The Reformer and the Rule of Law

Speaker 1:                           Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by the Federalist Society's Practice Groups, was recorded on Wednesday, January 17, 2018.

Laura Flint:                          Welcome to The Federalist Society TeleForm Conference Call. This afternoon we will be discussing Judge Stephen Williams newest book, The Reformer: How One Liberal Fought to Preempt the Russian Revolution. My name is Laura Flint, I'm the Deputy Director of Practice Groups, here at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

                                                Today we are happy to have with us, the Honorable Stephen F. Williams, Senior United States Court Judge, of the U.S. Court of Appeals, for the D.C. Circuit. And Professor Julia Fromholz, Director at the Rule of Law and Governance Program at Arizona State, Sandra Day O'Connor College of Law. After opening remarks from Professor Fromholz we will go to opening remarks from Judge Williams and then question and answers. Thank you for [inaudible 00:00:55] with us. Professor, the floor is yours.

Prof. Fromholz:                 Thank you, Laura, and it's a pleasure to have this opportunity to talk with you, Judge Williams, uh, about your account of Vasily Maklakov in your new book, The Reformer. For the listeners, a brief background. Vasily Maklakov was a lawyer and member of the Duma during the years leading up to the October Revolution. And afterwards he was a member of the Russian émigré community in France. And he sought to establish a Constitutional State, and was a great proponent of the rule of law.

                                                Judge Williams, I-most listeners will know you as a highly esteemed D.C. Circuit Court Judge, yet you're writing a book about Russian History. Can you tell us about that?

Judge Williams:                 Well I'd be-I'd long been interested in Russia, when I was growing up. Uh-uh, Ru-when I, when I was first politically conscious at all, Stalin was ruling Russia. Uh, his rule was a frequent topic of dinner table conversation in our household. Um, and then when the Soviet Union collapsed, uh, I was naturally very interested in what would happen next, as I guess we all were.

                                                And I thought it would be interesting to look at um, prior reform efforts, and-and see how they worked out or didn't work out. And-and what I lit upon there was the Stolypin agrarian reforms, which were an effort to enable peasants to turn their interest in a commune into private land. Uh, and so I-I worked on that, and-and in the course of doing that, or in order to do that, I'd learned at least enough Russian to read it, and uh, that came out in 2006, the 100th Anniversary of the Stolypin Reforms. And uh, then I-then I was thinking, as I-as I finished that book, well, it was a little tactical, a little wonky, and maybe it would be nice to look at the same period, through the eyes of an actual human.

                                                Stolypin wasn't really the hero of that book, he was sort of a-an important player, but not-not a hero. Um, so I-I started to ... I looked around for uh, someone who would, whose-whose eyes would be useful to look at the whole pre-revolutionary period. Which ah-and I want to say on the-on the pre-revolutionary period uh-uh-the, it seems to me just uh, dripping with missed opportunities. And um, so I wanted to look at those.

Prof. Fromholz:                 Thank you, and-and I-we are lucky indeed, that you chose to uh, casually learn Russian, in order to uh, do research and then produce these two books. And you, I think you've had some experience yourself, with rule of law work in Russia. Could you tell us a bit about that, and-and about what you learned?

Judge Williams:                 Well, in-in a way that-the sharpest lesson happened on the first day. Um, the-the State Department organized a uh, what's called a rule of law trip to Russia. In which five uh, U.S. Judges, including me, uh went over to Moscow to have talks with various people, judges, professors, um, well judges and professors almost entirely. Uh, and so we arrive in the airport uh, in Moscow, somewhat groggy from the trip. And we're shunted off to some sort of waiting room, it's unclear what it normally functioned as. Uh, it was a bit dreary, but it, more than dreary, it was mysterious, because quite a long time we weren't told why were we being-we were being put there.

                                                Then gradually the-the word came from our State Department handlers that the uh, Immigration Authorities in Russia claimed there was something wrong with our Visa's. It was never clear what was wrong with the Visa's, but it-it did become clear that whatever was wrong, could be cured by the State Department paying $100 per Visa to have it remedied. Uh, and this-this stru-I mean, I was-I was, as I say, groggy from the trip. Uh, and I wasn't as suspicious of uh, the Russian Bureaucracy as I would be today.

                                                But even then, it did seem very, very odd, and likely to be part of basically a hold up. Uh, run by local Immigrition-Immigration Officials to make a bit of money on the side. Uh, anyway, the State Department paid up and-and the whole trip proceeded. Uh, and-and as I've thought about it, ever since, it seemed to me ... speak of missed opportunities, we-we missed a great opportunity to teach a small lesson to the Russians, namely that we don't like getting held up. And I-I think the trip should have been canceled, we should have been flown back immediately, then and there. Or at least we should have said that's what we'd do uh, if this $100 fee was not uh, eliminated.

Prof. Fromholz:                 It-it seems unfortunate indeed, that-that uh, the purposes of the trip were-were somewhat undermined uh, by the actions of the State Department in the airport. And so what-

Judge Williams:                 And of course by the actions of the Russians. I mean, above all, them.

Prof. Fromholz:                 Yes, yes of course. Uh-

Judge Williams:                 Yeah.

Prof. Fromholz:                 But if the State Department is-is bringing you there, helping you be there to-to press for lar-for-for rule of law reform it's-it's too bad not to start at the very beginning of the trip.

Judge Williams:                 Yes, yes.

Prof. Fromholz:                 So, and you, with that as background, and you mentioned that um, you-when you were researching and writing the Stolypin book, you ... or uh, the land reform book, highlighting Stolypin, you wanted to um, find a, someone for the subject of a biography. What was it about Maklakov that-that appealed to you?

Judge Williams:                 Well, I-I was looking for someone um, who showed some indication of strong enthusiasm for the rule of law, because I thought that was a critical deficiency, in Russia, then as now. Um, and so I-I sort of looked into a number of people. I briefly got interested in a Philosopher, who was probably, I'm gue-in fact certainly uh, more Libertarian than Maklakov, but he seemed not to have uh, any actual experience uh, in the real world.

                                                So he didn't, he never had an occasion to try to put his Libertarian ideals into practice. Uh, whereas it became clear that uh, from you know, very quick reading, about Maklakov, that-that he did, that he-he very much had occasion to. In fact, I mean, his life was a series of occasions of trying to put uh, his ideals uh, into force, or into practice, into you know, enactment.

                                                Um, and uh, so I-I plunged more deeply into him, and-and happily. I mean I-I-I don't think I-I've missed somebody. Uh, but at least as-as my research progressed I never encountered anyone who had the combination of his intelligence, his eloquence, his grasp of what the rule of law is really about, uh, his effectiveness in trying to get it uh, enacted. Um, and-and I will say, his charm. I-I find him a very charming person uh, and in a way, wha-if you write a biography of someone, you're spending a lot of time with them. Um, I'm very happy to have spent a lot of time with Vasily Maklakov.

Prof. Fromholz:                 Well, his charm certainly comes through in your account of him. One are the themes that you draw out in the book, uh, about Maklakov's work, is and-and his focus is experience, and specifically that the reformers of which he was a leading one, um, needed to have ex-have experience with negotiation and compromise. In-in the-as the book shows, few of the reformers had this experience, which led to problems, because they were too rigid in their-in their negotiations.

                                                And-and the intelligent-the intelligentsia at the time, was really opposed to compromise and they're described in the book as rigid and utopian. What-what was it about Maklakov's background, perhaps in his family, perhaps as a trial lawyer, perhaps something else, that taught him the need for compromise?

Judge Williams:                 Well I-I think his-his childhood certainly had-had an interesting mix of uh, an exposure to an interesting mix of viewpoints. First place, his father combined science, he was a Professor of Ophthalmology at Moscow University, uh, science with management. He was, in part, sort of indirectly, the Manager of the Moscow Eye Clinic. Uh, which incidentally still exists and is still an eye clinic, in the very same building it was in and uh, at the turn of the Century. Um, so-so there was already a-a mixture of um, slightly disparate focuses.

                                                His mother was a highly intelligent and well read woman. And she was quite, extremely ... I think it's fair to say extremely, religious, which was certainly not common in the intelligentsia uh, in that era. So there was already a kind of, in-family uh, clash of viewpoints that um, must-must have taught him that you can have ... people can be very decent, fine people, uh, and yet have uh, fairly different viewpoints. I mean, I think incidentally, that his mother-his mother's religiosity accounts for uh, part of his fathers viewpoint. It's-his father was certainly a scientist, but unlike a lot of the intelligentsia of the period, he was not dismissive of religion, at all.

                                                Um, so and then, I guess uh-a uh, another fairly uh, early learning experience, know-I mean, yeah relatively early, uh, was getting to know Tolstoy. Um, and um, he-he became good friends of Tolstoy. And here was a man whom he, it-it-it would suggest that uh, Maklakov was starry eyed, to say that he worshiped Tolstoy, but he certainly held him in the highest imaginable regard. And certainly any issue of political economy, on which there was overlap, between their viewpoints, so that he was accustomed, from an fairly early stage of life, to the idea that um, you can be very good people, very decent people, very smart people, uh, who it turns out, uh, have different ideas, and they hold them in good faith, and they-it's a good idea to start with that as their working assumption.

Prof. Fromholz:                 There-I'm glad you mentioned Tolstoy, because there's a-there's a nice story in the book, about his-the some of the time he spent with Tolstoy, going on walks um, with him. And could you-could you just tell about that story, it-it reflects well-it reflects well on Maklakov.

Judge Williams:                 Yeah. Yeah, um, no I love that. Um, I-I think it was after he had worked with Tolstoy uh, on providing relief for the peasants in the 1891 famine. Um, that Tolstoy uh, took up the practice of asking uh, Maklakov to join him, on walks through Moscow. And-and during these walks they would-they would talk. I-uh, well I get the impression that uh, Tolstoy allowed Maklakov to do uh, more than half the talking.

                                                So it-and it puzzled Maklakov, why would Tolstoy, who could presumably get anyone uh, in Moscow to walk with him, uh, choose a callow youth like himself uh, to do this? And he found an answer later, in a conversation with Tolstoy, about why Tolstoy uh, went around his estate, Yasnaya Polyana, um, on a bicycle. Uh, and not by horse or possibly by car. Uh and the answer from Tolstoy was that if he went by bicycle he had to focus on that. And it prevented him from uh, thinking in the sense of pondering problems. Uh, serious problems that he had to work out for himself.

                                                So it gave his mind a rest, whereas uh, on horseback or driving he wouldn't have to focus so much. So Maklakov saw himself, uh, as providing the equivalent of a sort of mild, mental diversion uh, that bicycling around Yasnaya Polyana uh, would have involved. Which I-I thought um, you know, is a very uh-ug-it's a very self effacing uh, viewpoint. Uh, but in a sense correct, too, probably.

Prof. Fromholz:                 Yes, it-it-it's a charming story. And um, Maklakov later was uh, admired for his oratorical skills and he ... one of the arenas in which he used those, was in taking on rather unpopular cases, as a lawyer. Do you see any cases that he took on as particularly formative for his later reform work?

Judge Williams:                 Hm. That's interesting. Um, well he-he certainly in-in uh, in arguments in the Duma, I mean one thing that comes into mind, in response to your question is, religious freedom. And he-he did have some cases for uh, what should we say, religious oddballs doesn't seem fair, um, deviants. People-people whose religious views uh, was-were-were certainly not uh, strict Orthodoxy, but they-but they also had quite firm religious views. Such as the Old Believers who were a-a dissipant sect from Orthodoxy. And he-he got the experience of not only seeing what their lives, and their thought process was like, uh, but also the kind of frustrations that they encountered uh, at the hands of the Orthodox majority and the police, who tended to back up the Orthodox clergy, whenever possible.

                                                Um, so I think-I think that certainly is sort of a direct feed in, really. Between that-that set of clients, who were brought to him uh, mainly by Tolstoy. Uh, and his later work um, in-in that field. It-the other thing that came with-with those trials, was exposure to it's called the jury out in countryside. The-the least sophisticated jury that-that-that was around. Uh, and he-he learned how to speak with them, in a way that was convincing, and direct, and-and he-he emerged with a high respect for them, as jurors.

                                                He thought that they-they focused, they went to the right answer. They-they asked the right questions, sort of, or at least appeared to be thinking uh, along the right lines. So-sometimes he talked with them after a trial. Um, so I think it-that-that helped him um, it helped him couch oratory to particular audiences, which he-which he had to do, of course throughout life.

Prof. Fromholz:                 Interesting, and one of the audiences of course, that he had to deal with, or maybe not a direct audience for his oratory, but um, an audience for the reform was Nicholas II. And one of-one of the other themes that you draw out of his work is good faith. And despite the reforms that Nicholas II implemented, he never seemed committed to the spirit of a limited monarchy.

                                                And Maklakov argued that the October Manifesto, which Nicholas II had uh, issued, would work only if the Government and others acted with good faith. Meaning respect for the rule of law and willingness to seek compromise within the law. Do you think that the reformers could have, in some way, moved the Government toward acting with better faith?

Judge Williams:                 Well, this-this is of course the great, I mean on of the great if's of the period. Uh, if there had been less intransigence on the Reform side, might there have been less intransigence on the Regime side? And I-I think, uh, first place, to be honest, I think one can't possibly know. Um, but I also think that the ... two-two things. One is um, you know there are all these studies that show that when two people uh, sit down and chat with each other, uh, if-if one is doing a sort of, one kind of pattern, with his or her, uh, a sort of distinctive pattern with his or her legs or arms, the other tends to pick that up, and mirror it.

                                                But I think, you know, we are social beings and we respond to a way of being treated. And if we're treated as a people that it's valuable to talk with, uh, we're-we're likely to become at least, it's likely to move us towards becoming people that it is, in fact, valuable to talk with. Um, so there's that.

                                                Um, the-the other thing is that the ... it-you're always talking of coalitions. The Reformers were not monolithic, the Regime was mon-not monolithic. Uh, to the extent that the Reformers sounded, persistently, like a monolith, and-and really not that different from the Revolutionaries, it was natural for the Regime to think, you know, these people are really hopeless. Uh, but in fact, they represented a-a, broad coalitions and uh, and-and the Regime itself represented coalitions. And to the extent that uh, either side made gestures uh, attracting interest, and sympathy, from elements of the other's coalition, uh, it's-it's hard for me to see how that would not have at least helped make progress.

Prof. Fromholz:                 Okay, and one of the-one of the populations that um, was not seen as valuable to talk with and-and was represented, at least in name, buy some of these coalitions, were the peasants. I think, in the book um, the statistic is that something like 90% of the Russian population at the time was-was in, were peasants.

Judge Williams:                 Yes.

Prof. Fromholz:                 And they um, do you think that the um, the environment of having a very large peasant population, with very few formal rights, made-made Russia in some ways, hostile to the rule of law?

Judge Williams:                 Well it-it certainly meant that you had a vast segment of the population that had no experience of the rule at all-rule of law at all. And I want to make clear that uh, Russia was not bereft of the rule of law, uh, in this period. That it-but the rule of law was weak and it was certainly incomplete. First the rule-the rule of law's always incomplete, we never reach lu-rule of law perfection. But um, it was-it was certainly very weak in Russia.

                                                And-and scarcely applicable to the peasants at all. They-they had one great interest, which was in land, which was natural, because that was the way they uh, were able to uh, acquire their food and clothing. Um, and-and that was not, but they didn't own land. They had interests in land, in a commune, uh, which they worked out uh, the-the-the-the cultivation of which they worked out uh, with the other members of their commune. But no-nobody had, what seems to me, typical of the rule of law, the responsibility for deciding what you do with a particular uh, well, item of property in the-in the clearest case, within the limits of the law.

                                                 And uh, it was-it was simply within the limits of what the fellow commune members would agree to. Um, and if the Courts to which they were subject uh, were the-the least independent of the Russian Courts, so they weren't getting exposed much to the rule of law on that side. Uh, and they were consistently subject to arbitrary treatment by Government Officials, namely the agents of the Ministry of iNternal Affairs, who-who sort of managed them. It's-it's really, in some ways, a uh-a staggeringly improbable way of running a country.

Prof. Fromholz:                 I think that uh, there's an-there's an account in the book also about the peasants that-that and the- rule of law system, that applied to them, that makes clear that in some ways the peasants stood to lose, actually, from rule of law reforms. Um, and this had to do with their, how they could deal with bad actors in their midst. Is it-

Judge Williams:                 Yes, yes. No that's true. Um, I mean, uh-as-as someone who believed that the burden of the state should not be applied to a person, without going through decisions uh, decisions made by an independent actor, such as a judge who is obliged to hear both sides. Um, uh, but that was a-a monstrous violation of the rule of law. But that was the system that prevailed and-and had obviously some advantages for the, kind of, the-the peasants who-who got along, didn't get too drunk, didn't do-do to wild things when they did get drunk.

                                                So uh, in the course of one of-one of the debates uh, essentially on the-the uh, status of peasants, he argued, very strongly, but got some push back from peasants, on uh, eliminating process by which uh, peasants in an area could effectively uh, demand that the Ministry of Internal Affairs ship some bad actor off to Siberia uh, and then the-the Ministry of Internal Affairs had veto power. That was not exercised by, in any kind of legal process. It was simply the exercise of their discretion. So, I mean, that's pretty extreme, when you think about it.

                                                Deportation at the call of your neighbors. And then approved by some non-law abiding, not, I should say not necessarily law abiding, uh, Government Official. Um, so um, I mean the-the but it was a-a handy way of getting uh, bad actors out of the community. And you know, one can imagine that sometimes bad actors would be hard to uh, pursue through the Criminal law, so-so there would be a loss for the uh, relatively peaceful and-and uh, you know, community, communitarian uh, peasants. But on the other hand, the law uh, under the rule of law, uh, was substantial.

Prof. Fromholz:                 One of-one of the things that I-that I found particularly interesting about that aspect was that it-it showed how Maklakov faced complexities from every side in his efforts to reform uh, the rule of law. Um not just from within his own uh, party, and from the monarchy, but from the-the peasants as well. Um, and uh, Maklakov had this-this long career in the Cadets um, and maybe you want to-maybe you could talk a little bit, just about what he did in the-in the years leading up to uh, the October Revolution.

Judge Williams:                 Well, uh, I mean (laughs), that's a long story. That's a (laughs), that's the book.

Prof. Fromholz:                 Hitting-hitting the highlights, I guess. Just to give-just to give listeners a-a few highlights-

Judge Williams:                 Yeah. (laughs).

Prof. Fromholz:                 Of what-

Judge Williams:                 Yeah.

Prof. Fromholz:                 Of what this man tried to do, and accomplished.

Judge Williams:                 Well on-on the one hand there were trials, and he had-he had plenty of trials where he was defending, typically people that we would call dissidents. Uh, but also, I mean his most famous trial uh, was the trial of Menahem Beilis, who-who was not a dissident at all, he was just a plain ordinary guy, who had the misfortune to be Jewish at a point where a horrible murder of a child occurred. And some people had the bright idea of treating the murder of a child as a blood ritual uh, committed by Jews, and poor old Beilis as the nearest Jew on hand, uh, became the victim.

                                                So Maklakov uh, was his-his Leading Council, and incidentally it's-it's one of the interesting ironies of Maklakov's life, that the-at that point the uh, Minister of Internal Affairs, who was essentially leading the charge on the prosecution, uh, was his brother Nikolay Maklakov. Um, so there was the-the experience as a trial lawyer, which uh, was I think-I think very useful. Then in-in the Duma, uh, I think his-his big areas of reform are uh, essentially uh, independence of the Judiciary, creating remedies for people whose rights are violated, uh, by uh, Government Officials, uh, protecting people from discrimination on the grounds of religion, which uh, as we know in America, is a tricky uh, problem.

                                                But for the-the issues he dealt with were relatively simple, because it-compared to that, because the uh, direct oppression of religions, above all, I guess, Judaism, uh, were-were quite extreme, quite clear. Uh-uh, but it-but it also of course uh, applied to such people as the Old Believers. Um, the nationalities in Russia, the-the, above all we're talking of the Poles and the Finns, uh, who uh-I mean, if one thinks of the Russians as not having many rights, correctly, uh, you have to think of the Poles and Finns as in some ways having fewer rights.

                                                The Finns actually had more, some-in some ways. Because they had a separate Constitution and separate laws, which were more protective of individual rights than-than Russian law. But those were always subject to being over-ridden uh, by the Russians. And the-the Poles were in a somewhat similar situation and the-the results certainly, for Polish occupants of Russia, and recall that Russia had been given the lions share of Poland uh, in the final partition of Poland in 1795 ... uh those Polish, I shouldn't say citizens, subjects of Russia um, were-were ruled more directly by the bureaucracy uh, in St. Petersburg, than any other Russians.

                                                So um, lets see, I'm trying to think am I overlooking some group that he was work ... Oh, and the peasants, I didn't talk much about the peasants. He-his, let me-let me say that his work on that was doubly complicated, because while he clearly was working towards elimination of the uh, the burdens of peasants being in an estate, I mean, as you know the-they summoning of the Estates General in France set off the uh, French Revolution. Uh, and brought an end to the estate system.

                                                Um, estates still existed in Russia uh, up to 1917. And he worked on trying to uh, eliminate those burdens, getting-getting some push back from people like [Paranski 00:32:41], we can go into that, it's an interesting topic. Um, the-the other great issue on the-on the peasants was this whole issue of land ownership. And on that his party, the Constitutional Democrats, took a, I would say, an extreme view. And uh, Maklakov would say an extreme and erroneous view uh, so he couldn't support it, and he couldn't, at least he-he found himself uh, they found it was awkward to attack it.

                                                So he-he uh, didn't participate in that as much as I think he should have, or I would like to have seen him do. But I think-he-I think it's fair to say he covered the waterfront of uh, major rule of law uh, issues in pre-revolutionary Russia.

Prof. Fromholz:                 And there-there's an interesting uh, moment in his-or uh, experience in his life in which-which stands in contrast to that. It-to his-his devotion to the rule of law, and that was when he was involved in the killing of Rasputin.

Judge Williams:                 Yeah, yeah.

Prof. Fromholz:                 How do you see-how do you see that?

Judge Williams:                 Well I-I mean, (laughs), as a biographer it's-it produces a conflict, because I think really an interesting story. On the other hand, I don't think it reflects good credit, uh, Maklakov. What happens is, that the leader of the conspiracy, Prince Yusupov, uh-uh, makes an appointment to see him, and he comes over to see him. And says that he has this scheme for assassinating Rasputin. And it-it becomes clear that uh, Yusupov's notion is that eliminating Rasputin will remedy what ails, or at least go a long way to remedying what ails uh, Russia.

                                                This is a-we're talking about late 1916. And-and it's true, that Rasputin's influence was perhaps at its height there, and it-and it took the form of-of being sort of the ringmaster for what came to be called uh, Ministerial Leapfrog, where uh, Ministries were constantly changing hands. With Rasputin at least, understood generally, to have quite a big hand in deciding who would go and who would come.

                                                Um, so it-it, Maklakov thought this was nonsense. He thought that Rasputin was a simpleton, he was not the cause, it was the weakness of the Czar. The influence of the Czarina. Uh, much more than Rasputin himself, and removing Rasputin would not solve it. But, a series of conversations went on, and-and Maklakov got sort of sucked into the process of giving advice. You better not do this, better if-if you're-if you're trying to accomplish, if you're-if you have hopes of accomplishing what you want to accomplish, you better not do that, and so forth.

                                                Um, so he-he found himself involved and in, I don't know if it's a very last interview with Yusupov, uh, Yusupov spots a-a funny object, which Maklakov was using uh, as a paperweight and-and as potentially a means of defense. A kind of-a kind of club um, with sort of heavy weights at either end, which could clobber someone on the head. Um, and Yusupov asks for it, could he-could he have it, just in case it comes-it came in handy. Maklakov resisted, uh, but it-in the end, uh, yielded.

                                                Now at what point Maklakov became an accessory before the fact, I'm not sure. But he at least believes that he did become an accessory before the fact. And um, uh, if uh-I take this legal touch, with all that. Um, and he cert-and he certainly was involved in it, more than a law abiding person should be. And-and in trying to explain it, I offer various, well the-the-the various theories. One-one is the being sucked in, of-of getting to a point where he felt it would be shameful to completely abandon the conspirators.

                                                I'm not sure how far that could go. And then-then I'm reduced to saying that he had not fully um, taken in uh, something that one of the people uh, who were involved in uh, the chastening him for his youthful escapades had said. Uh, which was that you must learn to rule yourself, in case you may have to rule others. And uh, I-I think it has to be-has to be treated as a case where he failed to rule himself properly.

Prof. Fromholz:                 Uh, that is a good admonition for today's world, as well.

Judge Williams:                 It is, it is, isn't it? (Laughs).

Prof. Fromholz:                 Yes. (Laughs). Uh, I um, one question that you may get um, uh-when you talk about the rule of law, is-is, some people might say, for example, there-there-there were laws, there was rule of law in-in this era in Russia. There were laws during Stalin's time, there were laws at-throughout the Soviet Union. Why-how can you say that-that there was no ... uh, what is rule of law, how-how can we say-

Judge Williams:                 Yeah.

Prof. Fromholz:                 That um, that are we-are we just exporting Western Values on this, or-

Judge Williams:                 Yeah, yeah.

Prof. Fromholz:                 Why-why can say that there wasn't rule of law in-in Russia at this time?

Judge Williams:                 Right. No, I-um, I would not say there was not rule of law. I would saw rule of law was distinctly weak. Starting with the uh, reforms of Alexander II, in 1864, judges, at least the main set of judges, uh, in Russia, had, on paper, what we would regard as good tenure protection. They could not be dismissed, or reassigned, against their will, on paper.

                                                But, the uh, person who was Minister of Justice for a large chunk of the-the period where Maklakov is active, guy named Shcheglovitov, admitted in later testimony, that it was possible for him to bend, his word, bend judges when he felt it was necessary to do so. Well that's uh-of course, you know he-he obviously was talking of cases where he did bend judges. How many other cases were there where a judge anticipating being bent uh, bent himself? I mean, did essentially um, you know, uh-uh, self censoring. It's not censoring when it's a judge, but uh, but-but uh, antici-anticipates-anticipates the response of the Ministry of Justice, and accommodates them.

                                                So-so it was-it was weak in that sense. The system of-of-of Courts, the main one, which the peasants had access, which was run by peop-run or run entirely by people without legally-legal training. And also run by people, or deeply influenced, by people who were simply uh, officials of hear it again, the Ministry of Internal Affairs uh, which was not particularly, had no-no commitment to law, no legal training, no notion of the, what we think of as-as judicial norms.

                                                Um, so those seem to ... and, I mean, the result was you have an Executive Branch, which is nowhere ne-I mean it's constrained politically, but it's nowhere near as constrained as we like to think uh, our Executive Branch should be. Oh-

Prof. Fromholz:                 Uh-

Judge Williams:                 And as for being Western Values, I've been thinking about that. Uh, I-I think in the-in the development world, I mean the world of people who are interested in development of undeveloped countries, there's this phrase, getting to Denmark. Which it is, uh, is a short capsule for the idea that a lot of people around the world who aren't living in a place like Denmark would like to live in a place like Denmark.

                                                Where most of the time, your safe, where government isn't doing outrageous things. Uh, where there's not extreme corruption, um, and uh-why people would not want to live uh, in such a world is hard for me to imagine. So to call that Western Values and to call boosting that as imposing Western Values, doesn't seem to be to make sense. Of course im-imposing I-I should add to that, uh, the last thing I would favor uh, was some idea of-of uh, of a U.S. demand of the rule of law uh, enforced by troops.

Prof. Fromholz:                 Well, I yes, I-I agree with you on all of that, not surprisingly. And um, we are-we are coming to the close of our time, but I-I can't resist asking one last question. In uh, in the book there's an account of Maklakov going to France, at one point, and lobbying against-

Judge Williams:                 Yeah.

Prof. Fromholz:                 A loan that the French Government is considering giving to Russia. And he, it turns out that he's too late to, his lobbying comes too late. Um, but I-I have to ask, uh, whether you think that his activities in France would have violated the language of the Logan Act, which was actually mentioned in your book?

Judge Williams:                 Um, I have to say that I think that if the Logan Act had-were on the books in Russia, in 1906, uh, it would be hard to say that Maklakov had not violated it. He-he spoke to very high French Officials uh, Clemenceau who was not then Prime Minister, but was, I forget his exact uh, Ministry, but he was extremely high in the French Government. Uh, and could have exerted influence on the French Government if-if [inaudible 00:43:50] had not come too late. So he certainly was, Maklakov was certainly speaking directly, and emphatically, to an-a foreign Government to thwart efforts by his own Government uh, that were being uh, carried on with and through uh, the-the foreign Government, namely to-to raise a-a huge loan.

                                                Um, which-which Maklakov and-and other Liberals feared would-would just enable the Regime to postpone reform. Um, so I-I-it looks to me like a-a violation of the Logan Act. Of course, we don't have any interpretations of the Logan Act, 'cause it's never been enforced, but uh, and-and I should say that as-as I did in the book, I think the real problem with what he was doing there was the political uh, the way it looked, politically. To the extent that it came out, and I think it came out only uh, in sketchy um, not altogether credible terms. Um, to be-to be fighting your own Government with foreigners, encouraging foreigners, foreign Governments to resist your Government does not look good. Uh, it's-it violates some sort of natural norm that I think uh, most countries have.

Prof. Fromholz:                 Well it-that's an interesting uh, and relevant note on which to end. And um, the book is-is, while it is about uh, Vasily Maklakov and-and the, and a period in Russian history, there are so many accounts and lessons in it that are-that remain quite relevant to-to our world today. Uh, and-and the-the continuing um, search for, or effort to promote the rule of law around the world. I, Judge Williams I just want to thank you very much for uh, for such an interesting discussion and-

Judge Williams:                 Oh well thank you for-for asking, I thought, interesting questions. And-and clearly having uh, read the book in a way which would ... saw the questions there.

Prof. Fromholz:                 Well, my pleasure and uh, if you have any last words I turn it over to you, or uh, back to Laura.

Judge Williams:                 Uh, no words except to thank you and The Federalist Society.

Laura Flint:                          On behalf of The Federalist Society I want to thank our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected]. Thank you all for joining us, we are adjourned.

 

Speaker 1:                           Thank you for listening. We hope you enjoyed this Practice Group podcast. For materials related to this podcast, and other Federalist Society multi media, please visit The Federalist Society's website, at fedsoc.org/multimedia.