The practice of law and the promise of rule of law: the advokatura and the civil process in Tsarist Russia.
The personal notoriety of leading political defenders has overshadowed the fact that most sworn attorneys in late 19th- and early 20th-century Russia were neither great social activists nor "radical opponents of the tsarist order," as one historian has described them. (1) Instead, sworn attorneys in tsarist Russia primarily specialized in the less glamorous and inherently more conservative practice of civil law, the body of law regulating private relations. (2) Maksim Moiseevich Vinaver, a prominent sworn attorney and civil law specialist (tsivilist), noted that the principal task of an advocate, not only in Russia but all over the world, was the "realization of civil justice in a [given] country," a responsibility that rarely attracts public attention. (3)
As in other legal systems, Russian sworn attorneys engaged in disputes that from time immemorial have required lawyers: contracts, real estate, wills, civil litigation, commercial transactions, corporate compliance, bankruptcy, and so on. Some lawyers thrived in this environment; others eked out a more modest--and mundane--existence. By focusing on the routine practice of civil and commercial law, this article provides a more balanced picture of the daily lives of sworn attorneys. Yet it also contends that, in response to a growing demand for legal advice, the civil practitioner acted as both a "servant and a creator of law," thereby placing the advokatura at the forefront of legal development in Russia. (4)
Heretofore, the study of tsarist civil law primarily has focused on the most powerful institutional players--the important legislative commissions, Russia's highest appellate court (the Civil Cassation Department)--and how their pronouncements filtered down into Russian society. In particular, William G. Wagner's pathbreaking analysis of the Civil Cassation Department showed how the high court's rulings addressed the gaps and inconsistencies of Russian civil law, especially in the areas of inheritance and property rights. (5) Yet, as Wagner demonstrated, all these judicial decisions largely arose in reaction to developments within Russian society, not at the command of the Russian state
It was the advokatura and its organized corporate structures (sovet prisiazhnykh poverennykh, the bar) that served as the crucial intermediary in the search for civil justice. The Judicial Reforms of 1864 specifically tasked the profession with turning the private complaints of individuals and companies into legal actions. But the development of tsarist civil law cannot be understood simply by reviewing the docket of individual advocates. One also must consider the social and political implications of the civil process, and the profession's critical role in promoting it. How did the representation of business and economic interests by sworn attorneys affect their overall public image? Was the development of civil law--which invariably involved the defense of property interests--a viable path to the greater recognition of civil rights and the rule of law in Russia?
Scholars have contrasted the Anglo-American notion of "rule of law"--and its reliance on certain fundamental rights and natural law principles that stand above the state--with the German idea of Rechtsstaat, or the "law-based state." (6) From a theoretical standpoint, the Russian concept of pravovoe gosudarstvo closely resembled its Continental--and fellow civil law--counterpart: a state subject to, and bound by, its own laws. Such a theory was not cluttered by long philosophical discussions of natural law but instead sought to limit executive power by installing an independent legislature as the primary law-creating institution.
The advokatura largely shared this vision of the law-based state as its ultimate political objective, but sworn attorneys also possessed a unique platform--the courtroom--where they could raise due process arguments and fight for basic individual and civil rights that more broadly correspond with the concept of rule of law. (7) The great political trials of the 1870s and the early 20th century allowed lawyers to raise issues of freedom of speech, assembly, and the press. However, as this article argues, the civil process--and its defense of individual and property rights--ultimately provided sworn attorneys with the most stable forum in which to advance the rule of law as an essential component of the law-based state.
The career path and bar membership left sworn attorneys largely outside Russia's social and political elites, unless, of course, their services suddenly became necessary. The implications of the practice of civil law, however, reverberated far beyond the walls of an advocate's chambers or the local courthouse. Russia's increased litigiousness in civil matters--with lawyers serving as critical agents--pointed to a growing understanding of law within Russian society and willingness to accept legal remedies.
It was the advokatura--or, more accurately, the profession's most prominent members--who displayed the idealism and progressive "legal consciousness" that had inspired the original drafters of the Judicial Reforms of 1864. (8) By highlighting the routine practice of law, however, this article provides a clearer picture of the bar's professional standing and its limited capacity to advance a concept of rights. This article begins by grounding the advokatura in the legal and social environment in which it operated. It next investigates the highs and lows of the practice of civil law. The daily activities of sworn attorneys, I argue, reflected Russia's broader struggle for the rule of law yet hinged on the bar's mixed reputation and the professional and economic pressures associated with the "business" of law.
Finally, this article explores the impact of sworn attorneys on one of the major legal transitions of the postreform era: the emergence of a private law (chastnoe pravo) tradition where the state provided the legal infrastructure but did not (theoretically) intervene in the property, contractual, and other personal disputes among individuals. Private law serves as an essential counterbalance in any civil law system to the public law powers of the state. (9) This article demonstrates how sworn attorneys used private law and the civil process as a means to inject the defense of individual rights, adversarial proceedings, property rights, and other rule-of-law principles into the Russian legal system, in the process challenging the entrenched beliefs of both the Russian state and the intelligentsia.
Tsarist Civil Law: Supply and Demand
Any attempt to understand the private legal practices of sworn attorneys must be predicated by a discussion of the nature of the tsarist legal system itself. To assess modern-day Russian civil law, Professor Kathryn Hendley has used the prism of "supply and demand," looking both at the "availability" of law (i.e., existing law codes) and the Russian people as consumers of law. (10)
Such a framework provides a useful perspective on the evolution of prerevolutionary law as well. For 50 years after the introduction of the Judicial Reforms of 1864, Russia witnessed an unparalleled expansion of what Hendley describes as the "demand" for law--that is, citizens availing themselves of the courts to resolve private disputes. (11) Between 1886 and 1914, the number of annual civil cases in Russian district courts more than doubled from 121,050 to 277,443. (12) In addition, between 1866 and 1912, the number of yearly small civil claims before the justice of the peace courts rose exponentially from 237,176 to 1,725,343. The latter number of small civil actions further increases to 2,370,994 when one includes circuit (uezdnyi) and city courts. (13)
Yet even these numbers do not tell the whole story. Several Russian cities, including St. Petersburg and Moscow, maintained separate commercial courts that predated the Judicial Reforms of 1864 and reviewed thousands of bankruptcy, promissory note (veksel), and other business-related disputes every year. The commercial courts offered expedited procedures more similar to a third-party arbitration panel than a formal court proceeding, and had the added advantage (from the litigants' perspective) of being decided by fellow merchants, not judges. (14)
The growing demand for law was satisfied through other institutions as well. Sworn attorneys and their assistants (pomoshchniki, attorneys-in-training) provided pro bono advice and established independent consultation bureaus (konsul 'tatsii) that advised workers and other urban residents about the potential viability of civil and administrative cases. (15) Finally, Russian peasants overwhelmed the volost ' (township) courts with property disputes and other civil actions, and although these cases were governed by customary law and technically off-limits to professional advocates, peasants sometimes turned to the consultation bureaus for assistance with their volost' claims. (16)
Although sworn attorneys were the obvious beneficiaries of this upsurge in civil litigation, the government's failure to grant the bar's professional monopoly as originally promised under the Judicial Reforms meant that the advokatura competed with numerous law practitioners, some licensed by the state and others not. (17) The latter so-called "underground" advocates siphoned off a significant amount of petty litigation, small claims disputes that did not necessarily pay well but nevertheless provided many young attorneys with their initial source of clients. (18) At the top end, the failure to establish a professional monopoly meant that sworn attorneys lost business to litigants who chose to handle disputes themselves. (19) Therefore, multiple practitioners competed to meet Russia's growing demand for law, although only sworn attorneys possessed the characteristics of an established "profession" (i.e., corporate autonomy, selective admissions, a code of ethics, etc.). (20)
The numbers also cannot tell the whole story about public attitudes toward the law. Peasants, for example, may have turned to the courts with increasing frequency, but they also regularly resorted to extralegal methods to resolve local disputes. (21) The consultation bureau reports further suggest that injured workers often left disillusioned with their limited legal options in pursuing damages from negligent factory owners. (22) Nevertheless, the dramatic increase in civil litigation can be interpreted as a sign of a growing legal awareness within different parts of Russian society; after all, such a dramatic surge in the use of the courts is hard to explain unless litigants believed that they could get some sort of legal satisfaction for their grievances.
Yet even as more people turned to the courts, the supply of law--the specific laws that regulated Russian commerce and financial relations--generally failed to keep pace with Russia's rapidly developing economy. Close inspection shows that the volume devoted to civil law in Russia's 1832 Digest of Laws (volume 10) represented a legal transplant of Western legal norms and principles that were not substantively rooted in the Russian legal tradition. Vinaver meticulously identified the foreign borrowings from the French Napoleonic Code and Austrian Civil Code that managed to enter into Russian civil law. (23)
Moreover, as Russia modernized at the end of the 19th century, the civil code became increasingly outdated. In his well-known 1909 essay "In the Defense of Law," published in Vekhi (Landmarks), Bogdan Aleksandrovich Kistiakovskii sharply criticized the current state of Russian civil law: "When people talk about the instability of our legal system, they usually point out the defectiveness of our property law. And in fact, our civil code is archaic, we have no commercial code at all, and certain other spheres of civil law go almost unregulated by precise norms of written law." (24)
Russian corporate law also was perceived as backward. According to one commentator, the 1836 Law on Companies was "incomplete and confused and quite inadequate to meet all the requirements of the enormous modern development of this form of commercial undertaking." (25) Behind all these technical legal deficiencies lurked a powerful--and arbitrary--Russian state. Vladimir Danilovich Spasovich is perhaps best remembered as one of tsarist Russia's leading criminal lawyers, but in fact, he maintained a sizable civil practice as well. He commented on the outsized influence of the Russian state in one of his speeches to the St. Petersburg bar: "It is difficult to fight a joint stock company [aktsionernoe obshchestvo], especially if its income is guaranteed by the government; behind it stands all the ministers. Certain defeat awaits if I have a suit with a city. And if my opponent is the treasury, I will perish ... not because behind it [stands] the law, but [because] behind it [stands] power, behind it [stands] the Ministry of Justice." (26)
Finally, like all great empires, the Russian legal system maintained a tangled network of separate courts and jurisdictions for individual ethnic groups (Finns, Poles, the Baltic states), religious confessions, and social strata (peasants, nomads) that led to a plethora of distinct legal cultures within Russia. (27) Although such legal pluralism is a standard feature of most multinational empires, Russia's patchwork combination of regional and customary law made it impossible for the existing 1832 civil code to serve its nation-building function of promoting uniformity and equality under the law.
The autocracy clearly recognized the deficiencies within Russian civil law and, starting in 1882, organized a series of special commissions that spent decades drafting a revised civil code without ever bringing the project to fruition. (28) Russia's highest civil court, the Civil Cassation Department, also addressed gaps in Russian legislation by issuing decisions that de facto represented judicial precedent and were followed by lower courts. (29) Yet as a civil law country--where the written code and not judicial interpretation is seen as the primary source of law--the notion that court decisions carried the weight of precedent was sharply disputed by Russian legal scholars. (30) Corporate law also ran up against social and political considerations that led the autocracy to limit the ownership rights of Poles, Jews, and other ethnic minorities right up to 1914. (31)
Russia's weak supply of law ultimately extended beyond the outdated statutory codes to include Russia's reformed legal institutions: the judiciary, the jury system, and especially the advokatura. In 1874, the autocracy "temporarily" suspended the creation of autonomous bar associations after their establishment in just three cities (Moscow, St. Petersburg, and Khar'kov), a moratorium that ultimately lasted some 30 years. The meritocratic admission policy within the advokatura was also halted after Jews overwhelmed the profession in the 1880s. This dramatic influx led the Russian state in 1889 to require that all Jewish applicants first be approved by the Ministry of Justice before they could become sworn attorneys, a decision that, except for a brief period at the turn of the century, closed the doors on Jewish lawyers seeking formal admission to the bar. (32)
The bar's diverse ethnic makeup--and weak corporate structures--left the advokatura largely outside the judicial establishment and high-level legal deliberations within Russian officialdom. As early as 1873, Spasovich complained that instead of being a nursery for future magistrates, the advokatura had become a "mass refuge, a kind of asylum." (33) Spasovich later lamented the limited role that the advokatura played in Russian public life. "I remember what the Belgian king, Leopold II, said in front of me," Spasovich recalled, "that all his ministers were advocates." (34) Members of the advokatura did participate in the regional law societies that sprouted across Russia, contributing scholarly articles on various civil law issues, and a few sworn attorneys even worked their way back to state service and academia. (35) The bar itself, where finally introduced, however, remained uniquely outside state structures, lacking the political clout to contribute to the major government debates on the status of Russian civil law. (36)
Reconciling the conflicting signs of strong demand and weak supply makes it difficult to provide a definitive answer as to the bar's ultimate role in the evolution of Russian civil law. Sworn attorneys served as a crucial intermediary in the civil process, but the broader deficiencies within the Russian legal system rebounded against them as well. I. V. Gessen in his memoirs highlighted how the sworn profession's reputation was damaged by the obsoleteness and unfairness of Russia's written law: "Judges applied the law, one might say, passively, according to their duties, but this did not lead to an indictment against them. The advocate actively defended the application of a law, even if it was an unjust law, and the law's odium was transferred to him despite the fact that the Judicial Reforms demanded from him an oath, to the best of his ability, to uphold the law precisely and deprived [an advocate of] the right to reject a court-appointed defense." (37)
In sum, sworn attorneys were a product of their times, and the practice of civil law reflected both the strengths and weaknesses of Russia's evolving legal system. Nevertheless, the growing demand for law worked to the distinct advantage of the advokatura. In particular, as we will now see, an increasingly litigious society created new opportunities for sworn attorneys to succeed professionally while making major contributions to the development of Russian civil law.
The Professional Heights
The advokatura challenged imperial Russia's hierarchical structures in multiple ways--in terms of its professional requirements, corporate independence, and source of social mobility. As previously mentioned, through a series of counterreforms, the autocracy whittled away at all these attributes, yet it never managed to undo what it had created in 1864. Thus a well-educated, highly experienced cadre of lawyers emerged from the Judicial Reforms. The traditional career path for most sworn attorneys included a university degree in law and then a five-year apprenticeship as an attorney-in-training under the supervision of a sworn attorney. Most sworn attorneys, however, failed to provide any meaningful supervision, meaning that these junior lawyers had to hustle to find clients and establish a practice to make a living wage. (38)
Formal admission to the bar did not ease these financial burdens. No law firms existed in tsarist Russia, so the life of a sworn attorney was in many ways a solitary affair. The sworn attorney's home usually doubled as his office. Depending on one's clientele, a career in the advokatura held out the prospect of substantial financial reward. (39) At the same time, as solo practitioners, sworn attorneys could suddenly find themselves destitute because of an unexpected illness or other personal problems. To provide some kind of safety net, the Moscow and St. Petersburg bar associations organized emergency assistance funds for attorneys and their families. (40)
To reach the top of the profession, one invariably had to work for the large financial institutions or corporations spawned by Russia's economic transformation or for wealthy individuals. "Every enterprise," wrote the prominent lawyer Boris L'vovich Gershun, "required a legal adviser \iuriskonsult\ and some--such as banks, insurance companies, and railroads--needed several legal advisers." (41) Other sworn attorneys specialized in administrative cases involving trading companies or represented railroads. Foreign companies regularly sought out Russian advocates to handle their domestic corporate activities. In Moscow, there was a small cadre of sworn attorneys who owed their financial success to their German background and to the growing number of German firms who had their headquarters in Moscow. (42) Outside the corporate and financial world, there were the usual profitable specialties--such as inheritance law--which, provided that a sworn attorney had a particularly wealthy clientele, paid a significant honorarium for a relatively small amount of work. (43)
If one had the right connections, then one could quite quickly build up a sizable practice. In 1878, for example, S. A. Andreevskii resigned as the assistant procurator of Petersburg after he refused to participate in the prosecution of Vera Zasulich. Thanks to the patronage of the renowned judge and legal scholar A. F. Koni, Andreevskii became a highly paid legal adviser to the St. Petersburg Mezhdunarodnyi Bank. (44)
The career of Boris L'vovich Gershun represents a more typical route to the top of the sworn profession. The son of a doctor, Gershun first trained in the Judicial Department of the Ruling Senate, where he was assigned to the commercial courts. After spending just 15 months in state service, however, Gershun became an attorney-in-training under the supervision of V. N. Gerard, a highly respected and long-serving member of the St. Petersburg governing bar council. When Gershun joined the bar in 1900, he was quickly recognized as a leading expert in civil law and his practice soon thrived. He became the legal adviser for several trade and industrial companies (17 at one time) and represented several prominent members of the aristocracy. So successful was Gershun that, unlike most of his colleagues who had at most one attorney-in-training, Gershun had upward of ten junior lawyers working in his office. (45)
The advokatura, however, was more than just a service industry (and a well-compensated one at that) responding to the growing demand for legal advice among prominent Russian individuals and businesses. Sworn attorneys also put forward legal arguments that worked their way to the top of the legal system, thereby directly addressing the supply of law as well. (46)
Aleksandr Iakovlevich Passover, a brilliant, rather eccentric man, was broadly recognized by his peers as Russia's foremost civil and commercial litigator. A graduate of Moscow University, Passover initially trained for a professorship and then became an assistant procurator, only in both cases to find his advancement blocked because he was Jewish. Refusing to change his religion, Passover eventually became a sworn attorney, first in Odessa and then, in 1872, in St. Petersburg, where he quickly established his preeminence in the area of civil law. According to the defense attorney O. O. Gruzenberg, Passover "was showered with cases and huge sums of money." (47)
Such was the demand for Passover's services that he often passed highly profitable cases to his colleagues. His greatest triumphs occurred before Russia's highest court, the Civil Cassation Department. There, wrote M. L. Gol'dshtein, Passover knew no rivals: "White-haired Senators ... not only agreed with him but submitted to his mind, logic, knowledge, brilliance, and profundity. One can say that the practical achievements of the Civil Cassation Department for 40 years were the result of Passover's influence, that the principal decisions that became standards were inspired by Passover." (48)
Sergei Andreevich Muromtsev approached Russia's supply-of-law question both from a practitioner's and from a scholar's perspective. Muromtsev started his career in academe, where he distinguished himself as the founder of the Russian school of sociological jurisprudence. This theory traced its origins to the German legal scholar Rudolf von Jhering and would later resonate in the writings of Roscoe Pound and the U.S. law and society movement. At its core was a bottom-up approach to law that required that it change with the times. Much legal research in the 19th century was focused on Roman law and the dogmatic study of law. Muromtsev did not necessarily reject the study of legal dogma. He insisted, however, that it not be studied in isolation but instead should relate to present-day civil law developments. (49) Muromtsev further looked to society as the primary source of law, defining law as those social relations (otnosheniia) among people, defended by particular (i.e., organized or legal) means. (50)
Thus under Muromtsev's theory, the law became evolutionary, not static, emerging from the everyday interactions of people and not simply reflecting the historical pronouncements of the state. (51) Muromtsev never contemplated a career in the advokatura, but alleged antigovernment statements led to his ouster from his university post; in 1884, he joined the Moscow bar as a sworn attorney. (52) Muromtsev's practice soon flourished, and he had so many clients in St. Petersburg that he maintained apartments in both cities. (53) Although Muromtsev's scholarly knowledge of the law made him a leading appellate lawyer, he preferred the title of iuriskonsult to describe the less public advisory nature of his commercial practice. (54)
But what separated Muromtsev from other civil lawyers was the erudition and scholarship that he brought to his arguments. As Vinaver later noted, Muromtsev "loved the civil process more than he loved civil law." (55) In practice, this meant that he was more concerned with explaining general legal norms as opposed to narrowly focusing on specific legal provisions. Already with his first words a case "acquired a cassation [i.e., appellate] character, because where there was a problem, there was a place for a principled answers." (56) Russia's high courts could not avoid the questions raised by Muromtsev, and even in his everyday legal practice, Muromtsev was geared to the "creation of legal norms, since his very method of working out the actual law was the method of uncovering legal principles." (57)
Thus Muromtsev's method of legal analysis was always probing the supply side of Russia's civil law equation. The diminished role of the state under Muromtsev's legal theory--where the law emerged from daily life as opposed to commands from above--also created a direct path to a new civil-legal order in imperial Russia: the law-based state. That the autocracy blocked the careers of both Muromtsev and Passover highlights the bar's ambiguous position within the Russian legal system. Each man ran afoul of the autocracy's ideological directives. Yet despite their outcast status, Muromtsev and Passover still found ways to work within established legal structures to advance the civil process and Russia's broader economic and social transformation. They did so, however, to limited public acclaim; as Vinaver later noted, the courtroom speeches of Russia's great sworn attorneys largely went unrecorded and unpublished. (58)
Therefore, it was primarily left to the advokatura itself to draw attention to the profession's courtroom accomplishments in promoting the rule of law. As the sworn attorney G. B. Sliozberg noted: "All our judicial practices represent not only the work of the judiciary but also the work of advocates, their attorneys-in-training, or the auxiliary organs of justice. All cassation practices, which have had so much significance for our law, were drawn up with the energetic and almost continuous participation of the advokatura." (59)
In addition to their pleadings in court, sworn attorneys also published scholarly and practical articles on the prominent civil law topics of the day. Spasovich authored articles on intellectual property and corporate law. (60) Vinaver wrote essays on contracts, inheritance, bankruptcy, and other civil law issues that were later published in Iz oblasti tsivilistiki (From the Files of a Civil Lawyer). This growing expertise was not limited to the major legal centers; Sliozberg identified G. F. Bliumenfeld, a sworn attorney from Odessa who wrote on land and inheritance issues, as one of the leading civil law specialists in all of imperial Russia. (61)
Thus sworn attorneys addressed both the supply and demand for civil law, defending Russia's diverse propertied interests along the way. Yet as we will now see, the practice of civil law brought out the best and the worst in Russia's civil practitioners. Economic pressures and persistent ethical lapses undermined the bar's reputation, thereby limiting its ability to promote the rule of law.
The glowing remembrances of individual sworn attorneys should not obscure the difficulties of working within the tsarist legal system. On a practical level, this meant dealing with a whole series of annoyances. If one wanted a copy of a legal document, wrote the Moscow sworn attorney G. V. Bertgol'dt, one had to pay a secretary an extra fee--on top of the given price--just to get it copied. Bertgol'dt lamented the difficulty of explaining to a simple client that this supplemental fee was not a bribe. (62) Resentful judicial personnel often were suspicious of sworn attorneys and saw them as rivals, not colleagues. The relationship between sworn attorneys and magistrates was also, at times, acrimonious.
But besides the day-to-day polemics with a perfunctory judge or a dishonest bureaucrat, it also must be remembered that Muromtsev, Passover, Gershun, and other leading civil lawyers represented a small minority of sworn attorneys. This tiny elite managed to attract the most lucrative cases and moved in the upper levels of Russian society. Although members of the intelligentsia did not necessarily embrace the advokatura--Dostoevskii famously referred to a school that turns out "shrewd minds and dry hearts"--they willingly turned to lawyers when their services were required. (63) For example, when Tolstoi wanted to draft a will--and, more important, deny his wife access to the intellectual property rights of his works--he turned to the sworn attorney N. K. Murav'ev for assistance. (64)
For most members of the advokatura, however, life was much more of an uphill struggle. Without a constant stream of well-paid civil and commercial cases, many sworn attorneys were left no choice but to build up an alternative practice, a mixture of civil, administrative, and criminal law that inevitably included a significant number of tedious, unprofitable disputes. Such work was far removed from the rather glamorous practices of Russia's leading civil and criminal attorneys. An anonymous article, signed "old advocate," spoke of the spiritual drudgery that accompanied a career in the advokatura. For every minute of interesting work came hours of monotonous, boring preparation. This work, the old advocate added, "enslaves us advocates entirely, and each of us ... becomes, by the end of our legal careers, mere machines, programmed to conduct judicial cases. Dead thoughts, a knack for judicial cliches, a weariness of attending to people and cases, passivity, inertia--this is all that remains of an advocate who has reached old age." (65)
Within this throng of advocates, one discovers what generously can be described as the lower tier of the profession, sworn attorneys who either intentionally or out of ignorance violated professional ethics. Some commentators went so far as to compare the strategies of individual sworn attorneys with the questionable activities of Russia's pre-1864 legal practitioners (the striapchie). (66)
Several fleeting glimpses of such opportunistic, disingenuous sworn attorneys appeared in the press, legal literature, and perhaps most damagingly of all, in the annual summary of disciplinary proceedings published by the bar. (67) All these reports identified various ethical lapses; one advocate who used his position as chairman of a bankruptcy dispute to enrich himself personally, another who represented both sides of a dispute, and yet another who grossly inflated his fee in an otherwise straightforward inheritance case. (68) The extent of such ethical violations remains unknown, but such persistent negative portrayals of sworn attorneys--and the work that they did--gradually chipped away at the bar's reputation.
How does one characterize, therefore, the typical legal practice of a Russian sworn attorney? The standard image of an advocate centers on his public role--a legal representative, pleading in court. The advokatura was not bereft of gifted speakers, especially among its elite members, but among the estate at large, public advocacy was in many ways a lost art. Spasovich, himself one of the bar's most spellbinding courtroom orators, admitted that the sworn profession "did not place as much significance, as Western Europe does, on legal eloquence in comparison to written preparation." (69)
Therefore, instead of arguing primarily in court, sworn attorneys more often found themselves participating in the nitty-gritty of everyday commercial and administrative disputes. According to one newspaper, an advocate's legal practice usually revolved around "bankruptcies [konkursy], public auctions, the search for debtors, evictions from apartments, [and] the selling of debtors' property, [while] occasionally composing judicial documents and even more rarely giving serious judicial speeches." (70)
Sworn attorneys seemed to be constantly on the go, moving from government departments, police stations, banks, and the offices of notaries. Pleading in court, in many ways, was seen as only a tangential part of one's professional responsibilities. There are a great number of sworn attorneys, wrote M. G. Grebenshchikov, "who plead only by appointment of the court but primarily act in bankruptcy cases or busy themselves with the recovery of straightforward documents and other such things, demanding not so much knowledge in the sphere of juridical and social sciences but a certain cunning and street smarts." (71)
Sworn attorneys were thus more inclined to play the private role of a solicitor--the collector of evidence--as opposed to the public role of an advocate--the presenter of legal arguments in court. From a modern perspective--and especially from an American point of view, where there is no divided legal profession--the professional activities of Russia's sworn attorneys seem rather conventional. In 19th-century Russia, however, sworn attorneys were primarily compared with English barristers and French avocats. Thus Grebenshchikov's comment that if a French avocat saw what a sworn attorney did he would be "horrified" reflected a widely held belief that the bar had failed to meet the elevated standards of an advanced legal profession. (72) The active pursuit of clients by sworn attorneys, the technical nature of their work, and their seemingly constant preoccupation with money were all seen as beneath the dignity of a true advocate. Even when fulfilling their designated responsibilities, sworn attorneys were portrayed as excessively greedy. Their "reputation as strict executioners of the law presented itself in an unfavorable light," wrote N. I. Gratsianskii, because "the public had begun to believe that the insolvent debtor was only a sacrifice for an advocate's appetites." (73)
The duties of a barrister and a solicitor--combined in Russia into one sworn attorney--were viewed by critics of the advokatura as incompatible. On the one hand, wrote Evgenii Vladimirovich Vas'kovskii, the sworn attorney "is a scholarly jurist with the highest academic credentials, a servant of justice, an assistant of the court, the equal of the procurator. On the other hand, [the sworn attorney] is the hired agent of private individuals, performing for them that troublesome, unattractive, and even personally humiliating work, such as running around the offices of judges, bailiffs, [and] the police, preparing inventory and selling, under the auctioneer's gavel, the last property of a confused debtor, and so on." (74) If the stringent, professional regulations of the French legal profession were applied to sworn attorneys, Vas'kovskii added, then a "good one-half of all sworn attorneys would be expelled from the estate" for activities incompatible with the profession. (75)
Tsarist legal commentators may have possessed a rather idealistic picture as to what constitutes the daily practices of lawyers. Nevertheless, it must be recognized that the advokatura struggled to implement and enforce the highest professional standards for its members. Sworn attorneys were largely free to set their own honorarium in each case, thereby opening up the profession to repeated charges of excessive fees. (76) A government commission in 1889 noted that sworn attorneys regularly received 50 percent or more of any civil settlement, thereby contributing to what one newspaper referred to as the "hired mercenary" reputation of the advokatura. (77)
Major concerns were also voiced about the growing links between sworn attorneys and private financial institutions, where sworn attorneys not only provided legal advice but also became active participants in business ventures. When a Moscow bar special committee investigated the extramural activities of the profession, it found that sworn attorneys were working as directors and secretaries of credit and stock companies, managers of different philanthropic societies, as a business manager of a newspaper, a secretary of a racing society, and as an agent for an insurance company. (78) Not only did these auxiliary posts undermine the very independence of the advokatura, but how, it was asked, could a sworn attorney fulfill his responsibilities to the profession if he had so many external obligations?
Thus in the process of practicing civil law and defending commercial interests, sworn attorneys became economic players in their own right. The Moscow and St. Petersburg governing bar councils recognized that the growing links between their members and private enterprise was damaging the profession's reputation, but their efforts to control these extraneous activities met with little success. (79) The bar's disciplinary record for punishing ethical violations also was judged by many--both inside and outside the profession--as inconsistent and overly lenient. One newspaper described the St. Petersburg Bar Report, and its summary of its disciplinary proceedings, as the annual "indictment" against the advokatura. (80) Other commentators highlighted what they considered to be the most forgiving decisions of the bar's disciplinary tribunal. (81)
Some of the bar's problems can be discounted as the growing pains of a relatively new profession trying to forge an advanced code of ethics. The failure to implement the bar's monopoly right over practice also meant that the advokatura was not in full control of its public image. Changing the professional attitudes and behaviors of sworn attorneys, however, proved to be difficult. As a result, many of the criticisms regarding low professional standards had the ring of truth to them and stuck to the advokatura. As Kistiakovskii noted in Vekhi, in Russia "the fight for law is too easily obscured by other aspirations, and our prominent [sworn attorneys] nearly always turn into ordinary businessmen." (82)
Russian lawyers were by no means unique in striving for financial success; all the Western legal professions possess a combination of learned counsellors, narrow specialists, eager petitioners, and ambulance chasers. The pitfalls of legal practice clearly damaged the bar's reputation and made it an imperfect promoter of the rule of law. Yet the civil process--fueled by the growing demand for law--contained its own internal dynamism that engaged individual sworn attorneys and the profession in a larger struggle: the establishment of the law-based state.
Private Law and the Pursuit of the Law-Based State
Like other civil law jurisdictions, the prerevolutionary Russian law maintained a distinction between private law--the realm of individual disputes among citizens--and public law, the interactions between citizens and the state. Tsarist legal scholars recognized the difficulty of identifying the exact border between private and public law. (83) Nevertheless, civil law disputes came under the category of private law and, as a result, were largely considered apolitical; the state was not an interested party but instead provided the "rules of the game" and a neutral forum to resolve individual disputes. (84) In practice, however, the civil process carried much broader public overtones, thereby enabling the advokatura to push the boundaries of the private law/public law divide.
Most notably, the rise of the independent advokatura and the pursuit of civil justice came directly at the expense of the state's most powerful legal institution: the procuracy. Prior to the Judicial Reforms of 1864, the procuracy--the eyes and ears of the state--was assigned broad supervisory powers over civil litigation, including the right to protest any case regardless of whether the parties themselves chose to appeal. (85) Although this oversight authority appears to have been invoked in limited circumstances, the drafters of the Judicial Reforms of 1864 recognized that the wide powers of the procuracy went against the newly enshrined adversarial principles. (86) "For the judge, it is the opinions of the advocate that are relevant, for their speeches illuminate the opposing interests, expose the weak sides of each case, and indicate them to the court." (87)
The broad supervisory powers of the procuracy--and thereby the state--to intervene in the civil process were sharply reduced in the aftermath of the Judicial Reforms. Procurators were limited to providing conclusions in certain types of cases, such as those involving state fiscal matters, zemstvos, and peasant societies. Yet procurators evidently showed little interest in civil law and only provided their opinions sporadically, with no great effect--essentially surrendering this responsibility to sworn attorneys. (88) A 1909 government report noted that in the overwhelming majority of cases "the conclusions of the procurator did not correspond to the demands of the law and in practice were an empty formality, a burden for the procurator and unnecessary for the court." (89)
It must be emphasized that the reduction in the procuracy's role in the civil process did not suddenly mean that the Russian state surrendered its ability to defend its substantial property interests. On the contrary, Russian administrative law remained significantly skewed to the benefit of the state; plaintiffs had to sue specifically named state officials, not the government agency, for material losses. Even if the plaintiff won, the administrative officials on the ruling provincial commissions rallied around their fellow bureaucrats and made it virtually impossible to collect any monetary damages. (90) But administrative cases fell under the domain of public law, where the Russian state always dominated the proceedings. (91) In private law disputes, the state (in the form of the procuracy) essentially withdrew from the civil process, leaving a procedural vacuum filled by the advokatura and--to an unknown degree--by Russia's other assorted licensed and unlicensed civil practitioners.
In 1905, Vinaver speculated that Russia's civil process had played a much more significant role in promoting the rule of law and undermining the regime's legitimacy than was generally believed. He specifically highlighted the "rigorous morals" of the civil court and its reliance on adversarial principles. Vinaver further praised the role of civil lawyers in Russia's legal transformation: "Haven't we directed efforts so that in all spheres of confrontation between the state \vlast'\ and the individual, the state was reduced to the role of a party, arguing, as the accuser or the accused, in an equal, open judicial process? Have not these forms of the aforesaid civil process become the embodiment of the multiple guarantees of freedom of the individual against the unlimited dominion of the administration?" (92)
One can see, therefore, how the bar's practice of civil law pushed certain private law values and practices into the public law realm. The wider the function of the court, Vinaver concluded, and the more adversarial the proceedings, the closer Russia moved toward the "ideal of the law-based state." (93) Measuring this spillover effect is impossible, especially since the evolution of Russian civil law ended so abruptly in 1917. (94) Muromtsev, for one, argued that civil society consisted of those people who participate in the "formation of the civil-legal order," an expansive definition that went beyond voluntary associations and essentially placed civil law at the forefront of nonstate activity. (95) In response, the autocracy clearly sought to contain private law disputes within established legal boundaries, so that emerging civil law principles did not cross over and impinge on the autocracy's absolute powers.
Yet the autocracy was not the only impediment that stood in the way of the broad expansion of civil law values and procedures. Even as an increasing number of Russians pursued their individual claims in court, certain underlying ideological obstacles remained that limited civil law's potential influence on the larger body politic, most notably the fact that in imperial Russia, property rights were not considered an essential civil right. (96) From an Anglo-American perspective, there is no fundamental split between property rights and civil rights; indeed, liberal Western thinkers such as Locke and others have seen the two principles as inextricably linked and inherently political. (97)
Such was not the case in tsarist Russia. Richard Wortman, in his persuasive essay "Property Rights, Populism, and Russian Political Culture," described this division: "In early twentieth-century Russia, property rights and civil rights belonged to antagonistic and irreconcilable political doctrines. On the one hand, the concept of property rights had become attached to the fate of the tsarist state, which disdained and violated all other rights. On the other, the champions of civil rights, with only a few exceptions, lacked a morally viable concept of property that could sustain individual freedom in the new society." (98)
It turns out that the defense of property rights--and by extension its advanced civil law procedures--possessed limited appeal among the intelligentsia, liberals and socialists alike. (99) Russia's major liberal party, the Constitutional Democrats (Kadets), remained highly ambivalent toward the inviolability of property rights--especially as it related to the nobility's landholdings--even as it called for major democratic and constitutional reforms. (100) Pavel Miliukov, the leader of the Kadets, also rejected Stolypin's attempt to expand peasant landownership, instead reserving the right to nationalize the land in pursuit of the party's egalitarian principles. (101)
One should hasten to add that as card-carrying members of the Russian intelligentsia, even sworn attorneys at times chose not to include property rights in their list of enumerated civil rights. Such thinking was most clearly displayed when the bar went beyond strict professional concerns and participated directly in politics. Both the St. Petersburg and Moscow governing bar councils in 1904 called for the introduction of basic civil and political rights--freedom of speech, freedom of the individual, freedom of assembly, and the participation of the people in the freely elected assembly--without directly referring to property rights. (102) The All-Russian Union of Advocates reiterated the above demands in 1905, further declaring that as part of its socioeconomic program, it would seek to defend the workers' interests and liberate them from the "oppressiveness of the present capitalist system." (103)
The bar's public reticence in 1905 on the subject of property rights, however, should not be construed to mean that sworn attorneys opposed the institution of private property. Within the Kadet Party, for example, two of the strongest opponents of mandatory land expropriation--Muromtsev and V. A. Maklakov--were sworn attorneys. (104) Working for a bank, advising a company, writing a will, participating in bankruptcy proceedings, or evicting tenants--all these activities implicated the assertion of a property right. Indeed, between 1878 and the turn of the century, when there were no open political trials and therefore, no forum in which sworn attorneys could publicly defend Russia's neutralized individual and civil rights, public opinion increasingly associated sworn attorneys with their practice of civil law, an association which, as we have seen, did little to lift the public prestige of the advokatura.
Therefore, if not necessarily in theory then at least in practice, the advokatura appears to have been one of the few Russian institutions that in its public capacity endorsed both property rights and civil rights. As this article demonstrates, the practice of civil law remained a rather subdued, solitary affair. In contrast, lawyers used the political trials to collaborate with one another and to advance a much more ambitious rule-of-law agenda. At the 1902 trial of the Saratov workers demonstration, for example, the sworn attorney M. L. Mandel'shtam summarized the basic demands of the defendants: "Freedom of conscience, freedom of the press, assembly, equal rights among estates and all nationalities. Is this really so strange as to be unrealizable? Do you [i.e., the court] yourselves really not subscribe to many of these desires?" (105)
Yet far from increasing the bar's overall standing, this dual defense of property rights and civil rights only contributed to the profession's general sense of isolation. The other major proponents of private property--the autocracy and the landed nobility--not surprisingly objected to the sworn profession's broader commitment to civil rights. Alternatively, while the intelligentsia and Russia's emerging left-wing parties may have praised the work of sworn attorneys at the big political trials, they never embraced the civil process and remained openly hostile to the institution of private property. Kistiakovskii gave a damning appraisal of the intelligentsia's understanding of civil law procedures in Vekhi:
Our publics indifference to the civil courts is astounding. Broad strata of society are totally uninterested in [the civil courts'] organization and activity. Our general press has never studied its significance for the development of our law, nor does it report those decisions of the greatest legal importance. If it mentions civil courts at all, it is only because of sensational trials. Meanwhile, if our intelligentsia were to regulate and control our civil court, which has been put in a relatively independent position, then it might be able to exert enormous influence on the consolidation and development of our legal order. (106)
The advokatura played a major role in promoting the civil court's independence, most notably by overtaking the procuracy as the primary defender of individual rights in the civil process. Yet the essence of civil law--the defense of property interests--remained a political liability in tsarist Russia, in large part because much of the intelligentsia (and the peasantry) never saw private property as a fundamental building block for civil society and the rule of law. Thus while the bar's resolution in 1905 not to include property rights in its enumerated list of civil rights may have appeared, from a tactical standpoint, understandable, this decision nevertheless went against much of what sworn attorneys had done to promote the civil process over the previous 40 years.
The advokatura represented an alternative set of values--corporate independence, social mobility, the rule of law--none of which had deep roots in Russian society. This article demonstrates that as the demand for civil law grew, the bar stepped in and provided legal advice to all sectors of the population, both rich and poor. Sworn attorneys did not monopolize the practice of civil law; on the contrary, they competed with other licensed and unlicensed civil practitioners. Nevertheless, the bar's legal elite clearly played a major role in promoting the civil process--and accompanying property rights--that supported the broader economic and social changes occurring in late imperial Russia.
Such accomplishments, however, failed to dampen the persistent attacks on Russia's civil practitioners for failing to achieve the elevated standards of an advanced legal profession. The very act of defending property rights exposed the bar to strong public criticism, in part because of the intelligentsia's overly idealized picture of the civil process (and the lawyer's role in it), but also because the bar failed to enforce the ethical dividing line between professional and more commercial pursuits.
Therefore, as civil lawyers, sworn attorneys appear to have enjoyed far greater success in the courtroom (and in chambers) than in the court of public opinion. Their mixed record appears consistent with the fragmented legal space in which they operated, where the conflicting factors of weak supply and strong demand were emblematic of a legal system in flux. But while civil law practices and procedures challenged the fundamental tenets of the Russian state--and created a viable legal space where the state essentially was pushed to the sidelines--these private law principles never overcame the autocracy's concentrated powers as set forth under Russian public law. The bar's dual commitment to property rights and civil rights also left the profession with few political or philosophical supporters either on the left or the right. This ideological isolation, in turn, limited the bar's ability to use civil law as a means to press for its ultimate political objective, the law-based state.
Perhaps the high-water mark of the bar's civil law expertise--in terms of its public influence--occurred in the immediate aftermath of the 1905 revolution, when Sergei Muromtsev was named the first Speaker of the Duma. Both as a theorist and as a practitioner, Muromtsev supported a bottom-up approach to the rule of law where legal norms emerged from social interaction and not just at the command of the state. Yet just two years after his appointment as Speaker, Muromtsev found himself not only out of office but in jail, punished for his signing of the Vyborg Manifesto.
Thus the autocracy silenced one of Russia's most respected proponents of grassroots civil law and constitutional reform. The practice of law invariably put sworn attorneys at the forefront in the struggle for the rule of law, yet broad acceptance of the bar's essential public role--intermediary between state and society--was not forthcoming. In their memoirs, several leading sworn attorneys would refer to the advokatura as the "stepson" (pasynok) of the Russian judicial system. (107) Multiple institutional factors contributed to this sense of professional isolation--the delayed introduction of autonomous bar associations, the public perception of Russian lawyers as overly commercial, the bar's large non-Russian membership, and the fact that so few sworn attorneys became judges or otherwise engaged in public service.
Yet as this article demonstrates, the very practice of civil law represented an additional factor in the profession's overall estrangement from Russian society. For the advokatura, the protection of property rights was fully compatible with its defense of civil rights and the rule of law. The autocracy--and the intelligentsia, for that matter--did not share this vision. In particular, the state compartmentalized the law into traditional public and private law functions, in the firm belief that these branches of law would stay in their designated categories and not cross over. Vinaver, Muromtsev, and other sworn attorneys spent their legal careers trying to break this barrier and push private law values and procedures into the public realm. The bar did not fit into any state-assigned box--legal, professional, social, or political--and its perennial outsider status testified to the ideological limits of legal reform and imperial Russia's pursuit of the law-based state.
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(1) Jorg Baberowski, "Law, the Judicial System, and the Legal Profession," in The Cambridge History of Russia, 2: Imperial Russia, 1689-1917, ed. Dominic Lieven (Cambridge: Cambridge University Press, 2006), 363.
(2) N. A. Troitskii, Advokatura v Rossii i politicheskie protsessy, 1866-1904 (Tula: Avtograf, 2000), 48-50.
(3) M. M. Vinaver, "Grazhdanskaia khronika," Vestnik grazhdanskogo prava, no. 4 (1916): 94.
(4) M. M. Vinaver, Ocherki ob advokature (St. Petersburg: M. M. Stasiulevich, 1902), 9.
(5) William G. Wagner, Marriage, Property, and Law in Late Imperial Russia (Oxford: Clarendon, 1994).
(6) Harold J. Berman, "The Rule of Law and the Law-Based State with Special Reference to the Soviet Union," in Toward the "Rule of Law" in Russia: Political and Legal Reform in the Transition Period, ed. Donald D. Barry (Armonk, NY: M. E. Sharpe, 1992), 43-60; Hiroshi Oda, "The Emergence of Pravovoe Gosudarstvo (Rechtsstaat) in Russia, " Review of Central and East European Law 25, 3 (1999): 373-434.
(7) M. M. Vinaver, "Advokatura i pravovoe gosudarstvo," Pravo, no. 13 (1905): 972-90.
(8) Richard Wortman introduced the concept of "a Russian legal consciousness" to characterize the thinking of the leading bureaucrats who drafted the Judicial Reforms of 1864. He specifically highlighted their belief in the law as a "higher calling" and how they sought to increase the judiciary's authority to counter the power of the state. Wortman further used this term to link the prominent judicial reformers of the 1860s with the Russian intelligentsia. Wortman acknowledged, however, that there was more than one legal consciousness in Russia, and that these competing mentalities often worked at cross-purposes. See Richard Wortman, The Development of a Russian Legal Consciousness (Chicago: University of Chicago Press, 1976); Wortman, "Russian Monarchy and the Rule of Law: New Considerations of the Court Reform of 1864," Kritika 6, 1 (2005): 147-48.
(9) Harold Berman emphasizes that one of the great failures of Peter the Great's new public law system was that it lacked a viable private law system that could setde individual disputes among citizens and offset state power (Justice in the U.S.S.R.: An Interpretation of Soviet Law, 2nd ed. [Cambridge, MA: Harvard University Press, 1963], 203-4).
(10) Kathryn Hendley, "'Demand' for Law in Russia--A Mixed Picture," East European Constitutional Review 10, 4 (2001): 12-11.
(11) Richard Wortman argues that it was the need to defend the nobility's private property rights that ultimately convinced the autocracy to introduce the Judicial Reforms of 1864 (The Development of a Russian Legal Consciousness, 255-57).
(12) Wagner, Marriage, Property, and Law, 49. The district court served as the court of first instance for all civil complaints valued at 300 rubles (later increased to 500 rubles). All other civil suits came under the jurisdiction of the justice of the peace courts, unless they were subject to the peasant volost ' courts. For a detailed description of the Russian court system, see Brian Levin-Stankevich, "Cassation, Judicial Interpretation, and the Development of Civil and Criminal Law" (Ph.D diss., State University of New York, Buffalo, 1984), 76-192.
(13) E. N. Tarnovskii, "Statisticheskie svedeniia o deiatel'nosti sudebnykh ustanovlenii, obrazovannykh po Ustavam Imperatora Aleksandra II, za 1868-1912 gody," in Sudebnye ustavy 20 noiabria 1864g. za pint 'desiat let (Petrograd: Senatskaia tipografiia, 1914), 2:342.
(14) For an overview of the commercial courts, see N. A. Pobedonostsev and T. M. Godzevich, eds., "Moskovskii kommercheskii sud": Ocherk istorii moskovskogo kommercheskogo suda 1833-1908 i ego sovremennye deiateli (St. Petersburg: Tovarishchestvo R. Tolike & A. Vil'borg, 1909); Ocherk istorii S.-Peterburgskogo kommercheskogo suda 1833-1909 i ego sovremennye deiateli (St. Petersburg: Tovarishchestvo R. Tolike & A. Vil'borg, 1908); E. D. Pakhol'chik, "Organizatslonno-pravovye protsessal'nye osnovy kommercheskogo pravosudiia v Rossii v XIX veke" (Candidate of Law diss., Moscow State Juridical Academy, 2009).
(15) William Pomeranz, "Legal Assistance in Tsarist Russia: The St. Petersburg Consultation Bureaus," Wisconsin International Law Journal 14, 3 (1996): 586-610.
(16) Ibid., 603-4. For a discussion of peasant civil litigation, see Jane Burbank, Russian Peasants Go to Court: Legal Culture in the Countryside, 1905-1917 (Bloomington: Indiana University Press, 2004), 82-118.
(17) In 1874, to address a shortage of sworn attorneys, the autocracy created a new category of advocate: the private attorney. Unlike sworn attorneys, private attorneys had no education requirements, no independent corporate structures, and were specifically licensed by the state. The creation of the private profession was originally conceived as a temporary measure, but it was not until 1901 that the number of sworn attorneys exceeded the number of private attorneys. A second category of licensed lawyer--the prisiazhnye striapchie--constituted those representatives authorized to practice before the commercial courts. The sworn profession came to dominate the prisiazhnye striapchie, although other individual practitioners were accredited to appear before the court as well. See William Pomeranz, "'Profession or Estate?' The Case of the Russian Pre-Revolutionary Advokatura," Slavonic and East European Review 77, 2 (1999): 257-62; Ocherk istorii S.-Peterburgskogo kommercheskogo suda, 14-15; Pobedonostsev and Godzevich, Moskovskii kommercheskii sud, 10.
(18) William E. Pomeranz, "Justice from Underground: The History of the Underground Advokatura," Russian Review 52, 3 (1993): 321-40; Joan Neuberger, "Shysters or Public Servants? Uncertified Lawyers and Legal Aid for the Poor in Late Imperial Russia," Russian History/Histoire russe 23, 1-4 (1996): 295-310.
(19) I. I. S--va, "O pravozastupnichestvakh v nashem grazhdanskom sudoproizvodstve," Zhurnal Ministerstva iustitsii, no. 2 (1903): 136-51.
(20) Pomeranz, "Profession or Estate," 240-47.
(21) Cathy A. Frierson, "'I Must Always Answer to the Law...' Rules and Responses in the Reformed Volost' Court," Slavonic and East European Review 75, 2 (1997): 308-44.
(22) Pomeranz, "Legal Assistance in Tsarist Russia," 596-97.
(23) M. M. Vinaver, Iz oblasti tsivilistiki (St. Petersburg: A. G. Rozen, 1908), 1-78. Tatiana Borisova, "Russian National Legal Tradition: Svod versus Ulozhenie in Nineteenth-Century Russia," Review of Central and East European Law 33, 3 (2008): 322-23, 334-40; Marc Raeff, Michael Speransky: Statesman of Imperial Russia, 1772-1839 (Westport, CT: Hyperion, 1957), 335; William Benton Whisenhunt, In Search of Legality: Mikhail Speranskii and the Codification of Russian Law (Boulder, CO: East European Monographs, 2001), 90-91; Adriano Silvestri, "The Contrast between Modernization and Tradition: Land Ownership during the Last Decades of the Tsarist Empire," Review of Central and East European Law 19, 1 (1993): 6.
(24) Bogdan Kistiakovskii, "In the Defense of Law," in Landmarks: A Collection of Essays on the Russian Intelligentsia, ed. Boris Shragin and Albert Todd, trans. Marian Schwartz (New York: Karz Howard, 1977), 134. William Wagner argues that Kistiakovskii may have been too negative in his assessment of civil law in Vekhi, particularly when it came to his discussion of the Civil Cassation Department. Wagner recognizes, however, that the civil code itself contained major shortcomings. See William G. Wagner, "Civil Law, Individual Rights, and Judicial Activism in Late Imperial Russia," in Reforming Justice in Russia, 1864-1996: Power, Culture, and the Limits of the Legal Order, ed. Peter H. Solomon, Jr. (Armonk, NY: M. E. Sharpe, 1997), 21-36; and Wagner, Marriage, Property, and Law, 56-57. For an overview of Kistiakovskii's life and legal philosophy, see Susan Heuman, Kistiakovsky: The Struggle for National and Constitutional Rights in the Last Years of Tsarism (Cambridge, MA: Harvard Ukrainian Research Institute, 1998).
(25) L. P. Rastorgoueff, The Legal Position of English Companies in Russia (London: Jordon and Sons, 1911), 2. For an overview of the deficiencies of tsarist corporate law, see Thomas C. Owen, The Corporation under Russian Law, 1800-1917: A Study in Tsarist Economic Policy (New York: Cambridge University Press, 1991), 54-78, 198-219.
(26) V. D. Spasovich, Zastol'nye rechi V. D. Spasovicha: V sobraniiakh sosloviia prisiazhnykh poverennykh okruga S-Peterburgskoi sudebnoi palaty (1873-1901) (Leipzig: E. L. Kasprovich, 1903), 49. The well-known defense attorney N. P. Karabchevskii also referred to the pressure that the Ministry of Justice could apply in major civil cases (Chto glaza moi videli [Berlin: Ol ga Diakova i Ko., 1921], 2:16).
(27) Jane Burbank and Frederick Cooper, Empires in World History: Power and Politics of Difference (Princeton, NJ: Princeton University Press, 2010), 8-11, 271-86.
(28) Wagner, Marriage, Property, and Law, 150.
(29) Ibid., 207-23, 337-77.
(30) Ibid., 40-45.
(31) Owen, The Corporation under Russian Law, 125-27, 155-80.
(32) William E. Pomeranz, "The Emergence and Development of the Russian Advokatura: 1864-1905" (Ph.D. diss., University of London, 1990), 78-80. This prohibition did not apply to attorneys-in-training, so prominent Jewish advocates such as O. O. Gruzenberg and M. M. Vinaver were able to get around the ban by remaining pomoshchniki for 16 and 15 years, respectively (ibid., 84).
(33) Spasovich, Zastol'nye rechi, 4.
(34) Ibid., 68.
(35) Pomeranz, "The Emergence and Development," 137-41; Brian Levin-Stankevich, "The Transfer of Legal Technology and Culture: Law Professionals in Tsarist Russia," in Russia's Missing Middle Class: The Professions in Russian History, ed. Harley D. Balzer (Armonk, NY: M. E. Sharpe, 1996), 241-43.
(36) Wagner, Marriage, Property, and Law, 149-55.
(37) I. V. Gessen, Vdvukh vekakh: Zhiznennyi otchet (Berlin: Speer & Schmidt, 1937), 172.
(38) Pomeranz, "The Emergence and Development," 177-90.
(39) V. R. Leikina-Svirskaia, Intelligentsiia v Rossii vo vtoroi polovine 19-ogo veka (Moscow: MysP, 1971), 90.
(40) P. V. Vsesviatskii, "Organizatsiia soslovnoi vzaimopomoshchi," in Istoriia russkoi advokatury, ed. M. N. Gernet (Moscow: Izdanie sovetov prisiazhnykh poverrenykh, 1914-16), 3:318-425.
(41) Boris L'vovich Gershun, "Vospominaniia advokata," Novyi zhurnal, no. 43 (1955): 135; Marc Wolff, "The Memoirs of Marc Wolff: Russian Lawyer and English Barrister," Yearbook on Socialist Systems (Dobbs Ferry, NY: Transnational Publishers, 1989), 348.
(42) S--, Stolichnaia advokatura (Moscow: O. I. Lashkevich i Ko., 1895), 94-95, 152-53. English companies also sought out sworn attorneys. A. I. Gal'pern, for example, was the legal adviser for several English companies, as well as for the British Embassy. See Bakhmeteff Archive, "Ob'edinenie russkikh advokatov vo Frantsii," box 3 (Gal'pern).
(43) Stolichnaia advokatura, 54.
(44) M. L. Gol'dshtein, Rechi i stat'i (Paris: Rodnik, 1929), 20-21.
(45) Bakhmeteff Archive, "Ob 'edinenie russkikh advokatov vo Frantsii," box 3 (Gershun). See also Oleg Budnitskii and Aleksandr Polian, Russko-evreiskii Berlin, 1920-1941 (Moscow: Novoe literaturnoe obozrenie, 2013), 121-24.
(46) G. B. Sliozberg, Dela minuvshikh dnei: Zapiski russkogo evreia (Paris: Pascal, 1933), 1:205.
(47) O. O. Gruzenberg, Yesterday: Memoirs of a Russian Jewish Lawyer, trans. Don Rawson and Tatiana Tipton (Berkeley: University of California Press, 1981), 42.
(48) M. L. Gol'dshtein, Advokatskieportrety (Paris: Pascal, 1932), 20-21.
(49) V. M. Nechaev noted that Muromtsev was "always inclined to conservatism, a willingness to hold on to the good past," as long as that past did not stunt the emergence of new laws that were "gradually and consequently planting in Russia the basis of a new civil-legal order" (Gosudarstvennyi arkhiv Rossiiskoi Federatsii [GARF] f. 575, op. 1, d. 18,1. 4). See also G. F. Shershenevid\,NaukagrazhdanskogopravavRossii (Kazan, 1893, repr. Moscow: Statut, 2003), 213.
(50) S. A. Muromtsev, Opredelenie i osnovnoe razdelenieprava (Moscow: A. I. Mamontov i Ko., 1879), 121.
(51) Muromtsev argued that the process of creating legal norms was not the exclusive domain of the state but instead involved the interactions of two actors: the life of the people, which created the demand for norms; and an estate of jurists charged with uncovering the means of satisfying society's demand for legal norms (Shershenevich, Nauka grazhdanskogo prava, 218).
(52) D. V. Aronov, Pervyi Spiker: Opyt nauchnoi biografii Sergeia Andreevicha Muromtseva (Moscow: IG Iurist, 2006), 74-76.
(53) Ibid., 77.
(54) Ibid., 80-82.
(55) M. M. Vinaver, Nedavnee (Paris: M. O. Vol'f, 1926), 74.
(56) I. A. Kistiakovskii, "Advokatskaia deiatel'nost'," in Sergei Andreevich Muromtsev: Sbornik statei, ed. K. K. Arsen'ev (Moscow: M. i S. Sabashnikovye, 1911), 152.
(57) Ibid., 149, 152-53.
(58) Vinaver, Nedavnee, 78. Passover was famous for choosing not to write any scholarly or practical articles regarding his legal activities. "My professional position frees me from intellectual pursuits," Gruzenberg quotes Passover as saying. "Why should I take four books that others have written and make from them a fifth one of my own--and a poor one?" Muromtsev's biographer also notes that practically nothing was preserved of Muromtsev's appearances in court, thereby making it difficult to identify specific cases where his legal arguments influenced court decisions (Gruzenberg, Yesterday, 42; Aronov, Pervyi Spiker, 77).
(59) G. B. Sliozberg, "Advokatura za 25 let," Zhurnal grazhdanskogo i ugolovnogo prava, no. 9 (1889): 33.
(60) O. I. Shilokhvost, Russkie tsivilisty: Sredina XVIII-nachalo XX v. (Moscow: Statut, 2005), 140.
(61) The Provisional Government appointed Bliumenfeld to the Civil Cassation Department in March 1917, making him the first Jewish lawyer to sit on Russia's highest civil court. See G. B. Sliozberg, Dela minuvshikh dnei (Paris: Pascal, 1934), 3:358; and Shilokhvost, Russkie tsivilisty, 20.
(62) G. V. Bertgol'dt, "lz zapisok moskovskogo advokata," Sudebnaia letopis', no. 20 (1909): 3. Bertgol'dt also mentions that these reproductions often were filled with mistakes.
(63) As quoted in Gary Rosenshield, Western Law, Russian Justice: Dostoevsky, the Jury Trial, and the Law (Madison: University of Wisconsin Press, 2005), 53.
(64) N. K. Murav'ev was one of prerevolutionary Russia's leading political defenders, and Tolstoi regularly sent him cases involving religious dissenters and peasant disputes. Murav'ev was not a civil lawyer, however, and his attempt to draft a will that met Tolstoi's specific wishes ultimately fell apart after Tolstoi's death, thus earning Murav'ev the opprobrium of historians. See T. A. Ugrimova and A. G. Volkov, Stoi v zavete svoem ... Nikolai Konstantinovich Murav 'ev: Advokat i obshchestvennyi deiatel' (Moscow: AMA-Press, 2004), 26-29; I. V. Varfolomeev, Nikolai Konstantinovich Murav 'ev: Advokat, politik, chelovek (Saratov: Nauka, 2007), 264-78; and A. N. Wilson, Tolstoy (New York : W.W. Norton, 1988), 493-95.
(65) Sudebnoe obozrenie, no. 14 (1904): 300.
(66) Stolichnaia advokatura, 61-63, 121. For a discussion of the dubious and corrupt practices of the pre-1864 striapchie, see Pomeranz, "Justice from Underground," 323-25.
(67) Jane Burbank, "Discipline and Punish in the Moscow Bar Association," Russian Review 54, 1 (1995): 44-64; Pomeranz, "Profession or Estate," 249-50.
(68) G. V. Bertgol'dt, "Iz zapisok moskovskogo advokata," Sudebnaia letopis', no. 17 (1909): 3; M. B. Bolkvadze, Ispoved'advokata (Kiev: Petr Barskii, 1904), 31-33; Stolichnaia advokatura, 161.
(69) V. D. Spasovich, "Ob organizatsii advokatury," Zhurnal ministerstva iustitsii, no. 3 (1896): 8.
(70) "Izmeneniia v ustroistve advokatury," Sudebnaia gazeta, no. 40 (1897): 2. See also "Advokaty i poverennye," Sudebnaia gazeta, no. 11 (1893): 11.
(71) M. G. Grebenshchikov, "Zadacha advokatury," Zhurnal grazhdanskogo i ugolovnogo prava, no. 5 (1886): 3. The Russian legal community conducted a contentious public debate in the 1870s on the role of the advocate in the civil process. This discussion focused on whether an attorney should be able to conduct a defense as long as the demands of the client were legal, or whether an attorney should reject a case where a property right somehow had been acquired immorally. In 1879, Russia's Ruling Senate determined that the civil court does not "aspire to the finding of absolute justice" and concluded that "activities of a lawyer cannot be examined from the standpoint of the principles of individual morality," although this decision failed to end the controversy. I. V. Gessen later cited the above debate as an example of the sworn professions general lack of public support (Istoriia russkoi advokatury, 1864-1914 [Moscow, 1914, repr. Moscow: Iurist, 1997], 1:253-65; Samuel Kucherov, Courts, Lawyers, and Trials under the Last Three Tsars [New York: F. A. Praeger, 1953], 164-66). A similar lack of consensus surrounded the role of the advocate in the criminal process and whether a lawyers overall responsibility was to society or to his individual client. See Pomeranz, "Legal Assistance in Tsarist Russia," 590-91; Kucherov, Courts, Lawyers, and Trials, 197-98.
(72) Grebenshchikov, "Zadacha advokatury," 2.
(73) N. I. Gratsianskii, "Bezuriaditsa v advokature," Iuridicheskaia letopis' (August 1890): 106-7. Statements regarding the excessive greed of Russian attorneys often were tinged with antisemitism. See Benjamin Nathans, Beyond the Pale: The Jewish Encounter with Late Imperial Russia (Berkeley: University of California Press, 2002), 346-61.
(74) E. V. Vas'kovskii, Budushchee russkoi advokatury: K voprosu o predstoiashchei reforme (St. Petersburg: N. K. Martynov, 1893), 4-5.
(75) Ibid., 6.
(76) Pomeranz, "The Emergence and Development," 86-89.
(77) Vysochaishe uchrezhdennaia pri Ministerstve iustitsii Komissiia dlia peresmotra zakonopolozhenii po sudebnoi chasti (St. Petersburg: Tipografiia Pravitel'stvuiushchego Senata, 1897), 172; "Izmeneniia v ustroistve advokatury," Sudebnaia gazeta, no. 44 (1897): 4. The unregulated system of remuneration raised even more serious ethical questions in criminal cases, where sworn attorneys were accused of setting fees based on the outcome of a case (Vysochaishe uchrezhdennaia, 171-72; "O gonorare," Sudebnaia gazeta, no. 13 : 2-3).
(78) Dokladypo voprosu o sovmeshchenii zvaniia prisiazhnogo poverennogo s drugimi dolzhnostiami i zaniatiiami (Moscow: A. I. Mamontov & Ko., 1888), 4.
(79) The bar wrestled with the question of what activities were compatible with the legal profession right up to the end of its existence. See "Advokatura dlia advokatov," Vestnik prava, no. 19 (1913): 584-86; "O sovmestitel'stve v advokature," Vestnik prava, no. 40 (1916): 594-98.
(80) "Otchet soveta prisiazhnykh poverennykh," Sudebnaia gazeta, no. 18 (1902): 7.
(81) Gessen, Istoriia russkoi advokatury, 296-303.
(82) Kistiakovskii, "In the Defense of Law," 136.
(83) Kronid Malyshev, Kurs obshchego grazhdanskogo prava Rossii (St. Petersburg: M. Stasiulevich, 1878), 6; I. A. Pokrovskii, Osnovnye problemy grazhdanskogo prava (Moscow, 1917; repr. Moscow: Statut, 2013), 41.
(84) E. V. Vas'kovskii, Uchebnik grazhdanskogo protsessa (Moscow: Brat'ia Bashmakovye, 1914), 117.
(85) S. M. Kazantsev, Istoriia tsarskoi prokuratury (St. Petersburg: Izdatel'stvo Sankt-Peterburgskogo universiteta, 1993), 196.
(86) Ibid. See also Sergei Antonov, "Law and the Culture of Debt in Moscow on the Eve of the Great Reforms, 1850-1870" (Ph.D. diss., Columbia University, 2011), 369.
(87) Kazantsev, Istoriia tsarskoi prokuratury, 197.
(88) Sergei Kazantsev, "The Judicial Reform of 1864 and the Procuracy in Russia," in Reforming Justice in Russia, 1864-1996, 58.
(89) Kazantsev, Istoriia tsarskoi prokuratury, 207.
(90) Wortman, "Russian Monarchy and the Rule of Law," 154; E. A. Pravilova, Zakonnost' i prava lichnosti: Administrativnaia iustitsiia (St. Petersburg: SZAGS, 2000), 55-63; Vinaver, Iz oblasti tsivilistiki, 240-52.
(91) For a review of administrative justice and the Senate's discretionary supervisory (nadzor) powers, see Natasha Assa, "How Arbitrary Was Tsarist Administrative Justice? The Case of the Zemstvos' Petitions to the Imperial Ruling Senate, 1866-1916," Law and History Review 24, 1 (2006): 1-43.
(92) Vinaver, Iz oblasti tsivilistiki, 335-36.
(93) Ibid., 337.
(94) William Wagner discusses the broader political ramifications of civil law in "The Trojan Mare: Women's Rights and Civil Rights in Late Imperial Russia," in Civil Rights in Imperial Russia, ed. Olga Crisp and Linda Edmondson (Oxford: Clarendon, 1989), 78-84.
(95) Sergei Muromtsev, Iz lektsii po russkomy grazhdanskomu pravu (St. Petersburg: Sovet Imperatorskogo aleksandrovskogo litseia, 1899), 8.
(96) See Ekaterina Pravilovas provocative new study on the evolution of public property rights (A Public Empire: Property and the Quest for the Common Good in Imperial Russia [Princeton, NJ: Princeton University Press, 2014]).
(97) For an in-depth comparative analysis of the role of property rights in English and Russian history, see Richard Pipes, Property and Freedom (New York: Knopf, 1999).
(98) Richard Wortman, "Property Rights, Populism, and Russian Political Culture," in Civil Rights in Imperial Russia, 32.
(99) Ibid., 22-32.
(100) The Kadet party platform included an explicit plank calling for the expropriation of private land at equitable (not market) prices to be redistributed to peasants. The Kadets did not explicitly include property rights in their list of fundamental civil rights, although the party platform did demand that estate and other property limitations on Poles, Jews, and other groups be removed. See "Programma Konstitutsionno-Demokraticheskoi Partii," in Rossiiskie liberaly: Kadety i oktiabristy. Sbornik, ed. D. B. Pavlov and V. V. Shelokhaev (Moscow: Rosspen, 1996), 51-58; Ingeborg Fleischhauer, "The Agrarian Program of the Russian Constitutional Democrats," Cahiers du monde russe et sovietique 20, 2 (1979): 4-5; William Rosenberg, Liberals in the Russian Revolution: The Constitutional Democratic Party, 1917-1921 (Princeton, NJ: Princeton University Press, 1974), 17-19; and Stephen F. Williams, Liberal Reform in an Illiberal Regime: The Creation of Private Property in Russia, 1906-15 (Stanford, CA: Hoover Institution Press, 2006), 128-36.
(101) Wortman, "Property Rights," 30.
(102) Otchet Soveta prisiazhnykh poverennykh pri S.-Peterburgskoi sudebnoi palate za 1905-6, 13-16; Otchet Soveta prisiazhnykh poverennykh okruga Moskovskoi sudebnoi palaty za 1904-5, 29-35. The St. Petersburg bar's foray into politics in 1904-5 was led by the so-called young advocates, a new generation of more politically active sworn attorneys. The bar's established leadership was much more reluctant to engage in politics, and as 1905 progressed, the St. Petersburg bar retreated to making public statements only in the context of addressing specific professional issues (Pomeranz, "The Emergence and Development," 294-308).
(103) GARFf. 518, d. 28.11. 1-4.
(104) Judith Zimmerman, "The Kadets and the Duma, 1905-7," in Essays on Russian Liberalism, ed. Charles E. Timberlake (Columbia: University of Missouri Press, 1972), 119.
(105) Troitskii, Advokatura v Rossii, 346.
(106) Kistiakovskii, "In the Defense of Law," 134.
(107) Gessen, V dvukh vekakh, 172; Ugrimova and Volkov, Stoi v zavete svoem ..., 101.
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