Academic journal article Kritika

Muscovite Judicial Duels as a Legal Fiction

Academic journal article Kritika

Muscovite Judicial Duels as a Legal Fiction

Article excerpt

The Sudebniki (law codes) of 1497 and 1550 contain numerous, prominently placed, and detailed provisions on judicial duels to resolve disputes between litigants concerning such things as assault, theft, and loans. The same codes mention trials where the testimony of witnesses is heard but contain few provisions on how to conduct such trials--for example, what evidence is admissible, how much evidence is necessary, who can testify, and how the evidence is to be weighed. The Sudebniki likewise contain few substantive rules of law from which a judge could determine which party would win once he had all the evidence. One might therefore expect from reading the Sudebniki that most civil disputes were resolved by duels. In fact, no records of disputes resolved by duels survive from the 15th and 16th centuries. We have, at the same time, hundreds of published records of civil trials from the same centuries where each side presents evidence in the form of oral testimony and documents to a judge, who decides the case with apparent fairness.

Thus, when read together with the surviving judgment charters, the Sudebniki pose the paradox of describing in detail an archaic procedure, judicial duels, that does not appear to have been widely used (if used at all), while failing to describe a more modern mode of adjudication that was in fact commonly used to resolve civil disputes. The present study considers the provisions in the Sudebniki on judicial duels as a classic example of a legal fiction. A legal fiction is a procedure or rule that is proclaimed as the law but is in fact recognized by both judges and litigants as involving a fiction or as a mere formality. Legal fictions commonly arise where the law is changing or where some new situation or problem cannot be fit into commonly accepted legal rules or popular perceptions. They are often used to mask or soften change and reform.

Two excellent studies have highlighted the provisions on duels in the Sudebniki as a legal fiction. In a 1962 article, Horace Dewey reviewed these provisions and concluded that the 1550 Sudebnik had elaborated the procedure on dueling in so much greater detail than the 1497 Sudebnik that it appeared that the procedure was still "evolving." While he recognized that there were no judicial records of duels (other than the somewhat unreliable accounts of foreign travelers), the very fact that each new Sudebnik, including the 1589 and 1606 versions, contained new provisions on dueling, indicated that it was still being practiced, or at least that it was considered worthy of legislative attention. Dewey's study poses the issue of why legislation continued to articulate a procedure when there is no other evidence of its use. (1)

In her groundbreaking study of judgment charters, Ann Kleimola analyzed several hundred judgment charters from the 15th and 16th centuries. (2) These judgment charters are summaries of trials, presenting the parties' positions and contentions, the testimony of witnesses or content of relevant documents, and the result. While the governing law is generally not cited or described, the judge (who is sometimes the tsar but usually one of his boyars or okol'nichie) seems to decide the case fairly. The side with the better evidence or the more credible account of the disputed events wins. The side found to have lied or to have produced a forged document loses. In a small fraction of these judgment charters (less than ten of the hundreds examined) one of the parties challenges the other to a duel, or the witnesses challenge each other to a duel, or the judge asks parties whether they are willing to go to the dueling field. But for one reason or another the duel itself never occurs. Kleimola observes that the mere willingness of a party to challenge the other often helps the challenging party to prevail, although usually the result is justified by the evidence. Sometimes a party without evidence would issue a challenge, only to have the judge ferret out the evidence. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.