Legacy and Legality in Central Asia

IIAS Newsletter 34 in July 2004 contains three short articles presenting historical overviews of Central Asian law. Longer versions will appear in a Journal of Asian Legal History monograph entitled Central Asian Law: An Historical Overview (October 2004). Here are substantial excerpts from the article by Irina Morozova on "Legal systems and political regimes in post-socialist Central Asia" (in PDF format). It is all I can do to resist quoting the whole thing. It does a good job of sketching fundamental contradictions facing newly independent Central Asian nations today.

Traditional systems of law informing current practice include customary law (adat) and religious law (Sharia except in Christian Georgia and Armenia and Buddhist Mongolia). Adat has proven remarkably stable while Sharia has survived the centuries; they are closely linked and often identified as one. Customary law, functioning in the form of strong communal relationships and the awarding of social status according to age and kinship hierarchies, is strong in rural areas and exists in modified form in the cities. Religious systems of law in post-Soviet societies are weaker; seventy years of secular education have left their mark. While the new independent states all proclaim themselves to be secular republics, ideas of Muslim law are still alive. Sharia, however, is no longer in serious use. [A little optimistic, perhaps?]

Of the social institutions informing customary law, the social class of agsakals has been especially durable. At the top of the social pyramid resides the agsakal, an old man seen as experienced and wise; his decisions are to be followed by family and community. The institution of the agsakal is legally recognized in Turkmenistan where it is called The Council of Agsakals. In Mongolia, often called the most open and democratic country in Asia, respect for agsakals still persists, albeit in weaker form. The social group also survives in the Eastern and Southern regions of the Russian Federation – Buryatia, Tuva, Kalmykiya, Tatarstan, and especially in the Northern Caucasus.

Customary law is also reflected in the system of clans, very much alive in the contemporary politics of Central Asia and the Southern Caucasus. In the beginning of the 1990s the struggle between clans in Tajikistan became so acute that it led to civil war. One of the threats to the rule of the President of Turkmenistan S. Niyazov is consolidation of an oppositional clan. The Uzbek President I. Karimov regularly purges members of the Samarkand, Tashkent and Bukhara clans from his administration. In Kazakhstan, strategic industries and the most profitable sectors of the economy belong to, or are controlled by, members of the presidential family and their relatives. The principle of social-economic redistribution among members of the clan is one of the main obstacles to the development of Western-style legal institutions. Clan identity ill fits individually based democratic conceptions of law; the effective application of the latter is routinely sacrificed to the pursuit of clan interests.

The Soviet legal system imposed on the Central Asian and Caucasian peoples had a certain modernizing effect on traditional societies. While Soviet legal institutions appeared Western, they did not work in practice the way they were supposed to on paper. While social systems based on clan patronage and kinship were criticized during the Soviet period, they did not disappear – they adjusted themselves to Communist state-party hierarchies. By the 1960s, the reform of administrative systems was complete; clan relationships and the social cult of the agsakal had mutated into the structures of national nomenclatura....

The Soviet legacy
To date, debate on the state of law has focused on overturning the Soviet legacy. Concepts of legitimacy and law are now expressed in terms of democracy, civil society, human rights and the market economy. These concepts serve as antonyms to another range of terms: Soviet one-party system, totalitarian state, communist ideology and planned economy. Post-Soviet politicians, journalists and populists, perhaps believing that the new terms reflect acquired sovereignty, juggle them for career purposes. The active use of the democratic lexicon, however, has yet to further the understanding, much less the application, of democratically based law....

The past legitimizes
Central Asian intellectual elites play a significant role in developing legal concepts. During the late Soviet and post-Soviet periods, university professors and scholars in academies of science aspired to political influence; sociologists, historians and philologists now advise politicians. Academics are charged with developing discourses of nationhood and national development, and to emphasize their democratic and legal nature. [A formula for self-delusion?]

Concurrently governments appeal to the legacy of ancient and medieval Central Eurasian empires and khanates. There are simply too few regional analysts able and allowed to write on the essential contradictions between the political culture of the medieval khanates, the successors to which the present states pretend to be, and the democratic civil societies that they claim to be building.... Here we may be witnessing a modification of customary law: the more ancient the history of the nation, the longer the genealogy of the ruler, the more lawful the regime.