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The rules of Barat. Tribal documents from Yemen

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Paul Dresch

Part 2. Customary law in context

Privileged persons and circumstances

Texte intégral

  • 1 We quoted earlier two chronicles of the early 18th century: Ḥusām al‑Dīn Tārīkh and al‑Wazīr’s Ṭaba (...)

1When writing of law, whether customary or formally Islamic, one finds oneself moving from period to period as if no great change occurred, and the same usually happens when discussing moral principles. Written histories, although the values they exhibit seem as changeless, are all but obsessed with dates and sequence. To resolve this tension in the modern style, by concentrating on how values and assumptions themselves might alter over time, if they do in the case at hand, is ruled out by lack of sources.1 We can, however, look at how people of the kind with whom history deals, or who themselves “make history”, are inserted in the tribal system. The obvious case is that of Bayt al‑ʿAnsī, or Āl al‑ʿAnsī, whom we noted in the summary of political events (part two, above) as at odds with the Qāsimī Imams in the eighteenth century and also as protected (hijrah, muhajjarīn) near al‑ʿInān. Documents concerning them provide a useful supplement to the Baraṭ texts presented here.

  • 2 al‑Akwaʿ Madkhal (1995), Les Hiǧra et les forteresses du savoir au Yémen (B. Marino trans.), Cahier (...)
  • 3 al‑Akwaʿ Madkhal p. 28, Forteresses p. 11. As explained in part one, above, Dhū ʿAmr here seem to b (...)

2Ismāʿīl al‑Akwaʿ’s “Introduction to Knowledge of the Hijrahs and Fortresses of Learning in Yemen” (al‑Madkhal ilā maʿrifat hijar al‑ʿilm wa-maʿāqil-hu) has been ably translated by Brigitte Marino.2 Unfortunately the French translation has not found as wide an audience as it deserves; the Arabic original has fared as poorly. It therefore worth quoting the texts in these works that deal with Baraṭ, the first of which (dated 1112 hijrī, or AD 1700, renewed and expanded though the 1890s) concerns Dhū ʿAmr’s guaranty of the hijar or protected enclaves at al‑Raḍmah and al‑Sawādah:3

وإن مَن دخلها فهو آمن ومَن فعل فيها شيء مِن النُكَت فإنّه مربوع عقائر وكساً إلا ما كان عَمْد فلا ينفقيهم إلا النقاء والمتهم في الحُرم يؤدّب بعقير وكسوة ومَن هدّ في الحُرم او سلّ جنبيته او قلب بندق فحكم الهجرة عقيرين ورأسين غنم على ما في القواعد

  • 4 The association of slaughter-beasts and clothes or cloth in amends of this sort recurs in the histo (...)
  • 5 Here Marino has, I think, gone slightly astray translating as “Si la faute est involontaire, seul u (...)

Whoever enters them [i.e. the hijrahs] is safe (āmin, secure). Whoever commits a fault (nuktah, nuqah) there, it is [to be compensated] four-fold in slaughter­beasts and clothing,4 except [for] what is deliberate, where nothing clears them (yunaqqī-hum) except absolution (naqāʼ),5 and the accused in the protected places is fined (yuʼaddab) slaughter-beast and clothing. Whoever commits an offence in the protected places, or draws his dagger, or points his rifle [at anyone], the judgement for the hijrah is two slaughter-beasts [presumably bulls] and two head of sheep, according to what is in the rules/agreements.

  • 6 al‑Akwaʿ Madkhal p. 34, cf. ibid p. 40 for Hijrat al‑Saraʿah. For the principle that “what they are (...)

3Any breach of the peace within the hijrahʼs bounds is thus fined as such, and wounds or damage must be paid for (the details we can look at later). The people who are hijrah or muhajjar in this case, descendants of ʿAlī Qāsim al‑ʿAnsī (d. AD 1637)– are themselves protected, and the principle applies that what they are due is [also] due from them (mā la-hum ʿalay-hum): if they commit a fault, then payment is four-fold as it is for ”deliberate“ wrongs against them. The physical bounds of the hijrah place, meanwhile, are specified and apply to all.6

  • 7 The term ʿarḍ, or ʿirḍ, we discussed in general terms earlier. Again the Marino translation is slig (...)

4Any offence within a hijrah counts as shameful, and, as we saw in general terms earlier, “there is no intervening for others in cases of shameful action”. No-one can intervene for an offender as “neighbour of the house”, or “companion at oneʼs side”, or on account of eating together or any other form of protection (lā shayʼ min al‑ʿarḍ),7 and restitution is on the honour of the guarantors. These are very much the provisions we find in text 1 and elsewhere for markets, which also are hijrah or muhajjar: indeed in the present case, according to an amendment of AD 1851, responsibility for the hijrah devolves first on the “people of the month” (ahl al‑shahr, see part one, above) who guard al‑ʿInānʼs market. Hijrahs contrast with the general give and take of tribal morality. But they are far from being simply neutral in the sense of unmarked or unimportant. As with meetings among tribes and sections (text A section 10, text B section 10), or the market on market-day, the promise of unity, and for that matter peace, they embody is matched by a capacity to set men at odds if the peace is broken by one of those committed to uphold it.

  • 8 I am indebted to Ḥamīd b. ʿAskar Abū Asbaʿ of Āl Dumaynah for the story following. By his reckoning (...)
  • 9 For parallel phrases see Ḥabshūsh Ruʼyah pp. 35, 38, 54, 101, 131. The Wāʼilīʼs invocation of the m (...)
  • 10 There are several families or fractions with this name. Āl Qumlān are certainly found in Āl Amad b (...)

5Hādī b. Ḥasan, the ancestor of todayʼs Abū Aṣbaʿ family in Āl Dumaynah, is remembered as protagonist in such a case that involved the market.8 Raiders from Wāʼilah stole sheep being tended by Hādīʼs sister, and they took her with them to prevent her raising the alarm; when they let her go, unharmed, they took a silver band she was wearing on her upper arm. Hādī later saw a Wāʼilī at Dhū Muḥammadʼs market wearing the band and confronted him, but the Wāʼilī denied involvement in the sheep-raid and said he was safe in the security of God and of the market (āmin fī amān allāh wa-amān al‑sūq).9 He was there again the following week. On the third weekʼs market-day Hādī killed him on the road to al‑ʿInān and fled, taking refuge with Āl Qumlān of Dhū Zayd at Majzaʿ.10 The rest of Dhū Muḥammad demanded Hādīʼs blood for violating the market‑peace. Qumlān slaughtered a sheep on the mountain, letting the blood run downhill towards Sūq al‑ʿInān as if to imply they had killed Hādī and thus done their duty to the market-guarantors, when in fact he had moved on and taken refuge with Dhū Ḥusayn.

6Minor conflicts between Dhū Muḥammad and Dhū Ḥusayn at Baraṭ were inflamed by Hādī Ḥasan staying with Dhū Ḥusayn while Dhū Muḥammad, having found he was there, demanded his expulsion (Āl Qumlānʼs position after tricking the market-guarantors is not related), and when the two tribes one day convened at al‑­Baḥbāḥah, which itself was hijrah or protected, Hādī attended with Dhū Ḥusayn.

  • 11 Nāṣir b. Hādī is the eponym of a present-day fraction within Dhū Mūsā (see al‑Ḥajrī Buldān p. 109). (...)

7Provoked, Dhū Muḥammad launched a raid soon afterwards, and general war threatened. The dispute was settled, however, by Nāṣir b. Hādī Juzaylān of Dhū Mūsā.11 Nāṣir rose to the obligation about the market (qām bi-lāzim al‑sūq) and showered it with slaughter-beasts and silver, or as people say, “furnished” the market (farasha l-sūq), spread amends there as one would a carpet. He also paid blood-money for the dead man from Wāʼilah, and Hādī b. Ḥasan Abū Aṣbaʿ built his house near the border-line at al‑ Baḥbāḥah, where descendants of his still live.

  • 12 Hocart Kings and Councillors p. 256. Having cautioned against common-sense notions of religion, Hoc (...)
  • 13 Ḥabshūsh Ruʼyah pp. 53-5, Yémen 90-4. For the relevant divisions of Nihm, al‑Maqḥafī Muʿjam al‑buld (...)

8Plainly agreements were not always observed (Hādī, despite his own tribeʼs guaranty, killed a man on the road to market), and the way in which “custom” was restored or upheld was not rule-bound: Nāṣir Juzaylān, from a different fifth of Dhū Muḥammad, wipes the problem away with a grand gesture. But in stories of this kind, and indeed in the course of the everyday, markets are in some sense a sacred space. This is not to say there is anything “religious” about them: like the ancient Greek agora or the open area of a Fijian village the market was simply “the chief place in which men sought the all-round welfare of the tribe”.12 In fact a common anthropological recourse to “the sacred” needs here reversing. Rather than some extra­-societal reality valorizing singular events, and thus resolving within a conceptual whole the opposition of sets of people, it is precisely that opposition which gives to exceptional places and events their value. “Religion” (dīn) is separate question. The qāḍīs of Āl al‑ʿAnsī at Baraṭ, for instance, were associated with Islamic learning, and thus with a promise of moral certainty; but the value of religious persons can be very much that of markets, or indeed of a meeting-place denoted perhaps by no more than a cairn or tree. The point is illustrated by a story Ḥabshūsh gives from Nihm in the nineteenth century.13

  • 14 In general, and by some readings of jurisprudence as a rule, sayyids (descendants of the Prophet) d (...)
  • 15 It is hard to see how this fits the usual principle with hijrah families that “what is due them is (...)

9A tribesman from Nihm was married to a woman from a hijrah family (presumably, therefore, a qāḍī family rather than sayyids, but we are told no details),14 and the pair of them went to Ḥaḍūr, west of Ṣanʿāʼ, where the man was murdered. The wife was suspected of complicity. Back in Nihm she threw herself on the mercy of Banī Samḥ, one of Nihmʼs fractions. At a meeting on market-day a shaykh of Nihm suggested that were she innocent they should pay her the appropriate fraction of the blood-money and take vengeance from Ḥaḍūr; were she guilty, then apart from vengeance on Ḥaḍūr, “We shall kill her and take from her family, the hujar, what is due in law”.15 Banī Samḥʼs intervention to protect the woman, at the same meeting, threatened war among different parts of Nihm.

  • 16 abshūsh wrote his account two decades after the journey he describes (see Naïm-Sanbarʼs introducti (...)

10The leading shaykh of Banī Samḥ suggested asking the dead tribesmanʼs family to accept settlement (naṭlub al‑sinnah min ahl al‑maqtūl). The blood-money should be paid by the womanʼs father, he said, and Nihm should turn on Ḥaḍūr for vengeance.16 A second shaykh of Nihm, somehow related to the hijrah woman by marriage (we are told no more about him, unfortunately; it would be useful also to know which section of Nihm the dead tribesman came from), then makes the grand gesture, like Nāṣir Juzaylān in the Baraṭ story, stepping in on the accusedʼs behalf:

The blood money will be paid after twenty days”. At once, in the presence of [all] these people, he put down his rifle and its fittings to help the womanʼs father who had to pay blood-money to the dead manʼs heirs –and his dagger with its finery, and his sword with its finery, and his horse with its saddle. He said, “I have so-and-so many qadas of grain, and so-and-so-much clarified butter [a valuable commodity given at e.g. weddings], so-and-so-many cows, and so-and-so many dirhams“. When the gathering of tribes left the meeting-place he went to the house of the womanʼs hijrah father to help with the blood-debt, with dirhams and cattle and grain and weapons from his friends, and friends of friends, from acquaintances and acquaintances of acquaintances...

11This shaykh had said at the start that Nihm had a claim against Ḥaḍūr for revenge (qiṣāṣ) and blood-monies (dīyāt): note the plural and that multiple amends are in addition to, not instead of, vengeance. We are told by Ḥabshūsh at the end that, years later, Nihm had taken from Ḥaḍūr blood-money but the claim for vengeance stood. The hijrah family near the centre of the initial story simply fade from view.

  • 17 A fourth document in al‑Akwaʿʼs collection, concerning the related qāḍī family of Āl al‑ʿUkām and d (...)
  • 18 jāh al‑ qāḍī ʿalī māḍī, al‑Akwaʿ Madkhal p. 30, also ibid pp. 29, 42, 44. Alternatively, amr al‑qāḍ (...)
  • 19 al‑Akwaʿ Madkhal p. 46, Forteresses p. 15. For provisions on sharīʿah judgement, below, Madkhal pp. (...)

12The degree to which sacred space may be turned to “religion” (dīn) depends on the particular standing of those living there. Even then, Islamic law as such may not be the crux of their importance.17 But in al‑Akwaʿʼs Baraṭ documents the signatories commit themselves to uphold the sharīʿah wherever it is sought from Āl al‑ʿAnsī as a means of settlement, and a qāḍī who is “ordering the good and prohibiting what is reprehensible” (that is, promoting Islamic order) can apply punishments, even prison, without incurring retaliation: the honour or repute (jāh) of the qāḍīsʼ ancestor applies everywhere.18 A further pact from AD 1822 binds Āl Ṣalāḥ and al‑Maʿāṭirah specifically to the welfare of Aḥmad Ṣāliḥ Aḥmad al‑ʿAnsī. This, says the document, is quite separate from protection of the hijrah and applies to no-one else (lā yuqās bi-h ghayr-ah): all offences against Qadi Aḥmad personally or his dependants or, most importantly, against his judgement by sharīʿah law, are to be compensated four-fold after, or in addition to, vengeance or absolution (murabbaʿ baʿd al‑naqāʼ).19 More generally, however, the process or site (maqām, very roughly the “court”) of sharīʿah judgement by Āl al‑ʿAnsī is set aside and protected like the hijrah itself.

  • 20 lā tuqran bi-sharīʿah wa-lā yuqbal fī-hā maʿrūḍ, al‑Akwaʿ Madkhal p. 31. I doubt we can properly ta (...)

13Customary judgement of guaranty, protection, and amends is thus what allows its learned complement, Islamic law, to function. A line in the first of the al‑Akwaʿ texts seems to say not only that “intervention” to protect those who violate the hijrah is forbidden but that the agreement itself is “unconnected” to sharīʿah jurisdiction:20 the rules (qawāʿid) that establish protection have their own validity. Certainly the forms of reparation are not those envisaged in classical jurisprudence. In the same document, for instance, we find a horse being taken from the qāḍīs in AD 1749:

There came who came from our tribesmen of Dhū Muammad and took responsibility (ijāzū) for the guaranty within the pact after a fault (nuqah) was committed by al‑Shāmī, who had taken the horse. Naqīb Nājī and his tribesmen of Dhū Mūsā returned it, and returned the culprit, to the family of Qadi ʿAlī b. Qāsim. No obligation was confirmed against them [i.e. none had been accepted by them as regards the culprit], no escort, companionship or protection, accordingly as mentioned in the agreement. They gave all the judgements and slaughter-beasts for the hijrah, and all that covers the hujar [i.e. amends] to the family of Qadi ʿAlī b. Qāsim, and a slaughter-beast for the accusation and clothes that do not appear if an oath is taken...

14Plainly in this case the system of guaranty worked, for Nājī (Juzaylān?) brought al‑Shāmī to make amends, both of them being from Dhū Mūsā: the settlement was witnessed and approved by all Dhū Muḥammad, in whose joint name perhaps the kiswah or clothes were given. The details of the settlement, far less of the case itself, are not made clear. But the rule would seem to be multiple amends.

  • 21 The Arabic quotations following are from Madkhal pp. 30, 40. The first includes the difficult phras (...)

15Earlier we quoted the first of these documents to the effect that a fault in the hijrah be recompensed four-fold in slaughter-beasts and cloth, which includes, one imagines, the provision that a man who draws his weapon there pays four head of livestock. But “deliberate” wrong requires naqāʼ (absolution). Later we meet a different phrasing, focused less on the place than on the protected persons:21

وأن مَن فعل شئ مِن النكت او مِن الأمور الاتي لا تصلح في الهجرة او جانب اهلها... كانوا آل القاضي ثقة قول مَن قالوا هو الغريم هذا في المَهْمِي والمتّهم وأما ما ظهر فعند اهل الهجرة تربيعة ولا ينقيهم إلا نقاء

16In a second document, concerning a separate branch of Bayt al‑ʿAnsī, the context differs slightly but the phrasing is similar:

وإن ما جرى في الهجر مِن فعل او هّدة كانت بعيب (sic?)
وجيههم العقائر جزور حسب ما سيأتي ذكره... وما وقع في آل القاضي حسين بن قاسم او في أموالهم مِن أي القبل... كان في وجيه الضمناء العَمْدَة مربّعة والخاطية برأسا

  • 22 For parallels see text 1 (the market-guaranty) sections 10, 12 and 14, text A section 17. Where the (...)

17Briefly, faults within the hijrah require beasts and cloth unless deliberate, when the accused owes absolution (naqāʼ) in blood or money. Explicit wrongs that involve the īs themselves demand absolution four-fold, presumably with additional beasts and cloth, but the meaning is qualified in the last passage, and can fairly be read back to the first: it is “deliberate” action (ʿamd, ʿamdah) that requires four-fold amends (in effect, this is what absolution means here) while “error” requires merely compensation doubled, or perhaps only compensation.22 Apart from beasts and cloth one would pay for instance four times the wound-money if intent was not disproved.

Notes

1 We quoted earlier two chronicles of the early 18th century: Ḥusām al‑Dīn Tārīkh and al‑Wazīr’s Ṭabaq al‑alwā. Later one can draw on, for instance, al‑Ḥibshī’s Ḥawlīyāt yamānīyah. The late18th century, however, is not well covered, and the tarājim (biographical collections) have little to say of the tribal countryside at any date.

2 al‑Akwaʿ Madkhal (1995), Les Hiǧra et les forteresses du savoir au Yémen (B. Marino trans.), Cahiers du CFEY 2, (1996).

3 al‑Akwaʿ Madkhal p. 28, Forteresses p. 11. As explained in part one, above, Dhū ʿAmr here seem to be equivalent to Dhū Muammad: the undertakings are made in terms of the tribe’s five “fifths”.

4 The association of slaughter-beasts and clothes or cloth in amends of this sort recurs in the histories as well as in tribal documents, see e.g. al‑ibshī awlīyāt p. 282, al‑Sayāghī (ed.) Ṣafaḥāt p. 98, Ḥusayn al‑ʿAmrī: Miʼat ʿām min tārīkh al‑yaman (1988) p. 100. We shall meet it again in texts A and B. I have not found any rationale for the practice.

5 Here Marino has, I think, gone slightly astray translating as “Si la faute est involontaire, seul un homme intègre pourra accorder le pardon (Forteresses p. 11, also ibid. p. 12). The in the Arabic mā kāna ʿamd is not a negative particle but a relative pronoun.
The “absolution” mentioned here would not be simply slaughter-beasts or cloth but payment for the damage, itself perhaps multiplied by four, cf. al‑Akwaʿ Madkhal pp. 30, 41. Alternatively, in a serious case vengeance might be taken as naqāʼ and cash-multiples paid in addition. Interpretation is not made easier by al‑Akwaʿʼs punctuation, which I suspect divides the sentence wrongly and has here been omitted.

6 al‑Akwaʿ Madkhal p. 34, cf. ibid p. 40 for Hijrat al‑Saraʿah. For the principle that “what they are due is due from them” see ibid. pp. 30, 31, Forteresses p. 12, Dresch Tribes p. 144.

7 The term ʿarḍ, or ʿirḍ, we discussed in general terms earlier. Again the Marino translation is slightly inaccurate here, and the phrases lā yaḥawl ḥāʼil and lā shayʼmin al‑ʿarḍ seem to have been elided.

8 I am indebted to Ḥamīd b. ʿAskar Abū Asbaʿ of Āl Dumaynah for the story following. By his reckoning, his ancestor Hādī asan lived some nine or ten generations ago, which if the count means anything in practice, puts us somewhere in the 18th century.

9 For parallel phrases see Ḥabshūsh Ruʼyah pp. 35, 38, 54, 101, 131. The Wāʼilīʼs invocation of the market-peace is balanced, of course, by the wrong done Hādīʼs sister: two potential ʿaybs or shameful things are here opposed. What should ideally have happened is that Dhū Muḥammad rally to defend Hādīʼs sister.

10 There are several families or fractions with this name. Āl Qumlān are certainly found in Āl Amad b. Kawl: see al‑Ḥajrī Buldān p. 110, al‑Maqḥafī Muʿjam al‑buldān p. 1435, and Document 4 in part two, above. The Āl Qumlān family of Dhū Zayd appear in the list of signatories to text B (part six, below).

11 Nāṣir b. Hādī is the eponym of a present-day fraction within Dhū Mūsā (see al‑Ḥajrī Buldān p. 109). In the list of signatories to text B we find asan b. Nāṣir, quite possibly his son. “Just-so” stories of this kind are common in explaining, for instance, where people live.

12 Hocart Kings and Councillors p. 256. Having cautioned against common-sense notions of religion, Hocart himself then goes on to elaborate a cosmology of exactly that kind, constituting “society” as an active whole within which institutions gain their sense. I doubt very much that such holism works in most Middle Eastern cases.

13 Ḥabshūsh Ruʼyah pp. 53-5, Yémen 90-4. For the relevant divisions of Nihm, al‑Maqḥafī Muʿjam al‑buldān pp. 1770-1. From Ḥabshūshʼs account one might almost think Samḥ, whose shaykh intervenes below, to be a separate tribe, but in fact they form part of ʿIyāl Ghufayr in Nihm (al‑Ḥajrī Buldān p. 746).

14 In general, and by some readings of jurisprudence as a rule, sayyids (descendants of the Prophet) did not give wives to others. The non-sayyid “judges” or qāḍīs intermarried more freely with tribal families.

15 It is hard to see how this fits the usual principle with hijrah families that “what is due them is due from them” (mā la-hum ʿalay-hum, as discussed above) unless perhaps “what is due in law” represents multiples of blood-money in addition to the death. Killing a woman in revenge for a man is also singular. The multiple amends sought from aūr, below, are presumably for inviolability of territory (ḥurmat al‑waṭan).

16 abshūsh wrote his account two decades after the journey he describes (see Naïm-Sanbarʼs introduction to Yémen), but one must say the account rings true both as to the language of the tribesmen and as to the pattern of events.
The meeting at which this drama took place over a hijrah woman, and aūr killing a man from Nihm, was apparently convened to discuss a separate dispute with the neighbouring tribe of Banī Jubar in Khawlān. When the shaykh says “let us ask for the sinnah from the dead manʼs people in Nihm (i.e. ask that they accept compensation) it is so as not to have Nihm fragment in the face of Banī Jubarʼs aggression.

17 A fourth document in al‑Akwaʿʼs collection, concerning the related qāḍī family of Āl al‑ʿUkām and dating to AD 1890, makes no explicit mention of Islamic jurisdiction (Madkhal pp. 49-50, Forteresses p. 16). Nor does a slightly later (1903) hijrah for Āl al‑ʿUkām, although very unusually for a qāḍī family, it sets certain amends at eleven-fold, not four-fold, and thus marks them as of special importance (Dresch Tribes pp. 138-9). They may well have been scholars and in practice judges, but the provisions we shall see below for establishing Islamic law are nowhere mentioned.

18 jāh al‑ qāḍī ʿalī māḍī, al‑Akwaʿ Madkhal p. 30, also ibid pp. 29, 42, 44. Alternatively, amr al‑qāḍī ʿalī māḍī. The effective meaning seems to be that al‑ʿarḍ māḍī, the qāḍīʼs right to take responsibility for others is recognized.
The term punishment, in the line preceding, translates
taʼdīb (Madkhal pp. 42, 44), which Marino (Forteresses pp. 14, 15) glosses variously as châtiment corporel and as simply punir. The former seems to me unlikely, although it is not impossible. The same verb is used elsewhere in the documents to mean simply a fine.

19 al‑Akwaʿ Madkhal p. 46, Forteresses p. 15. For provisions on sharīʿah judgement, below, Madkhal pp. 31, 41, 44, 46-7.

20 lā tuqran bi-sharīʿah wa-lā yuqbal fī-hā maʿrūḍ, al‑Akwaʿ Madkhal p. 31. I doubt we can properly take this as meaning “ne sont pas comparablesʼ (Forteresses p. 12).
For the quotation following see
Madkhal p. 35, Forteresses pp. 12-13. The last line of the quotation is very obscure. It seems to imply that the kiswah or clothes mentioned earlier would be waived if an oath were received, perhaps to the effect that one were innocent; but the slaughter-beast is owed for any accusation (tuhmah). I have failed to find an explanation or a parallel elsewhere.

21 The Arabic quotations following are from Madkhal pp. 30, 40. The first includes the difficult phrase fī l-mahmī wa-l-muttaham. Al‑Akwaʿʼs suggestion that the second term means someone against whom no fault has (yet) been proved seems doubtful, cf. ibid. 28, 35; nor is his gloss of mahmī as khafī (hidden) at all certain. Indeed one wonders in context if it might not even be an active participle, “the accuser” as against “the accused”.

22 For parallels see text 1 (the market-guaranty) sections 10, 12 and 14, text A section 17. Where the al‑ʿAnsī hijrah document differentiates 4:1 intentional from non-intentional, the market-guaranty makes an exactly parallel differentiation according to whether restitution is made promptly or collective responsibility is flouted by delay. I strongly suspect one could swap the wording without any effect in ʿurf. “Deliberate” and “intentional”, as we shall see, do not refer primarily to presumed antecedent states of mind but to actions in the world.

© Centre français de recherche de la péninsule Arabique, 2006

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