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To the history of formation of a judicial management system in prereform Ossetia



UDK 347

To the HISTORY of FORMATION of the JUDICIAL MANAGEMENT SYSTEM IN PREREFORM OSSETIA

© 2009 of E.I. Kobakhidze

North Ossetian institute humanitarian North-Osetian Institute of the Humanitarian

and social researches Vladikavkaz and Social Researches of Vladikavkaz Research

RAS scientific center, Center of the RAS,

362040, Vladikavkaz, Mira Ave., 10 362040, Vladikavkaz, Mir Ave, 10

The specifics of processes of emergence and development of a judicial management system in the North Caucasus at the end of XVIII - the first half of the 19th century are analyzed. Is shown what measures were undertaken by the Caucasian leaders for unification and standardization of judicial authority in the region and as this activity affected functioning of traditional administrative structures. The conclusion about the ambiguous results of the transfer of traditional legal proceedings to the all-Russian legal framework achieved by the time of carrying out judicial reform of 1864 is drawn

Article is devoted to the analysis of specificity ofprocesses of appearance and development ofjudicial-administrative system on Northern Caucasus in the end of XVIII - first half XIX centuries. Shows, what measures the Caucasian administrators for unification and standardizations of judicial power undertook in region and how this activity was reflected in functioning of traditional power structures. The conclusion about ambiguous results of translation of traditional legal proceedings on the Russian legislative base, reached by time of carrying out ofjudicial reform 1864, is done.

Formation and development of the Russian state administrative facilities in the North Caucasus answered in general the idea of strengthening of the centralized power in the empire, however in each of regions of edge this process differed in the specifics; not the exception was made also by Ossetia. Inclusion of all North Caucasian outskirts in the state economic and political and legal space pressed first of all unification of local management, reduction of its organizational forms in compliance with those that worked in the central Russian provinces. It is impossible to claim that it was the simple task. The amorphy, institutional uncertainty of traditional self-government, the informal nature of activity of patriarchal power structures, their polyfunctionality made an impression of the fact that mountaineers not only had before no "order" at the Russian administrators, but also "do not understand need of the power" [1, page 271].

Proceeding from strategic political tasks in the Caucasus, the Russian government already connected the first steps in administrative development of edge with the sphere of legal proceedings which before other spheres of activity of mountain societies underwent standardization and unification according to the all-Russian establishments, having been that main channel on which penetration of state and administrative methods of management into public life of mountaineers went most intensively. Activity of the Caucasian leaders concerned first of all local administrative structures in mountain societies of Central Caucasus Mountains and was reflected mainly in the organization of sudebnoprocessualny activity in which practice of use of the all-Russian statutes became widespread that considerably limited functional powers of traditional intermediary vessels.

The first official public institution in which laws of the Russian Empire in relation to the population of mainly foothill territories of the North Caucasus were approved became opened in 1793. The top boundary court in Mozdok [2] which intended for consideration of criminal cases "all in general aziatets, under dependence of the military governor in this (Caucasian. - E.K.) to the province living", also became the highest court of appeal for the Kabardian patrimonial vessels where proceedings were conducted on "their ceremonies". Introduction of the Russian legislation for "aziatets" was based on that, "that through this subject colic the rights can bring closer them to knowledge and obedience Russian..." [3, page 743].

However already this legal agency visually showed basic incompatibility of the Russian legal proceedings with traditional legal practice of the North Caucasian people as withdrawal from jurisdiction of intermediary court of affairs of "kro-vomshcheniye" and their reckoning to the category criminal by which they were represented according to the Russian legislation not only prescribed other system of punishments unusual for usual legal mechanisms of regulation of the similar conflicts, but also took away one of its major functions of the defender of the civil rights of community members from court.

Rather eloquently about it business of June 17, 1797 murder of the Mozdok inhabitant of "the novokreshchenny Ossetian Matvei Andreyev", "Tagaurskosh of the county of the village of Lamardon Ossetian Kilich Dioyev", transferred to the Top boundary court by the Mozdok commandant colonel Togano-vy [4, l demonstrates, for example. 37-44]. The court defined a punishment measure: "75 blows, on a forehead and cheeks to put a brand and to banish in eternal exile in the Nerchinsk plants" [4, l. 43], and decided to arrange "execution over this Kilich Dioyev" "on the crime scene in the city of Mozdok on the street beside the house of Ossetian Nikolay Hristoforov that vsyak from living here in Mozdok a different rank from the Asian people a certain attack could see, and through that to pouderzhat from them some from similar crimes or and other crimes, had in the hearts of the fear..." [4, l. 43-43 about.].

Division of the sphere of judicial activity on civil and criminal and the corresponding use in legal proceedings of traditional and state models was applied also in mountain areas where judicial functions in case of criminal trial were assigned to chiefs of military garrisons - "cordon chiefs" [3, by page 748]. However the insufficient awareness of the Russian administrators on features of a social order of the local people and their common law significantly limited possibilities of control and management in this connection it was offered to collect by the commander-in-chief in the Caucasus general A.P. Yermolov who founded "Temporary court" in Kabarda (1822) detailed data on common law of Kabardians [5, page 18].

However soon and affairs of civil character which solution still remained an exclusive prerogative of traditional institutes also turned into maintaining the state instances. Began to operate on such bases created in 1828. The Vladikavkaz foreign court intended for analysis of affairs of the Ossetian and Ingush societies. As it was supposed, it had to function on the basis of uniform rules for all legal agencies of the North Caucasus, in permission of civil cases it was necessary to proceed from establishments of an adat [6, page 84-85].

Work of the Vladikavkaz foreign court had to be carried out by the constant judicial structure created from "the dear owners" and foremen of the mountain societies elected for a period of one year. In some cases trials also participation of "People's Deputies" - representatives of the lowest estates which had, however, only advisory capacity was allowed. To preside in court the Vladikavkaz commandant was appointed. Reorganization in 1831. The Vladikavkaz foreign court in district led to transfer to its conducting also criminal cases [7] at which analysis, as well as civil, it was specified to be guided by the rules stated in "Establishment about provinces" of 1775-1780. This step along with appointment of judges and official registration of judicial powers considerably changed also the nature of the legal proceedings intended for analysis put Ossetians and Ingushs.

However experience with hasty transfer of the judicial and procedural activity which is carried out in the mountain environment to the all-Russian legal framework was extremely bad, having shown, how not adapted to local conditions was the system of nation-wide statutes. Besides, the principles on which activity of new judicial administrative agency was built could not provide it popularity among the population, even despite presence of "People's Deputies". As a result the Vladikavkaz district court of a sample of 1831 turned into the state judicial and administrative institute and became the centralized judicial authority in which all stages of judicial proceedings were brought into accord with the Russian judicial and procedural orders. This circumstance also predetermined a failure of the action for a statement undertaken by the government at mountaineers "strong... civic education" [8] therefore the highest Caucasian administration in five years after introduction of the Vladikavkaz district court was forced to refuse not only this establishment, but also the idea of the transfer of local legal proceedings to the all-Russian legal framework within official judicial and administrative institute. The Russian legislation in relation to mountaineers was repealed, and legal proceedings began to be managed in societies according to usual precepts of law under the supervision of assistants to police officers again.

Already during this initial stage of formation of administrative facilities on Central Caucasus Mountains public prosecutor's supervision quite often merged with management of the local people [9]. The Russian officials had to deal with decisions of the lowest instances accepted on the basis of adats it is not enough or at all to unfamiliar representatives of the Russian administration. This circumstance very complicated check of compliance of the made decision to the situation which was really existing an adat Nome - for this purpose it was necessary to address or the loyal locals expert in common law, or to involve special translators. Some help was rendered by the ancient collections of adats which were available in the Northeast Caucasus (in Dagestan), made during X1-X11 and the 16th centuries by local governors or qadis. After establishment of the Mozdok Top boundary court there were books of "ancient ceremonies" revised by "a national condition after plague" 1807 in which the norms of common law and Sharia at Kabardians and Balkars used as the management for local courts were recorded. The "leaflets" of 1822 announced by A.P. Yermolov to "all Kabardian people" became a source of the "an additional ceremony" which made significant changes both to former practice of legal proceedings, and to legal relationship of various estates of Kabarda and Balkaria. At the same time limits of competence of an adat, Sharia and the Russian legislation were established by "an additional ceremony" [10, page 257-264].

After everything the first codification of the Ossetian adats was made. This work became one of the directions of broader activities for studying life of various Caucasian people initiated by the Minister of Finance Kankrin. Having begun in 1827, collecting data came to the end with the edition in 1836. "Reviews of the Russian possession beyond the Caucasus" in which separate section was submitted by the "description of legal customs of the Ossetians" living behind the Caucasian ridge, made by A. Yanovsky. The originator paid the main attention to criminal law, legal proceedings, the law of succession and the family and marriage relations.

The internal political conditions in the region connected with the developed movement under the leadership of Shamil posed a serious threat to "the Russian business" in all North Caucasus. The real problem of strengthening of administrative positions of the empire demanded improvement of a control system that in turn caused urgent need of more fixed acquaintance with a usual and legal basis of activity of mountain societies. "The plan of the general suppression of the Caucasian tribes which is foreordained by G.I. is based on that main thought that it is possible only by means of gradual mastering all, or the most part of ways what mountaineers to the existence that having constrained them through that in public and their private life to possible degree have now, to compel them to unconditional humility to will of the government", - such is there was a position of the sovereign [11].

The strategy proclaimed the emperor nominated the next social order to the agenda - as it is possible to get acquainted more stoutly and closer as with the usual and legal standard system of the organization of activity of all nationalities inhabiting the North Caucasus and with basic provisions of Sharia used at most of them along with an adat. That is why command of the Caucasian military line at the beginning of the 40th of the 19th century started collecting and record of adats of the Caucasian mountaineers according to uniform and quite wide program which author was a lieutenant colonel Bibikov. In the reports addressed to glavnoupravlyayushchy in the Caucasus he reasoned need of close acquaintance with common law of mountaineers with prematurity and even danger of introduction "between mountaineers of the Russian legalization" as these measures armed local social elite against the Russian power [10, page 87-92]. In December, 1842 the draft of the program for collecting data on common law of the North Caucasian people got approval of the top military commander on the Caucasian line and in Chernomoriya the lieutenant general Gurko, and according to his instruction of March 29, 1843 this work began.

Twelve points of the approved program for collecting data on adats covered various coverages of common law and traditional legal proceedings of mountaineers, but the government the class structure of each of mountain societies and legal relationship between various estates especially interested. Without looking

on extensiveness, the program nevertheless differed in incompleteness: in it such important aspects as the social organization and self-government in mountain societies, the sphere of their political relationship, forms of land tenure and land use, questions of real and liability law, etc. were not affected in any way. In practice at collection of data on usual and legal establishments cases of derogations from the program list of points were frequent, than differences in structure of the collections of adats prepared soon speak.

Polls of "the most honourable old men of all tribes" and also the information provided by the Kabardian temporary court formed a basis for records of adats. Collecting and codification of norms of common law, and also the translation of books of Sharia were charged to the local natives consisting in an officer rank in the Russian army [10, page 93]. Chiefs of managements had to carry out the general leadership in activities for collecting and record of usual precepts of law.

The first systematized collections of adats which gave the richest material on the social relations at some people of the North Caucasus were result of this work. The arch of adats "Kabardians and the tribes adjoining to them (it is small-kartsev also Digors)", made under the leadership of the chief of the center of the Caucasian line major general prince Golitsyn (1844) as this arch in the best way answered the purposes and tasks of the government program for systematization and codification of norms of common law was considered as the most successful. Along with others the place in this collection was taken by the section "Ancient Ceremonies of the Digor Society (Ossetians)". The collection of adats of "the Caucasian mountaineers of the Vladikavkaz district" 1844 made by the captain Nordenstreng included materials on common law of Ossetians and Chechens, but not separation of their adats became an essential lack of the arch that already at that time complicated special studying customs of each of these people.

the collection of 1845 prepared with direct participation of the former judge of Ekaterinodarsky district court army foreman Kucherov working for Severo - Western Caucasus was of Great value. The importance of this first experience of detailed studying adats of the Black Sea Adyghe is caused first of all by the fact that the most part of the population of the region moved to Turkey at the final stage of the Caucasian war, and the collection by Kucherov remained nearly only research of the organization of social life tse - a logo of a number of the West Adyghe people.

The collection of 1843 made under the leadership of the chief of the left flank of the Caucasian line major general Freytaga appeared far beyond the offered program. Records of adats of Chechens and Kumyks are added in it, "for bigger completeness and clarity of a subject" [10, page 57], comments of the originator on the history of management at these people and those changes which happened in their public life under the influence of the ideas of a myuridizm and administrative activity of Shamil. However, despite thoroughness of the conducted research, the collection Freytaga answered a little exclusively practical reasons of the Caucasian leaders and those requirements of the organization of administrative management for the region for the sake of which work on studying life of the Caucasian mountaineers was undertaken, being in fact "an explanatory note to the collection of adats" [10, page 58]. The same remarks, however, are fair also for the collection by Kucherov.

The general arch of the adats of the North Caucasus collected during 1843-1845 was prepared in 1847 at the request of mountain management of the captain of the General Staff Olszewski who used for this purpose not only the previous collections, but also own observations and data received from inquiries of locals which were available at his order especially significant rather common law of mountaineers of the right flank of the Caucasian line from where no data arrived before. Noting in general an undoubted contribution of Olszewski to replenishment of the available materials of rather usual and legal systems of the North Caucasian people, F.I. Leontovich in comments on the known work "Adats of the Caucasian Mountaineers" quite critically estimates its collection as the arch "far does not embrace all material on the basis of which it is made" and "in general differs in synthesis of the detailed rules which are found in collections of adats of certain areas that not always conducts to the right image of essence of an adat" [10, page 64]. Having considered shortcomings of the arch of Olszewski considerable, the Caucasian administration did not accept it as "management" in mountain management, however used Olszewski's program for collecting additional data on the amount of a bridewealth and penalties for various crimes. This work was performed by the commission which is specially created "for analysis of national affairs" founded in Vladikavkaz according to the order of the chief of the district [10, page 109]. As a result there were three more collections (1849) detailing a number of provisions of common law at the Caucasian mountaineers.

The collections of adats made within the 40th of the 19th century found practical application as the management to adoption of judgments in activity of the national courts founded in 1847 and which appeared in each of pristavstvo of the Vladikavkaz military district [1, page 313]. But the Supreme prerogative of pronouncement of the final judgment already officially departed to maintaining the Russian administration acting through police officers and their assistants on places. The affairs seeming to local administrators the most outstanding were transferred to the commandant of Vladikavkaz [12]. Such situation remained up to the end of the 50th when in the North Caucasus the system of pristavstvo was abolished and the district administration under which in borders of the Military-Ossetian district also Ossetia fell is entered.

However, despite scale of the done work on collecting and codification of common law of mountaineers, it could not satisfy to the imminent requirements of reforming of all control system of the North Caucasus which became obvious after final "conciliation" of the region the general trends of social and economic development of the Russian society which is on the threshold of considerable transformations.

Incompleteness of the available data on the rights and duties of various social categories of the North Caucasian societies forced to return to collecting and record of their usual precepts of law during preparation of a peasant and land reform in the North Caucasus in the first half of the 60th of the 19th century again. Other motive for which it was represented necessary again to address similar activity, judicial and administrative reforms which carrying out in mountain areas of the North Caucasus the government started after the end of the Caucasian war were. Played a role as well the fact that deep knowledge of common law of mountaineers would give to the government strategic advantages in political and ideological opposition with the Muslim clergy always representing a serious hindrance in edge "pacification". Collections of adats of the end 50 - the beginnings of the 60th intended already as the official management for mountain vessels at trial of affairs on an adat and Sharia.

The Caucasian administration widely made use of the accumulated experience of systematization of folk legal customs. At the end of 50 - the beginning of the 60th there were arches of adats of the people living in Tersky and Dagestan areas; among them - two collections of the Military-Ossetian district (1859, 1865-1866) and three collections by Nagorny (1864), Ingush (1864-1865) and the Kumyk (1865) districts. The data presented to them gathered under the leadership of district chiefs on the basis of the uniform program in which main place was allocated to the criminal law and legal proceedings applied in traditional legal proceedings. As materials to the arches "the examples which were already in court", the testimony of deputies of district courts and "old men, expert on this" served [10, page 70]. Collecting data on common law of mountaineers, authors of collections noted the complexity of the work caused by intrinsic features of a traditional legal system: plurality and situational variability of adatny norms, their oral broadcasting, etc. [10, page 68]. Already in the late sixties collections of adats formed the basis for analysis of affairs in national vessels and on people's assemblies in societies in appropriate cases of judicial proceedings.

Systematizing and codifying usual and legal establishments of the Caucasian mountaineers in the 40-60th of the 19th century, the Russian authorities were meant gradually to adapt norms of common law for laws of the Russian Empire, working at the same time quite in the spirit of regionalism. On the other hand, mutual adaptation of standard systems, various by the social nature, threatened to drag on, and quite objective time factor interfering with government plans for "final conquest" of the Caucasus became an obvious hindrance in aspiration to fastest "russification" of edge.

The initiative of the chief of the Military-Ossetian district of the colonel is especially indicative example of such forced "adaptation"

Moussa Kundukhov on cancellation of "harmful" folk customs at Ossetians and replacement their new, carried out "from the general national consent" on "the general greatest national collecting" [13, page 55]. Having started so responsible action, Kundukhov referred to discrepancy of former adats with "spirit of the present", defining them "burdensome and ruining house welfare" [13, page 56]. The new rules introduced by Kundukhov were given a shape of legal custom and legitimated by the decision of people's assembly on an image of the maslagatny agreement. However to give to innovations documentary character and legislative force, signatures of national representatives, the statement of the administration and the announced sanction for non-execution in the form of quite large fine in 100 rubles were required by silver. "The national resolution" was fixed by the corresponding circular of the chief of the district; control of execution of "the national decision" was imposed on the "foremen" obliged to report to the administration on all cases of violation of a new order [13, page 61-62].

New resolutions concerned generally criminal scope of adats. So, the krovomshcheniye was strictly forbidden, the difference between manslaughter (including murder by negligence) and deliberate was carried out. In the first case after preliminary "lawful" trial the guilty person had to be punished according to the Russian legislation, in the second - the measure of punishment was defined by national court (mediators). Thus were differentiated civil and criminal responsibility which in both cases according to common law was defined by the uniform system of punishments with her main idea of compensation of the caused damage. The amendments introduced in judicial legal proceedings essentially changed not only an order of traditional legal proceedings, but also social functions of intermediary court. The principle of objective responsibility was cancelled as appeared "senseless" and the cleaning oath - in case of procedural need it was replaced with the oath, "the established religion and approved by the law of the government" [13, page 58]. Were revised as well some private aspects of the civil relations concerning the levirat, marriage repayment, the law of succession, funeral expenses. Practice of change of adatny norms in general is characteristic of common law of the people of the North Caucasus, one of sources of which are decisions of people's assemblies. But in this case the legal innovation is interwoven into the existing standard system and gains a binding character owing to rule-making function of the public power realized by its main institute - people's assembly. Control of respect for new legal custom laid down on the senior members in family - related collectives which authority became the guarantor of his execution; the sanction for violation of legal custom was defined by mediators. However strong-willed administration of government officials artificially withdrew rule-making aspect from the most important imperious and administrative prerogatives of the traditional power, cutting down powers of people's assembly and removing functions of control out of limits of the family and related union and territorial community in general.

The end of the 50th was marked by the concrete steps of the government directed to unification and formalization of legal proceedings at the people inhabiting the Left wing of the Caucasian line. The administrative-territorial transformations of 1858 made by A.I. Baryatinsky on the Caucasian line for streamlining of structure of military and national management [14] caused also the reorganization of destinies but-management systems directed mainly to unification of legal proceedings and expansion of executive prerogatives of district chiefs [1, page 237-238]. Instead of the national vessels operating before in each of subordinated to the Vladikavkaz commandant of pristavstvo the district national court was established; assistants to the district chief on sites were granted the right of judicial proceedings and removal of the final decision apropos of "only not polysyllabic verbal complaints". The verbal trial made by the local assistant was required to be recorded in the special magazine for introduction "uniform in all local managements" course of action [1, page 237; 15] The court of appeal in these cases was the chief of the district.

As a result of legal proceedings reorganization the usual and legal basis of legal proceedings formally remained, but qualitatively changed according to the interests of administration: so, at removal of sentences for the offenses demanding "on a folk custom" imposing of the penalties (transferred at the same time to sums of money - up to 15 rubles by silver) the presence of three foremen possessing, however, only an advisory vote admitted necessary. The verbal complaint which was satisfied by the large sum of a penalty, understood already district national court according to orders of the district administration [1, page 238].

Standardization of management in various areas of the region demanded also corresponding changes in the sou-debno-procedural sphere. Reform of the judicial system of 1864 laid the foundation for the further consistently directed activity of the government on every possible formalization and bureaucratization of local legal proceedings [1, page 313] of which changes the idea of unification of judicial establishments for the civilian, military and mountain population of the North Caucasus was the cornerstone.

Literature

1. Materials on stories of the Ossetian people: sb. dock. on the history of gaining Ossetians the Russian tsarism / sost. V.S. Galtsev. Ordzhonikidze, 1942. T. 2.
2. P.G. Butkov. Materials for a modern history of the Caucasus from 1722 to 1803: in 3 h SPb., 1869. Part 2. Page 265.
3. The acts collected by the Caucasian arkheografichesky commission. Tiflis, 1866-1904 (further - AKAK). T. 1.
4. RSO-A central state archive. T. 244. Op. 1. 595.
5. V.K. Gardanov. Common law as a source for studying the social relations at the people of the North Caucasus in XVIII - the beginning of the 19th centuries//the Soviet ethnography. 1960. No. 5.
6. Z.M. Bliyeva. A control system in the North Caucasus at the end of XVIII - the first third of the 19th century. Vladikavkaz, 1992.
7. AKAK. T. VII. Page 373-374.
8. In the same place. T. VIII. Page 831.

Came to edition

9. I.V. Zozulya. The history of development of the judicial system in the North Caucasus in the second half of XIX - the beginning of the 20th century: avtoref. yew.... edging. east. sciences. Stavropol, 1999.
10. F.I. Leontovich. Adats of the Caucasian mountaineers. Odessa, 1882-1883. Issue 1.
11. AKAK. T. IX. Page 244.
12. Laurels. Notes about Ossetia and Ossetians: sb. materials for the description of areas and tribes of the Caucasus. Tiflis, 1883. T. 3. Page 292.
13. F.I. Leontovich. Decree. soch. Issue 2.
14. AKAK. T. XII. Page 1287-1290, 1277.
15. Department of hand-written funds of the North Ossetian institute of humanitarian and social researches. T. 5. Op. 1. 1. L. 11-12.

On February 28, 2008

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