Zoran Čvorović, LLD*
THE OCCURRENCE AND DEVELOPMENT OF CORPORAL PUNISHMENTS IN RUSSIAN LAW UNTIL XVIII CENTURY
Summary
There is no mention of corporal punishments in the oldest Russian legal documents created during the period between X and XIII century, before the fall of the first Russian state under Mongol rule. Some sources contain explicit testimony that for the Russian customary and legal awareness of the time all forms of corporal punishment of free people were unacceptable, and that the punishment of mutilation are indicated with the words "unknown punishment". This view of corporal punishment came from different legal, not moral views of old Russians in relation to those neighboring nations and states where corporal punishment existed in legal systems, especially in relation to the Byzantine Empire. Corporal punishments were, in legal sense, the term of authority and power of the state and its right to punish (ius puniendi). Hence they were unknown both to the Russians before the Mongol conquest and to all Slavic and Germanic nations on the degree of legal development which is characterized by mixed nature of the offense (private and public law) and where, consequently, punishment also had the purpose of compensation and retaliation. Corporal punishments could not meet this dual function of the sentence, because they exercised only public law purpose of retribution.
Corporal punishments have appeared in Sudebnik from 1497 for the first time, and again in Sudebnik from 1550. Given this time frame, it would be wrong to link their appearance exclusively to the influence of the Mongol-Tatar rule and their legal traditions. Mongol-Tatar rule should be seen rather as one of several factors. There are also reception of foreign law, notably Byzantine, strengthening the Moscow rulers and its elevation to the imperial rank, the existence of medieval slavery, disappearance of blood revenge and ineffective composition system, whose combined impact led, as well as in Western Europe, to the emergence of corporal punishment in the Russian legal documents.
In the XVII century, corporal punishment, and in particulars punishment by beating, became dominant penalty in both system of penalties of the Russian legislation and in court practice. However, this cannot be unilaterally assessed as dehumanization of the Russian retribution policy of the seventeenth century in comparison to the idealized legal antiquity in which there was no corporal punishment. The spread of corporal punishment in the Russian law stands in relation to the process of more intensive legislative intervention by the state in the criminal law sphere which resulted in expanded number of alleged offenses. Expansion of new incriminations is followed by similar expansion of corporal punishments, and in particular of punishments by beating. From the perspective of punitive understanding and capabilities of the seventeenth century beatings imposed as a kind of “punitive panacea”.
Key words: corporal punishment, Russian law, Sudebnik from 1497, Sudebnik from 1550, Ulozenije from 1649