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sources secular and the ecclesiastical law

Relations of Russian orthodox church and the Russian state have long and uneasy history. The right authorised by the state and a church canon are the major social regulators in any developed society.

In the clerical state value of religion is especially high, that generates on the one hand inevitable collision between the state and church for superiority in regulation of a public life, and on the other hand - gradual merging of these institutes. Therefore, as the parity of church and temporal power in struggle for the power varied, the parity of standard instructions published by them varied also.

To the beginning of XIX century the church has appeared is included in government system: the church authority supreme body - the Most holy Pravitelstvujushchy the Synod - was one of the supreme bodies of the state directly accountable to the emperor. In its conducting there were the questions of the church authority partially daring on places by bishops, and also the statutes concerning area family, hereditary, of some other branches of law. At the same time, decrees published by it and
Definitions became laws only after the highest statement, as well as certificates of other state bodies.

In hands of the emperor all branches of the power, including legislative and church have been concentrated: according to the Code of laws of Russian empire, «the Emperor jako the Christian Sovereign, is the Supreme legislator and the keeper of doctrines of dominical belief, and the observer pravoverija and everyone in church blagochinija» [167]. In the Certificate about Inheritance of the Throne of 1797, the Emperor is named Glavoju Churches [168]. At the same time, «in management church » [169], and the law formally remains the basic source including ecclesiastical law is a position has been confirmed in the Arch published in 1832.

In a kind of that the complete legal system in Russian empire has not been generated, the system of sources of law did not coincide on the structure with formed branches of law. In particular, on the one hand, the questions, concerning the status of churches, persons of spiritual estate, orthodox citizens were regulated not only, and even not so much religious norms, how many the positive legislation. On the other hand, questions family, hereditary, criminal and some other branches of law which were in joint conducting the state and church. For example, if the person was not on a confession within three years, or did not result on it the children at the age from 7 years, it came under epitime and to other church punishments, however in case of relapse the church submitted the case in svetstkie law enforcement bodies [170].

In connection with vysheoboznachennoj a problem debatable was the question of a parity of concepts church and the christian law. Legislatively this question has not been settled, there was no unity of opinions and in scientific
To the practical environment. So, known jurist G.F.Shershenevich considered, that the identification of the christian law with church is wrong. The ecclesiastical law, in its opinion, consists of church norms under the maintenance, without dependence from the subject of law-making, and initial is is not right at all, and set of social norms, «sui generis» [171]. According to archpriest M.I.Gorchakova, the christian law is «the rules constituted by Church and approved by cathedrals» [172].

The modern researcher of the ecclesiastical law of Russia A.A.Dorsky has come to conclusion, that the christian law represents the body of rules, accepted by church bodies which pass in the ecclesiastical law category only

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After authorisation by their state [173].

Complexity was caused by a problem of internal structurization of the ecclesiastical law. There was no division on podotrasli and institutes. In this connection, the question of reference of the given branch to public or to private law was debatable also. In this occasion in jurisprudence there were three points of view: one considered, that the ecclesiastical law is public as the religion is a public institute; others allocated within the limits of the ecclesiastical law both public, and private-law components; the most defensible, in our opinion, a position does not suppose such division and denies possibility sopodchinenija the ecclesiastical law with state and international under the general heading public or private. Supporters of the given point of view provide for the ecclesiastical law especial position, on a level with national (in the given context - state) and international as it was applied in
Dependences on creed, instead of citizenship/citizenship of the person, that is carried nadnatsionalnyj character.

Thus, the ecclesiastical law is a generality of the right and represents the body of laws, regulating a legal status of Russian orthodox church and other faiths, the status of clergy, and also religious practices regulating realisation and certificates of registration. Thus norms of the ecclesiastical law can proceed both from church authority bodies, and from public authorities, but should be by all means approved the emperor.

The initial right is the body of rules, established by church. That their part which is authorised by the government, is a part of a positive law, thus not all from them enter into the ecclesiastical law: the statutes concern it, concerning questions of religious sense only. The same norms of the christian law which did not receive legislative fastening, had the status of corporate norms, like modern regulations of Russian orthodox church. The christian law was applied in legal proceedings in relation to laymen subsidiarno, and in processes with participation of ecclesiastics - was used as the core [174].

As a result, the ecclesiastical law as a generality and branch of law consisted of two parts: the state laws and the legitimised church canons which have been consolidated by the general subject of legal regulation. That part of the ecclesiastical law which proceeded directly from church often is called as the natural or divine right. The known modern researcher of the given question V.A.Tsypin contrasts with its positive (positive) right based on certificates of the church, that is it identifies the divine right with the initial. The big clearness in a parity of the given concepts is brought, in our opinion, by definition
The divine right, given N.K. The Sokolov who understood as it «set of establishments containing in the Scriptus in that measure and in that sense in what recognised, recognises and declares their those the universal church, its reason» [175]. Archimandrite Gabriel adhered to the Same opinion also, considering, that «the right divine are the establishments represented in the Scriptus» [176]. A separate layer of the sources of law connected with church constituted religious texts and the dogmatic person, basically not being standard legal acts, but during too time taking place in pravoprimenitelnoj to practice. On an example of the resulted statements we see, that in the literature of XIX century they were called as the divine right which was divided with the christian law - church normative acts, more often. The given position is represented, in our opinion, to more logical.

It is necessary to discriminate the divine right in legal sense and as the religious-moral law. So, those positions of the Scriptus which are sources of law in legal sense on the one hand and which have not received fastening in the law - with another can be carried to the divine right only. Along with the norms containing in the Bible, representatives of the legal approach to understanding of system of the divine right (among them N.K. The Sokolov, archimandrite Gabriel, M.A.Ostroumov, M.E.Krasnozhen, I.S.Berdnikov, A.S.Paul, M.I.Gorchakov) carried to it doktrinalnuju a component: compositions of fathers of church, lecture sacred, own interpretation of the Scriptus of outstanding figures of church. In these sources which have not entered into a canon, it was shown, in their opinion, essence of the divine right, as refractions church
Legends through as what it «recognises and declare universal church» [177].

In too time, the maintenance of the divine right in practice it was understood far not so unequivocally. Even in religious circles the parity of the Scriptus, the apostolic and church legend, an ancient church canon and concerning modern doktrinalnyh sources remains debatable. So, supporters of the theological approach in a science of the ecclesiastical law did not discriminate the divine right with initial and positive. For them, at the heart of all ecclesiastical law the doctrine, that is the right dictated by church and the natural death, given by the God which joined the most various "natural" human rights (the right to life, the right to marriage, the right of creed and other) laid. Supporters of the given approach were metropolitan Philaret, bishop John, M.I.Bogoslavsky, P.A.Lashkarev, A.I.diamond.

Besides, the relation to Scriptus application, in particular in need of correlation of positions of Shabby and New Precepts was ambiguous. On known expression Blissful Avgustina, «the New testament disappears in Shabby, Shabby opens in New» [178]. Value of this source and trues containing in it was conclusive, but at the same time many concrete precepts and establishments could be used exclusively, as religious-moral, but not rules of law. In particular, Old testament positions were applied exclusively subsidiarno as, by an apostolic Cathedral it has been approved, that they «with bolshej accuracy and clearness are opened in canons of cathedrals and Sacred Fathers» [179]. It has been connected with considerable obsolescence of ancient rules which were more reasonable for applying in that kind in which they
Have been adapted for rather modern realities in doktrinalnyh sources. Also many standard positions of the New testament eventually have undergone to changes. For example, «the legend of the apostle to the head efesskoj churches convict sogreshajushchih before all it could to be applied, only while the public confession and a repentance in church» [180] has been practised. Rescripts of the Supreme ecclesiastical authority also left in due course application, in particular, an interdiction to metropolitans and diocesan bishops to manage spiritual court over the Moscow church ranks passing through territories [181] subordinated to them, or necessity to receive church blessing and corresponding letters patent

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At trip abroad [182].

The deserved professor of Imperial Moscow university A.S. Pauls allocated the following hierarchy of divine sources. On the first place it has placed the rules given by the God about what there should be an express indication in the Bible. The following order is formed by the norms, known to us according to apostles. Further there are rules of a church life and the disciplines established by Fathers of Church, and after them - Moiseevo the legislation. On last place there are sources of the human right which can be expressed:

1) in the form of the legislation;

2) in the form of custom.

Church customs as marks A.S.Paul, can have in practice even bolshee value, rather than the law, during too time their observance depends on a concrete situation. The church law operates so, how much the consciousness supposes possibility dispensatsii from a custom binding force. For example, the church canon establishes necessity of one
vospriemnika at a christening of the baby while the custom provides existence of a two: the godfather and the godmother.

All sources of the ecclesiastical law of A.S.Paul divides on:

1) obshchetserkovnye (that is important for all Christian faiths) which the Scriptus concerns;

2) obshchepravoslavnye (applicable only in orthodox church), the including norms of the initial code fixed in Kormchej to the Book, the Book of rules of Sacred Apostles, sacred cathedrals universal and pomestnyh, and Sacred Fathers (further - the Book of Rules);

3) Russian-orthodox, consisting of Peter I Spiritual Regulations from 1717, the Charter of Spiritual consistories, the Book about posts presviterov parish, decrees and definitions of the Most holy Pravitelstvujushchego the Synod and the legalisations included in the Code of laws of Russian empire [183].

The recognition of church norms sources of law and occurrence of Orthodox Church in formirujushchejusja legal system of the Russian state was possible only thanks to that the church, making a compromise with temporal power, during Petrovsky time has refused rigid following to an ancient canon in a part, impossible to execution by all laymen. In particular, indulgences have been made concerning marriages orthodox with inovertsami. Still on June, 23rd, 1721 the Synod had been published the decree on which the foreigners, wishing to pass to Russian service, have acquired the right to marry on Russian maids and widows under condition of that they will not force the wives to belief change, and children in such marriage will be brought up according to orthodox tradition.

Thus, the ecclesiastical law was regulated by following kinds of sources: the divine right (the Scriptus, the Book of rules), the christian law (decisions universal and pomestnyh cathedrals, «Kormchaja the book», decrees and definitions of the Most holy Pravitelstvujushchego the Synod),
State law (the Code of laws of Russian empire, imperial decrees and other standard legal acts proceeding from secular authorities), partly a common law (church customs, definitions raznopomestnyh the cathedrals, not entered into a canon), historical sources (the Eclogue, decisions of the Byzantian emperors), the legal doctrine (explanatories and reading and writing of outstanding church figures). As a result, the ecclesiastical law operating with the diversified kinds of sources, was the most disorder and chaotic branch of the Russian right to the beginning of XIX century.

In this connection, in carrying out of the general legal codification the Arch edition became which result, works on ordering and the ecclesiastical law were led. The first similar attempts were undertaken in XVIII century when the Collection of reading and writing and instructions »has been constituted«, including 39 instructions of the Synod, however it has not passed censorship and has not been published [184]. In XIX century the considerable quantity of various projects of codification of the christian law has been presented to the Synod and other supreme bodies of the power, constituted on own initiative various figures of church. One of the first, in 1808, had been presented to the Synod «the Monument from spiritual laws» [185], including ancient certificates of the christian law. As the source of law to the publication it has not been accepted, but there was a Synod decision about preservation and studying of monuments of an antiquity owing to what the given edition has been used as the inventory valuable to a historical science [186]. Later for a role «church codes"applied"the Alphabetic arch corrected, containing in spiritual regulations», constituted in 1835 and 1836 [187], «Short extraction of sacred Law gospodnja old and new
Precept », written to V.Zinovym in 1845 [188],« the Alphabetic arch corrected the apostles containing in Kormchej to the book »from 1838 [189]. In the comment to it it is specified, that the document purpose is« introduction in the Alphabetic arch of the Theological and moral trues taken from the Bible », that is the Arch was positioned more likely not as the legal act, and as the religious-moral code. At the same time, in it curious positions contain also. So, the author of the Arch divides the Scriptus into the law and the Gospel: the trues which are coming under concern the first to" exact execution », to the second - the legends containing norms« mercy and morals »which performance is not supervised by a society and remains on conscience of the believer [190]. As a whole, the legal technics of execution of the given document very low, and product has the confused and impractical character.

The Full meeting of spiritual laws of Apostolic Greek-east Orthodox All-Russia Sacred church of the Lord of the God and the Savior our Jesus Christ »(further - Full meeting of spiritual laws) [191], constituted by bishop Avgustinom in 15 volumes, total amount more than 26000 pages and comprising about 5000 legalisations became the most considerable work on ecclesiastical law ordering«. Under the maintenance the given work corresponded to Full meeting of laws of Russian empire, with reference to initial certificates. For the first time the Full meeting of spiritual laws left in 1833, and also perevypuskalos in 1834, 1835 and 1836. Bishop Avgustinom with 1832 for 1839 had been constituted also «Full meeting of spiritual laws Novozavetnyh Apostolic GrekoYOVostochnoj Orthodox All-Russia Sacred church of the Lord of the God and the Savior our Jesus Christ» and Indexes to aforementioned meetings [192]. The full meeting of spiritual laws has been taken to pieces, in
Dependences on in what frameworks of the state certificates were accepted, norms from which were contained by a certain part. Legalisations have been located on chronology. At all relevancy of the given work it was absolute kazuistichen and is overflowed by the norms which have become outdated and not concerning not so to the Russian validity. For example, such positions as «ashche who will steal telja or a sheep will give four sheep to that place» [193]. That is it had character of the catalogue or the historical document, but not a legal source.

After the edition of the Code of laws, official work on ecclesiastical law codification has begun. In 1834 the new edition Kormchej of the book including "legends" about universal and pomestnyh cathedrals has been let out - thus there was a tendency of generalisation of various sources of the ecclesiastical law in one edition. After that it has been decided to include the church legislation in the Arch. In 1835 the ober-public prosecutor of the Most holy Pravitelstvujushchego Synod S.D. nechaev from the highest pleasure has taken from Synod archive and has collected together all legalisations, concerning managements in church. M.M.Speransky has charged ordering of this material of A.P.Kunitsyn [194]. By 1836 it had been constituted the Collection of spiritual laws in 19 volumes, including unlike Full meeting of spiritual laws only effective standards [195]. The collection has been constituted in a chronological order, with simple poimenovaniem certificates, without reduction of their maintenance. That is it could be applicable as the index, but not as the normative act. New ober-public prosecutor N.A.Protasov has counted work useful, however "inconvenient" for publication, M.M.Speransky
Held the same opinion - therefore kodifitsirovannyj the collection of the ecclesiastical law and has not been published.

At the same time, on the instructions of N.A.Protasov published the major initial decisions of Orthodox Church, in 1839 on change Kormchej to the book there is a Book of Rules which has incorporated Rules of Sacred Apostles, the canons accepted by decisions 7 universal and 10 pomestnyh of cathedrals, a rule of 13 Sacred Fathers. By 1840 years the idea of a detailed regulation of the ecclesiastical law and its inclusion in the uniform legal system of empire comes to naught - as a part of the Arch the ecclesiastical law and does not appear. Instead in 1841 the Charter of Spiritual Consistories in details regulating activity of church is published. Thus, the state to aspire to supervise church which, being afraid of definitive merging with secular institutes, tried to isolate the system of sources of law from the state. Refusal of the Most holy has been connected with this tendency Pravitelstvujushchego the Synod from the project of teaching of the ecclesiastical law secular professors on faculties of law, also. In 1844, with the edition of work of archimandrite Gabriel «Concept about the ecclesiastical law and its history», the ecclesiastical law becomes a subject istorikoyojuridicheskogo the analysis [196].

At last, in 1865 already Synod initiates the edition of the new Arch of church laws. Work on the project in which basis the Full meeting of spiritual laws, the Collection of spiritual laws of A.P.Kunitsyn and the Index constituted diakonom by Volobuyev have laid down and not published has begun. In 1901 the Full meeting of decisions and orders on department of orthodox confession of Russian empire »[197] in 10 volumes, including statutes has been published«,
Arranged chronologically, thus their considerable part has been cut down.

Since this moment the church loses independence as social institute separate of the state even more. In 1905 in the State Duma the question of a place of church in a lawful state was actively discussed. As a result, application of the sources of law which have been not authorised by the state even in intrachurch affairs starts to come to naught [198]. At the same time, the ecclesiastical law keeps independence as separate branch or even a right generality.

Thus, at the heart of a parity secular and the ecclesiastical law their division under terms of reference laid. So, the legal relations connected with religious activity, were regulated by the ecclesiastical law, the others within the limits of other secular branches of law. For example, the order of appointment of church punishments and replacement with them on occasion criminal prosecution was regulated by the Penal code criminal and corrective (the secular right), and an order of execution of the given punishments - in Rules of Sacred Apostles and other initial sources (ecclesiastical law). Thus, as ecclesiastical law sources served both divine and the christian law, and the state legislation. In that case the secular right had paramount value - the temporal power could give to a church canon force of the law and, in case of occurrence of collisions limited its action. The exception was constituted by legal relations with participation of ecclesiastics - in such cases the christian law was used as the core.

Application of norms from religious texts and the church doctrine directly had subsidiary character. Thus new, more actual, treatments of the Scriptus admitted having the big force. In that
Time as within the limits of the christian law operated a return rule - at occurrence of disagreements application was come under by more ancient canon.

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A source: BOTANTSOV John Vladimirovich. EVOLUTION of SYSTEM of SOURCES OF LAW of RUSSIAN EMPIRE (1832-1917). The DISSERTATION on competition of a scientific degree of the master of laws. St.-Petersburg - 2017. 2017

More on topic sources secular and the ecclesiastical law:

  1. Methodology It is necessary to notice, that an ecclesiastical law problem.
  2. System In the set of norm of the church ecclesiastical law
  3. 3.3. The Ecclesiastical law as religious legal system.
  4. the ecclesiastical law as religious legal system.
  5. 1.4. Influence of the ecclesiastical law on formation of the Russian legal system.
  6. CHAPTER 3. The ECCLESIASTICAL LAW AS CORPORATE STANDARD SYSTEM
  7. CHAPTER 3. The ECCLESIASTICAL LAW AS CORPORATE STANDARD SYSTEM
  8. the Tserkovno-state relations in the east and nazapade. The Ecclesiastical law as the first all-European legal system.
  9. 1.3. The Tserkovno-state relations in the east and in the West. The ecclesiastical law as the first all-European legal system.
  10. CHAPTER 1. The HISTORICAL SKETCH of OCCURRENCE And ECCLESIASTICAL LAW DEVELOPMENT
  11. CHAPTER 1. The HISTORICAL SKETCH of OCCURRENCE And ECCLESIASTICAL LAW DEVELOPMENT
  12. 1.2. An epoch of Universal Cathedrals and formation of initial bases of a life of Church. Ecclesiastical law codifications.
  13. an epoch of Universal Cathedrals and formation of initial bases of a life of Church. Ecclesiastical law codifications.
  14. CHAPTER 4 FORMATION NADNATSIONALNYH of SOURCES OF LAW And the WAY of HARMONIZATION of SYSTEMS of SOURCES of the LAW OF MASTER AND SERVANT To MEMBER STATES EAES
  15. § 2. Sources of civil-law norms and sources of the conventional principles and norms of international law: Parity of concepts