2.3. Features of the reception of the Roman Law in pre-revolutionary Russia.

The Roman Law reception in Russia, first of all, is connected with the Byzantian empire which has played the important political and social role in formation of the Russian statehood. Researchers notice, that in the Byzantian empire in sphere of the state life there was a domination strictly tsezarizma, full limitlessness, irresponsibility before laws of the imperial power; in right sphere – the legislation quite developed, inherited from an epoch of the greatest prosperity of the Roman Law; in sphere of a life religious - firmly and highly put church operated numerous and formed clergy, having enormous influence on state affairs. [264] thus, the certain continuity of statehood is traced. Apparently, influence of Byzantium on a legal life of Ancient Russia is connected with three major factors: with successful military campaigns to Byzantium, the developed commercial relations and Christianity acceptance as dominating religion.

Acquaintance of ancient Slavs to the Roman Law followed from the fact of contact with huge number of "civilised" slaves from Byzantium, received as a result of military attacks. Numerous Byzantian sources VI-VII testify to their presence in territory of the slavic state centuries They contain data on a capture Slavs in a captivity of women, children and efficient men.

Researchers consider, that such structure of slaves specifies in presence in a slavic society of two compound groups of the slavery which has arisen from capture and the further adaptation in matrimonies of women and children, on the one hand, and after adult men - with another [265]. Accordingly, if to assume, that cultural-legal level at Slavs was more low, than at the Byzantian slaves won by them constant contact with them and their assimilation (full or partial) in territory of slavic tribes can result and leads to introduction of elements of foreign culture, including legal culture. Daily dialogue with numerous slaves from developed, in comparison with the Old Russian state of the countries allowed to compare legal institutions of the various countries to the and success of their action. There was a possibility of the reception of legal customs which approached to the right of an Old Russian society. It was promoted especially by the soft policy of the slavic people in relation to slaves.

Acquaintance of Slavs to the Byzantian right occurred as well in connection with getting stronger trading and political connections to what testify remained dogovory. Constant brisk communications with the Byzantian empire were fruitful for the Moscow Russia. Constantinople served not only sosredotochiem mighty Byzantian culture, but also a place where Russian communicated, Greeks and southern Slavs. Russia appears one of the major suppliers of some goods which were of great importance in the Middle Ages for Constantinople [266]. Researchers assume, that under the Byzantian insisting in the contract (6453/945г.) it has been brought Roman quadrupli on which open larceny was punished four times, i.e. the stolen thing and moreover in punishment the threefold price of a thing [267] came back.

But the reception is possible only then if there was a legal system requiring such reception. The first written sources of Ancient Russia show existence of the debugged developed legal system. For example, the first annalistic mention of guardianship institute concerns to 879г.: «Umershi Rjurikovi, will betray reigning Olgovi from a sort to it sushcha, vdav to it the son of the on rutsja Igor, byst bo dshchetesi velmi», i.e.

Rjurik defines to the son of the trustee from among relatives. The Russian Truth defines (item 99), that «if after death of the father in a family there were small children and mother married again their trustee appoints one of close relatives or the stepfather» could be it.

The fact of the reception became possible and because of acquaintance to various legal sources of the foreign right. By a science it is established, that in Russia, since Yaroslav Mudrogo's times, there was a certain powerful translational centre. Letopisets noticed, that «… and to books (Yaroslav Mudryj) prilezha and esteeming e it is frequent in noshchi and at the bottom; and sobra copyists mnogy, and perekladashe from the Greek on slovensko the letter, and spisasha books mnogy, and the list, imizhe pouchajushchesja return to people naslazhajutsja uchenja divine … It is great bo happens polza from the doctrine book, books bo kazhemi and uchimi esmy ways to a repentance, wisdom bo it is found and vzderzhane from sloves the book; se bo an essence reky, napajajushchi the Universe, se the essence ishodishcha wisdom, books bo is neischetnaja depth …». [268]

This mentioned letopistsem "centre" carried out activity on a translation of the books not only with Greek, but also both from Latin and with Hebrew [269]. In the literature it is supposed, that this translational school represented a known circle of the persons knowing the Greek language and widely-read in slavic writing, which kn. Yaroslav also charged to do transfers [270]. The Fact in evidence, that in an environment of the prince has been made Old Russian transfer of the newest the then editions of the full text of the Eclogue (Ecloga privata) [271]. The remained literary transfers testify To active work of this translational centre. Researchers consider, that ancient slavic translators, in particular, Russian translators during an epoch of the Kiev state, were not limited to transfers of the Greek texts as classical, and especially rannehristianskih and Byzantian, but ventured to translate and from Hebrew language, and not only bible masoretskie the texts written with oglasovkoj, as, for example, "Esfir", but also numerous enough talmudicheskie products. [272]

Quality of the transfers which have remained up to now, is highly estimated by modern researchers. So, known Russian researcher D.S.Lihachev considers transfer of "History of Judaic war» Joseph Flavija, executed not later beginning XIIв. In the Kiev Russia, as the certificate not only high level of translational art, but also Old Russian art in general [273].

The volume of activity of the centre is unknown, but, probably, numerous books of legal character were translated. In it specify separate researches. So, A.J.Efimenko considered, that Yaroslav, by means of reading like Christianity, at the same time and rimsko - the Byzantian concepts about a political system and the duties as Christian governor. It has found reflexion in the Russian Truth. «The Russian Truth» - the arch of legal statuses, a part borrowed from the legal concepts dominating in a life, a part from the Byzantian right [274]. However, as it has been shown in the paragraph, the reception devoted to concept, all phenomena, concerning receptions, always caused and will cause ambiguous estimations of a society in connection with the present ideological factor. Therefore in a science there is rather cautious relation to revealing of the reception because of charges in «not patriotism».

Accordingly, the conclusion of researchers about influence of the West on Russia so still long before that time when in the Moscow state the urgent requirement «was felt to cut through a window to Europe» doors in Russia is represented obvious kept widely opened for the West European influence [275].

But the main reason of the reception of the Byzantian (Greek-Roman) right is Christianity acceptance as dominating religion. As a matter of fact, Christianity acceptance has led to transformation of Russian earths into periphery of the Byzantian world. Diffusion or a transfer of experience of government and legal an expert of regulation of social processes Byzantium to east Slavs has begun earlier, in IX century when by empire have been concluded dogovory with the tribes which have received a tribute from "Greeks", and in exchange, guaranteeing calmness of its borders [276].

For Russia it there was a "crisis" model of the reception. The historical science investigated a course of this crisis which has been connected with search of ideology of the union of the slavic states. The initial exit from crisis was unsuccessful. Vladimir's basic pagan "reform" has ended with a failure, as well as attempts previous it to proclaim Peruna the Supreme deity of all east Slavs. It is supposed, that the main reason for that was historical irreversibility of decomposition rodoplemennogo building, that did inevitable falling of the union of the unions of tribes under hegemony of Kiev. Signs of disintegration of the allied organisation have appeared in second half Hv. Definitely enough. Besides, the defects interfering an object in view consisted in the reform. Basic of them - leadership Peruna over other gods. Perunov it was necessary to impose a cult to allied tribes therefore pagan "reform" spent of Kiev, has poured out in religious violence of "Russian earth» over slovenami, krivichami, radimichami, vjatichami and so forth that has caused a wave of the Antikiev performances. Hence, instead of a unification "reform" has led to contentions and strain of relations of Kiev with tribes subject to it. Then Vladimir, finding new means for rallying of the interbreeding union, for the statement of dominating position in it, first of all, the Kiev social top, addresses to Christianity. [277] earlier we were defined with the reception maintenance owing to what it is impossible in crisis model without social crisis. Thereupon, the sight of some researchers is represented simplified, that «the christening of Russia has taken the form of sudden and painful revolution from above». [278] From the same positions the opinion of Century of the Item is represented erroneous Orgisha about absence of crisis of ideology before Christianity acceptance. He considers, that the Ancient Russia which has become by a field of the gradual wide appendix of Christian ideals, was not in a crisis condition. It moved on a way of social and economic and cultural transformations, solved concrete state problems, and the question on acceptance of new belief was for it a question of the state necessity. [279]

For reception realisation "digestion" borrowed was necessary. And such "digestion" occurred in different forms up to 1917г. The Russian form of Orthodoxy with the religious-legal philosophy differing from the Byzantian model has been as a result born. Known Russian researcher XIXв. M.Hlebnikov, comparing the ideals of Christianity reflected in the literature domongolskogo of the period with existing then the validity, obosnovanno considered, that Christian ideals speak about contempt for the world, and in the valid life of this time the person cannot without fear go to the acquaintance for a dinner, not being exposed often to lose possibilities of an eye or even a life. Ideals speak about miracles which become belief, and actually the people plunder the Kiev temples, from revenge to kievljanam. Ideals speak about monastic asceticism, and in a life sensuality, polygamy, in the form of the union with the slaves, partly recognised as the law dominates. Ideals speak about contempt for the world blessings, and in all actions of princes the roughest egoism [280] is visible.

Researchers fairly notice, that the Christianity has softened and softened long time character of legal relations in Russia and in Russian empire in the tideway of the Roman Law theory. So, before the Old Russian state sharply there was the problem of slavery doing essential harm to customs of a society. Thereupon notice, that «a church rule» metropolitan John, following in the tideway of Byzantian (grekorimskogo) legislations, forbade to sell slaves from Christians in the "nasty" countries; otherwise subjected sellers to excommunication. Thereof, has entered into custom, that the orthodox cannot be the lackey at the person nekreshchennogo. Subsequently, it was forbidden by laws of tsar Michael Fedorovicha in Siberia and Astrakhan to buy or get for nothing the Tatar population and to send them to Russia. [281] thanks to this reception there was in Russia a stable "hand-written" right. The Byzantian church culture has led to formation of slavic writing, and the regular management based on following to stable and difficult religious canons, has demanded written fixing of a legal order in the country. One of the first sources of law in Russia steels dogovory with Byzantium — some kind of jus gentium Eastern Roman Empire. Further Russian princedoms began to accept and own written sources of law. The majority if not everything, from them contained direct loans from the right of the Byzantian empire (the Nomocanon, the Eclogue, prohirona and so forth, and even the selected heads of the Code, Digest and Short stories JUstiniana.

In a number of researches the regret appears, that Ancient Russia has apprehended not the pure Roman Law, and its Byzantian processing: «the Byzantian right conceded to the Roman Law from the point of view of the legallistic: its concepts, terminology were rather neopredelenny, are indistinct, had more competitive character». [282] However all reception of the Middle Ages was based on the Byzantian legislation of emperor Justiniana.

The question on the reception of the bible is curious is religious - rules of law, owing to Christianity acceptance. Originally, to some extent a role equivalent to the Roman Law, in Russia the rules of law fixed in the Bible [283] played. In the literature it is marked, as Russian common law received a reinforcement and development in "Scriptus", whence (along with monuments of the Byzantian legislation) on advantage new rules of law [284] were scooped.

Even at household level, at perusal of texts Shabby and the New testament, believers should like and like Hebrew legal philosophy.

But at an estimation of such household reception it is impossible to forget and that the Church constrained distribution of religious-legal knowledge. In general, the problem of reading of the Bible occupies one of the central places in «the Message of patriarchs of East Kafolichesky Church about orthodox belief» 1723г. Whether In this document on a question «All Christians should read the Scriptus?» - the negative answer basically is given: «to Read it not all are capable, but only what know how it is necessary to test the Writing to study and understand this … Not to everyone it is allowed to read without a management some parts of the Writing, especially antiquated. Without discrimination to allow unsophisticated reading of the Scriptus the same means, as to babies to offer the use of strong food». Probably, proceeding from these reasons in Ancient Russia though and not in such open form as in the Catholic countries times distributed the voices, calling to forbid commoners to read the Bible in general. [285]

Propagation it is religious-rules of law in Russia encountered on obshcherasprostranennoe ignorance of clergy and its low authority on a society. Contemporaries still in XVIIIв. It was noticed, that priests suffer a beating from secular persons, even having at themselves in daronositse sacred gifts (1777г). In the middle still XVIIIв. Clergy still punished birches; decrees 1767 and 1771г. The synod has prohibited corporal punishments of priests and deacons in «spiritual commands» ordering to correct their dismissal from the income and arrival. In 1819 and 1821г. Are selected from ecclesiastics of a subscription to keep itself in sobriety and good conduct, to shun defects, in particular drunkenness. The Russian clergy was then almost with gross spelling mistakes - in 1786г., in the Kazan diocese it has appeared from clergymen «faulty in reading and not able absolutely to read under the book, to write and sing» - 381 persons, "scientific" priests was very little; in 1789г. Not all priests knew a catechism … »[286].

Therefore the assumption is represented doubtful, that conductors of Christian belief in Russia (at the beginning - Greeks and natives of southern Slavs) attached a society to an initial element of the Byzantian right. [287] besides, the clergy in Russia at first was rather small. So, annals 1052г. Fixs exclusively as the important event arrival the same year from Greece to Russia three choristers with the families. [288] accordingly and influence of the Byzantian spiritual element in Russia was not considerable.

However, despite such problem with clergy, the Russian right owing to the Christianity reception practically completely borrowed positions Roman and the christian law, having entered them as the operating branch of law, regulating family legal relations. Formation of the Old Russian family law contacted acceptance of Christianity and with direct influence of the Byzantian right and traditions. Marriage began to be considered as sacrament, as «muzhevi both the wife a combination and life in all life divine and human truths dialogue» which purpose was human race continuation. [289] owing to this factor, neudivitelen the fact, that in decisions about guardianship in the Russian Truth is traced the strongest influence of the Byzantian right [290].

The Roman Law reception was carried out within the limits of introduction of Christianity and by means of distribution of the spiritual literature. A vivid example is active distribution in territory of ancient Russia Kormchej of the book. It represented Greek Nomocanon (prohiron) which was applied up to XIXв. Inclusive. In a basis of this legislative monument the Byzantian legislation of emperor Justiniana is necessary. In this connection researchers noticed, that at comparison of separate places prohirona with legislation JUstiniana it appears, that editors of the first often used the best manuscripts, than what lay in the basis of editions of the Greek constitutions of Code JUstiniana and the Greek Short stories [291].

Besides, into the Nomocanon maintenance has entered: the Code of laws, systematised by patriarch Constantinople John Sholastikom in VIв., the Eclogue of emperors of the Lion III and Konstantin V, containing norms of the Roman civil law; the Nomocanon of patriarch Fotija (IX), the Judgement law; the Code of laws of emperors of the Novel and Konstantin (Xв.); the Code of laws of emperor Alexey Komnena; the Code of laws about marriage; Vast Russian However, Canons of princes Vladimir and Yaroslav etc. Besides listed, the considered certificate included also the unusual legislation on the character of Catholic church. «It is necessary to be surprised only to that is the researcher of the ecclesiastical law M.Gorchakov exclaims, - that in structure Kormchej of the book and sources of the orthodox ecclesiastical law there was a Bull of daddy XVIIв.». In its opinion this fact could occur casually and only owing to uncertainty of an origin. [292]

In general, the great value of this source admits the literature. J.N.ShChapov characterises it as the Byzantian code borrowed in the slavic countries, both representing the fullest and convenient for using, and also the most widespread collection of the ecclesiastical law in the newest processing IХв. [293]

The mixed character of a considered source allows researchers to speak about coexistence in this collection of several legal systems among which the East Roman Law took the important place along with Old Russian princely and the ecclesiastical law. [294]

According to researchers of the Old Russian right, Kormchaja expanded an outlook of legal concepts, has accustomed to erect the facts in concepts; there are new technical legal expressions. [295]

The Nomocanon maintenance, in turn, was reflected in the maintenance of the Code of laws 1497г., which also in many respects began to duplicate positions of the Byzantian right.

In the literature the fact, that from the moment of Christianity acceptance in Russia also is underlined, the government constantly searched for acknowledgement of the authority as the legislator in Christian philosophy and to it was direct is connected. In it the direct connection of concept of a kingdom with concept of the law, found the legislative embodiment in the Old Russian right is especially allocated. The most outstanding representatives of Old Russian intelligency - Russian scribes repeatedly repeated and interpreted bible words about «the just tsar», «that not nadmevalos its heart before its brothers and that it did not evade from the law neither to the right, nor on the left: that long years prebyl on a kingdom it and its sons …» (Vtorozakonie, 17. 20) [296].

Researchers mark original mentality of Russian people in relation to the tsar and its laws. neotemlimym representation about a great sovereign as about some kind of true in the last resort was an element of national representations about the tsar. It was expressed in the formula: «It is right there is a truth from the tsar».

Embodiment of these sights it was right chelobitja to the tsar whom inhabitants of the Russian state constantly actively used. In general aspiration of many Russian people XVIIв. In any disputable situation, irrespective of its gravity, «to ask humbly a sovereign», it has been connected with representation about the tsar as about the guarantor of a public order. The imperial reading and writing or the imperial decree could not be perceived by mass consciousness in XVIIв. As wrong, erroneous. If in them any injustice was found out, people could explain it to that this reading and writing - counterfeit, false. Existed also more exotic variant of such explanation - the assumption that the "wrong" reading and writing is sent not from the tsar, and from line. During all XVIIв. The tsar was in representation to Russian people sacral value of the highest value conceding only to the God. As source for these representations in itself Byzantian theories, and definitely perceived, understood, and sometimes the official state ideology perverted by the national environment, which element especially in Alexey Mihajlovicha's board served not, there could be those or other ideas borrowed Greeks. Thus a part of national sociopolitical representations was only that corresponded to them basically [297]. Thus, there was "digestion" by the national environment of religious-legal philosophy of Christianity.

Same "digestion" has found reflexion and in introduction on Russian soil of the Christian concept of the property right, making the strongest impact and on a modern Russian civilisation. In general it is expressed Fomy Akvinsky's by statement, that only the God - the Mister of all things. Western theologian A.Rausher considers this thought in the spirit of the bible certificate that all created belongs to the God. For this reason the person cannot be the primary proprietor, and only operating, the trustee of the property blessings entrusted to it. Thereby simultaneously it is supposed, that the person has not the right to dispose of these blessings on the whim and furthermore to destroy them. It, on the contrary, urged to concern them with special responsibility [298]. Catholic church in 1981г., establishing crisis of Christian outlook, has reflected its danger in the encyclic «Laborem exercens». Daddy John Paul II has noticed, that “the church doctrine never understood the property so that it could become the reason of social contrast in relation to work. The property is got first of all by work and that it served work”.

The Russian legal outlook always adhered to this principle. So, peasants in pre-revolutionary Russia basically did not consider the landowner as the proprietor. In 1917г. As consequence of this outlook the hearing, that to become the proprietor of the ground area it is necessary to destroy the "" landowner physically has been born. Modern Russia also tests similar problems. A society not priemlet results of privatisation and the other similar "lawful" phenomena. There can be in it a source of "legal nihilism”? But it is necessary to recognise, that the modern Russian society ceases to resist to a right arbitrariness. There are prophetical words Dzhuletto Keza: “ The third Rome, or is more true, the country applying for this title, turns off the banners. The first has fallen under blows of hordes of the barbarians, the second - under blows of the East which since a birth impregnated it. This Rome is destroyed before our eyes by the West. Unique difference from two others consists that falling is made much faster. And without fight. Russia with the hvalennoj spirituality is declined with arrival of an avaricious kingdom of a pragmatism, success and materialism ”[299]. And it is final A.S.Panarin's rights, noticing, that the revolution, capable to be reflected in destiny of the Russian intelligency as a whole is before our eyes made. Having passed zapadnichesko-liberal training and having understood the market in the spirit of the theory of" natural selection ”, the intelligency has dared to give up degraded and offended in the credit of moral and historical trust. Prevalence is received by the point of view according to which poverty and humility is certificates not sanctity and izbranstva, and carelessness and isolation. Sustained defeat appear a worthy fate. [300]

Idealisation of medieval relations is traced in works of researchers in the following. So, V.I.Karpets considered, what exactly at this time the law was obligatory for all: the people, «being swept aside by will», were declined under the power of will of the higher from which the tsar proceeds, its elect. But also the tsar does the same. « Heart tsarevo in rutse Divine »(Parables, 21,1) and deviation from the law deprives the Supreme power of any sense and the justification. With concept the law inseparably linked a canon, that is the main rules of a life of church and olden time - custom in secular area. To"olden time"referred every time at acceptance of the state decisions. Each new decision was"explanation", deepening of"olden time"which for Russia went from times Vladimirovyh, and concerning a world history which continuation esteemed Russian, - through Byzantium to acts of ancient tsars. The written right proceeding from the most Supreme power, was called as the charter, the decree, a lesson, codes of laws. Through Kormchuju the book Russian life includes understanding of a canon as bases of any charter, the decree, a lesson. Such combination of a canon and "olden time" meant, that the Supreme power, not being limited legally as itself was a source of the written right, has been limited is moral and is wider - ontologically concerning world life as a whole [301]. But, nesmotrja even on such idealisation of the legal validity, positive influence of Christianity on a society and the state has led to exclusive event for the Russian history: Ivan Groznogo's to attraction to tserkovno-legal responsibility. Under the decision of the Cathedral of 23 hierarches of Russian church in 1575г., it has undergone to condemnation and should pass an open repentance for the fourth marriage within three years. [302]

Crisis of tserkovno-legal outlook was issued to 1767г., when the decree forbidding to church attendants to make out the complaint and petitions of peasants on the owners has been taken out. The priest has ceased to be the defender of the parishioners, but, on the contrary, has been obliged to inform on them, breaking secret of a confession. The mortal blow leading at first to writing of obscene fairy tales about priests, and then - in 1917g. - and to physical violence over them has been put prestige of priesthood. [303]

In general, researches notice, that with X-XvIiIv. Russian empire associated with two competing images - Rome and Byzantium. To Peter the Great as the basic model Byzantium, and itself imenovanie the Russian emperor served, "tsar", corresponded to its role of an orthodox sovereign, the trustee of the flock. However already from the end of XV century the Moscow tsars began to address and to the Roman sources which would confirm their equality with emperors of Sacred Roman empire and the western kings applying for the Roman origin [304].

The fact is known, that Ivan Groznyj considered itself precisely the descendant «the divine emperor of August» [305]. Besides, Ivan IV, proclaiming the "German" origin from Rjurika, approved, that is not "Russian". On an imperial board he explained the image of an eagle the consanguinity with August. [306] but he also with special pride mentioned also a title of the Kazan tsar [307] that gives the basis to speak about a certain symbiosis between the Byzantian and Tatar tradition.

Such tendency was extended in an antiquity and in the Middle Ages. Researchers notice, that Genghis Khan has left after itself the mythical legend about the origin: «Genghis Khan-skewbald Primogenitor a wolf, its destiny from a birth is predetermined by the Eternal sky, and its wife - fine maraliha». [308] West also did not lag behind this tradition. For example, in France to erect the sort to Karolingam became for Kapetingov a political and ideological problem of vital importance: to dismiss from themselves charge in usurpation, to remove the dynasty beginning in more remote past and, the main thing to establish a direct communication with Charles Velikim, with this figure mifologizirovannoj history which was used in own interests by Germans. [309]

Besides, researchers notice, that the big influence on assimilation of antique gods by the European historiography and genealogy was rendered by book Iakova Bergamsky «Supplementum chronicarum» where Jupiter was described as the historical tsar, Saturn, and Uranium were ranked as historical dynasties, both Vesta, and Kibela also, and Diana etc. In the Middle Ages develops the tradition erecting Germen and Frenchmen to Hector. Gerakl it was proclaimed a direct ancestor of the Burgundian dynasty [310].

If many West European monarchs erected the genealogy to characters of antique history, the Old Russian doctrine leaning against annals, differed the realism, - in Ivan's edition III it had no mythical lines which are brought in it later. [311] all aforesaid was necessary for a medieval society with a view of sakralizatsii the imperial power and the tsar. In the light of last events – canonizations of tsar Nikolay II, it is necessary to notice, that it has gone right.

With XVв. In connection with falling of the Byzantian empire the Russian leader began to be called as the tsar and the grand duke. The term "tsar" occurs on behalf of (surname) of ancient Roman emperor Guy Julia Caesar which has been apprehended by its successors, becoming an element of their title. Then this title has passed in the Byzantian empire, where as the Caesar (i.e. tsezarem) were called near relatives of the emperor. Such claim of Russian tsars on relationship with the Roman emperors was actively supported by orthodox church. It is known, that the Constantinople patriarch, confirming a title of the tsar in the reading and writing 1561г., has assimilated Ivan to IV Byzantian emperor: « The tsar and sovereign of orthodox Christians of all Universe from the East to the West and to Ocean ». Subsequently, Alexey Mihajlovicha Romanov's title included the name"sacred", entering into a title of the Byzantian emperor. [312] in October 1721г. Peter I has accepted an imperial title. This certificate should confirm also continuity of the power from heads of the Roman and Byzantian empires and lift the political status of Russia [313]. Researchers also notice, that acceptance of a title of the emperor by Peter the Great has led to an identification of Russia with pagan Rome, and the monarch - with image of the military leader - a triumpher, a force embodiment. Peter has found the models of monarchic board not in the Rome, and in representations about Rome, reached to it from the West. [314]

Thus, in the Russian state expanded the possibilities under the further reception of "the Greek-Roman right», expansion of orthodox legal philosophy and to introduction of the theory of the Roman Law in legal system.

Besides direct use of the Roman Law on boondocks of Russian empire (Ostzejsky edge, Poland, Bessarabia), use of positions of the Roman Law is traced at various stages of development of the Russian legislation. So, the commission which has prepared the project of Ulozhenija Alexey Mihajlovicha 1649г., used so-called «town laws, laws of the Greek Tsars» [315], i.e. the Byzantian legislation. Other example is duplication of the Roman gradation of age groups in the Russian legislation that is caused by desire of Empress Catherine II, to follow instructions of the Roman Law [316].

Besides, this Russian empress in every possible way showed acquaintance to the Roman Law doctrine, setting an example the court. So, in the well-known Order considered natural death positions, considering, that it consists of knowledge of the Creator, feeding, protection itself and desire to live with similar to. [317]

Researchers notice the fact, that composers of such legislative documents as Establishments for management of provinces, the Charter blagochinija used Roman Law terminology. [318]

Wide acquaintance to the theory and practice of the Roman Law of a society has occurred at Peter I.

In XVIII and the next centuries direct loans of texts of the western right by Russia have found simply enormous sizes. The Swedish right, and also the German, French, Danish laws has undergone to the reception first of all. Have been spent extensive kodifikatsionnye works, the legal technics that was expressed in is changed: finding by Russian right of the western branch structure, occurrence of numerous branches and the institutes, earlier not known to Russian right (bills and notes, regulations of the right to mining, the terms of partnership, new organizational forms of enterprise activity and so forth); a prevalence of the written regulatory legal act over other sources of law; transition from causal instructions to abstract-general provisions; replacement by the formal moments (the written form of the transaction, their registration and so forth) Traditional, archaic legal rituals (religious-symbolical certificates, before juridical facts carrying out a role), the written fixed facts over a testimony [319].

The cultural shock from introduction of the new was state-legal orders is so great, that in to. XVII — n. XVIII century in the country legends according to which Peter I was not "natural", and podmennym the tsar have widely extended. Ostensibly, it has been changed by Germans (at a birth, during travel for the sea, etc.). Peter — the German, i.e. the person "not clear", "crafty". Old Believers in general declared it antihristom, breaking century traditions [320]

The education system which has been entered into its board, essentially differed from the European formation by the aspiration to a practicality, expediency. « The fundamental principles of the European science which have been pulled out from those vital conditions thanks to which they did not lose the concrete sense in the West, and transferred in the form of pure dogma on the east, it has appeared too distracted for the Russian society few prepared for their perception; appendices received them for that in his eyes doubtless value. Being able not establish a close connection between the theory and technics, Russian people have concentrated the attention to this last, that gave to formation exclusively utilitarian character »[321]. Owing to it, L.A.Kasso's assumption is represented fair, that« most likely, malouspeshnost distributions of the Roman Law at us speaks those reasons which have prevented to take roots on Russian plains to classic languages, so for a long time already pronikshih in the European culture and passed together with it to America and even to Australia »[322].

However, despite it, concerning the Roman Law as subject matter the position of the Ministry of national education in 1885г has been officially expressed.: « The Roman Law is as much the fact, how many the theory as much given for the learning science a reality, how many developed to the higher degree of completeness and definiteness system of the legal concepts having at the heart of a life of the people on advantage state, created state not in abstraction, but actually general which, on death of the Roman people, has passed to the new people in two great kinds of the East and the West defined by its double relation to Christian church, begun new, nowadays continuing the development, to the historical world. The Roman Law operating as the world law, remains as general theory of law and serves as school of higher education for devoting not only to a judicial field, but also in general service to the state in the governmental business. In such reasons the Roman Law, both in the history, and in the system, should be the basic requirement of legal test and take an extensive place in faculty teaching »[323].

T.A.Alekseeva, analyzing system of teaching of the Roman Law in pre-revolutionary Russia on an example of the St.-Petersburg university, has come to following conclusions:

- Teaching was carried out by professorate of special chair of the Roman Law;

- In the curriculum was available two independent courses of history and dogma of the Roman Law;

- In the first course studied history of sources and institutes public and private law;

- The second year had also other name reflecting it the maintenance - Roman Law system;

- Subject of a course of dogma of the Roman Law is legislation JUstiniana or Roman (pandektnoe) the right operating in Germany still in the end of XIXв.;

- In a course of dogma of the Roman Law two parts - the general and especial were allocated;

- Traditionally teachers of the Roman Law trained in Germany where studied modern it Roman (pandeknoe) the right;

- As the Roman Law is the civil law theory, teachers showed scientific interest to civil law, and also to the theory (the right encyclopaedia);

- In the curriculum it has been presented not only the lecture form of training to the Roman Law, but also a practical training. [324]

V.A.Yushkevich noticed, that in training of Russian lawyers the special role was taken away to a comparative way: «… the method of comparative processing of Russian civil law with the right Roman is expedient and from the point of view of didactic: as our young lawyers at universities receive the theoretical bases of a civil science at Roman Law lectures this method communication between separate disciplines remains and the unity is reached at their studying». [325].

In 1830г. The major monument of the Russian legislation - the first Full Meeting of Laws in 45 volumes comprising laws from Ulozhenija 1649г has been published. On 1825г. At creation of this Code of laws of Russian empire, its "editor-in-chief" of columns Speransky admitted, that for achievement of "completeness" of the Code of laws he leant on the best samples of the Roman, French, Prussian, Austrian legislation [326].

As marks V.A.Letjaev, with process of creation of the Arch began to interfere «a lot of policy» (that once again underlines ideologichnost any reception). Ordering of the Russian legislation in 1832г. Should show ideology of Nikolaev "education" - «an eminence of the nationality». According to the circular of the ministry of national education 1833г. «The science of domestic jurisprudence will be full, true and modern when it will survey each sort of laws in all completeness of life, i.e. dogmatically, historically and philosophically …. And to be animated by uniform spirit of Orthodoxy, autocracy, a nationality». [327]

However about legislation JUstiniana M.M.Speransky responded extremely sceptically: «In a century of Roman empire advanced and close already to falling, neither in mind, nor in force of the government it was impossible on natural order to expect sensible and exact concepts about laws. The Roman laws, a monument of a long secular education and great legislative wisdom, in change of the decision and great legislative wisdom, in statement JUstinianovom represent razvalinu a magnificent building, in which hand of weak and ill-informed artists on good luck the diverse precious rests» are stuck together. [328]

Despite such external relation to the Roman Law, researchers notice as the fact, that at drawing up of the Code of laws of Russian empire the legislator was guided by the legislation of emperor Justiniana, but with necessary amendments from philosopher Bacon. [329]

Besides, the fact is admitted, that count Speransky was not limited to imitation foreign "samples" concerning the work plan, but that often legal statuses were simply translated from foreign codes and that, then, to these transfers decisions of the foreign legislation were adjusted. And this G.Barats explained contradictions, ambiguities, "sbivchevost", "mysteriousness" of the Arch and it is necessary to address for explanations to those foreign samples who inspired editors of the Code of laws. [330]

Modern Russian scientists consider, that when at Nikolay I there was a preparation for creation of the Code of laws as model for ordering the Roman Law system has been used and institutsionnaja, “on which basis legislation ordering in the European states was under construction”. [331] This opinion duplicates opinion of known Russian jurist XIXв. G.F.Shershenevicha who approved, that construction of the Code of laws civil Russian empire represents «close reproduction institutsionnoj systems» [332]. Other pre-revolutionary jurist V.I.Sinajsky [333] adhered to the Same opinion also. However this opinion was criticised by jurist XIXв. N.M.Korkunov. According to its opinion, the concept of codification and incorporation are borrowed by us the western lawyers, but those understand as incorporation something essentially differing from our Arch. For them as a typical example of incorporation serve Digesty and Code JUstiniana. Both these of the collection are constituted by a conscious choice of compositions of lawyers and imperial decisions, and the latest got out not always only, and, undoubtedly, the attention to the maintenance intending to inclusion in the collection was paid. On the contrary, at drawing up of our Arch strictly kept purely mechanical order of preference always the latest laws. [334]

However it is necessary to establish, that in ordinary jurisprudence the Roman Law did not enjoy the person popularity. As an example the decision №62 Civil cassation departments for 1891г serves. In it it was noticed, that pravitelstvujushchy the Senate considers it necessary to pay attention on admitted Vilenskoju sudebnoju palatoju of deviation from the standard correct way of a statement of judgements consisting «as in inappropriate references in the text of the appealed decision, contrary to Charter item 9 to the beginnings of" so-called theory of law »on doctrines of the Roman and French right, to compositions of foreign lawyers, etc., and in the numerous use of expressions unusual for Russian, as - that absolute and relative simuljativnost, fictitiousness etc.» [335].

V.A.Letjaev notices, that value and a role of dogma of the Roman Law in activity of cassation department is difficult for overestimating. «In our opinion - it continues is there was one of the parties of the reception of the Roman Law in Russia in that sufficient form which has appeared claimed both a science and judiciary practice, and accordingly and formation» [336].

But even if also the Roman Law theory in this or that kind it was applied by the Russian judiciary this fact there and then caused the fierce criticism of a scientific world. So, prof. M.J.Pergament, criticising the decision of a separate question of the senate on the inheritance, noticed, that the Roman position about compulsion in the will of appointment of the successor is alien to Russian right: « Quite often we would wish, that pravitelstvujushchy the cassation senate, at the permission of civil cases, pamjatoval about the Roman Law, about its indispensable bases and unforgettable precepts - in incomparable bolshej to a measure, than it, unfortunately, sometimes happens actually. But just in the present case original (hardly probable however not unconscious) approach to the Roman Law at all at a place. Competent jurist-novelist everyone in the slightest degree is, of course, informed on that, how much resulted Roman rule - like a numerous number still other positions from area of the Roman Law of inheritance - explains exclusively historically, how much here before us is right strictly national and how much, further, the general theory of civil law, and equally modern Civil codes are far in this case from loan of the maintenance from a treasury of the right of ancient Rome »[337]. The problem consisted that each researcher started with the understanding of "the pure Roman Law», its ancient Roman spirit and did not wish any adaptation to local Russian conditions.

Thus, the Roman Law had the authority only at the legislator and in scientific thought. pravoprimeniteli essentially avoided any mention of the Roman Law. The given tendency was noticed still by the public in satire of XVIII century:

«If who recollects to you grazhdanski charters,

Or the natural law, or narodny are right -

Spit to it in a physiognomy, tell, that says lies okolyosnu,

Imposing on judges that burden nesnosnu … »[338]

However, as a whole, the Russian legal system, as well as any another, used the Roman Law reception, and also introduced achievements of the French and German legal thought. The given reception was carried out under objective causes.

The new stage in Russia in the relation to the Roman Law was marked October revolution 1917г., when the young Soviet state has appeared before a choice or basic refusal of any reception of the right or a choice of a necessary material for the reception.

<< | >>
A source: Tkachenko Sergey Vitalevich. the ROMAN LAW RECEPTION: THEORY And HISTORY QUESTIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2006 . 2006

More on topic 2.3. Features of the reception of the Roman Law in pre-revolutionary Russia.:

  1. 2.4. Features of the reception of the Roman Law in the USSR and in modern Russia.
  2. Paragraph 2.2. Features of the reception of the Roman Law in the West.
  3. 2.1. Features of legal regulation of inheritance of the property rights connected with enterprise activity in pre-revolutionary Russia
  4. §1. Jurisprudence in pre-revolutionary Russia
  5. § 1. Occurrence and evolution of subculture of criminals in pre-revolutionary Russia and during the Soviet period
  6. paragraph 2.1. Concept and problems of the reception of the Roman Law.
  7. the Legislation on legal bodies in pre-revolutionary Russia: origin and development.
  9. Chapter 2. AKUALNYE PROBLEMS of the RECEPTION of the ROMAN LAW.
  10. § 1. System of punishments under criminal law in the Russian pre-revolutionary legislation
  11. § 2. Genesis of system of a social provision of pensions in Russia (history of its development during pre-revolutionary and Soviet time)
  12. §3. Development of institute of the state judicial review behind activity of the international commercial arbitration in pre-revolutionary and the Soviet Russia.
  13. § 3. Research of questions of sources of the law of master and servant in a pre-revolutionary, Soviet and modern science of the law of master and servant
  14. Tkachenko Sergey Vitalevich. the ROMAN LAW RECEPTION: THEORY And HISTORY QUESTIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2006, 2006
  15. §1. The pre-revolutionary period
  17. Tkachenko Sergey Vitalevich. the ROMAN LAW RECEPTION: THEORY And HISTORY QUESTIONS. The dissertation on competition of a scientific degree of the master of laws. Moscow,