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Rossi’s Kitāb al-Sinna: A Seventeenth-Century Note of Tribal Law in Yemen

Paul Dresch

Résumés

Plusieurs textes sur le droit coutumier, non islamique, ont été recueillis par des chercheurs travaillant sur le Yémen. Peu d'entre eux sont accessibles et encore moins ont été publiés. Ils représentent une tradition, ou un ensemble de traditions, associées en particulier aux zones tribales du Yémen, et remontant à l’antiquité. Il est important de diffuser cette documentation, non seulement pour ceux qui s'intéressent à l'histoire du pays, mais aussi pour ceux qui font des études comparatives entre le droit savant et le droit coutumier. Le présent article propose une traduction annotée d'un de ces textes, recueilli par Ettore Rossi dans les années 1930. Le texte lui‑même, qui a été copié pour Rossi, est daté de 1059/1649, et proviendrait de Khawlān al‑Tiyyāl.

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Texte intégral

  • 1 For a description of this longer text see Serjeant, 1950, p. 589‑91. For mentions of the “corpus” (...)
  • 2 I am extremely grateful to Giovanni Canova for finding three of the Rossi texts in Rome, when many (...)

1In 1948 Ettore Rossi published an article on the customary law of the tribes of Yemen, in which he described four manuscripts he had found at the turn of 1937‑8 when based in Sana’a. So far as I know, he did nothing more with them. Rossi died in 1955. He did, however, pass on copies to R.B. Serjeant, who himself had found a much longer, more sophisticated text in Hadramaut, dealing with the same topic. Serjeant often referred to a “corpus” of tribal law, on which he worked for years, but did not manage to publish the texts either.1 He died in 1993. Most of the relevant material that should be in Serjeant’s papers at the University of Edinburgh is missing. Rossi’s texts in Rome are not catalogued and have proved quite difficult to track down.2 It seems important to place these texts, somehow, in the public domain where those interested in Yemen can use them, and where people more competent than myself can analyse their content. The present article offers a provisional reading of one of them, Kitāb al‑sinna wa‑l‑ṣāyiba.

  • 3 For example Dresch, 2012, 2014, 2015.
  • 4 Pitt‑Rivers, 1977.

2Aspects of the Rossi and Serjeant texts have been touched on before, and some of the texts have been quoted in discussions of tribal law aimed at a broader audience.3 There is no need to repeat most of this. Suffice it to say that the earlier texts refer to such material as aḥkām al‑manʿ, roughly “the laws of protection”, and much turns on the prescriptive ability (both a right and an obligation) of tribesmen to protect each other when in need and to protect non‑tribal persons such as servitors. The former case seems particularly striking to an anthropologist, falling as it does under Pitt‑Rivers’s general analysis of hospitality as an alternation of roles:4 I can be your host / protector today, you can be mine tomorrow, and our common recognition of this fact is what gives each of us our social status. The term jār (neighbour, pl. jīrān) can be used of both protector and protégé, although the former may instead be called mujawwir. It is also used, sometimes confusingly because no explanation is given, of a non‑tribal dependant, such as an hereditary servitor, who is, so to speak, always a guest of the tribes and can never be host in his own name. The tribesman, unlike the servitor, has manʿ, the moral capacity to protect others, which is not a term used in the text addressed here although the idea itself is apparent.

3The phrase ḥukm al‑manʿ occurs in Ibn al‑Mujāwir (c. AD. 1200), who unfortunately gives no detail but says the “Arabs” of Yemen preferred this form of law to Islamic law (sharīʿah). In later times one finds a sometimes intense rhetoric of condemnation, not least from learned Zaydis, whereby tribal customary law is equated with (un‑Islamic) ṭāghūt. This kind of rhetoric was widespread when Rossi worked in Sana’a, and one imagines that a good deal of patience was needed to establish people’s trust. Whatever the case, he describes the first of his finds, which I deal with in the present piece, as follows:

  • 5 Rossi, 1948, p. 17.

Copy of a Kitāb as‑sinnah (according to local pronunciation) wa ’ṣ‑ṣā’ibah wa ’l‑ʿurf al‑jārī attributed to the naqīb ʿAbd al‑Rabb ibn Ḥātim al‑Jabrī Ṣayyāṭ. There are twenty‑seven pages, copied for me in a semi‑dialect Arabic from a manuscript dated 1059 AH, concerning the customary norms of Bakīl and Ḥāshid, and provided by me with a transcription in the Latin alphabet and sundry notes.5

4Bakīl and Ḥāshid, of course, are the two major groupings of tribes in areas mainly north and east of Sana’a. Sinna, like the classical Sunna, is that which is correct and established practice, and the title Kitāb al‑sinna wa‑l‑ṣāyiba might be translated as “The Book of Usage and Right”. Neither the Arabic nor the Latin‑alphabet transcription is always easy to read, and sometimes they seem not to agree precisely. It is difficult at times to be sure of Rossi’s pencilled notes, which are simply scattered marginalia. I have only quoted them where useful. In general I shall therefore proceed cautiously and try to keep clear where it is that doubts arise.

  • 6 Rossi’s competence, it should go without saying, is not all in doubt. And, given how short his ass (...)
  • 7 I have not inserted hamzas where the text omits them. Nor have I usually added or deleted terms ev (...)

5The Arabic text is as Rossi presents it, with a few admitted guesses and a very occasional correction where, for instance, I think a letter has been omitted. (Rossi, remember, did not formally edit the text, and the original no doubt contained many errors; what we have was probably dashed off under pressure of time).6 Where need be, these guesses and corrections are explained in the notes to the translation, which also explain those terms that are not standard Arabic, and give references to secondary literature where the terms and institutions at issue are explored further. In the Arabic text, a few cautious corrections have been made without discussion, simply for ease of reading: for example, replacing an upright terminal alif with the usual form of alif maqṣūra and standardising the supporting letters (alif, waw or ) where classically there would be a hamza.7 I have used the transliteration usual to Arabian Humanities rather than Rossi’s scheme, which of course was directed to readers of Italian. References to dictionaries such as Landberg’s Glossaire datînois and al‑Iryānī’s al‑Muʿjam al‑yamanī fī al‑lugha wa‑l‑turāth assume one is looking up roots alphabetically, and I therefore do not give page numbers. Section headings have been added for convenience, but the numbering of paragraphs is not that which Rossi gives in his pencilled notes.

  • 8 For a brief account of the period, largely drawn from al‑Jarmūzī’s al‑Ṭabaq al‑ḥalwā, see Serjeant (...)

6There is mention in the text of Khawlān, which seems to be where it was written, and one assumes this means Khawlān al‑Ṭiyyāl, which is a grouping of tribes just east of Sana’a. The name al‑Jabrī might well connect with Banī Jabr, a constituent of Khawlān al‑Ṭiyyāl, but the surname Ṣayyaṭ is not known to me. Although the title naqīb is held by a number of shaykhly families (that is, families of tribal leaders), I have not come across this family in the obvious reference works. At the time the text was composed, the Qasimi state was at the height of its powers, the Zaydi imam of the day was al‑Mutawakkil Ismāʿīl and the Zaydi imamate controlled, however loosely, all Lower Yemen; it would soon conquer areas as far away as Yāfiʿi and Hadramaut.8 Despite al‑Mutawakkil’s success, there is no reason to suppose he attempted very detailed administration of most tribal areas. We know that Aḥmad ʿAlī al‑ʿAnsī kept control of the local zakāt at Jabal Baraṭ with al‑Mutawakkil’s agreement, and the chronicles suggest that, in most places, at most levels of activity, there was the same coexistence of “customary” and “Islamic” terms and ideals as one finds at other periods of history. The text at hand is in some ways crude. Unusually for what amounts to a statement of customary law, however, it is clearly dated, and it represents at least part of a tradition, or set of traditions, that lasts many centuries but is often ignored in scholarly accounts. We must hope that, after the current political horrors end, the study of Yemen’s history will begin again. We must also hope that, when it does so, it tries to encompass more than kings and battles, or the lives of scholars.

7Before offering an attempt at translation, we should mention two points that may be confusing to readers unfamiliar with tribal law. The first is that payments go to the person or group offended, not to a “community” or some equivalent of the state: when arbitrators or guarantors are due amends (section 10), it is for an insult to them personally, because their honour is affected by, for instance, the breach of a truce that they established. The victims may also be due more than ordinary compensation, but in neither case can one speak of a top‑down “fine” as one might with certain Maghrebi laws. The second point is that, to put this briefly, insult comes before injury. If a gesture of appeasement is made (sections 1, 2, 8), or an injury is afterwards defined as unintentional (sections 11, 15, 16), the compensation due is very much reduced.

Arabic text

Introduction

8هذا كتاب السنة والصايبة والعرف الجاري المسمّى في الشرعية الطاغوت الذي مرت عليه اسلافنا وهو شرع القبايل العرف الجاري بين حاشدي وبكيلي من قول النقيب عبد الرب ابن حاتم الجبري المكنّى صياط المؤرخ بسنة تسعة وخمسين وألف من الهجرة النبوية

9وهذه الواجبات المسماية احكام السنة والصايبة والعرف بين قاتل ومقتول وفاعل ومفعول وسارق ومسروق وعايب ومعيب وزاري ومزرى (مزري) وطالب ومطلوب وناهب ومنهوب

10وافعال كاينة وافعال كاذبة والصوعات والروعات والطيب والصلح بين قبيلة لقبيلة وبين غريم وغريمه وما يجب في احكام النسا على الرجال وما يجب على الرجال لنسا وما يلزم على الهجرة للمهجرين له وما يلزم المهجرين للهجرة والجار لجاره مثل الدوشان والخدام والذمي ما يلزم لهم وعليهم وشيخ ومشايخين له

11ودية الكلب وارشه وافعال العجاما مثل الضان والبقر والجمال والحمير ونحوها من القراش وغارب ومعتدي وما تلا من الامور الصغار فيها قول متولي العرف تحتاج عقل وفراسة وسياسة وما يلزم في البيضا والنقا والدحن والمضا والجر في الغوا

1) killing

12اولا واجبة حكم قاتل لمقتول ثور يعقروه من القاتل فوق قبر المقتول ويسلم لاهله اربعين ريال من النقد المتعامل عليه ويعد صلح سنة فان وفت السنة وقد استقضا ولي القتل فله مثلما عليه وان عاد ولي القتل لم استطاع يستقضى فيساق له من القاتل راسين غنم وخمسة ريال في راس كل سنة وان طلب ولي القتل الدية فله مايتين ريال غير الجبات الماضية هذا ان كان قتل نقا وان كان قتل عيب فهو مربوع وقطع يد العايب

2) offending

13وفاعل ومفعول ان كان الفعل فيه اروش دم فللمفعول تهجوره براسين غنم ويستقيم له من ارشه الثلثين وان كان فعل بغير دم واروش ففي الملطام ثور وعشرة ريال ومثل نصفها في كذابات الدقن

3) theft

14وسارق ومسروق اذا كانت دعوا لم يثبتها بشهادة فعلى المسروق الخمسة مقبلة ان ما ادعاه انه صادق فيه ويحلفو خمسة اشخاص من اختارهم السارق واحتمل ما ادعاوه به قليل او كبير وان عجز المسروق عن ذلك فعلى المدعا بسرق خمسة مقبلة يحلفو له خمسة اشخاص من اختارهم المسروق وقنع بها وينجا من دعوا السرق

4) shame

15وعايب ومعيب ان كان في طريق فعلى العايب الى الطريق خراب بيته وقطع يده اليمان وتسليم الدية العرفية مربوعة ومن عيب في ضم صلح بين قبيلة وقبيلة فعليه العايب تسليم الغالي وهي ثمان مأة ريال لا غير

5) reviling women

16واما دعوا الزرا[اذا] ادعت واحدة من النسا ان رجلا قال لها يريد يزني بها فلها من الرجل المدعا به راسين غنم تشويف وخمسة ريال كسوتها قال العرف من ادعا الزرا شله هذا ان كانت الدعوا من غير بينة وان كان قد فعل بها المدعا عقدا له بها وسلم مهرها جبرا على الطرفين

6) seeking amends

17وطالب ومطلوب اذا كان الطالب طلب السنة والصايبة على العرف عند الشيخ المتولي على غريمه المطلوب وامتنع المطلوب فكان حقه وما معه وراسه هدار مباح حتى يبدل السنة والصايبة ويردوه عشيرته واصحابه وما قد صار عليه ليس فيه حكم ولو يقتل كاسر السنة لا له حق ولا دية ولا حشم وان ممتثل لسنة والصواب فهو وما معه محترم ويناصف غريمه الطالب اما دخل بسنة والا خرج بسنة

7) seizing property

18وناهب ومنهوب معناها واحد الاخذ والنهب واخذ وماخوذ فان اخذ على الماخوذ من قبيلة الى قبيلة فأن وقع طلب من الماخوذ ودعا وجيه العرب فيما اخذوه عليه فللاخذين عشأهم مما اخذوه وارجعو ما بقى وان سكت الماخوذ فله ان يستقضى بما اخذوه ولو باكثر او اقل فلا له ولا عليه وان كان الاخذ لغريم مخصوص غير قبيلة لقبيلة فعليه ارجاع ما اخذه ومثله هجر للماخوذ ولو بشلة بيضا ونقا

8) physical and attempted offences

19وافعال كاينة وافعال كاذبة فاما الكاينة ففيها حشم للمفعول ثور وسباعي مقام الثور راسين من الغنم الضان والسباعي خمسة ريال من النقد والفعل الكاذب ان كان عقده بالقتل اما رماه واخطاه او مشر فوقه سلاح وليس اتصل به فقد لزمه دية السلامة وهي ثلاثة ماية وثلث يسقط منها ثلثين ويبقى ثلث واسقاط الثلثين في مقابل عقيرة راس من الضان هجر مفعول السلامة

9) upsets and alarms

20اما الصوعات والروعات هي مثلاً احد هجم على الاخر الى بيته والا (او الا) طريق حتى فجعوه هو واهله وعشيرته وليس احدا اتصل به ولا اخذوا عليه شئ لاكن قد افتجع فان كان وحده فله خمسة وعشرون ماية من البقش المتعاملة بها التجار يقوم صرف الماية ريالين ونصف وان كان هو واهله وعشيرته فلهم راس بقر يعقروه في بلدهم ومثل نصف الخمسة والعشرون من النقد

10) reconciliation

21واما الطيب هو النقا والصلح اذا كان الحرب بين قبيلة وقبيلة اخرة واقبلت واصطة وجعلوه هدنة صلح ايام معلومة الى وجيه الروسا (الراسا) من الفريقين فعليهم تمام المدة وان لاحد منهم زيادة قتول او اروش فاذا وقع من احدهما تعدى اما بفعل اروش او قتل فهو يسمّى عيب فعلى من تعدى في ضم الصلح ولو قبل وفات المدة بيوم فما فعله فهو مربّع ويسمّى عايب ويلزم عليه تهجور اهل الوجيه الروسا الذي كانت القواعد على وجيههم لكل واحد منهم ثور العيب وينشرو عليه البيضا والنقا الى كل سوق من اسواق حاشد وبكيل وتشتل عليه جميع القبايل حتى يوفا بهجر العيوب لجميع الروسا

11) offences involving women

22واما احكام النسا على الرجال فان فعلت في الرجل اروش فليس عليها حشم الا نصف الاروش لا غير وان كان خطا كلام فليس عليها شئ انّ سلاح المراة لسانها وان كان الخطا او الفعل من الرجل فعليه تشويفها راس غنم من الضان وكسوتها لا غير وان احد الرجال قتل من النسا فعليه دية المراة مثل نصف دية الرجل الدية العرفية ان كان قتلها خطا وان كان عمدا فهو يسمّى عيب لزمه المربّع والتشويف والمربوع هو نصف ما يلزم لرجل

12) the hijra

23واما احكام هجرة ومهجّر فان اخطا الهجرة على المهجرين له بكلام او بفعل او بقتل فعليه المربّع من خطا كلام او اروش او قتل مربوع ما يلزم على ساير الناس وان كان الخطا او الفعل باروش او قتل من المهجّرين فله مثلما عليه والهجرة هو الشيخ الراس على قومه او السيد على العرب او امين المحل او الفقيه المقدّم لصلاه او رجل ليس معه عشيرة مهجّر نفسه لا يعتضد مع احدً او عبد قوم مثل الدوشان والخدام مملوكين لناس جميع

13) dhimmīs

24واما الذمي هو جار ان فعل في اسياده لزم قتله وان احد فعل فيه فحشمه وارشه ودمه مملوك لاسياده ليس له شيء وديته خمسة ريال لا غيرلاسياده

14) dogs

25واما دية الكلب فهي سبعة ريال للمالكين له ان [كان] قتله من الدبر وان كان قتله من القدام فلا يلزم فيه دية لانه اذا كان قتله من القدام فهو معتدي فليس للمعتدي جناية وان كان قتله من الدبر فهو هارب لزم الفاعل ديته وهي سبعة ريال لا غير

15) livestock

26واما احكام من فعل في العجاما وتعدا اليها مثل البقر والضان والحمير والجمال وغيرها من المملوكات التي هي في محبّة ابن ادم جعلها الًله سبحانه وتعالى في محبة عبده ابن ادم فان كان الفعل من رجل فعليه قيمتها ومثلها حشم ما تقلد به صاحب القارشة وان كان الفعل من امراة فليس عليها الا قيمتها لا غير هذا اذا كان الفعل (الفاعل) عمد وان كان خطا فيسمّى غاربة غير العمد فيها ثلث يسقط على صاحب القارشة وثلثين على الفاعل وان كان قارشة تقتل قارشة فلقاتله بالمقتولة اذا كان جنس واحد وان كان القاتلة من القراش جنس اخر مثل جمل قتل راس من الضان او من البقر او من الحمير فلا يلزم الا قيمة المفعول على صاحب الفاعل

16) mistaken harm

27واما فعل الغاربة ان كان قتل فعلى القاتل ثلثين الدية وثلث يسقط على صاحب القتل لانه غاربة بغير اختيار ولا تعمّد وان كانت اروش فيسقط منها الثلث وان كان معتدي فيلزم الدية العرفية في القتل هذا ان كان نزع الشيطان في فتنة وثور الهجيم فوق القبر كما ذكرناه سبقاً والجبات حتى يقضا له او تتسلم ديته وكذلك الافعال مثل الاروش وغيرها

17) bayḍā wa‑khayār

28واما البيضا والخيار فهي بيرق ابيض راس عصا يشتل على كاسر (راس) السنة والصايبة والعرف الجاري ويمضو بها الى الاسواق حق حاشد وبكيل حتى تشتل جميع العرب على كاسرها (راسها) حتى يضبطوه وكل ما وقع فيه او في ما له فهو مباح حتى يسلم ما حكم عليه شيخ العرف فهذه [هي] الببيضا والنقا وكذلك العايب ما تديه وتضبطه الا البيضا والنقا وما تجتمع جميع العرب الا بالبيضا والخيار

18) appeal against judgement

29واما الدحن والمضا فهو عند القبال بين غريم وغريمه بطرف شيخ العرف يمضي قوله المدعًي فيما ادعاه بالمقبلة واما الجر في الغوا فهو اذا اراد احد الغرما يجر الشيخ المتولي والغريم الى طرف المراغة المتعاملة عليه جميع خولان او غيرهم من حاشد وبكيل فعلى الغريم الجرّ ان يطرح للشيخ المتولي عكّاز خمسة بنادق او عشر بنادق او عشرين بندق او اربعين بندق على قدر الدعوا فاكبرها اربعين بندق واصغرها خمس بنادق ردادة ان صح قول المتولى وحكمه فعلى الغريم تهجور المتولى وان يخرب قوله المراغة فلا يلزم شيء ارجعوه حقه الطرح

19) the cursèd jinns

30وهذا مقال المراغة المذكور ان معه ثلاثة من خدمة ابليس اللعين من الجان الاول اسمه مطيبزان والثاني مشيعبان والثالث منيدمان فان كان من مطيبزان فعله يطبز الغريمان وقامو للفتنة والقتلة حتى يسقط القتل من اعدا الغرما وتاخر مطيبزان

31وقام بعده مشيعبان ويشعب لكل غريم وحده ويقول له قسما يا الله لا اغرم ما معي وامضّي قولي واخرج الكباش والبر والسمن وجلب المشايخ والعيان وشعّب للاخر مثله حتى يخلصو ما معهم وتاخر مشيعبان

32واقبل منيدمان وكل واحد يدخل له وحده و قال يا ندماه لو انا اسلمت حقي الكباش والبر والسمن واكله الى راس انا وجهالي اضبح (اصبح) حقي وروحي والثاني يقول (يقل) يا ندماه لو انا جمعت عقلي ولو(ولا) فعلت مقتول وغرمت حقي والان الخطاب في راسي ياندماه وكل واحد منهما يبكي في مكانه

Conclusion

33حتى ان الشيخ المتولي ما يخرج الحكم من لسانه الا وقد الغرما خالصين ولا احد منهم يخالف قول الشيخ حتى انه تسمّى هذا الكتاب الطاغوت اكثره (اكثر) عمل الشيطان عليه لعنة الله ولاكن كان ما كان عليه الابا والاجداد واما الامور الصغار فهي على العقل والفراسة والسياسة والسلام

Translation and notes

Introduction

This is the Book of Usage and Right, the current (jārī, effective, or binding) custom, known in Islamic law as ṭāghūt, which our forefathers followed. It is the law of the tribes, the custom current among Ḥāshid and Bakīl, according to the Naqīb ʿAbd al‑Rabb bin Ḥātim al‑Jabrī, surnamed Ṣayyāṭ, dated to the year one thousand and fifty‑nine of the Prophet’s hijra [AD. 1649].

These duties, known as the laws of usage and right, [are] the custom [governing affairs] between a killer and one killed, one who wounds and the one wounded, a thief and the one stolen from, one who commits disgrace and one who suffers disgrace, the reviler and one reviled, one seeking [amends] and one sought from, one who takes and the one taken from.

[Such custom governs] physical and attempted offences, upsets and alarms, appeasement and truce between tribe and tribe or between one party [to a dispute] and the other, and what must be done in judgements for men against women and for women against men. [It deals with] what is due from the hijra to those protecting it, and from those protecting it (al‑muhajjirīn la‑hu) to the hijra, and from the neighbour to a protected person such as a dawshān or a servitor or a dhimmī, what is due to them and from them. And [between] a shaykh and his tribesmen.

34Physical and attempted offences, afʿāl kāyina wa‑kādhiba (see section 8, below). Rossi has a note suggesting “al‑ṣādiqa avvenuta” for kāyina. In tribal usage, however, not only does faʿl (classical fiʿl) itself often mean a wound, rather than an action or even a wrong, but kawn is a common term for a physical wound (see both Landberg and al‑Iryānī). The meaning of kādhiba is clear enough from context, but I have not seen it used in this sense elsewhere, and some broader meaning may be at issue, such as “virtual” or “nominal”.

35Upsets and alarms, ṣawʿāt wa‑rawʿāt. Landberg gives “remuer” for ṣawwaʿa and “tourmenter” for a related verb form.

36Appeasement. Rossi transcribes this as ṭīb, but I suspect the word is ṭayyib, the phrase ṭayyib al‑nufūs being commonly used in recent decades of appeasement or settlement.

  • 9 See Dresch, 1989, index.

37A hijra is a protected place, event, person or set of persons.9 .

  • 10 Dresch, 1989, p. 120‑21, 406‑7.

38A dhimmī here would be one of the Jews under tribal protection. A dawshān is one of an hereditary group of heralds or messengers.10

And the blood‑money of a dog and its wound‑money. And offences against livestock such as sheep, cows, camels, donkeys and suchlike flocks. Also, persons injured mistakenly and their aggressor, and what small things ensue [that] require intelligence, discernment and policy in judgement from one administering custom. [Also] what is needed in bayḍā’ wa‑naqā, and rebuttal and assertion, and drawing [to fresh judgement] in error.

  • 11 serjeant, 1974, p. 63.

39Livestock such as sheep, al‑ʿajāmā mithl al‑ḍān. Presumably ʿajāmā might mean creatures that low or bellow. Serjeant gives ʿajma as equivalent to qurāsh,11 which occurs in section 15. In a note Rossi explains the term ḍān (classical, ḍa’n) as “gli ovine in genere”.

  • 12 See Dresch, 1987.

40Bayḍā wa‑naqā (see also sections 7, 9 and 17, below), literally “whiteness” and “absolution” or “good name”, a procedure whereby persons are summonsed by the injured party, usually for some shameful action, such as failing in the duties of escort.12 The next two phrases (daḥn wa‑maḍā and al‑jarr fī al‑ghawā) are equally formulaic.

1) killing

First, the duties in law / judgement of a killer and the person killed. [People] from the killer’s [side] must slaughter a bull on the grave of the person killed and pay his people forty riyāls in cash to deal with it, and a year’s truce is established. If a year passes [i.e. if the truce is upheld for a year] and the dead man’s heir has demanded (istaqḍā, i.e. has accepted payment in principle) then what is due to him is due from him [i.e. no fresh violence is allowed from either side].

41The bull on the dead man’s grave corresponds to thawr al‑hajīm (“the bull of violence”, or “of the victim”) in section 16, below. It remains standard practice these days, and until this gesture of appeasement is agreed upon there can be no talk of blood‑money.

42The script in this section is clear but the phrasing is not. Istaqḍā (demanded, required) presumably means the dead man’s heir has declined revenge and instead claimed payment. If it meant “took vengeance”, as the verb sometimes can mean, then the rest of the paragraph, with its provisions for payment, would make little sense.

  • 13 Cf. Dresch, 2006, p. 242.

43A requirement that blood‑debts not be settled in one instalment is common in tribal law.13 It does not seem likely, however, that any reciprocal payment is due at the end of the year’s truce. “What is due to him is due from him” surely refers instead to the need for both sides to preserve the peace, and means that whoever attacked the other during the truce would owe amends.

If the dead man’s heir still cannot demand, then he is due from the killer two head of sheep and five riyāls at the start of each year. If the dead man’s heir seeks blood‑money, he is due two hundred riyāls apart from the previous payments. This is if there is honourable [straightforward] killing (qatl naqā). If it is shameful killing, [payment] is [due] fourfold, and he committing the shame has his hand severed.

44Still cannot demand, ʿād … lam istaṭāʿa …. Presumably because the killer’s people cannot raise the funds, although possibly because the dead man’s kin do not agree among themselves. Small but regular payments are then made by the killer’s people to show willing and thus maintain peaceful relations with the dead man’s kin.

45Payments (“pagamenti”), jibāt. It may be there should be a tashdīd, though Rossi gives none. Landberg explains jabba as “casser”, and Kazimirski gives “couper”, suggesting a portion or instalment separated from the whole. Al‑Iryānī, however, explains jabā as a present or gift, and Landberg gives “prélever l’impôt”. Whether such instalments are deducted from the full blood‑money or taken in addition is not clear from other sources.

  • 14 al‑Akwaʿ, 1995, p. 39

46Fourfold, marbūʿ. Early texts on tribal law simply double the payment in such cases, and it is unclear when the idea is established of payment fourfold. It is present in a document from Baraṭ that may date originally from about the same time as Kitāb al‑sinna.14

  • 15 Rossi, 1948, p. 19, 20, 31; Dresch, 2014, p. 117.

47Severing the culprit’s hand. Corporal punishment is vanishingly rare in tribal law, although a man’s own tribesmen are required to kill him in response to certain foul offences on his part.15 Presumably his fellow tribesmen are the ones to sever his hand. For a discussion of “shameful killing” see section 4, below.

2) offending

One offending and the one offended. If the offence requires wound‑money for blood, the one wounded is due tahjūr of two head of sheep and his wound‑money is reckoned at two‑thirds. If the offence does not involve blood and [thus] wound‑money, the person struck is owed a bull and ten riyāls, and the same amount [is due] in cases of insult.

  • 16 See Dresch, 1989, p. 147.

48Tahjūr, or in recent times more commonly tahjīr (compare the term hijra), is in effect a payment for the insult of attacking someone, a means of appeasement that allows the case to be settled honourably.16

  • 17 Cf. Dresch, 2014, p. 114; Abū Ghānim, 1985, p. 378.

49Cases of insult, kadhdhābāt al‑diqn. Diqn of course means a beard, and Rossi notes that “la frase kadhab diqn‑ak è il piú grande insulto, l’offeso suole attaccare con il pugnale”. Perhaps what is involved here is “giving the lie” to someone (kadhdhāb, after all, means liar), perhaps offences against the actual beard,17 or perhaps insults more generally. The last of these seems most likely.

3) theft

The thief and the one stolen from. If there is a claim not confirmed by [first‑hand] testimony, the person [claiming to have been] stolen from must provide five supporters [to affirm] that what he alleges is true. Five persons chosen by the man [accused of] stealing must swear and are liable for what is claimed whether little or much. If the person stolen from [or claiming to have been stolen from] fails in this [i.e. fails to find five people to swear], then the person summonsed for theft must find five supporters. Five persons, chosen by the man stolen from, must swear. He [the claimant] is satisfied by this, and [the man accused] is cleared of the accusation of theft.

50Supporters, muqabbila. Rossi explains muqabbil here as “testimone a favore”. The wording is again unclear, but compurgation is common practice. If I accuse you of something, and the truth is not self‑evident or proven by eye witnesses, I can name five men from your tribe or section to swear as to whether or not you did what I claim you did. In cases of wounding twenty‑two oaths may be needed, and forty‑four in a case of killing.

4) shame

One committing shame and the one shamed. If it is on the road, the one committing shame on the road has his house destroyed and his right hand severed. The customary blood‑money is paid fourfold. Whoever commits shame during a truce between tribe and tribe, the one committing shame must pay the cost, which is eight hundred riyāls, none other.

51Shame, ʿayb. This would typically be an offence that breached some pre‑existing right such as escort or guaranty. Roads do not usually have a special status (unless leading to a market on market‑day), but nor does this phrase seem likely to mean just anywhere. The same contrast between roads and truce is drawn in the fourth of the texts Rossi found, Kitāb al‑aslāf wa‑l‑aʿrāf (folio 3).

52800 riyāls seems a great deal for a breach of truce. Although it is very unclear how much was ever paid as compensation among the tribes, or even, in many cases, what people thought the proper compensation should have been, the blood‑money for killing envisaged in section 1, above, is only 200 riyāls, and the maximum in section 8 below is 333 1/3. Perhaps 800 is payment fourfold of the usual rate, and killing while at truce thus simply parallels killing on the road.

53Although both provisions here envisage killing, the same idea of multiplying payments applies to non‑fatal offences of all kinds committed in shameful circumstances. Compare section 10, below.

5) reviling women

As for a summons of revilement, if a woman claims that a man said to her he wanted to fornicate with her, she is owed by the man summonsed two head of sheep for tashwīf and five riyāls for a dress. Custom says that whoever alleges revilement takes it [or is taken by it; i.e. he must pay]. This is if the summons is without proof. If the man summonsed has formed an agreement with her, he pays her bridewealth to conciliate the two parties.

54Revilement, zarā. There is an obvious temptation to read zinā. Rossi’s Latin transcription is clear, however, and zarā, or zarr, recurs in the same context in another of his texts, Kitāb al‑aslāf (folio 11), which says that only a woman may make such a claim.

  • 18 Dresch, 2006, p. 79, 185, 227.

55Tashwīf, from shawfa, a woman (see e.g. al‑Iryānī). Despite the seemingly clear derivation, the term may have a wider use,18 but here it describes typical amends to women, which seem always to include dress‑material or money for the same.

56Takes it / is taken. Here we are guessing. Given how irregular the orthography is, the verb iddaʿā is masculine but might be active or passive. Shalla, as al‑Iryānī says, is a basic, everyday word for “to take” (Rossi’s transcription is shallah, with a tashdīd), but al‑Iryānī also gives the noun shalah to mean “surprise” or “regret”. God knows the author’s intent. Kitāb al‑aslāf applies the term zarr not only to improper suggestions but to cases where a woman claims to have been struck. Even if the man accused swears his innocence, he owes a sheep; if he fails his oath, he owes more. This may be what is meant here by shalla‑hu. He is liable through mere accusation.

57Formed … an agreement, qad faʿala bi‑hā ʿaqdan. One suspects that what is meant is “formed an attachment”, in the sense of “had (sexual) relations”. If ʿaqd meant marriage, which is Rossi’s reading, it would be almost a tautology that bridewealth be paid. On the other hand, if the meaning were “if he did it with her (faʿala …bi‑hā), he must marry her”, one would expect ʿalay‑hi ʿaqd, not la‑hu.

6) seeking amends

One seeking [amends] and one sought from. If the one seeking (al‑ṭālib) seeks usage and right from his antagonist, the one sought from (al‑maṭlūb), according to custom from a shaykh dealing [with the case], and the man sought from refuses [to pay what the arbitrator has judged he should], then his [the debtor’s] right and possessions and head [i.e. his life] are due no recompense and are open (mubāḥ, i.e. to attack) until he hands over [what is due according to] usage and right. His tribe and his fellows reject him, and no judgement is due for whatever befalls him; even if he is killed in breach of usage he is due no right, no blood‑money and no shame‑money. If he submits to usage and right [i.e. agrees to pay what is due], then he and his property are respected, and he compensates his antagonist, the person seeking, whether entering sinna or leaving sinna.

  • 19 Dresch, 2006, p. 78‑9, 2012, p. 167‑8.

58In breach of usage, kāsir al‑sinna (or perhaps, one who breaches usage, in which case we should read qatala‑hu). In later documents from Baraṭ, the term sinna can mean something like the earlier manʿ, the rightful capacity to protect, and thus specific ties of protection such as escort or guaranty.19 It may be that what is meant here (but I consider it unlikely) is that the person refusing to pay what he owes is open to attack even if he is, or now becomes, someone else’s protégé.

  • 20 For ḥashm see also al‑Sudumī, 1993, p. 52, 55, 122.

59Shame‑money ḥashm. Rossi explains ḥashm as “la protezione dovuta a uomo, l’onore suo, il suo valore, o prezzo”. For certain types of offence, or offences in certain circumstances, it is common to pay twice the usual amount, the first part (compensation for the physical harm) being dam or “blood”, the second (amends for the insult) being dhamm or ḥashm. 20

60Entering or leaving. Plainly Rossi was unsure what to make of this (he transcribes the terms as simply dakhal and kharaj, not clearly showing where they fit in the sentence). His note at the top of the page seems to say “bi‑sinnah: sia esso condannato sia l'accusa provata = (dakhal) o no (kharaj)”. Sinna here may simply mean “usage” (hence “what according to usage is due”) and the process of judgement and recompense. As noted above, however, the term might possibly refer to relations such as guaranty. The meaning would then be that parties to the dispute are at peace whether one or both of them now enter the protection of some third party or whether such protection ends.

7) seizing property

One seizing [property] and one seized from. The meaning is one, seizing [property] and taking [i.e. no distinction is made between nahb and akhdh], and taking and taken from. If something is taken from someone, by one tribe from another, and the person taken from asks [restitution] and lodges a summons with the notables of the Arabs for what they [the other tribe] took from him, then those who took [the property] have their supper from it and return what remains.

  • 21 See Dresch, 1989, p. 90‑2, 95‑6.

61Notables, wajīh, literally “faces”, that is shaykhs who act, or can act, as guarantors for their men.21 The “Arabs” are the ordinary tribesmen. Someone from tribe A has something taken by a person in tribe B and goes to the shaykhs of tribe B asking that it be returned. The shaykhs of tribe B then extract it from the offender and return it to the claimant, keeping something (“their supper”) for the trouble they have gone to. Rossi says “quanto serve loro per cena (1 capo ogni 5 persone)”, but one doubts that “supper” is meant literally.

If the person taken from stayed quiet [at the time], he can [nonetheless] claim [later] what they took, whether much or little, and nothing is due to him or from him [for delaying the claim]. If the taking was by a particular antagonist, not tribe against tribe, he [the one who took it] must return it and [pay] amends like it [i.e. of the same value] to the person taken from, even for a taking in bayḍā wa‑naqā.

62Stayed quiet. Rossi has for sakata, “abbandona, lascia”. He also has a note saying, “cioe se non reclama avra poi il diritto di prendere …” after lā la‑hu wa‑lā ʿalay‑hi, but almost certainly what the latter phrase denies is that delay means any further payment either way beyond the value of what was taken in the first place, or that amount doubled.

63Amends, hajar, cf. tahjūr, section 2, above. Rossi says here that hajar = ḥashm (section 6, above), “ammenda, riperazione”.

64Bayḍā wa‑naqā. Again, a formal process to extract amends. The sentence seems to say that even if one has such a formal claim in progress one cannot just seize another man’s possessions. This is odd, however, in that someone who refuses to submit to judgement after a summons by bayḍā wa‑khayār has no rights (section 17), so other people surely could take from him. Possibly it means instead that the victim is due restitution, and “even” bayḍa wa‑khayār is justified to obtain it.

8) physical and attempted offences

Physical and attempted offences. As for physical offences [i.e. where an actual wound is inflicted], the person offended against is due shame‑money of a bull and a subā`ī, accompanied by two head of small stock, [to be precise] sheep, and the subāʿī is five riyāls in cash. [As for] an attempted offence, if it is a matter of [attempted] killing, whether shooting and missing or drawing a weapon that does not make contact, then he is due the blood‑money of safety, which is three hundred and a third [i.e. 333 1/3 riyāls]. Two thirds of this is dropped, a third remains. The two thirds dropped are in return for a slaughter‑beast (ʿaqīra), a head of sheep, as hajar for the person attacked but unharmed.

65Physical and attempted, kāyina wa‑kādhiba. See the notes to the text’s introductory passages, above. Shame‑money, ḥashm, see section 6.

  • 22 Dresch, 2006, p. 225.

66In later texts from Jabal Baraṭ, subāʿī is used of camels, probably meaning the animal is full‑grown,22 and it may be that either wa‑ in the text here, “a bull and a subāʿī,” is wrong or the word subāʿī needs to be repeated. The Baraṭ text explains an accompanying subāʿiyya as a length of cloth, but the accompanying subāʿī here is cash. I cannot suggest an origin for the term, although it occurs in many places other than Yemen.

67Accompanied by. The meaning of maqām is uncertain, and an obvious interpretation might be that the bull is worth two sheep. In recent times, however, “a bull and two sheep” has been a standard payment of amends, as stereotyped a phrase as the English “meat and two veg”.

68Drawing a weapon, mashar silāḥ. Rossi has a note describing the victim of assault as “danneggiato”, but the point is precisely that no physical harm is done. For mashara meaning to draw a dagger see also al‑Iryānī.

69In section 2, above, there is a mention of amends owed to someone “struck” (mulṭām) but not cut or bruised such that wound‑money would be due. It is unclear whether this would count as a physical or as an attempted offence, kāyin or kādhib.

9) upsets and alarms

As for upsets and alarms, this is when someone for example attacks another at his house or on the road to the point that his family, tribe and he are distressed. No one reaches him [i.e. no‑one hurts him physically] or takes anything from him but he is distressed. If he is alone, he is owed twenty‑five hundred buqshas such as the merchants trade at a rate of two and half riyāls to the hundred. If it was he and his family and his tribe, they are owed a head of cattle which [the offenders] slaughter in their territory, and payment like the twenty‑five [hundred] in cash.

  • 23 Serjeant, 1963, appendix III.

70There may well have been different types of buqsha in circulation, hence a need to specify the exchange rate.23 In recent times as here, there were forty buqshas to the riyāl, which equates to 62.5 riyāls, but I do not know why the amount should be what it is.

  • 24 The grammar here seems to rule out “he” and “they” being they who cause the fright, although it is (...)

71Alone [or] family and tribe. Presumably what is meant is that the wrong is greater if more people suffer the fright.24 The head of cattle, almost certainly a bull, would presumably be slaughtered in the territory of those offended against, as a gesture of appeasement or apology.

72Payment like, reading mithl naṣf, rather than niṣf meaning half.

10) reconciliation

As for reconciliation, this is absolution and truce. If it is war between one tribe and another tribe and mediation has been accepted and they have made a truce, a cease‑fire for a known number of days, on the honour of the headmen from the two sides, they must complete the [whole] period. If one of them has [suffered] a surplus of deaths or wounds, then if aggression occurs from one of them, [whether] an offence [requiring] wound‑money or a killing, this is called shame. He who commits aggression during a truce, even if just a day before the end of the period, must pay for his offence fourfold and is deemed shameful. He must pay tahjūr to the headmen guarantors on whose honour the [truce] agreements [were formed], a bull for the shame for each of them. They spread against him bayḍā wa‑naqā in all the markets of Ḥāshid and Bakīl, and all the tribes rally against him until the hajar of shames for all the headmen is paid.

  • 25 al‑Sudumī, 1993, p. 113, 178‑9; Dresch, 2006, p. 86‑7.

73Absolution, naqā (classical niqā’). The term, which means “purity” or “good name”, is often used of vengeance but can also be used of any just payment that resolves a wrong.25 Here it means simply “an agreement in principle to settle by compensation”. That is what allows the truce.

74Rally against, tashtall ʿalā. Rossi, who transcribes this as tashtal (no tashdīd), gives “assalire”, and we shall meet the word again in section 17, but these days, I think, yashtall can be used both as a passive of yashill, “to take”, and as an intransitive verb meaning “to rise”, “stand up”. The translation here is tentative.

11) offences concerning women

As for judgements for women against men, if a woman offends against a man [by causing] wounds, she owes no shame‑money, just the price of the wound‑money, none other; if it is words, she owes nothing, [for] the woman’s weapon is her tongue. If the error or offence is from a man, he owes her tashwīf of one head of small stock, [to be precise] a sheep, and her dress [money], none other. If a man kills a woman he owes the woman’s blood‑money, which is half the customary blood‑money for a man, if the killing is by error. If it is deliberate, it is deemed shameful (ʿayb) and must be [paid] fourfold, in addition to tashwīf. The [payment] fourfold is half what is due for a man.

  • 26 Dresch, 2006, p. 224.

75Tashwif, see section 5, above. Payment fourfold for offences against women is envisaged in other texts, such as those from Baraṭ.26 At the transition here between a woman offending only by words and a man offending, the phrase khaṭa’ aw faʿl suggests that male offences in general are at issue, not just words. “None other” (lā ghayr) here cannot mean “only” or “no more than”. Presumably tashwif would be due in addition to, for instance, wound‑money.

12) the hijra

As for judgements of the hijra and the one protecting it. If the hijra wrongs those protecting it (al‑muhajjirīn la‑hu), whether through words or an offence or a killing, it owes fourfold. Whoever [of the hijra] commits an error of words, or [violent] offences or killing owes four times what is due from other people. If the error or offence by wounding or killing is by those protecting the hijra, then [the hijra] is due what is [otherwise] due from it [i.e. payment fourfold]. The hijra is the shaykh who is the head of his group or the sayyid [i.e. descendant of the Prophet] over the Arabs or the agent of the settlement, or the learned person who leads the prayers, or the man who has no tribe and is hijra by himself, not siding with anyone, or the servant of a group, like the dawshān or servitor, or those who are chattels of all the people.

  • 27 Cf, al‑Akwaʿ, 1993, p. 28, 30, 41 and passim.

76The principle of symmetry in amends (mā la‑hum ʿalay‑him; what they are due is due from them) is apparent in all hijra agreements that I know of. Payment fourfold is also common. 27

77The breadth of the category hijra is of interest here. During fieldwork thirty years ago, I found many tribesmen were hesitant to use the term of people they thought inferior to themselves: certain families of shaykhs, judges or descendants of the Prophet were clearly hijra, but perhaps not servitors. Here both those above and those below the tribesmen are included, reinforcing one’s feeling that the basic meaning of the term is “set aside”. Kitāb al‑aslāf (folio 13) goes so far as to describe women as muhajjara, being due special amends for offences against them by men.

78Agent of the settlement, amīn al‑maḥall, presumably a scribe, perhaps even someone who keeps documents such as this one. So far as I am aware, there was no formal position of amīn whether tribal or governmental. Rossi has simply “neutrale”.

13) dhimmīs

As for the dhimmī, he is a neighbour / protégé. If he offends [by violence] against his lords, he must be killed. If someone offends against him, then his shame‑money and the wound‑money for his blood are the property of his lords and he [himself] gets nothing. His blood‑money [if he is killed] is five riyāls, none other, [which goes] to his lords.

  • 28 Ḥabshūsh, 1992, p. 55, 1995, p. 94‑5.

79Those of us who would have been dhimmīs may be disappointed to learn we were worth less than a dead dog (section 14, below). Ḥabshūsh, a Sana’ani Jew who took a very romantic view of relations between Jews and tribesmen on his expedition with Halévy to eastern Yemen in 1870, seems to imply a far larger amount being paid, equivalent to that for a slain Muslim.28

14) dogs

As for the blood‑money of a dog, it is seven riyāls to its owners if it was killed from behind. If it was killed from in front, no blood‑money is due because it was the aggressor and the aggressor gets no recompense. If it was killed from behind, so it was [plainly] fleeing [when it was killed], then the offender owes its blood‑money, which is seven riyāls, none other.

15) livestock

As for judgements [concerning] he who offends against livestock and commits aggression against them, such as cows, sheep, donkeys, camels and other chattels which are dear to the Son of Adam, for God on high, be He praised, has created them to be dear to His servant, the Son of Adam. If the offence is by a man, he owes [the beast’s] price and shame‑money like it to recompense the owner of the beast. If the offence is by a woman, she owes nothing but the price [of the animal], none other. This is for deliberate offences. If it was in error, it is called “mistaken”, without intent. One third [of the cost] falls on the owner of the beast and two thirds on the culprit. If it is livestock killing livestock, then to the killer the killed if they are one species. If the killer is from livestock of a different species, such as a camel killing a head of sheep, or cows or donkeys, only the cost of the victim is owed by the culprit’s owner.

80Shame‑money ... to recompense, ḥashm mā taqallada bi‑hi. Although Rossi has a note saying qilāda means dhimma (care, responsibility), the verb taqallada bi does not seem to add anything to the usual meaning of ḥashm.

81Beast, or livestock, qārisha, which al‑Iryānī gives as “a grazing animal of any kind”. Plural qurāsh. With the plural form qawārish the same term can mean “grazing land”.

82Killer / killed. The Arabic looks to be fa‑li‑qātila bi‑l‑maqtūla. The next line, where killing occurs between different species, says only the price of the dead animal is owed (fa‑lā yalzam illā …), suggesting perhaps more than that is owed if they are of the same species. I have to say this seems unlikely. Again, one would think a phrase such as al‑qātila bi‑l‑maqtūl might mean that the owner of the dead animal receives the animal that kills it, but then there is really no contrast between the cases. My own guess would be that, despite the line following, if a donkey kills a donkey then this is just in the nature of donkeys and nothing is owed.

16) mistaken harm

As for a mistaken offence, if it is killing then the killer owes two thirds of the blood‑money, and one third falls on him of the killing [i.e. the dead man’s heir] because it was mistaken, without choice or intent. If it is wound‑money, then a third is dropped. If it is aggression, then the customary blood‑money is due in killing. This is if it is due to the devil’s longing for disorder, and the bull of violence [is to be slaughtered] on the grave, as we mentioned before, and payments (jibāt, instalments) [are made] until he [the dead man] is paid for or the blood‑money is handed over. And likewise for offences such as [require] wound‑money and other things.

  • 29 Dresch, 2006, p. 224.

83Mistaken or mistakenly (ghārib) was explained to me at Jabal Baraṭ some years ago as rather different from khaṭa’ or “error”, although Rossi equates them in a note here. Khaṭa`, which can also refer to “a fault” or “wrong” of any kind, could in this context mean simply “a slip”, such as accidentally discharging a firearm. Ghārib or ghāriba, however, would cover, besides this, cases of mistaken identity, where one shot at the wrong man, or of injuring someone who should not have been there, such as a woman present at a battle.29 In an earlier note Rossi has for ghārib, “uccisore di qualcuno par sbaglio”.

17) bayḍā wa‑naqā

As for bayḍā wa‑naqā, this [involves] a white banner atop a stick, which rallies [everyone] against he who breaks usage and right and current custom. They proceed with it to all the markets belonging to Ḥāshid and Bakīl until all the Arabs rise up against the breaker [of custom and right], until they constrain him [the initial wrongdoer]; and all that happens to him and to what he owns is open (mubāḥ, i.e. licit; no compensation is due) until he has paid what the shaykh of custom has judged. This is bayḍā wa‑naqā. Similarly [with] the one who commits shame, nothing brings him or constrains him [to settle the claim] save bayḍā wa‑naqā, and all the Arabs come together only for bayḍā wa‑naqā

84If we assume that Rossi’s understanding of yashtall in section 10 is correct, we nonetheless face a problem here. At the bottom of the page he has a note saying “la testa del bastone è detta as‑sinnah, la base ʿaqīb”, as if sinna describes the stick on which the flag is set. But the following phrase, al‑sinna wa‑l‑ṣāyiba wa‑l‑ʿurf al‑jārī, is surely formulaic and means sinna has its usual sense of “correct usage”. After the first occurrence of ishtalla, as yashtall, where the stick seems the subject of the verb, he has a word in brackets that I am unsure of (perhaps “sollevato”); after the second, as tashtall, he has “si levano”. Reading yashtall ʿalā kāsir al‑sinna, which it looks like to me in the Arabic, is more attractive than Rossi’s reading of ʿalā ra’s al‑sinna, though the latter may work at the second mention.

  • 30 Dresch, 1987.
  • 31 Dresch, 2006, p. 130‑1, 233, 244‑5.

85For an account of the practice, see my summary elsewhere,30 which draws on Glaser’s descriptions from the late 19th century. These make clear how seriously the institution was taken at that date. Once the stick and the white flag are exhibited, those summonsed have to settle the claim or submit it to formal judgement if they are not to be treated as pariahs. The Baraṭ texts describe quite a complex procedure.31

18) appeal against judgement

As for rebuttal and assertion this is to do with oath‑taking between one party and another in the presence of a shaykh of custom, when the claimant asserts his claim via supporters [i.e. people who swear on his behalf]. As for drawing to [fresh judgement in] error, this is if one of the parties wants to draw the shaykh dealing with [the case] and [draw] the [other] party to the appeal‑judge dealt with by all Khawlān or others from Ḥāshid and Bakīl. The party who draws them [to appeal] by rejecting the shaykh dealing [with the case] must give the shaykh a “crutch” of five muskets, or ten muskets, or twenty muskets or forty muskets according to the value of the [original] plea. The most is forty muskets and the least is five muskets, to be returned. If the judgement and ruling of the shaykh concerned is correct, then the party owes him amends (tahjūr). If the appeal‑judge overturns his judgement then nothing is owed and they give back to him what he put down [i.e. the firearms given as a pledge].

86Rebuttal, daḥn. Landberg gives “pousser”. Assertion, maḍā, but the possible meanings of the root are so many (to pass, go, complete, among others) that one cannot be sure. From section 19, however, we can be fairly sure that the subject of yumaḍḍī is the claimant, not the shaykh.

87On the first page of his transcription, where this phrase appears in the list of topics dealt with, Rossi has a note, which might apply to the whole phrase daḥn wa‑maḍā, saying “confutazione [originally, he put smentita] delle affermazioni di altri a mezzo testimoni”.

  • 32 al‑Sudumī, 1993, p. 50, 82, 83, 175.

88Appeal‑judge, marāghah. The term, which can also mean “weighty custom”, is quite widely attested. See e.g. al‑Sudumī, who also notes “drawing” (jarr) to fresh judgement and the same image of firearms pledged as a “crutch” or “support” (ʿukkāz, taʿkīz).32.

19) the cursèd jinns

And this is what the aforementioned appeal‑judge [ʿAbd al‑Rabb al‑Jabrī Ṣayyāṭ] says. With [all] this there are three servants of cursèd Satan among the jinn. The first is called Muṭaybizān, the second Mushayʿibān, and the third Munaydimān. If it is Muṭaybizān, what he does is goad the two parties so they begin fighting and killing, until killing results from the enmity of the parties, and Muṭaybizān is dismissed. After him comes Mushayʿibān, who splits off each party on his own and [the party to the dispute] says, “By God, I swear I won’t pay (aghram) what I have [for the wrong I did]. [Instead] I’ll assert what I say. I’ll pay out sheep, grain and clarified butter and win over the shaykhs and notables.” He [Mushayʿibān] sows division, until they finish off what they have [i.e. they bankrupt themselves], and Mushayʿibān is dismissed. Then Munaydimān approaches, and each [party] goes to him on his own and says “Oh woe [is me], even though I spent what I have of sheep, grain and clarified butter, it was all eaten up, so my children and I are worn out, me and mine” And the second says, “Though I gathered my bloodwite and did [i.e. compensated for] the dead and paid what I owed (gharamt) from my property, now [people’s] speech is on my head [i.e. I am still blamed], Oh woe”. And each of them cries [alone] in his place.

89The name of each jinn derives from a simple verb, and the three of them might be called in English the Goader, the Splitter, and the Causer of Regret. For ṭabaza meaning to goad or provoke see al‑Iryānī. Rossi has “spinge”.

90Mushayʿibān’s intervention seems to encourage the parties not to settle the case but to entertain the arbitrators with the aim of winning them over (jalb). In a difficult case one might have to provide them hospitality for a long time. The wording is very unclear, but the setting is easy to imagine.

91“Oh, woe!” reads better than “You who repent” for yā nadamāh, although I cannot find this in the dictionaries. Robert Wilson suggests a tentative parallel with classical asafāh.

92All eaten up, akala‑hu ilā ra’s. The translation is tentative throughout, but reading aḍbaḥa (to be tired, worn out) for Rossi’s aṣbaḥa is attractive in the middle part; Landberg gives “être las, dégouté”.

conclusion

[This] to the point where the shaykh dealing with [a case] will not issue a judgement of his own [literally, from his tongue] unless the disputing parties are sincere and none of them will contradict what the shaykh says. [This, also] to the point where this book is called tāghūt [i.e. something badly at odds with Islam]. Most [of what is wrong] is [actually due to] the devil’s work, God’s curse on him. But the fathers and forefathers were as they were. As for small matters, they depend on intelligence, discernment and policy. And peace.

93From his tongue, min lisān‑hu. Rossi rightly gives “conoscenza, logica” in an earlier note on farāsa, but there is nothing unusual about the phrasing here. Similarly, qawl (or sometimes qiyāl) can mean judgement, decision or opinion.

94Parsing this last section is difficult. Rossi’s Arabic has tusammā but his Latin transcription has yusammā, after which he has a red dot for a full stop or period, and he capitalises the first letter of hādha as if to start a new sentence before transcribing his Arabic akthar min as aktharäh min. One suspects a word may be missing somewhere. The repetition of ḥattā in what look to be sequential sentences is also uncomfortable. I can only reproduce the Arabic version and guess, I hope fairly, at what was meant.

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Bibliographie

Abū Ghānim, Faḍl, al‑Bunya al‑qabaliyya fī al‑yaman, bayna l‑istimrār wa‑taghyīr, Damascus, Maṭbaʿat al‑kātib al‑ʿarabī, 1985.

al‑Akwaʿ, Ismāʿīl ʿAlī, al‑Madkhal ilā maʿrifa hijar al‑ʿilm wa‑maʿāqil‑hu fī al‑yaman, Damascus, Dār al‑fikr; Beirut, Dār al‑fikr al‑muʿāṣir, 1993.

Dresch, P., “Placing the blame: a means of enforcing obligations in Upper Yemen”, Anthropos Vol. 82 4/6, 1987, p. 427‑443.

Dresch, P., Tribes, Government, and History in Yemen, Oxford, Clarendon Press, 1989.

Dresch, P., The Rules of Baraṭ: tribal documents from Yemen, Sana’a, Centre Français d’Archéologie et de Sciences Sociales, Deutsche Archäologisches Institut, 2006.

Dresch, P., “Aspects of non‑state law: early Yemen and perpetual peace” in P. Dresch & H. Skoda (eds), Legalism: anthropology and history, Oxford, Oxford University Press, 2012, p. 145‑72.

Dresch, P., “Outlawry, exile, and banishment: reflections on community and justice” in F. Pirie & J. Scheele (eds), Legalism: community and justice, Oxford, Oxford University Press, 2014, p. 97‑124.

Dresch, P., “Written law as words to live by” in P. Dresch & J. Scheele (eds), Legalism: rules and categories, Oxford, Oxford University Press, 2015, p. 53‑78.

Ḥabshūsh, Ḥayīm, Ru’yat al‑yaman, bayna Ḥabshūsh wa‑Halévy, Sana’a, Markaz al‑dirāsāt wa‑l‑buḥūth al‑yamanī, 1992.

Ḥabshūsh, Ḥayīm, Yémen (ed. and trans. Samia Naïm‑Sanbar), Paris, Actes Sud, 1995.

al‑Iryānī, Muṭahhar ʿAlī, al‑Muʿjam al‑yamanī fī al‑lugha wa‑l‑turāth, Damascus, Dār al‑fikr, 1996.

Kazimirski, A de B., Dictionnaire arabe français (2 vols.), Paris, Maisonneuve, 1860.

Landberg, C., Glossaire datînois (3 vols.), Leiden, Brill, 1920–42.

Pitt‑Rivers, J., “The law of hospitality”, in The Fate of Shechem (Cambridge Studies in Social Anthropology, 19), Cambridge, Cambridge University Press, 1977, p. 94‑112.

Rossi, E., “Appunti di dialettologia del Yemen”, Rivista degli studi orientali Vol. 17, 1938a, p. 230‑265.

Rossi, E., “Nuove osservazioni sui dialetti del Yemen”, Rivista degli studi orientali Vol. 17, 1938b, p. 460‑472.

Rossi, E., “Il diritto consuetudinario delle tribu arabe del Yemen”, Rivista degli studi orientali Vol. 23, 1948, p. 1‑36.

Serjeant, R.B., “Materials for South Arabian history (part two)”, Bulletin of the School of Oriental and African Studies, Vol. 13/3, 1950, p. 581‑601.

Serjeant, R.B., The Portugese off the South Arabian Coast, Oxford, Clarendon Press, 1963.

Serjeant, R.B., “The cultivation of cereals in mediaeval Yemen”, Arabian Studies, Vol. 1, 1974, p. 25‑74.

Serjeant, R.B., “The post‑medieval and modern history of Ṣanʿā’ and the Yemen, ca. 953–1382/1515–1962” in R.B. Serjeant & R. Lewcock (eds) Ṣan`ā’: an Arabian Islamic city, London, World of Islam Festival Trust, 1983, p. 68‑107.

Serjeant, R.B., Customary and Sharīʿah Law in Arabian Society, Aldershot, Variorum Reprints, 1991.

Al‑Sudumī, Muḥammad Yaḥyā, Naẓariyya al‑ʿuqūba fī al‑sharī`a wa‑l‑aʿrāf al‑qabaliyya fī aḥkām al‑qabā’il al‑yamaniyya wa‑mafhūm al‑niqā’ wa‑l‑ʿayb, Sana’a, al‑Afāq li‑l‑ṭabʿah wa‑l‑nashr, 1993.

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Notes

1 For a description of this longer text see Serjeant, 1950, p. 589‑91. For mentions of the “corpus” see e.g. Serjeant, 1991: ch. III, p. 12, 29; ch. V, p. 151. Rossi’s own finds are described in his article (Rossi, 1948), and the second of them is reproduced as a photocopy in Abū Ghānim, 1985.

2 I am extremely grateful to Giovanni Canova for finding three of the Rossi texts in Rome, when many people had denied they were there, and to Daniela Amaldi for sending me scanned copies. I should also like to thank Professor Canova, Dr Robert Wilson, and Laurent Damesin for suggestions on several passages, although the decisions made, and thus the mistakes, are mine.

3 For example Dresch, 2012, 2014, 2015.

4 Pitt‑Rivers, 1977.

5 Rossi, 1948, p. 17.

6 Rossi’s competence, it should go without saying, is not all in doubt. And, given how short his assignments to Yemen were, it is remarkable how wide his acquaintance was with regional dialects. See Rossi, 1938a, 1938b. Where I have added a word to the Arabic text it appears in square brackets. Where I have favoured a reading of my own over one of Rossi’s his appears in round brackets.

7 I have not inserted hamzas where the text omits them. Nor have I usually added or deleted terms even where this obviously needs doing. The aim is to be sure that anyone who reads Arabic should be able to guess what the original should have been before copyists or the scribe himself miswrote it. Prepositions are often missing or faulty, subject and verb sometimes disagree in number, and pronouns occur when they are not wanted.The forms of alif have been treated cautiously. While there is no doubt what ḥattā or ʿalā should look like in Arabic script and an upright alif can safely be replaced, there are several endings of weak verbs one cannot be so sure of; nor are and alif maqṣūra (hence sometimes active and passive voices) distinguished reliably. An occasional tashdīd has been added for ease of reading, as with musamman, where an upright alif has also been adjusted.

8 For a brief account of the period, largely drawn from al‑Jarmūzī’s al‑Ṭabaq al‑ḥalwā, see Serjeant, 1983.

9 See Dresch, 1989, index.

10 Dresch, 1989, p. 120‑21, 406‑7.

11 serjeant, 1974, p. 63.

12 See Dresch, 1987.

13 Cf. Dresch, 2006, p. 242.

14 al‑Akwaʿ, 1995, p. 39

15 Rossi, 1948, p. 19, 20, 31; Dresch, 2014, p. 117.

16 See Dresch, 1989, p. 147.

17 Cf. Dresch, 2014, p. 114; Abū Ghānim, 1985, p. 378.

18 Dresch, 2006, p. 79, 185, 227.

19 Dresch, 2006, p. 78‑9, 2012, p. 167‑8.

20 For ḥashm see also al‑Sudumī, 1993, p. 52, 55, 122.

21 See Dresch, 1989, p. 90‑2, 95‑6.

22 Dresch, 2006, p. 225.

23 Serjeant, 1963, appendix III.

24 The grammar here seems to rule out “he” and “they” being they who cause the fright, although it is the number of offenders that counts in other texts on tribal law, cf. Dresch, 2014, p. 113‑14 citing Kitāb al‑tabyīn fī l‑manʿ.

25 al‑Sudumī, 1993, p. 113, 178‑9; Dresch, 2006, p. 86‑7.

26 Dresch, 2006, p. 224.

27 Cf, al‑Akwaʿ, 1993, p. 28, 30, 41 and passim.

28 Ḥabshūsh, 1992, p. 55, 1995, p. 94‑5.

29 Dresch, 2006, p. 224.

30 Dresch, 1987.

31 Dresch, 2006, p. 130‑1, 233, 244‑5.

32 al‑Sudumī, 1993, p. 50, 82, 83, 175.

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Paul Dresch, « Rossi’s Kitāb al-Sinna: A Seventeenth-Century Note of Tribal Law in Yemen », Arabian Humanities [En ligne], 9 | 2017, mis en ligne le 24 mai 2018, consulté le 15 octobre 2018. URL : http://journals.openedition.org/cy/3489 ; DOI : 10.4000/cy.3489

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