Abaikhanova (Magayaeva) P. I.

Assistant professor of Karachaevo

– Cherkessian State University

To a question of evolution of state-legal institutes of Karachay of XIX century: class structure and is standard-legal culture.

Modern development of the juridical science does not allow yet to reconstruct to the full traditional legal culture of the people of the North Caucasus, including karachaian. To such unexplored problems can carry the usual right - a phenomenon which is till now object of sharp discussions. As is known, detailed acquaintance to a common law Russian ethnos became the integral element of a policy of Russia in the North Caucasus only since XIX century¹. In works of scientists separate questions of formation and common law development were taken up, some monuments of the right were described, however for the present it is not enough basic researches of standard-regulative systems. Till October of 1917 y. researchers wrote, for example, how the common law was perceived by composers of sources some of interesting us and as the role of a common law was estimated by court, a Number of supervision has been resulted in articles about separate specific categories of actions of proceeding by which consideration the court should consider an adat installations of time, F. I. Leontovich noticed, that adats "... Give possibilities for the nearest acquaintance with a legal life of the people and for" comparative jurisprudence ". As he said, in them has remained" institutes of deep olden time ¹"

The special place belongs to the outstanding scientist M.M.Kovalevsky² which subject of researches was also the common law, and to its pupil, large Russian scientist B.V.Miller³ who directly was engaged in studying of norms of a common law of karachayan.

Marking study of a theme, we will notice, that until soviet period the given theme, as a matter of fact, was in a certain measure closed for historiko - legal science as the Russian autocracy believed, that its ideas illegal and there was danger to an existing system. During the Soviet period the problem of history of the right of the people of Dagestan also did not become object of due attention from researchers. The official ideology considered, that adats and as a whole common law are incompatible with socialism. It that studying of history and the common law theory during Soviet time practically was absent partly speaks as still in 20 years began campaign against occurring among the people of Russia of norms of an adat. The works which were obviously carrying out the ideological order have been published⁴

Studying of traditional norms of regulation of public relations as though cunningly from a legal plane also was carried out within the limits of the analysis of "vestiges" of ancient forms of the patrimonial and communal organisation, family - marriage relations ¹

This general tendency in domestic ethnography at all did not mean full leaving from the legal point of view on socio-standard culture of the people of Russia. More or less consistently she was spent by units of researchers to which it is possible to carry M.O.Kosven ², and in more later time.

A.I.Pershits, L.E.Kubbel , V.K.Gardanova, I.E.Sinitsin , L.S.Fuksa and others.³ In 20- 40 th years of XX century the leading continuer of Caucasian traditions in XIX century (A.F.Leontovich, M.M.Kovalevsky, etc.) in studying of a common law of the people of the North Caucasus became A.M.Ladyzhensky. As a result of ethnographic expeditions to the North Caucasus it has collected a considerable material on adats of the mountain people, their functioning in the Soviet legal system of 20- th years.

In Soviet historiko - legal literature studying of traditional norms of regulation of public relations was spent out of juridical planes and carried out in frameworks of criticism of "vestiges" of ancient forms of the patrimonial and communal organisation, family - marriage relations. Development of researches usual rights demands, first of all, new judgement of all of that has been made in this area, both in domestic, and in a foreign science. In August of 1997 in Moscow there has passed XI International congress of the Commission on a common law¹, in 1997 two collections of the documents shining a legal status of the people of Russia ². have been published. Similar conferences spend and in regions³ In the modern

For the first turn it the works on history of evolution of the right of the people of the North Caucasus of Z.H.Misrokov,¹ M.A.Ismailov²; Edieva F.D³. are the part of research works on a considered theme.

Every possible research directions (historical, ethnologic, sociological, legal, philosophical, etc.) throughout XIX-XX centuries, indefatigably interpret the nature, the maintenance and a common law role, as in social development, in general, and concerning historical development of the concrete people.

As is known, the basic source of data on ability to live of the ethnos which did not have written sources is a standard - legal culture.

Thereupon, it is important to consider a place and a role of socially - legal phenomena (public institutes), quite often representing itself as "passing forms" in transforming conditions of socially - economic development.

To similar "the passing form" can rank the "Caucasian" adat for which sources it is necessary to search in the traditional right. At the same time, to perceive аn adat right only as the ancient right in our opinion it seems wrongful. In the modern world of norm of the traditional right of the people of Caucasus and many other things of ethnoses not dying off common law, and powerful regulative phenomenon which has kept the force till now.

It is necessary not forget and that in a common law has kept the existence in the most radical breaks of social relations and the estable government (in distribution on Caucasus of Islam and accordingly introductions of the Muslim right, in an establishment Russian judicial system and legal proceedings in second half of XIX century, in an establishment of the Soviet power, during time and after disintegration of the USSR), and continues to exist in the transformed form now, once again having proved power of legal custom.

Abundantly clear, that the analysis of social culture and an adat right of karachayan society in XIX century is impossible without research of monuments of a common law and other materials on common law in Karachay.

Before to consider the basic aspects of estate - classical structure of karachayan society in XIX century, we will return to earlier period of development of karachayan ethnos.

So, on sources XVI-XVII centuries the social order of karachayan appears as feudal. The first authentic data on social structure of karachayan have started to arrive to Russia in XVI-XVII centuries from Russian attendante people, embassies and the diplomatic missions sent to Caucasus for the purpose of an establishment of political relations between Russian and mountain people. In this plan, one of substantial documents opening social stratification karachayan society and presence in it of feudal lines is embassy of clerk F. Elchin and the priest P. Zaharev (1639г.) in Mengrelia. In the document it is informed that in 1639 1640 the Moscow ambassadors have met in Mengrelia the visitor "karachayan murza Khodzyak".¹

And in most Karachay visited two others murzas-Elbuzduka and Galistan² Further in the same document it is said, that in 1639-1940 karachayan hospitably received in Baksansky gorge of the Moscow ambassadors F. Elchina and P. Zahareva going in Mengrelia and back. Thus in Baksansky gorge Elchin "traded and on feasts went to karachayan murzar... And gifts to their wives carried, and behind the auction of veins in lived in Karachay 15 days"³ Lived in Karachay murza Khodzyak visited migrel bishop Andrey because of friendly relation.

The further analysis of the document allows to draw a conclusion that Karachayan the society in first half XVII century was soslovno - the class society consisting of persons far not equal in rights and duties. Peasantry is dependeng from feudal lord the mentioned in sources XVII-XVIII centuries under a name of "muzhiks" and "serfs".⁴ Так, in 1639 the Moscow ambassadors employed "karachayan muzhiks" for resocks of weights through the Caucasian ridge¹ About slavery existence it is possible to conclude from the message of 1760 on purchase by karachayn the captured Tatar²

It is necessary to result and L.I.Lavrov's opinion which considered, that existence there feudal relations during earlier time follows from this, that they were known to half-sheep and alan still in XI-XII centuries. Further the author continues, that in XVII-XVIII centuries in Karachay and Balkaria are mentioned feudal lords, peasants, purchased slaves, and that the class of feudal lords is designatedin documents as miscellaneous: princes, murzy, owners, foremen, notable, landowners, basiyaty free peasants.³

In works of domestic researchers (V.P.Nevskaya, E.P.Alekseeva other), devoted to the period of the late Middle Ages (XVI - XVII centuries), definitely, that a basis karachayan settlements remained a neighboure's community (territorial), uniting unlike patrimonial not only relatives, but also inhabitants of village. Undoubtedly for an epoch interesting us (first half XIX century) certain steps to economic development of the mountain people are characteristic. Development of productive forces promoted karachayan to rise on higher step of socially – economic⁴ developments. The important role in this process influence of more developed states, in particular Russia has played.

In E.N.Studenetskaya and V.P.Nevskaya known works it is proved, that to the beginning of XVIII century in Karachay there were feudal relations though presence of a strong community braked by H.O.Laipanov their further development is revealed, that "in XV - XVII centuries karachayan and balkarian societies were at a stage of decomposition of a patrimonial system and formation of feudal relations"¹

According to facts given by E. N. Kusheva "sources XV - XVIII centuries do not leave doubt that at this time feudal relations in Balkaria and Karachay already took place"².

The basic list of concepts characterising group - classical structure of karachay society goes back to kipchaki.

So, in kipchaksko - latinsko - Hungarian dictionary of XIV century "Code Kumanikus" (1303) there are terms "biy", that "prince", "uzdeny"-free peasants, "kyli" the-slave, the house slave means, "karauash" - the slave.³ The wide distribution of these concepts of the past at ancestors karachaevtsev - kipchakov (polovtsi) testifies to presence of class division of a society.

The property differentiation of karachayan societies has been found out by

I.Tambiev. The author has revealed social and property differentiation in karachayan a society already during an epoch of the early Middle Ages. However that as a result of decomposition of a patrimonial system in Karachay there was "a slaveholding epoch" it is necessary to consider the statement erroneous.⁴

In a domestic historiography there is an opinion, that "... karachayan in XVIII - the beginning of XIX century lived a traditional society with lines of patriarchal and feudal relations in" the Kuban tops ". Their life differed special diversity. Backwardness of relations of production, incompleteness of process of feudalization have caused specific lines of class structure and stratification of mountain societies of Karachay..."¹ considers G.A.Kokiev. There is also other opinion, that in the end the XVIII-beginning of XIX centuries "in territory of Karachay and Balkaria, judging by princely surnames, there were feudal princedoms of Krimshamhalovih, Dydovuh, etc. In feudal princedoms possession of noblemen - of vassals of princes" settled down-marks in R.S.Dzhendubaev's work ².

Further the author continues... "By end of XVIII c. Karachay and Balkaria represented itself the ethnoterritorial area consisting of two parts – Balkaria and Karachaya, covering the earths on upper courses of the rivers Baksan, Chegem, Cherek - Тhyago, Cherek - Balkarsky, and also on upper courses of Kuban at bottom of Elbrus... "³.

The superiority in strength karachayan over balkarian has come in XVII-XVIII centuries as a result of new inflow of their fellow tribesmen from Balkarian in upper courses of Kuban. From now on uniform karachaevo – balkarian the nationality generated in XII - XIV cc., it was divided together with ethnoterritorial area of residing on two parts: on the one hand, balkarian and Balkaria, and with another - karachayan and Karachay. By 1830 karachayan countries was ten: these are Uchkylan, Kart -Dzhurt , Duut, Dzhazlik , Dzhamagat,Khasaut, etc.¹

Under other corner of sight regards this problem I.Arsanov considering, that "... Feudal estates Karachayan, having rather difficult structure, consisted of two basic categories - of noblemen – taubies and princes. Karachay represented in XIX century itself a number small feudal possession, making in aggregate territorially - political association of the big order in which head there was senior princely surname Krimshamhalov "²

In the beginning of XIX century, with a view of studying of Caucasus last travel undertaken by Academy of sciences, charged to the foreigner has been made. Has made its German linguist-orientalist G.-U. Klaprot, arrived to Russia in the beginning of XIX century. In 1804y. Klaprot consisted the graduated in a military academy of east languages and literature, in 1807 year was a member of the Russian Academy of Sciences under which commission in 1807-1808 has gone to travel across the North Caucasus and Georgia. The main object of travel was linguistic. Thanks to fine good linguistic preparations, Klaprot has studied a number of other questions connected with etnogeny of the Ossetin and an origin balkarian, karachayan and chercasians.

As a whole, it is possible to rank the detailed description of a social order of the people of Caucasus and specification of their linguistic classification though he has not managed as its merits to avoid in this plan of some errors ¹.

Here is how describes privileges the karachayan nobility G.-U. Klaprot : "Karachayan name the princes"biy"also three most notable families from them are Krimshohali, Urusby and Mudary"... Further the author lists the rights byev and duties free peasants, consisting in the following: "Though karachayan with anything especially do not allocate the princes, however free peasants should accompany top of the princes during their expeditions. When biy buys something, it usually gives a part to retinue which in the answer is obliged as it is possible to feed and serve is better it to it behind a table, treating its approaching for its rank meal and drink"². Separate mountain settlements coped elders and submitted to feudal lords "- writes also Klaprot ³.

Under F.I.Leontovich’s certificate⁴ karachayan society according to norms of a common law consisted of five estates: foremen, house slaves, kuly, cossacks and karavashi.

Under the characteristic resulted in the official report of the chief of Elbrus district N.G.Petrusevich from 1867г., in first half of XIX century at Karachaya was seven social groups: biy(ак suek - a white bone); chanka - semiprinces; a penalty teem the-black people; mullahs - clergy; azaty - libertines; the right peasants; peasants - deprived of civil rights ⁵.

Results of research of written and folklore data allow to draw a conclusion that the class structure of Karachayan societies consisted of three estates, each of which had the categories:

I. Aristokrasy - "ак suek" ("a white bone") :

1. Бии (bies)

2.Чанки (chankis)

II. Free obshchinniki - " ezden " (uzdeni)), " karakishi " :

1. Syrma - or ullu - ezden ("honourable" or "big uzdeni ")

2. Kara ezden ("simple ")

3. Saraima - ezden - (military-sluzhilye uzdeni )

4. Teben or siysiyz ezden ("not honourable uzdeni", "bottom uzdeni ") were called still "azat";

III. Personally - dependeding - (kul):

1. Dzhollu kuly - peasants with certain rights

2 Bashsyz or Dzhollsuz kuly - peasants deprived of civil rights

To the middle of XIX century karachayan the society looked as follows: biy - princes, made 3,6 % from the general population, uzdeni - a great bulk legally free obshchinnikov-67,3 %; azaty - libertines-12,9%, personally - dependeding peasants -12,3 % and peasants deprived of civil rights - patriarchal slaves, house servants - of 3,9 % ¹

The legal status of estates in Karachaya is considered in M.D.Karaketov's works which considers, "... That stratification process of karachayan societies has come to the end in the Middle Ages or as declared in XIX-beginning XX c. in Karachaya were noble surnames " in some prescription"- 587 или 700 years ago..." ²

Apparently, social stratification of karachayan society in XIX century in sources is described as a miscellaneous. There upon, to make true definition of socially –class system of Karachay the end XVIII - the beginnings of XIX centuries it is necessary to involve materials on common law to the right, in particular those laws and norms which reflected class division of the people. Adats fixed the legal rights of various estates of mountain societies of Karachay.

In this plan, N.P.Zagoskin's supporting custom in history of Russian right and considering opinion is convincing, that "relations of a legal life of any people far are not settled, and cannot be settled by the hand-written right; along with final in a life of any people norms of the right unwritten operate also, the right which have been not fixed by writing, but is firm and invariably living in national memory. Set of similar norms of the unwritten right operating in the environment of the people makes a common law".¹

This statement is applicable to standard - legal culture of karachayan. It allows to understand more deeply social structure of karachayan society, to track development of adatno - legal traditions in this society, to open specificity socially - economic and politiko - legal development, to show an originality of process of feudalization in Karachay.

1 See: Misrokov Z.H.Adat and Sheriyat in the Russian legal system. М, 2002.

1 Leontovich F.I.Adaty of the Caucasian mountaineers. Odessa.1882. P.36.

2 The utmost interest is represented by M.M.Kovalevsky's works: "Historiko - comparative method in jurisprudence and receptions of studying of history of the right", "the Primitive right" (1886), "Modern custom and the ancient law" (1886), "The Law and custom on Caucasus" (1890).

3 Miller V.B. Of common law area karachaian// the Ethnographic review - 1902. № 1, № 3.

4 "Harmful adats and struggle against them", "We’ll sweep away adats from our life", Karachaily I.Struggle against mountain adats - struggle for socialism//Revolution and the mountaineer. Rostov - on Don. 1932. № 8-9.

1 See.: Simeons J.I.Proishozhdenie of marriage and a family. M. 1974; Аlaev L.B.problem of a rural community in class societies//history Questions. 1977. № 2; hooks of M. of Century About a parity patrimonial and patronymic (clan) organisation (To question statement)// 1967. № 6.

2 See: Kosven.M.O.Brak-purchase//Red nov 1925. №2; it. Materials on history of ethnographic studying of Caucasus in Russian science// M. 1995.; Kosven M.O.Materialy on history of ethnographic studying of Caucasus in Russian science// M, 1955.

3 PershitsA.I.Problem of standard ethnography//Researches on the general ethnography. М, 1979; Кubbel L.E.Sketch on potestarno - political ethnography. М, 1988; Gardanov V.K.Materials on a common law of Kabardians. Nalchik, 1956; It. The Common law as a source for studying of social relations at the people of the North Caucasus in XVIII - the beginning of XIX centuries // СЭ 1960. № 5; Sinitsyn I.E.Custom and a common law in modern Africa. М, 1978; Fux S.L.Common law of Kazakhs in XVIII - first half XIX century Alma - Аta, 1981.

1 Common laws and legal pluralism in changing societies. Theses of reports on XI congress of the Commission on a common law and legal pluralism. M. 1997.

2 See: the Common law of the people of Siberia (Buryats, yakuts, evennky, altaians, shortsy. The author of comments V.V.Karlov. Under the editorship of J.I.Semenov. M. 1997; The national policy in imperial Russia. Civilised suburbs (Finland, Poland, Baltic, Bessarabia, Ukraine, Transcaucasia, Central Asia). The author of introductory article JU.I.Simeon. M. 1997

3 Shapsugov. D.JU.Common law and its role in legal development of a society / the Common law in Russia: problems of the theory, history and practice. - Rostov-on - to Don, 1999; Maltsev G.V.Ocherk of the theory of custom and the usual right / the Common law in Russia: problems of theory, history and practice. - Rostov-on - to Don, 1999.

1 Misrokov.Z.H.Dying sheriyat justices in autonomies of the North Caucasus. М, 1979. Misrokov Z.H.Adat and Sheriyat in Russian legal system M, 2002

2 Ismailov. M.A.Adats of Bezhtinsky district. Makhachkala 2004.; Studying adats of people of Dagestan./ the Collection of materials North-Caucasian scientifically-practical conference Makhachkala. DSU 1997. To a question on a role and an adat place in legal system of Dagestan. Judicial systemof Russia / Theses.Stavropol.2002; it. Adats and Sheriyat in history of the right of the people of Dagestan. The collection of materials international scientific conference.//Bulletin . Khmelnitskiy 2003.

3 Edieva F.D.form of landed property and land tenure on a common law of karachaian in first half XIX century//History of the mountain and nomadic people of the North Caucasus. - Stavropol: the Stavropol book publishing house, 1975.-P.52

1 S.A. Belokurov. Materials for Russian history. Embassy of clerk Feodor Elchina and priest Paul Zaharev in the Dadiansky earth (1639 1640), M. 1888. P.34.

2 S. A. Belokurov. Materials for Russian history. Embassy of clerk Feodor Elchin and priest Paul Zaharev in the Dadiansky earth (1639 1640), M. 1888. P.305, 318.

3 Embassy clerk Feodor Elchin and priest Paul Zaharev in the Dadiansky earth (1639-1640), M. 1888 P.302.

4 In the same place.P.344.

1 In the same placeP.318

2 Kabardian - Russian relations in XVI-XVIII centuries.M.1959. V II. P.205.

3 L.I.Lavrov.Karachay and Balkaria in 30 years of XIX century . M. P.85.

4 Studenetskaya Е.Н. To a question of feudalism and slavery in Karachay in XIX century//the Soviet ethnography. 1937. № 2-3. P;45-72; the Nevskaya V.P.Social-economic development of Karachay in XIX century in the prereform period. Cherkessk, 1960. P 78.

1 Laipanov Х.О. To an origin question Karachay and Balkaria //Materials of scientific session on an origin problem balkarian and karachayn the people. Nalchik, 1960. P.78.

2 Kusheva E.N.People of the North Caucasus and their communication with Russia (second half XVI-30th years of XVII centuries). М, 1963. P.72.

3 N.A.Baskakov. Turkish languages. M. 1960 P.62.

4 Notes on historyof Balkaria. - "Revolution and the mountaineer", 1933, № 1-2 P.32

1 G.A.Kokiev. Materials on history of Ossetia (XVIII). "News North - Osset scientifically - research institute", V.VI, Ordzhonikidze, 1934, P. 31.

2 R.S.Dzhendubaev. Public relations on the Western Caucasus: origin and development. Publishing house of the Rostov University.Rostov./ Don 1993.

3 At the same place .P. 135.

1 Р.С. Dzhendubaev. The decree.com. P. 161.

2 Arsanov I. Sketches of the Chechen dialectology. Grozny. 1986. P.148.

1 History of Academy of sciences of the SSSR .T.2, M-L. 1964. P.219

2 Klaprot G. TH. Travel across Caucasus and Georgia, undertaken in 1807-1808 гг//Adigy, balkarian and karachayan in news of European authors XVIII-XIX centuries / Under edition of Century V.K,Gardanov. Nalchik, 1974. P.274.

3 In the same place.

4 Leontovich F.I.Adats of the Caucasian mountaineers. Odessa, 1882. p.273-274

5 SAKR ( State archive of Krasnodar rejoin) F. 774, S.1. D.650. P.1-3

1 SAKR ( State archive of Krasnodar rejoin) F. 774, S.1. D.650. P.1-3

2 M.D.Karaketov. Polemic notes about a legal status of some estates and class groups of Karachay in XIX century//the Common law and legal pluralism on Caucasus in XIX - the XX-th century beginning. Materials of the All-Russia scientific conference (on September, 24-26th). Karachaevsk. P.154.

1 V.A.Aleksandrov. The common law of serf village of Russia XVIII- the beginning of XIX century of M. 1984. P.11.