those criteria, he found the Fundamental Laws pretty good, and thus found the Kadets’ intransigence in the First Duma—based on the gap between the Fundamental Laws and Kadet goals—self-defeating.
Maklakov’s post-revolutionary assessment of the Fundamental Laws, stated most systematically in his 1936 history-memoir, State and Society,1 gave them a high grade. (In chapter 7 we consider claims that the grade was inconsistent with his positions in 1906–7.) But his 1936 analysis omits their most glaring deficiency for purposes of the rule of law—their failure to cabin the lawlessness authorized by the extraordinary security laws. The executive authority, wielded largely by the ministry of internal affairs and its satraps (such as the provincial governors and the land captains), retained the authority to exile, imprison, and fine citizens without check or review by any independent institution. So long as the executive retained its powers under those preexisting provisions, the principle that it could (usually) act only in fulfillment of a duly enacted law was technically fulfilled—the extraordinary security laws had been duly enacted under the laws governing at the time of their enactment. But the Fundamental Laws appeared to allow the extraordinary security laws to continue in effect indefinitely.
In fact it isn’t clear that continued enforcement of the extraordinary security laws was lawful under the October Manifesto and the Fundamental Laws. The security laws had been originally promulgated as “temporary,” lasting only three years unless renewed (the three-year term was changed to one year in 1903). After the October Manifesto and the Fundamental Laws of April 23, 1906, the tsar annually purported to renew the laws himself, without a word of Duma approval. The provision for renewal might, on one plausible reading, be regarded as a lawful authorization to the executive to take future steps, as many laws do.2 In the pre-Duma era, when the tsar was in substance both legislature and executive, the question had been rather metaphysical. On the sixth anniversary of the October Manifesto (October 17, 1911), a Kadet, Nikolai Teslenko, challenged the renewals of 1906 through 1910 as unlawful by asking the prime minister on the Duma floor what measures he was taking to bring action under the laws to a stop. The challenge passed handily (168–123), but had no legal effect. Arbitrary executive action under the laws continued unabated.3 The episode exposed another gap in lawfulness under the new regime—the lack of any institution to resolve disputes between the government and the Duma on the meaning of the Fundamental Laws.
That said, we should be clear that the Fundamental Laws did create a real balance between the popular representative body and the tsar, barring the latter from acting without legislative authority and from generating new legislation without Duma consent. Two provisions addressed these limits, one explicitly, the other rhetorically. Both emerged from hard-fought battles in the special committee drafting the laws. The explicit provision was Article 11, which authorized the tsar to issue decrees, ukases, and so on, “in conformity to the laws.”4 If we put aside foreign affairs, some special provisions such as Article 87, and preexisting provisions such as the extraordinary security laws, those two simple prepositional phrases, if adhered to, would limit the tsar’s executive powers to carrying out legislation enacted with the assent of the Duma. Article 11 was reinforced by Article 108, which allowed the Duma and State Council to question ministers (and heads of separate agencies) “in connection with apparently illegal actions committed on their part or on that of persons and institutions under their departmental authority,”5 and thus to monitor the executive’s compliance with the limits on its power. (Article 108 was the basis for Teslenko’s challenge to the prime minister on the extraordinary security laws.) Oddly, Maklakov didn’t mention an independent judiciary as another vehicle for making Article 11 effective. In any event, Article 11’s restriction of tsarist decrees to rules “in conformity to the laws,” and the provision for parliamentary power to interrogate the government on its possibly illegal acts, provided at least a scaffolding for the rule of law.
The atmospheric change took the form of deleting the word “unlimited” from Article 4’s description of the tsar’s power, so that it would now read “Supreme Autocratic Power” rather than, as it had since the promulgation of the original fundamental laws in 1833, “Supreme Unlimited Autocratic Power.”6 Maklakov lamented that in the special committee that resolved final disputes in the drafting of the Fundamental Laws, none of those favoring deletion of “unlimited” argued for it on the merits, as being beneficial for Russia and even for the tsar himself. Rather, they argued only that the October Manifesto in effect promised removal of the adjective (by requiring that enactment of law be contingent on Duma approval), so that to keep his promise the tsar must remove it. As a result, Maklakov argues, the tsar ever after regarded himself as having fallen into a trap on October 17, clearly an unhealthy attitude if he was to function as a constitutional monarch.7 Certainly much of Nicholas II’s later behavior shows that he never committed himself to the spirit of a limited monarchy.
If these were the key strengths of the Fundamental Laws, what were the vulnerabilities, the weaknesses that Maklakov’s Kadet colleagues had denounced? The outstanding ones were first, Article 87’s authorization of executive actions as temporary substitutes for true legislation, which required approval of the Duma, the State Council, and the tsar; second, the power of the State Council and the tsar to block legislation; and, third, special rules on the budget and the control of the military.
Article 87 certainly gave the executive the power to trump the legislative process temporarily. Its language framed many of the disputes that dominated politics from 1906 to 1917:
[1] When the State Duma is in recess and extraordinary circumstances create the necessity of a measure requiring a legislative deliberation, the Council of Ministers submits it directly to the Emperor. [2] Such a measure, however, may not introduce changes in either the Fundamental State Laws or in the Organic Laws of the State Council or the State Duma or in the provisions on elections to the State Council or to the Duma. [3] The operation of this measure comes to an end if a bill corresponding to the adopted measure is not introduced by the qualified Minister or the Chief Administrator of a separate agency into the State Duma within the first two months after the resumption of the Duma’s business, or if the State Duma or the State Council does not adopt the bill.8
The key sentence for most purposes is the third. It gave the government two options once it issued a decree under Article 87. First, it could introduce a bill in the Duma with the same provisions as the Article 87 decree; but in that case the law would die the minute that the Duma or the State Council voted it down. Under that condition, a simple majority of the Duma could easily kill an Article 87 decree it didn’t like. Alternatively, the government could offer no such bill, in which case the decree would expire automatically two months after Duma sessions resumed.
Maklakov argued for Article 87 on the practical ground that in a country so huge it was essential to have some means for legislation to address urgent problems arising while the Duma was out of session.9 He was quick to recognize that, as it proved, the government’s applications of Article 87 went way beyond that. In fact, the government at least once exercised its power to recess the Duma solely to create the preconditions for exercising Article 87 (i.e., having the Duma out of session).10 But Maklakov offered a qualified excuse for such excesses by pointing to the Duma’s scant attention to legislation, its accumulation of unconsidered bills, and its obsession with trivial bills, known as “vermicelli.”11
