Legal debates among Kazakh nomads and on the Kazakh steppe more broadly have, for the most part, addressed the effects of Russian colonial policy on the administration of law among these nomads. The official and scholarly Russian fixation on Kazakh customary law, based largely on a tendentious categorization of Kazakh Muslims as quasi-shamanists, resulted in policies designed to separate Islamic law (sharīʿa) from customary law (ʿādat), and to suppress the role of sharīʿa in the areas of criminal and civil law. As Muslims, however, Kazakh nomads were directly affected by sharīʿa debates taking place both among Tatar scholars in their midst as well as among Kazakh scholars. These discussions, which occurred largely outside the field of vision of Russian officials or officially-mandated customary law courts, have so far eluded scrutiny. Recorded primarily in recently-published biographical dictionaries of Muslim scholars on the steppe, these discussions addressed a range of issues, including questions of ritual, but also, more significantly, the application of Islamic legal norms to commercial matters.
The application and discussion of Islamic law among Kazakh nomads has received little scrutiny in the historiography of Islamic Inner Asia. Although the ancestors of the Kazakhs were Muslims already before the formation of a Kazakh nomadic confederation in the late fifteenth century, the idea that Kazakhs remained “superficially Muslim” or “less Islamic” than their neighbors is widespread in historical and ethnographic studies, not least in Kazakhstan itself. This mistaken assumption is rife not only among historians, but also among Russian officials, who, beginning in the 1820s when the Russian bureaucracy intervened in the administration of law in Kazakh communities, drafted legal codes based on the assumption that the Kazakh legal tradition was based on supposedly “pre-Islamic” customary law and “imported” Islamic law. Under this assumption, customary law (ʿādat) was typically administered by biys, tribal leaders functioning as judges, while Islamic law (sharīʿa) was administered by qāżīs who were understood to be Muslim jurists.1 Russian bureaucrats and, later, historians, used the sharīʿa/ʿādat division as the starting point in their descriptions of Kazakh legal culture. Typically they failed to understand that the co-existence of sharīʿa and ʿādat norms, rather than revealing a “legally defective” or “semi-Muslim” community, was, in fact, at least in the eighteenth and nineteenth centuries, normative in many Muslim societies. This fact, which will be obvious to legal historians of the Islamic world, is neither obvious nor often addressed in the historiography devoted to the Kazakhs.2 For colonial contexts, the juxtaposition of customary law and sharīʿa, and the privileging of the former as a bulwark against the latter is well documented, not least for imperial Russia.3 Moreover, the fact that Muslim legal practice has often subsumed customary law as part of sharīʿa is acknowledged among historians of Islamic law.4 The purpose of this brief article is to provide some evidence demonstrating that Islamic legal discussions among Kazakh nomads in the 19th and 20th centuries, if not earlier, could and did exist outside of the customary law courts established by the Russian authorities and, later, outside of the Soviet legal system. Far from being arcane theoretical discussions, these discussions in large part addressed economic matters directly affecting the livelihoods of ordinary Kazakh nomads, as well as addressing matters of ritual. These discussions, which demonstrate that Kazakhs emphasized the “Islamicness” of how they debated and resolved legal problems, should cause scholars to rethink the assumption that Kazakhs were “weak Muslims.”
Kazakh oral traditions assert in explicit terms the existence of madrasa-trained legal scholars from the late seventeenth century until Russia’s abolition of Chingisid authority the 1820s. These traditions also provide us with biographical information on individuals who functioned as qāżīs and as biys within the Kazakh nomadic elite. Russian sources from the late eighteenth century provide details on legal debates between the Orenburg Mufti Muḥammad-Jān b. al-Ḥusayn and Kazakh legal scholars in the entourage of the Kazakh rebel leader Batïr Sïrïm. The Russian-appointed Orenburg Mufti, Muḥammad-Jān b. al-Ḥusayn, was sent to Sïrïm in May 1790. Prior to his departure, the mufti circulated among the Kazakhs an “exhortatory letter,” effectively a fatwa, in which he established Qurʾānic and other legal proofs for the right of Muslims to live under a non-Muslim sovereign, indeed the obligation to do so if they had sworn oaths of submission. The mission apparently was an attempt to counter the arguments of “Bukharan mullahs” who had been circulating among the Kazakhs and who were calling upon them to move away from Russian authority and settle in the Central Asian khanates.5 As we shall see below, the issue of Russian sovereignty would resurface in Kazakh sharīʿa debates as late as the 1920s.
Although these accounts contain few specifics about legal debates, we do know that some eighteenth- and early nineteenth-century figures administered justice in their communities on the basis of Islamic law. Qarazhigit-molda, a Kazakh legal scholar trained in Bukhara in the 1780s,6 emerged in 1815 as a senior advisor to Arïnghazï Khan, a descendant of Kazakh Chingisid rulers in Khorezm. Several tribes in the Kazakh tribal confederation known as the Junior Zhüz elevated Arïnghazï Khan to the office of khan in 1815 or 1816, and he maintained a firmly pro-Russian foreign policy directed primarily against the Khanate of Khiva.7 However, Arïnghazï is also remembered for administering justice among the nomads under his control using sharīʿa courts in which Qarazhigit-molda undoubtedly played a central role. Although the degree to which Islamic law was discussed in Arïnghazï’s sharīʿa court is not known, there is no question that sharīʿa norms were used to suppress raiding and feuding between Kazakh groups. There appears to have been a political advantage in this as well, as Arïnghazï’s strict punishments are said to have contributed to his popularity among the nomads.
Sharīʿa judges are attested elsewhere on the steppe in this era, particularly among the Kereys of northern Kazakhstan. Tilen Montayŭlï (b. 1771), a biy in what is today the North Kazakhstan Oblast’, studied in madrasas in Qïzïlzhar and Samarqand and “resolved disputes on the basis of the sharīʿa.”8 Eseney Estemisŭlï (1798–1869) graduated from a madrasa in Urgench in 1815 and was elected mufti among the Kazakhs, Tatars, and Bashkirs of Western Siberia. He is remembered as a powerful biy and qāżī.9 The Arghïn Senior Sultan, Qŭnanbay Öskenbayŭlï, a prominent biy in the Qarqaralï region, regularly resolved disputes on the basis of Islamic law in the 1830s.10 Despite the Russian state’s confused attempts to isolate and institutionalize customary law as a means of excluding sharīʿa from Kazakh legal practice, Islamic legal discussions were an important element in customary law practice among the Kazakhs in the Orenburg District in the middle of the nineteenth century and down to the Soviet era.11 Maral-ishan Qŭrmanŭlï (1781–1841), a Kerey Sufi, saint and military commander in an anti-Russian insurgency in the 1820s, is also remembered as a biy who studied in a Central Asian madrasa in the Emirate of Bukhara and who judged cases on the basis of the sharīʿa. In these accounts it is evident that training in Central Asian madrasas was an important aspect of these figures’ authority as judges, and the presence of such scholars among Kazakh nomads contradicts Russian assertions that biys and qāżīs represented separate legal traditions among the nomads.12
Over the course of the nineteenth century, the expansion of Islamic institutions in both Central Asia and in the Volga-Ural and Siberian regions of Russia influenced nomadic communities on the Kazakh steppe. In Central Asia this expansion occurred against the backdrop of the emergence and expansion of the Manghït emirs in Bukhara and the Ming biys in Khoqand,13 and in Russia it both influenced and benefited from Russian policies that supported the expansion of Islamic institutions, most notably the establishment of the Orenburg Muslim Spiritual Assembly. The resurgence of Central Asia’s ancient prestige as a locus of Islamic learning was an additional factor in a similar institutional growth in Russia.14 Russian political and economic expansion into the Kazakh steppe triggered an influx of Muslims from Russia – Tatars and Bashkirs – as government officials, state-authorized religious figures, and merchants linked to the expanding Russian capitalist economy. Russian economic expansion, and the related growth of Islamic institutions there, brought the main economic and religious elements of Islamic institutional expansion into the Kazakh steppe. This was the period of the establishment of madrasas and the expansion of the ‘ulamāʾ, in the important commercial centers of Semey (Semipalatinsk), Qïzïlzhar (Petropavlovsk), Troitsk, and others, as well as the growth of Islamic education within nomadic communities.15 At the same time, Kazakh nomads retained their historical religious ties with Central Asia, and by means of madrasas in Khorezm, Bukhara, and Tashkent, participated in the growth of Islamic institutions in these areas.16
Accounts of legal debates on the Kazakh steppe demonstrate not only the presence of Muslim scholars and their social and legal functions among nomads, but also help us understand how Kazakh nomads and their legal scholars situated themselves in the jurisdictional geography of Imperial Russia, China and, after 1920, the Soviet Union, and the Islamic world as a whole. These accounts also show us how Muslims adapted Islamic law to Russian rule, and how they deployed it to solve new problems arising from the Kazakh steppe’s integration into the expanding Russian (and global) commercial sphere. An examination of such accounts provides an important, and hopefully informed, corrective to a vast body of historical and ethnographic literature that denies the relevance of Islamic law to Kazakh nomadic society and that minimizes or even negates the status of Kazakhs as Muslims.17 Muslim accounts of legal discussions on the steppe can also serve to challenge the arbitrary division of the legal culture of Kazakh Muslims into two exclusive components: “customary law” and “Islamic law.” Additionally, these accounts demonstrate that sharīʿa continued to play a role in Kazakh society outside of interactions with the Russian state.
1 Sharīʿa Debates in the Works of Qurbān-ʿAlī Khālidī
By the middle of the nineteenth century, Islamic institutional expansion in Russia and Central Asia, and the integration of Kazakhs into Russian Islamic networks and the Russian political and economic system, was well underway. In such a context, the fact that sharīʿa debates were taking place on the Kazakh steppe both in commercial centers and nomadic encampments should come as no surprise. These discussions are rarely discussed in narrative histories or biographical sources. The historian Qurbān-ʿAlī Khālidī (1846–1913), who served as a qāżī for Russian subjects in the Chinese frontier settlement of Chuguchak (Tacheng) in Xinjiang Province, describes several sharīʿa discussions that were held in Semey, a major religious and commercial center on the eastern Kazakh steppe.18 He mentions a legal discussion that took place there in the 1860s between the city’s scholars and local Russian authorities who had announced a plan to erect a building on land partially occupied by a Muslim cemetery. These Russian officials, who did not hesitate to point out that the qualities of hadiths varied, clearly were accustomed to engaging in sharīʿa discussions with their Muslim subjects, since they permitted the Muslims to challenge the plan, but warned that they would accept only Qurʾānic evidence that building the structure would be a violation of Islamic law. The imams and akhunds consulted amongst themselves, but found only hadiths that proscribe trampling on graves. They therefore asked for several days to consult the Qurʾāncommentaries. Finally, after some back and forth, a prominent merchant named Shāhī Ḥājjī announced that he had found a Qurʾānic verse that proscribes trampling graves: “Indeed, We have honored the children of Adam” [Qurʾān 17:70]. After quoting the verse he explained:
God created the sons of Adam as the most excellent of His creations, and He honored them most of all. His honoring of mankind is equal in life and in death. To trample them underfoot would be a violation of respect. The meaning of this verse covers all humanity, and is not only for Islam.
The Russian authorities reportedly accepted this argument and decided not to erect the building.19
Qurbān-ʿAlī also discusses a series of legal discussions that took place in Semey in the 1850s regarding the lawfulness of practices used by merchants engaged in commerce with Kazakh nomads at the headwaters of the Irtysh River, in China’s northern Xinjiang Province. Qurbān-ʿAlī relates an account that he heard during fiqh lessons from his teacher in Semey, ʿAbd al-Jabbār b. ‘Ubaydullāh (d. 1881).20 The case involved attempts by legal scholars to intercede on the behalf of nomads who were the victims of questionable business practices on the part of Chala-Kazakh merchants.21 These merchants would offer credit to the nomads, who put up as collateral the unborn offspring of livestock. According to ʿAbd al-Jabbār, a fellow-scholar named Ṣārï Mullā Ḥājjī22 informed him that merchants along the upper Irtysh were accepting as collateral lambs expected to be born the following season, as well as lambs to be born from unborn lambs already pledged as collateral. ʿAbd al-Jabbār traveled to Bukhara to determine the legality of this practice. That he doubted its legality is suggested by his declaration that one of his motives was to protect these merchants from torture and torment on Judgment Day. In Bukhara he discussed the matter with his teachers and other acquaintances and finally took the question to a mufti. After paying a fee, ʿAbd al-Jabbār received an opinion, but was dissatisfied because the fatwa failed to proscribe the practice. Nor did he receive satisfaction from his former fiqh teacher in Bukhara, Dāmullā Ramażān Ākhūnd. Ultimately, ʿAbd al-Jabbār blamed his inability to obtain a fatwa clearly proscribing the practice on confusion among Bukharan legal scholars. ʿAbd al-Jabbār also informed Qurbān-ʿAlī of another, related, legal debate going on in Semey at that time concerning the use of paper money to calculate one’s zakāt liability. One group argued that cash is an equivalent of coinage and constitutes wealth. Another group, headed by ʿAlī Muftī b. Walīd, better known as Damullā ʿAlī Muftī (d. 1887),23 argued that paper currency is used only in commerce and has only notional value. For this reason it should not be used to calculate one’s zakāt liability.
ʿAbd al-Jabbār referred both questions to his teacher in Kazan, Dāmullā Muḥammad-Karīm al-Qazānī,24 who was leaving for the hajj. Muḥammad-Karīm promised to bring up the question with legal scholars from Dār al-Islām (the Abode of Islam, which evidently did not include Russia). After he returned, he informed ʿAbd al-Jabbār that he had consulted with scholars in Mecca, Medina, Egypt and Istanbul. With regard to the use of unborn livestock as collateral, he had received no clear response from Hanafi scholars, although he was advised that if he raised the matter with a Shafiʿī scholar, he probably could obtain a fatwa that it was unambiguously illicit. Qurbān-ʿAlī does not reveal whether any conclusive answer was given regarding the status of paper money.25
Both cases had significant economic ramifications for the Muslim community, especially for merchants. The discussion over the use of unborn livestock as collateral, while not directly involving Kazakh scholars, would have had a direct impact on Kazakh nomads’ economic relations with Chala-Qazaq merchants. The discussion points to the importance of sharīʿa debates for Kazakh nomads, and to the impact of legal discussions for the Kazakhs’ integration into the Russian economy. Moreover, while the issue concerned Kazakhs in China, the ruling, or lack thereof, could be applied more broadly to economic practices in the steppe. In any case, we can see that the Semey scholars who initially raised the issue consulted directly or indirectly with legal experts in Bukhara, Kazan, and, ultimately, in the Hijaz, where scholars from Mecca, Medina, Turkey, and Egypt contributed to the discussion, albeit without resolving it. Thus, by the 1850s, Kazakh nomads, in the remotest parts of Xinjiang had access to a global network of Islamic legal expertise, and their commercial practices were subject to a global Islamic judicial review.
2 Sharīʿa Debates in the Biographical Dictionary of Sadwaqas Ghïlmani
Qurbān-ʿAlī Khālidī’s biographical dictionary of the eastern Kazakh steppe focuses primarily on Noghay, that is, Tatar and Bashkir, scholars, and extends the definition of an ‘ālim far beyond what we find in the better-known Tatar biographical dictionaries of Shihāb ad-Dīn Marjānī, Riżāʾ ad-Dīn b. Fakhr ad-Dīn, and Murād Ramzī.26 However, for the Kazakh context we can also consult Sadwaqas Ghïlmani’s recently published manuscript work Zamanïmïzda bolghan ghŭlamalardïng ghŭmïr tarikhtarï (Biographies of the Islamic Scholars of our Times), compiled between 1964 and 1972.27 Ghïlmani (1890–1972), by descent a Bashkir, served as imam in Akmolinsk, and, beginning in 1953, as qāżī of the Kazakh SSR in Alma-Ata.28 He provides biographies primarily of Kazakh Islamic scholars of his generation, but includes some earlier figures from Kazakh nomadic communities in northern Kazakhstan, in and around the cities of Aqmola (formerly Akmolinsk, then Tselinograd, and today Astana), Qïzïlzhar, Kökshetaw (Kokchetav), Omsk, and Pavlodar.
Zamanïmïzda bolghan ghŭlamalardïng ghŭmïr tarikhtarï contains individual biographies of approximately forty-five Kazakh scholars.29 These biographies address several legal issues that were debated by Kazakh scholars, primarily in the first decades of the twentieth century, at which time Kazakh nomadic society had substantially expanded its own ʿulamāʾ. As one would expect in a work devoted to the biographies of scholars, legal discussions and opinions are frequently mentioned. Ghïlmani provides details on three specific legal discussions. Two of these concern economic issues, and the third concerns the legal status of the däwir ceremony, an exculpatory sacrifice carried out following a funeral. By 1919 Ghïlmani had become a proponent of Islamic reformism, a position he held throughout his career, including during his association with the Central Asian Muslim Administration in Tashkent. In this regard, his accounts reflect theological discussions taking place on the steppe between reformists (including Jadids and other reformists) and their opponents.
The Legal Status of Marmots
The first of these three discussions is discussed in Ghïlmani’s biographical entry devoted to Baydüysen-khaziret Tüyteŭlï, a scholar from the Arghïn tribe’s Qanzhïghalï clan, who was active in the Aqmola region, and who died in 1914 or 1915.30 Baydüysen-khaziret, who was Ghïlmani’s instructor in Arabic and fiqh, had studied with ʿAbd al-Khabīr b. ʿAbd al-Wahhāb al-Ushmī, imam in Qïzïlzhar’s Second Mosque.31 Baydüysen-khaziret was also remembered for criticizing his son-in-law, Abdolkhakiym Temirzhanŭlï (Käkibay-khaziret), an early reformist who had studied with Ḥasan Ponomarev in Qïzïlzhar.32
Ghïlmani describes a specific discussion over the legal status of the marmot (sïwïr). He explains that Kazakhs would set up yurts and go out and hunt marmots, selling their pelts at government trading houses. A discussion arose among scholars regarding the use of marmot fat by Muslims. One group of scholars that included Baydüysen was led by a conservative scholar named Toqang-khaziret. This group argued that the marmot is not a game animal (ang), but rather belongs to the category of vermin. They reasoned that to qualify as game, an animal must have the power to flee with its legs and to defend itself or hide. For this reason, they concluded, the marmot should not be hunted. This group was opposed by Käkibay, as well as by the Jadid mullah Muqat-molda, who maintained that the marmot had been created for the benefit of mankind. It is licit to hunt marmots, which can be slaughtered by slitting their throats.
The marmot’s name in Arabic was relevant to the determination of its status in legal texts. Toqang-khaziret maintained that in Arabic the animal is called żabb, a type of large lizard also known as an uromastyx. Käkibay proposed that the Kazakh word sïwïr is common to Kazakh and Arabic, but that its exact identification required further research. The issue seems to have been addressed elsewhere on the steppe. Ghïlmani relates that some time later, when he was studying in the madrasa, he observed fellow-students consulting Ḥayāt al-Ḥayawān to make a determination as to the status of the marmot.33 The students found that in that work the żabb does not correspond to the marmot, and they concluded that the marmot does not exist in Arabia. Ultimately the status of the marmot was never definitively resolved. Käkibay continued to maintain that consumption of the animal is licit, provided its throat is slit, while Baydüysen advised not to encourage people to eat it. Ghïlmani, himself of a reformist orientation, criticized Baydüysen for failing to take into account the Kazakhs’ economic situation.
Selling the Fat from Carrion to Russians
The second discussion addressed by Ghïlmani is whether it is licit to sell to Russians fat obtained from carrion (ölekse).34 Ghïlmani discusses the issue in a list of fatwas issued by Äliyasqar Aytqozhaŭlï (1887–1937), a madrasa instructor who became imam of Kökshetaw and supervisor of Islamic officials (muḥtasib) of Kökshetaw District in 1920. He had been a student of the conservative imam of Kökshetaw, Nawrïzbay (Nawan-khaziret), and accompanied him into exile in Eastern Siberia in 1904. In 1910 Äliyasqar went to study in Bukhara with Dāmullā Khālmurād. He returned to Kökshetaw in 1916.
The legal issue that was posed to Äliyasqar had three components. First, is it licit for a Muslim to sell the fat from an animal that dies without being properly slaughtered to a Muslim or to nearby Russian settlements? The petitioner explained that some mullahs held the practice to be licit because Russian settlements (posolkeler) in the steppe were part of Dār al-Ḥarb (the Abode of War). Second, are the Russian settlements in which Kazakhs sell marmots part of Dār al-Ḥarb? Finally, would it be licit for the petitioners to use the fat, if Äliyasqar determined that it is licit to sell it to Russians? Clearly, this was a matter of some economic importance, especially in the lean years following the Russian Civil War (1918–1921), but also more generally, since winter storms occasionally would wipe out entire herds. Should the fat from these carcasses – or even a part thereof – be ruled licit, there would be a clear economic benefit for the Kazakhs.
Äliyasqar replied that any transaction involving carrion is illicit and invalid, because both sides of a transaction must involve property (māl) in order for a transaction to be legitimate. By extension, property obtained in exchange for non-property is inherently illicit. Since the fat is obtained from carrion, and carrion by definition has no value and is illicit, any property obtained in exchange for it is illicit, and may not be sold to Muslims or Russians.
With regard to the status of the Russian settlements, Äliyasqar acknowledged that both “ignorant mullahs” and learned scholars held that these are part of Dār al-Ḥarb (implying that the steppe inhabited by Kazakh nomads is legally, if not politically, part of Dār al-Islām). Äliyasqar did not explain why the settlements are not part of Dār al-Ḥarb. In any case, for the purposes of his fatwa, he determined that the status of the Russian settlements is moot, since the transactions in question are illicit.
Finally, he categorically prohibited Muslims from using the fat obtained from carcasses, in any way, including to make soap. Äliyasqar alluded to earlier rulings by local scholars who held that soap made from such fat is licit. He pointed out that these jurists based their faulty decision on earlier opinions regarding fat from animals that had been licitly slaughtered, but later became unfit for consumption. In the case brought to Äliyasqar the fat had never been in a licit state. Therefore, anything derived from it can never be licit.
The status of the Russian settlements in the steppe (which usually included Tatar quarters as well) appears to have been a sensitive issue. We have seen above how in 1851 the Kazan scholar Muḥammad-Karīm al-Qazānī promised to consult with the “scholars of Dār al-Islām” while in the Hijaz on the hajj. Such a usage implies that scholars in the Russian cities of Kazan and Semey were outside of Dār al-Islām. At the same time, Muslim legal scholars in the Volga-Ural region had already addressed the legal status of Russian-ruled territories inhabited by Muslims in the seventeenth century, and the issue had become the subject of a specific legal treatise in the nineteenth century.35 In his biography of Toqang-khaziret, Ghïlmani relates the story of a scholar who was expelled from his madrasa in Qïzïlzhar after telling wealthy Tatars who were mocking Kazakhs that there is a hadith denouncing Muslims who “mingle their smoke” with infidels. He asked them pointedly, “Where do you reside?”36
The Däwir Ceremony
The däwir ceremony is an exculpatory sacrifice in which a family pays a religious figure to take on the sins of a deceased relative, thereby liberating the deceased from the Torment of the Grave. The practice, which in both Tatar and Kazakh sources was especially associated with Kazakh nomads, came under attack in the nineteenth century from reformist critics. One of our most detailed descriptions of the ceremony is from Qurbān-ʿAlī Khālidī, who related that the ceremony took up to a full day and was attended by as many as seventy people.37 Typically, mullahs received substantial donations of livestock for performing the ceremony and taking on the sins of the deceased. The earliest Tatar source to mention the däwir ritual is from 1849, although it does not mention the ritual by name. In this account the author, who mocks the Kazakhs for their primitiveness, mentions khwājas (descendants of the family of the Prophet Muhammad) who took upon themselves the sins of the deceased in exchange for livestock.38 The ceremony was by no means unique to Kazakhs. It was also practiced by Karakalpaks, Uzbeks39 and even by Tatar communities in the Urals and elsewhere.40 In a similar ceremony, called dooron, practiced by the Kyrgyz, a mullah was given the horse and saddle of the deceased in exchange for taking his sins upon himself.41 Despite its wide geographic range, the ceremony is largely absent from ethnographic accounts of the funerary practices of any of these groups.
By the early twentieth century, if not earlier, the däwir ceremony had become a subject of controversy among Kazakh ʿulamāʾ. We can dismiss the assumption that “more Muslim” Tatars opposed the practice while “less Muslim” Kazakhs endorsed it. Qurbān-ʿAlī Khālidī notes disapprovingly that Ṣārï Mullā Ḥājjī, a scholar and imam in Semey descended from Tatar nobility in Kasimov, was a strong supporter of the practice and evidently a beneficiary as well.42 In fact, the practice came under sustained criticism from Kazakh scholars. Ghïlmani writes that during his youth his father Ghïlman Sälmenŭlï (1856–1939), himself a mullah, had refused payment for the däwir ceremony, and steadfastly refused to perform it throughout his life. On one occasion, after he had been offered 100 horses to perform the ceremony, he fled the gathering out of fear. In the end he was given four horses, but Ghïlmani implies that his father was motivated to flee by the fear of responsibility for the deceased’s sins. Another opponent of the ceremony was the reformist Käkibay-khaziret, who did not denounce däwir directly, but, when asked, would tell people that the ceremony is unnecessary. In fact, during his final illness Ghïlmani’s father instructed his son not to perform the ceremony for him because Käkibay had explained to him that it is unnecessary.43
Some authoritative scholars defended the practice. A case in point was the influential and conservative imam in Kökshetaw, Nawrïz-Mukhammed Talasŭlï (1844–1917), known among Kazakhs as Nawan-khaziret. He studied in Bukhara for fifteen years, from 1869 until 1884, under ʿUbaydullāh-khaziret, perhaps the Bukharan Sufi ʿUbaydullāh b. Ūzbek-khwāja, and became skilled in Persian and in fiqh. His authority was such that neither his students nor junior scholars dared challenge his endorsement of the däwir ceremony.44
Ghïlmani relates a story about a däwir debate that took place among religious scholars in Omsk oblast’ in 1932 or 1933, during the state-orchestrated famine on the steppe following Collectivization.45 To avoid arrest Ghïlmani had fled Aqmola, gone to Omsk Oblast’, in Russia, and was living among the Kazakh Qïpshaq Baba people. When a prominent person died, many mullahs were invited to his memorial feast, where the däwir issue was debated. Ghïlmani, among others, denounced the practice, while some local religious figures defended it. At that gathering Ghïlmani declared that he had publicly come out against the practice twenty-two years earlier because it is an innovation that had not existed at the time of the caliphs. He also had argued that the practice itself, while not explicitly proscribed in the sources of Islamic law, nevertheless contravenes the Qurʾān and hadiths. Ghïlmani’s opponent in this discussion was Mŭstaqim-khaziret Äzmaghambetŭlï (d. 1934), who was from the Arghïn tribe’s Qarawïl clan. Mŭstaqim-khaziret had studied with Aldabergen-molda, a prominent local Kazakh scholar, and later went to Troitsk where he studied Sufism under the well-known Bashkir Sufi and scholar Zaynullāh-īshān Rasulev (d. 1917), who licensed Mŭstaqim as a Sufi master.46 Ghïlmani suggests that Mŭstaqim-khaziret’s forte was more Sufism than sharīʿa, noting that he trained more Sufis than legal scholars. Be that as it may, according to the account, Ghïlmani provided the necessary proofs for his points, while Mŭstaqim-khaziret did not. Indeed, Mŭstaqim-khaziret left in a huff, exclaiming to Ghïlmani, “May rightly guided ancestors cuss you out!”47
Our sources demonstrate that sharīʿa debates were widespread on the northern Kazakh steppe in the nineteenth and early twentieth centuries (if not earlier), including in Kazakh nomadic communities. Sharīʿa debates covered a wide range of political, economic, and ritual concerns for Muslim communities on the Kazakh steppe. The frequency of sharīʿa debates obviously expanded in relation to the growth of the Kazakh ʿulamāʾ, Islamic education and other Muslim religious institutions during the nineteenth century. The discussions served as public arenas for establishing scholarly and legal influence and they involved and affected a range of social groups in Muslim society on the steppe, including nomads and merchants, and Kazakhs and Tatars. Participation in these discussions was not restricted to the ʿulamāʾ, but included merchants and even Russian officials. At stake were relations with the Russian authorities, commercial relations between merchants and nomads, Islamic taxes, ritual practices, and the boundaries between Dār al-Ḥarb and Dār al-Islām on the Kazakh steppe. Sharīʿa debates also served as an arena in which reformist Jadids and other reformists challenged “traditional” scholars on issues of economics and ritual. The objections to the däwir ceremony, and resistance to it among some Kazakh scholars, demonstrate that Islamic reformism was already well developed in Kazakh society at the end of the nineteenth century, but was by no means unchallenged. These discussions suggest that Kazakh religious practices did not differ substantially from those of their Muslim neighbors, and show a willingness on the part of Kazakh scholars to address the däwir ceremony where their neighbors may not have.
1 Influential codifications of Kazakh customary law include Alexis de Levchine, Déscription de Hordes et des Steppes des Kirghiz-Kazakhs ou Kirghiz-Kaïsaks (Paris: Imprimerie Royale, 1840), 390–404; D. Ia. Samokvasov, Sbornik obychnago prava Sibirskikh inorodtsev (Warsaw: Tipografiia Ivana Noskovskago, 1876); 245–82; I. Ibragimov, Zametki o kirgizskom sude (St. Petersburg: Tipografiia Kirshbauma, 1878); P. Makovetskii, Materialy dlia izucheniia iuridicheskikh obychaev kirgizov (Omsk: Tipografiia okruzhnago shtaba, 1886); N.I. Grodekov, Kirgizy i karakirgizy Syr-Dar’inskoi oblasti I (Tashkent: Tipografiia Lakhtina, 1889); important Soviet-era studies include Materialy po kazakhskomu obyhnomu pravu I, ed. S.K. Iushkov (Alma-Ata: Izdatel’stvo Akademii Nauk Kazakhskoi SSR, 1948); T.M. Kul’teev, Ugolovnoe obychnoe pravo kazakhov (Alma-Ata: Izdatel’stvo Akademii Nauk Kazakhskoi SSR, 1955); S.L. Fuks, Obychnoe pravo kazakhov v XVIII-pervoi polovine XIX veka (Alma-Ata: Nauka, 1981).
2 One of the first to allude to the close relationship between customary law and sharīʿa was the legal historian Savelii Fuks; see his “Nekotorye momenty istorii kazakhskogo prava i ‘Opisanie kirgizskikh obychaev’ d’Andre,” Izvestii Akademii Nauk Kazakhskoi SSR, seriia iuridicheskaia I (1948), 77–94; on sharīʿa courts among Kazakh nomads, see Paolo Sartori, “The Birth of a Custom: Nomads, Sharīʿa Courts and Established Practices in the Tashkent Province, ca. 1868–1919,” Islamic Law and Society 18 (2011), 293–326. Historians who study customary law among Muslim nomads have nevertheless tended to recuse themselves from addressing Islamic law, or, as they put it, “the influence of Islamic law on customary law”; see Virginia Martin, Law and Custom on the Steppe: the Kazakhs of the Middle Horde and Russian Colonialism in the Nineteenth Century (Richmond, Surrey: Curzon, 2001), 11; S.K. Kozhonaliev, Sud i obychnoe pravo kirgizov do oktiabrskoi revoliutsii (Frunze: Izdatel’stvo Kirgizskoi Akademii Nauk, 1963),40.
3 On imperial approaches to ādat and sharīʿa among the Kazakhs see, Paolo Sartori and Pavel Shablei, “Sud’ba imperskikh kodifikatsionnykh proektov: adat i shariat v kazakhskoi stepi,” Ab Imperio 2 (2015), 63–105. For a discussion of the relationship of the Russian authorities to ʿādat and sharīʿa outside of the Kazakh steppe, including comparisons to other colonial situations, see Michael Kemper, “ʿAdat against Shariʿa: Russian Approaches to Daghestani ‘Customary Law’ in the 19th Century,” Ab Imperio, 3 (2005), 147–74.
4 On the relationship between Mongol Imperial law codes and sharīʿa see, Denise Aigle, “Le Grand Jasaq de Genghis-Khan, l’empire, la culture mongole et la sharīʿa,” Journal of the Social and Economic History of the Orient, 47:1 (2004), 31–79; Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformation (New York: Cambridge University Press, 2009), 384–88.
5 Mikhail Viatkin, Batyr Srym (Almaty: Sanat, 1998), 236–7. “Bukharan mullahs” may have included Kazakh and Tatar scholars.
6 For a compilation of archival and oral sources on Qarazhigit Bektawŭlï, see Zäkiratdin Baydosŭlï, Qarazhigit (Aqtöbe: A-Poligrafiya, 2008).
7 On Arïnghazï Khan. see A.F. Riazanov, Sorok let bor’by za natsional’nuiu nezavisimost’ Kazakskogo naroda (1797–1838) (Kzyl-Orda: Obshchestvo izucheniia Kazakstana, 1926), 92–150; for archival documents regarding Arïnghazï Khan, see Materialy po istorii Kazakhskoi SSR (1785–1828) 4 vols. M.P. Viatkin ed. (Moscow-Leningrad: Akademiia Nauk SSSR, Institut Istorii, 1940), 4: 297–479; for a synthesis of the materials, including Kazakh oral traditions, see Ŭlzhan Akhmetova, Arïnghazï Khan, (Aqtöbe: A-Poligrafiya, 2004).
9 Sotsial Zhŭmabayev, Ŭlïlar tughan ölke (Petropavl: n.p., 2006), 368–78; Sügirbayev, Qïzïlzhar öngirining ziyalï qawïmï, 106.
10 Zhanuzak Kasymbaev, Starshii sultan Kunanbai Oskenbaev i ego okruzhenie (Almaty: Kitap, 2004), 26–30.
12 Sotsial Zhŭmabayev and Kärim Zhalmaqanov, Birzhannïng belgisiz ghŭmïrï – Nŭralï shezheresi (Petropavlovsk: n.p., 2009), 116–20, 150–53.
13 The dynastic implications of this institutional expansion in Central Asia are addressed in the following studies: B.M. Babadzhanov, Kokandskoe khanstvo: vlast’, politika, religiia (Tokyo-Tashkent: Yangi Nashr, 2010); Anke von Kügelgen Die Legitimierung der mittel-asiatische Mangitendynastie in den Werken ihrer Historiker (Istanbul: Orient-Institut Istanbul, 2002).
14 On the development of Islamic institutions and intellectual life in the Volga-Ural region in the Imperial period, see Michael Kemper, Sufis und Gelehrte in Tatarien und Baschkirien: der Islamische Diskurs unter russischer Herrschaft (Berlin: Klaus Schwarz Verlag, 1998); Allen J. Frank, Bukhara and the Muslims of Russia: Sufism, Education, and the Paradox of Islamic Prestige (Leiden: Brill, 2012).
15 The Islamic institutional expansion on the Kazakh steppe awaits a thorough study; for a preliminary discussion, see Allen J. Frank, “Islamic Transformation on the Kazakh Steppe, 1742–1917: Toward an Islamic History of Kazakhstan under Russian Rule,” in The Construction and Deconstruction of National Identities in Slavic Eurasia, ed. Hayashi Tadayuki (Sapporo: Slavic Research Center, Hokkaido University, 2003), 261–89.
16 See Allen J. Frank, “Sufis, Scholars and Divanas of the Qazaq Middle Horde in the Works of Mäshhür-Zhüsip Köpeyulï,” Islam, Society and States across the Qazaq Steppe, ed. Niccolò Pianciola and Paolo Sartori (Vienna: Austrian Academy of Sciences, 2013), 213–32.
17 The notion that nomadism is somehow incompatible with Islam and that the status of nomads as Muslims is open to question is widely encountered in influential historical works on the Kazakhs from the nineteenth century. The most widely cited of these works includes Chokan Valikhanov, “Sledy shamanstva u kirgizov,” and idem, “O musul’manstve v stepi,” Sobranie sochinenii v piati tomakh 5 vols. (Alma-Ata: Glavnaia redaktsiia kazakhskoi sovetskoi entsiklopedii, 1985), 4: 48–70, 71–6; Alexis de Levchine, Déscription de Hordes et des Steppes des Kirghiz-Kazakhs ou Kirghiz-Kaïsaks. On Kazakh religion, see Bruce G. Privratsky, Muslim Turkistan: Kazakh Religion and Collective Memory (Richmond, Surrey: Curzon, 2001), 11–19.
18 Following the 1881 Treaty of St. Petersburg, Imperial Russian subjects in China enjoyed extraterritorial privileges with respect to legal jurisdiction. Russian subjects were under the legal authority of the local Russian consul, who administered justice to Muslim subjects through an officially appointed qāżī.
19 Qurbān-ʿAlī Khālidī, An Islamic Biographical Dictionary of the Eastern Kazakh Steppe, 1770–1912, ed. A.J. Frank and M.A. Usmanov (Leiden: Brill, 2005), fol. 58b.
21 Chala-Kazakhs comprised a legal estate recognized by the Russian government. Officially they were descended from Tatar, Bashkir, or Sart fathers and Kazakh mothers; see B.T. Zhanaev, “Chala-kazaki v XIX – nachale XX v.: proiskhozhdenie, rasselenie, zaniatiia,” in Rol’ nomadov v formirovanii kul’turnogo naslediia Kazakhstana (Almaty: Print-S, 2010), 272–304.
22 A reference to the Semey scholar ʿAbd al-Raḥmān b. ʿUbaydullāh; see Qurbān-ʿAlī Khālidī, An Islamic Biographical Dictionary, fol. 70b.
23 ʿAlī Muftī was a legal scholar of some authority. He studied in Bukhara and served as mufti in Khoqand, until he was forced to leave in 1865. He then traveled to Semey, and later became imam in Öskamen (Ust’-Kamenogorsk); see Qurbān-ʿAlī Khālidī, An Islamic Biographical Dictionary, fol. 70a.
24 Muḥammad-Karīm b. Muḥammad-Raḥīm (d. 1865) was a prominent madrasa instructor in Kazan who went on the hajj first in 1851, and again in 1861, after which he settled permanently in Istanbul; see Riżā’ ad-Dīn b. Fakhr ad-Dīn, Athār, 2:13, 410–2.
26 On these biographical dictionaries, see N.G. Garaeva, “Traditsii tatarskoi istoriografii XIX v. i ‘Talfik al-Akhbar...’ M. Ramzi,” in Problema preemstvennosti v tatarskoi obshchestvennoi mysli, ed. R.M. Mukhametshin (Kazan: Institut istorii, iazyka i literatury imeni Ibragimova, 1985), 84–96; M.A. Usmanov, “Istochniki knigi Sh. Mardzhani ‚Mustafad al-akhbar fi akhvali Kazan va Bulgar’ ch. 1, Kazan, 1885,” in Ocherki istorii Povolzh‘ia i Priural‘ia ed., A. Litvin (Kazan: Izdatel’stvo Kazanskogo Universiteta, 1969), 144–54; Liliia Baibulatova, “Asar” Rizy Fakhreddina (Kazan: Tatarskoe knizhnoe izdatel’stvo, 2006).
27 Sadwaqas Ghïlmani, Zamanïmïzda bolghan ghŭlamalardïng ghŭmïr tarikhtarï I, ed. Ashirbek Muminov and Allen J. Frank (Almaty: Daik Press, 2015).
28 Following the establishment of the Religious Administration of Central Asian Muslims (SADUM) in 1943, qāżīs were appointed for each of the Union Republics to administer the Muslim “clergy” in each of their respective republics.
31 ʿAbd al-Khabīr (d.1879) a close associate of Shihāb ad-Dīn Marjānī, was a prominent reformist theologian in Qïzïlzhar. On him see Shihāb ad-Dīn Marjānī, Mustafād al-akhbār fī ahwāli Qazān wa Bulghār 2 vols. (Kazan, 1900), 2: 277–8; Ghalimjan Barudi, Qïzïlyar säfäre (Kazan: Iman, 2004), 90–1.
32 Ḥasan Ponomarev (d. 1937) was an influential reformist who was associated with the Ahl-i Qurʾān circle in Uzbekistan during the Soviet era; see Ashirbek Muminov, “Fundamentalist Challenges to Local Islamic Traditions in Soviet and Post-Soviet Central Asia,” in Empire, Islam, and Politics in Central Asia, ed. Tomohiko Uyama (Sapporo: Slavic Research Center, Hokkaido University, 2007), 257 n. 18.
33 This is a fourteenth century CE zoological compendium by the Egyptian scholar Kamāl al-Dīn Muḥammad b. Mūsā al-Damīrī (1341–1405) in which he discusses approximately 900 species of animals mentioned in the Qurʾān and hadiths; on al-Damīrī and his work, see EI2, s.v. al-Damiri (H.W. Alter).
35 On discussions concerning the relationship of the Volga-Ural region to the Dār al-Islām, see Kemper, Sufis und Gelehrte, 290–4.
39 A Karakalpak monolingual dictionary defines däwir as “a custom performed to forgive the sins of the deceased.” See Qaraqalpaq tilining tüsindirme sözligi 4 vols. (Nukus: Qaraqalpaqstan baspasï, 1984), 2: 68; an Uzbek dictionary defines davir as a sacrifice offered in penance in exchange for forgiveness; Jahangir Mamatov et al. (eds.), Comprehensive Uzbek-English Dictionary 2 vols.(Springfield, Virginia: Dunwoody Press, 2011), 1: 231.
40 F.S. Bayazitova, Urta Ural (Sverdlovsk ölkäse) tatarlarï (Kazan: Fiker, 2002), 260; a Tatar monolingual dictionary provides one of the most detailed definitions of the däwer ritual, emphasizing that the deceased must be more than twelve years old. It also includes the derivational form däwerche, meaning the person who conducts the däwer ceremony; see Tatar teleneng anglatmalï süzlege 3 vols. (Kazan: Tatar kitap näshriyatï, 1977), 1: 318.
45 On the political background of Collectivization and on famine on the Kazakh Steppe, see Niccolò Pianciola, Stalinismo di frontiera: Collonizzazione agricola, sterminio dei nomadi e costruzione statale in Asia central (1905–1936) (Vicenza: Viella, 2009).
46 On Rasulev, see Hamid Algar, “Shaykh Zaynullah Rasulev: the Last Great Naqshbandi Shaykh of the Volga-Urals Region,” in Muslims in Central Asia: Expressions of Identity and Change, ed. Jo-Ann Gross, (Durham, North Carolina: Duke University Press, 1992), 112–33.
See Allen J. Frank, “Sufis, Scholars and Divanas of the Qazaq Middle Horde in the Works of Mäshhür-Zhüsip Köpeyulï,” Islam, Society and States across the Qazaq Steppe, ed. Niccolò Pianciola and Paolo Sartori (Vienna: Austrian Academy of Sciences, 2013), 213–32.
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)| false , See Allen J. Frank “Sufis, Scholars and Divanas of the Qazaq Middle Horde in the Works of Mäshhür-Zhüsip Köpeyulï,”Islam, Society and States across the Qazaq Steppe, ed. Niccolò Pianciola and Paolo Sartori (Vienna: Austrian Academy of Sciences, 2013), 213–32 .
F.S. Bayazitova, Urta Ural (Sverdlovsk ölkäse) tatarlarï (Kazan: Fiker, 2002), 260; a Tatar monolingual dictionary provides one of the most detailed definitions of the däwer ritual, emphasizing that the deceased must be more than twelve years old. It also includes the derivational form däwerche, meaning the person who conducts the däwer ceremony; see Tatar teleneng anglatmalï süzlege 3 vols. (Kazan: Tatar kitap näshriyatï, 1977), 1: 318.
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)| false , Urta Ural (Sverdlovsk ölkäse) tatarlarï ( F.S. Bayazitova Kazan: Fiker, 2002), 260; a Tatar monolingual dictionary provides one of the most detailed definitions of the däwerritual, emphasizing that the deceased must be more than twelve years old. It also includes the derivational form däwerche, meaning the person who conducts the däwerceremony; see Tatar teleneng anglatmalï süzlege3 vols. (Kazan: Tatar kitap näshriyatï, 1977), 1: 318.
On Rasulev, see Hamid Algar, “Shaykh Zaynullah Rasulev: the Last Great Naqshbandi Shaykh of the Volga-Urals Region,” in Muslims in Central Asia: Expressions of Identity and Change, ed. Jo-Ann Gross, (Durham, North Carolina: Duke University Press, 1992), 112–33.
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On Rasulev, see)| false , Hamid Algar “Shaykh Zaynullah Rasulev: the Last Great Naqshbandi Shaykh of the Volga-Urals Region,”in Muslims in Central Asia: Expressions of Identity and Change, ed. Jo-Ann Gross,( Durham, North Carolina: Duke University Press, 1992), 112–33.