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4JURIDICAL SCIENCES
КОДИФИКАЦИОННАЯ РАБОТА В РОССИИ ПО КАЗАХСКОМУ ОБЫЧНОМУ ПРАВУ В Х1Х
ВЕКЕ
Ахметова Н.С.
к.ю.н., профессор Карагандинский университет им. Е.А. Букетова
Серикбаева С. С. м.ю.н., старший преподаватель Карагандинский университет им. Е.А. Букетова
CODIFICATION WORK IN RUSSIA ON KAZAKH LEGAL CUSTOM IN THE 19TH CENTURY
Akhmetova N.,
Candidate of Juridical Sciences, professor Karaganda University named after E.A. Buketov
Serikbaeva S. M.Jur., Senior Lecturer of Karaganda University named after E.A. Buketov
АННОТАЦИЯ
В статье исследуются основные этапы и особенности функционирования обычно-правовой системы казахов, связанные с кодификационной работой России по обычному праву казахов Х1Х в.Санкционируя традиционные институты ответственности в качестве мер наказания, применяемых судами биев, царское правительство старалось приспособить их для осуществления своей колониальной политики. Рассматриваются процессы в противоречии и некоторые формы правовой аккультурации.
ABSTRACT
The article examines the main stages and features of the functioning of the customary legal system of the Kazakhs, associated with the codification work of Russia on the customary law of the Kazakhs in the 19th century. The tsarist government tried to adapt them to the implementation of its colonial policy by sanctioning the traditional institutions of responsibility as punishment measures used by the courts of the biys. Processes in contradiction and some forms of legal acculturation are considered.
Ключевые слова: обычное права, кодификация, колониальная политика, царское правительство, суд биев, адат, традиционные институты, религиозная экспансия, управление казахской степью.
Keywords: customary law, codification, colonial policy, tsarist government, biy court, adat, traditional institutions, religious expansion, management of the Kazakh steppe.
The history of law is a continuous sequence of legal borrowings and influences of one legal system on another. The fate of legal systems partly depends on their intersections, the additions made, the abolitions, and the consequent fragmentation and disintegration. These connections between systems are not exclusively the property of our era, we find them in the distant past: the code of Hammurabi found application outside of Babylon; the reception of Roman law by the peoples conquered by Rome, and then by many European states of a later period; Islamization of the people conquered by the Caliphate, and later by the Ottoman Empire, ensured the assimilation of Sharia law by these people. Even a general theory of the movement of law has arisen to explain this phenomenon in the history of law [1]. The reception of Roman law was a gradual process that stretched over several centuries, while it included, with certain restrictions (and often borrowed), many normative regulators of local legal systems. The situation was different with the colonization by England, France, Germany, Russia and other European powers of vast territories of a non-European area: the process was more assertive and in one direction; there was an
active economic, cultural, and religious expansion along with the transfer of the right of the metropolis to the local population. This process of inoculation of alien elements of civilization by a traditional society was called acculturation in ethnology, and then in legal anthropology. Generally, acculturationincludes phenomena that come from direct and prolonged contacts of people, groups and individuals with another culture, as a result of which noticeable changes occur in the original culture. Moreover, we are not talking about any "borrowings" (receptions), but about a purposeful change by external forces of the original culture.
Ways, forms, mechanisms of transfer of rights, with the help of which, forcibly or without coercion some right is transferred by one society to another, which accepts it, are diverse. However, it should be reported that traditional law was never introduced into colonial law. On the contrary, the mechanism of reintegration of local customs testifies to the progressive transformation of traditional law as a result of the influence of exogenous legal values.
In the colonial era a situation was created in Kazakhstan when the legal and judicial systems of traditional Kazakh and Russian societies coexistedas a result of the introduction of Russian law. The beginning of the application of the main mechanisms of legal colonization can also be attributed to this time.
From the very beginning, the Russian government proceeded from the need to subject the Kazakh population to the action of Russian laws, especially since their application took place in places close to the European part of the empire. But a serious obstacle to this, as Russian officials correctly noted, was "the inadequacy of Russian civil laws, designed for a settled rather than nomadic population and not providing for those complex legal relations that arise from such institutions as, for example, polygamy or purchase by bridewealth, or from pasture disputes reminiscent of patriarchal times" [2]. This was the resultof the preservation of customs that had developed over thousands of years. Representatives of the Russian administration, recognizing this circumstance, when determining their position at each specific stage, found out whether there appeared in the life of Kazakh society such aspects of life that can be solved not by "lagging behind" customary law, but by decrees borrowed from Russian laws. The military governor of the Turgai region, Major General A.K. Gaines wrote: "... it is not known that state interests demanded the introduction into the life of the peaceful nomads of Russia of such elements that, despite their relative reasonableness, would turn their lives upside down, their economy, their old routines" [3]. State goals required political restraint, the ability to wait and understand the time when "the changed life will require a change in laws, a gradual change, logically arising from real needs and needs that have arisen. It was necessary to take into account that "Kyrgyz life is unlikely to benefit from the replacement of customary law by law, gradually formed under conditions alien to the steppes, material and moral" [4, 44-45].
The Russian government did not so much take into account its specifics as a social phenomenon that changes under the influence of socio-economic conditions, but proceeded from its strategic goals in this region in determining its policy in relation to the Kazakh customary law in each specific period of its development. Except for the unsuccessful administrative and judicial reform of Baron Igelstrom, which did not give practical results, the Russian government until the 20s of the XIX century. basically pursued a policy of "nonintervention" in the internal legal life of the Kazakhs, with the exception of issues of political and national importance. It left the Kazakh customary law largely untouched, since it did not have any satisfactory information about the history of the Kazakhs, their customs and personality. During this period, the administration recognized customary law as one of the sources of law in force in Kazakhstan, trying to use customary legal norms in the implementation of its colonial policy.
In accordance with its policy of so-called indirect control, the Russian government tried along with other mechanisms for the implementation of imperial law, to
apply the recording of customs and codification byhav-ing abandoned the radical path of breaking old traditions and norms.
By the decrees of Catherine II of April 30, 1778, the chief commander of the Orenburg region was ordered to draw up a code on the basis of customary law of the Kazakhs. A more or less extensive study of Kazakh customary law by officials of the Russian government, as well as historians and ethnographers, began in the early 20s of the 19th century. The reforms of the 1920s made this question relevant.
The introduction of the Russian administrative-legal system in the Kazakh steppe began with the approval of the "Charter on the Siberian Kirghiz" in 1822. The Charter almost until the mid-60s of the XIX century, with some additions, was the main legislative management of the Kazakhs of the Siberian Department. The administrative and judicial reform carried out by the tsarist government on the basis of the "Charter on the Siberian Kirghiz" of 1822 entailed the first serious restriction of the scope of Kazakh customary law. And yet, the autocracy did not dare to fully regulate intra-clan relations and sought to create the appearance of self-government by the population of the region. This position of the government is explained by the fact that strict regulation of all aspects of life could alienate the indigenous population of the annexed region. That is why government decrees ordered service people to treat "gentiles" with "meekly." To guide the practical activities of the District orders for the next two years from the beginning of the opening of the first Karkaralinsky order by the Omsk regional authorities on April 11, 1824, special "Rules" were developed. They prescribed, first of all, to be careful when implementing the measures adopted by the Charter of 1822. "Management cannot yet stand alongside the one to which society, which is already accustomed to being under the protection of laws, is subordinated," the rules warn, "the most just and sudden punishment for crimes can eliminate the Kirghiz (Kazakhs. - A.N.) and remove them for a long time from the improvement that the government has been bringing them closer to for several years. Therefore, the order itself should with sincere zeal inspire the Kirghiz (Kazakhs. - A.N.) about the benefits of this device, avert with meekness and friendliness all the disorders that occur between them, warn against punishment and punishment, to which they can subject themselves for committed crimes, in a word, to prepare them for submission to the law" [4, SP1].
In its policy, the government was forced to take into account the historical, national, religious and cultural features of the development of the Kazakh region. The authorities were aware of the impossibility at first of complete subordination of the Kazakh population to Russian legislation.
A certain role in this relation was also played by the desire of the ruling circles to preserve the existing relations in the region, based on property and social inequality. In accordance with the policy envisaged by them, the so-called indirect control, they tried to use traditional institutions, norms in order to create a social
support for their domination in the person of the aristocratic elite, to ensure the most favorable conditions for the exploitation of the local population, while maintaining traditional requisitions and duties, collective community responsibility, the supply of labor for so-called public works, etc. These circumstances forced the Russian government to recognize, within certain limits, the jurisdiction of the court of biys and sanction customary law and custom. According to the Charter of 1822, Kazakh customary law was recognized as an effective source of law in all civil cases and for most categories of general criminal cases of Kazakhs. The courts of the biys were given the right to decide the cases referred to their jurisdiction "verbally", according to the Kyrgyz law and customs.
On the other hand, the Russian government sought to streamline the management of the Kazakh steppe, weaken civil strife, which was largely facilitated by the development of agriculture, settlement and trade among the local population. At the forefront of colonial policy was the question of the political subjugation of a vast territory, but, nevertheless, the desire itself had an objectively progressive meaning. It was from these positions that the authors of the Charter of 1822 proceeded, providing for the codification of the customary law of the Kazakhs.
M.Speransky during the administration of Western Siberia drew attention to the need to inform the custom of the "foreigners" inhabiting this region. In the "Charter on the Siberian Kirghiz" of 1822, it was said that "since the laws and customs in each tribe have some and often important difference from others, being preserved through oral traditions, they can be inconsistent and indefinite. Therefore, it was proposed to the local authorities "from the most honorable people to collect complete detailed information about these laws, to consider them in the provinces, in special temporary committees, to soften everything wild and cruel, to cancel what is inconsistent with other regulations and, placing them in the proper order, to provide the local main administration on assertion" [4, 111].
The need for a body of Kazakh customary law increased as the norms and principles of direct administrative control were developed. The Regulations "On the Separate Administration of the Siberian Kirghiz" of 1838 instructed the main department of Western Siberia to collect "for approval all Kyrgyz laws and customs, which subsequently should serve as a guide to the Border Department in the production and settlement of claims between the Kirghiz cases" [4, 114 ]. The regulations on the administration of the Orenburg Kirghiz of June 14, 1844 again returned to this issue and made it incumbent on the Orenburg Border Commission to collect and put in order "Kazakh customs that have the force of laws in the Horde ... in order to make of them a kind of special code for guidance in the production and decision of those cases that should be dealt with and judged on the basis of these folk customs" [5].
This work was carried out by Kazakhs who were educated in the Orenburg Neplyuevsky Cadet Corps. They collected significant material characterizing the customary law of the Kazakhs. During this period,
many scientists and representatives of the Russian administration conducted research aimed at identifying customary legal norms, clarified their texts, compared options, carried out systematization, and fixed them in writing.
During the 19th century work on collecting and systematizing materials of Kazakh customary law continued intensively. For this, large appropriations were specially allocated, various officials of the border commissions were sent to the Kazakh steppe, who kept records of the norms of Kazakh customary law; special temporary committees were created to revise the draft code of Kazakh customary law; various meetings of representatives of the Kazakh nobility were convened, etc. One of the practical measures contributing to the solution of this problem was the congress convened in the city of Pishpek, Semirechensk region. Its participants were supposed to establish legal norms governing the relationship of nomads. In this congress, in addition to the ranks of the Senate Audit, the prosecutor of the Vernensky district court, the county chiefs of Verny and Pishpek, representatives of the local population (12 Kazakhs), who are most knowledgeable in matters of customary law took part); From the judgments expressed at the meetings, it followed that the pure adat of the ancestors was not preserved [6].
A large amount of factual material on the customary law of the Kazakhs was collected as a result of the purposeful activity of a number of government commissions, local administrations and their officials, researchers. Part of the collected material was once published in the form of collections of customary law, a number of studies that, despite their shortcomings, are valuable material in studying the history of law and the state of Kazakhstan. But most of these works reflect social relations in Kazakhstan, already changed under the influence of Kazakhstan's accession to Russia.
The norms of customary law of the beginning of the XIX century are displayed in the literature relatively fully in the "Collection of Kyrgyz Laws" published by D. Samokvasov, which is the result of the work of the Provisional Committee, established by the Governor-General of Western Siberia in Omsk in 1823 in pursuance of provision No. 68 of the "Charter on the Administration of Foreigners". This committee began its work in February 1824. Materials were collected by Russian officials from the words of biys, Kazakh foremen, mullahs and presented to the Siberian Committee, confirmed by signatures and tamgas with the comments of the commission. Russian officials, Kazakh biys, foremen and mullahs took part in the meeting of the commission. At the beginning of 1838, the collected materials were transferred to the II Department of the Imperial Chancellery. This ended the official work with these materials, since in the future there were no authentic collections with translation into Russian in the affairs of the office. These materials were published privately, first in 1836 by T.I. Bronevsky, and then in 1876 by Professor D.Ya.Samokvasov of the University of Warsaw from a copy that Senator Gube, who was attached to the chief of the II department, ordered to make for himself back in the 40s of the XIX century.
Many volumes of records of norms, various references and reports characterizing the customary legal rules of the Kazakhs have been deposited in the archives of the Republic of Kazakhstan, the Russian Federation and the Republic of Uzbekistan. This material, regardless of the political goals of its accumulation, is of great value for cognitive and scientific reality. The customary legal norms of the Kazakhs, many of which are rooted in a deep historical past, passed down from generation to generation orally, were first captured on paper in a more or less systematized form by the efforts of their collectors.
It is known that none of these collections and materials received legislative approval, remaining only reference material for the Russian administration. T.M. Kulteleev believes that one of the most important reasons for not approving these collections was that most of the norms of Kazakh customary law were completely opposite to the views held in Russian legislation [10]. At the same time, collections of Kazakh customary law are the beginning of Russia's codification work on Kazakh customary law. Recording customs is a very old method, which was often used when a new government came. Essentially, this meant state sanctioning by the metropolis of customary law. From that moment on, it functions as state legal norms, which are provided by the apparatus of power of the Russian Empire.
Facts from real life showed that the initial attempts of the tsarist administration to replace customary law with general imperial legislation were unsuccessful, since the introduced changes least of all affected the socio-economic foundations of society. It is true that they did not remain absolutely unchanged, but there were no fundamental, qualitative, revolutionary changes in this area during that period. This is the reason why the customary law of the Kazakhs, taken as a system, turned out to be stable in changing conditions. The Russian government itself could not do without the use of customary law, as part of the legal superstructure, in order to pursue a colonial policy. Therefore, the norms of customary law, with the permission of the authorities, were officially applied. However, they were not approved in the form of a written sample of adat laws. They continued to officially exist in an unsystematized, oral form. The goal of a more complete study of adat with their subsequent approval and issuance of permission to apply each norm separately was not realized. This significantly reduced the ability to fully control the rules of customary law, tangible impact on the process of their change and renewal. Therefore, adat laws did not always succumb to the influence of the Russian authorities. The use of customary law in many cases remained without control by the administration. For example, adat norms, prohibited by law, continued to exist, competing with Russian laws and weakening them. Based on this, the government changed its views on customary law. The Russian government began to pursue a special policy aimed at changing part of the customary law system of the Kazakhs and replacing it with the norms and legal institutions of the Russian state, as well as at adapting and using its other part in its own interests. In some areas of the legal life of society, there was
a shift in the norms of Russian legislation and customary law. This, in particular, applies to criminal law relations and the rules governing the activities of judicial and investigative bodies. In the second half of the XIX century. and later, in the same case involving the use of criminal punishment, the investigation was often conducted in parallel according to two laws: Russian officials qualified the crime on the basis of Russian laws, and local volost rulers - in their own way, on the basis of norms customary law.
The tsarist administration, by introducing new principles, diametrically opposed to the original views of the Kazakhs on crime and punishment, tried to impose a completely alien and unfamiliar system of punishments. The legislative policy of the Russian government, aimed at weakening the value of property punishments in the Kazakh society, caused a response and often a negative reaction of the common people, expressed in the patronage of the criminals who committed the murder, giving false testimony, oath, general refusal of the Kazakhs to extradite the fugitive from penal servitude or exile and a relative who returned to his homeland, etc. On the other hand, the Kazakhs avoided the Russian court as inconsistent with their lives. It was noted that "General imperial laws and the formal court based on them", with its clerical secret, "turned out to be inaccessible to the Horde population." in one of the official documents of the 80s of the XIX century.The Kazakhs "understood the impotence of the formal court" with its slowness and clerical and bureaucratic apparatus" and "since the establishment of one court, it has rarely happened that any of the Kazakhs sued in it" [8]. If the crime was revealed to the Russian authorities, then they "overruled, or rather predetermined the matter by their court" [9], notes L. Slovokhotov. Suppose a murder was committed in the village between relatives, and rumors about it reached our steppe authorities, writes A. Krakhalev [10], arriving at the scene of the crime, the investigator (assessor of the district order) if he saw the accusers and the accused, then not a single witness, or the matter before him has already been settled between relatives. And the investigator did not find anything, except for a gift prepared for him, sometimes quite significant. Even in the event that a Kazakh who had committed a crime was sent into exile by the verdict of a Russian court, then a kun(payment for death) was assigned for him among the Kazakhs as for the murdered one, and the responsibility in this kun falls on the Kazakhs who were accusers to the Russian authorities, points out N. Balkhashin [11]. In general, Russian officials who come to the Kazakh steppe for inquiries rarely get the truth. At the same time, the investigation, like all office work, was conducted ineptly and unsatisfactorily. The journal of the Omsk Regional Council dated February 22, 1828, No. 2 shows that the cases were carried out "without any information or considerations."
Sanctioning the traditional institutions of responsibility as punishment measures used by the courts of the biys, the tsarist government tried to adapt them to the implementation of its colonial policy. In this regard, it significantly expands the competence of the emergency congresses of biys and, contrary to the existing
general imperial legal provisions, transferred to them the decision on cases of murder, injuries and cattle rustling. The time, place of convocation, the procedure for holding congresses, the compilation of the erezhe(rule) passed under the direct control and organizing power of the officials of the Russian administration, district chiefs and governors, and therefore Russian legislation seriously influenced the content of the erezhe(rule). To achieve its goals, the government needed an alliance with the aristocratic elite of the Kazakh society, relying on which it would successfully pursue its colonial policy. That is why it takes into account the desire of the Kazakh nobility to preserve the kun(payment for death) and ayip(fine), taking into account some benefit for themselves. On the other hand, kun and ayip were one of the sources of inter-clan enmity. The government sometimes took measures to weaken it, although it never sought to do away with it completely. In appropriate cases, the authorities did not hesitate to use the norms of customary law of nomads against themselves.
The transformations in the legal sphere carried out by the Russian authorities during the reforms of the 19th century, and the codification movements accompanying them, were aimed primarily at maximizing the impact on all spheres of public life, creating favorable conditions for the operation of imperial legislation and adapting Kazakh customary law to it. Thus, codification works were an integral element of the policy of the Russian government in Kazakhstan and are associated with the establishment of a new social order, the establishment of a new logic and new forms of subordination. The far-reaching plans of the Russian government did not come true, but only had a transformative effect on the legal system of the Kazakhs. It is impossible not to recognize the positive value of the preliminary study and incorporation of elements of customary law and the purpose of the subsequent use of some of them in the process of codification work. But the recording of customs and codification was dictated by one desire, namely, to reduce the influence of traditional customary law. More than a hundred years have passed, and the result has not been achieved despite the fact that in the 40s of the 60s and in the 80s of the XIX century. The Russian government established more than one authoritative commission to study the customary law of the Kazakhs in order to determine possible directions and changes. In general, the study of Kazakh customary law at this stage was superficial. These commissions were not tasked with identifying objective trends in the development of the legal system of the Kazakh society,
while codification, no matter how it was carried out, should first of all meet the requirements of the life of Kazakh society, required careful consideration of changes in social relations that usually give rise to and support -legal norms. Otherwise, any attempt to codify the elements of customary law is essentially doomed to failure.
References
1. Rulan N. Legal Anthropology. - M., 1999. - S.
185.
2. Palen K.K. Legal life of the native population. -St. Petersburg, - 1910. - S. 84.
3. TsGARK. F.25. Op.1. D.454. L.77.
4. Materials on the history of the political system of Kazakhstan (since the accession of Kazakhstan to Russia until the Great October Socialist Revolution) / Comp. M.G.Masevich. - Alma-Ata, 1960.
5. The code of customs, brought into the system by T.A. Seidalin, was published in 1871 in the second issue of the "Records" of the Orenburg department of the Imperial Russian Geographical Society" in the article "Folk customs, having", and partly still having in "Small Kirghiz Horde "force of law". The main text of the notes is given in the books "by A.I. Dobrosmyslov. (See: Dobrosmyslov A.I. Court of the Kirghiz of the Turgai region in the XIII-X1X centuries) - Kazan,
1904. - S. 32-76.
6. According to Z.Zh. Kenzhaliyev and S.O. Dau-letova, as long as the Kazakh masses were ruled by strong ancestors, the possibility of outside influence on the legal consciousness of the Kazakh people was excluded. Adat in all its diversity was preserved successively among the people. - (Kenzhaliev Z.Zh., Dau-letova S.O. Customary law of the Kazakhs in the comforts of Soviet power (1917-1937) - Almaty, 1994. - P. 143.
7. Kulteleev T.M. Criminal customary law of the Kazakhs. - Alma-Ata, 1955. - S. 98.
8. TsGARK. F.64. D. 647. L. 129-130.
9. Slovokhotov P. People's Court of Customary Law of the Kirghiz of the Lesser Horde. - Orenburg,
1905. - S. 125.
10. Krakhlev A. Judgment and investigation among the Kirghiz of Siberia // Legal Bulletin. - 1888. V.28. - S. 40.
11. Balkhashin N.N. About the Kyrgyz in general, about Muslims subject to Russia. - St. Petersburg, 1887 (microfilm).
