Legal Culture of Soviet Kazakhstan

Journal of Environmental Treatment Techniques

2020, Volume 8, Issue 1, Pages: 319-322

J. Environ. Treat. Tech.

ISSN: 2309-1185

Journal weblink: ttp://www.jett.dormaj.com

Legal Culture of Soviet Kazakhstan

Bakirova Aigul Muratovna *, Serikbayeva Saule Serikbayevna

Peoples' Friendship University of Russia, Graduate student of the Department of the History of Law and State, Law Institute, Moscow, Russia

E.A. Buketova Karaganda State University, Senior Lecturer, Department of Theory and History of State and Law, Karaganda, Kazakhstan

Received: 12/08/2019

Accepted: 15/10/2019

Published: 20/02/2020

Abstract

The article discusses the history of the formation of the legal culture of Kazakhstan in the Soviet period. The article illustrates both

the progressiveness of the reform as well as the consequences of the introduced innovations for Kazakhstan. In general, there is noted a

positive role of Soviet transformations in the formation of the legal culture of Kazakh Soviet Socialist Republic. One of the positive

factors is the abolition of some of the traditional institutions of Kazakh customary law, improvement of the social status of women and

formation of a new Soviet concept of citizen rights.

Keywords: Kalym, Kun, Barymta, Levirate marriage, Polygamy, Court of biys, Aksakal courts, Provincial courts, Nomadic form of

development

party with the idea of the future constitutional structure and

Introduction

status of Kazakhstan from the point of view of “Kazakh liberal

democrats” [2]. The program consisted of 10 points and was a

combination of socialist and bourgeois-democratic ideas [3].

For the first time in history, the program enshrines new

foundations of the state system and the legal status of the

indigenous population. The program indicated that Russia

should become a democratic federal republic with Kazakh

autonomy, religion should be separated from the state, and that

fundamental rights, freedoms, legitimate interests and duties of

citizens, legal principles, guarantees of the legal status of a

citizen should be established. At the same time, the court of

biys was still a just model of the national court in Kazakh

society for members of Alash party.

The Alash party left portion of the legal proceedings under

jurisdiction of the traditional court, simultaneously introducing

the institution of a jury trial, which they rightfully considered

as an attribute of a democratic republic and considered the

future of Kazakhstan to lie in this legal institution. The

innovative ideas of the members of Alash party radically

changed the foundations of the traditional legal culture of

Kazakh society.

With the advent of Soviet governance, a task was set to

change the legal system of Kazakhstan, based on ideas of

Soviet legality and justice. The formation of the Soviet legal

culture began with an improvement of the pre-revolutionary

judicial system. The new court system in Kazakhstan

experienced great difficulties and suffered numerous costs

while being established. There was a complete liquidation of

all judicial bodies, law enforcement agencies, advocates, and

prosecutors. The legal basis for the new structure of the

judiciary was a signing of the Decree dated July 10, 1919,

which stipulated activity of the arbitral tribunal, county court,

district court and revolutionary tribunal. Before introduction of

the codified Soviet criminal law, courts were guided by the

The formation of the legal culture of Soviet Kazakhstan

was characterized by such important social processes as

transition to a settled way of life, development of various types

of agriculture, urbanization and, respectively, a change in the

entire legal system of Kazakh society. The situation in the

region began to change after the October Coup. In 1917 – mid

930s there were taking place truly revolutionary changes in

Kazakhstan: formation of the command-administrative state

system; change of the political-legal, material, spiritual

foundation of culture; transformation of the social image of

Kazakh society [1].

Materials and Methods

The study is based on the narrative method (descriptive –

narrative), which is necessary to be used in the study for the

presentation of historical facts. The formation of the legal

culture of Soviet Kazakhstan and the study of the texts of legal

acts - all made it possible to penetrate the experience of the

pre-revolutionary nomadic legal culture of the Steppe territory.

The article uses the comparative method as one of the main

research methods, which made it possible to investigate the

historiography of traditional institutions of Kazakh customary

law.The problem-chronological method of study helped to

divide the subject of the study into a number of problems

because of which there used to arise discussions and disputes in

the historiography of Kazakhstan, mainly regarding the process

of collectivization and transition from a nomadic form of

development to a settled way of life.

Discussion

An important role in the formation of the legal culture of

Soviet Kazakhstan was played by Alash party. The vision on

the future of Kazakhstan was embodied in the program of the

“

revolutionary justice” while considering cases, in other words,

courts independently used to determine the corpus delicti and

sanctions. At the same time, courts of biys, also called

Corresponding author: Bakirova Aigul Muratovna, Peoples'

Friendship University of Russia, Graduate student of the

Department of the History of Law and State, Law Institute;

Email: aigulya_2050@mail.ru.

“

Aksakal” courts, which examined cases on the basis of the

customary law, continued to operate in Kazakh regions [3].

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2020, Volume 8, Issue 1, Pages: 319-322

The governing Bolshevik party believed that Kazakh society

was being held “in captivity” by the patriarchal tribal remnants,

therefore, taking into account the existing traditions and

customs of the indigenous population, the party recognized the

legality of the traditional courts and allowed customary law to

remain in force, since none of them contradicted Soviet law

recognized as a new source of lawmaking. The people’s court

was absolutely free and guided, first of all, by its legal

consciousness, as a result of its main objective - criminal

repression [6].

In our opinion, Kazakh customary law was at first

convenient for the new government for several reasons. Firstly,

the period was marked by a general crisis of the new judicial

system. Secondly, the introduction of legal proceedings by

arbitration courts filled only gaps in the legal regulation of the

Soviet legal system. However, there was introduced a new

concept of revolutionary law into practice, and in accordance

with it, the work of traditional courts began to complicate the

work of arbitration courts. The successful operation of the

court of biys as well as the Aksakal courts did not give way for

arbitration courts to develop in the region, as a result, these

courts were declared as relics of the patriarchal-feudal norms

of the Adat and stood in opposition with Soviet legal system.

The period of 1926 to 1934 was marked by the fact that judicial

functions were carried out by punitive bodies, such as the

Emergency Commission to Combat Counter-Revolution and

Sabotage, afterwards known as the State Political Directorate

under People’s Commissariat of Internal Affairs of the Russian

Soviet Federative Socialist Republic and the Special Council

with judicial functions [7]. Thereby, at the beginning Soviet

judicial system approved traditional courts, however,

subsequently it abolished them and was further presented as a

three level judicial system.

National-state demarcation of the Central Asia was one of

the most important events of the first years during development

of the Soviet state and law. In the year 1921, there was a

delimitation of the territories of Kazakhstan in the west and

north of country as well as Western Siberia. On September 16,

1924, the Emergency Session of the Central Executive

Committee of Turkmenistan adopted a resolution on the

national-state demarcation of the republics of Central Asia [8].

As a result of the national-state demarcation of Central Asia,

the unification of Kazakh lands in a single Kazakh Soviet state

was completed. Due to these events, there occurred an increase

of the population and the territory in its historical borders and

as well as there was increased economic potential of

Kazakhstan. In December 5, 1936, Kazakhstan, being an

autonomy of the Russian Soviet Federative Socialist Republic,

was transformed into a union republic and became known as

Kazakh Soviet Socialist Republic (Kazakh SSR) [9].

Historically Kazakhstan was a country with a nomadic

form of way of life; as a result, the task to enforce adoption of

the settled way of life by the nomadic as well as semi-nomadic

herders became an acute matter. In August 1931, leadership of

Kazraykom instructed local party and Soviet authorities to

facilitate the process of collectivization of semi-nomadic and

nomadic Kazakh peasants as well as to facilitate the process of

their transition to settled way of life. By the year 1938 the

process of transition of Kazakh nomads and semi-nomads to

settled way of life was basically completed [10].

In our opinion, there were not taken into account the laws

of the traditional Kazakh economy in the process of the Soviet

reform in Kazakh Autonomous Soviet Socialist Republic

during transition to a settled lifestyle. The prevailing nomadic

form of development, which combined stall and free pasture

livestock since ancient times, was irreparably damaged. As a

result, there took place mass migration of Kazakh population

outside Kazakhstan borders, the number of livestock decreased,

transition to agriculture was carried out by violent methods,

there also took place an outbreak of epidemics and hunger. The

settlement process that ended by the year 1938 is regarded by

many contemporaries, state scientists and historians of both

Kazakhstan and other members of Commonwealth of

[

4]. At the beginning of the 20^t^hcentury, the legal system of

Kazakhstan was syncretic: Soviet judiciary blended into

traditional courts. In the process of state revolution in 1917-

920, during conditions of the state crisis, the court of biys

grew in influence as they were once more involved in criminal

cases, including murder charges. Some traditional institutions

such as kun and barymta were also being revived. Along with

the ascension of the Soviet governance there were also taken

measures to improve the judicial system in the territory of

Kazakhstan. In the year 1923 there was introduced the

“

Regulation of the Judicial System of the Russian Soviet

Federative Socialist Republic (RSFSR)”, 1922.

As a result, there were introduced new legal acts as well as

new legal institutions, which were being consolidated on a

legislative basis and while replacing the old system of

customary and imperial law, resulted in the formation of a new

Soviet legal system.

However, it should be noted that there was a considerable

doubt in regards to adoption of the new legal system in

Kazakhstan. The court of biys, which acted as the arbitration

court since the establishment of the Soviet governance, soon

was banned. It was noted by Kazakhstan researchers of Kazakh

customary law Z.Zh. Kenzhaliev and S.O. Dauletova that in

terms of politics and activities of the Councils on the abolition

of customary law and traditional legal institutions the court of

biys went through three stages before leaving the historical

arena and giving way to the “new” Soviet law. The first stage –

began at the moment of the establishment of the Soviet

governance until the formation of the Kazakh Autonomous

Soviet Socialist Republic (1917 – 1920), during which the

Soviet government recognizes the common law of the

Kazakhs, demonstrating tolerance to traditional institutions of

the people of Kazakhstan. The second stage – began at the

moment of the formation of the Kazakh Autonomous Soviet

Socialistic Republic (1920 – 1925), when permissive policies

on the part of the governing political party and state bodies

turned to the idea of combating remnants of the patriarchal-

feudal norms of the adat, abolishing the institutions of barymty,

kun, kalym, polygamy, amenguerism, and abolishing the court

of biys as well as the Aksakal court. The third stage – began in

the year 1925 when there was a struggle with the Aksakal

courts on the basis of the federal criminal law [5]. In chapter X

of the article 203 of the Criminal Code of the RSFSR there was

imposed a sanction on making decisions in accordance with the

customs of the indigenous people. Despite survivability of the

customary law since joining the Russian Empire, the court of

biys was abolished in the Soviet period.

After abolishment of the arbitration courts as well as

revolutionary tribunals in the year 1923, there was introduced

the “Regulation of the Judicial System of the RSFSR”, 1922.

The new court system was as follows: a people’s court

composed of one judge; a people’s court composed of one

judge and two lay assessors; provincial court; Kazakh branch

of the Supreme Court of the RSFSR with cassation and judicial

boards [3]. New people’s judges, unlike biys, were elected by

the executive committees of the provincial councils. The

composition of the elected lay assessors, was mainly

represented by workers, peasants, representatives of medium-

sized farms, prosperous peasants, traders, however, this judicial

body was not represented by the industrialists. The people’s

courts under the Regulation of the Judicial System were

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2020, Volume 8, Issue 1, Pages: 319-322

Independent States (CIS) as a deep economic depression and

tragedy of Kazakh people.

of that time uses the achievements of the criminal-law science

in subsequent adopted normative acts, for example,

dispositions of the articles on property crimes did not undergo

any special changes. The Civil Code of 1922 consisted of 435

articles and included four sections: the general part, property

law, law of obligations, inheritance law, which were divided

into chapters (except for inheritance law). A special feature of

this codified act was that it was the first civil code in the world

of a socialist state. The legislation introduced three types of

ownership: state, cooperative and private, therefore, special

emphasis was placed on the form of ownership.

Thus, new codified acts in Kazakhstan shaped the

formation of the Soviet criminal and civil law. During the

period of the new economic policy socio-political changes as

well as changes made to the legal structure led to significant

changes in the legal culture of Kazakhstan.

During this period Kazakhstan actively participated in the

rule-making process, trying to reflect the specifics of the

republic in the adopted normative legal acts. In the year 1928

chapter X “On crimes constituting the remnants of a tribal life”

is incorporated into the Criminal Code of the RSFSR. By the

end of the 20s of the XX century, various governmental bodies

adopted a significant number of regulations and as a result,

there increased an urgent need to systematize law. In the year

1930 there was introduced “Systematic Collection of Laws of

the Kazakh Autonomous Soviet Socialist Republic in force

until 01.01.1930” and all laws as well as provisions were

recognized as invalid [14].

The progressive development of Soviet legislation is

evident, as Soviet legal idea achieved tremendous success in

the field of codification of normative legal acts. The

prerequisites for these successes were such processes occurring

in Soviet law as a change in the sphere of legal regulation,

differentiation and integration of the legal regulation of public

relations, which between 1960-1980 consequently led to the

development, codification and adoption of such progressive

normative legal acts, from a legal point of view, as the Civil

Code, Fundamentals of Civil Legislation, the Code of Labor

Laws, the Code on Marriage and the Family, a collection of

current legislation in fifty volumes and, finally the Constitution

[15].

Along with reforms to eliminate nomadic economy, there

was formed a new system of law based on the system of

principles of Soviet law. This system, first of all, denied the

continuity between the legal system of the Soviet state and pre-

revolutionary tsarist law, and therefore Romano-German law as

well. Secondly, the concept of natural law; division of the right

into private and public; rights and freedoms as a human as well

as a citizen as the highest legal value; equality of all forms of

ownership – all of these were denied by the Soviet lawmakers.

Thirdly, there was officially established the priority of state

interests over public and private interests [11].

The legal system of Kazakhstan underwent a thorough

reform, in connection with the emergence of a new concept for

the development of the Soviet state and law. Such legal

institutions of Kazakh common law as kun and kalym become

abolished. In 1920, there were adopted decrees of the Council

of People's Commissars and the Central Executive Committee

of the KASSR “On the abolition of kun” and “On the abolition

of kalym”, which stipulated criminal liability for violation of

these decrees. Kalym was recognized as a relic of antiquity,

reducing the status of a woman to the position of a product.

The decree “On the punishment of polygamy and forcing a

woman to marry a Kyrgyz” became a normative act that

provided for criminal liability for compliance with legal

customs and traditions. This Regulation recognized polygamy

as a criminal offense; as a result, not only people entering into

a marriage were recognized as guilty parties, but also officials

who registered such marriages. This demonstrates a high legal

level of this legal act, which stipulated criminal liability of

special entities - officials. In the Decree "On the marriage law

of the Kazakhs" polygamy is stated as a custom that deeply

humiliates the moral dignity of a Kyrgyz woman and that

creates enslavement and exploitation of her personality. In the

year 1921, this policy of combating remnants of the

patriarchal-feudal norms of the adat was continued by the

adoption of the Decree of the Central Executive Committee

"On Combating Cattle Breeding", which was directed against

the implementation of barymyta. Barymta has existed in

traditional Kazakh society since ancient times and was used as

method to restore a person’s violated rights. C.Ch.

The legal status of women in Kazakhstan should be noted

as a separate issue. Until the beginning of the 20 century

Valikhanov wrote that Barymta is an institution of Kazakh

customary law, resorting to which there had to be a reason,

while for recognition of its lawfulness – there had to be a

compliance with certain conditions governed by traditional

Kazakh law [12]. The abolition and prohibition of legal

institutions of Kazakh customary law has changed the whole

future fate of Kazakhstan. Soviet governance abolished the

following: the nomadic way of life, Kazakh customary law and

private ownership of livestock and rangelands. Taking into

consideration all repealed and abolished legal institutions of

Kazakh customary law with the help of new decrees and

decisions of the Soviet government, it can be stated that there

was embedded a new concept of revolutionary, proletarian law

in Kazakhstan as a means of implementing the dictatorship of

the proletariat.

women in Kazakhstan were deprived of suffrage. Soviet

modernization emancipated women, separated religion from

the state, and formed a different pathway of social life.

Sustainable models of gender relations also underwent

modifications with the beginning of the Soviet transformations.

It was women who were exemplary model of consciousness,

discipline and responsibility. The historic achievement was the

emancipation of the women of the East. The Tajik Autonomous

Soviet Socialist Republic adopted normative legal acts

enshrining the legal status of women: the Decree “On the

Rights of Workers and Revolutionary Legality” of October 9,

1925, the Decree “On the Rights of Working Women of the

Tajik Autonomous Republic and the Need to Combat Their

Enslavement” of December 12, 1926, the Decree “On the

provision of benefits to women to protect them through judicial

institutions against violence and insults regarding the removal

of the burqa” [16]. On June 14, 1921, for the first time in

history there was adopted a Decree of the Central Executive

Committee of Turkestan Soviet Socialist Republic on the

abolition of kalym in Kazakhstan; in the year 1922 there was

established a legislative responsibility for coercion to a

marriage; in the year 1924 there was passed a law prohibiting

bigamy and polygamy; in the year 1925 there was adopted a

law on punishment for marriage with minors, bride kidnapping

In the year 1922, during the period of the new economic

policy, there were introduced first Soviet codes such as: the

Code of Criminal Procedure (May 25), the Criminal Code

(

May 26), the Civil Code (October 31). The new Criminal

Code was distinguished by a high legal technique in the field of

criminal law. Despite the complexity and inconsistency of the

period of formation of Soviet criminal law and its codification,

a lot of norms and institutions embedded in it turned out to be

viable, which indicates the continuity of the provisions

prevailing pre-revolutionary science and law [13]. A legislator

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2020, Volume 8, Issue 1, Pages: 319-322

and amengerstvo [17]. Since year 1924 there was introduced a

holiday “Day of the abolition of kalym” in Kazakhstan as well

as other republics of Central Asia (Amanzholova, 1930). With

the beginning of the Soviet transformation, women began

being more involved on economic and political level as well as

in social structures and relations.

In our opinion, the new system of governance

fundamentally changed the idea of the social purpose of

women by creating all the conditions for their participation in

all spheres of public life.

https://superinf.ru/view_helpstud.php?id=605 (date of access: July

5, 2019).

0. National-State delimitation of Central Asia and Kazakhstan.

Electronic resource] // [Access mode]: http://bibliotekar.kz/

(

accessed: July 12, 2019).

1. Proceedings of the Central Committee of the RCP (B.). 1921. No.

1. C.6; Soviet construction. 1929. No. 12. S.95-103; Number 2.

Pages. 111-113.

12. Suleymanov, A. A. The Criminal Code of the RSFSR of 1922:

conceptual framework and general characteristic: dis. ... cand.

Legal Sciences: Ulyanovsk, 2006:12.

3. Takhirov, F. T. The history of state and law of Tajikistan (1917-

929). Dushanbe. 2001;2(1):441-460.

Conclusion

4. The language situation in Kazakhstan. [Electronic resource] //

[Access mode]: https://www.kazportal.kz/yazyikovaya-situatsiya-

v-kazahstane/ (accessed July 15, 2019).

15. The main elements of the Soviet legal system. Source:

https://superinf.ru/view_helpstud.php?id=605.

In 1921 – 1922 there was carried out a land reform in

Kazakhstan, as a result of which, most of the land was

transferred to the working people of Kazakhstan.

consequence of this reform, Kazakhstan was provided with

cattle drive paths, summer and winter pastures as well as

hayfields.

6. Transition of Kazakh nomads to a settled way of life. [Electronic

resource] // [Access mode]: http://bibliotekar.kz/(address: July 12,

019).

There took place the abolition of obsolete traditional

institutions of Kazakh customary law, such as kun, kalym,

polygamy, amengerstvo, barymta and the process of

emancipation of Kazakh women. There also was created a

national Kazakh statehood in the form of a union republic.

As a result of collectivization and transition from a

nomadic form of development to a settled way of life, the

negative outcome included a catastrophic reduction in the

number of livestock, a decrease in the Kazakh population due

to mass migrations, starvation and epidemics.

7. Useinova, K. R. The role of barymty in the traditional society of

the Kazakhs. Almaty 2008. Access mode: Internet resources.

https://articlekz.com/article/7089

Conclusion. Summarizing the above, the following should

be noted:

Abolishment of the customary law and traditional legal

institutions;

Creation of a new concept of law and formation of the

Soviet legal culture;

Elimination of patriarchal hierarchical value and

structural stereotypes in relation to women;

Collectivization and transition to sedentary habits are

regarded as a deep economic depression and tragedy of Kazakh

people, however, at the same time, there is a progressive

economic development of Kazakhstan;

Development of the Soviet state and law, development of

constitutionalism in the Kazakh SSR and as a consequence,

adoption of a new normative legal acts, and the creation of a

new court system in Kazakhstan.

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