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IN 1766, CATHERINE WROTE to Voltaire that she was working on a special project. This was her Nakaz, or Instruction, intended to be a guideline for a complete rewriting of the Russian legal code. If all went well, Catherine believed, 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.
When Catherine took the throne, the Russian legal code, promulgated in 1649 by Tsar Alexis, the father of Peter the Great, was chaotically obsolete. Since the code had first been issued, thousands of new laws had appeared, often without reference to previous laws on the same subject. There was no complete set of statute books. Imperial decrees by successive rulers conflicted, and ministers and officials issued new laws that contradicted earlier laws without the latter being annulled. The result was that government departments were 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.
Peter the Great’s long reign (1689–1725) had aggravated this chaos. Peter’s emphasis had been on reform by action; half of his decrees had never been recorded. No successor could have had more respect for the great reforming tsar 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 in Russian law worse. Catherine saw it as her task to clarify and complete what Peter had begun. Having absorbed liberal eighteenth-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 European, she decided that 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. 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. The 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.” In 526 articles, grouped into twenty chapters, she 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, published in 1748, which analyzed the structure of societies and the political rights of men 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 had just been published in 1764. This work was a passionate attack on the relationship between crime and punishment in most states of contemporary Europe. 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 what Russia was at that moment, and what it should be; how society ought to be organized, and how government and the administration of justice ought to be conducted. Her tone was that of a teacher rather than an autocrat. Her preamble reminded delegates and readers that the Christian religion teaches people to do good to one another whenever possible. 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 his single person that 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.
Turning to the role of laws in regulating the lives and relationships of people, Catherine 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 that 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. 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 also condemned torture on purely humanitarian grounds. “All punishments by which the human body might be maimed are barbarism,” she wrote.
Catherine wanted punishments tailored 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. Princess Dashkova was so convinced of the right of the nobility to own serfs that she attempted to persuade Denis Diderot of the necessity of serfdom in Russia. Catherine rejected this morally, even if she was politically powerless to change it. When Diderot was in St. Petersburg and criticized the squalor of the Russian peasant, the empress replied bitterly, “Why should they bother to be clean when their souls are not their own?”
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, first to Orlov, then to Panin. Orlov’s opinion, predictably, was flattering. Panin 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 twelve years in Sweden and he 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.
In the version of the Nakaz ultimately printed, Catherine’s frustration regarding serfdom is apparent in the way she uses language. She writes tentatively, almost apologetically, and then quickly backtracks, contradicts herself, and smothers her message. Thus, her effort to say that serfdom should be a temporary institution, that a ruler should avoid reducing people to slavery, and that the civil laws should guard against the abuse of slaves comes out as a disorganized torrent of jumbled words:
Since the Law of Nature commands Us to labor to the utmost of Our power for the happiness of all people, We are obliged to render the situation of those who are subjected as easy as sound reason will allow.… And therefore, to avoid reducing the people to a state of slavery, unless urgent occasion indispensably obliges us to do it; in that case it ought to be done for no private interest, but for the public benefit. However, such occasions seldom or never occur. Of whatever kind subjugation may be, the civil laws should prevent the abuse of slavery, and guard against the dangers which may arise from it.
Two articles that Catherine had copied from Montesquieu were omitted in the final published document. One declared that serfs should be allowed to accumulate sufficient property to buy their freedom; the other that servitude should be limited to six years. To these Catherine had added her own belief that once a serf had been freed, he should never be returned to serfdom. This was also omitted, and neither the Legislative Commission nor Russians ever heard, read, discussed, or acted on any these words.
Catherine made no claim to originality of authorship. When sending a copy of the Nakaz to Frederick of Prussia, she wrote frankly, “You will see that, like the crow in the fable, I have decked myself out in peacock’s feathers; in this work merely the arrangement of the material and here and there a line or a word belong to me.” To d’Alembert, she admitted, “For the sake of my empire, I have robbed Montesquieu without mentioning him by name. If he sees my work from the next world, I hope he will pardon me this plagiarism for the good of twenty million people. He loved humanity too well to take offense. His book is my ‘prayer book.’ ”
The Nakaz was written in the hope that an updated legal code would lead to a more politically advanced, more culturally sophisticated, and more efficiently productive Russia. This did not happen. However, Catherine addressed the Nakaz not only to the Legislative Commission she intended to summon but to the educated public at home and abroad. And when translations appeared outside Russia, even with all the deletions, inconsistencies, and flagrant textual borrowing, it was still a sufficiently impressive document to earn Catherine wide approval. Translations in German, English, and Latin appeared almost immediately. In December 1768 she sent a version to Ferney. Voltaire pretended to believe that the Nakaz was a complete, detailed code of laws and declared that neither Lycurgus nor Solon “would have been capable of its creation.” His exaggerated praise soared into absurdity when he called the Nakaz “the finest monument of the age which will bring you more glory than ten battles because it is conceived by your own genius and written by your own fair little hand.”
The government of France thought otherwise. The monarchy viewed the document as so dangerous that by order of the king, publication in France was banned, and two thousand copies on their way from St. Petersburg to Paris were held at the frontier. Voltaire mocked French censors for banning the work, a compliment, he assured Catherine, that would guarantee its popularity. Diderot wrote, “Justice and humanity have guided the pen of Catherine II. She has reformed everything.” Frederick of Prussia called theNakaz “a masculine, nervous performance worthy of a great man,” and made the empress a member of the Berlin Academy.
The Nakaz was not, as Voltaire rhapsodized, a code of laws; rather, it was a collection of principles on which Catherine believed that good government and an orderly society should be based. In a letter to Frederick, she suggested that she was well aware of the discrepancy between the Russia of reality and the nation she hoped it might become: “I must warn Your Majesty that you will find different places in the document which will perhaps seem strange. I beg that you remember that I have often accommodated myself to the present, without closing the path to a more favorable future.”