tribal law in the arab world: a review of the literature

Tribal Law in the Arab World: A Review of the LiteratureAuthor(s): Frank H. StewartSource: International Journal of Middle East Studies, Vol. 19, No. 4 (Nov., 1987), pp. 473-490Published by: Cambridge University PressStable URL: http://www.jstor.org/stable/163212 .

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Int. J. Middle East Stud. 19 (1987), 473-490 Printed in the United States of America

Frank H. Stewart

TRIBAL LAW IN THE ARAB WORLD:

A REVIEW OF THE LITERATURE

At the time of Napoleon's invasion of Egypt-the conventional starting point of modern Middle Eastern history-central governments in the Arab world had long been exceedingly weak. The situation began to change after 1800: At an early stage, Egypt was brought under firm control, and toward the end of the century the Ottoman regime began to tighten its grip on its Arab subjects. In some places, however-the Arabian peninsula, for instance, or Morocco-it is only within living memory that the authorities have acquired the kind of power over their territories that a modern state is expected to have.

When the central governments were weak, Bedouin tribes were able to take over large parts of the countryside. The area under cultivation shrank dramatically, and numerous villages vanished from the map. Those that survived often had to pay tribute to the nomads, and the sedentary population was in many places deeply influenced by the culture of the tribes.

During the long centuries of anarchy, the administration of justice in the countryside was no longer in the hands of the state. The Bedouin tribes, the villages, and even some of the small towns followed customary law. The law varied from one community to another. Everywhere it was influenced by Islamic law-in some places deeply, and in others only superficially.

Since only a minority of the population lived in the cities, the law that really mattered for most people was the customary law. But in contrast to the mass of sources we have for Islamic law--and I have in mind not only literary works, but also the extensive qadis' archives that have survived in various cities of the Arab world-the evidence on the customary law is exceedingly restricted. The over- whelming majority of the people who lived by this law were illiterate, and so too, often enough, were those who administered it. Written records were sometimes produced, but not in large quantities; small private archives were formed, but little is known of them. The literary classes, who were in any case not interested in writing about the rural way of life, looked on the customary law as illegitimate insofar as it conflicted with Islamic law, and the number of known treatises on the subject (excluding those that are clearly the result of Western influence) can be counted on the fingers of one hand.

Most of what we know about this law is therefore the result of investigations conducted in the field during the present century. Those who have lived for some time in a rural community in the Arab world will usually testify that disputes,

? 1987 Cambridge University Press 0020-7438/87 $5.00 + .00



474 Frank H. Stewart

and the settlement of disputes, are a prominent feature of village or tribal life. The same could be said of the Berbers, but whereas the literature on Berber law-almost all of it in French-is well known and easily accessible,' the sources on Arab customary law are widely scattered and difficult to trace. One result is that the subject has not been given the attention it merits: For instance, almost nothing is said about dispute settlement in such recent American textbooks on the anthropology of the Middle East as Eickelman 1981, Gulick 1983, and Bates and Rassam 1983. Another is that even scholars who do write on the subject are frequently unaware of the work that has already been done: Thus, both Alafenish (1982) and Ginat (1983, 1984) cite numerous sources both in Arabic and in other languages, and yet of the three major works on the Bedouin law of their region (CArif 1933, Qusus 1972, and Abi Hassan 1974) they evidently know only one, CArif 1933. Similarly, neither Obermeyer (1968) nor Mohsen (1975) mentions earlier studies relating to their area that were published by Colucci (between 1927 and 1942) and by Jawhari (1947, 1961).

In what follows, I attempt a critical review of the literature on tribal customary law. My primary interest is in the Bedouin, among whom this law reached the peak of its elaboration, but I have also listed some works relating to villagers. I have not dealt with urban customary law; it certainly existed in various forms,2 but at present not much is known about it.

Innumerable studies of the Middle East touch on customary law in one way or another, and this survey makes no attempt to be comprehensive. It concentrates, rather, on the works that deal most fully with the process of dispute resolution- those that have not received the attention that they deserve, and those that are in some way problematic. With some exceptions (e.g., Mohsen 1975 and CAbd Allah 1980) the studies listed here are not particularly sophisticated, and it has not generally seemed appropriate to evaluate them from a point of view of their method. I have tried to answer two main questions about each work: Where does the information come from? and is it accurate?

A reader who embarks on this body of literature should be cautious in two respects. First, works written by those who are not native speakers of Arabic are often unreliable (except insofar as they are merely repeating material to be found in reliable sources). Studying Bedouin law in the field involves considerable linguistic difficulties,3 and few non-Arabs have been able to overcome them.

Second, most of the literature is not the work of professional scholars, and perhaps for this reason, there is a certain amount of plagiarism. Some striking examples will be given in due course. A disconcerting fact is that even books that are, for the most part, just what they purport to be-that is to say, reports of the author's own findings from the field-occasionally contain items that appear to have been lifted from some earlier author.4

THE CENTRAL REGION

The best-known system of Arab customary law is that of the Bedouin of Sinai, Palestine, and Transjordania. The procedures and legal terminology of the tribes are similar throughout this area, and apparently more complex than anywhere



Tribal Law in the Arab World 475

else in the Arab world. In each tribe there are a number of men who are recognized as judges, and the parties to a dispute bring it before one of these judges, who then holds a formal court hearing with a well-defined adversarial procedure. An elaborate system of guarantees ensures, among other things, that the judge's decision will be carried out. Different types of case are (in principle, though not necessarily in practice) brought before different types of judge.

Most of the literature on this region that was published before about 1945 will not be surveyed here, since it is summarized in Graf n.d. Graf uses as his main source 'Arif 1933-a wise choice-and translates extensive passages from it into German. From an analytic point of view, Graf's study leaves a good deal to be desired, but as a work of reference it is invaluable. Perhaps its most useful feature is the extensive glossary of technical terms, with full references to the sources. Although not quite impeccable,5 the book achieves a satisfactory level of accuracy.

For the area of Transjordania, Graf (forgivably) overlooked a major source, the work of 'Awda al-Qusus.6 Qusus was a lawyer from a well-known Christian family in Karak, and the law he describes in his short but lucid study is evidently that of his hometown and the surrounding area. The works of Qusus and 'Arif were for some forty years the richest and most trustworthy sources on the Bedouin law of the central region, but whereas cArif's book quickly became known in the West,7 the first time that Qusus's study was mentioned in an occidental language seems to have been in 1971, when it was referred to by Chelhod.

Appreciation of Qusuis came earlier in the East. Najlb cAzir published an article on Bedouin law in which virtually all the information was copied from Qustus. The article is reproduced by Rawi;8 I have not seen the original.9 To judge by the text in Rawi, 'Azir does not name Qustus; but the only items I noted in cAzir's work that do not seem to derive from Qusuis are the mention of the judges known as ashdb al-qalta,?0 and the well-known saying al-sulh sayyid al-ahkam."

Another admirer of Qusuis was Wasfi Zakarnya. The chapter on Bedouin law in Zakariya 1945-1947 is mostly taken (with acknowledgment) from Qustus; of the remainder, some is the author's own work,'2 while the rest is derived (without acknowledgment) from Salman 1929 and cAzzawI 1937-1956, Vol. 1. Those parts of the chapter that are Zakariya's own work are of little importance.

Qustus's book was also drawn on heavily by Faruiq al-Kilani, a Jordanian judge, in studies that he published in 1966 and 1972. The first of these (insofar as it deals with customary law) is concerned only with the law of the Jordanian Bedouin, and it contains some minor pieces of information on the subject that seem to have been collected by the author firsthand.13 Kilann's second book essentially repeats the account of Jordanian Bedouin law from the first book, adding to it some data on Iraqi customary law; these are derived entirely from published sources, all of which will be mentioned below. In contrast to almost everyone else who has written about Bedouin law, Kilani is unreservedly hostile to it. He even blames the continued official recognition of Bedouin law for the defeat suffered by the Arab states in the 1967 war with Israel (1972, 221).

Finally, Qusuis is a major source for the sections on Bedouin law in Rabay'a 1973; the author's own material on the subject is of limited interest.




In the West, the best-known study of Bedouin law is Chelhod 1971.'4 The author mentions (p. 12) that he carried out field investigations in Syria, Iraq, Kuwait, Jordan, and the Negev (Israel), but for all practical purposes the legal system he describes is that of the tribes of the Negev and southern Jordan (which is to say that it is also that of the Sinai Bedouin). Chelhod gathered his information partly from the literature and partly from Bedouin informants, but neither of these sources is exploited with the appropriate thoroughness. For example, many Bedouin tribes of the central region have a formal betrothal in which the guardian of the female hands over a sprig (gasala) to her husband- to-be (or to his representative). This has important legal consequences entirely distinct from those of marriage. The wedding follows later, sometimes after an interval of years. This betrothal has been repeatedly, and accurately, described in the literature since at least the time of Burckhardt.15 Chelhod nevertheless takes the handing over of the sprig to be part of the marriage ceremony (p. 104). He even confesses (with disarming honesty) that he is unable to explain the exact meaning of the word gasala. In fact the word was was already correctly trans- lated by Musil (1907-1908, 3:205), and in any case, my experience is that virtually any adult Bedouin from the appropriate area can explain both what gasala means, and how betrothal differs from marriage.

Another weakness of Chelhod's work is that he does not always distinguish between information that he collected from informants, and information that derives from the literature. For example, in the course of the description of the bish'ih, the ordeal of licking a red-hot piece of iron, Chelhod states (incorrectly, as it happens) that it is almost always administered by a member of a Sufi order, and that the orders favored by the Bedouin are those of "Ahmad al-Rifaci, Ahmad al-Dasuqi, CAbd al-Qadir al-JilanT and Ahmad al-Badawi" (p. 190). The only source Chelhod mentions in his discussion of the ordeal is an informant, apparently a customary law judge from Karak; but the statement about the four orders is taken directly from Qusus, even to the point of copying Qusus's slip of the pen (Ahmad al-Dasuqi for Ibrahim al-Dasuql).'6

Chelhod makes some statements that are either false or misleading. For example:

1. "The bash'a [sic] is rarely practiced.... In Jordan, Syria and the Negev this terrible custom has been almost entirely abandoned. Few people have faith in the result of this ordeal" (p. 190f.). As far as Syria is concerned, what Chelhod says seems to be true: the bishCih existed among the 'Aniza tribes at the beginning of the nineteenth century,17 but appears to have become extinct by its end.'8 Yet it is wrong to suggest, as Chelhod does, that the ordeal is everywhere dead or moribund. In Jordan the bish'ih still functioned even at the time that Chelhod's book was published,'9 though it was disapproved of by the authorities.20 (Chelhod may have fallen victim to the wishful thinking of some official.) The Negev Bedouin are not known to have had an mbashshi' (bishcih admin- istrator) of their own; like the people of Sinai, they went to mbashshics either in the east (in southern Transjordania and the northern Hijaz) or in the west (in the vicinity of the Suez Canal).2' The eastern mbashshics no longer function, pri- marily, I believe, as a result of official suppression, but the ordeal continues to be




administered seven days a week by at least three different mbashshi's in the vicinity of the Canal. A Sinai Bedouin friend of mine took a case to one of them in 1986. He reports that he saw six other parties undergo the ordeal on the same day. Just how widespread faith in the ordeal still is may also be seen from the fact that even Negev Bedouin consulted the mbashshi' again as soon as the political situation made it possible (Alafenish 1982). Furthermore, the bish'ih was practiced extensively in southern Arabia,22 and I known of no evidence as to when it fell into desuetude there.

2. "The territory of the tribe is divided into as many sub-divisions, of varying size, as there are clans" (pp. 346f.). This is true in some areas (especially, no doubt, where the land is largely agricultural), but not in others.

3. A Bedouin who catches his wife performing an act of infidelity may, according to Chelhod, kill her with impunity (p. 116). I doubt whether this is true in any Bedouin society (except in cases where there is no adult male who is agnatically closer to the wife than the husband), and certainly it is not true in most, where the victim's agnates would at least claim blood-money from the husband.

The second and third items also illustrate other characteristics of Chelhod's work: Neither of these statements is supported by any evidence (e.g., details of a particular tribal territory that is divided in this way, or some cases of husbands who had killed their wives); and both of them ascribe to "the Bedouin" general rules or institutions that (if they exist at all among Bedouin) are restricted to certain communities.

In sum, Chelhod's work must be used with caution. A large part of what he says can be checked, in one way or another, against the literary sources; any statements that cannot be controlled in this fashion should be treated with reserve. On p. 152, for instance, Chelhod makes an observation about a type of judge called the manshad among the Ahaywat tribe of southern Jordan. There is no way either to confirm or to refute Chelhod's statement from the literature, but as it happens, I have firsthand knowledge of the part of the Ahaywat tribe that resides in Sinai. Chelhod's statement certainly does not apply to them, and I have little doubt that it is equally untrue of the Ahaywat who live in Jordan.

A work that stands in sharp contrast to that of Chelhod is the accurate and knowledgeable study published in 1974 by Muhammad Abu Hassan, a Jordanian policeman with qualifications in both law and anthropology. His book is based on information collected firsthand among the Bedouin of Transjordania. It covers much the same ground as the books of his two major predecessors ('Arif and Qusus), but treats it in greater detail, and with careful attention to the differences in judicial practice between the various tribes. Abu Hassan gives better case material than any other authority (though still not as much as one would wish), and also texts of about a dozen Bedouin documents. The book contains a glossary of technical terms of Bedouin law (as do Chelhod 1971 and Oweidi 1982).

The most recent book-length study of the subject is Oweidi 1982 (which I understand is likely to be published). Like Abu Hassan, Oweidi is a member of the Jordanian police force, but this fact does not deter him from condemning the




work of his colleague, which he describes (most unjustly) as "random, ill- organized, superficial and repetitious" (Oweidi 1982, 15). Oweidi's own work is not, in fact, of the same quality as Abu Hassan's, but it is based on firsthand knowledge of the subject and contains a number of interesting details. Here and there I had my doubts as to the accuracy of certain statements,23 and some matters are not made as clear as they should have been. Oweidi is himself a Bedouin,24 but this is scarcely reflected in his case material: most of it is drawn from government files, some consists of stories of events that took place in the early years of the century, and only a small fraction is really fresh. Oweidi gives more prominence than any other writer on the subject to the role of the government in the Bedouin legal system, and he also gives more attention than others to changes that occurred in the system during the twentieth century. An appendix to his work contains photographic reproductions of some twenty documents relating to Bedouin law.

I turn now to the other parts of the region. For the Sinai the remarkable work of Na'cum Shuqayr (1916) still provides the best guide to the Bedouin in general, and to their legal system in particular. Murray 1935 (overlooked by Graf) owes a good deal to Shuqayr, and perhaps for this reason, its account, though unsystematic, is generally reliable. Jawhari, in his study of customary law in the various desert communities of Egypt (1961), simply copies his chapter on Sinai from Shuqayr (though this is a fact that one is left to discover for oneself).25 JawharT went on to publish a whole book on Sinai (1965) in which the sections on Bedouin law are the product of the same labor-saving method of research. I have not seen JawharT 1937, of which he states that there is also a French translation (1947, 2). Some of the other Egyptian books on Sinai that have been published in recent years devote a page or two to Bedouin law (e.g., Buluk 1975, Hafiz 1980), but the only one that merits attention on the subject is Yamani 1975, the work of a lawyer who is also himself a Sinai Bedouin. His account does not add a great a deal to what we know from other sources, but it is well informed and reliable. Perevolotsky's study of the law of the south Sinai Bedouin (1979) contains much that is interesting, including a quantity of case material, but also a certain number of misunderstandings. Ben-David's ethnography of the Jbaliyih tribe (1981) has some accurate, but not extensive, information about the law. I am myself preparing for publication a large body of material on tribal law collected among the Ahaywat tribe of central Sinai. The only items in print so far are Stewart 1986 and 1987.

For the Negev the fundamental work is, of course, 'Arif 1933. For all its virtues-above all, clarity and accuracy-it fails to show the law as a living system, partly because it contains little case material. Hardy 1963 is based mainly on published materials, but it also contains accounts of two interviews about blood money and related matters, one with a sheikh of the TarabTn tribe, who originally came from the Negev, and one with a sheikh of the Ban! Sakhr of Transjordania. Marx's ethnography of the Zullam (1967) gives a far more detailed account of Bedouin social structure than any previous publication, and touches at many points on the legal system; but the author's treatment of the more technical side of the law is occasionally in need of correction.26 Abu Khuisa




1976-1979 devotes some pages to tribal law, but contributes little that is new. Ginat's papers (1983 and 1984) provide case material, but the framework of traditional law in which the events took place is not perfectly elucidated. I have not seen Ginat 1987.

The law of the Bedouin of the Judaean Desert is being dealt with in a series of studies by A. Layish (1980-1982, 1984; Layish and Shmueli 1979). Layish was given access to the personal archive of a Bedouin judge, which contains several thousand documents, some dating back as far as the first half of the last century. Layish intends to publish two books based on this body of material: one an analytic study, the other a selection of documents. A work that, despite its promising title, may safely be ignored is Rachewiltz 1967. This is a 47-page opus of miniature dimensions (about 21/2 by 3 inches), containing sayings collected from Bedouin in the vicinity of Ramallah and Nablus, some of dubious authenticity.

Kressel 1982 is an extended case study of a feud among sedentary Bedouin who live not far from Tel Aviv. An English version is in preparation.

For the Bedouin of the Galilee we have chapters on their law in Ashkenazi 1938 (not mentioned by Graf) and Sonnen 1952 (well informed and accurate). Al-'AbidT 1975 describes a reconciliation ceremony that took place in 1940, after Bedouin thieves from the Luhayb tribe had killed an Arab inhabitant of Safad.

It is, in fact, impossible to draw a sharp line between the customary law of the sedentary Arabs of Palestine and that of their Bedouin neighbors. Graf recognized this, and included various works on the Palestinian peasants and towns- people in his bibliography. The relevant literature is enormous, but generally well known and easily accessible, and I shall mention only a handful of items here. Albengo 1860 is a 35-page pamphlet of a somewhat problematic nature. Pages 1-27 have more or less the form of a code of laws, while pages 27-35 are translations of songs sung at weddings, funerals, and the like. The information in the code is clearly authentic, and evidently reflects the practice of villagers in the vicinity of Jerusalem, but it is equally clear that this is not a mere translation of an Arabic original. It may be a compilation made by Albengo entirely on the basis of information given to him orally, but I suspect that much of it is a paraphrastic and expanded translation of a written original.

Much interesting material is to be found in the Quarterly Statement of the Palestine Exploration Fund, above all in the period before World War I; Finn 1879 is especially noteworthy. McCown 1922 is a particularly full account of a homicide reconciliation ceremony among villagers in the vicinity of Jerusalem; in this case the victim was a woman. Canaan 1964 is informative, but represents a synthesis of material from various localities and tribes. Steppat 1974 gives the original and a translation of a mid-nineteenth-century document by which the inhabitants of the town of Nazareth made certain agreements among themselves concerning blood-money.

For the Bedouin of Syria there is little to add to Graf's bibliography, and it remains unclear to what extent the various tribes share the judicial institutions of the central region. Abu Hassan 1974 has some data on the Rwala and the Ahl al-Jabal, tribes that come from or extend into Syria, but such ethnographic work




as has been done in Syria itself during the last forty years has ignored tribal law. The single exception is Al-Faour 1968. This is a study of the Fadl tribe in the early 1960s, when it was divided between a sedentary section on the Golan Heights and a nomadic section mainly in Lebanon. The author is himself a member of the tribe (to judge by his name, he belongs to its leading descent group). Al-Faour's work runs to about 500 pages and leaves something to be desired as regards clarity and organization; but it is based on serious sociological research, and contains a mass of information about the law and social structure of the Fadl. The material on dispute settlement concentrates on homicide, and analyzes thirty-three cases in detail.

Most of the states in this region at one time made provision for special courts that applied Bedouin law. For Sinai, the relevant legislation up to World War I is given by Shuqayr (1916, 288-96); I have not been able to discover any list of the subsequent legislation, but Jarvis 1931 describes the administration of justice in the 1920s. For Mandatory Palestine, references to the regulations on the subject will be found in Hardy 1963, 78; Marx 1967, 33; and Oweidi 1982, 91 (each of which gives references not listed by either of the others); Professor A. Layish informs me that these regulations ceased to be applied after the establishment of the state of Israel, though they were never formally abrogated. For Jordan, Appendix I of Oweidi 1982 gives English translations of the relevant legislation from beginning to end (the tribal courts were abolished in 1976).27 Appendix I of Al-Faour 1968 summarizes the corresponding regulations in Syria, where special judicial procedures for Bedouin ceased to exist in 1953.

ARABIA

The kind of legal system that exists in Sinai, Palestine, and Transjordania also extends at least into the northern Hijaz,28 which may therefore be considered part of the central region. Almost nothing is known about customary law in the rest of northern Arabia, though some hints can be gleaned from Dickson 1951, Ma.hjub 1973a, and Rawi n.d., 335-39 and 359-68 (these being sections written by Rawi himself). All three relate to the tribes of Kuwait and the adjacent deserts of Iraq and Saudi Arabia. They suggest a law more similar to the kind found in the central region than to the system of the sedentary tribes of southern Iraq. Roberts 1928 tells the story of a sheikh of the DafTr tribe whose son killed a man from another tribe who was under the protection of the sheikh; the sheikh thereupon killed his own son. The author, a British political officer, states that he was present when the son died. Henninger 1959 is based on published sources in European languages, and covers virtually all the Asiatic Bedouin. The Wahhabis were, of course, inimical to tribal law,29 and there must be large areas in which, under their influence, it was long ago more or less eradicated.30

Tribal law is highly developed in Southern Arabia, but our knowledge of it is fragmentary at best. Most of the information comes from North Yemen. The basic study is still Rossi 1948, which begins by summarizing the earlier literature. The central part of the article is an account of the contents of a manuscript




dealing with the customary law of the area; a work related to the one analyzed by Rossi is described briefly by Serjeant (1950, 589-91). Subsequent studies include Rathjens 1951, Dostal 1974, Chelhod 1975 and 1976, Obermeyer 1981, Dresch 1981 and 1984, Adra 1982 (which gives the best picture to date of rural life in the Yemen), and Puin 1984. Serjeant and Lewcock 1983 contains much that is of interest. A good deal of anthropological work has been carried out in North Yemen in recent years, and Adra (1982, 21-22) lists various unpublished theses and theses in progress. I have not seen any of them, but it is evident that some contain data on customary law.

For South Yemen we have documents relating to two tribal disputes, published by Serjeant in 1951. Several of the articles collected in Serjeant 1981 touch on tribal law, as does Serjeant 1976. (Serjeant has also published a kind of survey of customary law in Arabia, 1979.) Hartley 1961 may contain data on our subject, but I have not seen it. Maktari 1971 deals with the water law of an area near Aden; for a general survey, see Wilkinson 1978.

1 have not come across any significant work on tribal customary law in Oman, but this too is a country that has been open to research in recent years, and it may be that interesting material will appear in the future.

IRAQ

The rural population of southern Iraq, though largely sedentary, is (or was until recently) organized along tribal lines, and has a well-developed system of customary law. Substantively this law does not differ much from that of the Bedouin to the west, but its procedures and terminology are quite distinct. Although there are judges (at least in some places), they are not variegated like those in the central region, and they are subordinate to the powerful sheikhs.

The fundamental work is Fariq 1941. It is wordy and self-serving, and by no means of the same quality as the books by CArif and Qusus from the same period; but it has an undeniable authority, since the author was himself a sheikh of a tribe of the middle Euphrates, the Fatla. One of the book's deficiencies is the virtual absence of case material, but this can be remedied to some extent from Faris 1353 [1934-1935]. Faris was a government official in the middle Euphrates region; his unpretentious book contains much interesting information about the local people, and deserves to be better known than it is.31 JalalT 194732 is also the work of an official, in this case one who served on the lower part of the Tigris. He has a good chapter on customary law (pp. 94-139), based on information from government files. It gives in summary form legal rules from each of nine tribes in the area. CAzzawi 1937-1956 contains sections on tribal law, and there are data in Hasani 1929 and Sharqi 1969, 162ff.

The villagers of Iraq sometimes drew up brief compilations of their laws, and two of these have been published. One appears in Salim's classic study of the marsh village of al-Chibayish.33 The other is from a village in the vicinity of Sharqat on the upper Tigris, and was published by Jarw in 1974. Jarw's article shows that some at least of the villages in northern Iraq had a customary law that was similar to the customary law in the south of the country. A most




interesting document has been edited by Khalidi (1978): It is an agreement between the members of a subtribe in southern Iraq, drawn up probably in the late 1920s or early 1930s, by which they abolish the right that a man had to control the marriage of his bint Camm.

There are chapters on customary law in two recent village studies from southern Iraq-al-Bayat[ 1972 and CAbd Allah 1980. The latter is a work of particularly high quality; though its title suggests otherwise, it is in fact a monograph about a single village.

Apart from Fariq 1941, the only book-length study of Iraqi tribal law is Hasanayn 1967. It is based mainly on the published sources, but also makes use of material from government archives and a little information collected firsthand. A number of official documents relating to tribal disputes are reproduced in the book, and there is an appendix in which FarTq al-Muzhir gives replies to questions set to him by Hasanayn. Hasanayn's book is somewhat diffuse, and not critical in its approach (the author does not realize, for instance, that Qusus's account, as presented by Rawi via 'Azir, relates to southern Transjordania and not to Iraq); but it has the great merit of indicating clearly the source of every datum. Hasanayn gives a good survey of the Iraqi legislation relating to tribal law, beginning with the Ottoman period and continuing down to the withdrawal of official recognition in the wake of the 1958 revolution.

Tahir 1955 has material on tribal law that relates mainly to Iraq, some of which does not seem to derive from published sources. Nafisi 1973 contains a chapter on the customary law of southern Iraq; my impression is that apart from the published sources that he acknowledges, he also had access to unpublished material, part of it in English. Like Hasanayn, he takes the Qusis-cAzir-Rawi material to be authentic Iraqi customary law, which suggests that his own firsthand knowledge of the subject is slight.

Krotkoff 1960 and Wahab 1964 are of little interest. I have not seen the Notes on the Tribal Customary Law in the District issued by the Arab Bureau (Tahir 1972, 286).

There seem to be no studies specifically devoted to the customary law of the Bedouin of Khuzistan, though it may be that some of the works used by Oppenheim (1939-1968, vol. 4/1), most of which I have not seen, contain information on the subject.

CYRENAICA AND THE WESTERN DESERT

In North Africa there are no tribal judges; instead, there is a system of mediators and councils, sometimes together with qadis who at least in principle are supposed to administer Muslim law. As one moves west, the similarities between the laws of the Arab tribes and those of the Berbers become more and more marked, and they should for preference be analyzed together.

On the Bedouin law in Cyrenaica, there is a series of publications by an Italian judge, Massimo Colucci (1927, 1929, 1932-1937, and 1942; 1 have not seen Colucci 1931, which is a 44-page pamphlet). The well-known writings of the anthropologists who have worked in this area (E. E. Evans-Pritchard, E. L.




Peters, and Roy Behnke) contain much that is of legal interest, but little relating directly to dispute settlement.

The law of the Cyrenaican Bedouin was very much the same as that of the Awlad 'Ali Bedouin in the Western Desert of Egypt, for which there is excellent documentation. The fundamental works are Obermeyer 1968 and Mohsen 1975.34 Both are based on fieldwork carried out in the mid-1960s, and both give English versions of a number of Bedouin documents;35 but generally speaking the two studies complement each other rather than overlap. Mohsen is a member of the Egyptian bar, and her work is notable for its material on dispute settlement and for its analysis of the legal status of women (given in a shorter version in Mohsen 1967). Obermeyer's dissertation has a particularly detailed account of rights in land (on which subject see also 'Arabi 1980).

Kennett 1925 and Murray 1935 both have data on Western Desert law, and an appendix to Murray's work gives a translation of an Awlad 'All law code. A similar code was published, in Arabic, in two very slightly different versions, by Ma.hjub (1974, 313-46); see also Malhjiub 1973b, 229-40. In contrast to the much briefer Iraqi codes, those of the Awlad CAll are written in polished literary Arabic, and show strong signs of shar'ca influence (e.g., in the law relating to physical injuries).

JawharT 1961, 185-204, also gives something like a code of Awlad 'All law, but one evidently drawn up by an official (JawharT himself?) rather than by the Bedouin; it is nevertheless an authentic and valuable source. JawharT served in the Western Desert between the two world wars, and he reproduces some government documents dealing with Bedouin disputes of this period (1961, 205- 17).36 The material in JawharT 1961 (apart from the government documents) appears also in Jawhari 1947, 223-70 and n.d., 79-115.

The chapter on tribal law in Isma'Il 1975 adds little that is new. I know of no comprehensive account of the legislative and administrative

framework within which the courts operated in the Western Desert, but the following are helpful: Dumreicher 1931a (English translation, 1931b) for the period before World War I; JawharT 1947, 272-88 for the years 1917-1946; and Mohsen 1975, which goes up to 1965.

THE NILE VALLEY

Various works on the EgyptianfallahTn have information about their customary law, but the only study I know of that is specifically devoted to the subject is Abu Zayd 1965. This short book is based on two months' fieldwork carried out in about 1959 in a village in the vicinity of Asyut. It would appear that this study (or a shorter version of it) was first published in 1963, in al-Majalla al-Jina'lya al-QawmTya 6/3, pp. 301-64.

THE SUDAN

The sources in English on the customary law of the Arabs in the present-day state of the Sudan are surveyed in Bruce's annotated bibliography. His judgment




is that "the literature on customary law among the Arabs of Northern Sudan is unsatisfactory in the extreme" (Bruce 1979: 10).

The ethnography of the Sudan has been enriched in recent years by a series of monographs issued by the University of Khartoum under the title Silsilat Dirdsdt fT al-Turath al-Sha'bl. None of them is devoted to customary law, but several contain data on the subject, among them al-Zayn 1970, Ibrahim 1971, and al-Hasan 1974.

THE WESTERN SAHARA

A line drawn from Cyrenaica to Kordofan marks a kind of literary precipice in Bedouin studies: The quality of the information about the Arab tribes drops dramatically as soon as one moves west of it. A great deal has been written, but authors tend to be uninformative about social organization in general, and customary law in particular. The work of Ross Dunn (1977) shows that in the right hands the sources can be made to yield data of the kind that a modern ethnographer seeks, but the work of exploiting them has scarcely begun. In the meanwhile, my sampling of the literature suggests that the only tribe whose customary law has been dealt with at any length is the Rgaybat.

Brief accounts will be found in Larribaud 1952, Lesourd 1959, Hart 1962, and Charre 1966. Caro Baroja 1955, 439-42, gives Spanish versions of three short tribal law codes, one of them from the Rgaybat. I assume that they are taken from written originals in Arabic, though this is not made clear. Denis n.d. (c. 1954) is the work of a French officer who served in the vicinity of Tindouf from 1949 to 1952. In the course of his service he was called upon to settle about 150 disputes (above all about property) that involved the Rgaybat. There is an interesting analysis of these cases, but in the nature of things Denis does not deal with traditional modes of dispute settlement. Seiwert 1981 is a useful summary, based on the published sources, of the history and traditional social organization of the tribe.

The article Ma' al-'Aynayn in the Encyclopaedia of Islam (2d. ed.) mentions a Kitba al-Bddiva by Muhammad al-Mami. In a personal communication, Pro- fessor H. T. Norris, the author of the article, informs me that the work is "concerned with tribal law and custom in the Western Sahara (Tiris) during the last century." It has not been published, and I do not know where a copy of it is to be found.

CONCLUJSION

An enormous amount of information can still be collected on tribal law. In a few decades it will almost all be gone. Even such documents as survive will only be partially comprehensible, since it will no longer be possible to elucidate them with the aid of informants from the environment in which they were produced. But the urgent need to gather new data should not entirely divert scholars from

working on what we already have. At the moment there is not a single general study of customary law in the Arab world. Some synthetic work would act as a




stimulus and a guide to everyone in the field, and would help to gain for the subject a more appropriate amount of attention.

INSTITUTE FOR DESERT RESEARCH

SEDE BOQER

NOTES

Author's note: I am grateful to Michael Cook and Etan Kohlberg for their comments, and to the Institute for Advanced Study, Princeton, for supporting the work on this paper.

'A good starting point is the bibliography in Bousquet 1952. Cf. Grohmann 1922-1933, 1:93; Isma'Tl 1975, 242-46 (on the customary law of the people from

the town of al- Arish who fled to the Western Desert in the wake of the Israeli occupation of Sinai in 1967): Brown 1976, 136; Serjeant and Lewcock 1983; and Stendel 1984.

3Even Wallin, the first Westerner to study Bedouin dialects in a scientific fashion, did not find the language easy. "A collection of all these peculiar laws, and of the Bedouin way of judging and viewing litigation, would no doubt be as interesting as a collection of any other people's laws, but to produce one such has not yet been within my power. The uncommonly difficult language still gives me too much trouble." (Wallin 1864- 1866, 4:46. My thanks to Patricia Crone for bringing this reference to my attention and for translating it.)

4So, for instance, Kennett 1925, 113f. clearly owes much to Shuqayr 1916, 399, and Dickson 1951, 135 echoes Stevens 1923, 283.

5The glossary entry subah, for instance, derives from a misprint in 'Arif's book: the correct reading is iivdb.

"The first edition appeared in 1936, perhaps in al-Majalla al-Qa(ld'Tya al-Urdunnvya. I have not seen it, but take it to be identical in content with the 1972 edition. (Qusiis is mentioned several times in Gubser 1973, a work that itself contains data on customary law.)

7A German translation appeared in 1938, and in 1944 an English translation and adaptation, which includes also material from another of the author's works on the Bedouin. 'Arif himself collaborated in producing the English version, and added a few data which do not appear in the Arabic originals.

8Rawi n.d., 339- 59. This is the third edition of al-Bddiya; it is a somewhat revised and extended version of the second edition (1949), which was in turn a revised version of the first edition (1945). Raw?'s book deals with the Bedouin of Iraq, and the fact that he included in it material relating to Transjordania has (as we shall see) caused some confusion.

9According to Rawi it appeared in the Majallat Ma%had al-Huqaiq al-'ArabT of Damascus. Rawi gives no volume number or date, but publication must have been between 1936 and 1945. ('Azir's article appears in the 1949 edition of Raw?, and I am assuming that it was also in the 1945 edition- which I have not seen).

"'Rawi n.d., 283. "Rawi n.d., 285. :Zakariya 1945--1947, 1:289-93, and perhaps 1:318-23 (with a passage from Qusus 1972:96

inserted starting on the last line of p. 319) and 1:334-36. 13For instance, the case described on p. 27, the observation on p. 40 n. 1, and the mention of the

use of the verb kadd in connection with the jha (p. 42; cf. Palva 1978, p. 20, para. 3). It is just possible that some or all of this information derives from a work referred to by Kila,n and others, which I have not seen: Jurj Saba and Rukus b. Za'id al-'-Uzayzi, (.SafaJat) min al-Ta'r[kh al-UrdunnT wa-min Hayat al-Bddiya. This book (or is it two books?) may have been published in Jerusalem in 1961.

4Even the sharp-tongued Bousquet gave the book a favorable review (1972). 51831, 1:263. See further Bailey 1974, 113 n. 21.

'6Qusuis 1972, 49. The same Ahmad al-Dastuql appears in the works of various other authors who copied from Qusus, among them KTlani (1966, 52; 1972, 213) and Rabay'a (1974, 121).

7Burckhardt 1831, 1:121, 290; cf. Seetzen 1809, 131. I81t is not mentioned, for instance, by either Musil (1928) or Miiller (1931), and the argument from

silence is powerful in the case of such a spectacular institution. See, however, the passage from Curtiss quoted by Graf (n.d., 143 n. 142).




"Oweidi 1982, 34f. 2"Kilani 1966, 53 n. gives a reference to a Jordanian high court decision condemning the bish'ih,

but does not mention the year in which the decision was handed down. 2I'Arif 1933, 95; Abu Hassan 1974, 117; Bailey and Shmueli 1977, 28f. Burckhardt's statement that

"in Hedjaz the mebashae is quite unknown" (1831, 1:290) was certainly not true in more recent times. See 'Arif and Abu Hassan, I I.c., Shuqayr 1916, 420, and Musil 1907-1908, 3:339f.

2Landberg 1886-1898, 5:162ff.; Rhodokanakis 1908-1911, 1:34ff.; Glaser 1913, 124. 31t has hitherto always been accepted (and with good reason) that the kind of judge known as

al- Ugbi is so called because of some original link with the tribe of BanT 'Ugba; Oweidi, however, says nothing of this, and instead explains the name as meaning "the heels" (p. 214). The phrases matlu'a hasdha (perhaps a misprint for hasdtha) and maqruta hasd(t)ha do not, I think, mean "its pebble is revealed" (p. 231); the former means "its pebble is removed," and the latter "its pebble is thrown away." Several of Oweidi's observations about this practice seem to me dubious.

24He belongs to the 'AbbadT tribe, and under the name of Abmad 'Uwaydi al-'Abbadi has published several books in Arabic about the Bedouin.

25The chapter of this work that deals with the Bedouin of the Western Desert will be discussed below; other chapters describe the law of the Beja and of the oases in the Western Desert.

26For example, the assessor of blood-money is not the manshad (p. 184) but the gassds, and the function of the guarantor (kifil) is to guarantee, not to bear witness (p. 239).

27The Arabic text of item XI in Oweidi's appendix, which he describes as unpublished, may be found in Abf Khusa 1976-1979, 1:35-37.

28Cf. Jaussen and Savignac 1920, 11. 29Burckhardt 1831, 1:290, 315; 2:135ff. 3"This seems to be the case, for instance, even for such a remote and conservative tribe as the Al

Murra (Cole 1975. 124). 3'It does not seem to be in the National Union Catalog, but there is a copy in the Widener Library

of Harvard University. 32The only copy that I was able to locate is in the library of the University of Cologne. 331970, 141-44; not included in the English version, 1962. (The 1970 edition of SalTm's book is a

second printing of the 1956-1957 edition, which I have not seen.) 34The main difference between Mohsen 1970 and Mohsen 1975 is that the former gives the real

names of individuals and groups that appear under pseudonyms in the latter. 35The Arabic original of a document given in English by Mohsen (1970, 45-47; 1975, 27-31) is to

be found in Mahjub 1974, 214-16. A comparison suggests how desirable it is to publish not only a translation, but also the original of such texts.

36The part of his chapter that describes the MurabitTn tribes of the area (pp. 180-82) is taken (with characteristic lack of acknowledgment) from Murray (1935, 279-83).

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