Law /1. History of State and Law

Master of Law Nurtay M.N., student Toktasyn S.

Taraz State University, Kazakhstan

Historical sources on the customery law of Eurasian nomads

For one of the first legislative monuments of Eurasian nomadic peoples include Chingis Khan's Yasa. The nature and content of Yasa received a different interpretation in Arabic, Persian and Armenian sources that in time to be reflected in a number of studies. Great Yasa was a collection of customary law, supplemented by decrees both of Genghis Khan and his successors. Along with Yasa retain their values local codes. Priority of «Great Yasa» over all local codes did her empire - wide legal instrument. Yasa was called «great» because it was a universal law for all Mongolians. The lack of written laws Yas original predetermined as a source of some information presented in the works of Arabic, Persian, Armenian authors. The question of the degree of reliability of these sources is debatable.

The absence of written texts of legislative activity of the Kazakh khans Kasym Khan, Yesim Khan, Khan led Tauke attraction as a source of historical evidence of Russian officials and officers. But the use of these records as the source for the study of customary law of the Kazakhs should pay attention to the degree of reliability due to factors such as subjective and objective nature. Therefore, in the analysis of a provision of customary law of the Kazakhs need to use all of these studies in a complex, identifying the most reliable information.

As a result of a number of expeditions to the local border authorities, officials had collected a wealth of factual material on the customary law of the Kazakhs. This material is of great cognitive and scientific value, also it allows us to trace the evolution of a particular customary law. The study and research all available sources will reveal the general laws inherent in nomadic civilization on the regulation of legal relations and to identify characteristics peculiar to the Kazakh customary law. These features include the following: the adversarial nature of the institute «Biy’s court», a kind of system of penalties «ayyp», «kun», which provided for a differentiated approach to the definition of penalty, saving the system «barymta», which gave the opportunity to the respondent to give effect to a decision Biy’s court.

The Mongolian Law passed certain evolution in its development. As the main type of farming remained migratory habits mode of production, traditionally in all legislative monuments Mongolian traced the general line, but at the same time there are new rules, indicating a certain transformation of the customary law of the Mongolian people, caused by the influence of both internal and external factors. The historic community of Kazakh law and Yasa - the result of preserving migratory habits mode of production and the formation of a special stratum of the Kazakh nobility in the face of Genghis Khan. Right Kazakhs and Mongolian peoples bore precedent. As a precedent could be right in the Kazakh most successful solutions biys and right in the Mongolian court Zargo.

Typological features inherent in the law of the Kazakh and Mongolian peoples, were a compromise, conciliation customary law, which resulted in a certain scale of fines. These penalties as the refund should promote rapid resolution of cases. In contrast to the customary law of the Kazakh, Mongolian legislative monuments were more elaborate issues relating to the category of state crime. Also on the further evolution of the Mongolian, Kalmyk rights influenced the religion of Buddhism. So in the later laws of reduced use of the death penalty.

Although criminal law has not yet been identified as a separate branch of law, the legal system of the Kazakh and Kalmyk nomadic society knew the separation of heavy and light crimes, relapse, the degree of participation, the objective side of the offense. So at the heart of the property punishment lay a fine, subject to the offense applies only individual, freely dispose of their property. With the dominance of private and family property to the subjects of the crime attributed virtually all members of the family and clan. The penalty for the payment was distributed among all members of the genus.

A compromise, conciliation customary law of the nomadic peoples of Eurasia are: composition of the system, providing a kind of scale of penalties for offenses against the person, property offenses; the principle of collective ownership, which is expressed in the so - called «permitted the theft». The basis of the proceedings of the Kazakh rights lay «institute conciliation or mediation» as a mediator is the main biy.

The identity of the economic-cultural type has caused a number of similar categories of rights relating to the legal institutions of family and marriage, inheritance law, institute authorities, the principle of collective responsibility, penalties, judicial system and judicial system.

The differences were caused by factors external influence, geographical location and the influence of religion.

Thus, it can be concluded that the right of the Mongols and Kazakhs constituted not recorded the customs and traditions of clans and tribes, state - sanctioned, and by the «top» laws, is tailored to the ancient customary law significantly changed and supplemented in accordance with the new historical conditions and in the interests of those who took these laws. In accordance with modern concepts of legal anthropology, in such a case should not speak about the common law, and the right positive, although largely based on ancient traditions.

Literature

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6. Феномен кочевничества в истории Евразии. Номадизм и развитие государства // Сб. материалов Международной научной конференции. - Алматы: Дайк-Пресс, 2007.

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