ON July 30, 1767, Muscovites awoke to find Don Cossacks striding past the Kremlin and knots of Kalmyks from the Caucasian steppes massing outside the Cathedral of the Assumption. In normal times, they would have fled. But that particular day was anything but normal.
Moscow was besieged, but not by marauding tribes. Instead, more than five hundred Russian subjects, Christians and non-Christians, town and village dwellers, aristocrats and artisans, had descended on Moscow not to pillage, but to ponder and propose a new code of law.
The nature of this mission was as unprecedented as the individual who unfurled it:
a young woman who five years earlier had claimed the Russian throne after usurping her husband, Tsar Peter III, supposedly to have succumbed shortly thereafter — all too conveniently and none too believably — to an attack of hemorrhoids.
As noted in Philadelphia Reflections, a year earlier ,in CatherineII wrote to Voltaire that she was working on a special project.
Her Nakaz, or Instruction, and intended it to be a guideline for a complete rewriting of Russian legal code. Catherine believed if it went well , it would raise the levels of government administration, of justice, and of tolerance within her empire.
She also hoped that it would announce to Europe that a new era, informed by the principles of the Enlightenment, was beginning in Russia as well.
It was the work that Catherine considered the most significant intellectual achievement of her life and her greatest contribution to Russia. She began working on the Nakaz in January 1765 and devoted two to three hours a day to it for two years all the while suffering many migraines.
It enhances our comprehension to contrast the outcomes of competing 18th Century implementations of the Constitution idea.
Russia’s Catherine the Great proposed a constitution steeped in the traditions of the Enlightenment, It differed greatly from what would become the American Constitution and the French Rights of Man because it was ultimately designed to define and strengthen the role of the monarch.
Denis Diderot her french protege’ recoiled at this viewpoint, substituting other views. His opening of Observations About Nakaz and Commentary to the Queen, began :
There is no true sovereign except the nation; there can be no true legislator except the people.
Whether looking back to the English Civil War, or forward to future disputes between the Executive and Legislative branches, it makes clear the Legislative branch was dominant, with the Executive branch acting as its agent.
Highlighted in her biography by erenow.com
When CatherineII took the throne, the Russian legal code, proclaimed in 1649 by Tsar Alexis, the father of Peter the Great, was chaotically obsolete.
In the wake of the Russian Smuta (Times of Trouble), the power of the gentry was firmly established and the Russian peasantry became more firmly tied to their gentry’s land.
Furthermore, the secularization spreading from an influx of Western ideas was a threat to Russian piety. Tsar Alexis strove to minimize future unrest with his Ulozhenie (Legal Code) of 1649. This controversial document legalized serfdom (serf is an unfree peasant) throughout the Muscovite Empire.
Imperial decrees by later rulers conflicted. Ministers and officials even issued new laws that contradicted earlier laws without the earlier laws being annulled.
The result , government was disorganized, administration throughout the empire was inefficient and corrupt, and failure to define the authority of local officials had led to landowners taking ever greater powers at the expense of the peasantry.
by Alexandre Benois
Peter the Great’s previous reign (1689–1725) had aggravated this chaos. Peter’s emphasis had been on reform by action; resulting in half of his decrees never being recorded. No successor could have had more respect for a great reforming of the reign than Catherine.
Peter had made Russia into a European power; he had created a Western capital with access to Europe, launched a navy, mobilized a victorious army, brought women into society, demanded religious tolerance, and promoted the nation’s industry and commerce.
But he had died at fifty-two, and in the forty years since his death, lazy and incompetent rulers had made the confusion of Russian law worse. Catherine saw it as her task to clarify and complete what Peter began.
Having absorbed liberal 18th-century political theory, which stressed the power of good laws to change society, Catherine concluded that the remedy for the flaws in her empire would be a new legal code. Because she had reached the throne steeped in the ideas of an enlightened Europe, and decided these new laws should be based on Enlightenment principles.
Her plan was to summon a national assembly elected from all of the free social classes and ethnic groups of the empire. She would listen to their complaints and invite them to propose new laws to correct these flaws.
Before this assembly gathered, however, Catherine decided that she must provide its members with a set of guiding principles upon which she wished the new laws to be founded.
The result was her Nakaz, published under the full title Instruction of Her Imperial Majesty Catherine the Second for the Commission Charged with Preparing a Project of a New Code of Laws.
The final document was published on July 30, 1767, and is, in the view of Isabel de Madariaga, the preeminent historian of Catherine’s Russia, “one of the most remarkable political treatises ever compiled and published by a reigning sovereign.”
Nakaz Eia Imperatorskago Velichestva Ekateriny Vtoryia.
Catherine presented her view of the nature of the Russian state and how it should be governed. She began with Locke’s belief that in an ordered society, law and freedom were necessary to one another, since the latter could not exist without the former.
She drew heavily from Montesquieu’s The Spirit of Law, which analyzed the structure of societies and political rights in their relationship to the state. Of the total of 526 articles, 294 were taken or adapted from Montesquieu.
She also drew 108 articles from the Italian jurist and legal scholar Cesare Beccaria, whose Essay on Crimes and Punishment . His work was a passionate attack on the relationship between crime and punishment in most states of contemporary Europe, and extremely controversial. Beccaria declared that the reform of the criminal, rather than his punishment, should be the purpose of laws, justice, and penal incarceration. Above all, Beccaria was revolted by the near-universal use of torture. Catherine, impressed by this work, immediately invited the author to come to Russia. Beccaria chose to stay in Milan.
Catherine’s Nakaz deals with an immense range of political, judicial, social, and economic questions. It discusses Russia that moment, and what it should be; how to organize society, how to administer government .Her tone seemed a teacher rather than an autocrat.
Christian religion teaches people to do good to one another whenever possible, was the preamble. She expressed the belief that every man wished to see his country happy, glorious, tranquil, and safe, and that people wished to live under laws that protected but did not oppress them.
From these opinions and principles, she proceeded to what she believed were the basic facts about her own empire. “Russia is a European state,” she declared, meaning with this statement to eliminate the Russian’s traditional sense of geographical and cultural isolation, as well as the disdain of Europeans who believed that Russia was only a remote, primitive backwater.
From there, she moved directly to an explanation of the need for absolutism in Russia. The sovereign was absolute, she said, “for there is no authority but that which centers in a single person, which can act with a vigor proportionate to such a vast dominion…Any other form of government risked weakness.
She accepted from Montesquieu a qualification of her advocacy of absolutism; this was embodied in her acceptance of the limitation of the supreme power of the Russian autocrat by certain “fundamental laws.” These “laws” were defined as traditions, habits, and institutions , so deeply rooted in the history and life of a society that no monarch, however absolute, could or would act in opposition to them.
They included respect for the permanence of the nation’s dominant religion, for the law of succession to the throne, and for the existing rights and privileges of dominant social groups, such as the nobility. Montesquieu defined such a state with such a ruler as a “moderate monarchy.” In this sense, Catherine was defining and presenting Russia as a moderate autocracy.
Catherine highlighted the use of laws when she wrote: “The laws ought to be so framed as to secure the safety of every citizen as much as possible.… Political liberty does not consist in the notion that a man may do whatever he pleases;
“liberty is the right to do whatsoever the laws allow.…”
The equality of the citizens consists in that they should all be subject to the same laws.” In confronting the great issue of crime and punishment, she wholeheartedly accepted the views of Montesquieu and Beccaria, agreeing that “it is much better to prevent than to punish crimes.” She insisted capital punishment be inflicted only in cases involving political murder, sedition, treason, or civil war.
“Experience shows,” she wrote, “that the frequent use of severe punishment has never rendered a people better. The death of a criminal is a less effective means of restraining crimes than the permanent example of a man deprived of his liberty during the whole of his life to make amends for the injury he has done to the public.”
Even sedition and treason were given narrow definitions. She distinguished between sacrilege and lèse-majesté (insulting a monarch). A sovereign may be said to rule by divine right, but he or she is not divine, and therefore it is neither sacrilege nor treason to commit a nonphysical offense against him.
Words cannot be called criminal unless accompanied by deeds. Satirical writings in monarchies, even those relating to the monarch—and here she may have had in mind Voltaire’s struggles in France—should be regarded as misdemeanors, not crimes. Even here, care should be taken, because censorship can be “productive of nothing but ignorance and must cramp the rising efforts of genius and destroy the very will for writing.”
She rejected torture, traditionally used in extracting confessions, obtaining evidence, and determining guilt in Russia. “The use of torture is contrary to sound judgment and common sense,” she declared.
“Humanity itself cries out against it, and demands it to be utterly abolished.” She gave the example of Great Britain, which had prohibited torture “without any sensible inconveniences.” She was particularly incensed by the use of torture to force a confession:
What right can give anyone authority to inflict torture upon a citizen when it is still unknown whether he is innocent or guilty? By law, every person is innocent until his crime is proved.… The accused party on the rack, while in the agonies of torture, is not master enough of himself to be able to declare the truth.… The sensation of pain may rise to such a height, that it will leave him no longer the liberty of producing any proper act of will, except what at that very instant he believes may release him from that pain.
In such an extremity, even an innocent person will cry out, ‘Guilty!’ provided they cease to torture him.… Then the judges will be uncertain whether they have an innocent or a guilty person before them. The rack, therefore, is a sure method of condemning an innocent person whose constitution is weak, and of acquitting the guilty who depends upon his bodily strength.
Catherine wanted punishments to fit the crimes, and the Nakaz provided detailed analysis of different categories of crime and the appropriate punishments. Crimes against property, she said, should be punished by deprivation of property, although she understood that those guilty of stealing property were most often people who had none. She insisted that due process govern legal and courtroom procedures. She demanded that attention be paid to the role of judges, the truth of evidence, and the quality of proof required in reaching verdicts.
Some judges should be of the same rank of citizenship as the defendant; that is, his equals, so that he will not think himself fallen into the hands of people who will automatically decide against him. Judges should not have the right to interpret the law; only the sovereign, who makes the law, can do that. Judges must judge according to the letter of the law because this is the only way of ensuring that the same crime is judged the same way in all places at all times. If adherence to the law leads to injustice, the sovereign, as lawgiver, will issue new laws.
Catherine’s attempt to address the problems of serfdom was the least successful part of the Nakaz. She began chapter 11, her effort to deal with serfdom, by saying that “a civil society requires a certain established order; there ought to be some to govern and some to obey.”
In that context, she believed that even the humblest man had the right to be treated as a human being, but here her words collided with the general Russian belief that serfs were property. Even a hint of freeing the serfs met with protest, sometimes from people who prided themselves on their liberalism.
Catherine wrote the Nakaz in French; her secretary translated her manuscript into Russian and other languages. She worked in private until September 1766, when she began to show drafts, to Panin. who was cautious; he saw in the Nakaz a threat to the whole political, economic, and social order. “These are axioms which will bring down walls,” he warned. He worried about the impact that ideas taken from Montesquieu and Beccaria might have on uneducated delegates to the Legislative Commission.
He was especially concerned because direct taxation of peasants and army recruitment were based on the institution of serfdom; he feared that without these two essential requirements, the state would wither economically and militarily. Beyond that, he wondered how freed serfs would live, since they possessed no land. He asked where the state would find the money to compensate landowners for the serfs taken from them and for the land the serfs must farm to survive.
Catherine did not dismiss Panin’s reaction. He was not a large landowner who had many serfs to lose; he had spent 12 years in Sweden and generally favored reforms. She also found that he was far from alone in his opposition.
On completing the original draft of the Nakaz early in 1767, she submitted it for review to members of the Senate. “Every part of it evoked division,” she said later. “I let them erase what they pleased and they struck out more than half of what I had written.” Next, she submitted the draft to certain educated noblemen; they removed half of the remaining articles. With these excisions, the Nakaz as finally published amounted to only one-quarter of the text that Catherine had labored two years to produce.
This was the limit of absolute monarchy: even an autocrat could not override the views of those whose support she needed to remain in power.