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.[187] The 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.3 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 society's helpless, such as widows, beggars, wanderers, freedmen and the like. The second document was Iaroslav's Church Statute, which gave the Church jurisdiction over family law and numerous aspects of communal relations, what sometimes has been determined a usurpation of communal law.4 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.5 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 Muscovite law was that the legal process changed from a dyadic one to a triadic one.6 The dyadic legal process is a feature of societies that are largely consensual with minimal government. In such societies 'the state' offers judicial conflict resolution services for a fee. However, 'the state' has no or minimal interest in 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 mechanisms, 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 ofthe LawinMedievalRussia (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.
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 society 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 official/judge sometimes assumes the role ofprosecutor. In a 'civil case', the plaintiff 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. This process had already made considerable headway in Novgorod, 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.[188] 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
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', which offended purists 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 andpossessors/acquirers. The former 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 Volokolamsk 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'.[189] 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.
187
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
188
Aleksandr Ianov,
189
Ihor Sevcenko, A Neglected Byzantine Source of Muscovite Political Ideology',