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Religion et politique dans le Caucase post-soviétique

 | 
Bayram Balcı
, 
Raoul Motika

6. ‘Adat against Shari’a: Russian Approaches towards Daghestani “Customary Law” in the 19th Century

Michael Kemper

Texte intégral

I would like to thank Vladimir Bobrovnikov for valuable comments on issues raised in this article.

  • 1 For Kabylia, see the collection of A. HANOTEAU and A. LETOURNEUX, La Kabylie et les coutumes kabyle (...)

1It is common knowledge that in the 19th century many European colonial empires acknowledged or even supported the official use of local ‘adat (“customary law”) in their colonies. This was mostly done out of necessity, for it was believed that a direct interference with the local tradition of administering justice would have provoked hostility from the local population and thus constitute a danger for the colonial rule. The replacement of customary law (which was often regarded as “barbaric”) by (“civilized”) imperial law was thus postponed to a future time when the colonial people would have attained “maturity”. In the meantime, however, the colonial administration tried to gain access to the local customary law by inquiring into its rules and methods and by controlling its institutions. The local administrators and officers “collected” the rules of customary law from the local populations and assembled them into large corpuses. Most of these collections were written not in the native, but in the colonial languages. In several cases, the process of collecting ‘adat aimed at an overall codification of the regional varieties of customary law1. The official collection and codification generally served two purposes: first, to facilitate the control of the local courts’ activities, and second, to progressively alter certain rules and procedures of customary law which were perceived as contradicting universal moral or legal standards, or central interests of the colonial power. Thus the local populations were supposed to be smoothly led on the way to civilisational progress.

  • 2 For Central Asia, see for example A.A. NIKISHENKOV (ed.), Stepnoi zakon. Obychnoe pravo kazakhov, k (...)
  • 3 Vladimir BOBROVNIKOV, Musul’mane severnogo Kavkaza. Obychai, pravo, nasilie (Moscow, 2002); Austin (...)

2This also holds true for Russia’s management of its imperial borderlands, the Caucasus and Central Asia2. In these regions, however, the official support of the use of ‘adat had another background, for customary law was conceived as a bulwark against shari’a (Islamic law). Shari’a had been promoted by the North Caucasian Islamic resistance against Russian rule. In order to unite the Muslim communities of the North Caucasus, the Islamic leaders tried to enforce the sole use of Islamic law, and declared all customary law to be non-Islamic or even heresy. In this situation, the Russian administration began to regard Islamic law per se – regardless of its actual content – as a danger to Russian rule in the North Caucasus. As Vladimir Bobrovnikov and Austin Jersild have recently shown, the Russian imperial discourse on the usefulness and potentials of ‘adat law, but also on its disadvantages in comparison to imperial State law, continued until the very end of the Empire.3 Needless to say, the debate on the Caucasian Muslims’ “backwardness” and Russia’s “civilisation” in legal affairs was the backbone of the general Orientalist discourse and played a major role in the image that the Russians had of themselves. To codify Muslims’ “primitive” customary law was, among other things, a way to point out their lower cultural status.

3The Russian policy to strengthen customary law made it necessary to gather information on the current ‘adat provisions in the remote areas of the Caucasus, and this was not an easy task. This article studies the results of two huge collecting campaigns undertaken in the 1840’s and 1860’s in the North Caucasus, with special reference to the mountain regions of Daghestan. However, it has to be noted that the results were predetermined by the ideological approaches of the campaigns, and that the methods were adapted during the process. According to the various ways of requesting, selecting, and arranging the material, the campaigns produced different types of customary law collections. At the end of the 19th century, it became obvious that customary law could be manipulated only to a certain degree, and that all efforts of codification had failed. This was also corroborated by the leading contemporary Russian historian of Caucasian customary law, Maksim M. Kovalevskii. On the basis of the ‘adat material collected in the previous campaigns, Kovalevskii came to the conclusion that it had been a mistake to support customary law to the detriment of Islamic law; in his mind, Islamic law was in many regards “more civilised” than thr North Caucasian customary law, and more suitable to draw the Caucasian people nearer to “civilisation”. By these conclusions, Kovalevskii questioned the fundamentals of European colonial policy not only in the Northern Caucasus, but also in many other colonized countries.

First Collections and Codifications in the 1840’s

  • 4 F.I. LEONTOVICH (ed.), Adaty kavkazskikh gortsev. Materialy po obychnomu pravu severnago i vostochn (...)

4Russia’s final advance into the North Caucasus began in the late 18th century when local rulers (princes and Khans) were taken into Russian service and their territories were step-by-step incorporated into the Empire. In the beginning, the government hoped to implant Russian law onto the traditional legal systems of the Caucasians. In 1793, General Gudovich opened special courts for Kabardinian clans (Central North Caucasus), and declared that all criminal acts such as murder, robbery and theft would henceforth be judged according to Russian law. However, the Kabardinians opposed Russian interference in their law, and the old courts had to be reopened the next year. Similar failures were encountered in other regions like Daghestan.4

  • 5 Cf. Nikolai I. POKROVSKII, Kavkazskie voiny i imamat Shamilia (Moscow, 2000); Moshe GAMMER, Muslim (...)
  • 6 Michael KEMPER, “The Daghestani Legal Discourse on the Imamate”, in: Central Asian Survey, vol. 21, (...)
  • 7 Michael KEMPER, Herrschaft, Recht und Islam in Daghestan. Von den Khanaten und Gemeindebiinden zum (...)

5The attempt to introduce Russian law codes in the North Caucasus was most of all hampered by the long Caucasian War, which practically covered the whole first half of the 19th century until the early 1860’s. In Daghestan and Chechnya, Russia’s military advance provoked the fierce resistance of Muslim communities which declared jihad (“the fight or endeavour on the path of God”). This jihad movement originated in the mountain village communities; it aimed at moral purification and at the construction of an ideal Islamic society. In the beginning the jihad was directed against the local Muslim Khans, princes and notables who refused to administer law according to the shari’a but kept to their ‘adat, but soon the movement also turned against the Russians who supported the local nobility. Under the leadership of three subsequent Imams Ghazi-Muhammad (circa 1829-32), Hamzat Bek (1832-34) and the famous Shamil (1834-1859), a jihad movement developed which lasted for roughly thirty years and led to the establishment of an Islamic state in the Daghestani mountains and in Chechnya.5 Themselves students of Islamic law, the Imams Ghazi-Muhammad and Shamil legitimized their ruling by the shari’a, and their rhetoric was full of Islamic symbols. Shamil at times even laid claim to the title of amir al-muslimin (synonymous to “Caliph”), and he had his chief mufti produce a treatise which defended his political, military and administrative measures in the light of the classical authors of the Shafi’ i school of law.6 The Imams were furthermore backed by influential Daghestani shaykhs of the Naqshbandiyya khalidiyya Sufi brotherhood; for this reason, the whole Caucasian Islamic resistance became known as “muridism” (after the term murid, which means “adherent of a Sufi shaykh”) – quite misleadingly, for Sufism was by far not as central to the motivation of the jihad as was the call for the implementation of Islamic law. It is still open to question how far the Islamic law was really implemented in the imamate; the rhetoric of jihad, however, was deeply rooted in the classical Islamic discourse. In Ghazi-Muhammad’s and Shamil’s writings, the local ‘adat are depicted as non-Islamic, heretical and satanic.7

  • 8 See BIBIKOV’s report of February 1, 1841 to the Commander of the Caucasian Line, General Golovin, a (...)

6In view of this formidable Islamic challenge, the Russians became more and more interested in local ‘adat, which the Tsarist administration perceived as a useful tool against the shari’a of the Imams. Yet the authorities deplored that they had only superficial knowledge of customary law, as well as of Islamic law, and practically lacked any control over the local jurisdiction. The problem was first tackled in 1841 by Lieutenant-Commander D.S. Bibikov, who at that time chaired the Chancellery for the Administration of the Pacified Mountain People (Kantselariia po upravleniiu mirnymi gortsami), attached to the Commander-in-Chief of the Caucasian Line). Bibikov suggested a project to systematically collect information on both systems of indigenous law which co-existed in the mountaineer societies.8

  • 9 LEONTOVICH, Adaty, vol. I, p. 92.
  • 10 This work is a later abridgement of Wiqayat al-riwaya attributed to the Central Asian author Ubayda (...)
  • 11 See [N. TORNAU and A. KAZEMBEK], “Zapiska’Ob ustroistve sudebnogo byta musul’-man’ (1863-1864?). Pu (...)

7As to the shari’a, Bibikov proposed to identify the most important Arabic books on Islamic law that were in use in the Caucasus and to translate them into Russian. This would give the authorities a much-needed instrument to check the influence of the mullahs who were suspected of “interpreting the shari’a prescriptions arbitrarily”. As the Caucasian administration lacked the necessary skill for this project, it was suggested to entrust the Oriental Department of Kazan University with this task.9 In fact, it seems that in the following decade at least two Russian specialists produced valuable works on Islamic law. The first of these is the famous Hanafi law book Mukhtasar alwiqaya (Kazan, 1845)10, edited and provided with an introduction by Mirza Aleksandr Kazembek, professor for Oriental languages in Kazan. The second book is a Russian manual of Islamic (especially Shafi´ i) law for practical use in the administration of the South Caucasus (Izlozhenie nachal musul’manskogo zakonovedeniia, St. Petersburg, 1850). It was written by Nikolai Tornau, Vice-Governor of the Kaspiiskaia oblast’ (which included parts of the South Caucasus and parts of Daghestan) between 1841 and 1845. These books made clear that Islamic law was intrinsically different from customary law: it was a written law, in a way even “codified” (common to all schools of law, although with certain variations within each school) and thus controllable by the government if the latter decided to provide Islamic law with a legal basis and an institutional frame in the Russian empire.11

  • 12 “Programma po koei prednaznachaetsia sobrat’ skol’ko vozmozhno vernyia, tochnyia i podrobnyia svede (...)

8As to the customary law, Bibikov’s plan was to collect as much information as possible from all people of the North Caucasus, and then bring all these data together in a general volume which was probably designed as a court manual for the whole of the North Caucasus. This part of Bibikov’s ambitious program was indeed carried out. His short model questionnaire was forwarded to the Russian generals in the different North Caucasian territories, who were in charge of organizing the necessary fieldwork in their respective regions. The questionnaire consisted of only twelve general points. Three of them inquired after the social system of the local people (social classes and estates, prerogatives and rights of each estate, and their interrelations). Related to this complex investigation was the question how cases of disobedience towards the local nobility were punished. As to customary law itself, the questionnaire asked what the “general ceremony of ‘adat juridiction” was like, and which cases were regulated by ‘adat in the given society. Other points investigated into specific legal aspects: the relationship between husband and wife and between parents and children, as well as regulations for heritage, including one point on “spiritual testaments”. Only the very last question asked for a description of “all kinds of crimes and their punishments”.12

  • 13 In fact, the “testament” in question is the Islamic nadhr, which was much-debated in 19th century D (...)

9Bibikov’s questionnaire had major shortcomings. It was written from the perspective of the Tsarist Empire, which was built on feudal relations, and expecting to find similar structures in all of Russian colonies. This shortfall became apparent from the first questions on the people’s social hierarchy and the rights of the local nobility, as many Caucasian regions had no powerful nobility and where village communities organized themselves independently of the local princes. The North Caucasian clan organisation, as well as the structure of the Daghestani village communities and their confederacies, was totally left out. This orientation of the collection also reflects the fact that the actual work was to be carried out mainly by officers of the Russian army coming from the Caucasian Muslim nobility. Furthermore, the questionnaire at times confused customary law with Islamic law; thus the special question on “spiritual testaments” does not belong to ‘adat, but to shari’a, and accordingly all answers obtained on this question relate to regulations of Islamic law.13 However, the most striking flaw of the questionnaire was its conspicuous unbalance, for some of the twelve questions were mere repetitions of others, while the last question tackles almost ninety percent of all legal aspects regulated by ‘adat in Daghestani society. The fact that several questions aimed at basic ethnographical information and did not refer to the legal system reveals the Russian’s general lack of knowledge on the North Caucasian people.

  • 14 All these materials were combined in a manuscript volume which was later published in parts by LEON (...)

10However, the program had the merit of initiating the first large-scale investigation into North Caucasian customary law. In result, four “collections” were submitted to the commander-in-chief of the North Caucasus in the following years. They described the customary law of the Chechens and Kumyks (1843), the Balkarians and Digorians (1844), the mountaineers of the Vladikavkaz district (1844) and of the Circassians of the Black Sea Line (mainly Ossetians and Chechens, 1845).14

  • 15 “Adaty Kumykov”, in: LEONTOVICH, Adaty, vol. I, pp. 185-206.
  • 16 Ibid., pp. 185-195. In his historical account, Freitag presupposes a distinct “people” of several t (...)
  • 17 Ibid., p. 202-206.
  • 18 Ibid., p. 196.

11Obviously due to the ongoing jihad in the Daghestani mountains, the only Daghestani people considered in this series were the Kumyks of the lowlands between the Terek and Sulak rivers.15 General-Major Freitag, under whose direction the corresponding work was achieved, laid special emphasis on the class system of the Kumyks and its historical genesis. Accordingly, almost two thirds of his collection (83 of 128 “items” or paragraphs) concern “the origin of the noblemen, the division of the Kumyk people in classes and their relations to one another”.16 What emerged is mainly a historical and ethnographical account of the region. The following section on ‘adat gives only a very general outline of the functioning of customary law and provides few detailed information on what was specific to the Kumyk ‘adat, and what might distinguish their ‘adat from the customary law of other North Caucasian people. Only in 1849, and on special request, Freitag provided two additional sets of information, especially on the amount of the kalym (trousseau; qalïm in Kumyk) and on punishments and fines for murder, injuries, and other violations.17 Obviously, Freitag was of the opinion that it was a fruitless work to collect detailed information on legal customs, for “the Kumyks always used to have the law of the more powerful”.18 Of course, such an observation – be it true or not – was meant to legitimize the advent of Russian law and order to the region.

  • 19 [Ol’shevskii], “Svod adatov gortsev sevemogo Kavkaza (Chemomorskoi linii, Kubanskoi i Terskoi oblas (...)
  • 20 Ibid., p. 261
  • 21 Ibid., p. 256.
  • 22 Ibid., p. 258.
  • 23 Ibid., p. 254.

12In 1847, the generalized summary of all four above-mentioned ‘adat collections was completed by Captain Ol’shevskii.19 This Svod (‘Collection’) summarized the main features of customary law, like ‘adat courts and informal arbitration, blood-revenge, blood-money and compensation payments (which Ol’shevskii, however, failed to distinguish from fines [called fidya in Arabic texts from the North Caucasus] paid to the local authority or community). The Svod also enlisted the different amounts of money or payment in kind to be taken from an offender among each of the people under scrutiny (except for the Kumyks, for Freitag’s corresponding data came too late to be incorporated). However, only a small part of Ol’shevskii’s text dealt with the description of ‘adat law; instead, it contained all kinds of historical and ethnographical information on the different people, with a large amount of detailed examples. Sometimes a special feature or custom was explained by material from the Chechens or Ossetians, sometimes by cases from the Kabardinians or Kumyks. What emerged is a very colourful general view on Caucasian morals, a psychologising narrative about the character and mentality of the people. For instance, Ol’shevskii indiscriminately stated that “robbery is the main profession of the Caucasian mountaineers”,20 and that the mountaineer lived in “uneducated and half-wild societies”,21 where “law has no power”.22 Large sections dealt with the relations between the sexes, which Ol’shevskii summarized in the statement that “the mountaineer’s wife is his slave”.23 In conclusion, neither the individual texts of the 1840’s nor Ol’shevskii’s Svod provided precise texts of customary law suitable for practical use by Russian officials or as manuals in court. Bibikov’s program turned out to be too general and too vague, and the personnel – officers of the Russian army as well as representatives of the local nobilities – did not possess the required training for this tremendous task.

Local “Crime Catalogues” of the 1860’s

  • 24 See, for instance, “Nizam Shamilia”, in: Sbornik svedenii o kavkazskikh gortsakh III (Tiflis 1870); (...)

13After the defeat of Shamil in 1859, the Russian government was confronted with extreme forms of particularism in Daghestan. Inhabited by more than two dozens of people and ethnic groups with their own languages and cultures, the country had been split up into several feudal principalities and a great number of more or less independent village communities and confederacies, all of which had distinct legal practices. It was Shamil who, at least for a certain time, had imposed a central government on parts of Daghestan and Chechnya. He had turned some confederacies into districts (Ar. sg. nahiya, naibstvo in Russian) led by his military governors (na’ibs), which were responsible only to him. Under Shamil’s rule, shari’a superseded at least several prescriptions of ‘adat; furthermore, Shamil had issued his own decrees (nizam) on military, administrative and legal matters.24 Taking into account all these changes, as well as the fact that many specialists of ‘adat law had been killed during the Caucasian War, it became obvious that the legal situation was in extreme flux and difficult to survey for the Russian authorities.

  • 25 LEONTOVICH, Adaty, vol. I, pp. 32-37, 47-48. As an exemption from the dual system, all cases touchi (...)

14In 1860, Daghestan was declared an oblast’ (“territory”) of the Russian empire. The former political entities – mainly the numerous small village confederations of various size and the Khanates, most of which had already suffered a great deal of transformation under Shamil – were gradually dissolved, and the individual regions were bound together in nine districts (okrugs). As for the jurisdiction, Russia introduced a dual system: on the one hand, colonial courts were established for the non-Daghestani population (that is, primarily Russians), as well as for all suits involving Russians and non-Russians (Daghestanis). On the other hand, the “local population” (tuzemtsy) was to retain its ‘adat courts in the villages, which were manned by the village Elder (Russ, starshina, Arab. ra’is), the qadi and a number of judges to be elected by the community. These village courts were responsible for minor civil law suits of not more than 100 Roubles in dispute. Crimes were delegated to the District Court headed by the Chief of the district, where Daghestani deputies from the villages together with Russian administrators would be in charge. Finally, a “People’s Court” (Dagestanskii Narodnyi Sud) was introduced as the court of appeal for the whole indigenous population. Its members were appointed by the highest Russian militaries in Daghestan.25 As to the village communities, new regulations clearly defined the duties of the Elder (who had formerly been elected for two or three years by the village community but was now appointed for lifetime by the District Chief) and of the village assembly (skhod/jama’a, comprising the Elder and qadis as well as representatives of the clans of the community), which restricted their political autonomy.

  • 26 Proekt polozheniia o sel’skikh obshchestvakh, ikh obshchestvennom upravlenii i povinnostiakh gosuda (...)

15Officially, customary law was maintained for the indigenous population at all court levels and the use of Islamic law was restricted to matters of marriage, divorce and inheritance. However, the above-mentioned integration of Islamic qadis in the local courts already makes it clear that Islamic law continued to play a major role in juridical affairs among Daghestani Muslims; we may assume that in the absence of any codes of regulations, it was hard to draw a line between shari’a and ‘adat in juridical practice (a draft legislation on the administrative and legal practice at community and district level was only published as late as 1898).26

  • 27 See [N. TORNAU and A. KAZEMBEK], “Zapiska”, pp. 122-126.
  • 28 Cf. Allan CHRISTELOW, Muslim Law Courts and the French Colonial State in Algeria (Princeton, 1985).

16In this situation, specialists on Islamic law like Tornau and Kazembek proposed to create a net of state-run Islamic courts in the Caucasus which would provide Muslims with the possibility to officially solve all kinds of legal suits according to Islamic law, not just marriage, divorce and inheritance affairs; this system would include the official establishment of shari’a courts at local or regional levels as well as a central institution (called “Ijlas”) in Tiflis which would consist of a Shafi´ i mujtahid and two Sunni Muftis (one Shafi’i and one Hanafi). Tornau and Kazembek also continued to try to convince the government of the necessity to publish more Islamic law books for use in the administration.27 Their ideas were influenced by the French experience with the creation of a centralized qadi bureaucracy in Algeria.28 Yet these projects were not realized, for Aleksandr Bariatinskii, Shamil’s subduer and the Tsar’s viceroy of the Caucasus from 1856 to 1862, wanted to build the local court system on the basis of customary law alone. This meant that if the Russians wanted to check what was going on in the village courts, they had to resume the study and collection of local customary law. This time the officials acknowledged the enormous amount of contradicting local traditions. Therefore the Russian ‘adat collections of the 1860’s did not attempt at generalization and overall codification, as Bibikov’s program had done two decades earlier, but laid emphasis on the peculiarities of each region.

  • 29 “Sbornik adatov, sushchestvuiushchikh v Gunibskom okruge srednego Dagestana”. The text belonged to (...)
  • 30 In general, a first sum is handed over to the victim’s kin as early as possible. This money that is (...)
  • 31 “Sbornik adatov, sushchestvuiushchikh v Gunibskom okruge”, p. 164 (villages of Koroda and Gonoda).
  • 32 Ibid., p. 169 (Arakani, Kodukh, and Irganai).
  • 33 Ibid., p. 168 (Salty); p. 167 (Darada, Murada, Tunzy, and Khartikuni); p. 171 (Kikuni and Gergebil’ (...)
  • 34 Ibid., p. 166 (Miatli).
  • 35 Ibid., p. 170 (Mogokh, Urkachi, Shagada, Butsra, Gotso, and Tuliatlita).

17For practical reasons, the first task was to find out how the most common crimes and violations were treated in the various villages of the Daghestani districts. These efforts led to the compilation of what one may call “crime catalogues”. A typical example is the collection of ‘adat from the Gunib district of Central Daghestan.29 This district comprised four sub-districts (naibstvos, “deputyships”) with over thirty Avar villages. The Russian collection of their ‘adat enlisted the legal consequences of murder, bodily harm, the threat of violence, adultery and theft, in consecutive paragraphs. Thus, paragraphs 1 to 5 deal with murder, bodily harm and other items in the villages of Koroda and Gonoda, paragraphs 6 to 10 with the same crimes in two other villages, and so forth. It is striking how divergent the rulings for these simple cases were. According to the ‘adat, in some localities of the Gunib district a murderer had to pay 100 Roubles as blood-money (alïm and diya)30 to the victim’s kin, plus a fine of 20 Roubles to the village community31, while in others he had to give 40 and 36 Roubles, respectively32, or two, three, or four bulls33; in other cases, no blood-money is mentioned at all.34 And while it was a ubiquitous rule that the murderer had to leave his home community immediately, in several localities the victim’s kin was also allowed to pillage and demolish his house, gardens and fields. In some villages the murderer’s family also had to go into exile.35 However, as all this information was based on oral sources, it can be assumed that many of these divergences simply resulted from the fact that the questions were not standardized.

  • 36 “Sobranie adatov selenii Avarskogo okruga”, in: Omarov, Iz istorii prava, pp. 25-48.
  • 37 The text was produced one year after the formal liquidation of the Avar Khanate of Khunzakh in 1864 (...)

18A similar case was represented in a Russian collection of ‘adat from the Avar district (Avarskii okrug), written down in 1865.36 It reflected regulations of some 42 villages on and around the high plateau of Khunzakh, the former residence of the Avar Khan.37 Again, the material mostly dealt with selected topics like murder, rape and theft, which are presented in a rather non-standardised form. Remarkably, in a few instances the text also gives provisions on the communal self-administration in this region, such as the rights and duties of village functionaries, the misuse of communal property and the mechanisms of peace-keeping between the clans of a village. In these particular cases, the Russian text resembles indigenous Arabic ‘adat texts from Avaria, which may have served as a model.

  • 38 “Adaty Andiiskogo okruga Zapadnogo Dagestana”, in: KHASHAEV, Pamiatniki, 120-176. The anonymous wor (...)
  • 39 The text contains sections on the ’adat of the “former” naibstvo of Tindy, the community of Khvarsh (...)

19“Catalogues of crimes” were also produced for other districts of the Daghestani mountains. One of the most systematical and elaborate Russian collections deals with the ‘adat of the Andi district of Western Daghestan.38 This comparatively huge and heterogeneous district to both sides of the Andi Koisu river was inhabited by at least eight distinct Daghestani people, and was divided into several naibstvos, which had been created by Shamil; before his time, these regions constituted independent village confederacies.39 The text contains the ‘adat of seven of these naibstvos. In each of these local compilations the focus was laid on the treatment of murder, bodily harm, adultery, rape, betrothing and theft, the damage of property or pastures, arson and on the herdsmen’s responsibility for the loss of animals. Obviously, these cases constituted the most common and important violations. In comparison to the collection from the Gunib district, the cases are discussed in much more details. The provisions for murder or bodily harm, for instance, also discuss age, sex, and intent of the committer and of the victim, as well as the exact dimensions of the wounds and how they can be measured, the payment of the doctor (even the latter’s claim to warm clothing and boots, if he came from another village) and so forth. Much room was given to peculiarities of the cleansing oath (tahlif in Arabic texts) for each legal case. The text was highly standardized and based on a common questionnaire. It seems to constitute a fairly useful source if one wants to compare how certain violations were treated in different regions of Western Daghestan.

20Remarkably, the text also reveals how traditional ‘adat had already been subject to changes. For instance, the Russian ‘adat text of the Andi district strengthened the role of a formal “court” (Russian, sud) of each village. In pre-colonial Daghestan, formal courts played a minor role in Daghestani legal practice; rather, the victim or his kinship carried out retaliation without proceeding judgments. In cases of murder, for instance, the heirs of the victim were entitled to kill the murderer whenever they got hold of him. If they did not insist on retaliation, the family of the murderer could offer blood-money, which was regulated by ‘adat. Only after both sides came to an agreement the culprit was able to return to his native village and obtain pardon from the victim’s kin. This proceeding was based on the self-help of the victim’s party and on arrangements taken by both families, and even if some village notables supervised the agreement ceremony, this procedure did not need any formal judge.

  • 40 This is the ’adat of Unkratl’-Chamalal’ (“Adaty Andiiskogo okruga”, p. 153).
  • 41 “Adaty Andiiskogo okruga”, p. 162.
  • 42 The ’adat of the naibstvo of Andi prescribe that half of the sum is to be given to the victim’s kin (...)
  • 43 Ibid., pp. 135, 145, 162, 169. The only self-help killing which obviously could not yet be suppress (...)

21The Russian government, however, had a vested interest in restricting blood-revenge for several reasons. First, any self-help use of violence challenged the state’s monopoly on violence. Secondly, Daghestani blood feuds produced lots of fugitives (abreks in Russian usage) who posed serious problems by indulging in highway robbery. Therefore the administration required that any cases of murder be put under the authority of an official court. This is also reflected in the ‘adat of the Andi district. In the provisions of most naibstvos (sub-districts), the payment of blood-money (which is equivalent to renunciation of blood-revenge) was described as the natural consequence of all murder cases, without mentioning the right to killing in retaliation. The text of one naibstvo went even further and explicitly prohibited the killing of the blood-enemy.40 In contrast to all pre-Russian ‘adat texts in the Arabic language, the Andi ‘adat did not require the exile of the murderer; he could simply stay in his house until peace was established between the families.41 Seemingly, it was the judges of Andi who guaranteed his life, for their verdict also regulated the delivery of the blood-money.42 And last but not least, while according to all traditional ‘adat texts of Daghestan a house owner was entitled to kill a thief whom he caught in the very act, almost all of the naibstvo-’adat emphasized that such a killing was to be treated as equivalent to murder.43

  • 44 A. RUNOVSKII, “Kodeks Shamilia”, in: Voennyi sbornik (1862), No. 2, pp. 327-386, here: pp. 338-339 (...)
  • 45 “Adaty Andiiskogo okruga”, p. 140 (Tekhnutsal’ naibstvo).
  • 46 Ibid., p. 120 (Tindy naibstvo). According to the ’adat of the community of Khvarshi in the Tindal’ (...)

22The most striking change, however, is that according to the Russian text, certain violations were punished by arrest in the gauptvakht (the German word Hauptwacht, “main guard-house”) of the village of Botlikh, the administrative centre of the Andi district. Alien to traditional Daghestani ‘adat, imprisonment as a kind of punishment was introduced first by Imam Shamil in his jihad state.44 Thus here again, the Russians continued Shamil’s practice. The Russian ‘adat text of Andi mentions imprisonment for cases of rape, which had formerly required exile.45 In other parts of the Andi district, if exile was inevitable to protect the culprit’s life (e.g. in cases of adultery), the latter would be sent to “Siberia” – a term which often stood for Russian exile in general, regardless of whether the actual place of exile was Northern Russia or Siberia.46

  • 47 Ibid., p. 129 (according to the ’adat of Khvarshi, which also restrict the amount of kalym to 5 Rou (...)

23In some instances the Russian collections explicitly note where they digress from traditional custom, thus showing that they reflect something else than just the traditional, pre-colonial state of affairs. This concerns above all the custom of betrothal (svatovstvo in Russian). In traditional Daghestani society, if a bridegroom obtained the agreement of a girl’s guardian on the marriage, he had to give certain presents to the guardian, which would later constitute the kalym (trousseau) of the bride. If, however, the girl or her guardian did not keep their word and the marriage did not realize, they had to return the presents and pay a certain sum of money to the suitor. If it was the bridegroom who abandoned the plan, the girl would be allowed to keep the presents. Legal suits on these presents must have been most frequent; they already figured prominently in the ‘adat collections of the 1840’s. These presents could be very expensive and young men had to work hard to earn the money for them. For this reason times of betrothal could last many months and even years. In order to deal with this problem, most of the ‘adat texts from the Andi district declared that “from the day of the fixation of these ‘adat, betrothal is altogether abandoned” in their respective communities.47

24Each of the texts which have been discussed so far is a mere compilation of ‘adat rules from different localities of a certain district. We may call this an additive representation; it was chosen for practical use at district courts, for it showed how important legal cases had to be treated in different naibstvos of the district. These sub-districts had once constituted more or less independent communities or village confederacies; just as these units were now put together to form the new colonial administrative unit of “district” (okrug), the Russian collections of district ‘adat were nothing but an addition of the individual naibstvos’ ‘adat. However, this additive fashion of representation was highly repetitive, for it reiterates the whole list of crimes for each sub-district, notwithstanding the fact that several individual rulings were valid not only in one, but in several naibstvos.

  • 48 The Dargi compilation “Adaty darginskikh obshchestv” was first published in an abridged version in (...)

25An alternative to the additive representation of ‘adat in the Russian collections can be labelled an integrative approach; for units standing at different political level, this integrative approach was used to depict ‘adat law in a vertical relation. This was possible in the Dargo district (Darginskii okrug), which had formerly constituted a “union of confederacies”. Consisting of seven confederacies, the Union of Dargo was presided by one of them, the confederacy of the village of Akusha. Nevertheless, the member confederacies were not only independent in their internal affairs, but also in much of their relations to outside parties. The anonymous author of the Russian compilation of the Dargi ‘adat chose to compare all individual ‘adatsets of the seven confederacies in order to find out which provisions were common in all of them. These he separated as the “common ‘adat” of the whole Union, and juxtaposed them to ‘adat specific to only one of the seven member units. The “special” paragraphs of the member units were meant to supplement the “general” provisions of the Union, to which they were linked by cross-connections in the text.48 This method makes plain the distinct features of each unit, and it allows to assess the possible variations which were tolerated within the overall Union.

  • 49 Further extensive texts of this integrative kind were the “Adaty Gunibskogo okruga” from 1894 (publ (...)

26However, we do not know whether the Union of Akusha-Dargo actually possessed such a common corpus of ‘adat, be it written or oral. Therefore the systematical construction of a “common” ‘adat corpus of the whole Union seems to be artificial. This criticism notwithstanding, the portrayal of the ‘adat of Akusha-Dargo and its member confederacies is a very valuable description. In addition to the most common law cases, it also presents many details on social relations and economic regulations in the respective communities, provides information on the communal functionaries and explains the indigenous legal terminology. Another merit of this text is its conscious separation of those matters that were regulated according to Islamic law.49

  • 50 For the structure and contents of these Arabic ’adat documents see Vladimir O. Bobrovnikov, “Ittifa (...)
  • 51 The two texts are published within a compilation of eleven Russian ’adat texts from different local (...)
  • 52 Komarov, “Sbornik adatov shamkhal’stva Tarkovskogo i khanstva Mekhtulinskogo”, in: Kh.-M. Khashaev (...)

27Yet Russian officials still barely realized that Daghestani communities themselves laid down their ‘adat laws in documents of communal agreements, and that these Arabic texts may have been useful for a systematic description of customary law50. To judge from the published sources, only in two instances imperial Russian officers translated Arabic sources in order to obtain practical knowledge: these are the ‘adat of the confederacies (subdistricts) of Dido and Ukhnadal’ from Bezhta district in mountainous Daghestan. In contrast to pure “crime catalogues”, these two Russian texts deal with the whole complexity of village organisation, and they also reveal the structure of a traditional ‘adat text which has “grown” over a certain period of time.51 Only in one case a Russian high-ranking military and hobby ethnographer, General Aleksandr V. Komarov (1823-1901), produced a systematic and comprehensive ‘adat law book on the basis of an Arabic ‘adat sketch, the material of which he presented in a new arrangement according to European legal concepts. However, Komarov’s “Collection of ‘Adat from the Principality of the Shamkhal and the Khanate of Mekhtula” is also a mixture of legal and ethnographical information, without reference to the communities and their procedures of law finding, and it does not seem to have made its way into court houses.52

Adat as Living Fossils: Maksim M. Kovalevskii (1880’s)

  • 53 Maksim M. Kovalevskii, Obschinnoe zemlevladenie, prichiny, khod i posledstviia ego razlozheniia (Mo (...)
  • 54 Kovalevskii’s Caucasian studies on kinship structures and customary law thus seem to belong to a se (...)

28The fruits of all previous Russian efforts to collect North Caucasian customary law were first harvested by Maksim M. Kovalevskii (1851-1916). After he had written his first major Russian works on “Communal Landed Property” (1879) and on the “Historical-Comparative Method in Jurisprudence” (1880),53 Kovalevskii turned to the North Caucasus where he carried out some fieldwork on the connection between kinship structures and customary law.54 Especially the Ossetian, but also the Daghestani material allowed him to corroborate his theories on the historical development of law.

  • 55 On Kovalevskii see M.O. Kosven, “M.M. Kovalevskii kak etnograf-kavkazoved”, in: Sovetskaia etnograf (...)
  • 56 Uwe Wesel, Geschichte des Rechts. Von den Frühformen bis zum Vertrag von Maastricht (Munich 1997), (...)
  • 57 Maksim M. Kovalevskii, Sovremennyi obychai i drevnii zakon (Moscow 1886); Maxime Kovalewsky, Coutum (...)

29Kovalevskii was an ardent adherent to the evolutionarist theory in legal history and anthropology.55 One of the most influential works in this field was Ancient Law (1861) of Henry Summer Maine, who is mostly regarded as the father of legal anthropology. Maine was convinced that the most primitive form of society was the patriarchal family. He argued that the most ancient form of law was the one set by a patriarch or a king; this form developed into customary law, and customary law gave rise to the great codifications of law in the classical antiquity.56 This theory is reflected in Kovalevskii’s work Sovremennyi obychai i drevnii zakon (“Contemporary Custom and Ancient Law”), published in 1886 and later translated into French.57 In this book Kovalevskii investigated the customary law of the Ossetians in a comparative perspective. As the Ossetians are counted among the Aryans, Kovalevskii was convinced that they had preserved an old state of law which had once been common to all Aryan people. He compared their contemporary legal institutions with law monuments of the German, Irish and other European and Oriental people of the Middle Ages. The outcome is a firework of cross-cultural references, achieved by an eclectic selection of examples, and based on the still limited historical evidence of his days.

  • 58 Maksim M. Kovalevskii, Zakon i obychai na Kavkaze (Moscow 1890), vol. II, p. 140, with reference to (...)

30While this approach is clearly linked to a racial concept, in other works Kovalevskii made clear that similarities between the legal systems of different people or “tribes” do not necessarily reflect a common “philological” origin (filologicheskoe srodstvo), but occur when people live under similar conditions. “By passing through common states of development, the ethnicities (narodnosti) work out similar legal norms independently of each other”.58

  • 59 Maksim M. Kovalevskii, Zakon i obychai na Kavkaze, 2 vols. (Moscow 1890).
  • 60 Kovalevskii, Zakon, vol. I, pp. 83-290.
  • 61 Ibid., vol. II, p. 141.

31This idea is central to a later work of Kovalevskii, Zakon i obychai na Kavkaze (“Law and Custom in the Caucasus”, 1890), in which he turned to other, non-Aryan people of the North Caucasus.59 Its first volume is an historical overview of law development in the North Caucasus in general with special reference to the impact of foreign law systems, especially those of the Iranians, Byzantinians, Armenians and Georgians, and invaders like the Khazars and Huns, Arabs, Tatars and Mongols, and last not least the Russians.60 The second volume of Zakon i obychai deals with the mountaineers of Mingrelia and Georgia (part I) and with those of Daghestan (part II). According to Kovalevskii, although Ossetians, Kabardinians, Chechens, Svanets and Daghestanis differ in their races, languages and religions, they are all characterized by a common kinship organisation (rodovaia organizatsiia); for this reason, the customary law of all mountaineers’ forms “something whole and unified”.61

  • 62 Kovalevskii made use of the ’adat collections in the Russian language that had already been publish (...)
  • 63 Ibid., vol. II, pp. 127-304.

32Kovalevskii’s work on Daghestani customary law in part two of Zakon i obychai is a serious and valuable analysis of the development and functioning of ‘adat. Based on the Russian ‘adat compilations of the 1840’s and 1860’s as well as on his own observations,62 Kovalevskii analyzed the relationship between ‘adat and shari’a, the kinship structure of Daghestan and many aspects of family law, law of inheritance, criminal law and capital crimes.63 His basic idea was to distinguish between legal provisions of old origin and others that had been introduced in later times by external influences and certain historical events. This distinction is based on two arguments.

  • 64 Ibid., vol. II, pp. 140-141.
  • 65 Ibid., vol. II, p. 133. Kovalevskii underlines that also the elders of lineages are often elected b (...)
  • 66 Ibid., vol. II, p. 158.
  • 67 Ibid., vol. II, p. 133. Also ’adat provisions prohibiting the emigration of community members and t (...)
  • 68 Ibid., vol. II, pp. 158-159.

33First, he assumed an ongoing process of dissolution of kinship organisation in Daghestan for the benefit of communal organisation. Accordingly, those ‘adat provisions which display kinship interests should be referred to as an “older layer”, while provisions displaying communal interests are more recent. Among the older regulations he counted features such as unrestricted blood-revenge, the system of co-jurors before court (that is, the rule that a suspect had to produce a certain number of relatives who swore that the accused did not commit the deed in question), and the exclusion of women from heritage.64 Furthermore, Kovalevskii presupposed that in former times, kinship groups had been economic units (imushchestvennye soiuzy), and that settlements originally consisted of one kinship group only.65 However, in his time no Daghestani village was inhabited by merely one clan or lineage (tukhum). According to Kovalevskii, when several clans joined to constitute a village, the new community developed its administrative structure according to the model of kinship organisation, with elected elders and assemblies.66 In this respect, Kovalevskii regarded the village organisation as the “heir” of kinship organisation.67 In the course of time neighbourhood relations superseded blood relations; thus the right to pasture or to cut wood was no more determined by affiliation to the individual clans, but by membership of the overall village community.68

  • 69 Ibid., vol. II, p. 256.
  • 70 Ibid., vol. II, p. 237.

34Kovalevskii’s second yardstick for a chronology of ‘adat development was his assumption of an increasing interference of Islamic law. He observed that some domains of Daghestani legal practice such as marriage, divorce and inheritance were almost totally regulated by shari’a. Furthermore, Islamic elements and notions had also penetrated and changed many legal institutions of customary origin. For instance, several collections of ‘adat ignore the notion of murder being committed without intent or by carelessness, and prescribe the same consequences (retaliation or blood-money, combined with fines and donations) for any case of killing, be it deliberate or not. Similarly, attempted violations and incitement to crime are often not reckoned as punishable acts, for only actual damage was taken into account, and had to be compensated for without regard to the wrongdoer’s motivation.69 In Kovalevskii’s mind, these were the most ancient rules. In other regions, however, ‘adat provisions distinguish between deliberate murder and manslaughter or killing by accident, and display a graduation in blood-money and fine. Kovalevskii regards these qualifications as shari’a interferences, for Islamic law distinguishes between killings with or without intent (‘amd) and even acknowledges the category of quasi-deliberate intent (shibh al- ‘amd).70

  • 71 “Postanovleniia Kaitagskogo utsmiia Rustem-xana”, first published in SSKG vol. I (Tiflis 1868), the (...)
  • 72 Kovalevskii, Zakon, vol. II, p. 234. In fact, the text has to be interpreted not as a decreed law o (...)
  • 73 Kovalevskii, Zakon, vol. II, pp. 247-248.

35Unfortunately, it is hard to prove whether these qualifications had actually been borrowed from Islamic law or not. Kovalevskii knew only one ‘adat text predating the shari’a and jihad movement under the three Imams (1829-1859). This was the so-called “Codex Rustam Khan” from Kaitak, of which Kovalevskii had two Russian translations at his disposal.71 As Rustam Khan of Kaitak ruled in the first third of the 17th century, Kovalevskii believed it represented Daghestani customary law “in its purest form”.72 Yet Kovalevskii conceded that even Rustam Khan’s law already contained some deviations from the alleged “original” form of ‘adat law. In its provisions on murder, for instance, it claims that the heirs are entitled to perform blood-revenge only against the murderer himself, not against his relatives. Furthermore, the ‘adat of Rustam Khan also acknowledged the killing in self-defence as a lawful act. Both qualifications can also be found in Islamic law.73 Obviously, the ‘adat of Rustam Khan did not shed much light on the historical development of customary law and shari’a in Daghestan.

  • 74 For instance, he does not present any historical proof for his assertion that “the Avar Khans follo (...)

36By checking several Russian ‘adat collections of the 19th century in his search for possible Islamic interferences, Kovalevskii came to the conclusion that especially the Avar regions around the Khanate of Khunzakh, but also the Khanate of Kazikumukh and the Dargi regions had incorporated Islamic elements into their customary law. However, he made no efforts to corroborate his argument by investigating into the historical background of these Daghestani regions.74 He also gave no explanation why the shari’a should have been influential in some Khanates, but not in others, such as the reign of the Shamkhal of Tarki. Similarly, Kovalevskii detected a huge impact of Islamic law in some village confederations (as the aforementioned Dargin confederacy of Akusha, Central Daghestan), but not in others (e.g. the former confederacies of the Andi Koisu region in West Daghestan). It is obvious that Kovalevskii’s understanding of the historical development of ‘adat is based more on logical inductions than on factual evidence, and therefore should be regarded as ideal types, not as historical reality.

  • 75 Kovalevskii, Zakon, vol. II, p. 217.

37In view of the progressing decomposition of kinship organisation and the growing restrictions of the tukhum’s collective legal responsibility, Kovalevskii observed an overall development of customary law towards Islamic law, with its mitigating effects on blood-revenge and its concept of individual responsibility. In consequence, Kovalevskii suggests regarding shari’a not as opposed to customary law, but as its “latest step”.75 Disregarding all religious and political factors that may have had an impact on the change of the traditional law system, Kovalevskii never seemed to doubt the progressive and unidirectional development of law in history.

  • 76 Ibid., vol. II, pp. 237-240. The French translation he quotes from is Minhadj at-talibin. Le guide (...)

38All shortcomings notwithstanding, Kovalevskii’s work represents the first coherent interpretation of Daghestani customary law as a distinct legal system in relationship to Islamic law. By consulting a French translation of the work Minhaj al-talibin of the Syrian Shafi´i scholar al-Nawawi (d. 1278),76 Kovalevskii was also the first to compare provisions of Daghestani ‘adat with those of Islamic law. Even if most of his conclusions deserve to be checked, his work presents the most coherent and extensive theoretical analysis of North Caucasian ‘adat to date.

39Kovalevskii also touched upon the question of how the Russian state should handle Daghestani customary law. In his opinion the government should not hesitate to do away with customary law wherever it blocks the way of cultural progress:

  • 77 Kovalevskii, Zakon, vol. I, pp. 288-289.

By leading an open fight against the relics of ancient wildness and kinship-based lynchlaw (samosud), by persecuting the killing of new-born girls in Svanetia and the unlimited kinship-based blood-revenge in Daghestan, the Russian government fulfils the cultural tasks which history has conferred upon its shoulders much better than by bowing to customs which insult our moral sentiments, and which base on nothing but their old age.77

  • 78 On ishkil and baramta see now Vladimir Bobrovnikov, “Verbrechen und Brauchtum zwischen islamischem (...)
  • 79 Ibid., vol. I, p. 282; cf. 280.

40Kovalevskii stated that since the beginning of the Russian conquest of the North Caucasus, the Russian government had always tried to back local customary law against Islamic law. This was reasonable as long as Russia’s enemies, the Daghestanis and Chechens who united under Shamil, adhered to the shari’a. However, customary law had grave disadvantages, for its endless cases of blood-revenge and its arbitrary justice by self-help “paralyzed the work of the government”. In Kovalevskii’s view, it was time to acknowledge that the shari’a could soften the crudeness of customary law – by admitting women to heritage, by forbidding the practice of ishkil (self-help confiscation),78 and above all by smoothing the legal consequences of non-intentional killings. Therefore he came to the surprising conclusion that it would perfectly be in line with the Russian “enlightening mission” (prosvetitel’skaia missiia) in the Caucasus to allow the local courts to judge criminal cases according to the shari’a.79

  • 80 Ibid., vol. I, pp. 289-290.

41Kovalevskii defined his own task as to unveil the origins of law, and to show that customary law must not be treated as the people’s unalterable and sacrosanct opinion of the truth, but as the result of a long historical process, and as being subject to changes. A social renewal, he closed his argument, could only be effected by fighting obsolete and dangerous customs. For this reason Kovalevskii demanded “more freedom for the Russian administration and courts” in order to bring about social progress in Daghestan.80 In light of these statements, one may ask whether Kovalevskii’s concept of progress differed much from that of the colonial officers of the 1840s, who characterized the population of the Caucasus as “half wild” and presupposed that they were in need of benevolent European guidance. In fact, Kovalevskii clearly bolstered the Russian notion of mission civilisatrice by providing it with a scientific explanation.

Conclusion

42The ‘adat collections produced by Russian officers and ethnographers revealed the following characteristic features: (1) they often disregarded the differences between custom and law, and deviated into ethnographic and historical descriptions, (2) they reduced the complexity of ‘adat by focusing on some spheres of civil and criminal law only, (3) they made explicit what is only implicitly, if at all, mentioned in traditional (Arabic) ‘adat texts, where many issues were simply taken for granted, (4) they made efforts at systematisation and (5) codification of the law material, and (6) they tended to blur the border between customary law and other law systems. Furthermore, (7) the Russian ‘adat collections or did lack information on the methods used, as well as on informants or sources.

43We do not know which of the individual collections were actually used in the local ‘adat courts; this question could probably only be answered by a study of archival material. What can already be stated is that most of the materials were published as late as in the 1880’s or even in the 20th century, and not for administrative but for ethnographic purposes. The overall project of codifying Daghestani (or even North Caucasian) customary law for practical purposes must be regarded as a failure.

  • 81 Bobrovnikov, “İttifaq Agreements in Daghestan”.
  • 82 Kemper, “Communal Agreements”, p. 151.

44There is still another point worth mentioning. The Russian campaigns of the 1840’s and 1860’s were, as it seems, almost exclusively based on oral sources. Russian ethnographers largely neglected the fact that the Daghestani villages and confederations possessed their own ‘adat books in the Arabic language. This had serious consequences. Recent research has shown that the indigenous Daghestani ‘adat “booklets” (daftars in the Arabic language) (which have come down to us especially from the Avar region) were no mere “crime catalogues” and contained much more than just cases of murder, theft, and rape: rather, they also dealt with subjects like the liabilities of the community’s elders and policemen, the regulations concerning the common defence of the community against outsiders, the agricultural calendar and the community’s use of its resources.81 In one word, from these local documents Daghestani ‘adat emerged as the legal basis of communal self-organisation.82 Russian ‘adat collections, in contrast, concentrated on a rather limited range of “criminal” and “civil” cases and did not mention any of these communal affairs. This did not come as a surprise, for under Russian rule the communal autonomy was largely restricted, and political, economic and military affairs were decided not by the village community but by the Russian administration. Therefore Russian ‘adat texts were generally confined to the rather limited number of cases that were still dealt with in the local courts under Russian surveillance. By omitting the regulations on communal self-organisation, the Russian officers and ethnographers also disregarded the fact that ‘adat law was decided upon and enacted by the Daghestani community itself, that is, by the communal assembly and its elected elders. In other words, the Russian collections disregarded the fact that ‘adat was “communal law”, with the community as its origin and guarantor.

45By disconnecting ‘adat from the community, Russian ethnographers transformed the “communal law”, the law of the community, into “customary law”, that is, into a set of regulations that allegedly had their origin in an ancient past, not in the living community. It was this process of disconnection which ultimately subjugated Daghestani ‘adat law to the manipulation efforts of the colonial power. Instead of recognizing ‘adat as an expression of dynamic communal self-organisation, it was treated as raw material which could be fixed and re-modelled in “codices” or “crime catalogues” according to Russian necessities.

46All transformations notwithstanding, the colonial authorities believed that the maintenance of ‘adat law in the villages would be necessary in opposition to Islamic law, which in turn had been promoted by the great North Caucasian insurgencies under Shamil and other Imams. Interestingly, it was a renowned specialist on ‘adat law, the Russian ethnographer Kovalevskii, who understood that the shari’a offered even more possibilities for “civilising” interventions than the traditional ‘adat. His insights, like similar previous suggestions by leading Russian specialists in Islamic law like Tornau and Kazembek, have not been realized by the Russian government; yet they were remarkable in a time when Islam was still regarded as Russia’s main enemy in the North Caucasus.

Notes

1 For Kabylia, see the collection of A. HANOTEAU and A. LETOURNEUX, La Kabylie et les coutumes kabyles (Paris 1872-73 [reprint 1893]), 3 vols; for systematic accounts and collections of Indonesian ’adat, see C. VAN VOLLENHOVEN, Het adatrecht van Nederlandsch-Indië, vol. I (Leiden 1916-18, repr. 1925), and B. TER HAAR, Adat Law in Indonesia, transl, from the Dutch (New York, 1948).

2 For Central Asia, see for example A.A. NIKISHENKOV (ed.), Stepnoi zakon. Obychnoe pravo kazakhov, kirgizov i turkmen (Moscow 2000), 8-9; Virginia MARTIN, Law and Custom in the Steppe. The Kazakhs of the Middle Horde and Russian Colonialism in the Nineteenth Century (Richmond, Surrey, 2001), p. 58; Olga BRUSINA, „Die Transformation der Adat-Gerichte bei den Nomaden Turkestans in der zweiten Hälfte des 19. Jahrhunderts”, in Michael KEMPER, Maurus Reinkowski (eds.), Rechtspluralismus in der Islamischen Welt. Gewohnheitsrecht zwischen Staat und Gesellschaft (Berlin, 2005), 227-254.

3 Vladimir BOBROVNIKOV, Musul’mane severnogo Kavkaza. Obychai, pravo, nasilie (Moscow, 2002); Austin Jersild, Orientalism and Empire: North Caucasus Mountain People and the Georgian Frontier, 1845-1917 (Montreal, Kingston, London, Ithaca, 2002).

4 F.I. LEONTOVICH (ed.), Adaty kavkazskikh gortsev. Materialy po obychnomu pravu severnago i vostochnago Kavkaza, vol. 1 (Odessa, 1882), pp. 36-37; N.F. GRABOVSKII, “Ocherk suda i ugolovnykh prestuplenii v Kabardinskom okruge”, in: Sbornik svedenii o kavkazskikh gortsakh [SSKG], vol. IV (Tiflis, 1870); A.V. KOMAROV, “Adaty i sudoproizvodstvo po nim”, in: SSKG, vol. 1, (Tiflis, 1868), section 1. First attempts to introduce Russian laws in Daghestan (Kaitak and Tabasaran regions) took place in 1840, but had to be abandoned due to the discontent of the local population in 1848.

5 Cf. Nikolai I. POKROVSKII, Kavkazskie voiny i imamat Shamilia (Moscow, 2000); Moshe GAMMER, Muslim Resistance to the Tsar: Shamil and the Conquest of Chechnia and Daghestan (London, 1994).

6 Michael KEMPER, “The Daghestani Legal Discourse on the Imamate”, in: Central Asian Survey, vol. 21, no. 3 (2002), pp. 265-278.

7 Michael KEMPER, Herrschaft, Recht und Islam in Daghestan. Von den Khanaten und Gemeindebiinden zum ğihad-Staat (Wiesbaden, 2005), pp. 217-224.

8 See BIBIKOV’s report of February 1, 1841 to the Commander of the Caucasian Line, General Golovin, as published in LEONTOVTCH, Adaty, vol. 1, pp. 87-90.

9 LEONTOVICH, Adaty, vol. I, p. 92.

10 This work is a later abridgement of Wiqayat al-riwaya attributed to the Central Asian author Ubaydallah b. Mas’ud Sadr al-Shari’a (d. 1346), which in turn was a commentary on the Hidaya of ’Ali b. Abi Bakr al-Farghani al-Marghinani (d. 1197).

11 See [N. TORNAU and A. KAZEMBEK], “Zapiska’Ob ustroistve sudebnogo byta musul’-man’ (1863-1864?). Publikatsiia V.O. Bobrovnikova”, in: Sbornik russkogo istoricheskogo obshchestva No. 7 (155) (Moscow, 2003), pp. 108-140.

12 “Programma po koei prednaznachaetsia sobrat’ skol’ko vozmozhno vernyia, tochnyia i podrobnyia svedeniia ob adate, ili sude po obychaiam kavkazskikh gortsev”, in: LEONTOVICH, Adaty, vol. 1, 93-94. For a Marxist critique of Bibikov’s program, see Vladilen G. GADZHIEV, “Pamiatniki obychnogo prava Dagestana”, Izvestiia Severo-Kavkazskogo nauchnogo tsentra vyshei shkoly, Seriia obshchstvennykh nauk (Rostov-na-Donu, 1987), pp. 76-86.

13 In fact, the “testament” in question is the Islamic nadhr, which was much-debated in 19th century Daghestan; see “Polemika dagestanskikh uchenykh po voprosu ob otchuzhdeniiu sobstvennosti po nazru (obetu)”, in: SSKG, vol. v (Tiflis, 1871), section iv, pp. 1-40.

14 All these materials were combined in a manuscript volume which was later published in parts by LEONTOVICH, Adaty, vol. I and II.

15 “Adaty Kumykov”, in: LEONTOVICH, Adaty, vol. I, pp. 185-206.

16 Ibid., pp. 185-195. In his historical account, Freitag presupposes a distinct “people” of several tribes which had once been living in the Kumyk lands. This people were then conquered by “lateral children of the Shamkhal of Tarki”, who divided the land between themselves. Since then, Kumyk society falls into seven classes: Princes, three classes of freemen, two classes of chagar (dependant peasants), and slaves (p. 187).

17 Ibid., p. 202-206.

18 Ibid., p. 196.

19 [Ol’shevskii], “Svod adatov gortsev sevemogo Kavkaza (Chemomorskoi linii, Kubanskoi i Terskoi oblastei) ”, in: LEONTOVICH, Adaty, vol. II, pp. 231-268.

20 Ibid., p. 261

21 Ibid., p. 256.

22 Ibid., p. 258.

23 Ibid., p. 254.

24 See, for instance, “Nizam Shamilia”, in: Sbornik svedenii o kavkazskikh gortsakh III (Tiflis 1870); R.Sh. SHARAFUTDINOVA, “Eshche odin nizam Shamilia”, in: Pis’mennye pamiatniki Vostoka 1975 (Moscow 1982), 169-171. For a general discussion of the legal system under the Imams see KEMPER, Herrschaft, Recht und Islam, pp. 366-382.

25 LEONTOVICH, Adaty, vol. I, pp. 32-37, 47-48. As an exemption from the dual system, all cases touching upon the political security of the country, like high treason, highway robbery, and theft of treasury money, were delegated to military courts.

26 Proekt polozheniia o sel’skikh obshchestvakh, ikh obshchestvennom upravlenii i povinnostiakh gosudarstvennykh i obshchestvennykh v Dagestanskoi oblasti. Hadhihi qawa’id fi bayan jama’ at qura wilayat Daghistan wa fi tadbir umurihim wal-huquq al-wajiba ’ala ahali al-qura lil-fadishahiyya (Temir Khan-Shura 1898). Cf. BOBROVNIKOV, Musul’mane, p. 154-158.

27 See [N. TORNAU and A. KAZEMBEK], “Zapiska”, pp. 122-126.

28 Cf. Allan CHRISTELOW, Muslim Law Courts and the French Colonial State in Algeria (Princeton, 1985).

29 “Sbornik adatov, sushchestvuiushchikh v Gunibskom okruge srednego Dagestana”. The text belonged to a set of Daghestani collections of customary law from the 1860’s which LEONTOVICH had at his disposal, and which he intended to publish in a third volume of his monumental Adaty (cf. Ibid., p. 71). However, this third volume has never been printed. Later, the text was published by A.S. OMAROV in his Iz istoriiprava narodov Dagestana (materialy i dokumenty) (Makhachkala 1968), pp. 164-175.

30 In general, a first sum is handed over to the victim’s kin as early as possible. This money that is called alym (alïm in Turkic) was intended to cover the funeral expenses. If, at a later date, the victim’s relatives grant the murderer pardon and allow him to return to his village, a second sum is paid, which is the blood-money proper (diya in Arabic). However, the texts seldom differ between the two payments. Therefore in the following the term “blood-money” refers to the total of the two sums.

31 “Sbornik adatov, sushchestvuiushchikh v Gunibskom okruge”, p. 164 (villages of Koroda and Gonoda).

32 Ibid., p. 169 (Arakani, Kodukh, and Irganai).

33 Ibid., p. 168 (Salty); p. 167 (Darada, Murada, Tunzy, and Khartikuni); p. 171 (Kikuni and Gergebil’).

34 Ibid., p. 166 (Miatli).

35 Ibid., p. 170 (Mogokh, Urkachi, Shagada, Butsra, Gotso, and Tuliatlita).

36 “Sobranie adatov selenii Avarskogo okruga”, in: Omarov, Iz istorii prava, pp. 25-48.

37 The text was produced one year after the formal liquidation of the Avar Khanate of Khunzakh in 1864. Accordingly, the Khan is not mentioned at all, neither as mediator in legal suits, nor as a general authority. However, special reference is made to the village of Khunzakh which seems to have functioned as the main place (Hauptort) of all villages of the Avar Plateau.

38 “Adaty Andiiskogo okruga Zapadnogo Dagestana”, in: KHASHAEV, Pamiatniki, 120-176. The anonymous work was allegedly written in the 1860’s as a handbook for the okrug (district) court, but it is not known whether it was used as such.

39 The text contains sections on the ’adat of the “former” naibstvo of Tindy, the community of Khvarshi (which was situated within the naibstvo of Tindy), and the naibstvo of Karata (all on the right bank of the Andi Koisu), as well as the naibstvos of Unkratl’-Chamalal’, Tekhnutsal’, Andi, and Gumbet (on the left bank). In several cases, the text also refers to individual villages when their custom is at variety to the ’adat of the naibstvo. The inhabitants of these regions speak several distinct East Caucasian languages of the Avaro-Andi-Tsezian group.

40 This is the ’adat of Unkratl’-Chamalal’ (“Adaty Andiiskogo okruga”, p. 153).

41 “Adaty Andiiskogo okruga”, p. 162.

42 The ’adat of the naibstvo of Andi prescribe that half of the sum is to be given to the victim’s kin only “after the decision of the court”; Ibid., p. 162.

43 Ibid., pp. 135, 145, 162, 169. The only self-help killing which obviously could not yet be suppressed was the killing of the adulterers at the hand of the husband or a close relative of the woman.

44 A. RUNOVSKII, “Kodeks Shamilia”, in: Voennyi sbornik (1862), No. 2, pp. 327-386, here: pp. 338-339 (detention of thieves in “holes”).

45 “Adaty Andiiskogo okruga”, p. 140 (Tekhnutsal’ naibstvo).

46 Ibid., p. 120 (Tindy naibstvo). According to the ’adat of the community of Khvarshi in the Tindal’ naibstvo of Andi district, the court itself would lead the injured adulterer into safe exile (p. 126).

47 Ibid., p. 129 (according to the ’adat of Khvarshi, which also restrict the amount of kalym to 5 Roubles, p. 130); cf. ’adat of Karata (Ibid., p. 148), of Unkratl’-Chamalal’ (p. 159), and of Tekhnutsal’, which simply state that suits on betrothals are no more dealt with by ’adat (p. 141). The ’adat of the “former naibstvo of Tindy” still contain punishments for the breaking of marriage appointments (p. 123), reflecting an historical state. The abolishment of the legal consequences of betrothal does not seem to go back to Shamil, who, however, is reported to have introduced a maximum limit for kalym in order to give young men the possibility to establish families; see RUNOVSKII, “Kodeks Shamilia”, p. 346.

48 The Dargi compilation “Adaty darginskikh obshchestv” was first published in an abridged version in SSKG vol. VII (Tiflis 1873). The full version, including the cross-connecting paragraphs, was later published by Sandrygailo, Adaty dagestanskoi oblasti i zakatal’skogo okruga (Tiflis 1899), pp. 67-265.

49 Further extensive texts of this integrative kind were the “Adaty Gunibskogo okruga” from 1894 (published by Sandrygailo, Adaty, pp. 267-430), and, with a much smaller section on the “general ’adat”, the “Adaty Avarskogo okruga” (Sandrygailo, Adaty, pp. 431-504). Other ’adat compilations of the 1860’s adhere to the “additive” approach (“Adaty Kaitago-Tabasaranskogo okruga”, published in SSKG, vol. VIII [Tiflis, 1875], and in Sandrygailo, Adaty, pp. 527-541), or even ignore possible local differences (“Adaty Kiurinskogo okruga”, “Adaty Samurskogo okruga”, published in SSKG vol. VIII, and in Sandrygailo, Adaty, pp. 505-525, 527-541). For compilations of the last decades of the 19th century see “Sbornik adatov, sushchestvuiushchikh mezhdu zhiteliami Andiiskogo okruga”, “Sbornik adatov sushchestvuiushchikh v Kazikumukhskom okruge”, and “Sbornik adatov Kaitaga i Tabasarana” (all published by Omarov, Iz istorii prava, pp. 13-24, 49-56, 145-163). At the end of the 19th century, ethnographers of Daghestani origin began to explore special fields of customary law that had hitherto been neglected. See B.V. Dalgat, “Materialy k obychnomu pravu Dargintsev”, focusing on Dargi family customs (published in Omarov, Iz istorii prava, pp. 77-144).

50 For the structure and contents of these Arabic ’adat documents see Vladimir O. Bobrovnikov, “Ittifaq Agreements in Daghestan in the Eighteenth-Nineteenth Centuries”, in: Manuscripta Orientalia (St. Petersburg), vol. 8, no. 4, Dec. 2002, S. 21-27; Michael Kemper, “Communal Agreements (Ittifaqat) and ’adat-Books from Daghestani Villages and Confederacies (18th-19th Centuries) ”, Der Islam, vol. 81 (2004), pp. 115-151.

51 The two texts are published within a compilation of eleven Russian ’adat texts from different localities of the Bezhta district (“Perevod s arabskogo, o sushchestvuiushchikh v Bezhidskom okruge adatakh”, in: Omarov, Iz istorii prava narodov Dagestana, pp. 51-76). However, the texts are genetically very heterogeneous, and contrary to the publication’s heading, only the two extensive texts from Dido and Ukhnadal’ (texts I and VII) can be recognized as translations from Arabic originals. The other nine texts of this set are simple crime catalogues and seem to base on oral information only. - The Bezhta district existed only from 1860 to 1865 when its territory was attached to the Gunib and Avar okrugs.

52 Komarov, “Sbornik adatov shamkhal’stva Tarkovskogo i khanstva Mekhtulinskogo”, in: Kh.-M. Khashaev (ed.), Pamiatniki obychnogo prava Dagestana XXII - XIX vv. (Moscow 1965), pp. 183-260. Komarov’s “Collection of ’adat from the Principality of the Shamkhal and the Khanate of Mekhtula” is based on the Arabic Bayar tawarikh al-rusum al-daghistaniyya (“Explanation of the Statutes of Daghestani Customary Law”) written by a certain ’Abd al-Rahman b. Qulbandar in Jumada I., 1287 (August 1870). Curiously, the Arabic text was written outside the Shamkhal territory, three years after the Principality of the Shamkhal (seated in Tarki) was abolished, and probably even on Russian order; it is thus not an indigenous law document but itself a piece of ethnography. See Kemper, „Arabischsprachige ’adat-Ethnographie auf russische Bestellung?”, in: Kemper/Reinkowski (eds.), Rechtspluralismus, p. 317-330.

53 Maksim M. Kovalevskii, Obschinnoe zemlevladenie, prichiny, khod i posledstviia ego razlozheniia (Moscow 1879, reprint Frankfurt a.M. 1977); id., Istoriko-sravnitel’nyi metod v iurisprudentsii i priemy izucheniia istorii prava (Moscow 1880). Before working on the Caucasus he also produced two works on English history and constitution in 1880.

54 Kovalevskii’s Caucasian studies on kinship structures and customary law thus seem to belong to a second phase of his most fruitful career. As for his later works, they predominantly deal with the history of politics, economy, and sociology in Europe; see his Modern Customs and Ancient Law of Russia: Being the Ilchester Lectures for 1889-90 (London 1891); Proiskhozhdenie sovremennoi demokratii (5 vols., Moscow 1895); Russian Political Institutions. The Growth and Development ofthese Institutions from the Beginnings of Russian History to the Present Time (Chicago 1902); Le Régime économique de la Russie (Paris 1898). While some of these books were written and first published in English or French, others were first published in Russian and later translated into English, French, German or Italian.

55 On Kovalevskii see M.O. Kosven, “M.M. Kovalevskii kak etnograf-kavkazoved”, in: Sovetskaia etnografiia, 1951, 4; A.S. Omarov, “M.M. Kovalevskii kak issledovatel’ obychnogo prava narodov Dagestana”, in: Uchenye zapiski instituta istorii, iazyka i literatury, vol. 3 (1957), pp. 90-105

56 Uwe Wesel, Geschichte des Rechts. Von den Frühformen bis zum Vertrag von Maastricht (Munich 1997), pp. 14, 65-67.

57 Maksim M. Kovalevskii, Sovremennyi obychai i drevnii zakon (Moscow 1886); Maxime Kovalewsky, Coutume contemporaine et loi ancienne. Droit coutumier ossétien éclairé par l’histoire comparee (Paris 1893).

58 Maksim M. Kovalevskii, Zakon i obychai na Kavkaze (Moscow 1890), vol. II, p. 140, with reference to his Istoriko-sravnitel’nyi metod v iurisprudentsii i priemy izucheniia istorii prava (1880).

59 Maksim M. Kovalevskii, Zakon i obychai na Kavkaze, 2 vols. (Moscow 1890).

60 Kovalevskii, Zakon, vol. I, pp. 83-290.

61 Ibid., vol. II, p. 141.

62 Kovalevskii made use of the ’adat collections in the Russian language that had already been published in the 1870’s (mostly in SSKG) as well as of manuscript materials which were later published by Sandrygailo, Omarov, and Khashaev. Furthermore, he had some official reports at his disposal, which, as it seems, never appeared in press. Kovalevskii mentions that he made own observations in Daghestani regions such as Dargo, Gidatl’, Kumukh, and Dido, but it is not clear how long he worked in these places (see Zakon, vol. II, pp. 200-201, 228).

63 Ibid., vol. II, pp. 127-304.

64 Ibid., vol. II, pp. 140-141.

65 Ibid., vol. II, p. 133. Kovalevskii underlines that also the elders of lineages are often elected by its members and function as primus inter pares. According to him, the kinship organisation “stands closer to a republican type than to a monarchistic one” (pp. 151-153).

66 Ibid., vol. II, p. 158.

67 Ibid., vol. II, p. 133. Also ’adat provisions prohibiting the emigration of community members and the sharing of community resources with outsiders are regarded by Kovalevskii as features which the community “inherited” from kinship organisation (pp. 134-135).

68 Ibid., vol. II, pp. 158-159.

69 Ibid., vol. II, p. 256.

70 Ibid., vol. II, p. 237.

71 “Postanovleniia Kaitagskogo utsmiia Rustem-xana”, first published in SSKG vol. I (Tiflis 1868), then by Omarov, Iz istorii prava, pp. 176-184; “Utsmievskie adaty (v Kaitage)”, published later by Omarov, Iz istorii prava, pp. 185-196. The original Dargi text was finally disclosed and published together with a new Russian translation by R.M. Magomedov, Pamiatnik istorii i pis’mennosti dargintsev XVII veka (Makhachkala 1965).

72 Kovalevskii, Zakon, vol. II, p. 234. In fact, the text has to be interpreted not as a decreed law of the ruler, but as an agreement between the Khan and the communities of Kaitak. For this interpretation, see Kemper, “Communal Agreements”, pp. 128-129.

73 Kovalevskii, Zakon, vol. II, pp. 247-248.

74 For instance, he does not present any historical proof for his assertion that “the Avar Khans followed the opinion of the mullahs and qadis, and enriched their collections of local customs with principles they had borrowed from Arab jurists” (Zakon, vol. II, p. 259). Furthermore, it has to be noted that all indigenous Arabic ’adat collections from Avaria that have come down to us are documents of village communities or confederacies, not decrees of the Khans; cf. Kemper, “Communal Agreements”.

75 Kovalevskii, Zakon, vol. II, p. 217.

76 Ibid., vol. II, pp. 237-240. The French translation he quotes from is Minhadj at-talibin. Le guide des zélés croyants. Texte arabe et traduction française par L.W.C. van den Berg (Batavia 1885).

77 Kovalevskii, Zakon, vol. I, pp. 288-289.

78 On ishkil and baramta see now Vladimir Bobrovnikov, “Verbrechen und Brauchtum zwischen islamischem und imperialem Recht: Zur Entzauberung des iškīl im Daghestan des 17. bis 19. Jahrhunderts, in: Kemper/Reinkowski, Rechtspluralismus, 297-316.

79 Ibid., vol. I, p. 282; cf. 280.

80 Ibid., vol. I, pp. 289-290.

81 Bobrovnikov, “İttifaq Agreements in Daghestan”.

82 Kemper, “Communal Agreements”, p. 151.

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Professeur à l’Université de Saint-Lawrence, Canton, États-Unis

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