Russian Lawyers and the Soviet State: The Origins and Development of the Soviet Bar, 1917-1939
262
Russian Lawyers and the Soviet State: The Origins and Development of the Soviet Bar, 1917-1939
262Paperback
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Originally published in 1986.
The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.
Product Details
| ISBN-13: | 9780691611068 |
|---|---|
| Publisher: | Princeton University Press |
| Publication date: | 07/14/2014 |
| Series: | Princeton Legacy Library , #107 |
| Pages: | 262 |
| Product dimensions: | 6.10(w) x 9.00(h) x 0.70(d) |
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Russian Lawyers and the Soviet State
The Origins and Development of the Soviet Bar, 1917-1939
By Eugene Huskey
PRINCETON UNIVERSITY PRESS
Copyright © 1986 Princeton University PressAll rights reserved.
ISBN: 978-0-691-07706-2
CHAPTER 1
THE EMERGENCE OF A RUSSIAN LEGAL PROFESSION
On the eve of the revolutions of 1917 the legal profession was the product of two distinct currents in Russian legal history, liberal and autocratic. The origins of the profession lay in the autocratic tradition, which dominated legal practice from the first appearance of lawyers in Russian courts in the fifteenth century until the Judicial Reform of 1864. During this period, the functions of legal representatives were narrowly circumscribed. In criminal cases, for example, judges reached their decisions in camera and based them exclusively on a written synopsis of the investigation. Unable to participate directly in court proceedings, the legal representative was restricted to drafting petitions and appeals on behalf of the accused.
Under the autocratic tradition the organizational development of the legal profession was retarded by the state's refusal to allow the formation of a guild or estate of lawyers. Throughout the pre-Reform period legal representatives were an amorphous group without professional training, organization, or identity. Legal practice was carried on largely by minor state officials in their spare time or in retirement. Familiar with the niceties of bureaucratic language and procedure and occupying relatively unobtrusive positions in the state machinery, the petits functionnaires-cum-lawyers were a natural, though poor, substitute for a mature legal profession.
The Judicial Reform of 1864 — the embodiment of the liberal tradition in law — attempted to make a decisive break with past policies on the legal profession. The Reform, which sought to introduce elements of a Western-style legal order in Russia, laid the legislative bases for the creation of a competent and self-regulating body of lawyers who would enjoy extensive rights in legal proceedings. But the creation of an estate of lawyers and the redefinition of the lawyer's role in the legal system did not proceed as planned in Reform legislation. The liberal tradition was not sufficiently well-established in Russia to ensure the full implementation of the ambitious program of legal reforms that it had inspired. Defenders of the autocratic tradition, who had been outmaneuvered during the preparation of the Judicial Reform, were strongly represented in government institutions responsible for carrying out the Reform. In many cases they were able to thwart the intent of the liberal reformers by selective implementation of Reform legislation and by the adoption of new laws that did not accord with the principles laid down in the Judicial Reform. Over the last half-century of tsarist rule this tension between liberal and autocratic currents produced a hybrid legal profession that reflected both Western and traditional Russian influences.
The impact of the liberal and autocratic traditions on the prerevolutionary legal profession is clearly evident in the division of lawyers into two distinct branches: the Bar, comprised of sworn advocates (prisiazhnye poverennye), and the profession of private advocates (chastnye poverennye). From the Judicial Reform of 1864 until the Bolshevik Revolution of 1917 the sworn advocates played the leading role in the Russian legal profession. Created in the image of the Western European professions, the sworn advocates were drawn from the educated and social elite of Russia. For the first time the legal profession became an accepted vocation for the Russian upper classes. The formal requirements for membership in the Bar were very high indeed, especially given the relative backwardness of Russia in this period. Prerequisites for membership included completion of a university-level law course and at least five years of work in a responsible post in the legal system.
Professional associations of sworn advocates existed on the regional level in a loose affiliation with the regional courts, known as palaces of justice (sudebnye palaty). By the end of the tsarist period a governing council and general meeting of sworn advocates were operating in each of the fourteen court regions of the Russian Empire. The governing council was responsible for accepting new members into the profession, hearing disciplinary cases, and reaching decisions on other matters of common interest to sworn advocates. The general meeting, which was an assembly of the profession's rank and file, reviewed the activities of the governing council and at regular intervals elected council members. Although palaces of justice in exceptional cases overturned the decisions of governing councils, the Bar was essentially a self-governing profession.
Included in the Bar was a sizable body of advocates-in-training (pomoshchniki prisiazhnykh poverennykh). These university-trained apprentices officially spent five years under the patronage of sworn advocates before becoming eligible to apply for full membership in the profession. Once registered with a patron, however, many advocates-in-training practiced on their own during the apprenticeship period. Approximately two-thirds of new sworn advocates were drawn from the advocates-in-training, with the remainder coming from the bench, the Ministry of Justice, and other state institutions.
The private advocates stood in stark contrast to the Western-style Bar. The private profession, created in 1874, attracted its members from the traditional sources that had supplied legal representatives in the pre-Reform period. Indeed, the first generation of private advocates was composed largely of traditional legal representatives who had continued to practice after the Judicial Reform of 1864. Bringing the traditional legal representatives under government regulation was designed ostensibly to raise their standard of legal practice, though a more important factor in the decision may have been the government's desire to provide a counterweight to the politically conscious Bar.
Unlike the sworn advocates, who could practice in any court in the Russian Empire, the private advocates were restricted to appearing in courts with which they were certified. Each court had its own certification procedure, which in some cases involved a written examination. But there were no formal educational or apprenticeship requirements for the private profession, and it was common for courts to admit private advocates with little or no qualifications for legal practice. In general, the state expected little from the private profession. Private advocates, for example, were not obligated, as were the sworn advocates, to accept court-appointed cases.
Legislation governing the private advocates ensured that they remained, in the tradition of the pre-Reform legal representatives, a fragmented group with no professional identity. The complete absence of professional associations of private advocates, together with the immobility imposed on private advocates by the court certification system, kept professional contacts to a minimum. All questions concerning the private profession, including membership and disciplinary matters, were decided in the first instance by individual courts. Broader supervision was exercised by the Ministry of Justice.
In spite of the deep structural divisions within the prerevolutionary legal profession, the functions of advocates varied little from one branch to the next. Most advocates divided their work between litigation, legal counseling, and the drafting of legal documents, though prominent sworn advocates did tend to spend more of their time in court. Litigation was regarded as the essence of legal practice, and advocates competed fiercely for their share of court cases. The less successful advocates had to fall back on inheritance cases and the commercial side of legal practice.
In prerevolutionary Russia most advocates practiced individually, though it was not uncommon for a successful sworn advocate to engage several apprentices to work in his chambers. While private law firms were virtually unknown, collective legal practice on a small scale did develop, especially from the 1890s onwards, in the form of legal consultation bureaus (iuridicheskie konsul'tatsii). These bureaus were often created to serve particular segments of the community, such as the working class, and charged moderate fees, if any at all.
Except in court-appointed cases, when remuneration was given from a common fund, the fees paid to advocates were based on private arrangement with the client. Shortly after the Judicial Reform of 1864, a fee schedule was published by the Ministry of Justice, but it was not binding. It served as a guideline for charges and was applied if a dispute arose between advocate and client. According to one source, virtually all fees privately agreed upon were in the general range of the fee schedule.
The effectiveness of professional legal representation was significantly enhanced after 1864 by procedural changes that were at the heart of the Judicial Reform. Western-style rules of procedure emphasizing oral advocacy and publicity (publichnost') were introduced into the newly created general courts, which existed at the district (okruzhnoi) level and above. In criminal cases within the jurisdiction of these courts, the advocates, though denied access to the preliminary investigation, enjoyed full procedural rights at trial and on appeal. For the first time in Russian history advocates were able to argue before a jury in open court. They were also allowed to consult with an accused person under detention in the period before trial, and in at least one court region the governing council of sworn advocates instructed its members to make use of this right in all cases. Moreover, Reform legislation gave criminal defendants the right to privileged communication with counsel.
The impact of the procedural changes was limited, however. First, although criminal defendants had a right to be represented by legal counsel in all general courts, the scarcity of advocates in many areas frequently left the accused without professional representation. Court practice held that denial of counsel did not in itself constitute grounds for appeal. More importantly, especially after 1889, the liberalization of procedure did not extend to cases heard before the local courts, which resolved the majority of criminal and civil disputes in the last half-century of tsarist rule. Figures from 1910 and 1913 indicate that of the approximately two-and-a-half million criminal cases heard by Russian courts annually (an extraordinary statistic in itself given an adult population of well under 150 million), only 120,000, or about 5 percent, of the cases were heard by the general courts. All but the most serious cases went before local tribunals, which operated without a jury and without the extensive procedural safeguards found in the general courts. Thus, although the old system of class courts was dismantled by the Judicial Reform of 1864, a division between the liberal and autocratic traditions in court procedure remained.
Although the number of advocates in Russia grew at an unprecedented rate in the 1864 to 1917 period, the legal profession was never large enough to satisfy the needs of the population. In 1897 there was one advocate for every 29,800 people. By 1910 the ratio had improved dramatically, to one for every 17,900. However, Russia still lagged well behind the more developed countries of Europe, such as England, which at this time had one lawyer for every 1,684 people.
Another striking characteristic of the prerevolutionary legal profession was its uneven distribution over the empire. A distinct East-West split existed, with the Polish and Ukrainian areas disproportionately well-supplied with advocates. The most neglected regions were central Russia (excluding Moscow), Western Siberia, and Central Asia. Figures from selected court regions show the disparity.
A wide differential in the distribution of advocates also existed along urban-rural lines. To take the most extreme case, in the city of Moscow there was one advocate for every 1,600 persons, whereas in the outlying areas of the Moscow court region — a vast territory covering much of North Central Russia — there was one advocate for every 55,000 people. To be sure, urban advocates, and particularly those in the Bar, on occasion accepted cases from the more remote areas. Nevertheless, much of the demand in outlying areas for legal advice and for representation in local courts remained unsatisfied by the private and sworn advocates.
In areas where existing legal services were inadequate the gap was often filled by persons practicing law without a certificate, the so-called underground advocates (podpol'nye advokaty). The evidence suggests that underground practice was most common in the countryside, where it was likely to be a part-time pursuit of individuals whose sole qualification was their literacy. Underground advocates practiced under constant criticism from the sworn advocates, who decried their lack of professional standards, and from the government, which accused them of inciting the peasants to engage in unnecessary litigation. But the only serious attempt to eliminate underground practice was launched in 1912, and it appeared to have had little impact. Underground legal practice was one of the many intractable problems carried over to the Soviet period.
The private and sworn advocates at first competed on the same geographical terrain, but as the Bar grew in size it gradually displaced the private profession from the major court centers of the country. By the end of the tsarist period each branch had a distinct geographical orientation, with the Bar clustered in the larger cities and the private profession dispersed throughout the provinces. In 1914 the four most important judicial centers of the empire — Moscow, Petrograd, Warsaw, and Kiev — contained exactly half of all sworn advocates but only 11.2 percent of private advocates. The greatest concentration of private advocates was in the smaller provincial towns, where 51.5 percent of the private profession practiced. The Bar was represented in these areas by only 6.2 percent of its members. This geographical distribution of advocates indicates that the Bar dominated practice in the regional and national courts while the private profession played the more important role in the local courts. It was only at the district court level, where the two branches were almost evenly represented, that the private and sworn advocates seemed to have been in serious competition.
Membership figures on the legal profession show that the steady rise in the number of sworn advocates in the prerevolutionary period occurred at the expense of the private advocates. Although the private profession, having coopted an existing body of legal representatives, maintained numerical superiority over the Bar until the turn of the century, the total number of private advocates began to decline well before that date. The shift in numerical strength of the private and sworn branches of the legal profession is illustrated in the accompanying tables.
By the end of the tsarist period the private profession seemed on the verge of dying a natural death. But the Bolshevik Revolution interrupted this process. When the Soviet regime began to establish its own legal profession, it brought in considerable numbers of private advocates, especially in the provinces, on an equal footing with the members of the sworn profession. For the traditionally apolitical private advocates, the creation of the Soviet legal order signified a new beginning as full-fledged members of the legal profession. Because of this the former private advocates constituted a section of the legal profession that was especially malleable to the policies of the Soviet state.
The sworn advocates, on the other hand, were a much more difficult legacy for the Bolsheviks. Unlike the politically inert private profession, the Bar was a socially conscious group of advocates with distinct political loyalties. The mainstream of the profession was firmly committed to the principles of Western liberal democracy. Furthermore, the sworn advocates were jealous defenders of their own institutional interests. Over the period from 1864 to 1917, in spite of persistent attempts by the government to check the development of the legal profession as an intermediary institution in Russian society, the sworn advocates succeeded in establishing and strengthening their professional organizations in all areas of the country. Through these professional institutions the sworn advocates were able to develop traditions of independence from external control, solidarity in the face of attacks from the state, and, especially after 1900, democratic self-government.
(Continues...)
Excerpted from Russian Lawyers and the Soviet State by Eugene Huskey. Copyright © 1986 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
- FrontMatter, pg. i
- Contents, pg. vii
- List of Tables, pg. ix
- Preface, pg. xi
- Introduction, pg. 3
- Chapter One. The Emergence of a Russian Legal Profession, pg. 11
- Chapter Two. The Bar in Decline: The Russian Lawyer in Revolution and Civil War, 1917-1921, pg. 34
- Chapter Three. The Bar Restored, 1922-1927, pg. 80
- Chapter Four. The Bar under Siege, 1928-1932, pg. 143
- Chapter Five. The Bar and the Triumph of Stalinism, 1933-1939, pg. 180
- Chapter Six. Conclusion: The Bar and the Transformation of Soviet Professions, pg. 223
- Glossary of Russian Terms, pg. 229
- Bibliography, pg. 233
- Index, pg. 243