The goal of this article is to provide a general overview of current research concerning the use of religious norms as an instrument of social regulation in the North Caucasus. The use of Islamic legal norms is an example of legal pluralism, i.e., parallel coexistence of different legal systems or their separate legal norms. The author gives a detailed analysis of two aspects of the use of religious norms to resolve conflicts in the eastern part of the North Caucasus. He considers alternatives to the use of these norms and also social factors that motivate residents to resort to these norms. The choice of the eastern part of the North Caucasus (Dagestan, Chechnya, Ingushetia) as a research area is determined by the fact that legal pluralism is much more widespread there than in the west of the North Caucasus.

Keywords: legal pluralism, Northern Caucasus, Dagestan, Chechnya, Islam, Islamic law.

Introduction

The purpose of this review article is to give the reader a general idea of the current state of research on the use of religious norms as a tool for social regulation in the North Caucasus. The application of religious law norms to resolve conflicts that are not related to the functioning of religious institutions proper is one of the factors that determine the role of religion in society. Modern countries and regions with a predominance of mu-

Kazenin K. Islamic law in the situation of competition of legal systems: the case of the North Caucasus / / State, Religion, Church in Russia and abroad. 2017. N 3. pp. 234-264.

Kazenin, Konstantin (2017) "Islamic Law in the Situation of Rivalry of Different Legal Systems: The Case of the North Caucasus", Gosudarstvo, religiia, tserkov' v Rossii i za rubezhom 35(3): 234-264.

The majority of the Muslim population differ both in the degree of research into the issue of the operation of religious legal norms in them, and, as far as can be judged on the basis of available research, in the real scale of this phenomenon.

In the North Caucasus, the use of the norms of religious law has an important feature, which consists in the fact that there these norms are not binding, in contrast to Russian legislation. In a number of North Caucasian republics, mainly in the North-Eastern Caucasus, a certain "renaissance" of Islamic legal norms has been observed after the collapse of the USSR, but it is possible to apply them in specific situations that require regulatory regulation only with the consent of the interested parties, and compliance with such norms, of course, does not and cannot have legal force support. At the same time, a real set of alternatives for resolving certain conflict situations may also include settlement based on the so-called "customary law" (adata), that is, norms established by the tradition of the North Caucasian peoples and not set by religion. In addition, in modern North Caucasian cities, the results of research suggest that the procedure for regulating disputes developed spontaneously in the post-Soviet years, which is not fully based on any of the existing legal systems (see below). Below, we will refer to all norms that are used in the practice of conflict resolution, but are not based on state legislation, as informal legal norms.

All this makes us consider the operation of Islamic legal norms in modern North Caucasian societies as a manifestation of legal pluralism( legal pluralism), that is, the parallel operation of various legal systems or their individual legal norms. With a brief description of this concept and the main approaches to its description, we begin this review (section 1). We will then present the main results of existing research on legal pluralism in the North Caucasus in the past and present (section 2). After that, we will focus in more detail on two aspects of the current use of religious norms for dispute resolution in the eastern part of the North Caucasus : the composition of alternatives to these norms (section 3) and the social factors that motivate residents to these standards (section 4). Choosing the eastern part of the North Caucasus (Dagestan, Chechnya, and Ingushetia) for research-

The reason for this is that the phenomenon of legal pluralism is more widely represented there than in the west of the North Caucasus.

1. The concept of legal pluralism and basic approaches to its research

Legal pluralism has been the subject of special study in the social sciences since the 1970s1. In the most general sense, legal pluralism is the simultaneous operation of two or more legal systems in a certain society. This phenomenon became clearly visible in different parts of the world in the twentieth century, as new States emerged as a result of decolonization. It turned out that in post-colonial countries there is often a very unexpected "mixture" of state laws that partially copy the legal system of the former colonizing country, the norms of local traditional law and religious norms.

A surprising phenomenon for many researchers was that such coexistence in a large number of countries was not limited to a short transition period, but led to a" balance " of different legal systems, to their long and fairly stable operation within one society. This raised a number of questions, first of all:

- why can different legal systems co-exist in one society, despite the fact that their co-existence clearly complicates the system of "rules of the game" operating in this society, allowing for a variety of ways to resolve the same conflict?

- are there any universal restrictions on the "compatibility" of different legal systems in one society, that is, on what forms of coexistence of legal systems are possible and which are not?

- what can disrupt the existing "balance" of legal systems that co-exist in one society, lead to the expansion or narrowing of the field of application of a certain legal system, or to the complete rejection of it by society?

^1. Among the earliest works on legal pluralism, we mention Griffiths, J. (1986)" What Is Legal Pluralism?", Journal of Legal Pluralism 24; Pospisil, L. (1970)" Legal Levels and Multiplicity of Legal Systems in Human Societies", Conflict Resolution 11(7).

Studies of legal pluralism have not yet provided convincing answers to all these questions. I must say that these studies have been of an emphatically interdisciplinary nature since their inception, which is quite natural, since the phenomenon of legal pluralism itself affects areas that fall under the jurisdiction of various sciences: law, sociology, political science, and anthropology. "Traditional" legal studies, which focus on the content of written, formalized legal systems, were not sufficient for the study of legal pluralism for the following reasons::

1. In the most common variant of legal pluralism, at least one of the existing legal systems does not have a generally accepted written version or is not fixed in writing at all, unlike the legal systems that jurisprudence usually works with;

2. In a situation of legal pluralism, it is important not only to understand the content of existing legal systems, but also to understand exactly how they co-exist: in what sphere each of them operates; what is the attitude of different members of society to them; whether situations of conflict arise between legal systems and, if so, how such conflicts are resolved; how do they exist and the resolution of such conflicts is related to the political processes taking place in society, etc. ²

Due to these circumstances, the study of legal pluralism is impossible without studying the norms of behavior, customs, informal agreements, political practices that have developed in society, as well as without taking into account the attitude of different social groups and individuals to the current legal systems. This is precisely what makes elements of sociological, anthropological, and political analysis necessary in the study of legal pluralism.

In our opinion, the currently available research quite clearly falls into several groups, depending on which of the disciplines is the dominant approach. Perhaps it is the lack of an interdisciplinary "equilibrium"

^2. For more information on the problems associated with the use of the concept of "law" in the study of legal pluralism, see Tamanaha, B. S. (2000) "A Non-Essentialist Version of Legal Pluralism", Journal of Law and Society 27(2): 296-321 and references in this work.

in most studies of this phenomenon, it is currently difficult to create a general theory of legal pluralism that answers the above questions.

In studies that consider legal pluralism primarily from the point of view of legal theory, the distinction between strong and weak legal pluralism proposed in Griffiths ' works is of fundamental importance.³ Strong legal pluralism is the spontaneous coexistence of two (or more) legal systems within the same society. As a rule, one of these systems is State legislation, and other legal systems operate in addition to or even against the will of the state. Weak legal pluralism is the coexistence of different legal systems in one society, approved by the state. In this case, the state itself acts as a "constructor" of a complicated version of legal relations, in which the spheres of operation of various legal systems are clearly delineated. An example of weak legal pluralism can be considered the system of so-called military-people's administration, which operated in some parts of the North Caucasus in the second half of the XIX-early XX centuries. Under this system, some cases were tried under Russian law, while others were tried under customary or Islamic law, and the choice of "jurisdiction" was strictly regulated by Russian state acts (for more information, see <url>). section 2). The most obvious case of strong legal pluralism is independent centers of legal regulation operating in migrant communities in countries where such communities exist for a short time and have not undergone any adaptation to local norms.

It should be noted that the juxtaposition of strong and weak legal pluralism against the background of a number of facts looks like a simplification, so that strong and weak legal pluralism should most likely be considered "ideal" types of this phenomenon, which in reality may not fully correspond to any of them. For example, there are cases where the State authorizes the coexistence of two legal systems, but there is no clear delineation of the areas of their application.-

^3. См., например: Griffiths, J. (2005) "The Idea of Sociology of Law and its Relation to Law and to Sociology", Current Legal Issues 49.

neniya. This situation, according to M. Voorhuva, ⁴ occurred at least in the first half of the 2000s, for example, in Tunisia, where State courts have the right to make decisions based on both the norms of State legislation and the norms of Islamic law (Sharia), and, for example, in divorce proceedings, the courts often use the following methods: they "mix" these two systems by referring to both of them in the same solution. In addition, a number of countries have recorded a situation in which it is difficult to clearly determine the extent to which the State is involved in the formation of legal pluralism. Thus, in Egypt during the presidency of Hosni Mubarak, according to B. Dupree ⁵, the system of Sharia courts was not created with the direct sanction of the state, but in practice it was actively supported by its representatives. This support was expressed in the frequent entry of police officers into Sharia courts, as well as in the refusal of the police to initiate criminal proceedings, even in the case of murder, if a Sharia reconciliation was reached between the perpetrator and the injured party.

In addition, the thesis of early works on legal pluralism, carried out within the framework of the legal-theoretical approach, that legal pluralism always implies the coexistence of legal systems in full, also seems to be a certain idealization. As F. Benda-Beckmann has shown, ⁶ in West Sumatra (Indonesia), both sharia and local customary law can apply in legal disputes between Muslims about inheritance; however, in cases of dispute, each party can refer to a rule that is favorable to it, regardless of whether other norms are observed in this inheritance case the same legal system. ^G. Woodman's research7 shows that the use of customary law norms by courts in a number of African States is an example of how this phenomenon can be applied.

^4. Voorhoeve, M. (2009) "The Interaction Between Codified Law and Divine Law: the Case of Divorce for Disobedience in Tunisia", IBLA: Revue de Vlnstitut des Belles Lettres Arabes 204: 267-286.

^5. Dupret, B. (2006) "Legal Traditions and State-Centered Law: Drawing from Tribal and Customary Law Cases of Yemen and Egypt", in D. Chatty (ed.) Nomadic Societies in the Middle East and North Africa: Entering the 21st century. London: Brill.

^6. Benda-Beckmann, von F. (2002) "Who Is Afraid of Legal Pluralism?", Journal of Legal Pluralism 47: 37-82.

^7. См., например: Woodman, G. (1996) "Legal Pluralism and the Search of Justice", Journal of African Law 40(2): 152-167.

It is adequately described only as the interaction of various specific legislative norms, and not the full legislative systems, since at any "point of choice" the alternatives relate only to the adoption/non-acceptance by the court of individual legal provisions of a particular legal system, and not entire legal systems (state legislation, customary law, etc.).

The most developed alternative to the legal-theoretical approach to legal pluralism is the political-economic approach. This approach seeks to explain the emergence of this phenomenon as a result of a clash of interests in society. According to the authors working within the framework of this approach, legal pluralism is the result of the struggle of different social strata or groups for control over certain assets. A tool in this struggle can be the imposition by different parties of different legal systems, each of which is most beneficial to the one who "promotes" it.

Conflicts of interest as a basis for the emergence of legal pluralism are well studied, for example, in works on legal pluralism in different regions of Indonesia.⁸ There, the rules of customary law that grant villagers exclusive rights to use the land immediately adjacent to the village ceased to apply during the Dutch colonization in the second half of the XIX century, but in the late 1990s, after the death of President Sukarto and the beginning of democratic transformations in the country, the villagers began to appeal to these norms in the context of economic struggle with large agro-industrial companies that used former rural lands. The conflict, in which one of the parties justified its claims by "old" legal norms, in many cases found a formal solution within the framework of modern legislation-through obtaining shares of rural residents in companies whose right to land they disputed.

A number of studies have shown that the norms of legal systems other than state legislation can be used by parties to political conflicts as a tool to strengthen their own influence and limit the influence of rivals.-

^8. Benda-Beckmann, von F. "Who Is Afraid of Legal Pluralism?".

A. Salim9 ^shows that the struggle for state recognition of the expanded powers of Sharia courts in the Indonesian province of Aceh, which began in the 1990s and generally ended with the success of sharia advocates, was waged by political forces interested in the maximum autonomy of this province. Thus, the legal system operating in a certain territory becomes a guarantee of the political status of the territory, which is sought by adherents of this legal system.

2. Competition of legal norms in the North Caucasus: a research review

In this section, we will briefly present the main results of existing research on the phenomenon of legal pluralism in the North Caucasus republics. In general, these studies convincingly show that today in the North Caucasus, more precisely, in its north-eastern part (in Dagestan, Ingushetia and Chechnya), some types of conflicts can be resolved using the norms of legal systems that historically existed there in the XIX century and earlier - the norms of Islamic law (Sharia) and the norms of traditional law., or customary law (adat). The operation of the norms of these systems in the modern North Caucasus is not fixed in any way by any legal acts binding on citizens and is possible only with the voluntary consent of participants in the rather small spheres of socio-economic life in which these norms are used today.

Most studies of legal pluralism in the North Caucasus consider it from a historical and ethnographic point of view10. Priority is given to the fora process-

^9. Salim, A. (2009) Dynamic Legal Pluralism in Indonesia: the Shift in Plural Legal Orders of Contemporary Aceh. Max Plank Institute for social anthropology. Working paper 110.

^10. See, for example, M. S. Albogachieva. Osobennosti vzaimodeystviya rossiiskoi sudebno-pravovoi sistemy i traditsionnykh pravovykh institutov ingushskogo obshchestva [Features of interaction between the Russian judicial and legal system and traditional legal institutions of the Ingush society]. St. Petersburg: Petersburg Oriental Studies. 2012. pp. 142-208; Bobrovnikov V. O. Legal pluralism of the Dagestani adat//Custom and Law in written monuments of Dagestan V-early XX centuries Vol. II / comp. by V. O. Bobrovnikov, Moscow: Marjani Publishing House, 2009; Severny Kavkaz v sostave Rossiiskoi Imperii / ed. Bobrovnikova V. O., Babicha I. L. Moscow: Novoe literaturnoe obozrenie, 2007; Pavlova O. S. Ingush ethnos at the present time

It is necessary to identify the socio-cultural environment in which elements of different legal systems co-exist or have previously co-existed. Whole regions ¹¹ and individual rural communities ¹² can be investigated.

Within the framework of this approach, researchers primarily ask themselves what historical reasons led to the coexistence of different legal systems in the societies they study. As applied to the North Caucasus, there are three major stages in the formation of legal pluralism:

1. The emergence of the so-called military-people's administration after the Russian conquest in the second half of the XIX century. The core idea of the military-people's administration was a strict division of the spheres of action of different jurisdictions: some aspects of the life of the population of the conquered territories were regulated by the legal systems that were in force before the approval of the Russian government (Sharia and ordinary law - adat), and some - by Russian legislation. According to M. L. Babich and V. O. Bobrovnikov13, ^the most viable system of military and public administration was in Dagestan, where it existed until 1917, and the most ephemeral-in the Western Caucasus. The specific boundaries of the "spheres of operation" of different legal systems may have changed from one territory to another. For example, in Dagestan, cases of minor criminal offenses, as well as land and economic disputes were considered under adat. Civil lawsuits were considered under Sharia law, including-

Moscow: Forum Publ., 2012; Karpov Yu. Y., Kapustina E. L. Gortsy posle gor [Highlanders after Mountains]. St. Petersburg: Peterburgskoe vostokovedenie Publ., 2011.

^{Pavlova O. S.} 11. Ingush ethnos at the present stage (features of the socio-psychological portrait); Shtyrkov S. A. Progressive folk traditions: acquisition and invention (the case of the North Ossetian SSR in the 1960s) //Obshchestvo kak obekt i subjekt vlasti: ocherki po politicheskoi antropologii Kavkaza [Society as an object and subject of Power: essays on the political anthropology of the Caucasus]. St. Petersburg: Peterburgskoe vostokovedenie, 2012, pp. 209-246.

^{Kapustina E. L.} 12. Vybory v sel'skom Dagestane: politicheskoe evoystvie kak element sotsial'noi zhizni [Elections in rural Dagestan: a political event as an element of social life]. Saint Petersburg: Peterburgskoe vostokovedenie, 2012. p. 32-60; Sokolov D. V. Konkurentsiya sotsial'no-ekonomicheskikh ukladov: dzhamaat protiv kolkhoza [Competition of socio-economic structures: jamaat against the collective farm].

^13. The North Caucasus as part of the Russian Empire.

This includes conflicts between family members, divorce proceedings, disputes over wills and mosque property (waqfs). All these cases were considered by the village verbal courts, and as an appeal instance - by the district people's courts. At the same time, the Russian state was the guarantor of compliance with the decisions of these courts.

². The formation of a new system of legal pluralism after the establishment of Soviet power in the North Caucasus in 192014. This stage was characterized by the initial expansion of the scope of Sharia justice with the support of the Soviet state (in the People's Commissariat of Justice of Dagestan in 1922-1927 there was a special department that provided the work of Sharia courts - sharotdel, and the courts themselves were In the second half of the 1920s, however, the state launched a systematic offensive against "alternative justice", accompanied by reprisals against reputable Islamic religious figures. From the descriptions of the legal practice of Dagestan during this period, it follows that in the first years of Soviet power, as well as during the period of military-popular administration, legal pluralism in the region was weak in the sense that the operation of different legal systems was provided by the state. In particular, as V. O. Bobrovnikov15 points out, bailiffs at Dagestan rural verbal courts have been granted the status of rural policemen since 1925. At the same time, both for the military-people's administration and for the first Soviet years, the question remains open as to whether the state was the "architect" of the existing system of legal pluralism, or whether it only integrated legal relations into its system, the effectiveness of which could have been ensured even without the participation of the state.

^14. See M. S. Albogachieva. Osobennosti vzaimodeystviya rossiiskoi sudebno-pravovoi sistemy i traditsionnykh pravovykh institutov ingushskogo obshchestva [Features of interaction between the Russian judicial and legal system and traditional legal institutions of the Ingush society]. / comp. by V. O. Bobrovnikova, Moscow: Marjani Publishing House, 2009, p. 2639; Sulaev I. H. Gosudarstvo i moslemskoe dukhovenstvo v Dagestan: istoriya vzaimosheniyakh (1917-1991). Makhachkala, 2009, pp. 35-84.

^{Bobrovnikov V. O.} 15. Legal pluralism of the Dagestani adat.

3. "Renaissance" of legal pluralism after the collapse of the USSR. The literature describes in sufficient detail the revival of Sharia justice on a regional scale, through republican Sharia courts in Ingushetia and Chechnya. ¹⁶ In Dagestan, this process is better studied at the level of individual villages, which is probably due to the great fragmentation of Dagestan Islam and the lack of a single center of Muslim justice there. One of the important conclusions supported, in particular, in the works of V. O. Bobrovnikov [¹⁷] is that in the first post-Soviet years in the villages of Dagestan there was not so much a renewal of previously existing traditions, but rather the "invention" of new traditions based on a certain symbiosis of norms formed in the collective farm era and Sharia norms in this form This is how the residents of Dagestan, which had been separated from the centers of Islamic jurisprudence for decades before, imagined them at that time. This process was observed mainly in those areas of economic relations that in the first years after the collapse of the USSR remained in Dagestan virtually without state regulation, in particular, in the field of land relations in rural areas.

In ethnographic studies on the current state of legal pluralism in the North Caucasus, much attention is paid to the areas in which the norms of legal systems that are alternative to the state ones operate today. Thus, Albogachieva ¹⁸ considers the operation of Sharia and customary law in the situation of blood feuds in Ingushetia. It shows that the relationship between the family of the murderer and the family of his victim in today's Ingushetia partly follows the norms of Sharia, and partly - customary law (adat). For example, the researcher cites cases when, after refusing to reconcile relatives of the deceased as a result of a traffic accident, the case was transferred to the Sharia court working under the regional Spiritual Administration of Muslims,

-G. 16. Osobennosti vzaimodeystviya rossiiskoi sudebno-pravovoi sistemy i traditsionnykh pravovykh institutov ingushskogo obshchestva [Features of interaction between the Russian judicial and legal system and traditional legal institutions of the Ingush society], pp. 163-165.

^17. Bobrovnikov V. O. Legal pluralism of the Dagestani adat.

^{Albogachieva M. S.-G.} 18. Features of interaction between the Russian judicial and legal system and traditional legal institutions of Ingush society.

which did not indicate the illegality of a blood feud against the culprit of manslaughter. At the same time, the very customs of reconciliation of "bloodlines" can be based on the norms of adat, including, as Albogachieva notes, preserved from pagan times. Other areas where researchers note the impact of religious or customary law in the modern North Caucasus include the family sphere (primarily conflicts between spouses), land relations (conflicts between rural communities or members of one rural community over the boundaries of land they use), and relations between entrepreneurs.

Ethnographic works also show that in the modern North Caucasus, it most often makes sense to speak not about the operation of some alternative jurisdiction in full, but about the operation of individual elements of Sharia or adat in specific situations. For example, E. L. Kapustina demonstrates that the norms of customary law obliging an individual to follow the orders of senior people from his own family are quite strictly observed in a number of Dagestan villages during local elections: "It is obvious that an individual who is formally endowed by the Constitution with the right to independently decide for whom to vote, in this case stumbles upon some limitation. The decision of the jamaat sometimes becomes higher than the individual's personal will. " ¹⁹ As the author shows, such phenomena are explained precisely by the action of an informal norm, according to which a person is obliged to correlate his electoral behavior with the position of older relatives, and not by the indifference of ordinary fellow villagers to the election results. At the same time, there is no evidence that the entire system of adat norms that once operated there is observed in such villages - rather, we are talking about the "point" application of these norms as a way to mobilize the electorate. That is, the thesis of a number of researchers (see section 1) that legal pluralism can mean the coexistence in one society not of entire legal systems, but of their individual elements, in this case is confirmed by the Dagestani material.

The mentioned ethnographic studies also describe in sufficient detail the" infrastructure " of dispute resolution based on the norms of religious law in the modern North Caucasus.

^{Kapustina E. L.} 19. Elections in rural Dagestan: a political event as an element of social life. p. 51.

Its key elements are mosques, whose imams practice considering appeals of believers who want to resolve a conflict between them according to the norms of religion, as well as, in some regions, structures under the Spiritual Administrations of Muslims that provide assistance in resolving conflicts.

However, there are two significant issues concerning the operation of informal legal norms in the modern North Caucasus, which are not discussed much in ethnographic studies. First, it is a question of what supports the operation of informal legal norms. Certain observations concerning the maintenance of customary law norms are contained in the research of E. L. Kapustina, ²⁰ who notes that the effectiveness of such norms in a particular rural community can be supported by such practices as the actual exclusion of a villager from the community, which primarily has symbolic and reputational consequences (refusal of fellow villagers and relatives to attend celebrations in the family of T.At the same time, the functioning of such practices requires the presence of a sufficiently "strong" community in the village, with developed internal relations, which in reality is not observed in all villages of Dagestan today. The question of what supports the operation of norms based on religious law, as well as the mechanisms for maintaining the operation of any informal legal norms in the urban environment of the North Caucasus, has not received separate consideration in the ethnographic literature. We will discuss this issue separately in section 4 below.

Secondly, ethnographic research rarely raises the question of alternatives to conflict resolution based on informal legal norms, that is, what these methods of conflict resolution actually compete with in today's North Caucasian society. The claims that such an alternative is the state legislation of the Russian Federation do not raise questions, only if we abstract from the current realities of the North Caucasus. If, however, we take into account these realities, the question does not look so clear.

As for the question of alternatives to dispute resolution based on religious norms, it is discussed using the concepts of institutional theory in the work of E. A. Varshave-

^20. Ibid., pp. 51-52.

ra and E. Kruglova ²¹, where it is shown that in today's Dagestan, in many cases, a real alternative to the order based on religious norms is the situation of the so-called "coalition clinch".

3. The "Coalition Clinch" and the norms of religious law in the urban environment of Makhachkala

In the work of E. A. Varshaver and E. Kruglova, the question of the social order that developed in Dagestan in the 1990s-2000s and against which the phenomenon of legal pluralism, considered in this article, developed, is considered. The collapse of the Soviet system in Dagestan was characterized not only by a significant general weakening of state institutions, but also by mass migration to cities, which contributed to the "transfer" of many rural social practices to the urban environment, primarily mechanisms for mutual support of people from the same rural community. However, full-fledged "copying" of rural institutional norms in the city proved difficult, which, against the background of the post-Soviet weakening of state institutions, led to an institutional vacuum. It formed a system of relations based on competing informal groups, the importance of which is determined primarily by the presence in their composition of people who, by their position, are able to influence the resolution of certain conflicts. The basis of such influence can be a position in any state structure, personal proximity to high-level officials, the presence of a criminal power resource, etc. When a sufficiently large number of such groups were formed in society, a kind of dynamic balance began to arise between them, in which none of them can achieve a decisive advantage over the other. by others. This order of equilibrium between informal groups is called the "coalition clinch" order in this article. This order arises when state institutions are weak, becoming an alternative to them as a guarantor of a certain stability in society.

^{Varshaver E., Kruglova E.} 21. "Coalition Clinch" against the Islamic Order: Dynamics of the Market of Dispute Resolution Institutions in Dagestan. 2015. N 3. pp. 89-112.

However, this procedure is associated with high risks and costs for the groups themselves. Risks are associated with the fact that the composition of groups and their strength are constantly changing. Therefore, even if a conflict is resolved through the recognition of one of the opposing groups of the advantage of the other, in the future it is always possible to "review" the decision, if the group that previously made a concession managed to gain additional resources of influence. Thus, any conflict risks not having a "stable" solution, any solution is relevant only for the current balance of forces between the opposing groups and can be changed in the future. Another risk is associated with a vague system of norms and sanctions for non-compliance. Norms do not have a basis in any generally accepted source in a given society (a text or at least an informally defined sum of cultural representations shared by the majority of society), and sanctions are determined by those groups that are currently most influential. This means that it is always possible to review the rules that a particular group is situationally guided by. As for the costs set in this order, they are primarily due to the constant lack of information about the capabilities of the opposing group. For example, when two groups compete for a court decision on any issue affecting their interests, neither group ever knows exactly which "resource" persons who can influence the court's decision can attract the opposing group. Moreover, groups do not have complete information about their own resources of influence, which are constantly changing depending on the capabilities of those who are close to this group. The costs of the coalition clinch order also include the need for constant contacts of group members with each other, the need to" mobilize "in support of any member of the group (a typical visual example of such" mobilization " is the rapid appearance of significant support groups for each participant at the accident sites in Dagestan cities). You can only count on being able to use your group's resource for your own benefit if you constantly confirm that you belong to this group.

As Varshaver and Kruglova show, in most of the specific cases of conflicts in Dagestan that were studied by field methods, in which the parties decided to turn to religion, there are no specific cases of conflict in Dagestan.-

According to some authorities, the actual alternative to using them was not to resolve the conflict under Russian law, but rather to proceed within the framework of the "coalition clinch"order. There are a number of significant contrasts between this order and the consideration of the conflict on the basis of Islamic norms. Thus, conflict resolution based on religious norms does not involve risks associated with the instability of existing norms, since it is based on norms established independently of the parties to the conflict.

Methodologically, the approach demonstrated by Varshaver and Kruglova is interesting in that the reasons for choosing religious norms as the basis for conflict resolution are analyzed on the basis of the actual alternatives available to its participants. The main focus of the study of the phenomenon of legal pluralism in the North Caucasus within the framework of this approach is placed on the social context in which the choice between different regulatory norms is made, and not on the ideological, political, etc.motives of such a choice.

It should be added that the opposition between the development of the conflict within the framework of the "coalition clinch" order and its resolution based on religious norms in some cases does not seem to be absolute. According to our fragmentary observations during field studies in Dagestan in 2014-2015, it can be assumed that in some cases, the parties justified their position in the conflict with Islamic norms (which could also serve as a hint of the possibility of using the power resource of illegal armed groups of a "jihadist" type on their side). The study of such cases, however, was understandably difficult. On the other hand, it should be noted that in the modern North Caucasus, when studying informal conflict settlement procedures and their borders, the question of what exactly is considered religious norms is not easy. In section 2, it was shown that the "revival" of Islamic norms in the post-Soviet period was in fact largely the "invention" of new orders, in reality based on the symbiosis of various legal systems. The question of the source and boundaries of religious norms informally involved in the resolution of a particular conflict in today's North Caucasus

requires separate consideration for each specific case. However, when analyzing the data from our field study, we followed a simpler principle of differentiation, according to which a norm that is designated as such by participants or mediators of a conflict is considered "religious". The primary role in our classification of ways to resolve conflicts will be played not by the specific content of the norm, but by the actors ' understanding of its source. Given the above-mentioned modern "mobility" of the content of any informal norms in the North Caucasus, this approach seems to be the most justified.

4. Niche operation of informal legal norms: security mechanisms and beneficiaries

Field studies conducted in Dagestan show that the reasons for citizens to turn to conflict resolution based on religious norms in this region in the post-Soviet period were not limited to those factors described in section 3. In addition to the risks that the "coalition clinch" order carries, there are other reasons in specific dispute situations, including: by virtue of which their participants can seek a solution to the situation "according to Islam". This section, based on the results of our field research conducted in Dagestan in 2014-2015, ²² examines possible reasons for resorting to religious legal norms in two different cases of conflict. The first case is conflicts in the market of secondary sales of passenger cars. The second case is disputes when dividing a business between partner entrepreneurs.

4.1. Informal legal norms in the secondary market of passenger cars

The secondary market of passenger cars in the eastern part of the North Caucasus, including Dagestan, is one of the most popular markets in Russia.-

^22.Kazenin K. I. Perspektivy institutsionnogo podkhoda k yavleniyu polyjuridizma (na primere Severnogo Kavkaza) [Prospects of an institutional approach to the phenomenon of polyjuridism (on the example of the North Caucasus)]. 2014. N 3.pp. 178-198; Kazenin K. I. Regulirovanie zemel'nykh otnosheniy v Dagestan: sotsial'no-ekonomicheskie korni "traditionalizatsii" [Regulation of land relations in Dagestan: socio-economic roots of "traditionalization"]. 2015. N3. pp. 113-133.

There are several important areas in which the role of religious regulation is quite noticeable. A series of interviews conducted by us in the cities of Makhachkala and Khasavyurt in 2015 with entrepreneurs related to this area of business, as well as ordinary residents who had experience buying or selling cars in the last two years before the interview, suggests that the effect of informal norms of religious law in this market is explained, at least,by two reasons.

First, in most cases, secondary car sales in Dagestan are carried out without re-registration of the car to the new owner (instead of re-registration, a general power of attorney is issued for it). Payment for the purchase is not officially recorded, and, accordingly, there are no documents that, in the event of any claims from the buyer to the seller after the transaction, could be used to consider these claims in a Russian court.

Second, sales of used cars in Dagestan often become part of a business scheme that is commonly referred to in these regions as "Islamic sales" (for more information, see below). The use of this scheme initially has a religious motivation (avoiding interest-bearing lending, which is prohibited in Islam), and therefore it is quite expected that in case of any conflicts in the implementation of this scheme, they are considered according to the norms of religious law.

The main conflicts that arise in the secondary car sales market and in some cases receive Islamic regulation can be divided into the following types::

* Some time after the car is sold (without registering the buyer's ownership), it is discovered that this car has a status that prevents the new owner from disposing of it. For example, this car was previously purchased on credit, which is not fully returned, or is being searched, etc. In such cases, market participants consider it generally accepted that the seller is responsible:

Entrepreneur, Khasavyurt: If you sold a car, it turned out to be problematic and the buyer came to you, you should pick up this car. This is not up for discussion. Documents are your responsibility, the car must be clean.

* The buyer did not make full payment for the car within the time period that he previously agreed with the seller.

Obviously, in the first case, the buyer is affected, and in the second - the seller. In both types of conflicts, according to respondents, the resolution is often carried out informally, without applying to the Russian judicial authorities. This is due to the fact that, without having the relevant documents (in the first case - a document confirming payment; in the second case - a contract for the sale in installments), the victim cannot justify his claim in a way that he could consider sufficient for the Russian court.

Instead of applying to the Russian court, victims choose from two possible alternatives: consideration of the conflict through an intermediary acting on the basis of religious norms, or direct contact with the other side of the conflict without any intermediaries. If the first option is chosen, then the parties, by mutual consent, turn to a person competent in the field of religious law who practices the consideration of such controversial issues. Often, such a mediator is an imam of a mosque, but this status is not mandatory for the mediator (dispute resolution practitioners who have the status of an expert in Islamic law, but are not imams of mosques, when attributing quotes below, we refer to "mediators"). The functions of the person considering the conflict are limited to the fact that he indicates to the disputing parties a way of their action that would correspond to Islamic norms. At the same time, he may not make references to specific religious norms, as in the example below. In all the cases we studied, participants in the conflict identified the way to resolve it as "Islamic" primarily by appealing to a religious authority. Mediators do not interfere in the relations of any of the parties with a third party (for example, the one from which the seller purchased a car for resale) when considering such conflicts. Note that this makes it even more difficult for the mediator to ensure the implementation of the decision made during the consideration of the conflict, since the feasibility of the decision may depend on a third party:

Imam of the mosque, Khasavyurt: A car was brought here from Moscow. All the documents were clean, after the man sold the car to a friend-

to a certain person, he [the new buyer] wrote a car for himself, issued the car in full, the car has been in his hands for a year and a half, he has paid in full. And suddenly they stop him at the post and take his car away from him. Why? Wanted list. He called (the one he bought from), they came here. I asked the man who had the car taken away: what do you have left of her?" He says: nothing but the keys. I say: return the keys to him [the last seller], and to that [the last buyer] I say: give him the money. He said: what about me? I say: go where you bought it from, figure it out there. He began to say: there is a firm, they did not cheat there. I say, it's between you and that firm. They left, he said: I'll hire a lawyer, with that firm, they did it there, not here.

In the described case, the last seller had the opportunity to immediately return the proceeds from the sale of the car to the last buyer, and the relationship of the last seller with the primary seller (a Moscow firm) did not affect the resolution of the conflict that the imam of the mosque was considering. However, regularly when considering such conflicts, it turns out that the seller does not have the opportunity to return the funds. In the cases we found, this happened when the car "went through the chain" through several sales in a short period of time. In such situations, mediators limited themselves to indicating what kind of "movement" of goods and funds should take place in order for the "problem" car to be returned to its original seller in this region, but they did not take on the task of somehow ensuring the implementation of this "movement".:

Mediator, Makhachkala: For example, we return cars along the chain. And then we say: this is how you pass the car and money, this does not concern us.

At the same time, according to interviews, residents who apply to Islamic mediators are fully aware that, unlike state judicial authorities, these mediators have neither the right nor the ability to ensure that their decisions are implemented by the parties.

Entrepreneur, Khasavyurt: If they do not return (the amount), there is no whip that can be forced... What should I do here? It may take years.

However, the ability of Islamic mediators to deal with conflicts in which the rights of the parties are not documented is not the only reason to turn to them when considering disputes related to car sales. Another motive for applying to mediators, judging by interviews with those who have had experience of such appeals, is that consent to the consideration of a dispute "according to Islam" implies that the parties refuse to use any other means of protecting their interests. For example, in some cases, the mediator points out to the parties the option of solving the problem by selling a part of the property of the party that cannot return the money. An essential feature of this procedure is that if the parties agree to it, the affected party, as expected by all parties to the dispute, will not demand more funds from the debtor than the mediator indicated, and within the time limits not provided for by the mediator's decision:

Imam of the mosque, Khasavyurt: But that is why Sharia law has its own order, that is, if he lives in a house in the city center, they buy him a house on the edge of the city, they say: We are selling this house for a million, we will buy you a house for 400 thousand rubles, you will live on the edge of the city. If a person doesn't have anything to take, leave that person until they have the opportunity. That is, they do not kill, do not offend, he earns - he is forced to pay extra from his family.

On the basis of such judgments, we can say that one of the motives for applying to Islamic mediators in the secondary car sales market is the desire to avoid resolving the issue within the framework of the "coalition clinch" procedure (see above), which threatens both sides with the unpredictability of the debt repayment procedure.

A brief review of the operation of religious legal norms in the secondary car market confirms that there are no means of forcing the use of these norms: in this niche, as in others, contacting Islamic mediators can only be a voluntary decision of the parties. More complex is the question of what ensures the implementation of decisions of Islamic mediators after they are made. Power supply in this case, of course, is also not available. However, apparently, we can say that the function of "interim measures" is in some sense assumed by the costs of non-compliance with the mediator's decision:

the withdrawal of the conflict from the religious path of settlement threatens its development in a forceful scenario, in which the gains and losses of the parties can be unpredictable. In addition, some interviewees pointed out the reputational losses that are inevitable for a person who refuses to comply with the mediator's decision. However, the question of such reputational losses in the urban environment is not entirely clear. A resident of a rural area of the North-East Caucasus, as noted in section 2, failure to comply with the mediator's decision may face real problems in relations with fellow villagers, up to the announcement of a "boycott" in the village. In the urban environment, where social ties between residents are expected to be weaker, the real effectiveness of such threats raises questions and requires further study, which, apparently, will have to take into account the variety of forms of social organization that exist in the cities of the North Caucasus, including the varying degree of development of ties between fellow villagers.²³

The influence of religious norms on the market of secondary car sales in Dagestan is not limited to the possibility of contacting Islamic mediators in the event of any conflict. As already mentioned, the so-called "Islamic sales" scheme is widespread in this market. Its essence is that an entrepreneur buys a car and then sells it in installments at a price that exceeds the market price that is valid for selling without installments (in the cases we identified, this excess was approximately 10-15%). Such an operation does not violate the Islamic prohibition on providing financial resources on an interest-bearing loan, but it allows the final buyer to purchase a car without having the funds to pay the entire cost of the car in a lump sum. This scheme can also be used for "hidden" lending without actually changing the owner of the car (therefore, it was not approved by all the religious entrepreneurs we interviewed who are related to secondary car sales):

Entrepreneur, Makhachkala: Islamic prohibitions were circumvented in this way. Here I am a developer who needs money. I'm buying

^{Starodubrovskaya I. V., Kazenin K. I.} 23. Severo-Kavkazskie goroda: territoriya kontrastov [North Caucasian cities: territory of contrasts]. 2014. N 6.

you have a car. You sell me a car that costs 350, for 400. I charge, but I need cash, not a car. I won't sell it for 350 either. I give it for 330, I give it for 320, and there were even cases when the same person who gave it to me bought it back. That is, this. But if you're trying to deceive Allah like that, it's pure usury. Take the money, but give it back in three months.

Here we are talking about two types of this scheme: (1) buying a car in installments and then selling it without installments at a lower price; (2) buying a car with its "return" sale to the seller at a lower price. Obviously, both types of this scheme do not directly involve the provision of financial resources on an interest-bearing loan, but they allow you to actually receive repayable funds.

A distinctive feature of "Islamic sales" of cars is that in transactions on such sales, there may be an institution of a guarantor, whose responsibility is recognized by Islamic mediators who deal with such conflicts. The guarantor is responsible for paying the full price of the car by the buyer when selling in installments. In all the specific situations described in the interview, the guarantors assumed financial obligations before applying to an Islamic mediator, for example::

Entrepreneur, G. Khasavyurt: I have a friend, such a close friend of mine, he had such moments, difficulties, it was the amount of 250 thousand that he had to give, today, to serious people. And he asked me, because I have a slightly different reputation in this environment, he asked me to take the car under my own responsibility, I took it from my friend, another. More precisely, I did not take it, I was a witness, a guarantor, but my friend took it, from another friend of mine. This friend who took the car, he was supposed to give this person 350 thousand rubles in three months. All the documents, everything he gives, I'm the guarantor, he doesn't know him, he knows me. No contracts at all. This person who sells the car, the owner, he must come at any time to reissue this car. Although they do without it.

My brother wants a car. This person [after buying a car in installments was] looking for a buyer, and again he calls me. He calls me in the evening, and says-look, I can't do this

find a buyer for this car, help me sell it. Okay, but how much do you want? He: I'll give it away for at least 200. A decent price was about 280. I call my brother and say: listen, did you want a car? Wanted. There is such a car. How much can you do? Well, I have 250. I say, okay, I'll add 30 thousand, from myself, then somehow you're with me, I'm here to help this, I say, there is a client. He arrives immediately, then joyfully leaves, gives his 250 thousand.

Three months later, this person disappeared (who bought in installments). And now he's supposed to be 350. What's happening? I already know that he will not come, he has a series of problems there, loans here, there, he just ran away from such problems. This person (who sold him the car) is already talking to me. We have no written agreements, there is nothing, there was not even a person who was a witness at that time. That without a witness, it's a thing when we know each other and I can't say it didn't happen. He comes to me: listen, how are we going to solve the problem? Well, I have to give you the money. I gave him 350 thousand rubles. And to this day, like this.

As can be seen from this story, the failure of the guarantor to perform his duties is considered as involving serious reputational risks, which in this case can also be considered a factor that indirectly ensures the effect of informal regulation of market relations.

4.2. Informal legal norms in the situation of business division between partners

In the course of the field study, we interviewed entrepreneurs who had experience in the division of business, previously conducted jointly with a partner, in various sectors of the economy, mainly in the field of trade. All the appeals to Islamic mediators on issues related to the business division reflected in our interviews took place in a situation when the partners did not define or at least did not document their rights and mutual obligations at the start of a joint business:

Mediator, Makhachkala: The main problem, 90-95% of cases, is that people are on friendly terms, without details, start talking to each other.-

some business, while everything is going well, they do not look, and when they already begin to bear losses, expenses, it turns out that one thought that it should be like this, the other-that it should be like this, and on the basis of this, some disagreements arise, respectively, they remember what there are misunderstandings have been around for a long time, and emotions are already coming.

In the conflicts described in the interview, the most common situation is a disagreement between business partners about the status of one of them before the division of the business. For example, a product manufacturer believes that an entrepreneur who is constantly engaged in the sale of its products receives a certain percentage of the profit for his service and does not have any rights to the manufacturer's assets or brand in the case of a business division; the "sales agent" himself believes otherwise:

Mediator, Makhachkala: The problem there was that one person thought he was a co-owner of the business, while the other did not consider him a co-owner. The man had a jewelry store. He made jewelry, sold it. The second one just decided to expand his business to Moscow. There he was engaged in sales, and returned the profit received in order to receive more material. The person who brought it in for sale believed that he did not have the right to separate the business now. The relationship was not specified in any way, only that he had points in Moscow where he could sell products, and that the profit from Moscow sales would be divided in half. The decision was such that he, indeed, was not a co-owner of the business. (So it turned out) from what they both said. To be a co-owner of a business, it must be separately stipulated in advance that certain obligations are imposed on it (as a co-owner). The fact that they agreed to share the profits from the Moscow sale, he believed that he was a representative of this Moscow business and that he owned this half. From the fact that he received half of the profit there. I advised them to just find a compromise solution. They had a dispute not about capital, but about the brand, that these points know this brand. And now this person alienates him and delivers him to these points himself. I did not take the decision, but advised them to come to an agreement among themselves. Well, this workshop owner offered to financially compensate him for his exit from the business, and he agreed.

As this fragment of the interview shows, the mediator did not propose a specific scheme for "getting out" of this conflict, but only pointed out the need to reach a compromise. One of the reasons for this behavior of the mediator may be that, as the mediators themselves admit, not all practices of business relationships in Dagestan correspond exactly to the" typical " conflicts, the ways of resolving which are worked out in Islamic law (it is also possible that some mediators are not sufficiently trained to resolve conflicts related to business). The complexity of resolving business division disputes on the basis of Islamic law is also the reason that the number of mediators dealing with such disputes seems to be significantly lower than the number of mediators dealing with other types of disputes. Some respondents also stressed that a mediator should have not only a general religious education to resolve such disputes, but also the special training necessary for dealing with business disputes on Islam, which can be obtained in a very limited number of universities in the Arab East.

In the cases we studied, the subject of the dispute at the termination of a joint business concerned either the division of tangible property (real estate, tools, etc.), or the right to use certain brands (for example, the right of a sales agent who sold products under a certain brand to continue using the same brand after the termination of business relations with the manufacturing partner with your business). We did not find any cases when an Islamic mediator considered the issue of sharing financial resources when partners terminated a joint business. As can be assumed, the reason is that the distribution of financial flows when conducting joint business in these areas is usually quite clearly stipulated between partners (for example, it is established that the partner involved in sales receives a certain percentage of the proceeds, and the rest of them goes to the manufacturing partner). Disputes are related to those issues that were not agreed upon before the decision to terminate the joint business.

A separate type of the described disputes that fall under consideration by Islamic mediators is disputes in the case of divorce of spouses who conducted a joint business. Here, along with re-

religious norms regulating entrepreneurship also apply to religious norms concerning the division of any property during divorce: it takes into account what property each of the spouses had before living together, and the rest of the property, if the spouses conduct a joint business, is divided in proportion to the contribution to it. The division of property of spouses who were also business partners is considered by Islamic mediators to be one of the most complex issues, requiring, in the event of a conflict between the parties, establishing numerous facts with the help of witnesses:

Imam of the mosque (Khasavyurt): A dispute about the division of business is very common. For example, they are supposed to come here on Friday, a husband and wife, they lived together, and now they are not doing well. And they come, they say: here's what we had, here's what we have today. We want to get a divorce properly, and what do we need: me what, him what? I ask him what you had. And he began to say: behold, there was a car, there was a house. Then she says: yes, that was it, then he invested, I invested, he worked, I worked. But they started to say some things, facts-no, it wasn't like that. I told them: in this case, you need to bring here witnesses, people who know this case as it was and as it is.

In general, as can be seen, in the case of conflicts over the division of a joint business, one of the factors that determine the appeal to an Islamic mediator is the weak "formalization" of relations between the parties to the conflict. At the same time, the role of the mediator in this case is also limited to indicating the "exit path", without ensuring that the parties to the conflict will actually follow this path.

5. Conclusions

In this article, we have considered approaches to the phenomenon of parallel operation of the norms of Islamic law and the norms of other legal systems within the same society. As an empirical illustration, we used legal pluralism in the North Caucasus, with a particular focus on Dagestan. In this region, the use of Islamic legal norms is very limited and obviously optional for residents: cases of their use in the settlement process have been identified

There were only a few types of conflicts, and in all cases the decision to treat the conflict "according to Islam" could only be made at the mutual desire of the parties.

However, even such a" reduced "use of religious norms in the context of legal pluralism, as studies show, cannot be considered only as a kind of" tribute to tradition " or a manifestation of the personal religiosity of members of society. Even the" point-to-point " application of religious legal norms can be seen as having practical reasons, such as the difficulty of using the norms of other legal systems in some specific types of conflicts. In addition, the appeal to the norms of religious law can be explained by the ratio of benefits and costs of various available methods of resolving disputes. In any case, if the results of the studies discussed here are correct, then the appeal of individuals to religious legal norms is conscious and based on a comparison of different possible regulatory alternatives.

This conclusion, of course, cannot be automatically extended to other situations of legal pluralism with Islamic law as one of the competing regulatory systems. However, he argues in favor of such approaches to the study of the role of religion in conflict resolution, which explain it not only by the level of religiosity in society, but also by "instrumental" considerations of the greater or lesser effectiveness of certain social practices.

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