Table Of ContentTHE 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
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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
