Canon Law in Medieval Russia: the Kormchaia Kniga As a Source of Law
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Canon Law in Medieval Russia: The Kormchaia kniga as a Source of Law Rosanne Gretchen Mulcahy A thesis submitted in partial hilfiUment of a degree of Master of Pliilosophy at the University of London University College London December 2001 ProQuest Number: 10014732 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. uest. ProQuest 10014732 Published by ProQuest LLC(2016). Copyright of the Dissertation is held by the Author. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. Microform Edition © ProQuest LLC. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 CONTENTS Title Page 1 Abstract 2 Contents 3 Introduction 4 Part I. An Examination of Canon Law Collections and the Russian Kormchaia kniga as a Means to Determine How Russia Compares with other Models o f Medieval Christian Societies 1. Eastern and Western canonical collections and their significance in systems of canon law with reference to Roman Law 25 2. The History of the Kormchaia biiga 54 Part II An Examination of The Role of Byzantine Civil Ecclesiastical Legislation Cofitained in the Kormchaia kniga, the Russian Princely Statues and Russian Immunity Charters as they Supported a Constitutional Relationship Between Church and State in Russia 3. Byzantine Law in Chapter 42 of the Kormchaia kniga: The Collection o f Eighty-Seven Chapters As it Related to the Special Privileges of the Russian Church 75 4. Ecclesiastical Immunity as evidence confirming the juridical authority of the Kormchaia: the Princely Statutes and Russian Immunity Charters 100 Part III, An Examination o f the Kormchaia as a Source o f Law: Byzantine Statutes on Russian Dowry and Testamentary Practices 5. Russian Dowry Practices and The Byzantine Law on Dowry as Found in the Kormchaia kniga: According to the operation of Dowry in Roman Law 134 6. Aspects of Russian Inheritance Law - Women as Testamentary Heirs and their Life-Estates 169 Conclusion 198 Appendix 200 Bibliography 252 Canon Law in Medieval Russia: The Kormchaia kniga as a Source of Law Rosanne Gretchen Mulcahy Historical studies of the Russian medieval period have traditionally overlooked the Kormchaia Jmiga as a source of law. The Kormchaia kniga, a collection of ecclesiastical canons and Byzantine civil law dating from the tenth century, served as a central source of law in Russia. Contained within the Kormchaia was the constitutional-legal basis for the relationship between church and state - that is, for the division between the temporal and ecclesiastical spheres of authority (regnum and sacerdotium). In addition, the Kormchaia served as the primary source of Russian property law. Part I examines the Kormchaia kniga and other canonical collections with the purpose to determine how the Russian form of state compared with other models of medieval Christian societies. Chapter 1 discusses Western and Byzantine forms of canonical collections and Byzantine legal collections as a means to demonstrate what kind of canonical legal system existed in Russia. Chapter 2 examines the manuscript history and sources of texts comprising the Kormchaia kniga, revising and adding to earlier work. Part II examines how the Kormchaia provided the legal framework in Russia for a constitutional relationship between church and state based on the Byzantine model. Chapter 3 examines the ecclesiastical legislation of the Emperor Justinian governing ecclesiastical property and jurisdiction, which comprised Chapter 42 of the Kormchaia. It discusses how these statutes imderpinned the constitutional relationship between church and state in Russia. Chapter 4 discusses the role of immunities in this constitution, and how they were legally supported by the Kormchaia. Part III examines the Kormchaia as a source of civil law in matters of property law - in particular: dowry, inheritance and life-estates. Using Russian wills, donation charters, dowiy^ agreements, and betrothal contracts, it is demonstrated in Chapters 5 and 6 that operation of these legal transactions was governed by the Byzantine law contained in the Kormchaia. Introduction: Canon Law in Russia - Remarks on the R ole of THE K o r m c h a ia in the Russian System of Canon Law along w ith A CRITICISM OF S o u r c e s I. Remarks on the Role o f the «Kormchaia kniga» in the Russian Canon Law System The Russian canonical collection, known in the Slavonic as the Kormchaia kniga, was a canonical compilation based on the Byzantine nomokanon. The original canonical collection upon which the later Russian MS family of the Kormchaia kniga was based was transmitted to Kievan Rus’ around the time of its conversion to Christianity in the tenth century. The Kormchaia kniga comprised ecclesiastical canons which were chi'onologically arranged and abbreviated collections of Byzantine civil law. The Kormchaia may, for tliis reason, be viewed as both the central Russian canonical collection and central Russian civil legal collection of the medieval period. The Kormchaia kniga provided Cliristian Russia with both a civil and ecclesiastical code of laws. The Kormchaia kniga contained all that was necessary for the foundation of and operation of Russian Christian medieval society. Up to the time of Christianization in the late tenth century, Russia had been governed by customary law much like other European societies of the pre-Christian period. During the Kievan period and the majority of the Muscovite period (ninth - seventeenth centuries), Russian civil law was in type customary law supplemented by small civil codes, the Sudebniki, wliich were mainly administrative rather than substantive law. The same could be said for individual decrees (ukazy) issued by the Russian Grand Princes and T sars during tliis period, of which few can be described as containing substantive law. By and large, legislation of the Kievan and Muscovite periods rarely conflicted with, and certainly rarely derogated from, the law of the Kormchaia. Legislation in Russia, it would appear, was enacted for the purpose to govern where other law or custom was silent, or else to augment what law existed in the Kormchaia so as to better fit local conditions. A cursory examination of the legal codes of the Russian medieval period reveals that the civil authority rarely legislated against the laws contained in the Kormchaia, nor attempted to extend its legislative authority beyond that prescribed by the Kormchaia. Throughout the Kievan and Muscovite periods, during times of great societal upheaval, the Kormchaia was both appealed to and consulted in order to settle disputes. The usual result was that the canons and civil enactments of the Kormchaia were deferred to. To give an example, the dispute of the sixteenth century concerning monastic landholding was won by those who demonstrated that the canons and Byzantine civil laws of the Kormchaia supported monastic landownership. Through an assiduous reading of the nomokanon, the clergy in the end had their privileges upheld. In this example one may see that not only was the Kormchaia in such matters considered a guide to supplement Russian law, but was an actual valid source of law in Russia. It was, however, not until the promulgation of the civil code the Sobornoe Ulozhenie (1649) of Tsar Aleksei Mikhailovich (1645-1676) that the legal privileges of the Church were first abrogated.^ Knowledge of the Kormchaia kniga is necessary to any understanding of early Russian civil or ecclesiastical law, because of its great influence on these two spheres of legal jurisdiction. Although there is a general acknowledgement of the importance and influence of the Kormchaia bîiga on the legal processes of early and medieval Russia, there are relatively few studies of Russian canon law with regard to this, and most of these were completed in the nineteenth century. More broadly, there have also been a number of examinations of the juridical value of the Kormchaia kniga in Russia and these studies are fi-om the nineteenth century too, completed mainly by Russian canon law scholars - during the period of revival of canon law studies in Russia. There have been a few 1 This point can be debated. I speak here of the establishment of the Monastery chancellery {monastyrskiiprikaz), an official government office which was created to oversee various aspects of the Church, especially finances. I refer here also to the seventeenth century legal restrictions on the seigniorial privileges of church landholders which had previously accorded them complete jurisdiction over secular persons living on ecclesiastical lands. On tliese restrictions see the Ulozhenie Chapters 12 &13: Muscovite Law Code (Ulozhenie) o f1649, trans. and ed. Richard Hellie (California, 1988)[hereafter Ulozhenie, Hellie]. This privilege, though, was barely supported in canon law and was, rather, Russian tradition following the Byzantine model. But because this was the first real attempt, however small, of the civil authority at placing restrictions on the church, tlie action was perceived at the time as a larger transgression of traditional church- state legal relations than such actions might have been perceived in another society. It actually was not until the establisliment of the Holy Synod under Peter the Great ( 1672-1725) in 1721, that the legal and constitutional operation of the Kormchaia was completely abrogated. On tlie monastyrskii prikaz, see M. Gorchakov, Monastyrskii prikaz (1649-1725g), opyt istoriko-iuridicheskago izsledovaniia (St. Petersburg, 1868). subsequent studies on the Kormchaia, most notably the works of Shchapov and Zhuzliek/ Many studies concerned with civil law in Russia, while touching on the Kormchaia, have tended to exclude a full discussion of the influence of canon law in Russia.