Читать книгу The Reformer - Stephen F. Williams - Страница 10
Оглавление“The only way to avert a revolution is to make one.”
ANTOINE PIERRE BERRYER
IN OCTOBER 1905 Tsar Nicholas II issued the October Manifesto, opening the door for the first time in Russia’s history to real-world political advocacy—advocacy that could affect the election of legislators, who in turn could pass laws controlling government action. This book is an account of the efforts of Vasily Maklakov, a lawyer, legislator, and public intellectual who used this opportunity to advance the rule of law in Russia. Though his efforts were clearly not enough to prevent the Bolshevik Revolution in October 1917,* they illuminate the kind of challenge that reformers face today in authoritarian regimes around the globe.
In the October Manifesto the tsar promised to allow freedom of conscience, speech, and assembly and to establish an elected legislature. He also took a pledge to the rule of law. Under the manifesto, a law could take effect only with the consent of the legislature, rather than merely by decree of the autocrat, as before. And compliance with law would be an essential condition for valid executive action. If fully implemented, the manifesto would have created a government of laws.
As a trial lawyer, Maklakov regularly observed the practical qualities and defects of the rule of law in early twentieth-century Russia. He was renowned for being able to sway juries and judges with calm conversational logic. As a legislator he used his analytic and forensic skills to press for reform of Russia and reduce the risk of revolution, advocating, for example, a practical integration of peasants into Russian society and an end to religious and ethnic discrimination. He wrote for newspapers and intellectual journals on vital issues of the day. He appeared to move with ease between technical legal issues and the more philosophical questions of how law might enable the creation of a free society. His arguments delineate a Russia that might have been—a Russia struggling with corners of backwardness, to be sure, but liberal, open, welcoming previously unheard voices, and developing institutions that could channel conflict into lawful paths.
As participant and observer, actor and critic, Maklakov is an inviting lens through which to view the last years of tsarism. Born in May 1869, he received a degree in history before getting one in law. He was on the political stage from shortly before the October Manifesto until the Bolsheviks took power in 1917. Named ambassador to France by the Russian Provisional Government, he set off for Paris on October 12, but was unable to present his credentials before the provisional government fell. Although active thereafter as the effective dean of the Russian émigré community in France, he was also able to write the story of the revolution and its background in several books of lucid and engaging prose. Like any historian-participant, he occasionally spun events to fit his views at the time of writing, but through his contemporaneous speeches and writings we can detect cases where he adjusted history—usually only slightly—to reflect a new outlook. And his charm and capacity for friendship with people radically different from himself—Leo Tolstoy and the maverick Social Democrat Alexandra Kollontai come quickly to mind—created a trail of relationships far beyond the ken of most lawyer-politicians, however distinguished.
In the Russia of 1905–17, Vasily Maklakov may have represented the very center of the political center. As Leon Trotsky wrote of him in 1913, he “rose above all parties.”1 Trotsky’s words were, in fact, an ironic sneer at Maklakov, but regardless of the intended irony, the words capture a truth. The moderate opposition—those who were neither self-proclaimed revolutionaries nor fans of unlimited autocratic power—was divided into two main parties. On one side were the Constitutional Democrats, or Kadets (the informal name derived from KD, the initials of their name in Russian). On the more conservative side were the Octobrists, who took their name from the October Manifesto and sought to advance the political system that it sanctioned. One might call the Kadets the center left and the Octobrists the center right. Though a Kadet leader, Maklakov combined elements of both the Kadets and the Octobrists. His insistence of thinking issues through for himself led to criticism from more partisan contemporaries. Paul Miliukov, the leader of the Kadet party and often an adversary of Maklakov, criticized him after the Bolshevik revolution (when both were emigrants) for having believed unduly in compromise2 and described him with some disdain as having a lawyer’s professional habit of “seeing a share of truth on the opposite side, and a share of error on his own.”3
Maklakov deviated from Kadet and Octobrist orthodoxy on several key issues. The Kadets were firmly committed to a drastic agrarian policy: the state should take the land of non-peasant landowners, giving some compensation but not market value, and should transfer it to the peasants. But the peasant recipients themselves would not get full title—only a temporary right to use the land, subject evidently to endless further bureaucratic redistribution (a point the Kadets soft-pedaled in their quest for peasant votes).4 Someone who favored serious protection for private property, though recognizing limits on that protection, could not be fully at home among the Kadets. But the Octobrists generally opposed equal treatment for Jews, Poles, and Finns and staunchly resisted anything like autonomy for Poles and Finns. This isn’t to say that the Kadets were utterly indifferent to property rights or that the Octobrists were anti-Semites and extreme nationalists to a man. But anyone who favored the rule of law and private property rights and an end to state discrimination against Jews and Russia’s “national minorities” was bound to be a bit uncomfortable in either party. Maklakov cast his lot with the Kadets, but the relationship was always a somewhat awkward marriage of convenience.
Maklakov brought to that marriage above all his skills as a brilliant and persuasive advocate, referred to in virtually every appraisal of him by his contemporaries. He had mobilized these skills for the first time in a controversy at Moscow University. A student chorus and orchestra had traditionally given a concert for the benefit of impoverished fellow students, but the famine of 1891 led to a proposal that the concert proceeds should go instead to famine relief. The issue was to be decided at a public meeting of the students, and those planning to speak for or against the change lined up on opposite sides of the auditorium. After Maklakov spoke in favor of famine relief, the line on the opposing side melted away, and the issue was resolved by default to his position.5
Maklakov used his advocacy on behalf of the Kadet party, both on the stump and in Russia’s parliament, the Duma. At least he did so for goals with which he was in genuine agreement, such as judicial independence, limits on government arbitrariness, dispensing with restrictions on Jews and religious minorities, and constitutional treatment of national minorities. On issues where he could not embrace Kadet views, such as their confiscatory solution to Russia’s agrarian problems, he generally remained silent.
Maklakov, in turn, enjoyed a position of influence in the party, being a member of its central committee from its founding until long after 1917. And he had the satisfaction of playing a pivotal role in mobilizing support for the party’s electoral and (occasional) legislative wins. Assuming that the Kadets comprised, from his perspective, the least bad of the parties in existence, they gave him a political home without his having to try his luck at founding a new party—a course he contemplated but rejected.
Maklakov liked to quote Antoine Pierre Berryer’s remark, “The only way to avert a revolution is to make one.” Probably most Russian liberals agreed with the general idea, with everyone understanding that the idea was to obviate a revolution by means of drastic reform. But what kind of reform? Maklakov gave no explicit answer. But his work as a member of the Second, Third, and Fourth Dumas (from 1907 to the February Revolution in 1917) provides one indirectly. He seems to have believed that Russia could curtail government arbitrariness and supplant it with something resembling a Western emphasis on the rule of law. This vision permeated his public activities and writings. Even when advocating reforms that could be advanced on many grounds, he always highlighted the rule-of-law benefits.
As the rule of law was Maklakov’s foremost reform goal, his greatest concern in strategy echoed Miliukov’s phrase “the need to see possible merits in opponents’ views.” Especially in his historical accounts, he time and again expressed the belief that Russia’s tragedy lay in a kind of twin blindness—a failure on each side to welcome, to use, and to benefit from the moderates on the other side. The regime and the opposition were each internally divided. Despite its autocratic character, the regime contained liberal elements interested in reaching out to the liberal opposition; the opposition, despite containing a powerful, and in many instances ruthless, revolutionary movement, also contained moderates who favored a gradualist path toward constitutional monarchy or at least some variety of liberal democracy. But the regime was reluctant to extend a hand to the liberals (confusing them with the regime’s true enemies, the revolutionaries), and the liberals typically failed to grasp the hand occasionally extended (confusing the regime with the far right and discounting the far left’s threat to liberalism).6
Maklakov’s relationship to his brother Nikolai, also deeply involved in pre-revolutionary Russian politics, adds a special pi quancy to his story. Representing almost opposite poles in the political spectrum, the two weave in and out of each other’s lives. A biographer sketching a person’s ancestry, upbringing, and schooling tends to rely on at least an implicit suggestion that these may partly account for the shape of his career and character. This biography will be no exception. But as to any causal link, the suggestion is muted.
Maklakov’s parents had seven children who survived infancy. At a relatively early stage Vasily appears to have been at odds with his younger brother Nikolai, to the point that in October 1895, when Vasily was only 26 years old and Nikolai only 24, Vasily expressed a wish that there be no further correspondence between them.7 Later, Nikolai seems not to have been so hostile—in a conversation about Kadets with a government colleague in 1913, Nikolai said in passing that he had a brother who was a Kadet and “he has a lot of good qualities.”8 Whatever the exact cause of the rupture, politics seems likely to have played a role. While Vasily was inveighing against the lawlessness of the ministry of internal affairs, Nikolai was an integral part of that ministry—indeed, he was the minister for two and a half years, from December 1912 to June 1915.9 While Vasily was defending Menahem Mendel Beilis against trumped-up charges of murdering a 13-year-old boy in order to extract blood for mysterious Jewish rituals, Nikolai was helping to concoct the charges and orchestrate the prosecution. Nicholas II, whom we don’t think of as a punster, was sufficiently struck to make a pun out of the brothers’ initials, NAM (Nikolai Alekseevich Maklakov) and VAM (Vasily Alekseevich Maklakov). These are Russian pronouns, and Nicholas would commonly say (in a liberal translation), “We have two Maklakovs, one NAM (ours), one VAM (theirs).”10 Actually, if he’d listened to VAM, he might have spared himself and, far more important, Russia endless grief.
It is a troubling clue to early twentieth-century Russian politics that Lenin declared, in a passage quoted in the entry on Vasily Maklakov in the first edition of the Great Soviet Encyclopedia, “The difference between any Maklakov and the Octobrists is completely illusory.”11 Given the differences, Lenin’s lumping the brothers together, and both of them with the Octobrists, seems a triumph of venom over reality.
The rule of law has many definitions—as many, it’s been said, as there have been people writing about the subject, reflecting an inescapable amorphousness in the concept. But certainly for Maklakov, as probably for most advocates of the rule of law, the central feature was the subordination of the executive to law, sharply limiting its possible arbitrariness. These limits require, for openers, judicial independence, clear laws rather than ones whose vagueness invites arbitrary and biased application, and remedies that give relief to the victims of government arbitrariness and disincentives to officials tempted to embark on lawless behavior.
These limits on government all relate directly to formal rules and structure. But these alone cannot assure the rule of law. Parchment tenure provisions can buttress courts’ independence but cannot, alone, enable them to constrain a willful executive. As Alexander Hamilton argued, courts have “no influence over either the sword or the purse,”12 and in a state where the executive’s power is little tempered by an independent legislature, free press, or civil society, courts are unlikely to pose a serious constraint on executive authority.13 Although independent courts may be the instrument for protecting the rule of law, their effectiveness is quite dependent on the “correlation of forces,” both material and intellectual. Unless key segments of society respect the concept of law, and the laws at least broadly reflect those segments’ interests, rulings applying the law are unlikely to command adherence. Getting to such laws of course requires compromise.
Maklakov understood this dynamic. In advocating advances in the rule of law, he regularly tried to build intellectual and social foundations for a law-based state. An example is his work shepherding a bill for equalization of peasant rights through the Duma in June 1916. An imperial decree issued in October 1906 had taken serious but incomplete steps toward such an equalization, and Maklakov’s bill had limited functions—turning the 1906 decree into a regular law and expanding it at the margins. But a persistent undercurrent of all issues relating to peasants was their widespread demand for the land of non-peasant landowners. In an effort to make the landowners see the benefits of admitting peasants to others’ ordinary civic rights, Maklakov argued that so long as peasants were not admitted to full legal rights, they were likely to persist in demanding others’ land.14
Similarly, arguing for repeal of the Pale of Settlement that kept Jews almost entirely excluded from much of Russia, he noted that the government had put itself in a preposterous bind, using incoherent and exception-filled rules to balance the anti-Semitic purpose with some opportunity for the rest of the country to benefit from the Jewish community’s skills. He argued that because no civilized state could enforce the rules as written, they were an open invitation to bribery and corruption.15 Maklakov’s struggles for legislation were always grounded in a sense of how laws might fit—and reflect and nurture—citizens’ consciousness.
Though Maklakov was a vocal and persistent avatar of the rule of law, his record was not unblemished. At the invitation of Prince Felix Yusupov, he played a role in the December 1916 plot to assassinate the shadowy religious figure Grigorii Rasputin. Though Maklakov’s role started with advising the conspirators against the project altogether and then against particularly risky approaches, he allowed himself to be sucked in to the point where, as he later acknowledged, he could have been found guilty as an accessory. Why would he do such a thing? Perhaps the sort of civic zeal that moved the most honorable of Caesar’s assassins? Perhaps a love of adventure, a raffish streak? After discussion of the issue in chapter 16, the reader will be able to speculate with more nuance.
Maklakov’s efforts failed. But the failure is hardly shocking in view of the obstacles facing the rule of law in early twentieth-century Russia. The Romanov dynasty had ruled autocratically since 1613. It had occasionally assembled a zemski sobor, a gathering of politically weighty citizens loosely comparable to the Estates-General of pre-revolutionary France. These gatherings normally rubberstamped decisions already taken, but they occasionally expressed an independent viewpoint. The last summons of a zemski sobor had occurred in 1684, to ratify a treaty with Poland. So politically active figures in the Russia of 1905 had had little experience in the arts of compromise needed to carry out the October Manifesto’s experiment in self-government.
Nicholas II himself was by personality and character unsuited to the task of presiding over a transition to the rule of law. Though delegating much responsibility to his ministers, he nonetheless took many key decisions himself. His loyalty to Russia and general decency are not—or should not—be in question. But what of his capacity? His tutor, Konstantin Pobedonostsev, wrote that Nicholas had a good brain and analytical skills, but that he “only grasps the significance of a fact in isolation without its relationship to other facts, events, currents and phenomena.”16 If that deficiency is consistent with a good brain and analytical skills, one shudders to contemplate a mediocre brain. In any event, Pobedonostsev’s comment seems wholly consistent with Nicholas’s almost complete incapacity to address institutional issues, his largely mistaken confidence in his personal relationship with the ordinary Russian, and his refusal to talk an issue through with advisers. To the end he remained blind to the necessities of prioritization, of using a bureaucracy to sift through issues, and of delegating real authority to a person capable—unlike himself—of wielding it systematically and coherently.17
Despite his issuing the October Manifesto, Nicholas generally resisted genuine reform. In January 1895, while the public still entertained an initial glow of hope for his new reign, some rather conservative landowners active in local self-government had, very deferentially, suggested that he create a formal means for the public to communicate its views to the government. He dismissed their views as “senseless dreams.” He issued the October Manifesto ten years later not because he had recanted his senseless-dreams epithet, or because he believed that Russia and the monarchy would benefit from institutional reforms, but because he saw the manifesto as the only way to defeat the revolution then in progress. To be sure, the regime contained officials dedicated to reform—without them the October Manifesto could not have been issued at all. But the tsar himself and the conservative rural landowners who were his main base of support saw no affirmative good in the institutions launched by the manifesto.
In recognizing Maklakov’s position at the center of the political center, we’ve already seen the wide divergence between Kadets and Octobrists. But the members of those parties were the relative moderates. On their left stood self-proclaimed revolutionaries who boycotted the first set of legislative elections, and some of whom favored or practiced terror. On the moderates’ right were fans of absolute monarchy, overlapping heavily with ardent anti-Semites, ready and often able to launch pogroms. Both extremes were unlikely to help develop the rule of law.
Nor was the mindset of the population hospitable to rule of law values. The peasants, the vast majority of the population, held virtually no formal rights but were subject to an array of obligations, including a duty, like the old French corvée, to perform the scut work needed to provide local services, such as road maintenance. Instead of rights, they had a vaguely conceived expectation that the state would somehow provide enough land for them to scratch out a living. People with such an expectation could hardly look favorably on the legal property rights of “landowners”—those from whom additional land might be drawn. (Historians use the term landowners only for non-peasant landowners; though peasants held about three times as much land as did the “landowners,”18 their rights in most of that were too squishy to be called property rights.) With peasants’ rights so limited, it’s natural that their maxims relating to the law were generally negative, as, for example, “If only all laws disappeared, then people would live justly.”19
Indeed, property rights themselves enjoyed little respect. In the West property rights could be seen as a source of independence and thus of a capacity to resist overbearing monarchs and the state itself. In Russia, by contrast, they were associated with the claims and interests of landowners, who had for centuries been dependent on the monarch to keep their serfs under control. There, property rights had no such luster as in the West.20
But the peasants had no monopoly on hostility to others’ rights. One of Maklakov’s sparring partners in the Duma, an arch-reactionary whom we’ll encounter quite often, Nikolai Evgenevich Markov (known as Markov II), told Maklakov that “the gentry were enthusiastic about the nationalization of factories while resisting compulsory alienation of lands for the peasants. The industrialists had no objection to taking the gentry’s land, and the peasants of course wanted it.” Markov went so far as to tell Maklakov in the spring of 1907 that he anticipated revolution with pleasure, because it, in his opinion, would destroy what was evil in Russia—the bourgeoisie and capital. Another conservative contemporary, General Alexander Kireev, regarded Russians as prone to lurching from one extreme to another. Only “culture,” which he thought Russians lacked, “enabled people to see two sides of an issue and respect alternative points of view.”21
These attitudes seem intertwined with the weakness of Russia’s market economy. Markets rely on the rule of law: without some protection of contract and property rights from government and other possible predators, market relationships are riskier and more costly (and thus more rare). And markets nurture the rule of law: people operating in markets learn to compromise, to work out mutually beneficial transactions that recognize others’ rights.
While not only industry but also markets had grown in Russia since the emancipation of the serfs in 1861, a good deal of this was hothouse development driven by government (most dramatically in the case of the railways). Russia seemed to want the brawn of Western development without accepting the brains—the West’s institutional infrastructure and mindset.22 Market-friendly behavior and attitudes seemed not to jibe with Russianness. Russia’s corporate founders and managers consisted disproportionately of tiny minorities, such as Jews and Russians of German ancestry. Even business leaders who were ethnically Russian and relatively independent of government, such as the Moscow merchants, were surprisingly devoted to the autocracy. And while Great Britain, France, and the states making up the United States had by the middle of the nineteenth century allowed individuals to enter business via corporations simply through filing routine papers, no such option ever existed in imperial Russia. There, corporations could be formed only at the discretion of officials, a rich opportunity for cronyism and bribery and a source of delay and expense.23
Government censorship, though disorganized and often ineffective,24 posed a threat. In Maklakov’s opinion it drove many reformist thinkers to avoid wrestling with structure or policy in Russia and instead to pen rather abstract comments on political issues in Western Europe. Until the October Manifesto they had little to gain by sober consideration of practical constitutional variations in the Russian context, especially as there had been no legislative body to take action. Maklakov quoted Bismarck’s remark that nothing corrupts a party so much as a long time out of power. Having little prospect of acquiring power, such a party is little inhibited from making extreme criticisms or frivolous promises. So, too, he argued, for Russian intellectuals.25
Even Russia’s literary elite had little regard for the rule of law. The most obvious example is Leo Tolstoy, a friend of Maklakov since the latter’s college days, who at least purported to condemn all state coercion equally and to regard qualitative distinctions between governments as pointless or even dangerous. To characterize one government as “better” than another would be to offer an implicit justification of the unjustifiable.26 Other Russian writers and intellectuals joined Tolstoy in measuring courts, lawyers, and the law itself against their ideas of perfect morality and perfect truth, rather than seeing them as a set of human institutions with some prospect of making the human institution of which they were a part—the state—less dangerous to morality and truth and more helpful to human flourishing. Thus Alexander II’s judicial reform of 1864, a radical step toward creation of an independent judiciary and private bar, earned him no credit among Russia’s foremost literary figures. Their disdain for the reform may account for some of the inroads into judicial independence that occurred after 1864.27
The weakness of civil society had implications for an aspect of the rule of law distinct from constraints on the executive, an aspect that Maklakov consistently pressed—achievement of the “order” in ordered liberty. Protection from executive arbitrariness is of limited value if, where government is inactive or ineffective, people lack the skills to work out their conflicts peaceably, through private negotiation or local political institutions, and have no ingrained resistance to rule by violence. The market’s embryonic character meant that capacity for private negotiation was underdeveloped; and the central government’s limits on the representativeness and authority of local government bodies (notably, the zemstvos), and its discretionary interference with their decisions, stunted their capacity. The fall of the tsarist regime in February 1917 and its replacement by a relatively inexperienced provisional government of contested legitimacy left a gap—to be filled, in many cases, with polemics, violence, and the threat of violence.
That said, the early years of the twentieth century saw rapid change in both the economy and attitudes. Elements of civil society—voluntary associations of every kind; a harassed but largely independent press; independent businesses and unions; groups who, though in competition, were able to negotiate their differences so long as the state kept its hands off—were beginning to thrive.28 Bit by bit Russians were acquiring the experience essential to liberal democracy.
In an environment so uninviting for the rule of law, the question is less why Maklakov failed to achieve his ultimate goals than how he was able to make any progress at all—and I’ll show that he did. The question on which he focused, how a liberal democracy can grow out of an autocracy, and the related question of nurturing the wellsprings of a productive economy where producers are motivated to create goods or services for voluntary purchase have been the subject of many recent books, such as North, Wallis, and Weingast’s Violence and Social Orders; Fukuyama’s The Origins of Political Order and Political Order and Political Decay; Acemoğlu and Robinson’s Why Nations Fail; Mokyr’s The Enlightened Economy; and McCloskey’s trilogy, The Bourgeois Virtues, Bourgeois Dignity, and Bourgeois Equality.29 This book is informed by their insights, but follows Tip O’Neill’s maxim that all politics is local. Russia before the revolution had much in common with all autocracies, but with a Russian flavor. My hope is that a look at one individual’s efforts—themselves informed by ideas at least overlapping with many current notions of evolution toward liberal democracy—can enrich our understanding of such evolution.
Although I read Maklakov’s story as shedding light on the process of reform toward the rule of law and constitutionalism more broadly, this book is not a handbook—it’s not a how-to-do-it guide nor even a tidy list of steps not to take. My far more modest aim is to tell the story for its own sake and with a view to helping us understand what reformers around the world face today—living under regimes that deny their citizens basic liberties. In the past decade we have seen so-called color revolutions in the post-Soviet space and the Arab Spring stretching from Tunisia to the Middle East removing old authoritarians but failing to replace them with liberal democracy. While Maklakov’s story may make much of that shortfall seem natural, it may also provide grounds for hope that comparable figures will arise and have greater luck finding allies and forcing authoritarian retreat.
* By the Western, or Gregorian, calendar, the revolution took place on November 7, 1917, which by the Julian calendar (Old Style, or O.S.) was October 25; hence, the “October Revolution.” I will use Old Style indications for events that occurred before January 1918, in part because many of them became known by their dates under the Julian calendar.
