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Legal-Property Relations of the Spouses in the Albanian Customary Law

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Legal-Property Relations of the Spouses in the Albanian Customary Law International Journal of Scientific & Engineering Research Volume 4, Issue3, March-2013 1 ISSN 2229-5518 Legal-property relations of the spouses in the Albanian Customary law Emine Zendeli Introduction ownership). 1 while on the other hand regulates The Albanian customary law represents private ownership category with all the features the set of unwritten rules, which are set ad hoc by that follow (eg property rights are not prescribed) the courts of elders, or assemblies, and aimed at 2 the regulation of social relations in various fields Albanian customary law norms are of life. The implementation of these rules summarized in the Canons, such as: The Canon (norms), was provided by the force of tradition, of Lek Dukagjin Laberia Canon, Arbëria Canon patriarchal authority and social awareness of (Scanderbeg), Luma Canon, Mountains Canon people's self-government bodies. etc.. despite the fact that statutes have operated in _________________________________ different time and space, so eg Canon Laberia e-mail:[email protected] acted in XI century, in the southwest of the PhD. Emine Zendeli Albanian Kanun of Lek Dukagjin, and he Faculty of Law, South East European University, Tetovo, Ilindenska nn 1200, Skanderbeg in the nineteenth century in North Macedonien, Highlands, however, have many identical norms, www.seeu.edu.mk Tel:++389 44 356 141 which speaks for a common ground, as integral component of joint bed of Albanian Kanun. 3 In all of the aforementioned statutes, among others, contained also norms regulating The Albanian customary law was created property relations of spouses, which, evidently by people over the centuries, not by a particular noticed the impact of religious ideology, Catholic, person, or a special legislative boy. Orthodox, and later the Muslims. 4 The Albanian customary law was born in In provinces where operatied norms of the late stage of the dissolution of the tribal order Albanian customary law, the basic unit of tribal and the birth of private property. It was a society was patriarchal family. In this context, the reflection of the material conditions of life in human consciousness, and therefore had a dual 1Gjeçovi Shtjefën, Kanuni i Lekë Dukagjinit me character. On the one hand it preserves the parathënie të Gjergj Fishtës, Shkodër, 1993, article 232-235. Hereinafter referred to as (KLD) characteristic of the old tribal order (joint 2Ibidem, article 221 3Elezi Ismet, Kanuni i Labërisë, Tiranë, 2006, fq.26 4Elezi Ismet, Njohuri për të drejtën zakonore mbarëshqiptare, Prishtinë, 2003, fq. 27 IJSER © 2013 http://www.ijser.org International Journal of Scientific & Engineering Research Volume 4, Issue3, March-2013 2 ISSN 2229-5518 property relations of spouses, should be looked exchange, etc.) of common ownership was on the into the complex property relations in the master of the house (pattern familijasi). However, patriarchal family.5 if it came to the disposal of immovable property The Albanian customary law sanctioned (land, buildings) comprising joint ownership, the private ownership of movable and immovable owner of the house had to obtain the consent of property (land, houses, livestock, working tools the other men of the family. The right of disposal etc..). Private ownership forms in Albanian of the master of the house with items of common patriarchal family was common ownership6, ownership, was limited when it came to gifts although, as we shall see later this type of and, selemin'', which women brought into the ownership does not correspond to the notion of family and as such they belonged exclusively to truth (not legal nature and content) of joint them. 8 ownership. The Albanian customary law does Because of the dominance of joint not recognize exclusive ownership, in addition, a ownership, the sphere of personal property was form of personal property which consisted of very close, and as a result the institution of robes of the body, and the dowry that women inheritance was undeveloped. So, if a member brought into the conjugal family, as well as died a family member the heritage property was weapons, watches neclaces, or any other item not open and not shared, because the decedent that belonged to one of men of the family, out of were the heirs of a family member, in line with what was considered the property of the joint this KLD said: "not to swamp the nieces family. 7 perseveringly of the late uncle." 9 Members of joint ownership over movable In the Albanian customary law the wife and immovable property, which constituted the had limited capacity of action, which she got in wealth of the patriarchal family were Albanian marriage. 10 Capacity of women's action was men aged 15 years and up. Adult males had the limited into the sphere of the use of personal right to administer, namely, the right of use and items, which in the northern part was consisted exploitation of joint family owned items, while of mërqiri, selemi, gifts, etc., while in the south of the exclusive right of disposition (sale, donation, the country consisted of items that a woman brought as dowry in the husband's family. 11 5Luarasi Aleks, Studime për të drejtën zakonore 1. Property relationships of spouses shqiptare, 1 Marrëdhëniet familjare, Tiranë, 2007, In the Albanian customary law, property fq.146 6The notion, common ownership means relations wives were implicated in property ownership of two or more entities on a single item, where their parts are not defined as ideally as real, ie, the joint property owners (in our case 8Ibidem, article 1354-1359 spouses)have the idea that it is part of their 9KLD, article 91, section 1.a common ownership, as long as it is not shared 10Elezi Ismet, Kanuni i Labërisë, Tiranë , 2006, 7Ilia Frano, Kanuni i Skanderbegut, Shkodër, article 344 1993, chapter 1354-1355 11Ibidem, article 280 IJSER © 2013 http://www.ijser.org International Journal of Scientific & Engineering Research Volume 4, Issue3, March-2013 3 ISSN 2229-5518 relations in large patriarchal family, 12 and were to the wife. This inequality is clearly expressed in actualized as property marriage relations in case the definition of marriage in the Kanun of Lek of the creation of small family (by the Crown), Dukagjin: "To be married according to the Canon consisting of spouses and their offspring , which means to create a home, add one more slave to to was created in certain cases with the Canon. The it, give a hand to the family and give birth to Laberia Canon allowed the creation of small children".15 From the wording of the Canon family when the man refused to divorce his wife, provision, it seems that marriage is primarily even though he wanted his family, or in cases aimed at the creation of the family (social when the son of the family created problems function), „become a home“, adding labor internally or with third persons. In such (economic function), and the birth of children situations he would divorce with his wife and (biological function). The Quote, slave'' means children and would become a home himself. 13 that the woman would be placed under the The essential difference between the large and authority of the master of the house (Pater the small family lies not simply on the number of familijasit), respectively, under the authority of members, although this is a very important her husband (Manus). element, but in the nature of legal relations that According to the Albanian customary law arose between family members, primarily in the marriage was preceded by the institution of property and legal relations. engagement or promise of marriage, which also Large family is based on joint ownership produced property and legal effects. Upon of family men, while small family on private conclusion of the engagement of the individual owner of the house, which enjoys bridegroom's house would send to the girl's absolute power over his wife and children. 14 house the „shej“. The Shej consisted of the In the Albanian customary law, property engagement ring, tissue and money. Sheji, and legal position of spouses as well as their respectively, and scarf rings had the sense of the personal and legal position was inequal. The man confirmation of the conclusion of the was always more in favorable position in relation engagement, while money was an award given to the family of the fiancée, and usually designated by its parents. This cash meant buying price and 12Large patriarchal family is a family that consists of many brothers with their wives and children was not included in the amount of money, which and several generations, under the guidance of as a rule, was given to prepare parents fiancee the master of the house (Pater familijas). See: 16 Valbona Begolli, the position of women in dowry. In case of the death of her fiancé, she Kosovo with a special emphasis on customary fiancée parents returned to he fiance's parents the law, Pristina 1984, p. 41 13Elezi Ismet, Kanuni i Labërisë, Tiranë , 2006, article 125, al. 6: 14 Valbona Begolli, The position of women in 15KLD, article 28 Kosovo with a special emphasis on customary 16Ilia, Frano, Kanuni i Skanderbegut, Shkodër, law, Pristina 1984, p. 41 1993, article 187-195 IJSER © 2013 http://www.ijser.org International Journal of Scientific & Engineering Research Volume 4, Issue3, March-2013 4 ISSN 2229-5518 ring, scarf, half of the shej money and all the without children, the dowry returned to her money received for dowry. In case of the death of parents. 20 the fiancee, her parents return the ring, scarf, With separation from big family and dowry money, but not sheji money. 17 creation of small family, the so-called family (the By Albanian customary law marriage was crown), the spouses bring and create material religious coronation.
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