the power of the state and reflecting the will of the legislator. Nomadic law is much more complicated, it consists not only and not so much of the written official norms, it includes a complex set of legal values, legal images, legal concepts, legal relations, legal consciousness, legal institutions and legal procedures. It is these qualities that give us grounds to define Kazakh customary law as a unique legal phenomenon that has been in force for thousands of years, which has preserved the Kazakh people and its territory for posterity.
The right of the Kazakh people enshrined liberty, moral ideas, ideals and principles, perceived by the whole people. This was the fundamental reason why it stood the test of time. Steppe law is syncretic, it combines morality, religion and morality, it is dissolved in political, economic, family and other institutions and processes. The main purpose of the right was to be able to hold people together in vast territorial spaces, to be a tool of reconciliation, not punishment, to unite, not divide people. The main mechanism for ensuring customary law was public opinion, as well as identity of a person who perceives himself as a single part of society, aware of responsibility not only for his life, but also for the lives of his fellow tribesmen. Many researchers ask themselves the question of why, for thousands of years, the customs and traditions of the Kazakh people were preserved in their pristine purity and transmitted without getting transformed.
Legal custom is one of the most ancient forms of law. Legal custom is a rule of behavior that, due to repeated repetition, becomes a habit, is passed down from generation to generation and is protected by the coercive power of the state. Stories there are many cases in which the customs of the tribal system, when transformed, gradually grew into authorized customs. The most common customs of the tribal system were the blood feuds and the eye for an eye, a tooth for a tooth, so-called talion principle. Gradually, these customs were replaced by a fine, and the fine, as society became divided into groups, was already becoming differentiated. As is known, in Kazakh society, customs served as the main source of law. Accordingly, in Kazakh society, the main form of law was legal or authorized custom. The main act, where the legal customs were concentrated, was the Zhety Zhargy law-set of Tauke khan.
In the historical arena at the end of the seventeenth century there was Tauke Khan, the son of Zhangir khan, who did much to unite all zhuz and uluses. First of all, he strengthened the central government, created a state council and a biy council. All the most important questions of the country, including the military, were decided on these councils. Also, Khan Tauke, for the first time in the Kazakh steppe, developed and approved a written code of laws Zhety Zhargy”(“Seven Code”). These were laws that covered almost all aspects of society.
According to some historical data, in the late seventeenth and early eighteenth centuries, the annual May qurultai of all three Kazakh hordes to solve cases meaningful for the whole khanate. It was here that Tauke khan declared the law set of "Zhety Zhargy", which became the first set of common Kazakh law. It also held a Khan trade fair. Let us consider basic pillars of the law. Changes in the political structure caused an urgent need for processing and the legal framework for the organization of Kazakh society. This work was carried out thoroughy and when Tauke khan found its consolidation in the set of laws "Zhety Zhargy".
This set was developed with the participation of famous biys in the early seventeenth century and included the following main sections that include the land law, which discussed the resolution of disputes over pastures and watering places. Secondly, family and marriage law, which established the procedure for the conclusion and dissolution of marriage, the rights and duties of spouses, the property rights of family members. Thirdly, military law regulating the administration of military service, the formation of units and the election of military leaders. Fourthly, the provision on the trial, negotiating the procedure for the trial. It is then followed by the criminal law establishing penalties for various types of crimes other than murder. The law which establishes the punishment for murder and serious bodily harm was next. Finally, the law on widows, which regulates the property and personal rights of widows and orphans, as well as obligations towards the community and the relatives of the deceased.
In addition to Zhety Zhargy, it continued to be used as a source of law and the Code of Kasym, especially in the field of international law. Peculiar additions to the codes were the provisions of the congresses of biys and stories containing information about the practice of the biy court - the judicial precedent.
Judicial proceedings were based on customary law and Islamic law. Particularly complex cases were considered by the congress of biys. The sultans and the khan took part in the proceedings of some cases. Biys, the sultans and the khan were rewarded for the analysis of the cases as well as various gifts. If the defendant avoided the court or the execution of his decision, the claimant had the right to produce a barymta.The right to property is the main institution of Kazakh law. Pastures and arable land belonged to the genus, the community, the cattle was in the family ownership. Winter pastures and irrigated arable land were especially strictly delimited.The institutions of compulsory law include contracts of sale, loan, hiring, storage and caravan transportation. In Kazakh law, there were also such peculiar institutions of compulsory law.
The marriage law of the Kazakhs corresponded to the economic basis. The main form of marriage was individual marriage. Polygamy was also spread among the possessing class. One of the peculiarities of family-marriage relations was amengerlik, the custom according to which the wife of the deceased passed to the brother of her husband. The prohibition of marriage between relatives up to the seventh knee was established. Every adult son had the right to part of the father’s property. Upon reaching a certain age, the sons were allocated to an independent farm. The whole household of the father after death was given to the youngest son.
In the Kazakh society of that time there was still no distinction between civil law and criminal law. The concept of crime merged with the concept of a bad deed or sin. In criminal law there was a law of retribution (blood feud). In most cases, the blood feud was replaced by ransom. For some crimes fines were imposed.
According to Zhety Zhargy, criminal responsibility usually extended only to the immediate perpetrator, however, the principle of the collective responsibility of the community was widely spread. So, if the defendant did not appear at the court or did not pay the Kuna, the fine was collected from the entire community. In such a case, community members were given the right to deal with the respondent at their discretion. Such a punishment as imprisonment among the Kazakhs did not exist, there were no prisons. In general, researchers note the humanity of Kazakh criminal law. Only in extreme cases, the death penalty was used. Such an exception was the rape and theft of someone else's wife. There were no special bodies for the execution of the sentence. This right was transferred to the claimant.
It is believed that when creating his laws, Tauke khan collected the biys of the three Kazakh zhuzes and, together with them, considered the existing Kazakh customs, some of them were eliminated as outdated, and others were adapted to new social conditions. Thus, the classical codification of law was carried out in the modern sense of the term. Scientists have attempted to distinguish between the ancient customary law and customs that exist in parallel with the legislative acts. As already noted, the Kazakh usual norms were not only fixed, but also adapted to the new conditions, that is, they underwent some changes due to the intervention of government officials. Moreover, these changes and additions were so significant that they allow us to speak about the emergence of new legal norms and acts.
One of the founders of the judicial-legal codes of the Kazakh Khanate was Maiqy bi, who was a prominent diplomat and public figure, adviser to Genghis khan. Strengthening and strengthening of the state is also associated with the name of Kasym Khan, the son of Zhanibek khan. Under his rule, for the first time in history, a systematization of legal customs and norms was held, called the Truth Kasym Khan. Esim khan made a significant contribution to the development of the legal system of the Kazakh society. He significantly strengthened military laws, increasing the responsibility of soldiers, which was associated with the need to protect against the aggressive aspirations of the Dzhungars. At the end of the seventeenth century, Tauke khan, Tole bi, Kazbek bi, Aiteke bi developed the law, which essentially became the direct system of laws, the code of judicial authority. However, since this set of rules reached us verbally, the public did not take these statutes officially as a code. Nevertheless, fostered for thousands of years in the depths of national traditions, social phenomena in the system of the state of the Kazakh nation, these laws served in good time to serve the people.
Zhety Zhargy included the decisions caused by the needs of the military-political and social life of Kazakh society. The most important moment that determined the nature of this document was the desire to adapt the norms of customary law to the new needs of feudalizing Kazakh society, legalizing those that corresponded to the interests of the nobility, to create new and more profitable ones instead of obsolete and undesirable. Since this document covers seven areas of the company's activities, it was named the seven Tauke Khan statutes. But there is another version. Thus, according to some scientists, the ethnonym Zhety Zhargy takes its roots from the event when seven biys took part in its development. It was at that time that the wisdom and foresight of the three great ancestors honored was manifested. They vigilantly predetermined the future of their people, marked the only sure way to save offspring and their native land, showed a true example of political pragmatism.
According to Zhety Zhargy, criminal responsibility usually extended only to the immediate perpetrator, while the principle of the collective responsibility of the community was widespread. So, if the defendant did not appear at the court or did not pay the Kuna, the fine was collected from the entire community. In such a case, community members were given the right to deal with the respondent at their discretion. Such a punishment as imprisonment among the Kazakhs did not exist, there were no prisons. In general, researchers note the humanity of Kazakh criminal law. Only in extreme cases, the death penalty was used. Such an exception was the rape and theft of someone else's wife. There were no special bodies for the execution of the sentence. This right was transferred to the claimant.
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