Lessons from Maklakov for Advancing and Protecting the Rule of Law, by Stephen F. Williams

by Peter Conti-Brown — Monday, Nov. 20, 2017

The following post comes from guest blogger Stephen F. Williams, a judge on the US Court of Appeals for the DC Circuit

Studying Maklakov’s efforts on behalf of the rule of law inevitably reminded me of issues relating to the rule of law in the United States today.  I’ll quote a couple of remarks about him—criticisms—by two of his adversaries, and then recount his role in a couple of debates, one in 1907 and the other in 1916.

One source of criticism was Trotsky, who sneered at him as being “above all parties.”  This sounds like praise; why was it a sneer?  It was Trotsky’s way of saying that Maklakov had failed to join the left’s vehement denunciations of the regime.

A second criticism came from Paul Miliukov, leader of the Kadets, and a rival of Maklakov’s—in the sense that they competed for the soul of the party, though Maklakov never really had a chance: Miliukov was more closely aligned with party sentiment.  Miliukov criticized him for believing unduly in compromise, 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.”

A couple of side notes on this.  The ability to see two sides of an issue is one that Maklakov shared with the most famous of his lady friends, the Bolshevik Alexandra Kollontai.  Though far to the left of Maklakov, she similarly rejected party discipline.  The relationship itself might be said to show an ecumenical spirit.

And Maklakov linked the potential validity of two sides of a dispute directly to constitutionalism.  He liked to quote Bismarck’s remark that compromise is the essence of constitutionalism.  In the book I amplified Bismarck with a quote from Bill Clinton: “If you read the Constitution, it ought to be subtitled: ‘Let’s make a deal.’”

Perhaps Maklakov’s most famous speech was his attack on the field courts martial  in the Second Duma.  These could easily be called kangaroo courts.  Once charged, the supposed culprit was tried by a military officer with no legal training, was almost always condemned to death, and enjoyed no right of appeal.  Although the prime minister, Stolypin, was not a fan of the law (Nicholas II had insisted on it), he defended it in the Duma.  And had some grounds.  Terrorists were assassinating about 300 officials per month.

Maklakov’s speech was a kind of Jiu Jitsu.  Stolypin, supporting the courts, had argued that, in the interests of protecting the state from revolution, it was sometimes necessary to sacrifice private interests.  But Maklakov accurately recognized Stolypin as favoring a strong state dedicated to advancing ordered liberty.  So he took Stolypin’s argument about the occasional need to sacrifice private interests and turned it around.  He argued that the field courts martial were destructive not merely of private interests but also of the state itself.  Anticipating the words later put into the mouth of Sir Thomas More by the playwright Robert Bolt in A Man for All Seasons, he said:

Striking at the revolution, you have not struck private interests but have struck all that protects us, the courts and lawfulness. . . . If you defeat the revolution this way, you will at the same time defeat the state, and in the collapse of revolution you will not find a rule-of-law state but only solitary individuals, a chaos of state breakdown.

The speech appears to have reached Stolypin, who responded with hints of readiness to cut back on the use of the courts, if possible in exchange for Kadet criticism of revolutionary terror.  The Kadets never made such a response, and while the use of the field courts martial tailed off, that was at least in part due to legal time limits on it.

The second debate was over a bill (introduced, incidentally, by the tsarist government) to establish as a real law a decree that Stolypin had issued in 1906.  The decree liberalized the rules that restricted the options of peasants as members of a peasant “estate,” and the government’s bill pushed the original decree a bit further.  The legislative committee guided by Maklakov had taken the bill still further in that direction.

The debate in the duma featured many interventions by Alexander Kerensky, later to be head of the government that was in charge between the liberal revolution of February 1917 and the Bolshevik revolution of October.  Kerensky argued at length and eloquently, in the course of it displaying his character as that all-too-common combination—the thin-skinned bully.  His remarks were consistently about exacerbating old divisions and never about making realistic efforts to improve the legislation.

Kerensky’s favorite trope was to stress that the 1906 decree was the work of Stolypin, suggesting that somehow it must therefore be bad—it being an article of faith on the left that Stolypin was evil incarnate.  As Maklakov was advancing the bill, some of this was intended to rub off on him.  (Oddly Kerensky conceded that the decree had been a good step forward, and that Maklakov’s bill would be a step forward from that.)  He spent much time putting words into Maklakov’s mouth that Maklakov had never uttered.

In reply to this innuendo Maklakov spent little time trying to correct Kerensky’s false claims of what he had said.  As to Stolypin, he said that he opposed Stolypin when he thought he was wrong but supported him when he thought he was right, as on the decree at issue in this debate.  He thought it made sense to judge an issue on its merits.  He pointed out the difference between his and Kerensky’s goals in the debate: he sought to get a useful bill passed, Kerensky sought to deliver a beautiful speech.

Here’s a possible takeaway for modern times: Ask yourself, “How would Maklakov say it?”

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About Peter Conti-Brown

Conti-Brown is an assistant professor at The Wharton School of the University of Pennsylvania. A historian and a legal scholar, Conti-Brown focuses on central banking, financial regulation, and public finance.

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