Protection of childhood in the "Ruska Pravda": historical and legal aspects

Protection of childhood in the «Ruska Pravda»: historical and legal aspects

PhD hab. (history), professor, professor of the department history of Ukraine and law

Anton Syzonenko,

Main part

The Analysis of Sources and Publications. The main documentary basis for the research is three editions of the «Ruska Pravda»: Short, Extended, and Abridged, which interact with each other and show the evolution of princely legislation. All these three editions were analyzed by researchers, translated into the modern literary Ukrainian language with comments and put into a wide scientific use (Demydenko & Yermolaiev, 2017). For scientific research, the articles of the «Ruska Pravda» are used by both historians and legal scholars, who analyze their content from different angles. In historical studies, this written record is used to reveal the state-building processes: the characteristics of Prince Yaroslav the Wise activities (Kostomarov, 1993; Hrushevskyi, 1992; Voitovych, 2006; Tolochko, 2002; Demydenko, 2013; Kraliuk, 2018), the state system and the social hierarchy of society (Honcharenko, 2019; Boiko, 2019) and written records made during the period of his reign (Chubatyi, 2002; Kotliar, 2000; Lytvyn, 2008).

Separately, we should note the legal scholars who analyzed the «Ruska Pravda» and wrote important fundamental works (Yushkov, 2002; Zimin, 1999). In the Ukrainian legal science, we find a significant number of works devoted to the study of the sources of the Kyivan Rus law and the peculiarities of the formation and development of the institution of minors' criminal responsibility (Bedrii, 2014; Bezklubyi, 2010; Vasylkova, 2009; Vecherova, 2010; Honcharenko, 2019; Honcharenko, Rohozhyn & Sviatotskyi, 2000; Kovalchuk, 2008; Zimin, 1999; Kovtun, 2011; Kozachenko, 2010; Kolos, 2011; Krestovska, 2008; Winter, 2016; Melnychuk, 2008; Orel, 2014; Tatsiy, 2017; Padokh, 1948; Savchenko, 2007; Sayenko, 2014; Svitlichnyi, Khriapinskyi, 2014; Cherkaskyi, 1928; Shalgunova, 2011; Khrun, 2007; Yushkov, 2002; Yastrebov, 2011). However, consideration of the main conditions for the formation of the Ukrainian criminal legislation in terms of the criminal liability of the minors requires additional attention, which emphasizes the relevance of the theme of the article.

The purpose of the article is to analyze the historical circumstances of the formation and development of the Old Rus legislation on the problems of child protection; to reveal the peculiarity of the influence of Christianity on the development of legislation on minors; to define the features of the «Ruska Pravda» regarding a criminal responsibility of children.

The Results of the Research. The «Ruska Pravda» is one of the most famous written records of law, which is due to the fact that the compilation laid the platform for establishing a number of social relations, which were transformed with time, acquiring more modern forms. The «Ruska Pravda» partially influenced the development of criminal legislation, creating patterns for certain principles of justice. Scholars point out that customary law created the foundations for the formation and exercise of state power. The legal status of individuals and social groups was also determined by legal customs. Customary law prevailed in private legal relations: property relations, obligations, and inheritance, as well as in marital and family relations. The norms of this law determined the majority of the provisions of legal responsibility and personality of judicial proceedings. Therefore, customary law can be found in all spheres of public life in the Kyivan Rus. The legislation of princes only clarifies it, systematizes it and partially reforms it. Other sources of law supplement and mostly flow into new social relations (for example, the compilations of Byzantine law mainly regulated canonical legal relations that arose from the end of the 10th century). Thus, the customary law of the Kyivan Rus is a system of universally obligatory rules of conduct that emerged from popular experience and established social practice. They regulated the majority of legal relations and were provided by state and social compulsion. Researchers draw our attention to the fact that in chronicle sources, the terms «custom» and «pokon» (i.e. law) are used synonymously (Bezkluby, 2010, p. 37). Thus, customary law is the first attempt of the legislator to create a set of rules for the normal functioning of social relations in the state, which are prohibited for violation, and to form an algorithm for responding to non-fulfillment of the norms set forth. The emergence of customary law was a strong impetus for the then society, which brought the state to a new level of interrelations, including international ones. The fact that custom was equated with the law in terms of legal force also deserves special attention.

Subsequently, the legal development of the ancient Ukrainian state made it necessary to systematize the norms of customary law, as a result of which the most outstanding compilation of ancient Ukrainian law called the «Ruska Pravda» was created. Legal customs, although being conservative, underwent qualitative changes and evolved. The optimal environment for their use and development was «verv». «Verv» was a rural territorial community, which was led by its oldest and the most authoritative representatives. It was they who were connoisseurs and guardians of legal customs, as well as judges of the «verv» court. Therefore, this historical type of the Ukrainian customary law can be called «vervny law» (Hrystiuk & Kozynets, 2015, pp. 97-99). In fact, «verv» became the basis of the customary law of the Kyivan Rus, although this did not prevent the legislator from building other relations, both international and interstate, as well as more sectoral - criminal, procedural, family, etc. Gradually, such legal customs began to divide the population according to gender, nationality, etc., (age was still ignored). The directly legal custom did not always have a «verv» origin and could be formed in other ways, for example, judicial. Therefore, it is not surprising that it is also often called «viche law». In other words, «verv» not only observed and applied legal customs but was also authorized to create them. Obviously, this happened through the establishment of a certain practice of legal relations or through «verv vicha» and courts, when their decisions were repeated in many «vervs» and extended their validity to them. The legal regulation of social relations in the «verv» was based on legal customs, which were a complex and coordinated system called - «verv» law. Subsequently, this system evolved and from the 14th century was transformed into «copne law», the existence of which was substantiated by I. Cherkaskyi (Cherkaskyi, 1928, p. 56). Norms of «verv» law regulated the entire circle of social relations in «verv», except for those that fell under the sphere of regulation of state law. «Verv» law, first of all, determined the peculiarities of the formation and functioning of local self-government bodies, as well as the implementation of judicial proceedings. The form of the contract according to «verv» law was oral. The institution of the death penalty was absent in the customary law of the «verv». Laws adopted by the princes, including the «Ruska Pravda» often duplicated and sanctioned the norms of «verv» law (Bedriy, 2014). The absence of the institution of the death penalty directly confirms the relative preserving of humanism of the customary law. The «Ruska Pravda» was compiled in such way that the interests of almost all sections of the population were protected. The initial text of the «Ruska Pravda» has not reached us. However, it is known that the sons of Yaroslav in the second half of the 11th century supplemented and changed it significantly, creating the so-called Pravda of the Yaroslavichs. At present, 106 copies of the «Ruska Pravda» are known, compiled during the 12th - 16th centuries, which are usually divided into three editions: Short, Extended and Abridged. As experts note, the appearance of the systematized normative act in the 11th century, named the «Ruska Pravda», is determined by the previous, centuries-long evolution of the development of the legislation of the Rus state (Kolos, 2011, pp. 113-114). The «Ruska Pravda» is a monument of customary law, which expressed the interests of the community built on the principle of original equality. The provisions of the «Ruska Pravda» embodied Christian traditions, established many norms about crimes and punishments, developed a number of important legal categories, and laid the foundations for the development of various institutions of criminal legislation (Savchenko, 2007, pp. 42-43). In general, it should be noted that during this period the Ukrainian criminal law was formed on the humanistic principles of Christian teaching without the need to use cruel methods of influencing a person's behaviour, the need for which traditionally arises under conditions of a social conflict (Nazymko, 2016, p. 109). Speaking about this historical period, it is necessary to highlight its main differential features: 1) integration into wide application the principle of original equality; 2) preservation and dominance of the Christian traditions; 3) preservation of the powerful position of the church; 4) development of more relevant ways of responding to illegal acts; 5) differentiation of the legislative relationship according to gender and national characteristics; 6) relative preservation of the principle of humanism.

The influence of the church on the state-making and law-making policy of the princes should not be ignored. After all, the Christian worldview was reflected in the rules governing almost all existing social relations. The Christian tonality of the paradigm of a criminal law indicates a certain return to the origins of the specified branch of law formation with the reproduction of other basic principles of its application than those that did not take into account the mentality and worldview of the Ukrainian people, that, together with baptism, was involved in the humanistic, philanthropic principles of law in general, and a criminal law in particular (Kozachenko, 2010, p. 195). The adoption of Christianity in the Ukrainian lands determined the formation of the purpose of punishment as atonement for sin, the criminal's repentance, his awareness of the criminal, sinful nature of his actions (Bezklubyi, 2010, p. 61). In the worldview of the Ukrainian people, the child appears as God's messenger. People have always believed that every family should have many children. It is not by chance that the wish was expressed in wedding songs: «To have a house full of children», «God will give children, he will also give something to support children», «Is there greater treasure than having children are in good order» (Svitlychnyi & Khryapinskyi, 2014, p. 31). We find the first normative regulation of family values and protection of childhood in the Bible (Nazymko, 2016, p. 109). The Bible laid the ground for building the basis of a criminal legislation both in general and in terms of the criminal responsibility of the minors. The majority of the general socially dangerous actions were forbidden by religion even in ancient times and provided for punishment at God's judgment for sins (which, in fact, were criminal offenses in their modem sense). The Bible is the primary source of a criminal law, which is characterized by a clear procedure for determining the sinfulness (illegality) of an act and establishing the principles of responsibility (Nazymko, 2016, pp. 109-110). As N. Krestovska notes, the regulation of relations between parents and children was to some extent influenced by the Moses' law, the source of which was the Holy Script (Krestovska, 2008, p. 80). It should be noted that during the period from the 18th century till the beginning of the 20th century both in Western Europe and in the Ukrainian lands, the role of the church was quite significant. Special forms of placement and re-education of juvenile offenders developed and survived for more than a century, and with the beginning of the activity of special courts for juveniles, they were actively used by the latter through appropriate appeals to the church community, monasteries, and laity institutions (Vecherova, 2010, p. 37). Through religion, it was easier to influence the mind of a minor. We can single out several reasons that led to such influence of Christianity on law-making work: 1) the majority of the population were believers, which simplified interaction with them through «divine mediation»; 2) religion gave rise to morality, in connection with which the spiritual population was always a highly moral population; 3) the value of religion lies in the fact of shaping over the years the idea about «healthy» norms of behaviour, and therefore it could be taken as a basis for a unified system of statebuilding; 4) normalization is material and therefore formalizes relations, religion spiritualizes them, i.e. takes them to a new level of worldview. It should be noted that during the time of the Kievan Rus, under the rule of the Christian legal doctrine, violation of God's Law was considered a crime (Kushynska, 1999, p. 91). As O. Kozachenko notes, «a significant number of crimes under the criminal law that operated in the Ukrainian lands entailed liability in the form of a fine, and if we take into account the fact that the fine had two forms - «vira» (which was administered to the disposal of the state, its representatives) and «holovnichestvo» (money was sent to the victim as compensation for the damage caused), then we can conclude that the Ukrainian criminal law became the basis of European development, which is characterized by the humane attitude towards the criminal and protecting the rights of the victim, even during the period of its formation (Nazymko, 2016, p. 110). Therefore, the Law of God was recognized as the supreme, in connection with which the majority of issues of a normative nature were resolved through the prism of religion and the church. The history of the Ukrainian criminal legislation development testifies that during the time of our lands being under the power of other states, attempts were made to move the Christian postulates beyond the limits of a criminal law regulation of social relations. However, these provisions have always been considered in national doctrinal criminal law circles, have retained their importance and at present are being revived in Ukraine. Compliance of criminal law prohibitions with the Christian principles is gradually recognized as a principle or rule in the field of a criminal law. The attitude towards the principle of «talion» in the application of punishment depended to a large extent on cultural factors. Even according to the Christian worldview, the ethnicization of philosophical thinking took place in the context of the New Testament humanism, with a corresponding distancing from the philosophy of punishment according to the Old Testament (Nazymko, 2016, p. 111). In these sources, the attitude towards punishment as an act that must take place had already been outlined in dotted lines not in accordance with the Old Testament principle «tit for tat», but in accordance with the New Testament truth of saving the soul, and not only that of a criminal, who is given a chance for correction, but also those people who would take the sin upon their souls in case of execution of the sentence (Melnychuk, 2008, p. 106). At the current stage of the psychology of children's development in view of the process of reforming criminal legislation in the field of punishment of the minors, it is necessary to focus on the Christian forgiveness, the power of which is aimed at restoring and preserving the moral and spiritual state of both the criminal and the victim, which makes it possible regarding the depth of the conflict to achieve effective methods of solving it (Nazymko, 2016, p. 112). Therefore, in terms of the development of the criminal law of minors, the church made the following corrections: 1) integrated the philosophical principles of understanding illegal behaviour not only in terms of its social danger but also in the context of immorality and guilt; 2) formed a value system of social relations, in which the protection of morality and spirituality of the population comes first; 3) created the basic foundations on which the institute of criminal law and criminal responsibility should be built; 4) recognized childhood as the highest value. The criminal responsibility of the minors in the time of the «Ruska Pravda» was just emerging, which is due to the lack of a legislative approach to the understanding of a child as a subject of a criminal offense, as well as a generally simplified type of source. The «Ruska Pravda» did not contain any system of crimes and knew only two types of them: against a person and against property. The main purpose of punishment in the Kyivan Rus' was primarily to compensate the victim and his relatives, as well as replenish the state treasury. One cannot also deny such a poorly expressed goal as revenge (Orel, 2014). The system of punishment according to the «Ruska Pravda» was quite simple. In this monument, ancient elements of custom related to the principle of «taliona» («tit for tat») in cases of blood feud have been preserved (Vasylkova, 2009, p. 86). However, the provisions of the «Ruska Pravda» also provided for the replacement of blood revenge, which was revenge on the criminal by the victim or his relatives, with «vira» - a monetary fine. Subsequently, blood revenge was limited (Article 1 of the Korotka Pravda; Article 1 of the Prostorova Pravda), and then completely prohibited (Article 2 of the Prostorova Pravda) (Honcharenko, Rohozhyn & Sviatotskyi, 2000, p. 85). According to the Extended Pravda: «After the death of Yaroslav, his sons Iziaslav, Sviatoslav and Vsevolod and their men Kosniachko, Pereneh, Nikifor gathered again and replaced the blood feud with a monetary fine; and everything else was established by his sons, as Yaroslav used to judge» (Sayenko, 2014, p. 273). The principle of «talion» in a transformed form is preserved in a modern criminal legislation when it comes to the principle of proportionality of the criminal punishment to the severity of the socially dangerous act that was committed. At the same time, the transition to property punishment once again confirms a certain humanism and democracy of the legislator of that time. According to the «Ruska Pravda» the next severe type of punishment was a monetary fine in favour of the prince for killing a free man («vira»). The size of the «vira» corresponded to the importance of the crime: the «vira» dyka was taken from the parish in which the body of a person was found, murdered with or without intent; «vira» poklinna was appointed by denunciation; «vira» is poklepna (klepna) - an unjustly brought accusation of a crime. The above is confirmed by Art. 89 of the Prostorova Pravda, which provided for the responsibility for killing a servant or slave. In this case, «vira» was not repaid. A serf owner who lost his property was paid an «urok», and the prince - a «prodazh» (sale). This refers to the killing of someone else's slave since the master's killing his own slave was not considered to be a crime (Orel, 2014, p. 402). The latter also refers to the cases of the master's child murdering his own slave, for which the punishment was not applied. On the other hand, criminal acts committed by serfs were not considered to be crimes and did not attract punishment, since the serfs were not free (Shalhunova, 2011, p. 65). Consequently, the legislator's idea of the limits of a criminal responsibility regarding the minors for their committing socially dangerous acts is gradually shaping. At the same time, the main attention is paid to violent offenses, for the commission of which the «Ruska Pravda» establishes an equal amount of responsibility irrespective of the subjects' age. In the text of the «Ruska Pravda» there are also such types of punishments as: vyazba (imposing shackles on a prisoner), toll - a payment that was collected from the master of a runaway slave for his capture, lovnychestvo, holovnychstvo (the penalty for murder), hrabezh (in general, one of the types of punishment for a committed crime), kaznyt (punish), potok (punishment, which, at the will of the prince, can be either exile with the destruction of property, or imprisonment of the accused, or turning him into slavery: «Ачебоудетьконевыйтать, авыдатиКнязюнапотокъ» (Vasylkova, 2009, pp. 86-87). «If there is a horse thief, he must be given to the Prince for punishment». It is necessary to note the fact that ancient Ukrainian criminal law was generally quite democratic, which is explained by the democratic socio-political system of the Kyivan Rus (Padokh, 1948, pp. 119-127). The Code was drawn up according to the causal system, the legislator tried to predict all life situations in which crimes are most often committed, and to develop optimal measures of influence for their commission. For example, for the murder of a person during a quarrel or in a drunken state, if the killer managed to hide, then the neighbourhood (branch) where the murder was committed pays a fine for him - dyka vira, but in different terms of time and during several years. In case, if the murderer does not hide, then half of the tax is collected from the neighbourhood or parish - 20 hryvnias, and the rest is to be paid by the murderer. If the murder occurred without any quarrel, the parish does not pay for the murderer, but gives him «na potok» - or into the hands of the owner - together «with his wife, children and estate» (Nazymko, 2016, p. 115). According to O. Yastrebov, the latest provision of the criminal law for our time, seems to be very cruel and unfair, but at that time it was believed that the wife and children were responsible for the guilt of the husband and father since they were his property (Yastrebov, 2011, pp. 64, 65). The latter provision is rather unusual for customary law, considering religious platforms. An example is the provision of the Bible, which says that children should not be responsible for the sins of their parents. In this regard, imposing the punishment for the offense committed by the parents was inappropriate. At the same time, it can be stated that children during the princely period were recognized as the property of their parents, and therefore the legislator's attitude can be called somewhat contemptuous. The character of development of the domestic criminal law of that period testifies a considerable influence of the population upon shaping criminal-law relations. In this context, it is worth mentioning the words of the Ukrainian scholar and statesman S. Shelukhin: «the will of the people was the right and law for the prince, and the prince's wish was only his claim, the achievement of which depended not on his right, but on the right and will of the people» (Hetmanchuk & Turchyn, 2006, p. 109). There were numerous cases of reconciliation between a juvenile offender and a victim or his relatives in particular, either by revenge or by refusing it in case of receiving monetary payment for the damage caused. The «Ruska Pravda» did not know such an abstract concept as crime: everything that causes direct damage to a specific person, his personality and property was maleficent, and that is why, the crime was called «obraza» (insult).

Accordingly, the «Ruska Pravda» knows only two types of crimes - against a person and against property. There are no state, official, or other types of crimes in it (Nazymko, 2016, p. 116). For that period of time, the actualization of minors as objects of legislative influence would mean, their recognition as a full-fledged members of society. On the one hand, this would expand the subject composition of the «insult», on the other hand, it would fundamentally change the course of society, which could have not entirely desirable consequences for the principality. Recognizing the leading role of a man made it easier to establish the limits of responsibility and choose the measure of punishment, that is why, women and children who were related to that man were subjected to certain repressions as an additional influence on the offender. This, of course, is a direct violation of the principle of individualization of punishment, and therefore unusual and unacceptable for modern state. According to N. Kovtun, during this period we can only talk about the emergence of the institution of additional punishments for the minors, whose main purpose was to increase responsibility (Kovtun, 2011, p. 12). As E. Vecherova notes, the minors had not yet been singled out as special objects of influence in the Ruska Pravda (Kovtun, 2011, p. 12). This state of affairs in the field of regulation of criminal liability of the minors is explained by N. Krestovska by the low level of juvenile delinquency during that period, which actually became a byproduct of industrial civilization. According to the scholar, «…the irrelevance of the problem of combating juvenile crimes left it on the sidelines of the legislator's attention» (Krestovska, 2008, p. 88). In general, the «Ruska Pravda» did not know the age limit of criminal responsibility, therefore it did not highlight the specifics of the criminal responsibility of the minors, and the system of punishment for the minors had not been discussed yet.

During that period, the majority of the interests of the minors remained outside the criminal law protection, which, on the one hand, testifies for the lack of experience and imperfection of the then legislation, and on the other hand, for the existing hierarchy of social relations, social benefits and interests at that time (Svitlychnyi & Khryapinskyi, 2014, p. 65). In modern Ukraine, the legislator has also built a certain hierarchy of social relations, which is completely opposite to the ancient one.

During the period under analysis, people were under the rule of mostly religious, rather than secular norms. Therefore, the age of criminal responsibility was also religious. A person was considered as God's creature, developing according to established laws. Violation of criminal prohibitions was considered to be a sin. That is, the personality of a criminal was characterized by the existence of sinful principles in a human being. And a potential possibility of sin was determined from the age of seven (Shalgunova, 2011, p. 67). In general, it must be recognized that at the early stages of the Ukrainian statehood formation, its criminal law was characterized by much greater humanity and leniency towards a guilty person as compared to similar norms of the Roman law and formed on it based Western European law (Vecherova, 2010, p. 51). It should be noted that during the above mentioned period trial of children or adolescents and passing sentences to them were carried out primarily by tribal, religious and other similar traditional institutions on the basis of religious, family, moral and ethical regulators. As we can see, at the early stages of the Ukrainian statehood formation, the first foundations for shaping the institution of juvenile punishment were laid in criminal law (Nazymko, 2016, p. 117). Thus, we can say that the main features of the «Ruska Pravda» in view of the criminal responsibility of the minors are: 1) lack of a clear idea of a socially dangerous act and its potential consequences; 2) lack of individualization of criminal punishment and final differentiation of its limits depending on the type of criminal offense; 3) absence of the minors in the subject structure of criminal offenses; 4) relative humanity and democracy; 5) the Christian concept is integrated and actualized in legal norms.

The Conclusion. Thus, the conducted research allowed us to sum up, that the «Ruska Pravda», did not allocate the minors to a separate category of criminal liability. At the same time, the platform for building specific relations with such people was laid, and their potential public danger was recognized.

It is also worth noting that custom was equated with the law in terms of legal force. It has been found out that for that period actualization of the minors as full-fledged objects of legislative influence would mean their recognition as full members of society. On the one hand, this would expand the subject structure of the «insult», on the other hand, it would fundamentally change the course of the society, which could have less desirable consequences for the principality.

Recognizing the leading role of a man made it easier to establish the limits of responsibility and choose the measure of punishment, that is why, women and children who were related to that man were subjected to certain repressions as an additional influence on the offender. This was a direct violation of the principle of individualization of punishment, and therefore unusual and unacceptable for the modern state. It was established that the «Ruska Pravda», in fact, did not single out the minors as a special category of subjects of criminal liability. Historical circumstances of the formation and development of the Old Rus legislation have been traced. The reasons for which Christianity had an influence on law-making have been highlighted.

The main features of the «Ruska Pravda» in view of the responsibility of the minors have been singled out, which are: 1) lack of a clear idea of a socially dangerous act and its potential consequences; 2) lack of individualization of punishment and final differentiation of its limits depending on the type of offense; 3) absence of the minors in the subject structure of criminal offenses; 4) relative humanity and democracy; 5) integrated and actualized Christian concept in the norms of the Old Rus legislation.

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