Право/ 1. История государства и права

PhD in Law Shapak U.

Kazakh Humanitarial Law University, Kazakhstan

Family relations in Kalmyk law

The history of the state and the nation is directly linked with the history of the law. The power of the law in any state is determined by the interlinkage between the acting norms and national traditions and customs. Each nation state has specific law. A common law is determined in different ways by ancient historians, ethnologists and lawyers, namely was identified as “live law”, “unofficial law”, “ancient law”, “nation law”, “tribal law”, “pre-law”, “unwritten law”, “folk law”, “traditional law” and etc.

The aim of our analysis will be research of the norms of the family law in common law practice within the context of Mongolian traditions which took place in the Middle ages among Kalmyks. Kalmyks were in close touch with the Kazakhs and traveled in middlerivers of Ural and Volga and were offsprings of the Mongolians. They have also contributed into development of the nomadian culture in the Great step lands.

The common law is a complex institutional entity which strengthens the common type of the social structure. The common features of it are inter-subjectivity, regulation, social importance. It is interdependent with social environment. The common law could be treated as a system of norms, which lead the society and social life to common order and common confession.

Each ethnic group has got its own path of formation, development and inheritance of the law. Research lawyer K. Alimzhan determines comparativeness as the key feature of the common law [1, с.48]. At the same time the founders if corporativeness are subjects incorporated according to several reasons. Certain people are founders and developers of it. That is why the Kalmyk law is similar to the Mongolian law , it has common routes. At the same time we can see that due to environment peculiarities, social, economic development Kalmykhs tend to have a bit different norms of law.

The Mongolian legislative system contains the norms of a common law of the Mongolian nation and legislative acts of the Mongolian Khans, based on the Mongolian Empire concept, legislative practice.

We know that Kalmykhs had their own law. Although it was based on Mongolian traditions, it still had peculiarities.

The term “family” has been determined by two key functions: 1)genesis and continuation of the generation; 2) upbringing, establishing the basis of the society. Interrelationship among family members are also of a great interest.

Lots of laws are dedicated to marriage issues. Such issues have been covered as age of consent, the size of redemption determined by social status and responsibility for divorce. Later administrative divisions start to come into force, such as “aimaks” and “ohotons”. Particular attention is paid to wedding of a son or a daughter.

The analysis of the norms demonstrates that the particular attention is paid to wedding contract and wedding arrangements. The norms have also prohibited a mixture of blood among the different social categories. There was a requirement to marry the people of the same social category.

The issues of divorce and returning a woman back to her family was regulated by customs. The norms of Mongolian – Oirat Law concerning the divorce under husband’s initiative was also bleak. The Law does not contain a clear answer. However, according to Ancient Kalmykh law a woman was returned to their relatives due to her inability to continue the generation.

Additionally, according to one of the norms of the Mongolian-Oirat Law a woman is considered divorced in case if he cheated on her. N case, if a his wife marries another person, a husband had a right to marry the wife of the offender.

The issues of child adoption could be related to family law of Kalmykhs. Adoption of the kinds of relatives with low income and orphans was widely extended, particularly in the families with no kids. According to the norms of law, the return of the children was still possible. For example, if the adopted child has expressed its will to be returned back to its native family, it took places with no charges. The charges limit was not identified and was regulated according to the customs.

The return of females adopted had its own peculiarities. Those who adopted her and her native parents were obliged to arrange a dower an a fiancé was supposed to share its won livestock gifts equally between parents.

Girls who were sent to be upbrought to the other family had a right to come back to the native family in the age of 15.

Types of crimes in the sphere could be subdivided into the following two categories: А) intervention into family relations; В) outrage upon humanity.

Intervention in family relations. It is obvious that the responsibility for this type of crime was aimed at keeping patriarchic traditions of the nomadian being, family indignity and wealthiness. As an example the following types of the crime could b named: actions against the moral rules and marriage order. Their objects was the social relations with regard to marriage and development of the family. Adultery and abduction could be related to this type of crime. There was a compensation to be paid in case of adultery - 5 livestock heads to the husband, 4 to his musketeer. Kazakhs punished it with the death penalty.

There was a separate commitment for adultery. Husband of a kidnapped woman had a right to deprive the offender the property. If the offender had a wife, the victim had a right to take her or present as a property during the wedding arrangements.

Outrage upon humanity. These types of crimes had deep routes among Kalmykhs and are linked with the traditions of hospitality, respect to older people and respect to traditions. Therefore any invasions were treated as criminal. Outrage upon moral principles were invasions against woman’s freedom, her dignity, destruction of the family and etc.

These are key principles of Kalmykh’s family law relations built in compliance with Mongolian traditions and strengthened in Kalmykh common law.

The literature:

1. K. Alimzhan. Common law as a form of law. – Almaty, 2000.