of al-Farabi Kazakh National
university,
Almaty, Republic of
Kazakhstan
Tauke khan introduced considerable changes in the
previous legal codes
Especially
was modified the third part of Jety Jargy. The laws of khan Tauke were based on
traditional practices, but were innovated to meet the time challenges and
digest the traditions of the tribes that within time became part of the Kazakh
khanate. Jety Jargy is the most famous legal code that was in force
until mid XI century in the Kazakh steppe. There is no common opinion on the
time when and under what circumstances it was adopted. Some researchers
consider that it was in late XVII century, others – to early XVIII century. The
reason is that in the first half of XVII century the Kazakh khanate unified all
lands and to strengthen the state, the leaders needed real deeds. At that time
most of eastern part of the state lived under the Sharia law. Social-economic
and political situation degraded, therefore the leaders were to take urgent
measures to consolidate the country through unification of legal practices. One
more reason for Jety Jargy adoption is the external threat – the Jungar
invasions intensified. The Jungars by that time had
adopted their legal code that helped to strengthen the people from within.
Thus, Kazakhs had to take urgent steps to confront the external threat.
Thirdly, until XVII century most of legal practices grew outdated and new
realities were to be reacted properly. We keep to the origin of Jety Jargy as
of late XVII century, and support our proposition by the evidences provided by
the tribal chief of Jappas tribe Kobek Shukualiev, that he gave to the Russian
researcher G. Spassky: “Ancient tribes of Kyrgyzes (as they were called by the
Russian, in fact – Kazakhs) proclaimed Tauke sultan as their khan, at that time
three branches of Kyrgyzes (Great, Middle and Minor juzes) sent their judges
(biis) to negotiate and they came to conclusion that they would stop fighting
and quarreling with each other and adopt a common law”[1].
The rules of Jety Jargy became integral part of the Kazakh
everyday life, and its unwritten articles were transmitted orally from one
generation to another. The fragments of Jety Jargy were complied by the members
of the Russian research expeditions and officials of the colonial
administration. That is their contribution to the preservation of the legal
code of Kazakhs. Jety Jargy and some other legal practices of Kazakhs were also
complied by A.I.Levshin, N.N.Grodekov, D.Samokvasov, L.A.Slovokhotov, G.Spassky, Y.I.Gurland. The most valuable
collection was made by findings of G.Spassky, Y.Gurland, A.Levshin,
P.Makovetsky, L.Balluzek[2].
It is known that there are two original versions of Jety
Jargy. The first one in 1804 was complied by G.Spassky form the words of tribal
chief of Jappas tribe Shukualiev. In 1820 “Herald of Siberia” published notes
of G.Spassky on Jety Jargy consisting of 11 fragments. Spassky also described
the everyday life of Kazakhs from the results of his expedition in 1806. The
second version was given in the works of A.Levshin. Lawyer Nuraly Oserov
critically assessed Jety Jargy, collected all available resources on that legal
code, and divided it into several chapters:
1.
State integrity
2.
Body cleanliness
3.
Religion
4.
Family unity
5.
Crime and punishment
6.
Human rights and private property
7.
Order of governance
Thus, Jety Jargy consists of 7 main parts divided into 34 articles. The analysis of the legal code proves that it served the material and political interests of the people in power and as a mediator between those in power, and the common folk. Since the creation of state, the land disputes (zher dau) were extremely important for all members of the community. By Jety Jargy land issues were considered as part of the tribal property sphere. Therefore, any member of the tribe could have right for the pasturelands, winter and summer sites. In that way the conflicts over lands were prevented or regulated.
The basic economic fundamental of the Kazakh community was
cattlebreeding. Each tribe had its own seal to mark the cattle (tanba), and
that was considered under Jety Jargy in case if any disputes arise. A seal
could identify a stolen attle as someone’s property. The Kazakh community
recognized only property rights on cattle. Tanba (seal) ended all the claims on one’s cattle.
Other
issues under Jety Jargy referred to family and marriage sphere, and originated
from the early times traditions. Father was the head of the family, the owner
of his children, master for his wives, servants, cattle, pasturelands and sites
(winter and summer). No decisions were taken without his permit. The family
related articles also stipulated the marriage strategies- count
7 generations to make marriage policy to form a family: within 7 generations
people were viewed relatives. No permit is given for marriages with foreigners.
Therefore, every Kazakh was obliged to know 7 generations history – genealogy-
zhezhire. The one who could not name 7 ancestors was believed to be without roots.
Russian
researcher N.Grodekov wrote, that every Kazakh knows his genealogy that was
supported by Tauke khan’s legal code that was seen as one of the pillars of
social system and its stability. Peace between relatives was equivalent to juz solidarity and strengthening of the basis of the state, in
understanding of Tauke khan.
The
significance of tribal system is visible I big events taken place in Kazakh
social history. For example, it was observed during marriages and wedding
ceremonies, funeral commemorations, property division, etc. when relative
supported each other. In the soviet
times, as well as presently, do serious events are
arranged without relatives participation and support. Although within times the
traditions changed, part of them is still observed.
Family and
marriage related traditions of Kazakhs are very complex. For example, the
seeking a marriage partner for son, marriage contract negotiations, etc., rites
and rituals of girls marriage and wedding ceremonies arrangement, parties on a
child’s birth (shildekhana), ages transitions cycle ceremonies (12 year cycle-
mushel, zhasqa toly), funeral commemorations, and other events were followed by
traditions coming from early times.
In the
nomadic community, with the advent of Islamic practices, material compensation
for the crime was introduced. In the legal codes of Kassym khan and Yessim
khan, compensation was mentioned, but not interpreted in full manner. While in
the laws of Tauke khan, revenge was interpreted as a big damage for the
community and was replaced by material compensation. Emergence of compensation,
principles of its type and size were caused by subjective reasons. As other
members of the tribe were responsible for someone’s crime, it was better to pay
for the crime, and release them from the fear of being killed. The tribe paid
for the crime certain amount of cattle agreed under Jety Jargy by judges, as it
was reported by Levshin. Information of material compensation practices can be
found in the works of I.Georg and N.Rychkov. By Georg: “if someone killed
another man, he will be sentenced to death for that crime, or released if
compensated for the death to the relatives of the victim. For the murder the
compensation is 100 horses, 2 camels, and 1 slave. Instead of horse he can give
5 sheep. For the murder of a woman, the compensation is twice less than for a
man’s murder. For the physical injury or trauma to the genitals of a man or a
woman, the punishment is very serious. For theft - 9 times more.
The historical
foundations of the Kazakh legal practices are customs, Sharia norms and legal
codes of the some rulers, like khan decrees, but they could not cover the
variety of legal cases happening among the people in steppe. Customary legal
systems of Kazakhs were created within the long historical process, condensed
within the nomadic life style, and were flexible and gradually evolved. The
institute of judges (biis) in Kazakh society as responsible for following and
timely reaction to the changes and challenges, as well for the maintenance of
traditional legal culture and practices. They were practitioners,
theoreticians, and interpreters, presided over the
legal trials, took decisions, negotiated in disputes whatever they were,
criticized and took the final actions. The main objective the court of biis was
to establish the truth, reveal it to the public and take appropriate decision.
They were to posses a common sense, strong logic, orator skills, deep
analytical potential and good memory. They were to take into account positions
of both parties involved in the case, thoroughly investigate the case, critically
asses
the words and actions of all the participants. Biis had certain freedom in
taking decisions, as well as the the one found guilty disagreed with the court
decisions, had right to protests and the case were revised from anew, all cases were considered publicly. The complexity of cases
necessitated the number of biis involved, if the case was too difficult, then
several biis were involved and out of them was elected by his colleagues the
chief one - tore bii. He took the final decision. If the trial was public, then
all present had the right to speak out on the case. Tore bii was to arrange the
due procedure and control the order of the process. Relatives and interested
people from both sides could speak, but had no right to vote. In many cases the tribal biis could suppress
by their tribes’ authority the opposite party, as all tribal members covered
the responsibility for the crime. The trial was held in the specially arranged
place or in the tent of bii.
Thus,
the steppe legal practices were naturally formed within the normal course of
life and developed in content and structurally by people and law might regulate
their vision of how.
References:
1.
Materials on Kazakh customary law. Almaty,
1996, 200 pages.
2. Materials on Kazakh
customary law. Almaty, 1996, 210 pages.