Serving the law

Any society sooner or later grapples with the problem of judicial power, an indicator, among other things, of the development of a state ruled by law. At different times this power could belong to a monarch, who used it to strengthen his supreme authority, be subject to outside control and answerable to the executive power, or, on the contrary, break away and assume self-sufficiency. These stages of development were designed by historians and philosophers, who offered their ideas to society with the noble aim of improving the judicial power, so that it could promote fairer social relations. Among them were Thomas Hobbes, Charles Louis Montesquieu, Mikhail Speransky, Max Weber, and Karl Popper.

In many ways the current judicial system resembles the one that juridical officials proposed in 1864 to society, including that of Ukraine, by convincing the Russian emperor of the urgent necessity to reform the old court. Historians still think that the judicial reform was the most democratic of the Great Reforms of the 1860s. It would be naive to give all the credit to Alexander II alone, although it is equally wrong to deny the emperor’s personal influence on the viability of this reform. The most important point is that he rejected Peter I’s concept of a police state, which involves coercive policies and practices.

Many of the judicial reform drafts, which experts and the public were discussing at the time, showed the same problems of the judicial power that we have now, for example, legal guarantees for a market economy, ownership rights of the state and the individual, and strengthening of the political order.

What element of the mid-19th-century court system did not suit contemporaries, including professional lawyers? Introduced by Catherine II in 1775, the system was based on German standards and the European tradition of an estate- based division of society, in which each estate had its own courts with two levels - higher and lower. The nobility was granted the right to refer housing and property problems to superior and lower zemstvo courts (earlier, they had to turn to administrative bodies in such cases). The middle classes were supposed to bring their lawsuits to municipal and provincial magistrates, and town halls. Free peasants used the services of higher and lower rasprava (courts presided over by justices of the peace), while serfs were at the mercy of landlord’s courts.

No matter how hard the empress tried to separate administrative and judicial functions (not surprisingly, Montesquieu’s L’Esprit des lois (“The Spirit of Laws”) was her coffee-table book), she failed. Judicial and administrative powers remained merged even on the lowest level. Every district had a lower zemstvo court composed of an ispravnik (county police chief) and two assessors elected by nobles, which oversaw public order and tackled land- boundary disputes and other minor cases. At the end of this rather complex base network stood state-run all-estate criminal and civil judicial chambers subordinated to the Senate, the highest appellate instance, and, finally, the emperor. Court officials were partly elected, particularly by the corporation of nobles, and partly state-appointed, but in either case they were not professionals. Supervision of justice, which also included influencing verdicts, was exercised by the executive power in the persons of governors and chief representatives of the crown. Requirements for judges were not so stringent, though: all they had to do was enforce the laws made by the monarch.

Those who occupied the posts of judges were, as a rule, ex-military servicemen who did know the law, took no interest in justice, and had no judicial experience. They considered it their duty to follow the supreme authorities’ instructions and were inclined to regard laws as orders from the supreme command, which naturally did not require any professional knowledge.

To prevent judges from flouting the legislative norm, there was written inquisition-type justice based on formal evidence. Admission of guilt was considered the ultimo ratio, for which torture was allowed. The parties to a trial only dealt with the court secretary, who alone knew the laws, rules, forms, and paperwork procedures in order to resolve the case in a desired manner. His duty was, in fact, to mechanistically quote the laws from his own reference notebook. According to contemporaries, it did not take a secretary too much effort to “adjust” the laws to the demands of rich or influential individuals.

This led to slow trials, incompetence, corruption, nepotism, delays, and pettifoggery, and as a result the judicial power enjoyed no prestige in society. Likewise, the level of citizens’ knowledge of the law was also very low because everything depended on personal and family connections, and the protection of high officials in St. Petersburg and the emperor himself.

The judicial system began to be revised in the atmosphere of the humiliating defeat in the Crimean (Eastern) War of 1853-56, which also triggered other major reforms. The initiative belonged to professional lawyers whose number was growing with every passing year. Educated at Russian university law schools, they were gradually upstaging lay judges. They also differed from their predecessors by social origin and occupation: they were middle-income nobles, who did not consider military service as the most perfect career and in their milieu began to cultivate service to the law as the highest moral vocation. Young jurists displayed hitherto unusual adherence to the law on the basis of the philosophy of law, and knowledge of jurisprudence and legal practice, and introduced the idea of professional honor into Russian justice.

This attitude appealed to the post-reform nobility, which badly needed a new type of court capable of defending property rights that were weakened after they lost power following the abolition of serfdom. Under pressure from both parties, Alexander II did not oppose reforming the court on Western European principles of justice. The crucial point was to create an independent court that would be respected by citizens and which would have its own levers of influence.

The principles on which the new court rested differed radically from those before the reform. They were borrowed from foreign sources, for which one of the judicial reform champions, S. I. Zarudny, a descendant of an ancient Ukrainian noble family and graduate of Kharkiv University, had studied judicial institutions abroad and published the procedural codes of Sardinia, Piedmont, and Hungary, as well as articles on the English court system. Of greatest importance was the Hanover Statute of Civil Judicature established in the late 1840s.

The judicial reform resulted in the creation of an independent court within the limits of the autocratic system of power. Authoritarian control over the judicial procedure gave way to the institution of civil justice: in other words, the monarch was to hand over supervision of justice to experts. The reform proclaimed the equality of all citizens before the law, irrespective of estate, and the adversarial nature, openness, and public nature of trials were introduced. What guaranteed the court’s independence from the executive power was non- replacement of judges. Professional judges were to occupy their office for life: this was a reliable protective mechanism guaranteeing that they would retain their job even if they passed a ruling that ran counter to the opinion of the authorities.

The police, until now answerable to governors and governor-generals, were barred from investigating. From then on, this task was entrusted to special investigators under the jurisdiction of courts and the supervision of regional public prosecutors. An institution of court executive officers was introduced to execute court rulings.

The next important component of the judicial reform was the introduction of the institution of jurors, which allowed the public to take part in making court decisions and in fact helped educate it in a spirit of respect for the law and for justice. Bringing in a verdict of guilty or not guilty, jury members were above all supposed to take into account the human factor. Unlike central government-appointed court officials, jurors were appointed by such local bodies as zemstvo and city administrations. This was a corps of 36 jurors representing all social estates. Every trial was to be held in the presence of 12 jurors. The public’s participation in hearings helped increase the court’s social prestige, although adversaries of this system of representation abusively called it a “mob court.”

(To be continued)