Growth of Law in Medieval Russia, by Daniel Kaiser
Evolutionary analysis of Russia’s development, horizontal-vertical, dyadic-triadic, invisible 3rd parties, supernatural mediation, police, procedural rationality, complexity and differentiation
Daniel H. Kaiser wrote:
CHAPTER 1
Notions of Law and Legal Development
… Medieval Russian law developed notions of sanction, evidence, and a judiciary, none of which had been prominent in the eleventh and twelfth centuries. How these changes arose, and from what sources, remain unanswered questions … But the growth of the law is clearly demonstrable, and itself is symptomatic of the changing social structure of late medieval Russia.
If the extant sources themselves are not sufficient to illustrate all the details of legal change, there is help available in the enormous literature on comparative law which has grown up in the last century. Particularly within the last several decades, jurisprudential theory has been enriched by the considerable fund of ethnographic reports which treat legal institutions as one of the basic facets of society. The acute observations of trained scholars who have examined the passage of societies from traditional to modern are especially illuminating for the historian of medieval Russia whose institutions experienced similar alteration. By the beginning of the sixteenth century Russian law had taken on many of the characteristics of the law of modern states, but in its infancy Russian law came much closer to the system of consensual norms which governs those societies without a developed state structure, without a high degree of social differentiation, and without large doses of foreign state law. It is precisely societies of the latter type that have drawn the sustained attention of ethnographers and social anthropologists, and their records will prove illuminating for discussion of some concepts and institutions of Russian law which have mystified researchers.
The nature of law itself in traditional societies has been the subject of much learned debate among jurisprudents. Since the extraordinary growth of national states in nineteenth-century Europe, statist conceptions of law have dominated jurisprudential theory. The law has come to be identified with notions of authoritative state structures and coercive penalties inflicted by agents of those structures upon social deviants. Long after John Austin's formulation of this “key to the science of jurisprudence,” respected jurisprudents continued to call for an understanding of the law exclusively in terms of coercive sanctions and hierarchical state structures. But coercive-law theory, born in an imperialistic era, not only undervalued traditional society as encountered in the colonies of the European powers. It also obstructed examination of legal development. For the coercive-law theorists, there was only one law, and Europe was its prophet.
The emergence of twentieth-century sociology did not temper this bent in the literature. Max Weber, for example, while on the one hand denying that law "exists only where legal coercion is guaranteed by the political authority," on the other hand, specifically allowed that only those orders enforceable by a "staff of people holding themselves specially ready for that purpose" qualified as law. It is true that Weber admitted some legal role for blood venegeance and feud, coercive results of social deviance not tied directly to state institutions. But Weber himself was not happy with this situation, and was obliged to reiterate that behavior supported by convention or the expectation of disapproval and reprisals did not constitute law. Weber's perception of legal development from categories of irrationally formal legal thought to logically formal rational legal thought remains a useful guide, at least for certain aspects of European legal development. But his insistence on examining the growth of rational categories in connection with the growth of the imperium and its officials obscures the earlier phases of legal change. Rationality is demanded in the law when traditional authority breaks down, but that represents only a switch in sources of legitimacy, not the difference between law and something non legal.
The introduction of concepts of social relations into notions of the law helped stimulate a more comprehensive approach to legal institutions. Roscoe Pound, for example, attempted to integrate the law into the fabric of society, and even went so far as to estimate the parallel utility of ethics and morals, kinship and religion in restraining social deviance. For all that, he had difficulty in abandoning the idea of state institutions. In the final analysis, law was reduced to an instrument for reconciling human wants and needs "by an ordering of human conduct through politically organized society." In one case, Pound admitted the priesthood to such an understanding, but only in the context that it declared precepts "enforced by penances and exclusion from the society of the pious."
Recent jurisprudential theory has sought still more independence of law from consequences attendant upon social deviance. Hermann Kantorowicz, among others, proposed an understanding of law as "a body of rules aiming at the prevention or the orderly settlement of conflicts," or, more particularly, "a body of rules prescribing external conduct and considered justiciable." Kantorowicz correctly understood that narrowly prescriptive definitions of law impose hindrances to understanding judicial process and the social functions of law, and proposed that the haggling over definitions in the abstract should yield to a more practical evaluation of the utility of a definition for the particular science in which it is used.
Several creative attempts to rethink our understanding of law have resulted from the effort to escape Austinian models. Some, like Hans Kelsen's "Pure Theory of Law," are less successful than others. Kelsen, in trying to free jurisprudence from all alien elements, cannot escape the dominance of sanctions, even though sanctions themselves are liberally interpreted. In reducing law to Kelsen's positivist approach, one may construe the norms of social behavior as law only with the imprimatur of legal institutions courts and other agencies of sanction. Consequently, prescribed norms of behavior become law only with the attachment of the condition of effectiveness, that is, on the condition of legal sanction. But systems of social control may and do operate effectively without institutionalized sanction.
That sanction is not vital to the law is demonstrated quite well in another attempt at revising Austinian jurisprudence. H.L.A. Hart successfully formulated a view of the law which makes sanctions no more than an appurtenance of some kinds of law. Hart's construction envisions two types of rules: primary rules which prescribe norms of behavior or confer powers, and secondary rules which govern the implementation of primary rules. Included among the latter are the rules of recognition, change, and adjudication, the last of which includes the establishment of sanctions. Hart's efforts in the main effectively escape the restrictions of command-law theory. In particular, the system of rules allows for situations certainly deemed legal though no sanctions may conceivably be attached to the rule-for example, rules which confer powers. More than that, Hart's system allows for a more productive use of law in analyzing social structures. Societies dominated by primary rules of behavior are conceivable in conditions where uninstitutionalized social pressure is still operative. Secondary rules accompany the further centralization of social pressure, an event which is likely to occur in concert with the development of legal sanctions. In short, Hart, while not specifically intending to do so, has succeeded in laying out a broad spectrum of combinations where we may understand law to be functioning.
Assistance in the struggle to find a satisfactory conception of law which embraces divergent social structures has come from various quarters. In particular, the field work of anthropologists has stimulated promising comparative investigations in international law. Like the stateless societies of the so-called primitive world, contemporary international relations are governed by notions of law which preclude the imposition of sanctions, strictly conceived. Relations between formally equal power centers are governed by characteristics such as restraint, reciprocity, and mutual agreement. Recognition of law without sanctions has prompted some scholars to propose a theoretical spectrum of legal relations which encompasses both the hierarchical power structures of the modern nation-state and the nonhierarchical orders present in relations be tween states.
It is a small but significant step to transfer this model to the much wider conception of legal development, including structures dominated by self-help and self-restraints as well as those controlled by Austinian sovereigns. Vertical legal systems in which orders and threats of sanctions prevail are paralleled by a hierarchy of institutions which may compel obedience to their commands. Horizontal systems, on the other hand, rely upon less formal means to regulate behavior. Where vertical systems utilize particular personnel to mediate and adjudicate, as well as to enforce dispute resolutions, horizontal systems depend upon conventionalized dispute regulation in which the two primary actors themselves resolve the conflict.
Horizontal systems reveal little evidence of the visible apparatus of law and politics. Official institutionalized intermediaries are absent, a situation which has given rise to labeling such systems dyadic, dominated by the actions of the offender and the victim. Triadic systems earn that designation by virtue of the fact that the disputants are joined by official agents of reconciliation. Whereas in horizontal systems the victim must undertake his own investigation and receive satisfaction in accordance with procedures accepted within the jural community, officials in vertical systems, specifically designated for conducting investigations and adjudication, take steps decreed by existing state order, and ultimately fix the state's penalties upon those judged to have violated behavioral norms.
Horizontal systems therefore depend on other kinds of strictures in order to maintain harmony within the community. Societies where this kind of justice prevails are usually homogeneous, small, and bound by kinship relations. Resolution of conflict depends upon what one scholar calls "invisible mediators," those conventions hallowed by consensus within the jural community. With growing social differentiation the task of mediation also becomes differentiated, falling increasingly within the exclusive jurisdiction of a particular person or caste. Typically, such mediators fulfill their arbitration duties in addition to other tasks, which they execute by virtue of their standing in the community. Their role may be a result of wealth, expertise, or some other trait highly valued in the society. But in those systems where homogeneity breaks down, where internal bonds such as kinship are weak, deviant behavior is less susceptible to correction through informal resolution. Counsel, official mediators, and police are all associated with societies characterized by division of labor, some use of writing, and money. …
… Horizontal societies, as they will be understood in this study, represent those societies where conflict resolution is essentially a matter for the parties directly involved-offender and victim. Each party is on an equal footing, restrained only by the norms which the jural community, loosely understood, will permit. At the most violent level, these bilateral relations will function under the norms of retaliation or revenge, but the alternatives still utilize horizontal forms of reconciliation, relying upon compensation and composition. Nevertheless, whether the dispute is resolved through retaliation or compensation, the scales of reciprocity are established in the consensus of the jural community. Even without codification, the range of satisfactions becomes part of the community's conscious ness. When the schedules of compensation are reduced to writing, the legal system reveals symptoms of change, although formally relations between the offender and the offended continue to operate on a dyadic basis.
Upon discovering some injury, whether to person or property, the victim himself must seek restitution through the channels established to bring the perpetrator to account. In traditional societies members of a kinship group often bear responsibility collectively, so that revenge and composition alike fall on the heads of the relatives of the offender.
[MGH: I think the author has not defined ‘composition’ although the legal term appears often and is clearly important to the history. A definition from Brittanica is: “Composition, in modern law, an agreement among the creditors of an insolvent debtor to accept an amount less than they are owed, in order to receive immediate payment”.]
Nevertheless, the reconciliation takes place exclusively between the two affected parties, whether the principals themselves or their sponsoring kinship group. Only gradually does any form of mediation intrude on this essentially horizontal relationship. Where intermediaries exist in societies already observed by anthropologists, the middlemen tend to be the wealthy, respected members of the community who have earned their station by virtue of their association with religion or a past record of wis dom. Typically, these mediators exert no force in bringing about a resolution, but merely serve to connect the two disputants. Consequently, procedure remains essentially horizontal and informal, supported only by consensus.
Disruption in this pattern occurs with the development of a strong third party. In the history of colonial law, the intrusion of Western legal notions and judiciaries upon the existent native structures interrupts horizontal systems. But it is clear from some of the samples of ethnographic reports that the same trend may be ob served in traditional societies whose own structures changed before their exposure to the centralized systems of the European colonialists. In either case, the emergence of a power hierarchy is associated with those polities where cultural and ethnic homogeneity and consensus no longer work. In order to unify the culturally diverse elements, a vertical political institution must enforce its will upon the disparate elements of the society. Therefore, hierarchies are institutionalized at the expense of the previously equal centers of power. Mediators acquire the ability to impose solutions, a fac tor that has its impact upon the conduct of procedure. The exclusive claims to authority that the vertical power structure makes imply the impermissibility of independent conflict reconciliation, so that increasingly all conflicts must be channeled through the official intermediary.
The most elemental form of mediation is a system of courts. Only those individuals invested with authority to hear and settle disputes may serve to bring justice to the disputants. At the same time, this authority compels those adjudged to be in the wrong to pay what ever price the justices set. From the point of view of the power structure, litigation may prove profitable if the proceeds are monopolized effectively. Consequently, matters once settled by restitution between the disputants by becoming the affair of a professional third party, become liable to his exactions. In this simple step there occurs the transition from private to public, from civil to criminal law.
The appearance of criminal law represents an important stage in the development of legal relations. Criminal offenses constitute harms inflicted on the entire community, as interpreted by the power structure. As a result, what an exchange of blows or goods once rectified now finds remedy in the imposition of third-party exactions, either financial or physical. Again, there can be no question that the imposition of financial sanctions which do not directly profit the victim cannot exist without the state hierarchy and its subservient institutions. Corporal sanctions come into being under the same conditions, often to the total confusion of peoples accustomed to a different way of doing things. Infliction of physical pain upon someone in and of itself offers the victim little satisfaction, unless it is the victim who inflicts the punishment. The psycho logical satisfaction presumed to accompany this process will be considerably less than that derived through a restoration of the relations which previously existed between the two parties.
Sanctions have special allure for functionaries of the state apparatus. In addition to providing the community with a sense that in fact there are limits to acceptable social behavior, sanctions also serve to buttress legislation, legal norms which may have no root in the customary norms of the jural community. In this context, sanctions stand as presumed deterrents to deviancy, warning the citizenry to abide by those regulations which the central power regards as inviolable. As the recent literature on deterrence suggests, physical sanctions may not achieve their desired ends. Perhaps the stubborn commitment to the role of sanctions in deterring deviancy may put to rest the suggestion that vertical structures represent some higher phase of legal evolution. Sanctions oblige compliance with norms undigested by the community only with a great investment in enforcement. Again, the experience of the colonial powers will be instructive in understanding the futility of imposing prohibitions upon the behavior of a citizenry which adjusts its relations by other norms.
Legal procedure also distinguishes horizontal from vertical systems. Societies without clearly defined hierarchies demand proofs of guilt or innocence by appeal to some supernatural power. In as much as neither the litigants, if that they are, nor any other member of a horizontal society may impose his judgment upon an equal, the decision rests with various forms of ordeal designed to release from responsibility each member of the society. Trial by water, fire, and oath are widely known in traditional societies, and their results find acceptance in the jural community.
Vertical systems, for their part, engage in more direct forms of investigation and prosecution. Far from ceding their powers to unknown divinities, these power systems attempt to obtain as much control as possible over the process of finding, judging, and punishing deviants. Rules of procedure, what Hart calls secondary rules, are designed by the power hierarchy in much the same way as the primary rules, the norms of behavior. Within the context of a complex social fabric possessing numerous subcultures, the state mechanism undertakes to reduce the role of the unknown, and to submit as many elements as possible to verification by its own agents. Therefore witnesses are obliged to relate only that information which is verifiable with the senses; legal decisions of whatever type are increasingly consigned to paper, a medium which has no prejudice for either side; finally, even the issuance of paper guarantees is monopolized by the state institutions which alone may invest them with legal standing.
Indeed, legal standing comes to depend exclusively upon the will of the power hierarchy. Whereas the memory of the community was once sufficient to guarantee the validity of behavioral norms and their restitutive value, the social differentiation evident in vertical societies produces a demand for a medium of stating norms enforceable by state institutions. The result is a legal code. Weber correctly noted that in its earliest stages the process of codification represents little more than an attempt to generalize the prevailing norms to all the citizenry. Ultimately, however, the code serves as a means of including within the rubric of law behavioral prescriptions which were not generated from the community itself.
To suggest these trends in the law is not to underestimate the particular solution which each society applies to regulating social behavior. Societies represent various points along a broad continuum of legal systems. The prevalence of blood revenge and feud are well documented; composition as an alternative is even better known. Mediation in its various guises has been detected among the North American Plains Indians, the Ifugao of the Philippines and numerous African societies. The switch to formalized adjudication was noted in several colonial societies, and the concomitant growth of judicial agencies also has been observed. Colonial societies demonstrate equally well the movement toward sanctions, both physical and pecuniary. Consequently, there is a large base of residual data to tack on to the model explicated above.
Even in the face of so much ethnographic support, the image of the law's relationship to social structure remains blurry. In the best-documented societies from which a relatively reliable sample was taken, much is still unknown. In comparison with the extended period during which these societies have operated, we have peeked into their internal structure only for a moment. Furthermore, despite the general apparent conformity of the known data to the scheme laid out above, exceptions have already been noted, and doubtless more will be uncovered.
Nevertheless, the model of legal change described above has considerable importance for historians of societies at the dawn of significant change. Their own records of themselves often appear only at that moment when the change is already well under way, a fact which the appearance of writing itself seems to support. For those societies already changed, there is no chance of retreating into their consciousness, no chance for firsthand observation of the type that contemporary ethnographers have done for the traditional societies still active in our era. The records bequeathed by the participants of long-gone societies have themselves weathered the intervening centuries only at the cost of considerable loss. Terms once understood within the context of the society in which they were written have either totally lost their original meaning or have acquired an altogether new meaning which obscures our vision of the past.
The model of legal change described above is especially useful for enlarging upon the laconic description of medieval Russia contained in the extant historical sources. At the beginning of the thirteenth century, Russian society was essentially horizontal. Surviving documentation attests to the fact that blood revenge had only recently been supplanted by composition. Procedure, such as there was, dictated that the victim initiate his claims against the alleged offender, who in turn was obliged to fend off the accusation as best he could. Various forms of ritual expurgation acted as ultimate spokesmen in cases where more mundane evidence was not available. Sanctions remained rare, in the main still subsidiary to composition, itself institutionalized in code form. Some cases of financial sanction do appear, probably in the late twelfth or early thirteenth century, but physical sanctions remained unknown. Thirteenth-century Russian society demonstrates all the traits of horizontal legal relations: procedure was dyadic and no sanctions were attached to the commission of private wrongs.
In contrast to the system of self-help outlined in the first codes, later legal texts give evidence of the rapid and steady undermining of the bilateral process. Instead, triadic forms of conflict resolution appeared with specialized mediation personnel. Courts, unknown by any direct reference in the first codes, gradually assumed definite composition and functions, and were staffed with their own hierarchies of supplementary personnel. One of the duties which devolved upon these intermediaries was the infliction of coercive and pecuniary sanctions, to the virtual exclusion of restitutive penalties. Private wrongs became more difficult to conceptualize, inasmuch as private settlement with various offenders became an offense specifically prohibited by princely legislation. Monopolization of the power to inflict sanctions grew in tandem with a monopolization of the authority to judge, record, and certify the results of litigation. In sum, late fifteenth-century Russian law may aptly be described as vertical, characterized by formally unequal centers of power.
To associate the change in legal relations with changes in social structure is more hazardous. … One may expect, for example, that fifteenth-century Russian society grew absolutely, that its occupations became more clearly differentiated, and that a money economy became more usual than was apparent three centuries earlier. Likewise traditional forms of social organization may be expected to have receded in the face of the growing presumptions of state organs. Kinship ties may have lost their former strength, and larger associations of kin may have followed the trend toward individualization and differentiation. Religion, too, deprived of its former strength as an arbiter, likely diminished in importance, increasingly replaced by the rational formal modes examined so brilliantly by Weber.
Even alerted to the precariousness of inferring social change too rigidly from the model of legal change, one is still forced to ac knowledge some obvious parallels in late medieval Russian society. The role of kinship as understood in pre-Christian Russia did undergo significant changes in the face of the church's own under standing of the appropriate relationship of blood relatives and affines. The prolonged howl of churchmen against the incestuous morality of the day suggests that the old conceptions had not yet died out, and that communal kinship organizations may still have exercised some of their social functions. Although the nuclear family became ever more usual in these centuries, the data introduced below demonstrate that extended kin ties, far from dying out, retained some measure of vitality even in early Muscovy.
The import of all this is considerable for our depiction of the demise of Kievan Russia and the rise of Muscovy. The persistence of community kinship ties helps explain Muscovy's reliance upon local institutions, even after the annexation of Novgorod and Pskov. The gradual sophistication of legal arrangements, expressed in rules of procedure, the application of sanctions, and the growth of a judiciary, become more comprehensible in the context of the church's preoccupation with the law. While on the one hand churchmen supplied models of procedural and criminal law, on the other hand these same churchmen were engaged in a struggle against traditional institutions rooted in the deep past when kinship and pagan religion played much greater roles. The net effect of this two-sided contribution was the growth of secular state institutions at the expense of traditional social structures.
In any case, the basic alteration in medieval Russian law is inescapable. Although its course was halting and uneven, Russian society of the thirteenth, fourteenth, and fifteenth centuries moved from a legal system dominated by horizontal, dyadic relations to one characterized by vertical, triadic relations. This pattern is evident in the development of sanctions, the appearance of judicial personnel, and the changing norms of procedure and evidence. …
CHAPTER 3
Sanctions and the Law
As recent studies have shown, the appearance of formal sanctions is closely connected with the maturation of legal structures. Horizontal systems, not disadvantaged by the limits imposed upon large heterogeneous societies, may rely upon informal sanctions to regulate behavior. The relatively small size of the social grouping permits effective advertisement of behavioral norms, and at the same time, emphasizes the effect of deviance. In this context the force of personalized public opinion monitors social norms, and a wide variety of informal actions censures unacceptable behavior.
Blood revenge, carried out by kin of the aggrieved party, is representative of the earliest stage of lateral legal relations. Here the community's estimate of deviant behavior is so uniform that the offender’s own kin accept the vengeance act without retaliation. But horizontal relations take on a different character in those societies where property interests facilitate the transition to composition. Revenge yields to restitution payments, still carried out by the in terested parties, and the same social pressure which legitimized satisfactions through revenge supports norms by which values for various torts are established. Kinship and face-to-face acquaintance help reinforce the approved means of conflict resolution.
By contrast, a high level of centralized authority characterizes vertical systems, which therefore are well suited to the administration of formal sanctions upon deviants. The reduction in personal acquaintance within the community and the lessened role of kinship relations in regulating behavior vitiate the informal sanctions operative in horizontal societies. At the same time, social differentiation and its accompanying labor specialization make possible the creation of a staff of persons specially commissioned to administer sanctions in place of the informal censure operative in horizontal systems.
All this suggests a developmental pattern for sanctions, from revenge or informal restitution, present in most traditional societies, to the institution of formal sanctions and the appearance of the concept of felony. It is important to establish that it is not the severity of the sanction that identifies the different systems, but rather the nature of its imposition. It may be argued, for example, that revenge is a severe form of punishment, but the importance for our study is that revenge, like restitution, involves only the affected parties, while formalized sanctions rely upon a specialized staff of enforcers. Broadly conceived, the enforcement staff includes the judiciary as well as its police accompaniment. Both elements belong to the third party which is responsible for legal satisfaction. Consequently, while restitution and revenge both rely upon the consensual support of the community, an enforcement staff operates on the basis of authority vested in it by the vertical structure.
The evolutionary pattern in the development of sanctions is fully apparent in the law of medieval Russia, especially in the period from the thirteenth to fifteenth centuries. Still an essentially agrarian society, still influenced by kinship organizations and under the influence of a foreign conqueror, Russian society of the thirteenth century had not yet developed a vertical state structure or the organs of enforcement inherent in this concept. Three centuries saw all that change. …
CHAPTER 4
Development of Judicial Personnel
Vertical legal systems are impossible without the appearance of the third party: the judiciary and its pertinent assistants. Studies based on ethnographic data suggest that the development of a police presence is dependent upon a substantial division of labor and the growth of a money economy. A less clearly defined form of third party presence, mediation, appears more frequently, and seems to evolve before police institutions, though not necessarily in conjunction with the latter. For example, the use of money shows a much more consistent correlation with societies that have official police enforcement than with societies where mediation remains the strongest form of third-party presence.
Nevertheless, the usual explanations of the rise of the police rely heavily upon contemporary conceptions of statehood. Max Weber, for example, attempted to isolate his notions about police agency from the notion of a state, but in constructing a definition of "legal order" made central the presence of a clearly defined enforcement staff. Although Weber was disposed to admit as sanctions even seemingly informal punishments administered under the rubric of revenge, he was obliged to recognize such a prescription as "the very limit of what can still be regarded as 'legal coercion.'" In fact, Weber went on to add that "mere social disapproval and reprisals on the part of those who are harmed ... merely by convention and self-interest rather than by a staff of persons whose conduct is specially oriented toward the observation of the regulatory order" does not fall within the scope of law. As a result, rule by a "legal order" was reserved exclusively for those state systems which sought enforcement through formal sanctions.
While more material is still desirable, the available fund of ethnographic data indicates quite clearly that the appearance of a third-party mechanism for resolving disputes is connected with the level of social organization. [Max] Gluckman’s typology of development, for example, shows the transition from self-help to some form of mediator when the social grouping exceeds a few hundred members. Though Gluckman [anthropologist] found cases of self-help societies even in the presence of nascent vertical systems, the appearance of police as such is strongly associated with that vertical political system he identified as “authoritative chieftainship”. An institution such as the police, the prototypical embodiment of Weber's staff of enforcers, often emerges then from a series of more informal intermediaries.
The range of mediators known from ethnographic reports points to an equally broad range of relationships between litigating parties. The simplest societies-least fractured by societal complexity and social differentiation, least affected by the intrusion of foreign members and values, and smallest in terms of absolute numbers exercise a form of conflict mediation that has been labeled in the literature “invisible”. This mediation is the simple operation of normal social constraints where retaliation, for example, is admitted by the community for the aggrieved party. More distinct forms of mediation follow with differentiation. Various experts serve as consultants and impose their authoritative judgments upon the litigants. Such an intermediary stance may at first rely upon super natural bases, and examples of sorcerers or religious intermediaries are widely attested. Weber took cognizance of this reality, and appropriated religion as one of the early forms of enforcement of social norms, which thereby converted norms into law. In this context, priests as well as police assume a stance between litigants. Only with increasing societal complexity may one observe the separation of religion and other conceptual frameworks from law.
Further changes in the kinds of mediation keep pace with society's own alterations. In general, various forms of explicit mediation become more visible under the conditions of absolute growth of a society and development of a money economy. Even such enforcement-conscious analysts as [E. Adamson] Hoebel must admit that the trend in law is the shift in responsibility for norm maintenance from the individual and his kinship group "to agents of the body politic as a social entity." Gradually mediators assume a more visible, aggressive, and formal role in ordering social relations, and become involved in enforcing compliance with the norms of societies them selves increasingly heterogeneous.
The changes in the movement toward third-party mediation outlined above are descriptive of the process that took place in Russia in the centuries between the appearance of the Russkaia Pravda and the 1497 Sudebnik. Although Weber claimed to see in the Russkaia Pravda itself the beginnings of this process, his position has not been popular with most historians of Russian law. Considerations of a nationalistic and political character have imposed on the Pravda a particular role, making it a product of princely legislation, the fruit of a fully developed "feudal" system furnished with a host of judicial functionaries. These ideas, as noted in the preceding chapter, rely upon certain views of sanction and its application in medieval Russia. But careful examination of the development of specialized judicial personnel shows that only slowly and gradually did such enforcement functionaries appear in early Muscovy. Their antecedents performed a variety of implicit tasks that ultimately came to construct the legal triad typical of vertical systems.
The bulk of the historical literature, however, does not share this modest assessment of the early princely officials. Among pre revolutionary scholars, the devotion to the idea of early state development has guaranteed its corollary of a host of specialized judicial officials. The most famous monograph devoted to this problem is A. E. Presniakov's Kniazhoe pravo (Princely Law), a survey of the prince's position in Old Russian society in the tenth, eleventh, and twelfth centuries. The essential point of Presniakov's work is to establish the predominance of the prince in early state development in general, and in the Russkaia Pravda in particular. Presniakov attributes the existence of nearly every component of specialized personnel to its association with the prince.
Soviet typology of history has somewhat different motives for visualizing an essentially identical construct. The "feudal fragmentation" traditionally assigned to the centuries with which this study is concerned was preceded by the development of a state apparatus manned by the Riurikid princes. In order to justify the appropriate levels of exploitation, it is convenient for Soviet scholars to credit the princely administration with a fairly sophisticated level of labor differentiation. Such wishful thinking often penetrates discussion of the princely juridical structure. Of course medieval Russia did develop a princely administration, and these princes were surrounded by their own servitors, who are known in the texts as the retinue (druzhina). But given the private nature of princely income in the period before the thirteenth century, the private nature of the retinue seems undoubted as well. Although it falls outside the bounds of this study to examine the origins of each of the princely servitors, a careful inspection of the judicial staff supports the notion of a private princely apparatus, distinct from the institutions of customary law in medieval Russia. …
CHAPTER 6
Medieval Russian Society and Legal Change
Medieval Russian legal development raises significant questions about early Russian society and its role in altering the law. On the one hand, the persistence of traditional legal formulations, especially outside the urban environments of Novgorod and Pskov, strongly suggests that the society which utilized that law was experiencing no fundamental changes to which the law had to respond. In fact, the thirteenth-century Russkaia Pravda, by comparison with the European so-called barbarian codes of the early Middle Ages, seems relatively antique and unaffected by principles of Roman law such as had altered Germanic law. The comparison implies that late medieval Russian society, like its early Germanic counterparts, was relatively traditional, and demanded no political hierarchy.
However, as the preceding analysis demonstrates, medieval Russian law does give evidence of certain fundamental changes. Although the transition was gradual, by the end of the fifteenth century judicial sanction, a concept alien to earlier customary norms, had become firmly implanted in the law. At the same time, the appearance of judicial personnel and the trend described above in principles of evidence meant that a judicial hierarchy was in place and that the law itself was being rationalized. Both consequences suggest a more complex form of social ordering.
The exact tempo of the law's growth is difficult to trace, for reasons pointed out earlier. In rough terms, however, it seems clear that the first basic alterations in the legal order originated with the prince, and codification of these changes ultimately emerged in the first code of the centralized Moscow principality. That is, political authority was undoubtedly a vital force in legal change in medieval Russia. It is impossible, however, to attribute all the changes noted in this study to the prince's initiative alone. For one thing, much of the precedent for revitalizing principles of evidence belongs to the city-republics of Pskov and Novgorod, where in late medieval times the prince was little more than a figurehead. Furthermore, as many historians have pointed out, the presence of large numbers of clergymen, trained in canon law and practicing that law in clerical courts in Russia, could hardly have failed to have had its impact upon native customary law. Indeed, the peculiar conditions under which medieval Russian law survives-almost exclusively in clerical compendia-suggest at least that the church was closely associated with the changing law.
In short, two routes to legal change are possible. On the one hand it may be that the internal ordering of Russian society altered sufficiently in three centuries to require that the legal system adapt itself to new demands. While no absolute correlation between social structure and legal systems has yet been identified, there are strong indications that particular legal institutions are often associated with particular social orders. At the same time, medieval Russia did not develop its law in isolation from external influences. The northwestern cities had fairly regular contact with foreign merchants, and the Byzantine-trained clerics gradually increased the number of their outposts throughout Russia.
Both factors, then, external and internal, merit closer inspection. At the outset it is important to recall the nature of medieval Russian legal change. In the first place, changes were gradual and not completely triumphant even in early Muscovy. Outside the urban centers, and especially in rural areas far removed from the political apparatus, law retained its traditional formulations. Secondly, the changes that did occur were intimately connected with the political structure. One of the chief developments was the multiplication of the prince's officials and the duties of those officials. The growth of the law, therefore, was most visible in the increased participation of the prince's underlings in judicial process. Finally, changes in the law were both procedural and substantive. In other words, the alterations were not simply minor adjustments or technical corrections. On the contrary, they struck at the heart of the old system, and in doing so struck at old Russian society as well. …
SOCIETY AND LEGAL CHANGE
… As the church's experience with pagan religion makes clear, medieval Russian society was not especially open to change. Contrary to what some would have us believe, Christianity did not early succeed in opening any mortal wounds in traditional society. Furthermore, the sustained popular resistance to innovation indicates that it was not as a result of society's own dramatic realignment that legal change appeared in medieval Russia. Quite the opposite: even late in the fifteenth century some aspects of judicial procedure seem hardly distinguishable from their thirteenth-century antecedents. Signs of a new order were present and even were institutionalized in law, but common perceptions of the law remained unchanged.
The striking distinction between official and popular conceptions of the law is itself descriptive of the type of change introduced. In much the same fashion as Christianity had come to Russia, the new legal system was imposed upon Russian society forcefully from above. Just as the church was Vladimir's creature, the vertical legal order was the result, gradual to be sure, of princely intrusions into the realm of customary law. As proof of this contention one need only examine the relatively static nature of Russian social organization in the thirteenth, fourteenth, and fifteenth centuries and contrast it with the dramatic changes in princely administration. …
Two principal viewpoints on medieval Russia's social order pre dominate in the historical literature. Most historians of late imperial Russia, especially the so-called state school, argued that early Russia was fundamentally a customary society in which informal social bonds were far stronger than the formal ties of political or economic institutions. Chief spokesman for the state school historians was S. M. Solov'ev who argued that clan (rod) relations dominated Russian society right up to the twelfth century. The succeeding three or four centuries, which Solov'ev regarded as a transitional period, saw only a slow ebbing of the role of kinship in regulating social intercourse in the face of a growing state order.
In spite of the apparent belittling of the state order, Solov'ev's argument relied rather heavily upon the history of princely relations recorded in the Primary Chronicle. The repeated scenario of the clan elder sitting on the Kievan throne and lesser kinsmen occupying less prestigious capitals throughout the Russian land served as the chief evidence for the theory of clan relations. But even if the princes' penchant for shifting capitals accurately reflects the prevalence of a kinship hierarchy, it says very little about the social structure of the remainder of the population. …
… Soviet historians, with few exceptions, depict a far different society. It is now customary to read in Soviet historical studies that Russian society of the thirteenth century was characterized by feudal fragmentation. Ultimately this assessment has social consequences, but the premise upon which the conclusion rests is political: some sophisticated state structure, once active, had by the thirteenth century already receded. In place of state structures, wide-ranging private institutions are said to have carried on the functions of government. Meanwhile social relations reached the level of complexity at which class antagonism and exploitation became highly visible. Several decades ago, B. D. Grekov offered what has since become the standard explanation of these matters. Already in the ninth century, he asserted, a full-fledged state structure was in existence, a condition that allowed a suitable time for the development of feudal relations several centuries later. In other words, medieval Russian society already was characterized by considerable social and economic differentiation and labor specialization. Far from being a relatively small, tradition bound agrarian social structure, early Russia was a thriving, increasingly urban, and highly adapted society. Even though agriculture still predominated in the economy, the appearance of class relations and economic exploitation is to most Soviet historians vividly manifest from the available sources. Allusions to slave-holding are quickly brushed away-medieval Russia was closer to European societies exactly contemporary with it than it was to any traditional society. …
Careful analysis of legal norms and structures shows that neither of the two prevailing images of early Russia warrants confidence. On the one hand, there are explicit clues that Russia had not really entered the late Middle Ages in tandem with the rest of European society. As late as the beginning of the thirteenth century effective judicial intermediaries remained unknown to the law, and satisfaction continued to depend upon the initiative of those directly wronged. In place of the hard evidence demanded later in the period, traditional forms of character reference persisted in determining the community's reaction to deviant behavior. Even revenge justice had only recently been expunged from the legal codes. All this, far from representing the legislative initiative of the Kievan princes, reflects customary legal norms. There is no reason to doubt that customary law held sway earlier in Kievan history as well.
On the other hand, there are signs that at least in parts of the Russian lands the law was indeed changing, presumably in step with the society it served. Particularly in the growing towns of northwest Russia, law became increasingly separated from the popular consciousness and embarked instead on a new course. Rationality was added to its procedures, and simultaneously sanctions were substituted for the compliance once guaranteed by the social homogeneity of the group. Particularly marked was the more frequent use of written documents as evidence. External influence, especially through the agency of the church, also had greater sway in the towns than in the countryside, where change came more slowly.
The usual approach to medieval Russian social history is to proceed directly to analyze the terms of social distinction in the legal codes. But the outcome of that effort, repeated countless times with identical and hopeless results, needs no restatement. …
… The rupture with ancestral places and religion, begun with the first physical migration from tribal lands, was sealed with the deepening of urban roots, and the townsmen proved not unreceptive to the claims of the new religion. Meanwhile much of Russian society experienced no significant changes. The basic social division between free and non-free remained, but more subtle distinctions seem not to have penetrated rural society. The Pravda's few allusions to commercial matters are engulfed by innumerable regulations that detail agricultural concerns. And tied to the land as he was, the medieval agriculturalist was still close to the soil which had nourished his ancestors and the way of life they had created. Consequently, not only did paganism remain strong, but the entire society stayed glued to traditional folkways and demanded no change in the law. Where kinship still served to help frame jural consensus, sanction was relatively use less. Compensation rather than punishment was the rule. Evidence, too, remained largely defined by customary usage, and as the surviving case sample illustrates, traditional procedure retained great vitality even in trials conducted by Muscovite judges in the sixteenth century. …
LEGAL CHANGE IN MEDIEVAL RUSSIA
In other words, the society which Russian medieval law had to service yields to no uniform generalization. It was a society in transition, but not everywhere changing at the same pace. One might think of it as a pastiche of cultures. Even the very approximate differences in development between city and countryside hide the numerous subcultures whose folkways remained unaffected for many years after the Mongols had gone. The several East Slavic tribes, their Finnie and Turkic neighbors who also settled within the boundaries of the emerging Muscovite state, all undoubtedly maintained an ethnic self-awareness that perpetuated traditional society and demanded no change in the law. The prior claims of kinship and pagan religion resisted innovation, and thus the law remained in harmony with the society it served. As impervious to the new religion as the pagan Russians must have seemed, they could have been no less steadfast in fighting off alterations in the law. When churchmen fanned out into the countryside in the fourteenth century in search of pagan souls to redeem, they took with them the rudiments of written law. But neither enterprise-legal or redemptive-met with much initial success.
The towns proved to be a more suitable environment for introducing change. Urban residents were already uprooted from agrarian society, and had left behind their ancestral lands. Although their religion remained pagan, the newcomers had proven by their migration that they were susceptible to change. When confronted with the increasingly complex demands of business, with none of the informal guarantees that had operated satisfactorily in the hinterland, the townsmen perceived the utility of a legal order more suited to the heterogeneous, relatively specialized society which they now comprised. Then, too, the temporary (by rural standards) nature of urban citizenship meant that some of the traditional elements of testimony had to be abandoned. Even were kinsmen available to vouch for the honesty of a townsman, that avowal meant little to an itinerant merchant. Therefore the victory of documentary evidence, unprejudiced and portable, was virtually guaranteed.
The Source:
Daniel H. Kaiser, The Growth of the Law in Medieval Russia, Princeton University Press 1980, 2016
Evolutions of social order from the earliest humans to the present day and future machine age.