A revolution in law?

Date: 1 September 2017, 01:30–03:30

Venue: Corvinus University, Fővám tér 8, room 391



Did the Russian revolution constitute a break with imperial law? The papers proposed take up this question with studies of law-making, legal procedure, and the provision of legal services during the last years of the Russian empire, the short-lived provisional regime of 1917, and the early years of Soviet power. The papers counter the conventional representation of both tsarist and Soviet empires as lawless, and instead open a window on strong elements of a "Russian" legal tradition, many of which carried over into the early Soviet period and into the reconstructed multi-ethnic polity. Many of the prominent leaders of both 1917 revolutions -- liberals, socialists, and Bolsheviks -- were trained in law. When the revolution of February 1917 brought down the Romanov monarchy, activists who moved into the "provisional government" immediately embarked on both ruling through law and remaking it. Eight months later, the Bolshevik seizure of power gave the new Communist leaders a chance to break with the legal structures of the past. The second revolutionary government, too, rapidly issued its own laws and put in place legal structures. For liberals, the rule of law had been a goal; for Bolsheviks, it had been a target of criticism. But after both revolutions, Russian law came back. Our explorations identify the long-term elements of a Russian legal tradition that underlay this return to law. A structuring factor was the imperial dimension of Russian rule and Russian law. The empire had produced a flexible, pluralistic system of courts that accommodated the diversity of peoples of the Romanovs' immense realm. Another strong and influential characteristic of the pre-revolutionary legal system was procedural: large numbers of judicial and administrative personnel enforced the practices of formal legal regulation and record-keeping. As post-revolutionary leaders took up the challenge of ruling a culturally diverse polity, they transformed, but did not destroy, the diverse lower-level courts. The panel explicitly addresses the practices of such instances in Kazakhstan as well as in central -- more "Russian" -- regions. The new judges and other administrators adhered to many of the earlier forms of communicating legal information. But if some structures and forms of legal rule had become a habit and entered seamlessly into post 1917 tradition, the law remained an area for changing or attempting to change the rules by which people were supposed to live. Our papers consider the areas in which the revolutionary governments tried to use the law as an active constructor of values. The long-term legal tradition had established expectations among law users, and these could both affirm or undermine the precarious process of re-founding the empire on new principles. The panelists draw attention to how the legal tradition both offered advantages to and set constraints on the formation of a multi-national communist state, whose techniques would became critical to global history for the rest of the twentieth century and beyond.


Jane Burbank (New York University)


Alessandro Stanziani (School for Advanced Studies in the Social Sciences EHESS)


Michel Tissier (University of Rennes 2)


Tatiana Borisova (National Research University Higher School of Economics St. Petersburg)
Jane Burbank (New York University)
Aaron Retish (Wayne State University Detroit)


Tatiana Borisova: The legalism of Russian revolutionaries: A continuity in the Russian legal tradition

My paper will explore the legislative politics of the revolutionary regimes in Russia in 1917-1918. The revolutionary regimes of both the Provisional government and Council of People's Commissars appeared to be quite legalistic in the sense that they enthusiastically drafted new laws, trying (a) to mobilize people to support revolutionaries and (b) to legitimate the new rule by legislative means. This shows that the form of legislation was held in high regard and that they tried to base their legitimacy on ‘legal order’. At the same time, revolutionary law could take various forms: some legislative acts resembled former ‘bureaucratic’ legislation that the revolutionaries had previously criticized so sharply, whereas others were nothing more than revolutionary declarations. This typology of law-making was not unique for Russia and was common for other revolutionary legislators of the past. What is striking in the Russian case is the obsession with legal techniques: the focus on correct publication of new legislation and on control over its dissemination over the country. How one can explain this overwhelming legalism in the situation of civil war and terror? In light of Karl Schmitt’s controversial theory of sovereignty, law-making is an important dimension of sovereign power, since it is related to the sovereign’s essential prerogative to create a situation, control it, and make its development predictable. Law establishes predictability, thus legal order is an essential part of sovereign rule. The revolutionary governments in Russia often used decrees to confirm retrospectively the legality of something that had been done in the course of the Revolution. In general, their laws served the goal of justifying formally their rule -- by establishing their authority in written word. However, a major element in Schmitt’s understanding of sovereignty and law is that the sovereign is not bound by his own law. The overwhelming legalism of Russian revolutions exposed an important long term trajectory of Russian legal order: law-making and changing the laws is a domain of sovereign power. Continuity of bureaucratic law-making in 1917-18 was a part of pre-revolutionary tradition of undemocratic procedures of law-making by the sovereign and his delegates.

Jane Burbank: Demand for law: Why communism had to have courts

This paper explores the impact of the imperial court system on political imagination in the Russian empire and the early years of Soviet power. For the imperial ruler, the provision of justice entailed offering the multiple and diverse peoples of the realm legal institutions for the resolution of conflicts and the punishment of crime. By the beginning of the twentieth century, the township courts and other low-level instances were the site where huge and growing numbers of judicial cases were decided. The system was diversified in multiple ways, including provisions for family law according to religion. This extensive, flexible, and fast-functioning system of courts produced subjects adept at using the law. In 1917, these subjects turned into citizens who demanded legal services. I also address the political imaginary of the people who expected to rule the new state after the fall of the Romanov dynasty. Both liberals and communists were legal activists, who tried to find new formulas to constitute power. Both responded to the multi-ethnic composition of the polity with proposals for federalism. In the Bolshevik case, this kind of state reconstruction meant that communism took the shape of a multi-ethnic differentiated polity, not a unified republic. My paper also examines an area of contestation about law, in which Lenin's initial theoretical position was sharply challenged and ultimately transformed. The Bolsheviks' turn to law responded to the widespread assumption that rulers should provide accessible legal instances and regulations to their citizens. The very people that many intellectuals considered to be hostile to state power expressed both in letters and in court practices their demand upon the new rulers to re-institute courts and legal procedures.

Aaron B. Retish: Revolutionary courts as a stabilizing force? People’s courts in the early Soviet years

This paper examines local people’s courts (the courts of first review) as an institution of Soviet power. I focus on the court administration and personnel and how their use of court procedure and legal decrees evolved over the first twelve years of Soviet rule. Studying the early Soviet local courts across European Russia and what would become the Kazakh SSSR reveals the importance that officials placed on a shared public legal arena. For Soviet leaders in the center, courts were places to assert state authority and build socialist values. For local judicial officials, courts were a place to maintain the local social fabric. Law and the courts became tools used by both the state and citizens to engage in a paradoxical situation—to overthrow the existing social system while maintaining order and stability. This paper draws on court records from local archives in the Russian Federation and the Central and Presidential archives of Kazakhstan and the Regional Archive

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