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Judge Stephen F. Williams discussed his riveting new book The Reformer with our own Ben Weingarten. What follows is a full transcript of their discussion, slightly modified for clarity.
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Ben Weingarten: What is it that draws you to Russian history as a Jurist?
Judge Stephen F. Williams: Well, I guess that the two aspects of that, one is, what is it that draws me to Russian history at all? And then the role as a jurist. I’m drawn to Russian history because as I grew up, Russia was the “other.” It represented a system which, in the household in which I grew up, was regarded as dangerous and evil – “an evil empire” to quote president Reagan. And in fact…that was brought home to me in a very vivid way in my youth because my parents had a friend, Freda Utley, who’d been a British Communist and a journalist also, and she married a Russian who was in London in the…I guess the early ’30s…and she went back to Moscow with him and I’m not sure at what point their child was born, but they were living in Moscow in 1937 with a child. And if you know your Russian history, 1937 is a dangerous year. The knock came on the door, her husband was taken away and was never seen again by her. And that was a story which was very vivid in my growing up, as you can imagine, to meet someone whose husband has been torn away essentially to death.
And so I was very interested in Russia. And then the Soviet regime fell in 1991, and even before, it was clear that it was on the ropes. I was very interested in what would follow. And I’d thought that part of the answer to what would follow might lie in its history. The first thing I came upon was the question of what reforms had been tried before the Soviet era, and the most significant of those seemed to me the Stolypin reforms, which were trying to give peasants relatively solid rights in property. That led to the first book, the 2006 book Liberal Reform in an Illiberal Regime.
Ben Weingarten: The reformer that is the focus of your book is Vasily Maklakov. What was life like for him and for lawyers generally in Czarist Russia at the turn of the 19th century?
Judge Stephen F. Williams: Yeah. It’s a good question…Life as they led it — apart from the nature of the courts, which is an independent issue — there was a bar, and I guess two things about it that deserve note. There was a strange apprenticeship system in which it was said that the apprentices didn’t apprentice, and the mentors didn’t mentor. And that was certainly true in the case of Maklakov because he ended up…he really was established as a lawyer before any apprenticeship could actually be launched. He was nominally the apprentice of a very fine person who became a friend of his, but he failed into success really remarkably quickly…There wasn’t the sort of association activities that I think are available to modern American lawyers. There was something called the “wandering clubs,” and these were just gatherings of lawyers who met weekly or from time to time anyway. They’re called “wandering” because the site of the meeting would float around from member to member because they didn’t have any physical headquarters, and Maklakov was very active in that, a sign of his general gregariousness.
The other thing I wanted to mention about the bar was that, although it fluctuated, there were various barriers against Jews becoming full-fledged lawyers. What made that a tolerable if kind of irksome system is that even before they became full-fledged lawyers, they could do everything that full-fledged lawyers do. So, many of the most prominent lawyers in Russia were in fact Jewish. There was a brief moment in the first few days of the February Revolution when Maklakov was a so-called “commissar” of the Ministry of Justice, and he used that time to eliminate the barriers on Jews becoming full-fledged lawyers.
Ben Weingarten: Since you mentioned that topic, it’s a recurring theme in The Reformer that Maklakov had, it seems like a particular affinity towards Jews and opposed the anti-Semitism that was endemic in the Soviet Union…What drew Maklakov to the Jewish cause?
Judge Stephen F. Williams: I think it’s a slight overstatement to say he was drawn to the Jewish cause. I think he was a staunch believer in having government that treats people fairly and equally. And if there was any, I mean there were actually plenty of targets of the Czarist regime, plenty of people that the Czarist regime failed to treat fairly and equally. But I suppose in his immediate life, probably the ones most often exposed to unfair treatment were Jewish. I think he was naturally…he responded to that. There is, and I deal with this in the book, there’s a claim that he — I don’t know if it was anti-Semitic, or a more neutral observer says, not pro-Semitic — and the not pro-Semitic is probably true. For example, Churchill I think was actually affirmatively drawn to Jews. I don’t think that’s really true of Maklakov. He refers in some of his correspondence to indulging in a sort of zoological anti-Semitism, meaning, he thought — and this is hard for me to sort of grasp — he didn’t think they were nice looking. But that seems to have had no effect on his behavior towards them, so that at every stage where actually something on behalf of Jews can be done, he is ready to do it.
There’s a passage that I liked in a debate in 1916, where a bill was being amended, and Maklakov is making sure that some relatively small but still correct things are being done in favor of Jews, correcting a previous, basically a badly written previous provision. And Kerensky is talking at length, trying to expand the bill to be much broader to remove disabilities of Jews. But Maklakov says that in the particular context — which is probably too complicated to go into here — in the particular context, it’s just impossible to attach that to the bill that was before the legislature, the Duma. And anyway, Kerensky goes on, and on, and on, and there’s an ardent anti-Semite who gets up and says, “I’m much more afraid of Maklakov than of Kerensky.” And I think that was because he saw that the careful, measured approach, and politically savvy approach that Maklakov was taking, was much more likely to eliminate bigoted regimes and anti-Semitic behavior than Kerensky’s fulminations.
Ben Weingarten: Given the realities of the Russia that Maklakov was born into, how did he come to respect the ideas of consent of the governed, the rule of law, private property rights, to some degree, a semblance of separation of powers and federalism?
Judge Stephen F. Williams: Those are all interesting questions. I think federalism, in the sense of autonomy for the non-Russian areas, such as Poland, how did he come to it? I think you start with his family. And, his father had been clearly a supporter of the so-called “Great Reforms,” the reforms of Alexander II above all of the emancipation in 1861 and the improvement of the judicial system…in…1861…The basic ideas seem to prevail, at least as Maklakov saw writing about it later, that these were a good start, they should be carried further, and since they basically involved producing, or trying…or edging towards a…regime with an independent judiciary, the rule of law, and secure rights for people, it was natural for him, I think, to move in that direction.
I should say that, although that’s the way I read his family life, I have to confess that he had a brother, a younger brother brought up in the same household who in fact turned out to be a staunch supporter of the regime and in many respects, one of the more active people in the regime in carrying out its reactionary character. That’s his brother, Nikolai. For example, there is a famous anti-Semitic case, the prosecution of Menahem Beilis. And my character, Vasily Maklakov, was the principal defender of Beilis, while Nikolai Maklakov, his brother, was Minister of Internal Affairs, and was aggressively pushing the prosecution and even doing things which were extremely questionable. Well, questionable is understating it — I think almost certainly unlawful and certainly improper in, for example, eavesdropping on the jurors in the trial. I can’t attribute Vasily’s position entirely to that.
The curious thing about Maklakov — he goes into the legal profession, and the legal profession, I think it’s fair to say, was more or less part of the liberal intelligentsia, which was actually not so much in favor of private property and that sort of thing. Throughout his life, he’s put in a funny bind because the only political party that he feels at all comfortable in, is one which is really quite hostile to private property. The question is not how he became liberal, but how he became liberal with a concern about such things as private property. He fits well in the classical liberal mode, although not perfectly. But he’s in a country where there’s very little support for that.
Ben Weingarten: Yeah, there’s a line in The Reformer about Maklakov and the Duma, and you write: “Monarchists to right of him, revolutionaries to left.” Here we are stuck in the middle with Maklakov. The word that comes to mind when I think of Maklakov is prudence. He’s sort of seeking…
Judge Stephen F. Williams: Yes, yes.
Ben Weingarten: …to push for the most politically and culturally acceptable position, on the most critical issues that he could push in the way that would have the most sway. Is that the principle in your view by which he lived?
Judge Stephen F. Williams: I think that’s fair to say. I want to qualify that a little bit in the sense that he preferred half a loaf to no loaf very clearly. That’s extremely visible in the debate that you just mentioned. I think he was willing to take positions that probably didn’t have much prospect of immediate fulfillment. But he wouldn’t risk something good, something good actually happening in order to do that. And that’s what’s particularly vivid in the debate that you’ve mentioned because he’s pursuing improvement within a context while Kerensky is sounding off.
Ben Weingarten: What, in your view, were the most significant reform efforts in Maklakov’s career?
Judge Stephen F. Williams: I guess it depends… Is one thinking of what was accomplished, or what was tried? He was constantly trying and edging things along, and I suppose the area where that mostly bore fruit was in judicial reform and bringing about a condition where the courts available to peasants would be…less like a branch of the political administration. And that was a very delicate and complicated thing, and he certainly didn’t have complete success on it. But he helped edge the system towards more independence and more law-abidingness, if I may put it that way, work with the phrase, for those courts, so they were not just tools of the executive administration.
…If I had to single out one, I think, that’s the one where, probably his heart was in it most ardently. And because, first, it was central to his experience through life. And, probably the one where he could be said to have made the most progress.
Ben Weingarten: Speak a bit to Maklakov’s dealings with Stolypin.
Judge Stephen F. Williams: Yes. His first great speech is an attack on something that Stolypin had done. In the summer of 1906, there were assassinations going on in Russia by the terrorist left, claiming to about 300 government officials killed per month. And the regime responded to that with something that, you can understand them doing, but was still a fairly miserable solution, and that was the so-called “field Courts-martial.” And these had the power to try people. They were tried by an army officer with no legal training. They were charged by some other army officer, and it would usually be in terms that suggested that this person’s elimination from the face of the earth would be very useful. It’s unclear whether the act was even a power to impose a sentence less than death. In any event, virtually all people who got charged in this system were sentenced to death, and there was no appeal and the death penalty was inflicted almost immediately.
And other people attacked this bill, but Maklakov attacked it on a somewhat unusual ground. He attacked it on…the obvious grounds of it, it’s savagery. It was savage. But he also…he realized that Stolypin was fundamentally in favor of the rule of law, and thought that a rule of law state was desirable — not only desirable, but really important. Maklakov attacked him on precisely those grounds, and he framed his attack in words that I associate with the wonderful passage of “A Man for All Seasons” by Robert Bolt, where…Sir Thomas More is attacking this flunky who wants to act illegally, and Sir Thomas, in the words of Bolt, says “England is planted thick with laws, and when you cut those down, where will you hide?” And Maklakov says in Duma, essentially speaking to Stolypin, “If you proceed in this way, you may defeat the revolution in some sense, but you will not have a state with the rule of law. You will have simply a chaos.”
I haven’t worded it as well as Maklakov did. I’m sorry. He put it very clearly and very firmly, and it’s pretty clear that Stolypin picked up on this and responded to it and it hit Stolypin. It hit an aspect of him that others were a little bit slow to see, and made him more responsive to eliminating the system. The system in fact came to an end. That was partly because of various technical rules, which is probably too complicated to go into here, but, there’s evidence both with Stolypin’s words and the decline in use of these courts that he was affected by what Maklakov said.
[Editor’s Note: Maklakov’s appeal was as follows:
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.]
Ben Weingarten: Now, fast forwarding to 1917 and speaking of lawlessness, what did Maklakov seek to achieve during the turmoil and tumult of that year?
Judge Stephen F. Williams: Well, there’s a period before essentially that provisional government comes into existence, and Maklakov — as early stages for riots at Petrograd are beginning to threaten the regime — ends up in conversation with some high officials including the then-Foreign Minister of Russia, to try to create some regime that will essentially create a cabinet that will earn the trust of the people. Nothing comes to that essentially because…at that just critical moment, the rioting appears to be under control. So the regime loses interest, compromises. This is a terribly sad moment lost. Whether it would have worked or not, it’s hard to say, but in any event, the moment was lost.
Then comes essentially the way in which the Czarist regime falls, and so far as I can make out, the great difficulty is that Maklakov was not in on the key decisions of Duma leadership at that point. There was a quasi-formal institution, a Council of Elders. And the trouble is that had two representatives of each party. While it would have made sense to have him be one of them, he was not. He was not in a position either to advocate the preservation of the monarchy, and he was certainly not in a position to advocate preservation of essentially the constitution that the Czarist regime had set up in 1906. The people taking over in 1917, February of 1917, believed that what the Czar had done in 1906, was fake, was a fake constitution. They saw no reason to stick by it and created this provisional government, which essentially had no real legitimacy in the sense of a link or dependence on any kind of legislative institution. They tried to solve that problem by promising a constituent assembly to be elected in November, which is eight months away. But that wasn’t very convincing to people. The provisional government, despite his efforts, which were, in a way, cut short by essentially the people who were taking charge at that point…the provisional governments turned it off on a very questionable footing.
Ben Weingarten: In some sense, Maklakov seems a bit like the Forrest Gump of Russian history in the early 20th century. You talk about his involvement with one of the most infamous figures in Russian history, arguably, Rasputin. Tell us a bit about Maklakov’s involvement in the conspiracy to murder Rasputin.
Judge Stephen F. Williams: That is not Maklakov at his best, I think. Basically, he gets word that Felix Yusupov would like to speak with him about something. And he was one of Russia’s richest people and a relative of the Czar. Maklakov agreed to see him, and Yusupov came to Maklakov’s apartment and said that he and others had in mind assassinating Rasputin, who at this time was seen by people as both a powerful and an evil force…[on] the Czar and the Czarina Alexandra. How influential he was is uncertain. Maklakov said right off the bat, “I don’t think eliminating Rasputin is gonna do any good. I think there are basic problems here that that is not a solution to.” But Yusupov kept at it, and in the end, Maklakov starts giving him, and through him, the other conspirators, advice. It’s very alarming because one of the conspirators is [Vladimir] Purishkevich…also a man of the Duma. In a hall outside the Duma, he [Purishkevich ] starts speaking in a very loud voice about the imminent assassination. He’s — for a conspirator to do an assassination, he’s really the last person you would want. Anyway, despite that, Maklakov, he justifies himself by saying “This is gonna be done. These people are gonna try this. I should at least try to make it less crazy with some chance of at least accomplishing what they think they’re doing.” He does that largely by talk.
But then in the last big scene, Yusupov sees this kind of club, it’s hard to describe it. It’s a thing that Maklakov had picked up on a visit to Morocco, and it seems to have heavy weights at either end. It’s maybe a foot or so long. And Yusupov says, “Oh, can I take that?” Maklakov resists the request, but at the end yields to it. Maklakov, in his major account of this after the Revolution, says he could be charged as an accessory before the fact to the assassination, and I think that’s true. On the other hand, the club apparently does play a minor role in the assassination, but it goes ahead, and the result is not anything the conspirators hoped for at all. Essentially, the peasant masses who were ready to hear the worst about Rasputin before he was assassinated seemed very generally to have taken the view once he was assassinated by aristocrats, that, here you have one of us, a peasant, who somehow or other gets close to the seat of power, and the aristocrats kill him off. He becomes sort of a martyr. And on top of that, the Czar and Czarina get more withdrawn from everything, actually, in the sense of not having…Rasputin, for all his faults was at least making some sort of contact with a set of Russian ideas. But the Czar and Czarina seemed to be really even more isolated after he was killed.
Ben Weingarten: What are the lessons of Maklakov’s life when looked at through the prism of others seeking liberal reforms in autocratic or otherwise, lawless nations?
Judge Stephen F. Williams: The lesson I take away from this is that it’s extremely tough. A regime may want to bind its bureaucracy in laws, and that would be a great step forward. That’s another area of Maklakov’s efforts, to try to get essentially, rights to recovery in court of people who are victimized by regime officials acting unlawfully. He makes a little progress on that. But there’s deep resistance to anything going very far, particularly deep resistance to anything that will confine the people at the very top of the system. As I look around the world…you look at the Arab spring and you look at Russia and Ukraine, and the Czarist regime looks comparatively helpful. They do accept [a] constitution, and it has holes in it, there’s no doubt about that. But they do really seem to, for the most part, try to adhere to it. It seems to me you don’t see anything like that in the regimes that trouble us around the world, and there seems to be nothing to really bring them towards the rule of law.
In a way, Maklakov…[laughs] I find it odd to say this, had it easy. But even so, he was unable to make much progress. I think the fundamental thing, and this goes to the question of why the liberal revolution in February was brought to an end by the Bolshevik Revolution in October. Basically, the civil foundation of the rule of law didn’t much exist. The courts were not very broadly respected as a source of law, and there was a good reason for that because the regime did try to bend their decisions in cases where the regime was concerned. And essentially, in terms of enterprise, that was very significantly hampered. All other developed countries at this time enabled people to form a corporation just by filing a few papers. In Russia, it required getting special permission from the regime, and that was obviously an opportunity for crony capitalism.
Let’s just take enterprise. The businesses in Russia had surprisingly few Russians in them. They had Russians of German ancestry, and Russians of Jewish ancestry in them, so that, I know that somehow or other, those two sets of people had more of the entrepreneurial skills which I think would have been likely to develop civil society, in terms of bringing people together to solve social problems, than the actual Russian Russians. I should say on this that, and you’re asking where Maklakov got some of his basic viewpoints. At some fairly early stage, he helped finance translations of Tocqueville from French into Russian, and I think that surely, it may be that he liked Tocqueville because Tocqueville was saying things that he had already come to think, and maybe that Tocqueville persuaded him on some matters. But in any event, by some fairly early stage, he had come to take a fairly Tocquevillian view of social and political life, and essentially, as you see in Tocqueville’s Democracy in America, that view puts great stress on the ability of small groups of people to act together and to solve problems. And the regime essentially did very little to allow that to happen, and a lot to prevent it.
Ben Weingarten: And you describe the lack of any semblance of a free enterprise system effectively in Russia 100 years ago, and you talk about…
Judge Stephen F. Williams: That’s an overstatement, but it was certainly underdeveloped compared to places like Germany and France.
Ben Weingarten: And you look at Russia today, and in some respect, it still is kind of a crony Capitalist society…
Judge Stephen F. Williams: Very much so.
Ben Weingarten: Where you had a faux liberalization after the fall of the Soviet Union, and oligarchs who are essentially Putin’s handpicked friends, who control industry in the country. I guess 100 years on, if the system hasn’t fundamentally changed, at least economically, is that a by-product of Russian culture, the nature of the Russian people simply being inhospitable to liberalization, or is it something else?
Judge Stephen F. Williams: Yeah, I’m very reluctant to adopt any view like that. Picture any country subjected to a regime like the Soviet regime, from 1917 to, it depends on how you count, let’s say 1987, sort of mid-Gorbachev. That’s 70 years in which you have a regime which is really affirmatively hostile to any kind of independent activity by individuals, so that simple acts of ordinary commerce between individuals were regarded as speculation and therefore crimes for which severe penalties could be inflicted. And that meetings between people had to be held in kitchens, and had to be very careful at that because of course many of the kitchens were bugged, and other devices were being used to try to…I mean, use of, essentially turning individuals into spies for the state were being used. I think any country that’s been through that is going to have trouble.
Suppose there had been no war, and Russia had inched along after 1914 the way it had from 1905 to 1914. I think, maybe I’m optimistic in this, but I think gradually, civil society would have developed. It would’ve made the use of essentially lawless measures by the state. There would be so many people marshaled against that, and able to act in some way against that, that it would’ve yielded to a sort of liberal regime. Maybe not ideal, but substantial.