Law in Medieval Russia

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Author: Ferdinand Feldbrugge

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Law in Medieval Russia

Law in Eastern Europe A series published in cooperation with the Institute of East European Law and Russian Studies of Leiden University, the Universities of Trento and Graz and the European Academy of Bozen/Bolzano

General Editor

William Simons

VOLUME 59

Law in Medieval Russia By

Ferdinand Feldbrugge

LEIDEN • BOSTON 2009

This book is printed on acid-free paper. Library of Congress Cataloging-in-Publication Data Feldbrugge, F. J. M. (Ferdinand Joseph Maria), 1933- Law in Medieval Russia / By Ferdinand Feldbrugge. p. cm. — (Law in Eastern Europe) Includes index. ISBN 978-90-04-16985-2 (hardback : alk. paper) 1. Law—Russia—History. I. Title. KLA122.F45 2009 349.47—dc22 2008039626

ISSN 0075-823X ISBN 978 90 04 16985 2 Copyright 2009 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing, IDC Publishers, Martinus Nijhoff Publishers and VSP. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. printed in the netherlands

Contents Foreword

xi

A Note on Sources 1. Primary Sources: Chronicles and Other Collections The Primary Chronicle The First Novgorod Chronicle Other Collections 2. Primary Sources: Individual Documents (Charters); Archives 3. Secondary Sources Translations Textbooks on Legal History General History Classics Genealogy

xv xv xvi xvii xviii xviii xx xxii xxiii xxiv xxv

List of Abbreviations

xxvi

Chapter 1: LAW’S BEGINNINGS AND EARLY LAW 1. The Question of Definition 2. The Indo-European Aspect Background Indo-Europeans? Indo-European Patriarchy Chieftaincy and Kingship The Professionalization of Law The Penalty Catalogue Collective Liability Some Preliminary Conclusions 3. Looking beyond the Indo-Europeans The Code of Hammurabi The Law of Bagrat Kuropalates The Great Statute of the Oirat Mongols of 1640 4. Law and State 5. The Origins of Legislation

1 2 5 5 7 9 12 12 14 16 18 19 19 21 22 24 28

Chapter 2: THE RUSSKAIA PRAVDA 1. Introduction 2. General Remarks 3. The Short Pravda 4. The Chronological Framework of the Short Pravda 5. The Short Pravda: Composition and Status

33 33 35 35 36 38

vi


6. The Expanded Pravda 7. Other Contemporary Sources The Treaties of 912 and 945 The Treaty of 1229 between Smolensk and Riga 8. The Contents of the Short Pravda: Wergeld and Composition 9. Procedure 10. The Origins of the Russkaia Pravda 11. The Sources of the Oldest Pravda 12. The “Russian Custom” (Zakon Russkii) 13. Other Contemporary Slavic Legislation 14. Germanic Contacts 15. What does the Oldest Pravda represent? Chapter 3: ROMAN LAW IN MEDIEVAL RUSSIA 1. Introduction to the Problem 2. How the Views Developed over Time 3. The Legislation Involved: Roman and Byzantine Law— The ‘Lenders’ Roman Law Secular Byzantine Law a. The Nomos Georgikos or Farmer’s Law b. Ecloga c. Basilika d. Epanagoge (Eisagoge) e. Procheiron f. Epitome Byzantine Canonical (Ecclesiastical) Law The Early Collections up to the Nomocanon XIV titulorum Subsequent Developments in Byzantine Canon Law Summary of Byzantine Canon Law 4. The Legislation Involved: Russian Law—The ‘Borrowers’ The Court Law for the People The Russian-Byzantine Treaties The Russian Law (Russkaia Pravda) The Church Statutes of the Princes 5. Roman/Byzantine Influences: Where and When 6. The Kormchaia as the Main Vehicle of Byzantine Legal Influence and Other Collections The Penetration of the Kormchaia into Medieval Russia The Merilo Pravednoe or ‘Just Measure’ The Knigi Zakonnye or ‘Law Books’

39 39 39 41 41 46 48 51 51 53 53 57 59 59 62 70 70 71 71 72 73 74 74 75 75 76 77 78 79 79 80 81 83 85 87 88 92 93

Contents

vii

7. Weighing the Evidence Roman Law Byzantine Law Nomos Georgikos Ecloga The Court Law for the People Procheiron Chapter on Witnesses Church Statutes Treaties with Byzantium 8. Later Developments 9. Conclusions

94 94 108 109 111 116 118 119 120 122 122 125

Chapter 4: LAND TENURE, THE DRUZHINA AND THE NATURE OF KIEVAN RUS’ 1. Land Tenure: The Legal Perspective 2. The Nature of Kievan Russia: Soviet Approaches 3. The Nature of Kievan Russia: Trade or Agriculture? 4. Interlude: Feudalism 5. The Nature of Kievan Russia: Continued 6. The Druzhina 7. Conclusion

129 130 132 134 136 139 140 145

Chapter 5: POPULAR ASSEMBLIES IN EARLY MEDIEVAL RUSSIA: THE VECHE IN LEGAL HISTORY 1. Sources 2. Five Centuries of Veche History 3. The Veche in Early Kievan Russia 4. The Kievan ‘Empire’ 5. Veche and Prince 6. Composition of the Veche 7. Veche Procedure 8. The Veche after 1240 9. The Situation in Novgorod and Pskov 10. Kievan Rus’ as a Period of Transition 11. The Veche and the Nature of the Kievan Polity 12. The Veche in a Comparative European Context 13. The Russian Veche and Legislation 14. Renewed Interest in the Veche

147 148 149 150 152 152 154 156 157 159 160 161 162 163 164

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Chapter 6: THE ELDER BROTHER IN RUSSIA 1. The House of Rurik 2. From Genealogical to Contractual Seniority 3. Muscovy Russia: Mestnichestvo 4. The Table of Ranks 5. Postscript: The ‘Elder Brother’ in Soviet Rhetoric

167 167 170 174 178 179

Chapter 7: THE TREATIES OF MEDIEVAL RUSSIA 1. Defining the Topic 2. The Earliest Times 3. Periodization and Sources 4. The Treaties between Princes Starshinstvo The Treaties and Testaments of the Princes of Moscow: Close Relatives Excursion concerning the Title of Grand Prince The Treaties of the Princes of Moscow: Distant Relatives The Treaties between Moscow and Lithuania 5. Princely Treaties not involving Moscow Smolensk Treaties Other Princely Treaties 6. The Treaties of the Russian Cities The Treaties of Novgorod the Great Novgorod-Tver’ Treaties Novgorod-Moscow Treaties Novgorod Treaties with Foreign Rulers Novgorod Treaties with German and Baltic Cities and Merchants Pskov Treaties 7. Iarlyks of Tatar Khans 8. Concluding Thoughts Appendix 1. Novgorod Treaties with Moscow and Tver’ Grand Princes with Foreign Rulers with German and Baltic Cities and Merchants 2. Pskov Treaties 3. Polotsk Treaties 4. Moscow Treaties with Other Russian Princes with Foreign Princes

181 181 183 186 188 189 189 192 195 196 197 197 198 200 200 202 204 205 206 210 211 214 220 220 220 222 222 224 224 224 224 229

Contents

5. Other Princely Treaties among themselves and with Foreign Princes 6. Iarlyks of Tatar Khans Chapter 8: HUMAN RIGHTS IN RUSSIAN LEGAL HISTORY 1. Introduction 2. The Universal Declaration of Human Rights of 1948 3. Equality 4. Taming the State: Dispersal of Power The Separation of Powers Due Process Separation of Church and State Christian Anthropology and the Freedom of Conscience Sharing Power: Original Democracy Sharing Power: The Feudal System Sharing Power: Urban Freedom Rationalism and Enlightenment 5. The Position in Russia 6. Church and State in Russia The First Centuries Church and State under the Mongols The Church in Muscovy The Special Status of Novgorod The Church in the Russian Empire 7. Popular Rule and Democracy in Russia 8. Feudalism 9. Urban Freedom 10. Due Process 11. Equality 12. Concluding Observations Chapter 9: THE SKRA OF NOVGOROD: LEGAL CONTACTS BETWEEN RUSSIA AND WESTERN EUROPE IN THE MIDDLE AGES 1. Introduction 2. Novgorod the Great 3. Novgorod’s System of Government 4. Novgorod’s Legal System 5. Novgorod’s Trade with the Hanseatic League 6. The German Court of St.Peter in Novgorod

ix

229 229 230 233 233 233 235 236 236 237 237 238 239 240 241 242 243 243 243 245 247 249 250 250 252 253 256 257 258

261 261 262 264 266 267 270

x


7. Adjudication of German-Russian Disputes 8. The Internal Organization of the Court of St.Peter 9. The Skra of Novgorod and its Different Versions 10. Sources and Contents of the Different Versions of the Skra 11. Concluding Remarks

271 274 278 281 290

Chapter 10: MEDIEVAL LAW IN TRANSCAUCASIA— ON THE PERIPHERY OF EUROPEAN LEGAL HISTORY 1. Introduction 2. The Literature 3. General Historical Background: Armenia 4. General Historical Background: Georgia 5. The Law of the Armenian Kingdoms 6. The Code of Mkhitar Gosh 7. The Code of Smbat Sparapet 8. The Legal History of Georgia 9. The Non-Georgian Parts of the Collection 10. The Law of Bagrat Kuropalates 11. The Canonical Laws 12. The Laws of Beka and Aghbuga 13. The Law of Giorgi V the Brilliant 14. The Order of the King’s Court 15. The Law of the Catholicos 16. The Law Code of Vakhtang VI 17. Dasturlamali 18. Conclusions

293 293 294 295 297 298 299 300 303 304 305 306 307 307 308 309 310 311 312

Index of Personal Names

315

Subject Index

325

Glossary of Russian and Foreign Terms

329

About the Author

335

Foreword Soviet law, and then Russian law, have been the central themes in my work for most of my professional life. But, from the start of my career, I have entertained a lively interest in legal history, especially in that particular form where the field is studied for its own sake and not as a handmaiden for legal practice. It has often been argued, particularly by legal historians, that legal history is useful because without it we cannot properly understand, interpret and apply present-day legal rules. This is a valid argument, but its weight should not be overrated. We would only need comparatively small sections of legal history, and then mostly from more recent times, and not very often, for this pragmatic purpose. In a legal curriculum, legal history may have a more important didactic purpose: if properly presented, it may acquaint the student with a legal system, a legal universe if you wish, which may be much easier to survey and comprehend than the vast and complex systems of today. Additionally, European legal history provides an easy link between the two main legal families of the modern world, the systems of codified law and the Anglo-American systems. Medieval legal history has its peculiar charm, because in it the lines between legal and general history become blurred. One of the reasons is that a large part of medieval sources consists of legal documents. The legal and the general historian do not approach this material with exactly the same aim; nevertheless, the problems they have to solve and the lessons they learn are often the same. In the end, as I believe, the desire to know and to understand, without ulterior motives, is what drives the most worthwhile scholarly work. These few thoughts may perhaps explain why for many years already I have engaged in the study of the law of medieval Russia and related topics. When opportunities arose to write about it, I have made use of these. This was nearly always in connection with collective efforts, such as Festschrifte in honour of a respected colleague, or conferences devoted to historical subjects. When I looked back at the results of these activities, I became more aware of the fact that these seemingly incidental studies were actually strongly interconnected. They were, however, scattered about in different publications, having appeared in different countries, and over a period of more than thirty years. For that reason, I decided to bring them together in a single volume. I am grateful to the General Editor of Law in Eastern Europe, Professor William B. Simons, for accepting my work for his series.

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The execution of this plan turned out to be less simple than it seemed in the beginning. First of all, everything had to be brought up-to-date by the insertion of new materials and the corresponding adjustment of my original texts. In a few cases, this resulted in very drastic revision, especially in respect of the older pieces. Then there was the aspect of duplication. When the papers were originally published, separately, certain basic information had to be included about such topics as the Russian-Byzantine treaties of the 10th century, the Russkaia Pravda, the princely succession system of Kievan Russia, the internal organization of Novgorod, etc. On this point, I have attempted to reduce redundancy and treat such subjects at what seemed to be the most appropriate place. To eliminate duplication altogether would have been counterproductive, because then the narrative of an individual chapter would have to be interrupted too often by references to other chapters. The information on sources which had been included in almost all the original papers has now been brought together in a preliminary “Note on Sources”; a “List of Abbreviations” has been appended to this Note. The first chapter “Law’s Beginnings and Early Law” constitutes an extensive reworking of a concluding chapter which I contributed to a volume which was published several years ago.1 The following chapter on “The Russkaia Pravda” is an adapted version of a paper I also contributed to this volume.2 The massive Chapter 3 (“Roman Law and Early Russian Law”) has not been published before. I had felt for a long time that it would be desirable to treat this subject more in depth. An additional advantage is that the chapter discusses the most important monuments of early Russian law. Chapter 4 (“Land Tenure, the Druzhina and the Nature of Kievan Rus’”) is based in part on a paper that was published in 1977;3 the problem raised in the latter paper was indeed fundamental for a proper understanding of early Russian law, but the conclusions reached at that time may have been somewhat premature. Anyway, the literature on this topic had grown substantially and this alone justified a very thorough reworking, as a result of which a rather different paper emerged. 1

2

3

“Law’s Beginnings. Some Concluding Observations”, F. Feldbrugge (ed.), The Law’s Beginnings, Leiden, 2003, 255-280.

“The Earliest Law of Russia and Its Sources”, F. Feldbrugge (ed.), The Law’s Beginnings, Leiden, 2003, 93-113. A different version of this paper (in Dutch) was delivered as my farewell lecture at the University of Leiden, Het oudste Russische recht. Gedachten naar aanleiding van de Russkaia Pravda, Leiden, 1998.

“The Law of Land Tenure in Kievan Russia”, W. Butler (ed.), Russian Law: Historical and Political Perspectives, Leiden, 1977, 1-28.

Foreword

xiii

The paper on the medieval Russian popular assembly, the veche (Chapter 5: “Popular Assemblies in Early Medieval Russia: The Veche in Legal History”), was reviewed more lightly, mainly to take into account new literature.4 In Chapter 6 (“The Elder Brother in Russia”) an older paper has been used,5 but in substantially amended form; among other things, a longish section on the composition of the highest echelons of the Soviet nomenklatura has been reworked drastically. In the Chapters 7 (“The Treaties of Medieval Russia”) and 8 (“Human Rights in Russian Legal History”), I have restricted myself mainly to editorial adjustments, both chapters being based on fairly recent original papers.6 The same applies to Chapter 9 (“The Skra of Novgorod: Legal Contacts Between Russia and Western Europe in the Middle Ages”); the original paper7 was written in 1981, and the few relevant publications which have appeared since have been taken into account. The last Chapter 10 (“Medieval Law in Transcaucasia. On the Periphery of European Legal History”) concerns a topic which both in content and in geographical terms is marginal to the central theme of the collection. Nevertheless, I decided to include it, because during the last two centuries Armenia and Georgia have been closely associated with Russia and Russian (Soviet) law.8 Certain parts of the paper do also connect with Chapter 1. The interconnection between the different papers is a point which I already made above. This was, of course, the reason why the problem of a considerable amount of duplication had to be addressed. The Russkaia Pravda as the main piece of legislation from the Kievan era is the central topic of Chapter 2, but is also prominent in the discussion of the influence 4

Based on a paper with the same title in M. Hofmann & H. Küpper (eds.), Kontinuität und Neuanfang [Brunner Festschrift], Baden-Baden, 2001, 165-179.

“The Elder Brother in Russia: Seniority in Russian Politico-Legal Discourse”, G. Brunner (ed.), Sowjetsystem und Ostrecht [Meissner Festschrift], Berlin, 1985, 211-225.

5

6

“The Treaties of Medieval Russia”, R. Clark, F. Feldbrugge & S. Pomorski (eds.), International and National Law in Russia and Eastern Europe [Ginsburgs Festschrift], Law in Eastern Europe, No.49, The Hague/Boston/London, 2001, 157-205; “Human Rights in Russian Legal History”, F. Feldbrugge & W. Simons (eds.), Human Rights in Russia and Eastern Europe [van den Berg Festschrift], Law in Eastern Europe, No.51, The Hague/London/Boston, 2002, 65-90.

A paper with an identical title was published in Hommage à–Hulde aan–Tribute to René Dekkers, Bruxelles, 1982, 519-533.

7

8

Originally published under the same title in A. Trunk (ed.), Russland im Kontext der internationalen Entwicklung [Boguslavskii Festschrift], Berlin, 2004, 765-784.

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of Byzantine law (Chapter 4) and in the question of land tenure (Chapter 4). The Novgorod theme connects the chapters on the Skra (Ch.9), on the treaties (Ch.7), on the veche (Ch.6) and, to a lesser extent, on human rights (Ch.8). Princely succession, the main topic of Ch.6 (on the “Elder Brother”), is also of great importance in Ch.4 (about the druzhina and the nature of Kievan Rus’) and Ch.7 (treaties); it also occurs in other chapters. The so-called Normanist problem, concerning the origins of the Rurikid dynasty and the Kievan state, turns up in most chapters and the same can be said about the impact of Mongol-Tatar rule. The opening chapter on “Law’s Beginnings” offers a comprehensive and more theoretical understanding of the phenomenon of early law, which constitutes the conceptual background of the other papers. Two defects should be mentioned too. Although I believe that the collection of these papers represents a reasonably balanced survey of the rich tapestry of the law of medieval Russia, it coverage concerns predominantly what is known as external legal history. There is much less, and at that more incidentally, about the actual contents of medieval Russian law; in our modern terminology: what was the family law, the commercial law, the criminal law of Kievan Russia like? I intend to return to that at a later time. One observation that can at least be made is that early law is very much a question of external history, of identifying the sources; that is its limitation, but also part of its attraction for the scholar. The second reservation concerns my own sources. A non-Russian scholar who has to rely mainly on his own library and that of his university, respectable as they may be, is in an unfavourable position in comparison to a Russian colleague who has large and ancient collections at his disposal in Moscow or St.Petersburg. A few small technical and editorial points to conclude. I have regularly referred, for practical reasons, to the Kievan grand prince who introduced Christianity into Russia as “St.Vladimir”, as is commonly done in Russian literature, whatever doubts one may have about the prince’s saintliness.9 In bibliographical references, editors of collective works (where mentioned) have been treated as authors of the works concerned (with the addition of “(ed.)” after their names); if the work is dedicated (as a Festschrift or memorial volume) to a particular person, the latter’s name has been added in square brackets. Place names in bibliographical references have been given as they were in the books concerned (“Moskva” instead of “Moscow”, “S.Peterburg” instead of “Saint Petersburg”)). The use of the ethnonyms “Mongol” and “Tatar” is occasionally, where suitable, explained in footnotes; generally speaking, they have been used as synonyms. 9

See A.W. Poppe, “Kogda i kak kniaz’ Vladimir byl priznan sviatym”, A.N. Sakharov (ed.), Ot Drevnei Rusi k novoi Rossii [Shchapov Festschrift], Moskva, 2005, 44-61.

A Note on Sources A lawyer needs sources to tell him what the law ‘is’. (I use the quotation marks in order to introduce a caveat. The way law ‘is’ is different from the way a language, the human psyche, or the material reality ‘is’; more on this in the next chapter.) In modern states, identification of the sources is unproblematic, at least in principle. The law is found in statutes and subordinate regulations, and beyond that also in the decisions of courts and other authorized bodies who articulate the actual meaning of these statutes and regulations, if this meaning is not immediately clear. In ancient and medieval law, the situation is different in at least two respects. There is much less clarity about what the sources are and once this problem is solved the sources turn out to be scarce. A regular procedure for creating law, a standard legislative process, was usually absent. Even where common sense would suggest the recognition of certain texts as legislation, there were no official gazettes, and our knowledge of these texts is based on often diverging manuscript traditions. These problems also occur in the history of medieval Russian law and in order to avoid the need to repeat the same basic information on sources in each of the following chapters this introductory chapter will attempt to survey the most important primary and secondary sources of the law of medieval Russia.

1. Primary Sources: Chronicles and Other Collections Under primary sources, I understand those documents on which, ultimately, our knowledge of medieval Russian law rests. To take the most important monument of early Russian law as an example: a student of the Russkaia Pravda may derive much knowledge and insight from the vast literature that is available on this topic in Russian and Western languages. This literature itself is based on text editions which have been published during the last two centuries. But, in the end, the authors of these text editions, or at least some of them, must have used a manuscript text. A vast number of manuscript versions of the Russkaia Pravda have survived and very considerable differences among them can be observed. This gives rise to the additional problem of trying to establish the most likely version of the original text. In the case of another very important document, the Court Charter of Pskov, only a single manuscript copy has survived and this could therefore certainly be regarded as the primary source. The body of documents constituting the primary sources for the study of medieval Russian law can generally be divided into two main

xvi


categories, book-like volumes and separate (single) documents or charters (gramoty). Within the first category, the chronicles form the most numerous group. Chronicles were usually written by monks (initially the only literate persons), often at the behest of secular rulers. They were then copied and recopied and could undergo all kinds of changes in the process. Precise historical documentation was obviously not the exclusive or even dominant purpose of a chronicler. All these factors have to be taken into account when evaluating the reliability of a chronicle. Still, the chronicles are an invaluable source because our knowledge and understanding of medieval Russian society depends largely on them. More specifically, they are occasionally the direct source for certain legal texts. The 10th century treaties between Russia and Byzantium are known only from the Primary Chronicle. Some of the original texts of the Russkaia Pravda have been included in copies of the First Novgorod Chronicle. To realize the systematic publication of chronicle texts the Archeographical Commission was founded in 1834.1 The first volume of the “Full Collection of Russian Chronicles” (Polnoe Sobranie Russkikh Letopisei – PSRL) appeared in 1841. The Archeographical Commission and its publications survive until the present day. For chronicle texts, the PSRL is considered the basic publication. The literature on Russian chronicles is rich, as many leading medievalists and philologists have concerned themselves with them. The foundation for all more recent work on the chronicles has been laid by A. A. Shakhmatov (1864-1920). The Primary Chronicle Of the numerous chronicles, pride of place belongs to the Primary Chronicle. It is the oldest of them all and itself the source for many later chronicles. The oldest and most important redactions of the Primary Chronicle are represented by the Laurentian and Hypatian manuscripts.2 The Primary Chronicle (Nachal’naia letopis’) also used to be known as the Nestor Chronicle, being erroneously ascribed to a monk Nestor. 1

2

There had been several private publications of chronicle texts previously.

The Laurentian manuscript derives it name from the monk Lavrentii who made the copy in Suzdal’ in 1377, according to the colophon of the copy. The Hypatian manuscript was found in the Hypatian monastery in Kostroma and dates from the middle of the 15th century. The Laurentian manuscript was published as the first part of Vol.1 of the PSRL in 1846 in St.Petersburg, with a second revised edition in 1926 in Leningrad. The Hypatian manuscript constituted Vol.2 of the PSRL, published also in St.Petersburg, in 1843, with a second edition in 1908 and a third edition in 1923 in Leningrad.

A Note on Sources

xvii

Another frequently employed title is the “Tale of Bygone Years” (Povest’ vremennykh let), taken from the opening words of the text.3 The Primary Chronicle takes us up to the year 1116. In its beginning, it mentions Noah and the Flood, but then moves quickly to an account of how the Slavs settled in Eastern Europe. After reviewing the more or less legendary events concerning the early Slavic tribes in Russia, it steps onto firm historical ground with the year 852, when according to Greek sources, the Russians attacked Constantinople. The real narrative starts in 862, when the arrival of Rurik, the ancestor of the future ruling dynasty is reported. There is much information on the still pagan successors of Rurik and how they achieved a dominant position as rulers in Kiev. The main body of the Chronicle covers the ‘classical’ period of Kievan Rus’: baptism under Vladimir in 988, the rule of his son Iaroslav the Wise as the apogee of Kievan Rus’, and the gradual fragmentation of the Kievan realm under his successors, with a temporary revival of the old Kievan glory under Vladimir Monomakh (1113-1125). Most commentators, following Shakhmatov, discern various chronological layers in the Primary Chronicle. This makes it impossible to speak unambiguously about the time it was written. The final text is supposed to have emerged in or shortly after 1116. The First Novgorod Chronicle Of the different redactions of the Novgorod Chronicle, the First is the only one that is of eminent importance for the early history of Russian law, and particularly where Novgorod itself is concerned. Of the First Novgorod Chronicle two versions exist, the Older (Starshii izvod) and the Younger (Mladshii izvod). The Older Version of the First Novgorod Chronicle is available in one copy only, the Synodal manuscript.4 The actual text of the Synodal manuscript ends in the year 1333 and was probably written about that time. New entries were added later on, which took 3

4

English translation of the Laurentian text by S.H. Cross and O.P. Sherbowitz-Wetzor, The Russian Primary Chronicle–Laurentian text, Cambridge, MA, 1953. Novgorodskaia letopis’ po Sinodal’nomu Kharateinomu spisku, 2 vols., S.Peterburg, 1875-1888. Also: M.N. Tikhomirov (ed.), Novgorodskaia kharateinaia letopis’, Moskva, 1964. The Older and Younger Versions were published together by A.N. Nasonov, Novgorodskaia pervaia letopis’ starshego i mladshego izvodov, Leningrad, 1950. English translation of the Synodal manuscript by R. Mitchell and N. Forbes, The Chronicle of Novgorod, London, 1914 (reprint 1970); this edition includes introductory texts by the translators, and by A.A. Shakhmatov and W. Hanak. German translation by J. Dietze, Die Erste Novgoroder Chronik nach ihrer ältesten Redaktion (Synodalhandschrift) 1016-1333/1352, München, 1971; this edition also includes the Russian text and a complete facsimile of the Synodal manuscript.

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the narrative up to the year 1472 when Novgorod lost the last remnants of its independence. Other Collections Along with chronicles, other manuscript collections containing legal materials have survived. They will be discussed at greater length in the chapter on “Roman Law in Medieval Russia”. Of these the kormchie or ‘guide-books’ are the most important and numerous. They are the Russian version of the Byzantine Nomocanon: collections of various content, containing materials which were needed by churchmen. Some of the materials are of a theological nature, but others concern canon law and also secular law. Many copies of the Russkaia Pravda have been found as additions to kormchie. Another important collection was the ‘Just Measure’ of Merilo Pravednoe, also containing ecclesiastical and secular legal materials. A third collection worth mentioning is the ‘Law Books’ (Knigi zakonnye), containing only materials of Byzantine origin.

2. Primary Sources: Individual Documents (Charters); Archives Along with the more modest number of manuscript ‘books’, such as chronicles and kormchie, a vast number of other shorter documents have survived from the Russian middle ages. It is in the nature of things that such documents usually concern legally relevant matters. Because such documents embodied, as it were, a particular right or claim, they have been preserved with more than the usual care. Their preservation depended before all on a suitable place for permanent safe-keeping. Monasteries were outstanding in this respect. They were less involved in dynastic strife and armed conflict; their peaceful existence often continued for many centuries. Documentary collections belonging to secular authorities, such as governments or judicial bodies, would eventually end up with the ultimately remaining power, the rulers of Muscovy and later on the Russian empire.5 A small number of rich and powerful noble families maintained their own archives. After the first publication of medieval Russian charters in the last part of the 18th century,6 an official publication of state charters was begun in 5

6

The basic study on these archives is L.V. Cherepnin, Russkie feodal’nye arkhivy XIVXV vekov, Part I, Moskva/Leningrad, 1948, Part II, Moskva, 1951. Drevniaia Rossiiskaia Vivliofika ili sobranie raznykh drevnikh sochinenii, S.Peterburg, 1773-1775.

A Note on Sources

xix

1813.7 The Archeographical Commission, mentioned above, was responsible for a whole range of serial publications containing documents collected from all over the empire.8 After the October Revolution, the publication of important archival material continued. Several collections were devoted to the documents connected with some of the great monasteries, who were among the wealthiest landwoners in the past.9 The Central State Archive for Ancient Documents (TsGADA) became the repository for many formerly private archives. In other collections, a thematic rather than an archival criterion was decisive. S.N. Valk edited a collection of charters concerning the history of Novgorod and Pskov, covering the period of their independence from Moscow, i.e. until 1478 for Novgorod and until 1510 for Pskov.10 A year later L.V. Cherepnin published a collection of testaments and treaties of the grand princes and provincial princes.11 Cherepnin was also the principal editor of the three-volume “Acts of feudal land ownership and management”, covering especially the archival materials of major ecclesiastical land owners.12

7

Sobranie Gosudarstvennykh Gramot i Dogovorov, khraniashchikhsia v Gosudarstvennoi Kollegii inostrannykh del, Moskva, 1813 (Vol.1), 1819 (Vol.2), 1820 (Vol.3), 1828 (Vol.4), 1894 (Vol.5).

8

Akty iuridicheskie, ili sobranie form starinnogo deloproizvodstva, S.Peterburg, 1838; Akty istoricheskie, sobrannye i izdannye Arkheograficheskoiu komissieiu, 5 vols., S.Peterburg, 1841-1842, and twelve volumes of supplements, Dopolneniia k Aktam istoricheskim, sobrannym i izdannym Arkheograficheskoiu Komissieiu, S. Peterburg, 1846-1872; Akty, otnosiashchiesia do istorii Zapadnoi Rossii, 5 vols., S.Peterburg, 1846-1853; Akty, otnosiashchiesia do istorii Iuzhnoi i Zapadnoi Rossii, 15 vols., S.Peterburg, 18631892.

9

10

S.B. Veselovskii & A.I. Iakovlev (eds.), Pamiatniki sotsialno-ekonomicheskoi istorii moskovskogo gosudarstva XIV-XVII vv., Moskva, 1929 (the Troitse-Sergiev monastery); N.S. Chaev (ed.), Severnye gramoty, Moskva, 1929 (the Solovetskii monastery); A.A. Zimin & M.N. Tikhomirov (eds.), Kniga kliuchei, Moskva, 1949 (the monastery of Joseph of Volokolamsk).

S.N. Valk (ed.), Gramoty Velikogo Novgoroda i Pskova, Moskva/Leningrad, 1949.

L.V. Cherepnin (ed.), Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei XIVXVI vv., Moskva/Leningrad, 1950.

11

12

L.V. Cherepnin (ed.), Akty feodal’nogo zemlevladeniia i khoziaistva, Vol.1, Moskva, 1951 (documents from the Moscow metropolitanate), Vol.2, Moskva, 1956 (monastery of Joseph of Volokolamsk), Vol.3, Moskva, 1961 (Moscow metropolitanate and monastery of the Annunciation in Nizhnii-Novgorod).

xx


The publication plan of the core fund of medieval Russian documents was completed by the Institute of History with another three-volume work, specifically devoted to the Russian North-East.13 One category that should be specially mentioned are the birchbark documents, mostly from Novgorod, but also from other places. Considerable numbers of such documents have been preserved on account of the special soil conditions, and they go back much further than parchment or paper documents. While the latter were mostly drawn up and kept safe in order to record some legally relevant matter, the birchbark documents, having survived by chance, had all kinds of other purposes. But, occasionally, they offer an insight into “the law in action” in a period where all other written records fail.14

3. Secondary Sources In the first echelon of secondary legal sources, one could place collections of texts, taken from the primary sources mentioned above. Two collections are of outstanding importance. The “Monuments of Russian Law” (Pamiatniki russkogo prava) were started in 1952 under the editorship of S.V. Iushkov. After his death in 1952, the series continued under the editorship of L.V. Cherepnin and then K.A. Sofronenko.15 The last of the eight-volume series to appear was Volume 7 in 1963. The PRP bring together the most important Russian laws and government decrees, starting with the Russo-Byzantine treaties of the 10th century, up to the year 1724; the 13

14

Cf. L.V. Cherepnin, Novgorodskie berestianye gramoty kak istoricheskii istochnik, Moskva, 1969.

Pamiatniki russkogo prava, general editor S.V. Iushkov (Vols. 1 and 2), L.V. Cherepnin (Vols.3-5, 7), K.A. Sofronenko (Vols.4 and 8): Vol.1, Pamiatniki prava Kievskogo gosudarstva, A.A. Zimin (comp.), Moskva, 1952 Vol.2, Pamiatniki prava feodal’no-razdroblennoi Rusi, A.A. Zimin (comp.), Moskva, 1953 Vol.3, Pamiatniki prava perioda obrazovaniia Russkogo tsentralizovannogo gosudarstva, Moskva, 1955 Vol.4, Pamiatniki prava perioda ukrepleniia Russkogo tsentralizovannogo gosudarstva, Moskva, 1956 Vol.5, Pamiatniki prava perioda soslovno-predstavitel’noi monarkhii, Moskva, 1959 Vol.6, Sobornoe Ulozhenie Alekseia Mikhailovicha 1649 goda, Moskva, 1957 Vol.7, Pamiatniki prava perioda sozdaniia absoliutnoi monarkhii, Moskva, 1963 Vol.8, Zakonodatel’nye akty Petra I, Moskva, 1961.

15

Akty sotsial’no-ekonomicheskoi istorii Severo-Vostochnoi Rusi, Vol.1 (B.D. Grekov, ed.), Moskva, 1952; Vol.2 (L.V. Cherepnin, ed.), Moskva, 1958; Vol.3 (L.V. Cherepnin, ed.), Moskva, 1964.

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eighth volume is devoted to the legislation of Peter the Great. The series has been edited most carefully by the leading scholars for the different periods. For the older texts, based on manuscripts, the important variant readings have been given. The most difficult texts are accompanied by a modern Russian translation. All texts have been provided with a commentary. Twenty years later, a new and similar series was started: “Russian Legislation from the 10th to the 20th century” (Rossiiskoe zakonodatel’stvo X-XX vekov).16 The first four volumes of this series cover the same period as the entire PRP; Vols.5-9 cover the period of 1726-1917. For the Middle Ages, the PRP is therefore still the most useful source, although the RZ series does occasionally offer information not to be found in the PRP. For the most important legislative document of early medieval Russia, the Russkaia Pravda, the Academy of Sciences publication edited by B.D. Grekov is still the fundamental work.17 The first volume contains the texts of the oldest and most important copies of the different manuscript families, with the variant readings of other copies. In the second volume, the vast literature from before 1947 has been collected and is quoted extensively, in the shape of a commentary to the individual provisions of the RP. The third volume contains full facsimile copies of the two leading manuscripts of the Short Pravda and the thirteen leading manuscripts of the Expanded Pravda.

16

Rossiiskoe zakonodatel’stvo X-XX vekov, O.I. Chistiakov (gen. ed.): Vol.1, Zakonodatel’stvo Drevnei Rusi, V.L. Ianin (ed.), Moskva, 1984 Vol.2, Zakonodatel’stvo perioda obrazovaniia i ukrepleniia Russkogo tsentralizovannogo gosudarstva, A.D. Gorskii (ed.), Moskva, 1985 Vol.3, Akty Zemskikh soborov, A.G. Man’kov (ed.), Moskva, 1985 Vol.4, Zakonodatel’stvo perioda stanovleniia absoliutizma, A.G. Man’kov (ed.), Moskva, 1986 Vol.5, Zakonodatel’stvo perioda rastsveta absoliutizma, E.I. Indova (ed.), Moskva, 1987 Vol.6, Zakonodatel’stvo pervoi poloviny XIX veka, O.I. Chistiakov (ed.), Moskva, 1988 Vol.7, Dokumenty krest’ianskoi reformy, O.I. Chistiakov (ed.), Moskva, 1989 Vol.8, Sudebnaia reforma, B.V. Vilenskii (ed.), Moskva, 1991 Vol.9, Zakonodatel’stvo epokhi burzhuazno-demokraticheskikh revoliutsii, O.I. Chistiakov (ed.), Moskva, 1994.

B.D. Grekov (ed.), Pravda Russkaia; Vol.1, Teksty, Moskva/Leningrad, 1940; Vol.2, Kommentarii, Moskva/Leningrad, 1947; Vol.3, Faksimil’noe vosproizvedenie tekstov, Moskva, 1963.

17

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Translations The fullest and most recent collection of translations of medieval Russian laws into English is the first series (”Medieval Russia”) of the ambitious collection “The Laws of Russia”, published under the general editorship of C. Schlacks, Jr. The series on medieval law (R. Hellie served as general editor) consists of three volumes, “The Laws of Rus’–Tenth to Fifteenth Centuries” (Salt Lake City, 1992), translated and edited by D.H. Kaiser; a volume containing the Law Codes (Sudebniki) of 1497, 1550, 1589, and 1606/1607;18 and “The Muscovite Law Code (Ulozhenie) of 1649” (Irvine, California, 1988), translated and edited by R. Hellie. For the purposes of this book, the first volume by Kaiser is the most relevant. Like the other volumes of the series, it offers a bilingual text, with the Russian text on the left-hand page and the English translation on the other. The selection has been very generous, offering not only the basic texts of the RP and the Novgorod and Pskov Charters, but also the treaties with Byzantium, eight church charters of various princes, four treaties between Novgorod and the prince of Tver’, the “Metropolitan’s Justice” and quite a few other sources. All this, plus more than fifty pages of introduction, makes this volume a most useful addition to the literature on medieval Russian law. Before this publication, the much smaller volume of translations and comments by G. Vernadsky (“Medieval Russian Laws”, New York, 1947) was the best-known source for English translations of medieval Russian laws. Vernadsky was undoubtedly one of the few outstanding Western scholars in this field, but his views were occasionally controversial and this did also affect the quality of his translations. Moreover, his collection included only the RP and the charters of Dvina Land and the cities of Novgorod and Pskov. In French, M. Szeftel and A. Eck published a collection of translations (with comments) in 1963, which included the RP, the Charter of Pskov, and a number of princely church statutes.19 Although German scholars had been more involved than other scholars from the Western world in the study of Russian legal history, there is no recent German translation of the most important relevant texts, with 18

19

At the moment of writing this chapter, the second volume has not yet appeared. Also, the third part (the Ulozhenie of 1649) is to consist of two parts, of which apparently only the first part (text and translation) has been published. M. Szeftel & A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963.

A Note on Sources

xxiii

the exception of Baranowski’s translation in his monumental study on the RP.20 L.K. Goetz’ translation of the RP is now a century old.21 Textbooks on Legal History During the Soviet era, medieval legal history became a branch of general medievistics. Most of the scholars in that field wrote about medieval Russian law, especially because in early medieval studies legal documents occupy an important place. But only S.V. Iushkov could be regarded as a legal historian first of all; some of his major works are about the only general works on early Russian legal history from the Soviet period.22 For the more traditional and comprehensive surveys of legal history, the pre-revolutionary handbooks are still of great value. The leading authors were V.I. Sergeevich, M.F. Vladimirskii-Budanov and M.A. D’iakonov. The “Lectures and Studies on the Ancient History of Russian Law” by Sergeevich cover the Kievan period fairly extensively and the Muscovy period more briefly under the traditional headings of “sources”, “state law”, “criminal law”, “civil law” and “court proceedings”; a lengthy appendix is devoted to the 10th century treaties with Byzantium.23 Another threevolume work by the same author makes greater use of original sources and is structured around major themes (territory, population, armed forces, veche, prince, princely councillors, land use, taxation).24 Vladimirskii-Budanov was the author of the most popular textbook on Russian legal history before the October Revolution; it was first published in 1886 in Kiev and the last and seventh edition appeared in 1915.25 It is organized along the same lines as Sergeevich’s “Lectures” (state law, criminal law, civil law, procedure) and covers the entire period up to the 20

G. Baranowski, Die Russkaja Pravda–ein mittelalterliches Rechtsdenkmal, Frankfurt a/M., 2005.

In his major work: L.K. Goetz, Das Russische Recht, Vols.1-4, Stuttgart, 1910-1914.

S.V. Iushkov, Istoriia gosudarstva i prava SSSR, Part 1, Moskva (3rd ed.), 1950; this part treats the entire legal history of all the territories of the USSR up to 1917; id., Obshchestvenno-politicheskii stroi i pravo kievskogo gosudarstva, Moskva, 1949.

V.I. Sergeevich, Lektsii i izsledovaniia po drevnei istorii russkago prava, S.Peterburg, 1883; I have used the 4th ed., S.Peterburg, 1910.

21

22

23

24

V.I. Sergeevich, Drevnosti russkago prava, S.Peterburg, Part 1, 1890; Part 2, 1890; Part 3, 1903; I have used the 3rd ed. of Parts 1 and 2 of 1909 and 1908.

M.F. Vladimirskii-Budanov, Obzor istorii russkago prava, Kiev, 1886, (7th ed.)1915. I have used the modern edition (Obzor istorii russkogo prava), published in Rostov-naDonu, 1995, based on the 7th ed.

25

xxiv


19th century Svod Zakonov, although the emphasis is on the Kievan and Muscovy periods. The work by D’iakonov, as the title suggests, is devoted in principle to the organization of the state, but in discussing the legal status of the various sections of the population numerous other topics are treated.26 Therefore, although the work appears to exclude civil and criminal law, its overall coverage is not too different from that of the textbooks of the other two authors. In the post-Soviet era, I.A. Isaev published a university textbook on Russian legal history.27 This volume also covers the Soviet era. Inevitably, the treatment of most subjects is rather perfunctory and not based on an in-depth analysis of the sources or a comparative evaluation of the most notable viewpoints. In Western languages, there is L. Schultz’ concise overview of Russian legal history,28 which also includes the Soviet period, and much more recently, H. Küpper’s introduction to the legal history of Eastern Europe, which devotes some 140 pages to the legal history of Russia before 1917.29 Both works are in German. General History Classics The Russian literature (pre-Soviet, Soviet and post-Soviet) on the Russian Middle Ages is very rich and we shall only refer to a few of the patriarchs here. V.N. Tatishchev (1686-1750), scion of one of the Rurikid families and highly gifted in many fields, could be called the founder of Russian historiography. His eight-volume “Russian History” has been republished many times.30 In some respects, the value of Tatishchev’s work is unique, because some of the sources used by him have subsequently been lost. It 26

M.A. D’iakonov, Ocherki obshchestvennago i gosudarstvennago stroia Drevnei Rusi, S.Peterburg (2nd ed.), 1908. The first edition appeared in a very small number of copies and is very rare.

I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva, 1998, (3rd ed.) 2006.

L. Schultz, Russische Rechtsgeschichte von den Anfängen bis zur Gegenwart einschliesslich des Rechts der Sowjetunion, Lahr, 1951.

27

28

29

H. Küpper, Einführung in die Rechtsgeschichte Osteuropas, Frankfurt a/M., 2005.

V.N. Tatishchev, Istoriia rossiiskaia, Moskva, 1964 (scholarly edition prepared by a team of leading historians). More accessible perhaps is a modern edition in three volumes, published in Moscow in 2003.

30

A Note on Sources

xxv

covers the period up to the death of tsar Aleksei Fedorovich, Peter the Great’s father, in 1677. The next great work is N.M. Karamzin’s “History of the Russian State”, published first in 1811 in twelve parts. The final (fourth) edition is provided with a special volume with indices by P. Stroev.31 It leads up to 1612, the beginning of the Romanov dynasty after the Time of Troubles. V.O. Kliuchevskii (1841-1911), one of the most prominent Russian historians from the end of the pre-revolutionary era, collected his university lectures on Russian history in a five-volume work Kurs russkoi istorii; this was first published during the years 1904-1910, and republished many times afterwards.32 It takes the story up to the land reforms of Alexander II in the 1860’s. Genealogy The fragmentation of the Rurikid house and the resulting abundance of princes occasionally require a guide in the genealogical labyrinth. For many years, the standard texts were two companion volumes by N. de Baumgarten, published in the series of the Pontifical Institute of Oriental Studies in Rome.33 In 1988, a posthumously published work of A.A. Zimin offered detailed information on a number of Rurikid branches which had been absorbed into the boyar class in the era of the Muscovy grand princes, as well as on a number of other boyar families.34 The earliest genealogy of the Rurikids, concerning especially the sensitive subject of their Germanic connections, is the subject of a more recent study by E.V. Pchelov.35

31

32

N.M. Karamzin, Istoriia gosudarstva rossiiskago, S.Peterburg (4th ed.), 1842-1844. This is the edition which has been reprinted many times, also during recent times.

I have used the edition in the Sochineniia, 8 vols., Moskva, 1956-1958; the Kurs takes up vols.1-5 of these.

N. de Baumgarten, Généalogies et mariages occidentaux des Rurikides russes du Xe au XIIIe siècle, Orientalia Christiana, Vol.IX-1, No.35, Roma, 1925, id., Généalogies des branches régnantes des Rurikides du XIIIe au XVI siècle, Orientalia Christiana, Vol. XXXV-1, No.94, Roma, 1934.

33

34 35

A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossi vo vtoroi polovine XV–pervoi treti XVI v., Moskva, 1988.

E.V. Pchelov, Genealogiia drevnerusskikh kniazei IX–nachala XI v., Moskva, 2001.

List of Abbreviations DDG

Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei XIV-XVI vv. (S.V. Bakhrushin, ed., L.V. Cherepnin, man. ed.), Moskva/Leningrad, 1950

Cherepnin, Arkhivy

L.V. Cherepnin, Russkie feodal’nye arkhivy XIV-XV vekov, Part I, Moskva/Leningrad, 1948, Part II, Moskva, 1951

D’iakonov

M. D’iakonov, Ocherki obshchestvennago i gosudarstvennago stroia Drevnei Rusi, S.Peterburg (2nd ed.), 1908

GVNP

Gramoty Velikogo Novgoroda i Pskova (S.N. Valk, ed.), Moskva/Leningrad, 1949

Iushkov, Ocherki

S.V. Iushkov, Ocherki po istorii feodalizma v Kievskoi Rusi, Moskva/Leningrad, 1939

Iushkov, Stroi

S.V. Iushkov, Obshchestvenno-politicheskii stroi Kievskogo gosudarstva, Moskva, 1949

Kaiser, Laws

D.H. Kaiser (ed. & transl.), The Laws of Rus’–Tenth to Fifteenth Centuries, Salt Lake City, 1992

Karamzin

N.M. Karamzin, Istoriia Gosudarstva Rossiiskago, 4 vols., S.Peterburg, 1842-1844 (reprint Moscow 5th ed., 1988)

Kliuchevskii, Kurs

V.O. Kliuchevskii, Kurs russkoi istorii, S.Peterburg, 1904-1910; vols.1-5 of Sochineniia, 8 vols., Moskva, 1956

Novg. Chr.

First Novgorod Chronicle (for full reference, see note 4)

Presniakov, Kn. pr.

A.E. Presniakov, “Kniazhoe pravo v drevnei Rusi. Ocherki po istorii X-XII stoletii”. Zapiski istoriko-filologicheskago fakul’teta imp. S.Peterburgskago universiteta, Part 90, S.Peterburg, 1909

Presniakov, Lektsii

A.E. Presniakov, Lektsii po russkoi istorii, Part I, Moskva, 1938, Part II, Moskva, 1939

Prim. Chr.

Primary Chronicle (also Nestor Chronicle, or Tale of Bygone Years) (for full reference, see note 2)

PRP

Pamiatniki russkogo prava (for full reference, see note 15)

PSRL

Polnoe Sobranie Russkikh Letopisei

RP

Russkaia Pravda

RZ

Rossiiskoe zakonodatel’stvo X-XX vekov (for full reference, see note 16)

Sergeevich, Drevnosti V.I. Sergeevich, Drevnosti russkago prava, I, S.Peterburg (3rd ed.), 1909; II, S.Peterburg (3rd ed.), 1908; III, S.Peterburg, 1903 Sergeevich, Lektsii

V.I. Sergeevich, Lektsii i izsledovaniia po drevnei istorii russkago prava, S.Peterburg (4th ed.), 1910

SGGD

Sobranie Gosudarstvennykh Gramot i Dogovorov (for full reference, see note 7)

Vlad.-Bud., Obzor

M.F. Vladimirskii-Budanov, Obzor istorii russkogo prava, Rostov-na-Donu, 1995 (republication of 7th ed., Kiev, 1915)

Chapter 1 Law’s Beginnings and Early Law At the beginning of the previous chapter (on sources), the point was made that the study of medieval law, and especially its earliest phases, encounters specific problems which are absent or at least less significant in later phases. The most comprehensive of these problems is what might be encapsulated in a simple question: When does law begin? The question of course implies that a more or less generally agreed upon concept is available of what we understand by “law”, a definition of law, in other words. But it also implies that—provided we can agree on such a definition—we accept the idea that law did begin at a certain moment and that it had not been present before, as long as mankind had walked the planet. I consider this idea as self-evident. When small bands of prehistoric hunters-gatherers roamed the virgin earth, they had language, were connected by a network of social relations, and individuals had different minds and psyches. For the students of historical linguistics, sociology, anthropology and psychology therefore the objects of their studies had existed as long as the human race itself. It would make little sense to say the same about law. Certain types of human social behaviour, in the family or in similar small groups, are indeed reminiscent of certain legal institutions. Persons who are in a position of authority, for instance, may engage in setting rules for others. The phenomenon that previous behaviour, or precedent, may guide future action is even observable in the animal kingdom. But to regard such things as law in the commonly accepted sense would not serve a useful purpose. Law therefore is something that came into being at a specific moment in history, or rather at specific and different moments in the histories of specific human groups. In this introductory chapter, I intend to investigate this process of the birth of law in a more general and comparative framework, drawing largely on the work of specialists in other fields.1 The origin of law is a problem that is usually approached from a more philosophical or theoretical point of view. The great exception is Maine’s famous work “Ancient Law”; in 1

As explained in the Foreword, the original version of this chapter constituted the concluding chapter in the publication of a collective study of numerous aspects of ‘early law’: F.J.M. Feldbrugge (ed.), The Law’s Beginnings, Leiden/Boston, 2003 (hereafter quoted as Feldbrugge, Law’s Beginnings). The contributors to this volume were linguists, anthropologists, legal historians and legal philosophers, and the contributions ranged from more theoretical studies to investigations of the oldest laws of a number of Indo-European and non-Indo-European peoples.

2


his Introduction to this work, J.H. Morgan, contrasting Maine’s method, revolutionary at the time, with the efforts of jurists, such as Bentham and Austin, and political philosophers, such as Hobbes and Locke, wrote that the latter “had approached the study of law and political society entirely from an unhistoric point of view and had substituted dogmatism for historical investigation”, while “he [Maine] demonstrated that our legal conceptions […] are as much the product of historical development as biological organisms are the outcome of evolution”.2 Morgan may have been unkind to legal philosophers and theorists, but we can agree with him that the origins of law constitute a problem that should not be left to them alone. It should also be tackled in concrete historical terms. Some of the questions that require an answer in this connection are: What are the conditions for the earliest phase of juridification of human relations? To what extent can one identify general lines or laws of development?

1. The Question of Definition A discussion of, and investigation into the beginnings, the origins, of law presupposes an understanding of what it is that is beginning. Is a definition of law therefore required? Significantly, most authors dealing with the question of “early law” in specific cultures briefly touch upon this question, without offering an elaborate answer. They then move on to other matters and this suggests that if a problem would exist in this respect, it is not considered particularly urgent or relevant. Terminology considered to be understood in more or less the same way by the audience is usually not explained. Most authors explaining the beginning of law in a specific culture apparently expect their readers to share a more or less identical concept of law, in the same way as other terms used (e.g. “state”, “authorities”, “force”) are considered to have a sufficiently clear and generally understood meaning. The question of definition is more difficult to avoid when the problem of the beginning of law is considered from a more general point of view. One might look for help to other disciplines. In legal anthropology, one of the current definitions (“a social norm is legal if its neglect or infraction is regularly met, in threat or in fact, by the application of physical force, ostracism or shame by an individual or group possessing a socially recog2

H.S. Maine [Sir Henry Sumner Maine], Ancient Law, with an Introduction by J.H. Morgan, Everyman’s Library edition, London/New York, 1917; Morgan’s Introduction on pp.v-xiii. The only remotely comparable work known to me is W. Fikentscher, H. Franke & O. Köhler (eds.), Entstehung und Wandel rechtlicher Traditionen, Freiburg/München, 1980.

Law’s Beginnings and Early Law

3

nized privilege of so acting”) is so broad that it would even embrace social norms operating among primates.3 Hoekema then refers to an approach adopted by several authors in the Fikentscher volume (mentioned above in the footnotes), who define the beginning of law as the rise of a more formal, more authoritarian structure of law and its administration.4 The formula is too vague to be of much help. Legal philosophy may offer further elucidation. Cliteur notes correctly that law is not something that exists in reality (“outside and independently from ourselves”, I would say), but that it is a matter of what we wish to regard as law, a man-made construction.5 This leads him to the conclusion “that the question is not so much where does law start but rather where do we think that law should start”6 [Cliteur’s italics]. The problem is turned into a normative one in this way. We derive from elsewhere (religion, ideology, etc.) a certain idea of what law should be and begin to construct law, first in our minds and then in the reality of social life. This could be a suitable approach when dealing with present-day law, but it is of no assistance in studying “early law” and “law’s beginnings”. We could, for instance, agree that certain family matters should be brought within the sphere of law, while others should remain outside the law’s reach. The sum of all such choices would produce a complete catalogue of the contents of a legal system and by the same token a certain kind of definition of law. But such a definition of law would be difficult to apply in a different cultural setting, while it is precisely that kind of definition that would be needed. People apparently feel that there is a sufficiently general consensus about what is meant by “law”, so that an actual definition is regarded as superfluous, and this consensus would also allow us to deal with the law of civilizations very different from our own. This consensus need not be based on a shared underlying philosophy. Nobody would for instance deny that law, in any cultural setting or historical phase, is characterized by the occurrence of peculiar institutions, practices and procedures. 3

4

Quoted by A.J. Hoekema, “A New Beginning of Law Among Indigenous Peoples. Observations by a Legal Anthropologist”, Feldbrugge, Law’s Beginnings, 181-220, at 182. Hoekema derives the quotation from P.R. Grant, “Recognition of Traditional Laws in State Courts and the Formulation of State Legislation”, B.W. Morse & G.R. Goodman (eds.), Indigenous Law and the State, Dordrecht/Providence, RI, 1988, 259268, at 260.

5

As quoted by Hoekema, 183. The formula is logically defective (defining idem per idem), but something may possibly have been lost in translation.

6

P. Cliteur, “Incipient Law. Aspects of Legal Philosophy”, Feldbrugge, Law’s Beginnings, 1-9, at 7.

Cliteur, 9.

4


They need not all be there, and some of them may also occur outside the legal system, but once a certain number of them are present, in sufficient intensity, and in particular constellations, we recognize the existence of law. The following institutions could be mentioned: — — — —

dispute settlement by a third party; fixed procedures for dispute settlement; acceptance and enforcement of third party dispute settlement; recognition of the validity of precedents in dispute settlement.

These may be considered as part of the bedrock upon which a legal system may eventually be built. By themselves they do not yet constitute such a system, or at least only an embryonic one. Once a second layer develops, we can more confidently speak of emerging or early law; such a layer would involve: — — —

specialization and then professionalization of dispute settlement: courts; verbal fixation, orally or in writing, of procedural and substantive rules concerning dispute settlement; monopolization of rule enunciation by specific persons or agencies.

In a third phase the legal system reaches its maturity when at least: — — —

a central authority acquires the power to enunciate rules; and then creates new rules; and increasingly monopolizes enforcement of rules.

In this third phase, law becomes an essential element of the power structure of the society concerned and co-defines the emerging state. The definition of law which gradually takes shape in this way could be called enumerative, in that it is constructed through the enumeration of various elements considered to be generally accepted as constituent parts of a legal system. To put it in concrete terms: law is courts deciding disputes, bailiffs executing judgments, lawyers arguing precedents, and of course also the rules they apply—laws, government decrees, all kinds of regulations, etc.7 The enumeration should also not be regarded as exhaustive—other elements could be added. It attempts to formulate the common denominator of a great variety of views on law and is, in that 7

This view is, in many ways, close to those of the American realist school.


5

sense, pragmatic. Proponents of more specific definitions of law may well miss elements which they consider essential or, at least, more important than the elements included in the enumeration. It is implicit in this approach that law is not regarded as something that is either there or not. It emerges gradually; many authors have used the term “juridification”, thereby indicating that certain practices and institutions may acquire a legal character incrementally, by stages. Finally, the emergence of law in the sense explained above is not only a phenomenon from the distant past, but it is still occurring in the present in various parts of the globe. Moreover, juridification of particular corners of our Western society is something that we can observe ourselves and in which we are often ourselves involved. In modern Western civilization, the volume of law has grown almost explosively during the last half-century; many sectors of life which were left to informal social procedures and custom before World War II are now covered by a dense network of officially enacted laws and regulations. Phenomena from prehistory and proto-history, the study of which requires great effort, can also be observed in our own societies, but usually at a lower organizational level.

2. The Indo-European Aspect Background If, in Ranke’s famous words, the basic task of the historian is to find out how it actually has been (wie es eigentlich gewesen ist), then every bit of the past is fair game. But an understanding of any situation in the past is enhanced by knowing what preceded it. This will always lead us further back, to the border area between history and prehistory, when written sources are getting ever scarcer, until in the end only mute objects allow some kind of reconstruction of the distant past. Legal history is particularly vulnerable in this respect, because knowledge of law depends heavily on what has been written down. Even in the present, it is often difficult to establish the contents of unwritten law, although few would doubt its existence. It is possible to construct theories about the emergence of law, and it certainly has been done; such theories can be tested to some extent by looking at phenomena that can be observed in the present, legal developments in our modern Western society, or in very different cultures, surviving today. But this would only lead, as a rule, to an abstract conceptualization of the origins of law: at some time and place in the distant past, in primitive communities, social devices evolved which provided the

6


fertile soil for the genesis of law, first in unwritten form, and ultimately fixed in writing. The preferred approach in this chapter is to work backwards, in the traditional way of the historian, by asking the question: What was there before it? In today’s globalized world, Western law has become completely dominant and its impact is inescapable. The study or definition of “Western law” is outside the scope of this study; it will be sufficient to point out that Western law itself consists of a vast compact of very different legal systems, themselves highly complicated. Its traditional division into codified systems and common law systems has some convenience value, but nowadays needs many corrections.8 When we go back in history, however, the paths of development of the various Western legal systems converge. This is to a large extent, although not exclusively, connected with the preponderance of Roman law. The Romans constructed a legal system of much greater sophistication than those of the nations with which they came into contact; in the course of time, rejection or disregard of the Roman model stopped being an option. But Roman law did not influence its neighbouring systems all in the same way. It was digested (the “reception” of Roman law) over a long period, in legal systems which were often sharply different among themselves. The main other component, in most European countries, was a system of Germanic origin. This was not only the case in the countries of North-Western Europe, predominantly populated by Germanic tribes, but also in several Latin countries, where kingdoms of Germanic invaders, bringing their own laws, were established in the early middle ages (e.g. various Germanic tribes in France, the Langobards in Northern Italy and the Visigoths in Spain). The resulting legal variety became even richer when the European cultural space came to include the nations of Central and Eastern Europe. The continuing presence of Roman law, albeit with different intensity, guaranteed a degree of intellectual unity of legal thought. Modern thinking about basic concepts, such as contract, obligation, property, etc., is fundamentally indebted to Roman law; in this way, legal discourse across the borders of different legal regimes has been greatly facilitated. 8

Judge-made law is important, and in some areas dominant, in many codified systems, while on the other hand systematic legislation, which might come close to genuine codification, is widely practiced in common law systems. I believe that the value of the distinction between the two legal worlds is not so much in the antithesis codification/judge-made law, but in the importance assigned to the concept of “legal system”. The latter concept is more central in legal thinking and discourse in the civil law countries, and this may be connected with different views of the role of the state.


7

The ineffaceable preponderance of Roman law in European legal history tends to obscure the fact that there has also been a time when the archaic law of the Romans was in many ways comparable to the legal systems of other European cultures at a similar level of development.9 When the obvious question is then asked: “What preceded this stage?”, the numerous parallels and similarities suggest a search for certain common origins. Indo-Europeans? The basic and most obvious parallels are of a linguistic nature. The texts of the earliest laws of many European peoples have often been written in the vernacular,10 and these languages all belong to the linguistic family known as Indo-European.11 Would it be possible to trace the common roots of certain legal institutions in the Indo-European past? A well-known attempt in this direction was undertaken by É. Benveniste in his vocabulary of Indo-European institutions.12 Considerable detail was added by S. Zimmer in a study specifically devoted to “Indo-European law”.13 This approach, of course, implies the assumption that at a certain moment in the past there existed an ethno-linguistic community of people possessing a common language (or, at least, a series of related languages or dialects) which may be regarded as the ancestor of the subsequently evolving Indo-European languages, and a set of societal institutions (the 9

This aspect of Roman law studies may not have received much attention through the ages. For a recent study in this area, see B. Sirks, “An Aspect of Archaic Roman Law: Auctoritas tutoris”, in Feldbrugge, Law’s Beginnings, 45-58.

10

11

The Germanic leges barbarorum, written in a corrupt Latin and often containing Germanic expressions, being the main exception; other Germanic laws, such as those of the Anglo-Saxons and various Scandinavian peoples, are in the vernacular; the same goes for the impressive body of Old-Irish law and for most early Slavic codifications.

12

The volume on which this chapter (Feldbrugge, Law’s Beginnings) is based contains studies on ancient Indian, Greek, Roman, Irish, Frisian, and Russian law: D. Kolff, “Early Law in India”, 11-22; E. van der Vliet, “Justice and Written Laws in the Formation of the Polis”, 23-43; B. Sirks, “An Aspect of Archaic Roman Law: Auctoritas tutoris”, 45-58; D. Edel, “An Emerging Legal System in an Embryonic State. The Case of Early Medieval Ireland”, 59-76; N. Algra, “The Lex Frisionum. The Genesis of a Legalized Life”, 77-92; F. Feldbrugge, “The Earliest Law of Russia and its Sources”, 93-113.

13

É. Benveniste, Le vocabulaire des institutions indo-européennes, Paris, 1969; English translation, London, 1973; German translation, Frankfurt a/M., 1993; Russian translation, Moskva, 1995. Chapter 2 of Part 2 is devoted to law.

S. Zimmer, “Glimpses of Indo-European Law”, in Feldbrugge, Law’s Beginnings, 115136.

8


question whether such institutions should already be termed “legal” may be left aside for the moment) which were at the source of legal institutions encountered later on among various Indo-European peoples and displaying a sufficient degree of similarity. The first part of the assumption (the existence of an Indo-European ethno-linguistic community at some time in the past) is not seriously doubted by modern linguistic and archaeological scholarship. Although the time and place of this existence have been the subject of intense debate for several centuries, the dominant view nowadays is that one should look at the period from the 5th to the 3rd millennium B.C. in the Pontic-Caspian area.14 14

Cf. J.P. Mallory, In Search of the Indo-Europeans. Language, Archaeology and Myth, London, 1989, 186. In his paper, Zimmer takes the position that Proto-Indo-European (the reconstructed language of the as yet “undivided” Indo-Europeans) cannot be dated earlier than 3500 B.C., and that 3000 or even 2500 would be a more likely date. The latter date is more amply adstructed in the author’s Ursprache, Urvolk und Indogermanisierung. Zur Methode der Indogermanischen Altertumskunde, Innsbruck, 1990. The hypothesis presented in the latter work is that the emergence of Proto-IndoEuropean (and of the people speaking it) was the result of amalgamation processes of ethnic elements (individuals and small groups) of different origins, who had been ejected or had migrated from their own homelands. Such processes, resulting in the comparatively rapid and sudden formation of new cultures and ethnic entities, are known from history and anthropology, and can be accompanied by very fast language change by means of so-called creolisation. The congeries of migrants, vagrants, adventurers, robbers, etc. who were the carriers of this development is characterized as a colluvies gentium by the proponents of this theory. As the theory would also involve the occurrence of several of such amalgamation processes, it could explain the considerable differences between various Indo-European language groups at a very early stage. It would also allow the denial of an Urvolk and an Ursprache for the Indo-Europeans, in other words, it would be perfectly possible that an ethnolinguistic entity speaking the—theoretically reconstructible—Proto-Indo-European language never existed as such, and neither an ethnos that could be identified as “Indo-European”. On the other hand, although this theory may be able to explain certain phenomena, it also evokes numerous questions to which it does not provide answers. If Proto-IndoEuropean was such a recent phenomenon, what were its constitutive elements? The history and archaeology of the Near East and the western part of Eurasia around the middle of the 3rd millennium B.C. are sufficiently well-known to suggest a number of candidates, if there would be any. How can the Indo-European acquis be explained by the languages and cultures of these civilizations? Can the theory be supported by evidence or at least indications from non-linguistic sources? The archaeological evidence certainly points in a different direction. This can no longer be countered by the nostrum that pots have no language. The main lines of the scenario of cultural development in the Pontic-Caspian area since the 5th millennium B.C. are quite clear by now. Starting with the earliest and most primitive Pit-Grave culture in the North Caspian area this development and its gradual differentiation can be traced in considerable detail until the first historical ethnic entities of undoubtedly Indo-European origin appear.


9

The examination of the earliest known law of various Indo-European peoples easily leads to the hypothesis of a common core of legal institutions, which would take us back to these times and places. In his paper, Zimmer has identified a number of such institutions, of which marriage law and sick-maintenance15 are discussed in greater detail, together with a survey of terms having significant legal connotations and a common Indo-European origin. Additional parallels have been suggested in other studies. A general caveat should precede such an investigation. The occurrence of similar institutions in the legal systems of several, or even all, historical cultures of peoples of Indo-European stock does not constitute absolute proof of the existence of similar institutions in the prehistoric ProtoIndo-European phase and, even if we could assume such an existence, of a genetic link between earlier and later phenomena. But the progress of science requires a combination of common sense, imagination and intuition (and good luck). Indo-European Patriarchy Patriarchy is not so much a legal institution as a fundamental principle underlying the organization of Indo-European society and, therefore, also its law. It affects first of all the legal status of individuals, then marriage law, property law, and also ‘public’ law. In a general sense, patriarchy ap This area, or to be more precise, the steppe area to the north of the Caspian Sea and westwards to the river Dniepr had often been singled out in the past as the most likely staging area from where the Indo-Europeans spread out in several directions. The subsequent accumulation of archaeological data has made it possible to draw up a more detailed map in time and space of the expansion and transformations of the South-Russian kurgan grave cultures. This map fits so well what is known about the spreading and variegation of Indo-European languages, that it would be very hard to produce another explanatory model of comparable persuasive power. Although definitive proof is difficult to present in such matters, the thesis about the South-Russian kurgan cultures and their link with the diffusion of Indo-European languages is now widely, although not universally accepted. See, generally, Mallory, op.cit. Older fundamental Russian (Soviet) archaeological literature is quoted in my The South-Russian Pit-Grave Culture and the Problem of the Homeland of the Indo-Europeans (published as a manuscript, Leiden, 1964). 15

Zimmer (op.cit., 127-128) points to the occurrence of the institution of sick-maintenance in Old Irish and in Hittite law (separated by thousands of kilometers and years). One might add very brief references to something similar in Germanic and Slavic law: the Salic Law allows the costs of medicatura on top of the composition for injuries (Lex Salica, 19-6, Pactus legis salicae, 17-4); the Russkaia Pravda (Short Version, art.2) grants the doctor’s fee (lettsiu m’zda), also on top of the composition for injuries. For Old-Irish law, where the subject is of considerable importance, see D.A. Binchy, “Sick Maintenance in Irish Law”, Eriu, Vol.12 (1938), 78-134.

10


pears to be a dominant aspect of social organization at a certain level of development and as such occurs in a great variety of cultures. The peculiarities of Indo-European patriarchy come to the fore most prominently in archaic Roman law.16 Roman patriarchy was of exceptional historical importance, because its elaboration in the form of patria potestas was of enormous influence in the development of European and Western law and thereby on the legal status of, and the relationships between, the sexes. In his study of archaic Roman law, Sirks has argued that it was not male dominance as such which determined Roman patriarchy, but the idea of the unity of the gens and its genius, manifesting itself in the vis genitalis of the sexually mature male members of the gens.17 As the mana of the father or grandfather would obviously be superior to that of his offspring, the status of his sons and grandsons remained very considerably reduced while he was alive. Once the father died, his sons would move into his place as fully empowered representatives of the genius, each becoming a paterfamilias in his own right. Similar arrangements occur among other Indo-European peoples, although the power of the paterfamilias is generally not as exclusive as it is in Rome (a point already made by Maine18).The dynastic histories of Germanic and Slavic peoples indicate that it was not so much the ruler but, rather, the ruling house which was regarded as the decisive factor. Among the Merovingian and Carolingian kings of the Franks, the realm was usually divided among the surviving sons of the deceased ruler. The idea of power belonging, not to individuals, but to the ruling house was particularly strong among the Russian Rurikids. An informal hierarchy among the male members of the house was based, first on generation, then on age. The most senior prince would rule in the nominal capital Kiev, the other princes in the provincial capital (also ranged in order of importance). The death of a prominent ruling prince would occasion a kind of game of musical chairs, all lower ranking princes moving one step up. The underlying idea was very clearly that every adult male member of the house had a right, according to his position in the family hierarchy, to share in the family ‘estate’—the government of Kievan Rus’. Primogeniture and substitution (of predeceased fathers by their sons) appeared only later 16 17

See the paper by Sirks, quoted above.

18

Sirks refers to H. Wagenvoort, whose original studies have been influential in expounding these views: H. Wagenvoort, Imperium. Studiën over het ‘Mana’-begrip in zede en taal der Romeinen, Amsterdam, 1941; English edition: Roman Dynamism, Oxford, 1947.

Maine, op.cit., 85.


11

on in medieval Germanic and Slavic legal systems (this topic is discussed in more detail in the chapter on “The Elder Brother in Russia”). A similar institution seems to have existed among the Celts, where the four generations descended from one great-grandfather, the derbfine, were all entitled to a certain share.19 The ideological background of Indo-European patriarchy is unquestionably of a religious nature. For ancient Rome, this has been argued convincingly by Wagenvoort in his seminal works. The ancestors lived on in the following generations and continued to be part of the gens. The performance of certain rituals was essential in this respect and this explained the need to secure the continuation of male offspring, because the vis genitalis was transmitted by them only. A very similar view seems to have been taken in Old Indian society.20 The religious foundation of patriarchy faded among other Indo-European peoples, but obvious indications remained. Celtic and Germanic rulers of pagan times regularly traced their descent back to tribal deities; this is especially well documented for Scandinavian rulers of the earliest historical periods. In Marxist and neo-Marxist historiography this perspective is reversed, because religious views are regarded as part of the superstructure. The male half of the population is then seen as a kind of exploiting class, controlling the means of production and inventing an ideology to legitimate its dominance. One need not deny the relevance of material and economic factors to reject this approach as too simplistic. In its schematic approach to historical development, Marxism also assigns a special place to a matriarchal ordering of society. Much has been written about matriarchal survivals in the cultures and attitudes of different Indo-European peoples. Some of these may obviously be connected with cultures which flourished before the arrival of the Indo-Europeans. Whether Proto-Indo-European culture also contained matriarchal elements is a question which cannot be answered here. Particularly among the Germanic peoples there are a few indications.21 19 20 21

Cf. N. Chadwick, The Celts, London, 1970, 113-114; Edel, op.cit., 62.

Cf. Kolff, op.cit., 11-12.

One of the best known is Tacitus’ communication in Germania (20): “Sons of sisters enjoy the same honour with their maternal uncle as with their father. Some [nations] consider this blood relationship as more sacred and closer, and demand preferably [sons of sisters] as hostages, because [in this way] they would have a better control of the minds and a broader grip on the family.” Matriarchal survivals among Germanic peoples may of course also be the result of pre-Indo-European substrata. In the oldest version of the Russkaia Pravda, among the relatives entitled to the blood feud, along with male relatives on the paternal side (son, father, brother, sons of brothers), the sons of sisters are included (see, also, the chapter on the Russkaia Pravda).

12


Chieftaincy and Kingship It is not overly speculative to assume that the Indo-European patriarchal principle was also at the basis of the development of social leadership forms such as chieftaincy and later on kingship. Ancient Irish society appears to represent a comparatively early stage where the numerous kings of various rank were in fact not much more than tribal chiefs.22 The Germanic tribes, at the threshold of history, were already amalgamating into larger, nationlike units, but Gregory of Tours relates in his Historia Francorum how the early Frankish kings, such as Clovis and his ancestors, were engaged in the elimination of petty kings among the Salic Franks.23 The same thing happened in Russia, as related in the Primary Chronicle. The elimination of non-Rurikid Slavic princes was completed under St.Vladimir. If we accept that there was an original idea of vis genitalis, a life-giving force, by which the life of the ancestors perpetuated itself in posterity, transmitted by males, but present in females as well, then a living paterfamilias could evolve into the leader of a large family group and, then, achieve the chieftaincy of a tribe. This could be accompanied by the elaboration of the religious/ideological dimension connecting the welfare of the community with the recognition of the divine framework in which the social relationships were anchored. A series of small steps would then lead to the transition from tribal chieftain to tribal king and then to king of the entire people. After the baptism of Europe, many elements of divine kingship were retained in a christianized form: the divine right of kings, the elaborate religious ceremony around the assumption of kingship (anointing, coronation), the king as healer, etc. The Professionalization of Law Professionalization of law, in the sense of the emergence of a class of persons who are more or less exclusively engaged in legal business, is an important aspect of the processes around the origins of law, as argued at the beginning of this chapter. “Exclusively”, in this context, refers both to the fact that such persons do little else but law, as to the fact that others have little concern with legal matters (except as occasional parties in legal disputes). Law becomes “lawyers’ business”. Professionalization of the law was most pronounced, among the different early Indo-European legal systems, in ancient Irish law, where a socially prominent class of lawyers, the brithemain, existed, who had split 22 23

See the Edel paper, quoted above.

Gregory of Tours, The History of the Franks, translated with an Introduction by Lewis Thorpe, London, 1974.


13

off from the general class of learned men, the filid.24 In India, a profession of legal councillors had gradually detached itself from the learned brahmin class, while also the administration of justice in the royal courts must have produced its own specialized personnel. Among the Germanic peoples legal professionalization was not as well developed but still well attested. The old Frisian asega was expected to know the law by heart; he was in fact the mouthpiece of an oral code of law. The laws of the Salic and Ribuarian Franks describe the task of the rachineburgi as the enunciation of the law.25 Both the Frisians and the Franks left the actual judgment to the popular assembly (the “thing”). German legal historians generally regard the institution of the ‘law-sayer’ (asega, iuridicus) as an innovation, assuming that originally the statement of the applicable law and the judgment based on it belonged to the competence of the assembly.26 The main foundation for this view seems to be Tacitus’ brief description of Germanic procedure in his Germania, where he states that at the trial first the king or a chief would express his opinion (possessing authority but no decisive force) and propose a judgment, which then would be either rejected by public grumbling or accepted by the bystanders’ beating their spears together.27 In a more circumstantial way, some adstruction for the more recent character of the ‘law-sayer’ in Germanic procedure could be derived from provisions in the Frankish laws which speak about the appointment of rachineburgi by the grafio (roughly: the presiding judge).28 This might suggest that more or less anybody could serve as ‘law-sayer’. The weakness of these arguments is obvious. Tacitus’ statement is brief and refers to all kinds of decisions made by the assembly (including political ones). It does not at all exclude that, in specifically legal disputes, the exposition of the case and the applicable law would be referred to an ‘expert’. The provision about the appointment of rachineburgi by the judge refers to a very specific situation during the execution of a claim; also, it appears that the judge did not, in fact, appoint a few chance citizens as 24

Edel, op.cit., 64-65.

Pactus legis salicae 57, Lex Salica 60, Lex Ribuaria 55.

27

H. Brunner, Grundzüge der deutschen Rechtsgeschichte, Leipzig (2nd ed.), 1903, 17; R. Schröder, Lehrbuch der deutschen Rechtsgeschichte, Leipzig (3rd ed.), 1898, 43-44; K. von Amira, Grundriss des germanischen Rechts, Strassburg (3rd ed.), 1913, 255; H. Conrad, Deutsche Rechtsgeschichte. Band I: Frühzeit und Mittelalter, Karlsruhe (2nd ed.), 1962, 28.

28

Tacitus, Germania 12: “mox rex vel princeps […] audiuntur, auctoritate suadendi magis quam iubendi potestate. Si displicuit sententia, fremitu aspernantur; sin placuit, frameas concutiunt [...].”

Pactus legis salicae 60, Lex Salica 52.

25 26

14


rachineburgi, but collected seven suitable officials from an available pool of rachineburgi.29 The size and level of complication of some of the Germanic leges, particularly the Salic Law, would be hard to explain if there were no persons possessing extensive specialized legal knowledge. Some of them are, in fact, mentioned by name in the prologue of the version of the Salic Law known as the Pactus legis salicae.30 In the oldest Russian law, the Russkaia Pravda, various princely officials are mentioned31 and some of them may have served as judges or court officials (bailiff, sheriff, etc.), but there is no evidence of the presence of legal professionals in the sense outlined above. Professional administrative expertise, which would include knowledge of the law, developed in the later middle ages among the clerical servants in the chanceries of the princes; but compared to the situation in Western Europe, the rise of a professional class of lawyers was a late phenomenon in Russia. On the basis of what is known about the existence of a legal profession in the early Irish, Indian and Germanic cultures, and about its genetic connection with the more general class of learned men in these cultures, the hypothesis could be advanced that—at an early stage of the evolution of Indo-European peoples—there existed a class of people who served as a repository of knowledge about what was right and proper in the fields of religion, ritual, ethics, social mores and law (if it is possible to speak of law as a separate entity at this stage). The Penalty Catalogue One of the most striking features of the earliest legislative layers is the prominence of catalogues of penalties or, rather, private fines (Germ. Busskatalog) or fixed compensations. The Germanic leges barbarorum, at least those in which not Roman but Germanic law is dominant,32 consist almost entirely or at least for the greater part of such catalogues. The same goes for the oldest layer of the Russkaia Pravda. The oldest laws of other Slavic peoples are mostly of a somewhat later era, but still display the same pattern (see the chapter on the Russkaia Pravda). 29 30

Ibidem: “Then the count [judge] will collect 7 suitable rachineburgi and go with them to the house of the debtor […].”

31

Visogast, Bodogast (Arogast), Salegast and Vidogast.

32

The iabetnik (agent, sergeant?), mechnik (lit. “sword-man”, sheriff?), ognishchanin (lit. “hearth-person”, domesticus, steward, bailiff ?), tiun (steward), virnik (collector of the vira, the fine replacing the wergeld).

Most clearly the laws of the Salic, Ripuarian and Chamavian Franks (the Ewa ad Amorem, for the latter), of the Saxons, Frisians and Thuringians, and of the Langobards; somewhat less the laws of the Visigoths, Burgundians, Alamans and Bavarians.


15

In Old-Irish law, the situation is more complex, mainly on account of the wealth of sources. There can be no doubt, however, that Old-Irish law also knew an elaborate scale of fines (usually called “honour-price”, lóg n-enech or díre) for offences against persons.33 While in most other systems the emphasis is on the fine itself, related to the status of the victim and the seriousness of the injury or offence, Old-Irish law was before all concerned with the determination of status.34 The Hittite laws, to be dated roughly about 1500 B.C., antedating comparable European sources by about two millennia, also consisted to a considerable extent of catalogues of fixed compensations for personal injuries. Its first article, as in the Russkaia Pravda, is devoted to homicide: “If anybody kills a man or a woman in a fight, he shall give four persons, men or women [slaves], as compensation.”35 The following articles deal with the killing of slaves and various forms of injuries, offering many parallels with the Russkaia Pravda and the leges barbarorum. Otherwise, there are also numerous parallels with the laws of non-Indo-European peoples of the Ancient Near East, which should not surprise in view of the chronological and geographical surroundings of the Hittite laws.36 One of the striking differences remains the treatment of manslaughter and physical injuries; 33

34

Edel, op.cit., 32; F. Kelly, A Guide to Early Irish Law, Dublin, 1988, 126ff.; N. McLeod, “Interpreting Early Irish Law: Status and Currency”, Zeitschrift für Celtische Philologie, Band.42, 1987, 41-115.

Cf. E. MacNeill, “The Law of Status or Franchise”, Proceedings of the Royal Irish Academy, Section C, Vol.36, 1923, 265-316. This paper contains the English translations of the two most important texts on this subject, the Crith Gablach (“Branched Purchase”) and the Uraicht Becc (“Little Grammar”). An annotated edition of the Crith Gablach by D.A. Binchy, as Vol.XI (Dublin, 1941) of the Mediaeval and Modern Irish Series. For the honour-price topic, the most important texts are Bretha Crólige en Bretha Déin Checht; English translations (by D.A. Binchy) in Eriu, Vol.12 (1938), 1-77 (Bretha Crólige) and Eriu, Vol.20 (1966), 1-66 (Bretha Déin Checht). The first text is followed by D.A. Binchy’s study on “Sick-Maintenance in Irish Law”, quoted above, which contains the apposite statement: “Students of comparative law have long realized that the rules governing compensation for personal injuries offer perhaps the most fruitful field for the drawing of parallels between ancient legal systems” (at 78).

35

36

Based on the German translation of J. Friedrich, Die Hethitischen Gesetze, Leiden, 1959; English translation by A. Goetze in J.B. Pritchard, Ancient Near Eastern Texts relating to the Old Testament, Princeton, 1950. Russian translation by I.M. D’iakonov in Vestnik drevnei istorii, 1952, No.4, 259-308. In the parallel text of the Hittite Law, the first article is split into two parts, treating the killing of a man or a woman as different torts. Cf. H. Winckler, Die Gesetze Hammurabis, Leipzig, 1902; I.M. D’iakonov, “Zakony Vavilonii, Assirii i Khettskogo tsarstva”, Vestnik drevnei istorii, 1952, No.3, 199-303, No.4, 205-321. Old Testament legal prescriptions are primarily to be found in Deuteronomium 21-26 and Exodus 21-23.

16


the laws of the Semitic peoples regularly prescribe capital punishment or at least a reaction based on the principle of “an eye-for-an-eye”, while the oldest layers of the laws of Indo-European peoples prefer some form of material compensation of the victim or his relatives. In archaic Greece no catalogue, along the lines of those mentioned above, is known, although there are indications in Homer’s Iliad that the relatives of the murdered man had to be placated by the payment of a fixed amount (ποινή).37 According to all these sources the fine was to be paid to the injured person, or his close kin in the case of homicide, but in some instances (such as in Russian law) subsequent legislation diverted the payment to the coffers of the ruler, reflecting increased assertion of public power. A close comparison of the rates set for various injuries often suggests that the personal fine did not primarily aim at repairing the material damage caused by the injury, but at restoring the victim’s status, diminished by the offence. There are also indications that the catalogues of injuries and the appropriate fines contained a considerable element of case law; in other words, much of it was based on precedent. This suggests the hypothesis that, if there was a common Indo-European core in all these systems, it was probably not very extensive. In the oldest layer of the Russkaia Pravda (see the chapter on this subject), the catalogue was quite short and listed only the most basic offences (homicide, grievous bodily harm, light bodily harm, physical violence, insults). This may have been close to the original situation. Case law would then produce further refinements. In some of the Germanic laws, the catalogues go into ludicrous detail, such as listing fines for separate parts of individual fingers. Collective Liability The connection with the penalty catalogues is obvious, if one taken into account that reparation of the offence by paying a sum of money was itself a substitute for revenge (this is clearly illustrated by the first provision of the Russkaia Pravda). Revenge was a matter for the family or the clan. Originally, one would presume, the offence would be regarded as an insult of the family or clan to which the actual victim belonged. Conversely, the offender’s family or clan could be held responsible for the misdeeds of one of their members. Several systems have retained traces of such collective responsibility or liability. The Germanic laws are the most clear in this respect. The Lex Saxonum (XIX) provided that, in cases of homicide, one-third of the wergeld 37

I 632-636, payment of ποινή for the murder of a brother or a son; Ο 497ff., the famous description of the court scene on Achilles’ shield, where two men submit a dispute about the ποινή for a murdered man to the city court.


17

was to be paid by the close relatives (proximi) of the perpetrator and two thirds by himself. The other side of the coin was that, on the side of the injured party, the wergeld had to be divided and several Germanic laws contain pertinent rules.38 In the Expanded Version of the Russkaia Pravda, the verv’ bears collective responsibility for the payment of the wergeld of a person killed within its territory, if the murderer remained unknown. The exact meaning of verv’ has been the subject of endless debates; it has obvious territorial connotations, i.e. it covers a group of people inhabiting a particular territory, but it is uncertain whether it would embrace everybody or consist of a voluntary association. Moreover, the question has been asked whether, beyond its territorial aspect, an element of consanguinity was also included.39 In the Hittite Law Code (art.173), there is a single provision which could point to collective responsibility: “If anyone opposes the judgment of the king, his house shall become a ruin.”40 But this rule could very well refer to the situation which may occur in any legal system, where a penalty entailing material consequences inevitably affects not only the offender himself but, also, his close relatives. The collective liability which we have in mind here is a much more specific institution, connected with a particular type of patriarchal social system. If the unity of the patriarchal clan is considered to be based on a common origin and a common vital force, then an attack against a single member may be regarded as an attack against all. A similar thought process may make the entire clan or family group of the attacker responsible for the attack. The wergeld or composition, which emerged at a certain stage as a substitute for the original revenge, would then be due by the entire group, with the victim and his family as a collective creditor. The evidence suggests that this stage did not last long in most cultures, because the consolidation of a central authority soon brought about the elimination of private individuals and groups from the process of reaction against breaches of the peace. As soon as kings appear, they tend to forbid feuds and monopolize the punishment of offenders; the wergeld then disappears. 38 39

40

E.g. Lex Salica 65 (Pactus legis salicae 62).

For an extensive overview of the various viewpoints advanced since the 19th century on the meaning of the verv’, see B.D. Grekov (ed.), Pravda Russkaia II (Kommentarii), Moskva/Leningrad, 1947, 261-274; and also B.D. Grekov, “Bol’shaia sem’ia i verv’ Russkoi Pravdy i politskogo statuta”, Izbrannye Trudy, Vol. II, Moskva, 1959, 564575.

See O.R. Gurney, The Hittites, London (rev. ed.), 1961, 93, 99.

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Some Preliminary Conclusions Indo-European scholarship is a vast field. In the preceding sections, we have tried to identify a few common strands in early legal systems of Indo-European peoples, in order to pose the question whether the similarities established may perhaps be based on a common origin. The painstaking reconstruction of what one might call the proto-legal system of the proto-Indo-European could be somewhat advanced in this way, an exercise which is worthwhile on its own merits, as well as for the light it might shed on the processes surrounding the origins of law. Of the many aspects that have not been discussed above, two should at least be mentioned briefly. One is the importance of procedure.41 The emergence of law is nearly always closely connected with the solidification of procedures. A famous saying of American legal realism is: Procedure is the heart of the law. Several terms suggesting articulate procedural institutions at an early stage of Indo-European developments have been identified by Zimmer in his review of a possible Indo-European legal terminology.42 The earliest documented phases of the legal systems of several Indo-European peoples show already the existence of fixed procedural institutions. One example (surviving to this day in the jury of Anglo-American law) is the occurrence of a group of twelve men to whom certain duties are entrusted.43 The second aspect is the religious one. In the ‘early law’ phase, which is the focal point of this chapter, the religious dimension of the law has already faded in most of the systems under consideration. There are indications, however, that in the prehistoric phase of law (before we have any written sources) the links between law and religion, between the entire complex of what was considered divinely ordained, proper, right, ethical, common practice, socially beneficial, and legally binding, were much narrower. As this complex became more elaborate and the knowledge of it more fixed and formalized, a class of experts arose, people who knew how things should be and how they should be done, and who transmitted their knowledge to new generations of experts.

41 42 43

This point is also noted in the papers of van der Vliet and Algra, cited above.

Cf. the paper by Zimmer quoted above.

The “twelve” occur in nearly all Germanic laws; see the paper by Algra, or, e.g. the Lex Saxonum XVI. For Russian law, see art.15 of the Short Russkaia Pravda. Alkinoos, king of the Phaeacians, ruled his country as the leader of twelve chieftains, in Homer’s Odyssee, η 390.


19

3. Looking beyond the Indo-Europeans A simple logical consideration leads us to the next step. Certain legal systems possess common or at least similar institutions; they also belong to Indo-European peoples. If such institutions do not occur anywhere else, then there would be good reason to assume an Indo-European origin. It would therefore be appropriate now to have a brief look at certain other legal systems, in particular such early codifications as may help in identifying the peculiarities of the Indo-European systems. These may produce a general image, limited of course and possibly one-sided, of societies which were roughly at the same level of socio-cultural development, no matter how different their cultures and world-views might have been. The choice of suitable candidates is wide and a selection is inevitable. Practical considerations (i.e. the materials must be available and accessible to the author) lead to a choice embracing the Code of Hammurabi (ca. 1760 B.C.), the law code of Bagrat Kuropalates, ruler of Southern Georgia in the middle of the 9th century A.D., and the Great Statute (Ikh Tsaaz) of the Oirat Mongols of 1640. The Code of Hammurabi44 If we restrict our attention to the contents of the Code,45 the first thing that will be noticed is that the overall picture produced by the Code is of a society considerably more complex and sophisticated than those of the tribal societies and incipient principalities of early medieval Europe, from Ireland to Russia. The legal culture in particular is much more advanced: the Code is preceded by centuries of legislation on specific topics and even a few earlier attempts at codification; the courts possessed records of earlier decisions; written contracts concerning land, houses and slaves were a long-established practice, etc. Although the Code is based, to a great extent, on earlier precedents, or on case law in other words, its level of systematization is respectable. Its first hundred or so articles offer a broad view of the commercial relations in a developed agricultural society with a clear and strong central authority residing in its urban centre. The next (about) hundred provisions are mainly devoted to relationships within the family, which includes personnel 44

45

As mentioned above, I have used the German translation by H. Winckler, published in the same year as the editio princeps by V. Scheil, in Textes élamites-sémitiques, deuxième série; Mémoires de la Délégation en Perse, Vol. 4, Paris, 1902. The history leading up to the Code of Hammurabi, its genesis, socio-economic context and general tenor have been discussed in K.R. Veenhof, “Before Hammurabi of Babylon. Law and Laws in Early Mesopotamia”, Feldbrugge, Law’s Beginnings, 137159.

20


and slaves. The last third of the Code displays more similarity, as to the contents, with the early European laws. It deals mostly with homicide and all kinds of personal injuries. A major difference with the European laws, as already noted above, lies in the dominance of the retributive principle of “an eye for an eye”, as known from the Old Testament. Only less significant offences entail monetary sanctions, fines to be paid to the victim. A large number of offences are punishable by death, while capital punishment was absent or rare in early European law. The general conclusion has to be that the Babylonian legal system was very different from the early European systems mentioned above. Occasionally, however, curious parallels appear. When a person had been robbed and the identity of the robbers could not be established, the community inhabiting the locality where the robbery took place must make good the losses (art.23). This is very much like the situation discussed before in connection with the Old-Russian verv’, except that the latter concerned the composition in a case of homicide. Another example is article 9, the standard case for first-year law examinations: acquisition by and revindication from a third owner (possessor). If the latter’s ownership is in dispute, he has to produce his predecessor(s) in order to prove that the property was acquired in the correct manner. A quite similar procedure is described in the Russkaia Pravda (art.16 Short Pravda, art.38 Expanded Pravda; these provisions will also be discussed in the chapter on Roman law and early Russian law). In Babylon the first seller, if he had pocketed the price twice, was to be killed as a thief, a consequence not foreseen by Old-Russian law. The latter case suggests a marginal remark which may be relevant in comparing legal institutions from very different legal systems. The similarity between legal institutions may actually be caused, not by any kind of genetic connection, but by the simple fact that the underlying situations are similar.46 A similar legal solution may then be dictated by the situations themselves. If we find something belonging to us (either originally, or because it had been bought but not yet delivered to us) in the hands of a third person, it stands to reason that we demand that person to disclose to us the identity of the person who had sold or given it to him, and to repeat this procedure until we can finally confront the person who sold it to us (without delivering it) or who came to possess something we owned without our intention of making him the owner (e.g. through a loan, or by theft). Many legal systems, once they proceed to regulate such matters, will work out a solution like the one described. 46

For this reason I would not include debt slavery, common in Babylonian law and encountered in many early Indo-European systems (Greece, Rome, and among the Slavs), in the list of interesting parallels.


21

The Law of Bagrat Kuropalates The medieval law of Georgia is of special interest in the context of our investigation for two reasons: it reflects the legal system of a non-IndoEuropean people which retained its own character in a cultural and geographical context, not too different from medieval Europe, and Georgian law has been extraordinarily conservative through the ages (see the chapter on “Medieval Law in Transcaucasia”). The prevailing opinion about the author of the Law is that it was Bagrat I, who ruled Southern Georgia from 826-876, and who had been given the title of Kuropalates by the Byzantine emperor.47 His descendants later on became rulers and kings of Georgia, where the Bagratid dynasty lasted until the Georgian kingdoms were incorporated into the Russian empire at the beginning of the 19th century. The Law of Bagrat has survived in later medieval collections and was ultimately included in the law collection of king Vakhtang (Vaxtang in the official Georgian transliteration) VI, compiled between 1703 and 1709 (see the chapter on “Medieval Law in Transcaucasia”). It consists of 62 provisions, of which the first third part is devoted to rules protecting the church and its dignitaries. The reason for this is presumably that the church and all clerical personnel would lack the protection which lay people enjoyed, who could all fall back on their own family or clan. The remaining part of the law is generally similar to the Germanic and Slavic laws of the same period, in providing a catalogue of fines (fixed compensations) to be paid to the victims of offences (or their kin). Social stratification was also comparable to that prevailing among early European peoples: the ruler or king at the summit and the bishops at more or less the same level, then the grandees (didebuli), the ordinary noblemen (aznauri), and the common peasants (glexi). In the later middle ages, the system became more complicated. The compensation to be paid (called sisxli = blood) was dependent on the rank of the victim and on the seriousness of the offence.48 Full sisxli was due in case of homicide, a fraction thereof (usually half) in cases of injuries or insults. The sisxli is usually in amounts of 12 or multiples of 12, which again is very much like the Germanic and Slavic systems. This numerical similarity is even more striking in the case of certain oaths, to be sworn 47

48

A title usually reserved for members of the Byzantine imperial family. It had first been given to Bagrat’s father, Ashot Bagrationi, the founder of the dynasty, and was used by Bagrat’s successors as a secondary title once they had assumed the title of king (mepe, Russ. tsar’) of Kartlia. See M.D. Lordkipanidze & D.L. Mushkhelishvili (eds.), Ocherki istorii Gruzii. Tom II: Gruziia v IV-X vekakh, Tbilisi, 1988, 314-315.

The system even applied to the desecration of icons: the double amount for desecration of the icon of Christ (art.23).

22


with the aid of twelve or twenty-four helpers, a procedure well known in Germanic law (something similar also in the Short Pravda, art.15). With regard to the similarities with Germanic and Slavic models, direct borrowing one way or the other is practically excluded in view of the geopolitical circumstances of the period. Borrowing from neighbouring Indo-European peoples (or the other way around) in an earlier period is a matter of speculation. Another possibility would be to look for common roots in a more distant past. As next to nothing is known about the ethnic origins of the Georgians, this road leads nowhere for the time being. The phenomenon known as convergence could also offer an explanation for certain similarities. Without direct connections or genetic links, different legal systems could develop along similar paths, most likely on account of similar socio-economic conditions, and thus reach stages of development which at a given moment were quite similar. The use of the number ‘twelve’ is wide-spread, although by no means universal among different cultures. The Law of Bagrat does not refer to courts or professional judges. It simply states the fixed compensations to be paid for various types of behaviour injurious or harmful to others. The short preamble (art.1) sheds some light on the way justice was to be administered. It exhorts those who will sit in justice to act justly and fairly, and then adds that a person who knows the law or whom the king considers to be educated and experienced, or a well-to-do merchant, or a good family chief in the country, should act as a judge, “he will be sensible and will well understand the work of a judge, and will not say anything that is unjudicious”. The Great Statute of the Oirat Mongols of 1640 Mongol law is not as exotic as one might think in the framework of comparative legal history. Favoured by harsh geographical conditions, the Mongols have succeeded in maintaining their independence while surrounded by powerful cultures and empires: China and Japan in the East, and Russia and the whole of Europe in the West. For a while, they even achieved political and military superiority in the entire Eurasian area in the 12th and 13th century under Chingis-Khan and his successors.49 During the reign of Chingis-Khan, a short code was compiled, known as the Iasa of Chingis-Khan.50 It contained legal norms, along with moral 49

50

Cf. A.M. Khazanov, “The Early State Among the Eurasian Nomads”, H.J.M. Claessen & P. Skalník (eds.), The Study of the State, The Hague, 1981, 155-175.

This at least is the prevailing view nowadays. The two main commentators are V.A. Riasanovsky (Riazanovskii) and G.V. Vernadsky (Vernadskii). The first author published a long study in Russian (“Velikaia Iasa Chingiz-Khana”) in the émigré journal Izvestiia iuridicheskogo fakul’teta v Kharbine, Vol.10, 1933, and then a mono-


23

adhortations and ritual prescriptions. The text has not survived, but an extensive summary has been given by the Egyptian historian Makrizi, writing in the 15th century. Smaller excerpts in other sources confirm the reliability of Makrizi’s communications.51 The legal part of the Iasa consisted mainly of what we would consider as criminal law provisions, intended to maintain discipline in the vast and militarized empire, and ordaining the death penalty in most cases. In later centuries, the Mongol empire broke up in many parts and the central Mongolian part of it reverted more or less to the old order, or rather disorder, of strife and warfare between nomadic tribes of herdsmen. In the meantime, the Mongols had adopted a Tibetan form of Buddhism, which caused a complete transformation of Mongolian culture. The Great Statute of the Oirat Mongols was agreed upon in 1640 at a conference of all the important leaders of the Oirat and Khalkha Mongols (the Mongol population from Eastern and Southern Mongolia, under the sway of the Manchurian emperors, was not represented).52 The fairly extensive text (almost 200 articles) offers a detailed picture of the nomadic Mongol society of the period. Social stratification was quite outspoken: higher princes, lower princes, nobles, freemen of various levels, serfs and slaves. The Great Statute was preceded by, and was in part based on previous legislation of which significant parts have survived.53 From the point of view of legislative technique, the Great Statute is comparable to the early European codes; it is basically a long list of offences and misdemeanours and the penalties entailed. As in the early European codes, the penalties are usually not of a public nature, i.e. they were paid to the injured party. A peculiar feature of the Statute is, however, graph Fundamental Principles of Mongol Law, Tientsin (1st ed.), 1937, Bloomington/ The Hague (2nd ed.), 1965. Vernadsky also published in Russian and English: “The Scope and Content of Chingis-Khan’s Yasa”, Harvard Journal of Asiatic Studies, Vol.3, 1938, 337-360; Istoriia Rossii. Mongoly i Rus’, Moskva/Tver’, 1997, 106-115 (chapter on the Iasa) and the same in English in The Mongols and Russia (Vol.3 of M. Karpovich & G. Vernadsky, A History of Russia), New Haven, 1953, 99-110.

51

52

Vernadsky suggests that the unavailability of the Iasa may perhaps be explained by the sacred and magical character attributed to it, on account of which only very few people were allowed access to the actual text. Medieval Mongol sources from Russia refer to the Iasa; e.g. the charter (iarlyk) of khan Mengu-Timur of 1279 to the Russian metropolitan, PRP III, 467-468 (see, also, the chapter on treaties).

53

S.D. Dylykov (ed.), Ikh Tsaaz (“Velikoe Ulozhenie”). Pamiatnik mongol’skogo feodal’nogo prava XVII v., Moskva, 1981 (Mongolian text and Russian translation and commentary).

Cf. A.D. Nasilov, Vosemnadtsat’ stepnykh zakonov. Pamiatnik mongol’skogo prava XVI-XVII vv., S.Peterburg, 2002. This work also offers an overview of Mongolian, Russian, and Western scholarship on Mongolian law.

24


that it also deals with entirely lawful behaviour, where it then sets a fixed award. This may perhaps reflect the harshness of conditions in the steppe, where it was common to be in great danger and dependent on the help of a passer-by. Many provisions set awards for saving persons and animals, dealing with stray cattle, extinguishing fires, salvaging booty, etc. The existence of courts is mentioned only twice and in passing. It would agree with the general character of the Statute if there were no regular courts and the administration of justice would be one of the tasks of the appropriate leaders, from princes to village elders. The semi-military character of Mongol society is still very noticeable in the many provisions devoted to military discipline, behaviour in battle, treatment of equipment, etc. An obvious, but not entirely successful, effort has been made to present the material in a systematized manner; the statute consists of blocks of provisions on specific topics, but many items such as theft, insults, homicide, etc. are regulated in two or more places. The former severity of Mongol law has been replaced completely by a system of material compensation. In only one case (petty theft) is the cutting off of the thief ’s finger ordained, but the provision adds: “if he does not want to miss his finger, then he pays [so much].” The basic unit of compensation was the “nine”: four cows and five sheep, but in special cases the compensation could rise to one hundred cuirasses, one hundred camels and one thousand horses (e.g. a leading prince who failed to defend his territory against an invader; in this case the penalty would obviously come close to a genuine public fine, because the entire population had been victimized).

4. Law and State The relationship between law and state, both in an early form, is inevitably a central issue in all studies of early law. A reasonably sophisticated legal system may function in a still embryonic state (Ancient Ireland), the opposite may occur (certain early African states54), the emergence of the two may be more or less synchronous (early Germanic and Slavic states), the articulation of early law in the form of codification may actually be connected with the loss of statehood, or at least of political independence (the ancient Frisians and Saxons, absorbed by the Frankish empire, and, in a different setting, the fixation of the previously unwritten law of modern minority peoples). 54

Cf. H. Claessen, “Aspects of Law and Order in Early State Societies”, Feldbrugge, Law’s Beginnings, 161-179.


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If we use the term “state” in this section, it should be remembered that in most early states a king appears as the personification of the state. A very sizeable literature exists on the subject of early kingship, with obvious connections with the subject of the early state, but also with connections with ideology and religion. Some reference has been made to these questions in preceding sections on Indo-European patriarchy, kingship and chieftaincy. As with early law, the concept of emerging statehood may be considered to require some sort of definition. Much work on the “early state” has been done by Claessen and his colleagues.55 In the present context, the central question should be the clarification of the relationship between early law and the early state. A first observation could be that law and state are often used to define each other. One of the authors in the Claessen-Skalník volume on “The Study of the State”, Tamayo y Salmorán, reaches the conclusion:56 “We have considerable evidence that shows that the state is nothing other than a complex of legal acts, a set of legal rules sufficiently centralized and having the monopoly of the use of force. Now, if the state is only a specific legal system, the problem of how the state comes into being, how it functions, how it changes, turns into the problem of how legal rules come into being, how they function, and how they change.”

In this view, a state cannot exist without law and outside law. This is itself a debatable proposition. Both in the past and in modern times there have been ‘lawless’ states, or at least organizations which pretended to be states, acted as states and were treated as states by others. Such states did not rest on legitimizing rules, but on the acquisition and retention of paramount power; this power was exercised, not according to a system of rules and through the imposition of rules of behaviour, but through administrative commands. Although the USSR in the heyday of Stalinist terror still displayed some legal attributes of statehood (a constitution, codes of law, courts), it functioned predominantly through centrally issued and mostly secret bureaucratic instructions. On the other hand, modern law is usually (and, generally, satisfactorily) defined by reference to the state: law are those rules of behaviour which are issued by the state and backed and enforced by the power monopoly of the state. 55

56

Cf. H.J.M. Claessen & P. Skalník (eds.), The Early State, The Hague, 1978, and the work by the same authors, mentioned above (The Study of the State); H.J.M. Claessen & J.G. Oosten (eds.), Ideology and the Formation of Early States, Leiden, 1996.

R. Tamayo y Salmorán, “The State as a Problem of Jurisprudence”, Claessen-Skalník, The Study of the State, 387-407, at 504-406.

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This approach is, of course, unsuitable to deal with early law. It is often unclear whether we can speak of a state at this stage; if we assume the presence of law, it is often not enforced by a state or a state-like agency. Claessen and Skalník employ a definition of the early state of which the central core is: “the centralized socio-political organization for the regulation of social relations.”57 This definition is descriptive, in the sense that it was based on the study of a large number of early states and then attempted to summarize what these states had in common. It implies that the authors, in selecting their sample, had a preconceived idea of what constituted an “early state”. An interesting aspect was added by R. Cohen, who argued that the existence and effectiveness of anti-fission devices provided the decisive criterion for distinguishing between early states and early centralized societies.58 Surely, an early society that lacked coherence would most likely not transform itself into an early state, and an early state, the more it consolidated itself, showed that it possessed the instruments to sustain itself as an organization. But does the criterion do what it is supposed to do: help us to distinguish between states and non-states? Only afterwards, I am afraid, once a society has transformed itself into a state, or not, as the case may be, and we can establish a posteriori that it had or did not have the potential to maintain itself as a state. What one might discern behind this complicated definitional debate is a difference in approach to the question of definition in the social sciences and in jurisprudence. Laws are full of definitions—instruments, tools, to delimit, to demarcate, to define, the applicability of rules. If the law grants certain rights or imposes certain duties on e.g. policemen, parents, buyers, etc., one has to know exactly who is included in the category concerned and who is not. A definition which provides maximum precision is required. Much of the actual work of lawyers concerns the precise establishment of the limits, the fines, of such definitions. Such definitions are partly descriptive, in that they usually refer to and attempt to describe collections of entities that are known in a general fashion (such as policemen, parents, buyers). But they are also prescriptive, or, in 57

58

The Early State, 640. The full definition is: “the centralized socio-political organization for the regulation of social relations in a complex, stratified society divided into at least two basic strata, or emergent social classes—viz. the rulers and the ruled—, whose relations are characterized by political dominance of the former and tributary obligations of the latter, legitimized by a common ideology of which reciprocity is the basic principle.” This definition then played an important role in the following volume on “The Study of the State”, edited by the same authors.

R. Cohen, “Evolution, Fission, and the Early State”, Claessen & Skalník, The Study of the State, 87-115.


27

other words, they reflect political choices, because they contain explicit or implicit choices about including or excluding specific sub-collections. Do policemen include military policemen, do parents include adoptive and/or foster parents, does purchase/sale include the contract of barter? The prescriptive character of the definition derives from the authority of the agency which produced the definition (in a modern legal system: the legislator or the court). The definition may be regarded as politically undesirable, legally unfortunate, or socially ineffective by the community to whom it is addressed, but there can be no question of it being wrong, faulty or invalid (provided it has been expressed in the proper manner), that point being irrelevant. When we speak of early law, or rather an early legal system, or the early state, we do have a general idea of what is meant. We may then attempt to describe more precisely what we have in mind. The description may be more or less successful, i.e. it may succeed in expressing completely or adequately what we had in mind. But it is not prescriptive in the sense that it can decide for ourselves and a fortiori for others whether a legal system or a state is or is not ‘early’. Such a judgment could always be overridden, also by ourselves. In such a case, we would have to admit that that our definition was inadequate or ineffective. Since no authoritative definitions of early law or the early state can be given, all we can do is look for a more or less general consensus on various aspects of them. Then the problem becomes manageable. The fact that law and state (both with regard to their early manifestations and with regard to the present) usually participate in each other’s definition is not a logical handicap, but a pointer to the solution. If early law and the early state would be tied to prescriptive definitions (“this is what constitutes early law”, “this is what constitutes an early state”), then they would appear suddenly, the moment all the elements of the definition were present. We know in fact that they each emerge gradually, by a process of consolidation, of coalescence, of incremental change. In the beginning of this chapter, the question of the definition of law has been discussed and three phases in the genesis of law were proposed: — — —

the emergence of dispute settlement by a third party; further elaboration of this function; monopolization of rule creation, dispute settlement, and enforcement.

28


The third phase obviously requires the presence of something like a state. The emergence of the state occurs in similar fashion. The enlargement of the scale of social organization requires more formal arrangements, including clear relations of power and authority. At a certain stage, the patterns of relationships will acquire a degree of rigidity that produces reliable rights and duties. Law and the state arise in tandem; in more developed situations they will always be found together (barring exceptional circumstances); they contribute to each other’s definition; the more effective the legal system, the more successful the state. And conversely, a well-organized state will be in a better position to maintain an effective legal system. At the earliest stages of their development, however, law and the state may still be separate. Professionalization of dispute settlement with all it entails (judges, precedents, fixation of rules, etc.) will produce a law-like phenomenon, may in fact be called law, but it can occur also in the absence of clear state-like formations. On the other hand, there have been well-organized, stable and lasting (non-fissile in Cohen’s terminology) societies where law-like structures were almost absent or seriously underdeveloped. 5. The Origins of Legislation At the beginning of this chapter, a three-stage development of law was suggested. At the first stage, which might be called pre- or proto-legal, the most basic institutions on which any legal system rests are formed. Where human beings live together, differences of opinion, clashes of interests, will occur. If these cannot be settled by mutual agreement, resorting to violence will appear as the first option, as in the story of Cain and Abel (Genesis, Ch.4). For the group at large, but often also for the person who prevails, violence will in the end turn out to be an expensive solution. Other members of the group may, therefore, involve themselves in trying to avoid violence; a third party begins to participate in dispute settlement. This may be in the form of independent mediation, on the basis of persuasion, or in a more authoritative form, where the mediator uses not only persuasion but also his status and the authority and power deriving from it. All this is simple everyday stuff: schoolboys sorting out their differences among themselves, parents interfering when children are fighting. Claessen describes how agricultural societies first attempt to settle disputes between their members through negotiation and mediation; and then how adjudication by a third party develops in stages.


29

In this process, inevitably, some kind of regularity will assert itself. When certain disputes occur more frequently and are solved more or less satisfactorily, parties will be inclined to stick to the same mediators or arbitrators, and the latter will adhere to a certain manner of operation (a procedure), everybody involved in the dispute will refer to similar disputes in the past and to the way they were handled (the power of precedent). The capping-stone of this development is the acceptance of the solution of the dispute, arrived at in this way. This entire phase can be called pre- or proto-legal, because on the one hand it concerns situations and relationships which could only be regarded as legal by stretching the concept beyond its accepted usage, but on the other hand the emergence of law would not be possible without the institutions, values and attitudes developed at this stage. The actual emergence of law, in the shape of “early law”, can be observed at the next stage. Third party dispute settlement is then becoming professionalized, to a degree. Certain individuals are habitually involved and thereby build up professional skills. Precedents develop into rules, although that is not the whole story. Several authors have observed that the modern era of legislation (centrally issued written law) is not simply preceded by an era of custom and then customary law (based on precedent).59 At the stage of early law, as nowadays, new situations and problems arose which required new solutions. Inevitably therefore, anybody exercising a judicial function would occasionally be called upon to propose or impose such a solution which then, if it would be accepted, could acquire the power of precedent.60 This is also one of the central ideas of that classic description of early law, Llewellyn and Hoebel’s The Cheyenne Way.61 Unwritten law is, therefore, a more precise term; it may occur in the form of customary law or of “created”, judge-made law. The professionalization of dispute settlement, both by the utilization of precedent and the creation of new precedents, involves the articulation of law, its fixation in formulas. There are many and various manifestations of this phenomenon in early law. The Frisian asega, who was expected to 59

60

A classical example is referred to by E. van der Vliet, “Justice and Written Laws in the Formation of the Polis”, Feldbrugge, Law’s Beginnings, 23-43, at 29, and is described in Homer’s Iliad Σ 497-509: In a difficult dispute, the city elders had to decide; they sat together on the polished seats of honour, wearing judge’s staffs, and in their midst lay two talents of gold, to be given to the one who would give the best judgment.

61

See, for instance, the papers by Algra and Hoekema, quoted above, in Feldbrugge, Law’s Beginnings.

K. Llewellyn & A. Hoebel, The Cheyenne Way. Conflict and Case Law in Primitive Jurisprudence, Norman, OK, 1941.

30


know the law by heart; the extensive formulary of older Roman law, where certain sentences must be spoken in exactly the right words; the extraordinary similarity between a number of basic provisions in the Germanic leges barbarorum; also in the Russkaia Pravda there are traces of ancient fixed formulas. Before the law came to be written down, it had already been fixed in the minds of the professionals of the law. If the first stage of the development of early law can be called pre-legal, then the second stage can be called pre-legislative. The professionalization of the law is thus intimately connected with the articulation, the enunciation, of the legal rules, both old and new. Once this rule enunciation became a monopoly, the second stage of the development of early law attained its conclusion and the stage was set for the last phase. When the law can only be expressed authoritatively by certain persons or agencies, such as judges and courts, then the next step is to take this power and extend it to include also the power to create new rules without waiting for disputes to arise. Once such a power has asserted itself, the existence of the state cannot be doubted any longer. The older judicial monopoly, when only designated persons or agencies were considered to have the power to formulate the law, is then transferred to the state, which claims the exclusive power, the monopoly, to dictate new legal rules. This phase is concluded by the acquisition by the state of the monopoly to enforce the law. The period of early law, of the emergence of law, is over once this point has been reached. As can be expected, the later the stage of development, the more abundant the information about it. This is directly connected with the introduction of writing, in two ways. The availability of writing allowed a much more reliable and permanent fixation of texts. On the other hand, the perceived need to preserve information, including legal knowledge, for a longer period led to the invention of writing. Another aspect of writing is that it allowed knowledge to become de-personalized. Previously, law was the possession of persons who were trained in it, who had experience in the legal profession, whether specialized brahmins, Homeric gerontes, Irish brithemain or Frisian asegas. Once law was written down, it became accessible to anyone who could read, and control over the law passed from those who ‘possessed’ the knowledge of it to those who wrote it down or had the power to have it written down. Legislation, the purposeful creation of new rules, is therefore the most important corollary of writing in the sphere of law. There are, to be sure, indications that legislation was not unknown in oral cultures, alongside the prevalence of custom and


31

judge-made law, but it could only take off once its preservation was not bound any longer to the mnemonic capacity of individuals. In modern times, legislation is the monopoly of the state, in its various emanations (central and subordinate local and specialized agencies). The manner of creating and recording legislation is itself regulated by law. Lawyers will argue about the exact meaning of the words of the law, but not, as a rule, whether a certain text deserves to be regarded as law. One of the fascinating aspects of early law is that it requires answers to questions which need not be asked anymore in a modern legal system. Discussing ancient legal texts, one first has to address the question: What does this text represent? The authentic texts of early legislation have rarely come down to us. They have been copied again and again and in the course of time variant versions have emerged. A careful comparison of what is available should then lead to a text which would be as close as possible to the original. But uncertainty about the text also occurs along another axis. Even if we would have an authentic text, it still would not always be clear who was the author. An ostensibly legislative text (a more or less systematic enumeration of legal rules) could be (but rarely is) the official recording of a genuine act of legislation (e.g. the stele of Hammurabi), comparable to the publication of a law adopted by a modern parliament in its official gazette; or it could be a semi-official directive to courts, or a private registration of an official act, or the official fixation in writing of customary law, or a private registration of what the author considered to be the law, or a scholarly systematization of various pieces of legislation, and so on. The background of all this is that in the early legislative period there was still some confusion about the scope of legislation and the manner of recording it. The main lines of development appear to be that at a certain stage the judicial function—enunciation of the law—, the emergence of central authority—the state—, and the introduction of writing came together. The law, hitherto the exclusive possession of knowledgeable individuals, was caused to be written down by the newly emerging central power. The realization that writing down the law as it stood could easily be extended to writing down the law as the ruler would like it to be, was then the next step. This process is observable in some detail in the subsequent phases of the oldest Russian law, the Russkaia Pravda (see the chapter on this topic). Once this step had been made, the relatively passive registration of customary law soon disappeared and was replaced by purposeful legislation as an instrument of government policy. The decisive factor, the catalyst which ushered in the era of genuine legislation, was usually the occurrence of social friction requiring major

32


adaptations of the traditional (mainly oral and customary) order. Ancient Greek legislation first appeared in the new colonies.62 The Frisian law, and some of the other of the Germanic leges barbarorum were issued soon after the imposition of Frankish overlordship. Several phases of the Russkaia Pravda can be connected with major social and political upheavals in Kievan Russia. For a much earlier era, Zimmer has noted the emergence of law as connected with the mixing of socio-ethnic groups.63 This illustrates an aspect of early law which has been left underexposed until now: its contractual character. Many of the important monuments of early law were also the result of negotiated settlements. One of the two main versions of the Law of the Salic Franks bears the name of Pactus Legis Salicae. Occasionally, the texts inform us about the circumstances surrounding the adoption of an ancient law and then it is often that the ruler, together with members of the elite and (representatives) of the populace had reached agreement about it beforehand. This thought returns us to Maine, with whom we started this chapter; at the end of his central chapter V (“Primitive Society and Ancient Law”) of his Ancient Law, he summarizes his findings as “from Status to Contract”.

62 63

Cf. Van der Vliet, op.cit.

Cf. Zimmer, op.cit.

Chapter 2 The Russkaia Pravda 1. Introduction By far the most important monument of early Russian law is the Russkaia Pravda (the “Russian Law”, hereafter RP). More than two centuries of scholarship have resulted in a vast body of studies and commentaries. The purpose of this chapter is not so much to add to this, as to look at the RP from a specifically legal perspective, involving such aspects as legal theory, legal history and anthropology. The underlying idea, as elaborated in the chapter on “Law’s Beginnings and Early Law”, is that law, as we know it, has not existed since time immemorial, but emerged at a certain stage of societal development. Its origins, like those of history, are closely connected with the appearance of writing. That there could not have been history or law before there was writing is an untenable proposition, in view of the ample availability of documentation about oral cultures. The invention of writing, however, did improve and alter the possibilities of communication between human beings from different times and places to such an extent that the world became a different place from that moment on. The study of the earliest written legal sources of any society is therefore of particular interest from the legal point of view, because it allows us to witness the birth of a number of institutions, practices and techniques which together constitute the world of modern law. But although the process of writing inaugurated a new phase in the development of the law, the new elements were not created ex nihilo; something preceded them, they were invented or rather cobbled together on the basis of existing institutions, practices and techniques. The latter may be hard to identify, on account of the paucity of available information, but the effort is worth its while, even if it has to involve a certain amount of speculation.

2. General Remarks After the RP lost its practical importance, it fell into oblivion and remained unknown for centuries until in 1738 the grandfather of Russian historiography, V.N. Tatishchev, discovered a copy of it in the First Novgorod Chronicle. Subsequently many more copies were found, most of them in manuscript collections of ecclesiastical and secular laws and prescriptions, known as kormchie (lit. “steering-books”, Greek Nomocanon), copied and kept in Russian monasteries (see the chapter on “Roman Law in Medieval

34


Russia”).1 The standard edition by the USSR Academy of Sciences from the middle of the last century made use of 88 different copies, but at that time more than 100 copies were already extant.2 A considerable number of new copies has emerged afterwards.3 As soon as more copies of the RP had become available, it became obvious that there were at least two basic versions, a shorter one, numbering about 850 words, and a longer one about four times as long. These versions are known, respectively, as the Short and the Expanded Pravda.4 The two versions are intimately related, not only because in most manuscripts they go under the name of Russkaia Pravda, but, more importantly, because virtually all provisions from the Short Pravda reappear, although in sometimes slightly different wording, in the Expanded Pravda. The general consensus is that the Short Pravda is older than the Expanded Pravda, but we shall have to return to this question at greater length below. 1

2

Extensive accounts of the historiography of the RP in M.N. Tikhomirov, Issledovanie o Russkoi Pravde. Proiskhozhdenie tekstov, Moskva/Leningrad, 1941 (hereafter: Tikhomirov, Issledovanie), ch.2; A.A. Zimin, Pravda Russkaia, Moskva, 1999 (hereafter: Zimin, PR; this work was published on the basis of a manuscript completed shortly before the author’s death in 1980), 11-30; G. Baranowski, Die Russkaja Pravda–ein mittelalterliches Rechtsdenkmal. Rechtshistorische Reihe, Band 321, Frankfurt a/M., 2005 (hereafter: Baranowski), 44-157. Shorter accounts in G. Vernadsky, Medieval Russian Laws, New Haven, 1947 (hereafter: Vernadsky, Medieval Russian Laws), 12-14; M.N. Tikhomirov, Posobie dlia izucheniia Russkoi Pravdy, Moskva, 1953 (hereafter: Tikhomirov, Posobie), 9-15; D.H. Kaiser, The Growth of the Law in Medieval Russia, Princeton, 1980 (hereafter: Kaiser, Growth), 29-37.

3

B.D. Grekov (ed.), Pravda Russkaia, Part I: Teksty, Moskva/Leningrad, 1940; Part II: Kommentarii, Moskva/Leningrad, 1947; Part III: Faksimil’noe vosproizvedenie tekstov, Moskva, 1963 (hereafter: Grekov, PR I, II, III). English translation in D.H. Kaiser (transl. & ed.), The Laws of Rus’–Tenth to Fifteenth Centuries, Salt Lake City, 1992 (hereafter: Kaiser, Laws), 14-40; Vernadsky, Medieval Russian Laws, 25-56. German translation in Baranowski, 13-43 (there are also 19th century German translations by I.Ph.G. Ewers, Das älteste Recht der Russen in seiner geschichtlichen Entwickelung, Dorpat/ Hamburg, 1826, and E.S. Tobien, Sammlung kritisch bearbeiteten Quellen der Geschichte des russischen Rechts, Band 1. Die Prawda Russkaja und die ältesten Tractate Russlands, Dorpat, 1844). French translation in M. Szeftel & A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963 (hereafter: Szeftel & Eck), 21-116.

See, especially, Ia.N. Shchapov, “Novoe o spiskakh Russkoi Pravdy”, Istoricheskii Arkhiv, 1959, No.4, 209-211; id., “Novye spiski kormchikh knig, soderzhashchie Russkuiu Pravdu”, Istoriia SSSR, 1964, No.2, 100-103; id., “Russkaia Pravda v novykh spiskakh kormchikh knig XVI-XVII vv.”, Arkheograficheskii Ezhegodnik za 1969 god, Moskva, 1971, 70-72. The new additions to the already large collection of manuscripts have not given rise to fundamentally new insights.

4

There is also a third version, numbering about 1100 words, known as the Abridged (Sokrashchennaia) Pravda. It is generally regarded as a later abridgment of the Expanded Pravda and of no direct interest for the present topic.

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3. The Short Pravda After article 185 of the Short Pravda there is a line which reads as a preamble: “The law established for the Russian land, when Iziaslav, Vsevolod, Sviatoslav, Kosniachko, Pereneg, Mikyfor the Kievan, Chudin [and] Mikula met together.” The first three persons were the sons and successors of the Kievan grand prince Iaroslav the Wise (Iaroslav Vladimirovich, who ruled in Kiev from 1019 to 1054). This preamble is repeated in article 2 of the Expanded Pravda in a different and more precise wording: “After Iaroslav [had died], his sons Iziaslav, Sviatoslav, Vsevolod, and their men: Kosniachko, Pereneg, and Nikifor came together again [and decided certain things] and as to everything else, decided by Iaroslav, his sons established the same.” Most copies of the Expanded Pravda carry the heading: “The Law of Iaroslav Vladimirovich.” It is primarily on the basis of these texts that it is generally recognized that the Short Pravda consists of two main parts: the first 18 articles, regarded as a law connected with the Kievan grand prince Iaroslav the Wise, and a following section, connected with his sons. These parts are usually referred to as Iaroslav’s Pravda or the Oldest Pravda (Drevneishaia Pravda) and the Pravda of Iaroslav’s Sons (Pravda Iaroslavichei). Moreover, at the end of the Short Pravda, there are two provisions with their own headings, which appear to be unconnected with the immediately preceding text of the Pravda of Iaroslav’s Sons: the law on the payment of bloodwite (vira): the pokon virnyi (art.42), and the bridgebuilders’ statute (urok mostnikov), identified as “a law of Iaroslav” (to ti urok iaroslavl’), art.43. More speculatively, one may discern different chronological layers in the Oldest Pravda, the Pravda of Iaroslav. The first ten articles are very similar in scope and terminology; they are all concerned with the payment of wergeld for homicide and other personal injuries; article 11 seems to belong to the same layer.6 Articles 12-18 deal with a greater variety of cases concerning property claims—runaway slaves and loss of possession by the owner being the two central themes. 5

6

The manuscript texts of the RP do not use article numbers; in some manuscripts new provisions are started on a new line and/or with a capital letter in red ink. The division in numbered articles is something introduced by editors for easy reference. It may be obvious that an unfortunate placing of numbers may distort the context. The system introduced by the Academy of Sciences edition is generally followed nowadays, but older studies (such as those by Kalachov or Sergeevich) often use different systems. Art.11 does not deal with personal injuries but with the runaway slave. The reference to Varangians and Kolbiags, however, connects it with art.1. Also, art.16 is devoted to the same topic, which would argue in favour of the viewpoint that the two provisions originally belonged to separate complexes. See Tikhomirov, Issledovanie, 61.

36


In the second part, the Pravda of Iaroslav’s Sons, the first block of provisions (arts.19-29) may very well be viewed as an addition or amendment to the wergeld provisions of the first part; articles 19-29 deal with special and increased fines for killing or injuring the prince’s officials. Article 30 stands somewhat isolated,7 but the next series of provisions (arts.31-40) continues the focus on the prince’s interests, with the accent now on his property interests. As what appears to represent a short law code of princely domanial law, the Pravda of Iaroslav’s Sons has therefore repeatedly been compared with Charlemagne’s Capitulare de Villis (dating from shortly after 800). Article 41 concerns the distribution of the money collected in fines and articles 42 and 43 have been mentioned above.

4. The Chronological Framework of the Short Pravda It is abundantly clear from the above that the Short Pravda consists of different chronological layers which have been combined into a single document at a certain moment. The first step in achieving a more detailed understanding of this process is a more precise determination of the emergence of the oldest part of the document, the Oldest Pravda or Pravda of Iaroslav. Two medieval chronicles are of decisive importance in this respect, the Primary Chronicle and the First Novgorod Chronicle. These chronicles relate how Iaroslav, in accordance with the prevailing practice (see the chapter on “The Elder Brother in Russia”) among the descendants of Rurik, the legendary founder of the dynasty, had been appointed by his father St.Vladimir, grand prince of Kiev, to rule in Novgorod (Novgorod the Great, south-west of the present St.Petersburg). One of Iaroslav’s duties was the payment of an annual tribute of 2000 pounds (grivny) to Kiev.8 When Iaroslav, most likely at the insistence of the Novgorod population, decided to cease the payment of this sum, probably around 1013 or 1014, his father summoned his troops and began to prepare an attack on Novgorod. Iaroslav thereupon reinforced his army, especially by 7

8

In substance, it concerns evidence: open wounds and bruises need no further corroboration by witnesses, but at the same time this rule repeats the first part of art.2 of the Short Pravda, i.e. an older provision, from Iaroslav’s Pravda.

An extensive and recent explanation of the Old-Russian monetary system by A.V. Nazarenko, “Proiskhozhdenie drevnerusskogo denezhno-vesovogo scheta”, A.P. Novosel’tsev (ed.), Drevneishie gosudarstva Vostochnoi Evropy 1994 god. Novoe v numizmatike, Moskva, 1996, 5-79. See, also, M.B. Sverdlov, “Istochniki dlia izucheniia russkogo denezhnogo obrashcheniia v XII-XIII vv.”, Vspomogatel’nye istoricheskie distsipliny, Tom IX, Leningrad, 1978, 3-16; S.N. Kisterev, “Spornye voprosy nachal’noi istorii russkogo denezhnogo obrashcheniia”, S.N. Kisterev (ed.), Ocherki feodal’noi Rossii, 1, Moskva, 1997, 197-220.

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37

recruiting Varangian forces from Scandinavia. These Varangians (Vikings), in keeping with their reputation for violence and unruliness, created much unrest among the Novgorod population, and this culminated in riots in which many Varangians were killed. Iaroslav reacted by having a number of prominent Novgorod citizens treacherously murdered. At that moment, in 1016, he received news of the death of his father Vladimir in Kiev and the usurpation of the Kievan throne by his brother Sviatopolk, who lost no time in eliminating two other brothers, Boris and Gleb (subsequently to become two of the most popular Russian saints). In the face of this threat, Iaroslav was forced to make peace with his Novgorod subjects. He then marched with an army of Varangians and Novgorodians against Sviatopolk, overcame the latter on the banks of the Dniepr near Liubech, and ascended the throne of Kiev. Up to this point the two chronicles run closely parallel. The so-called Younger version (Mladshii Izvod) of the Novgorod Chronicle then continues by relating how Iaroslav rewarded his troops: “[…] and he began to distribute pay to his troops, to the captains ten grivny each, and to the [common] soldiers one grivna each, and to all the men of Novgorod ten grivny each, and he dismissed them all to their homes; and he gave them a code [pravda] and wrote down a law [ustav], saying to them: Live according to this charter [gramota], as I have written it for you, and observe it.”

These words are followed immediately by the text of the Short Pravda. The Primary Chronicle makes no mention of a law code granted by Iaroslav, but instead goes into greater detail about the following campaign against Sviatopolk. If the story from the Novgorod Chronicle is to be believed, it can of course refer only to the first part of the Short Pravda (i.e. Iaroslav’s Pravda), although the text given by the Chronicle also includes the Pravda of Iaroslav’s Sons (who were not even born at that time). The debate around this question has been going on for a long time; most pre-revolutionary and Soviet, and indeed also modern scholars are inclined to give credence to the story of the Novgorod Chronicle, at least in the general sense that the origin of the Oldest Pravda was connected with the events in Novgorod as related in the Novgorod Chronicle.9 The fact that the RP text was at some later moment appended to the Novgorod Chronicle for some local political reason does not really undermine the essential truthfulness of the story. Locating the emergence of the Oldest Pravda in 1016 and connecting 9

Among more recent authors connecting the origin of the Oldest Pravda with events in Novgorod in 1016 are: Zimin, PR, 98; Kaiser, Laws, xvii; Baranowski, 148. The proposition is rejected by I.Ia. Froianov, Drevniaia Rus’, Moskva, 1995, 97-112. The older phase of the debate is related by Tikhomirov, Issledovanie, ch.6 and also by Zimin, PR, 89-98. See, also, the discussions reviewed in PRP I, 74-75 and RZ I, 35.

38


it with Iaroslav’s political difficulties in his relationship with Novgorod and his own followers (his druzhina) are not only consistent with the text of the RP, but are also helpful in explaining a number of peculiarities of it. Alternative interpretations (e.g. the Oldest Pravda would have emerged at some other date, and has no particular connection with Novgorod, but rather with Kiev) lack these advantages of what must be considered the predominant view. All this applies only to the first ten or eleven articles of the Oldest Pravda in my view; the following provisions (arts.12-18) seem to represent another legislative fragment. I follow Tikhomirov in this respect.10 We must return to this question in more detail when the origins of the RP are examined.

5. The Short Pravda: Composition and Status The Short Pravda, as argued above, consists of two main parts, the Oldest Pravda or Pravda of Iaroslav, and the Pravda of Iaroslav’s Sons, plus a few minor enactments. More speculatively, both parts may be broken up in two parts each, all of them representing specific items of princely legislation.11 Eventually this entire legislative mass was united into a single document, which has come down to us through monastic manuscripts as the Short Pravda. Very little is known about the actual process of compilation. Most authors agree that it was the work of monastic scribes.12 Whether they were acting under instructions from the prince’s administration, or independently, or in some intermediate position, is unclear. There are definite traces of editorial interference in the production of the final compilation known as the Short Pravda. As to the date of this compilation, various solutions have been proposed, as early as 1054 and as late as 1136.13 The principal conclusions to be drawn are that the Short Pravda as a whole, unlike its constituent parts, is not an actual piece of legislation and that the legislative portions it contains have not necessarily been transmitted in their original form.

10 11

Tikhomirov, Issledovanie, 61.

12

The proposed subdivisions of the Pravda of Iaroslav’s Sons are of little relevance in this chapter; I refer to Tikhomirov, Issledovanie, 62-70 and Zimin, PR, 99-123.

Cf. Tikhomirov, Issledovanie, 74-78; Zimin, PR, 133-150.

Cf. Zimin, PR, 133-150.

13

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39

6. The Expanded Pravda The Expanded Pravda is of less interest to the specific focus of this chapter and a brief overview will be sufficient.14 A great many copies are extant and this has made the problem of their classification prominent. The oldest copy, dated by the copyist himself, is from 1282. The Expanded Pravda appears to consist of two main parts, entitled in the text “The Law of Iaroslav Vladimirovich” and “The Statute of Vladimir Vsevolodovich”. There is no doubt about the identity of these two princes, the first one is Iaroslav the Wise whom we met before as the legislator of the first part of the Short Pravda, and the second one is his grandson Vladimir Monomakh (so named after his mother, who was a Byzantine princess of the Monomachus family), who ruled as grand prince of Kiev from 1113 to 1125. A closer examination of the text shows that the Expanded Pravda is by no means a simple conjunction of the Short Pravda and a later law by another Kievan prince. The Short Pravda has been incorporated almost entirely into the Expanded Pravda, but not in a single block. Its provisions, edited but still recognizable, are found scattered through the entire text of the Expanded Pravda, also in the Statute of Monomakh. Moreover, most commentators agree that only a small portion of the latter part of the Expanded Pravda represents a specific law promulgated by Vladimir Monomakh at the beginning of his reign. To cut the story short, the Expanded Pravda was probably compiled at some time in the 12th century (after the death of Vladimir Monomakh in 1125) on the basis of the Short Pravda, the original statute of Vladimir Monomakh of 1113, and other Kievan princely legislation, all of these having been subject to considerable editorial reworking. As to its status, the safest course may be to follow Tikhomirov who suggested that its compilation was officially inspired in order to be used as a practical work of reference in the courts, but that it was not enacted as a separate piece of legislation.15

7. Other Contemporary Sources The Treaties of 912 and 945 The Primary Chronicle contains, under the years 907, 912, 945 and 971, what purport to be the texts of treaties between the Kievan grand prince and the Byzantine emperor. These treaties have given rise to a very ex14

15

I refer generally to Tikhomirov, Issledovanie, chapters 10-20 and Zimin, PR, 153278.

Tikhomirov, Issledovanie, 225.

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tensive literature, but in the context of this chapter only the treaties of 912 and 945 are of interest.16 The treaty of 912, according to its preamble was concluded between the emperors Leo, Alexander and Constantine17 on the one hand and “Oleg, grand prince of Russia, and all the serene and grand princes and great boyars under his sway” on the other. It contained fairly detailed rules about a number of subjects which we would regard as belonging to civil, commercial and criminal law, in which both Russians and Greeks were involved: homicide, assault and theft, damages for torts, inheritance and succession, redemption of prisoners, runaway slaves, etc. Some of the legal arrangements obviously reflect Russian usages and in one case (assault) this is stated explicitly: “he shall, according to Russian custom [po zakonu russkomu], pay five pounds of silver.” The treaty of 945 follows the general format of the treaty 912 (the latter clearly not being the first of its kind either); the parties mentioned are the emperors Romanus, Constantine and Stephen18 and the Russian grand prince Igor “and his princes and boyars and the whole people of Russia”. The topics covered are similar to those mentioned in the 912 treaty, but generally less favourable to the Russians. There are several explicit references to Russian custom (po zakonu russkomu).19 Both treaties give the names of the envoys of the Kievan prince; in the 912 treaty all the envoys bear Scandinavian names; in the 945 treaty a large number of names is given as “the envoys and merchants of the Russian nation”. The list also indicates the persons represented by the 25 16

17

See, especially, A.N. Sakharov, Diplomatiia Drevnei Rusi–pervaia polovina X v., Moskva, 1980, with extensive bibliography. Also PRP I, 3-70 (text, modern Russian translation, commentary); I. Sorlin, “Les traités de Byzance avec la Russie au Xe siècle”, Cahiers du monde russe et soviétique, II (1961), 313-360 and 447-475; Kaiser, Laws, 1-13 (English translation).

18

The iconoclast emperor Leo the Wise and his co-emperors, his brother Alexander and his son Constantine Porphyrogenitus.

Romanus Lecapenus and sons as co-emperors.

In arts.3, 6, 9 and 14 (according to the accepted numeration); art.6 has the formula “according to Greek custom and Russian law and custom” (po zakonu Grech’skomu, po usta[v]ou i po zakonu Ruskomu, in the Laurentian manuscript); two other mss. (Radziwill and Academy) have “according to Greek custom and Greek law, and Russian custom” (po zakonu gretskomu i po ustavu gretskomu i po zakonu russkomu). The latter reading seems to be correct from the point of view of legal history, because it would be far-fetched to assume that the matter was regulated by (statute) law among the still largely illiterate Russians, while the sophisticated Byzantine empire would have left it to custom. Also, the other places mentioned all refer to Russian custom (zakon russkii) only. Cf. PSRL, Vol.1, 49-50; Sakharov, Diplomatiia, 245, and Zimin, in PRP I, 45-46, implicitly accepting the correctness of the formula from the Laurentian ms., regard the reference as an indication of very early Russian legislation.

19

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41

envoys, and then the names of the 25 merchants follow. The overwhelming majority of these 50 persons bear Scandinavian names again. The “Russian custom” of these two treaties may therefore very well have been the custom of the Viking warriors who constituted the immediate entourage (the druzhina) of the Kievan princes. The Treaty of 1229 between Smolensk and Riga The date of this treaty can be established exactly because the text indicates that it was concluded between prince Mstislav Davidovich (of Smolensk) and the city of Riga, in the year bishop Albrecht (Albert of Adalbert, the first bishop of Riga) died. The contents of the treaty are in many ways close to the Expanded Pravda, and 1229 is therefore the certain terminus ante quem of the latter. The Smolensk-Riga treaty provides a short law code for disputes arising between Smolensk citizens and the Hanseatic merchants living in Riga and Visby (see, also, the chapter on the Skra of Novgorod). It offers the earliest link between the RP and later Russian legislation, especially the important Court Charter of Pskov of the second half of the 15th century.20

8. The Contents of the Short Pravda: Wergeld and Composition The oldest layer of the Short Pravda (the first eleven provisions in the view put forward above) is about the most ancient legislative enactment in Russia that we know of. One cannot exclude that certain written ordinances preceded the Oldest Pravda. The Primary Chronicle relates how the ruling grand princess of Kiev, Igor’s widow Olga, travelled through the land of the Derevlians in 946, establishing laws (ustavy) and tribute (uroki). Ustav, in the language of Kievan Russia, refers to what has been ordered from above, as opposed to zakon or pokon, referring to tradition and custom. An ustav, in later times, would always be in writing and would then have the meaning which it still has: a statute or charter. It is, however, more likely that at that early date Olga’s ustavy were simply oral directives. The existence of Russian customary law is well documented in the treaties with Byzantium of 912 and 945, which were briefly discussed above. There is, apart from an apparent scribe’s mistake (as explained above), no indication of any written Russian law in these treaties, nor in the text of the last-known Russian-Byzantine treaty of 971, where the Russian side swears by its gods Volos and Perun. Moreover, the RP, including its most ancient parts, continued to exercise its influence over the development of the entire Russian legal 20

Text in PRP II, 57-71, commentary by A.A. Zimin, 75-87; also in RZ 331-243.

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system during the next few centuries, without any visible competition from older or contemporary Russian legislation. The significance of the legislation of 1016 may best be illustrated by examining its first provision, which deals with homicide. “If a man kills a[nother] man, [the following relatives of the murdered man avenge him], the brother avenges the brother, or the son the father, or the father the son, or the son of the brother or the son of the sister [avenge their respective uncles]; if there is no one to avenge [the murdered man], then 40 grivna wergeld; be [the murdered man] a Russian: a bodyguard [gridin], a merchant, a steward [iabetnik], or a sheriff [mechnik], or [rather] an izgoi or a [Novgorodian] Slav, his wergeld is 40 grivna .”21

All translations make clear that one of the central points of the provision is the distinction made between two categories of homicide victims and the explicit indication that they are to be treated equally where the payment of wergeld is concerned. The first category is called “Russians” and this is often taken to mean “Kievan Russians” as opposed to people from Novgorod. In the treaties with Byzantium, however, the term “Russians” is also used and there it unquestionably refers to the persons accompanying the prince, who were, with rare exceptions, ethnic Scandinavians, Varangians, Vikings, members of the prince’s druzhina. The four specified sub-categories of the “Russians” in article 1 of the Short Pravda are all druzhina members, according to most scholars. The gridin is a junior member, a bodyguard; about the iabetnik there is much uncertainty, but it is at least clear that he is a man who belongs to the prince’s household; the mechnik (lit. sword-man) is generally taken to be a person connected with the administration of justice; the merchant can be seen as somebody who is active in representing the commercial interests of the prince. It must be stressed that at the time it would be too early to speak of a genuine princely administration; the prince’s retinue, his druzhina, originally his comrades-in-arms and drinking companions, is not yet his court or his government.22 The “non-Russians” (slovenin) envisaged in article 1 are the Novgorodians, which makes perfect sense in the perspective adopted here, and the izgoi; the exact meaning of this term is the subject of endless speculation, but one thing that is certain is that the term refers to persons who for one reason or another had ended up outside the traditional relationships of family, clan or class. The equal treatment principle, regardless of the origin or ethnicity of the victim, was itself not an innovation. It was also included in the 912 21 22

My translation differs on minor points from those of Vernadsky and Kaiser.

This aspect is elaborated in a recent study by S.L. Nikol’skii, “O druzhinnom prave v epokhu stanovleniia gosudarstvennosti na Rusi”, A.A. Gorskii (ed.), Srednevekovaia Rus’, Vyp.4, Moskva, 2004, 5-48, at 26-28.

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and 945 treaties with Byzantium, which explicitly stipulated that in cases of homicide the same rules would apply to Greeks and Russians. Blood vengeance by relatives (blizhnye) as the basic sanction in the case of homicide, with the alternative of a substituting financial compensation, was also the system followed in the foregoing centuries, as shown by the treaties of 912 and 945. The innovation of the Pravda of Iaroslav was that it restricted the right of blood vengeance to male relatives up to the third degree.23 If none of these are available, the 40 grivna wergeld becomes the only sanction. It should go without saying that the wergeld was paid to the family of the victim; this is quite clear in the treaties, and also from the following provisions of the Short Pravda, which mention several times explicitly that the compensation for injuries goes to the victim. The opposite view has been defended by some Russian and Soviet historians, who held that the sums mentioned were payable to the prince.24 It would be correct to say that the Pravda of Iaroslav was by and large a confirmation of the existing legal order, based on custom, with a minor adjustment to tip the balance in favour of wergeld at the expense of blood vengeance—an entirely understandable innovation in view of the dangers posed by inter-ethnic violence. The second half of the Short Pravda, the Pravda of Iaroslav’s Sons, especially articles 10-27, heralded a new and more active approach to legislation. The general system for dealing with homicide as described in article 1 is not mentioned and presumably left in place, but a special regime is introduced to deal with the killing of various officials and servants of the prince: the stewards of his domain (ognishchane), his messengers (pod”ezdnye), sheriffs (tivuny), assistant sheriffs (tivuntsy), the stable master (koniukh staryi), farm managers (sel’skie starosty), contract labourers (riadovnitsy), field overseers (ratainie), peasants (smerdy), slave herdsmen (kholopy), and slave turors and nurses (kormilitsy and kormilichitsy). The killing of any of these persons leads to the imposition of a fine, ranging from 80 grivna (i.e. twice the amount of the wergeld of a free man) for the most important 23

24

Tikhomirov, Issledovanie, 75 and A.A. Zimin in PRP I, 86, suggest that female relatives of the same degree are also included. The question was examined in more detail by S.L. Nikol’skii, “O kharaktere uchastiia zhenshchin v krovnoi mesti”, Drevneishie gosudarstva Vostochnoi Evropy 1999, Moskva, 2001, 160-168, who reached the conclusion that women as victims were equally protected by the blood feud, that women were not prevented from participating in blood feuds (princess Olga being a famous example), and that the exercise of blood feuds against women was considered as reprehensible.

Notably S.V. Iushkov, who reasoned that Kievan Russia, being a ‘feudal’ state, had regular legislative institutions and a formalized court system, and therefore legally imposed penalties would end up in the coffers of the prince.

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servants to 5 grivna for the smerdy and kholopy. The name of this fine is vira (bloodwite) and it is to be paid to the prince; this is obvious from the following provisions and from the entire context. The rule concerning the stable master (koniukh staryi) is of special interest, because it throws light on the development of the legislative process: “And for the senior stable master [who is murdered] while [he is] with the herds [pay] 80 grivna, as Iziaslav [1054-78] established when the residents of Dorogobuzh killed his stablemaster” (art.23, Kaiser’s translation). The 80 grivna fine for killing the stable master returns in article 12 of the Expanded Pravda, but then the reference to its origin is omitted. The further evolution of the law of homicide is illustrated by the reworking of the basic provisions of article 1 of the Short Pravda and the preamble to the Pravda of Iaroslav’s Sons in articles 1 and 2 of the Expanded Pravda: “[1] If a man kills a man, then a brother avenges his brother, or a father [his son], or a son [his father], or a cousin [=a son of the father’s brother][his cousin], or a brother’s sons [their uncle]; if there is no one to avenge [the murdered man], then the wergeld is set at 80 grivna in the case [the murdered man was] the prince’s man or the prince’s sheriff [tiun]; if he was a Russian–a bodyguard [grid’], or a merchant, or a boyar’s sheriff [tiun], or a sheriff [mechnik]–or [rather] an izgoi or a [Novgorodian] Slav, then the wergeld is set at 40 grivna .” “[2] And after Iaroslav his sons: Iziaslav, Sviatoslav, Vsevolod, and their men: Kosniachko, Pereneg, and Nikifor came together again and abolished blood revenge but [instead ordered] composition by payment of money; and as to everything else, decided by Iaroslav, his sons established the same.”

There are many uncertainties in translating these texts,25 but the contrast between the two provisions catches the eye, because article 2 cancels what has been established in article 1: blood revenge by close kin. It is to be explained by the complicated genesis of the text. The three-stage development of the law of homicide is clear: first, blood vengeance with the possibility of substituting payment of wergeld for revenge, all this being the customary law arrangement of the pre-Christian era; secondly, restriction of the right to blood vengeance to a circle of close relatives, 25

One of the most contested phrases is liubo bratochado, li bratniu synovi. I have followed those authors who regard bratochado (lit. brother’s son) as referring to a cousin in the male line (a son of one’s father’s brother) and bratniu synovi as nephews (son’s of one’s brother). This would mean that the inclusion of sons of sisters among the circle of possible avengers, as provided by the Short Pravda, had been deleted in the Expanded Pravda. See the extensive discussion in Baranowski, 336-338, who reached the same conclusion. The translations of the names of the various officials can also only be regarded as tentative.

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in the earliest phase of written law; thirdly, abolition of blood vengeance altogether. The appearance of princely servants in the Pravda of Iaroslav’s Sons also heralded the disappearance of the wergeld. The various texts of the RP do not indicate, as a rule, to whom the amounts of money connected with various offences were to be paid. In the otherwise very extensive literature on the RP this aspect is usually given little attention. The wergeld, replacing blood vengeance, was paid to the relatives of the victim; both versions of the RP use the term za golovu (“for the head”) and the Expanded Pravda also has golovnichestvo (“head money”) as the equivalent of wergeld. The payments for lesser injuries, which follow in the text of the Short Pravda immediately after the provision on homicide, are made to the victim; articles 2 and 3 are explicit on this point. The situation changes in the case of princely servants, enumerated in articles 19-27, beginning with the prince’s steward (ognishchanin) and ending with the unfree peasant (smerd). One has to assume that payment for their killing would go to the prince; this would be obvious in the case of the smerd, and from the uniform structure of the list one would conclude that the same would apply to all those mentioned there; otherwise there would have to be some kind of break in the middle of the list. The composition paid to the prince is called vira (or virnoe), usually translated as “bloodwite”; the term appears more frequently in the Expanded Pravda. Article 41 of the Short Pravda, without using the term, regulates the way the amount collected was to be distributed between the prince himself and the officials involved.26 Article 5 of the Short Pravda differentiates quite clearly between the wergeld (golovnichestvo), to be paid by the killer to the victim’s family, and the bloodwite (vira), for which the killer’s community is jointly liable. The point to be made here is that the insertion of the list of the prince’s servants in the Pravda of Iaroslav’s Sons represented the transition from wergeld (in this case payable to the master of the victim) to bloodwite (a fine for killing another person, payable to the ruler). The wergeld survived for a long time, but eventually the state monopolized the legal reaction to homicide.27 If one takes a closer look at the oldest rules concerning wergeld, it is not hard to see that the original character of wergeld was not compensa26

27

The interpretation of this rule bristles with difficulties; cf. Baranowski, 318-324; Grekov, RP II, 232-234.

The modern extension of the law concerning damages, particularly through the emergence of the concept of fixed immaterial damages, signifies to some extent a return to the ancient institution of wergeld.

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tion for material losses, but reparation of honour and status.28 The various tariffs give a clear indication. Striking a man with the hilt or the sheath of a sword resulted in a penalty of 12 grivna, and the same applied to pulling out or shaving somebody’s beard or moustache (arts.4 and 8). On the other hand, cutting off somebody’s finger (something a modern person would consider far more serious) came at 3 grivna (art.7). When imposing sanctions, the Short Pravda often adds the words “for the insult” (za obidu); in the Expanded Pravda the expression is only used twice (in arts.23 and 34, which correspond to arts.4 and 13 of the Short Pravda), against ten times in the Short Pravda.

9. Procedure Procedural arrangements represent the second main cluster of rules which make up the Pravda of Iaroslav. The precise meaning of most of the provisions is still much contested, but certain aspects are clear. There is a procedure referred to as svod in article 14, and a procedure called izvod in article 15. Some authors regard the terms as synonymous, others stress the differences,29 but there is little doubt that in both cases one has to assume, not the involvement of the prince’s court, but of an older jurytype agency, consisting of twelve men.30 Articles 13 and 14 describe two instances of the classical law school problem (the students’ despair and the professors’ delight) of the retrieval of assets which ended up in the possession of another person, against the will of the owner or independent of his will. If this happened within the community (mir) of the owner, a simple taking back is allowed (art.13). Outside the mir, the svod procedure was required (art.14; Kaiser’s translation): “If someone recognizes [his property], he is not to take it back, and ought not to say to him [who possesses his property]: ‘This [property] is mine’; instead he ought

28

29

Cf. A.A. Zimin, PRP I, 88-89; L.V. Cherepnin, Arkhivy I, 245. S.L. Levitsky, “Protection of Individual Honour and Dignity in Pre-Petrine Russian Law”, Tijdschrift voor Rechtsgeschiedenis/Revue d’histoire de droit, 1972, 341-436, at 342-346, does not specifically argue this point, but it is implicit in his entire treatment of the question; this article also contains abundant references to older Russian literature.

30

Zimin, PRP I, 82, 90-91, considered both svod and izvod as a survival of a kind of judicial council of the community; most authors, however, remaining close to the text of art.14, regarded svod as a form of confrontation, leaving unanswered the question before whom this confrontation took place; Tikhomirov, Issledovanie, 78-79; Vernadsky, Medieval Russian Laws, 28-29; Szeftel & Eck, 33.

Such a body also turns up in the earliest known treaty between Novgorod and the Hanseatic League, of 1189/1199; GVNP, No.28, 56. Vernadsky points to the similarity between the svod and possessorial proceedings in Germanic law; see K. von Amira, Grundriss des Germanischen Rechts, Strassburg (3rd ed.), 1913, 210-211.

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to say: ‘Come to a confrontment [to disclose] where you obtained [the property]’; if he [who is asked to appear] does not come, then [he is to provide] a guarantor within five days.”

The provision returns in more elaborate form in the Expanded Pravda (art.35), where it is followed by a few more detailed rules about the svod (arts.36-39). Article 16 of the Short Pravda supplements article 14 in that it deals with the recuperation of a lost slave. It makes of course good sense to devote a separate rule to this eventuality, because the slave can speak for himself and explain how he was transferred from one master to another (the question of the lost or runaway slave also turns up in connection with possible Byzantine influences in early Russian law; see the chapter on “Roman Law in Medieval Russia”). Article 16 requires the original master of the slave to go to the predecessor of the last master and then to the next predecessor, to whom he must say: “Hand me back my slave and look for your money with [the help of] witnesses.” The rule implies that the chain of transactions is reversed, that the last master gets his money back and hands the slave over to his predecessor, and the latter does the same. This procedure can be repeated three times and has been retained, with more detailed rules, in the Expanded Pravda. The svod, so much is made clear by these provisions, is a procedure in which the person who is in possession of the property has to justify its origin by identifying the person from whom he acquired. By retracing the chain of legal events one should, ideally, reach the point where the original owner was deprived of his property. The more detailed rules of the Expanded Pravda obviously reflect a situation of greater commercial complexity and of increased prominence of market transactions. They do not offer the opportunity anymore of not immediately coming to the svod (confrontment) and offering bail instead. The svod as mentioned in the Short Pravda may therefore be a more simple and informal procedure, not requiring the involvement of a proper court.31 The izvod of twelve men (art.15) deals with claims where one party demands the payment of a debt (in money or in kind32); the exact meaning of the first words of the provision are difficult to establish, but the legal consequences are fairly clearly spelled out (Kaiser’s translation): “If somewhere someone seeks from another person the balance [of money owed him], but that person begins to resist, then he is to appear at an investigation before twelve men; and if he wrongfully did not give [the money] back, then he is [to return] the money [to its rightful owner], and [pay] 3 grivna for the offense.” 31

32

Zimin, who tends to equate svod and izvod, regards the former therefore as consisting originally of 12 men; PRP I, 91.

There is no reason, as Kaiser does in his translation, to limit the applicability of the provision to money debts.

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The corresponding provision in the Expanded Pravda is article 47, but instead of presenting the claim to the twelve men, the creditor must produce witnesses who will swear that the claim is true (rota, judicial oath). The last two provisions of the Oldest Pravda, articles 17 and 18, also emphasize procedure. Article 17 deals with the slave who has struck somebody and who then hides in his master’s house. If the master refuses to hand him over to the offended person (for punishment), he must pay 12 grivna and the victim retains the right to chastise the slave.33 Article 18, concerning damage done to another person’s weapons, is closely connected with the “Court Law for the People”, and will be discussed below.

10. The Origins of the Russkaia Pravda The question of the origins of the oldest nucleus of the RP may be looked at from at least three different perspectives. There are first of all the concrete political and historical conditions under which the law code was created. They elucidate the legal character of the code—it may be anything ranging from the actual text of an official legislative enactment to a purely private collection of observations concerning legal matters. We have considered this matter briefly above and tentatively accepted the version offered by the Novgorod Chronicle. Then there is the closely related, but still to be distinguished, question of the underlying causes: what were the problems the code was supposed to deal with, and why was it considered necessary to create new solutions—as provided by the code—to these problems? Finally, what were the origins of these new solutions? Were they original inventions, or based on the experience of the society concerned, or taken over from others? To recall the perspective adopted in the beginning of this chapter: our attention is directed primarily at law in statu nascendi, the moment of metamorphosis when custom and traditional social arrangements are transformed in a fixed order of rules which at the same time institutionalized a central social authority. In this perspective, it is especially the oldest part of the RP, the Pravda of Iaroslav, or the Oldest Pravda, and more particularly the first half of this text, that claims our attention. 33

Arts.16 and 17 use different terms to denote a slave, cheliadin and kholop. There are several theories to explain this difference, but the dominant opinion is that the cheliadin (related to terms denoting children, offspring, and comparable to Latin filius) is the older term. Cf. A.A. Zimin, Kholopy na Rusi (s drevneishikh vremen do kontsa XV v.), Moskva, 1973; also: S.N. Kisterev, “Cheliadin v russko-grecheskikh dogovorakh X v.”, I.G. Konovalova (ed.), Drevneishie gosudarstva Vostochnoi Evropy 2002 god. Genealogiia kak forma istoricheskoi pamiati, Moskva, 2004, 200-214; and M.B. Sverdlov, “Ob obshchestvennoi kategorii «cheliad’» v Drevnei Rusi”, Problemy istorii feodal’noi Rossii [Mavrodin Festschrift], Leningrad, 1971, 53-58.

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The debate about the origins of the RP has gone on a long time and is very complex. It is obvious that the first part of the Short Pravda, the Pravda of Iaroslav, is the oldest component. But the Short Pravda itself is the product of an editorial reworking of several texts, including an early text of the Pravda of Iaroslav, while the same can be said of the Expanded Pravda, compiled a century or so later. It is therefore possible that certain elements of the Pravda of Iaroslav have been retained in more pristine form in the later text of the Expanded Pravda. This, however, is still a collateral issue (where do we find the best text of what was actually the original Pravda of Iaroslav?). The fact remains that we only have the text which the Short Pravda offers (possibly to be corrected then by comparison with the corresponding provisions of the Expanded Pravda). Was this text, or at least its original version, a statute granted to Novgorod by Iaroslav, more or less as narrated in the Novgorod Chronicle? Or was the oldest part of the RP a piece of early legislation by the Kievan grand prince, applying to the whole of Kievan Russia, and only at a later date interpolated by a monastic scribe in the Novgorod Chronicle?34 Or was there a specific connection with Novgorod, but not with the events of 1016? These are some of the hypotheses which have been discussed among Russian and Soviet medievalists. During the Soviet era the debate was further complicated by the necessity to insert class struggle into every kind of historical investigation. It was considered axiomatic that the common people of Novgorod (or of Kiev) were being exploited by their own aristocracy, by the wealthy merchants, but also perhaps by the Viking retinue of the prince, his druzhina. For lack of a better option I would be inclined to accept, provisionally, the theory that the origins of the oldest part of the RP are to be connected with the Novgorod events of 1016, as related by the Novgorod Chronicle. If the opponents of this theory point to the defectiveness of the arguments in favour of it, one can answer that there are fewer arguments for other theories. There is, after all, the clear indication given by the Novgorod Chronicle. Then there is the argument of internal consistency: the theory based on the Novgorod Chronicle is better able to explain the contents of the Oldest Pravda than any other theory.35 One may also give weight to 34

35

The formula in the Novgorod Chronicle, quoted above (“and he gave them a statute”), can be read so that it would refer only to the inhabitants of Novgorod or to all the Russian troops being sent home. One could point to the references to Scandinavians (Variagi and Kolbiagi) in the text of the Oldest Pravda (arts.10 and 11), where the law takes account of their limited possibilities in presenting evidence; some of the officials mentioned in art.1 and other provisions (the gridin, the iabetnik, the mechnik) are also regarded by most commentators as belonging to the Viking population.

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the authority of the majority of scholarly opinion, favouring the Novgorod theory.36 This theory, as pointed out before, does not necessarily lead to the conclusion that the Oldest Pravda should be regarded as an enactment specifically meant for Novgorod and applicable only there. On the contrary, the entire subsequent history of the RP suggests that it applied to the whole of the Kievan empire, as the second part of the Short Pravda, the Pravda of Iaroslav’s Sons undoubtedly did. 37 If the leading opinion is followed and the connection recognized between the events in Novgorod in 1016 and the promulgation of the RP, then the enactment resulting from the hostilities between the Novgorodians and Iaroslav’s Vikings must be reflected in the first ten provisions of Iaroslav’s Pravda and possibly also in the remaining provisions of Iaroslav’s Pravda. Allowing for the possibility or rather likelihood of some later editorial reworking, the extant text may therefore be regarded as the oldest Russian legislation. The question of the underlying causes—What was the political and socio-economic context of this legislation?—is not too hard to answer. Obviously, both Novgorodians and Vikings had their own traditional systems of dealing with behaviour as described in the Pravda of Iaroslav. Where homicide and personal violence were concerned, vengeance and its substitute—composition—were the main instruments. Enforcement was embedded in the still dominant system of the large patriarchal family or clan. The essential element of the kind of violence the Short Pravda dealt with was not the suffering of the victim, nor the economic loss caused by his death or injuries, but the violation of his family’s honour. The presence of a considerable number of foreigners in Novgorod, under the command of the prince of Novgorod, required an adaptation of the traditional system of both ethnic groups involved, in order to deal effectively with inter-ethnic violence. The vital threat to all concerned, Iaroslav himself, the Novgorodians and the Vikings, posed by the imminent war with the Kievan prince, Iaroslav’s brother Sviatopolk, was the catalyst for articulating this adaptation in the form of new legislation. At the same time, it should be remembered, this legislation was a pact between the three parties, as is often the case with incipient legislation. 36

37

Among modern Russian historians, as mentioned above, Froianov, Drevniaia Rus’, 97-112, rejects the Novgorod theory; it seems, however, that his criticism is in fact directed against the position that the Oldest Pravda was a law for Novgorod; he does not deny that the events of 1016 were probably closely connected with the origin of the Pravda of Iaroslav.

Cf. PRP I, 94.

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11. The Sources of the Oldest Pravda When explicit legislation appears for the first time one can usually distinguish between three kinds of sources. Domestic unwritten law is generally the most important contributing factor, supplemented by borrowings from other systems and by pure innovation, the invention of entirely new solutions. This last approach is difficult to demonstrate in the case of legal documents of great antiquity, because of the modest amount of information at our disposal. By a process of deduction, one may merely express the presumption that if something was apparently not present in the past and has also not been taken over from elsewhere, it was probably invented then and there. This leaves us with the need to examine the question of Russian law before the RP and the search for possible external (non-Russian) sources.

12. The “Russian Custom” (Zakon russkii) The Zakon russkii, Russian custom or customary law, has been referred to above in connection with the Russo-Byzantine treaties of the 10th century. It is generally assumed that such unwritten law would have been the most important component of the Oldest Pravda. What is known about such law has to be derived almost entirely from later written law, primarily the RP itself. Looking at the chronological layers of the RP, one may easily observe that at an early stage blood feuds were a legally accepted means of solving disputes, that they were still being practised at the time of the Oldest Pravda, then abolished under Iaroslav’s sons, and that they had disappeared in the 12th century. In this way, by extrapolating backwards in time, a very rough picture can be constructed of what Russian customary law may have looked like in the 9th and 10th centuries. Such a picture does not contribute much to a better understanding of the RP, because all information comes from the RP itself.38 The only other sources left are the treaties of 912 and 945. Both of them contain provisions which are reasonably close to provisions in the RP. It concerns articles 4, 5 and 6 of the 912 treaty and 3, 4, 13 and 14 of the 945 treaty (in the numeration of PRP I). The corresponding provisions in the Short Pravda are articles 1 (homicide), 3, (hitting someone with a stick, a cup, the flat of a sword, etc.), 4 (hitting someone with an 38

Zimin devotes a section to the Zakon russkii in his posthumous work on the Pravda Russkaia (Moskva, 1999, 65-69), but does indeed not get beyond paraphrasing some of the provisions of the Oldest Pravda. M.B. Sverdlov is quite explicit on the Zakon russkii in his study on the Short Pravda “K istorii teksta Kratkoi redaktsii Russkoi Pravdy”, Vspomogatel’nye istoricheskie distsipliny, Tom X, Leningrad, 1978, 135-158. His views are generally close to those developed in this chapter.

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unsheathed sword or a sword handle), 11 (hiding someone else’s slave) and 38 (killing a thief caught in the act). In most of these cases the treaties use the formula “according to Russian custom [or law]” (po zakonu ruskomu). All this strongly suggests that customary law was to a great extent fixed in an oral tradition. This means that the Zakon russkii was more than a general and abstract item: “Russian custom”, but a specific body of unwritten rules. This would agree with the situation encountered with other Indo-European peoples at a comparable stage of development, where the unwritten law constituted a definite entity, to be enunciated by certain experts, the “law-sayer” (iuri-dicus, the Frisian asega). Whether there was any genuine legislation preceding the RP is mostly a matter of speculation. There are a few vague indications in this direction. One (already noted above) is the reference under the year 946 in the Primary Chronicle to Olga, who ruled in Kiev after her husband, the grand prince Igor, had been killed by the Derevlians. After defeating and punishing the latter, she established ustavy i uroki, usually translated as “laws and tribute”.39 Other pointers are even vaguer.40 The existence of genuine princely legislation preceding the RP cannot be excluded on the other hand. The series of treaties between Novgorod and the Hanseatic League offers a useful parallel. The oldest known treaty, of 1189/1199, explicitly confirmed “the old treaty” (of which nothing is known, except what can be derived from the text of 1189/1199 treaty). It is certainly conceivable that the text of the Oldest Pravda as it has come down as a part of the Short Pravda was based on earlier legislation of grand prince Iaroslav or even his father St.Vladimir. The latter, after all, is generally assumed to be the legislator of the so-called Church Statute of Vladimir Sviatoslavich (or at least of its oldest nucleus), a short statute regulating church-state relationships of the recently baptized Kievan Rus’ (see, also, the chapter on “Roman Law in Medieval Russia”). On the other hand, the RP appears without any doubt as the basic legislative document from the earliest times and subsequent medieval Russian legislation continued to build on its foundation. There has never been any mention of other legislation which could in any way be regarded as a competitor in this respect.

39

40

Cf. Zimin, op.cit., 71-80.

Zimin, op.cit., 81-85. Elsewhere (ibidem, 94), Zimin advances the intriguing hypothesis that the ‘domanial’ law contained in arts.19-27 of the Short Pravda could perhaps have been based on Olga’s directives for the management of her estates, given a little more than a century earlier.

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13. Other Contemporary Slavic Legislation The only early Slavic legislation relevant in considering the origins of the RP is the “Court Law for the People” (Zakon Sudnyi Liudem, hereafter ZSL). Its relationships with the various versions of the RP have been examined in the chapter on Roman law in medieval Russia, and only the most important points relevant to the present chapter will be repeated here. Of the three existing versions of the ZSL, only the Short Version will have to be considered, the other two (the Expanded and the Concordance Versions) being of a later date than the Short Pravda. The Short ZSL originated outside Russia (Bulgaria, Moravia or Macedonia) sometime during the 9th century and reached Russia before the 13th century. It was almost entirely based on the Greek Ecloga, but the latter’s system of sanctions was fundamentally changed. The parallels between the ZSL and the Short Pravda all concern suggested borrowings from the Expanded ZSL; there are no parallel provisions between the Short ZSL and the Short Pravda. As the Expanded ZSL was compiled in Russia, probably during the first half of the 14th century, any borrowing must have been from the Short Pravda, and not the other way around. The RP antedates the earliest codifications of other Slavic peoples, with the exception of the Short ZSL. Closest to the RP, in time, place and general tenor, is the nameless Polish law book, written in the 13th century in German.41 Another comparable source is the Statute of Vinodol of 1288, an early medieval law code from the Dalmatian coast.42 14. Germanic Contacts The relationship between early Slavic (Russian) and early Germanic law has long been a politically sensitive subject, especially during the Soviet era in the period following the Second World War. These feelings apart, two major considerations remain: there is a considerable amount of similarity between the RP and the early Germanic laws of the type of the leges barbarorum; and, secondly, historical conditions would suggest at least a certain amount of Germanic, particularly Scandinavian influence on the development of early Russian law. 41

42

Cf. B.D. Grekov, “Pol’skaia Pravda. Opyt izucheniia obshchestvennogo i politicheskogo stroia Pol’shi XIII v. po Pol’skoi Pravde (‘Kniga Prava’)”, B.D. Grekov, Izbrannye trudy, I, Moskva, 1957, 267-442 (includes German text and Russian translation).

Cf. B.D. Grekov, “Vinodol’skii Statut ob obshchestvennom i politicheskom stroie Vinodola”, B.D. Grekov, Izbrannye trudy, I, Moskva, 1957, 33-110. Russian translation by V.V. Iagich, Zakon Vinodol’skii, S.Peterburg, 1880.

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The similarity is most obvious if one looks at the batch of Germanic laws adopted or approved at the imperial diet of 802/803 in Aachen: the laws of the Saxons, Frisians, Thuringians and Chamavian Franks (Lex Saxonum, Lex Frisionum, Lex Thuringorum or Lex Angliorum et Werinorum, and the Ewa ad Amorem or Lex Francorum Chamavorum).43 Disregarding linguistic differences (the old English laws were written in Anglo-Saxon, the Old-German laws in corrupt Latin, and the RP in Old-Russian), the RP would fit effortlessly into the otherwise purely Germanic collection. A tripartite class structure (nobles, freemen, and unfree persons) is dominant in the Germanic laws and less so in the RP. In the Oldest Pravda the focus is on the freeman, the boyar appears in chronologically younger layers of the Expanded Pravda. In the first part of the Lex Saxonum, the similarity with the Oldest Pravda is the most striking. This is the more intriguing since the Saxon territory, in North-West Germany, was the direct neighbour of Jutland, the region from which Rurik, at least according to some of the current theories, originated. An intriguing footnote to the debate concerning the relations between early Germanic and Slavic legislations is provided by the medieval laws of several Baltic nations. There is undeniably an important and perhaps dominant German influence to be observed in these laws, but the few authors who have concerned themselves with this topic have also noted an indigenous element. The oldest layers of these laws resemble both the RP and sections from the early Germanic laws.44 Similarity can always be explained in three ways: common origin, borrowing, or accident. The latter becomes more unlikely as similarity becomes more striking. The idea of borrowing takes us to the second point mentioned above: the presumed legislator of the Oldest Pravda, the Kievan grand prince Iaroslav Vladimirovich, was still surrounded by many Scandinavian ele43

44

Cf. H. Conrad, Deutsche Rechtsgeschichte, I, Karlsruhe, 1962, 131-134; R. Schröder, Lehrbuch der deutschen Rechtsgeschichte, Leipzig (3rd ed.), 1898, 243-248. The earliest Anglo-Saxon laws, the laws of the Kentish kings, beginning with the Law of Aethelberht of around 600, belong to the same general type. The actual format of the laws of the Germanic tribal nations belonging to the Frankish empire also owed a lot to the particular circumstances of their fixation in a written document. The Law of the Saxons, for instance, bears the traces of the recent war with the Franks and the forceful establishment of Frankish rule. The main publication of these Baltic laws was the work of F.G. von Bunge in several volumes, during the first half of the 19th century. A new bi-lingual publication (Low Middle German and Russian) by E.L. Nazarova, “«Livonskie Pravdy» kak istoricheskii istochnik”, V.T. Pashuto (ed.), Drevneishie gosudarstva na territorii SSSR 1979 god, Moskva, 1980, 5-218.

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ments. He was himself the descendant of Viking chiefs, his mother was also of Viking descent,45 and his wife Ingigerd was the daughter of the king of Sweden. His great-grandparents Igor and Olga, according to the preamble of the treaty of 945, were accompanied by a large number of magnates and merchants, during their raid on Byzantium, all of whom bore Scandinavian names. Iaroslav (‘Jaritsleif ’) and his father Vladimir (‘Waldamar’) figure prominently as rulers of Novgorod (‘Holmgard’) in several Scandinavian sagas, especially the one about Olaf Tryggvason and Eymund, and contacts with Viking leaders from Scandinavia were obviously close and frequent.46 When political and military problems arose for Iaroslav as ruling prince of Novgorod in 1015-1016, calling in help from his allies and relatives in Scandinavia, as related by the Chronicle, must have been an easily available option. And when, somewhat later, there was a need to negotiate a settlement between the population of Novgorod and his Viking soldiery, falling back on Scandinavian customary law, with which Iaroslav must have been familiar, would have been an equally obvious option. This by itself could explain the strong similarity with Germanic law from NorthWestern Europe, as we know it from two centuries later. Several modern Russian authors have stressed the importance of the druzhina aspect in the political and legal culture of early Kievan Russia.47 In this view, the “Russes” of the treaties with Byzantium are the druzhina members and the “Russian custom” (Zakon russkii) is actually the customary law of the druzhina. If these considerations are combined with the 45

46

In the entry for 980, the Primary Chronicle mentions Rogneda, the daughter of prince Rogvolod or Rognvald of Polotsk as his mother. As to her Scandinavian background, see E.V. Pchelov, Genealogiia drevnerusskikh kniazei, Moskva, 2001, 165. The old Western standard work on Rurikid genealogy, N. de Baumgarten, Généalogies et mariages occidentaux des Rurikides russes du Xe au XIIIe siècle, Orientalia Christiana, Vol. IX-1, No.35, Roma, 1927, 7-8, erroneously regards an “unknown pagan spouse” as the mother of Iaroslav.

47

Cf. E.A. Rydzevskaia, Drevniaia Rus’ i Skandinaviia v IX-XIV vv. Drevneishie gosudarstva na territorii SSSR. Materialy i issledovaniia 1978 g., Moskva, 1978. Of particular interest in this respect is the study by E.A. Mel’nikova on the connections between the (earlier sections of the) Primary Chronicle and the Ynglingasaga: “Istoricheskaia pamiat’ v ustnoi i pis’mennoi traditsiiakh (Povest’ vremennykh let i «Saga ob Inglingakh»”, E.A. Mel’nikova (ed.), Drevneishie gosudarstva Vostochnoi Evropy 2001 god. Istoricheskaia pamiat’ i formy ee voploshcheniia, Moskva, 2003, 48-92.

Especially the group of younger scholars around the yearbook Drevneishie gosudarstva Vostochnoi Evropy (DGVE), the successor of Drevneishie gosudarstva na territorii SSSR, founded in 1978. See e.g. E.A. Mel’nikova, “K tipologii predgosudarstvennykh i rannegosudarstvennykh obrazovanii v Severnoi i Vostochnoi Evrope”, DGVE 1992-1993, Moskva, 1995, 16-32; N.F. Kotliar, Drevnerusskaia gosudarstvennost’, S.Peterburg, 1998, 63-70; A.A. Gorskii, Drevnerusskaia druzhina, Moskva, 1989 (not available to me).

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acceptance of the theory of the origin of the Oldest Pravda in connection with the events in Novgorod in 1016, then the conclusion that the Oldest Pravda reflects predominantly Viking customary law presents itself more urgently. In this connection, an old argument in favour of the presence of vigorous Scandinavian traditions at the court of the early Russian rulers has recently re-emerged. Rurik, the ancestor of the Kievan ruling house, who would have come from Scandinavia in 860/862 according to the Primary Chronicle, is identified by some 19th century authors and several émigré Russian historians as being the same as a Rurik, a member of the Viking dynasty of the Ynglinger, who was active in Jutland and Northern Germany on the fringes of the Carolingian empire; he appeared as a liegeman of the emperors Louis the Pious and Lotharius in the period between 830 and 850. In a recent study, E.V. Pchelov has reviewed the evidence in detail and reached the conclusion that, although the identity of the two Ruriks cannot be considered proven, there are nevertheless strong arguments in favour of it.48 A number of caveats have to be inserted however. Old-Russian customary law may have been quite similar to Germanic customary law and then there would be no way of telling what would be Slavic or Germanic in the oldest Russian legislation. The earliest law of other Slavic peoples, where there is no reason for assuming any significant Germanic influence, appears to be quite similar to Old-Russian law. Secondly, although the Old-Russian druzhina may originally have consisted of Vikings, the evidence from the Chronicles shows that other ethnic elements were also present in Early Kievan times: Slavic, Finnish, and Turkic (Pecheneg). Also, the Viking element, although very visible, must have been small in quantitative terms and was quickly absorbed into the Russian population and Russian culture.49 Thirdly, the Oldest Pravda served as an important ingredient of the Expanded Pravda, which unquestionably was the general law for the entire Kievan empire. This suggests that the Viking content of the Oldest Pravda was either not very significant, or was sufficiently 48

49

E.V. Pchelov, Genealogiia drevnerusskikh kniazei IX-XI vv., Moskva, 2001, 68-98. Another recent study by V.I. Merkulov, based primarily on obscure German sources, advocates a North German origin of the dynasty of Rurik; V.I. Merkulov, Otkuda rodom variazhskie gosti? Genealogicheskaia rekonstruktsiia po nemetskim istochnikam, Moskva, 2005.

The Russian signatories of the 945 treaty, although clearly Vikings, judging by their names, did not swear by Thor, but by Perun, the Slavic god of thunder, indicating that the Varangian retinue of the Kievan prince had already adopted the religion of their Slavic surroundings.

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similar to what already constituted Russian custom and could therefore easily be absorbed.

15. What does the Oldest Pravda Represent? At a certain moment in the history of the Eastern Slavs, law came to be written down in a document which can more or less be identified as the Oldest Pravda (the first half of the Short Pravda), or which at least formed the basis for the Oldest Pravda. So much can safely be assumed. Before this, customary law ruled, and learned opinion would generally agree that most of the provisions of the Oldest Pravda reproduced, either directly or in some amended form, the old customary law. The question then is: Why was the transition made, from customary to written law? The answer suggested by modern experience, by similar events in the history of other legal systems, and also by what is known about the conditions surrounding the genesis of the Oldest Pravda is that a change of circumstances, the occurring of a new situation, produced a conviction that some of the old arrangements had become inadequate and that new ones were required. The customary laws of the Russians and the Vikings were probably not too divergent, as argued before, but together they were presumably unable to cope fully with the new problems arising from the forced symbiosis of the two groups. The simple fact already that the Varangian warriors were away from home meant that they lacked the protective shell of the extended family, which was so important in defending the legal interests of the individual. Those customary arrangements that were inadequate (concerning mostly inter-ethnic violence and trade disputes) had to be replaced, or rather amended, to restore peace and order. This also explains why the coverage of the Oldest Pravda is quite limited. Very likely, almost inevitably, the old customary law remained in force in areas not mentioned. As the new arrangements aimed at restoring peace and order between antagonistic groups, they should preferably be based on an agreement between those groups; early laws are often both legislation and pact or treaty. The new situation should be advantageous to both sides. The prince, initially, was a broker rather than a legislator. Iaroslav, faced with an immediate military threat from the side of his brother Sviatopolk, grand prince of Kiev, was forced to raise quickly an army of suitable size, and he needed both the military prowess of his Viking mercenaries and the numbers of the Novgorod militia. The recent enmity between these two groups could be overcome by the common danger which they all faced, but some kind of pacificatory instrument was needed. The Oldest Pravda (or an older document which formed the basis of it) fulfilled this func-

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tion. The independent legislative input of the prince was probably small, although of decisive importance with a view towards the future. Iaroslav’s sons already appear as genuine legislators, where the Expanded Pravda names them in article 2 as the princes who abolished the blood feud. In the second half of the Short Pravda (the Pravda of Iaroslav’s Sons), there are also other indications of the legislative activities of the princes.50 The entire history of the RP in its subsequent chronological layers illustrates the complexity which the process of emerging law may display. In the beginning, there was a system of unwritten law, the Zakon russkii, as Russian tradition calls it, probably of considerable size and fixed through mnemonic devices, as witnessed by the stability of the formulas appearing later on in written texts. When this system turned out to be inadequate to deal with new challenges during a crisis, new arrangements were created. This had probably happened many times in the past—the creation of new customary law. But the availability of writing after the baptism of Russia changed the nature of this procedure. Those who caused the new arrangements to be written down, and who already enjoyed the power to command, soon discovered that simple recording could easily be expanded into the issuing of written orders, and that such orders were generally more effective than oral ones. In the first centuries of Russian law, there still was considerable confusion about who did the writing. The Oldest Pravda is regarded by most as genuine legislation albeit embryonic—a pact brokered by prince Iaroslav between Novgorod and his Varangian soldiery. The Pravda of Iaroslav’s Sons also has the appearance of legislation or rather a collection of acts of legislation of these princes. The combination of the two texts (plus a few smaller fragments) into the document known as the Short Pravda was probably the work of monastic scribes. The genesis of the Expanded Pravda was even more complicated, but does not belong to the phase of early law anymore.

50

E.g. the episode discussed above about the stable master of Iziaslav, killed by the men of Dorogobuzh, for whom an amount of 80 grivna was established.

Chapter 3 Roman Law in Medieval Russia 1. Introduction to the Problem Whether Roman law exercised any influence on the development of Russian law, and if so, when, how and to what extent, presents a complex of questions which have continued to intrigue Russian and foreign legal historians for almost two centuries. In one of the great overviews of the impact of Roman law through the ages on Western culture, Paul Koschaker confessed that he had been unable to come up with clear answers.1 To eliminate one issue already at the start: the following discussion only concerns the earlier phases of Russian legal history. In the course of the 19th century, the Russian government regularly sent promising young academic lawyers to the great German universities of that time (mainly Berlin and Heidelberg) where the study of the Pandectae constituted the backbone of the curriculum. This policy resulted in a powerful injection of Roman law thinking into the study of law in Russia, which in one way or another was maintained in later years, even under Soviet rule, and with renewed vigour in post-Soviet times.2 One reason why the problem indicated above refuses to go away is that one side of the discussants seeks to find a negative answer: viz. Roman law did not influence the early phases of Russian law. The absence of something may occasionally be proven by arguing irrefutably that it cannot be present (a matchbox cannot contain an elephant, therefore there is no elephant in this matchbox). Usually, however, one has to be satisfied by conducting a very thorough search and concluding that what one has been looking for has not been found and is therefore most likely not there. Such a conclusion is not definitive (that is why atheists can never win). In the present case, one could simply ask those who claim that Roman law influenced early Russian law to mention one provision of, say, the Russkaia Pravda that has been taken over from Roman law or is at least so similar in its wording to a Roman counterpart that common sense and probability calculus would tell us that the Roman rule is its ancestor. Nobody, to the 1

2

P. Koschaker, Europa und das römische Recht, München (1st ed.), 1947. Three more editions followed, without a change in page numbers (1953, 1958, 1966). I have used the 3rd edition of the Dutch translation, edited by Th. Veen (Deventer, 2000), which maintains the pagination of the original German publication. Koschaker’s views on Russia and the Roman law are to be found on pp.15, 130-134.

Cf. the small but very informative study by M. Avenarius, Rezeption des römischen Rechts in Russland–Dmitrij Mejer, Nikolaj Djuvernua und Josif Pokrovskij (Quellen und Forschungen zum Recht und seiner Geschichte XI), Göttingen, 2004.

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present author’s knowledge, has yet come up with a wholly convincing example, but of course it could still happen. In Western scholarship, one could have expected that Darrell P. Hammer’s short study on “Russia and the Roman Law”, published half a century ago, would have settled the matter once and for all.3 Hammer’s conclusion is worth quoting in full. “In summary, then, the Corpus iuris civilis, the final epitome of the law of Rome and the basis of the Roman-law tradition in the West, was wholly unknown in Russia until the end of the Muscovite period. Certain elements of Justinian law did find their way to the Russians through Greek and Slavonic translations, but these were rare and had been merged with later Byzantine legislation. The Russians knew only a few of the novellae and some other scattered fragments, but such accidental borrowing does not amount to a ‘reception’ of Roman law.”4

Although this conclusion was based on only a very brief (but competent) survey of the available evidence, other scholars did not return to the question and either concurred with Hammer’s view5 or continued to regard the matter as unsolved, as Koschaker had done.6 Nevertheless, the fifty-odd years elapsed since Hammer’s study have produced a certain volume of materials which are at least relevant to the problem and this alone would warrant a second look at it. But more important is a complex of factors connected with the new politico-legal situation in Russia. The question concerning the influence of Roman law on early Russian law was not completely disregarded during the Soviet era, but it often became caught up in wider-ranging and politically sensitive issues. This inevitably impeded a sober and objective approach. In the post-Soviet era, the topic was moved to another plane. The new Russia was in need of new legislation in many major fields, particularly that of civil law. There was less incentive to adopt an exclusivist and often hostile attitude towards foreign law and influences from abroad. The Roman law, as the mother of all Western legal systems, appeared therefore in a new light in Russia and came to enjoy renewed interest. Russian legal scholars began to study and explain the connections which Russian law had had with other European legal systems through the ages. The common ancestry under Roman law was one factor which would easily attract attention in this regard. One author even went so far as to claim that Roman law had 3

4

D.P. Hammer, “Russia and the Roman Law”, The American Slavic and East European Review, Vol.16 (1957), 1-13.

5

Ibidem, 6.

6

Most outspoken is D.H. Kaiser, The Growth of the Law in Medieval Russia, Princeton, 1980, 173-174.

E.g. M. Szeftel & A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 23: “la problème reste encore à étudier”.

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deeply influenced Russian law from its very beginnings (E.V. Salogubova, to whose writings we shall return below).7 The question concerning external influences on a country’s law becomes more clear once the concept of “influence” has been defined more precisely in this context. One could speak of the influence of legal ideas or institutions on other legal ideas and institutions when an awareness of the existence of the former has had an effect on the shaping of the latter. This effect is maximal when (the idea or) the institution is taken over lock, stock and barrel. Often, however, in the case of legal borrowing, the borrower adapts the institution to his own existing law. In other cases, a legislator or court may consider the foreign solution, reject it as unsuitable, and opt for a different course. Although one might still regard this as an example of (negative) influence, its occurrence will usually be difficult to establish if the events took place long ago.8 In any case, influence ranges from a complete and considered take-over to a barely perceptible effect. Our study is structured as follows: The following (second) section continues and expands the brief survey of this introduction, by having a closer look at the various views which have been advanced through the years on the question of Roman law influence on early Russian law. The attention will focus on pre-revolutionary, Soviet and post-Soviet scholarship in Russia (the USSR) itself. The actual investigation could be compared to a (continental) criminal trial, where a charge is brought, the evidence is collected, and then investigated, whereupon a decision is reached. Before the investigation gets underway the parties must be identified: who are the ‘lenders’, who the ‘borrowers’? In other words, which laws, in the context of this investigation, are to be considered as influencing, and as being influenced? These will be the subject of the third and fourth sections. 7

8

E.V. Salogubova, “Vliianie rimskogo prava na rossiiskoe grazhdanskoe zakonodatel’stvo”, Vestnik Moskovskogo Universiteta, seriia II. Pravo, 1997, No.2, 29-37; id., “Elementy rimskogo prava v rossiiskom proizvodstve X-XVII vv.”, Ius Antiquum– Drevnee Pravo, 1999, No.4, 173-179. (The second article is a slightly expanded version of the first one, but lacks the last two pages of the first paper, which deal with developments in the last three centuries.)

There is a famous example in early Russian legal history, discussed by several Russian legal historians, in the entry for the years 994-996 in the Russian Primary Chronicle. Shortly after Russia’s conversion to Christianity, the bishops (Greeks at that time) exhorted prince Vladimir to execute robbers and brigands (which would have been according to Byzantine law), but Vladimir refused, pleading that he was “afraid to sin” (it would be contrary to Russian customary law). The verb kazniti is often translated as “punish”, but the arguments for having it refer specifically to capital punishment in this case are convincing in my view.

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The short fifth section will consider in a general way what is to be understood by influences of one legal system on another. This would also be the logical place to present the ‘charge’, in other words to present the various arguments, from the very general to the very specific, for Roman law influences in early Russian law, as they have been put forward in the scholarly literature. It is, however, more practical to do so in combination with their evaluation, in the seventh section, in order to avoid unnecessary repetition. The sixth section will look more closely at the ‘evidence’. There is general agreement that Roman law can have affected early Russian law only through the intermediary of Byzantine law. We shall have to consider therefore which Byzantine legal sources would be relevant in this respect. Byzantine texts would reach Russia mainly in the form of ecclesiastical collections of the Nomocanon type, known as kormchie in Russian history. The seventh section will be devoted to a critical examination of the arguments in favour of Roman and Byzantine legal influences on medieval Russian law, in light of the evidence presented in the sixth section. The eighth section will consider subsequent developments in Russian law in less detail, in the manner of an obiter dictum, to be followed by a few general conclusions.

2. How the Views Developed over Time The question concerning the influence of Roman law on early Russian law has a history of its own. It could only be posed after something became known about the earliest law of Russia itself. Such early law has been transmitted in the form of fragments, individual legal texts, and not as a more or less complete legal system. It is possible to argue in a general manner that Roman law has influenced early Russian law and some authors have indeed done precisely that. But once such an argument is investigated more deeply, it will always be necessary to turn to the few individual legal texts which embody this law. Foremost among these are the various versions of the Russkaia Pravda (hereafter: RP), then the so-called church statutes of the princes Vladimir and Iaroslav, a small group of other princely statutes and a few local or regional charters. As these sources were rediscovered, mainly in the course of the late 18th and the 19th century, some scholars asked themselves how these texts had originated and in that context the question of Roman law influence could arise.9 9

A short overview of the historiography in this matter is given by Hammer, op.cit., 2-5, and a more elaborate overview, referring especially to the Russkaia Pravda, may be found in S.V. Iushkov’s monograph Russkaia pravda. Proiskhozhdenie, istochniki, ee znachenie, Moskva, 1950, 360-371. The question of Roman/Byzantine influences in the Russkaia Pravda is also discussed in G. Baranowski’s recent study of this text: G. Baranowski, Die Russkaja Pravda–ein mittelalterliches Rechtsdenkmal. Rechtshistorische Reihe 321, Frankfurt a/M., 2005, 723-726.


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In the first major Russian study of the RP, by N.V. Kalachov, the question of possible Roman-Byzantine influence was extensively discussed in a special chapter,10 but later 19th century (legal) historians in Russia limited themselves mostly to general statements, usually in connection with their discussions of the RP. On the basis of his overall view of the Kievan Russian state and its law, an author would conclude that Byzantine (or even Roman) law would have been a significant or less significant source in the formation of early Russian law, or perhaps of no relevance at all. A typical example of this approach is Kliuchevskii: “These private manuals [various versions of the Ecloga and the Epanagoge, FF] were used by the Greeks in the same 11th and 12th centuries when similar codification efforts according to Byzantine examples were under way with us. The requirements of local church jurisdiction led to this work, and the synoptic Byzantine codification provided it with a ready form and methodology.”11

Vladimirskii-Budanov, the author of the most important pre-revolutionary legal history textbook, devoted a short paragraph to the reception of Byzantine law in Russia and stated simply that the RP undoubtedly contained close borrowings from the secular legal texts included in the Russian versions of the Byzantine Nomocanon (the kormchie). The principal Byzantine legal texts involved in the reception in Russia, according to him, were the Ecloga and the Procheiron.12 S.M. Solov’ev, in the first book of his famous four-volume “History of Russia From the Most Ancient Times”, simply stated that “Greek legislation had […] a strong influence on the legal life of Russia” after the adoption of Christianity. He rejected any Germanic influence, particularly of the Vikings, on the earliest Russian law, because the Vikings did not find themselves on a higher social level than the contemporary Russians.13 10

N.V. Kalachov, Predvaritel’nyia iuridicheskiia svedeniia dlia polnago ob”iasneniia Russkoi Pravdy, S.Peterburg, 1846. I have used the 2nd (unamended) edition of 1880; the chapter concerned is on pp.231-263. Most of the examples mentioned by later authors had already been indicated in Kalachov’s remarkable study.

11

12

V.O. Kliuchevskii, Kurs russkoi istorii, Lecture 13; I have used the Collected Works (Sochineniia) in the 8-volume edition of 1956-1959 (Moscow), where the quotation is found on pp.214-215. It was first published in 1904, but written some time during the 1880s. Kliuchevskii occupied a somewhat dissident position in respect of the nature of the RP. He regarded it primarily as a manual for ecclesiastical courts and this quotation has to be read in this light.

13

M.F. Vladimirskii-Budanov, Obzor istorii russkogo prava, Kiev, 1886. The last (seventh) pre-revolutionary edition was published in Kiev in 1915, and republished in 1995 in Rostov-na-Donu. It is the latter republication which I have used. The section on the reception of Byzantine law is on pp.114-115.

S.M. Solov’ev, Istoriia Rossii s drevneishikh vremen, Book 1, S.Peterburg, 1851, 231-238.

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Other authors were somewhat more specific and adduced one or more examples of what they considered as indications of Byzantine influence. One of them is D’iakonov who mentioned Byzantine law as the fourth source of early Russian law, along with customary law, princely legislation, and court practice.14 In support of this, he pointed to the rules of RP on the unauthorized use of another person’s horse and on the killing of a thief caught in flagranti during the night, which he suggested had been borrowed from the so-called Court Law for the People (Zakon Sudnyi Liudem, to be discussed below), itself based almost completely on the Ecloga. There were probably many more of such borrowings in the Expanded Version of the RP, he added. A quite similar position was occupied by Sergeevich.15 Both authors made the point that the Byzantine provisions were not just simply taken over, but were reworked in order to make them agree with existing Russian legal tradition. Inheritance law is discussed in particular detail by Sergeevich, who regarded the Ecloga as the principal source of the Expanded Pravda on this point.16 The most outspoken of all pre-revolutionary scholars was N.A. Maksimeiko. He published a special study on the so-called Short Version of the RP, in which he identified a number of borrowings, not only from Byzantine law, but also directly from the Corpus Iuris.17 14

15 16 17

M. D’iakonov, Ocherki obshchestvennago i gosudarstvennago stroia Drevnei Rusi, S.Peterburg (2nd ed.), 1908, 48-50. V. Sergeevich, Lektsii i izsledovaniia po drevnei istorii russkago prava, S.Peterburg (4th ed.), 1910, 43 and 94. Ibidem, 548-572.

N.A. Maksimeiko, Opyt kriticheskago izsledovaniia Russkoi Pravdy, Vyp.1, Khar’kov, 1914. This work has not been available to me, but extensive excerpts have been included in the three-volume edition of the RP by the USSR Academy of Sciences, published under the general editorship of B.D. Grekov. Vol.1 (Moscow/Leningrad, 1940) contains the texts of the available manuscripts, Vol.2 (Moscow/Leningrad, 1947) a survey of the scholarly literature, mostly in the form of direct quotations, arranged according to the provisions of the RP, and Vol.3 (Moscow, 1963) a facsimile reproduction of the major manuscripts. References to Maksimeiko’s work in this chapter have been made as follows: “RP II” (referring to the second volume of Grekov’s edition of the RP), followed by the page number and a number in brackets (referring to the page number of Maksimeiko’s work, as mentioned by Grekov). Large parts of Maksimeiko’s work, including the chapter on the influence of Roman law on the Short Pravda, have also been included in Iu.S. Shemshuchenko (ed.), Antolohiia ukrains’koi iurydychnoi dumki, II, Kiev, 2002, 280-326. Maksimeiko continued to work as a legal historian in Khar’kov after the October Revolution. His views on Roman-Byzantine influences in early Russian law were the subject of a special refutation by E. Chernousov, “K voprosu o vliianii vizantiiskago prava na drevneishee russkoe”, Vizantiiskoe obozrenie (published by the University of Iur’ev faculty of history and philology), Vol. II, part 2, Iur’ev, 1916. Although the


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The most important two points emerging from the pre-revolutionary discussion are: (1) that the question of foreign influences on early Russian law concerned above all the RP, as the outstanding monument of early Russian law, and (2) that the influence of Roman/Byzantine law was often discussed in connection with the possibility of Germanic influences. This pattern was carried over into the Soviet era. Just before the USSR became involved in the Second World War, M.N. Tikhomirov published a new study on the RP which was generally positive towards Maksimeiko’s views.18 Tikhomirov agreed with those pre-revolutionary authors who had detected borrowings from the Court Law for the People (the ZSL) in the RP.19 The leading medievalist of the first half of the Soviet era, B.D. Grekov (1882-1953), who published widely on the Kievan period and on the RP, hardly mentioned any Byzantine connections, but went out of his way to reject Germanic influences.20 The most prominent Soviet legal historian of the same period, S.V. Iushkov, who had been writing about the RP since the 1920s, published a major monograph on the subject in 1950. His antiGermanic feelings echoed those of Grekov and may be explained by the circumstances of the time, just after World War II and while Stalin was still alive. But unlike Grekov, he devoted much attention to the question of Byzantine influences and offered an extensive and devastating critique of the views of Maksimeiko.21 He concluded that the RP had its sources exclusively in Eastern Slav law and that any similarities with Germanic or Byzantine law should be explained as the result of parallel developments based on similar socio-economic circumstances.22 seriousness of Maksimeiko’s scholarship is beyond doubt, he also displayed his predilection for unusual points of views in other studies on the RP, for instance “Mnimye arkhaizmy ugolovnago prava Russkoi Pravdy”, XXXV Vestnik Prava, (S.Peterburg), 1905, No.3 (124-152) and No.4 (135-161), presenting a picture of Kievan Russia which appears utterly unrealistic after a century of RP scholarship.

18

19

N.[recte M.]N. Tikhomirov, Issledovanie o Russkoi Pravde. Proiskhozhdenie tekstov, Moskva/Leningrad, 1941.

Ibidem, 59.

21

Esp. in “Russkaia Pravda i ee slavianskoe okruzhenie”, an address to the annual assembly of the USSR Academy of Sciences, published in B.D. Grekov, Kievskaia Rus’, Moskva, 1953, 534-546, and in Izvestiia AN SSSR, Seriia istorii i filosofii, Vol. IX, No.2, 105-114.

22

S.V. Iushkov, Russkaia Pravda. Proiskhozhdenie, istochniki, ee znachenie, Moskva, 1950, 360-368. Iushkov had already made the same point briefly in his more general work Obshchestvenno-politicheskii stroi i pravo kievskogo gosudarstva, Moskva, 1949, 189.

Ibidem, 370-371.

20

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In a new study on the RP, published in 1953, Tikhomirov changed course and associated himself with the position of Grekov and Iushkov, declaring that “All efforts to prove some kind of influence on the Russkaia Pravda by Byzantine, Southern Slav, Scandinavian or any other legislation have turned out to be altogether fruitless. The Russkaia Pravda arose completely on Russian soil and was the result of Russian legal thought of the 10th to the 12th century.”23

After Iushkov’s spirited refutation of Maksimeiko’s theory concerning Roman-Byzantine influences in early Russian law, no Soviet author returned to the question for a long time. A.A. Zimin, one of the most brilliant representatives of the next generation of Soviet medievalists, completed work on a monograph on the RP shortly before his death in 1980, but this work was published only in 1999.24 Zimin’s opinion as to the origins of the RP did not differ significantly from the views of the foregoing generation. He had already briefly expressed himself in similar vein in 1952, but that was at a political juncture (late Stalinism) and at an early moment in his career, when he could only be expected to support his ‘elders and betters’ such as Grekov, Iushkov and Tikhomirov.25 The appearance of Ia.N. Shchapov’s study on the Byzantine and Southern Slav legal heritage in Russia in the 11th-13th century in 1978 must be regarded as the next major event in the history of the question which concerns us here.26 This work, as suggested by its title, presented an in-depth analysis of the actual process through which Byzantine legal materials reached Russia during the period indicated. Shchapov’s earlier studies on the so-called church statutes (primarily the Church Statutes of Vladimir and his son Iaroslav) had already provided a solid basis for a further inquiry into the complex relationships between Byzantine ecclesiastical legislation, the legal position of the Russian church and Russian 23

M.N. Tikhomirov, Posobie dlia izucheniia Russkoi Pravdy, Moskva, 1953, 7.

25

A.A. Zimin, Pravda Russkaia, Moskva, 1999.

26

Zimin was the author of the commentary to the two versions of the RP as published in the 8-volume series of Pamiatniki russkogo prava; the first volume Pamiatniki kievskogo gosudarstva, X-XII vv. (Moskva, 1952) contained a.o. the RP; the relevant text is on p.74. The last volume of these Pamiatniki (Vol.7) appeared in 1963 (after Vol.8). A new series (Rossiiskoe zakonodatel’stvo X-XX vekov) was planned of which the first volume (Zakonodatel’stvo Drevnei Rusi) appeared in 1984. In his introduction to this volume, O.I. Chistiakov, who was also the general editor of the entire series, still repeated most of the standard opinions of the preceding generations of Soviet scholars, but in a more moderate form, making allowances for hitherto divergent opinions. See esp. pp.22-26.

Ia.N. Shchapov, Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v XI-XIII vv., Moskva, 1978.

24


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secular legislation.27 The central role in this matter was played by the several and interrelated Byzantine collections known variously as Nomocanon or Syntagma canonum. The outcome of Shchapov’s investigation agreed with the position of his predecessors, insofar as he concluded that the main monument of secular law in Kievan Russia, the RP in its two main versions, hardly reflected any traces of Byzantine influence. However, Shchapov was of the opinion that the RP did not only show significant similarity with other early sources of Slav law (as had been argued forcefully by Grekov), but also with West European sources such as the Germanic leges barbarorum (a view vehemently rejected by Grekov and Iushkov). The Russian church statutes on the other hand, although a much less important source of secular law, were undoubtedly connected with Byzantine law, although Shchapov did not really sketch a clear picture on this point.28 To some extent this defect was corrected in a paper Shchapov published in 1987, which was entitled “Roman law in Russia until the 16th century”. The title of this paper was misleading in so far as the paper dealt predominantly with the impact of later Byzantine law, such as the Ecloga and the Procheiron, on Russian law.29 In the present post-Soviet period the most prominent and prolific author on the Kievan era, I.Ia. Froianov, has not expressed himself explicitly on this topic.30 I.A. Isaev, the author of a prominent university textbook on Russian legal history, in his section on “Church statutes and Byzantine law”, considered Byzantine law (esp. the Ecloga and the Procheiron) as important sources, while at the same time agreeing with the view put forward by earlier authors, that Byzantine law was generally subject to considerable reworking in the process of being integrated into Russian law.31 With regard 27

28

Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi XI-XIV vv., Moskva, 1972; id., Drevnerusskie kniazheskie ustavy XI-XV vv., Moskva, 1976.

Shchapov, Vizantiiskoe …, 251-254.

Ia.N. Shchapov, “Rimskoe pravo na Rusi do XVI v.”, V.L. Ianin (ed.), Feodalizm v Rossii [Cherepnin memorial collection], Moskva, 1987, 211-219.

29 30

31

Froianov published three books on Kievan Russia, all of them titled Kievskaia Rus’, which were later on collected in a single volume, together with other papers. Kievskaia Rus’. Ocherki sotsial’no-ekonomicheskoi istorii, Leningrad, 1974; Kievskaia Rus’. Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980; Kievskaia Rus’. Ocherki otechestvennoi istoriografii, Leningrad, 1990; published together in Nachala russkoi istorii. Izbrannoe, Moskva, 2001. Another volume, covering some of the same terrain is I.Ia. Froianov, Drevniaia Rus’. Ocherki i issledovaniia istorii sotsial’noi i politicheskoi bor’by, S.Peterburg, 1995. I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva (3rd edition; first edition in 1998), 2006, 36-39.

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to the RP, he followed the lead of Kliuchevskii, who saw the RP as a legal manual for the use of ecclesiastical courts.32 From this, he appears to conclude that the RP was based a.o. on the Kormchaia, the Ecloga, the Procheiron, the Court Law for the People (ZSL), and the Nomos Georgikos.33 A different, but equally adventurous position was taken by another recent author, E.V. Salogubova, who, like Maksimeiko many years ago, perceived the presence of Roman law in many instances in early Russian law.34 In this connection Baranowski, in his recent magnum opus on the RP, observed that renewed interest among Russian legal historians in Byzantine influences in Russian law is certainly to be welcomed.35 In Western scholarship, the question of Roman or Byzantine influences in early Russian law occurs as a secondary issue in a number of works which provide an overview of the history of Russian law or of a similar broad topic. The answer to the question is then often not sought in a precise examination of the available materials but in a deduction from more general conceptions. Christianity came to Russia through Byzantium, and in the person of Greek bishops and priests steeped in the ecclesiastical law of Byzantium; therefore Byzantine law, and through its prism also Roman law, would have reached Russia in this early period.36 The very few authors who looked more closely at the sources themselves were usually more circumspect in their judgment. A. Soloviev, in a wide-ranging overview of the influence of Roman law in the Balkans and 32

33

V.O. Kliuchevskii’s Kurs russkoi istorii takes up the first five volumes of the 8-volume collected works (Sochineniia), published in Moscow, 1956-1959 (the edition which I have used). His views on the ecclesiastical origins of the RP in Vol.I, 208-209.

Isaev, op.cit., 37, 41.

E.V. Salogubova, “Vliianie rimskogo prava na rossiiskoe grazhdanskoe zakonodatel’stvo”, Vestnik Moskovskogo Universiteta, seriia II. Pravo, 1997, No.2, 29-37, and id., “Elementy rimskogo prava v rossiiskom sudoproizvodstve X-XVII vv.”, Ius Antiquum–Drevnee Pravo, 1999 (No.4), 114-116. The two papers are largely identical.

Baranowski, op.cit, 726.

This appears to have been the view of S. Kucherov in “Indigenous and Foreign Influences on the Early Russian Legal Heritage”, Slavic Review, Vol.31 (1972), 257-282, esp. 280. Also, H. Berman acknowledged a significant influence of Byzantine law on the RP in his well-known work Justice in the U.S.S.R. An Interpretation of Soviet Law, Cambridge, MA (Revised and Enlarged edition), 1962, 192. In an overview “The Romanist Substratum in the Civil Law of the Socialist Countries” (Review of Socialist Law, 1988, 65-86, at 71), R. Sacco recognized the predominantly native Russian character of the RP, but also the direct influence of the Ecloga and the Procheiron. H. Küpper, in his Einführung in die Rechtsgeschichte Osteuropas, Studien des Instituts für Ostrecht München, Band 54, Frankfurt a/M., 2005, 66, acknowledges Byzantine influences in early Russian law, but characterizes them as superficial.

34

35 36


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in Eastern Europe, considered Maksimeiko’s argument “a failed attempt” and concluded that the earliest Russian law showed no signs of Byzantine or Roman influence.37 D. Obolensky, in The Byzantine Commonwealth, concluded that the RP “taken as a whole, shows little evidence of being based on a Byzantine model” and that “Nor has any Byzantine influence been detected in the late medieval Russian codes, the most notable of which are the ‘charters’ of Pskov and Novgorod.”38 The views of D. Hammer have been referred to above. One of the most thorough Western studies of early Russian law has been D. Kaiser’s The Growth of the Law in Medieval Russia.39Although the main subject of this book, as indicated by the title, is legal change, an extensive chapter on the sources of medieval Russian law has been included. This chapter takes account of the important Soviet literature which had appeared after Hammer’s article, and particularly, in its section on the Kormchaia, of Shchapov’s pioneering work, mentioned above. Kaiser’s views on Roman and Byzantine influences could be summarized as follows: Roman law reached medieval Russia through the intermediary of churchmen, and mainly in the form of the Ecloga and the Procheiron, neither of them true to Roman roots. There were some traces of clerical influence in secular law (testimony and inheritance), but “the Roman inheritance that filtered into Russian judicial texts was significantly altered from the Justinianic texts that played an important role in the revival of Roman law in the West”.40 Baranowski, in his recent work on the RP, limited himself to presenting a convenient survey of modern views on the question being discussed here. In accordance with the general format of his work he refrains from expressing an outspoken position, although his overall judgment seems to be that only the Court Law for the People (the ZSL, in its Short Version) is a realistic candidate for having had a significant influence on the RP, and that, additionally, the Ecloga and the Procheiron may have affected individual provisions of the so-called Expanded Pravda (the later and longer version of the RP).41

37

38

D. Obolensky, The Byzantine Commonwealth, Oxford, 1971, 319.

Princeton, 1980.

39 40 41

A.V. Soloviev, “Der Einfluss des Byzantinischen Rechts auf die Völker Osteuropas”, Zeitschrift der Savigny-Stiftung, Romanische Abteilung, Band 76 (1959), 432-479, at 460.

Kaiser, op.cit., 173-174.

Baranowski, op.cit., 724-726.

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3. The Legislation Involved: Roman and Byzantine Law–The ‘Lenders’ What is meant by Roman law or Byzantine law influences? As Hammer has observed, the development of the law of Justinian in the West and particularly in the Middle Ages, of such decisive importance for modern Western law, hardly affected Russian law and may therefore be put aside here.42 The great edifice of Roman law, culminating in Justinian’s Corpus Iuris Civilis (529-535), provided the foundation for the law of the Byzantine empire and practically the only way Roman law could have reached Russia would have been through the intermediary of Byzantine law. In the context of this paper, Roman law therefore embraces the legislation of Justinian itself and the Roman law that preceded it; the subsequent legislation of the Byzantine empire may be regarded as Byzantine law. As we shall see, this would also include ecclesiastical law. Roman Law An occasional author has contemplated the possibility of somebody involved with law and legislation (a judicial official, a monk, a scribe) in medieval Russia having the Corpus Iuris on his table, to assist in deciding a case, copying an obscure legal text, or drafting new laws. The utter improbability of such a scenario is almost universally recognized. The Corpus Iuris (and any other direct sources of Roman law) existed only in a limited number of manuscript copies;43 they would have to be brought from Byzantium, as they would not have been available in Western Europe at the time and cultural contacts with Western Europe were very modest anyway. Even in Byzantium, a sufficient knowledge of Latin to read legal texts had become a scarce commodity.44 Moreover, socio-economic circumstances differed radically and although this would not per se prevent borrowing, it is hard to think of any serious advantage early medieval Russian law could reap from the study of Roman law. If Roman law came to Russia in this period, it could only have been through the vehicle of Byzantine law.

42 43

Hammer, op.cit., 5-6.

44

N. van der Wal & J.H.A. Lokin in their Historiae iuris graeco-romani delineatio. Les sources du droit byzantin de 300 à 1453, Groningen, 1985, 99, accept the probable availability of copies of the Institutes, the Digest and the Code of Justinian in Constantinople in the middle of the 11th century, but consider it very uncertain whether the experts concerned would be able to read them.

Ibidem, and 63 (as regards the 7th century) and 72 (concerning the period of the iconoclast emperors, 717-842).


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Secular Byzantine Law: a. The Nomos Georgikos or Farmer’s Law In connection with medieval Russian law, the first significant secular legislative document in Byzantium after the Corpus Iuris was the Nomos Georgikos (Lex rustica) or Farmer’s Law. This law, consisting of 85 articles (in the oldest available and most reliable version), creates a vivid picture of the life of small and independent farmers and the manifold disputes and collisions that could arise among them. A minor part of its contents can be traced to the law of Justinian and earlier Roman law, but there are also influences from Old Testament (Mosaic) law. A considerable part of its contents seems to reflect customary law.45 There is still much disagreement about all the external aspects of the Farmer’s Law. Its authorship is unclear, as well as the time and place of its origin. There are now few supporters of the theory that ascribes the law to Justinian II Rhinotmetes (685-695, 705-711), and a somewhat later date, in the beginning of the era of the iconoclast emperors, is preferred. Whether it was promulgated as an official law or represents the work of private persons is uncertain. There can be no doubt, however, that after its reception in Russia it was regarded as a genuine piece of Byzantine legislation. The so-called Slavic-Russian version of the Farmer’s Law constitutes the greater part of a manuscript collection known as the Knigi Zakonnye (Law Books). The other parts of the collection are the “Law on penalties” (Zakon o kaznekh), a law “On divorce” (O razdelenii brakom), and the “Chapters on witnesses” (Glavy o poslusekh).46 (More on the Knigi Zakonnye below.) The Farmer’s Law is one of the three Byzantine leges speciales, of which the Lex Rhodia and the Lex militaris represent the other two, all dating from the same era. The Lex Rhodia, of great importance in the development of maritime law, was of little interest to a land-logged legal system such as that in medieval Russia (although it was included in several medieval Russian manuscript collections). The same goes for the Lex militaris. 45

46

I.P. Medvedev (ed.), Vizantiiskii Zemledel’cheskii zakon. Nomos Georgikos, Leningrad, 1984. This edition contains an extensive historiography (also of Western scholarship), annotated texts of the main Greek manuscripts and a Russian translation, an extensive commentary (by E.E. Lipshits), the Slavic-Russian text of the Law with notes and comments, and various additional materials. See, also, van der Wal & Lokin, 65, 73-75, and I.P. Medvedev, Pravovaia kul’tura vizantiiskoi imperii, S.Peterburg, 2001, 148-150; Included with comments by Lipshits in Medvedev, Zemledel’chskii zakon, 233-259. Briefly on the Knigi Zakonnye also Kaiser, Growth of the Law, 144-145.

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b. Ecloga47 Taken at face value, the Ecloga is a law code of modest size, mainly devoted to private law, and promulgated by the emperors Leo and Constantine.48 As its date, the years of 726 and 741 are mentioned, depending on the manuscript used.49 After a lengthy preamble, the first 16 chapters (titles) of the Ecloga deal with various civil law topics, including family and inheritance law. The preamble points in particular to the fact that the mass of preceding legislation had become incomprehensible to judges outside the capital itself. The Ecloga is therefore to be understood primarily as a paraphrasing of the practically most important legislation in simpler language, and not so much as a major law reform.50 Its contents can be traced back to the Corpus Iuris and subsequent imperial legislation, with a few exceptions. Most innovations are contained in the 2nd and 17th chapters, devoted respectively to matrimonial and criminal law. They are also by far the longest chapters. In the 17th and longest chapter, corporal punishment and various amputations constitute the standard penalty, along 47

48

Cf. L. Burgmann (ed.), Ecloga: Das Gesetzbuch Leons III. und Konstantinos’ V, Frankfurt a/M., 1983 (not available to me). See, also, van der Wal & Lokin, 72-73, and a useful bibliography at 132. E.E. Lipshits, Ekloga. Vizantiiskii zakonodatel’nyi svod VIII veka, Moskva, 1965, presents a Russian translation, an introduction and comments, and extensive other explanatory and bibliographical materials. See, also, I.P. Medvedev, Pravovaia kul’tura, 138-148. An older but still valuable Russian source is V.G. Vasil’evskii, “Zakonodatel’stvo ikonobortsev”, Trudy V.G. Vasil’evskogo, IV, Leningrad, 1930, 139-235 (originally written and published in the beginning of the 20th century, but republished by the USSR Academy of Sciences).

49

Leo III, also known as Leo the Isaurian, was emperor from 717 to his death in 741. His son Constantine V, nicknamed Copronymus, was born in 718 and crowned co-emperor in 720. He ruled from 741 until his death in 775. They were the first iconoclast emperors.

50

Lipshits, Ekloga, 16-18, refers to a study by D. Ginis (“Das Promulgationsjahr des isaurischen Ecloge”, Byzantinische Zeitschrift, Band 24, 1924) which demonstrates (according to Lipshits) clearly that 726 is the correct date. Van de Wal & Lokin (132) point to a paper by O. Kresten (“Datierungsproblemen isaurischer Eherechtsnovellen”, Fontes minores IV, Frankfurt a/M., 1981, 37-106) which they believe settles the matter ultimately in favour of the 741 date. For the purpose of our study, the question is not of great relevance. I note the point made by Vasil’evskii (173) that the Ecloga (XVII, 52) prescribes the death penalty for Manichaeans and Montanists, but is silent about icon worshippers. As the Ecloga was promulgated in March, this would favour the 726 date, because Leo’s iconoclast policies began to be applied later on in the same year and remained a major concern all through his reign.

Cf. van de Wal & Lokin, 72-73, who stress this point against what they consider to be the erroneous view of Zachariae von Lingenthal and his followers in the 20th century, such as Lipshits (Ekloga, 8ff.), who insist on the reforming character of the Ecloga. I am inclined to occupy a middle position: if it did not constitute a major change of course, it was not just a change of words.


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with double fines for minor offences. The Corpus Iuris content amounts to about two-thirds of the chapter. One provision (XVII, 40) is almost identical with article 57 of the Farmer’s Law,51 otherwise, as many authors have noted, there is no overlap between the two laws. This might suggest that the Farmer’s Law was already in operation at the time the Ecloga was written and that there was no need to provide regulation for typically agriculture-connected topics. There is a short final (18th) chapter on the partition of war booty. In the course of the 8th century, several revised versions of the Ecloga saw the light, the Ecloga aucta, also known as the Eclogadion, the Ecloga privata and the Ecloga privata aucta. The Appendix Eclogae consists of a considerable number of texts of various origin, added on to manuscripts of the Ecloga in one of its forms.52 Of a later date is the so-called Ecloga ad Procheiron mutata, a text which is closer to the latter than the former.53 c. Basilika54 The Basilika, the Epanagoge and the Procheiron are all from the same period, the end of the 9th century, the reign of the first two Macedonian emperors, Basil I (867-886) and Leo VI the Wise (886-912). There are various theories about their relationship, although this matter is of no great relevance for the central question in this chapter. The most recent and by now dominant theory is that the most ambitious codification programme in Byzantium since the Corpus Iuris was started by Basil I, with the aim to provide a complete and systematized Greek restatement of the law. This ultimately resulted during the reign of Basil’s son Leo the Wise in the completion of the Basilika, a huge collection divided into 60 books.55 Already during the reign of Basil, the need was felt to have also a more concise and convenient summary of the law. This need was met 51

52

On arson or cutting down trees in somebody else’s wood, possibly based on D.47,7,1.

Cf. van der Wal & Lokin, 75-76; Medvedev, Pravovaia kul’tura, 152-167.

Cf. van der Wal & Lokin, 94.

The following short survey of the Basilika, the Epanagoge and the Procheiron is based mainly on Medvedev, Pravovaia kul’tura, 167-187, whose argument in turn is based especially on A. Schminck, Studien zu mittelbyzantinische Rechtsbüchern, Frankfurt a/M., 1986. Previously, the names of the emperors cited in the beginning of the Procheiron and the Epanagoge provided the main argument for dating these two texts as from the 870-879 period, the Procheiron being considered the earliest of the two. Cf., for instance, van der Wal & Lokin, 78-81.

The publication of the Basilika in 17 volumes has been achieved by a group of scholars from the University of Groningen, H.J. Scheltema, N. van der Wal & D. Holwerda (eds.), Basilicorum libri LX, Series A (Textus), Vols.I-VIII, Groningen, 1953-1988, Series B (Scholia), Vols.I-IX, Groningen, 1953-1988.

53 54

55

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at first by the Epanagoge, written under the direction of the energetic and learned patriarch Photius in 885-886.56 Because certain parts of the Epanagoge were politically unpalatable to the emperor, Leo the Wise had another summary drawn up in 907-908, the Procheiron. The Basilika was based on the law of Justinian, not the original Latin text of the Corpus Iuris, but as it had come down through various Byzantine (Greek) works. Of course it also incorporated later Byzantine legislation in the form of imperial constitutions. The question of its character has been debated extensively. Modern lawyers are conditioned by a strictly circumscribed concept of law, but such views may not be quite adequate for understanding legal sources from other times and other cultures. According to present-day definitions, the Basilika is not to be regarded as legislation, but rather as a work of reference. Only much later, in 1175, was it officially recognized as a source of law. On account of the respective sizes of the works, the Basilika is of course of much less interest in connection with medieval Russian law than the more convenient and user-friendly Epanagoge and Procheiron. There are no indications that the Basilika ever came to Russia during this period and nobody has ever suggested that it did influence medieval Russian law. d. Epanagoge (Eisagoge) The 40 titles (chapters) of the Epanagoge (“Restoration”, “Returning”, sc. to the ‘pure’ law of Justinian) correspond to the 40 books of an earlier stage of the Basilika. Of particular interest are the chapters 2 and 3, which put forward a view on the position of the emperor and of the patriarch where these two appear as more or less equal partners. This theoretical approach obviously reflected the ambitions of the patriarch Photius, but at the same time it ensured that the Epanagoge would never acquire the status of a law. The following chapters cover many areas of private law and procedure, the 40th chapter is devoted to criminal law. They generally return to the old law of Justinian by offering a more literal Greek rendering of the Corpus Iuris texts. e. Procheiron The Procheiron or Procheiros nomos (the “law at hand” or the “law handbook”) was (according to more modern theories) produced under the direction of Leo VI, with the specific additional purpose of getting rid of Photius’ unacceptable statements on the church-state relationship. According to its lengthy introduction, it was explicitly meant to replace the Ecloga and to return to the old law of Justinian. It was more than twice the size of the 56

As Medvedev notes (176), the proper name is actually Eisagoge (“Introduction”), but as Epanagoge is the name which has been in use in the literature for very many years, I shall conform to this usage.


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Ecloga, numbering 40 chapters (titles). The 39th chapter covered criminal law and took over many of the innovations of the Ecloga. The 40th chapter, on war booty, was identical to the last chapter of the Ecloga.57 Otherwise, its contents parallel those of the Epanagoge. The Russian translation of the Procheiron included in several medieval Russian collections is sometimes named the “City Law” (Zakon gradskii). f. Epitome In the first year of the reign of the emperor Romanus Lecapenus (920-944) another collection of legal texts appeared, known by the name of Epitome, which contained texts of Corpus Iuris provenance, quite similar to those included in the Epanagoge and the Procheiron, texts from the Procheiron itself, and a few others.58 Byzantine Canonical (Ecclesiastical) Law For the modern lawyer, as pointed out above, law is a clearly defined body of rules which exist because they have been created or at least officially sanctioned by the state. Of course, this view is nuanced nowadays by the admission that a certain grey area may occur, where we find such things as ‘soft law’, obsolescent rules, unenforced prohibitions, etc. But the blurring of the concept of legislation, which a study of ancient and medieval legal sources occasionally seems to suggest, is more difficult to accommodate in a modern understanding of law. A very much related feature is the concurrence of more or less equivalent legislatures in a single jurisdiction as this emerged in the early Christian world. Patterns of church-state relations varied widely in this world, but the dominant position of the church in certain areas of the law was a common factor. In the Eastern Christian world, as distinct from early medieval Western Europe, the symbiosis between church and state was more intimate, more complex and longer-lasting. The church, as an organization functioning in the secular world, needed rules. Some of these were derived directly from Scripture, mainly the Old Testament and especially the book of Exodus. But then the church councils, particularly the ecumenical councils which were held before the Eastern and Western churches drifted apart, had formulated more detailed rules about personal life and the organization of the church itself. Some of these rules concerned matters (family relationships in particular) which had previ57

58

Cf. Medvedev, Pravovaia kul’tura, 178-182; van der Wal & Lokin, 78-79. A Russian translation of the Procheiron was included in the collection of the Merilo Pravednoe (see below); see M.N. Tikhomirov (ed.), Merilo Pravednoe v rukopisi XIV veka, Moskva, 1961, 463-663 (ms. 231-331).

Cf. van der Wal & Lokin, 90.

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ously remained outside the scope of the state’s regulation, having been a matter of time-honoured custom. In other areas the state, or rather the ruler, who understood himself as a Christian prince, ruling by the grace of God, was content to leave regulation to the church. At the same time, one should keep in mind that the secular and spiritual rulers in Byzantium (the emperor and the patriarch), and later on in Russia as well, did not operate in separate spheres but were continually involved in numerous common issues where they co-operated, quarrelled, pulled together or against each other, in short, inter-related intensively. Many constitutiones (legislation of the Byzantine emperor) regulated issues which one would regard as canon law. The Early Collections up to the Nomocanon XIV titulorum59 At the time the great codification of Justinian, the Corpus Iuris, was being completed (534), work was under way to collect the church canons into a single volume. The result was the Collectio LX titulorum, the text of which has not survived.60 This collection was probably provided with an appendix, which has survived and goes by the name of Collectio XXV capitolorum. It contained secular law affecting the church, taken from the Corpus Iuris. A new collection of canon law was put together by John the Scholastic around the year 550 (he became patriarch of Constantinople in 565, the year of emperor Justinian’s death). This Collectio L titulorum contained the same materials as its predecessor (with a few additions), but the various council decisions were systematized and distributed over 50 chapters. The author added an appendix, the Collectio LXXXVII capitolorum, consisting of fragments of Justinian’s Novellae relating to ecclesiastical subjects.61 The third collection was probably compiled by John the Scholastic’s successor as patriarch of Constantinople, Eutychius, and dates from around 580. Some new materials were added to this Syntagma canonum, but the major innovation was that it had been divided into two parts: a systematic survey consisting of 14 chapters, and then a full collection of texts. Again, an appendix of secular law had been added, the Collectio tripartita, which did not offer a selection of actual imperial legal texts but instead a more systematic survey of legislation concerning the church, divided into three 59 60

61

This part of the survey is based on van der Wal & Lokin, 51-54, 60-62, 66-70.

The Collectio LX titulorum embraced the so-called 85 canons of the apostles, the 193 canons of 8 church councils forming the old corpus canonum, the so-called canons of the Council of Ephesus (431), and the canons of the Council of Sardica (343). The greater part of the collection is taken up by Novella 123 “De sanctissimis episcopis et Deo amabilibus et reverendissimis clericis, et monachis”.


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parts (hence the name). Most of the material of the Collectio tripartita goes back to the Corpus Iuris, but it also embraced later novellae. A new version of the Syntagma canonum was the result of the work of an author known as the Anonymus or Enantiophanes.62 He merged the canon law properly speaking, which had been the subject matter of the previous collections, with the secular law pertaining to the church, which had previously been located in appendices. References to the latter law were included in the systematic survey of the 14 chapters. This part of the Syntagma (together with the collection of texts which followed it) later on became known as the Nomocanon or more exactly, the Nomocanon XIV titulorum. The three secular law collections (the Collectio XXV capitolorum, the Collectio LXXXVII capitolorum, and the Collectio tripartita) are found after the texts of the canons in most manuscript versions of this revised Syntagma. This revision of the Syntagma has probably been realized at some time within the period between 612 and 629. Not much later, the Collectio L titulorum of John the Scholastic was revised in a similar way, which resulted in the Nomocanon L titulorum. Other, hybrid versions of the Nomocanon appeared later on. Subsequent Developments in Byzantine Canon Law In 692, a council of the Byzantine church was held in the imperial palace in Constantinople; it is known by the name of Quinisextum, or in Trullo (the name of the hall in which it was held). One of the most important canons adopted contained a list of recognized sources of canon law. This list corresponded to a large extent with the contents of the Syntagma canonum, but added some new materials. No great change in canon law occurred during the iconoclast period. A revised version of the Syntagma was adopted after 787, called the Redactio systematica sive Tarasiana. After the death of patriarch Tarasius (in 806), another redaction appeared which included the decisions of the second Council of Nicea (of 787). This Syntagma has been of particular importance in connection with the compilation of the first Slavonic translation of the Nomocanon.63 62

63

There is also an older Anonymus, a Byzantine scholar from the age of Justinian. The designation Enantiophanes, “somebody who appears to be opposed or contrary to something”, is apparently not a real name.

This redaction is not mentioned by van der Wal & Lokin, but Shchapov, Vizantiiskoe, 53, points out that this redaction (called the Third Redaction by him) contains the Second Nicea Council decisions (which are absent in the 790 Syntagma) and lacks the letter by patriarch Tarasius to pope Adrian in 790, which is included in the 790 Syntagma.

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The Syntagma canonum was modernized in 883 by the inclusion of new materials, particularly the 102 canons adopted by the Quinisextum council. The Syntagma of 883 has for a long time been ascribed (incorrectly) to the patriarch Photius, mentioned above. A new revision of the Syntagma in 1089/1090 by Theodore Bestes added the full text of the secular laws pertaining to church matters to the Nomocanon. The twelfth century is characterized by the activities of three important authors who each contributed extensive commentaries to the by then vast body of Byzantine canon law: Zonaras, Aristenes and Balsamon.64 Summary of Byzantine Canon Law The reader who has now come to the conclusion that Byzantine canon law was confusingly complicated, has a point. The following text therefore summarizes the narrative of the foregoing pages. (a)

Collectio LX titulorum (around 534, text did not survive): 85 canons of the apostles, 193 canons of 8 church councils, forming the old corpus canonum, canons of the councils of Ephesus and Sardica; an appendix containing secular law pertaining to the church: the Collectio XXV capitolorum (survived). (b) Collectio L titulorum (of John the Scholastic, around 550): same materials as (a), with some additions, but systematically arranged in 50 chapters. An appendix, called the Collectio LXXXVII capitolorum, consists of fragments of Justinian’s Novellae, pertaining to ecclesiastical subjects. (c) Syntagma canonum (probable author: Eutychius, around 580): same materials as (b), with some additions, but subject matter divided into two parts, a systematic survey consisting of 14 chapters, followed by a full collection of texts. An appendix, consisting of three parts (the Collectio tripartita), contains, not a collection of actual secular legal texts, but a systematic survey of legislation concerning the church. The material referred to in this Collectio tripartita is mostly from the Corpus Iuris, but also from later novellae. (d) Revised Syntagma canonum (between 612 and 629, Anonymus or Enantiophanes): different organization of the material. References to secular law pertaining to the church were now included in the first part, the systematic survey of canon law consisting of 14 chapters; this was followed by the texts of the canons, and the third part consisted of the three earlier collections of secular law (as 64

Cf. van der Wal & Lokin, 108-112.


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mentioned in (a), (b) and (c)). The first two parts together became known as the Nomocanon XIV titulorum. (e) The Redactio systematica sive Tarasiana, in or shortly after 790: minor additions. (f) The Third Redaction (in the terminology of Shchapov), around or shortly after 806: added decisions of the Second Council of Nicea of 787. (g) The Syntagma canonum of 883: added the canons of the Quinisextum and some other texts to d. (h) Secular law texts were added to the Nomocanon by Theodore Bestes in 1089/1090.

4. The Legislation Involved: Russian Law– The ‘Borrowers’ The Court Law for the People The Court Law for the People (Zakon Sudnyi liudem, ZSL) occupies a middle position between ‘lenders’ and ‘borrowers’. It is neither a Byzantine, nor a Russian law; its content is predominantly Byzantine, but it functioned exclusively in medieval Russia. It is, therefore, most conveniently treated at this particular place. The ZSL has survived in three different versions or redactions, the Short (Kratkii), Expanded (Prostrannyi) and Concordance (Svodnyi) ZSL. Of these redactions, the Short one is unquestionably the oldest.65 Most copies of the Short ZSL have been found in various kormchie (the Russian Nomocanon) and some others in Merilo Pravednoe manuscripts.66 There are several theories about the place of origin of the ZSL (Moravia, Bulgaria, Macedonia), but it is generally accepted that the text (of the Short ZSL, or its predecessor) reached Russia before the 13th century. As the date of its origin, the different theories mention 862, 866-868, and a time between 830 and 840.67 65

66

The principal editions of the Short ZSL are: M.N. Tikhomirov (ed.), Zakon Sudnyi liudem Kratkoi redaktsii, Moskva, 1961; V. Ganev, Zakon Soudnyi Liudŭm, Sofia, 1959; H. Oroschakoff, “Ein Denkmal des bulgarischen Rechts”, Zs. f. vergl. Rechtsw. Vol.33 (1916), 141-282. An English translation with introduction and commentary by H. Dewey and A. Kleimola has been published as Zakon Sudnyj Ljudem (Court Law for the People), Michigan Slavic Materials, No.14, Ann Arbor, MI, 1977.

67

On the Merilo Pravednoe (“Just Measure”), see Kaiser, The Growth of the Law, 23-25. A facsimile edition of the oldest manuscript, of the middle of the 14th century, has been published by Tikhomirov: M.N. Tikhomirov (ed.), Merilo Pravednoe po rukopisi XIV veka, Moskva, 1961.

The Moravian theory opts for 862 or slightly later; according to the Bulgarian theory

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The Short ZSL is almost completely based on the Ecloga; only for the introductory provisions (chapters 1 and 2) and the end of the last chapter 33 no close parallels can be found. Moreover, the Short ZSL borrows almost exclusively from Title 17 of the Ecloga, the chapter on criminal law. Not only is there great textual similarity, but also the sequence of the provisions is more or less maintained. The principal innovation is in the system of penalties. Corporal punishment is frequently replaced by other penalties and there is also a peculiar system of two-track penalties, secular as well as ecclesiastical (church penance). The inclusion of the Short ZSL in collections with strong church connections has suggested to most commentators that the text must have been in use with ecclesiastical courts. The Expanded ZSL has probably been compiled in Russia during the first half of the 14th century, according to Tikhomirov, the principal Soviet scholar in the study of the ZSL.68 The Short ZSL has been incorporated in the Expanded ZSL, sometimes with amendments. Other provisions have been taken from the Ecloga, the Procheiron, and other sources. The Concordance ZSL is known from a single copy included in a manuscript from 1402. It consists of an amalgamation of the texts of the Short and the Expanded ZSL. The Russian-Byzantine Treaties In the oldest and most famous Russian chronicle, known variously as the Primary Chronicle (Nachal’naia letopis’), the Tale of Bygone Years (Povest’ vremennykh let), or the Nestor Chronicle, the entries for the years 907, 912, 945 and 971 contain the texts of what purport to be treaties between the earliest Kievan princes and the Byzantine emperor.69 The treaties were apparently the outcome of negotiations following Russian raids against the original ZSL was enacted by the first Christian ruler, tsar Boris, in 866-868; the 830/840 date in the Macedonian theory is connected with the view that the ZSL was an adaptation of the Ecloga, intended for irregular Slav troops in the service of Byzantium.

68

69

Cf. M.N. Tikhomirov (ed.), Zakon Sudnyi liudem Prostrannoi i Svodnoi redaktsii, Moskva, 1961.

The principal copies of the Primary Chronicle are the Laurentian and the Hypatian manuscripts. They have been published as the first and second volumes of the Polnoe Sobranie Russkikh Letopisei by the Archeographical Commission in S.Peterburg in 1846 and 1843 (reprints Leningrad, 1926 and 1923). English translation of the Laurentian Copy by S.H. Cross & O.P. Sherbowitz-Wetzor, The Russian Primary Chronicle. Laurentian Text, Cambridge, MA, 1973. Translation of the four treaties also in D.H. Kaiser, The Laws of Rus’–Tenth to Fifteenth Centuries, Salt Lake City, 1992.


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Constantinople.70 Among the numerous questions which surround these treaties many still remain unsolved.71 For our purpose only the treaties of 911 and 944 (the correct dates according to most experts) are of interest.72 They both provide a kind of miniature law code for the various legal problems that could arise in Russian-Greek contacts (homicide, assault, theft, runaway slaves, trade regulation, shipwreck, inheritance, etc.). The ‘Russian Law’ (Russkaia Pravda) (See, also, Chapter 2) Together with the Primary Chronicle, the Russkaia Pravda (RP) constitutes the principal written monument of Kievan Rus’. Most surviving copies of the RP have come down to us as parts of kormchaia manuscripts, others have been included in manuscripts of chronicles and of collections such as the Merilo Pravednoe (see above and below). Literature on the RP goes back to the 18th century when it was rediscovered by V.N. Tatishchev and has by now grown into a vast body.73 The first impression received upon acquainting oneself with an RP text is that it is not unlike the texts of the early medieval Germanic laws, such as the Anglo-Saxon laws or the so-called leges barbarorum. The next thing one notices is that that are in fact two different RP texts, a shorter and a 70

71

The texts of the treaties have only been transmitted through the Primary Chronicle. Byzantine sources do not even mention the raids (if there were in fact two) of 907 and 911.

72

A.N. Sakharov, Diplomatiia Drevnei Rusi. IX–pervaia polovina X v., Moskva, 1980, provides a good introduction to the very extensive literature. See, also, I. Sorlin, “Les traités de Byzance avec la Russie au Xe siècle”, Cahiers du Monde Russe et Soviétique, Vol.II (1961), 313-360, 447-475.

73

The texts of the four treaties have been published separately in PRP I, Moskva, 1952, 3-72; also in M. Vladimirskii-Budanov (ed.), Khristomatiia po istorii russkago prava, Vyp.1, S.Peterburg (5th ed.), 1899, 1-22.

A recent and extensive bibliography, covering both Russian-language and Western scholarship, in G. Baranowski, Die Russkaja Pravda–ein mittelalterliches Rechtsdenkmal. Rechtshistorische Reihe, Band 321, Frankfurt a/M., 2005, 741-769. The basic edition is still B.D. Grekov (ed.), Pravda Russkaia, Part I: Teksty, Moskva/ Leningrad, 1940; Part II: Kommentarii, Moskva/Leningrad, 1947; Part III: Faksimil’noe vosproizvodenie tekstov, Moskva, 1963. The first volume of the PRP (see above) is mostly devoted to the RP and offers texts, notes, commentaries, tables etc. Other basic studies on the RP are: M.N. Tikhomirov, Issledovanie o Russkoi Pravde. Proiskhozhdenie tekstov, Moskva/Leningrad, 1947; M.N. Tikhomirov, Posobie dlia izucheniia Russkoi Pravdy, Moskva, 1953; S.V. Iushkov, Russkaia Pravda. Proiskhozhdenie, istochniki, ee znachenie, Moskva, 1950; A.A. Zimin, Pravda Russkaia, Moskva, 1999. English translation, occasionally controversial, by G. Vernadsky in his Medieval Russian Laws, New York, 1947. A new English translation is offered by D. Kaiser, The Laws of Rus’–Tenth to Fifteenth Centuries, Salt Lake City, 1992.

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longer one.74 These are generally known as the Short and the Expanded Pravda. The 40-odd provisions of the Short Pravda (the number varies, according to the numbering system employed) return in the Expanded Pravda (with a few exceptions), but usually in an edited version and not as a single block, but dispersed through the text of the Expanded Pravda. The Short Pravda is generally considered the older of the two, at least its older parts.75 It quite clearly consists itself of several chronological layers. Its first 18 provisions76 are known as the Oldest Pravda (Drevneishaia Pravda) or the Pravda of Iaroslav. After article 18 follows a kind of preamble which precedes the second half of the Short Pravda: “Law established for the Russian land when Iziaslav, Vsevolod, Sviatoslav, Kosniachko, Pereneg, Mikyfor the Kievan [and] Chiudin Mikula met together.” The first three persons were sons of Iaroslav who together succeeded him.77 The second part of the Short Pravda is, accordingly, known as the Pravda of Iaroslav’s Sons (Pravda Iaroslavichei). The Pravda of Iaroslav itself probably also consists of at least two distinct layers, the first ten articles, which are very reminiscent of similar Germanic laws, and the following eight articles which form a less consistent block. The Pravda of Iaroslav’s Sons is primarily concerned with the protection of the prince’s servants and property. The Short Pravda is concluded by two separate provisions, the pokon virnyi (the law on the payment of bloodwite) and the urok mostnikov (the bridgebuilders’ statute). The origin of at least the first half of Iaroslav’s Pravda is often sought in certain events in Novgorod in 1016. Tikhomirov has argued that the full text of Iaroslav’s Pravda was enacted or at least composed in 1036. For the Pravda of Iaroslav’s Sons, the year 1072 is usually accepted. The final compilation of the Short Pravda could have taken place (according to Tikhomirov78) during the reign (1117-1136) of Vsevolod Mstislavich, prince of Novgorod. 74

75

And even three, if one also counts the so-called Abridged Pravda (Sokrashchennaia Pravda), a text of much later origin, which will be left aside in this paper.

76

11 of the 13 available copies of the Short Pravda are recent (18th and 19th century). The two older copies, the First Academic Copy and the First Archeographical Copy, date from the middle of the 15th century and form part of different manuscripts of the First Novgorod Chronicle (in the so-called Younger Version).

77

Using the by now generally accepted system employed in the Academy of Sciences edition.

78

The version in art.2 of the Expanded Pravda is much clearer to a modern reader: “After Iaroslav, his sons got together again: Iziaslav, Sviatoslav, Vsevolod and their men: Kosniachko, Pereneg [and] Nikifor […].”

Tikhomirov, Issledovanie, 74-78.


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The composition of the Expanded Pravda is perhaps even more complex than that of the Short Pravda. Superficially, there are two main parts, each preceded by a title-heading in most of the manuscripts, the first part bearing the title “The Law [Sud] of Iaroslav Volodimerich—Pravda Russkaia”, the second one “The Law [Ustav] of Volodimer Vsevolodich”. There is no doubt about the identity of the second legislator either: the famous Kievan prince Vladimir Monomakh, who ruled as grand prince from 1113-1125. Most of the provisions taken over, albeit in amended form, from the Short Pravda are indeed found in the first part of the Expanded Pravda, but some turn up in the second part. Only a section of the second part is considered the actual Law of Monomakh. Within the Expanded Pravda certain clusters of provisions can be identified, devoted to a particular topic, such as interest, slaves, inheritance law, etc. These clusters of provisions will have arisen at different dates, the oldest layer of course being the rules that can be traced to the oldest part of Iaroslav’s Pravda. Several partial codifications or consolidations may have occurred, until finally all the elements were brought together into what came to be known as the Expanded Pravda. The question is also complicated by the existence of more than 100 copies of the Expanded Pravda. They have been divided into different groups and families, and the differences among them are sometimes considerable. All of which makes it more difficult to make general statements about the Expanded Pravda. As to the time of the final compilation of the protograph of the Expanded Pravda, an indisputable terminus ante quem is 1280, the date of the earliest manuscript copy of the Expanded Pravda. Various other dates have been suggested after 1125 (death of Monomakh): 1160-1168, or 1210-1215.79 The Church Statutes of the Princes According to the Primary Chronicle, in the entry for the years 994-996, the Kievan grand prince Vladimir had a church built in honour of the Mother of God and pronounced: “I bestow upon this church of the Holy Virgin a tithe of my property and of my cities.” He then wrote out a donation and deposited it in the church, declaring: “If anyone violates this promise, may he be accursed.” More than 200 copies of the Church Statute of Vladimir are extant, dating from the 14th to the 19th century, most of them included in kormchie, and it is generally assumed that it, or rather its oldest nucleus, is the deed referred to in the Chronicle. Through the ages

79

Cf. Tikhomirov, Issledovanie, 225. If one accepts the view of most commentators that the treaty between Smolensk and Riga (see the chapter on treaties) of 1229 bears traces of RP influence, then an earlier date is indicated.

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numerous additions have been made, but a reconstruction of the most likely original text indicates two main points that probably constituted a very short text as the initial nucleus.80 The first is the bestowal of tithes upon the church in Kiev. This favour was soon extended to all churches. The second element which probably goes back to the time of Vladimir is the granting of exclusive jurisdiction to the church in certain matters concerning the family and morality in general (offences against sexual morality, church thefts, witchcraft, etc.). At a later stage, a third element may have been added: exclusive church jurisdiction in all matters over persons connected with the church.81 The second major text in this category is known as the Church Statute of Iaroslav. The majority of the more than 90 copies of this text form part of kormchie, other copies have been included in chronicles and other collections. The oldest copies are from the second quarter of the 15th century. The textual history of the Church Statute of Iaroslav is much more complicated than that of the Church Statute of Vladimir; at this point, it will be sufficient to summarize some of the findings of Shchapov, who carried out the most detailed study of the various church statutes.82 The bulk of the provisions of the Statute (which is much longer than that of Vladimir) are what we would regard as criminal law: definitions of offences and the appropriate penalties. It completes what was only indicated in a general way in Vladimir’s Statute (certain types of offences being assigned to church jurisdiction) by defining these offences and setting the penalties. It complements the RP, which regulates the purely secular types of offences. Most penalties consist of fines forfeited to the church, but in a smaller number of cases the formula “and the prince shall punish” is added. According to Shchapov, the key to understanding the Statute of Iaroslav 80

81

82

Reconstruction of the original text in Shchapov, Kniazheskie ustavy, 120-121. Also in PRP I, 235-256; RZ I, 137-162; V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava, I, Petrograd, 1915, 59-77. The works of Ia.N. Shchapov provide a very full treatment of the so-called church statutes and discuss all previous literature: Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi XI-XIV vv., Moskva, 1972 (the basic study), and Ia.N. Shchapov (ed.), Drevnerusskie kniazheskie ustavy XI-XV vv., Moskva, 1976 (text edition). Reconstruction of the original text in Shchapov, Kniazheskie ustavy, 293-296. See, also, PRP I, 257-285; RZ I, 163-208; Beneshevich, op.cit., 78-89. The reconstruction of the original text (archetype) starts from a comparison of the so-called Expanded Redaction, which emerged in the 12th century or the beginning of the 13th century, and the Short Redaction, which is from the middle of the 14th century (Shchapov, 257 and 243). The two redactions do not differ as much as the short and expanded redactions of the RP do; the Expanded Redaction of the Statute of Iaroslav is about one-quarter longer. Both redactions are independent modernizations of the archetype.


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is the close connection between church and state. The prince assigned a very sizeable section of jurisdiction and the income to be derived from it to the church, which functioned in this context virtually as a department of the state. A point of special interest in Iaroslav’s Church Statute is its explicit reference to the Greek Nomocanon. In its preamble, Iaroslav states that he consulted with metropolitan Ilarion and that he “referred to” (slozhil esm’) the Greek Nomocanon. The original nucleus of Iaroslav’s Church Statute may tentatively be dated to the period between 1051 (the accession of Ilarion, the first Russian metropolitan of Kiev) and 1054 (death of Iaroslav).83 Several other princely charters dealing with church matters exist, of which the earliest and most relevant for the present study are the charters of 1137 of prince Rostislav Mstislavich of Smolensk, of prince Sviatoslav Ol’govich of Novgorod, also of 1137, and perhaps also the Church Statute of Vsevolod.84 The three documents are along the lines of the Church Statute of Vladimir, in granting privileges and sources of income to the church, but provide much local detail.

5. Roman/Byzantine Influences: Where and When The question of what is to be understood by “influence” is complicated. As pointed out above, we shall recognize the presence of influence, in the context of this paper, when an awareness of certain legal institutions or ideas has had an effect on the formation of other legal institutions or ideas. As in ordinary parlance, influence may range from 100% to zero and, in law, innumerable varieties may occur. One country may take over a certain part of another country’s law, or only certain provisions. The take-over may be literal, verbatim, or the law may be rephrased, retaining its essential features. The borrowed rule may be significantly changed. Influence would still be there, but harder to detect, where the legislator has contemplated a foreign rule and then decided to adopt a quite different solution to the legislative dilemma. One could also speak of influence when the organization of legislation or part of a legal system is taken over, or a particular style of legal reasoning, without leaving any clear verbal traces in the new laws. Of course, the more diffuse influence 83

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Shchapov, Kniazheskie ustavy, 302-306. This appears to be supported by M. Szeftel & A. Eck in Documents de droit public …, 249.

Cf. Shchapov, Drevnerusskie kniazheskie ustavy, 140-145, 147-148, and 153-158. See, also, PRP II, 37-53, 116-123, 174-185; RZ I, 224-232, 249-261; Beneshevich, op.cit., 91-98, 102107. There is uncertainty about the identity of prince Vsevolod and more generally about the authenticity of the statute itself.

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is, the harder its presence or absence is to prove or disprove. All this is of relevance to the question of the influence of Roman and/or Byzantine law on early Russian law. Adopting the criminal procedure approach indicated above, one could begin by asking the advocates of Roman/Byzantine influence to present proof of their allegations. The field will then quickly divide into two groups. The first one embraces those who argue from a more general position, without adducing any concrete examples. This group would count among its members important pre-revolutionary authors such as Kliuchevskii, Vladimirskii-Budanov and Solov’ev. The second group consists of those who point to specific rules or institutions in early Russian law which they claim to have been borrowed from Roman or Byzantine law (esp. Maksimeiko and nowadays Salogubova). Some scholars occupy an intermediate position by suggesting only certain fields or topics where they discern Roman or Byzantine influences (e.g. D’iakonov). The general position of the first group can be summarised by reference to the known historical circumstances of the period concerned. Around the end of the 10th century, Russia received Christianity from Byzantium. Greek bishops and clerics came to Russia.85 The Byzantine system of a close symbiosis of state and church was maintained in Russia, albeit in a different form. This symbiosis expressed itself also in the intricate connections between secular and ecclesiastical legislation. In Byzantium, many areas were covered by church law, but at the same time the emperor would often legislate in matters concerning the church. The Byzantine collections of ecclesiastical law (Nomocanon or Syntagma canonum) also contained sub-collections of secular law. The Nomocanon was translated into Old-Slavonic at an early stage. The Greek leaders of the Russian church therefore had rule-books, manuals at their disposal which also contained secular Byzantine law. As “church people” were subject to ecclesiastical jurisdiction in almost all matters and the remainder of the population in regard of a more limited but still ample range of topics (such as marriage and family, inheritance, certain criminal matters), the Byzantine Nomocanon, in its Russian form of the Kormchaia, would be an obvious guide to the church court, and those collections also contained secular Byzantine law with Roman law roots. This, in a general way, is how the penetration of Roman law into medieval Russian law could be argued. Although such a line of reasoning would be insufficient in a criminal trial to prove the charge, this parallel cannot be maintained to the end. The writing of history will always involve the identification of certain 85

According to Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi X–XIII vv., Moskva, 1989, 191-206, of the 24 Kievan metropolitans during the period of 988-1304 only two were Russians.


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reasonably secure data, the construction of a more general view on the basis of such data, and the assumption that other uncorroborated elements would fit into the general view. Where the Russian chronicles report the fall of all the most important Central Russian towns in 1238, one can assume that another town in the same area, not mentioned in the report, was also taken by the Mongols. The burden of proof, so to say, is inverted in such cases. In the matter examined in this chapter, this would mean that, as there is a credible framework for explaining how Byzantine law would have come to Russia, one would actually have to show that there were no significant examples of Roman-Byzantine legal influence in early Russian law. That takes us to the second group, those who point to specific examples of the influence of Roman and/or Byzantine law on early Russian law. The RP is central in this discussion, as the principal monument of early Russian law. After that the Church Statutes of Vladimir and Iaroslav come into purview.

6. The Kormchaia as the Main Vehicle of Byzantine Legal Influence and Other Collections One easily forgets that before printing was invented a written text had to be copied, in order to reach a larger number of people. Accounts, notes, letters, contracts, etc. would normally exist in one copy only and could be kept, if required, in a box or chest.86 For longer texts, especially if they were meant to be consulted time and again, a bound volume would be the most appropriate solution. Some texts (the Old and New Testaments, the Corpus Iuris, a chronicle, etc.) would be long enough to take up an entire volume. But most of the texts discussed in this chapter were not of sufficient length to justify the trouble and expense of binding them separately. They would therefore be combined with other shorter texts to make up a suitable collection. Such collections would also be copied when this would be required, but the copier would of course be free to leave out materials considered irrelevant for the new user and to insert new texts. As a result of this procedure, medieval Russian laws have come down to us in a great variety of ‘convoys’ (as they are called) of other texts, and the manuscript volumes in which they have been inserted have mostly 86

For this reason, such documents have generally survived better in originali than the longer texts which were copied over and over again, and where there was therefore little incentive to preserve the original. The best conditions prevailed in Novgorod, where the bishop was more important than the prince and which was never occupied by the Mongols. When Novgorod lost its independence, its archives were transferred to Moscow, and as a result some 12th century documents have survived. Examples in S.N. Valk (ed.), Gramoty Velikogo Novgoroda i Pskova, Moskva/Leningrad, 1949.

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been produced many centuries after the presumed date of origin of the laws concerned. All the older copies of the Short Pravda are found inserted in the narrative of a chronicle text (the so-called Younger Recension of the First Novgorod Chronicle). The great majority of Expanded Pravda copies forms part of kormchie texts; a smaller number has been included in another important collection of legal texts, the Merilo Pravednoe (the Trinity Recension copies), and also in other ad hoc collections of legal texts (the Pushkin Recension copies) and in chronicle texts (the Karamzin Recension copies). The Church Statutes of Vladimir and Iaroslav are also found mostly in various kormchie, and then also in other collections and chronicles. Among the other collections of legal texts, the ‘Law Books’ or Knigi Zakonnye have been mentioned above in connection with the Nomos Georgikos or Farmer’s Law. The Penetration of the Kormchaia into Medieval Russia In the centuries that followed the division of the Roman Empire and the subsequent collapse of the West Roman Empire, Roman law remained alive in the Eastern, Byzantine empire, although it became gradually byzantinized. Kievan Rus’ could realistically only come into contact with the world of Roman/Byzantine law through its contacts with Byzantium, and, more specifically, with the Greek church, after Russia had adopted Christianity in or around 988. At that time, contacts with Western Europe were sporadic and, moreover, there was hardly any significant presence of Roman law in North-West Europe. Christianization was effected in those days, from the historian’s point of view, in a bilateral process. The receiving party, in practical terms the ruler and his entourage, had to make up its mind that it wanted to be baptized (and no one could deny that political expediency would often be a dominant motive), and missionaries had to be sent from a Christian country that could provide the indispensable services, such as teaching the new faith, performing the liturgy, and setting up a church organization. For Russia, this process is well documented by the various chronicles and in other ways. Greek clergymen came from Constantinople, in the same way as Cyrillus and Methodius had come to Moravia in 862.87 For the 87

Although the format of this chapter prohibits a more detailed discussion, it is worth remembering that in those few years a complex of events occurred which were of the greatest consequence for Russian history too: the legendary arrival of Rurik, the ancestor of the rulers of Kievan Rus’; a major Russian (or rather Varangian) raid on Constantinople; the conversion of the Moravians; the climax of the career of Photius, one of the most brilliant and unscrupulous Byzantine patriarchs; the baptism of the Bulgarian khan Boris in Constantinople by Photius, with the emperor Michael acting as godfather.


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Christian religion, Holy Scripture was an essential element, but, besides, it made use of many other written sources: decisions of church councils, writings of church fathers, etc. As a highly organized body it also needed rules. In the Eastern church, as outlined above, collections of rules had been put together at a very early date already and in time these collections had solidified into fixed bodies of documents, bearing such names as Collectio or Syntagma or Nomocanon. In order to be used in newly baptized countries, such collections had to be translated. The translation of church texts into Slavonic has been the subject of scholarly interest for a long time, resulting in the publication of important sources and studies.88 But in more recent times it was especially the extensive work of Ia.N. Shchapov which has increased our understanding of the process through which Byzantine law penetrated into the early Slavic world. Particularly in his study of the “Byzantine and Southern Slav legal heritage in Russia in the XIth-XIIIth century”, Shchapov, through his painstaking analysis of the vast repertoire of kormchie, has succeeded in drawing a consistent picture of this process, which can be divided into three stages.89 The first Slavonic translation, of the Collectio L titulorum of John the Scholastic of 550, was made (some time around 862) by Methodius, known together with his younger brother Cyrillus as the apostles of the Slavs (825-885). Little is known about the role, if any, of this translation in the development of medieval Russian law.90 Another version of the Syntagma, connected with the conversion of Bulgaria, was based on the Third Redaction (in Shchapov’s terminology; from 806 or around that date). The story of its composition, as reconstructed by Shchapov, is complicated; it will be sufficient to relate some of his conclusions which are of relevance to our present topic. The Syntagma version from around 806 was provided with some additions and amendments shortly before 912, probably in Constantinople itself. This new collection reached Bulgaria (possibly after having gone through other hands) where it was translated by a team of translators (which may explain its sometimes inconsistent terminology).91 88

89

Such as V.N. Beneshevich, Drevneslavianskaia kormchaia XIV titulov bez tolkovanii, S.Peterburg, 1906-1907; A.S. Pavlov, Pervonachal’nyi slaviano-russkii nomokanon, Kazan’, 1869, to mention only two older Russian works. I have not been able to consult I. Žužek, Kormčaja Kniga. Studies on the Chief Code of Russian Canon Law. Orientalia Christiana Analecta, 168, Roma, 1964.

Ia.N. Shchapov, Vizantiiskoe i iuzhnoslavianskoe pravovoe nasledie na Rusi v XI-XIII vv., Moskva, 1978.

90 91

Cf. Shchapov, Vizantiiskoe, 36.

Shchapov, Vizantiiskoe, 88-100, esp. 96-98. The entire story of the different kormchie reaching Russia is conveniently summarized by Kaiser, The Growth of the Law, 1923.

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The general rationale behind this editorial process was that a nomocanon or kormchaia was not itself a sacred text, immune to editorial interference, but rather an ad hoc collection of texts for the use of church dignitaries. Conditions among the newly baptized Slavic peoples, still close to their pagan past and tribal customs, were very different from those in the Byzantine empire. The main elements of the Syntagma of 806 were the so-called canons of the apostles, the canons of the general church councils and of certain regional councils, the collection of 14 titles from the old Syntagma canonum, and the three collections of secular law pertaining to church matters included in the Revised Syntagma of the Enantiophanes (consisting almost entirely of novellae). The (edited) Slavonic translation of these texts, which did not itself survive and has been reconstructed on the basis of surviving kormchaia copies based on it, is supposed to have consisted of the following three parts:92 (I)

Introductory part: (a) Introduction, (b) the Collectio XIV titulorum (a systematic survey of canonical texts), (c) a list of council rules, rules of church fathers, and imperial constitutions; (II) Main part: (a) the (185) canons of the apostles, (b) the canons of the general (6) and regional (7) councils, (c) the writings and rules of the church fathers, (d) the Collection of imperial constitutions in 93 chapters;93 (III) Additional part, consisting of various materials, which can be grouped into four categories: (a) chronological and historical survey of data and lists, (b) two theological treatises, (c) excerpts from the Procheiron and the Ecloga, concerning the calculation of degrees of consanguinity, (d) rules of various origin concerning bishops.94 It is to be noted that the main difference between this Kormchaia and its Byzantine model was in the additional materials, which were mostly based on other Byzantine texts. 92

Shchapov, Vizantiiskoe, 47.

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94

This Collection of 93 chapters corresponds with the old Collectio LXXXVII capitolorum of John the Scholastic, to which the novellae from the old Collectio XXV capitolorum which had not been included in the latter had been added. It constituted therefore a fairly complete collection of the post-Justinian novellae concerning ecclesiastical affairs and the difference with the three collections included in the Syntagma of 806 is insignificant. Cf. Shchapov, Vizantiiskoe, 54.

This item includes titles 24 and 28 of the Procheiron, concerning the property of bishops and monks and the right to appoint bishops.


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Shortly after the conversion of Russia, possibly during the reign of Iaroslav the Wise, this Slavonic Kormchaia reached Russia.95 Its oldest surviving copy is from the 12th century (the defective Efrem copy, in which the text is broken off at the end of the Collection of 93 chapters). The second stage is represented by the emergence of the so-called Serbian redaction of the Kormchaia, connected with the name of Savva, who became the first Serbian archbishop in 1219.96 This kormchaia was based on more up-to-date Byzantine materials, particularly the canon law collections with comments by the great 12th century canonists Zonaras and Aristenes. The secular law section contained a.o. the Collectio 87 capitolorum, more recent imperial constitutions, and the entire Procheiron text.97 Although the original Serbian redaction did not include any specifically Slavonic materials, it did not have a Byzantine example or counterpart and was apparently put together in Serbia. A copy of the Serbian redaction of the Kormchaia was sent to Kiev from Bulgaria, at the request of Cyril II, the last Kievan metropolitan,98 shortly before 1273. A considerable number of copies of the Serbian redaction of the Kormchaia has survived in Russia, the oldest (the Riazan’ Copy) from 1284. The arrival of the Serbian Kormchaia text in Russia signified simultaneously the beginning of the third stage. At a Russian church council held in Kiev in 1273, it was decided to create a new Russian kormchaia which would better satisfy the needs of the church at that time.99 Although the Serbian redaction constituted the main source for the new text, the earlier version (the Efrem Kormchaia) was also utilized and many new materials

95

96

Shchapov, Vizantiiskoe, 101. The work by A.S. Pavlov, quoted above, is devoted to the Efrem Kormchaia. See, also, by the same author, Nomokanon pri Bol’shom Trebnike; ego istoriia i teksty, S.Peterburg, 1897.

97

Shchapov, Vizantiiskoe, Ch. III (117-155).

98

The penetration of the Procheiron is the subject of a special study by Shchapov: “Prokhiron v vostochnoslavianskoi pis’mennosti”, Vizantiiskii vremennik, Vol.38 (1977), 48-58.

99

Cyril’s successor, the Greek Maxim, moved the see to Vladimir on the Kliazma in 1299. Cyril himself died in 1281, after almost 40 years as metropolitan of the Russian church. Cf. on Cyril II: Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi X-XIII vv., Moskva, 1989, 204-206.

The loss of the rich cathedral library of Kiev, which undoubtedly included several kormchaia copies, during the Mongol sack of Kiev in 1240, may have been a central consideration in Cyril’s efforts to bring about a new version of the Russian kormchaia; cf. Shchapov, Vizantiiskoe, 172.

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of Russian origin were included as well.100 This new product is known, therefore, as the Russian redaction. The work actually proceeded in two phases; the first phase (which occurred between 1273 and 1280) is represented by a family of mainly South-West Russian copies which can be traced to the Volynian protograph of 1284. In the second phase, following immediately, more Byzantine and non-Byzantine materials were added, including the Short Redaction of the ZSL, as well as other amendments and additions.101 Some of the resulting North-West and North-East Russian families of kormchie, at a later stage, also came to include different versions of the Expanded RP. This occurred first in Novgorod, where as a result of the particular politicolegal situation the bishop’s jurisdiction also began to extend to certain secular cases. It made sense, therefore, to include the RP as a secular law code in the general ‘rule-book’ (kormchaia) at the disposal of the bishop. The oldest extant version of the Expanded Pravda is as the last item in the Novgorod Synod Kormchaia of 1282. The Merilo Pravednoe or ‘Just Measure’ As pointed out above, legal texts in medieval Russia are usually encountered in larger collections, which make up an actual book. After the numerous kormchie, the collections knows as Merilo Pravednoe must be mentioned. Of its oldest version, four almost identical volumes are known, while a fifth volume offers a number of different texts. The Trinity Copy of the second half of the 14th century is considered the standard text.102 It consists of two parts. Its first part, 69 sheets, presents a large number of short exhortative and religious texts, mostly of Greek origin, but containing also some texts of Russian origin. The general tenor is to admonish judges. The second part counts 275 sheets and represents the explicitly legal side of the work. The 30 texts are numbered separately. Most of them are of Byzantine origin, such as might be found in the kormchie. Among them are the complete (Russian) texts of the Procheiron and the Ecloga. But the ZSL (Short Redaction) is also included and at the end the Expanded Pravda. The latter is the so-called Trinity or Troitskii I Copy, generally used in modern collections as being closest to the Expanded Pravda’s protograph. According to Tikhomirov, the first nucleus of the MP may have been put together by the Kievan metropolitan Nikifor in the beginning of the 100 101 102

A detailed comparison of the contents in Shchapov, Vizantiiskoe, 165-171. Cf. Shchapov, Vizantiiskoe, 163-164. Published in facsimile edition by M.N. Tikhomirov, Merilo Pravednoe po rukopisi XIV veka, Moskva, 1961.


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12th century for the Kievan grand prince Vladimir Monomakh.103 Later on, other legal texts, including the Expanded Pravda, were added. In the end, this resulted in what is sometimes (a.o. by the leading Soviet legal historian S.V. Iushkov) called the Collection of 30 texts. Then this Collection of 30 texts was expanded by a much shorter collection of texts of a religious-educational character, in the manner of an extensive foreword, extolling the virtues of the ‘just judge’. Although the MP had its origin in ecclesiastical circles, one can certainly not exclude that it was also used in secular courts. A revised version of the MP emerged in the 15th century, with the inclusion of a number of new texts and the omission of certain others. This version is found merged with, or as part of, a kormchaia. The Rozenkampf (or Chudov) and Ferapontov groups of Expanded Pravda copies are part of these collections. The Knigi Zakonnye or ‘Law Books’ The Byzantine Farmer’s Law, which may have been available in a Russian version at an early date in Kievan Russia, is only found in its Russian version in the collection known as the ‘Law Books’ or Knigi Zakonnye (KZ).104 A small number of manuscripts of the KZ is extant, of which the earliest is from the first half of the 15th century.105 As has been mentioned above, the Farmer’s Law constitutes the major part of the KZ; the other parts are the “Law on Penalties”, “On Divorce”, and the “Chapters on Witnesses”. The entire KZ is in substance Byzantine law, with some Russian editorial reworking. The Law on Penalties has been taken almost completely from the 39th and 40th titles of the Procheiron (and thus indirectly from the same chapters of the Ecloga), the section “On Divorce” from title 11 of the Procheiron, and the Chapters on Witnesses from title 27 of the same

103 104

105

Tikhomirov, Issledovanie, 92-93. The first substantial study of the KZ was by A.S. Pavlov, “Knigi Zakonnye”, soderzhashchie v sebe v drevnerusskom perevode vizantiiskie zakony zemledel’cheskie, ugolovnye, brachnye i sudebnye, S.Peterburg, 1885. I.P. Medvedev (ed.), Vizantiiskii Zemledel’cheskii Zakon, Leningrad, 1984, 190-191, 199. The comments in this volume are from the hand of E.E. Lipshits. This work also offers the complete text of the KZ at 233-256. A.V. Soloviev in “Der Einfluss des Byzantinischen Rechts auf die Völker Osteuropas”, Zeitschrift der Savigny-Stiftung, Romanische Abteilung, Band 76 (1959), 432-479, states that the KZ reached Russia in the 14th century, without offering any corroboration. Kaiser (in The Laws of Rus’, li) believes that the KZ may already have been in circulation in Russia in the 13th century.

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law with some additions from title 14 of the Ecloga.106 The Chapters on Witnesses appear also in other medieval Russian collections.107

7. Weighing the Evidence In the fifth section, a distinction was made between general and specific arguments in favour of Roman/Byzantine influences in early Russian law. It will be convenient to discuss the specific arguments first. If such a discussion yields a positive answer it becomes unnecessary to investigate the general arguments in favour. We could debate, for instance, whether conditions on the planet Mars would allow the existence of some form of life. Once a space craft has returned from Mars with a specimen of such a form of life, the debate becomes irrelevant. It is, moreover, also convenient to begin by examining the most ambitious claims: that early Russian law was directly influenced by Roman law itself. Roman Law The only authors who claim specifically that Roman law directly influenced early Russian law, and particularly the RP, are Maksimeiko and Salogubova. A general and already persuasive argument against these claims, as has been mentioned before, is that it is utterly improbable that those responsible for shaping early Russian law, and especially the RP, had access to the necessary Roman law sources. Maksimeiko detected Roman law influence especially in the older version of the RP, the Short Pravda, in the following provisions. Article 1: The enumeration of relatives entitled to exact blood vengeance for homicide has probably been borrowed from Justinian’s Institutes’ treatment of impediments to marriage in Inst. 1, 10, 1-3.108 Maksimeiko doubted “that Old-Russian practice could independently work out such a precise, specific and comprehensive list of persons entitled to pursue the murderer”. Evaluation: The point seems to be extremely far-fetched. Almost all legal systems, from the most primitive to the most sophisticated, contain similar prohibitions of marriage between close blood relatives. Should 106 107

108

Cf. Medvedev, 191. Cf. D.H. Kaiser (transl. & ed.), The Laws of Rus’–Tenth to Fifteenth Centuries. The Laws of Russia. Series I: Medieval Russia, Vol.1, Salt Lake City, 1992, li; English translation of the Chapters on Witnesses at 116-121. The different texts of the Chapters on Witnesses show that they go back to different translations of the original Greek text. RP II, 27 (169).


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they therefore be considered to have been influenced by Justinian?109 If so, how to explain similar pre-Roman rules, as, for instance in the Hittite laws? And the Short Pravda provision does not even concern marriage impediments but a completely different subject: blood vengeance in cases of homicide. Also, as most of the other provisions of the Oldest Pravda, the rule most likely reflects customary law and was not the product of legislative ingenuity. Article 10: Maksimeiko notes that the distinction between pushing another person (as mentioned in this provision) and hitting him (as mentioned in other provisions), is also known in Roman law (Ulp. D. 47, 10, 5).110 Evaluation: The longish text of Ulpian referred to is devoted to a discussion of the Lex Cornelia de iniuriis (from 81 BC) which deals with remedies against unlawful violent behaviour: shoving, beating, and entering a residence by force (pulsare, verberare, domum vi introire). In this context, the distinction between pushing (shoving) and hitting (beating) is explained: hitting hurts, pushing does not. Article 10 of the Short Pravda concludes the catalogue of personal injuries which begins with homicide and then other personal injuries in descending order of seriousness. Pushing or pulling another person without injuring him is about the least harmful and entails a payment of 3 grivna (40 grivna for homicide). Identifying pushing (shoving) or pulling another person as a not too serious personal injury in the course of a general treatment of personal injuries is not a very remarkable procedure. The fact that the Short Pravda does so hardly suggests that it must have been inspired by the Romans having had similar thoughts (which Maksimeiko does not claim anyway). Article 11: The author of the Short Pravda has followed the Roman example that the person who hides a fugitive slave is considered a thief (Ulp. D. 4, 1, 1).111 Evaluation: In slave-owning societies, runaway slaves will usually be a common occurrence. Concealment of runaway slaves would then, in legal terms, find its closest parallel in the unlawful appropriation of stray 109 110 111

Anyway, the text of Justinian’s Institutes repeats almost verbatim the Institutes of Gaius, 1, 58ff., a point Maksimeiko apparently missed. RP II, 84 (163).

RP II, 89 (182). The positions of the kholop of Kievan Russia and the Roman slave were not identical. Baranowski leaves kholop untranslated; other German translations use Knecht. I have followed Vernadsky’s and Kaiser’s usage.

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cattle, because in both cases the ‘property’ that has been appropriated differs from ordinary property by the fact that it is able to move around by itself. Characteristically, the first statement in the title on fugitive slaves in the Digest (11, 4, 1) is Ulpian’s lapidary: “He who hides a fugitive is a thief.” The independent will of the slave and his physical possibility of moving around independently distinguish the ‘appropriation’ of a slave from ordinary theft to such an extent that it becomes necessary to equate them explicitly in legal terms, if that is considered desirable. This equation, moreover, requires more detailed regulation, precisely because of the fact that concealment of a runaway slave is actually rather unlike ordinary theft. Consequently, one finds in classical Roman law additional rules concerning periods of grace granted to those harbouring runaway slaves, allowing them to return the slave to its master or to the authorities, or to notify them. Byzantine law retained the principle of the unlawfulness of hiding runaway slaves, but introduced various amendments in the major laws of the first millennium. The Codex of Justinian (534) allowed the replacement of the standard fine of classical Roman law of 20 solidi (on top of the handing over of the fugitive slave) by supplying a second slave of the same value as the fugitive.112 This feature was taken over in later Byzantine legislation.113 The Ecloga (XVII, 17) introduced an additional requirement by defining the offence as “luring away and hiding the slave of another person […]” [italics added, FF]; the slave had to be returned to its master together with another slave, or an equivalent sum of money. The Procheiron (XXXIX, 24) dropped the additional requirement again but otherwise took over the Ecloga’s rule. Lipshits points out that this approach of the Ecloga and the Procheiron demonstrates how far the Byzantine system had moved away from its Roman roots. The same two laws contain provisions on theft in the same titles which treat the common thief as a criminal: he is to return the stolen goods to their owner and on top of that he has to pay him twice their value; if he is unable to do so he is to be whipped and exiled. In case of recidivism his hand is cut off. The sanctions against concealment of a runaway slave are mild, compared to those for the thief. The rule of the Ecloga has been taken over in the early (Short) version of the Court Law for the People (ZSL), but with considerable amendments. The possibility of returning the slave voluntarily to its owner as an escape 112 113

This innovation goes back to a 4th century constitution of the emperor Constantius.

A very similar formula (“alium paris meriti cum eodem servum domino dare cogatur”) is found in the 6th century Lex Visigothorum (XI, 1, 1). As this law is known to be heavily influenced by Roman law, the rule in question is presumably of Roman origin.


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route is not mentioned anymore. The ZSL retained the additional requirement of the Ecloga (“luring away”) and added another requirement: that the concealment is carried out clandestinely. It was not required that the slave be returned to his master, only that “another such slave” was to be supplied, or an equivalent amount of money. Dewey and Kleimola suggest that this excessively mild penalty is due to a mistake of the scribe.114 The Expanded Version of the ZSL (art.36) does indeed insert the obligatory return of the slave again, to be replaced by the price of a new slave in the event the original owner has bought one; also, the guilty person is to be flogged. With all this, the connection between the detailed regulation in Roman law and the specificity of the Short Pravda provision has become very tenuous. Two points of similarity remain: that the concealment of a runaway slave is identified as an issue to be regulated by law; and that the person hiding the slave is granted a certain period of time to hand over the slave. The first point means almost nothing; in a slave-owning society one can expect some sort of legal device for dealing with the situation described above. The second point of similarity is at least quite unspecific. The characteristic features of the Byzantine law on this point (the penalty in its alternate form: another similar slave, or an equivalent sum of money, and the “luring away”) are absent in the Short Pravda. If any influence on the rule of the Short Pravda is to be assumed, the Short ZSL would be the only realistic candidate, although it is uncertain whether its text would have been available at that early stage of formation of the RP. The Russian rule only deals with a specific case: when the slave is hiding with a Viking or a Kolbiag (and presumably any other foreigner), and this fits well into the view of the Pravda of Iaroslav as an enactment to deal with a specific situation in Novgorod around the year 1016.115 In this view, the Pravda of Iaroslav was meant to solve a number of urgent problems arising from the co-habitation in Novgorod of a local Slavic population and the Scandinavian followers of the prince. It is unlikely that the time and expertise would have been available to consult foreign laws in this process. When in the course of the next century the text of the Short Pravda was edited into the compilation out of which the Expanded Pravda 114

H. Dewey & A. Kleimola, Zakon Sudnyj Ljudem (Court Law for the People), Michigan Slavic Materials, No.14, Ann Arbor, MI, 1977, 29.

115

In his new translation of the RP, Kaiser (16) translates the mysterious Kolbiag simply as “another foreigner”. It is to be noted that the corresponding provision of the Expanded Pravda (art.32) drops the restriction to foreigners and applies the rule generally to anybody who hides a runaway slave. On the meaning of art.11 in general, see Baranowski, 214-220.

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arose, there was no need anymore to restrict the effect of the provision to foreigners. Article 12: Riding another person’s horse, without permission, entails a fine (3 grivna). This is directly inspired by the Roman concept of furtum, where intentional unlawful appropriation in any form, with the intent to derive profit (lucri faciendi animo), constitutes theft.116 Evaluation: Maksimeiko fails to indicate a precise source. His understanding of this rule is quite implausible, given the context of it (not to mention of course the general point made above already, that it is completely improbable that the drafter of the Oldest Pravda had any knowledge whatsoever of Roman law). The Short Pravda deals with various forms of theft, termed tat’ba or krazha, in articles 1, 31, 35-40, i.e. a substantive part of the Pravda of Iaroslav’s Sons is devoted to the subject. In the Oldest Pravda (Iaroslav’s Pravda), the accent is on personal injuries and additionally on property disputes where the aspect of theft is absent or in the background only; article 11—concealment of a fugitive slave, article 13—recognizing one’s property in his own community (mir), article 14—the procedure to be followed in property disputes, article 16—the procedure to be followed to reclaim a stolen slave. Article 12 fits into this system. In fact, the context suggests that this early form of joy-riding is not regarded as theft. If one accepts that the direct origins of this provision cannot be Roman, the question may still be asked whether the rule may not have Roman roots indirectly. This is precisely what some other commentators have argued and this question may most conveniently be discussed here. The starting-point is in classical Roman law where several authors mention the unauthorized use of a horse supplied in commodatum, or ‘loan for use’. Gaius, in his treatment of theft (furtum), mentions such use of a horse as a form of ‘theft of use’ (G. 3, 196). Ulpian mentions the unauthorized use of a loaned horse in his long discussion of commodatum, without getting into the theft aspect (D. XIII, 6, 7). In the original text of the Farmer’s Law (art.36), a different but related situation is described: the use of an ox or a donkey or another farm animal for farm work, without the owner’s permission. The culprit must return the owner (the animal and) twice the yield of such use, in accordance with the general Roman system. In the Slavonic translation of the Farmer’s Law, the words “or a horse” have been inserted. 116

RP II, 97-98 (177-184).


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The Ecloga contains a provision which in its wording is more reminiscent of the classical texts (Title 17, art.7), although it does not provide for the double compensation. It talks about “taking the horse beyond the agreed point” (as Gaius and Ulpian did), but only envisages the situation when the horse gets injured or dies. This provision has been taken over almost verbatim by the Short ZSL (art.24). In the Expanded ZSL, the provision returns in significantly amended form (art.26). It does not deal with unauthorized use anymore, but only with the risk aspect: if the horse perishes before the agreed place has been reached, the risk is the owner’s; if the horse perishes after the agreed place has been reached, the user has to pay the value of the horse. Then a new provision is inserted (art.27), which lacks a parallel provision in the Short ZSL: the unauthorized use of another person’s horse (“If anyone rides another’s horse without [the owner’s] bidding […]”).117 It is this complex of interrelated rules which has given rise to the theory of the Byzantine roots of article 12 of the Short Pravda (further details below). The theory was already rejected by N. Lange in 1859, whose words are worth to be quoted here: “[…] the article on the horse is not at all of Germanic and neither of Byzantine, but simply of native origin, otherwise, if one bases oneself on the similarity of certain laws, it could be proved that the Russkaia Pravda would have been borrowed from the Chinese Law Code.” 118

Pace Lange, the Germanic parallels are much more intriguing than the Roman/Byzantine ones. But leaving that aside for a moment, the only clear ‘Byzantine’ parallel is the above-mentioned article 27, inserted after Iaroslav’s Pravda had already been drafted. Considering that the Expanded ZSL was composed in Kievan Russia, the conclusion that the rule on ‘joy-riding’ was taken over from the already existing Short Pravda is obvious. The Germanic parallels of article 12 have had a rather unhappy history. The theory was introduced early in the 19th century by Strube, who referred to a very similar rule in the Law of the Jutes. When it was pointed out that this Law appeared long after the RP, attention focused on Byzantine law as the source of the provision. During the Soviet era and especially after the Second World War, references to Germanic connections of the RP were unpopular, to say the least. Nevertheless, the leges barbarorum offer quite a list of close parallels to article 12, beginning

117 118

In the translation of Dewey & Kleimola. RP II, 96 (292).

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with the Salic Law (title 25 of the Pactus Legis Salicae) and the Law of the Ripuarian Franks (art.40).119 Without attempting to solve this riddle here, the most defensible provisional answer (as also suggested by several pre-revolutionary Russian authors) might be that at the cultural level of early Slavonic and Germanic peoples the unauthorized use of the most important means of transport was a frequent occurrence which could be very harmful and upsetting for the master of the horse. That alone would already explain the striking similarity between the different provisions, the almost uniform wording of which is obvious (how else could you describe the offence simply?). Article 17: This provision deals with the liability of the master who refuses to hand over his slave who has struck a freeman; Maksimeiko points to D. 47, 10120 and D. 9 ( Ad Legem Aquiliam), esp. D. 9, 4 (De Noxalibus Actionibus),121 and adds that the author of the RP was influenced by Book 9 of the Digest. Evaluation: The situations described in this provision and in D. 47, 10, 17, 4 are similar: a slave has struck a freeman and has sought refuge with his own master; the Roman rule refers more generally to an iniuria committed by a slave. The Short Pravda offered the master a choice between paying 12 grivna or handing over the slave to be punished by the aggrieved party; in Roman law the choice was between handing over the slave to be flogged, or being sued in a noxal action. Noxal actions (actions for damages caused by delicts of dependents, such as family members or slaves) were discussed at length in D. 9, 4, but the situation described in article 17 of the Short Pravda is not specifically mentioned in this chapter. The similarity between the situations described article 17 and D. 47, 10, 17, 4 is undeniable; on the other hand, this similarity is still general. The provisions differ strongly in their wording and also in context. The Digest, in the chapters concerned, offers in its usual way a vast array of casuistic material discussing all possible variations of delicts and injuries, devoting ample attention to liability for acts of dependents. Among the 18 provisions of the Oldest Pravda (the Pravda of Iaroslav) three mention slaves: article 11 (discussed above), article 16 (the procedure for reclaiming a stolen slave) and the present article 17. In the Pravda of Iaroslav, the 119

120

In the latter Law, the formula is almost exactly the same as in the Short Pravda art.12: “Si quis caballum extra consilium domini sui ascenderit […]” and “Ashche kto poedet’ na chiuzhem kone, ne proshav ego, […]”.

121

More precisely, D. 47, 10, 17, 4-7; see W.W. Buckland, A Textbook of Roman Law From Augustus to Justinian, Cambridge, 1932, 600. RP II, 115 (164, 171-173).


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emphasis is strongly on status and reputation and on what is to be done when these are affected. Financial compensation does not serve to make good the material losses suffered, but to right the injury to the affected person’s status. Although this aspect is not wholly absent in classical Roman law, the wealth of available texts proves beyond doubt that correcting the economic balance was the dominant consideration. The procedure of article 16 RP, basically consisting of following the track back to the person who first removed the slave (or the property in general) from the master’s domination, is encountered in other legal systems as well, the oldest example being the Code of Hammurabi.122 Nobody would claim of course that the author of article 16 had consulted the Babylonian law. The mere general similarity between the situations described in article 17 of the Short Pravda and D. 47, 10, 17, 4 can therefore not be considered as a serious argument for a genetic link between the two provisions. The Hittite Law Code contains a provision which could equally be regarded as an example.123 Article 18: A provision devoted to property damage, based on the Lex Aquilia.124 Evaluation: Maksimeiko’s position requires some preliminary explanation. The terse formulation of this provision and especially the uncertainty of the identity of the subject of the verbs utilized have caused a number of divergent translations. The following text offers the main alternatives: “And if [someone] breaks a lance, or a shield, or clothing, and [that person/the owner] wishes to keep it for himself, then [the owner is] to take payment from him; but if he has broken it and will return it, then [him] payment to make, as much as [that person/the owner] would have given for it.”

All modern translations125 agree on the following reading (Kaiser’s translation): “And if someone breaks a lance, or shield, or destroys clothes, and wishes to keep [the damaged property] for himself, then [the owner] is to take payment for it; and if he has broken it, and if he will return it, then [the one who broke it] is to pay [the owner] money, as much as [the owner] gave for it.” 122 123

124 125

H. Winckler, Die Gesetze Hammurabis, Königs von Babylon um 2250 v. Chr. Das älteste Gesetzbuch der Welt (Der alte Orient, 4. Jahrgang, Heft 4), Leipzig, 1902, 11 (art.9).

In art.95 of the First Tablet, where the master of a stealing slave is given the option of compensating the loss or rejecting the slave. See J. Friedrich, Die Hethitischen Gesetze, Leiden, 1959, 47. RP II, 119-120 (194-206). A.A. Zimin in PRP I, 81-85 (at 82); Kaiser, The Laws of Rus’, 17; Baranowski, 244.

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Maksimeiko held that the first part of the provision envisaged the situation when the owner wished to keep the damaged property and claim damages for whatever he had lost; he felt that this arrangement had been inspired by Roman law views, based on the system of the Lex Aquilia. As Maksimeiko’s understanding of this provision does not have followers anymore and his reference to Roman influence is unworkably general, we need not pay any more attention to his views on this matter. Article 19: Fines for killing (high-ranking) servitors of the prince, equally based on the same Roman law.126 Evaluation: The second part of the Short Pravda (the Pravda of Iaroslav’s Sons) consists (with the exception of the last few provisions) of a coherent set of rules, obviously intended to protect the interests of the prince by providing increased penalties for offences against his servitors or affecting his property. Maksimeiko supports the generally-held view that in this part of the Short Pravda the emphasis has shifted from the immaterial interests of status and reputation (of the freeman in general) to the material interests of the prince. There is no doubt that the fines indicated in this part of the Short Pravda are destined for the prince’s coffers (where else would they go?). The unfree status of most of the princely servitors mentioned in this part of the Short Pravda is obvious; but the higher-ranking persons covered by articles 19-24,127 comparable perhaps to the court functionaries of Carolingian times in Western Europe, probably belong to the same category, at least as a general rule. Where it becomes more difficult to follow Maksimeiko is where he argues that the entire treatment of the killing of the prince’s (unfree) servants, as well as the damaging of his property, is inspired by the Lex Aquilia. The most important provisions of this Law concerned the compensation for the unlawful killing of somebody else’s slave, and for other unlawful damage to his property. The character of the compensation (the highest price during the last year for the slave that had been killed, or the property that had been destroyed) illustrated very clearly that the matter was viewed exclusively from a financial point of view. 126 127

RP II, 137 (139-150). The ognishchanin, the pod”ezdnoi, the tivun, the koniukh staryi, the sel’skii starosta and the ratainyi. Kaiser translates these resp. as “steward”, “collector of fines”, “overseer”, “senior stablemaster”, “field supervisor” and “plowland supervisor”. The first four officials are far more prominent, their bloodwite having been set at 80 grivna, while the latter are worth only 12 grivna.


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The rules concerned from the Pravda of Iaroslav’s Sons do not suggest that they were also based on such a viewpoint. And even if they were, then that would hardly indicate that they had been inspired by Roman law. If the prince felt that he had suffered a loss, he would naturally like to get his money back. But the fixed nature of the compensation indicated suggests rather that the immaterial aspect, so prominent in the Oldest Pravda, was still very much present in the second part of the Short Pravda. If the customary compensation for killing a freeman (which replaced earlier blood feuds) was 40 grivna, the prince, who began to assert himself in those days, warned the community that his high-ranking servitors (such as the ognishchanin), even if they were not freemen, were under his special protection and that their killing would be regarded as a more serious matter than ordinary homicide. The legislative innovation of the Pravda of Iaroslav’s Sons on this matter was the transition of the private handling of personal injuries as an affair between two families to the intervention of “the state”, claiming the compensation for itself. The further elaboration of this trend is very noticeable in the parallel provisions in the Expanded Pravda (taken over, in edited form, from the Short Pravda). Article 20: The rural community being liable to a fixed fine in the case of the unsolved homicide of a princely servitor; Maksimeiko points to Inst. 4, 3 and D. 9, 3, 5 and the underlying principles.128 Evaluation: The indicated chapter of the Institutes is devoted to the Lex Aquilia in general and summarizes its main elements; there is nothing there about collective liability. The chapter from the Digest concerns the action for damages caused by (carelessly) throwing away or pouring out something (de deiectis et effusis). It has nothing to do with homicide and collective liability for it. Article 21: Concerning the killing of a cattle-thief, caught in the act; inspired by the Lex Aquilia.129 Evaluation: Maksimeiko’s cavalier statement that this provision shows the “inspiration” (veianie) of Roman law and the Lex Aquilia in particular, without any further argument, does not need any refutation. The provision is otherwise one of the most cryptic of the Short Pravda and has given rise to extensive discussion. 128 129

RP II, 153 (151ff.). RP II, 157 (147-150).

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Article 23: Concerning the fine for killing the prince’s stable master; Maksimeiko points to Inst. 1, 2, 5.130 Evaluation: The most remarkable thing about this provision is its patently casuistic origin, which distinguishes it from all other, more abstractly worded provisions of the Short Pravda. In Kaiser’s translation: “And for the senior stablemaster [who is murdered] while [he is] with the herds [pay] 80 grivnas, as Iziaslav [1054-78] established when the residents of Dorogobuzh killed his stablemaster.” The reference to the precedent in Dorogobuzh was dropped in the parallel provision of the Expanded Pravda (art.12). Maksimeiko refers to the definition of the six sources of Roman law in the first chapter of the Institutes, and then in particular to the definition of the principum placita: what pleases the ruler has the force of law. He argues that the excessively high fine for killing the stablemaster reflected the anger of prince Iziaslav, who felt free to impose a severe punishment on the people of Dorogobuzh (a town not far from Kiev). A sufficiently powerful prince would act as it pleased him in any similar case and did not need the authority of the Institutes for it (of which he would certainly be ignorant anyway). Article 25: Concerning the fine for killing a servant of the prince; based on the ideas of the Lex Aquilia.131 Evaluation: See comments to article 19. Article 28: Fixed damages for killing the prince’s livestock; based on the Lex Aquilia.132 Evaluation: See comments to article 19. Article 31: Fines for cattle theft, whether committed by a single thief, or by a band of thieves.133 Evaluation: The provision establishes a uniform fine (1 grivna and 30 rezana) for theft of a horse or an oxen, or from a storeroom; when more 130 131 132 133

RP II, 162-163 (119-120). RP II, 169 (130-133). RP II, 186 (121-156). RP II, 196 (184-186). Maksimeiko provides examples from the Digesta, as a source for this provision, but RP II does not include these.


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than one person took part, then the fine is 3 grivna and 30 rezana each. Maksimeiko connects the separate liability of each individual thief with Roman law. There is a rule in the Codex (4, 8, 1) which provides that payment of what is due by one thief does not liberate the others. D. 47, 10, 34 offers a comment by Gaius that an injury inflicted by several persons is in itself more serious: tot iniuriae sunt, quot et personae iniuriam facientes (“there are as many injuries as there are persons inflicting them”). The similarities are too general and the specific differences too great to attach much weight to Maksimeiko’s argument in this matter, Article 33: Fines for torturing the prince’s peasant, or a higher-ranking servitor, offences already defined in Roman sources (D. 47, 10).134 Evaluation: This provision is found in a part of the Pravda of Iaroslav’s Sons which deals with offences affecting the prince’s property. Maksimeiko refers generally to the long chapter on “injuries” (De iniuriis et famosis libellis) in the Digest where the understanding of the slave as an object of ownership is one of the basic ideas. Unlike Maksimeiko whose observations concerned only the RP, Salogubova examined the possible traces of Roman law in a number of early Russian legal sources. In the Russo-Byzantine treaties of 911 and 944 she discerned the inclusion of Roman rules of evidence. After Russia adopted Christianity in 988, the Greek Nomocanon, she argued, formed the basis of the church statutes of the princes Vladimir, Iaroslav and Vsevolod, and also of the Court Law for the People. The latter Law, according to Salogubova, was passed during the reign of Vladimir, consisted of a collection of Byzantine rules of ecclesiastical law, and came to be used as a manual in all civil cases. It introduced the testimony of witnesses as a basic form of evidence in Russian law. Its numerous rules on evidence were directly borrowed from Justinian’s Code and from the Ecloga. In the RP (still according to Salogubova), a number of provisions was taken over from the Court Law for the People (itself considered as Byzantine law on account of its content), and other provisions directly from the Ecloga. Corporal punishment, until then widely applied in Russia, was replaced by a system of fines. Other provisions taken over concerned the securing of claims, guarantee, and procedural terms.135 An attempt was made to distinguish between actiones in personam and actiones in rem, 134 135

RP II, 201 (173-176). Salogubova, op.cit. (1997), 31, and op.cit. (1999), 176, refers on this point to I.D. Beliaev, Lektsii po istorii russkogo zakonodatel’stva, Moskva (2nd ed.), 1879, 120

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and a distinction was made between two kinds of oath (exculpatory and supplementary). Also, the ordeal by fire was a Byzantine innovation. The Greek Nomocanon in its Slavic variety (the Kormchaia) and the RP had equal validity. So far Salogubova. Evaluation: We shall deal here only with those instances where Salogubova alleges direct influence of Roman law. The question of Byzantine legal influences on early Russian law will be discussed below. Unlike Maksimeiko, who usually cites chapter and verse, Salogubova confines herself to sweeping statements and only identifies the RussianByzantine treaties of 911 and 945 as actual examples of direct Roman law influence. With regard to the treaty of 911 she points to its provisions reflecting an amended Roman system of evidence, and avers that from that moment on the judicial oath, judicial searches and testimony by witnesses began to appear in Russian law as means of evidence.136 Roman inheritance law was contained in the provision which for the first time in Russian law differentiated between intestate and testate succession. As to the 945 treaty, Salogubova notes that the differences between the law as reflected by the treaty and contemporary Old-Russian law cannot be explained if one does not accept the influence of Roman-Greek law. Instead of identifying those places in the treaty which might illustrate her point, she refers to several pre-1917 authors of whom only V.I. Sergeevich appears to agree with her. In his special study on the relationship between Greek and Russian law in the 10th century treaties, Sergeevich’s general argument is that the Greeks succeeded in maintaining the prevalence of Byzantine law in most questions.137 His first example is homicide, where the traditional Russian alternative of blood-feud or compensation (wergeld) was replaced by capital punishment or, in some cases compensation as an alternative (art.4).138 The provision dealing with the justifiable killing of a thief (art.6) appears to be a compromise between Greek law and the harsher Russian custom.139 The double or threefold penalty for theft was Greek, not Russian (arts.6 and 7).140 The same goes for the institution of 136

137 138 139 140

Only in the 1997 paper does Salogubova refer to the provisions of the 911 treaty by numbers: 8, 2 and 11. These numbers differ from the usual numeration laid down by Zimin in PRP I. I suppose that the provisions the author had in mind were, according to the usual system of numeration, 9, 3 and 13. Sergeevich, Lektsii, 626-666. My references are to the fourth edition of 1910, while Salogubova quotes from an unknown 1899 Moscow edition. Ibidem, 645-646. Ibidem, 652-654. Ibidem, 655.


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redeeming prisoners (of war) (arts.9 and 11).141 The rule about intestate succession (art.13) is so close in its wording to a corresponding provision of the Twelve Tables Law, according to Sergeevich, that a genetic connection is very probable.142 Both legal systems made use of the oath as a procedural device, but in Old-Russian law the oath was intimately connected with the ordeal and both institutions had a sacral character; the oath in Byzantine law and in the treaties were purely secular institutions, when other means of evidence were lacking. The difference between Sergeevich and Salogubova is that the former evaluates the treaty rules with regard to the preponderance of Greek or Russian elements. Salogubova goes a step further and argues that the Greek (or Roman) elements present in the treaties became part of Russian law from that moment. There is not a shred of evidence for the latter position; on the contrary, it can easily be demonstrated that Old-Russian law, as exemplified by the Oldest Pravda, is a continuation of those few elements in the treaties which can without doubt be identified as traditionally Russian. There is a wealth of literature concerning the Byzantine-Russian treaties of the 10th century which is in full agreement that the treaties (and how could it be otherwise?) represent mixed compacts of Byzantine, Russian and ad hoc legal prescriptions. The presence of Byzantine and even Roman elements in the treaties does not say anything about their subsequent survival in Russian law. This would have to be demonstrated and that is what Salogubova has failed to do. As to Salogubova’s allegations about the ZSL, it is quite uncertain when it first came to Russia. To state simply that it was adopted as a law by Vladimir is completely untenable. The ZSL functioned primarily as a guide to church courts, and not as a manual for all civil cases. Also, nobody has ever held that its rules on evidence were “directly borrowed” from the law of Justinian. Some authors (such as Tikhomirov) have occasionally argued that particular RP provisions were taken over from the ZSL, but it seems that nobody defends this position any longer. To propose (as Salogubova does) that the RP also borrowed directly from the Ecloga is completely unsubstantiated. 141 142

Ibidem, 664. Ibidem, 659. The Roman rule (Tabula V, 4) is: Si intestato moritur, cui suus heres nec escit, adgnatus proximus familiam habeto. The corresponding rule from the 911 treaty (art.13) is (in Kaiser’s translation): “If someone of them die, not having created a testament for his property, and if there be none of his [kinsmen] with him in Greece, then let them return his property to his closest kinsmen in Rus’.”

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The statement that corporal punishment was widely applied in Russia and replaced by a system of fines under the influence of the Ecloga is incomprehensible, because corporal punishment was common in Byzantium and unknown in Russia, as numerous authors have pointed out. I shall leave it at that. Byzantine Law Byzantine law was much closer to Kievan Russia in time and place than classical Roman law and this may easily explain why both the parallels and possible borrowings, and the authors suggesting these are much greater in number. There is, however, one consideration of overwhelming importance which should be expressed at this point. Byzantine law does not equal Roman law, because—besides its numerous and wide-spread roots in the latter—it also embraces a vast corpus of rules and institutions of non-Roman and especially Christian origin. These are of particular importance in those branches of law in which the Christian church took an active interest, such as marriage and family law, but also inheritance law and certain parts of criminal law. And, it was precisely through the vehicle of the Greek church hierarchy that Byzantine law reached the newly converted Slavic populations of Eastern Europe. Already in 1846 Kalachov, in his pioneering study on the RP, devoted an entire chapter to possible borrowings, most of them from various Byzantine sources. The first examples he mentioned were the Old Testament precursors of several provisions of the Expanded Pravda: the book of Exodus (ch.21, 18-19 and ch.22, 1-2) and articles 29, 30, and 40 of the Expanded Pravda (injuries sustained in a fight, and the killing of a thief caught red-handed).143 Biblical sources, especially the so-called Mosaic laws, were usually included in the various kormchie. The other sources mentioned by Kalachov are mostly Byzantine or closely connected with Byzantine legislation. They include the “Farmer’s Law” (Nomos Georgikos), the Ecloga, the Procheiron, the Court Law for the People, the “Chapters on Witnesses”, and the Church Statutes of the princes Vladimir, Iaroslav, and Vsevolod. References to Byzantine law made by later authors all return to these sources, and especially the Court Law for the People; it will therefore be convenient to discuss the suggested borrowings from Byzantine legislation by surveying these sources in chronological order. 143

Kalachov, op.cit., 233-235. Sergeevich, Lektsii, 94, also mentions the case of art.40 (art.38 of the Short Pravda) as having been taken over from the Old Testament. Additionally, Kalachov mentions a provision which only occurs in a single ms. of the RP (the Rostovskii Copy), published by Tatishchev, but lost later on; the Rostovskii Copy has not been included in the Academy of Sciences edition, see RP II, 60.


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Nomos Georgikos Kalachov points to several parallel provisions in this law and the RP: articles 10 (9) and 67 (62)144 could be connected in his view with certain provisions on interest which appear in a few copies of the Expanded Pravda,145 and article 45 (43) with articles 46 and 121 of the Expanded Pravda (on the master’s liability for thefts committed by his serf). Moreover, he notes the similarity between the preambles of certain versions of the Byzantine law and of the RP.146 In more recent times, only E.E. Lipshits (among Russian authors) has concerned herself extensively with the relationships between the RP (both the Short and the Expanded Pravda) and the Farmer’s Law. In her commentary to the Russian translation of the law she mentions articles 12, 31, 32, 34 and 40 of the Short Pravda and articles 33, 41-42, 43, 44, 46, 71-73 and 121 of the Expanded Pravda and parallel provisions in the Farmer’s Law. She refrains from suggesting any borrowing one way or another, but considering the greater age of the original Greek version of the Farmer’s Law it seems reasonable to interpret her approach as viewing the Farmer’s Law’s provisions as having served as a model for the RP.147 Evaluation: As the Roman law ancestry of the Farmer’s Law can only be assumed for part of the latter law’s provisions, any possibility of Russian borrowing from the Farmer’s Law has to be seen in this light. The chronological framework presents another problem. According to Lipshits’ detailed study of the Russian translation of the Farmer’s Law as a component of the Knigi Zakonnye, the latter compilation may very tentatively be dated in the 12th century.148 Whether the text of the Farmer’s Law, in its Old-Russian translation or in its Greek original, could have been available in Russia before that time is even more problematic. The possibility of its having influenced the Short Pravda is therefore very remote. Kalachov’s first examples concern a few provisions which appear only in a few copies of the Expanded Pravda belonging to the Karamzin 144

145 146 147 148

According to the numbering of the provisions in Medvedev’s Russian edition of the Nomos Georgikos, I.P. Medvedev (ed.), Vizantiiskii Zemledel’cheskii Zakon, Leningrad, 1984; the first number refers to the original Greek text as reproduced in this edition, the second number (in brackets) to the Russian translation as offered in the Knigi Zakonnye. In the Obolenskii and Museum recensions of the Karamzin group. Kalachov, 236-237. Medvedev, Zemledel’cheskii Zakon, 257-260. Ibidem, 223-230.

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group. It has now been established beyond any doubt that these provisions, which are absent in the vast majority of other (and older) copies, have been inserted some time during the 15th century.149 Moreover, the similarity between the provisions concerned of the Farmer’s Law and the Expanded Pravda is far from obvious. Their evidentiary value for supporting the argument of Roman law influence on the Expanded Pravda is therefore zero. With regard to article 45 of the Farmer’s Law (a slave killing cattle— the owner pays up), Kalachov points to articles 46 and 121 of the Expanded Pravda. These provisions concern theft by a slave, and are among a considerable number of provisions defining noxal liability of the owner of the slave, as can be expected in a law code of a slave-owning society. This subject was of course extensively regulated and commented upon in classical Roman law, but related rules can also be found in completely different legislations, such as those of the Babylonians and the Hittites. The similarity which Kalachov perceives is very vague. The similarity between the preambles concerns only a few copies of the Expanded Pravda. The preamble is absent in the vast majority of Expanded Pravda copies and is the result of a comparatively late insertion in the so-called Pushkin Copy and the five copies of the Archeographic recension.150 The preambles contain exhortations on judicial ethics and are based on biblical prescriptions and especially on the writings of early Christian saints. The preamble which immediately precedes the Farmer’s Law is explicitly identified as the preamble to the entire Knigi Zakonnye and appears only in the Russian, not in the Greek texts. Its source is most likely a short text entitled “The word of the great Saint Basil on judges and slander”, which is also found in the Merilo Pravednoe. The preamble to the Ecloga represents a similar rhetorical exercise. Lipshits, who frequently quotes Kalachov and is very familiar with his work, refers to an almost completely different set of parallels between the Farmer’s Law (in its Russian version) and the RP. She notes the general likeness between articles 12 of the Short Pravda and 33 of the Expanded Pravda (‘joy-riding’, a horse only) and article 36 (34) of the Farmer’s Law (using other people’s domestic animals without permission). This question has been discussed above already; the provision of the Farmer’s Law is clearly of Roman law origin, but is not connected with the RP provisions (as argued above). Article 41 (39) of the Farmer’s Law is devoted to theft of an ox or a donkey; the thief will be thrashed, pays twice the value of the animal, as 149 150

Cf. Tikhomirov, Issledovanie, 178-180. Ibidem, 144.


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well as any profits that accrued to him. Lipshits points to articles 31 and 40 of the Short Pravda and the corresponding articles 41 and 42 of the Expanded Pravda. The contents and the legislative context of the Russian rules are so different that the only remaining similarity is that all provisions concerned deal with theft of domestic animals. Damaging someone else’s forest through arson or by cutting trees is the subject of article 57 (55) of the Farmer’s Law.151 The usual double-value penalty applies, plus (only in the Russian version) marking the arsonist’s hand by fire. Parallels offered by Lipshits are article 32 of the Short Pravda and article 83 of the Expanded Pravda. Again, the similarity is remote, both in the definitions and in the penalties to be applied. The same conclusion has to be made about the suggested parallel between articles 1-2 of the Farmer’s Law and article 34 of the Short Pravda and articles 71-73 of the Expanded Pravda. All of these provisions concern the violation of borders between fields, but there the similarity stops. A number of provisions in the Farmer’s Law deal with thefts committed, or damage caused by a slave (arts.45-47 (43-45), 71-72 (69-70)). Lipshits refers to articles 46 and 121 of the Expanded Pravda. Article 46 of the Expanded Pravda, however, is only concerned with the question of the competent court, something the Farmer’s Law does not envisage. The situation discussed in article 121 of the Expanded Pravda does not correspond with any provision of the Farmer’s Law (although closer parallels may be found in other Byzantine/Roman sources). Finally, Lipshits connects article 43 of the Expanded Pravda (theft of grain from a storage place, and the responsibility of each individual participant in the theft) with articles 60 (57), 61 (58) and 68 (63) of the Farmer’s Law (theft of grain from the fields, of fruit from orchards, of grain from storage places). The Farmer’s Law, in accordance with its general tenor, prescribes various forms of physical punishment, and this would naturally apply to all participants. The Russian law only indicates a monetary sanction and therefore the legislator made sure to indicate that every individual participant would have to pay up in full. The similarity again is remote. Ecloga Article 12 Title 17 of the Ecloga regulates theft committed by a slave; Kalachov makes the connection with articles 63152 and 121. The Ecloga

151

152

Title 17 art.40 of the Ecloga, however, is very close to the original Greek provision of the Farmer’s Law. This, incidentally, appears to be the only close parallel between the Farmer’s Law and the Ecloga. 47 in Kalachov’s numeration (=63 Exp. Pravda), Kalachov, 243; I suppose this is a printing error and 46 (=46 Exp. Pravda) is meant.

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also forbids slaves to testify against their masters (Title 14 art.5); the Expanded Pravda contains a general prohibition for kholopy to appear as witnesses.153 As already outlined above, Sergeevich regarded the Ecloga as the principal source of Byzantine influence, but stressed that the Russian courts did not have direct access to it. They were only aware of judicial practice that was based on it.154 He discerned Byzantine influence especially in the provisions of the Expanded Pravda which dealt with inheritance law (arts.90, 92-94, 99-102, 104-105).155 Kliuchevskii’s view was similar; he held that the author of the RP was aware of the situations regulated by the Ecloga (and the Procheiron) and then provided his own solutions, inspired to some extent by the Byzantine provisions. As examples he mentions the rules about using another person’s horse without the latter’s permission and about the value of testimony given by slaves or serfs.156 Evaluation: Presumably the reference is not to article 63 of the Expanded Pravda (slave stealing horse), but to article 46, the general provision dealing with theft by a slave. The Ecloga provision Kalachov has in mind is Title 17 article 12. Its parallel in the Expanded Pravda is article 121, not the general rule of article 46. The two provisions follow (first the one from the Ecloga, then the Russian provision, in Kaiser’s translation). “If the owner of a slave who has committed theft wants to keep his slave, let him compensate what has been stolen. If he does not want to receive his slave [back], let him hand him over in full ownership to him who suffered the theft.”

“If a slave steals from someone, then [the slave’s] lord is to redeem him or give him up together with him with whom he stole, but he need not give up the [slave’s] wife or children; but if they will have stolen and hidden what they have stolen together with the slave, then [the lord] may either give them all up, or redeem them; if those who stole and hid [the stolen goods] with him be free [men], then [they are to pay] the prince a fine.”

The option for the slave’s master to pay up or hand over the slave in case of theft or other injuries caused by the slave is well-known in Roman law.157 Article 121 is the last provision of the Expanded Pravda and 153 154 155

156 157

Kalachov, 243.

Sergeevich, Lektsii, 94. In similar vein, D’iakonov, Ocherki, 50. In his chapter on inheritance law, Sergeevich returns more extensively to this matter. Sergeevich, Lektsii, 94; D’iakonov, Ocherki, 49, remarks that certain provisions of the Expanded Pravda on inheritance and guardianship are very similar to Ecloga provisions. Kliuchevskii, Vol.1, 210-211. See Inst. 4, 8, 1-5 and other sources which deal with the so-called noxal actions.


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probably belongs to its most recent layer, in any case after the rule of Vladimir Monomakh (1113-1125), and possibly as late as the end of the 12th century. But even at such a relatively late date, the availability of the appropriate Byzantine texts (Ecloga or Procheiron) is unlikely, as has been demonstrated above. Article 46 of the Expanded Pravda, referred to above (on thefts by slaves in general), offers a curious feature which, to the best of my knowledge, has escaped the attention of the numerous scholars who have concerned themselves with the question of Roman law influence in early Russian law. Among the considerable number of Expanded Pravda provisions which in one way or another deal with theft, article 46 is the only one which sets a double-value fine. This was a typical Roman law institution and it appears as a corpus alienum in the Russian law. It is in the first part of the Expanded Pravda, but is absent in the second part of the Short Pravda (the Pravda of Iaroslav’s sons), so it could tentatively be dated in the last decades of the 11th century. The double-value fine has disappeared in later legislation, especially in the Statute of Monomakh (the second main component of the Expanded Pravda). Would it have been a one-off legislative attempt by a Kievan prince, suggested by his Greek bishop, and subsequently abandoned because it did not agree with Russian tradition? As mentioned earlier, the 911 treaty between the Russians and the Greeks included the threefold fine for theft; in the 944 treaty this was replaced by a double-value fine. As to the question of testimony given by slaves or unfree persons, Kalachov’s reading of the provisions concerned is imprecise. The rule is not (as Kalachov avers): “A slave does not testify.” But: “Neither against or for his master does the slave testify.” (Ecloga, XIV, 5)158 According to article 66 of the Expanded Pravda in Kaiser’s translation: “[Free men] do not rely on the testimony of a slave; but if there be no free man [to testify], then, if necessary, refer to [the testimony] of a boyar’s overseer, but do not rely upon other [slaves]. And in a suit [over] a small [sum] refer to [the testimony of an] indentured labourer.”

Three different legal systems (Justinian, the Ecloga, and the Expanded Pravda) each attempt to cope in their own way with the problem of the slave’s testimony; none of them exclude it outright. In the second half of the Expanded Pravda, the so-called Statute of Monomakh, there is a clearly discernible block of provisions devoted to 158

Whether this rule has actual Roman law roots seems quite uncertain. The chapter on witnesses in Justinian’s Novellae (90, esp. 1 and 6) demonstrates a general aversion against the testimony of witnesses, especially when the social position of the witness is inferior, without forbidding testimony by slaves outright.

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inheritance law (arts.88-106).159 Sergeevich has been the chief advocate160 in arguing the Byzantine origin of at least part of the contents of this section of the Statute of Monomakh.161 The chief Byzantine source considered in this connection is always the Ecloga. It is worth repeating that Sergeevich does not claim that the authors of the corresponding sections of the Expanded Pravda consulted the Ecloga (it is generally agreed that around the time of the compilation of the Expanded Pravda the text of the Ecloga, and certainly not its Old-Russian translation, were available), but that a general knowledge of Byzantine inheritance law, as reflected by the Ecloga, could have been present in the ecclesiastical courts which would deal, as a rule, with cases of inheritance law. Byzantine law would then have reached the Expanded Pravda through a kind of osmotic process. The basic provision of the ‘inheritance block’ is article 90. It consists of two separate rules, the first one, in Kaiser’s translation: “If a peasant dies, then his estate [escheats] to the prince.” Commentators agree that the rule refers only to the case that the peasant dies without sons. Sergeevich connects it with Ecloga VI 6, which states that half the estate of a person who does not have relatives as heirs passes to his wife, and the other half to the fiscus, and that the whole estate passes to the fiscus if he also does not have a wife.162 The similarity is obviously remote. The question has been extensively discussed in Russian literature and nobody appears to agree with Sergeevich. Baranowski offers an extensive summary of the discussion and has added his own reasoned refutation of Sergeevich in this matter, so I shall just refer to him here.163 The second sentence of article 90 concerns the case when the peasant dies without sons, but leaves daughters. They then receive a certain portion, but only when they are “at home”, not when they are married. Sergeevich asserts “Greek-Roman” influence, but does not indicate a source. The rules of article 90 can be regarded as basic in this section of the Expanded Pravda, because they concern the bulk of the population, the 159

160

161

162 163

Arts.88 and 89 concern the general status of women and unfree persons and can be considered as connected with inheritance law. Arts.96 and 97 have no connection at all with inheritance law and must have been inserted at this place at some later moment. A few other pre-1917 authors (such as Nevolin) have expressed themselves more briefly, but in similar vein as Sergeevich; see the summaries of their views in RP II and in Baranowski under the provisions concerned, esp. art.90. Most authors agree on considering Vladimir Monomakh as the source of this section. See, for instance, an authoritative scholar such as Zimin in Pravda Russkaia, 232-234, who presents plausible arguments for such a view. Sergeevich, Lektsii, 556. Baranowski, 604-616, esp. 609.


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smerdy, the dependent peasants. The next provision (art.91) discusses the inheritance of the sons and daughters of boyars. The only reason Sergeevich mentions art.92 of the Expanded Pravda as an example of Byzantine (Ecloga) influence is the fact that the rule of art.92 does not distinguish between sons and daughters as beneficiaries of their father’s will.164 Articles 93-94 and 101-102 are mentioned together by Sergeevich as reflecting the principle from the Ecloga (II 6) that after the death of one of the spouses the estate was not divided amongst the children but remained in the hands of (under the management and in the possession of) the surviving spouse. This rule is apparently not derived from older Roman law. Article 93 does not confirm this principle but only provides that the widow is entitled to what her husband has specially assigned to her. Article 94 regulates the fate of the estate in case of a subsequent marriage of the widowed father; then the children of the first wife take their mother’s share. This can also hardly be considered a confirmation of the Ecloga principle.165 The text of article 102 also does not support Sergeevich’s allegation; it concerns the case that (adult) children do not wish to stay with their mother in the family residence (dvor); then the mother is allowed to stay and enjoy the share the husband left her. Only article 101 is fully compatible with the argument of Sergeevich: “If a woman promises to remain a widow after her husband’s death, then squanders [her late husband’s] property, she is to repay her children [the property she lost].” (Kaiser’s translation.) However, it only conforms to the principle underlying Ecloga II,6 (that the surviving spouse retains possession and management of the deceased spouse’s estate). The lengthy Ecloga provision describes various situations covered by this principle in detail, but not the case covered by article 101 of the Expanded Pravda. As precisely this provision is the only one to support Sergeevich’s theory, the argument becomes very feeble. Article 104 is devoted to the mirror image of article 94: what happens in case a widow remarries and has children from the second marriage? Sergeevich only mentions it as evidence of Byzantine influence because 164 165

Sergeevich, 554. Nevolin (R II, 646) notes that art.94 is close in content and wording to a parallel provision in the Ecloga, but does not indicate which provision. Baranowski observes (630), correctly I believe, that Nevolin obviously thought of Ecloga II 7, which also deals with the case of the remarriage of the widower and the first wife’s estate. I fail to see any close parallel between the two provisions. A second marriage of a widowed father was a common occurrence and any treatment of inheritance law that was more than summary would deal with the question. The fact that the Expanded Pravda which contains almost an entire ‘chapter’ on inheritance deals with the subject is by itself no indication that the rule was taken over from Byzantine law.

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the provision does not distinguish between sons and daughters. The rule simply provides that the children of the first marriage inherit their father’s estate and those from the second husband the latter’s estate. The evidentiary force of this totally obvious arrangement is zero. Article 105 is only mentioned in passing by Sergeevich as reflecting the principle of equality of sons and daughters; he does not return to it in his discussion of inheritance law. The Court Law for the People The Court Law for the People (Zakon Sudnyi Liudem, ZSL) is the most frequently quoted foreign source for the RP. Kalachov mentions the following provisions: on damaging arms, which is almost identical in the so-called Concordance version of the ZSL (and in some copies of the Expanded ZSL) and in article 18 of the Short Pravda;166 the provision on bezchestie (dishonour, insults) in some of the Concordance copies and in some of the Karamzin group copies of the Expanded Pravda;167 and the provision o stoge (haystack), also in some of the Concordance copies (and in some copies of the Expanded ZSL) and in some of the Karamzin group copies.168 D’iakonov’s views have already been referred to above: he considered the ZSL the most important conduit for Byzantine influence. From the Short Pravda he mentioned articles 12 and 38 (unauthorized use of another person’s horse and the killing of a thief during the night), adding that there were probably many more borrowings in the Expanded Pravda.169 Among the Soviet authors, Tikhomirov is the one who has been most involved in comparative studies of the ZSL and the RP. In his main work on the RP, he referred to the rules in the Short Pravda on the unauthorized use of another person’s horse (art.12) and the damaging of another’s weapons or clothing (art.18) as having been borrowed from the so-called Expanded Version of the ZSL.170 But twenty years later (in 1961) in his study on the Expanded ZSL, he stated explicitly that the situation was actually 166 167 168

169 170

Kalachov, 247; the same rule also appears in a few copies of the Pushkin group of the Expanded Pravda. Kalachov, 247. Ibidem. V. Ganev, in the fundamental Bulgarian study on the ZSL, Zakon Soudnyi Liudŭm. Pravno-istoricheski i pravno-analitichni prouchvaniia, Sofia, 1959, 112, agrees with Kalachov and simply refers to the latter’s argumentation. D’iakonov, Ocherki, 49. Kliuchevskii, Vol.1, 211, mentions the same provision, as being connected with the ZSL. Tikhomirov, Issledovanie, 58-59.


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the other way around and that the RP was the lender and the ZSL the borrower, without offering much explanation for this conversion.171 Evaluation: Kalachov’s references are all to provisions which appear only in the Concordance version of the ZSL.172 This version is reliably dated in the beginning of the 15th century.173 The Expanded Pravda itself is of a much earlier date. Kalachov’s parallels concerning insults and the haystack are found, however, in most copies of the Pushkin and Karamzin groups of Expanded Pravda manuscripts. In these copies, they are inserted at the end of the Expanded Pravda manuscript as an appendix. The convoys of which these copies form part all include the ZSL. In some copies, the texts of the RP and the ZSL have been mixed up. In the Academy of Sciences edition of the RP, it is suggested that the editor or editors of these collections have tried to streamline the regulative material of the two sources.174 What can be said here without an exhaustive enquiry into the origins of these so-called Russian articles (russkie stati) from the ZSL, seemingly appended to some copies of the Expanded Pravda, is that they are unquestionably of comparatively late origin, that they belong to the original cores of neither the Expanded Pravda, nor the Expanded ZSL, and that their origin in any case is not—as it is for most other provisions of the ZSL—in the Ecloga or any other Byzantine source. Article 18 of the Short Pravda and the ZSL provision (found in the Concordance version and in some copies of the Expanded ZSL) concerning the damaging of arms or clothing represent a special story.175 The rule appears in the Short Pravda, is absent in most copies of the Expanded Pravda and included only in the Pushkin and Karamzin groups of copies (in the latter as part of the ‘Russian articles’). The wording of the provision in the various texts of the Expanded Pravda and the ZSL is almost identical, but significantly different in the Short Pravda. In view of the far greater age of the Short Pravda, as compared with the Expanded and Concordance versions of the ZSL (note that the provision is lacking in 171 172

173 174

M.N. Tikhomirov, Zakon Sudnyi liudem. Prostrannoi i Svodnoi redaktsii, Moskva, 1961, 21. Baranowski, 222, also points out this incongruity. The provisions on the destruction of arms or clothing and on the haystack are also included in the so-called Archeographic Copy of the Expanded ZSL. See Tikhomirov, op.cit., 77-78. Tikhomirov, op.cit., 26. RP I, 296, 325.

175

It has briefly been discussed above in connection with Maksimeiko’s claim that the rule is inspired by the Lex Aquilia.

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the older Short ZSL), the Short Pravda must be regarded as the original source.176 As to the suggestions of D’iakonov, the case of riding another person’s horse without the latter’s permission (art.12 Short Pravda) has been extensively discussed above in connection with the views of Maksimeiko. Article 38 concerns the killing of a thief during a night-time break-in, this remains unpunished. If he is captured, he must be handed over to the prince’s court the next day and may not be killed. A very similar rule may already be found in Exodus XXII, 1. The Expanded ZSL has a parallel provision, but its wording differs significantly. Even if the chronology would allow it, borrowing from the Expanded ZSL would therefore be less likely than from the Old Testament. Baranowski observes correctly that the rule is found in the most diverse legal systems.177 Procheiron Two provisions from the Procheiron are suggested by Kalachov as paralleling similar provisions of the RP: Procheiron 39, 3 (on killing a burglar during night-time) and articles 21 and 38 of the Short Pravda and article 40 of the Expanded Pravda; and Procheiron 39, 55 (on the master’s liability for theft committed by his slave) and articles 63, 120 and 121 of the Expanded Pravda.178 Evaluation: Article 21 of the Short Pravda (concerning the killing of the prince’s steward) is obviously not connected with Procheiron 39, 3. Articles 38 of the Short Pravda and its counterpart in the Expanded 176

177 178

A not unimportant element in the discussion concerning these provisions is the term port (clothing) in art.18 Short Pravda against topor (axe) in the other texts. In his older writings, Tikhomirov (Issledovanie, 58-59) argued that “axe” followed logically after “lance” and “shield”, and that port was a scribe’s error; the Short Pravda had borrowed accordingly from the ZSL, and not the other way around; he speculated that elements of the ZSL were already available in Kievan Rus’ at a very early moment, before the actual text of the ZSL reached Kiev. As mentioned, Tikhomirov later retracted this view. The speculation is indeed unwarranted and, moreover, it is improbable that a scribe would change a perfectly understandable word (topor) which was more or less what could be expected after lance and shield, by something quite different. It is of course much more likely that the expression port in the sense of clothing did not quite make sense to a scribe who was working on the text a few centuries later; by replacing it by topor he found an acceptable escape out of his dilemma. This also seems to be the view of Baranowski in his recent commentary to the RP, op.cit., 248, who also points to the chronological impossibility of the Short Pravda borrowing from the ZSL. Baranowski, 313. Kalachov, 244-245; additionally the same provision from the Rostovskii Copy is mentioned, as referred to above.


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Pravda (art.40) come closer, as they also concern the excusable killing of a night-time burglar. The contents of the Russian provisions are still quite different from the short Procheiron provision; they are in fact much closer to Exodus 22, 1, which also explicitly indicates that if the thief is apprehended after sunrise, he may not be killed. The distinction between nocturnal and daytime killing of a thief is also made in classical Roman law, according to a statement by Gaius who quotes the Twelve Tables law (D. 9, 2, 4). The biblical rule still appears to be closest to the RP provisions and may very well be their source. The second case (the master’s liability for theft committed by his slave) has already been discussed above. In such cases, he may either reimburse the victim or hand over the slave. The wording of the Expanded Pravda provisions bears little similarity to the corresponding rules of the Procheiron. Chapter on Witnesses (This text has nothing to do with the text “On Witnesses” included in the Knigi Zakonnye, discussed above; the latter text is of predominantly Byzantine origin and based mainly on the Procheiron and the Ecloga.) In a number of copies of Expanded Pravda manuscripts (of the Rozenkampf and Ferapontov recensions), the RP text is immediately preceded by a few provisions “On Witnesses” and “On the Bloodied man”. These provisions are based, according to Kalachov, on various Byzantine sources.179 The text of the provisions is very similar or identical to articles 66, 29, 30 and 31 of the Expanded Pravda. With regard to article 66 Kalachov refers to the Byzantine rule “A slave cannot testify”. This question has already been discussed above in the section on the Ecloga. As to the “bloodied man” (krovavyi muzh), he first appears in the Short Pravda (art.30); the main point of the rule is that a man who is bloodied and bruised does not have to produce an eyewitness of the fight he had been in. Kalachov does not present any Byzantine parallels. Article 29 of the Expanded Pravda offers a more elaborate version of the rule. Together with the provision on the “bloodied man” the following two provisions of the Expanded Pravda (arts.30 and 31) are presented by Kalachov in the same argument: they appear together in a separate cluster in kormchaia collections in a context which consists predominantly of Byzantine texts—so they are probably also of Byzantine origin, and the identical or similar provisions of the Expanded Pravda therefore too.

179

Kalachov, 248-251. The texts concerned may be found in RP II, 231, 262-263.

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Evaluation: The argument is upside-down. All provisions concerned have their roots in the Short Pravda, while on the other hand no Byzantine parallels have been produced. A Byzantine origin is therefore very improbable. Of course, this still leaves the problem of why a few provisions from the RP have been included almost verbatim (and superfluously) in the kormchaia collections, in almost all cases even just before the text of the RP itself. A possible explanation would be that they originally constituted a separate enactment of an early Kievan prince and that this enactment was subsequently, together with many others (including also the Short Pravda), incorporated during the final editorial process of the Expanded Pravda. The latter text was frequently included in the kormchaia, but, supposedly, by some editorial oversight, the original legislation on witnesses was also added. Church Statutes The three church statutes of, respectively, Vladimir, Iaroslav and Vsevolod are discussed by Kalachov as possible sources of the RP.180 They are mentioned here for the sake of completeness. Considering that they themselves belong to the principal sources of early Russian law, they must first be investigated in the context of this paper, not as sources of the RP, but for traces of Roman or Byzantine influences. Evaluation: The church statutes of Vladimir and Iaroslav—unlike the RP which was lost for many centuries and then rediscovered—defining the fundamental relationships between the Russian church and the state, survived in numerous copies from different times. They were studied more extensively during the 20th century and this work culminated in several studies by Ia.N. Shchapov.181 Shchapov demonstrated convincingly that the original nuclear text of Vladimir’s statute, dating from the period immediately following the conversion of Russia, provided the church (which at that time was not yet a significant landowner) with the necessary income to carry out its work, while incorporating it at the same time into the state’s governmental structure. This was done by granting the church tithes from all princely 180 181

The church statute of Vsevolod is only mentioned in passing in Kalachov’s text. It is based anyway on the church statute of Vladimir. Kniazheskie ustavy i tserkov’ v Drevnei Rusi XI-XIV vv., Moskva, 1972, and Drevnerusskie kniazheskie ustavy XI-XV vv., M., 1976, as well as numerous other papers. A full bibliography of Shchapov’s works in A.N. Sakharov (ed.), Ot Drevnei Rusi k novoi Rossii [Shchapov Festschrift], Moskva, 2005, 389-411.


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income182 and jurisdiction in certain matters violating the new Christian moral precepts. These matters concerned primarily marriage and sexual morality, but also sorcery and other pagan survivals and inheritance disputes. Half a century later, the list of offences was further elaborated in Iaroslav’s statute which (in its nuclear form) constituted a kind of penal code devoted mainly to offences against sexual morality; a few other offences harmful or objectionable to the church were added. Moreover, people connected to the church (clerics, but also lay people attached to the church) were removed from secular jurisdiction and placed under the jurisdiction of the bishop (metropolitan). The system introduced by these statutes represented a fundamental reform of Russian law, because nothing like it had existed before. Many authors have noted that the RP and the church statutes complement each other in that there is hardly any overlap; the oldest core of the RP consisted of customary law, which then was subsequently replaced and eased out by princely legislation. This core dealt mainly with a traditional range of offences (violence against persons, insults, theft, etc.), to which the church statutes added a list of new offences reflecting behaviour rejected by the new religious doctrine, and dealt with, if necessary, through extra-legal procedures in pre-Christian times. Obviously, the basic ideas underlying the church statutes were of Byzantine origin, but they received a peculiarly Russian twist: church and state did not co-exist as two more or less equivalent powers, as in the Byzantine world, but the church was incorporated to a great extent into the texture of the state’s institutions; in exchange for its loss of independence it received important judicial powers. This explains why no direct textual borrowings from Byzantine sources have been identified in the church statutes, although the general idea of assigning the church an important role in the administration of justice is of course of Byzantine origin; the contents of the statutes of Vladimir and Iaroslav, the latter in particular, inspired by the new Christian teaching, have equally been derived from Byzantine examples. Shchapov has pointed out that none of the descriptions of sexual offences in the statute of Iaroslav can be connected to a particular Byzantine example, although generally similar situations are dealt with in the Procheiron, the Ecloga, the ZSL, the Knigi Zakonnye, and other Byzantine or Byzantineinspired sources.183 182

183

A.E. Presniakov, Lektsii po russkoi istorii, Vol.I, Kievskaia Rus’, Moskva, 1938, 115ff., has drawn attention to the fact that the Old-Russian tithe, payable only by the state (the prince), differed from the more comprehensive West-European tithe. Shchapov, Kniazheskie ustavy, 250.

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To return to Kalachov’s observation concerning the similarity between articles 2 and 31 of Iaroslav’s statute (concerning rape and calling a woman a whore) and the provision on sexual insults (bezchestie) in a number of copies of the Karamzin group of the Expanded Pravda, and between article 49 of the same statute (arson) and article 83 of the Expanded Pravda: The provision on bezchestie is part of the so-called ‘Russian articles’, which have been discussed above. They constitute a comparatively late addition to certain manuscripts of the RP. Their origin is not yet quite clear. Moreover, the similarity between the provisions is only very general, in that they deal with related subjects. The similarity between the two arson provisions is somewhat closer, inasmuch as they both deal (among other things) with setting fire to a barn (gumno). The provision in the statute of Iaroslav represents a later addition (according to Shchapov’s view on the archetype of the statute) and could therefore very well have been taken over from the older provision in the Expanded Pravda. Treaties With Byzantium These are not mentioned by Kalachov, but as referred to above in the discussion of the views of Salogubova, they form part of the debate. Sergeevich, for instance, points to several provisions which must be considered as originating in Byzantine law.184 Sergeevich presents a credible argument for the viewpoint that in fact the Greeks were successful in securing the dominance of Greek law. The treaties of 911 and 944 do refer a few times to the applicability of “Russian custom” (this is probably the best equivalent of zakon russkii), and this has been gratefully picked up by many authors as the earliest written reference to Old-Russian law. Sergeevich indicated a number of crucial instances where Greek law appeared to prevail: capital punishment for homicide, instead of the traditional Russian blood feud; the double or threefold penalty for theft; the right to inherit of distant relatives in the absence of close relatives, etc. However, the Greek (Byzantine) elements in the treaties do not reappear in later Russian legal sources and apparently had no further effect on the development of Russian law.

8. Later Developments As has been noted above, major Byzantine legal texts, in particular the Procheiron, became accessible in Russia through Russian translations after the arrival of the Serbian kormchaia and the emergence of the so-called Russian redaction of the kormchaia in the last quarter of the 13th century. 184

Sergeevich, Lektsii, 639-666.


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At about the same time or somewhat later, a Slavonic translation of the Ecloga will also have reached Russia, where it was subsequently included, together with the Procheiron translation, in the text of the Merilo Pravednoe. In this period, Russia—broken up into separate principalities, but still united under a single metropolitan—was slowly recovering from the devastation caused by the Mongol conquest of most of the country. No major legislative monuments from the 14th century have survived or have in fact existed. If they had, they would have been included in kormchie and other collections of legal texts, as were older texts from the preceding three centuries. In surveying developments in Russian legal history in the post-Kievan period, it is important to stress that Byzantine influence was not a matter of continuous interaction, by the exchange of personnel and/or texts, but the result of the availability of a very small number of translated Greek texts. Once they had arrived, they could exert their influence over a very long period. Greek experts were not needed. The most important legislative milestone between the RP and the legal code (Ulozhenie) of the Moscow grand prince Ivan Vasil’evich (Ivan III) of 1497 was the Judicial Charter of Pskov (Pskovskaia sudnaia gramota).185 Several commentators have noticed that there are minor, but clear, traces of Byzantine influence in a small number of provisions of the Pskov Charter. The Byzantine texts concerned are the Ecloga and the Farmer’s Law (and other texts from the Knigi Zakonnye).186 Another legislative text which bears clear traces of Byzantine influence is the “Metropolitan’s Justice” (Pravosudie Metropolich’e), a short and somewhat enigmatic text, as opinions on its date of origin differ widely, from the 13th to the 16th century.187 The Code of Ivan III of 1497 marks the definitive end of the Kievan period of Russian legal history. By this time, Byzantium had succumbed to the onslaught of the Turks and had exited from the political stage, which implied the disappearance of the Byzantine legal system as a living entity. 185

186

187

The most recent comprehensive study of the Pskov Charter is Iu.G. Alekseev, Pskovskaia sudnaia gramota. Tekst. Kommentarii. Issledovanie, Pskov, 1997 (not available to me). See, also, the introductions to the Pskov Charter text in PRP II, 282-285 (by A.A. Zimin) and Rossiiskoe Zakonodatel’stvo I, 321-331 (by Iu.G. Alekseev). The oldest part of the Pskov Charter, which consists of several chronological layers, is probably from 1397, if we follow Alekseev on this point. Alekseev, op.cit, 331; E.K. Piotrovskaia, “Pskovskaia sudnaia gramota i kompiliatsiia «Knigi Zakonnye»”, A.P. Pavlov (ed.), Rossiiskoe gosudarstvo v XIV-XVII vv. [Iu.G. Alekseev Collection], S.Peterburg, 2002, 167-172. Text in PRP III, 429-432, commentary by V.N. Avtokratov, 438-457; also (Russian text and English translation) in Kaiser, Laws, 107-110. See, also, Cherepnin, Arkhivy II, 25ff.

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In the extensive literature on the Code of 1497, nobody has claimed the presence of Byzantine or Roman elements.188 The Code confines itself anyway mainly to topics concerning criminal law and procedure. The same goes for its successors in the following century, the Codes of 1550 and 1589 and the so-called Combined Code (Svodnyi Sudebnik) of 1606/1607. The Code of 1550 was accompanied by a comprehensive text embodying church law, phrased in the form of answers to 100 questions posed by tsar Ivan IV and known accordingly as the “Hundred Chapters” or Stoglav of 1551.189 Many provisions of the Stoglav are derived from different kormchie and in this way Byzantine law could penetrate.190 Interestingly, the era of Ivan IV (Groznyi) was characterized (among other things) by increased contacts with Western Europe. Ivan’s library contained manuscript copies of the Corpus Iuris and other Roman law texts according to a protestant minister from Livonia who was allowed access. The library was lost in a fire when the Poles occupied Moscow in 1612.191 To return to a point made in the beginning of this section, the recognition, if not the impact, of Byzantine law reached its climax long after Byzantium had become the capital of the Turkish empire. Medieval Russian law ended and modern Russian law made a beginning when a new comprehensive code of law was enacted by the second Romanov tsar, Aleksei Mikhailovich, in 1649, the Sobornoe Ulozhenie (the Council Enactment or Code), as it was adopted in consultation with the Church Council and with the boyars and other nobles.192 The Sobornoe Ulozhenie remained officially in force until the October Revolution and was the starting-point for the Full Collection of Laws (Polnoe Sobranie Zakonov), effected in the middle of the 19th century under the direction of M. Speranskii, which in turn was the basis for the new codification which was gradually embarked upon in the Russian Empire. 188

189 190

On the Code of 1497 generally: I.Ia. Froianov (ed.), Sudebnik Ivana III. Stanovlenie samoderzhavnogo gosudarstva na Rusi, S.Peterburg, 2004. Text of the Code in PRP III, 346-374, commentary (by A.G. Poliak), 374-413; RZ II, 54-62, commentary (by S.I. Shtamm), 62-97. Text with comments by T.E. Novitskaia in RZ II, 242-500.

191

192

Ibidem, 248. A.V. Soloviev, “Der Einfluss des Byzantinischen Rechts auf die Völker Osteuropas”, Zeitschrift der Savigny-Stiftung, Romanische Abteilung, Band 76 (1959), 432-479, at 464.

The entire volume of PRP VI is devoted to text and commentary of the Sobornoe Ulozhenie. Also in RZ III, 75-443 and in the volume edited by A.G. Man’kov, mentioned below. English translation by R. Hellie, The Muscovite Law Code (Ulozhenie) of 1649, Part 1: Text and Translation, Irvine, CA, 1988.


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In its Preamble, the Code of 1649 stated unequivocally that the “city laws” (gradskie zakony, a term which usually referred to the Procheiron and the Ecloga) of the Greek emperors were among the sources consulted and utilized. Opinions differ as to the exact size of the element borrowed from Byzantine law. In a special study by Tiktin, more than 100 places were identified.193 Later authors reduced this number very considerably, and some indeed deny or disregard the Byzantine element completely.194 With Peter the Great, Russia opened itself up to Western Europe and this implied that the knowledge of Roman law and of legal institutions based upon it could reach Russia directly, without the Byzantine intermediary. This process accelerated in the 19th century and constitutes an on-going story.

9. Conclusions The most convenient way to start the conclusions is by pointing out that the claims for direct Roman law influence on early Russian law cannot in any individual case be corroborated. Moreover, such influence is also extremely unlikely if one considers the conditions of early Christian Russia. Virtually the only contacts at a more intellectual level between Russia and the Christian world were in the presence of a small number of Greek clergy. Some of these will have had a knowledge of Byzantine canon law and, as explained above, this included certain sections of secular law. This knowledge was based exclusively on Greek-language sources, so whatever elements of Roman law would have been present would at least have to pass through this filter. The only example we have come across in our investigation and which might possibly qualify in this respect is the double-value fine in one particular instant of theft, defined in article 46 Expanded Pravda. The double-value fine is well known in Roman law and otherwise unknown in Russian law. A different picture emerges when Byzantine law from the great legislative era of the 8th and 9th centuries is considered (Nomos Georgikos, Ecloga, and Procheiron). According to the most recent and reliable studies, the presence of a Slavonic translation of the Procheiron is at least certain with the arrival of the Serbian Kormchaia in Russia in 1273. Small and relatively unimportant parts of the Ecloga and the Procheiron were included in

193 194

N.I. Tiktin, Vizantiiskoe pravo kak istochnik Ulozheniia 1649, Odessa, 1891.

Cf. A.G. Man’kov, Ulozhenie 1649 goda. Kodeks feodal’nogo prava Rossii, Leningrad, 1980, 18-19. (ed.), Sobornoe Ulozhenie 1649 goda. Tekst. Kommentarii, Leningrad, 1987, regards the Lithuanian Statute of 1588 as the principal source of the Sobornoe Ulozhenie. K.A. Sofronenko regards the words in the Preamble about the “laws of the Greek emperors” as sheer window-dressing in order to enhance the status of the Code; in his introduction to the text of the Code in PRP VI, 12.

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the early Slavonic Kormchaia which came to Kiev perhaps as early as the 11th century; as explained above, almost nothing is know about the fate or impact of this document. It is, of course, not at all impossible that Slavonic translations of the Ecloga and Procheiron had already reached Russia in the course of the 12th century. The composition of the earliest version of the Merilo Pravednoe (which in its known copies included the two Greek laws) is sometimes dated as far back as the 12th century. A third known channel is the collection known as Knigi Zakonnye, of which the Nomos Georgikos is the main component, but which also includes a ‘Law on Penalties’, based primarily on the criminal law parts of the Ecloga (Title 17) and the Procheiron (Title 39). When we consider the possible influence of Byzantine law on early Russian law, the following points deserve to be stressed: — — — —

the church hierarchy, in particular ecclesiastical jurisdiction, was the medium through which this influence was exercised; the subject matter of this influence consisted mainly of questions in which the church had a special interest because of their connection with the church’s teaching; this implied that the legal rules concerned usually had their roots, not in Roman law, but in the moral precepts of the Christian religion; full-scale influence of Byzantine canon law through the church courts only started late in the 13th century, although incidental incursions may have occurred as early as the 11th century.

With these considerations in mind, one could expect the presence of Byzantine elements especially in the church statutes of the princes. It has been noted that the Church Statute of Iaroslav, a brief penal code in which offences against sexual morality predominate, seems to be close in spirit to, for instance, Title 17 of the Ecloga, without any clearly identifiable borrowings. In the purely secular law of early Russia, especially the RP in its two versions, not only the Roman, but also the Byzantine element is absent. This trend continued for a long time, as evidenced by the Charter of Pskov in the later middle ages. The explanation, as several Russian and Soviet legal historians have pointed out, is that traditional Russian law, as it kept developing independently, appeared to be more in tune with the social needs of medieval Russian society, apart from the quite considerable swathe effectively under the control of church jurisdiction.


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In this respect, the incident referred to in the beginning of this chapter is worth recalling. Its inclusion in the Primary Chronicle has often served as an illustration of a range of factors defining early Russian conditions: the relationship between prince and church and their respective roles, the relationship between Russian custom and innovative Greek legislation, the emergence of the state, a.o. The prince protested against the (Greek) bishops’ suggestion that he should execute robbers and brigands, saying that he was afraid to sin (i.e. act against the Russian custom of coping with homicide through blood-feuds and composition payments). Then they assured him that it would be his duty as a Christian ruler and that he could use the wergild to pay for his army. Beyond the question which has been central in this chapter, the debate itself about this question, which has been going on for more than a century and a half, invites a few comments. The first one concerns the danger of value judgments in legal history or comparative law: one legal system is considered as better than another. In the present discussion, it occurs in two forms. Among Western lawyers, the superiority of Roman law is almost axiomatic. What is meant by it, presumably, is that the Romans had developed a legal system which possessed not only great sophistication, but which was also able to adapt itself effectively to changing circumstances. It also excelled in clear definitions and had given rise to a culture of brilliant legal rhetoric. The idealization of Roman law is most obvious in the evaluation of Byzantine law. Some of the authors active in this field make no effort to hide their disdain; Sohm-Mitteis-Wenger speak of a history of continuous decline, ending in an “unrecognizable dried-out mummy”.195 The other value judgment is current among Russian and especially Soviet authors. The superiority of anything indigenous is then considered so important that any sign of foreign influence is looked at suspiciously or even rejected out of hand. Both judgments, or rather prejudices, disregard that legal systems have a purpose, have a job to do. There can of course be much disagreement about such a purpose, but most people would at least be able to reach agreement on a few points. Then one should try to establish how well a particular legal system succeeds in doing its job. There is no reason to assume that Byzantine politicians and lawyers were unusually stupid in preferring their actual legal system over Roman law. Medieval societies in general coped much better with their legal needs without Roman law. The distinction between primitive and more sophisticated legal systems may be good for the morale of lawyers; otherwise, it does not serve a useful 195

R. Sohm/L. Mitteis/L. Wenger, Institutionen. Geschichte und System des Römischen Privatrechts, München/Leipzig, 1931, 137.

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purpose. The nationalist bias against foreign legal influences is even more dysfunctional; why reject a legal institution which could play a useful role for the only reason that it has been imported? The second comment concerns the rigidity of many lawyers, including legal historians, in the selection of their conceptual instruments. Medieval law is generally described according to present-day categories, such as public law, civil law, family law, criminal law, etc. Often enough, this approach is then combined with the prejudice indicated above: the Russkaia Pravda or the early Germanic laws are called primitive because they fail to distinguish between civil and criminal law. The circle of dubious concepts may also be widened to include such things as “the state”, “legislation”, and in fact law itself. One should never forget that all these things (unlike language, for instance) did not exist until we thought of them, or rather invented them. It is therefore meaningless to observe, as Russian historians often do, the emergence of the state at a certain moment in Russian history, or to debate whether the Russkaia Pravda or the Ecloga or any other medieval legal source constituted “legislation”. In such discussions, everything depends on the definition preferred and there are no objective yardsticks to decide whether one definition is better than another.

Chapter 4 Land Tenure, the Druzhina and the Nature of Kievan Rus’ The question of land tenure, of how land was used, and by whom, is of particular importance for an understanding of Kievan Russia. This question can also be considered from a legal point of view and such an approach would even have certain advantages by encouraging a more precise determination of the ramifications of the usage of land. A legal approach would require an adequate set of conceptual tools. The importance of the question rests on a variety of reasons. The first one is that an elucidation of the system of land tenure contributes powerfully to the visualization of Kievan Russian society and culture. The same can, of course, be said of, say, the study of the role of towns in Kievan Russia or of the system of social classes. But the way a society, a polity, handles the use of land would normally also embrace the rural-urban relationship and the social hierarchies. If a sufficiently clear picture of the use of land can be assembled, we already have the landscape in front of us in which the other details can be painted. Such a visualization is less problematic where historical periods and societies are concerned which are closer to us in time and affinity and where a multitude of sources of information is at our disposal. For Kievan Russia, the literature may be vast, but the primary sources (as explained in the chapter on sources) are scarce. This has resulted in strongly diverging views on its socio-political and economic characteristics. A second point concerns the role Marxist-Leninist ideology has played, and in fact continues to play, in the study of Kievan Russia. Land, as one of the primary factors of production, is one of the most basic concepts for dialectical materialism and Soviet historians of Kievan Russia have assigned it a correspondingly central place in their studies. Thirdly, the land issue has also loomed large in Western scholarship concerning Kievan Russia. It has often been expressed as the question concerning the feudal character of Kievan Russia. In Soviet scholarship, the feudalism question is of course intimately bound up with the more general question of land tenure. The conceptual framework of the legal aspects of land tenure, land ownership and related subjects lends itself to being treated separately. The other three questions (the ‘visualization’ of Kievan Russia, the MarxistLeninist approach to it, and the question of the feudal character of Kievan Russia) are so intimately related that they cannot very well be discussed in isolation.

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1. Land Tenure: The Legal Perspective An adequate set of conceptual tools would be required for a meaningful legal analysis, as we stated above. Modern concepts might not always be suitable. In particular, the ownership concept based on Roman law and dominant in the West since Napoleon is defective in this respect. It has made ownership the fundamental and pivotal right from which all other private law rights flow. The determination of ownership then becomes the first and most fundamental question to be solved in any legal relationship. Moreover, lawyers are often inclined to regard ownership as an inherent, almost physical, quality of a material object, to be established through ‘scientific’ observation and analysis. Marxism, true to its 19th century origins, did not offer an exception in this respect; ownership of the means of production was considered the basically decisive and determining factor for the entire economic, social, political and ideological superstructure. Outside the socialist world, this absolute ownership concept has retained its function as the central organizational principle of private law, although not without causing considerable strain. In the Soviet Union, this principle, notwithstanding its ideological qualifications, did not fit well into the political and economic reality. Declaring the land the inalienable heritage of the Soviet people was translated in legal terms as the single and indivisible state ownership of the land. Land ownership had, thereby, become almost irrelevant from a practical legal point of view. The real question was not any longer: Who is the owner? but: Who enjoys a particular (limited) right with regard to this piece of land? In constructing the socialist law concerning real property, the legal scholars of the Stalin era used the comparison with medieval law to find a way out of the dilemma. In his discussion of the rights in rem in a feudal system, the leading civil law scholar of that time, A.V. Venediktov, pointed out in his basic work on state socialist property, published in 1948, that the distinction between ownership and possession in such a system was blurred, that there was also not a clear line of distinction between ownership and various rights in rem, and that as a result several types of ‘ownership’ in one and the same object might co-exist.1 The same thought was expressed by the historian A.L. Shapiro, who even went so far as to assert that the Marxist definition of ownership did not embrace “all varieties of ownership existing under feudalism”.2 In a 1

2

A.V. Venediktov, Gosudarstvennaia sotsialisticheskaia sobstvennost’, Moskva, 1948, 102106. In the West, V. Gsovski had made a very much similar point in his work on Soviet Civil Law, Ann Arbor, MI, 1948, I, 576, 789.

A.L. Shapiro, “O prirode feodal’noi sobstvennosti”, Voprosy istorii, 1969, No.12, 5772.

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similar vein, at about the same time, A.Ia. Gurevich wrote in a discussion of West European feudalism: “Man did not relate to the land as to something alien and outside himself. Land was the condition for his existence, but there could not yet be any talk of any kind of exclusive rights to specific tracts of land […].”3

Similar views were expressed by other Soviet historians. O.M. Rapov wrote that the collection of tribute (dan’) by the Kievan prince during his winter circuit (poliud’e)4 was an expression of his supreme ownership (verkhovnaia sobstvennost’) of the lands of the tributary tribes.5 Shapiro remarked, not without justification, that the introduction of a term like “supreme ownership” was wordplay,6 but he himself had emphasized that in the case of dan’ we were dealing with a princely right over the land of his own principality.7 Some passages of the Primary Chronicle illustrate the various levels of princely rights of land tenure. One of the most famous concerns the entries for the years 946 and 947, after the grand princess Olga had inflicted a crushing defeat on the Derevlians who had killed her husband Igor in 945: “She imposed on them a heavy tribute, two parts of which went to Kiev, and the third to Olga in Vyshgorod; for Vyshgorod was Olga’s city. She then passed through the land of Dereva, accompanied by her son and her retinue, establishing laws and tribute. Her trading-posts and hunting-preserves are still there. Then she returned with her son to Kiev, her city, where she remained one year. [947] Olga went to Novgorod, and along the Msta she established trading-posts and collected tribute. She also collected imposts and tribute along the Luga. Her hunting-grounds, boundary-posts, and trading-posts still exist throughout the whole region, while her sleighs stand in Pskov to this day. Her fowling preserves still remain on the Dniepr and the Desna, while her village of Olzhichi is in existence even now.”8

One notices the existence of rights at three or four levels: the land of the Derevlians, where Olga established laws and tribute; her own principality of Kiev; the town of Vyshgorod, which appears to be more of her private property; her trading-posts and hunting-grounds; and her village 3

4

A.Ia. Gurevich, Problema zemel’noi sobstvennosti v dofeodal’nykh i rannefeodal’nykh obshchestvakh Zapadnoi Rossii, Voprosy Istorii, 1968, No.4, 88-105.

5

A description of the poliud’e is given by the Byzantine emperor Constantine VII Porphyrogenitus (913-959) in his De Administrando Imperio; English translation of the relevant text in S. Pushkarev (comp.), A Source Book for Russian History from Early Times to 1917, New Haven, 1972, 62.

6

O.M. Rapov, “K voprosu o zemel’noi rente v Drevnei Rusi v dofeodal’nyi period”, Vestnik MGU. Istoriia, 1968, No.1, 52-65.

Shapiro, op.cit.

Ibidem.

From the Cross/Sherbowitz-Wetzor translation.

7 8

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of Ol’zhichi, which as the name indicates is very much her own property (it would hardly have been mentioned otherwise).9 Another, even earlier passage in the Primary Chronicle, suggesting a multi-tiered system of land tenure, is an entry which deals with the earliest history of the Slavs in Russia. About one of the Slavic tribes, it reports: “The Polianians lived apart and were governed by their clans. For the Polianians had already existed even before the time of these brothers, and each one lived with his clan on his own place, belonging each to his clan. And there were three brothers […].”10

This text indicates, as was pointed out by Mavrodin and Froianov, that there was an awareness of tribal territory (where the Polianians “lived apart”) which was divided into a number of clan territories; smaller family groups would presumably ‘own’ land within the clan territory.11 Western authors, in tackling the question of land tenure in pre-Kievan and Kievan Russia, have occasionally demonstrated an awareness of the inadequacy of the modern ownership concept. Blum, for instance, who published several important papers in this field during the 1950’s and 1960’s and freely used the term “landownership”, observed that territorial peasant communes used land of which the prince was the nominal supreme proprietor, but which were de facto owned by them; the individual peasant held his land from the commune.12

2. The Nature of Kievan Russia: Soviet Approaches The plural “approaches” is not used without a reason. More recent Russian works, in particular by M.B. Sverdlov,13 have shown that even during the most repressive periods of Stalinism Soviet historians were less monolithic in their treatment of Kievan Russia than one would perhaps expect. Still, the unsuspecting Western reader will be struck by many common traits in the style and argument of Soviet historiography of the period in question. The most comprehensive factor is the acceptance (or rather imposition) of Marxism-Leninism as a scientifically verified 9

I.Ia. Froianov, in accordance with his generally dissident views, offers another interpretation of this passage; in Kievskaia Rus’. Glavnye cherty sotsial’no-ekonomicheskogo stroia, S.Peterburg, 1999, 137-139.

10

11

From the translation by Pushkarev, op.cit., which is clearer on this point than Cross/ Sherbowitz-Wetzor.

12

V.V. Mavrodin & I.Ia. Froianov, “F. Engel’s i nekotorye voprosy obshchinnogo zemlevladeniia na Rusi IX-XII vv.”, Sovetskaia etnografiia, 1972, No.1, 14-23.

13

J. Blum, “The Smerd in Kievan Russia”, The American Slavic & East European Review, Vol.12 (1953), 122-130, at 124.

M.B. Sverdlov, Obshchestvennyi stroi Drevnei Rusi v russkoi istoricheskoi nauke XVIII-XX vv., S.Peterburg, 1996, Chapter 3 (168-321).


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and therefore true doctrine, constituting the foundation of all scholarly work, including that of historians. For the latter, the tenets of historical materialism were of prime relevance. This doctrine postulated the phased advance of societal development through the stages of the ‘clan-tribal wayof-life’ (rodo-plemennyi byt), slave-owning, feudalism, and capitalism, until these various exploitative forms of production would be overthrown by a revolution which would introduce socialism, gradually to be transformed into communism. This pattern required Soviet historians to qualify the various phases of pre-Kievan and Kievan Russian history as either clan-tribal, slaveowning, or feudal. Once this had been done, the position taken could be used to draw further conclusions. The leading historian from the Stalinist era, B.D. Grekov, for instance, in his discussion of the formation of the first towns, first pointed to the existence of early towns, such as those mentioned in the 907 treaty with Byzantium. Then he continued that such early towns were not real towns, because a town would imply the existence of private property and a class society.14 So, on the basis of an allegedly scientific ideology Grekov stated that there were no towns in Russia at the beginning of the 10th century and the towns which he had identified before were declared to be non-towns. Another phenomenon, baffling to the uninitiated observer, was the mental anguish of some Soviet historians about slave-owning in early Russian history. If Kievan Russia was declared to be a feudal society and the prehistoric Slavic population found itself obviously at the stage of the clan-tribal existence, then how about slave-owning in Russia? Would it be possible, without offending against the scientific laws of social development, to pass directly from the tribal-clan phase to feudalism? The rigid schematism of the Marxist-Leninist approach was most debilitating in the Stalin era, although, as explained by Sverdlov, even then authors found ways around the most awkward ideological obstacles and engaged in debates appearing esoteric and abstruse to outsiders, but in fact usually concerning very real scholarly issues which however could not be discussed in plain language. The removal of the worst constraints after the death of Stalin and Khrushchev’s de-Stalinization campaign of 1956 created more space for scholarly debate, but left the Marxist-Leninist ideology more or less intact. Soviet scholars would still argue about the feudal character of Kievan Russia, a question of immediate relevance to the land tenure issue, because in the Soviet Marxist view of feudalism ownership of agricultural land by a class of feudal lords, making use of the labour force of a dependent 14

B.D. Grekov, Kievskaia Rus’, Moskva, 1953, 58-59; in the English translation (Kiev Rus, Moscow, 1959), 127-128.

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peasant population, was the very essence of the feudal system. The entire generation of Soviet medievalists working during the last three decades of the Soviet system was still imbued with such Marxist ideas, perhaps without always being aware of it. Even after the demise of the Soviet Union and the widespread rejection of Marxist-Leninist ideology among educated Russians, the old ideas survive to a considerable extent through their dominance in the traditional Soviet terminology.15 Only among the younger generation of historians, more exposed to international literature and less to Soviet-style indoctrination, are the habits of the past wearing off.16 The impact of Marxist-Leninist ideology on the study of medieval Russia can be summarized as occurring at three different levels: as an immediate source of knowledge, as a conceptual framework, and as mere terminology.

3. The Nature of Kievan Russia: Trade or Agriculture? The relative importance of trade and agriculture in Kievan Russia is an issue which has been debated for more than a century. At one end of the spectrum, there is the view that agriculture had been the predominant mode of production and economic determinant from very early, i.e. prehistoric times. Some of the proponents of this view, in particular some of the leading Soviet authors, held that large scale landownership and ‘feudalization’ set in as early as the 7th century. The situation of Kievan Russia was then considered to be generally similar to that of Carolingian Europe.17 Once the position had been taken, under Grekov’s leadership, that Kievan Russia represented a feudal society (in the Marxist sense), a number of other conclusions became more or less inevitable. Slavery did not exist or was at least very unimportant, because a feudal economy rested on the labour of serfs, not of slaves. Foreign trade could be neglected, because feudal economies were generally self-sufficient. By the same token, money did not play a major role in these economies. These 15

16

This is very noticeable, for instance, in the most recent edition of the leading university textbook on legal history by I.A. Isaev, Istoriia gosudarstva i prava Rossii, Moskva (3rd rev. ed.), 2006.

17

A notable example in the field concerned is the study by S.L. Nikol’skii, “O druzhinnom prave v epokhu stanovleniia gosudarstvennosti”, A.A. Gorskii (ed.), Srednevekovaia Rus’, Vyp.4, Moskva, 2004, 5-48.

Grekov’s work on Kievan Russia, quoted above, is an example. S.V. Iushkov, the leading Soviet legal historian from the era, took essentially the same position; cf. S.V. Iushkov, Ocherki po istorii feodalizma v Rossii, Moskva/Leningrad, 1939, 44. In the 19th century, there was N. Khlebnikov, Obshchestvo i gosudarstvo v domongol’skii period russkoi istorii, S.Peterburg, 1871.


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considerations produced an already detailed picture of Kievan society, although not necessarily a correct one. The opposite view was that the Kievan elite, the princes and boyars, derived their wealth primarily from trade, augmented by hunting and the acquisition of booty, and that large scale landownership did not assume significant importance before the 12th century. Parallels with Carolingian Europe would, therefore, be inappropriate and misleading. An early protagonist of this view was Kliuchevskii.18 The few Western authors who expressed themselves occupied a more intermediate position; Blum, for instance, agreed with earlier writers that large scale landownership did not appear in Kiev before the 11th century, but stressed that agriculture on communal land still would have been the basic occupation of the bulk of the population.19 A similar view had been put forward by M. Szeftel.20 Vernadsky pointed out that in Kievan times hunting (including beekeeping), agriculture and cattle-breeding, crafts and trades, as well as internal and foreign trade, were all major economic factors. His ultimate conclusion was that Kievan Russia was more like Byzantium than like medieval Europe; slavery was still a factor of some importance; serfdom existed, but was in no way universal or even dominant as a source of labour; large scale landownership was present, but the landowners did not constitute a closed class as in Europe, and small scale landownership was still a significant phenomenon; the position of the elite rested more on their financial strength, mainly based on their trading activities, than on their ownership of land.21 Among Soviet authors, I.Ia. Froianov’s was the most audible heterodox voice. His actual appraisal of Kievan Russia was closer to Western views, such as those of Vernadsky; but, at least in his earlier writings, it was clothed in traditional Soviet terminology. His starting-point was the rejection of the ‘classic’ view proposed by Grekov, that Kievan Russia was a feudal society. Although Froianov did not deny the emergence of 18

Most explicitly in his Boiarskaia Duma Drevnei Rusi, S.Peterburg (3rd ed.), 1902, 13; in a more implicit form in his Kurs, Vol.1, lecture VII.

19

20

J. Blum, “The Beginnings of Large-Scale Private Landownership in Russia”, Speculum, 1953, 776-790, and Lord and Peasant in Russia From the 9th to the 19th Century, Princeton, 1961, 21.

21

M. Szeftel, “Aspects of Feudalism in Russian History”, R. Coulborn (ed.), Feudalism in History, Princeton, 1956, 167-182.

I have used the modern Russian edition: G.V. Vernadskii, Istoriia Rossii. Kievskaia Rus’, Tver’/Moskva, 2004, Chapter V, esp. 179-189 (original English publication: G. Vernadsky, Kievan Russia, New Haven, 1948). This chapter had been published separately as “On Feudalism in Kievan Russia”, The American Slavic & East European Review, Vol.7 (1948), 3-14.

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certain feudal elements, he held that the ‘clan-tribal existence’ was still the dominant social form. Communes and individual producers were the main owners and agents in agriculture, crafts and trade. These ideas have been elaborated in very extensive writings on various aspects of Kievan Russia.22 In the post-Soviet era, Froianov’s views have found many followers in Russia, but they have in no way become the dominant trend. What rather has happened is that, freed from the constraints of the old ideologies, Russian medievalists have dispersed and present a much greater variety of views on developments in Kievan Russia; as noted above, the old terminology still survives in most of the more recent works.23 Before continuing our examination of the question posed at the head of this section (agriculture of trade?), it might be helpful to look at an intermediate question first, concerning the emergence of feudalism.

4. Interlude: Feudalism First of all, there is the question of definition. It is not a decisive issue, but still of considerable importance. Vernadsky has remarked, regarding the Soviet definition of feudalism, that a cat may properly be called a small tiger, but that we may cause a lot of trouble by shouting “tiger” when we see a cat crossing the road.24 If one follows Grekov in accepting that “the essence of feudalism was revealed only in the works of the founders of Marxism-Leninism”, and that “a classical definition of the feudal system was given by Stalin”, then feudalism is the system in which “the basis of productive relations is the feudal lord’s ownership of the means of produc22

23

24

A short survey of recent literature (until 1996) in the work of M.B. Sverdlov, quoted above, 315-319.

G. Vernadsky, in the article quoted above, at 5-6.

I.Ia. Froianov has authored three volumes entitled “Kievan Rus’” and in each of them the debate with the ‘official’ Soviet theory is taken up. Kievskaia Rus’, Ocherki sotsial’no-ekonomicheskoi istorii, Leningrad, 1974; this work was a partial publication of the author’s doctoral thesis. A full publication followed in 1999 under the title Kievskaia Rus’, Glavnye cherty sotsial’no-ekonomicheskogo stroia, S.Peterburg, 1999. See, esp., the sections on “Concerning the forms of communal land tenure in Kievan Russia” and “Princely land tenure and management”; Kievskaia Rus’, Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980, esp. the section on “The question of supreme landownership of the prince in Kievan Russia” and the chapter “Concerning the question of the seigneurial regime in Ancient Russia”; Kievskaia Rus’, Ocherki otechestvennoi istoriografii, Leningrad, 1990, esp. the essays on “The economic occupations of the population of Ancient Russia in Soviet historiography” and “The genesis of feudalism in Russia in Soviet historiography”, These three works have been republished in a single volume Nachala russkoi istorii (Iu.G. Alekseev, ed.), Moskva, 2001.


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tion and his limited ownership of the productive worker, the serf, whom he cannot any longer kill, but whom he can sell or buy” (Stalin’s words).25 If, on the other hand, as is customary in European history, feudalism is regarded as the socio-political system based on the combination of fiefholding and vassalage, as it emerged in post-Carolingian Europe through the ritual of homage and fealty,26 it would be difficult to consider Kievan Russia as a feudal entity. The Soviet/Russian definition of feudalism, whatever its merits and deficiencies, cannot very well be avoided, because it continues to be used in Russian historiography. As pointed out in the foregoing section, it can have a serious distorting effect when applied to Kievan Russia by importing characteristics, the presence of which is by no means proven. Vernadsky has suggested a realistic method for dealing with the problem by proposing a six-point checklist to determine the importance of the (feudal) manor in Kievan times: (1) the degree of expansion of large landed estates in Kievan Russia, (2) their types, (3) the status of land from the juridical point of view, (4) the degree of manorial authority over the tenant farmer, (5) the social standing of the landowners, (6) the general pattern of national economy in the Kievan period.27 The answers to these questions, according to Vernadsky, determine the degree of economic feudalism; the other two elements of feudalism in his view are political feudalism (“mediatication [sic, FF] of supreme political authority, existence of a scale of greater and lesser rulers (suzerain, vassals, subvassals) bound by personal contract, reciprocity of such a contract”) and the feudal nexus (“an indissoluble fusion of personal territorial rights, the control of land by the vassals being stipulated by the service rendered to their seignior”).28 With regard to economic feudalism, Vernadsky’s conclusion was that the Kievan manor was on all six counts significantly different from its West-European counterpart. First, large estates did not predominate over peasant holdings to the same extent as in Western Europe. Most scholars would agree here with Vernadsky, although the argument does not carry 25

Grekov, Kievskaia Rus’, 115 (Kiev Rus’, 149).

26

27

Cf., for instance, M. Bloch, La société féodale, Paris, 1939, I, Part 2, Book 2, Chapters 1 and 2; C. Stephenson, Mediaeval Feudalism, Ithaca, 1942, Chapter 2; F.L. Ganshof, Feudalism, New York (3rd ed.), 1952; in a footnote (on p.xv) Ganshof observed: “The way in which the word is commonly used by historians in Soviet Russia and in other countries behind the Iron Curtain seems to me to be absolutely irrelevant.” Sverdlov, op.cit., 317-321, notes that among modern Russian historians views which parallel Western conceptions have been defended and he regards this as a promising development.

“On Feudalism in Russia”, 6; Kievskaia Rus’, 183.

Ibidem, 4; resp. 181.

28

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much weight as the difference could in some cases be quite small. Secondly, Vernadsky argued that Kievan estates were more of a Byzantine type than of a Western European. This is actually a petitio principii, for which hardly any argument is adduced. The opposite could be stated with equal justification. Thirdly, land in Kievan Russia was not treated differently, as compared to other private property; it could be disposed of (bequeathed, sold, bought, donated) without restriction. The available evidence, however, points in the opposite direction. Fourthly, the authority of the Russian lord of the manor over his tenant farmers was more limited than that of his European counterpart; agricultural production on the manor depended rather on slave labour than on the labour of serfs. Slavery admittedly still existed in Kievan Russia, along with serfdom; it is difficult to determine their relative weight. There is no doubt, however, that slavery was on the way out and that already in the time of the RP the two categories juxtaposed by Vernadsky, the slaves (kholopy) and the serfs (smerdy), were merging. Fifth, the social position of the Russian boyar was significantly different from that of the European baron; Vernadsky is, generally speaking, right on this point. Sixth, in early medieval Europe a close, natural economy prevailed, while Kievan Russia was primarily a money economy. Few would contest that the role of trade and money constituted a real difference with Western Europe, but the decisive question is rather where the main wealth of the Kievan princes and aristocracy was located, in treasure or in land. Most Soviet and Russian historians have put the emphasis on land. All in all, the case for viewing Kievan Russia as more like Byzantium than like Western Europe is not as strong as it is made out by Vernadsky. On the other hand, Soviet historians have neglected important differences in the non-economic sphere. In Western Europe, feudalism gave birth to a political system consisting of a hierarchy of reciprocal personal relations, a system which, ideally, provided a balance of powers and of rights and duties between the various social classes. For a variety of reasons, such a system never took root in Russia. For an explanation, one might point to such factors as the importance of trade; the occupation of all princely seats by the members of a single dynasty, the descendants of Rurik; the acceptance of Byzantine instead of Roman Christianity, with the ensuing particular church-state relationship; the continuing incursions of Asiatic nomads, culminating in the Mongol conquest in the 13th century; and others. Such factors may explain how princely power remained unchallenged and unchecked from below. The Russian boyar never became a European knight. The essential contractual aspect of the feudal relationship did not develop, on account of the dominant position of the prince. Only exceptionally, in Novgorod and Pskov, did a network of reciprocal rights and


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duties arise, but the development of urban independence withered in the end when the power of the rulers of Muscovy had become irresistible. This difference between East and West has had a decisive impact in the sphere of political attitudes and spiritual values. The contractual balance between lord and vassal, so characteristic of European feudalism, has been one of the main sources for the concept of the dignity and the rights of the individual vis-à-vis the state (see, also, the chapter on human rights). In the words of Marc Bloch, the last two sentences of his classic work on feudalism: “Dans cet accent, mis sur l’idée d’une convention, capable de lier les pouvoirs, réside l’originalité de notre féodalité à nous. Par là, si dur aux petits qu’ait été ce régime, il a véritablement légué à nos civilisations quelque chose dont nous souhaitons vivre encore.”29

Iushkov, who refers to most of the points of difference identified above in his comparison between European and Russian feudalism, is curiously silent on the aspect of spiritual values.30

5. The Nature of Kievan Russia: Continued The main source of our knowledge of Kievan Russia is still the Primary Chronicle. This may be a reassuring thought when one is faced with a bewildering variety of opinions. Authors will attempt to fill the interstices in the narrative of the Chronicle with bits of information from other sources, and, in the case of the ‘classics’ of Soviet history, with ideological postulates derived from Marxism-Leninism. This then has resulted in a number of quite divergent views on Kievan Russia. Some of these additional sources could themselves be termed ‘Russian’: archaeological evidence, other contemporary written sources (although they are not very numerous), later Russian sources which offer information that could be extrapolated backwards in time, etc. Apart from all these, there is the comparative approach, in which Kievan Russia is placed alongside other cultures and societies about which we are better informed. This of course is where the Byzantium/Carolingian Europe dilemma presents itself. Although Soviet and Russian authors would naturally be inclined to delve first of all into domestic materials, many of them have taken account of the comparative aspect. Most of them would regard the West European (Carolingian) parallels as the most promising, but quite 29

30

Bloch, as quoted above, last page of text. In a similar vein, but with a shift in emphasis, Ganshof ’s last sentence is: “It is to the sacredness formerly attached to the ‘foi’ which bound together lord and vassal, that the high importance still attached in Western Europe to the virtue of fidelity directly goes back.”

In his Ocherki po istorii feodalizma v Kievskoi Rusi, Moskva/Leningrad, 1939, 250-251.

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a few favour the Byzantine connection. In the West, as explained above, the latter approach appears to be the most popular. One of the arguments for favouring the Byzantine approach could be the undeniable cultural influence of Byzantium on Kievan Russia. Few would deny that this influence was in both qualitative and quantitative terms far greater than the effects produced by contacts between Kievan Russia and Central and Western Europe. In the field of law this influence, as we have argued in the chapter on “Roman Law in Medieval Russia”, was real but not comprehensive, and has been exaggerated by certain authors. When one culture is influenced by another, it will usually become more like the latter. But influence says nothing about the degree of initial similarity. The fact that Byzantium influenced Kievan Russia would presumably lead to the taking over of certain Byzantine institutions, attitudes, etc. in the course of the history of Kievan Russia. But whether Kievan Russia, in its earlier phases, was more like Byzantium or like Western Europe is a question that has nothing to do with influence. Once this awareness has penetrated, the West European parallel moves to the foreground. During the first millennium A.D., a number of ‘barbarian’ peoples surrounded the declining Roman Empire at its northern and north-eastern borders: Celtic, Germanic, and Slavic tribes among them. After they had been converted to Christianity and had acquired written cultures, the earliest literatures of these peoples, reflecting their recent pagan past, offer a surprisingly homogeneous picture. Old-Irish literature, Germanic epics like Beowulf and the Nibelungenlied (at least its most ancient layers), and the Old-Russian “Lay of the Warfare Waged by Igor” (Slovo o polku Igoreve) all present an ‘heroic’ society of kings surrounded by their trusted comrades-in-arms, where valour in war, loyalty to one’s lord and friends, honour in their company, and the acquisition of wealth which is to be shared generously among them, are the central values. This heroic world is of course also well known in the Mediterranean region, but in the much more distant Homeric past.

6. The Druzhina For the Germanic, including the Scandinavian, peoples this culture is abundantly documented. In the oldest available evidence from Russia, the echoes of the heroic era are still very audible. The earliest Kievan princes from the Rurikid dynasty are often shown as acting together with their retinue, their druzhina. The origin of the oldest part of the RP is in fact


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closely related to problems concerning the druzhina of Iaroslav the Wise (see the chapter on the RP). In Russia, since the 19th century, the druzhina issue has been connected with the so-called problem of the Normans which has continued to agitate scholars. Its origin is in the story of the Primary Chronicle about the invitation sent out to the Vikings (in 860-862) after the Russians had said to themselves: “Let us seek a prince who may rule over us and judge us according to the Law.” Rurik and two of his brothers answered the call: “Our land is great and rich, but there is no order in it. Come to rule and reign over us.” Some of the vast literature concerning these events has been coloured by political bias; the idea that Russia would submit to the political leadership of Germanic princes was considered almost treacherous in Stalinist times, and any kind of foreign, let alone ‘barbarian’ Viking influence on the culture of Kievan Russia was declared to be impossible. But, even then, some of the more sober observers noted that the cultural differences between a recently baptized Russia and early Christian or still pagan Western and Northern Europe would probably not be that great. Once Kievan Russia began to flourish, contacts with Western Europe diminished, although they did not quite disappear (Iaroslav’s daughters married the kings of Hungary, Norway, Denmark and France). Connections with Byzantium then became more intense, until the Mongol conquest after 1240 made these connections more burdensome, although not impossible. The overwhelming reality of these contacts, however, and this fact has inexplicably been overlooked by the supporters of the ‘Byzantine parallel’, was that Byzantine culture and political institutions existed in a completely different setting than their counterparts in Kievan Russia. Byzantium was the heir of more than thousand years of Roman history and it had very little in common with the ways of early Kievan Russia. In this respect, Soviet historians, notwithstanding their overly schematic Marxist approach of a tribal-clan society making the transition to a feudal one, were actually on the right track. In a recent study by S.L. Nikol’skii, this schematism is criticised, while at the same time the positive achievements of past scholarship are further developed. Nikol’skii notes that: “[…] for a long time in our national scholarship a formation scheme of the historical process was dominant in which the Old-Russian state was considered to be feudal from its very start. This postulate compelled students of ancient Russian law to search for—and find—the expression of the feudalization process of the Old-Russian society in the oldest written legal records.”31 31

S.L. Nikol’skii, “O druzhinnom prave v epokhu stanovleniia gosudarstvennosti na Rusi”, A.A. Gorskii (ed.), Srednevekovaia Rus’, Vyp.4, Moskva, 2004, 5-48, at 5.

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Nikol’skii then goes on to argue that the Scandinavian origins of the early Rurikid princes and their multinational druzhina was of decisive influence in the written fixation of the oldest part of the RP. We have discussed this question in the chapter on the RP, and at this point it will be sufficient to note that in this view the oldest known layer of Russian law is neither Byzantine, nor feudal. Whether it is justified to characterize the oldest part of the RP as druzhina law, as Nikol’skii does is a question which may be left aside for the time being; it is certainly correct to bring the druzhina as a central cultural and political factor back into the picture into which it had fitted so uncomfortably in the Soviet past. And Nikol’skii is not the only or the first modern Russian scholar who has directed the attention to the druzhina as a central institution in Kievan Russia. As early as 1989, A.A. Gorskii had already published a special study on this subject;32 and N.F Kotliar, in a study on the origins of Russian statehood in Kievan times, had characterized St. Vladimir’s empire as a druzhina state.33 Druzhina is usually translated as ‘retinue’ in English; the German Gefolgschaft is more specific. It is not the same as a court or a bodyguard or a private army, although these terms have occasionally been used as a translation. Although the druzhina of the first Kievan rulers appears to have been predominantly ethnically Scandinavian, there are good reasons to assume that its set-up was generally in agreement with what was customary among Slavic princes. The evidence from different European cultures of the heroic era is strikingly similar. The druzhina in its heyday was characterized by the basic equality of its members, combined with a definite interior hierarchy. At the top was the leader, king or prince, surrounded by senior and junior members who had entered into a voluntary relationship of subordination. They were to respect the king’s leadership, but could unilaterally decide to leave. The king must treat his followers with respect and, in particular, supply them generously with everything required by their status. These different aspects of the druzhina organization are well illustrated by the Primary Chronicle for the period of St. Vladimir and his son Iaroslav, and their pagan ancestors. The treaty of 912 with Byzantium was concluded on behalf of the Kievan grand prince Oleg “and all the serene and great princes and the great boyars under his sway” by fifteen envoys, all bearing apparently Viking names. The treaty of 945 was more detailed in its introductory provisions; it began as follows: 32

33

A.A. Gorskii, Drevnerusskaia druzhina, Moskva, 1989 (this work has not been available to me).

N.F. Kotliar, Drevnerusskaia gosudarstvennost’, S.Peterburg, 1998, esp. 63-69.


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“We are the envoys and merchants of the Russian nation: Ivar, the envoy of Igor, grand prince of Rus’, and the general envoys Vuefast for Sviatoslav, Igor’s son, Iskusevi [Isgaut] for the princess Olga [Igor’s wife], Sludy [Slothi] for Igor, Igor’s nephew, Ouleb [Olaf] for Vladislav, Kanitsar for Predslava, Shikhbern [Sigbjorn] for Sfandr [Svanhild], Ouleb’s [Olaf] wife, Pras’ten’ [Freystein] for Turduv [Thorth], Libiar [Leif] for Fastov [Arfast], Grim for Sfir’kov [Sverki], Prasten [Freystein] for Akun [Haakon], nephew of Igor, [and thirteen more of such pairs, plus one single individual Sverki], and the merchants [follows a list of 25 Scandinavian names], sent by Igor, grand prince of Rus’, and from each prince and all the people of the Russian land.”

It is hardly a coincidence that the number of envoys equals the number of merchants. Of course, the persons represented are of a higher status than their envoys (except the separately mentioned Sverki, who apparently turned up himself). Also, the list is headed by Igor’s wife and his son; other relatives follow and it is safe to assume that Predslava is one of them. The third woman mentioned, Svanhild, is included on behalf of her husband Olaf (probably deceased). Most of the names of those represented are Scandinavian, except a few who appear to be close and probably related to Igor himself. All this fits perfectly into the druzhina construction, where a number of aristocratic personalities (they are called ‘princes’), each having their own military and trading interests, combine under the leadership of a king-like figure. For the same year, the Primary Chronicle offers an entry of particular interest for understanding the druzhina system. Igor’s druzhina addressed its lord as follows: “The servants of Sveinald are adorned with weapons and fine raiment, but we are naked. Go forth with us, prince, after tribute, that both you and we may profit thereby.” Sveinald, as later entries in the Chronicle show, was a great magnate, who served as commander-in-chief after Igor’s death and during the minority of his son Sviatoslav. The treaty of 971 with Byzantium was concluded by “Sviatoslav, grand prince of Rus’, and by Sveinald”, without any indication of the latter’s status. He obviously had a druzhina of his own and was not an immediate relative of the prince. His absence among the signatories of the 945 treaty is conspicuous. All through the period covered by the Primary Chronicle, i.e. up to 1116, the druzhina remains present as the prince’s retinue, taking an active part in political and military decision-making and being actually around the prince most of the time. In a few cases (in 996, 1078 and 1093), the Chronicle refers to the prince being accompanied by a “small druzhina”; then a small detachment in the nature of a bodyguard is obviously meant. This would agree with the subsequent development of the druzhina; in the First Novgorod Chronicle, the druzhina is still in evidence; initially, in the same sense as in the Primary Chronicle, but later on more and more as an ordinary detachment of moderate size. The members of such a force

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were just regular soldiers and not any longer the personal companions and advisors of the prince. The Novgorod Chronicle relates, for instance, that Danislav Lazutinich went to Kiev in 1167 with a druzhina to prince Mstislav; Nezdila Pekhtinich went in the year 1200 as voevoda (military commander) with a small druzhina to a place in Livonia, where he killed 40 men and captured their wives and children. Initially, the druzhina/retinue/Gefolgschaft from the heroic age was a small band of companions of the leader, well documented by the epic literature of various European peoples. The druzhina from the early Kievan period still possessed most characteristics of its precursor; the first Rurikid princes are shown to function within and partly through their druzhiny. The essential equality of the druzhina members did not prevent a difference in status among individual members. There are many more or less indirect indications of this; for instance, the frequent occurrence of one or two leading persons who seemed to act as the prince’s closest advisors.34 In 1093, the Primary Chronicle speaks directly of the ‘senior’ or first druzhina of the Kievan grand prince Vsevolod. Prominent druzhina members are mentioned as receiving important appointments; St. Vladimir made his trusted mentor and maternal uncle Dobrynia governor of Novgorod in 980 and even the founder of the dynasty, Rurik himself, is reported (860-862) as assigning major towns (Polotsk, Rostov and Beloozero, and their surrounding provinces, as one may assume) to his followers (his muzhi, which usually refers to druzhina members). In older Russian and especially Soviet literature, the gifts or grants made to druzhina members, particularly where they concerned land, have been studied through the prism of a modern ownership concept. The Marxist perspective made such an approach inevitable. The question, then, became to establish at which moment in the socio-political development the grantee started to acquire ownership. As argued above, this approach has serious drawbacks. One generally agrees that initially the assignment of land was for the purposes of government administration and, therefore, personal and temporary. The appointee obviously would need to get a certain income from his appointment and various possibilities have been proposed.35 The personal character of the appointment worked two ways: it only concerned the person of the appointee and it depended on 34

35

Sveinald, in the times of Igor and Sviatoslav, has been mentioned above. At about the same time and somewhat later, there are Dobrynia, St.Vladimir’s maternal uncle, and the generals Blud and Variazhko (in 980). Several generations later, in the times of Iaroslav’s sons, we find Vyshata and his son Ian (1043, 1069). See not only the modern Russian works quoted in the footnotes above, but also older works, such as S.V. Iushkov, Ocherki po istorii feodalizma v Kievskoi Rusi, Moskva/ Leningrad, 1939, esp. 51-53 and 144-158.


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the person of the prince as grantor; if the prince was deposed, the grant became factually void. In time, the character of such grants changed; they became more permanent and in the end also inheritable. One of the chronologically youngest layers of the Expanded Pravda is devoted to inheritance law and article 91 provides that if a boyar or a druzhinnik dies, his estate does not return to the prince. If there are no sons, the daughters will inherit. How this process evolved remains a much-debated problem, because the sources are almost silent on this point.

7. Conclusion The way a society handles the land it has at its disposal tells us very much about that society itself. For a polity such as Kievan Russia, the question of land ownership is not very suitable as an approach, because a modern ‘digital’ ownership concept did not operate then; ownership in land occurred at several levels simultaneously. For similar reasons, the feudalism debate (was Kievan Russia feudal?) is fruitless. The feudalism concept which is still dominant in Russia has its roots in Marxism and in 19th century ideas about ownership. The trade-or-agriculture dilemma, in the study of Kievan Russia, is a more realistic issue. It is usually connected with another question: was Kievan Russia more like Byzantium (trade) or like Carolingian Europe (agriculture)? The admission that trade was of greater importance in Kievan Russia than in Carolingian Europe does not take away from the fact that in terms of general cultural level, societal and economic development, Kievan Russia was much more like Carolingian Europe than Byzantium. In this respect, the recent emphasis on the importance of the druzhina, the princely retinue, as a central factor in the politico-legal structure, is significant. The origin of the boyar class of landowners of the following centuries was primarily in the druzhina of Kievan Rus’.

Chapter 5 Popular Assemblies in Early Medieval Russia: The Veche in Legal History Among the ancestors of the Russian State Duma, pride of place belongs to the veche or popular assembly of Novgorod. Its first recorded meeting was in 1016. It was abolished by Ivan III in 1478 after Novgorod’s subjugation to Moscow. No body of popular representation in Russia can boast such a long period of operation.1 The activities of the Novgorod veche, its procedures, its jurisdiction, its composition, have been and still are a subject of lively debate in Russian historiography.2 The primary sources are to be found in the medieval Russian chronicles, first of all the Novgorod Chronicle. The prominent role of the Novgorod veche in medieval Russia has understandably overshadowed the activities of veches in other Russian cities. In respect of the latter, there is a relative paucity of sources. Also, the role of the veche in other Russian cities diminished sharply after the Tataro-Mongol3 invasions in the middle of the 13th century. Neverthe1

2

As explained below, the veche of Pskov functioned until 1510; but Pskov only became independent of Novgorod in 1347/1348, and little is known about the existence or operation of a veche in Pskov in the earlier period. A brief survey of the main aspects of the early Russian veche may also be found in M. Szeftel, “La participation des assemblées populaires dans le gouvernment central de la Russie depuis l’époque kiévienne jusqu’à la fin du XVIII siècle”, Receuils de la Société Jean Bodin, Vol.25, 339365, at 339-345. Recently a new study on the veche appeared, J. Granberg, Veche in the Chronicles of Medieval Rus: A Study of Functions and Terminology, Göteborg, 2004 (not available to me); an abbreviated translation (“Veche v drevnerusskikh pis’mennostnykh istochnikakh: Funktsii i terminologiia”) appeared in T.V. Gimon & E.A. Mel’nikova (eds.), Drevneishie gosudarstva Vostochnoi Evropy 2004 god. Politicheskie instituty Drevnei Rusi, Moskva, 2006. This work also offers a list of direct chronicle references to the term veche on pp.150-161.

3

V.O. Kliuchevskii’s Kurs russkoi istorii, Lektsiia XXIII, is still a good introduction to the institutions of medieval Novgorod. This work was first published in 1904 and has been republished several times in editions of Kliuchevskii’s collected works Sochineniia. I have used the 1956-1959 edition; the chapters on Novgorod are in Vol.2 (1957), 54-104. See, also, K. Onasch, Gross-Novgorod. Aufstieg unde Niedergang einer russischen Stadtrepublik, Wien, 1969. The most prominent Novgorod expert among present-day Russian historians is V.I. Ianin; see, for instance, Ianin and M.Kh. Aleshkovskii, “Proiskhozhdenie Novgoroda”, in Istoriia SSSR, 1971, No.2, 32-61; for a recent overview: Velikii Novgorod v istorii srednevekovoi Evropy [Ianin Festschrift], Moscow, 1999.

Although the empire founded by Chingis-Khan was Mongol in its origin, its massive absorption of Turkic elements soon resulted in an ethnic metamorphosis which

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less, the Novgorod veche can only be understood properly if it is regarded as a specific and perhaps atypical outcome of the developments of the preceding centuries. There are also other reasons, apart from the importance of the veche of Novgorod, for looking more closely at the early medieval Russian veche. It is, first of all, an essential component for constructing a comprehensive view of Kievan Russia. There are also interesting parallels with similar institutions in West European legal history. And, on a different plane, the veche has enjoyed increased interest in recent times when it is often seen as a precursor of present democratic institutions. Before considering the early Russian veche briefly from these various points of view, a survey of the main sources and the principal characteristics is required.

1. Sources The basic sources concerning the early Russian veche are the medieval Russian chronicles, especially the Primary or Nestor Chronicle; for the Novgorod veche the Novgorod Chronicle must be added. Although the Primary Chronicle remains the main source of information on the early period of Kievan Rus, its narrative stops at 1116, and the next generation of Russian medieval chronicles, such as the Suzdal’ Chronicle, have to be consulted.4 The earliest reference to a veche dates from 997; there are a handful of references from the 11th century; after 1100, they get more numerous. For the later period, especially after the Tataro-Mongol invasions around 1240, most references, although not all of them, concern veches in Novgorod and Pskov. Medieval Russian legislation provides little information on the activities of the veche, but still should not be altogether disregarded in this respect. A useful secondary source is N.M. Karamzin’s monumental Istoriia Gosudarstva Rossiiskago, whose extensive footnotes offer long quotations from the various chronicles on which the work is based.5 Among the prerevolutionary Russian legal historians, V.I Sergeevich devoted much attenmade contemporaries look upon the invaders as ‘Tatars’ (at the time, a collective name denoting the population of Asia). A subsequent association with Greek tartaros (underworld) was responsible for the common European misnomer ‘Tartars’.

4

5

The Laurentian text of the Suzdal’ Chronicle in PSRL, Vol.1 part 2, Leningrad, 1927.

N.M. Karamzin (1766-1836), Istoriia Gosudarstva Rossiiskago, 12 volumes, S.Peterburg, 1816-1829 (hereafter: Karamzin).

The Veche in Legal History

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tion to the veche; the second part of his work on Russian legal antiquities is entitled “Veche and Prince”.6 Most of the leading Soviet medievalists have written about the veche, but the discussion was mostly about aspects of the veche which would assign it a place within the officially established views on Kievan Russia: How ‘democratic’ was the veche in its composition? How marginal was it within the political system? Was it really an ancient institution?7

2. Five Centuries of Veche History The first time the Primary Chronicle mentions a veche is under the entry for the year 997. In a tale about the siege of Belgorod (a new town founded by St.Vladimir of Kiev in 9918) by the Pechenegs, the chronicler recounts how the population of the town, pressed by starvation, assembled to decide on the best course of action. The decision to surrender the town was then overturned by the town-elders, at the request of an old man, who suggested a ruse. Divested of its legendary aspects (the execution of an elaborate deception, reminiscent of other stories of Near Eastern origin, to lead the Pechenegs astray), the brief narrative already contains several of the elements of the functioning of the veche which return in later reports.9 The veche is, in principle, an assembly of the whole town population. It appears to have the power to decide certain important questions. Local elites (the town-elders) may act independently.10 6

7

V.I. Sergeevich, Drevnosti russkago prava, vols.1-3, S.Peterburg, 1909, 1908, 1903; the first four chapters of Vol.2 are devoted to the veche (hereafter: Sergeevich, Drevnosti II). Of considerable interest is also the work of M.A. D’iakonov, Ocherki obshchestvennago i gosudarstvennago stroia Drevnei Rusi, S.Peterburg (2nd ed.), 1908, 115-136.

8

The discussion is conveniently summarized by I.Ia. Froianov in Kievskaia Rus’; Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980 (hereafter: Froianov, 1980), 150-184. Of the Western literature on the veche, along with the study by Granberg (mentioned above), the work by K. Zernack should be mentioned (Die burgstädtischen Volksversammlungen bei den Ost- und Westslaven. Studien zur verfassungsgeschichtlichen Bedeutung des Veče, Wiesbaden, 1967). I have not been able to consult this work.

9

PSRL Vol.1, part 2, col.122. This date does not tally with another entry (under the year 980) in the Primary Chronicle, where it is stated that Vladimir, “insatiable in vice”, maintained 300 concubines in Belgorod; one would expect this entry to refer to Vladimir’s days as a pagan, i.e. before 988. According to Cross and SherbowitzWetzor in their translation of the Primary Chronicle, footnote 83, the 991 entry should be interpreted as meaning that Vladimir fortified an already existing town.

10

Further references in Froianov, 1980, 160-162.

P.B. Lukin (“K voprosu o tak nazyvaemom sovete v domongol’skoi Rusi”, Drevneishie gosudarstva Vostochnoi Evropy, 2003, Moskva 2005, 132-142) has recently drawn the attention to the confusion surrounding the unstable terminology in the sources: where terms other than veche are used, such as “council” (sovet), many authors have assumed the presence of another, smaller, body; sometimes, however, an actual general assembly of the population may be meant.

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From 997 to 1510, the chronicles report frequently on the holding of veches in various Russian towns. The last veche of an independent population was held in Pskov, in 1510, when the town finally had to submit to the Moscow grand prince. The five centuries of veche history may neatly be divided into two equally long periods: before and after the Tataro-Mongol invasions in the middle of the 13th century. During the second period, as mentioned above, the veche was primarily a matter of the city-states of Novgorod and Pskov. The story of the veche during the first period is told completely adequately by Sergeevich in the first chapter of his second volume on the antiquities of Russian law. It will be sufficient to summarize his findings here and add an occasional comment.

3. The Veche in Early Kievan Russia The veche is frequently mentioned by name in the chronicles, but more often its activity is implied in other terminology, such as “the people of such-and-such a town assembled and decided that […]”. If all these reports are collected, a very significant body of evidence concerning the veche emerges. Novgorod and Kiev appear of course most often in the chronicles, but also most other important towns of the era: Chernigov, Vladimir (on the Kliazma), Polotsk, Smolensk, Suzdal’, Iaroslavl’, Vladimir-Volynsk, Rostov, Riazan’; there are occasional reports about veches in subordinate provincial towns: Moscow, Zvenigorod, Briansk, Putivl’, Pronsk, and others. A famous entry in the Suzdal’ Chronicle states (under the year 1176) that the people of Novgorod, Smolensk, Kiev, Polotsk, “and all lands” [i vsia vlasti] would assemble for consultation at the veche “from time immemorial” (iznachala).11 11

PSRL ,Vol.1, part 2, col.377, cf. Sergeevich, Drevnosti II, 1-2; also Froianov, 1980, 155-160. On the events in 1176, see, also, Iu.A. Limonov, Vladimiro-Suzdal’skaia Rus’, Leningrad, 1987, 117-149. A few Russian authors, as well as J. Granberg (quoted above in note 1), argue that only those places in the chronicles which speak explicitly about the veche as such should be taken into account in investigating the nature of the veche. On this basis, Granberg held that the veche was not a political institution, but merely a term denoting an assembly of the urban population. Although my analysis of the veche is generally close to that of Granberg, I believe that her position on the point indicated introduces an unnecessary semantic complication. The juxtaposition of chronicle places which explicitly refer to veche meetings and other places which refer to urban assemblies acting in a similar manner is artificial, as has also been pointed out in Russian literature; there are even passages which first mention popular assemblies, referring to these later on as veche meetings. Cf. T.L. Vilkul, “Konstruirovanie narrativa v parallel’nykh letopisnykh soobshchenniiakh o veche”, in the same volume as Granberg’s study, 210-243, at 212.


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The majority of reports about veche meetings is connected with the dynastic crises which occurred with great regularity in Kievan Russia.12 Two examples may be recounted briefly. The unity of the Kievan empire, established by St.Vladimir, was more or less maintained by his son Iaroslav the Wise (†1054); the latter’s eldest son, Iziaslav, inherited the throne of Kiev, and two other sons, Sviatoslav and Vsevolod, became princes of Chernigov and Pereiaslavl’ respectively. A feud already existed between these brothers and their nephew Vseslav, the grandson of Iaroslav the Wise’s elder brother Iziaslav.13 Vseslav had been arrested treacherously by Iziaslav Iaroslavich of Kiev and incarcerated in Kiev. In the course of a campaign against the nomad Polovtsians, Iziaslav, who was already unpopular in Kiev, completely fell out with his own people, who called a veche and issued an ultimatum to their prince. Iziaslav fled in a hurry and the Kievans proclaimed Vseslav, liberated from his dungeon, grand prince of Kiev. After seven months and under threat from a counterattack by Iziaslav, Vseslav absconded, and the Kiev veche invited Iziaslav back as their prince.14 The next major crisis erupted in 1097 in the aftermath of the Liubech peace conference. The sons and grandsons of some of the participants in the previous crisis met to patch up their differences, and a solemn pact of unity was concluded. Soon hostilities broke out again, and this time it was in particular the veche of Vladimir which played an active role, along with the Kiev veche. The following excerpt of the complicated story has to suffice. David Ol’govich, prince of Vladimir, was being besieged by his cousin Vasil’ko Rostislavich, prince of Terebovl’. The latter demanded the extradition of three advisors of David, whom he (Vasil’ko) considered responsible for David ordering him (Vasil’ko) to be blinded. The people of Vladimir told their prince David at a veche meeting that they would fight for him, but not for his advisors, who were then handed over to Vasil’ko. Later on, in the same year, David was driven from the town of Vladimir 12

13

The background of these crises was the peculiar nature of the Kievan confederation (if one could call it that), based on the collective right to rule of the Rurikid house. This matter is discussed at greater length in the chapters on “The Elder Brother in Russia” and “The Treaties of Medieval Russia”.

14

This Iziaslav, prince of Polotsk, died before his father St.Vladimir. The original system of Rurikid succession did not allow for substitution in case a son predeceased his father; his line remained forever in a disadvantaged position. Traces of a similar system may be observed in pre-medieval Germanic dynastic succession, among the Merovingians and Carolingians.

Primary Chronicle, 1068-1069; PSRL Vol.1, part 1, col.171-173; Karamzin, Vol.II, 4344; I.Ia. Froianov, Drevniaia Rus’, S.Peterburg, 1995, 173-195 (a reworking of “Veche v Kieve 1068-1069 gg.”, V.A. Ezhov (ed.), Iz istorii feodal’noi Rossii [Mavrodin Festschrift], Leningrad, 1978, 38-46).

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by his cousins, and Mstislav, son of Sviatopolk, was installed as prince of Vladimir. David returned and laid siege to the town. Mstislav was killed and the Vladimir veche sent an ultimatum to his father Sviatopolk to the effect that they would surrender the town to David unless Sviatopolk would come and relieve them promptly.15 Similar developments were recurrent all through the 12th century. To grasp the general picture one has to leave aside more modern concepts of the state, of sovereignty, federalism, etc. 4. The Kievan ‘Empire’ The polity of Kievan Rus’ was ethnically defined, in principle. The Poles (Liakhi), the Hungarians (Ougry), the Finnish tribes in the North (the Chud’ and others), the Turkic nomads such as the Pechenegs and the Polovtsians, were outsiders. The Russians were divided into groups whose designations were derived from the major town in their territory: the Kievans, the Novgorodians, the people from Smolensk (Smoliane), Polotsk (Polochane), etc. These terms may refer, depending on the context, to the inhabitants of the town or of the entire territory of which the town was the focal point. The larger town areas had their roots in earlier tribal divisions among the Eastern Slavs (Dregovichi, Poliane, Radimichi, etc.), as such divisions are documented for the protohistorical period in the Primary Chronicle. It was only St.Vladimir and his immediate forbears who eliminated other independent tribal princes. Henceforth, until the ruling line of the Rurikid house died out soon after the death of Ivan the Terrible (1584), the title of prince (kniaz’) and the right to rule could belong only to a member of this house.

5.Veche and Prince The available evidence suggests that at the dawn of Russian history general popular assemblies played an important part in the political decisionmaking process. Along with the text from the annals, quoted above, that people had been assembling in veches of old in the Russian territories, there are for instance clear references in the 10th century treaties with Byzantium. In the treaty of 945, the emissaries stated that they had been sent by the grand prince Igor, his princes and boyars and the whole people of Rus’ (which in this instance meant Kiev).16 The treaty of 971 was con15 16

PSRL Vol.1, part 1, cols.256-273; Froianov, 1980, 164-167.

The text of the 945 (944) treaty is in the Primary Chronicle under the year 945; PSRL Vol.1, part 1, cols.46-53; also in PPR I, Moskva, 1952, 30-53 (A.A. Zimin, ed.); Russian text and English translation in Kaiser, Laws, 8-12; see, also, I. Sorlin, “Les traités de Byzance avec la Russie au Xe siècle”, Cahiers du monde russe et soviétique, Vol. II (1961), 313-360 and 447-475; and A.N. Sakharov, Diplomatiia Drevnei Rusi–pervaia polovina X v., Moskva, 1980.


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cluded by the Kievan grand prince Sviatopolk who stated that his boyars and “all Russia” agreed with him.17 The two examples from the Primary Chronicle, related above, to which numerous others could be added, demonstrate that the veche could act independently; it was obviously not only much more than an advisory body to the prince, but also more than a co-governing body, whose consent was required. The veche in many Russian towns could invite and dismiss its own prince. These powers might perhaps go back to arrangements in prehistoric times, but at least for the Kievan period they can be explained adequately in light of the dynastic peculiarities of Rurikid rule (see, also, the chapter on “The Elder Brother in Russia”). The dynasty founded by St.Vladimir stood out by its prolificity. Within a few generations, there were scores of princes who had to be provided with a livelihood, i.e. a place to rule. By virtue of the seniority or starshinstvo principle, the death of a more senior prince would result in a reshuffling of the princely seats. As long as the size of the ruling house remained modest, the most important princes would each occupy one of the major town-territories, corresponding roughly to the old tribal principalities: Novgorod, Polotsk, Rostov, Vladimir and others, with their father or eldest brother residing in Kiev. The continuous coming and going of princes implied in this system allowed the towns concerned to strengthen their position vis-à-vis their prince. The veche could probably claim an ancient right to approve or disapprove of its prince, perhaps also to elect and dismiss him; but, in the course of the Kievan period at any rate, the strategic weakening of the prince’s position led to the institutionalization of this right by means of a riad, a contract between the veche and the prince.18 Such a contract was invariably concluded at the prince’s accession, but a new contract could be concluded when circumstances had changed. There is evidence that a riad was even concluded with a prince who had imposed himself by force, usually by ejecting his predecessor. This contract was formally confirmed by oath by both sides kissing the Cross (krestnoe tselovanie). The contractual formula, once the riad started to be written down, was actually in the form of a request, and a declaration of readiness, to kiss the Cross. This is evidenced by the later contracts (or treaties) between Novgorod and a series of princes of Tver’, of which the first one extant dates from 1264.19 17

18 19

PSRL Vol.1, part 1, col.73. More extensively on the riad, Sergeevich, Drevnosti II, 80-92. S.N. Valk (ed.), Gramoty Velikogo Novgoroda i Pskova, Moskva/Leningrad, 1949 (hereafter GVNP), 9-10; see, also, the chapter on “The Treaties of Medieval Russia”.

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As no actual texts of riady from the earlier Kievan period have survived, speculation on their contents must mainly be based on inferences from the generally laconic statements in the chronicles. It is clear that the basic duties of the prince embraced military and civil leadership in furthering the interests of his territory and its populace. The chronicles often make the point that a town (and it territory) without a prince was to be pitied and was as a defenceless orphan. In those chronically troubled times the prince, who had his own armed retinue, the druzhina, at this disposal, was usually the most reliable rallying-point for military organization. The political direction, if one could call it that, of military operations often remained with the veche, as indicated by a number of incidents where the prince was ordered or forbidden to engage in certain campaigns. In case of serious hostilities, an army would have to be raised from the population, and this may also contribute to the explanation of the veche’s interest in the prince’s military intentions and capabilities, and of its influence on the policies to be adopted. In a wider sense, the veche would usually also claim a deciding vote in ‘foreign affairs’, that is to say in defining relationships with other Russian principalities, in questions of war and peace. For his efforts the prince received certain revenues, to be raised from various taxes and court-fees. The latter, in particular, were connected with the increasing role of organized government which slowly began to assume legislative and judicial functions.

6. Composition of the Veche As an institution whose roots went back into prehistory, the veche did not enjoy a clear-cut institutional framework. Two aspects may be distinguished, its territorial and its social composition. Initially, as mentioned before, while the dynasty was still small, sons and younger brothers of the Kievan grand prince would take up residence in the other major towns (among which Novgorod ranked first); with the town came a large territory. These towns together with the entire province around them were the origin of the Russian principalities of later centuries. With the proliferation of the Rurikids, individual branches of the family tended to hold on to the territories of their respective ancestors, which resulted in sub-dynasties in places like Vladimir, Chernigov, Tver’, Smolensk, etc.20 Within those sub-dynasties, junior princes would usually be granted so20

This tendency was already noticeable in the results of the Liubech conference of 1097 (mentioned before), where the cousins specifically agreed to settle each for the domains of their respective fathers (derzhit’ otchinu svoiu), PSRL Vol.1, part 1, col.257.


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called apanage principalities (udely or udel’nye kniazhestva). Moscow, for instance, was originally a minor principality within the old principality of Vladimir; Pskov was subordinate to Novgorod. In some cases, especially with regard to Kiev and Novgorod, certain relatively important towns had the rank of a suburb (prigorod). Kievan towns like Chernigov, Pereiaslavl’, or Belgorod, often had their own prince. So did Pskov. Still, these subordinate towns would usually send their own representatives to the veche of Kiev, or Novgorod. Veches of major towns, and numerous chronicle reports refer to such events, would therefore encompass, as a rule, participants from other towns subordinate to the regional capital. Equally, members of the rural population of the province might be present at the veche in the capital town. In other cases, attendance at the veche could be much more restricted. There are several stories of veches assembling during the siege of a town, and then obviously only the townspeople could attend. A veche might also be called in the field during a military campaign. Minor towns could have their own veche meeting. The inescapable conclusion from the abundant evidence in the chronicles is that the veche was actually an assembly of the people at hand. Of all the people? This concerns the second aspect of the composition of the veche, the social side. Taking account of the mental and cultural setting of the medieval veche, one may easily understand that women could not take part and that fathers would speak for their sons. More intriguing is the effect of social stratification. A number of reports provide more detail by mentioning the various groups of participants: the higher clergy (the metropolitan in Kiev and the bishop in other major towns), the boyars, the leading citizens (luchshie liudi, narochitye liudi), merchants, common people (chernye liudi, the chern’), but the enumeration often ends with a formula like “and all the people of […]”. Commentators generally agree that this formula should be understood as referring to all the free people and would therefore exclude slaves, whose existence in early Kievan Russia is not in doubt. That the entire free population was in principle entitled to participate in the veche is further confirmed by several reports about the participants being armed. Inevitably, the annalists wrote mainly about dramatic events and crises, and the most common disturbances were war and civil strife. It is quite conceivable that important peaceful projects, such as the building of a cathedral or a change in the tax system, were discussed in the veche, and whether people would come to such meetings fully armed is unknown. On the other hand, the democratic character of the veche should not be understood in the modern sense. Whatever evidence is available

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from the chronicles suggests that a more stratified view of society was all-pervasive: society was looked upon as a hierarchical structure where every person or group had its proper place: princes and bishops at the top, then the greater nobles (boyars), other leading citizens, ordinary people, dependent persons. This is already the picture presented by the ancient texts of the treaties with Byzantium, and it remains more or less unchanged until in the end the exceptionally exalted position of the Moscow grand prince overshadowed all other social distinctions. Veche debates were undoubtedly dominated by the socially prominent, but occasionally socially motivated anger would flare up and the chern’ (the ‘black’ people) would rise and chastize the rich and powerful, burn their houses and rob their wealth, earning themselves the stern disapproval of the annalists. No simple answer can be given to the question of the presence and participation of the prince. In the view of those times, there should in principle be a prince in every territory. However, the princely throne could be vacant, on account of the last prince having died or having been ejected. But even in the normal case when there was a ruling prince, the evidence shows that it was very well possible to hold veche meetings without him. Among later authors, and possibly also in the minds of some annalists, there exists a concept of an unlawful veche, when a veche is condemned because of its obviously unsatisfactory composition (when it was little more than a conspiracy) or when it grossly violated the deal (riad) made with its prince by the purpose of its convocation and the decisions taken. In such a case, the meeting could be regarded as a form of rebellion or treason (kramola). There are, on the other hand, far more instances of veche meetings without the prince and leading to the dismissal of the prince, which are obviously regarded as normal and proper.21

7. Veche Procedure Another aspect of the low degree of institutionalization of the veche concerns its convocation and procedure. There was apparently no defined right to call a veche; occasionally one sees the prince or the bishop or another important person taking the initiative, but in most cases the people just assembled. Ringing the church bells was the accepted way of calling the people together, at least in later times and in towns. The chronicles report 21

A prominent proponent of the possibility of the ‘unlawful veche’ was M.F. VladimirskiiBudanov, Obzor istorii russkogo prava, Rostov-na-Donu (first published 1886), 1995, 7482, 288-289; Karamzin, Vol.IV, 148 and note 320, also accepts the possibility, without any argument. Sergeevich, Drevnosti II, 98-101, lists a number of arguments against the construction. See, also, Froianov, 1980, 150-158, whose views are generally close to those of Sergeevich.


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the existence of a special veche bell, not only in Novgorod and Pskov, but also in Vladimir.22 Neither was there a regular procedure to be followed. High clerics occasionally exercised a moderating influence and might thus have acted as a kind of chairmen, but on the whole the procedure seems to have been chaotic. This often led to violence among the participants and, in such cases, the side that came out on top would carry the day in the veche. At times, feelings would run so high that the veche turned into a lynching mob. There are several reports of veche meetings in which the prince was deposed and the crowd then went on to pillage and plunder the prince’s palace and the houses of his supporters. Sergeevich’s explanation is worth restating.23 The rightness of a decision, he argues, had nothing to do, in the eyes of the medieval Russians, with the number of its supporters. Only unanimity could justify it. A minority, convinced of the correctness of its position, would not easily give in. Therefore, force would often be the only way out; the weaker side could be beaten into submission, or chased away, and unanimity would ensue. The operation of this mechanism was further reinforced by the absence, or at least weakness, of a separate executive. The participants of the veche themselves had to execute the most important decisions, and this would be almost impossible if there was no unanimity. To take recourse to fisticuffs was not such a bizarre procedure in a system which regularly made judicial use of duels to find out “the will of God”.

8. The Veche after 1240 In 1236 the armies of Baty (or Batu), one of the grandsons of Chingis-Khan, appeared and defeated the Turkic Bolgars of the Middle Volga region. In December 1237 Riazan’, the easternmost and therefore most exposed of the Russian principalities fell. In 1238, the capital cities of most other Russian principalities surrendered to the Mongols or were taken by storm. The fall of Kiev in December 1240 signified the end of the era of Kievan Rus’. Only the city-states of Novgorod and Pskov in the Northwest were spared Mongol invasion. The particular character of Tataro-Mongol overlordship had a profound effect on Russia; but, from a legal point of view, a break with the past was more difficult to observe, at least in the beginning. In modern terms, the Tatar khan could be designated as the sovereign.24 He was 22 23 24

Karamzin, Vol.IV, note 302.

Sergeevich, Drevnosti II, 62-72.

On the conceptualization of Mongol rule in Russia during the Middle Ages and subsequently, see Ch.J. Halperin, The Tatar Yoke, Columbus, Ohio, 1986; D. Ostrowski, Muscovy and the Mongols: Cross-Cultural Influences on the Steppe Frontier, 1304-1589, Cambridge, 1998.

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generally content with being recognized as such (contemporary Russian sources often referred to him as tsar’, the same title as enjoyed by the Byzantine and Holy Roman emperors) and receiving the taxes imposed by him. He left the actual job of governing the Russian principalities to the Russian princes, who had to travel to his headquarters, even as far as Karakorum, to be invested with their dignity (bringing suitable presents). By playing the princes against one another and enlisting their support in tax-collection, the khan was able to control a vast territory with great profit and little effort. In this scheme, there was little room for veche independence. The old practice, if one hesitates to call it a right, of appointing and dismissing princes was incompatible with the new order of things, in which the prince served by virtue of the khan’s indulgence. There are very few reports of veches from the second half of the 13th century and beyond; significantly, the most important one concerned the year 1262 when veches were held in Rostov, Vladimir, Suzdal’, and Iaroslavl’, in which it was decided to throw out the Tatar tax collectors.25 A similar uprising took place again in Rostov in 1280.26 In 1304, the local population of two towns, Nizhnii Novgorod and Kostroma, rebelled against the local aristocracy at veche meetings, but the impression is given that these meetings were little else but local disturbances.27 There is another sporadic report of civil unrest in Briansk in 1340, which expressed itself in a veche meeting.28 There is a final mention of a veche meeting in 1382, in Moscow, when khan Tokhtamish was engaged in a full-scale campaign against the Moscow grand prince Dmitrii Donskoi. The latter had fled with his family to Kostroma, and Tokhtamish had already captured Serpukhov, in the vicinity of Moscow. The people of Moscow, in the words of Karamzin, “at the sound of the bells assembled for a veche, remembering the ancient right of the Russian citizens to decide their own fate in important situations by a majority of votes”.29 25

26 27 28

PSRL Vol.1, part 2, col.476 (Suzdal’ Chronicle); cf. Karamzin, Vol.IV, 55 and note 105; also Sergeevich, Drevnosti II, 36. Karamzin points out that the “Besurmene” of the Chronicles were probably not Tatars, but Central Asians who had bought the tax-collection from the khan. It is doubtful whether Russians would dare to rise up against the immediate representatives of Mongol rule at that time, when it was still ruthless and effective. Sergeevich, Drevnosti II, 36-37.

Karamzin, Vol.IV, 106 and note 209.

Karamzin, Vol.IV, 148 and note 320; Karamzin calls this meeting—and the ones in Nizhnii Novgorod and Kostroma, mentioned in the preceding footnote—unlawful.

29

Karamzin, Vol.IV, 45 and note 91. Moscow was subsequently taken and destroyed by the Tatars.


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In the Northwest of the country, where the effect of Tataro-Mongol overlordship was less acute and the Polish-Lithuanian state was the dominant power, the veche survived much longer.30

9. The Situation in Novgorod and Pskov Although a special discussion of the role of the veche in medieval Novgorod and Pskov is not the purpose of this chapter, the topic cannot very well be passed over completely in a discussion of the veche in medieval Russia. From the very beginning, Novgorod displayed more independence vis-à-vis its princes than other Russian towns. During the first decades of the 12th century, it gradually appropriated the right to elect its own posadnik, who was originally an official appointed by the prince to rule the town during the latter’s absence.31 The posadnik thus became the elected burgomaster. The major showdown took place in 1136, when the men from Pskov and Ladoga (Novgorod ‘suburbs’) were invited to a veche, which then imprisoned the serving Novgorod prince Vsevolod32 and his family and expelled him. From then on, the Novgorod veche appointed and expelled the prince (“showed him the road”, in the standard terminology of the Novgorod Chronicle) at will, and occasionally at the drop of a hat. The veche even managed to secure the right to appoint its own bishops (archbishop since 1165), subject to approval by the metropolitan of Kiev. The social and political organization of Novgorod was complicated, but the veche remained the centre of Novgorod’s political life right to the end in 1478, because most of the main actors depended on the favour of the veche. It was generally dominated by clans of boyars and wealthy merchants. The most important official after the posadnik was the tysiatskii (chiliarch, ‘thousandman’), originally the military commander. Together with other prominent citizens from the boyar class, in particular their predecessors, the posadnik and the tysiatskii formed the Council of Lords (Sovet Gospod), in charge of day-to-day business. The offices of posadnik and tysiatskii stayed in the hands of boyar families. Nonetheless, the Novgorod Chronicle contains numerous reports of posadniks being dismissed, banished, or even executed by order of the veche. 30

31

D’iakonov mentions instances of veche meetings in 1465/1470 in Polotsk and in 1440 in Smolensk; M.A. D’iakonov, Ocherki obshchestvennago i gosudarstvennago stroia Drevnei Rusi, S.Peterburg (2nd ed.), 1908, 136.

32

In the course of the 13th century, the posadnik had so clearly become a Novgorod official that the prince’s representative went by another title, the namestnik; e.g. the entry for 1215 in the First Novgorod Chronicle.

Vsevolod Mstislavich, grandson of Vladimir Monomakh; Mstislav had become grand prince of Kiev upon the death of his father in 1125.

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The Novgorod veche therefore, although it grew out of the old Russian popular assembly of early Kievan times, became a more structured institution, functioning in a more mature medieval setting; in many ways it could be compared to similar bodies in Italian and Flemish towns of the Middle Ages. In all this, one has to remember that the territory controlled by Novgorod in its heyday, covering the entire North of European Russia, was larger than all the other Russian principalities taken together. The relationship between Pskov and Novgorod mirrored to some extent the relationship between the latter and Kiev; originally a subordinate town, a ‘suburb’ (prigorod) of Novgorod, Pskov gradually worked itself free, and in the end (in 1347/1348) saw its independence recognized even by Novgorod itself. The territory of Pskov was quite small, compared to the huge size of that of Novgorod. There were other differences as well; but, in general, the character of the Pskov veche was much like that of Novgorod.33 The crowning glory of the Pskov veche was the adoption, probably shortly after 1462, of the Court Charter of Pskov (Pskovskaia sudnaia gramota), the most comprehensive Russian legislation enacted between the Russkaia Pravda and the first code of laws of the unified Russian state, the Code (Sudebnik) of Ivan III of 1497.34 The development of Novgorod independence in the high Middle Ages and the concomitant prominence of the Novgorod veche, and, in the wake of its mother-city, of the Pskov veche, must therefore be traced to two distinct factors. Novgorod’s independence was already well-developed in early Kievan times, and it was saved from occupation by the TataroMongols. Both factors were of course linked by Novgorod’s favourable location in the extreme Northwest of European Russia; this awarded it a key position in Russia’s trade with Northern and Western Europe, and it put maximum distance between it and invaders from Asia.

10. Kievan Rus’ as a Period of Transition Although history is a continuous process of change and transition, one may speak of transition in a more pregnant sense when referring to a period in which several elements or institutions appear to be in an unstable balance, resulting in one or the other gaining the upper hand. This would apply to the period of Kievan Russia, roughly the 11th and 12th centuries, when veche and princely government struggled for hegemony. 33

34

On the Pskov veche, A. Nikitskii, Ocherki vnutrennoi istorii Pskova, S.Peterburg, 18173, 131-139.

On the Pskov Charter, see Iu.G. Alekseev, Pskovskaia sudnaia gramota i ee vremia, Leningrad, 1980, where older literature is cited.


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The evidence from these times suggests that the governmental systems of Kiev and the confederative complex of semi-states of which the grand princely capital of Kiev was the capping-stone, may be regarded as a kind of dyarchical arrangement. There were the princes, united at least by the dynastic ties of the Rurikid house, with their own mini-armies of retainers, their druzhiny, striving to expand their own power, the power of their own branch of the family, and of the territories controlled by them. On the other side, there were the territories, dominated by their capital cities, where the various regional groups within the territories (including the subordinate towns) and the different social groups in the towns furthered their particular interests specifically through the veche, the main locus available for negotiating these interests. As long as the princes continued the practice of seeking advancement through the starshinstvo system of assigning places according to family seniority, the veches were able to hold their own and even reinforce their position vis-à-vis their respective princes. In Novgorod, this resulted in the de facto establishment of a boyar republic. With the proliferation of the Rurikid princes and the accompanying weakening of dynastic solidarity, a succession system based on father-son succession asserted itself. When the next step was also taken: exclusive succession by the eldest son, as soon became the rule in the VladimirMoscow branch, the veche proved unable to compete. Before this process had run its course, it was cut short by the Mongol invasion, introducing a system of Mongol overlordship which left no place at all for the veche. Only in Novgorod and Pskov could a veche-dominated system survive for a few more centuries.

11. The Veche and the Nature of the Kievan Polity All the more important questions concerning Kievan Rus’ and its legal system demand a certain concept of the socio-economic and political organization of Russia at that time. The operation of the provisions of the Russkaia Pravda, the way they related to the function of the prince, the legal relations concerning land, and between town and country, the legal status of various groups; these and other questions can be answered more adequately when such answers can be embedded, or rather visualized, in a general understanding of Kievan Rus’. In this respect, two competing views present themselves, based on parallels with either contemporary Byzantium or early medieval Western Europe: a system in which trade, concentrated in towns and with the accompanying dominance of a money economy, prevailed, or rather a Naturalwirtschaft, in which agriculture was the economically dominant

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factor, and the legal relationships concerning land were decisive. Prerevolutionary Russian and Western authors were more often inclined to favour the former view, Soviet authors the latter. The debate was bedevilled for some time by Marxist dogmatism: feudalism had to follow earlier and more ‘primitive’ socio-economic arrangements, Kievan Russia was declared to be a feudal state, and this meant that certain legal and socio-economic relationships necessarily had to be present there.35 This may also explain the relative lack of interest in the veche of Kievan Russia among Soviet historians; the veche did not fit comfortably into the scheme of exploiting feudal lords versus hard-pressed rural masses.36 Modern Russian historians, such as I.Ia. Froianov, have abandoned this approach and come to a more balanced judgment.37 (See, also, the chapter on “Land Tenure, the Druzhina, and the Nature of Kievan Rus’”.) Without entering into a discussion of the role of the veche in the above-mentioned debate, we may at least acknowledge that our general understanding of Kievan Rus’ would be highly relevant in elucidating the place of the veche during the period concerned, while, conversely, detailed information about the veche may help in extending our conception of its general legal and political context.

12. The Veche in a Comparative European Context Sergeevich had already drawn the attention to institutions similar to the veche among the Greeks in Homeric times and the Germanic tribes, as recorded by Tacitus.38 Some four centuries after Tacitus, the last traces of popular assemblies among the Franks could be observed. Gregory of Tours, in his history of the Franks, relates how the Ripuarian Franks, after their king Sigibert had been killed, accepted Clovis, king of the Salic Franks, as their king by popular assent at an assembly in Cologne, around the year 35

36

This question is discussed at greater length in the chapter on “Land Tenure [etc.]”.

37

This standard Soviet treatment of the veche may be encountered in the works of B.D. Grekov, Kievskaia Rus’, Moskva, 1953, 353-370, and S.V. Iushkov, Obshchestvennopoliticheskii stroi i pravo Kievskogo gosudarstva, Moskva, 1949, 345-359. The entire discussion is reviewed extensively by M.B. Sverdlov, Obshchestvennyi stroi Drevnei Rusi v russkoi istoricheskoi nauke XVIII-XX vekov, S.Peterburg, 1996.

38

See especially the Introduction to I.Ia. Froianov, Drevniaia Rus’, Moskva/S.Peterburg, 1995, 5-21. Also, by the same author: Kievskaia Rus’: Glavnye cherty sotsial’noekonomicheskogo stroia, S.Peterburg, 1999 (basically a longer version of a work with the same title from 1974); Kievskaia Rus’: Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980; Kievskaia Rus’: Ocherki otechestvennoi istoriografii, Leningrad. The three Kievskaia Rus’ titles have been republished, together with other works by Froianov, in Nachala Russkoi istorii, Moskva, 2001.

In the Germania, chapters 11-15; cf. Sergeevich, Drevnosti II, 119-149.


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504.39 Charlemagne, after conquering and forcibly converting the Saxons, forbade them to hold popular assemblies any longer in 789.40 Some of the Germanic leges barbarorum were ostensibly adopted by popular assemblies: e.g. the Lex Alamannorum, around 712-725, and the addition to the Lex Baiuvariorum (the so-called decree of Duke Tassilo of 772).41

13. The Russian Veche and Legislation The era of Kievan Russia is the period in which an organized state structure gradually took shape. This implies that law in the traditional sense began to be explicitly created and applied by particular institutions. Whether the veche played a role in this process is therefore a legitimate question. On the one hand, it is obvious that a large assembly—often called together at the spur of the moment, enjoying neither a well-defined composition nor clear operational procedures—could not bear the legislative responsibilities of a modern parliament. On the other hand, in view of the supreme powers the veche appears to have exercised originally and which survived in some places and to some extent into Kievan times and even beyond, one would expect the veche to be at least occasionally involved in important decision-making of a legislative nature. There are, indeed, a few indications pointing in this direction. As related above, some of the 10th century treaties with the Greeks were concluded on behalf of the whole Russian (i.e. Kievan) population, and quite possibly some kind of consultation of the population (in this case probably the field army) may have accompanied the negotiations with the Greeks. The Statute of 1150 of prince Rostislav Mstislavich of Smolensk, which regulates certain rights of the Smolensk Church, states that it had been decreed by the prince after consultation with his people (sdumav s liudmi svoimi).42 Similar formulas may be encountered in Novgorod charters which embody treaty texts. Most texts begin with a greeting on behalf of the bishop (or sometimes the prince), the posadnik, the tysiatskii, other important persons, and “all Novgorod” or “all Novgorodians”. But, in some 39

40

Capitulatio de partibus Saxoniae, where it says in XXXIV: Interdiximus, ut omnes Saxones generaliter conventos publicos ne faciant.

Historia Francorum, ch.II, 39. Another general assembly, called by Clovis, is mentioned by Gregory of Tours in ch.II, 42.

41

42

H. Conrad, Deutsche Rechtsgeschichte. Band I: Frühzeit und Mittelalter, Karlsruhe (2nd ed.), 1962, 100, 133.

PRP II, 37-42. Of course, liudmi could also be interpreted more narrowly as referring to the prince’s advisors, but several knowledgeable commentators have argued that in this case the term must refer to the Smolensk veche.

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cases, the treaty is declared to have been concluded by the said persons and “all Novgorod”, or the principal Novgorod spokesman (the bishop or the prince) states that he has consulted these persons and “all Novgorod” (sgadav […] so vsem Novgorodom).43 The Court Charter of Pskov states explicitly (as mentioned above) that it was adopted by the Pskov veche. It would be an exaggeration to speak of the veche as an important legislator or co-legislator in Kievan times. For one thing, the volume of explicit legislation was quite small, and for another, most legislation was closely connected with what we would regard as the judicial function: the organization of prosecution, courts, and execution, ant it was precisely this function which was one of the core elements of princely power. The best functional parallel of the veche’s legislative impact in modern times would be the referendum: a consultation of the population on broad issues of great interest to one and all, questions of war and peace being foremost among them.

14. Renewed Interest in the Veche The more recent studies by Froianov are representative of a renewed interest in the Kievan period of Russian history and of a willingness, even eagerness, to review critically the undisputed achievements of Soviet historians and legal historians.44 It is of course fully understandable, and in fact quite justified, that serious scholarship felt the need to purge itself from ideological ballast. The Marxist obsession with class struggle and its rigid classification of historical periods constituted the centre-piece of a mental straightjacket, which was first imposed from outside, but subsequently internalized and freely embraced by most members of the profession. But the veche may also be understood as having a symbolic significance for present-day Russians: it could be argued that Russia, having lived through the despotism of the rulers of Muscovy, the autocracy of the tsars, and the totalitarian regime of the Soviets, has now returned to the democratic beginnings of the Kievan era. A sober look at the facts would add a few question-marks to such an argument. The veche reflected a socio-political order which was already being replaced by new relationships at the time from which the first documentary evidence dates. There are no indications that the veche was 43 44

Cf. GVNP No.29 (pp.56-57), a treaty of 1262/1263 with the Hanseatic cities; GVNP No.31 (pp.58-61), a treaty of 1269 with the Hanseatic cities. Cf. S.V. Bushuev, “Sotsial’no-ekonomicheskie otnosheniia i obshchestvennyi stroi Drevnei Rusi”, in S.V. Bushuev & G.E. Mironov, Istoriia gosudarstva rossiiskogo: Istorikobibliograficheskie ocherki, Book 1, Moskva, 1991, 95-100.


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viewed by its contemporaries in terms of its democratic merits. There has been a tendency in Russia, at least for the last 200 years, to look upon Kievan Russia as the country’s golden age, and a democratic veche, preferably deciding matters by consensus, would make the myth even more attractive. Myths may even be true, but one should have a clear idea at what level.

Chapter 6 The Elder Brother in Russia The starting-point for this chapter is the curious fact that a concept of hierarchical ranking or seniority has been prominent in most of the more than thousand years of the history of the Russian state. In the early period of Kievan Rus’, it manifested itself in a combination of ranking of princes belonging to the ruling house and a corresponding ranking of provincial capitals assigned to various princes. As the Kievan empire was gradually transformed into a loose confederation of semi-independent principalities, the hierarchical order within the Kievan ruling house underwent a metamorphosis by which a quasi-contractual relationship between “elder” and “younger” brothers became the dominant idea. This arrangement lost its relevance when the grand princes of Moscow acquired supreme power and exclusive sovereignty in the entire Russian land. Then the concept of hierarchical ranking returned within the organization of the Muscovy state through the institution of mestnichestvo, the attribution of offices according to the social position of the prospective incumbent and his family. This system lasted until 1682, and in 1722 Peter the Great introduced his Table of Ranks which assigned all military, civilian and court personnel to one of 14 ranks. In an amended form, the Table of Ranks survived until the October Revolution. In Stalin’s time, the ‘elder brother’ metaphor enjoyed a certain popularity in Soviet political discourse; during the last decades of Soviet power, the political hierarchy among Soviet leaders became more and more formalized, to such an extent that an individual’s status could be precisely determined by considering the office occupied by him.

1. The House of Rurik From the Kievan grand prince Vladimir (†1016), and until the death of tsar Fedor Ivanovich, the insignificant son of Ivan the Terrible, in 1598, all the rulers of Russia and its component principalities had belonged to the house of Rurik. For a while, leading Soviet historians denied the Scandinavian roots of Rurik.1 This politically motivated position is not supported by anybody any longer. It is equally undeniable that Rurik was 1

B.D. Grekov, in his best-known work, Kievskaia Rus’, Moskva, 1953, 452-453, is not entirely clear, but seems to deny Rurik’s Scandinavian credentials in a collective work published in the same year: B.D. Grekov (ed.), Ocherki istorii SSSR, period feodalizma IX-XV vv., Vol.1, Moskva, 1953, 76-77 (the chapter in question was written by Grekov himself). S.V. Iushkov is quite outspoken in Obshchestvenno-politicheskii stroi i pravo kievskogo gosudarstva, Moskva, 1949, 67.

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not just a Viking adventurer but could claim royal rank on account of his ancestry.2 According to the annals (the Primary Chronicle, also called Nestor Chronicle or Tale of Bygone Years), Rurik (Hrörekr) arrived in Russia in 862. His relatives and descendants (the Kievan princes Oleg or Helgi, Igor or Ingvar and his wife Olga or Helga, and Sviatoslav) waged war with and subdued other Slavic tribes populating European Russia. During this period, the Scandinavian element in the ruling house and its attendants was slowly being absorbed by its Slavic surroundings. Whether princely succession among the descendants of Rurik had its origin in Scandinavian or in local Russian tradition is difficult to answer.3 In any case, the two systems were probably very similar. The evidence from the Primary Chronicle and other sources is quite clear and reveals the operation of several interlocking principles. The first principle, self-evident within the setting of the times, is that only male members of the house of Rurik were eligible to succeed.4 The second principle discernible, at least during the first centuries after Rurik, was that the house prevailed over its individual members; or more explicitly, that rulership belonged to the house, rather than to any individual member. The third principle, closely connected to the previous one, was seniority: within the ruling house seniority determined the sequence of succession. The question may also be approached differently, as has been done by several prominent Russian historians in the past: as a way to solve the tension between seniority within the family (starshinstvo) and the claim to receive one’s father’s heritage or patrimony (otchina).5 2

3

Cf. E.V. Pchelov, Genealogiia drevnerusskikh kniazei, IX-XI v., Moskva, 2001, ch.1; in his section on the possibility of Rurik’s Slavic origins, Pchelov does not even discuss the opinions of Grekov and Iushkov.

4

This question was first asked by E. Shchepkin in his paper “Poriadok prestolonaslediia u drevnenorvezhskikh konungov”, in Sbornik statei, posviashchennykh V.O. Kliuchevskomu, Moskva, 1909, 164-216.

5

The formidable Olga, who ruled from 945-964, served as a regent for her son Sviatoslav, who assumed the reign when he reached manhood. Generally, the principle typically belongs to patriarchal societies; women may occasionally be in the supreme ruling position, but then as mothers, wives or widows of men who are for some reason unable to rule (being too young, absent, incapacitated, deceased).

See, e.g., A. Presniakov, Lektsii po russkoi istorii, Vol.I, Kievskaia Rus’, Moskva, 1938, 232-235, and also by the same author, Kniazhoe pravo v drevnei Rusi, S.Peterburg, 1909, 68-70. Also V. Sergeevich, Drevnosti II, Moskva (3rd ed.), 1908, 248-249; V. Kliuchevskii, Kurs russkoi istorii, included in Sochineniia, Vol.I, Moskva, 1956, 180185; I. Froianov, Kievskaia Rus’, Ocherki sotsial’no-politicheskoi istorii, Leningrad, 1980, 55-57.

The Elder Brother in Russia

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In its original and strict form, the starshinstvo principle excluded the application of substitution: sons (or grandsons) taking the places of their fathers. The rationale for this was apparently that the ruler did not enjoy his position on the basis of an individual right, but on account of his position in the family. When he died, his position was taken over by the most worthy member of the family, the most ‘senior’, and this need not be his son(s). Another consequence of the principle was that the right to rule could be broken up in such a way that all more or less equally worthy members of the family received a share in accordance with their individual starshinstvo. The historical origin of the principle is probably in patriarchal pastoral societies where it governed the process of maintaining and, if required, breaking up of large herds of cattle.6 The peculiar form of starshinstvo in Old Russia displayed two further features: there existed a more or less fixed hierarchy among family members, and this hierarchy corresponded with a hierarchy of cities. Family hierarchy was determined first by generation, and within the generation usually by age. Uncles preceded nephews, even where the latter were sons of elder and predeceased brothers. In other words, the patrimonial or substitution principle did not operate: sons did not automatically step into the shoes of their fathers. Especially with regard to succession to the throne of Kiev (the best documented case, for obvious reasons), there was a clearly observable tendency in Kievan times to deplete first an entire generation of potential successors before passing on to the most senior member of the next generation. It goes without saying that within the system fathers and grandfathers were always considered senior in respect of their sons and grandsons. The hierarchy of Russian cities can be reconstructed on the basis of historical records as: Kiev, Novgorod, Chernigov, Pereiaslavl’, Polotsk, Rostov, Smolensk; among the less prominent towns the proper sequence is less clear. Ideally, when a prince died, all those with lower seniority would move up one step on the ladder. The principle, as described, of course never operated as such.7 As the ruling house of Rurik expanded, the sense of forming a single ruling fam6

7

This is suggested by the fact that the principle, in one form or another, occurs in pre-medieval times not only among Indo-European peoples, but also among various Turkic and Mongol peoples. The division of Chingis-Khan’s empire among his sons and later on among his other descendants was quite similar to the older Russian system. There are also clear parallels with the systems of royal succession among the Merovingians and Carolingians and with the derbfine regulating succession in the case of Old-Irish kingship. A similar system operates to the present day in Saudi-Arabia. See, also, the chapter on “Law’s Beginnings and Early Law”.

The point of view advanced here is by no means uncontested. The central importance of starshinstvo was first stressed by S.M. Solov’ev in Istoriia Rossii s drevneishikh vremen,

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ily weakened and solidarity within sub-divisions of the family increased. Soon, branches of the family ruled almost without interruption for several centuries in a particular province. Moreover, a powerful prince could bypass weaker family members and take by force what according to custom belonged to others.

2. From Genealogical to Contractual Seniority The extraordinary prolificity of the house of Rurik in subsequent centuries aggravated the inherent defects of the original system of succession in more than one way. The Kievan realm became fragmented in ever smaller principalities. Where the old seniority principle was strictly adhered to, dynastic upheavals ensued, due to the incessant moving around of ruling princes. The branching out of the ruling house resulted in an obscuring of the seniority pattern based on strict genealogical principles and in a concomitant insecurity in succession procedures. One important consequence of this development was that the patrimonial or substitution principle came to the fore. The tendency of sons succeeding in their fathers’ principalities, never wholly absent in the early Kievan times, gained new strength and in fact became and stayed dominant right into the era of Muscovy Russia. Another consequence, of particular interest in the perspective of this chapter, was that seniority did not disappear as a factor co-determining princely succession, but, having lost its unequivocal genealogical definition, became an object of negotiation among the princes. Even during the earlier periods, seniority would often not be something that could be established with absolute certainty, and then an element of negotiation would inevitably be involved.8 After the death of Mstislav the Great, the son of Vladimir Monomakh, in 1132, the paramount position of the Kievan grand prince diminished and in the end disappeared with the onset of Mongol domination. This period of ‘separate principalities’ or apanages (udel’nye kniazhestva) formally

8

Moskva, 1851-1879, while his theories were rejected by V.I. Sergeevich in Drevnosti II, 195-200. A.E. Presniakov in Kniazhoe pravo, 61-68, occupied an intermediate position. See, also, his Lektsii I, 233-235. D’iakonov (144-146), regarded starshinstvo as one of several principles governing succession in Kievan Russia. Iushkov, Stroi, 339, rejected Solov’ev’s theory on crude Marxist grounds. Similar to my view is the one taken by L.A. Nazarenko, “Rodovoi suzerenitet Riurikovichei nad Rus’iu (X-XI vv.)”, A.P. Novosel’tsev (ed.), Drevneishie gosudarstva na territorii SSSR. Materaly i issledovaniia 1985 god, Moskva, 1986, 149-157.

A recent study by A.S. Shchavelev points out that formalized meetings and banquets of princes played an important role in this respect. A.S. Shchavelev, “S”ezd kniazei kak istoricheskii institut Drevnei Rusi”, T.V. Gimon & E.A. Mel’nikova (eds.), Drevneishie gosudarstva Vostochnoi Evropy 2004 god. Politicheskie instituty Drevnei Rusi, Moskva, 2006, 268-278.


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ended with the annexation of the last independent principality of Riazan’ in 1520, although the supreme position of the grand prince of Muscovy had already been undisputed a long time before. In this entire period, the recognition of seniority among princes remained the most comprehensive expression of the politico-legal relationship between the princes. The relationship could be expressed in unilateral or bilateral (multilateral) documents. The former type lent itself to a definition of a fatherson relationship, and occurred in two forms: the disposition inter vivos and the testament. Both forms appear at an early stage in Russian history. In 970, still in pagan times, the Kievan prince Sviatoslav set up his sons Iaropolk, Oleg and Vladimir as subordinate princes in respectively Kiev, Dereva and Novgorod. The first reported instance of a princely testament in which the testator divided his realm among his sons was in 1054 when Iaroslav the Wise appointed his sons Iziaslav, Sviatoslav, Vsevolod, Igor and Viacheslav as princes in resp. Kiev, Chernigov, Pereiaslavl’, Vladimir and Smolensk. The testament explicitly conferred seniority on the eldest son Iziaslav by exhorting the other sons to: “Heed him as you have heeded me, that he may take my place among you.” For defining a seniority relationship, however, the bilateral instruments, basically princely treaties, were the most important (see, also, the chapter on “The Treaties of Medieval Russia” in this work, where this topic is treated from a somewhat different perspective). The first reported treaty between princes of the Rurikid dynasty is from 1026, between the two senior surviving sons of St. Vladimir, Iaroslav the Wise and Mstislav, who divided the Kievan realm among $themselves. Numerous other princely treaties, bilateral as well as multilateral, are mentioned in the Primary Chronicle and the practice continued into the 16th century. Of the surviving texts, most are to be found in the state archives of Muscovy and concern relationships between the grand prince of Muscovy and other princes.9 Some of the treaties were concluded between princes who regarded each other as equal; in such cases, the treaties would speak of brotherhood but refrain from designating one of the parties as elder brother. These treaties are not much different from true international treaties, such as those with the Lithuanian prince. Usually, however, the inequality is explicitly expressed in the text. The standard practice was to refer to one of the treaty partners as the elder brother and the other as the younger brother. Occasionally, the relationship was couched in father-son terms. This was only a more emphatic way of spelling out the elder/younger 9

The basic publication is S. Bakhrushin (ed.) and L.V. Cherepnin (comp.), Dukhovnye i dogovornye gramoty velikikh i udel’nykh kniazei XIV-XVI vv., Moskva/Leningrad, 1950 (hereafter: DDG).

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brother relationship, because, actual fathers and sons would not conclude treaties (the father would unilaterally impose his will).10 The most common treaties between Russian princes in the Middle Ages were those which established or reaffirmed seniority of one of the signatories, by recognizing his status as elder brother. This was invariably done in the opening address of the documents with the words: “[…] you, my younger brother, prince N.N., should kiss the cross [i.e. swear] to me, your elder brother, prince N.N. […]”.11 The treaties were normally drawn up in two authentic but different copies, made out in the name of both parties, in accordance with established Byzantine practice; the other copy would therefore start: “[…] you, my elder brother, prince N.N., should kiss the cross to me, your younger brother, prince N.N. […]”. The body of the text of the treaty would be devoted to defining the exact content of the seniority relationship. A more detailed analysis of this topic is given by the prominent pre-revolutionary legal historian V. Sergeevich.12 Sergeevich points out that the most important treaty clauses were: the prohibition to negotiate with foreign powers, the duty to rescind or revoke treaties with other powers, and the duty to go to war in support of the “elder brother”. The last two duties were typically imposed on the “younger brother”. The prohibition to negotiate with foreign powers (ne kanchivati) was usually bilateral in the sense that both parties would promise not to conclude treaties without informing the other (a tobe, brate, ne kanchivati ni s kim bez nashego vedan’ia). In some cases, the younger brother was forbidden altogether to engage in foreign relations or in relations with specific powers. In particular, the elder brother would in a number of cases reserve for himself the right to deal with the Mongol overlords, by forbidding the younger brother to enter into contact with the latter (Ordy ne znati).13 In this context, “foreign powers” refers to Russia’s neighbours, such as the Golden Horde, Lithuania, the Baltic cities, etc., but also to other Russian principalities, because the chief competitors of a powerful prince who was trying to build up a network of client princes were other princes with similar ambitions. The duty to render military aid to the elder brother was usually expressed through the younger brother’s promise to mount his horse (vsesti na kon’) whenever the elder brother rode to war. If the latter did 10 11

Sergeevich, Drevnosti II, 152.

12

E.g. DDG No.9, 25 (treaty of 1375 between the Moscow grand prince Dmitrii Donskoi and the Tver’ grand prince Mikhail Aleksandrovich).

Sergeevich, Drevnosti II, 200-220.

E.g. DDG No.36, 101 (treaty of 1439 between the Moscow grand prince Vasilii Vasil’evich and Vasilii Iur’evich, prince of Galich).

13


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not personally lead his army, it would normally suffice for the younger brother to send a contingent of troops with a commander, instead of going himself. This was a consequence of the system of mutual honour, recognized in the treaties, where both parties would usually declare that they would maintain each other as elder or younger brother “in honour and without offence”. The significance of the third principal clause emphasized by Sergeevich, the duty to break off relations with other powers (tselovanie slozhiti), was in the establishment of the exclusivity of the starshinstvo (seniority) relationship. Where this clause was included, the traditional seniority structure of the Rurikid dynasty was set aside and, henceforth, the younger brother had only one single elder brother. In other words, although the starshinstvo clause in a treaty appeared to lend great weight to the institution, it actually destroyed it in its original form, because the single hierarchical system of the whole of Russia was thus replaced by a number of unconnected bilateral relationships. Apart from the clauses discussed by Sergeevich, a number of other conditions is usually to be found in the treaties establishing or reaffirming seniority. Some of these conditions are bilateral (such as the abovementioned ne kanchivati), others unilateral (such as tselovanie slozhiti or vsesti na kon’). Among the bilateral ones, one invariably finds the rather vague duties to be united (byti zaodin) and well-disposed towards each other (dobra choteti), and the more concrete agreements about respecting each other’s territories, officials, courts, taxes, etc. The most important duties unilaterally imposed on the younger brother were those of informing the elder brother of anything affecting the latter’s interests,14 and of accepting his friends or enemies as such.15 The unilateral duties assumed by the elder brother were naturally more restricted, but included sometimes an undertaking not to acquire land within the younger brother’s territory without the latter’s knowledge.16 14

15

E.g. DDG No.13, 37 (treaty of 1390 between the Moscow grand prince Vasilii Dmitrievich and Vladimir Andreevich, prince of Serpukhov and Borovsk), with the usual formula: “and whatever you will hear to our advantage or disadvantage from Christian or heathen, you will inform us about it truthfully, without trickery, according to oath, without deceit.”

16

E.g. DDG No.14, 40 (treaty of 1390 between the Moscow grand prince Vasilii Dmitrievich and his brother Iurii, prince of Galich), with the usual formula: “and whoever, grand prince, is your friend, will be my friend, and whoever is your enemy will be my enemy.”

E.g. DDG No.27, 70 (treaty of 1433 between the Moscow grand prince Vasilii Vasil’evich and Vasilii Iaroslavich, prince of Serpukhov and Borovsk).

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In the treaty practice of the grand princes of Moscow, the hereditary element was gradually reinforced. This was effected by inserting several related provisions. Continuity with the past was emphasized by recalling that the present seniority connection was identical with the connection which existed between the fathers or even grandfathers of the signatories.17 Then the elder brother stipulated recognition as such, not only for himself, but also for his son and further descendants.18 Finally, the younger brother, in his turn, engaged himself as well as his sons and descendants.19 At the beginning of the discussion of the starshinstvo principle, the point was made that princely succession in medieval Russia was determined by the tension between the competing principles of seniority and of substitution. During the earlier part of the rule of the Rurikid dynasty, the seniority principle was dominant. Once, however, the ruling family had increased in size, the principle of starshinstvo was seen to carry the seeds of its own decline. From the moment, it was not any longer determined by clear genealogical rules, but by shifting power relations, it became an object for negotiation. At that point, the substitution or patrimonial principle returned with a vengeance; princes sought domination over other princes and their descendants, not only for themselves, but also for their own descendants. In one sense, nevertheless, the seniority principle grew in strength: the strict centralizing tendency which accompanied the ascent of the substitution principle did not tolerate the division of the lands of the Moscow grand prince among his surviving sons. Accordingly, the testaments of the Moscow grand princes pushed them all aside in favour of the eldest son, who thereby achieved absolute seniority over his younger brothers.20

3. Muscovy Russia: Mestnichestvo The 16th century witnessed the final triumph of the grand princes of Moscow as the sole rulers of Russia. By the same token, the seniority principle had become irrelevant as a means of determining relations between princes of the same house. The numerous remaining subdivisions of the Rurikid dynasty all became servitors of the grand prince and tsar of Russia. Only their princely title distinguished them from other magnates serving the tsar—the boyars. Within this new class of noble servants, a new seniority concept emerged, mestnichestvo, the assignment of offices in accordance 17

18

E.g. DDG No.45, 129 (treaty of 1447 between the Moscow grand prince Vasilii Vasil’evich and Vasilii Iaroslavich, prince of Serpukhov and Borovsk).

Ibidem.

Ibidem.

E.g. the testament of Ivan Vasil’evich of 1504, DDG No.89, 353-364.

19 20


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with the rank held by the appointee’s family and with the position of the appointee within his own family. “Precedence” would be the closest term in English, although this general designation does not do justice to the peculiarities of mestnichestvo. The operation of mestnichestvo is known in considerable detail, on account of the relative abundance of the surviving materials. Most of the leading pre-revolutionary historians of Muscovy Russia discussed it in their works.21 Neither was it neglected by Soviet historians, although they often approached the phenomenon from a one-sided Marxist point of view.22 In the later Soviet period, a more scholarly attitude prevailed; in particular, the publication of sources received much attention.23 In making important military, civil and court appointments, the Moscow grand prince (tsar since 1547) observed the complicated rules of the mestnichestvo system. The system owed its name to the term mesto (place), which referred to the rank of an individual within his family and in inter-family relationships. If A was an eldest son, then the following two brothers B and C would occupy the next two places. The fourth place was shared by the eldest son of A and the fourth brother D of A, B and C. Once more uncles and nephews got involved, the matter became accordingly more complex. The system was based in principle on an old tradition from Kievan times (and probably long before that), derived from the idea of the unity of the family. The weaker position of the fourth brother (and further brothers) was an innovation of Ivan IV; as Kliuchevskii suggests,24 it could have been based on the probability that by the time 21

22

The main prerevolutionary monograph study on mestnichestvo is A.I. Markevich, Istoriia mestnichestva v moskovskom gosudarstve v XV–XVII vv., Odessa, 1888. Further: N.P. Pavlov-Sil’vanskii, Gosudarevy sluzhilye liudi, S.Peterburg, 1898, newly published together with another work (Liudi kabal’nye) by the same author, Moskva, 2001 (references below are to the 2001 publication), ch.II, 65-79. V. Sergeevich, Lektsii, 120-140. M. D’iakonov, 284-294. V.O. Kliuchevskii discusses mestnichestvo in Lecture XXVII in his Kurs russkoi istorii (Vol.II, 145-156, in the Sochineniia edition, Moskva, 1957, used by me).

23

A convenient overview of the literature in Iu.M. Eskin, Mestnichestvo v Rossii XVIXVII vv. Khronologicheskii reestr, Moskva, 1994, 7-15.

24

E.g. Iu.N. Mel’nikov, “Mestnicheskie dela v razriadnom proizvodstve 80-kh godov XVI v.”, Vspomogatel’nye istoricheskie distsipliny, Tom IX, Leningrad, 1978, 222-235; K.V. Baranov, “Akty XVI–nachala XVII veka iz mestnicheskikh del”, A.V. Antonov (ed.), Russkii diplomatarii, Vol.7, Moskva, 2001, 35-51; Iu.M. Eskin, “Mestnichestvo, rodoslovtsy i ‘rodoslovnye paskvili’”, V.L. Ianin (ed.), Ot Drevnei Rusi k Rossii novogo vremeni [KhoroshkevichFestschrift], Moskva, 2003, 165-172; Iu.V. Ankhimiuk, Chastnye Razriadnye knigi s zapisiami za posledniuiu chetvert’ XV–nachalo XVII vekov, Moskva, 2005.

Op.cit., 148.

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the fourth son was born, the eldest son might already have a son himself. This would explain why the fourth son and his eldest nephew are referred to as sverstniki (coevals). When an appointment had to be made, the ranking of the different princely and boyar families had to be combined with the first system (of internal family hierarchy). In such a situation, precedents were of decisive importance, and the more recent the precedent, the more powerful. For this reason, a special governmental department, the Razriadnyi prikaz, kept registers of appointments (razriadnye knigi) which allowed the solution of the frequent disputes about precedence. Additionally, many leading families maintained their own registers, in order to be able to have the necessary information at their disposal would the need arise.25 In theory, every nobleman belonging to a princely or boyar family would have a fixed place in the governmental hierarchy. In fact, the system was anything but static, because every appointment could change the balance. This also is part of the explanation why the participants attached such great importance to holding on to and improving their position on the hierarchical ladder. Any appointment which involved a deterioration in the eyes of the appointee would not only affect his own prospects, but also those of his family members. The claimant in a typical mestnichestvo dispute would, for instance, submit that the post which had been proposed to him (e.g. deputy governor of a particular town) would involve him serving under a governor whose uncle had served as deputy governor of another town under the claimant’s father as governor. Mestnichestvo claims were dealt with by a panel of boyars, and sometimes by the prince (tsar) himself. Several authors have noted that everybody, including the prince himself, took such disputes very seriously. Even Ivan the Terrible, who was not averse to dealing ruthlessly with troublesome nobles, always displayed great patience and tolerance in mestnichestvo cases.26 A nobleman was expected and actually obliged to observe the system and to refuse an appointment which he considered beneath the dignity of his family and himself. In exceptional cases, he could be imprisoned for his refusal to accept a position proposed to him, or he could be appointed, without his agreement and as a punishment, to another post. Although the system was in its heyday in the 16th century, the strains it imposed on the state’s administration were beginning to show. Legislation by Ivan the Terrible in 1551 allowed certain military appointments to 25 26

See the special study by Ankhimiuk.

Cf. Pavlov-Sil’vanskii, 74.


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be made “without places” (bez mest); the law stipulated that such appointments would not affect the status of the appointees.27 In the end, the mestnichestvo system, constricting the influx of new talent into the administration of the state, became too much of a burden. It had led to endless strife among the leading families and had seriously hampered the tsar in selecting suitable servants. In 1682, tsar Fedor Alekseevich abolished it and the registers were burned, “to the joy of contemporaries and to the sorrow of future historians”, in the words of S.G. Pushkarev.28 If the actual operation of the mestnichestvo system is well-documented and studied, its origins and its functionality are less clear. The views expressed more than a century ago by Pavlov-Sil’vanskii and, less explicitly, by Kliuchevskii, still seem to offer the best explanation. Appointment registers (razriady) first appear during the government of Dmitrii Donskoi (1362-1389).29 In 1408, when his son Vasilii I (1389-1425) was grand prince, the Lithuanian prince Patrikii Narimontovich joined the court of the Moscow grand prince and subsequently married Vasilii’s daughter.30 In the course of the 15th century, there was a steady influx of Russian princes of the Rurikid house, who had lost their positions as rulers of independent principalities and had to look to Moscow for their prospects. The Russian, Lithuanian and a few other foreign princes had to be accommodated in a governmental hierarchy which in the past had been populated by the indigenous aristocracy of Muscovy. This probably created the need to balance the factors of family dignity and service record. The eagerness with which all interested parties pressed their claims would favour the emergence of a formalized procedure to evaluate such claims. The maintenance of a balance between the ambitions and interests of the competing aristocratic groups may also explain the importance of observing mestnichestvo for the prince. There certainly was an element of “divide and rule” in his espousal of the principle. It integrated his former contenders, the members of the ruling houses of the principalities absorbed by Moscow, into the higher level of the Moscow aristocracy; it hindered, above all, the solidification of a bloc of magnates which would oppose the expansion of princely power. It was only when these factors became less 27 28

29 30

Texts in PRP IV, 582-586.

In his Dictionary of Russian Historical Terms From the Eleventh Century to 1917 (compiled by S.G. Pushkarev, edited by G.V. Vernadsky and R. Fisher), New Haven/London, 1970, 60.

Ankhimiuk, 29.

Cf. A.A. Zimin, Formirovanie boiarskoi aristokratii v Rossii vo vtoroi polovine XV–pervoi treti XVI v., Moskva, 1988, 29.

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threatening and the disadvantages of mestnichestvo more manifest, that the negative effects of the arrangement led to its abolition.

4. The Table of Ranks The abolition of mestnichestvo unquestionably represented a victory of merit over birth, as a qualification for public service. This tendency became even more pronounced with the introduction of Peter the Great’s Table of Ranks (Tabel’ o Rangakh) in 1722.31 The idea was not altogether new, as an attempt to draw up a Table of Ranks had already been made during the reign of Peter’s older half-brother, tsar Fedor Alekseevich.32 The Table of Ranks was one of the best prepared legislative innovations of the Petrine era. The practice in a number of West European countries had been studied. The Table consisted of a hierarchy of 14 steps, embracing the armed services, the civil service, and the court. In theory, everybody had to start at the bottom of the ladder and work his way up. The meritocratic foundation of the system was combined with the element of hereditary nobility, a trend which became more dominant with subsequent amendments of the relevant legislation. Attainment of a certain rank (the 12th class—lieutenant—for military personnel, the 8th class for civilians—college assessor) conferred hereditary nobility; the lower ranks only created personal nobility for the incumbent. In 1856, entrance to the hereditary nobility was restricted to attainment of the 6th class (colonel) for the military and of the 4th class (full state councillor) for civilians. The background of the institution of the Table of Ranks in 1722 was the dominance of the service character of the nobility. The increasing dysfunctionality and ultimate abolition of mestnichestvo, as a means to channel recruitment of candidates for the higher levels of the military and civil service, made it necessary to look for another mechanism. Under the Moscow grand princes and tsars, the high nobility, princes and boyars, had gradually been reduced to servants of the state. At the same time, access to the higher levels of the bureaucracy had been opened up, to a certain extent, to loyal and effective members of the lower nobility and other classes. Being noble involved serving the state, either as a soldier or in some civilian function. In one way, the Table of Ranks continued and strengthened this principle by stressing in its preamble that only service to the state conferred status. In another way, the Table reversed the old principle by 31 32

Text in PRP VIII,179-203; and in RZ IV, 52-78.

Cf. RZ IV, 53. A Table of Ranks was known in the Byzantine administrative system, see J.B. Bury, The Imperial Administrative System in the Ninth Century. With the Revised Text of the Kletorology of Philotheos (British Academy, Supplemental Papers), London, 1911.


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connecting the acquisition of nobility with the attainment of a specific rank. Instead of “service follows nobility”, the new principle was “nobility follows service”.33 In the course of the 18th century the service duties of the nobility were gradually abolished so that only the (mitigated) automatism of conferral of nobility with the attainment of a specific rank remained. Mestnichestvo, as argued above, resulted in the emergence, but only in theory, of a precise hierarchy between all persons occupying higher positions in the Muscovy state. The Table of Ranks would, again in theory, go even further because it embraced a far greater section of the state’s personnel, down to the lowest officer ranks and modest civilian positions.

5. Postscript: The ‘Elder Brother’ in Soviet Rhetoric The ‘elder brother’ metaphor experienced a remarkable revival in the Soviet Union, when it came to be applied to the position of the Russian republic (the RSFSR) within the USSR. I did not encounter it in Lenin’s works and neither did it occur in the speeches at the 18th Party Congress in 1939, but after Stalin alluded to it on 24 May 1945 at a toast to the Russian nation during a Kremlin reception for military commanders, it soon became current at official Party meetings. Stalin actually called the Russian people “the leading people”, but in the editorial comment to his speech, published in Bol’shevik, the Russian people was designated as the elder brother (starshii brat) of the other peoples of the USSR.34 At all the Party congresses from the 20th (1956) to the 26th (1981), delegates from the non-Slavic (oriental) republics used the ‘elder brother’ designation in referring to Russia.35 Intriguingly, the term was not used by delegates from the European (Ukrainian, Belorussian and Baltic) republics. Also, when a spokesman from one of the ‘oriental’ republics used the term, it was always someone from the indigenous nation, and not an ethnic Russian. 33

34

The Table of Ranks was of fundamental importance for the peculiar character of the noble class in Russia, which survived as a legal phenomenon until 1917, because the Table was mainly responsible for the enormous size of this class: 1% of the population at the beginning of the 20th century (plus another 0.5% of persons enjoying personal nobility). I have discussed the history of the Russian nobility in more detail in “De Russische adelsgeschiedenis”, Virtus. Jaarboek voor Adelsgeschiedenis, Vol.13 (2006), 62-77 (in Dutch).

35

“Russkii narod–rukovodiashchaia sila sredi narodov nashei strany”, Bol’shevik, 1945, No.10, 12.

XX S”ezd Kommunisticheskoi Partii Sovetskogo Soiuza, Stenograficheskii otchet, Vol.1, Moskva, 1956, 404, 448; XXI S”ezd, Vol.1, 325, 337, Vol.2, 33; XXIV S”ezd, Vol.1, 362.

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The usage also spread to representatives from other countries within the Soviet bloc, such as Mongolia and Bulgaria, who defined their relationship with the USSR as that between a younger and an elder brother. The idea of an innate hierarchy, implicit in the ‘elder brother’ metaphor, also resurfaced at another point in the Soviet political order during the post-Stalin era. Careful ‘Kremlinological’ analysis showed that a rather precise order of precedence prevailed at the higher levels of the political system. At the top was the Politbureau, which itself knew a distinct ranking of its members and candidate members. Then came the Party Secretariat, which partly overlapped with the Politbureau. The SecretaryGeneral, at the head of both bodies, was the undisputed leader of the USSR. All members of the Politbureau as well as all Central Committee Party Secretaries (the departmental heads of the Party Secretariat) were (on paper) elected by the Central Committee (several hundred members), which in turn was elected (on paper) by the Party Congress (4000-5000 delegates). The entire recruitment process was in fact managed from the top, the Politbureau. The Central Committee, comparable to the Diet of the Holy Roman Empire, consisted entirely of ‘quality’ blocks of members: the 14 Party secretaries of the non-Russian republics, most provincial Party secretaries, the most important ministers, the military high command, a number of important ambassadors, a few seats for leading figures from the arts and sciences and the media, etc. An individual making a career in the Party might reach a certain level, justifying his entry into the Central Committee. He would then be given a position (such as Party secretary in a province) to which his status entitled him. There was also a clearly observable hierarchy among the Party positions which yielded Central Committee membership. The parallels with institutions from the past are intriguing. Party secretaries were promoted from one province to another and moved around regional capitals as the princes of Kievan Russia. The career patterns of Soviet bureaucrats were often reminiscent of the old mestnichestvo system.

Chapter 7 The Treaties of Medieval Russia The purpose of this chapter is to present an overview of the treaties of medieval Russia.1 The peculiar nature of the medieval Russian polity, specifically the plurality of an ever changing number of semi-states, as well as their intriguing relationships with the Golden Horde, raises unusual questions and lends the topic a special scholarly appeal.

1. Defining the Topic The earliest known Russian treaties date from the 10th century, but it is only from the 14th century on that a sufficient number of texts have survived to allow more than just speculation or a few general statements. By the end of the 15th century, or at the latest by the beginning of the 16th century, a single centrally governed Russian state had emerged. The treaties concluded by the ruler of Muscovy, the Russian tsar, are part of the body of public international law which continues without a break until 1917, the end of the Russian Empire.2 After a short discussion of the earliest treaties, we shall focus therefore primarily on the 14th and 15th century, the period which corresponds to the West European middle ages. The current concept of an international treaty is closely allied to the concept of the sovereign state. Treaties are agreements between sovereign states; nowadays sovereign states may unite in setting up international organizations and such organizations may also appear as subjects of public international law and as parties to treaties. 1

2

The treaties of the Russian Empire are to be found in official publications, viz. Pamiatniki diplomaticheskikh snoshenii s derzhavami inostrannymi, published in S.Peterburg since 1851, and its successor Sbornik deistvuiushchikh traktatov, konventsii i soglashenii zakliuchennykh Rossiei s drugimi gosudarstvami, published in S.Peterburg since 1889. The latter series was continued with an amended title after the October Revolution. A semi-official publication of pre-revolutionary Russian treaties was Sobranie traktatov i konventsii, zakliuchennykh Rossiei s inostrannymi gosudarstvami, published by the leading Russian international law expert from the era, F.F. Martens, in S.Peterburg since 1874. An English language register of Soviet treaties from 1917 up to 1957 was published by R.M. Slusser & J. Triska, A Calendar of Soviet Treaties, 1917-1957, Stanford, 1959; this work was continued by G. Ginsburgs & R.M. Slusser, A Calendar of Soviet Treaties, 1958-1973, Alphen a/d Rijn, 1981. The first publication of most medieval Russian charters, including treaty texts, was in Drevniaia Rossiiskaia Vivliofika ili sobranie raznykh drevnikh sochinenii, S. Peterburg (1st ed.), 1773-1775; more accessible to most scholars will be the major 19th century republication in the first two volumes of Sobranie Gosudarstvennykh Gramot i Dogovorov, Vols.1-4, S.Peterburg, 1813-1826 (hereafter SGGD).

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This framework is not fully applicable in a medieval setting. If modern concepts are employed, one could say that sovereignty was usually fragmented in the middle ages and parcelled out among several authorities. Applying another modern concept anachronistically, one could define a medieval treaty as an agreement between public law parties. The difficulty then is that the public-private law dichotomy is sometimes meaningless in a medieval context, when for instance there is no distinction between the ‘private’ wealth of the ruler and the powers exercised by him over his territory. Also, we would not look upon a community of foreign merchants as a public law party. In medieval Russia, however, agreements in the form of treaties between ‘governments’ (generally ruling princes) and groups of foreign merchants are quite common and are clearly regarded as something very close to agreements between governments. A pragmatic (some would say opportunistic) approach offers the most convenient solution to the dilemma. If it looks like a treaty, if then and now it was and is regarded as a treaty, it will be included in this survey. Parenthetically, one might add that this approach is probably more acceptable now than it would have been a generation ago. We have grown accustomed to a certain dissolution of absolute sovereignty. It has not only been eroded by the ever increasing role of international and even supranational organizations, but we also observe a growing independence and assertiveness of lower range public law corporations. National states are seen to conclude agreements (sometimes even called treaties) with their own provinces or even cities; Russia herself offers a prime example (e.g. the treaty of 15 February 1994 with the Republic of Tatarstan,3 or the agreement between the prime ministers of Russia and Chechnia of 23 November 1996, concerning Chechnia, based on the Khasaviurt agreement of 31 August 1996 between the representative of the Russian president and the Chechen supreme commander4). Another definitional aspect concerns the material form: strictly speaking, a treaty is a bilateral (or multilateral) legal act (almost always in written form), by which the (‘sovereign’) parties create mutual rights and duties. In this chapter, the concept is extended to include situations created by more than one act, e.g. an exchange of letters. There are numerous examples among the documents considered in this chapter, of princes whose legal relationships were determined by documents which they addressed to each other and in which the mutual rights and duties were spelled out. Such letters then appear as each other’s complements. These situations have a parallel in private law in the contract concluded 3 4

Rossiiskaia Gazeta, 17 February 1994. Cf. F. Feldbrugge, “The Elections in Chechnia in the Framework of Russian Constitutional Law”, Review of Central and East European Law, 1997, No.1, 1-7, at 4.

The Treaties of Medieval Russia

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by separate acts of offer and acceptance. If, as often happened in the case of medieval documents, only one part of the set of letters has survived, almost no information has been lost and we may regard the surviving letter in a material sense as a treaty. To summarize, the presence of a treaty is presumed when: (a)

there appears to be a formalized agreement, i.e. capable of being reproduced; (b) concerning matters that can be regarded as belonging to public law; (c) between parties enjoying a certain measure of ‘sovereign’ power, who were, in particular, sufficiently independent of each other. Point (a) implies that the presence of a unilateral document (such as a letter) may be enough, provided it reflects the contents of an agreement. Point (b) excludes situations which concern predominantly private law relationships (e.g. princely brothers who settle their father’s private estate). Point (c) excludes situations where one party is fully subordinate to the other. Borderline cases will occur, as usual. Finally, a small number of documents is included in the survey, although their character is indisputably unilateral, because they may be equated to treaties on a functional level. What we have in mind are the charters (iarlyki), issued by the Tatar-Mongol rulers (more below). A related question concerns the external form of treaties: what formulas were used to begin and end treaties, what other aspects of the treaties were determined by a set formulary, etc.? This question, although related to the question of the material form, may more suitably be discussed when looking at the different categories of treaties.

2. The Earliest Times The first information on Russia is provided by foreign authors, mainly Greek and Arab historian and chroniclers.5 The principal domestic source is the Primary Chronicle (see the chapter on sources). Under its entries for the years 907, 912, 945 and 971, the Primary Chronicle contains what purport to be the texts of treaties concluded 5

Cf. E.A. Mel’nikova (ed.), Drevniaia Rus’ v svete zarubezhnykh istochnikov, Moskva, 2000; M.V. Bibikov, Vizantiiskie istochniki po istorii Drevnei Rusi i Kavkaza, S.Peterburg, 1999. A collection of English translations of relevant texts in S. Pushkarev (comp.), G. Vernadsky (senior ed.) & R.T. Fisher Jr. (man. ed.), A Source Book for Russian History from Early Times to 1017, Vol.1 “Early Times to the Late Seventeenth Century”, New Haven/London, 1972.

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between Byzantium and Russia. A large body of literature on these treaties exists, to which almost all leading Russian medievalists have contributed.6 In this chapter, only a few specific observations concerning aspects, relevant in connection with the subsequent Russian treaty practice, will be made. The 10th century Russian-Byzantine treaties were not the first of their kind, just the only ones that survived. The Primary Chronicle mentions several raids by Russians (Vikings) around the year 860. Byzantine sources add more detail. According to the chronicle written by the author known as the Continuator (actually the emperor Constantine VII Porphyrogenitus, 913-959), the emperor Basil I (867-886) concluded a peace treaty with the “Russes”, of which their acceptance of baptism was an important element.7 The relationship between the short treaty of 907 and the treaty of 9128 remains controversial. Most commentators are inclined to regard the two texts as fragments of a lost treaty text, connected with the hostilities between Byzantium and the Russians in the beginning of the 10th century. The parties to the 10th century treaties were the Byzantine emperors and various collectives of Russian (or Viking) chiefs, under the command of a prince. The fragmentary text of the 907 treaty seemed to have only Oleg, grand prince of Kiev, appearing on the Russian side. The 912 treaty mentioned fifteen persons, all with Scandinavian names, claiming to represent Oleg, grand prince of Kiev, and “all the serene and grand princes 6

7

A.N. Sakharov, Diplomatiia Drevnei Rusi. IX-pervaia polovina X v., Moskva, 1980, the most recent major Russian work on this subject, contains an extensive bibliography. Among later Russian works: S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika, Moskva, 1996, 4-59. The most comprehensive discussion by a Western author is I. Sorlin, “Les traités de Byzance avec la Russie au Xe siècle”, Cahiers du monde russe et soviétique, Vol.II (1961), 313-360 and 447-475. Text in PRP I, 3-70 (incl. modern Russian translation and bibliography) and in D. Kaiser (transl. & ed.), The Laws of Rus’–Tenth to Fifteenth Centuries, Salt Lake City, 1992, 1-13 (text and English translation).

8

Extensively on the raid of 860: P.V Kuznetsov, “Pokhod 860 g. na Konstantinopol’ i pervoe kreshchenie Rusi v srednevekovykh pis’mennykh istochnikakh”, L.V. Stoliarova (ed.), Drevneishie gosudarstva Vostochnoi Evropy 2000g.; Problemy istochnikovedeniia, Moskva, 2003, 3-172. Sakharov, op.cit., 47-82 (chapter 2), also discusses the raids and treaty (or treaties, there may have been more than one) extensively; pp.59-82 are devoted to a discussion of the treaty and its possible contents. See, also, Mel’nikova, op.cit., 102-111. All authors stress the connection between the raid and the treaty on the one hand, and the (first) baptism of Russia on the other. In the Primary Chronicle, the raids and the conversion of Olga (around the middle of the XIth century) are completely separate events.

On account of the Russians using the March calendar, the correct date of the treaty is generally regarded as 911, not 912.


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under his sway”.9 This suggests some kind of alliance of which the Kievan prince was the leader. This understanding is reinforced by the text of the 945 treaty which lists Ivar as the representative of Igor, grand prince of Kiev, and then twenty-three other names, each with the name of the person represented, followed by a list of “merchants”, also numbering twentythree.10 The 971 treaty was concluded on the Russian side by Sviatoslav, grand prince of Kiev, and by Sveinald; the latter was Sviatoslav’s mentor and commander-in-chief. The point to be noted here is that political relations in 10th century Kievan Russia had not yet coalesced into a clear-cut state structure in which the Kievan prince acted as the undisputed ruler. As could be expected, this is most obvious in the earliest treaty, of 912, where other princes appear as co-signatories and where the envoys state in the introductory sentences that they are acting “in accordance with the wishes and the commands of our grand princes”. As to the contents, the treaties of 907 and 971 are short and of limited interest from the legal point of view. The treaties of 912 and 945, referring to previous hostilities between the two parties, outline a legal regime for the predominantly commercial contracts. The texts of all four treaties pay considerable attention to the matter of form; each party makes clear that it binds itself in accordance with its own tradition.11 The general background of the 10th century treaties is well illuminated by the Primary Chronicle’s narrative. The conglomerate of Slavic tribes of the preceding centuries was gradually consolidating into more solid political structures. Mobile bands of Viking traders/warriors played a decisive role in the process of coagulation. Scandinavian chiefs or petty kings, accompanied by their Viking retinue, became russified princes within a few generations. It was under their command that the raids against Constantinople were organized. The ensuing treaties show that the members of the prince’s druzhina were still sufficiently independent and powerful to be included as co-signatories (see, also, the chapter on “Land Tenure, the Druzhina, and the Nature of Kievan Rus”). The rulers of Kiev acquired a 9

Of the 15 emissaries, five were also mentioned in 907 as Oleg’s representatives.

10

11

Nearly all principals and all representatives and merchants bear Scandinavian names; one emissary, Sverki, is appearing in person, i.e. for himself. Unlike most commentators, A.S. Korolev, in a recent study (Istoriia mezhdukniazheskikh otnoshenii na Rusi v 40-e-70-e gody X veka, Moskva, 1999, 30-36), regards the Russian delegation in 944 as multinational, embracing Slavic, Germanic, Celtic, Iranian and Finnish envoys.

On the form of the Russian-Byzantine treaties: S.M. Kashtanov, “O protsedure zakliucheniia dogovorov mezhdu Vizantiei i Rus’iu v X v.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse [Cherepnin Festschrift], Moskva, 1972, 209215.

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dominant position within the entire Russian commonwealth in this era. The contacts and treaties with Byzantium must be seen in this light. From Byzantine sources, we know that the Byzantine emperor did not regard his Russian counterparts as equal and fully respectably treaty partners, but as irregular freebooters who had to be pacified and bought off, as the Byzantines were accustomed to do with ‘barbarian’ invaders.

3. Periodization and Sources The first available treaty text after the 10th century treaties between Byzantium and the Kievans is a treaty which can be dated between 1189 and 119912 and which was concluded between Novgorod the Great (Velikii Novgorod, as opposed to Nizhnii Novgorod, the East Russian city on the Volga which was founded only in 1221) and Hanseatic partners.13 The text of the treaty itself refers to previous treaties between the same parties. The chronicles offer ample evidence of lively diplomatic traffic in the previous period, but no complete texts of treaties have survived. For instance, the Primary Chronicle contains the texts of an exchange of letters between Mstislav, the son of Vladimir Monomakh and prince of Novgorod at the time,14 and his father’s first cousin Oleg Sviatoslavich, prince of Chernigov, in 1096. Of even greater importance was the meeting of most of the leading princes the next year, in Liubech, resulting in a formal agreement concerning the division of Kievan Rus’ in a number of principalities. The Hypatian Chronicle includes the full text of a letter written in 1149 on behalf of Mstislav’s son Iziaslav, grand prince of Kiev, to his uncle Iurii Dolgorukii, the ancestor of the ruling dynasty of Muscovy.15 The grandfather of Russian historiography, V.I. Tatishchev (1686-1750), probably had access to treaty texts which have been lost since.16 12

13

E.A. Rybina, “O dvukh drevneishikh torgovykh dogovorakh Novgoroda”, V.L. Ianin (ed.), Novgorodskii Istoricheskii Sbornik, 3(13), Leningrad, 1989, 43-50, dates the treaty more precisely in 1191-1192.

GVNP, No.28; also in PRP II, 124-132.

He became grand prince of Kiev, like his father before him, in 1125.

14 15 16

PSRL II, 387; text and commentary in Pashuto, Vneshnaia politika, 153-155.

A great quantity of ancient documents was lost in the great fire in 1812 during the French occupation of Moscow. Iu.A. Limonov has attempted to reconstruct a treaty between Vladimir Monomakh and the Volga Bulgars from 1106, the text of which was apparently available to Tatishchev; Iu.A. Limonov, “Aktovo-pravovoe oformlenie vneshnepoliticheskikh otnoshenii Vladimiro-Suzdal’skoi Rusi s Volzhskoi Bolgariei (Opyt rekonstruktsii)”, A.P. Novosel’tsev (ed.), Drevneishie gosudarstva Vostochnoi Evropy. Materialy i issledovaniia 1991 god, Moskva, 1994, 259-264.


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The earlier evidence from the chronicles and the small number of surviving treaties from the 12th and 13th century are nevertheless in agreement with the more abundant evidence from the 14th and 15th century. The central theme of the internal Russian treaties, the treaties between the Russian princes, was and remained seniority, the subtle hierarchy existing among the princes and among their respective territories (see, also, the chapter on “The Elder Brother in Russia”). The Appendix to this chapter lists and categorizes more than 120 treaties, covering a period of three hundred years. The list does not claim completeness. As to periodization, it is usually convenient to break up a longer era into smaller segments. This is done by looking for significant differences, new developments, and these are often marked by prominent historical events. The danger of this approach is that differences and changes may receive more attention than continuity. In the matter of the Russian middle ages, the problem is aggravated by the fact that the leading Soviet authors worked in an atmosphere which was not free from politically imposed models. The result was often a rigid framework, agreeing with and reinforcing current Soviet values and concepts. In general terms, this would boil down to the following: (1)

(2)

(3)

Kievan Russia, with its apogee during the reign of the Kievan grand princes Vladimir I (St.Vladimir) and his son Iaroslav the Wise, and a second flowering under Iaroslav’s grandson Vladimir Monomakh (1113-1125): centralized power, greatness. The period of feudal fragmentation (feodal’naia razdroblennost’) or of the apanage principalities (udel’nye kniazhestva), with its nadir the fall of Kiev in 1240 and the imposition of the Mongol Yoke (Mongol’skoe igo): decline and disaster. The formation of a centralized Russian state around the Moscow grand prince, culminating in the rule of Ivan III the Great (14621505): return of central power and greatness.

The admittedly limited evidence from the treaties of the era concerned does not bear out the simplicity of this framework. There was not such a clear story of rise and fall, of success and disaster; numerous nuances should be made; there was more continuity than change.

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4. The Treaties between the Princes The treaties between the Russian princes constitute the most numerous group among the collection surveyed in this chapter, and within this group the vast majority is made up of treaties concluded by the grand prince of Moscow with other Russian princes. This can be explained in part by the fact that, for at least the latter half of the period under review, the Moscow grand prince was the most important and powerful ruler. There is a direct and unbroken connection between the grand princes of Moscow, the tsars, and the emperors. Ivan IV (the Terrible) solemnly assumed the title of tsar in 154717 and tsar Peter transformed Russia into an empire in 1721. The archives of the princes of Moscow were, therefore, the core out of which the Russian state archives grew and understandably the conditions for document survival were more favourable in Moscow than elsewhere. An additional reason for the preponderance of Moscow documents may be the deliberate destruction of treaties between other princes. The Moscow princes, in their ultimately successful struggle for supremacy, had an interest in doing away with anything that might upset their claims.18 For these reasons, the corpus of treaties between Russian princes, available to us, begins at a comparatively late moment. There can be no doubt, however, that the practice of concluding treaties among themselves was by no means new in the second half of the 14th century. We have referred above to several instances of treaties between 11th century Russian princes, detailed information about which has been provided by the chronicles.19 The treaties between Russian princes (mostly those of Tver’ and Moscow) and Novgorod are not discussed in this section, but under the general heading of Novgorod treaties. 17

18

19

His predecessors, notably his grandfather Ivan III, had already used the title occasionally. Assumption of the title, derived from the Latin Caesar, had been facilitated by the fall of Constantinople in 1454 and the disappearance of the Byzantine emperor. The standard work on the history of the archives of the princes of Moscow and connected archives is L.V. Cherepnin, Russkie feodal’nye arkhivy XIV-XV vekov, Part 1, Moscow/Leningrad, 1948, Part 2, Moscow, 1951 (hereafter: Cherepnin, Arkhivy I or II). V.A. Kuchkin, Dogovornye gramoty moskovskikh kniazei XIV veka. Vneshnepoliticheskie dogovory, Moskva, 2003, covers only five treaties (Moscow-Tver’, of 1318; Moscow-Novgorod, of 1371; Moscow-Lithuania, of 1375; Moscow-Riazan’, of 1381; and Moscow-Tver’, of 1399). This point was also made a century ago by V.I. Sergeevich, Drevnosti II, 150-162. See, also, S.V. Iushkov, Obshchestvenno-politicheskii stroi i pravo Kievskogo gosudarstva, Moskva, 1949, 330.


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Starshinstvo The treaties between the Russian princes of the Middle Ages cannot be understood properly without consideration of the starshinstvo principle. It is explained in detail in the chapter on “The Elder Brother in Russia”. Its underlying principle was that the right to rule was essentially a right of the ruling house. The individual right to rule was then apportioned according to rank and status of individual (male) members of the house. Precedence was determined first by generation (fathers and uncles before sons and nephews) and within the generation by age. Later succession principles such as substitution and primogeniture did not operate, at least not in principle. The seniority principle established (ideally) a hierarchy within the ruling family. This hierarchy corresponded to a hierarchy of cities/provinces: first Kiev, then Novgorod, Chernigov and others. The grand prince of Kiev was not automatically the ruler of Russia, but he was undoubtedly the first among otherwise equals. As the house of Rurik expanded, the substitution principle gradually asserted itself, in that branches of the family became established in particular provinces, which came to be regarded as their own. Of even greater importance was the fact that seniority or starshinstvo became an object for negotiation. The Treaties and Testaments of the Princes of Muscovy: Close Relatives The central legal instrument used by the grand princes of Moscow to build up their dominant position was the acceptance by other princes of the recognition of the prince of Moscow as their “elder brother”. This approach of course implied that the right to rule was not any longer viewed as dependent on the operation of a fixed principle, but as something that could be negotiated and freely disposed of. As a consequence of this new understanding, the ruler would also be free to appoint his own successor.20 The Moscow grand princes usually appointed their eldest sons to succeed and their wills would then instruct their other sons and surviving brothers to accept the successor as “elder brother”. The surviving collection of last wills of Moscow grand princes illustrates the process through which the grand prince appropriated the right to appoint his successor. In the oldest available document, the testament of Ivan Danilovich (Kalita), from around 1339, the private law character prevails. Ivan divided what he received from his father (his otchina) among his three sons, Semën, Ivan and Andrei, with some assets set aside for his wife and younger children. Semën is mentioned as the eldest (bol’shoi) and 20

A principle that also seems to apply informally to the presidents of the Russian Federation.

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is exhorted to act as protector (pechal’nik) of his mother and brothers and sisters, but otherwise the sons receive equal treatment.21 Some ten years later, however, around 1350-1351, when Semën was well installed as grand prince of Moscow, he concluded a compact with his brothers Ivan and Andrei in which the latter bound themselves to honour him as their father. This implied, among other things, that they would support him in war and that they would not conclude treaties with outsiders.22 When Semën died in 1353, his sons had all predeceased him without issue, and he left his possessions to his widow, without any mention of his successor.23 His brother Ivan who in fact succeeded him as grand prince of Moscow, wrote his last will in 1358, stating that he left his patrimony Moscow (otchinu svoiu Moskvu) to his sons Dmitrii and Ivan. 24 Again, the elder son, Dmitrii (Donskoi), succeeded as grand prince; the other brother, Ivan, died in 1364. In his last will of 1389, Dmitrii Donskoi again left “his patrimony Moscow” to his four sons, but the grand princely dignity to his eldest son Vasilii, instructing the younger sons to “honour and obey” their elder brother.25 When Vasilii died in 1425, he was survived only by his youngest son Vasilii the Blind (Temnyi) on whom again the grand princely dignity was conferred.26 After Vasilii the Blind, the practice solidified: the eldest son was made grand prince of Moscow and the younger brothers were told to obey and follow him, but they did receive, as in the past, their own principalities (udely, apanage principalities).27 The accession of Vasilii the Blind was the occasion, however, of a fierce family feud (see below). There exists a modest number of treaties between the grand prince of Moscow and one or more of his brothers.28 From a modern point of view, one could say that the private law element in these treaties was strong and sometimes dominant, where they mainly concerned the division of the 21

22

DDG, No.1, 7-11. English translation in R.C. Howes, The Testaments of the Grand Princes of Moscow, Ithaca, 1967.

DDG, No.2, 11-13.

DDG, No.3, 13-14.

DDG, No.4, 15-19. Ivan’s younger brother Andrei had been assigned various properties, among which was Serpukhov. He became the ancestor of the princes of SerpukhovBorovsk, the subjects of numerous treaties with their Moscow cousins.

DDG, No.12, 33-37.

DDG, No.21, 57-60.

23 24

25 26

27 28

See the testaments of Vasilii Vasil’evich Temnyi in 1461, DDG, No.61, 193-199, and of his son grand prince Ivan III Vasil’evich in 1504, DDG, No.89, 353-364. E.g. the treaty mentioned above, between grand prince Semën and his brothers Ivan and Andrei; also a treaty from 1472 between grand prince Ivan III and his brother Andrei, prince of Uglich, DDG, No.66, 214-216.


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paternal estate. The public law element resided in the stipulation that the younger brothers could exercise public powers in their apanage principalities, such as administering justice, and in a number of prohibitions; they were especially forbidden to engage in foreign relations and specifically to have relations with the Mongol overlords. The princely powers of the younger brothers were therefore strongly dependent on the agreement of the Moscow prince. In view of the very restricted ‘sovereignty’ of the younger brothers, their agreements with the Moscow prince can hardly be regarded as international treaties; they have not been included in the Appendix. Within the category of treaties between the grand princes of Moscow and other Russian princes, the largest group is formed by the treaties between the Moscow grand prince and his somewhat more distant relatives from the Moscow branch, i.e. descendants of the younger sons of Ivan Kalita (†1341): the princes of Serpukhov-Borovsk, Galich, Mozhaisk, Dmitrov, Zvenigorod, Verei, Belozero and Volotsk. These treaties document in detail how the Moscow prince effectively prevented the fragmentation of his power by severely restricting the powers of his cousins and other relatives as rulers of split-off principalities.29 An important and very informative sub-group is formed by the treaties from the period 1422-1436 in which a major dynastic crisis occurred and the new practice introduced by the Moscow grand princes was put to the test.30 Dmitrii Donskoi, in his will of 1389, to which we referred above, had appointed his eldest son Vasilii as grand prince, adding that the next son would receive Vasilii’s inheritance if the latter were to die (Vasilii was eighteen years old at the time and unmarried). When Vasilii died in 1425, only his youngest son, Vasilii the Blind (Temnyi), was alive, and ten years old. His eldest uncle, Iurii Dmitrievich, prince of Galich, claimed the throne, on the basis of his father’s (Dmitrii Donskoi’s) testament. At first, young Vasilii prevailed, through the support of the church, in the person of the Moscow metropolitan Fotii, and of the Lithuanian grand prince, his maternal grandfather, the formidable Vitovt. After the death of the latter two, the conflict erupted again and in 1431 the dispute was submitted to the khan of the Golden Horde, Ulug Mekhmet, still the titular over29 30

A thorough discussion of these treaties in Cherepnin, Arkhivy I, 31-45, 63-80.

Cf. DDG, Nos.12 (testament of Dmitrii Donskoi), 22 (testament of 1423 of his son, grand prince Vasilii Dmitrievich), 24 (treaty of 1428 between grand prince Vasilii Vasil’evich and Iurii Dmitrievich, prince of Galich and Zvenigorod), 27 (treaty of 1433 between grand prince Vasilii Vasil’evich and Vasilii Iaroslavich, prince of SerpukhovBorovsk), 29 (testament of Iurii Dmitrievich of Galich), 30-36 (treaties from 1433-1439 with a number of princes). See, also, Cherepnin, Arkhivy I, 100-128.

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lord of the Russian princes (more on this topic below). Vasilii’s emissary argued that Iurii’s claim rested on the tradition of the Russian princes, but that his principal referred to the khan’s good favour.31 Not surprisingly, Vasilii won the day. In 1433 Iurii briefly overran Moscow, assumed the grand princely dignity, and his nephew retired as apanage prince to Kolomna. Soon, however, Vasilii’s side grew in strength and he recaptured the Moscow throne, only to lose it again, early in the next year, when his army was defeated by Iurii’s. Iurii ruled as grand prince of Moscow until his death a few months later. He was succeeded by his son Vasilii Kosoi, who was unable to maintain himself, being deserted by his own brothers. Vasilii Temnyi returned and had Vasilii Kosoi blinded. The story was more or less replayed ten years later, when Vasilii Temnyi was taken prisoner by khan Ulug Mekhmet, who then offered the Moscow throne to Vasilii Kosoi’s younger brother, Dmitrii Iur’evich Shemiaka, prince of Galich, like his father. Next, the khan withdrew the offer and released Vasilii Temnyi. Civil war again broke out. Initially, the tide was against Vasilii, who was taken prisoner and blinded in revenge (hence, his surname Temnyi). When support for Shemiaka’s claim to the grand princely dignity dwindled, Vasilii was able to reassert himself in 1446.32 Excursion Concerning the Title of Grand Prince Originally, it was attached to the principality of Kiev and accordingly it moved around the various branches of the Rurikid dynasty. The first prince who apparently appropriated the title for his own branch was Mstislav Davidovich (†1230), prince of Smolensk and grandson of Rostislav; the latter, like his father Mstislav Harald (eldest son and successor of Vladimir Monomakh), had been grand prince of Kiev. The descendants of Mstislav Davidovich who ruled in Smolensk until the end of the 14th century styled themselves grand princes of Smolensk. The princes of Riazan’, who held out longer than any other branch of the Rurikids against their Moscow cousins, were the descendants of Sviatoslav II (†1076), grand prince of Kiev and son of Iaroslav the Wise. 31

32

The episode is recounted in detail by Karamzin, 2, V, col.141-156; see, also, R.O. Crummey, The Formation of Muscovy 1304-1613, London/New York, 1987, 68-71.

One treaty survives, that between Dmitrii Shemiaka and two princes of Suzdal’, of 1445, in which Shemiaka advertised himself as plain prince in the preamble, but referred later on to his grand princely dignity and also used the grand princely formula “By the grace of God”, DDG, No.40, 119-121. Several other treaties of the period are also directly linked with the Shemiaka episode, e.g. DDG, No.52, 155-160, between grand prince Vasilii Vasil’evich and prince Ivan Vasil’evich Gorbatyi of Suzdal’, and DDG, No.48, 146-148, between grand prince Vasilii Vasil’evich and his cousin Ivan Andreevich, prince of Mozhaisk. Cf. Cherepnin, Arkhivy I, 128-150.


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The sons of Ingvar Igorevich (†1235), prince of Riazan’, were the first to use the title of grand prince of Riazan’. Ivan IV Ivanovich was the last ruling grand prince of Riazan’; he died in exile in 1533 or 1534. The other grand princely titles were all derived in some way from the grand princely dignity of Vladimir (on the Kliazma). Kiev had already lost much of its former glory and power in the 12th century, although the throne of Kiev remained a fiercely contested prize among the various branches of the Rurikid house. After the death of the aforementioned Rostislav, grand prince of Kiev and prince of Smolensk (in 1168), Kiev was sacked and destroyed by an alliance of Russian princes in the following years. Andrei Bogoliubskii, prince of Vladimir and the most powerful among the Russian princes of his day, gave Kiev to his brother Gleb and styled himself grand prince of Vladimir from this time on, although the (less important) prince who happened to rule in Kiev would still enjoy the title of grand prince. The last prince to bear the Kievan title was Mikhail Vsevolodovich, of the branch of the princes of Chernigov (descendants of the above-mentioned Sviatoslav II), who was killed by the Mongols in 1246. Andrei Bogoliubskii was succeeded as grand prince of Vladimir by his brothers Mikhail and then Vsevolod III the ‘Great Nest’ (Bol’shoe Gnezdo). The latter’s son Iaroslav II was succeeded as grand prince of Vladimir by five of his sons successively: Aleksandr Nevskii, Andrei, Mikhail, Iaroslav and Vasilii. Aleksandr, Andrei and Iaroslav became the ancestors of the dynasties of respectively Moscow, Suzdal’ (later on Nizhnii Novgorod) and Tver’. The Vladimir title occasionally reverted to the Tver’ branch; but, in the end, the descendants of Aleksandr Nevskii were successful in claiming the title exclusively for the princes of Moscow, the apanage of Aleksandr Nevskii’s youngest son Daniil. The latter’s grandson Semën was the first to adopt the style of grand prince of Moscow and Vladimir. There were only a few grand princes of Nizhnii Novgorod, but the grand princes of Tver’ were major rivals of the Moscow princes until the end of Tver’ independence in 1485.33 A related, but separate issue is the origin of the title of grand prince of all Russia (vseia Rusi). It had been used in a descriptive sense by the chroniclers in referring to Kievan princes, such as Vladimir Monomakh (†1125), who were in fact rulers of all Russia. Later on, it became the most important title of the Moscow grand princes, starting from Aleksandr Nevskii.34 33

See, also, A. Poppe, “Words that serve the authority. On the title of ‘Grand Prince’

34

in Kievan Rus”, Acta Poloniae historica, 60 (1989), 159-184.

See Kh. Lovmians’kii, “Russko-litovskie otnosheniia v XIV–XV vv.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse [Cherepnin Collection], Moskva, 1972, 269-275, who also refers to older literature on the subject. The early

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The ‘house pacts’ within the clan of Ivan Kalita’s descendants, contained a package of standard conditions. The core of it was always the recognition of the status of elder brother. There were several variations on this theme, each indicating more precisely the character of the relationship. Sometimes one party recognized the other as elder brother and father,35 or simply as father.36 Occasionally, the treaty outlined a more complex hierarchy, where several princes were involved. The treaty of 1445, between Dmitrii Iur’evich Shemiaka of Galich, when he was actually occupying the grand princely throne, and the princes of Suzdal’, distinguished between fathers and sons, elder, younger, and equal brothers, and uncles and nephews.37 In this connection, it is worth noting that fathers (and grandfathers) and sons did not conclude treaties among each other.38 The general logic, according to the old family hierarchy of the Rurikids, was that older generations took precedence over younger ones, so that uncles could take the place of fathers. This system was superseded then by the new Moscow approach, where a more prominent position would overrule the family relationship. As a result, an uncle would then address his nephew as elder brother in certain cases.39 Once the Moscow grand prince had established his right to appoint his successor (usually his eldest son), he made sure to insert his successor, or sometimes his heirs in general, as co-signatories, so that the other party would also have to recognize the grand prince’s successors as elder brothers. The basic elements of the dependent relationship were the following. The junior party bound himself to be loyal to his senior, which included a duty to inform about anything of importance to the latter. He was obliged

35 36 37 38

39

grand princes of Kiev also used the title of kagan, borrowed from the Khazars; cf. A.V. Novosel’tsev, “K voprosu ob odnom iz drevneishikh titulov russkogo kniazia”, Istoriia SSSR, 1982, No.4; also in T.M. Kalinina (ed.), Drevneishie gosudarstva Vostochnoi Evropy 1998 g. [Novosel’tsev memorial volume], Moskva, 2000, 367-379.

E.g. DDG, No.27.

E.g. DDG, No.40.

Ibidem.

Cf. Sergeevich, Drevnosti II, 152-153. A possible exception to this implicit rule would be a treaty between a maternal grandfather and his grandson. There are no extant examples of such treaties, but in a treaty of 1427 between Boris Aleksandrovich of Tver’ and the brother of his paternal grandmother, grand prince Vitovt of Lithuania, the latter is referred to as Boris’ grandfather; DDG, No.23, 62-63.

E.g. the treaty between grand prince Vasilii Vasil’evich and his uncle Iurii Dmitrievich of Galich, DDG, No.24, 63-67. Extensively on this entire topic Sergeevich, Drevnosti II, 181-200; Sergeevich, as mentioned, regarded starshinstvo as a matter of family etiquette and linguistic practice and rejected the notion that it had any meaning beyond that.


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to support his senior in his external affairs, which might also involve military duties. Such duties could be more or less onerous; sometimes the junior prince was only obliged to take part in campaigns if the elder brother also participated in person, Generally the junior partner was forbidden to engage in foreign affairs (ne kanchivati, not to conclude agreements), but there were exceptions; in some cases, he was allowed to conclude treaties, but not without the senior’s knowledge. In a few cases, the senior party also had to inform the junior party of foreign policy activities. Relations with the Golden Horde were nearly always the exclusive domain of the senior party. Most treaties paid attention to internal administrative activities of both parties, such as the levying of various taxes and the administration of justice, and the effects of such activities in the principality of the other party. Another highly significant matter was the freedom allowed to the prince’s boyars: were they granted the possibility of changing their allegiance? The significance of this question lay in the importance for the prince of the support of his boyars in maintaining his position. The Treaties of the Princes of Muscovy: Distant Relatives A smaller part of the collection of Moscow treaties concerns relations with other Russian princes, i.e. princes belonging to the Rurikid house, but not to the Moscow branch. The collection contains six treaties with the grand princes of Tver’, five with the grand princes of Riazan’, and one with the prince of Suzdal’.40 The circumstances surrounding the conclusion of these treaties differed from each other, but in a general way one might say that they displayed, as could be expected, a more equal status between the parties than the treaties concluded by the Moscow grand prince with his closer relatives. In the cases of the Tver’ and Riazan’ treaties, the sequence in time shows an increasing loss of independence of the respective prince. The earliest treaty in this category, of 1375, between grand princes Mikhail Aleksandrovich of Tver’ and Dmitrii Ivanovich Donskoi of Moscow, was concluded after the military defeat of Tver’ at a very precarious moment of Dmitrii Donskoi’s rule. After pillaging Moscow, Tokhtamysh, the khan of the Golden Horde, continued raiding Russia. Mikhail of Tver’ had petitioned the khan for granting him the grand principality of Vladimir (the major title of the Moscow grand prince) and had started hostilities against Dmitrii Donskoi. A grand alliance of Russian princes, led by the Moscow grand prince, was then formed which forced Mikhail of Tver’ into submission.41 In the resulting treaty,42 he recognized Dmitrii Donskoi 40 41 42

Cf. Cherepnin, Arkhivy I, 51-58, 80-86, 191-205.

Cf. Karamzin, Book 2, Part 5, col.21-24; Crummey, op.cit.,57-58.

DDG, No.9, 25-28.

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as his elder brother and accepted the duty “to mount his horse” (sesti na kon’) together with the Moscow prince, i.e. to support him in arms. Most other obligations, however, were mutual. He was not forbidden, as was customary in treaties which the Moscow prince concluded with other princes, to negotiate with other powers or to have relations with the Golden Horde.43 He did promise not to accept the Moscow principality from the hands of the khan, but the Moscow prince promised likewise with regard to the Tver’ principality. The following Moscow-Tver’ treaty, of 1396, is probably most typical as an example of a treaty between equals. The two grand princes recognized each other simply as brothers. The Moscow prince promised to cancel his agreement with the Lithuanian grand prince Vitovt; the Tver’ prince was allowed full freedom in his relations with the Horde (k Orde put’ chist); otherwise the conditions of the treaty were symmetrical.44 A century later, in 1485, the situation had changed completely. Most of the Russian principalities had been brought under Moscow’s control and Tver’ was surrounded by Moscow territory. The grand prince of Tver’, Mikhail Borisovich, was forced to conclude a treaty which did not quite reduce him to the status of a Moscow apanage prince (he was, for instance, still allowed to negotiate with the Golden Horde, but only in consultation with Moscow), but effectively deprived him of all freedom of action.45 The Treaties between Moscow and Lithuania Very few foreign treaties of the grand princes of Moscow have survived.46 All three of them are with the rulers of Lithuania. The treaty of 1371 between Olgerd of Lithuania and Dmitrii Donskoi was closely connected with the struggle for Russian hegemony between the grand princes of Moscow and Tver’, of which the treaties of 1375 and 1396 between these two gentlemen, mentioned in the preceding section, were also an expression. The brief Russian-Lithuanian peace treaty was,

43 44

Cherepnin, Arkhivy I, 53, thinks otherwise, because the treaty required consultation (duma); it seems to me that the duty to consult in this case was also mutual.

45

DDG, No.15, 40-43; cf. Cherepnin, Arkhivy I, 85-86.

46

DDG, No.79, 295-301; cf. Cherepnin, Arkhivy I, 198-199. Later on, in the same year, Mikhail of Tver’ was forced into exile and Tver’ became part of the Muscovy state; cf. Crummey, op.cit., 91.

Cherepnin, Arkhivy I, 49, suggests that at least a number of Russian-Lithuanian treaties from the period concerned were lost (carried off) during the Polish occupation of Moscow in 1611-1612 in the Time of Troubles.


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from the Moscow point of view, an attempt to neutralize the powerful Lithuanian state in the conflict with Tver’.47 The treaty of 1449 with the Lithuanian grand prince and Polish king Kazimir is to be situated in the struggle between Vasilii Vasil’evich of Moscow and his cousin Dmitrii Iur’evich Shemiaka of Galich over the grand princely dignity (discussed above).48 It was imperative for the Moscow prince to keep the ruler of Poland and Lithuania out of the internal Russian conflict; certain concessions were therefore made (e.g. the grand princes of Riazan’ were allowed to serve the Polish king, i.e. to enter into some kind of feudal relationship with the latter). The background of the 1494 treaty between Aleksandr Kazimirovich of Lithuania and Ivan III Vasil’evich of Moscow was the completion of the process of gathering all the Russian principalities under Moscow’s rule. At that moment only Riazan’ and the city of Pskov still maintained a measure of precarious independence. The 1494 treaty made clear that Riazan’ had moved to Moscow’s sphere of influence.49

5. Princely Treaties, not involving Moscow The survival of medieval Russian treaties has been determined above all by their inclusion in the archives of the Moscow grand prince. The relatively modest number of available treaties in which Moscow was not involved as a party gives an indication of the contents of what must have been a much more substantial body of texts. Smolensk Treaties The four Smolensk treaties constitute a special category.50 As mentioned, Smolensk had stayed outside the mainstream of Russian medieval history, being closely allied with and in fact subject to the grand prince of Lithuania (and king of Poland, after the Polish-Lithuanian union in 1386). The subordinate position of the Smolensk prince is evidenced by the treaty of 1386 between Iurii Sviatoslavich, grand prince of Smolensk, and king Wladyslaw Jagiello of Poland and his brother prince Svidrigailo of Lithuania.51 Although the conditions of the treaty were similar to those 47

48

DDG, No.6, 21-22. The grand prince Sviatoslav of Smolensk acted as a co-signatory, associated with the Lithuanian prince. Cf. Cherepnin, Arkhivy I, 45-49. All three Lithuanian treaties make clear that Smolensk and its princes were subject to the Lithuanian prince, and not to Moscow.

DDG, No.53, 160-161.

DDG, No.83, 329-332. Cf. Cherepnin, Arkhivy I, 205-207.

Cf. L.V. Alekseev, Smolenskaia zemlia v IX-XII vv., Moskva, 1980, 25-29.

M.M. Peshchak (ed.), Hramoty XIV st., Kiev, 1974, 69-71.

49 50 51

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found in comparable Russian treaties from the same era, the general style of the text is different; there is no recognition of the dominant party as elder brother. The other three Smolensk treaties were with Riga. The first two, with Riga and Visby (“Gothic Coast”), of 1229 and of a later date sometime between 1230 and 1270, are not only very early texts, compared with the bulk of Russian princely treaties, but are also unusual on account of their contents. They provide a kind of short code of law, applicable to Smolensk subjects and to the German citizens of Riga and Visby in their commercial dealings. The texts are of great interest for Russian legal history, because they form a link between the earliest Russian code of the Russkaia Pravda and later general codifications, such as the Court Charter of Pskov (Pskovskaia Sudnaia Gramota); see, also, the chapter on the Russkaia Pravda. A short treaty from between 1330 and 1359 between Ivan Aleksandrovich of Smolensk and Riga confirmed an earlier treaty, concluded by his grandfather, and other “old charters”.52 One could associate to the small group of Smolensk treaties a treaty between the Lithuanian grand prince Vitovt and the city of Riga of 1399, in which the prince informed Riga that the city of Polotsk had agreed with him that the citizens of Riga would receive the usual favourable treatment.53 Polotsk, an important principality in the early period of Kievan Russia, was even more marginal in the Russian middle ages than Smolensk, from the Russian point of view. It was permanently under the control of Western powers, such as Lithuania or Poland. A trade agreement between Polotsk and Riga of 1478 renewed the provisions of an earlier (unknown) agreement, and was generally along the lines of other commercial treaties between Baltic cities and Russian partners.54 Other Princely Treaties The remaining princely treaties are, inevitably, a mixed bag. A treaty of around 1483 between grand prince Mikhail Borisovich of Tver’ and the Polish king and Lithuanian grand prince Kazimir is connected with the 1485 treaty between Tver’ and Moscow.55 Prince Mikhail made a 52 53 54

55

SGGD, Vol.2 No.8, 1011.

Peshchak, Hramoty, 139-140.

A.L. Khoroshkevich (ed.), Polotskie gramoty XIII-nachala XVI vv., Moskva, 1978, No.171, 69-76. See, also, A.L. Khoroshkevich, “Russkie gramoty 60-70-ykh godov XV v. iz byvshego Rizhskogo gorodskogo arkhiva”, Arkheograficheskii Ezhegodnik za 1965 g., Moskva, 1966, 325-341.

DDG [no number], 483-383.


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last desperate attempt in 1483 to break out of Moscow’s encirclement of his principality by means of an alliance with the Polish/Lithuanian king. Most of the other treaties in this group were also between various Russian princes and the Lithuanian grand prince and were usually an expression of the policy to create a counterweight against Moscow’s growing preponderance.56 The two treaties of Boris of Tver’, whose paternal grandmother was a sister of the Lithuanian grand prince Vitovt, were based on a more or less formal equality between the parties; in the other treaties the princes concerned requested (through a chelobitie) the Polish/ Lithuanian king to be admitted to his service. A somewhat obscure treaty of 1366 between a Volynian prince Dmitrii and the Polish king fixed the border of Dmitrii’s territory around Vladimir-Volynsk.57 A treaty of 1445 between Dmitrii Iur’evich Shemiaka of Galich and the brothers Vasilii and Fedor Iur’evich of Suzdal’ was connected with Shemiaka’s struggle with his cousin Vasilii Vasil’evich, grand prince of Moscow, for the Moscow throne.58 The treaty of 1461 between Ivan Andreevich of Mozhaisk and Ivan Vasil’evich of Serpukhov-Borovsk was concluded in Lithuania, where both princes were in exile.59 They were distantly related, from different cadet branches of the Moscow ruling house, and had both lost their Russian possessions. They agreed to close ranks in their conflict with their cousin Vasilii Vasil’evich, the Moscow grand prince. In 1496, the last remaining independent prince, the grand prince of Riazan’ Ivan Vasil’evich, concluded a treaty with his younger brother Fedor.60 The treaty was very much along the line of similar treaties within the Moscow dynasty. The younger brother promised to support his elder brother, not to engage independently in foreign relations, and not to claim the throne of Riazan’ ahead of Ivan’s future sons (in the event a son Ivan was born in the same year, the last prince of Riazan’). If Ivan were to die childless, Fedor was to succeed. 56

57

DDG, No.23, 62-63 (Boris Aleksandrovich of Tver’, 1427); No.25, 67-68 (Ivan Fedorovich of Riazan’, 1430); No.26, 68-69 (Ivan Vladimirovich of Pronsk, 1442); No.39, 117-118 (Fedor L’vovich of Novosil’ and Odoev, 1442); No.54, 163-164 (Boris Aleksandrovich of Tver’, 1449); No.60, 192-193 (Ivan Iur’evich of Novosil’ and Odoev, 1459).

58

Peshchak, Hramoty, 38-39. Dmitrii, who styled himself grand prince, is perhaps the son of Andrei Iur’evich, prince of Volynia, one of the sons of Iurii Danilovich, king of Galicia.

DDG, No.40, 119-121.

DDG, No.62, 199-201.

59 60

DDG, No.84, 332-341.

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6. The Treaties of the Russian Cities The pre-revolutionary historian D’iakonov already drew attention to the existence of treaties between Russian princes and cities in Kievan times (see, on this topic, also the chapter on popular assemblies).61 The chronicles contain numerous references to formal agreements between such parties, although not a single text has survived. The most common type was the agreement in which a particular city accepted a particular member of the Rurikid dynasty as its prince. Such agreements were closely connected with the rotation system, based on seniority (starshinstvo), according to which princes would move to more important cities once a vacancy would occur (see the chapter on the “Elder Brother”). The practice of inviting and dismissing princes survived in subsequent centuries only in a few cities, notably Novgorod and Pskov, and it will be more practical to discuss the topic first within the Novgorod context. The Treaties of Novgorod the Great Before looking in more detail at the treaties concluded by the city of Novgorod, a few general observations concerning Novgorod’s place in medieval Russia are appropriate, in addition to what has been said in the chapter on the Skra of Novgorod. During the period of the early Kievan rulers, there was a certain bipolarity involving Kiev and Novgorod, to the extent that the latter city appeared as the alternative centre of power in Kievan Russia. According to the half-legendary narrative of the Primary Chronicle, it was the inhabitants of Novgorod who had invited Rurik to be their prince and that is where he established his capital. Two of his boyars, Askold and Dir, wandered south and settled in Kiev. Rurik’s successor, Oleg, unseated and killed them as usurpers, because they were not of princely stock; Oleg then set up his headquarters in Kiev. Novgorod remained the second most important place and the ranking prince after the prince who ruled in Kiev usually acted as resident prince in Kiev. The two most famous grand princes from the Kievan era, St.Vladimir and his son Iaroslav the Wise, sat in Novgorod before moving to Kiev. With the waning of the importance of Kiev in the second half of the 11th century and its eventual annihilation by the Mongols in 1240, Novgorod, the only major medieval Russian city that was never occupied by the Mongols, managed to retain and even strengthen its former position. Its flowering was also connected with changes in the flow of European trade. Novgorod’s wealth and power rested on its location in the northwestern corner of medieval Russia and its access to the Baltic Sea. It was 61

D’iakonov, 31-33.


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the principal point of export of timber, honey, wax and furs, all of them vital goods for the societies of medieval Western Europe. The change in trade patterns, favourable to Novgorod, was accompanied by political developments which were unique to Novgorod. Early Kievan Russia can be regarded as a confederation of principalities, themselves often based on older tribal divisions among the Eastern Slavs, and each of them centred around a principal city. The entire complex was held together by the family ties between the princes and the hierarchy within the ruling house. A strong and efficient ruler in Kiev, the undisputed capital, would be able to infuse a considerable degree of unity into the whole. Within the individual city-states of Kievan Russia, the prince did not rule as an autocrat. He was after all not a permanent fixture, the successor of his father and to be succeeded by his eldest son; he had received the principality as an apanage. Once the flow of events would offer him a better deal, he would leave his residence for a wealthier and more powerful city. The permanent element in the principality was the popular assembly, the veche. Usually, the veche would be dominated by the higher strata of society, the zhit’i liudi, as they were called in Novgorod. The Russian chronicles offer numerous references to such assemblies in Novgorod and other places, where they appeared actively involved in political affairs and negotiating with their own and other princes. In the course of time, the balance shifted in favour of the princes; the erosion of the seniority principle (described in the chapter on the “Elder Brother”) gradually changed the position of the prince as a kind of temporary governor and military commander into that of a permanent ruler, governing by virtue of the ordinary rules of succession. Only in Novgorod did developments run in the opposite direction: as the power of Novgorod grew, the power of its prince weakened. When there was a vacancy, Novgorod would invite a prince and conclude an agreement with him. If the city did not get on with its prince, it would dismiss him. It would not be unreasonable to ask why Novgorod needed a prince at all. The practical answer was probably that maintenance of the territorially huge empire of Novgorod (its northern possessions stretched into Siberia) demanded an effective military force and somebody to command it. A prince would have to satisfy both requirements, in other words, he would normally bring some troops of his own (along with Novgorod forces) and he would have to be a successful captain. Additionally, there certainly were ideological or religious objections against having a state without a prince. The exclusive right to rule residing in the house of Rurik would be an important part of this outlook. The internal government of Novgorod is discussed in the chapter on the Skra of Novgorod. Its immediate neighbour in Russia was the principal-

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ity of Tver’. In later years, Novgorod was of course ever more involved with the expanding realm of the Moscow grand prince. Its Western neighbours were numerous, not only the major powers of Lithuania and Poland, but also smaller Baltic entities: the Teutonic Order, the archbishopric of Riga, the bishoprics of Derpt (Dorpat, Iur’ev, Tartu), Oesel, and Kurland, and the Hanseatic cities of Riga, Revel (Reval, Tallin, Kolyvan’) and Derpt. In the treaties reviewed in this chapter, the bishops of Riga, Oesel and Kurland rarely appear as parties. Novgorod’s treaty practice reflected its more cosmopolitan location and involved also more distant Baltic powers: Sweden, Denmark, and the Hanseatic League.62 Novgorod-Tver’ Treaties Of the Russian treaties concluded by Novgorod, the largest contingent is understandably with its immediate Eastern neighbour, the grand prince of Tver’. This contingent may be subdivided into an early group of three treaties with Iaroslav Iaroslavich of Tver’,63 a larger group of treaties with the latter’s son, Mikhail Iaroslavich,64 and a more disparate group of later treaties.65 After the death of Aleksandr Nevskii, grand prince of Vladimir and the most powerful Russian prince of his time, in 1263, the citizens of Novgorod had refused to accept his son Dmitrii as their prince and had invited a younger brother of Aleksandr, Iaroslav, to be their prince. Iaroslav was the prince of Tver’ and the ancestor of the sub-dynasty of the princes of Tver’. He was also, in accordance with the rules of starshinstvo, grand prince of Vladimir, after the death of his older brothers Aleksandr and Andrei. This explains why the three treaties with Novgorod (of 1264, 1266 and 1270) show Iaroslav accepting obligations with regard to his own volost’ (i.e. Tver’) and the “land of Suzdal’ (i.e. Vladimir). The treaties set the tone for the series of treaties concluded by Novgorod with later Tver’ princes, although the texts of the treaties with Iaroslav Iaroslavich make it quite clear that they only continue an old and traditional pattern. They refer to previous treaties concluded with Iaroslav’s father Iaroslav Vsevolodovich, grand prince of Vladimir, and more distant ancestors. The 1270 treaty refers in passing to the Mongol overlordship by stipulating that the merchants are free to engage in trade 62

63

Generally on Novgorod treaties: S.M. Kashtanov, Iz istorii russkogo srednevekovogo istochnika, Moskva, 1996, 58-66.

GVNP, Nos. 1-3, pp.9-13.

GVNP, Nos.4-13, pp.13-26.

GVNP, Nos.14-15, 17-18, 20, pp.26-30, 32-34, 36-38.

64 65


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in the land of Suzdal’, according to the tsar’s charter (po tsesareve gramote), the tsar being the Mongol khan.66 The first treaties between Novgorod and Mikhail Iaroslavich of Tver’ date from 1296/1301 and were devoted to an ad hoc co-operation agreement.67 As was often the case, the treaty consisted of an exchange of letters in which the parties outlined their commitments and claims. The two texts are accordingly quite divergent. The general background is nearly always the same: the incessant struggle of the North Russian princes for hegemony. After the Mongol conquest of Russia, which started with the taking of Riazan’ in 1237, the southern half of what used to be Kievan Russia remained for a long time in a state of chaos and stopped playing a significant role in Russian history. In the northern half of the country, the major prize was the grand princely dignity of Vladimir, which yielded the incumbent the leading position among the Russian princes. The appointment was in the hands of the khan of the Golden Horde; during the first century of Mongol suzerainty, a perpetual coming and going of princely supplicants could be observed at the mobile Mongol headquarters, located somewhere on the East Russian or West Siberian steppe. Novgorod itself was a not insignificant player in this game, because it used its unique freedom to select its own prince as an instrument to extract the best deal. For a prince, being adopted by Novgorod was attractive on account of the city’s wealth. A set of treaties from the period 1304-1308 between Novgorod and Mikhail Iaroslavich of Tver’ outlined the relationships between the parties and elaborated on the provisions of the earlier treaties between the two parties.68 All of them included a reference to the trading freedom of the “German Court”, the Hanseatic colony within Novgorod (see the chapter on the Skra of Novgorod). Although Mikhail Iaroslavich of Tver’ had officially been installed as prince of Novgorod in 1308, war broke out between him and Novgorod in 1312. It lasted for several years and various attempts at making peace were made, with final success in 1318.69 Prince Mikhail was killed the next 66

67

On the three treaties with Iaroslav Iaroslavich of Tver’, Cherepnin, Arkhivy I, 254266; see, also, PRP II, 133-159 (text and comments).

GVNP, Nos.4-5, pp.13-15; cf. Cherepnin, Arkhivy I, 267-270.

GVNP, Nos.6-10, pp.15-22; cf. Cherepnin, Arkhivy I, 270-282. No.8 constitutes an addition to No.7.

GVNP, Nos.11-13, pp.22-26; cf. Cherepnin, Arkhivy I, 282-299. No.13 also included the Moscow grand prince Iurii Danilovich as a party; the text is defective and has been tentatively reconstructed by Cherepnin, Arkhivy I, 291-293. The curious political background of the three-cornered treaty is discussed by Cherepnin, 293-296, who suggests that the explanation must be sought in Mongol interference in the negotiations.

68 69

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year during his visit to the Horde, a not uncommon fate for a medieval Russian prince. Later treaties with Tver’ were connected with the ups-and-downs in the struggle of Tver’ with Moscow; the last Novgorod-Tver’ treaty of 1446-1447 was between Boris Aleksandrovich and the city.70 Novgorod-Moscow Treaties The grand prince of Moscow appeared for the first time in a treaty with Novgorod in 1318/1319, together with the grand prince of Tver’.71 The next Moscow-Novgorod treaty dates from 1371-1372.72 It was a treaty of mutual aid, directed against a possible attack on either party by Lithuania or Tver’, or, in the case of Novgorod, by the “Germans” (the Teutonic Order). Obviously, Moscow was not in serious danger of German aggression. Along with the Moscow grand prince Dmitrii Ivanovich Donskoi, his cousin Vladimir Andreevich of Serpukhov was included as a party. Dmitrii Donskoi only had very young children in 1371 and his cousin would be the probable successor at that time. The peace treaty between Novgorod and Vasilii Temnyi of 143573 was connected with the dynastic difficulties which beset Moscow at that moment, when the young Moscow grand prince Vasilii Vasil’evich was involved in a struggle with his first cousins Vasilii Kosoi and Dmitrii Shemiaka. The so-called Iazhelbitsy peace treaty of 1456 already reflected the growing preponderance of Moscow; the Novgorod veche was deprived of its right to make independent decisions (A vechnym gramatam ne byti.) and Novgorod was forced to make various financial and territorial concessions.74 The Iazhelbitsy treaty was imposed on Novgorod under a severe military threat. Fifteen years later, in 1471, it came to actual hostilities. The army of Novgorod was beaten on the Shelon’ river and a new peace treaty was concluded (the Korostyn’ treaty).75 In a wording slightly less favourable to Novgorod, the provisions of the Iazhelbitsy treaty were

70 71

GVNP, Nos.14, 15, 17, 18, 20, pp.26-30, 32-34, 36-38.

GVNP No.13, see above; Cherepnin, 293, believes 1317 is the correct date.

72 73 74 75

GVNP, No.16, 31.

GVNP, No.19, 34-36.

GVNP, No.22/23, 39-43 (Novgorod and Moscow copies), and also GVNP No.24, 4344, on the implementation of the Iazhelbitsy treaty.

GVNP, No.26/27, 45-51; see, also, PRP II, 251-259 and commentary on 267-272, and Cherepnin, Arkhivy I, 369-373.


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repeated. The end of Novgorod independence was near, however. In 1478, Ivan III fully incorporated Novgorod in the Muscovy state.76 Novgorod Treaties with Foreign Rulers The Novgorod Chronicle, under the year 1323, reports the conclusion of an “everlasting peace” with the king of Sweden. The available Russian text,77 names this prince as Manush Orikovich—Magnus V Eriksson, born in 1316, who became king of Sweden in 1319 (succeeding his uncle Birger II) and of Norway in the same year (succeeding his maternal grandfather Haakon V). The treaty is mainly about the regulation of borders. Along with the usual Novgorod signatories (the mayor and the tysiatskii), grand prince Iurii is mentioned; this is none other than the Moscow grand prince Iurii III, elder brother of Ivan Kalita, who was also serving as prince of Novgorod at the time. The treaty did not contain a reference, as was often the case, to previous similar treaties; however, the Chronicle states that the treaty was concluded “on the old terms” (po staroi poshline). A second treaty with Magnus V Eriksson, concluded three years later, in 1326, contained a more comprehensive treatment of mutual relations.78 Although Magnus is called the king of Norway, Sweden and the Goths in the treaty, the remainder of the text refers only to the kingdom of Norway. Three treaties with the grand princes of Lithuania are of a later date and may be regarded as episodes in Novgorod’s ultimately unsuccessful balancing act between the territorial appetites of its western neighbours and the grand princes of Moscow. The first treaty, of 1431, with Svidrigailo of Lithuania, has survived only in very defective form; Cherepnin has attempted a reconstruction.79 It appears to be primarily a trade agreement. The second agreement, to be dated between 1440 and 1447, with the Lithuanian prince Kazimir, was of a similar nature.80 The last treaty, of 1470/1471, with Kazimir IV of Poland and Lithuania, must be seen as a last desperate attempt of Novgorod to ward off the imminent annexation by Moscow.81 The treaty was apparently never signed and the draft fell into the hands of the Moscow grand prince, 76

77

Cf. Karamzin, Book VI, Ch.3, col.78-83. GVNP, No.38, 67-68. A Latin text is extant, but not available to me.

78

79

GVNP, No.39, 69-70; parallel text in Latin. See, also, I.P. Shaskol’skii, “Dogovory Novgoroda s Norvegiei”, Istoricheskie Zapiski, 1945, Vol.14, 45-61 and “Russko-Norvezhskii dogovor”, Skandinavskii Sbornik, Vyp.15, Tallin, 1976, 63-72.

GVNP, No.63, 105-106; Cherepnin, Arkhivy I, 323-333.

GVNP, No.70, 115-116; Cherepnin, Arkhivy, I, 332-333.

GVNP, No.77, 129-132; PRP II, 245-251, commentary on 260-266.

80 81

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who used it to great effect in accusing the Novgorodians of consorting with his enemies.82 Novgorod Treaties with German and Baltic Cities and Merchants As mentioned above, a number of minor powers, in a varying configuration, was active in the North-West of medieval Russia and in the Baltic area. On the Russian side, this was first of all Novgorod, and then Smolensk and, later on, also Pskov (see below). The number of Novgorod treaties with other regional powers exceeds by far the few texts from Smolensk and Pskov and merits, therefore, special discussion. The general context, however, is the same. One of the most intriguing aspects of Russian foreign trade in the middle ages is the role of permanent settlements of foreign merchants.83 The 945 treaty between Byzantium and the Russians already dealt extensively with the colony of Russian traders in the St. Mamas quarter of Constantinople. Novgorod’s relations with Western powers, especially those connected with the Hanseatic League, were largely concerned with the position of the resident Hanseatic merchants in Novgorod. Even in Novgorod’s numerous treaties with the princes of Tver’ and Moscow, the freedom of the German Court (or Compound: nemetskii dvor) was often specifically included.84 The German Court, or St. Peter’s Court, enjoyed a kind of territorial immunity and had its own law, the Skra, and its own jurisdiction (see the chapter on the Skra). The treaties between Novgorod and the Hanseatic partners were mainly devoted to the definition of the status of the foreign trading colonies in Novgorod and the settlement of disputes arising between Russians and foreigners. Along with the Court of 82

83

Cf. Cherepnin, Arkhivy I, 344-345. Cherepnin’s restrained treatment of the episode (published in 1948) contrasts favourably with the commentary in PRP II, 245 (published in 1953): “The draft treaty of Novgorod with Kazimir IV reflected the reactionary attempt of the Novgorod boyars to secure the support of the PolishLithuanian feudal lords in order to counteract the unification policy of the Russian state.”

84

In Novgorod, the settlement was semi-permanent because for climatic reasons it had a semi-annual cycle; Novgorod could not be reached by ship in the winter. See the chapter on the Skra of Novgorod.

The usual formula was: “And you, prince, shall permit our brothers to trade in the German Court and you shall not close the Court and shall not appoint your constables there” (A v Nemetskom dvore, kniazhe, torgovati nasheiu brateiu, a dvora ti ne zatvariati, a pristavov ti ne pristavlivati). This formula already appeared in the treaty of 1270 with Iaroslav Iaroslavich of Tver’ (GVNP, No.3) and survived right to the end of Novgorod independence; it was still included in the 1471 treaty with Ivan III of Moscow (GVNP, No.26).


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St.Peter, there was also a so-called Gothic Court, for the merchants from the town of Visby on the island of Gotland, off the Swedish coast.85 In a more general perspective and parenthetically, one notes that the presence of foreign trading communities often had the effect of a catalyst on the development of Russian law. The earliest written sources, the 10th century treaties with Byzantium, as pointed out above, were very much connected with the appearance of Russian-Viking traders in Constantinople. The origins of the oldest parts of the Russkaia Pravda concerned the need to pacify inter-ethnic troubles in Novgorod in the times of Iaroslav the Wise (in the beginning of the 11th century), according to the majority viewpoint. The next restatement of the rules of the Russkaia Pravda was in the 1229 treaty between Smolensk and Riga (discussed above). The earliest known Hanseatic treaty (already referred to in the beginning of this chapter) of Novgorod is dated between 1189 and 1199.86 The treaty was concluded between, for Novgorod, prince Iaroslav Vladimirovich,87 assisted by the mayor Miroshka (ancestor of the leading mayoral family of Novgorod, the Miroshkinichi) and the tysiatskii Iakov, and on the other side the envoy Arbud “and all the German sons, and the Goths, and the whole Latin tongue”. In later treaties, the role of the local prince is diminished until he finally disappears altogether as a participant. The first line of the treaty stated that it confirmed the old peace treaty (staryi mir), so one may assume that the treaty generally conformed to a traditional pattern. This assumption is supported by the next known treaty, of 1262-1263, which contains similar provisions and refers four times to the staryi mir.88 In the earliest treaties, the Gothic Coast (i.e. Visby) appeared as the principal party on the German side; starting with the 1262/1263 treaty the 85

Generally on the foreign trading colonies in Novgorod: E.A. Rybina, Inozemnye dvory v Novgorode XII-XVII vv., Moskva, 1986. On Russian-Baltic relations: N.A. Kazakova, Russko-livonskie i russko-ganzeiskie otnosheniia, Moskva, 1975. On the treaties with the Hanseatic League: N.A. Kazakova, “Nachal’nyi tekst novgorodsko-nemetskikh dogovorov”, Vspomogatel’nye istoricheskie distsipliny, Vol.VI, Leningrad, 1974, 161-175.

86

87

GVNP, No.28, 55-56; PRP II, 125-1126. The Novgorod Chronicle mentions, under the year 1188, a raid against the men of Novgorod by “the Varangians [Vikings] in Gothland and by the Germans [Nemtsy]”; the treaty may therefore perhaps also be regarded as a peace treaty. E.A. Rybina has argued convincingly that the date of the treaty can be narrowed down to 1190-1191; see E.A. Rybina, “O dvukh drevneishikh torgovykh dogovorakh Novgoroda”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik, 3 (13), Leningrad, 1989, 43-50.

88

Commentators agree that this was the son of Vladimir Mstislavich, prince of Dorogobuzh, and grandson of Vladimir Monomakh. Iaroslav Vladimirovich left Novgorod in 1199. Cf. Cherepnin, Arkhivy I, 252, and PRP II, 126.

GVNP, No.29, 56-57.

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first place is taken by Lübeck, which gradually assumed leadership of the Hanseatic League in the course of the 13th century. Together with Lübeck and Visby, Riga is also mentioned by name at an early date already. Other regularly named parties are Kolyvan’ (Tallin), and Iur’ev (Tartu). Most treaties, however, make clear that the named parties appeared on behalf of “all the merchants from across the sea”. In 15th century treaties, “all the 73 [or 72] cities” are sometimes mentioned, the accepted number of Hanseatic League members at that time. The general treaty pattern with the Hanseatic League is perhaps best reflected by the text of a draft treaty of 1269.89 First of all, the text confirmed the old treaty terms, the staryi mir. Then the different ways Novgorod could be reached were regulated in detail: which routes, in summer and winter, the hiring of guides and pilots, etc. Much attention was paid to questions of jurisdiction: how disputes were to be adjudicated, rules of evidence, etc. There were also rules about dealing with criminal offences and with people who participated in inter-ethnic brawls. An echo of the old provisions of the Russkaia Pravda can be heard in the rules which set fixed compensations for homicide, injuries, etc. The treaty mentioned the German and the Gothic Courts, but did not contain specific rules about them. Many of the later treaties concerned more specific questions, but confirmed certain details of the framework provided by the more general treaties.90 A number of peace treaties and treaties declaring a truce demonstrate that the basically commercially oriented relationships were not always smooth.91

89

90

A fuller list of treaties between Novgorod and the Hanseatic cities is to be found in the Appendix to this chapter. Among the more general treaties, the following could be mentioned: 1371 (GVNP, No.42, 74-76), 1372 (GVNP, No.43, 76-79), 1436 (GVNP, No.67, 110-112). Kazakova has argued that two texts should not be regarded as treaties proper, but as unilateral declarations that a treaty had been concluded; it concerns GVNP, Nos.37 and 40 (of 1323, with the Teutonic Order, and of 1342, with German merchants); N.A. Kazakova, “Novgorodsko-Nemetskie dogovory ili Livonskie akty?”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik, 3(13), Leningrad, 1989, 63-67. These two documents begin with the formula: “Be it known to all that […]”, instead of the usual opening line of Novgorod treaties, identifying the officials participating in the signing of the treaty. However, there can be no doubt that the two documents concerned give a precise account of the conditions of a treaty.

91

GVNP, No.31, 58-61. According to Rybina, the treaty was only ratified in 1265; Rybina, “O dvukh drevneishikh …”, 43-50.

Cf. the treaties of 1372 (GVNP, No.43, 76-79), 1392 (GVNP, No.46, 80-83), 1434 (GVNP, No.64, 106-108), 1450 (GVNP, No.74, 124-126), 1466 (GVNP, No.76, 127-129).


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A smaller number of treaties concerned only local Baltic relations, i.e. with the German controlled cities of Riga, Kolyvan’ and Iur’ev.92 The most important of these was the treaty of 1474, between the bishop of Dorpat and Novgorod and Pskov. The treaty contained detailed regulation of the trade between the parties and the rights and duties of merchants. Most of the provisions concerned Pskov only, because Novgorod at that moment had already lost its independence, in fact if not in law. This was also the last treaty concluded by Novgorod. The last significant contingent among the treaties of Novgorod with its neighbours is represented by the treaties with the Teutonic order. The Order suffers, not always deservedly, from a bad press in Russian historiography, where it has been portrayed, especially after World War II, as a kind of precursor of the SS. The Order was founded during the Third Crusade in 1190-1191 and quickly turned its attention to the evangelization of the Baltic area. It transferred its lands to the Pope in 1234, receiving them in return as a fief. This made the order, under the international law regime prevailing in the Middle Ages, a distinct sovereign entity. Its grand master (Hochmeister) resided, since 1308, in Marienburg (the present Polish Malbork, not far from Gdansk/Danzig)), and the Landmeister for Livland in Riga. The success of the Order in the Baltic area was to a considerable extent due to its co-operation with the Hanseatic League. Novgorod also allied itself several times with the Order, in the complicated power game in the region. The first “eternal alliance” (vechnyi soiuz) was concluded in 132393 and was directed against the then still pagan Lithuanians. The other treaties all date after 1410, when the Order had been beaten decisively by Poland in the battle of Tannenberg, which marked the beginning of the decline of the Order. A treaty of 1421 between Novgorod and the order (represented by the Livonian Landmeister Silvester, the Land Marshal Walram, and others), restored the peace between the two sides and contained the usual conditions about the rights of merchants.94 The treaty was preceded by a draft

92

93

GVNP, No.48, 85-86 (concerning an extension of the peace treaty of 1392, the socalled peace of Niebur, in respect of Dorpat), No.49, 86-88 (settlement of a dispute between Novgorod and the cities of Riga, Dorpat and Reval), No.59, 96-98 (between Novgorod, acting also on behalf of Pskov, and the bishop of Dorpat and the Master of Riga, acting on behalf of the Teutonic Order), No.78, 133-136 (between Novgorod and Pskov and the bishop of Dorpat).

GVNP, No.37, 65-67.

GVNP, No.60, 98-100.

94

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peace treaty of 1420, between Novgorod, also acting on behalf of Pskov, and on the other side the Teutonic Order and the bishop of Dorpat.95 After renewed troubles, the representatives of Novgorod and of the Order and the bishop of Dorpat met again in February 1448 and concluded a preliminary treaty, agreeing on a truce for five years and a meeting in the summer on the banks of the Narva River. The meeting took place in July and resulted in a comprehensive treaty, which settled various outstanding border disputes.96 The former treaty was between Novgorod and the Order and the bishop of Dorpat. In the latter treaty, Pskov also took part on the side of Novgorod, while “prince Heidenreich Vinke”, the Master of Riga (i.e. the Landmeister of Livonia), also appeared for the archbishop of Riga, the bishops of Dorpat, Oesel and Kurland, and for the city of Riga. Pskov Treaties Originally, the city of Pskov, situated some 200 km south-east of Novgorod, was part of Novgorod and enjoyed the status of a Novgorod borough (prigorod). Of all the towns on Novgorod territory, only Pskov had the right to have its own boroughs. Already in the 12th century, as related in the Novgorod Chronicle, the men of Pskov, together with the inhabitants of Ladoga, often played an independent role in Novgorod’s internal politics. In subsequent years, Pskov increasingly followed its own course; it invited and dismissed its own princes, made its own laws,97 and negotiated with other powers. In 1347, Novgorod officially recognized Pskov’s independence.98 Pskov held out longer against Moscow than Novgorod; it finally had to submit in 1509. Several Pskov treaties have survived, some of them concluded by Pskov alone, others in conjunction with Novgorod. A treaty of 1440 with grand prince Kazimir of Lithuania was very much in the format of the usual trade agreements of Novgorod with other Baltic powers: provisions concerning mutual free trade and procedural agreements concerning the solution of arising disputes being the main topics.99 Three other treaties are with the Teutonic Order. All of them are available in bilingual form: Russian and Middle Low German. The first one, of 1417, was basically a 95

GVNP, No.59, 96-98.

97

GVNP, No.72, 117-119; No.73, 119-124.

98

The Court Charter of Pskov (Pskovskaia Sudnaia Gramota) is the most important legislative document in the period after the Russkaia Pravda and the Law Code of Ivan III of 1497.

99

On Pskov-Novgorod relations and the internal organization of Pskov, see A. Nikitskii, Ocherk vnutrennoi istorii Pskova, S.Peterburg, 1873.

GVNP, No.335, 321-322.

96


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peace treaty or a truce for ten years.100 It offers a picture of the complicated network of relations of Pskov at the time; Pskov is recognized as the patrimony (otchina) of the “grand prince, our lord, the Russian sovereign [russkii gosudar’/dem Ruschen keiser] Vasilii Dmitrievich” (the grand prince of Moscow), the Lithuanian grand prince Vitovt is identified as the potential enemy, and the bishops of Riga and Dorpat (Iur’ev) appear as potential allies. The second treaty, of 1448, was concluded together with Novgorod and has been discussed above. The third treaty, of 1503, was probably one of the last treaties concluded by Pskov before it completely lost its independence in 1508.101 The text is in the form of a solemn confirmation by “tsar” Ivan III of Russia102 of an agreement reached in Novgorod by representatives of the “respected prince of Livland, Walter von Plettenburg” on the one hand and of the city of Pskov on the other. The archbishop of Riga is included as a party, along with the Master of the Teutonic Order. The central theme of the treaty is a six-years’ truce between the parties; some accompanying provisions concern the freedom of trade. A treaty involving a truce for thirty years, between Novgorod and Pskov and, on the other side, the bishop of Iur’ev, was concluded in 1474 and has been discussed above.

7. Iarlyks of Tatar Khans So far, we have dealt with treaties shaping internal Russian relations and treaties with various western neighbours. Russia’s eastern and south-eastern neighbours, since Kievan times, had been steppe nomads: Scythian and other Iranian peoples in proto-historic times, then Khazars and Bulgars, Pechenegs and Polovtsians in Kievan times, and finally, the most redoubtable of them all, the Mongols-Tatars.103 The Primary Chronicle offers some confused evidence of treaty relations with the Khazars in the earliest Kievan times: the Khazars had 100 101 102

103

GVNP, No.334, 318-321. GVNP, No.347, 331-337. This was part of Ivan’s policy of having the title of tsar (caesar), equivalent to emperor or basileus, internationally recognized. Initially, only the Byzantine and Holy Roman emperors and the Tatar Great Khan were adorned in Russia with the title of tsar. Cf. Crummey, op.cit., 96; D. Ostrowski, Muscovy and the Mongols: Cross-cultural Influences on the Steppe Frontier, 1304-1589, Cambridge, 1998, 178-183. The empire of Chingis-Khan and his successors had a Mongol core in that it was founded by a coalition of Mongol tribes under a Mongol dynasty. The success of the enterprise meant that the ethnically Mongol rulers of the successor states which came into being after two generations were soon assimilated by the different ethnic majorities in those states, such as Chinese, Arab, and Tatar (as a general term to denote various Turkic elements) in the north-western part of the empire. Both Russian and Western authors use the terms Mongol and Tatar frequently indiscriminately.

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imposed a tribute on various Russian tribes, which was then abolished by the second known Kievan prince, Oleg, in 884 and 885.104 In later years, the relationship between Kiev and other Russian principalities with the Pechenegs and Polovtsians and other Turkic steppe nomads showed a cyclical pattern of raids against the sedentary Slavs, punitive counterraids, imposition of tribute or the buying-off of aggression (depending on the balance of power), and precarious truces, the whole embedded in a complicated network of cross-ethnic alliances. In all such relationships, oral agreements must have played a significant role, but whether anything was ever put down to paper or parchment is unknown and in any case nothing has survived. The Mongol invasions, starting in 1237, were, in a sense, a continuation of the state of uneasy co-existence of Russia with eastern steppe neighbours, but, on account of the overwhelming military strength of the Mongols, the rules of the game were changed fundamentally. Tatar superiority remained uncontested during the 13th and most of the 14th century (Moscow was sacked by khan Tokhtamysh in 1382). Only in the 15th century, when the Golden Horde was definitively broken up into several smaller khanates and Moscow proved to be unstoppable in the monopolization of power in Russia, did the wheel of fortune favour Russia. There is ample documentary evidence of Tatar presence in Russia in the middle ages, including also evidence from legal documents.105 The chronicles contain numerous reports of Russian princes travelling to the Tatar headquarters to obtain favours, such as recognition as prince or grand prince. One of the most effective ways of more powerful princes to limit the dependence of ‘younger brothers’ was to forbid them to have relations with the Golden Horde (Ordy ne znati). There are, however, no treaties between the Golden Horde and Russian princes. This absence may to some extent be explained by the few documents that are available and that can functionally be equated to treaties, to the extent that they define a relationship which could be categorized as belonging to the sphere of public international law. The basic reason for this absence of treaties is undoubtedly that the khan saw himself as the absolute ruler who had no reason to negotiate and contract with people who were his subjects. The most important group among the documents are the charters (iarlyki) issued by Tatar rulers to the leader of the Russian church, the 104

105

Cf. A.P. Novosel’tsev, “Drevnerussko-khazarskie otnosheniia i formirovanie territorii drevnerusskogo gosudarstva”, V.L. Ianin (ed.), Feodalizm v Rossii [Cherepnin memorial collection], Moskva, 1987, 193-200. Cf. A.D. Gorskii, “Otrazhenie tataro-mongol’skogo iga v russkikh aktakh XIV-XV vv.”, V.T. Pashuto (ed.), Feodal’naia Rossiia vo vsemirno-istoricheskom protsesse [Cherepnin Festschrift], Moskva, 1972, 48-58.


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metropolitan of Moscow. The earliest iarlyk, of 1267 is addressed to all Tatar officials, the next five to various Moscow metropolitans.106 The main content of all these documents was that the Russian church was exempt from all taxes; it was recognized that the church in turn would pray for the khan and his family. The iarlyki also stipulated that the estates of the church should remain unmolested. One of the interesting aspects of the iarlyki is that they enumerate the various taxes imposed by the Tatars. A small number of other documents adds to the picture sketched by the collection of iarlyki. A laconic charter, dated 1266-1272, begins: “The words of Mengu-Temir to prince Iaroslav: allow the German merchants to travel freely in your lands.” In the following and last sentence of the charter, Iaroslav declares that the men of Riga and all others may travel freely (put’ vash chist).107 The subordinate position of Russian princes is even more explicit in a letter from Edigei Emir of 1409 to the Moscow grand prince Vasilii Dmitrievich.108 Edigei, although not a khan, was the factual Tatar ruler; he reproached the Moscow prince in no uncertain terms for the latter’s failure to pay his dues and for lack of respect. That the khans were dealing, on the other hand, with more distant European rulers on a basis of equality is shown by two other documents, 106

Iarlyk of Mengu-Temir of 1267, SGGD, Vol.2 No.2, 5-6, also PRP III, 467-468, and V.N. Beneshevich, Sbornik pamiatnikov po istorii tserkovnago prava, II, Petrograd, 1914, 14-16 ; of Taidula, wife of Dzhanibek Khan, of 1347, to metropolitan Ioann, PRP III, 466-467, and Beneshevich, op.cit., 13-14; of Taidula of 1351, to metropolitan Feognost, SGGD, Vol.2 No.9, 11-12, also PRP III, 468-469, and Beneshevich, op.cit., 16-18; of Taidula of 1354, to metropolitan Aleksei, SGGD, Vol.2 No.10, 12, also PRP III, 470, and Beneshevich, op.cit., 24-25; of Berdibek of 1357, to metropolitan Aleksei, SGGD, Vol.2 No.11, 12, also PRP III 469, also Beneshevich, op.cit., 18-20; of Tiuliak of 1379, to metropolitan Aleksei, SGGD, Vol.2 No.12, 13-14, also PRP III, 465-466, and Beneshevich, op.cit., 9-12. See, also, M.D. Priselkov, Khanskie iarlyki russkim metropolitam, S.Peterburg, 1916. Beneshevich (21-24) also gives the text of a iarlyk from khan Uzbek, which document is considered a falsification by PRP III, 464. In a recently published study of the Mongol iarlyki, A.P. Grigor’ev has presented corrected texts of the six documents, based on a new examination of the original Turkic texts (A.P. Grigor’ev, Sbornik khanskikh iarlykov russkim metropolitam, S.Peterburg, 2004). This has resulted in considerable alterations of the hitherto accepted views. The 1347 document was apparently not addressed to the metropolitan Ioann, but constituted a laissez-passer (proezzhaia gramota) to a bishop Ioann of Sarai, the bishop of the Christians living in the eastern, Mongol controlled region of Russia. 107

108

GVNP, No.30, 57. The prince is Iaroslav Iaroslavich, grand prince of Vladimir, who became prince of Novgorod in 1266. SGGD, Vol.2 No.15, 17-18. Also in A.A. Gorskii, Moskva i Orda, Moskva, 2001, 196-197. On Edigei and the humiliations inflicted on Moscow, see Crummey, op.cit., 62-65.

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a peace proposal by khan Tokhtamysh to the Polish king, of 1393,109 and a similar proposal of 1484 by khan Murtazy to grand prince Kazimir of Lithuania.110 The fraternal terminology (“elder/younger brother”), already employed in the former document by Tokhtamysh, only became current in Russian-Tatar relations by the end of the 15th century.111

8. Concluding Thoughts The field surveyed in this chapter is vast and no specific hypotheses to be verified or falsified have been advanced. It is, therefore, appropriate to speak of concluding thoughts instead of conclusions. This implies that an element of personal interest and choice is involved in the views expressed below. I propose to arrange my thoughts in an order of increasing specificity. First of all, one could look at the treaty network of medieval Russia as a source of information about political and constitutional structure. Secondly, looking at the treaties themselves, at their content and form, certain inferences may be made about the legal system they reflect. Thirdly, the treaties may offer information about specific topics, legal or otherwise. These are three different perspectives, but that does not mean that they completely exclude each other. One thought leads to another; grouping them in three sets mainly serves the avoidance of an otherwise chaotic discussion. When examining the treaty network of medieval Russia, it is inevitable to use modern concepts such as state, sovereignty, federation, etc. But, as already argued in earlier chapters, it makes good sense to stay aware of the anachronistic element involved. The people of Kievan Russia did not worry about whether they constituted a state, a federation or a confederation. In early Kievan times, the tribal factor was unquestionably still alive, although on the way out. Two generations after Iaroslav the Wise (†1054) the chronicles occasionally still referred to tribal communities, notwithstanding the fact that the formal political structure was already that of principalities arranged around capital cities.112 Whether one could speak of tribal states in pre-Kievan Russia is a moot question here; quite clearly the early Kievan state as it had taken shape under St. Vladimir and 109 110

111 112

Peshchak, Hramoty, 112-113. V.M. Rusanivs’kyi (ed.), Ukrains’ki hramoty XV st., Kiev, 1965, 137-138. The same Murtazy wrote to Ivan III of Moscow in 1487 and the different address is very noticeable; cf. Gorskii, op.cit., 199 (text of the letter) and 179ff. (commentary).

See Ostrowski, op.cit, 98. The so-called Testament of Vladimir Monomakh (†1115) referred to his expeditions among the Krivichians.


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his sons Iaroslav the Wise was in possession of all the standard attributes of a state: a territory, a regular and effective government, legislation, a sense of community or national identity, international acceptance, etc. It is more difficult to categorize the politico-constitutional set-up of the subsequent period. The attributes of statehood were divided between the apanage principalities (udel’nye kniazhestva) on one side and a surviving concept of over-arching Kievan unity on the other. The peculiarity of the organization of Kievan Rus’ after the death of Vladimir Monomakh was that this unity resided, not in an ailing central government unable to impose its control in the regions (there was no such government), but in the ruling dynasty. This unity expressed itself, among other ways, in the curious system of switching princely residences according to a perceived family hierarchy. This system, by the same token, also put a brake on the centrifugal aspirations of the individual principalities. Other unifying factors, such as a common legal system, flowed from the dynastic unity. The main factor which allowed the dynastic principle to operate was a specific concept of family hierarchy or seniority (starshinstvo). With hindsight, it is easy to forecast that such a system could function only for about three generations. By then (provided there would be a sufficiently large pool of descendants113), the various branches of the family would probably have grown apart so far that the sense of family unity had been fatally weakened. At the same time, the restraints on central leadership implicit in the system will inhibit the system’s ability to take effective precautions against external threats. Mongol military superiority would probably have prevailed against a united Russia too, but the Mongols never had to face that enemy. Tatar-Mongol overlordship, after 1240, poses new problems in defining the Russian polity of the era. On the surface, it would seem that the traditional Kievan game continued among the princes: to struggle one’s way up in the family hierarchy, with the ultimate aim of becoming the undisputed leader, which would automatically involve possession of the Kievan throne (although inversely possession of that throne by no means implied undisputed leadership). In 1168, the city of Vladimir replaced Kiev as the most prestigious residential city, but that did not alter the general idea. Once the rules concerning starshinstvo had loosened, it became a quality that was negotiable. Through guile and force, princes were able to improve their status in the dynastic hierarchy and treaties establishing contractual seniority relationships between stronger and weaker princes were, as explained, the prime legal instrument to achieve this result. 113

One may speculate how Western Europe would have developed if the extinction of the Carolingian dynasty would not have allowed secondary dynasties to take over in France and Germany.

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In order to evaluate the nature of Mongol overlordship, our principal sources are the Russian chronicles and, to a lesser extent, legal documents, such as treaties. These sources are remarkably reticent, but do yield pertinent information if properly scrutinized. The chronicles generally restrict themselves to simple narrative of two kinds: a sympathetic tale of the suffering inflicted on the Russians by the Mongols, or a matterof-fact account of the dealings of Russian princes with the khan. There is no explicit acknowledgment of a change in the political order; the political system appears to follow the pattern of ages past, except that it is suffering from an unpleasant attack of a strange disease. For medieval Russia, Mongol occupation (this was what it amounted to in the violent first years) and then Tatar overlordship lasting on and off for two centuries were phenomena that were hard to explain within the Eastern Christian view of the time.114 The evidence, however modest, is still clear. For a long period, Russian princes ruled by the grace of the khan. As long as the Golden Horde retained its vigour, it did not countenance open resistance of the Russian princes. In the nomad steppe polities, the exaction and payment of tribute were part of a tradition going back to the earliest times. The material expression of the Tatar-Russian relationship was therefore the imposition of various taxes.115 No treaties between the Golden Horde and Russian princes are known to exist. The provisional explanation of this has to be that the khan would not negotiate with people whom he considered as his subjects. This explanation can only be called provisional, because the appearance of a single treaty would vitiate it. However, a few examples of treaties between the 114

115

See for related but significantly different discussions of this problem: Ch.J. Halperin, The Tatar Yoke, Columbus, OH, 1986, and Ostrowski, op.cit., esp. ch.11 “The Myth of the ‘Tatar Yoke’”. The medieval Russian problem of assigning Tatar-Mongol domination of Russia a proper place in the prevailing conceptual framework finds a curious echo in post-World War II Soviet historiography. The “Tatar Yoke” is then presented as a precursor of Nazi occupation; in both instances the sacrifices and bravery of the Russian people saved the civilized world. Before World War II, a more sober view is encountered, e.g. B.A. Grekov & A. Iakubovskii, Zolotaia Orda, Leningrad, 1937, or A.N. Nasonov, Mongoly i Rus’, Leningrad, 1940 (republished, S.Peterburg, 2002, in one volume with “Russkaia Zemlia” i obrazovanie territorii drevnerusskogo gosudarstva, by the same author, originally published in Leningrad, 1951). See, also, Vernadsky’s discussion of this complex of questions in Istoriia Rossii; Mongoly i Rus’, Tver’/Moskva, 1997, 352-362. In this connection, it is worth noting that of the considerable linguistic heritage from Tatar times the best known are the words for money (den’gi) and for customs (tamozhnia, from Tatar tamga, seal or stamp). Words of Tatar origin are especially numerous in the language of bureaucracy; the awe-inspiring iarlyk from the middle ages has been devalued in modern times to a simple tag or label.


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khan and European princes are known and have been referred to above; also, there is evidence of the khan giving straightforward instructions to the grand prince of Vladimir. All this strengthens the main thesis: the Russian princes were subjects of the khan, although they were allowed considerable freedom in regulating their mutual relationships and their relationships with Western powers. The process of emancipation from Tatar domination was long and arduous, with many ups and downs. Once the Golden Horde became fragmented, the princes of Vladimir-Moscow were able to assert their authority over one Russian principality after another, without waiting for Tatar approval.116 When the Moscow grand princes began using the title of gosudar’ or sovereign, they demonstrated that a new era had started.117 Moving to the contents of the medieval Russian treaties now, we may easily establish the existence of several main categories. There are, first of all, treaties dealing with universal standard themes of international law, such as peace, truce, borders and other territorial questions, alliance and mutual support, settlement of inter-state disputes, etc. The second main category is formed by the treaties between princes, regulating mutual relationships within the framework of the seniority principle. These treaties are unique for Russia, located as they are in an area where international law, constitutional (state) law and family law overlap. The parties negotiated and contracted with each other as sovereign heads of states, as public officials in a relationship of subordination, and as brothers dividing up a family estate. The third category is represented primarily by treaties in which the Russian party (Novgorod, but also Pskov and Smolensk) is dealing with a counterpart consisting wholly or in part of a group of merchants. The contents of these commercial treaties vary: some of them are general, outlining a general legal framework for mutual trade relations; others deal with specific kinds of trade, with disputes, claims, etc. An essential element of these treaties, often explicitly mentioned and otherwise always implied, is the existence of permanent foreign (usually German) trade settlements in Novgorod (and, probably, in other cities as well, although much less is known about this). The form of medieval Russian treaties constitutes a specialized and technical topic that can only be indicated here. There is the obvious distinction between formal treaties, expressed in solemn and traditional form, and other types of agreements. The treaties revolving around starshinstvo 116

117

As late as 1412, the Moscow grand prince Vasilii Dmitrievich visited khan Kerim-Berdy in Sarai, the headquarters of the Golden Horde, to petition the latter’s recognition of his rights. Cf. Karamzin, Vol.5, Ch.2, col.119. Cf. Ostrowski, op.cit., 99.

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were commonly in the form of an exchange of statements, where the duties assumed and rights stipulated appear as mirror images. As Moscow was able to assert its supremacy, it adapted the formulary of its treaties. Novgorod treaties display a style of their own. Byzantine influence on the form of medieval Russian treaties is undeniable. Russian medieval treaties are also of great interest for the general history of Russian law, because they offer important information on numerous aspects of medieval Russian law, apart from the specific points concerning international law, as mentioned above. In the discussion of the treaties of Smolensk, for example, it was noted that the early texts from 1229 and 1230/1270 form an essential link between the Russkaia Pravda and the next major legislative document of medieval Russia, the Court Charter of Pskov, from the middle of the 15th century. The treaties of the Moscow princes constitute one of the chief sources in the study of the political history of medieval Russia. The Novgorod treaties with its Hanseatic partners complement what West European sources tell us about East-West relations in the European middle ages. Finally, medieval Russian treaties inevitably reflect the political ideologies of their times. The complexity of this theme has two aspects. First, the contemporary appreciation of Mongol overlordship by medieval Russians has to be examined and understood. And, then, the way this overlordship has been seen through the ages, by Russians and others, has itself been subject to change.118 Without treating these questions in depth, a few more or less random observations must suffice. One point to be mentioned in that connection is the importance of nomenclature and titles. Recognition of the khan of the Golden Horde as caesar (tsar) was crucial for the ideological evaluation of Mongol supremacy in the world of ideas of medieval Russia. Along the same lines, the titles of prince and grand prince were of the utmost political significance. Within Russia, only the descendants of Rurik were considered to be princes, and to have the right to rule.119 The background of all this was a medieval Christian, and especially Russian, way of perceiving the world order, in which God had appointed Christian princes to govern his people. In Russia, this happened to be the house of Rurik, or rather the descendants of St. Vladimir, the Kievan ruler who had brought Christianity to Russia. 118 119

I refer in this connection especially to the works of Halperin and Ostrowski, mentioned above. In the later middle ages. Russia began to recognize and absorb foreign princes; first the descendants of the Lithuanian Gedimin dynasty, and then also various Tatar princes. But only as late as 1707 the first new prince was created in Russia, Peter the Great’s favourite Menshikov. Cf. E.P. Karnovich, Rodovye prozvaniia i tituly v Rossii, S.Peterburg, 1886 (reprint, Moskva, 1991), 184.


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The khan of the Golden Horde did not fit easily into this scheme, but by “fashioning him into a basileus” (Ostrowski) it could be achieved. Also, the chronicles demonstrate time and again that Tatar rule was conceptualized and in a way justified as God’s punishment for the sins of Russia and especially for the enmity and bloodshed among the Russian princes. Every following age put its own gloss on this view and no one more drastically that the Soviet period. As a result, modern views of the Russian middle ages, especially of the Mongol era, are still predominantly constructed out of stereotypes, many of them false.120 Mongol rule had been depicted as cruel and despotic, responsible for the worst aspects of Russian government in later ages. In fact, the Mongols, although no gentlemen by modern standards, were more efficient conquerors, but not notably more vicious occupiers than their contemporaries. They were remarkably tolerant in the sphere of religion. The Mongol system of government and administration was quite sophisticated and operated through checks and balances, not through the individual despotism of the khan. The organization of the Muscovy state owed a considerable debt to the Tatars; the bad habits had mainly been taken over from Byzantium. Heroic Russian resistance against Asian barbarity also requires a few critical footnotes. Aleksandr Nevskii, sainted by the Russian church, owed his success in laying the foundations for Moscow’s later supremacy to being the most effective collaborator with the Golden Horde. And, on a minor point, his celebrated victory over the German knights on Lake Peypus in 1242 did not amount to much in military terms, but was elevated only a posteriori, for propaganda reasons, into a decisive event.121

120 121

Modern Russian authors display a more detached attitude; e.g. A.A. Gorskii, Moskva i Orda, Moskva, 2001. Cf. J. Fennel, The Crisis of Medieval Russia 1200-1304, London/New York (5th ed.), 1993, 103-107. A more critical evaluation of Aleksandr Nevskii occasionally surfaces in recent Russian works. A.B. Shirokorad, a military historian, devoted a chapter in a popular historical study (Rus’ i Orda, Moskva, 2004) to the question; the chapter is entitled “Aleksandr Nevskii–Myth and Reality” and its main argument is that the reputation of this most doubtful hero has been manipulated in different periods (by Ivan the Terrible, Peter the Great, and the Soviets) to further the ephemeral interests of the rulers of the day.

Appendix 1. Novgorod Treaties with Moscow and Tver’ Grand Princes 1264

Iaroslav Iaroslavich of Tver’ GVNP No.1, 9-10; SGGD Vol.1 No.2, 2-3; PRP II, 135136; Kaiser, Laws, 67-68 (Russian text and English translation) commentary: PRP II, 134-159

1266

Iaroslav Iaroslavich of Tver’ GVNP No.2, 10-11; SGGD Vol.1 No.1, 1; PRP II, 137-138 commentary: PRP II, 134-159

1270

Iaroslav Iaroslavich of Tver’ GVNP No.3, 11-13; SGGD Vol.1 No.3, 3-4; PRP II, 138141 commentary: PRP II, 134-159

1296/1301

Mikhail Iaroslavich of Tver’ GVNP No.4/5, 13-15; SGGD Vol.1 No.4/5, 5-6; Tver’ and Novgorod copies

1304/1305

Mikhail Iaroslavich of Tver’ GVNP No.6, 15-16; SGGD Vol.1 No.9, 11-12; Kaiser, Laws, 69-71 (Russian text and English translation)

1304/1305

Mikhail Iaroslavich of Tver’ GVNP No.7, 16-18; SGGD Vol.1 No.10, 13

1304/1305

Mikhail Iaroslavich of Tver’ GVNP No.8, 18-19; SGGD Vol.1 No.11, 14

1307/1308

Mikhail Iaroslavich of Tver’ GVNP No.9/10, 19-22; SGGD Vol.1 No.6/7, 6-8; Novgorod and Tver’ copies

1316

Mikhail Iaroslavich of Tver’ (peace treaty) GVNP No.11, 22-24; SGGD Vol.1 No.12, 15

1317

Mikhail Iaroslavich of Tver’ (peace treaty) GVNP No.12, 24; SGGD Vol.1 No.16, 21

1318/1319

Iurii Danilovich of Moscow and Mikhail Iaroslavich of Tver’ (peace treaty) GVNP No.13, 25-26; SGGD Vol.1 No.14, 17-18


221

1326/1327

Aleksandr Mikhailovich of Tver’ GVNP No.14, 26-28; SGGD Vol.1 No.15, 19-20; Kaiser, Laws, 72-74 (Russian text and English translation)

1371

Mikhail Aleksandrovich of Tver’ GVNP No.15, 28-30; SGGD Vol.1 No.8, 9-10; Kaiser, Laws, 75-78 (Russian text and English translation)

1371/1372

Dmitrii Ivanovich of Moscow (mutual aid) GVNP No.16, 31

1372

Novgorod conditions for peace treaty with Mikhail Aleksandrovich of Tver’ GVNP No.17, 32-33; SGGD Vol.1 No.13, 16

1375

Mikhail Aleksandrovich of Tver’ GVNP No.18, 33-34; SGGD Vol.1 No.17, 21-22

1435

Vasilii Vasil’evich of Moscow (peace treaty) GVNP No.19, 34-36

1446/1447

Boris Aleksandrovich of Tver’ GVNP No.20, 36-38; SGGD Vol.1 No.18, 23-24

1448/1461

Vasilii Vasil’evich of Moscow (temporary transfer of territory) GVNP No.21, 38-39

1456

Vasilii Vasil’evich of Moscow (Iazhelbitsy peace treaty) GVNP No.22/23, 39-43; Novgorod and Moscow copies

1456

Novgorod to Vasilii Vasil’evich (on implementation of Iazhelbitsy treaty) GVNP No.24, 43-44

1471

Novgorod to Ivan Vasil’evich of Moscow (on payment of debts) GVNP No.25, 44

1471

Ivan Vasil’evich of Moscow (Korostyn’ peace treaty) GVNP No.26/27, 45-51; SGGD Vol.1 No.20, 26-30; PRP II, 251-259; Novgorod and Moscow copies; commentary: PRP II, 267-272

222


with Foreign Rulers 1323

Magnus Eriksson of Sweden (peace treaty) GVNP No.38, 67-68

1326

Magnus Eriksson of Norway and Sweden GVNP No.39, 69-70; parallel text in Latin

1431

Svidrigailo of Lithuania GVNP No.63, 105-106; SGGD Vol.1, No.19, 24-25; Cherepnin, Arkhivy I, 331-332 (full reconstruction)

1440-1447 Kazimir of Lithuania (peace treaty) GVNP No.70, 115-116 1470-1471 Kazimir of Poland/Lithuania GVNP No.77, 129-132; PRP II, 245-251; commentary: PRP II, 260-266

with German and Baltic Cities and Merchants 1189-1199 Visby [Gothic Coast, Gotskii Bereg] and German cities (peace and commerce treaty) GVNP No.28, 55-56; PRP II, 125-126; commentary: PRP II, 124-132 1262/1263

Lübeck, Visby and German cities (peace and commerce treaty) GVNP No.29, 56-57

1269

Lübeck, Visby and German cities (draft commercial treaty) GVNP No.31, 58-61 parallel text in Middle Low German

1269

Riga and Lübeck (free transit) GVNP No.32, 62

1301

Lübeck (co-operation against Sweden) GVNP No.33, 62-63; parallel text in Middle Low German

1301

Lübeck, Visby, Riga (free transit) GVNP No.34, 63-64

1323

Livonian Order122 (alliance) GVNP No.37, 65-67; parallel text in Middle Low German

122

Actually the Teutonic Order. The Livonian Order had been founded in 1202 by Adalbert, bishop of Riga. In 1237, the Order joined the Teutonic Order. The old name is occasionally used in Russian sources, when referring to events after 1237.


223

1338

Lübeck and Visby (dispute settlement) GVNP No.40, 71-72; parallel text in Middle Low German

1342

Lübeck, Visby, Riga, Dortmund, Münster and other German cities (wax trade) GVNP No.41, 73-74; parallel text in Middle Low German

1371

Lübeck, Visby and German cities (draft treaty) GVNP No.42, 74-76; parallel text in Middle Low German

1372

Visby and German merchants (two years’ truce) GVNP No.43, 76-79; parallel text in Middle Low German

1373

Lübeck and Visby (dispute settlement) GVNP No.44/45, 79-80

1392

Lübeck, Visby, Riga, Tartu [Iur’ev], Tallinn [Kolyvan’] and German cities (peace treaty) GVNP No.46, 80-83

1405

Taru (extending 1392 peace treaty) GVNP No.48, 85-86; parallel text in Middle Low German

1409

Riga, Tartu, Tallinn (dispute settlement) GVNP No.49, 86-88; parallel text in Middle Low German

1420

Riga and Teutonic Order (peace treaty) GVNP No.59, 96-98

1421

Teutonic Order (dispute settlement) GVNP No.60, 98-100

1423

Hanseatic League (dispute settlement) GVNP No.62, 102-104; parallel text in Middle Low German

1434

Hanseatic League (two years’ truce) GVNP No.64, 106-108; parallel text in Middle Low German

1436

Hanseatic League (renewal of previous treaties) GVNP No.67, 110-112; parallel text in Middle Low German

1439

German colony in Novgorod (dispute settlement) GVNP No.68, 113-114; parallel text in Middle Low German

1448

Teutonic Order (five years’ truce) GVNP No.72, 117-119

224


1448

(together with Pskov) Teutonic Order GVNP No.73, 119-124; parallel text in Middle Low German

1450

Hanseatic League (seven years’ truce) GVNP No.74, 124-126 (parallel text in Middle Low German

1466

Hanseatic league (two years’ truce) GVNP No.76, 127-129; parallel text in Middle Low German

1474

(together with Pskov) Tartu (thirty years’ truce) GVNP No.78, 133-136 2. Pskov Treaties

1417

Teutonic Order (ten years’ truce) GVNP No.334, 318-321 (parallel text in Middle Low German

1440

Kazimir of Lithuania GVNP No.335, 321-322

1503

Teutonic Order (six years’ truce) GVNP No.347, 331-337; parallel text in Middle Low German 3. Polotsk Treaties

1478

Riga (trade agreement) A.L. Khoroshkevich (ed.), Polotskie gramoty XIII-XVI vv., II, Moskva, 1978, No.171, 69-76 4. Moscow Treaties with Other Russian Princes

1367

Vladimir Andreevich of Serpukhov-Borovsk DDG No.5, 19-21; SGGD Vol.1 No.27, 44-45

1374-1375


1375

Mikhail Aleksandrovich of Tver’ DDG No.9, 25-28; SGGD Vol.1 No.28, 46-48


1382

Oleg Ivanovich of Riazan’ DDG No.10, 29-30; SGGD Vol.1 No.32, 53-55

1389


1390


1390

Iurii Dmitrievich of Galich DDG No.14, 39-40

1396

Mikhail Aleksandrovich of Tver’ DDG No.15, 40-43

225

1401-1402 Vladimir Andreevich of Serpukhov-Borovsk DDG No.16, 43-45; SGGD Vol.1 No.38, 69-71 1401-1402 Andrei Dmitrievich of Mozhaisk and Petr Dmitrievich of Dmitrov DDG No.18, 51-52; SGGD Vol.1 No.37, 68-69 1402

Fedor Ol’govich of Riazan’ DDG No.19, 52-55; SGGD Vol.1 No.36, 65-67

1428

Iurii Dmitrievich of Galich and Zvenigorod DDG No.24, 63-67; SGGD Vol.1 No.43/44, 86-89; Moscow and Galich copies

1433

Iurii Dmitrievich of Galich DDG No.30, 75-80; SGGD Vol.1 No.49/50, 99-104; Moscow and Galich copies

1433

Vasilii Iaroslavich of Serpukhov-Borovsk DDG No.27, 69-71; SGGD Vol.1 No.45, 90-92

1434

Ivan Andreevich of Mozhaisk and Mikhail Andreevich of Verei-Belozero DDG No.31, 80-82; SGGD Vol.1 No.46, 92-94; MozhaiskVerei-Belozero copy DDG No.32, 82-83; SGGD Vol.1 No.47, 94-96; Moscow copy

1434

Ivan Fedorovich of Riazan’ DDG No.33, 83-87; SGGD Vol.1 No.48, 96-99

1434

Dmitrii Iur’evich Shemiaka and Dmitrii Krasnyi Iur’evich of Galich DDG No.34, 87-89; SGGD Vol.1 No.60, 130-133

226


1436

Dmitrii Iur’evich of Galich DDG No.35, 89-100; SGGD Vol.1 No.56-59, 118-124; two different sets of Moscow and Galich copies

1439

Vasilii Iur’evich of Galich DDG No.36, 100-105; Moscow and Galich copies

1439

Boris Aleksandrovich of Tver’ DDG No.37, 105-107

1441-1442

Dmitrii Iur’evich of Galich DDG No.38 I, 107-112; SGGD Vol.1 No.52-53, 107-112; PRP III, 264-272; Moscow and Galich copies DDG No.38 II, 112-117; SGGD Vol.1 No.54-55, 113-118; second version

1445

Ivan Andreevich of Mozhaisk and Mikhail Andreevich of Verei-Belozero DDG No.41, 121-123; SGGD Vol.1 No.61, 133-135

1445

Ivan Andreevich of Mozhaisk DDG No.42, 123-125; SGGD No.69, 153-154

1445

Mikhail Andreevich of Verei-Belozero (draft treaty) DDG No.43, 125-126; SGGD Vol.1 No.70, 155-156

1447

Mikhail Andreevich of Verei-Belozero DDG No.44, 126-129; SGGD Vol.1 No.64, 140-142

1447

Vasilii Iaroslavich of Serpukhov-Borovsk DDG No.45, 129-140; SGGD Vol.1 No.71-74, 156-168; two different sets of Moscow and Serpukhov-Borovsk copies

1447

Ivan Andreevich of Mozhaisk and Mikhail Andreevich of Verei-Belozero (reconciliation) DDG No.46, 140-141; SGGD Vol.1 No.67, 149-151

1447

Ivan Fedorovich of Riazan’ DDG No.47, 142-145; SGGD Vol.1 No.65, 142-144

1447

Ivan Andreevich of Mozhaisk DDG No.48, 146-148; SGGD Vol.1 No.66, 146-149


227

1448

Ivan Andreevich of Mozhaisk DDG No.51a & b, 150-153; SGGD Vol.1 No. 63, 138-139 (two versions) DDG No.51c, 153-155; SGGD Vol.1 No.68, 151-152 (third version)

1448

Ivan Vasil’evich of Suzdal’ DDG No.52, 155-160; SGGD Vol.1 No.80-81, 185-189; Moscow and Suzdal’ copies

1450

Mikhail Andreevich of Verei-Belozero DDG No.55, 164-168; SGGD Vol.1 No.75, 168-170; Moscow and Verei-Belozero copies

1450-1454 Vasilii Iaroslavich of Serpukhov-Borovsk DDG No.56, 168-175; SGGD Vol.1 No.84-85, 195-201; Moscow and Serpukhov-Borovsk copies 1451-1456

Vasilii Iaroslavich of Serpukhov-Borovsk DDG No.58, 179-186; SGGD Vol.1 No.78-79, 177-184; Moscow and Serpukhov-Borovsk copies

1456

Boris Aleksandrovich of Tver’ DDG No.59, 186-192; SGGD Vol.1 No.76-77, 171-176; Moscow and Tver’ copies

1462

Mikhail Borisovich of Tver’ DDG No.63, 201-207; SGGD Vol.1 No.88-89; 209-215; Moscow and Tver’ copies

1462-1464 Mikhail Andreevich of Verei-Belozero DDG No.64, 207-211; SGGD Vol.1 No.90-91, 215-220; Moscow and Verei-Belozero copies 1464

Mikhail Andreevich of Verei-Belozero DDG No.65, 212-214; SGGD Vol.1 No. 92, 220-222

1472

Andrei Vasil’evich of Uglich DDG No.66, 214-216; SGGD Vol.1 No.95, 228-230

1472

Mikhail Andreevich of Belozero DDG No.67, 217-221; SGGD Vol.1 No.93-94, 223-227; Moscow and Belozero copies

1473

Boris Vasil’evich of Volotsk DDG No.69 I, 225-229; SGGD Vol.1 No.97-98, 234-238; Moscow and Volotsk copies DDG No.69 II, 229-232; corrected text

228


1473

Andrei Vasil’evich of Volotsk DDG No.70 I, 232-2327; SGGD Vol.1 No.99-100, 239-243; Moscow and Volotsk copies DDG No.70 II, 237-241; SGGD Vol.1 No.101-102; 244249; Moscow and Volotsk copies; second version DDG No.70 III, 241-246; third version; Moscow and Volotsk copies DDG No.70 IV, 247-249; fourth version

1481

Andrei Vasil’evich of Uglich DDG No.72 I, 252-257; Moscow and Uglich copies DDG No.72 II, 257-263; SGGD Vol.1 No.106-107. 253-259; Moscow and Uglich copies DDG No.72 III, 263-268; SGGD Vol.1 No.108-109, 259265; Moscow and Uglich copies

1481

Boris Vasil’evich of Volotsk DDG No.73 I, 268-271 DDG No.73 II, 271-275; SGGD Vol.1 No.110-111, 265-270; Moscow and Volotsk copies

1482

Mikhail Andreevich of Verei-Belozero DDG No.75, 277-283; SGGD Vol.1 No.113-114, 273-279; Moscow and Verei-Belozero copies

1483

Ivan Vasil’evich of Riazan’ DDG No.76, 283-290; SGGD Vol.1 No.115-116, 279-286; Moscow and Riazan’ copies

1483

Mikhail Andreevich of Verei-Belozero DDG No.78, 293-295; SGGD Vol.1 No.118, 290-292

1484-1485

Mikhail Borisovich of Tver’ DDG No.79, 295-301; SGGD Vol.1 No.119-120, 293-299; Moscow and Tver’ copies

1486

Mikhail Borisovich of Tver’ DDG No.79, 295-301; SGGD Vol.1 No.119-120, 293-299; Moscow and Tver’ copies

1486

Andrei Vasil’evich of Uglich DDG No.82, 322-328; SGGD Vol1 No.125-126, 313-320; Moscow and Uglich copies


229

with Foreign Princes 1371

Olgerd Gediminovich of Lithuania and Sviatoslav Ivanovich of Smolensk (reconciliation) DDG No.6, 21-22; SGGD Vol.1 No.31, 52-53; M.M. Peshchak, Hramoty XIV st., Kiev, 1974, 46-49

1449

Kazimir of Poland-Lithuania DDG No.53, 160-161, PRP III, 272-277

1494

Aleksandr Kazimirovich of Lithuania DDG No.83, 329-332; SGGD Vol.5 No.29, 16-18 5. Other Princely Treaties among themselves and with Foreign Princes

1229

Mstislav Davydovich of Smolensk and Riga PRP II, 57-71; commentary: PRP II, 75-85; R.I. Avanesov (ed.), Smolenskie gramoty XIII-XIV vv., Moskva, 1963, 18-62

1230-1270

(Vsevolod Mstislavich of ?) Smolensk and Riga PRP II, 72-75; commentary: PRP II, 85-87

1330-1359

Ivan Aleksandrovich of Smolensk and Riga SGGD Vol.2 No.8, 10-11

1366

Dmitrii of Volynia (?) and king of Poland (border settlement) Peshchak, Hramoty, 38-39

1386

Iurii Sviatoslavich of Smolensk and Vladislav Jagiello of Poland-Lithuania and Svidrigailo of Lithuania Avanesov, Smolenskie gramoty, 72-74; Peshchak, Hramoty, 69-71

1399

Vitovt of Lithuania and Riga (concerning Polotsk) Peshchak, Hramoty, 139-140

1427

Boris Aleksandrovich of Tver’ and Vitovt of Lithuania DDG No.23, 62-63; Peshchak, Hramoty, 121-123 (with wrong date: 1393)

1430

Ivan Fedorovich of Riazan’ and Vitovt of Lithuania DDG No.25, 67-68

230


1442

Ivan Vladimirovich of Pronsk and Vitovt of Lithuania DDG No.26, 68-69

1442

Fedor L’vovich of Novosil-Odoev and Kazimir of Lithuania DDG No.39, 117-118

1445

Dmitrii Iur’evich of Galich and Vasili and Fedor Iur’evichi of Suzdal’ DDG No.40, 119-121; SGGD Vol.1 No.62, 135-137

1449

Boris Aleksandrovich of Tver’ and Kazimir of PolandLithuania DDG No.54, 163-164

1459

Ivan Iur’evich of Novosil-Odoev and Kazimir of PolandLithuania DDG No.60, 192-193

1461

Ivan Andreevich of Mozhaisk and Ivan Vasil’evich of Serpukhov-Borovsk DDG No.62, 199-201

1483

Mikhail Borisovich of Tver’ and Kazimir IV of Lithuania DDG [no number], 483-484

1496

Ivan Vasil’evich of Riazan’ and Fedor Vasil’evich of Riazan’ DDG No.84, 332-341; SGGD Vol.1 No.127-128, 320-329 6. Iarlyks of Tatar Khans

1266-1272

Mengu-Temir to Iaroslav Iaroslavich of Novgorod GVNP No.30, 57

1267

Mengu-Temir to metropolitan Kirill SGGD Vol.2 No.2, 5-6; PRP III, 467-468; A.P. Grigor’ev, Sbornik khanskikh iarlykov russkim metropolitam, S.Peterburg, 2004, 44123

1347

Taidula (wife of Dzhanibek Khan) to bishop Ioann of Sarai (Grigor’ev) or to metropolitan Ioann (traditional identification of addressee) PRP III, 466-467; Grigor’ev, 52-53

123

Grigor’ev’s texts are Russian translations of Turkish texts and differ very significantly from the texts in Old-Russian which scholars had been using hitherto.


231

1351

Taidula to metropolitan Feognost SGGD Vol.2 No.9, 11-12; PRP III, 468-469; Grigor’ev, 65-66

1354

Taidula to metropolitan Aleksei SGGD Vol.2 No.10, 12; PRP III, 470; Grigor’ev, 70-71

1357

Berdibek to metropolitan Aleksei SGGD Vol.2 No.11, 12; PRP III, 469; Grigor’ev, 114-115

1379

Biulek (Grigor’ev) or Tiuliak to metropolitan Mikhail SGGD Vol.2 No.12, 13-14; PRP III, 465-466; Grigor’ev, 201-202

1393

Tokhtamysh to king of Poland (peace proposal) Peshchak, Hramoty, 112-113

1409

Edigei Emir to Vasilii Dmitrievich of Moscow SGGD Vol.2 No.15, 17-18

1484

Murtazy to Kazimir of Lithuania V.M. Rusanivs’kyi (ed.), Ukrains’ki hramoty XV st., Kiev, 1965, 137-138

Chapter 8 Human Rights in Russian Legal History 1. Introduction On 5 September 1991, the Congress of People’s Deputies of the USSR adopted the Declaration of the Rights and Freedoms of Man. The Preamble to this document explicitly referred to the Universal Declaration of Human Rights of 1948. Also, the following provisions, particularly Articles 1 and 2, made clear that the 1991 Declaration presented a complete break with the ‘socialist’ concept of human rights, as embodied in the various Soviet constitutions. In the wake of the still existing USSR, Russia adopted its own Declaration on the Rights and Freedoms of the Person and the Citizen on 22 November 1991. The latter Declaration found its way into the Constitution of the Russian Federation. Thus, Russia unequivocally joined the mainstream of human rights legislation, taking its lead from the Universal Declaration of 1948. The Russian Constitution has become a member of a global family of constitutions, united by a certain consensus on human rights, finding its most authoritative expression in the Universal Declaration of 1948. The ancestry of the Universal Declaration has been extensively researched and analyzed. It will be sufficient to highlight only the main historical outline, which to a great extent coincides with the history of Western civilization. This chapter will address the question: Is there also in Russian legal history something that could be regarded as building material for a modern concept of human rights? But before addressing this question we ought to identify the roots of the modern human rights concept, albeit in a general and concise manner.

2. The Universal Declaration of Human Rights of 1948 The Universal Declaration was proclaimed by the General Assembly as a common standard of achievement for all peoples and all nations. The internal logic of other declarations, such as the American Bill of Rights, would also lead to the conclusion that the rights enumerated ought to be considered as universally applicable, but the legal character of such documents as expressions of the sovereign will of individual states would deny them such universality.

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The paramount position of the Universal Declaration is explicitly recognized by its European counterpart, the Treaty of Rome of 1950, and also, as mentioned above, by the USSR and Russian Declarations. It is especially the Preamble to the Universal Declaration which provides more insight into the philosophical underpinnings of the following text. Its starting-point is that recognition of the inherent dignity of every human being is the foundation of freedom, justice and peace. It refrains understandably from explaining why this dignity is inherent. The US Declaration of Independence of 1776 had stated that “all men […] are endowed by their Creator with certain inalienable rights”, but such a position would obviously not be generally acceptable in an international assembly in 1948 of which explicitly atheist states such as the USSR, Ukraine and Belorussia were members. Instead, a more pragmatic tone was adopted: without recognition of human rights, one reverts to barbarism (this was just three years after the Second World War); human rights promote friendly relations between nations, social progress and better standards of life; so human rights are obviously a good thing and anyway everybody seemed to agree on the following catalogue. The Preamble also referred to the Four Freedoms (of speech and religious worship, from fear and want), and the catalogue of rights and freedoms of the Universal Declaration may be viewed as an elaboration of the famous statement of the Four Freedoms by US President Franklin D. Roosevelt in 1941. When the human rights package of the Universal Declaration is compared with the classic enumerations of the American and French revolutions (contained in the Declaration of Independence, the US Bill of Rights, and the Déclaration des droits de l’homme et du citoyen), the main difference is in the addition of the socio-economic rights, summarized as the freedom from want. The latter rights were strongly emphasized in the various Soviet and other communist constitutions, in accordance with the Soviet Marxist theory of human rights. But, modern Western constitutions, such as the Constitution of the Federal Republic of Germany, also explicitly recognized the state’s duty to assume responsibility for the welfare of the individual, by stipulating the latter’s right to education, work, social protection, rest, health care, and other facilities, in order to lead a life in accordance with human dignity. Older 19th century constitutions had already acknowledged that the state was obliged to produce certain basic provisions in this respect, such as primary education and care for the indigent. These developments were obviously prompted by a growing awareness that if the individual’s right “to pursue happiness” (in the words of the US Declaration of Independence) was to be more than empty words, the state would have to take certain steps towards enabling the individual to realize his potential.

Human Rights in Russian Legal History

235

To go one step further, one could argue that the requirement of the state’s active behaviour, in order to allow the individual citizen to lead a life commensurate with his inherent dignity, had been implicitly recognized from the time the state started to emerge. It had always been accepted that the primary duty of the state was the preservation of peace—externally, by defending its citizens against dangers from outside, and internally, by maintaining peace among its citizens. Once the state had been equipped with the necessary means to carry out this task, it became the most powerful agent in society. This again posed the threat of abuse, and groups of citizens and individual citizens felt the need to protect themselves. The classic catalogues of human rights attempted to circumscribe the state’s rights in interfering with the lives of the citizens. They systematized and consolidated all kinds of practices, institutions and agreements which had emerged in earlier times.

3. Equality The concept of the equality of human beings occupies a special place within the system of human rights. It was already prominent in the American and French declarations of the 18th century (“We hold these truths to be self-evident, that all men are created equal […]”). Equality generally precedes enumerations of human rights as a general precondition of these rights. It does not seem to be a right itself, although certain rights flow from it (e.g. the right of women and men towards equal treatment, the right of parties to be treated as equals in the administration of justice). Although its prominence in the 18th century debate can easily be explained historically (as a reaction against the state of affairs under the ancien régime), its philosophical underpinnings are not as obvious as those of the classic human rights (where one may point, according to one’s views, to the divine will, the law of nature, reason, practical necessity). It is undeniably self-evident that all human beings (provided they have not been cloned) are unequal, and this is implicitly recognized in the various provisions defining equality of rights: because women and men are not equal, the law has to command that they must still be treated as equals, at least in most cases. Plain common sense sometimes demands that people are not treated equally. The modern practice of implementing anti-discrimination legislation shows that a complicated weighing process is often required to determine whether unequal treatment, i.e. discrimination, is justified or not. Undeniably, equality possesses a strong emotional appeal; inequalities have to be justified. There is an obvious parallel and, in fact a strong

236


connection, with democracy. The philosophical foundation may be shaky, but all other alternatives are less attractive.

4. Taming the State: The Dispersal of Power The dilemma is simple. The state, in order to carry out the tasks useful to society and the individual (and these tasks include the active promotion and protection of human rights), needs the proper tools—power. But, this power may also be used to harm the interests of particular social groups and individuals. Therefore, it has to be regulated, restricted by rules, tamed. This inevitably implies that power is taken away from the state and given to other agencies or persons. The justification for doing so may be found in various theories and ideologies. If the state loses too much power, it stops being effective and this would also be harmful to society and the individual. An acceptable balance has to be found. After the terrorist attacks known as “9-11”, the dilemma has acquired renewed urgency in searching for the right balance between protecting the citizen against terrorism and, on the other side, handing over the citizen’s private life to the scrutiny of the state. The problem may also be viewed from a more concrete and historical perspective. States emerge at a particular point in history. The power of the early state is usually limited to maintaining external and internal peace. As society becomes more complex, the state assumes more responsibilities. In this process, countervailing powers emerge and become institutionalized. This process is also dynamic, or perhaps better: dialectic, in the sense that new developments call forth reactions which again feed new movement. The Separation of Powers The theory of the separation of powers as expounded by Montesquieu is perhaps the most comprehensive and widely accepted instrument for regulating and dissipating the powers of the state. The core element of the theory is that the powers of the state should be distinguished as legislative, executive and judicial, and that these three powers should be entrusted to separate and mutually independent agencies, which are generally (and confusingly) also called legislative, executive and judicial powers. The separation of powers does not actually limit the powers of the state, but it breaks up the state into three distinct agencies. The vehement rejection of the separation of powers by the totalitarian ideologies of nationalsocialism (and fascism, related but different) and Soviet communism has in fact strengthened its prestige, after it had come under criticism during the first half of the 20th century.


237

Although many modifications have been suggested and sometimes implemented since the theory was first put forward in 1748, its main tenets still stand firm and cannot be disregarded by any constitution which regards itself as civilized. Due Process The judicial power of the state, especially, but not exclusively, in criminal matters, will often appear to be the most invasive one, from the perspective of the individual. Long before there was any talk of human rights, people sought guarantees against arbitrary or excessive intervention in their lives by the authorities entrusted with the investigation, prosecution and punishment of crimes and with other duties in the judicial sphere. Once catalogues of rights began to be written down, a considerable portion of them was always devoted to defining and limiting the powers of the state in this respect. Separation of Church and State The oldest known states, of the Ancient Near East, were theocratic in nature. The religious and secular spheres were fused; worship of the gods, the economic organization of society, enhancing the power and military expansion of the state—together, they constituted a single block of tasks, backed up by the sacred powers of the king, the personification of the divinely instituted order. In this sense, the ancient kingdoms of Mesopotamia can be regarded as the first totalitarian states. A clear separation between the religious and secular spheres emerged in Classical Greece, producing the first manifestation of a uniquely European civilization, because one can argue that the maintenance of a clear distinction between the world and the human social relations which are part of this world, on the one hand, and our relations with a reality (real or imagined) outside this world, on the other, constitutes the basic characteristic feature of Western civilization. The arrival of Christianity provided a strong boost to this distinction. It would, however, take many centuries before the separation of church and state as we know it would be realized. When the emperor Constantine converted in 312, he changed his religious allegiance, rather than his proprietorial attitude towards the empire’s religion. This attitude remained dominant among his Byzantine successors during the next eleven centuries. In the West, in the course of the Middle Ages, the pope and the emperor struggled for supremacy in the affairs of the world, each anchoring his position in a religious world view. Similar struggles took place in other European kingdoms and principalities. With hindsight, it is not difficult

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to understand that the battle had to end undecided, because neither side could ultimately be beaten. The result was a pragmatic settlement by which certain matters were left to the state and others to the church. As this arrangement depended in good part on the relative strengths of the parties, rather than on fundamental consensus, the status quo was to prove unstable in the following centuries. Nevertheless, the investiture struggle of the 11th century planted the seeds for the separation of powers.1 The Reformation added a new aspect to this relationship. If the initial outcome of the religious wars was the rule of cuius regio, illius et religio (the state or the ruler determines the religion of the people), in the end the conclusion was reached (in some cases very late) that any other solution than letting the individual choose his own religion would lead to more tension and strife that enforced ideological unity would be worth. The state withdrew almost completely from the realm of religion. Christian Anthropology and the Freedom of Conscience Criticism of past and present religious intolerance, or the persecution of heretics and non-conformists and other excesses, should not obscure the fact that the overall effect of Christianity in Europe on the development of human rights has been overwhelmingly positive. The reason for this is obviously that the Christian view of man implies that every individual is of infinite value and is gifted with a free will and conscience. While all forms of human community, large ones such as the state and small ones such as marriage and the family, are tied to this earth and will disappear in time, the individual is destined for eternal life.2 Christian teaching acknowledges (even if the actual behaviour of church leaders did not always conform to the principle professed) that a person is morally bound to follow his conscience, even where the whole world would condemn the action dictated by conscience. Dictates of conscience are intrinsically unsuitable for legal evaluation. It would obviously be impossible for the law to permit everybody to act according to his conscience, without risking legal sanctions. On the other hand, respect for the individual and his conscience demands that the law is cautious and reticent where there are serious grounds for assuming that a person is following his conscience. A sensible and reasonable balance will have to be found. The interests of other individuals will always be a major factor in making such decisions. 1

2

See H.J. Berman, Law and Revolution. The Formation of the Western Legal Tradition, Cambridge, MA/London, 1983, Ch.8: “The Concept of Secular Law”, 273-294.

In the views of mainstream Christian denominations, such as the Roman Catholic and Orthodox churches, the Church, as the community of all the faithful, living and dead, is also regarded as eternal.


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The term “freedom of conscience” is actually unsuitable in reference to a human right, because conscience must be considered as free ab initio and does not need legal approval; neither is legal approval meaningful per se, because conscience operates outside the sphere where law is effective. Freedom of conscience, however, may be seen as convenient shorthand for several related freedoms which are legally relevant and at the same time connected with the freedom of conscience. Conscience may dictate a person to express openly his opinions and feelings (freedom of speech, freedom of the press), especially to practice his religion (freedom of religion); to engage in social and political activities (freedoms of assembly and association, various political freedoms). The relationship between church and state is of particular importance in connection with the freedom of conscience and related rights. Although religion is often blamed for fostering intolerance, the ensuing repression, at least in Europe, would, as a rule, be effected by the state. The different Christian churches usually restricted themselves to defining the views and actions of particular individuals as contrary to church doctrine. This of course does not free the churches of all blame for intolerance, but it is a matter of fairness to establish that it was normally the secular society and its authorities who were unwilling to tolerate certain forms of heterodoxy and who would then take the necessary steps to end the manifestation of them. Finally, one might also add here that the ideological roots of human rights go even further back, into Greek antiquity. The famous words which Sophocles put in the mouth of Antigone still ring crystal-clear through the ages.3 Recalling what happened to Antigone, or to Socrates for that matter, one easily sees that the tension between high ideals and grim reality is something of all times. The underlying ideas of the Greeks were transmitted through Roman authors, such as Cicero, to medieval philosophers, such as St. Thomas Aquinas, and hence to post-Reformation thinkers. Sharing Power: Original Democracy No serious historian or social anthropologist would subscribe any longer to the simple schedule proposed by Marx and Engels, according to which mankind traversed a straight trajectory from primitive communism to the most advanced and complicated forms of capitalism. Nevertheless, the idea that societal forms have generally displayed a development from simple 3

“That order did not come from God. Justice, that dwells with the gods below, knows no such law. I did not think your edicts were strong enough to overrule the unwritten unalterable laws of God and heaven, you being only a man. They are not of yesterday or to-day, but everlasting, though where they came from, none of us can tell.” Sophocles, The Theban Plays, (transl. E.F. Watling), The Penguin Classics.

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and small-scale to complex and large-scale seems eminently plausible. The small scale of early and primitive social formations inevitably involved the absence of great social differentiation; there were just not enough people to make up an extensive hierarchy. This means that in the beginning there must have been a considerable measure of equality and democracy. Subsequent developments were not as straightforward as suggested by Marx and Engels. But, no matter what persons or groups or classes took control over communal affairs, the idea of the “people” as an interested actor, if only backstage, never quite disappeared. Time and again, and especially in a power vacuum, it would make a new appearance, in many different shapes: as an orderly assembly, a spontaneously formed militia, a riotous crowd, etc. It was known in the aristocratic society of Homer, although he was not in favour of it. 4 The oldest historical records of the Germanic and Slavic peoples also contain numerous reports of popular assemblies (for Russia, see the chapter on “Popular Assemblies in Early Medieval Russia”).5 The survival, in some form, of the democratic idea through the ages has meant that power had in some way to be shared with the people. At times, the idea has become submerged, but it always resurfaced. In the modern era, the people is usually regarded as the ultimate source of legitimate power, and in this sense the democratic idea has been completely victorious. This, however, has led to a curious paradox. The only practical way to determine the will of the people is to accept majority rule. Democracy then may also become a threat to human rights, if the majority behaves in an autocratic manner. Sharing Power: The Feudal System Most people would not immediately think of the emergence of the feudal system in Europe as an important step in the development of human rights. It was, nevertheless. The feudal contract established mutual rights and duties between lord and liegeman. When the feudal lord would appear simultaneously as the territorial ‘sovereign’, the feudal relationship would 4

5

See, especially, verses Β 50-54 of the Iliad which describe the convocation of a general assembly of the army, after king Agamemnon had first consulted his own council and verses 203-205: “In no way shall all the Greeks lord it around here! Democracy [lit. ‘rule by many’] is not a good thing, one only should rule, one should be king, to whom it was given by Zeus according to his unfathomable judgment” (words spoken by Odysseus). One of the oldest is Tacitus’ Germania, which relates (in ch.11), in a remarkable parallel to Homeric usage, that the chiefs would meet first, before the general populace assembled (De minoribus rebus principes consultant, de maioribus omnes, ita tamen, ut ea quoque, quorum penes plebem arbitrium est, apud principes praetractantur).


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be of great importance in articulating the constitutional structure of the ‘state’. Tribal chiefs and kings would operate in a much less structured and hazier constitutional environment of tribal custom. The words “sovereign” and “state” have been put between quotation marks, because it is precisely the feudal system which makes these terms ambiguous. State power and sovereignty appeared to be dispersed according to a pyramidical model. At the summit one would find the emperor or king (and some popes even claimed to be above them), then there would be a layer of higher lords (bishops, dukes, counts) and then one or more layers of lower lords, all of them connected through feudal relationships and sharing to some extent the possession of public power. Apart from the political effect of diluting the absolute power of the ruler, the feudal system had an important ethical component which can also be considered to have contributed to human rights thinking. The good knight, as the embodiment of the medieval chivalrous ideal, was required to be just and fair, faithful to his lord, and to protect and support those subordinate to him. Before a regular civil service as the basic interface between the citizen and public power had come into being, the knight already offered an ideal model of how a civil servant ought to behave. In its dilution of sovereign power, feudalism can also be seen as a forerunner of federal systems, where the power of the state is broken up between several levels. Germany is the most obvious case in point, where Hitler’s Third Reich was the only centralized interruption in a long history of feudal and federal division. Sharing Power: Urban Freedom Towns have existed since prehistory. The city-state of Ancient Greece in particular must be regarded as an important milestone in the development of civic liberty. But, it was especially the Middle Ages which brought the legal articulation of the special position of towns and their populations. Although they did retain their place within the feudal pyramid, their relationship with the territorial rulers was not the same as that of an ordinary liegeman. The freedom granted to the town and its people was the most direct forerunner of later bills of rights. In stark economic terms, the relationship between the town and the territorial ruler meant that the town bought a measure of independence from the prince, adding yet another element to the complex system of power sharing which was so typical of medieval times.

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Rationalism and Enlightenment Among the factors which have favoured the emergence of the modern system of human rights, as briefly explained above, are certain concrete institutions, while others appear as broad systems or general attitudes. The combined dynamics of these factors produced a process, a combination of currents, which eventually united in a comprehensive vision of human rights. This took place in the course of the 18th century, the Age of Enlightenment, when the rational observation and analysis of reality were taken as the starting-point for constructing mutually coherent views of various aspects of this reality. The proponents of these views were not necessarily atheists, but they agreed in putting aside religious revelation as a source of knowledge and a guide to the understanding of this world. Nature, as a convenient name for the reality of this world, had to be examined to discover its inherent characteristics, the Laws of Nature. It would be entirely feasible, as, for instance, the Founding Fathers did, to look for the legitimation of this natural order in the existence of a Creator, but another possibility would be to consider nature and its laws as axiomatic. If previous centuries had regarded God as the source of all law and justice, which would lead to the recognition of some kind of God-given natural law, the Age of Enlightenment saw a new version of this concept: certain basic concepts and institutions in the field of law were considered as evolving from reason and therefore, in this sense, constituting a system of natural law. It should also be pointed out that, with regard to the ancestry of human rights, rationalism, like the preceding societies which were dominated by a religiously determined world view, has a mixed record. It would be sufficient to mention Marxism, which in its embracing of dialectical and historical materialism was an obvious offshoot of rationalism, while its Soviet version developed a doctrine of human rights which actually came down to its denial or reversal.6 Another case in point would be the separation of powers, which can be defended on rational grounds as an 6

It would exceed the framework of this chapter to develop this argument here. I refer to the vast literature on the subject of “Soviet human rights”, including my own contributions to it, e.g. “Law and Political Dissent in the Soviet Union”, D.D. Barry [a.o.] (eds.), Contemporary Soviet Law [Hazard Festschrift], The Hague, 1974, 55-68; “Grundrechte in zweierlei Sicht: Grundrechtsdiskussion zwischen Staatsrechtlern und Dissidenten in der Sowjetunion”, F.C. Schoeder & B. Meissner (eds.), Verfassungs- und Verwaltungsreformen in den sozialistischen Staaten, Berlin, 1978, 101-109; “The Soviet Human Rights Doctrine in the Crossfire between Dissidents at Home and Critics Abroad”, Vanderbilt Journal of Transnational Law, Vol.13 (1980), 451-466.


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effective instrument to prevent tyranny and rejected on the same grounds as promoting ineffectual government.7

5. The Position of Russia As has been argued above, individual human beings need and are entitled to a certain basic package of rights, in order to allow them to live in accordance with their innate dignity. There does not seem to be general agreement on the source or origin of these basic rights, but for the purpose of setting up a workable system of basic rights a general consensus on what should be included is sufficient. The primary instrument for creating such a system is the limitation of the powers of the state, because the state, as the creator of the legal system, is the most powerful actor in society. In this context, “state” should be understood to embrace all agencies which exercise public power, not only the national (sovereign) state, but also international and supranational organizations, and lower level public authorities. The present ideology of human rights rests therefore on two pillars: a concept of the unique value of the human individual, which endows him with certain inalienable rights, and the need to limit public power (and in this respect the theory of the separation of powers occupies a central place). In what form have these ideas been present and active in Russian legal history?

6. Church and State in Russia8 The First Centuries Christianity reached Russia through Byzantium, a fact of fundamental importance for Russian history in general and particularly for the churchstate relationship. The church-state tensions which gave rise to the investiture conflict did not seriously affect Byzantium at the time of its greatest ecclesiastical influence on the fledgling Russian church. A close 7

8

The latter view is shared, albeit on different ideological grounds, by the Soviet Marxists-Leninists and most of the excessively presidential regimes of the ex-Soviet republics. The principal modern Russian works which deal directly with this theme are Ia.N. Shchapov, Gosudarstvo i tserkov’ Drevnei Rusi X-XIII vv., Moskva, 1989 (hereafter: Shchapov, Tserkov’), and R.G. Skrynnikov, Gosudarstvo i tserkov’ na Rusi XIV-XVI vv., Novosibirsk, 1991, and at a more popular level: R.G. Skrynnikov, Krest i korona; Tserkov’ i gosudarstvo na Rusi IX-XVII vv., S.Peterburg, 2000 (herafter: Skrynnikov, Krest).

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symbiosis between church and state was the most important legacy of Byzantium to Russia, although developments in Russia followed a course of their own.9 It would not be unreasonable to assume that political considerations played a considerable role in the decision of the Kievan grand prince Vladimir Sviatoslavich to adopt Christianity as the state religion around the end of the 10th century. As a consequence of this step, some provision had to be made for the material maintenance of the church and its personnel. In Western Europe, the basic solution of this problem had been the incorporation of the church into the feudal system, by making grants of land to bishops and abbeys. The Russian approach was mainly to make income directly available to the church through the establishment of tithes and by assigning to the church the income from the execution of certain public duties. The earliest and principal monument of this policy is the so-called Church Statute of Vladimir.10 The oldest part of this text does indeed go back to the time of the first Christian grand prince of Kiev, later known as St.Vladimir, i.e. the end of the 10th and the beginning of the 11th century. The two main innovations introduced by the Statute were the assignment of one-tenth of the income of the prince (the tithe) to the church,11 and the transfer of jurisdiction in a number of cases to the church. The latter category generally involved matters where infractions of the newly introduced Christian morality were turned into criminal offences and also questions of matrimonial, family, and inheritance law. In what was probably a somewhat later addition to the Statute, full jurisdiction concerning church personnel (clerical as well as lay persons) and control over the system of weights and measures were also transferred to the church. The Church Statute of Vladimir remained the fundamental charter regulating church-state relationships for the centuries to come. It put 9

10

11

A review of the treatment of the church-state relationship in Russia, including a discussion of various Western viewpoints, is Iu.S. Pivovarov, “Tserkov’ i gosudarstvo v istorii dorevoliutsionnoi Rossii (modeli istoricheskikh vzaimootnoshenii)”, I.A. Isaev & O.A. Omel’chenko (eds.), Istoriko-pravovye voprosy vaimootnoshenii gosudarstva i tserkvi v istorii Rossii, Moskva, 1988, 120-146.

On the Church Statutes of Vladimir and his son Iaroslav, see Ia.N. Shchapov, Kniazheskie ustavy i tserkov’ v Drevnei Rusi XI-XIV vv., Moskva, 1972, and id., Drevnerusskie kniazheskie ustavy XI-XV vv., Moskva, 1976 (texts in the latter volume); PRP I, 235285 (text, and comments by A.A. Zimin); RZ I, 134-208 (text, and comments by V.L. Ianin); D.H. Kaiser, The Growth of the Law in Medieval Russia, Princeton, 1980, 50-60; id. (transl. & ed.), The Laws of Rus’-Tenth to Fifteenth Centuries (text and English translation), Salt Lake City, 1992, 41-50; M. Szeftel & A. Eck (eds.), Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 229-266. On the Old-Russian tithe, see Shchapov, Tserkov’, 76-87.


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the church in a very advantageous material position and granted it an important role in the judicial system, but all this at the expense of the church’s independence. The church was turned into something close to a government department for religious affairs, a position the Russian church has never fully been able to escape from. The second major church statute from Kievan times is the one ascribed to Vladimir’s son Iaroslav, also known as the Wise. It can be dated fairly exactly as having been enacted between 1051 and 1054. It represents a kind of code of family and criminal law which is more detailed than its predecessor and therefore of greater interest to Russian legal history, but it did not alter the overall tenor of the Statute of Vladimir. Other Russian princes issued similar statutes concerning the position of the church in later years; these laws were based mainly on the Church Statutes of Vladimir and Iaroslav.12 In other respects, the early Russian church maintained strong ties with Byzantium. The metropolitan of Kiev was appointed by, or at least needed the approbation of the patriarch in Constantinople, and of the twenty-three metropolitans of the Russian church before the Mongols overran Kiev in 1240 only about three were of Russian extraction.13 By having his own man in Kiev, the patriarch of Constantinople, and through him the emperor of Byzantium, could exercise powerful influence in Russia. The largely successful attempts of Kievan rulers to turn the Russian church into a handmaiden of the state should also be viewed in that light. Control over the Russian church was a field of battle between the emperor and the grand prince. Church and State under the Mongols Although Russia had lived in a hostile and often warlike symbiosis with various steppe nomads (Khazars, Pechenegs, Polovtsians) for centuries, the sudden appearance of the Mongols in 1237 and the complete subjugation of Russia within a few years constituted a watershed. A completely new system of power relationships emerged and this inevitably also affected the relations between church and state. Byzantine involvement did not end, but unquestionably became a factor of secondary importance. 12

13

The Church Statute of prince Vsevolod (probably of Novgorod), dating from the 12th or 13th century; the Church Statute of Sviatoslav Ol’govich of Novgorod of 1137, the Charter of Rostislav Mstislavich of Smolensk (probably before 1137); the Church Statute of Lev Danilovich of Galicia of 1131, a.o. Further references in note 10. Shchapov, Tserkov’, 191-206, has given a detailed list of the early Kievan metropolitans.

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In constitutional terms, the Mongol-Tatar14 khan was the overlord, or the sovereign in modern terminology. Contemporary Russian sources would refer to him as the tsar, the caesar, a title which until then had only been enjoyed by the Byzantine and Holy Roman emperors. The Russian princes who in their numerous sub-dynasties continued to rule the many principalities into which the Kievan empire had dissolved, depended on the khan’s confirmation and owed him military and fiscal allegiance (see, also, the chapter on “The Treaties of Medieval Russia”). Western and Russian writers through the ages have put great stress on the ferocity and cruelty of the Tatars, but it should be obvious that primitive barbarians could never have managed successfully to maintain for several centuries the largest empire (at least in terms of territory) history has known.15 To retain his eminent position, the khan did not rely only on military superiority, he also engaged in subtle manoeuvring to play his Russian subject princes against each other. One of his favourite ploys was the extension of generous privileges to the Russian church. A small number of charters, called iarlyki, have survived, addressed to the metropolitan of Moscow (the principal see of the Russian church had by that time been moved from Kiev to Moscow), in which the khan granted the church complete freedom of taxes and other benefits (see the chapter on “The Treaties of Medieval Russia”). Religious tolerance among the Tatar rulers even went so far as to allow the establishment of a new bishopric in Sarai, the centre of Tatar power, to administer to the needs of all orthodox Christians in that region. The Russian church understandably used its privileged position to further its own agenda. This included support for the efforts of the leading princes (increasingly the grand prince of Moscow) to free Russia from Tatar overlordship, but also avoidance of hostilities with the Tatars. In this respect, the church was probably inspired by its links with the emperor in Constantinople who, already in much trouble because of the 14

15

The empire of Chingis-Khan and his descendants was Mongol in its origins but soon absorbed a multitude of other ethnic, mainly Turkic groups. In language and culture, the latter became dominant in later years, hence the relative interchangeability of “Mongol” and “Tatar”.

A comparison with the similar empire of Attila the Hun, eight centuries earlier, is instructive. The immediate effect of an army of steppe nomads, mobile, numerous and well-equipped, on the more peaceful and urbanized European world was similar; but after Attila’s death in 453 his empire evaporated within a few years for lack of internal consistency. For modern Western views of the Mongol-Tatar empire, see C.J. Halperin, The Tatar Yoke, Columbus, Ohio, 1986, and D. Ostrowski, Muscovy and the Mongols: Cross-cultural Influences on the Steppe Frontier, 1304-1589, Cambridge, MA, 1998.


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activities of the Crusaders, was anxious to maintain peaceful relations with the khan.16 The Church in Muscovy As the grand prince of Moscow succeeded in suppressing and eliminating the ruling princes of other Russian territories, the ties between the Russian church, particularly its official leader, the metropolitan, and the ruler of Muscovy grew closer. Occasionally, fierce conflicts between the prince and the metropolitan would flare up; but, on the whole, the Russian church leadership gave strong support to Moscow’s hegemonic buildup.17 In the not infrequent dynastic conflicts within the ruling family, the metropolitan and other church leaders often played a decisive role. But, as the Moscow grand prince was able to consolidate his position, becoming ever more the absolute ruler of Russia, the church slipped back into a more modest place. Byzantine influence on the Russian church was ultimately reduced to zero by the fall of Constantinople in 1453. But, it was long after the Moscow grand prince had started to use the title of tsar’ (caesar) that the metropolitan assumed the title of patriarch (1589). If the Russian church was able to provide the Moscow grand prince with the required religious and ideological legitimation of his dignity, it was also a strong pillar of his power on account of its wealth in land. The metropolitan and the bishops were the most important land owners after the prince and this enabled them to support the prince financially and through the provision of military manpower. The great monasteries with their vast holdings should be mentioned in the same breath, first of all the famous Trinity monastery, north of Moscow. It owed its prestige to the remarkable Sergei of Radonezh (1321-1391), who not only initiated major monastic reforms, but was also the principal advisor and supporter of prince Dmitrii Donskoi in the latter’s wars with the Tatars. By the middle of the 15th century, the Trinity monastery had become the biggest landowner in Russia. The tradition of compliance and submissiveness characterizing the history of church-state relations in Russia was only occasionally enlivened by the appearance of strong personalities such as Sergei of Radonezh or the metropolitan Filipp. The latter unwillingly accepted the highest post in 16 17

A thesis put forward by Skrynnikov, Krest, 41.

According to Borisov, who devoted a monograph to church-state relations in Moscow during the period in question, the Moscow metropolitan, after initial lukewarm support, began to bring the church behind the grand prince from about the middle of the 14th century; N.S. Borisov, Russkaia tserkov’ v politicheskoi bor’be XIV-XV vekov, Moskva, 1986, 50-78.

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the Russian church at the beginning of the reign of terror, the Oprichnina, of Ivan the Terrible. After three years of courageous opposition, he was robbed of his dignity and murdered in 1569.18 The extinction of the ruling line of the Rurikid dynasty with the deaths of Ivan IV (the Terrible) in 1584 and of his incompetent son Fedor in 1598 started the Time of Troubles (Smutnoe vremia), which was to last until the election of a new tsar, Mikhail Romanov, in 1613, by the Zemskii Sobor (Land Council). One of the constituent parts of the Zemskii Sobor was the Sacred Council (Osviashchennyi Sobor), consisting of the patriarch, the metropolitans, the (arch)bishops, and the abbots of the principal monasteries. Although a Land Council had already been convoked by Ivan the Terrible, it acquired paramount importance during the Time of Troubles, when it emerged as the residual source of sovereignty (more on the Zemskii Sobor below). The general confusion during the Time of Troubles also extended to church-state relations and this is well illustrated by the origins of the Romanov dynasty. The father of the first Romanov tsar, Fedor Nikitich, had been one of the leading boyar opponents of tsar Boris Godunov. The latter forced Fedor in 1600 to accept the tonsure and become a monk, under the name of Filaret. After the death of Boris in 1605, Filaret bounced back and was promoted to metropolitan of Rostov by ‘tsar’ Pseudo-Dmitrii I (lzhe-Dmitrii I). Three years later, another impostor, Pseudo-Dmitrii II (known in Russian history as the “thief of Tushino”) made him patriarch, although there was a legitimate patriarch, Hermogen. When the Polish army, which had occupied Moscow, retreated in 1612, they took Filaret along as a prisoner. In 1619, Filaret was finally released and, as Hermogen had died in the meantime, could assume the patriarchate. With his son tsar Mikhail, he shared the title of “Great Sovereign” (Velikii Gosudar’) and, in fact, ruled Russia in his son’s stead until his death in 1633, the only time in Russia when supreme power in the state and the church were united in the hands of one man. During the reign of the first two Romanov tsars, the Zemskii Sobor convened regularly. Its major legislative achievement was the adoption of the Law Code of 1649 (Sobornoe Ulozhenie), one of the most important milestones in Russian legal history.19 The comprehensive compilation of the complete legislation of Russia in the 19th century, the Complete 18 19

Cf. Skrynnikov, Krest, 263-288.

Text and commentary (by K.A. Sofronenko) in PRP VI; also in RZ III. Further: A.G. Man’kov (ed.), Sobornoe Ulozhenie 1649 goda; tekst, kommentarii, Leningrad, 1987; M.N. Tikhomirov & P.P. Epifanov, Sobornoe Ulozhenie 1649 goda, Moskva, 1961. German translation by C. Meiske, Das Sobornoe Uloženie von 1649, Halle-Wittenberg (2 vols.), 1985. Russian text and English translation by R. Hellie: The Muscovite Law Code (Ulozhenie) of 1649, Part 1: Text and Translation, Irvine, CA, 1988.


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Collection of Laws (Polnoe Sobranie Zakonov) took the Code of 1649 as the starting-point. The Code of 1649 also affected the Russian church, in that it effectively prevented further growth of land-owning by the church (Ch.17 art.42). The third church leader, after Filipp and Filaret, to tower over the monarch himself, was Nikon. Of humble origin, he was elevated to the patriarchate by Aleksei Mikhailovich in 1652. He quickly succeeded in dominating the moderately gifted tsar. His boundless ambition and energy found not only expression in embarking on incisive church reforms, but also in involving himself deeply in the internal and external policy of the country. All of this was backed up by a comprehensive theocratic view of the church-state relationship and the role of Russia in the world. In the end, his lack of tact and blinkered fanaticism proved to be his undoing. He was deposed in 1666 by a church council in which also the patriarchs of Antioch and Alexandria took part. His church reforms however stood and caused the great schism in the Russian church, known as Raskol. The tsar supported the majority trend in the Russian church which had accepted Nikon’s reforms; for the Old Believers, the Russian state had become the state of the Antichrist.20 The Special Status of Novgorod Novgorod the Great, in the north-western corner of the Kievan empire, already started to develop a special position in the times of the Kievan grand princes. Although there was a nominal prince in Novgorod, his functions were soon reduced to those of commander of the armed forces. Subsequently, through the gradually settling Novgorod custom of inviting and dismissing princes at will, the position of the Novgorod prince became marginalized. For centuries, until it was finally subdued by Moscow in 1478, Novgorod constituted a de facto republic, ruled by its popular assembly, the veche, dominated by boyar clans, and presided over by its bishop (archbishop since 1165). The position of the bishop was to some extent comparable to that of the doge of Venice. His temporal powers and prestige were considerable. Uniquely among Russian bishops, he was popularly elected by the veche (the election also included the throwing of lots). (See, also, the chapter on “Popular Assemblies in Early Medieval Russia”.) The church-state relationship in medieval Novgorod could, therefore, be summarized as a complicated balance between the popular assembly, aristocratic clans (who provided the chief officials, the posadnik or mayor

20

Cf. Skrynnikov, Krest, 386-402; N.V. Kozlova, “Zakonodatel’stvo o raskole i praktika ego realizatsii v gorodskoi srede vo vtoroi chetverti XVIII v.”, V.A. Kuchkin (ed.), Rossiia v srednie veka i novoe vremia [Milov Festschrift], Moskva, 1999, 240-255.

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and the tysiatskii or military commander), the Council of Lords (Sovet Gospod, consisting mainly of the posadnik and tysiatskii and their predecessors), the (arch)bishop, and occasionally the ruling prince or his representative (the namestnik). The Church in the Russian Empire The drastic reforms introduced by Peter the Great extended also to the church. It was more effectively subordinated to the state (the emperor) by a series of measures. When patriarch Adrian died in 1700, Peter prevented the appointment of a successor. In the following year, a considerable part of the church income from land holdings was shifted to the state. In 1721, a Church Statute (Dukhovnyi Reglament) was issued by the emperor, regulating the internal organization of the orthodox church in detail. The patriarchal dignity was abolished and the church government was entrusted to a Holy Synod, appointed by the emperor.21 The secularization of church lands was completed under empress Catherine II in 1764.22

7. Popular Rule and Democracy in Russia Popular assemblies are well documented in the history of early Kievan Russia. They were among the chief political actors, along with the princes and their retinues (see the chapter on “Popular Assemblies”). They had their roots in Slavic prehistory and they offered a close parallel to the popular assemblies known in Germanic history and protohistory. With the strengthening of the Kievan state and its subsequent breakup into semi-independent principalities, the power of the Old-Russian veche diminished in favour of the power of the prince and his increasingly structured governmental administration. Novgorod (and Pskov) was again the exception, because here the local parties (boyar clans, the bishop, the veche) succeeded in relegating the prince and his servants to the margin. Tatar-Mongol domination rang the death-knell of the veche. The khan dealt with the Russian princes who were nominally, and usually also in actual fact, his subjects. In this power equation, the veche would only be an encumbrance. When, with the waning of Tatar rule, the Moscow grand prince emerged victorious among the competing sub-dynasties, the veche had virtually disappeared. The last veche meeting was held in 1510 in Pskov, the last medieval Russian state to preserve its independence, in order to decide on Pskov’s submission to the grand prince. 21

22

Text in V.N. Beneshevich (ed.), Sbornik pamiatnikov po istorii tserkovnogo prava, Part 2, Petrograd, 1914, 89-250.

See Vladimirskii-Budanov, Obzor, 553-554.


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An element of representative government returned, albeit in an entirely different form, with the convocation of the Land Council (Zemskii Sobor).23 The Land Council grew out of a combination of the church council and the Boyar Council (Boiarskaia Duma),24 both of them institutions with a longer tradition, by the addition of representatives of the merchants and townspeople (of Moscow) and of provincial landowners.25 After the first Zemskii Sobor of 1566, Ivan IV organized several others until his death in 1584, when his son Fedor was offered the throne by a hastily convened Land Council.26 In the following Time of Troubles, the Zemskii Sobor emerged as the normal electoral agency for appointing a new tsar, beginning with Boris Godunov in 1598. As related above, the Land Council met regularly under the first two Romanov tsars, Mikhail Fedorovich and Aleksei Mikhailovich. After the death of the latter, his young sons Fedor and Peter were still elected by the Zemskii Sobor in 1682, with the simultaneous appointment of their sister Sophia as regent, but only one more Land Council was held after this, in 1683/1684.27 In Peter the Great’s views on the absolute monarchy, there was no room for a representative body deciding on important matters of state. In his Statute on Accession to the Throne of 1721, Peter reserved the right to appoint a successor to the emperor himself.28 From Peter the Great onwards, the Russian empire was governed by the emperor, assisted by various government agencies appointed by him (the Senate since 1711,29 the State Council since 1810,30 the Council of Ministers since 181131). Only the reforms of 1905 brought a return of a form of representative government to Russia. The decisive moment was the issuing of the Manifesto of 17 October 1905 which promised, along with a 23

24

The literature on the Zemskii Sobor is extensive; the basic modern study is L.V. Cherepnin, Zemskie Sobory russkogo gosudarstva v XVI-XVII vv., Moskva, 1978.

25

On the Boyar Duma: V.O. Kliuchevskii, Boiarskaia Duma Drevnei Rusi, Moskva, 1892 (several later editions).

26

This is quite obvious from Karamzin’s description of the first reported Zemskii Sobor in 1566; he relates how Ivan IV did something unheard of: he invited not only the usual members of the Boyar Council, but also the above-mentioned representatives. See Karamzin, IX, col.67.

27

Cherepnin, Zemskie Sobory, 63ff., regards the combined meeting of the Boyar Duma and the church council already as a Land Council and puts its first meeting therefore in 1549.

Cherepnin, Zemskie Sobory, 362-370.

PRP VIII, 204-205.

PRP VIII, 42-44.

RZ VI, 54-90.

Ibidem, 90-156.

28 29 30 31

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basic human rights package, elections for a State Duma with full-fledged rights to participate in the legislative process and in the supervision of the executive.32 This Manifesto was followed by the promulgation, on 23 April 1906, of the new Fundamental State Laws, in fact a Russian constitution which elaborated the short announcements made in the Manifesto; it regulated the supreme state agencies (emperor, State Council, State Duma, and Council of Ministers), the legislative process, and enumerated the basic civil rights.33 The representative character of the Duma was quickly eroded by extensive tinkering with the electoral system, but this should not obscure the magnitude of the reforms of 1905-1906.

8. Feudalism In Western Europe, feudalism was undoubtedly one of the ancestors of modern human rights. Can the same be said about Russia? This question has been discussed in more detail in the chapter on “Land Tenure, the Druzhina, and the Nature of Kievan Rus’”. At this place, a few more summary points will be sufficient. There is first of all the terminological aspect which still hampers understanding, where feudalism is concerned, because the Marxist concept is very deeply embedded, also among post-Soviet historians in Russia and other ex-Soviet countries. The distinguishing feature of classic European feudalism was the particular nature of the feudal contract, especially as it came to be imbued with a moral aspect. Lord and liegeman each contributed materially: land and service, but beyond that they owed each other loyalty, support and protection. Moreover, the contract, in present-day terminology, was of a mixed public-private character. In later years, all kinds of variations on this basic theme developed. Classic feudalism flowered mainly in parts of Western Europe, especially in the heartland of the old Carolingian empire. Many parts of Western Europe were only marginally affected by feudalism, or not at all. Feudalism in this sense never got beyond the initial stage in Russia. The princes of Kievan Russia did indeed begin to make land grants to their servitors, but a balanced system as had emerged in Western Europe did not arise. A number of factors contributed to this. Trade played a greater role in the economy of Kievan Russia than it did in Western Europe, which was closer to a natural economy (Naturalwirtschaft) during the early Middle Ages. The fact that the dynasty of Rurik, unlike the Carolingians, survived and expanded created a different political situation in Russia. 32 33

RZ IX, 42-52.

See the Election Statute for the State Duma of 3 June 1907, RZ IX, 53-117.


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The ruling princes in Russia were more powerful from the start than their West European counterparts. This was reinforced by the constant threat of invasions by steppe nomads. When the latter, in the shape of the Mongol hordes of Chingis-Khan finally overran Russia, there was no room anymore for any kind of independent role for a landowning class. The Russian church, on account of the different church-state relationship in Russia (as discussed above), could not fulfil the pioneering function in the feudalization process that the Western church had taken on. There were without question a number of legal institutions in medieval Russia which resembled West European developments. Land was granted, even up till the 18th century, in return for the duty to perform military service. Jurisdictional and fiscal immunities granted to church and secular landowners were commonplace in medieval Russia. But, the balance of power and resulting mutual interdependence so typical of European feudalism never came about; there was always the looming shadow of the supreme and absolute power of the prince.

9. Urban Freedom At first sight, it would seem that the starting position of towns was more favourable than in Western Europe. The principalities of Kievan and post-Kievan Russia were based on and centred around towns. They were all named after the principal or capital towns: Kiev, Novgorod, Smolensk, Riazan’, Vladimir, Polotsk, etc. When a principality was broken up, the younger sons were given smaller towns with the surrounding countryside; that was how the bewildering profusion of sometimes minute territories arose. The origin of medieval Russian towns is a much debated question among Russian historians.34 On one point there seems to be agreement: there is no single explanation. Some towns grew up on the basis of older tribal centres; other towns were expressly founded by princes; trading posts could develop into towns. Economically the town could be a regional centre, serving the exchange of regional produce; in other towns the accent 34

I.Ia. Froianov is one of the central figures in the debate. In Soviet times, he was considered something of a heretic, on account of his views on the nature of Kievan Russia. His three-volume study on Kievan Russia has been republished in 2001 under the title Nachala russkoi istorii (Moskva). The views of Froianov and his sympathizers on the rise of towns in the Russian middle ages have been expressed most clearly in the volume edited by him in 1988: Genezis i razvitie feodalizma v Rossii. Problema istorii goroda, Leningrad, 1988, and in the collection published in his honour in 1996: V.M. Vorob’ev & A.Iu. Dvornichenko (eds.), Srednevekovaia i novaia Rossiia, S.Peterburg, 1996. Among Froianov’s opponents, see, for instance, P.P. Tolochko, Drevnerusskii feodal’nyi gorod, Kiev, 1989.

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was on interregional and international trade; there were also towns which served mainly as administrative centres or as military outposts.35 The town population displayed a parallel variety in social status. Novgorod was dominated by its own local boyar clans, opposed to the ordinary people, the chern’. Most towns would count a considerable number of persons engaged in crafts and trades; some of these were free, others were half-free and dependent on masters.36 In any case, the general picture differs significantly from its West European counterpart, where (at least in the area where Roman influence and the survival of Roman settlements were weak or absent) towns appeared as territorial enclaves, as islands in the sea of feudal lands, enjoying a separate legal status. In medieval Russia, the legal status of individual members of the urban population might in some ways be different from that of members of the rural population, the town itself was inseparable from the surrounding countryside and was in fact the central constituent part of the political territory. Only Novgorod and Pskov should be treated separately in this respect; although they were also the centres of their respective territories, they themselves enjoyed a special legal status. The political environment of Western Europe favoured the formation of a special legal status for the medieval town in a triangular relationship between the nominal feudal lord of the town (emperor, king, bishop, etc.), the town itself and the surrounding feudalized countryside. This expressed itself externally in the formal granting of urban rights and internally in the elaboration of a specific legal regime for the townspeople. This development was not realized in Russia on account of the different political situation. There were, indeed, the beginnings of a differentiated legal status, but the power of the ruling prince, and particularly the increasing preponderance of the Moscow grand prince and his eventual complete victory, in combination with the specific role of Tatar-Mongol overlordship, resulted in the failure of the towns to achieve anything resembling the position of towns in Western Europe. In Novgorod and Pskov, special circumstances allowed long-lasting retention of independ35

36

See, for instance, I.B. Mikhailova, “K voprosu o sotsial’nom statuse iuzhnorusskikh porubezhnykh gorodov v domongol’skii period”, Froianov (ed.), Genezis, 94-101; I.V. Dubov, “Problema obrazovaniia gorodov v Drevnei Rusi”. Vorob’ev & Dvornichenko (eds.), Srednevekovaia i novaia Rossiia, 168-188; E.N. Nosov, “Proiskhozhdenie pervykh gorodov Severnoi Rusi”, M.B. Sverdlov (ed.), Feodal’naia Rossiia, S.Peterburg, 1993, 5-10.

Cf. Iu.V. Krivosheev, “Kniaz’, boiare i gorodskaia obshchina Severo-Vostochnoi Rusi v XII-nachale XIII v.”, Froianov (ed.), Genezis, 111-123; A.V. Maiorov, “Boiare i obshchina Iugo-Zapadnoi Rusi v sobytiiakh 1187-1190 gg.”, Vorob’ev & Dvornichenko (eds.), Sredenevekovaia i novaia Rossiia, 226-243.


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ence, accompanied by the elaboration of an indigenous legal system; but, in one important aspect, this situation was different from the average feudal town in Western Europe. In the case of the latter, a permanent watchfulness and even struggle was required to maintain the freedom of the town against the claims of its feudal master; Novgorod and Pskov, as long as they were strong and independent, were their own masters.37 In Muscovy Russia, the town fell into line within the overall framework of the state. The difference between urban and rural conditions dictated different legal regimes for town and country, but the towns and their citizens did not enjoy any more freedom than was needed to serve the interests of the militarized Russian state. This is quite obvious from the occasional references to townspeople in the Code of 149738 of Ivan III and in ch.XIX of the Code of 1649 of tsar Aleksei, devoted to the posadskie liudi (one of the principal categories of the urban population).39 The late emergence of a self-confident urban citizenry can also be discerned in the major enactment concerning the legal status of towns and their citizens in the 18th century, the Charter on the Rights and Benefits of the Towns of the Russian Empire of 1785.40 It was only in 1801 that an imperial edict allowed members of the merchant class and lower-class townspeople (meshchane) to buy and own land outside the town.41

37

38

39

PRP III, 341-418; RZ II, 34-97. Specifically on Ivan III’s urban policies: Iu.G. Alekseev, “Nekotorye cherty gorodskoi politiki Ivana III”, Froianov, Genezis, 165-175.

See footnote 19.

The legal system of Novgorod is well documented by a large number of treaties, private charters (gramoty), and some legislative documents, of which the 15th century Novgorod Court Charter (Novgorodskaia Sudnaia Gramota) is the most important; see GVNP and for the Novgorod Court Charter: PRP II, 210-244; RZ I, 300-320; D. Kaiser (ed. & transl.), The Laws of Rus’–Tenth to Fifteenth Centuries, Salt Lake City, 1992, 79-86 (Russian text and English translation); G. Vernadsky, Medieval Russian Laws, New York, 1947, 83-92 (English translation). Of much greater importance is the 15th century Pskov Court Charter (Pskovsksia Sudnaia Gramota), which represents the only comprehensive codification between the Russkaia Pravda and the 1497 Code of Ivan III; see PRP II, 282-383; RZ I, 321389; I.D. Martysevich, Pskovskaia Sudnaia Gramota, Moskva, 1951; Iu.G. Alekseev, Pskovskaia Sudnaia Gramota, Pskov, 1997 (not available to me); Kaiser, op.cit., 87-105 (Russian text and English translation); Vernadsky, op.cit., 61-82 (English translation); M. Szeftel & A. Eck, Documents de droit public relatifs à la Russie médiévale, Bruxelles, 1963, 117-214 (French translation).

40 41

Text in RZ V, 67-136.

Text in RZ VI, 28-30.

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10. Due Process “Due process” can be used to refer to a package of rights which form the core of the classic human rights. They primarily concern the relationship between the individual and the state, the latter as the sole source of judicial interference in the life of the individual, and by the same token, as a serious potential threat to the individual. From this point of view, the question of due process can also be regarded, as has been done above, as an aspect of the limitation of the powers of the state. At the same time, one has to admit that in a more general sense due process refers to the orderly settlement of disputes and the punishment of crimes, both of them intimately connected with the emergence of the state and the prevention of chaos, and as such antedating the first fears about a too powerful state. In Russia, as almost everywhere, the emergence of the first state-like structures went hand in hand with the setting up of a rudimentary judicial framework. The oldest version of the Russkaia Pravda, the so-called Short Pravda, straddles in its several chronological layers the transition from informal adjudication and dispute settlement within the family, clan or tribe, to a new kind of justice meted out through the intervention of the prince and his court (see the chapter on “The Russkaia Pravda”). In all major enactments of the following ages, the aspect of due process (in the broad sense indicated above: the well-regulated settling of disputes and punishment of crimes) remained dominant: the better parts of the Novgorod and Pskov Court Charters, of the Law Codes of 1497 and 1647, and the intervening Code of 155042 were devoted to procedural rules. It was only in the course of the great reforms of the judicial system of the 1860’s that the first classic rights of the individual concerning his position in respect of the legal system emerged.43 The first article of the Criminal Procedure Statute of 1864 provided that: “Nobody shall be subject to judicial prosecution for a crime or misdemeanour, except in accordance with the procedure laid down by this Statute.” This having been said, a more general observation concerning the ‘genealogy’ of legal institutions comes to mind. Legal institutions may arise or be invented on the basis of existing institutions which served a different purpose. With regard to the due process aspect, considered here in its human rights dimension, one could point to the institution of judicial immunity, well known in the Russian middle ages and afterwards. 42

43

Text in PRP IV, 229-332; RZ II, 97-177; also in B.D. Grekov (ed.), Sudebniki XV-XVI vekov, Moskva/Leningrad, 1952, 111-340. Text of the Criminal Procedure Statute in RZ VIII, 118-384. On the reforms: F.B. Kaiser, Die Russische Justizreform von 1864, Leiden, 1972; R.S. Wortman, The Development of a Russian Legal Consciousness, Chicago/London, 1976.


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This institution, which was also an important element of classic feudalism in Western Europe, exempted certain categories of individuals from the jurisdiction of certain courts. Of course, it did not pretend to safeguard human rights avant la lettre; but, by forbidding the courts entry into certain areas, it did foreshadow in some way the classic human rights.

11. Equality A similar development is observable in connection with equality. Equality before the courts first appeared, not as a requirement of morality, based on a modern view of the person and society, but as a reaction against the hypertrophy of the immunity system. The Lithuanian Statute of 152944 provided (in art.9) that “all our subjects, poor and rich alike, whatever their condition or position, be tried equally and identically by these written laws”. Similarly, the Code of 1649, in its Chapter 10 (On the court), instructed all those entrusted with judicial duties “to judge honestly all the people of the Moscow state, from the highest to the lowest rank” (art.1). For a more modern approach to the question of equality before the law and the courts, one had to wait for the judicial reforms of the 1860’s. The basic law concerning court organization, the Institution of Judicial Instances (Uchrezhdenie Sudebnykh Ustanovlenii) of 1864 enumerated the several judicial instances from the lowest to the highest court in its Article 1 and then stated in Article 2: “The judicial power of the instances indicated in the foregoing Article 1 extends to persons of all classes and to all cases, civil as well as criminal.” Although there was an increasing number of exceptions, the principle itself was clear enough. In the list of civil rights of the 1905 Constitution, one looks in vain for a general statement on the equality of citizens; this might indeed have proven to be problematic, because Russian citizens continued to belong to a legally defined class (nobility, clergy, merchants, peasants, workers, etc.) right down to 1917. 44

The Lithuanian Statute was the chief codification of the Grand Principality of Lithuania. It was to a considerable extent based on medieval Russian law and exerted, in turn, strong influence on subsequent Russian legislation (such as on the Code of 1649); it was, moreover, written in Russian and can, for these reasons, be considered part of Russian legal history. Recent text edition by S. Lazutka, I. Valikonite & E. Gudavichius, Pervyi Litovskii Statut (1529 g.), Vilnius, 2004. English translation and commentary in K. von Loewe, The Lithuanian Statute of 1529, Leiden, 1976, where also older editions of the Statute of 1529 are mentioned. The Statute of 1529 was followed by the Statutes of 1566 and 1588, which continued to build on the former. The Statute of 1566 was recently published in Belarus by T.I. Dounar, U.M. Satolin & Ia.A. Iukho (eds.), Statut Vialikaga kniastva Litauskaga 1566 goda, Minsk, 2003.

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12. Concluding Observations One of the main arguments in this chapter has been that the present world-wide success of the human rights doctrine has many ancestors (as success is supposed to have) in the history of Western civilization. Classical antiquity, the medieval Church, the Reformation, the Enlightenment, all have contributed at the level of ideas; pragmatically, they would agree on the desirability of circumscribing the domain of the state and its law, and of guaranteeing the individual citizen a certain protected sphere of individual liberty. The actual evolution of political and socio-economic conditions in the Western world gradually created a situation which was more or less in harmony with these ideas. An investigation into the presence and strength of all such factors in Russian legal history has produced a picture which shows that the historical background of human rights is significantly different in Russia. The separation of powers, which, before the theory existed, was maturing slowly in Western Europe over many centuries, never got off the ground in Russia. The main factors which militated against it were the subordinate position of the orthodox church, the survival of strong princely power and the concomitant weakness of the higher nobility (the boyars) and the towns, the peculiar shape of Russian ‘feudalism’, the triumph and ultimate monopolization of power of the Moscow prince. All this against the ideological background of the Byzantine heritage and a centuries-long isolation from ideas and influences from Western Europe, which was a politically fragmented and ideologically pluriform congeries, and not a monolith like Russia. Nevertheless, the other side of the balance-sheet is not empty. The Eastern orthodox view of the church-state relationship, which was dominant in Russia for most of the time, favoured autocracy, but by no means legitimized despotism. There were certain implicitly recognized principles of government and the ruler could be held accountable in this respect. Time and again church leaders, prominent citizens or just courageous individuals spoke out. They might lack the advantage of a legally defined position, but their moral authority was obvious to all. This pattern even reasserted itself in the later period of Soviet power when the regime had lost the aggressively terrorist character of the Stalin era. Sakharov and others dissidents from the Brezhnev period represented a typically Russian tradition of civil courage. One could even argue that, notwithstanding the unsatisfactory state of affairs during the last decades of the Empire and the total collapse of human rights under the Soviet regime, the idea itself of human rights was more alive in Russia during those times than it was in the Western world.


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It was at the centre of dissident thought in the 1970’s. Once the Soviet system fell apart, the enunciation of a decent catalogue of human rights was one of the first concerns of the legislator. One might even discern the strength of a universal human rights concept reflected in Soviet legislation. From the very beginning, already before the October Revolution, the Soviets considered it imperative to grant a package of human rights; they only made sure, both through the fabrication of a spurious theory as well as through its legislative implementation, that Soviet new-style civil rights would in no way hamper the regime’s complete freedom of action. It would be unrealistic to assume that, where human rights are concerned, all is well now in a Russia that has proclaimed itself to be a democratic and law-governed (pravovoe) state (art.1 of the 1993 Constitution of the Russian Federation) and that has explicitly embraced the universal principles in the field of human rights and freedoms (art.17 of the same). The heritage of many centuries of autocracy, dictatorship and enforced orthodoxy and unity is a heavy burden which has a strong psychological impact on the Russian polity. Most of the defects of the present state of Russian democracy and of the system of government are connected with the inability or unwillingness to let go of the “winner-takes-all” mentality. The purpose of an appropriate and effective human rights system is not a state of paradise, but a tolerable mess.

Chapter 9 The Skra of Novgorod: Legal Contacts Between Russia and Western Europe in the Middle Ages 1. Introduction For many centuries, the medieval Russian city of Novgorod housed within its walls an independent community of Hanseatic merchants. They had their own code of law, called the Skra,1 which regulated the most important aspects of their daily life, their commercial activities, their organization and self-government. The Skra has been studied by historians, both German and Russian, as a source for the history of the Hanseatic League, of German-Russian relations, of life in medieval Novgorod, etc. As a legal document, the Skra has usually been viewed by German legal historians as an offshoot and a geographically remote representative of the family of North German city laws.2 This chapter will consider the Skra in particular against the background of contemporary Russian law. In order to acquire a general perspective of the historical context and geographical surroundings in which the Skra functioned, some attention must first be paid to Novgorod, its place in Russian history, its system of government and its laws, and then to Novgorod’s relations with the cities of the Hanseatic League. These introductory sections will be followed by a discussion of the Skra itself, its sources, and its relations with Russian law.

1

2

The term Skra (scra, schra, schrage) itself is of German origin and occurs in medieval German law to denote a more or less statutory enactment of a city. On its etymology, see F. Frensdorff, “Das statutarische Recht der deutschen Kaufleute in Nowgorod”, Abhandlungen der kön. Ges. der Wiss. zu Göttingen, Vol.33 (1886), 1-35 (at 2-5) and Vol.34 (1887), 1-55. The most complete edition of the text of the Skra is by W. Schlüter, Die Nowgoroder Schra in sieben Fassungen vom XIII. bis XVII. Jahrhundert, Dorpat, 1911. (The same author published a small booklet in the same year Die Nowgoroder Schra in ihrer geschichtlichen Entwicklung vom 13. bis zum 17. Jh., the text of a lecture held in 1910.)

Frensdorff, Vol.1, 25-26.

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2. Novgorod the Great3 Novgorod is situated in the North-West of European Russia on a trade route from the Baltic Sea to the Black Sea, which goes back to prehistoric times and is already described in detail in the Primary Chronicle. The route runs from the Black Sea up the Dniepr, then through a portage to the river Lovat’, which flows into Lake Ilmen. Novgorod lies at the northern end of this lake. From Novgorod, the river Volkhov flows north into Lake Ladoga, which then is connected through the river Neva with the Baltic Sea. During the earliest period of Russian history, Novgorod appears as the most important city in the North of the country. In those days, the Slavic tribes inhabiting the region of Kiev were called Russians, while the population of the Novgorod region was known as Slovenes. These names were still used in the oldest part of the Russkaia Pravda, dating from the beginning of the 11th century. The principal chronicles covering the earliest period of Russian history, the Primary Chronicle and the First Novgorod Chronicle (see the chapter on “Sources”), clearly demonstrate the tensions which existed between the two cities.4 More than once, the prince of Novgorod succeeded in taking the throne of the grand prince in Kiev. According to dynastic custom in the Kievan realm, the brothers and other important male relatives of the grand prince of Kiev would usually each receive a principality. Upon the death of the grand prince or a local ruling prince, the eldest son would not normally succeed; instead, the principalities were redistributed among the leading members of the ruling house, the descendants of Rurik (see the chapters on “The Elder Brother in Russia” and “The Treaties of Medieval Russia”). In this way, several of the most famous grand princes of Kiev—notably St.Vladimir, who converted to Christianity in 988, and his son Iaroslav the Wise, the legislator of the oldest part of the Russkaia Pravda—came to the Kievan throne through Novgorod. Novgorod’s geographical position in the North-West of the country proved to be a great advantage in the 13th century when the Mongols conquered and devastated most of the former Kievan empire. At that time, the union achieved under earlier grand princes of Kiev had already broken down and the country was fragmented into a number of almost 3

4

Convenient surveys of the medieval history of Novgorod in Kliuchevskii, Vol.2, 54-104; M.N. Tikhomirov, “Velikii Novgorod v istorii mirovoi kul’tury”, M.N. Tikhomirov (ed.), Novgorod k 1100-letiiu goroda, Moskva, 1964, 23-37; K. Onasch, Gross-Nowgorod. Aufstieg und Niedergang einer russischen Stadtrepublik, Wien, 1969.

See, also, P.P. Tolochko, “Kiev i Novgorod XII–nachala XIII vv. v novgorodskom letopisanii”, A.A. Gippius, E.N. Nosov & A.S. Khoroshev (eds.), Velikii Novgorod v istorii srednevekovoi Evropy [Ianin Festschrift], Moskva, 1999, 171-179.

The Skra of Novgorod

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independent principalities. During the campaign of 1237-1238, most of the Central Russian cities were destroyed, but the Mongol army turned south when it was only 100 km from Novgorod. The fact that Novgorod and the surrounding countryside escaped Mongol occupation helps to explain not only its enhanced position in 13th century Russia, but also the comparative richness of its contemporary historical sources. In terms of territory, Novgorod was by far the largest of the medieval Russian principalities. It embraced not only the entire North-West of European Russia, but also the vast expanses of Northern Russia up to the Ural Mountains and beyond. North-South trade between the Baltic and the Black Sea had much diminished in the 13th century, on account of the occupation of Constantinople by the Crusaders, the penetration of the Venetians as traders in the Black Sea, and the occupation of Southern Russia by the Mongols. The commercial centre of gravity in Russia had shifted to Novgorod, now primarily engaged in East-West trade. The enormous hinterland of Northern Russia provided furs and wax for export to Western Europe. Novgorod maintained its position as a commercial centre and a powerful state up till the end of the Russian Middle Ages, when it finally had to bow to the supremacy of the Moscow grand princes. In 1471, the Novgorod army was defeated by Ivan III in the battle at the Shelon’ River and in 1478 Novgorod had to give up its own institutions and became a province of the Muscovite state. In its heyday during the 13th and 14th centuries, the city was often referred to as “the Lord Novgorod the Great”; the proud position of the city was equally reflected by the contemporary saying “Who can stand against God and Novgorod the Great?”. The configuration of states among which Novgorod played such an important role in the Middle Ages was far from simple. After the breakdown of the Kievan Russian state, no effective leader was left in Russia. Russian national consciousness however remained intact, and Novgorod’s neighbours should, therefore, first be divided into Russians and nonRussians. The chief Russian neighbours were the principality of Tver’ and later on (after Tver’ had been absorbed by Moscow) the principality of Moscow, and the city of Pskov. The latter city originally had the rank of a prigorod, a suburb, of Novgorod. During the 12th and the 13th century, the Pskovians usually followed a course independent from Novgorod, for instance by inviting a ruling prince themselves and concluding their own treaties. The mother city finally recognized the independence of Pskov formally in 1347. Novgorod, as mentioned above, was never occupied by the Mongols, but it was forced to pay tribute to them for some time. Novgorod’s rela-

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tions with the Mongols were not as intense as those of other Russian principalities. On the western side, Novgorod was most closely involved with Lithuania and Livonia. The latter territory had a complicated structure, in which the Teutonic Order, the archbishopric of Riga, the bishoprics of Derpt (Dorpat, Iur’ev, Tartu), Oesel and Kurland, and the Hanseatic towns of Riga, Revel (Reval, Tallinn) and Derpt were the main elements. As a city engaged in international trade, Novgorod was also in frequent contact with other Baltic Sea states: Sweden, Denmark, and the Hanseatic League.

3. Novgorod’s System of Government Originally, like other provincial Russian cities, Novgorod was ruled by a member of the family of the Kievan grand prince, usually a son or a brother. The prince was employed primarily as the commander of the army and was not allowed to exercise too much influence in the city’s internal affairs. Even the earliest sources already show that Novgorod’s enterprising and self-conscious citizenry was always inclined to take a strong and independent line with its princes. In the 13th century, the custom of inviting a prince and dismissing him when he was not any longer to the liking of the city became firmly embedded.5 A contract was concluded with a new prince, who had to swear to uphold the ancient rights and freedoms of the city. Only in Pskov did a similar system take shape, and in fact medieval Russia, after the decline of Kiev, can be regarded as a loose conglomerate of principalities, ruled by princes of the same house, and two republics: Novgorod and Pskov. When the prince was absent in Novgorod—a frequent occurrence— his duties were carried out by his lieutenant, the namestnik. In the actual government of the city, the most important person was the bishop (after 1165: the archbishop). His power rested chiefly on his generally acknowledged authority, which allowed him to mediate in the frequent controversies which raged in the city’s internal affairs. Initially, the bishop of Novgorod was appointed by the metropolitan of Kiev; but, from the middle of the 12th century, it became customary for the Novgorod assembly (the veche) to elect its own bishop from the local clergy.6 The principal secular official was the posadnik, the mayor, who was assisted by the tysiatskii. While the tysiatskii (‘thousandman’, chiliarch) was originally a military officer, commanding thousand men, his office 5

6

Kliuchevskii, Vol.2, 58-63; V.L. Ianin, “Problemy sotsial’noi organizatsii Novgorodskoi respubliki”, Istoriia SSSR, 1970, No.1, 44-54; V.L. Ianin & M.Kh. Aleshkovskii, “Proiskhozhdenie Novgoroda”, Istoriia SSSR, 1971, No.2, 32-61.

Kliuchevskii, Vol.2, 61.


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embraced a number of civil, commercial, administrative and judicial functions, and the precise distribution of the tasks between the posadnik and the tysiatskii is a matter of speculation.7 Both offices were initially filled by appointees of the prince, but already in 1126 the first locally appointed posadnik is mentioned. Three years later, the First Novgorod Chronicle relates that “Daniil came from Kiev to be posadnik in Novgorod”; from 1130 onwards, the custom of electing the posadnik remained firmly entrenched. At a somewhat later date, Novgorod also successfully enforced its right to elect its own tysiatskii. The city of Novgorod was divided into two sides by the river Volkhov, the Sophia and the Merchant Side (Torgovaia storona). The former consisted of the Potters’ (or People’s) Quarter, the Quarter behind the Citadel (Zagorodskii konets), and the Nerev Quarter, the latter of the Slavno and the Carpenters’ Quarter. The quarters were each divided into “hundreds” (sotni), and these into streets (ulitsy). These units had a certain amount of self-government through their elected elders and councils.8 In theory, supreme power in Novgorod belonged to the veche or popular assembly (see, also, the chapter on “Popular Assemblies”). In practice, during the later period of Novgorod’s independence, the Council of Lords (Sovet Gospod), which prepared the business to be dealt with by the veche, was of greater importance. This Council consisted of the acting posadnik and tysiatskii, (some of) their predecessors, and other prominent citizens. The democratic character of Novgorod’s government was also tempered by its rigid class division; the sources distinguish between boyars, prominent citizens (zhitye liudi), merchants, common citizens (chernye liudi, lit. black people), and several classes of unfree persons. The principal city offices remained firmly in the hands of the boyars for the entire duration of Novgorod’s independence.9 All this resulted in Novgorod’s history being characterized by excessive conflict and strife: between various social classes, between family factions among the leading boyars, between the different parts of the city. It was in this situation that the bishop emerged as the most effective conciliatory agent. Novgorod was not only a city-state, but also the centre of a large empire, covering the entire northern half of European Russia and extending even beyond the Ural Mountains. It consisted of a metropolitan area, the five-fifths (piatni) adjoining (or almost) the city territory, and the more distant volosti, of which Dvina Land, a vast area in northern Russia, was 7 8 9

Cf. V.L. Ianin, Novgorodskie posadniki, Moskva (2nd ed.), 2003.



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the most important. The entire empire, including a number of cities situated therein, was ruled from Novgorod. Only the city of Pskov, as related above, succeeded in securing its independence from Novgorod after a lengthy struggle in 1347. The rise of the principality of Moscow, as the nucleus of a national Russian state during the 15th century signalled, the downfall of Novgorod. A combination of economic, political and military factors led to the loss of its independence. After its defeat in 1471 at the Shelon’ River in a battle against the Muscovite army, Novgorod’s role as an independent agent in North-Eastern Europe was over.

4. Novgorod’s Legal System The most comprehensive legislative document from medieval Novgorod is the Charter of Novgorod.10 Its final version, which has come down in a single copy, refers to the consensus between grand prince Ivan III of Moscow, the archbishop-elect and the estates of Novgorod, and can therefore be dated in 1471, after the battle of the Shelon’ river and the subsequent peace treaty of Korostyn’. The Charter is based on a previous version which did not survive; but, to some extent, it can be reconstructed by eliminating the dominant position of the Moscow prince, which for obvious reasons was written into the 1471 text. Altogether, the Charter concerns mainly procedural law and provides only a very fragmentary picture of the law of Novgorod as an independent state. The basic source of the written law of 13th and 14th century Novgorod must have been the Russkaia Pravda in its more recent and extensive form, the so-called Expanded Pravda.11 Its final compilation probably took place during the second half of the 12th century or the early years of the 13th century. This makes the final version of the Expanded Pravda almost a contemporary of the earliest legal documents from Novgorod and the earliest treaties concluded by the city. It would explain to a great extent the absence of more ambitious legislation in the large collection of Novgorod legal sources known to us. 10

11

PRP II, 210-242, with notes, comments and modern Russian translation by A.A. Zimin; RZ I, 300-320; M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava, Vol.1, S.Peterburg (5th ed.), 1899, 200-217. Russian text and English translation in D.H. Kaiser (ed.), The Laws of Rus’-Tenth to Fifteenth Centuries, Salt Lake City, 1992, 79-86; English translation by G. Vernadsky (transl.), Medieval Russian Laws, New York, 1947, 83-92. See, also, L.V. Cherepnin, Russkie feodal’nye arkhivy XIV-XV vekov, Vol.1, Moskva/Leningrad, 1948, 373-396. As suggested by A.A. Zimin in PRP II, 210, who follows the views put forward in this respect by B.D. Grekov in Krest’iane na Rusi s drevneishikh vremen do XVII veka, Moskva/Leningrad, 1946, 404ff.


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We might assume, therefore, that Novgorod’s legal system during the period of its independence was based on customary law and the Expanded Pravda, amended and supplemented by ad hoc enactments (of which little has survived) and also affected in some parts by the treaties concluded by the city. This legal system is illustrated by a large number of private charters (gramoty). Most of these are deeds of sale, gifts, and testaments. Their contents are brief and they concern chiefly certain aspects of civil law (GVNP being the chief publication). The political system and what could somewhat unhistorically be called the constitutional law of Novgorod can best be studied through the treaties which Novgorod concluded with different Russian princes. More than twenty are available, from 1264 to 1471, and they allow us to trace the development of Novgorod’s position vis-à-vis the ruling princes and the internal power shifts within the city government.12 The ‘international’ treaties concluded between Novgorod and foreign powers did in some ways affect the domestic law of Novgorod; we shall return to this topic in the discussion of Novgorod’s relations with the Hanseatic League.

5. Novgorod’s Trade with the Hanseatic League13 Trading relations between Russian and other Baltic Coast nations go back to prehistoric times. Although the exact role of the Varangians (or Vikings) in the emergence of the first historic Russian state in Kiev is still a muchdebated and politically sensitive issue, nobody would deny that they did play a role, in which the merchant and the mercenary commingled effortlessly. Indeed, the earliest sources of Russian law—such as the treaties between the Kievan princes and the Byzantine emperors and the Short Version of the Russkaia Pravda—are indicative of the necessity to come to terms with local communities of foreign traders. It is, therefore, not surprising that the first commercial treaty of Novgorod that has survived spoke of the confirmation of the “old peace [treaty]” (starogo mira).14 It thereby indicated a pattern which was adhered to with great regularity in the course of the following centuries: trade interrupted by conflict, solved by a treaty which promised a return to the peaceful relations of the past. The first treaty, dated between 1189 and 1199, was concluded between Novgorod on one side and “the sons of the Germans, the Goths, and the 12

13 14

GVNP, 10-51. This subject is treated at length in E.A. Rybina’s important monograph Inozemnye dvory v Novgorode XII-XVII vv., Moskva, 1986, esp. 24ff. GVNP, 55. Also in PRP II, 124-131, with notes and comments by A.A. Zimin.

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whole Latin people” on the other.15 From subsequent treaties, it is clear that this formula referred to the Hanseatic League, led by the city of Lübeck. In other treaties, the representative of Lübeck is often named explicitly, while the designation “Goths” or “Gothic Coast” in treaties invariably refers to the city of Visby. The preamble of the treaty mentioned prince Iaroslav Vladimirovich, at that moment the ruling prince of Novgorod, “consulting with the posadnik Miroshka, the tysiatskii Iakov, and all the Novgorodians”. Miroshka was the ancestor of the most prominent boyar family of Novgorod, the Miroshkinichi, who supplied the city with numerous posadniki and tysiatskie. The first article of the treaty spelled out the freedom of trade to be enjoyed by the German merchants on Novgorod territory and by the Novgorodians on German territory. The rest of the treaty concerned mostly criminal law. It laid down fixed monetary penalties for various offences and was close to similar provisions of the Russkaia Pravda.16 The necessity to regulate conflicts arising between the native population and a resident foreign community of traders seemed to have been the prime moving force in most ancient Russian legislation. This phenomenon can already be observed in the 10th century treaties between the Kievan princes and the Byzantine emperor and in most of the older parts of the Russkaia Pravda. The inference is that purely internal Russian conflicts could still be settled adequately by reference to customary law.17 The character of the following surviving treaty, of 1259-1260, is less fundamental and appears to be directed primarily at solving certain disputes and reaffirming the existing relationship.18 In the next treaty, of 1262-1263, the emphasis is on purely commercial matters.19 This treaty again mentioned the right of Novgorod merchants to trade on the Gothic Coast, but most of the provisions concerned the 15

16

Cf. K.Goetz, Deutsch-Russische Handelsverträge des Mittelalters, Hamburg, 1916, 16-18; V.S. Pokrovskii, “Dogovor Velikogo Novgoroda s Gotlandom i nemetskimi gorodami 1189-1195 gg. kak pamiatnik mezhdunarodnogo prava”, Pravovedenie, 1959, No.1, 90100; N.A. Kazakova, “Nachal’nyi tekst novgorodsko-nemetskikh dogovorov XII-XV vv.”, Vspomogatel’nye istoricheskie distsipliny, Tom VI, Leningrad, 1974, 161-175. According to E.A. Rybina, “O dvukh drevneishikh torgovykh dogovorakh Novgoroda”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik, 3(13), Leningrad, 1989, 43-50, this treaty can be dated more precisely in the years 1191-1192.

17

Cf. B.D. Grekov, Krest’iane na Rusi, 406; Pokrovskii, op.cit., 96-97.

18

Cf. L.V. Cherepnin, Russkie feodal’nye arkhivy XIV-XV vekov, Vol.1, Moskva, 1948, 246-247.

19

The date of 1259-1260 is proposed by Rybina in her article on the two oldest surviving commercial treaties (see note 15); GVNP, 56-57, dates the treaty in 1262-1263.

GVNP, 56-57.


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presence of German merchants in Novgorod. This was, indeed, more in accordance with the actual state of affairs, because Russian-German trade was mostly a matter of German merchants exporting their wares in their own ships to Novgorod and returning with the produce of Novgorod’s vast territories to Western Europe. The Russian trading policy of the Hanseatic League was primarily directed at maintaining its monopolistic position on the Novgorod market. It was only after the demise of Novgorod as an independent state that the grand princes of Moscow succeeded in breaking the monopoly.20 As the Hanseatic League was effectively able to prevent for a long period the appearance of commercial competitors on the Novgorod market, a curious bilateral relationship between the two trading partners arose. It was this relationship which explained the regularity of the pattern of conflict and reconciliation between the League and Novgorod.21 Being both interested in continuing trade and not having any alternative trading partners available, the main instrument of leverage on the other partner was the seizure of goods, ships, and crews. This invariably prompted reprisals by the other side, resulting in the interruption of commercial traffic. But, as long as both sides remained interested in maintaining their trading relations, differences would eventually be patched up through the conclusion of a new treaty, which usually stipulated that everything was to be as it always had been. Nonetheless, many subtle shifts, reflecting changing interests and power positions, can be observed in the treaties. Among the most important treaties should be mentioned those from 1191-1192, 1259-1260, 1262-1263, 1269 (available in draft form), 1301, 1338, 1342, 1371, 1372, 1373 (two items), 1392 (the so-called peace of Niebur), 1409, 1423, 1434, 1436, 1439, 1450, 1466, and 1514.22 The last-mentioned treaty 20

21

Political and commercial relations between the Hanseatic League and Novgorod are discussed at length in chapters 2 (78-128), 4 (180-200) and 6 (262-337) of N.A. Kazakova’s Russko-livonskie i russko-ganzeiskie otnosheniia, Moskva, 1975 (hereafter: Kazakova).

Kazakova, passim, e.g. 89.

Texts of the treaties from 1269 to 1466 in GVNP. Treaty of 1497 in Hanserecesse, Vol.3, part 3, No.136. Treaty of 1514 in SGNP, Vol.5 (1894), 55-60. A general discussion of the treaties and their contents in M. Berezhkov, O torgovle Rusi s Ganzoi, S.Peterburg, 1879, 179-224 and (for the treaties after 1392) in Kazakova. Elsewhere, Kazakova presents strong arguments for considering the 1338 treaty (GVNP, No.40) as not belonging to the category of treaties between Novgorod and the Hanseatic League; cf. N.A. Kazakova, “Novgorodsko-nemetskie dogovory ili livonskie akty?”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik, 3(13), Leningrad, 1989, 63-67. On the German terminology of the treaties: S.M. Kashtanov, “Instituty gosudarstvennoi vlasti Velikogo Novgoroda i Pskova v svete nemetskoi srednevekovoi terminologii”, E.A. Mel’nikova (ed.), Drevneishie gosudarstva Vostochnoi Evropy 2001g., Moskva, 2003, 297-319.

22

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was concluded, on the Russian side, after the incorporation of Novgorod into the Muscovite state, by the grand prince Vasilii III. During the earlier period, the Hanseatic side was usually represented by the envoys from Lübeck and Visby; but, from the beginning of the 15th century onwards, the envoys from the chief Hanseatic cities in the Eastern Baltic area, Riga, Dorpat and Reval replaced them, a reflection of the decreased interest of the North German cities in the trade with Russia. The succession of Novgorod foreign treaties shows clearly how the prince was gradually marginalized. In the earliest treaties, the prince is mentioned as the first representative of the city; then, in the treaties from 1342-1373, his place is taken by his namestnik. After 1373, the namestnik also disappears. The treaty or agreement of 1439 is unique in that it was concluded on the German side by the German Court itself, represented by the alderman Hans Munstede and the “hoves knecht” Coerd van Tunen.

6. The German Court of St.Peter in Novgorod The hub of German-Russian trade in the Middle Ages was the German Court in Novgorod, the “hof synte peteres to Nogarden”, the nemetskii dvor. Its exact location has been established as a result of the excavations carried out by the Novgorod Archeological Expedition of Moscow University: in the old centre of the Merchant Side of the river, by the Market Square (Torg), between the old Il’ina and Slavnaia streets, and just to the west of the church of the Dormition.23 It is mentioned in the treaty of 1269 and a number of subsequent German-Russian treaties, and also in some of the treaties between Novgorod and the princes. The fact that the latter treaties, which regulate the relations between the city and its elected princes, expressly mention the German Court, testifies to the considerable importance which Novgorod attached to a clear understanding of the position of its German business community. The formula, which appeared for the first time in the treaty with prince Iaroslav Iaroslavovich of Tver’, was repeated almost unchanged in numerous subsequent treaties: “and you shall permit our brothers to trade in the German court, and you shall not close the court, nor appoint constables there.”24 23

24

Rybina, 15-23. The question had been much debated in the past; cf. N.G. Riesenkampf, Der deutsche Hof zu Nowgorod bis zu seiner Schliessung durch Iwan Wassiljewitsch III im Jahre 1494, Dorpat, 1854, 21-22; Berezhkov, op.cit., 133-135; A.I. Nikitskii, Istoriia ekonomicheskago byta Velikago Novgoroda, S.Peterburg, 1873 (hereafter: Nikitskii), 111112; S.N. Orlov, “K topografii Novgoroda”, in M.N. Tikhomirov (ed.), Novgorod–k 1100-letiiu goroda, Moskva, 1964, 264-285.

Treaty of 1270, GVNP, 13; the clause reappears in the treaties of 1304-1305 (ibidem, 1617), 1307-1308 (ibidem, 20 and 22), 1326-1327 (ibidem, 28), 1371 (ibidem, 30), 1435 (ibidem, 36), 1456 (ibidem, 41), 1471 (ibidem, 47), and also in the treaty between Novgorod and the Lithuanian grand prince Kazimir IV of 1470-1471 (ibidem, 129-132).


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The extraterritorial character of the German settlement in Novgorod suggested by these charters is made more explicit in the treaties between Novgorod and the German cities, such as the treaty of 1269 and particularly the treaty of 1371, which provides a.o.: “juwe coplude de solen nicht stan op unser brugge to beidentsiden vor unseme hove, unde de solen nene stocke in planken slaen unde en solen nenen husinge setten op unse vort unde ok nene husinge darop [lege]ren unde neyn hor dar voren, unde welke husinge daroppe staen oppe unser wort, de solle gi afsetten weder. Unde juwe brodere en solen nicht copslagen in unseme hove mit eren schiinsecken unde des gelikes op unser bruggen, dar wi dat sulver vore gheven.”25 (“your merchants shall not stand on our streets on either side of our court, and they shall not put stakes in our fences, and they shall not put buildings on our plot or leave [?] buildings there, or dump garbage there, and whatever buildings are on our plot, you shall pull them down again. And your brothers shall not trade in our court with their bags of furs, and similarly on our streets, for which we pay our silver”)

The exceptional position of the St.Peter’s Court can be reconstructed from a variety of sources; its independence from Novgorod interference was considerable, although it would go too far to regard it as a concession in the style of 19th century European settlements in China. One of the most appropriate methods of defining the status of the German Court in Novgorod is through an examination of the administration of justice in mixed German-Russian disputes.

7. Adjudication of German-Russian Disputes Novgorod possessed a court system of considerable complexity, which has not as yet been clarified in all its details.26 We shall only mention the most important courts here which were of specific interest to the German merchants. First of all, there was the court of the prince, usually presided over by his lieutenant (namestnik). This was a mixed court where the prince’s judge sat together with the mayor or his representative, according to the traditional stipulation in a number of treaties between Novgorod and its prince: “and without the posadnik, prince, you shall not try cases […].” Then there were the courts of the posadnik and of the tysiatskii, the exact relationship between their jurisdictions being unclear. A special commercial court was presided over by the tysiatskii; its other members were the aldermen of the Novgorod merchants. One may assume that the bishop’s court, presided over by his own namestnik, was of less importance to the German merchants, because it would normally deal with the usual 25 26

GVNP, 75. Cf. A.A. Zimin in PRP II, 229-243; Cherepnin, Arkhivy I, 373-396; Kliuchevskii, Vol.2, 70-72.

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matters of ecclesiastical jurisdiction (to which the Roman-Catholic German merchants were not subject) and with ecclesiastical dependents. Most of the information pertaining to the accommodation of mixed German-Russian disputes in this system of adjudication is to be found in the treaties of 1190-1191 and of 1269 between Novgorod and the German cities; some additional light on this question is shed by the various editions of the Skra, the internal law of the German commercial community in Novgorod. The main part of the treaty of 1190-1191 is a list of serious offences with the accompanying fixed fines. The list itself is an obvious adaptation of one of the oldest sections of the Russkaia Pravda.27 Although the court which is to impose these fines is not mentioned, one may assume that it would be the same as in the Russkaia Pravda, i.e. the court of the prince. With regard to civil cases, the treaty provides that twelve men are to be produced as witnesses in disputes about debts. This rule, both in its sense and its wording, is close to article 15 of the Short Pravda; the main difference is that, in the Russkaia Pravda, the twelve men still appear as a vestigial popular court. The archaic character of the provision is further substantiated by the fact that it subsumes both Germans and Goths (inhabitants of Visby) under the term variaze, Varangians, a term not encountered in any of the later treaties, but well-known in the Short Pravda (arts.10 and 11). Again, it is implicit in this provision that it is the prince’s court which tries such disputes about debts. One can conclude therefore that certain offences of a serious nature, committed by Germans, as well as at least certain civil disputes between Germans and Russians, were subject to the jurisdiction of the prince’s court. The second conclusion which the treaty of 1190-1191 allows is that the German merchants were granted certain procedural privileges. The treaty provided that Germans involved in lawsuits in Novgorod were not to be prevented from going home (rubezha ne tvoriti), and that the lawsuit then was to be resumed the next year. Also, Germans were not to be incarcerated for debts in Novgorod (nor Novgorodians in Germany). As a general rule for the adjudication of disputes between Germans and Russians the treaty of 1269 provided: “Schut en tvist tuschen dhen Dudeschen unde dhen Nogarderen, dhe twist sal endegen up sente Johannis hove vor deme borchgreven, dheme hertoghen unde dhen copluden.” (If a dispute arises between the Germans and the Novgorodians, it shall be tried in St.John’s court before the posadnik, the tysiatskii and before the merchants.”) 27

Zimin, ibidem, 124; M.F. Vladimirskii-Budanov, Khristomatiia po istorii russkago prava, Vol.1, S.Peterburg, 1899, 108-112.


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This is obviously the commercial court of the tysiatskii and the merchants of the guild of St.John, first mentioned in the charter which prince Vsevolod Mstislavich granted to the guild.28 The same court is mentioned as competent in cases of disputes between German merchants and Russian pilots (in this case the participation of the posadnik is not mentioned), and again (without the participation of the posadnik) in a clause which provides: “So wat saken to wervende hebben van gerichtes wegene wintervart unde somervart, dhat scholen se endegen vor dheme hertogen, dhen oldermannen unde dhen Nogarderen unde scholen varen eren wech sunder hindernisse.” (“And whatever claims winter or summer visitors have to pursue in court, those they shall pursue before the tysiatskii, the aldermen and the Novgorodians, and they shall go their way without any hindrance.”)

If a German party felt that he had not received his due from the Russian court, his ultimate remedy was to apply to the officials of his own community; the latter could disqualify a particular Russian, forbidding his participation in the commercial activities of the German Court for one year. This measure is mentioned in several editions of the Skra (III art.65, IIa art.9[13], V art.121, VI art.61), and its effectiveness is confirmed in the treaty of 1436 between Novgorod and the Hanseatic cities, which contains a clause providing: Welker Russen, de an de treppen screven zint van den Dutzschen, de zolen se van der treppe uthdoen unde zullet myt oen koepslagen na older wonheit.”29 (“Whatever Russians, [whose names have been] written down on the stairs by the Germans, they shall take them off the stairs and they shall trade with them according to the old customs.”)

Disputes between Germans and crimes committed by Germans in the German Court in which no Russians were involved remained outside the scope of Russian jurisdiction; this is made quite clear by the Skra (e.g. Skra III art.66, dealing with the various penalties, up to death, for theft). Russians who committed crimes in the German Court were handed over to the Russian authorities (treaty of 1269). The legal position of the German community in medieval Novgorod can therefore be summarized as far-reaching self-government and autonomy, with limited extra-territorial effects.30 Still, there remained a 28

29 30

Text in PRP II, 175-177; also in Ia.N. Shchapov, Drevnerusskie kniazheskie ustavy i tserkov’, Moskva, 1976, 158-165. The charter is known as the “Testament” (Rukopisanie) of Vsevolod Mstislavich. Its nucleus may be of 12th century origin, but the rules concerning the guild of the merchants of St.John probably date from the second half of the 14th century.

GVNP, 112.

Nikitskii, op.cit., 132-133, comes to a similar conclusion.

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possibility to make different arrangements on an ad hoc basis. There are several examples (e.g. in a treaty of 1411 and in a charter of 1417) of disputes of great importance being entrusted, not to the ordinary court, but to a specially constituted arbitration commission.31

8. The Internal Organization of the Court of St.Peter The internal organization of the German community in medieval Novgorod is richly illustrated by its own constitution and code of laws, the Skra, in its successive versions. Some additional information is supplied by the texts of the various treaties between Novgorod and the Hanseatic League. Of course, the regular sources for the history of the Hanseatic League, the Hanserecesse,32 the Hansisches Urkundenbuch,33 and the Urkundenbuch der Stadt Lübeck,34 have also much to contribute. Another important source is the Liv-, Esth-, und Kurländisches Urkundenbuch.35 The peculiar character of the Hanseatic settlement in Novgorod, and its differences with comparable settlements of foreign merchants, such as those in London or Bruges, can be explained by the unusual geographical and political conditions in which it operated. Whereas other settlements were more or less permanently inhabited, life in the St.Peter’s Court was subject to a rigid semi-annual cycle.36 During the summer, Novgorod could be reached by water by sailing up the Neva, Lake Ladoga, and then the Volkhov river. This was called watervart. Obviously, in winter only lantvart was possible. According to the Skra (IIIb art.4, V art.91) three land routes were allowed: from Riga, Reval (Tallinn), and Pernau (present-day Piarnu). This rule was based on an agreement with Novgorod (cf. the treaty of 1301).37 It was also possible to reach Novgorod over sea in winter by using sleds (this was called wakevart), but this was forbidden by the Skra (IIIb art.4, V art.91). The treaty of 1269 already provided that if one came by sea, one had to leave the same way, and the same principle held true for lantvart. This rule was taken over in the Skra (IIIb arts.2 and 3). In summer, both lantvart and watervart were possible, although watervart would clearly be preferable for merchants coming from Northern 31

32

GVNP, 89-90, 91-92.

Hanserecesse, (numerous volumes, various places of publication), 1870-1970. For full bibliographical references, see Rybina, 9.

33 34

Hansisches Urkundenbuch, Vols.1-11, Halle, 1876-1916.

35

Urkundenbuch der Stadt Lübeck, Lübeck, 1843.

36

F.G. v. Bunge (ed.), Liv-, Esth- und Kurländisches Urkundenbuch, (numerous volumes, various places of publication), 1853-1914. See, also, Rybina, 8.

Riesenkampf, op.cit., 27-29; Nikitskii, op.cit., 117.

GVNP, 63-64.

37


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Germany.38 The three named Baltic ports would be closed to shipping in winter, so merchants would have to take account of that in choosing lantvart or watervart. It was, however, not so much the distinction between lantvart and watervart which was decisive for the internal organization of the St.Peter’s Court, but the one between somervart and wintervart. Considering that roads in Northern Russia would become totally impassable in spring, it was in the nature of things that all voyages to Novgorod occurred in semi-annual waves. Merchants who arrived in early summer, usually by water, had to leave during autumn, if they did not want to waste an entire year. The same went for winter merchants, who had to leave before spring set in. Only exceptionally, when sudden frost or thaw occurred, would this schedule be disturbed, and the Skra had special rules covering such eventualities (IIIb art.2). As a result of all this, the German settlement had a population which changed completely twice a year, and this obviously called for a type of organization which was in many ways different from that of a permanently inhabited settlement. The German Court of St.Peter was the principal settlement of the German merchants. There was also a “Gothenhof ”, which originally belonged to the community of Scandinavian merchants, mostly from Visby (which had a mixed Scandinavian-German population).39 In later years, when the Scandinavian element in Novgorod’s international trade had shrunk to the point of virtual disappearance, the Gothic Court passed into German possession.40 The central location of the German Court, at the main market square on the Merchant Side of the city, has been mentioned above. A detailed picture of its physical characteristics can be gleaned from various sources, from the Skra itself and also from the archeological excavations.41 It was surrounded by a wooden fence or stockade and had streets paved with wooden beams, like the rest of Novgorod. The main building was s stone church, the German (Roman-Catholic) church of St.Peter, used not only for religious services, but also as a storehouse for goods. There were a number of wooden dwelling houses, called stove in the Skra, and storehouses. The 38

39

40 41

Riesenkampf, op.cit., 103.

On the “Gothenhof ”, see Rybina, 89-100. In later times. there was also a Swedish court in Novgorod, see I.P. Shaskol’skii, “O deiatel’nosti shvedskogo gostinogo dvora v Novgorode v XVII v.”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik, 2(12), Leningrad, 1984, 188-202.

Riesenkampf, op.cit., 17-18; Berezhkov, op.cit., 61 and 136. The treaty of 1439 speaks of “beyden Dutschen hoven” (both German courts), GVNP, 113.

See, especially, Rybina, 101-110.

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latter were used, when needed, for housing visiting merchants and their personnel; they are designated as klete or potklete in the Skra, from Russian klet’ and podklet. Certain other specialized buildings are also referred to by their Russian names in the Skra, such as the gridenisse or guardroom and the pogribbe (pogreb), the prison. An important factor determining many details of the legal regulation of the German community in Novgorod was the character of GermanRussian trade. This was based predominantly on barter.42 The principal Russian exports were skins and furs of various kinds and beeswax (for making candles), the Germans brought many different kinds of textiles. The Skra forbade individual German merchants to bring in more than 1000 marks in cash (IIIa art.11, IIIb art.6, V art.89). On the German side, by virtue of the numerous regulations in the Skra, trading with the Russians was subject to many restrictions. Not a few of these were aimed at protecting the monopolistic position of the Hanseatic merchants on the Novgorod market. German merchants, for instance, were forbidden to engage in commission trade for English, Flemish or Walloon merchants, to be in partnership with them, or to act as brokers between them and Russian merchants (III art.10, IIIa art.10[12], V art.83). The German community in Novgorod represented one corner of a triangular relationship, of which the Russians and the Hanseatic League were the other two corners. The Hanseatic League itself was hierarchically superior to the St.Peter’s Court; as mentioned, it was the League that negotiated with the Russians concerning the rights and the position of the Court of St.Peter. The League, however, traditionally considered to consist of an association of 73 cities, was by no means a monolithic body. In its relations with the Russians, there were very noticeable shifts in power, influence, and interest through the ages. Initially, the leading position was taken by the city of Visby, but very soon this place was taken over by Lübeck. During the 15th century, the overseas cities gradually relaxed their grip and were increasingly replaced by the Baltic cities of Riga, Reval (also called Tallinn or Kolyvan’), and Dorpat (also called Iur’ev, the present-day Tartu).43 The exclusive legislative competence of the League was maintained throughout the entire period. Several editions of the Skra prescribed obligatory reference of legal questions not covered by the Skra itself to the city council of Lübeck (II arts.60 and 64, III art.68, VI art.81), or forbade additions or emendations in the Skra without the permission of the principal Hanseatic cities (IV art.117, V art.138, VI art.81). Nevertheless, there are quite a number of provisions in the Skra, especially in the 42 43

Riesenkampf, op.cit., 118-124; Nikitskii, op.cit., 151-155.

This development is extensively discussed by Rybina (op.cit) and Kazakova (op.cit.).


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later editions, resulting from the regulatory activity of the German community in Novgorod itself. It is not at all clear whether in all such cases the agreement of the competent Hanseatic authorities was obtained. Indeed, it would seem unlikely, in view of the difficulty of communication, that the Court of St.Peter would not engage in drawing up its own regulations, especially if they were urgently required or of a technical nature.44 This is obliquely confirmed by the Skra itself (V art.2), which forbade the Novgorod community to issue weighty or serious ordinances and orders (zettynge offte bot grot offte swar) without the consent of the Hanseatic cities, implying that trivial matters could well be handled locally. The principal agents of the Court of St.Peter were the aldermen and the assembly. The highest position among the Germans in Novgorod was occupied by the alderman of the court (olderman des hoves). Initially, there was only one; from Lübeck or from Visby, eligibility alternating between the two cities (V art.76). From Skra VI (art.3) on, there were two.45 They appointed their own deputies. They were the chief judicial and administrative officers of the community. Certain administrative, judicial and executive functions were carried out by the two aldermen of St.Peter. They were also appointed by the alderman of the court.46 At a later stage, the functions of alderman of the court and alderman of St.Peter became fused. A number of lower officials and their duties are mentioned in the Skra, such as the Hovesknecht, the Vogt, and the Vorstender. Other specialized functions included the inspectors of textiles (Wantvinder), of wax (Wasvinder), of wine (Winvinder), of honey (Honichvinder), the church guard, the guard of the court, the nightwatchmen, and others. A special position was occupied by the priest, who would occasionally act as the scribe, and to whose housing and maintenance the Skra devoted several articles. The highest authority within the Court of St.Peter belonged to the general assembly of the merchants, called the stevene. This body, as pointed out before, exercized certain legislative functions, took various administrative decisions, and acted as the appeal court for judicial decisions of 44

45

As an example, Skra V art.117 could be mentioned, forbidding the selling of beer in the Gothic Court; especially Skra IV-V is rich in this type of local ordinance. Frequently, the consent of the cities is mentioned, e.g. Skra V art.109: “mit vulbort der meynen steden.” Above, we have pointed to the treaty of 1439, which was not concluded on the German side by the Hanseatic cities, but by the Court of St.Peter itself.

46

Skra VI art.71 (=V art.82) and Skra V art.131 speak of “both aldermen”; it is not clear whether in these cases the two aldermen of the court are meant, or the merged offices of the aldermen of the court and the aldermen of St.Peter.

According to Skra III art.1 the aldermen of St.Peter were appointed by the alderman of the court; according to Skra I-II art.1 they were elected by the general assembly.

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other functionaries. Occasionally, the stevene tried serious criminal cases itself (esp. theft). Attendance at the stevene was compulsory and absentees were fined. Only independent merchants, who were not in the service of other merchants, were fully-fledged members of the stevene. Junior merchants, usually called knape or knechte in the Skra, were apprenticed to senior, independent merchants. Their relationships were regulated in the Skra and the junior merchants were not without influence or status in the community; they were eligible to certain offices. Several provisions of the Skra give an impression of the numerical strength of the German commercial community in Novgorod. A minimum occupation of six merchants and nine knechte was required to keep the church open (V art.29). When the church had to be closed, the keys were handed over for safe-keeping to the bishop of Novgorod or the abbot of St.George (V art.38; the monastery of St.George, better known as the Iur’ev monastery, was one of the oldest Russian monasteries and was located south of the city). The dwelling houses in the Court of St.Peter were supposed to house no more than thirty merchants and their following (V art.36). With the permission of the aldermen, a higher occupancy was allowed. Otherwise, the surplus would have to be housed in the Gothic Court or in private houses of Russians. When there were thirty merchants present in Novgorod, one was obliged to proceed to the election of aldermen (VI art.3). Obviously, the German population did not consist only of merchants and their limited number of knechte. Various kinds of craftsmen are mentioned in the Skra, and then there must have been ships’ crews and the personal servants of the merchants.

9. The Skra of Novgorod and its Different Versions The earliest publication of the Skra was in 1828 in Copenhagen by H. Behrmann.47 This edition was used in many 19th century German and Russian historical studies, together with a somewhat later edition by G.F. Sartorius in his history of the Hanseatic League.48 The most important 19th century study on the Skra was by F. Frensdorff, who devoted two long articles to it in 1887.49 Of the older Russian works which pay much attention to the Skra, N.G. Riesenkampf ’s Dorpat dissertation on the

47 48 49

H. Behrmann, De Scra van Nougarden, Copenhagen, 1828.

G.G. Sartorius, Urkundliche Geschichte des Ursprunges der deutschen Hanse, Vols.1-2, Hamburg, 1830.

See note 1.


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German Court in Novgorod50 and M. Berezhkov’s monograph on Russian Hanseatic trade51 should be mentioned. The most complete edition of all available versions of the Skra is by W. Schlüter.52 This still indispensable work, published in Dorpat in 1911, contains an introduction which deals with diplomatic and philological aspects of the various manuscripts, the texts of the seven main versions with variants, and several extensive indices, together with a vocabulary. Among modern Russian (Soviet) authors, it was especially N.A. Kazakova who wrote several studies on relations between medieval Novgorod and Western and Northern Europe, and her works offer much that is of interest for a general understanding of the historical and economic background of the Skra.53 More recently, E.A. Rybina, who had written several papers on the same theme, published a monograph on foreign settlements in Novgorod from the 12th to the 17th century; most of this study is devoted to the Skra.54 A Russian translation by I.E. Kleinenberg of Skra IV has been added. The Skra—as an internal code of law for the German merchant community in Novgorod—was enacted by the Hanseatic League, and as circumstances changed and new issues emerged, old provisions were rendered obsolete and dropped and new ones incorporated. In this way, the seven principal versions, as distinguished by Schlüter, came into being. Of these, the first three are closely related. The first and briefest version of the Skra consists of a preamble and eleven articles (according to Schlüter’s edition). Its enactment occurred in the 13th century, in all likelihood sometime after 1250. With the exception of its last provision, it was completely incorporated in the second version, enacted in 1295 in Lübeck (the first Skra was probably drawn up in Visby). In the second Skra, after the provisions taken over from the first Skra, another thirtyfive articles follow. The third Skra, with minor changes, copied the second Skra, but had five additional articles. It was probably enacted around the year 1325 in either Riga or Visby. Sometime between the second and the third Skra, a short law applicable to the German community in Novgorod came into force. It was based on the first and second Skra, but contained also a few new provisions; Schlüter designates it as Skra IIIa. A similar 50 51 52

See note 22.

See note 21.

53

See note 1.

54

See notes 15 and 20. Also of interest is, by the same author, “Eshche raz o zakrytii ganzeiskogo dvora v Novgorode v 1494 g.”, V.L. Ianin (ed.), Novgorodskii istoricheskii sbornik, 2 (12), Leningrad, 1984, 177-187.

See note 13.

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shorter law, designated as Skra IIIb, was drawn up by the assembly of the Hanseatic cities. Skra IIIb is dated 1346. Two of its nine articles are inspired by provisions from Skra IIIa; the remainder are new provisions. The fourth, fifth and sixth Skra are also closely related to each other, especially the fourth and the fifth. All three were drafted in Novgorod, under the guidance of the envoys from the leading Hanseatic cities, and then submitted for approval to the League. The fourth Skra contained a number of borrowings from Skra I, II and III, and especially from IIIa and IIIb, but the vast majority of the provisions were new. The fourth and fifth Skra, unlike their predecessors, bear to a considerable extent the character of compilations and consolidations of previously enacted incidental decrees. Schlüter concluded from internal evidence that editorial work on Skra IV must have been begun after 1355 and completed before 1361. Three final provisions (arts.117-119), dated 1370 and 1371, must have been appended subsequently. Skra V incorporated almost the entire text of Skra IV, but had an additional number of about thirty articles. Its initial version was probably drawn up in 1373, but several new provisions were inserted during the following twenty years. Skra VI was mainly a reworking of Skra V, with a few additions. Its first article clearly explained the political and international circumstances of its enactment. After Novgorod had lost its independence and was incorporated into the empire of the Muscovy grand prince, a long period of controversy between the Hanseatic cities and Moscow ensued. The Court of St.Peter was closed in 1494, several German merchants were incarcerated by the prince and their goods were seized.55 The conflict was finally resolved by the treaty of 1514. As the text of the Skra (i.e. Skra V) had disappeared from the church of St.Peter where it was traditionally kept, a new text was drafted and approved by the council of Lübeck and the other German cities. The seventh Skra need only be mentioned as an epilogue to the history of the Court of St.Peter in Novgorod. The latter, after its restoration in 1514, never regained its former economic vigour.56 Several times during the 16th century the Court was occupied by the Russians. In 1541, it was completely destroyed and sacked. An important factor in the failure to 55

56

See, on this period, Kazakova, 262-337 and also the article by the same author quoted in note 53; further Riesenkampf, op.cit., 93-98; Berezhkov, op.cit., 256-264.

Even A.P. Pronshtein, who in his Velikii Novgorod v XVI veke, Khar’kov, 1957, tried very hard to argue that annexation by Moscow was a good thing for Novgorod, does not succeed in demonstrating that it had a positive effect on Novgorod’s trade with Europe; see 128-138.


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revitalize trade between Novgorod and the North German cities, was the new role of the principal commercial centres in the Baltic lands, especially Reval, Dorpat, and Narva. They had become the focal point for Russian-West-European trade, and they were understandably unwilling to favour the rehabilitation of Novgorod in this respect. In 1603, Lübeck finally succeeded in receiving a concession from tsar Boris Godunov for its merchants to trade in Novgorod and several other Russian cities, and this concession included the permission to regulate the internal order among the German merchants communities in those cities. On the basis of this concession Lübeck, in 1604, issued the text known as Skra VII. It applied not only to Novgorod, but also to other German settlements in Russian cities. It is obvious, however, from the text of Skra VII, that the drafters had Novgorod in mind. Moreover, Skra VII is based to a great extent on Skra VI. Unlike its predecessors, Skra VII is written in High German; the other Skras were written in Low German, which is closer to Dutch than to High German. Lübeck’s attempt to revive its commercial presence in Novgorod did not lead to much. It appears that the Court of St.Peter gradually lost all importance and finally disappeared without anybody really noticing. For these reasons, Skra VII will be disregarded in the rest of this chapter.

10. Sources and Contents of the Different Versions of the Skra Looking at the textual development of the different versions of the Skra, the general pattern, as has already been mentioned, is that each new Skra is based to some extent on its predecessor. The connection is particularly strong within the sequence of Skra I, II and III and within the sequence Skra IV, V and VI. The link is much weaker between Skra III and IV. As a result of this, notwithstanding the often strong connections between immediately subsequent versions of the Skra, the total content has been changing cumulatively. The longest continuity that can be traced is between a part of article 5 of Skra I and article 130 of Skra V. The rule concerns the master merchant’s responsibility for his apprentice (knape). In Skra I the rule says: “Dhar en mesterman enen knapen entfet upe watervarth to Nogarden, he ne mach in nich vorwisen, he ne brenge ene wedher, dhar he ene entfene, it ne si alsodan sake, dhar he ene rechte umbe vorwissen moge. Comet oc enem knape ungelucke to an suke, umbe dat ne mach ene sin here nicht vorwisen.” (“When a master accepts an apprentice for watervart to Novgorod, he may not dismiss him [prematurely], but must take him back from where he took him, unless he had

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Law in Medieval Russia a valid reason to dismiss him. If an apprentice suffers an accident or an illness, his master may not dismiss him for that reason.”)

A similar rule is found in Skra II and II, is missing in Skra IV, but returns in Skra V in the following shape: “Vortmer dar een mesterman enen knapen entfeyt uppe de vart to Nougarden wart, he ene mach ene nych vorwysen, he ene brenge ene weder, dar he ene nam; id ene sy also merclike zaeke, dar ene de here myt rechte mochte vorwysen. Isset ok zaeke, dat deme knaepe zukedage to komen, umme dat mach ene syn here nycht vorwysen; ok ene sal een knaepe des gheliken van syneme heren nycht scheeden, id ene sy myt willen synes heren.” (“When, moreover, a master receives an apprentice for the voyage to Novgorod, he may not dismiss him, but must take him back from where he took him; unless it is clear that he had a valid reason to dismiss him. If it would happen that the apprentice falls ill, then his master may not dismiss him for that reason; an apprentice shall equally not part from his master, unless with the consent of his master.”)

As can be seen, the new rule covers any voyage to Novgorod, not only watervart; otherwise, the main substantive alteration is the addition of the last sentence in Skra V: an apprentice may terminate his contract with his master only with the latter’s approval. The intervening texts of Skra II and III show clearly how this rule originated. They add to the last sentence of the quoted passage of Skra I the words: “it ne si mit erer beider willen” (“unless it be with the will of both of them”). In other words, according to Skra II and III, the contract between master and apprentice could be terminated in case of illness of the latter, provided both sides agreed to this. This innovation was generalized then, beyond the specific case of illness, in Skra V. This example has been given to demonstrate the mechanism of change and growth, which has contributed to the shaping of the subsequent versions of the Skra. In many cases this mechanism may explain the origins of particular provisions in the later Skras. It does not answer, of course, the more fundamental question of the origin of the first Skra and of any provisions in later Skras that do not have an ancestor in a previous Skra. The solution to this problem is best approached in a roundabout way, by looking first at the second Skra. Here we find after the almost unaltered copying of the text of the first Skra, another fifty-five provisions (arts.1064). Of these, about forty and possibly a few more, have undoubtedly been taken over from the written law of Lübeck, or, occasionally, other German cities. This connection has been firmly established by Frensdorff and Schlüter.57 Among the remaining part of the provisions of this second part of the second Skra there are several which have been specifically written for the Novgorod settlement, and it would appear pointless to 57

See the works quoted in note 1.


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look for any more distant origins. As an example, one could mention the regulation of relations between lantvart and watervart (I art.2), or between somervart and wintervart (I art.3), and similar provisions.58 To return to the first Skra: none of its few provisions (arts.1-9b) can be traced clearly to the law of Lübeck or other Hanseatic cities. Schlüter regards Skra I as the oldest version, based on customary law.59 In this connection he refers to the words from its preamble: “[…] recht, dhat van aneginne gehalten ist unde gewesen hevet in dheme hove dhere Dhutschen to Nogarden […]” (“the law that from the beginning has been applied and observed in the court of the Germans in Novgorod”). These words, by themselves, do not prove that no older Skra preceded Skra I, because the same words are repeated in the preambles of Skra II and Skra III, which in fact were preceded by earlier texts. They do, however, suggest that Skra I is based on a written rendering of local custom. Indeed, most of the provisions of Skra I are concerned with the most elementary arrangements for the ordering of affairs of the German settlement: the election of the aldermen, the relations between somervart and wintervart when their sojourns in Novgorod overlap, the convocation of the assembly (stevene), housing, the relations between masters and apprentices (knape), guard duty, and contributions to the general funds. In the absence of evidence pointing in another direction, the most acceptable assumption is that Skra I represents essentially the fixation in writing of the most basic organizational arrangements of the German community in Novgorod, as they had emerged more or less spontaneously in the past. When we look at the entire complex of the first three Skras, i.e. Skra I (incorporated into Skra II and III), Skra II, Skra III (consisting mainly of Skra II, with the addition of a few articles at the end of the text), and the shorter laws known as Skra IIIa and IIIb (enacted resp. shortly before and after Skra III), the following components can be identified: Skra I (basic organizational arrangements of the Court of St.Peter, of customary law origin); provisions taken over from the domestic law of the Hanseatic cities (esp. Lübeck), mainly regulating the internal civil and criminal law of the 58 59

In similar vein, Frensdorff, Vol.1, 25. Schlüter, 8. �� Whether there are any parallels between the Skra and the contemporary law of the Baltic territories is an approach nobody has yet attempted, to my knowledge. These laws were strongly influenced by medieval German law but retained a number of indigenous features. Cf. E.L. Nazarova, “«Livonskie Pravdy» kak istoricheskii istochnik”, V.T. Pashuto (ed.), Drevneishie gosudarstva na territorii SSSR 1979 god, Moskva, 1980, 5-218 (also contains Low Middle German and Russian texts of the various laws).

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Novgorod settlement, and forming the bulk of the provisions of Skra II and III; legislation specially adapted to the requirements of the Novgorod settlement, some of it probably based on customary arrangements having emerged gradually during the development of the settlement. The last mentioned category includes the new provisions of Skra III (as compared with Skra II), and Skra IIIa and IIIb in their entirety. With regard to those provisions of the first three Skras which do not have a North German origin, the intriguing question poses itself of possible borrowings from Russian law.60 Russian influence is undeniable in the terminology of the Skra, which uses a considerable number of Russian words. Names of localities (pogribbe, cleit, potcleit, gridenisse) have already been mentioned, Then, there is a series of terms denoting various types of furs and skins (troynisse, doynisse, schevenisse, popplen). Of special importance is the occurrence of the Russian monetary unit of kune, because it helps to link up the Russian and German monetary systems.61 Fifty kune made up one mark kune, which was equal to the Russian grivna kun. Initially, four mark kune was equal to one silver mark (grivna serebra);62 in later times, the silver mark had increased to eight mark kune (this seems to have been the case already at the time of Skra III).63 On a more substantive level, the influence, not of Russian law, but of the Russian-German treaties may be observed in a few instances. The concession of three land routes to the German merchants, made in the treaty of 1301, lies at the basis of article 4 of Skra IIIb. In a negative sense, the influence of the treaties on the Skra is felt in the absence of certain provisions in the Skra, viz. concerning those subjects which had already been covered by the treaties. This is especially noticeable in regard of the relations between Germans and Russians. The Skra has a few scattered 60 61

In line with a certain tradition of pre-revolutionary Russian scholarship, such a possibility is rejected emphatically by Nikitskii, op.cit., 131. The currency system of the Skra is discussed at length by Schlüter, 122-126 (Index). See, also: I.E. Kleinenberg, “O denezhnykh edinitsakh v «Pamiati, kak torgovali dosele novgorodtsy»”, Vspomogatel’nye istoricheskie distsipliny, Tom XIII, Leningrad, 1982,148154; S.N. Kisterev, “Den’gi v Novgorode na rubezhe XIV-XV vv.”, L.A. Timoshina (ed.), Torgovlia i predprinimatel’stvo v feodal’noi Rossii [Golikova Festschrift], Moskva, 1994, 59-84; V.L. Ianin, “K istorii formirovaniia novgorodskoi denezhnoi sistemy XV v.”, Vspomogatel’nye istoricheskie distsipliny, Tom XI, Leningrad, 1979, 251-258.

62

63

The equation of one mark silver to four mark kune (grivna kune, Mark Pfennige) is made explicit in the treaty of 1229 between the prince of Smolensk and the cities of Riga and Visby; cf. PRP II, 58.

Schlüter, 125.


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provisions on this subject, but none of them repeat what had already been regulated by the treaties. Skra II and III article 30 dealt with the case of hitting somebody’s ear: “So war ein man den andren to den oren sleit, de sal beteren anderhalven verding silveres […]” (“If a man hits another on the ears, he shall pay one and a half verding […]”). Schlüter points to a parallel in Lübeck law where orslage is mentioned together with two other minor instances of violence against the person.64 There is a closer parallel, however, with the treaty of 1269, which provides: “Slet en man dhen andern an sin ore ofte an sinen hals, he schal eme beteren 3 verdhinge” (“If a man hits another on his ear or his neck, he shall pay 3 verdings”). This formula is also reminiscent of the Russkaia Pravda, which does not envisage this particular offence, but contains similar formulas for related offences, such as hitting with a fist or blunt object, pulling or pushing somebody, etc. (Short Pravda, arts.3 and 10). One of the obscurest questions concerning the relations between German and Russian law as reflected in the Skra is the tariff system of fixed fines. The older Russian laws such as the Russkaia Pravda, the basic Russian-German treaty of 1191, the various versions of the Skra, and the German laws on which the earlier Skras are based in good part, all know a system of fixed fines for particular offences. As mentioned before, the system of the 1191 treaty is unmistakably based on the Russkaia Pravda. Equally, there are numerous parallels between the law of Lübeck and the Skra on this point. Would the occasional deviations of the Skra from its German model have been inspired by the Russian tariff system prevalent in Novgorod at the time? 65 The most promising topic in this respect is the complex of assault, battery, and inflicting injuries, because it occurs in all four sources mentioned. An exhaustive exposition of the problem would require an explanation of the currency systems operative in the regions concerned and a full discussion would therefore take too much space here. In my opinion, some influence of the Russian tariff system on the system of the Skra is probable, but difficult to prove. Two factors which complicate matters in this respect are the incertitude surrounding the exact definition of the value of medieval currency and the general similarity between the structures of medieval German and Old-Russian tariff systems. This fact has been noted before in connection with the Russkaia Pravda and has understandably given rise to much debate regarding the alleged Germanic influences on early Russian law.66 64 65 66

Schlüter, 87.

Cf. Frensdorff, Vol.1, 16-17.

S.V. Iushkov, Russkaia Pravda, Moskva, 1950, devoted an entire chapter to this subject, in which the extensive older literature is cited. See, also, the chapter on the Russkaia Pravda in this work.

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Another example of a legal institution which is found in Lübeck law, the Russkaia Pravda (Short Pravda, art.10), as well as in the Skra is the requirement of two witnesses in certain law-suits. Again it is difficult to say with certainty what the origin of the respective provisions in the Skra (III arts.20 and 61) is. One of the provisions of Skra III which is not based on Lübeck law, article 66, prescribes capital punishment for the thief who had already been banished (for previous thefts) from the Court of St.Peter. This provision remotely resembles a provision from the Charter of Dvina Land from 1397, which for the first time introduced capital punishment in Russian law for theft, at least for repeated theft.67 A similar rule occurs in the Charter of Pskov (art.8), the final version of which was probably enacted between 1462 and 1467.68 Several parts of this law, however, are of an earlier, 14th century origin, and article 8 is usually considered as among these earlier elements.69 The well-known medieval institution of reference to the authorities of the mother-city is mentioned in article 60 of Skra II and in a more elaborate form in article 68 of Skra III. Article 60 provided that if the German merchants in Novgorod were unsure about the existence of a certain rule, they should write to the council of Lübeck; the decision of the latter would be incorporated in the Skra. Article 68 addressed itself to uncertainty of the law in a specific lawsuit; in such a case the proceedings would be suspended until the councils of Lübeck and Visby would have ruled on the question in dispute. Then, the case would be decided in Novgorod and the new rule inserted in the Skra. Along with the many parallels in German law, article 108 of the Pskov Charter comes to mind, of which the first sentence provides: “And if any provision of customary law is missing in this charter, the mayor may refer the matter to Lord Pskov [the traditional title of the city, as “the Lord Novgorod”] at the city assembly, advising the insertion of a new clause accordingly.” (Vernadsky’s translation.) This rule covers the same situation as the one envisaged in 67

68

Text of the Charter of Dvina Land in PRP III, 162-164; also in GVNP, 144-146, and in RZ II, 180-186. English translation in G.V. Vernadsky (transl.), Medieval Russian Laws, New York, 1947, 57-60; and also in D.H. Kaiser (ed.), The Laws of Rus’-Tenth to Fifteenth Centuries, Salt Lake City, 1992, 111-113 (also includes Russian text). On the Charter of Dvina Land see, also, L.V. Cherepnin, Russkie feodal’nye arkhivy XIV-XV vv., Vol.1, Moskva/Leningrad, 1948, 397-407.

69

Text of the Charter of Pskov, followed by a translation into modern Russian, in PRP II, 286-324 and in RZ I, 321-386; also in I.D. Martysevich, Pskovskaia Sudnaia Gramota, Moskva, 1951; English translation in Vernadsky, op.cit., 61-82, and (with Russian text) in Kaiser, op.cit., 87-105. See, also, Cherepnin, op.cit., 408-447.

Cherepnin, op.cit., 443.


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article 60 of Skra II: an hiatus in the law, while article 68 of Skra III embraces not only this legislative aspect, but also the procedural one: there is something like an intermediate cassational appeal to the mother-cities, and this results in a decision which not only settles the dispute, but also adds something to the Skra. Article 108 of the Charter of Pskov is regarded as belonging to its oldest chronological layer,70 but whether there is any connection with article 60 of Skra II is hard to say. The next question concerns the relationship between the first and second series of the Skra, i.e. the sequences I-II-IIa-III-IIIb and IV-V-VI. A comparison of the contents of the Skras shows that: (a)

about half the number of provisions from Skra I reappear in modified form in Skra IV-V; this makes sense, if, as we have argued, Skra I is primarily concerned with certain basic rules regarding the organization of St.Peter’s Court, such as rules regulating the election of aldermen; (b) a comparatively small number (about ten) of provisions from Skra II-III reappear in Skra IV-V; (c) the shorter additional laws known as Skra IIIa and IIIb are comparatively important sources for Skra IV-V; four provisions from Skra IIIa and six from Skra IIIb return in Skra IV-V. Altogether, borrowings from the earlier Skras account for about 22% of the provisions of Skra IV and for about 18% of the provisions of the somewhat longer Skra V. So, where does the bulk of the provisions from Skra IV-V come from? It has been mentioned that Skra IV-V bears very clear traces of being a compilation of shorter previous enactments. Many of the latter are still completely recognizable in that the substantive rule is preceded or followed by words indicating that such-and-such a decree was issued at a specific date. Some of these decrees contain a single provision only, but there are also clusters of provisions which are internally related and connected with a single date. They are often recognizable by the use of the words “Be it known to all who shall see these letters or who shall hear them read out” (“Witlik sy alle den genen de dysse schryfft seyn eder horen lesen”) at the beginning of the first provision of the fragment, and “This decree was made in the year N after the birth of God, on such-and-such a day” (“Dusse wilkor wart ghemaket na Godes bord […]”) at the end of the last provision. The intermediate provisions normally start with the word “Further” (“Vortmer”). 70

Iu.G. Alekseev, Pskovskaia Sudnaia gramota i ee vremia. Razvitie feodal’nykh otnoshenii na Rusi XIV-XV vv., Leningrad, 1980, 21.

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One of the longest and best identifiable fragments begins at Skra V article 10 and ends at article 31. The latter provision offers a good insight into the legislative technique of the later Skras. It provides: “Dat dusse olden dink vor up eyn nyghe dink vorgaddert synt, dat schach in ener meynen stevene myt vullbort des meynen dutschen copmans na der bord unses Heren MCCCLIIII in sunte Gregorius dage.” (“That these old rules were collected into a new set of rules happened in a general assembly of all the German merchants [in the year] after the birth of our Lord 1354 on the feast of St.Gregory.”)

The rules in this fragment concerned two subjects: the internal order of the German Court and the regulation of trade. They offer much more detailed regulation of matters covered in a more general manner in the earlier Skras. For instance, Skra II-III contains a single rule (art.31) concerning breaches of the peace in certain public places (the guardhouse, the churchyard, the church, the great stove); instead, Skra IV-V has several provisions dealing with behaviour in the church alone (arts.10, 18, 22, 23, 25). What appears to have happened is that, on the basis of earlier laws and, perhaps, custom as well, new and more detailed customs developed, which solidified into specific enactments. When Skra IV and V were drafted, these specific enactments were collected and strung together into a more comprehensive piece of legislation. The fragment referred to in the preceding paragraph is typical in another aspect as well. Almost all provisions of Skra IV-V that have not been borrowed from earlier Skra versions fall into the categories of either regulation of daily life and duties, or of trade. With regard to trade regulation, the approach of the later Skras is strongly at variance with Russian practice, characterized by an almost complete absence of such regulation in the Middle Ages. There is plenty of evidence in medieval Russian law for the importance of commerce, particularly in the Expanded Pravda and in the Charter of Pskov, but clearly no urgent need was felt to regulate the commercial activities themselves. Skra IV-V on the contrary goes to extremes in prescribing the German merchants of Novgorod how and how not to buy and sell.71 Merchants’ apprentices, for instance, in an apparent effort to prevent small-scale trade which could undercut the trade of the merchants themselves, were forbidden to sell goods in quantities below a certain minimum: blue yarn by pounds, other textiles by half lengths, needles by the hundred, etc. (Skra V art.41). The rules for conducting trade in Skra IV-V are also indicative of the great distrust in which the Russian trading partners were held.72 71 72

Nikitskii, op.cit., 138-140, makes the same observation.

This is also pointed out by Berezhkov, op.cit., 144.


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Connections with Russian law are not easily discernible in Skra IV-V. As in earlier Skras, there are still many traces of Russian terminology. In at least one case Skra V seems to have taken account of the system of adjudication of Russian-German disputes as outlined in the treaty of 1269. Skra III contained a provision (art.65) which dealt with injuries sustained by a German and inflicted by a Russian, or other serious offences against the Court of St.Peter committed by a Russian (“edder breket he groveliken wedder den hof ”, “or if he commits a major offence against the Court”). Skra III article 65 referred such cases to the Novgorod court of the tysiatskii (hertoghe) and aldermen, with the possibility of excluding the Russian offender from the German Court if no acceptable solution was reached by the Russian judges. The treaty of 1269 referred Russian-German disputes in general terms to the Novgorod court, without the possibility of exclusion: “Schut en tvist tuschen dhen Dudeschen unde den Nogarderen, dhe twist sal endegen up sente Johannis hove vor deme borchgreven, dheme hertoghen unde vor dhen copluden” (translation provided above). Skra V article 121 repeats this rule in similar terms: “Vortmer schude jenych twyst tusschen eme Dutschen und Russen, so sal de Dutsche dat vorfolgen na der krusekussynge und na den breven vor deme hertoghen myt den olderluden […]”73 (“Moreover, if a dispute arises between a German and a Russian, then the German shall prosecute it after [taking] the oath and after [presenting] the paper before the tysiatskii together with the aldermen […]”)

and then adds the possibility, not of excluding the Russian defendant from trading in the German Court, but of a less drastic measure: an official description of the dispute to be deposited with the authorities in the Court of St.Peter, in the case the Russian judges fail to do justice to the German claim (“[…] kan eme dar dan neyn recht beschen […]”). Another, rather more remote parallel with Russian law may be seen in the oath taken by the aldermen (Skra V art.132), which is reminiscent of the oaths to be sworn by Russian officials, such as those prescribed by the Charter of Pskov, article 2 and 5 or the Charter of Novgorod, article 4. In view of what has been said before about the relationship between Skra V and Skra VI, there is no need to add much in respect of the sources of Skra VI. One of the very few provisions of Skra VI which do not go back to earlier Skras is article 73: insulting or injuring a Russian. One of the forms of insulting mentioned in article 73 is pulling a Russian’s beard. This clause was probably inspired by the special protection which Rus73

The kissing of the cross (krusekussinge, krestnoe tselovanie) was the traditional form of the oath in medieval Russia. It is often prescribed by the Charter of Novgorod, and according to Cherepnin, op.cit., 387, its specific meaning in Novgorod was recognition of Novgorod law.

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sian law had afforded the beard from the earliest days of the Short Pravda (art.8).

11. Concluding Remarks In German legal history, the Skra is usually viewed as an offshoot of the medieval law of Northern Germany and this view fits into the perspective of the Novgorod settlement as a distant outpost of the Hanseatic League. As we have seen, this view is largely correct with respect to the earlier versions of the Skra (I-II-III). The more recent layers (IV-VVI) are still strongly connected with the main Hanseatic cities in their origins, although they are to a much greater extent the product of local law-creating activities. In Russian legal history, the Skra has not commanded much attention, primarily because it was regarded as German law and, therefore, not of great interest to the history of Russian law, and possibly also on account of its linguistic inaccessibility. In the principal handbooks of Russian legal history, the Skra is not even mentioned. Both views tend to look at the Skra as a legal document operating in a kind of vacuum, while in fact the raison d’être of the German settlement in Novgorod was intense contact with its Russian surroundings, at least in conducting commercial transactions. The legal skeleton of these contacts were the Skra (regulating the internal affairs of the German community and some of its relations with the Russians), the German-Russian treaties (regulating the position of the German settlement and most of its relations with the Russians), and the domestic law of Novgorod. Of course, modern ideas of private international law cannot be indiscriminately applied to the relations between Germans and Russians in medieval Novgorod. On the other hand, the question of applicable law would certainly have arisen in those days too. If we consider that transactions took place in Novgorod and that disputes were tried in Novgorod by the Russian court, it is obvious that in principle Russian law was applied (although, as we have seen, the treaties would sometimes provide otherwise). The difficulty in establishing Novgorod law on the basis of its very defective contemporary sources has been referred to above. To some extent, this difficulty is alleviated by taking recourse to the Charter of Pskov. This law is from the right period, it devotes a great deal of attention to substantive private law, and the law of Pskov (for a long time subordinate to Novgorod and similarly engaged in trade with Western partners) cannot have been very different from the law of Novgorod during the same


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era. We have pointed to a few parallels between the Skra and the Charter of Pskov. The treaties between Novgorod, Russian princes and the Germans and other Western powers are rightly considered among the most important monuments of Russian legal history by Russian historians. But, just as the treaties are essential in achieving a proper understanding of the Skra, so the Skra can do much to paint in the framework outlined by the treaties. For several centuries, the German settlement in Novgorod was the most important point of contact between Russia and Western Europe; it is, therefore, not realistic to regard the Skra merely as a trivial by-law of a handful of merchants, tucked away in an obscure corner of the world, in a forgotten period. Returning to our previous observation that the Skra should not be seen as something operating in a legal vacuum, the general impression received when one places it in the context of contemporary Russian law is one of similarity. Notwithstanding a number of different institutions, the cultural shock does not seem to have been very strong on either side. The two legal spheres could coexist and penetrate each other without too much trouble because they were sufficiently germane. On this basis, they were able to agree on workable institutions and practices which allowed them several centuries of reasonably peaceful relations.

Chapter 10 Medieval Law in Transcaucasia— on the Periphery of European Legal History 1. Introduction The re-emergence of Armenia and Georgia as legally independent and sovereign states has re-awakened an interest in their legal systems and their history. For centuries, these countries were hidden from the view of Western Europe, located as they were behind the vast Russian and Ottoman empires, themselves states which played mostly a marginal role as European powers. Through the ages, the fate of Armenia and Georgia has largely been determined by the histories of their more powerful neighbours, the successive empires of Assyrians, Persians, Alexander the Great, Romans, Parthians, Arabs, Seldjuks, Mongols, Ottomans and Russians. When circumstances were favourable, Armenia and Georgia were occasionally able to consolidate their political position in the form of an independent or semi-independent state. These states have left a considerable heritage of legislation and other legal sources. The purpose of this chapter is to offer a general overview of the most important material available and to indicate, however briefly and provisionally, the place of medieval Armenian and Georgian law in the context of European legal history. Inevitably, this will have to be largely an exercise in external legal history; a more substantive treatment of the contents of the available material would exceed the limits of this chapter. The legal history of Azerbaidzhan, at present the third independent state in Transcaucasia, will not be discussed. Azerbaidzhan was conquered by the Arabs in 642, when it became part of the world of Islam. During the 9th century, the original Iranian population was turkicized. Soon afterwards, the country fell under Persian domination which continued, with only minor interruptions until most of the local khanates were successively incorporated into the Russian empire in the course of the latter’s southward expansion during the first decades of the 19th century. Other parts of Azerbaidzhan stayed within Iran. There were therefore never any reasonably permanent and independent state-like formations on the territory of present-day Azerbaidzhan, and whatever there was found itself solidly within the world of Islam. Another neighbouring area which remains outside the purview of this chapter is the Caucasus Mountains themselves and the immediately

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adjoining regions to the North. These are home to a bewildering variety of small nations and ethnic groups, many of whom were able to maintain, albeit precariously, a measure of political independence until they were gradually absorbed into the Russian empire in the course of the 19th century, the Chechens and other “mountain peoples” (gortsy) being the best-known example. Their various systems of customary law offer a rich source to the legal anthropologist and a considerable amount of work on this topic has been carried out by indigenous and Russian scholars during the last hundred-and-fifty years.1 However, these studies concern customary law as it has been observed and described in recent times; the aspect of legal history is minimal. Also, a description of the customary law of a small mountain tribe is a far cry from the official legislation of the Armenian and Georgian monarchs.

2. The Literature Among West-European scholars, Joseph Karst has made the most important contribution to the literature on the subject of Transcaucasian legal history. Karst, a professor at the university of Strassburg (as it then was), published several studies (including translations) on some of the major monuments of the medieval law of Armenia and Georgia.2 The main legislative documents of Armenia and Georgia have been translated into English, French or German and have been cited below at the appropriate places. 1

2

A.V. Komarov, “Adaty i sudoproizvodstvo po nim (Materialy dlia statistiki dagestanskoi oblasti)”, Sbornik svedenii o kavkazskikh gortsakh, Vyp.1, II, 1-88, Tiflis, 1868 (repr. Moskva, 1992); Dzh. Shunaev, “Prisiaga po obychnomu pravu osetin”, Sbornik svedenii o kavkazskikh gortsakh, Vyp.7, Tiflis, 1873; F.I. Leontovich, Adaty kavkazskikh gortsev: Materialy po obychnomu pravu Severnogo i Vostochnogo Kavkaza, Odessa, 1882 (Vol.1), 1883, (Vol.2); M.M. Kovalevskii, Sovremennyi obychai i drevnii zakon; obychnoe pravo osetin v istoriko-sravnitel’nom izuchenii, Moskva, 1886; M. Alibekov, Adaty kumykov, Makhachkala, 1927; Kh.M. Khashaev, Kodeks zakonov Ummu-Khana avarskogo, Moskva, 1948; V.K. Gardanov, Materialy po obychnomu pravu kabardintsev pervoi poloviny XIX v., Nal’chik, 1956; Kh.M. Khashaev & M.S. Saidov, Gidatlinskie adaty, Makhachkala, 1959; V.K. Gardanov, “Obychnoe pravo kak istochnik dlia izucheniia sotsial’nykh otnoshenii u narodov Severnogo Kavkaza v XVIII–nachala XIX v.”, Sovetskaia Etnografiia, 1960, No.5; Kh.M. Khashaev, Pamiatniki obychnogo prava Dagestana XVIIXIX vv., Moskva, 1965.

J. Karst, Sempadscher Kodex, 2 vols., Strassburg, 1905, Band 1: Mittelarmenisches Rechtsbuch, Text und Übersetzung, Bd.2, Kommentar, in Verbindung mit dem grossarmenischen Rechtsbuch des Mechitar Gosch; J. Karst, Corpus Iuris Ibero-Caucasici; Première section: Droit national géorgien codifié, Strasbourg: Code du Vakhtang VI, Vol.I-1, 1934; Vol.I-2/1, 1935; Vol.I-2/2, 1937; Code d’Aghbougha, Vol.II-1/1, 1938; Codes médiévaux de la Géorgie, Vol.II-2/1; Code d’Aghbougha, Commentaire, Vol.II-2/2; Code du roi Georges V, 1939.

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The long and comparatively unbroken history of Georgian law is well documented in the eight-volume edition of the sources of Georgian law, published by the Georgian Academy of Sciences.3

3. General Historical Background: Armenia The Armenians, speaking a language which is counted among the IndoEuropean languages (although it contains many non-Indo-European elements in its vocabulary, sounds and grammar), arrived in early historical times (around the 7th century B.C.) in the area which has been considered their homeland ever since. A powerful Armenian kingdom flourished during the first century B.C., until Pompeius forced the Armenian king to recognize the supremacy of Rome. In the following centuries, Armenia was dominated alternately by the Romans and the Parthians. Armenia was the first country to adopt Christianity as the state religion, shortly after the year 300, under its king Tridat (Tiridates) III. Until the present day, the Armenian church has been the most important factor in the survival of the Armenian national identity, much more so than the various political expressions of this identity. Among the Christian churches of the Middle Ages, the Armenian monophysite church occupied a special position an account of its rejection of the council of Chalcedon (451); this has remained a complicating factor in Armenia’s relations with Byzantium and with the West. The lasting dominance of the Armenian church in domestic affairs is very noticeable in the history of Armenian law; a considerable part of the body of secular law is based on decisions of Armenian church councils or finds its origin in ecclesiastical sources. The relative independence of Armenia soon came to an end after the country was broken up in 387 into a western part, dominated and mostly absorbed by Byzantium, and an eastern part dominated by Persia. In 653, Armenia came under Arab overlordship, but retained a considerable amount of autonomy. In 885, the Armenian ruler Ashot I was recognized as king of Armenia by the caliph of Baghdad and the Byzantine 3

I.S. Dolidze (ed.), Kartuli samartlis dzeglebi–Pamiatniki gruzinskogo prava [Monuments of Georgian law, in Georgian], Tbilisi, 1963 (I), 1965 (II), 1970 (III), 1972 (IV), 1974 (V), 1977 (VI), 1981 (VII), 1985 (VIII). The principal medieval sources are all in Vol.I (hereafter: Dolidze I). Vol.II contains secondary secular legislation and Vol.III secondary ecclesiastical legislation. The other five volumes are all devoted to sources from the 16th century and later and contain court judgments, requests, and similar short documents. A convenient summary of Georgian legal history, with special regard to the place of Georgian law in European legal history is offered by B. Soidse [Zoidze] & R. Kandelhard, “Geschichtliche Grundlagen der Zivilrechtsreform in Georgien”, Recht in Ost und West, 1997, No.2, 41-46.

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emperor. Although this kingdom soon fell apart, Armenia continued as a collection of virtually independent principalities for the next hundred years (apart from the northern Bagratuni kingdom founded by Ashot, with Ani as its capital, there was a southern Artsruni kingdom of Vaspurakan and several other smaller principalities). By the middle of the 11th century, invasions by the Turkish Seldjuks put an end to this golden era of Armenian history. The fall of the Armenian capital Ani in 1064 signified the end of Armenian independence in Armenia proper (or Greater Armenia) until its re-emergence in the 20th century. As a result of the ensuing Armenian diaspora, numerous Armenians had settled in the province of Cilicia, hundreds of miles to the south-west of the Armenian heartland. The first Armenian principalities arose already around 1080 in this area, and they gradually coalesced into an Armenian state (also known as Little Armenia) under the Rubenid and Khetumid dynasties. The Khetumid ruler Leo (Levon) II the Great was crowned king of Armenia in 1199 and was recognized by the pope and the Byzantine and Holy Roman emperors. The Cilician Armenian kingdom was closely allied with the Crusader states which had arisen as a result of the First Crusade (in particular the kingdom of Jerusalem and the principality of Antioch). When the Mongol invasions started in the first half of the 13th century, the Cilician kings were more successful that their Russian colleagues in achieving a modus vivendi with the invaders; they allied themselves with the Mongols against their common enemy, the Egyptian Mamelukes. Ultimately, however, with the waning of Mongol power, the Mamelukes were victorious and the fall of the Cilician capital Sis in 1375 marked the end of the Cilician Armenian kingdom. In 1393, the last Armenian king died in exile in Paris. In the following centuries, the lands populated by the Armenians were ruled either by Ottoman Turkey or by Persia, as the balance of power between these kept shifting. Some measure of Armenian independence could occasionally be realized in the remote and mountainous Karabakh area. When the Russian empire began to penetrate southwards into Transcaucasia in the beginning of the 19th century, Persia, which at that time controlled the Armenian heartland, was forced to give up most of its territory; Nakhichevan and the area of Erevan were ceded to Russia in 1828. At the end of the First World War, Armenia, together with Georgia and Azerbaidzhan, achieved a short period of sovereign independence, but it was soon forcibly incorporated into the emerging Soviet Union, regaining genuine independence only after the dissolution of the Soviet Union in December 1991.


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4. General Historical Background: Georgia The general parameters of Georgian history are similar to those of Armenia in that the country’s fate through the ages was determined predominantly by developments in the states of its more powerful neighbours. However, the fact that Georgia was in a somewhat more advantageous geographical position in relation to these neighbours, i.e. further away from them, may explain to a large extent how Georgia was more successful than Armenia in holding on to a measure of independence. At one stage, during the 13th century, until the arrival of the Mongols in 1220, Georgia even emerged as the dominant regional power. Geographical factors divide Georgia into an eastern part (Kartlia and Kakhetia, with the eastward-flowing Araxes as the main river) and a western part (Imeretia, Mingrelia, Abkhazia and Adzharia, with the westward-flowing Rioni as the main river). The high mountain areas, of which Svanetia is the most important, occupy a separate position. Historically, Georgian territory extended much further to the south and the west into present-day Turkey. The western part of Georgia was exposed, although not to such an extent as Armenia, to influences and interference from Rome, Byzantium, and the Ottoman empire. For the eastern part of Georgia, Persia loomed large. Christianity came to Georgia somewhat later than to Armenia, but still in the first half of the 4th century. No permanently unified state arose in the following centuries and various Georgian kings ruled a succession of small states, dominated in turn by Persian and Arab invaders. Members of the Armenian ruling house of the Bagratuni (Bagrationi in Georgian) gradually gained the ascendancy in Georgia and king Bagrat III (975-1014) was the first to be recognized as the king of most of Georgia. Under his descendant, king David Aghmashenebeli (“the Restorer”, 1089-1125), Georgia had expanded considerably, until it reached its apogee under the famous queen Tamara (1184-1207). This Georgian golden age and the political unity of the country were brought to an end by the Mongolian invasions. King Giorgi Brtsqinvali (“the Brilliant”, 1314-1346) restored some of the former glory, but soon the arrival of the armies of Timur signified a new period of downfall. In the 15th century, a new revival was presided over by king Aleksandre the Great (1414-1443), but he was the last king of a unified Georgia. The country was broken up into the Bagrationi kingdoms of Kartlia, Kakhetia and Imeretia, and the principalities of Samtskhe, Guria, Mingrelia and Abkhazia. The western parts were dominated by Turkey, the eastern by Persia. In the 18th century, Kartlia and Kakhetia were re-united, but remained under Persian suzerainty. King Irakli II of Kartlia-Kakhetia, forced to look

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for protection against the threat posed by Persian ambitions, concluded the treaty of Georgievsk with Russia (1783), in which he renounced all links with Persia and recognized the Russian empress as his suzerain and protector.4 Irakli was succeeded by his son Giorgi XII in 1798. Upon the death of the latter two years later, the Russian government did not allow his eldest son David to ascend the throne, but annexed Kartlia-Kakhetia to the Russian empire. The kingdom of Imeretia was annexed in 1810 and other parts of Georgia in the course of the 19th century, the remote mountain region of Svanetia the last, in 1859. At the end of the First World War, Georgia became independent and retained this status precariously for another three years, until the Red Army put an end to it in February 1921. Georgia regained its independence in December 1991 when the USSR was dissolved; it had already de facto withdrawn from the USSR some months earlier.

5. The Law of the Armenian Kingdoms* As indicated above, there were two periods in which the political independence of Armenia was sufficiently consolidated to allow the emergence of a truly domestic legal order: the Bagratuni kingdom and other smaller Armenian principalities during the era of 861-1064, and the Cilician Armenian kingdom (1080-1375). It was especially the latter which has left an impressive legal heritage. The early Christian period and the Bagratuni period produced mainly a body of ecclesiastical prescriptions which constituted an important source of later secular legislation. Worthy of mention are the canons of Saak Partev, all-Armenian catholicos (the supreme head of the Armenian church) from 387-439, and the resolutions of various Armenian church synods, such as those of Dvin (551, 607, 719), Manzakert (726), Širakawan (862), and Hromkla (1179). Ecclesiastical rules were collected in books of canons (Arm. kanonagirk’), of which several versions are known.5 An Armenian translation of 4

G.G. Paichadze, Georgievskii traktat [commentary], Tbilisi, 1983; G.G. Paichadze (ed.), Georgievskii Traktat [text], Tbilisi, 1983.

*

5

With grateful acknowledgment of Professor J.J.S. Weitenberg’s (Leiden University) bibliographical help for this section.

The first formal collection appeared under catholicos Yovhannes III (between 717 and 728); the most important collections were published by V. Hakobian, Kanonagirk’ Hayots, Erevan, 1971 (quoted from A. Bozoyan, “Le droit médiéval arménien, entre droit canon et droit coutumier”, in R. Kevorkian (ed.), Ani capitale de l’Arménie en l’an mil, Paris, 2001, 145-149).


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the Byzantine collection of canon law, the Nomocanon (also existing in numerous versions), was probably already available in the 9th century.6 A significant and interesting document from a later period is the Penitential of David of Sanjak (12th century).7 This work was, strictly speaking a mere guidebook to priests, to be used in hearing confessions, discussing all kinds of sins (which often also constituted violations of the law), and the suitable penances to be imposed on penitents. This Penitential was one of the sources for the Code of Mkhitar Gosh, which again was the main source for the Law Code of Smbat Sparapet and, in this way, a connection can be made between a purely pastoral document and an explicitly legal enactment. The Code of Mkhitar Gosh and the Law Code of Smbat Sparapet can be regarded as the principal monuments of the Cilician Armenian kingdom. There has been some debate whether major secular legislation from the Bagratuni era did exist but was lost, or whether legal relationships in secular society were largely regulated by customary (unwritten) law during this period.8 According to Karst, a law code from the Bagratuni era served as one of the sources for the Code of Mkhitar Gosh. Moreover, he contended that already during the Bagratuni era significant parts of major legislation from surrounding countries were available in Armenian translation, in particular parts from the Byzantine Ecloga (726) and the Syro-Roman Law Code (see below).9

6. The Code of Mkhitar Gosh The learned priest (vardapet) Mkhitar Gosh (d. 1213) was active in Greater Armenia during the second half of the 12th century. This area, Armenia proper, was under Turkish rule at the time, so the Code of Gosh was contemporary with the Cilician kingdom, although not, strictly speaking, a law of that kingdom. Nevertheless, its very close connection with the Code of Smbat Sparapet justifies it being treated as such. As observed before, the Armenian church continued to function as the political organization of the Armenian population under foreign 6

7

Bozoyan, 147. On the Nomocanon generally, see the section on Byzantine canon law in the chapter on “Roman Law in Medieval Russia”.

8

C.J.F. Dowsett, The Penitential of David of Sanjak. Corpus scriptorum christianorum orientalium, Vol.216-217. Scriptores armeniaci, II, 3-4, Louvain, 1961.

Cf. Bozoyan, 147-148.

J. Karst, “Grundriss der Geschichte des Armenischen Rechts”, Zeitschrift f. vergl. Rechtswissensschaft, Vol.XIX (1906), 1. Sonderabdruck, 17-18. I have not been able to consult H. Kaufhold, Die armenischen Übersetzungen byzantinischer Rechtsbücher, Franfurt a.M., 1997.

9

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domination. This resulted in the concurrent jurisdiction of the Muslim courts of the rulers and the jurisdiction of the Armenian bishops. The latter enjoyed considerable popularity with the Armenian population,10 and the Code of Gosh was written with the strengthening of the Armenian courts as one of the avowed purposes.11 Mkhitar Gosh began his work on the Code in 1184.12 The oldest copy extant dates from 1237.13 The principal sources of the Code of Gosh are the Pentateuch, also known as the Mosaic laws in the terminology of the period (the Old Testament books of Genesis, Exodus, Leviticus, Numeri and Deuteronomium), the Armenian collection of church canons (the Kanonagirk’), and the Penitential of David of Sanjak.14 The system of the Code (the sequence of the sections) is based on the various sources used.15 As a result, the organization of the Code appears chaotic to a modern reader. The Code of Mkhitar Gosh was used for centuries by the Armenian diaspora. In Georgia, a Georgian translation was used, and a Latin version was in use among the Armenian diaspora in Poland.

7. The Code of Smbat Sparapet The author of this Code, according to its preamble, was Smbat, elder brother of the Cilician king Khetum I (1226-1269).16 He served as commander-in-chief of the Armenian army for fifty years and died in battle in 1276. He spent three years heading an Armenian delegation to the Mongolian great khan in Karakorum (1248-1250), resulting in a Mongolian-Armenian 10 11

12 13 14 15 16

J. Karst, Sempadscher Kodex, Band 2, 350.

Cf. R.W. Thomson, The Lawcode [Dastanagirk’] of Mxit’ar Goš, Amsterdam/Atlanta, GA, 2000, 14. The reasons given by Gosh for drafting his Code are discussed by Thomson, 21-22.

Thomson, 20.

Thomson, 36.

Thomson, 23ff.

Thomson, 27-29.

The Rubenid dynasty which had ruled the Cilician kingdom since Ruben I (10801095), died out in the male line with Leo II (1187-1219). Leo’s daughter Isabella was only 4 years old and the kingdom was ruled by a regent, Konstantin Pail, the most powerful nobleman in the country. Isabella was first married off in 1221 to Philip, a son of Bohemond, prince of Antioch. Philip fell out with the Armenian nobles and was killed in 1225. A younger son of Konstantin Pail, Khetum (b.1213), was then married to Isabella and accepted as king in 1226. Konstantin appointed his elder son Smbat (b.1208) commander-in-chief of the army (sparapet, also known as gundstabl’, a corrupted form of the French connétable or ‘constable’). See, generally, A.G. Sukasian, Istoriia Kilikiiskogo armianskogo gosudarstva i prava (XI-XIV vv.), Erevan, 1969.


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treaty of friendship. He also translated the law code of the neighbouring Crusader principality of Antioch into Armenian,17 and is known as the author of a short memoir Išatarakan, written in 1269. The Law Code should be considered as his principal work. The Law Code, according to its preamble, was written in 1265.18 The Code consists of the following parts (according to the numeration of articles as proposed by Karst): (1)

A very long provision (a chapter rather) concerning the king, the order of succession, royal privileges, the royal court, etc. (2) High treason and other felonies committed by princes and other vassals. (3-4) Rights concerning gold and silver mining. (5-7) Various offences against persons. (8-69) All sorts of provisions concerning the church, church dignitaries, church property, religious duties, offences affecting such duties, etc. (40: dissolution of marriage if one spouse has been carried off into slavery. 60: listing of ecclesiastical ranks, as well as ranks at the royal court.) (70) Jurisdiction over kings, princes and nobles. (71) Jurisdiction over ecclesiastical personnel. (72-93) Matrimonial law and sexual offences. (94-96) Intestate succession. (97-98/105) Family law. (99-104) Pledge and security. (106-112) Commercial law. (113-118) Testaments. (119-171) Damages, delicts and various offences; criminal law. (172-175) Boundaries, mills, vineyards, shepherds. 17

18

Similar codes existed in the Crusader kingdoms of Jerusalem and Cyprus: Assises de Jérusalem ou receuil des ouvrages de jurisprudence composés pendant le XIII-ème siècle dans les royaumes de Jérusalem et de Chypre, I-II, Paris, 1841. The Assises d’Antiochie, however, were lost until the Armenian translation of (or ascribed to) Smbat were found. They were translated back into French and published by G. Alishan in 1876. A Russian translation by A.A. Papovian appeared in Vestnik Matenadarana, 1958, No.4.

The most complete edition is the two-volume work by J. Karst, mentioned above. This work gives the Armenian text, with different variants, and a German translation. There are several other Armenian editions and two Russian editions, by A.A. Galstian and A.G. Sukasian. I have used the latter: A.G. Sukasian (transl, foreword and comments), Sudebnik Smbata Sparapeta (Gundstablia) 1265 g., Erevan, 1971 (hereafter: Sukasian, Sudebnik).

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By far the most important source of the Code of Smbat was the Code of Mkhitar Gosh. Other sources are of purely ecclesiastical origin (such as the canons of Gregory the Illuminator and of Saak Partev or decisions of church synods) and a number of provisions has also been taken over directly from Mosaic law, especially from Deuteronomium. (Of course, the Code of Mkhitar Gosh, as mentioned before, is itself based in large part on ecclesiastical prescriptions.) Some direct influence of Byzantine law and the law of the Crusader states (esp. the law of Antioch, which Smbat himself had translated) is noticeable.19 Certain rules of a secular nature are probably derived from customary law. In his preamble, Smbat does not mention Mkhitar Gosh by name and merely states that he intends to translate the “Code of Law” from the unintelligible Old-Armenian language into the vernacular of his age. He adds that he has tried to catch the essence of the text and to summarize this, indicating thereby that he was in fact doing more than just translating. Karst has argued that the reason for Smbat’s reworking of the Code of Mkhitar Gosh was not only linguistic, but also of a practical legal nature; the Code of Mkhitar Gosh, according to Karst, was too much based on imported and theoretical concepts, while Smbat attempted to offer a law which was closer to the every-day reality of the Cilician kingdom.20 Sukasian elaborates this observation by pointing out that Smbat’s Code takes the feudal character of the Armenian Cilician society into account, an aspect which was largely absent in the Code of Mkhitar Gosh.21 There can be no doubt in any case that the great merit of Smbat’s Code was in the energetic editing and systematizing of the material. The brief survey of the contents, given above, already indicates that a serious effort had been made to organize the raw legislative material into a structured whole. Additionally, the author of the Code frequently explains what he has done, how he has changed old rules and for what reasons, how he has shortened provisions taken over from other sources, how he has combined rules derived from different sources, etc. As is often observed in medieval legislation, the approach to systematization is usually associative: the rule written down appears to remind the legislator of a related but different situation, and he proceeds to enunciate how this second case should be dealt with. It is, of course, easy to become lost in casuistry, by moving from one case to another related one. This is quite obvious in the lengthy first provision, dealing with the king. In outlining the king’s duties as supreme judge, the Code goes into considerable detail about the law of homicide, a matter which is also regulated elsewhere in the Code. 19 20 21

Cf. J. Karst, Vol.1, p.XXXII of the “Einleitung”.

J. Karst, Vol.1, p.1 of the “Vorwort” and pp.XXI-XXIV of the “Einleitung”.

Sukasian, Sudebnik, 12-22.


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The large number of provisions devoted to ecclesiastical matters (over one-third of the text of the Code) illustrates the well-known importance of the Armenian church in public life. A closer look at some of the provisions indicates that the rulers of the Cilician kingdom were also keen to exercise control over the secular activities of the church. A certain hybrid character of the Code becomes apparent in its system of sanctions. Its shares with Byzantine law the frequency of maiming penalties (blinding, cutting off hands, feet, noses, genitals), while the persistence of monetary compensation, even in case of homicide, is reminiscent of older layers of customary law. Even the ancient institution of collective responsibility of a village for murder committed on its territory is preserved.22 The Code of Smbat Sparapet was the law of the Armenian kingdom of Cilicia; after the fall of this kingdom, the Code was soon forgotten and was rediscovered only in 1869.

8. The Legal History of Georgia23 From 1703-1714, the kingdom of Kartlia was ruled by the viceroy (or regent) Vakhtang, nephew of king Giorgi XI, who was serving as Persian commander-in-chief in Afghanistan as a virtual hostage of the Persian shah. During his regency, Vakhtang collected all laws which were applied in Georgia at that time. He also had a new code of law drafted, based on a revision of the old laws. The new code, together with the old laws, was published in the period 1703-1709. As Vakhtang succeeded his uncle as king in 1716 and ruled until 1724 (when political conditions forced him to emigrate to Russia, where he died in Astrakhan in 1737), the entire collection is known as the Laws of Vakhtang VI. By their inclusion in the Laws of Vakhtang, the validity of the older laws was recognized. They were used as subsidiary sources of law when the Code of Vakhtang was silent on a particular point.24 The Laws of Vakhtang consist of four main parts: —

the Mosaic laws, mostly excerpts from Deuteronomium;

22

23

Cf. the section on “collective liability” in the chapter on “Law’s Beginnings and Early Law”.

24

Generally on Georgian legal history: I.I. Surguladze, Istoriia gosudarstva i prava Gruzii, Tbilisi, 1968 (in Russian); I.A. Javaxišvili, Kartuli samartlis isţoria, Tbilisi, 1928 (I), 1928-1929 (II, 1-2) (in Georgian).

Cf. D.L. Purtseladze, Zakony Vakhtanga VI, Tbilisi, 1980 (Russian translation and comments), 24; B. Soidse [Zoidze] & R. Kandelhard, “Geschichtliche Grundlagen der Zivilrechtsreform in Georgien”, Recht in Ost und West, 1997, No.2, 43.

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—

the Greek, i.e. Byzantine laws: the Syntagma of Matthaeus Blastaris (14th century) and the Hexabiblos of Harmenopoulos (1345); the Armenian laws: the Syro-Roman Code (475/476); the Code of Mkhitar Gosh; the Georgian laws: the Law of Bagrat Kuropalates; the Canonical Laws (11th century); the Laws of Beka and Aghbuga with additional provisions; the Law Code of king Giorgi V the Brilliant; the Law of the Catholicos; the Law Code of prince Vakhtang.

— —

The Georgian laws included among the Laws of Vakhtang VI cover a more or less continuous period of many centuries of Georgian legal development and may themselves be considered as the most important monuments of this development. It is, therefore, convenient to take the collection of Vakhtang VI as the starting-point for a brief survey of Georgian legal history. Along with the Georgian laws included among the Laws of Vakhtang VI, many smaller pieces of secular and ecclesiastical legislation have survived. For reasons of space they will not be discussed here.

9. The Non-Georgian Oarts of the Collection In the preamble to his own Law Code, Vakhtang explains how he collected “all law books which in the course of time were disseminated separately in other kingdoms, as well as in Georgia”.25 In the first place, the laws derived from the Old Testament are mentioned, from the books Genesis and Exodus, and the “Mosaic laws”, the detailed provisions mostly from Deuteronomium.26 Then, Vakhtang continues: “I searched in Greece, through requests to the four patriarchs, for the judicial books according to which they decided cases in the times of the caesars; they were translated with great trouble by wise men, whom I myself helped very much in the translation.” The book in question was the Syntagma of the Byzantine priest Matthaeus Blastaris, corrected and amended according to the Hexabiblos

25

26

Along with the Russian translation of the Law Code of Vakhtang by Purtseladze (mentioned in the previous footnote), there are also older Russian translations. The French translation by Karst is mentioned in the beginning of this chapter.

Georgian text in Dolidze I, 103-125.


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of Harmenopoulos.27 The Hexabiblos (of 1345) was the last major work of Byzantine law and it continued to be in use during Ottoman times.28 The Armenian laws used by Vakhtang included the Code of Mkhitar Gosh, discussed above, and the Syro-Roman code which existed in an Armenian version.29 This code, containing elements of Roman law and of native law of the area, was first drafted around 370-380, but much amended afterwards, until a more or less definitive version emerged in 468.30 It survived for a long time in the Near East, as a competitor to the legislation of Justinian, in areas which at one time had been part of the Byzantine empire.31 These “Armenian” laws applied to the numerous Armenians living in the Georgian kingdoms.32

10. The Law of Bagrat Kuropalates The oldest part of the Georgian laws included in the collection of king Vakhtang VI is the so-called Law of Bagrat Kuropalates. This law is preserved as a sequel to the Laws of Beka and Aghbuga (to be discussed below), but is in fact of a much older date.33 There were four early Georgian rulers by the name of Bagrat, who sported the title of kuropalates,34 and 27

28

Epitome Syntagmatis Matthaei Blastaris ad Hexabiblum Harmenopouli mutati. The actual copy of the Syntagma used for the translations is still extant; cf. Purtseladze, Zakony Vakhtanga VI, 16. Georgian text in Dolidze I, 127-221. On the Syntagma of Blastaris and the Hexabiblos of Harmenopoulos, see N. van der Wall & J. Lokin, Historiae iuris graeco-romani delineatio. Les sources du droit byzantin de 300 à 1453, Groningen, 1985, 116-118.

29

It was initially adopted as a civil code when Greece became an independent kingdom in 1853. Cf. Sohm-Mitteis-Wenger, Institutionen. Geschichte und System des Römischen Privatrechts, München/Leipzig, 1931, 136-137. See, also, van der Wall & Lokin, 118.

30

Along with a Syrian (Aramaic) and Arabic version. The Armenian version was the basis of the Georgian translation used in Vakhtang’s collection. Georgian text of the Code of Mkhitar Gosh and of the Syro-Roman code in Dolidze I, 223-389.

31

Others defend a date around 476-477; cf. W.Selb, Zur Bedeutung des syrisch-römischen Rechtsbuches, München, 1964, for further references.

Cf. Sohm-Mitteis-Wenger, 120.

33

Purtseladze, Zakony Vakhtanga VI, 16.

34

Russian translation and a short commentary in: D. Purtseladze, “Iz natsional’nogo zakonodatel’stva korpusa Vakhtanga VI”, Macne–Ekonomikisa da samartlis seria/ Izvestiia–Seriia ekonomika i pravo, 1985, No.4, 84-98. On p.85, Purtseladze indicates the major text editions and studies in Georgian. Georgian text of the Law of Bagrat also in Dolidze I, 464-470. The place of Bagrat’s Law in comparative legal history is briefly discussed in the chapter on “Law’s Beginnings”.

Kuropalates was the fourth highest rank in the official Byzantine hierarchy of the era. It was usually reserved for members of the imperial family. It had first been given to the founder of the Georgian dynasty, Ashot Bagrationi (786-826), and once the

32

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this puts the date of the origin of this law in the period between 826 and 1072 (Bagrat I ruled from 826-876 and Bagrat IV from 1027-1072). The majority of scholarly opinion attributes the law to Bagrat I. The law consists of 62 provisions (according to the accepted numeration), of which the overwhelming majority is devoted to the various payments due for all kinds of transgressions ranging from simple threats to homicide. The term used for such payments (sisxli, blood) was still in use 900 years later, in the Law Code of king Vakhtang. There are also a few provisions concerning inheritance law. About the first third part of the law contains special rules for the protection of bishops, priests and church property. The reason presumably is that lay people could fall back on their family or clan for protection. Social stratification is already quite outspoken; the amount of sisxli depended on the victim’s social status: the king and the bishops at the top, then the magnates (didebuli), the ordinary nobles (aznauri), with the peasants (glexi) at the base of the pyramid. The general character of the law is reminiscent of the more or less contemporary Germanic laws (the leges barbarorum), or of the earliest layers of the Russkaia Pravda (see, also, the chapter on “Law’s Beginnings”). Although the Law of Bagrat may have been preceded by legislation of earlier Georgian rulers which has been lost, the ultimate source of the Law of Bagrat is undoubtedly Georgian customary law. The first part of the law (the provisions protecting the church, its personnel and property) attempts to integrate the church into the traditional system of monetary compensation. This is in stark contrast with the situation in Armenia where, following the example of Byzantium, the church is protected through a system of draconic punishments, imposed by the state.

11. The Canonical Laws35 A short law, of uncertain date, but probably from before the year 1100.36 It is obviously a church law and provides additional ecclesiastical punishment (usually excommunication) for a few serious felonies. It also prescribes ordinary sanctions (the payment of sisxli or other indemnification and, in one case, blinding or amputation of hand or foot). rulers had assumed the title of king (mepe) of Kartlia, it was used as a secondary title. Cf. M.D. Lordkipanidze & D.L. Mushkelishvili (eds.), Ocherki istorii Gruzii. Tom II: Gruziia v IV-X vekakh, Tbilisi, 1988, 314-315.

35

36

Russian translation in D.L. Purtseladze, “Iz natsional’nogo zakonodatel’stva korpusa VakhtangaVI”, Macne–Ekonomikisa de samartlis seria/Izvestiia–Seriia ekonomika i pravo, 1986, No.1, 59-72, at 64-66. Georgian text in Dolidze I, 471-473.

Purtseladze, Zakony Vakhtanga VI, 87.


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12. The Laws of Beka and Aghbuga37 Beka and Aghbuga, grandfather and grandson, were rulers (atabagi) of the principality of Samtskhe (roughly present-day Meskhetia, the southwestern part of Georgia), the former from 1285-1306, the latter from 1381-1386.38 Although outwardly high officials of the Georgian (Kartlian) kingdom,39 they ruled as virtually independent princes, as indicated by their legislative activities. The laws of these rulers have survived in a single document in which Aghbuga recounts that he has copied the laws of his grandfather, to which he has added his own legislation. In the available text, the transition is clearly marked by a new preamble. The law of Beka—the larger part of the entire document—is still quite close in general character to the law of Bagrat, concerned mainly with the payments for various personal injuries. Other matters are mentioned, such as the ownership of land, inheritance law, theft, sales, and the status of unfree peasants. In the smaller second part, the law of Aghbuga, there is more attention to commercial matters and transactions. Among the sources of the laws of Beka and Aghbuga, the law of Bagrat should be included, as well as customary law. The influence of ecclesiastical law is also noticeable.40

13. The Law of Giorgi V the Brilliant41 After the chaos resulting from the devastations of the Mongol invasions, Giorgi V succeeded in re-uniting Georgia for a number of years (he ruled from 1314-1346).42 The law which bears his name is not a general law for 37

38

Russian translation by V.D. Dondua & I.S. Dolidze, in N.A. Berdzenishvili (ed.), Sudebnik Beka i Agbuga, Tbilisi, 1960, introduction by I.S. Dolidze (hereafter: Dolidze/ Dondua). French translation by J. Karst in his Corpus Iuris Ibero-Caucasici, see note 2 . Georgian text in Dolidze I, 423-463.

39

Aghbuga was alive in 1380; cf. Dolidze/Dondua, 28. The dates of 1381-1386 are given by Purtseladze, Zakony Vakhtanga VI, 332.

40

Beka possessed the title of mandaturtuxucesi or minister of internal affairs, and Aghbuga was amirspasalari or commander-in-chief. The atabagi title itself was equivalent to the Byzantine title of basileopater, or father of the king (emperor).

Dolidze/Dondua, 15-16.

41

42

D.L. Purtseladze (ed.), Ulozhenie Georgiia V-go Blistatel’nogo, Tbilisi, 1998, offers a bilingual Georgian-Russian text, an earlier English translation, the French translation by Karst (see note 2), another English translation (from O. Wardrop, “Laws of King George V of Georgia, surnamed «The Brilliant»”, Journal of the Royal Asiatic Society, July 1914, 607-626) and an extensive commentary. Basic edition of the Georgian text in Dolidze I, 399-421.

His mother was the daughter of Beka I, the ruler of Samtskhe, and one of the achievements of Giorgi V was to re-establish control over the Georgian provinces (like Samtskhe) which had broken free in the aftermath of the Mongol invasions.

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the whole kingdom, but was meant specifically, according to its lengthy preamble, for the mountainous regions (Mtiuleti) in the Central Caucasus, the upper reaches of the Ksani and Aragvi rivers.43 Its general character is close to the Laws of Beka and Aghbuga, although it is considerably shorter and limits itself mostly to the regulation of all kinds of personal offences and injuries and the amounts of sisxli to be paid for them. This may be explained by the cultural and socio-economic differences between the more developed and prosperous area of Samtskhe and the more primitive conditions prevailing in Mtiuleti. The limited geographical applicability of the Law of Giorgi, combined with its closeness to the somewhat earlier Law of Beka, raises the intriguing question whether a now lost general code of law existed at the time. The Law of Giorgi refers occasionally to what “has been ordained of old” (dzvelitgan gačenili). There are reasons to believe that at least Giorgi himself did not promulgate such a code, but otherwise the question remains open.44 The extensive data provided by the preamble allow the precise dating of the Law of Giorgi in the year 1335. The preamble also indicates explicitly that the Law is only concerned with secular matters and that it does not affect the ecclesiastical jurisdiction of the catholicos and the bishops appointed by him.

14. The Order of the King’s Court45 The Order of the King’s Court (xelmc’ipis k’aris garigeba) is a curious document which was not included in the corpus of Vakhtang’s Laws; it was found by accident in 1908, but as it is roughly contemporary with the Law of Giorgi V, it is best discussed at this point. As it name indicates, the Order of the King’s Court is a kind of handbook, written by somebody close to the king, for the organization and 43

44

The exact extent of the territory to which Giorgi’s law applied is much disputed; cf. Purtseladze, Ulozhenie, 11-15. There is no doubt, however, about the strategic importance of the area surrounding the only major road through the Main Range of the Caucasus, from the Daryal Gorge (the present border with Russia), along the foothills of Mount Kazbek, across the Krestovy Pass, into the Kartlian heartland.

45

Cf. Purtseladze, Ulozhenie, 10-11, who follows earlier Georgian historians, such as Javaxišvili and Dolidze in this respect. If an important general enactment had existed at the time of Giorgi the Brilliant, or at some earlier moment, one would expect that the memory of it would not have been completely lost at the time Vakhtang VI compiled his collection, in which legislation from the same period, such as the Laws of Beka and Aghbuga or the Law of Giorgi V, and earlier laws, such as those of Bagrat the Kuropalates, were included.

Russian translation by V.D. Dondua in D.L. Purtseladze (ed.), Rasporiadok tsarskogo dvora, Tbilisi, 1991. Bilingual (Georgian and Russian) edition in the series “Monuments of Georgian Law”, I.I. Surguladze (ed.), Kartuli samartlis dzeglebi, Tbilisi, 1970.


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etiquette of the court of the king of Georgia. Although it is not a law, it provides detailed information on the organization of the Georgian state, its chief officials and their different responsibilities. Such questions are rarely discussed in medieval legal sources and this makes the Order of the King’s Court a particularly valuable document. The division of responsibilities between the chief functionaries of the king’s government may have been inspired by Byzantine and Persian models; neither was it very different from what was current in Western Europe during the Middle Ages.46

15. The Law of the Catholicos The golden age under queen Tamara was followed by centuries of disorder and foreign domination, with only a short revival under Giorgi the Brilliant. The country fell apart into a number of kingdoms and principalities and no important legislation survived until the Law Code of Vakhtang VI in the beginning of the 18th century. The Georgian church, however, like its sister church in Armenia, remained united and to some extent the catholicos stepped into the void created by the disappearance of the central state. The body of laws collected by Vakhtang VI also contained a general law, enacted by the All-Georgian catholicos, together with the catholicos of Abkhazia, somewhere around the middle of the 16th century.47 The law purports to be an excerpt of the Byzantine Nomocanon, the collection of Greek ecclesiastical law. According to the preamble, nothing that was not in the Nomocanon had been added. The impact of Georgian law is therefore minimal; sisxli is mentioned only once in passing. It is replaced by the severe penalties, common to Byzantine law.

46

47

The king’s council consisted of three major officials, the “chief secretary” (mc’ignobartuxucesi) or prime-minister, a position reserved for the archbishop of Chkondidi (therefore also called the Čqondideli), the commander-in-chief (amirspasalari), and the “father-of-the-king” (atabagi), who competed in status with the prime-minister, and three lesser ones: the chief constable (mandaturtuxucesi) or minister of internal affairs, the chief treasurer (mečurčletuxucesi) or minister of finance, and the chief marshal (msaxurtuxucesi) or minister of the royal household.

Comments and Russian translation by D.L. Purtseladze in Macne–Ekonomikisa da samartlis seria/Izvestiia–Seriia ekonomika i pravo, 1985, No.4, 84-98, at 85, and 1986, No.1, 59-72, at 59-63. Georgian text in Dolidze I, 391-397. The law resulted from a synod of West-Georgian bishops and presumably applied only to that part of the country. The presence and blessing of the All-Georgian catholicos lent it extra authority.

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16. The Law Code of Vakhtang VI48 The reason for the collection of old Georgian laws, as effected by Vakhtang VI, was the elaboration of a new and comprehensive legislation for the kingdom of Kartlia-Kakhetia (i.e. the eastern part of Georgia) in the beginning of the 18th century. The general character of the Code was conservative; its innovations reflected primarily the further development of traditional institutions. The tone of the preamble, in accordance with tradition, is didactic and moralising. It is addressed to the judges who have to use the Code. The last sentences are worth quoting: “Whoever thinks of something [new] and remembers it, let him include it and write it down, he will do a good and fitting deed.” The first five provisions of the Code are then devoted to various admonitions to judges. Articles 6-14 deal with various kinds of evidence which may be employed to substantiate a claim: ordeals, oaths, duels, testimony of witnesses, admission of guilt. Articles 15-16 explain the complicated monetary system and then the first main part of the Code identifies a great variety of acts which lead to the payment of sisxli (arts.17-97). The next main part (arts.98-115) regulates partition. In the older codes of Beka and Aghbuga and of Giorgi V, partition was a much less prominent topic. By the time Vakhtang wrote his Code, the old system of family or clan ownership had lost its vitality and a system of individual ownership or ownership by smaller family units had replaced it. This explains the importance of the rules on partition. A chapter on debts constitutes the third main part (arts.116-149). As debts may be based on a great variety of factors, this chapter, to a modern lawyer, presents an amalgam of quite diverse topics. The chapter on theft (arts.150-159) still used the payment of sisxli as the standard sanction. To the sisxli (which, as before, depended on the social status of the victim), seven times the value of the stolen property is added, and this is paid to the victim, not to the state. Only in case of theft from the treasury or from the church, the king or the catholicos will determine what the thief will have to pay. Artsicles 160-168 regulate sales and the remainder of the first half of the Code (arts.189-204) is taken up by sundry provisions. Then a solemn conclusion follows, which recounts how the Code has been written with great care and which again admonishes judges and everybody else involved in its application. A longish second half follows (arts.205-270), without any clear attempt at systematization. It probably restates separate laws which were for some 48

Georgian text in Dolidze I, 475-532. Russian translation by D.L. Purtseladze, Zakony Vakhtanga VI, Tbilisi, 1980. French translation by Karst (see note 2).


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reason omitted in the first draft, or new legislation. It would seem that by the time the first draft of the Code had been completed, a number of new questions had arisen and appropriate solutions were formulated as new rules, appended to the first half of the Code. Notwithstanding the time of its enactment, the Code still portrays a thoroughly feudal society, based on a complicated social stratification (various ranks of princes, nobles, merchants, peasants and bondsmen). As in most traditional legislation, the casuistic approach is prominent. The drafters recall certain outstanding cases from the past and include the most desirable solutions in their new law. After Vakhtang, the kingship of Kartlia eventually came into the hands of another branch of the Bagrationi family, the kings of Kakhetia, of whom Irakli II was the most important (king of Kakhetia 1744-1762, king of Kartlia-Kakhetia 1762-1798).49 His sons were active as provincial legislators, and his grandsons Davit and Ivane (the sons of the last king of Kartlia-Kakhetia, Giorgi XII) continued the family tradition, each drafting a law code.50 However, the annexation of Kartlia-Kakhetia by Russia in 1800 deprived these projects of any practical significance. The Code of Vakhtang VI continued to be applied in Georgia for some time and was translated into Russian.

17. Dasturlamali The Law Code of Vakhtang hardly dealt with matters concerning the organization of the state. This defect was to some extent corrected by the promulgation, at about the same time, of a new handbook of court regulations, more or less along the lines of the 14th century Order of the King’s Court. Unlike the latter, the new handbook, bearing the title of Dasturlamali, was an official document.51 It is of special importance on account of the information it offers on the organization of the courts; not only the king himself, but also the queen and the royal princes took an active part in the administration of justice.52

49

50

Cf. M. Surguladze, Bagrationta samepo saxli [The Royal House of Bagration], Tbilisi, 1995.

51

Cf. M. Kekelia, Drevnegruzinskie zakonodatel’stva, sud i sudebnyi protsess (Vtoraia polovina XVIII–pervaia polovina XIX v.), Tbilisi, 1986, 8.

52

Only a Georgian text is available in the series of “Monuments of Georgian Law”, I.I. Surguladze (ed.), Kartuli samartlis dzeglebi, Tbilisi, 1970.

The provisions of the Dasturlamali are discussed extensively by Kekelia, Drevnegruzinskie zakonodatel’stva.

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18. Conclusions As the approach in this chapter has been largely descriptive, it will be sufficient to highlight a few points which emerge when the medieval legal systems of Georgia and Armenia are compared. It is, of course, a perfectly legitimate exercise in comparative legal history to look at a specific rule or a specific legal institution, in order to establish how it came into being, whether it was invented of borrowed from elsewhere, and how it developed over time. When complexes of rules, such as individual laws or entire legal systems, are compared, a more comprehensive or holistic approach is indicated, i.e. the complex should preferably be viewed as a whole, as a system of interrelated elements, rather than as the sum of its components. The legal system of the former Soviet Union, or some of its major “branches” (e.g. civil law, criminal law) would be a good case in point. The majority of the constituent elements, for instance the individual provisions of the civil or criminal code, would often appear to be very similar to counterparts in various continental European systems. One might then conclude that Soviet civil or criminal law could be placed in a single category together with French, German, Italian, etc. law, all being genetically connected and sharing a common origin. This is indeed true, but a very important point would be missed in this way. The Soviet legal system, and its major sub-divisions, taken as a whole, reflected a social, political and economic reality which was fundamentally different from its European counterparts. The toolboxes of civil or criminal law were largely identical, but they were used for entirely different jobs. Applying this approach to the medieval legal systems of Armenia and Georgia, we intend to look first and foremost at the kind of social and political system reflected. With regard to Armenia, the timeframe is more modest; our sources consist mainly of the law codes of the Cilician kingdom, embracing a period of three centuries. For Georgia, the period concerned is much longer (some 800-1000 years, depending on the exact dating of the Law of Bagrat Kuropalates). In view of the length of the period, the conservatism of Georgian law is striking. The payment of sisxli, blood-money, survived into the 18th century in Georgia, not as an obscure relic, but as the most central sanction applicable in law, civil damages or criminal punishment being of secondary importance in most instances. Notwithstanding its long history, Georgian law may therefore still be regarded as a diachronic entity, maintaining considerable continuity through the ages. The Armenian and Georgian legal systems examined in this chapter operated both in a setting which could loosely be identified as “feudal”,


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i.e. not in the precise sense of European history, but rather in a somewhat Marxist sense. By this, we mean a society where the majority of the population is employed in agriculture, social stratification is based primarily on the personal and property relationships concerning the use of land, and the higher strata of society (kings, magnates, higher and lower nobility) are bound together by a network of mutual obligations. The fact that this type of feudalism (like West European feudalism) functioned within a Christian civilization meant that the church in its various emanations (bishops, monasteries, clerical personnel) was fully integrated into the social and legal system. In this sense, the Armenian and Georgian states did not differ essentially from the contemporary states of the Crusaders. A more detailed examination brings out significant differences between Armenia and Georgia. Cilician Armenia was much more open to external influences, which is not surprising in view of its geopolitical location. The Cilician Armenian codes borrowed extensively from Byzantine law, from the older Syro-Roman law, and from the (medieval French) law of the Crusader states. In this way, medieval Armenian law was indirectly connected to Roman law. How, and to what extent, Georgian law has borrowed from abroad is difficult to establish. Older Georgian authors generally insist on the predominantly autochtonous character of Georgian law.53 Foreign authors, such as Karst or Kovalevskii, posit a strong influence of Graeco-Roman law. They have recently been joined by the prominent Georgian legal historian, B. Zoidze.54 It would, indeed, be astonishing if Byzantine law had left no traces in medieval Georgian law. Evidence for strong influence, however, is hard to find. The provisional conclusion will have to be that Georgian law, especially when compared with Armenian law, has preserved its original character quite well over a long period. One of the most significant differences between Armenian and Georgian medieval law is in the system of penalties; Armenia took over many of the severe maiming penalties of Byzantine law, while Georgia by and large retained the older system of composition between offender and victim; in 53

54

E.g. Dolidze, in his edition of the Code of Beka and Aghbuga, 15-16, or Purtseladze, in his edition of the Code of Giorgi the Brilliant, 19.

The main thrust of Zoidze’s article (quoted in note 2) is to demonstrate that the enactment of the modern Georgian Civil Code, which occupies a unique place among the civil codes of the successor states of the Soviet Union and has clear connections with German civil law conceptualization, merely reactivates Georgia’s traditional links with European legal institutions. The few examples of Western influence on the Code of Vakhtang VI, mentioned by Zoidze, are not particularly convincing.

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very serious cases exile could be imposed (itself often an ancient penalty) and in later times capital punishment was available in rare cases. Another significant difference between Armenian and Georgian law was in their treatment of church functionaries and church property. Not only did the church figure much more prominently in Armenian law, it also generally enjoyed a higher degree of legal protection by the state than in Georgia.

Index of Personal Names A Abel...........................................................28 Agamemnon......................................... 240n Aghbuga................................... 304ff., 307ff. Akun (Haakon, nephew of Igor of Kiev)........ 143 Albrecht (Adalbert, Albert).....................41 Aleksandr Aleksandrovich (of Vladimir)...........................................202 Aleksandr Iaroslavich Nevskii (of Vladimir and Moscow)......193, 202, 219 Aleksandr Kazimirovich (of Lithuania)...................................197, 229 Aleksandr Mikhailovich (of Tver’)....... 221 Aleksandre the Great (of Georgia).......297 Alekseev, Iu.G...................123n, 136n, 160n, ..................................................... 255n, 287n Alekseev, L.V.........................................197n Aleksei (metropolitan of Moscow)............ 213n, 231 Aleksei Fedorovich (Russian tsar).........xxv Aleksei Mikhailovich (Russian tsar).....................124, 249, 251, 255 Aleshkovskii, M.Kh................... 147n, 265n Alexander (Byz. emp.)............................. 40 Alexander II (Russ. emp.)......................xxv Algra, N.....................................7n, 18n, 28n Alishan, G.............................................301n Alkinoos..................................................18n Amira, K. von.................................13n, 46n Andrei Aleksandrovich (of Vladimir)...202 Andrei Dmitrievich (of Mozhaisk)....... 225 Andrei Iaroslavich (of Suzdal’).............. 193 Andrei Iur’evich (of Volynia)...............199n Andrei Iur’evich Bogoliubskii (of Vladimir)........................................... 193 Andrei Ivanovich (of Serpukhov).......189ff. Andrei Vasil’evich (of Uglich)..................................190n, 227ff. Andrei Vasil’evich (of Volotsk).............. 228 Ankhimiuk, Iu.V................ 175n, 176n, 177n Antigone................................................. 239 Antonov, A.V......................................... 175n Arbud......................................................207 Aristenes................................................... 91

Arogast....................................................14n Ashot Bagrationi...................21n, 295, 305n Askold.................................................... 200 Attila..................................................... 246n Austin, J.......................................................2 Avanesov, R.I..........................................229 Avenarius, M...........................................59n Avtokratov, V.N.................................... 123n B Bagrat Kuropalates..... 19, 21, 22, 304ff., 312 Bagrat III (of Georgia)..........................297 Bagrat IV (of Georgia).......................... 306 Bakhrushin, S.........................................171n Baranov, K.V......................................... 175n Baranowski, G...... xxiii, 34n, 37n, 44n, 45n, .............................. 62n, 69, 81n, 101n, 114ff. Barry, D.D..............................................242n Basil I (Byz. emp.).............................73, 184 Baty...........................................................157 Baumgarten, N. de..........................xxv, 55n Behrmann, H.......................................... 278 Beka.......................................... 304ff., 307ff. Beneshevich, V.N.........84n, 89n, 213n, 250 Bentham, J...................................................2 Benveniste, É..............................................7 Berdibek......................................... 213n, 231 Berezhkov, M............................ 269n, 270n, .......................................... 275n, 279ff., 288n Berman, H.J....................................68n, 238 Bibikov, M.V......................................... 183n Binchy, D.A.......................................9n, 15n Birger II (of Sweden).............................205 Biulek.......................................................231 Blastaris, Matthaeus........................... 304ff. Bloch, M......................................... 137n, 139 Blud........................................................144n Blum, J...............................................132, 135 Bodogast..................................................14n Boguslavskii, M.M............................... xiiin Boris Aleksandrovich (of Tver’)............................ 194n, 199n, 204, ...............................................221, 226ff., 230 Boris Vasil’evich (of Volotsk)..............227ff. Boris Vladimirovich................................. 37

316 Boris (Bulg. tsar)............................80n, 88n Boris Godunov (Russian tsar)........ 248, 251 Borisov, N.S...........................................247n Bozoyan, A................................. 298n, 299n Brezhnev, L.I........................................... 258 Brunner, G............................................. xiiin Brunner, H.............................................. 13n Buckland, W.W.................................... 100n Bunge, F. von................................54n, 274n Burgmann, L...........................................72n Bury, J.B................................................. 178n Bushuev, S.V..........................................164n Butler, W.B............................................. xiin C Cain...........................................................28 Catherine II............................................250 Chadwick, N........................................... 11n Chaev, N.S............................................. xixn Charlemagne......................................36, 163 Cherepnin, L.V............ xviiin, xix, xx, 123n, ........................171n, 188n, 191n, 196n, 197n, ........................ 203n, 204n, 205ff, 222, 251n, .......................266n, 268n, 271n, 286n, 289n Chernousov, E........................................ 64n Chingis-Khan................22, 147n, 157, 169n, .............................................. 211n, 246n, 253 Chistiakov, O.I..............................xxin, 66n Chudin..................................................35, 82 Cicero...................................................... 239 Claessen, H.J.M............ 22n, 24n, 25, 26, 28 Clark, R................................................. xiiin Cliteur, P...................................................... 3 Clovis...............................................12, 162ff. Cohen, R...................................................26 Conrad, H..............................13n, 54n, 163n Constantine the Great (Byz. emp.)....... 237 Constantine V Copronymus (Byz. emp.)................................................ 72 Constantine VII Porphyrogenitus (Byz. emp.)........................40, 131, 131n, 184 Constantius (Byz. emp.)........................ 96n Cross, S.H..........................xviin, 80n, 149n Crummey, R.O..........192n, 196n, 211n, 213n Cyril II (Russ. metropolitan)................... 91 Cyrillus.................................................. 88ff.

Law in Medieval Russia D Daniil Aleksandrovich (of Moscow)..... 193 Danislav Lazutinich...............................144 David Ol’govich (of Vladimir).............151ff. David the Restorer (of Georgia)...........297 David of Sanjak......................................299 Davit Bagrationi (of Georgia)........ 298, 311 Dekkers, R............................................ xiiin Dewey, H.................................. 79n, 97, 99n D’iakonov, I.M........................................ 15n D’iakonov, M.A...............xxiii, xiv, 64, 112n, ....................116, 118, 149n, 159n, 170n, 175n Dietze, J................................................ xviin Dir........................................................... 200 Dmitrii Aleksandrovich (of Novgorod).........................................202 Dmitrii Andreevich (?) (of Volynia)...................................... 199, 229 Dmitrii Iur’evich Shemiaka (of Galich)....................... 192, 194, 197, 199, ..............................................204, 225ff., 230 Dmitrii (Krasnyi) Iur’evich (of Galich)............................................ 225ff. Dmitrii Ivanovich Donskoi (of Moscow)................158, 172n, 177, 190ff., .......................................195ff., 204, 221, 247 Dobrynia.................................................144 Dolidze, I.S. ......... 295n, 304n, 305n, 306n, ....................... 307n, 308n, 309n, 310n, 313n Dondua, V.D.............................. 307n, 308n Dounar, T.I............................................256n Dowsett, C.J.F..................................... 299n Dubov, I.V.............................................254n Dvornichenko, A.Iu............................ 253ff. Dylykov, S.D............................................ 23n Dzhanibek Khan...........................213n, 230 E Eck, A......... xxii, 34n, 60n, 85n, 244n, 255n Edel, D.........................7n, 11n, 12n, 13n, 15n Edigei.................................................213, 231 Engels, F...............................................239ff. Epifanov, P.P......................................... 248n Eskin, Iu.M........................................... 175n Eutychius..................................................76 Ewers, I.Ph.G..........................................34n

Index of Personal Names Eymund..................................................... 55 Ezhov, V.A..............................................151n F Fedor Alekseevich (Russian tsar)................................. 177ff., 251 Fedor Iur’evich (of Suzdal’)............ 199, 230 Fedor Ivanovich (Russian tsar).............................167, 148, 251 Fedor L’vovich (of Novosil’-Odoev)......................199n, 230 Fedor Nikitich Romanov, see Filaret Fedor Ol’govich (of Riazan’).................. 225 Fedor Vasil’evich (of Riazan’)........ 199, 230 Feldbrugge, F............... xiin, xiiin, 1, 3n, 7n, ..................... 9n, 19n, 29n, 179n, 182n, 242n Fennel, J.................................................219n Feognost (metropolitan of Moscow)............ 213n, 231 Fikentscher, W......................................2n, 3 Filaret (patriarch of Russia)...................248 Filipp (metropolitan of Moscow).......247ff. Fisher, R.T....................................177n, 183n Forbes, N............................................. xviin Fotii (metropolitan of Moscow)............ 191 Franke, H..................................................2n Frensdorff, F............... 261n, 278, 283n, 285n Friedrich, J.................................... 15n, 101n Froianov, I.Ia.................. 37n, 50n, 67, 124n, ..........................132, 135ff., 149n, 150n, 151n, ........................... 156n, 162, 164, 168n, 253ff. G Gaius............................................... 98ff., 119 Galstian, A.A., .....................................301n Ganev, V......................................... 79n, 116n Ganshof, F.L.................................137n, 139n Gardanov, V.K...................................... 294n Gimon, T.V..................................147n, 170n Ginis, D...................................................72n Ginsburgs, G................................xiiin, 181n Giorgi V the Brilliant (of Georgia)..........................297, 304, 307ff. Giorgi XI (of Georgia)...........................303 Giorgi XII (of Georgia).................. 298, 311

317 Gippius, A.A.........................................262n Gleb Iur’evich (of Kiev)......................... 193 Gleb Vladimirovich.................................. 37 Goetz, L.K.................................... xiii, 268n Goetze, A................................................ 15n Goodman, G.R.........................................3n Gorskii, A.A......................... 42n, 55n, 134n, ..............................................141n, 142, 219n Gorskii, A.D.............. xxin, 212n, 213n, 214n Granberg, J.................................. 147n, 150n Grant, P.R.................................................3n Gregory of Tours...............................12, 162 Grekov, B.D.............xxn, xxi, 17n, 34n, 45n, ...................53n, 64n, 65ff., 81n, 133ff., 162n, ....................... 167n, 216n, 256n, 266n, 268n Grigor’ev, A.P............................. 213n, 230ff. Gudavichius, E......................................256n Gurevich, A.Ia.........................................131 Gurney, O.R............................................ 17n H Haakon V (of Norway)...........................205 Hakobian, V..........................................298n Halperin, Ch............157n, 216n, 218n, 246n Hammer, D.P.......................... 60, 62n, 69ff. Hammurabi..................................19, 30, 101 Hanak, W............................................. xviin Harmenopoulos.................................. 304ff. Hellie, R..............................xxii, 124n, 248n Hermogen (Germogen) (Russian patriarch).................................248 Hitler, A.................................................. 241 Hobbes, T....................................................2 Hoebel, A..................................................29 Hoekema, A........................................ 3, 28n Hofmann, M......................................... xiiin Holwerda, D............................................ 73n Homer................................. 16, 18n, 29n, 30 Howes, R.C.......................................... 190n I Iagich, V.V............................................... 53n Iakov (tysiatskii of Novgorod)...... 207, 268 Iakovlev, A.I.......................................... xixn Iakubovskii, A.......................................216n

318 Ian Vyshatich........................................144n Ianin, V.I....................67n, 147n, 175n, 186n, ............................... 207n, 208n, 212n, 244n, ............................... 262n, 264n, 265n, 268n, ........................................... 275n, 279n, 284n Iaropolk Sviatoslavich.............................171 Iaroslav Aleksandrovich (of Vladimir, Tver’ and Novgorod).......202 Iaroslav Iaroslavich (of Tver’)....................202ff., 206n, 220, 270 Iaroslav Iaroslavich (of Vladimir and Novgorod)... 193, 213, 230 Iaroslav Vladimirovich (of Novgorod).........................................207 Iaroslav Vladimirovich the Wise (Mudryi).....................xvii, 36ff., 49ff., 54ff., ...............................57ff., 82ff., 91, 141ff., 171, ............................... 187, 192, 200, 215, 244ff. Iaroslav Vsevolodovich (of Vladimir)................................... 193, 202 Igor (prince of Kiev) ..................40, 41, 52, ............................................. 55, 143, 168, 185 Igor (nephew of foregoing).................... 143 Igor Iaroslavich........................................171 Ilarion........................................................ 85 Indova, E.I............................................ xxin Ingigerd..................................................... 55 Ingvar Igor’evich (of Riazan’)................ 193 Ioann (metropolitan of Moscow)............213n, 230 Ioann (bishop of Sarai)..................213n, 230 Irakli II (of Georgia)....................... 297, 311 Isabella (of Armenia)...........................300n Isaev, I.A........................xxiv, 67, 134n, 244n Iskusevi.................................................... 143 Iukho, Ia.A............................................256n Iurii Danilovich (of Galicia)................199n Iurii Dmitrievich (of Galich)..................173n, 191ff., 194n, 225 Iurii Danilovich (of Moscow)..........................203n, 205, 220 Iurii Sviatoslavich (of Smolensk)...................................197, 229 Iurii Vladimirovich Dolgorukii............. 186 Iushkov, S.V............. xx, xiii, 43n, 62n, 65ff., .............................81n, 93, 134n, 144n, 162n, ..................................167n, 170n, 188n, 285n

Law in Medieval Russia Ivan Aleksandrovich (of Smolensk).................................. 198, 229 Ivan Andreevich (of Mozhaisk)................. 192n, 199, 225, 230 Ivan I Danilovich Kalita (of Moscow)..........................189, 191, 205ff. Ivan Fedorovich (of Riazan’)................................. 199n, 225ff. Ivan Iur’evich (of Novosil’-Odoev)......................199n, 230 Ivan II Ivanovich (of Moscow)...........189ff. Ivan IV Ivanovich (of Riazan’).......193, 199 Ivan III Vasil’evich, the Great (of Moscow).......... 123, 147, 174n, 187, 188n, .................................... 190n, 197, 205ff., 211, ................................. 214n, 221, 255, 263, 266 Ivan IV Vasil’evich, the Terrible (of Moscow)..........................124, 152, 175ff., .........................................188, 219n, 248, 251 Ivan III Vasil’evich (of Riazan’).............................. 199, 228, 230 Ivan Vasil’evich (of Serpukhov-Borovsk)................. 199, 230 Ivan Vasil’evich Gorbatyi (of Suzdal’)..................................... 192n, 227 Ivan Vladimirovich (of Pronsk).....................................199n, 230 Ivane Bagrationi......................................311 Ivar.................................................... 143, 185 Iziaslav Iaroslavich.............. 35, 44, 58n, 82, ...................................................104, 151, 171 Iziaslav Mstislavich (of Kiev)................ 186 Iziaslav Vladimirovich (of Polotsk).......151 J Javaxišvili, I.A............................ 303n, 308n John the Scholastic......................... 76, 89ff. Joseph of Volokolamsk......................... xixn Justinian I (Byz. emp.).......... 70, 76, 95, 305 Justinian II Rhinotmetes (Byz. emp.).... 71 K Kaiser, D.H...........xxii, 34n, 37n, 40n, 42n, ...................... 44, 46, 47, 60n, 69, 71n, 79n, ...................... 80n, 81n, 89n, 93n, 94n, 95n, ..................... 97n, 101, 102n, 104, 114, 123n, .......................184n, 244n, 255n, 266n, 286n

Index of Personal Names Kaiser, F.B.............................................256n Kalachov, N.V..............35n, 63, 108ff., 116ff. Kalinina, T.M........................................194n Kandelhard, R............................295n, 303n Karamzin, N.M............. xv, 148, 151n, 156n, ..................157n, 158, 192n, 205n, 217n, 251n Karnovich, E.P...................................... 218n Karpovich, M.......................................... 23n Karst, J.............. 294, 299ff., 307n, 310n, 313 Kashtanov, S.M.......184n, 185n, 202n, 269n Kaufhold, H......................................... 299n Kazakova, N.A................207n, 208n, 268n, ......................................... 269n, 276n, 279ff. Kazimir IV (of Poland and Lithuania).......197ff., 205ff., .....................210, 214, 222, 224, 229ff., 270n Kekelia, M., . .........................................311n Kelly, F..................................................... 15n Kerim-Berdy......................................... 217n Kevorkian, R.........................................298n Khashaev, Kh.M.................................. 294n Khazanov, A.M.......................................22n Khetum I (of Armenia)......................... 300 Khlebnikov, N. .................................... 134n Khoroshev, A.S.....................................262n Khoroshkevich, A.L..................... 198n, 224 Khrushchev, N.S......................................133 Kirill (metropolitan of Moscow)...........230 Kisterev, S.N........................ 36n, 48n, 284n Kleimola, A.............................. 79n, 97, 99n Kleinenberg, I.E...........................279, 284n Kliuchevskii, V.O...........xxv, 63, 68, 86, 112, ...................... 116n, 135, 147n, 168n, 175, 177, ........................251n, 262n, 264n, 265n, 271n Köhler, O...................................................2n Kolff, D.............................................. 7n, 11n Komarov, A.V....................................... 294n Konovalova, I.G.................................... 48n Konstantin Pail....................................300n Korolev, A.S........................................... 185n Koschaker, P...........................................59ff. Kosniachko................................... 35, 44, 82 Kotliar, N.F......................................55n, 142 Kovalevskii, M.M......................... 294n, 313 Kozlova, N.V...........................................249 Kresten, O..............................................72n

319 Krivosheev, Iu.V....................................254n Kucherov, S............................................ 68n Kuchkin, V.A..............................188n, 249n Küpper, H.............................. xiiin, xiv, 68n Kuznetsov, P.V.......................................184n L Lange, N................................................... 99 Lazuta, S................................................ 257n Lenin, V.I................................................. 179 Leo III the Isaurian (Byz. emp.)............. 72 Leo VI the Wise (Byz. emp.)........ 40, 73ff. Leo (Levon) II the Great (of Armenia).................................296, 300n Leontovich, F.I.................................... 294n Lev Danilovich (of Galicia).................245n Levitsky, S.L........................................... 46n Limonov, Iu.A. 150n, 186n Lipshits, E.E..........71n, 72n, 93n, 96, 109ff. Llewellyn, K..............................................29 Locke, J........................................................2 Loewe, K. von.......................................256n Lokin, J.H.A.......................... 70n, 72n, 73n, ...............................................75n, 76n, 305n Lordkipanidze, M.D.....................21n, 306n Lotharius...................................................56 Louis the Pious.........................................56 Lovmians’kii, Kh.................................... 193 Lukin, P.B..............................................149n M MacNeill, E............................................. 15n Magnus V Eriksson (of Sweden)...................................... 205, 222 Maine, H......................................1, 2, 10, 32 Maiorov, A.V.........................................254n Makrizi...................................................... 23 Maksimeiko, N.A.................64ff., 68ff., 86, .......................................94ff., 106, 117n, 118 Mallory, J.P.......................................... 8n, 9n Man’kov, A.D............ xxin, 124n, 125n, 248n Markevich, A.I...................................... 175n Martens, F.F.......................................... 181n Martysevich, I.D......................... 255n, 286n Marx, K................................................239ff. Mavrodin, V.V. ............................... 48n, 132

320 Maxim (Kievan metropolitan)..............91n McLeod, N.............................................. 15n Medvedev, I.P..................71n, 72n, 73n, 74n, ...................................... 75n, 93n, 94n, 109n Meiske, C............................................. 248n Meissner, B............................................242n Mel’nikov, Iu.N..................................... 175n Mel’nikova, E.A................. 55n, 147n, 170n, ........................................... 183n, 184n, 269n Mengu-Timur........................... 23n, 213, 230 Menshikov, A.D.................................... 218n Merkulov, V.I..........................................56n Methodius............................................. 88ff. Michael III (Byz. emp.).........................88n Mikhail (metropolitan of Moscow).......231 Mikhail Aleksandrovich (of Tver’)......................172, 195ff., 221, 224ff. Mikhail Andreevich (of Verei-Belozero).............................. 225ff. Mikhail Borisovich (of Tver’).................... 196, 198ff., 227ff., 230 Mikhail Fedorovich Romanov (Russian tsar)....................................248, 251 Mikhail Iaroslavich (of Tver’).... 202ff., 220 Mikhail Iaroslavich (of Vladimir) ........ 193 Mikhail Iur’evich (of Vladimir)............. 193 Mikhail Vsevolodovich (of Kiev).......... 193 Mikhailova, I.B....................................... 254 Mikula..................................................35, 82 Mikyfor (Nikifor) the Kievan..... 35, 44, 82 Mironov, G.E........................................164n Miroshka (posadnik of Novgorod)................. 207, 268 Mitchell, R........................................... xviin Mitteis, L.......................................127, 305n Mkhitar Gosh..........................299ff., 304ff. Morgan, J.H................................................2 Morse, B.W...............................................3n Mstislav Davidovich (of Smolensk).............................41, 192, 229 Mstislav Sviatopolkich............................152 Mstislav Vladimirovich....... 170ff., 186, 192 Munstede, Hans.....................................270 Murtazy................................................... 214 Mushkhelishvili, D.I....................21n, 306n

Law in Medieval Russia N Nasilov, A.D............................................ 23n Nasonov, A.N..............................xviin, 216n Nazarenko, A.V.............................36n, 170n Nazarova, E.I................................54n, 283n Nedzila Pekhtinich.................................144 Nestor.......................................................xvi Nevolin......................................... 114n, 115n Nikifor (Kievan metropolitan)................92 Nikitskii, A............160n, 210n, 270n, 273n, .................................274n, 276n, 284n, 288n Nikol’skii, S.L............. 42n, 43n, 134n, 141ff. Nikon (Russian patriarch)......................249 Noah........................................................xvii Nosov, E.N..................................254n, 262n Novitskaia, T.E.....................................124n Novosel’tsev, A.P................36n, 170n, 186n, ..................................................... 194n,212n O Obolensky, D............................................ 69 Odysseus.............................................. 240n Olaf ......................................................... 143 Olaf Tryggvason........................................ 55 Oleg (prince of Kiev)...... 40, 142, 168, 184, ............................................... 185n, 200, 212 Oleg Ivanovich (of Riazan’)................... 225 Oleg Sviatoslavich (of Dereva) ..............171 Oleg Sviatoslavich (of Chernigov)........ 186 Olga.........41, 43n, 52, 55, 131, 143, 168, 184n Olgerd Gediminovich (prince of Lithuania)...................... 196, 229 Omel’chenko, O.A............................... 244n Onasch, K...................................147n, 262n Oosten, J.P...............................................25n Oroschakoff, H...................................... 79n Ostrowski, D............ 157n, 211n, 216n, 217n, ............................................. 218n, 219, 246n P Paichadze, G.G.....................................298n Papovian, A.A.......................................301n Pashuto, V.T....................... 54n, 185n, 186n, ............................................ 193n, 212n, 283n Patrikii Narimontovich......................... 177

Index of Personal Names Pavlov, A.S............................................. 123n Pavlov, A.S...................................... 89n, 93n Pavlov-Sil’vanskii, N.P..........175n, 176n, 177 Pchelov, E.V..................... xxv, 55n, 56, 168n Pereneg.......................................... 35, 44, 82 Perun (Slavic deity)...........................41, 56n Peshchak, M.M......................... 197n, 198n, ................................................ 214n, 229, 231 Peter the Great.......... xxi, xxv, 125, 167, 178, ......................................... 188, 218n, 219, 251 Petr Dmitrievich (of Dmitrov)............. 225 Photius (Byz. patriarch)...................74, 88n Piotrovskaia, E.K................................. 123n Pivovarov, Iu.S...................................... 244n Plettenburg, Walter von (Livonian Landmeister)..........................210 Poliak, A.G............................................124n Pomorski, S........................................... xiiin Poppe, A.W..................................xivn, 193n Predslava................................................. 143 Presniakov, A.E..................121n, 168n, 170n Priselkov, M.D...................................... 213n Pritchard, J.B.......................................... 15n Pronshtein, A.P.................................... 280n Pseudo-Dmitrii I ...................................248 Pseudo-Dmitrii II..................................248 Purtseladze, D.I.............. 303n, 304n, 305n, .................................307n, 308n, 309n, 313n Pushkarev, S.G............. 131n, 132n, 177, 183n R Ranke, L...................................................... 5 Rapov, O.M..............................................131 Riasanovsky, V.A............................. 22n, 23n Riesenkampf, N.G.....................270n, 274n, .......................................... 275n, 276n, 278ff. Rogneda................................................... 55n Rogvolod (Rognvald).............................. 55n Romanus I Lecapenus (Byz. emp.)...40, 75 Rostislav Mstislavich (of Smolensk)................ 85, 163, 192ff., 245n Ruben I (of Armenia)..........................300n Rurik.................... xvii, 54, 56, 88n, 138, 141, .............................. 144, 167ff., 189, 200, 262 Rusanivs’kyi, V.M..........................214n, 231

321 Rybina, E.A........... 186n, 207n, 208n, 267n, ............... 268n, 270n, 274n, 275n, 276n, 279 Rydzevskaia, E.A.................................... 55n S Saak Partev (Armenian catholicos).......298 Sacco, R.................................................. 68n Saidov, M.S........................................... 294n Sakharov, A.D.......................................... 258 Sakharov, A.N......................xivn, 40n, 81n, ............................................120n, 152n, 184n Salegast....................................................14n Salogubova, E.V...........................61, 68, 86, ................................................ 94, 105ff., 122 Satolin, U.M..........................................256n Savva (Serbian bishop)............................. 91 Scheil, V...................................................19n Scheltema, H.J........................................ 73n Schlacks, C. jr......................................... xxii Schlüter, W......... 261n, 279, 283n, 284n, 285 Schminck, A............................................ 73n Schröder, R..................................... 13n, 54n Schroeder, F.C......................................242n Schultz, L.................................................xiv Selb, W...................................................305n Semën Ivanovich (of Moscow)... 189ff., 193 Sergeevich, V.I.............. xiii, 35n, 64, 106ff., ........................... 112, 114ff., 122, 148ff., 153n, ........................156n, 157n, 158n, 162n, 168n, ....................... 170n, 172ff., 175n, 188n, 194n Sergei of Radonezh................................247 Shakhmatov, A.A.............................xvi, xvii Shapiro, A.L.........................................130ff. Shaskol’skii, I.P........................... 205n, 275n Shchapov, Ia.N....................... 34n, 66ff., 79, ...................... 84ff., 89ff., 120ff., 243ff., 273n Shchavelev, A.S......................................170n Shchepkin, E.........................................168n Sherbowitz-Wetzor, O.P.............xviin, 80n, ......................................................131n, 149n Shirokorad, A.B....................................219n Shtamm, S.I..........................................124n Shunaev, Dzh....................................... 294n Sigibert.................................................... 162 Silvester (Livonian Landmeister)......... 209

322 Simons, W.B..................................... xi, xiiin Sirks, B................................................7n, 10 Skalník, P..................................... 22n, 25, 26 Skrynnikov, R.G.........................243n, 247ff. Sludi......................................................... 143 Slusser, R.M.......................................... 181n Smbat Sparapet ................................. 299ff. Socrates................................................... 239 Sofiia Alekseevna (regent of Russia)......251 Sofronenko, K.A............................ xx, 125n Sohm, R..........................................127, 305n Soidse, see Zoidze Solov’ev, S.M...................63, 86, 169n, 170n Soloviev, A.V. . .....................68ff., 93n, 124n Sophocles..............................................239n Sorlin, I..................................40n, 81n, 152n Speranskii, M.......................................... 124 Stalin, I.V........... 65, 133, 136ff., 167, 179, 258 Stephen (Byz. emp.)................................ 40 Stephenson, C., 137n Stoliarova, L.V.......................................184n Stroev, P...................................................xxv Strube de Piermont................................. 99 Sukasian, A.G................... 300n, 301n, 302n Surguladze, I.I...................303n, 308n, 311n Surguladze, M........................................311n Svanhild................................................... 143 Sveinald ........................................143ff., 185 Sverdlov, M.B.........................36n, 48n, 51n, ................................. 132ff., 136n, 162n, 254n Sverki..............................................143, 185n Sviatopolk Iziaslavich.............................152 Sviatopolk Vladimirovich............. 37, 50, 57 Sviatoslav Iaroslavich.................. 35, 44, 82, ................................................ 151, 171, 192ff. Sviatoslav Igor’evich..........143, 168, 171, 185 Sviatoslav Ivanovich (of Smolensk)................................ 197n, 229 Sviatoslav Ol’govich (of Novgorod)................................. 85, 245n Svidrigailo (of Lithuania)................... 197, 205, 222, 229 Szeftel, M......................xxii, 34n, 60n, 85n, .................................... 135, 147n, 244n, 255n

Law in Medieval Russia T Tacitus........................... 11n, 13, 162, 2240n Taidula........................................ 213n, 230ff. Tamayo y Salmorán, R...........................25n Tassilo...................................................... 163 Tatishchev, V.N............xiv, 33, 81, 108n, 186 Theodor Bestes........................................79 Thomas Aquinas..................................... 239 Thomson, R.W....................................300n Thor (Germanic deity)...........................56n Thorpe, L................................................ 12n Tikhomirov, M.N.............. xviin, xixn, 34n, ................. 35n, 38, 39n, 43n, 46n, 65ff., 75n, ..................... 79n, 80n, 81n, 82ff., 92ff., 107, ...................... 110n, 116ff., 248n, 262n, 270n Tiktin, N.I............................................ 125n Timoshina, I.A.................................... 284n Tiuliak............................................ 213n, 231 Tobien, E.S..............................................34n Tokhtamysh............ 158, 195ff., 212, 214, 231 Tolochko, P.P............................... 253n, 262n Tridat (Tiridates) III (of Armenia)....... 295 Triska, J.................................................. 181n Trunk, A................................................ xiiin Tunen, Coerd van...................................270 U Ulpian........................................... 95ff., 98ff. Ulug Mekhmet.................................... 191ff. Uzbek Khan.......................................... 213n V Vakhtang VI........................21, 303ff., 309ff. Valikonite, I..........................................256n Valk, S.N.................................xix, 87n, 153n Variazhko..............................................144n Vasil’evskii, V.G......................................72n Vasilii I Dmitrievich (of Moscow).... 190ff. Vasilii Iaroslavich (of Serpukhov and Borovsk)......173n, 174n, .....................................................191n, 225ff. Vasilii Iur’evich Kosoi (of Galich)......................172n, 192, 204, 226 Vasilii Iur’evich (of Suzdal’)........... 199, 230 Vasilii II Vasil’evich the Blind

Index of Personal Names (of Moscow)...................... 172n, 173n, 174n, .....................190ff., 194n, 197, 199, 204, 221 Vasil’ko Rostislavich (of Terebovl’)........151 Veen, Th..................................................59n Veenhof, K.R..........................................19n Venediktov, A.V...................................... 130 Vernadsky, G..................xxii, 22n, 23n, 34n, ....................42n, 46n, 81n, 95n, 135ff., 177n, ........................183n, 216n, 255n, 266n, 286n Veselovskii, S.B..................................... xixn Viacheslav Iaroslavich.............................171 Vidogast..................................................14n Vilenskii, B.V........................................ xxin Vilkul, T.I..............................................150n Vinke, Heidenreich (Livonian Landmeister)..........................210 Visogast...................................................14n Vitovt (prince of Lithuania)............191, 194n, 196, ........................................... 198ff., 210, 229ff. Vladimir Andreevich (of Serpukhov)............................ 204, 224ff. Vladimir Mstislavich (of Dorogobuzh).................................. 207n Vladimir Sviatoslavich (St. Vladimir)............xiv, xvii, 12, 36, 37, 42, ...................... 55, 61n, 81n, 83, 142, 144, 149, ................. 151ff., 167, 171, 187, 200, 214, 244 Vladimir Vsevolodovich Monomakh....................xvii, 39, 83, 93, 170, ........................186ff., 192ff., 207n, 214n, 215 Vladimirskii-Budanov, M.F...........xxiii, 63, ............................. 86, 156n, 250, 266n, 272n Vladislav.................................................. 143 Vliet, E. van der........................7n, 18n, 29n Volos (Slavic deity)...................................41 Vorob’ev, V.M....................................... 253ff. Vseslav Briacheslavich.............................151 Vsevolod Iaroslavich.35, 44, 82, 144, 151, 171

323 Vsevolod Iur’evich Bol’shoe Gnezdo (of Vladimir)........................................... 193 Vsevolod Mstislavich (of Novgorod).......................... 82, 159, 273n Vsevolod Mstislavich (?) (of Smolensk)..........................................229 Vuefast..................................................... 143 Vyshata..................................................144n W Wagenvoort, H...................................... 10n Wal, N. van der, ........................... 70n, 72n, ....................................... 73n, 75n, 76n, 305n Walram (Land Marshal)........................ 208 Wardrop, O...........................................307n Watling, E.F..........................................239n Weitenberg, J.J.S...................................298n Wenger, L.......................................127, 305n Winckler, H...........................15n, 19n, 101n Wladyslaw Jagiello (of Poland).......197, 229 Wortman, R.S.......................................256n Y Yovhannes III (Armenian catholicos)..........................298n Z Zachariae von Lingenthal, C.E.............72n Zernack, K............................................149n Zeus...................................................... 240n Zimin, A.A............ xixn, xxn, xxv, 34n, 37n, .............. 38n, 39n, 40n, 41n, 43n, 46n, 47n, ............... 48n, 51n, 52n, 66, 81n, 101n, 123n, .............. 152n, 177n, 244n, 266n, 271n, 272n Zimmer, S...............................7, 8n, 9, 18, 32 Zoidze, B.............................. 295n, 303n, 313 Zonares...................................................... 91 Žužek, I.................................................. 89n

Subject Index A Abridged Pravda.......................................34 Aethelberht, Law of ................................54 ancient law.........................1ff., 9ff., 18, 26ff. Archeographical Commission.........xvi, xix archeology............................................... 8ff. archives................................. xviii ff., 87, 188 Armenia................................................295ff. Armenian church...................... 295ff., 312ff. Armenian law............................ 298ff., 312ff. asega..............................................13, 29ff., 52 aznauri............................................... 21, 306 B Babylonian law............................... 19ff., 101 Bagrat Kuropalates, Law of................305ff. Balkan, legal connections with..... 66, 68ff., .....................................................89ff., 122ff. Baltic cities......................... 206ff., 264, 267 basileus............................................... 211, 219 Basilika....................................................73ff. Beka and Aghbuga, Laws of........305, 307ff. Beowulf epic............................................140 bezchestie............................................ 116, 122 Bill of Rights (U.S.A.).......................... 233ff. birchbark documents...............................xx blood feuds.................................... 43ff., 106 Boyar Duma.............................................251 boyars.......................... xxv, 135, 137ff.,144ff., .................................... 155ff., 159, 161, 174ff., ....................................248ff., 252ff., 258, 265 brithemain.........................................12ff., 30 Byzantine law.....................xviii, 62ff., 66ff., ..................70-79, 87ff., 108ff., 121, 306, 309 Byzantium, relations with Russia..... xvi ff., .......................................... 39ff., 80ff., 183ff. C capital punishment....................... 20, 61, 72 Capitulare de Villis.....................................36 Catholicos, Law of the.......................... 309 cheliadin......................................................48 chernye liudi, chern’.....................155, 256, 267 chronicles, see Primary Chronicle; Novgorod Chronicle church statutes............. 66ff., 83ff., 88, 108,

...........................................120ff., 163, 244ff. Collectio XXV capitolorum.................. 76, 90 Collectio LXXXVII capitolorum......76, 90ff. Collectio XIV titulorum............................. 90 Collectio L titulorum.............................76, 89 Collectio LX titulorum................................76 Collectio tripartita......................................76 collective liability........................... 16ff., 20 Communist Party of the Soviet Union........................................179ff. composition...........................................41ff. Corpus Iuris Civilis................... 60, 64, 70ff., ......................................................76, 97, 124 Court Charter of Pskov.......... xiv, xxii, 123, .......................160, 164, 198, 286, 288ff., 291 Court Law for the People........53, 64ff., 68, ............79ff., 92, 96ff., 105ff., 108, 116ff., 121 Court of St.Peter (in Novgorod)....... 270ff. Crusader states, law of...........................302 customary law.........29, 57ff., 61, 302ff., 306 D dan’............................................................131 Dasturlamali...........................................311ff. debt slavery.............................................. 20 Déclaration des droits de l’homme et du citoyen............................................... 234 Declaration of Independence (U.S.A.).................................................... 234 derbfine................................................11, 169 didebuli............................................... 21, 306 Digesta....................................................... 70 Drevneishaia Pravda, see Oldest Pravda druzhina.................................38, 41ff., 55-56, ............................................140-145, 161, 185 due process....................................235, 256ff. Dukhovnyi Reglament...............................250 dvor E early law, see ancient law Ecloga......................63ff., 67ff., 72ff., 80, 90, ............................ 92, 94, 96, 99, 105ff., 108, .............................. 111ff., 121, 123, 125ff., 299 Eisagoge......................................................74 Enlightenment, Age of........................242ff.

326 Epanagoge..........................................63, 74ff. Epitome....................................................... 75 equality.......................................235ff., 257ff. Ewa ad Amorem.................................... 14, 54 Expanded Pravda..................xxi, 39, 41, 64, ................................................... 82ff., 92, 99 F Farmers’ Law, see Nomos Georgikos feudalism................................133ff., 136-139, ........................................... 145, 240ff., 252ff. fiscus......................................................... 114 Four Freedoms........................................ 234 freedom of conscience........................238ff. Frisian law................................................. 13 furtum.........................................................98 G Gefolgschaft, see druzhina genealogy.............................................xxv ff. gens..............................................................11 Georgia.................................................297ff. Georgian law......................21ff., 303ff, 312ff. Georgievsk treaty...................................298 gerontes................................................... 29ff. Giorgi V the Brilliant, Law of........... 307ff. glexi.................................................... 21, 306 gosudar’..............................................211, 248 Gothic Coast.............................. 207ff., 268 golovnichestvo.............................................45 gradskie zakony, see Zakon gradskii gramoty................................ xvi, xviii ff., 267 grand prince (title)...............................192ff. gridin, grid’.................................................42 H Hanseatic League...................... 206ff., 261, ...................................................267ff., 274ff. Hexabiblos of Harmenopoulos........... 304ff. Hittite law........................... 9, 15, 17, 95, 101 human rights................................... 233-260 I iabetnik.................................................14, 42 iarlyk............................................. 211ff., 246 Iasa of Chingis-Khan.............................22ff.

Law in Medieval Russia Iazhel’bitsy treaty.................................. 204 iconoclasm................................................ 72 Ikh Tsaaz, see Mongol law Indo-Europeans.......................................5ff. inheritance law.................................... 114ff. Ireland, Old-Irish law......................9, 12, 15 izgoi............................................................42 izvod procedure.................................... 46ff. J judge-made law.......................................... 6 juries.......................................................... 18 K Kanonagirk’............................................. 300 kholopy....................... 43ff., 48, 95, 112ff., 138 kingship, Frankish....................10, 12, 162ff. Knigi Zakonnye.................. xviii, 71, 88, 93ff., ........................................... 109, 121, 123, 126 koniukh staryi..........................................43ff. Kormchaia, kormchie.................. xviii, 33, 63, ................................ 68, 81, 83ff., 87-92, 108, .............................................119ff., 122, 125ff. Korostyn’ treaty..................................... 204 Kratkaia Pravda, see Short Pravda krestnoe tselovanie ..............................153, 172 krovavyi muzh (bloodied man)............ 119ff. kuropalates....................................... 21, 305ff. L land tenure....................................... 129-145 Landmeister.......................................... 209ff. law, definition of......................................2ff. law, origins of............................... 28ff., 48ff. leges barbarorum.......................14ff., 32, 53ff., .................................... 67, 81, 99ff., 163, 306 Lex Alamannorum.................................... 163 Lex Angliorum et Werinorum......................54 Lex Aquilia........................................... 100ff. Lex Baiuvariorum.................................... 163 Lex Cornelia de iniuriis...............................95 Lex Francorum Chamavorum.....................54 Lex Frisionum.............................................54 Lex militaris............................................... 71 Lex Rhodia................................................. 71 Lex rustica, see Nomos Georgikos

Subject Index

327

Lex Saxonum..............................................54 Lex Thuringorum........................................54 Lithuania......................................196ff., 205 Liubech conference.................................151 lóg n-enech, díre.......................................... 15 Lübeck law........................ 276ff., 281ff., 286 luchshie liudi..............................................155

ognishchanin.......................................... 14, 43 Old Testament law.............. 71, 75, 108, 118, ................................................ 300, 302, 304 Oldest Pravda........ 35ff., 57ff., 82, 97, 100ff. Ordá (Horde)...................... 172, 195ff., 212ff. otchina.................................... 168, 189ff., 211 ownership.............................................130ff.

M Marxist historiography...............11, 49, 60, ............................................ 132ff., 162, 187ff. mechnik.................................................14, 42 medicatura................................................... 9 medieval legal history........................... xi, 1, Merilo Pravednoe.................. xviii, 79, 81, 88, ..........................................92ff., 110, 123, 126 mestnichestvo......................................174-178 Mkhitar Gosh, Code of......299ff., 302, 305 monetary system......................................36 Mongol law.............................................22ff. Mongols............... 22ff., 148, 157ff., 172, 200, ....... 211ff., 215ff., 245ff., 262ff., 296ff., 300ff. Monomakh, Law of...........................83, 114 Mosaic law, see Old Testament law

P Pandectae....................................................59 patriarchy..................................... 9ff., 168ff. pod”ezdnoi...................................................43 poinè........................................................... 16 pokon virnyi................................................82 Polnoe Sobranie Russkikh Letopisei.............xvi Polnoe Sobranie Zakonov.................. 124, 249 poliud’e. .....................................................131 posadnik..................................159, 163, 264ff. posadskie liudi........................................... 255 Povest’ Vremennykh Let, see Primary Chronicle Pravda of Iaroslav, see Oldest Pravda Pravda Iaroslavichei (Pravda of Iaroslav’s Sons)...... 35ff., 82, 102 Pravosudie Metropolich’e............................123 prigorod...................................155, 159ff., 263 Primary Chronicle...........xvi ff., 36ff., 80ff., ..................... 139, 143, 148ff., 168, 183ff., 186 principum placita.................................... 104 procedure................................... 46ff., 156ff. Procheiron................63, 67ff., 73ff., 80, 90ff., .....................96, 108, 112ff., 118ff., 121, 125ff. Prostrannaia Pravda, see Expanded Pravda Pskov, government.................................210

N Nachal’naia Letopis’, see Primary Chronicle namestnik.............................................. 270ff. narochitye liudi..........................................155 Nestor Chronicle, see Primary Chronicle Nibelungenlied..........................................140 Nomocanon......................xviii, 33, 63, 67, 79, .............................................85ff., 105ff., 309 Nomocanon XIV titulorum...................76, 79 Nomos Georgikos . ....................68, 71, 73, 88, ................................ 93, 98, 108ff., 123, 125ff. Novellae...............................................60, 90 Novgorod, government.............. 159ff., 201, ..............................................249ff., 264-266 Novgorod Chronicle (First)..... xvi ff., 36ff., ...................................... 48ff., 88, 143, 147ff. O oath . .................................................. 106ff., see also krestnoe tselovanie

R rachineburgi............................................. 13ff. Raskol.......................................................249 ratainyi.......................................................43 razriadnye knigi.....................................176ff. Redactio systematica sive Tarasiana............. 77 riad................................................. 153ff., 156 Roman law.........................6ff., 10ff., 59-128 Rurikids (house of Rurik)........xiv, 10, 15ff., .......................................................161, 167ff.

328 Russkaia Pravda.......................... xv ff., xviii, .......... xxi ff., 14ff., 20, 31, 33-58, 62ff., 81-83, ............... 105, 161, 207ff., 262, 266, 272, 286 russkie stat’i................................................117 S Salic Law............................ 14, 16ff., 32, 100 Scandinavians in Russia....... 49ff., 54ff., 63, .....................................................65ff., 167ff. sel’skii starosta.............................................43 separation of church and state.......... 237ff., ..............................................................247ff. separation of powers...........................236ff. Short Pravda........ xxi, 22, 35-39, 41ff., 82ff., ....................................88, 94ff., 102ff., 117ff. sick-maintenance.................................. 9, 15 sisxli................................. 21, 306, 308ff., 310 Skra................................................... 261-291 Slovo o polku Igoreve.................................140 Smbat Sparapet, Code of...................300ff. smerdy.............................................. 43ff., 138 Smolensk......................... 41, 163, 192, 197ff. Sobornoe Ulozhenie, see Ulozhenie of 1649 Sokrashchennaia Pravda, see Abridged Pravda sources........................................xv ff., 148ff. Sovet Gospod............................................. 159 starshinstvo............................161, 168ff., 189, ..............................................200, 202, 215ff. state, origins of..................................... 24ff. Stoglav...................................................... 124 succession (princely, in Kievan Russia)...........10ff., 151, ............................................153, 167ff., 194ff. Sudebnik, Svodnyi, of 1606/1607............. 124 svod procedure...................................... 46ff. Syntagma Canonum........... 67, 76ff., 86, 89ff. Syntagma of Matthaeus Blastaris....... 304ff. Syro-Roman Code...................... 299, 304ff. T Table of Ranks..............................167, 178ff. Tatars.......................148, 157ff., 191ff., 195ff., .........................................211ff., 215ff., 246ff.

Law in Medieval Russia Teutonic Order...........................204, 209ff. theft..................................98ff., 103ff., 110ff. tithes.........................................................121 tiun, tivun, tivunets.............................. 14, 43 translations............................................. xxii treaties, internal Russian............... 153, 171ff., 181-231 treaties, with Byzantium............... 39ff., 80ff., 105ff., ....................................................... 122, 183ff. Treaty of Rome....................................... 234 tsar’ (title)..........................................158, 211 tysiatskii..................................159, 163, 264ff. U udel....................... 155, 170ff., 187, 190ff., 215 Ulozhenie of 1497......................................123 Ulozhenie of 1649............................. 124, 248 Universal Declaration of Human Rights..................................... 233ff. urban freedom..............................241, 253ff. uroki...........................................................41 V Vakhtang VI, Law Code of.................310ff. Vakhtang VI, Laws of.........................303ff. veche.................... 147-165, 201, 249ff., 264ff. verv’..................................................... 17, 20 Vinodol, Statute of................................... 53 vira..........................................................45ff. virnik..........................................................14 vis genitalis.............................................. 11ff. W wergeld.................................17, 36, 39ff., 127 Z Zakon gradskii..................................... 75, 125 Zakon russkii......................... 40, 51f., 58, 122 Zakon Sudnyi liudem, see Court Law for the People Zemskii Sobor................................ 248ff., 251 zhit’i liudi.......................................... 201, 265

Glossary of Russian and Foreign Terms (terms occurring in the text and accompanied by a translation have not been included as a rule) ab initio

from the beginning (Latin)

actiones

see in rem

amirspasalari

commander-in-chief (Georgian, of Persian origin)

asega

law-sayer (Frisian)

atabagi

“father-of-the-king” (Georgian, of Turkic origin), high official

avant la lettre

“before the letter” (French); said when applying a term to something occurring or existing before the term itself was coined

aznauri

noblemen (Georgian)

basileopater

father-of-the-emperor (Byzantine honorific title)

bezchestie

insult, injury

blizhnye

close relatives

bratochado

nephew (son of one’s brother)

brithemain

jurisconsults, legal experts (Old Irish)

Busskatalog

catalogue of fixed fines for homicide, physical injuries, etc.

catholicos

title of patriarch of the Armenian and Georgian churches

cheliadin

(dependent) member of household, such as child or serf (compare Latin filius)

chern’

the common people (esp. in Novgorod); also chernye liudi (“black people”)

chiliarch

“thousandman” (Greek), see tysiatskii

colluvies gentium

confluence of peoples (Latin)

commodatum

loan for use (Latin)

constitutiones

imperial laws (Latin)

corpus alienum

foreign body (Latin)

Corpus Iuris Civilis

the final fixation of Roman law, in the middle of the 6th century, consisting of the Institutions of Justinian, the Codex, the Pandectae or Digesta, and the Novellae

dan’

tribute (lit. “gift”)

derbfine

extended patrilinear family of four generations (Old Irish)

didebuli

magnates, great nobles (Georgian)

Digesta

one of the four parts of the Corpus Iuris Civilis, consisting of excerpts from the writings of the classical Roman jurists; also Pandectae

díre

(Old Irish) honour-price

doynisse

kind of fur (Novgorod Skra)

330


Drevneishaia Pravda

“Oldest Pravda”, also “Pravda of Iaroslav”, oldest segment of Russkaia Pravda

druzhina

following, entourage (of prince or lord; see also Gefolgschaft)

druzhinnik

member of druzhina

dvor

court, also house

editio princeps

main or basic edition of text

ex nihilo

from, or out of, nothing

filid

(Old Irish) learned class of poets and bards

fiscus

(Latin) state treasury

furtum

(Latin) theft

Gefolgschaft

following, entourage (of prince or lord; German); same as druzhina

genius

(Latin) spirit uniting and permeating gens

gens

(Latin) group of persons united by a common (patrilinear) ancestry

gerontes

“old men” (Greek), esp. elders entrusted with public powers

glexi

(dependent) peasants (Georgian)

golovnichestvo

“head money”, to be paid by killer and his relatives

gosudar’

Lord, sovereign, majesty

gradskie zakony

“city laws”, Russian term referring esp. to Ecloga and Procheiron

gramota

charter, document

grid’

also gridin, junior member of the druzhina, guard

gridenisse

guardhouse (Novgorod Skra; from gridnitsa, itself of Scandinavian origin)

grivna

basic monetary unit in Kievan Russia; pound

gundstabl’

commander-in-chief (Armenian; from French connétable, from Latin constabularius)

hovesknecht

official in German Court in Novgorod (Skra)

iabetnik

court official, bailiff

iarlyk

(Turkic) in medieval Russia: charter issued by Mongol-Tatar ruler

Iasa

Law Code of Chingis-Khan

Ikh Tsaaz

Law Code of the Oirat Mongols of 1640

in rem

“in a thing” (Latin); esp. “actiones in rem”, lawsuits concerning a material object, as opposed to lawsuits against persons, “actiones in personam”

in statu nascendi

in the process of being born (Latin)

iniuria

unlawful action, injury (Latin)

inter vivos

“among the living” (Latin); esp. in respect of dispositions, as opposed to testaments


331

iuridicus

law-sayer (Latin)

izgoi

persons who found themselves outside the ordinary social units of family, clan, druzhina, etc.

izvod

version of manuscript, recension; also (in Russkaia Pravda): type of procedure

kholopy

slaves

klete

cellar, storehouse (Novgorod Skra)

knape

junior merchant (Novgorod Skra)

knecht

junior merchant (Novgorod Skra); also: dependent (usually young) person

kniaz’

prince (etymologically related to “king”); also translated as “duke”

Knigi Zakonnye

“Law Books”, Russian collection, of Byzantine origin, of which the Nomos Georgikos is the main component

koniukh staryi

senior stablemaster

kormchaia

Russian version of the Nomocanon

kormilets, kormilitsa

slaves or unfree persons (male/female), entrusted with care of children

kramola

sedition, rebellion, treason

krazha

theft

krestnoe tselovanie

“kissing the Cross”; standard form of oath in medieval Russia

kuna

Old Russian monetary unit

kuropalates

Byzantine title, traditionally borne by Georgian kings

Landmeister

(German) regional head of Teutonic Order

lantvart

(Middle Low German) travelling to and from Novgorod by land (Novgorod Skra); also watervart (by water), somervart (during summer), wintervart, wakevart (by sleigh)

leges barbarorum

ancient laws of Germanic peoples, such as the Salic Law

leges speciales

special laws, in particular three Byzantine laws from the 8th century

lóg n-enech

(Old Irish) honour-price

mana

(from Oceanic languages) magical power, strength

mandaturtuxucesi

(Georgian) chief constable, minister of internal affairs

mc’ignobartuxucesi

(Georgian) chief secretary, prime minister

mechnik

“sword-bearer”, court official, guard

mečurčletuxucesi

(Georgian) chief treasurer, minister of finance

medicatura

(Latin) medical expenses (in Frankish law)

mepe

(Georgian) king

Merilo Pravednoe

“Just Measure”, medieval Russian legal collection

332


mestnichestvo

appointment system in Muscovy Russia

mesto

place or rank within family and among families (see mestnichestvo)

mir

village community; peace (treaty)

modus vivendi

intermediate arrangement between opponents

msaxurtuxucesi

(Georgian) chief marshal, minister of the royal household

namestnik

representative, lieutenant, of prince

Naturalwirtschaft

(German) economy in which money plays a secondary role

nomocanon

(Greek) Byzantine collection of ecclesiastical and secular rules

novellae

new laws, in particular as fourth part of the Corpus Iuris Civilis

ognishchanin

“hearth-man”, steward or other high official of the prince in Kievan times

Ordá

Horde (Turkic), division of Mongol empire

orslage

(Middle Low German) hitting somebody on the ear

otchina

paternal heritage, patrimony (also votchina)

pace

“peace”, with all due respect to (Latin)

Pandectae

collection of excerpts of the classical authors of Roman jurisprudence, as the major segment of the Corpus Iuris Civilis; also known as Digesta

paterfamilias

(Latin) head of the patrilinear family in Roman law

patria potestas

(Latin) power of the paterfamilias over the members of his familia

petitio principii

(Latin) about the same as “begging the question”

pod”ezdnoi

messenger, courier (of prince), collector of fines

pogribbe

prison (Novgorod Skra, from Russ. pogreb)

poinè

wergeld, blood money (Homeric Greek)

pokon

law, statute

pokon virnyi

law concerning the vira

poliud’e

winter circuit of the prince, in which tribute was collected

popplen


posadnik

lieutenant (of prince); mayor (in Novgorod)

posadskie liudi

half-free townspeople in Muscovy Russia

potklete

storehouse (Novgorod Skra)

Pravda Iaroslavichei

the Pravda of Iaroslav’s sons

pravovoe gosudarstvo

law-governed state (translation of German Rechtsstaat)

Pravosudie metropolich’e Metropolitan’s Justice (medieval Russian legal collection) prigorod

“suburb”, subordinate town


333

principum placita

“what has pleased the ruler”, decisions of the emperor, one of the recognized sources of Roman law (Latin)

proezzhaia gramota

a laissez-passer, a document entitling the bearer to proezd (travelling through)

proximi

(Latin) close relatives

rachineburgi

lay participants in Frankish court procedure

Raskol

the great schism in the Russian church, following the reforms of Nikon in the second half of the 17th century

ratainyi

agricultural official of prince; plowland overseer

Razriadnyi Prikaz

government department in charge of keeping razriady

razriad(y)

mestnichestvo register

recte

(Latin) correctly, as it should be

rezana

monetary unit in Kievan Russia

riad(y)

contract, pact

rota

oath (in court procedure)

Russkaia Pravda

“Russian Law”, basic legislative monument of Kievan Russia

russkie stati

“Russian articles”, a series of provisions from the Zakon Sudnyi Liudem, found in some copies of the Russkaia Pravda

schevenisse


sel’skii starosta

agricultural official of the prince, field overseer

sisxli

(Georgian) blood (money), wergeld

Skra

law, statute (Low German); local German law in Novgorod

slovenin

inhabitant of Novgorod (in Russkaia Pravda)

smerdy

dependent peasants

solidus, -i

Frankish coinage

somervart

see lantvart

Sovet Gospod

Council of Lords (in Novgorod)

sparapet

(Armenian) commander-in-chief

starshinstvo

seniority (esp. among Russian princes)

stevene

(Middle Low German) assembly (Novgorod Skra)

stog

haystack

stove

(Middle Low German) dwellings (in Novgorod)

sud

court; rarely: law

sudebnik

law code

sverstnik(i)

person of same age, coeval

svod

court procedure (in Russkaia Pravda); collection

tartaros

(Greek) underworld

tat’ba

theft

334


terminus ante quem

(Latin) “time before which” (something has to be dated)

tiun

also tivun, tivunets; princely official, overseer, agent, steward, bailiff

troynisse


tsar’

tsar (from Latin caesar), emperor (the spelling “czar” does not make sense in any language); the tsar’s wife is the tsaritsa (translated into German as Zarin, which was then corrupted in several European languages as “tsarina” or “czarina”)

tysiatskii

“thousandman”, military commander (in Novgorod)

udel

portion or part (assigned to younger sons of princes)

udel’nye kniazhestva

apanage principalities (from udel)

uroki

laws, decrees

ustav

statute

vardapet

(Armenian) learned priest

veche

popular (urban) assembly

verding

medieval German coinage

verkhovnaia sobstvennost’

“supreme ownership”, roughly equivalent to “eminent domain”

verv’

rural territorial unit

vira

bloodwite, fine for homicide or bodily harm

virnik

collector of the vira

vis genitalis

(Latin) “genital force”, the life-perpetuating force permeating the gens

voevoda

military commander, general

Vogt

(German) official representing supreme ruler

volost’

governmental power; also “province” (esp. in Novgorod)

Vorstender

(Low Middle German) official in Novgorod Skra

votchina

see otchina

wakevart

see lantvart

wergeld

compensation to be paid by the killer to the killed person’s relatives

wintervart

see lantvart

zakon russkii

“Russian Law”, the customary law of pre-Christian Russia

Zemskii Sobor

Land Council

zhit’i liudi

prominent burghers (esp. in Novgorod), also zhitye liudi, as opposed to lower class burghers (chernye liudi)

About the Author Ferdinand Feldbrugge is Professor Emeritus of East European Law at Leiden University. From 1973 to 1998, he was director of the Institute of East European Law and Russian Studies and the editor of the Law in Eastern Europe series and of the Review of Central and East European Law. He served as Special Advisor Soviet and East European Affairs (“Sovietologist-in Residence”) to the Secretary-General of NATO from 1987 to 1989 and as President of the International Council for Central and East European Studies from 1995 to 2000.

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