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Category: History

Genesis of sense of justice: formation of the judicial system in the Old Russian state

v. A. Glukhov


Specific socio-political and economic conditions at any given stage of social development by all means find reflection in various forms of public consciousness, the dominating ideology, social sciences, etc.

The history of the domestic state and the right as the science historical and theoretical, studying emergence and development of types and forms of the state and the right of the people of Russia for their historical lifetime, to a degree depends on the called conditions. So, domination Bolshevist (and then communistic) ideologies found direct reflection, first, in structure of the course "History of the Domestic State and Right" as subject matter: the number of the allotted hours on studying history from the moment of formation of the Old Russian state and the right till October, 1917 was practically equated to number of hours allotted on studying history of state and law of the Soviet period.

Secondly, it was reflected also in the questions which are subject to study. So, the victory of Bolsheviks in the first years of the Soviet power assumed sharply negative attitude to all other political parties, blocks and the directions of postrevolutionary Russia, and proceeding from it, maybe, and assessment of their role not absolutely adequate to reality and values in historical process. Disestablishment and mass atheistic promotion logically caused infringement of a role and value of orthodox church in formation and development Old Russian, and then and Russian, the states.

The objectivity of studying discipline demands inclusion of a number of the topical issues in it connected with acceptance by Russia hristi-

History and present, No. 2, September 2009 102-118

anstvo. Together with new religion the Byzantine acts containing the fundamental bases of the church-Byzantine right based first of all on the Code of laws of Justinian come to pagan Russia. Soon behind their distribution the institute of church courts having quite broad competence begins to take root: for certain illegal acts (including criminal offenses) practically all estates of the Old Russian state are subject to church court. And if princely judicial practice is based on norms of the Russian Truth, then the metropolitan and bishops are guided by production of court first of all by Helmsmen books (as result of reception of the Byzantine, to be exact, ancient Roman right) and church Charters of the first Russian-Christian princes (as result of independent church and legislative activity).

However so far in historical and legal science the place, a role and value of the Byzantine canon law in the system of the Old Russian right, the mechanism of production of church court, types of punishments and process of their realization are up to the end not opened. In literature the possible contradiction in understanding of the purpose and types of punishment is not reflected: if the Russian However, in the approved opinion, evolutionarily replaces blood feud (and in essence - punishment by death and mutilation) various types of fines, then the Roman right for separate types of crime as punishments recognizes both the first, and the second. Also process of the execution of the punishment imposed by church court is not clear. Also the question of existence (or absence) "sacred inquisition" in the history of the Russian state, quite widespread in medieval Western Europe remains unaddressed.

The historical and legal approach which developed during the Soviet period in a research of origin and development of the Old Russian right is concentrated generally on formation of norms of secular law. Finds the further development the model (which is quite thoroughly developed in the 19th century by F.M. Vladimirsky-Budanov [1995]), based on three consistently formed sources of law: custom, judicial practice of the Russian princes of the early period and statutory act. According to customs princely judicial practice which in turn was implemented

created a certain judicial precedent that and found further reflection in the statutory act - the Russian Truth. And a logical conclusion of this chain was the statement of the Old Russian right as the rights "usual" (that is based on custom). The considered model is a little unilateral as does not consider one essential factor which leads to loss of the whole link of a chain: Russia initial - Russia pagan, and, apparently, pagan customs could not be transformed to norms of the Russian Truth fully. Such link between princely judicial practice and the written statutory act (Russian Truth) were the norms of the Byzantine ecclesiastical law "borrowed" from Tsargrad by Kievan Rus' after adoption of Christianity. Certainly, the speech cannot go about full "loan", as well as about full replacement, paganism Christianity from Russia (to this day in the people drevneyazychesky and orthodox holidays - Christmas and Maslenitsa, Easter and Ivan Kupala, etc. get on). And therefore the designation Vladimirskim-Budanovym of this loan as receptions of the Byzantine right is quite successful. Russia retseptirovat, that is partially transferred and adapted norms of the Byzantine ecclesiastical law to the pagan customs. At the same time the customs contradicting the main postulates of Christianity began to be considered as illegal and were gradually eliminated.

The historical and legal science quite definitely designates the Byzantine sources of a retseptirovaniye - the Nomocanon, the Eclogue, Pro-hiron and result of reception in Russia - Kormchuyu the book. At the same time the point of view according to which the first link of carrying out in the Russian life of legal views of Byzantium was Ioann Skholastik's Nomocanon (collection of church and civil laws and resolutions of emperors on church) to which text the Russian copyists began to add gradually and other Byzantine regulations based on processing of the collection of laws of Justinian made in the first half of the 6th century became the most widespread: 1) The eclogue ("the chosen laws") to them - the peratora-iconoclast Lev Isavryanin (meets Lev Isavriysky, Isavr) and Konstantin Kopronim in which influence of Christianity - legal hollow was fully shown

zheniye (especially norms of matrimonial law) were proved by bible texts. Time of the edition of the Eclogue in different sources variously: 726 g; 739-741; 2) Prokhiron ("Gradsky law"; Manual book of laws) emperor Vasily I (Macedonian) (870878; 879 g) it was published instead of cancelled (first of all for political reasons) Eclogues. In Russia these acts received the title of the Kormchy book.

However studying written sources of the last centuries allows to expand this vision several. So, the metropolitan Makari (1995), in the multivolume work "History of the Russian Church" considering an initial church statute in Russia, pays attention that for the period of adoption of Christianity by Russia in Byzantium there was already a full arch of a church statute which included including Nomocanons. At the same time the arch included as the above-mentioned Nomocanon made in the 6th century by the patriarch Ioann Skholastik (565578) and the Nomocanon made in later time (in 883 g) other Tsargrad patriarch - Photius. Also does not raise any doubts that Russia, retseptiruya the Byzantine tserkovnonormativny acts, used the Nomocanon and 6th century, and 9th century. The structure of both documents was identical: they consisted of two parts - canons (kavyuv) and legalizations (гоцо^). Canons represented historically developed cult and church rules and provisions, and legalizations (or decrees) were the civil acts on church affairs based first of all on the Code of laws of Justinian.

Without doubting full loan of the first part of Nomocanons by Russia, Makari asks a question: "... whether the educator of Russia equal to the apostles accepted (the prince Vladimir. - Century of G.) together with church rules and civil resolutions of the Greek sovereigns on advantage of Church which were borrowed mainly from Yustinianov's law and made the second part of Nomocanons of Skholastikov and Fotiyev?" He also answers as follows: "Wise advisers, it is necessary to believe, explained to the prince that the Greek-Roman laws. it would be useless to accept in all integrity for Russia and that it is better to make on the basis of the Nomocanon of them only extraction and to add partly

this extraction according to requirements... people of Russian" (Makari 1995: 83). Thus, according to the metropolitan, there was also a Church charter of the prince Vladimir which approved church jurisdiction.

However the famous Russian historian of the end of XVIII - the beginning of the 19th century N.M. Karamzin denied the fact of existence of this charter, arguing as follows: "This charter is false - and here the proof: there Vladimir writes that the patriarch Photius gave him the first metropolitan Leon; and Photius died in 80 years prior to this grand duke" (Karamzin 2000: 158-159).

The point of view of N.M. Karamzin in the second half of the 19th century professor of the Moscow spiritual academy E.E. Golubinsky supported and gave its own justification (1997: 399-405), which denied not only author's origin of the Charter of the prince Vladimir, but the following Charter of the prince Yaroslav behind it. At the same time E.E. Go-lubinsky put forward a row, It should be noted, the arguments which are not deprived of a certain logic denying authenticity of origin of these charters. According to E.E. Golubinsky, the Charter could not be written by the prince Vladimir on a number of circumstances from which the following is of a certain cognitive interest:

1) if the Charter was original, then taking into account its value would remain in more concrete, brought closer to author's look, but not in the editions remade in later time;
2) the tithe was given not to only one church of the Virgin as it is designated in the Charter, and to all dioceses of Kievan Rus'; 3) all lists of the Charter grant to bishops the right of management of hospitals, hotels and strannopriyemnitsa who at that time in Russia were not yet. Concerning the last argument the historian of the beginning of the 20th century A.E. Presnyakov wrote the following: "The mention of charitable institutions could be simple transfer of the Greek formula and the Greek practice mattering for clergy in Russia of the habitual program, the action plan" (Presnyakov 1993: 490).

Considering the Charter of the prince Yaroslav, E.E. Golubinsky argued as follows: ". if Vladimir had intention to write the charter, then for what reason he did not make it, and charged orally or in writing to Yaroslav whom he did not designate to the pre-at all

emnik? And why Yaroslav would execute will of the father not at the beginning of board but only under its end?" And answered own question as follows: ".sostavitel did not know it about existence of the imaginary charter of Vladimir."

Golubinsky concluded: possibly, it is necessary to think that charters were composed in Novgorod as in Novgorod the western church orders could become known at first from the Catholic priests who were there changed clothes by overseas merchants that happened no later than the second half of the 12th century, and then from the Germans, in the second half of the 12th century who lodged in Livonia, next to the Novgorod region, and in the next to the Novgorod diocese in 1219 the Catholic diocese was open.

According to other, not less visible, scientific XK-XX of centuries - V.O. Klyuchevsky (2000), the Russian Truth was also result of reception (in combination with the Law Russian) and initially had action only in the sphere of church jurisdiction. Need for emergence of the written statutory act was also caused by insufficiency of customs and judicial practice when maintaining court. "So, - Klyuchevsky concluded, - the Russian Truth is a monument to actually Old Russian codification, but not the Old Russian legislation". It is to some extent close

To V.O. Klyuchevsky and S.F. Platonov's position (1917) which noted: "As Russia accepted belief from Byzantium, all new that came together with belief, had the Byzantine character and served as the conductor of the Byzantine influence on Russia". But the written statutory act intended for production of church court, Platonov considered not the Russian Truth, but the special collection "laws of the Nomocanon which received in Russia in the Bulgarian translation the title of the Kormchy book" that, apparently, is true more.

So, we will try to understand it. The prince Vladimir Svyatoslavovich, Svyatoslav's son and Igor Ryurikovich's grandson, is on the Kiev throne from 980 g on 1015. To the 988th Russia, to be exact, the population of the city of Kiev, accepts Orthodoxy. Thus, it is theoretically possible to assume, as the Charter would have to designate the existence in X-X! centuries. But its first lists belong to HS of century. Moreover, metropolitan Makari (1995: 84) allocated

three of its editions: short, average and extensive, noting that "short three lists are known to us: No. 1 according to the chronicle made as guess, at the beginning of HS of century; No. 2 across Kormchey 1493; No. 3 on Kormchy 15th or 16th century. All these three lists have among themselves small distinction. Four lists are known to average (edition): No. 1 across Kormchey copied from Kormchy 13th century (1286); No. 2 on the addition made to the same Kormchy in the 16th century: both are similar between themselves, except some expressions and the fact that in the last there are no several initial lines; No. 3 on Kormchy 15th or 16th century; No. 4 on Kormchy 16th or 17th century: differing from two first enough, are similar between themselves almost to a letter. At last, seven lists are known to extensive edition: No. 1 on Kormchy 13th century (apprx. 1280); No. 2 on Kormchy 16th century; No. 3 according to the chronicle of the 15th century; No. 4 according to the Collection of the 16th century; No. 5 on Kormchy 16th century; No. 6 and No. 7 on Helmsmen of the 17th century. All these lists differ between themselves with small raznorechiya, except the second.

There is, however, one more known list which makes itself(himself) the fourth, extensive edition of the charter of Vladimirov, but as this list, according to its syllable and the contents, undoubtedly, is made in the 17th century at patriarchs again and there is no more as any, florid and in places an ugly distribution of what contains in lists of extensive edition, without stopping on it, we will be limited to consideration only of the three first editions from which everyone, at least one of the lists, goes back to the XIII century, and we will show their general structure and contents, then their features and differences, at last, we will express the opinion on their relative advantage".

V. Tsypin in the work "Ecclesiastical law" (1996), considering the matter, comes to a conclusion that it was solved in 1926 by S.V. Yushkov who on the basis of the analysis of the texts of the Charter published in 1915 by N. Beneshevich put forward the point of view which gained universal scientific recognition: "At the heart of the Charter... the diploma about allocation of tithe of church of the Virgin in 995-996 which was processed into the first Charter at the beginning of the 11th century (till 1011) in connection with establishment of episcopal departments, distribution at them church tithe and establishment of church jurisdiction lies. The charter continued to develop and develop in Х^ХП centuries together with strengthening and expansion of the church organization. Lists of church courts and tserkov-were introduced in it

ny people. The archetypic text which is the cornerstone of the existing editions developed in the middle or the second half of the 12th century"

Last centuries did not keep to us original written texts of those far times, and each offered point of view is only the scientific assumption which is not giving objective knowledge of the matter. Were in the past and remain in the present as supporters (the metropolitan Makari [Bulgakov], V.A. Nevolin, V.A. Rogov

>, etc.), and opponents (M.N. Karamzin, E.E. Golubinsky, N.S. Suvorov, etc.) the fact of existence of the Church charter of the prince Vladimir. Attempts to find some compromise solution were also made. So, V. Tsypin in the above-mentioned work as the compromise point of view cites A.S. Pavlov: "Written monuments to antiquity can be original in the material relation and not original in formal. That is they may contain the legal norms which are really belonging to those legislative authorities to which attributes their this monument, but the most written statement of these norms can be business of other hand, modern and the latest. This monument (Charter of book of Vladimir), undoubtedly, was formed from private and, most likely, records occurring at different times about original orders of St. Vladimir for Church. Some of these records, in what courts and people church are estimated it is necessary to think, were made at Vladimir or soon after him. It is proved by their language".

But anyway, the church court made by the metropolitan or bishops to what we find confirmation and at S.F. Platonov also begins to work in the Old Russian state with adoption of Christianity along with princely (secular) court (Vladimirsky-Budanov 1995): "The metropolitan and in general clergy operated and judged the people subordinated to them...", and at N.M. Karamzin (In the same place): "There is no doubt that the clergy Russian in the first times of Christianity solved not only church, but also many civil cases which belonged to conscience or moral rules of new Vera". And documentary fixing of church court in structure Old Russian state

the mechanism, Church charters of princes Vladimir and Yaroslav were reached us.

In the Charter the prince Vladimir establishes: ". look [c] in the Greek nomakan [o] at N also [I] am shaved in him, it does not befit Yuzha these tyazh and vessels judge to the prince, neither boyars, nor his judges", and rules: "to the .neena neither my children, nor my vnution, nor my sort in people tse-rokovnyya in all courts go.... and who will enter... court with that to me before god, and to the metropolitan of a proklinata his collecting".

Earlier given editions of the Charter of the prince Vladimir, defining acts, jurisdictional to church court, progressively they are expanded. So, according to Makari if in general to crimes, jurisdictional churches, affairs against belief and business family were referred, then their specification in short, average and extensive editions is various. In lists of average edition against belief were carried to crimes: sacrilege, robbery of dead bodies, damage of graves, damage of walls church, introduction or entering of animals into church, and to crimes in the brachnosemeyny sphere - charge of illegal cohabitation that was absent in short edition of the Charter. Extensive edition of the Charter expands a circle of the acts which are considered as criminal even more: the first the direction differentiates magic,

the second - expands corpora delicti in the matrimonial relations. Criminal it is considered: drawing beating by the daughter-in-law of the mother-in-law; protection of the husband by the wife during his fight with other person which is followed by infliction of harm to the last; escape by mother of the illegitimate newborn child; unnatural defects.

In general it is possible to assume the following structure of the crimes referred by the Charter of the prince Vladimir to competence of church court:

1) Crimes against Christian belief: eretichestvo, magic and sorcery ("vetstvo", "zeleynichestvo", "потворь", "zuboyezha", "charodeyaniye", "volkhovaniye"), as well as charge ("urekanye") of them.
2) Sacrilege: church theft ("theft"); burial (on a pagan rite) on the unconsecrated place ("drawing mertve-

tsa"); robbery of dead bodies, damage of graves, damage of walls church, introduction or entering of animals into church.

3) Crimes in the matrimonial sphere: a divorce ("grew - let"); incest, that is marriage in the forbidden degrees of relationship and property (establishments of the relations as a result of a baptism); assault and battery (including an ukusheniye) parents children, a fight between spouses because of property; lawsuits about inheritance (about "bum") between children or brothers of the dead.
4) Crimes against morality: adultery;

procurement ("potvor"); kidnapping of the maiden or wife ("umych"), unnatural defects (skotolozhestvo); charge of illegal cohabitation.

5) Crimes against honor, life and health: rape ("poshibaniye" - is given according to V. Tsypin; in other interpretation "poshibaniye" is understood as a fight); ukusheniye and insult by words; drawing beating by the daughter-in-law of the mother-in-law; protection of the husband by the wife during his fight with other person which is followed by infliction of harm to the last; infanticide; escape by mother of the illegitimate newborn child.

At the same time the Charter of the prince Vladimir established also dual jurisdiction of church: 1) it judged all Christians - both ecclesiastics, and laymen - for a number of crimes, first of all moral character; 2) she judged church faces for all crimes committed by them; at the same time the circle of the tserkovnozavisimy population in various editions of the Charter is ambiguous. So, if in short edition of the Charter as the subjects who are completely transferred to competence of church court as "mitropolich church people" are defined: "the abbot, an igumenia, a popovicheva, chernets, is blackened, the deacon, dyakanovy, a proskurnitsa, the sexton, the widow, the cripple, the supporter, the zadshny person, the application engineer, hromets, the blind man, the clerk and vs of a prichetnitsa church.", average edition points to the following group of persons: "the abbot, the priest, dyakon and who in a choir, chernets, is blackened (proskurnitsa), a popada, Popovic, lechets, a proshchenik, for-dushny the person"; the general edition designates: "the abbot, the Mother Superior, the priest, the deacon, a diakonitsa and their children and who in a choir, a popadya, chernets, is blackened, a proskurnitsa, the sexton, lechets, a proshchenik, the woman the widow, the zadushny person, prikladen, the supporter, the blind man, hro-

Metz". But the fact that in one of them tserkovnozavisimy peasants and handicraftsmen are not traced is characteristic of all three lists. It, in our opinion, confirms emergence of this document in the period of government of the prince Vladimir, time when the church was only formed as socio-political institute of Kievan Rus'. Apparently, if the Charter was written to later time (in the 12th century and later), time when the church already managed to turn into quite large landowner having a significant amount of the peasants living on church and monastery lands, the handicraftsmen living in church and monastery settlements of posads, then these groups of the population would find obligatory reflection in the text of the Charter.

As V.O. Klyuchevsky wrote, the sin knows church, crime - the state. There was as well joint tserkovnomirsky a court which judged the tserkovnozavisimy population for the most serious crimes (Vladimirsky-Budanov 1995).

But, apparently, it begins to function during later period as in one of editions of the Charter it is not designated. Moreover, according to Nomocanons the prince Vladimir emphasizes non-interference to these affairs of secular aristocrats: "... these do not befit tyazh and vessels you judge to the prince, neither boyars, nor his judges." (it is brought according to the List of short edition).

So, the Charter of the prince Vladimir was the declaring document which approved church court and established a circle of acts and persons, jurisdictional to it. The Charter did not authorize a punishment measure, having granted to church the right to work independently, leaning in essence on the Byzantine right based on Justinian's laws expressed first of all in Nomocanons, the Eclogue and Prokhi-Rhone and presented in Russia to Helmsmen books.

Further development of position of legal orientation, designated in the Charter of the prince Vladimir, not only the illegal acts which are within the competence of church court, but also requital for them find in the Charter of the prince Yaroslav which designated. At the same time the Charter of the prince Yaroslav in the form of punishment provides not only the various penalties and compensations, but also such type of punishment as an execution which did not find reflection in the Russian Truth applied in secular legal proceedings. Number of articles of the Charter gla-

sit: "the prince executes", "to execute under the law". So, for example, for stealing, violence or opprobium of the seigniorial daughter the payment by the offender was provided in its advantage of five hryvnias of gold, the equivalent sum was paid in favor of the bishop, but at the same time it was specified to execute to the prince troublemakers. Taking into account social differentiation for similar acts concerning commoners ("kind people") the sum of payments was much lower - 5 hryvnias of silver, but at the same time it was also specified to execute to the prince them. Apparently, even at the level of ordinary consciousness it is impossible to assume that the boyar of the Old Russian state, the combatant of the prince, the soldier could be satisfied with gold from the offender in the form of compensation for violation of his daughter, the sister or the wife. Does not raise doubts that the Old Russian right tabooed blood feud as a remnant of Slavic pagan custom, but it does not mean at all that it refused fair punishment for deeds. Apparently, to development of state mechanism and withdrawal from the patriarchal and patrimonial relations there were changes and in implementation of retaliatory policy. A peculiar transformation of the retaliatory rights concerning the offender from directly victim or his relatives to the state acting through the prince was observed, at the same time degree of justice of requital was defined by church court.

Standard base for functioning of church courts on the cases submitted to their competence also was the Byzantine canon law based on Justinian's laws. At the same time Byzantine, to be exact - ancient Roman, the right many centuries knew criminal violation (crimen) demanding cruel punishment. And a number of the crimes transferred by Charters of Old Russian princes to competence of church court corresponded to characteristic of crimen and prescribed quite cruel punishment, punishment. So, crimes against Christian belief are encroachments much, established for church, and on departure of church services, on inviolability of temples (including church thefts and sacrilege), heresy, paganism, an exit from Christianity, the magic and a volkhovaniye, "zeleynichestvo" (that is preparation of poisons and "love" potions) were considered as crimen and predusmat-

rivat quite tough punishment. And the last of listed were equated to intention of commission of murder in view of a possibility of approach of dangerous consequences. Also violations of norms of matrimonial law were considered as a criminal offense: mismatch, adultery, bigamy, kidnapping of women, procurement, paederasty, etc. Offense recognition penal asked about imposing on the guilty person of such punishment (poena) as clarification of society from the criminal and granting it in the power of gods punishing. At the same time punishment was prescribed by the right as requital for concrete crime, that is in a conditional measure corresponded to crime. So, for especially dangerous to society or especially daring crimes the Byzantine right in the form of punishment provided the death penalty (poena capitis) which usual form were beheading the axe, and in military conditions - a sword, and during a pre-Christian era - a crucifixion on a cross. Special types of the death penalty were: drowning in a bag, burning, an afterfeast on worry to wild animals (that remained in the Russian national fairy tales to this day), dropping from the rock and a zamurovyvaniye in a wall. The last type of the death penalty was applied also to nuns for violations of public or religious morals. As for penalties, they were imposed for minor offenses (Omelchenko 2000: 72-83).

The aforesaid according to the description of similarity of the acts demanding punishment confirms the Byzantine legal reception by the Old Russian state from what it is possible to assume also reception of requital as punishments for them that, apparently, and finds reflection in the church Charter of the prince Yaroslav in the form of the instruction "to the prince to execute". At the same time the Charter assesses the greatest part of crimes with double punishment - a fine in favor of the bishop and an execution in the true sense from the prince that, according to E.E. Golubinsky, also something was inadmissible ".kak something opposite to reason human in an inconceivable way being given from all other legislations." (Golubinsky 1997: 404). Concerning it it is possible to tell that the duality of punishment (as the main and additional) had quite broad application in medieval Western Europe. But, apparently, monetary

the penalty in the Old Russian state unlike the European states had the specifics. It is possible to assume that it was not additional punishment to an execution, and a peculiar payment of judicial proceedings: "as a .istochnik for keeping of our metropolitan and bishops judgment duties could serve: not from vessels only civil from which as we saw, only one tithe, and besides from a part actually princely, but from the church courts provided by the charter only to department of hierarches" (Makari was separated 1995 for Church: 100). As E.E. Golubinsky noted (1997: 396-397), in Greece the legal concepts stood on other step of development, than in the Old Russian state: the Byzantine court was a public affair, and the judge's relations with the defendant were limited to judicial proceedings and adjudgement. From defendants the judge did not receive any remuneration for production of process. On the contrary, at us, Russia, judges supported having legal proceedings - from each lawsuit to their advantage there was a certain penalty fee or duty. And if in Byzantium it was indifferent for judges who managed court, and bishops were granted the wide right of intervention in affairs of the national court as to peculiar arbitration judges (whom could address tyazhushchiyesya in case of unwillingness of the appeal to secular court), then in the Old Russian state the issue of the one who has to manage justice was fundamental. And it, in our opinion, explains value of the duality of punishment shown in the church Charter of the prince Yaroslav.

So, the church Charter of Yaroslav for a number of crimes in the form of primary punishment provides a princely execution, authorizes it. But it was applied and at the time of government of the prince Vladimir that is reflected in the Lavrentyevsky chronicle to which in the researches refer also A.E. Presnyakov (1995: 491), and metropolitan Makari (1995: 99): "Zhivyashche Volodimer in stras God's and umnozhishasya to a razboyeva, and a rjsha of Episkopi to Volodimer: "Xie umnozhishasya she-robbers, mail not of a kaznisha ikh?" It speeches im: "I am afraid of a grjkh". They rjsha to it: "You postavlen if ot god on an execution zlym, and dobrym on a milovanye; will stand till the end ti you execute the robber, but with ispytom". Volodimer otverg vira, a nach you execute

razboynika, and rjsha bishop and aged man: "The host is a lot of; Auger of a vir, on weapon and on konikh awake". And Volodimer's speeches: "Awake Tako". And a zhivyasha of Voldimer on organization otnyu and djdnyu". Makari explains this fragment as follows: "Once, when in Russia robberies were increased, bishops came to Vladimir and told him: "Here robbers why you do not execute them were increased?" He answered: "I am afraid of a sin". Bishops noticed: "You are put from God on an execution angry, and on favor kind; you should execute robbers only with test". And Vladimir decided to cancel an ancient folk custom on which for robbery only the vira, or a payment was raised, and began to execute according to the Greek laws villains death for smertoubiystvo. Soon, however, when because of the increased host with enemies means for a covering of costs of war were required, bishops together with elders came to the prince again and suggested it to restore vira they went on weapon and horses. Vladimir agreed also now, having told: "Yes will be so", and began to live on an ustro-enye of the father and grandfather".

Development of the right caused also formation of a system of execution of the punishment. In the traditional understanding based on the Russian Truth as the main source of common law of east Slavs, the execution of the punishment which is expressed in a fine was made by combatants of the prince - the virnik who received the name from a punishment front view - vira. However replenishment of treasury at the expense of the offender and a princely execution for the violations provided by the Byzantine canon law, retseptirovan-ny Russia - processes quite multi ordinal. If the first understands punishment as a reward of the victim, then the second - as the act god-given to the prince of the power "on an execution angry, and kind on coating". And ancient records would have to keep though some information about the persons making an execution a name of the prince. However, as A.E. Presnyakov noted (І993: 435), "sources speak to us not about traveling of judges for court but only about travel of prince virnik for collecting vir. As vira the virnik, so collects sales - emets". The answer to a question can contain, in our opinion, in the most palace and patrimonial control system of the Old Russian state. Absence special state orga-

it is new assumed execution of the state functions including retaliatory, any member of princely team as separate, maybe, and single, orders of the prince. At the same time the wording of the church Charter of the prince Yaroslav - the metropolitan judges, the prince executes, - in our opinion, completely excludes participation in this process of clergy (both black, and white) unlike sacred medieval Western European inquisition.

Thus, formation of precepts of law of the Old Russian state - process difficult and multilateral. And disclosure of its intrinsic parties demands deeper objective historico-philosophical analysis which is based on use of the philosophical categorial device: single (as specifics of customs of pagan Russia) and the general (as the adapted to Russia initial Byzantine, and in essence, Roman right); systems, structure and an element by consideration of formation of the Old Russian judicial system and its differentiation on secular and church; and also subjective and objective reflection of retseptirovanny standards of the canon law in questions in public consciousness and their estimates by researchers of history of the right during various historical periods of time. Apparently, the insufficient study of the mechanism of implementation of the canon law of the Old Russian state by the Soviet researchers was to some extent caused also by disestablishment that led to loss of interest in it as to political institute.


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Jennifer Donna
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