The Growth of the Law in Medieval Russia PDF
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THE GROWTH OF THE LAW IN MEDIEVAL RUSSIA The Growth of the Law in Medieval Russia DANIEL H. KAISER ~ PRINCETON UNIVERSITY PRESS Copyright ©1980 by Princeton University Press Published by Princeton University Press, Princeton, New Jersey In the United Kingdom: Princeton University Press, Guildford, Surrey All Rights Reserved Library of Congress Cataloging in Publication Data will be found on the last printed page of this book This book has been composed in VIP Sabon Clothbound editions of Princeton University Press books are printed on acid-free paper, and binding materials are chosen for strength and durability. Printed in the United States of America by Princeton University Press, Princeton, New Jersey To Jill CONTENTS PREFACE ix CHAPTER 1 Notions of Law and Legal Development 3 CHAPTER 2 Sources of the Law 18 KORMCHAIA KNIGA 19 MERILO PRAVEDNOE 23 MISCELLANIES 25 THE RUSSKAIA PRAVDA AND ITS HISTORIOGRAPHY 29 REGIONAL LEGAL TEXTS 37 MUSCOVITELAW 39 THE RUSSKAIA PRAVDA AND THE LAW IN MEDIEVAL RUSSIA 41 ZAKON SUDNYI LIUDEM 46 PRINCELY STATUTES 50 SOURCES OF MEDIEVAL RUSSIAN LAW 60 CHAPTER 3 Sanctions and the Law 62 HOMICIDE 63 ASSAULT 80 THEFT AND ROBBERY 82 CONCLUSIONS 90 CHAPTER 4 Development of Judicial Personnel 94 THE ORIGINS OF JUDICIAL PERSONNEL IN RUSSIA 96 JUDICIAL PERSONNEL IN NOVGOROD AND PSKOV 101 MUSCOVITE JUDICIAL PERSONNEL 114 JUDICIAL PERSONNEL AND THE NEW LEGAL ORDER 125 CHAPTER 5 Patterns of Evidence 127 TESTIMONY 128 ORDEALS 148 PHYSICAL EVIDENCE 152 WRITTEN EVIDENCE 153 EVIDENCE AND THE LAW 163 CHAPTER 6 Medieval Russian Society and Legal Change 164 THE ROLE OF THE CHURCH IN RUSSIAN LEGAL CHANGE 165 SOCIETY AND LEGAL CHANGE 174 LEGAL CHANGE AND MEDIEVAL RUSSIA 186 CONTENTS viii 189 ABBREVIATIONS 190 NOTES GLOSSARY 269 275 SOURCES CITED 305 INDEX PREFACE Several observations are in order before introducing the reader to this book's argument. We may begin with definitions. This study is titled The Growth of the Law in Medieval Russia, and that alone may be enough to distress some of my colleagues. Please note that I have not labeled it The Evolution of the Law. I have no confidence that the law, or any other facet of culture, must move inevitably along some progressive continuum. On the contrary, anyone who has read the literature on sanctions must at least doubt the wisdom of contemporary notions of deterrence and criminal law. On the other hand, it seems to me that the law does grow as the informal constraints of traditional society recede, for whatever reason those constraints recede. The law's growth is not uniformly beneficial—in fact it need not be uniform at all. But, in general, larger societies with a more heterogeneous makeup demand a larger body of enun ciated law for effective regulation of behavior. Scholars interested in modernization theory will have noticed that I introduced into the preceding paragraph a term now slighdy out of vogue. In recent years the whole idea of traditionalism has been much discussed, and I confess to having stumbled upon the debate unwittingly. Furthermore, I would very much like to stay out of it altogether. Nevertheless, I have employed the word and idea of traditionalism in these pages, and I offer here a few words in its defense. What I intend by tradition is that tendency "to accept the givenness of some past event, order or figure . . . as the major focus" of a society's collective identity, as S. N. Eisenstadt puts it. I realize that the simplicity of my construct hides the rich diversity of cultures. Indeed, what strikes my eye is precisely the fact that some societies feel no need to elaborate in detail their norms or the means for ensuring socially acceptable behavior. Consequently, I find very palatable Edward Shils's suggestion that we conceive of tradition as "society's reservoir of behavior and symbols." In medieval Russia it was that reservoir of symbols which resisted the introduction of new legal norms, not necessarily because the old were superior to the new, but simply because the old norms were old norms. Again I hasten to assure the reader that I do not intend to denote or connote by "tradition" some lesser state of civilization. Inas much as I subscribe to a pessimistic view of man, it is difficult for me to suppose that man is necessarily building over the course of time a qualitatively better society. As in most things, notions of X PREFACE quality vary with time and place, and I do not here propose a unilinear, infinite progression. That having been said, I find no per suasive reason to abandon the idea of traditionalism. Still another aspect of this book's title deserves a few words of explanation. Western historians are well accustomed to the term medieval, by which they mean that period which separated Europe's rediscovery of classical culture from classical culture itself. Recent scholarship continues to expand our comprehension of exacdy how much of the classical heritage was known and valued in medieval Europe, but the basic utility of the term medieval re mains manifest. Russia represents a different situation. At no time before the modern age did Russia receive any significant portion of the classical heritage, so it is inaccurate to perceive there a renais sance of classical learning, just as it is inaccurate to imagine that the classics penetrated Russia before the Slavs settled on the East Euro pean plain. For Russia there never was a "Middle Age" which sepa rated two worlds inundated in classical learning. Nevertheless, I have labeled as medieval the thirteenth, four teenth, and fifteenth centuries, in part simply because the word it self has wide currency among historians who are not alerted to the peculiarities of Russia's situation. It is my hope that this book will be of interest to historians of medieval Europe, and I did not wish to exclude them from the list of potential readers by offering them some scholastically accurate, but foreign title. Likewise I have hopes that scholars of other disciplines might find here something instructive, and I am anxious to hear their comments. My colleagues might have preferred that I title my book The Growth of the Law in Rus', and I myself should have found noth ing objectionable in this. Rus' is the term by which medieval Rus sian society knew itself, even if in a slightly confused way. At a very early point Rus' signified especially the southern territories sur rounding the ancient capital city of Kiev. Later the term was grafted onto the northeastern territories as Old Rus'; the latter term, how ever, causes some difficulty. In Russian the same word denotes Old Rus' and Old Russian. Most folk will not be aware of any cause for concern, but my colleagues in Russian studies are sensitive to the history of Great Russian domination over other ethnic groupings on the East European plain. The translation Old Russian connotes that the culture of Old Rus' was necessarily Russian, when in fact it had several components of different ethnic origins, as I point out in chapter 6. I am aware of the scholarly issue at stake here, but have decided
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