Non-State Law: Early Yemen and Perpetual Peace, by Paul Dresch
Obligations of rule enforcement in tribal Yemen: e.g. an obligation to violence, as a law, applies to the protector personally not to a higher power
Paul Dresch wrote:
Chapter 4
Aspects of Non-State Law: Early Yemen and Perpetual Peace
INTRODUCTION
… Law works ‘top down’. By contrast, many forms of law (some centralized, some not) appear to start from an idea of mutual recognition, so that law works ‘sideways’ and concerns not least the validity of people shielding their fellows from the wrath of others. Where people, collectively or as persons, are defended both by and against their fellows, even centralizing systems begin not from an identity of rights and top-down authority (a communal ‘peace’) but from what can be called ‘protection’. The theme of protection now informs work on early England. It runs through Middle Eastern material also, where the names and the dates may be less familiar, and one suspects it may be of wider relevance. …
THE LAWS OF THE TRIBES
A Persian visitor to Yemen, c. AD 1200, describes how ‘all the Arabs of these parts, in the mountains and lowlands’, disliked adjudication by Islamic law and preferred instead ḥukm al-manʿ (Ibn al-Mujāwir 1996), a phrase that recurs in the titles of manuscripts collected by Ettore Rossi, the earliest date on which is 1649 but much of whose substance is plainly older, and of a work found in ʿaḍramawṭ by R. B. Serjeant which dates to about 1400.
Ḥukm (pl. aḥkām) means judgement; to gloss it as law is often fair in context. Manʿ, the other half of the phrase, is not standard Arabic in the sense apparent. What it denotes in this Yemeni material, however, is a capacity to protect or defend, and our texts on ahkām al-manʿ—very roughly indeed, ‘the laws of protection’ (cf. Schacht 1964: 77)—deal conspicuously with escort, refuge, and hospitality. Such law was ʿurf, or custom. It is not obliterated, despite Zaydi accounts in particular which depict tribal law as un-Islamic, thus subject to repeated jihād …
… All these texts—treatises, really—begin with protection (jiwār, a term that might suggest ‘neighbour-right’; jār can mean neighbour or protégé), and they explain first of all how a wrong against the person protected by the one protecting them is a disgrace that requires the erring protector to pay his protégé amends (naṣaf) as well as compensation for the physical harm or loss. The asymmetry of protégé and protector is basic. (So, too, we shall see later on, is the distinction between compensation and amends). Meanwhile the protector must right those wrongs done his protégé by third parties, an obligation set out, like the others, in legalistic form:
If something befalls the protected person (jār) from those he fears or those against whom he sought protection, the protector (mujawwir) must act [or retaliate] on his protection to the extent of the loss suffered. If it is limited, not absolute, protection, the limitations are of two sorts. It may be limitation of his protection to a specific place and applied to a particular tribe. Similarly he may give protection for a known period … If the incident is from some other tribe or after the period ends or elsewhere than the place specified, the protector is in no way liable (Rossi n.d.: 2, cf. Serjeant n.d. (a): 13).
The protector must be of tribal standing. The person protected may be of the same standing or may be a non-tribal dependent unable to give protection themselves. Where protection is recognized as binding and a wrong is done the protégé, of whatever status, by a third party, then apart from compensation (such as wound-money or the value of goods) due the protégé from he who wrongs him, which the protector must obtain for the protégé and pass on, the protector is due from the wrongdoer amends usually of the same amount, and in some cases amends are due for breach of protection though no physical harm is done. A parallel with certain English ideas of trespass is evident. The principle that one owes amends for breaching one’s own protection as well as for breaching that of another man is more distinctive and equally is part of law.
Kitāb al-tabyīn and the photocopy text published by Abū Ghānim, which mentions a jurist named Bin Zinbāʿ, explain almost word for word how an escort who deserts his companion (that is, his temporary protégé) is liable for what befalls him at the hands of others and thus to pay him amends as well as compensation. They differ in details. They agree, however, that liability derives from contract (ʿaqd) and that it has limits, determined (as throughout this corpus) with some care. Brief quotations on escort from three different texts will illustrate the form of the laws more generally:
If a man escorts two enemies together, he is in no way liable for what one does to the other after they are loose (ṭalqān, i.e. they have left his protection). If he gives escort to one before the other, he only contracts escort with the second on condition that he [the second man] is constrained in his actions (makfūf al-fiʿāl) … (Serjeant n.d. (a): 31).
They say that if the first wrongs the other then his escort is shamed, the word is against him and his name is blackened (lahaqa-hu al-kalām wa-l-dukhkhān). If the other wrongs the first after the condition is offered, … the shame [thus the liability for amends] is on the wrongdoer among them, not the escort (Rossi n.d.: 21).
Whoever seeks escort on account of debt and meets the creditor, if [the latter] seizes him then he [the angry creditor] owes the escort amends (naṣaf) if he is in the escort’s territory. If he is in the creditor’s territory, the escort does not owe anything [to his protégé] nor does the creditor owe [amends to the escort] (Serjeant n.d. (b): 15, Abū Ghānim 1985: 381).
… If there is a killing he [the protector, or mujawwir; here the escort] must act [or retaliate] until he kills in return and kills one like him—a free-man for a free-man or a slave for a slave—unless the dead man’s heirs choose blood-money. He must seize it [from the culprits] and pass the blood-money to the heirs. If [the travelling companion under escort] was wounded or threatened or terrorized, the escort gets absolution for his companion by raiding the culprit. The least raid is a half-day’s war (Rossi n.d.: 18, cf. Serjeant n.d. (a): 26–7).
… The obligation to violence, set out as a law, applies to the protector personally (and behind him his kin unless they disown him), not to a community or a higher power; nor is failure to act censured by such a power, but instead the defaulter has ‘the word against him’ among persons and tribes at large. The point to underline is simple. This is not just ‘the order of custom’ (Stanley Diamond 1971 article), or of undifferentiated ‘justice’, but of stated rules, of Gesetze [legislation] as much as Recht [right], in the absence of overarching sovereignty and thus of a history taken often too much for granted. …
… Whoever rebukes a man or curses him when he does not deserve it, or curses or vilifies his parents, owes amends according to the amount of honour (qadr sharaf) of the one vilified. If he is one of the chief people (ru’asā’) or the people of religion and piety, the amends are heavier. If the one vilified is a lowly person … there is a light punishment (ta’dīb khafīf) in accord with what the arbitrator/judge decides (Rossi n.d.: 60, cf. Abū Ghānim 1985: 378).
The amends here are not specified (no more is ‘the amount of honour’) but instead are a matter of discretion. A similar glissando of worth is apparent in bridewealth, thus in certain wrongs against women. But ahl al-manʿ, people who can give protection, which means in the first instance men of tribal standing (including the ‘chief people’), are legal equals in that the same forms of obligation are applicable to all and the same amends (‘doubling’ of compensation, for instance) are owed in each case for breach of these. This too is a point that deserves noting. …
… Ḥukm al-manʿ presents a contrast, for rightful coercion is exercised by independent persons and sets of persons. People thus move in and out of each others’ spaces in sometimes surprising ways, for example when one man hires another’s services:
Know that the law of the hired man (al-ajīr) is the law of the guest in what he is due and what is due from him while he is hired. If the hired man gives refuge or escort or hospitality and something befalls his protégé or companion or guest, then the man who hires him (al-musta’ajir) must act to remedy this … even to the extent of vengeance (Abū Ghānim 1985: 370, cf. Rossi n.d.: 46).
The hired man himself has the capacity to protect, to take in guests, for instance; a person who wronged the guest would owe the guest compensation and owe the hired man amends. If I wronged a man I hired, I would owe him compensation and amends together, for he is in my care. But as the man who hires him I also acquire the obligation to act in his support if his protégé is wronged, and theoretically the relation between us might be reversed, the matter of rules which determine whose obligations and rights are at issue where and thus who is owed amends for what. These amends, as we have seen, are called naṣaf (pl. anṣāf), a word that elsewhere would serve well for Recht. We seem to have two radically different notions of what ‘right’ may be, in fact, one founded on reparation—and, we should note, protection, the other on binding community. …
… Unlike kinship in ‘the family of nations’, the image of genealogy among Arabia’s tribes admits of endless subdivision (right down to at least the household), as well as indefinite extension; in short, there is no bounded community. Custom, meanwhile, requires no collective will. But the point of law, also, differs from that of submission to a common good. The outcome of arbitration ideally is instead separation of those at odds, the return to a status quo ante where a ‘legal culture’ is shared, and hence recognition of others’ rights (the acceptance that such moral entities exist as families and tribes, for instance), but no common power.
The feeling this should lead to less precise rules than do ‘unicentric’ systems is not borne out. If we have laws (Gesetze), then, as plainly we do, without Law in the grand sense of communal Recht, we should ask what they could have meant and unpack at least part of the logic that informs these rules. …
VIOLENCE AND LEGALITY IN TRIBAL LAW
The law of protection is an archetype in Waldron’s sense. The couple protégé/protector (jār and mujawwir) may describe other pairs such as companion and escort, or guest and host. The centrality of the idea is meanwhile apparent in the fact that mortal breach of protection is the sole case in ḥukm al-manʿ where execution by one’s fellows is specified, as distinct from the exchange of vengeance. To murder one’s guest or the person to whom one gave escort is an ultimate wrong and, unless the offender immolates himself,
there is no means of absolution (naqā) for him, and if his kin do not kill him then they themselves are covered with disgrace (iʿtābū) and become dishonoured (Ettore Rossi 1948 article).
They lose their manʿ, the right to protect that amounts to full legal status. That status underpins other obligations, whether directional (e.g. refuge) or balanced (e.g. sworn alliance), and forming such obligations requires symmetrical recognition among those of tribal standing of the right to coerce in a just cause. The archetype itself, however, is asymmetric. …
… The protector who wrongs his protégé short of homicide owes him amends as well as compensation for material harm; the protégé who wrongs his protector owes only compensation. The protector cannot act to secure even this, however, until he severs the tie by testifying publically at a meeting or at market on market day:
If the protégé wrongs his protector … and refuses to pay what is due, the protector testifies against him that he declined to pay what was due and accords him time to move away with all he has. When [the wrongdoer] leaves his protection he seeks his due from him as he would from anyone (Rossi n.d.: 9).
As with the case of the hired man, above, ‘what is due’ may be complex. It may derive for example from a passing instance of authority over others, who might owe amends as well as compensation among themselves. The relationship with the protector nonetheless requires formal severance:
If a protector has several protégés and some wrong others, … he puts them in some other village and sets for them a border in his [own] territory where they may not go … If they commit aggression after that … and the protégé does not pay [what is due for this fresh offence] of whatever kind—amends (naṣaf) or otherwise—he [the protector] testifies against him on four occasions through a whole month, once every eight days [i.e. once a week], then accords him a period and orders him to leave him and go away … If the protégé declined all that, after the four occasions, he is in a state like war and the protector is free as regards what was done against him (cf. Abū Ghānim 1985: 366).
To act against the (erstwhile) protégé before the tie is severed threatens loss of manʿ, because the protector has, as the texts say, ‘committed himself’ (awkana, or awkada, bi-nafsi-hi), thus placing at stake his moral worth. Deliberately to wrong one’s protégé comes close to self-contradiction. …
Further still, whole sets of people are implicated and collectivities themselves are bound by law such that tribal territory, for instance, implies more than resistance to collective attack:
Know that it is a duty on people to guard their homelands and not leave anyone to commit an offence there by right or falsely. The sanctity of territory (ḥaram al-balad) is of two kinds, against an enemy and against other than an enemy. Sanctity against other than an enemy [means] the people of a territory must act [or retaliate] to the extent of their ability. The word is against them and they lose their manʿah until they act (cf. Abū Ghānim 1985: 371).
In other words, if someone from B wrongs someone from C in the territory of tribe A, it is A’s responsibility collectively to extract reparation and pass it to those wronged; meanwhile the wrongdoers from B owe amends to A for breaching A’s protection (Serjeant n.d. (a): 77). This much, though mediated by explicit ideas of honour, is compatible with familiar concepts of sovereignty and comity. However, tribes, unlike principalities or republics, are neither legal persons nor structures of command and in no way monopolize the assessment of right and wrong.
Legally and morally, not just as contingent fact, one can usually opt out of confrontation. What one cannot do is deliberately, or knowingly, violate commitments of manʿ made by agnatic kin (any more than violate one’s own), for a shared ‘ancestral’ name means shared honour. There is practical room for error. The tie of escort for instance may be marked by a weapon or an article of clothing instead of the protector’s presence, and knowledge of the tie would be tested by oath. Let us reverse here the order of two passages from Kitāb al-tabyīn:
If the escort’s relatives wrong the one escorted in ignorance and not deliberately … they owe [only] compensation for the harm done and according to their oath that they did not know … If they do not [or cannot] avow this they are covered in disgrace (muʿtābīn) (Rossi n.d.: 19).
This means, again, that they lose their manʿ, their capacity to offer lawful protection. So might their fellows in the tribe unless amends are made, and in case of mortal wrong (‘black shame’) there is only one means of absolution:
If the escort’s relatives wrong the one escorted deliberately, they are dughmān (pl. of adgham), and the whole tribe (kāfat al-qabīl) must kill the dughmān or hand the killers over to the heirs of the dead man … (cf. Serjeant n.d. (a): 27).
But no definition is given of the ‘whole tribe’ who should turn on the offenders, and in effect no definition can be given. A tribe claims loosely a common ancestry, and such a claim may be made both higher and lower in the scheme of genealogy to invoke a larger or a smaller identity; all but endless subdivision is therefore possible as one set of people declares others to be outlaws (dughmān), and their neighbours (in a very loose sense, their agnatic ‘kin’) perhaps disagree, making ‘functional’ explanations hopeless. The rules, nonetheless, define what is right and wrong. More than this, not all rights and wrongs are equivalent, some requiring amends of the kind we have noted, and some only compensation.
… So, killing in itself might not be wrong (someone might have killed your relative) but killing without reason is, and legally means vengeance or compensation; on the other hand, killing, wounding, or otherwise inflicting harm at truce, or at market, or in breach of an individual man’s protection is a wrong in itself that requires additional amends—typically a multiple of the compensation that otherwise is due, paid to those whose manʿ is violated. From at least the seventeenth century amends are often named as compensation fourfold (if you wound my guest, you owe four times the wound-money), and from at least the eighteenth century certain wrongs should be paid for elevenfold. In the early material it is twofold (tathnīyah, doubling). Throughout the record such payments, which are characteristic of specifically tribal justice, attach to actions involving shame or insult.
Parallels to multiplication recur in many traditions of law. But a further parallel in the Yemeni case is with the line in Gaius where sometimes we sue to gain the thing or its equivalent (ut rem tantum consequamur), sometimes to gain the penalty (ut poenam), and sometimes both. The idea of the penalty—of amends beyond the material compensation due, although here there are not separate ‘forms of action’—distinguishes ḥukm al-manʿ from Islamic law, with which it coexisted in early Yemen and by which it was no doubt complemented:
If the protector commits a wrong against his protégé … apart from [taking] life, if it requires requital, then in sharʿ [here, Islamic law] the protégé is due requital. In manʿ it is requital and [also] reparation. If it requires wound-money, the requirement in manʿ is [therefore] wound-money twofold (Serjeant n.d. (a): 15–16).
Two sorts of law are thus recognized, one of which (ḥukm al-manʿ) applies distinctively among people of tribal standing, among the arms-bearing stratum who in the eyes of their fellows have the capacity and the duty to afford protection:
For he of the sharʿ, wound-money goes to the [victim’s] kin … [And only that, even where protection is violated]. For he of the manʿ, in an action by error [he pays] the value of the wound, and for a deliberate act owes wound-money (arsh) and amends (naṣaf) like the wound-money (ibid. 68).
Certain general terms mark this, such as naqṣ against ʿayb or dam against dhamm. The first of each pair refers to simple harm to property or persons and the compensation due (the res, if you like); the second refers to shameful action, most often ipso facto an insult to other men, and its amends or penalty (the poena). There is a further element, however, which is not Roman.
The type of reparation and the type of offence determine when certain forms of relationship are valid, and thus involve, in manner reminiscent of Hart, ‘rules about other rules.’ The rules of protection, or manʿ, themselves may be suspended.
Shaming or insulting another man or set of men and refusing them amends threatens loss of manʿ, as does failure to right a wrong against one’s protégé. Beyond this, less dramatically, the principle is often quoted these days that al-dhamm qabla l-dam, only when amends have been agreed can compensation be pursued for material damage, and mā ʿalā l-dhamm iʿitirāḍ, there is no intervening for others in cases of shameful action, that is, in wrongs that require more than compensation for the property taken, for the bruise or the broken bone. Normally if I owe a man recompense for an injury I can nonetheless stay with others as a guest, or seek their guaranty to ensure a truce, or ask escort on a journey. This is not the case, however, if I wronged him at market, or at truce, or when he was otherwise protected, and I thus owe amends for insult or shame as well as compensation. No one should take me in: ‘Giving refuge to one who committed shame (al-aʿyab) is itself shame,’ say the early texts, ‘and to shelter him is shame. To send him away is absolution’ (cf. Abū Ghānim 1985: 363). This entails ‘outlawry’ in a limited and more literal sense, the loss of law-bound entitlements, one of which is the public ability to settle for a simple debt and another is recognized protection. In fact, we shall see later on, this may be one single right, not two. …
CATEGORIES, ‘HOSPITALITY’, AND LAW
… Equality, unless subordinate to a common power, implies reciprocal hostility if conflicting claims are made in one moral space (I claim that my judgement holds, you claim that yours does), while hospitality requires an alternation of roles (as guest or host, protégé or protector) and thus separation in space and time. It is only the division of moral space, indeed, that allows protection, reciprocity, and status as fully a legal person for only here can particular judgement thrive without endless violence. Yemeni tribes, like many societies where we recognize something like law, thus gave specific value to the house, the private space par excellence:
Whoever enters another group’s dwelling without their permission owes amends of one head of sheep if nothing further occurs. If he steals something from it, he returns what was stolen and amends of two head of sheep … If he enters a fortified place and steals something from it, he owes amends of a bull worth ten dinars, for he has laid open the protection (abāḥa al-manʿah) of the fortified place (cf. Abū Ghānim 1985: 373).
But the right to amends implies an obligation, and the value of the house beyond that of the fortified place is apparent in the law of dhimmah, ‘safeguard’ which must be given an enemy if they throw themselves under one’s protection. If they come to one’s tribal territory, one is bound, in one version of the detail, to give safeguard of a single month; if they come to one’s house, one must grant a whole year. Examples of moral space imposing both rights and duties could be multiplied. Indeed from one point of view the life of the tribes consists of little else. The language of mutually recognized protected spaces that impose obligations on oneself as well as others …
… Capacity and obligation are linked through notions of esteem, or honour, and thus through mutual recognition which provides the compulsion to protection and to hospitality. Inequality here is basic, whether transient or more lasting. It is this that explains, first, the fact that the protector is owed amends by a third party where the protégé is owed compensation, or that the protector who wrongs his protégé owes his protégé both:
Know that the difference between the protégé and protector is capacity and incapacity (al-qadr wa-l-ʿajz), because he who grants protection can coerce (qāhir) and he who seeks protection is coerced (maqhūr) … (Serjeant n.d. (a): 19).
But coercion itself is suspect, from which derives, secondly, the principle that a person wronged may always apply for help. Although the right to protection is ‘imperfect’ (in legal terms, not actionable), it is matched by what is almost a ‘perfect’ duty:
If the one seeking refuge (al-mutajawwir) comes to the protector (al-mujawwir), he must accept him and grant him protection if he is capable (qādir). If he is incapable (ājiz), he must announce his incapacity and not accept [the claimant] and not grant protection (Serjeant n.d. (a): 11–13).
At the back of the scheme lies a definition of the honourable man, for one cannot be wholly ‘incapable’ in this respect and yet be a tribesman. One could, however, be oppressed in a specific circumstance and honourably ask protection or aid, just as could the man whose protection one seeks.
The link between law and justice is secured in a world like this by the idea of refuge, not that of common power. As we mentioned at the start, tribes may accept persons or whole sets of persons who claim to have been wronged in another tribe (those persons may move, or the line between tribes may be redrawn); men, on the basis of tribal membership, may individually give refuge and protection to others who somehow are oppressed. In both cases, collective and individual, the capacity to offer refuge defines moral worth.
And the existence of opposed sets or persons each with both the right and obligation in the eyes of others to provide such refuge explains the priority of what can seem ‘secondary’ rules describing who is liable when for what, and who should act upon which claim. This is not, perhaps, to most of us a familiar vision, for law is often promoted now in terms of uniform rights and duties. …
CUSTOM MADE POSITIVE
The thrust of the law (the focus of coercion, if one will) is directed not to enforcing a general peace but to maintaining a small inviolate space, around which turn the (legal) disputes of autonomous parties; and the values invoked are apparent in repeated reference, not to Baraṭ or to Dhū Muḥammad or to any source of positive law, but to ‘the laws of the tribes’ in general (shurūʿ al-qabā’il). The values of the tribes in general are what give Dhū Muḥammad and their neighbours worth as part of the tribal world.
Some of these laws, such as those that govern wells and palm trees, are in fact quite specific to the region; others, such as those concerning harm to livestock, may have been more widely familiar. The principles, if not the details, of provisions about escort, refuge, guaranty, non-tribal dependants, the market and harm to women, one would guess, were familiar across large parts of Yemen. They are compatible also with much in our early texts, and deal (often in the same vocabulary) with the same distinctive give and take of protection and reparation. The pact itself, like treatises on ḥukm al-manʿ, scarcely suggests a complex system in Hart’s terms. Not to call it law, however, would be perverse. And the hopes it embodies are expressed in the document’s preamble: ‘This is the custom of father and forefather, and a solution/settlement for whoever has a difference occur between himself and his fellow.’
CONCLUSION
The seeming continuity of tribal law from at least 1400 to 1800, and indeed beyond, raises interesting questions in itself. We do not know how ideas and practices were transmitted. It is probable that Serjeant’s Kitāb al-ādāb wa-l-lawāzim (Serjeant n.d.) or a work very like it some time around 1400 was drawn upon later by minor texts; but the minor texts, such as Rossi’s Kitāb al-tabyīn, cannot be dated.
Who read and copied them where and for what purpose is unknown, and certainly we have no evidence of them being referred to in legal process.
What we do know is that every time we gain a glimpse of tribal affairs, through a document-find or through anecdotes in a chronicle or learned biography, we find much the same logic of mutually-recognized protection, of moral reciprocity, and of a distinction between compensation and amends, expressed in a language of binding rules.
This dispersed form of law, throughout its history, leaves enforcement largely to the parties themselves. Others are involved primarily in so far as they can or cannot lawfully provide refuge, escort, and the like to those at odds; but, except in the case of ‘black shame’ by immediate kin, they are not required to impose law directly upon wrongdoers. Those enamoured of the juristic state’s claims may find this a disappointment, for enforcement (‘compliance’, even) will be central to their understanding of what law is. But ‘enforcement is not, after all, the hallmark of what is meant, or should be meant, by law’ (Anthony D’Amato 1985 article, cf. Hart 1994).
The laws of the tribes in Yemen thus admit a slippage between rule and action, as perhaps do most legalistic systems …
The Source:
Paul Dresch, ‘Aspects of Non-State Law: Early Yemen and Perpetual Peace’, in Legalism, Anthropology, and History, edited by Paul Dresch and Hannah Skoda, Oxford University Press 2012
Evolutions of social order from the earliest humans to the present day and future machine age.