9 Alternative Dispute Resolution Institutions in Contemporary Kazakhstan: Recontextualizing Cultural Heritage of the Bi Institution

The cultural legacy of the nomadic Kazakhs has largely been ignored or at best considered in scientific literature and imperial politics as part of a backward culture for centuries. Despite this, the modern appeal of the legal traditions of nomadic Kazakhs testifies to the contrary, showing the vitality and importance of that cultural legacy today.

This chapter consists of two major parts. The first part discusses an ideal model of the traditional Kazakh bi institution, which was widely used by the nomads as a means of legal recourse from the fourteenth to the eighteenth centuries. The first part also provides a brief historical and sociopolitical overview of the political organization and nomadic lifestyle of the Kazakhs and explains why the historical time frame from the fourteenth to the eighteenth centuries was taken for study. I further discuss the customary law of the nomadic Kazakhs that was behind the justice institution, what the bi was like, and how it functioned. I conclude this section by analyzing the value of the bi in nation-building.

The second part of this chapter centers on a discussion about the present-day council of the bis and some elements of the mediation institution, and to what extent they reproduce the traditional institution of the bi. By “contemporary period” I mean a time frame of independent Kazakhstan that started after 1991 until the present. The public image and popular perception of these two current alternative dispute resolution institutions and the government policy behind the council of the bis allows us to conclude that both are perceived by the people—and in one case even officially promulgated by the government—as efforts to reestablish a nomadic justice rendering bi institution.

The Traditional Judiciary of the Nomadic Kazakhs—The Institution of the Bi

Studying the Kazakh nomadic bi institution—the traditional judiciary—of medieval and the beginning of early modern times helps us to understand the reasons and factors why the bi institution was an important, resilient, and rational tool for the restoration of understanding and well-being within the nomadic community.

Literature Review on the Traditional Bi Institution

To understand the traditional Kazakh institution of the bi, we first of all start by referring to a scientific investigation carried out by the prominent nineteenth-century Kazakh scholar Shoqan Uălikhanov (1835–65) in Zapiska o sudebnoĭ reforme of 1864, which was addressed to the Russian colonial administration. He wanted to convince them not to reform the Kazakh traditional judiciary as it satisfied the people’s needs.^[1] According to Uălikhanov, despite fifty years of rule of the Russian Empire, the institution of the bi remained since it stemmed directly from the people’s lifestyle, represented “the utmost analogy with the results of higher cultural development,” and, finally, it allowed the Kazakhs to be “the most peaceful” among non-Russian nations of the empire of that time.^[2] Uălikhanov’s research is critical to my own understanding of the function of the bi due to his analysis of functionality of the traditional bi institution from an insider’s perspective as an eye witness of the traditional judiciary and the Russian colonial reforms.

Valuable comprehensive research was carried out by a group of Soviet scholars led by Sultan Sartaev (1982). The first volume of the work discusses the historical development of Kazakhstan beginning in ancient times up to the Russian Revolution of 1917.^[3] The informative content of the work provides analysis of the political organization and law of the Kazakh khanates from the fifteenth to eighteenth centuries. Despite the fact that the work used the Marxist conflict approach, the reader may find useful the detailed picture of the traditional bi institution, as well as trial procedures and the relevant customary law, and the challenges that the institution faced with the Russian colonial reforms in the nineteenth century.

After gaining independence, Kazakh scholars paid much more attention to the history of state and law, and significantly reconsidered the approach that was used under Soviet ideology and Russian prevalence in Kazakhstan. The scientific school led by Salyq Zimanov worked from 2004 to 2009 on a ten volume compilation of primary sources entitled Qazaqtyng ata zangdary, which collected judicial cases and rhetoric speeches of Kazakh bis.^[4] Taking into account the scarcity of primary sources on nomadic Kazakh law and state up to and including the eighteenth century, the compilation enriched the respective scholarship. Regrettably, the works should have contained more information about the timing and circumstances when oral art was first recorded. This inclusion would have made the work more scientifically robust.

Special historical research about the bi institution was done by Zhanna Mazhitova in her dissertation that was defended in Russia in 2016.^[5] Overall, the work gives an impression that it has been done under the influence of Russian academia. The author brings attention to all of the historical research and discussions of the diverse scientific schools done on the bi by the Russian and Kazakh scholars of pre-Soviet and Soviet times, and additionally gives an overview of Western (European and American) scholarship on the social history of Kazakh society. As seen in the title of the dissertation, Mazhitova considers bi a phenomenon as an institution that was multifunctional in society and in nation-building.

Kaĭrat Alimzhan’s analytic approach to the bi institution could be of interest to a large audience.^[6] Alimzhan provides a theoretical framework for Kazakh customary law, and discusses the efficient use of the nomadic heritage of the bi in the legal policy and judicial reforms held (and continuing to be held) in the first decade of Kazakhstani independence after the dissolution of the Soviet Union.^[7]

Scientific curiosity of contemporary Western anthropologists, including Judith Bayer, in the historical development of dispute management institutions like aksakal courts (courts of elders) in Kyrgyzstan brings a new interpretation to the legal and political culture of independent Central Asian countries and allows us to see the Western view on how such courts revived and function in modern Kyrgyz society.^[8] Bayer’s work enabled me to undertake a comparative analysis with the Kazakhstani case.

The socio-anthropological research of David Sneath of the study of Mongolian nomadic society discusses the formation of a nomadic state and organization of its rulership, rethinking the classical Weberian “models of the state.”^[9] The Mongolian nomadic society in particular of the medieval times is aristocratic and headless, that is, the exercise of power by independent nobles or “the rule of an hereditary elite.”^[10] According to Sneath, the political form of the medieval Kazakhs is “elective monarchy” that “might be notionally placed somewhere between autocratic and ‘headless’ aristocratic orders.”^[11] In my understanding, the bi institution makes nomadic society of the Kazakhs different from that of Mongolia, because, as one of the examples, the supreme judges (tȯbe bi) representing the voices of commoners not only had adjudicating functions, but also a real political power in the respective administrative division (zhu̇z) and actively participated in international negotiations working for the strategic development of the region. Sneath’s examples on drawing up code of laws at the high level of ruler’s meetings and punishment rules in Mongolian society somehow found resemblance in medieval Kazakh culture because of Chinggis Khan’s invasion of the Kazakh steppe in the thirteenth century and its further impact. However, in the case of the Kazakhs the supreme judges actively participated in the drafting and discussion of the codes, others could have been members of the ruler’s council (Khan kengesi). Discussing the role of aristocracy in statecraft and nation-building, Sneath does not consider the issues of public perception and the articulation of fairness by commoners.

Among Western scholars, an important contribution to the study of the bi institution and Kazakh customary law, in particular how they were shaped by colonial power, was done by Virginia Martin with her dissertation and book respectively in 1996 and 2001.^[12] Even so, Martin considers only the Middle zhu̇z and the nineteenth century, as well as customary law and the Kazakh judiciary that existed before the reforms by the Russian colonial administration. She discusses how and why customary law of the Kazakhs was adapted to the changing circumstances and remained influential despite the reforms. This approach helps us to see what makes the bi institution still relevant in the twenty-first century.

Apart from the aforementioned literature, the works of Kazakh and international scholars including Sergeĭ Kliashtornyi and Tursun Sultanov (1992), Anatoly M. Khazanov (1994, 2019), William and Fidelity Lancasters (1998), Michael Khodarkovsky (2002), Rafis Abazov (2007), Beatrice Teissier (2011, 2014), Rosa Mukhambetkalieva and Gul’aim Mukhambetkalieva (2017), Alexander Morrison (2018), Joo-Yup Lee (2019),^[13] as well as many others were analyzed as secondary and tertiary sources. They were used for studying nomadism, Kazakh law, judiciary and statecraft to discern the historical framework, foundation, and development of Kazakh statehood, governance and its legal culture, along with its underlying political, geopolitical and economic conditions.

Brief Historical and Sociopolitical Overview

The most significant and powerful political organization in Central Asia was that of the nomadic Kazakhs.^[14] Their tribal confederation existed within a defined territory, where “the constituent groups” of that confederation “remained economically and politically independent.”^[15] The constituent groups were three zhu̇z, an administrative division of the Kazakh steppe that was based on tribal kinship. The Great zhu̇z (U̇ly zhu̇z) covered the south and southeastern parts of the Kazakh territory; the Middle zhu̇z (Orta zhu̇z) covered the central and eastern parts; and the Junior zhu̇z (Kīshī zhu̇z) covered the western part of the Kazakh steppe.

The Kazakhs had a nomadic and semi-nomadic lifestyle determined by natural and climate conditions. The economy was grounded on nomadic pastoralism: migration of the whole population with herds between spring (kókteu), summer (zhaĭlau), fall (ku̇zeu), and winter (qystau) pastures depending on seasons and access to grass and water within the defined territory of each tribe and nomadic community.^[16] Nomadic pastoralism enabled the Kazakhs to use land and scarce water resources in an ecologically rational way,^[17] and made it difficult to have the land as private property as it was in common use.^[18] Freedom of movement allowed the nomads to get easily away from the ruler’s oppression.

For the purposes of this research, I will be looking at Kazakh history from the medieval period to the beginning of early modern times in order to understand the traditional bi institution of the nomadic Kazakhs. Despite the fact that the Junior zhu̇z’s Khan Abulkhair expressed an oath of allegiance to the Russian Empire in 1731, the “primary goal” of the eighteenth-century’s Russian authority towards the Kazakh steppe was “the establishment and reinforcement of diplomatic ties” and the Kazakhs maintained formal independence.^[19] This allowed the bi institution of the eighteenth-century to remain unreformed.

In the nineteenth century, the Kazakh statehood and its customary law were faced with the Russian Empire’s immense reforms to “pacify the Kazakhs” and “make them abandon their nomadic lifestyle,”^[20] “introducing its own increasingly comprehensive forms of direct administration.”^[21] The Kazakhs were forced into becoming sedentary. Consequently, the traditional bi institution was not favored by the Russian Empire and “the expanding power of the tsarist state” took a variety of steps to eliminate traditional judiciary to boost imperial power and domination.^[22] The liquidation of the bi institution and its replacement by a justice of the peace (commissioner of the peace) by the Russian Empire was one of the steps taken. The Tsarist administration’s temporary provisions of 1868 introduced official bis to be appointed by Russia, and these bis were encouraged to use Russian law in their adjudications.^[23] The Russian common imperial courts created on the Kazakh steppe at the early stage of official relations were strengthened in the nineteenth century, narrowing the application of Kazakh customary law and the jurisdiction of the bis by introducing legal novelties, which were more of an administrative and military nature than judicial.^[24]

Who Were Traditional Bis in Kazakh Nomadic Society and What Was Their Value in the Nation-building?

There is an opinion that the etymology of the word bi is of Turkic origin. In eastern countries a bi (bek, bey) in most instances signified an appointed official by the supreme ruler, invested with an administrative and governing power, or a noble person.^[25] Unlike in those countries, in nomadic Kazakh culture bis were neither appointed persons nor officials, but judges from ordinary citizens representing a voice of justice that came from the demos and perceived as such due to popular recognition. Bi could be any person regardless of age. They were respected by society and received popularity in the steppe by virtue of their ability to adjudicate disputes fairly—grounded on comprehensive knowledge of customary law (including natural phenomena’s patterns)—and their gift in eloquence that was often expressed in rhythmic poems improvised on the spot.

In the Kazakh language, bi firstly means “a judge,” who very often also filled the role of a leader of the clan (ru) if he was able to solve managerial and economic issues of the community.^[26] The “identity” of the bi was predominantly developed as a justice-rendering institution.^[27] The bis were able not only to adjudicate, but participate in customary law-making and create legal norms, interpreting them. Depending on the bi’s personal skills and people’s recognition, the prominent ones led diplomatic missions of the relevant administrative division (zhu̇z) to protect the national interests in negotiations with foreign countries. The most influential bis were recognized as supreme judges (tȯbe bi) and could in parallel have advisory roles to a ruler.^[28]

For the disputing parties a reputation of a bi as a fair and wise person was tremendously important in choosing a judge, and “some bis were models of integrity” so that “nomads came from several days’ travel away to have their disputes heard by a particular bi.”^[29]

The figure of Taĭkeltīr bi (1690—eighteenth century) could be taken as an example of a bi’s personality. Taĭkeltīr bi was seen by adult bis as a promising teenager capable of adjudicating fairly when he was a thirteen-year-old child; later on, Taĭkeltīr was trained by Tȯle bi (a supreme judge of the Great zhu̇z) and he became a well-recognized wise judge and a leader of the nomadic communities. As such, Taĭkeltīr bi led a diplomatic mission of the Kazakhs to the Mongol Khung Taiji to release captured people and retrieve livestock.^[30]

In the following depiction of a fair bi in rhythmic words improvised on the spot by Taĭkeltīr,^[31] we may see that the adjudication in traditional Kazakh nomadic judiciary was held without emotions and impartially, and each case was considered thoroughly:

This poem proves that the Kazakh traditional judicial decision was based on a judge-made or case law. Rhetorical and concise phrases used by bis as arguments during judicial trials meant that they could become principles in ongoing legal traditions and be used in consideration of analogous cases.^[32]

A bi himself played “a key role” in the functionality of customary law,^[33] making it vital and flexible in the face of changing social, economic, political, cultural, and environmental conditions. General norms of customary law were applied depending on the specific circumstances of the case at hand. As an example, in the case of a murder, Kazakh customary law demanded material compensation, defining its minimum and maximum limits, but the exact amount of compensation was determined by differentiating circumstances (who killed and was killed, how and in what circumstances, the presence of witnesses).^[34]

The bi institution was a practical and rational tool used by the nomadic Kazakhs to support the peace and well-being of tribal communities. That is why it was very important for the bi as well to see to what extent the decision on the case would affect not only further relationships between the litigants, but also was appropriate for their economic conditions in order to “secur[e] subsistence living for themselves [disputing parties] and their livestock.”^[35]

The traditional judge clearly and deeply understood that the outcome of a trial and the result of a dispute resolution should not be imposing material compensation on the shoulders of a guilty party, neither should it be about profit making for one of the disputing parties or punishment per se, but instead the avoidance of conflict deterioration, bringing peace to the disputing communities and the reinstatement of the well-being of both communities. Justice in Kazakh nomadic culture was perceived “as a mutual satisfaction, restoration of the harmonic legal order that existed prior to a dispute and achieved via reconciliation of the disputing parties.”^[36]

The ability to adjudicate could have been transmitted within the family from one generation to another. According to nineteenth-century witnesses such as Louis Heinrich von Balluseck (1822–79), a Russian military officer and statesman, in the Kazakh steppe some bis had such a strong reputation that they were able to retain this status permanently for their lifetime, and their most talented children were taught and trained by solving minor cases via participation in the trials, such that the family would have a reputation as a family of bis.^[37] According to Kazakh scholar Shoqan Uălikhanov (1835–65) the offspring of the most influential Qazybek bi (1666–1763), a supreme judge (tȯbe bi) of the Middle zhu̇z, such as Bekbolat bi (1714–90), Tīlenshī bi (eighteenth century), Alchynbaĭ bi (1784–nineteenth century) developed skills and “inherited” knowledge from and due to their ancestors.^[38] Qazybek bi himself was a son of Keldībek bi (1665–eighteenth century).

Supreme judges like Tȯle bi (1663–1756, the Great zhu̇z), Qazybek bi (1666–1763, the Middle zhu̇z), and Ăiteke bi (seventeenth to eighteenth centuries, the Junior zhu̇z) were actively involved in the creation of the Code of Tăuke khan’s Zhetī Zharghy (Seven Charters of Tăuke khan) (seventeenth to eighteenth centuries).^[39] Zhetī Zharghy, as an example of a khan’s legislation, was an oral collection of maxims that covered civil and penal law, judicial trials, and punishment for wrongdoings including the death penalty, applied to matrimonial issues and contained taxation rules, as well as other provisions.

We cannot say that bis were the only judges in the Kazakh steppe, but the heaviest burden of the judiciary rested on their shoulders. Generally, intertribal disputes, the murder of nobility, and disputes among sultans were adjudicated by a khan (a Kazakh ruler) and sultans (Kazakh nobilities elected among offspring of Chinggis Khan). Khans and sultans considered, however, very important cases with the participation of bis and in the presence of the people.^[40]

What Was the Customary Law of the Nomadic Kazakhs Like?

Knowledge of customary law was an important requirement for being recognized as a bi in the Kazakh nomadic tradition. A bi “held this position by virtue of his knowledge of tribal law.”^[41] Kazakh customary law (zharghy) was unwritten and oral.

To quote Virginia Martin, the customary laws of the Kazakhs were “the guiding principles governing the behavior and interaction of individuals within the nomadic community and its kinship structures, which were upheld and enforced in everyday life by commonly accepted obligations, responsibilities, sanctions and forms of punishment.”^[42] It had four main legal sources: (1) general customary legal norms; (2) legislation of a ruler (a khan) such as the Code of Qassym khan (Qassym Khannyng qasqa zholy, sixteenth century), the Code of Yessīm khan (Yessīm Khannyng eskī zholy) (sixteenth to seventeenth centuries), or the Code of Tăuke khan ‘Zhetī Zharghy’ (Tăuke Khannyng Zhetī Zharghysy) (seventeenth to eighteenth centuries); (3) judicial precedents set by those bis who were recognized by people as leading supreme judges (bidīng bilīgī); (4) erezhe—the resolutions adopted by the bis’ judiciary conventions concerning the application of customary norms in certain cases and circumstances.^[43]

Trial Procedure in Brief

The judicial remedy of defending one’s rights before a bi was available to everyone, regardless of tribal origins, social status, or even ethnicity. Shoqan Uălikhanov in his official note enumerated the facts and figures on when Russian migrants lodged cases before the traditional bis.^[44] To receive an impartial decision, most of the time the litigants preferred the case to be adjudicated by a traveling or a passing bi.^[45] Depending on the case’s complexity, consideration of a case could be done by one or three bis, where one of the three chaired the trial. The opinion of a chairing judge was decisive in ruling on the case.^[46]

There was no defined statute of limitations for lodging a complaint, but the passage of time could have been a reason to refuse to consider a case.^[47] Disputing parties should give their consent to be heard by that bi.^[48] In the presence of a chosen bi, the parties placed horse whips in front of themselves, thus expressing their consent to the initiation of the trial and their willingness to execute any decision of the bi. Both parties had the right to present witnesses. Witnesses needed to have an esteemed and reliable reputation, and not have been previously caught in perjury or have otherwise tarnished their image.^[49]

All judicial trials were public, and case examination and adjudication were held in front of the people. The publicity of the trial guaranteed transparency in presenting arguments and in justification of litigants’ and judges’ positions, as well as fairness of the bi’s decision. A judicial trial was a competition in oratorical skills, and talented bis were able to give a verdict in improvised on-the-spot rhythmic poems.

For case consideration, a bi received remuneration (bilīk) at a rate of one-tenth of the granted claim; he also received the fines that were imposed on violators of the trial procedure; the compensation that was received by the winning party due to claim satisfaction was distributed by him among any people, other than his close relatives.^[50]

Execution of the bi’s decision was intended to be carried out voluntarily. If a guilty party did not fulfill the bi’s decision of his own will and refused to pay the necessary amount of money or any compensation assigned by the bi, the legal right to cattle rustling (barymta) as a coercive measure authorized by the bi came into force.^[51] Barymta is done collectively by the winning party together with his relatives without using weapons and during the daytime; an intention to commit barymta should be announced publicly and a defendant should be informed in advance of the intention. The value of the cattle rustled needed to be proportionate to the amount of the claim, and the cattle should be returned upon the faithful execution of the bi’s decision by the guilty party.^[52]

Contemporary Dispute Resolution Institutions in Kazakhstan

The Mediation

Kazakhstan’s independence provided an opportunity to bring back nearly forgotten traditional roots and formalize the unofficial practices that existed in Kazakh society to end a dispute amicably while not making the dispute publicly known, avoiding public censure and long-lasting official litigation. The contemporary legal system of Kazakhstan greatly differs from the one that existed in the medieval period and the beginning of early modern times. Because the country employs a positivist approach, the national law is written and accepts only textualized documents as evidence of a legal norm. With regards to the dispute settlement institutions, this signifies that their establishment and functionality be regulated by the written documents and legislation, not by the customary law.

On January 28, the 2011 Law of Kazakhstan “On Mediation” was adopted for the first time in the history of Kazakhstani independence.^[53] The development of the mediation institution and working on its shortcomings is widely promoted by the political documents such as the Legal Policy Concepts for 2010–2020 and 2021–2030.^[54] Using the mediation in dispute resolutions penetrated into other national legislation, in particular, into the Penal Code of Kazakhstan (Article 68), the Code of Penal Procedure (art. 85), the Code of Administrative Procedure (arts. 120–121), and Code of Civil Procedure (arts. 24, 174, and 179–180).^[55]

Modern Republic officially introduced mediation as an alternative dispute resolution institution applicable to a wide range of disputes between individuals, legal entities, and civil servants, including civil, labor, family, administrative, penal, and other relations (art. 1.1). Mediation may take place before the court trial or in the course of a civil, administrative, or penal trial. As per the language of the law, the mediation institution pursues two goals: to reach dispute resolution that suits both parties and to reduce the conflict between the parties. The mediation rests on the principles of voluntariness, equality, independence, impartiality, and inadmissibility of interference into the mediation procedure and others (art. 4). The disputing parties choose a mediator and mediations procedure, they bear equal rights and duties, and the mediator must be impartial and carry out the mediation for the interests of both parties, ensuring their equal participation in the procedure. The value of the mediation is in its simplicity and speed.

The goals of the mediation and the principles mentioned, as well as the simplicity of the procedure, and voluntary execution by the parties in a manner and within the terms envisaged by the dispute settlement agreement make the mediation institution similar to the bi institution discussed in the first part of this chapter. But, in comparison with the bi, because of a contemporary positivist approach to law, the mediation procedure starts only upon signing a written agreement and ends with the conclusion of a dispute settlement agreement. The disputing parties at any time may refuse to participate in mediation, and there are age requirements for the mediator and other distinguishing elements as well.

Contemporary Councils of the Bis

At the end of his presidency, former President of Kazakhstan Nursultan Nazarbaev raised questions about the revival of nomadic traditions. In the 2017 article “The Course Towards the Future: Modernization of Kazakhstan’s Identity,” Nazarbaev stated that modernization and the spiritual renaissance of society should be founded on valuing the national roots and preserving traditional culture.^[56] In the 2018 article “The Seven Facets of the Great Steppe,” he put forth the message that the history and cultural legacy of the Kazakhs and their contribution to world civilization had not received sufficient scholarly study in the world.^[57] Properly studying the Kazakhs’ nomadic legacy would help to reinterpret the role of steppe societies in global history.

The President’s political initiatives influenced the formation of the Council of the bis as an advisory-consultative out of court dispute resolution institution.^[58] By 2019 in the West Kazakhstan region the Councils had been formed at all court levels, incorporating twelve provinces, ten districts, and ninety five villages.^[59] Usually the Council consists of reputable residents, and its members must be wise and know Kazakh customs perfectly, and be able to solve disputes fairly.^[60] The Chairman of the Council is called tȯbe bi, which replicates the traditional legal custom of the nomads. In the Zhambyl region there are 566 bis—members of the Councils—who were chosen as wise and respected in society, have good public standing, and have enough life experience.^[61]

The work of the Council is based on the regulations covering the duties, issues of creation, functionality, and termination of the Council. The regulations are usually adopted and approved by the local representative and executive bodies.^[62] For instance, the Regulations on the Council of the bis drawn up by the judges of the West Kazakhstan region had been approved by Mayor’s Decree No 4 on January 11, 2019.^[63] In February 2019 in the West Kazakhstan region, the chairman of the Burlin district court and the mayor of the Burlin district approved the members of the bi Council.^[64]

The help of the bis can be used in the resolution of disputes that arise from civil and administrative cases for which the resolution procedures are permitted by the legislation of Kazakhstan. The Council considers the penal cases of small or medium gravity and penal offences (clause 2.3 of the Model Regulations on the Council of the bis).^[65] The bis consider cases based on citizens’ or legal entities’ written complaints. The meetings of the Councils are open to the public, and their decisions serve as recommendations.^[66]

The official explanation of the reasons for the creation of the Council of the bis is a revival of traditional nomadic Kazakh judiciary. Referring to the founding Regulations, the primary tasks of the councils are to revive traditional justice and “the skills of ancestors to resolve a dispute peacefully,” to reduce conflicts and prevent wrongdoings in society, maintain society’s stability and unity, and to keep and promote customs and traditions.^[67] Even the round table convened by the local courts with participation of the officials, judges, and members of civil society in 2019 was called “The Council of the Bis Brings Peace.” According to Chingirlau district court’s Chairman Mirzhan Kadyrbayev, who expressed his opinion at that round table, “the Council of the bis revives a historical judicial legacy of the Kazakhs and helps to settle disputes between inhabitants on humanistic principles, reconciles even hostile parties, and develops the proposals for strengthening stability, public harmony, and national unity.^[68]

The popular perception and image of the Council is a revival of the traditional judiciary as well. Examples of public perception can be taken from local newspapers: the local news agency of the Aral province, as evidenced in the article “The Council of Bis Revived the Traditions of the Ancestors,” considers the bis one of the best heritages that comes from old traditions.^[69] The local news agency of the Zhambyl region considers the role of the bis in Kazakh history as powerful pillars for the unity and integrity of the nation, and argues that institutional revival is important for further development of contemporary Kazakhstan.^[70]

In practice, such councils are usually very active in rural places. In 2018, the Councils of the bis in West Kazakhstan considered fourteen cases overall.^[71] In the Chynggyrlau district of West Kazakhstan, the cases considered were about land disputes and debt repayment.^[72] In autumn 2018, court No 2 of Kaztalovka district of West Kazakhstan considered a civil suit between habitants of Kokterek village on moral compensation. Before the start of civil proceedings, the litigants heard explanations about the recourse to the Council of the bis’ services; the parties used the opportunity to reconcile, and the case was terminated.^[73] In spring 2019, the Terekty district court considered a case on returning livestock; the parties resolved the dispute using the help of the Council of the bis.^[74] In the Almaty region, the Council of bis, which consists of public figures, local members of the intelligentsia, and authoritative and respected elderly people is used in the resolution of disputes between neighbors, spouses, and relatives for restoring their relations.^[75] In the Aral province of Qyzyl Orda, a penal case on hooliganism was terminated due to the help of the Council of bis.^[76]

Apart from consideration of minor legal cases, the Council helps to resolve inter-village disputes to improve the livelihood of the neighboring people, such as settling management issues and participating in negotiations. In Kaztalov province, the Council, consisting of seven members, resolved the problem between farms and inhabitants on water descent into the lake in Konys village.^[77]

Conclusions

The first part of this chapter is dedicated to studying the historical roots of the traditional justice-rendering bi institution in Kazakh nomadic society, which was formed and used during the fourteenth through eighteenth centuries. This sheds light on the right to a fair trial and its articulation by nomads, and depicts a model of the bi. Recognition of a judge according to his merits and simplicity, and the functional efficiency of the institution aiming to secure the well-being of the communities made the bi institution a resilient instrument representing the voices of ordinary people that still attracts the attention of the contemporary generation of Kazakhs.

The second part of this chapter is an attempt to describe and understand mediation as one of the alternative dispute resolution institutions functioning in modern Kazakhstan. There are more differences between the institution of the bi and mediation than similarities, due to  differences between the historical times of their existence and the further development of society. In comparison with the institution of the bi, the mediators do not apply law in their adjudication, while knowledge of national law is not mandatory for being a mediator, which makes the modern institution weaker than the medieval one. However, both institutions do not aim to punish someone and define a guilty party or victim, but rather mutual satisfaction and reconciliation are conceived as their primary task. There are formalized requirements for a position of mediator such as age, which cannot be traced to the classical medieval bi. Requirements for a mediator, including independence, impartiality, an impeccable reputation, and public standing resemble requirements for the medieval figure of the bi, despite the existence of both institutions during different historical eras. The mediation institution itself and such principles as voluntariness, equality, independence, impartiality, inadmissibility of interference into the mediation procedure, and confidentiality have been formalized.

The creation of the Council of the bis is mainly grounded on political initiatives: the institution does not have solid legislative grounds. There is no law adopted by the Parliament legitimizing it. The institution is not separated from local executive bodies and its composition is approved by the local administration only. The institution is thus mainly upheld by local communities and used in the provinces and villages. The basis for their existence and functionality is public support based on the historical and cultural nomadism of the Kazakhs. The Council of the bis is more similar to the traditional nomadic institution of the bis than mediation. This tool complements the mediation institution and could be classified as a soft power in regulating social interactions.

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Acknowledgments

I am dedicating this article to the memory of my parents Yunis Ybrashevich and Qadyr Omarovna. I express my gratitude to the Melikian Center of Russian, Eurasian and East European Studies (Arizona State University) and to the Director of the Center, Dr. Keith Brown, where the materials for the first part of the chapter were collected and analyzed. I am grateful to Mrs. Malika Kulmukanova as well, who helped me to understand the speeches of the Kazakh bis, and to Ms. Tomiris Qadyrzhanova (Master’s in International Law) for the fruitful discussion and her help in collection of materials for the second part of the chapter.

Funding

The first part of the chapter was written thanks to the generous funding of a Fulbright Visiting Scholar U.S. Department grant received by Dr. Beibit Shangirbayeva.