Criminal law in Muscovy.
On the last page of this monumental and important work Nancy Kollmann summarizes some of her principal conclusions: "This research also shows that Russia in the early modern period possessed a defined law and functioning legal system. It was not excessively violent in the European context, nor was it arbitrary in applying the law. Justice could be slow in coming or suborned, but the system was not one of unbridled satrapies, vigilante justice or uncontrolled brutality. Russia was not a despotism" (426).
Thirty years ago, the claims that the early modern Russian legal system was not arbitrary and that Russia was not a despotism might have been greeted with disbelief and derision. But scholarship on Russian law in the last three decades has pointed toward Kollmann's conclusions, which she fully supports with thorough and meticulous research into the actual practice and application of criminal law in the 17th century and Petrine period. (1)
Kollmann's principal data base is homicide and serious felony cases from two regions: Beloozero in the north and Arzamas in the Middle Volga. The Beloozero archive consists of the records of 128 "litigations" ("criminal actions" might have been a more suitable term), of which 53 are homicides but only 23 are complete (extending through judgment, sentence, and punishment), including 13 homicides. The Arzamas archive contains records of 100 criminal actions, of which only 12 are complete, including 8 homicides (11). "To counterbalance the dearth of completed cases," Kollmann also looked at 152 criminal actions from the Military Service Chancellory and two other archives, which include 72 homicide cases, of which 30 were complete. In sum, her data base consists of 380 total criminal actions, of which 51 are complete homicide cases. Any doubts about how representative this data base is are removed by Kollmann's inclusion of countless other cases and evidence from published sources, including a register of 158 cases from Tobol'sk listing the crime, social status of the accused, and the punishment (218-22). Kollmann incidentally explains the scarcity of complete case records by the loss of records over time and the possible abandonment of cases by the litigants (128). Although Kollmann's data base of criminal actions is the largest studied to date, one hopes that future scholarship will locate and analyze more complete cases. It is, of course, difficult to judge how fairly justice was dispensed without knowing the sentence and punishment.
One particularly valuable contribution of this superlative work is to compare Russia's legal system with contemporary systems in states of Western Europe, generally assumed to have been more sophisticated and advanced. Kollmann, however, concludes that "Russia essentially fit into the pattern of statebuilding, local governance and adjudication seen in some of its early modern peers" (425). Russia was so vast and sparsely populated that it, like its early modern peers, had to rely on the local population to support centrally assigned officials. Coopting the local community meant that community norms played an important role in the administration of justice. (2)
Kollmann's book is divided into two parts. The first deals with "Judicial Culture." In this part she describes the various judicial organs or courts, both in Moscow and the provinces, and how they were staffed. She argues that judicial expertise resided in the scribal class (d'iachestvo), who assisted members of the upper service class heading the central chancelleries and serving as governors. The scribes would receive essentially "on-the-job" training in the law throughout their often decades-long service. They would master and follow a uniform model of bureaucratic language and paperwork. That they developed legal expertise is evidenced by the written reports of cases, which generally show familiarity with the Conciliar Law Code (the huge codification completed in 1649) and other statutes. Indeed, this Law Code itself is the best evidence of the vast accumulated expertise of the Muscovite legal system: it was one of the most comprehensive codifications of its time. (3)
Kollmann, however, perhaps overstates the expertise of the scribes. It is in the absence of universities, law schools, and lawyers that one sees a distinct contrast with the legal systems of Western Europe. Professional lawyers not only can provide the critical analysis necessary to apply the law consistently and fairly, but they operate outside of the state and try to use principles of law to the advantage of their clients. Thus in the West, unlike Muscovy, law developed independently from the state. Professional lawyers also tend to elevate the law to a transcendent concept of legality to which even the monarch himself is subject. To give a few examples, it is impossible to imagine that anything similar to the English "Case of Proclamations" could ever occur in Russia. In this case, decided by Sir Edward Coke in 1610, King James I had by proclamation prohibited the construction of new buildings in and around London and the making of starch and wheat. Coke, sitting as Chief Justice of the Common Pleas, ruled that "the King cannot change any part of the common law, nor create any offence, by his proclamation, which was not an offence before, without parliament." (4) Closer to home, the Muscovites were familiar with the Lithuanian Statutes. There was a Western-style law school at the university in Krakow, and perhaps its influence can be seen in the Preamble to the Lithuanian Statute of 1529, in which King Sigismund confirmed that privileges, rights, and freedoms previously given were binding on him and promised to preserve and secure them, "commanding that they be valid for all time." (5)
Kollmann does, however, admit that Muscovite law provided fewer safeguards against the abuse of torture than did Western European law (135-40) and that Muscovite courts suffered from a shortage of qualified personnel and other resources (93, 109). But she amply demonstrates that torture and inquisitory procedure were as widely used in the West as in Russia.
While Kollmann perhaps overstates the comparability of Muscovite law to the law of the states of Western Europe, she provides copious and compelling evidence that the Muscovite and Petrine courts followed the written law, scrupulously observed what procedural safeguards there were, employed procedures designed to marshal all relevant facts, and reached judgments that appear to be well supported by the evidence. Judges in the provinces acted autonomously but could obtain guidance from the center for difficult cases. Cases involving the highest political and religious crime were, however, handled at the center. The system also offered the right to appeal the judgment (chap. 7).
Kollmann also demonstrates how Peter the Great attempted unsuccessfully to reform the system to separate judicial from administrative functions and to establish three levels or instances of courts, of which the Senate was the highest.
The second half of the book is titled "Punishment." In general, the 17th century saw the more liberal use of corporal punishment, generally the knout and usually in public. But judges showed flexibility in applying corporal punishment appropriately (chap. 10). One of the most valuable contributions of the book is its demonstration of how capital punishment gradually was displaced by exile for the most serious nonpolitical and nonreligious crime. To identify those sentenced to exile, bodily mutilation was usually employed. Thus Russia by the late 17th century used capital punishment much less than did the West. Rebel leaders, traitors, and heretics, however, tended to be executed brutally in public, and here Russia perhaps borrowed its "spectacles of suffering" from the West. Studying the copper riots and the Razin rebellion, Kollmann shows that Muscovy judiciously executed only the leaders and showed mercy to the mass of followers. So ingrained were judicial norms that Razin showed respect for such norms in handling his captives. Sometimes even rioters would show respect for judicial norms (399).
Kollmann's book is a monumental achievement in explaining how the Muscovite and Petrine criminal justice systems operated in practice. She fully supports her conclusion that the system was not arbitrary, that it followed judicial norms somewhat comparable to those in the West, and that it generally reached just and appropriate judgments and sentences. Of course, great works of scholarship like this one tend to raise as many questions as they answer. One would have liked Kollmann to have dealt more extensively than she does with where Russia, traditionally considered a backward country, got its well-developed sense of "legality" and even due process. She agrees with this reviewer that inquisitorial procedure and the wide use of torture as a tool of investigation came to Muscovy from the Hapsburg Carolina. (6) She also frequently mentions Russia's Byzantine heritage and the Byzantine law handbooks available starting as early as the 13 th century. Most of these norms, however, did not become part of the published law until the promulgation of the Conciliar Law Code of 1649, so there is a difficult issue of timing to deal with here. (7)
One must also question Kollmann's failure to include a fuller discussion of the punishment of serfs and the machinery in place for the recapture of escaped serfs, a task to which considerable resources were devoted (escaped serfs were treated essentially as criminals, and one suspects they received brutal corporal punishment once returned to their original lords). There is a short discussion of landlords' justice (41-45), which observes that landlords and their staffs liberally wielded violence. But serfdom was such a brutal institution in so many ways that it deserves more discussion in a work that portrays Russia as "not a despotism." One suspects that serfs were often brutally punished for relatively minor offenses. To be fair, however, this omission by Kollmann is understandable, because the justice meted out by landlords was not covered in her data base of serious felony cases, and there are in fact few records of this aspect of Muscovite justice.
These faults are, however, minor when weighed against Kollmann's immense achievement and meticulous scholarship. This book is the best study of early modern Russian law and one of the best works on the early modern Russian state to appear in decades.
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(1) See, e.g., Nancy Shields Kollmann, By Honor Bound: State and Society in Early Modern Russia (Ithaca, NY: Cornell University Press, 1999); George G. Weickhardt, "Due Process and Equal Justice in the Muscovite Codes," Russian Review 51, 4 (1992): 463-80.
(2) For an excellent treatment of this aspect of the book, see Paul Bushkovitch, "Law and the State in Early Modern Russia," Russian Review 72, 4 (2013): 647-52.
(3) Richard Hellie, The Muscovite Law Code: The Ulozhenie of 1649 (Irvine, CA: Charles Schlacks, 1988); for more on the scribal class, see Peter B. Brown, "Neither Fish nor Fowl: Administrative Legality in Mid- and Late-Seventeenth-Century Russia," Jahrbucher fur Geschichte Osteuropas 50, 1 (2002): 1-21.
(4) The full text of this case is most easily found at http://www.bailii.org/ew/cases/EWHC/ KB/1610/J22.html. The official citation is EWHC KB J22 (1610).
(5) The Lithuanian Statute of1529, trans. and ed. Karl von Loewe (Leiden: Brill, 1976).
(6) George G. Weickhardt, "Probable Western Origins of Muscovite Criminal Procedure," Russian Review 66, 1 (2007): 384-400.
(7) George G. Weickhardt, "Early Russian Law and Byzantine Law," Russian History 32, 1 (2005): 1-22.
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|Title Annotation:||Crime and Punishment in Early Modern Russia|
|Author:||Weickhardt, George G.|
|Article Type:||Book review|
|Date:||Mar 22, 2016|
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