Formal mechanisms for the enforcement of property rights and the resolution of disputes are thought to be essential to long term economic development and political stability. But how do these get established and what makes people in a society willing to use them? More recent attempts to create such mechanisms in places like post-Soviet eastern Europe suggest no easy answers to these questions. Creating new laws and new courts to enforce them does not transform a society overnight. Those who study law and property rights in this particular context have lately emphasized the importance of demand in considering these questions. When multiple options are available, why is one form of enforcement chosen over another?
These questions are of interest to historians as well, and in-depth studies of specific local communities can be especially helpful in addressing them, since they enable us to observe people in different social and economic contexts and to make connections across events and over time; they capture the multi-strandedness of society in the past (relevant in ways I will return to shortly). Moreover, a significant part of the archive for any society relates to dispute resolution. These documents are often our most valuable sources, since they contain details that shed useful light on other aspects of the society we are studying. (Think of the information gleaned from court records to study aspects of the British Industrial Revolution, such as time use and textile consumption, or the use of court records to study women’s work.)
So what does historical research tell us about the demand for dispute resolution services in the past? In many societies, people had multiple options: seigneurial courts, church courts, town or regional courts, princely or royal courts, imperial courts. Even enserfed peasants (at least in some societies with serfdom) had choices.
In imperial Russia, disputes among serfs were supposed to be resolved at the local level, through the village commune. On wealthier landlords’ estates this process involved adherence to a set of explicit procedures and resulted in written resolutions (such as that pictured at the top of this post). But some landlords offered dispute resolution services to their serfs (for a fee). This was the case on the wealthy Sheremetyev family’s estates, which were home to some 300,000 serfs across 17 provinces.
The surviving documents for the Sheremetyev estate that I’ve studied most closely (Voshchazhnikovo, which had a population of about 3500 serfs) reveal an interesting trend. From the late eighteenth century on, more and more intra-communal conflict was being resolved through the landlord’s administration. Furthermore, the range of services being offered to serfs was expanding. Serfs from all socioeconomic strata, not only the well off, were paying fees to bring their disputes to the estate administration – as well as fees for scribes and notarial services for land transfers, wills and pre-mortem contracts, credit agreements, marriage contracts, and so on. This significant shift away from communal resolutions, along with the expansion of services offered and the willingness to pay for them (even on the part of poorer members of serf society), suggests considerable demand for an alternative to the default communal process. What made the landlord’s services more appealing than the traditional village venue?
The sources suggest three things:
First, the seigneurial administration had demonstrated that it was trustworthy in other contexts. Decades before the expansion of services described above, the landlord had begun to offer serfs, who were legally denied the right to hold property in their own names, the possibility of buying land in the landlord’s name, which would then be legally signed over to the serf. There are no recorded cases of the landlord exploiting this process or expropriating serfs after they had made purchases. In addition, the landlord’s central administration had shown itself willing to overrule village elites (in favor of poorer serfs) on questions related to the allocation of communal funds and the distribution of poor relief. They also undertook at least one high profile campaign to put a halt to bribery and corruption among their own officials working in the localities.
Second, and in contrast to the first point, communal officials, together with the village oligarchy (often these were one and the same), were perceived as pursuing their own interests at the expense of the less powerful. Documents spanning roughly a century indicate that they were accused of all kinds of corrupt activities including the embezzlement of communal funds, the misallocation of communal lands, and the rental and sale of communal property for their own profit.
Finally, those in the landlord’s administration who ruled on disputes and handed down final decisions were not members of the local community. This was not a manorial court where either the landlord personally or his or her local officials on the ground presided. Depositions were carried out locally and evidence was gathered from locals and then everything was sent for review by officials in the landlord’s central offices in St Petersburg and/or Moscow. All decisions came from the central administration. Similarly all contracts, deeds, and notarized documents were filed with the central office so they could be accessed in case of dispute.
These are, of course, all related and point to the same conclusion: serfs on this estate felt that they would get a fairer hearing from landlord’s officials than from their neighbors. That the estate administration was viewed as a reliable arbiter and enforcer (enforcement is documented) and communal elites were not is important. But so is the fact that those making decisions for the landlord did not, in the eyes of locals, have any direct interest in a dispute or its outcome. One wonders whether the landlord’s services would have held the same appeal if decisions were made by the resident bailiff (a landlord appointee) instead of officials far removed from the local context.
That people preferred to have their cases tried by those other than their neighbors is suggested by studies of other societies, too. Findings for medieval England, for instance, show that despite requirements that serfs use their own lords’ manorial courts, some manorial courts did hear cases from outsiders, and serfs did engage in extra-local forum shopping. This was different from the decision to use a different kind of court – a church court or the royal courts – where it might have been more appropriate to bring a certain kind of case. This was about using the same kind of court (same level, same procedures) but held by a different landlord in a different location.
In a pre-modern context, especially outside large towns, it would have been difficult to imagine that any kind of dispute could have been resolved impartially by members of the same community. The multi-strandedness of these societies – people had multiple interactions with one another in different economic and social contexts – had powerful implications for the alignment of local interests. In the case of the Sheremetyev estates, the landlord’s administration had an established track record of reliability and relative impartiality, making it a more attractive choice than communal justice (with its established track record of corruption and self-enrichment). But a venue in which those handing down the decisions did not know, personally, the parties to a dispute was already a more impartial one in the eyes of many pre-modern villagers.