From the Law of Rus to Con­sti­tu­tion

Law and self-gov­er­nance in Ukraine’s ter­ri­tory from the 14th through the 18th cen­tury

The Ukrainian Week - - CONTENTS - Vi­taliy Mykhailovskiy

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

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