Elena Yoncheva (Evstatieva) 11/30/2007
This essay presents a short overview of the legal development of the state, explores possible prerequisites for RJ development, on the grounds of cultural peculiarities and traditions preserved in contemporary Bulgarian society. It is important to note that this is based on hypotheses and assumptions due to the lack of detailed historical records. The peculiarities in the historical development throughout the 1300-year history of the country entail rather scarce inferences for a definite conclusion to be drawn.
This essay has the objective of outlining the possibilities for future research in this field, based on the concept that R Practices will be developing in the best and most sustainable way if the typically cultural peculiarities and traditions underlie same.
This essay is a brief overview of the development of the official punitive justice system and common law throughout the centuries. It explores possibilities for existence of restorative rites and practices in the past.
It is divided into three parts:
In the first is presented a short historical synopsis of the Bulgarian state development as well as the main hypotheses and assumptions of its author.
In the second part is reviewed the development of Bulgarian Enlightenment society and its self-government in the conditions of Ottoman dominance.
The third part comprises conclusions and inferences.
І. Short historical synopsis of the Bulgarian state development and main hypotheses and assumptions.
There are several key stages in the history of Bulgaria, the existence of such periods being related to periods of freedom and foreign dominance. They are considered in order to present the reader with a main vision of the peculiarities of Bulgarian history and culture, of the values evolving throughout said periods and the legal system being established.
First Bulgarian Kingdom (681 – 1018).
Bulgaria is founded in the year 681 as a union between Proto-Bulgarians and Slavs. It is believed that the other indigenous population, the Thracians, has also joined the newly created state, since no records describe any wars between them and the newly settled in the northern part of the Byzantine Empire Proto-Bulgarians. The two united ethnic groups have different styles of life and creeds. Proto-Bulgarians have brought along the experience of a state that has existed within the territory of present-day Russia, also called Great Bulgaria by Byzantine chroniclers. More than once have the Proto-Bulgarians been allies with Byzantium but now that Great Bulgaria has disintegrated, a part of them settled on its territory. Proto-Bulgarians have a mono-theistic creed system, horse-riding peoples who have had a two-century old state before their settlement in the lands to the north of the Danube river, or present-day Romania. They start their raids and gradually penetrate into the territories to the south of the Danube where they encounter the Slavic tribes living there. Slavs are described by historical sources as agricultural peoples with a poly-theistic creed system, as good warriors and subjects of Byzantium. The legend has it that very quicklly however, seven Savic tribes and the Proto-Blugarians lead by Khan Asparouh have agreed on a union forming the foundation of the new Bulgarian state. 681 is regarded as a birth date of the state due to the fact that in this year Byzantium has lost a battle with this union between Proto-Bulgarians and Slavs, having been forced to sign a peace treaty as thereby the Eastern Roman Empire has officially recognizes the new state’s foundation. Under this peace treaty the empire starts paying tax to Chan Asparouh. Thus, the young state finds itself between the Eastern and the remnants of the Western Roman Empire and throughout its existence it struggles and affirms itself in battles with Byzantium and the states established later on in Central and Western Europe.
In its first years, the state has applied the common law of the two tribes. As early as in the VI century in Strategicon by Pseudomauricius is recorded that blood revenge is the main measure applied by the Slavic tribes as a method for retribution and justice. The situation with Proto-Bulgarians is similar. Any affected, hurt or offended and slandered one has a right of defense, his kin being entitled to blood revenge. A possibility for ransom has also existed for the offender, but afterwards he has obligatorily been banished. „If a man kills man, then his brother avenges the murder of his brother, for the father – the son or the son of his brother, or the nephew on his sister’s side; if there is nobody to avenge the one murdered, 40 bracelets shall be given to him!„. There are no records evidencing termination of such common law after the foundation of Bulgarian state. Rather, it is still effective also after the Conversion of Bulgarians to Christianity.
The first recording of official legislation from this period is the law of Khan Krum (803-814), five main articles of which have been preserved to date. Data related to it may be found in the late source, Svidas Lexicon, from ХI century. It is a dictionary-encyclopedia. Under the heading of Bulgarians are listed data for Khan Tervel and his riches, after which are presented the reasons which, in the author’s opinion have forced Chan Krum to create his laws. These data is of a legendary nature. The Svidas Lexicon comprises data for 5 provisions not encompassing the whole legislation.
1 – For slanderers the sanction has been death.
2 – If someone helps or hides a thief, he is to be punished by seizure of his property.
3 – The punishment for theft has been shin-breaking.
4 – An administrative provision to uproot all vines. It is possible that the latter has been a temporary or a partial measure.
5 – The beggars should be given enough so that they could stop begging.
In Svidas Lexikon there is a piece of information disclosing that Krum has summoned all Bulgarians. Analyzing such information, it has been ascertained that, in search of a broader public support, Khan Kroum convenes a people’s council in which participate the Slav kniazes and Proto-Bulgarian bagains. By announcing his laws, Krum makes them accessible to population. This is the first attempt at introducing a legal order in the state which influences in a positive way the processes of formation of Bulgarian nationality and state system.
Another key factor when it comes to Bulgarian state system and its legislation is the conversion to Christianity of Bulgarians taking place in the year 865. The ruler who has accepted Christianity as his own and as an official state religion is Kniaz Boris І. In 862 – 863 he executes a peace treaty with Ludwig German and negotiates with him for conversion of Bulgarians to Christianity. Nowadays he is honored by the Bulgarian Orthodox Church as a Saint.
This conversion is not bloodless. The Kniaz kills 52 aristocratic kins. The slaughter of entire kins, including women and children is an evidence, according to historians, that the common law imposing an obligation for avenging a murder has still been effective to that date. In this way they explain the suppression of the riot, through beheading Proto-Bulgarian aristocracy, that has been the carrier of the state system up to that time. An instigator of the riot is the older son of Kniaz Boris, Vladimir-Rasate. The Kniaz punishes his son by blinding and exile. He is also deprived of his right as first-born successor to the throne. Accepting Christianity, Boris sends a long list of questions to Pope Nicholas I, a total of 116 questions. Unfortunately, to this day are preserved solely the answers sent by the Pope to Boris, 106 answers, by which we can judge what has been the nature of the questions. A non-legal Latin source provides us with data in this respect. The source presents an elaborate picture of the common law of Proto-Bulgarian origin, as well as data concerning the social and economic situation of the population. A great part of the questions refer to specifics of the new religion. Boris is mainly interested in the Christian secular law, he asks for guidance how to regulate public relations via court of justice. The contents of the answers clarify penal law. The main offences under the latter have been:
a) crimes against the state: riot against the ruler, flight of a person across the border, as the sanction is to be imposed on the border’s guards, refusal to participate in a battle, not having maintained one’s weapons on the eve of a battle. The punishment for all these acts is death.
b) crimes against persons: willful murder or killing by negligence, abduction of a free person and punishment for false accusation.
In this respect, Boris asks, “Is the state allowed to judge for committed crimes?” This omnisciently shows who has had the power to administer retribution. The Pope insists on banning all pagan rites and traditions and proclaiming same as heresy, and yet urges for Christian mercy, rendering account that the population is to be affiliated with the new belief. The specific local customs and Christian ideology should be combined in order to achieve efficient regulation of relations. This is the initial stage after which starts the work on drawing up and translation of laws as well as their enforcement. This is a new stage of development of Bulgarian state.
At the end of ІХ century is drawn up the Law for judging people (LJP), as there is a controversy over its authorship. Its contents reveal the process of development of Bulgarian law. Under said law are imposed two types of punishments – secular and Epythemean.
In LJP are listed a number of offences against Christian ethics, as the sanctions are alternative allowing for the possibility for Christianity to be adopted by the population.
There is a connection between the Krum legislation, the answers of Pope Nicholas I and LJP. In Article 2 of LJP is stated that in each dispute or controversy the judge may not adjudge if there are nor many witnesses present. In Article 3 of the Law are determined requirements for witnesses to be honest, God-abiding and not to have any feud with the arguing parties.
LJP may be determined as a true secular law and penitential court that Boris I wants from Pope Nicholas I. The Epythemean punishments are envisaged as alternatives to physical ones in view of the adoption of Christianity by the population, as punishments are determined in accordance with local traditions of the population. From Krum’s legislation it is known that the proceedings have been of an inquisition – investigation nature, and the state has prosecuted and punished only a definite, restricted group of crimes concerning the ruler or the state.
In Article 16 of LJP is determined a punishment for a person pursing a criminal who has found refuge in a church. The punishment is set to 140 wounds. This measure has the purpose of limiting arbitrariness and self-rule in society by attracting population to the new temples – the churches. Under Article 17 a punishment is envisaged for self-rule. Both articles have the objective of affirming the significance of state law administering institutions which would promote the supervision of the new public order within a feudal society.
The court proceedings is of competitive nature.
The process of developing Bulgarian nationality and state system is completed around the middle of the X century.
Of course, more laws to be applied in the Bulgarian state appear during the Late Middle Ages. For instance, the “Alphabetical Syntagma” determining property issues such as sale and purchase, profiteering, succession to property, lending articles. Marriage is also defined as a union. Two types of murder are distinguished – willful and involuntary. Children below the age of seven are not penally responsible. The Alphabetic Syntagma has reached our times via 14-century source. But according to other indirect sources it becomes clear that it has been known to the population and applied even earlier.
Why is the development of official justice being reviewed in such detail? Naturally, all those possibilities that could be contained in the regular and official law within a historical context in which could have existed any customs and practices in the meaning of RJ are being explored.
In all the aforementioned could be discerned a few strange facts as well as the ensuing questions:
- A state created mainly by two ethnic groups and the remains of a third, each having a different culture, beliefs and level of state ruling This state exists in such a form for almost two centuries until it is converted to Christianity as a common religion. For the period of such existence there are no historical data evidencing any struggle between the two ethnic groups. The state is constantly extended and its territories increase. The arising question is in what way, honoring different gods, having different procedures, these two ethnic groups have succeeded to cohabitate for such a long time. There has obviously existed a respect and honor to differences irrespective of the rule dependency. A rule dependency from the viewpoint of the fact that the Khans governing the Bulgarian state have originated form Proto-Bulgarian kins. Nevertheless, the Slav kniazes have had the freedom and responsibility concerning their own tribes. Neither of the two ethnic groups has ever desecrated the gods of the other. All have lived in a state union. If something has happened no one has interfered and even the Khan has not had the power to save a relation of his from retribution and revenge as per the common law of both ethnic groups
That is, here we discover a respect for differences, equality from a legal point of view. A direct contact between offender and victim and the respective needs, typical for the age, of the stakeholders. The community has intervened solely if there has been nobody to avenge a victim, by requiring ransom from the offender and banishing the latter. Thus, the network of relationships is in a certain sense preserved – the status quo of power and responsibility of the parties is being maintained.
- The adoption of Christianity brought about a change of legislation whereby the state was constituted as a party to legal proceedings. Nevertheless, the bulk of private relations remain outside the domain of the state, i.e. largely within the remit of common law. Regardless of the fact that many of the issues raised by Boris I demonstrate his willingness to restrict blood feuds as a way of resolving personal conflicts, this custom continued in existence well into the late Middle Ages, which helped differentiate crimes even more prominently as much as it differentiated the victims of crimes, i.e. we observe differentiation both in terms of responsibility and age. The state began to play a more active role as party to proceedings, i.e. its role as mediator of the relations between the victim and those who broke the law. Another feature of the Middle Ages period in Bulgaria was the introduction of the epythemean punishments as an alternative. A priest sat on the bench of jurors during penal proceedings, epitomizing the duality of proceedings and the punishment. Striving to enforce the rule of Christianity over paganism, the first courts often showed lenience, following the recommendation of Nicholas I and even tolerance towards sins religious faith deemed deadly due to the cultural differences and beliefs of the population. A comparison between Byzantine legislation, which heavily influenced the type of legislation favoured by Christian rulers, draws attention to the fact that in the Byzantine Eclogium, one of the factors, which influenced the type of punishment levied depended on origin as well. A feature which is absent in the Law on Judging People, which does not provide for differentiation on the grounds of origin.
Second Bulgarian Kingdom (1187 – 1407) – here there is no need to place great emphasis on the development of the country during this period. The only aspect of importance is the division of the Bulgarian state into three smaller kingdoms, which lead to the country’s finally loosing its independence – first to the Byzantine Empire and, later, to the Ottoman Empire. Before the restoration of the independence of the Second Bulgarian Kingdom Bulgaria was ruled by the Byzantine empire for nearly two centuries. This accelerated the process of the state becoming increasingly involved in the judicial process and the latter taking on all characteristics of Western penal justice. Thus after nearly two centuries of Byzantium rule over the Bulgarian lands, three brothers of aristocratic descent organise a revolt, which lead to the restoration of Bulgaria’s independence. Bulgaria, however, had by that time taken on all major aspects of a medieval feudal states. Culture, religion and architecture flourished during this period. Feudal servitude progressed into maturity as well. Bulgaria expanded its territory and had outlets on three seas by growing into a serious threat to Byzantium.
The Second Bulgarian Kingdom fell under the rule of the Ottoman Empire and remained a province of that for 500 years. The country played the role of a buffer, which stopped the invasion of the Ottoman armies into Europe. Having fallen prey to the invading armies of a foreign culture and a different religion, espousing other values and enforcing completely different sets of laws, the country found itself in a peculiar situation. Again historic details are of no immediate relevance. It suffices to note that during the period of Ottoman domination there were five major attempts to expel the invaders and regain independence. Initially, western countries attempted to come to the rescue by engaging in several military campaigns against the Ottomans, which remained unsuccessful. Later several insurgencies took place internally but these lead to heavy bloodshed and the brutal death of many Bulgarians. After a domination of a century and a half, the Ottomans engaged in the forceful Islamisation of conquered territories. In the next paragraphs, however, we are going to turn our attention to the Bulgarian Revival of the 18019th century.
ІІ. Development of Bulgarian society during the Revival period, local self-governance and the conditions under Ottoman rule. This period of Bulgarian history will be considered in greater details because 9 centuries after the First Bulgarian Kingdom and laying the foundations of state laws, it is the specific features of this period that underline the spirit of the modern Bulgarian state. The Revival period in Bulgaria developed in a situation of foreign dominance – power was entirely in the hands of the Ottoman Empire, with the attending form of statehood, law and order. Bulgarians paid taxes, upheld their faith in secrecy, were forced to apply double standards, especially in the domain of self-governance.
The operating hypothesis here is that in the environment of repression and a foreign and forcefully imposed penal system, Bulgarians were in a situation where they had to deal with legal issues and disputes within the confines of individual communities in order to minimise the risk of external repression. It is our belief, that if any roots similar or comparable to modernity exist, these ought to be sought during this period of development of the country. The Revival period, in itself, created valuable objects of art, facilitated the financial prosperity of some layers of the population and strengthened national self-awareness and spirit. The drive towards freedom and a new type of resistance to the oppressor emerged. Affluent Bulgarians began sending their children to be educated overseas – in Western Europe or Russia. In Constantinople an affluent Bulgarian community took root who attempted to lobby for the Empire to change its policies vis-à-vis the occupied Bulgarian territories. Thus a social class emerged, which lead the fight for an independent Bulgarian church, introduction of Bulgarian into religious services; a whole network of schools appeared throughout the country, which were financially supported by these forward-thinking, affluent representatives of the Bulgarian community. Here, we are going to quote a major document dating back to this period by means of illustration of these processes.
As mentioned already, the working hypothesis is that the Bulgarian community strived to handle most legal issues internally, within the community, a reflection of the attempt to remain as independent of the oppressor as possible. Repressions were severe and local population often preferred to cover up legal disputes and tackle them within the community itself. As an example, we may quote the so-called ‘blood tax’ – levied on the first-born sons who were forcefully taken away from their parents to be trained and become the core of an elitist military formation known as enichar, which were later sent to fight against their own people. Numerous legends have been told about this period and this practice. Similarly, folklore of this period abounds with songs, myths and parents forced to give away their children to the Ottoman Empire. This is but a mere illustration of the forceful conversion to Islam and the attitudes of the local population to the oppressor.
A document composed by Cyril Dinkov tells the story of the hamlet of Harmanli and the self-governance rules it adopted during the Revival period. The hamlet initially broke away, expanded and became self-contained during the XVI century on the basis of what used to form the nucleus of the parish. The emergence of such communities was undoubtedly grounded in the traditions of the old Bulgarian rural municipality (sharing a common land). Artisans, organised into professional communities, known as rufetti, were officially recognised by Special Decree of the Sultan of 1773.
After the enichar corps became disbanded in 1826, less than a decade later in 1834 the system of governance known as spachi, was also abolished. The spachi were stripped of their administrative functions and the central government replaced them town and village mayors (muhtar), by delegating certain administrative, fiscal and other functions to the newly appointed officials. Although heavily controlled by the Turkish power, the municipalities grew in strength and drew on their democratic traditions where in certain cases Bulgarians were given the right to choose the leaders of their communities themselves.
The reform of 1691 introduced the taxation of non-Muslim population by a general tax levied by the local military lords, who were given the right and authority to collect this tax at villages themselves. The principle obligation of the municipality during the XX century was the distribution of the tax to be collected between the members of the Bulgarian population.
However, Bulgarians had matters of their own to attend to. First and foremost came the church and the school institutions (at Harmanli from the second quarter of the XIX century onwards).The municipal administration settled disputes between members of the local council, decided on certain moral and ethical norms. An interesting reading are the so-called “Guidance for Mayors, Land Owners and Justices of Peace“, in which we find the following quote: “To handle and to arrange village affairs with purity in your heart and not hypocrisy and to behave in a manner as if you were serving God and not people. Have concern for all people of the village. Because it is true to say than many an evil and trouble has descended on villages where we are oppressed and trampled on. I appeal to you to act without spite and humbly because Judgement Day will come for all mayors and lords“.
 Later in the text community elders are advised not to trample on any person, not to engage into rumour mongering, take bribes, think or do evil and judge justly … Justice is a very important affair because it can be easily thwarted under an oppressive regime.
The quotations from these ‘guidance’ written to assist municipal administration in carrying out their tasks demonstrate that Bulgarian rulers were, indeed, required to review all disputes with great attention in order to arrive at a resolution or settlement due to the risk of activating the penal system of the oppressor. Thus they defended the interests of all and satisfy the needs of the parties involved. Any such parties were fully entitled to notify the dispute to the Ottoman authorities.
The values described in this brief quotation further demonstrate that an effort to ‘put things right’, an expression very close to the underlying principles of RJ, orientated to mending what has been done. The text says “have concern for all in the village”, i.e. a clear recommendation is being made to observe the principle of equality, to respect and care for the ‘wrongdoer’ and the victim alike, an entire network of interrelated links is being describe, which – in case it fails‘- would weaken and jeopardize the entire community.
Living in this local governance environment, Bulgarians had to choose dignified Bulgarians of proven moral integrity of vast intellectual, emotional experience, which naturally elevated them to community leader level. They were capable to create a safe, protected environment, which guaranteed all the right to fair trial. This is the reason why the last part of the ‘Guidance’ related to the moral and ethical code of these key figures at the village municipality who acted as guardians of the area looking towards ensuring justice within the community.
This general overview of developments which occurred throughout the history of justice in Bulgaria demonstrate that historical events make encounters of various cultures possible, which fully applies to the independent existence of the Bulgarian nation, which required and sought a common seeking of a set of tools necessary for the preservation, survival and maintenance of justice. During the years of Byzantine dominance this played the role of a catalyst of the feudalization of the state, its assuming all attributes and prerogatives of official state power and the development of a logical, differentiated legal system. This allowed the second Bulgarian kingdom to catch up with and commence developing with a greater degree of alignment to Western justice, following the ‘meeting’ of the two major ethnic groups, which succeeded in forming a state without fighting each other. On the contrary – they succeeded in jointly giving birth to the Bulgarian nation.
The second period of domination under the Ottoman Empire bears more self-preservation characteristics, in terms of a self-contained ethic group, religion and language. This lead to a number of atrocities, bloodshed and rebellions. Towards the end of the period of domination the Bulgarian municipality, regardless of small odds, succeeded in attaining the status of a self-governing unit wherein the interests of the community could be protected, which allowed for its continued development and strengthening and keeping the fabric of social relations strong. It is our opinion that the roots of RJ in Bulgaria can be traced back to this village municipality. The area in which research could focus in the future may be to establish the strength of this premise by following up on the development of the municipality during the Revival period.
In the first part of the essay we asked the question of how a multiethnic state could be forged, underlined by the hypothesis of tolerance and respect for an alien culture, however, had this assumption not been made it would not have been possible to go so further back in time. Furthermore, the needs of victims then – defined by the values upheld in common law were solely based on the principle of retribution. ‘Making things right’ was a responsibility of the victim, and not the offender. Nevertheless, society still abounds in stereotypes and attitudes towards offenders that that are simplistic in the extreme. One of the ways to overcome this is to turn to history and tell the story of how Bulgarians of times long gone by have attempted to tackle crime and ‘make things right’.