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15THE SPIRITUAL FOUNDATIONS OF THE LEGAL CULTURE OF KAZAKHS
Khassanaeva L.
Kazakh National University named after al - Farabi, Candidate of Historical Sciences, Associate Professor
Khamitova M.
Al-Farabi Kazakh National University, Second year Master Student of the Faculty of History, Archeology and Ethnology
Abstract
This article shows the correspondence of the stages of the formation of the state and the law which is formed in this country. The historical development, organization, economy, geographical location and ethnic norms of ethnic groups and general norms of the Kazakh people, as well as spiritual principles of the Kazakh legal culture are described and discussed.
Keywords: society, history, law, rules, custom, legal culture
In the modern historical period, our country is on the way of building a democratic, secular and legal state, based on the system of values accumulated for thousands of years by our ancestors.
Within the framework of the development of democratic process in modern Kazakhstan, the main institutions of the legal system are being formed. As a rule, the general social significance of the law is an obligatory set of rules governing the comprehensive development of public relations provided by the state.
In the current market situation, civil and criminal cases in our Republic require a high level of consideration of moral principles, humanity, professionalism, justice and honesty.
The constitution of each country is the basis of democratic development.
If we look at the roots of our Law in our legal system, then their source begins with "The Old Road of Yesim Khan", "Legends of Kasym Khan", "Zhety zhargy by Tauke-khan", "The Right of the Steppe".
Nature itself made the cognitive feeling and thought of the nomadic people different. The environment had a great influence on the growth of thought and the feelings of the steppes and forced them think that human and nature, society, man and the relationships between them, human life and essence, human dignity and life are not eternal, but that man is a man only with people. The belief that the Creator of the world exists and this is Tengri formed from this. Such a faith gave a great spirit to the nomads before the appearance of the Buddhist, Zoroastrian, Jewish, Islamic religions.
After the person was born, he must have human values - conscience, honor and dignity. And since their loss deprives humanity, they have placed the honor in the first place. Of course, the power that supports dignity is justice, humanity and morality. In order to maintain these categories, strict rules and regulations were required. Thus, legal consciousness was formed.
Traditional Kazakh culture was reflected in legal freedom. In particular, it is reflected in respect for the person and the lack of worship to the authorities, non-observance of strict requirements, honesty, morality, relative freedom and equality of women, freedom-loving everyday traditions, developed colloquial folk art, and the entire spiritual culture of the Kazakhs.
Traditionally, traditional law is a set of social norms that have centuries of experience outside of power, and legal civil norms are norms established by
the state, its competent bodies and standards of conduct. Is it possible to say that in this case the legal service in the classical Kazakh society has reached a positive level?
In the systemic collection of laws that functioned during the times of the Kazakh Khanate, the notion of "crime" was not given. Those who committed crimes were called "demon", "damned", "villains" and "damned by god". According to these collections, the following types of serious crimes are listed: murder, theft, robbery, rebellion, riot, damage to human organs, rebellion against someone's family, racial discrimination, rape, beating of parents etc. The subject of the crime are people who are sane and capable and who have reached the age of 15. Slaves, abnormal people and dumb people do not refer to a crime subject. The biys court is guided by the following principles in committing grave crimes: "blood for blood, soul for soul," "ear for ear, hoof for hoof. "Crime and punishment can not be considered separately, because they are closely related phenomena; they were divided in the law according to the seriousness and ease of punishment. In the traditional law, the biys judgment is clearly reflected in connection with the declaration of their authority.
The court of biys consisted of three stages:
At the lower stage - the personal power of rural elders (aksakals);
At the second stage - zhuginis, that is, to such power participated biy, or elders to eight people;
At the third stage - "Council of biys", there participated from 6 to 24 biys [3].
"The Biys Council" was held to resolve conflicts between the tribes. The biys court was conducted openly and the residents were also participants of the trial and the decision of the biys along with two opposite parties in court. In the court of biys, Kazakh biys could act as a plaintiff or prosecutor on behalf of their tribe. Preliminary investigations on criminal cases were organized according to their own decisions. The decisions of the authorities corresponded to the consent of the majority and therefore were considered a guarantee of the enforcement of the sentence.
The advantage of the norms of Kazakh customs is clearly reflected in the softness of punishments. Perhaps that is why in the Kazakh steppes there were no such punishments as prison or imprisonment. However, under the influence of biys, instead of the "blood for
blood" rule which existed during the reign of Tauke-khan, the institution of payment of kun (property compensation) was widely used. The payment of the kun implies moral or material compensation in a certain amount for the killing of a person or causing him harm to his body.
According to the laws of "Zhety zhargy" for the rape of women and girls the criminal is sentenced to death. If the husband of a raped woman supports an offender and her parents forgive him, the criminal will be released from punishment by paying kun (property compensation) to the woman. If this is the case with a virgin, the man should marry only this girl and pay "Kalyn mal" (ransom in the form of livestock) for her father and mother.
For marriage violation people were severely punished by a sentence of judges. For example, if a man takes out another's wife by force, the offender will be sentenced to death. If the husband is merciful, he can avoid the death penalty. If, on the contrary, the woman voluntarily escaped from her husband, she remained in the hands of the person she escaped to. But for a such act her new husband must give the first husband "kalyn mal" and also give him a young woman without asking "kalyn mal". The man had the right to kill his wife for treason.
Marriages between clans up to seven generations were also the cause of the death penalty. This is a particularly necessary condition for the continuation of healthy generations: Kazakhs have been wooing with other zhuzes or tribes above seven generations. Having given the girl in marriage to distant lands, taking wives from far, the people not only enriched the traditions, but also strengthened the unity of the relations between the svias, nephews and relatives from the maternal line. All the conditions have been created for the bridegroom to fully get used to another family. There was a law of "amengerstvo" according to which if a husband suddenly dies, a widow would marry her husband's brother or one of his close relatives. This creates a favorable psychological condition for widows and orphans to live among the relatives of the husband. All this shows that the institution of the family is a priceless value for the Kazakhs. The socialization of man began from the family, and was strictly observed by society and the tribal community. The meaning of the word "Homeland begins with the family" is very deep
Since the people are engaged in nomadic livestock, there are various disagreements related to the pasture of cattle. Criminal action against cattle is called Barymta. This controversial issue also was fairly resolved by the judges. During the barymta, the kun (material compensation) was paid to the victims, and the culprit had to give the horse to atone for his guilt.
If we consider the activity of Kazakh biys in the field of the protection of justice, in the book of S.Sozak-baev "Tauke-khan. Zhety Zhargy " it is informed that in the Kazakh society the case is divided into two stages. Firstly, the two conflicting parties act to settle the dispute before the case is considered. Traditionally it was called "Bitim", "Bereke", "Salauat".
"Bereke" is making an oral contract for the exchange or purchase, satisfying their own interests. In general, in Kazakh traditional law, "Bereke" was the basis of all contracts.
"Bitim" is the end of the dispute by mutual agreement of the parties. After Bitim, the biys are not given the right to consider the case. Because, unilateral violation of the agreement shows inability to restrain the word, vow, and generally shows the lack of conscience.
"Salauat" is the reconciliation of the two sides, the refusal to present claims to each other. Another institution created during Tauke Khan's reign was called "Zhuginis" which meant the consideration by the collegial composition of biys of disputes and conflicts between the tribes."Zhuginis" is one of the symbols of public democracy. According to its rules, with the consent of the two sides, "Arabi" with a high intellect, which has not any connection to the dispute and distinguished by his fairness is elected. It reports all the details of the matter to the collegiate composition of the biys and calls on the two sides to come to the bitim. In the case of absence of "Bitim" biy considering all the evidence make their own verdict.
In the Institute of traditional law and biys, the principles of fair social management of the regulation of the life of traditional Kazakh society in the moral and legal integral system were implemented.
Such concepts as the court of the biys, the judiciary are still officially used in the judicial system of our country to emphasize justice and professionalism. The judicial board, which was represented with the idea of securing the highest level of justice in the most serious criminal cases of the country, was called the "Council of Biys." This, in turn, gives us an idea that the level of judicial power in the history of the Kazakh judicial system was high and its importance in the way of justice and honesty [5].
In the ordinary Kazakh legislation, universal and common human values of humanism and respect for a man are reflected. The most socio-cultural basis for the regularity of the rules of customary law in the Kazakh steppes was justice. Since Kazakh people appeared on the historical stage, they became famous for their exceptional qualities, having placed their good human qualities in full of humaneness rules. The most important qualities are human dignity, justice, equality, humanity. It would be good if the figures of the legal system of the Republic of Kazakhstan currently take as a basis these goals. Recognition of the historical place of traditional justice of the Kazakh people in the life of the country is an opportunity to serve as a valuable service in the policy of democratization of the modern Kazakh state.
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2. Bichurin N.Ya. Sobranie svedenii o narodah obitavshih v Srednei Azii v drevnie vremena. - Almaty, 1996- T.1.
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5. Materialy po kazahskomu obychnomu pravu. -Almaty, 1996.
