Zakonopravilo

Like it was already mentioned, one of the most renowned topics in Zakonopravilo is social justice, which was quite advanced for this age. Saint Sava expands the boundaries of social justice, confronting the norms of Byzantine civil law and slave society. He accentuates the christian teaching about social justice, justifying it by saying that norms should serve a man and not the public interest. There are a lot of rules about social justice in Zakonopravilo but the most significant one hails from the fourth introductory chapter. This chapter was taken from Saint John Chrysostom's interpretation of "Our father" and it goes like this: Because, he didn't say Mine father but Our father.... So nobody  should ever 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 upon he rules, neither a tsar from the soldier, neither the wisest from the unlearned, because to all he gave one gratitude." This regulation proclaims the equality of all people regardless of their financial gain and their social status, it does not allow oppression and it strives for welfare. It is completely in the contrary to the principles that slave society made back then.

Shelter of the poor and the role of noble homes is mentioned in the 48. chapter of Zakonopravilo in the section named “about court and justice” that was taken from the third and fifth book of Moses. What Sava wanted to emphasize with this section was philanthropy. He stresses out that more attention should be payed to laws than to words, and 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 looking up to rich and powerful was unethical and unacceptable. Some regulations of Zakonopravilo underline that people and institutions which are most likely to be asked to provide protection of the weak are bishops, deacons and prezbyters (basically the church as an institution). Zakonopravilo contains two canons which tell us more about this:

-59. apostles’ canon provides excommunication from the church for bishops or presbyters who won’t give a poor cleric what he’s in need for and taking away their rank if they remain merciless (because they are murderers of their own brother)

-7. canon from Synod of Sardica includes not only the poor but also the ones who are unprotected from violence. Those can seek the help from bishop who is obliged to assist as much as he can or to go to tsar personally and ask him for help if it’s needed.

The more population grew the more grew poverty. Since bishops had to perform their church duties they weren’t able to protect that many powerless people from abusers and famine. The solution was to establish services that the church representatives (ecdics) chosen by tsar would carry out. Ecdics were not only executors of the church but also judges in a way because it was expected of them to defend interests of the church even in the courtroom. However, some ecdics were responsible for more than only church questions. This is known from some tsar’s decrees, for instance: tsar Theodosius the First wrote to Constantinople's ecdic saying he shouldn’t let peasants and citizens be oppressed by taxes, that he should help repressing arrogance of archonts and should take care of his folk as of his children. Because of the importance of his role, participation of respectable citizens leaded by bishop and clergy in ecdic elections is regulated by law.

Another mechanism of help and protection of the poor is mentioned in the second chapter of Zakonopravilo which was taken from Proheiron: "If the self-supporting man is involved in a  lawsuit with his guardian, it is necessary he seeks help."

Proheiron also answers the question of who is considered to be 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 and helpless is building the noble homes (churches, monasteries, hospices, public kitchens, residences of the impoverished, hospitals). Regulations referring to noble homes are mostly taken from John Sholasticus' Canon in 87 chapters or Justinian's Novellae. Here are some of them:

-If the testator informs in writing that he has a wish of founding a noble home, a bishop or a head of that area is obliged to make that happen in a 5 year period and to do as the testator specified in his will (for instance if he selected the administrators he finds suitable).

-Possessions inherited by the church are used for feeding the poor.

-Those who ask to have back their possessions which were already designated for feeding the poor are never to be forgiven.

Noble homes could have been leased but only under the strict surveillance so malpractice and damage inflication are avoided. Every damage just worsens the position of the poor. Lease could be granted for an unlimited period of time. At the same time, ways of making a lease contract were specified, for example by having administrative staff of the noble home swear an oath in front of a bishop promising there will be no damage caused.

Mutual responsibilities of parents and children make another important section of Zakonopravilo that refers to the question of social justice. The author strived to highlight the importance of families, in which life evolves and social awareness awakens. He believed that respecting the parents is one of the greatest family values. This is why those who disrespect it and abuse their mothers or fathers are punished severely-with the death penalty. Proheiron prescribes a milder punishment-those who are guilty shall be disinherited. In case of sickness, children also 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 alienate their property which 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 the father seduces son’s wife or concubine or when parents endanger each other. Children who abandon their parents and excuse themselves with nothing but 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 canon 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 also regulates the way property of those who enter the monastic life should be divided. If a monk has children, he can bequeath his property before or after leaving for the monastery so his children are provided with heritage. If he dies before making a will, children are to take what is their legally while the rest of the property is given to the monastery. Zaokonopravilo lays down the rules of inheritance for children whose father (if he did not live in the monastery) 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 children are hers or from the 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).

Saint Sava payed attention to the old, the powerless and to those with physical deformities too. Since ageing usually comes along with diseases, weakness, sadness...the author's aim was to provide respect and legal protection for this category of people. That is why in the chapter 48 of Zakonopravilo under the "about respecting the graybeards" heading there is to be found 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 that: "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 a opportunity of inheritance. Besides this, the only way for their relatives to inherit them is to manage their property during lifetime. Also, the law dictates that the blind can name their own heir verbally, by having seven or five witnesses present.

The position of women actually represents one of the most important indicators of social awareness in society. Roman marriage law enables a relatively easy divorce by written statement (labellum repudii) or by an agreement (divortum ex consensu). Byzantine marriage law had difficulty in freeing itself from its roman heritage, until tsar Justinian made important limitations to the novellae in 542. which were later transferred to Nomocanon in 14 titles (47th chapter of Zakonopravilo). With this law marital security of women was also strengthened in both families of priests and secular families. When it comes to families of priests, Zakonopavilo dictates that if a prezbyter 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 the ones regulated by law, and weds another he will be denied holy communion, while a woman that leaves her husband will be cursed. The only legitimate reason for a divorce,according to canonical teaching, is adultery. Nevertheless, Saint Sava couldn’t stay within the boundaries of church teaching when it came to reasons for divorce. He prescribes part of a novella written by tsar Leo VI the Wise which states that if a man has an insane wife that doesn’t get better within 3 years, he has the right to divorce her. After that, in the 11th chapter of Proheiron is a list of reasons from which a woman can ask for a divorce: if the husband is working against the state or knows anyone else that might be without revealing it, if he does anything to harm the wife in any way, if he forces her to be unfaithful… For a divorce to happen, in the case of the wife committing adultery, doubt alone is not enough but a 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 also has the right to her husband’s possessions worth up to a third of the premarital gift. In the case of the husband being unfaithful, the woman can choose not to leave her husband if he stops living with another woman after his wife requests it. If a slave was involved in the adultery, the punishments are a little bit more rigorous:

When the husband commits adultery with a slave the act will be revealed to the public, the husband will be punished by beating and the slave will be sold to another region.

When a married woman commits adultery with her slave, she will get punished by beating, cutting her hair, cutting off her nose, banishing and confiscating her belongings and the slave is punished by the sword.

The difference in punishment for men and women for the same act of deviancy is quite apparent. Nevertheless, there are situations in which they will be punished equally – when a man puts the woman’s life at risk, or the other way around, the crime will be revealed to the public and an immediate retaliation is requested.

According to the church, widows and poor women were the most socially endangered group so they were accordingly given the most protection. An article was carried over from The Second Book of Moses to Zakonopravilo stating:” 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 the inheritance she will get (if her deceased husband has up to three children), which is ¼ (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 were to request it.

Just like the widows, poor women were also protected. According to the book of tsar, a person that defamed a virgin will get their nose cut off and will be obliged to give a third of all their assets to the woman in question. Proheiron states that if a person were to have a relationship with a girl younger than 13, that person would have their nose cut off, and will be obliged to give half of all their assets to the girl in question. If a person were to abduct an engaged woman, they would be obliged to give her back to her fiancée, and if they were to abduct a woman that was not engaged, they would be obliged to give her back to her family (parents, guardians, brothers…), which would later decide if she was to marry her captor. This regulation was adopted in Synod of Ancyra. Saint Basil later made some significant changes to this regulation with the 22. cannon. However, the book of tsar and the Proheiron were not in agreement with the idea of a woman marrying her captor, they even strictly forbid it (according to the Proheiron, a parent that wishes his daughter marries her captor will be 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 is not engaged, the man who defiled her can marry her if he chooses to do so, but only with the consent of her parents. If the parents do not consent, and the man is wealthy, he is obliged to give the woman a liter of gold. If the man is poor, he is obliged to give the woman half of his property. If the man is disabled, he is to be beaten and banished. In the case of the woman being engaged there are two possibilities. If the woman consented the man will be punished by getting his nose cut off. If the woman did not consent, apart from getting his nose cut off, the man will also be obliged to give her a third of his property.

In the case of poor women, Zakonoprailo protects them with the following articles:

Marriage between a guardian (and his closest relatives) and a poor woman is forbidden, so that she can protect herself from being abused by the people in whose care she is.

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. Prisoner’s 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 childrens’ 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, parent’s obligations are not much different. Parents are disinherited if their child passes away 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 was 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 of Zakonopravilo represent a great contrast between the slave society and christian teaching. Christian teaching proclaims freedom and equality of all, including both slaves and masters. However, slavery was so deeply rooted that it took a couple of centuries for people to start perceiving slaves as more than things (res). Chapter 55 of Zakonopravilo (Prochiron) states that slavery is opposing to nature which made everyone free, but the need for wars created slavery since the law of war states that victors are to rule the 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. On the one hand, slaves could be tortured by masters but on the other hand, the greatest punishment would ensue for the slave that tries to endanger his master’s life. A master could be convicted if he tortures his slave for a long time before killing him, but if he murders him without torture he will get away with no punishment. Two rules were taken from Moses’ legislation:

1. A master who murders a slave by his own hand is to be punished

2. A slave has its monetary value

Because of the second rule, it’s worse to hit a slave than to hit a freeman. Both master and slave benefit from this- master makes profit out of it and a slave is protected from injuries that would cause his price 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 or slaughter. 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 it was given to them they would be set free. If it wasn’t, and if the slave decided to leave church and start living a worldly life, a master was allowed to regain power over him in a one year period. Master’s consent was necessary when a slave wanted to become a monk too. Those who encouraged slaves to leave their masters, excusing themselves with piety, would be convicted and the slaves who would, would be doomed. This regulation shows how careful and strict slave society was when it comes to releasing slaves, but also when it comes to protecting the real and pure significance of piety. For a very long time, freeing the slaves was possible only in tsar’s chambers until the Synod of Carthage where „the fathers of the synod“ asked the tsar to allow the slaves to be freed in churches too. Next regulation with whom slaves were protected stated that when a master frees his slave before two witnesses, the slave can no longer be enslaved by anyone. Chapter 40. of Zakonopravilo 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 from which only one does not regard slaves.

1. If a freeman is enslaved and he turns to church, his master will be invited and if he doesn’t come than the slave will be freed.

2. If a master or someone else tortures the slave with hunger or nudity, and the master does nothing to stop it, the slave must be sold to somebody else so he wouldn’t die from hunger.

3. Not related to slaves.

4. If a slave resorts to church for no reason, he will be punished and returned to his master.

5. If a slave asked for the master to come and take him home himself, and the master sent a representative instead, in that way disobeying slave’s wishes, the church is obliged to handover the slave nevertheless (for instance- to lord’s most loyal servant).

6. Masters of slaves who escape to church should always be notified to come and take them since running away is offensive and it requires a punishment.

One of the most important strides in establishing a more humane relationship towards slaves was to give them a possibility to become heirs. An heir could be their own slave, but they could also be someone else’s. The social status of slaves was also improving when it came to family law. A child conceived between a free mother and a slave father is free upon birth because his mother was free while giving birth, even if she was a slave when the child was conceived. It also goes the other way around, if the mother was a free woman when the child was conceived, but a slave while giving birth, the child will be a free person. In Alexius I Comnenus’s novella (46. chapter of Zakonopravilo) in the year 1095. slaves are no longer defined as things and their marriage is declared equal to marriage of free people. Until then, slaves would get married without a church ceremony, because their owners were afraid that would make their slaves in to free people. Tsar declared that the church ceremony should 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”.