Retrospective analysis in managerial thinking at the beginning of the XIX century. According to the report of Prince P.V. Lopukhin to Emperor Alexander I "On the transformation of the Commission for Drafting Laws"

Solovev Konstantin Anatol'evich Doctor of History Professor, Department of History of State and Municipal Administration, M. V. Lomonosov Moscow State University 119991, Russia, g. Moscow, ul. Lomonosovskii Prospekt, 27, of. 2 ksoloviov@spa.msu.ru Other publications by this author

The idea of codification of normative acts in force in Russia was constantly present in the managerial thought and administrative activity of Russia in the 18th century, starting with the establishment of the House of Regulations by Peter I ^{[6, p. 415; 17, p. 68]}. By the beginning of the 19th century, significant negative experience had been accumulated in attempts to systematize Russian legislation, since no monarch had managed to achieve any significant success in this matter throughout the century. A new attempt was made by a circle of people close to Emperor Alexander I (first of all, N.N. Novosiltsev and A.E. Chartorysky) in 1803-1804, under the formal leadership of the "Law-making Commission" of P.V. Lopukhin.

The beginning of studying the results of Lopukhin's work as head of the Commission was laid in the work of S.V. Pakhman, who, however, limited himself to a detailed presentation of the 1804 report without subjecting it to analysis ^{[10, pp. 382-387]}. Next, it is necessary to note the opinion of one of those who was one of the first to set the task of studying the problems of codification of Russian legislation – G.F. Shershnevich, expressed in his essay "The History of the Codification of Civil Law in Russia." He wrote that the two officials who were assigned this job were not able to do it. G.A. Rosnekampf could not cope with it, because "the foundations proposed by himself, firstly, do not resolve the issue of codification tasks, and secondly, they represent... banal truths..." ^{[18, p. 77]}. As for the second official, M.M. Speransky, according to Shershnevich, "he was completely unprepared for the task he was called upon to perform," since he had no legal education, was not familiar "with German legal literature," and "treated domestic legislation with disdain" ^{[18, p. 78]}. Accordingly, according to Shershnevich, codification work in the early 19th century is an example of how a task of national importance was performed by improper means.

In modern publications, attention is drawn primarily to the activities of M.M. Speransky, who overshadowed all those who began this work under Alexander I ^{[14, p. 204; 13, p. 130; 2, p. 138]}. As for the work of the commission in 1804-1807, it is either presented either in a neutral tone, as another of many steps in the right direction, of a preparatory nature ^{[7, p. 45; 1, p. 173]}, or in the form of a statement of results: "a special report was compiled, which analyzed a century of experience. systematization of Russian legislation and a new plan of the Commission's activities was proposed" ^{[15, p. 18-19]}, or with a statement of the lack of results ^{[5, p. 254]}.

This article is devoted to the activities of the codification commission, which was led by P.V. Lopukhin. Lopukhin's career successes (in particular, his appointment to the post of prosecutor general) are often attributed to the fact that his daughter became, in 1898, the favorite of Paul I. But two years before that, P.V. Lopukhin, having left the post of Governor-General of Yaroslavl and Vologda, became a senator and privy councilor, and with Pavel's death, his career not only did not end, but also resumed with appointment to the post of Minister of Justice, followed by promotion to the highest posts. Four monarchs appreciated his knowledge, breadth of horizons and ability to solve the most difficult managerial tasks in a short time. And the fact that this graduate of Moscow University had the views of a moderately progressive European is shown by several episodes of his life. The first one is well known and described in his biographies. This is the preparation of an ordinance "on the elimination of corporal punishment of people over the age of 70" ^{[11, p. 687]}, carried out immediately after Paul I restored corporal punishment for the nobility, abolished by his mother.

The second episode did not become public knowledge, as it was a private correspondence during the period when Pyotr Vasilyevich was in office as Minister of Justice. In June 1805, Titular counsellor N. Novoselsky asked him to solve a case with the emperor. Lopukhin's answer. Verbally, the petitioner was not satisfied. Moreover, he took it as an insult, writing to the minister: "it depended on you to promise or refuse, but to be rude, to scold, to touch the honor of a stranger to you ... was not appropriate for your rank, rank, or the person of a Minister who was honored by the Monarch" ^{[17, p. 200]}. On the same day, Lopukhin sent a reply containing an apology, expressed slightly ironically, but quite clearly.: "Your letter, in which you write that I have scolded you, done rude things to you and acted contrary to my rank, has been received. I offer my humblest gratitude for the instruction, and, realizing the conversation that took place between us, I do not find myself guilty before you, as you believe; but if it seemed offensive ... then I humbly ask you to forgive me, I myself regret that having told the perfect truth, I caused annoyance" ^{[17, pp. 200-201]}.

And then there is a paragraph in the letter, the content of which shows that Lopukhin took the accusations of rudeness to heart. To quote him in full: "You remind me, My Dear Sir, that you are descended from the most ancient Lordship, and about human rights. I feel very strongly myself that nature produces us equally, and I dare assure you that ranks and honors do not blind me in the least. The title of lordship that I bear does not enlighten my mind, it does not warm me in the cold, and it does not make a dark room bright, but it sometimes makes those who do not know me think ill of me than I am, which may have happened to you" ^{[17, p. 201]}. Note here that Novoselsky did not write anything about human rights. On the contrary, he wrote about the antiquity of his family and the original (albeit lost) princely dignity. Lopukhin's addressee thought in class categories and wanted recognition of aristocratic dignity. And Lopukhin, in his reply, uses the term "human rights", which is an explicit reference to one of the most important concepts for the entire complex of ideas of the European Enlightenment – "natural rights" ^{[16, pp.14-15; 19, p. 6; 20, p. 12]}. And the very construction of "human rights" is an allusion to the "Declaration of the Rights of Man and Citizen" adopted by the French National Assembly on August 26, 1789, the first article of which reads as follows: "People are born and remain free and equal in rights. Social distinctions can only be based on considerations of common benefit" ^[14].

We can assume that Lopukhin's knowledge of the key ideas of the European Enlightenment and recognition of their importance for Russia played a direct role in the fact that he replaced G.R. Derzhavin as Minister of Justice precisely when Alexander I became interested in the work on creating a new Code and decided to maximize the work of the "Law Drafting Commission", whose head, Lopukhin became ex officio. The first result of this work was P.V. Lopukhin's report "On the transformation of the Law–Making Commission" (hereinafter referred to as the Report), submitted on February 28, 1804, to Alexander I and, after the approval of the sovereign, became the text of the relevant decree. This report was not written by Lopukhin himself, rather it was a collective work in which several stages can be distinguished.:

Stage 1. Publication in the second issue of the Bulletin of Europe in 1803 of the article by G.A. Rosenkampf "Some remarks on criminal and civil laws in relation to Russia" and its discussion in Russian society as a whole and by representatives of the highest stratum of the Russian managerial elite, in particular. This article was an overview of the work on the systematization of legislation in European countries (with elements of a retrospective analysis). The main conclusion of this article is: "In many European countries, the places established for the compilation of laws fell into the error of the Romans and other peoples, that is, they attempted to collect and combine all private laws. This is an impossible task, and whoever attempts it will soon be exhausted by the various difficulties of such an undertaking. There is also no need for general people's assemblies composed of various ranks of people to draw up laws. From such a crowd, a Babylonian confusion of languages will necessarily take place, and it will never be possible to achieve a theory of universally applicable first principles of legislation. "When all the necessary materials are collected, then a few skilful jurists who have acquired knowledge of jurisprudence and other related sciences through systematic education, under the guidance and supervision of several people who are also enlightened by the teachings, will easily deduce the whole theory" ^[12].

Stage 2. Preparation of the text of the Report by Rosenkampf, with constant discussion of his main ideas with Comrade Minister of Justice N.N. Novosiltsev, who led the work of the Commission on Drafting Laws in 1803 and, to a lesser extent, with another member of the Secret Committee A.E. Chartorysky ^{[3, pp. 175 and 179]}.

Stage 3. Preparation of the final version of the Report. At this stage, the main role is played by the Minister of Justice, that is, by the one who is supposed to submit a report to the sovereign. This role is twofold. Firstly, since he had to present and substantiate the ideas contained in the Report as the head of the Commission, he had to accept these ideas and assimilate them. Naturally, the Report could not contain those ideas and conclusions that Lopukhin could be a categorical opponent of. Secondly. Lopukhin could, if desired, supplement and/or change the text of the Report, but in such a way that additions and changes did not radically change its content. The sources at our disposal do not allow us to establish what Lopukhin's personal involvement was in the preparation of the latest edition of the report. But it is safe to say that this text was authorized by him, as Rosnekampf writes about it ^{[3, p. 183]}.

In this article, we will consider that part of the proposals for organizing the work of this commission, which contained an analysis of all attempts to create a unified set of laws of the Russian Empire, undertaken since the time of Peter I. Currently, this kind of analysis is called retrospective, its main purpose in management is to identify changes in the process that is in the spotlight, in order to identify the prospects, resources and tools of managerial influence. The process that has been subjected to analysis is the activity of the state structures of the Russian Empire to systematize legislation. This analysis consists of several elements, which we will now describe.

1. The reasons for the beginning of work on the systematization of laws in force since the adoption of the Cathedral Code of 1649. This element of the analysis is poorly expressed: "At the beginning of the last century, Peter the Great, in the midst of military operations, turned his vigilant attention to State laws: having seen the shortcomings of them, contradictions and dissimilarities..." ^{[9, p. 162]}. The phrase "among military operations" was probably meant to emphasize the importance of this problem (for the sake of solving which Peter had to distract from the leadership of the troops) and, at the same time, point out a historical parallel, since in January of that year, in which the Report was presented, the Russian-Iranian war began. The reasons given are: a) "shortcomings" of the current norms; b) their "contradictions" (which can be interpreted in two ways: as contradictions contained in a particular law, and situations where one law contradicts another); c) "dissimilarities", which can be interpreted as differences in principles, which were the basis for the laws passed (at that time) over the past half century.

In more detail, the reasons for the need to draw up a new Code are spelled out in the Report in relation to the time of Catherine II. In this place, a direct quote is given from the Manifesto of December 14, 1766: "... the great insanity in court and punishment, and consequently in justice, is a lack in many cases of legalizations, in others a large number of them, issued at different times, as well as an imperfect distinction between permanent and temporary laws. And above all, after a long time and frequent changes, the mind in which the former civil laws were drawn up has now become completely unknown to many, while passionate discussions have often overshadowed the direct reason of many laws. Moreover, the difficulties were multiplied by the difference of the times and customs of that time, which were completely different from the current ones..." ^{[9, p. 163; 8, 1092]}.

2. Highlighting the stages of work on the systematization of legislation. This is a key element of any retrospective analysis, as it allows you to identify changes in the process under study. The Report highlights the stages of the reign of the monarchs, indicating individual periods within the stage, if such can be identified.

3. Brief description of the stages (and internal periods), including: a) the composition of the working body; b) its goal setting; c) organization of work; d) interim results.

The retrospective analysis presented in the Report was prepared in order to:

- to give an idea of what goals were set for the governing bodies involved in the systematization of legislation;

- identify the general principles and organizational forms of such work;

- to show how these principles and forms have changed at different stages of work.

The contents of the first (retrospective) part of the Report ^{[9, pp. 161-167]} are most conveniently presented in the table:

The initial materials for the retrospective part were normative acts (primarily Decrees of the current monarchs), as well as documents submitted to the Ministry of Justice by all previous commissions.

We can see that in the retrospective part of the Report, maximum attention was paid to two topics: a) the composition of the body entrusted with the task of systematizing legislation at a particular stage, and b) the organizational forms of this work. In the description of the composition of the body entrusted with the work of systematizing legislation, two principles are clearly visible, which are alternately used to form this body. The first principle is bureaucratic: the composition is formed by one of the governing bodies from among the officials. Peter I was guided by this principle throughout his reign, it was used by the Russian government during the reign of Anna Ioanovna. Bureaucratically, Paul I also used the principle of forming a Commission to draft laws. And it was this principle, together with the commission, that Alexander I inherited.

The second principle, representative– was first applied during the reign of Catherine I. In a truncated (to "gentry") form, it was reproduced in the reign of Peter II.

The two rulers of Russia, in different periods of work on the systematization of laws, changed the basic principle. At the beginning of Elizabeth Petrovna's reign, the bureaucratic principle was in effect, but then the Empress abandoned it in favor of a broad representation of the nobility (officers) and a smaller one – the merchants. And with Catherine II, the reverse type of evolution happened. She began with the maximum possible (in Russia of her time) implementation of the principle of popular representation by convening a Special commission. Then, there was no representation in the Zavadovsky commission. Accordingly, the addressee of the "Report", Emperor Alexander I, could not help but draw attention to the fact that no matter what principle was used, the work on systematization of legislation was not carried out. The conclusion was that it wasn't the composition, but something else.

With regard to the organization of work, much depended on which principle of the formation of the commission was in effect at one time or another, because if the work on systematization was entrusted to a bureaucratic body, then nothing but clerical work of officials could be expected. In those cases where representatives of the estates were involved in the work, their work in the commission was organized in two different ways. The first was that deputies (at the time of Catherine I) were introduced to what the bureaucratic body had prepared. And the second is to receive proposals from deputies and involve them directly in the work on the texts of the "regulations" (potentially the commission of Peter II and, mainly, the Laid Commission of Catherine II). A kind of intermediate options was the first Zavadovsky commission, where the role of "experts" was to be played by the heads of provinces.

But the authors of the Report were most concerned not with the involvement of representatives of "society" (that is, for that century, the estates), but with how the work on the systematization of laws was planned. The "Report" highlights the first case of drawing up a general work plan (under Elizabeth Petrovna) and describes in as much detail as possible the work of "private" commissions within the framework of the Established Commission. This, of course, is not accidental, because Rosenkampf and Lopukhin sought to build the work of the Commission at a new stage in such a way that from the very beginning they would have an idea of the general structure of all legislation.

As for the issue of goal–setting, the authors of the report constantly noted that it changed arbitrarily, from the goal of harmonizing laws to the goal of creating a new Code, and from that to improving individual elements of legislation.

The key conclusions from the presented retrospective analysis are presented in the next part of the Report. And the main one is as follows: "Comparing the various regulations issued regarding the correction of laws from the time of Peter the Great to the prosperous reign of Your Imperial Majesty, it must necessarily be admitted that they disagree with each other in some respects, and often overlap each other, so that finally the concept of the essential purpose and direct duties of the Commission is obscured." ^{[9, p. 167]}.

The content of the retrospective analysis and the conclusions from it should have prepared the royal addressee for the following conclusions:

1. The reformed legislative commission may not be based on the principles or organizational forms of any of the previous commissions.

2. The goals of this commission cannot be to correct the current legislation, nor "to compose one Code", nor to borrow laws "issued for other countries and peoples" ^{[9, p. 167]}.

3. The main purpose of the Commission should be to transform the existing compendium of heterogeneous laws into a single set of "immutable" or "general state laws" ^{[9, p. 169]}, which can be interpreted as the beginning of work on the development of the constitution, although this very concept is absent in the report.

Thus, we see that the results of the Commission's activities, expressed in the report to the Emperor, were the result of a systematic retrospective analysis, the source base of which had the necessary completeness, and the general principles of document analysis were applied consistently. In the previous era, retrospective analysis was rarely used in this area. The author of these lines is aware of only one case of its systemic application – by B.K. Minikh in his "Essay on the Administration of the Russian Empire." The retrospective analysis not only gave credibility to the Commission's conclusions; the methodology of its conduct determined these conclusions, as it should be when applying scientific approaches to assessing social phenomena.