| Nomocanon of Saint Sava Законправило Светог Саве | |
|---|---|
 First page of St. Sava's Nomocanon, 1262 manuscript | |
| Original title | Законправило Светог Саве / Zakonopravilo Крмчија / Krmčija |
| Created | 13th century |
| Location | Serbia |
| Author(s) | Rastko Nemanjić (Saint Sava) |
| Purpose | Constitution (Code) |
The Zakonopravilo (Nomocanon of Saint Sava, Serbian Cyrillic: Номоканон светог Савеm, Законоправило or Krmčija (Крмчија)) was the highest code in the Serbian Orthodox Church. It was finished in 1219. This legal act was written in simple language. Its basic purpose was to organize the continuation and functioning of the Serbian Kingdom and the Serbian Church. It was originally printed under the name Rules of Speech (Правила Говора) in Serbian at Raška, Serbia, in two successive issues, one for Wallachia and another for Transylvania (in 1640). It is Serbia's first Serbian-language church-state constitution.[1]
John Scholasticus, the Patriarch of Constantinople, was the writer of the first church-civil codex in which the material is systematically arranged.[2] The twelve Novellae of Emperor Justinian (Novellae Constitutiones) on the subject of church and law are a part of this codex. It is known as the Nomocanon of John Scholasticus (ca. 550) or the Syntagma of John Scholasticus (Синтагма Јована Схоластика). Syntagmas are nomocanons that contain rules without explanations.
At the beginning of the seventh century, two important acts were combined. The Canon Syntagma, written by Patriarch Sergius, and a codex written as a part of Justinian's law, by an unknown author, were taken by a jurist named Julian who turned them into Nomocanon in 14.Titles (Номоканон у 14 наслова). In 883, the rules from the Trullan and Second Council of Nicaea, those written at the Constantinopolitan assemblies, and at civil assemblies were added to the nomocanon. Patriarch Photios wrote the foreword. In 920, the Nomocanon of Photios was proclaimed an official law document of the Christian Church by the four eastern patriarchs at their council in Constantinople.
The first Slavic nomocanon, Liber Sclavorum qui dicitur Methodius, was probably written by Slavic enlightener Methodius around 868. The Liber Sclavorum qui dicitur Methodius included two codexes – Methodius's translation of the Nomocanon by John Scholasticus and Slavic alternation of the Eclogue (Zakon Sudnyi Liudem) The Eclogue is a Byzantine codex dating from the mid-eighth century. It was most likely written by Leo III or Constantine V as a short version of Justinian's codex. Methodius's nomocanon was written just before he traveled to Slavs in Lower Pannonia to visit Prince Kocel (869–870 and 873–874) and it applied to all Slavs.
The Zakonopravilo consists of seven introductory chapters:
followed by sixty-three other chapters:
Zakonopravilo is famous for its advanced treatment of social justice. Saint Sava expanded the boundaries of social justice, confronting the norms of Byzantine civil law and slave society. He accentuated the Christian teaching of social justice, justifying it by saying that norms should serve a man and not the public interest.
One of the most significant social justice rules is introduced in the fourth introductory chapter. This chapter was taken from Saint John Chrysostom's interpretation of Our Father and it states: "Because he didn't say My father but Our father.... Nobody should worry only about themselves, but also about their neighbours, and nobody should have more than the other: neither the rich from the poor, neither the lord from the servant, neither a prince from those over which he rules, neither a tsar from the soldier, neither the wisest from the unlearned, because to all he gave one gratitude." This regulation proclaimed the equality of all people regardless of their financial or social status, it forbade allow oppression, and it strove for welfare. It was contrary to the principles of slave society at the time.
Shelter of the poor and the role of noble homes is mentioned in chapter 48, in the section "On court and justice", which was taken from Leviticus and Deuteronomy. Sava wanted to emphasize philanthropy, in particular that laws should be interpreted in a way that encourages philanthropy. Shelter and assistance for the most endangered (the poor) was defined as ethical and just, while glorifying the rich and powerful was unethical and unacceptable. The people and institutions that are most likely to be asked to provide care for the weak are bishops, deacons and presbyters (basically the church as an institution). Zakonopravilo contains two canons that speak on this:
59: the Apostles' canon imposes excommunication for bishops or presbyters who do not give a poor cleric what he is in need of, and takes away their rank if they remain merciless (because they are murderers of their own brother)
7: the canon from Synod of Sardica includes the poor and those who are unprotected from violence. They can seek help from a bishop, who is obliged to assist them as much as he can or they can go to the emperor personally and ask for help.
Bishops, busy with their church duties, were unable to protect the many powerless people from abusers and famine. The solution was to establish services that church representatives (ecdics) chosen by the emperor would carry out. Ecdics were executors of the church and a sort of judge, because they were expected to defend the interests of the church in the courtroom. However, some ecdics were responsible for more than church issues. This is known from some tsar's decrees, for instance: Emperor Theodosius I wrote to Constantinople's ecdic saying he should not let peasants and citizens be oppressed by taxes, that he should repress the arrogance of archonts and care for his people as he does his children. Because of the importance of this role, laws were created to regulate the elections of ecdics, with the participation of respectable citizens and led by bishop and clergy.
Another protection mechanism is mentioned in the second chapter of Zakonopravilo, taken from the Proheiron: "If the self-supporting man is involved in a lawsuit with his guardian, it is necessary he seeks help."
Proheiron defines who is considered poor: "the one who has less than 50 gold coins in his belongings is poor."
One of the most important ways of protecting the poor is the building of noble homes (churches, monasteries, hospices, public kitchens, residences of the impoverished, hospitals). Regulations referring to noble homes are mostly taken from John Scholasticus' Canon in 87 chapters or Justinian's Novellae. They include:
Noble homes could be leased but only under strict surveillance, so malpractice and damage infliction are avoided. A lease could be granted for an unlimited term. Ways of making a lease contract were specified, for example by having the administrative staff of the noble home swear an oath in front of a bishop promising no damage would be caused.
The responsibilities of parents and children comprise another important section. The author strove to highlight the importance of families, in which life evolves and social awareness awakens. He believed that respecting one's parents is one of the greatest family values. Those who disrespected and abused their mothers or fathers were punished severely – with the death penalty. The Proheiron prescribes a milder punishment – those who are guilty shall be disinherited. In case of sickness, children have obligations to their parents. If parents are mentally or physically ill and their children refuse to look after them, then they, as legal heirs, could be disinherited. Children have one more obligation concerning inheritance law. They should not disinherit their parents or take property that could be bequeathed – it is strictly forbidden in all but the following situations: when parents give up their children for execution, when parents practice witchcraft to harm their children, when a father seduces his son's wife or concubine or when parents endanger each other. Children who abandon their parents and excuse themselves with piety while showing no respect will be doomed, and vice versa (for parents who abandon their children before adulthood). Certain civil regulations were influenced by these norms. Parents are not allowed to disinherit their children nor children to disinherit their parents when leaving for the monastery, if the motive for disinheriting appeared before the monastic life. Zakonopravilo regulates the way the property of those adopting the monastic life should be divided. If a monk has children, he can bequeath his property to his children. If he dies before making a will, his children take what is legally theirs, while the rest of the property is given to the monastery. Zakonopravilo lays down the rules of inheritance for children whose (non-monsastic) father died and who now live with a poor mother or mother-in-law. In this case, if de cuius has three children or less, the wife gets a quarter of the property, whether the children are hers or from a previous marriage. If he has more than three children, then the wife gets just as much as one child gets for use (owners of that property are their own children).
Since ageing usually comes with disease and weakness, the author's aim was to provide respect and legal protection for this category of people. That is why in chapter 48 under the "about respecting the graybeards" heading is a regulation from the books of Moses: "Before the face of the gray-haired stand up and respect the face of the old."
Saint Sava wrote an interpretation of the whole canon, including Aristinos' comments, regarding this topic. He also added, "If any clergyman imitates or ridicules the blind, the deaf or the lame, or those crippled in any other way – he shall be deposed because he is an offense to God who created him."
Another way to protect these people was to give them the opportunity for inheritance. Besides this, the only way for their relatives to include them as heirs was to manage their property during their lifetimes. The law dictated that the blind can name their own heir verbally, by having seven or five witnesses present.
The position of women is one of the most important indicators of social awareness in society. Roman marriage law enabled a relatively easy divorce by written statement (labellum repudii) or by agreement (divortum ex consensu). Byzantine marriage law had difficulty in freeing itself from its Roman heritage, until Emperor Justinian made important limitations to the novellae in 542, which were later transferred to the Nomocanon in 14 titles (47th chapter). With this law the marital security of women was strengthened in families of priests and secular families. When it comes to families of priests, Zakonopavilo dictates that if a presbyter or a deacon banishes his wife (for example by excusing himself with piety) and decides not to take her back, his title will be taken away. The rule in secular families is that if a man leaves his wife for any reason other than those regulated by law and weds another, he will be denied holy communion, while a woman who leaves her husband will be cursed. The only legitimate reason for a divorce, according to canonical teaching, is adultery.
Saint Sava could not stay within the boundaries of church teaching when it came to divorce. He prescribes part of a novella written by Emperor Leo VI the Wise which states that if a man has an insane wife who does not recover within three years, he has the right to divorce her. After that, chapter 11 of Proheiron lists reasons for which a woman can request a divorce: if the husband is working against the state or knows anyone that is without revealing it, if he does anything to harm the wife in any way, or if he forces her to be unfaithful. For a divorce to happen, in the case of the wife committing adultery, proof is needed. If it is determined that the wife was in fact unfaithful, the husband gets the premarital gift and the dowry, but if its proven otherwise the woman can get a divorce and take her dowry and premarital gift back. If they had no children, the woman has the right to her husband's possessions worth up to a third of the premarital gift. In the case of an unfaithful husband, the woman can choose not to leave if he stops after she requests it. If a slave was involved in the adultery, the punishments are more rigorous:
When the husband commits adultery with a slave the act is revealed to the public, the husband is punished by beating and the slave is sold to another region. When a married woman commits adultery with her slave, she is punished by beating, cutting her hair, cutting off her nose, banishing and confiscating her belongings, while the slave is punished by the sword.
Situations in which they are punished equally include when one puts the other's life at risk, in which case the crime is revealed to the public and immediate retaliation is requested.
According to the church, widows and poor women were the most socially endangered group and accordingly were given the most protection. An article carried over from the Book of Exodus to Zakonopravilo stated: "You must not mistreat any widow or orphan. If you do mistreat them, and they cry out to Me in distress, I will surely hear their cry. My anger will be kindled, and I will kill you with the sword; then your wives will become widows and your children will be fatherless". The first way of protecting a widow is her inheritance (if her deceased husband has up to three children), which is one fourth of the husband's assets, which can not be over 100 liters of gold. The second way is that the church is obliged to feed and take care of the widow if she requested it.
Poor women were also protected. According to the Book of Tsar,[5][circular reference] a person that defamed a virgin has their nose cut off and is obliged to give a third of their assets to the woman. The Proheiron states that if a person has a relationship with a girl younger than 13, that person has their nose cut off, and is obliged to give half of all their assets to the girl. If a person abducted an engaged woman, they were obliged to return her to her fiancée, and if they abducted a woman who was not engaged, they would be obliged to return her to her family, which would later decide if she was to marry her abductor. This regulation was adopted at the Synod of Ancyra. Saint Basil later significantly changed this regulation with the 22nd canon. However, the Book of Tsar[6] and Proheiron were not in agreement on the idea of a woman marrying her captor, they strictly forbade it (according to Proheiron, a parent that wishes his daughter to marry her captor was imprisoned). Civil legislation in the Proheiron states the following in the case of a person defiling a woman with her consent, but without the consent of her parents: If the woman was not engaged, the man who defiled her could choose to marry her, with the consent of her parents. If the parents did not consent, and the man was wealthy, he was obliged to give the woman a liter of gold. If the man was poor, he was obliged to give the woman half of his property. If the man was disabled, he was to be beaten and banished. For an engaged woman if the woman consented, the man was punished by getting his nose cut off. If the woman did not consent, the man was obliged to also give her a third of his property.
In the case of poor women, Zakonopravilo protects them with the following articles:marriage between a guardian (and his closest relatives) and a poor woman was forbidden, to protect her from abuse by her carers.
If moribund parents appoint a guardian for their daughter, he can not marry her off or abrogate a previous marriage without her consent.
Prisoners were considered the most socially endangered of all because in exchange for their freedom even censers were allowed for sale. The importance of freeing prisoners is represented in one specific regulation that says that monks who, when leaving the monastery, ask to have their possessions back even though they were used to release prisoners, will never be forgiven. Anyone could bequeath their property to prisoners for the sake of their release. Prisoners' heirs (especially children) are bound by the law to use the heritage in order to help the prisoner make free. If not, the church shall take away the property and use it with that purpose. If children are to neglect their imprisoned parents, and they manage to free themselves, they have the right to choose whether children will become a part of their will or not. If they fail to free themselves or die while in captivity because of their children's neglect, the children shall be disinherited and the property will be given to the church with the aim of paying ransom for others. The same is the case with relatives who are named as heirs. When a child is taken to captivity, the parents' obligations are not much different. Parents are disinherited if their child dies in captivity because of their neglect. In the aim of releasing captives it was allowed for anyone (older than 18) to take gold as a loan and pawn his own or prisoner's belongings. A male minor is not obliged to have a custodian if his father is held captive, but he needs to have a property guardian. After the father is released the son is back in his power. A woman could also be held in custody and if someone were to pay her ransom she would become his wife and their children would be legitimate. A dying soldier is also considered socially endangered. If a soldier realizes his end is near he can bequeath his property in front of two witnesses and his will be accepted as valid. Exiles and captives were also considered socially endangered. A woman could also sell her dowry in order to feed her exiled father, brother or husband. Those who were captivated temporarily did not lose their inheritance rights.
Many regulations present a contrast between the slave society and Christian teaching. Christian teaching proclaims the freedom and equality of all, including both slaves and masters. However, slavery was so deeply rooted that it took centuries for people to start perceiving slaves as more than things (res). Chapter 55 of Zakonopravilo (Prohiron)[7] states that slavery is in opposition to nature, which made everyone free, but the need for war created slavery since the law of war states that victors rule losers. Also, a person is either born a slave or becomes a slave (in captivity) and all slaves are equal – nobody is more or less of a slave. Slaves could be tortured by masters but the greatest punishment would ensue for a slave who endangers his master's life. A master could be punished if he tortures his slave before killing him, but if he kills him without torture, no punishment is meted out. Two rules were taken from Moses' legislation:
Because of the second rule, it is worse to hit a slave than to hit a freeman. Both master and slave benefit from this – the master makes a profit and the slave is protected from injuries that would cause his value to drop.
More favorable are church regulations. Masters are mentioned in a mindful way so their anger towards the slaves would be reduced, while slaves are not encouraged to rebel. Instead they are asked to be loyal and serve their masters in order to make them more willing to grant freedom. Slaves could be named as priests only with their master's consent and if given they would be set free. If not, and if the slave decided to leave the church and start living a worldly life, a master was allowed to regain power over him for a one-year period. The master's consent was necessary for a slave to become a monk. Those who encouraged slaves to leave their masters, excusing themselves with piety, would be convicted and the slaves who did so would be executed. This regulation shows how slave society released slaves, but also how it protected the piety. For a long time, freeing slaves was possible only in the emperor's chambers until the Synod of Carthage where "the fathers of the synod" asked the emperor to allow slaves to be freed in churches.
Another regulation states that when a master frees his slave before two witnesses, the slave can not be enslaved by anyone. Chapter 40 is named "Chapters of the great church, Hagia Sophia, sealed up with Justinian's golden stamp, about slaves who resort to church" and it contains six rules of which five regard slaves.
One of the most important strides in establishing a more humane relationship towards slaves was to give them the possibility to become heirs. An heir could be their own slave, but they could also be someone else's. The social status of slaves improved when it came to family law. A child conceived between a free mother and a slave father is free because his mother was free while giving birth, even if she was a slave when the child was conceived. If the mother was a free woman when the child was conceived, but a slave while giving birth, the child would still be free. In Alexius I Comnenus's novella (Chapter 46) in the year 1095, slaves were no longer defined as things and their marriage was declared equal to the marriage of free people. Until then, slaves would marry without a church ceremony, because their owners were afraid the church would free their slaves. The emperor declared that the church ceremony should be the same for everyone, and that without it, the marriage would be considered an obscenity. Alexius explained his decision by stating: "There is one Lord for everyone, one faith, one baptism for both slave and master, but what is the difference in faith – we do not know; therefore, all of us are slaves as well to the one that got us out of our slavery".
During the Nemanjić dynasty (1166–1371), the Serbian medieval state flourished in the spheres of politics, religion and culture. Monasteries were built, far more than in previous centuries. The country was expanding and urban life emerged. Trade, mining and manufacturing expanded. The ruling family became prosperous and was known for piety. Formal establishment of a kingdom (1217) and religious independence (1219) came after political efforts by Stefan Nemanja (founder of the dynasty) and his sons, Stefan Nemanjić (the first Nemanjić king) and Sava Nemanjić (the first Serbian archiepiscope). A legal system established regulations for the Serbian kingdom and Serbian church. During this period, only the tsar could establish legal acts and laws to fill the gaps in common law. Industry developed and the legal system regulated various relations. Roman Law was adopted.
Prior to the Nemanjić era, Serbia was not ruled by a tsar, so its ruler could not create a legal code. Rulers enacted individual acts and decrees. In order to overcome this problem and organize the legal system after acquiring religious independence, Saint Sava finished Zakonopravilo in 1219.
Zakonopravilo was essential for religious independence. Saint Sava most likely brought an already written nomocanon to Nicaea, when he traveled there in 1219 to request independence for the Serbian church from the Patriarch of Constantinople. It is unlikely that the patriarch would have accepted an independent Serbian church before he had seen the nomocanon book that would regulate its functioning. On his way back to Serbia, Saint Sava spent time in Thessaloniki where he completed the nomocanon. He most likely began in 1208 while at Mount Athos, using the Synopsis of Stephen of Ephesus; Nomocanon of John Scholasticus; Nomocanon in 14 Titles; the documents of the Ecumenical Councils, which he modified with the canonical commentaries of Aristinos and John Zonaras; local church meetings; the rules of the Holy Fathers; the law of Moses, translation of the Proheiron and the Byzantine emperors' Novellae (most were taken from Justinian's Novellae).
Zakonopravilo was a completely new compilation of civil and religious regulations, taken from Byzantine sources, but completed and adapted by Saint Sava to fit in Serbia. Beside decrees that organized the life of church, norms regarding civil life were taken from the Proheiron.[8]
It consisted of 70 chapters: six in the introduction, 44 dedicated to church law and 20 to civil law. Sava's interpretations increased its value. He dedicated many regulations to the protection of the poor and disempowered. He accentuated the equality of state and church, which led to the acceptance of Symphonia, the orthodox theory that posits that church and state are to complement each other.
Legal transplants of Roman-Byzantine law became the basis of Serbian medieval law and Serbia became part of European and Christian civilization. In the 13th century Zakonopravilo was transferred to Bulgaria and from there to Russia. It was printed in Moscow twice – in 1650 and 1653 under the name of Krmčija and reprinted during the 18th and 19th centuries. The last edition dates to 1914. The first edition was found to be incorrect and the second one was printed in 1,200 copies, of which some reached the Serbs. Since the 17th century the Serbs have used the Russian printed editions of Sava's Zakonopravilo. The name Krmčija was also accepted from Russia and it alludes to the church following the nomocanon. Originally Zakonopravilo didn't contain Zakon sudni ljudem and Sud cara Leona i Konstanina (Slavic alterations of the Eclogue) but the printed version of Zakonopravilo does.
Thus, Roman-Byzantine law was brought to Eastern Europe through Zakonopravilo. In Serbia, it was considered the code of divine law and was implemented into Dušan's Code[9] (1349 and 1354). It was the only code among Serbs during the time of the Ottoman reign.
Multiple transcriptions were preserved:
The legislative tradition of the Serbian people is also to be seen in Montenegro. Just before the loss of their independence in the feudal age, between 1486 and 1490, a short codex was written. It consisted of only seven articles and it is known as Тhe Verdict of Tsar and Patriarch (Суд Царски и Патријаршијски) or The Verdict of Ivan Crnojević (Суд Ивана Црнојевића). It is based on the alteration of Dušan's Code (Душанов Законик) from the fifteenth century. Around the beginning of the 19th century when Montenegro started developing characteristics of an independent country, Petar I Petrović-Njegoš made a Codex of 33 lines (Законик у 33 пункта).
During the Serbian Revolution (1804) priest Mateja Nenadović established Zakonopravilo as the code for liberated Serbia. It was implemented in Serbian civil code (1844). Zakonopravilo is still used in the Russian, Bulgarian, and Serbian Orthodox Churches as the highest church code.[10]
