Ethnography of Law and Justice in contemporary Kyrgyzstan. The phenomenon of kun.
1. Research Topic and Research Questions
How people resolve conflicting interests and how situations of strife are remedied is a problem which all societies have to deal with. Usually people find not one but many ways to handle grievances. Especially, in a society with predominantly Muslim population such as Kyrgyzstan, where the state after seventy years of Soviet dominance became a self-serving and incompetent system, one may argue there are different constellations of plural normative orderings and multiple jurisdictions. The pockets of law and justice are adjudicated based on religious and traditional legal norms, as well as on local meanings of these terms among people. The different ‘do-it-yourself’ forms of redress which we wetness more and more could be often quite different from the official state-codified law. They may introduce unequal legal standards thus undermine internationally recognized civil and human rights.
The facts about the fragile and incapable official administrations are known and researched, so I would like to move on to the real issue here: what are the local perceptions of law and justice, which are actualized into social life in terms of discourses and practices of negotiation in the context of contemporary Kyrgyzstan. How can social relations between groups and individuals be described, who get drawn (often totally accidentally and unwittingly) into events that strongly invoke the concept of justice for them and the ensuing search for its actualization or attainment? How do people make justice – as locally defined and expressed – and how does this happen in relation to everyday realities?
Last but not least, what is the place of Islam or Muslim cultural patterns and references within the legal issues of ordinary citizens? This does not mean that I will be looking for Islam or Muslim cultural patterns in a place like contemporary Kyrgyzstan. The objective is rather to have a better awareness of how little or much significance do the religious faith has within different dimensions of narrative and practice in the social world of my interlocutors.
2. Research Focus
In order to answer the research questions, I want to focus on the phenomenon of kun which means “blood money” or “blood price”. Based on my observation it might be very often practiced alternative system beyond the state. According to available information about customary law (adat) in pre-Islamic and pre-Russian times, kun should have replaced a vendetta which was sanctioned in earlier times in order to release the perpetrator from the possible persecution and revenge, thus to anticipate a long-running feud between families and tribes. It was defined by certain amount of livestock –the most valuable good of the nomads (Levshin 1832: 171). During the Soviet period kun as the whole adat was officially abolished and was not supposed to exist anymore (Akhmetova 1979: 18). Accordingly, there are no written records and any references on it. After independence, customary law generally seemed to regain importance; however, there are almost no research projects which deal with kun. Due to the volume of reference material, which I have hitherto collected, kun can be regarded nowadays as a widely accepted form of compensation and punishment. It is usually invoked in judgment processes following different cases with severe consequences like death and heavy physical injury. As some cases that I have collected have demonstrated (e.g. to buy a house for the family of the victim who was hit by car), the kun is one of different ways to make justice happen. The decision on the amount of kun reflects the structure of the society: the relationship between the parties, their social background, each person’s location in the system of ordering, their kin connections, residence, and occupation play certain roles and will be taken into account by the mediators and judges as evidence as to the likely way that the person acted in any situation.
3. Theoretical Concept and Methodological Approach
This research project is theoretically embedded in the study of legal anthropology, which, broadly speaking specializes in the cross-cultural study of the legal dimension and social ordering of human society. Among the important formative influences coming from within the legal field itself were studies in history of law and comparative jurisprudence (ancient law of Meine) ethnographic studies of law and analyses of ‘traditional processes’ of dispute settlement. Further development of the discipline was through the notion of legal pluralism, understood as a presence of numerous normative orderings in a social field (F. von Benda-Beckmann 2008: 99). This could be an interesting starting point for this anthropological study as well, because in case of Kyrgyzstan and especially through the focus on kun, we will learn a complete range of systems that affect the management of conflicts in a given jurisdiction and the relationships of the variant legal systems in a particular jurisdiction.
What enables legal anthropology to study the legal dimension of human life is first and foremost the examination of actual relations into which people enter by following or breaking laws, the questioning of actual legal disputes that arise between people. Therefore, an attempt will be made to thoroughly describe some particular cases and exemplary events – the process of arriving at a judgment, as the local people return a verdict (e.g. kun), and what thoughts or values are behind these verdicts. In terms of actual experiences, the guiding questions to be reflected upon are how people seek redress within their societal rules and through which practical mechanisms they prefer to resolve their legal issues. Another interesting questions regards the value that is assigned to kun in search for justice and what the local perception is regarding its historical origin.
This study rests on the practices of ethnography grounded in fieldwork: participant observation and semi-structured interviews as well as a free conversation. Moreover, as I deal with real cases and social events, each of which demands special interaction, negotiation of individual interests, different interpretation of social rules and norms, shaped by the actual and unique behavior of individuals, the ‘case study method’ is an appropriate method for my research. The ‘case study method’ was initially developed by Llewellyn and Hoebel (1941) as a means of determining legal practice of ‘trouble cases’, including mediation and negotiation as well as adjudication. Through the analyses of real cases, they intended to find out how the law is conceived of in social systems without formal courts, and how social interaction infers rules and assumptions used in trouble cases: “The case method leads to realistic jurisprudence … Law focuses around conflicts of interest” (Hoebel 1954:36). As conceived by Gluckman (1958) the case method places less emphasis on identifying structural regularities and more on detailed analyses of social processes wherein individual strategies and contradictory, inconsistent standards and rules reveal the context of everyday life. In sum, the extended-case method is actor-, action-and process-oriented.
Erstgutachterin: Prof. Dr. Ingeborg Baldauf
Zweitgutachter: Prof. Dr. Toni Huber
Drittgutachter: Prof. Dr. Roland Hardenberg