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The rules of Barat. Tribal documents from Yemen

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Paul Dresch

Part 2. Customary law in context

Forms and degrees of truth

Entrées d'index

Mots clés :

qādī

Keywords :

qadi

Texte intégral

1Even in Islamic law the notion of “intent” or ʿamd is not that of English or American court-proceedings. In sharīʿah it largely depends, as it can do in custom, not formally on premeditation, but on the nature of the weapon used. In custom it will often determine what amends are due, as for instance in text B section 2 (part six, below) where if oaths establish lack of intent then harm to a woman is paid two-fold, but otherwise is paid four-fold; in text B section 4 it seems to determine if amends are acceptable at all. Violating the bond of “the bread and the salt” requires simply compensation if oaths show it was done “in error” but additional amends in case of ʿamd (text A section 17: part five, below). Again, where oaths say the act was unintentional, “whoever owes shawfah [amends for offences against women] to the neighbouring tribes..., Dhū Muḥammad as a whole are responsible [for paying] ...” (text A section 9). Otherwise, one presumes, the culprit is on his own, and the rule would apply that “there is no intervening in cases of shameful action”. The very nature of the offence is defined by oath.

  • 1 al‑Akwaʿ Madkhal pp. 30, 44, 47. Parallels with early Europe come to mind where for instance in the (...)
  • 2 Cf. Rossi ʻDirittoʼ p. 5, Abū Ghānim Bunyah qabalīyah p. 371.
  • 3 Multiple oath of course is the Islamic qasāmah. Although largely ignored by textualists, it appears (...)

2Men may swear individually to their own actions and also to the wrongs done them. In particular cases the latter kind of testimony requires no support. A person robbed on the way to market, for example, is to be believed (text 1 section 9), as too is a “weak” person wronged by tribesmen (text B sections 30, 44); on the other hand, an arbitrator is a trusted witness as to wrongs done at arbitration (text B section 15), and so is a protected qāḍī as to wrongs done himself, his peace, or property.1 In other cases, multiple testimony may be sought on points of supposed fact: five men from each side, chosen by the other party, must swear to where disputed borders run for instance (text B section 32). But a common formula in ʿurf is ʿalā l-muddaʿī al‑bayyān (or al‑ʿinwā) wa-ʿalā l-munkir (or al‑mujḥid) al‑yamīn,2 meaning the plaintiff makes his claim and the (specific) defendant must swear, if he wishes, to his innocence. Often this seemingly individual “debt” (dayn) itself involves compurgation, or collective oath, which assigns both intent and responsibility, as well as establishing points of fact or whether an obligation has been discharged.3 Forty‑four oaths are required in case of killing, twenty-two in other cases.

  • 4 In Islamic law this centres very much on the individual –is he, or is he not, an honest man? In cus (...)
  • 5 The term ʿamd overlaps in tribal usage with qaṣd. The latter term itself overlaps with nīyah (for a (...)
  • 6 There is a general reluctance, even among those who know themselves innocent, to take what might be (...)

3The oath-takers do not have to have seen what happened. To describe them as “character witnesses” may mislead, however: their relation with the man accused is more intimate than the phrase implies. For example if someone is killed in a fight between two fifths of Dhū Muḥammad, and the killerʼs fifth claim not to know who specifically was responsible, then all of them might swear to that effect and then bear responsibility together (text B section 34). Swearing to an individualʼs action, though he alone is accused, involves as close a moral identity. A witness must himself be, so to speak, “oath-worthy”,4 but his judgement implies willingness to align himself before others with the person accused, and does not reduce to either dispassion or self‑interest. To swear that an action was or was not “intentional” (bi-l-ʿamd or qaṣd, maqṣūd, as oppose to khaṭaʼ or bi‑ghayr al‑ʿamd) is usually to judge whether the accused deserves recognition: whether, indeed, he has sinnah, the general right to give or take protection. It decides, in effect, if his action can be acknowledged in public claims and thus how the case unfolds.5 The truth-value accorded these proceedings is high, and failure to secure collective oath is explained by saying the defendant or his fellow tribesmen do not dare lie because they fear God (yakhāf min allāh).6

  • 7 Ḥabshūsh Ruʼyah p. 39. Naïm-Sanbar (Yémen p. 72) gives protecteur de lʼoffense, but “error”, I thin (...)
  • 8 This will be mis-read by some as if I were claiming that what actually occurs does not matter. That (...)

4Protected places and persons, as much as quasi-contractual “links”, are a crux of moral values. How well men could agree on specific cases is a separate question, for reputation (sumʿah) may fragment indefinitely with each man or section claiming right against the others. “Weak” people such as Jews for instance were individually protected, and there was supposed, in eastern Yemen at the time Ḥabshūsh was there (circa 1870), to be a second protector, the “neighbour of the error” (jār al‑ghawā)7 who if the first protector defaulted on his obligation or wronged the protégé, would demand from him heavy amends. “Most often,” says Ḥabshūsh, doubtless justifiably, “they [just] get involved in killing and fighting [each other], quite apart from the losses suffered. Such is the law (sharʿ) of Yemenʼs tribes”. An anthropologistʼs concern, however, particularly when dealing with limited records of the past, must be less with the course of events than, first, with the type of events conceivable.8

5As with the case of markets and of learned hijrahs, so with protected persons, be they women, “weak” people or the learned, the point of insertion in tribal values is asymmetrical protection and thus the commitment of tribal honour. Beyond this the cases differ. Again let us quote from a recent Sufyānī document, dated AD 1965:

  • 9 The term translated here as sheep is jalabah, which looks as if it could as easily mean an item of (...)

The neighbour (jār, protected person), if someone offends against him then he is due a sheep and clothes9 ... If a man attacks a woman by striking her then she is due amends for tashwīf, a hundred and ten riyāls and a sheep. If a man strikes his wife at home he must pay [to her paternal kin] a sheep in judgement, and [to her] clothes. If he is in her guardianʼs house and has not complained [to her guardian of her behaviour], he owes a bullock (tabīʿ) and one hundred and ten [riyāls] and clothes.

  • 10 al‑Akwaʿ Madkhal p. 46, Forteresses p. 15. Again this is a difficult passage. Marino says “Il sera (...)

6In minor wrongs, the amends due to women vary with situation or structural distance; they do not for protected men (cf. the discussion of jīrān as a collective concern, earlier). But amends for more serious wrongs are in both cases four-fold, as they also are for protected īs whose position is associated with the promise of learned certainty. Unlike a woman or a weak person, however, the ī himself has ʿar or sinnah, in other words he can shelter or protect others. Hence a reference in Qadi Amad’s document (AD 1822):10

وكان مجلل محترم مهجر على قاضي وقبيلي هو ما يلوذ ويعوره وماله ورسله وعياله وما يعيرهم مربّع بعد النقا وموقفه مجلل محترم

He will be honoured, respected, and protected by ī and tribesman [alike]. Whatever is guarded by him or concerns his honour [more specifically, his family affairs], and his property, and messengers, and children, and whatever might shame them, is [to be recompensed] four-fold after absolution. His presence (mawqif-hu, i.e. the meetings or sittings he convenes to administer justice) are honoured and respected.

  • 11 In other words, no-one may act to shelter a person from the qāḍī’s judgement by providing refuge or (...)

7The ī, like the tribesman, has his own domain of “things worth protecting” ( ʿurr or muʿawwarāt). More than this, his messenger, in all these agreements, is secure wherever he goes, even if involved in other disputes; and though the ī himself has neighbour‑right (jīrah) if acting justly, none may invoke such rights at his expense.11 The qāḍī’s rights of protection, accorded by the tribesmen, thus seem to exceed, and sometimes contain, those of tribesmen themselves. Even unseemly speech at his expense (kalām mā yalīq) is inadmissible. This sounds very much like authority, yet plainly it had limits, for no lasting political hierarchy emerges.

  • 12 al‑Akwaʿ Madkhal p. 47. The Imam in question can hardly be the anʿāʼ-based al‑Mahdī ʿAbdullāh, who (...)
  • 13 This returns us to the letter of the law, and if the logic of ʿurf or custom” is sometimes hard to (...)

8In Qadi Aḥmadʼs personal hijrah-document (1822), those who dissent from his judgement by sharīʿah are referred to the Imamʼs court (diwān al‑imām), “and what comes from the Imamʼs court applies [or should be relied on]”.12 Presumably when a powerful Imam controlled Baraṭ, which happened in the twentieth century, sharīʿah judges, appointed or confirmed by the centralizing ruler, monopolized the more serious areas of justice.13 Before that, however, we find al‑Mahdī Muḥammad, in 1897, merely counter-signing a hijrah-pact as might a notary public. Power (from an Imamʼs view, perhaps, righteous order) comes and goes with external circumstance. Throughout the period, and indeed for a great deal longer, we seem to have evidence of what might be thought of as resting state of the system, whereby “customary” law sometimes empowers sharīʿah jurisdiction and at other times compensates its absence. The possibilities are spread among a great many kinds of document.

  • 14 One should note that such shaykhs or nuqabāʼ at all dates appear also as copyists.
    Though few shaykh
    (...)
  • 15 For the concerns of a great 19th century magnate from Dhū Muḥammad, linking the two poles of Upper (...)
  • 16 Not all shaykhs or even all nuqabāʼ are hijrah, and few have ever been hijrah from more than their (...)
  • 17 The plaint here, for 13,000 riyāls, is from Naqīb ʿAlī ʿAbdullāh al‑Shāyif presumably the same man (...)

9Despite their obvious importance at the period, the qāḍīs of Bayt al‑ʿAnsī get no mention in Baraṭʼs main qawāʿid (texts A and B: parts five and six below), save that one of them appears as witness and others as copyists. Nor do chiefs (mashāyikh, nuqabāʼ, such as Āl Juzaylān or the Āl Abū Raʼs whom we touched on in parts one and two, receive mention except as witnesses and guarantors.14 In their way, they must have been at least as important as the Baraṭ qāḍīs. It was they who would have raised troops against or in support of this Imam and that, they who would have taken the major payments from such powerful figures, and they, not least, who gained extensive land in western and southern Yemen.15 It was external wealth that allowed the “grand gestures” we touched on earlier, resolving the impasses of internal tribal rivalry. Some shaykhs at Baraṭ, not always the most powerful, were hijrah or muhajjar like the qāḍīs: an offence against or by them would have been compensated four-fold, and their status expressed in further pacts.16 The greatest of shaykhs, to judge from Document 9 (this concerns the al‑ʿAnsīs and the leaders of Dhū Ḥusayn), disputed large sums of tax with their qāḍī allies.17

Document 8: Bayt al‑Shāyif and Bayt al‑ʿAnsī (1227–31/1812–16)

Document 8: Bayt al‑Shāyif and Bayt al‑ʿAnsī (1227–31/1812–16)
  • 18 No document is an innocent source of anything. Wormald shows brilliantly for early European history (...)
  • 19 B. Messick The Calligraphic State p. 217.

10In brief, anyone set of documents, let alone a single text, provides a very partial view of society at a given date. Each might at best give a slice of reality. Nonetheless, the parties who agreed and in some degree upheld the singular status of “judges”, of shaykhs, servitors, the hijrahs or the market, were tribesmen, whose own assumptions about the nature of truth and responsibility provided points of insertion for othersʼ views. What “contextual strata” might locate our documents are largely guess-work.18 Written pacts are not routinely quoted in judgement, though as we saw with al‑Shāmīʼs horse, they are sometimes invoked explicitly; nor are they as “public” as the edicts of kings. But, as Messick says with Ibb primarily in mind, “It would be difficult to overstate the high regard ordinary Yemenis have for legal documents”.19 This is a society in which committing collective decisions and positions to scrolls of paper was commonplace, and even individual guaranty at Baraṭ might equally be proved by witnesses or by documentary evidence (text A section 13).

11Separating genres of document would for most purposes not be helfpul. Political history of the kind sketched in part two shows how misleading it would also be to separate shaykhs, tribesmen, and qāḍīs. The preambles to documents of most sorts show that tribesmen thought themselves to be doing Godʼs work as much as did their scholarly neighbours or opponents, though the promise of “Islamic” unity which the learned offered was always powerful. But the documents al‑Akwaʿ presents and those presented here do show, apart from unity of style, a certain unity of assumption about status, recompense, and social order. They are plainly expressions of the same society. In the nature of the case, admittedly, most of our evidence will result from breaches, whether real or imagined, of some ideal order.

  • 20 The best effort in this direction is still J. Comaroff and R. Roberts Rules and Processes: the cult (...)

12To read off from rules to what happens, as many anthropologists used to do elsewhere, is naive. To ignore the rules in pursuit of supposed “practice”, as many would now do, is equally unhelpful, for the analystʼs native common-sense simply fills the gaps left by lack of thought.20 What law of any kind provides is a clue to local categories, to the usually unstated assumptions or principles that inform what people do and that define in effect who they are. (Not for nothing, though in some ways naively, did the Année Sociologique school pursue droit et morale as a key to social analysis). Even an abstract treatise may thus be useful. A pact or treaty has its own more immediate concerns but will often show, as disputes and judgements do also, a layering of implication that isolated lines or paragraphs make appear as contradictions. To quote a rather tangential authority (Louis Althusser), “Cʼest là que lʼexception se découvre la règle, la règle de la règle, et cʼest alors à partir de la nouvelle règle quʼil faut penser les anciennes ʽexceptionsʼ...” Besides listing individual laws, therefore, we should follow through the main implications. Let us concentrate on the larger qawāʿid, text B, dated 1211 hijrī (AD 1796). What should emerge, in the nature of a pact like this, is a preliminary map of the moral system.

Notes

1 al‑Akwaʿ Madkhal pp. 30, 44, 47. Parallels with early Europe come to mind where for instance in the laws of Wihtraed the testimony of priests is self-sufficient, but lesser clergy and lay-persons require “oath-helpers” (Whitelock English Historical Documents p. 398).
Throughout the Yemeni material such terms are used as
yaḥlaf and yamīn, but the verbs yuthabbit and yunajjid also refer to sworn testimony: there seems not to be any difference of meaning, in any of these cases, between yamīn and dayn. Testimony that requires no support is referred to by means of the word thiqah and by qawl maqbūl.

2 Cf. Rossi ʻDirittoʼ p. 5, Abū Ghānim Bunyah qabalīyah p. 371.

3 Multiple oath of course is the Islamic qasāmah. Although largely ignored by textualists, it appears to have been common among tribes in the Arab world: see e.g. Serjeant ʻDawlahʼ, Murray Sons of Ishmael p. 231-2, 316. Around Bara such oaths are called simply aymān, and the word qasāmah (which, literally, might imply “dividing up”) seems on occasion to be a synonym for gharāmah, the collective responsibility of cash-payment.

4 In Islamic law this centres very much on the individual –is he, or is he not, an honest man? In custom, where discussion of the subject is formalized at all, it seems also to have depended on arms‑bearing status: Serjeant ʻDawlahʼ p. 148, Abū Ghānim Bunyah qabalīyah p. 373.

5 The term ʿamd overlaps in tribal usage with qaṣd. The latter term itself overlaps with nīyah (for a quasi-philosophical discussion of the latter in jurisprudence see B. Messick, Indexing the self, Islamic Law and Society vol. 8/2, 2001). But ʿamd and nīyah do not overlap, the former being very much a legal” term in tribal usage and the latter referring to a presumed internal state, a state of “conscience” or ḍamīr.
For a good account of “intention” in a parallel system of non-state law see Miller Bloodtaking pp. 53, 63-7. The difficulty of phrasing such material in English derives almost solely from the bizarre pretention in modern Western jurisprudence that actions derive from something like forethought: increasingly, it seems, the equivalent of slaughtering bulls at market is a ritual of personal contrition and thus redemption.

6 There is a general reluctance, even among those who know themselves innocent, to take what might be described as unnecessary oaths. Committing oneʼs honour like this is not done lightly. But it also true that stories of false oaths often mention how the oath-takerʼs descendants were cursed with ill‑fortune or how his line died out.

7 Ḥabshūsh Ruʼyah p. 39. Naïm-Sanbar (Yémen p. 72) gives protecteur de lʼoffense, but “error”, I think, is more the meaning here than “insult”. See e.g. Ruʼyah p. 54, where ghawā is the antonym of ḥaqq.

8 This will be mis-read by some as if I were claiming that what actually occurs does not matter. That is not what I have said. Until we can grasp, at least provisionally, the local distinctions among different types of person and among different types of situation, “what actually occurs” is a chimera.

9 The term translated here as sheep is jalabah, which looks as if it could as easily mean an item of clothing, and it is common enough to give e.g. kiswah wa-ṣabīghah, meaning a garment and a head‑cloth. But the meaning is not in doubt, and often jalabah is used to mean specifically a ewe (al‑Iryānī Muʿjam al‑lughah p. 147). The passages on the jār and on women are given in reverse order.

10 al‑Akwaʿ Madkhal p. 46, Forteresses p. 15. Again this is a difficult passage. Marino says “Il sera considéré, respecté et protégé, de même que les gens qui se rendront auprès de lui et leurs familles, corps et biens”. It is entirely possible that al‑qabīlī huw mā yalūdh means someone taking protection, but mā yalūdh appears in an earlier document (Madkhal p. 30) with what looks to be a broader meaning and the string of singular pronominal suffixes (including “his messengers”) surely refers here to Qadi Amad, not his protégés. Marino’s reading would be more likely if the text read al‑qabīlī man huwa... For the points made after the quotation see Madkhal pp. 29, 30, 31, 41.

11 In other words, no-one may act to shelter a person from the qāḍī’s judgement by providing refuge or escort. The ī, however, can claim protection in the event of disputes with others.

12 al‑Akwaʿ Madkhal p. 47. The Imam in question can hardly be the anʿāʼ-based al‑Mahdī ʿAbdullāh, whom the tribes seem generally to have disliked. It may perhaps be Ismāʿīl al‑Kibsī (al‑Mutawakkil), who several times tried to raise the tribes of Bara: see Haykel Revival and Reform p. 180. For the reference to al‑Mahdī Muḥammad, later, Madkhal p. 38.

13 This returns us to the letter of the law, and if the logic of ʿurf or custom” is sometimes hard to recover, that of sharīʿah is no less so. Thus, when asan Qāyid Abū Raʼs in Lower Yemen was killed by the Turks in 1917 Imam Yayā imposed a “heavy dīyah (al‑Yāzilī al‑Thawrah al‑bikr p. 71). Sensible and just though the ruling may have been, one is left to wonder what the phrase meant in formal jurisprudence.

14 One should note that such shaykhs or nuqabāʼ at all dates appear also as copyists.
Though few shaykhs would have made claims to formal learning, we should be wary of supposed divisions of labour between
learned” fuqahā or qāḍīs and “political” shaykhs. Some of the latter, by the standards of the day, were evidently quite highly educated.

15 For the concerns of a great 19th century magnate from Dhū Muḥammad, linking the two poles of Upper and Lower Yemen, see the will or testament of Qāyid Ḥusayn Abū Raʼs reproduced in al‑Yāzilī al‑Thawrah al‑bikr p. 43.

16 Not all shaykhs or even all nuqabāʼ are hijrah, and few have ever been hijrah from more than their own “fifth”. For a brief list of which major families have such status with whom at Bara see Dresch Tribes p. 105.

17 The plaint here, for 13,000 riyāls, is from Naqīb ʿAlī ʿAbdullāh al‑Shāyif presumably the same man as fell foul a few years later of the Imam al‑Mahdī ʿAbdullāh Amad and was executed in anʿāʼ: Jaḥḥāf Ḥawlīyāt al‑muʼarrikh (al‑ʿAmrī ed. 1998) pp. 93, 99.

18 No document is an innocent source of anything. Wormald shows brilliantly for early European history “that ʻlaw-codesʼ are themselves... a contextual stratum” to be analysed as such: P. Wormald The Making of English Law (200 1) p. 264, also Wormald Legal Culture in the Early Medieval West (1999). In Yemen there was plainly no “Rome” to imitate, nor was there quite a “church”. But the value of composing and then possessing such texts as A and B deserves study apart from their detailed content.

19 B. Messick The Calligraphic State p. 217.

20 The best effort in this direction is still J. Comaroff and R. Roberts Rules and Processes: the cultural logic of dispute in an African context (1981), which attempts at least to deal structurally with “context”. But much similar work requires what Mark Hobart in a different connection calls “an antic theory of the person”. The problem has intensified with anthropologistsʼ fascination with e.g. human rights: S.F. Moore, Fifty turbulent years of legal anthropology, 194999, Journal of the Royal Anthropological Institute vol. 7 (2001). The human world is reduced to an inadequate reflection of bureaucracies in Washington or Brussels; and, while lawyers write much of interest to anthropologists, legal anthropology in its classical form is now moribund.

Table des illustrations

Titre Document 8: Bayt al‑Shāyif and Bayt al‑ʿAnsī (1227–31/1812–16)
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