Three hundred years of legal incapacity in Russia

By Yana Litins’ka

The concept of legal capacity is one of the most important concepts related to the personal status in law. When a person loses legal capacity, it means that he or she is no longer allowed to make decisions for themselves. Instead, a guardian makes decisions for them about things such as what to buy, with whom to live, what treatment should one get. A common reason for depriving people of their legal capacity is, historically as well as today, intellectual or mental disability. But how has the law of a specific state developed to define when persons become unable to make some or all the decisions about themselves? Which criteria have been used? Have these criteria been transparent and non-arbitrary? Who should decide whether a person is incapable: medical professionals or lawyers? In this post, I will focus on the legislative history of Russia concerning the deprivation of legal capacity due to mental disability.

The legislation on the deprivation of legal capacity in Russia was next to non-existing before the reign of Peter the Great. The primary internal concerns of the monarch were related to building a modern, reliable and sustainable system of governance. In line with this aspiration, it was considered that persons unfit to represent the state must not carry out this function. The Decree on Examination of Fools in Senate of 1722 was therefore established. The legislation targeted the noblemen who had inherited their posts as public servants. The Decree made it possible to deprive noblemen of their right to work as officials or as scientists, inherit property, marry and receive an education if they were considered “fools”. A year later, the legislator also laid down the procedure for the capacity assessment. This procedure required that the members of the Senate question a person whose capacity was impugned on any topic. The person in question needed to answer as “a wise man answers” or they would be considered “fools”, and therefore deprived of the aforementioned rights. The criteria for assessment, formulated in terms of being a “wise” or a “fool”, and the possibility to ask about anything, inherently allowed the Senate to have a broad margin of discretion in making the decisions about incapacity.

Senate assembly during the reign of Peter the Great by Dmitry Kardovsky
Senate assembly during the reign of Peter the Great by Dmitry Kardovsky

Linguistically, “fools” in Russian legislation of the eighteenth century were not necessarily persons with mental disorders. The language of the act emphasised behaviour and intelligence, rather than the diagnosis. However, in practice, the Senate’s concerns were related to the differences between the real and fake mental disorders. In 1746 the Senate requested that the Medical Board clarified the scientifically proven methods of recognising mental disorders. The Medical Board’s report stated that a careful and consistent monitoring of the person, as well as a study of their medical records and external detriments of mental health was crucial. These accounts seem to emphasise that despite the fact that initially determination of legal incapacity was considered to be a legal procedure, the assessors – the Senate – struggled with this task and required additional competence.

In accordance with the Decree on Custody Due to Physical or Mental Disorders of 1809, all acts of mentally disordered persons were considered to be void. Assessment of mental disorders was then performed by the medical boards in the presence of those entrusted by the Government, e.g. the governors, prosecutors or nobility. If a person was determined to be insane, the boards were supposed to send the detailed report to the Senate. The Senate’s function was then to decide whether this person was legally capable or not, based on the report. These changes in the legal regulation signified transition of the Senate’s functions to the medical professionals, and a separation of the obligation: the Senate remained responsible for the legal consequences, but regarding insanity, which could potentially trigger incapacitation, was delegated to the medical experts. These amendments to the legislation did not focus on the specification of the criteria for legal incapacity. Mental disability as such could have led to legal incapacity.

Nikolai the First ordered systematisation of all laws of Russia. In the Complete Collection of Laws of the Russian Empire of 1832, the term legal capacity was neither defined nor explicitly regulated. In his monography of 1879, Slonimskii argued that the Russian courts were able to interpret the laws as requiring the recognition of the person’s incapacity only in the context of a specific transaction, rather than a “civil death” or incapacity in all legal relations. However, in practice the courts chose to follow a simpler approach: a person either had a legal capacity for all the legal transactions, or was fully legally incapable. The criteria for the legal incapacity were, similarly to the previous periods, not laid down in the legislation, which resulted in a broad of interpretation thereof. The project of the Digest of Laws of the Russian Empire called for a more detailed regulation of legal capacity, but because it never came into legal force, the regulation and the practice of the courts likely remained unchanged until the end of the Russian Empire in 1917.

In 1922, the first Civil Code of Russian Soviet Federative Socialist Republic laid down the provisions on legal capacity. The Code established that legal capacity was the ability to acquire and exercise civil rights, create civil obligations and execute them. This definition remains unchanged in the modern Civil Code of the Russian Federation. In accordance with Article 8 of the 1922 Civil Code, adults could be deprived of legal capacity because of mental disorders if they were not able to manage their own affairs wisely, and only courts could make decisions on incapacity. A more detailed clarification of the criteria for incapacity was not provided. The criteria were slightly modernised in the Civil Code of 1964: criteria for incapacity were formulated as inability to understand the content [significance] of one’s own actions or to manage them. The same definition is provided in the modern Civil Code of the Russian Federation.

This brief overview of the legislative history indicates that deprivation of legal capacity in Russia has been mostly regulated in broad terms, such as not being a ‘fool’, being ‘wise’, having the ability to understand and manage one’s own actions. The broad formulations of the criteria for incapacity are likely to be the reason for the deprivation of capacity resulting in an incapacitation in every aspect of life. While the deprivation of legal capacity was considered a legal matter, the struggle with the interpretation of the legal requisites can be traced back to the very early legislative history.

Where does Russia stand now in terms of criteria for the declaration of legal incapacity? Has the vagueness of the legislation been replaced by clearer definitions, at least in practice? In my doctoral thesis entitled “Assessing capacity to decide on medical treatment: On human rights and the use of medical knowledge in the laws of England, Russia and Sweden” published in 2018, I analysed the modern interpretation of the criteria for legal incapacity in Russia. These criteria are interpreted in a dramatically different manner depending on the case at hand. In some cases, having “a pretentious hairdo”, having too good or too bad relationships with relatives, being too religious, or not having enough knowledge about Immanuel Kant’s doctrine, can be considered a reason for being deprived of legal capacity. The cases studied suggest that almost any type of behaviour in conjunction with the diagnosed mental disorder may still fall within the ambiguous requirements of the legislation on legal incapacitation. This study serves as a reminder that the deprivation of rights has been based on vague criteria for approximately 300 years. It is time to move away from the approach that the legislator has taken finally to ensure foreseeability and non-arbitrariness for persons with mental disorders in capacity assessment process.

Yana Litins’ka is an associate lecturer in jurisprudence at Uppsala University, Sweden.
Recommended citation
Yana Litins’ka (2019): Three hundred years of legal incapacity in Russia. In: Public Disability History 4 (2019) 8.

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