“I Write on Human Skin”: Catherine the Great and the Rule of Law
By Robert ZaretskyJuly 30, 2017
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 a normal time. 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 overthrowing her husband, Tsar Peter III, who succumbed shortly thereafter — all too conveniently and none too believably — to an attack of hemorrhoids.
Today marks the 250th anniversary of the Legislative Commission convened by the Empress Catherine the Great. (“Great,” incidentally, is a title she humbly refused when it was offered by the Commission — though her humility takes a hit upon learning that she had also instructed the Commission to offer the title.) Granted, the Legislative Commission does not seem as dramatic an event as, say, the Russian Revolution, whose anniversary is also being marked this year. And yet, while there is no Lenin haranguing supporters at the Finland Station or Bolshevik soldiers storming the Winter Palace, the Commission ripples with great drama and tragedy. More importantly, the event raises hard questions about issues as relevant today as they were 250 years ago — questions regarding the relationships between the ideal and the real, morality and policy, philosophers and kings. What Catherine hoped to do and what she did measures the perhaps inevitable gap between thinkers who propose and rulers who dispose.
Born into a family of obscure German aristocrats, delivered to St. Petersburg at the age of 14, and married in great pomp to the feckless heir to the Russian throne, Catherine found herself alone. While Peter (as the story goes) drilled his military dolls and hanged rats from toy gallows, Catherine turned for solace to, of all people, the French philosophes. Shortly after her wedding, she picked up, if not for very long, Montesquieu’s Considerations on the Causes of the Greatness of the Romans and Their Decline. “When I began to read, it led me to reflect, but I could not read it straight through because it made me yawn.” Declaring it was a “fine book,” the teenager then “tossed it aside to continue getting dressed.”
The book was tossed, but its lessons were not lost. Reflecting on the moral nature of Rome’s greatness, Montesquieu underscores the vital bundle of traits that ensured Rome’s ascension: the embrace of law, cult of self-sacrifice, love of country, and dedication to principles of the res publica. Crucially, Montesquieu also emphasizes the place of war: a nation’s greatness is measured, at least in part, by its military conquests. Only when wars became the means for ambitious commanders to achieve personal power did Rome begin its long decline and fall.
Two decades later, Catherine seems to have recalled the book’s general tenor. The flame of patriotism and foundations of law, she understood, were essential to a nation’s greatness. By the same token, love of one’s country entailed the knowledge of that country’s history and institutions, and love of the law required that a body of laws first exist. This was not the case in the country she now commanded. Instead, there was a chaotic sprawl of conflicting and confusing decrees, a man-made mire more daunting than the miasmal swamps Peter the Great had drained — at the cost of tens of thousands of lives — and on which his city now stood. It was thus with great anticipation that, in 1767, Catherine announced the creation of a Legislative Commission in order to impose order where there was none, using as its guide the Velikiy Nakaz, or Great Instruction, that Catherine had compiled during the previous two years.
Once again, Catherine turned to Montesquieu, this time to his classic The Spirit of the Laws. But she turned to him with scissors and paste in her royal hand. Of the 526 articles forming the first part of the Nakaz, more than half — 294, to be exact — are lifted, word for word, from Montesquieu’s work. Slightly more than a hundred other articles are culled from the Italian thinker Cesare Beccaria’s landmark Of Crimes and Punishments, which had been published in French translation. Unlike the current raft of Russian officials, including President Vladimir Putin, who have been accused of plagiarizing the work of others for their dissertations, Catherine made no pretense that her Nakaz was original. As she happily confessed, “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 20 million people. He loved humanity too well to take offense.” (Putin has yet to confess that he happily stole from a 1978 American textbook, Strategic Planning and Public Policy, for the good of his career, if not his fellow Russians.)
However Montesquieu felt in the next world, the iconic figure of the Enlightenment, Voltaire, insisted that the Nakaz flowed directly from Catherine’s genius. Upon rereading its French translation, the author of Candide gushed to the empress that it was “the century’s most beautiful monument” and more glorious than 10 military victories against the Ottoman Empire. Why? Because the “Minerva of the North” — one of his many monikers for Catherine — had not personally slaughtered the “Turks with her own hand.” But that “beautiful hand had written the Nakaz” all by itself.
Hard though it is to digest Voltaire’s obsequiousness, it is harder to dispute the reasons for his praise. Never before had a ruler — one, moreover, who had recently come to power in unorthodox circumstances and confronted a staggering array of economic, social, and geo-political challenges — marshaled the discipline and dedication to research and write a document, containing 22 chapters and 655 clauses, to found the nation’s legal code. The heavy burden she imposed on herself took its toll; during the two years she compiled the work, she suffered from migraine headaches. Yet the result, as Catherine’s biographer Isabel de Madariaga rightly claims, was “one of the most remarkable political treatises ever compiled and published by a reigning sovereign in modern times.”
Catherine unabashedly took the words of Enlightenment thinkers, but she also took these thinkers as they wished to be taken: as shapers of public opinion, progressive ideals, and public policy. The trick, however, was that the Russian public was utterly unlike the publics in Western countries. An empire peopled by an illiterate and indentured peasantry, an embryonic civil society, a skeletal professional class, and a rustic and reactionary aristocracy was an unlikely test case for enlightened principles of governance. No less daunting was the sheer size of Catherine’s empire. Neither a monarchy (as in Prussia) nor limited monarchy (as with Great Britain) — two less extreme points on Montesquieu’s spectrum of governments — could hope to rule so extensive a nation. It took a despot, and not a monarch, to impose progress.
Yet Catherine recoiled from the title “despot.” Shortly before taking the throne, she wrote in her journal: “Liberty, the soul of all things, without you everything is dead. I want the laws to be obeyed, but I don’t want slaves.” Tellingly, in the Nakaz’s opening line, she announces that Russia is a European state. Distancing her country from the shame attached to “Asiatic despotism,” she aims to divorce herself from the disgrace of being a despot. While despotism may work for the Ottomans or Persians, Catherine insists, it ill-suits a European nation like her own.
Here was the rub: Catherine agreed with Montesquieu’s insight that good laws and good institutions were equally crucial to prevent rulers from running roughshod over their peoples. Yet good institutions, rooted in civil society and independent of the throne, were rare in a world of bound subjects and slave labor, held together by fear of the knout and submission to tradition. And so, while Catherine scrambled to banish the bad odor of despotism, she believed she had no choice but to maintain her despotic powers. She saw that to rule Russia — to continue the work of Peter and introduce reforms that would benefit its people — required her to be their despot.
This tension ripples through the Nakaz. It appeals to a world that ought to be, while accepting the world as it is. Political liberty, Catherine noted before becoming Empress, requires that citizens “find themselves under the protection of the law, which causes one citizen not to fear the other.” On the other hand, it is good to fear one’s ruler. Yes, laws “must be sacred to a monarch, for they remain forever while subjects and kings disappear.” But, in a sleight-of-hand, she then concludes that it is really the state — which does not rhyme with ruler — that “has every interest in keeping strictly to the laws.”
When it came to the matter of crime and punishment, however, Catherine proved to be more enlightened than not only her contemporaries, but also the rulers in Russia and the United States in our own day. Scarcely had she ascended to the throne when she sent a generous amount of money to the family of Jean Calas, a victim of religious fanaticism in France. In 1761, the Catholic parlement in Calas’s native city of Toulouse had charged the Protestant merchant with the murder of his son. The cause, they alleged, was that Calas senior had been enraged by his son’s decision to convert to Catholicism. Because their case was based entirely on prejudice and innuendo, the city and church authorities, desperate for a confession, painstakingly tortured Calas in a public ceremony. Finally, an exasperated executioner garroted the unjustly condemned man, broken on the wheel but insisting on his innocence, and burned his body.
Soon after learning of the event, Voltaire launched a campaign to reverse the court’s charges against Calas and revile those responsible for them. It was a decision requiring great valor and verve, the latter of which Voltaire generally had much more of than the former. This time, though, he summoned both. In his many months of pamphleteering and corresponding, he galvanized public opinion and goaded royal officials with a single message: Écrasez l’infâme. In his plea to stamp out the infamous thing, by which Voltaire meant religious fanaticism and superstition, Voltaire achieved his goal: the Toulouse parlement’s decision was reversed, Calas’s innocence was restored, and his family, which had been forced to flee their home, was reunited.
Voltaire’s campaign enthralled Catherine. After Catherine sent the generous financial gift to the Calas family, it evoked, all too predictably, Voltaire’s obsequious praise: the philosophes, he declared, “are at your feet.” But it was also heartfelt: the Calas Affair had deeply disturbed Catherine’s sense of justice. There was much sincerity when she told Voltaire that the Calas family and the world owed him everything: “You have combated the massed enemies of mankind: superstition, fanaticism, ignorance, intrigue, evil judges, and the abuse of power.”
The Nakaz was Catherine’s means to join forces with Voltaire. She declared that punishment should be preventive, not retributive, and was especially unforgiving on the use of torture. In a proposition disputed by our own aspiring despot, she declared: “The innocent ought not to be tortured; and in the eyes of the law, every person is innocent whose crime is not yet proved.” Not only must torture never be used to secure a confession of guilt, but it was also impermissible as punishment. Its usage, she affirms, “is contrary to all the Dictates of Nature and Reason; even Mankind itself cries out against it, and demands loudly its total Abolition.”
On the eve of the Commission’s opening, the British envoy to Russia reported that everyone could “think and talk of nothing else, and in seeing the representatives of several nations, so very different both as to dress, customs, and religion […] assemble in their capital, they are apt to conclude that they are now the wisest, the happiest, and the most powerful nation in the universe.” In a letter to Voltaire, Catherine echoed this upbeat account: “I believe you would enjoy this assembly, where an Orthodox Christian, heretic, and Muslim listen to a heathen, frequently seeking amongst themselves a middle position.” Having forgotten the habit of burning one another at the stake, she continued, they would never again contemplate the act. Instead, they would say to those who sought to burn a heretic, “He is a man, just as I am; and according to Her Majesty’s Nakaz, we are obliged to do as much good, and as little harm as we can.”
In all likelihood, Voltaire no more believed Catherine’s story than we do, if only because it resembled his own story, told 30 years earlier in his Philosophical Letters, of the tolerance shown one another by Jews, Christians, and Muslims in the London Stock Exchange. Still, both tableaux ignore reality in order to project a better reality. Hence the dazzling pomp and circumstance with which Catherine opened the convention. Draped in a majestic imperial robe and flanked by court officials, the empress looked on while her vice chancellor, Alexander Golitsyn, delivered the official welcome. He reminded the representatives why they had been called to Moscow — to work toward “the common good, the felicity of mankind, and the introduction of good manners and humanity, tranquility, security, and felicity to your dear fatherland.” All five hundred or so deputies then filed past Catherine, kissing her hand.
It was all downhill from there. The deputies were read the riot act: they were forbidden from interrupting or punching one another. (They would have had to use their fists, since swords were also forbidden.) Brawls, though, were the least of Catherine’s concerns. Each representative had, in effect, been deputized to present a list (a miniature nakaz) of proposals and grievances from their locality. Compounding the sheer number of nakazes was, in many cases, their excessive length and execrable literary quality, making the task of reading them downright Sisyphean. Moreover, as absolute beginners in public debate and policymaking, the deputies had to juggle strange rules of decorum with equally strange political concepts.
Though she observed the opening sessions, Catherine had, like the god of Voltaire’s imagination, deliberately removed herself from her creation. Unlike Voltaire’s god, however, Catherine could not ignore her creation’s sputtering. She streamed dozens of memos to her officials, venting over the sluggish pace of their work. In the hope of jolting the commission, Catherine peremptorily moved the proceedings, in the dead of winter, from Moscow, a city she so disliked, to her beloved St. Petersburg. But the change of scenery failed to alter the speed of the commission’s deliberations.
Tellingly, the only subject that galvanized the aristocratic deputies was serfdom. Though Catherine had been in power for five years, she was caught off guard by the vehement opposition to the slightest amelioration of the system of indentured servitude: it was a world over which even the Minerva of the North was powerless. Her chief minister, Nikita Panin, blurted: “These axioms capable of toppling walls.” Twenty years after the commission, Catherine remained stunned: “You hardly dare say that [the serfs] are just the same people as we; and even when I myself say this I risk having stones hurled at me […] I think there were not even 20 persons who would have thought about this subject humanely and as human beings.”
By the end of 1768, as her enthusiasm dimmed and her attention turned to imminent war with the Ottoman Empire, Catherine postponed the sessions. She never reconvened the Commission, even after Russia emerged the battered victor of the long and costly Russo-Turkish War in 1774, and the codification never crystallized. To be sure, the promise of the Nakaz was not forgotten by enlightened opinion in Russia and abroad. Translated immediately into English, German, and French, it was banned by Louis XV — an act that, inevitably, bolstered Catherine’s standing among the philosophes — but was widely available in bookstores in St. Petersburg and Moscow.
In the end, did any of this matter? Clearly, for Russia’s millions of serfs, it did not. As the recurrent spasms of peasant revolts revealed, their lives remained as grim as ever. Nevertheless, Catherine made certain that a number of the Nakaz’s principles, particularly those dealing with crime and punishment, found their way into Russian law and helped prepare the ground for the serfs’ emancipation a century later in 1861. But Catherine’s failure to realize her greatest ambitions also reminds us of the limits placed on even the most enlightened and energetic ruler. Catherine made this point, as only she could, in a conversation with Denis Diderot, the editor of the Encyclopédie and the Enlightenment’s most original and radical thinker. “While you write on unfeeling paper,” she told the philosophe, “I write on human skin, which is sensitive to the slightest touch.” Two hundred and fifty years later, in a world where autocratic thugs reign at the two extremes of the Western world, the realism and humanism espoused by a Russian empress are as unexpected as they are urgent.
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