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The Journal of Legal Pluralism and Unofficial Law

ISSN: 0732-9113 (Print) 2305-9931 (Online) Journal homepage: https://www.tandfonline.com/loi/rjlp20

Popular Development of Procedure in a Dual Legal System ‘Protective Litigation’ in Russia’s Peasant Courts, 1889–1912

Gareth Popkins

To cite this article: Gareth Popkins (1999) Popular Development of Procedure in a Dual Legal System, The Journal of Legal Pluralism and Unofficial Law, 31:43, 57-87, DOI: 10.1080/07329113.1999.10756529

To link to this article: https://doi.org/10.1080/07329113.1999.10756529

Published online: 02 Dec 2013.

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POPULAR DEVELOPMENT OF PROCEDURE IN A DUAL LEGAL SYSTEM ‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS, 1889-1912 Gareth Popkins This article presents the results of research into the process of the confirmation of inheritance claims in Russia’s courts of the volost’ (or ‘rural administration’) between 1889 and 1917.1 The rural population, unbidden by the state, transferred a procedure from the general courts across the barrier created by the country’s dual court system and into the peasant-run volost’ court. By the end of the period there were about ten thousand volost’ courts in European Russia. They were the most accessible forum of state-backed justice for the vast majority of Russians and estimates suggest that members of as many as one third of households a year appeared before them, as either parties or witnesses. The study begins with a brief description of the institution, its place in the wider late-tsarist legal order, and confirmation procedure. Hitherto unpublished statistics then help to establish the scale of the court’s confirmation of inheritance rights. Illustrative case-studies drawn from the court records of several provinces, especially St. Petersburg (north west) and Tambov (central agricultural region) form the core of the investigation. They

1 The author is grateful to the British Academy/Humanities Research Board, the British Council, the Finnish Ministry of Education (C.I.M.O.), the Nuffield Foundation and the Learned Societies Research Fund, University of Wales, Aberystwyth for their support of the research on which this article is based. Thanks for help using the Russian archives are due to Academician Boris Anan’ich, N.A. Chekmareva, G.A. Ipolitova, Professor P.S. Kabytov, Professor Aleksandr Kamkin, Dr Vladimir Lapin, Professor Boris Mironov, Professor Lev Protasov, Professor Boris Starkhov, A.D. Ukhova, S.I. Varekhova and others.

‘PROTECTIVE LITIGATION’ IN RUSSIA’S PEASANT COURTS Gareth Popkins

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provide insights into the types of situation and litigant that drove on the procedural transfer. Court Jurisdiction and the Bases of Law Until 1917, Russia remained a society organised on the basis of legal estates. The emancipation legislation of 1861 created a two-tier system of self-government for the former private serfs, who were declared members of the new estate of ‘rural residents’ (sel’skie obyvatel’i). Acts of 1863 and 1866 brought tillers who lived on appanage lands (udelnye krest’iane) and on state property (gosudarstvennye krest’iane) respectively under the new system alongside the former private serfs (all three groups together comprised a little over eighty per cent of the population). The lower of two layers of the rural self-government was the village (sel’skoe obshchestvo), with its assembly and elected officials. The volost’ was the upper tier and had an assembly, a small permanent administration and court of law. Together the village society and the volost’ had a wide range of responsibilities in matters of importance to the state and local interests such as taxation, fulfilling the annual conscription quota, and maintaining emergency grain stores and roads. For almost the first thirty years of their operation, the new institutions had little effective supervision from above. In 1889, however, the office of land captain (zemskii nachal’nik) was created. The captain was usually of gentry stock and exercised wide supervisory and disciplinary powers over the rural inhabitants and their organs of self-government. Like the rest of peasant self-government, the court was initially financed by the villagers alone. It was staffed by untrained and often illiterate judges who were elected from among their midst. A volost’ scribe assisted the judges. The law stipulated that sittings take place at least once a fortnight. After the 1889 reforms the villages lost the right themselves to elect the judges. Under the new rules each village elected at least one man to a list of candidate judges, and the local land captain selected and confirmed the appointment of four jud