Libmonster ID: U.S.-1528

One of the most mysterious and poorly understood norms of customary law (adata ) Ishkil remains in the North-Eastern Caucasus. It has long attracted the attention of scientists. Materials about the Dagestani Ishkil were collected in the 19th century by the famous Russian legal historians M. M. Kovalevsky and PHI. Leontovich. In Soviet times , historians, ethnographers and lawyers wrote about Ishkil more than once. But no one went beyond the general statement of the question and did not even give a detailed description of this custom. In addition, scientists were mainly interested in the social content and origins of ishkil, rather than its legal forms. This work is the first attempt to analyze ishkil as a changing customary law practice in the historical context of the era of the Russian conquest of the North Caucasus in the XVIII-XIX centuries, from which most of the Arabic documentary sources about Ishkil1 have come down .

For readers familiar with the latest studies on customary law, the title of the article may evoke an association with a series of works about the baranth in the Kazakh steppe by the contemporary American historian Victoria Martin [Martin , 1997 , p. 249-270; Martin , 2001 , p. 140-155] 2 . This was done intentionally. The history of Ishkil and Baranta has a lot in common. In addition, my approach is close to the Martin method. At the same time, I did not try to translate for Dagestan the model of transformation of customary law into a colonial empire proposed by an American researcher. On the contrary , in the case of Ishkil, I wanted to show the reader that the course of development of customary law in the Caucasus Mountains did not necessarily follow the path it took in the Kazakh steppe. The legal reality and politics of the empire on its eastern fringes were much more mosaic than is usually thought. The chosen angle allowed me to touch on several riddles related to Ishkil in Dagestan. It has not yet been determined that this is a crime ,

1 This paper is a substantially revised version of the English report delivered at the conference " Customary Law (adat) between the State and Society. Central Asia and the Caucasus in Comparison with other Regions of the Islamic World", held at the University of Bamberg (Germany) on September 26-28, 2003. Its German version has recently been published, see: [Bobrovnikov, 2005, pp. 297-315].

The author is grateful to all his friends and colleagues whose advice helped a lot when working on the article, allowing us to correct its individual errors and shortcomings, first of all M. Kemper, S. N. Abashin, T. M. Aitberov, I. L. Babich, O. I. Brusina, T. Heineman.

2 The article published by V. Martin in the collection "Russian East", well-known to Russian historians and Orientalists, was subsequently reworked into the final chapter of her monograph on the colonial transformation of society and law among the nomads of the Kazakh Steppe in the Russian Empire. There is a recent Russian translation of the 1997 article, see [Martin, 2005, pp. 360-388].

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arbitrariness or law? And if the right , then what and for whom? How did Ishkil relate to Baranta and how did it change as the Russian conquest progressed? What are the similarities and differences in the attitude towards Ishkil of the Sharia movement of the XVIII-XIX centuries , the imamate of Nagorny Dagestan and Chechnya, and officials of the Russian Empire? What means were used in the fight against it? What can you say about Ishkil's heritage in the region?

Trying to find answers to the above questions, I turned to the extensive correspondence about Ishkil that was conducted in the XVII-XIX centuries between rural communities, their unions, khanates, Russian military and civilian officials in the North Caucasus. Most of the letters are written in Arabic and have not yet been translated into Russian. Publications of individual documents at best have an archeographic description of the manuscripts without analyzing their legal form and content. Sources on the history of Ishkil are divided into several types. The first and most numerous group of them are letters about specific cases of collecting ishkil. The second type includes various legislative acts, from treaties (Arab, ittifaq) to customary legal codes (Arab, daftar), including the famous Gidatli adats and the Rustem Khan Code. Important additional information is provided by fatwas on ishkil by local Muslim jurists, pre-revolutionary records management and legislation, as well as ethnographic descriptions.

Using equally all the above groups of sources, I relied mainly on unpublished cases of the Manuscript Collection of the Institute of History, Archeology, and Ethnography of the Dagestan Scientific Center of the Russian Academy of Sciences [RF IAE, op. 1, N 1260-1310, op. 2, N 402; f. 1, op. 1, d. 286, 289, 426, 444] in Makhachkala, where there are more than 100 original letters about Ishkil, their countless copies of the XIX-XX centuries.and several dozen adat codices from Nagorny Dagestan in Arabic and Turkic languages. In the appendix to the work, I publish seven characteristic letters about Ishkil, which I first translated from Arabic into Russian.

ISHKIL AND BARANTA

First of all, it is necessary to define what Dagestani Muslims understood by ishkil. Since at least the 15th century, this concept has been used in Dagestan to refer to the plaintiff's right to attack the defendant's fellow villagers and seize their property or themselves in order to force the defendant to pay an overdue debt or satisfy the plaintiff by fulfilling other obligations. A synonym for ishkil was the Turkic word baranta( baramta, barymta), which was understood in Dagestan differently than in Kabarda or Adygea in the North-West Caucasus, not to mention the Kazakh steppe and Central Asia [see: Radlov, 1861, p. 1481]. The differences between ishkil and baranta will be discussed in more detail below. In the meantime, let's see what specific cases of collecting ishkil are mentioned in the Arabic-language correspondence on the eve of the era of colonial conquests and reforms.

Among the letters about ishkil, we can distinguish four large groups of cases. These are: 1) private appeals of lenders to debtors from other communities with a demand to repay the debt under the threat of ishkil; 2) retaliatory claims of the defendant's communities for the purchase of seized property and people; 3) litigation over Ishkil at the level of communities and their unions (Arab, jaish, nahiyah, called by Russian authors of the early XIX century "free societies"); 4) cases of mountain nobility against Uzden community members who seized their property or subjects in Ishkil. These groups reflect the four levels of judicial power and law in the socionormative hierarchy of local Muslim society. Most of the documents belong to the 3rd group, a little less-to the 2nd. Below the privo-

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I have made translations of one characteristic letter about Ishkil from the cases of all four groups:

1) " Hajji Musa of Karah, residing in the village of Gotzatl, wishes eternal peace to the members of the village court ('ukala ') and the community (jama'a )of [the village of] Kahab Roso.

O just and just people! Tell your fellow villager Musa to give me a debt of one kurush 3 in the hands of its bearer, your fellow villager Muhammad son of Sulaiman, who is the holder of my ishkil (sahib ishkili ), or else let him come to the village of Gotzatl, where, according to the contract (wa'd ), the debt must be paid. If he does not pay [the debt] and does not come, then I will not return ishkil through the sender of this letter " [RF IAE, op. 1, N 1276].

2) " Most of the inhabitants of the community (jama'a ) are Haal, and especially Chitinav (Avar. Gyityinav. - V. B.), wish the majority of the inhabitants of the blessed society Aimaks, and especially Hama (Avar. XIama. - V. B.), peace, mercy and blessings of the Most High Allah. Amen.

We would like to inform you that we have conducted an investigation, looking for a person in our village who took a dagger from your fellow villager in the form of an ishkil (bism al-ishkil ), but did not find it and did not find out who it was. Since the circumstances are such, order your fellow villager to return our fellow villager's dagger to the hands of the bearer of this letter. We will try to do [the same thing] for your fellow villager, as is customary between people. [Property], on the contrary, will increase, if it pleases the Most High Allah! The rest and greetings you will hear from the mouth of the giver of this " [RF IIAE, op. 1, N 1269].

3) " Peace and blessings of Allah be upon you!

From the elders (ar-ru'asa' ) They were given to the noble brothers Imam and elders of Miatli (?). May Allah grant your thoughts!

Send Isil to us (Avar. "Isaev" - V. B.) Muhammad, and we will send together with him a man known for justice to the [union] of the villages of Karalal in order to establish the truth about the thief...4 Let him (Isil Muhammad - VB ) swear together with whoever is with him, and they will complete [the dispute] for the return of Ishkil without any excuses. You will know what will happen (at the trial) from Ibrahim. This is the best thing for you. Be healthy! " [RF IIAE, op. 1, N 1267].

4) " The Noble Lord Ruler (Hadrat al-Amir ) Eldar Khan beg wishes the members of the village court, the elders (al-Ukala 'wa-r-ru'asa'), the Hajji and the Qadi of the town (baldat ) Argwani peace, mercy and blessings of Allah Almighty.

May Allah, the Most High, protect them from all misfortunes! Amen.

Let it be known to you that we have captured in Ishkil the inviolable (mu'min ) bearer of a letter from your fellow villagers (shahsu-qom) to intercede for the property of one of our countrymen, Salman, which you seized in Ishkil, and then released him at the request of his kunaq, who promised to compensate us for the damage caused (daman ). Salman demands the return of the rifle and saber you took to Ishkil. But if you do not return this property, we will take Ishkil a second time and a third time, until this dispute is resolved and completed. It's within your capabilities. Be healthy! " [RF IIAE, op. 1, N 1272].

The documents cited above show typical cases of Ishkil capture. Most often, it was taken to compensate for losses on overdue debt obligations and cases of theft. Ishkil was also used in property disputes between spouses from different villages [RF IIAE, op. 1, N 1305] and in land grazing by cattle [RF IIAE, op. 1, N 1267ob., 1279, 1292]. Taking ishkil was allowed only outside of one's community. Following the talion norms characteristic of the Dagestani adat, they tried to capture an equal for the lost item: for a donkey - a donkey,

3 The Turkish piastre, which was used in the Eastern Caucasus at the end of the XVIII-beginning of the XIX century. along with the Russian 10-ruble silver coin.

4 One line of the email has been erased and cannot be read.

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for a bull - a bull, for a horse-a horse, for a dagger-a dagger, for a rifle-a rifle. Most often it was taken by cattle and weapons. As an ishkil, amanat hostages could also be captured , selling them into slavery in case of non-payment of the debt. The concept itself probably meant "seizure, seizure" 5 of movable private property (mulk 6).

The procedure for collecting ishkil involved performing the following actions, legalized in the local legal tradition. First, the plaintiff summoned the defendant to the court of their own or neutral community. If he did not show up, a letter was sent to the defendant's community with a threat to use ishkil. He was often driven by the plaintiff's coonack, who, according to custom, was obliged to protect the interests of his guest as his own. As "holder of ishkil" (Arabic, sahib ishkil ) he often seized property or hostages. Assault as opposed to highway robbery prohibited by Adat and Sharia (Arab, igara ) it was supposed to be made during the day and not from an ambush. At the same time, Kunaks again acted as gunners. This is evidenced by the severe sanctions that adat imposed for denouncing someone else's society [Aitberov, 1999, part II, pp. 99-100]. The case often ended in reconciliation-maslahat (Arab, sulkh ) and the return of ishkil.

M. M. Kovalevsky deduced ishkil from the "generic law" [Kovalevsky, 1890, p. 133], but, according to the correct remark of M. A. Aglarov [Aglarov, 1988, p.162-163], he did not provide convincing evidence for this. Indeed, our letters never mention the clan (Arab, kabila, in nah. "Doug. from Persian, tukhum ). The organizer and victim of ishkil was a rural community (jama'a ) or a confederation of communities (nahiyah )that included it or even the khanate. Using the well-known definition of Sally F. According to Moore (1973, p. 720), these institutions can be called the "semi-autonomous social field" of this custom. They defined the social space and the actors who became the organizers and victims of ishkil.

The military character of the pre-reform obishchna-Jamaat was reflected in Ishkil. Its full member could only be a warrior who bore the honorary title of uzden. In Mountainous Dagestan and Chechnya, this concept did not mean military nobility, as was the case in Bolshaya Kabarda and other regions of the North-Western Caucasus of the XVIII - first half of the XIX century, but free warriors-community members. The military forces of communities and their associations were built on the principle of a national militia. To repel the enemy or attack neighbors, the entire adult male population turned into a military unit. The militias of the villages were united in confederations, and those-in super-unions or khanates. It is not without reason that in the legal documents and correspondence of that time the concepts of "people", "community", "confederation" and "militia" (avar, bo, darg. khurebo, Andean igaa, gruz, and erie ) merged. They were translated into Arabic as " army, warriors "(Arab, ' askar, jaish, junud ). [for more information, see Bobrovnikov, 2002, pp. 30-31, 321]. There were frequent wars between communities and their alliances. In correspondence, there is an understanding of ishkil as a proper war [Aitberov, 1999, part II, p. 104].

The military nature of Ishkil makes it similar to baranta in the North Caucasus and the Kazakh steppe. The Kyrgyz also called baranta war (bu Nuly) [Grodekov, 2000, p. 128]. For both the Kazakhs and the Adygs, barantovanie took the form of a military campaign. #

5 The etymology of the term is not clear. The attempt of the Dagestani ethnographer M. A. Aglarov to build ishkil to the ancient Babylonian shekil is groundless [Aglarov, 1988, p. 159]. In these words, there are two different " k " - nsf in the first case and caf in the second. If you see ishkil as a translation of the local concept into Arabic, which is generally typical of the legal vocabulary of pre-colonial Dagestan, it is rather closer to the root sh-k-l: "confuse the animal" (shakkala ), "puty" (shikal). The term is used with the Arabic verbs "to take" (most often ahaza )., "captivate" (habasa ), "give away "(atlaka ), "return" (rudd ).

6 Although mulk belongs to the general categories of Muslim law, its existence in Dagestan during the studied period largely depended on the particular norms of the local adat. In general, the interweaving of concepts and practices of customary and Muslim law determined the situation of legal pluralism in pre-colonial and pre-revolutionary Dagestan.

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baranta covered a wider range of phenomena. Leontovich, summarizing the materials collected in the North-West and Central Caucasus, identified the following meanings of this concept: "a) cattle...; b) crime in the sense of ordinary robbery, forcible taking and taking possession of someone else's property...; c) military seizure, theft or full of people and livestock...; d) punishment in the sense of robbery or robbery, confiscation of property; e) seizure (before trial) of someone else's property to secure the rights of the creditor, also in case of unsatisfied personal resentment, material damage, theft...; f) a measure to ensure the execution of a court sentence...; g) the right of relatives of the murdered person to "barantovat" the property of the murderer until the execution of the bloodshed; finally, h) the right of the prince to take away property from subordinate people-uzdeney and chagar" [Leontovich, 2002, p. 299-300].

Only paragraphs e) and f) are suitable for ishkil. As already mentioned, ishkil was not associated with the Tukhum clan and therefore did not concern bloodshed. One of the letters explicitly states: "You can not take ishkil in a lawsuit against a murderer" [RF IAE, op. 1, N 1261, see Appendix 2 for the translation of the document]. Only if injuries and murders occurred during the attack, in addition to the return of ishkil, you were supposed to give vira (Arab, diya, Turk. red). In one of the letters of the end of the XVIII century. "Qadi and the nobility (Arab, kubara' ) The Tsudahara" ask the Akushin Kadi "to tell your fellow villagers to send someone to collect the scarlet for what happened between the Dargins, and to release the Ishkils (mest. Arabic: mn. asha'qil )" [RF IAE, op. 1, N 1262, for the translation of the document, see Appendix 3]. Blood feud and ishkil in pre-colonial Dagestan had clearly delineated legal fields. Therefore, in the adat codes, ishkil was usually placed between the articles on murders and injuries and fines for theft and damage to property.

BEYOND ADAT AND SHARIA

The conditions and procedure for applying ishkil were regulated by the obishchna Jamaat. In the XVII-XIX centuries it was gradually codified. The norms of ishkil were first defined in intra-and inter-communal agreements (ittifaq), and then included in the adat codes of individual jamaats and their unions. Along with other norms of the local adat, the struggle of the Uzden community members against the mountain nobility that occurred during this period affected the fate of Ishkil. It is not without reason that in Dagestan , on the eve of the Russian conquest, the adats about the ishkil of the Beks and Chankovs , on the one hand, and the Uzden community members, on the other, were distinguished [Aitberov, 1999, part I, p. 35]. A typical example of the Uzden agreement was concluded in Arkas in 1819 or 1820. Here is a part of it concerning the rules of accounting for promissory notes and the application of ishkil.

"...This is a clarification for the future. Residents of the villages of Mekhtuly (qom. Magdul. - V. B.), kumykov (kum. kumuk ) and all the Arakans (qom. Gyarakan. - V. B. ) made an agreement not to subject those of them who are not part of their community to Ishkil, but to settle cases and disputes among themselves as residents of the same village. Pay [debt] from property 8 in accordance with the noble Shari'ah or customary law (ra'em), collecting it from the defendant if he has property. If he does not have this property, let the defendant under the contract be handed over to the lender directly. This is decided by the Qadi and the members of the village court ('urafa'). The cadi and members of the court who fail to resolve the dispute within the community, fining the defendant in rubles (r-b-l , ?), will pay a ransom.

7 Chanks in Dagestan were called descendants from the marriages of beks and khans with women from Uzden. Their legal status was lower than that of the highland nobility. In the struggle of the commons with the nobility, the Chunks sided with the latter, although some of them went over to the commons. Among the major political figures of the first third of the 19th century, Imam Gamzat-bek belonged to the Chanks, who in his youth maintained close ties with the house of Nutzalov, but then broke with it and killed a family of Avar khans in the summer of 1834 in Khunzakh.

8 The original Arabic version says " real estate "(al-mal al-thabit), but it seems that this is a mistake, and we are talking about cattle. There are many Turkisms in the text, and in Kumyk mal means "small cattle". See: [Orazaev, 1989, p. 74; Aitberov, 1999, part I, p.97].

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(fidya) in the amount of som 9 in favor of the residents of the village. If, after the claim has been completed by them, the plaintiff takes an ishkil from a member of someone else's community, then a ransom of som will be paid on it. If the plaintiff has notified the villagers that his case has not been resolved by the members of the village court and the cadi, confirming this by an oral statement of his kunak, with whom he shared bread and salt (literally, "barley porridge"), and the latter has not tried to complete his lawsuit by bringing the claim to the members of the court, the cadi and the villagers, having applied all the forces to this, then a ransom of one som falls on the kunak ... " [RFPIAE, op. 1, N 1271].

Thus, ishkil was taken out of the scope of communal law (Arab. paradise ). Its scope was limited to "international" disputes between communities. Other agreements of the XVII-XVIII centuries prohibit the use of it between jamaats united in a confederation-nahmya. In this case, the debt was collected by rural performers who represented a kind of police (Arab, shurata', avar. gIelibi ) [Russian Federation IIAE, op. 1, N 1267ob., 1282, 1305; Aitberov, 1999, part I, pp. 33-34, part II, pp. 104-105]. Adat legitimized debt slavery in relation to faulty debtors, issuing them directly to the creditor. In addition, restrictions were imposed on the application of ishkil to community officials - judges-qadm, heralds-mangush, performers, shepherds, artisans and students-tam-muta'allim who were forced to travel a lot. Ishkil could not be taken outside the defendant's village. Such rules were introduced, in particular, by the Utsmiev adats in Kaitaga [Omarov A. S., 1968, p. 186, 189, 190].

There is one mystery connected with the codification of Ishkil. Moving from correspondence to agreements, and then to codes, it is impossible not to notice that the Ishkil is gradually disappearing from the pages of community legislation. The Rustem Khan Code, the Code of Decisions of the Union of Andalal and the code of the Union of Avars "Gifts of flowers slumbering in the courtyard of Adats of villages 10" still recognize the right of the creditor to recover the debt with the help of Ishkil through the elders of the confederation. For opposing the capture of ishkil or refusing to take part in it, a large fine was imposed [Khashaev, 1965, pp. 265-267, 63; Omarov A. S., 1968, pp. 179-182]. Slightly later Gidatli adats forbid taking ishkil without the permission of the elders [Gidatli adats, 1957, p. 20,40], and the vaults of Tsekob and other Avar villages, the compilation of which was completed by the second third of the XIX century, without naming ishkil, fine Kunaks for participating in it [Khashaev, 1965, p. 99. See also: Chronicle of the wars of Jara..., 1931, p. 66; RF IIAE, op. 1, N 1658].

Do not think that by this time the custom has disappeared. According to indirect data, many letters about Ishkil can be dated to the first and second third of the XIX century. One of them was written by Shamkhal Tarkovsky Abu-Muslim Khan, who ruled in 1836-1860. In the extensive correspondence of Imamat Shamil (1834-1859), I managed to find several letters related to Ishkil in one way or another. The imam himself repeatedly acted as an intermediary in the extradition of ishkil in exchange for the fulfillment of the plaintiff's claims [Omarov Kh.A., 2002, p. 95; Omarov Kh. A., 1997, p. 110, 116, 146, 174]. At the same time, the famous "Nizam" of Shamil never mentions ishkil, setting monetary fines for theft and securing the debt with all available property [Shamil's Code, 1992, pp. 13, 25-28. See also: Nizam Shamil, 1870, vol. III, pp. 1-18].

The fact is that the codification of Ishkil occurred at the time of the rise of the Sharia movement, which opposed local customs incompatible with Muslim law, primarily Ishkil. In the 18th century, individual Dagestani villages and their unions entered into agreements to bring the norms of civil and property law in line with Sharia law. The most well-known agreements of the meetings of the Union of Maintenance Workers are:-

9 Ottoman currency.

10 The latter source is better known under the false name "Code of Laws of Ummu Khan". In 2001, M. Kemper, working in the Russian Federation IAE together with the author of these lines, found a photocopy of the original code with the original title.

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mural (1710), the Gidatli village of Assab (1741-1742), the confederations of Akhty-para (before 1748), Akush (1748 - 1749), the agreement of the Kumukhs with Surkhai Khan II (1813) [Aitberov, 1999, part I, p. 36 - 37, 42, 44 - 71, h. II, pp. 105-106]. Certain norms of Muslim law were included in the adat codes. One of them, adopted at the meetings of the Zakatala Avars in Aghdam in 1751-1752, prohibited ishkil even in relation to foreign communities, obliging the Jars to resolve property claims either under Sharia or adat [Chronicle of the wars of Jara..., 1931 , pp. 66-67]. Muslim jurists have tried to take ishkil beyond both Muslim and customary law.

Letters about Ishkil were flooded with Islamic rhetoric. They called for the rejection of these "disgusting lies" and "illegal violence". For example, when addressing the Kudali community with a request to rein in the village that was subordinate to it, Karalal residents wrote:: "Indeed, the Maalalites have become arrogant with us and have repeatedly taken ishkili from our fellow villagers against what is permitted among the Muslims (min Ghayr Sabil al-Muslimin), even though we act according to the Muslim law, as our kunaq whom we are sending will tell you... to establish [the truth]... So order them to give up [what they have taken] from our fellow villagers in Ishkili, if you are just and law-abiding (in kuntum ashab al - ' adl wa-l-insaf). After all, you and I, like a back with a belly, are connected by descent from the same ancient ancestors, and there should be nothing between us but mutual friendship and love... Our speech is the speech of the magnanimous, not the rapists "[RF IAE, op. 1, N 1267ob.].

Numerous attacks against ishkil indicate both the delegitimization of this custom and its stability. It is interesting to note that among the victims and initiators of ishkil, there were often also adherents of sharia from among the rural kadis. The emails are full of these examples. For example, the Akushinsky kadi writes to Kadi Shamsutdin that the mare with the offspring stolen from him has been returned to him and he can release ishkil [RF IIAE, op. 1, N 1274]. His successor appeals to the Chuni community, asking "to order their fellow villager to release Imam Kuppa's ishkil" [RF IAE, op. 1, N 1287]. Most of the letters about ishkil are written on behalf of the qadis who defended the interests of their fellow villagers, and are addressed again to the qadis and village imams. Thus, even the supporters of the Sharia movement were involved in the confrontation over the issue of Ishkil.

ISHKIL ON THE OUTSKIRTS OF THE RUSSIAN EMPIRE

The Russian Empire also faced the problem of Ishkil in Dagestan. In the last third of the 18th century and the first half of the 19th century, the attitude of the Russian authorities towards this phenomenon changed dramatically. At first, they came to terms with barantovanie and even applied ishkil to violators of the law. As Thomas Barrett has well shown in his works, once in the frontier, the Russians were strongly influenced by local customs and customs (Barrett, 2000). So, in 1753, the owner of Kostek Alish-bek asked the Kizlyar commandant, Brigadier I. L. von Frauendorff, to confirm the "permission (furman ) to take a baramta in Aukh", issued by him to a certain Kantemir who came to Kostek from the Russians [Orazaev, 2002, p. 192,193]. Joining the system of confrontation with Ishkil, the commandant of the Kizlyar fortress, I. S. Vishnyakov, issued temporary passports to the people of Shamkhal Tarkovsky Murtad-'Ali in September 1783. yol kagyzlar) to travel through Russian possessions, "so that ishkil does not happen to them on the way" [Orazaev, 2002, p.374, 375].

But already in the first half of the 19th century, the Russian military authorities strongly opposed Ishkil, describing it as "arbitrariness". The general vision of the problem during this period strongly resembled the policy of the imamate discussed above. The characteristic of Ishkil in the note to the Russian translation of the Rustem Khan Codex is significant

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(1860):" This custom served as a reason for continuous robberies and robberies " [Omarov A. S., 1968, p. 177]. Here you can clearly feel the typical orientalist cliche of the time about the savagery of the highlanders and their predilection for robbery. By this time, Ishkil often received anti-Russian political overtones. Rural communities and confederations on the borders of the imamate and the Russian Empire used it as a means of political pressure on the mountain nobility (Beks , Chanks ) and the Muslim elite (qadis, ulama), who went over to the service of the empire. With the help of Ishkil, the elders of the jamaats tried to free themselves from paying new taxes to the Russians.

The situation during the Caucasian War (1817-1864) is well illustrated by one of the last letters about Ishkil, in which Shamkhal Tarkovsky Abu Muslim Khan demands that the Chirkey community return the cattle captured from him, threatening to bring the incident to the attention of the Russian military authorities:

"The noble Abu Mulim Khan wishes the Qadi, the just and pious people (al - 'ukala' as-sulaha'), and the Chirkei community peace and good luck from the Eternal Allah on the path of the sincere and faithful!

A mob of your fellow villagers seized twenty-one pairs of oxen from my men and imprisoned two of my men in the form of ishkil (bism al-ishkil). What an abominable thing you have done to my people, for I have never taken anything of your cattle or horses before, not even that taken from you by the begs (of Umar ) Turkkhali with the permission of my brother Shamkhal, and then returned to you according to the contract. I don't have your horses behind me, and I don't want to break the law on you. So why is this a bad thing? What will be the consequences if your actions become known to the Russian authorities? [I don't know] whether you are trying to deceive us and the Russians with false promises and false contracts, or whether what we have learned is the beginning of breaking promises and breaking contracts. If the former is true, then we, unlike the Russians, will not be deceived. On the contrary, Russians and I distinguish the virtuous from the wicked. If the latter is true, then who will support you when it becomes known about the resumption of the turmoil (fitna) that has already subsided? O beloved brothers, do not spread corruption and confusion. Silence the [voices of] the wicked. Return the captured cattle and people, so that your action does not make you regret what you did and does not lead you to losses. Think carefully! Truly, reason removes... and so on. Be healthy! " [RF IIAE, op. 1, N 1308].

The above document shows that when accepting Russian citizenship, rural communities and confederations promised not to apply ishkil on the territory of the empire, which was quite consistent with the principles of local adat. His relapses occurred while the Caucasian War was going on. But after the defeat of the imamate and the "pacification" of the mountaineers in 1859, the suppression of the last major anti-Russian uprising in 1877, Ishkil lost ground. His opponents were both in the Russian camp and among the imamate's supporters. After the end of the Caucasian War, most of Shamil's na'ibs and qadis remained in their posts in Nagorny Dagestan as officials of the indirect "military-people's administration" introduced here in 1860, in which local power was left in the hands of the local elite, who were placed under the strict control of the Russian military after the suppression of the 1877 uprising. The surviving Muslim elite of the communities unanimously supported the abolition of Ishkil.

More importantly, with the end of the Russian conquest, the semi-autonomous social fields in which Ishkil had previously been practiced were destroyed. The Muslim borderlands were becoming an inner region of the empire. By 1867, the last khanates were abolished on the territory of the Dagestan region. Rural confederations became administrative divisions of nine districts (naibstv, Arab. nahiyat ), into which the post-reform Dagestan was divided. From a semi-independent military-political entity, the jamaat was transformed into the main tax and judicial-administrative unit of the military-people's administration, which was being rebuilt into a peasant community according to the Russian post-reform model (rural community).

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location ). Rural militias were transformed into detachments of the irregular gendarmerie (mountain militia), and in the 1870s they were mostly disbanded.

The reforms deprived Ishkil of both legal and social support. By preserving judicial autonomy under customary and Muslim law11, the State created a new social field for them in the silent post-reform community. The confrontation between the community and the nobility has lost its significance. Having lost their former privileges, the mountain nobility was part of the Russian nobility. The Muslim spiritual elite in Dagestan did not receive, like other regions of the empire, a privileged status and gradually merged with the Uzden elite. According to the" Regulations on Rural Societies " of 1868, the village assembly and the verbal court, controlled by the foreman, could consider only civil and property claims (including loans, obligations and transactions) up to 100 rubles under Sharia, and "theft" and minor criminal offenses, the damage from which did not exceed 30 rubles, under Adat. [Draft regulation.. , 1898, p. 2 - 3, 8 - 9, 14]. The property disputes of Uzden with the nobility and between communities that led to ishkil passed to the district and Dagestan people's courts under adat and sharia law. Any disobedience to the authorities was punished by military courts according to the general laws of the empire [AKAK, 1904, pp. 436-437].

Customary law was also changing rapidly. In the 1950s and 70s, at the initiative of local authorities in the Dagestan and Terek regions, village assemblies revised the adat norms, canceling those that they found "harmful and inappropriate to the spirit of the present time" (Leontovich, 2002, p. 60). Among the" harmful adats", of course, ishkil was included, since then disappearing from the pages of adat codes, court cases, and even ethnographic descriptions of "legal life" [Leontovich, 2002, p. 41, note 2]. The speech against the "harmful adats" of the rural court from Temir Khan-Shura district is characteristic"They have a lot of things that the Russians might not like. If we do not rush to remove or correct some of the adat, we will probably wait for the day when we lose the right to solve our household affairs according to adat through them." This speech greatly agitated the assembly, and only after the kadi's speech in support of Adat was the proposal rejected [Amirov, 1873, p. 40].

INSTEAD OF CONCLUSION: THE LEGACY OF ISHKIL

As a result of Russian conquests and reforms, by the end of the 19th century, Ishkil was disappearing from the everyday life and even the language of Dagestani Muslims. Already at the beginning of the 20th century, the meaning of this word became incomprehensible to the majority of Dagestanis. For several decades, the Russian Empire has achieved something that neither the leaders of the Sharia movement of the XVIII-XIX centuries, nor the medieval ulema, who fought against Ishkil for centuries, could achieve [Bobrovnikov, 2002, p. 61. See also: Shikhsaidov, 1999, p. 10]. How did she do it? Why did Ishkil not follow the path of baranta, which, as Martin showed on Kazakh materials, adapted to the new colonial order, while losing its former legal significance in resolving disputes between clans and communities? Moving into the sphere of relations between Muslim communities and the state, barantovanie turned into horse theft, a new adat and scourge of colonial society, which neither the Russian Empire nor the USSR could cope with for decades [Martin, 2005, p. 376].

I do not want to question the conclusions that the American researcher came to in her work. My thesis is different. The fate of Ishkil shows how diverse the development of Muslim society and its culture was.

11 On the "Project on the administration of the Dagestan region" (1860), "Legal proceedings in the Dagestan region"... according to adat and Sharia, and according to special rules that are gradually drawn up based on experience and the need for them that develops..."[Acts..., 1904, p. 435].

page 13

rights that have adapted to the new conditions of life in the borderlands of first the Russian and then the Soviet Empire. The experience of any particular fringe of the Empire should not be absolutized. Neither the Kazakh steppe nor Mountainous Dagestan provide us with a universal example of the colonial transformation of customary law and local Muslim society under Russian reforms. After all, even the regime of military-people's administration, conceived for the entire Caucasus region, was more or less implemented only in the Dagestan region. Other regions of the North Caucasus were taken over by the Ministry of War in 1882, and an all-Russian provincial administration was established in Transcaucasia [see: Bobrovnikov, 2002, pp. 166-171].

The reasons for the disappearance of Ishkil in Dagestan, as already mentioned, were the destruction of the semi-autonomous social fields of the pre-colonial jamaat and Muslim khanates, as well as the position taken by representatives of the Muslim spiritual elite, into whose hands power over the community passed. Ishkil was a characteristic practice of the Muslim frontier of the empire, which was to die out after Dagestan was behind Russian lines. In addition, the fate of adat in pre-revolutionary Dagestan did not develop in the same way as it did in the Kazakh steppe and even in Chechnya, Kabarda or Adygea, which were not so far from it. On the one hand, these areas did not have the eighteenth-century Sharia movement that swept through Mountainous Dagestan and led to the creation of the imamate, which for almost a quarter of a century resisted the pressure of the Russian Empire. On the other hand, 19th - century Dagestan did not experience any mass emigration of peaceful mountaineers to the Ottoman Empire, nor did it experience any migration from Central and Southern Russia.

The state continued to fight the baranta until the Soviet era. In 1928, it was included in the list of "crimes that constitute remnants of ancestral life" (X chapter of the Criminal Code of the RSFSR). Ishkil did not fit in with the Muslim resistance to the Imperial authorities and gradually disappeared in the XIX century. Only its individual elements - a raid with the abduction of cattle and hostages, horse theft-remained in Dagestan until the end of the XX century. During the periods of the weakening of the state during the two Russian revolutions, the Civil and Patriotic Wars, and the two post-Soviet Russian-Chechen military campaigns, all parties involved in the conflict made extensive use of such actions [for more information, see Bobrovnikov, 2002]. Rural gangs specialized in horse theft and hostage-taking operated in remote mountainous areas of the region. A new surge of criminal activity began in Northern Dagestan and Chechnya in the 1990s. But even in the pre-revolutionary era, all these actions ceased to be associated with ishkil.

Not fitting into the imperial colonial system, ishkil, unlike baranta and blood feud, avoided becoming a new "colonial offense". Ethnographers and politicians have not tried to construct new "useful" customs based on it. He was not affected either by the ambitious project of supporting the adat based on the Jamaat community developed during the viceroyalty of Prince A. I. Baryatinsky (1856-1862) and implemented under his successor, Grand Duke Mikhail Nikolaevich (1862-1881), to the detriment of Sharia and Muslim insurgency, or by attempts to replace the colonial adats with "revolutionary" Sharia in the first decade neither the campaign of creating councils of elders during the "stagnation" of the 60s-70s of the XX century, nor the attempts of the post-Soviet authorities to rely on the revived Muslim community and the "useful adats" of mountaineers. Ishkil belongs to those pre-colonial adats that are inconvenient and difficult to remember today.

page 14

application

LETTERS ABOUT ISHKIL (translated from Arabic)

1. " From Ramadan of Barshamay...12 Aci Harakinsky

Peace and blessings of Allaah be upon you. May Allah protect you from the evil of Satan. Amen 13 .

With the receipt of this letter comes the debt lent to you in accordance with your contract and known to my kunak (daif) [named] Utsisai 14, who will deliver this letter to you. Otherwise, I will take ishkil through it, as it is allowed to take. You will hear the rest from the mouth of the sender of this letter. And back 15 hello " [RF IAE, op. 1, N 1260, undated, probably XVIII century].

2. "From the great and just elders (Minru'asa 'wa kubara' wa 'urafa') of the Sioux to the great and just elders and the whole community (Jama'a) of the Kilatlin (Avar. Kilal. - V. B.) endless and countless greetings.

Find out that the person who delivered this letter, Muhammad Hanilaw, is a close relative (Karib) the murdered man. He has [the right] for his tukhum (kara'ibu-x) to kill the assassin and pursue him. You can't take an ishkil in a lawsuit against a murderer. So help me get his donkey back, if you are fair" [RF IIE, op. 1, N 1261, undated, probably XVIII century].

3. " Kadis and nobles (kubara! Tsudahara people greet the noble Imam Qadi Akusha.

Tell your fellow villagers to send someone to collect the scarlet 16 for what happened between the Dargins and release the Ishkils (asha'qil ). After all, you will understand a lot from this little" [RF IIAE, op. 1, N 1262, undated, probably XVIII century].

4. " From the rulers (wula ) Tsudahara to the rulers of Usisha. Greetings to you and the mercy of Allah.

Tell your fellow villagers to release [the people captured in] Ishkil, because they were taken illegally. After all, one of your fellow villagers swore an oath (shahada ) for another, his testimony was accepted and listened to by the Dargins. It was decided to obey and, according to his testimony, the decision of the Dargins was made. Be healthy! " [Russian Federation IIAE, op. 1, N 1263, undated, probably XVIII century].

5. " Peace and blessings of Allah be upon you! May Allaah be Most Gracious and Merciful.

From elders, nobles (min ru'asa 'wa kubara' ) and the whole society (jama'a ) Hahita (avar. Khwa-xumla. - V. B.) to the imam, elders, nobles and the entire society of Meusish. Let the boys grow up in their cradles, and let the dead rest in their graves! Amen 17 .

We want you and the best of you to order the release of 18 [captured in] Ishkil from our fellow villager, who is your (Imam Meusish - V. B. ) kunak (dayf bi-ka) , and not to make us illegal (bi-gair sabil ) violence. By God, we will make sure that our fellow villager settles the debt, truly, we will not find anyone who knows and does not think of excuses in favor of this disgusting lie (ishkil. - V. B.). We swear by the Great Allah that we will stop taking ishkil after this. You give what you have captured from our fellow villager into the hands of the bearer of this " [RF IIAE, op. 1, N 1264, undated, probably XVIII century].

6. "In the name of Allah, the Most Merciful, the Most Merciful!

12 At this point, the document is torn and two words cannot be read.

13 The transition to the content of the document here and in other documents is marked by the standard phrase va ba'd ("And then") highlighted in a larger handwriting, which has the untranslatable syntactic meaning of a red line.

14 The word is written in ' ajam and announced.

15 Letters, " greetings from CAF to caf "(reverse order of two adjacent letters of the Arabic alphabet).

16 Turk, "vira for shedding blood". Also known as Arab. diya.

17 The transition to the content part of the document is marked with the word "then" (amount).

18 After this word is probably written in error and crossed out the phrase "our fellow villager".

19 Under the words "fellow villager" and "who" there is the same syntactic symbol in the form of the letter mim, indicating that one word refers to another. For more information, see [Barabanov, 1945].

page 15

The great and just elders (Ru'asa 'wa Kubara' wa 'Urafa') of the Tokid people (Avar. TIokIal. - V. B.) [send their] dear brothers and faithful friends, the great and just elders and the majority of the Inhelo community 20 greetings 21 and [wishes] of eternal mercy [from Allah]. Amen 22 .

We also want you to order your fellow villagers to stop taking ishkil from our fellow villagers on the basis of false arguments and to move from ishkil to the complete end of the litigation. We will strive to solve it according to the noble Sharia or the usual adat (paradise).23 . Be healthy! " [RF IIAE, op. 2, N 402, undated, most likely XVIII-early XIX century].

7. "From the qadis, elders (ar-ru'as'), and nobles (al-kubara' ) and other men (ash-shubban ) [union] of the villages of Karalal to the Qadi, elders, members of the village court (al - 'ukala' ) and to the other [residents] of the city of Kudali, endless greetings, while Arcturus shines, good luck and good news!

Indeed, the Maalalites have become arrogant with us and have repeatedly taken ishkili from our fellow villagers against what is permitted among the Muslims (min Ghayr Sabil al-Muslimin ), even though we have acted according to what is customary among the Muslims, as we inform you verbally through the Kunaq (ad-daif) that we send to you personally and others from your [society] in order to establish [the truth] from the story of a trustworthy one (al-sawiq )24 kunaka. So order them (the Maalalites ) to give [what they have taken] from our fellow villagers to Ishkili (bi-itlaq asha'qil Rijalina ), if you are just and law-abiding (in kuntum Ashab al - ' adl wa-l-insaf). After all, you and I, like a back and a belly, are connected by descent from the same ancient ancestors, and there should be nothing between us but mutual friendship and love... our speech is that of the magnanimous, not the violent.

The rest you will learn from the mouth of this messenger (ar-rasool), whom We have sent to you, desiring you to deal with them (the Maalalites ) according to the law( al-Haqq), for they are one of your communities (ta'ifa minkum ), so take a closer look at them. to their speeches" (RF IAEE, op. 1, N 1267ob., undated, probably XVIII century).

list of literature

Aglarov M. A. Rural community in Nagorny Dagestan in the XVII-early XIX centuries. Moscow, 1988.

Aitberov T. M. Chrestomatiya po istorii prava i gosudarstva Dagestana v XVIII-XIX vvakh [A textbook on the history of Law and the State of Dagestan in the XVIII-XIX centuries]. Makhachkala, 1999.

Acts collected by the Caucasian Archeographic Commission (ACAC ). Vol. XII. Tiflis, 1904.

Amirov G. A. Sredne gortsev Severnogo Dagestan [Among the mountaineers of Northern Dagestan]. Issue VI. Tiflis, 1873.

Barabanov A.M. Explanatory icons in Arabic manuscripts and documents of the North Caucasus // Soviet Oriental Studies. Vol. III. M.-L., 1945.

Barrett T. M. Lines of Uncertainty: the North Caucasian "Frontier" of Russia / / American Russian Studies: Milestones of Historiography in recent years. The imperial period. An anthology. Samara, 2000.

Bobrovnikov V. O. Moslems of the North Caucasus: custom, law, violence. Moscow, 2002.

Gidatlin adats. Published and translated by S. J. Saidov, edited by Kh. - M. O. Khashaev. Makhachkala, 1957.

Grodekov N. I. Kyrgyz and karakirgiz of Syrdarya region // Steppe law. Comp. by A. A. Nikishenkov, Moscow, 2000.

Kovalevsky M. M. Law and custom in the Caucasus. Vol. 2. Moscow, 1890.

The Shamil Code. Makhachkala, 1992 (reprint of the pre-revolutionary Russian retelling of the Imamate's legislation).

20 The word is written in ' ajam and announced.

21 After the word salam, a new line begins with ' alai , and on the next line the entire ending of the phrase ('alai-kum) is written again. With a certain grace of handwriting and a good knowledge of the Arabic language by the author of the letter, spelling mistakes are frequent in this small document and carelessness is generally noticeable when compiling it.

22 The passage to the content of the document is marked with the standard phrase amma ba'd ("And then"). with the syntax value of the red string.

23 In the words "shari'ah" and "adat", the notary put an extra alif in the article by mistake.

24 Probably a typo instead of al-wasik.

page 16

Leontovich F. I. Adaty kavkazskikh gortsev [Adats of the Caucasian mountaineers]. Issue I. Nalchik, 2002 (reprint of the Odessa edition of 1882 ".).

Martin V. Barymta: Custom in the eyes of nomads, crime in the eyes of the Empire // The Russian Empire in Foreign historiography. Works of recent years: An Anthology. Comp. by P. Vert, P. S. Kabytov, and A. I. Miller, Moscow, 2005.

Nizam Shamil // SSKG. Issue III. Tiflis, 1870.

Omarov A. S. From the history of the law of the peoples of Dagestan. Makhachkala, 1968.

Omarov H. A. 100 letters of Shamil. Makhachkala, 1997.

Omarov Kh. A. Samples of Arabic-language letters of Dagestan of the XIX century. Makhachkala, 2002.

Orazaev G. M.-R. "The Petition of the Kumyk Nogais" of 1860, as a historical and ethnographic source / / Written monuments of Dagestan of the XVIII-XIX centuries. Makhachkala, 1989.

Orazaev G. M.-R. Monuments of Turkic-language business correspondence in Dagestan of the XVIII century. Experience of historical and philological research of documents of the Kizlyar Commandant Foundation. Makhachkala, 2002.

Monuments of customary law of Dagestan of the XVII-XIX centuries. Comp. Kh. - M. O. Khashaev, Moscow, 1965.

Draft regulations on rural societies , their public administration and state and public duties in the Dagestan Region I Khazihi kawa'id fi bayan jama'at kura wilayat ad-Dagestan wa-fi tadbir umuri-him wa-l-hukuk al-wajiba 'ala akhali al-kura li-l-fadishahiyya wa li-l- jama'a. Temir Khan Shura, 1898.

Radlov V. Experience of the dictionary of Turkic dialects. Vol. 4. Part 2. St. Petersburg, 1861.

Manuscript Collection of the Institute of History, Archeology, and Ethnography of the Dagestan Scientific Center of the Russian Academy of Sciences (RF IIAE ). F. 16 (Letters).

Chronicle of the wars of Jar in the XVIII century. Trans., comm. by P. Juze. Baku, 1931.

Shikhsaidov A. R. Akhmad al-Yamani // Islam on the territory of the former Russian Empire: an encyclopedia. Comp. SEE Prozorov. Issue 2. Moscow, 1999.

Bobrovnikov V. O. Verbrechen und Brauchtum zwischen islamischem und imperialem Recht: Zur Entzauberung des i?kil im Daghestan des 17. bis 19. Jahrhunderts // Rechtspluralismus in der islamischen Welt. Michael Kemperund Maurus Reinkowski (Hrsg.) Berlin, New York, 2005.

Martin V. Barymta: Nomadic Custom, Imperial Crime // Russia's Orient: Imperial Borderlands and Peoples , 1750 - 1917 , Daniel Brower and Edward Lazzerini (Eds.) Bloomington, 1997.

Martin V. Law and Custom in the Steppe. Richmond, 2001.

Moore S. F. Law and Social Change in the Semi-Autonomous Social Field as an Appropriate Subject of Study // Law and Society Review. 1973, N 7.


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