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Вестник СПбГУ. Востоковедение и африканистика. 2019. Т. 11. Вып. 3
Customary Laws in Hadramawt (South Arabia). Between the Past and the Future
M. A. Rodionov
St. Petersburg State University,
7-9, Universitetskaya nab., St. Petersburg, 199034, Russian Federation
For citation: Rodionov M. A. Customary Laws in Hadramawt (South Arabia).Between the Past and the Future. Vestnik of Saint Petersburg University. Asian and African Studies, 2019, vol. 11, issue 3, pp. 371-378. https://doi.org/10.21638/spbu13.2019.309
In his reflections and conclusions on the reasons of current political, economic and humanitarian crisis in South Arabia, in general, and in Hadramawt, in particular, the author relies on his knowledge and understanding of traditional tribal culture of the local population, with Customary, as well as Family law as an integral part of the South Arabia social life. He studies both through various historical handwritten and printed sources, archival materials and a range of personal data which he gathered together during a number of ethnographic field seasons to Yemen in 1983 to 2008. Thereby suggested analytical approach adds some salient arguments to come up to the solution of social and political situation in the region. The author's field experience as social anthropologist in South Arabia gives some hope that the way out of Yemen's present day social turmoil could be found within the legal framework of sober and gradual moves. It can be done only in conformity with local tradition instead of radical and inconsistent changes. In this case it is helpful for the future of the country to analyze some points of the old practices according to Hadrami documents, 19th to 20th centuries from the archives of al-Mukalla and Say'un. Refs 20 items.
Keywords: legal tradition, customary laws, South Arabia, Hadramawt, Hadhramaut.
O ye who believe! Stand out firmly for justice, as witnesses to Allah even as against yourselves, or your parents, or your kin and whatever it be against rich or poor: for Allah can best protect both (Quran 4:135).
This paper is not intended to be an exhaustive treatment of a vast and complicated subject. It grew out of my field experience as social anthropologist in Hadramawt, 198391, 1994, 1998, 2003-6, and 2008, that shed light on relations between customary and governmental laws, as well as on oral/written components of legal tradition. In unified post-1990 Yemen the main tribes of the South, such as Banu Tamim, al-Humum, Nahd, Sayban, etc. have been trying to restore their ancient social institutions, and former proprietors of upper social strata have been applying for the rehabilitation of their past rights. Meanwhile, political, economic and social factors of Yemen's instability since 2011 give us a moderate hope that a legal framework for positive changes in South Arabia has to be developed only in conformity with local traditions. The development of laws in the area tends to go from radical and inconsistent reforms to sober and gradual moves. My purpose is just to present some points of the old tradition.
To complete B. Messick's detailed study of oral/written discourse in Yemeni judicial practice [1], one should emphasize the role of poetic form, i. e. metre, rhyme and stanza,
© Санкт-Петербургский государственный университет, 2019
which is still remembered and appreciated locally. Among the poetical samples I have recorded in Hadramawt are verdicts of a Sharl'a judge Ahmad b. 'All Ba Wazir (19th c.), of Sayyid Husayn al-Mihdar, the famous wazlr of al-Qu'ayti Sultan (early 20th c.), of arbitrating judges (sing. hakam) belonging to Nahd tribe, etc. The most remarkable piece connected with the Nahdi Hakam 'All of the Bin Thabit presents his dispute in 1960ies with a folk poet Bu Bishr (Mubarak Salim Bin 'Aqil al-Nahdi). The latter defended the case of the unified state against separatists. For more details see Poetry and Power in Hadramawt [2, p. 118-133]; samples of legal cases and disputes in verse see in my book Ethnography of Western Hadramawt [3, p. 174-177, 192-194; 4, p. 182-185, 189-194].
Certain poetic formulas had been introduced into judicial documents of the tribes. Blocks of prose are often intermingled there with the saj' rhymed passages. According to my friend and colleague Dr. 'Abd al-'Aziz Bin 'Aqil [5, p. 14-15], these documents (sing. wathar) from the Inner Hadramawt and the Coast can be divided into:
1. armistice (hudna) and peace (sulh) agreements,
2. treaties on tribal unions,
3. treaties on tribal frontiers,
4. documents of purchase, sale and user-rights transfer,
5. documents of mediation (wasita) and legal procedure,
6. regulations on security of communications (siyyara wa khifara) and markets,
7. documents on criminal offences,
8. civil status' certificates.
Samples of nearly all the above-mentioned categories are preserved in the Hadra-mawt Archives of the General Organization of Antiquities, Museums and Manuscripts in al-Mukalla (the al-Qu'ayti Sultanate Archives and private collection of Sada 'Aydarus from al-Shihr) and Say'un (the al-Kathiri Sultanate Archives). Tribal documents from al-Mukalla numbered more than 420 items in 11 files; were examined for the first time by 'Abd al-'Aziz Bin 'Aqil in his PhD thesis [6]. The earliest one dates from renowned Sultan Badr Bu Tuwayriq al-Kathiri 932/1526; on the whole, however, the papers belong to the period from the beginning of the 19th to the first half of the 20th century. The most representative categories are №№ 1-4.
Copies of these documents were kept by heads of involved clans and sub-tribes, by the chiefs of tribal confederations as well as by the elders of Sada or Mashayikh families who signed the papers as guarantors and/or mediators. Since the climate of Hadramawt reduces the age of paper to about fifty years, documents have been copied and renewed from time to time. Each category uses a pattern of its own. Apart from the framing religious formulas, the body of a text is written in vernacular; some terms and expressions are old and rather obscure even for our informants in Hadramawt.
Armistice treaties and piece agreements of various kinds usually comprise main strata of a local society which are referred to by three double-terms. Damm wa farth, or blood and digestible content of stomach and guts, accordingly mean tribesmen and representatives of underprivileged strata [cf. 7, p. 313]. Sha'im wa la'im, or an ill-omened and a reproached, shamed and blamed, signify a person of any strata who seeks refuge in a tribe and, respectively, his property under tribal protection. Sarih wa dawl, or he who enters and leaves, relate to anybody visiting a place with peaceful intentions. For the last formula in verse, consult my book (3, pp. 167, 190; 4, pp. 179-180).
Among various treaties on tribal union one can single out a concrete agreement of 1259/1843 between al-Shanafir (with its leading tribe Al Kathir), Banu Dhanna (lead by the Tamim), al-Humum, and Mahra. They concluded a defensive union against any intruder who might wage war against their land, Hadramawt, be it either the Wahhabis, or the Imamis (file M: fa.mim/4). Most of the treaties were concluded on economic reasons, such as the treaty of 1206/1790 between al-Hayki of Sayban, 'Awabitha, and Al Yumayn from al-Humum which meant to guarantee the security of the al-Shihr market and the neighbouring agricultural area of Ghayl Ba Wazir (file M: 1/4).
Of special interest are the treatises concerning the tribal frontiers, this pattern being particularly evaluated today when the traditional leaders are trying to reinforce their influence over the tribesmen and the Government. Geographical limits of tribal areas had been minutely fixed since it defined a scale of certain rights' efficacy, e.g. trade caravans' protection, rights for pastures, wood collection, crop taxes, blood-revenge, etc. Time limits of their validity vary from months or a year to infinity, the latter is often described as 'until the raven turns grey and the earth perishes', or 'this union is inherited by the living from the dead' (e.g. file M: 1/7).
The documents of the al-Mukalla Archives allow us to trace through the complicated and dramatic history of territorial claims between Banu Dhanna and Mahra from the 18th century to the first half of the 20th century (files M: qaf.mim/1, qaf.mim/2, mim.ba/5, etc.). The latest claims of that kind took place in the 60ies of the 20th century when the Qu'ayti and Mahra Sultanates contended for a vast, presumably oil-bearing, desert area in the north-east, whereas a part of a northern desert by the same reason had become an apple of discord between the Qu'ayti and the Kathiri. Their discussion based on the papers of tribal unions was so sharp that the British Administration in Aden and Hadramawt had interfered to stop it (M: Account 1962: 1-2) [6, p. 102].
Documents on purchase, sale and user-rights transfer deal with the cases when one party renounces its property/user rights and transfers it to the other party on certain conditions. This kind of documents is called qalam wa inqita', thus stressing the definite character of decision which is not liable to appeal for both parties. The final formula asserts it as following: la da'wa wa la talab wa la 'ulqa wa la sabab, 'no appeal and no demand, no connection and no cause'. The Qu'ayti Sultanate used this pattern of documents for strengthening its control over the tribal territories at the coastal strip, that of Sayban, near al-Mukalla, and of al-Humum, near al-Shihr and eastward (files M: 1/33; 9: 1-2). Thus Banu Hasan section of Sayban, the landlords of al-Mukalla region, had given up their rights for the area in 1300/1882 pledging instead to protect the Sultanate subjects and their property (sM'im wa la'im). Al-Humum, however, were not so compliant. Only when the Qu'ayti had organized a massacre of 27 Humumi 'strong men' (shada 'id) including the supreme chief of the tribe in al-Shihr, 1918, the tribe ceded to the Sultan one coastal region, May'an al-Rawda, keeping the rest up to the late 1940s.
On sale, purchase and deposit as means of political control, as well as on mediation and mediators in traditional society of Hadramawt, consult my article [2, pp. 126, 119, 123-125]. Since the Nahdi hakam has returned back from abroad to Qa'uda in the west of Wadi Hadramawt and new documents on the Tamimi hakam are available in Qasam in the east, this topic may be studied in more details.
Security of communications and markets permanently violated in past-time Hadra-mawt has always been one of the most essential conditions of her stability. Thus trad-
ing routes from inner Hadramawt to the coast had been, and for a certain extent are, controlled by Nuwwah, Sayban, al-Humum, al-Mashajira, al-Dayyin and al-'Awabitha. Caravan routes to the North of Yemen, Hijaz and Oman go through the lands of al-Say'ar, Karab, al-Manahil, al-'Awamir and Nahd [6, pp. 53-75]. Security on routes, in particular siyyara wa khfara, protection and escort, was regulated by numerous tribal and sultanates' agreements and documents. Before 1937, i. e. till the intertribal Ingrams Peace, concluded by the British official Harold Ingrams, both categories were very much alike, the Sultans being regarded as supreme chiefs of the Yafi'i tribal confederation, in the case of al-Qu'ayti, or of al-Shanafir tribal union, in the case of al-Kathiri.
Local documents on criminal offences reflect the customary law of the area. In contrast to highland North with its 'Seven Qanuns' of the Zaydi tribes [8], no general code of this kind is known in Hadramawt. Particular cases, however, have been recorded in plethora [9; 10].
Selective analysis of al-Kathiri [11; 12; 13] and al-Qu'ayti [14] legal documents proves that being more modern formally, i. e. having used some borrowed techniques from Egypt and British-controlled Aden, they were mainly based on customary law. The expressive example is The Labour Code confirmed in Say'un by the Sultan 'Ali b. Mansur b. Ghalib al-Kathiri dated 15 Safar 1351/20 June 1932 (S:1351: 1-2). Written in traditional manner, the document does not deal with the tribal element of society but concentrates on the underprivileged stratum of du 'afa, or 'the weak' i. e. wage-earners, labourers, and their foremen or skilled tradesmen from masakln stratum. The paper comprises foremen and wage-earners of building and lime plastering, makers of mud-bricks, carpenters, well-diggers, palm cultivators, ploughmen, camel and donkey drivers, etc. It defines wages in cash and in food, fixes working hours for men, women and children, and limits the narrow area of its validity. The unique picture of labour relations in the Kathiri Sultanate obliquely reveals the traces of asnaf, or guild-system in the country [12, pp. 196-197].
The principles of customary law ('urf) are based up to now on the precedent right (sawarih), on collective guarantee, mutual responsibility and retaliation right (qafs). Sophisticated system of bails ('arabun, tarh, nitaf) has been practised to calm down the opposite parties. The measures of punishment vary from different fines (arsh, hushum) to expulsion from the tribe (zawila) and/or death. Among the ways of proof-verification the most exotic is bisk'a, or the trial by ordeal, the memory of which is still alive, especially in the east of Wadi Hadramawt.
The Family law and corresponding documentation show interdependence of Sharl 'a in procedure and status, on the one hand, and local traditions ('awa 'id) on the other [15, p. 224]. According to our informants, in the central part and the west of Wadi Hadramawt the marital problems were solved by appellation to the Sharl 'a courts or by direct agreements between families, whereas in the north and the east the parties mostly appealed to the precedent right, al-sawarih [6, pp. 128-130].
Already Serjeant had noticed the wish of al-Qu'ayti authorities in 1959 to introduce some order onto the wedding ritual, to make it simpler and, which was more important, cheaper [16]. Before that, however, the same attempts had been made by the Tarim Sada in 1895-1896 and by 'Ali b. al-Mansur al-Kathiri in the spring of 1934 (S: 1353). In all these ordinances luxury in marital celebrations were regarded as a sinful novelty (bid 'a). All prohibitive measures, nevertheless, remained but on paper; the only suffering party were the dancers who did not receive gifts ever since being simply paid off.
Something similar was later done by the Marxist authorities of the Fifth Province. i. e. Hadramawt, in 1974, but on entirely opposite ground. 'Extravagance in enjoying luxury is a colonial phenomenon which has ever been served the interests of monopolies', argued local newspaper Al-Sharara, named after the Russian Social Democratic Labour Party's organ of early 20th century, Iskra, or the Sparkle. In its issue of 17 April, 1974 Al-Sharara published an Appendix to the General Marriage Law under the title 'The Order of Marriage and Observance of Rituals' (pp. 1-8) which extended to the Southern Mudiriyya of the Province and went to great details indicating so to speak the ritual minimum of and limits for allowed wedding expenses. Despite its belligerent wording, the Appendix has been followed in full neither at the coast nor in the Inner Hadramawt.
As for the marital expenses, it is still a serious problem for the Hadramis. Thus, in the late 80ies the polls conducted by my collaborator Ilham 'Abd al-Wahhab in Western Hadramawt and including about 90 men and women, showed that the mahr, or bride-price, in settled locals varied between 250 and 750 dinars in the case of endogamous marriages, and from 750 to 2,000 with the exogamy ones. The mahr outside a tribe could amount to 5,000 dinars plus the cost of the bride's wedding dress, 500-600 dinars, plus the jewellery for the value 'of a pound of gold'.
Among the settled and nomads to these sums are added the jihaz, or special wedding expenses, and 100 dinars of the 'obligatory mahr, the maximum ransom allowed by article 18 of the PDRY Family Law [17]. Actually this limitation did nothing but increased the total mahr as 'the maximum' turned into an additional contribution. Whenever the divorce is caused by the wife's fault, the court may make her pay the ex-husband a compensation not exceeding the mahr (Article 30). The Government, however, did not permit it to be over 100 dinar, since the greater bride-prices were not recognized. That caused occasional felony on the side of the wife and her family, for the temptation to get a divorce and keep the lion's share of the money was far too strong.
The principle of collective responsibility has been undermined by individual property norms with its formula nashir la yadummu wala', (M: mim. fa/5), or 'the owner does not join the alliance', which means that private ownership of a parcel by a tribesman does not imply collective rights for this land on the side of the whole tribe.
Traditional property norms in Hadramawt are rooted in the close links between the land and water usage, like elsewhere in the Arab world [18]. The idea of property, mal, in Hadramawt was and still is articulated almost exclusively in respect of land, the cultivated parcel with growing palms, dhurra or other crops. The land ownership could be called collective, with respect to tribal lands, and private. All private landowners were entered into special cadastre books (qa'ima pl. qayim). The communal lands mubah, or allowed ones, used either as pastures or to collect fuel, in theory equally belonged to all, in practice, however, were given over to various groups of the tribesmen. Besides, as elsewhere in the Muslim World, there existed waqf lands.
Since the land and water rights cannot be separated from each other, the water rights are not transferable as a bride-price, cannot be donated, presented, given over or bequeathed. The fiqh, providing a social reglamentation for the Shari'a general ethical and dogmatic standards, has not worked out strict principles of Islamic water use. The most valued in Hadramawt, therefore, were the legal opinions (sing. fatwa) of the Shafi 'i lawyer Ibn Hajar al-Haytami (d.1566) who solved these problems according to common sense and customary law. In the flood irrigation areas there are local experts
in customary land-and-irrigation law. To the west of Inner Hadramawt, in Wadi 'Amd, the most revered are the Mashayikh of Ba Jabir family who still preserve their land records, dafatir. Most experts of the West Hadramawt belong to the Hirthan, or the ploughmen, stratum, who are considered to be the autochthonous locals; the rest are from Mashayikh and Sada.
Flood (sayl) irrigation with its network of canals allows regulating the relationship within an agricultural neighbourhood without any law-enforcing bodies since every farmer is personally interested in the network functioning properly and therefore depends on his neighbour. The task of the irrigation expert, or controller, khayyil, was to asses the damage done by the flood to the main irrigation canal and to organize its restoration. His two assistants had to keep dafatir, indicating the owners' names and the boundaries of their land, and oversaw secondary canals. All of them were eligible by the community and got no salary. At his disposal, however, every khayyil had the money contributed by the landowners proportionally to the sizes of their parcels. An owner could personally participate in a collective work of repairing the irrigation network or he hired workers through the khayyil. My informants stressed that the latter could not arbitrarily change the water usage order and always checked whether the accepted practice corresponded the tradition.
The farmers' interdependence kept growing due to the heritage law which made the land be sliced into the scattered parcels, since each equal heir has a share in each part of the inherited. In local flood irrigation areas the dispersed layout of the land belonging to a household made the water use customary practice be followed to a letter, i. e. before the water got to the following strip of the land it had to pass that of a neighbour. The nature of irrigation works made it necessary to help the sick, the old and the absent in cleaning their canals of the sediments formed during the flood or of mineral salts remaining in open ditches leading from the spring. However, in case a peasant did not participate in the works during the flood, his neighbours could either let the water on his parcel, or use it themselves.
Typical for the flood irrigation zones, the situation turns to differ in the areas of wellirrigation where middle- and large- scale land ownership had been rapidly developed before 1967. Thus, in al-Qatn region, a well-irrigation centre, the private property of land was strengthened during the 30ies to 50ies. According to my informants, there had existed 3 kinds of land property:
1. the Sultan's land, mulkiyat al-dawla, near al-'Aqqad, leased to major proprietors,
2. the waqf land, about 200 feddans,
3. private land: 14,379 well-irrigated feddans, 1,649 flood-irrigated.
In al-Qatn region, the tribal property rapidly turned into private. Major landowners, 202 persons, had from 10 to 564 feddans, totally 11,794. Middle-class owners, 173 persons, possessed from 15 to 20 feddans each, totally 2,088. And the minor, 192 persons, had only 614 feddans (Q: Zira'a). Under these circumstances when the local village communities lost its centripetal ties the function of a khayyil was unknown.
Under the Marxist regime the traditional social institute of irrigation controllers had been replaced, in 1970ies to early 1990ies, with the collective bureaucratic structure of the so called agricultural committees, al-lijan al-zira 'iyya, which bore no responsibility before the peasants and therefore could not effectively replace the former tradition.
Nowadays customary laws of habit, 'awa'id, and usage, 'urf, are locally interlaced with the Shafi 'i Islam being common moral values of the populace. Thus any efforts to improve the social situation and any legislative policy may be effective only provided that these values are taken into account.
References
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2. Rodionov M. A. Poetry and Power in Hadramawt. New Arabian Studies, 1996, no. 3, pp. 118-133.
3. Rodionov M. A. Ethnography of Western Hadramawt: The General and the Local in an Ethnic Culture. Moscow, Nauka Publ., 1994. (In Russian)
4. Rodionov M. A. The Western Hadramawt: Ethnographic Field Rearch, 1985-91. Orientwissenschaftliches Hefte. OWZ der Martin-Luther-Universitaet Halle-Wittenberg, 2007. Hft 24.
5. Bin 'Aqil 'Abd al-'Aziz Ja'far. Ethnosocial Structure and Social Defence's Institutes in Hadramawt (19th to the first half of the 20th c.). PhD Abstract. St. Petersburg, 1992. (In Russian)
6. Bin 'Aqil 'Abd al-'Aziz Ja'far. Ethnosocial Structure and Social Defence's Institutes in Hadramawt (19th to the first half of the 20th c.). PhD Thesis. Institute for Oriental Studies. St. Petersburg, 1992.
7. Serjeant R. B. A Maqamah on Palm-Protection (Shirahah). Journal of Near East Studies, 1981, 40, no. 4, pp. 307-322.
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9. Serjeant R. B. Two tribal Law Cases (Documents). (Wahidi Sultanate, South West Arabia.). Journal of Royal Asiatic Society, 1951, 33-47, pp. 156-169.
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14. Serjeant R. B. Customary Law among the Fishermen of al-Shihr. Middle East Studies and Libraries: A Felicitation Volume for J. D. Pearson, 1980, pp. 193-203.
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16. Serjeant R. B. Recent Marriage Legislation from al-Mukalla with Notes on Marriage Customs. BSOAS, 1962, no. 25, pp. 472-498.
17. The Agrarian Reform Law, the Housing Law, the Family Law, the Fundamental Labour Law [in PDRY]. London, 1978.
18. Maktari Abdulla M. Water Right and Irrigation Practices in Lahj. A Study of the Application of the Customary and Shari'ah Law in South-West Arabia. Cambridge, University of Cambridge Oriental Publication 21, 1971.
Received: April 12, 2019 Accepted: June 17, 2019
Author's information:
Mikhail A. Rodionov — Dr. Sci (History), Professor; [email protected]
Обычное право в Хадрамауте (Южная Аравия).
Между прошлым и будущим
М. А. Родионов
Санкт-Петербургский государственный университет,
Российская Федерация, 199034, Санкт-Петербург, Университетская наб., 7-9
Для цитирования: Rodionov M. A. Customary Laws in Hadramawt (South Arabia).Between the Past
and the Future // Вестник Санкт-Петербургского университета. Востоковедение и африканистика. 2019. Т. 11. Вып. 3. С. 371-378. https://doi.org/10.21638/spbu13.2019.309
В своих размышлениях и выводах о причинах нынешнего политического, экономического и гуманитарного кризиса в Южной Аравии в целом и в Хадрамауте в частности автор опирается на знание и оценку традиционной племенной культуры, сохраняющейся у населения региона до наших дней, а также на обычное и семейное право как неотъемлемую составляющую южноаравийской общественной жизни. Автор изучал правовые документы, привлекая рукописные и печатные источники, архивные материалы и расспросные данные, собранные им во время девяти полевых этнографических сезонов в Йемене с 1983 по 2008 г. Особый интерес представляют традиционные документы, регулирующие отношения, связанные с земельной собственностью: в наши дни они приобрели новую ценность, обосновывая притязания старой элиты на возврат конфискованной недвижимости. Предлагаемый аналитический подход позволит приблизиться к разрешению проблем, вызванных острейшей социально-политической ситуацией в регионе. Опыт полевой работы в качестве социального антрополога в Южной Аравии дает автору определенную надежду на то, что выход из общественной анархии, царящей сегодня в Йемене, может быть достигнут путем серии последовательных и умеренных законотворческих и законоприменительных действий. Этого можно достичь, лишь опираясь на местную традицию, а не на радикальные и непоследовательные меры. В таком случае для будущего страны целесообразно проанализировать некоторые аспекты старой практики, опираясь на хадрамаутские документы XIX-XX вв. из городских и частных архивов Мукаллы и Сейуна. Ключевые слова: правовая традиция, обычное право, Южная Аравия, Хадрамаут.
Статья поступила в редакцию 12 апреля 2019 г., рекомендована к печати 17 июня 2019 г.
Контактная информация:
Родионов Михаил Анатольевич — д-р ист. наук, проф., [email protected]
Appendix. Archives
M. — al-Mukalla, Archives of the General Organization of Antiquities, Museums and Manuscripts.
Q. — al-Qatn, Archives of the former local Culture Department. S. — Say'ün, Archives of the General Organization of Antiquities, Museums and Manuscripts.
