From the Law of Rus to Constitution
Law and self-governance in Ukraine’s territory from the 14th through the 18th century
Law and self-governance in Ukraine's territory from the 14th through the 18th century
If you look at contemporary sociological surveys and identify the key issues bothering an average Ukrainian, the rule of law and construction or restoration of justice will be on top of the list. In fact, these have been priority concerns ever since humans began to unite in communities and conduct their affairs together. That was probably when the first need of certain norms of conduct appeared, which later evolved into the first legal codes known as customary law. In parallel, those who had to control it, take decisions and receive justice appeared.
Our traditional perception of medieval society builds on a number of stereotypes full of impunity of feudal lords, people in power and with weapons, thieves, attacks against homesteads, and robbery, but no norms, laws or courts. A nuanced look at these clichés in Ukrainian history shows a whole different picture.
We have similar stereotypes about ways to restore justice in the past. Even today, most professional historians in Ukraine have little notion of what the legal system was like in the Ukrainian territory in ancient times. But medieval and early modern history presents a quite capable legal system for its time, complete with various institutions and, most importantly, the ability of people to use these tools to meet their needs. The main thing for them was respect for what the modern world knows as the rule of law.
I had a chance to see how dominant such stereotypes are back in the 1990s when I was a student at the Pedagogic Institute in Kamianets-Podilsky, Western Ukraine. At one of the conferences there, a student of history spoke about the system of lawyers in courts across Ukrainian land in the 16-17th centuries. A professor who had studied history in Leningrad in the early 1930s and had huge academic and teaching experience was very sceptical about the topic. “What lawyers could Ukraine possibly have in the 16th and 17th centuries?” was his reaction. After listening to the report, however, he had no choice but to accept its main points backed by references to the publicly available documents.
RUSKA PRAVDA AND ITS DESCENDANTS
Given by Yaroslav the Wise to the Novgorod people in 1016, Ruska Pravda or the Law of Rus is conven-
tionally believed to be the first written code of customary laws. Yaroslav’s descendants further completed it with Pravda Yaroslavovychiv, the Law of the Yaroslavychi, and an expanded version of Ruska Pravda. This relatively small code of legal norms ranging from 43 articles in its shorter version to 121 in the expanded one primarily described personal security and property rights. At that time, the evolution of legal thought in Ukrainian land walked hand in hand with that in its neighbors, the newly Christianized countries of Central Europe.
The late Middle Ages were the next stage when written codes spread across the territory, as a dynasty crisis erased from the political map of Europe the Kingdom of Halychyna-Volyn otherwise known as the Kingdom of Ruthenia, and part of the Ukrainian land, including Halychyna Rus and Western Podillia which ended up in the Kingdom of Poland, while Volyn, Kyiv region and Eastern Podillia found themselves in the Grand Dutchy of Lithuania. Each of these parts lived both by the indigenous legal norms, and by those imported from the West — primarily through the German-speaking residents of their cities. Quite a few educated people were there to enforce these norms after getting their degrees in well-known European universities of the time, including the University of Padua, a major center of legal education.
The old Rus tradition led to the borrowing of norms from Ruska Pravda in the part of Ukraine’s land within the Grand Dutchy of Lithuania for Casimir’s Code adopted in 1468 and the subsequent three Lithuanian Statutes of 1529, 1566 and 1588. The Statutes were based on the preceding legal acts but were enriched with the accomplishments of legal thought from the Renaissance Europe. They eventually became a foundation for legal relations in part of Ukrainian territory up until the 1840s when the Russian Empire abolished them.
The Ukrainian lands that were integrated into the Kingdom of Poland fell under the jurisdiction of the crown law in 1434. To make it work in that territory, a network of courts was established. City courts led by a starosta, the king’s representative, thus dealt with criminal cases in the given territory. The land court dealt with the cases of the noblemen and others, other than criminals, settled in its jurisdiction. The nobility court solved the eternal problem of separating land between the noblemen. All posts in these courts were elected. Only starostas were appointed and dismissed by the king. While only the nobility could be elected as court judges, candidates still had to meet certain requirements. They had to be settled in the territory covered by the court’s jurisdiction, have integrity and authority in society. Clearly, that epoch did not have universal equality. But people saw election out of several candidates as a sufficient safeguard against corruption at that time.
Ukrainian cities started obtaining self-governance rights back in the early 14th century. These rights were given to them by supreme rulers. That approach to city governance was based on the 13th-century German models, initially granting Magdeburg and its residents the right to conduct their affairs independently. It was thus referred to as German or Magdeburg privilege. Historians still argue about which city in Ukrainian land was first to obtain it, listing Volodymyr, Sianok and Lviv, all in Western Ukraine, as options. This happened in the mid-14th century, the period of the Kingdom of Halychyna-Volyn. Therefore, most old Ukrainian cities have at least 500 years of local self-governance experience. Which is not too bad compared to the history of the land east of Poltava which is considered the easternmost city in Europe with a magistrate, a council, a burgomaster, municipal commissioners and jury panels — all the attributes a city needs to solve its affairs autonomously.
The language used by most legal institutions in Ukrainian land within the Kingdom of Poland was Latin. The few written documents preserved since that time and originating from the public chancellery, including international treaties and correspondence, were also in Latin. Polish failed to oust it even throughout the Age of Enlightenment.
The rest of Ukrainian land that was part of the Grand Dutchy of Lithuania used Ruthenian in recordkeeping. This privilege was cemented with the resolutions of the 1569 Union of Lublin whereby Volyn, Kyiv and Breslau voievodships went to the Kingdom of Poland. Courts used the Second Statute of Lithuanian with Ruthenian as the language of recordkeeping on this territory. Unfortunately, Polish began to slowly but firmly oust Ruthenian in recordkeeping in the 17th century, leaving titles of court cases as the only place for Ruthenian.
PARLIAMENTARISM AND ITS TRADITIONS
In 1493, King Jan Oblracht convened the noblemen from all provinces of the Kingdom of Poland, including representatives of Ruthenian, Podil and Belz voievodships aristocracy, to initiate regular conventions of the Sejm, a parliament. It had two chambers. The upper chamber known as the Senate included voievods, castellans and Catholic bishops. The lower chamber, the Polish Izba, was comprised of elected deputies, i.e. the envoys elected in local sejms of the nobility. Having an active legislature allowed the noblemen to eventually organize into groups somewhat alike modern political factions. They tried to express the ideas they believed necessary for the country or their region in debates and speeches.
Any decisions taken at the conventions of parliament chambers had to be unanimously approved by all those present. Disagreement of one representative was a reason to close the convention and stop the work of the Sejm. At first glance, this unrealistic instrument in the democratic institution was an essential guarantee against corruption in which the king was always the main suspect. Interestingly, the first liberum veto, the voice of disagreement, came in 1652, over 150 eyars after the two-chamber parliament started working on a regular basis. Further on, magnates and oligarchs took that effective instrument to often apply it in practice through dependant envoys. This led to a situation where most Sejm conventions never reached any logical conclusions or decisions because of the liberum veto abuse. That’s how democracy ended up ruining itself.
The crisis of the Jagiellonian dynasty in 1572 provoked a unique situation in Rzeczpospolita of which almost all Ukrainian lands were part by then. The Warsaw emergency Sejm in 1573 decided that every new king was to be elected by the general convention, the electoral sejm, comprised of all nobility in Rzeczpospolita. Europe of that
MEDIEVAL AND EARLY MODERN HISTORY PRESENTS A QUITE CAPABLE LEGAL SYSTEM FOR ITS TIME, COMPLETE WITH VARIOUS INSTITUTIONS AND, MOST IMPORTANTLY, THE ABILITY OF PEOPLE TO USE THESE TOOLS TO MEET THEIR NEEDS
Law and order. Every period of Ukraine's history has its legal declaration. Kyiv Rus had Ruska Pravda, the Law of Rus. The Hetmanate had the 1710 Constitution