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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