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The rules of Barat. Tribal documents from Yemen

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Paul Dresch

Part 2. Customary law in context

Connections, amends, compensation

Texte intégral

  • 1 For the vowelling of ʿulqah see al‑Sudumī Naẓarīyah pp. 130, 132.

1Terms concerning protected status as a travelling companion, guest, or refugee will be specified when we meet them in the texts. But each such status involves a “link”, the conventional gloss I use at all points below for ʿulqah,1 which can serve as a generic term to cover such instances as escort (siyār), refuge (qiṭār), protection (rabāʿ), truce and settlement (ṣulḥ) or, perhaps less expectedly, the ties which derive from eating together (zād al‑baṭn). All these instances have something about them of contract: they are quite specific and one enters them voluntarily. While the sections of tribes are far from solidary, and one can always say fellow-tribesmen are in the wrong and therefore do not deserve support, a “link” is freely and personally agreed to and is therefore, in so far as people agree that the link was formed, binding.

  • 2 This passage was cited in Dresch ʻPlacing the blameʼ (1987) p. 435. The document was shown me, alon (...)

2The texts at issue in the present work purport to be something over two hundred years old, but the language they use has in some respects not changed until recently. We can take for example a letter sent by shaykhs in Sufyān to their counterparts in Banī Ṣuraym when the latter asked advice on ʿurf in March 1983.2 Among the questions discussed were precisely links or ʿulaq:

الرَفَق عُلقة مسنونة بين القبائل لرفيق ومسترفق ولا رفيق إلا ما هو رفيق السلامة أما الرفيق المنسحِب مِن جانب رفيقه فما له عُلقة فلا بيضاء وصفيحته سوداء والبيضاء للابيض لا له ولا عليه والبيضاء لمَن قام بعلقة المترفق بالوفاء أما المترفق اذا تخلى عنه رفيقه بعد أن حمل رَفَق وسمح بتهديده ولم يقوم بواجب المترفق فيما ترفق مِن أجله فقد صقط عَرْضه صقط قبيلته وله شاسة سوداء

Companionship/escort is a recognized/established link (ʿulqah masnūnah) among the tribes, for the escort and the one who takes escort. There is no companion save the companion of safety/peace. As for the companion who leaves his companionʼs side, he has no link and is in the wrong (mā la-h bayāʼ: literally, has no whiteness”). His sheet [flag] is the black one; the white is for the white, who is owed and owes nothing. The white [flag] is for he who executes faithfully the link of a companion/escort. As for the one escorted [or protected], if his companion/escort abandons him after taking on the [duty of] escort and allows him to be threatened, and does not do his duty as companion as agreed, then he [the man who took on the responsibility] loses his ʿar. Who loses his ʿar loses his tribe and is owed a black flag (shāsah sawdāʼ)

  • 3 For a good account of symbolic black and white in ʿurf elsewhere, F.H. Stewart, The contract with s (...)

3The symbolism of black and white flags is fairly self‑explanatory; the details of procedure we can look at later.3 Suffice it to underline that this is plainly a public issue whose importance extends beyond the claims of the escort and one escorted. Breaching the “link” of companionship, once formally agreed to, means losing oneʼs ʿar; oneʼs ability to give and take protection. One is not simply refused support: one is cut off from formal relations with fellow tribesmen.

  • 4 al‑Sudumī Naẓarīyah p. 103, cf. al‑Akwaʿ MadkhaI pp. 29, 40 for the same idea in more formal contex (...)

4Compensation for material damages is largely a collective matter, and members of one tribe or section at odds with a second are in most circumstances expected to pay and be paid together, or fight and be fought together: if oneʼs fellows are in the wrong and deserve no support, that is a contingency to be addressed as such. To pay compensation jointly for “clean blood” (dam ṣāfī) is right and proper. But everyone, right down to family-level, should disown a man who owes amends for “moral” damages (ʿayb or ʿatb) and refuses payment. In the documents at hand (text A section 18, text B section 23), and still in colloquial usage, one finds the phrase ʿalā 1‑dhamm iʿtirā “there is no intervening for [or protecting] others in cases of shameful action”. Al‑Sudumī quotes in parallel what amounts to a proverb: lā yaqbal al‑ʿāʼib illā ʿāʼib, “no-one will accept a shameful person [i.e. one who commits ʿayb] but another shameful person”.4 Breaking a “link”, although particularly important in the way that breaches of “custom” are brought to justice, as we shall see, is not the only disgrace that compromises moral and legal status.

  • 5 These distinctions and equations are partly contextual. The term naqīṣah (pl. naqāʼiṣ) is sometimes (...)
  • 6 In other contexts dhamm and ḥashm can be contrasted. If someone is under the protection of another (...)

5We have already noted how ʿayb (a disgraceful act, or the compensation for such an act) can be contrasted with ʿurr; an act that does wrong specifically to oneʼs womenfolk or land, giving ʿayb the particular meaning of an offence against public commitments and reputation. In other contexts a simpler contrast is evident. The term ʿayb can be used of any disgraceful act, whatever its nature, and thus be contrasted with material damage or the compensation for such damage, called naqṣ or naqīṣah. This same distinction is made with dhamm and dam, roughly shame-money and blood‑money. The principle is often quoted that al‑dhamm qabla l-dam (or al‑ʿayb qabla l- naqṣ), meaning shame or disgrace must be dealt with before a debt can be composed for wounds, killing, or material damage.5 In some contexts a virtual synonym for dhamm (shame-money) is ḥashm.6 In cases of multiple amends one sometimes hears the phrase, dam wa-dhamm wa-ḥashm. In all of these cases, it is only once amends are paid that a debt can be settled and thus the dispute resolved or properly contained (cf. text B section 37).

Document 7: List of wound-prices from Sufyān (undated)

Document 7: List of wound-prices from Sufyān (undated)
  • 7 For discussion of naqāʼ, al‑Sudumī Naẓarīyah pp. 113, 178 ff. The same term in North Arabia provoke (...)
  • 8 For an example of this principle in action, P. Dresch, Keeping the Imamʼs peace, Peuples Méditerran (...)

6The status of not being owed amends and the action which wipes out a debt are both called naqāʼ (or naqā: tribesmen at Baraṭ neither write nor pronounce the hamzah). The term means “purity”, perhaps, and often one might want to say “good name”. Correspondingly, and more conspicuously here, it means the taking of amends or revenge to restore good name,7 and a reasonable gloss might be “absolution”. Where the word is not defined explicitly or by context it usually means blood­-vengeance, but in some passages (e.g. text B sections 13 and 27) context suggests a less dramatic meaning of appropriate payment. Obviously, if one is owed even payment for wounds or for damage to property, and the debt is not paid, then one suffers an insult and naqāʼ, in the sense of good name, is at issue. A table of wound-prices from Sufyān, reproduced here separately as Document 7, gives an idea of how recompense is depicted as exact, law-bound, and therefore just.8 But custom defines certain actions in themselves as inadmissible and deserving of separate, defined amends.

  • 9 G1aser (ʻArḥabʼ p. 5) seems to suggest a standard ʿayb of 110 (or 100) riyāls in Ḥāshid, also, a ce (...)
  • 10 al‑Sudumī Naẓarīyah pp. 54-7. Note the contrast with for instance the Irish “face-price” (lóg n‑ene (...)
  • 11 Visitors enquiring about ḥukm ʿurfī are often told of exemplary judgements bi-l-marbūʿ bi‑l‑muḥadda (...)

7In many cases a standard payment may be imposed for ʿayb. In most of Bakīl this would have been 110 silver pieces or riyāls, in Ḥāshid 88 riyāls, accompanied often by a bull,9 and half-ʿaybs or quarter-ʿaybs of this sort (half the money and perhaps two sheep) are common; lesser penalties are recognized also, as in Sufyān a generation ago seizing a manʼs dagger in an argument was supposed to be recompensed by payment to the man offended of five silver pieces. But a common form, where material damage is done in some disgraceful circumstance, is to pay for the disgrace or shame at the same rate as the damage: al‑dhamm mithla l-dam or al‑ʿayb mithla l-naqīṣah. In other words, the material damages or payments for a wound are doubled.10 For more serious offences the culprit may have to pay four-fold (bi-l-marbūʿ) or even eleven-fold (bi‑l‑muḥaddash), and the principle may be applied, in theory, to vengeance for a major wrong.11 If one of a manʼs women-folk were deliberately killed, for instance, or if his guest were killed, he might not have wiped out the disgrace until he had killed four men from the culpritʼs tribe or section.

  • 12 How much cash was actually available until recently must be in doubt, see Ḥabshūsh Ruʼyah p. 70, (...)

8Multiple revenge is the subject of much condemnation by Islamic jurists and of ambivalent stories among tribesmen (there is seldom a clear-cut moral to the tale). For instance, long ago a man from Āl Ṣalāḥ was escorting a man from Yām in Dhū Muḥammadʼs territory. The Yāmī was murdered by a group of his escortʼs in-laws, also from Āl Ṣalāḥ, and the escort killed all six of those he thought responsible. Much later, he realized from a passing remark that his own motherʼs brother (khāl) must have been with the killers that day and killed him too. Yām, in gratitude, brought a conspicuous white tombstone for their own murdered man, which supposedly can still be seen. The escort, having whitened his face (bayyaa wajh-ah) by killing seven for one, but having also provoked an insoluble conflict with his kin and neighbours, fled to Lower Yemen –where he became, so the story runs, a wealthy shaykh. Pursuing the right in a personal or an abstract sense can disrupt all parochial attachments. It is better in local terms if amends are agreed in cash or kind.12

  • 13 The full blood-wit is supposed from early Islamic example to be 100 camels, equivalent to 1,000 gol (...)

9Revenge and cash-payment may be combined, so if one of the manūʿ whom we mentioned earlier (part one, above) were killed by an outsider other than in war, Dhū Muḥammad, it is said, might have sought a death in return and goods or cash to the value of three times the blood-money. In the market guaranty (text 1 section 10) one can hardly envisage naqāʼ four-fold meaning the guarantors always seeking four deaths for a death, four wounds for each wound inflicted. Whether payment or blood is taken as absolution depends on the way a dispute unfolds. But amends for ʿayb that involve either wounds or material damage are conceived of in discussion, if not always paid in practice, as multiples of compensation, such as blood-money, which itself is reckoned in cash terms.13

Notes

1 For the vowelling of ʿulqah see al‑Sudumī Naẓarīyah pp. 130, 132.

2 This passage was cited in Dresch ʻPlacing the blameʼ (1987) p. 435. The document was shown me, along with a brotherhood pact among Ṣubārah, several letters on ʿurf addressed to shaykhs elsewhere, and a number of fragmentary lists on wound-price (arsh), by acquaintances from Bayt Ḥubaysh in al‑Madaqqah. Unfortunately I was not able to follow up on what looked to be a substantial fund of material.
Apart from adding
hamzahs and some vowels for ease of reading I have left the spelling as I found it. Note the ṣād for sīn in saqaṭa, to lose or drop. Note also the use of masnūn, cf. al‑Sudumī Naẓarīyah pp. 95-9.

3 For a good account of symbolic black and white in ʿurf elsewhere, F.H. Stewart, The contract with surety in Bedouin customary law, UCLA Journal of Islamic and Near Eastern Law vol. 2/2 (2003) pp. 181-3, 184. Black and white flags are fairly often mentioned in Yemeni histories, e.g. Ḥusām al‑Dīn Tārīkh p. 477.

4 al‑Sudumī Naẓarīyah p. 103, cf. al‑Akwaʿ MadkhaI pp. 29, 40 for the same idea in more formal contexts expressed through the term iʿtirāḍ. Obviously this overlaps with ideas of “outlawry” in other systems. But unlike e.g. the Icelandic case (Miller Bloodtaking p. 69) the plaintiff is not obliged to hunt down the person whose immunity is suspended. Nor, as happens early with English law, is society as a whole invoked. As in aboriginal Australia, to put this in rather instrumental terms, the system “favours justice by abandoning the wrong­doer to the avenger. In the gamble of private strife it loads the dice in favour of the just” (Hocart Kings and Councillors p. 130).

5 These distinctions and equations are partly contextual. The term naqīṣah (pl. naqāʼiṣ) is sometimes used in the present documents (e.g. text B section 25) to mean losses or debts of all kinds. But elsewhere (e.g. text B section 26) a distinction is apparent between naqṣ, as material damage or compensation for such damage, and for instance ghālī or ʿatb, amends for a disgraceful act or breach of some obligation.

6 In other contexts dhamm and ḥashm can be contrasted. If someone is under the protection of another and a third party wrongs him, then multiple amends are due: the portion paid to the wronged protégé would be ḥashm, and the amount paid his protector for the insult would be dhamm. Confusingly, dhamm can sometimes also be used simply of a wound (syn. kawn) whatever the circumstances in which it was inflicted.

7 For discussion of naqāʼ, al‑Sudumī Naẓarīyah pp. 113, 178 ff. The same term in North Arabia provokes some confusion among authors, e.g. A. Jaussen Coutumes des Arabes au pays de Moab ([1908] 1948) p. 161, Stewart Texts part 1 p. 213, part 2 p. 187. Presumably the phrase radd al‑ naqāʼ ʿalā there means to hand the responsibility for war to oneʼs enemy: he can preserve oneʼs good name by behaving sensibly or force one to seek absolution in blood.

8 For an example of this principle in action, P. Dresch, Keeping the Imamʼs peace, Peuples Méditerranéens vol. 46 (1989). It deserves noting that translations of e.g. Anglo-Saxon codes usually omit the long lists of nominal wound-prices that in fact take up much of the original texts: where calculation is bound to be arbitrary in practice, the assurance of theoretical exactitude has its own value in all these systems.

9 G1aser (ʻArḥabʼ p. 5) seems to suggest a standard ʿayb of 110 (or 100) riyāls in Ḥāshid, also, a century ago. I doubt he is right. A fragment from Khiyār in Banī Ṣuraym, which seems from the paper and the documents it was rolled up with to date from the mid-19th century, gives 44 riyāls, a ha1f-ʿayb, for what looks to be a default on guaranty.

10 al‑Sudumī Naẓarīyah pp. 54-7. Note the contrast with for instance the Irish “face-price” (lóg n‑enech), which varied with rank but for any given man was constant: Kelly Irish Law pp. 8, 125, 126. In the Yemeni case all men are nominally of equal price, whether wounds are being paid for or killing, and what is multiplied according to the setting in which wrong is done is the cost of the harm or damage.

11 Visitors enquiring about ḥukm ʿurfī are often told of exemplary judgements bi-l-marbūʿ bi‑l‑muḥaddash, forty-four-fold, but I have never heard of this actually being done or seen evidence for it in documents. Multiple payment, meanwhile, seems compatible with sharīʿah law, falling readily under the rubric of taʿzīr; multiple revenge would not be, and this is one of few points (perhaps the only point) where ʿurf and sharīʿah differ quite fundamentally.

12 How much cash was actually available until recently must be in doubt, see Ḥabshūsh Ruʼyah p. 70, Yémen p. 113. Cf. P. Grierson, La fonction sociale de la monnaie en Angleterre aux viieviiie siècles, Settimane di Studio del Centro Italiano vol. 8 (1961). Of great interest, and worth coming back to later, is the very idea of money, rather than land or livestock, compensating for a person in case of murder.

13 The full blood-wit is supposed from early Islamic example to be 100 camels, equivalent to 1,000 gold mithqāl, which means 333.1/3 wiqīyahs or dīnārs. One then finds conventional rates for wounds, such as 40 dīnārs for a wound that cuts to the periosteum (simḥāq): the same scales apparent in one of Abū Ghānimʼs texs (Bunyah qabalīyah p. 384) occur in Kitāb al‑lawāzim (supposedly early 14th century) and in a list from Sufyān drawn up in AD 18912.
Even apart from conversion of these nominal sums to silver or goods, the amount to be paid in practice is far from clear. The price of silver itself shifted wildly in the 19th century, with important effects in America and British India, but apparently none on blood-money.

Table des illustrations

Titre Document 7: List of wound-prices from Sufyān (undated)
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