Представлены основные результаты исследования степного права. Суд биев воплотил в себя ценности народной демократии и основывался на понятии справедливости, как ведущем принципе правосудия.
Дала (қыр) құқығын зерттеудің негізгі нәтижелері көрсетілген. Билер соты өз бойына халықтық демократия құндылықтарын жинақтаған және әділеттіліктің басты қағидасы ретіндегі әділдік ұғымына негізделген.
Keywords: biy’s court, nomadic civilization, Kazakh law
In the world and its cultural layers, there is quite a number of phenomena which are considerable on historical measures, and in spite of it, they are remaining undiscovered for a wide viewing of humanity, but hence unidentified and not appreciated at there true value. Most of them have been lost in a succession of generation or remained aside from the high roads of civilization development and cognitive activity of the new times. However, they did not become less important or less valuable in their historical plan.
There were whole social-cultural layers among them, which filled the whole epochs in the history of the people and states, the interest to which and meaning increase more and more as the human relations are becoming humane or rather with return to values of perennial freedom, democracy and thus to natural human rights which now finds itself under technological and estranging conditions. One of those cultural values lost in the layers of history is the Kazakh law.
Nomadic civilization, if it was, with its typical features more clearly and with more maturity came out in Central Asian part of the Earth, which was often called in history as the Great Steppe. Turkics and their ancestors were the basic forming ethnic group that is why in the cultural-ethnic meaning this Steppe was called Turan, Turkestan. The Kazakh law was the cultural island, heritage and product of Turkic speaking nomadic civilization being firmly established on one of its extensive “free” zone, called Kazakhiya.
The world changed and different cataclysms have happened during the centuries in the life of the people and societies, settled on the territory of modem Kazakhstan. In this stream of the history the Kazakhs carried out and preserved for posterity two unfailing values of the earlier epoch - Realm of Word and Realm of Law.
As it is written in the Kazakh National Anthem:
“Jaralgan namystan kaharman khalykpyz,
Azattyk jolynda jalyndap janyppyz.
Tagdyrdyng tezinen, tozaktyng ozinen
Aman sau kalyppyz, aman sau kalyppyz.
“We are valiant people, children of honour,
On the way to freedom donated all that is needed.
From vice of fate’s trial, from infernal fires
We perfectly survived, we perfectly survived.”
Kazakh law which based on cultural and democratic traditions of the common law system outlived and stepped over its epoch which gave birth to it. It continued to keep its regulative valuality till the XIX century, and to some extent the beginning of the XX century. Longevity of the Kazakh law can express by two factors. Firstly, economic, social and philosophical bases on the nomadic civilization on the extensive land of Kazakhiya preserved up till the new time. Secondly and this is the point, the life of the Kazakh law was much nearer to the people, more conveyed the logic of its life and expressed the eternity spiritual essence of a man and his aspiration independently of his perfection and development stage.
The Kazakh law was a cultural treasure of the Kazakh people and all nomadic civilization. It has thousand-year history and a peak of its establishment conditionally belongs to the XIV - XVIII centuries. Paradox of this phenomenon is that the earliest decline of grandeur Kypchak’s Great Steppe - prior native land of the nomadic civilization, which did not cause synchronic decline of prestige and role of the Kazakh law culture. In this contradictory process evidently its life on “free” and “island” zone of the extensive Steppe has influenced.
However the economic and cultural immobility in the medieval Steppe and its isolation and increasing lag from other parts of the world successful in their development played its role.n Extensive Central Asia region was moved aside from it. Only the interests of the Steppe colonization had returned its fame but as the object of enslavement. All of this told on estimation and fortune of the Kazakh law.
In the medieval East, Turkish, Chinese and Mongolian sources, also in the descriptions of some Western and Russian travelers, investigators and local agents of new time we found permanent mention of the “Golden Century”, period of “Order”, which took place in the history of Kazakhstan. Memory of that time has been left yet in the minds of people till latest time. It was not the product of fantasy or an inventor’s fiction but historical reality round which there was permanent struggle between those who wanted to colonize the Kazakh Steppe and who fought for its freedom. In the centre of changing generations of prekazakhs and Kazakhs and their many centuries’ struggle stood out the idea of “true order”, as a repository and protector of which projects an incorruptible judge, wise man and speaker - historically real figure “biy”. A Biy was not a Khan in the Steppe. But for his social individual rating he often stood higher than a powerful ruler.
Among people there always existed an ancient belief: “Khanda kyryk kisining akyly bar, biyde kyryk kisining bilimi men ary bar» - «Khan has the wisdom of forty people, and biy has the knowledge and conscience of forty people».
Acknowledged during his life for outstanding investigations “Heredothe of the Kazakh people” Russian scientist-orientalist A.I Levshin at the beginning of the XIX century wrote: “The most reasonable ones among Kirgyz (Kazakh - S.Z.) of the Junior Orda said that there was a time when our people also lived in peace, when there was order, law and justice”. The author calls this epoch “Golden century”, about which, according to his words, people remember “with sigh”.
Another Russian investigator, who worked for a long time among Kazakh people and acquired knowledge of the Kazakh language, A.E. Alectorov described with enthusiasm the biy’s court which took its beginning from antiquity but survived in splinters even till the XIX century. According to his words those biy-judges who followed the old traditions of justice, personified the samples of an ancient democracy. “Every biy and an old man during court examination - his writes- regard his sacred duty to render litigants the perfect impartial justice. He will listen with patience all the slightest details both complaints and excuses and then declares his decision, which is always implicitly accepted and reverently executed”.
An outstanding Kazakh scientist of the XIX century and brilliant investigator of the East Ch. Valikhanov wrote that the biy’s prestige was based on their private authority, which they acquired like European poets, scientists and lawyers. “Shakespeare and Gethe are regarded as the great poets by everyone, but an opinion of their genius is based not on government’s decree and nor of the formal people’s formal elections “.
Three factors played a paramount role in formation and systematic development of the Kazakh law. Firstly, prekazakhs and Kazakh’ inhabitancy area in European - Asian continent was enormous, which as if formed by virtue of the objective circumstances as the vast zone for consolidation of a part of the nomadic civilization. On size of its territory Kazakh Republic occupies the 9 III place in the world today, 2,72 million square kilometers, but 200-300 years ago it was more than -1,5 -2,0 times. Secondly during the great migration and moving of the nomadic and half-nomadic communities and associations from East to West, which dragged on centuries and ways of which passed through Euro-Asian Steppe or began from it when in the course of changing and disintegration of their political and state systems part of them settled on this “free” zone, named Kazakhiya, bringing to it their natural cultural, common legal democratic traditions. Thirdly, on this extensive island of the Steppe’s area the spirit of enmity and war relatively early had changed to the peace aspiration and expansionist campaigns gave up their place to the ideas of self confirmation and self dependence in ethnic culture borders. Consolidating ideas gradually gained upper hand of bifurcation and disunity of the Steppe what in the aggregate gave risew to a tendency of regulation in social relations and led to the strengthening of the regulative role of legal determination imbued with spirit of liberty, ensuring peace, common prosperity and unity of the subject population.
Almost all state formations great and small state formations mostly Turkic or exposed to Turkic influence alternated over many centuries had left after themselves memory in the form of viable and selected rules and regulations which were together with their bearers selectively reduced and mastered by the Steppe, and as a result the latter was enriched by the “free” ideas and widened its cultural borders. That was basically the general background of the social political, geographical and historical conditions deep in which slowly and more in natural way there was forming law field with its characteristic peculiarities of leaning towards the confirmation of humanistic principles in people’s relations.
Special limits of the Kazakh law were determined within the ethnic-cultural borders of the nomadic population of “Kazakhiya» that is not coinciding with real power claims of any Kazakh khan. Kazakh statehood was conception which has the real basis in mass consciousness. Kazakh society permanently lived under the conditions of the feudal disunity of Khans, Uluses and Juzes struggles for predominance in “Kazakhiya”. Its political consolidations always temporarily and fragile grew strong in years of common danger and urgent necessity in settling the national problems. As for Kazakh law it always remained a common cultural property in the ethnic borders.
In the total field of law of the medieval Kazakh society the determining power was the power of Steppe law and a narrow category of people named Biys were its bearers, reformers realizing power.
A biy, first of all is a judge. The power of biy was regarded as fundamental power going deep into people’s history contrary to Khan’s power, which had non Kazakh origin. It was traditional, prestige and priority power, though it entered into the structure of the Khanate power- the supreme power in Orda. As one of the outstanding Kazakh figures of culture wrote: - “Myqty biyler tilin almaghan khandardy taqtarynan quyrshaqsha alyp tastap ta otyrghan”  - “Authoritative biys from time to time with disobedient khans as with dolls, sending them in a resignation”.
A biy in national consciousness was drawn by the bearer of knightly morality - “Shyndyqtan artyq bizge qudai joq” - “There is no god higher than truth”; “Malym janymnyng sadaghasay, arym malymnyng sadaghasy” - “The material values should serve morality, and in morality honour is the main thing”. These slogans had the real human character: conscience, honour and dignity of a person were announced as the highest values. The force of these high morals was predetermined by, that during the centuries it was ratified as a making part of national mentality of the Kazakhs. With reference to justice, this common morality was poured out in concrete directive which said: “Tura biyde tughan joq, tughandy biyde iman joq” - “A biy has no relatives, if has any relative then he is unfair”.
It was difficult to become a biy since requirements imposed upon him were high. Only “elected by the god” could become a biy. Except for the personal data, by which the strict requirements were placed, the applicant for a rank of a biy was bound to pass a number of tests. The natural and acquired intellect, eloquence, ability to a dialogue, mastering of the Steppe Law bases and its basic norms fixed in the codes. “Kassym khannyng qasqa joly” (Kassym khan’s codes), “Essym khannyng eski joly”(Esym khan’s codes) “Jeti Jarghi” (Seven Statutes of Tauke khan), complemented by the precedent decisions of the famous biys - here was the basic conditions laid down for a biy, first of all as for a person administrating justice. Certainly, biys were different by spheres of their authority and influence, occupied different steps in judicial hierarchy - from biy of small aul, patrimonial collective up to biys whose glory and which influence reached on juzes, uluses in all territory of the Kazakh State. Depending on it rigidity of the requirements of biys varied also.
Parents, having noticed the natural potentialities of a young man, tried to give him purposeful education so that he can become a biy. First of all family taught him to master the riches of the Kazakh colloquial speech and common legal rules, helped him to master elements of art of polemic and solution of logic tasks, i.e. to find piquancy in unusual lifelike situations with which it was necessary to deal during judicial activity. This function was carried out if not by the parents, but by the old men in aul, known by their knowledge and life experience. It was considered especially important that the young man since early years entered into the retinue known biys, accompanying them on trips on steppe, mastered features and technology of the Steppe legal proceedings. These biys, in a role of the teachers, from time to time checked ability of the young man, having given him an opportunity to state the point of view concerning the probable decision on concrete disputed matters which were considering on the biy’s court. Kunanbai, Abai’s father, was subsequently the great national poet and known as “Tobe-biy” ¬the senior biy not only on the Middle Juz (second half of the XIX century). Kunanbai took his son to trips to the famous Koyandy fair, in Karkaraly - an administrative centre, where in the seasonal periods there took places meetings, disputes, courts with participation of the famous aksakals, biys and orators. There were many wise men in the clan Tobykty who were genius by their experience. Abai passed and experienced their school. As the researchers asserted Abai began to get on in the world at the age of 13 and at that age he pronounced judgment. The authoritative researcher of Abai’s biography Mukhtar Auezov wrote: “Mixing with a circle of subtle inspirers of interpatrimonial struggle, Abai, showered by nature with remarkable abilities, comprehended the most exquisite methods of conducting verbal tournaments, where eloquence, wit and resourcefulness served as the weapon. As lawsuits were solved not by tsar’s court, but on the basis of the existing down the centuries common law of the Kazakhs, Abai was bound to refer to treasures of the Kazakh folk-speech culture” . On the evidence of the researchers.
Aiteke biy (1666-1722) had passed the identical way. When he was at the age of five-six the old men of aul and public attracted their attention on him, on his special talent . Here it is necessary to tell about traditions of Steppe - “The endowment is found out from a cradle” “Bolar bala boghynan”. Famous Shorman biy from the Middle Juz at the age of 13 years, Eset biy (Kotybar’s son) heading liberation movement subsequently in the Syr-Darya valley (the Youngest Juz) at the age of 20 years had got wide popularity.
To receive the recognition in biy’s rank, except for personal qualities and mastering rules of the Steppe laws the applicant was bound to pass two test stages, some kind of attestation on maturity. He was due to demonstrate the intellect and logic of comprehension before the skilled public teachers, answering their philosophical questions, in order to receive a special blessing called bata from the old wise men. That is why there existed the saying: “Batamen er kogerer, jauynmen jer kogerer” - “Bata ennobles the man as well as rain improves the ground”. The claims of the future biy were the highest prestige of a wise man, blessing him on judicial activity.
Famous Tole biy (1633-1756) who was nicknamed “the father of biys” had passed such way of professional and moral perfection. His father Alibek was known as famous biy in the kin. The father frequently took the son to judicial suits, so he comprehended the secrets of the Steppe law. Tole began to participate in proceedings since 9 years, and in 15 years became known as a biy. He received «blessing» - “bata” from 90-years old wise man Zhetes biy, and from almost centenary famous Anet baba. This case was preserved in the national memory in such way: - “Anet Baba bir buma colqyldaq shybyq aldyrady: “Balam, mynany syndyryp korshy”, - deidy. Tole buylghan shybyqty olai-bylai iyp syndyra almaidy. Endi sol burna shybyqty birtindep syndyrshy”, - deidy Anet baba. Tole onai syndyrady. Anet baba: “Bydan ne tusyndyng, balam? - dep suraidy. Tole: “Tusyndym, Baba. Yntymaqty, birligi myqty eldi jau da ala almaydy. Sayaq jurgen, tayaq jeidy degendy bildiredy”, dep jauap berypty”. Sonda anet baba: “Barekeldy, balam dyrus taptyng. El biyleu ushin eldi auyz birlikke, yntymaqqa shaqyra, bill Baq, qaida barasyng? - Yntymaqqa baramyn degenning manisy osy, - dep batasyn Bergen eken.” - Anet baba having connected flexible branches in one bundle had offered Tole: - Try, sonny, to break this bundle! Tole could not do it at once. The branches curved, but didn’t get broken. Then Anet-baba offered to disassemble a bundle and to break by one branch, which was done. The old man asked: ¬What did you, sonny, understand from this? - Tole answered: I understood, respectable Baba, that united people can’t be defeated neither by an external enemy, nor the internal conflict. Anet-baba: - You solved correctly, sonny! Remember, that main thing in management is a skill to edify the population to unity and to achieve such unity. Sense of winged folk- expression: “Where do you head for, Happiness? - I go to the places called «unity», specify it ¬finished Anet-baba and blessed the young man, and gave him «bata». There is another sample of «bata” that Tole biy deserved from elder of the kin: Uiy balasy ma dep edym, rl balasy ekensyng. Auylyngnyng tangy bol, mangdayndaghy baghy bol”. “I thought you a son of your family, but it appeared that you are a son of your people. Be a sunrise for your people and bring happiness to them”.
There is a legend, narrating that Aiteke (1666-1722); who became subsequently a famous Biy of the Steppe, being a young fellow had received «bata» really from Kosuak biy, known wise man of Younger Juz, which edified that: “Kari tozady, jas ozady. Endigi jerde uiyde de, tuzde de bulik tizginin oozing usta!” - “The old men grow old, Youngers overtake them. Your time has come and I transfer you the reins of biy solution”.
Testing the applicant on biy and in the period, when he has not yet received a public recognition was carried out for the different reasons: in youth - for checking up availability of talent, in mature years - for ascertaining the degree of a biy’s endowments (in unfamiliar societies and neighboring estates). The governor (khan) of Urgench (East Turkestan) during his meeting with Syrym biy, already become famous, asked him four questions: “Dau muraty ne? Sauda muraty ne? Kyz muraty ne? Jol muraty ne?” Syrym biyding jauaby: - “Dau muraty-bity, sauda muraty -uty, kyz muraty - kety, jol muraty - jety” degen jauaby ushin Khan qonaqasyn berip, at mingizip shygharyp salypty.” - “Here breviety, expressiveness and concisioness of questions and answers are so original, that it is almost impossible to transfer their palette in translation, but the sense of them consists in the following. Questions posed by khan: ¬What is the purpose of a judicial dispute? Of a trade? Of a girl’s dream? Of a traveler? Syrym answered: The judicial dispute pursues the world, the trade - advantageous sale, girl His dreams is a good marriage and traveler - that final point. Satisfied khan had accepted Syrym as the dear guest and saw him off with gifts”.
Normative-legal knowledge of a biy and singularity of his thinking even then, when he was a young man was considered as the main criterion. It had also especially practical meaning, when considering competitiveness of pre-judicial and judicial processes, its transparency and public character. Certainly, the knowledge comes with years and during experience of life. But it must be laid in potential right at the beginning of professional activity. Such requirement was showed by a society to future and present biys. Each of them and even in mature age was not insured against such “attestation”.
The Kazakh common law system is historical, consists of layers of different centuries connected by common spirit, therefore is conservative and at the same time is mobile is dynamical within the framework of open space nomadic of a civilization. The biy-judge in this system acted by the connoisseur and custodian of the tradition and establishments of the Kazakh law - it was an obligatory aspect of his professional activity. And at the same time, biy was a free interpreter of the Steppe law in accordance with conditions of application of these norms.
The idea was considered indisputable, that Kazakh originates at Maiky biy, living in the 18th century, who comes from an ancient Kazakh patrimonial union “Uisyn”, at one time raised up to a title” Orda biys” at Chingiz khan (1155-1227). Indisputable principle of the Kazakh law was and remains to be an initial thesis: “Tugel sozging tubi bir, tup atasy Maiky biy”. “All legal establishments have common roots and the roots of all roots come to Maiky biy”. The codes: “Kassym khannyng qasqa joly” - “Kassym khan’s code” (1511-1532), “Essym knannyng eskijoly”- «Esym khan’s code (1598¬1623) and “Jeti Jarghi” of Tauke khan were considered the confided sources of the Kazakh law. They went under the names of khans, at which they were formed.
Normative-legal support of biy’s court and biys, except of common laws “khan”s codes were the precedent right, the decision on the concrete cases of the known and famous biys, who as judges had got all- Kazakh popularity.
The force of a word in the Kazakh middle age, and till recent time, was so prestigious and is authoritative, that frequently victory and celebration fell to the share of those who owned art of speech, handed over their positions. The argument of speech was much stronger, than the argument without worthy speech. These features of Steppe culture were boldly embodied in the Kazakh law. :”Erding kunung eki auyz sozben bitire rbiy” -”Skillful biy can solve murder case by only one brief speech” . Recognizing that - “Oner aldy qyzyq til” - “Of all arts a language is the most important” at the same time Kazakh law formulated its judicial purpose: “Til juyrik emes, bilikte shyn juyrik,)- “Eloquence is valuable, but the truth is more valuable”.
The uniqueness of the Kazakh law lay in the fact that having been raised in the frameworks of the nomadic civilization, it was the embodiment of many valuable features and human dreams and humanity of that epoch. In this plan it can and must occupy the right place in the world of historically important legal systems.
The meaning of the Kazakh law consists not in its exclusiveness as certain systematic-institutional establishment in a history. At an early stage of their history all nations had passed the same period atone or another form - period of domination of common legal regulation of the public and administrative relations. Many nations had such unstable, short, transitive period which fitted in the framework of epoch of medieval ideology of society’s division on the highest and lowest estates, dynastic struggle for authority, for new plunders, migration of nomadic and semi nomadic communities in searches for new lands. Kazakh law also differs in that it being guided in its basis by common legal standards and institutions, had been formed and developed as though in “free» zone and by virtue of it had soaked up more peaceful, naturally steady principles of the nomadic civilization. In this plan, we can say, that it had defined in many respects the epoch by a substantial part, in the word of which its frameworks were formed, and had developed.
In the Kazakh common legal system there were worked out the whole layer of principles and norms, determining the essence and the status of the judge-biy, which strongly have come in legal consciousness of the people, and made in many respects the contents of its traditional mentality. They are formulated in brief and expressively sayings: “Atanyng balasy bolma, adamnyn Tgbalasy bol” - “Do not be a son only of your father, but be a son of the nation”. “Tughanyna burghany biydi qudai urghany” - “If the biy is baissed towards his relatives the God will punish him”. “Tasta tamyr joq biyde bauyr joq” - “A stone has no a root, as well as a biy has no relatives”.
Truth and fairness, aspiration to comprehend them were fundamental bases of legal proceedings and taken out judicial decisions of biys, based on norms of the Kazakh law: “Atanngnyng quly aitsa da adilaikke basyngdy uy” - “Bow to justice, even if your father’s slave has told it”. - “Adet adet emes jon adet”. “Justice is higher than rules of customs”. “Til juyrik emes, shyn juyrik” - “Eloquence is important, but the truth is more valuable”. “Adilsiz bolsa biy ognbas, ayelsiz bolsa uiy ongbas” - “A biy is worthless, if he is unfair as well as house is empty if there is no woman”. “Biyding tort qyly - adal engbek, taza nuet, tereng oy, adildik” - “A biy is a slave of fours: honest work, noble intentions, profundity of thought and fairness”; “Elge bey qut emes, biy qut” - “Not the rich is boon for a country, but the biy is”. “Batyr degendy eki qatynnyng biri tabady, biy degendy ilude bireyi tabady” - “Either of two women can give birth to a hero but a rare woman gives birth to biy”.
Simplicity and intelligibility, spontaneity and ever willingness in consideration of disputes, guarantee of court’s impartiality and freedom of argumentations, an unbounded by anything opportunity of participating in process of the representatives - parties and everyone who present, aspiration to reconciliation of both parties maintenance of large logicality and persuasiveness of the judicial decisions in the public eyes, where the cruel and severe punishments for the guilty party were defined, all these made the form and essence of biy’s court. The biy-judge, on whom the responsibility of final judicial decision was laid, in this situation was more like an old wise- man, though quite often by his age he was a youth.
A biy - judge was free in manifestation of his acts and convictions.
At the same time, above him there was an invisible public eye ¬public opinion, representing a real force, more capable and influential, than higher powerful authoritative.
Form and structure of court depended basically on two factors; on desire of the participating parties and on complexity of the cases. The disputes could be solved by only by a judge individually. It was one of the most simple and widespread form. It is more applied, when men from the same village, close relative appealed to a biy for the resolution of conflict or when parties - claimant and respondent - voluntary betrayed the disputes to biy and asked his judgment. And quite often the judge himself showed the initiative, if the complaint of an offended person or a victim was inverted to the persons having close and family ties with the judge. In the latter case a biy himself called a defendant to the court, which could not ignore that invitation. His absence would be considered as a shame in family relations. If a biy was well-known, wise and incorruptible, then appeals to the decisions were rather frequently, and that’s more both parties from the most distant nomadic associations would come to him.
For consideration of prominent cases, distinguished by special complexity, in which different patrimonial collectives with distinct aggravation of relations were involved the board of biy-judges was formed. One of them was elected as a tobe biy i.e. a chairman and as the chief judge, whose opinion had priority significance in makinfl of the court decision.
The court of biys / or a biy / was based on controversial process. Each party appealed in court when needed his own biy, sometimes with more than one who can represent interests of relatives. An intercession in favour of anybody from aside was impermissible in biy H,s court. Proceedings took place as usual at a court yard of a khan, in the house of a biy, on appointed places, frequently on nomad camps.
The Kazakh law did not know a capital punishment, imprisonment, mutilation punishments, prisons and zindans of / underground cells of the confinement /, so-called criminal punishment. All judicial disputes and the most complicated conflicts were considered as civil-legal, entailed property, non-property, dishonouring, reconciliatory and other forms of punishment.
There are three basic classification groups of the responsibility and punishment: «Kun» a payment for murder or for deeds, equated with murder, «togyz» - literally «nine» the property accountability consisting of nine denominations/, «aiyp» the form of penalty. All of them have subject expression mainly consisting of total stock of horses and head of other livestock. As in each punishment, including the dangerous deeds always there were present elements of reconciliation of the parties, sometimes the responsibility took the form of matrimonial bargains.
In «Kun» (compensation for murder) the distinction was carried out first of all taking into account merits of a killed: « er kuny « /for warrior /, « suiyek kuny « / for the fact of murder /, «oner kuny» / for skill and knowledge of a killed in the art /, «ar kuny» / for the insult of honour /. A social membership of a killed was important. More severe punishment was given for murdering s representation of the top of a society and authority.
«Togyz» as the kind of the sanction, on our calculations, has 27 the most running versions and variants - from symbolical «nine» up to argymak / the best horse/ and aruana /thoroughbred Arabian camel/or girl of noble family at the head of «nine».
«Aiyp», as a measure of the responsibility and compensation, there was very simple and one-dimentional and was more applied as «at-ton-shapan» /a saddle horse and a robe / in the limited variations.
The types and forms of the responsibility and punishment in the Kazakh law were extremely rich and various. There existed wide choice of them, that provided on one hand the large scope of activity of court and judges and on the other hand it imposes on the judges the special responsibility for a logic, matter and moral substantiation of the decision while choosing a form of responsibility. Here judge’s personal merits and intellect were due to be shown which were valued not less than the issue of a suit.
On the whole Euroasian area, on its the most extensive Central Asian part from the ancient times up the present day there basically lived and are living Turkic speaking ethos’s and nations, known as Kipchaks.
From the point of view of eventfulness of relatively global importance this Kipchak Steppe can be divided into two regions:
Southern and Northern. Extensive « Southern region « having stretched from Iran to China, from India to present southern areas of Kazakhstan lays on the world trade ways overland from Europe to Asia and represented a zone of dwelling-place of semi-nomadic and semi-settled associations with the rather advanced municipal economy, trade and political organizations. This region was a cradle of formation of nations of Central Asia and powerful political unions of their ancestors which have rendered essential influence on a world history at early stages of the middle ages. The Turkic-speaking nomads - Gunns had begun one of the great resettlements to West in eve and at the beginning of our century, expansionist campaigns of Chingiz khan, whose army was of Turks in the absolute majority. / XIII century /, Tamerlan - (Aksak Temir the second half of XI beg. of XV centuries /campaigns had shaken the whole world. Here had been arising and disappearing a string of small and large Turkic speaking states by virtue of internal struggle, so under influence of external forces and temporary conquests.
The Southern region of Central Asia was the centre of stormy political social events and shocks.
«Northern Region», occupying one of the largest spaces, than «Southern», - from Balhash and Aral up to Siberian Altai, from the Volga river up to the Irtysh river, and Tarbagatai mountains in essence represented «free zone», where were created relatively peaceful conditions for consolidation of fruits of the nomadic civilization. Such, indeed was the case. Except for the autochthonal native Turkic population, here gathered steppe inhabitants from the southern part and settled splinters of great migrants searching « the Promised sites” or tired of numerous and dangerous changes and shocks. In this part of Central Asia far and remote from influential Islamic centers, was formed secular structure of a rhythm of «freedom» which had imposed the seal on all parts of society life organization including the legal culture?
On the Euroasian steppe the definitely expressed ethnic and political community had developed even during early medieval time on base of steadily settled and arriving nomads, which composed ethnogenetical roots of Turks, and in the further nucleus and genealogy of the Kazakhs. Expanding their influence and possession on South, the Kazakh steppe began to claim for all Turkistan. As the modem largest researcher of a history of Kazakhstan Kozybayev Manash under the editorship of which published almost all fundamental historical researches of last years are published writes, “Qoryta aitqanda Kipchak atauymen khalyq bolyp tanylghan Kazakh barsha turik aukletinen qara shanyraghy bolyp tabylady. Evrazianung qos qyrlyghynda tarihtyng qudretty torinde biraq shyqty” ¬”Summarizing, the Kazakhs recognition to which come under the name of Kipchaks were the direct keepers of Turkic traditions in the Steppe.
The following words of the prominent Kazakh thinker and poet Magzhan Zhumabayev told by him in the thirties of our century express historical factual truth:
“Turkestan eki dunyening esigi ghoi, Turkestan er Turkting besigi ghoi” - “Turkestan is the unity of two worlds /southern and northern /, Turkestan is a cradle courageous Turkis”.
These words nowadays drew on square of a small but multicrowded place in Ankara city, in the capital of Turkey. They remind to generations that the country of the Kazakhs - Kazakhstan is one of the basic centers of Turkey and, that from this place takes the roads to the world Turkic speaking ethno historical and legal cultures take the beginning.
The Kazakhs, their ancestors -preKazakh had adopted, cultivated and had developed up to relatively high level social-political regulative systems of standards, which originally had been formed adequately to conditions of a hostel and survival of semi-nomadic associations. The basis of these standards consisted of customs, traditions, and also rules introduced during changing of their internal and external economic and political situations. On their normative contents and construction unions and state formations of basically Turkic, and partly non- Turkic nations which inhabited the territory of Kazakhstan have left the traces. They in part were fixed “the Steppe legislation as much as they complied with conditions of nomadic and semi nomadic world in Central Asia, and being accumulated in it, and enriched it. Thus, the ancient world of Kazakh law appears as normative culture with roots stretching back into autochthons local regiment on one hand, and on the other hand, as the system which has soaked up useful models of normative attendance of basically Turkic and other countries and public systems, suitable and adapted to conditions of Kazakhiya.
The formation of the separate Kazakh state the historians assign to XV-XVI centuries. “The Kazakh law” is older than it, and is older than Kazakhs themselves as of the formed ethnic community. The ancient law of the Kazakhs was formed and has developed on the basis of legal views and normative acts of many nomadic and semi-nomadic associations, which were changing each other and basically formed of ancient Turkic- Kazakh tribal and state formations.
The Kazakh law, basic source of which was a common ¬normative system, cultural traditions of the Great steppe, showed during many centuries surprising viability and stability in conditions of direct and indirect violence of the foreign states, powerful influence of their ideology. They by force and admonitions imposed on the Kazakh society their regime and orders pleasing to them. The Kazakh society, at the cost of huge victims, certainly appreciably changed, but its age-old legal culture and language had appeared the most proof and viable. Even in these extreme conditions they had not only survived, but found internal force enabling them to be preserved and became stronger.
The enviable survivability of the Kazakh law in « to the ancient form «contrarily to all changes and revolutions which had rushed by in the steppe area of Kazakhstan, is explained to that in its basis and structure, in its normative system lay nationality character and natural freedom of the man, that is such moral ideals and principles, which are consonant to eternal aspirations of the man and mankind. It was one of the fundamental reasons that the Kazakh law had appeared stronger swords of the usurpers and their mode.
Tsarist /Russian/ government, carrying out active colonization politics in the Steppe territory, the beginning of which went back to the first quarter of the XVIII century, became more and more convinced, that the traditional legal regime deep-rooted in Kazakhiya via centuries was not only an ordinary regulative normative system and it was impossible to change it by force or replace peacefully by new pro-Russian legal system during one generation. The large connoisseur of history and life of the people, writer and scientific, academician Sabit Mukanov wrote: “Kiuz tukldyryqty qazaq atalatyn bul elding ornir tarihi, turmys-salty, adep-ghurpy, minez-qulqy aina qatesiz birdie80synshama turaqtylyq, tutastyq Oktyabr revolyutsyasyna deiyn tutas memleket bolmaghan elde saqtaluy tanggharalyq qubylys” - “It is incredible, but fact, that the Kazakhs, not having the state system and common administratively political centre before October revolution in 1917 nevertheless have kept steady fragments of the history, world outlook, life and cultural tradition».
The importance of the Kazakh law went far beyond the limits of its own regulative normative role in ethno-cultural borders of Kazakhiya. It carried and realized simultaneously several functions: regulative, administrative, consolidate, protective and humanitarian. It was, in a broad sense, the law and authority, source of public life and morality, art and spiritual value. By these features, probably, caused it vitality and surprising stability in the face of purposeful and powerful onslaught of Moslem law, Mongolian law and other foreign law systems just like nomadic, semi- nomadic communities, both settled and agricultural cultures and states, including Russian legislation. Their influence on the Kazakh law has not developed into destructive force. It frequently affected tops of a society, its separate social layers. Dominant regulative position of self-developing impulse of the Kazakh law was preserved till the newest time. As in the middle of 19th century Chokan Valikhanov said, «cyд биев, несмотря на 50-летие русского влияния, остался таким, каким он был за сотни, может быть, за тысячу лет до нас». “The Court of Biys, despite of Russian influence during 50 years, has remained the same, with what it was for hundreds may be for one thousand years before us» [7-9].
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