IN THE EARLY TWENTIETH CENTURY about 90 percent of the Russian people were peasants. Thanks to the long history of serfdom and the incompleteness of emancipation in 1861, they lived in legal, political, and social isolation. Their rights in the land they tilled were different from the property rights of any other citizens. And their relationship to provision of basic government services was special: they performed, without payment, all the physical work needed to produce and maintain local rural roads and other public goods—the benefits of which were shared by all rural residents—and had almost no voice in the decision-making. A serious reform of the Russian state would have to change all this, and change it radically. Maklakov saw the peasants as the “national wealth,” and argued later that one of the monarchy’s two great sins was its failure to foster that wealth.1
The property rights issue was, of course, critical in the Second Duma (see chapter 7), where the split between Stolypin and the Kadets explains the Duma’s dissolution and the June 3 coup d’état. Those two events enabled the government to implement the Stolypin reform without Duma interference. Maklakov, not sharing the Kadet party’s policy, made very few public statements on the subject. The statements he did make reflect much of his usual acuity, but can’t be said to offer either a nuanced critique of the Stolypin program or a full assessment of the Kadet proposal—his assessment, if it were candid, would have been scathing. (As he wrote later while an émigré, he thought the Kadet idea would reinforce the principle of dividing the population into estates, a principle the Kadets normally and rightly opposed; only gentry would have property confiscated and only peasants would receive any rights. And it would violate property rights, one of the basic rights requiring protection in a rule-of-law state, to which the Kadets claimed to be committed.)2 We’ll look at the public statements that he made on the subject before the Bolshevik Revolution, but they are disappointingly few and brief, considering the issue’s importance and the passions it aroused.
On the broader issue of peasants in local government and provision of local public services, however, Maklakov played quite a serious role. In the period between the dissolution of the First Duma and the assembly of the Second (a legally productive period, thanks to Article 87 and Stolypin’s energy), the government issued not only its property-rights reform but also an October 5, 1906, decree eliminating or ameliorating some of the special rules that made the peasants a separate caste. In 1916 the government proposed a bill to turn the October 1906 decree into a regular statute. As a member of the Duma committee on judicial reform, Maklakov was assigned to be reporter (dokladchik) for the bill and prepared a comprehensive report. His recommendations included a revised bill, somewhat expanding the equalization measures of the original decree and of the government bill. Above all, his report recognized that the peasants’ status as a separate estate was the keystone of an elaborate but decayed edifice. It could be removed; but its removal, unless accompanied by a host of other changes, would leave only a pile of rubble. His true accomplishment in 1916 was to put the task of replacing the obsolete estate system on the agenda—an agenda, to be sure, that was likely to move slowly because of the regime’s foot-dragging and the war. The replacement would have to transform the nature of local government. The estate concept, itself a legacy of serfdom, would have to go, and with it the practice of requiring peasants to provide local services (roads, bridges, police, and so on) without pay. A new system, necessarily an all-estate system, would have to be created, a system in which peasants had a voice and financing depended not on “free” work but on revenues collected from all.
As to property rights, the Stolypin reform of 1906 had set Russia on a course toward private ownership, a somewhat rickety course, to be sure.3 An understanding of the issue starts with the meaning of the term “allotment land.” This refers to the land allotted to peasants in the course of emancipation, carved out of the land formerly owned by the serfs’ owners. Peasants had had the legal right to acquire ordinary, non-allotment land since 1848, and when they did so they held it under the same rules that applied to anyone else.4 They had increasingly taken advantage of that right over the years, but even by 1910 the overwhelming bulk of their interests in land continued to be allotment land. Stolypin’s reform sought to transform this situation, enabling peasants to opt out of the commune’s de facto collective ownership and into individual control.
In his 1910 report to his constituents in Russkaia Mysl, Maklakov explained that he hadn’t had much to say on the property-rights issue, not only because of disagreement with his party but also because his own views on the subject weren’t firm.5 Indeed, his article didn’t develop any strong position. His statements reflect some sympathy for both sides. That balance seems typically Maklakovian, but on this subject it was rather shapeless. He contrasted the Kadet “desire to take from the rich and give to the weak,” with the government’s desire “to take from those who cannot or do not want to farm their allotment land successfully, or don’t use it, those who wasted or ruined it, and give it to the ‘stronger peasants.’” He put “stronger peasants” in quotes because the phrase was an allusion to Stolypin’s explanation—he had said his proposal was a “wager on the strong.” Maklakov’s wording in his Russkaia Mysl article implicitly recognized that by “strong” Stolypin meant those who, if given independent control over their land, could and would farm it successfully, or at least were likely to do so, not peasants who were already well off. His wording also implicitly recognized the force of one of Stolypin’s basic policy judgments—that it was generally desirable for productive resources to flow into the hands of those most likely to enhance their productivity (as resources would in a well-functioning market economy).
But Maklakov’s 1910 discussion also used some of the rhetoric of Stolypin’s most vituperative critics, suggesting that the reform would “take” from one set of peasants and “give” to another. In fact, although the reform was more advantageous for some peasants than for others (as would be true of any adjustment in legal rights), it didn’t “take” land from or “give” land to anyone—except to the extent that it shifted rights within a given peasant family. That shift represented the reformers’ replacement of family ownership, which had governed allotment land, with individual ownership.
That adjustment was the subject of Maklakov’s severest criticism in his 1910 article. Formerly, if we put aside the uber-ownership of the commune (with its power to control the timing and character of cultivation, and periodically to redistribute the parcels so that each peasant family’s land would be roughly proportional to its supply of labor), the nearest thing to an “owner” of allotment land would have been an extended family unit. That meant that any decision to transfer land (itself difficult at best under commune conditions) would have involved all members of a multigenerational group. Under the Stolypin reform, ownership was reallocated to the oldest male of the family. The change had obvious potential for unfairness to the other members of the family.
Maklakov gave the example of a man with six children, whose father (the grandfather of the six) received the family’s land under the reform’s rule of giving the land to the senior male; he had then sold it, leaving the man and his six children poverty-stricken. Of course this is a risk in any economy with individual ownership (though it is sometimes qualified by rules like dower to protect widows or minimum shares for children at an owner’s death); we depend for the most part on ordinary decency and parental affection and loyalty to keep the risk relatively low. A system that gives every family member the right to veto a sale tends to tie up resources inefficiently, but an abrupt shift to individual ownership can do violence to expectations. Maklakov believed that the reform hadn’t adequately addressed the ill effects.
His concern was doubtless genuine. He elaborated on the problems in two extensive lectures that he delivered in December 1916.6 (When the Rasputin assassins explained to him that they had the night of December 16–17 in mind for the deed and wanted him available to give legal advice in its wake, he told them his commitment to give these lectures in Moscow that very evening made it impossible; see chapter 16.) The lectures gave an elaborate account of the differences between the social premises of general civil law relating to inheritance of land (where the blood relationship tended to be key) and those of the peasants in regard to allotment land (where work, such as that of sons-in-law who labored with the family, gave rise to entitlements). Maklakov, being staunchly committed to ending the artificial division of the population into estates, clearly could not propose a reliance on the estate concept to protect peasant expectations. Instead he proposed that a special set of rights should apply to allotment land itself: although his proposal would not disturb the Stolypin reform’s provision allowing a family to withdraw its property from control by the commune, it would, for that land, reestablish the intra-family property rights that had been applicable before the reform. Gradually, he proposed, blocks of land would be released from the intra-family ownership system and converted to the rules governing property rights in all other land. But he gave no details on this process of gradual release, did not address the problems of conflicting interests in getting consent to the release of a block (assuming it was to be consensual), and never confronted the costs in lost productivity for land tied up in familial ownership.
Maklakov’s last intervention on property rights before the Bolshevik Revolution was a speech to the Kadets’ Eighth Party Congress in May 1917.7 He advanced a decidedly less intrusive approach than that of his party: a progressive land tax that would favor small farms but would not at one blow break up the larger, more productive properties. It may seem surprising for Maklakov to have even attempted offering a proposal at such variance with the party line, but circumstances in the spring of 1917 may have given him hope for a respectful hearing. He could reasonably have thought that wartime exigencies had softened the party’s insistence on its program of massive compulsory redistribution, which, whatever one thought of its ultimate merits, was certain in the short run to upend the cyclical work of planting and harvesting. Moreover, his proposal favored small-scale over large-scale agriculture, and thus peasants over gentry, so it would have advanced oft-stated Kadet goals.
Maklakov characterized the Kadets’ policy of compulsory redistribution as merely a means to the end of supporting small-scale agriculture, especially farms worked entirely by the owners and their families. This was quite an incomplete statement of the party’s goals, as Maklakov well knew. After all, Miliukov and other party members actually looked forward to nationalization of the land, and for that reason opposed creating genuine property rights in the peasants who were to be the nominal recipients of the redistributed land.8 Indeed Miliukov had scoffed at the idea that individual ownership was either a Russian dream or a Russian reality.9 But Kadet orators had spoken warmly of small, family-worked farms, so it was only fair to take them at their word and offer policies that matched the rhetoric. Enough Kadet representatives might have placed that goal above compulsory confiscation to produce a majority for a policy that helped small, family-operated farms without disruptive effect.
Maklakov laid the groundwork for his proposal by referring to the accepted understanding that small-scale Russian agriculture was considerably less efficient than medium- and large-scale production. Indeed, not only did larger tracts have higher productivity, but their productivity edge had been steadily and markedly increasing from 1861 through 1910.10 Pointing to the wartime need for agricultural produce (the Provisional Government, as desperate for grain as its tsarist predecessor, had imitated the latter in forcing peasants to supply grain at government-fixed, below-market prices) and the long-run need for productivity imposed by international competition, he urged that it was folly to break up large agricultural holdings. The superior productivity of the large farms was not axiomatic, he said, just a function of current Russian conditions, so the government could reverse it over time, with policies helping small-scale producers to catch up. He also addressed the enthusiasts for breaking up “latifundia” who had argued that the large tracts broken up for purposes of redistribution could then be reunited for purposes of cultivation through cooperatives. Maklakov replied with the rhetorical question—did it make sense to artificially break them into pieces and then have to put them together again?
His solution was a land-tax with progressive rates, higher for large holdings, lower for smaller ones. Maklakov argued that such a tax would push the owners of large tracts either to enhance productivity, or, failing that, to sell them off into smaller parcels (for which buyers would be ready to pay more because of the lower taxes). As Maklakov saw it, this would nudge the country “painlessly and smoothly” toward both high productivity and the flourishing of small farms.
Maklakov’s analysis received support from Rodichev and a few other Kadets, but not from the bulk of party representatives. Although a modern economist could poke a number of holes in his argument, that was not the ground of Kadet opposition. The party reporter for its position on agricultural policy, N. N. Chernenkov, swept Maklakov’s analysis aside, saying that his and Rodichev’s arguments were “so far from the basic party line that discussion of the differences of opinion would be completely fruitless.”11 The conference proceeded to adopt the standard Kadet nostrum, explicitly rejecting an amendment under which the peasant recipients would receive the land as private property.12
In this May 1917 speech Maklakov made no mention of the deprived heirs, even though the subject had been central to his Russkaia Mysl discussion of agricultural policy and his 1916 lectures. Of course by May 1917 there was no point in criticizing Stolypin, who had been assassinated in 1911, and in the Provisional Government’s perilous situation it made sense to focus on reconciling Kadet attitudes with the need to produce adequate food supplies. The problem of intra-family claims made a brief appearance in an analysis he published in 1923 in a British scholarly journal, but there he passed rather quickly over to “the infinitely greater difficulties” connected with general governance issues in the countryside.13 And in a 1927 preface to the French edition of the stenographic minutes of the Provisional Government’s investigative commission, which he used as an opportunity to analyze the old regime’s collapse, he seemed to give Stolypin his full due. Speaking of the agrarian reform, he didn’t allude to the occasional child who lost out to the rapacity or self-indulgence or incompetence of an ancestor. Rather, he spoke of the “remarkable audacity and energy [with which Stolypin] cut the Gordian knot” and contrasted Stolypin’s approach favorably with the policies and attitudes of his Kadet brethren.14
In a letter to Maklakov in 1944, his old friend and ally Ariadne Tyrkova-Williams criticized him for coming to his understanding of the peasant problem late in the day.15 Her letter didn’t say just when she thought he really got a handle on it: my guess is that she would have seen such an understanding in his shepherding the rights-equalization bill through the Duma in June 1916 (our next topic). But that was indeed late in the day. The Stolypin reform had been a central political issue since no later than November 1906. Four years later Maklakov tackled it, but concentrated on what he later (1923) acknowledged was a peripheral issue, perhaps in part because of a desire to agree with at least a sliver of his party’s viewpoint. But from November 1906 onward, Maklakov’s intellect and eloquence could have enriched the debate on the reform and perhaps led to important improvements, especially in 1910 when the Third Duma debated the reform and enacted it, somewhat amended, into a regular law. Tyrkova-Williams’s rebuke seems just.
We now turn to the issue of Maklakov’s work on the equalization of peasant rights and responsibilities. In the spring of 1916 Maklakov took up this issue, together with the closely related challenge of integrating peasants into local government. On March 2 he received the assignment to be reporter for the government’s bill turning the October 5, 1906, equalization decree into a real statute. On April 4 he completed the committee’s comprehensive report,16 which included a revised bill, somewhat expanding the equalizations of the original decree and of the government bill. As Maklakov frequently acknowledged, in the report and on the Duma floor, the measure left a great deal to be done, even with the committee’s enhancements.
Maklakov’s work on the bill seems to have deepened his appreciation of how radically the Russian state was askew and how much it reflected the selfish interests of the landowner class. Observations of this sort appear constantly in his personal correspondence after the revolution. In a letter to Boris Bakhmetev, the Provisional Government’s ambassador to the United States, for example, he wrote of how a moment can come in a society when a minority in a country begins to be “a burden and a cage preventing the country’s development,” and cites a passage in Anna Karenina for its “sharp observation about how hard it is for a person to condemn a situation that is personally advantageous for him.” In the passage, Kitty’s father observes that his son-in-law, Stiva Oblonsky (the husband of Dolly), has acquired a “post as member of a committee of a commission and whatever else, I don’t remember. Only there’s nothing to do there—what, Dolly, it’s not a secret—and the salary’s eight thousand. Try asking him whether his work is useful and he’ll prove to you that it’s very much needed. And he’s a truthful man. But then it’s impossible not to believe in the usefulness of eight thousand.”17
The bill largely absorbed the Duma’s calendar through the first half of June, taking seven days of debate. Throughout the discussion Maklakov was master of the Duma. The beginning was stormy. His initial explanation—the speech that his Bolshevik friend Alexandra Kollontai said was “very powerful, exact and successful”18—drove the Duma’s fringes into a frenzy. Monarchists to right of him, revolutionaries to left of him, volleyed and thundered. But unlike the unfortunate six hundred in the charge of the Light Brigade, Maklakov rode not into the valley of Death but into a thorough vindication. Every amendment he opposed fell, every amendment he supported passed. After he had guided his sections through (a different reporter handled some special provisions relating to the Baltics), there was a call to recognize his accomplishment, leading to “prolonged applause for the reporter for the committee on judicial reform, Duma member Maklakov.”19
The rules governing the continued survival of a decree under Article 87 meant that maneuvering such a bill through the Duma was a game of legislative chicken. The government’s decision to offer the bill showed that it wanted the 1906 reform’s continuation, but obviously it would never countenance reforms that radically transformed Russia’s social system. Deputy Minister of Internal Affairs Aleksei Aleksandrovich Bobrinskii went out of his way to say that the bill did not dissolve the peasant estate and that the government had no intention of doing so.20 As Maklakov saw it, the strategic context imposed two limits on how much the bill could add to the 1906 decree. First, the bill could not address problems whose solution would require additional, highly complex new legislation;21 this meant that the most vitally needed change—creation of a new, all-estate system of village governance—was off the table. Second, the bill should adopt only extensions that both fitted the 1906 decree’s basic concept (namely a reduction in the adverse effects of peasants’ status as a separate estate) and that fitted the concept so well that the government would be embarrassed to reject the bill or have the State Council reject it. Rejection would deny peasants rights they had enjoyed for a decade unless remedied by the government’s reissuance of the decree under Article 87. As for amendments that didn’t fit the principle of the original decree, Maklakov tagged them “drive-by legislation.”22
Before we look at the intense conflicts those constraints produced, we should consider Maklakov’s basic pitch for the bill and its key provisions. His report included a lengthy passage from Ivan Strakhovskii’s Peasant Law and Institutions (Krestianskie prava i uchrezhdeniia),23 arguing that among all the special rules relating to peasants there was but a single right—the right, supplied by the state through its rules on allotments and periodic redistributions, to a sufficiency of land.24 The entire system of caste isolation and the legal limits imposed by the peasants’ estate status, argued Strakhovskii, fostered peasant consciousness of this claim to land and made it the central feature of their relationship with the state.25 Isolation led to enmity; exclusive obligations gave rise to thoughts of exclusive rights; and life outside lawful norms stifled respect for others’ rights.26 Treated as wards of the state rather than as citizens, peasants were likely to focus on the entitlement they enjoyed through the allotment and redistribution activities that the state performed in its role as guardian—and guardian not of rights but of advantages provided in its discretion. It was natural for them to think that the solution to at least some of their problems lay in government decrees finishing what the emancipation in 1861 had begun: transferring all of a landowner’s land to his former serfs (or their successors).
Always sensitive to the way economic change necessitated legal change, Maklakov pointed out that peasants had taken great steps since emancipation toward integration with the rest of society. Many had left the village and moved to the city, and yet retained ties to the village. Treating them as a separate group, assigned to performing a set of tasks under the direction of others, was a legacy of serfdom, under which the serf owners decided what work was to be done, and the serfs did it. Such a scheme was at war with current reality.27
The 1906 decree and the pending bill enabled peasants to combine receipt of a higher education or holding an official position with retention of membership in a village society, which would include retaining an interest in allotment land as well as retaining a voice in collective decisions made by the peasants they had left behind.28 These reforms also ended the land captains’ powers to arrest peasants for noncriminal behavior and to impose administrative penalties without having to justify their actions in formal proceedings. These key measures would obviously reduce peasants’ isolation and could play a role in facilitating their evolution into citizens enjoying the same sort of rights as any other.
In an argument aimed at attracting a little right-wing support, Maklakov argued that even those who didn’t care at all for equal rights should see the value of ending peasant isolation—a reduction of their interest in more government-ordered land transfers.29 This brought on a rage from Alexander Kerensky, who offered a snide rephrasing of the committee’s argument. In effect, he claimed, it told the peasants, “You’re free of the land captains’ power of arrest, so forget about your right to an adequate supply of land.”30 But Maklakov was not suggesting any sort of quid pro quo. He was arguing for movement toward a Russia where everyone could properly conceive of himself as a rights-bearing citizen, where peasants would see themselves and others in that light, and where they would both enjoy property rights as citizens in such a community and have reason to respect such rights in others.
It was obvious that curtailing the land captains’ discretionary power to inflict penalties on peasants would facilitate the peasants’ development as full citizens. For the provisions allowing peasants to secure a higher education or state office, even to become “gentry,” yet to remain members of their village society, the theory was less obvious. The change meant that peasants with drive and ambition would continue to belong to their societies, instead of being cut off as before 1906. Peasants as a whole would benefit from the continued involvement of such people in the village society.
As a result of the 1906 decree, every village society ceased to be a purely estate institution, even if peasants were a majority of its members.31 This change sharpened the question of equalization of rights. By introducing people from privileged orders into the estate that was assigned all the dirty work, it posed a choice for the decree’s drafters (and for those drafting the bill in 1916): one could equalize rights and duties in village societies, and thus require peasants who were educated or in state service or otherwise had achieved higher status to bear the in-kind obligations of the peasantry (all the local scut work needed for public goods such as roads), or one could release such privileged peasants from these obligations and thus introduce a flagrant inequality among members of village societies. The change to a multi-estate village society not only made inequality among those living in the village obvious but also deprived that inequality of any rationale whatever; its prior rationale had really been little more than the fact that that was the way things had worked under serfdom.32 The decree and the government bill had resolved the question in favor of the privileged peasants, enlarging their privileges to include relief from these burdens. The committee bill, taking advantage of a 1904 Senate ruling that had authorized persons subject to the burdens to get others to perform them by agreement (compare, for example, a U.S. Civil War draftee’s right to hire a substitute), changed the government draft and provided instead that all members of a village society be treated alike (though free, of course, to exercise the options provided by the 1904 ruling).33
Anomalies in the burdens on village society members who had gone on to state service or higher education were, for Maklakov, a vivid example of a more basic anomaly: that one estate provided most of the local public services all on its own, without compensation, while everyone else enjoyed the benefits scot-free. It underscored the urgency of creating a suitable unit of local self-government, presumably some sort of all-estate township.34 His Report’s introductory words quoted the language of Stolypin in introducing the decree of October 5, 1906, reasoning that relief of the peasants from their special burdens required reform of local government.35
Indeed, in the years between the initial decree and Maklakov’s efforts in June 1916, there had been ongoing efforts to implement the basic idea of an all-estate township government. These had generally been stymied by the clash between landowner desires for overwhelming voting advantages and strong bureaucratic powers of supervision over the actions of the local government, on the one hand, and the Kadet preference for a more democratic franchise and less state supervision, on the other. Negotiations on the subject continued under Stolypin, and a compromise bill passed the Duma in May 1911. Reform efforts continued after his assassination, in the period when Makarov was minister of internal affairs, but ground to a halt when Nikolai Maklakov assumed that post in December 1912. In 1914 a State Council committee amended the Duma bill to make it less reformist, but the State Council itself, presumably in part because of Nikolai Maklakov’s lack of enthusiasm, refused by a narrow vote even to discuss the bill.36 In August 1915, two months after Nikolai’s dismissal as minister, the Kadets reintroduced the bill that had earlier passed the Duma. It was referred to the committee on local self-government, where it languished.37
The bill pending in June 1916 could not—without stepping out of the framework created by Article 87 and losing any serious prospect of approval by the State Council—attempt to create an all-estate government. But Maklakov plainly saw the Duma’s consideration of the bill as a preface to genuine political integration of peasants and privileged. But for the preoccupation with the war, his advocacy of such a local government might have led to productive legislation.
Much of the Duma debate arose out of the clash between the limits on how far the Duma could go in extending the 1906 decree (not extensions requiring significant new legislation, and not extensions stepping out of the decree’s basic concept, that is, not “drive-by legislation”), as Maklakov saw those limits, and the desire of Duma members to use the occasion to end restrictions imposed on Jews and others classified as “non-Russians” (inorodtsy). Maklakov believed that one couldn’t seriously claim that amendments eliminating restrictions on “non-Russians” belonged to the decree’s concept of relieving peasants of estate-based restrictions.
But he and the committee could, and did, amend language in the original decree that by a misunderstanding had adversely affected Jews. The Senate had mistakenly read a misplaced phrase, “except non-Russians,” as requiring that Jews be denied passports of indefinite length.38 The Duma’s more unhinged anti-Semites took this correction (or pretended to take it) as a full-scale removal of all restrictions on Jews; by the same token, the left lambasted Maklakov and the bill for failing to do what the anti-Semites pretended the bill did.
The left, most ardently and frequently represented by Kerensky, never responded directly to Maklakov’s strategic argument for not including full Jewish emancipation. Instead, Kerensky claimed that a failure to emancipate Jews would “set the oppressed against each other.”39 His tag-team partner, Akakii Chkhenkeli, a Menshevik, made a comparable fact-free argument—that the inequality of rights for Jews was based on inequality of rights for peasants.40 He didn’t explain how or in what sense this might be true. Maklakov responded, “Yes, it is our shame that non-Russians do not enjoy the right of state service, our sin, but if you would relieve our non-Russians of this, why would you not lift it from our peasants who have so long borne it? And if we are relieving the peasantry of it, why do you say we are doing nothing?”41 He also turned the strange Kerensky-Chkhenkeli argument around, arguing that relief of the peasants would only strengthen the argument for relief of Jews: “When there are no longer 80,000,000 [peasants] deprived of rights in Russia, then no one will dare say that we must impose limits on 7,000,000 people of another faith. (Applause from the left and center.)”42
The rightist opponents offered equally curious arguments. The ever reliable Markov II proposed several times that the solution to the peasant problem was to give them the land belonging to Russia’s German, Austrian, and Turkish citizens.43 After proposing this giveaway of others’ rights, he said, “You’re rushing to allow Jews into the peasant village society, but the peasants themselves won’t allow it, because they understand that you want to destroy the peasant estate, destroy Russia, and subject it to Jewish capital.”44 Markov’s performance included a nice, if backhanded compliment for Maklakov. After lumping Kerensky and Maklakov together as “bowing before Great Jewry,” he implicitly acknowledged Maklakov as far more deft than Kerensky at advancing the cause of Jewish emancipation, declaring, “I must say, I don’t fear Kerensky, but Maklakov.”45
One of the ways that the 1916 bill went beyond the 1906 decree casts an interesting light on rule-of-law reform. Existing law gave a village society the power (subject to confirmation by officials of the Ministry of Internal Affairs) to expel a member for behavior that was “harmful or depraved”—but not criminal.46 Expulsion itself seems bad enough; it turned the victim into a kind of vagrant. But expulsion also typically entailed exile to Siberia.47 Driven mainly by concerns over the effect on Siberia of an influx of rejects from European Russia—including these peasant expellees but also, in much greater numbers, criminals (mostly nonpolitical) and other administrative exiles—the government had in June 1900 adopted a law giving the Ministry more leeway in handling those driven from their villages, allowing it to settle them in places other than Siberia. It also cut out the ability of societies of petty bourgeois (meshchane) to order these expulsions at all. But it left the expulsion power of peasant village societies in place.48 Maklakov’s bill took the step of denying village societies that power.
The right wing attacked the change, claiming to speak for the interests of the peasantry and exalting peasant judgment on expulsions. (As Rodichev pointed out, when it came to matters of peasant voting rights, the right was not so sure of peasant judgment.)49 Maklakov responded that other estates had their troublemakers, but no one saw that as justifying a rule that would allow them to drive the miscreants to Siberia without a trial, without a conviction, without evidence.50 He noted that Stolypin had promised repeal of administrative exile altogether, and he would have loved to have included such a repeal in the bill; but since it was well outside the scope of the 1906 decree, the main effect of doing so would be to give the bill’s opponents an excuse to oppose it altogether. Thus he had confined the measure to excising this special device for treating peasants lawlessly.51
But Maklakov didn’t rest his attack on this element of the exile system on the goal of equality between estates. First, he argued, since exile required confirmation by non-peasant authorities, including the land captains, in effect the system enabled the peasants to exile only those whom the authorities wanted to exile. Second, responding to a claim that removing the power of expulsion would stimulate vigilante justice, he argued that in fact the power represented precisely the sort of arbitrariness that would inspire additional vigilantism. It gave peasants a right to denounce each other; it set them at odds with each other; and it enabled the authorities to disclaim responsibility for disorder in the countryside.52
The debate illustrates a complexity of rule-of-law reforms. It is nice to think that the opponents of rule-of-law reform would be only members of the elite who are typically in the best position to brush the law aside. But peasants were on both sides of this dispute. There were many peasants whose safety or quiet had been disturbed by offenders removed under this power, offenders whose behavior was not criminal or who for any of a number of reasons could not be successfully prosecuted.53 But exposing people to the risk of such expulsion and exile was hardly consistent with the rule of law. It was plain to Maklakov that progress toward a constitutional regime required protection against government arbitrariness even when it might superficially appear to enhance social peace and to protect good citizens from nasty ones.
In the end, the bill was never presented to the State Council, and thus never took effect. In his writings in emigration, Maklakov analyzed the workings of Article 87 and argued that, in cases where the Duma wanted to add improvements to a decree in the course of its conversion into a statute, it had an advantage: the State Council would be reluctant to reject the amended law and thereby to shoulder responsibility for destruction of the benefits introduced by the decree under Article 87.54 True enough; this was indeed the basis for Maklakov’s addition of improvements to the bill. But his analysis disregarded the simple device by which the State Council could escape the bind, as it did in this very case: inaction, neither accepting nor rejecting the amended bill. This left the original decree in place, without the Duma’s improvements.
So far this chapter has addressed mainly the substance of the 1906 decree and the 1916 bill, and the strategic bind faced by Duma members supporting further improvement. But the debate also provided a platform for Kerensky, who in March 1917 would become the Provisional Government’s first minister of justice, and soon thereafter its “Minister-President,” the government’s dominant official. His performance in the debate may be instructive as to what lay ahead for the Russian people.
Kerensky in fact supported what the bill did.55 To be sure, as we saw in relation to equal rights for Jews, he thought it did not go far enough. Fair enough—to a modest extent his comments in the debate argued the merits of various extensions. But the bulk of his eloquence was devoted to other matters: the unalloyed evil of Stolypin and of the United Nobility; the wondrous quality of the First Duma in comparison to the defects of a Duma elected on the franchise law adopted in the coup of June 3, 1907; and the dereliction of the committee reporter (Maklakov) in failing to recognize these truths.
In all this Kerensky displayed an indifference to facts and a lack of focus. On the issue of extending equalization to Jews, he argued that the idea of not addressing solutions for Jews and other non-Russians dated back to Stolypin, insinuating that Maklakov was somehow Stolypin incarnate.56 Expatiating on the wickedness of Stolypin (and by association, Maklakov) naturally took him to a discussion of the field courts martial,57 in which he overlooked the fact that Maklakov had led the attacks on that now long-dead institution. (The modern reader, plowing through all this, enjoys a shiver of delight when a voice pops up from the right, shouting, “It’s boring, all this old stuff.”)58
Kerensky offered no clue as to how that sin of Stolypin had any bearing on the Duma’s turning his October 5, 1906, decree into law, which Kerensky recognized was a good thing to do. The whole effort to tar Maklakov with a Stolypin brush was odd. As Maklakov replied, he had been a determined foe of Stolypin, but felt the need to recognize his service when he accomplished something valuable, such as the October 1906 decree. “For me, to recognize when my opponent is right, to recognize the deserts of my political foe, is a duty of political honor and I have here fulfilled it.”59
Although Maklakov had consistently downplayed the significance of the 1906 decree, and even more the bill (whose main effect was to change the legal status of the decree’s rules), Kerensky suggested that Maklakov had claimed that the decree had repealed the estate condition of the peasantry, a claim Maklakov had never made.60 Kerensky also seemed to feel it useful to insult those supporting the decree and the bill (even though he was actually among them), saying that “if you cared about justice, you would start, as did the First Duma, with repeal of the privileges of the gentry.”61 What useful purpose could he have expected to achieve with the implication that the active proponents of the bill didn’t care about justice? And Kerensky’s comparison to the First Duma was way off. As Maklakov pointed out, it had done nothing like repeal of the gentry’s privileges, though it had entertained and sent to committee any number of general proposals to be developed into bills.62 Finally, it was absurd of Kerensky to pretend that he favored complete removal of all distinctions: if that occurred, peasant allotment land would, like ordinary property, be fully marketable to non-peasants as well as peasants, while in fact Kerensky and his fellow travelers staunchly opposed full marketability, believing it would lead to peasants’ selling off their land and falling into penury.63
Two nonsubstantive aspects of Kerensky’s speeches are striking. First, he often gives a slanted version of a supposed quotation from Maklakov (from either the Report or his speeches in the Duma), and when called on the distortion produces a bowdlerized version of the initial statement in defense. Maklakov was probably foolish to call him on any of these, but one can understand his irritation. Second, while his own speeches were wall-to-wall ad hominem arguments, he reacted with high dudgeon to the slightest criticism of himself. A thin skin doesn’t look well on a bully.
Maklakov’s wind-up on June 9 is worth quoting:
Between Kerensky and his fellow travelers and me there is no common language. And the reason is quite clear. We have completely different tactical positions. Mine is to advance this law, not to make beautiful speeches. And to advance it means to keep it within its boundaries and to remove all that would likely destroy it. While we live in a constitutional order we must know that constitutional life requires compromise. Kerensky has a different position. He would be glad if the Duma rejected the law, and threw off the mask, as they like to say. This would expose the illusion and show that it’s impossible to hope for peaceful legislation in a June 3 Duma. Of course in truth the peasants would gain nothing, but then they could read his attractive, beautiful speech. . . .
Sometimes I listen with great surprise to the praise of the First Duma that comes from the benches of the extreme left. The position that its fellow travelers had taken at the time was that their task was to discredit the Duma, and they couldn’t find enough swear words to reproach it for its timidity, its pliability, its backwardness. And when the party to which I belong proposed a law requiring that public meetings be allowed without the government’s permission, the left called this a prison law. Perhaps if enough time passes you will have a kind word to say about the decree of October 5.
And I don’t doubt that you, Alexander Fedorovich Kerensky, will enjoy cheap laurels, but laurels all the same. You will have success for a day. But the main thing is that it is easier to give the most eloquent speech than to resolve even the smallest question in peasant legislation. (Applause from left, center, and the left part of the right.) But woe to the popular legislature that believed that by such acts of legislation [the sort of broad proclamation favored by Kerensky] one could resolve the peasant question, woe to the country that, sympathizing with you, failed to understand that by such measures freedom cannot be obtained: freedom isn’t easily secured—by these measures you might win a battle, but you would always lose the campaign. (Stormy and prolonged applause from left, right, and center.)64
Typically Maklakov received applause from the left and perhaps the center, plus, rarely, from “scattered benches” on the right. Here his speech seems to have resonated across the spectrum.
One cannot reach a final judgment on a political figure simply from his performance in a single two-week debate. Certainly I don’t want to suggest that Maklakov would have been able to succeed where Kerensky so obviously failed—in leading the Provisional Government to a just peace and a stable, liberal form of government. But it was members of the Fourth Duma, most of them likely present for large portions of the June 1916 debate, who chose the Provisional Government’s first cabinet. What could they have been thinking?