The outstanding qualities of the peasant’s mind, especially of one inhabiting an environment as harsh as Russia’s, derived from the fact that he lived at the mercy of nature. To him nature was not the rational abstraction of philosophers and scientists, but a capricious force that assumed the shape of floods and droughts, of extremes of heat and cold, of destructive insects. Being willful, it was beyond comprehension and, of course, beyond mastery. This outlook bred in the peasant a mood of acquiescence and fatalism: his religion consisted of magic incantations designed to propitiate the elements. The notion of a supreme order permeating alike the realms of nature and law had for the peasant no meaning. He thought rather in the archaic terms of Homeric epics in which the whims of gods decide human destiny.
Although he had nothing resembling the concept of natural law, the muzhik had a sense of legality rooted in custom. Some students of the subject believed that the Russian village had a system of legal practices that fully equaled that embodied in formal jurisprudence.47 Others denied that Russian peasant custom had the necessary characteristics of a genuine legal system, such as cohesion and uniform applicability.48 The latter view seems the more convincing. Russian peasants knew law (lex) but not justice (jus). This is hardly surprising. Self-contained and largely isolated communities have no need to distinguish between custom and law. The distinction first arose in the third century B.C.E. as a result of practical problems raised by Macedonian conquests which for the first time brought under one scepter scattered communities with the most diverse legal customs. It was in response to this situation that Stoic philosophers formulated the concept of the law of nature as a universal set of values binding mankind. To the extent that Russian rural communities continued to lead isolated existences they had no need for a comprehensive system of legal norms and were content with a mixture of common sense and precedent, settling their disagreements informally, much as do families.
This is seen in the fact that the rural courts run by peasants for peasants could show wild swings in their verdicts without revealing patterns. One student of the subject concluded that peasants viewed law “subjectively” rather than objectively, which really meant they knew no law.49 Others conveyed the same idea by claiming that the muzhik acknowledged only “living law” (zhivoe pravo), judging each case on its own merits, with “conscience” as the decisive factor.50 Whether or not one is justified in regarding such practice as falling within the definition of law, it is certain that the Russian peasant treated ukazy issued by the government not as laws but as one-time ordinances, which had the effect of forcing the authorities to issue repeatedly the same orders, or else the peasant paid no heed:
Without a fresh ordinance, no [peasant] will carry out [a previous directive]: everyone thinks that this directive had been given “for that time only.” An order is issued forbidding the cutting of birch trees for the construction of May huts. Where the order had been received, that year no birches were cut. The following year no order came out and the people everywhere proceeded to build May huts. A “strict” instruction is issued to plant birches along the streets. It is done. The birches dry up. The next year there is no directive, and therefore no one replants them: the district officials themselves forget all about it. The district official … reasons like the peasants that the directive had been given for that one occasion only.… It is time to pay taxes. One might expect everyone to know from experience that they must be paid when due, that they will not be omitted. And still, without a special and, moreover, stern directive no one, no rich peasant, will pay. Perhaps [it is thought] they will manage without taxes …51
This attitude toward law, as directives issued for no discernible reason and, therefore, binding only insofar as they are imposed by force, prevented the peasant from developing one of the basic attributes of citizenship.
The notion advanced by Slavophile and Populist writers that the muzhik had a system of law and, moreover, one based on superior moral principles was challenged by jurists and practicing lawyers. There are interesting remarks on this subject by an attorney who had much professional experience before the Revolution with peasant legal practices.
Liberal minds in Russia were infected with Romanticism and saw in customary law some sort of peculiarity of Russian life which, allegedly, distinguished Russia favorably from other countries.… Many people collected materials on customary law; attempts were made to analyze it and efforts of a rather feeble kind were undertaken to ascertain its norms.
All these attempts came to naught for a simple reason: there was in Russia no customary law, as there was in general no law for the peasants. Here it must be stated that … every volost’ and volost’ court had its own customary law.… As proprietor of an estate, I had … occasion to establish close contact with the rural population, which turned to me, as a specialist, with requests to resolve all kinds of disputes and misunderstandings in the realm of land ownership and property rights in general. I was commonly appealed to in matters involving divisions of family property. I had in my hands many decisions of volost’ courts, and notwithstanding the habit of making juridical generalizations, I was never able to detect the existence of some kind of general formula which even the given volost’ court would apply to concrete, frequently recurring questions. Everything was based on arbitrariness, and, moreover, not the arbitrariness of the court’s members, consisting of peasants, but that of the volost’ clerk, who awarded verdicts at his whim, even though the members of the court affixed their signatures to it. The people had no faith in the court. The verdict of a volost’ court was invariably seen as the result of pressures from one of the parties or of hospitality in the form of a bottle or two of vodka.… And when the case reached a higher instance, that is, the [volost’] assembly, and subsequently the guberniia office … then the scanty juridical knowledge which the members of the higher instances had at their command was powerless to cope with the arbitrariness, inasmuch as reference to customary law sanctified every lawless act. If this customary law could not be ascertained by specialists with professional training and determined to derive general norms from the practice of customary law—i.e., the decisions of the volost’ courts—then one can imagine what ignorance of laws and obligations prevailed among the population itself in all property matters and all those conflicts which had to and did arise every hour of the day.
Our one hundred million peasants lived, in their everyday life, without law.52
One of the consequences of a poorly developed legal sense was the absence of the concept of human rights. There is no indication that the peasant regarded serfdom, which so appalled intellectuals, as an intolerable injustice: indeed, his often quoted statement to the master—“We are yours but the land is ours”—suggests the opposite. The peasant held “freedom” of no account. Under serfdom, bonded peasants not only did not feel inferior to freemen but identified with and were proud of their masters. The Slavophile Iurii Samarin observed that serfs treated free peasants with contempt as footloose and unprotected creatures. Some of them even viewed the Emancipation as a rejection by their masters.53