Biy’s court

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The image of a modern Kazakhstani legal institutional framework had been forming in the plane of a new history, in many respects it is borrowed, standardized, and integrated into the world legal system. But there was a time in the history of our people, when on an immense space of the middle-age statehood of Kazakh people an ancient Kazakh law, unique by its essence and purpot, was formed and existed not one century, and which is worth of being today a high standard of justice administration, enrich and spiritualize the process of becoming of the judicial system of the Republic.

In Almaty there was a remarkable unprecedented event — international scientific conference «Kazakh Biy’s Court — unique judicial system», dedicated to this legal institute of an ancient steppe.

The conference was quite a significant event in the scientific and legal life of the country. The forum united about two hundred fifty well-known domestic and foreign scientists in the sphere of jurisprudence, history, philology, philosophy from Russia, China, India, Japan, Great Britain and many other countries — researchers of becoming and development of legal systems. The Supreme Court RK supported aspiration of some Kazakhstani scientists to bring the research of the unique biy’s court out of narrow walls of educational institutions and start a large-scale dialogue with the world community, recognizing the universal cultural value of the legal system of the nomadic civilization.

The subject matter of suggested issues for discussion was rich and very interesting, concerning the role of the Kazakh biy’s court in the context of the world civilized process, its economic, social, institutional aspects, modern national significance of understanding ethno-anthropologic sources of the Kazakh law, the art of rhetoric and eloquence of biys, the whole layers, associated with written oriental monuments in the history of the judicial system, with regulation of certain kinds of disputes, conciliation procedures, and even a gender analysis.

Addressing national sources, conscience and historic memory of the people, universally acknowledged moral and human values, is not accidental at all. Today, when Kazakhstan is becoming a full-fledged partner of the world community, the issues of an adequate exercise of fundamental provisions of a fair and accessible justice administration gained a special significance. This dictates its demands not only to the content of legal instructions, but also to the level of legal culture of the society in the whole and each citizen.

And in this context, undoubtedly, the significance of the biy’s court institute in the formation of a statehood and legal culture of the Kazakhstani society is hard to overestimate. Great Kazakh biys left us a rich spiritual legacy, which till today did not lose its relevance. What, for instance, only one saying of a well-known Russian researcher of the ХIХ century V. Grigoryev deserves, who wrote: «...they (Kazakh people. — Auth.) have such an excellent jurisdiction and such procedures of an investigating and judicial process, which many long ago civilized peoples may be envious of». Not less flattering reviews about the Kazakh biy’s court and biys we will find in works of other Russian reviewers of the Steppe. And these affirmations happen to be, since being formed in bowels of the nomadic society the Kazakh justice administration due to its uniqueness attained a universal recognition, and worthily gained the title of «The Golden age of justice administration». In the memory of the people the Golden age is associated namely with the period of blossom of biys’ justice administration and triumph of legality, which arose at the time of Tauke khan’s reign. The biy’s court became the important institute of the state, its backbone, playing a consolidating role in the life of the Kazakh society. And this was a strong factor of preserving the state, ensuring unity of Kazakh nomads. The same time the famous code of laws “Zheti Zhargy” saw the light of day.

The biy’s court, as the court of good morals, was built up and based on such fundamental principles, which constitute its secure foundations, as incorruptibility of a judge, justness as the essence and moral orientation of judicial decisions, accessibility and public disclosure of a court, possession by a judge of the art of rhetoric as the means of proving and substantiation of a judicial decision, orientedness of the court on conciliation of parties and full compensation of damage done by the law violation. One of the outstanding special features of the biy’s court is its spirituality: a spiritual content of disputes under consideration always prevailed, biys tried to abide first of all moral stances, which were formed in the society.

Best of all the definition “people’s”, I think, may characterize the justice administration of ancient Kazakh people. The authority of biys held on the people’s recognition, virtually, it was a protection document, and a kind of «license» of a biy for justice administration. Biys were the main bearers of norms of law of Kazakh people, fulfilled almost all legal functions of the state: experts, interpreters and custodians of existed laws, reformers and legislators, advisers of khans and sultans. The main principle of their activity was the principle of fairness. Interests of the people were higher for them than some narrow local interests. A famous Aiteke-biy said: «My life belongs to the people, and to me only my death belongs». With such a powerful message the biy’s court possessed a perfect, maximum simplified and effective court procedure. Chokan Valikhanov cites an amusing fact, which remarkably characterizes the efficiency of the biy’s justice administration: Russian complainants and defendants in many cases preferred the biy’s court to the Russian investigation. And hundreds of such facts were registered.

Certainly, modern realia move us far away from the past, and it is impossible to transfer mechanically old traditions for today, though sometimes such suggestions are heard, especially when it concerns referee’s, world courts or the institute of pre-trial conciliation. But undoubtedly we can and should draw out a lot from the rich legacy of the biy’s court. The core and valuable thing is that historic lessons are called to help us to revive moral fundamentals in up-bringing of well-deserved judiciary personnel, and in judicial procedure. Involvement into the orbit of judicial law enforcement of such instruments as legal customs and principles, and ethic categories assumes a relevant level of education and thinking of a judge, his high moral and civil responsibility.

Therefore now we have a task before us to instigate an interest to study of a rich legacy, unique legacy, which has a worldwide value. The overpast conference is the first and very important step in this way. A group of domestic scientists-legislators did a truly titanic work on restoration of a large layer of the history, which concerns the ancient law of Kazakhs. Their long-term research, which turned into a multi-volume book «The world of the ancient law of Kazakhs», is hard to overestimate. As the legacy of the Kazakh biy’s court is not just a historic memory of our people, but also a valuable material, which goes beyond the national frames, and has a universal significance. I am sure that this work will be the basis of many school books, and return us to origins of the Kazakh law. Already now among wide circles of the concerned community there is an opinion that in the history of the Kazakh statehood the justice administration of biys played the same role, as, let’s say, the Roman law for the western culture and modern law. And I think it is hard not to agree with this. As, for instance, the professor of the Russian academy of sciences G. Yugai told at the conference. The center of scientific research of the Russian Academy of Natural Sciences headed by him for more than ten years deals with the study of development of the Eurasian civilization. Another volume of results of the research, which is prepared for publication, will be dedicated to the Kazakh biy’s court.

A historic importance of the biy’s court is that it was some kind of a sample of justice administration. Free speech as an indispensable condition of a normal functioning of the nomadic democracy, free social opinion, which meets only demands of original traditions and  customary legal norms, finally, solid affirmation of the principle of justness, standing above all laws, — are probably those unconditional guarantees, which the biy’s court ensured, which irrevocably were trusted. A lawsuit started there, where people were coming in the search of a dispute settlement. And they came only to those, whose opinion they trusted. It was a true cream of the people, which concentrated the whole goldmine of folk wisdom and spirituality.

We are proud that we live on the land with a rich past, which gave the world a completely unique legacy. In this sense, I think, the forum managed to embody the key idea of the conference — a comprehensive discussion of the significance of the role and status of biys, estimation of the Kazakh biy’s court, which has a civilizational importance and universal cultural value, giving impetus to new knowing and opening up spaces for new researches.

Kairat Mami, chairman of the Supreme Court RK