper approach within the law was to defer to the law-makingbody (zakonodatel'), whose task it would be either to establish the appropriate state oversightin such matters or create the necessary safeguards to protect Russian citizens.73 At thatpoint a case such as Zaidener’s could properly proceed through the civil law courts. TheCourt noted that within the definition and types of civil violations already in Russian law,there were specific standards regarding “personal legal capacity as a result of thecircumstances of religion, status, or rank” that should be applied and enforced.74 Therefore,the Court determined, deals such as those concluded by Zaidener could (and should) becanceled only by means of civil procedures employed by civil law courts.75

Although both the Belozerskii and Zaidener decisions focused on the substantive andprocedural distinctions between civil and criminal violations, they differed in the scope ofthe Court’s arguments and commentary on the function of statutory law. In Belozerskii, theCourt rejected the lower court’s ruling while in effect announcing a future reformulation ofits own position on the statutory criminality of a particular act. Ultimately, the main importof the Belozerskii case was judicial. In Zaidener, however, the implications of the Court’streatment of statute transcended the judicial realm.

In many respects, the Zaidener decision employed legal reasoning and analysis thatappeared to be at cross purposes. Initially, the Court’s emphatic denial of the state’s objection

71Ibid., 73.72Ibid.73Occasionally, though, the Court would take on points of law with an eye towards “supplementing” existing

statutes (Za piat'desiat let 2:476–77).74Ibid., 73.75In a decision rendered the previous year and also concerning the May law and the conduct of commerce by

Jews outside the prescribed boundary, the Court, while emphasizing the sanctions imposed on the plaintiff,reserve officer Mark Zhivotinskii, in its disagreement with treating the case as a purely criminal matter, leanedsimilarly toward civil adjudication to resolve it (CCD #14, May 12, 1887, 30).


to Zaidener’s land deals on the grounds that the May statute must be read in a technical,precise sense, as not necessarily excluding oral agreements, was typical of the zakonnost' itupheld in principle. Current statute, therefore, must be honored. At the same time, however,the Court found existing law to be insufficient and not reflective of the true legal nature ofthe offense, and explicitly declared Zaidener’s refusal to obey the police a “civil” violation;such legal reclassification would limit the autocracy’s traditionally routine, direct ability toenforce laws such as the May statute through judicial channels.76 Nevertheless, inconcurrence with the J. P. Assembly, the Court intended to provide judicial support for theautocracy’s larger political, economic, and social objectives in the May 1882 statute. Thetsarist state’s legitimate political interests and executive capacity in regulating the civilianlives of its subjects could still be maintained, the Court contended, with a necessary, betterbalanced, and legislative solution: a new statute that would place such cases under civiljurisdiction and in the civil courts. As a judicial body, then, Criminal Cassation pronouncedin favor of its own vision of legality through statute, while affirming the autocracy’s authorityto safeguard its citizenry through statute.

Five years later, in two decisions also focusing on civil versus criminal liability andjurisdiction, the Court affirmed its intention of establishing clear legal distinctions andelaborated its evolving position in important ways. In both these cases, Article 29 of the1864 J. P. Statute was at issue, so quoting it in full is necessary in order to understand betterthe Court’s thinking. Included in the section of the statute devoted to “offenses againstgovernmental order,” Article 29, meant to encompass a vast range of relations betweenindividuals and authorities, stipulated:

For nonfulfillment of the regulations, requirements, or resolutions of state andpolice authorities, and of rural and social (obshchestvennyi) institutions, when apenalty for said offenses is not set by this Statute, the guilty party shall be subjectto a monetary fine of not more than fifteen rubles.77

In a cassation appeal brought against landowner Pavel Ivanovich Schmidt, decided in1893, the sheer persistence of one Pogrebnyi, a kommissar for peasant affairs in the Pribalticregion of Livland, was the decisive factor in leading the Court to consider the issue of civilversus criminal jurisdiction.78 Kommissars were fairly powerful lower-level administratorsthroughout the Pribaltic provinces and handled a variety of peasant matters just beyond thejurisdiction of local township (volost') courts.79 Pogrebnyi’s appeal made reference to an1860 regulation that had freed Livland peasants from serfdom while keeping landlords inpossession of their estates. As kommissar, Pogrebnyi had instructed Schmidt, owner of theBorrishof estate, to conclude a new land-lease contract, in writing, with the free peasantPetr Berzin. The original agreement had been oral, and the 1860 regulation clearly stipulated

76The Court’s decision in the case of Polikarn Vaiskii, a Don Cossack whose salary and property had beentargeted by customs officials in pursuit of duties and financial compensation, was based on the same reasoning,and indeed cited the Zaidener case as precedent (CCD #10, February 13, 1890).

77Article 29, J. P. Statute.78Only his last name appears in the decision.79The official term dated from the early 1880s. See sub verbo “Krest'ianskie uchrezhdeniia,” in

Entsiklopedicheskii slovar' 32:730.

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that such contracts were valid only if they were written. Schmidt agreed to redo the contract,and in fact signed Pogrebnyi’s instructions to that effect, but then failed to carry through.

Pogrebnyi brought his case to the justice of the peace in the Valksii district, and soughtlegal confirmation of his authority as kommissar to compel Schmidt’s compliance. Thedispute made its way to Criminal Cassation because the justice of the peace’s ruling, whichrejected Pogrebnyi’s claim, was affirmed by the J. P. Assembly upon appeal. The ruling ofthe mirovoi sud'ia concluded that Schmidt’s inaction carried only “civil consequences,”and thus placed the resolution of Pogrebnyi’s claim in the civil courts.80 Transferringjurisdiction in this way would effectively nullify the kommissar’s authority in the dispute.81

Based on Article 29 of the J. P. Statute, Pogrebnyi argued to Criminal Cassation that theassembly, in upholding the justice of the peace, had overstepped its “judicial authority”(sudebnaia vlast') and gone beyond the “exact sense of the law” in restricting his officialcapacities as kommissar.82

Directly addressing Pogrebnyi’s arguments regarding Article 29 and proper landmanagement under the 1860 Livland peasant regulation, the Court rejected his principalclaim of authority by engaging in its own interpretation of the exact content of statute. Inpartial concurrence with Pogrebnyi, the members first cited articles of the 1860 regulationthat in fact supported his assertion that contracts between landowner and free peasant werevalid only if they were in writing. Yet the regulation, the Court pointed out, did not assign“criminal” responsibility (otvetstvennost') for noncompliance with the written requirement,and accordingly did not empower any local administrators, such as the kommissar for peasantaffairs, to demand that a landowner replace an invalid contract.83 Therefore, the Courtconcluded, Article 29, part of the criminal code, had no application in this instance.Furthermore, the Court’s decision emphasized, the original leasing agreement betweenSchmidt and Berzin was indeed a statutory violation, but, other than a minor fine imposedby a civil court, in the absence of a clear, specific statutory remedy by means of the criminalstatutes, Pogrebnyi’s cassation appeal could not be justified.84

In addition to the priority it gave to a thirty-year old, pre-reform era statute as thebasis of its decision, and in a region outside Russia proper, the Court also ranged widelyover a series of topics, both practical and theoretical, that lay at the heart of Russia’s effortsto refashion and renew its administration of justice and, by implication, its basic governance.The most important of these topics, raised initially by the J. P. Assembly, were the justificationfor the state’s active, purposeful use of statutory law to effect policy, how far that kind ofinstrumentalist approach to law should go, and how to reach agreement on the sense (smysl)of individual statutes and their application.85

After citing the Zaidener and Vaiskii cases as precedent, the Court’s opinion thenbegan to address Pogrebnyi’s major arguments first by delving into the problem of how to

80CCD #6, February 16, 1893, 13.81As in the Court’s earlier Zaidener (1888) and Vaiskii (1890) decisions, defining the matter as “civil”

meant that Schmidt was not answerable to Pogrebnyi’s office for his failure to satisfy his legal obligation.82CCD #6, 14.83Ibid., 14–15.84Ibid., 15.85Ibid., 13–14.


classify and treat unacceptable “civil”-category behaviors.86 The Court noted that statutein general (zakon) either prohibited or required, and thus gave legal definition to, a vastgamut of these behaviors. Accountability for these actions lay outside the criminal courts,and those who committed these civil violations, “private” (chastnyi) persons in legal terms,were consequently subject to the duly empowered institutions and personnel of Russia’scivil courts.87 Broadly linking the civil-criminal separation to necessary refinements incodified law, the Court suggested that making people “criminally” responsible for a greaterrange of their behavior could be achieved, but only by defining a given act (deianie) as aviolation of specific articles of both the 1864 Statute of Criminal Procedure and the 1845Penal Code.88 Short of such changes in the codes, the Court explained, administrators andofficials must be constrained by existing laws, and those same laws must guide thedeterminations of the judicial system:

The demands of police or administrative authority may be regarded as lawful(zakonnyi) and impose accountability for their non-fulfillment only when theyare based on formal statute (polozhitel'nyi zakon), or on the general sense of thestatutes (obshchii smysl zakonov), defining the domain of this authority; in thepresent case, there is nothing in the statutes that indicates the right or obligationof administrative authority to maintain supervision over the conclusion of a private(grazhdanskii) land-leasing agreement.89

Two aspects of the opinion’s emphatic rejection of Pogrebnyi’s legal reasoning stand out.First, the Court invokes “positive” (polozhitel'nyi) law, or statutes and codes produced bythe state, as possessing greater authority than individual representatives of the state claimingjustification for action. Second, in reference to the consensus on the meaning (obshchiismysl) of a particular example of positive law, the Court emphasizes discrete statutes, theplural “laws” (zakonov), as opposed to law (pravo) overall.

Subsequently, directly likening the behavior of the judiciary to the actions of the imperialadministration, the opinion continued:

Neither may judicial authority at its own discretion broaden or tighten the scopeof lawful measures whose non-fulfillment subjects the guilty to punishment, andfor which the justification is based on considerations other than the exact sense ofthe law in question; further, if the verdict issued by said [judicial] authoritystipulates a punitive measure not established by law, the court exceeds the boundsof its authority.90

Seeking to place limits on the discretionary power enjoyed by both the autocratic state andthe judiciary, the Court insisted on a precise application of civil statute as the best curb tosuch authority.

The Criminal Cassation decision in the 1894 case of Fyodor Steinberg, a peasant fromthe Pribaltic region, not only recapitulated and confirmed the judicial interpretations

86See footnotes 72 and 77, above.87CCD #6, 14.88Ibid., 14-15.89Ibid., 13. See also the legal analysis regarding Article 29 in Za piat'desiat let 2:477.90CCD #6.

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examined so far but also extended and deepened the Court’s view of the civil-criminalsplit, and its insistence on maintaining this division statutorily, in strictly legal rather thanmerely practical terms, even in the face of shortcomings and uncertainty in Russia’s legalcodes. After the death of his wife, Steinberg was accused of criminal violations underArticle 29 of the J. P. Statute for refusing a delegation from the Bikshinskii township courtin its request for a signed affirmation from him regarding his wife’s property. The delegation,already in lawful control of the property based on a statute of July 9, 1889, governing civilcase procedure in the township courts of the Pribaltic region, wanted Steinberg’s signatureto affirm, first, that he was not withholding any other portion of his wife’s property fromthem, and, second, that neither was he keeping a receipt or invoice for this additional propertyto himself.91

The matter went before the justice of the peace, and Steinberg’s refusal of the delegationwas found unacceptable under Article 29; the J. P. Assembly upheld this decision on appeal,and Steinberg was fined sixteen rubles. He then filed a cassation appeal, claiming animproper application of Article 29, and a violation of the 1864 criminal procedure statute,which would render both his original detention by the delegation as well as the demands forhis signature and the property invoice illegal, because they contravened local regulationsand ordinances regarding such situations.92

The Steinberg case had been treated as a criminal matter until it arrived at CriminalCassation, but because it involved contention over Steinberg’s contractual obligations, thesorting out of civil versus criminal liability remained an important subtext throughout.Ruling in favor of Steinberg, the Court ultimately determined, as it had in Zaidener, Schmidt,and Vaiskii, that civil accountability was enforceable rather than criminal, and that theaforementioned Article 29, frequently invoked and wide in its application, had its limits.93

Developing its opinion along two related tracks, the Court noted first the superiority of the“majority of the new European procedural legislation” in the power it gave various Europeancountries’ judicial institutions in holding citizens responsible for the fulfillment of essentialcivic duties, and the comparative weakness in the “discretionary authority” of Russia’sjudicial organs in such situations.94 By thus acknowledging the persistent inadequacy ofRussian civil law and its civil courts under the judicial reform, Criminal Cassation wasimplicitly granting the point that the power of criminal liability in circumstances such asthis might indeed be a surer path to justice, especially given the interpretive latitude inArticle 29. Yet the Court’s priority remained the proper and precise use of statute, and itssecond major line of argument concerned the particulars of the Steinberg case, the issue ofseparating the civil from the criminal sphere under Russia’s new 1864 system, and thestatutory civil law gaps revealed in the case.

The J. P. Assembly’s justification for upholding the original verdict lay in its agreementwith the justice of the peace that had the delegation not threatened Steinberg with criminal

91CCD #13, March 29, 1894, 39.92Ibid.93All were cited as precedent in this decision. The Court had in mind more than the previously noted

maximum of a fifteen ruble fine stipulated in Article 29, and indeed found the “incorrect attribution” of criminalresponsibility a violation of Article 1 of the 1864 J. P. Statute (CCD #13, 40).

94Ibid.


sanctions to obtain his signature, he would not have had a reason to surrender any remainingproperty or the invoice, thus harming the legitimate interests of his wife’s relatives. CriminalCassation did not dispute the assembly’s logic and acknowledged the justice of the relatives’claims to material satisfaction, but once again cast the issue as setting the inadequacyof existing legal remedies against the clearer demands of legality on a higher, moreconceptual level. The Court concluded that under such circumstances, the assembly’sreasoning “nevertheless may not serve as the foundation for determining criminalaccountability not stipulated by law.”95 In denying the applicability of Article 29 in thisinstance, Criminal Cassation, somewhat differently than in Schmidt, focused more on theconceptual, interpretive overstepping of the limits of statute than on the overzealous exerciseof power. Assigning “criminal accountability” (ugolovnaia otvetsvennost') unsupportedby statute was impermissible, and existing boundaries in codified laws and procedures hadto be maintained.96

With respect to the 1864 reform’s goals of greater legal equality or simple equity, itcannot be argued that Criminal Cassation decisions in cases comparable to Schmidt andSteinberg necessarily advanced such lofty principles in a direct or substantive way. Yet thedegree of exactitude commonly demanded by Criminal Cassation in the seemingly mundaneprocess of defining and categorizing the acts of citizens as civil or criminal did haveimplications, short- and long-term, for the purview of “official” authority. The autocracyand its governing, administrative apparatus could not be entirely prevented from takingaction or somehow barred from exercising its will, but the regime’s range of action and itsreach under its own legal system was subject, to a degree, to the efforts of an upper judiciaryseeking to uphold the integrity of codified law.

The zakonnost' exemplified by Criminal Cassation found expression as well in casesinvolving allegedly improper behavior or actions directed against officials (dolzhnostnyelitsa). The final case to be examined here provides a revealing illustration of the interpretivechallenges facing Criminal Cassation with respect to the privileged status conferred onthose in the autocratic service hierarchy. In such disputes, whether in the upper imperialbureaucracy or at the local village, municipal, or community level, the definitional tensionbetween “civil” and “criminal” categories was clearly tested. While the very concept of“crime,” as noted earlier, presupposes a clash between the actions of the individual politicalsubject and the collective interests of the state, a nonviolent action directed against a personin an official capacity is closer in many aspects to a “civil” violation and can thus complicatethe judicial treatment of such a complaint.97 In its appellate role, the Court, while it did notappear to challenge the legal preference accorded to those of higher rank in the vast civilservice hierarchy, nor the autocratic state’s prerogative in legally establishing suchpreferential status, again confronted semantic legal complexities by hewing to as precisean application of statute as possible.

95Ibid., 41.96Ibid.97The theory and practice of administrative or public law, from which formal criminal law initially arose, are

responsible for this overlap and ambiguity with respect to offenses against those under the auspices of stateauthority (see footnote 41 above).

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In the category of nonphysical altercations that resulted in legal action brought by anofficial against an ordinary citizen of lower status, the offenses of oskorblenie (“insult” or“insulting behavior”) and its imperial Russian legal cousin beschestie (“inflicting dishonor”)stood out in particular. Article 31 of the 1864 J. P. Statute addressed such behavior, and itbecame the focus of the Court’s 1872 decision in a cassation appeal brought by FedotVoden', from a merchant family. This case prompted the Court to think through newdimensions of civil versus criminal wrongdoing and may be regarded as emblematic of theCourt’s customarily rigorous treatment of the statutory nuances marking the boundarybetween civil violation and criminal act. At the case’s inception, the Starodubskii J. P.Assembly, adjudicating the matter as criminal, had found Voden' guilty of oskorblenie, bymeans of verbal abuse, against the village starosta Anastas'ev, while Anastas'ev wasinstructing Voden' to tend to his customary responsibilities in commerce.98 By law, Voden'was fined seventy rubles.99

Voden' protested to the Court that criminal statutes did not apply, and the Court ruledagainst him. One issue especially warrants attention. A central contention by Voden' wasthat Anastas'ev had not claimed to be aggrieved in any way at the time of the incident, andindeed, Anastas'ev had requested in the original complaint that Voden'’s violation besentenced simply as an “offense of civil dishonor” (obida grazhdanskovo beschest'ia),which would have disqualified the case from being handled according to criminal procedureunder the J. P. Statute. In considering the question of how Voden'’s behavior towardAnastas'ev should be legally categorized, Criminal Cassation pointed out that criminal lawand procedure took precedence in such instances because if the alleged act was oskorblenieagainst a “private” person (chastnoe litso), then it was fundamentally and, more important,statutorily an example of beschestie, and thus a civil violation.

Article 31 of the J. P. Statute, however, detailed punishments and fines for many typesof oskorblenie against a wide range of officials in police, governmental, and administrativeinstitutions. Furthermore, the J. P. Statute broadly classified all such acts as “trespassesagainst governmental order” (prostupki protiv poriadka upravleniia).100 In this instance,Voden'’s “profane insult” (rugatel'stvaia obida) aimed at Anastas'ev was specifically coveredunder the statute as a “verbal insult” (slovesnaia obida) against a member of the villagegovernment or administration (sel'skoe upravlenie).101 By a strict reading of the law, then,his invective against the starosta qualified as detrimental to the stability of imperialinstitutions. Thus, the Court argued, in the event of oskorblenie committed against anindividual in an official capacity within the larger service hierarchy (dolzhnostnoe litso), itdid not matter that the aggrieved party sought merely “civil” (grazhdanskii) satisfaction, asit appeared Anastas'ev had. Adjudicating the alleged act as a criminal violation, the Courtemphasized, remained the only acceptable legal course.102

98Identified by last name only.99CCD #1125, October 5, 1872, 1205–6.100Chapter II subject heading, 1864 J. P. Statute.101Rugatel'stvaia obida was used synonymously with oskorblenie in the written opinion (CCD #1125, 1206).

See also the first and second clauses of Article 31 of the 1864 J. P. Statute.102Article 31, Second Clause, 1864 J. P. Statute.


In a minor dispute that involved a defendant who contested superior administrativeauthority, yet which carried no explicit political significance or overtones, Criminal Cassationnevertheless determined that this nonviolent, quite ordinary episode of verbal ill-will byVoden' merited “criminal” designation according to statute, even against the entirely sinceredesire of Anastas'ev himself, the original target of the abusive behavior, to treat the matteras “private.” Anastas'ev’s statutory “public” identity in this instance, the Court held, tookprecedence over all other considerations. Along the lines of the Voden' ruling, a number ofsimilar “service” cases from the initial, formative period of the new judicial system testedthe civil-criminal boundary. The Court remained consistent in its attempt to delimit therealm of criminality and criminal law by fixing it in statute and distinguishing it from thepurview of civil law.103 The civil-criminal distinction it sought to refine thus functioned asboth a guide to more precise use of statutory law, and a reflection of the autocratic andgoverning structure’s interest in maintaining a basic degree of concord and deference insocial relations.104

During the first thirty years of the 1864 judicial reform, Criminal Cassation decisionsreflected a principled adherence to statutory law as a normative, defining framework forresolving conflict in society. Whether the Court was remanding a criminal case to thelower courts for review as a civil law matter, or attempting to refine the application, orrecast the interpretation, of criminal statute in resolving an appeal, its objective was touphold the primacy of written law throughout the judiciary, even if existing statute wasimperfect or insufficiently clear. Criminal Cassation accordingly strove to distinguishconceptually what it deemed to be fundamentally civil violations and cases from criminalones, thereby ensuring a sharper functional separation between the work of criminal andcivil courts and consequently a more rigorous statutory delineation between the adjudicationof criminal and civil law.

Within the upper judiciary especially, and throughout the new court system overall,presiding judges or official interpreters of the law sought to give efficacy to codified lawand elevate its status, while the vast majority of Russians fitfully negotiated their way fromthe traditions of customary law toward the literate conventions of legal modernity. CriminalCassation’s routine assertion of the priority of zakon in settling appeals and achieving judicial

103See, for example, CCD #43, October 24, 1866, CCD #592, July 23, 1870, CCD #975, December 14,1873, and CCD #22, May 1, 1884. In CCD #43, one of the Court’s earliest rulings, a Sudebnaia Palata(“Judicial Chamber”; another newly fashioned 1864 reform court higher in the system than the J. P.-leveltribunals and circuit courts) in St. Petersburg was found in error for having used a different penal statute fromthe one clearly intended for this category of behavior; the Court then proceeded to identify and apply yetanother statute to the plaintiff’s criminal oskorblenie! Furthermore, Criminal Cassation would occasionallylocate and apply an entirely different statute and argumentation in order to decide the case appropriately evenif it upheld the lower court (CCD #22, May 1, 1884, 63).

104See CCD #975, 1873, 1245, in which the cassation plaintiff had been charged with assault and battery(oskorblenie deistviem) against an administrative superior. On strictly procedural grounds (the civil-criminaldistinction was not at issue), the Court rejected the appeal by favoring a statist model of administrative justicethat accorded high value to the inviolability of bureaucratic, executive “personhood.” On the persistent obstaclesthwarting the realization of zakonnost' in Russian administrative justice up to the close of the imperial era, seePravilova, Zakonnost' i prava lichnosti.

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finality embodied its members’ vision of a legality that would influence institutions andstructures throughout the wider autocratic polity. Precisely how the Court regarded andhandled statute (zakon) in its appellate decisions was a crucial dimension of how the statureof the law (pravo) would fare as the 1864 judicial system developed. Zakonnost' in thisaspect was a long-term project, an accumulation and evolution of jurisprudence as the newjustice system took root, and the Court understood this well.

Although the significance of Criminal Cassation activity advanced here may seemstraightforward given the openly Westernizing, modernizing program of the 1864 judicialtransformation, it must be borne in mind that Russian legal culture remained fragmentedand changeable throughout the late imperial era. The importance of any single institutionin the short or long term, therefore, could be considerable, and in this respect, the CriminalCassation Department’s demonstration of legality represented the realization of the basicprinciples of the 1864 reform, and an effort to establish consistency and stability in thecontext of flux and transition in the nation’s legal culture. Reform-era zakonnost' may thusbe regarded as a kind of self-contained rule of law within the broader cluster of coexistinglegalities competing for expression under politically and legally insulated autocratic power.

After autocracy fell in 1917, a new political order and swift social, economic, andcultural transformation ensued, based on “socialist” legality (sotsialisticheskaia zakonnost'),in which statutory law and the judiciary were refashioned as tools to combat the persistenceof the class-based past and nurture an egalitarian society. In light of this profound historicalrupture, it is arguable, of course, that all of the achievements of late imperial Russia in law,its highest courts included, ultimately mattered little. It may be objected that locating aworthy ideal such as legality in adherence to written law is too modest, too limited, andtherefore inadequate to the task of creating a sense of justice and equity. Yet as equivocaland uncertain as the impact of written law can be, the complete lack of any sense of formallegality, or at least some type of agreed, organized tradition of law, seems a far greater risk,in historical perspective, to polity and civil society.

Documents

The Rule of Zakon : The Criminal Cassation Department and Legality in Late Imperial Russia, 1866-94