History of state and law in the foreign countries: textbook 9786010411388

Citation preview

КАZAKH UNIVERSITY OF INTERNATIONAL RELATIONS AND WORLD LANGUAGES NAMED AFTER ABILAY KHAN

Z. K. Ayupova

HISTORY OF STATE AND LAW IN THE FOREIGN COUNTRIES Textbook

Almaty «Kazakh University» 2015

UDC 340.1 (075.8) LBС 67.0 я 73 A 98 Recommended for the publishing by the studying methodical section on the group of the specialties «Law» KazGJU February 14, 2014 on the specialties 6В030100-jurisprudence, 6В030200-international law, protocol № 10

Reviewers: doctor of law, professor A.E. Zhatkanbayeva PhD, Associate Professor N.S. Tuyakbaeva PhD, Associate Professor E.T. Omirzhanov PhD, Associate Professor S.T. Shaikenova

A 98

Ayupova Z.K. History of state and law in the foreign countries: textbook. – Almaty: Kazakh University, 2015. – 230 pages. ISBN 978-601-04-1138-8 This textbook is the methodical complex on the History of state and law in the foreign countries consists from the lectures, tests, glossaries, the questions for self-preparation and recommended literature. It is devoted to the students of the universities, colleagues and also bachelors, masters, teachers, scholars and readers.

UDC 340.1 (075.8) LBС 67.0 я 73 © Ayupova Z.K., 2015 ISBN 978-601-04-1138-8 © KazNU after аl-Farabi, 2015

Contents

Preface...................................................................................................4 Part I Chapter 1. State and law of Ancient Egypt........................................6 Chapter 2. State and law of Ancient Mesopotamia..........................12 Chapter 3. State and law in Ancient India........................................20 Chapter 4. State and law in Ancient China......................................30 Chapter 5. State and law of Ancient Greece....................................39 Chapter 6. State and law of Ancient Rome......................................49 Chapter 7. The feudal state and law of Germany.............................63 Chapter 8. The feudal state and law of England..............................69 Chapter 9. The feudal state and law of France.................................79 Chapter 10. The state and law of the Arab Caliphate........................91 Chapter 11. English bourgeois revolution of the XVII century.........98 Chapter 12. Creation of USA...........................................................106 Chapter 13. The French revolution of 1789-1794...........................116 Chapter 14. State and law of German Empire.................................136 Chapter 15. Japanese Empire and China in XIX-early XX centuries.................................................................143 Part II Tests...................................................................................................150 Glossary.............................................................................................218 Recommended literature.................................................................229

Preface

H

istory of state and law in the foreign countries among the social sciences calls the historical and legal discipline, as far as they are directly related, the science of history and the science of the state and law. According to its nature, the history of state and law in the foreign countries is the legal science, and plays an integral part and is the necessary element in jurisprudence. In comparison with the general history of the historical and legal science the history of state and law in the foreign countries can not investigate the general public, and studies the historical development of a complex system of government and legal institutions. The history of state and law in the foreign countries operates a variety of facts, specific events in the political life, activity states, governments, classes, parties, etc. It’s identifies the historical patterns of the development of the state and law. The history of state and law in the foreign countries is closely linked to another legal science and academic discipline – the theory of state and law, which also studies the patterns of development of the state and law. But the theory of state and law with a logical method reflects the historical process in an abstract form. It produces a system of common law concepts and categories, which are widely used in the training course of history of state and law. In contrast to the theory of law, historical-legal sciences study specific processes of public-legal ins-

Preface

titutions and phenomena emerging in chronological order and are mani-fested in a particular historical space. In this textbook the questions explored the origin and development of the first codified customs and traditions, the first laws. Particular attention is paid to the laws of the Roman lawyers, Corpus Juris Civilis. Certainly, in the history of the state and law there are lots of so-called blind spots. The author tries in this textbook to find the answers to many controversial issues of history. The author relies on quite a wide range of bibliographic sources and legal acts in the history of state and law in the foreign countries, to the works of well-known scientists and researchers of the ancient world, the Middle Ages, modern and contemporary times, such as L.V. Dukov, O.A. Zhidkov, N.A. Krasheninnikova, Z.M. Chernilovsky, K.I. Batyr, N. Grodekov, J. Gurlyand, A. Dobromyslov, I.V. Erofeev, F. Leontovich. The main objective of this textbook is to study the course «History of State and Law in the foreign countries». The material has represented in the chronological order, and submits the following main stages: ancient world, the Middle Ages, modern and contemporary times. Each of these periods represents a historic step in the development of the state and law. The author took into account the fact that the evolution of ancient and medieval societies of the East was a specialization by the civilization, which distinguishes it from the development of the ancient slave society and feudal societies of the West. This makes largely used in conventional textbook concepts – antiquity and the Middle Ages against the East. Textbook intended the students of international jurists and enrolled in undergraduate and graduate and post-graduate students, job seekers and a wider audience. These tests should foster learning theoretical material. The number of tests is fully consistent with the number of credits allocated for the study of this subject. The author expresses her sincere gratitude to the referees for their assistance in the preparation of this textbook to print, as well as those who contributed to the publication of this textbook.

5

PART I

CHAPTER 1

State and law of Ancient Egypt

1. 2. 3. 4. 5. 6.

State of Ancient Egypt. Periodization of the history of ancient Egypt. Social system. The main features of the political system during the early Empire. The main features of the political system in the period of the Old Kingdom. The main features of the political system in the period of the Middle Kingdom. 7. The main features of the political system in the period of the New Kingdom. 8. Army. 9. The judicial system. 10. Law of Ancient Egypt.

1. The government of ancient Egypt – one of the oldest states in the world, it has been developed to the III millennium BC in northeastern Africa. Its location in the valley of the lower reaches of the Nile River caused the intensive development of irrigated agriculture, which contri-buted to social stratification and the allocation of top management, led by the chief priests, the priests in the first half of the IV Millennium Goals BC. In the second half of the IV millennium BC in Ancient Egypt-folding are the first state formations – nomes. They also occurred due to the development of irrigated agriculture: farming communities unified around the temples for joint irrigation. By the time the Egyptian kingdom was united in its territory forty. They first teamed up in two

CHAPTER 1. State and law of Ancient Egypt

independent states – Upper (southern) Egypt and Lower Egypt. In the realms of noma turned in, headed by Nomarh. By the end of the IV millennium BC kings of Upper Egypt conquered under their rule all of Egypt. 2. History of Ancient Egypt is divided into the following periods: Early Kingdom period (3100-2800 years BC); Old Kingdom period (about 2800-2250 years BC); Middle Kingdom period (about 2250-1700 BC); the New Kingdom (about 1575-1087 years. BC). At the end of the New Kingdom Egypt is in decline, his sleep-winning Chala Persians, then the Romans, including Egypt under their Empire. 3. Egyptian state during the early kingdom is an ancient tribal union. The bulk of the population was free peasants, commoners. Community owned the land on the basis of communal land tenure. State power considered itself the supreme owner of all the land and charged in his favor of the income of the free population communities. In Egypt earlier than in other countries, is the class slave society. Already during the early kingdoms resulting having numerous wars appeared captive slaves who used to enjoy in large farms. During the development the economy of the Old Kingdom had a high level. And social stratification of the population has already been clearly established. Power of the state was approved at a concentration of ownership in of individual persons from Pharaoh. Largest slave-owning aristocracy had huge land holdings and stood on the top of the social ladder, occupying an important position at court and in public administration. Peasant commune members were the main labor force in the state. Although the slave market in the era of the Old Kingdom have existed, slaves were not enough. Aspecial place in Egyptian society took priests. They were surrounded by universal veneration-wife because the monopoly had knowledge of the other world, mastered the art of healing, the construction of complex architectural structures, were able to calculate the amount of land. The priests were the support of royal power, deifying and glorifying pharaohs. Temple economies were exempt from taxes and castings for the state. Pharaoh was not only the supreme Lawyer, but the high priest, and gradually began to separate these functions. The heyday of the Middle Kingdom (XVIII c. BC) describes the following important features of social relations: increases significantly slavery in private households and regulate landowners is a bundle of rural communities, leading to the formation of chalk owners – nedjeses.

7

8

History of state and law in the foreign countries

The layer of nedjeses, in turn, is divided on the poor, or small, nedjeses (small farmers) and strong nedjeses – grown rich representatives who became clerks, merchants and landowners. In the New Kingdom continues to develop slavery, what a way to exist, many wars. Slaveholding rela-tions penetrate deep into society. Slave labor is not only widely used in household, from among them, went artisans – masons, stone carriers, blacksmiths, weavers, builders, etc. The bulk of the commune of farmers impoverished. Farmers are forced to use the royal and temple grounds. To impose various duties performed annually watches of people, live-stock, and poultry. Rise of the priesthood continues. It turns into a closed hereditary caste. Growing wealth of senior priests, and therefore transcends their liberation from dependence in relation to the central government. 4. In the early state of the kingdom begins to form apparatuses. During this period, the head of state was the king whom environ-pressed numerous court consisting of a chip and the court workers. The value of the royal power was emphasized deification of its carriers. In the early kingdom in the hands of the state was supreme command works for the organization of an irrigation works in the Nile Valley. 5. Feature of the political system of the Old Kingdom is the centralization of control. The legislative, executive and judicial power was concentrated in the hands of Pharaoh. All the important affairs of the state – measures for irrigation, court appointments and awards, the imposition of duties and mastering them, military campaigns, statebuilding – were conducted under the general direction. This has led to the existence in Egypt par-ticular political regime, characteristic of ancient countries – Oriental despotism. Despotic regime was based on the sanctification. Pharaoh strengthened his authority by religious ideology, and he was deified. The members of the royal house, as a rule, occupy important positions in the state – the supreme officials, military leaders, custodians, taskmasters and high priests. After the king the key person in the government had the upper dignitary – vizier (jati). He is responsible for the control input of the activities of the supreme judiciary, the administration of government workshops, and all the work of the king. He also was in charge of a variety of public storage. 6. The beginning of the Middle Kingdom is characterized by almost absolute power of Nomarh. Unification of the state and strengthening the central government contributes limit pharaohs Nomarh power –

CHAPTER 1. State and law of Ancient Egypt

comes replacement independent of the provinces with new subject to imperial authority. In support of these reforms was the king at court, to know the serving, as well as the host, is protected by the king. 7. The main feature of the political system in the New Kingdom becomes a strengthening of the centralized bureaucratic administration. The country was divided into two administrative districts: the Upper and Lower Egypt each motivated by a special governor Pharaoh. Administrative districts were divided into areas – noma. Cities and fortresses headed chief, who appointed the Pharaoh. The first and the highest dignitary remained vizier. Other important officials have been Treasurer and Chief of all the king’s work. Numerous officials, scribes wrote down orders, supervise the work of farmers and artisans, counted revenues going to the treasury. Servitors know upstage know aristocratic – Pharaoh shall protect the dignitaries who came from the lower classes, as opposed to those who inherited the rank and wealth from their ancestors. 8. Regular army in the ancient kingdom existed. Spending military operations of the army created militias who engaged in peace of the farm. Regular officers were not, at the head of military units performed by the pharaoh or appointed them dignitary; during dissociation military force of militia was at the disposal of local Nomarh. During the Middle Kingdom, there are regular officers. In Egypt, it begins to take shape the royal guard and personal protection of the king. After the conquests of Hyksos in the XVIII century BC, the Egyptian army gets infantry and cavalry appear chariots. In the New Kingdom is expanding the boundaries of the state at the expense of neighboring areas, and due to the intensification of military policy created by the constantly efficient army of Egyptians farmers, small and medium citizens are under full content of the pharaoh. In the long term for construction of border fortresses, bearing security items fleet. Number of officers, as well as their role in the state led to growing social prestige. The regular army is replenished periodically engage in census and census military sets of boys, recruits. In addition to the new recruits and the army began to form at the expense of mercenary units. The growing number of mercenaries from foreigners at the end of the New King-dom Egyptian army weakened, and at the same time being able military empire. Police functions are executed first army, and in the New Kingdom – special police units, who were guarding particles, canals, granaries, temples.

9

10

History of state and law in the foreign countries

9. The court in ancient Egypt was not separated from the administration. In the ancient kingdom as the local court was community organizations government. These competencies include disputes about land and water, family and inheritance relations. Royal judges were Nomarh Prefectures. Senior supervisory role over their activities carried out by the pharaoh or the vizier, who could review the decision of any court. Certain judicial functions had temples, and the decision of the priest-oracle due to the large religious authority could not be challenged by local officials. Prison in Egypt is an administrative and economic settlement of criminals. Special royal offices engaged in the distribution of different categories of people powerless to heavy forced labor. 10. Law of Ancient Egypt. 1. The sources of law in Ancient Egypt: – initially – Pharaoh; – the development of the state – the legislative activities of the Pharaohs. 2. In Egypt, there were the following estates: – State; – temple; – private; – Community. The largest landowners are the temple management and King grandees. They can perform various land transactions – sell, bequeath. In the village the development of private property has been slow, as the community served deterrence factor. Movable property (slaves, beasts of burden, inventory) could be in private and other property, and be subject to various transactions. 3. Types of contracts, known in the ancient Egyptian law: the loan agreement; contract of employment; contract of sale; land lease agreement; contract luggage; terms of partnership. Because of the special value of the land in Egypt created a special order of the transition it from hand to hand, provides for the commission of three actions: first – an agreement between the seller and the buyer of the subject of the contract and payment; second – the seller swore in the face of the gods, existence of a contract; third – to enter into the possession of the buyer, which led to the passage of the right proper-raising to the ground. 4. Marriage in Egypt to be based on a contract between husband and wife. Property brought by the wife as a dowry, had property of his

CHAPTER 1. State and law of Ancient Egypt

wife, which is also determined by the contract. Divorce carried free for both parties. In Egypt, a long time there was a matriarchy. Over time, the head of the family become husband and wife, although it is high enough position in the family, losing the previous equality with him. Egyptian law allows inheritance, in law and for broadcasting. Heirs at law were the children of both sexes. 5. Egyptian law recognized crimes broad range of acts that can be grouped into the following groups: – attacks on political and social system – treason, conspiracy, rebel-lion, divulging state secrets. These crimes were considered the most serious, and if they are the perfect answer along with the direct culprit bearing all family members; – offenses religious character – Kill the sacred animals, sorcery; – Crimes against persons – murder, mutilation; – property crimes – theft, cheat in measuring; – offenses against honor and dignity – adultery, rape. The purpose of punishment was deterrence. Common punishment was the death penalty. In addition, the punishment applied to mutilation, caning, imprisonment, return to slavery, soft penalties. The process was carried out equally in both criminal and civil cases. The case began with a statement by the victim. As evidence were witnesses, oaths. During the investigation torture was not unusual. Paperwork was written character. Questions for the self-control: 1. Tell about the position of the State of Ancient Egypt. 2. Give the Periodization of the history of Ancient Egypt. 3. Account the main features of the political system during the early Empire. 4. What means the social system of the state? 5. What represented the judicial system of Ancient Egypt? 6. What were the principles of the creation of the army of Ancient Egypt? 7. Tell about Law of Ancient Egypt. Task for srs: Please, explain the chronology of the history of the State of Ancient Egypt.

11

CHAPTER 2

State and law of Ancient Mesopotamia

1. Ancient Sumer. 2. Ancient Babylon. 3. The social system of ancient Sumer. 4. State system of ancient Sumer. 5. Slavery in Babylon. 6. Free people of Babylon. 7. Government. 8. Judicial system. 9. Army. 10. Hammurabi Laws.

1. In Asia Mesopotamia, between the Tigris and Euphrates, the first of the state arose in the beginning of III century BC In the social and political system of the small city-state for a long time is preserved features a tribal organization. State Schumer owes its name to the people of Sumer, ancient Sheha population, who laid the foundations of civilization in Mesopotamia. Gradually took over the entire territory of the state lived north of the Sumerians Akkadians, create powerful Sumerian-Akkad Kingdom. 2. About 2000 BC interfluve captured nomadic Amorites, who won Sumerian-Akkadian kingdom and settled in its territory. One of the strong points of the nomads was Babylon. Elevation of Babylon contributed to geographical location and with the king Hammurabi (1792 – 1750 BC) Babylon became the capital of the state which included most of Mesopotamia. After the death of Hammurabi, the Old-Babylonian Empire (Babylonia), having suffered a series of

CHAPTER 2. State and law of Ancient Mesopotamia

defeats from their neighbors in 1595 g, BC was destroyed by the Hittites and the kassyats. In the VII-VI century. BC. e. Babylon experienced new growth – it was the era of the New Babylon (Chaldean) kingdom. During the reign of Nebuchadnezzar II Babylonian kingdom became a powerful state. After the death of Nebuchadnezzar II, Babylonia is captured by the Persian king Cyrus. In a society developed slaveholding relations, there is a growth of large estates, the construction of the temple, defensive and irrigation facilities. Are developed craftsmanship and trade. As in ancient Egypt, high social position is occupied by priests. 3. Feature of the social structure of ancient Sumer – is preserved rem-nants of a tribal organization. The existence of territorial rural communities due to the feature, that agriculture is based on the principle of organized-consistent irrigation. Centers of agricultural management were temples. At first they did not own the land – every village had his temple land that was being processed in the village communes, and the harvest was given to the temple. But gradually began to lead churches in these lands, agriculture alone, with them for themselves. Increase in the territory of the temple land was due to their sale, which was resolved in early Sumer. Part of the land lease. The upper strata of society was the Sumerian priests, play a huge role in the life of Sumer. Churches organized canals, collected taxes, ruled the life of neighboring towns and wood. Tribal community members were more than fifty percent of the population. Community members who have lost touch with the community, have the personal freedom, but is economically dependent on the churches and individuals, wage labor landless widely used on the temples lands. Slaves in Sumer were mostly foreigners, captured or purchased. Slaves could have and churches, and individuals. 4. State system of ancient Sumer is different in that in the territory of Sumer were dozens of independent temples and areas that do not constitute a single state. Most know were Eridu, Ur, Lagash, Umma, Uruk, Kish. The head of the city and the area was the high priest of the city’s main storage, who bore the title «ensi» («patesi»). If the ruler’s authority ex-tends beyond the city limits, the governor assigned a title of «lugalya». The main functions of the governor came down to the management of public construction, irrigation and temple management. Ensi and Lugano headed communal cult, were leaders of army, preside over the council of elders and the national

13

14

History of state and law in the foreign countries

assembly. Authorities to limit the power of the ruler, was the council of elders and the national assembly. They elected governor, gave him a recommendation, producing overall control over its opera-tions, implementation of court and community management of property. 5. Lower social stratum in ancient Babylon was slaves – vardum. They became prisoners of war, as well as becoming enslaved and disfranchised free. Slaves were divided into: – king’s; – temple’s; – privately owned. The law provides for debt slavery, which was limited to a period of 3 years. Urgent debt slavery explained by military necessity: the debtor, trapped in slavery could not be the Babylonian army. To refer to the slave state of slaves places special value, cut or burn out on the body. Slaves were considered by the law as a thing, a wholly-own uniqueness owner, slaves could sell or mortgage, etc. Damage to the health or killing a slave was considered no more than a damaged property of his master, to whom the offender is liable for compensation. Slaves had no right to property. With the permission of Senior they could own property, but it was considered part of the property of state and went over to him after the death of a slave. 6. Babylon free population was divided into: – Full (avilum); – unequal (mushkenum). The bulk of the population was full-fledged citizens – avilum. They could own land, carrying property and service, as well as to replace the post of administrative and military apparatus. Full citizens were not uniform estate. Certain wealthy commoners became more independent. Similar to them appeared impoverished community members to fall into bondage. Another part of the population was people of the conquered cities and possessing stay – mushkenum. Along with the class division was divided by occupational classes: – The first place was taken by court officials – the king’s guard, and higher priesthood; – Then came «redum», «barium», «dekum», «lubuttum» – various military; – In accordance with the state value of religion and churches honor position in the professions occupied the temple servants, high social position occupied by officials;

CHAPTER 2. State and law of Ancient Mesopotamia

– lower levels of professional and career ladder occupied large merchants, entrepreneurs, doctors, artisans, laborers. 7. In its system of government Ancient Babylonian kingdom was a centralized state. Legislative, executive and judicial powers were in the hands of the king. The King believes the deputy minister and the god-protector. Bottom royal power was limited rich cities and strong priesthood, which acted guardian inviolable cities. In Babylon there were three so-called «holy» cities occupying the privileged position – Nippur, Sippar and Babylon. Preferential certificates held by these cities, deprived of the right of kings to imprison their citizens to claim their soldiers, workers for temples economies. Chaldean rulers created a well-oiled mechanism pack – all control has been concentrated in the royal palace, personal was drawn to the attention of the king of all the affairs of the state. Therefore mind and experienced officials valued, causing displacement of the tribal nobility servile. They also valued scribes. Management feature of the palace was that person, ruling royal household, and held senior positions in the Member States. To top dignitaries of the state included the vizier, the butler, the royal financer, cupbearer, chief general. In the system of government there differed central and local government. Major cities ruled Vicegerent. On the ground, authorities maintained communal self-government, to carry out administrative, financial and judicial power. 8. In Babylonian society to the reign of Hammurabi leading role in the implementation of justice belonged to the temple and community courts. As the judicial councils were temples, community of specially selected board of community courts. In collegial courts were composed of members of the council of elders, directors performed. Strengthening of royal power has restricted judicial duties of communities and churches. During Hammurabi’s reign in all major cities there have been royal courts considering anything at the king’s men. The king was regarded as the highest court, but did not act as the highest court of appeal or the appeal – he was entitled in the event of the death penalty, as well as to receive complaints about judicial red tape, to the misuse of the judges on the denial of justice. In the Babylonian society in the temple tips, carried out the functions of the Trial, which includes representatives of the People cities, in which there were temples. 9. In Babylon there was a regular army. During major military cam-paigns convened communal militia. When there was a gap of

15

16

History of state and law in the foreign countries

Hammurabi standing army of communal land tenure. Warrior got put on royal land, which ensures him and his family, and the military put completely out of circulation, all transactions concerning land warrior is considered void. If the warrior threw his allotment for the sake of getting rid of the service, we did not lose the rights to it for a year, provided the return to his duties. In order to enhance combat effectiveness and discipline in the army Laws of Hammurabi prescribed severely punish soldiers who violated the order of the king’s speech in the campaign, as well as military commanders used in their property for the soldiers («ilku») or gave the property for rent. 10. Hammurabi Laws 1. General Information. 2. Property. 3. Types of obligations. 4. Marital and family relationships. 5. Types of crimes and punishments. 6. Process. 1. The first codification of the laws of Babylonia, refer to the beginning of King Hammurabi, did not reach us. The known laws of Hammurabi were created at the end of the board. Collection of laws engraved on the black basalt columns. The text of laws fill both sides of the column, and write a relief, which premises upstairs at the front of the column, and depicts the king, one hundred before the sungod Shamash – the patron saint of the court. Statement of the law is different in that is made in casuistic form, texts do not contain the general principles are not religious and moralistic elements. The text of the volume consists of three parts: – the introduction, in which Hammurabi announces that the gods gave him the Kingdom in order «to the strong should not harm the weak» and computes the blessings that have been provided to them of their city state; – Article 282 of the law; – broad conclusion. Sources in the preparation of the collection were: – customary law; – Sumerian statute books; – new legislation. 2. Under King Hammurabi of private ownership of land has reached the highest level of development. In Babylon, there were the following types of land ownership:

CHAPTER 2. State and law of Ancient Mesopotamia

– royal; – temple; – Community; – private. Imperial and temple management ruled king. With the development of private property in land declined communal lands, came the decline of the community. Therefore, the land can be freely sold, leased, transferred by inheritance, any restrictions on such transactions from the community does not exist. Large landowners used slave labor and wage-workers, smallholders cultivate their land themselves. Allotments soldiers, as well as property soldiers obeyed especially legal regime. 3. Hammurabi’s law known instruments: – lease; – tenancy; – personnel recruitment; – Loan; – purchase and sale; – Storage; – partnership; – exchange; – assignments. Important role in land relations of the time is the renting of land, so in the Code of Hammurabi has several articles devoted to rental – field, garden, unexplored land. In Hammurabi mentions various types of tenancy: rooms, pets, boats, chariots, and slaves. Mouth hires stuff, and responsibility in case of loss or destruction of rented property. Hiring farm workers, doctors, vets, and builders was also possible. The Act provided for payment of these persons and their responsibility for the results of labor. Feature of the law of Hammurabi in respect of the loan agreement (both monetary and natural) is intended to protect the debtor and the creditor to prevent debt bondage. Laws in detail governed by the following provisions: – limit the maximum period of three years of working off the debt; – limit the interest charged usury; – lender liability in case of death of the debtor as a result of handling. Contract of sale was also very common due to the existence of private property in real estate. Purchase and sale regulated by the following provisions:

17

18

History of state and law in the foreign countries

– sale of goods (land, buildings, slaves, livestock) implementation in writing with witnesses; – the seller could only owner of the thing; – sale of property seized from the market are void. 4. Marriages are made on the basis of a written contract between the future mu shall show and the bride’s father, and was valid only if the treaty. Head of the family had a husband. A married woman had a right-ability: she could have her property, retain the right to the dowry brought by her, had the right to divorce, could inherit after her husband with the children. However, the wife’s rights were limited: for infidelity (as defined in the law as adultery) is subjected severe punishment, if was barren, the husband was allowed to have a «side» his wife. As head of the family, the father of the children had a strong power, he could sell the children, to give them as hostages for their debts, and his tongue cut slander the parents. Although the law recognizes testamentary succession, the predominant mode of inheritance is inheritance by law. The heirs can be: – Children; – adopted children (Laws of Hammurabi allowed to adopt children); – grandchildren; – Children from a slave-concubine, if the father acknowledged their own. The father had no right to disinherit his son, not committed crimes. 5. General concept of crime and the list of acts that are recognized criminal, Hammurabi not give. From the content encoding, there are three types of crimes: – against a person; – property; – against the family. Crimes against the person are classified as reckless killings. A murder is silent. Details are considering various types of self-harm: damage the eyes, teeth, bones, and the infliction of injuries. Among property crimes law is called stealing cattle. Different from theft crimes are considered looting, hiding of slaves. Crimes that undermine the foundations of the family, the law is considered adultery (the infidelity of his wife, and the wife) and incest. Crime is also done to undermine his father’s power. The purpose of penalties of Hammurabi was the retribution that defined their views. The main types of sentences were:

CHAPTER 2. State and law of Ancient Mesopotamia

– death in different ways – the burning, drowning, planted on a stake; – mutilation punishment – amputation of hands, cutting off fingers, tongue, and so on; – fines; – exile. In determining the penalty for the crimes committed against the individual, legislation to create a «retaliation» – «an eye for an eye, a tooth for a tooth» when the perpetrator was administered the same fate as that suffered. Penalties for property crimes were death, mutilation, or cancellation of a significantly higher value of the stolen. Failure to pay the fine the offender executed. Crimes that undermine the foundation of the family, is also punishable by death penalty (for adultery), or self-harm – such as cutting off the hands of his son, to strike his father. 6. Runs processes in criminal and civil cases shall be the same and started on the complaint of the injured party. Proof properties were witnesses, oaths, and the ordeal – judicial test (e.g., test the water, regulated by the legislator). Under the rules of procedural law judge must personally use follow. Change his mind could not judge threatened of large fines and prison offices without the right to return to it. Questions for the self-control: 1. Where was situated Ancient Sumer? 2. Where was situated Ancient Babylon? 3. Tell about the social system of ancient Sumer. 4. What the difference between state system of Ancient Sumer and Ancient Babylon? 5. Tell about the sources of the slavery in Babylon. 6. What were the specific features of the Government in Ancient Babylon? 7. Tell about the judicial system of Ancient Babylon. 8. Analyze Hammurabi’s Laws. Task for srs: Write an essay about the history of the State of Ancient Babylon.

19

CHAPTER 3

State and law in Ancient India

1 Harappa civilization. 2. Vedic period. 3. Magadh-Mauriu era. 4. Creation of varnas. 5. The rural community. 6. Slavery in Ancient India. 7. Government. 8. Local control. 9. Judicial system. 10. Army. 11. Laws of Manu.

1. One of the oldest civilizations in the world has developed more than four thousand years ago in the Indus Valley. Capitals of political groups in III millennium BC are hundred so-called «bronze city» Harappa and Mohenjo-Daro – major centers of handicraft production and trade. Reliable information about the class structure and political organization of this time have not survived, but we know what happened here disintegration of the primitive system, started the social stratification of the population. Therefore, by the middle of the II millennium BC Harappa civilization began to decline, which ended with the arrival of Indo-Aryan tribes. 2. Period of Ancient India from the middle of the II millennium BC the first half of I millennium BC called Vedic. This period is marked by the formation of class society and the state – the great achievements in the field of production led to the stratification of society, to strengthen

CHAPTER 3. State and law in Ancient India

the social inequality. Guide the tribe to carry out military leader – Raja, appoints first meeting – saphoy. With the increase of social inequality, he gradually rose above the tribe, the tribe subordinating bodies of governance. Over time, the position of the Raja became hereditary. With the increasing power of the Raja for the decline the role of the: gradually public meetings, appoints Raju lost his role and became fellow of the Assembly meeting values, approached Raja. Tribal bodies develop into state administration bodies. Slave-owning aristocracy held senior positions in the public administration. Squad was breeding into a standing army. People are taxed, which are paid by the king by means of special officials. Thus, in the Vedic period, on the basis of tribal collectivism began erupting public education took shape of monarchies or republics. For the most part of their territory was small. 3. In Magadha Mauri era was laid the foundation of many state institutions, developed in the subsequent periods. It is so called because the largest and most powerful states arising out of the Vedic period was Magadha, and the highest peak is the state reached in the IV-III centuries BC at Maurya dynasty, which united under his rule most of the territory of India. This era is characterized by strengthening the monarchy, as well as fall the role of institutions of tribal governance. Although the creation of a united Indian state helped communicate the various peoples of the interaction of cultures, erasing narrow tribal framework, but the Mauryan Empire consisted of tribes and nations are at different stages of development. Therefore, Maura could not save the unity of the state – in the II BC India, in spite of a strong army and a strong management apparatus, split into many public entities. 4. The expansion of primitive society and the development of social and economic inequality led to the emergence of social classes – Varna. All free are divided into groups that are not equal in their public status, rights and duties. With the design of the slave state division of all freedoms four varnas announced eternally existing orders and sanctified by religion. In accordance with the Laws of Manu, there were the following castes: – Brahmins – members of priestly birth; – Kshatriyas – warrior aristocracy; – Vaishyas (Vaishya) – free full-fledged community members; – Sudra – the lowest varna, unequal members of society. Lifestyle of each caste was formulated in special laws – the Dhamma. The competence of the first two castes included public administration and

21

22

History of state and law in the foreign countries

military command. Vaishyas prescribed farming, cattle, trade and commerce. Sudras were to be in the service of the three higher castes. Over time, the class became more and more withdrawn. This contributed to: – strict endogamous – marriages between members of one varnas; – definite, fixed hereditary profession; – one worship gods. The transition from one caste to another is strictly forbidden. Limiting the possibility of mixed marriages produce different financial compensation for the killing of a person depending on their membership of a particular Varna: a member of the highest varna misconduct in rela-tion to a member of lower assumed a lighter sentence, and vice versa. Subsequently, with the conversion of freemen in the dependent peasants were Vaishyas by value approach Sudras, and the first two castes – caste nobility – to stand apart from the two lowest. 5. The most important component of social, public and of economic system in Mauri period was a community, as the union adopted a large part of the population – free farmers. The most common form of the community was a rural, although in some places there was still a primitive and tribal. The community retains the features of one team and the old community traditions – the free inhabitants of the meetings solved various management issues. Over time, more and more importance is the head of the state. Initially, the community leader was chosen at a meeting of community members, and then approved by the state authorities, gradually turning into her representative. The community had seen a property division: – top, exploited slaves and employees; – community members who are themselves working in their fields; – impoverished community members who lost their land and tools and were forced to work as tenants. Village artisans also held the position of: – artisans who worked independently and had the proper workshops; – artisans who were hired to work for a fee. 6. Slavery in ancient India is notable for its lack of development – along with the slave relations persist remnants of primitive society: Indian slaves – dasas could have family-own liability, the right to inheritance, ownership of received gifts. Free, becoming a slave, did not lose their family and caste ties. Slave labor did not play a significant role in the economy of ancient India. In law, the ancient

CHAPTER 3. State and law in Ancient India

Indian state does not have a clear anti-Delivered free and slave, as though it was the slave state, but varna overshadow classes. However, Manu indicate the following bits of slaves: – trapped under the banner (of war); – slaves for the content; – slaves born in the house of the owner; – purchased; – presented; – were inherited; – slaves due punishment. A characteristic feature was the presence of the ancient Indian slavery legislation aimed at limiting the arbitrary host on slaves. 7. Magadha Mauri era is characterized by strengthening the monarchy and the fall of the role of institutions of tribal governance. The head of state is the king – Raja. With the transfer of power was given strict inheritance principle – during the life of the king appointed one of his sons, the heir to the throne. The king was at the head of government and had the power – was the head of the fiscal administration, the supreme destiny, published edicts, appointed major government officials. Important place in the court was given to the king’s priest, who belonged to the influential brahma family. With the king existed tips: – Parishad – council royal dignitaries; – Privy Council; – Rajasabha, or Royal Council. In the case of extremely urgent cases Parishad members got together with members of the Privy Council, consisting of special agents. In the age of the Mauryan Parishad acquired functions of the Political Council to check all control system and carry out the orders of the king. It consisted of the military and priestly aristocracy, which sought to preserve their privileges and to limit the absolute power of the ruler. In the early periods Parishad was wider and had more democratic authority by nature, has a significant impact on the rajah and his policies. Gradually, he fell on to quantitative composition of aristocracy, his role was reduced to perform advisory functions under the Raj. Sabha has undergone similar transformations – formerly widespread on assembly of notables and members of the urban and rural population. By Mauryan era Sabha membership is much narrower; it also assumes the character of the king’s council – rajasabhi.

23

24

History of state and law in the foreign countries

8. In the age of the Mauryan state had the following administrative divisions: – Main province; – usual province (Janapada); – area (Pradesh); – District (Akhal); – village. There were four main provinces, and they have a special status, including a large degree of autonomy. They were by run princes. To check the princes among local officials there was the institute of special inspectors. In major cities, counties had the office. The village was the lowest unit of the provincial government. 9. In ancient India, there were two systems of courts: – royal; – intra-community (caste). Highest court was the royal court, which was attended by the king himself, together with the Brahmins and advisers to act in his or Court College (Sabha), consisting of the Brahman and the king appointed three judges. The king as the supreme judge owned the right to annually declare amnesty. Interpret the law in a court could Brahmin, at least Kshatriya or Vaishya. Starting from ten villages in all administrative units should on the panel of judges was appointed three judges’ ranks. In addition, criminal adjudication needed special judge. Fighting crime in the city occupy the city authorities. Most of the cases were treated casteN community courts. 10. War and plunder other nations were seen as a major source of prosperity of the state. Therefore, the army should play important role in ancient India. Chief of the Army considered as king. Most of the stolen property is transferred king, subject to the partition of the rest of the soldiers. Army was recruited from the following sources: – hereditary warriors – Kshatriyas; – mercenaries; – warriors supplied dependent allies, vassals. The army also carried a function of maintaining public order. She had to stand in defense of national integrity. 11. Laws of Manu. 1. General. 2. Ownership. 3. Obligations.

CHAPTER 3. State and law in Ancient India

4. Marital and family relationships. 5. Criminal law. 6. Lawsuit. 1. Manu is the so-called Dharmashastr – a collection of norms (dharma), the rules that define the behavior of Indians in their daily life. These standards were religious in nature and were ethical, not legal. The concept of law as a set of separate rules governing social relations in ancient India was not. The laws of Manu had twelve chapters, which consist of 2685 articles written in the form of verses. Articles contained in Chapters VIII and IX, have a direct legal content. Others clarify and consolidate existing varna (caste) device. 2. In accordance with the Laws of Manu, the following ways by the appearance of ownership: – inheritance; – receiving as a gift, or finding; – purchase; – conquest; – usury; – type of work; – receiving alms; – prescription of ownership (10 years). For certain castes were characterized by «their» ways of acquiring property. For example, a gain – for the Kshatriya, the execution of works – for Vashya, alms as was typical, oddly enough, to the Brahmins. Acquire a thing was possible only from the owner. It was forbidden to prove ownership of a reference to the bona fide possession. If a bona fide purchaser detected the stolen thing, it still returned to the owner. Already during the creation of the Laws of Manu in India understand the difference between the property and possession, and devoted considerable attention to the wound private property, particularly land ownership. Land divided into royal land, community and individuals. Manu also protect personal property, referring to slaves and cattle inventory as the most significant. 3. In the Laws of Manu and liability discussed relations, mainly in the Acts of the obligations of contracts. There are considered the following types of contracts: – a loan agreement; – contract recruitment;

25

26

History of state and law in the foreign countries

– a lease of land; – a contract of sale; – deed of gift. The most detailed description of the loan agreement. The law es-tablishes the inviolability and continuity of debt obligations. If the debtor is unable to pay the debt on time, he was obliged to work with. Admission and receiving debt done by force, trickery, coercion. In the case of death of the debtor duty would go to his son and other relatives of the deceased. As a consequence of the free labor of employees (karma cars) Manu pay much attention to a contract of employment of workforce. Terms of the contract depended on employers. Performance of the contract is not attracted a fine, and the perpetrators have not been paid their salaries. If the failure was caused by the work of the disease and to hire, recovery, do the work, he could get salary. Land lease agreement was developed in ancient India, due to penetration of the community of property differentiation process – the land had to rent if a commune became a bankrupt. Contract of sale in accordance with the Laws of Manu was per-formed in the presence of witnesses and considered valid only in this case. As the seller could act only owner of the thing. The law establishes certain requirements for the subject matter and thief to sell the goods of poor quality, lack of by weight. The deal can be terminated without any valid rank, but no later than within 10 days after the sale. In the Laws of Manu regarded as obligations of the injury. Property damage, damage caused by the movement of the cart in the city was considered as a basis for the emergence of such a commitment. The offender had to make amends and to pay a fine to the king. 4. In ancient India, marriage is a property transaction, as a result of which the husband bought his wife, and she became his ownership. Head of the family had a husband. Manu required the wife to honor her husband as a god, even if it is «devoid of virtue». Woman completely depended on her husband and sons – as a child she was supposed to be under the authority of the father, in his youth – her husband, her husband’s death – under power of sons. For infidelity, she was subjected to severe punishment including the death penalty. According to the Manu device wife should belong to the same varna, as a husband. In excep-tional cases, the men were allowed to marry women from the lower castes, but a woman from a higher caste to marry a man of

CHAPTER 3. State and law in Ancient India

lower caste was forbidden. As head of the family, the father ran over her property, even though all property of the family was considered common. Old Indian law did not know inheritance by will only hereditary succession: the property after the death of parents or sons, or had the older son, who became a guardian to the remaining in the house younger brothers. Daughters from inheriting eliminated, but the brothers were to provide them with a dowry for one quarter of its share. 5. Manu’s known concepts of criminal law: – forms of guilt; – recurrence; – complicity; – seriousness of the offense, depending on the membership of the victim and the perpetrator of a particular varna. This indicates a relatively high level of development. The existence at the time survivals of the past suggests the preservation of the following concepts: – The principle of retaliation; – ordeal (the court of the gods); – The principle of community responsibility for a crime committed on its territory, if the offender is unknown. Crimes, called the law of Manu: – State offense; – crimes against property; – offenses against the person; – crimes encroaching on family relationships. In the first place there are public – service of the king’s enemies, failure of the city wall, the opening of the enemy gates. Manu detail the crimes against property and against the person. Among property crimes laws distinguish theft, giving her graduation, as the secret theft of property from theft, done in the presence of the victim and the violence to him, was a thief caught in the act or not, the theft occurred during the day or at night. It was punished as harboring a thief and failure to report seen by the theft. To violence committed against the person, Manu applies killings and injuries. Rapist considered the worst villain than the mockers, the thief and hit with a stick. Manu known as the concept of self-defense, murder, of perfect in protecting themselves, protecting the sacrificial gifts, protect women and wives by Brahmins, not punished. Crimes encro-aching on family relationships,

27

28

History of state and law in the foreign countries

the law is considered adultery, an assault on a woman’s honor. There were many kinds of punishments, including: – The death penalty in different versions (planted on a stake, burning on a bed or a fire, drowning, persecution dogs, etc.); – for Brahmin equates to death shaving head; – mutilation punishment (cutting off fingers, hands and feet); – fines; – expulsion; – imprisonment. 6. Differences in the conduct of the criminal and civil cases were not, and the process was adversarial. To entertain claims Manu called eighteen rotation laws, including foreclosures, mortgage, sale of another, the violation of the agreement. Supreme Court is done by a king and Brahmins. Divisions of the Court of administration existed. Cases were dealt with in the same order of varnas. Laws in detail used the evidence so far, which is the main source of evidence. The value of the testimony of the witness consistent membership of a particular varna. As a witness could not been interested persons and women. In the absence of witnesses as evidence used horde of various kinds: a trial by fire, scales, water, etc. The system of the Laws of Manu Section 1. The doctrine of the origin of the universe, human society, faith, justification of the dominant position of the Brahmins Section 2 of the fundamental rights of human life in the period of apprenticeship Sections 3-5 basic rules of everyday life in the light of the religious and moral precepts; recommendations for the marriage and forms of marriage. Section 6 of the basic religious and moral rules of life of hermits Section 7 is of the divine origin of royal power, and the rules of good governance by the state. Section 8 is mostly about proceedings of Obligations Act, property rights, criminal law. Section 9 is mostly about family law and inheritance. Section 10 is mainly the offspring of marriages between members of different castes; terms of the acquisition of property.

CHAPTER 3. State and law in Ancient India

Section 11 Most of repentance for the remission of sins. Section 12 In general description of posthumous reward for bad deeds in this life. Questions for the self-control: 1. Please, characterize the Harappa civilization. 2. What means vedic period? 3. Please, characterize the Magadh-Mauriu era. 4. What means varnas? 5. Please, characterize the Laws of Manu. Task for srs: Make the table of the structure of the Laws of Manu.

29

CHAPTER 4

State and law Ancient China

1. General. 2. Social system. 3. And government. 4. The fall of the state Shang (Yin). 5. State Zhou. 6. State of Qin. 7. State Han. 8. Law of Ancient China.

1. The history of ancient China can be divided into four periods, each of which is associated with the reign of a certain dynasty: – The realm of the Shang (Yin) – from the XVIII century BC to XII BC; – Zhou kingdom – the XII century. BC to 221 BC; – The kingdom of Qin – 221 BC to 207 BC; – Han kingdom – from 206 BC to 220 AD. A characteristic feature of the formation of the state in China is that the transition from primitive society to a class society was activated subjugation of one people by another. Since the bodies of primitive society were not designed to control the conquered people was a special state of governmental apparatus. 2. In the reign of the Shang Dynasty, more recently called Yin, society and the state was slave. Slaves were owned by private individuals as well as the state. Yin priestly ruling class was aware secular aristocracy and nobility subject tribes. Social position of secular aristocracy determined estates at slaves, proximity to the king, the position held.

CHAPTER 4. State and law Ancient China

The titles assigned also give the portion of privileges. Most of the population was freemen. Land was considered state property and belonged to king. All the lands were divided into two categories: the social field, which is processed together as a community. Entire crop did headman of the community and eventually was sent to the king. Private land that was in the individual use of the family wasn’t however, the property of their respective holders. In private property were slaves, houses, tools. Slaves could not have no family, no property. The main sources of slavery were: – capture of prisoners of war; – sale into slavery for debt; – slavery for certain crimes; – obtaining slaves from the subject tribes as tribute. 3. In the state of the Shang (Yin), the political system at an early stage retains the features of tribal military democracy. In the future, there is a shift of all power to the king – wang. The elders of the tribal chiefs are the sole ruler. Among subjects strengthens the idea of ​​them as «sons of heaven» that received power at the will of the divine powers. The largest slaveholder, the supreme military leader, the supreme judge and high priest was the king. He also headed the state apparatus. Top positions and appointed king of his close relatives. Smaller positions – professional officials: scribes, tax collectors, judges, etc. In ancient China there was a division official in three main categories: senior civil servants, military officers, advisors, diviners. 4. In the XII century BC in the state of the Shang (Yin), aggravated domestic contradiction. At the same time strengthening its power and expanding ownership of mechou tribe ruled by the Yin Vans. Under the leadership of the tribe united a number of tribes to fight against the Yin state. In 1076 BC tribes of Zhou Yin defeated army. Shan States fell, and were replaced by the kingdom of Zhou. 5. State Zhou 1. General. 2. Western Zhou period. 3. Eastern Zhou period. 4. Warring States Period. 1. The reign in ancient China, the Zhou Dynasty (from the XII century. BC to 221 BC) is divided into three main periods: – Western Zhou period – 1122-742 years. BC; – Eastern Zhou period – 770-403 years. BC;

31

32

History of state and law in the foreign countries

– Period of Warring States («the seven warring kingdoms») – 403221 years BC 2. During the Western Zhou (1122 – 742 years BC) enhances slave state complicated by its structure. Society is characterized by a higher level of development of productive forces, increasing the number of slaves, the development of large estates. Supreme power belonged to the hereditary king (wang), but the central state during the Zhou period has been established. Wang directly managed only metropolitan area, and rest of the country was divided into principalities, ruled by dukes. The Principality divided into smaller administrative units, formed on the basis of the old tribal divisions. Lower administrative unit was the village community. The state apparatus, which was led by the highest officials (xiang), consisted of close personal servants – wang and trusted servants. Xiang was the head of administration and closest aide Wang for running the country. In the kingdom of Zhou there existed palace control system: the palace servants were simultaneously officials, including a large number of of-ficials with diverse expertise. Policymakers (dafu) were divided into three classes – senior, middle and junior. At the top of the social ladder was a slave-owning aristocracy, which consisted of hereditary Zhou and military elite, and partly survived the conquest of the Yin aristocracy. In this period there was a rapid development of large estates, in a tendency to turn possession into private land ownership. Formally, the owner of the land was considered a king, one to the slave-owning aris-tocracy to freely dispose of their possessions. Over time, the right of the large slaveholders to land turned into a land title. Communal land in the Western Zhou period continued playing prominent role. Position of farmers (nunfu) was generally hard. Many went bankrupt and moved into the category of landless people. The number of slaves was replenished at this time due to: – prisoners of war; – won the civilian population; – state criminals. Zhou army in the kingdom was constant only in part, being made up of small groups of personnel and militia, who joins him in the war. In the middle of the VIII century BC Western Zhou had collapsed due to the weakening of central power relations dependent principalities and rulers, and unsuccessful wars against nomads. When the country was divided into a number of independent states, the Zhou kings became rulers of a small ownership – Eastern Zhou.

CHAPTER 4. State and law Ancient China

3. Economic and political life of the country during the Eastern Zhou (770-403 years BC) is characterized by the following changes: development of industry and trade, which has led to an increase in the role of the coupe-making in public life; the decline of the hereditary aristocracy of land tenure. Its land whether moving towards the serving elite. Significant land holdings are concentrated in the hands of military commanders, servants, merchants. Strengthening private property boun-ded slave to the ground. 4. In the period of the «Warring States» – Warring States (403221 years BC) there continued development of large estates. It is accompanied by the destruction of the old type of tenure – communal. With the introduction of a land tax instead of processing communal fields farmers were obliged to pay tax on their land for communal land ownership in one of the first attacks. 6. State of Qin 1. General. 2. Shang Yang reforms. 3. And government. 4. Judicial system. 5. Army. 1. The third period in the history of ancient China – the kingdom of Qin from 221 BC to 207 BC Since mid-VIII BC, after the destruction of the monarchy of the Western Zhou, the country was divided into many independent states. They were engaged in a war of conquest, in which the weaker Member States were absorbed by stronger. Qin kingdom emerged around the X century. BC Initially, it is was under the Zhou Dynasty, and then, in the Warring States period, was among seven powerful «Warring States». In the III BC it subdued the rest of China. 2. In 359-348 years BC statesman, the chief advisor of Emperor Shang Yang held a series of reforms that have contributed to the gain central government. Shang Yang was one of the founders of the philosophical school legists, placed above all state law. Under him, the strict observance of the laws considered the primary condition for order in the country. During this period, the emperor approved mandatory for all laws, introduced a single written characters, ordered weights and measures. As a result of reforms of Shang Yang: – legitimizes the right of private ownership of land and was official but allowed the free sale and purchase of land, which was a blow to tenure;

33

34

History of state and law in the foreign countries

– is enforced fragmentation of large patriarchal families, which also accelerated the disintegration of the community; – in order to centralize the entire territory of the state was divided into administrative districts – the new administrative division was province on the territorial principle – Taxes are levied based on the amount of cultivated land; – army was reorganized and rearmed. 3. In the centralized Qin Empire was named head of state Emperor – Huang. In his hands was concentrated all the fullness of legislative, executive and judicial power. Had an extensive state apparatus, headed by two ministers – the left and right chensyans. Their deputies were secretaries. Other senior government officials were the chief of the palace guards, the officer in charge of the cult of the ancestors of the Emperor, the official in charge of external relations. Large role in the state apparatus played imperial advisers. When the kingdom of Qin subdued other ancient Chinese kingdoms, Shang Yang reforms were extended to the whole country. There were made the following changes: – Administrative. The territory is divided into 36 regions, which are in turn divided into districts, counties – the parish and parish – by Ting, is the lowest administrative unit; – agricultural. – financial – military. Each area was headed by two stewards – representatives of the military and civil authorities, to appoint and remove the emperor. There was firmly established common law, punishing the slightest tread, directing the activities of the imperial officials. Former aristocratic titles were destroyed, the criterion of nobility were money and services to the state. 4. In the Qin empire there was available a special judicial authority, indicating the allocation of judicial functions. As the highest court of the Emperor appeared which could directly disassemble the legal proceedings. Department of Justice was to monitor the application of criminal law. All cases of the most serious crimes passed through his hands, especially cases related to abuse of power by officials. At the head of this department was tinvei. Provincial judge was also the chief of prisons in the area. 5. Army played a huge role in ancient China, which defines a part of war and peasant uprisings. Gradually built up a standing army, which

CHAPTER 4. State and law Ancient China

was at the content of the treasury. Initially, it consisted of the emperor and the bodyguards guarding the capital and having police functions. In the Qin empire existed conscription. The army consisted of men between 23 and 56 years old, who had to undergo a year-long training, held garrison duty during the year and month of the year to serve in the militia in the community. Without specifying the terms of service for the protection of state borders sent delinquent officials, roving traders, as well as those who lost their freedom for debt. 7. State Han 1. General. 2. Liu Bon’s board. 3. Wang Mang’s reign. 4. Eastern Han. 5. The fall of the Han Empire. 1. Because of the social contradictions in the Qin empire constantly uprisings, the most powerful of which are 207-206 years BC killing Qin monarchy. Founder of a new dynasty – Han – became one of the leaders of the rebellion, the village head Liu Bang. Han Dynasty imperial rule from 206 BC to 220 AD This period can be divided into the following: – Western or Early (over), Han (206 BC – 8 AD); – reign of Wang Mang (9-23 years BC) and the reign of Liu Xuan, or Gen-shi (23-25 years. BC); – East, or later (younger) Han Dynasty (25-220 years. BC). 2. Liu Bang, who proclaimed himself Emperor Kao-tsu, at the beginning of his reign, made a number of concessions to farmers, lowering taxes and eliminating the harsh laws of the Qin Dynasty. But his reforms did not halt the rise of slavery and large private estates. It is a new moment in agrarian relations of Western Han was that there were land tenure «strong houses», a kind of fortified manor with its own armed guards. Slavery, combined with the feudal way of life, reached its development, which was the cause, intensify social contradictions. Leaving the old structure of the central and local state apparatus, the royal power has concentrated on centralized country. There have been new territorial-administrative division – 13 large districts, with the number of regions and districts. At the head of the district auditors districts were set – the governors of the emperor in control of the local administration. Areas and counties led three appointed officials from the center: the ruler and his helpers in civil and military affairs. Activities of the local administration were monitored by inspectors from the center.

35

36

History of state and law in the foreign countries

3. In 8 AD throne in a palace coup took Wang Mang. Proclaiming himself Emperor (AD 9), he made another in torture soften reforms class contradictions. Masterminded his reforms were Confucians, who came to the well, mixing Legist. In the area of land ​​ tenure Van Rhee has done the following: – by the ban on the sale of land is abolished private property on it; – all land declared royal; – restore the system of communal land ownership. In the field of slavery: – private slavery abolished – prohibited the purchase and sale of slaves; – the state has received the legal right to own slaves, that is, one hundred slaves, became state. Van Rhee and other reforms were carried out, including cash, introduced new taxes, and established a special control that were adjusted market prices and regulated loans percent. However, this does not lead to stabilization of the political situation, but on1ly to a deepening and sharpening of class contradictions, the destruction of economy. In 18 AD there was a revolt, whose members are called «red-browed». 4. During the fight with the rebels landed aristocracy basis of new dynasty – Late (junior, or Eastern) Han. Leader of «red-browed» was suppressed in the late 27 BC, but only managed to unite the country to 37AD When he returned in 23 AD to the throne, the Han dynasty canceled orders and decrees of Wang Mang. Made some concessions to the peasants partly eased the tax burden. Significant changes were the state apparatus – was created Imperial Council, the highest advisory body to the Emperor and the functions of governing the country was divided between the five departments. The economy began to stabilize. 5. In the second half of the II. n. e. the power of the Eastern Han Dynasty as a result of those powerful peasant uprisings declined. During the fight with the rebels major generals who led various political factions, became independent from the central General Government. This has led to a political crisis and the violation of the economic system of the country. In 220, the unified Han Empire was destroyed – it split into three separate properties, the period of which is called Sango (Three Kingdoms). 8. Law of Ancient China. 1. Ownership. 2. Obligations.

CHAPTER 4. State and law Ancient China

3. Marital and family relationships. 4. Criminal law. 5. Lawsuit. 1. The main objects of property rights in ancient China had land and slaves. Land between Yins – the property of the emperor (Wang), only the right to use land received as gifts, during the Zhou – the transformation of land ownership to private ownership. Qing period – in the middle of I BC in a number of kingdoms to trade land transactions, intensive development of private property landowning through the redistribution of the land fund and transfer it into the hands of the new aristocracy. Slaves during Ying considered state property. While the slaves and was in possession of private individuals, trade does not yet exist. In times of Zhou became possible to exchange and purchase of slaves. In V-III centuries BC there were two categories of slaves: public and private. 2. Ancient Chinese authority to regulate various types of contracts, including: – swap agreement; – a contract of sale; – deed of gift; – a loan agreement; – a lease of land; – hiring. Barter appeared among the first. Sales contract prescribed shall be in writing with the mandatory payment of fees. Widely spread deed of gift: land, slaves, chariots, weapons and other property. Loan agreement, which appeared in the Warring States period, designed the Zhou. He accompanied the delay of payment, security deposit, issuance of written commitments. Appeared usury, debt slavery in V-III centuries BC often entered the land lease contract. 3. In ancient China, a marriage entered into parents. Husband and father in the family had absolute power. The family was large, patriarchal, with the cult of the ancestors, with polygamy. A married woman is completely dependent on the power of her husband, could not have a personal property. She had the right to inherit, but this right was limited. 4. Among the types of crime, known in ancient China, it is possible to single out: – State – the rebellion, conspiracy; – Religious – shamanism, throwing ash into the street;

37

38

History of state and law in the foreign countries

– against persons – murder, assault and battery; – against property – theft, robbery, slaughter another animal; – Military – failure to appear by the deadline to collection, cowardice, etc. In general, the list of them is huge – in the era of Zhou has more than 3000 different crimes. The custom of blood feud arose and developed in pre-state China, with the advent of the government was driven system of corporal punishment and the wide use of the death penalty. The main purpose of punishment during the Qin finally was deterrence. The types of punishments were: – The death penalty in the most diverse forms (roasting on the fire, cutting into small pieces, beheading, burying alive in the ground); – mutilation punishment (cutting off the nose, ears, cutting off arms, legs, eye gouging, castration for men); – penalties, which allowed to buy off the sentence; – imprisonment. Provision was also branded ink on his face, turning women into slaves communities, hermits, caning, lashes, etc. 5. Highest court was the emperor who would immediately dismantle legal proceedings. Judicial functions in the field Executive representatives of the local administration. The state apparatus has numerous officials, among whom there were wanted men fighting the thieves and robbers, prison governors, officers of the court (a person to enforce the judgment). Litigation during the Western Zhou Yin and wore prosecutor-adversarial. Later, this type of process was driven investigations, originally applied only in cases of crimes committed by slaves. Questions for the self-control: 1. Please, give the characteristic of the social system of China. 3. Give the differences between the each period in the history of China. 4. Account the peculiarities of the state Shang (Yin). 5. Give the differences between State Zhou, State of Qin and State Han. Task for srs: Please, give the characteristic of Law of Ancient China.

CHAPTER 5

State and law of Ancient Greece

1. The city-state phase of the history of ancient Greece. 2. Homeric period. 3. Archaic period. 4. Athenian state in the V – IV century BC 5. Characteristic position of Athenian citizens. 6. Position of metecs. 7. Slavery in Athens. 8. Policy of Athens 9. Slave state in Sparta. 10. Law of Ancient Greece.

1. After expansion in the history of primitive communal relations Trees it came the so-called Greek polis stage – is emerging and flourishing policies – city-states. Slave relationship of the classical type replaced primitive culture. Phase of the polls are usually subdivided into three periods: – Homeric period – XI – IX centuries BC; – Archaic period – VIII – VI centuries BC; – classical period – V – IV century. BC Leading role in the history of ancient Greece played two of the policy – Athens and Sparta. 2. Homeric period (XI-IX centuries BC) characterized by the domination of tribal relations. Land is a tribal-own liability; community members have a right to use it. However, there are landless, and the owners of large tracts of land. State apparatus is not exists, is governor of the primitive military democracy. Headed society had a tribal leader –

40

History of state and law in the foreign countries

Basileus, who was the Nations High Commander, the Chief Justice and the High Priest; at first they were elected, then became hereditary. Permanent council of most prominent representatives of the nobility is the council of elders. Significant role played by the National Assembly. By the end of this period, tribal relations expanded, replaced gentile constitution becomes slave. 3. Archaic period (VIII-VI centuries BC) marked the creation of the state of Athens. The Greek legend says that the Athenian polis arose as a result of the legendary Theseus. Free population of the Athenian community, according to the same legend, Theseus was divided into the following social groups: – Eupatridae – tribal aristocracy, owners of large lands; – Geomors – farmers, small landowners, gradually fall into debt bondage to Eupatridae; – Demiurges – artisans. Together with geomores they were demos. Along with slaves and free men there was also an intermediate layer – personally free citizens, but lacking some of the political and economic rights. There also retained the old division of the demos on the phylum, phratries and childbirth. Management of Athens is done by nine elect annually from among the aristocracy Comrade Archons, and Areopagus – the council of elders. With the growth of inequality deepened socio-economic differences and the escalating fighting between tribal aristocracy and demos, we achieve equal rights, redistribution of land, debt cancellation and the cancellation of debt bondage. 4. for the classical period (V-IV centuries BC) is flourishing ancient Greek slave society, polis system. In V. BC Greece defended its independence in the Greco-Persian wars (500-449 years BC). A great contribution to the victory over the Persians brought unification Greek city in the Delphi League. Manage the affairs of the Union was entrusted to a council of representatives from all cities – Union members. Soon this Union occurred as the rule of Athens, so he called the First Delphi League and the factor became the Athenian naval power – Arch. At this time, Athens entered a period of maximum growth. Based on the development of trade, commerce and navigation, in an atmosphere of acute political struggle in the Athens State has established the most advanced at that time the political system of ancient slave democracy. Legislative power belongs to the People’s Assembly, the executive

CHAPTER 5. State and law of Ancient Greece

– the Council of Five Hundred and Master, trials are held in a jury selected from the citizens by lot. During the execution of the state necessary duty was to elect installed compensation from the state treasury. Increased costs were covered by tax – Phoros, which was regularly paid by the allied city. Thus, the welfare of the Athenian citizens depend not only the exploitation of slaves, but also the exploitation of the population of allied cities. In 449 BC was awarded a victory for the Greeks world discontinues Greco-Persian wars. First Delphi League put in front of him a full military task. Second Delphi League was founded in 378 BC to counter the Peloponnesian League, led by Sparta. Peloponnesian Union is a grouping of Greek city, which is dominated by oligarchic order, dominated by aristocracy. Defeated in disastrous for the whole of Greece Peloponnesian War, Athens forever lost its leading role in the country’s history. 5. Full Athenian citizens were those persons whose mother and father were citizens of Athens. Civil full rights occurred at 18 and assumed op-determination rights and obligations. The most important rights of the citizen were: – the right to liberty and independence of the other person; – The right to land on the territory of the city-state; – The right to economic assistance from the State in the event of financial difficulties; – The right to bear arms and serve in the militia; – The right to participate in the affairs of the state; – The right to worship the gods of our fathers and protection; – the right to protection and support of the Athenian law. Free law was honored citizen. For crimes he could be subjected to dishonor the court that is a restricted one. Duties that would fulfill every Athenian citizen, were as follows: – protect their property and to work on the land; – Come to the aid of the policy in extraordinary circumstances; – to protect the policy from the enemy in arms (citizens considered military from 18 to 60 years); – obey the laws and elected authorities; – Take an active part in public life; – honor the gods of our fathers. 6. Between full citizens and slaves existed intermediate layer – metics personally free, but lacking some of the political and economic rights, including:

41

42

History of state and law in the foreign countries

– the rights of citizenship; – the right to acquire property; – The right to marry with the Athens citizens. Metics were foreigners living in Athens. The slave, who became a free man, was equal in status to metic. Slave labor in Athens is widely used in domestic work, agriculture, construction, etc. 7. One of the sources of slavery served as debt bondage, since insolvent debtor liable to the creditor not only his property, but also personal freedom and the freedom of his family members. In 594 BC Athenian sage Solon debt slavery was abolished as a result of so-called «shaking off burdens». Slaves in Athens were divided into slaves, whether owned by private and slaves owned by the state. Slaves of individuals held the position of things, so they could not own property. Of public servants recognized the right to acquire property and dispose of it. 8. Policy of Athens 1. General. 2. People’s Assembly. 3. Council of Five Hundred. 4. Executive authorities. 5. Judiciary. In essence, the Athenian state was the policy of the Organization of free citizens, to protect their interests and obedience of slaves. The form of it represented a democratic republic in which Athenian citizens enjoyed equal-governmental rights and can actively take part in political life. Athenian democracy in the V-IV century BC is a well-conceived, welldesigned political system. Replace of government positions was based on the principles of election, urgency, collegiality, accountability, no hierarchy. The main organs of the Athenian state were: – The National Assembly, the Council of Five Hundred; – College of the strategy; – College of the Archons. Supreme authority was the National Assembly – Ecclesia. The venue of the meeting was the central city area – Agora. The right to participate in the National Assembly had only men reached the age of twenty, full Athenian citizens, regardless of their financial status and occupation. The competence of the National Assembly covered all aspects of life in Athens. Ecclesia pass laws, decide issues of war and peace, elected officials, judges hear the report at the end of authority to decide cases on the food supply, discuss and approve the

CHAPTER 5. State and law of Ancient Greece

budget, oversaw the education of boys. Critical to democracy was the institution of «complaints of illegal» guarding the key existing laws. This protection was carried out using special board for the protection of the laws and the right to file a written or oral complaint against those who violate existing laws. In the National Assembly could address any participant of the meeting, but he was forbidden in his speech repeated offensive to their op-position, and say no to the point. Working body of the National Assembly of the Council of Five Hundred was the (Bulls). Bull member could be a full citizen of Athens, representatives of any segment of the population who has reached the age of thirty. Of those, the Council elected by lot and 50 people from each of the 10 phyla (phylum – territorial unit). Each year, the Board updated as reelection to the citizen was possible just a few years, and only once. Members of Council received a salary. Council of Five Hundred to prepare and discuss all the things that were discussed and a decision of the National Assembly was preliminary conclusion for inclusion in the National Assembly, without concerned people could not rule on a consideration of dew. Council to monitor the implementation of the decisions of the National Assembly, the activities of all officials hear their reports. The entire financial and administrative apparatus of the Athenian state action was under the guidance and direct supervision of the Board of five hundred. Guide daily activities entrusted to Phil – one-tenth of the Council. Its members, lurking, elected from among themselves by lot by the chairman, who became same and chairman of the National Assembly. Upon the expiration of the term of the members, the Council was to give the people the report. The organs of the executive board included strategists and number of Archons. The main functions of the Board are the supreme strategists’ leadership and command of all armed forces of Athens. Board consisted of ten strategists who according to Athenian law enjoy the same rights and have the same duties. But in practice the custom, according to which one of the strategists took the first place, not only in college, but in the whole country. Strategists were selected from among the wealthiest and influential citizens open vote by a show of hands. The competence of the board of archons included religious and family case as well as cases involving morality. Archons board consisted of nine archons and the Registrar elected by lot, one from each phylum. First Archon – Eponym, was considered archon-ruler. The second was the Archon-Basileus, who dealt with

43

44

History of state and law in the foreign countries

priestly functions. The third was a military Archon-polimarh. The remaining six were from the college of judges Fesmofets. All archons had two tests – the Council of Five Hundred and Heliaya. 5. Highest judicial body was Heliaya, which operated under the direc-tion of board Archons. There were 6000 people (600 from each phylum) elected annually by lot from among the archons full citizens at least 30 years. Meetings were held during daylight hours. Therefore, it was named in honor of the god of the sun – Helios. Heliaya sorted out the most important special case of Athenian citizens, government affairs, disputed cases between the allies and all the important affairs of citizens of the Union. In addition to the judicial functions Heliaya also served as in law. Other courts in Athens were a few other count, each of which looked into a specific case: the Areopagus (the court of elders), four board of Efets, court of Dielets, the panel of forty. 9. Slave state in Sparta. 1. The emergence of the state. 2. Social system. 3. Government. 1. Sparta or Lacedaemon, – the Greek polis, the city-state, VI-I centuries BC occupies the southern part of the Peloponnese. Spartan state emerged in IX BC, like Athens, resulting of merging separate tribal communities – Achaean in Laconia, and Dorian, invading with conquest. In the Spartan state had the slave-owning class, preserved remnants of primitive society and organization of society. Adoption of social and political apparatus of Sparta is associated with the name of the legislator Lycurgus. – Spartans; – Hypomeyens; – Perieks; – Helots. 2. Political rights were enjoyed only by Spartans. All land in Sparta was considered the property of the state and was divided to parts (Claire) transferred full citizens – Spartans in hereditary use, without the right of alienation and fragmentation. Land plots transferred to work the land with state to governmental slaves. Since these plots were originally equal, the community Spartans usually called the «community of equals». The laws of Lycurgus were intended to prevent property differentiation. They were directed against luxury Spartans forbidden to engage in trade, to have their personal use gold and silver. Under

CHAPTER 5. State and law of Ancient Greece

these laws Spartans were obliged him with the seventh anniversary to old age, almost entirely given to military affairs. Later Spartans emerged among economic inequality. Citizens, who could not make contributions to the organization of public sissity were excluded from equal numbers into being Hypomeyens – «Lowers». At meals, the participants were all Spartans, discussed various issues of political and social life of Sparta. Perieks – formerly indigenous population of Sparta – were personally free, but had no political rights, although in other respects they have the legal capacity: to acquire pro-perty, make deals, carrying military service. In their hands was focused craftsmanship and trade, as they themselves Spartans in accordance with the laws of Lycurgus were not engaged in economic activity. From the side of state Perieks set supervision by special officials. Representatives of the defeated tribes became public servants – helots. They had their land, working on the site, provided by the State Spartans. However, the helots had their farms and their means of production. Helots to pay tax, equal to 50% of the yield obtained from the ground. Helots also carried military. Their dominance over the helots Spartans maintained through terror. Helots could be dismissed at will by the state. 3. Supreme organ of power in Sparta was considered the People – Appeals – in fact deprived of the legislature, and not to play a significant role in the political life of the country. It was convened to address the officials. The meeting could participate Spartans have reached the age of 30 and have kept their land. The People’s Assembly to address such issues as the election of officers, adoption of the decision in the event of a dispute about throne taking, selecting the head of the military campaign. The People’s Assembly participated in legislative activities, address issues of war and peace, with other states. Meeting did not discuss the laws: they are either taken or is subjected to. All decisions of the National Assembly were under control of Lemma Council of Elders – Gerousia. State led by two kings – Archogets, which served as the military leaders were high priests, to exercise judicial power. But their powers were limited by Gerus, and then count Supreme Audit Institution, elected for native assembly. The College was the organ of the Spartan ephors oligarchy, supervised all aspects of the life of Spartan society. Ephors elevation is due to the nobility feared strengthen royal power. The number of Ephors was five; they are annually elected by the National Assembly from among all citizens. Ephors were single board, and they made decisions by majority vote. The competence of the ephors was convening and leadership Gerousia and the National Assembly, in

45

46

History of state and law in the foreign countries

their charge was the issues of foreign policy and internal administration of the country. In the hands of the ephors was civil jurisdiction. In their report ephors gave only to his successors. Uncontrolled ephors, inability to attract them to justice led to abuse their power. Council of Elders (Gerus) was an authority on inherited tribal organization. Gerus Gerontopsychiatry consisted of 28 members elected for life by the National Assembly from among the most distinguished Spartans who have reached 60 years. Originally Gerus question were under consideration, tabled in the National Assembly, and thus directed its activities. With the increasing power of the ephors, Gerousia decreased value. 10. Law of Ancient Greece. 1. Property relations. 2. Obligation relations. 3. Family and inheritance law. 4. Criminal law. 5. Lawsuit. 1. Among the rights of property ownership and possession are allocated. Private ownership was considered a derivative of the state. Knowledge of the rights owner has not yet happened. The main object of the property is land. Things were divided into «visible» and «invisible». The latter include luxury items and money, i.e. those things which according to ancient Greeks had taken to hide. 2. Obligation relations could arise as a written or speak, and from oral – tort. Athenian right to regulate various types of contracts, including: – a contract of sale; – a contract of employment; – loan agreement; – construction contract; – a loan agreement; – Agreement storage; – agreement of the partnership; – a contract of agency; – consignment. Served as the basis of a contract any agreement of any content, con-tracts are usually concluded in writing. Liabilities in tort arise in the event of any damage to property. Means to ensure the contractual obligations were as follows:

CHAPTER 5. State and law of Ancient Greece

– Deposit; – pledge; – guarantee. In Athens, the first time a new type of contract – mortgage, i.e. mortgage, usually land. 3. In Athens, the marriage was a contract concluded by the head of the family. Marriage was considered mandatory, although celibacy did not result in penalties. Woman in the family is subordinate, free for her husband, was difficult for a wife. Authority of the father of the children was initially very wide, but over time has narrowed. Athens knew right hereditary succession and testamentary. In inheritance, the law existed heirs of the first stage – the sons. The absence of sons led to inherit the deceased father to daughter. If there were no direct heirs, the inherited side relatives. Illegitimate children were not heirs of the father. Testamentary succession recognized, if the testator was of sound mind and not subjected to physical or mental illnesses, as well as if he had no legitimate male children. Had no right to settle on minors, women, adopted son. 4. Crimes known to the Athenian law: – State offense; – offenses against the family; – offenses against the person; – Crimes against property. Distinguish between intentional and negligent offenses, between the instigator and perpetrator of the crime. It was well known concept of self-defense. The purpose of punishment is the infliction of suffering offender. The types of penalties are: – the death penalty; – Sale of a slave; – fine; – confiscation of property; – dishonor, that is disenfranchisement. Punishment for slaves and free it was different. The most famous set of Athenian law was the Criminal Law of Draco 621 BC, were particularly brutal punishment. 5. The trial began after receiving an official complaint, which could apply only full Athenian citizens. The complaint of a woman and a minor head brought to Family, for metik – his prostate, a slave – his master. Then the officer receiving the complaint produced investigation. If by the

47

48

History of state and law in the foreign countries

defendant or the defendant did not receive written objection to the consideration of the case for the existence, the judges proceeded to consideration of the case. All the necessary proof of the case was presented by the parties. Upon completion of the preliminary investigation took place the trial on which the decision was taken by secret ballot. Court decisions and verdicts can be appealed in Heliee. Solution of Helie was peremptory. Questions for the self-control: 1. Characterize the city-state phase of the history of ancient Greece. 2. The peculiarities of Homeric period. 3. Account the differences of Archaic period. 4. Characterize the position of Athenian citizens. 6.The sources of slavery in Athens. Task for srs: Please, give the characteristic of Law of Ancient Greece.

CHAPTER 6

State and law of Ancient Rome

1. Periodization. 2. Social and political system in the imperial period. 3. Reform of Servius Tullius. 4. The Roman Republic. 5. The Roman Empire. 6. Roman law.

1. In the history of the state of Ancient Rome are three periods: king period – 753-510 years BC; the period of the Republic – 50927 years BC; the empire – 27 BC – 476 AD During the opening, the so-called royal period, Rome was consequently ruled by seven kings: 1. Romulus; 2. Numa Pompilius; 3. Tullus Hostilius; 4. Ankh Marcius; 5. Tarquinius Priscus; 6. Servius Tullius; 7. Tarquin the Proud. 2. The foundation of the city of Rome (753 BC) is characterized by the process of decomposition of primitive system from the tribes who settled near the river Tiber. Unification through war three tribes (the ancient Latins, Sabines and Etruscans) led to the formation of the community in Rome. The economic basis of the early Roman community was agri-culture.

50

History of state and law in the foreign countries

All full population of Rome – Roman people, Populus Romanus – divided into three tribes. The tribes were divided into clans – Gens (a hundred in each tribe, all three hundred), the Curia (the union of the ten genera, there have been thirty) and tribes (the union of ten curiae, all three). Initially, on certain days, the Curia, the tribes, and then the entire alliance of tribes converged on the meeting to adjudicate the dispute probate and litigation in general, was sentenced to death penalty. The elders were giving birth to the Senate – the council of elders, composed, according to legend, Romulus three hundred senators. The competence of the Senate was preliminary discussion of the cases to be submitted to the decision of the National Assembly, as well as maintaining current business management Rome. Gradually, it became a major source of power. The head of the Roman community, its civil ruler and supreme military commander was a river – the king. He was elected to the comitia (public meetings held by curiae) participating to which could only patricians, members of the oldest Roman curia. Initially to full population includes only them. Each of the patricians had the following rights: – the law to allotment, fixed for him and his family (participating in the common ownership of the land); – the right to inherit this allotment and tribal property in general; – the right to receive the kind of assistance and protection; – the right to participate in religious ceremonies and festivals, etc. Another part of the population, which stood outside the tribal orga-nization, called plebeians. The plebeians were personally free, carrying military service, along with the patricians, but received no equal share with them the spoils of war and had to be content only sops. With pro-perty differentiation complicated social structure of community. In sorts allocated separate wealthy aristocratic family. Come out from among them generals, town magistrates. Gradually the patricians were the dominant class, who owned large plots of land and slaves, and acquired customers. Clients – impoverished relatives, or disempowered residents – being personally free, but limited to the right, were under the protection of cartridges from the patricians, and get whether they land holdings, as well as their family name, for which he had carry in their favor different duties, primarily military. Plebeians this time can be identified with the small and medium-sized landowners, as well as artisans. Over time, the increased number of the plebs, and he turned them in the political and economic power to resist patricians. The political

CHAPTER 6. State and law of Ancient Rome

history of Rome centuries marked by the struggle for equality of plebeians their rights with the patricians. 3. Tradition attributes the king Servius Tullius (V BC) re-form of social organization, as a result of which the plebeians were introduced into the populus romanus (Roman people). It was based on differences in wealth and territorial division, which increased the erosion of kinship, which lay at the heart of the primitive organization. The first part of the reform – the division of the whole free population of Rome for six categories of property and hundreds – centurion. The basis of the division was put size plot of land, owned by a person. Later, with the advent of money was put monetary value of the property, the aces. It has full allotment included in the first category, three quarters put – in the second, etc. In addition, the first class was allocated a special group of people – riders, and the landless – the proletariat – unite for the sixth time in row. Total number of centuries equal 193. Of these, 18 riders and 80 centuries first category accounted for more than half of all pennies. As each century had one vote, the vote of the rich and the richest centuries were the majority – 98 votes out of 193. Centuries are not only military but also political power. After the reforms, along with curies public meetings were convened by People’s Assembly century. The decision by the na-tional assembly centurion received the force of law, and it is pushed to the second meeting of the role of the national assembly for the curia. The second part of the reform was the division of the free population of the territorial principle. In Rome, was created four urban and 17 rural territorial districts, for which retained the old name of the tribes – the tribe. Three united and patricians and plebeians, who lived in them, they submitted to the village elder, whose responsibilities included the collection of taxes. Later on territorial tribes have also convened their meetings in which each tribe had one vote. Reform of Servius Tullius completed the basics of breaking the tribal system. Incorporating the plebs of the Roman people by allowing them to participate in governing has contributed to the consolidation of free, provided their domination over slaves. 4. The Roman Republic. 1. General Information. 2. Social system. 3. And government.

51

52

History of state and law in the foreign countries

4. Army. 5. The fall of the Republic. 1. Republican form of government was established in ancient Rome in 509, after the expulsion of Tarquin the Proud Rex. Republican period, divided into periods of early republican and the late republic. During this period, intensive development production, leading to significant social changes. In the Roman Republic combined aristocratic and democratic features that maintained privileged elite wealthy aristocratic slaveholders. 2. Full legal capacity in Rome had only person having by three statuses: – freedom; – citizenship; – families. On the status of freedom of the entire population of Rome was divided into free and slave. Available in Rome fell into two social class groups: – haves top slave owners (landowners, merchants); – small-scale producers (farmers and artisans), who formed the majo-rity of society. The latter adjoined the urban poor. Slaves were public and private. During the republic they rotate in the main exploited class. The main source of slavery was a military prisoner, and by the end of the republican period semi self-selling spread into slavery. Regardless of the place of the slave in the production, it occupies the property of the owner and was seen as part of his estate. The power of the master over the slave was unlimited. Citizenship status on the free population of Rome was divided by civil and foreigners (Peregrine). Freedmen also referred to the citizens, but they were the former owners and customers were bounded in rights. Full legal capacity can only be freeborn Roman citizens. By Peregrine included free inhabitants of the provinces – Rome conquered count-ries outside Italy, as well as free citizens of foreign countries. To protect their rights, they should have been patrons in respects of which are located in the position who were not different from those of clients. Carrying tax obligations was overheating. As the property differentiation, the role of wealth in determining the position of a Roman citizen increased. At the end of III BC there are privileged classes – nobles and knights. Upper class – class nobles – was formed by merging the most noble and wealthy patrician birth capped plebs.

CHAPTER 6. State and law of Ancient Rome

Economic base was large landed nobility. Class riders formed from trade and financial elite and their landowners. Family status means that the full political and civil rights, the ability to use only the head of the Roman families – the householder. Rest of the family is considered to be under the power of household lords. Full could only householder, free and free-born Roman citizen. In public law full legal means allowing the teaching in the national assembly and to hold public office, in private law – permission to join the Roman marriage and engage in property legal. 3. Supreme state bodies of the Roman Republic were the popular assemblies, the Senate and the Judiciary. There are three types of the People: – Centurial; – Tribute; – Curia. They played a major role centurial meeting, which ensured the adoption power prevailing aristocratic and wealthy circles of slave owners. By the middle of the III BC with the expansion of the limits of state and increase the number of free, the structure of the meeting: each of the five digits of the propertied citizens was put equal to the amount of centuries – at 70, and the total number of centuries been brought to 373. The competence of the meeting is to take centurial new law, the election of senior officials of the Republic (the consuls, ready censors), declaration of war, and deal with complaints on convictions to death. Tribute meeting depending on the composition of the inhabitants of the tribes were divided into plebeian and patrician-plebeian. Their competence was limited. They elected the lower officials and consider complaints against judgments for the recovery of the fine. Plebeian assembly elected plebeian tribune, and in III BC have the right to pass laws, which led to an increase in their knowledge in the political life of Rome. Curia Assembly lost its importance. They only formally administered office of persons elected other appointments, and were later replaced by meeting representatives of thirty Curia members – Lictors. Really important in the state mechanism was republic senate. Every five years, the censors (special entity distributes century citizens and tribes) with list of senators of representatives of rich and noble families, that is, the Senators were not elected but appointed, making the Senate bodies, independent of the will of most free citizens. While the Senate was formally an advisory body, they had following features:

53

54

History of state and law in the foreign countries

– Legislative – he controlled the legislative activity of valuable curia and plebeian assembly, claiming their decision and subsequences previously considering bills; – Financial – at the disposal of the Senate was the treasury of the state, they were set taxes and determine the necessary financial costs; – Public Safety, accomplishment and religious cult, – foreign policy – if centurial assembly declares war, the peace treaty, and a treaty of alliance confirmed by the Senate. He also allowed the recruitment and distributed among the legions of the army commanders. Public officers were called Magistrates. Magistrates were divided into: – ordinary (common), which included the post of the consuls, praetors, censors, and others; – extraordinary (extraordinary), which were created in an emergency – a heavy war, insurrection of slaves, serious internal unrest. In such circumstances, the Senate could take a decision on the esta-blishment of the dictatorship. The dictator was appointed on the proposal of the Senate one of the consuls. He had unlimited power, which subordinates all people. Dictatorship period was not to exceed six months. Magistrates were replaced by the following principles: – the election – all magistrates, except a dictator or elected centurial meetings; – urgency – one year (except for the dictator); – collegiality; – free of charge; – responsibility. 4. Army – Roman legion, played a very important role as the foreign policy of this state is characterized by almost continuous curve. Even in the period of imperial general assembly of the Roman people, and the army was congregation showcase military might of Rome, and it was based on the gross units – curia comitia. Military service was required to carry by all the citizens from 18 to 60 years, as patricians and plebeians. However, instead of the cartridge to perform military duties could client. In the Republican period, when the Roman people were divided on property level, each level has exhibited a number of armed men, of which formed hundreds – centurion. Riders were cavalry centurion,

CHAPTER 6. State and law of Ancient Rome

first, second and third rows of – Centuries heavy infantry, and the fourth and fifth rows – lightly armed infantry. Proletarians exposed one unarmed century. They were handed over command of the army by the Senate one of the two consuls. In 107 BC Consul Gaius Marius had military reform, after which the army has become a permanent professional body. It was limited to military service being Romans, to recruit volunteers who received weapons and a salary from the state. Legionnaires were awarded part of the spoils of war, and veterans – allotments from the confiscated and vacant lands. To strengthen military discipline in the army was put decimation – the punishment of the guilty one in ten troops. The army became a political tool, a mercenary force, maintained at the expense of the conquered peoples. 5. The development of slave society led to the aggravation of his class and social contradictions. The most important social phenomenon in the economic and political life of ancient Rome in the II BC crisis should be considered the organization of the polls, when the old republic institutions, adapted to the needs of a small Roman community, were in a new environment is not enough effective. Fall of Roman Republic marked by the following striking political events: – slave rebellion – two uprisings in Sicily (138 and 104-99 BC) and the revolt led by Spartacus (74-70 BC); – the fight between the small and large land ownership, broad-revolutionary movement of rural plebs, which almost led to a civil war and of Gracchus brothers, who tried to deny the agrarian reform (20’s – 30’s. II BC); – Social War (91-88 years BC); the proletariat rebellion against the authority of Rome, resulting in an era of dictatorships (first Sulla, and then Caesar). 5. The Roman Empire. 1. Periodization. 2. Political and social system in the period of the Principate. 3. State system during dominative. 4. The collapse of the Roman Empire. 1. Period of the Roman Empire divided into: – the period of the Principate (27 BC-193 AD); – the crisis period (193-284 years BC); – dominative period (284-476 years BC). 2. Principality – a form of government established by Julius Caesar, and no final set his successor Octavian Augustus in 27 BC Principate

55

56

History of state and law in the foreign countries

retains visibility of a republican form of government, and almost all the institutions of the republic: public meetings are convened, the Senate sits, still elected consuls, praetors and people WIDE platform. But all this is just a cover of post-Republican state’s endowment structure. Actually Principate was a monarchy, because the preservation of the old republican institutions power was concentrated in the hands of one person – the first senator, Princeps. The transition of governance has resulted in Princeps giving him the highest authority, the election of the most important positions; they create a separate bureaucracy and command of all the armies. Emperor had in his hands all the major powers of the republican magistrates: dictator, consul, praetor, tribune of the people. Senate rules were merely honorary, and its powers – limited. Bills submitted for ap-proval in the Senate, came from the princes and their adoption ensure their credibility. After principate the generally accepted rule is: «All that princeps decided has the force of law». People’s Assembly, the chief authority of the old republic, declined. Ordinary phenomena are bribery, dispersal of assemblies, and violence against their members. In the era of the Principate, the process of transformation of the state from an organ of the Roman aristocracy in the body of the whole class of slaveholders happened. Top of the slave-owning class were two classes: – class nobles, which was formed in III-II centuries BC of the pat-ricianplebeian local nobility. In the Roman Empire nobles were dominant both in society and in the state. The economic foundation of nobility was huge land possession of processed slaves and dependent peasants. Under the emperor Augustus (63 BC-14 AD) turned the nobility in senatorial class, fed by officials, nominated by the public service; – class riders formed from the trade and financial elite and their landowners. From among them, there were senior officials and officers. Decurions, consisting of medium landowners, implemented urban management of empire. Due to continuous looting peasants from the estates, as well as because of reduced inflow of slaves, free peasants beginning to emerge in the colonies – tenants, sharecroppers. Columns become people dependent on landowners who replace them and less power, and imperial administration, and they forever were attached to the ground and lose their ability to escape. At the lowest rung of the

CHAPTER 6. State and law of Ancient Rome

social ladder were the slaves. Economic situation is indicative of the disadvantages of slave labor because of their lack of interest in the outcome. Realizing this, the slave-owners began to give slaves land plots for which the owner should pay a share of the product. Because the rest was interest peasant, he sought to increase it by increasing the overall yield. Army in the period of the Roman Empire becomes permanent and hired. The life of a soldier was determined in 30 years. For service they received salary at retirement – a significant land. The army was completed from the senatorial and equestrian classes. The ordinary soldier could not rise above the post of commander of hundreds – centurion. 3. From 193 to 284 years AD in the Roman Empire was a period of crisis, the so-called «crisis of the third century». It was the unrest of peasants, soldiers, capturing the province governors, invasions of neighboring tribes. There came the decline of agriculture, crafts and trade. Relations with Senate strained. The wide distribution of Roman citizenship was in 212 AD, when Emperor Caracalla granted the rights of a Roman citizen to entire free population of the Roman Empire. Under Diocletian (284-305 years) during dominative, Rome finally became a monarchical state. The emperor was knowledge of the absolute and divine, the emperor – the sovereign and state (dominus, hence – Dominat). Old republican institutions disappear. Management of Empire concentrated in the hands of several major departments. Directing carry dignitaries direct subordinates under the Emperor. The special position of these agencies: – State Council of the Emperor; – the financial institution; – War Department. Officials are allocated in a special class: they are in uniform; they endowed privileges, when the service they are assigned pensions, etc. After the reforms undertaken by Diocletian and Constantine I, the empire was divided into four parts (prefectures), consisting of 12 dioceses. Civil authority governors had been separated from the military. New tax was natural land-tax and duties. 4. When the sons of Emperor Theodosius I in 395, there was a division of the Roman Empire:

57

58

History of state and law in the foreign countries

– the Western Roman Empire with its capital in Rome ceased existence in 476 AD, when the head of the German mercenary Odoacer deposed, and Emperor Romulus Augustulus took his place; – the Eastern Roman Empire with its capital in Constantinople, existing another 1,000 years under the name of Byzantium. 6. Roman law. 1. General Information. 2. The laws of the twelve tables. 3. Ownership. 4. Contractual right. 5. Family Law. 6. Inheritance law. 7. Criminal law. 8. Lawsuit. 1. Roman law reflected and perpetuated existing slaves in Roman society socio-economic and political lives. In its development, it has pas-sed the following steps: – civilian right; – pretor law; – the right to the whole people; – proper Roman law, which, in turn, is divided into sub-private (law, which applies «to the position of the Roman state» – Domitius Ulpian, the famous Roman jurist) and private («to the benefit of individuals»). 2. At the source of the royal period of Roman law and customs were few laws. It was characterized by the influence of community relations, primitiveness of the major institutions, strict formalism (the slightest flaw in the form of pleadings led to the loss of the case) and applied only to native citizens of Rome – quirits, that’s why it was called quirit or civilian, right. The most important monument of the rights of this era was the laws of twelve tables, which are created according to tradition in the mid V BC. Name refers to the fact that they were written on wooden boards on display for all to see on the main square of Rome – the Forum. Everyone living in the city and entering it had to familiarize with the law. It was at that time in Rome there was the legal principle of «no one can explain away ignorance of the law». The laws of the Twelve Tables contained provisions that regulate the sphere of family and inheritance relationships, and norms with respect to financial operations, a criminal offense. Tightly constrained traditions

CHAPTER 6. State and law of Ancient Rome

were the right IV-III centuries. BC has adjusted the new source of law – pretor laws showing the new relationship generated transition from ancient forms of sales and loans to more complex relations brought about by increased commodity production, commodity exchange, banking, etc. 3. For Property Relations Law of the Twelve Tables era is characteristic wide distribution of private property, including land. Roman lawyers for the property is defined as complete and absolute right to own, use and dispose of things with the restrictions which are established by the contract or law. Since the days of the Roman Law of the Twelve Tables right to subdivide ownership of the two types: – The first type includes the land, draft animals, slaves, buildings and structures. For the first category of alienation, things required formalities, which were called emancipations. In this case, for the transaction required the presence of witnesses, uttering verbal lan-guage and set of oaths and the like; – second – all other things that are passed from one owner to another through non-formal transfer on the terms stipulated in the contract – the so-called tradition. One form of restrictions on the right of property is an easement –the right thing to someone else. Easements divided into proprietary (when one enters the owner the right to their property in favor of another) and personal (when given the right to use someone else’s thing with preservation of the thing itself.) 4. For the validity of the contract according to Roman law should: – agreement of the parties, which requires, and it should not be generated violence or deceit; – to comply with the law (the law). All contracts of Roman law is divided into four groups: – verbal agreements; – literal; – real; – consensual. A verbal agreement was the earliest type of contract, verbal commitments, from which during the twelve tables Laws make transactions of various kinds – the sale, exchange, loan, etc. In fact, it needed saying «give», and «do it». The verbal commitment is established by means stipulations (religious vows). Literal contracts – written commitments – there were large enough and distribution over time.

59

60

History of state and law in the foreign countries

Real contracts allocated by the Roman jurists in a special group, characterized by the fact that responsibility for implementation and the related liability is incurred by the real deal from the moment the agreement, and on the transfer of goods. These contracts included: – contracts of storage; – loan agreements – such agreements, which are subject to fungible, money, wine, grain, that is, all things are replaceable; – the loan agreement to which Roman law tied things is individualspecific, essential in principle: refundable but that was given as a loan. A consensual contract liability of the parties does not arise when transferring things, and immediately after the conclusion of a written or oral agreement. These treaties include, for example, a contract of sale, and the contract of employment. The responsibility for the failure or improper performance of the Agreement assigned to the perpetrator. Thus, in the early days of Rome permitted self-mortgage. Guarantee the performance of the contract the person’s own freedom and life and if not, could get into debt slavery. 5. In ancient Rome were three known forms of marriage: – marriage, performed in the form of a sacred oath and gave his wife under the power of her husband; – marriage by buying the bride also issued under the authority of her husband’s wife; – marriage of blue manna – no power of her husband. In the age of twelve tables Laws of family law were based on absolute head of the family – father, paterfamilias. Dominant form of marriage in the empire is a marriage without the husband power – Sine manna. Mandatory condition for a marital relation admits freely agreed spouses – groom and the bride. Divorce was also free – so much so that the Emperor Augustus tried to legally restrict the right of divorce, set the age of consent (25 to 60 for men, 20 to 50 years for women) and a tax on celibacy. However, this law is not observed. For divorce in marriage without her husband’s power enough to leave his wife for three days. Such a right was given once a year by any married Roman. Taking back home extended the marriage for a year. The general rule was the separateness of marital property. Costs of the Co-life husband were carrying, but he had the right to dispose of returns for the property of his wife. Upon the termination of a marriage by the fault of the husband dowry returned to his wife. Power of the head of the family of the children also gradually weakened: the killing of children was a crime, even if the sons of his

CHAPTER 6. State and law of Ancient Rome

father’s life could be given special property has been simplified procedure for illegitimate children, etc. 6. Under the rules of inheritance of Roman law: – first recruited children to inherit; – if they were not – the grandchildren, the heirs of the second stage; – third, inherited the deceased brothers, his uncles; – if they were not, the praetor provided inheritance rights heirstone of the fourth stage – all blood relatives of the deceased up to the sixth generation. The nearest degree of relationship precluded fol-lowed. Feature of Roman law are rules limiting the free testamentary dispositions. They introduced the principle of compulsory share of inheritance has been preserved to the present day: the closest relatives of the deceased if it bypassed the inheritance, was entitled to a parity part of the property, which he would have received in the absence of a will. The will itself be compiled in written form and certifying witnesses. 7. Criminal law consists of many laws, including the laws of the twelve tables of the decrees of the People and the Senate, and the laws issued at the initiative of the dictators and emperors. The types of crimes in the Rome Statute include among others: – offenses directly affecting the interests of the state of Rome, – assignment of government property and theft of governmental funds, bribery, forgery, counterfeiting, participation in illegal gatherings and associations, speculation in grain and other products, the non-payment of taxes, etc.; – religious crimes, the number of which has increased significantly after official recognition of Christianity; – military crimes – treason in battle, desertion, loss of arms, the commander of disobedience and the like; – offences relating to the field of family and morality – a mixture of blood, adultery, polygamy, concubine with unmarried woman, sodomy, etc.; – offences against the person; – crimes against property. Punishment originally was built on the principle of retaliation between dominative it intended to intimidate. In imperial Rome is amplified seeks punitive punishment, a sharp increase in its forms:

61

62

History of state and law in the foreign countries

– reinstating the death penalty, which in the late republic was not applied to Roman citizens, and there are new types of it: burning, hanging, crucifixion, drowning; – forced labor in mines, forced to work for a fixed period, the return to the gladiators; – various types of links: expulsion from Rome with the loss of citizenship, a reference to the island with complete isolation, the time reference; – for certain crimes envisaged corporal punishment; – widely practiced confiscation of property condemned. 8. In ancient times, the trial of property disputes different formalism, a variety of forms, the division of competences between the magistrate-praetor and judge – an individual appointed to a final decision of the disputed case. The main court in cases of serious crimes has been public meetings. Over time, in the field of judicial apparatus and procedure were the following changes. Judicial competence of civil and criminal cases came to possess the officials belonging to the administrative bodies of Empire. The court and the administration are common organic. The Roman Empire at the time of the court turned into estates. Per-sons, belonging to the privileged class to the higher empire judge – the emperor. Officer got permission to sue in a court of his own head. Division between the preliminary and judicial investigation existed. The judge himself to conduct interrogation, he played the prosecutor and he wore the sentence. The most common means of establishing the truth was torture. In the period of the republic, there is open, public hearing of court cases during the same empire established strict legal procedure mystery-production, was a cover of arbitrariness. Final court of appeal in court cases was the emperor, but this is almost always performed by his office. Questions for the self-control: 1. Tell about the periodization of the history of Rome. 2. Characterize the social and political system in the imperial period. 3. Describe the reform of Servius Tullius. 4. The date of the creation of the Roman Republic. 5. What are the peculiarities of the Roman Empire? Task for srs: 1. Please, write essay on Roman law.

CHAPTER 7

The feudal state and law of Germany

1. General. 2. Characteristics of the state system. 3. Germany in the period of feudal fragmentation. 4. «Carolina» 1532 – feudal model of criminal procedure law in medieval Europe.

1. The territory of Germany VI-VIII centuries was part of the Frankish State. With the collapse of the Carolingian Empire (843), the territory of Germany became part of the East Frankish kingdom, which gave rise to the isolation of the many German regions. Completion of the formation of an independent German feudal states happened after the election in 919 of the German king Saxon Duke Henry I, the founder of the Saxon dynasty. Germany initially included four tribal duchies (Saxony, Franconia, Swabia, and Aleman) and Bavaria, and later were joined Lorraine and Fries-land (Friesland – French, Italian and Slavic lands). The history of the German feudal state can be divided into two periods: – the period of a unified feudal state (X-XII centuries); – the period of feudal fragmentation (XIII-beginning of XIX centuries). 2. During the feudal state in Germany was growing creation of feudal tenure, the mass of the peasants became involved in personal and ground dependency feudal owners. However, this process proceeded in comparison with other European countries slowly and unevenly. Until the end of the XI century Germany is a relatively common listed whole, and the Crown had a considerable force. The King also

64

History of state and law in the foreign countries

relied on the support of the church, and it became the mainstay of the episcopate. Continued in one form or another, feudal system of judicial and administrative unit divided into counties and hundreds. There was a nation-wide military organization with compulsory military service of all free people and the military service of vassals to the king. By the end of the XI century all the people of Germany were involved in feudal relations, an intensive urban growth – both of the old Roman fortifications, and of the new industrial and commercial settlements. From the middle of the XI century Germany increased political decentralization. Feudal lords, gaining full legal and administrative authorities, began to create closed ownership. The city, but finding the original – according to their lords (bishops, feudal king), obtained the release of their power self-governance, personal freedom of citizens. 3. Germany in the period of feudal fragmentation 1. Social system. 2. And government. 3. Judicial system. 1. By XIII century the territory of Germany, in the name of the Holy Roman Empire of the German nation, has increased significantly. In the east, there was GLP – large independent principality. In all areas of the hosts-properties spread of commodity-money relations, increased guild crafts. North German city, headed by Lubeck, merged into a major trade alliance – Hansa. Since XIII century, territorial fragmentation of the country is growing. Princes become virtually independent rulers. Highest power was held by Electors (princes’ voters), the secular and the spiritual aristocrats, who had a decisive influence on the election of the emperors. The election of the German emperors had sanctioned the Golden Bull in 1356 – the most important political document, which was adopted by the imperial assembly (Reichstag), the estaterepresentative institutions in Germany during the reign of the Emperor Charles IV. In the XIII century the German Empire became Czech Kingdom and in XIV century, the imperial throne was elected King of Bohemia Charles I, who took the throne under the name of the German emperor Charles IV in 1346. Golden Bull defined procedure of the election of emperors and established the Collegium Electors, consisting of four secular princes and three archbishops (Czech King, the Duke of

CHAPTER 7. The feudal state and law of Germany

Saxony, Rhineland Palatine, Margrave Bradenburg and archbishops of Mainz, Trier and Cologne). Golden Bull cemented the grand Prince Elector oligarchy and had an impact on the subsequent development of public law in Germany, as it was considered the existing law until the XIX century (before 1806). Bull of Emperor cemented failure to intervene in the internal affairs of princes, legalized war between feudal lords and generally to promote the political fragmentation of Germany. As a result of the Golden Bull in the XIV century, Germany broke up into many parts – counties, barons and knights estates, and simultaneously completed design of estates and of representation. Features of social class structure of Germany were fragmentation and the lack of unity internationally. There were: – imperial estates (the Empire) – imperial princes, knights and representatives of imperial cities; – active in rural estates (in the principalities) – nobles and clergy and citizens of princely kingdoms cities. The clergy are divided into: – upper – bishops, abbots; – lower – rural and urban priests. In the German cities property differentiation has led to the formation of three different groups: – patriciate – urban elite, who held in their hands all the city offices; – burghers, which consisted of an average population of cities, full of masters and were in opposition to the patricians; – urban plebs, who were an opposition to the patricians (apprentices, day laborers, the poor citizens). The position of the peasant population in Germany in XIV was generally several to improve, because instead of the old system were intro-duced new forms of economic organization, causing weakening and eli-mination of personal dependence, but in different parts of the country, it was different: – Saxony common practice to leave farmers without land and will provide them with holdings in the lease; – in the south and south-west of Germany the peasants owned small plots of land corvees which replaced money rent; – the eastern lands colonized peasants were the most-more favorable terms – they received allotments, economic independence and personal freedom, paid feudal Dalam moderate fixed payments.

65

66

History of state and law in the foreign countries

2. Supreme power in Germany recognized College Electors, which elected emperor and were solving the most important nation-wide business. The emperor had no empire-wide effective executive power and empire-wide finance, he did not have a permanent military empirewide, and there was no empire-wide trial. All-German legislature was the Reichstag, consisting of three curiae: Electors Curia, Curia of princes and imperial cities, gentry and the peasants were not represented in the Reichstag. Reichstag convened by Emperor twice a year. The cases to be discussed and finalized by curiae agreed at the general meetings of the curiae. The competence of the Reichstag was not exactly defined, it included the following: the establishment of peace between the kingdoms, empire-wide organization of military enterprises, the issues of war and peace, relations with other countries, the incidence of imperial duties, and territorial changes within the Empire and principalities, changes in the imperial law and etc. Principalities formed their own local estate-representative institutions – Diet, meetings of local officials, which consisted of three chambers and representing the clergy, the nobility and the citizens, and in some states in the meetings also included representatives of the free peasantry. Authorized, to sit in the Diet, received instructions from their constituents who wore the mandatory nature, and if the instruction had no indication how to resolve the issue has authorized them to seek their constituents. The competence Landtags were elected by emperor in the case of suppression of the ruling family, sending some of the functions in the field of foreign policy, some of the church, the police and military affairs. Diet was considered by the Supreme Court before the formation of the Principality of special courts. By influencing the formation of princely advice or for the appointment of senior officials, Landtags may intervene in state administration. Significant role in the life of Germany was played by the city. The legal status of city defined scope of its autonomy. German cities were of three kinds: Imperial – direct vassals of the king; Freestyle – enjoyed complete self-government; Prince – obeyed the prince, in the principality of which they are.

CHAPTER 7. The feudal state and law of Germany

By the end of the XV century more than 80 cities (imperial and some bishops) had political freedom and were self-managing units. Legislative power in the city is carried out by a board composed by the committees by sectors of municipal services. Executive power – the magistrate led by one or more of the mayors. Members of the Board and Mayor were unpaid. Most of the power in the cities captured the city patricians, who assumed the right to elect the city council and the replacement of city magistrates, and used this power to their advantage. This caused discontent among other things urban, is contained in the XIV century artisans to uprisings in several cities, in which usually the leading role was played by guilds and which most often ended in a compromise with the shop patriciate tip – artisans on the boards or formed a special board in the previous council. 3. Judiciary system in Germany is characterized by several types of vessels: – liege, the feudal courts, which were created in the estates in finance. Originally, the land owner has the right to judge only the serfs, and then his jurisdiction extended to all at the village that lived in his seignior; – ecclesiastical courts with jurisdiction, on the one hand, to certain categories of people (clergy and sometimes series of lay persons), on the other – for a certain range of cases (cases of framework of wall, testament, etc. ); – municipal courts. The device was different municipal courts in individual cities. In some cities, the court by a judge and assessors in other – the city council. In most cities, the judges chose the urban Kai community. With the rise of princely power they formed the highest court in the Principality. 4. Feudal model of criminal procedure law in medieval Europe is a «Carolina» – adopted in 1532 during the reign of Emperor of the Holy Roman Empire of Charles V, Criminal Code of Law, on behalf of which got its name. Carolina was one of the few political and legal documents unconditionally accepted by almost all the feudal states comprising weakly centralized and disunited Reich. The reason for this was the fear of a repetition of the events in front of the feudal period 1524-1525, when the whole of Germany, a wave of peasant uprisings. Carolina was published in an aggravation of the struggle between the feudal lords and peasants, between the central German government which sought to

67

68

History of state and law in the foreign countries

establish absolutism, and local lords. That peasant war affected the special – a severe and punishing nature of penalties for Carolina. Not wi-shing to repeat the recent revolutionary events, the German nobles in-sisted on including in the Code of Law sophisticated and barbaric forms of punishment for different, even minor offenses. Warning of potential social unrest and the introduction of Caroline pursued inquisitorial form of proceedings. The trial in the form of Inquisition wore Carolina. A feature of this process was its division during the preliminary investigation, the overall investigation and special investigation. During the latter, very often was used torture, as a means to prove the guilt of the accused was used torture, including even against suspects. According to the German judges chief evidence against the suspect is his own confession. Therefore, in the medieval legal doctrine has become a fundamental thesis of the «recognition as the queen of all the evidence». Questions for the self-control: 1. Give the characteristics of the state system in Germany. 2. The peculiarities of Germany in the period of feudal fragmentation. 3. Characterize «Carolina» 1532 as the feudal model of criminal procedure law in medieval Europe. Task for srs: Please, make the table of Barbarians Truth in Germany.

CHAPTER 8

The feudal state and law of England

1. Stages of development of the English feudal state. 2. The main features of the social system. 3. Characteristics of the state system. 4. England in XI-XIV centuries. 5. Magna Carta (1215). 6. England during the period of absolute monarchy. 7. Law of medieval England.

1. The main stages of development of the English feudal state are: – Anglo-Saxon period, the early feudal monarchy (IX-XI century); – the period of centralized monarchy seignory (XI-XII century); – the period of estate-representative monarchy (in the second half of the XIII-XV century); – the period of absolute monarchy (the end of the XV century-the middle of XVII century). 2. In I century BC Britain was one of the outlying provinces of the Roman Empire. At the beginning of V century Roman rule ended here. The Anglo-Saxons – North Germanic tribes, the Angles, Saxons and Jutes, began to conquer Britain, pushing the Celtic population (Britt) on the outskirts of the island. By the end of the VI in Britain there were formed seven feudal kingdoms (Wessex, Sussex, Kent, Mercia, etc.), which in the IX under the supremacy of the Anglo-Saxon Wessex united in the single state – England. The main feature of the formation of the Anglo-Saxons is the feudalism preserved for long periods of time.

70

History of state and law in the foreign countries

In the first century after the conquest of the foundation of society made up of free peasant commune (Curl) and the nobles (Earls). Nobility first occupied a special position, but was gradually pushed warriors relied on by the king, asserting his authority, and to whom he gave land grants – community land instead of degree from the peasants who lived on them. Farmers bear in favor of land owners governmental service and became personally dependent on their masters. Those peasants, who remained free, followed their duties in favor of the state. With the growth of social inequality and the expansion of the community Earls turned to large landowners. By XI century, with the support of both the monarchy and the Church, to encourage the development of feudal land ownership and justifying the enslavement of the peasants, community relations were replaced by feudal. 3. In the Anglo-Saxon era needs of defense against raids by the Nor-mans and the need to unite all the forces of the ruling class in order to overcome resistance to enslavement of the peasants set the stage for the rise and strengthening of royal power not looking at what still remained to the king as a military leader, and principle of elections in filling the throne was gradually adopted: – the right to sovereign ownership of land; – monopoly on the minting of coins, stamp duty; – the right to the natural supply of all the free people; – the right to military service on the part of the free. The royal court became the center of governance and approximate – state officials. The highest state authority was a council, which consisted of a king, the higher clergy, and secular elite. Fundamental governmental functions by council were elected kings and high court. Local government in England upheld the principle of the territorial government. The main territorial units of the X century were 32 districts – county, the centers of which were fortified cities. The most important local businesses twice a year were discussed at a meeting of the county. It must have been open to all free men of District. Cities and ports have their own meetings, with time before the city and the merchants’ courts. There were also with other villages. County was led Elder men appointed by the King, with the consent of the local nobility and led the county and its armed forces.

CHAPTER 8. The feudal state and law of England

By X century gets police and judicial authority before personal tentative of the King – gerefa (appointed by the King of the middle layer of the case of residential nobility), supervising the timely arrival of the Treasury tax and court fines. 4. England in XI -XIV centuries. 1. Period of seignorial centralized monarchy. 2. Period of estate-representative monarchy. 1. During the period of centralized monarchy seignorial (XI-XII centuries) In England ended with the establishment of the feudal system. After the Norman conquest (1066) fixed the characteristic of English feudalism – the political unification of the country and centralization of state power. Norman kings of the dynasty found firm support in the layer media and small feudal lords, support powerful nobles wore relative and temporary, as they tried to act self-independently. However, when you make a feudal hierarchical ladder, Coy establish direct allegiance of the feudal fishing from the king, which distinguishes England from other European countries. In 1086, there was an universal landed census («Book of the Scarecrow of the court»), assign each of its feudal land ownership and place in the feudal hierarchy. Free peasants were mostly written in it as a credit-lean – villains; remaining – as freeholder. – for English villains typical duties «by the will of the Lord», chawishing corvee, the strict limitation of the rights to allotment of care, the court jurisdiction only his lord (liege justice); – free holding implied free content, opposable to villain’s holding, under the terms of payment of rent (cf. relatively low). The farmers were characterized by Freeholder personal freedom, the fixity of rent, the right of free will, separation and alienation of contents, as well as the right to protection in the royal courts. The reforms of Henry II (ruled 1154-1189) strengthened military and financial powers of the Crown. The main focus of these reforms was the creation of the system of central financial and judicial institutions, as well as the reorganization of the army. As part of financial reform has been allocated «Ward checkerboard» – financial and tax Office King and introduced a single currency – the pound sterling. What also contributed to the strengthening of the monarchy appearance (with X century) was the growth of cities as centers of crafts

71

72

History of state and law in the foreign countries

and trade. Cities usually given the right to self-government and pay annual king (for the most part they were on royal land) a monetary amount. Citizens and Freeholders need protection from the royal power and supported it, which also strengthened the monarchy. In view of the development of commodity-money relations and the growth of market related Seifert taxes and duties are increasingly becoming a monetary nature. – knights, bound overlord military service in XII century. Often rep-laced its cash contribution – so-called «shield money»; – farmers also return performance obligations, often make cash pay-ments. 2. Transition to a new form of government – to estate-representative monarchy (second half of XIII century-XV century) – To implement the civil war in 1263 – 1267 years. This type is characterized by the emergence of the monarchy, formed of representatives of social classes – the parliament. Since the end of the XII century royal power was detrimental to the interests’ knowledge – large section of the population: to confiscate land were oppressed large landowners, introduce new financial burdens and obligations. The country responded with a number of opposition speeches, and in the early XIII century, after the uprising of the barons, supported knights and townspeople. 5. Magna Carta (1215). King John of England signed the Magna Carta (1215), which is considered the first constitutional act England. The main content of the Charter is compromise of King with the barons. Magna Carta in 1215 called «the cornerstone of English liberty.» Thanks ahead of time the ideas contained in the Magna Carta, it initiated the development of human rights legislation. The Magna Carta is the earliest example of a written provision limiting the arbitrary power of the ruler. It is an expression of the principle of limited government, demanding that the legal king in the administration of its powers. Limiting the royal authority, the Magna Carta reflects the principle of the inviolability of the established rights of citizens, primarily the right to personal freedom. However, we must bear in mind that most of the rights guaranteed by the Charter applied to the feudal nobility – English barons, even though it had secured certain rights of other classes After a new political conflict in 1258, King Henry III approved a provision of Oxford, sets mode baronial oligarchs. In response

CHAPTER 8. The feudal state and law of England

dissatisfied with the support of the Knights of the townspeople and some barons demanded from King signing Westminster provisions, guarding knights and free peasants from the tyranny of large governmental feudal lords and the royal administration. In 1263 people started Skye War, which lasted until 1267. Its outcome was the creation of the first English Parliament was finally adopted under Edward I. In the XIV century Parliament has two chambers: – upper House – the House of Lords, the seat of the barons and higher clergy; – the lower house – the House of Commons, the seat of the knights and the city vertex with the lower clergy. Their strong alliance provided the House of Commons more political influence than the estate-representative assemblies in other countries initially parliament only determines the size of estate taxes and filed a collective petition to the king, but the post-gradually consolidate its expertise in the following areas: – the right to participate in the publication of the law; – the right to decide questions of benevolence in favor of the State Treasury; – the right to control the highest officials; – the right to act as the Supreme Court. Control is exercised by the sheriff and his assistant who are elected to local assemblies and coroners. Police and judicial powers were granted by King appointed magistrates. Highest courts in this period were the Court of Queen’s Bench, the Court of litigation and the Court of the Exchequer. 6. England during the period of absolute monarchy 1. Social system. 2. And government. 3. Local control. 4. Judicial system. 1. Formation of absolutism in England due to the following modified as in the social system and the economy. Since the end of the XIV century England fast pace is the evolution of feudal tenure in capitalist: – elimination of serfdom; – decline of feudal rent; – renting aristocratic land lease peasants for a relatively small fee; – the abolition of serfdom, the transformation of the serfs in homages.

73

74

History of state and law in the foreign countries

Large feudal economy during the XV century is in decline, its revenues are declining. The development of commodity-money relations in line with the accumulation of capital and the emergence of the first factories – in the wool industry and industry. By the end of the XV century-the beginning of the XVI century the very appearance of English nobility – the old feudal nobility was wiped out in the civil war of the Roses, on the basis of the middle strata of the nobility formed a new nobility – the gentry, who fill came from the urban bourgeoisie (merchants and moneylenders) and grown rich peasants who bought estates secular and spiritual feudal lords. The formation of a new class of nobility contributed to the inheritance of the English lords, when fixed assets succeeded by the eldest son. Junior, only inherit the title, had to deal with cases that promises to get rich quick: trade, development of production. The interests of the gentry were near those of the bourgeoisie. Feature of economic development in England of this period – formation of capitalist elements in the countryside less than in the city. Rapid development of cloth making has become a major industry, resulted in an increase in demand for wool and increased desire to expand pastures for sheep. In England began agrarian coup. Not content with the seizure of communal land, large landowners forced farmers driven off the land, destroyed their homes and entire villages. Stratification of the rural population has led to the selection: – Farmers Freeholder as wealthy elite peasantry, which exploited wage labor, and often transfer into the major tenants; – homage both smallholder and landless farm laborers. 2. English was in the era of absolutism, the Tudor dynasty, which came to power after the War of the Roses and the early Stuarts (James I and Charles I). Peculiarity of the English monarchy is absolute: – preservation of parliament, became the instrument of a strong royal power; – lack of a strong and developed bureaucratic state apparatus; – preservation of local governments; – lack of a standing army, linked to insularity state. The military power of the country was strong fleet, which provides not only protection from the sea, but also the impact the possibility of active trading and colonial policy. Central bodies of power and administration in this period in England are: – King concentrated in his hands all the real power;

CHAPTER 8. The feudal state and law of England

– King’s First Council, which consisted of representatives of the feudal nobility, the new nobility and the bourgeoisie. He had a broad competence: Managed overseas colonies, regulated in the outer torus, with his participation to issue ordinances, he saw some court cases as a court of first instance and on appeal; – Star Chamber – a political court, which ensured the fight against political dissent; – High Commission – a church body, hold inquisitorial investigations. – Parliament, consisting, as in the XIV century, Two houses – the House of Lords and House of Commons. With the XV century House of Lords is formed mainly from the heritage-governmental peers, the House of Commons – the representatives of the nobility and of city tops. The clergy had not been made as a class in English parliament – the prelates entered the House of Lords. Other clergy wasn’t represented in parliament. Reformation, eliminated at the end of the XVI century. Pope’s authority over the English church and accompanied the confiscation of church lands and turning them into public ownership (secularization), helped to strengthen the absolutism. The church, headed by the king, became part of the state apparatus. 3. In the period of absolutism has increased the dependence of local governments from the central government. Counties were created the position of Lord Lieutenant, who was appointed directly by the king; in his function was to command local militia activities of magistrates and police. Grassroots local self-government units became parish. He is responsible for the local church were the issues and territorial governance. Vestry, to pay taxes, to solve the GP Dew tax distribution, repair of roads and bridges, and the like, as well as elected officials of the parish. Doing church affairs implementation was rector of the parish, whose activity was placed under the control of magistrates’ courts, and through them – the control of the management over counties and central authorities. 4. Under absolutism major courts of the court were «coronary Borel bench», the court «general litigation» and the Court of the Chancellor. Crystallized structure and jurisdiction of the central Westminster courts, including the Court of Justice and the High Court of Admiralty had several properties. There were also set up emergency courts, most notably to – Star Chamber (in fact, a political court). Judicial competence of magistrates was expanded. All criminal cases are

75

76

History of state and law in the foreign countries

instructed to consider the roving and magistrates after the approval by him of the indictment by a grand jury. The court included the jury. 7. Law of medieval England. 1. Property law. 2. Family Law. 3. Inheritance law. 4. Criminal law. 5. Lawsuit. 1. English medieval real right prop-known division of properties in movable and immovable, but the more common and traditional was the division of things on the real property and personal property: – the real property is protected by real claims (which, if successful, the lost item back to the owner). For real property treated tribal property, and such rights to land, who had the character of a free holding, feudal possession of the king or other lord; – personal property is protected by personal claims. It includes all the other things. Land held a special place in the English medieval law. Land rights were determined by two main concepts: – possession, holding (tenancy); – the volume of the owners’ rights and legal interests of the (estate). Possession could be: – free (freehold) – own the land held under a knightly service, or by right of personal service, as well as ownership of the land free peasant; – free (copyhold) – ownership of land on terms of personal fulfillment and agrarian peasant obligations in favor of the Lord, and in time became a hereditary right of feudal rent. The notion of the owners rights to property (estate) includes the rights of persons who are involved in a relationship of ownership, use, disposal and control of property, and provides representation of a set of technical means for the transfer of ownership. The historically evolving history, it took the form of: – obtaining landlords’ prior sale provided that the holder of the new pass all previous service obligations; – possession, close to private property, with the difference that in the absence of heirs land is not escheat; – protected land rights (the right to «forbidden land»); – life tenure; – possession of a certain period.

CHAPTER 8. The feudal state and law of England

Purely English institution of property law was the principal institution: when one person transfers to another in the proper his property or part of it, so that the recipient to become formally owner, property manager, and used it in the interest of the former owner or at the direction. With the development of market relations in English law has warehouses and developed law of obligations: obligations of deflect and treaties. Medieval English law of obligations known among others, the following forms of lawsuits: – a claim for debt; – a claim for the report (the person who has been entrusted people’s money); – claim agreement (requiring the debtor to fulfill an obligation esta-blished by agreement of the parties); – claim for protection of verbal agreements. 2. Family law in medieval England for the interest order to protect and safeguard the feudal tenure. As in other countries in the Euro of this period, it is governed by the rules of canon law – for example, the church form of marriage, the prohibition of divorce and polygamy, etc. English medieval patriarchal family wore. Movables women for mar-riage passed to her husband, in respect of immovable property shall be established to control. A married woman had no right to independent contracting, at oral argument in their defense. Married women in peasant, artisan and merchant families enjoyed pain legal capacity – they can manage their property, Zack Luciano deal to trade. The usual common law recognized divorce, even though canon law did not permit it, allowing only under certain circumstances, separation. In case of divorce or the death of her husband the woman leaves the husband’s family, received his share of the marital property. 3. English medieval law of inheritance and knew the law, and by will. In inheritance, the law established principle of primogeniture – in order to avoid crushing feud devolution of land ownership eldest son, and in his absence – the eldest in the way. Testamentary succession in some areas was restricted – forbidden to remove the inheritance of legitimate heirs. 4. Medieval English criminal law has traditionally been categorized all crimes into three groups: – Felony – a concept which has developed in the XIII century and meant serious crimes (murder, manslaughter, theft of property, forced entry into someone else’s house at night with a view to with completion, etc.). Felony punishable by death and confiscation of property;

77

78

History of state and law in the foreign countries

– Funeral feasts – adultery released from the number of other crimes in the XIV century and has become the most serious offense. In treason included dereliction of duty of loyalty to the king by his subjects (the great betrayal), and crimes against state security (sedition, unlawful assembly to riots perpetrated, conspiracy, an agreement between two or more persons with illegal to measurements); – Misdemeanor – a concept that has evolved gradually from offense previously punished merely recovery of damages in a civil manner. Over time, this group of crimes included fraud, false identities, forgery. Misdemeanor was punishable by imprisonment or a fine. 5. Trial in XII-XIII centuries wore a guilty character. In what follows, English-accusatory proceedings become adversarial in both civil and criminal cases. Preliminary investigation did not exist. Ecclesiastical courts resorted to the services of investigators who have studied the evidence and establish the facts. Their conclusions were based solutions howl. In courts of law the evidence gathered by the parties. At the end of the XV century they were convened special jury indictment to test materials charges. If they are considered to be adequate arguments in favor of the prosecution, the document consisted of the charge. This check could conduct and justice of the peace. After the parties have provided their evidence, the judge was a long wives summarize the case and advise the jury, pointing to the legal issues in the case. A jury returns a verdict of guilt or innocence of the accused. As part of the royal curia, there were allocated judicial colleagues in the affairs of different competencies. Court «Queen’s Bench» inves-tigating criminal cases. Court «general litigation» knew things of general competence, i.e. civil. Questions for the self-control: 1. Account the main stages of development of the English feudal state. 2. Characterize the important features of the social system of England. 3. Analyze the state system of England. 4. The reasons of the adoption of Magna Carta (1215). 5. Give the characteristic of Law of medieval England. Task for srs: Please, write an essay on Magna Carta (1215).

CHAPTER 9

The feudal state and law of France

1. Periodization of the history of medieval France. 2. The social system in the period of feudal fragmentation. 3. Political system in the period of feudal fragmentation. 4. The social system of France during the period of estate-representative monarchy (XIV-XV centuries). 5. Policy of France during the period of estate-representative monarchy (XIV-XV centuries). 6. The social system of France during the period of absolute monarchy (XVIXVIII centuries). 7. Policy of France during the period of absolute monarchy (XVI-XVIII centuries). 8. Law of medieval France.

1. France exists as an independent state since the time-do the Frankish Empire (843) and the allocation of the West Frankish of the Kingdom, which went to the land west of the Rhine. France has called the country only in the X century. History of the medieval state in France can be divided on the following periods: – the period of feudal fragmentation – IX-XIII centuries. – the period of estate-representative monarchy – XIV-XV centuries. – the period of absolute monarchy – XVI-XVIII centuries. 2. During the period of feudal fragmentation (IX-XIII centuries). Rated single kingdom is actually divided into many almost independent fiefs, and in the XI century continued fragmentation within individual duchies and counties.

80

History of state and law in the foreign countries

Fold the two main classes of feudal society – seniors and dependent peasantry – generally completed by the X century. By this time, seniors have the beneficiary of the life transformation benefice award a hereditary feudal property – feud. Shape feudal hierarchy, led by the king, with its characteristic system of vassalage. Vassalage relations were based on a hierarchical structure of land property uniqueness: nominally the supreme owner of all the land in the country is considered the king – the supreme lord, or suzerain, and feudal lords, receiving from him the land, became his vassals. They, in turn, had vassals, feudal lords, which disliked the eye ownership. This staircase washing of the following steps: – at its top was king – overlord; – next – peers, that is «equal to the King», the dukes and earls; – vassals and different stages – aree-vassals; – at the bottom – simple knights, Chevalier, his vassals did not have. Dependent peasants were serfs and villeins. Original location was still serfs close to the Late slavery – part serfs used as landless workers, some were planted in small plots of land. Servo hereditary subordinate judicial and administrative authorities of the same lady, is paid to him-universal (poll) and submit dues, performed corvee and were limited to the following of their civil and economic rights: – the right to go out in Senora Senora; – the right of alienation of land holding; – the right to freedom of inheritance; – the right to choose the wedding party. For villeins who were considered personally free land holders whether owned by the feudal lord, the lack of hereditary personal services (not spread out their duties on the person, and the plot of land), greater land acquisition of contents, as well as resettlement in another estate, on vacant land or in the city. A particular species of feudal dependence was banalitet – installed feudal monopoly on salt extraction and threshing flour. Peasants were forced to use the money for windmills and salt-lords. Agricultural development, separated from it crafts and population growth have contributed from X century to the emergence of new and revival Denia old Roman cities as centers of crafts and trade, although the legal status of citizens is little different from that of octal feudal-dependent people. 3. During the feudal king, figurehead of the state, elected by large landowners – vassals of the king and the higher church hierarchy.

CHAPTER 9. The feudal state and law of France

In the central government palace and patrimonial system get along with management, based on the vassal relations: – palace system, as before, were ministerial (Seneschal – the head of the royal court, constable, the royal treasurer, the chancellor); – Managing for vassal relations, carried out in the form of the Con-gress of the feudal lords of the country, called the Royal Curia or the Grand Council. Local control is characterized by the power of the king recognizing only in its own domain, and large land holdings governmental lords had their own system of local governance. The judicial system in seignorial monarchy acted senor-trivial justice – judicial power is divided between the lords with than the amount of their judicial powers defined step hierarchical stairs, where they were located. The army consisted of knightly vassals’ militia that played service, which they were obliged to seniors. During the wars convened people’s militia. 4. The social system of France during the period of estaterepresentative monarchy (XIV-XV centuries). 1. General characteristic of the period. 2. Characteristics of birth of the social system. 1. Development of cities and the expansion of inter-regional economic relations, as well as building strong economic ties between town and country have created favorable conditions for overcoming feudal frag-mentation, to form a single national market and further economic and social development. There is specialization of agricultural and handicraft production in certain areas and cities, leading to the strengthening of trade relations between the different areas of the kingdom. Under these conditions, increased the population of cities and increased their influence to the situation in the country. With the completion of the period of feudal state under-taken shape estate-representative monarchy. This was possible due to the fact that: – strengthen the socio-economic foundations of the alliance of the royal authorities and cities, thanks to the growth of urban industry and commerce of the monarchy could have help; – around the royalty rallied main groups of medium and small nobility, hoping to protect their privileged position by the royal army, and also for the sake of lucrative positions; – the country needed a strong royal power to fight an external enemy.

81

82

History of state and law in the foreign countries

2. In the XIV-XV centuries formation of hereditary classes ended. French society was divided into three classes: – estate of the clergy; – class of nobility; – Third Estate, which includes merchants, craftsmen, farmers are idle. The first two classes were privileged, exempt from the first-State taxes and duties, to take advantage right of access to public office. The third estate was taxed. Under the influence of the development of commodity-money relations occurred significant change in the legal status of the peasants. Lords replace natural part of obligations and payments cash rents. By XIV century peasant land use change shape – «servazh tsenziva» displaced. Tsenziva called hereditary land holding, the holder of which (tsenzitary) annually paid to his master qualification – firmly fixed cash, sometimes life-rent, and also performed certain duties. Under these conditions, prices had the right to bequeath his tsenziva, mortgages, rent, and sell it with the approval of seniors and the payment of a special fee. The farmer, who found a replacement, kind of person willing to pay the established feudal qualification, could not free himself from addiction? Thus, many farmers left vacant in the city, thus adding to the urban population. 5. Policy of France during the period of estate-representative monarchy (XIV-XV centuries). 1. Public authorities. 2. Judicial system. 3. Regular army. 1. Beginning of the period of estate-representative monarchy in France (XIV-XV centuries). Is considered to be the convening in 1302 of the States General – the highest body of representation. After their convocation in France began to form a new political force – the union of the three main classes, living in the country – the nobility, the clergy and the third estate, which included representatives of the peasantry and the urban bourgeoisie. The predecessors of the States-General in France was extended me-eting of the royal council (with the help of the upper city), as well as provincial assemblies of estates that are put on provincial states. States General were meetings enforcement officials convened at the initiative of royal power at critical moments to help the government,

CHAPTER 9. The feudal state and law of France

their main function was to gather the taxes. Each class in session from separately from the others: – in the first house – the higher clergy; – in the second – the deputies of the nobility; – the third – elected the candidates from the top of the townspeople, «third class». Each chamber has only one vote regardless of the number of representatives. Approval decision is made on all the chambers by a simple majority of votes. Using the differences bet-ween the chambers, and the low power nature of the States General, the royal power almost always achieved the desired classes from her decision. However, it did not mean a conflictsubordination dictates of the king. The value of the States-General has increased during the Hundred Years’ War, when the power of the king is especially needed money. The most acute conflict between the States General and the monarchy occurred in 1357. At the time of the uprising of citizens in Paris and the mass uprising of French peasants – Jacquerie, the States General, in which the main representatives of the Third Estate, put forth a program of reforms, known as the Great March Ordinance. An attempt was made to put the royal power, especially in the financial sector under the control of the estates. However, the attempt of the States General was not successful. Soon after the suppression of a peasant uprising in 1358 and the Paris uprising Jacquerie Crown rejected all claims that were in the Great Ordinance of March. Central governments in this period were: – The Council of State, initiated at the instructions of King leadership and control of the individual levels of government; – The Chamber, in charge finances. Among the most important officials were: – Chancellor, whose function is to-day management and control of the officers, in the absence of the King, he presided over the Council of State, under his direction shall draft ordinances; – Constable – equestrian knight commander of the troops, later com-mander royal army; – chamberlain – the treasurer; – Palatine – royal advisers, carried out separately vouch of the king. 2. The system of judicial institutions are as follows: royal justice pressed liege and church, relatively substantial expanded jurisdiction of

83

84

History of state and law in the foreign countries

royal courts: they could re see any solution liege trial, although the courts are still not yet been separated from the administrative, there has to separation and formation respectively of the judiciary. Under Louis IX Holy conducted financial and judicial reform. As part of the first in France was introduced gold coin – louis. In Paris – the center of the royal domain – set up a special tribunal – Parliament later became the highest appellate court queen’s properties, the most important appeal. Parliament considered the most important criminal and civil cases, could review the decisions and judgments of the lower courts with a new test. Justice in the field of the King dispensed bailiff, seneschal and provost, considering the bulk of the criminal and civil cases. Ecclesiastical court into a special court for special and personal jurisdiction and formed the subject: – lower court – the court official, commissioners episcope; – the second instance – the court of the archbishop; – the next level – the court of Cardinal; – High Court – the court of the Roman Curia, which considered im-portant matters. In the XIV century set up a special body of criminal prosecution and the charges – prosecutors, whose members were called royal procurators and courts acted as prosecutors in cases, affecting the interests of the monarchy («the interests of the Crown»). 3. In the course of the military reforms of the second half of XIV century and the first half of the XV century royal army becomes a regular, significant in number, with centralized management and a clear system. By this time government after the introduction of the permanent taxes had at its disposal considerable funds that were used to mercenaries, mostly foreigners (Germans, Scottish, etc.). Officer positions occupied mainly nobles. 6. The social system of France during the period of absolute monarchy (XVI-XVIII centuries). 1. Features of absolutism in France. 2. Society under absolutism in France. 1. In the XVI century. France began to develop an absolute monarchy of the occurrence of this new form of monarchy is because the end of the XV century in the formation of the country of the capitalist system in the industrial and agriculture: – Industrial Manufactory appeared, and with it – a hired labor force recruited from impoverished artisans, and peasants;

CHAPTER 9. The feudal state and law of France

– increased foreign trade with other European countries, with the current East, and in Spain – with America; – capitalist and semi-capitalist relations in agriculture took the form of term lease. The development of the capitalist system accelerated decomposition of feudal relations, but do not destroy them: – urban craft, small craft and free artisans and top traffickers existed in all sectors where there were no factories; – retain ownership of the land lord and the peasant, as a consequence, the feudal payments, tithe, etc. 2. By XVI century French monarchy lost preexisting of representative institutions, but retained its nature. The first two classes – the clergy and the nobility – completely forbid whether their privileged position. At 15 million population in XVI-XVII centuries belonged to the clergy about 130 thousand people and the nobility – about 400 thousand people, that is, the overwhelming majority of the population in France is the third estate (made up to entered peasantry). The clergy, with its traditional hierarchy, are more heterogeneous and manifest the unity only in their desire to keep the estate, feudal privileges. Between the tip of parish priests intensified contradictions. Nobility in dominant position in public and state public life of French society, but it includes an important change. A significant part of the hereditary «nobility sword» was ruined, and their place in the tenure and at all levels of the royal staff took people from the urban elite, who bought the property rights judicial and administrative positions (let’s aristocratic privilege), passed them by inheritance and become a so-called «nobility the mantle». Inside the Third Estate and property fosters social differentiation: – the lower its levels were farmers, artisans, black workers, the unemployed; – at the top – those of which formed the bourgeois class: merchants, guild masters, notaries and lawyers. 7. Policy of France during the period of absolute monarchy (XVIXVIII centuries). 1. The main features of the state system. 2. State power and control. 3. The system of courts. 1. During the reign of King Louis XIII, Cardinal Richelieu was held administrative reform, in which to strengthen the royal authority was

85

86

History of state and law in the foreign countries

created of the Royal Commissioners on the ground – commissaries. Differed quartermasters justice, police and finance offices are not sold. French absolutism reached its highest stage of development in the period of independent rule of Louis XIV (1661-1715). Feature of absolutism in France was that the king – the latter head of state – has the complete legislative, Executive enforcement, military and judiciary. He obeyed all centralized state mechanism, administrative and financial apparatus, army, police, and court. All residents were subjects, obliged him to obey. Since the XVI century the first half of the XVII century absolute monarchy played role: – fought against the division of the country, thus creating favorable conditions for the subsequent socio-economic development; – the need for new additional funds to promote the growth of capitalist industry and commerce – to encourage construction of new factories, introduced high tariffs on foreign goods strange, waged war against foreign powers – the competitors in the trade, has based the colony – new markets. In the second half of the XVII century, when capitalism has reached such a level that its continued favorable development in the womb of feudalism became impossible, the absolute monarchy had lost all previously inherent limitations progressive features. Further development of producer forces prevailed prevented absolutism – privileges of the clergy and nobility; – the feudal system in the country; – high export duties on goods, etc. 2. With the rise of absolutism of all state power concentrated in the hands of the king. The activities of the States-General has almost stopped, they were chosen, with very rare (the last time in 1614). Since the beginning of the XVI century secular power in the person of the king has tightened its control over the church. Growing bureaucracy, their effect increases central governments in this period were divided into two categories: – inherited from estate-representative monarchy institution, long where sold. They are partially controlled by the nobles and gradually pushed aside in a secondary sphere of government; – institutions established absolutism, in which positions were not selling and complicit officials appointed by the government. They eventually formed the basis of governance. The Council of State actually turned into the highest deliberative body under king. In the State Council included the «nobility of the

CHAPTER 9. The feudal state and law of France

sword» and «mantle» – members of the old hereditary nobility and the «new nobility», who acquired their titles and ranks for the money. The old governments, which took office know and are practically not functioning, included special tips – Privy Council Office of the Chancellor, the Board of the mails, etc. The bodies created during the absolutism, headed by the Comptroller (in fact, the first minister) and four state governmental Secretary – on military affairs, foreign affairs, maritime and court cases. Great importance in financial management tax farmers had braid govern-mental taxes, they – government lenders. In local government, as well as in the central organs, there were two categories: – loss of a significant part of their real powers bailiff, provost, governors, posts which have their roots in the and replaces the nobility; – actually ran the local administration and the court quartermasters justice, police and finance – special authorized the royal government in the field, the posts are usually appointed lime but commoner. Quartermaster divided into districts, in which the real power was handed delegates appointed by the intendant and the subordinate. 3. The court system is headed by the king, who could take his personal consideration or request his attorney any business of any court. In court proceedings coexist: – royal courts; – seignorial courts; – municipal courts; – ecclesiastical courts, etc. In the period of absolute monarchy continued strengthening of the royal courts to. In accordance with the Ordinance of Orleans (1560) and Ordinance of Mulinskyi (1566), he was under the jurisdiction of most criminal and civil cases. Seignorial courts edict in 1788 left in criminal shipbuilding production only function of the preliminary inquiry. In the region of civil proceedings they were amenable only cases small claims, but these things may, at the discretion of the parties immediately transferred to the royal courts. General royal courts consisted of three instances: prevotalnyh courts, and the courts balyazhnyh parliaments. Operate special courts which considered the case, institutional interests: their courts had Accounting Chamber, the Chamber of indirect taxes, the management of mint, and there were courts of marine and cus-toms. Of particular significance were the military courts.

87

88

History of state and law in the foreign countries

8. Law of medieval France. 1. Ownership. 2. Contractual right. 3. Marriage and family. 4. Inheritance. 5. Crime and punishment. 6. Lawsuit. 1. By XI century the most typical form of landed property in France becomes feud. The right of the feudal land ownership combined with elements of communal land. Free peasant land ownership has completely disappeared. The feudal ownership of land was inextricably linked to rights of peasants – for feudal land prices represent is not in itself, but in conjunction with the employee, it has been cultivated. These rights were limited, but constant. The farmer could not alienate his allotment without the seniors, but after could not arbitrarily give off the land farmer. Since XIII century form of peasant land use changes – servazh tsenziva displaced. Peasant tsenzitary exempt non duties and get more freedom to dispose of land with consent of feudal ownership and the payment of a special fee he had the right to sell, give, pledge, and otherwise transfer its tsenziva provided that qualification duly paid. 2. During the period of feudal contractual relations in France developed slowly. In the sale of land for the lord has always recognized the right predominantly purchase sold vassal fief. In addition, he and relatives the seller within the time had the right to repurchase the sold land. In X-XI centuries, when buying and selling property was rare, was the development of the deed of gift. Often this contract masked transaction sale. Recipient of donated properties assumed the obligation to hand in gratitude to the donor certain property. Donation contract has also been used to circumvent restrictions at will. Large sales transactions from XII begin to be compiled in a letter form, and in the future – approved notaries. Since XIII century, with the development of trade, the contract of sale impacts upon its conclusion the parties. It’s object to well things that have not been produced. In the period of absolutism gaining a contract of employment (arenas water) of land. This form of exploitation of the peasants gave the nobility of great benefit, because the rent was not defined custom it and could rise. In addition, unlike tsenziva land put out, at the end of the contract returned to the custody lord.

CHAPTER 9. The feudal state and law of France

3. Marriage and family in France to the XVI century regulated exclusively church rules, is part of Canon Law – the legal system of the Roman Catholic Church. Only in the XVI-XVII centuries Crown battalions in strengthen state influence on marriage and family relation, retreated from church rules relating to marriage. Marriage was seen as an act of civil status. Revision of regulation, under which the marriage did not require parental consent in the XVII century. Parents have the right to the Paris parliament against the actions of the cure; we conclude ended marriage without their consent. Personal relations between spouses were determined by canon law – Chapter husband, wife obedience to him, living together, etc. The children could not perform legal acts without the consent of the parents. His father had the right to ask the royal administration imprisonment unruly children. 4. In inheritance, the law most characteristic institution in France was primogeniture, the transfer of the land by inheritance haves properties deceased eldest son, avoiding the further crushing feudal lords and farmers. The heir is given the responsibility to help their minor brothers and sisters to marry. Testamentary succession has spread first to the south of France. Under the influence of the church has become a testament to penetrate into the usual law. 5. At the beginning of the period of feudal fragmentation in IXXI centuries, Crimes in France was seen as an action that affects the interest’s individuals. The penalties were reduced to compensate for the harm caused to individuals. By the end of this period, the XIXII centuries, when reigning seignorial jurisdiction, the crime is no longer a private matter, but acts as a violation of the established feudal sinusoidal law. Have been developing the qualities of criminal law, as criminal liability without fault, the cruelty of punishment, the uncertainty of the crimes. The main sources of feudal law in this period were kutyumy – collections practices in force in different parts of France. The most prominent were Kutyumy Bovezi composed French judge Philippe Bomanuar. During estate-representative monarchy, XIII-XV centuries, with centralization of the state and strengthening of royal power senorial jurisdiction weakened and the role of law coronary in the development of criminal law. The royal law of punishment was not clearly defined; their use is largely dependent on the discretion of the court, from the rank status of the accused. The purpose of punishment is retribution

89

90

History of state and law in the foreign countries

and deter. Sentences are executed in public, in order to Denmark convicted evoked fear in the audience. Kinds of punishment were: – The death penalty in various forms (tearing apart horses, quartering, burning, etc.); – violence and corporal punishment; – widely used imprisonment; – confiscation of property – as the primary and secondary onpunishment. 6. The trial before the end of the XII century wore a guilty character. The pain had spread ordeal, including the legal fight, which took place at a mutual agreement of the parties, or in the case when one of them accused the opponent of lying. Since XIII century approved investigative, inquisitorial form process. The court case instituted on charges for Crown Prosecutors and the denunciations and complaints. The first stage investigative process was an inquiry, that is, collecting secret information and of the crime and the criminal. Then the coroner collected evidence, question witnesses, and guilty, held parades. Their trial was held in closed session, I decide that are so essential attached material collected during the investigation. Proof of guilt of the accused were, but his own with knowledge, witness statements, letters accused protocols with in the act, and so on. When investigative process implied guilt of the accused, and therefore the testimony of one witness was sufficient to torture. Its purpose was to obtain confessions. Questions for the self-control: 1. Give the periodization of the history of medieval France. 2. Characterize the social system in the period of feudal fragmentation. 3. The peculiarities of the political system in the period of feudal fragmentation. 4. Tell about the social system of France during the period of estate-representative monarchy (XIV-XV centuries). 5. What were the differences of the policy of France during the period of estaterepresentative monarchy (XIV-XV centuries) and absolute monarchy (XVIXVIII centuries)? Task for srs: Please, characterize Law of medieval France.

CHAPTER 10

The state and law of the Arab Cali phate

1. The emergence of the Muslim empire. 2. The main features of the social system. 3. Characteristics of the state system. 4. The collapse of the Caliphate. 5. The law of the Caliphate.

1. The emergence of state was accompanied by the Arabs getting of a new religion – Islam – associated with the name of the Prophet Muhammad. The core of the Arab Caliphate was founded by Muhammad in the beginning of VII century for western Arabia Muslim community (umma). Islamic calendar – Hijra – began in September 622, when the first Muslim pressure pagans were forced to flee from Mecca to the city of Yathrib, later renamed Medina. In 630631 years. Muslims under the leadership of Muhammad conquered Mecca, and then the other parts of Arabia. As a result of the Arab conquests Caliphate became a huge theocratic Muslim state, including Tunisia, Morocco to Egypt, Iran, Iraq and many other parts of Arabia, which was dominated by feudal relations, while maintaining strong religious and patriarchal structures. The history of this state properties are usually subdivided into the following periods: during the reign of the Umayyad dynasty (Damascus) – 661 to 750. During the reign of the Abbasid dynasty (Baghdad) – from 750 to 1258 years. Muhammad’s preaching was a reaction to sweeping the Arab society crisis caused by the incipient folding of feudal relations,

92

History of state and law in the foreign countries

expansion of tribal communities, undermine the corresponding her polytheistic religious beliefs. All macaws would have been called to make a unified nation, regardless of tribal origin. Muslim community is one simultaneously political organization or religious corporation, united by a common faith, not blood ties. Preaching a strict monotheism and the closely related unification of the new faith, which proclaims the equality of all its followers, whatever their origin and tribal accessories, found a favorable response from those members of society who have sought to centralize and elevate Arabia. In turn it was average and poor. Soon the new Muslim ruling elite joined the old tribal and merchants know, making sure that the new religion does not threaten their interests. Islam in its very infancy already a synthesis of religion, politics and regulations, in which religion and advocated unifying the determining factor. The connection of the secular and religious spheres in theological shell identification of morality and law made use comprehensive total system that claims to satisfy all spiritual needs and for this reason requires individuals unconditional devotion (the word «Islam» in Arabic means «loyalty», «submission»), and the right to roll over all aspects of his life. Religious-of elite ideal of Islam (social justice, limited growth, freeing the slaves) contributed volumes need United inhabiting different Caliphate ethnic, racial, cultural groups into a single political-ideological body. 2. Social order in the Muslim empire includes the following key characteristics: – dominance of state ownership of land; – increased use of slave labor in the public sector; – exploitation of the peasants by the state rent – tax in favor of the ruling elite; – religious and state regulation of all spheres of public life; – lack of clear caste groups, a special status in the first-birth, no liberties and privileges. Muslims have a higher legal status than dhimmis (non-Muslims). Although originally the inhabitants of the conquered country to keep itself, their language and their own courts, but with time their civil rights were severely limited: their relations with Muslims were regulated by Islamic law, they could not enter into marriage with Muslims, had to wear distinguishes them clothes, food supply Arab army, paid poll tax and land registry (kharaj).

CHAPTER 10. The state and law of the Arab Cali phate

3. The head of the new Islamic state was Mohammed, combined in his person the functions of the religious and political leader: the secular and the spiritual leader of the Ummah, a preacher, a legislator, commander in chief. Muhammad was the source of power is not tribal tradition, and that the absolute religious prerogative given to it by God (Allah) as a prophet – messenger. After the death of Muhammad (632) from among his closest relatives and associates, who had by then consolidated in the privileged group, were chosen new sole actors of Muslims – the caliphs. They were named said Deputies of Muhammad, and since the Umayyads – Deputy of Allah himself on the ground. They belonged to the highest power – spiritual (Imamate) and secular (Emirate), indivisible and unlimited. The state took the form of centralized theocratic monarchy. Senior Advisor and Chief Executive Officer under the Caliph was the vizier (minister). In the early Caliphate viziers had limited mandate and only executed the orders of the Caliph, they were important dignitaries later under the Umayyads. Central government in the Muslim empire had special departments. Under the Umayyads and Abbasids, they were called sofas (in the first successor of Muhammad Omar, who ruled in 634-644 years. The word «sofa» means a list of the distribution of income states, and storage of these lists.) These government offices were: – military sofa – sofa al-Jund, in charge of equipping and arming troops; – interior sofa – sofa-al-kharaj taxation and financial agency; – postal Service sofa – sofa-al-Bared, which, in addition to its core functions (mail delivery, construction and repair of roads, barns and wells), also provides for the secret police. Local control is via the emirs (Arabic for «behavior», «Prince»), the governors who ran the provinces on which divided territory of the Caliphate. Emirs were responsible only to the caliph and led local armed forces, as well as administrative, financial and police apparatus. Emirs whether deputies – naib. Smaller administrative units (town, village) admi-nistered by officials of various wounds and governmental titles. Often these functions are placed on the heads of local Muslim religious communities – the elders (sheikhs). The military and po-lice functions were in the hands of mercenaries – mutasibs.

93

94

History of state and law in the foreign countries

4. By XI century effect of factors such as different levels of economic development were part of the Caliphate countries, weak economic bonds between the regions of the Caliphate, national liberation and anti-feudal rebellion, the concentration of land ownership in the hands of the military and the landed feudal aristocracy, the struggle within the feudal class, led the collapse of a single state, and led to a virtually independent feudal states. At the beginning of the IX separated emirate of Cordoba in Spain, then Tunisia, and Morocco, and in the middle of the same century – Egypt. Caliph retained its power over part of Mesopotamia and Arabia. East Caliphate was destroyed Mongol invaders in XIII c. In the western part of the spiritual authority of the Caliphate to the Caliph continued to XVI century. 5. The law of the Caliphate. 1. Sources of law. 2. Ownership. 3. Family Law. 4. Inheritance law. 5. Criminal law. 6. Proceedings. 1. The main source of law for Muslims with the emergence of the Caliphate and is still considered the Sharia – a set of religious, ethical and legal pre-Islamic writings. It includes norms of state, civil, criminal and procedural law and is based on the Qur’an, Sunnah and Ijma. The Quran is the main holy book of Muslims, a collection of sermons, ritual and legal precepts, prayers, edifying races and parables. It contains provisions are in the nature of religions and moral guide systems. Sunnah is collections of traditions (hadith) of the doings and sayings of Muhammad honey outlined his associates. In large part are contained provision for the family inheritance and destiny law. Shiite Muslims (Iranians, Afghans, Tajiks) do not recognize some of the provisions of the Sunnah. They believe the last prophet and defender of the faith of the Caliph Ali. This difference between the Shia and Sunni traditional sometimes led to religious wars between them. Ijma – according to the opinion of authoritative Muslim scholars, experts on specific Sharia religious law and domestic customs whose so-lution cannot be based on the Quran and the Sunnah. In addition,

CHAPTER 10. The state and law of the Arab Cali phate

in the Muslim countries on each important issue of public life must be getting fatwa’s – legal conclusion higher religious authorities (the Mufti, Sheikh-ul-Islam) the conformity of an action or event to Sharia. With the spread of Islam, there were other sources of law – the decrees and orders of the caliphs, local customs, do not contradict Islam, etc. 2. In Islamic law there were fixed following legal land statuses: – Hijaz – the sacred land where Muhammad lived (Mecca with the neighborhood, in the present time – a province in Saudi Arabia), state ownership. For they had established a special legal regime, with residence in these lands of Muslims was levied a tithe; – waqf – donations of land, referred to mosques, schools and other organizations on the religious and charitable purposes. They were exempt from taxes and were considered inalienable; – iqta – conditional temporary granted to feudal lords for the service of land with living on their peasant population type benefice. Were later transformed into feudal property type county, and liege, as in Europe, acquired over time, not only the tax, but the administrative and judicial immunity; – mulk – private land ownership. Unlike iqta mule was not due to the bearing of the civil service, he could be given, donated or inherited. Sharia law was known division of things into movable and non-movable, and nonessential characterized individual signs and without any. Movable property could also fall into the category Waqf. A special category was for the things that could not or should not have been in the property. This is the air, the sea, the desert, the mosque, the waterways. Ownership was not recognized by «unclean things» – wine, pork, books, contrary to the provisions of Islam, etc. Practical issues in the law of obligations have sharia comprehensive development. 3. Sharia regards marriage as a religious duty of Muslims. For a marriage required the consent of the parties, including the bride. The will of the bride had a right to express her parents, so the marriage is often performed as a commercial transaction between the bride’s father and husband. The Qur’an recognizes the right of a Muslim to have up to four wives at the same time. The husband is obligated to provide each wife estate, housing and clothing, are consistent with his position. Islam secured the subordinate position of women in the family. Wife does

95

96

History of state and law in the foreign countries

not participate independently in property turnover, and was obliged to keep house and raise children. Divorce in Islamic law is known in several forms. Husband had the right to divorce his wife and precisely defined reasons, and without reason: it was enough for him to say in public three times verbal formula «talaq» , which means divorce. The wife had the right to demand a divorce through the courts on a strictly definiteness grounds. 4. Inheritance law recognized two orders of inheritance by law and by the will. In inheritance, according to the law of the estate of the deceased at first there were covered costs of his burial, then the debts were paid. The remaining property is transferred to the legal heirs. First of all, the children receive the inheritance of the deceased, then his brothers, uncles, etc. Hereditary, women were twice lower than men. Of inheritance were not allowed apostates, spouses, persons who caused the death of the testator. Characteristic features of inheritance under the will were: – the will could not be drawn up in favor of the legal heirs; – testament could affect more than a third of the property of the testator; – making will require the presence of two witnesses. 5. All crimes are classified by Islamic law into three groups: – crimes against the foundations of religion and state (jihad). This group includes the first apostasy from Islam, rebellion, resistance to authority, and then stolen, the use of alcoholic beverages by adultery. These crimes cannot be pardoned, and often punished by death; – crimes against persons. Liability for the crimes of this group was founded on the principles of blood vengeance and retaliation; – an offense for which punishment is not strictly set. Right punishment was given to the court. Judge kadi had the right to choose their own way to measure and punish the guilty (such right is called «tazir»). As the penalties foreseen: – the death penalty in various ways; – mutilation and corporal punishment; – imprisonment (imprisonment, house arrest, putting to the mosque);

CHAPTER 10. The state and law of the Arab Cali phate

– proprietary sanctions (confiscation, fines); – link, etc. 6. The judicial process was accusatory in nature. The main features of the proceedings were: continuity of the trial of the sole litigation, no difference in the procedure of watching civil and criminal cases. Cases are brought stakeholders, not government bodies (except of of-fenses related to the first group – against the foundations of religion and state). The parties themselves had to be worked for. The trial was held in oral. The main evidence was the recognition of the parties, the testimony of witnesses, oaths. One of the most famous legal treatises Arab East is the «Book of Kharadzha» (Kitab al-kharaj). Questions for the self-control:

 

1. Please, tell about the emergence of Muslim empire. 2. Account the main features of the social system of Muslim empire. 3. Give the characteristics of the state system of Muslim empire. 4. When has happened the collapse of the Caliphate? 5. Analyze the sources of Muslim Law. Task for srs: Please, write an essay about the law of the Caliphate.

97

CHAPTER 11

English bourgeois revolution of the XVII century

1. Stages of the revolution. 2. Political currents. 3. Characteristics of the constitutional stage of the revolution. 4. The Civil War. 5. Independents Republic. 6. The restoration of the Stuart monarchy. 7. Approval of a constitutional monarchy in XVIII century England. 8. English law in the XVII – XIX centuries.

1. The monarchy in England by the early XVII century became a stronghold annealing lashed feudal-absolutist system, but economically and socially strengthened the bourgeoisie and new nobility sought autonomy of self-guide government policy in their favor. In the lower house, they found a ready political tool for their purposes. The struggle between the Crown and the Parliament, which began under Elizabeth I, under Charles I led to the dissolution of Parliament (1629), and in 1640 – to the bourgeois revolution, known as the «Great rebellion». The history of the English bourgeois revolution can be divided into four stages: – constitutional phase (1640-1642 years); – the first civil war (1642-1646 years); – the fight for the deepening of the democratic content of the revolution and second civil war (1646-1649 years); – Independents Republic (1649-1653 years). 2. Ideological weapon of the opposition to absolutism was widespread public religious-political movement – Puritanism (from the

CHAPTER 11. English bourgeois revolution of the XVII century

English. Pure – clean) Puritans were supporters of «cleansing» the Church of England from excessive luxury, advocated the simplification and reduction of the cost of church worship. The main virtues of man Puritan doctrine were hard work, thrift and stinginess. Accumulated during the life of wealth is the testimony of God’s chosen people of the believer. Puritan ethic reflected the interests and values ​​of the emerging British bourgeoisie. Compassion of socio-political and religious views of Puritan movement led to the inside of their camp on the eve of the revolution, and has created the following political trends. – Presbyterians, which included big bourgeoisie and the landed aristocracy. Their requirement was to limit the king’s power and the establishment of a constitutional monarchy with a strong conservation of the king; – Independent – representatives of medium and small nobility, mid-dle class urban bourgeoisie. They sought to establish a limited cons-titutional monarchy, the recognition and proclamation of the rights and freedoms of citizens. Presbyterian leader was Oliver Cromwell (1599-1658 years). – Levellers (literally «egalitarians»), separated from the Independents flow and enjoy the greatest support among the artisans and peasants. Levellers were members of the urban petty bourgeoisie and the prosperous peasantry. They advocated political equality, broad male suffrage, were supporters of the destruction of the royal power and the establishment of the republic. The leader of the Levellers was Lilbern officer John (1614-1657 years). – Diggers – the supporters of the society, «welfare», based on the ab-sence of private property. They considered themselves «true leveler». In the 1649-1650 years tried to establish a colony for teamwork and dormitories. The poor, the peasants and artisans tried jointly handle heath and common living communes. Leader – Gerrard Winstanley (1609-after 1652). 3. In 1628, the Parliament adopted the «Petition of Right» – a docu-ment in which deputies demanded that King Charles I do not impose taxes without the consent of Parliament. Petition, referring to the Mag-na Carta in 1215, reminded the king that no British citizen shall be arbitrarily arrested, imprisoned or deprived of his land. Under pressure from Parliament Charles I was forced to approve the petition, but in 1629, dismissed the «Shrew», as he was called, the Parliament. With the adoption of the «Petition of Right» started long relentless

99

100

History of state and law in the foreign countries

struggle for political influence in England between the national bourgeoisie and the Parliament, on the one hand, and the outdated feudal monarchy itself, on the other After nearly 11 years of governing without the Parliament, in 1640, Charles I reconvened parliament. Unsuccessful prosecution of the war with Scotland and the lack of funds forced the king to ask Parliament for grants. After the subsequent refusal, Parliament was again dissolved. In history it is known as the Short Parliament (lasted a little over 3 weeks). In November 1640 under pressure from the military and political crisis Charles I again call the Parliament, which was to become debt free (it operated until 1653.) From that moment, the active period of the English Revolution starts. Long Parliament passes a series of constitutional acts that have been limiting the absolute power of the king. – Triennial Act 1641, which provides for the convening of Parliament every three years, regardless of the will of the king. The act es-tablished a constitutional rule that the Parliament cannot be dissolved except by his own decision. The document was to stop the practice of arbitrary dissolution of Parliament by Charles I. – «Grand Remonstrance» 1641 – Constitutional act, concentrating in itself the basic ideas and the political struggles English bourgeoisie against the absolute rule of Stuart, and became, in effect, the political program of the bourgeois revolution. Consolidation in the «Great Remonstrance» position on the need for a complete reformation of the church and eliminate the political influence of Catholic prelates (bishops sit in parliament), was a significant victory for the English Puritanism. – The special parliamentary decisions eliminated principal organs of English absolutism that function as political and religious tribunals – the Star Chamber and the High Commission. In response to the strong action of the Parliament, in 1642, Charles I began to set the royal army. Civil war began. 4. Weakly armed and unorganized parliamentary army, also controlled the General Presbyterian initially was failing. Failure forced the parliament to reform the army plan proposed by Oliver Cromwell. Military reform, called «new model» to make the army of the Parliament a powerful military force. The basis of the parliamentary army troopers was ordered by Cromwell – so called Ironsides. Good

CHAPTER 11. English bourgeois revolution of the XVII century

equipment and paid the army, which had been driven out of the generals-Presbyterian, led by Thomas Fairfax in the summer of 1645 defeated the king’s army near the village Naseby. Charles I fled to Scotland and soon was given to Parliament. In 1647, the Presbyterians, who did not want the deepening of the revolution and seeking to preserve the life of the king, who unleashed a second civil war, this time against the revolutionaries. Levellers and Independents signed the so-called «People’s Agreement» – a contract in which an army of Oliver Cromwell was able to win over Presbyterian. Presbyterians were sit in parliament were expelled as a result of the so-called «cleaning Colonel Pride». In 1649, King Charles I Stuart was executed. March 17, 1649 adopted the «Act on the abolition of the royal title». Parliament declared England a republic. 5. After the execution of King Upper House of Parliament – the House of Lords was abolished. The highest state authority was the House of Commons the British Parliament, which was legalized by a special resolution. The highest executive body was the Council of State. He stood at the head of Cromwell, whose power was gradually transformed into the sole. Parliament, which refused to admit it, in 1653, was broken up. Formed as a result of this mode of protection – protectorate, Cromwell was secured by the Constitution – «management tool» in 1653. All power in the state in fact belonged to the Lord Protector. Local power was concentrated in the hands of the army generals Cromwell. Man rule O. Cromwell was fixed for life. Dictatorial regime crashed just after the death of Cromwell in 1658. 6. In 1659 in England, was formally restored republic, but strengthening democratic movement bourgeoisie and gentry hundred-whether to lean towards the «traditional monarchy». In 1660, he made restoration of Stuart, who sanctioned the major economic gains of the bourgeois revolution. Ascended the throne, the first son of the executed King Charles II, and after him, and his brother – James II, tried to restore the absolute rule in England. However, the «Glorious Revolution» (bloodless coup of parliament 1688-1689), which resulted in the coming to power of the liberal-minded bourgeoisie to King William III of Orange, has issued a compromise between the bourgeoisie, received from now on access to state power, and the landed aristocracy. 7. Approval of a constitutional monarchy in XVIII century England. 1. General. 2. Habeas Corpus Act.

101

102

History of state and law in the foreign countries

3. Bill of Rights. 4. Act of dispensation. 5. Constitutional precedent. 6. Parliament. 7. The Cabinet of Ministers. 1. Approval of a constitutional monarchy in England been restated in the following Acts of Parliament: – Habeas Corpus Act – 1679; – The Bill of Rights – 1689; – Act on the dispensation -1701. 2. Adopted in 1679 Habeas Corpus Act (literally from Latin. «Order of delivery of the body») or the «Act providing for a better freedom of subjects, and on the prevention of imprisonments beyond the seas» has acquired a value of one of the basic constitutional documents of England. It makes the rules of arrest and brings the accused to trial, gives the court to monitor the legality of the arrest and detention of citizens and contains a number of principles of fair and democratic justice: the presumption of innocence, due process in detention, fast and efficient vessels operating with proper judicial procedure, and in a place, for misconduct. Its name comes from the Latin initial line by a court order on delivery arrested. 3. Parliamentary Bill of Rights of 1689, sharply limited the prerogatives of the crown and the rights guaranteed Parliament. He established the freedom of speech and debate in Parliament, freedom of the par-liamentary elections, the right to appeal the subjects to petition the king. Parliamentary term was defined in three years, was later extended to 7 years. It also asserted the supremacy of Parliament in the legislative authorities and financial policies. Without the consent of the Parliament had no right to the king: – suspend the law or its implementation; – raise taxes and fees to the Crown; – recruit and maintain a standing army in peacetime. King continued to participate in the legislative process, as he is given an absolute veto. 4. Constitutional Act on the dispensation, or the «Law of Succession», adopted in 1701, established the order of succession and contain further refine the competence of the legislative and executive authorities. For the development of the constitutional system of England important were the following provisions of this document:

CHAPTER 11. English bourgeois revolution of the XVII century

– Establishing the principle of countersignature, according to which acts issued by the king, was valid only if signed by relevant Minister; – Establishing the principle of tenure of judges – to remove them from the position by the decision of the Parliament. This rule proclaimed separation of the judiciary from the executive. 5. An important part of the British constitution is the unwritten rules, the establishment of which determines the further development of the English constitution. The rules established in the XVIII century and became known of the constitutional precedent. The main ones are: – failure to attend the King cabinet meetings; – formation of a government of the members of the party that won the elections voices; – collegial responsibility of the Cabinet; – failure of the King of the veto. 6. The Parliament of England after the «Glorious Revolution» again became bicameral: – House of Lords – the upper house composed of people holding seats by inheritance, by post or to appoint the king; – House of Commons – the lower house; was formed on the basis of the franchise. By acting in the XVIII century Lower House election law in its social composition hardly differed from the top, which accounted for dominance of aristocracy in Parliament. 7. At the beginning of the XVIII century in the UK there was created a new executive body – the Cabinet, chaired by the Prime Minister. By the middle of the XVIII century Cabinet has become detached from the king the supreme governing body of public affairs, consisting of representatives of the majority party in parliament and the collective responsibility of the House of Commons. The independence of the cabinet is provided so the rule (constitutional precedent), as failure to attend the King cabinet meetings. The responsibility of the Cabinet to the Parliament expressed in the resignation of the cabinet, whose policies do not have support of the Commons. 8. English law in the XVII – XIX centuries. 1. Sources of law. 2. Civil law. 3. Family Law. 4. Inheritance law. 5. Criminal law and procedure.

103

104

History of state and law in the foreign countries

1. The feature of England is that there is no codified law. Although one of the main sources of law in England is the law, and the XIII century in England was issued a number of laws, they are not kept in any system. Many of the old laws apply to the present, but by ship their content has changed radically, and some laws have not been repealed, but are not used because they do not meet the needs of life. Private law of England is largely developed in the form of case law. Case law has not had and does not have to judge the course mandatory. In some cases, the judge may depart from precedent and make a new decision on its content. Case law consists of two parts: the common law and Handbook. 2. One of the main sections of the civil law is the law of property. In the XVII – XIX centuries. English property law did not know the division of things into movable and immovable – even in the Middle Ages, in the division of things happened: – the real thing, which include land, vegetation, buildings, as well as documents that establish the right to land and the subject connected to the ground; – personal items – all other items. All property rights in England are considered as a form of property right. Among the types of property rights can also be identified: – law of property leasing; – easements, including personal; – a trust; – security property rights. Individual sub-sectors of civil rights are contractual rights and obligations arising out of the offense. Characteristic features of English contract law are: – requiring a precise definition of the rights and obligations of the parties; – requiring the debtor to the full and faithful implementation of commitments. 3. The English family law has long maintained ecclesiastical form of marriage, civil marriage became possible only after 1836 (it’s the form of marriage where it’s possible to choose the future spouse). Personal relations between spouses were based on the rule of her husband and disposition of the marital property belonging to husband; wife could commit itself only to everyday life. Only in 1882, the law was set independent married woman in possession of their property. Divorce was recognized only in 1857.

CHAPTER 11. English bourgeois revolution of the XVII century

Up to age 21 sons and daughters were under his father authorities, the mother exercises parental authority only in the absence of his father. Recognition of illegitimate children allowed in exceptional circumstances and only by Act of Parliament. In 1908 was established the responsibility of parents in cases of child abuse. 4. English inheritance law known as inheritance laws and testamentary succession: hereditary succession is regulated by a set of rules of inheritance of land and other property to be inherited; – in inheritance by will a characteristic difference is the complete freedom of the will – any person who has reached 21 years, could bequeath their property to anyone, and the next of kin if the will were not entitled to any share of the property. 5. The criminal law of England was systematized only in the middle of the XVIII century. In this branch of law feudal institutions slowly gives way to new criminal institutions. The conservative nature of the English criminal law, due to the fact that it developed as private law, on the basis of the use as case law, not the law. Especially conservative criminal law of England was in the question about the kinds of punishments. Common form of punishment is a death penalty in different variants: the wheel, quartering, extracting guts of the living body, etc. The nature of the criminal proceedings in England is different in that the Prosecuted process was at the same time a process of adversarial. In 1907, in the English criminal law was introduced the concept of probation and pretrial detention. Preventive detention rejects the person upon completion of sentence imposed on them, convicted at least three times for serious crimes and leading normal lifestyle, if the court recognized their habitual offenders. Questions for the self-control: 1. Account the stages of the revolution in England. 2. Tell about the constitutional stage of the revolution in England. 3. Account the peculiarities of the Civil War in England. 4. Characterize of Independents Republic in England. 5. What means the restoration of the Stuart monarchy in England? Task for srs: Please, give the broad characteristic of English law in the XVII-XIX centuries.

105

CHAPTER 12

Creation of USA

1. The colonial period. 2. The American Revolution and the Declaration of Independence. 3. The formation of a confederation. 4. The U.S. Constitution 1787. 5. United States in the beginning of the XIX-XX centuries. 6. U.S. Bill of Rights 1791.

1. The first permanent English settlement in Plymouth and Georgetown, was founded in 1607 in what is now the State of Virginia, and by the middle of the XVIII century in North America there were the 13 English colonies. An important feature of the socio-economic development of North American colonies was the existence of slavery. Widespread use of slave labor in the colonies was caused primarily by the fact that the colonists are relatively easy to acquire land. Sources of «white» slave forces were immigrants, persons convicted for political reasons, criminals, and insolvents. Gradually «white slavery» was replaced by the cheaper «black slavery». However, elements of feudalism in the socio-economic structure were not enough, and quickly began to spring elements of the capitalist system. In the southern group of colonies, where sugar cane, chlorine, tobacco were cultivated, economy was based on slavery. Economy of Northern group of colonies, which began to develop farming and manufacture, was rapidly acquiring capitalist character. With the development of capitalism in the colonies gradually folding unification of the market and the strengthening of economic ties between the colonies were formed the North American nation. As economic development of the colonies grew, contradiction between them and the mother country grew as well. The British govern-

CHAPTER 12. Creation of USA

ment was considering colonies as a source of raw materials and a market for British industry and pursued a policy of containment of industrial development. The colonists considered themselves as British subjects of free coronary, to which the law metropolis: the Magna Carta, the Bill of Rights, common law, equity, etc. The immediate cause that caused the mass movement against the mother country, were the measures adopted by the British government in the 60’s. XVIII century: Adoption of the Stamp Act, the tightening of anti-smuggling trade, which infringed the interests of almost all American colonies. In 1765, Congress convened in the colonies, which refused to recognize the right of the mother country taxing the colonies that did not have their representatives in Parliament. 2. The American Revolution began as a national liberation movement, and then grew into a war for independence. Feature of this revolution is that it was national liberation, national unification and antifeudal movement. In 1774 in Philadelphia, the first Continental Congress assembled representatives of the colonies, who called for a boycott of British goods and at the same time tried to reach a compromise with the mother country, a petition to the king, in which the colonists were asked to cease the harassment and did not give rise to a break with crown. In response, the British government began military action. In May 1775 opened the Second Continental Congress. It proposed throughout the colonies to create a new government to replace the colonial government, stated the state of war with England and decided to establish regular armed forces. George Washington was appointed as Chief of the American army. Each colony declared itself an independent republic. The struggle for independence started. July 4, 1776 of the Third Continental Congress adopted Declaration of Independence with revolutionary character. The declaration announces the final cessation of state dependence of the metropolis and the formation of independent United States. The gap was motivated by the fact that the British government violated the rights of Americans. The declaration said: «All men are created equal, and they are all gifted their by the creator unalienable rights, amongst which: life, liberty and the pursuit of happiness. To secure these rights, governments are instituted among men, borrowing their just powers from the consent of the governed. If this form of government does not ensure fundamental rights, the people have the right to change or destroy it, and to institute

107

108

History of state and law in the foreign countries

new Government. Thus, the declaration made «founding fathers» of American democracy, Thomas Jefferson, Alexander Hamilton, John Adams, the first legal doctrine embodies the idea of ​​natural rights, first of all, the recognition of human freedom in his birth, equal rights, people’s desire for happiness and people’s right to resist oppression and change of power. It was the first in the history of the state legal document which formally proclaimed the principle of national sovereignty, and told to the people the right of revolution. Despite the absence of the Declaration of Independence in 1776 the provisions on the legal status of black slaves and Indians, it was the most progressive document of the New Time, which marked the transition to a qualitatively new – democratic – an era of human development. 3. In the war for independence became clear that consolidation states, and in 1781, the Congress of representatives of the states affirmed «Articles of Confederation». According to the document states joined the «everlasting covenant» – con-federation, called the United States of America. Each state has maintained his independence and all rights other than those which passed Confederation through its organs. States pledged to mutual assistance and non-interference in each other’s affairs. Their citizens were endowed with commercial and industrial privileges and benefits to the same extent in all states, the right of free entry and exit. For managing the general affairs of the United States Congress was formed, consisting of delegates elected annually in each State by the number 7.2 people. Congress granted the right to enter into international agreements, to decide questions of war and peace, to dispose of media properties States for military spending, to assert​​ command of the army. Most of the decisions on these issues have gained legal force only after approval by at least nine states. In dealing with Congress, each state had one vote, which provides for freedom of speech and debate in Congress as well as the implication of non-members. Although the creation of a confederation largely contributed to the further unification of the state of the war for independence from Britain and its victorious conclusion, the obvious was the political, economic and military instability of the Union, especially in heterogeneous conditions prevailing socio-economic structure in different states (northern states – the bourgeois, the southern – slave). As a result, a stronger state association – a federal union, was formed in 1787.

CHAPTER 12. Creation of USA

Full independence was recognized by the United States by Great Britain in 1783 by signing the Treaty of Versailles. 4. The U.S. Constitution 1787 Bill of Rights 1791. 1. The development and adoption of the constitution. 2. The legislative power. 3. Executive power. 4. Judiciary. 5. The Bill of Rights – the first 10 amendments. 1. Federal U.S. Constitution, adopted in 1787 and entered into force in the country so far – as modified by the 27 amendments (the latter introduced in 1992). Its adoption was due to economic, political, social and ideological factors: the economic difficulties of the postwar period, the threat of a new, civil war, the need for unity and centralization of state power – all this required the creation of a single state. Constitutional Convention adopted a constitution, which was con-vened in 1787 in Philadelphia, and on which 55 States have sent their delegates. Almost all the delegates had the experience of statelegal work or business activities. Prominent among them was played A. Hamilton, G. Washington, D. Madison, Randolph E., W. Wilson. The U.S. Constitution is based on the principle of the separation of powers between the legislative, executive and judicial. It is very concise, many of its articles are general in nature, hence the critical importance of the interpretation, which is the prerogative of the U.S. Supreme Court. 2. Legislative power in the United States belongs to the Parliament – Congress, which consists of two chambers: – Senate – elected for six years and is updated every two years by a third. The Chairperson of the Board shall be the Vice-President. In the present time elections to the Senate are made in a direct manner, originally elected by state legislatures; – House of Representatives – elected for two years. The chairman is known as the Speaker. The powers of the two chambers are equal, but the Senate has the exclusive right to ratify international treaties and confirm appointment to the post of President. Legislative initiative belongs to the members of both houses. The main functions of the Congress are: – priority – the adoption of laws and adoption of the budget; – regulate commerce with foreign nations and between the States;

109

110

History of state and law in the foreign countries

– implementation of domestic and foreign policy – he has the right to declare war, conclude agreements on loans, recruit and maintain an army and navy, etc. 3. The executive power in the United States belongs to the president, who is endowed with powers of president and prime minister. The president is elected indirectly by the Electors’ board, which, in turn, elected by popular vote. As the head of state and government of the President: – has the right to suspense veto bills adopted by Parliament; – send messages to Congress, which proposes legislation; – developing a project budget; – is the supreme commander of the armed forces; – conclude international treaties and executive agreements (with Ag-reement – without the consent and approval of Parliament); – a decision to start the actual war; – oversee the management of the country with the help of subordinate state apparatus, making administrative disposal of appointment to the highest position; – has the right to pardon and reprieve, etc. 4. The judiciary in the United States vested in the Supreme Court consisting of nine judges. The judicial system consists of the federal courts, state courts and local courts. System of federal courts, led by the Supreme Court, is regional and district (appeal) courts. All the judges of the federal courts are appointed by the President with the consent and approved by Senate. On the most important issues is introduced by the jury. The U.S. Supreme Court is the highest court in some important cases, which oversees the activities of the lower courts, but also serves as the constitutional review. In the federal system, there are also special courts – adjoin tax, military claims to the government, etc. 5. Despite considerable practical elaboration of the U.S. Constitution in 1787, it was not proclaimed democratic rights and freedoms and guarantees of the federal violations of their rights by public authorities. Therefore, in 1791, with the participation of J. Madison, the Constitution was amended ten amendments, called the Bill of Rights. The amendments were proclaimed the basic democratic rights and freedoms, guaranteed the inviolability of their property, lays down some basic principles of criminal justice. The adoption of the Bill significantly influenced the formation of the U.S. two-party system (political groups that defend the interests of

CHAPTER 12. Creation of USA

the big owners and advocates for the Constitution in its original form, i.e., without the Bill of Rights, later formed the Democratic Party, and the supporters of amendments to the Constitution, representing the interests of employers and farmers – the U.S. Republican Party). The amendments added to the Constitution the United States, making them more progressive, democratic content. However, as previously adopted constitutional acts, the Bill of Rights ignored the question granting rights and freedoms of black slaves and Native Americans – Indians. – First Amendment – freedom of religion, freedom of speech and the press, the right of the people peaceably to assemble, and to contact the government to petition; – Second Amendment – the right of the people to keep and bear arms; – Third Amendment – prohibition of forced quartering of soldiers in peacetime; – Fourth Amendment – the inviolability of their persons, houses, papers, and effects; – Fifth Amendment – a jury trial and due process of the western uncompensated seizure of private property; – Sixth, Seventh and Eighth amendment addresses procedural the principles and safeguards, they will determine the terms of criminal and civil cases that should have been considered by a jury for Chair. These amendments prohibit excessive taxes and fines, and cruel and unusual punishment; – Ninth Amendment establishes the principle of the inadmissibility of restrictions on the rights of citizens; the Constitution does not explicitly mention. Tenth Amendment does not touch civil rights. 5. United States in the beginning of the XIX-XX centuries. 1. Territorial expansion of the United States. 2. Form political parties. 3. The Civil War 1861-1865. 4. The consequences of the Civil War. 1. Since the end of the war of independence in 1783, before the start of the Civil War in 1861, the territory of the United States has increased by several times. During the «Indian Wars» invaded the lands of indigenous peoples – Indians. In 1803, Thomas Jefferson for $ 15 million bought Louisiana from Napoleon – the territory west of the Mississippi River, nearly doubling the original territory of the United States.

111

112

History of state and law in the foreign countries

According to the agreement in 1819 Spain was forced to cede the U.S. Florida, actually attached to the U.S. earlier. As a result of the Mexican-American War, 1847 -1848. Mexico sold to U.S. Texas, California, Arizona, New Mexico, Nevada, Utah and part of Colorado. In 1846, the United States acquired the UK most of Oregon. In 1867, Tsar Alexander II sold Alaska to the Americans for $ 7.2 million dollars. As a result of the Spanish-American War of 1898, the U.S. captured Puerto-Rico, Guam, the Philippines, invaded Cuba. The order of creation of new states determined Ordinance 1787 when the population of the newly developed territory reaches a certain number, Congress declared its autonomy. After some time, Congress received the right to autonomy of the reorganization in the state subject to a republican form of government, the recognition of the Constitution and other constitutional laws of the United States. Chosen convention, which was the state constitution, approves ballot. Relevant authorities and government were created. The U.S. Congress took the decision on admission to the union of the new state. By the beginning of XX century the number of states reached 48. 2. During a fierce political struggle in the United States of America formed the Federalist Party, and Republicans (80’s. XVIII century) Federalists (political group, led by Alexander Hamilton) expressed the interests of the industrial north – a major commercial bourgeoisie, bankers and landowners. They advocated the principle of gaining centralized power and limitations of bourgeois democratic freedoms. In foreign policy focused on Great Britain. Republicans (the same democratic Republicans or Antifederalists, led by Thomas Jefferson) relied on slave states of the South – the planters, farmers, rural entrepreneurs, and the urban petty bourgeoisie. They demanded to facilitate farmers to land, to democratize the constitution to give the states greater rights. In foreign policy, they focused on the support of revolutionary France. After the Anglo-American War of 1812-1814 years Federalist Party practically ceased to exist, the power was in the hands of the Republicans. Their governments partially implemented agrarian reform and adopted a number of important measures to develop the industry. In 1828, the Republicans came to replace the Democratic Party, the creation of which the decisive role played by President E. Jackson

CHAPTER 12. Creation of USA

(1829-1837 years). By the 40 years it from the party initially uniting growers, farmers, and part of the bourgeoisie, completely transformed into a party of slaveholders and related banking and commercial bourgeoisie. In 1854 the party split off from the «north wing». In the 30-ies on the basis of the Federalist Party, a new political organization of the bourgeoisie of the North – the Whigs was formed. Subsequently, it fell apart, and in 1854 established the Republican Party. Soon it was formed two trends: the right and the liberal-democratic. 3. In 1820, between the industrial northern states and slavery southern Missouri compromise was reached; its essence was to ensure that in future the slave states could not be established to north of 36 degrees 30 minutes north latitude. Geographic limitation of slavery did not eliminate the contradictions, but only put off the collision of the North and the South. Since the early 30’s a mass in the U.S. nationwide motion abolitionism – the movement for the immediate abolition of slavery. In 1860, the U.S. President was elected Liberal democratic wing of the Republican Party of Abraham Lincoln – comes from a simple farm family, the famous abolitionist. In February 1861 the Southern slave states declared secession – division of the southern states and the formation of an independent state, the Confederate States of America, which consisted of 11 states. The Constitution of the Confederate States of America declared the slave state cornerstone of all state buildings. In April 1861 Confederates started civil war. In the first phase of the war (1861-1862 years) Northerners suffered a series of heavy defeats due to poor armed and trained army. The turning point came at 1863 is fighting the northerners in 18641865 years were strong and agile character. By the summer of 1865 Confederate troops were defeated, and the Confederate states ceased to exist. In February 1865, Congress passed the Thirteenth Amendment to the Constitution, repealing slavery throughout the country. 4. The Civil War 1861-1865 and the subsequent period of Reconstruction of the South 1865-1877 years led to the completion of the bourgeois-democratic reforms. In much of the U.S. definitively won farm path of capitalist development in agriculture, all power into the hands of the bourgeoisie. Importance to the legal and political system of the USA was adopted in 1868, the Fourteenth Amendment to the Constitution, which prohibited the states to pass laws restricting the benefits and privileges of U.S. citizens, as well as to deprive someone

113

114

History of state and law in the foreign countries

of liberty or uniqueness without due process or deny anyone – or within its jurisdiction the equal protection of the laws. This revision created legal conditions for the emancipation of the Negroes and the equation of the same rights as white citizens. The civil war was to strengthen the presidency of Abraham Lincoln at that influence the development of this institution for the entire future history of the United States. In the last quarter of the XIX century country transformed from an agrarian Republic, the way it was in the 60’s, a mighty industrial power, and emanated changes in all spheres of society. Rapidly growing large industrial cities were New York, Chicago, Pittsburgh, Cleveland, and Detroit. The Union was adopted 12 new states. Economic concentration of production and capital accompanied the consolidation of political power in the hands of a financial oligarchy taking shape within which starred representatives of the bourgeoisie of the North. 6. U.S. Bill of Rights, 1791. (First 10 amendments to the Constitution of 1787) Amendment I Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to contact the government to petition for redress of grievances. Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. Amendment III No soldier shall, peaceful, exactly as in war time, be quartered in any house, without the consent of the owner, but in time of war, but in a manner prescribed by law. Amendment IV The right of the people to protect their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be infringed. No Warrants shall issue, but upon probable cause, supported by oath or affirmation, in this order must contain a detailed description of the place to be searched, and the persons or things to be seized. Amendment V No one shall be held to answer for a capital, or otherwise infamous crime, unless, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia,

CHAPTER 12. Creation of USA

when in actual service in time of war for a period of public danger, nor be for the same offense to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, no one can be deprived of life, liberty, or property, without due process of law, private property be taken for public use without just compensation. Amendment VI When all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of the State and district, previously established by law, where the crime was committed, the accused is entitled to be informed about the nature and cause of the charges, he has the right to confront witnesses against him, to have compulsory process for obtaining witnesses from their side to the assistance of counsel for his defense. Amendment VII In all civil cases, at common law, where the value in controversy shall exceed twenty dollars, retain the right to a jury trial, and no fact considered by the jury, cannot be otherwise reexamined in any Court of the United States, than according to the rules the common law. Amendment VIII Should not require excessive bail excessive fines imposed, nor cruel and unusual punishments inflicted. Amendment IX The enumeration in the Constitution, of certain rights shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. Questions for the self-control: 1. Characterize the colonial period in USA. 2. Tell the date of the American Revolution. 3. The peculiarities of the Declaration of Independence. 4. Analyze the procedure of the formation of a confederation. 5. Characterize the U.S. Constitution 1787. Bill of Rights 1791. Task for srs: Please, write essay about United States in the beginning of the XIX-XX centuries.

115

CHAPTER 13

The French revolution of 1789-1794

1. The causes of the revolution. 2. Stages of the revolution. 3. Constitutional monarchy. 4. Declaration of the Rights of Man in 1789. 5. The Constitution of 1791. 6. The system of government of the French Constitution of 1791. 7. Girondist Republic (First Republic). 8. The Jacobin Republic. 9. France during the period of the Empire. 10. Second Republic in France. 11. The Third Republic in France. 12. French Civil Code 1804. 13. French Penal Code 1810.

1. The decisive blow to the feudal-absolutist system dealt in French Revolution 1789-1794 years. It was instrumental in the approval of the constitutional order and the new democratic principles of organization of state power. XVIII to the French Revolution a strong sign of social progress in the world cleared the way for the further development of capitalism as a progressive for its time, the socio-political system, which has become a new stage in the history of world civilization. The revolution of 1789-1794 years was a natural result of a prolonged crisis and progress outdated and became the main obstacle to the further development of the French absolute monarchy. The inevitability of the revolution was predetermined by the fact that absolutism:

CHAPTER 13. The French revolution of 1789-1794

– ceased to express national interests; – Protects the medieval class privileges; – protect the exclusive rights of the nobility to the ground; – Supports guild system; – Established trade monopolies, etc. In the late 70’s. XVIII century commercial and industrial crisis caused by the non-hungry crops led to increased unemployment, the impoverishment of the urban poor and the peasantry. Peasant unrest began, exchanging soon in French cities. The monarchy was forced to make concessions. May 5, 1789 opened the meeting of the General States, first since1614. June 17, 1789 meeting of the deputies of the Third Estate declared itself the National Assembly, and on July 9 – the Constituent Assembly. The attempt of the court to dissolve the Constituent Assembly led to an uprising in Paris on 13-14 July. 2. Course of the French Revolution, 1789-1794 is divided into the following stages: – the first stage – the establishment of a constitutional monarchy (14 July 1789 – 10 August 1792); – second stage – establishing Girondist Republic (August 10, 1792 – June 2, 1793); – the third stage – approval of the Jacobin Republic (June 2, 1793 – July 27, 1794). 3. Beginning of the first stage of the revolution is the date July 14, 1789 when the rebellious people stormed the royal castle – Bastille prison, a symbol of absolutism. The big troop of rebels took the whole Paris in their hands. In the weeks that followed the revolution spread across the country. The people deposed royal administration and replaced it with new elective bodies – municipalities, which included the most respected members of the Third Estate. In Paris and provincial cities bourgeoisie created its own armed forces – the National Guard, the territorial militia. Each of the National Guard was at his own expense to buy weapons and equipment, which prevents access to the National Guard to the poor citizens. The first stage of the revolution was a period of domination of the big bourgeoisie. Authority in France was in the hands of political groups acting in interests of wealthy bourgeois and liberal nobles and does not tend the complete elimination of the old order. Their ideal is a constitutional monarchy, so in the Constituent Assembly, they were called constitutionalists. At

117

118

History of state and law in the foreign countries

the hearts of their political views were trying to come to terms with the nobility, on the basis of mutual concessions. 4. August 26, 1789 the Constituent Assembly adopted a policy document of the revolution – Declaration of the Rights of Man. The Declaration proclaimed the principles of democratic government legal system – popular sovereignty, natural and inherent human rights and separation of powers – as well as the linkages of these principles. Art. 1 of the Declaration states: «Men are born and remain free and equal in rights». As natural and inalienable rights in Article 2 were proclaimed: – freedom; – property; – security; – resistance to oppression. Freedom defined as the ability to do anything that does not harm others (v. 4). Articles 7, 9, 10 and 11, claimed individual liberty, freedom of conscience, religion, speech and the press. Art. 9 proclaimed the principle of the presumption of innocence: the defendants, including the detainees are presumed innocent until their guilt has been proven in the manner prescribed by law. The idea of ​​sovereignty was secured Art. 3. It served as a justification for the principle of national representation. Art. 6 proclaimed the right of all citizens in person or through their representatives to participate in the formation of the law, which was declared by the expression of the general will. Articles 13 and 14 stipulate the procedure, the taxes, and duration of their collection. Art. 15 grant citizens the right to request a report from each person must-surface part entrusted to him by management. Art. 17. – The latter declared the right to property is inviolable and sacred. With the obvious progressive, Declaration of the Rights of man and citizen in 1787, built on abstract assertions about «freedom», «equality» and «fraternity», allowing, however, interested political forces interpret its provisions, depending on the existing specific historical moment. Because of this, in the first stages of the revolution, were not completely eliminated monarchical rule and feudal relations in France. 5. Simultaneously with the preparation of the Declaration of the Constituent Assembly began to draw up a constitution. The final text of the constitution was based on the numerous decrees and decisions that had a constitutional nature and adopted in

CHAPTER 13. The French revolution of 1789-1794

1789-1791 years: Decrees on the abolition of the division into estates, on church reform, the destruction of the old administrative rule of the country, the abolition of workshops and etc. Constitution establishes the basic principles governing highest legislative body, the king, the government, the courts, and the electoral system. The Constitution established a system of government based on the principles of separation of powers, limited monarchy, the establishment of national sovereignty and representative government. It was approved September 3, 1791, a few days later the king swore to uphold the Cons-titution. 6. The system of government of the French Constitution of 1791. 1. The legislative power. 2. Executive power. 3. Judiciary. 1. Under the Constitution of 1791 the supreme legislative body became unicameral National Assembly. It is elected for two years and could not be dissolved by the king. His supporters granted the right to privacy, to persecute them for ordinary crimes required the consent of the National Assembly. The bill, passed by the Assembly, was to be approved by King, although Royal veto was of a character. The competence of the National Assembly is as follows: – in the area of ​​finance – the annual budget preparation and approval of the establishment of taxes control of public expenditure; – in the area of ​​administration – the establishment and abolition of public offices; – in the area of ​​justice – criminal prosecution before the Supreme Court of ministers and other senior officials, the excitation of criminal prosecution of persons suspected of plotting against the security of the state; – in the area of ​​military affairs – publication of annual resolutions on the number raising and the armed forces, the definition of money, a declaration of war; – in the area of ​​external relations – the ratification of treaties with foreign countries, the state. 2. King must exercise executive power with appointed by the Prime Minister: – manage internal management and external relations; – approve the appointment of senior officials; – lead the armed forces, by assigning part of the command structure.

119

120

History of state and law in the foreign countries

He had the right to act only within the framework of laws adopted by the National Assembly, his disposition gained force only after they are signed by the appropriate Minister. Local control was entrusted to the elected bodies that controlled guiding ministers. If the decision of the local authorities was against the laws and regulations properties, the king could cancel them, and in case of disobedience – to remove officials from office, putting notification of the National Assembly. 3. The judicial system was the establishment of: – Supreme Court, designed to dismantle the offense of Ministers, as well as crimes that threaten the security of the state; – Trial by jury in criminal cases; – Court of Appeals, which, without considering the merits of the case, could overturn the lower court imposed in violation of the order of proceedings, or contains a clear violation of the law. He had to make decisions on appeals against the sentences handed courts of last resort, and several other applications. Judges are chosen on a fixed term and could be removed only in cases of crime and in strictly defined by row. The Constitution adopted by the Constituent Assembly in 1791, is an example of a compromise agreement between the weak royal authority, on the one hand, and efforts the big bourgeoisie and the landed aristocracy (the so-called «Feuillants»), not wanting to further revolutionary change on the other. The consequence of this trade-off, in essence, eviscerate the idea of ​​the Declaration of the Rights of Man in 1789, was the preservation of the royal government in the form of a constitutional monarchy. Power of the king is not eliminated, and only limited by the National Assembly – the highest legislative body. This, combined with the reactionary electoral laws that establish different qualification (for example, the separation of voters in so-called. «Active» and «passive») and in fact rejects the declared equality, the Constitu-tion of 1791 did not viable, especially in the growing revolutionary fer-ment among the people. 7. Girondist Republic (First Republic). 1. The political situation. 2. Establishing Girondist Republic (second stage of the revolution). 3. Drop Girondist republic. 1. The adoption of the French Constitution in 1791 did not mean the end of the political struggle in the country. The new system of government reflects a temporary equilibrium. By the summer of 1791 accom-

CHAPTER 13. The French revolution of 1789-1794

plished the split of the Third Estate. Finalized the three main political groupings: – Feuillants – Conservatives, representatives of the big constitutional monarchist bourgeoisie and the liberal nobility; – Girondins – centrists, representatives of more radical trade and industrial middle classes; – The Jacobins – radicals, represents the interests of small, medium bourgeoisie, artisans, and peasants. At the same time preparing the European monarchies to intervene against revolutionary France made public. In 1792, the war with France entered Austria, Prussia and Sardinia, in 1793 – Great Britain, the Nether-lands, Spain, etc. The betrayal of many generals French army invaders facilitated entry into France, and then advance on Paris. The king and the nobles – the secret allies’ invaders – associated with foreign invasion their hopes for the future. Rumors about the plot of King pushed the masses to revolt August 10, 1792. Powerful revolt overthrew the monarchy and dumped those in power Feuillants party – the party of the big bourgeoisie. 2. In the second stage of the revolution (10 August 1792 – 2 June 1793), power was concentrated in the hands of the Girondins, is the effective political power in the Legislative Assembly. Of their representatives was formed Provisional Executive Council. A special decree of the Legis-lative Assembly has convened a new government body – the National Constitutional Convention. The convention ended with elections in September 1792. There were elected 783 deputies, of which about 200 and about 100 Girondists Jacobins. Majority of deputies did not belong to any of the groups and drafted to political center. In the night from 21 to 22 September 1792 the convention approved by decree the abolition of the monarchy and the abolition of the Constitution in 1791, and took over the training of the new Constitution. The decree of 25 September 1792 France declared a single and no divisible republic. 3. Further developments Telling acute struggle between Girondist Government in the Convention and the Jacobin opposition. The fall of the Girondins authority contributed to several circumstances: – came as the ruling party to replace Feuillants and passing a conservative position, the Girondins tried to stop the revolution;

121

122

History of state and law in the foreign countries

– abolishing the Constitution in 1791, they were unable to give France the republican new constitutional document; – question remained about the final and total elimination of feudal relations in the countryside; – deteriorated economic and especially the food situation due to the war. Inconsistent centrist policy of Girondist’s Convention led the republic to the brink of ruin. About two-thirds of the country was in the hands of foreign forces and counter-revolutionaries. Attempt to counter the Girondins Paris province where their position was strong and the Girondins rapprochement with openly counterrevolutionary elements made inevitable a new popular uprising on May 31 – June 2, 1793. 8. The Jacobin Republic. 1. Approval authority of the Jacobins (the third stage of the revolution). 2. The Constitution of 1793 3. The Jacobin dictatorship. 1. Armed uprising of citizens and national guardsmen completion moose 2 June 1793 expulsion Girondins from the Convention and the transfer of power to the Jacobins. The third stage of the revolution – approval of the Jacobin Republic (June 2, 1793 – July 27, 1794). Series of decrees issued in June – July, the Convention, which is now Jacobins gave farmers and community land confiscated from counterrevolutionaries (partly free, partly benefits costs) and completely eliminated all remaining feudal right and privileges. The decisions were immediately implemented at the same time transforming the state into governmental order. 2. Instead of the Constitution by conventions in the enfranchised canceled June 24, 1793 adopted a new Constitution («Constitution of the first year of the Republic»), a much more democratic. It, like the previous one was from the Declaration of Human Rights and the citizen and the Constitution Act itself. New Declaration of Human Rights and Citizen stated it that an entire society is «general happiness» that the government should ensure that the person using his natural and integral rights. However, if the first Declaration as natural and inalienable rights proclaimed liberty, property, security and resistance to oppression, the second to the number of those carried: – equality (legal – in full); – freedom;

CHAPTER 13. The French revolution of 1789-1794

– safety; – property. The Declaration has consistently held the principle of legality. Law is defined as an expression of the general will. The rule of law was associated with the concept of «sovereignty of the people», introduced the concept of interaction «sovereignty of the nation». Democratic principles of the Declaration were elaborated in the Constitution Act, 1793, sets the state system. Act solemnly confirmed the establishment of the republic. The supreme power belonged declared sovereign nation. Suffrage was universal, and not enfranchised, but only for men. Opportunity to vote was given to all citizens who have permanent residence for at least six months. Every Frenchman, enjoying the rights of citizenship, could be elected throughout the country. Embodied in the state and legal ideas of the French Enlightenment and philosophers (notably, Jean Jacques Rousseau), the Constitution of the First Republic attempted to consolidate political and property equality, however, not formally, as the previous constitutional acts. Legislature declared a permanent legislative body (National Assembly). It consisted of one chamber and was elected for one year. Bill adopted by the National Assembly becomes a law only if in 40 days after it is sent to departments in most of them one-tenth of the primary assemblies does not rejects the project of the law. On a number of the National Assembly in December could publish portraits that are final. Highest governmental body of the republic was the Executive Board, which had charge of the Activity of all departments (ministries). Its members are elected by the National Assembly from among the candidates nominated by the lists of primary and departmental meetings. The Council was responsible to the National Assembly. Introduction to the Constitution of 1793 actually was not carried out, due to increased counter-revolution, foreign intervention and the subsequent establishment of the regime of the revolutionary dictatorship. 3. The critical situation of the Republic in connection with domestic and international conditions forced the convention to postpone introduction of the constitutional regime and replace it with a regime of dictatorship – the system of government, endowed with extraordinary powers. Absolute power in this system has: – The convention, which had the right to issue and interpretation of laws;

123

124

History of state and law in the foreign countries

– The Committee of Public Safety, which became in fact the main organ rated government; – The Committee of Public Safety. In the field, they relied on by nationwide revolutionary committees and «people of society». Endowed with extraordinary powers commissioners of the Convention, is accountable to the Committee of Public Safety. Judicial proceedings shall revolutionary tribunal, applies death penalty as the only punishment. In one year, the Jacobin dictatorship allowed the main tasks revolution that remained unresolved in the four preceding years. By October 1793 the Jacobin government has made a breakthrough in the course of military operations and by the summer of 1794 as a result of the victory of revolutionary Army military threat has disappeared and the new republican system has become a political reality. However, the consolidation of the republic led to the disintegration of the unity and to gain internal differences in the Jacobin bloc. Regime created to fight the counter-revolution, for the sake of realizing the ideals of democracy, began to turn into authoritarian. Adopted in February – March 1794 decrees (according to which ought to confiscate property of recognized enemies of the revolution, and to distribute it among poor patriots) were not enforced due to the resistance of large ownership elements in the apparatus of the Jacobin dictatorship. Jacobins stopped offering: – rural poor and plebeian elements – because some of their social requirements have been satisfied; – prosperous peasants (and with it the mean) and the bourgeoisie – because they did not want to put up with a restrictive regime and policy. July 27, 1794 as a result of a conspiracy against the Robespierre go-vernment coup, overthrowing Jacobins republic. Set the mode of the Directory. 9. France during the period of the Empire. 1. Napoleon Bonaparte’s coup. 2. The Constitution of 1799. 3. The proclamation of the Empire and the fall of Napoleon. 1. Objective political weakness replaced the regime of the Directory Jacobins contributed seizure of power «strong personality», which were concerned the ruling circles of France and have found

CHAPTER 13. The French revolution of 1789-1794

it in the person of General Napoleon Bonaparte. Its adoption means the actual departure from the democratic gains, previously adopted proclaimed revolutionary constitutional instruments. The basis of the new constitution was the idea of ​​the rule of the government, in fact, allowed to usurp all state power its head – N. Bonaparte. The existence of a large number of other political bodies was intended to disguise undivided young general. Adoption of the Constitution in 1799 marked a transition stage to the complete seizure of power N. Bonaparte and its supporting political forces and the subsequent proclamation of the Empire. The executive power was transferred to the Executive Committee, held on three consuls. The real power was concentrated in the first consul, a position occupied Bonaparte. The legislative body has been replaced by two legislative Commissions, whose task was the development of a new constitution. Democratic forces have been able to drag a new dictatorship. The new regime has supported the peasants, who had been promised, and later provided it is sewn to land ownership. The peculiarity of the coup was that it was carried out not only through political conspiracy, but also with the direct support of the army, which became a pillar of the state of power in the context of political instability and inefficiency of constitutional bodies. 2. Consulate regime legally confirms the Constitution in 1799 Government consisted of three consuls, elected for a term of 10 years. The Constitution has appointed the first consul Napoleon Bonaparte. As First Consul served with special powers: – He exercises executive power; – appoint and dismiss ministers, members of the State Council, on ¬ words, generals, high officials of local government, the judiciary; – have the right of legislative initiative. The second and third consuls had advisory powers. Bills could offer only the government, which is the first consul. Legislative power under the Constitution was: – Council of State, these edits for the draft law; – Tribune, discuss them; – The legislative body, to accept or reject them entirely without debate; – Enforcement Senate approves them. Thus, the authorities had no independent value, but only masked the absolute rule of the First Consul. Administrative-territorial control

125

126

History of state and law in the foreign countries

was affected with the help division of the country into departments, districts, communes. The leadership of departments was appointed by the Government exercised prefect, as in the district – the deputy prefect. Mayors and members of the Advisory Council of Municipalities and cities are appointed by government, which sets strict hierarchical subordination of officers to the First Council. 3. As a result of the plebiscite in 1802 Bonaparte was declared consul for life with the right to appoint a successor, which meant, in effect, resumption of the monarchy. In 1804, Bonaparte was proclaimed Emperor of the French, completely concentrated in the hands of the executive and the legislature. The main levers of imperial power were: – army, transformed at the time of formation of Empire of vocational and include preferred troops – the Imperial Guard. It has acquired enormous influence on the political life of the country; – police system, whose development and Napoleon attention. Police at the Ministry established a system of political investigation and espionage. Commissioner-General and Commissioner police districts and cities formally submitted to the prefects, but in fact appointed by the Minister of Police and acting under his direction; – bureaucracy; – church. With the transition to the French empire formed on the basis of deve-loping capitalism to civil society gained stability and order, but has lost all of the major democratic gains of the Revolution. The government pursued any manifestations of free: banned public gatherings and demons-trations, imposes strict censorship of the press, etc. End of Empire was predetermined military defeat of France. In 1812, Napoleon’s army invaded Russia and during the war was destroyed. In 1814, Russian troops together with allied forces entered France. Napoleon’s empire collapsed. 10. Second Republic in France. 1. The 1848 Revolution. 2. The Constitution of 1848. 3. Electoral reform. 1. Attempt to restore the monarchy in France (the period, which lasted from 1814 to 1847) has led to a general crisis in the country – economic, trade-industrial and financial.

CHAPTER 13. The French revolution of 1789-1794

In winter 1848 the population of Paris rose to armed insurrection. The impetus for the uprising was the shooting of unarmed peaceful demonstration of Paris, demanding the democratization of the political system and take action to improve the economic situation. Already on the day after blowing rebels seized key strategic parts of the capital. King Louis-Philippe abdicated. The interim government formed of representatives of the Liberal Democratic opposition, February 25, 1848 proclaimed France a republic. Published a series of decrees: – the introduction of universal direct suffrage – for men; – the consolidation of the right to work; – safeguards labor organization – to provide jobs for all, to reduce the length of the working day in Paris for one hour. Simultaneously, the government strengthened the armed forces. The mainstay of the government in the fight against radical movement was created by the Mobile Guard. Soon interim government increased taxes that the bounce to the peasantry. In the spring of 1848, there were the elections to the Constituent Assembly, which adopt the Constitution. The majority in the assembly were the very large bourgeois landowners, and senior clergy. 2. The Republican Constitution of 1848 established the following principles of government: – republican form of government; – separation of powers; – representative government. The highest legislative body is the National Assembly, served with the exclusive right to make laws, including the budget, issues of war and peace, the statement regarding trade and some other issues. Assembly deputies elected Senior for 3 years. Chief Executive declared president. Under his command were the army, the police, and the administrative apparatus. The President does not depend on members of Parliament and was elected for 4 years directly by the population. The President is given broad powers over the right to make draft laws, the right to delay the veto right of pardon, and so the President to appoint and dismiss ministers, commanders of the army and navy, the prefects, the governors of the colonies and other higher posts to persons. President could not be re-elected for a second term, had no right to grow-start the National Assembly.

127

128

History of state and law in the foreign countries

The Constitution provides for the establishment of the State Council, appointed for 6 years by the National Assembly. The competence of the council of state bills has included a preliminary review of projects coming from the government and the National Assembly. To his conduct were classified as control and monitoring of administration and resolve in the course of its administrative activities and disputes. The central and local governments have not undergone substantial changes. The administrative-territorial division into departments, districts and communes also survived. 3. Constitution introduced universal and direct suffrage with secret ballot. Voters could be all male Frenchmen aged 21, to enjoy civil and political rights. Subsequently entered a six-month residency requirement for voters, and then increased to three years. The absence of effective constitutional system of «checks and balances» and saving almost unchanged from central and local government could help to maintain a stable political environment in France. This situation was aggravated by strong Bonapartist sentiment among French farmers, bankers and business leaders, which linked the former grandeur of France, with the former imperial rule and the name of the Emperor Napoleon Bonaparte. Logical conclusion of the political situation was a coup and seize power nephew of Napoleon I, the first president of the Second Republic of France, Louis-Napoleon Bonaparte, who later became the Emperor Napoleon III. 11. The Third Republic in France. 1. Approval of the Third Republic. 2. Constitutional laws in 1875. 3. The development of the state system. 1. The defeat of the Second French Empire in the war with Prussia in 1870 and the fear of a repetition of the events of the Paris Commune forced the conservative political forces of France to begin the production of the republican constitution. It was to take the Constituent Assembly. However one solution constitutional issues took over political reaction. Act of August 31, 1871 the National Assembly, where the majority be-longed to the monarchists, assumed the founders functions. But revenge monarchists doomed to failure due to the loss of social support of the population, frustrated the reign of Napoleon III: the French have not been sufficient social base for monarchy. Politics of the Second Empire dispelled illusions monarchist peasantry,

CHAPTER 13. The French revolution of 1789-1794

constituting about 70% of the population. Republican gains led to a change of the constitutional regime in the actual Republican. Workers held republican beliefs. This forced monarchical majority in the assembly to abandon the idea of recovery of monarchy. Assembly had to give the Chief Executive of the title of «President of the Republic». However, granting the president broad, truly royal powers, the lack of provisions on democratic rights and freedoms of citizens, the weak power of the government should have been, according to developers, and contribute to a gradual transition to a legitimate back to the monarchical form of government. French Constitution in 1875 with amendments operated until 1940. 2. The Constitution of the Third Republic, adopted by the Constituent Assembly in 1875, was not a single document, and consists of three laws: – Law of 24 February 1875 on the organization of the Senate; – Law of 25 February 1875 on the organization of the government; – The Act of 16 July 1875 on relations between the public authorities. Constitutional acts determined the structure and competence of the supreme bodies of state power. Lack of a single constitutional regulation gave the opportunity to bypass the question of the general principles of the state system. No article is not directly claimed the republic, but a total of three of the constitutional law established a republican system, headed by the president, the par-liament as the supreme body of the legislative authorities and parliamenta-ry government. The head of state is the president, who is elected for seven years of the absolute majority of the Senate and Chamber of Deputies, United for this purpose into a single National Assembly. He could be reelected. He was granted the right of legislative initiative to proclaim laws overseeing its implementation. He could delay the meeting chambers require re-consideration project of law already agreed chambers. With the consent of the Senate, he dismissed Chamber of Deputies before the expiration of the legal term of office. The President is the head of the armed forces. He was granted the right to make appointments to all senior military and civilian positions. Legislative power is exercised by the Chamber of Deputies, is elected, my 4 years by popular vote, and the Senate consists of 75 senators and 225 lifetime senators who were elected indirectly by special electoral colleges by department for 9 years. Senate as the upper house of Parliament was a permanent

129

130

History of state and law in the foreign countries

institution. He could not be fluffed up and every 3 years, one-third. Like the Chamber of Deputies, he had the right of legislative initiative, the development of laws and control over the activities of the government. Only financial laws were first obvious. In turn submitted to the lower house and taken it. Sessions of the Chambers held simultaneously, but each of them to work independently. At one National Assembly are convened if elected President or amendment thereto. The Constitution of 1875 provided for the creation of the Council of Ministers, but its legal status has not been developed in detail. 3. The system of government of the Third Republic, established in accordance with the Constitution of 1875, has undergone significant changes in relation to the future development of French society and the intensification of the struggle of the conservative and the liberaldemocratic forces. In 1884 he adopted important amendments and additions to the Constitution of 1875: – Do not revise the republican form of government; – Representatives of the dynasties that ruled in France, denied the right of is chosen as president; – changed the order of acquisition of the Senate. The development of the state system of the Third Republic was manifested in a substantial reduction in power of the president. From the 80’s president in practice ceased to use their most important constitutional powers (the right to dissolve the House, postponement of sessions, etc.). To avoid political conflicts by tacit agreement of the main political parties in the presidency were chosen deliberately passive and non-influential politicians. Formal constitutional powers of the President were a reserve in case of a crisis or emergency situation. Evolution of the Third Republic was reflected in the work of French Chambers of Parliament. As the tightening in Parliament party struggle internal rules of the House of Deputies more restricted the freedom of the debate – the chairman at its discretion defines the order of the day, interrupted the meeting, etc. This created system of the House of Deputies and the Senate, which postponed discussion of most important and politically sensitive issues. 12. French Civil Code 1804. 1. Members of civil rights. 2. Ownership. 3. Contractual right. 4. Family Law.

CHAPTER 13. The French revolution of 1789-1794

5. Inheritance law. 1. Past the end of XVIII century revolutionary events in France, has radically changed not only the political and socio-economic life of the state, but also to encourage breaking his old feudal legal system. France now required legislation as possible to the new bourgeois relations and able to effectively regulate them. In place of the ancient royal too old French laws and customs, on the one hand, and too radical revolutionary laws and decrees, on the other, during the reign of Emperor Napoleon I Bonaparte, it’s a systematic uniform national law. The first, and perhaps the most famous set of codified law of France, was the Civil Code in 1804, went down in history as the Napoleonic Code. Written by prominent French lawyers of the time, the Code incorporates the progressive legal ideas emerging national bourgeoisie and effectively regulates different areas of civil life and work, such as the personality of persons, property and the protection of obligation and marriage and family relations, and mode of inheritance etc. Roman law underlying the Code and the actual use in practice in conjunction with the new, bourgeois legal doctrines, made in France in 1804 exemplary legal document new time, serve as a model for the preparation of civil law in many countries. This largely explains the effective action of the Code Napoleon (with various amendments) in France to this day. Code with Napoleon, as the subjects of civil law recognizes only individuals. No recognition of legal persons as subjects of law due to the fact that Napoleon was afraid of origin under the guise of legal persons of liberal, revolutionary organizations, or, conversely, conservative, feudal institutions. In determining the scope of the rights to the principles of the code proclaims equality. 2. For the maintenance of articles on the right of ownership, the greatest impact was the revolutionary laws and Roman law. The Civil Code does not provide a definition of property rights, but only lists the main powers of the owner – the use and administration of things. At the same time it proclaims the absolute character of property. Code, depending on the subject of law divided the property to: – individual (private); – state (public ownership); – communities and utilities.

131

132

History of state and law in the foreign countries

The Code regulates in detail the rights owner of land, easements, partition order of real estate between heirs, security of land, etc. In addition to ownership Code Napoleon knows and other rights: the right to other people’s stuff (usufruct, living in someone else’s house, servitude, lien), possession, holding. Code Napoleon destroyed the distinction between generic and obtained property, prohibited substitution, allowed barter and indecomposable estate assets. 3. According to the Code Napoleon «agreement is an agreement, by means of which one or more persons to commit themselves to another person or in front of several other people give something, do something or not do something». The concept of subject matter coincides with that of the subject obligations. The principles on which the contractual relationship, as follows: – The principle of consent orders a party. By agreement of the parties French doctrine understands consent wills (internal mental act). Code refers to cases of possible distortion of the will, if consent is given as a result of mistake or obtained by force or fraud; – The principle of the inviolability of the agreement: «Agreement, the legality of, consumes the law to those who entered. They can be noted only by mutual consent of the parties or for reasons due to which the law permits the cancellation. They should be made good». The code of the different kinds of contracts: gift, exchange, sale, hire. Most attention is paid to whether the contract of sale. A contract is concluded when the agreement is reached on the solution of thing and prices. Simultaneously there is a transfer of ownership to the buyer. Price items at the discretion of the parties. In addition to the grounds of the contract obligations Code applies harm. 4. Code considers marriage as a contract for the conclusion that it is necessary to fully meet several conditions: – mutual consent of the spouses (as in any contract – the principle of consent orders a party); – attainment of marriageable age (for men – 18 years for women – 15 years); – not be married;

CHAPTER 13. The French revolution of 1789-1794

– parental consent for children under a certain age (son – 25 years, daughter – 21 years). It prohibits marriage between persons who are each other to a certain degree of consanguinity or property. Code permits divorce. Its causes could be: adultery, abuse, maltreatment or serious conjugal offense, awarding one spouse to a serious and defamatory punishment, mutual and stubborn desire spouses The relationship between husband and wife, were built on the basis of power and subordination: «The husband is obliged to provide protection to his wife, the wife – obedience to her husband». The consequence of her husband’s authority is limited capacity and the almost total incapacity of married women. Incapability of woman meant that she could not independently carry any legal action. Property relations between spouses determined the marriage contract entered into prior to the commission of a marriage. As a general rule, if the marital contract was not specifically provided otherwise, the property of his wife reported to the management of her husband and he earned a profit from this property. Minor children were under the authority of parents until reaching majority or emancipation – exemption from the rule. Regarding bastards, law allowed for the possibility of their legitimation, however, only on a voluntary basis. In the late XIX – early XX century changes have been made concerning the row marriage: – eliminating certain formalities that prevent the marriage; – address the question of the marriage illegitimate child; – mother got a real right to consent to the marriage of their children. In 1816, divorce was abolished, but in 1884, restored in a new form: it was regarded as a sanction for the guilty spouse’s behavior, so the divorce by mutual consent was not restored. Changes in the relationship of parents and children were expressed in weakening of paternal authority, the empowerment of children and the rights of the mother. 5. Code allows inheritance by law and by will. However, the institutional freedom was limited and made conditional on whether the testator has left children or not. When one child could dispose at will of half of the property, with two children, one-quarter of the property. If no children, but had relatives, dating to one line, the testator disposed of three-fourths of the property, and if the relatives were going back on both lines – half of the property.

133

134

History of state and law in the foreign countries

Free of testamentary disposition of property was inherited by law. The right to inherit family had to twelfth degree fines. The nearest degree of relationship preclude further. In the absence of family members with right of succession in the property is transferred to the lived spouse. In 1917 the range was limited to the heirs of the sixth degree of kinship. 13. French Penal Code 1810. 1. The structure of the Criminal Code. 2. The first book of the Code. 3. The second book of the Code. 4. The third book of the Code. 5. The fourth book of the Code. 1. French Penal Code of 1810 is composed of general and specific parts. General part of the code generator of the first two books on general issues of sanctions, their types, criminal liability. Special parts are the third and fourth books – they contained the list of criminal acts. 2. The first book devoted to the Code of Criminal penalties (a painful and disgrace) and corrections. Code describes in detail the procedure for the application of each sentence. Painful and defamatory punishments were: death, forced labor, deportation, a penitentiary. In some cases, at the same time as the one of these punishments there was permitted use of others. To disgrace punishment included: setting the pillory in the collar, exile, loss of voting rights and the prohibition of public office (civil degradation). Code of Corrections calls prison sentences conclusion in a correctional institution, suspension of political, civil and family rights, and fine. 3. The second book of the Code establishes the basis of liability and the basis of exoneration. The latter include the crimes by force. Describes in detail the various forms of complicity: incitement, aiding. Code does not establish a minimum age of criminal responsibility. However, by persons under 16 years of age benefit from a reduction of punishment than to persons who have reached this age, many issues of criminal law have not yet been developed: not determined form of guilt, no mention of multiple offenses, the statute of limitations. 4. The third book is devoted to the Code of Crimes and Misdemeanors, separated into two types: – public offenses, which include actions aimed against state security, against the imperial constitution, against the public peace;

– private offenses, the offense is directed against the pro-individuals with an object or a person assaults or property. More than half of the articles devoted to protection of property. 5. The fourth book is devoted to police violations of the Code and punishment imposed for minor offenses are not legal and judicial and police procedures. Questions for the self-control: 1. Account the stages of the revolution in France. 2. Characterize the constitutional monarchy in France. 3. When the Declaration of the Homan Rights of 1789 was adopted? 4. The structure of the Constitution of 1791 of France. 5. Compare French Civil Code 1804 and French Penal Code 1810. Task for srs: Please, give the characteristic of Girondist Republic (First Republic), Jacobin Republic, Second Republic in France and Third Republic in France.

CHAPTER 14

State and law of German Empire

1. German alliance. 2. North German Confederation. 3. The formation of the German Empire. 4. The Constitution of the German Empire 1871. 5. German criminal code 1871 Code of Criminal Procedure 1877. 6. German Civil Code 1896.

1. In 1814 the German Confederation was formed, consisting of 34 states (kingdoms, principalities, duchies) and four free cities – Frankfurt, Hamburg, Bremen and Lübeck. German alliance was an international association of states. Each of the states included in the Union to maintain its independence. Real rule in the union belonged to Austria. The only central authority was the Federal Diet, consisting of representatives of the governments that are included in the union. Diet solutions require the unanimous consent of all its members, which paralyzed its activities in sequence: one needed a so-called «striking» the votes of one country, the decision to the Federal Diet was not accepted. So, in essence, the Federal Diet was weak incompetent authority is not able to take any major policy decision of the German states. Such a situation made quite happy Austria, interested in his do-mination of the German Confederation. Prussia, Austria, instead aspired to the role of a unifying force in Germany, adopted in 1818 customs law, which destroyed all customs border in Dane and proclaimed freedom of movement between all the provinces. In 1819, at the Vienna Conference of the German

CHAPTER 14. State and law of German Empire

Government delegates Prussia initiative to extend the Prussian customs of the law for the whole Union. Prussia made the conclusion of agreements with individual customs of the German Government. The result was the creation in 1834 of the Customs Union of the German states, which included 20 members of the German Confederation under the leadership of Prussia. Austria tried to repair under the Customs Union, the Federal Diet, but these attempts were blocked by Prussia. In 1847, at a conference of the Customs Union was adopted AllGerman bill charter, the first to apply a uniform regulation of bill circulation. Its adoption has strengthened the position of Prussia in the legal field, as the basis for the statute was put Prussian draft bill of exchange law. In 1857, to discuss the Federal Diet were two draft Commercial Code: Prussian and Austrian. Lawmakers chose as the basis for a future all-German commercial law codification of Prussian project, more concise and clear. The adoption in 1861 of All-German Commercial Code finally secured a leading role in the creation of Prussia single economic and legal environment in Germany. 2. As a result of the war with Austria in 1866, Prussia annexed Hanover, Nassau, Frankfurt and other lands, thus increasing its territory. Also in 1866 was abolished German alliance and formed the North German Confederation, which included all the North German states, and a number of western and southern German. In 1867, a constitution was adopted the North German Confederation, under which all authority passed the president of the Union – King of Prussia, the chancellor and all-Union Reichstag. The lower house of the Reichstag was created on the basis of universal suffrage. 3. In 1870, Prussia went to war with France, a triumphant ending it and concluding in 1871, the Frankfurt Peace – a contract in which were annexed Alsace and Lorraine and obtained indemnity of 5 billion francs. The unification of Germany completed the annexation of Baden, Bavaria, Württemberg, Hessen-Darmstadt, which was formalized agree-ments ratified by the parliaments of the countries concerned. January 18, 1871 at the Palace of Versailles was the passage of the King of Prussia being named German emperor by the name of William I, and thus in the center of Europe, a new state – the German Empire. Credit for the unification of Germany belongs to the head of

137

138

History of state and law in the foreign countries

government of the empire – Chancellor Otto von Bismarck. He was the greatest statesman of his era, «blood and iron» united state for over a thousand years, is fragmented. 4. Under the Constitution of the German Empire in 1871 the empire includes 22 of the monarchy and a few free cities. The head of the empire was the King of Prussia. King assigned a title impedance operator. He was the head of the armed forces, appoints officials, including the Prime Minister – the Imperial Chancellor. Emperor granted the right to appoint the members of the upper house of parliament from Prussia. The Constitution allows him to direct the Minister Empire and Prussia itself. The members of the upper house – the Union Council (Bundesrat) – appointed by the governments of the allied states. The Bundesrat is the highest of representative body, which presented the first German State. The basis of representation from each of the land was established in the constitution. Prussia was represented by 17 deputies, the other Member States had from one to six members. Joint Council with the Reichstag represented the executive and legislative power. The Reichstag was the beginning of the Constituent Assembly, and then the body to participate in legislation, approving the budget and control of the executive. The Constitution, through the Reichstag important place in the le-gislative processes, but actual power Reichstag was small. Laws adopted by Reichstag had to be approved by the Bundesrat. In cases where the project wasn’t rejected the government Bundesrat claimed the project as a decree. The imperial government was represented by a single person – the Chancellor. Cabinet Office did not exist. 5. German criminal code 1871 Code of Criminal Procedure 1877. 1. The structure of the Criminal Law. 2. Contents of crime and punishment. 3. Characteristics of the Criminal Procedure Code. 1. German criminal code in 1871 consisted of three parts: – Part I contains provisions on the division of crimes, police misconduct and violations, the responsibility of German nationals in cases of offenses abroad and other introductory provisions; – The second part describes the general issues of criminal law: the stages of a crime of complicity, of mitigating and aggravated; – The third part included the rules regarding certain types of crimes, that is was a special part.

CHAPTER 14. State and law of German Empire

2. Legal Code crimes divided into several different types: – the first place was the state – insulting the Emperor and the local rulers, counterfeiting, the base of secret organizations, participation in the union, the purpose of which is illegal application of laws or government actions; – A special chapter dedicated to crimes against religion; – Crimes against property and against the person; – police violations, including The Code describes a wide range of acts – the manufacturing of seals, violation of the rules on traveling abroad, possession of weapons, etc. The Code requires every German to assist police. German Legal Code provides for severe punishment including the death penalty, concluding in a working home, prison, putting the fortification, arrest, restriction of rights, fine. The main purpose of punishment is a deterrent. Most severely shows perpetrators state crimes, offenses against religion and against property. 3. Criminal procedure was based on the following principles: – competitiveness; – the independence of the investigating judge of the prosecutor; – assumption of defense in the preliminary investigation stage. A preliminary investigation was carried out in cases of serious crimes, in other cases, the inquiry by the prosecutor. Allow the participation of defense during the investigation, but the judge could deny lawyer from the suspects under arrest. On preliminary investigation the prosecutor referred the case to the court, to make the decision. The prosecutor and the defendant (and his back) enjoy equal procedural rights. 6. German Civil Code 1896. 1. Members of civil rights. 2. Property law. 3. Contractual right. 4. Family Law. 5. Inheritance law. 1. German Civil Code was adopted in 1896 by necessity of conductivity and unification of the law officially went into effect in 1900. In comparison with the French Code, it is contained more regulated civil relations. As acknowledged by modern scholars have written a dry, bureaucratic language, poorly understood even for the legal profession. Its main feature is its characteristic portrait build system.

139

140

History of state and law in the foreign countries

The presence of elements of feudal Junker regime in the German Empire has left its negative impact on the content of this document: to please a large German landlords cadets in the Code have been partially preserved old law, which, without doubt, is an anachronistic feudal past of this country. As subjects of civil legal Code recognizes individuals and businesses. The legal capacity of natural persons is based on the principle of the Legal Equality. The legal age is 21. At the age of 7 to 21 years The Code establishes different degrees of limited capacity, the German Civil Code refers to two types of entities: – verein (society, unions), which are defined as associations of persons with whom their constituent individuals associated membership rights and responsibilities. These alliances can be either economic (pursuing profit), or non-profit (pursuing cultural, scientific and other similar purposes); – institutions that are formed by wills of individuals that commit to an end certain amount of wealth. The Code does not define the content of the legal capacity of legal persons. It stems from the fact of their education. 2. The Code divides all things on land and movables, strictly distin-guishing between the legal regime of movable and immovable property. German Civil Code is a series of property rights: the rights of ownership, possession, use other people’s things (land and personal servitude, usufruct, the right to development), the right to a certain value from another thing (chattel mortgage, mortgage estate, etc.), and right to purchase of a thing (the right to property purchase, the right of hunting, fishing). The main real right is the right to property. The Code opens it to read as follows: «The owner can handle things on your own thing and exclude others from any influence on it». Thus laid emphasizes the freedom of private property. However, The Code restricts the rights of the owner. 3. Certain obligations given in section 241 of the code: «In view of obligation, the creditor is empowered to require the debtor to provide. Provision could also consist in abstinence». The most common way of Obligation is a legal contract. The Code does not define the contract. However, you can highlight the essential features of the agreement:

CHAPTER 14. State and law of German Empire

– the contract is understood as the legal relationship established between many persons; – the contents of the contract can be both positive action and refrain from such. Code’s contractual relationship is based on the principle of freedom of contract. Giving individuals the freedom to establish obligations establishes the conditions of their freedoms: – compliance with the laws of the contract; – capacity of persons entering into a transaction. German Civil Code regulates more than 20 types of contracts – sale, lease, exchange, etc. As the base of the obligations The Code also recognizes the tort. In general, damage is the responsibility of the person responsible for the reason. The Code does not recognize property compensation as substantial harm. 4. The Code recognizes the only legal form of marriage a civil marriage. Marriageable age for women is 16 years, for men – 21. In addition to achieving marriage legal capacity necessary condition, marriage is to have mutual consent to marriage. For minors require parental consent. Obstacles to the validity of marriage are: – a close relationship; – non-dissolution of first marriage; – Women were not allowed to remarry within 300 days from the date of termination of the previous one. Divorce is allowed only in cases specified by law. Grounds for divorce are recognized: – adultery; – attempt to kill the other spouse; – malicious abandonment; – flagrant violation of marital duties; – serious illness. Property relations between spouses are determined by the marriage contract. If the parties have their marriage contract established a regime remains separateness title to the property of the spouses. The relationship between parents and children is based on the principle of parental authority of father. Parental authority goes to the mother after the death of his father, or deprivation of parental authority. 5. In inheritance, the law aims to strengthen the Code of lines, a group of relatives who descended from a common ancestor. First line

141

142

History of state and law in the foreign countries

is des-cending hereditary of second line – parents and their relatives descending, third – grandparents and their downstream relatives, etc. Special situation is served by the surviving spouse. In the presence of the heirs of the first two lines, and the grandparents he granted the right to own only a portion of the inheritance of the deceased, if the relatives of the first and second line, grandfather or grandmother not to the surviving spouse passed all the inheritance. In inheritance, bequest The Code is based on the principle of freedom of wills. In order to protect the interests of legitimate heirs established that non-limiting testamentary freedom. This limitation was mandatory share. Questions for the self-control: 1. What means German alliance? 2. Characterize the North German Confederation. 3. Account the stages of the formation of the German Empire. 4. Please, tell about the Constitution of the German Empire 1871. 5. Compare the German criminal code 1871 and the Code of Criminal Procedure 1877. Task for srs: Please, give the structure of the German Civil Code 1896.

CHAPTER 15

Japanese Empire and China in XIX-early XX centuries

1. State system to the 60th XIX century. 2. Meiji Revolution. 3. Bourgeois reforms of 60th-80th XIX century. 4. The Constitution of 1889. 5. China in the XIX-early XX centuries.

1. Until the middle of the XIX century Japan was a centralized feudal absolutist state long range. The ruler is the emperor, but his power was only nominal. The present military-feudal ruler since the XII century was shogun (general) – the highest official, commander and chief of the entire apparatus of state governance, concentrated in the hands of executive and the legislature, as well as fiscal function. Shogun was a hereditary position and traditionally mixed up representatives of the largest feudal houses. Support of the shogunate was bushi class – warrior-nobles. Its higher layer is vassals of the shogun’s personal, lower – small military nobility, samurai. In the Middle Ages the government was installed four estates with strict regulation of estate: samurai, peasants, artisans, merchants. Feudal organization tenure generally considered to the presence of a large number of small farms owned by the feudal lords who ruled by vassals of his possessions. The peasants gave the princes as levies and

144

History of state and law in the foreign countries

duties, more than half the crop. The country is continuously peasant unrest and rebellion. Gradually, the village was formed layer of «new landlords», which was formed from among the merchants, moneylenders, rural elite, partly Samurai. Ask factory – cotton, silk-weaving. Capitalist manufacture appeared in the late XVIII – the first half of XIX century. However, its development retarded feudal regulation, high taxes, and the narrowness of the domestic market. Under pressure from the U.S. and European countries, the Japanese government was forced to abandon the policy of self-isolation. In 1853, under a rose-corner of force Japan signed a trade agreement with the USA on their terms. Soon, similar treaties were signed with the European powers. There was a threat of turning the country into vassal. All this is exacerbated internal crisis led to an anti-feudal further struggle and national liberation movements. Against the existing order were the main social classes of Japanese society: peasants, workers, artisans, commercial and thinking bourgeoisie, samurai, some princes. There were formulated motion tasks: to overthrow the shogunate and restore power of Emperor on behalf of the necessary reforms. 2. In October 1867, Japan began the so-called revolution Meiji Isin (update Meiji enlightened government). Since the industrial bourgeoisie still in its infancy and will not lay down as an independent political force, the movement led by lower samurai, which is highly influenced by bourgeois, moderately radical circles of the nobility associated with the imperial court. The struggle for the overthrow of the shogunate was conducted under idea of restoring the authority of the emperor. Was declared the gathering military forces supporting the emperor. On behalf of the Emperor in January 1868, leaders of the movement to overthrow the government announced the Shogun and education of the new government headed by the emperor. Shogun moved against them loyal troops, but they were defeated. In May 1868 the shogun surrendered. Power passed into the hands of the princes and the samurai – the supporters of the emperor. It was officially announced the restoration of the imperial power. As a result of this revolution was to abolish the feudal system and formed a centralized bourgeois-landlord state. Fragmented and lack of organization of the peasant movement,

CHAPTER 15. Japanese Empire and China in XIX-early XX centuries

the relative weakness of the bourgeoisie led to an incomplete character of this revolution. However, the country embarked on the path of bourgeois development, as evidenced by the start of the economic and political reform. 3. In the sphere of economic relations, the following reforms: – disbanded guild monopolies – abolished the shop and guilds, and also associated with the regulation of trade and handicrafts; – declared bourgeois freedoms: freedom of sale of land, the profession and place of residence, etc.; – Enter the formal equality of all classes before the law; – establish the right of private ownership of land (all land owners became its owners); – introduced a single tax on land, replacing the numerous feudal Far taxes; closed all internal customs; introduced uniform for the whole country units. In 1872, a law on universal primary education was adopted. In the political sphere: – unequal treaties were annulled; – reorganized the army on the German model, and the fleet – on English was introduced conscription, samurai kept a privileged right to hold officer positions. In the field of public administration: – Eliminate the principality and instead created the prefecture; – instead of the four established three classes, comprised of former princes and the court aristocracy, nobility, estate of a simple people, which include commercial and industrial bourgeoisie. Ministries were established by individual branches of administration, and the apex body of executive and administrative authority created under the emperor cabinet. In this appointment were conducted on a competitive system. Instead of the old boundaries of feudal principalities established administrative- territorial division of the provinces. 4. In 1889, he published a constitution, drawn up on the Prussian model and legally consolidated the alliance between the monarchy, the higher bureaucracy, the landlords and the big bourgeoisie. Emperor as head of state vested exclusively privileged – to declare war and peace, to make treaties, to enter a state of siege, concentrating in the hands of emergency powers, as commander in chief of Army – establishes the structure and strength of the armed forces, including

145

146

History of state and law in the foreign countries

the personal composition, in the state civil control – to determine the structure of ministries, appoint, dismiss, determine salaries of all officials. The emperor appointed the head of the executive – the MinisterPresident, and according to him – the rest of the ministers. The legislative power is exercised jointly with the emperor by Parliament. The emperor summoned and closed parliament postpones parlia-mentary sessions, dissolve the lower house – the House of Deputies. Laws passed by Parliament, could not be made public and acted upon without his approval and signature. The Parliament consists of two houses: – House of Peers, which included members of the imperial family, and persons appointed by Emperor; – Chamber of Deputies, which were of who won the election. Both the House and the government granted the right of legislative initiative. The bills were discussed and approved by the chambers sepa-rately absolute majority. A separate chapter has been devoted to the constitution rights and obligations of citizens. There were proclaimed the inviolability of pro-perty, freedom of speech, press, assembly and association, equal access to the civil and military posts, correspondence, etc. The right to vote was granted only men over 25 years old. 5. China in the XIX – early XX centuries. 1. Qing Empire in XVII – XVIII centuries. 2. Taiping rebellion. 3. Proclamation of the Republic of China. 1. In 1644, China took power Manchu Qing Dynasty. When the Qing dynasty, which was based in large Manchu and China, took feudal despotic monarchy, there was established with a strong army and well-established bureaucratic branched state apparatus. Chinese emperor concentrated in the hands of the supreme legislative, judicial and administrative powers, and had exclusive right sacrifices and prayers, «Sky High». He was an absolute monarchy, hereditary throne replaces on the principle of primogeniture, but before his death, could choose his successor any of his sons, and if there were none, then any of the princes of royal blood. The highest state authorities were Qing Empire Secretariat and the Military Council. The supreme executive power is exercised, as before, by six agencies (orders) officials, tax (financial), ceremonies (rituals), military,

CHAPTER 15. Japanese Empire and China in XIX-early XX centuries

criminal sanctions, and public works. Local governance in China in the Qing Dynasty is characterized by a strong government. The country is divided into province, and the latter, in turn, divided into regions, and counties. Each province is headed by two governors, military and civilian, guided by the governor. Regions, districts and provinces chiefs ruled by the officials and elders. The judiciary at all levels has been connected with the administrative. 2. Qing dynasty pursued a policy of isolation of the country from the outside world, but since the end of XVIII century. European capitalist states amplified pressure on China in an effort to «discover» it at any cost. Britain in the first place has attempted to gain new markets and sources of raw materials. Since 1839, the British launched a military action against China, which initiated «Opium War» (the war lasted from 1840 to 1842). State bureaucracy Qing Empire was greatly weakened by corruption and bribery; army, equipped with obsolete weapons and had a bad training, was not able to effectively defend overgrown after consequence of wars of conquest empire, was no match for first-class armed ground forces and the navy of England. In August, 1842, in Nanjing, China signed an unequal treaty with England, and in 1844 similar agreements have been concluded with China, the U.S. and France. By these treaties the Qing government pledged to open five ports of English commerce, to pay a huge contribution, set preferential tariffs, as well as foreigners were given a number of privileges: the right of extraterritoriality, the right to the concession, the most favored. China’s defeat marked the beginning of its transformation into the Colonial country. Foreign commodities undermined artisan production increase the tax burden, introduced various arbitrary exactions. One consequence of the «Opium War» was the Taiping rebellion, which in 1850 raised the religious sect of the Taiping (legal Christian organization). During the uprising was created disciplined rebel army and declared the establishment of the «Heavenly State great prosperity». After a series of major military revolts Taiping in March 1853 captured Nanjing, which renaming Heaven capital. In Nanjing leaders of the uprising published «Land System of the Heavenly Dynasty», is a policy document transformation of Chinese society and the state. It was founded on the idea of ​​«peasant communism», on the basis of equalization of all members of society, with the distribution of land to the equalizing basis, the liberation of

147

148

History of state and law in the foreign countries

peasants from rent placing, granting equal rights to women, public content of the disabled, anti-corruption measures and Land and other basic means of production were nationalized, a large cash or other big property but were forbidden. In practice, social and economic policies to reduce the Taiping reduced rent for land from peasants and transcriptions large section of the tax burden on landlords and the rich. Back in 1856 among the top leadership of the Taiping feud began in 1857 in the part of the rebels went to the south-western provinces. Then (since 1862) in the civil war took an active part Anglo-French invaders on the side of the Qing government, and in July 1864, the capital was taken Nanjing Taiping Qing troops. With the capture and the death of the leaders ceased to exist and the Taiping state. 3. Taiping rebellion and «Opium War» shocked Qing China and prompted the ruling circles to recognize the need for reform. The structure of government had been certain pre-education: – established Home Office for Foreign Affairs; – abolition of the two governors in the provinces (military and civil), and the local power was concentrated in the hands of governors; – provincial committees were fixed to restore order. In the 1860’s – early 1880’s Emperor’s policy of «self-empowerment» was adopted, the main purpose of which is to strengthen the existing regime. Proponents of this policy were in favor of closer cooperation with foreign powers, borrowing of a foreign experience to modernize the armed forces, creating its military industry, which has contributed to a penetration of China by foreign powers. Using the rights and privileges of foreigners are trying to increase their political influence. As a result, in the 60’s – 90’s XIX c. on a wave of antiforeign performances, there was the transition to the anti-government. At the same time, began to form the first Chinese capitalist enterprises. Initially, it was state-owned or official-private factories, arsenals and workshops, built provincial authorities at public expense, and the forced participation of local merchants and landlords, and then began to develop entrepreneurship. The leading force in the emerging national bourgeoisie became major officials and landowners. Capitalist system in China was making its way into the extremely difficult conditions of domination of feudal relations in agriculture, and the arbitrary restrictions imposed by the authorities, competition, and foreign capital.

CHAPTER 15. Japanese Empire and China in XIX-early XX centuries

China’s defeat in the war with Japan (1895) and the actions of the Western countries have stepped up activities of the patriotic forces. Bourgeois placing Reform Party, led by Kang Juvey and represent interest of the national bourgeoisie, was in favor of modernization of the country, for the reform by the imperial power. In June 1898, it has ensured that the Emperor Guangxu (Zai Tian) issued a decree «On establishment of the main line of public policy», and then was attracted a group of young reformers – students and supporters Yuveya Kahn to design a series of radical decrees on economic issues, education, work of the state apparatus. This period of 1898 went down in history under the name of China’s «One Hundred Days of Reform». Reform objective aimed at creating conditions for the development of Capitalist China, but were published in great haste, sabotaged court circles and bureaucracy and to the left on the paper. In September of that year, the Empress Dowager Cixi (Yehonala) made a palace coup. The emperor Guangxu was arrested, his orders canceled and leaders executed without trial. The reactionary policy of the Qing Dynasty caused outrage Key Thai people. In 1905 – 1908 years on a wave of popular uprisings. In 1910, the number of peasant uprisings exceeded the number in previous years. In October 1911, an uprising in the city of Wuchang troops ended in victory. Xinhai Revolution began, which led to the overthrow of the monarchy and the proclamation of the republic. In February 1912 the Qing dynasty abdicated and then Nanking assembly of delegates elected provisional president of the Republic of China Yuan Shikai, who in August 1913 established in the country of his military dictatorship. Questions for the self-control: 1. Give the characteristic of the state system of China in 60th XIX century. 2. Tell about Meiji Revolution. 3. Analyze the bourgeois reforms of 60th – 80th XIX century. 4. The structure of the Constitution of Japan 1889. 5. China in the XIX – early XX centuries. Task for srs: Please, write an essay about China in XIX-early XX centuries.

149

PART II

Tests

Question #1 V1 Specify the names of the four countries of Eastern despotism of the Ancient East. 1 India, China, Egypt, Babylon; 0 Thailand, Indochina, Iraq, Iran; 0 Pakistan, Iran, Iraq, India; 0 Pakistan, Babylon, Egypt, Thailand; 0 China, Iran, Egypt, India; Question #2 V1 1 0 0 0 0

Define names of two senior government officials in Athens. The jury, the panel of ephors; The Council of Five Hundred, the Council of Elders; National Assembly, Council of Five Hundred; Council of Five Hundred, the jury; National assembly, trial by jury.

Question #3 V1 1 0 0 0 0

What bodies were part of the government in ancient Sparta? The Council of Elders, Council of Five Hundred; The national assembly, trial by jury; The Council of Elders, gelieya; The national assembly, Gerus; Gelieya, Gerussia.

Tests

Question #4 V1 1 0 0 0 0

Name most famous monument of ancient Rome rights. The laws of Draco; Laws 12 tables; The law of the land ownership; The Law on the Management Board; The hinges.

Question #5 V1 1 0 0 0 0

Define three main elements that make up the ownership in Roman law possession, use and disposal; acceptance, possession, failure; taking, holding, disposition; the acquisition, possession, use, the acquisition of, failure.

Question #6 V1 1 0 0 0 0

Enter the main form of feudal property. river property; forest ownership; land; ownership of the property; ownership of the means of production;

Question #7 V1 1 0 0 0 0

Recount names of the three estates in feudal France. nobility, clergy, peasants; the clergy, the nobility and the citizens; nobility, townspeople and peasants; the clergy, the nobility, the Diggers community; the clergy, community Diggers, townspeople.

Question #8 V1 Name estate-representative body of France. 1 Parliament; 0 States-General;

151

152

History of state and law in the foreign countries

0 0 0

Director; National Assembly; Supreme Court; Question #9

V1 1 0 0 0 0

Under which French king was finally formed an absolute monarchy. under Philip I; under Francis I; under Philip II; under Louis XIII; under Louis XIV.

Question #10 V1 1 0 0 0 0

In which year in England, was signed the «Magna Carta.» 1210; 1212; 1214; 1213; 1215.

Question #11 V1 1 0 0 0 0

Whom in ancient Rome was called the tribune of the people? Leaders of the uprising plebeians; President of People kommitsy; Advocates the patricians; Crime scene investigators; Those with the power to protect the interests of the plebeians.

Question #12 V1 1 0 0 0 0

Define two kinds of feudal rent. rents, labor obligations; tithe, corvee; corvee, dues; lordly tithe, tithe; iqta, mule.

Tests

Question #13 V1 1 0 0 0 0

Where occurred the first bourgeois revolution in Europe. Belgium; Germany; England; France; Austria.

Question #14 V1 1 0 0 0 0

How many colonies were in North America. 7; 9; 13; 12; 10

Question #15 V1 1 0 0 0 0

Define name chambers of Parliament. House of Lords, House of Commons; Diggers House, the House of Commons; Chamber of diggers, the House liberals; Chamber radicals House liberals; House of Lords, the House of diggers.

Question #16 V1 1 0 0 0 0

Name three major department management in ancient Egypt. internal affairs, military, financial, the military, diplomatic, financial, war, interior, and diplomatic; the financial, internal affairs, public works; financial, military, and public works.

Question #17 V1 Define names of three prominent reformist government in ancient Athens. 1 Ephialtes, Aristotle, Solon; 0 Solon, Diogenes, Pericles;

153

154

History of state and law in the foreign countries

0 0 0

Ephialtes, Octavian, of Draco; Solon of Draco, Cleisthenes; Ephialtes, Pericles, Cleisthenes. Question #18

V1 1 0 0 0 0

Name reformer who formed central comitia in ancient Rome. Octavian; Servius Tullius; Caesar; Anthony; Sulla.

Question #19 V1 1 0 0 0 0

Define ancient monument of law in ancient India. Manu; Law of Caracalla; Law of hinges; Hammurabi Code of Law; Laws of Dracont.

Question #20 V1 1 0 0 0 0

In what case is liable to Roman Law? of the contract; from the findings; of luggage; of the donation; of ownership.

Question #21 V1 1 0 0 0 0

Which of these barbaric Frankish really think? Allemanskaya; Gothic; Salic; Bavarian; Burgundy.

Tests

Question #22 V1 1 0 0 0 0

In which was drafted text of the «Magna Carta»? 1213; 1214; 1212; 1215; 1217.

Question #23 V1 1 0 0 0 0

Which body elected senators in ancient Rome? Board of censors; Board of consuls; Board of Pretoria; Board aediles; College of Quaestors.

Question #24 V1 1 0 0 0 0

Define government reforms in France during the absolutism. Voltaire; Richelieu; Diderot; Fouquet; Mazarini.

Question #25 V1 1 0 0 0 0

In which year in Germany adopted the «Golden Bull»? 1341; 1356; 1438; 1429; 1568;

Question #26 V1 Define four games in the first stage of the English bourgeois revolution. 1 diggers, Presbyterians, Independents, levelery; 0 felons, diggers, Independent, levelery;

155

156

History of state and law in the foreign countries

0 0 0

radicals, Girondins, levelery liberals; the Presbyterians, the Jacobins, diggers, radicals; diggers, cordillera, levelery, Independents. Question #27

V1 Which constitutional document proclaimed the victory of the North American colonies? 1 «Articles of Confederation 1781»; 0 «The Bill of Rights of 1791»; 0 «Declaration of Independence of 1776»; 0 «Declaration of Independence of 1789»; 0 «Articles of Confederation of 1791». Question #28 V1 1 0 0 0 0

How called the upper house of the Parliament of England? The Senate; The Council of State; The Director; The House of Commons; The House of Lords.

Question #29 V1 1 0 0 0 0

Define two major U.S. political parties. a socialist, communist; democratic, republican; the liberal, republican; the liberal, republican; the democratic, liberal;

Question #30 V1 1 0 0 0 0

Define term of the House of Representatives of the U.S. Congress. 2 years; 3 years; 4 years; 5 years; 6 years.

Tests

Question #31 V1 1 0 0 0 0

How called the Council of Elders in Ancient Greece? people’s Assembly; the Senate; bule; gelieya; appeals.

Question #32 V1 1 0 0 0 0

Define land titles granted to slaves in ancient Rome? prony; lena; peculium; of the province; feuds.

Question #33 V1 1 0 0 0 0

What is a Gestapo? State secret police; Nazi political intelligence; The authority of the criminal police; Imperial Chancellery; Units, created to protect the leaders of the Nazi Party.

Question #34 V1 1 0 0 0 0

In which was adopted French civil code? 1790; 1804; 1805; 1796; 1811.

Question #35 V1 Define name German Chambers of Parliament in 1871 the constitution? 1 Bundesrat, Reichstag; 0 House of Lords, House of Commons;

157

158

History of state and law in the foreign countries

0 0 0

The Bundestag, the Bundesrat; The Bundesrat, the Bundestag; Reyskhrat, Landtag. Question #36

V1 1 0 0 0 0

According to what system written German Civil Code 1900? the institutional framework; pandektnaya system; a mixed system; casual system; alphabet.

Question #37 V1 1 0 0 0 0

How called the Lower House of the Parliament of England? The Senate; The House of Lords; House of Representatives; The House of Commons; The Bundestag.

Question #38 V1 1 0 0 0 0

How called the supreme legislative body of the United States? The House of Lords; The House of Representatives; Forum; The Senate; Congress.

Question #39 V1 1 0 0 0 0

Which types of legal entities are in the GC France in 1804? the corporation; joint stock companies; cartels and syndicates; shops and textiles; not represented at all.

Tests

Question #40 V1 1 0 0 0 0

Define date of adoption of the Constitution of the German Empire. 1791; 1789; 1835; 1871; 1900.

Question #41 V1 1 0 0 0 0

Define country, which is considered the birthplace of fascism. England; France; Germany; Japan; Italy.

Question #42 V1 1 0 0 0 0

In which year there was a bourgeois revolution in Japan? 1860; 1865; 1868; 1870; 1871.

Question #43 V1 1 0 0 0 0

What is understood in the traditional common law, the term «felony»? substitution of criminal punishment by a fine a minor offense; category of serious crimes, to mitigate the guilt; the repetition of the same offense.

Question #44 V1 Who is the head of government of Germany under the constitution of 1949. 1 Prime Minister; 0 The Fuhrer;

159

160

History of state and law in the foreign countries

0 0 0

Federal Chancellor; President; King; Question #45

V1 Distinctive feature which legal system is the separation of the right to private and public? 1 Roman-Germanic law; 0 Islamic law; 0 Common law; 0 Scandinavian law; 0 Customary law of Africa. Question #46 V1 1 0 0 0 0

Shumery – is: slaves in ancient Egypt; the most ancient people of Mesopotamia; free population in Babylon; is one of the castes in ancient India; slaves of the Arab Caliphate.

Question #47 V1 1 0 0 0 0

Which class in ancient India belonged to the upper castes? Tarkhans; Tarkhan and Vaishyas; Vaishya and Sudra; Sudras and Brahmins; Brahmins and Kshatriyas.

Question #48 V1 1 0 0 0 0

Imperiya Maurya – is: part of the Holy Roman Empire; empire in Mesopotamia; empire in China; empire in ancient India; empire in Japan.

Tests

Question #49 V1 1 0 0 0 0

Highest authority for reforms of Solon in ancient Greece is: National Assembly; Council of Five Hundred; Board ephors; Trial by jury; Collection of patricians.

Question #50 V1 1 0 0 0 0

From how many representatives of several genera was the Roman Senate? 100; 150; 200; 300; 350.

Question #51 V1 1 0 0 0 0

Who such patricians in Rome? artisans, merchants; higher nobility; slaves, peasants; farmers; foreigners.

Question #52 V1 1 0 0 0 0

Who such plebs in Rome? simple free inhabitants; higher nobility; slaves; freedmen; foreigners.

Question #53 V1 Who author works «Institutions» in Rome? 1 Paul; 0 Papinian;

161

162

History of state and law in the foreign countries

0 0 0

Modestinus; Ulpian; Guy. Question #54

V1 1 0 0 0 0

What is does «sinaykizm» in Greece?  a system of contracts; cancellation of debt bondage; form of criminal procedure; unification of the Ionian tribes; an oppressive regime.

Question #55 V1 1 0 0 0 0

During which century the Franks to Christianity? at the end of 5th century BC; at the beginning of the 5th century BC; in the late 6th century BC; in the early 4th century BC; in the middle of the 5th century BC.

Question #56 V1 1 0 0 0 0

Rights and responsibilities of the Frankish kings. collect taxes, to dissolve militia, appointed by Parliament; to make laws, raise taxes, to convene the national assembly; to issue and change the law to repair the High Court; convene militia, fix the high court, to collect taxes; all the answers are correct.

Question #57 V1 How called people who for military service were rewarded – the ground (on the reform of Charles Martel)? 1 recruits; 0 beneficiaries; 0 mercenaries; 0 feudal lords; 0 carabinieri.

Tests

Question #58 V1 1 0 0 0 0

Early feudal legal codification of the Germanic peoples. Barbaric truth; KnuthTruth; Russian Truth; Edelberg Truth; Polish Truth.

Question #59 V1 1 0 0 0 0

How called a penalty for murder on the Salic Truth? crank; hostility; one year; veera; blood money.

Question #60 V1 1 0 0 0 0

How called «judgment of God», which was to test the party in the process? sharia; adat; ordalia; inquisition; sacred court.

Question #61 V1 1 0 0 0 0

Servy in France – is: slaves; a judge; serfs; free population; of the feudal lords.

Question #62 V1 Who in the middle of the 13th century has conducted three major reforms – the judicial, military, and coinage? 1 Philip Augustus;

163

164

History of state and law in the foreign countries

0 0 0 0

Charles Martel; Henry II; Louis IX; Louis X. Question #63

V1 1 0 0 0 0

Who entered the House of Commons in Parliament 14.? clergy and lords; knights and townspeople; clergy; lords; townspeople and peasants.

Question #64 V1 1 0 0 0 0

What is Jacquerie? french peasants revolt; war of the Roses in England; peasant uprising in China; one of the stages of the French Revolution; the dictatorship of the French Revolution.

Question #65 V1 1 0 0 0 0

How translated from the Latin word «Inquisition»? interpretation; test; torture; the investigation; the divine court.

Question #66 V1 1 0 0 0 0

What is kutyumy is in France? inkvitsionny court; God’s judgment; burned at the stake; the local authority; rule of customary law.

Tests

Question #67 V1 1 0 0 0 0

Kurfyurst in Germany – is: chairman of the county; the elder of the community; interpreter of the Roman law; the prince-elector; the title of mayor of the Free City.

Question #68 V1 1 0 0 0 0

Account the social classes in ancient Russia: slaves; special category of merchants; free peasants; warriors; workers.

Question #69 V1 1 0 0 0 0

Basic legal source of Arab Caliphate? Yassa; Talmud; Synod; Koran; Bible.

Question #70 V1 1 0 0 0 0

Who headed Japan in XVII century? shogun; ronin; samurai; daimyo; emperor.

Question #71 V1 What is dominion? 1 the title of commander of the Roman legions; 0 the emperor of Rome;

165

166

History of state and law in the foreign countries

0 0 0

in the province of Rome; union; self-governing territory. Question #72

V1 1 0 0 0 0

When was adopted the new constitution of England, named «gun control»? 1649; 1659; 1650; 1655; 1653.

Question #73 V1 How called the act signed by William of Orange in 1689 and became the legal basis for English constitutional monarchy? 1 «Gun control»; 0 «Bill of Rights»; 0 «Triennial Act»; 0 «Act dispensation»; 0 «Petition of Rights». Question #74 V1 Document, which set two important rules: contra signature and tenure of judges? 1 «Gun control»; 0 «Bill of Rights»; 0 «Triennial Act»; 0 «Act dispensation»; 0 Habeas Corpus Act. Question #75 V1 1 0 0 0 0

Which city was the first capital of the United States? New York; Washington; Boston; Philadelphia; Jamestown.

Tests

Question #1 V1 1 0 0 0 0

Уро­вень 2

What is the essence of the theory of Sharle-Loui Montesquieu?   absolute monarch;   strengthening of the executive power;   separation of powers;   unity of power in one person;   sacralization of the monarch.

Question #2 V1 1 0 0 0 0

How Senate formed by the U.S. Constitution? elected by all citizens; shall be elected by the Congress; shall be elected by the electors; appointed by the President; elected by the state legislatures.

Question #3 V1 1 0 0 0 0

Term of U.S. President: 3 years; 4 years; 5 years; 6 years; 7 years.

Question #4 V1 1 0 0 0 0

When Napoleon was proclaimed as emperor? 1807; 1805; 1803; 1804; 1801.

Question #5 V1 Define main categories of the population in ancient Babylon: 1 Avilum, mushkenum

167

168

History of state and law in the foreign countries

0 0 0 0

Redum, barium Dekkum, lubuttum Tamkar, Kshatriyars Avilum, Vaishya Question #6

V1 1 0 0 0 0

What was the nature of the Le Chapelier law in France? the abolition of feudal privileges; the prohibition of strikes; the establishment of the dictatorship of the Girondins; the restoration of absolute monarchy; the abolition of feudal property.

Question #7 V1 1 0 0 0 0

Define the signs of bourgeois law: continental and Asian; the North American mainland; local and Saxon; the Latin and Saxon; continental and Anglo-Saxon.

Question #8 V1 1 0 0 0 0

Who is the head of government in the U.S.? Prime Minister; Speaker of the Senate; Vice-President; President; Secretary of State.

Question #9 V1 1 0 0 0 0

When England became Independents republic? 1649; 1959; 1650; 1655; 1653.

Tests

Question #10 V1 1 0 0 0 0

What is a reception of Roman law? perception of the norms of canon law; perception norms of Roman law; application of customary law in Rome; division of the Roman law on the industry; division of the Roman law on private and public.

Question #11 V1 1 0 0 0 0

How many amendments there are in the U.S. Constitution? 10; 7; 16; 27; 50.

Question #12 V1 1 0 0 0 0

How many classes of the population (varnas) was in ancient India? 4; 5; 7; 9; 13.

Question #13 V1 1 0 0 0 0

Dzhentri in England – is: free peasantry; small general judge; new nobility; serfs; people free cities.

Question #14 V1 What is a fatwa in Islamic law? 1 muslim community; 0 another name for the community Shiites

169

170

History of state and law in the foreign countries

0 0 0

practices are not prohibited by the rules of Islam; set of mating sharia; written opinion of Muslim jurists, theologians. Question #15

V1 1 0 0 0 0

Who are Shiites? caste in India; interpreters of sharia; military caste Arabs; supporters of one of the branches of Islam; arabs living in the holy places of origin of Islam.

Question #16 V1 1 0 0 0 0

Define two major U.S. political parties: socialist, communist; democratic, republican; liberal, republican; democratic, liberal; communist, republican.

Question #17 V1 1 0 0 0 0

Who is the speaker-President of the Senate of the U.S. Congress? Vice-President; President; Judge of the Supreme Court; Secretary of State; Attorney-General.

Question #18 V1 Whose name is associated with unification of Germany named «blood and iron»? 1 Emperor William I; 0 Chancellor Otto von Bismarck; 0 Chancellor Adolf Hitler; 0 Kaiser Wilhelm II; 0 Prince Leopold of Hohenzollern.

Tests

Question #19 V1 1 0 0 0 0

Which bodies were parts of the government in ancient Sparta? Gerus, board ephors, Appeals; Council of Elders, the national assembly, the board of five hundred; Jury trial, the council of Five Hundred, Gerus; Board ephors, the council of Five Hundred, the national assembly; Council of Five Hundred, the jury, the panel of ephors.

Question #20 V1 1 0 0 0 0

Which body in the United States serves as the body of constitutional review? Constitutional Court; Supreme Court; Claims Court; Attorney General; Constitutional Council.

Question #21 V1 How called liquidation process and the elements of the fascist system of government in post-war Germany? 1 revanchism; 0 repair; 0 denazification; 0 nationalization; 0 occupation. Question #22 V1 1 0 0 0 0

Who were Peregrines are in Rome? artisans; higher nobility; farmers; foreigners; slaves.

Question #23 V1 What system based on the French Civil Code Napoleon in 1804? 1 institutional system;

171

172

History of state and law in the foreign countries

0 0 0 0

pandektnaya system; a mixed system; casual system; alphabet. Question #24

V1 1 0 0 0 0

What is this entail? the highest position in the army; the eldest son to inherit land; local authority; procedure for making laws; collection of penal laws.

Question #25 V1 1 0 0 0 0

How translated the term «ordeal»? investigation; custom, the king’s permission; interpretation of the law; inquisition; God’s judgment.

Question #26 V1 1 0 0 0 0

Banalitet in feudal France – is:  people’s Assembly; union of merchants;  union craftsmen of the same profession;  monopoly on mills and salt marshes;  farming community.

Question #27 V1 1 0 0 0 0

Term of U.S. Vice President? 3 years; 4 years; 5 years; 6 years; 7 years.

Tests

Question #28 V1 1 0 0 0 0

Which first king of England signed the «Magna Carta»? John of England; William the Conqueror; Richard the Lionheart; Henry Plantagenet; William Orange.

Question #29 V1 1 0 0 0 0

What represented Carolina 1532 in Germany? a set of rules lens law; a set of norms of canon law; a set of family law; a set of rules of criminal law; a set of rules of inheritance law.

Question #30 V1 1 0 0 0 0

Competency of Louis IX Paris parliament: laws; trial; financial; executive; church.

Question #31 V1 1 0 0 0 0

Nom – is: legislative body in ancient China; category of the population in ancient Egypt; legal norm in ancient India; unit in the Athens State; area in ancient Egypt.

Question #32 V1 Nomarh – is: 1 one of the highest officials in ancient Greece; 0 head of the field in Egypt;

173

174

History of state and law in the foreign countries

0 0 0

elder Roman kind; courts in ancient Babylon; elders of the slaves. Question #33

V1 Who considered himself as «true equalization Levellers» during the English bourgeois revolution XVII century? 1 independents; 0 sans-culottes; 0 holders; 0 diggers; 0 grants. Question #34 V1 1 0 0 0 0

Despotiya – is: organization of slave-owning democracy in ancient Greece; form of government of the feudal states of medieval Europe; people in ancient Rome; polity slave states of the East; form of government in ancient Sparta.

Question #35 V1 1 0 0 0 0

Who was nubanda in the Ancient East? in Ancient Egypt – Priest performing judicial functions; official in ancient Egypt; in feudal China – the largest landowner; the head of the village community; vizier in ancient Babylon.

Question #36 V1 1 0 0 0 0

The period of punishment of slaves in Law of Hammurabi? 2 years; 3 years; 5 years; 10 years; 7 years.

Tests

Question #37 V1 1 0 0 0 0

How sounds formula of talion? «one – for all and all – for one»; «an eye for an eye, a tooth for a tooth»; «recognition – the queen of evidence»; «ignorance of the law is no excuse»; «everything is allowed that is not forbidden».

Question #38 V1 1 0 0 0 0

What is casuistic nature of legal norms? rules coming from the religious right; standards coming out of each case; norms emanating from primitive society; moral and ethical standards; standards recommendatory nature.

Question #39 V1 1 0 0 0 0

Oriental despotism – is: dual monarchy; limited monarchy; absolute power of the monarch; republican form of government; aristocratic republic.

Question #40 V1 1 0 0 0 0

What represents Veda? in the State of francs – the person who received the land from the king; literary monuments of religious content in ancient India; free population of the laws of Hammurabi; set of rules of the secular nature in ancient India; person in ancient Rome that established the state policy by divination.

Question #41 V1 Varna – is: 1 local authority in ancient Egypt; 0 category of the population of Arab Caliphate;

175

176

History of state and law in the foreign countries

0 0 0

customary rule Frankish state; social groups in ancient Babylon; major social groups in ancient India. Question #42

V1 1 0 0 0 0

Representative of what class was Raja in Law of Manu? Brahmins caste; Kshatriya caste; Vaishya caste; Shudra caste; Chandala caste.

Question #43 V1 Who had the opportunity to acquire property with charity acoording to Law of Manu? 1 Chandala; 0 Brahmins; 0 Kshatriyas; 0 Shudra; 0 Vaishya. Question #44 V1 1 0 0 0 0

Bazilevs – is: king in ancient Rome; famous Roman lawyer; leader of the Greek tribe; roman consul; ruler in ancient Babylon.

Question #45 V1 1 0 0 0 0

Name anyone who was responsible for the formation of ancient Athens? Pericles; Theseus; Dracont; Solon; Clisphen.

Tests

Question #46 V1 1 0 0 0 0

What means policy? title, land, issued by the feudal lord in Western Europe; ancient Greek city-state; decision of the Civil Court in Babylon; decision of the ecclesiastical court in the Catholic countries; rural community of Old Russia.

Question #47 V1 1 0 0 0 0

What is Agora? official bourgeois France; management body of the Roman Republic; collection of civil law in the early feudal Germany; judicial authority in Athens; people in ancient Greece.

Question #48 V1 1 0 0 0 0

Areopag is: an extraordinary court in Athens; the legislature of Rome during the reign of S. Tulia; aristocratic authority in ancient Athens; an official in ancient India; the collection of early feudal law of Germany.

Question #49 V1 1 0 0 0 0

Fila is: political unit of ancient Greece; territorial unit of the state francs; local authority in ancient India; control unit of Old Russia; political unit of ancient China.

Question #50 V1 Who were Meteks? 1 special category of slaves in ancient Rome who received free; 0 foreigners in ancient Athens, limited rights;

177

178

History of state and law in the foreign countries

0 0 0

heavily armed warriors in ancient Sparta; dependent peasants in the state of francs; free population of ancient Rome. Question #51

V1 1 0 0 0 0

What means «sisahfiya» in Athenian law? elimination of debt bondage; form of punishment by the laws of Draco; local authority; enfranchised reform of Solon; union of the Ionian tribes

Question #52 V1 1 0 0 0 0

Account the major part of the reforms of Solon? creation of a set of criminal laws of ancient Athens; setting the property qualification; passing, the institution of the judiciary; establishment of a standing army; census of slaves

Question #53 V1 1 0 0 0 0

Council of five hundred is: legislative body of the Prussian State; council of elders in ancient Rome; executive body of ancient Greece; council of Elders francs; judicial authority of ancient India

Question #54 V1 1 0 0 0 0

Geomory are: officials in ancient Egypt; agricultural estate in ancient Greece; governors of areas in ancient Babylon; officials in ancient Greece; slaves in ancient Rome.

Tests

Question #55 V1 1 0 0 0 0

Where was a democratic republic slavery? Ancient Athens; Ancient Babylon; Ancient Egypt; Ancient Sparta; Arab Caliphate.

Question #56 V1 1 0 0 0 0

Drakont laws is: the laws of Ancient China; the laws of Ancient Egypt; the laws of Ancient Babylon; the laws of Ancient India; the laws of Ancient Greece.

Question #57 V1 1 0 0 0 0

What means the term «mortgage»? private land ownership; land, bestowed for military service; mortgage; prescription possession; land belonging to the church

Question #58 V1 1 0 0 0 0

Collegial strategists is: judicial institution early feudal monarchy in Germany; financial management authority in ancient Greece; board officials in Rome; management body of the Arab Caliphate; college senior military officers of Ancient Greece

Question #59 V1 How many people were the members of Collegial strategists in Athens? 1 25; 0 12;

179

180

History of state and law in the foreign countries

0 0 0

15; 10; 16. Question #60

V1 1 0 0 0 0

Goplity is: judge in ancient India; cavalry in ancient Rome; military units Spartans; heavy infantry in Ancient Greece; officials in Greece.

Question #61 V1 1 0 0 0 0

Zevgity is: officials of ancient Rome; one of the categories of the population according to the laws of Hammurabi; one of the caste of ancient India; class of feudal France; one of the categories of the population of Ancient Greece.

Question #62 V1 1 0 0 0 0

Spartiats called: slaves in Sparta; uprising of Spartacus in ancient Rome; category of the population of Sparta, were engaged in handicrafts, trade, usury; full citizens of Sparta; population of Sparta, deprived of political rights.

Question #63 V1 1 0 0 0 0

Gerusiya is: local authority in ancient Egypt; penalty for a crime against a feudal lord in the Frankish state; contract luggage; judicial authority in ancient India; council of Elders in Ancient Sparta.

Tests

Question #64 V1 1 0 0 0 0

Ilots means: free peasants in the early feudal Germany; peasant commune in Old State; slaves in ancient Rome; slaves in ancient Sparta; free population of Sparta.

Question #65 V1 1 0 0 0 0

Sissitiya in Ancient Sparta is: people’s Assembly; military school for young Spartans; collective meal Spartans; judicial authority; collective responsibility of helots.

Question #66 V1 1 0 0 0 0

Kuriya is: political unit of ancient Rome; judicial authority of ancient Babylon; management body in ancient China; one of the places people in ancient Rome; political unit of ancient Greece.

Question #67 V1 1 0 0 0 0

Reforms of Servius Tullius included: establishing a system of governance in the Roman Empire; union of the Athenian tribes; division of the Roman Empire in the East and West; division of the Roman people through ownership; broad interpretation of Roman law.

Question #68 V1 Who was magistrates? 1 supporters of bourgeois Protestantism in England; 0 officials in the Roman Empire;

181

182

History of state and law in the foreign countries

0 0 0

interpreters of Roman law in medieval Germany; officials of the Athenian state; officials of Ancient India Question #69

V1 1 0 0 0 0

What means edicts of magistrates? source of the Anglo-Saxon system of law; royal decrees in feudal England; source of Roman law; solutions Officials Manu; ruling Council of Five Hundred at Athens.

Question #70 V1 1 0 0 0 0

Who is consul? head of state in Germany; highest magistrate of the Roman Republic; judicial authority in feudal England; chairman tsenturiatnyx comitia in ancient Rome; chief Executive of the U.S. government.

Question #71 V1 1 0 0 0 0

Pretor is: judge in ancient Egypt; administrative officer, regulating proceedings in ancient Rome; head of the phylum in ancient Greece; official in the Arab Caliphate; head of the village community in ancient India.

Question #72 V1 1 0 0 0 0

Senatus-Consult is: decision of the Senate of the Roman slave republic; president of the Senate in the U.S.; member of the Senate of the Roman slave republic; piece of legislation in the era of the French Revolution; president of the Convention in the English country.

Tests

Question #73 V1 1 0 0 0 0

Account the period of dictatorship in republican Rome: 1 year; 6 months; 2 years; 3 years; 4 years.

Question #74 V1 1 0 0 0 0

Who were the columns? artisans in feudal Germany; Roman Empire – a person attached to the ground; military caste in Sparta; warrior in ancient Greece; knightage in feudal England.

Question #75 V1 1 0 0 0 0

Printsipat means: one of the periods of the Roman Empire; form the eastern slave state; absolute power of the pharaoh in ancient Egypt; illegitimate rise to power in ancient Athens; mode of inheritance of property in Roman Law

Question #76 V1 1 0 0 0 0

Which document began the restoration of the Stuart monarchy in England? Habeas Corpus Act of 1679; Bredskaya Declaration of 1660; Act 1701 dispensation; The Bill of Rights in 1689; Triennial Act 1640.

Question #77 V1 How called in modern criminal law the process of removing outdated? 1 unification; 0 criminalization;

183

184

History of state and law in the foreign countries

0 0 0

decriminalization; codification; humanization. Question #78

V1 1 0 0 0 0

What means the formula: «The King reigns but does not rule»? oriental despotism; constitutional monarchy; theocratic monarchy; parliamentary republic; absolute monarchy.

Question #79 V1 1 0 0 0 0

Code of Justinian was the part of: laws XII tables; laws of Dracont; code of Canon Law; civil law (Corpus juris civilis); law of feudal Germany.

Question #80 V1 1 0 0 0 0

Servitut on Roman law is: obligation of contracts; way to redress; one of the ways of alienation of things; right to use someone else’s thing; form of criminal punishment.

Question #81 V1 1 0 0 0 0

Which name was given to the French Constitution in 1791? Girondist; Napoleon; Jacobins; Paris; Nant.

Tests

Question #82 V1 1 0 0 0 0

What called usufruct in Roman law? legal right to use someone else’s personal property; obligation of the injury; sales contract under the laws of XII tables, using religious procedures; natural swap agreement used by the ancient Romans; loan agreement secured by personal guarantee.

Question #83 V1 1 0 0 0 0

What is regulated Corpus Juris Civilis? religious practices of ancient Rome; rules of military strategy and tactics of the Roman army; criminal law; civil relations; administration of the empire.

Question #84 V1 1 0 0 0 0

What is «neksum»? contract «self-sale» on Roman law; form of a contract of sale; storage agreement; craftsmen of ancient Greece; collection rights of ancient Egypt.

Question #85 V1 What is «Cum Manu»? 1 special form of marriage under the laws of 12 tables (marriage with the power of her husband); 0 category of dependent landowners in ancient China; 0 one of the caste of ancient India; 0 inheritance by law 12 tables; 0 the ownership of the land according to the Laws of Manu. Question #86 V1 What means «tort» in Roman law? 1 obligation of the contract;

185

186

History of state and law in the foreign countries

0 0 0 0

injury; contract of employment; contract of sale; family-marriage law. Question #87

V1 1 0 0 0 0

What means «mantsipatsiya» in Roman law? women’s civil rights; women’s right to divorce; right to use another person’s property; sophisticated way of disposal of the property; right to appeal the actions of officials in court.

Question #88 V1 1 0 0 0 0

What is «Sine Manu»? land reform in Ancient China; special form of marriage under the laws of XII tables; caretaker palaces of Ancient India; immune to the law under the laws of Manu; particular form of criminal procedure in ancient Rome.

Question #89 V1 1 0 0 0 0

What means «agnats»? slaves in ancient Egypt; dependent peasants in the country of the Franks; roman family members; slaves in Sparta; members of the Slavic family in Russia.

Question #90 V1 1 0 0 0 0

Which political regime was fixed in the Constitution of France in 1799? liberal-democratic regime; mode of the Jacobin dictatorship; mode consulate; mode of Directors; imperial regime.

Tests

Question #91 V1 1 0 0 0 0

What means «legis actio» process? form of the criminal process in feudal England; proceedings in the court in feudal Germany; form of inquisitorial process; oldest form of civil procedure in Rome; form of the process according to the Islamic law.

Question #92 V1 1 0 0 0 0

How francs called inherited land? iqta; chinsh; rent; allodium; mark.

Question #93 V1 1 0 0 0 0

Reforms of Charles Martel included: territorial-administrative division; introduction of a new currency; division of the population on the property principle; establishing land grants for their service; census of population and income.

Question #94 V1 1 0 0 0 0

Who was «majordom»? army commander in the Prussian State; chairman of the Senate of Rome; chief Justice, «King’s Bench» in England; managing the royal court in the Frankish state; treasurer of the kingdom of France.

Question #95 V1 Marka is: 1 landed property barons in federal France; 0 special units of knights to protect the king in early feudal Germany;

187

188

History of state and law in the foreign countries

0 0 0

rural community in feudal England; rural community in the state of francs; penalty for murder in feudal Germany. Question #96

V1 1 0 0 0 0

Under whose rule the state francs became an empire? Charles Martel; Charles the Bold; Clodvig; Lothar of Savoy; Charlemagne.

Question #97 V1 1 0 0 0 0

Martovskie fields are: name of the Council of Elders in Babylon; board of priests in ancient Egypt; days of the transition to another peasant feudal lord; review of Roman legionaries in the Campus Martius; review of the armed forces in the country of the Franks.

Question #98 V1 1 0 0 0 0

What means «immunitetnaya gramota»? decision of the ecclesiastical court in the Catholic countries; certificates issued by the governors of the provinces of the Roman Empire; special charters that define the privileges of the clergy and nobility; decision of general courts in England; royal charter for the development of new lands.

Question #99 V1 1 0 0 0 0

Which country failed in the Second Empire in France? United Kingdom; Spain; Prussia; Austria; Russia.

Tests

Question #100 V1 1 0 0 0 0

 European law in medieval times means: decisions of the courts of the Holy Inquisition; collection of court decisions «King’s Bench»; population census English King John Lackland; census in 1086 in England, conducted by Wilhelm I; judgments in feudal France.

Question #101 V1 1 0 0 0 0

In which U.S. states in 1825 was adopted Civil Code of France in 1804? in Pennsylvania; in Louisiana; in Oregon; in Alaska; in Nevada.

Question #102 V1 1 0 0 0 0

How called Royal Court of Justice in criminal cases in medieval England? House chessboard; Court of common pleas; Court «Queen’s Bench»; Crown Court; Great Assisi.

Question #103 V1 1 0 0 0 0

Frigold is: direct vassals of King; head of one of the shattered lands of Germany; royal judge in England; free peasants of feudal England; official French king.

Question #104 V1 Which body called the «House of the chessboard»? 1 governing body of armed forces in Germany; 0 one of the divisions of U.S. Senate;

189

190

History of state and law in the foreign countries

0 0 0

office of the feudal king of France; organ in charge of finance in medieval England; Royal Admiralty in England. Question #105

V1 1 0 0 0 0

What means English absolutism? formation of the Republic in 1649; formation of trade unions; preservation of parliament; absolute power of the monarch; disposal of vessels of justice.

Question #106 V1 1 0 0 0 0

Assiza is: norms of canon law; Royal Decree feudal England; land ownership in the early feudal barons of France; one of the taxes in ancient Rome; decision of the Senate of Rome.

Question #107 V1 1 0 0 0 0

Which body called the «Star Chamber»? political court feudal England; upper chamber of the British Parliament; higher authority control in ancient China; executive body of medieval France; Imperial Chancellery in medieval Japan.

Question #108 V1 1 0 0 0 0

High Commission called: religious church oversight body in medieval England; body to examine crimes against the king in feudal Germany; commission for checking the quality of candidates for office in ancient Athens; authority to direct the affairs of ancient Sparta; management body in the counties of feudal England.

Tests

Question #109 V1 1 0 0 0 0

What is a source of law in the common law? canon law; common law and judicial precedent; legal doctrine; Corpus Juris Civilis; borrowed Roman law.

Question #110 V1 Sources of law of which country means the common law and judicial precedent? 1 law of the Slavic states; 0 English feudal law; 0 French feudal law; 0 German feudal law; 0 law of ancient Rome. Question #111 V1 1 0 0 0 0

Bloody legislation is: criminal law of medieval Japan; criminal law in ancient China; laws against workers in England; laws of Dracont; laws of Hammurabi.

Question #112 V1 1 0 0 0 0

Where has appeared first court of jury? in feudal England; in USA; in bourgeois France; in Netherlands; in feudal Germany.

Question #113 V1 Which solutions have adopted the court of jury? 1 solution for civil cases;

191

192

History of state and law in the foreign countries

0 0 0 0

guilty or not-guilty verdict; decide cases involving minors; recommendatory decision for the judges; sentencing in criminal cases. Question #114

V1 1 0 0 0 0

When was formed a class-representative monarchy in France? in 1302; in 1431; in 1535; in 1655; in 1781.

Question #115 V1 1 0 0 0 0

Who belonged to the «nobility of the sword»? knights in medieval England; aristocratic jury in England; knights who took part in the Crusades; new nobility in bourgeois England; hereditary nobility of feudal France.

Question #116 V1 Which political and legal act of 1356 in Germany was called the «Golden Bull»? 1 law on the abolition of serfdom; 0 imperial decree exclusive right to minting gold coins; 0 all-German Criminal Code of Law; 0 law, which recognized the fragmentation of Germany; 0 order to move to the state of gold mines. Question #117 V1 1 0 0 0 0

Which category of people called dependents? merchants; free communal peasants; warriors; slaves; caught in debt bondage of the peasants.

Tests

Question #118 V1 1 0 0 0 0

Vira is: tax dependent peasants in the state francs; decision of the jury in medieval England; penalty for the offense committed by the Russian Truth; share of the inheritance to the Russian Truth; feudal law «first night».

Question #119 V1 1 0 0 0 0

How until 1806 called Germany? Holy Roman Empire of the German nation; Greatest Germany Empire; North German Confederation; Customs Union; Confederation of the Rhine.

Question #120 V1 1 0 0 0 0

Name feudal republic of medieval Russia: Kiev principality; Novgorod principality; Rostov principality; Vladimir principality; Suzdal principality.

Question #121 V1 1 0 0 0 0

Who was the founder of the ancient Bulgarian kingdom? King Simeon; Khan Krum; Khan Asparuh; Stefan Dusan; Stefan Nemanja.

Question #122 V1 Monument ancient Bulgarian law is: 1 Stefan Dusan’s Law; 0 Barbaric Truth;

193

194

History of state and law in the foreign countries

0 0 0

Council Code; Civil Code; Law Judgment of people. Question #123

V1 Which country became the reason of War in 1870 between France and Prussia? 1 United Kingdom; 0 Portugal; 0 Austria; 0 Spain; 0 Denmark. Question #124 V1 1 0 0 0 0

Domochina is: head of the rural community in the Slavic countries; superintendent of palaces in ancient India; head of the family in the Arab caliphate; head of the family law XII-tables; head of the family according to the laws of Hammurabi.

Question #125 V1 1 0 0 0 0

Name sources of Islamic law: Qur’an, Sunnah, fatwa, qiyas; Laws of Hammurabi; Litigation; Laws of Manu; Doctrine.

Question #126 V1 1 0 0 0 0

Halif is: judge in the Muslim East; head of the secular and spiritual power of Arab Caliphate; high priest in ancient Egypt; governor of the province of the Arab Caliphate; head of the secular power in the East.

Tests

Question #127 V1 1 0 0 0 0

Show the beginning of the traditional Muslim calendar – Hijra? 610; 579; 620; 622; 632.

Question #128 V1 1 0 0 0 0

Which principle of social division has been a tradition in the Arab caliphate? division of descent; division through ownership; division according to their professional affiliation; divide by religion; division on ethnic lines.

Question #129 V1 1 0 0 0 0

Account sects in Islamic law: obligatory prayers; legal Muslim schools; person in respect of which shall not apply the death penalty; muslim theologians, lawyers; additional sources of law.

Question #130 V1 1 0 0 0 0

Segunat is: system of local government in ancient Egypt; special treatment board Japanese feudal state; particular form of criminal proceedings in Japan; special form of vassalage relations in Western Europe; form of democracy in Japan.

Question #131 V1 Petition of Rights 1628 is: 1 first 10 amendments to the U.S. Constitution; 0 restriction of rights of the King of England;

195

196

History of state and law in the foreign countries

0 0 0

declaration of the French Revolution; set of rules of government of England; declaration of the Dutch bourgeois revolution. Question #132

V1 1 0 0 0 0

Who means Levellers? early feudal nobility in Germany; class in feudal England; common name of the Roman governor; political movement the French bourgeoisie; political movement of English bourgeois revolution.

Question #133 V1 1 0 0 0 0

What is «gun control»? declaration of the fascist dictatorship in Germany; constitution of Napoleon Bonaparte; fundamental law of England; main part of the Magna Carta; basic law of the Great French Revolution.

Question #134 V1 1 0 0 0 0

Which event called «Glorious Revolution»? Paris Commune; French bourgeois revolution of 1789; Napoleon Bonaparte’s coup in 1799; Revolution in England in 1688; Revolution in Germany in 1918.

Question #135 V1 1 0 0 0 0

Presviteriane are: fighters for the emancipation of slaves in the United States; advocates the Lutheran Church in Germany; one of the political movement of the English bourgeois revolution; new class of feudal Russia; political party, which arose in the Weimar Republic

Tests

Question #136 V1 1 0 0 0 0

Trade unions is: political movement during the English bourgeois revolution; political party of bourgeois France; workers’ unions of England; U.S. labor unions; management body areas in Rome.

Question #137 V1 1 0 0 0 0

What is the main cause of the War of Independence of the United States? fight for civil rights of the indigenous people – the Indians; release of political and economic domination of England; need to eliminate slavery in the colonies; release of the economic impact of France; exemption from military influence in Spain.

Question #138 V1 What was the result of the Second Continental Congress in 1775 in Philadelphia? 1 adoption of the Declaration of the Rights of Man; 0 formation of the U.S. Army; 0 adoption of a petition to King; 0 decision of the discussion of the U.S. Constitution; 0 decision on the right of citizens to bear arms. Question #139 V1 1 0 0 0 0

What was the reason of adoption of U.S. Constitution in 1787? the basic human and civil rights; the principle of separation of powers; the creation of the Confederate States; the formation of a two-party system; the elimination of slavery.

Question #140 V1 What proclaimed the U.S. Bill of Rights in 1791? 1 political and civil rights;

197

198

History of state and law in the foreign countries

0 0 0 0

elimination of slavery; unit reservations for Native Americans; creation of the federal government; creation of the U.S. judicial system. Question #141

V1 1 0 0 0 0

What means dictator? dictatorship of Napoleon; board before the coup of Napoleon Bonaparte; lower chamber legislative body of France; management body of the Paris Commune; establishment of the consulate.

Question #142 V1 1 0 0 0 0

«Civilian death» under the Criminal Code of France is: form of capital punishment; limitation of property rights; restriction of civil rights; withdrawal of political and civil rights; ban on access to political activity.

Question #143 V1 1 0 0 0 0

What has proclaimed the Constitution of Germany in 1871? establishment of a fascist dictatorship; establishment of republican government; german unification; creation of the Customs Union; abolition of conscription.

Question #144 V1 1 0 0 0 0

What means Bundesrat? armed forces of the German Empire; upper house of parliament for the German Constitution in 1871; lower house of the German Parliament; parliament under the Constitution of Prussia in 1850; general staff of the German Armed Forces.

Tests

Question #145 V1 1 0 0 0 0

Which body called the Reichstag? upper chamber of the German parliament’s Constitution in 1871; military office in Germany; authority in the state francs; management body of the empire of Napoleon Bonaparte; lower house of the German Parliament by the Constitution of 1871.

Question #146 V1 1 0 0 0 0

Who was proclaimed the President of China in January 1912? Yuan Shikai; Mao Zedung; Deng Xiaoping; Chiang Kaishi; Sun Yat Sen.

Question #147 V1 1 0 0 0 0

Who was the first president of the Weimar Republic? P. Hindenburg; O. von Bismarck; M. Ebert; Karl Liebknecht; E. Thalmann.

Question #148 V1 1 0 0 0 0

When in Italy was established the dictatorship of the Nazi Party? in 1919; in 1922; in 1924; in 1928; in 1933

Question #149 V1 When in Germany was formed Nazi Party? 1 in 1917; 0 in 1918;

199

200

History of state and law in the foreign countries

0 0 0

in 1919; in 1922; in 1933 Question #150

V1 1 0 0 0 0

Which body initiates a case to impeach the President of the United States? U.S. Supreme Court; U.S. Senate; U.S. House of representatives; Congress of US.; State legislatures.

Tests

Уро­вень 3 Question #1 V1 1 0 0 0 0

How calls the period of the history of the Roman Empire? Principate and Dominat; Colonate; Magistrat; Oligarchy; Senate.

Question #2 V1 1 0 0 0 0

When Clisphen made reforms in Ancient Greece? in 594 BC; in 509 BC; in 457 BC; in 492 BC; in 560 BC.

Question #3 V1 1 0 0 0 0

Dzhati in Ancient Egypt is: captain; vizier of Pharaoh; head of the community; high priest; head of public works.

Question #4 V1 1 0 0 0 0

Where was situated Roman state? Iberian; Peloponnesian; Apennine; Balkans; Laconia.

Question #5 V1 First king of ancient Rome was: 1 Romulus Augustulus;

201

202

History of state and law in the foreign countries

0 0 0 0

Numa Pompilius; Romulus; Tarquin the Proud; Ankh Marcius. Question #6

V1 1 0 0 0 0

How called Rex in Rome? priest-diviner; king; imperial guard; senator; member of national assembly.

Question #7 V1 1 0 0 0 0

Who in Rome until the reforms of Servius Tullius had the civil rights? plebeians; patricians; clients; slaves; meteks;

Question #8 V1 1 0 0 0 0

Who in Ancient Rome had a right of veto? rex; pretoria; consul; tribune; pretor.

Question #9 V1 1 0 0 0 0

The term of consul: 1 year; 5 years; 10 years; 6 months; 9 months.

Tests

Question #10 V1 1 0 0 0 0

Where has appeared Islam and the Arab Caliphate? Hidzhas; Khorezm; the Maghreb; Cordoba; Misr.

Question #11 V1 1 0 0 0 0

From what event begins the Muslim calendar? from the base of Mecca; with a black stone fall to the ground; with the birth of Mohammed; move with Muhammad from Mecca to Medina; with the death of Muhammad.

Question #12 V1 1 0 0 0 0

What means «caliph»? deputy prophet; prophet; great ruler; successor of the Prophet; assistant prophet.

Question #13 V1 1 0 0 0 0

Account five main requirements of Islam: iman, namaz, oraza, zakat,hajj to Mecca; haradj; sadaka; nikakh; umra.

Question #14 V1 How called the line of succession, derived from a common ancestor? 1 parantelly; 0 prekarii;

203

204

History of state and law in the foreign countries

0 0 0

parcel; prony; peers. Question #15

V1 1 0 0 0 0

What means the term «sofa» in the Arab caliphate? Executive Office; Palace of the Caliph; Managing servants; Part of the palace; Palace guards.

Question #16 V1 1 0 0 0 0

Which share of revenue was zakat – the religious tax? 1/2; 1/3; 1/10; 1/20; 1/40.

Question #17 V1 1 0 0 0 0

What characterized feudal and theocratic monarchy in the Arab caliphate? limited the power of the feudal lords of the Caliph; limited the power of the people of the caliph; power belongs to the Muslim clergy; on behalf of the Caliph blends secular and spiritual power; person of the caliph merges the executive and the legislature.

Question #18 V1 1 0 0 0 0

What event starts in the Middle Ages? with the fall of the Byzantine Empire; with the fall of the Western Roman Empire; with the formation of the Frankish empire; with the formation of the Byzantine Empire; with the First Crusade.

Tests

Question #19 V1 1 0 0 0 0

Founder Frankish kingdom was: Chilperic; Hlotar; Childeric; Clovis; Hildegard.

Question #20 V1 1 0 0 0 0

Who were the Franks? Gauls; Celts; Germans; Slavics; Romans.

Question #21 V1 1 0 0 0 0

Middle century cover the period: V to XV centuries; IV to XVIII centuries; V to XVII century; VI to XIX century; from VIII to XVI centuries.

Question #22 V1 1 0 0 0 0

Where was situated Frankish kingdom? Gaul; Britain; Germany; Dacia; Anatolia.

Question #23 V1 Which river formed the border between the Franks and Gallo-Romans? 1 Sena; 0 Rhine;

205

206

History of state and law in the foreign countries

0 0 0

Tiber; Loire; Dunai. Question #24

V1 1 0 0 0 0

Which dynasty ruled until the Franks Charles Martel? Capetings; Merovings; Carolings; Plantagenet; Windsor.

Question #25 V1 1 0 0 0 0

Which religion was adopted by Franks in 498? Catholic Christianity; Orthodox Christianity; Protestant Christianity; Lutheranism; Islam.

Question #26 V1 1 0 0 0 0

Where signed an agreement on the division of the Frankish Empire? in the Vendee; in Verdun; in Bonn; in Aachen; in Rome.

Question #27 V1 1 0 0 0 0

Who was the first ancient Russian prince? Vladimir; Oleg; Igor; Svyatoslav; Alexander.

Tests

Question #28 V1 1 0 0 0 0

Whom Franks called the Marshal? knightly cavalry commander; commander of light infantry; commander of the palace guard; commander of heavy infantry; commander of the artillery.

Question #29 V1 1 0 0 0 0

Where from came to Kiev Russia Orthodox Christianity? from Poland; from Germany; from Armenia; from the Byzantine Empire; from Rome.

Question #30 V1 How called constituencies with unfair representation in parliament, abolished in 1832 in England? 1 «dirty little places»; 0 «rotten boroughs»; 0 «protected towns»; 0 «counts towns»; 0 «royal boroughs». Question #31 V1 1 0 0 0 0

How called Parliament, which operated in England from 1640 to 1653’s? «Mad Parliament»; «Short Parliament»; «Long Parliament»; «Obstinate Parliament»; «Model Parliament».

Question #32 V1 How called Guards cavalry of Oliver Cromvel? 1 round-headed; 0 ironsides;

207

208

History of state and law in the foreign countries

0 0 0

redeyses; redskins; redheads. Question #33

V1 1 0 0 0 0

What means the «new model» 1642 of England? agreement between the king and the parliament; agreement between the Independents and the Levellers; navigation act O.Cromvel; military reform O.Cromvel; constitution O.Cromvel.

Question #34 V1 1 0 0 0 0

Who was the leader of the Diggers? John Lillbern; Oliver Cromwell; Thomas Fairfax; Gerrard Winstanley; John Ball.

Question #35 V1 Who became king of England after the restoration of the Stuart monarchy in 1660? 1 James I; 0 James II; 0 William I; 0 Henry III; 0 Charles II. Question #36 V1 Which title was Oliver Cromwell received after the execution of King Charles II? 1 Lord Chancellor; 0 Lord Privy Seal; 0 Lord of the Admiralty; 0 Supreme Lord; 0 Lord Protector.

Tests

Question #37 V1 1 0 0 0 0

Account the periods of slavery under sharia: 1 year; 3 years; 5 years; debt slavery according to Sharia had unlimited duration; shari’a provided debt slavery.

Question #38 V1 1 0 0 0 0

What means «talaq» in Islamic law? forgiveness offender relatives of the victim; simplified divorce for men; method of transfer of immovable property; form of punishment of stoning; name of the Muslim legal schools.

Question #39 V1 1 0 0 0 0

How called the famous city in Arab Caliphate? Damascus; Baghdad; Mecca; Cordoba; Cairo.

Question #40 V1 1 0 0 0 0

How called the capital in Arab Caliphate during Abbasid dynasty? Damascus; Baghdad; Mecca; Cordoba; Cairo.

Question #41 V1 Who was an advisor and senior official in Arab Caliphate? 1 emir; 0 mukhtasib;

209

210

History of state and law in the foreign countries

0 0 0

said; vizier; sheikh. Question #42

V1 1 0 0 0 0

Account the main organs of government in Arab Caliphate: Diwan al-barite; Diwan al-sofa; Diwan al- kharaj; Diwan al-sufi; Diwan al-mulk.

Question #43 V1 Idzhma in Islamic law is: 1 consensus of authoritative Muslim scholars on religious-legal and domestic issues; 0 judicial precedent; 0 written legal opinion of the supreme religious authority; 0 customs, traditions. 0 collection of stories about the deeds and sayings of Muhammad. Question #44 V1 1 0 0 0 0

Kiyas in Islamic law is: collection of stories about the deeds and sayings of Muhammad; written legal opinion of the supreme religious authority; consensus of authoritative Muslim scholars on religious-legal and domestic issues; judicial precedent; custom is not contrary to Islam.

Question #45 V1 1 0 0 0 0

Which city in medieval Germany enjoyed complete self-government? empire; freestyle; prince; church; counties.

Tests

Question #46 V1 1 0 0 0 0

Which region of Germany was the royal domain of the king? Franconia; Bavaria; Saxony; Baden; Prussia.

Question #47 V1 What means the feudal law in accordance with the Golden Bull 1356 in Germany? 1 right of the lord the minting its own coins; 0 right to engage in the lord of the court; 0 right to engage in private feudal warfare; 0 feudal law «first night»; 0 feudal monopoly on mills and salt works. Question #48 V1 1 0 0 0 0

How called in medieval Germany local estate-representative institutions? Reichstag; Landtags; Landrat; Reichsrat; Bundesrat.

Question #49 V1 1 0 0 0 0

How long the Paris parliament in France had to disassemble the dispute lords? 1 month; 40 days; 80 days; 1 year; 5 years.

Question #50 V1 Account the peace treaties: 1 Treaty of Brest;

211

212

History of state and law in the foreign countries

0 0 0 0

Treaty of Verdun; Treaty of Versailles; Vermuts contract; Treaty of Westphalia. Question #51

V1 1 0 0 0 0

How called the armed forces of Nazi Germany in 1935? Reichswehr; Wehrmacht; Bundeswehr; Bundestag; Landwehr.

Question #52 V1 1 0 0 0 0

Which Nazi decree was passed after the Reichstag fire in 1933? «On Protection of People and State»; «On the Elimination of the Social Democratic Party»; «On universal military service»; «on the nationalization of the property of Jews living in Germany»; «On liquidation of the Communist Party».

Question #53 V1 1 0 0 0 0

What means anti-semitism? hate Slavics and Gypsies; hate Russians; hate Jews; hate Asians; hate Americans.

Question #54 V1 1 0 0 0 0

When Nazi Germany has adopted the «racial laws»? 1933; 1934; 1935; 1938; 1941.

Tests

Question #55 V1 Which provocation was organized by the Nazis in February 1933, in order to discredit the Communists? 1 kill the German Ambassador in the Soviet Union; 0 burning of the Reichstag – Parliament; 0 attack on a radio station on the Polish-German border; 0 staged an attempted assassination; 0 killing Soviet ambassador in Germany. Question #56

V1 1 0 0 0 0

How called the Nazi party? nazi social-democratic party; abver; hitler jugend; gestapo; bunker.

Question #57 V1 1 0 0 0 0

What means «SB» in Nazi Germany? special bodies; storm troopers; security groups; secret police; security service.

Question #58 V1 How in Roman law was called a simple method of disposal of things without formalities? 1 occupation; 0 composition; 0 mantsipatsiya; 0 tradition; 0 demonstration.

213

214

History of state and law in the foreign countries

Question #59 V1 1 0 0 0 0

How Franks called the royal palace judge? Palatine; Mayordom; Marshall; Refendary; Arhikapellan.

Question #60 V1 1 0 0 0 0

How Franks called the royal confessor? marshall; mayordom; arhikapellan; tezaurary; palatine.

Question #61 V1 1 0 0 0 0

How Franks called the cast? free Franck-farmer; semi-franc; heavily armed foot soldier; slave; resident of a free city.

Question #62 V1 1 0 0 0 0

What means the board in ancient Rome? location of military training and parades; central market square, where meetings were held; emperor’s palace during the reign of Octavian; place of gladiators fighting; place of sacrifice.

Question #63 V1 How in Roman law called superficies? 1 right to use the facilities in a foreign land; 0 right to use the fruits from a foreign land;

Tests

0 0 0

long-term lease of uncultivated land; secured by real estate; right to transfer the leased land in the sublease. Question #64

V1 1 0 0 0 0

What means emfitevsis in Roman law? long-term lease of uncultivated land; right to use facilities in a foreign land; right to use the fruits from a foreign land; right to transfer the leased land in the sublease; mortgages.

Question #65 V1 1 0 0 0 0

Which contract in Roman law known as literal? oral; transfer of goods, immediately after the conclusion; writing; complex, using weights and witnesses; preliminary conclusion of the agreement.

Question #66 V1 For which contract in Roman law was necessary preliminary conclusion of the agreement? 1 extraordinary; 0 consensual; 0 literal; 0 verbal; 0 real. Question #67 V1 1 0 0 0 0

How in Roman law called the contract with immediate transfer of the thing? extraordinary; consensual; literal; verbal; real.

215

216

History of state and law in the foreign countries

Question #68 V1 1 0 0 0 0

By whom was created Principate in Roman Empire? Diocletian; Octavian Augustus; Marcus Aurelius; Julius Caesar; Cornelius Sulla.

Question #69 V1 1 0 0 0 0

What means verbal agreement in Roman law? agreement to transfer the immediate transfer of the thing; oral contract; written contract; agreement with the preliminary conclusion of the agreement; treaty.

Question #70 V1 1 0 0 0 0

How called the citizens of Sparta? perieks; helots; spartans; meteks; peregrins.

Question #71 V1 1 0 0 0 0

How called national assembly in Russia? townsmen; chamber; kremlin; meeting; assemblies.

Question #72 V1 Which office in January 1933 became Hitler’s Germany? 1 Reich propaganda; 0 Reich President;

Tests

0 0 0

Chancellor; Chancellor; Fuhrer. Question #73

V1 How called the process of borrowing the Japanese western management, law, culture, way of life? 1 Westernization; 0 Restitution; 0 Requisition; 0 Reception; 0 Unification. Question #74 V1 1 0 0 0 0

Show the base of the Constitution of Japan in 1889: United Kingdom; France; Prussia; Russia; United States.

Question #75 V1 Tell the name of the unions, connected membership rights and responsibilities: 1 the corporation; 0 syndicates; 0 trusts; 0 verein; 0 cartels.

217

Glossary

Avilum – the privileged categories of free inhabitants of Vavilon, fullfledged members of the community, who owned along with great service allotment plots of communal land. Agama – in ancient India dharmashastr title of the property, measurable and calculus, as well as evidence of a triad of proprietary rights to document that evidence, the use of the thing. Adat – the unwritten laws, the right, customs in non-Arab Muslim countries, with Knew Shariah. Adultery – a betrayal of a spouse as a basis for termination of civil marriage in court. Allodium – 1) the allotment of free francs, hereditary in the male line, and 2) freely alienable land tenure, family property in the medieval Western Europe. Apella – popular assembly in ancient Sparta. Areopagus – supreme governing body and the highest court in ancient Athens (at at the entrance to the Acropolis on a rock god Ares). Arifmos – land holding life in Byzantium on the terms of objection service. Arrier vassal – chalk or medium feudal (vavasour, valvassor) depends of big feudal lords, vassals of the Crown (peers). Arthashastra – in ancient India, secular literature, treatises on the art of politics and governance of the state, practical guidelines to figure out of the king (Kautilya Arthashastra). Arhagety – two «kings» in ancient Sparta. Archont – highest official staff in ancient Athens. Assisi – 1) in the middle ages in Britain and France meeting of lords, and 2) a decree of the king of England and Norman 3) lawsuit for the right to land; 4) ambulatory court involving assessors to resolve land contributions; and later the criminal cases. Athymia – dishonor, political deprivation procedure of the civil rights in ancient Greece. Autos – public pronouncement and execution of the sentence of the Inquisition, in particular condemned the burning at the state.

Glossary

Affatomiya – public symbolic act of transfer of the property in Old German law, which was a kind of contract in favor of a third person with elements of inheritance by will (see Salic law). Basileus – 1) tribal leader in Homeric Greece, and 2) the second Archon in Ancient Athens, 3) Greek name of the ruler (king). Basil – 1) imperial law in Byzantium, and 2) public building, destined for the court, commercial transactions, etc. Bairum – as redum (drover), professional warrior in ancient Babylon, who received from the governor for his service plot. Bailly – official appointed by the king in medieval France, the head balyazha (county royal domain of several prevotstv) with fiscal governmental, judicial and police functions. Bakufu – military field bid government three dynasties shoguns in Japan. Banalitet – European feudal monopoly of the means of agricultural production (mills, furnaces, presses). Bailiff – a judicial officer, the head of a hundred and deputy sheriff in medieval England. Benefice – 1) land ownership early medieval complained vassal lifetime use (without inheritance rights) on terms to perform military or administrative services, 2) the church office in the Roman Catholic Church, related to define governmental revenues. Bill of attainder – laws, Final Act, to declare certain personal guilty of a felony (usually change) without trial or appropriate procedures (impeachment) and the death penalty. If an act of sentences imposed less stringent, the knowledge than the death penalty, it was called a bill of pains and penalties. Both types of acts prohibited by the U.S.Constitution. The grand jury – the jury indictments board in medieval England, appointed by the County Sheriff during an inspection or visit itinerant judges to testify about persons suspected of criminal offenses, and thereafter – Body trial. Bule – 1) council of elders (tribal aristocracy) in Homeric Greece, and 2) the Council of four hundred at Solon era; 3) Council of Five Hundred at Klisfen in ancient Athens. Bulla – normative act (diploma or disposal ) of the Pope or the German Emperor, which was held together by a circular metal seal. Waqf – inalienable and tax-exempt property, usually in immovable property transferred Muslim institutions (mosques, madrasas, etc.) for any religious or charitable purposes. Varna – a class community in India, based on the combined set of religious – military funeral, and later social and professional characteristics (Brahmins, Kshatriyas, Vaisyas, Sudras). Vassal – feudal landowner in countries slave overlord (his lord) and bear in his various duties on the basis of a vassal agreement (kind of patronage).

219

220

History of state and law in the foreign countries

Vedas – ancient monuments of Indian religious literature (Rigveda, Samaveda, Yajurveda, Artharveda) containing hymns, chants, incantations formula, ritual prescriptions and myths. Blood money – monetary compensation in early medieval law for killing a free man. Villein – category of feudal peasantry, personally freeholders of land in Western Europe. Possessory rights – Institute of Land Law of England, offering a variety in terms of shape, free land lines: estate freehold and possession protected right, limited rights regarding wills; life possession and possession for a term rentals. Possession of «dead hand» (menmort) – Medieval Institute of ownership in which the land was under the complete control of church institutions, socalled killing the county, with the exception of the feudal land turnover. Riders – 1) second rank citizens property in Ancient Athens after Solon’s reforms, 2) privilege class in ancient Rome. High Commission – extraordinary court, established in 1559 in England for observation of the execution of government ​​in church policy, and in particular, to combat heresy. Gelieya – judicial authority in ancient Athens, is regarded as a court of first instance on public affairs officers and crime ramped and as the appellate court affairs and is simultaneously a supervisory authority in the field of legislation. The Attorney General – 1) in the U.S. – appointed by the President with the advice and consent of the Senate head attorney of the federal service and the Ministry of Justice, who is also the legal adviser to government and political adviser to the president, and 2) in the UK – the official representing of the crown in the courts for the most important cases and controls activities of the Director of Public Prosecutions (charges), appointed by the Minister of Interior. Geomory – caste farmers in Attica in VIII-VII centuries BC. Gerefa – the representative of the king in England before Normand invade with broad judicial and police regulations, the ruler of the city or county. Heriot – 1) a vassal of the property, as a rule, its armament, the transition after his death to before Normand invade weapons in England, 2) the free owner of the land by inheritance copyhold in England. Gerousia – eldermen (geronts) in ancient Sparta in the number of 28 persons and two boron arhagets. Giri – moral and legal environments of medieval Japan, the concept of the honor and decency. Gloss – a brief note (or notes on individual words of a legal product, made​​ between the lines or on the margins of the book (manuscript).

Glossary

Rotten parliamentary boroughs – numerically small settlements in England in order to control the local landlords and possessed the right of representation in the House of Commons to electoral reforms in the XIX century. Homestead – land that was provided on concessional terms for colonization, sparsely populated land in the United States. Genro – council of elders extraconstitutional lifelong advisory body to the monarch and Japan until 1940-th. Daimyo – the big landowners and the ruling princes in Japan to reform «Meiji isin» in the second half of XIX century. Double vote – in England the voter’s right to vote twice, the place of residence and the location of the property; abolished in 1949. Dekretalii – collections regulations Pope. Vigil – class of craftsmen, artists, doctors in Attica in VIII-VII centuries BC. Demotia – governments in ancient Athens, is in particular, the lists of the citizens alive in the territory of demes (villages). Dokimasiya – a special check in ancient Athens, which were subjected to all the elected candidates before taking office. The doctrine of «valuable consideration» – the medieval judicial doctrine of treaty rights in England, according to which the information contract shall specify the condition of obtaining the certain benefits, etc. Dominion – a self-governing part of the British Empire, especially the so-called colony, later state within the Commonwealth of Nations, the recognized head of the King of England (Canada – since 1867, the Australian Union – since 1901, New Zealand – since 1907, Newfoundland – from 1917, the Irish Free State – 1921). Domino – property in Roman law, as a rule, complete, includes the usufruct. Domicile – the wife’s rights to independent residence in the modern marriage and family law. Dauphin – the title of heir to the throne in Western Europe (regent – temporary ruler situation vacancy of the throne, the long absence of disease or a minority of the monarch). Dharma – the set of rules binding on every Muslim and Hindu, including various regulatory requirements (legal, moral, religious and ritual). Dharmasutra – the name of the oldest dharmashastr (Gautama Baudhayana, Apastamba, Vasistha), on the basis that there was an extensive legal literature dharmashastr. Dharmashastr – in ancient India Brahmin genre works commenting on the sacred books. Penance – religious believer’s punishment for violation of church canons, priests instructions, accompanied by committing to long prayers, sacrifices, fasting, etc.

221

222

History of state and law in the foreign countries

Heresy – one of the most serious crimes in medieval law, representing a deviation from the official doctrine of the Church in matters of dogma, cult organization. Generale – taxing district in France during the absolute monarcy. «Women’s share» – part of movables wife in medieval German law has a special legal regime. «Closed shop» – standard U.S. labor law , order entrepreneur duty to employ only members of the relevant trade union (see Wagner Act 1935). Star Chamber – a special section of the Privy Council in medieval England with the functions of emergency court to fight opponents of royal power (1487-1641 years). Zeugitae – one of the bits of property free inhabitants of Attica after the reforms of Solon. Land rights in England – a special institution of medieval law, includes its own ownership, content and scope of possessory rights, legal interests, while the right to Terraced House: the person belonged to or possession of the thing, or so-called future rights – «return law» and «waiting law». Zemskoye law – in medieval Germany Local Law (Länder), common to all free population of the rules applicable in the courts of the count’s jurisdiction. Zimm – Christian or a Jew, who lived in territory of the Islamic state, and enjoy with his patronage. Ijma – one of the sources of Islamic law, judgments on religious and legal issues raised by associates of Mohammed and authoritative theologians. Ictus – the Arab Caliphate complain for the service tenure. Ilkum, Ilko – inalienable plot with the house and garden in ancient Babylon, dedicated service for the warrior king (or redumu bairum). Helots – natives Messenia, Sparta became public servants as a result of conquest. Imam – 1) spiritual leader of Muslims in a single country sometimes endowed with secular power, and 2) a priest in the mosque, and 3) the founder of each of the four religious sects of Sunni law, and 4) the head of the Shiites. Immediatizatsiya – Country Side – conversion process vassals direct vassals of the king. Immunity – granted on the basis of royal charters imperious authority – feudal privilege to carry on its own territory a number of state governmental functions (financial, judicial and police, military). Empires – 1) the highest military, administrative and judicial powers belonging to the dictator, consuls, praetors and the chief staff in ancient Rome and the Roman governors in the provinces (proconsuls, propraetors) 2) empire, marking territory monarchy in led by the emperor, was applied

Glossary

to the Roman power in the world to Byzantium and the monarchy, as well as to the world Colonial states in the Middle Ages and modern times. Impeachment – Formal charges made, as a rule, the lower chamber of the parliament against the highest official involvement followed him to justice in the form of dismissal and transfer of proceedings in criminal law. Investiture – law in the medieval Western Europe solemn symbolic act of transferring a vassal of the county, office, dignity. The Inquisition – a tribunal of the Catholic Church, established in XIII century to combat heresy; titled «Congregation of the Holy Office» of the lasted until 1965. Inquisitorial process – investigative and investigative process in criminal (most-ly political religious) cases in several countries of medieval Western Europe. Institutional System – positioning system of civil law modeled on the institutions of the Roman jurist Gaius. Quartermaster – appointed by the king chapter in the province in medieval France, with administrative, financial and judicial powers. Interpellation – in some foreign countries treatment group of deputies of the government or an individual minister, demanding an explanation about their ongoing domestic or foreign policy. Mortgage – in ancient (Greco-Roman) law form the pledge without transfer of ownership to the lender. The claim vindication – in Roman law suit unprocessed owner to owning improper. Negatory suit – in the Roman law the claim about the inadmissibility of actions that impede implementation or violate the right of ownership. Action for violations – the claim form in medieval English law, which applies in all cases, damage to property or person of the plaintiff, even as an alternative claim on charges of felony. Claim for acceptance – the form of action in medieval England contract law for damages for failure to perform a simple agreement (not clothed in a form of a document with a seal or implied obligation. Kadi – Muslim judge, appointed head of state to deal with civil and criminal cases and make decisions based on Sharia and adats. Kaiser – the title of the head of the German Empire. Chamberlain – one of the highest officials in the Frankish kingdom in the early feudal Germany and Norman England, responsible for revenues in the penalty, palatial estate. Canon – a set of regulations, norms of canon law, having a dogmatic character. Privateering – carried out on the basis of the official pre- authorization follow-up and capture of private maritime vessels, foreign commercial vessels.

223

224

History of state and law in the foreign countries

Kapitatsiya – poll tax in France, introduced by Louis XIV (1643-1715 years) to cover military expenditures. Chapter house – regulations of the Frankish kings in VII-IX centuries with the explanation of barbaric truths and outlining issues on the management of the royal tenure, finance, customs, and military affairs. Cartel – a form of monopoly agreements between firms to determine the overall pricing policy, but while maintaining their economic and financial status. Cast – relatively closed, hereditary, endogamous social community in several Asian countries, due to marginalize perform specific professional functions. Questor – 1) one of the magistrates of Ancient Rome in charge of finance questions following some criminal cases, and 2) the chief lawyer in Byzantium, the chairman of the consistory, head of the executive power with the Master. Kangaroo guillotine – Speaker of the House of Commons in England, granted to him in 1909, sorted the amendments to the draft decisions to be discussed in Parliament and reject the rest. Kiyyas – Islamic law principle of the decision case in the court of law by analogy, application of the rule of the Quran, the Sunnah, or ijma to the case not expressly provided by these sources. Claire – Land citizen of the Greek polises. Kleruhiya – military settlement of the Athenians and union policy. Whip – in the House of Commons of England from time controlling enforce discipline voting members of his faction. Colon – initially free tenant, with attached to the earth farmer who is not allowed to leave their village. Comitia – People in ancient Rome (curiatnye, tsenturiatnye, tributnye). Commendation – in medieval Europe «award himself» a strong power and patronage based on the agreement that the objective entailed the emergence of personal dependence face. Switching – in medieval Europe exchange on natural cash. Convivial union – funded and controlled by the entrepreneur in the United States (Wagner Act in 1935). Song – monetary compensation for harm. Kompurgatsiya – law in the medieval traditional institution, a kind of court time in favor of the accused, accompanied with oath. Concordat – the agreement between the head of state properties and the Pope of the Catholic position in the state. Constable – 1) commander of the armed forces in France, and 2 ) an official with the right of military jurisdiction in England.

Glossary

Consistory – I) State Council under the Roman Emperor during dominative; 2) a government body in Byzantium; 3) the body of spiritual or secular management of the many states of medieval Europe. Countersignature – rule that the act of Heads of State of government to its legitimate strength needs to sign the relevant minister, responsible for this act. Concern – the union contract in complex heterogeneous enterprises to joint of financial activity, but while maintaining their economic independence. Copyhold – bailment in medieval England associated with personal levies peasant (villain) in favor of the Lord, which were recorded in the copies of the decision of the manorial courts; later evolved into the law of succession of feudal rent. Coroner – officer in England for watching violent deaths, elected by the local population. Krypto – state-sanctioned system of ancient Sparta annual raids and massacres of helots. Right fist – in medieval Europe the feudal tyranny (strong right) at a resolution of personal and social conflicts (feudal private wars). Curia – 1) set of 10 patrician clans in ancient Rome, and 2) the municipal authority control in provincial cities (city senate) in the late Roman Empire, and 3) in the medieval Western Europe liege lord Court and Council (his vassals, and 4) the set of central authorities and institutions controlled by Catholic Church (curia). Elector – one of the seven (three spirits and four secular) of the feudal lords of Germany, elected emperor. Kutyums – in medieval France territorial legal customs of individual regions, seniors, communities. Carly – freedoms peasant commune at the Angles and Saxons. Legislature – 1) the lawful term of the elected representative body or an elected official, and 2) the name of the new legislature in some foreign countries (state parliaments, provinces). Landlord – a major hereditary aristocratic landowner in England. Fief right – body of law in medieval Germany, to regulate relations between lord and vassal. Lee – the ethical, legal and moral norms in China, defines the relationship to members of the Chinese ruler and family relations. Lita – 1) dependent population of Frankish state 2) category of the peasantry in medieval Germany. Lugal – as ensy (head of family, lays the temple), the title right of a number of ancient Mesopotamia. Lu – a set of criminal law in the medieval China. Majoritarian system – a system of determining results of voting in the election of the central bodies, president and other senior officials, in

225

226

History of state and law in the foreign countries

which one candidate is considered elected date, who received the most votes in this constituency. Primogeniture – inheritance system in which all the real estate and title passed undivided to the eldest son of the deceased or to the senior male in the genus. Mayordom – Chief Executive Officer, steward of the royal palace in the Frankish kingdom. Petit jury – an integral part of England judge the 12 jurors who are obliged to consider the merits of the case and render a unanimous verdict. Mancipatio – solemn contribute of alienation valuable things with a special formal procedure in the presence of five witnesses or Pretoria. Mark – the peasant community in Ger many. Medimn – in ancient Athens measure of capacity grain, which served as the unit of measurement of income by dividing citizens into governmental level on reforms of Solon. Menmort – free seigneur in medieval France during the transition inherited peasant land allotments. Meteks – resettling in Ancient Athens free citizens of other Greek city-states, deprived of political rights and custom tax. Ministeriales – 1) higher official staff in the Frankish kingdom, and 2) unfree servants of the king and the great feudal lords in Germany with the military and administrative duties. Magistrate – Single Judge, the lowest link in the judicial system of a number of states. Misdemeanor – in medieval England less serious felony, a misdemeanor, for the commission of which could not be sentenced to death and confiscation of property. Mulk – kind of private ownership of land in the Arab caliphate. Mushkenum – usually royal servant bottom category in ancient Babylon. Navkrariya – Territorial District of Attica headed Prytania, whose residents prepared one ship. Noksalnaya responsibility – in the Roman law kind of the responsibility in which the host servant has committed a tort, rather damages the victim could give the property directly guilty of the offense. Nome – 1) city-state, the original form of public education in the ancient East, and 2) the area of administrative and territorial entity in the centralized Egyptian state. Common law – 1) in the broadest sense – a special family of Anglo-Saxon legal system, contrasted legal family Roman-Germanic (or civilized continental) law, and 2) in the narrower sense – the legal system historically rooted in medieval England of making royal (westminster’s) vessels contrasts statutory (parliamentary) law and equitable; 3) letters:

Glossary

the legal system of England, established as a result of the Norman Conquest in 1066, precisely as a unified system for the entire country, supplied separate regulatory acts and local norms and customs. Total German law – Germanic citizens law based on pandekt law, regulations of the Reichstag. Objective imputation – common in ancient and medieval law, the principle of liability without fault for the guilty of another person. The imposed constitutional act – an act bestowed by the monarch. Organic senatus-consult – France First and Second Empire act amending or supplementing the constitution. Ordalii – court’s test by the water, fire, cross, etc. or judicial duel in order to establish guilty. Ordinance – decree in medieval Western Europe, which had the force of law without the approval of a class- representative body. Ostracism – in ancient Athens a special procedure in the National Research Institute of identifying individuals who threaten the foundations of democracy, with a view to their subsequent expulsion from the country. Weaning from the table and bed – canonical procedure in the countries of Western Europe, the form which under certain circumstances allowed living spouses. Pag – combining several genera within the Roman community (civitas). Chamber chessboard – the highest financial authority in carrying out the functions of medieval England and the Court of Auditors Court of share of crimes financial officials. Pandekt law – a system of norms of Roman law, a foothold in Germany in the XVI century. Pandekt system – positioning system of civil law in the statute books modeled Digest Justinian («from the general to the particular»), division and the total number of special parts, which is regulated in more detail each of the legal institutions. Parantella – the line of inheritance law, including relatives descended from a common ancestor. Paris Parliament – the highest royal court of appeal in medieval France with the right of the demonstration. Particularism law – social class and sustainable territory division rights (fief, city), lack of a coherent national system of law, which was particularly evident in medieval Germany. Pekulyi – in ancient Rome the property provided by the householder subservient son or servant to conduct an independent economy and get a particular part of the income. Pyatisotmerniki – top property level of the free population of Attica on the reforms of Solon, whose members had an annual income in the amount of 500 medimn.

227

228

History of state and law in the foreign countries

Peregrine – citizen as opposed to ancient Rome, the representative of the conquered country or a citizen of a foreign country, who had no civil rights. Perieki – free population of Sparta, its original inhabitants, engaged in trade and crafts. Personal property – in England form of the protection of personal claims. Equity law – the legal system of England, which arose at the end of the XIV century through court decisions of the Lord Chancellor, on behalf of the Crown, based on the norms of the Roman and canon law. Prevost – the head of the administrative territory in medieval France, endowed with administrative and judicial functions. Prekaryi – the act of transferring ownership in the conditional plots on the basis of a contract concluded between a feudal lord and peasant at his request in exchange for patronage and commitment of traditional duties. Prekaryi returned – the act of transferring the lord on the initiative of the peasant ownership and getting it back to ownership with right of redemption ( usually for seven years). Granted Prekary – transfer their peasant land lord and getting it back together with additional land. Prytania – duty members of the Council of Five Hundred 50 within a specified period with a view to direct management of daily affairs in ancient Athens . Probation – probation with strict control of a special service for prisoners in the criminal law of common law family. Publitsianov lawsuit – in Roman law suit with the fiction, is a supplement to claim vindication .

Recommended literature

1. Anthology of general history of the state and right. – M., 1999. 2. Documents on stories of the foreign law. – М., 2001. 3. Anthology of history of the state and law of foreign countries. – М., 2002. 4. Anthology of history of the Ancient East. – M., 2003. 5. Artkhashastra. – M., 1999. 6. Manu’s laws. – M., 2000. 7. Written monuments of the East. – M., 1999. 8. Anthology of history of Ancient Greece. – M., 1997. 9. Anthology of history of Ancient Rome. – M., 1982. 10. The anthology of history of the Middle Ages. – M., 2005. 11. The state and social structure in the Ancient East. – M., 1999. 12. Vasilyev L.S. A course of lectures on the Ancient East. – M., 1995. 13. Ancient and medieval East. – M., 1997. 14. Ancient Egypt. – M., 1990. 15. Veynberg I.P. Man and culture of the Ancient Middle East. – M., 2000.

Еducational issue

Ayupova Zaure Karimovna HISTORY OF STATE AND LAW IN THE FOREIGN COUNTRIES Textbook Typesetting and cover design G. Kaliyeva Cover design used photos from sites www.international-law.com

IB No. 8230

Signed for publishing 06.05.2015. Format 60x84 1/16. Offset paper. Digital printing. Volume 14,37 printer’s sheet. 30 copies. Order No 1054. Publishing house «Kazakh University» Al-Farabi Kazakh National University KazNU, 71 Al-Farabi, 050040, Almaty Printed in the printing office of the «Kazakh University» publishing house