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§ 2. Evolution of a common law at the North Caucasian people

Research of the problematics declared in the given part dissertatsiyoonnogo of research, it is necessary to begin with the analysis of problems of an origin (etyonogeneza) the Caucasian people. Many questions have not received till now the definitive permission in legal anthropology.

After the Mongolian invasion many people occupying region - half-sheep, alany disappear from a historical card, many of which leave in mountains where process of their symbiosis with local residents begins; so formiyorujutsja the modern people of the North Caucasus. In etnogeneze the Ossetin priniyomajut participation, as aboriginals of mountain gorges, and alany. In proisyohozhdenii karachaevtsev and balkartsev the Caucasian tribes, tjurkojazychnye Bulgarians, half-sheep, and also alany took part. The Nogajsky ethnos has resulted from mixture of the Mongolian tribes and polovtsev. Mountain tribes of the Caucasian language family took part In formation of vajyonahov-Ingushs and Chechens. And newcomers have not influenced formation of the people of the Dagestan branch of the Caucasian language family. The Adygsky people - sovreyomennye Adighes, Circassians, Kabardians - were generated from various koyorennyh the tribes occupying the Western caucasus (zihov, kasogov, kerketov, etc.), speaking on languages of the Caucasian language family.

By consideration of questions about an origin of the people the science considers not only linguistic given, but also received as a result of excavation svedeyonija about material culture, settlements, dwellings, types of burials and t.p [27].

Genesis and development of a common law of the people of caucasus is defined obyoshchim by a course of social and economic, politiko-legal development and otyorazhaet in itself original public relations.

The material resources under a common law are the important source for the characteristic not only socioeconomic and political otyonosheny of the various people since the most ancient times, but also for the decision proyoblemy development of the right of these people today.

Having analysed the given phenomenon, it is possible to allocate, first of all, glubokosotsialnuju a basis of this regulator of public relations, and, further, to designate the mechanism of maintenance of action of customs in a kind obshchestyovennogo opinions owing to what it is received quite corresponding juriyo
dicheskim, to ethnographic and anthropological dogmas a picture pojavleyonija, existence and custom realisations in a society and the state.

The basic gathering of empirical data adatnogo was right Caucasian naroyodov is made in the end of XVIII-XIX century In 1876 at branch EtnograYofii of Russian Geographical society was the special commission with tseyolju drawing up of the new program for collecting of juridical customs, isyopolzuja all earlier published programs on this question is created. Almost in 10 years, in 1889, this program the commission of collecting national juridicheyoskih customs has published.

The big attention in the program has been given collecting of customs and customs of Russian "foreigners". Such necessity has arisen, as the pre-revolutionary researcher of a life of North Caucasian mountaineers F.I marked. Leon - tovich [28], «... In view of doubtless importance of usually-legal materials on such question a little developed at us, as inorodcheskoe the right juzhnoyorusskih suburbs».

Researchers of a common law showed the big interest to the North Caucasus because it was as though reserve various narodnoyostej, each of which vein on the customs.

As academician V.F.Miller wrote, «there is no other district on globe where on rather neyobolshom space such weight raznoplemennyh and raznojazychyonyh the people would flock. If possibility to solve though neyobolshoe number of the confused questions on a nationality of the different people, nekoyogda replacing each other in ancient and the Middle Ages in necessary plains of southern Russia, only under a condition of studying of ethnography of caucasus» is sometime expected.

Researches about a life and customs of the people of caucasus of known scientists sereyodiny XIX centuries Ljule, Karlgofa, the Steel, Dubrovin, V.F.Millera, M.M.KovaYolevskogo, F.I.Leontovicha and others have brought the huge contribution not only in rusyoskuju, but also in a world science. Possessing versatile erudition these scientists
Could compare customs of North Caucasian mountaineers to a life of the West European people in primitive-communal system and origin decomposition proyotogosudarstva. Researches specified already us are especially interesting in this respect to M.M.Kovalevskogo and F.I.Leontovicha. Studying customs of mountaineers KavkaYOza, they have drawn a conclusion on continuity in these customs of separate norms drevyonegermanskogo and Russian common law. F.I.Leontovich specified, that they «quite often entirely remind many institutes of the right, institutes about what ancient historians and bytopisateli speak still Slavs and Germen and what soyohranilis, for example, in« to the Russian truth... ».

It is necessary to underline, that interest to adats of the Caucasian mountaineers was vyyozvan not only the research purposes. Mountaineers Northern KavYOkaza in 40th of XIX century led fierce struggle against Russian tsarism for national independence; the knowledge of customs and customs, undoubtedly, helped to operate the subdued people [29].

To constitute data on customs of the Caucasian mountaineers have charged to high-ranking officials who should direct them to main thing office nayomestnika for the purpose of ordering and improvement. Thus records of adats balkar and karachaevtsev the chief of the centre kavyokazskoj lines major general Golitsinym in 1844, a civil life of Chechens and kumykov - count Golenischev and the prince Lobanovym - Rostov have been made. Data on adats of North Caucasian mountaineers have been stated in the report for 1857-1859 of the general field marshal of the prince Barjatinsky. VposledYOstvii these materials were used by professor F.I.Leontovich at a writing of "Adats of the Caucasian mountaineers» [30].

It is necessary to notice, that collecting of adats of the Caucasian mountaineers was deyolom difficult. The commander-in-chief armies of the Caucasian line general

Lieutenant Gurko in the message the major general Olshevsky wrote: «VaYOshemu the excellency knows, that on present time we have only superficial and not so not certain data on analysis of affairs of mountaineers on their customs and laws. This subject in spite of the fact that on its importance it dolyozhen to be business paramount at internal management of mountaineers, osyotaetsja till now for us almost unknown because and at mountaineers prayovila which they adhered at trial, and their ancient customs on which has put dare, are known for it only under only one remained legends». And still thanks to available data there was a possibility to track development of a common law of the Caucasian people.

Considerable influence on development of a common law of Caucasians has rendered also religious sinkretizm in thinking vajnahov. In 2nd half XIX - nayochale XX century scientists and researchers of caucasus have fixed the facts of pagan mythology, have shown change of religions and their struggle. The pagan period at vajnayohov proceeded not one millenium. JAzychestvo vajnahov, since toteyomisticheskih and animisticheskih representations, has reached stages of the developed polytheism. In due course there was a tendency to transformation jazychestva vajnahov in monoteisticheskuju religion, and also concept about the main thing on the functions the god who was called Djala. Further this name became naritsayotelnym and designated simply "god". And presently instead of a word "Allah" use a pagan word "djala" - the god is much more often.

On territory of the North Caucasus the beginning actively to get into the Middle Ages Christianity from Georgia (IV century, VIII century, the beginning XIII and XVII centuries) and Russia (XVIII-XIX centuries). That fact, that the Christianity was wide rasyoprostraneno among Ingushs, proves to be true that in mountain Ingushetia some temples have been concentrated: Thaba-Erdy, Albi-Erdy and Targim - sky. Principal causes of that the new religion was not fixed among mountaineers, were sufficient stability of pagan beliefs and prekrayo
shchenie missionary activity of Georgia because of mongolo-tatar nasheyostvija to caucasus [31].

So, common law occurrence in a society was caused opyoredelennymi by social and economic and cultural preconditions.

There are every possible theories of occurrence usually-rules of law which are reduced to definition of presence or absence of a predominating role of the state in the course of origin of a legal regulator in a society. Representatives of the first direction connect occurrence of a common law with the period of disintegration of a primitive system and state formation. It, in particular, such visible Russian scientists pre-revolutionary peyorioda as N.M.Korkunov, G.F.Shershenevich, etc. Now this theory proyodolzhajut to develop V.P.Alekseev, A.I.per's Russian scientists-ethnographers shits, scientists-lawyers A.B.Vengerov, S.S.Alexey and others.

Adherents of the second direction consider as the most adequate hayorakteristikoj reguljativnoj systems of primitiveness a common law which they consider as the independent historical type of law. As a synonym of a definition "common law" the term «the archaic right» acts. It underlines its difference from the modern right. The given approach forms a number of independent concepts which are developed rosyosijskie by scientists D.ZH.Valeev, JU.I.Simeon, A.I.Kovler, and also zarubezhyonye - N.Rulan, R.Pento and others.

Does not cause doubts interrelation of the state and the right. Nevertheless, the given phenomenon which is found out in the modern validity, not ozyonachaet, that is right could not to arise before state occurrence, poyotomu that already dogosudarstvennom a society there was developed enough noryomativnaja a system of regulation of usually-legal character, and the state nayo
There were only adequate forms of fastening and right interpretation in intereyosah dominating forces [32].

In connection with indissoluble communication of the legal maintenance and the legal form it is possible to formulate two values of a definition "common law": in not legal sense - "protoright" and in purely legal - «legal custom». It gives the basis to believe, that common law genesis nachinayoetsja from usual norm which at a certain stage public razviyotija becomes the indicator of vital social situations, operates concerning those who will fall under its maintenance, and that vposledyostvii it passes in the category of norms of a positive law.

Developed enough and system description of mechanisms sanktsioniyorovanija a common law is presented G.G.Nebratenko, E.I.Kuksenko and S.V.horn. They fairly specify on two basic forms of influence of the state in a common law: positive and negative authorisation [33].

It is necessary to carry to positive authorisation (recognition) dostayotochno widespread reservations in the official certificates turned to those or other questions of the state, military or civil life naroyodov, "permitting" to solve this or that problem under local customs, or on since olden days existing order, etc.

Negative authorisation assumed the greatest possible narrowing (or a full interdiction) spheres of action of a common law. It is possible to carry fastening of a duty of Army office to such examples «coming under affairs to make and solve on the basis of legalisations of Vserosyosijsky empire».

Under V.V. Makeeva's statement, the common law representing set of customs, the rules of the behaviour which has developed in household relations authorised or found the state protection, played soyovmestno with norms of morals, religious norms and traditions the leading part in regulation of public relations.

The common law as the empirical base shows, was the higher establishment, more important, than orders and instructions army nachalniyokov and even general laws of the Russian state.

To distinguish the conventional rule and to establish its maintenance, it is necessary to allocate internal forms of a common law which it is possible nazyyovat in the ways of expression of conventional rules. They are classified on 2 groups: ways of expression of conventional rules in the form of certificates of independent will of participants of civil-law relations and judicial ways. The first group includes public, or national, forms of expression of conventional rules, in particular, legends, proverbs, sayings. More znachiyomym within the given group it is necessary to name way the contract, especially approximate treaty provisions which can be applied in quality pravoyovyh customs, and also the arches of the unified customs and rules.

As one of the earliest forms collecting and fixation of these norms in hand-written legal sources acts. The most ancient concern them payomjatniki the rights in India, Greece, France, Germany, Ancient Russia and SeverYOnogo caucasus. As it is mentioned by the modern researchers, all these goyosudarstva transformed a common law to laws. The given process proyodolzhaetsja and now, mainly, in international law and in the states of traditional legal system. As marks E.V.KolesniYokov, process of development of the imperative rule having the official
Value, «went, thus, under the scheme - from repeating, steady practice... Through legal custom to legislative norm» [34].

The given kind of authorisation has a right tendency as law to replace with itself custom. Replacement of customs it is state-rules of law can to occur differently. In one cases it is custom authorisation when the rule remains former, but becomes legal, in druyogih - it is state-rule of law, replacing custom, brings some specifications (not changing an essence and the custom maintenance) thanks to which konyokretnoe the rule becomes more accurate. One more variant when the rule of law arises as synthesis of several customs. Hence, posledovayotelnaja replacement of customs transforms them into a positive law [35].

It is possible to name the following form of the state authorisation of custom sending to it in the law. Today it is most rasprostranyonyonym a kind of giving to norm of state-legal character. Big znayochenie has that at such sanction the custom turns to an element natsioyonalnogo the rights, not losing thus the character. It is necessary to tell, that for this form of authorisation following lines are characteristic: it can noyosit enough general character when in constitutions of the states there is a reference to custom as the source of law; when in special normative acts there is a permission of the legislator to be guided in defined pravootnoyoshenijah local customs and when the provisional rule supposes isyopolzovat legal customs in those cases if there is no corresponding legislation, i.e. The custom has subsidiary character [36].

It is necessary to notice, that the state, along with authorisation of conventional rules, if necessary and in case of expediency have the right to give protection to the customs which are out of the jural sphere. Then
The custom turns to the law and its application is provided sootvetstyovujushchej with the sanction.

It is necessary to underline, that one of the basic forms sanktsionirovayonija custom is the judgement. When vessels sistemayoticheski apply this or that conventional rule, it turns to the authorised custom. In certain historical conditions juridiyocheskaja practice leads to formation of original judicial customs.

At times for application of conventional rules obligatory direct sending to them of the law is not required. Action of conventional rules occurs and from "tacit consent" of the legislator. Attempt of the same statement sdeyolali N.I.Razumovich, E.V.Kolesnikov, D.Z.Valeev1.

It is necessary to notice, that the further genesis of the state has narrowed sanktsioyonirujushchuju a role of vessels or it has eliminated. It speaks that, in - the first, the states do not apply such source of law as the legal custom. Secondly, on a validity regulatory legal acts he admits the higher the full source of law. Or, thirdly, doyopuskajutsja references to a common law in the current legislation. SleYOdovatelno, it is possible to tell, that the custom applied by court, already is the authorised state.

It is necessary to pay attention also that the question about judicial sanktsioyonirovanii usual norms is treated ambiguously. For example, and other scientists consider G.F.Sher-shenevich, S.Golunsky, S.S.Alexey, that it is one of kinds of the state authorisation. The same scientists as Re - gelsberger, G.Kelzen, D.ZH.Valeev and others, do not recognise this approach and consider, that it is impossible to consider the sanction the custom state as priyoznak, transforming nejuridichesky in the rule of law and «molchaliyovoe the consent» the legislator - as the state sanction. Therefore pervona - [37 [38]
chalnaja activity of vessels of a common law is incorrectly ranked to go - sudarstvennoj [39].

We, saying about genesis of a common law at the Caucasian people, slopes poyolagat, that custom, a common law (further, sometimes the adat) has arisen paralyolelno with the early state, either the protostate, or the state formation - in one cases hardly earlier, and hardly later in other cases.

Having arisen in a primitive society on stages of its decomposition, a common law gradually found lines of fixed assets social regulirovayonija property relations. In the beginning structurally unstable and weak early states leant against traditional forms of the power - leaders obyoshchin which followed a common law and habitual conservative zhizyonennomu to way. In the early states there was no developed state legislature, in modern understanding representing the device, able to create rules of law. The power mainly leant on standard ustanovyolenija a common law. Attachment to the customs as the general line drevyonih the people served as the precondition of high prestige of a common law.

It is necessary to notice, that formation of new legal forms has coincided with significant cultural-historical processes. Occurrence of writing and distribution of world religions concern them on VostoYOke. There is a point of view, according to which needs of a legal turn in opyoredelennoj degrees could push the most developed cultures to izoyobreteniju writing systems.

Ancient written sources frequently were called as laws. OdnaYOko writing occurrence has entailed not at once occurrence zakonodatelyonogo the rights. The legal custom became the first hand-written source of law. The majority, so-called laws rannegosudarstvennogo societies javyoljajutsja anything other, as the collections of customs expressing ideals ustyo
rojstva the first states, the obligation of tsars, attempt of restriction of growth of riches, etc.

It is necessary to notice, that the most ancient collections of the Caucasian adats concern East caucasus - to Dagestan. According to F.I.Leontovicha, «from drevnejyoshih collections of the Dagestan adats to us four monuments are known now: 1) the Collection of adats of the Avarian people, constituted in XI century (hidzhry) the Lobster-khan (the Umma-khan) Avarian; 2) the Collection of adats Kajtaha, XII century (hidyozhry. - I.G.), constituted local utsmiem the Rustem-khan; 3) the Collection kajtag - skih adats, XVI century constituted kajtagskim utsmiem by Ahmet, the son utsmija Gasan-Ali; 4)« the Kabardian National condition. In cancellation of former customs of 1807 », accepted national vechem Kabardians« Adyge Hase »[40].

As the general name of folk customs at the Caucasian mountaineers as it was spoken above, the term "adat" of the Arabian origin, primeyonjajushchijsja in the Muslim countries acts. For the people of caucasus are available also local nayozvanija custom. For example, in the Chechen Republic it is called "edil", in Ossetia - "ardau". Causes interest that fact, that Osset ardau occurs from the same about - an Aryan root, as Latin "ogjo" or Old Russian "number" and means an order. In old Russian monuments "number" meant "custom".

It is necessary to notice, that the Caucasian mountaineers used the term "adat" in different senses. So, in «Meeting of Kabardian ancient ceremonies» prince Golitsyn of 1844 adats were understood «as ancient customs with which all national affairs» coped. The Same value was given to an adat in collections of customs of Circassians, kumykov, the Ossetin and other Caucasian people. But for us special value has understanding of an adat as «vessels on customs or ceremonies» which on boundary XVIII-XIX was contrasted centuries not only to Sheriyat, but also the Russian law. In it the analogy with drevneyorusskoj the Truth in value of legal customs of court («court under the truth», «pojyoti to the truth») and with the medieval barbarous "truths" which had is visible
Usually-legal nature which were managements for vessels, that is codes of laws.

In historical sources it is possible to find interesting data about proyoishozhdenii an adat and the form of its formation and development. The world court of intermediaries (mediayotorov) prevailed such spoyosob formations of adats, as tretejstvo, or. All mountain people court of intermediaries named verbal primiriyotelnoe trial under the voluntary consent of arguing persons through izyobiraemyh judges of intermediaries. New customs entered thus: Not nahoyodja in an adat of establishments on new cases, court of intermediaries «should proizyonosit decisions still unknown, though and applied to the general spirit of an adat». For decisions such usually invited the people expert in folk customs, and old men at whom in memory the cases similar to the assorted could remain. The decision enacted thus, has received the name "maslagat". Repeating further in other similar cases, maslagat adjoined weight of folk customs, turning in an adat.

It is necessary to tell, that the importance maslagata as primary form obrazoyovanija adats is observed almost in all mountain customs. For example, at oseyotin a special role played tarhan («court the auction»), representing court of intermediaries which established agreements of lawsuit (minaear) on spoyoram or to collisions of sorts and members of sorts. On this court affairs on an adat, and in case of absence of a suitable adat - «on blagousmotreniju» dared. After a while the decision tarhana became a local adat. The Oseyotinsky term "tarh" is equivalent to the Russian term "auction". Similarity tarhana with Old Russian institute of court in a kind zaklicha at the auction which was considered as though as the first stage of litigation is obvious. Its sense consisted that in crowded a place in the presence of witnesses appeared about an event an offence. Usually zaklich used as the first stage vindikatsionnogo the claim, if the stolen thing nahodiyolas. The adat, developing from maslagata and finding in it competent podderzhyoku, was transformed also with the help maslagata communities and sorts on the world
skih shodkah. As well as an Old Russian number, maslagat established the cores nayochala the common law, regulating various relations which have been connected with the property right to ground grounds, a personal estate, with execution of contracts, etc.

The information on that formation of conventional rules occurred in practice of the arbitration courts, is as well in Roman Law sources: koyogda there was a dispute on any legal question, the parties concluded among themselves the contract.

From the told the conclusion that formation process obychyonogo the rights have been closely connected with activity of judicial tribunals follows. Besides there are historical acknowledgement of that fact, what not a common law as that, namely judgements were more ancient istochniyokami the rights. As G.S.Men studying various sources and instiyotuty of the ancient right considers, including and Ancient Greek, the earliest ponjatijayomi, connected with idea of the right, were, so-called, femidy, i.e. «vnuyoshennye over the decision of quarrels at law the head of a tribe or others avtoyoritetnymi the persons saying the right to each separate case». In a common law of the people of the North Caucasus and based on it sudoproizyovodstve was much in common. It is connected by that they had one source - a patrimonial system. Therefore that fact, as court is natural, and sisyotema compositions had identical attributes and practice [41].

The resulted examples from historical researches testify that legal customs were gradually developed in intermediary vessels or on communal descents. There after long discussions the oldest or most authoritative members of a community gave the decision of each case which in force «the general law prisposobljaemosti» became the sample for the subsequent, similar to the first the decisions. Means, the legal custom is
"femida" as marked G.S.Men, however "femida" generalised, formirujuyoshchajasja on the basis of concrete decisions which are developed by the arbitration court or the whole meeting or vechem an independent community.

Also it is necessary to consider precedent as the most ancient form of the right, and obychyonoe the right represents not that other, as «plural precedent». G.S.Men wrote in work under the right encyclopaedia: «Really, clearly, that all legal rules carried to custom, originally have developed not puyotem custom, and by precedent: so-called juridical customs vozyonikali concerning single instances; the rule which has arisen thus zayotem was applied to a number of homogeneous cases and became custom». BolYOshinstvo the major rules of law it was created thus.

It is necessary to notice, that a number of experts in the field of theory of law considers, that all process pravoobrazovanija can be reduced conditionally to three basic stages. In the beginning separate cases, ways of the decision are allocated, i.e. kayozusy which already steels or only become typical. Generalisation tiyopichnogo, its transformation into tradition which passes from father to son, fixed in custom. Finishes process the law - as result normotvorcheskoj (authorising) activity of the state.

The common law was reflected also in certificates of the Caucasian governors and doyogovorah between auls and villages inside. Contractual decisions were considered istochyonikami the rights as not only were based on application already izvestnoyogo the rights, but also established new rules of law. The great value doyogovorov in the ancient right the dough is connected with absence of legislature in modern understanding. When relations have not been settled obychayoem, it was not clear or there was a desire to recede from it. Then stoyorony made out the relations the contract and by that created the new
The right. This ancient value of the source of law dogovory have kept and in sovreyomennyh the international relations [42].

The common law turned into the different periods of the Caucasian history on seyobja attention of the legislator.

Thus, sources of a common law (adat) Caucasian naroyodov were: the arbitration court; the agreement of lawsuit (maslagat) - is frequent stayonovilos in the subsequent norm of an adat; judicial-legal practice feoyodalnyh governors, certificates of khans; dogovory between villages and villages inside; reyoshenija public assemblies (rural descents), etc.

Within the limits of one state can simultaneously exist neyoskolko legal cultures. Especially it is characteristic for mnogonatsionalyonyh and multirelioznyh societies. So, in Russia there are Russian, muyosulmanskaja, elements Gipsy and some other ethnic obshchnoyostej. Thus it is possible to speak about legal culture as to a generality (obshchestyova) as a whole, and legal culture of the separate person (individual).

The common law was generated in public consciousness before all other forms of the right since customs and traditions which constitute a basis etoyogo the rights, have appeared at a transitive stage from primitive-communal organizayotsii societies to state as result of authorisation sushchestyovujushchih obyknoveny arising structures of the power. Having fixed in public consciousness as the steady form of behaviour and dejstyovy people, customs and traditions preceded in history of development of a society to other sources of law. In early state-organizational societies the legal custom occupied leading position.

For example, in Ancient Rome from legal customs were created vazhnejyoshie branches and right institutes. Ancient laws (for example, laws of XII Tables, Laws of the Dragon in Athenes VII century BC) were not the certificate normoyotvorchestva, and only record of customs. In feudal Europe customs otnosiyo
lis to the basic sources of law up to XVI century In the North Caucasus throughout many centuries customs (adats) provided legal and nravstyovennye relations of mountaineers in a community and out of it, being transferred as an oral common law from generation to generation in region.

On problems of a periodization of legal systems in a science different approaches take place. For a basis of the theories scientists take ideological, etyonicheskie, religious, cultural-historical and other signs of the right. In a science "jurisprudence" has developed two basic approaches to a periodization of legal systems: Marxist (formatsionnyj) both cultural-historical (tsivilizatsionnyj). And those and other approaches are investigated enough by kolleyogami-lawyers. Among representatives tsivilizatsionnogo the approach in sovreyomennoj to domestic jurisprudence it is necessary to name V.N.Sinjukova who in 1990th has offered the cultural-historical approach. The given approach assumed to attach priority significance to criteria and the factors reflecting cultural-historical features of legal system and differentsirovannost of periodizations of the state and the right, its consideration as independent cultural phenomenon, independent from ekonomicheyoskih, political relations and their development not reduced to phases. With this theory many do not agree (for example, Sagidov A.M.) because of a close connection of history of development of legal system with history of development of the state. gosuyodarstvo and the right are the co-operating substances having the general communications, the bases and an origin. The society legal system sklayodyvaetsja also develops under the influence of a complex of objective factors: economic, political, spiritual, welfare and so forth it is not represented proved to recognise one of them as the basic, opredeyoljajushchy. Thereof, defining stages of development of legal system obyoshchestva, it is necessary to consider different approaches and criteria. In particular, nekotoyorye authors-dagestanovedy, taking into account "state" and sotsiokulturnogo measurements, chronologically divide a periodization of development of legal system DageYOstana into three basic stages: 1) the pre-revolutionary period, vkljuchavyo
shy: the ancient period, that is since time of creation for territories DagestaYOna in IV century BC the first state the Caucasian Albania to rasprostraneyonija here since X century of Moslem doctrine; the period mixed legal sisyotemy, generated under the influence of a common law of the Dagestan people and the Moslem law (X - the beginning of XIX century); legal system goyosudarstva Imamat (1825-1859); legal system of the Dagestan area of Russian empire (1860-1917); 2) the Soviet period (since 1917 up to the end 1980th); 3) the modern period (from the beginning of 1990th) [43].

Sources of occurrence, application and the further development of legal custom are expedient for considering from the point of view of its historical geneyozisa. Representatives of anthropological and ethnographic school of the right adhere to such position, in particular, D.ZH.Valeev, O.A.Puchkov, P.I.Semenov, etc. the Combination of two methods - is social-anthropological, koyotoryj is applied at research of the general laws of development cheyolovechestva, and ethnographic, allowing to study concrete history of the separate people, their origin, customs, traditions, moral noryomy, - development of legal custom will help us to track religion, opirayojas on studying is direct its maintenances.

Using an anthropological method of studying of the general laws of development of a human society, we, focusing the attention to customs of the North Caucasian people, are inclined to allocate following stages of development of a common law:

- Occurrence and formation of a collective community - at the given stage simultaneously with process of self-identification of the person arise the new public relations connected with collective interests of a primitive-communal society: power and management relations, tabuitet, the property relations regulated usually by-rules of law.

- Occurrence of specialised judicial tribunal in the form of SoYOveta the elders, caused of written fixing of conventional rules;

- Isolation of a sort and creation of patrimonial authorities that became peryovichnoj the precondition of class stratification of a society, promoted poyojavleniju the social norms protecting interests of a ruling clique and ozyonamenovavshih partial transformation of conventional rules in the law. EsYOli in rodoplemennom a system the right fixed krovnorodstvennye relations in the early states the right fixed, basically, relations territoyorialnogo memberships and an accessory to certain estate. In connection with complication of social structure change of the form of the right owing to what the custom is replaced with the legislation - the dominating form of the right rannegosudarstvennogo societies (together with judicial pretseyodentami) is necessary also. Whereas the right maintenance - equivalence and formal rayovenstvo remains invariable;

- Occurrence of the state and its special bodies that has caused modernisation of all control system by a society and transition on more proyogressivnye right forms. Local customs usually have been kept only in the event that owing to a certain regrouping they received geoyograficheski wider scope and if the compilation allowing easily with them to familiarise has been executed. Even if sozdavayolis large compilations of a common law, they could not apply for all-round regulation of public relations. Varying zhizyonennye conditions forced to reject compilers particulars of local value, to depart from kazualnogo character of compositions and to aspire to univeryosalizmu rules of law;

- The statement of the modern state with the developed system of governing bodies and a positive law priority over legal obyyochajami. The basis for application usually-rules of law quite often stanoyovilos authorisation by the state. However norms of legal custom
Still were a social regulator in those societies where was soyohranen communal way (country, ethnic, etc.). Owing to sankyotsionirovanija occurred some kind of ordering of customs, re babble - rujushchih certain spheres of relations [44].

The origin of a common law of the people of the North Caucasus concerns a preliterate epoch and can be hypothetically reconstructed only by means of a retrospective method.

Fractional information on customs, including protolegal, have appeared at antique authors at the description of the most ancient people of the North Caucasus and Skifii, participating in etnogeneze medieval tribes. Same fragyomentarnye data about usually-rules of law of the people of the North Caucasus have appeared in the Middle Ages - in XIV-XV centuries. And sistematizirovanyonye records of adats of the European and Russian authors - in XVIII-XIX centuries: they have fixed the legal relations which have developed for the given period. The first attempts of generalisation of a material under a common law of the North Caucasian people should be carried to XIX century [45].

From the point of view of some authors, To XVI-XVII centuries on Northern KavYOkaze the Caucasian mountain (North Caucasian) civilisation [46] was generated. For the Caucasian mountain civilisation are characteristic polietnichnost, religiozyonyj sinkretizm (synthesis local jazychestva with elements of Christianity and different currents of Islam); a combination of high mountains, foothills and plains,
Defining interrelation terrasnogo agriculture, Alpine skotovodstyova and naezdnichestva; the psychological lines fixed in original ethical mountain codes, prevalence not state, but not dogosu - donative, self-organising forms.

In XVI-XVII centuries the North Caucasian people passed from a stage «voenyonoj democracies» to vozhdestvu, to occurrence of bodies of public authority and genesis of a common law, legal dualism on the basis of norms of an adat and Sheriyat.

Hence, all history sotsionormativnoj cultures, including a common law of the North Caucasus, correctness of a conclusion of A.I.Prershitsa and J.S.Smirnovoj according to which the legal pluralism in the North Caucasus existed «throughout all accessible istoriyocheskoj time reconstruction» proves to be true.

It is necessary to underline also, that the further development sotsionormativ - ache cultures of the North Caucasian region it was accompanied difficult vzaimyonoj by adaptation usual and the Moslem law. The analysis of monuments doyoreformennogo the North Caucasus leads to allocation of two basic levels of law-making, namely: rules of law were formed, in - the first, at family or clan-tuhuma level and, secondly, at settlement level, «a free society» or khanate.

Here pertinently to note the basic line of legal consciousness of mountaineers: they had representation, as a crime, and punishment, as a matter of fact, are not individual, but collective actions. On an adat, any pravonayorusheniem causes a damage or honour not only separate cheyoloveka, but also a sort and public group with which the person is connected is mentioned.

Assorting "crimes against person" according to an adat, it is necessary to consider, that the person was understood not as the individual, and collective - seyomja, the clan, quarter, settlement and so forth was considered as the Subject of law not the individual, and soyotsialnoe a field which forms rules of law: a clan or settlement. CHeloYOvek which had no or has lost the social group, could not have
Any legal protection. It was the derelict whom everyone could offend, obokrast or even to kill [47].

At mountaineers northern KavkaYOza chapter 1 of work of A.M.Ladyzhensky «Adats of mountaineers SeYOvernogo of caucasus» [48] is devoted intrapatrimonial and interpatrimonial relations. To it this phenomenon were engaged in A.V.mosquito and A.M.Dirr [49]. However A.M.Dirr - not the lawyer and not the sociologist, and the philologist well knowing only the Dagestan material.

At a statement of a common law of mountaineers usually begin with mezhduro - dovyh relations, and, in particular, with blood feud. It is accepted to think, that peryovonachalnymi the norms regulating mutual relations of people were mezhdurodovye, that there were no individual rights otdelyonyh members of a sort. And, really, from strictly legal point of view, the right as we already marked above, arises in mezhdurodovyh otnosheniyojah. But the rights and duties in moral and household sense arise gorazyodo before government origin. That sushchestvovayoli mezhdurodovye norms of behaviour, it is necessary, that existed patrimonial obshcheyostvennyj the union. This last is inconceivable without norms of behaviour of its members under the relation to each other. And these norms are in detail developed and extremely strictly observed [50]. Therefore we pay attention to the intrapatrimonial.

The patrimonial system has arisen much earlier, than the state was formed. At absence subordinatsionnogo vlastnopravnogo an order, everyone could receive protection only from the relatives. Therefore it was developed corrected, that all sort should protect everyone worthy protection of a member and, on the other hand, each member should endow all for blayoga all sort, as that. The patrimonial union was considered at a time and
Blood, both the economic and religious-moral union. Each sort had the gods, the died ancestors to whom worshipped, memory koyotoryh honoured. Each public union should have a symbol of the unity. Such symbol was the banner, the arms, a portrait of the leader, etc. SimYOvolom patrimonial unity at mountaineers the chain from a copper served ordinary. VyYObrosit a copper chain was the greatest insult of a sort. Even at naroyodov with more developed social order the family patrimonial centre played a huge role and used the big honour. So, century Kabarde is many spouses married over tundirom, and they say with belief, that «tun - dir above church as he feeds, warms and clears them» [51].

Thus, at mountaineers of the North Caucasus we see difficult sisteyomu the relations, generated as a result of stratification of different influences and caused by different economic-household requirements: 1) vnutriseyomejnuju, or is more true the intrapatrimonial organisation with the norms and sanctions; 2) mezhdurodovye relations and mezhdurodovye the norms which sanction was the blood feud; 3) shariatskoe the right which was based on idea of unity of all devout. On Sheriyat houses, marriage affairs, affairs about the inheritance, preljuboyodejanie were considered such cases, as purchase and sale of the earth. On an adat murders, abduction, larceny understood. Adatsky suyodi were in each settlement and they used such kinds of punishment as eviction from the native land, penalties; 4) new private and the public law which was supported imperial Rosiej with a view of realisation russifikatorskoj a policy and struggle against many vestiges of a patrimonial system and Sheriyat, oryoganizovavshej special mountain courts.

We see, that the adats which were originally customs, slozhivshimiyosja in a primitive-communal system, were authorised by force of public opinion of relatives and force of a sort in relation to other patrimonial unions. Subsequently, when childbirth has started to break up on patronimii and zadrugi and
Became class corporations, mountain adats have turned in juridicheyoskie the norms protecting interests of exclusive layers. Transformation of patrimonial norms in legal is one of transformation displays rodovoyogo societies in protostate and tesnejshih by image is connected with posteyopennym formation of public authorities. In the ethnographic and istoriko-legal literature in general and in kavkazovedcheskoj that from customs of honouring of elders skladyvayolis the norms regulating mutual relations between operating and operated, as from labour zaimki separate families, not nahodivshiyomisja until then in using of sites, there was a family landed property, in particular, was many times specified.

By the gain moment Russia the Caucasian region, in particular at oseyotin we see, that the patrimonial system did not contain any public priyoznakov origin in it of statehood. Only in the environment of some oseyotinskih societies, as for example, Digorsky and Tagaursky, the higher "noble" estate aldarov and badeljat, which, however, not poyoluchili still any essential advantages before the rest naseleniyoem was formed. In other societies as in Alagirsky, Mamisonsky and Southern - oseyotinskom it was possible to observe even primitive democratism and only rudiments of class division.

Formation of estates was the original party of stratification of a society originally by differentiation of sorts, and then separate patronimii and zadrug, large compound families to which the sort broke up. Thus germs of estates were the following: 1) "styr" or «tyhdzhyn myggag» («the big, strong sort»). Originally the word "styr" designated purely actual position, and then it was recognised in consciousness of the population; 2) in it is feudal a state of dependence from «tyhdzhyn myggag» nayohodilis "farsagi" («being sideways, living nearby, operating zayoodno»). Farsagami were zadrugi and the clans which have lodged under protection sty - a ditch, on demand at them, on their earth... It were that in ancient Rome nazyvayo
lis "clients"; 3) further there are serfs kavdasary; 4) and at last, slaves - alhad, sadljag, i.e. »the bought, black man» [52].

In places of patrimonial cults there were meetings of elders. Childbirth had the communal meetings, nihasy in which all adult men discussed affairs. Nihas on-osetinski meant "conversation" and that place where this conversation occurred. Such "nihasy", so-called direct narodopravstyovo, well-known histories public formations.

All affairs were considered at people meetings - vechah. These vechi razreyoshali questions on an order of using wood and fields, about pastbe cattle, about ustyorojstve roads etc. On them developed so-called maslagatnoe the right, i.e. the right established by agreements. On-osetinski the decisions accepted at these meetings, were called "badzurin", that the agreement meant. In these sobyoranijah it is possible to see public authority and public law rudiments. They, koyonechno, have not been organised, as marked V.Pfaf [53]. 3. Vaneti it is correct ukayozyval, that on them there is no management and debate. « No system in work nihase existed. It is far not those meetings on which foremen give to a society the report on the actions and confer about the further direction of public affairs. Meetings at ancient greyokov, than at modern mountaineers have been much more organised. These nihasy, or "dzhamaaty" as they nazyvayolis at Kabardians and other Muslim people of caucasus, had the isyopolnitelnye bodies, so to say rudiments of machinery of state.

Much more clearly formation of statehood at vajnahov though here again it has not developed definitively was outlined. Vajnahi in this respect moyogut to serve as an illustration of formation of public authority. In difference from cheyochentsev at Kurtatinsky, Digorsky and Tagaursky the Ossetin we origin of the power based on social-class stratification, at vajyonahov it can see possible to observe creation of the princely power and from requirement zayoshchishchat the earth and the personal property. They had something similar a tree
To non-russian calling of princes. We will notice, that at Chechens the government tried to establish by people gain where yet was not rezyokoj quite developed class differentiation [54].

Thus, patrimonial associations have developed not only as krovyonorodstvennye, and arose from economic requirements. Thus childbirth was not economically equal and was with each other in struggle. At the latest stages of the development one childbirth put in imushchestvenno zayovisimoe from themselves position others, i.e. one childbirth became "lejami", t.e slaves to others, became in relation to another in a state of dependence.

Formation of the protostates occurred not only by disintegration royodov on patronimii and zadrugi, but also by differentiation between most royodami. Having kept in itself the patriarchal organisation, the patrimonial unions at last stage of the development became so to say group senoyorijami for subordinates of their power of tribal communities. On caucasus we observe a semipatriarchal-semifeudal system. In itself such senorija javljayolas the patriarchal patrimonial organisation, and in out of - the feudal lord in relation to communities dependent on it. Bodies such tuhuma for dependent were the bodies which were a rudiment state outwardly - prinuyoditelnoj the authorities. So, for example, in Dagestan meeting "dzhamaat" had ispolyonitelnoj body - the main thing kevhu and a little kevhov the largest tohumov and judges who in relation to economically dependent tuhumam were authority, t.e government rudiments.

The government, having arisen appreciably from patrimonial, soyohranila at the first stage of the development is a lot of lines from the patrimonial organisation. The most ancient right was record of customs of a patrimonial system (blood feud, composition system), but customs already got lines of a positive law (the blood feud repayment is put in dependence on a class accessory
Offended and the offender). The blood feud and its repayment became means eksyopluatatsii though these institutes have arisen at a patrimonial society.

From this, that at last stage of the development patrimonial obedineyonija were transformed to the dialectic contrast - in zayochatki the states, and bodies of the patrimonial power became rudiments gosudarstvenyonyh establishments follows, that patrimonial norms became rudiments pravoyovyh. The opinion as if there were no rudiments of rules of law during the period when the state only developed is erroneous. It is impossible to think, that in poneyodelnik the states and the rights not was, and on Tuesday they have appeared. Process of their creation lasted centuries and there were intermediate forms. Forms - emyobriony the states and right embryos. It is necessary to see them in a patrimonial society. The norms regulating the relations in a sort, and one sort to another, also were right rudiments. It, of course, not legal rules in the accepted sense of a word, but is norms which were transformed to the legal. From this point of view adats of the Caucasian mountaineers are very interesting to studying of developments of the right.

Having analysed the basic legal institutions North Caucasian nayorodov in XIX century, it is possible to tell, that, despite influence of the Moslem law and the Russian legislation, great value in region nevertheless had conventional rules. For example, at a norm marriage adayota prevailed. It concerned, first of all, obstacles to zakljucheyoniju marriage, namely ekzogamnyh interdictions to the seventh generation vkljuchiyotelno. According to norms of the Moslem law these restrictions rasproyostranjalis to the third knee, besides, the man, on Sheriyat, could zheyonit the son on the daughter of the wife from first marriage, and the father and the son - odyonovremenno to marry mother and the daughter.

Thus, though norms of the Moslem law on Northern KavkaYOze in the end of XIX century began to supersede a little adatnye norms, they, nevertheless, played rather important role in the ethnosocial environment. How much usyotojchivymi during the investigated period there were adats and traditional pravosoznayo
nie at North Caucasian ethnoses, it is possible to show on an action example khela, i.e. A communal court at vajnahov (Chechens and Ingushs). Mehk-Khel - the Sanhedrim [55]. Decisions khela were defining in sense of justice vajyonahov. The Russian administration had been enclosed many efforts for preyoodolenija such value of this court. However the administration could not okayozat essential influence on traditional sense of justice of Chechens and inyogushej - on perception of decisions khela in their ability to live. Besides even in the Soviet power sentences khela periodically conflicted to decisions official, that is the people's court. The most part of Chechens and Ingushs continued to recognise leadership khela in suyodebnoj to practice. Such position in sense of justice and judiciary practice neizyobezhno caused defined marginalizatsiju persons, occurrence of intermediate conditions in its sense of justice and behaviour [56].

After October revolution all affairs began to come under to consideration under the Soviet laws, national and regional vessels. Everyone Soviet rayobotnik in national republics and in autonomous regions should know local customs in general and legal, in particular.

The modern legal consciousness of the people of caucasus was under construction on peresecheyonii two constant axes of co-ordinates: islamizatsii - long, rastjanuvyoshejsja forever and with evidence yet not come to the end, and historically konyokretnogo existence in Russian empire, Soviet Union, Russia, dictating norms and forms both social, and individual life [57].

The social forecast of legal development of the Caucasian region on soyovremennom a stage, it is possible to tell, it is expressed in three basic directions:

• the Gradual withdrawal from usually-legal and religious traditions in favour of the positive law, connected with a formulation obshchegosudarstyo
vennoj ideologies and its reinforcement social and economic preobrayozovanijami;

• Continuation of strengthening usually-legal and religious tradiyotsy the rights to the detriment of the positive law, connected with liberaplizmom and konstiyotutsionnostju only one human rights;

• Strengthening of religious tradition of the right to the detriment of usual and poyozitivnomu to the right, in the subsequent replaced borrowed zakonodayotelstvom, nonconventional for the Russian civilisation [58].

We believe, that the choice of highways of development of the modern right and gosuyodarstva belongs not only political elite, federal and regioyonalnoj to the authorities, but also the Russian society. Are assured, that the favorable scenario should be based originally on traditsionalizme, including legal culture of the people of the North Caucasus.

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A source: GOOV Islam Machrailovich. the COMMON LAW In SYSTEM of LEGAL REGULATION At the PEOPLE of NORTHERN caucasus (ISTORIKO-LEGAL RESEARCH). The DISSERTATION on competition of a scientific degree of the master of laws. Makhachkala - 2015. 2015

More on topic § 2. Evolution of a common law at the North Caucasian people:

  1. § 4. Legal proceedings under a common law of the people of the North Caucasus
  2. Chapter 2. SYSTEM of the COMMON LAW of the PEOPLE of NORTHERN caucasus
  3. a technique of research of a common law of the people of Dagestan in first half XIX centuries
  4. Hazhirokov Valery Ahiedovich. of FEATURE of REALIZATION of LAW-ENFORCEMENT FUNCTION of the STATE In the conditions of polietnichnosti SOCIETIES In the NORTH CAUCASIAN REGION. The dissertation on competition of a scientific degree of the master of laws. Rostov-on-Don -,
  5. Chapter 1. The TEORETIKO-METHODOLOGICAL BASES of RESEARCH of the COMMON LAW At the PEOPLE of NORTHERN caucasus
  6. CHAPTER 1. THE TECHNIQUE OF RESEARCH OF THE COMMON LAW OF THE PEOPLE OF DAGESTAN IN FIRST HALF XIX CENTURIES. THE QUESTION HISTORIOGRAPHY
  7. the APPENDIX 2 Report of session of scientific and advisory council at Federal arbitration court of the North Caucasian district from 16.07.2004 g
  8. Initial data for map development of isolines of graduso-days otopitelyonogo the period for Southern and North Caucasian federal districts
  9. Strategy of the state national policy concerning the radical small people of the North, Siberia and the Far East
  10. Financially-legal bases of realisation of the rights of the radical small people of the North, Siberia and the Far East
  11. the Financially-legal concept of a sustainable development of the radical small people of the North, Siberia and the Far East
  12. GOOV Islam Machrailovich. the COMMON LAW In SYSTEM of LEGAL REGULATION At the PEOPLE of NORTHERN caucasus (ISTORIKO-LEGAL RESEARCH). The DISSERTATION on competition of a scientific degree of the master of laws. Makhachkala - 2015, 2015
  13. 3.1. An order of financing of territories of traditional residing of the radical small people of the North, Siberia and the Far East the Russian Federation
  14. Initial data for map development of isolines of excess of thermal energy during the heating period for windows of southern orientation with is minimum admissible resistance to a heat transfer for Southern and North Caucasian federalyonyh districts
  15. Initial data for map development of isolines specific total solnechyonoj radiation under the valid conditions of the overcast arriving on veryotikalnuju a surface of southern orientation for 1 hour during the heating period for Southern and North Caucasian federal districts