Language Matters. Studying Legal History in the Russian Empire

My research on the Russian Empire’s courts in the second half of the nineteenth century raises the crucial issue of language, both as a subject of research and as a methodological challenge.  

As I discuss in “The Lawful Empire”, the court system introduced by the Judicial Reform of 1864 developed and spread according to a spatial logic, expanding gradually from St Petersburg and Moscow to other provinces in European Russia, and eventually into more distant borderlands (for details, see here). In so doing, the new courts did not do away with legal pluralism, which allowed for and even encouraged indigenous legal forums in some regions and areas of (mainly civil) law that made ample use of languages other than Russian. Yet, the geographical expansion of the imperial courts still furthered legal unification to a significant degree, and their establishment in culturally diverse regions brought large numbers of non-Russians under their jurisdiction. 

 

Language in the courtroom

Formally, Russian was the only language allowed in the reformed courts; all officials had to speak it, and only people who understood sufficient Russian to follow the cases could be called up for service on the newly introduced juries. This monolingualism, however, soon met with the linguistic reality of the empire, in which non-Russians constituted a majority, namely 57 percent of the population, by the late nineteenth century. The situation, described by some jurists later as an issue the reformers had simply not thought about, required practical solutions. For cases in which the litigants or accused did not understand Russian, the law prescribed the use of interpreters. This arrangement worked in some cases, yet in regions as diverse as Crimea the court neither had the financial nor the human resources to meet the demand for constant interpretation. Either way, intermediaries were no solution for regions such as Bessarabia, the Baltic Sea provinces and especially Poland, where not only the litigants and witnesses but also the judges and lawyers tended to be native speakers of Polish, German, and Romanian (not least because few Russian jurists wanted to serve there). In practice, therefore, local languages were constantly used in state courts because the system would not have worked otherwise. It was a glitch the reformers had not foreseen.

Only in the Baltic provinces was linguistic diversity ever formally recognized. In May 1880, German, Estonian, and Latvian were admitted for both written and spoken court procedure. As before, though, there was a hierarchy of languages: in appeals sent to St. Petersburg, the key summaries had to be provided in Russian; accompanying materials (interrogation records etc.) were admissible in German, the language of the Baltic elites, but not Estonian or Latvian (which were considered less “cultured”), and had to be supplied with a Russian translation.

 

Tatar as court language

Most of the court activity examined in my research is from the two regions of Kazan/Middle Volga and Crimea, both of which had large populations of Muslim Tatars. That raises the question of the use of Tatar – a Turkic language then written in Arabic letters – in the reformed courts. Did the Tatar language feature at all in these courts? By the mid-nineteenth century, this language had long played a key role for the imperial state, not least in communicating with its Muslim population, and Tatars fulfilled important functions in the local administration, economic elite, and judiciary. Many new laws were quickly translated into Tatar (and circulated between Kazan and Crimea), to make sure that their implications were fully understood. That said, just as elsewhere in the empire, in Tatar regions the reformed courts were designed as monolingual, Russian-speaking institutions. In some districts of Kazan province, Tatars consistently made up more than 50 percent of the jurors. A small number of Tatars served as lawyers and surrogate judges, but far more importantly, they appeared as litigants, injured parties, and witnesses. In many of the cases I studied, Tatar was used in the courtroom by people who did not speak Russian, or spoke it poorly, but the statements were immediately translated by interpreters and never recorded in the original (the minutes of trials and interrogation records usually say things like “X answered in Tatar that…”). Tatar, along with other local languages such as Chuvash or Mordvin, could be used when native speakers had to swear an oath, and Tatars in court usually signed their names in the Arabic script; but unlike in the Baltic provinces, cases could not be brought to the courts’ attention in local languages, and the only accompanying documents admissible in Tatar were deeds of purchase signed under Tatar rule (which de facto limited these documents to Crimea, where the Crimean khanate had only fallen in 1783). I did not see a single Tatar-language document in all the cases I came across in Kazan, not even Tatar-language originals with Russian translations. What was noticeable, however, was that some of the Russian-language documents addressed to the court were full of grammar mistakes and clearly not written by native speakers. Tatar was thus, at best, an informal language in the new courts. Surely it was used among jurors and litigants, by heckling members of the audience (as many trials were public events), or by Tatar officials to give quick, off-the-record explanations, but it was not formally admissible in court. 

 

Tatar opinions on legal matters

While court documents are full of (usually translated) Tatar voices, contemporary publications from the 1860s to the 1890s, unfortunately, are not. As I explained in my previous blog entry, freedom of conscience and freedom of the press only came to Russia with the civil rights introduced by the 1905 revolution. Prior to this, with very few exceptions such as the Crimea-based newspaper Tercüman (ترجمان‎, “Translator”), which was simultaneously published in Tatar and Russian, Tatars could only publish on matters of Islamic thought and religious practice. Famous Islamic scholars such as Şihabaddin Mərcani (1818-1889) in Kazan, who also held a range of religious functions, produced many texts on religious questions while also addressing broader matters such as education. He even participated in sessions of the new imperial courts, administering Muslim oaths. Yet, I have not come across any writings in which he discusses the reformed courts directly (if anyone has, please let me know!).

After 1905, Tatar-language publications mushroomed, especially in Kazan and Orenburg. Newspapers like Nur (نور, “Light”) and journals such as Shura (شورا) now examined a wide range of socio-economic, religious, and political problems, many of which touched upon legal questions. Satirical magazines like Yashin(ياشن, “Lightning”) did the same with a different tone. Most importantly perhaps, while the aforementioned journals were mainly used by Islamic scholars for expressing their opinions, the legal journal Hoquq va hayat (حقوق و حيت, “Law and life”, see below the cover of no. 5, May 31, 1913), published in Kazan from 1913 to 1914, became a vehicle for Tatar jurists trained at Kazan University to acquaint readers with the imperial court system more broadly. It went out of business after little more than a year, mainly for lack of subscribers. 

 

For a number of reasons that I discussed in a blog entry last week, my book ended around 1890. As a result, I did not include the rich Tatar press of the post-1905 period in the analysis (but may well do so in follow-up articles tracking developments into the early twentieth century). By this time, the courts were no longer the institutions introduced some forty years earlier. The focus of Russian-language articles on the judiciary was also very different from what it had been in the 1860s.

Scholars of intellectual history have an advantage when it comes to sources because intellectuals love telling the world what they make of it. But I found it necessary not to write another book on Russian or Tatar scholars (of which there are many), and to focus instead on the rural masses. This choice leads to a lack of (unmediated) Tatar voices, which is both unfortunate and, in my view, unavoidable for the case at hand. Yet, this is a problem that scholars of rural society have always faced. In both Crimea and Kazan, the overwhelming majority of Muslim Tatars were farmers or small-town craftspeople, traders, and day laborers, who did not to sit down and take notes on law and legal practice. They were also very diverse, of different age, gender, and sexuality. Some cared about religion, others did not. Vodka was an important part of daily life in both Russian and Tatar villages. Thus, the detailed court records and other forms of state documentation, despite all their biases and power asymmetries, perhaps give these people more of a voice than intellectuals ever could.

-- Stefan Kirmse

Exploring Law in the Russian Empire: Spatial and Temporal Choices

Today’s blog entry is about choices. How do you choose the period you focus on in your historical research, and which regions – in an empire as vast and diverse as the Russian one – do you select as case studies? More than that: What exactly is the case study? Is it the region itself, a particular group of the population in that region, or specific experiences made and shared by this population? In what follows, I would like to show why these questions are important and how they have affected my work over the years.

My research on law and legal practice in the Russian Empire has focused on courts in Crimea and the Middle Volga region around Kazan from the mid-1860s to the mid-1890s (for my recent monograph, look here). The two regions stood out for their cultural diversity and were home to sizable populations of Muslim Tatars. There are both practical and historiographical reasons for this spatial and temporal focus, which I explain below. I will also address the question to which degree my study can be considered a comparison of two regions. But let me start with the temporal focus.

 

Examining the "reform period", at a price

Despite my frequent reference to “late tsarist Russia,” my work’s center of gravity is the 30 years after the Great Reforms of the 1860s. Much has been written about the turmoil leading up to, and beyond, the 1905 and 1917 revolutions while far less attention has been given to more stable political periods. The three decades after the Great Reforms were one such period, even if they were not immune to terrorist activity, the frantic search for real and imagined revolutionaries, and occasional revolts. Outside the metropolitan centers and some border regions, the population was far less involved in political turmoil than before or after these years. Academic writing has tended to explain the revolutionary fervor in early twentieth-century Russia as the result of smoldering discontent; yet the evidence for such a causal link is scanty. It seems to me that revolution is certainly thinkable as something that skillful actors brought about in parts of the empire after 1900 despite the relative stability of the previous decades. Surely, there was discontent, but as many cases in modern history show, discontent does not mean revolution. In short, it makes sense to study the three decades in question in their own right, and not as a prelude to twentieth-century upheaval.

However, the reason for largely ignoring the twentieth century in my research is not purely historiographical. It is also rooted in the availability and nature of sources. Let me stress two key points. First, the last twelve years of imperial rule (1905-1917) were highly specific, and this specificity had an impact on courts, as evidenced, for example, by crime statistics: between 1880 and 1905, the number of ordinary criminal cases processed per year was around 3,000 in Crimea and around 4,000 in Kazan before they took a plunge after the 1905 revolution. With changed jurisdictions and court procedures, they soon stood at a mere 500 annual cases in Crimea and 800-900 in Kazan. At the same time, the courts became more and more concerned with state security. In Kazan, political ‘crimes’ suddenly began to make up 40% of the caseload. During the last twelve years of empire, in other words, the judiciary was no longer the same system the Great Reforms had introduced.

Second, the Kazan and Simferopol archives reflect the 1905-1917 period in a specific way: records hardly contain any ordinary cases, despite the fact that hundreds of such cases were still processed every year. The reason for their disappearance was probably rather mundane. Since most of these files were re-organized by archivists during the Stalinist period, it is not unlikely that decisions were taken at this time to preserve political files (to highlight the police-state character of the hated tsarist administration) and to remove non-political files from the shelves. In the decades that followed, this trend persisted: records in Crimea and Kazan confirm that non-political cases were destroyed in large numbers in the 1980s. As a result, for the early twentieth century, there is now but a handful of ordinary cases to explore, which makes a qualitative analysis of circuit court activity during this period virtually impossible.

Either way, the decision to exclude the early twentieth century, by and large, from my analysis came at a price. Since the 1905 revolution resulted in freedom of the press and the freedom of conscience, it also led to the emergence of a Tatar-language press. Prior to this, Tatar opinions could, for the most part, not be expressed in writing on matters other than Islam. Therefore, the courts introduced in the 1860s, which were seen as a secular matter regardless of the continued role of religion in civil law, were not and could not be debated in Tatar publications, even if they affected millions of Tatars. They only became a matter of Tatar debate after 1905, and soon they were indeed discussed in great detail in a range of new Tatar-language journals. But since these journals were a post-1905 rather than a reform-period phenomenon, I felt it would be inappropriate to include them in the “The Lawful Empire”. I will address this issue of language and voice, and related future plans, in more detail next week.

 

Why Crimea and Kazan?

My regional choices were in some ways easier, but also raise questions. The point was to choose (at least) two ethnically and religiously diverse regions of the empire and explore the fate of the reformed courts. Classic borderlands such as Central Asia or Poland and the Baltic states were out of the question because the new courts arrived there much later, and only in amended form. Kazan, the ancient capital of Muslim Tatars on the Volga River, and the southern peninsula with its strong population of Crimean Tatars lent themselves to this enquiry for a number of reasons: first, in both regions, the non-Russian population was not only very sizeable at over 30% but also predominantly made up of Muslims (which fit my long-standing research interest in Eurasian Muslims); second, both were “intermediate terrains”, different from the imperial heartlands as well as more remote borderland regions; third, both were endowed with the new legal order at roughly the same time (1869 and 1870); and finally, at a more practical level, both had very accessible regional archives that held a wealth of useful documents. It was a lucky coincidence that my fourth and final extended stay at the Crimean archive ended in November 2013, just before political developments spun out of control there. I have not returned to Crimea since then and while I know that other researchers have, the political circumstances raise too many ethical questions for me. I have therefore begun to focus on other locations and archives in the Black Sea region. But that is a different matter...

Can my work as exemplified in “The Lawful Empire” be considered comparative then? I think the answer is yes and no. Yegor Lazarev, in his insightful comments on the book at the last LSA annual meeting, rightly pointed out that the Crimean case is given a little less attention. This is undoubtedly true. I could give an easy answer and say that two of the issues that are discussed at quite some length in the book – the emerging public sphere and law department at Kazan University, and the Tatar riots of 1878 in Kazan province – simply had no equivalent in Crimea. But this is only half the truth. One could have compensated for this by giving more attention to a crucial Crimean issue, namely emigration, forced exile, and return migration, which kept the imperial courts busy for quite some time. I chose not to do this, not only because this exodus has been studied for years, but also because the book was never designed as a systematic comparison.

When I submitted an earlier version of the manuscript to Humboldt University for my habilitation (German professorial exam), I was encouraged by the reviewers to make the comparison more explicit, and I subsequently heeded this advice. “The Lawful Empire” does engage in quite a bit of comparative analysis; for example, in its discussion of changing images and ideas of Crimea and Kazan, the local implementation and reception of legal reform, mechanisms for accommodating diversity, and land disputes in the two regions. Similarities and differences emerge in almost every chapter. Yet, I would still argue that it is, in many ways, one rather than two case studies and that the slight imbalance may thus be forgiven. It is less a book about two regions or specific populations; rather, it is about the gradual spread of the reformed courts into “intermediate terrains” and about the new equalities and inequalities this expansion created. In a way, one could have focused on either Crimea or Kazan and still retained much of the argument; and yet, I believe that the discussion of material from both regions, along with the implicit and explicit comparison, adds rewarding layers of depth and nuance. 

Ultimately though, this research should be placed beside related studies in the rapidly growing field of law and legal practice in tsarist Russia, a comparison that will bring to light striking differences. The relatively inclusive approach pursued by the courts in Crimea and Kazan provides a contrast to continued segregation along much of the empire’s Western border, most of Siberia and Central Asia. Muslims were not all treated the same: in the empire’s deeply territorialized form of rule, their status and life options depended greatly on where they lived, and some became more integrated than others.

--Stefan Kirmse