Akhatov U.A.

Professor of Al-Farabi Kazakh National University

Sabetbek S.

1^st course master student

Compulsory law institutions in traditional Kazakh law:

its nature, genesis and development

Legal system of traditional Kazakh society developed over the years in accordance with its characteristic features. System of Kazakh customs occasionally was against the norms of terms and notions accepted in nowadays law theory. In other words, the system of Kazakh customs was constituted on wide range of relations and elements, with regards to its volume and sphere of usage. It is necessary to take into consideration the above mentioned aspect in conducting a research in norms and institutions of the system of Kazakh customs. In traditional Kazakh law system contract relations covered full extent of various important issues; this is why it was a large-scale phenomenon. Contract relations were differentiated according to its formation and further development. The most striking distinction of contract relations established inthe traditional Kazakh law system is its controversies with nowadays terms and conditions of civil rights. Contemporary contract relations as the contract of purchase, the contract of sale, the contract of exchange, the contract of rent etc., started to grow rapidly in Kazakh domains with the emergence of Russian Empire.

In the modern society civil rights’ contract relations in many occasions are directed towards issues connected with civil matters. Although when it comes to the system of Kazakh customs it is slightly different. Now we should come to more detailed explanations of the sources of contract relations’ formation in Kazakh people’s history and conception of law.

The process of integration between tribes and tribal associations in West Siberian and Central Asian parts of Eurasia in XI-XII centuries ended up with the formation of Kazakh nation, which consequently lead to the construction of Kazakh Khanate. Lately in those vast expanses based on spirituality and proprietiesthe civilization of Turk ethnos was founded, and Kazakh system of laws based on its customs and traditions was easily distinguished amongst the others. In its long history Kazakh system of laws based on its customs and traditions was affected by many factors, yet the most affective factor were still the spirituality and proprieties. Nomadic style of Kazakh society played a crucial role in exploring the new territories. But this mode of life required from its followers to be extremely enduring and track the spiritual and moral codex, the root of political, social and economic basics of Kazakh society. The nomadic style of life based on above mentioned factors made it possible for its every citizen to possess particular traits of character, namely justice, hospitality, love for freedom and showing respect for the elders and willingness to help the others. All those aspects were reflected in Kazakh nation’s law system of customs and traditions, which in its turns stood aside from any other law systems. Legal system of customs and traditions was constantly updated according to standards of living, at the same time it included in itself the whole nations’ beliefs and attitudes towards the human rightsand was preserved along many centuries owing to absolute abiding of Kazakh people to their system of law. The legal system of customs and traditions was developed not only in a traditional manner, butit followed the urgent changes of its time as well. Zimanov.S.Z. wrote the following about it: “the everlastingness of Kazakh law system can be easily explained by its set of rules on spiritual ideals, that were crucial in forming truly independent people, who managed to save their believes over the years in its initial form, regardless of many revolutions and changes that did happen in the vast territories of Kazakhstan. It is the main reason why Kazakh law system was free of usurpation regime”. [1, p38]

The legal system of Kazakh customs and traditions was always playing a role of regulator in Kazakh society during a long period and it still sustains all the changes. After having mentioned the above opinions, we can name as possible reasons of its everlastingness the following factors:

- By using for a long time the tribal and commune civilizations’ legal system of customs and traditions, who idealized excessively the moral codex based on spirituality and proprieties.

- By spiritual nature of human beings and their aspiration to independence and justice.

- By characteristic features of nomadic mode of life, this was very close to its nation and helped in formation of household and earthbound viewpoints.

XIX century’s great philosopher Abai Kunanbayuly in his famous work said, that the norms based on propriety and dignity exist in the form of customs and traditions, so carefully preserved by the nation, that is why they do not lose their practical and guiding value even after centuries. Abai stated that the publicity and openness of humanistic ideas of the legal system of Kazakh customs and traditions, which regulated the whole society, can be explained by its high level of spirituality. In the given condition of imperial and feudalistic relations in Kazakh territory, Abai highly estimated the spiritual depth of nomadic Turk civilization, but above all he appreciated the legal system of Kazakh customs and traditions. Abai stated that personal independence is very important, that without democratic independence there couldn’t be any economic independence. [2, p 160]

“The bright path of Kasymknan” was written in the XVI century and it was not conserved in its full length till the present time. Still the preserved excerptsof this historical document were quite enough for last hundred years’ Kazakh enlighteners and Russian researchers to restore it in a particular level. These documents made it possible to define the content and collect the information about the regulation of contractual structure within the Kazakh society. ErkinAbilKasym khan’s bright path was divided into five parts and it was codified according to legal traditions usage similarities. One of them was the part devoted to the explanation of the different types of contracts as the contract of purchase,contract of exchange, contract of loan andcontract of gift. This part also explained the norms and conditions under which those contracts could be made and set into force. The peculiarity of these compulsory contracts was that since it was created in a patriarchal social community, the internal relations of the community or cross communal relations were regulated with the help of these contracts. [3, p 100]

Tauke khan’s collection of the legal system of customs and traditions named “Seven charters” can be used as an example of late XVII century and early XVIII century’s the legal system of customs and traditions’ codification. It is one of the main official collections of the past hundred years’ legal system of customs and traditions.

N. Userov wrote that Tauke khan was trying to rejoin three zhuzes (“Hundreds” county division) and enforce the state foundation within the Kazakh society, this maybe the reason why there is no any norms regulating the contracts of exchange in this collection. In this collection Tauke khan did not just codified the legal system of customs and traditions in the early stage of Kazakh society’s development; he also showed that he had his own vision towards the new conditions of nomadic society. [4, p 17]

In his works S.Ozbekuly wrote that Tauke khan was a prominent statesman of Kazakh nation. Having clearly understood that under the pressure of Dzhungars’ Kalmyk the historical importance of the reunion of Kazakh society could not be overestimated, he strived to write a unique collection. His aim was to collect in one official document all the legal system of customs and traditions. Surely a particular attention was paid to legal norms connected with crime. “Seven charters” consisted of seven parts. It was regulating the rights of widows and orphans, as well as the responsibilities of their relatives and the society as a whole towards them and their property contracts. The researchers after having analyzed this ancient monument came to conclusion that it was comprised of three parts: 1) ancient Kazakh customs and traditions (“The bright path of Kasymknan”), 2) Esym khan’s set of rules, 3) set of rules prescribed during the tenure of Tauke khan. S.Ozbekuly wrote that “every chapter of “Seven charters” is a reflection of Kazakh people’s practical social life and it was established to protect the nation as well as to regulate the contractual relations within the society”. [5, p 17-30]

Further contracts were used in a family relations circle, thus they were connected with bride-money and matchmaking. In the collection of legal system of Kyrgyz customs and traditions printed in district Zhetysu’s publishing house it is written that: “wedlock is a contract made for a woman to live under marriage condition” [6, p 393]. The main subject of the wedlock was a marriage arranged by bride-money and the main conditions of the contract were connected with the amount of bride-money, expenses for the weddingbed and for the wedding ceremony.

Since the getting married was grounded on respective contract in the 1896’s Oskemen people’s court and SemeyCounty’sCommandment it is written the following: “In Kyrgyz tradition the in-laws must exchange each other gifts named kiyt, the price of it depends on the fortune of the future spouses’ parents as well as on the amount of the bride-money”. It attests that when being united in wedlock the compulsory conditions were included in that procedure. [6, p 208]

The 1884’s Commandment defined the conditions under which the marriage can be arranged. According to it “wedlock can be regarded as united as soon as the in-laws ate together a special meal named kuyrykbauyr” [6, p 78]. In addition exactly, this commandment altered the norms of customs and traditions significantly. First of all, it demolished the notion of levirate marriage. Since then widow was no longer obliged to marry her deceased husband's brother or other relatives. Instead she had the rights to make her own decision.

Before Kazakhstan joined to Russia the contracts within the society were focused on needs of community members and had predominantly earthbound character, consequently they had fewer categories. However after confluence with Russia the area of exchanging goods widened considerably, the new sources for legal relations revealed, thus the new types of legal contracts were established. In order to regulate the relations aimed at purchasing and exchanging products the new type of contract, namely the contract of purchase was generated. If at the beginning they were necessary to satisfy the earthbound needs of community members, now they possessed more commercial features. The subject of the contract was cattle. “In the collection of legal system of Kyrgyz customs and traditions” inscribed in the XIX century it is written that customs and traditions regulated the contracts of purchase, thus it was its main object. In this document not only the object of contract, but also the subject, the price, the rights and commitments of the partiesand sanctions for breach of the contract were enlisted. For example, the seller must inform the purchaser about the defects of the product or otherwise he or she must allow the purchaser to examine the product carefully before buying it. The seller must also explain the purchaser the sum of the product. The purchaser has rights to breach the contract, if the seller does not follow the above mentioned conditions of the contract. [6, p 414]

It is obvious that in the law system of Kazakh customs and traditions the contracts of loan, rent and safe custody were also in the charge. S.Z. Zimanov wrote about it that: “the contracts of loan’s development were closely connected with the wide spreading of the investments”. Ordinary people were lent some money from rich people in Kazakh society making an obligation to pay the effective interest rate. The annual effective interest rate was usually more than the amount of loan. Merchants usually lent some bread for unprivileged people. They in their turn helped the merchants with the household issues during a particular period as a payment for debt. These kinds of relations were very useful for the lender especially in the period of agricultural works. [7, p 54]

Kulteleev T.M. also attests the existence of the contract of loan. He wrote that in the collection of legal system of customs and traditions published in the second half of XIX centuryone can see the norms developed from the commodity-money relations. The new types of the contracts were appearing. Especially in the second half of that century the contracts of loan were very common in Kazakhstan. [8, p 301]

The compulsory contracts based on rights and commitments were the foundation for conditions. Most of the contracts were concluded in an oral form. Only with the growth of economy and wide spreading of exchange of goods, the contracts started to be concluded in a written form. There is no doubt that contracts were grounded on spiritual and moral codex. Since the contracts were concluded in an oral form, it was necessary that witnesses were included into the process. [9, p 280]

To the outcomes of the traditional Kazakh society, we can include the following types of contracts:

1. Contract of amanat (safe custody)

2. Contract of sauyn

3. Contract of heritage

4. Contract of kinship

5. Contract of at-maiy

6. Contract of inheritance

7. Profit

8. Suyinshi (a gift given for someone who has brought good news)

Type of contracts in Kazakh society appeared after the Russian occupation:

1. Purchase

2. Guarantee

3. Exchange

4. Contract of loan

5. Contract of safe custody

In this research work we find it reasonable to provide our own classification of the contract relations in a traditional Kazakh society, while doing it we took into consideration the foundation and development of Kazakh society:

Firstly, the contracts caused by family relations (bride-money, kuirykbauyr)

Secondly, the contracts caused by kin relations (kinship, asar,zhurt)

Thirdly, the contracts caused by compulsory relations (sayun, amanat, at-maiy)

Fourthly, the contracts caused by inheritance (heritage, inheritance)

Fifthly, the contracts caused by civil relations (purchase, exchange, loan)

In conclusion, we can classify the contracts used in traditional Kazakh society according to many reasons. In classification of those contracts the stages of society’s development must be taken into consideration.

List of used literature:

1 Зиманов С.З. Древний мир права казахов и его истоки / Древний мир права казахов атты кітабында. Алматы. - 2001 ж. - 324 б.

2 Абай. Нақыл сөздер.- Алмата-Ата, 1983.-160 б.

3 Әбіл Е. История Государства и права Республики Казахстан. – Астана 2000ж. – 100 бет.

4 Усеров Н.У. Исследование правового памятника Жеті Жарғы: з.ғ.к.-на аавторефератынан. - Алма-Ата: АН КазССР, 1977.- 24 бет.

5 Өзбек ұлы С. Хан Тауке и правовой памятник Жеті жарғы. – Алматы, 19987-88 бет.

6 Материалы по казахскому обычному праву / Сост.: Т.М. Культелеев, М.Г. Масевич, Г.Б. Шакаев. – Алматы: Жалын, 1998. – 464 с.

7 Зиманов С.З. Политический строй Казахстана конца XVІІІ и первой половины XІX веков. – Алма-Ата 1960. – 296 б.

8 Культелеев Т.М. Уголовное обычное право казахов. Алматы -1995 г. – 301 б.

9 Материалы по истории государства и права Казахстана. – Алматы, 1994. – 280 с.