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The rules of Barat. Tribal documents from Yemen

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Paul Dresch

Part 1. The detailed setting

Rights to land

Texte intégral

  • 1 Wilkinson (ʻTerritoryʼ pp. 304-5, 306, 307) is one of very few authors to point out the importance (...)
  • 2 Neither qara nor ṭalḥ provides good fodder for sheep, but in times of famine one could burn off th (...)

1The system of land-use at Baraṭ does not work by cadastral survey. But there must be common principles at least if local arguments are to be intelligible among those involved, and a reasonable approach to the problem is through the question of owning trees.1 ʿUlūb (pl. of ʿilb, or jujube, supposedly the Qur’ānic sidr) seem to be property in the sense envisaged by sharīʿah conceptions of milk. They can be held jointly or severally; the fruit is edible, green branches are sometimes cut as fodder, and ʿilb wood is the best for building. Qara and ṭalḥ (two types of acacia) are less useful for this purpose because the first usually grows in too twisted a form to make good roof‑beams, and the second is liable to wood-worm and to crumbling away.2 The only term I have heard freely used in discussion of ownership or use of these latter trees is again milk, but, unlike with ʿilb trees, the pattern of ownership for qara and ṭalḥ is not what sharīʿah law envisages. Again the qawāʿid (text B section 30):

If a well is [newly] established or a well is damaged/destroyed and needs wood [to repair it], its owner is free [to take] what wood is needed of qara or ṭalḥ from common land (faysh) or land off-limits (maqṣūr)...

  • 3 Estimates of the fine vary, perhaps with how immediate the ownership seems.
    Discussing trees on fai
    (...)
  • 4 A certain theoreticism creeps into explanations here, such as the person planting the tree owning “ (...)

2No distinction is made here between live wood and dead. Usually only dead wood is taken by any but trees’ owners (these owners may be joint or several), and others who cut live growth, whatever the variety of tree, are liable to a fine.3 Theoretically, leaves and branches of ʿilb trees on common land may be used for fodder by anyone sharing the common land, and planting an ʿilb where no specific rights obtain would, again in theory, be li-sabīl allāh, done in God’s name for the common good. In practice ʿilb seems always, despite the theory, to be heritable milk or property.4 Ownership of the other main trees is often more clearly joint.

3Qara and ṭalḥ in Wādī al‑Nīl (between Baraṭ and al‑Marāshī) are said by some to belong to all Dhū Muḥammad. Down most of the wādī there are no settlements, but the area is used for grazing. In the early 1980s no-one was gathering fire-wood there, except badu for camp-fires on the spot, for fear that Sufyān might move in and gather wood commercially, which itself argues a certain indeterminacy of rights. Others argued that most of Wādī al‑Nīl “belonged” specifically to Dhū Zayd, so therefore did the trees and Dhū Zayd could take what dead wood they wished. To resolve the disagreement in terms that might produce a map is probably not possible. Opinions differed and there was no reason among Dhū Muḥammad’s fifths ever to put them to the test: low-level gathering by herders who belonged mainly to Dhū Zayd went on, and intensive gathering, whether by people of Dhū Zayd or by others, was avoided, as seems still to be the case two decades later.

4As one nears the lower end of the wādī, however, rights become clearer. A few kilometres above al‑Kharāb are several agricultural areas that belong to people of Dhū Zayd. Where the course of the wādī clearly leads to these areas, the trees are clearly Zaydi property. Where the run-off goes to a particular field, the qara and ṭalḥ belong to the field’s owners; where the run-off goes to a settlement, the settlement as a whole owns the trees –subject to the rule in both cases that one does not without permission cut any tree in which others have specific rights. Near the head of the wādī (the Baraṭ end) it is probably true to say the area “belongs” to Dhū Muḥammad generally, but the rugged nature of the terrain means questions of ownership in trees do not arise.

  • 5 Cf. al‑Ḥajrī Buldān p. 112. In tribes further west and south the principle is quoted that “borders (...)

5The seeming coherence of the scheme in the lower reaches of Wādī al‑Nīl is disrupted by the presence of al‑Shaʿābīyah (sing. Shuʿbī), who are shaykhs of al‑Kitmān in Dhū Ḥusayn, a quite different tribe.5 Most live at Daḥīyah, east of Rajūzah. The story is that once, in the distant past, Dhū Ḥusayn held most of the area at the lower end of Wādī al‑Nīl but were pushed out by Dhū Muḥammad, all except al‑Shaʿābīyah, who were heavily intermarried with Dhū Muḥammad, particularly with Dhū Mūsā and Āl Dumaynah, and were treated more as kin than rivals. A half dozen families thus remain where they were, well within Dhū Muḥammad’s territory but unequivocally part of Dhū Ḥusayn. Their fields lie about five km. north of Kharāb al‑Marāshī.

6Sundry trees belong to them because of run-off, and al‑Shaʿābīyah also own there a conspicuous defensive tower or ḥuṣn. There is nonetheless a border, a little east of there, between Dhū Muḥammad and Dhū Ḥusayn as wholes.

  • 6 This is also the principle invoked in rights of pre-emption, roughly the Islamic shufʿah. Arable is (...)

7In arguments about ownership of wood, the principle invoked is simple. Land from which water runs to a piece of arable “belongs” (people say it is milk) to the owner of the arable.6 In practice, understandings about this piece of land or that are complex. Drainage divides and coalesces. One can therefore find small clusters of trees that belong to two or three families (the run-off from there goes only to their land), while a similar group of trees a few metres away belongs to a whole settlement because the drainage at that point has not divided. And the principle of run-off is suspended arbitrarily by the location of villages. One can therefore have trees right next to a village that in fact belong to a village much further off, because the run-off from where the trees stand goes to this second village, not to the first; on the other hand trees that by the rule of run-off should belong to village A are in fact the property of village B because a border is recognized. Villages and their sectional attachments are taken as given.

  • 7 To take an obvious case from this region, Wādī Amlaḥ, just north of Baraṭ, seems to belong in its u (...)

8Asnam al‑ʿUlyā and Asnam al‑Safl, as we mentioned earlier, are respectively Dumaynī and Maʿṭirī. One could not, I think, deduce from physical geography that the settlement forms two halves, but the divide is shown by a line of marker-stones each side of the wādī-bed; the rule of run-off starts and ends at the line. Drainage, more generally, though it otherwise specifies use-rights or property, does not define villages, sections, or even tribes.7 Thus Wādī ʿUmayr seems to run all the way from al‑Akhbāb, at the northern edge of Baraṭ near where the track turns off for Wādī Amlaḥ, to al‑Baḥbāḥah in Dhū Ḥusayn’s territory. Al‑ Akhbāb belongs to people from Āl Ṣalāḥ, as does the next settlement south-east along the wādī, Nuṣayf; al‑Miṭlāʿ belongs to people from Āl Dumaynah; Ḥajjān belongs to al‑Maʿāṭirah, and al‑Malḥ (near al‑ʿUqbah), the last settlement before Dhū Ḥusayn’s territory, belongs to manūʿ who attach to Āl Dumaynah, although right on the border-line fall groups from Dhū Mūsā.

9Ḥajjān, one might note in passing, receives run-off not only from Wādī ʿUmayr but also from Wādī Asnam.

  • 8 Apart from the list of signatories to text B, where the name appears under Dhū Mūsā and Āl Aḥmad b. (...)
  • 9 Sections of tribes may redefine themselves by “brotherhood”, changing from membership of one larger (...)
  • 10 The regionʼs political history will be touched on below, but the Qāsimī Imams were involved with al (...)

10Such stories as that about al‑Shaʿābīyah assume sections and tribes have sometimes pushed others off their land. But pinning this down seems impossible. Al‑Mahāshimah, for instance, recurs as the name of a fraction in, I think, three of Dhū Muḥammad’s fifths and in Āl Sulaymān, and probably denotes a small separate tribe as well, but what the connections among these elements are, if any, remains unclear.8 Names may recur in different places for reasons other than displacement of groups.9 In Nihm, well south of Baraṭ, one finds sections with the names of tribes elsewhere (ʿIdhar and Murhibah, for instance); al‑Hudhayl, a conspicuous section name in Sufyān, recurs in Dhū Muḥammad; Sufyān’s Abnā’ al‑Marzūq echo the Marāzīq of Banī Nawf; in both Dhū Muḥammad and Dhū Ḥusayn one finds such distinctive family or section names as al‑Qaḥūm and Āl Thaybah. Some of these names may well denote families who have moved; others may be parallel traces or appropriations of ancient names. Around Baraṭ it is said there are many families of Dhū Muḥammad and Dhū Ḥusayn who came originally from Najrān or ʿAsīr, but there seems no agreement on exactly who they are or when they came.10

11The arbitrary location of villages and the rights their inhabitants possess at Baraṭ are taken as given. They have been there min zamān, “from long ago”. Within these sets of facts, the use of land may be modified but the constraints are those of existing relations among groups of people. One can sink a well on one’s own property, for instance. If there is doubt about how far that property extends, then documents are produced and witnesses called. If one wishes to sink a well elsewhere, however, one needs the agreement of all those to whom the land “belongs” (again the general language used is of ḥudūd and milk). Outside the ḥudūd of particular groups –in other words in the faysh or shaʿrā’, the common grazing land– a new well is supposedly li‑sabīl, a work in God’s name for the benefit of all, but in the qawāʿid rules apply (text B section 43):

If one of ahl al‑malāzim [the people bound by this agreement] sets himself up on empty land (ar bayā’: literally, “white land”) where nothing is and digs there a well or builds there [a house], and if someone [then] wants to build next to [his] building or dig next to [his] digging, then the set-aside area (ḥaram) of the house [where the second man cannot build] is [as wide as] the height [of the house] and the set-aside area of the well is [as wide as] the length of its well­rope. This is in empty land (ar bayā’) where no-one has rights, or property, or anything disputed.

  • 11 In sharīʿah law, mawāt (the “dead land” which corresponds to tribal “white land”) can be “vivified” (...)

12Once a well is sunk, the possibility arises of new land being brought into production by ploughing.11 The run-off to that land will become ḥudūd and milk, and the arbitrary starting point for discussion of what belongs to whom thus shifts. For this to happen one needs the agreement of all those within whose existing ḥudūd the land would lie and all those whose run-off might be affected, which in practice means no agreement is usually forthcoming for areas in which, or next to which, a significant number of people live.

  • 12 Āl Sulaymān had previously been at odds here with al‑Maʿāṭirah, whom Dhū Muḥammad had refused to su (...)

13Presumably which places count as ar bayā(“white land”) must have shifted over time as areas were newly taken by one tribe from another or fell out of use because of drought and tribal conflicts and were later reappropriated. Technological changes more recently have produced quite obvious shifts. For example, the advent of drilled wells exacerbated conflicts among the tribes around Tamr and Silbah, far to the east of Baraṭ, which came to a head in the early 1980s. Although there had previously been some restricted farming by Dhū Ḥusayn at the end of the Wādī at Yatmah, this activity spread and deepened with the availability of diesel pumps. Land which previously had been grazing (perhaps even ar bayābecame potential crop-land. The initial argument at Silbah turned on ḥudūd not of particular fifths (or in Dhū Ḥusayn’s case, eighths) but of Dhū Muḥammad and Dhū Ḥusayn as wholes. The extent of the claims was disputed at great length, the nature of the claims was not ­that Dhū Ḥusayn had ḥudūd, which previously defined preferential grazing rights, at the north edge of Silbah and Dhū Muḥammad at the south edge. Between the several limited ḥudūd, everything would seem to have been ḥudūd Dahm.12 The development of pump-well farming did nothing to change this, but the privative interests of specific families or tribal sections have been replicated in an area that before was space shared simply by Dhū Muḥammad.

  • 13 An older anthropology of Arab tribes used sometimes to grapple with whether genealogy or co‑residen (...)
  • 14 25 years ago Dhū Zayd at Baraṭ was said to count some 700 grown men, Āl Aḥmad b. Kawl about 500, an (...)

14The area of Silbah that Dhū Muḥammad claimed was theirs, they said, would be divided equally among the tribe’s fifths and sub-divided thereafter, which by the mid‑1990s was what in fact had happened.13 The fifths are nothing like of equal size, but collective debts, of the kind with which the qawāʿid deal, have always been managed this way: blood-money after wars was collected in equal amounts from each fifth although some fifths have three times the membership of others.14 At Silbah communal rights, attaching to all Dhū Muḥammad, were allocated as rights of property to sections, households and persons, thus producing a set of particular, geographically rooted identities where previously there were none. Perhaps something similar happened long ago at Baraṭ and al‑Marāshī, producing the loose blocs of territory one sees now. If so, then a great deal must have happened subsequently.

Notes

1 Wilkinson (ʻTerritoryʼ pp. 304-5, 306, 307) is one of very few authors to point out the importance of wood. In discussions on the spot it is one of the first things people mention.

2 Neither qara nor ṭalḥ provides good fodder for sheep, but in times of famine one could burn off the thorns, smash the remains, and feed starving animals the bits and bark. Qara leaves, apparently, were also used to scrub hides for tanning and curing.

3 Estimates of the fine vary, perhaps with how immediate the ownership seems.
Discussing trees on fairly distant land people often say the cost of the damage and a sheep; on land near the owner’s house or arable, perhaps a sheep and four times the damage. Such amends are paid to the owners of the trees, not to e.g. a village or tribal council.

4 A certain theoreticism creeps into explanations here, such as the person planting the tree owning “one quarter” of it; but how and when such a calculation would be made is most unclear. Nonetheless people do sometimes plant and protect ʿilb other than on their land, apparently for the general good, building a wall around the sapling. On the other hand, ʿilb in Wādī al‑Nīl that looks as if by rules of run‑off it should belong to no one in particular (or perhaps to all Dhū Muḥammad) has always turned out on enquiry to be the property of some particular badu family.

5 Cf. al‑Ḥajrī Buldān p. 112. In tribes further west and south the principle is quoted that “borders do not enter into questions of [private] property” (a1-ḥadd mā yadhkhu1 fī 1-maḥdūd): one can own arable within othersʼ borders. That seems not to be the case at Baraṭ. But I cannot think of cases in e.g. Ḥāshid where a section of one tribe lives inside another tribeʼs borders.

6 This is also the principle invoked in rights of pre-emption, roughly the Islamic shufʿah. Arable is inherited in the usual way, with women usually being bought out (at least nominally) for cash. But any attempt to buy or sell land among families provokes arguments over shared run-off.

7 To take an obvious case from this region, Wādī Amlaḥ, just north of Baraṭ, seems to belong in its upper reaches to Āl Salīm, to Wā’ilah lower down, and to al‑ʿAmālisah further still downstream, with each tribe’s territory including also parts of quite separate drainage ­systems (Dresch Tribes p. 337).

8 Apart from the list of signatories to text B, where the name appears under Dhū Mūsā and Āl Aḥmad b. Kawl, see e.g. al‑Ḥajrī Buldān pp. 109, 114, al‑Maqḥafī Muʿjam pp. 1464, 1670. The same sources allow one also to follow the names given below, but al‑Mahāshimah present a particular puzzle for informants.

9 Sections of tribes may redefine themselves by “brotherhood”, changing from membership of one larger section or tribe to another without people necessarily moving. The effect is easier to track among tribes further west where section territory is contiguous and historical geography often resembles the “Rubik’s cube” puzzle: the pattern of different coloured cells changes, but the space within which the change occurs is constant. Doubtless something of the kind occurs at Baraṭ, but where territory is not contiguous there seems no way of distinguishing redefinition from migration.

10 The regionʼs political history will be touched on below, but the Qāsimī Imams were involved with al‑Ḥijāz in the 17th century, and at the beginning of the 19th century Wahhābī expansion provoked interaction with ʿAsīr; in the 1840s Sharīf Ḥusayn was heavily involved with Baraṭ and with Baraṭ tribes in Lower Yemen, as well with areas to the north (Dresch Tribes p. 216, Haykel Revival and Reform p. 188). Quite apart from more parochial alliances, there is nothing implausible about claims of family origins from north of Baraṭ.

11 In sharīʿah law, mawāt (the “dead land” which corresponds to tribal “white land”) can be “vivified”, and property rights accrue explicitly. I have not heard a corresponding theory from Baraṭ’s specialists in ʿurf. Accruing rights happens, so to speak, outside custom. The possibility of unoccupied land, however, is envisaged clearly by the qawāʿid

12 Āl Sulaymān had previously been at odds here with al‑Maʿāṭirah, whom Dhū Muḥammad had refused to support. Āl Sulaymān and Dhū Ḥusayn then fell out over grazing and Dhū Muḥammad acted first as mediators, but in about 1979, as the dispute near Yatmah intensified, Dhū Muḥammad and Āl Sulaymān formed a pact against Dhū Ḥusayn. When serious fighting broke out it was al‑ʿAmālisah, in 1983, who first forced a truce or kuflah.

13 An older anthropology of Arab tribes used sometimes to grapple with whether genealogy or co‑residence was the more basic, often trying to reduce the identity of sets or tribes to questions of ecology. In fact this rendering of small identities in spatial terms which did not exist before happens widely whenever new land is acquired or settled.

14 25 years ago Dhū Zayd at Baraṭ was said to count some 700 grown men, Āl Aḥmad b. Kawl about 500, and Dhū Mūsā about 200. The absolute figures seem low, and may reflect the numbers willing to be actively involved in the dispute then going on with Wā’ilah, but the proportions are, I think, about right.

© Centre français de recherche de la péninsule Arabique, 2006

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