“Law of Magdeburg”
4. Reading the Lawcode from the Perspective of Law and Literature
4.1 The Law Code as Law
The previous interpreters of the Lawbook of Lemberg have always interpreted it as“law in action”, as a code actually used in the courts of the Armenian com-munity (or at least by the city reeve presiding these courts)⁴⁰. One even runs across the assumption that the book was composed by an active Armenian judge⁴¹ or mirrors actual court practice⁴². A closer look at the source and its context(s) will reveal that this interpretation is faulty. The Lawbook of Lemberg is wholly unsuited to function as a basis for (sound) judgments; furthermore, the hitherto prevalent view has the serious drawback of an anachronistic rear pro-jection of the modern notion of a judge bound to the letter of the law (which does not even reflect the everyday work experience of our current judiciary⁴³).
A closer look at the Lawbook and its comparison with theDatastanagirkwill show that the document is practically totally alien to the situation in early mod-ern Lemberg⁴⁴. Let’s turn to the index and a few telling examples.
The Lawcode is essentially based on chapters 20–216 of the Datastanagirk, omitting the first 19 chapters en blocas well as numerous others⁴⁵. Its further sources – the Syro-Roman Lawbook, documents of German and Polish law – are left aside at this point⁴⁶.
See Bischoff,“Recht der Armenier in Polen,”::“möglichst ausgedehnten Gebrauch”;
Kohler,“Das Recht der Armenier,”; Oleś, Armenian Law,andpassim.–Distinguishing Oleś, “Casimir the Great,”:“Perhaps the law was promulgated but never applied in its whole scope.”
See–highly speculative–Oleś, Armenian Law,.
This assumption is shared by Karst, Grundriß,, and Oleś, Armenian Law,–.
See Fabian Wittreck, Die Verwaltung der Dritten Gewalt(Tübingen):–.
But see Oleś,“Casimir the Great,”–:“Undoubtedly the old native practices of the Arme-nians were significantly affected by the local necessities and conditions in the city of Lwów.”;
Similar Balzer,“Das Lemberger Armenische Rechtsbuch,”.
Comparable schedules: Karst, Grundriß,–; Oleś, Armenian Law,–.
See in Detail Oleś,Armenian Law,–(with further references).
Lawcode Datastanagirk Short summary⁴⁷
Concerning the statutes for princes guilty towards kings, and of others towards them
Statutes for peasants
Concerning the statutes for murder by children
Concerning the statutes for children if at play they maim each other or break [bones] or deprive [each other] of faculties
Concerning the statutes if children harm each other in water
Concerning the statutes for children, if for a wager they instigate each other to run down from a high place seqq.
Concerning the statutes for youths who harm each other for reasons of frivolous wagers
Concerning the statutes for drunkards and the harm caused by them
Concerning the statutes for treasure-trove
Concerning the statutes for those who fight an pluck out beards
Concerning the statutes for stores of seeds
Concerning the statutes for peasants hurt by their lords more than is customarily allowed
Concerning the statutes for those who dishonour priests
Concerning the statutes for those who dishonour king or prince
Concerning the statutes for designating servants into clergy
Concerning the statutes for taking servants according to the Law
Concerning the statutes for maid-servants
Concerning the statutes for foreign servants, and likeweise maid-servants
Concerning the statutes for those who strike their father or mother
Concerning the statutes that fathers and sons are not to die for each other
Concerning the statutes for kidnappers
Concerning the statutes for those who slander their father or mother
Concerning the statutes for those who quarrel
Concerning the statutes for servants and maid-servants who are kil-led by their masters
Concerning the statutes for striking a pregnant woman when men are fighting
Concerning the statutes if a bull hurts a man or a woman
Concerning the statutes for servants and maid-servants who are struck by their masters
Concerning the statutes if a bull hurts a bull and kills it
Concerning the statutes for cisterns an wells, and if any animal falls in
Concerning the statutes if a man or a woman or a child falls into a cistern or well
The summaries generally follow the translation of Thomson, The Lawcode,–.
Continued
Lawcode Datastanagirk Short summary⁴⁷
Concerning the statutes if a bull hurts a clean or unclean animal and kills it
Concerning the statutes, if beasts of burden kill each other or cause harm by strangling or trampling
Concerning the statutes if one of these animals mentioned above either by biting or by trampling kills a man or woman, son or daughter, servant or maid-servant
Concerning the statutes for thieves caught in the act
Concerning the statutes for [animals] which eat up fields
Concerning the statutes for conflagrations
Concerning the statutes for deposits
Concerning the statutes for safe-keeping
Concerning the statutes for those who borrow
Concerning the statutes for loans
Concerning the statutes for pledges
Concerning the statutes for fire-setters
Concerning the statutes for those who cut down plants
Concerning the statutes for those who kill animals
Concerning the statutes for those who will sell and buy land
Concerning the statutes for those who will sell and buy a house
Concerning the statutes for water-mills
Concerning the statutes for the sale of animals
Concerning the statutes for the sale of oxen
Concerning the statutes for the sale of a cow
Concerning the statutes for the sale of bees
Concerning the statutes for the sale of vessels
Concerning the statutes for the sellers and buyers of fruit of vines and of other stocks
Concerning the statutes for the leasing of water-mills and of other such things
Concerning the statutes for those who despise priests and judges
Concerning the statutes for everyone’s boundaries
Concerning the statutes for the witnesses and false witnesses
Concerning the statutes if someone is found killed in the confines of territories
Concerning the statutes for perverse sons
Concerning the statutes for those who have died after being con-demned to death
Concerning the statutes for those worthy of a beating
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Concerning the statutes for lost [animals]
Concerning the statutes for women’s clothing
Continued
Lawcode Datastanagirk Short summary⁴⁷
Concerning the statutes for newly-built houses
Concerning the statutes for those who enter harvests
Concerning the statutes for those who enter their neighbour’s vine-yard
Concerning the statutes for those who take new wives not going to war
Concerning the statutes for those who pledge millstones
Concerning the statutes for debts and their pledges
Concerning the statutes for hired servants in general
Concerning the statutes for the pledge of a widow
Concerning the statutes for those who fight and the wife who rescues [her husband]
Concerning the statutes for corpse-stealers
Concerning the statutes for involuntary murders
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Concerning the statutes for those who kill in war
Concerning the statutes for artisans who embezzle
Concerning the statutes for crippled children
Concerning the statutes for deceit in commerce
Concerning the statutes for false witnesses
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Concerning the statutes for monasteries
Concerning the statutes for ships wrecked at sea
Concerning the statutes for those rebuilding villages
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Concerning the statutes for thieves hung on gallows
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Concerning the statutes for a man sent on a journey or other business who suffers death
Concerning the statutes if anyone sends out on business someone who is not his own [servant]
Concerning the statutes for hired servants
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Concerning the statutes if with evil intent or in jest someone scares a horse, and someone falls from it and dies or is hurt, or if from some other animal; or if it is scared without cause on merely seeing someone
Concerning the statutes for involuntary and voluntary murders
Concerning the statutes for those who cause harm through water
Concerning the statutes for doctors
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Continued
Lawcode Datastanagirk Short summary⁴⁷
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Concerning the statutes for shepherds and herdsmen
Concerning the statutes for gifts to a church–land, or water, or a vineyard, or some other such thing
Concerning the statutes for markets
Concerning the statutes for all artisans who cheat
Concerning the statutes for hired workers who damage their tools
Concerning the statutes for those who sell from booty
To start with, the text is basically an amended translation of a shortened version of the Datastanagirk. Now one may pose the question if either the (positive) choice of chapters translated or the (negative) choice of those to be omitted bears the imprint of some attempt ofaggiornamentoor adaptation to late medi-eval and early modern conditions in eastern Poland. As we have no access to the Armenian version acting as a basis for the translation, we have to take into ac-count the possibility of no rational choice at all, meaning that the downsizing of the chapters had already taken place before.
What is left out (or had already been left out when the unknown translator laid hand on the text)? Marked lacunae are the chapters 1–19 (comprising stat-utes on judges, princes, the clergy, and husband and wife), chapters 38–48 (stat-utes on judges and ecclesiastical matters), chapters 51–53 (penal law), 86–88 (statutes on deposits and ecclesiastical matters), chapters 134–173 (once more ecclesiastical law), chapters 175, 176, 180–181, 183 (family and inheritance law), 184 (funeral rites), 187–208 (family law, ecclesiastical law), 242–250 (agri-cultural law, boundaries et al.).
Having in mind the above-mentioned controversies pitting the Armenian community against the majority of the city society, neither the chapters chosen nor the chapters omitted form a discernible rational pattern: There is a clear ten-dency to sort out ecclesiastical matters, but even this is not done thoroughly (see chapters 15, 85, 103). Furthermore, family and inheritance law are nearly totally combed out (which comes as a surprise considering that both fields of law are extremely important for the demarcation of a minority group and its continued existence). Against that, a high number of penal provisions is“upheld”(they be-long to those chapters marked with a not to be applied-addendum by the Polish king–another indication of the aloofness of the Lawbook). Generally, the picture is a rural one–the Lawbook comprises chapters on merchants and loans, crafts-men and buildings, but most provisions deal with agriculture or with circum-stances clearly located in villages. Single chapters obviously do not make
sense in the Lemberg environment: This applies to chapter 86 (shipwreck), as well as to chapter 79 (penance of those who kill in war). The list could be con-tinued.
What is most surprising (and telling) is the purging of most of the chapters on judges. As in the tradition of the older Eastern Christiannomokanones, espe-cially the omitting of the chapter on judges (38 of the Datastanagirk) is highly significant. A diaspora community trying to defend its own legal turf against the encroachment of the majority is not well advised to cripple itself by delibe-rately erasing the rules governing its autochthonous judges.