On the application of Byzantine law in modern Bessarabia

Pergament does not consider the influence of Bessarabian legal practice that used Roman and Byzantine law at compiling Donic's extracts. The latter's aim was to assemble a manual for studying the law in force. Therefore, he could ascribe the Modern Greek and Bessarabian practice to Roman and Byzantine law. Here the approach of the prof. Pergament is not dialectical, but a rigid one.

The Senate's method and juridical way of decision-making when it had to deal with the Byzantine law of Bessarabia can also be well illustrated by the so-called case of Vartik (Decision of the Civil Department of Cassation of the Governing Senate of the Russian Empire. 1909 No. 35). The case is worth noting since the Senate presented in it the patterns of practical treatment of Roman and foreign law, a contemporary legal doctrine, possible legal borrowings from abroad and their implementation in the Russian Empire.

Dmitry Vartik was an adulterine half-brother of Basil Vartik and inherited to him by operation of law. Other relatives of Basil contested Dmitry's right to be an heir for he was an adulterine son. G. Blumenfeld, author of a complete work on the Roman fideicommissum (Blumenfeld, 1912), defended Basil's interests as an advocate. On the opposite side a famous Russian advocate V.F. Plevako represented the interests of a few claimants.

The Senate decided to reveal the true content of the local Bessarabian law to check if an adulterine half-brother was allowed to inherit by operation of law. The question was examined by the Senate's reference to Harmenopoulos's and Donic's compilations, connected with the Code of Justinian (the statements of the Hexabiblos in the new Greek text, were quoted in the Russian translation made by the Senate's printing office in 1831 and reprinted in 1854; statements in the old Greek text were quoted in the Russian translation completed in St. Petersburg University while carrying out the case at the request of the Kishinev district court; the statements of Donic's compilation were quoted according to the Russian translation printed in the Senate's printing-office in 1831; the texts of the Corpus juris civilis of Justinian and of the “Basilics” were quoted in the Russian translation after the most recent German editions of the Latin original texts).

The Senate performed a linguistic analysis of the Russian translation and of the Hexabiblos in the New Greek language and detected serious divergences between them that, anyway, cannot conceal the general sense of hereditary legislation in the case of halfbrothers. Therefore, the Senate rejected the application of the appropriate general provision of the Imperial common law on the subject since the case could be solved under the provisions of the local law. The Senate admitted that a blood relationship of Justinian's law was placed in the basis of Roman hereditary legislation due to the gradual dying of the agnation principle of the ancient ius civile in the later history of Roman law. It is well-known that in the early Roman law cognates were connected either by blood relationship (cognation) or by the artificial tie of agnation. The foundation of agnation was not the marriage of father (paterfamilias) and mother, but the authority of the father (paterfamilias). All those persons were agnatically connected together who were under the same paternal power (patria potestas). The agnates were also those who have been under this power, or who might have been under it if their lineal ancestor had lived long enough to exercise his patria potestas. However, in the Later Roman Empire agnation disappeared, and the family law and the law of succession were already based only on cognation.

In the cognation-system the Roman legislation was based on a conjecture that relations among relatives are formed by birth in a legal marriage or in its legal kinds¹⁶. The Governing Senate of the Russian Empire thoroughly considered the problem of ancestry in Roman law and made the conclusion that the principle of blood relationship was so clear and consistently expressed by Roman lawyers that it should be applicable to an adulterine child if necessary. The Roman jurisprudence's logic demanded the admittance that an adulterine child was also a blood relative as a legitimate one; and the difference between them was that a legitimate child's father was his or her mother's husband while an adulterine child did not have a father in this sense. Due to this difference, a legitimate child was a cognate to his or her mother and her husband, also to all the persons connected by a blood relationship, while an adulterine child was a cognate only to his or her mother and the persons connected with her by a blood relationship. The Senate quoted the Institutiones as this common origin was expressed in the fragment Inst. III. V., § 4. The Senate considered as the common origin of Greek and Roman laws that adulterine children, according to the agnatic system of being deprived of the hereditary rights by operation of law, became cognates to their mother and her relatives (cognates) without any differences between children born in marriage and adulterine ones and therefore they acquired the right to inherit.

The Senate took into consideration some exceptions to the rule existing under the provisions of the Codex of Justinian¹⁷, Novellae¹⁸, Digestae16 ^{C. V XXVII, § 7.}

17 C. VI. LVII, 5.

18 Nov. XII, LXXXIX, 15.

19 D. XXXVIII. 8, 2, X. 10, § 6.

20 Bas. XLV II, § 7, 9., Basilics²⁰, and dealing with the cases of children who were born because of a high-ranking woman's accidental connection or adultery, incest or another type of criminal sexual relation.

The conclusion was made by the Senate that Basil's adulterine brother had the right to inherit from him. Such a conclusion was supported by opinions of many researches of Roman law in Russian and West European legal literature where under the Roman laws adulterine children inherit from their mother by kinship as the children born in marriage According to: Vangerow K. A. Lehrbuch der Pandekten. 1852. T. II, § 413; Dernburg H. Pandekten. 1901. T. III, § 135; Keller F. Pandekten. 1867. T. II, § 467; Windscheid B. Pandekten. 1901. T. III, § 571; Glьck C. F. Intestaterbfolge nach den Grundsдtzen der дltern und neuern Rцmischen Rechts. 1822. § 138 (Decision of the Civil Department of Cassation of the Governing Senate of the Russian Empire. 1909, No. 35)..

The Senate pointed out that Harmenopoulos's text in the old Greek on the rights of half-brothers and half-sisters should be treated on the bases of original norms of Roman law. The claimants suggested implementation of a stricter interpretation of the Hexabiblos in the case of adulterine children, referring to the Christian religion's influence. But the senators rejected that argument which, as it might seem, should have been received by them with respect. They suggested a punctual interpretation of original sources of Greek and Roman legal rules, since pre-Christian norms were legally binding only when they were kept original and unchanged. In this form, they must have been included in Harmenopoulos's and Donic's compilations that were admitted merely as the transmitters of the provisions of Roman law.

Blumenfeld, while acting in the interests of Dmitry, referred to the conclusions of the literature on Roman law contemporary to him and to the Civil Codes of Western Europe. His opponents contested his dependence of these sources pointing out that a literate editing of the monuments of Roman law had been made through a theoretical analysis of Roman institutions and ideas as well as through broad generalized principles, for the `science' of Pandect law was developing in the West due to the demands of the new life and must have correlated not with abstract historical researches but with practical aims of the epoch and of the people.

The Senate disagreed with this objection in concreto and stated that it would be acceptable only for the interpretation of the foreign codes which accepted Roman law as their bases only as far as it correlated with local norms, opinions and requirements. The Senate also rejected the claimants' opinion that those scholars who were making their research of this issue of Roman law aimed to study Roman law itself without attempts to develop its particular provisions for their proper application under new specific conditions of a concrete place or for their compliance with the requirements of the present time. In the view of the Senate, the conclusions of those scholars who were specialized in Roman law studies were very valuable and could certainly serve to search for answers to questions regarding the practical application of the good law of Bessarabia.

Then the Senate referred to the Civil Code of Callimachus Codul Calimach, editie criticд, Editura Academiei RPR. Bucuresti, 1958. Accessed November 20, 2020. , compiled for Moldavia in 1816 and 1817, and to the Code of John Caradja for Wallachia of 18 1 7 Codul Caragea. Accessed November 20, 2020. , as well as to the Civil Code of Romanian kingdom of 1864 Codul Civil din 26 noiembrie 1864. Accessed November 20, 2020. . They also stated that research of the development of the Roman law's origins in Moldavia and Wallachia that were related to it through local codes could be rather useful for a practical judicial procedure in the Russian Bessarabia. However, first of all it was necessary to consult Roman law but not the mentioned compilations. In the opinion of the Senate, the compilations of Harmenopoulos and Donic were useful but not because they contained interpretation of laws from original sources. Consequently, if the rules of these compilations are doubted, they should be explained not according to the codes of Moldavia, Wallachia and Romania but on the basis of the sources of Greek and Roman legislation.

The Latin text of the Institutiones edited in Germany by Kruger was used by the Senate although the claimants referred to the editions of Beck and Cujacius that were interpreted in their favor. The Digestae were also used as the argument D. XXXVIII. 8, 2.. The Senate believed that despite the Hexabiblos and the compilation of Donic had the force of law in the Bessarabian region, the provisions deriving from the Digestae were also binding. In addition, in order to have the local laws been interpreted correctly they should be not only explained, but also developed on the bases of those Byzantine laws that had served as their sources (Code of Justinian, Novellae, Basilics). Going further with this starting point the Senate arrived at the conclusion that according to Justinian's legislation, the problem under discussion was resolved correctly, that is in this concrete case -- in favor of the defendant Dmitry. The Senate stated that the lower court (the Judicial Chamber) did not acknowledge Dmitry's rights to inherit to Basil only due to the lack of a clear indication of such possibility in the compilations of Harmenopoulos and Donic, but vise versa, there were some points in these compilations which could be understood as instructions to rule not in the defendant's favor.

According to the Senate's opinion, the lower instance (the Judicial Chamber) acknowledged a substantial logical contradiction in the interpretation of the positive law of Bessarabia, since if it found the appropriate provisions of the compilations of Harmenopoulos and Donic unclear, it must have interpreted them in the sense of their original historical sources and according to them it should have come to a positive ruling.

In the given case one can see that the Russian senators regarded Roman law as a ratio scripta and its pagan pre-Christian character could not undermine their position. They did not sacrifice the clearness of Roman law, considering it to be an important value, in favor of their Christian convictions and the Orthodox protective governmental policy.

Conclusions

At the moment of Bessarabia's annexation to the Russian Empire, the Hexabiblos being a practical compilation of local laws was used in this country as well as other monuments of Byzantine law, mainly the Basilics. The Manifesto of 1812 and other Imperial decrees gave Bessarabia the right to use the local legislation which combined all the norms of the Basilics. The texts of the Hexabiblos of Harmenopoulos and of the Law Book of Donic were binding as far as they correctly revealed the essence of norms of Byzantine law.

Russian lawyers referred to the historical method of interpretation of the Bessarabia's local laws. Due to the extreme difficulty and confusions of Bessarabian law (which was called “a juridical labyrinth”) (Pergament 1905a, 25) this method was considered to be not only a true scientific way of juridical interpretation, but also the only possible and reliable practical technique. The judicial practice (including that of the Governing Senate of the Russian Empire) adhered to this method. The courts of Bessarabia in cases of dealing with unclear, insufficient, controversial local laws were to rely on the general sense of laws that were in force in the region. And these laws, in case of doubts, could be interpreted through the prism of their historical origin as well as in comparison with their historical sources.

Overall, we can say that local laws of Byzantine origin were used in Bessarabia except the districts of Izmail and Ackerman. Local laws were applied in Bessarabia in cases connected with the local people. The local laws consisted of those monuments of the Byzantine and Roman laws that were in force in Bessarabia when it formed part of the Russian Empire. The Hexabiblos and the Donic's Law Book were only special collections (compilations) of these laws. The application of these texts was determined by their adequacy to Byzantine and Roman laws. When there were any contradictions, unclearness and insufficiency of local legal provisions, controversial issues were solved through the general sense of the local laws. As a result, in application of the Bessarabian law one had to take into account the history and dogma of Roman and Byzantine law. The common imperial legislation was only to be used in cases of an absence of the applicable provisions of the local law.

Due to the predominantly agrarian and patriarchal origins of the law applicable, strong survivals of feudal order in it and the general lagging of Bessarabia (and of the Imperial Russia in general) behind the industrially developed countries of that time (French, Germany), Russian lawyers had to refer to foreign experience in regulating new bourgeois relations. The Russian legislators' juridical techniques were based on the achievements of Roman and foreign law. The foreign legal influence was reflected in legislation practices and legal procedures because Russian lawyers had received their education mainly studying Roman law and foreign legislation. Russian academics, judges and senators constantly expressed their respect to Roman law, Roman juridical experience and also to the contemporary `legal science, especially to that of Germany. However, the borrowing of juridical constructions and definitions is not evidence of the direct transplantation of Roman and foreign legal institutions. We see that many traditional legal institutions acquired another focus and shade on the Russian national soil. Besides, one should not forget that the majority of the Russian Empire's population (Russian peasantry and many ethnical minorities) lived under the customary law. The question of whether folk law and the people's view of the law should be applied or if it was better to apply the centuries-old Roman and other foreign experience had remained unsolved until the beginning of the First World War, which finally resulted in the total collapse of the Russian Empire.

For more details on the application of Byzantine law in Bessarabia as a part of the Russian Empire see also: (Avenarius 2014, 467-481; Kodan, Fevralev 2012, 124-154; Kodan, Fevralev 2013; Medvedev 1995; Rudokvas, Novikov 2017, 605-608).

References

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