Download Mongol Law: New Questions and New Approaches

Mongol Law:
New Questions and New Approaches
Kyoto University Rakuyu Kaikan, 26‒27 February 2015
Conference Program
Thursday, 26 February 2015
09.00‒09.20
Registration
09.20‒09.30
Welcoming Remarks
09.30
Panel 1: State, Law, and Governance
Chair: Dorothea Heuschert-Laage
09.30‒10.30
Legal Traditions and State Governance in the Crimean Khanate
Oleksiy Kresin (National Academy of Sciences of Ukraine, Ukraine)
10.30‒11.00
Tea Break
11.00‒12.00
Jarghu and Jarghu Judgments in the Mongol Empire
N. Chogt (Inner Mongolia University, China) ※
12.00‒13.30
Lunch Break
13.30
Panel 2: Social Formation and Administrative System under the Rule of
‘Foreign’ Empires
Chair: Frederic Constant
13.30‒14.30
The Qing Administrative System in Mongolia in the 18th and 19th Centuries: A
Comparison with the Russian System in Kazakhstan
Roman Yu. Pochekaev (National Research University Higher School of Economics
in St. Petersburg, Russia)
14.30‒15.30
Political Units and Administrative System in 18th Century Transbaikal Buryats
Tsongol B. Natsagdorj (Mongolian Academy of Sciences, Mongolia) ※
15.30‒16.00
Tea Break
16.00
Panel 3: Land Law and Land Policy in Post-Socialist Mongolia
Chair: Oleksiy Kresin
16.00‒17.00
Land Laws and Land Politics in Post-Socialist Mongolia
Orhon Myadar (The University of Arizona, USA)
17.00‒18.00
Problems Concerning the Reception of Land Law in Post-Socialist Mongolia:
An Investigation Focused on Agricultural and Pastoral Land
Yoshiki Kurumisawa (Waseda University, Japan)
18.10
Reception
Friday, 27 February 2015
9.30
Panel 4: Judicial System and Practice at the Local Levels
Chair: Erdenchuluu Khohchahar
9.30‒10.30
Legal Reasoning of Mongolian Judges under the Qing Dynasty
Frederic Constant (Paris University, France)
10.30‒11.00
Tea Break
11.00‒12.00
Justice in the Chahar Banners between 1736 and 1761
Mongolkhuu Bayuud (Waseda University, Japan) ＊
12.00‒13.00
Lunch Break
13.00
Panel 5: ‘Rights’ and Rules
Chair: Roman Yu. Pochekaev
13.00‒14.00
Disputes over Succession: The Interplay between Official and Unofficial Law in
18th Century Mongolia
Dorothea Heuschert-Laage (University of Bern, Switzerland)
14.00‒15.00
Property Inheritance in the Qaračin Region of Inner Mongolia during the Qing
Period
Huhmuchir Borjigin (Tohoku University, Japan) ＊
15.00‒15.30
Tea Break
15.30
Panel 6: Social Stratification, Class, and Law
Chair: Orhon Myadar
15.30‒16.30
Home Slaves and Legislation in the Qalq-a during the Qing Period
Oyunjargal Ochir (National University of Mongolia, Mongolia)
16.30‒17.30
Classifying the People: Social Status and Hierarchal Order in 17th to 20th
Century Mongolia
Erdenchuluu Khohchahar (Kyoto University, Japan)
17.30‒18.00
Concluding Discussion: Subjects and Methodologies of the Discipline
18.00‒18.10
Closing Remarks
※
indicates that the presentation is in Mongolian, and ＊ in Japanese.
This conference is:
Convened by Erdenchuluu Khohchahar
Sponsored by the Kyoto University Foundation and the Hakubi Project of Kyoto University
Attendants must be registered with their name and affiliation by 23 February 2015 via:
[email protected]
Mongol Law:
New Questions and New Approaches
Kyoto University Rakuyu Kaikan, 26-27 February 2015
PAPER ABSTRACTS
Panel 1: State, Law, and Governance
Legal Traditions and State Governance in the Crimean Khanate
Oleksiy Kresin
National Academy of Sciences of Ukraine, Ukraine
The Crimean Khanate was created by Tatar and Mongol people in the 15th century. Because of
non-Tatar ethnic dominance, involvement in ethnic mixture processes, and complex processes of
Khanate attachment to the Ottoman Porte imperial system, the Tatars gained new local selfidentification as Crimean Tatars, but preserved the consciousness of their roots, the panMongolian integration idea, and key principles of administrative system. An even more difficult
process characterized the Nogai Tatar peoples in the Khanate. The Crimean Tatar state presented
at least seven traditions and types of administrative and judicial organization that made it more as
a characteristic for the Middle Ages period fragmented sum of law, which was not a coherent
political and legal system. They are: (a) pure nomadic Mongol and Tatar traditions based on the
Great Yasa and steppe customary law; (b) new type of Crimean Tatar’s institutional and material
customary law; (c) Muslim Sunnite law; (d) Ottoman law; (e) millet system for non-Muslim
ethnic communities; (f) law of Cossack political bodies subjected to the Khanate; (j) customary
law of Northern Caucasus people subjected to the Khanate. This paper analyzes these traditions
and argues that all of them, in addition to not being homogenized in the Khanate, co-existed
generally without crucial conflicts and inter-influenced each other.
Jarghu and Jarghu Judgements in the Mongol Empire
N. Chogt
Inner Mongolia University, China
Jarghu is a judicial system that was widely used in the Mongol Empire. There are many researches
about law in the Mongol Empire. However, very few work have been done on Jarghu in relation
to the Mongolian laws. In the Secret History of Mongolia and Jāmi‘ al-Tawārīkh by Rashid al1
Din etc that were written during the Mongol Empire, we can find out many records of Jarghu. The
Jarghu judgements are very invaluable records. According to those materials, we know that there
had been a judgment by Jarghu during that time, and after the Mongol Empire was established,
Činggis Qahan appointed Xigi Qutuqu to be the Yeke Jarghuchi to execute the task of
administration and judicial matters of the entire population. After his death, Yeke Jarghuchi
continued to judge Jarghu. However, Yeke Qahan judged it by himself occasionally. Especially in
the judgment of the members of Činggis Qahan family, all of the Altan Urug were allowed to take
part in the judgment and also had rights to announce their own opinions to discuss for the fair and
final judgment. During the Judgment, the judge would not coerce the criminal, but judged it
according to a sufficient evidence and the criminal’s own confession. Above all, we know that the
Mongol Empire had its own standard judicial system. We also can presume that Jarghu is the base
of the judgment, but it is still insufficient to analyze it based on the instance cases. During the
later Ilkhanates, there was a record of instance cases of Jarghu judgment called yārgū nāme. We
should study the Jarghu Judgment of the Mongol Empire particularly with material including the
above.
Panel 2: Social Formation and Administrative System under the Rule of ‘Foreign’ Empires
The Qing Administrative System in Mongolia in the 18th and 19th Centuries:
A Comparison with the Russian System in Kazakhstan
Roman Yu. Pochekaev
National Research University Higher School of Economics in St. Petersburg, Russia
This paper is devoted to a legal analysis of the Qing administrative institution and policy in
Mongolia, in comparison with the Russian administrative institution and policy in Kazakhstan in
the 18th and 19th centuries. The Qing Empire used a traditional―even “conservative”―approach
of administration of its nomadic subjects. As for the Russian Empire, it used in Kazakhstan a
method of frontier modernization that attempted to increase the level of development to the level
of the internal regions of the empire. The reason for this comparison is not only the coexistence
of the Qing and Russian administrative systems in the same time period, but also because the
Qing Empire in 1750s–1850s attempted to rule Kazakhstan using the same approach as in
Mongolia. This study is to explore why the ‘traditional’ way of administration, so effective in
Mongolia for ages, proved out to be inefficient in Kazakhstan and why the Russian Empire
succeeded with its way of modernization in ruling Kazakhstan. This paper argues that the
strengths of the Qing administrative policy were the preservation of national traditions of nomads
and integration of nomadic elites in Chinese official hierarchy (including payroll payments,
audiences at the imperial court, etc.), but its weaknesses were the non-interference in internal
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policy of nomadic subjects, and the absence of care for their development. Russia demonstrated
its intention to modernize nomadic societies, develop its infrastructure, although sometimes the
reforms became too radical for its nomadic subjects.
Political Units and Administrative System in 18th Century Transbaikal Buryats
Tsongol B.Natsagdorj
Mongolian Academy of Sciences, Mongolia
After the concluding of the Bura treaty in 1727, the surrounding lands of the Baikal Lake
populated by various Mongolic-speaking people were accepted by the Qing Empire as a Russian
territory. Did the old social structure of the Mongols, which was based on the Chinggisid principle,
survive in the ethnic Buryatia, especially in its Transbaikal side, which was from then on included
in the Russian Empire? What changes happened to it and in what circumstances? These and some
other questions are still not well resolved by scholars. Therefore, using archival sources and oral
histories, I will attempt to describe the evolution of the social structure of the Buryat otogs within
the Russian administration in the 18th century. In this paper, I shall discuss in details the organizing
principle of those political units of Buryats called ‘Otoγ’, including the hereditary system of their
heads and the number of population, as well as internal relationships between them. Also the
process of making local laws will be described as the factor of their legitimacy of power in some
issues.
Panel 3: Land Law and Land Policy in Post-Socialist Mongolia
Land Laws and Land Politics in Post-Socialist Mongolia
Orhon Myadar
The University of Arizona, USA
This article examines the juxtaposition of the romantic portrayal of Mongolia as a nomadic nation
of fenceless land and the reality of contemporary legal codes that create barriers physically and
metaphorically restricting free movement. Using a brief historic overview beginning from the
Manchu period, the article provides a textured analysis of ongoing process of reconfiguring public
access to land in Mongolia. The article, however, pays specific attention to the recent changes
in land codes in the post-socialist era and discusses the impact that the collapse of the socialist
system brought on Mongolian society generally and the land regime specifically. The article
discusses post-socialist social changes, as well as legal and policy debates that are continuously
reconstituting land politics in Mongolia. The article also examines the interplay of space and
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identity and analyzes how various policies such as land privatization, de-collectivization and
mining have altered the Mongolian cultural fabric. By doing, the article illustrates that Mongolia
is moving farther away from its romantic projection of a land of nomads.
Problems Concerning the Reception of Land Law in Post-Socialist Mongolia:
An Investigation Focused on Agricultural and Pastoral Land
Yoshiki Kurumisawa
Waseda University, Japan
Following Mongolia’s constitutional shift from a Socialist economic regime to a market system,
the government of Mongolia called for having the non-pastureland utilized for the purposes of
economic use with the aim of helping the nation’s economic development. This was underpinned
by an idea that views the land as the best resource for producing high economic returns. To enable
land to be freely traded in the markets, the government enacted laws that aim to establish and
promote private ownership over the land. Under the Constitution, pastureland can neither be
possessed nor owned; it is considered to be a space that is open and available to any herder.
Nevertheless, the National Parliament has recently been discussing a draft of the Pastureland Law,
which is designed for introducing possessory rights to the pastureland, especially in the suburban
areas, and for promoting settled herding. This movement has been triggered by multiple
developments. This paper explores the anticipated consequences of the introduction of a private
ownership regime over agricultural land and possessory rights to pastureland.
Panel 4: Judicial System and Practice at the Local Levels
Legal Reasoning of Mongolian Judges under the Qing Dynasty
Frederic Constant
Paris University, France
How were Mongolian judges interpreting the law promulgated by the Qing dynasty? Their judicial
authority was limited and their judgments were supervised by the Sino-Manchu administration,
through a review process leading to the Lifanyuan and even to the emperor when a death sentence
was delivered. However, as punishments were less harsh, the monitoring carried out by central
administration was less close. As a consequence, Mongolian judges had wider space for autonomy
when they were adjudicating petty matters, but they could also enjoy such autonomy for criminal
cases, insofar as they did not deliver a severe punishment. Through the study of several cases
from the Alashan archives and other scattered documents, we will consider how Mongolian
judges were adjudicating cases in this sphere of autonomy and when the codified law was silent
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on a specific matter. This will provide us an insight of the features of the legal reasoning that was
carried out by Mongolian judges. We will particularly focus on possible discrepancies between
the law promulgated by the Qing administration and the interpretation carried out by Mongolian
judges. We will consider the extent to which this legal reasoning was or not grounded in the
Mongolian legal culture.
Justice in the Chahar Banners between 1736 and 1761
Mongolkhuu Bayuud
Waseda University, Japan
The Qing government changed and adjusted justice in the Chahar Banners in the first half of the
Qianlong period. It gained a footing in the justice system of the Chahar Banners that was
maintained up to the end of the Qing dynasty. This paper examines the changes in the justice
system of the Chahar Banners and the legal policy of the Qing Empire.
First, for the crimes of theft and robbery, the Qing government applied the Mongol Code
(Mongγul čaγaǰa-yin bičig) that comprised the old and new articles established respectively in
1667 and 1727 during the Yongzheng period. Although the Qing government applied the Great
Qing Legal Code in 1736 because the Chahar Banners were under the control of the Eight Banners,
the Mongol Code was resurrected in order to deter theft and robbery in 1742. Furthermore, a law
about principal in mitigation, which comprised the two codes, was enacted in 1747. The above
demonstrates that the Chahar Banners had two characters of the “Mongol” and the “Eight
Banners”. On the one hand the Qing government paid great attention to the “Mongol” character
and applied the Mongol Code to the Chahar Banners; on the other hand it adopted a flexible legal
policy to enact special laws when the Mongol Code conflicted with the “Eight Banners” character.
Next, as the procedure of First Instance, officials of the Chahar Banners no longer
independently judged Mongolian cases in 1742, but instead did so jointly with Tongzhi and
Tongpan who were officials in Chinese provinces, to increase efficiency of the justice in the
Chahar Banners. However, the procedure was abolished in 1747 because it actually decreased the
efficiency of the judicial system.
Finally, capital crimes in Mongolia were required to undergo mandatory review in the
capital. In the Chahar Banners, Mongolian cases were reviewed by the Mongolian administrative
organization (Banners), and “Mixed” cases involving both Mongolian and Chinese were reviewed
by the Chinese administrative organizations (Ting, Fu, Sheng). The two categories of cases were
finally submitted to the Ministry of Justice of the central government in 1742. As the Chahar
Dutong was established and the Chahar Banners were separated from the Eight Banners in 1761,
the review institution was changed. The Mongolian administrative organization reviewed the
Mongolian cases and the “mixed” cases where the criminal was Mongolian, and the Chinese
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administrative organizations reviewed the Chinese cases and the “mixed” cases where the
criminal is Chinese.
Panel 5: ‘Rights’ and Rules
Disputes over Succession:
The Interplay between Official and Unofficial Law in 18th century Mongolia
Dorothea Heuschert-Laage
University of Bern, Switzerland
On the basis of legal cases from the Qianlong-period (1736-95), which are preserved in the
Collection of Manchu-Mongolian Routine Memorials from the Lifanyuan, the paper will shed
light on the internal process of negotiation, which preceded the reporting of an individual
nobleman’s concern to the Lifanyuan. In the event of a legal dispute, to bring an action before the
Lifanyuan could be part of a strategy to strengthen the position of a certain individual or group.
For non-ruling noblemen, however, it was important to gain support from the heads of the banner
and the league, because only they were entitled to regularly communicate with the court.
Moreover, even though decision-making authority rested with the Lifanyuan (and ultimately with
the emperor) and measures of punishment were determined at the court, reports presented to the
Lifanyuan by Mongolian authorities usually were unanimous position papers, which suggested a
certain view of the situation. By examining disputes over succession issues among holders of
Qing ranks and members in the banner administration, the paper argues that in 18 th century
Mongolia a range of actors was involved in decision-making processes and the enactment of Qing
law and informal dispute resolution were closely interwoven.
Property Inheritance in the Qaračin Region of Inner Mongolia during the Qing Period
Huhmuchir Borjigin
Tohoku University, Japan
The inheritance of property in the Mongolian nomadic society has been a fascinating topic for
many historians. However the academic view among the specialists who study the history of the
legislation and the social structure seems poles apart. The former has considered that the
customary law of Mongolia, including the inheritance of property, was influenced by the Chinese
law during the Qing era. And the latter has considered that the ways of inheritance of property
was possibly defined by the original social structure of Mongolia at the same time. However they
both share the same paradigm that the customary law of Mongolia was different from the Chinese
law. Without this paradigm we cannot negate the similarity between the customary laws of
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Mongolia and China, in spite the differences of their respective societies and economic
background. In this presentation I make an attempt to address the relationship between the laws
of inheritance of property and the social structure of Mongolia during the Qing dynasty.
Panel 6: Social Stratification, Class, and Law
Home Slaves and Legislation in the Qalq-a during the Qing Period
Oyunjargal,Ochir
National University of Mongolia, Mongolia
In the late 19th century, the number of the home slaves (ger-ün kümün, ger-ün kőbüd) who
represented one of the strata of Mongolian social classes decreased and thus almost disappeared.
Scholars tend to see the following four reasons for this phenomenon particularly in Qalq-a: 1)
The Qing dynasty forbade the trade of sumu er-e and qamjilγ-a as slaves; 2) The home slaves who
were under the control of nobles became noble-subjects(qamjilγ-a); 3) The home slaves who were
under the control of lamas became šabi or his own subject; 4) The home slaves who were under
the control of commoners were converted into sumu er-e and qamjilγ-a. The first cited reason
is only a condition of the home slavery outbreak rather than actually causing a decrease in
numbers of slaves, other three reasons state that the status of slaves changed not only in naming
as sumu er-e, qamjilγ-a and šabi. Thus the commoners were divided into sumu er-e, qamjilγ-a and
šabi by the Qing court, which was a condition for the number of slaves to decrease in Mongolia.
It is interesting to observe how change in such social structure was reflected in the legislation of
the Qing period. This paper will discuss the relevance of the decrease in number of slaves in
Mongolia during the Qing period by comparing the legal clauses about slavery in traditional codes
in Mongolia, such as the Mongol-Oirat law, the Qalq-a Jirum and the Lifanyuan zeli, the law of
the Qing Dynasty for Mongols. On the other hand, the paper highlights cases of how the law was
enacted in particular cases, drawn from documents kept in the National Central Archive of
Mongolia.
Classifying the People: Social Status and Hierarchal Order in
17th to 20th Century Mongolia
Erdenchuluu Khohchahar
Kyoto University, Japan
The recently found Mongolian archival sources, on the one hand, evidently bring about an
understanding that the pre-modern (i.e., before the Socialist reforms) Mongolian society was
neither a kin-based egalitarian one, as the evolutionists have suggested, nor a clearly defined class
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society, an idea that have been put forward by the Marxists. These original documents, on the
other hand, reveal the existence of diverse human categories in pre-modern Mongolia as well as
inequalities, not only between these different groups, but also among people who belonged to the
same category. This study does not intend to apply social stratification theories, especially the
Marxist and Weberian ones, to the pre-modern Mongolian society; it rather aims to explore the
human classification mechanism in traditional Mongolia. The starting point of this work is
therefore based on two bottom-up inquiries: How were the Mongolian people categorized? And
how were their social status (or social position) institutionalized? In doing so, this paper, which
employs a legal historical (more precisely an institutional) perspective, addresses changes and
evolution in the hierarchal order in pre-modern Mongolian society, particularly in the Qing period,
and argues that hierarchal order and the notion of status have so far been very significant elements
of the socio-political order in Mongolia.
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