(1999) JLP 43: 57-87

POPULAR DEVELOPMENT OF PROCEDURE IN A DUAL

LEGAL SYSTEM:

‘PROTECTIVE LITIGATION’ IN RUSSIA'S PEASANT

COURTS, 1889-1912

Gareth Popkins

Abstract

On the emancipation of the serfs in tsarist Russia in 1861, some powers of self-government were accorded to former serfs at the levels of the village and, above this, the volost’. The latter had a court of law administered by untrained peasant judges, assisted by a scribe. The judges were required to determine cases according to a mixture of statute, unwritten local custom, agreements in the volost’ records, and judicial ‘conscience’. In 1889 the jurisdiction of the volost’ courts was extended. Recent archival research shows that, at least in the areas from which records have been studied, villagers made increasing use of the courts up until their abolition in 1917.

Imperial Russian law provided for a ‘protective’ procedure which enabled a court inter alia formally to confirm an applicant's inheritance rights, whether or not there was a current dispute. Research shows that, especially after the reforms of 1889, peasants applied with considerable frequency to the volost’ court for this purpose. The legal authority for the court's exercise of this function was uncertain, and it seems likely that the courts were acting in imitation of the general legal system to meet a widespread demand. Sometimes the decisions were publicised by announcement in the village assembly. The procedure was used disproportionately by women claimants.

The study of the records of specific cases suggests that this form of procedure was used as a means of influencing power relations at the village level. In this situation in which plural forms of law, and different judicial institutions coexisted, applications to this court could be used to gain advantages in a person's property relations.

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