Some years ago I went up to the Middle Atlas Mountains of Morocco. That evening, over sweet mint tea and languorous conversation, I happened to mention to my host that I was curious about the Berber law his people used to practice. ‘I must introduce you to my brother, Said,’ he replied: ‘He is the expert on Berber ʿurf throughout this region.’ When I met his brother the following day Said proved to be an enormously impressive figure – tall, robust, with an elegant white beard and a golden turban. His account of Berber law immediately countered many of my stereotypes.
Berber-speakers, who currently account for some forty percent of the Moroccan population, had long been influenced by the forms of law practiced by Arabic-speakers, and differences between the two groupings could be easily exaggerated. When the French Protectorate began in 1912 – the northern strip of the country being under Spanish control – the colonizers were quite prepared to leave the Berbers to handle most of their own legal affairs, including for a short while even criminal matters. Then, in 1930, as nationalism began to fluoresce, the French issued the famous Berber Dahir (edict) that sought to place the Arabs under Islamic law (sharīʿa) and the Berbers under their own customary law (ʿurf), with the effect of bringing Berbers and Arabs together, the former being incensed that (as Said had put it) people did not understand that they regarded the ʿurf as Islamic law, not separate from it. Nevertheless, throughout the remaining quarter century before Morocco achieved independence there were some 145 Berber law courts and six ʿurf appellate courts in the country.
Because I have been writing a general book about tribes and have worked for years in the Islamic courts of North Africa I have begun to wonder how Berber tribal law and sharīʿa had come to fit together without loss of their separate identities. Understanding some features of tribes may help to set up the problem.
Tribes have usually been analyzed in one of two ways: Either as a stage in the cultural evolution of human societies (the famous band-tribe-chiefdom-state progression scheme) or as structural forms based on kinship and territory. As neither of these formulations could be sustained as more examples were added to our knowledge, many anthropologists gave up on the concept of tribe altogether. But if we take a more cultural approach – and switch our metaphors from the crystalline and evolutionary – perhaps a more useful approach may be suggested.
Consider the amoeba. If you ask, ‘what is the shape of an amoeba?’ you have already missed the point, for what is crucial to amoeba is not their momentary form but their capacity for shape-shifting. Similarly, tribes have a series of informing cultural orientations that can produce different structural outcomes. Among these features are the following:
- Tribes do not like too much power in too few hands for too long a period of time. They have multiple devices for dividing and indeed undermining power, from the use of such levelling devices as ritual reversals, structured joking patterns, rotation of short-term, purpose-specific leadership, and forms of redistribution so wealth cannot be converted into enduring power.
- Reciprocity is required. Relationships demand measured, though often strategic, return. Surplus is subject to redistribution, particularly to fend off starvation of the weakest.
- Kinship is vital but not rigidly fixed. Genealogical manipulation, adoption of outsiders, and recasting of history are adaptive devices for changing circumstances.
- Far from being characterized by a loss of individuality, tribal peoples are intensely personalistic. Individuals’ character and relationships define them rather than inherited position or kin connections alone.
- Individuals are on the same moral plane. Tribes are not primitive democracies, but no one person can claim moral superiority over another as a matter of birth or momentary position.
- Ambivalence is played up, both in the highly contextual application of norms and as a mechanism for avoiding violence by acknowledging each individual’s sense of legitimate injury.
If we set these features alongside a number of aspects of Berber customary law (‘urf) and Islamic law (sharīʿa), we can see a wide range of common factors:
Shared features, sharīʿa and Berber law
- Emphasis on contract
- Use of individual and collective oaths
- Mediation by big men, saints, descendants of Prophet
- Property requires beneficial use
- Focus on the socially situated person
- Oral testimony; writing as reduction of the oral
- Concern for consequences on other relationships
- Emphasis on sharing
- Goal is to reconstitute bargain-for relationships
- Adoption and fosterage can be arranged
- Use of payments for torts rather than prison
- Confiscation is possible, but limited
- ‘not unduly concerned with rules’
- Relative ease of divorce; women win most cases
- Custom as important source of law
Surely some of these features are the result of long interaction rather than simple parallel development, and certainly there is considerable variation within each of these legal regimes. But if we take the features of tribes as cultural units and lay them alongside particular Berber examples we may be able not only to see more precisely how each system actually works on the ground but we may also be able to raise some further research issues for the study of Islamic law more generally. For example:
- Islam arose in a tribal context and spread rather quickly to a wide range of tribes. We tend to attribute this spread to the role of warfare and religion. But it is possible that law played no less an important role. For if local practice that did not contradict one of the relatively few legal precepts in the Quran – and if the Quran itself (7:199) validates custom – then newly converted groups could not only maintain their customs but could also regard them as If we see the Prophet as having a sociological jurisprudence – with an emphasis on contract, procedure, personal credibility, etc. – then perhaps we might look more closely at the role of law in the spread of Islam in its earliest days and in the present.
- Max Weber spoke of the Protestant ethic and the spirit of capitalism, but not as something only Protestants and capitalists can practice. Perhaps, too, we can think of many parts of the Middle East as suffused by what might be called ‘the tribal ethos and spirit of reciprocity.’ Seen from that perspective, the legal postulates suggested above may also help us in understanding why the division of urban-rural, Arab-Berber, even sunni-shiʿa may be situational rather than impermeable barriers among the social and political groupings of the region.
- Amoeba can go into a cyst form when needed, only to emerge from seeming death at a later time. As Berber cultural identity fluoresces throughout North Africa the question thus arises whether even Berber law may re-emerge to some extent, in some locales, alongside the elaboration of Berber dialects, rituals, and other cultural identifiers.
- Finally, we may be able to use the example of Berber law to develop a more refined theory of tribes generally. We can also see tribal life as built not on settled structural forms or as a way station to some imagined evolutionary goal but as part of the cosmological view that helps to create a world that makes sense to its adherents. In that respect seeing the relation of Islamic law to Berber practice, and of Berber practice as Islamic, may yield new ways of thinking about both the tribal ethos and spirit of the sharīʿa law.