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§ 3. A parity of a common law with Sheriyat and the right of Russian empire

The problem of legal pluralism which is actively discussed juristayomi, has for Muslim ethnoses of the North Caucasus as nauchnoyoteoreticheskoe, and practical value. The legal culture of Islamic subjects of our country within last centuries is focused on three glavyonyh a component: local customs - an adat, the state legislation and Sheriyat.

In this sense the situation here in the majority is similar to legal development bolshej parts of the Islamic countries. Here each component of this triad resists to 2nd another which in this rivalry are soyojuznikami. The adat aspires to defend the positions before Sheriyat and the law which combat for a long time traditional norms. Sheriyat streyomitsja to the statement of the superiority over the law and an adat, each of them does not wish perception of Islamic rules of behaviour. The law applies on
Role of a unique legitimate legal regulator before an adat and shariayotom which - everyone from the positions - deny the certificates accepted gosudaryostvom as not answering to local conditions [59].

The chronology principle dictates us strategy according to which we should begin the analysis of a subject of the present research with a parity of two categories, i.e. adat and Sheriyat. The objective analysis, true search assumes the new approach to finding-out of interrelation of Sheriyat with an adat. The account of a parity, interrelation of Islam with a common law of the people of caucasus will allow to estimate correctly in many respects a place and a role of these important categories in social and economic, spiritual development of the Caucasian society, in formation of its politiko-moral culture.

Archaic rules of law basically are de facto incorporated during a political and spiritual life of many ethnoses of the North Caucasus. Ethnic revival and modernizatsionnye processes, zatragiyovajushchie the North Caucasian people, including and Muslim ethnoses, sposobyostvovali actualisations of a question on mutual relations of Islam and an adat.

Collision of Islam and the Caucasian legal culture was not only military opposition of Muslim conquerors and mountaineers, but also vzaiyomodejstviem different cultures in which course the new type mixed simbioznoj legal system was generated.

Caucasians on the way of life, the social device, norms of a hostel, show the historical and cultural type which is absolutely distinct from culture of the people of Arabian desert of the period of origin and rasprostraneyonija of Islam. For this reason Islam affirmed among the people of the North Caucasus through collision with adats of mountaineers - common law system, koyotoraja regulated social and economic, family-household and duhovnoyonravstvennye relations of mountaineers. Aversion of Islam the Caucasian mountaineers
It is possible to explain to that their way of life, the social device, nravstyovenno-ethical standards, attitude considerably differed from forms sotsiokulturnogo lives, spiritual belief of Arabs-conquerors. Variety of the people of the North Caucasus which superficially practise Islam, not only norms of an adat along with Sheriyat apply, but also sometimes these norms dominate over it [60].

Established politiko-legal domination of Islam on teryoritorijah the North Caucasus has not led to eradication traditional prayova. Its roots were so are deep, that Islam has been forced prisposobljatsja by a public and spiritual life of the Caucasian mountaineers, to norms of an adat, javljavyoshihsja by a regulator sotsiokulturnoj the parties of their life.

It is known, that the musulmansko-legal science supposes the reference to custom if it does not contradict Sheriyat. In Islam every possible traditions and the customs which majority did not coincide with norms of Sheriyat always co-existed and even contradicted them. Frequently they were are taken for osyonovu the state legislation which was accepted in averages veyoka. The adat (urf) widely was used by the civil courts operating along with shariatskimi with vessels. Besides in practice in the majority of norm of Sheriyat applied after they became an integral part of system of local customs. So the uniform system sotsialnoyonormativnogo the regulations, were symbiosis of local customs and norms of Sheriyat has been created. This system often is called as an adat, or adatnym the right [61].

As we earlier enough in detail spoke about a common law, just right to stop on Sheriyat. Researchers as L.R.Sjukijajnen, D.J.Shapsugov, V.O.Bobrovnikov, A.A.Liverovsky, Z.H.Misrokov, Svechnikova L.G., Halifaeva A.K. have anyhow paid it attention tayokie, etc. What itself represents Sheriyat as a definition? Sheriyat (the Arab. sharia - «a direct, correct way; obligatory instructions; the right; the law») nazyyo
vajut the arch of Muslim legal and theological specifications, zakreplenyonyh, mainly, in the Koran and sunne and proclaimed Islam vechyonym and an invariable fruit of divine establishments. Sheriyat which is understood as universal standard system, frequently is called as the Muslim religious law. In this sense it it is frequent otozhdestvyoljaetsja with the Moslem law [62] if the term "right" use not in strictly legal, and in obshchesotsialnom sense. At the same time, in Sheriyat allocate actually legal maintenance embodied, preimushchestvenyono, in the general principles fikha which are formulated by Muslim jurists and answer criteria of the right and which modern musulyomanskaja the right concept carries to Sheriyat [63].

L.R.Sjukijajnen, the expert in the Moslem law, from our point of view, more than in details defines essence of everything that contacts shayoriatom and with Islam as a whole. He writes, that Sheriyat is a complex predpisayony, fixed in the Koran and sunne which define belief, formiyorujut religious conscience and moral values of Moslems, are isyotochnikami the norms regulating their behaviour. In the Moslem law Sheriyat is a set of obligatory norms to observance and instructions, ustanovyolennyh the Allah and transferred by it to people through prophet Mohammed. Three parts are included in Sheriyat: religious the dogmatic person, Islamic ethics and so-called practical norms. At the same time in Sheriyat actually legal maintenance embodied in the general principles fikha which the modern Muslim concept of the right concern Sheriyat is allocated.

As modern scientists mark, Sheriyat - spiritually-legal proyodukt, being a Moslem doctrine component, the moral charter of behaviour of the believing person and fundamentals of legislation Islam
skoj the countries [64]. Substantial it is possible to name the definition given by V.O.Bobrovnikovym: «Sheriyat represents a complex religious and prayovovyh the norms constituting a basis of the Moslem law (the Arab. It is scarlet-fikh). It is extremely flexible law-enforcement system capable funktsioyonirovat in the most various public systems and political modes both in Muslim, and in not Muslim states. So, some norms of Sheriyat (for example, an order of the indemnification in case of ship-wreck) are acquired by international law» [65].

N.Tornau's work of XIX century «the Statement of the beginnings Muslim zakonovedeyonija», is devoted to research of the problems, concerning maintenance disclosings

3 concepts "Sheriyat" and embodiments during a life of Muslim jurisprudence [66].

Representatives Soviet islamovedcheskoj literatures, in particular, L.H.Avshalumova and M.V.Vagabov, in concept "Sheriyat" put meeting of rules of law [67]. From the point of view of A.V.Komarova, in VIII century aravitjane which have appeared in Dagestan and have affirmed as Derbent, began to preach noyovuju religion. This religion in spite of the fact that quickly extended watch the Dagestan tribes, nevertheless completely by them it has not been apprehended. IsYOlam in the North Caucasus before all gets and begins rasprostrayonjatsja in Dagestan which and remains today most islamizirovannoj republic of the North Caucasus [68].

On Sheriyat began to solve all affairs concerning religion, family otyonoshenijam, to wills, the inheritance and to some civil suits. UgoYO
lovnye affairs, business on breach of law of the property, public postayonovleny and so forth continued to solve on former adats and adats, opredeljajuyoshchim punishments for a number of crimes and acts against religion rules.

A.V.mosquito lists principal causes of preservation of court on a hell - there: 1) too strict punishments established by the Koran even for maloyovazhnye, on concepts of Caucasians, crimes (for example, larceny, skotoyolozhstvo, etc.), could not be on customs to the people, «iskoni got used to polyonejshemu beznachaliju».

Besides, adat preservation was favourable for governors as not possessing first sufficient force and means for court destruction on an adat, later they have found in it support and strengthening of the power. Penalties which were collected from guilty affairs at the decision on adayotu, were for them a considerable source of the income, possibility ustayonovlenija new adats and the decision on them of many affairs, not being held down poloyozhenijami the Koran that promoted consolidation of their power and easing of influence on the people of the clergy hostile to temporal power; 2) studying of the Koran and Muslim jurisprudence, rather difficult, caused at ljuyodej, even what have devoted itself to it, invincible difficulties, and priyomenenie an adat any business on which the decision in Sheriyat was not accepted did not demand special knowledge, with ease dared on an adat the majority vote. Such fast and clear decision for all was a management by consideration of similar affairs and on prospect [69].

On the basis of the analysis which has been spent by Z.H.Misrokovym, position according to which adatnyj the court was more rayotsionalnym, rather than court kadi, its procedure - more accessible and clear has been proved,
And decisions of judges, people esteemed and informed, - were not called in question [70].

Thus, on caucasus have started to co-exist and in any measure to co-operate two legal systems - adatnaja and shariatskaja. It is necessary takyozhe to tell, that in due course contradictions between an adat and Sheriyat sgladiyolis to such degree that is frequent adatnyj court it was managed by representatives of Moslem doctrine - kadijami, and in shariatskih installations many postulates which were were supposed are taken from the arches In spite of the fact that reliyogioznye figures applied many efforts to replace an adat shayoriatom, for mountaineers it did not become dominating legal system. SvobodoYOljubivym and to peaceful mountaineers it was hard to accept such severe viyody Sheriyat punishments, namely: otrubanie hands (for larceny), zabrasyvanie stones of the persons convicted of adultery and others. Sheriyat introduction poyotrebovalo studying and good knowledge of the Arabian language, and also the Koran - as basic source of Sheriyat. As mark M.A.Magomedov and M. M. Gadzhiev, an adat was of great importance for mountaineers also because Sheriyat as creation of the Allah, could not be changed whereas mountaineers at the decision of legal questions started with concrete conditions of the dzhamaatskoj about - shchiny [71]. However in essence between an adat and Sheriyat there were no antagonism displays, besides Sheriyat tried to give to adats religious okrayosku and raised a legal status of adats.

So, struggle and the mutual adaptation of Islamic and not Islamic norms have caused development of a legal adat of the Caucasian mountaineers. One and teyomi vessels considered legal actions both under a common law, and on the Muslim. At local Muslim elite it has been concentrated suyodebnaja, legislative and the executive authority. Besides, when razbirayo
lis criminal, land and family proceedings, norms of an adat frequently smeyoshivalis with instructions of Sheriyat [72].

Monitoring of sources of law of various legal systems pokazyvayoet, that the law and custom co-exist during all legal system, how many it lasted, but relative density of the norms established in this or that form the same as their formal prioritetnost, changes from one epoch to another.

Historical development of traditional institutes of the right in the North Caucasus is unique. XVII - XVIII century of century in the North Caucasus there was seveyorokavkazskaja a civilisation characterised polietnichnostju, religiozyonym sinkretizmom (synthesis jazychestva, Christianity and Islam), psihologicheyoskimi the lines fixed in codes, prevalence negosudarstvenyonyh (but not dogosudarstvennyh) forms of self-organising [73]. Already during this period the people of the North Caucasus pass to origin of bodies public vlayosti and to genesis of a common law of legal dualism on the basis of norms of an adat and

3

Sheriyat [74].

The beginning to new representations was put by Catherine II. In one of nayokazov she wrote: «Laws an essence especial and exact establishments zakonopoyolozhnika, and customs and customs an essence of an establishment of people all in general. Rather thin that policy who alters that laws that is necessary peremeyonjat customs» [75].

«Sheriyat epoch» begins with the end of XVIII century so-called. In the beginning of XIX century Ottoman empire has made an attempt easings of action of a mountain adat: there were local Islamic leaders who aspired sushchestyovenno to reform and modernise a Muslim life severokav -

kazskih mountaineers. For example, shariatskoe movement in Kabarde which head was Adil-weight Atazhukin (1798), supporters - the Khan-weight and SHora Nogmov [76]; movement mjuridizma which head was SHamil, formation imamata on Northeast caucasus (1834-1859). StoronniYOkami movements on Northwest and the Central caucasus were Izmail - beat Atazhukin, efendi Ishak Abukov [77]. That fact Is worthy, that in societies of caucasus which have accepted Islam, power structures if takoyovye were present and possessed authority and force, tried to put into practice establishments of Sheriyat, the Moslem law, counteracting mestyonym to the customs clashing with integration ideas of Islam. So, the leader of people's liberation movement in the Chechen Republic and in the North Caucasus sheikh Mansur in public sermons, being based on Islamic values and norms of Sheriyat, called Chechens for a repentance, mercy and mutual aid, to refuse robberies, quarrels, blood feud. On their basis it could consolidate temporarily isolated Chechen societies - dzhayomaaty which often were at enmity among themselves and adhered to archaic adats. According to Mansura, Sheriyat acceptance should rally goryoskie the people divided into the special adats [78].

Mansur contrasted the religious law with an adat against which as he considered, it is necessary to lead resolute struggle. He underlined, that resheyonie affairs on an adat is a disbelief in the Allah therefore as such decision belittles value of Sheriyat, equates to it the law terrestrial.

During Caucasian war SHamil not less actively tried to enter among mountaineers strict norms of Sheriyat. However, having met from their party the deaf
Resistance, to it was necessary to go on a number of concessions in favour of an adat. Full eradication of adats to it was not on forces. For example, Chechens from tajpa che - berloj when SHamil has demanded submission to Sheriyat, have told, not without humour, that they «have laid Sheriyat in a wineskin and have tied up a throat», having offered it to take away. And even its severe reprisals against cheberloevtsev not sodejstyovovali to Sheriyat strengthening. After defeat of mountaineers in the Caucasian war, liquidation imamata SHamilja, Sheriyat has fallen into decay. It has led reayonimatsii an adat - after capture SHamilja in a captivity voyozobnovilo at itself analysis has put all Dagestan population on an adat [79].

Eventually in 1860-1868 of in the North Caucasian region byyola reform on the basis of codification and some modernisation of a common law is spent. Main principles are defined in «the special instruction for management of mountaineers», the constituted A.I.Barjatinsky. A number aryohaichnyh norms of the adat, contradicting the Russian legislation was forbidden. But in XIX century Moslems pre-revolutionary Kabardy frequently applied an adat at the decision not only criminal cases, but also in sphere family, hereditary or civil law [80].

Historical feature of the North Caucasus was that after ustayonovlenija here the Russian power the region indigenous population has been for a long time withdrawn from under action of the majority of the all-Russian laws. In Russian empire the concept "natives" or "foreigners" was fixed to them. According to the Russian administration, reform of the legal organisation on suburbs had for an object to prepare transition of natives for full acceptance Russian grayozhdanstva and distributions on suburbs of the legislation of empire.

Certain parallels find out poreformennye people's courts and judicial tribunals in Russian village. Both those, and others considered the local
Legal custom. Action of the all-Russian legislation was here ogyoranicheno. Under the Penal code of 1845 foreigners have been temporarily withdrawn from under action of the general criminal laws (item 168) «on a condition of their customs and a way of life». On the basis of item 102 of General provisions on peasants, volostyonye courts, and also volost and rural heads at definition of punishments considered action of customs and in the field of the criminal jurisdiction of these vessels. Reforms of 1860-1880th years provided measures on increase grazhdanyoskogo sense of justice, both peasants, and "foreigners".

Since second half 1850th years (in a concluding period of the Caucasian war 1817-1864) for «peace mountaineers» region the new administration which has received the name of military-national management was created. Its essence was not bad formulated by the deputy the Caucasian (1905-1915) geyoneral-aide-de-camp of columns I.I.Vorontsov-Dashkov. He wrote, that system voennoyonarodnogo managements which has been created on caucasus during struggle of Russian armies against local mountaineers, is based on concentration adminiyostrativnoj the authorities at some officers under the top management glavnoyokomandujushchego the Caucasian army and «on granting to the population in vnutyorennih affairs to be known on the adats» [81].

Caucasian (1856-1862) prince A.I.Barjatinsky was the founder of military-national management mentioned above nayomestnik. Since time ustayonovlenija contacts to the Russian management - military and civil the basic problem for the people of the North Caucasus is a preservation of the traditions and customs of the people. This idea will pass red niyotju throughout only XIX in [82].

Position about the Caucasian army »which included became the first act in which bases of military-national management have been stated along with the general program of reforms, prinjayotoe on April, 1st, 1858«
Separate part «On management of the mountain people which were not a part of civil management». Main principles and a management order gortsayomi on new system were defined by the instruction for district chiefs of the Left wing of the Caucasian line, approved Barjatinsky on March, 23rd, 1860

The social hierarchy of the local military elite which has been especially strongly developed during prereform time in Big Kabarde (in territory sovreyomennoj Kabardino-Balkariyas) and flat Dagestan has disappeared.

Easing of Sheriyat and moderniyozatsija adatnogo the right and the process was other direction of reform, having for an object to prepare gradual transition of mountaineers for the uniform Russian legislation.

At the same time the Russian administration tried to destroy nekoyotorye archaic criminal norms of an adat which directly contradict zakoyonodatelstvu to Russia. Chiefs of districts have been obliged not to suppose that in people's courts decisions on Sheriyat and an adat were applied, protivoyorechashchie to the general spirit of the Russian laws.

In 1860th years the Caucasian hardened line has been abolished and SeYOvernyj caucasus has been divided into three areas: Dagestan, Tersky and Kuyobansky. In Tersky and Kuban areas it was possible to realise only otyodelnye elements of military-national management. Unlike Dagestan its institutes here never differed unity and the harmonous organisation.

The system adatno-shariatnogo justice at mountaineers of Tersky and Kuban areas was not three - and two-level. Such courts have been created here much more later, than in Dagestan and time and again changed the form [83].

To a gain Russian of caucasus the local right at Moslems razvivayolos in the form of the reception of norms of Sheriyat in an adat. On rural descents at rasyosmotrenii certain categories of lawsuits were accepted postanovleyonija about transition to the Moslem law (fikhu). By then, when KavYOkaz has been attached to Russia, adat and Sheriyat scopes were
Are differentiated. An adat, as a rule, used, solving criminal cases and poyozemelnye the lawsuits, concerning communal possession (the Arab. - harim). In vedeyonie Sheriyat grazhdansko-family and partially land right (chastnosemejnaja and mechetskaja the property has been transferred: mulk and vakf) [84].

It is necessary to tell, that Russia supported the Caucasian adats, sometimes in a counterbalance to Sheriyat because adats were closer to mountaineers: in them not soderyozhalos severe kinds of punishment, such as otrubanie hands for larceny, zayobrasyvanie stones for adultery and so forth

Position about management of the Dagestan area had been established a prerogative of the decision of affairs on an adat, Sheriyat and the Russian military-criminal laws: on an adat: on murders and krovomshcheniju; on wounds; on quarrels, drayokam etc.; on courtship and uvozu women; on rape of women; on razyovratu; on larceny; on a robbery though with violence and threats, but such, that is not represented dangerous to a life and health plundered; on podzhoyogam and porcham another's property and on land disputes, complaints poseljan on owners, on infringement of various public decisions, on poteyorjam and to finds and so forth On Sheriyat: on disagreement between the husband and the wife, rodiyoteljami and children, under wills, on disputes on the property belonging meyochetjam and so forth On military-criminal cases: for change, indignation, obvious nepoviyonovenie to the heads, robbery and plunder of state property and dr [85].

As we see, the most part of the basic crimes and offences reshayolas court on an adat.

After revolution of 1917 the relation of the state to traditional and to the Moslem law has changed. Unlike Russian empire sovetyoskaja Russia in 1920th years struggled with a common law, seeing in it the tool of class and colonial operation of the mountaineers-Moslems, inherited from an imperial mode. The Soviet power has been established in region at podyoderzhke influential representatives of Muslim spiritual elite, vkljuyo
Tea sufijskih sheikhs of Dagestan, the Chechen Republic and Ingushetia. At the beginning this circumstance has predetermined support by Sheriyat state. Thus the real policy of the state in relation to Muslim (and tradiyotsionnomu or usual) to the right in 1920-1980th years time and again and strongly menjayolas. These metamorphoses are embodied in the Soviet legislation.

Sheriyat introduction was one of the major requirements of revolution of 1917 in region. Passing in May, 1917 in Vladikavkaz I Congress of the mountain people of caucasus has enacted «to enter in all vessels on all affairs of Moslems of a rule of the Koran and Sheriyat». [86] Soon after that the resolution on creation shariatskih vessels has been accepted by I Congress of the people of Terek, sostoyojavshimsja in January, 1918 in Mozdoke. [87] Partly according to decisions of congresses, partly it is spontaneous in 1918 city shariatskie courts have opened in all large North Caucasian cities with the Muslim population - Vladikavkaz, Grozny, Nalchik, the Temir-khan-shure.

With the Civil war beginning in January, 1919 shariatskie courts have been transformed in military-shariatskie. At replacing each other voenyonyh modes them used for squaring of accounts with political protivyonikami. With their help Turkish occupational armies, groups of colonel L.F.Bicherahova and Voluntary army of general A.I.Denikin raspravyoljalis with Bolsheviks and supporters North Caucasian emirata, sozyodannogo in mountains of northern Dagestan and the Chechen Republic the sheikh of a brotherhood Nakshban - dija-Halidija Uzun-Hadzhi.

Let's pay attention to that, despite the name, sharsudy on - the former were guided not only the Moslem law, but also normayomi an adat. Most large powers were at district sharsudov in CHechYOne and Ingushetia where sharsudov the Supreme Court of RSFSR could appeal against decisions only. In Kabarde and Adygea complaints to decisions district sharsudov
Submitted in republican NKJU. And, at last, in Kubano-Black Sea resyopublike in exchange shariatskih vessels have founded a post kadi in structure nayorodnyh vessels.

In 1920th years the legal pluralism was discriminating line of the North Caucasus still: in republics co-existed a little sudebnoyopravovyh systems. On the official Soviet statistics, sharsudami on the Seyovero-western caucasus every year understood to 30-50 % of all lawsuits; in Dagestan and the Chechen Republic - to 70-80 % of affairs [88].

It is necessary to tell, that the relation of the Soviet power to Muslim prayovu was opposite to the politician pre-revolutionary rossijyoskoj administrations which supported an adat, counting on a weakening of positions of Muslim rebellion whereas Bolsheviks in the early twenties aspired to the union with Muslim emancipating dvizheniyoem. While the Soviet power was rather weak, they tried to win round Moslems, supporting Sheriyat. Calculation of Bolsheviks has appeared veryonym. For example, the Soviet power in Dagestan have established, leaning on podyoderzhku Councils from guerrilla groups in which head there was nakshbandijsky sheikh Ali-Hadzhi Akushinsky [89]. We will remind, that on SeverYOnom caucasus at origin of the Soviet power has appeared shariatistskoe movement. Sheikh Ali-Hadzhi Akushinsky, in CHechYOne - sheikhs the Sugaip-mullah and Ali Mitaev, in Kabarde - Kathanov headed it in Dagestan.

So, Sheriyat development during the Soviet period as normativnoyotsennostnoj, reguljativnoj systems was reduced to two paradoxical moyomentam:

- Soviet political, the government at 1st stage of the development considered, that it is suitable for realisation of its purposes in organizayo
tsii public relations and management, providing execution of its norms and principles;

- The Soviet state gave to the Moslem law great value as to the real factor in a life of the North Caucasian people [90].

Definitively them have forbidden at first in the North Ossetia where musulmayone constituted minority of the population, in 1924 in Mountain republic, in janyovare 1925 - in Adygea and Kabardino-Balkariya, in January, 1926 - in IngusheYOtii and the Chechen Republic, and in April - October, 1927 - in Dagestan. [91]

If to speak about dzhamaatskom board and rural adatnyh vessels it is possible to notice, that they were comprehended by the same fate, as courts shariatskie. VydeYOlennye adat and Sheriyat elements have been completely excluded from an official standard field from formal-legal field the North Caucasus, but layotentno continued to remain and affect sense of justice and funktsioniyorovanii local state bodies and law-enforcement structures. In this connection problems round Sheriyat revival in the North Caucasus and its influences on political processes in region remain till now debatable, arresting to themselves the increasing number as mestyonyh, and regional (federal) mass media [92].

In 1928 to the North Caucasus action of the tenth glayovy the Criminal code of RSFSR «About the crimes constituting vestiges of a patrimonial life» has extended. The given chapter has been kept in subsequent editions UK RSFSR up to the Criminal code of 1960. The reference to adat rules of law the same as krovomshchenie and ishkil (baramta), has been equal to heavy criminal offences.

With the beginning of the Great Patriotic War the relation to religion, muyosulmanskomu and to the traditional right in the USSR has considerably changed. At all-union level in Moscow it has been decided to legalise separate reliyogioznye communities and institutes to adhere believers to Soviet goyosudarstvu and to help it to stand with the Second World War. Activity DUMSK covered 8 autonomous republics and areas of the North Caucasus with the Muslim population - Dagestan ASSR, Kabardian ASSR (with 1957 Kabardino-Balkarian ASSR), North Ossetia ASSR, Adygea joint-stock company, the Krasnodar and Stavropol edges, Groznensky area, and since 1957 restored after rehabilitation of the deported people Chechenoyoingushsky ASSR and Karachaevo-Circassian joint-stock company. In capitals of each of these North Caucasian autonomies of RSFSR muftijat represented kazii (kadi) and the revision committees annually checking fiscal accountings and as a whole activity registered mechetnyh of communities and reporting for it before muftijatom [93]. In August, 1998 at the initiative of DUMD for sovmeyostnoj struggle against a vahhabism in Nazran the Coordination centre of Moslems of the North Caucasus, consolidated the DUMAS of the Chechen Republic, Ingushetia, KaYobardino-Balkarii, Karachaevo-Circassia and Stavropol Territory, Adygea, Northern Ossetia-Alanii has been created.

In Post-Soviet Russia the relation of a policy and a science to legal and not legal traditions has sharply changed. Both on federal, and on reyogionalnom levels positive value of custom as that is recognised, its legal status has sharply raised. The state has incurred protection of local traditions and even recognised the traditional (usual) right in quality vozyomozhnogo a legislation source. For the decision of the given problem were izyodany laws «About a rural community», «About the arbitration courts» and «About rural sayomoupravlenii», accepted in 1995-1997 in Adygea, Dagestan, Kabardino - Balkarii, Northern Ossetia-Alanii. Since presidency of B.N.Yeltsin,
The federal authorities declared time and again the support of Islam as to one of traditional faiths of Russians, since «the Concept of national safety of the Russian Federation» 1997 [94] Underlining care rossijyoskogo the states not only about orthodox, but also about Muslim grazhdayonah the Russian Federation, the president annually congratulated them on holiday Kurban-bajrama, just as orthodox - with Easter and Christmas. This tradition proyodolzhili presidents D.V.Medvedev and V.V. Putin. In a preamble federalnoyogo the law «About a freedom of worship and religious associations» Islam together with Orthodoxy is carried to religions, «constituting an integral part isyotoricheskogo heritages of the people of Russia» [95].

Last 2000-years the power has decided to lean again against «useful local traditions», first of all the Sanhedrims similar to institutes, created as it was already spoken, in 1950-1970th years, but any more at level seyoleny and areas, and at levels of the North Caucasian federal district (SFKO) and subjects of Federation. [96] in March, 2012 the first has been spent soyoveshchanie the plenipotentiary with candidates for Council from the DUMAS of subjects of the Russian Federation in region.

In scientific-journalistic articles the question about soyosushchestvovanii triads is quite often brought up: the secular law, Sheriyat and an adat.

On this background interest represents, in particular, the relation gosudarstyovennyh structures and of some public agents of Russia to Sheriyat to it sootnoyoshenii with the current legislation. Unities in understanding of it voproyosa are not present. For example, on the basis of situation studying in Kabardino-Balkariya I.L.Babich has allocated three basic approaches, dividing power structures, prayovoohranitelnye bodies, the deputy case and social movements. PerYOvyj the approach assumes a recognition of an existing state of affairs, faktiyocheski effective standards of an adat and Sheriyat without their legislative zakrepleyo
nija, but also without artificial revival of the traditions which have remained in the past. The second approach starts with necessity of acceptance of the legislation, vkljuyochavshego preservation of local traditions and the customs playing a positive role. Supporters of such decision of a problem consider what to reform judicial and legal system, considering the traditional right, it is undesirable, since it vseyogda became a corner stone in mutual relations between caucasus and Russia. The third approach the most part of officials and depuyotatov adheres to the local parliaments consistently defending unity of legal system of modern Russia. In their opinion, the local population has cardinally changed the way of life, having brought to nothing influence of local traditions. VsledstYOvie it is not present necessity to speak about any parallel to the law effekyotivnoj to system of norms of an adat and Sheriyat. And their revival and, especially, legaliyozatsija is not an actual problem [97].

As it is represented, the most developed concept of the decision of it voyoprosa at general-theoretical, istoriko-legal and constitutional level concerning the North Caucasus A.A.Liverovsky, offering konstituyotsionnoe has given a recognition of a common law [98].

It is thought, in A.A.Liverovsky's concept there is a rational grain. For example, it is possible to agree that in the Russian regions traditsionnoyogo distributions of Islam by the power are insufficiently used konstitutsiyoonnye powers under terms of reference of subjects of the Russian Federation, and also joint conducting the Russian Federation and subjects of Federation for acceptance zakoyonodatelstva, reflecting historical and cultural traditions of the people living in them. We support a conclusion that separate norms of an adat and Sheriyat keep the positive role in protection of interests of ethnic and religious communities. A part of traditional rules and institutes
Correspond to legal criteria and consequently can find the place in the legal validity of Russia, mainly, at regional level. Besides, attempt of a summer residence of the constitutional substantiation to the reference to Sheriyat and search of the legal formula vzaimodejyostvija Sheriyat with the Russian legislation [99] is of interest.

Relatives on the orientation of thought develop Z.H.Misrokov and T.Z.Misrokov which analyze a category of traditions in a context zakoyonodatelnogo regulations of system of local government [100].

In this case sights of the Russian researchers at a problem shayoriata and its interactions with the current legislation differ bolshej suspension. Confirming to the given conclusion it is possible to result the Decree of the President of the Russian Federation about strategy state nayotsionalnoj politicians from December, 19th, 2012 in which among principles tayokoj politicians the mutual respect of traditions and customs of the people of Russia is marked, and also continuity of historical traditions [101].

Summing up the above-stated, can bring the attention visible us a paradigm on this problem:

1. At development of the general federal policy in relation to muyosulmanskomu and to the traditional right to territories of the North Caucasus sleyoduet to have in view of a heritage of legal pluralism XIX-XX centuries, but not in kacheyostve the sample for orientation in a kind kleshe, and for the account of this phenomenon as historical experience.

2. Dangerous, we consider, return to practice in the Caucasian edge 1860-1927 when the region has been deduced from under action of general provisions Russian zakonodayotelstva. Level of a modern civilisation means regulation otyo
Carrying in the North Caucasus within the limits of secular Russian zakonodatelstyova. Feature of local legal colour, we consider, the account local trayoditsy an adat and Sheriyat which is not contradicting a constitutional law.

3. At state policy development to North Caucasian muf - tijatam (DUMAS), shariatskim and mediatorskim to vessels, shariatskim to judges (kayodi) it is necessary to have in view of experience of Soviet post-war time, 1944-1989 when release of the religious-legal conclusions (fetv) and departure muyosulmanskoj jurisdictions were carried out by legalised top DuYOhovnogo of management of Moslems of the North Caucasus under the control of Council about affairs of religious cults (Council about affairs of religions (SDRK / SDR).

4. It is necessary not to leave uncontrolledly variety informal prayovovyh an expert, for example, arising in case of need ureguliroyovanija conflicts on places the reconciliatory commissions and the arbitration courts with participation of Muslim spiritual elite, old men and women.

5. An adat, Sheriyat and norms of the Russian legislation not always soyovmestimy, and more often antogonichny. Between them there are contradictions in obyolasti material and remedial branches of law. However moral culture of the people of caucasus, checked up by centuries, under the maintenance (the respect for seniors, the woman, care of parents, hospitality, the benevolent relation to representatives of others nayotsionalnostej) can keep universal customs the integrating role and to be considered by official sources.

6. In order to avoid a political manipulation Sheriyat against the Russian statehood it is obviously necessary to have otchetliyovuju konfessionalnuju the all-Russian policy (on local, respubliyokanskom and regional level), directed on unity predstaviyotelej all religions and the nations.

7. The secular legal system will be the winner and bezkollizionnoj in sluyochae consecutive and effective reforms and lawmaking. In a condition
jah the Caucasian region the adat and Sheriyat, sometimes in a cut to civilised methods can fill legal vacuum.

8. Colleagues should give to scientists-lawyers of more attention izucheyoniju is social-legal an expert, not being limited to research normayotivnosti as that and to integrate the researches on scientific soobyoshchestvah. Monitoring of a legal situation in subjects North Caucasian and Southern federal districts will help to trace dynamics and tendencies in development of a legal situation. Agree with those researchers from Fund of perspective researches "Bastion" which offer concrete measures for tracing of a legal situation:. Creation of the centres of studying traditional and the Moslem law at faculties of law mestyonyh universities which will have sufficient financing for carrying out of concrete researches: carrying out of scientific expeditions and soyotsiologicheskih interrogations in relation to Sheriyat and an adat, work studying shariatskih and obychnopravovyh institutes and an expert (primireny, marriages and divorces, inheritance and other);. Creation at the regional centres of the Russian Academy of Sciences in Makhachkala (for Northeast caucasus) and Nalchik (for Northwest caucasus) the Centers of studying usual and muyosulmanskogo the rights which will co-ordinate researches with universiyotetskimi the centres and to generalise results of researches in a kind ezhekvartalyonyh (or annual) reports with instructions of available tendencies and konkretyonymi recommendations;. Support regional sociological tsenyotrov in the organisation of researches of public opinion in relation to shayoriatu, to an adat and the Russian right;. Allocation in the device of the Plenipotentiary of the President of Russia in SKFO and JUFO groups on monitoring of a legal situation in region. This group should be in a direct communication with the centres on studying traditional and the Moslem law in regions.

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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 § 3. A parity of a common law with Sheriyat and the right of Russian empire:

  1. specificity of interaction of a common law and Sheriyat in legal system of Dagestan in first half XIX centuries
  2. CHAPTER 2. Classifications of sources of law of Russian empire in action of the Code of laws of Russian empire
  3. § 5. A problem of a parity of idea of codification of criminal law and common law. Ideology formation kodifikatsionnogo movements
  4. 1.2. Crimes against property in the theory of criminal law of Sheriyat
  5. 3.1. System of sources of law of Russian empire during the period with 1832 for 1866
  6. changes in the ratio sources of law of Russian empire during the period with 1866 for 1906
  7. features of changes in system of sources of law of Russian empire at transition from a monarchy to republic (1906 - 1917)
  8. the characteristic of sources of law of Russian empire XVIII - the beginnings of XIX centuries
  9. CHAPTER 3. System of sources of law of Russian empire 1832 - 1917
  10. a place of sources of law in formed legal system of Russian empire (1832 - 1917)
  11. CHAPTER 1. Istoriko-theoretical aspects of formation and development of system of sources of law of Russian empire
  12. Nizamy SHamilja. Common law transformations
  13. a parity of concepts and signs brave and aleatory contracts and their system in civil law of the Russian Federation
  14. BOTANTSOV John Vladimirovich. EVOLUTION of SYSTEM of SOURCES OF LAW of RUSSIAN EMPIRE (1832-1917). The DISSERTATION on competition of a scientific degree of the master of laws. St.-Petersburg - 2017, 2017
  15. Leadership of the Constitution of the Russian Federation in its parity with norms of international law and international treaties.