The means employed by Nature to bring about the development of all the capacities of men is their antagonism in society, so far as this is, in the end, the cause of lawful order among men …
(Kant, Idea For A Universal History from
A Cosmopolitan Point Of View)1
What our laws show is the extent and degree to which conflict has to be suppressed.
(Alisdair MacIntyre, After Virtue)2
The rules which regulate the social life of a Kabyle village (thaddarth or tūfīq) form a body of law known as qānūn, plural: qawānīn.3 They are made by the assembly of the village, the jema‘a (in Berber, thajma‘th), although in the pre-colonial period it is possible that the jemāya‘ of some ‘aarsh made certain laws for the ‘arsh as a whole, while leaving the jemāya‘ of its constituent villages free to make their own local by-laws in all matters not dealt with at ‘arsh level.
If we examine the qawānīn recorded by Hanoteau and Letourneux in Greater Kabylia in the 1860s, we can see that the qānūn of a Kabyle village normally included the following types of law:
Most of the laws belonged to the first type. The qānūn of the village of Agouni n’Taslent, of ‘arsh Aqbil in the Jurjura, for example, had 249 articles, 219 of which were of type (i).5
It is probable that, in most cases, it was only with the arrival of the French in the region and in response to their enquiries that the qawānīn began to be recorded in documents. Most if not all of the qawānīn recorded by Hanoteau and Letourneux were in fact written down at their instigation.6 In the pre-colonial period, the qawānīn were generally not written down. Most lay Kabyles could not read or write and literacy was the preserve of the imrabdhen. That the qawānīn were unwritten did not mean that their existence was doubtful. A corollary of the fact that Kabyle culture was predominantly oral was the regular exercise given to the faculty of memory and the fact that it was possible to rely on this. The qawānīn would be committed to memory by the elders in each village and would be well known to the rest of the adult population.7
Moreover, in asking some of their informants to provide qawānīn of particular tribes, as distinct from villages, Hanoteau and Letourneux may well have induced what amounted to the invention of the tribal qānūn where this did not previously exist, at any rate in most cases,8 an early instance of the French tendency to abstract from the diversity and complexity of social reality in the quest for the ‘essence’ of the matter they were examining. This consideration clearly mandates caution in using these particular qawānīn as evidence. In many if not most cases, the qānūn thus attributed to an entire ‘arsh was in reality merely that of its most important village.9 It can accordingly be taken as evidence of a particular rule and practice but less surely of a whole ‘arsh’s subscription to this.
Nonetheless, in publishing the qawānīn that were transmitted to them by their informants in the course of their fieldwork in Greater Kabylia between 1858 and 1864, Hanoteau and Letourneux made accessible to others what is probably the most extensive corpus of Berber law available.10 Despite this wealth of evidence, the question of Kabyle law has been an immensely contested matter. Two quite different issues have been at stake in the controversy. The central issue in nineteenth-century French discussion of Kabyle law was the light it might be considered to shed on the broader questions of the relation of the Kabyles to the Islamic faith and their attitude to France. Quite different questions became central to the academic debate in the course of the twentieth century, namely the relationship between the qawānīn and Kabyle customs in general and the code of honour in particular.
The question of the relationship of Kabyle law to the Sharī‘a was linked, in the views of many French commentators, to the question of whether the Kabyles were genuinely Muslims or not. The latter question reflected, in turn, the abiding preoccupation of numerous nineteenth-century authors with the problem of assimilating Muslim Algerians within the French political framework. It came to be believed that the Kabyles, unlike ‘the Arabs’, were very susceptible to assimilation; this belief was largely predicated on the supposition that they were not ‘real’ Muslims, which in turn was premised on the supposition that Kabyle law was independent of and even opposed to Islamic law. In this context, three specific aspects of the qawānīn were at issue: their sources, their content and their origin.
Figure 3.1: Qānūn of Ath Ali ou Harzoun.
The most reasonable opinion in this matter was that put forward by Hanoteau and Letourneux. As they presented it, Kabyle law was derived from three distinct sources:
The first alone was derived ultimately from divine revelation; the second and third were based on general consent that was an emanation of popular sovereignty.12 Moreover, in certain respects, especially the question of inheritance, Kabyle law self-consciously differed from Islamic law, most notably in denying to women their right, guaranteed by the Sharī‘a, to a share in the inheritance of landed property.13
Hanoteau and Letourneux suggested that the un-Islamic element of Kabyle law was partly a survival and partly a revival of long-standing customs and practices, due to the failure of first the Arab and subsequently the Turkish conquests of the central Maghrib to extend fully into the mountains of Kabylia.14 They also suggested that the word qānūn, derived ultimately from the Greek, ‘seems to have been borrowed from the terminology of our early Church’.15 Masqueray for his part contented himself with insisting on the importance of the qawānīn among all three of the populations he considered in his book (Kabyles, Mzabis and Chaouia), quoting some qawānīn at length and remarking that their principal feature – the list specifying certain actions as forbidden by stipulating the penalties they incurred – resembled the interdicta of early Rome.16
These sober and for the most part factually accurate views of the matter subsequently gave way, however, to the far more tendentious interpretations of what became known as the Kabylophiles, who considered that the Kabyles were highly promising material for assimilation and elevated the perceived differences between Kabyle law and Quranic law into a major opposition of enormous significance. A characteristically histrionic statement of the more extreme and fanciful view was put forward by Camille Sabatier, who declared that
The unknown Lycurgus who dictated the Kabyle kanouns [sic] was neither of the family of Mohammed nor of Moses, but of that of Montesquieu and Condorcet. Even more than the skull of the Kabyle hillsmen, this work bears the mark of our race.17
As he also remarked,
Among the Kabyles, religion is absent; outwardly, it is true, the Kabyles profess their adherence to Islam, in reality the Kabyle is essentially anti-clerical. His kanouns [sic] are the most energetic negation of the fundamental principles of the Muslim code.18
Numerous similar statements are to be found in the outpourings of the late nineteenth-century French kabylophiles;19 exaggeration was their stock in trade.
The ideological and other reasons why many (but, it is important to note, by no means all) nineteenth-century French observers should have indulged in these far-fetched views have already been discussed in magisterial depth by Ageron and especially Patricia Lorcin and I shall not pursue that issue here. I must, however, give here my own view of the central matters in dispute.
First, the opposition these writers made between qānūn and Islamic law (the Sharī‘a) by no means implied that the Kabyles were not real (that is, sincere and devout) Muslims. The latter thesis, a key tenet of Sabatier and many others, was a non sequitur. The five pillars of the Islamic faith, the shahāda (bearing witness to the oneness of God), prayer, alms-giving, fasting during Ramadan and the pilgrimage to Mecca (hajj) were all respected by the Kabyles, even if only a small minority were able to make the hajj, and the main religious festivals of the Muslim calendar – the ‘Mouloud’, that is mawlid en-nabī, the Prophet’s birthday, as well as ‘īd el-fitr and ‘īd el-adhā and, curiously, the ‘āshūrā’20 – were all regularly celebrated.
Second, the notion that the qawānīn were a relic of Kabylia’s pre-Islamic (and especially Roman) past ignored the fact that the term qānūn had long since entered the Arabic language and that there was, accordingly, no need to postulate a direct, unmediated, derivation from the Greek or the Latin languages or the early Christian church to account for them.
Third, in so far as the Kabyle qawānīn enshrined as law important elements of custom, this was not in itself unusual, let alone confined to Berbers. ‘urf, meaning custom, is an Arabic word and the concept of ‘urfi law (law derived from custom) is widespread in the Arab world and a longstanding feature of tribal and especially Beduin society.21 It is also, for that matter, found in the Arabophone regions of Algeria itself.22 Thus the fact that they had other, customary, sources of law in addition to the Sharī‘a did not, in itself, distinguish the Kabyles from the other populations of the Algerian countryside.
Moreover, the opposition or conflict between Sharī‘a law and ‘urfi law posited by the purveyors of the Kabyle myth was, generally speaking, a false antithesis; the relationship between the two was mainly one of complementarity, in that ‘urfi law dealt with matters on which scripture was silent. The matter has been well explained by David Hart in his account of the role of tribal custom (known locally as izirf) as a source of law amongst the Berbers of south-eastern Morocco. ‘The Shari‘a and the izerf worked at different levels of society. The two were by no means diametrically opposed to each other as the French administration claimed.’23
Finally and above all, there was absolutely no recognition in the writings of the purveyors of the Kabyle myth that the concept of qānūn was a central feature of Ottoman law,24 where it indicated laws made by the ruling authority (the Sultan) and thus man-made, as distinct from the Sharī‘a originating in divine revelation. Moreover, as Sami Zubaida has pointed out, such ‘laws issued by the ruler were known as ‘urfi’ also.25
The existence of qānūn law in the Ottoman empire goes back at least as far as Mehmed II (1432–81 CE). According to Zubaida,
it was Mehmed II, conqueror of Constantinople, who issued the first historically recorded qanun-name. His first book specified taxes to be paid by the re‘aya, Muslim and Christian; his second promulgated administrative regulations for court and government. Neither makes any reference to the shari‘a.26
Thus there was nothing unusual, let alone un-Islamic, about the corpus of law governing a Muslim people including laws derived from custom rather than from the Sharī‘a. It was established practice in the heart of the Ottoman empire before this expanded to include what is now Algeria. That the Kabyles had qawānīn and that these embodied precepts derived from regional and local customs as well as precepts derived from scripture did not in themselves constitute evidence at all for the notion that they were bad Muslims, let alone ‘anti-clerical’.
It follows that what is to be explained is not the misconceived proposition that the Kabyles were in general heterodox or bad Muslims, but, on the contrary, the fact that, although perfectly devout Muslims in most respects, they nonetheless explicitly decided, at a definite moment in time, in the mid-eighteenth century CE, to depart from Islamic precepts in respect of their laws of inheritance. This is the ‘revival’ of ancient custom to which Hanoteau and Letourneux referred. It is a problem for the historian rather than the anthropologist and I shall address it in the penultimate chapter of this book.
Finally, regarding the origin of qānūn law in Kabylia, it seems to me to be far more likely that the Kabyles embodied their customary laws in something they called a qānūn in direct imitation of the observable practice of the Ottoman Regency from the mid-sixteenth century onwards, than that they did so in deference to a memory, mysteriously preserved over one and half millennia and countless generations, of the practice of the Roman empire or the early Christian church.
Two further questions which arise when we consider the qawānīn of the Kabyles have been at issue in the twentieth-century debates. First, are they properly to be regarded as law at all? Second, are they consistent with the segmentarity thesis? Clearly the answer to the second question depends to a large extent on the answer to the first.
Are the articles of the qawānīn laws? It was certainly the view of Masqueray and of Hanoteau and Letourneux that they were. Masqueray not only devoted many pages to a discussion of the ‘kanoun’ [sic] of the Mzabis, the Chaouia and the Kabyles, as we have seen, and explained at length how they resembled the early law of the Romans, but also explicitly translated the word as ‘law’, loi.27 Hanoteau and Letourneux for their part insisted on the existence of a system of law, droit, among the Kabyles,28 and their principal purpose in collecting and recording the qawānīn of Greater Kabylia was to facilitate the effective colonial government of the region on the basis of its own legal traditions.29
This clear-cut view of the matter has since gone by the board. The twentieth-century literature on Berber society conventionally distinguishes between Berber custom and Islamic law and tends very much to convey the impression that the Berbers had customs but not laws of their own. In this respect, if no other, this literature has endorsed the prejudices of the urban bourgeoisies of Algeria and Morocco. Gellner, for instance, contrasts the customs, qā‘ida (an Arabic word), of the central High Atlas Berbers of Morocco to the Shra‘a (i.e. Sharī‘a, Quranic law), and employs the terms ‘custom’ and ‘customary law’ interchangeably.30 Although Bourdieu, for his part, speaks at one point of the qawānīn of the Kabyles as ‘the laws that are laid down by (the village) council, which differ from Islamic law and which govern daily behaviour in great detail’,31 a passage which recalls the nineteenth-century view, he subsequently refers to the qawānīn as merely ‘a set of customs peculiar to each village’ and explicitly rejects the view that they constitute ‘a code of law’, insisting instead that ‘the group knows no other code than honour’.32
In other words, this question has become a grey area in the literature on Berber societies. The frequent employment of the term ‘customary law’ has allowed the issue to be evaded: is ‘customary law’ custom or law? While numerous scholars have been patently unclear about the matter, I shall state my own view in respect of the Kabyle case, which is that custom is one thing and law is another; that the Kabyles had both customs and laws (including laws derived from customs) and were moreover perfectly aware of the fact, even if they ultimately failed to convince latter-day European observers of it; and that the highest development of law in Kabylia occurred in the society of the Jurjura – that is, among the Igawawen.
The implication of the thesis that the Kabyles had laws is that they also had legislatures – that is specialist law-giving institutions – and courts. It is precisely the radical absence of such things which is one of the chief presuppositions of the segmentarity thesis. And, if Bourdieu ultimately came down on the side of the view that the Kabyle qānūn fell short of being a legal code, it is because he denied that the Kabyles possessed law courts worthy of the name, a denial contained in the following characteristic passage:
In reality, the group knows no other code than that of honour, which demands that the crime, whether murder, insult or adultery, should contain within itself its own punishment; it has no court of law other than public opinion; each individual passes sentence on himself in accordance with the common and inwardly felt code of the group, and without interference from any power placed outside or above. It will be objected that the council of the clan or village acts as a court of law, that it promulgates ‘a code of law’ (qanoun) that is sometimes put in writing, that it sees to the preservation of law and order and has at its disposal a whole system of punishments, penalties, reprisals and banishment. But rather than a court of law in the sense of a specialized organism charged with pronouncing verdicts in conformity with a system of formal, rational and explicit norms, the assembly is in fact a council of arbitration and perhaps even a family council.33
So two quite different ‘codes’ existed in some sense, but only one of them – the code of honour – had any force ‘in reality’. Bourdieu thus recognised the existence of two different codes, but regarded them not only as opposed but as mutually exclusive, such that the contradiction between them could be resolved only by dismissing one of them (the qānūn) as entirely insignificant. What this ruled out of consideration was the possibility that both codes had substantial force in reality and that the element of conflict in the relationship between them was not capable of being resolved once and for all by the definitive triumph of one over the other, but constituted a continuing problem for Kabyle society and the stuff of much of its political life.
Second, in the same way as Bourdieu assumed that the two codes in question were mutually exclusive, such that only one of them had any force ‘in reality’, he assumed that the functions of pronouncing a verdict and those of arbitration are also mutually exclusive, such that an institution which performs the latter cannot be credited with discharging the former and is therefore not to be regarded as a court of law. This assumption was entirely arbitrary and groundless, an affair of mere (if unspecific) dogma.
Moreover, it should be noted that Bourdieu was operating with a very demanding definition of a court of law. It is by no means only the jema‘a of a Kabyle village which falls short of this definition, which was clearly derived from the legal traditions with which Bourdieu, as a Frenchman, was familiar. In the English tradition of Common Law, there is no guarantee whatever that the jury’s verdict will be ‘in conformity with a system of formal, rational and explicit norms’ (my emphasis) and, given the emphatically adversarial nature of the relationship between prosecution and defence in this tradition, the function of the jury might well be described as, at least to some extent, that of acting as arbiter of what is at issue between the two sides of the case in dispute. While one may well be inclined to admit the superiority of Continental Law, it would be an audacious French sociologist indeed who claimed that an English court was not ‘in reality’ a court of law in the proper sense of the term.
Above all, however, Bourdieu’s argument rested on the systematic confusion between different levels of Kabyle social organisation. He did not speak specifically of the jema‘a of the village, but of ‘the council of the clan or village’, and thereby tacitly denied that there was any substantive difference between the two in their constitutive principles or their prerogatives. And when he said that ‘the group knows no other code than that of honour’, it should not (but may easily) be forgotten that the group which Bourdieu had in mind was in fact not the village at all but the clan, which, he claimed elsewhere, was ‘the real political unit’.34
In this way the whole question has been thoroughly muddled. For, while it is certainly the case that informal jemāya‘ of a kind exist intermittently at the level of the clan (adrum) and indeed at levels below this, there is no question whatever of these jemāya‘ having the function of promulgating articles of the qānūn or of ensuring that they are enforced and their transgression penalised. By refusing to consider the significance and status of the qānūn in relation explicitly and specifically to the jema‘a of the village alone, Bourdieu succeeded in confusing the issue completely, in a way which marked not a theoretical advance on but a regression from the clarity of his nineteenth-century predecessors’ treatment of these questions. The fact of the matter is that the jema‘a of a Kabyle village, at any rate in the Jurjura, most certainly did perform the functions both of legislature and of law court, as Masqueray and also Hanoteau and Letourneux observed, and that Bourdieu’s dismissal of the earlier view was unaccompanied by the slightest attempt at an empirical refutation of it.
This refusal to take seriously the earlier view may well have been prompted in part by Masqueray’s unsatisfactory formulation of it.
Bourdieu’s view of the relationship between the legal code of the qānūn on the one hand and the code of honour on the other, namely that the former was of very limited and superficial significance and the latter alone had real substance, represented an attempt to resolve theoretically the contradiction inherent in this relationship. But it was not the first such attempt. Eighty years before him Masqueray also attempted to resolve this contradiction, but in the opposite direction.
Speaking generally of ‘the city among our sedentary Africans’ (by which he clearly meant the peoples of the Maghrib alone) and notably of the Kabyle thaddarth, the Chaoui thaqelath [sic],35 the Mzabi ‘arsh and the Moroccan tireremt [sic],36 he insisted that these ‘cities’ transcend the solidarities and divisions of the kinship groups out of which they have been constituted. As he remarked in his introduction,
… far from being an extension of the narrow institutions of the family, they develop outside them and are even opposed to them from the first moment of their existence … 37
In this he was, in a sense, quite right, at least in respect of the Kabyle thaddarth, as we shall see presently. But he then went on to claim that ‘the City’
… is composed only of individuals, it knows only individuals, it protects and punishes only individuals … it has, as soon as it is formed, the character of being the expression of individual energies.38
It would be difficult to imagine a statement more thoroughly at odds with the segmentarist conception of Berber society in general and with Bourdieu’s emphasis on the role of the clan in Kabyle society in particular. It is not surprising, then, that Gellner, in arguing that Masqueray’s description of Kabylia was that of a segmentary society even if he was subjectively inhibited from recognising the fact, should call this ‘a very strange passage’39 and suggest that it ‘is in conflict with [Masqueray’s] own material’.40
There is another way of reading Masqueray’s statement which resolves the apparent conflict between it and his empirical material, as we shall see. But there is no doubt that, at first sight, Masqueray appears here to have advanced an extreme and indefensible position. It would certainly seem that, in recognising (unlike Bourdieu and Gellner) that one of the pillars of the Kabyle system of village self-government was a legal system incorporating a code of law worthy of the name, Masqueray was led to deny all significance to the kinship groups – families, lineages, clans – which composed the population of the village and which were the principal bearers of the ideology of honour and thus the upholders of the code of honour in opposition to the code of law.
In the light of this, Bourdieu’s solution to the theoretical problem posed by the law/honour dichotomy in Kabylia appears as merely the obverse of Masqueray’s earlier solution. Each of them seems to have tried to solve the problem by suppressing one of the terms of the dichotomy. Neither of them, apparently, has managed to cope theoretically with the contradiction which existed in reality.
The Kabyles coped with it politically. And the way in which they did this is embodied in the qawānīn themselves, in so far as the qawānīn recognised the code of honour and accommodated the kinship rivalries it expressed by bringing them within the sphere of law and thereby curbed their anti-social potential.
The extreme physical proximity of unrelated lineages in the Igawawen thaddarth furnished an unending series of occasions for friction and disputes between them. Unless this fact was compensated for, the thaddarth would have quickly fallen prey to these kinship conflicts, which were liable to be both more frequent and more intense than those arising within the far less integrated form of settlement of the tūfīq. The thaddarth coped with this problem in three main ways.
The first of these I have already discussed, namely the fact that the jema‘a of the thaddarth, by functioning whenever necessary as a court of law, made available to all families resident in the village the means of resolving disputes by orderly litigation. The second was the way in which the jema‘a actively encouraged all parties to proceed in this way, by penalising the recourse to violence. The third was the way in which alternative outlets for the expression of kinship solidarities and rivalries were provided by the operation of the saff system, a point I shall develop presently. Let us consider the second point, which is a much misunderstood matter.
Without exception, the qawānīn of Kabyle villages and tribes included articles which stipulated the penalties for the exchange of blows and the proffering of threats and even insults. These articles were usually very detailed, with distinct penalties – that is, fines, to be paid to the village chest, not the injured party – for each offence, specified normally by the nature of the weapon employed or brandished (as indicating the offender’s intention) rather than the nature of the injury actually inflicted, but also by other circumstances (e.g. the time and place of the offence). Hanoteau and Letourneux cite numerous qānūn articles from a wide range of Kabyle villages to illustrate this. Amongst those drawn from the Igawawen villages we find the following stipulations and penalties:
The philosophy underlying the highly discriminating penal codes in force can more easily be inferred from the following articles of the qānūn of the Ath Wakour, a small ‘arsh, consisting of only two villages, whose ‘tribal’ qānūn was probably simply that of the larger village, Thaddarth el-Jedid:
Art.17. |
He who threatens with a firearm in a dispute pays two and a half douros fine; if he fires, five douros. |
18. |
He who brings a sword into a dispute, but does not use it, pays three francs and six sous fine; if he strikes with it, the fine is six francs and six sous. |
19. |
He who threatens with a little pick-axe, but without striking, pays three francs and six sous fine; if he strikes, the fine is six francs and six sous. |
He who hits with a stick pays a half-douro fine. |
|
21. |
He who threatens with a stone, but without striking, pays one franc and six sous fine; if he strikes, the fine is a half-douro. |
22. |
If two men exchange abuse, each of them pays ten sous fine. |
23. |
Whoever has violated the ‘anāya of the jema‘a pays two and a half douros fine.42 |
Thus the different forms of violence were specified and a sliding scale was employed. (A douro equalled five francs; one franc equalled twenty sous or a hundred centimes.43) It should be noted that acts of violence or exchanges of insults which were committed in the jema‘a, in the sense of public place of assembly, were deemed to violate its ‘anāya (the protection it affords in virtue of the consideration it is due) and were punished more severely in consequence. The jema‘a is the domain of reason and reasonable men, and the qānūn afforded it special protection, as the public space par excellence.
It is also interesting to note that the exchange of blows and insults were punished less severely than offences against property, notably acts of theft, arson and housebreaking, for which, among the Ath Wakour, the penalties were invariably an affair of douros, not francs, ranging from three to twenty-five. The qawānīn of the Igawawen were, if anything, even more severe in this regard:
The evident implication of this contrast is that it was recognised that frictions and enmities and their violent expression were routine (as they are, of course, in ‘modern’ societies), and could not be suppressed, but could be subject to official condemnation and financial penalty. That is, the jema‘a knew better than to try to prevent such things but could and did at least discourage them by legal means. Theft, on the other hand, of olives or figs from someone’s orchard and especially of animals (mules, goats, sheep) and above all where housebreaking was involved, was taken far more seriously. The far higher fines incurred established these acts as crimes rather than misdemeanours, as acts of dishonesty, in contrast to the eminently honest business of expressing one’s feelings about someone in words or blows.
The point about theft, housebreaking and so on is that they were legitimate and counted as honest acts only in the state of war, and it was a major purpose of the jema‘a of a Kabyle village to prevent a state of war from developing between any of its constituent families, to prevent – that is to say – the feud.
Sociologists and anthropologists who subscribe to or have been influenced by the propositions of the segmentarity theory have often argued that the feud is itself an order-maintaining mechanism. And they have had no difficulty in showing that feuding in many societies, including Berber societies, has been subject to its own internal rules of a kind. The same is true, of course, or at any rate used to be true, of war between states. There have long been rules of war and there is the Geneva Convention. But, if feuding is in some sense an order-maintaining mechanism, it is a very different one from the business of political argument and negotiation, legislative enactment and judicial process. It is an alternative to them and is subversive of them. This has been recognised by Evans-Pritchard, in his remark that ‘corporate life is incompatible with a state of feud’.45
Now, Gellner himself has acknowledged that even in the tribal society of the Central High Atlas of Morocco ‘groups of about village size (300 people or so) are not “purely” segmentary but do have a corporate existence vis-à-vis individuals or sub-groups’.46 And what holds good of small settlements among the predominantly transhumant and economically undiversified populations of the Moroccan Atlas is, a fortiori, very likely to be even more true of the very much larger villages of the entirely sedentary and economically more diversified Kabyles. But the implications of this point have been contested by Jeanne Favret in her assertion that, in the penal sphere, the Kabyle village (which, as we have seen, she mistakenly insisted on referring to as a ‘patrilignage’)
constitutes a corporation which sees to it that its moral order is not transgressed by its members, and which obliges its segments to assume their responsibilities, which is to say, to return blow for blow.
The corporation referred to by British anthropologists re-establishes a necessary peace between hostile lineage segments … The Kabyle corporation, on the contrary, precipitates violence in the case where its segments would like to remain in peace.47
The great difficulty with this assertion is one which Favret herself appears to recognise when she remarks, at the very end of her article, that ‘it would remain to explain … how compact villages can subsist as distinct residential units’.48 Indeed it would, were her statement, that the Kabyle village regularly and deliberately precipitated conflict between its constituent lineages, at all accurate. It isn’t.
More than any one other thing, the survival of the Kabyle thaddarth – and, above all, of the large and complex thaddarth of the Igawawen – depended upon its ability as a corporation to prevent or at least curb feuding among its constituent clans and lineages. Far from encouraging feuds, it inhibited and in some cases outlawed and punished feuding behaviour; it sought by pre-emptive measures to render recourse to it unnecessary and it afforded alternative, political, outlets to the impulses which would otherwise have expressed themselves in it.
The first two ways in which the thaddarth sought to prevent feuding were embodied in the qawānīn. The qānūn of the Ath Mansour tribe of the Wad Sahel had no fewer than 120 articles. The 88th read as follows:
Whoever has committed a murder without having the right pays sixty douros, and he alone is killed, or is banished. Among us murder is expiated by direct murder. He who transgresses this rule, and, for compensation, kills one of the relatives of the murderer of his relative, exercises a personal vengeance; and it is why we have written that whoever commits a murder is alone killed, without the murder being taken out on another. If the murderer dies before having suffered vengeance, the heirs of the victim have no compensation to claim of them,49
‘them’ in this context being presumably the relatives of the deceased murderer.
So killing was not always a crime; there were cases where killing was lawful. Kabyle law recognised the ‘blood debt’ – that is, the right and even obligation of revenge (reqba50) up to a point – and revenge – the principle of ‘an eye for a eye’ – against a murderer was accordingly lawful. As the qānūn of Agouni n’Taslent put it, ‘There is no punishment for the man who exercises vengeance following a blood debt’.51 But indirect revenge, the killing of a relative in lieu of the murderer himself – the characteristic and fundamental act of feud – was, among the Ath Mansour, a crime.
This may, however, be an extreme case. By no means all the villages and tribes of Kabylia had qawānīn which were as explicit as this in outlawing the feud. Hanoteau and Letourneux cite only three instances drawn from the populations of the northern side of the Jurjura of similar restrictions being placed on the exercise of the right/obligation of reqba, allowing rightful revenge to be taken on the murderer alone and outlawing its exercise against his agnates. These are found in the qānūn of ‘arsh Ath Khelifa of the Maatqa confederation,52 that of ‘arsh Ath Ameur ou Faïd of the Ath Aissi confederation53 and that of Ighil Imoula of the Ath Sedqa confederation.54 To these we can add the important village of Taourirt Amoqran, of ‘arsh Ath Ousammeur of the Ath Irathen confederation; the relevant articles of its qānūn read:
When a murder is committed, it is the murderer who must die; if he dies accidentally, his successors incur the blood price.
He who, contrary to the law, kills someone other than the murderer, pays 100 reals and incurs the death penalty.55
It is possible that, in much of Kabylia, the right of the family of a murder victim to take revenge on any of the murderer’s adult male kin was generally uncontested in principle. But in many cases this formal recognition of the right to resort to feud was tempered and partially negated by an effort to circumscribe this right by means of limiting conditions. One way this was done was by distinguishing between those homicides which entailed a right of revenge and those which did not. Thus we find qawānīn that explicitly stipulate that accidental homicides but also certain deliberate killings – for example, that of a burglar by a house owner defending his home – do not expose the perpetrator to the menace of reqba and that if the kinsmen of the victim in such cases seek revenge they are themselves committing an offence punishable by a stiff fine.56
More generally, the concern to pre-empt feuding was evident in many cases, in so far as certain kinds of killing were decreed to be unlawful and subject to penalties imposed by the jema‘a, thereby obviating and in principle precluding action by the bereaved family. These penalties varied with the gravity of the offence and with the tribe or village in question, but certainly included death in some cases. For example, the 38th article of the qānūn of the Imecheddalen tribe, immediate neighbours to the west of the Ath Wakour, decreed that
Whoever is convicted of having served a poisoned meal by malefice, either to a man or to a woman, or to an old man or to a child, pays five douros fine and is stoned to death.57
The same law existed among the ‘arsh Ath Khelifa of the Maatqa confederation58 but the Ath Fraoucen had a different version, imposing a very stiff fine of 50 réals whether or not the victim succumbed, but apparently not presuming to execute the offender.59
An especially significant instance of pre-emption concerned killings of kin motivated by the desire to inherit from the victim. These were generally outlawed very explicitly and punished with severity. Among the populations of the north side of the Jurjura, the rule was that the jema‘a, in addition to confiscating all of the offender’s property (and in some cases slaughtering his flocks) or at least imposing very stiff fines, inflicted the further punishment of demolishing his house and banishing him from the village.60 Among the Ath Boudrar, an Igawawen ‘arsh in the most restricted sense, matters were taken much further. Article 3 of the qānūn of the village of Ath Ali ou Harzoun states:
He who kills his father, his brother or his son with the intention of inheriting from him is put to death, if he is arrested; if he escapes, all his property is confiscated by the jema‘a.61
A similar severity obtained among the Ath Qani of the southern side of the Jurjura; articles 15 and 16 of their qānūn stipulated that:
If someone kills one of his relatives in order to inherit from him, the jema‘a puts him to death, and appropriates both the goods of the dead man and those of his murderer.
If the murderer has escaped and left the region, he cannot return.62
Thus treacherous killing and killing for an inherited gain were not regarded as justified by the claims of honour. Yet these were precisely the sorts of killing which would be likely to precipitate a feud if the jema‘a did not punish them itself. Moreover, we should bear in mind that, as Favret has pointed out, an implication of the Kabyle system of land tenure, as a consequence of the right of pre-emption of real estate (shefa‘a) accorded to agnates, was that
one can hope to acquire (land) only from one’s closest agnates – in other words, one has an interest in getting them into debt in order to push them into selling; economic competition therefore exists only within the village and between agnates …63
It follows that in Kabyle society there would have existed a substantial incentive to kill close agnates for material gain, were this not subject to severe penalties imposed by the community.
There is a very striking contrast with the Berbers of the Moroccan Rif on this point. For, as David Hart has amply documented for the largest of the Rifian Berber tribes, the Aïth Waryaghar, amongst whom the blood feud was a permanent fact of life for practically all families, feuding frequently occurred precisely within the family itself or the immediate lineage because motivated in many cases by the struggle over landed inheritance. The qānūn of the Aïth Waryaghar contains no article prohibiting such killings and the serving of poisoned food or drink was apparently an entirely legitimate tactic.64
Another kind of killing which was explicitly outlawed by at least some Kabyle tribes was that of a man by his wife. The Ath Aïssa tribe, southern neighbours of the Imecheddalen, stipulated in the 36th article of their qānūn that ‘The woman who kills her husband is stoned by the notables of the jema‘a until death ensues.’65 In other words, the husband’s household was not allowed to exact vengeance for itself. ‘Vengeance is mine,’ said the jema‘a, almost certainly for the same reason as in the other cases cited. A marriage is an alliance between two families, which often belong, moreover, to different lineages and different clans and occasionally different villages. The killing of a man by his wife would not merely signal the definitive and disastrous collapse of such an alliance, it might well precipitate a feud between the families (lineages, clans, villages) in question unless the jema‘a stepped in smartly and inflicted punishment in the interest of the community as a whole.
There can be little doubt that the outlawing in Kabylia of these various kinds of killing was intended to prevent feuding and that their punishment by the jema‘a, by pre-empting private vengeance, had the same purpose. This purpose was probably only imperfectly realised. There is no reason to doubt that the reports of feuding in the nineteenth-century literature on Kabylia had a solid basis in fact. But these reports did not always distinguish between the kinds of killing which, as we have seen, the Kabyle jema‘a was inclined to regard as honourable and also lawful and those which it stigmatised as neither and accordingly punished. And the fact that killings of the latter, unlawful, variety occurred does not mean that the attempts to prevent and pre-empt them were vain, any more than the incidence of murder in a modern state can be cited as proof of the vanity of the laws which define it as a crime. Murder as such cannot be entirely prevented, but many individual murders are punished and murder as such is inhibited by this fact.
There can be also little doubt that the incidence of feud killings in Kabylia was much lower than in the Moroccan Rif, where no attempt was made to deter them. Neither the qānūn of the Aïth Waryaghar, for example, nor those of its neighbours contain any articles outlawing or seeking to pre-empt feuding.66 The only attempt to control feuding was the outlawing of killing on market day (and, in some cases, on the day before and the day after as well, to take account of the time some people spent travelling to and from markets).67 And this limit was clearly motivated by the concern to preserve the functioning of the markets from violent disruption rather than the concern to inhibit feuding as such, which was evidently accepted by all and sundry as a fact of everyday adult life. (Moreover, we should note the significant fact that the stiff fines – haqq – imposed for transgressing this rule were shared out between the ‘five fifths’ – khams khmas – of which the tribe was composed, not deposited in a village or tribal treasury for the benefit of the community as a whole, as in Kabylia.68)
The jema‘a of a Kabyle village did not have the moral authority to outlaw, let alone the power actually to prevent, all kinds of killing. The strong impression conveyed by the qawānīn of the various villages and tribes is that they condoned or, at least, did not condemn certain kinds of killing in order to be able to outlaw other kinds, in what amounted to a trade-off. The killings condoned were those judged to be rightful because honourable. Thus the code of law recognised the code of honour. But it did not subordinate itself to it, as in the Rif. On the contrary, it incorporated it and subsumed it and thereby subordinated it to itself. It accepted the practice of reqba as a fact of Kabyle life, but undertook to regulate it. It was for the jema‘a to judge whether a killing claimed to be required by the code of honour was indeed such.
In other words, considerations of honour entered into the functioning of the Kabyle legal system as arguments in court. And, in establishing as crimes the various kinds of killing which were dishonourable either in motive (to gain an inheritance) or in spirit (the treacherous killing of a husband by his wife, from whom absolute loyalty was expected) or in method (the treacherous serving of poisoned food or drink, in violation of the honourable code of hospitality) and by stipulating the severest penalties (banishment or even death) for them, the jema‘a simultaneously transformed an offence against a particular person (and, by extension, a particular kinship group) into a crime against society and pre-empted the recourse by relatives of the victim to honourable revenge, in the general interest of the community as a whole.
So Favret’s claim that, in Kabylia, ‘the right of the lineage prevails over the right of the village’69 is the opposite of the truth, at any rate in the case of those populations among whom the large, complex, thaddarth characteristic of the Igawawen prevailed. It is in the Rif that her claim would apply. Amongst the Aïth Waryaghar and their neighbours, political life is (or at any rate used to be) extremely rudimentary by Kabyle standards and, in consequence, the old motto of the English Mosley family – ‘mos legem regit’: ‘custom rules the law’70 – also holds good. The qawānīn of the Rifians do not outlaw or even try to pre-empt the feud at all; they merely seek to impose – in the interest of a minimum of regular commercial activity – a single limitation of time and place upon the otherwise entirely unfettered and legitimate business of killing.
In Kabylia, lex mores regit. The qawānīn neither meekly endorsed nor vainly opposed the dictates of the code of honour. They incorporated them selectively in a remarkable and entirely functional compromise between the public interest and the private interest. And the tendency apparent within this formal compromise was unquestionably for the code of law to prevail over, in the sense of governing the operation of, the code of honour. And what this meant in the long run was that the very conception of honourable behaviour in a Kabyle village was influenced by the conception of lawful behaviour.
I began this chapter with a quotation from Kant. It seems to me that one way in which one may express the difference between populations, including Berber-speaking populations, to which the segmentarity theory might conceivably apply and those, notably the Kabyles, to which it does not is that in the one case the antagonisms between kinship groups are not yet, or at any rate not fully, what Kant meant by ‘antagonism in society’, whereas in the other case they are precisely this. While in some theoretical sense of other it may be legitimate to speak of the ‘society’ of the Rifian Berbers, this ‘society’ – with its absence of villages, its population of scattered family households and the permanent and omnipresent blood-feud – resembles in certain fundamental respects Hobbes’s vision of the ‘State of Nature’, of ‘bellum omnium contra omnes’, where there exist
no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.71
In Kabylia, and amongst the Igawawen above all, ‘society’ in no way resembles Hobbes’s ‘State of Nature’, because it is in the first place a society of large, densely settled, extremely compact and strictly governed villages. Bourdieu’s claim that ‘up to a relatively recent date the clan (adrum) was the framework in which social life developed’72 was nonsensical as well as untrue. If it were true, then there would have been no social life as such, merely family life and its extension in the life of the extended family which is the clan. Social life begins where the limits of kinship are met, and crossed. These limits were and still are met and crossed as a matter of daily routine in the Igawawen thaddarth.
Kant develops the fifth in the series of theses referred to above with the reflection that
All culture, art which adorns mankind, and the finest social order are fruits of unsociableness, which forces itself to discipline itself, and so, by a contrived art, to develop the natural seeds of perfection.73
The unsociableness of the Aïth Waryaghar did not force itself to discipline itself, other than in the most rudimentary and marginal way, but that of the Igawawen did precisely this, by inserting politics, the quintessence of sociableness, into its own core. The disciplining of Igawawen unsociableness was precisely a matter of ‘a contrived art’ – the political art, the empirical and innovative art of contriving arrangements by which to govern vital social forces – by means of which it ensured that the particular interests which divided the inhabitants of an Igawawen village expressed themselves as antagonisms in society and not as antagonisms which precluded society or subverted it.
The principal arenas in which these antagonisms expressed themselves were the jemāya‘.
