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Local Institutions and Metropolitan Goals

Tsarist administrators, facing the steppe, confronted an administrative system sharply distinct from the one in the European parts of the empire, particularly with respect to the judiciary. Law, among the Kazaks, centered around the figure of the biy, a judge-cum-orator appointed by popular acclamation who gave his rulings publicly, in accordance with customary law (adat). Particularly complicated disputes, or those involving appeals, could instead be subject to the decision of an assembly of biys. Such an independent judiciary, ruling according to principles basically unknown to tsarist administrators, seemed intolerable for reasons of imperial prestige and control alike. Thus Virginia Martin has argued, from 1822 (the year of Speranskii’s Rules [Ustav] on the Siberian Kazaks, i.e., those of the Middle Horde) on, tsarist administrators attempted to “[use] law to ‘civilize’ the Kazaks gradually in a colonial mission that mixed the material goal of settlement of the nomads with the cultural goal of ‘softening’ the morals and changing the customs that did not coincide with Russian legal sensibilities and cultural norms"54 The continued existence of the biy court and the customary laws that supported it were only possible to the extent that they supported imperial prerogatives—independence from the expanding tsarist bureaucracy was no longer on the table. While Martin’s argument is difficult to dispute over the long run, the question of if or how to incorporate the biy court into tsarist administrative structures was a challenging one for the scholars and bureaucrats of the Russian Empire. The mid-nineteenth century, rather, was a time of contingency and ambivalence on this issue, the resolution of which had as much to do with the particularities of tsarist administration as what bureaucrats actually knew about customary law on the steppe.

Although the tsarist state pursued different administrative strategies in the Orenburg and Siberian steppes before the 1860s, its strategies with respect to the biy court were broadly similar in both. The Statute on Orenburg Kazaks of 1844 permitted biys to adjudicate only in criminal matters involving minor losses of property (less than 20 silver rubles in value) and civil suits worth less than 50 silver rubles. All other matters were subject to courts-martial (voennyi sud) or the final judgment of the Orenburg Frontier Commission. 55 Russian courts also functioned as an appellate instance above the biy court, to which dissatisfied Kazaks were permitted to turn.56 Although Speranskii’s rules of 1822 presented biys the right to judge in all civil matters among Kazaks [216], it also set the tsarist oblast administration above the biy court as an appellate body [218] and subjected biys to punishment for abuses of power [220].57 The overall gesture, as Martin puts it, was “to control and redefine the practice of adat to suit imperial purposes"58 Tsarist administrators attempted to bring the biy court under the supervision of imperial institutions as much as was feasible and practical.

By the 1850s, both of these arrangements appeared to be running into significant problems, prompting reform proposals from the Orenburg governor Katenin. Katenin reported that the relatively limited competency of the biy court according to the 1844 statute suited neither tsarist nor local Kazak administrators well. The former had difficulty conducting investigations, since the nomads of the Orenburg steppe could easily hide or flee, whereas the latter were most often illiterate, unaware of imperial laws and ignorant of what their superiors were asking of them. 59 Moreover, investigations of criminal affairs lasted for years, taxing the Frontier Commission’s limited resources and burying it in so much paperwork that it had little hope of catching up.60 The solution seemed to lie in a wholesale expansion of the traditional biy court. Matters taking place exclusively among the Kazaks, it seemed to Katenin, even cases of baranta, murder, and quite large civil suits, could be left to the discretion of the independent court of biys. Only when Kazak misbehavior left the bounds of the steppe or involved Russians was it necessary to involve Russian law and tsarist institutions.61 Such a change would eliminate needless paperwork, free the Frontier Commission to pursue more pressing matters, be more comfortable for Kazaks, and put the force of law behind the de facto state of affairs that already existed on the Orenburg steppe.

Katenin reasoned primarily as a practically minded administrator, and objections to his proposal had more to do with rough stereotypes of nomadic behavior or concerns with imperial prestige than any deep knowledge of the workings of the biy court. Justice Minister Viktor Panin and Dmitrii Bludov, head of the Second Section of His Majesty’s Own Cabinet, fretted about the position of Russians with respect to the Kazak court and the way this court would judge serious and violent crimes, respectively.62 When the matter reached Valuev in 1863 (after Katenin’s death), he agreed to the principles behind the reform but, beyond Panin and Bludov’s objections, disagreed that Kazaks could be trusted to come to independent judgments about murder and horse theft. If some expansion of the biy court was necessary “at this stage of [the Kazaks’] civil development," placing the tsar’s imprimatur on the payment of the kun (blood money, Kaz. qun) for murder was completely out of the question.63 Valuev rather endorsed, and submitted to the Council of State, a modified version of Katenin’s proposal, according to which the activity of the biy court would be both less extensive and further bureaucratized.64 Before the matter could advance further, though, thanks to a request for further consideration from Katenin’s successor, Bezak, it came to a standstill. It still remained unresolved in 1865, when the Steppe Commission was created.65

Discussion of such local initiatives took place, necessarily, in parallel with initiatives emerging from St. Petersburg in the era of the Great Reforms. In the discussions that led up to the implementation of Russia’s judicial reforms of 1864, providing for simplified, public, adversarial jurisprudence, it was necessary to determine the applicability of the principles underlying the new courts to regions outside of “European Russia” proper. To this end, in 1863, the Main Administration of Western Siberia commanded its bureaucrat of special orders, I. E. Iatsenko, in the company of the Russophone Kazak nobleman Chokan Chingisovich Valikhanov (1835-1865), to make a survey of public opinion among “honored people”—sultans, biys, and other influential Kazaks.66 The majority of Kazak elites in the Siberian steppe gave their assent to various forms of regulation of the biy court by the tsarist state, a view that Iatsenko reported in good faith.67

The next year, however, Valikhanov composed a scathing note (not published until 1904) on what he had observed during this study tour. Though the note was unpublished during the 1860s, in light of Valikhanov’s connections in St. Petersburg and Omsk, and its parallels with the views of other elite Kazaks that the Steppe Commission recorded, it is worth considering carefully.68 Valikhanov clearly believed that the combined weight of his life experiences allowed him to understand much better than Iatsenko what had taken place. Valikhanov could boast inside knowledge of Kazak culture, particularly the practices of its elites. At the same time, his years of experience of tsarist education in the school for military cadets (kadetskii korpus) in Omsk and his subsequent service (mostly scholarly) to the tsarist state lent him a familiarity with the core principles and goals of tsarist institutions. Thus Iatsenko, he charged, had naively believed that “Kazak opinion” was uniform and unproblematic. But in Valikhanov’s understanding, the wealthy and powerful sought to maintain, even increase their influence, and formalization of the traditional court of biys was simply another means for them to do so.6 9 The biy court, which Valikhanov evaluated positively as a speedy, informal, and impartial institution, could only have a positive role in Kazak life if it remained independent of a state which elites would doubtless try to co-opt. In Valikhanov’s view, then, the bureaucratization and regulation of the biy court promised no sort of civilizing mission, but continued and expanded abuses by the worst pretenders to the position—and the situation would remain so until Kazaks had developed further mentally and civilizationally.70 Thus an organ that was intended to slowly introduce a spirit of grazhdanstvennost' to the steppe would, because of the tsarist state’s failure to carefully consider local conditions, do exactly the opposite.71

Still, despite disagreements about the precise implementation, both local and central reform proposals now concerned themselves with which variant of the biy court would best suit metropolitan priorities. All of these discussions took place in the context of a strikingly positive appraisal of the biy court by tsarist administrators. True, some commentators considered Kazaks’ purported national weakness for bribery a strong case against the complete independence of the biy court.72 Yet others argued that, in areas with less governmental interference, “inviolable self-administration and the court of biys” were to be thanked for the Kazaks’ rapid development.73 Thus Valikhanov’s historicist insistence on the necessity of preserving the independence of the biy courts at the Kazaks’ present developmental stage was not simply the voice of a lone indigene crying out, unheard, for the preservation of national customs. Rather, there were real and widely shared concerns about the desirability of imposing Russian bureaucratic forms on Kazak customary law. Moreover, biys frequently appeared in Russian travelogues of the era as examples of the sort of local elites Russians could work with, as useful sources of information and confederates in a range of official and private missions.74 In short, if individual biys were fallible, and the precise status of this customary institution with respect to tsarist administrative organs remained open to question, there was genuine feeling in favor of its preservation in some form.

The archive of administrative debates which the Steppe Commission could draw on, and the opinions of its local informants, thus pointed strongly towards making the biy court, in one form or another, part of the steppe’s future. But this was largely a principled decision, based on a thousand-foot view of what the biy court was. Positive appraisals of the biy court took place with very little awareness of what Kazak customary law actually consisted of, beyond a few fragments. According to Martin, administrators in the Siberian steppe attempted to codify customary law no less than five times between 1838 and 1854, with none of the resulting collections passing muster administratively.75 Farther south, in Turkestan, the customary law of the Great Horde Kazaks had not even been codified by the mid-1870s, nearly a decade after it had been accepted as the basis of administration of the region’s nomads.76 What was known with certainty, though, was that the old compromise between customary law and imperial administration had obvious problems. Instead, bringing the biy court, with its supposed quickness and openness, into the orbit of the state aligned well with the priorities of tsarist jurisprudence during the era of the Great Reforms.

When the Steppe Commission was sent into the field in the summer of 1865, all discussion of judicial reforms among the Russian Empire’s Kazaks formally ceased, so that the commission could take it up anew. Years of documentation were forwarded to Girs, and members of the commission read these reams of ministerial and gubernatorial correspondence as a primary source concerning the recent history of the steppe.77 Their task would be framed by the research and debate that had come before them—only aware of the content of Kazak customary law in broad strokes, but generally enthusiastic about it, if only in a transitional role. But the duration of this transition, the degree of bureaucratization to which customary law should be subject, and the reach of the biy courts, all remained open to further study.

 
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