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importuned Patriarch Joachim of Antioch, then visiting Moscow for alms, to

arrange a synod to elevateMetropolitanIov of Moscowto the rankofpatriarch.

Nothing happened, so when Patriarch Jeremiah II of Constantinople came to

Moscow for alms in 1589, Boris detained him until he consecrated Iov as

patriarch and proclaimed the Russian tsarstvo the third Rome. In May 1590 a

synod, including all the Eastern patriarchs, conﬁrmed Iov’s ordination.

The

reality of Iov’s dignity was more tenuous. In 1448 Grand Prince Vasilii II had

initiated Iona’s installation as metropolitan. His successors also decided who

became metropolitan or patriarch, oversaw his choice of prelates and often

intervened to elevate or depose them. They proceeded more cautiously in

ecclesiastical matters. In 1479 Metropolitan Gerontii retired to the Simonovskii

monastery and refusedtoholdservices,to protest against IvanIII’sinterference

in the consecration of the Dormition cathedral. Ivan had to come to him

before he would return. But when Gerontii repeated the tactic in 1483, it failed

to evoke the same response. Subsequently, rulers intervened more boldly

in internal affairs of the Church, Ivan IV especially so, but such acts still

resembled Byzantine notions of a harmony of spiritual and secular power.

Ivan IV shattered this image when in 1569 he had Metropolitan Filipp killed. It

was then remarkable that in 1590 a monk of the Solovetskii monastery wrote a

life of Filipp proclaiming him a saint, and used Agapetus’s words to condemn

Ivan for martyring him.

Time of Troubles

The Church found the Time of Troubles perplexing. Patriarch Iov, who had

helped Godunov become tsar, was deposed by the ﬁrst pretender. Reﬂect-

ing on this in 1606, the monk Terentii of the Kremlin Annunciation church

described a dream in which the Lord lamented that there was no true tsar,

patriarch, clergy or people in His ‘new Israel’.

When Prince Vasilii Shuiskii

overturned the pretender at the end of 1606, he selected Germogen (Hermo-

gen) as patriarch. Germogen was to lead resistance to the Polish occupation

of Moscow and crown Michael Romanov tsar in 1613. The careers of his rival,

Metropolitan Filaret of Rostov, and of Avraamii Palitsyn, the monk-narrator of

50 SGGD, vol. ii (St Petersburg: Tipograﬁia Vsevolozhskogo, 1819), pp. 94–103; Skrynnikov,

Krest i korona,pp.316–26.

51 Paul Bushkovitch, ‘The Life of Saint Filipp: Tsar and Metropolitan in the Late Sixteenth

Century’, in Flier and Rowland (eds.), Medieval Russian Culture, vol. ii,pp.29–46.

52 A. I. Pliguzov and I. A. Tikhoniuk (eds.), Smuta v Moskovskom gosudarstve (Moscow:

Sovremennik, 1989), p. 64.

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the ordeal of the Trinity-Sergius monastery during the smuta (Time of Trou-

bles), however, better typiﬁed the conﬂicted loyalties of prelates. Filaret had

been Fedor Nikitich, the doyen of the Romanov family, thus related by mar-

riage to Ivan IV. In 1600 Tsar Boris tonsured him to end his political life. The

ﬁrst pretender freed Filaret, making him metropolitan of Rostov; the second

pretender installed him as patriarch, a rival to Germogen. When his candidacy

collapsed, Filaret negotiated with King Sigismund of Poland to make Sigis-

mund’s son Wl

adyslaw tsar. Filaret was in a Polish jail when Russian forces

liberated Moscow and crowned his son Michael. Palitsyn, a failed serviceman,

became a monk no earlier than 1597 and in 1608 was cellarer of the Trinity-

Sergius monastery. Early in Michael’s reign, he wrote a tale of the smuta. Its

core was a description of a siege of the monastery, September 1608–January

1610, by the second pretender and the Poles. Authentic details, visions and mir-

acles, and an anti-Polish patriotism informed its narrative. Yet, during the siege

Palitsyn was in Moscow, intriguing to replace Shuiskii with Wl

adyslaw. For

a time he favoured Sigismund’s candidacy. The Polish occupation, however,

consolidated for ordinary folk a faith-based national consciousness. Konrad

Bussow, a German eyewitness, wrote that on 29 January 1611 commoners,

resentful of Polish mockery of their services and dishonour to their saints,

besieged them in the Kremlin. That spring, after the Poles forbade the Palm

Sundayritual, an angry crowd staged its version of the feast. What once was an

elite affair had become a popular celebration in which an ersatz tsar, symboli-

cally the humble Christ, led the Church, symbolised by Patriarch Germogen,

to the Jerusalem chapel of the Intercession church, a symbolic renewal of the

promise of salvation.

53 Konrad Bussov, Moskovskaia khronika, 1584–1613 (Moscow and Leningrad: AN SSSR,

1961), pp. 317, 320–1.

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There were signiﬁcant changes in the law in this period. First, it completed the

evolutionfrom a dyadic process to a triadic process.Second, it made signiﬁcant

progress in the shift from a law based primarily on oral evidence to one based

on written evidence. Third, it featured four major law codes, Sudebniki, which

were major advances over what Russia had known previously.

The medieval legal compilation, the Russkaia pravda, which was initiated

in 1016 and was completed in the 1170s, remained the ‘fundamental law’ of

Russia through to 1549. What follows is a summary of the provisions of the

Pravda.

This will be used for comparison to illustrate the evolution of middle

Muscovite law, as the era of the Sudebniki is sometimes called.

Russkaia pravda

The Pravda began as a court handbook to facilitate the protection of the people

of Novgorod against mercenary Viking oppression. Accretions added around

1072 by Iaroslav’s sons, probably based on estate codes, were motivated by

an attempt to protect representatives of the princely administration and their

property with sanctions of various ﬁnes for homicide or theft or destruction

of princely property. The so-called ‘Statute of Vladimir Monomakh’ (1113–25)

dealt particularly with debt. Accretions added during the reign of Vsevolod

around 1176 included a ‘slavery statute’ (in which it was observed that a slave

was not an animal, but had human characteristics – ‘a to est’ ne skot’), plus

articles on court procedure, penal law and inheritance.

1 The literature on the Russkaia pravda is enormous. The fundamental edition remains the

three volumes edited by B. D. Grekov et al., Pravda russkaia (Moscow and Leningrad: AN

SSSR, 1940–63). The best translation into English is by Daniel H. Kaiser in his The Laws

of Rus’ – Tenth to Fifteenth Centuries (Salt Lake City, Ut.: Charles Schlacks, 1992), pp. 14–40.

My favourite article is L. V. Cherepnin’s ‘Obshchestvenno-politicheskie otnosheniia v

drevnei Rusi i Russkaia pravda’, in A. P. Novosel’tsev et al., Drevnerusskoe gosudarstvo i ego

mezhdunarodnoe znachenie (Moscow: Nauka, 1965), pp. 128–278.

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The Pravda was quite thorough on the matter of evidence. Witnesses could

be either an eyewitness (vidok) or character/rumour witness (poslukh). Direct

evidence, such as the testimony of a kidnapped or stolen slave or black

and blue marks left by an assault, was considered deﬁnitive. The confront-

ment/confrontation also produced good evidence. Various forms of divine

revelation were also considered possible evidence, such as the oath and ordeal

byiron and water.ThePravdawascompiled for an oralsociety in whichwritten

evidence was so sparse that it was not worth mentioning.

Inheritance norms were also relatively elaborate. Wills (typically oral) were

recognised. Guardianship was permitted. When there were no heirs, property

escheated to the prince. Wives could not inherit, and children of female slaves

could not inherit. A homestead was passed to the youngest son (presumably

as a reward for having looked after the parents) and could not be divided.

Crimes were those against property, plus arson, murder and assault. The

ordinary remedies were ﬁnes, but in addition banishment and exile were pos-

sible, as were conﬁscation of property, corporal punishment and execution.

The functions of law in the half-millennium Pravda era were the following:

to limit the circle of relatives who could get vengeance; to expropriate from

the relatives of the deceased for the prince the obligation to punish a killer; to

protect citizens from the prince’s retinue; to protect society against offenders;

to protect the lower classes from the upper classes; to preserve order; and to

establishharmony in a multi-ethnic society. Thelaw also took on the obligation

of protecting Christianity, preserving social hierarchy and male superiority

while protecting helpless women, and enforcing collective responsibility. Law

was also a centralising device, extending capital norms throughout the rest

of Rus’. The law tried to support institutions of private property and protect

commerce and business. One of the main functions of law was to provide

ﬁnancial support for ofﬁcialdom and, in a minor way, maintain the army.

Finally, like all law everywhere, the Russkaia pravda served as a device for

resolving conﬂicts, regulating compensation for damages, and creating a more

humane society – replacing the law of the jungle. Below this will be contrasted

with the functions of middle Muscovite law.

The sources of the Russkaia pravda have been debated for centuries, with

no resolution. Some have looked to Byzantium as the source of inspiration of

the Pravda, but in fact not a single article in the Russian code can be traced

to a Byzantine document. Scandinavian law might be another source.

The

2 The late Professor Oswald Prentiss Backus told me shortly before his death that he had

discovered on an island in the Baltic a volume which might have been a Scandinavian

prototype for the Russkaia pravda, but I have heard no more of this since his demise.

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logical solution to this problem seems to be to assign authorship of the Pravda

to the East Slavs themselves. When problems arose, they knew how to solve

them. They could not read Greek, Latin or Swedish, so had nowhere to look

for precedents and solution but within themselves.

Another hold-over from Kievan Russian law into this period was Church

law. Two documents allegedly from the beginning of the eleventh century

must be mentioned. The ﬁrst was Vladimir’s Church Statute.

An elegantly

simple document, it proclaimed a few universals that lasted down into the

early modern period. One was that ‘Church people’ were not subject to state

legal jurisdiction. ‘Church people’ included not only the obvious folk such

as metropolitans, bishops, monastery elders, monks and priests, but also soci-

ety’s helpless, such as widows, beggars, wanderers, freedmen and the like. The

second document was Iaroslav’s Church Statute, which gave the Church juris-

diction over family law and numerous aspects of communal relations, what

sometimes has been determined a usurpation of communal law.

The latter

was quite complex, and not destined to last very long. It was soon replaced

by the Rudder or Pilot’s Book (the Kormchaia kniga), translations into Church

Slavonic of the Byzantine Nomocanon, the Church law.

The Rudder began to

be used in the last quarter of the thirteenth century and assumed the areas

of jurisdiction that earlier had been claimed by Iaroslav’s Church Statute.In

addition to the Nomocanon, the Kormchaia kniga contained Byzantine civil law,

such as the Ekloga and the Procheiros nomos.

Perhaps the major evolution between the Russkaia pravda and middle Mus-

covite law was that the legal process changed from a dyadic one to a triadic

one.

The dyadic legal process is a feature of societies that are largely con-

sensual with minimal government. In such societies ‘the state’ offers judicial

conﬂict resolution services for a fee. However, ‘the state’ has no or minimal

interestin the judicial process other than the fee it generates for its ofﬁcial. ‘The

state’ does not originate or prosecute cases, has no or few enforcement mech-

anisms, and has no jails. In such legal processes the aggrieved in both ‘civil’ and

‘criminal’ cases (the distinction did not exist) initiates the case as plaintiff, and

the defendant is obliged to respond. The entire process is accusatorial, with

3 Kaiser, Laws of Rus’,pp.42–4.

4 Ibid., pp. 45–50.

5 Denver Cummings (trans.), The Rudder (Pedalion) of the Metaphorical Ship of the One Holy

Catholic and Apostolic Church of the Orthodox Christians (Chicago: Orthodox Christian

Education Society, 1957).

6 Daniel H. Kaiser, The Growth of the Lawin Medieval Russia (Princeton: Princeton University

Press, 1980). For much greater detail on the dyadic-triadic evolution, see his unpublished

Ph.D. dissertation, ‘The Transformation of Legal Relations in Old Rus’ (Thirteenth to

Fifteenth Centuries)’, University of Chicago, 1977.

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the ‘plaintiff’ bearing the entire burden of carrying the case forward. If the

defendant fails to respond, he/she loses the case by default and must pay the

ﬁne decreed by the ofﬁcial acting as judge. Failure to pay the ﬁne in such a soci-

ety resulted in enslavement or banishment. The twenty-ﬁrst-century model of

dyadic law is international law and the World Court, where potential litigants

appear only if they want to.

The triadic legal process is much different. The state has an interest in

the case, and has ofﬁcials to move the case along. The state itself is likely

to initiate ‘criminal cases’, and, as the process becomes inquisitional, the ofﬁ-

cial/judge sometimes assumes the role of prosecutor. In a ‘civilcase’, the plain-

tiff must press his case, but the judge is not obliged to be a neutral arbiter. The

state is present to enforce verdicts. The jail, which appeared in Russia around

1550, becomes an important instrument of the process. Besides imprisonment,

other sanctions supplement ﬁnes, such as corporal and capital punishment and

mutilation.

The evolution from the dyadic to the triadic legal process was a gradual

one. The consensual society gradually disappeared as Gemeinschaft yielded to

Gesellschaft.ThisprocesshadalreadymadeconsiderableheadwayinNovgorod,

a city of at least 20,000 people before it was annexed by Moscow in 1478;in

Pskov, a city of perhaps 15,000 people before it was annexed by Moscow in

1510; and in Moscow itself, which purportedly had 40,000 houses in the ﬁrst

half of the sixteenth century. The ‘great break’ in the move to the triadic legal

process occurred in the 1520s, when law and order broke down throughout

much of Muscovy, and what remained of the consensual society went with

it. Numerous petitions were submitted to the capital demanding that action

be taken against crime. In response, Moscow sent agents to the provinces to

stop the crime wave. This brought the state directly into the criminal process

in a way inconceivable earlier. From this time on the triadic process reigned

supreme.

This was preceded by another series of events which had a major impact

on the course of the law. At the end of the ﬁfteenth century and in the ﬁrst

decade of the sixteenth century, three independent strands came together

whose second-order consequence had a lasting impact on Russia.

The ﬁrst

issue was the dynastic controversy over who should succeed Ivan III, which

was resolved at the end of the ﬁfteenth century in favour of the son of his

second marriage, Vasilii III. The second issue was that of the so-called Judais-

ers, a group of dissident clergymen who adhered to many of the tenets of the

7 Aleksandr Ianov, Rossiia: U istokov tragedii 1462–1584(Moscow: Progress, 2001), pp. 122–53.

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Old Testament but also represented advanced knowledge in Muscovy. Their

adherents worked their way into the entourage of Ivan III, but were ﬁnally

purged at Church councils at the outset of the sixteenth century. The third

issue involved the role of the Russian Orthodox Church in the world. Since

the middle of the fourteenth century the Church, and especially monasteries,

had been accumulating lands, and by 1500 owned close to a third of all the

populated land of Muscovy. This brought the Church in a major way into ‘the

world’,whichoffendedpurists who believed that the role of the Church should

be the salvation of souls, not the accumulation of property. The camps were

divided into non-possessors/non-acquirers and possessors/acquirers. The for-

mer were also called ‘the trans-Volga [north of the Volga] elders’ and were led

by Nil Maikov Sorskii. Their major antagonist was the elder of the Voloko-

lamsk monastery, Iosif (Ivan Sanin). The trans-Volga elders were defeated at

the same councils which liquidated the Judaisers. Iosif was the victor in all

three contests: the dynastic succession, Judaiser controversy and the issue

of Church lands. Out of gratitude to Ivan III and Vasilii III, over the course

of several tortured years he reformulated teachings of the Byzantine deacon

Agapetus (ﬂ. 527–48) into the doctrine ‘in his body the sovereign is a man,

but in his authority he is like God’.

This Russian version of the divine rights

of kings underpinned Russian law and the monarchy down to its fall in 1917,

and was then taken up in another format by the Soviets. For our purposes

here, the Iosiﬁte slogan, which was widely debated at the time and known to

many people, served to legitimise Moscow’s formalisation of the triadic legal

system.

Before commencing the discussion of the Muscovite Sudebniki, a few words

must be said about two other previous Russian law codes, the Pskov Judicial

Charter (120 articles compiled between 1397 and 1467) and the Novgorod Judicial

Charter (42 articles compiled sometime shortly after Moscow’s1478 annexation

of the republic).

They represent the best of north-west Russian law of the

8 Ihor

Sev

cenko, ‘A Neglected Byzantine Source of Muscovite Political Ideology’, Harvard

Slavic Studies 2 (1954): 141–79.

9 Richard Hellie, ‘Russian Law From Oleg to Peter the Great’, the Foreword in Kaiser’s

Laws of Rus’, pp. xxiii–xxiv. Kaiser’s translations of the two codes can be found on pp. 66–

105. Other relatively recent editions can be found in PRP, 8 vols. (Moscow: Gosiurizdat,

1952–63), vyp. ii: Pamiatniki prava feodal’no-razdroblennoiRusi XII–XV vv., comp. A. A. Zimin

(1953), pp. 210–44 and 282–381 and RZ, 9 vols.(Moscow:Iuridicheskaia literatura, 1984–94),

vol. i: Zakonodatel’stvo Drevnei Rusi, ed. V. L. Ianin (1984), pp. 299–389.ThePskov Judicial

Charter (Pskovskaia sudnaia gramota) will henceforth be cited as PSG, and the Novgorod

Judicial Charter (Novgorodskaia sudnaia gramota)asNSG. The Muscovite Sudebniki can be

found in Sudebniki XV–XVI vekov, ed. B. D. Grekov (Moscow and Leningrad, AN SSSR,

1952) and in other collections such as PRP and RZ. They are cited henceforth as: 1497

Sudebnik; 1550Sudebnik, etc.

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time, which was considerably more advanced than the contemporary law of

Muscovy.

The Pskov Judicial Charter

The Pskov Judicial Charter had its origins in the Russkaia pravda,inlawsby

rulers Aleksandr (r. 1327–30, 1332–7) and Konstantin (r. 1407–14), in decrees

of the popular assembly (veche) and town ruling council (gospoda), and in

Pskov customary or common law. It was one of the most important sources

of the Muscovite Sudebnik of 1497. In Pskov the transition from dyadic to

triadic law was under way, but by no means complete. The transition was

evident in the ofﬁce of the ‘police ofﬁcer, bailiff, guard’ (pristav, from the verb

pristaviti – to bring, to deliver, to issue an order, to appoint), who had the

obligation to investigate criminal offences. The plaintiff was expected to be

with him during an investigation, when he was his assistant in prosecuting

his case.

He represented society, the community and the political authorities

whoappointed him (the prince andthemayor)whenhewitnessedagreements,

investigated criminal offences, arrested a thief or debtor to enforce appearance

in court and when he served as executioner.

If it is accurate to generalise that the Russkaia pravda concentrated on pro-

cedural and criminal law, then by contrast one may state in summary that the

Pskov statute was concerned primarily with civil norms: contract, property,

inheritance and the legal status of the peasant.

Because landownership was almost irrelevant in Kievan Rus’, the Pravda

hardly distinguished immoveable from moveable property. Apparently urban

property conﬂict resolution was not deemed sufﬁciently signiﬁcant to codify.

The situation was obviously different in Pskov, where the distinction between

immoveable property and moveable property was sanguine.

By the ﬁfteenth century the hereditary estate (votchina) was well established

in Pskov. The law distinguished various forms of hereditary estate on the basis

of who owned it (princely, monastic, boyaral, clan) and on the basis of how it

hadcome into being(purchaseor grant from theruler).Pskov lawtheoretically

permitted the sale of any property, moveable or immoveable. Land, however,

was rarely a commodity in late medieval and early modern Russia because

members of the seller’s clan had the right to inherit the estate and could buy it

back almost without any restrictions. This greatly inhibited the mobilisation

10 PSG,arts.67, 98.

11 PSG,arts.34, 98.

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of land because the market was suffocated by the redemption restrictions. In

Pskov a land sale contract had to specify the last date on which a seller or his

heirs could redeem a hereditary estate.

This was a modest concession to the

market, but fundamentally the interest of the clan triumphed. Even the seller

himself could redeem immoveable property unless he foreswore the right to

do so in his sale document. The clan also could sue for the return of land

willed to outsiders without its consent. Individualism was almost unheard of

anywhere in Russia until after the mid-seventeenth century, but property law

was just another factor hindering the development of individualism, in this

case in the interest of the clan as a collective.

From a legal economic history perspective, an interesting provision allowed

the possessor and tiller of land to gain ownership of the property after four

or ﬁve years. Even if an owner had written documents on such land, he lost

it if he did not use it for half a decade.

This did not apply to forests, where

written documents were supreme. The goal here was to keep agricultural land

in production. If an owner failed to do so, he could lose it to someone who

would. This provision was frequently resorted to in suits.

The law of Pskov strove to protect the interests of owners. A sale made

while drunk was void should either seller or buyer challenge it when sober.

A seller had to guarantee that the item being sold was not stolen.

Almost

astonishinglyadvancedwas the declaredright of a buyer to voidthe transaction

if the item was defective.

The Russkaia pravda stated that a ﬁnder owned

whatever he had found, but Pskov legislation provided for the loser to sue the

ﬁnder, who had to prove that he had not stolen the item in contention.

This

evolution made sense, because in Kiev documentation was nearly absent and

unreliable oral testimony would have had to have been resorted to, whereas

Pskov had a much more sophisticated legal climate with the result that the

costs of protecting the rights of the owner were bearable.

The Pskov law of contract was the most sophisticated in this period. The

Pravda did not know written contracts, all were oral in the presence of wit-

nesses. Pskov, however, prohibited oral contracts for over a rouble.

Pskov

knew four kinds of contracts: (1) Oral. (2) A written document called a zapis’,a

copyof which was preserved in the Trinity cathedral archive. Such a document

12 PSG,art.13.

13 PSG,art.9.

14 PSG,art.114.

15 PSG,arts.46, 47, 56.

16 PSG,art.118, here a diseased cow.

17 PSG,arts.46, 47.

18 PSG,arts.30, 33.

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could not be disputed in court. (3) Another written document, the riadnitsa,

which was a record of monies paid, loans repaid, ﬁled in the Trinity archive.

This also could not be contested. (4) Something called a doska, etymologically

probably something written on a tablet or board, but by the ﬁfteenth cen-

tury a private document not ﬁled in the Trinity archive and something which

could be contested at trial.

None of this entered mainstream Muscovite

law.

Pskov provided a generally favourable legal climate for commerce, not

surprising in the most ‘Western’ of the cities of Rus’. Storage, pawns and loans

were all protected.

Interest on loans (imanie) was legal and no maximum was

prescribed. Disputes were to be litigated before the ruling council (gospoda)of

Pskov, which is assigned judicial responsibilities in many of the other articles

of the statute.

Labour law was introduced in Pskov. A worker (naimit – ‘hireling’) explicitly

had the right to claim his wages. He was a free man who entered an oral

contract with his employer whom he could sue. He also could leave whenever

he wanted and get paid for the work done. The worker had to announce

publicly his claims against the employer.

Russian inheritance law became more sophisticated in the journey from

Kiev to Pskov. In the earlier period wills were oral, and they still could be in

Pskov. However, whilestill vital or on his deathbed in thepresenceof witnesses,

a man could give away any moveable or immoveable property to whomever he

wanted and that was a legal transaction.

However, written testaments came

to be preferred, and they could be secured by depositing a copy in the Trinity

cathedral archive. When a wife who owned land died, her widower husband

could keep her property until his death or remarriage, at which time it reverted

to her family. The same applied for a widow. Relatives could claim the clothes

of a deceased wife if the widower remarried or of a deceased husband and

the widower or widow was obliged to hand them over. Neither was required

to take an oath that there were no more clothes. A widow could claim her

moveable property from her father-in-law or brother-in-law and they were

obligated to hand it over.

19 PSG,arts.30, 31, 32, 36, 38.

20 PSG,arts.16, 17, 29–32.

21 PSG,arts.73, 74.

22 PSG,arts.39, 40. Moscow was less favourable to the worker, who lost all his wages if he

failed to fulﬁl the contract by leaving early: 1497 Sudebnik,art.54, 1550Sudebnik,art.83,

1589 Sudebnik Short,art.16, 1589 Sudebnik Expanded,art.148.

23 PSG,art.100.

24 PSG,arts.88–91.

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