The Religious Factor in the Development of Imperial Legislation

In the course of its formation as a multinational empire, the Russian state traveled along a long and tortuous path of historical development which predetermined the peculiarities of its regime and political-administrative system, primarily in its national borderlands.^[1] This historical past in many ways conditioned the character of existing legislation in the early twentieth century, which was largely affected by ethnic and religious factors.^[2]
Beginning in the mid-sixteenth century — since Moscow’s conquest of the lands of the former Golden Horde — Russia incorporated significant territories with non-Christian (Muslim) populations, in relation to whom the Christian state was compelled to formulate a definite policy. The status of Islam in Russian history, from incorporation of the first Muslim subjects in the state to the liquidation of the Orthodox Empire in 1917, was neither uniform nor unchanging. Scholars have identified two major periods as concerns Islam in the empire: a period of “persecution” and one of “toleration.”^[3] Catherine’s reforms of the 1780s serve as the boundary between the two. This change in the status of Islam was reflected in legislation, as well as in the state policy towards Muslims, although the latter did not always correspond to the former. Indeed, policy was more “changeable” than law and, in response to various external factors, exhibited a remarkable degree of flexibility.^[4]
The Tatars of the Volga-Ural region^[5] were the first (since mid-sixteenth century) and for a long time remained the only Muslim people to be incorporated in the Russian state. It was therefore they who experienced the whole burden of religious policy aimed at eradication of non-Orthodox faiths.^[6] This policy had a number of consequences, one of which was the formation of significant non-Muslim group within the Tatar nation, the so-called baptized Tatars, or Kryashens. This group had no analog among the other Muslim peoples of Russia. This group formed not later than the end of the eighteenth century. Since the beginning of the nineteenth century, there were virtually no examples of mass conversion from Islam to Orthodoxy. On the contrary, the liberalization of domestic policy resulted in mass re-conversions to Islam of baptized Tatars. Therefore, whatever Orthodox missionaries may have declared, by the early twentieth century it was more important for them to preserve the existing baptized-Tatar flock – that is, to prevent it from decreasing – and only then to attempt to increase its size.^[7] Another important problem for missionaries was the protection of other baptized non-Russian from “Islamic influence”. Existing legislation (in particular, provisions in the criminal code^[8]) was designed to serve this purpose and, more generally, upheld the needs of the Church. It was hardly an accident that, despite the extension of toleration to the point of “freedom of conscience” in the autumn of 1905, the right of proselytizing was granted exclusively to the Orthodox Church, which retained the status of the dominant church.^[9] As one contemporary wrote on the matter, “our criminal law does not protect religious liberty, rather it reflects its absence”.^[10] In the cases when the law was not adequate, administrative measures could be used.
In contrast to the experience of Muslims in the Volga-Ural region, other regions with a Muslim population (Crimea, and especially the Caucasus and Central Asia) were incorporated into the Empire when religious policy had already undergone qualitative changes had become more tolerant. These changes resulted in more moderate religious policies towards these Muslims and allowed them to maintain greater autonomy, including in the religious sphere. As a result, the attitudes of various Muslim peoples towards existing religious policy were quite different. The differences among Muslims groups were revealed also in the actual implementation of the proclaimed “freedom of conscience” (especially as regards the issue of unobstructed change of religion, etc.), and during discussion of these questions within the society, in the press, and at the meetings. In this regard, the activities of the Duma’s Muslim fraction and its individual members are instructive.
While emphasizing the essential, and sometimes critical, influence of religion on Russian law, we need also to keep in mind the intricate combination of religious and national factors in the development of imperial legislation. This thesis may be illustrated by considering religious legislation on the issues of church-state relations and the relationship between the individual and the state.
Having analyzed Russian law in this context, the legal scholar M.A.Reisner noted the national basis of Russian religious legislation and came to the conclusion that Russian toleration was the product of pure political necessity. It was the result, he wrote, of the need “to bind new nations and peoples to the structure of vast empire and to capture their national religions in the framework of unified government administration”.^[11] This fact explains the peculiar “ranking” of religions,^[12] as well as the granting of the greatest degree of toleration precisely to the strongest and largest nationalities. That is, the standard was not the spiritual level and moral character of different religions, but rather “the extent of their political weight as national beliefs”. It thus becomes clear why the law prohibited proselytizing of all denominations but Orthodoxy: the very right to preach was understood as the propaganda of national values and interests. All these observations enabled Reisner to conclude that “the Russian state, in its religious legislation, is the state not legal, not clerical – it is the state secular, national, tolerant; at the same time, however, it does not know any special freedom of personal faith; but it confuses religion with nationality, morality with law, and makes clerical authorities the instrument of secular policy”.^[13]
Whatever the actual religious policy and the limits of toleration in the early twentieth century (given its restricted and utilitarian nature), the expansion of the scope of religious freedom was reflected in the criminal and civil sections of contemporary legislation, thereby revealing the transitional nature of the epoch.

The Specific Features of the Administrative and Legal Structure of Muslim Regions in the Early Twentieth Century

In the beginning of the twentieth century, two tendencies are discernible in the development of Russian legislation. The first aimed at the unification of the all the empire’s legislation, which could be attained through the introduction of a new all-imperial civil code. The second involved the aspiration of jurists and the liberal public to fix liberal political changes legally, which in essence meant a change in regime. To this end, one of the most actively debated questions in the contemporary legal literature concerned the possibility of creating a new uniform civil code (civil rights were still regulated by the 1832 Code of Laws, enacted in 1835),^[14] and the expediency of enacting the Criminal Code of 1903 in its entirety. The urgency of this problem was rooted in the specific situation of Russian society at the time, which can be most neutrally characterized as “transitory”. Consequently, according to contemporaries, the transitory character of the epoch left its imprint on all of contemporary Russian law: “new standards were being created during a period of deep state crisis and shaking of traditional foundations of the state life, [a period of] political uncertainty, distrust to new establishments and collision of various yet unaccounted forces, left to Russia by its pre-reform past” (S. A. Kotlyarevsky). On this basis, some authoritative Russian civil law scholars, such as Professor of Kazan’ University F. G. Shershenevich, considered it expedient to suspend the compilation of the uniform civil code until “the revolution make a complete turn.”^[15] There were others, for example L. Petrazhitsky, who considered it fundamentally impossible to create a uniform civil code for such a vast and ethnically diverse country.
If the new Civil Code was only in its development stage,^[16] the new criminal code finally received the Imperial Assent on 22 March 1903, after 22 years of preparatory work. But because it was only partially enacted (portions on religion were introduced on 14 March 1906),^[17] until 1917 there existed a criminal-legal “diarchy”: the Penal Code of 1845 remained in force while parts of the 1903 criminal code were introduced beginning in 1904. Moreover, even before its final enactment, the new code, as “a product of bureaucratic creativity of a police state” (S. P. Melgunov), was hopelessly out of date and already contradicted many of the rights and freedoms promulgated in the manifestos of 1905 and the Fundamental Laws of 1906. A number of criminal specialists, for example professor A. A. Zhizhilenko, advised delaying the enactment of the new code and producing a new draft more in line with the changed circumstances.
This incompleteness of many processes and the “transitivity” of the epoch manifested itself in the legislative regulation of the status and rights of various peoples, including Muslims. Once again, the incorporation of Muslims at different stages of the empire’s development determined the different legal status of these peoples (and, more generally, territories). This phenomenon was due both to historical factors and to the tasks that the imperial government faced in its efforts to rule in accordance with “state interests”.
When incorporated into the Empire, a number of areas already had well-developed, deeply-rooted, and historically formed legal systems. As a result, in the early twentieth century, local civil rights in some national areas corresponded to different civil law systems. Thus, Finnish civil law was an example of Swedish (North-German) law; Baltic German law, of Roman-Germanic; Bessarabian law, of Greek-Roman; in a number of Western Ukrainian areas (Poltava, Chernigov etc.) the law was based on the Lithuanian-Polish tradition (the Lithuanian Statutes); and in Transcaucasia, civil law had Oriental (Georgian-Armenian and Muslim) origins. This legacy, in the opinion of jurists, caused the preservation of historical relics in local law of some territories and objectively hindered the creation of a unified all-Russian civil law.
Unfortunately, the issue of the correlation between local and all-imperial legal traditions has not been addressed adequately in the latest scholarly literature. The most recent fundamental work on Russian social history contains virtually no mention of the preservation of local laws and their impact on the evolutionary process of all-imperial legislation.^[18] The author, B. N. Mironov, offers a sufficiently detailed study of civil and criminal law, analyzes customary law (as characteristic for Russian peasantry), but does not show territorial and national specificity of customary law existing in the Empire’s borderlands.
Indeed, in the course of the administrative organization of annexed borderlands, the government had to reckon with these and many other local factors in its attempt to effectuate the “least painful” and speediest adaptation of “the next subjects to new conditions of life within the Empire”.^[19] Administrative systems of different regions formed in the beginning of the twentieth century evidently reflected the chronological disparities in the incorporation of different regions into the unified state, and hence the different conditions which accompanied this process. As a rule, at the early stage of incorporation “the regions were simply included in the all-Russian political and administrative system” with “the same administrative pattern” for alien population of these regions as in the central areas of Russia (S. G. Agadzhanov).^[20] At later stages, the ethno-social factor had a greater impact on the administrative structure of the borderlands, which manifested itself both in wider involvement of the “alien” borderland elite in administration and in greater attention to local specificity, traditions, and rules of local (common) law in the course of elaboration of legislative standards in newly incorporated regions (Caucasus, Turkestan, regions of Semirechye, etc.). Therefore, if the Volga-Ural region did not differ from central regions by existing administrative pattern and had no particular national and religious specificity in this aspect, then in southern borderlands the situation was quite different: the “Regulations on Administration of Turkestan Krai”, the system of ruling by viceroy (namestnichestvo) on Caucasus, etc. took greater account of ethno-regional specificity. This specificity also manifested itself in the different legal statuses of nationalities inhabiting imperial borderlands.
Nevertheless, the general trend in the development of the administrative system of borderland territories was the attempt by local authorities to effectuate the speediest unification of their subordinate borderlands to the larger Empire. The judicial reform undertaken in the course of liberal transformations in the beginning of the twentieth century should have become an important link in this unification process.
Indicative is the course of discussion of the judicial reform, especially of its part related to the judicial procedure in the Caucasian region. Caucasian Viceroy Count I. I. Vorontsov-Dashkov emphasized on numerous occasions that the reorganization of the judicial system in the Caucasus should be aimed at its rapprochement with the judicial system being reformed in the European part of the country. Probably, Vorontsov-Dashkov was one of the main initiators and inspirers of the judicial reform in relation to the local “indigenous” population of the Caucasus, which was under active elaboration during the entire inter-revolutionary period until 1917, but most intensively in 1911-1912.
Based on materials of the inspection conducted by Senator Reinke (1910), the draft of the reorganization of the legal system for mountain peoples of the Caucasus was prepared. The draft envisaged abolishing mountaineers’ and people's courts – i.e. eliminating the customary law (adats)^[21] from judicial proceedings – while preserving Sharia courts, which would cover trial cases of the first instance. Decisions of qāzi (Sharia judges), however, were to be approved by justices of the peace. Although qāzi did not take part in hearing cases at higher jurisdictions, the conclusion of Muslim clergy (spiritual directorates) was required when considering questions relating to Muslim law.^[22] In March 1913, in the course of consideration by the government, the members of the Council of Ministers agreed to the draft of the Ministry of Justice based on the proposals of Senator Reinke.^[23] In the opinion of the Ministry, mountaineers’ and people's courts based on the customary law of Caucasian peoples “did not correspond to the high purposes of justice”, were the reason of mass perjures, and doubtlessly had to be reformed through their replacement by the justices of the peace.^[24] To coordinate the draft of the Ministry of Justice with other departments and to elaborate its final version, a special council chaired by Deputy Minister of Justice A. N. Verevkin was created, and its work began in March, 1914. However, the efforts of the council were suspended due to outbreak of the war and were not resumed until the end of 1915.^[25]
Simultaneously, taking into account the preservation of rules of Muslim law^[26], the Department of Spiritual Affairs was entrusted with compiling a special collection “containing the summary of Sharia regulations specifying the order of hereditary and testamentary succession of Muslims of Sunni tradition”, with counterparts in Russian and Arabic.^[27] This collection was primarily intended for the familiarization of legal officials involved in this sort of judicial proceedings with rules of Muslim law.^[28] The collection was previewed at the Orenburg and Tavrichesky Spiritual Assemblies.^[29] In the autumn of 1913 the first edition of the “Collection of Sharia Regulations on Family and Succession Law” was issued, immediately followed by preparations for the second edition.^[30] It is not known, however, how widely it was used in judicial proceedings.
Thus, the judicial reform in the Caucasus did not suggest complete unification of the legal procedures, as the government, on the one hand, sought to restrict or even to abolish completely the customary law of mountain peoples, and, on the other, provided for the preservation of Sharia rules when examining cases related to the Muslim peoples of the Caucasus. The conclusion that “multiple ways of life, multiethnicity and polyreligiosity of the territory sometimes created insurmountable difficulties” on the road to the unification of the administrative and political system of the Caucasus on the Russian model (D. I. Ismagil-Zade^[31]) is also quite true in relation to the judicial system of the region, which bore the imprint of religious affiliation of part of its population. Moreover, it was the ethno-religious diversity of the territory and the small proportion there of Russians, which resulted in the government’s fear of completing the matter and instituting jury trial in the Caucasus. The arguments of experts, including Muslim lawyers (see position of Duma deputy X. Xas-Mamedov,^[32] and the speech of G.-O. Syrtlanov at the meeting related to the issue of instituting jury trial in Tersk Oblast held in the summer of 1910 in Pyatigorsk,^[33] etc.), did not seem convincing and weighty enough for authorities to decide this problem positively: using the officialese of that time, we may say that the “composition” of the population made universal institution of jury trial “untimely”.^[34]
Therefore, in some sections of civil law, namely in succession law, Sharia rules were recognized officially. When conducting the judicial reform in the 1910s, an attempt was even made to take into account their inclusion in the legal procedures and to preserve this practice for the future. Indeed, these phenomena put the brakes on the process of creating a uniform legal space, which had been occurring since the late eighteenth century, but the flexibility of Russian law and authorities was perhaps inevitable.

Restrictive Rules of Russian Law and Muslims

Considering the legal status of individual nationalities in the Russian Empire, one should take into account all spheres of legislation (state law, i.e. constitutional and administrative ones; civil law and criminal law), as each of them, regulating this or that sphere of public relations, in its own way affected and identified the status of an imperial subject as a representative of a certain religious or estate community or as an inhabitant (native) of a particular region or district.
Extensive use in Russian law was made of such terms as “alien”,^[35] “indigene”, “persons of Russian origin”,^[36] etc. The legal meaning of these terms was often uncertain and changeable, depending on domestic policies. The religious aspect also played a rather important role in the definition of their content. In particular, the term “persons of Russian origin” was introduced for the first time in 1867 with the purpose of giving preferences to Russian officials in the Kingdom of Poland as opposed to persons “of Roman Catholic faith”. Throughout the second half of the nineteenth century, this term was interpreted in different ways. Multiple interpretations finally forced appropriate departments to express their views on this matter. In his explanatory note to the Senate, the Minister of Justice set up basic criteria for identification of “persons of Russian origin.” He claimed that only the born-and-bred Russian people and not aliens could observe Russian state interests which were the duty and the task of any government. Since the “physiognomy” of a people and its essence is predominantly determined by faith, only Orthodox believers could be deemed the “persons of Russian origin”.^[37]
Thus, there were standards in the law, according to which religious affiliation gave certain advantages in civil rights. But much more widespread was the practice of invoking religious affiliation as a barrier or impediment, and of using it as a seed-plot for “burgeoning” of numerous restrictive rules.
It is well known that as a result of the judicial reform of the 1860s, physical persons became subjects of civil law irrespective of nationality, religion, or estate.^[38] In pre-revolutionary and the latest scholarly literature it has been emphasized that the existing few restrictions were applied primarily to women and in part to Jews, and that Russian legislation, with rare exceptions, did not restrict the legal status of non-Russians (in particular, their ability to enter government service,^[39] to own property, etc.).
Although the basic regulations of civil law contained very few such restrictions, if any, in reality there were all sorts of supplements and comments that imposed restrictions on the basis of ethnicity and/or confessional status. In the literature (both pre-revolutionary and Soviet) the most thorough study is given to restrictions applied to the country’s Jewish population. Restrictive rules related to Muslims have been studied to a much lesser extent, as they were not necessarily registered in the laws in distinct way. Therefore, analysis of all-imperial legislation “in its pure form”, though obviously important, does not always make it possible to estimate correctly the real position of this or that ethno-religious group of population in the Russian Empire. Moreover, the imperfection of laws and their internal contradictions resulted in numerous “by-laws” (supplements to the articles of laws, comments, circulars of the Ministry of Justice^[40] and Ministry of Interior, “explanations” of the Senate, etc.). These interpretations and explanations quite often transformed the essence of a law beyond recognition. As this took place, the character and direction of interpretations and explanations varied depending on the political situation.
The restrictive component in Russian legislation underwent significant evolution, from the prevalence of religious concerns at earlier stages to the gradual domination of national motives at later stages. In the early twentieth century restrictive rules had various, but predominantly ethno-religious bases, while multiple, intertwined religious and national motives of restrictions quite often took such bizarre forms and combinations that they gave rise to numerous discussions in the legal historical and dogmatic literature. The study of restrictive rules in Russian legislation, taking into consideration the time and circumstances of their appearance and the history of their transformation (sometimes failures to repeal or alter them), suggests the prevalence of religious or ethnic components in state politics at various stages. One more circumstance also deserves attention: the extent to which the analysis of restrictive rules makes it possible to find out the nature and specificity of the state policies related to individual Muslim peoples of the Empire.
Analysis of the restrictive rules in the Russian legislation in relation to the Jews (undertaken especially by pre-revolutionary scholars such as V. I. Boshko) shows quite convincingly how tightly religious and ethnic components were interlaced in the motivation of restrictions. One thing at times obscures another, thus hiding the true motivation. Such analysis in relation to the Muslim population of the country is virtually absent. It would be hard to justify the fact that both pre-revolutionary and modern legal historical literature has given so little attention to these issues. Pre-revolutionary literature did so due to the lack of qualified lawyers and jurists among the Muslim intellectual elite (as confirmation, the contents of the only Tatar-language magazine dealing with legal issues, “Xoquq vä häyat”, may be referred to). Soviet literature avoided this topic for ideological reasons, while modern literature does so probably due to persistence of earlier thinking.^[41]
In this essay I would like to dwell upon some restrictions, which in one way or another were related to the Muslim population of the country. The case in point is not the whole body of restrictive rules, which existed in Russian legislation and were entered gradually at different stages of its development, but only those that generated vigorous debate in the beginning of the century both in the Russian society and in the circles of the Muslim intellectual and political elite.
These legal rules may be divided by convention into several groups. One concerned the entire non-Russian population of the country; others involved the restriction of the rights of non-Christians (the bulk of such restrictive clauses related to Jews and Muslims); and finally, a less numerous group related to the regulation and, accordingly, deprivation of rights of individual nationalities (mainly Jews).
The law “On Restrictive Standard for Sworn Attorneys of Non-Christian Faith” refers to the second group and primarily related to the Jews. In the early twentieth century, however, as the number of Muslim students in Russian institutions of higher education increased and a secular elite began to appear, this law came to affect directly the interests of the Muslim population of the country.
The liberal judicial reforms of the 1860s did not contain faith-based restrictions on practicing law. Such restrictions, applying to private and sworn attorneys (chastnye poverennye and prisiazhnye poverennye), appeared for the first time in 1889 in the comments to Article 380 of uch. sud. ust. (Foundation of Judicial Institutions). These comments allowed “admission to the ranks of private and sworn attorneys of persons of non-Christian faiths... in no other way than upon the authorization of the Minister of Justice...” (Svod Zakonov, Vol. XVI, part 1, 1892 edition).^[42] In the period of 1905-1906, when the process of renovation of existing legal and political system was initiated, liberally spirited lawyers repeatedly raised the question of the need to revoke such restrictions.^[43] In the context of liberal transformation and increasingly radical public attitudes, the authorities did not abuse their right very much, and from 1904 to the spring of 1908^[44] there were no refusals to admit a non-Christian to the legal profession. This was the case particularly when the matter concerned the small numbers of Muslim lawyers, as the admittance of Gali-Oskar Syrtlanov to the ranks of sworn attorneys in 1908 suggests. The question was raised at the Council whether the candidacy of Syrtlanov as a Muslim, i.e. non-Christian, should be submitted for approval to the Minister of Justice. The question was answered in the negative. The Council thus resolved to decide this question independently, without ministerial approval.^[45]
As the political situation adversely changed for aliens, however, there was a clear strengthening of the restrictive tendencies. Beginning in 1909, the Ministry of Justice started to collect information about the number of Jewish lawyers.^[46] It was found out, that the proportion of assistant attorneys-Jews changed from 9% up to 49%, being most significant in the southwest (Circuit of Odessa Court of Justice – 49 %, Kiev – 41 %, Warsaw – 34 %) and in the metropolitan region (St.-Petersburg – 39 %).^[47] In the spring of 1912, the Governing Senate, on recommendation of the government, ruled that the restrictive Article 380 should also be applied to assistant attorneys, i.e. that it was necessary “to ask the authorization of the Minister of Justice” for their admission.^[48] The absence of direct indications in the law itself necessitated invoking arguments of political and practical expediency as substantiation. Moreover, in defiance of the accepted rule that “exclusive laws do not suggest extended application, exemptions from general law in no case should be extended beyond the limits, in which they are enclosed”,^[49] the Senate extended the purview of the restrictive standard. Shortly afterwards, Minister of Justice I. G. Shcheglovitov expressed his intent to deny Jews access to the legal profession entirely for several years, “pending the time when the number of Jewish lawyers goes down to 3%”.^[50]

At the same time this problem directly touched the Muslims: in the spring of 1913 the Minister of Justice refused to approve the Muslim candidate Sh., who graduated in 1912 from Faculty of Law of the St.-Petersburg University as an assistant sworn attorney.^[51] One year later, in the spring of 1914, another two applicants were rejected: the ex-Deputy of the Second and the Third State Dumas S. Maqsudi and I. A. Akhtyamov.^[52] Finally, in 1915 the Minister of Justice did not approve the candidacies of Shakir Mukhamediarov and Fuad Tuktarov.
In the spring of 1913 press reports stated that the Muslim fraction put forward a legislative proposal to the Duma concerning the revocation of religious restrictions on admissions to the legal profession.^[53] Nevertheless, Muslims’ Kadet allies refused to sign it,^[54] the draft law remained unintroduced to Duma.^[55] About a year later, in the spring of 1914, a similar draft was put forward by the fraction of national freedom. The Commission of the Third Duma on judicial reform advocated the revocation of restrictive comments to Articles 308, 406 and 407, “as based on the unjustified distrust in individuals of non-Christian faith – and, besides, as inconsistent with granted right of religious freedom”.^[56] Quite logically, the right-wing Oktobrist majority in the Judicial Commission of the Fourth Duma blocked the Kadet draft, having approved simultaneously the Progressive Bloc draft related to Muslim lawyers (a draft Law “On Revocation of Restrictions of Rights to Join the Estate of Sworn Attorneys for Persons of Muslim Faith”^[57] was put forward by Progressive Bloc. Among the 54 deputies who signed it, there were several members of Muslim fraction: Ibn. Akhtyamov, M. Dzhafarov, G. Yenikeyev, G. Baiteryakov, M. Minnigaleyev) having extended it also to Karaims.^[58] However, I. G. Shcheglovitov recognized this draft law as “unacceptable,” and the government backed this opinion of the Minister of Justice at its session of 20 March 1914.^[59]
At its session on 29 December 1915, the Council of Ministers considered and affirmed the decrees drawn up by the interdepartmental commission chaired by Deputy Minister of Justice A. N. Verevkin. Among the affirmed decrees there was a clause providing for the unimpeded admission “to the ranks of sworn attorneys and their assistants of Mohammedans and Karaims, in the absence of discrediting evidence”.^[60] This government decree was a sort of concession to the Muslim population, as the percentage of Muslim lawyers was so small that they did not seem “dangerous” to the authorities. More dangerous and unacceptable, they reckoned, was the inflow of the Jews into jurisprudence. And thus the second clause of the government regulations established a quota for the Jews at “15% for Warsaw, Vilna and Odessa Circuit Courts of Justice, 10% for Petersburg and Kiev circuits and 5% for other judicial circuits”. These quotas were extended also to assistant sworn attorneys and sworn solicitors (prisiazhnye stryapchie) at commercial courts. Thus, on the eve of the autocracy’s fall, a certain compromise was reached, but this was a compromise resulting in part from the war-time conditions^[61] and was not fully satisfactory to either the authorities or the public. The history of this restrictive rule offers rather eloquent evidence that behind the outwardly religious character of this restriction on the civil rights of a part of population, national motives were hidden.
Another restrictive rule related to this sphere concerned the right to acquire and to possess real estate by persons of non-Christian faith. According to Article 262 of the “Regulations for Administration of Turkestan Krai”, “acquisition of lands and, in general, immovable properties in Turkestan Krai by persons not having Russian citizenship, as well as by any, except for the indigenes, persons of non-Christian faiths, is prohibited”. Article 136 of the “Regulations for Administration of Oblasts” sounded similar, prohibiting the acquisition of land by persons of non-Christian faith in Akmolinsk, Semipalatinsk, Ural, and Turgai oblasts.^[62] Numerous claims of Muslims to revoke this restriction remained unanswered, as this touched direct economic interests of the Russian population, primarily of borderland officials and Russian merchants. This restrictive rule was ostensibly based on the religious principle, but rather evident is an underlying economic foundation of the problem and its national character. Indeed, this restrictive measure was not aimed at all Muslims, as the local indigenous population maintained its property rights, but primarily at “Muslims of internal Russia”, i.e. Tatars. It was not a mere accident, that the authorities at that time were seriously anxious about the threat of the expansion of Tatar influence in the Central Asian region, and were fighting against “pan-Islamism” and “pan-Turkism”, as Volga Muslims were believed to be ideologists and conductors of these ideas.
In the background of another restrictive rule, the prohibition on non-Christians to trade on Sundays and Christian holidays, despite outwardly religious motivation, underlying economic reasons were also rather obvious. These became apparent at Duma debates about the draft law “On Normal Rest of Sales-Clerks”. A proposal to make Friday and Saturday days of rest for Muslims and Jews respectively was rejected by a Duma majority. Those opposing this amendment emphasized the complexity of this problem because of “colliding economic and religious interests”,^[63] repeatedly referred to the expansion of Tatar merchants. As a consequence, even the concession of the government to allow local governments to determine days of rest with due regard to local religious and other traditions was rejected by a united right- and left-wing majority of Duma.
Thus, the example of only several restrictive rules preserved in the laws of that time offers rather eloquent evidence that the motivations for restrictions and prohibitions, as well as for privileges and preferences, were often only outwardly religious. Hiding behind them was frequently a desire to confine the growing influence of non-Russian nationalities in various spheres of the public, economic, and political life of the country.

The Legislative Activity of the Muslim Fraction in the State Duma

The inception of a civil society and a constitutional state system in the Russian Empire dates from the first quarter of the twentieth century. Despite many impediments on this road and the undeniable inconsistency and “immaturity” of Russian constitutionalism, this process was irreversible. Established in accordance with the Law of 6 August 1905 and opened in April 1906, the State Duma in just a couple of years became as integral an attribute of political life in the country as any other state power institution.
A characteristic feature of the Russian parliament was the presence of groups and fractions associated on national, religious or estate (estate-ethnic) foundations. One such association was the Muslim fraction, which was the only fraction created on the religious principle and stood as a mouthpiece for Muslim interests in the protoparliament. Its appearance in the Duma was regarded by liberal contemporaries as graphic evidence of the fact that “Turko-Muslims” are the “type of emerging nation”, in which the very “foundations of national association have not yet crystallized”.
However, not only immaturity of individual “Muslim” nationalities and poor identification of their national or territorial interests underlay this unusual parliamentary association. It was encouraged by an electoral system that divided the voters by national and religious criteria. It was, then, Russian legislation itself (particularly as concerns religion) that consolidated Muslims, for that legislation had preserved religious differences in Russian society and had made them the basic principle of the imperial state.
The promulgation of the October Manifesto, which proclaimed basic democratic freedoms, and the publication of the “Fundamental Laws of Russian Empire” (April 1906) created the necessity of bringing the existing Russian legislation into compliance with these principles. While on the subject of the evolution of Russian legislation on Muslims, it seems quite important to study the draft laws which were debated within the Russian parliament and related mainly to religious issues. These drafts, and the discussions of them, reveal the state’s attitude towards various religions, and question of conversion from one religion into another, which was especially topical for Volga Tatars. Although the primary legislative initiative belonged to the government, the deputies were not completely deprived of it. Each of the four Dumas brought a contribution to the change of Russian religious legislation. The first two Dumas were of rather short duration; the last one functioned under difficult conditions of the World War. Only the Third Duma functioned for its full term. However, its activity also was not very productive, since the Conservative State Council often blocked the enactment of draft laws.
In the First Duma, as is well known, Muslims were not yet embodied organisationally and formed a bloc with Kadets, who introduced 80 % (12 of 15) initiatives. Therefore, while not introducing independent drafts, Muslims supported the draft laws of Kadets. Amog those drafts were the following: “Draft Law on Freedom of Conscience”, “Fundamental Regulations of Laws on Civil Equality” and “Draft Law on Unions” (Sh. Syrtlanov); “Declaration for Alteration of Laws on Judicial System and Judicial Proceedings” (A. Akhtyamov); “Draft Law on Press” (S.-G. Alkin, A.-M. Topchibashev, S.-G. Jantyurin), etc.^[64] Because of the short duration of the First Duma, none of the named drafts became law.
In the Second Duma, Muslim deputies also supported Kadet initiatives (6 of 15) with their signatures. Among them the most important was “Draft of the Basic Regulations on Revocation of Restrictions on Political and Civil Rights Connected with Religion and Nationality ” (carrying signatures of 18 deputies-Muslims).
In the third Duma, fractions as small as the Muslim one (numbering only ten) were not able to act independently and could make use of their power to initiate legislation only by enlisting beforehand the support of some larger fraction or a group. For a number of reasons (the small size of the fraction, the domination of Duma by the moderate right-wing body of deputies, who were unwilling to recognize the wishes of Muslims), no independent initiatives or major proposals were introduced by members of the fraction. Indeed, the Muslims belonged to the group of united opposition (Progressive Bloc, Kadets, Trudoviks, and Social Democrats) which introduced 13 draft laws.^[65] For the most part, members of Muslim fraction restricted themselves to contributions at discussions of those draft laws that were most important (drafts on religious issues, holidays and rest-days, national education, the unsatisfactory position of spiritual directorates when discussing and voting on the budget, etc.). Of all the proposals and amendments introduced by Muslim deputies, very few were taken into account (granting privileges to Muslim clergy at military service) and entered into appropriate articles of laws.
In the Fourth Duma the initiative belonged to the Progressive Bloc, rather than to the Kadets. The six members of the Muslim fraction participated in working out the draft laws of essential (but not top-priority) importance for the Muslim population, in particular “On Revocation of Restrictions on Rights for Joining the Estate of Sworn Attorneys for Persons of Muslim Faith” (Progressive Bloc member M. Dalgat) and “On Granting OMDS^[66] the Right to Issue Certificates for the Title of Male and Female Teachers of Muslim Parochial Schools (Mektebes and Medreses)” (Ibn. Akhtyamov). They also participated in discussions of various problems at fraction meetings and in commissions. However, none of the proposed drafts was enacted into law.
Indeed, given the short duration of the first two Dumas and the composition of the Third and the Fourth, Muslim drafts virtually had no chance to become law. But in that case it was probably more important to demonstrate parliamentary competence – that is, the ability to put claims in the specific form of a legislative act, and the talent to find allies in difficult conditions. Deputies-Muslims rarely succeeded in this.
Because the majority of religious and other draft laws regarding the legal status of Muslims discussed in Duma never emerged as laws, the resulting legal void was in part filled by government circulars and decrees. The practice of “decree-extraordinary” legislation became widespread. Consequently, governmental decrees, ministerial circulars, and the interpretations of the Senate, in the absence of adequate laws, defined many aspects of Muslims’ status in this or that legal sphere. Owing to this widespread practice, controversial points were regulated through provisional rules, the character of which depended not so much on law, but on the specific political situation, the alignment of forces in the struggle between “society” and “power”. That character was more often and to a greater extent determined by political expediency than by law.

Conclusion

The history of Russian statehood in the early twentieth century exhibits a pronounced tendency towards the unification of all-imperial law and the creation of a uniform legal space. However, when implementing transformations (creating all-imperial civil and criminal codes, effecting judicial reform, during half-hearted attempts of parliamentarians to bring existing legislation into compliance with proclaimed political changes, etc.), the state inevitably, by force of circumstances, had to face the realities of a multiethnic empire, with its national and religious diversity. The country’s historical road, the peculiarities of the Empire’s construction, the reservation for Russian Orthodoxy of ideological predominance – all this shaped Russian legislation and public legal conscience.
Since the appearance in Russia of numerous non-Orthodox subjects, the religious factor, being essential in any medieval society, was of extraordinary importance both for the formulation of the state national politics and in the formation of imperial legislation. It would seem that as religion ceased to play a dominant role in public and state life of peoples, influence of this factor on the legislation should have decreased accordingly. By the beginning of the twentieth century, however, the religious factor substantially retained its importance and impeded the modernization and unification of imperial legislation, demonstrating a high-degree interrelation between religious and ethnic factors. As before, the body of ethno-religious factors formed the foundation of Russian imperial law as complete system.
Religious legislation, proceeding from the “ranking” of religions, quite often regarded religions as national beliefs. Despite the formal declaration of the freedom of conscience in the Manifesto of 17 October 1905, there was still a dominant church that retained the exclusive right to proselytizing. Laws impeded conversion from one religion to another, ignoring at the same time the possibility of not belonging to nay religion at all. Protective tendencies in religious legislation were most obvious in relation to the Tatars, and to a lesser degree in relation to other Muslim nationalities of the Empire, and this provides evidence for the differential nature of national policy.
The system of governing different regions and peoples formed by the early twentieth century evidently reflected the chronological non-uniformity of the incorporation of specific regions into the unified state. At later stages of incorporation of new lands into the Empire, ethno-social factor had a greater impact on the administrative arrangement of borderlands, which is evidenced by the large-scale incorporation of “alien” borderland elites into the administration and by consideration of the local specificity, traditions and local rules when formulating legislative standards (Caucasus, Turkestan, Semirechye region). This local specificity was also taken into account during judicial and local reforms in the “constitutional period” (1906-1914), despite an obvious tendency towards the unification of the administrative and judicial system of the country.
Finally, given the standards established in Russian legislation, faith or nationality of a subject of law offered certain starting advantages in civil rights, or – as was much more often the case – served as the basis for numerous restrictive rules. Analysis of the latter demonstrates quite convincingly how tightly religious and ethnic components were interlaced in the motivation of such restrictions, one thing at times obscuring the other, thus hiding the true motivations. However, the general evolutionary tendency of the restrictive component in Russian law can be characterized in the following way: from the predominance of religious motivation at earlier stages to gradual the domination of national motivations at later stages of Russian statehood.
The essential role of the religious factor in Russian legislation has resulted, among other things, in a peculiar “politicization of religion”, which became apparent in the beginning of the century. In other words, religious affiliation became a political factor, which was most pronounced in the creation of independent Muslim fraction in the Russian parliament – the only Duma fraction that was formed on religious, rather than on party basis, and claimed to be the mouthpiece for the “Muslim nation”.