Role of biy court in improving of customary law

Abdrassulov E.B., LL.D. (Astana)
Kazakh biy court played an important role not only as an institution of justice in the Kazakh steppe, but also made a significant role in the improvement of customary law. Kulteleyev A. wrote on this subject, that "the practice of the biy court or the so-called precedent, as well as provisions biys Congress, or so-called "erezhe" constantly add, change existing legal customs" [1]. Such an addition and improvement of customary law was carried out in the process of interpretation, judicial discretion, to fill gaps in the law. In legal literature, noted that customary law is constantly drew its regulatory content and enriched by customs rules, as happened to a continuous transfusion practices in customary law. On this fact academician Zimanov S.Z. emphasized that "the Kazakh customary law - it is an unwritten law. It is built on a number of key regulatory institutions and on the set of short, easy to remember and at the same time expressive utterances containing basic substantive and procedural standards. The latter, as a rule, are the starting principles for deriving specific rules by logical calculation, interpretation, adequate specific life cases". [2] Thus, as a result of the interpretation of the general provisions of customary law judges-biys withdraw legal provisions resulting understanding and application of the general norms to the peculiar factual circumstances, the logical conclusion of the content of the law. Such deductive reasoning of the rules as a result of which we derive more specific rules are quite common in judicial practice. This is evidenced by the case "Tentek torteu bolganda" which was decided by known biy Bolterek Almenuly. As a young man, he realized that human relationships are usually difficult in depth to accommodate written or oral law. Based on the principle of fairness, humanity, honesty, he correctly decided case involving the payment of Kuna bai relatives who died as a result of negligence by the defendant. This case is indicative of the strength of right-conferring biys detail famous explorer Andabekovym Sh.
The idea that the rules of customs is not "frozen", unchanging institution, and the phenomenon, dynamic and meets the requirements of time, can be traced in establishing Maiky-biy: "Adet adet emes, jon adet" or "not in the habit of valuable customs rules and valuable righteous path" 1. On the formation of regulatory statutes courts biys say many rules, principles, norms, principles formulated famous biys and subsequently used as sources of Kazakh law: Ana - balasynyn kyzgyshy, ozyn kisada oni ot pen olimge kimaydy" - "Mother die first than betray his child of fire and death"(Kazybek biy), "corgin almaydy, bylgen alady" - "Steals not the one who has seen, and those who know"(Aiteke biy). Rule of law derived by known biys from general principles of custom, justice, morality, common sense, clothed in light, graceful, brief but meaningful sayings. They in turn were subjected to interpretation, which can be seen as a logical operation, and in epistemological terms as a method of mediated learning, during which the enforcer-biy, using knowledge about the real relationship, life forms and manifestations standards - principles in the world of reality, the true content of installed customary law. Having knowledge about these forms of expression of customary and case law, byi- judge through them sought out and established the true knowledge of customary law. And the truth is a property of the rule of law, which expresses the measure of the ability of its content and form a reflection of reality, public existance 2. Criterion validity of the results of enforcement biy court most scientists sees justice. Academician Zimanov S.Z. on this issue says that in any society, socio-cultural concepts such as justice and truth are fundamental in the relationship of individuals, groups and communities. However, in the relations of power and control these concepts can often be declarative and formal. Biy courts publicly and officially announce justice concepts basic criteria that they follow and which have guided them in the trial and adjudication. Moreover, the principle of justice gets sayings biys form of legal establishments, thereby integrating into the system of customary law as overriding institutions affecting the whole process of application of customary law: "Ak pen karani shyndyk ayrar" - " Only the truth is able to distinguish what is black and what is white"," Soz shynyna toktaydy, pyshak kynyna toktaydy"- " If found true, the words end up your way" or " word used to express the truth".
Lawmaking activities and right-conferring biys very clearly observed when analyzing erezhe - small codes of customary law. In the legal literature rightly pointed out that "on the basis of determining the unwritten principles of individual and ancient precedent laid and court decisions, an extraordinary congress biys had written to state specific regulatory rules having the force of law. Drafting erezhe ensured: bringing in customary law; introduction of necessary changes to some customary law in accordance with the new conditions and policies of the government authorities; development, according to the general principles of the Kazakh customary law, if necessary separate rules governing the new field of public relations in the villages, the uniform application of customary law" 1. Such activities of biy court are concretization of title, as customary law not only refined and systematized, but is in line with the new conditions, the emergence of new areas of public relations. However, these emerging standards drawn up in accordance with the general principles of Kazakh law. As an interpretive act erezhe helped to establish uniformity in the application of customary law, explained the meaning of general and abstract rules and principles of customary law. As the same set of rules legal provisions output from the rules and principles of customary law, extends to the circle of participants in advance impersonal social relations erezhe acted as a source of Kazakh law. Many authors note that Erezhe - a kind of legal document entitling the right-conferring and character that appeared in the second half of the 19th century. However, we know that the compilation Erezhe still practiced under Khan Tauke. It took the form of an agreement between biys their Congress to resolve the most complex cases. Such an agreement as practiced in the 18th and the first half of the 19th century. However, these agreements, wrote Kulteleyev T.M., are nowhere recorded, because they remain inaccessible to us. Since the second half of the 19th century compilation Erezhe passed under the direct control and organizing force of imperial administration officials, governors and district chiefs, and therefore the maintenance Erezhe seriously influenced legislation of the tsarizm1. Today studying the legal nature of Erezhe, the result of the activities of the Congress biys, we can safely draw a parallel with the regulatory decisions of the Supreme Court of the Republic of Kazakhstan, which clarify legal provisions on their use, as well as being the law in force in the Republic.
[1] The ancient world, right of Kazakhs. V.2 . p.230. Almaty 2003.
[2] S.Z. Zimanov Status and development tasks problems customary law. Problems of Kazakh customary law. Alma-Ata, 1989. P.16.
1 See Zimanov S.Z. Kazakh biy court - a unique judicial system. Almaty, 2008. P.68.
2 See Baranov V.M. The truth of the norms of Soviet law. Moscow, 198P. S. 227.
1 Problems of Kazakh customary law. Alma- Ata, 1989. Pp. 29.
1 Kulteleyev T.M. The notion of Kazakh law. In: Ancient world, right of Kazakhs. Almaty 2003. V.2 . p.237.