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3.1. System of sources of law of Russian empire during the period with 1832 for 1866

The legal system according to definition of professor M.N.Marchenko represents «an internal structure of structural elements of the right» [274]. To elements it is right traditionally carry branches, podotrasli, institutes, podinstituty and rules of law.

Set of these elements forms, accordingly, the right, and being fixed in concrete forms - system of sources of law.

Thus, proceeding from the above-stated definition, the legal system is an internal structure of system of sources of law. Accordingly it arises when sources of law are in the condition systematised and adjusted with each other.

Full ordering of branches of the Russian right has occurred only in 1920th, after revolution. At the same time preconditions to legal system occurrence arise in the course of the legal system formation, passing in some stages. The beginning of general ordering of the legislation and, accordingly, legal system formation was necessary with the edition of the Code of laws of Russian empire in 1832. To its introduction into force the Arch has been dispatched in places for acquaintance and became the certificate of interpretation of the right and the index of the rules of law containing in laws in force. During action of the Arch the system of sources of law of Russian empire has overcome three stages of the development, on each of which their parity with each other had the features.

As the Arch did not enter any new norms, only systematising already existing, annotating some of them, and cutting
Invalid, it starts to be used actually since 1832, pawning thereby a basis for right consolidation as systems. The first stage of formation of legal system of Russian empire begins with this moment, the central place in which was occupied with the Code of laws. It has been generated not on branches of law, and, more likely, on spheres of its application. That is the bases have not been put in its basis, sufficient for formation of the complete legal system. Besides, into structure of the first edition of the Arch have not entered:

1. The legalisations of local character operating in a number of national suburbs of Russian empire. Subsequently the second branch of Own Its Imperial Majesty of office has prepared or has begun preparation of some projects of the arches of local legalisations - the western provinces, Baltic provinces, the Great princedom Finnish, Kingdoms Polish, Bessarabia and others. From them the Arch of local legalisations of provinces ostzejskih has been approved only.

2. Legalisations on department of the Ministry of national education and the state control, and also normative acts in the field of bookkeeping.

3. Legalisations in the field of management of affairs orthodox and inoslavnyh confessions. Some of legalisations by a spiritual part began to be published only since 1865 as a part of Full meeting of decisions and orders on department of orthodox confession.

4. Legalisations on department of the Ministry for Foreign Affairs, specific department, management of mails, departments of establishments of empress Maria and others, consisting under the protection of the highest persons.

5. Decisions military and sea, constituted subsequently the maintenance of the separate Arch of military decisions and the Arch of sea decisions [275].

The arch has fixed a certain parity of sources with each other.

Invalid sources have been eliminated, and that was not included into the Arch have appeared uravneny in legal hierarchy. What remained out of the Arch - have kept the prereform status. As there was a further ordering of the right, the parity of sources of law with each other varied also. At the first stage those sources of law which operated and to 1832 [276] have affirmed.

Among them the greatest validity divine sources (precepts of the Christ, a precept of apostles, other norms of the New testament) actually possessed; among laws the greatest value receive Vysochajshe the approved opinions of the higher state bodies (vysochajshe the approved magazines of Committee of ministers, vysochajshe the approved opinions of the State council, vysochajshe the approved orders of ministers, vysochajshe the approved reports of the Senate, vysochajshe the approved definitions of the Synod).

Partikuljarnoe the right operated in territories regulated by it contrary to positions bolshej parts of laws, however only in the cases directly specified in the law. In any case a priority over it divine sources, Vysochajshe kept the approved opinions of the higher state bodies, laws of regional regulation (Positions about management of provinces [277], the Arches partikuljarnogo the rights [278]).

The local legislation (the laws published in regions before their joining to Russia, church norms inoslavnyh and inovercheskih confessions), local customs (customs of the radical people) - operated in
The relation of corresponding subjects, also had for them a priority over obshcheimperskim the right [279].

On the basic part of empire the laws which most part has been included in 1832 in Arch structure had the greatest value. Manifestos, charters, letters patent concerned them, ulozhenija, imperial decrees - but they have been systematised now in the Arch not under the form or publication date, and on subjects, that considerably facilitated their application.

Their use by means of the Arch in which they have been included became feature of application of laws and other standard legal acts. During too time, the standard legal acts containing the ecclesiastical law, partikuljarnoe the right and other legalisations which have not entered into the Arch - were applied directly.

Already since Alexander I there was a division of imperial decrees on written and oral (so-called "declared", through the authorised representative). The relation to the last was ambiguous.

The laws published in XVIII century limited force of such decrees, ordering in case of their contradiction to written decrees "not to accept" them and «in action not to make» [280], and the declared decree contradicting the decree signed, admitted ipso facto not having a validity. According to Establishment of the Ministries 1802 [281] practices of the edition of the declared decrees at all it was abolished. Article X fixed position, that «after research of the report of the minister if the Sovereign recognises means offered by the minister for useful and will see, that they do not demand neither cancellations of existing laws, nor introductions or establishments new, that, having approved with own hand this report of the minister, comes back to it for riot after this executions».

But the Establishment of the Ministries of 1811 strengthens again value of the declared decrees. So, according to Establishment article 259, the official had no is right more, as it was before, independently to recognise the declared decree not valid: now it should present about it a note through the corresponding minister in Pravitelstvujushchej the Senate. At the same time exceptions — for example have been entered also, the nominal decree given to military board on December, 14th, 1807, has been enjoined, «declared by the general from artillery gr. Arakcheev Vysochajshie commands to consider as Nominal Our decrees». From such declared Highest commands copies acted in film and were dispatched in places [282]. As a whole, these rules established by Alexander I, have remained without changes till 1917 and have been only added in Establishment of the State Council of 1842 More concrete regulation of the persons possessing the right of the announcement of the Highest decrees, however the validity of such certificates was more low, than at written laws [283].

The greatest validity among the sources accepted without participation of the emperor (except for divine sources) the opinions of the higher state bodies which did not have the imperial statement (opinion of the State Council, opinion of the Senate) possessed. They established an order of application of laws, specified their maintenance, gave interpretation of the norms fixed in them, and also could limit or change a mode of operation of subordinate legislation standard legal acts, and even 3

The concluded international treaties [284].

The question of a parity of the following group of sources has debatable character as their interaction within the limits of one sphere of legal regulation did not occur almost. Church customs operated exclusively in church questions, supplementing the standard
Positions of last. The international law operated at the moment of Arch acceptance basically subsidiarno under the relation to all complex of national laws and the sources equal to them. So, the international customs and dogovory operated in a case not contradictions to their national legislation. Thus the custom was the basic source of international law in XIX century.

The lowest line in system of the ecclesiastical law and last place among the sources of law equal to laws, was occupied with historical sources. Antiquated norms concerned them, certificates of the Byzantian right which positions had base character, but have so become outdated, that were applied exclusively subsidiarno.

Below historical sources in hierarchy of sources of law there were subordinate legislation standard legal acts. Decisions of the Senate, Synod definition concerned them, orders, orders and instructions of ministers and Committee of ministers, decrees and instructions of Time higher committees, orders of bishops, orders of governors, orders of chiefs of provincial boards, decrees of district departments. They were accepted by "own power» corresponding officials and extended on spheres of a life of a society subordinated to them.

As to class customs - for peasants they regulated the most part of the legal relations arising between them as laws, as a rule extended the action only to the population of noble family. So, even free peasants were guided in the actions by the norms which have developed within the limits of a community. Bottom (at district level) and top (at province level) punishments carried out court over the state peasants, thus at the heart of their decisions the common law laid. Affairs
Between private peasants were resolved by landowners or heads in a community [285].

The local layer of sources of law was constituted traditionally by local legal acts which were constituted legal and the physical persons who had imperious powers in relation to a certain circle of persons subordinated to them. So, landowners continued to regulate legal relations between peasants, issuing oral, as a rule, orders on punishment, change of the social status or a residence of the last. Many landowners constituted own ulozhenija, regulating punishments of serfs or even position about management of manors in which detailed instructions on all spheres of ability to live in the territory entrusted to it [286] contained. Similar orders, instructions and charters existed at factory owners and other employers. Formally local certificates could not contradict the legislation and even customs, but laws regulated, in the majority, only legal relations between free people, and country customs solved questions family, hereditary, a liability law while in sphere of criminal law serfs were completely podvedomstvenny to landowners. At the same time, some landowners fixed customs which have already developed in the country environment in the legal acts, and some even tried to reform them.

Similarly, the sphere of labour legal relations of workers was regulated exclusively by factory acts. Heads of the enterprises independently established norms of working hours, wages payments, defined social privileges and other questions regulating a legal status of workers.

The organisations which legal regulation was carried out mainly by the state were only universities. In 1835 the new University charter [287] which has fixed an order of management of universities through the trustees of the educational districts accountable to the Ministry of national education appointed it has been published.

In spite of the fact that the legal status bolshej parts of the population after reform 1832 - has not changed 1835, the norms operating among noblemen, were included into the Arch and could serve as the sample of legal regulation of the relations arising between any categories of inhabitants of empire. As a result of the spent codification, in Russia the first branches of law which attempt of allocation has been undertaken at Arch compilation have started to develop.

Civil matters were regulated by the norms collected in t. X - XII Code of laws of Russian empire. The first part of X volume which have included most important of them, and has been named - «the Code of laws civil». The arch, in turn, consisted of three books: 1) about the rights and duties semejstvennyh; 2) about an order of acquisition and strengthening of the rights on property in general; 3) about an order of acquisition and strengthening of the rights to property in particular. Books included sections, those shared on chapters, chapters - on branches, and branches already consisted of concrete articles. In total this source contained 2334 articles.

Despite a considerable step which has made the given Arch on a way to ordering of rules of law and civil law formation as separate branch extensiveness of a source - it remained in many respects kazuistichen, contained many blanks, i.e. many relations and remained are not settled, despite huge volume of the Arch; it has kept set of the laws which were published in the serfdom and not answering
To new conditions, inquiries of the business civil circulation; the Arch legal language has not been unified, therefore, frequently, it was necessary to assort sense of laws «on the general structure of article» [288].

The arch comprised also contradicting each other or at all not clear norms. So, the persons who have reached of 17 years, had the right to dispose of the property that is impossible without fulfilment of transactions. At the same time sdelkosposobnostju the law does not allocate them, forbidding to make the transaction without the trustee. In laws civil rules of law remained as well more moral, rather than. For example, item 106 represented a moral maxim: «the Husband is obliged to love the wife as own body, to respect her.,» [289].

In connection with the above-stated defects of the legislator, role Pravitelstvujushchego of the Senate, as pravotvorcheskogo body increases. It gave interpretation of those or other articles of the Code of laws civil in connection with consideration of concrete lawsuits. Even without the Highest statement such interpretation were one of the most significant sources of law.

During the considered period isolation such podotraslej civil law, as trading, bill, industrial, sea, mountain, water, forest law was outlined. Separate Trading ulozhenie in Russia and has not appeared. Its projects were constituted in 1814 and 1823, but both times have not passed the statement in the State Council. Besides Laws civil, many norms of a commercial law were incorporated by the Charter about the bills, published in 1832

All norms and civil law institutes have been penetrated by idea soslovnosti, i.e. inequalities of subjects of law (citizens) before the law. As before, noblemen, clergy concerned exclusive estates and, partly, a city top and merchants.

Still the Manifesto 1807 [290] Alexander I has cancelled the so-called eminent citizenship provided by Letters patent to cities. Seven categories of eminent citizens instead of which it has been founded «pervostatejnoe merchant class» were abolished. Later Nikolay I Decree from April, 10th, 1832 has founded «honourable citizenship».

Since 1822 clerics from noblemen have acquired the right to make bills of sale for workmen and peasants. Hence, the clergy has apprehended the civil rights and nobility duties. Questions of marriage, a family and the inheritance continued to be regulated in common by the state and church. In legal sense marriage represented the contract, that is the agreement between the man and the woman, concluded in the form defined by the law and involving occurrence of the rights and duties.

In the first part t. X Code of laws has been allocated separate razel, devoted to the family law, as component of the right civil - «About the rights and duties semejstvennyh». In it have been established age of the introduction into marriage for the groom and the bride, necessity of the consent to marriage of parents was fixed, and in some cases of trustees, the heads (civil or military), was regulated the legal status of the wife in a family, has been established by the law a separate mode of the property of spouses.

To the Decree from July, 19th, 1830 the age of consent constituted 15 years for the groom, 13 years - for the bride. The age has been raised by this Decree till 18 and 16 years accordingly. The similar measure was based so: «Wishing to protect loyal from those known by experience, harmful consequences which occur from the composition of marriages between minors and shake kind customs, we recognised for the blessing to enjoin, that it was forbidden to priests to crown henceforth henceforth marriages if the groom and the bride have not reached
Still the first 18, and last 16 years »[291]. This instruction was included also into the Code of laws. For natural inhabitants of the Transcaucasian edge the age of consent in 15 and 13 years, going back to the Eclogue, remained invariable. It was not allowed to marry to persons is more senior 80 years.

From ancient times so-called "search", i.e. interrogation by the priest of the persons who have was for survey, concerning has remained, whether there are no legal bars for marriage fulfilment. In 1802 at tserkvah have been got special shnurovye books for recording of "searches". In 1837 the Synod instruction had been entered the special form of "search".

Foreigners and Jews had the special, limited civil-law status. For the last line of settled way of life out of which they had no right to get the real estate has been established. The exception was constituted by the Jews who graduated or have collected the certain capital. Since 1835 the rule that Christians working on Jews should live separately from owners Has been entered.

1866 when there were the first courts functioning according to Judicial charters of 1864 that has generated changes in a validity of customs became the termination of the above described stage of development of system of sources of law, with some share of convention, has raised the question about the judicial precedent as the source of law, has changed an order of application of some partikuljarnyh norms. During this period there were also changes in system of the sources of law, connected with serfdom cancellation in 1861, introduction of the new University charter in 1863, change of powers of Committee of ministers and the State council in 1865 and 1842 according to, has started to develop trading and the law of master and servant.

3.2.

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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 3.1. System of sources of law of Russian empire during the period with 1832 for 1866:

  1. changes in the ratio sources of law of Russian empire during the period with 1866 for 1906
  2. CHAPTER 3. System of sources of law of Russian empire 1832 - 1917
  3. a place of sources of law in formed legal system of Russian empire (1832 - 1917)
  4. 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
  5. CHAPTER 2. Classifications of sources of law of Russian empire in action of the Code of laws of Russian empire
  6. features of changes in system of sources of law of Russian empire at transition from a monarchy to republic (1906 - 1917)
  7. CHAPTER 1. Istoriko-theoretical aspects of formation and development of system of sources of law of Russian empire
  8. the characteristic of sources of law of Russian empire XVIII - the beginnings of XIX centuries
  9. the Period of Russian empire 1689-1917
  10. 3.1. Sources of the Russian criminal law as a basis of functioning of its system
  11. the Chapter III. The CONCEPT of PERCEPTION of SOURCES of INTERNATIONAL LAW LEGAL SYSTEM of the RUSSIAN FEDERATION (ch. 4 items 15 of the Constitution of the Russian Federation of 1993)
  12. § 3. A parity of a common law with Sheriyat and the right of Russian empire
  13. § 1.1. Theoretical bases of istoriko-legal research of system of work with shots of police of Russian empire
  14. Afanaseva Elena Aleksandrovna. the NOTARIATE of RUSSIAN EMPIRE of the PERIOD of MODERNIZATION of the COUNTRY (the END XIX – the XX-th century BEGINNING): ISTORIKO-LEGAL RESEARCH. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2014, 2014
  15. § 2. Evolution of system of punishments under criminal law for minors during the Post-Soviet period
  16. CHAPTER 2. LEGAL BASES OF COUNTERACTION TO ABUSINGS IN SYSTEM STATE podrjadov IN RUSSIAN EMPIRE IN XIX - THE XX-TH CENTURY BEGINNING
  17. § 4 Concepts of system of sources of the law of master and servant and their classification
  18. 1.5. Judiciary practice in system of sources of the fiscal law
  19. § 1 Concepts of the international law of master and servant and system of its sources