Common law and the institute of blood vengeance

2.    Customary law

Customary law refers to legal rules whose formal source is not found in a regulation passed by legislative body, but in the customs of social environment, which were created gradually and spontaneously (Blagojević, 1985, p. 958). A custom is an unwritten general rule, which was created by long-term adherence to the same way of behaviour and which is accepted by members of a particular social group. On the other hand, law is an expression of concentrated will, while the creators of customs act spontaneously, they are anonymous and there is no consciously coordinated action among them with the aim of creating customs. Therefore, Stanković and Vodinelić state that certain theorists say that “law is closer to man’s will and custom to his instincts” (1996, p. 42). Stanimirović and Divac (2023) point out that the customary law, during the last two centuries, can be understood as a set of norms of a certain content that are adhered to and that with their understanding and a value system they protect an organized society such as a tribe, a clan, a brotherhood, a certain environment or a social class and an ethnic minority ( p. 57).

From a historical point of view,until the establishment of written sources of law, customs were the exclusive rules of behaviour that regulated life in a social community. They were created spontaneously as an expression of religion, culture, moral and tradition within people. Also, they are adapted to social reality, they are different, bearing in mind different social groups that apply them (Popov, 2001, p. 29).

“A custom is a social norm that is the result of a long and sponatneous construction by the social mass acting diffusely without a special organization for that purpose. Certain ways of people’s behaviour in specific situations are repeated many times so that it becomes a habit through a long repetition and it starts to be considered obligatory to act this way in the future in given occasions. A custom, therefore, represents a norm created by a long repetition and which derives its binding force from this repetition” (Lukić, 1995, p. 30). From the mentioned above, the condition for creation, that is emergence of customs, is the maintenance of relative stabilty of social relations (Krstić, 2010, p. 11). A custom is formed through a long period of time by “repeating adequate behaviour for a social community” and on the basis of repeated practice it becomes a social obligation (Čulinović-Konstantinović, 1984, p. 53). Ancient customs come from the time of the original community. Customs are resistant to changes because they are deeply rooted in the social, collective and individual consciousness of people. They are passed down ‘from generation to generation’, so by repeating the same way of behaviour they have become a habit, which comes naturally (Blagojević, 1994, p. 38). On the other hand, Jering (1998) emphasizes that it is necessary to distinguish a custom from a habit, because a habit is a certain behaviour that has been permanently retained and established in a certain community, but does not contain a normative element, since nobody will be reprimanded due to, for example, having different habits than the majority. According to the same author, “a habit adheres to what is purely external, it is an expression of continous action, and it does not judge the content of an action. However, a custom simultaneously expresses a judgement about the content of an action, a judgement that this content is good. A custom as such is a good custom. Failure to act according to a custom is considered a ‘sin’, as a violation of a custom, and there lies the reproach that something happened that should not have happened. When it comes to a habit, these terms are not used, which indicates it is completely different from a custom” (p. 270). In a system where a custom has become a social norm, an individual cannot commit an offense and avoid responsibility, because the consequences will surely come, which the community will take care of. One of the sanctions, i.e. norms of customary law is a blood revenge. Where the first written traces of blood revenge can be found, when did it originate, what are the specifics of its execution and which are its main institutions are questions that will be answered in this paper.

3.    The first mentions of a blood vengeance

According to the Bible, the Jews were also familiar with the blood revenge and the system of composition, as all the ancient nations at the beginning of their development. Although the blood revenge was retained in the Old Testament, it did not remain in its original form beacuse it was precisely prescribed when and how it would be carried out. The content of the second and the fifth books of Moses is primarily taken into account here. “According to those regulations, the avenger was authorized to pursue his executioner and return the evil done to him with the same measure , i.e. ‘life for life, an eye for an eye, a tooth for a tooth, an arm for an arm, a foot for a foot, a rope for a rope, a wound for a wound, a bruise for a bruise. However, a distinction was made whether the injury was caused negligently or intentionally, so in the first case the culprit could save himself by fleeing to some kind of asylum, in which case the avenger lost the right for revenge” (Jelić, 1927, p. 73). It is important to mention that in terms of revenge there was no difference between a man and a woman, as well as between a full-blooded Jew and a settler, while those who injured slaves were only responsible for their murders and not for the injuries they inflicted on them. Sharia law also had within it ancient forms of repression. More precisely, blood revenge is the only form of revenge retained in the Koran, and only for a murder with intention. At the same time, it is individualized according to the talion system. The composition is prescribed in the Koran only in the case of involuntary murder, and it is paid to the family of the murdered. (Kuran, p. 49).

Ruska pravda, the most complete collection of Old Slavic customary law from the 11th and 12th century contains three basic forms of the original social repression: exile from the community, blood revenge and ransom (composition). The first article of the oldest edition of Russian justice said: “If a man kills a man, then a brother takes revenge for a brother,or a son for a father, or a nephew or a sister’s son. If there is no one to take revenge, then 40 hryvnias for the head.” As mentioned in the article above, it can be concluded that the law imposed reconciliation as an obligation, and replaced revenge with the precisely determined amount of a ransom, and later this ransom turned into a fine (Šćepanović, 2003, p. 59).

In our region legal monuments from the era of Nemanjic appear in the 12th century and contain the institution of composition for blood crimes which was called “vražda (money compensation)“.4 So for example, in the charter of king Milutin (1299/1300. year) which was addressed to the monastery of

Saint George on Serava near Skopje, prescribed that money compensation is not taken from the town and village, but from the murderer, and on that basis it can be concluded that personal responsibilty had already been introduced. “It is believed that our medieval states destroyed the tribal society as well as the blood vengeance, but that the arrival of the Turks, in a yet unexplained way renewed the tribal way of life and also the blood vengeance” (Karan, 1973, p. 25). According to the same author, many scientists consider that the tribal way of life had never been completely destroyed but continued to exist with certain changes after the arrival of the Turks. Documents about it can be found in the Turkish and Dubrovnik archives, in different sources such as texts on stacks, French authorities’ orders, various statutes and laws, travel writers’ records and of course, in people’s memory.

The customary law of Albanian tribes was recorded no sooner than in the 19th century as Law of Leka Dukađin (Duričić, 1998). It is assumed that this law was named like this because of the reputation Leka had as a warrior in his community and beacuse he was a fair judge and knew the customs of his people. (Karan, 1985, p. 20). His law was passed down orally, from generation to generation for years in this community. These rules were collected and systematized in 75 points by Jovan Lazović and called ‘Law of Leka Dukađin’ (Stojković, 2020). Law of Leka Dukađin5 precisely describes the occasions that obligate revenge, the ways it should be done and the limitations that had to be followed unconditionally.

4.    Blood vengeance – origin and causes

It can be said that the blood vengeance is a legitimate behaviour on a certain level of the development of society. In the original community when the intergroup contacts and relations became more frequent and more complicated, the issue of protecting the members of a clan community from injuries and murders by members of other clans arose. Taking into account the protection of blood relatives who were obliged to protect and help each other, Samardžić (1967) states that it was normal that the institution of collective responsibility of the entire genus arose from this collective concern. The purpose of blood revenge was reflected in the fact that the members of one community, that was considered injured, took revenge on the members of other community, which the perpetrator belonged to.

On the injury or the murder was responded with the blood revenge which was directed not only to the person who committed the injury but to all members of the group. This is the first, primary phase in the development of the blood revenge. This form of the blood revenge is called the total revenge (Šarkić, 2011, p. 26), becuase it is done by kindred against kindred, group against group. When it comes to this unlimited revenge, both the perpetrator and any member of his group can be killed (Garson, 1926, p. 22). The blood vengeance in this period often turned into a war of extremination because one revenge due to its disproportion provoked and imposed another revenge, so the multiple revenges turned into a war that could end with the total destruction of a group that was numerically smaller and which therefore did not have the possibility to retaliate in the same measure. The consequences that were caused by the unlimited blood vengeance were very often disastrous for the feuding communities, so even their survival was questioned. The things mentioned as well as the development of the social consciousness had the effect of abandoning the original type of unlimited total revenge and reducing it to a narrower circle of people, that is, to the deliquent’s family and his closer relatives. Over time, the blood vengeance transformed into the revenge aimed at the deliquent himself, that is, the perpetrator of the crime. In this period, an individual exclusively becomes responsible for his actions (Vidović, 1990, p. 167).

When it comes to actions, that is, the causes that obligate revenge, they are accurately and extensively stated in the Law of Leka Dukađin. Revenge always occurred if someone was killed as a guest, and it was almost always obligatory if the victim of the crime was a child, a woman or an old man. Also, the revenge could and had to be done for many other actions ,especially those regarding the insult of honour and reputation, as it was at the same time the insult of the whole family of the one to whom it was inflicted. So, for example, honour could have been taken away from the man if someone spoils his mediation or an oath, if he takes his wife away from the house by force, if his house, barn, warehouse and other rooms in his yard were broken into, etc. (Karan, 1985, p. 22).

5.    Blood vengeance – specifics of execution

Blood vengeance, as any other behaviour has its rules that determine precisely when it can be carried out, and when it cannot be carried out. These rules obligate revenge, but at the same time limit it and even prohibit. The right to blood revenge, according to the rule , is given by the committed murder or some action, which with its consequences is equated with these acts. In this case, the motive of the murder for which the revenge is carried out, as well as the way in which it was carried out, is of little importance. It can be said that the revenge was a duty , because if a person (a man ) does not carry it out, he completely loses reputation and honour in the community, to which people were always very sensitive to. For that reason, the one who did not carry out a revenge in the community was considered a second class citizen. That is why blood revenge was not only a law, but duty as well.

Blood revenge is public. The avenger was obliged to publicly announce his action i.e. the murder so that the family of the murdered would not be mistaken who the perpetrator was, but also that it would be known who carried out the revenge. Revenge was announced with gunshots, after which the avenger surrendered peacefully to the authorities and its proceedings. The duty of the avenger is to announce himself to his executioner and to warn him about the revenge so he would know who is attacking him and why, so that he has the opportunity to defend himself. The weapon of the murdered was not allowed to be taken, and especially not to be robbed, since such action was considered shameful.

As a rule, revenge could be carried out in any place with certain exceptions. So, for instance, revenge could not be carried out in places of worship or where believers would gather. Also, it could not be done when the executioner was in the company of a woman or under oath (Karan, 1985, p. 29). Customs require that at the moment of carrying out the revenge it is penam sanguinis paid by the victim, so in that way the community is warned that the revenge is taking place (Čučković, 1971, p. 259).

Vengeance could not be carried out on the priest beacuse he was unconditionally exempt from it, as well as the church was protected. On the other hand, revenge could be carried out on any male member of the family, brotherhood or tribe which owes blood regardless of their age, which means it could be a child in a cradle. However, there were very rare cases when vengeance was carried out on children or the elderly, since such an act was considered unheroic and shameful, beacuse in both cases the victim was weak (Karan, 1985, pp. 29–32). On the other hand, the most honest people, those who enjoyed the greatest respect, the heads of the family, who were at the top of the family hierarchy were in the greatest danger.

6.    Blood revenge institutions

The main institutions of customary-law rules of behaviour, and blood revenge as well are oath and conciliation. In spite of the fact that blood revenge was considered sacred duty of a clan and a tribe, there was a search for conciliation between the warring parties. Search for the reconciliation would start by giving an oath by the damaged party. At the same time it is important to emphasize that the granting of an oath and conciliation always depended on the degree of guilt of both parties involved in the conflict, as well as other relevant circumstances (Šćepanović, 2003, p. 61). From a psychological point of view, blood forgiveness has very valuable consequences, which are reflected in the fact that ‘ it provides the person in question with social respect ( because reasons for the boycott cease), while the person’s sentiment of selfrespect remains intact, which closes new possibilities of revenge since the main motive is satisfied in the best possible way for both parties (Karan, 1971, p. 62).

• 6.1.    Oath

• 6.2.    Conciliation

  As a means of curbing blood feuds, reconciliation between the blooded parties appears, known as composition (lat. componere, which means to reconcile), and for which in our customary law the term reconciliation is used. Jelić states that blood revenge and reconciliation are two completely different institutest that are fundamentally ’sharply’ different. He further explains that the essence of blood revenge consists of returning evil to evil in proportion that according to the understanding of the avenger corresponds to the inflicted evil, and the purpose of the reconciliation consists of proportionate material compensation that the offenders give to the injured for the injure of damage caused. In other words, revenge is obtaining satisfaction by spilling blood of its offenders and the reconciliation is settlement through material compensation⁷ (Jelić, 1927, p. 78). Reconciliation occurred more often and more easily if the family of the murdered person was poor and weak, so the excecution of revenge was more difficult or could call into question further survival of the family. According to the customary law reconciliation and settlement could occur in the following cases:

An oath is in many aspects an exceptional institution of blood revenge. It is actually a truce that can end in two ways, by a conciliation or a revenge. A conciliation ends a conflict, revenge continues it and an oath is somewhere between.

According to the rule, an oath must not have been broken. Whoever broke the oath brought upon himself general contempt and boycott of the whole community. Persons who violated the oath were deprived of military honour, their weapons were confiscated and publicly broken. Murderer who was given an oath for a certain period of time could walk freely and carry out his duties, but was not allowed to stand out too much in the community. The members of his clan guaranteed that he would live modestly and not misuse the given freedom (Šćepanović, 2003, p. 52). Oath is usually given by the host, that is, the head of the family, and it can also be given by other older man. In any case, it must be a person who knows his family well and the situation in it. If it is possible, all male members of the family are present at giving the oath, so that everyone knows about it and so that no one of them can, if he commits revenge under the oath, justify that he did not know abut it (Karan, 1985, p. 40). In fact, an oath is not an ordinary truce, but wisely considered preparation for reconciliation.

• •    if the murdered person deserved death by his work and incorrect behaviour towards the killer or members of his family,

• •    if the murder happened in the same brotherhood,

• •    if accidental inadvertent or mistaken murder happened,

• •    if two people argued and in that argument they mutually wounded each other, so one of them died as a result of the wounds received

• •    On the other hand, reconciliation could not occur:

• •    if the murder was committed out of jealousy or envy, or from an ambush, or by deception ,

• •    if the murderer was bribed,

• •    if someone’s guest was killed,

• •    if someone hits somebody else intentionally and humiliates him in the public place,

• •    if someone raped someone else’s wife or took her away from her husband, or when a woman becomes pregnant with a man who is not her husband,

• •    if a husband found adulterer with his wife,

• •    if someone ’makes a mistake’ with a girl and will not take her for his wife,

• •    if someone maliciously hurts someone else’s wife and as a result she gives birth to a dead child,

• •    if someone proposed to someoe else’s fiancee or her parents ’give’ her to another man and

• •    if someone hit somebody else intentionally and belittled him in a public place (Šćepanović, 2003, pp. 61–62).

7. Conclusion

Pavković (1977) states the presence of bloody reconciliation and the substitution of a dead man with alive one, which contain elements of revenge and reconciliation, but it is not about revenge nor material compensation, but above all about returning into the original state of social and economic balance. As an example, he says that among the Eskimos,when a man is killed, his family can force the killer to take place of the murdered man in his group. And among some African and black people, as well as among the North American Iroquois, father adopts the murderer of his son and treats him like his own son. A very special custom of blood atonement is giving a wife for the murdered man. Among the Bedouins of Syria and Jordan, the price of the blood of the murdered man is called diya and it consisted long of fifty camels, one milking and one racing camel and one ghora , that is a young free girl, who is a daughter, sister or aunt of the murdrer. She was married to the son, brother or a father of the murdered man without any gifts. If the murdered person was a sheik or belonged to a respectable and strong brotherhood, two or three girls were given. A girl married in this way did not have a full status of a wife, and she stayed in marriage until she gave birth to a male child (female children were not taken into account), and until he grew up and was able to carry weapons. During all that time it was considered that she was ’borrowed’ to the relatives of the murdered in order to ’provide’ a replacement for the lost memeber of the family by giving birth to a male child. When she fulfilled her’duty’ ghora was free, and her current husband did not have any rights ove her (Pavković, 1977, p. 630).

Our oldest sources, from the Middle Age indicate that after the murder peace could be established by godfatherism and fraternity, and also by marriage between the parties making peace. Blood reconciliation is not done right after the murder, because the injured party would not agrree to it, but later, usually after one year. The most important act of reconciliation is ritual and public acceptance of godfatherism and fraternity.8 Reconciliation was not offered to the brotherhood of the murdered man by the killer, but by the close and distant relatives. In all cases of blood reconciliation starting from the Middle Age new fraternities were in fact a certain type of social adoptive kinship. It preserved a clear symbolism of a man killer alive and not just anyone but the one who committed a murder. However, Pavković (1977) emphasizes that there is no known case that a new ’brother’, ’son’ or ’father’ really moved into the home of the murdered one and replaced him in everything. Also, it is not known if and to what extent they replaced the murdered person in a social and ordinary life.

Blood revenge appeared at a time when the original community was at a lower level of development and its application was conditioned by underdevelopment. At first, total blood revenge was applied, with the fact that in the further development of social communities it evolved so it was narrowed down to the circle of close blood relatives and finally exclusively to the person of deliquent, i.e. the perpetrator of the crime. Over time, it was mitigated by the principle of talion, in the sense of proportionality and the sameness of the execution method. The introduction of talion meant a major progress in the construction of the system of responsibility, and in geeneral, because the revenge was aimed at the perpetrator of the offense and it was proportional, i.e. equivalent to the injury caused. Also, it is important to conclude that the punishment through the application of talion was at the same time the most elementary idea that was accepted by the state as a sanction against a legal violation.

As it has been emphasized before, blood revenge was disproportionate, because the entire brotherhood, even tribe was exterminated. Constant conflicts threatened to poison the entire community which is why it had to look for ways to somehow curb this behaviour, if it could not be removed in any way. Thanks to an oath, the agreed rules had to be respected under which revenge could not be carried out. Also, blood revenge could not be carried out on any male member of the family of the murderer’s family, but as a rule on him, thus narrowing the possibility of community war over one murder, which was the rule in an early blood revenge. However, an oath did not end, but only interrupted enmity, which is why it was necessary to find some other way to curb the blood revenge, and even to abolish it if possible. It can be concluded that it was curbed by the creation and introduction of the institute of reconciliation, i.e. composition, which symbolizes reconciliation through material compensation or symbolic acts of social bonding. Blood revenge was gradually replaced by a composition that sought to restore social and economic balance. And the role of ’blood vessels’ and rituals such as godships and brotherhoods emphasize the importance and maintenance of peace. Over time reconciliation became stronger as a more acceptable solution, while blood revenge was gradually abolished.

Kovačević Danijela

Univerzitet Privredna akademija u Novom Sadu, Pravni fakultet za privredu i pravosuđe u Novom Sadu, Novi Sad, Srbija

Rajaković Jovčić Vesna

Univerzitet Privredna akademija u Novom Sadu, Pravni fakultet za privredu i pravosuđe u Novom Sadu, Novi Sad, Srbija

OBIČAJNO PRAVO I INSTITUT KRVNE OSVETE

APSTRAKT: Običajno pravo predstavlja jedan od najstarijih oblika pravne regulative koji se razvijalo kroz nepisana pravila i norme ponašanja koje su uspostavljene u najranijim zajednicama. Ovo pravo se zasnivalo na običajima koje su članovi društvene zajednice usvajali i prenosili sa generacije na generaciju. U nedostatku kodifikovanih zakona običaji su omogućavali održavanje društvenog reda i rešavanje sukoba unutar zajednice. Jedan od najpoznatijih normi običajnog prava bio je institut krvne osvete. Ona je predstavljala način održavanja ravnoteže i možemo reći „pravde“ unutar zajednice koja se ogledala u tome da se ubistvo ili povreda uzvraćala istom merom prema počiniocu ili prema njegovoj porodici. Ovo pravilo je u najranijim periodima bilo duboko ukorenjeno u verovanju da se jedino osvetom može vratiti izgubljena čast i da se može uspostaviti ravnoteža unutar zajednice. Uzimajući u obzir važnost instituta krvne osvete u okviru rada analiziraćemo iz kog perioda i u kojim dokumentima i kada se prvi put pominje krvna osveta, koja su njena obeležja, kao i njene dve ustanove  besu i umir jer se u njima mogu pronaći određeni elementi za njeno suzbijanje, pošto su pomenute ustanove, po svom nastanku i nameni, možemo reći, protiv ovog običaja.

Ključne reči : običajno pravo, običaj, krvna osveta, besa, umir.