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Research Paper:
“The Nomocanon of St. Sava
and Legal Transplants” (First Prize)
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Paper
Note:
Downloadable paper is written in Serbian.
Abstract:
The fundamental objective of this paper is to
show that the notion of legal transplants, in conjunction with diffusion
of law as a genus proximum phenomenon,
represent a universal tendency in the development of law. History shows
us that law has always been borrowed from one social space to another and
that laws of discrete social spaces mutually diffuse, resulting in new
and usually more sophisticated systems of law. This was the case with
Serbian medieval law of the 13th century. The socioeconomic and political
conditions in Serbia engendered a need for a new collection of church and
civil laws. This resulted in the promulgation of the Nomocanon of Saint
Sava, a compilation of civil and church regulations, which is an immense
liaison in diffusion of Byzantine-Roman law among the Slavic people, who
later became Orthodox Christians. Pertaining to the nature of the
Nomocanon, the blend of church and civil regulations in one collection of
laws was inescapable due to the authority of the Orthodox Church. The
Nomocanon of Saint Sava is almost entirely comprised of legal transplants
with the exception of some modifications, which were made to clarify some
legal norms and to incorporate them into Serbian law in a manner, which
was in conformity with the socioeconomic setting in Serbia of that time.
Such modifications are mainly found in the civil regulations, whilst the
church regulations remained largely unchanged. The Nomocanon of Saint
Sava is a rare example of legal transplants being incorporated to another
system of law without undergoing transformation. Legal patterning is not
only a legal issue. Diffusion of law is tightly associated with studies
of acculturation, the process of cross-cultural imitation. This paper
explains us why legal changes should be seen from a sociological
perspective and not only examined by comparative law as a method or an
independent scientific discipline. On the other hand, the civil rules in
this set of laws also illustrate how law can travel through time,
originating in ancient Rome, modified in the Byzantine Empire, further
being transformed by the Greeks and also accepted by the Orthodox
Christians. Furthermore, the local customs and customary law also played
a major role in the process of diffusion of law. Customary law
significantly conditioned the transformations in civil regulations. On
the contrary, the church regulations which were provided with immense
authority seemed to be unchangeable. In the centuries which followed the
promulgation of Saint Sava’s Nomocanon,
Byzantine law acquired a new perspective for diffusion of law through
further legal borrowing from Bulgaria to Russia. Additionally, the
further convergence of Byzantine law in the Nomocanon with Serbian customary
law left a major influence on the Code of Serbian Tsar Stephan Dushan in the 14th century. It is disputed that Tsar Dushan’s codification also led to further legal
borrowing or at least left some influence probably on the codifications
of Bohemian and Polish kings.
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Prof. Sima Avramovic and Marko Mrkonjić,
Alan Watson Prize
Winner
Marko Mrkonjić with the AWF Staff
Prof. Avramović at UB School
of Law Annual Conference – Alan Watson Foundation Prizes
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