публикация №1400070054, версия для печати


Дата публикации: 14 мая 2014
Автор: Galina Derbina, Candidate of Law, Assistant Professor, Senior Research Fellow, Fr. Skaryna National Centre for Science and Education, Minsk
Публикатор: Алексей Петров (номер депонирования: BY-1400070054)
Источник: (c) http://library.by

In 1569, the magistrate of Mogilev found the secular marriage between Nelida Tishkovich and Klishka Ivanovich legal on the basis of Nelida?s complaint that her husband, having promised to marry her, had lived four years with her and then started putting her out. Ivanovich recognised Nelida as his wife before the headman, bailiffs and shopkeepers of Mogilev and confirmed their marriage. What was the basis for the magistrate to consider the case liable for the church jurisdiction and to protect the interests of a woman regardless of the church law and secular legislation?

In 1569, the magistrate of Mogilev put on trial the case of violence against the wife of Y. Prozorovich, who announced in court that he was unwilling to have a wife who had appealed to the court for the protection of her rights and was questioning her husband?s testimony in the courtroom. To prove his rightfulness, he proposed to subject his wife to torture. The court, seeing an uncivil and stubborn person, sentenced Y. Prozorovich to imprisonment until respectable people bailed him out or his wife decided that he was no longer dangerous for her. On what grounds could the society doubly punish for heavy crimes against women, for their insults and disrespect in the courtroom? Why did it seek to establish the priority of law firmly in its life and admitted the women?s exposure to the law?

The answer lies in the fact that a specific feature of Renaissance in our country was a high level of the development of law, protection of matrimony and family institutions, and the strengthening of woman?s position in society.

The 16th century in Belarus was the golden age of culture and fundamental changes, defined in the European history as the Renaissance. The subject of a family and its role in the society, in the upbringing of a new man and in provision of stability of society was touched upon both by European humanists and such known philosophers, theologians, politicians and scientists of our country, as N. Gusovsky, F. Skarina, A. Volan, M. Litvin, C. Budny, P. Skarga, P. Roizy, A. Alizorovsky.

Renaissance added a new savour into the life of society. Historical documents preserved wonderful examples of female emancipation in those times. Some of them prove women?s demonstration of their power (economic, military) in the settlement of disputes. For instance, Ganna Borzobogataya-Krasenskaya raided her neighbours? estates. When, on the king?s order, irregulars of Rzecz Pospolita of the whole province came out against her, she headed the hayducks (rebels) personally and inflicted a crushing defeat on them. Other materials reveal an active role of women in all political and religious trends: they acted as enlighteners, founders of monasteries and printing houses, etc.

The law in Belarus of the 16th century, as a special institution of public regulation, was a highly developed system that incorporated the new and the best from European legal systems. It explicitly reflected a real status of woman and her attitude towards family and matrimony. Family relationships were regulated by a broad variety of sources of law: customs, legislation, judicial precedent, and law doctrine.

It is during this period that the law played a special role as one of the thrusts of the Renaissance culture. The authority of law, domination of the idea of legality contributed to the growth of popularity of legal knowledge within the society. Particular attention was attached to professional training of local lawyers. The right to go abroad was laid out in the Privilej Law of 1447. Ordinarily, legal education was received in the universities of Prague, Krakow, Padua, and in Germany. In Belarus, law was taught in the St. Jan School of Civil Law in Vilna, in Calvinist and Arian schools, and in private palestras (attorneys? organisations). In the 16th century, when all necessary conditions for the development of the system legislation had been set up, we had highly trained professionals - both academics and practicing lawyers. Special (Statute) commissions included Doctors of Law F. Skarina, V. Chyrka, Y. Taliat; later - Y. Domonevsky, A. Rotondus, P. Roisy; practical lawyers A. Gashtovt, A. Valovich, M. Volodkovich, P. Astrovetsky, S. Gabrialovich, and L. Sapega. As a result of law codification, legislation - one of the best in Europe of the 16th century - was developed.

The new legislation was worked out in the form of three Statutes - of 1529, 1566 and 1588. They were based on new ideas and principles: the provision of state sovereignty, single legislation, and the priority of law. The popularity of the idea of legality, as a basis of a civilised society, provided prerequisites for a successful extensive work over domestic laws during the 16th century.

Despite the fact that the 1588 Statute represented legislation, which was developed rather successfully, and was in force until 1840, customary, canon, Magdeburg and Roman law traditionally complemented our national legal system. Customary and canon law regulated matrimonial relationships in the aspect of our interest. The Magdeburg law played an important role in the regulation of property relations. It contained pre-bourgeois morals, consolidating, for the first time, the principle of equal rights of man and woman.

Matrimonial relationships were originally regulated by customs. However, upon the adoption of Christianity they subsequently passed to the church jurisdiction.

In the 16th century customary law was still very significant. Under it, a contractual character of matrimony implied an observation of a number of customs to make marriage valid: matchmaking, marriage contract, wedding ceremony and celebration of wedding. If a marriage contract was annulled at a matchmaking stage, this did not entail any legal consequences. A final consent was achieved by signing a marriage contract on the principal issues of a family life: bride?s property; guarantees for the preservation of her property and support by the groom; date and conditions of marriage, etc. Concurrently, denomination of would-be children was defined, if both bride and groom - which was often the case - were of different Christian confessions. The condition on the denomination of would-be children was strictly observed. The results of agreement were put down in judicial books. The annulment of agreement at this stage would entail a fine and property reimbursement of costs.

In 1547 pan Jan Yakubovich Montovt Koblinsky passed estates to his wife as a satisfaction for the violation of a pre-marital condition on the daughter?s baptism into the mother?s faith - Orthodoxy. Pan Jan baptised his daughter in compliance with the Roman Catholic ceremony, thus violating one of the conditions of the marriage contract.

The next stage of the marriage process was a wedding ceremony, but the ultimate moment was marriage celebration. Under the customary law the dissolution of marriage took place on mutual consent. Both sides presented divorce papers to each other in the presence of witnesses, allowing each other to re-marry. A local clergyman often attended this ceremony.

A vivid example is dissolution of marriage of Grand Duke Andrew Kurbsky with Princess Maria Golshanskaya. This case was considered in 1578, 1581, and 1582. For the first time the marriage was annulled by the spiritual court on the grounds of family disagreement, i. e. in accordance with custom, which contradicted the spiritual law. The case was then reconsidered, and due to very celebrated family scandals the spiritual court resolved that their marriage was dissolved anyway, and they were not allowed to marry unless one of the former spouses died.

Historically, Christianity in Belarus was accepted in two rites: Eastern and Western, each of them having different sources for regulation of marital relationships.

Main conditions for entering into marriage were: mutual agreement of the parties, achievement of the marital age, intellectual and mental adequacy, absence of close blood and civil relationship (adoption), and absence of actual marriage with another person. In case of violation of any of these conditions, marriage was annulled. Marriage dissolution was considered differently by Eastern and Western churches (Russian Orthodox Church admitted divorce conditioned by certain reasons, whereas Roman Catholic Church never recognised it).

Adultery, along with impotence, mutual decision to take the monastic vows, etc., was the main reason for divorce. However, husband?s and wife?s adultery was defined differently by the church. A husband was considered an adulterer in case of a sexual intercourse with a married woman or marriage without having divorced. A wife was considered an adulterer in case of any extramarital affair - with a married or single man. Thus, men had the right to demand faith in marriage. Legally, husband was guilty in respect of another husband, not his wife. Married man?s affair with unmarried woman used to be condemned from the viewpoint of the morals. Her relatives, in this case, could punish unmarried woman by disinheriting her. With an unfaithful wife, not only could a husband annul his marriage, but also punish her. Roman Catholic Church recognised the indissolubility of marriage. However, it admitted separate life of spouses without the right of getting married because of the same reasons. The institution of finding marriage invalid, in case of infringements of entering into marriage, became widely popular with the canon law, which made re-marrying possible.

Family relationships were regulated, to a degree, by secular legislation. The basis was laid by the first 1387 Common Zemstvo Law, confirming the rights of boyar women (the gentry) to get married without a monarch?s consent. Subsequently, marital relationships gained more detailed regulation only in the Statutes of 1529, 1566 and 1588. A principle of free matrimony for women of any social class was confirmed. To develop the norm of free entrance into marriage, severe sanctions (death penalty) were stipulated for the compulsion to get married or forced marriage. To be sure, fiancйe?s freedom to enter into marriage was restricted, to a degree, by her parents? or guardians? blessing. Without their consent, a fiancйe would be deprived of her dowry and inheritance rights. Yet, the marriage remained valid, for woman had a free choice. At the same time, man was not restricted by his relatives in regard to his choice of a wife. In case of their dissent, he bore no property sanctions.

Secular legislation regulated dissolution of marriage only in the 1588 Statute. Marriages between close relatives were annulled. Incidentally, punishment of spouses and their children depended upon the guilt of the parties: marriage was dissolved, and if it was found invalid, children were recognised as illegitimate and did not inherit their parents? property. In this case, former spouses would lose the right to use their property.

The secular law only regulated property-related relationships. During marriage dissolution, the spiritual court would decide on the divorce and the parties? guilt, whereas the secular court would resolve issues relating to the division of property. If husband was to blame, he would lose his right on the inheritance intended for his wife?s support. If wife was guilty, she could be deprived of her dowry and subsistence in favour of her husband. If there were any children, they were recognised as their parents? property owners. The guiltless spouse would possess and use the property until the children?s full age.

The property basis of a family consisted of wife?s dowry and husband?s possessions that formed inherited property of their children. The legislation had provisions for different procedures of inheriting after father and mother: after father three fourths of the property were inherited by his sons, whereas after mother children inherited property in equal proportions. Pursuant 1566 Statute, in case of a non-religious marriage or refusal from fatherhood, children were recognised as illegitimate. Therefore, the role of religious wedding ceremonies had increased since the second half of the 16th century.

According to the law, spouses had separate possessions and could not inherit each other. Only 1588 Statute, influenced by the Magdeburg Law provisions on the equality of spouses? rights on joint possessions, confirmed spouses? inheritance rights.

One of the vivid demonstrations of women?s independent status in Belarus was their right to inherit one forth of father?s real estate, which was confirmed in the Statutes. This norm proved a radically new approach of legislators towards woman?s role in the society, as opposed to the neighbouring countries. However, not all public figures supported this novelty of the 1529 Statute. A. Volan and M. Litvin regarded it as a negative phenomenon, traditionally considering the subordinate role of woman in the society as a norm. On the other hand, O. Levitsky, a well-known researcher of the matrimony and family institution of the 19th century, believed that women in this country had never experienced "monastic immuring, bitter domostroy slavery and oppression" that Moscovian women were subjected to. Financial support of women?s rights played a crucial role on the way towards equality of their civil rights.

Woman?s subordination to the family and the society was reflected most explicitly in the institution of guardianship. The basis of the legislation was established by the concept of guardianship as responsibility of relatives and the state to care for the individuals who cannot take care of themselves - underage children, unmarried women, and sick people. The Statutes are believed to have significantly restricted women?s rights to guard children under the influence of the Roman legislation. Earlier widows could automatically become a guardian and a trustee. The Statutes restricted their guardianship rights by appointing husband as the guardian in testaments. Thus, legislators were trying to preserve the rights of husband?s heirs. However, women possessed the right to go to court in case their guardianship rights were violated, which could lead to the cancellation of guardianship.

In the 16th century the legislation that confirmed new principles of the status of an individual in the society developed extensively, in Belarus. In the spirit of the epoch, individualisation of family relations took place, and the tendency to safeguard property and personal rights of each family member was reflected in the law. Legislative differentiation and endorsement of personal and property rights of women facilitated their development and subsequent elimination of limitations in the public sphere.

Humanisation, rationalisation, and conceptualisation of the law, as well as Old Belarusian used instead of Latin as a state language inspirited the vivid renaissance character of the legislation, marked by researchers. The 1588 Statute proclaimed equality to the law, and value of the human personality that eventually became an integral part of the concept of a law-governed state.

Many researchers assessed the new legislation as a model of superb codification in the history of the European law that had explicitly reflected the nature of the Renaissance. High level of legislation was susceptible of impact on the neighbouring countries. It was incorporated in Poland to fill in the blanks in laws, used for the reception in Russia in the elaboration of the "Code of Alexei Mikhailovich", had an impact on the legislation of Moldova and so on.


1 Acts from the books of the Magistrate of Mogilev, Historic and legal documents from the official books of Vitebsk and Mogilev provinces, 1876, Vol. 7.

2 Lithuanian metrics: sixth book of lawsuits, Vilnius, 1995.

3 Statute of the Grand Duchy of Lithuania, 1588, Minsk, 1989.

Опубликовано 14 мая 2014 года

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