Введение

The scientific processing of the proper Russian canonical law presents special difficulties, which were clearly indicated in the legislative act that first introduced the teaching of this subject in higher spiritual educational institutions. In the 1810 Draft Statute of theological Academies, we read the following remarkable decree: "The canonical law of our church requires the professor's special attention, especially since it has not yet been put in proper order and must be explained by his (the professor's) own research" (§ 153). Since that time, little or, rather, nothing has changed in the external state of the sources of this right: the laws, which since 1721, i.e. from the era of the establishment of the Holy Synod, the Russian Orthodox Church is governed by the closest image, "so far they have not been put in proper order", - they have not been published in a separate systematic or chronological collection 1 ; many of them were not included not only in the "Svod" but also in the "Complete Assembly of Laws of the Russian Empire 2"; others received from the very beginning and still retain the character of "confidential" orders issued by the Department of Orthodox Confession 3 ; finally, those ecclesiastical-legal norms, which, in the absence of a complete code of ecclesiastical laws, should be abundantly developed by the ecclesiastical-administrative and judicial practice itself, can only be made known by chance and in fragments to a person not directly involved in the case 4 . In addition to the currently specified sources of Russian church law, which are difficult to access or completely closed to a learned canonist, he must also deal with such sources, about the content of which it is not always possible to say: is this valid law or not? We are talking about those rather numerous sources on which various provisions and norms of the current law of our church are historically confirmed, but which themselves de jure cannot be classified as historical, since they have never been formally and in their entirety abolished by any later legislative act. All such sources belong to the patriarchal period of our church history. They are mostly borrowed by the Russian Church from the Greek Church, as necessary for practice they were added to the canonical code, which contains the legislation of the Universal Church, and although they are still invariably published in the church books in which they were originally adopted, they no longer retain their former practical meaning. Such is the Nomocanon or Lawgiver, stereotypically issued since the time of Patriarch Nikon (since 1658) under Bolshoi Trebnik, but even in the last century, which aroused various doubts in the Holy Synod 5 ; таковы много статьи Кормчей книги, concerning purely church matters and relationships, i.e. canonical in their content, but not having canonical importance in their origin, and therefore not accepted as part of the new Russian edition of the universal canon - in the well-known "Book of Rules 6". And the entire Kormchaya in general, since the publication of the Code of Laws, the aforementioned Book of Rules and various special canons legalized by the Department of Orthodox Confession, has been relegated to the background in church practice, and since 1836 it has not been published by the Holy Synod anymore. Thus, the position of the Russian canonist in relation to his subject and now, in essence, remains the same as it was at the time of the publication of the above-mentioned legislative "project". Therefore, it is not surprising if we still do not have a complete dogmatic system of the special canon law of the national church. It is still necessary to prepare material for such a system; it is necessary to perform a considerable amount of preliminary work on the very sources of this right in order to determine their relative merit and to indicate to what extent they contain a valid right, or one that should be recognized as valid. It goes without saying that the immediate subject of such works should be those very sources, regarding which various fluctuations in church legislation and practice have long been discovered and now continue. "Own researches" of the learned canonist, addressed to this subject, should lead to the resolution of the following questions: where do those sources come from, the historical origin of which is unknown 7 ? What was and remains their practical significance? How do they relate to the content of the main canon of the church, and to what extent do their special, peculiar definitions correspond to the needs of modern church life or the nature of the canonical institution (for example, marriage) that they concern? Only such works (if, of course, they are performed with knowledge of the matter and in good faith) can contribute to "bringing the canon law of our church into proper internal order": they will correctly indicate the direction that church legislation and practice should follow in relation to the content of these sources, and will provide positive, critically refined material both for the future, long-desired and urgently needed codification of Russian canon law, and for the construction of a scientific and dogmatic system ego In view of the specified, truly urgent task of Russian ecclesiastical jurisprudence, we undertook, about 15 years ago, the painstaking work of a critical edition of the above-mentioned Nomocanon under Bolsh Trebnik, with a detailed commentary and assessment of its content from a historical-canonical and practical point of view, a work that did not go unnoticed either by scholars or in church-government spheres. 8 After that, we started the same work on the second, very important source of Russian canonical (namely, marriage) law - the 50th chapter of the Book of Kormchai. But in this matter we were warned by our honorable comrade in science, professor of St. Petersburg University, archpriest M. I. Gorchakov. In 1880, he published a book under the title: "O secret marriage. The origin, historical and legal significance and canonical dignity of the 50th (according to the lists [editions?] of patriarchs Joseph and Nikon 51st) chapters of the printed book of Kormchei. The research of the venerable professor, for which he was awarded the degree of doctor of theology from the Kyiv Theological Academy, undoubtedly makes a very noticeable contribution to our poor canonical literature. It reveals a significant amount of new material on the history of Russian marriage law, presents a detailed historical-canonical analysis of the content of one of the main sources of this law, and raises many questions that are of great importance not only from a scientific point of view, but also from a practical point of view. Despite all that, Father Horchakov's book in all its parts often has the character of a hasty, as it were, draft work, in which even a not particularly sharp eye can see "white seams", a lot of mistakes, oversights, frequent and tiresome repetitions, hasty conclusions and even contradictions. Apparently, the author himself was aware of the unsatisfactoriness of his work for those familiar with the case. At least, in the preface to his book, he asks "critics and reviewers to have condescending attention to the fact that, in fulfilling his task, he had to deal a lot and for a long time with raw - archival and manuscript - material and was, moreover, struck by misfortune, which interrupted his peaceful work more than once." 9 We do not understand how "prolonged handling of raw material" could adversely affect the scholarly dignity of the book and prompt the author to ask for "condescension": no scholarly work on Russian canon law claiming originality can do without raw material, and the more effort is put into the selection and processing of this material, the better, of course. Another matter is the grievous grief that struck our honorable comrade: it arouses in us the most vivid participation in his personality, but we cannot and rightly transfer this participation to his book. The book only makes us regret that the author did not postpone its publication until a second, more convenient time. And under the best of circumstances, one should "make haste slowly" with scholarly work. With the appearance of Professor Gorchakov's book, the task of our work on the 50th chapter of Kormchei naturally became more complicated: the initial, positive task was joined by a negative one - critical in relation to the work of our predecessor. The latter was performed by us in a number of articles printed in different books of "Christian Reading" for 1882–1886. 10 Here we tried, if possible, to solve the first problem in the same completeness. This turned out to be inconvenient in many ways. The plan of research on the 50th chapter of Kormchei that we adopted diverged too far from the plan of Professor Gorchakov's book; and the material itself, which we had at hand, opened up such aspects in the subject of research, which, due to the nature of the material, could not have been considered by our predecessor. In this state of affairs, of course, it was difficult to maintain the desired balance between the critical and positive elements of our work in the above-mentioned journal articles: the latter was sometimes overshadowed by the first, moved to the second plan, or even did not find its proper place at all. As a result, our own work, directly addressed to the 50th chapter of Kormchei, lost the character of integrity and harmony. Therefore, we decided to redo it again, with a significant reduction of the critical element in favor of the positive, and publish it in the form of a separate book dedicated to the methodical study of the 50th chapter of Kormchei, as a historical and practical source of Russian marriage law. Of course, our work will give many reasons for various critical remarks. But we wish and expect only one thing from our critics: knowledge of the matter and a conscientious attitude towards it. Only since 1869, a special editorial commission, approved by the Most Holy Synod, started the publication of the "Full (chronological) assembly decreed and ordered by the department of the Orthodox confession of the Russian Empire." To date, only five volumes of this "Assembly" have been published, which include the "regulations and orders" of only the first seven years after the establishment of the Holy Synod (from January 25, 1721 to May 7, 1727). A clear sign that in church and government spheres this matter is not recognized as urgent. The now-mentioned edition in comparison with the "Polnym sobrany zakonov" for the same year serves as visual proof of this. Such, for example, are some orders of the Department of Spiritual Censorship and most of the laws on schismatic sects. However, in recent times, the veil that hides the area of ​​church practice inaccessible to us has become less impenetrable than before, thanks to some official publications and the works of private individuals, who opened the archives of the church-government institution. From the official editions, we will point out: 1) "Description of documents and cases stored in the archive of the Holy Governing Synod", published by the above-mentioned Editorial Commission of the Holy Synod and published so far in 7 volumes (until 1727); 2) on the "Collection of Opinions and Opinions of Philaret, Metropolitan of Moscow and Kolomenskogo", published, by the decision of the Holy Synod, under the editorship of His Holiness Savva, Archbishop of Tver (4 volumes were published). Among the works of private individuals, the following are especially important for the canonist: 1) "History of the Moscow eparchial administration" by N. Rozanov and 2) two capital articles printed in the May and June books of "Orthodox Review" for 1875. and attributed here (erroneously) to the late Reverend John of Smolensk, namely: 1) "Foundations of the decisions of the Holy Synod on spiritual and judicial matters" (May, pp. 40–58) and 2) "General principles by which the Holy Synod is guided in applying the rule of the ancient church" (June, pp. 198–215). These articles are only the beginning of an extensive anonymous treatise found in the papers of the Most Reverend John, but not written by him. To our extreme regret, further printing of this treatise was stopped by the powerful veto of the real author. See the preface to our edition of this Nomocanon (Odessa, 1872). We understand articles not only of ecclesiastical origin, such as chapters 50, 53–62 and 69 of Kormchei, but also many Byzantine laws contained in the second part of this book, mainly in ch. 42 and 44, where canonized fragments of Justinian's legislation on church affairs are set forth, so to speak. One of these excerpts (chapter 42, article 48) was cited by us in the opinion that, during our time as a teacher of canon law at the Kazan Theological Academy, the late reverend Athanasius of that place was required of us in the case of a second-marriage accomplice. The conclusion of the spiritual consistory, compiled in the sense and on the basis of this opinion, was recognized by the Holy Synod as correct (see the May book, Pravoslavnoe Obozrenie 1875, p. 51). The opinion itself was printed in the "Manual for rural pastors", if we are not mistaken, in 1863 or 64. We emphasize the word "historical" in order to show that, from a legal point of view, all sources of law of unknown origin, if they are included in the legislative code, must be produced by the publisher of this code. It was printed in 1872 in Odessa under the title: "Nomokanon pri Bolshom Trebnik, published together with the Greek original, still unknown, and with the publisher's explanations." Approving reviews of this book were given by the Imperial Academy of Sciences, which awarded it the small Uvarov Prize, many Russian spiritual magazines and the German Archiv für das Katholische Kirchenrecht in 1876 (2 Heft, p. 380 ff.). Among the spiritual hierarchs, the late Most Reverend Agafangel of Volhynia treated our book with special sympathy, who ordered that it be taken out to the church libraries of his diocese, where almost the entire edition, which was published in a small number of copies, was distributed. The book is dedicated to the memory of father Gorchakov's late wife. Namely: 1882 No. 3–4, pp. 367–404; 1883 No. 3–4, pp. 358–406; 1884 No. 3–4, pp. 370–419 and No. 9–10, pp. 385–416; 1885 No. 11–12, pp. 612–652; 1886 No. 1–2, pp. 111–132. You may be interested in: