Volume 04 Issue 02-2024
12
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
12-17
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article analyzes and compares the legal developments of the countries of Central Asia in the context of
digitalization of all aspects of public life, including the legal sphere.
It is noted that the judicial system of these countries is developing along the same vector towards the creation of a
truly independent judicial system, which does not exclude the presence of certain aspects in development, in
particular the institution of jury trial in Kazakhstan, attempts to create such in Kyrgyzstan, etc. or those common and
distinctive features that took place in the systems of sources of law in these countries regarding the status of decisions
of the Supreme Courts. The article also notes those trends in the legal development of these countries, such as the
influence of English law and its application in the field of international cooperation, more precisely in the field of
business and commerce.
KEYWORDS
Central Asia, region, legal development, system of law, legal system, sources of law, judicial system, jury trial, status
of decisions of higher courts, English law, influence of English law.
INTRODUCTION
In this article, under the trends of regional
development of law, we understand the main
directions of development of modern law in the space
occupied by Kazakhstan, Uzbekistan, Turkmenistan,
Tajikistan and Kyrgyzstan. Here the question may arise
Research Article
SOME ASPECTS OF LEGAL DEVELOPMENT OF THE COUNTRIES OF
CENTRAL ASIA
Submission Date:
January 31, 2024,
Accepted Date:
February 05, 2024,
Published Date:
February 10, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue02-03
Akhmedshaeva Mavluda Akhatovna
Doctor of science in law, Professor, Department of Theory of State and Law, Tashkent State University of Law,
Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 02-2024
13
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
12-17
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
why it is the law of these states that is analyzed
separately from the development of the world legal
field. It must be emphasized that there are sufficient
grounds to assert that these countries have many
common aspects of development that serve to unite
them rather than divide them. The commonality of
historical development, religion, culture, customs,
mentality of these countries, and the territorial region
in which they are located, are the basis for uniting
these countries into a separate group.
MAIN PART
Currently, in the context of all-round digitalization not
only of the economy, but also of all spheres of public
life, a certain scientific and practical interest is the
analysis of the development of law in the countries of
the Central Asian region, as part of the global legal field
in general, as well as an important part of the post-
Soviet legal space, occupied by the CIS countries.
Since the need to study national legal systems, as M.N.
Marchenko notes, “is determined not only by the
desire to expand the traditional legal horizons, limited,
as a general rule, only by the circle of certain national
legal problems, but also by the quite natural need of
researchers for a deeper and more versatile study their
own legal systems through the prism of other legal
systems."[1].
Is there any need to add to the above that this is not
only a requirement of modern legal studies, but also a
call of the times. After all, as never before, universal
global and national development are interconnected in
all spheres of public life, not only in science, but also in
legal studies.
In this regard, we cannot but join the opinion of the
well-known legal theorist S.S. Alekseev that the
national limitations of legal knowledge within a given
country, its isolation on purely national positivist
material, with all its importance for every lawyer, are
ultimately fatal for jurisprudence as a true science [2].
In view of the foregoing, we consider it necessary and
useful to attempt to analyze the development of law in
the countries of the above-mentioned region, their
relationship with each other, on the one hand, with
international and European law, on the other hand.
The constitutional development of these states in the
transitional period deserves special attention. In the
post-Soviet era, at the beginning of independence,
these states faced (arose) the vital question of ways of
further development. At that extremely difficult time,
they chose the path of democratic development. But
everyone knows that democracy is not formed by
desire alone. To do this, the political, socio-economic
and spiritual foundations of society must mature.
Building their state-legal development at the initial
stage of their independence, the Central Asian
countries were based both on their national
experience of statehood, as well as on the state-legal
experience of developed countries, which was
reflected in the Constitutions they adopted.
As is known, the legal system of the states of Central
Asia is close in its parameters to the Romano-Germanic
legal family. Consequently, the main source in this legal
family is the written law, but not judges who only apply
law to a specific case, not creating it themselves. And
the decisions of the Plenums of the Supreme Court are
also aimed at ensuring that the relevant norms are
applied by the courts in an appropriate manner. At the
same time, although the legal systems of the countries
of this region are close to the Romano-Germanic legal
family, today, in the context of globalization, this legal
space cannot be called a zone free from the influence
of the Anglo-Saxon legal family.
Volume 04 Issue 02-2024
14
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
12-17
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
We can observe the influence of this legal family,
especially in the area of business and investment.
Based on the experience of the Astana Financial and
Business Center, similar to the experience of
Singapore, Hong Kong and Dubai, where English law is
applied for foreign investors, and also bearing in mind
the possibility of applying English law in Uzbekistan, it
can be argued that this process appears before us as a
development trend rights in the region.
Continuing reflections on the trends in the
development of regional law, it is necessary to state
that the legal development of the region is not free
from the influence of trends in the development of
European law. For example, if we take the trend of
increasing the role of judicial decisions in the Romano-
Germanic legal system or the trend of the influence of
English law on the Romano-Germanic legal family, then
we can observe that these trends go beyond the EU,
affecting, among other things, the legal systems of
countries Central Asia.
It should be noted that in the domestic legal literature
there are also different approaches to the legal nature
of the decisions of the Plenum of the Supreme Court.
The authors of these approaches base their vision on
the fact that “Judicial acts that have entered into forc
e
are binding on all state bodies, public associations,
enterprises, institutions and organizations, officials,
citizens and are subject to execution throughout the
territory of the Republic of Uzbekistan.
Failure to comply with a judicial act entails liability
established by law”[3]. For example, Doctor of Law F.F.
Mukhitdinova, recognizes the legal nature of the
decisions of the Plenum of the Supreme Court, and
considers it necessary to enshrine them in legislation.
According to the scientist, the courts, in addition to law
enforcement, certainly carry out a law-making function
[4].
This scientific approach is also typical of the legal
system of other states in the region. We can observe
that in Kazakhstan a peculiar practice has developed
on this issue. So, academician of the Academy of
Sciences of Kazakhstan R. Maidan Suleymanov writes:
“Although the legal nature of the decisions of the
Constitutional Court and the Plenums of the Supreme
Court in Russian Federation is still being discussed -
whether they are normative legal acts or precedents -
this issue is resolved at the constitutional level in
Kazakhstan. Decisions of the Constitutional Council
and normative resolutions of the Supreme Court of the
Republic of Kazakhstan are binding normative legal
acts. [5].
It should be noted that although judicial decisions,
especially decisions of the Plenum of the Supreme
Court, are de facto binding on the respective courts, it
is still difficult to consider them as rules of law, since
they are inherently law enforcement in nature.
They do not create new rules, they are guidelines
aimed at ensuring the correct application of the
relevant norms in practice. As Professor M.N.
Marchenko noted: “Unlike orders, decrees and orders
on specific issues, a legal norm is addressed not to an
individual, but to a circle of people. A legal norm
continues to operate after its implementation in social
relations and human behavior. [6].
Thus, although the decisions of the Plenum of the
Supreme Court have some formal features of a norm
of law, such as general obligatoriness and an
expression of the will of the state, they cannot be
considered a norm of law. Since these decisions do not
create new rules of conduct, they only aim to ensure
the effective application of existing norms of law. So,
the realities of today's judicial practice in relation to
decisions of higher courts. Considering the peculiarities
of the development of law at the regional level, it
Volume 04 Issue 02-2024
15
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
12-17
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
seems necessary to pay attention to the discussions
that the decisions of the Supreme Court have a
precedent character to one degree or another.
In the scientific literature of the CIS, including among
the scientists of the region, there is a discussion about
the precedent nature of decisions of higher courts of
the supervisory instance, focusing on the question of
whether these decisions are precedents or normative
legal acts. Here it seems not superfluous to recall that
this issue is not only scientific and theoretical, but also
practical. It should be recalled that several decades
ago, the decisions of the Presidium of the Supreme
Arbitration Court of the Russian Federation gradually
became de facto binding on lower courts when
considering cases of the same type.
This circumstance was confirmed by the Constitutional
Court in 2010, and was also reflected to a certain extent
by the administrative code of procedure and the civil
procedural code of the Russian Federation[7].
At this point, attention should be paid to the fact that
during the aforementioned period, the Supreme
Arbitration Court (which operated until 2014, and then
became part of the Supreme Court) employed highly
qualified scientists, judges with extensive experience,
whose decisions were the most optimal solution to the
dispute, and it seems that this circumstance may have
played an important role in the gradual acquisition of
the precedent nature of the decisions of the above
court.
And therefore, it is quite logical that the lower courts
took these decisions as a basis, a model for their
decisions.
In this regard, the question of how things stand in the
legal science and practice of the countries of the region
on this important task is interesting. Take, for example,
the solution of this issue in Kazakhstan, then we can
see the presence of sufficient certainty. According to
academician M. Suleimanov, in Kazakhstan the
decisions of the Constitutional Court and the Supreme
Court are binding, but cannot be a precedent. At the
same time, the aforementioned author does not
exclude such a possibility in the future: “decisions
of
the Supreme Court in specific cases should be gradually
transformed into standard judgments of other courts
of Kazakhstan in similar cases ...” [8].
If higher courts with highly qualified judges, when
considering relevant cases in the first instance, make
the most reasonable, legal and fair decision, then it is
possible that they will become a de facto model for
lower courts when considering cases of the same type.
Thus, it can be said that as a result of the legal
development of the region, including the development
of judicial practice, in particular, the advanced training
of judges, the most optimal decisions of these courts,
following the results of consideration of certain
categories of cases as a first instance, could play the
role of a certain model in their qualities, the basis for
lower courts when considering cases of the same type.
When it comes to general and specific aspects of the
development of law in the countries of the Central
Asian region, it would be logical to pay attention to
their judicial system. Currently, the following system of
courts operates in Uzbekistan, including: the
Constitutional Court of the Republic of Uzbekistan;
Supreme Court of the Republic of Uzbekistan;
military courts;
Courts of the Republic of Karakalpakstan, regional and
Tashkent city courts;
Administrative
court
of
the
Republic
of
Karakalpakstan, administrative courts of regions and
the city of Tashkent;
Volume 04 Issue 02-2024
16
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
12-17
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
inter-district, district, city courts for civil cases;
district, city courts for criminal cases;
inter-district, district, city economic courts;
inter-district administrative courts[9].
Consequently, the legal systems of the region exist and
function interacting and mutually enriching each other.
The development of international relations in the
context of globalization between states determines
the mutual exchange of experience in the legal sphere.
[10].
CONCLUSION
Based on the analysis of some areas of development of
the legal systems of the countries of the Central Asian
region, we can come to some conclusions:
1.In the modern development of the legal systems of
the Central Asian states, there are quite common
features due to the commonality of their history,
culture, religion and historical destiny. These legal
systems in their parameters belong to the Romano-
Germanic legal family;
2.At the same time, it is impossible not to notice a
certain specificity in the development of the legal
systems of these states, not only associated with
different levels of economic, political and social
development, for example, in the structure of the
judicial system, in the codification of legislation, in the
constitutional consolidation of the form of the state,
etc.
3.On the example of the legal systems of these
countries, one can see the influence of the Anglo-
Saxon legal system, more precisely, English law in the
field of legal protection of business, commerce, etc.
Here we can see a refraction, a reflection of the global
trend in the development of law in a particular region;
4.In the legal development of these countries, trends
are traced, such as convergence with European law, as
well as proximity to the legal systems of post-socialist,
now sovereign CIS states;
5.At the present stage of development of the legal
systems of these states, there are great opportunities
and effective potential for mutual cooperation and its
further deepening.
REFERENCE
1.
Marchenko M.N. Problems of the theory of state
and law. M.: Prospekt, 2011. (768s.) P.3.
2.
2 Alekseev S.S. The problem of the general theory
of law // Bulletin of the Humanitarian University.
Series "Law". 2000, No. 1 (2). P. 6.
3.
Law of the Republic of Uzbekistan “On Courts”
dated July 28, 2021// https://www.lex. Uz
/ru/docs/5534928
4.
Mukhitdinova F.F. Formation and development of
the judiciary in the Republic of Uzbekistan.
Abstract on sois. uch. degree doctorate legal
nauk.T.: 2012.S.23.
5.
Suleimenov M. Prospects for the introduction of
judicial precedent into the legal system of
Kazakhstan. C.4. http://pravo.zakon.kz.
6.
6 Marchenko M.N. Problems of the theory of state
and law. Moscow: Prospekt, 2011.-S.610-611.
7.
7. In 2014, due to judicial reorganization in the
Russian Federation, this practice ceased to exist
8.
8. Mukhitdinova F.F. Formation and development
of the judiciary in the Republic of Uzbekistan.
Abstract on sois. uch. degree doctorate legal
nauk.T.: 2012.S.23.
Volume 04 Issue 02-2024
17
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
12-17
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
9.
9. Law of the Republic of Uzbekistan “On Courts”
dated July 28, 2021// https://www.lex. Uz
/ru/docs/5534928
10.
10.See also: Ahmedshaeva M.A. The role and place
of reception of law in modernization of law//
https://www.paideumajournal.com/gallery/4-
sep2020.pdf
