Zeitschri des Max-Planck-Instituts für europäische Rechtsgeschichte Rechts R geschichte g Rechtsgeschichte www.rg.mpg.de http://www.rg-rechtsgeschichte.de/rg18 Rg 18 2011 120 – 137 Zitiervorschlag: Rechtsgeschichte Rg 18 (2011) http://dx.doi.org/10.12946/rg18/120-137 Dmitrii Belkin A Two-Headed Janus: Continuity and Change within the Legal History of Jews in Ukraine, 1905–1932 Dieser Beitrag steht unter einer Creative Commons cc-by-nc-nd 3.0 Abstract Continuity and Change within the Legal His- tory of Jews in Ukraine, 1905–1932 This article deals with some crucial aspects of the legal history and culture of Jews in the late Russian Empire and the early Soviet Ukraine, 1905–32. Considering numerous unique archive and printed sources, this paper examines the following fields: the legal and political features of the Jews; the tax on kosher meat; the court cases involving participation by Jews; the development of legal terminology; and finally Jewish lawyers before and aer 1917. The article argues that the so called »Jewish question« was in essence a legal question. The cases presented in this paper prove a continuity of certain norms and practices between the tsarist and Soviet peri- ods. □× 120 A Two-Headed Janus: Continuity and Change within the Legal History of Jews in Ukraine, 1905–1932 In June 1907 Iankel Khaimovich Gertsfeld, a revolutionist, was arrested in Kiev. He was accused of revolutionary propagan- da and terrorism. Apart from other items, the following books Reserachforthisarticlewassup- and pamphlets were confiscated as pieces of evidence from Gerts- ported by the German Research feld’s home: S. Vyshegodskii’s »Tactics of street fighting« (1907), Community (DFG), the YIVO Institute for Jewish Research (New »About territorialism« (1907) and »Government and Duma« York), the Remarque Institute (1906), L. Buechner’s »God and Science« (1906) and R. Jhering’s (at New York University) and »Fight for the Law« (1901). The last pamphlet, a widely known the Harvard Ukrainian Research translationofalectureheldinViennain1872bytheGerman Institute (Harvard University). legal theorist Rudolf von Jhering, stated that the »fight for the I would like to thank Laura En- gelstein, Eugene Huskey, Benjamin law« is mainly an »ethical-pragmatic« rather than a »theoretical« Nathans, Jan Plamper, William issue. According to von Jhering, law is not »thought« but »vital Pomeranz, Simon Rabinovich and power«.1 This pamphlet, one of the incriminating pieces secured the late Cornelia Vismann for their from Gertsfeld’s house, illustrates this article’s theme. In contrast intensive lecture, comments and to the »Tactics of street fighting«, von Jhering’s pamphlet (and suggestions to the different ver- sions of this text. I wish to thank Gertsfeld’s possession of it) reflects a universal phenomenon of Esther Alexander-Ihme for her early twentieth-century Jewish life in the Russian Empire: the help with Yiddish translations, constant struggle for law and legality. and Simon Rabinovich and An- The history of Jews in late Imperial Russia and the early neke Thaler for their help with Soviet Union can be usefully understood in terms of legal history. English translations. I also thank Jörg Baberowski who supported The ›Jewish question‹ was, in essence, a legal question; the Jewish this project at Humboldt Univer- population continuously strove for the rule of law, or legality sity (Berlin), and Michael Stolleis (zakonnost’), as an antidote to »Tsarist arbitrariness« (proizvol).2 for kindly supporting and housing This article deals with some of the legal aspects of Jewish history me at the Max Planck Institute for before and after 1917, concentrating on the territories within and European Legal History in Frank- furt, and the participants in his beyond the Pale of Settlement in the Russian Empire, which seminar for their numerous con- became the Ukrainian People’s Republic in 1917 and the Ukrai- tributions and discussions. nian Soviet Republic in the 1920 s. As one activist in the Ukrai- 1 Rudolf Iering,Bor’bazapravo. nian nationalist movement observed, post-revolutionary Ukraine Perevod Ershova s 13 nemetskogo involuntarily became the site of a »babylonic captivity of an entire izdaniia, Moscow 1901, in: Tsen- 3 tral’nyi Derzhavnyi Istorychnyi nation« – the Jews. Arkhiv Ukrainy (TsDIA), Kyiv, The period between the first Russian revolution (1905–1907) f. 274 (Kievskoe Glavnoe Zhan- and the great upheaval under Stalin in 1932 was remarkably uni- darmskoe Upravlenie), op. 3, d. 130 (Rechovi Dokazy, vyluche- ni u Gercfel’da Jankelia Chaimo- vicha u lypni 1907 r.), 9. (f. = fond; intheLeftandRightBankUk- 4 There was a famine in the Ukraine op.=opis’=register;d.=delo= rainebefore1917,see:Paul (1932–33) which completely al- file) Robert Magocsi,AHistoryof tered the political landscape of the 2 Benjamin Nathans,Beyondthe Ukraine, Seattle 1996, 337–344. republic. The Evsektsia (Jewish Pale. The Jewish Encounter with Pale of Settlement (cherta osed- Section) of the Communist Party Late Imperial Russia, Berkeley, losti) was the administrative term was closed down in 1930. Ac- Los Angeles, London 2002, 326. given to a significant territory in cording to Benjamin Pinkus, 1931 3 Arkhiv Akademii Nauk Ukrainy the Russian Empire, in which per- became the »peak year« of Jewish (Instytut Arkhyvoznavstva), Kyiv, manent residence of Jews was al- legal-courts in the Ukraine (Ben- f. 257, op. 5, d. 7 (Serhii Efre- lowed.ThePalewascreatedin jamin Pinkus,TheJewsofthe mov, Evrejs’ka sprava na Ukraini, 1791 and existed until the Febru- Soviet Union. The History of a Kyiv 1909), 45. To Jewish History ary Revolution of 1917. National Minority, Cambridge Rg18/2011 A Two-Headed Janus: Continuity and Change within the Legal History of Jews in Ukraine, 1905–1932 121 fied in legal terms; a continuum existed in the typology of legal cases.4 As Jewish (legal) history is multi-polar, with each legal case iuridicheskoi nauki). Furthermore, Eugene Huskey defined 1932 as having to be regarded individually, the revolutionary year of 1917 »the beginning of a gradual reor- 5 can by no means be considered »zero hour«. What happened to ientation of Soviet legal policy«, the highly complex and contradictory ›Law‹, or the Tsarist legis- which had the »protection of the lation of the Jews after 1917? In the turn to socialism, was a new status quo« rather than »social beginning guaranteed, as Peter Stuchka (1865–1932), the leading change« at its core. Cf.: Eugene Huskey, Russian Lawyers and the figure of Soviet jurisprudence and legal theory of the 1920s, Soviet State. The Origins and De- pointed out, »in a figurative sense of the word«, by »burning« velopmentoftheSovietBar, the former law (in the shape of the sixteenth volume of the Legal 1917–39, Princeton 1986, 180. Collection (Svod Zakonov) and the fourteenth volume of the 5 On the »bipolar continuum« of Senat’s Cassation decisions)?6 Was the Russian jurisdiction of Jewish political life of the early 20th century from Socialism to the Jews, which according to many contemporaries meant a Nationalism see: Jonathan 7 »legislative pogrom«, the first victim in the fire of the Revolution? Frankel, Prophecy and Politics. The cases presented in this article prove a continuity of certain Socialism, Nationalism, and the norms and practices between the Tsarist and the Soviet periods. Russian Jews, 1862–1917, Cam- In the end, Soviet jurisprudence, said to possess both a destructive bridge, London, New York 1981, 552, 560. and a constructive function, resembled a two-headed Janus. It had Theconceptthatoneshouldgo one face directed towards the past, which, in the case of the Jewish beyond the idea of the year 1917 population was at least as meaningful as its other face pointing as zero hour and investigate towards the future.8 Unsurprisingly, as the majority of the Jews in »processes« rather than »discrete the region remained traditionally observant, Jewish life in the early events«, in: Peter Holquist, th New Terrains and New Chronol- 20 century was still strongly influenced by traditional Jewish law ogies. The Interwar Period (halacha). As Michael Stanislawski states, the »vast majority of through the Lens of Population the Jews in Russia until 1917 (or in Poland to 1939) never became Politics, in: Kritika. Explorations Zionists or Bundists or Autonomists or any other ›ists‹,«instead, in Russian and Eurasian History 4 they were leading traditional Jewish lives, »with one foot in their (2003) 1, 163 (163–175). 9 6 Petr Stuchka,Zametkioklas- tradition and the other outside of it«. The halacha was a point of sovoiteoriiprava,in:Sovetskoe reference both for the Jewish population and for the various pravo 3 (1922), 3 (3–19). By is- governments before and after the Red October. The post-1917 suing the Decree No. 1 the Soviet government’s overwhelmingly negative perceptions of traditional powers indeed condemned the Jewish law is, in my view, one of the focal points for the con- outdated legal system to disappear – together with its norms, bearers tinuity in the legal cases in Ukrainian-Jewish history. The next and institutions – »On Courts« of focal point is the lack of differentiation in the thinking and 11.24.1917 – ref. to: William E. activities of diverse administrations with respect to the Jewish Butler, Soviet Law, Second edi- population. Even after 1917 the destructive effect of the Janus was tion, London 1988, 98. With not capable of destroying past ways of thinking about and reference to the »law disposal« as theoretical problem compare: treating the Jewish population in Ukraine. Michael Stolleis,VomVer- In this article, I will focus on the following fields: the legal and schwinden verbrauchten Rechts, political features that pertained to Jews living in Russia and Soviet in: Summa. Dieter Simon zum 70. Geburtstag, ed. by Rainer Maria Kiesow, Regina Ogorek, Spiros Simitis, Frankfurt am 1988, 68). In 1932 passports with While in 1926 a »fraudulent Main 2005, 539–558 (539).