The burying of the hatchets was part of the diplomatic culture among the Iroquois Five Nations of northeastern North America. In negotiating with outsiders, they refer to burying hatchets in a deep hole, over which they planted a tree to symbolize peace. This localized Iroquois custom was encountered by European settlers in the seventeenth century, and later entered the English language as a metaphor for reconciliation.[1]
Three centuries earlier, a similar legal ritual of burial, dafn, was described by the Mamlūk bureaucrat Ibn Faḍlallāh al-ʿUmarī (d. 1349). As with the Iroquois, this was a ritualistic burial that formed part of the customary laws of tribal communities. It led to reconciliation between two groups, the Bedouin equivalent of written peace treaties.
The account of the dafn ritual is included in al-ʿUmarī’s administrative manual, al-Taʿrīf bi’l-muṣṭalaḥ al-sharīf, in the chapter dealing with laissez-passer documents (amānāt) and truces (hudan). After giving a formulaic text of an amān, literally safe-conduct but here a peace treaty exchanged among kings, al-ʿUmarī explains that Arab tribesmen (ʿurbān) are only reconciled once a binding dafn ritual has taken place.[2]
The procedure of the dafn was as follows: The leaders of the tribe (qabīla) that is going to grant forgiveness meet in the presence of a group of people trusted by the person who is to be forgiven (al-madfūn la-hu). One of them rises and says: “We ask that you forgive this person, who admits to such-and-such crimes.” Then the person who is granting his forgiveness digs a small hole in the ground and says: “I have thrown the crimes of this person, for which I have avenged him, and I have buried them in this hole.” Then the soil of the hole in the ground is handed over to him, so he can bury the crimes with his own hands.
Al-ʿUmarī emphasizes that this ritual is not recorded in writing, but rather attested by the physical presence of the leaders of the two groups. However, he then proceeds to provide a formulaic text of a dafn, in which a sultan declares to have symbolically buried the crimes of a person under his royal foot, erasing them from his memory “in the manner of the Arabs.”
The first modern scholar to note the importance of this fascinating passage appears to be Jospeh Chelhod, who even devoted to it a brief entry in the Encyclopaedia of Islam. Here, Chelhod commented that the practice seems to have completely disappeared in the modern period, and that it is only attested by al-ʿUmarī.[3]
A few years later Chelhod found a description of a very similar Bedouin legal ritual in the diary of Fatḥ Allāh al-Ṣāyigh, who travelled among the Bedouin tribes of the Syrian and Iraqi deserts between 1810 and 1814. Fatḥ Allāh reports to have witnessed a ceremony in which two tribal Shaykhs symbolically buried pebbles to mark the end of their disagreements, then stamped on the levelled soil with their feet and spat on it. The tribesmen explained to him that this burial is their custom (ʿāda), and that the pebbles symbolize the accusations directed against ʿAlī in Kufa. The burying of the pebbles indicated that the matter is dead and will not be mentioned, and the spitting over them is like spitting on the devil.[4]
Echoes of this legal ritual are also found in ethnographies and documents of the twentieth century. In the 1940s, French colonial administrators tried to restore peace between warring tribes in the Syrian desert through a customary settlement of ḥafr wa-dafn.[5] This seems to be a localised custom of the Syrian desert, not attested elsewhere. In modern ethnographies from the Arabian Peninsula and from the Negev, one finds the ritual of “burying pebbles” to have a somewhat different meaning. Rather than a reconciliation ritual, the burying or throwing away of pebbles determines the nature and limits of a case brought before a tribal judge.[6]
Al-ʿUmarī’s account of dafn is a rare medieval attestation to rituals associated with the procedures of “tribal law.” Ritualism is one of the distinctive hallmarks of current tribal customary law in Greater Syria, most dramatically exemplified by the bishʿa ordeal of licking a burning metal rod. We cannot presume that all legal rituals present today were also found among fourteenth-century tribal communities. But in the case of dafn at least, a continuity from the medieval period does seem likely.
One could end this post here, simply (and simplistically) concluding that Bedouin tribal law existed since time immemorial. But such a conclusion would be too rash. It doesn’t explain what drove al-ʿUmarī to include an account of the dafn ritual in his administrative manual, nor why we have no earlier accounts of dafn in legal literature.
In the context of the Mamlūk Sultanate of the fourteenth century, al-ʿUmarī was undoubtedly trying to elevate the rituals of tribal law in the Syrian desert to the same rank as the documentary tools of Islamic legal culture. He regarded himself as a descendant of the Arab tribe of the Banū ʿUmar, and sought to infuse the court with what he understood to be Arab values. For him, the dafn ritual was more powerful than an amān document, yet was in need of translation into writing in order to be admitted to the practice of the Mamlūk court.
Al-ʿUmarī’s attempt to incorporate the dafn into formal legal practice was unconventional, perhaps unprecedented. His successor in the Mamlūk bureaucracy, Ibn Nāẓir al-Jaysh, noted that he has never seen any text recording a royal dafn except in al-ʿUmarī’s Taʿrīf. He also thought that no actual document of this sort has ever been written, and that al-ʿUmarī made this text up for future reference.[7]
A generation later, al-Qalqashandī (d. 1418) rebuked Ibn Nāẓir al-Jaysh for this criticism of al-ʿUmarī. Even if no dafn proclamations were ever issued by a Mamlūk sultan, al-Qalqashnadī remonstrated, it was still the best way to give assurance to Arab tribesmen (ʿurbān), as it follows the patterns of behavior with which they are familiar.[8]
Like al-ʿUmarī, al-Qalqashandī also viewed himself part of Arab tribal milieu, and composed encyclopaedias of Arab tribal names.[9] In their treatment of the dafn ritual, they both recognized and respected a distinct ritualistic legal sphere of the Arab tribesmen, an unwritten legal culture separate from that of the Mamlūk court and, it seems, also from the courts of the qāḍīs.
As far as I know, no earlier source mentions the dafn ritual, not even among the Jāhiliyya Arabs. This is quite surprising, as the hadīth collections and the ‘Abbāsīd literary anthologies are replete with the customs of the Arabs, their hospitality and their horse riding skills.[10] Like the disinheritance of women, the dafn ritual first emerges in our sources as a tribal custom in the thirteenth or fourteenth centuries. Rather than assuming an uninterrupted history going back to the pre-Islam, it is quite likely that this ritual only emerged in the late Middle Ages.
Al-ʿUmarī and al-Qalqashandī represent a pivotal moment in the articulation of Arab identity. They, as well as other Mamlūk-era authors, identified certain legal institutions, such as disinheritance of females and the symbolic dafn burial of blame, as constituting a distinct tribal legal community. Such legal dimensions of “Bedouin-ness” were novel, and suggest a transformation in the way rural communities interacted with Islamic law and with the state.
It was then, perhaps, that “Customary Law” came into being as a legal sphere that ran in parallel to the Sharīʿa. Early Islamic law had no notion that Muslim rural communities, whether nomadic or sedentary, which were somehow outside the realm of the Islamic law administered by the qāḍīs. By the fifteenth century, this has become a common topos, reflecting a real divergence between the law of the towns and the law of the countryside.
Notes:
[1] Timothy Shannon, “Iroquoia,” in The Oxford Handbook of American Indian History, ed. Frederick E. Hoxie (Oxford: Oxford University Press, 2016), 201.
[2] Aḥmad ibn Yaḥyá Ibn Faḍl Allāh al-ʿUmarī, al-Taʿrīf bi-al-muṣṭalaḥ al-sharīf (Miṣr: Maṭbaʿat al-ʿĀṣimah, 1312 AH), 165-67.
[3] Joseph Chelhod, “al-D̲h̲unūb, Dafn,” in Encyclopaedia of Islam, 2nd ed., eds. P. Bearman, Th. Bianquis, C.E. Bosworth, E. van Donzel and W.P. Heinrichs (Brill, 2012), http://dx.doi.org/10.1163/1573-3912_islam_SIM_1838.
[4] Fatḥ Allāh ibn Anṭūn Ibn al-Ṣāʾigh, Riḥlat Fatḥ Allāh al-Ṣāyigh al-Ḥalabī ilá bādiyat al-Shām wa-ṣaḥārá al-ʿIrāq wa-al-ʿAjam wa-al-Jazīrah al-ʻArabīyah, ed. Y. Chelhod (Damascus: Dār Ṭalās li’l-Dirāsāt wa-al-Tarjamah wa-al-Nashr, 1991), 23, 189.
[5] Katharina Lange, “‘Bedouin’ and ‘Shawaya’: The Performative Constitution of Tribal Identities in Syria during the French Mandate and Today,” Journal of the Economic and Social History of the Orient 58, nos. 1–2 (April 10, 2015): 219.
[6] Saad Sowayan, “Customary Law in Arabia: An Ethno-Historical Perspective,” Paper Presented to the Conference on Customary Law in the Middle East and North Africa, Princeton University, May 13-14, 2006; Sasson Bar-Zvi, The Jurisdiction among the Negev Bedouins [in Hebrew] (Tel Aviv: Ministry of Defence, 1991), 17.
[7] Ibn Naẓir al-Jaysh, Kitāb tathqīf al-taʿrīf bi’l-muṣṭalaḥ al-sharīf, ed. Rudolf Veselý (Le Caire: Institut Français d’Archéologie Orientale, 1987), 179.
[8] Aḥmad ibn ʿAlī al-Qalqashandī, Kitāb ṣubḥ al-aʿshá (Cairo: Dār al-Kutub al-Khidīwīyah, 1331 – 1340 AH), 13:355.
[9] al-Qalqashandī, Qalāʾid al-jumān fī al-taʿrīf bi-qabāʾil ʿarab al- zamān (al-Qāhirah: Dār al-Ḥadīth, 1963); al-Qalqashandī, Nihāyat al-arab fī maʻrifat ansāb al-ʿarab (Baghdad: Maṭbaʿat al-Najāh,̣ 1958).
[10] In Ibn Qutaybah’s Excellence of the Arabs, the only reference to legal practice is a verse by Zuhayr ibn Abī Sulmā (d. ca. AD 609): “Rights are settled by three things – oath, judgment (nifār) or proof (jalāʾ).” The verse demonstrates how Zuhayr foresaw the principles of the Sharīʿa. ʻAbd Allāh ibn Muslim Ibn Qutaybah, The excellence of the Arabs, trans. and eds. Sarah Savant and Peter Webb (New York: New York University Press, 2017), 2.9.16.