Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
Revue d’Histoire du Droit 80 (2012) 77-93
The Legal History Review 80 (2012) 77-93
The Code of Dušan 1349–1354
Paolo Angelini*
Summary
In 1349 Stefan Dušan enacted a code that was part of a tripartite codification with the Abridged
syntagma and the so-called Law of Justinian. The Serbian emperor introduced in his empire a
Byzantine legal system, even if elements of Slavic customary law were preserved. Physical
mutilations and punishments, death penalty, public penal system, personal liability were
unknown to the Slav populations and have to be connected to the Greek-Roman law influence.
This influence is evident both in civil and criminal law and in this sense the dispositions of the
Code of Dušan must be connected to the two other Byzantine compilations. Dušan’s attempt
failed just a few years after his death because of the fall of the Serbian empire due to the Ottoman
advance.
Keywords
Code Dušan, Byzantine influence, Serbian criminal law
On the 16th of April 1346 (Easterday), after conquering the Balcan provinces
of the neighbouring Byzantine empire1, Stefan Dušan received the imperial
crown by the Serbian and the Bulgarian patriarchs2.
Three years later, in a synod formed by noblemen and the highest ranks of
Serbian and Greek churches, the emperor enacted a codification with legal
force on the territory of the newborn empire. The Code of Dušan3, extended
* Dr. Paolo Angelini, Research Fellow, Catholic University of Leuven, Research Unit Roman
law and legal history, St.-Michielsstraat 6, B-3000 Leuven, Belgium; paoloangelini/1981@
gmail.com.
1
For the historical events see: G. Ostrogorsky, Storia dell’Impero bizantino, Torino 1968,
p. 452–480; K. Jireček, Istorija srba, vol. 1, Beograd 1978, p. 211–235.; G.C. Soulis, The Serbs
and Byzantium during the Reign of Tsar Stephen Dušan (1331–1355) and his Successors, Athens
1995, p. 31–155.
2
The manuscript of Ravanica (see infra, n. 15) contains a biography of the emperor Stefan,
with the description of the coronation. His wife received the imperial title too. On the other
hand his son Uroš got the title of ‘rex iunior’. The events are also narrated by Nikeforos Gregoras,
who obviously underlined how the coronation made by the Serbian king was in fact a selfproclamation: J.P. Migne, Patrologia graeca, vol. 148, Paris 1865, col. 983–984.
3
Reference critical edition: N. Radojčić, Zakonik cara Stefana Dušana 1349 i 1354, Beograd
1960. The other relevant critical edition: S. Novaković, Zakonik Stefana Dušana cara srpskog,
1349–1354, Beograd 1898 (Beograd 2004).
© Koninklijke Brill NV, Leiden, 2012
DOI: 10.1163/157181912X626920
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in 1354, was the third part of a legislative codification together with two
Byzantine legal compilations, the so-called Law of Justinian and The Abridged
syntagma of Matthew Blastares.
Like the Byzantine rulers, Dušan promulgated a codification to encourage
the transition from the Serbian tribal monarchy to a new legal system. His
ultimate objective was to seize Constantinople and his codification would
have juridically supported his ascent to the throne as basileus4 of the second
Rome5.
Analysing Dušan’s legislation, the first issue to be dealt with is the relationship
between the Code of Dušan, the abridged version of the Syntagma of Blastares
and the so-called Law of Justinian6.
The most important scholars have already contributed in underlining the
connections between the three parts of the codification. F.F. Florinskij has
for a long time examined its handwritten tradition, and as a result of an
exhaustive phylological and paleographical analysis, emphasized the tripartite
structure of Dušan’s codification7. At the end of the 19th century, S. Novaković,
the author of the first critical edition, has confirmed the links of the code
with the Byzantine legal compilations, showing the influence of Greek-Roman
law8. In accordance with Florinskij and Novaković, A. Solovjev has shown
4
In many chrysobulla and prostagmata, redacted in Serbian language and promulgated after
the elevation to the imperial dignity, Dušan bears the title of carĩ Srĩblemĩ i Grĩkomĩ (emperor
of the Serbians and the Greeks), even if with significant variations. On the other hand in the
documents redacted in Greek we will find the constant use of the intitulatio Στέφανος ἐν Χριστῷ
τῷ θεῷ πιστὸς βασιλεὺς ϰαὶ αὐτοϰράτωρ Σερβίας ϰαὶ Ῥωμανίας. The term Grĩkomĩ is used
as a replacement for the genitive τῶν Ῥωμαίων. G. Ostrogorsky, Vizantija i Sloveni, Beograd
1970, p. 333–336; See also: M. Dinić, Dušanova carska titula u očima savremenika, in: Zbornik
u čast šeste stogodišinjice Zakonika cara Dušana, Beograd 1951; M. Dinić, Srpska vladarska
titula za vreme carstva, ZRVI, 5 (1958), Beograd 1958; S. Šarkić, L’idée de Rome dans la pensée
et l’action du tsar Dušan, [Da Roma alla terza Roma, 10], Roma 1991, p. 141–166; N.
Oikonomides, Emperor of the Romans – Emperor of the Romania, in: Βυζάντιο και Σερβία κατά
τον Ι∆´ αιώνα, Αθήνα 1996, p. 121–128.
5
The Code of Dušan at the 40th chapter refers to ‘the previous orthodox emperors’ whereas at
the 176th chapter confirms the being in force of the law in the imperial territory, as it used to
happen at the time of the ‘previous emperors’: where the mentioned emperors were the Byzantine
ones of whom Stefan considered himself the successor.
6
There are two redactions of the imperial codification: the older one is divided in three parts
(10 versions) and composed by the Code of Dušan, the Abridged syntagma and the so-called
Law of Justinian = (A + B + C); the cadet redaction (15 versions) is composed by The law of
Justinian Constantine and The law of the Macedonian emperor Stefan = (B1 + C1) = [(B + 1/3 A)
+ (C + 1/4 A)]. A. Solovjev, Zakonik cara Stefana Dušana 1349. i 1354. godine, Beograd 1980,
p. 75.
7
F.F. Florinskij, Pamjatniki Zakonodatel’noj dejatel’nosti Dušana carja Serbov i Grekov, Kiev’
1888.
8
The critical edition of the text is followed by a juridical commentary: S. Novaković, Zakonik
Stefana Dušana cara srpskog (supra, n. 3).
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
79
further elements concerning the juridical links between the dispositions
contained in The Code Dušan and in the Byzantine compilations9.
In accordance with the most important scholars’ theories, the Code of Dušan
must be constantly analyzed and compared with the two compilations, which
it was strictly connected to.
Manuscripts, editions and translations of the Code of Dušan
The original version, probably conserved in the imperial chancellery, has
not been yet discovered; according to S. Novaković’s theory, it could have
been written as chrysobulla10. However, Solovjev stressed that in the 14th
century, the decisions of the Byzantine or Bulgarian synods were written on
giant parchment manuscripts (συνοδικοὶ τόμοι) undersigned in gold characters
by the emperor and all the members of the synod: the first Serbian emperor’s
code could have been drafted11 following this procedure.
There have been discovered12 25 transcriptions, of which the most important
ones are the versions of the manuscripts drawn up between the 14th and 15th
century, due to their closeness to the original version, such as the manuscripts
of Struga, Athos, Prizren, Hodoš, Hilandar, Studenica, Bistrica13. The other
versions, that may be dated back to the 16th and 17th centuries, have a
secondary importance and could be considered as copies of the older
manuscripts. The only exception is the Rakovac one containing 11 paragraphi
unici, copied at the beginning of 18th century.
The first printed edition, published in 1795 in Vienna by J. Rajić, was
based on the Tekelija’s manuscript, containing a recent version (17th century)14.
9
In accordance with Florinkij’s theories, Solovjev has underlined that the three parts of the
codification are copied in continuo and that the Code of Dušan is always combined with the
Abridged syntagma and the so–called Law of Justinian. A. Solovjev, Istorija slovenskih prava /
Zakonodavstvo Stefana Dušana cara Srba i Grka, Beograd 1998, p. 401–447. See also: A.
Solovieff, Le droit byzantin dans la codification d’Étienne Douchan, Paris 1928, p. 8–10.
10
S. Novaković, Zakonik Stefana Dušana cara srpskog (supra, n. 3), p. LX–LXV.
11
A. Solovjev, Istorija slovenskih prava (supra, n. 9), p. 325.
12
The manuscript of Rudnik was burnt in 1941 during the Nazi bombing of Belgrade.
13
Manuscript of Struga 1395 (State Library, Moscow, Cod. 29 M 1732), Manuscript of Athos
~1418 (State Library, Moscow, Cod. 28 M 1708), Manuscript of Hilandar 15th century
(Library of the monastery of Hilandar, Cod. 300), Manuscript of Studenica 1426/36 (Zagreb,
Academy of Sciences and Arts, Cod. IV d 114), Manuscript of Bistrica, 1444/54 (State Historical
Museum, Moscow, Cod. 151), Manuscript of Prizren MS, late 15th or early 16th century
(National Library of Serbia, Belgrade, Cod. 688), Hodosh MS, ~1440 (National Museum,
Šafarik’s collection, Prague, Cod. IX F 10). A. Batrićević, Legal transplants and the Code of the
Serbian Tsar Stephan Dušan: a comparative study, Belgrade 2007, p. 41.
14
N. Raič, Istorija raznyh slavenskih narodov naipače Bolgar, Serbov i Horvatov, Vol 5, Viennje
1795,
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During the 19th century the majority of the manuscripts was discovered
and published, but initially only four manuscripts were edited15. In the last
quarter of the century a great contribution has been made by the Russian
scholar F.F. Florinskij, who in his monumental work edited the integral texts
of four manuscripts16.
In the 20th century other versions were discovered and published, like the
manuscript of Studenica17 and other so-called coastal manuscripts18. And
only in the last three decades, in order to facilitate a comparison of different
texts, the most important ones have been reprinted and published in three
volumes19.
The critical edition published by S. Novaković, at the end of the 19th
century is worth mentioning, such as the recent one edited by N. Radojčić
in 195020 and reprinted ten years later21. Both the Novaković and the Radojčić
edition were supplied with a wide critical apparatus. There it is possible to
find a reconstructed text composed by 201 chapters, through the collation
of 6 different manuscripts22.
Since the first manuscript has been discovered, French, Russian, Polish an
German scholars focused their attention on the Dušan code and in this way
several translations and commentaries were edited in different countries and
languages.
In 1801, just a. few years after its discovery, the manuscript of Tekelija
was translated into German by F.Ch. Engel23 and in 1840 into French by
15
The manuscript of Rakovac was published by Šafarik: P.J. Šafarik, Uebersicht der vorzüglichsten
schriftlichen Denkmäler älterer Zeiten bei den Serben und anderer Südslawen, Wiener Jahrbücher
der Litteratur, 53 (Januar–März, 1831). The manuscript of Hodoš was published in: W.A.
Maciejowski, Historija prawodawstw sławiańskich, Warszawa 1832–1835. The manuscript of
Prizren was integrally published by S. Novaković in: S. Novaković, Zakonik Stefana Dušana
cara srpskog, Beograd 1870.
16
Florinskij edited the manuscripts of Ravanica, Sofia, Athos and Struga. As previously
underlined, the two last manuscripts have a primary importance. F.F. Florinskij, Pamjatniki
Zakonodatel’noj dejatel’nosti Dušana carja Serbov i Grekov (supra, n. 7), p. 1–59.
17
V. Mošin, Vlastareva sintagma i Dušanov zakonik u Studeničkom “Otačniku”, Starine JAZU,
42 (1949).
18
V. Mosin, Bogisicev Dalmatinski rukopis i mladja redakcija Dusanova zakonodavstva, [Anali
Historijskog instituta Jugoslavenske akademije u Dubrovniku, 2], Dubrovnik 1953, p. 9–58.
19
G. G. A. A., Zakonik cara Stefana Dušana, I: Strupški i Atonski rukopis, SANU, Beograd
1975; G. G. A. A., Zakonik cara Stefana Dušana, II: Studenički, Hilandarski, Bistrički rukopis,
SANU, Beograd 1981; G. G. A. A., Zakonik cara Stefana Dušana, III: Prizrenski, Baranjski,
Šišatovački, Rakovački, Ravanički i Sofijski rukopis, SANU, Beograd 1996.
20
N. Radojčić, Dušanov Zakonik, Novi Sad 1950.
21
N. Radojčić, Zakonik cara Stefana Dušana (supra, n. 3).
22
The following manuscripts have been used to reconstruct the text: Ms. Athos, Ms. Bistrica,
Ms. Hodoš, Ms. Prizrent, Ms. Rakovac, Ms. Struga, Eleven chapters are collated with the
Rakovac manuscript, and they must have been promulgated either by Dušan’s son and successor
Uroš, or at the time of the Serbian Despotate, in the first quarter of the 15th century.
23
F.Ch. Engel, Geschichte des ungarischen Reiches und seiner Nebenländer, Halle 1801.
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
81
A. Boué. In 1858 the Polish translation of the manuscript of Hodoš, with
the variants of the manuscript of Rakovac, was edited by W.A. Maciejowski24.
In 1870 S. Novaković edited a modern Serbian translation25, based on the
manuscript of Prizren with the variants of the Rudnik manuscript26. In 1872
F.F. Zigel’ published the Russian translation27, based on the Prizren manuscript
and supplemented with 24 chapters of the Rakovac manuscript28.
In 1905 J. Peretz edited the Rumanian translation29, and twenty years later
M. Dolenc published the Slovenian one30. The first English translation, based
on the second Novaković’s edition (1898), was published in 1949 by M.
Burr, who served as officer in the Balkan front during the first world war31.
N. Radojčić’s Serbian translation is considered to be the best one, because
of its attinence and closeness to the medieval text32. Also noteworthy and
very useful, especially to Western scholars, are the German translations by
P.J. Šafarik and J. Gerassimovitsch33, the French ones by P. Lebl34 and
J. Milovanović35 and the English one by Đ. Krstić36.
The tripartite codification
The Abridged syntagma was the more extended part of Dušan’s tripartite
codification. It is necessary to refer firstly to the integral version of the Syntagma,
redacted by the hieromonk Matthew Blastares (as the author himself wrote
in the προθεωρία, in the year 6843 ab origine mundi, (1334–1335 a.D.)37.
24
W.A. Maciejowski, Historya prawodawstw sławiańskich, vol. 6, Warszawa 1858.
The first Serbian translation is attributed to Pantelić in: Ć.R. Pantelić, Dušanov Zakonik,
Sudski list, 1 Beograd 1869.
26
S. Novaković, Zakonik Stefana Dušana cara srpskog, Beograd 1870.
27
The first Russian translation was made by the archbishop Filaret (31 chapters): Filaret
arhiepishop černigovskij, Svjatye Južnyh Slavjan, Černigov 1865.
28
F.F. Zigel’, Zakonnik Stefana Dušana, S. Peterburg 1872.
29
J. Peretz, Zakonikul lui Ştefan Duşan ţarul Serbiei 1349 şi 1354, Partea I, Bucureşti 1905.
30
M. Dolenc, Dušanov zakonik, Primerjalni prikaz pravnih razmer po Dušanovem zakoniku in
po istodobnem germanskog pravu s posebnim obzirom na Slovence, Ljubljana 1925.
31
M. Burr, The code of Stefan Dušan Tsar and Autocrator of the Serbs and Greek, The Slavonic
and East European Review, 28 (1949).
32
The translation into modern Serbian follows the critical edition of the text: Radojčić, Zakonik
cara Stefana Dušana 1349 i 1354 (supra, n. 3).
33
P.J. Šafarik, Uebersicht (supra, n. 15); J. Gerassimovitsch, Duschans Gesetzebung, Verfassungen
des serbischen Kaiserreiches, Bonn am Rhein 1912.
34
P. Lebl, Le code Douchane, Etude sur l’histoire du droit public serbe, Paris 1912.
35
The French translation is based on the Athos manuscript: G. G. A. A., Zakonik cara Stefana
Dušana, I Strupški i Atonski rukopis (supra, n. 19).
36
Đ. Krstić, Dushan’s Code: The Bistritza transcript, Introduction and translation by Đ. Krstić,
Београд 1994.
37
I.P. Medvedev, La date du Syntagma de Matthieu Blastarès, Byzantion, 50 (1980), p. 338–339;
C.G. Pitsakis, De nouveau du Syntagma de Matthieu Blastarès, Byzantion, 51 (1981), p. 638–639.
25
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The Σύνταγμα κατὰ στοιχεῖον38 was a collection of canon and secular laws
divided in 24 alphabetically arranged sections39. Each chapter of the different
sections was introduced by a rubric concerning the matter it regulated40; in
order to help the reader, the author added an alphabetical index after the
προθεωρία41. The text of the chapters was composed by canon laws, followed
by secular laws introduced with a second rubric, νόμος, νόμοι, νόμοι πολιτικοὶ.
Several chapters were composed exclusively by canon law and in some cases
by secular law.
The Syntagma of Blastares could be considered as a Nomocanon: 3/4 of its
dispositions were extracted from canon law and dedicated to ecclesiastical
matters; only 1/4 of the dispositions was dedicated to civil matters. With the
use of the alphabetical index42 it could have been utilized as a juridical
encyclopedia as well.
The jurists of the Serbian imperial chancellery have integrally translated
and later abridged the Syntagma of Blastares43, eliminating the majority of the
canonical dispositions44 and preserving the secular ones; the corpus of the text
was reduced to 1/3 in comparison to the integral version of Blastares45.
S. Novaković has dated the abridgement back to the first quarter of the
15th century, at the time of the Despotate of Lazar46. The theory has been
decidedly rejected by A. Solovjev, who has antedated the abridgment between
1346 and 134947. This eminent Russian scholar has underlined that in the
Abridged syntagma all the dispositions are introduced by the rubrics zakonĩ
carĩski i ústavĩ carĩski (‘imperial law and imperial judgement’): in the
15th century Serbia was reduced to a semi-independent political entity, so
38
Hereinafter: Syntagma of Blastares.
The most important editions are: G.A. Rhallis / M. Potlis, Σύνταγμα τῶν θείων καὶ ἱερῶν
κανόνων, VI, Ἀθῆνησι 1859 (repr. Ἀθῆναι 1966); J.P. Migne, Patrologia graeca, 144–145,
Paris 1865 (hereafter: PG 144, PG 145); N. Il’inskij, Sintagma Matfeja Vlastarja, Moskva 1891;
S. Novaković, Matije Vlastara Sintagmat, Beograd 1907. About the Syntagma of Blastares: P.B.
Paschos, Ὁ Ματθαῖος Βλάσταρης καὶ τὸ ὑμνογραφικὸν ἔργον, Thessalonique 1978; Ν.Π.
Μάτσης, Περί την κριτικήν του Συντάγματος του Ματθαίου Βλάσταρη, Ἀθῆναι 1979–1980;
Σπ. Τρωϊάνος, Περί τας νομικάς πηγάς του Ματθαίου Βλάσταρη, ΕΕΒΣ, 44 (1979–80), p.
305–329; P.B. Paschos, Ἅπαντα τὰ ὑμνογραφικὰ τοῦ Ματθαίου Βλάσταρη, Athènes 1980.
40
There are 303 chapters .
41
See also: J.A.B. Mortreuil, Histoire du droit byzantin, vol. 3, Paris 1846, p. 315–322.
42
It is uncertain which compilations Blastares used for the redaction of the syntagma. N. van
der Wal / J.H.A. Lokin, Historiae iuris graeco–romani delineatio, Groningen 1985, p. 117.
43
About the integral Serbian version of the Syntagma of Blastares: F.F. Florinskij, Pamjatniki
Zakonodatel’noj dejatel’nosti Dušana carja Serbov i Grekov (supra, n. 7), p. 307–321.
44
In the Abridged syntagma some canonical dispositions were preserved, for example at the
chapters A-1 and A-2, about the orthodox faith and the heresies.
45
About the Abridged syntagma see: F.F. Florinskij, Pamjatniki Zakonodatel’noj dejatel’nosti
Dušana carja Serbov i Grekov (supra, n. 7), p. 322–439.
46
S. Novaković, Zakonik Stefana Dušana cara srpskog, 1349–1354 (supra, n. 3), p. CXLVIII
– CXLIX.
47
A. . Solovieff, Le droit byzantin dans la codification d’Étienne Douchan (supra, n. 9), p. 17–18.
39
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83
it seems improbable that the copyists could have rubricated the dispositions
as imperial laws or imperial judgements. The redaction of the Abridged syntagma seems to be exclusively datable between Dušan’s coronation (1346)
and the promulgation of the imperial codification (1349). The Syntagma of
Blastares had been drafted by the Greek monk only a few years earlier and
displayed the basic rules of civil and criminal law. This is the reason why it
could had been considered the ideal juridical compilation by the Serbian
chancellery48.
As far as the juridical aspects are concerned, the Abridged Syntagma contained
dispositions on civil law such as sale, pledge, gift, marriage and dowry as well
as on criminal law, such as rape, fornication, theft, homicide, crimes against
religion. Just a few dispositions were dedicated to public law49, whereas no
traces of juridical procedure can be found. In the Code of Dušan, civil law
was limited to dispositions mainly concerning the estate of noblemen or
displaying some other matters. Considering Dušan’s attempt to create a
juridical system, the absence of dispositions regulating the basic aspects of
civil law in the Code of Dušan, could be considered a further element confirming
its connections with the Abridged syntagma.
The so-called Law of Justinian50 is the second part of the Serbian imperial
codification51. This is a short juridical compilation of only 33 chapters, chiefly
containing dispositions of the Byzantine agrarian law and displaying agrarian
relationships in the Serbian rural society, as far as free peasants and farmworkers are concerned52. On the other hand the Code of Dušan regulated the
juridical position of the meropsi (sing. meropah), peasants strongly tied to the
48
The Syntagma of Blastares had a great impact not only among Slavic populations: it has been
used in Moldavia (16th century) and Georgia (18th century) as legislative code. J. Panev, La
réception du Syntagma de Matthieu Blastarès en Serbie, in: Le droit romano-byzantin dans le
Sud-Est européen, [Études balkaniques, 10], Paris 2003, p. 27–45.
49
The chapters B-5 Περὶ βασιλέως and Π-8 Περὶ πατριάρχου of the Syntagma of Blastares
(corresponding to the second and the third title of Eisagoge) have not been included in the
abridged version.
50
The most important editions of the manuscripts of the so-called Law of Justinian are contained
in: R. Hubè, O znaczeniu prawa rzymskiego i rzymsko-byzantyńskiego u narodów slowianskich,
Warszawa 1868 / R. Hubè, Droit romain et gréco-byzantin chez les peuples slaves, Paris – Toulouse
1880, p. 55–62; F.F. Zigel’, Zakonnik Stefana Dušana (supra, n. 28); F.F. Florinskij, Pamjatniki
Zakonodatel’noj dejatel’nosti Dušana carja Serbov i Grekov (supra, n. 7), p. 204 – 211; A. Solovjev,
Istorija slovenskih prava / Zakonodavstvo Stefana Dušana cara Srba i Grka (supra, n. 9),
p. 540–544; B. Marković, Justinijanov zakon, Srednjovekovna vizantijsko-srpska pravna compilacija,
Beograd 2007, p. 53–61.
51
There are two versions of the so-called Law of Justinian. The short one, contained in the
tripartite version, is more ancient than the extended one. F.F. Florinskij, Pamjatniki Zakonodatel’noj
dejatel’nosti Dušana carja Serbov i Grekov (supra, n. 7), p.448 – 491.
52
The corresponding Greek term is γεωργὸς μορτίτης (lat. colonus partiarius).
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land, considered as objects pertaining to the rural estates with relevant personal
restrictions, first of all, to their freedom of movement53.
More than 2/3 of the dispositions contained in the so-called Law of Justinian
derivate from the Prochiron, Ekloge and especially from the Nomos Georgikos54:
Byzantine compilations had great impact on Slavic populations and were still
applicated in the 14th century55.
From the agrarian law must have been extracted 13 chapters (§§ 13–25)56,
disciplining the emptio and venditio, permutation of rural estates, agrarian
work activities and acquisition of fruits as well as controversies on land
boundaries. Also dispositions about judiciary corruption (§3), fornication
and adultery (§§ 29–30), pledges (§§ 26–27), dowry (§§ 3, 32), successions
(§ 31) and theft in the church (§ 28) can be considered derivating from
Byzantine compilations57, 58; the 10th and 11th chapters introduced in the
Serbian legal system the institute of the protymesis for rural estates and immovables59, following the discipline of Romanos Lakapenos’ novel (a.D. 922).
The texts of these dispositions are in some cases literal translations of the
Byzantine ones, even if some terms have been adapted to the Serbian socioeconomic context such as, for example, at chapter 28: the Byzantine additional
penalty of hair cutting (E. 17. 15)60 has been substituted with hair and beard
burning61. The same penalty was provided by the Code of Dušan at chapters
55, 69, 201, deriving from Serbian customary law.
53
A. Solovjev, Istorija slovenskih prava / Zakonodavstvo Stefana Dušana cara Srba i Grka (supra,
n. 9), p. 398–399.
54
The best edition is: I. Medvedev / E. Piotrovskaja / E. Lipšic, Vizantijskij zemledel’českij
zakon, Leningrad 1984. The other relevant editions are: G.E., Heimbach, Constantini Harmenopuli
Manuale legum sive Hexabiblos cum appendicibus et legibus agrariis, Lipsiae 1851, p. 828–851;
C. Ferrini, Edizione critica del Νόμος γεωργικός, Byzantinische Zeitschrift, 7 (1898), p. 558–
571; W. Ashburner, The Farmer’s Law, Journal of Hellenic Studies, 30 (1910), p. 85–108
(Greek text) / 32 (1912), p. 87–95 (translation and commentary); the last one has been reprinted
in: J. Zepos / P. Zepos, Jus Graecoromanum, II, Aalen 1962 (repr. Athenis 1931), p. 63–79.
55
About the transmission of Byzantine legal texts: L. Burgmann, Mittelalterliche Uebersetzungen
byzantinischer Rechtstexte, in: Antike Rechtsgeschichte, Einheit und Vielfalt, [Österr. Akademie
der Wissenschaften, Phil.-hist. Kl., SB 726], Wien 2005, p. 51–66.
56
R. Hubè, Droit romain et gréco-byzantin chez les peuples slaves (supra, n. 50), p. 24–25.
57
V. Bogisić, Pisani zakoni, Zagreb 1872, p. 56 – 58.
58
In accordance with R. Hubé’s theories, F.F. Florinskij has partially underlined this aspect
but no systematical study has been made in this direction. F.F. Florinskij, Pamjatniki Zakonodatel’noj dejatel’nosti Dušana carja Serbov i Grekov (supra, n. 7), p. 475–490.
59
The right of redemption had to be exercised by the relatives or by the villagers within ten
years, if they didn’t have any notice about the alienation.
60
Edition: L. Burgmann, Ecloga, Das Gesetzbuch Leons III. und Konstantinos’ V., [Forschungen
zur byzantinischen Rechtsgeschichte, 10], Frankfurt am Main 1983.
61
E. 17. 15: Ὁ εἰσερχόμενος ἐν θυσιαστηρίῳ ἐν ἡμέρᾳ ἢ καὶ ἐν νυκτὶ καί τι τῶν ἱερῶν
ἀφελόμενος, τυφλούσθω· ὁ δὲ ἔξω τοῦ θυσιαστηρίου ἐκ τοῦ ναοῦ ἐπαίρων τι δερέσθω ὡς
ἀσεβὴς καὶ κουρευόμενος ἐξοριζέσθω. So- called Law of Justinian, § 28: О крагі закон. Аще
кто оукрадет що от црькве или вь дьни или вь нощи да се ослѣпить. аще ли на дворѣ
что црьковно оукрадет, да се бїе и осмуди и прожене от тогаи мѣста (‘The law about
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
85
The relationships between the parts of the imperial codification can be
further shown by analyzing some aspects of civil law, which, as previously
remarked, were limited in the Code of Dušan only to a few chapters.
The Code of Dušan at chapter 90 regulated pledges by only encouraging
their getting out of pawn62; the Syntagma of Blastares (∆-II) contained three
chapters regulating loss, fruits and extinction due to lender’s rejection. They
were included in the imperial codification at chapter ∆-2 of the Abridged
syntagma, together with the chapters 26–27 of the so-called Law of Justinian,
regulating pledging by an oral formula agreement. The term of redemption
(§ 26), loss and damages (§ 27)63 were also regulated.
General aspects of dowry64, also regulated in the Syntagma of Blastares, were
integrally translated in the Abridged syntagma (П-3), in conformity with
Greek-Roman law, whereas two chapters of the Abridged syntagma, concerning
settlement and return in case of a predeceased partner, completed the regulation
about dowry. The Code of Dušan forbade to include in the dowry peasants
tied to the land (§ 44) but allowed the inclusion in the dowry of lands and
vineyards, requiring the presence of workers tied to the rural estates (§ 174).
As far as the criminal law is concerned it is possible to find compatibility
between the dispositions contained in the codification, especially between
the Code of Dušan and the Abridged syntagma65: crimes as rape, fornication,
desecration of graves, theft and conspiracy were regulated following GreekRoman law and the Code’s dispositions were strictly connected to these rules.
Both in criminal and civil law, the Serbian code can be considered as an
integration of the Byzantine compilations, regulating specific aspects.
Some Serbian customary law institutions together with Byzantine juridical
influence, were preserved in the Code of Dušan, as for example for homicide.
This matter was regulated following both Byzantine and Serbian law, so it
will be interesting to show how elements and institutions derivated from
Slavic customary law, have been introduced or adapted to the new Serbian
juridical system.
theft. If someone steal something from a church either by day or by night let he be blinded. If
he steal something in the courtyard of the church, let him be beaten and his beard and his hair
burned and let him be exiled from this place’). The Slavic text can be considered a very close
translation of the Byzantine text. The verb ‘осмудит’ (the burning of hair and beard) is used
instead of the word κουρευόμενος (it indicated the cutting of hair).
62
‘Pledges, wherever they be, shall be redeemed’. The reference edition for the English translation
is: M. Burr, The code of Stefan Dušan Tsar and Autocrator of the Serbs and Greek (supra, n. 31).
63
B. Marković, Zapam i zaloga u justinijanovom zakonu, Istorijski časopis, 52 (2005),
p. 83–108.
64
The term ‘prikió’ derived from the Greek ἡ πρῖξ.
65
The so-called Law of Justinian contained just a few dispositions about criminal law.
86
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
The Code of Dušan (1349–1354) and some aspects of the criminal law
The critical editions of the Code of Dušan have reconstructed a text composed
of 201 chapters: the first part, promulgated in 1349 is composed of 135
dispositions, the second one of 66 chapters. They regulated mainly ecclesiastical
and criminal law as well as judiciary procedure; as previously remarked, just
a few chapters regulated civil law and only some dispositions were dedicated
to public and military law.
The Code has a very feeble systematic order, limited to dispositions of
ecclesiastical law and even though in some cases the chapters regulating the
same matter are arranged in succession, as for example the chapters about
homicide (§§ 94–96), military law (§§ 129–132), theft, robbery (§§ 145–150)
and crimen falsi (§§ 168–170), it seems not possible to uphold the presence
of a general systematic order of the dispositions, as did A. Solovjev66.
The second part can be considered as a supplement containing dispositions
of the chrysobulla and prostagmata, drawn up by the chancellery between 1349
and 1354. They were granted by the emperor to ecclesiastical institutions,
rural villages, towns and districts, and were included in the Code in order to
ensure a uniform application in all imperial territories.
Chapters 1–38 regulated ecclesiastical law, according to the privileged
relations between church and crown, which characterized the medieval Serbian
monarchy, following the Byzantine idea of the ‘συμφωνία’ (‘symphony’)67.
The Orthodox church was a true ally to Serbian rulers. Although in Byzantium
there had been disputes between the patriarchate and the throne68, the Slavic
secular and religious institutions never knew these contrasts. It is interesting
to notice that both of them derived from the Nemanja family69.
The military expansion of the 14th century was the decisive factor for
raising the Serbian autocephalous archbishop to a patriarchate. This elevation
66
Solovjev theorized the following unconvincing systematic disposition: ecclesiastical law,
rights and duties of noblemen and peasants, criminal law and judiciary procedure, rights and
duties of town-dwellers (including, for example, military law). A. Solovjev, Zakonik cara Stefana
Dušana 1349. i 1354. godine (supra, n. 6), p. 10–14.
67
The principle of ‘symphony’ probably had had a first juridical sanction in the novella 6 of
Justinian. The novel, contained in the Nomocanon 87 titulorum (49. 87) was included in the
Nomocanon of Saint Sava (μέγιστα [...] ἐστί δῶρα θεοῦ [...] ἱερωσύνη τε καί βασιλεία [...] /
Vêlika [...] östa dara b(o)`ió [...] sv(ê)щêni~ĩstvo `ê i c(a)r(ĩ)stvo. M Petrović,
O Zakonopravilu ili Nomokanonu svetoga Sava, Beograd 1990, p. 76–77, 81–83.
68
In Byzantium, after the victory on iconoclasm the relations between the ecclesiastical
institution and the secular one were oriented towards the mutual respect of competence spheres
. A. Pertusi, Il pensiero politico e sociale bizantino dalla fine del VI secolo al secolo XIII, in: Storia
delle idee politiche, economiche e sociali, vol. II, Torino 1983, p. 693–699
69
In the 13th century the strengthening of the Nemanja monarchy ruled by Stefan prvovenčani
(Stefan the first-crowned) helped his brother Ratsko to obtain the consent of the imperial court
of Nicea for the constitution of a Serbian autonomous archbishopric. Ratsko / Sava became
the first Serbian archbishop. D. Obolenski, Ritratti dal mondo bizantino, Milano 1999,
p. 135–192.
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
87
to patriarchal dignity was functional to Dušan’s raising to the imperial throne
and again so as it happened in the past, the vicissitudes of monarchy and
church were strictly interconnected. In exchange of economic and juridical
privileges accorded by the crown, the Orthodox church warranted social
control of the lower and higher classes of the population, especially of the
aristocracy which constantly tried to preserve its independence to the detriment
of the monarchy.
Because of the prominent role of church and religion in Serbian society,
the first chapter of the Code of Dušan is an enunciation of the Orthodox faith70
according to the Byzantine tradition71. The following chapters regulated
Christian wedding (§§ 2–3), excommunication (§§ 4–5) and heresy (§§
6–10), in particular the Catholic one72 that in the 14th century, together
with the Bogomil heresy, threatened Dušan’s empire. Even if there was a
certain tolerance for Catholic believers living in the imperial territory, Catholic
priests’ proselitism on the other hand was heavily repressed and also mixed
marriages between Catholics and Orthodox believers were discouraged through
exile and confiscation of goods.
Chapters 11–19 regulated some aspects of ecclesiastical life. Chapter 11
regulated clerical ordinations and chapter 13 punished with excommunication
the ordination of clergymen through simony. Chapter 12 accorded juridical
immunities to ecclesiastical bodies and forbade secular juridical authority’s
interferences. Chapters 14–19 concerned regular clergymen’s life and chapters
22–38 regulated economic administration of ecclesiastical properties and
juridical immunities accorded to them.
These dispositions supplemented and integrated the dispositions contained
in the Nomocanon of Saint-Sava, which regulated the Serbian ecclesiastical
life following the oriental canon law. The Code of Dušan regulated secondary
aspects of ecclesiastical matter, in full accordance with the first Serbian
archbishop’s nomocanon. It sanctioned the great privileges and juridical
immunities accorded previously, which made Serbian churches and monasteries
the biggest landowners in his empire. As a consequence, clergymen assumed
a position that could be compared to that of the nobility73. The Code of Dušan
70
Chapter 1: ‘First concerning Christianity. In this manner shall Christianity be purged’. It
recalls the concept of ἀνακάθαρσις (repurgatio), contained in the proem of the Prochiron or
in the Basilica (Ἀνακάθαρις τῶν παλαιῶν νόμων). F.F. Florinskij asserted that chapters 1–37
had been directly extracted from Basilica: F.F. Florinskij, Pamjatniki Zakonodatel’noj dejatel’nosti
Dušana carja Serbov i Grekov (supra, n. 7), p. 78–79
71
Both Basilica (B. 1. 1. 1) and the Syntagma of Blastares (A-1) contained an initial enunciation
about Christianity (Περὶ τῆς ὁρθοδόξου πίστεως). The Byzantine emperor was φύλαξ τῆς
πίστεως, and the defence of Orthodoxy was his chief duty.
72
The terms vħrú latinĩskú (‘Catholic faith’), za êrêsĩ latinĩskú (‘for Latin heresy’),
polúvħrĩcĩ (‘half-believer’) were used to indicate the Catholic faith and believers.
73
A. Solovjev, Istorija slovenskih (supra, n. 9), p. 223.
88
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
juridically recognized their social rank due to the prominent role and privileges
accorded to religious institutions74.
Criminal law was also added to the Abridged syntagma; this could also be
considered a relevant attempt to remain close to the Byzantine juridical model.
Unknown crimes and penalties were introduced into the Serbian legal system,
previously based on family feud and on private composition75. The promulgation
of Dušan’s codification also marked a transition to the public penal system
and in this sense the massive introduction of physical penalties is one of the
most relevant elements of the legislator’s attempt76. There are some sporadic
traces of this in the Serbian juridical monuments which date back to the 13th
century and there are not any traces before the convertion to Christianity77.
The Code of Dušan provided juridical matters strictly connected to Christian
religion, as for example crimes against faith, heresies, sexual crimes (such as
adultery and fornication), that took their roots in the postclassical-Justinian
age78. On the other hand institutions of Serbian customary law were preserved
74
S. Ćirković, Pravoslavna crkva u srednjovekovnoj srpskoj državi 1219–1969, in: Spomenica
o 750-godišnjici autokefalnosti], Beograd 1969, p. 31–51.
75
F. Miklošić supposed that pecuniary punishment was introduced in the 9th century, F.
Miklosich, Die Blutrache bei den Slaven, Denkschriften der kaiserlichen Akademie der
Wissenschaften in Wien, 36 (1887), p. 127–210; S. Đorić agreed with this theory, sustaining
that the transition possibly happened when Nicolāus sent his responsa to the Bulgars (Responsa
Nicolae papae ad consulta bulgarorum) prescribing the accordance between law and religion and
because of the cultural homogeneity between southern Slavs also Serbian people could have
adopted it, in S. Djoritch, Verbrechen und Strafen im Gesetzbuche des serbischen Zaren St. Dušan
(1349–1354), Zeitschrift für Vergleichende Rechtswissenschaft, 30 (1913), p. 337–347; on
the contrary M. Vesnić sustained that it is not possible to give evidence that in the 9th century
feud was substituted by private composition: M.R. Wesnitsch, Die Blutrache bei den Südslaven,
Zeitschrift für Vergleichende Rechtswissenschaft, 8 (1889), p. 433–470; 9 (1890), p. 46–77;
also K. Jireček underlined how the Code of Dušan didn’t forbid feud, and that it could not have
been contra legem, see K. Jireček, Istorija srba (supra, n. 2), p. 279; T. Taranovski agreed that
it could have been put out of force, but it was not possible to demonstrate this happened in
the 9th century with the responsa. Indirect traces of feud can’t possibly be found in the chapters
86 and 131. T. Taranovski, Istorija srpskog prava u Nemanjćkoj državi, Beograd 1931,
p. 262–267.
76
Physical mutilations were originally considered a mitigation of the laws of Justinian, which
in numerous cases provided the death sentence. For a recent overview, see: E. Cortese, Le grandi
linee della storia giuridica medievale, Roma 2000, p. 172–173.
77
The first written text mentioning the cutting of tongue is The life of Simeon Nemanja. The
great župan Stefan Nemanja used this mutilation to punish Bogomil chiefs. S. Prvovenčani,
Žitije Simeona Nemanje, Svetosavski zbornik, 2, Beograd 1939, p. 27–30.
78
K.E. Zachariä, Geschichte des griechisch-römischen Rechts, Aalen in Württemberg 1955 (repr.
of Leipzig 1892), p. 337–339; B. Sinogowitz, Studien zum Strafrecht der Ekloge, [Πραγματεῖαι
τῆς Ἀκαδημίας Ἀθηνῶν, 21], Athenès 1956; Sp. Troianos, Ὁ ποινάλιος τοῦ ἐκλογαδίου,
Συμβολὴ εἰς τὴν ἱστορίαν τῆς ἐξελίξεως τοῦ ποινικοῦ δικαίου ἀπὸ τοῦ Corpus iuris civilis
μέχρι τῶν Βασιλικῶν, [Forschungen zur byzantinischen Rechtsgeschichte, 6], Frankfurt-amMain 1980; Σπ. Τροιάνος / S. Šarkić, Ο κώδικας του Στεφανου ∆ουσάν και το βυζαντινό
δίκαιο, in: Βυζάντιο και Σερβία κατά τον Ι∆ αιώνα, p. 248–256.
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
89
and some matters were regulated following the principles both of Serbian
and of Byzantine law as it happened for homicide.
The jurists of the imperial chancellery included in the chapter of the Abridged
syntagma Φ-2 O úb¡istvahĩ volnÿhĩ i nêvolnÿihĩĩ79 the definition of
voluntary homicide (volnoê úb¡istvo) and involuntary homicide (nêvolnoê
úb¡istvo), according to the difference between φόνος ἑκούσιος e φόνος
ἀκούσιος contained in the integral version of the Syntagma80. This distinction
was previously unknown to Slavic people.
Chapter 86 provided a pecuniary penalty for him who provoked a fight,
even if he had been killed81, in connection with the disposition of the Abridged
syntagma. The latter contained an excerpt of the Prochiron, which granted
impunity for the one who killed an assailant82.
Chapter 87 provided a pecuniary penalty of 300 perpers (vražda / вражда)
for involuntary homicide, whereas it punished voluntary homicide with the
‘Byzantine’ physical mutilation of cutting off hands83.
Some cases of aggravated homicide were punished with a death sentence,
as for example homicide of close relatives (§ 95)84 and homicide of a clergyman
(§ 96) without taking into consideration the rank he held in the ecclesiastical
hierarchy85. The introduction of the death penalty and of physical mutilation
can be considered a very relevant innovation, unknown to Serbian and Slavic
populations.
As was previously remarked for homicide, juridical matters and institutions
deriving from Greek-Roman law coexisted in the Code of Dušan with elements
of Serbian customary law, such as vražda86. This was the patrimonial or
pecuniary composition paid by the family of the murderer, so as to give
satisfaction to the offended party (the family of the victim). The reconciliation
79
F.F. Florinskij, Pamjatniki Zakonodatel’noj dejatel’nosti Dušana carja Serbov i Grekov (supra,
n. 7), p. 357.
80
Φ-V Περὶ φόνων ἑκουσίων καὶ ἀκουσίων, PG 145, col. 179–188. Dispositions about
homicide are also contained in Φ-VII and Φ-VIII. About homicide in Byzantine law see: Proch.
39. 8, 35, 39, 79, 85–86 – Eisag. 40. 11, 37, 41, 85, 91–92. In the Basilica dispositions about
homicide can be found at the 39th title of the 60th book, containing dispositions extracted
from the Lex Cornelia de sicariis.
81
Chapter 86: ‘When there is a homicide, he who provoked it is held guilty, even if he be
killed himself’.
82
Proch. 39. 39 (C. 9.16.2), in Abridged syntagma Φ-4: ni`ê na{ĩd{ago, rêk{ê , naóhav{ago
úbxvĩ, im`ê o `ivotħ bħdĩstvova{ê, nêpovinnĩ östĩ (Qui aggressorem occidit, ubi de vita
preclitabatur, insons est), PG 145, col. 188
83
Chapter 87: ‘Where there occurs homicide without intention and violence, the fine shall be
three hundred perpers. But if a man kill intentionally, both his hands shall be cut off’.
84
Chapter 96: ‘Whoso killeth his father, mother, brother or own child, let that murderer be
burnt in the fire’.
85
Chapter 95: ‘[...] But if a man kill a bishop, monk or priest, let him be killed and hanged’.
86
The Serbian customary law’s term vražda simultaneously indicated the crime and the
patrimonial sanction.
90
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
of the parties was fundamental in order to avoid the degeneration of the
quarrelling between two families into protracted conflicts with dangerous
consequences for public order.
The juridical survival of institutions deriving from unwritten law even in
the 14th century, was due to Serbian population’s attachment to customary
law87.
The Code enacted in 1349 contained also dispositions on crimes against
sexual morality such as fornication of a noblewoman with one of her servants
(§ 54) which was punished with cutting off hands and nose88. Chapter 53
regulated sexual violence (stuprum), that can also be considered a crime against
sexual morality: if a nobleman or a commoner had committed sexual violence
against a commoner woman he had to be punished as a fornicator; if a
commoner had committed sexual violence against a noblewoman he had to
be sentenced to death. Fornication and stuprum were punished in the same
way, but if violence had been committed by a commoner against a noblewoman
the punishment had to be aggravated, with an harsher penalty89.
The principle of punishment grading was introduced in the Serbian legal
system for other crimes as well, such as the utterance of ‘a Bogomil word’90
for example that was punished with a pecuniary penalty of 100 perpers for
noblemen, whereas for commoners a sanction of 12 perpers also combined
with an accessory penalty of beating was provided (§ 85)91.
With the enactment of the Abridged syntagma, the punishment grading
was largely introduced into the Serbian legal system, in accordance with
Justinian criminal law based on the difference between humiliores and
honestiores92. It must be underlined that this distinction was unknown to the
Serbian customary law; as a consequence, the Code of Dušan can be considered
in full conformity with the rest of the codification.
A particular aspect, deviating from Byzantine law and deriving from
customary law, is considered the persistence of collective criminal liability:
the family, village and district responsibility, whose members were jointly
liable.
Family liability was provided if the culprit was a member of the household93:
the head of the family94 (that should be the father or the oldest brother) living
87
T. Taranovski, Istorija srpskog prava u Nemanjćkoj državi (supra, n. 75), p. 257ff.
Chapter 54: ‘And if a noblewoman commit fornication with her man let the hands of both
be cut off and their noses slit’.
89
Chapter 53: ‘And if any lord take a noblewoman by force let both his hands be cut off and
his nose be slit. But if a commoner take a noblewoman by force, let him be hanged. And if he
take his own equal by force, let both his hands be cut off and his nose slit’.
90
T. Taranovski, Istorija srpskog prava u Nemanjćkoj državi (supra, n. 75), p. 359.
91
Chapter 85: ‘Whoso utters heretical words, if he be noble let him pay one hundred perpers:
and if he be not noble, let him pay twelve perpers and be flogged with sticks’.
92
Humilior – εὐτελής; honestior – ἔντι̇μος.
93
In the text: kúkó.
94
Chapter 71: ‘gospodarĩ kúkîi’.
88
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91
in the same house95 ad unum panem with the culprit96 was liable for the crimes
which his relative had committed. In some cases he had to be delivered to
the authorities, in order to avoid being held personally liable for the crimes
(§ 71). Also in trials the head of the family either represented the members
of his family or decided who, among his relatives, had to represent the family
in trial97.
As far as it regards noblemen there was provided a particular form of
liability. In case a member of the family had violated the duty to keep faith
to the emperor, the head of the family was liable for high treason, likewise
the one who had violated the oath of allegiance taken at the moment of the
presentation in the imperial court (§ 51)98. The father’s family was not liable
if the culprit had his own family unit99.
There were two kinds of collective liability100. The family liability could be
considered as the ordinary one, whereas district or village liability was normally
provided if the author of a crime was not discovered101. Both of them were
applied exclusively to the cases provided by the Code, because the legislator
had introduced the principle of personal liability102.
To the Serbian customary law can also be connected the presence of trials
by ordeal, like the iudicium ferri candentis and the cauldron (§§ 84, 106,
150)103 as inquisitorial evidence or as a way to resolve controversies, and the
presence of duels in the army104 for disputes between soldiers105. Also cattlefines, which were largely provided in the 13th century and in the first half of
95
Chapter 71: ‘ú êdnoi kúkîi’.
Chapter 70: ‘Σtdħl«nĩ hlħĩΣm i imaniöm’. Liability was provided for, if the culprit was
not ‘divided by bread and property’ from his household.
97
A. Solovjev, Zakonik cara Stefana Dušana 1349. i 1354. godine (supra, n. 6), p. 234–235.
98
Noblemen presented the members of their household pronouncing the ritual formula ‘vħrúi
ga koliko mênê’ (‘Trust him as myself’).
99
Chapter 52: ‘kto sútĩ Σtdħlĩni Σt onogozÿ ú sboih kúkóh [...] tĩzi da nê plati niщa’
(‘if they dwell separately in their own houses [...] shall not pay anything’).
100
T. Taranovski, Istorija srpskog prava u Nemanjćkoj državi (supra, n. 75), p. 282–286.
101
§§ 20, 58, 77, 92, 99–100, 111, 145, 159, 169, 191.
102
T. Taranovski, Istorija srpskog prava u Nemanjćkoj državi (supra, n. 75), p. 285–286.
103
Chapter 84: ‘After ordeal there shall be no further trial. Whoso proves his innocence shall
give no further proofs to the courts, nor shall pay costs. There shall be neither surety in court,
nor false accusation, nor imprisonement for debts, but let every man be tried according to law’.
Chapter 106: ‘ [...] but if he be a commoner, let him be taken to the cauldron’. Chapter 150:
‘If anyone sue a brigand or thief in the courts and there be no proof, then shall he undergo
ordeal by iron, as I have decreed. Let them take him to the doors of the church from the fire
and place it upon the Holy Table’.
104
Chapter 131: ‘In the army there shall be no brawling. If two quarrel let them fight a duel,
and no other soldier shall help them. And if anyone go to succour or help, let him be flogged’.
105
It was explicitly forbidden to help one of the duellists, because of the risk of degeneration
of the quarrel into a fight between soldiers and the pain of death was provided for this.
96
92
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the 14th century, derived from unwritten law but their infliction was strongly
limited106 to a few chapters in the Code of Dušan107.
Dušan’s codification enactment constituted the introduction in the newborn
Greek-Serbian empire of a derived Byzantine legal system. The empire was
divided in two parts de iure: the northern part, called ‘Serbian land’ ruled by
Dušan’s son, king Uroš, and the southern part called ‘Greek land’, ruled by
the emperor108. De facto both parts were under the authority of the emperor,
who bestowed on his son the title of king, to legitimate the succession109.
In the southern provinces the transition to the new legal system might have
been effortless, because the Greek origin of the population could have facilitated
it, even though it is uncertain in which way the introduction of Serbian
customary law elements and juridical institutions was assimilated.
More relevant oppositions could have taken place in the northern part of
the empire, populated by Slavic ethnic groups and in this sense there is not
any certainty for the real application of the codification. The public penal
system, personal liability, physical punishments and mutilations, as well as
death penalty, should have been very unfamiliar to the Serbian population
and the dispositions even more deviating from customary law may have been
constantly not applied. The non-application of the dispositions of Dušan’s
codification and the persistency of customary juridical institutions should
not surprise, considering that just in a few years time the legal system was
completely overthrown.
A weak attempt?
In 1355, just six years after the promulgation of the imperial codification,
Stefan Dušan died and in 1371 with the death of his son and successor, also
the Greek-Serbian empire disappeared. After the battle of Kosovo Polje
(1389), Serbia was overwhelmed by Ottoman troops and reduced to a satellitedespotate. During the century to come Serbia became a province of the
Ottoman empire, disappearing as autonomous political entity.
The Code of Dušan, the so-called Law of Justinian and the Abridged Syntagma
have been law in force only for 25 years, until the empire collided. This lapse
of time seems to be too short to permit to the Slavic population to metabolize
the juridical and the consequent socio-economical changes that it must have
involved.
106
Starting from the 14th century fines were more usually calculated in coins (perpers) but
cattle-fines were not completely eliminated. A. Solovjev, Istorija slovenskih prava (supra, n. 9),
p. 462.
107
The payment of 6 horses was provided for non-appearance of a nobleman summoned to
court (§ 56), a sanction of 6 cattles for wilful graze violation (§ 76) and a sanction of 7 horses
for theft and consequential death of a horse (§ 201).
108
T. Taranovski, Istorija srpskog prava u Nemanjćkoj državi (supra, n. 75), p. 250–251.
109
See: A. Solovjev, Istorija slovenskih prava (supra, n. 9), p. 383–384.
P. Angelini / Tijdschrift voor Rechtsgeschiedenis 80 (2012) 77-93
93
The promulgation of the imperial codification was meant to be the juridical
basis of Dušan’s political project. The emperor passed away during the most
decisive phase of his military advance, preventing the capture of the second
Rome and his accession to the throne of Byzantium as the legitimate successor
of Constantine and Justinian.