Russian Monarchy and the Rule of Law: New Considerations of the Court Reform of 1864

The relationship of a legal system—the courts, the legal administration, the discipline of Russian law—to the Russian state has been an ongoing and unresolved problem in modern Russian history and remains a contested issue in contemporary political life. The monarchy, the Soviet regime, and the current Russian government all affirmed and reaffirmed the importance of law and legal institutions, but without abandoning their fear and antagonism toward judicial institutions and judicial expertise. The court reform of 1864 stands out as an exceptional event, a moment when the government accepted a judicial system that embodied the very principles that the rulers and officials of the Russian state had long repudiated as alien and pernicious. When I embarked on my research for The Development of a Russian Legal Consciousness in the mid-1960s, I was principally interested in explaining this extraordinary break from tradition—which, I concluded, could not in the long run overcome the autocracy's jealousy of its prerogatives. Here I revisit this subject, taking into consideration both my own studies of tsarist myth and symbols and later scholarship, some of which contests my pessimistic conclusions about the post-reform era. I examine a question raised, directly or indirectly, in all these works: was a rule of law possible under Russian monarchy?

I sought to find the origins of the court reform by studying the evolving institutions and personnel of the Russian state in the first half of the 19th century—a subject, that, despite its obvious importance, had long been neglected by historians. The Russian state remained a great and powerful eminence, responding at times as an evil force of oppression, at others as a demiurge of progress and enlightenment, whose acts were known but whose motivations and inner workings remained mysterious. Prerevolutionary historians had published initial studies of Russian state institutions, but their treatments had been constrained by limited access to the archives and by ideological biases that prompted either uncritical praise or a determination to seek out the flaws and hypocrisy of governmental policies. Until the 1960s, Soviet historians had paid little attention to the state, which according to party doctrine represented an epiphenomenon, historically determined and ultimately doomed by the Marxist dialectic. Western historians of Russia, including myself, had focused their attention on intellectual history, the history of the revolutionary movement, and later on social history.

It was Petr Andreevich Zaionchkovskii who opened the study of the imperial Russian state to serious scholarship in the 1960s. His numerous monographs and his editions of memoirs made clear that the state represented an entire culture, with its own values, goals, politics, and ideology. Zaionchkovskii recognized and came to propound the role of "the subjective factor" in history, although, of course, he could not do so in print. He viewed the Great Reforms of the 1860s not as a defensive response to an ostensible "revolutionary situation" among the peasantry (even if he gave the obligatory statement of such views in his publications) but as a process taking place in the bureaucracy, where officials responding to the Crimean War devised plans to change Russia in order to enter the new era. He courageously defended this view in public. In the winter of 1966-67, I attended a lecture he gave at Leningrad State University on the role of the subjective factor in history. The large audience, which overflowed the hall, responded with amazement and curiosity.

An understanding of the subjective factor, Zaionchkovskii believed, involved the study of the attitudes and ideas of governmental officials. This aspect of institutional history was of particular interest to me as a student of intellectual history. It demanded the close examination of archival sources, and Petr Andreevich did everything he could to overcome the obstacles...